[00:00:10] Speaker 04: Good morning, Your Honor, as may it please the Court. [00:00:12] Speaker 04: Ryan stood on behalf of Mr. Smith, the petitioner. [00:00:14] Speaker 04: I'd like to reserve two minutes, if possible, for rebuttal. [00:00:18] Speaker 04: The Court should reverse Mr. Smith's two-year revocation sentence because the process that he received before the District Court at the hearing was fundamentally unfair. [00:00:29] Speaker 04: The government introduced prior recorded statements of the only eyewitness to identify Mr. Smith as the assailant, and then it withheld [00:00:39] Speaker 04: an additional prior recorded statement of its key witness that was both impeaching and exculpatory. [00:00:45] Speaker 04: That presents two problems with respect to the revocation, both merit reversal. [00:00:51] Speaker 04: The first is that it's a violation of Mr. Smith's rights under Brady v. Maryland. [00:00:56] Speaker 04: And the second is that it violated Mr. Smith's rights under federal rule of criminal procedure 26.2. [00:01:01] Speaker 04: Turning to the first issue, Brady v. Maryland, [00:01:05] Speaker 04: What the government did in this case that's so unfair is that it used prior recorded statements of Ms. [00:01:13] Speaker 04: Duncan, where she told the police clearly and specifically that Mr. Smith had hit her and that she had not called 911. [00:01:22] Speaker 04: It used those prior recorded statements and argued to the district court that those statements should be credited. [00:01:28] Speaker 04: For Ms. [00:01:28] Speaker 00: Duncan's part, she tested- Prior recorded statement is Officer Trong's body cam. [00:01:34] Speaker 04: There were four officers, your honor, in two separate domestic violence incidents. [00:01:38] Speaker 04: But yes, the prior recorded statements that were admitted to the district court were all body cam footage. [00:01:44] Speaker 00: And what they what you call the prior recorded statement that they didn't get is the actual 911 call. [00:01:52] Speaker 04: Correct. [00:01:53] Speaker 00: And our information on that is from Officer Trong's laptop, which is a direct recording of the [00:02:04] Speaker 00: 9-1-1 operators notes. [00:02:07] Speaker 00: Am I clear about it? [00:02:08] Speaker 00: Am I correct on all of that? [00:02:09] Speaker 04: I think the court is largely correct. [00:02:11] Speaker 04: Just to be precise, Officer Truong testified that he received information related to Ms. [00:02:17] Speaker 04: Duncan's 9-1-1 call on his laptop. [00:02:19] Speaker 04: He was clear that Ms. [00:02:20] Speaker 04: Duncan was the caller and he [00:02:23] Speaker 04: recited essentially a summary of the call where Miss Duncan reported that she was possibly hit. [00:02:30] Speaker 04: The record is unclear about whether Officer Truong received an entire transcript, for example, or exactly what he received. [00:02:36] Speaker 03: His testimony wasn't reading off of something. [00:02:38] Speaker 03: He was testifying basically as to what he recalled seeing. [00:02:43] Speaker 04: Yes. [00:02:45] Speaker 04: That's correct. [00:02:46] Speaker 04: But his recollection was clear on the fact that Miss Duncan made the call. [00:02:52] Speaker 04: I followed up, for example, on cross-examination and pressed him to ensure that he was clear on that, and he responded that he was. [00:02:59] Speaker 00: You're not saying that that was inadmissible evidence, are you? [00:03:04] Speaker 00: What was inadmissible? [00:03:05] Speaker 00: From Officer Tuan. [00:03:07] Speaker 04: No, Your Honor. [00:03:07] Speaker 00: I'm saying... So what you want is presumably, what, a cassette of the 911 call itself? [00:03:15] Speaker 00: or the physical paper notes or type notes of the operator? [00:03:22] Speaker 00: Exactly what is it that you're saying that you didn't get? [00:03:26] Speaker 04: It would be the recorded 911 call. [00:03:28] Speaker 04: The recorded 911 call based on Officer Trelong's testimony is both exculpatory and impeaching of Ms. [00:03:34] Speaker 04: Duncan's testimony. [00:03:36] Speaker 02: Again, what- And the difference, what you think is exculpatory is that it's possibly hit instead of definitely hit, right? [00:03:43] Speaker 02: That's the exculpatory [00:03:45] Speaker 02: Aspect Yes, it wasn't and how is there any question that she was hit wasn't she injured? [00:03:55] Speaker 04: She testified that she or she told the police on both incidents on November 7th and November 9th that she was hit and injured the Photos for example that the government's introduced in its supplemental excerpt a record before this court [00:04:10] Speaker 04: relate largely to the November 9th domestic violence incident, where you can clearly see that her face is bloody. [00:04:18] Speaker 04: There's the blood smeared on the door, on the bedspread as well. [00:04:22] Speaker 04: There's clearly been an act of violence. [00:04:25] Speaker 04: The November 7th incident, it's less so. [00:04:28] Speaker 04: I mean, the pictures are not nearly as clear. [00:04:31] Speaker 04: And so, yes, it would be impeaching if Ms. [00:04:34] Speaker 04: Smith is saying, excuse me, if Ms. [00:04:36] Speaker 04: Duncan is saying, clearly to the police, I've been hit. [00:04:40] Speaker 04: and my assailant is Mr. Smith, if she's saying that she's possibly been hit, I think that that changes the circumstances substantially and it is exculpatory. [00:04:50] Speaker 02: I guess I'm just confused because the call did say it's the father of my children, which would have to be him. [00:04:55] Speaker 02: And so if the only issue is possibly hit versus actually hit, but they can see injuries, it just doesn't seem like it makes that much difference or any difference. [00:05:04] Speaker 04: Your honor, I would turn the court to the excerpts of record with respect to the actual testimony. [00:05:09] Speaker 04: I don't believe that Officer Truong testified about who Miss Smith or Miss Duncan said hit her on the call. [00:05:17] Speaker 04: The presumption, I suppose from the government's perspective, is that she identifies the father of her child. [00:05:23] Speaker 04: That's what Officer Truong testified. [00:05:25] Speaker 04: But I don't think that it's entirely clear from Officer Truong's testimony that she clearly identifies Mr. Smith as the assailant in the 911 call. [00:05:35] Speaker 00: There's no other possible father that's in the evidence anywhere, is there? [00:05:40] Speaker 00: No, Your Honor, not that's in the evidence. [00:05:41] Speaker 03: Can I ask you, I know your position is that the government had to provide this. [00:05:45] Speaker 03: Did you have any means or ability to seek the call yourself? [00:05:51] Speaker 03: Well, I wasn't aware. [00:05:52] Speaker 03: I know you think you didn't have to do that, but could you have? [00:05:54] Speaker 04: In theory, yes. [00:05:57] Speaker 04: I would say that the Supreme Court and this court in analyzing Brady and Rule 26.2, they don't place the burden on the defendant. [00:06:03] Speaker 04: The onus under Rule 26.2 is on the government who calls the witness. [00:06:08] Speaker 04: And similarly, it's the government's obligation to investigate, obtain, and produce Brady evidence. [00:06:13] Speaker 00: But those are all from non-supervised release violation context, are they not? [00:06:18] Speaker 00: That's correct. [00:06:19] Speaker 00: Because I guess the global thing that occurs to me is this is not [00:06:24] Speaker 00: a jury case before potentially flimflammable jurors. [00:06:29] Speaker 00: You've got a federal district judge who knows all about what your argument is, who can take that into account and can be more assertive if he thought it would make much difference, but I just see nothing here that would lead me to think that no matter what's on the tape, [00:06:50] Speaker 00: Is likely to to influence the judge that knows all this he can he can taken it into account in making his decision and of course this is only Relevant to one of the two incidents in a sense the less violent of the two isn't it Your honor there's a number of questions there I'd like to leave to respond at least in four parts to the court's question first with respect to whether this though I appreciate the questions first with respect to whether this is [00:07:18] Speaker 04: applies just in the context of Brady in a criminal trial, for example. [00:07:22] Speaker 04: Federal rule of criminal procedure through statute applies in this context. [00:07:27] Speaker 04: So that's not just in front of a trial. [00:07:29] Speaker 04: There's no question that essentially the Jenks Act applies in this context. [00:07:34] Speaker 04: Second, the district court didn't have the tape, and neither did Mr. Smith. [00:07:38] Speaker 04: So presuming that the district court, that this wouldn't have changed the district court's position is wholly speculative. [00:07:44] Speaker 04: We don't have the tape here today, and that's the point. [00:07:48] Speaker 04: In analyzing prejudice under Brady, I would point the court to Kyle's versus Whiteley at 514 US, page 434 and 435 in the decision. [00:08:00] Speaker 04: It goes through a lengthy analysis of what qualifies as prejudice under Brady. [00:08:05] Speaker 04: And it's favorable for Mr. Smith in this context. [00:08:08] Speaker 04: And I'll quote, the question is not whether the defendant would more likely than not have received a different verdict with the evidence. [00:08:15] Speaker 04: But whether in its absence, he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. [00:08:23] Speaker 04: Here, the government presented recorded statements of Ms. [00:08:26] Speaker 04: Duncan, argued to the district court that they were very clear and credible, and the district court agreed. [00:08:31] Speaker 04: By contrast, Ms. [00:08:32] Speaker 04: Duncan testified, I didn't make those statements, and they're not credible. [00:08:36] Speaker 04: That was her in-court sworn testimony. [00:08:39] Speaker 04: And the district court was in a position of crediting which was true. [00:08:43] Speaker 04: And in that context, [00:08:45] Speaker 04: to have suppressed or withheld an additional recorded statement that would have cast doubt on her very credible, in the government's view, prior recorded statements is wholly unfair, and Brady should apply in this context. [00:09:00] Speaker 03: Can I ask you on the rule 26, Cenk's issue? [00:09:04] Speaker 03: Yes. [00:09:05] Speaker 03: Did the United States have an obligation to produce a call that was being held by [00:09:10] Speaker 03: the San Diego Police Department or is that obligation limited to essentially federal entities? [00:09:16] Speaker 04: No, Your Honor. [00:09:16] Speaker 04: I would point to this court's decision in United States versus Price. [00:09:19] Speaker 04: It's controlling and compels production in this case. [00:09:22] Speaker 04: The facts in United States versus Price are that Mr. Price was arrested by a local police department in the Pacific Northwest after they found a gun in his car. [00:09:33] Speaker 04: Mr. Price was then prosecuted by the US Attorney's Office, a federal law enforcement organization, obviously. [00:09:40] Speaker 03: Is that a Rule 26 case or a Brady case? [00:09:42] Speaker 04: That's a Brady case. [00:09:44] Speaker 04: And it's also a case. [00:09:45] Speaker 03: Brady may be a little different, though, than Rule 26, no? [00:09:49] Speaker 04: Sure, but the question in Price was whether it was in the possession of the US Attorney's Office. [00:09:54] Speaker 04: And when analyzing whether the 911 call is in the possession of the US Attorney's Office, this court, under Price, looks at whether [00:10:03] Speaker 04: The state law enforcement agency was the lead investigating agency. [00:10:07] Speaker 04: And here, that's clearly the San Diego Police Department. [00:10:10] Speaker 04: Take a step back more broadly and look at the evidence that was presented in this case. [00:10:14] Speaker 04: The government called four San Diego police officers. [00:10:17] Speaker 04: It obtained their body camera footage. [00:10:19] Speaker 04: It obtained their police reports. [00:10:20] Speaker 04: After cross-examination of Officer McConnell at the first hearing, I made a Rule 26.2 objection because she had a recorded call with Ms. [00:10:29] Speaker 04: Duncan. [00:10:30] Speaker 04: The government complied. [00:10:31] Speaker 04: at the order of the district court and produced that additional recorded call. [00:10:35] Speaker 03: The district court later said, you know, maybe I shouldn't have ordered that, but that did happen. [00:10:39] Speaker 04: Sure, but look at it as a matter of fact and procedure in this case. [00:10:42] Speaker 04: The government's getting its witnesses from the San Diego Police Department. [00:10:45] Speaker 04: It's getting its evidence from the San Diego Police Department. [00:10:48] Speaker 04: The San Diego Police Department records are within its possession within. [00:10:52] Speaker 02: So am I understanding your argument about price is that even though it's a Brady case, the fact that it used the word possession now tells us something about what possession means. [00:11:01] Speaker 02: Is that what you're arguing? [00:11:03] Speaker 04: Well, I think that this court and Brian Santiago and Cano. [00:11:07] Speaker 04: are three decisions that talk about what's in possession of a federal law enforcement, excuse me, the U.S. [00:11:13] Speaker 04: Attorney's Office when a state or other non-related law enforcement agency is involved in the investigation. [00:11:19] Speaker 02: But if Brady is broader, I mean, so... [00:11:22] Speaker 02: If Brady is broader and the working together is enough in the Brady context, but it might not be in Rule 26, then I don't understand. [00:11:30] Speaker 02: I mean, perhaps you use the word possession in Brady if you mean possession or control or access or something, because all those words are the same within Brady, but they may not be the same within Rule 26. [00:11:42] Speaker 04: You know, I think that in this context, [00:11:47] Speaker 04: the government possessed and had access to records within the San Diego Police Department. [00:11:55] Speaker 04: And there's no argument that the government made after I raised a Rule 26.2 objection to the 911 call where the government said, this is not in our possession. [00:12:05] Speaker 04: We're unable to get this 911 call in a way that's materially distinct from the body camera footage and the police reports and the other recorded call that we produced. [00:12:15] Speaker 04: I just don't think that that record is before the court, which before the court factually is that all of the evidence was obtained from the San Diego Police Department and that the government failed to seek and obtain the 911 call because it didn't see a Brady obligation. [00:12:30] Speaker 03: They seem to maybe, I mean we can hear from the government on this, they seem to have some difficulty getting materials from them. [00:12:36] Speaker 03: Is that true? [00:12:39] Speaker 04: The government's certainly free to take that position on appeal. [00:12:42] Speaker 04: I don't think that the record supports that conclusion, though. [00:12:45] Speaker 04: Again, all of the evidence was obtained from the San Diego Police Department, all of the witnesses that the government presented except for the probation officer and Ms. [00:12:54] Speaker 04: Duncan were San Diego police officers. [00:12:56] Speaker 04: And the government did not argue to the district court that they were unable to obtain the 911 call. [00:13:03] Speaker 04: after I raised the Rule 26.2 objection, ruled on it directly without hearing from the government. [00:13:08] Speaker 04: So the government has not made a record before this court that the 911 call is somehow different from the body camera footage, the other recorded call, the reports, and the witnesses that it presented, all from the same law enforcement agency. [00:13:26] Speaker 00: EMT or call center? [00:13:29] Speaker 04: We don't. [00:13:30] Speaker 04: As a matter of fact, the government on appeal cited an NPR article before this court talking about call center is largely in Denver, Colorado. [00:13:37] Speaker 04: That is just simply not the type of reliable argument and evidence that this court should look to. [00:13:42] Speaker 04: In Brady, for example, under the second step analyzing if Brady applies, once a defendant has made a prima facie showing that evidence has been suppressed, the burden then shifts to the government to show that it hasn't or it didn't have access or something. [00:13:56] Speaker 04: you know, to respond. [00:13:59] Speaker 00: But even if I'm not saying you had an obligation, but you did not try to, you know, ask who has the tape, where is the tape? [00:14:08] Speaker 04: Thank you for asking that question again. [00:14:09] Speaker 04: No, I did not. [00:14:10] Speaker 04: And please let me briefly try to answer that question as well. [00:14:15] Speaker 04: The existence of the 911 tape was raised at the finality of the second day of this revocation proceeding. [00:14:22] Speaker 04: So I did not have, just as a practical matter, [00:14:25] Speaker 04: advanced notice of the 911 call. [00:14:28] Speaker 04: Had I had advanced notice of the 911 call, I suppose I could have tried to subpoena it. [00:14:32] Speaker 00: I did subpoena other... So the Truong only sort of appeared as a witness at the end of the second day? [00:14:38] Speaker 04: That's correct. [00:14:39] Speaker 04: He was the penultimate witness. [00:14:41] Speaker 04: Officer McConnell then testified briefly after Officer Truong, and then we transitioned directly into the legal objection under 26.2, Brady again. [00:14:50] Speaker 04: kind of closing arguments and sentencing all folded into one, you know, the conclusion of the hearing. [00:14:57] Speaker 04: I know that I'm over my time and I appreciate the indulgence with that. [00:15:03] Speaker 04: If I may briefly have a few minutes in rebuttal. [00:15:05] Speaker 03: You sure may. [00:15:05] Speaker 03: Let's put three minutes on the clock when you come back. [00:15:08] Speaker 03: Thank you for your presentation. [00:15:15] Speaker 01: I'm happy to address the applicability of the different evidentiary standards. [00:15:22] Speaker 01: I'm happy to address the possession issue. [00:15:26] Speaker 01: But I do think it's important to just start at the heart of the matter here, which is that taking Officer Trong's account as true, this evidence would have destroyed the defense. [00:15:40] Speaker 01: In this call, Officer Trong says that the victim identified the father of her children as the person involved in the incident. [00:15:51] Speaker 01: And as Duncan testified on the stand, Smith is the father of her children. [00:15:57] Speaker 01: And that was the only disputed element in this case. [00:16:01] Speaker 01: And the court has seen the videos, I'm sure. [00:16:05] Speaker 01: You can make this assessment for yourself. [00:16:07] Speaker 01: But in both assaults, she was beat to a pulp. [00:16:10] Speaker 01: There was no dispute that an assault occurred. [00:16:12] Speaker 01: And in fact, defense counsel at the hearing repeatedly conceded that an assault occurred. [00:16:19] Speaker 01: I'll give you just one quote at page 60 of the record. [00:16:21] Speaker 01: It says, the evidence shows an assault took place, but not necessarily that Mr. Smith was involved. [00:16:27] Speaker 01: Page 153 and 154, he makes similar comments. [00:16:30] Speaker 01: And everywhere in between, [00:16:32] Speaker 01: He is simply talking about what he deemed alternative theories of who committed the assault and he's talking about Michaela being a possible culprit. [00:16:41] Speaker 01: So that was the only disputed element and this evidence by his interpretation [00:16:47] Speaker 01: should be what Officer Trong said it was. [00:16:50] Speaker 01: Well, Officer Trong identified the caller as identifying Smith as the assailant. [00:16:55] Speaker 01: So this is not Brady evidence because it's not favorable. [00:16:58] Speaker 01: It's in fact highly damaging to the defense in this case. [00:17:02] Speaker 01: So I think based on that rationale alone, you can dispose of this case without reaching some of the more complicated issues. [00:17:09] Speaker 01: But let me try and delve into some of those as well. [00:17:12] Speaker 00: I mean, it is true, though, that we don't literally know [00:17:17] Speaker 00: what's on the call. [00:17:18] Speaker 00: We have Trong's two-step or one-step removed on that, at least it's in theory. [00:17:27] Speaker 00: Maybe she wasn't hysterical, maybe she sounded like a wronged woman who's trying to drop her man in on it. [00:17:36] Speaker 00: I mean, they don't really tell us what their theory of it is, but isn't that kind of the speculation that we're asked to think that might have turned around a [00:17:46] Speaker 00: U.S. [00:17:47] Speaker 00: District Judge. [00:17:48] Speaker 01: I think that's right, but I think you have one of two possibilities here. [00:17:51] Speaker 01: If you go with the victim's account, she says on the body-worn camera that she did not make the call, that a neighbor made the call, and then she repeatedly references a neighbor making the call. [00:18:02] Speaker 01: So if you accept that account, then this is not her statement at all. [00:18:06] Speaker 01: But then if you accept Officer Trong's account, which is the one that defense counsel was asking you to credit, [00:18:11] Speaker 01: That's the one where, according to him, she made the call and she identifies Smith as the assailant. [00:18:17] Speaker 01: Again, that's the only disputed issue. [00:18:19] Speaker 01: The only grist for the mill that he actually gets out of this is the possibly hit statement. [00:18:25] Speaker 01: But again, because that was an undisputedly proven element at trial and because he repeatedly conceded that the assault took place, I don't see what it does for him. [00:18:34] Speaker 01: So I think with all of the evidence you have, it's going to lead you to one of two conclusions, neither of which amounts to favorable evidence. [00:18:42] Speaker 01: Anything else would be pure speculation. [00:18:44] Speaker 01: I don't think that meets a requirement under Brady or even a lesser standard for a revocation hearing. [00:18:51] Speaker 01: But if I could address the other issue that's come up, it's this issue of the government actually possessing the 911 call. [00:18:59] Speaker 01: It's true, the government wasn't asked for its position on any of these issues, so there was no record laid in this respect. [00:19:06] Speaker 01: Now, I will concede that it is a low burden to show that the government possesses the information you want. [00:19:13] Speaker 01: But Price does say that the defendant has to offer some evidence to that effect. [00:19:19] Speaker 01: And here, there has been no evidence that the federal government or the federal prosecution had this, let alone that the local police department had it, because [00:19:31] Speaker 01: Look, I agree. [00:19:31] Speaker 01: There's no evidence on where this call was ultimately routed, but I don't think it takes more than common sense to say that when you call 911, they can't just send a police car. [00:19:40] Speaker 01: They can also send an ambulance or a fire truck or anything else. [00:19:44] Speaker 01: So these call centers don't just service a police station. [00:19:48] Speaker 03: So I think to... Does the United States' duty to gather information differ under Brady versus Rule 26? [00:19:57] Speaker 01: Yes. [00:19:59] Speaker 01: Brady, it would be anything favorable and material to the defense, whereas Rule 26, that's just an incorporation of the Jinx Act. [00:20:09] Speaker 01: And then there's also, under Rule 32.1, the requirement that we turn over evidence used against the defendant. [00:20:16] Speaker 01: So it would be witnesses' statements and evidence against the defendant. [00:20:21] Speaker 02: But what about the scope of possession, like the definition of what counts as possession? [00:20:26] Speaker 02: I thought that Brady, [00:20:29] Speaker 02: had a broader scope of getting information from cooperating agencies than Rule 26 potentially. [00:20:36] Speaker 02: You just answered with something substantive about the statement rather than the scope of possession. [00:20:42] Speaker 01: So I think that would go to the question of whether Brady applies in revocation proceedings. [00:20:48] Speaker 01: If it did apply in revocation proceedings, then I think you would probably adopt the same definition of possession that you use in the underlying trial proceedings. [00:20:57] Speaker 01: If Brady doesn't apply in revocation proceedings, then it may be that there is a more lax standard for possession. [00:21:03] Speaker 01: But here, I don't think you have to get into it. [00:21:04] Speaker 02: But what about Rule 26? [00:21:05] Speaker 02: I guess my question, I think what Judge Bess may have been asking, what I'm curious about is, does Rule 26 have [00:21:11] Speaker 02: as broad a scope in terms of what counts as where things might be that would be in the government's possession as Brady does. [00:21:20] Speaker 01: I see. [00:21:20] Speaker 02: Possession might not be the right word, but access. [00:21:23] Speaker 01: I see what you're saying. [00:21:24] Speaker 01: Yeah. [00:21:24] Speaker 01: So I don't know that the rule ultimately gives any indication on whether it's meant to be coterminous with the definition of possession under Brady. [00:21:33] Speaker 01: What I can say is this. [00:21:35] Speaker 01: Even if you were to apply the Brady standard, what Brady says is that you can impute in some instances the possession of the agency that you're calling as witnesses to the government. [00:21:48] Speaker 01: But here, you would have to go a step further than that to find possession because you're not just saying that, well, the government called a police officer, therefore we're going to impute possession of the police office to the federal government. [00:22:03] Speaker 01: You're going that extra step and saying, we're going to impute possession from the call center [00:22:09] Speaker 01: to the police station, to the federal government, to the federal prosecution. [00:22:13] Speaker 01: Again, this is a low burden to show that the government has the evidence you want, but you do have to offer some evidence. [00:22:19] Speaker 01: And when there has been zero questioning on this issue, when you have the officer on the stand to ask, hey, did you actually get the call, then I don't think it can be said that the defendant has met his burden to show that possession actually adhered. [00:22:32] Speaker 03: Can I ask you a little broader question, which may not be implicated here, but what is the policy of your office [00:22:38] Speaker 03: with respect to Brady material in these revocation proceedings, because we see the argument made that, you know, Brady doesn't apply here. [00:22:46] Speaker 03: There's lots of case law that talks about the rights of defendants being much lower in the revocation context. [00:22:52] Speaker 03: On the other hand, you know, if the government's in possession of some highly exculpatory evidence, you might hope that it would be provided. [00:22:59] Speaker 03: And what are the limits and what are the rules that govern here? [00:23:02] Speaker 01: Sure. [00:23:04] Speaker 01: I may be missing something. [00:23:06] Speaker 01: I tried to look at the justice manual and I cited in a footnote here. [00:23:10] Speaker 01: For actual underlying trial proceedings, we go beyond Brady disclosures. [00:23:14] Speaker 01: For revocation proceedings, I'm not aware that we have rules governing it. [00:23:19] Speaker 01: Again, I could be wrong here, but what I will say is that prudentially, certainly, would be my practice to turn over any Brady material, and I think it would be our office's practice. [00:23:28] Speaker 01: And I think that's the reason why this question has only ever been teed up in this sort of [00:23:32] Speaker 01: Academic setting where at least to my lights this evidence is actually highly damaging to the defense So prudentially speaking I think our general practice would be to turn any Brady material over Do you think the obligation should differ in the revocation? [00:23:49] Speaker 03: Context should it be the same as the trial context should it be lower? [00:23:53] Speaker 01: What what's the answer it should absolutely be different? [00:23:57] Speaker 01: both because of the nature of Brady and because of the nature of the revocation proceeding I [00:24:02] Speaker 01: On the Brady side, Brady expressly says that the purpose of the due process right it is recognizing is avoidance of an unfair trial. [00:24:10] Speaker 01: And this court has said time and again that a revocation [00:24:13] Speaker 01: is not part of the underlying criminal proceedings. [00:24:16] Speaker 01: And that's why this court has held that things like proof beyond a reasonable doubt or Miranda or the confrontation clause or collateral estoppel or the exclusionary rule don't apply to revocations. [00:24:29] Speaker 01: And in the Morrissey case from the Supreme Court, it expressly addresses the due process rights that are due to defendants in [00:24:36] Speaker 01: irrevocation context, and it addresses disclosure rights. [00:24:40] Speaker 01: And it says you are entitled to disclosure of evidence against you. [00:24:44] Speaker 01: And then this court in Tham and Donahue reinforced that conclusion. [00:24:49] Speaker 01: But that's an interpretation of the due process clause. [00:24:52] Speaker 01: Brady is an interpretation of the due process clause. [00:24:54] Speaker 01: So you have authority on points saying due process does not dictate disclosures that are as wide as Brady disclosures. [00:25:02] Speaker 01: in the revocation context. [00:25:04] Speaker 01: So again, I don't know that you have to address that case here because this just isn't Brady material. [00:25:09] Speaker 01: But if you do get to it, then I think you should conclude that Brady is not the government's standard. [00:25:15] Speaker 01: Is there any law on this question? [00:25:17] Speaker 01: Has anybody addressed this? [00:25:19] Speaker 01: To my knowledge, there is, and we cite these cases in our brief, there is dicta from one, I believe it's a Fifth Circuit case, suggesting that Brady may not apply, doesn't address it firmly. [00:25:29] Speaker 01: And I believe there's one unpublished decision that in a footnote concludes that Brady does not apply. [00:25:36] Speaker 01: I think that may be a Sixth Circuit decision. [00:25:38] Speaker 01: Then you have about a dozen district court cases that have said Brady does not apply to revocation proceedings. [00:25:45] Speaker 01: But in terms of an actual binding circuit court holding, I'm not aware of any case that has reached that issue. [00:25:51] Speaker 03: Mr. Stitt says, well, you know, maybe the rule should be different when the reason for the revocation is a wholly different crime. [00:25:58] Speaker 03: Do you have a view on that? [00:26:00] Speaker 01: This court has expressly addressed new allegations of crimes and how that affects the revocation proceedings. [00:26:08] Speaker 01: I'll point you to the Oliver case, and there it said that a proof beyond a reasonable doubt standard did not apply even though it was an allegation for a new crime. [00:26:19] Speaker 01: Its exact quote is, that is true even when the violative act is a criminal offense. [00:26:25] Speaker 03: And that's fair I mean I guess the question is would that matter in deciding how Brady possibly or a Brady like principle could map on to the revocation proceeding. [00:26:36] Speaker 01: I think it would absolutely matter if new charges were brought for that new criminal act in those proceedings but in the revocation context no I don't think it matters because it doesn't change the fact that [00:26:46] Speaker 01: A revocation, whatever the grounds, is just regarded as a portion of the penalty that has already been imposed at trial with the full array of constitutional rights. [00:26:58] Speaker 01: So I think I may already be over my time. [00:27:00] Speaker 01: I'm happy to answer other questions. [00:27:01] Speaker 02: Can I ask one other question? [00:27:02] Speaker 02: So I know you have lots of alternative arguments for why we should rule for you. [00:27:07] Speaker 02: But if hypothetically we ruled against you, would it be possible to get this tape? [00:27:14] Speaker 01: I don't know. [00:27:14] Speaker 01: You know, I asked the trial attorney about this a few days ago, and he said this whole issue, he wasn't aware of it until it came up in cross-examination. [00:27:24] Speaker 01: And I think it was ultimately really teed up in recross. [00:27:29] Speaker 01: This wasn't an issue that had been explored by our office. [00:27:32] Speaker 01: So quite possibly the answer is yes. [00:27:34] Speaker 01: I just don't know. [00:27:37] Speaker 00: Because this actual call by this time, how long ago is it? [00:27:41] Speaker 00: A year? [00:27:41] Speaker 00: Two years? [00:27:43] Speaker 00: Right, and I just don't know the policy of overriding calls or getting rid of them. [00:27:48] Speaker 01: I just don't know Okay, mr. Howe. [00:27:51] Speaker 04: Thank you. [00:27:52] Speaker 04: Thank you I'd like to pick up where mr. Howe just left off. [00:27:59] Speaker 04: I think the correct way for the court to approach Your honor's question is to reverse and remand for a hearing for the district court there the government can [00:28:09] Speaker 04: make a fact-driven presentation about whether the tape exists, what it can get, and whether we can still get it. [00:28:18] Speaker 04: You know, Mr. Howe, I think, concedes that his office's policy and his practice as a matter of prudence would be to produce Brady evidence. [00:28:28] Speaker 04: That hurts the government's position in the interest balancing analysis to decide whether to extend Brady to this context. [00:28:35] Speaker 04: The government is telling the court here [00:28:37] Speaker 04: that it largely already tries to comply. [00:28:40] Speaker 04: The government is not saying that extension of Brady into this limited sphere would be unduly burdensome, impractical, or difficult to do. [00:28:51] Speaker 04: Brady's a due process right. [00:28:52] Speaker 04: Morrissey tells us that the minimum standards for due process apply in supervised release proceedings. [00:28:58] Speaker 04: Gagnon subsequently extends counsel to supervised release revocation proceedings in an effort to allow defendants to present a defense [00:29:07] Speaker 04: cross-examine witnesses, extending Brady another due process right to this limited context furthers those truth-seeking goals. [00:29:16] Speaker 04: It furthers the reliability and veracity of the evidence presented so that district courts can make the best choices possible when revoking supervised release. [00:29:25] Speaker 04: Mr. Smith is serving a two-year jail sentence for this. [00:29:28] Speaker 04: This is not a trivial kind of violation of his liberty. [00:29:32] Speaker 04: This is a really lengthy prison sentence [00:29:35] Speaker 04: He never had a Brady right attached to these claims. [00:29:39] Speaker 04: The government has never produced Brady with respect to the domestic violence allegations in the state or in the federal courts. [00:29:50] Speaker 04: And this court should order the government to comply with Brady. [00:29:53] Speaker 04: Moving forward, supervised release proceedings like this would be more fair. [00:29:58] Speaker 04: And Mr. Smith or similar defendants and revocation proceedings [00:30:02] Speaker 04: would have a more fair opportunity to confront the allegations. [00:30:05] Speaker 04: It would assist district courts in making revocation findings based on more complete and fulsome evidence. [00:30:12] Speaker 04: And it's just, just as a plain matter of fairness and due process, it should apply here. [00:30:19] Speaker 04: And so for all of those reasons, the court needs to reverse and remand. [00:30:25] Speaker 04: One additional point that I'd like to finally make is that we've talked about [00:30:30] Speaker 04: the exculpatory nature of the 911 call related to Miss Duncan's statement that she was possibly hit. [00:30:37] Speaker 04: But it's also impeaching because she repeatedly said, as Mr. Howe recognized in his argument, she repeatedly said to the police that the neighbor called 911. [00:30:48] Speaker 04: And Officer Truong says that that's not true, that she did. [00:30:51] Speaker 04: That is a core point of impeachment, and it would have allowed Mr. Smith to impeach [00:30:56] Speaker 04: Her can and I'm sorry she repeatedly said this at what stage to officer Trong or later She repeatedly said this on the body camera footage and it She repeatedly says for example on government's exhibit 20 [00:31:20] Speaker 04: that she had not called 911 and that it in fact was the neighbor who had called 911. [00:31:26] Speaker 00: Exhibit 20 is what? [00:31:27] Speaker 00: Is that Trong's body cam? [00:31:29] Speaker 04: I'm not sure whose body camera footage it is from the incident. [00:31:32] Speaker 04: Exhibit 1 and 20 are the two body cam footages that we cite significantly in the briefs. [00:31:38] Speaker 04: But what's important is the time she's making the statement. [00:31:41] Speaker 04: She's making the statement when she's reporting to the police who hit her. [00:31:45] Speaker 04: And that's Mr. Smith in her statement. [00:31:47] Speaker 04: Her statement at that time is clear. [00:31:49] Speaker 04: and direct. [00:31:51] Speaker 04: And she also says repeatedly that the neighbor called 911. [00:31:55] Speaker 04: And what Mr. Smith at his revocation hearing was wholly unable to do was to impeach her prior recorded statement. [00:32:05] Speaker 04: You know, she testified in court that it didn't happen, but Mr. Smith was unable to impeach her prior recorded statement to the police. [00:32:12] Speaker 04: And that's what this 911 call would have allowed him to do. [00:32:15] Speaker 04: And that's why it's so important. [00:32:17] Speaker 00: Because you think the 911 call [00:32:20] Speaker 00: Is the neighbor's voice? [00:32:23] Speaker 04: No, because I think that Officer Truong was telling the truth. [00:32:27] Speaker 04: As he said, Miss Duncan called 911. [00:32:30] Speaker 04: Miss Duncan lied to the police repeatedly. [00:32:34] Speaker 04: When she's reporting who hit her, she lies to the police in the same interaction about who calls 911. [00:32:41] Speaker 04: That is classic impeachment evidence that would have impeached her contemporaneity. [00:32:46] Speaker 03: Didn't she later say she lied to the police? [00:32:48] Speaker 03: She says that on the stand. [00:32:50] Speaker 04: She says she lied to the police about who hit her. [00:32:53] Speaker 04: And the district court and the government argue that this type of subsequent recantation is common in domestic violence cases, which it largely is. [00:33:02] Speaker 04: That was a subsequent statement that's vulnerable to being discredited as the district court did because of her feelings for Mr. Smith. [00:33:10] Speaker 04: By contrast, her contemporaneous statements to the police when reporting what happened are of a different kind. [00:33:17] Speaker 04: And those statements are what the government argued to the district court were very clear and reliable. [00:33:23] Speaker 04: And that's what the district court credited. [00:33:25] Speaker 04: that's what the 911 call would have impeached. [00:33:27] Speaker 04: And so that's why, in this context, it's so unfair that the government produced selectively the prior recorded statements, but then omitted or suppressed the 911 call that would have impeached those prior statements. [00:33:42] Speaker 03: Okay. [00:33:43] Speaker 03: Well, thank you very much, Mr. Stitt. [00:33:45] Speaker 03: Thank you, Mr. Howe. [00:33:45] Speaker 03: We appreciate the arguments this morning, and this matter is submitted. [00:33:49] Speaker 03: That concludes our calendar for the week. [00:33:51] Speaker 03: The panel would like to thank Ms. [00:33:52] Speaker 03: Rhodes, our courtroom deputy, and the staff of the chamber's courthouse for their excellent work this week, and we are adjourned. [00:34:00] Speaker 03: All rise. [00:34:00] Speaker 03: This court for this session stands adjourned.