[00:00:01] Speaker 01:
Good morning, your honors.

[00:00:03] Speaker 01:
May it please the court, Gail Ivins, appearing on behalf of appellant Berta Rhodes.

[00:00:09] Speaker 01:
I wanted to start this morning with the language of the statute, 18 USC 1958A, because I think that's where we begin and end in this case.

[00:00:21] Speaker 01:
Whoever uses any facility of interstate commerce with intent that a murder be committed

[00:00:31] Speaker 01:
as consideration for the receipt of money, something of punitive value.

[00:00:37] Speaker 01:
And so the question here is, was the judge wrong when he modified this court's model instruction to add that it did not matter when the use of interstate commerce occurred?

[00:00:54] Speaker 01:
And I think clearly he was wrong, and the jury instruction that was given was wrong.

[00:01:01] Speaker 01:
This court's model instruction actually specifically refers to Driggers, the 2009 case that's referenced in the opening brief, where this court specifically discussed, although it didn't hang its hat on all of this.

[00:01:17] Speaker 02:
And what was wrong about him as to the time assignments?

[00:01:22] Speaker 01:
The timing, what's wrong as to it?

[00:01:24] Speaker 01:
If you're going to use a facility of interstate commerce with intent,

[00:01:31] Speaker 01:
then it needs to happen in the same time frame.

[00:01:35] Speaker 02:
You can't... By the same time frame, do you mean before the killing or after the killing?

[00:01:41] Speaker 01:
The killing is actually not the important thing, right?

[00:01:44] Speaker 01:
Because this statute is not a murder statute.

[00:01:49] Speaker 01:
Right?

[00:01:49] Speaker 03:
So what Matt... It's a murder for hire.

[00:01:53] Speaker 01:
Yes, but it doesn't matter if there's ever any physical injury to the, you know, proposed victim.

[00:01:59] Speaker 01:
It doesn't matter what happens.

[00:02:01] Speaker 01:
What matters is you use the facility of interstate commerce and you have that intent.

[00:02:07] Speaker 04:
Yes?

[00:02:08] Speaker 04:
Hold on for a second.

[00:02:09] Speaker 04:
I'm not hearing the judges very well.

[00:02:11] Speaker 04:
I can hear you well, but I'm not hearing the judges well.

[00:02:15] Speaker 04:
OK.

[00:02:17] Speaker 02:
Can you hear me now?

[00:02:18] Speaker 02:
How about now?

[00:02:20] Speaker 04:
Yes, that's better.

[00:02:21] Speaker 02:
My question to you, Ms.

[00:02:22] Speaker 02:
Ivins, is that you say that the judge got the timing wrong.

[00:02:27] Speaker 02:
Tell me what you think the correct timing was and tell me what you think the judge got wrong as to the timing.

[00:02:38] Speaker 01:
When the judge added the language, additional language that's not in this court's model instruction,

[00:02:47] Speaker 01:
that it does not matter when the interstate commerce facility was used.

[00:02:54] Speaker 01:
He opened up this huge possibility for the government to argue that all of those wire transfers that took place the year after the murder were uses of interstate commerce and somehow that if the intent happened before

[00:03:14] Speaker 01:
the murder, those can count as some kind of jurisdictional hook.

[00:03:17] Speaker 01:
But this is an element.

[00:03:19] Speaker 01:
This is not a jurisdictional hook.

[00:03:21] Speaker 01:
And so I think we have to very carefully look at the statute.

[00:03:24] Speaker 03:
But don't you think that the evidence shows that there was an intent to commit a murder for hire before the incident took place?

[00:03:36] Speaker 01:
On whose behalf?

[00:03:37] Speaker 01:
So clearly, Etienne Robinson and Marshall

[00:03:43] Speaker 01:
intended to commit a murder, right?

[00:03:45] Speaker 01:
I mean, we're clear that evidence all over the place that they intended to commit a murder.

[00:03:52] Speaker 01:
And Marshall testified that not on the telephone, right, in person, there was a discussion that he recited to the jury where my client said, OK, fine, I'll do it for $5,000.

[00:04:04] Speaker 01:
That's an in-person.

[00:04:07] Speaker 01:
And if that's all that happened, there is no federal murder for hire.

[00:04:12] Speaker 01:
There may be all sorts of state problems with that.

[00:04:16] Speaker 01:
But what is critical for this to be a federal crime is that the discussion happen on the telephone, on a cell phone.

[00:04:23] Speaker 03:
Wait a second, though.

[00:04:25] Speaker 03:
Are you suggesting, though, when they rely here on the wire transfers, that if that's what they're going to do, the money has to be transferred before

[00:04:39] Speaker 01:
No, the money does not have to be transferred before, right?

[00:04:42] Speaker 01:
The crime is you use interstate commerce, you have the intent, and the agreement is that there will be money or something of value that happens.

[00:04:51] Speaker 01:
It doesn't matter when that happens.

[00:04:54] Speaker 01:
I'm just saying that the use of interstate commerce itself has to happen in a way that is with the intent.

[00:05:01] Speaker 02:
Weren't there a series of telephone conversations involving roads before the murder, which

[00:05:09] Speaker 02:
conversations dropped off after the murder.

[00:05:12] Speaker 02:
Is that perhaps evidence from which you can infer that the murder was the subject of the conversations?

[00:05:20] Speaker 01:
You could infer that or you can further talking about dealing drugs.

[00:05:23] Speaker 01:
You can infer that they were buddies back in the day and, you know, Robinson had been gone a year.

[00:05:28] Speaker 02:
It's really for the jury to infer, right?

[00:05:30] Speaker 01:
And if the instruction had been correct and the jury had convicted, we would have a different case.

[00:05:37] Speaker 01:
But the instruction allowed the jury to ignore

[00:05:40] Speaker 01:
the evidence that was so limited that it had resulted in a mistrial in the previous trial and gave them this hook to allow conviction based on the wire transfers.

[00:05:52] Speaker 01:
So yes, they could have inferred that, but the jury instruction was wrong.

[00:05:56] Speaker 02:
If there was evidence from which the jury could infer from the instruction given that there was discussion over telephone involving the murder between Rhodes and Robinson or Marshall,

[00:06:11] Speaker 02:
And the instruction was an error, right?

[00:06:16] Speaker 02:
Wasn't the error harmless?

[00:06:17] Speaker 01:
The error is clearly not harmless because the only evidence we have of what was discussed in those calls is that there were calls, right?

[00:06:26] Speaker 01:
The only testimony that Marshall gave about the content of the calls is a call that was made afterwards where he said, you know, just get me get back to the South and I'll get you your money.

[00:06:37] Speaker 01:
And that happened afterwards.

[00:06:38] Speaker 01:
So we don't have content.

[00:06:40] Speaker 01:
We don't have cell phone location data.

[00:06:43] Speaker 01:
We don't have anything to support this idea that what they were talking about was the murder rather than getting drugs or how are you, buddy?

[00:06:51] Speaker 01:
It's been a long time since I saw you.

[00:06:53] Speaker 01:
Why did you move to Louisiana?

[00:06:54] Speaker 01:
How much trouble are you in?

[00:06:55] Speaker 01:
We don't have evidence of what was the content of those calls.

[00:07:01] Speaker 03:
As I understand it, the crime is

[00:07:05] Speaker 03:
murder, you know, with payment for money.

[00:07:12] Speaker 01:
Well, it doesn't, there doesn't have to be a murder, right?

[00:07:14] Speaker 01:
Because it can be.

[00:07:15] Speaker 01:
No, but that's the basis of what the crime is.

[00:07:18] Speaker 01:
The crime is clearly not murder.

[00:07:19] Speaker 01:
It's not a murder statute, right?

[00:07:21] Speaker 01:
It's an agreement.

[00:07:22] Speaker 03:
What was in play here?

[00:07:24] Speaker 01:
What was in play here?

[00:07:25] Speaker 01:
Yes.

[00:07:26] Speaker 01:
The, whether they're.

[00:07:27] Speaker 01:
Murder for hire.

[00:07:28] Speaker 01:
That's the name of the statute.

[00:07:30] Speaker 01:
Wasn't there a murder here?

[00:07:34] Speaker 01:
There was, but all that does is create life imprisonment as a punishment.

[00:07:38] Speaker 01:
The punishments are staggered.

[00:07:41] Speaker 01:
So if you agree to commit the murder and you use interstate commerce,

[00:07:47] Speaker 01:
but nothing happens, as is often the case.

[00:07:50] Speaker 01:
That's a crime, and it's the same crime, but you only get 10 years, or up to 10 years.

[00:07:55] Speaker 01:
If you do it and someone's hurt, like you shoot them and you get them in the arm and they don't die, then I think it's 20 years, right?

[00:08:01] Speaker 01:
Only if there's an actual murder, death, someone dies, then you get the mandatory life in prison.

[00:08:07] Speaker 03:
But look, the statute, though, has two hooks for hire, a murderer, or an agreement to murder,

[00:08:18] Speaker 03:
and payment, the higher, right?

[00:08:22] Speaker 03:
Why can't interstate commerce be used to complete the payment?

[00:08:30] Speaker 01:
The language of the statute has payment as the third element, and the first two elements clearly say you have to have the intent with.

[00:08:40] Speaker 01:
And this court has described that language in Driggers, Ritter, and Temkin.

[00:08:47] Speaker 01:
as something that happens concurrently.

[00:08:51] Speaker 01:
So in Temkin, which is a 10-year-old case that Judge Wardlaw authored, the analysis included the fact that when there was this July 7th phone call when the defendant called the purported killer and said, please come to my state and murder my ex-wife, this court said that's enough for murder for hire because that phone call happened and that discussion happened.

[00:09:18] Speaker 01:
on July 7th, and so now we're done.

[00:09:20] Speaker 01:
It doesn't matter whether a murder happened or not.

[00:09:26] Speaker 01:
But I mean, I think this court has recognized at least the premise of my argument.

[00:09:31] Speaker 01:
And what I think, I'm not sure.

[00:09:34] Speaker 01:
I mean, the government, I think what Judge Alsop was thinking was that somehow as long as my client later had the intent, this is the part I don't understand.

[00:09:42] Speaker 01:
But you're saying somehow whether he had the tent during when the interstate commerce facilities used doesn't matter.

[00:09:49] Speaker 03:
My understanding of the record was that there was an agreement

[00:09:53] Speaker 03:
For murder for hire, murder was completed, the payment was made after the murder, correct?

[00:10:01] Speaker 01:
That is the government's theory of the case, but the use of interstate commerce has to be with the intent.

[00:10:11] Speaker 01:
Well, they... Doesn't matter.

[00:10:13] Speaker 01:
I mean, yes.

[00:10:14] Speaker 03:
I mean, maybe they... Let's suppose that they paid them, you know, right there

[00:10:18] Speaker 03:
Maybe he had $5,000 in cash, and then a day later, the murder's completed and he just gives him $5,000.

[00:10:23] Speaker 03:
Right.

[00:10:24] Speaker 03:
Would that be a crime?

[00:10:26] Speaker 01:
Yes.

[00:10:27] Speaker 01:
If the court's premise is correct, it doesn't matter how the payment was made.

[00:10:32] Speaker 03:
No, but it does.

[00:10:37] Speaker 03:
Would that be a violation of this statute?

[00:10:39] Speaker 01:
As long as when the discussion to do the murder and the agreement to do the murder happened using a facility of interstate commerce,

[00:10:48] Speaker 01:
It doesn't matter how the payment was made as long as there was an agreement that there would be payment.

[00:10:54] Speaker 01:
The payment can be five years later, as long as there was an agreement that there would be payment.

[00:11:00] Speaker 01:
So I think my point is this is an element of the offense.

[00:11:04] Speaker 01:
It's not the jurisdictional hook.

[00:11:06] Speaker 01:
If we were talking about just a jurisdictional hook, then maybe later interstate commerce transfers would matter.

[00:11:12] Speaker 01:
But we're not talking about that.

[00:11:14] Speaker 01:
We're talking about whether under the statute

[00:11:18] Speaker 01:
later interstate commerce, the later wire transfers, somehow can be converted into... It's evidence of a prior intent, isn't it?

[00:11:30] Speaker 01:
Yes.

[00:11:30] Speaker 01:
Sure, sure.

[00:11:32] Speaker 01:
That's some evidence of a prior intent.

[00:11:33] Speaker 01:
There also was, I mean, I think at the end of the day, the question is whether the error was harmless.

[00:11:38] Speaker 01:
And so the question is not necessarily

[00:11:41] Speaker 01:
Is there any way to look at this evidence to support the verdict?

[00:11:44] Speaker 01:
The question on de novo review is whether this jury instruction itself was a misstatement of the law.

[00:11:50] Speaker 04:
And then once we do- Ms.

[00:11:52] Speaker 04:
Ivins, you're saying as a matter of law, the language that a murder be committed necessarily requires the use of the interstate facility before the murder is committed.

[00:12:11] Speaker 04:
because the language of the statute is the murder will happen later.

[00:12:15] Speaker 04:
Yes.

[00:12:18] Speaker 01:
Okay.

[00:12:18] Speaker 01:
And the murder doesn't have to happen, right?

[00:12:20] Speaker 01:
It's the agreement that there will be a murder that has to happen.

[00:12:23] Speaker 04:
The murder does not have to happen.

[00:12:25] Speaker 04:
There can be any number of results that could happen, but it has to be used when you have the intent, which necessarily proceeds.

[00:12:36] Speaker 04:
I saw that Judge Alsop did say it doesn't matter whether the interstate... He didn't need to say that.

[00:12:45] Speaker 04:
He had already correctly instructed.

[00:12:48] Speaker 01:
I mean, if you look at also the other issues in the briefing, and I see I'm about to my two minutes for reserving for rebuttal, but if you look at the other issues, et cetera, I clearly, Judge Alsop was unhappy that there was a mistrial, and I think he was working very hard to

[00:13:03] Speaker 01:
to have a better trial so that if there was going to be a conviction, there could be a conviction.

[00:13:06] Speaker 01:
And I understand that.

[00:13:08] Speaker 01:
But his addition of that language was legally incorrect.

[00:13:10] Speaker 01:
And I'd like to reserve the rest of my time for rebuttal.

[00:13:27] Speaker 00:
Good morning.

[00:13:28] Speaker 00:
May it please the court?

[00:13:29] Speaker 00:
Annie Schaefer, the United States.

[00:13:32] Speaker 03:
Good morning.

[00:13:34] Speaker 00:
Because my friend on the other side focused on the statutory issue here, I'm going to turn to that first.

[00:13:43] Speaker 00:
It appears that we, that Rhodes and the government agree on one thing, and that is the criminal intent here has to occur with the interstate activity.

[00:13:53] Speaker 00:
That's, I think what we do disagree on is what that criminal intent entails, apparently.

[00:14:01] Speaker 00:
And the government's reading

[00:14:03] Speaker 00:
is that the intent here is that a murder for hire occur, that a murder for hire be committed.

[00:14:11] Speaker 00:
And I think that comports with the text of the statute.

[00:14:14] Speaker 00:
It comports with others, and it is supported by other canons of statutory interpretation, including the surrounding text, the legislative purpose and history, and the case law that has come out interpreting this particular statute.

[00:14:28] Speaker 00:
So I want to start with the text, and I know my colleague on the other side has already read it, but I want to focus on the language here, specifically with the intent clause.

[00:14:37] Speaker 00:
It says, with intent that a murder be committed in violation of the laws of any state or the United States as consideration for the receipt of or as consideration for a promise or agreement to pay anything of pecuniary value.

[00:14:53] Speaker 00:
And then there's a second clause there, or who conspires to do so.

[00:14:57] Speaker 00:
I think if we break down each of these parts of the text, I think it absolutely supports the government's reading here, which is that the intended crime is a murder for hire.

[00:15:08] Speaker 00:
And I think Judge Pai, as your questions were going to that.

[00:15:11] Speaker 00:
I think we agree that a murder, if you're just intending a murder, it's not sufficient.

[00:15:15] Speaker 00:
But the intent here is that there's a murder being exchanged for something of pecuniary value.

[00:15:21] Speaker 00:
And so our reading of that language B, which I think is what Rhodes hangs his hat on, is that B committed is forward-looking.

[00:15:28] Speaker 00:
So his reading is essentially that a murder must be committed in the future.

[00:15:33] Speaker 00:
But our reading of it is that Congress did not intend for such narrow of an interpretation of this particular statute.

[00:15:39] Speaker 00:
Instead, if you look to the extent that there's any ambiguity with this language, with the language B committed, which we read as connecting it to the consideration aspect,

[00:15:51] Speaker 00:
to the two conditions here, which is be committed in violation of a state or federal law, and it has to be committed as consideration for either receipt of something of value or consideration for a promise or agreement to pay.

[00:16:07] Speaker 00:
I think when you look at the statutory, when you look at the legislative history here, the Senate report from 1983 makes it very clear that the statute was meant to criminalize both

[00:16:18] Speaker 00:
The hitman and also the person who is soliciting or arranging for that murder for hire Okay, so now Relate that also the evidence here So with the evidence here your honor we have essentially a case where they're leading up to this murder for hire we have a number of

[00:16:39] Speaker 00:
phone calls that were being made in the presence of Mr. Craig Marshall.

[00:16:44] Speaker 00:
There were text conversations and there were phone conversations.

[00:16:47] Speaker 00:
Those are shown by the phone records that were admitted at trial.

[00:16:51] Speaker 00:
It was also shown that with the cell phone location records that these cell phones were operating in the area leading up to where the murder occurred.

[00:17:01] Speaker 00:
And so you have quite a bit of evidence of essentially use of interstate facilities prior to the murder.

[00:17:08] Speaker 00:
What we have also is we have the evidence after the murder where this murder for hire was completed only once the payments were being made.

[00:17:16] Speaker 00:
Each of these wires after the murder for hire scheme was part and parcel

[00:17:21] Speaker 00:
to this intended murder for hire.

[00:17:23] Speaker 00:
And so every payment that was made was made with the requisite criminal intent.

[00:17:28] Speaker 00:
And again, what the government did in this case was it did not have the cell phone records, specifically did not have the content.

[00:17:35] Speaker 00:
Typically, we don't get content without a wire or some other sort of surreptitious recording.

[00:17:40] Speaker 00:
of phone calls, but the government put on Agent Heidelman in this case to explain why these were absent.

[00:17:46] Speaker 00:
It wasn't until about a year or a year and a half into the investigation that Rhodes was named as the hitman that Mario Robinson had hired, and he was named by Marshall.

[00:17:55] Speaker 00:
At that point, the investigators went to go look for the phone records, but they were no longer in existence or held by the company.

[00:18:03] Speaker 00:
And that was put forth before the jury as far as the absence of those records.

[00:18:07] Speaker 00:
But there's plenty of cases where we don't necessarily have content, and it's a reasonable inference for a jury to make that there is still a use of interstate facility, because there are certainly phone calls and texts between those two parties.

[00:18:19] Speaker 00:
And the timing of those calls, as they essentially increased up until the time of the murder and then dropped off significantly right after, also supports the inference here that Rhodes

[00:18:32] Speaker 00:
was guilty of this particular offense.

[00:18:34] Speaker 02:
Your position is that there's evidence both before the murder and after the murder which supports the instruction.

[00:18:41] Speaker 00:
Yes, Your Honor, that was presented at trial.

[00:18:42] Speaker 02:
I have a question that hasn't been brought up by Ms.

[00:18:45] Speaker 02:
Ivins.

[00:18:47] Speaker 02:
What was the evidence upon which Judge Alsop answered the question from the jury, no, as to Mr. Rhodes' involvement

[00:19:00] Speaker 02:
other than as a trigger man.

[00:19:02] Speaker 00:
Yes, Your Honor.

[00:19:04] Speaker 02:
Because if there was no evidence of his involvement in the murder scheme other than as a trigger man, isn't it an error to instruct on that theory?

[00:19:17] Speaker 00:
No, not necessarily, Your Honor.

[00:19:19] Speaker 00:
The instruction here, the district court made clear, was not based on the evidence.

[00:19:22] Speaker 00:
It was to answer the jury's legal question.

[00:19:26] Speaker 02:
Yes, but the instruction was, you may find him guilty if you find him to be, and the word was, involved.

[00:19:36] Speaker 02:
Now, what was the evidence of Rhodes' involvement other than as a trigger man?

[00:19:44] Speaker 00:
Well, his involvement was, again, Craig Marshall testified that in the two days preceding the murder, there were several conversations in which Rhodes agreed and said, I will do that for $5,000.

[00:19:54] Speaker 00:
He didn't have to be the hitman in that.

[00:19:56] Speaker 00:
He could have hired someone else to be the hitman.

[00:19:58] Speaker 00:
There was evidence before the jury that he actually already engaged in murder for hire by expressing, as long as there was a use of an interstate facility or some sort of... But then you have to prove that what

[00:20:12] Speaker 02:
Acts of a hired hitman by Rhodes Resulted that was part of this instruction resulted in the murder So he yes, there's no evidence that he that he hired anybody else right no your honor the government's theory and the evidence here

[00:20:33] Speaker 00:
as the factual narrative that was provided by Craig Marshall, which was the government's key witness, was that Rose was indeed the hitman.

[00:20:42] Speaker 00:
Marshall identified Rose as being there as an eyewitness.

[00:20:44] Speaker 02:
And the jury asked, can we convict this defendant without, if we, can we convict this defendant if he didn't pull the trigger, right?

[00:20:55] Speaker 00:
That was the question, yes, Your Honor.

[00:20:56] Speaker 02:
So, and the judge said, yes, you can, by his answer,

[00:21:01] Speaker 02:
if you find that he was involved.

[00:21:03] Speaker 02:
Now, my question to you is, what was the evidence of involvement other than being the trigger man?

[00:21:09] Speaker 00:
Well, Your Honor, I think the evidence is the, essentially, the disagreement, the conspiracy, the planning of the murder for hire.

[00:21:15] Speaker 00:
The conversations which occurred both over text and on the phone.

[00:21:18] Speaker 02:
But it's a conversation which is disconnected by any evidence from the actual murder.

[00:21:23] Speaker 00:
Yes, Your Honor, but I don't think as a matter of law that matters.

[00:21:26] Speaker 00:
Because the statute here, the crime of which he was charged,

[00:21:30] Speaker 00:
and the elements that were given to the jury, again, require only that a use of an interstate facility with a requisite murder-for-hire intent.

[00:21:39] Speaker 00:
And the statute is very clear that it is intended to criminalize both the hitman and the person who hires or arranges for a hitman or is involved in that murder-for-hire scheme.

[00:21:51] Speaker 04:
Yes, Your Honor?

[00:21:52] Speaker 04:
So the jury was actually perplexed as to whether Rhodes actually pulled the trigger or not.

[00:22:01] Speaker 04:
So if he wasn't the hitman, what evidence was before the jury that he was involved?

[00:22:12] Speaker 00:
I think there, Your Honor, the evidence of his involvement, again, comes from a lot of these same records that show that he agreed.

[00:22:20] Speaker 04:
Do you think it's the phone calls without content?

[00:22:23] Speaker 00:
Phone calls without content and Craig Marshall's testimony as to the conversations that they were having that day both when he agreed in front of Marshall and said yes I'll take care of this for you for $5,000 essentially is what he said and then when they were at the liquor store right before they went to apartment C and Robinson came back Marshall was watching Robinson talk to Rhodes right outside the liquor store Robinson came back to the car and told Marshall

[00:22:50] Speaker 00:
that Moe, which is Rhodes' nickname, is going to do it right here.

[00:22:53] Speaker 00:
And Marshall said in response, that's a terrible idea.

[00:22:57] Speaker 00:
This will come back to me because the rental car was in his girlfriend's name.

[00:23:01] Speaker 00:
So he watched Robinson go back to Rhodes, have some more discussion.

[00:23:07] Speaker 00:
And then they came back.

[00:23:09] Speaker 00:
And that's when Mario said, OK, we're going to go to apartment C. And that's when they drove to the crime scene.

[00:23:15] Speaker 02:
Ms.

[00:23:15] Speaker 02:
Shea, would you turn to ER 1048?

[00:23:22] Speaker 02:
at line 24, the instruction which the court gave the jury, and it was that the intended murder be committed in exchange for money, and fourth, that the death of Trince Thibodeau resulted, I take that to mean resulted from the use of interstate commerce.

[00:23:44] Speaker 02:
Now my question to you is, what evidence was there that Rhodes,

[00:23:52] Speaker 02:
actions resulted in the death other than the fact that he was a trigger man.

[00:24:01] Speaker 00:
Well, Your Honor, I agree.

[00:24:03] Speaker 02:
You see the word resulted there?

[00:24:05] Speaker 00:
Yes, Your Honor.

[00:24:06] Speaker 00:
So that final element is a sentencing aggravator element.

[00:24:09] Speaker 00:
That final element is not required by the statute itself to violate the murder for hire offense.

[00:24:14] Speaker 00:
The death of Trent Thibodeau resulted is what triggers the mandatory life sentence.

[00:24:20] Speaker 00:
So that element isn't indeed required, but it's for a sentence aggravation here.

[00:24:25] Speaker 02:
Okay, I got you.

[00:24:26] Speaker 04:
So the conversations that they had in person, that's not interstate commerce, right?

[00:24:33] Speaker 04:
That's not wire or mail.

[00:24:36] Speaker 00:
No, it is not, Your Honor, but it is.

[00:24:38] Speaker 04:
That you're using to prove that he committed the murder.

[00:24:42] Speaker 00:
It's an inference.

[00:24:44] Speaker 00:
Yes, Your Honor.

[00:24:45] Speaker 00:
So the inference.

[00:24:46] Speaker 04:
That wasn't over.

[00:24:47] Speaker 04:
Why isn't this a state murder?

[00:24:50] Speaker 00:
Your Honor, again, this is a federal murder because of the use of interstate wires here.

[00:24:56] Speaker 00:
So the inference that the jury would have to make if Rhodes were, let's say, not the hitman here and just the alternate theory that Rhodes perhaps arranged it is the fact that he had these conversations both in person and there's proof that he was texting and calling Mario Robinson throughout the day and increasingly up to the time of the murder.

[00:25:17] Speaker 00:
And so the inference the jury would have to make, and I think this is a very reasonable inference here, is that these phone calls were indeed about planning this murder.

[00:25:26] Speaker 00:
They relocated in order to make this murder happen.

[00:25:29] Speaker 00:
And there were conversations both in person and over text that were occurring that Marshall observed during that time.

[00:25:37] Speaker 03:
Is that, let me ask you this, is that inference sufficient?

[00:25:40] Speaker 00:
Your Honor, I think the, so under an evidentiary sufficiency,

[00:25:46] Speaker 00:
standard, absolutely, reviewing, if it's evidentiary sufficiency, reviewing it in the light most favorable.

[00:25:52] Speaker 00:
We are looking at this, though, in terms of instructional error, and when it comes to instructional error, we're seeing whether it's clear beyond reasonable doubt that the jury would have convicted without the, absent the error, essentially.

[00:26:05] Speaker 00:
So essentially, if the question is,

[00:26:08] Speaker 00:
If the challenge language here, if the district court said nothing about timing, and we just took out that last sentence about the interstate activity does not have to precede the murder, would that have made any difference?

[00:26:21] Speaker 00:
And I think based off the evidence here, it would not, because of the evidence that the government presented of all the pre-murder wires that were crossing interstate lines.

[00:26:32] Speaker 03:
Let me ask you this.

[00:26:33] Speaker 03:
On the question that Judge Bea asked you about

[00:26:36] Speaker 03:
Judge Alsop's answer to the question.

[00:26:39] Speaker 03:
So his answer to the question when he said, he wrote back, no.

[00:26:42] Speaker 03:
Oh, no, he brought the jury back into the courtroom and then he answered that, no, you don't have to be the trigger man.

[00:26:49] Speaker 03:
So that's an instruction or a revision to the instruction.

[00:26:55] Speaker 03:
We review that modification for harmless air, correct?

[00:27:02] Speaker 00:
Yes, Your Honor.

[00:27:02] Speaker 00:
Well, first, I think you first review it for an abuse of discretion, I think, as far as giving the instruction and how the instruction is phrased.

[00:27:10] Speaker 00:
And then you look for harmlessness.

[00:27:12] Speaker 00:
Yeah.

[00:27:12] Speaker 00:
Yes, Your Honor.

[00:27:13] Speaker 03:
Let's just assume it was error.

[00:27:14] Speaker 00:
His answer was erroneous.

[00:27:16] Speaker 00:
Yes, Your Honor.

[00:27:17] Speaker 00:
I don't actually think it goes to the elements here.

[00:27:20] Speaker 00:
I think this particular instruction didn't modify.

[00:27:22] Speaker 00:
It clarified the actual instructions that were given.

[00:27:26] Speaker 00:
I think when you look at the elements, and the elements required that interstate activity and the requisite

[00:27:32] Speaker 00:
criminal intent.

[00:27:33] Speaker 00:
And it encompasses different roles within this Murder for Hire scheme.

[00:27:38] Speaker 00:
And so I think that wasn't clear to the jury, possibly because of the evidence that was presented.

[00:27:42] Speaker 00:
The theories that were presented by both the government and the defense here that was argued was that the government said that Rhodes is the shooter in this case.

[00:27:52] Speaker 00:
The defense, its main argument was that Rhodes was not involved at all and attacked the lack of DNA on the shell casings and attacked

[00:28:02] Speaker 00:
different aspects of Marshall's testimony and said he just wasn't even involved at all.

[00:28:09] Speaker 03:
I can't remember, but did they try to suggest that somebody else was the hitman?

[00:28:17] Speaker 00:
The defense did, yes, your honor.

[00:28:19] Speaker 03:
In the closing argument?

[00:28:20] Speaker 03:
Yes, your honor.

[00:28:20] Speaker 00:
So a lot of this was kind of, I think, invited.

[00:28:22] Speaker 00:
The defense said, look, obviously there's a murder.

[00:28:24] Speaker 00:
Obviously, I mean, we have pictures of someone who

[00:28:27] Speaker 00:
clearly died in public, and we see the video of it happening.

[00:28:31] Speaker 00:
We clearly see there was at least three people there.

[00:28:33] Speaker 00:
We see Marshall and Robinson running away from the scene, and a shooter shooting into Thibodeau in a video.

[00:28:42] Speaker 00:
And so the defense theory that it continued to argue was Rhodes', he said, the poor patsy that Marshall decided to blame a year and a half.

[00:28:50] Speaker 00:
That was the defense theory that they put forth there.

[00:28:52] Speaker 00:
And so understandably, the jury was caught over this issue of, well,

[00:28:56] Speaker 00:
what happens if he's a shooter or not, because we have all this other evidence.

[00:29:01] Speaker 00:
And I think it was, again, they asked this question, and it was very fair for the district court to carefully answer it and said, under the law, the answer is no, that anyone who's involved in this Murder for Hire scheme, as long as those four elements I instructed you are met.

[00:29:18] Speaker 00:
And again, reiterated again and again, now this has nothing to do with what was presented here.

[00:29:23] Speaker 00:
It's up to you, jury, to decide

[00:29:26] Speaker 00:
whether the evidence has been met.

[00:29:27] Speaker 00:
It's the government's burden to prove that, but I'm just answering this as a matter of law.

[00:29:31] Speaker 00:
I think that was appropriate here.

[00:29:32] Speaker 02:
But when he says it has nothing to do with what was presented there, he's implying that there's evidence to show that Rhodes was, quote, involved, unquote.

[00:29:42] Speaker 02:
Otherwise he wouldn't be legitimate in giving the instruction.

[00:29:49] Speaker 00:
I probably paraphrased it not very accurately, but I think his exact language was, under the law, all persons involved in a murder-for-hire scheme are guilty, so long as all of those elements, the four elements, are proven beyond a reasonable doubt.

[00:30:02] Speaker 00:
And then he says, it's up to you to decide on the evidence before you whether or not those elements have been proven beyond a reasonable doubt.

[00:30:09] Speaker 00:
But at least this clarifies for you what the law is.

[00:30:13] Speaker 00:
And so again, I think the way, again, we're looking at an abusive discretion standard, and we're looking

[00:30:19] Speaker 00:
judge who very carefully couched his instruction as just an answer to what he viewed as a legal question, and it was.

[00:30:25] Speaker 00:
And again, it did refer the jury back to his instruction in the first place, which was legally correct as far as the elements that the government had to prove.

[00:30:33] Speaker 00:
And so to the extent that there was jury confusion, he again also reminded the jury that it's up to you to decide whether or not the evidence here actually meets the elements.

[00:30:42] Speaker 00:
And I think with regard to that supplemental

[00:30:46] Speaker 00:
I think the cases we have on such as Gaskins and Fontenot are instructive as far as the harmlessness here.

[00:30:54] Speaker 00:
One, I think the district court, unlike the court in Gaskins, did not introduce any new theory that lowered the government's burden.

[00:31:01] Speaker 00:
It did not introduce any new elements.

[00:31:03] Speaker 00:
The elements remain the same.

[00:31:04] Speaker 00:
And indeed, the district court reminded the jury of that, that you need to go back to the elements that I read you and that the burden is on the government.

[00:31:11] Speaker 00:
I think also when you look at, when it comes to supplemental instruction and where the unfairness might result is if it essentially, I think, takes away from defense its opportunity to argue against or defend against essentially a new theory.

[00:31:26] Speaker 00:
That didn't happen here.

[00:31:27] Speaker 00:
Defense counsel argued vigorously in its closing

[00:31:30] Speaker 00:
And it's the theory, the main theory that it proposed was that Rhodes was not involved at all.

[00:31:36] Speaker 00:
The government did not have a case at all that implicated Rhodes in any way.

[00:31:39] Speaker 00:
And that essentially, Rhodes was not there that day.

[00:31:43] Speaker 00:
And it was someone else who was the hitman.

[00:31:46] Speaker 03:
Okay, let's see if my colleagues have any further questions.

[00:31:51] Speaker 03:
No.

[00:31:51] Speaker 03:
Okay.

[00:31:51] Speaker 00:
Thank you, if there are no further questions.

[00:31:52] Speaker 03:
Thank you, counsel.

[00:31:53] Speaker 03:
We appreciate your arguments this morning.

[00:32:00] Speaker 03:
You can put three minutes on there.

[00:32:06] Speaker 01:
So we'll start with the last argument first.

[00:32:08] Speaker 01:
At ER 1047, right before the section that Judge Meier was referring to, the conclusion of the government's argument was, and because the evidence has shown that it was the defendant who killed Trent Stibideaux in exchange for money, I'm asking you to deliver the only verdict.

[00:32:29] Speaker 01:
that is supported by the evidence in this case, and that's the verdict that the defendant's guilty.

[00:32:34] Speaker 01:
So I mean, just in terms of the analysis of whether what Judge Alsop did in answering that question, he definitely was going beyond what the theory of the case had been throughout the rest of the time.

[00:32:46] Speaker 01:
And, you know, I mean, I've argued that that is improper, and it puts the thumb on the scale.

[00:32:53] Speaker 03:
As counsel just argued, though, didn't the defense, in their closing argument, stand up and say, you know, it wasn't Rhodes who did this?

[00:33:04] Speaker 03:
Yes, and so... He pointed his finger at somebody else.

[00:33:08] Speaker 03:
Didn't he suggest that Marshall did it?

[00:33:11] Speaker 01:
No, he suggested that Marshall implicated Rhodes

[00:33:15] Speaker 01:
because he wanted to find someone who seemed reasonable but wasn't the actual shooter.

[00:33:21] Speaker 01:
So I think that that was more the analysis of like he had to name someone.

[00:33:25] Speaker 01:
And there was actually some debate about whether that was a proper argument or an improper argument.

[00:33:29] Speaker 01:
But the idea was he had to name someone.

[00:33:30] Speaker 01:
And so he named this guy who he'd met while he was smoking dope with him in the neighborhood and figured he was a good.

[00:33:37] Speaker 01:
So that was the defense argument.

[00:33:39] Speaker 01:
Quickly, as to the first case.

[00:33:45] Speaker 01:
Let me find Delpit.

[00:33:46] Speaker 01:
Here we go.

[00:33:49] Speaker 01:
So in Delpit, which is discussed I think in both of our briefs, there is very clear language that if you've got someone who comes in after the fact,

[00:34:04] Speaker 01:
Like even if they're involved, like there were two, I think two of the co-defendants like got involved when everybody had flown in and they're going to do the murder and they're like showing the people like where the guys are hanging out, where the murder can take place.

[00:34:19] Speaker 01:
The court in the 8th Circuit in Delpit basically said that's not good enough because it happened after the conversation that caused the travel.

[00:34:28] Speaker 01:
And so it does not matter that they got paid for doing that later.

[00:34:31] Speaker 01:
It doesn't matter that they were okay that there was going to be a murder.

[00:34:34] Speaker 01:
What matters is the first piece, which is the call or whatever the interstate facility is that happens concurrent with or after this intent to commit the murder.

[00:34:49] Speaker 01:
So I think this court's ruling in Mr. Rhodes' favor is not much of a stretch based on this court's three prior published decisions, Ritter, Driggers, and Temkin.

[00:35:02] Speaker 01:
And I think that the judge adding that language just confused everything horribly, and the evidence is just not sufficient.

[00:35:10] Speaker 01:
And even if it is sufficient, it was definitely not harmless.

[00:35:14] Speaker 01:
Thank you.

[00:35:17] Speaker 03:
Thank you, counsel.

[00:35:19] Speaker 03:
We appreciate your arguments this morning.

[00:35:22] Speaker 03:
And with that, we will submit the case and end our session, not only for today, but for the week.

[00:35:34] Speaker 03:
Thank you very much.

[00:35:36] Speaker 01:
All rise.

[00:35:39] Speaker 01:
This court for the session stands adjourned.