[00:00:01] Speaker 03: session. [00:00:03] Speaker 03: Please be seated. [00:00:12] Speaker 03: Good morning, everyone. [00:00:13] Speaker 03: We will take the cases up in the order in which they appear on the docket. [00:00:19] Speaker 03: The first five cases this morning have previously been submitted on the brief, so we will proceed directly to United States versus Carter. [00:00:45] Speaker 03: You may proceed. [00:00:46] Speaker 01: Thank you, Your Honor. [00:00:48] Speaker 01: May it please the court. [00:00:49] Speaker 01: James Flynn on behalf of Funtria Carter. [00:00:53] Speaker 01: Ms. [00:00:53] Speaker 01: Carter's trial was infected by two errors that separately and together compounded to diminish her ability to present her defense of duress. [00:01:03] Speaker 01: The first error was a jury instruction on that self-defense, or excuse me, on that duress defense. [00:01:09] Speaker 01: And it told the jury to consider Ms. [00:01:11] Speaker 01: Carter's duress defense from the perspective of a person of reasonable firmness in Ms. [00:01:17] Speaker 01: Carter's situation. [00:01:19] Speaker 01: That got the law backwards because this court's Lopez decision requires the jury to be able to consider a person in circumstances that included what we all agree was Ms. [00:01:28] Speaker 01: Carter's infirmity, the experience of living with schizophrenia. [00:01:34] Speaker 01: Because the district court got that [00:01:35] Speaker 01: legal principle backwards, the jury instruction was erroneous. [00:01:39] Speaker 04: Was there an objection to the instruction? [00:01:42] Speaker 01: There was a set of competing instructions offered by the parties. [00:01:45] Speaker 01: The only difference was this single sentence that's at issue now. [00:01:50] Speaker 01: The district court received filings from the parties with those two different instructions. [00:01:56] Speaker 01: The parties identified at an initial charge conference, charge discussion, that there was a dispute as to the specific language. [00:02:02] Speaker 01: The district court adopted one of the two alternatives. [00:02:06] Speaker 01: issued it to the parties as a draft and the parties didn't make further argument on that. [00:02:11] Speaker 04: Wasn't there a comment that something along the lines that counsel accepted the instructions? [00:02:16] Speaker 01: There was a comment from defense trial counsel that defense counsel accepted the written instruction, the draft that the district court had circulated after the parties had lodged the instructions with the alternatives and raised the issue of a written, excuse me, a language dispute with the district court. [00:02:33] Speaker 04: So why should we not see that as a waiver? [00:02:36] Speaker 01: Your Honor, I think a better way to read that comment by defense counsel is that the parties had raised the legal issue with the district court. [00:02:43] Speaker 01: The district court had adopted one of the two alternatives. [00:02:46] Speaker 04: Well, the district court adopted sort of both, right? [00:02:48] Speaker 04: I mean, included the language of considering the defendant's particular circumstances and then also included the person of reasonable firmness language that seemed to be a hybrid of what both parties had requested. [00:03:00] Speaker 01: I see how your honor sees it that way. [00:03:02] Speaker 01: I would disagree. [00:03:03] Speaker 01: I think that there were two options. [00:03:05] Speaker 01: One omitted the sentence at issue and one included the sentence. [00:03:08] Speaker 01: But I think we're talking about the same thing ultimately. [00:03:11] Speaker 01: I read the comment about accepting the instruction from defense counsel as saying, we've raised this legal dispute. [00:03:18] Speaker 01: Your honor has resolved it. [00:03:20] Speaker 01: We accept that the instruction is written, meaning that we don't have a further comment on how the instruction is written, having said that. [00:03:27] Speaker 03: But wouldn't you preserve your objection at that point? [00:03:30] Speaker 03: You know, we're preserving the objection to this version. [00:03:35] Speaker 03: And just to make it clear, [00:03:40] Speaker 01: Your Honor, I think it wasn't necessary to do so because to preserve the objection, we're already talking about an objection that has been made and raised with the district court. [00:03:48] Speaker 01: So I think it might have been cleaner to repeat the objection, but as I think the question recognizes, it was already lodged and that was sufficient to preserve it even if it wasn't ideally clean. [00:03:58] Speaker 03: Well, why isn't, what is wrong with the way that the district court melded the two versions of the, [00:04:09] Speaker 01: Instruction sure your honor so at a district court Did one thing right which was to instruct the jury that they could consider the defendant's particular circumstances But then in part undid that correct Incorporation of the law by telling them to restrain that consideration to a person with reasonable firmness And I'd give a similar example which is sort of like instructing a jury to consider a person of reasonable eyesight [00:04:33] Speaker 01: where one of the circumstances facing that person is that they're blind. [00:04:36] Speaker 01: There's a fundamental incompatibility there. [00:04:38] Speaker 01: You're telling the jury that they can take into consideration some circumstances, but then you're saying in this narrow category of circumstances, you need to consider it from a person or reasonable from this, not a person. [00:04:49] Speaker 02: Council, perhaps I misremember the record here. [00:04:53] Speaker 02: You speak of Ms. [00:04:55] Speaker 02: Carter as having schizophrenia. [00:04:57] Speaker 02: I thought that was disputed. [00:04:59] Speaker 02: Did I miss something? [00:05:01] Speaker 01: Yes, Your Honor, there was a dispute among the party's experts about the schizophrenia diagnosis, and in particular about whether Ms. [00:05:07] Speaker 01: Carter was experiencing the symptoms of that schizophrenia at the time of the charged offense. [00:05:13] Speaker 02: So when you speak of the known disability, that's really not complete, is it? [00:05:21] Speaker 02: You got it out there, but it's not necessarily binding. [00:05:24] Speaker 02: Is that correct? [00:05:26] Speaker 01: Understood, Your Honor. [00:05:26] Speaker 01: I'm sorry if I misspoke in that regard. [00:05:28] Speaker 01: What I meant to say was that the parties agree that if the jury found that Miss Carter was experiencing schizophrenia, that there was that diagnosis, that that is a kind of infirmity. [00:05:38] Speaker 01: That's the language that the government uses. [00:05:40] Speaker 01: So I didn't mean to suggest that the government concedes the diagnosis or the symptoms. [00:05:45] Speaker 01: Thank you for clarifying that. [00:05:50] Speaker 01: Your Honor, I'll touch briefly on harmlessness. [00:05:52] Speaker 01: I did want to reserve three minutes. [00:05:54] Speaker 01: I've got a few minutes left here. [00:05:56] Speaker 01: The government doesn't address their burden of harmlessness, assuming there was an instructional error here, and they cannot show that the error was harmless beyond a reasonable doubt. [00:06:07] Speaker 01: There was substantial evidence about this schizophrenia. [00:06:10] Speaker 01: As Your Honor just noted, it was disputed, but heavily disputed, and challenges to the methods used by both parties' experts. [00:06:18] Speaker 01: And this is a classic kind of credibility issue that a jury should have been able to consider and then implement through jury instructions that allowed them to take into consideration the important factor that Lopez sets out. [00:06:30] Speaker 01: I point the court, excuse me, to Bear Child where this court explained that where there's a credibility issue and a misinstruction that leads the jury, misdirects the jury into what factors they can consider, that is a prejudicial error that requires a new trial. [00:06:46] Speaker 01: That's 947F3 at page 11 and 48. [00:06:51] Speaker 04: So before we would get to that analysis, we would have to conclude that the instruction was erroneous and it seemed that it tracked the Ninth Circuit model instruction and also the language of Lopez. [00:07:03] Speaker 04: So how did we find that it was an erroneous instruction? [00:07:07] Speaker 01: Yes, Your Honor. [00:07:07] Speaker 01: So I think Lopez guides us through that. [00:07:11] Speaker 01: And I acknowledge that the language was taken from the decision in Lopez. [00:07:15] Speaker 01: As this court has explained, language lifted from a court decision is sometimes a correct statement of the law, the snippet taken from a decision. [00:07:21] Speaker 01: But it is not always, and a jury can be misled by a small snippet of the case law. [00:07:25] Speaker 01: So what Lopez tells us is there's this concept called reasonable firmness that's language drawn from the model penal code. [00:07:31] Speaker 01: And the circuits are split about what can be considered in that reasonable firmness analysis. [00:07:36] Speaker 01: This circuit has said that experiences like battered women syndrome or here schizophrenia, which intersects with the abuse from Ms. [00:07:44] Speaker 01: Carter's abuser, [00:07:45] Speaker 01: Those experiences can inform a jury's assessment of how a person would perceive threats from their abuser, how they would respond, whether they would seek help or try to resist those threats. [00:07:55] Speaker 01: That's this court's interpretation of that language, reasonable firmness. [00:07:58] Speaker 01: But as this court has chronicled, other sister circuits have disagreed, have found that reasonable firmness bars consideration of those factors. [00:08:05] Speaker 01: So jury instructed to apply reasonable firmness standard in isolation, without all of this explanation from Lopez that I've been discussing, would be facing the same question that your honors faced when the circuits were arose, to determine what to consider and whether reasonable firmness allows them to consider Ms. [00:08:21] Speaker 01: Carter's schizophrenia and how that colors her perception of reality. [00:08:25] Speaker 01: This court has said they should be able to do that, but the district court here didn't give them that opportunity. [00:08:30] Speaker 01: And I think the only common-sensical understanding of the term reasonable firmness in a jury instruction, divorced from all of that legal analysis, is that a juror would think reasonably firm means doesn't have this mental disorder that I am supposed to be able to consider. [00:08:44] Speaker 01: District court's telling me not to. [00:08:48] Speaker 01: That's my time. [00:08:49] Speaker 01: I see unless the your honors would like to ask any other questions about this. [00:08:53] Speaker 03: I'll sit down and return Okay, you can reserve the remainder of your time for rebuttal. [00:08:58] Speaker 01: Thank you very much [00:09:21] Speaker 00: Good morning and may it please the court, Elizabeth Douglas on behalf of the United States. [00:09:27] Speaker 00: So I want to first address the court's questions about whether the issue on the objection to jury instructions was made below and if it was made, whether it was forfeited. [00:09:39] Speaker 00: The government's position is that it was waived. [00:09:42] Speaker 00: At the charging conference there were three versions of the jury instructions presented by the parties. [00:09:49] Speaker 00: The government had argued that the model instruction should be applied. [00:09:53] Speaker 00: The defense had argued, no, there should be the model instructions plus one sentence. [00:10:00] Speaker 00: And in the alternate, the government had said, well, you could take the defense's option and add this additional sentence that's now being disputed before this court. [00:10:12] Speaker 00: The defense never objected to that alternate additional sentence that was added. [00:10:19] Speaker 00: object in their papers. [00:10:21] Speaker 00: And then when it was presented by the district court in the tentative, the government reiterated its objection and said, we think that the model instruction should apply. [00:10:32] Speaker 00: And the defence said, we accept this instruction. [00:10:36] Speaker 00: So they affirmatively accepted in it. [00:10:39] Speaker 00: And at the very least, this is forfeiture because [00:10:42] Speaker 00: the district court was not on notice that the defense believed that the last sentence that is now dispute was an objection by the defense counsel below. [00:10:55] Speaker 00: And that is why the government contends that this error is waived and if not waived, at the very least forfeited and should be reviewed solely for plain error. [00:11:04] Speaker 00: So turning to whether this instruction was erroneous, [00:11:10] Speaker 00: It wasn't. [00:11:12] Speaker 00: The instruction correctly tracks the language of Lopez, which instructs us to have the jury consider the particular circumstances of the defendant and then whether a person of reasonable firmness in those circumstances would have perceived this threat. [00:11:32] Speaker 00: And if you look at Lopez, it's all about the perception. [00:11:35] Speaker 00: So here the dispute was whether the defendant's perception of a threat actually existed, and whether it was this hallucination or delusion caused by schizophrenia. [00:11:48] Speaker 00: And by looking at the counsel's argument below, you can see that everyone assumed that schizophrenia could be considered once you got to the threshold question of if defendant did have schizophrenia. [00:12:01] Speaker 00: the government in its opening close after discussing the elements of the offense and turning to the rebuttal, argued about whether or not the defendant had schizophrenia. [00:12:13] Speaker 00: It did not argue that the jury could not consider schizophrenia. [00:12:16] Speaker 00: Then when defense counsel focused her closing on the duress defense, she was arguing again about the fact that [00:12:28] Speaker 00: in the defense's theory that defendant had schizophrenia and thus perceived this threat. [00:12:37] Speaker 00: And again in government's rebuttal, the government was again focusing on the question of whether defendant had schizophrenia and if she did what the impacts were. [00:12:46] Speaker 00: So the jury walking into the jury room had instructions that said you should be considering the defendant's particular circumstances and they'd gotten those instructions [00:12:56] Speaker 00: after here, oh actually they were pre-instructed, they then had heard significant argument all about whether or not the defendant had schizophrenia and if she did what effects were. [00:13:06] Speaker 00: And so the idea that, I think the assumption here that defense is making that the jury completely ignored defendant's schizophrenia is not supported by the record when looking at the evidence before the jury and the arguments that were made. [00:13:27] Speaker 00: So I think that the instruction was certainly not wrong under any standard whether or not you consider it waived or forfeited. [00:13:37] Speaker 03: As to this second argument, the rebuttal. [00:13:50] Speaker 00: Yes. [00:13:52] Speaker 00: So turning to the rebuttal, [00:13:53] Speaker 00: There are two separate issues and I want to be clear about the two separate issues because the defence raises two objections before this court. [00:14:03] Speaker 00: One is a burden shifting argument and one is about whether or not there were comments that denigrated the defence. [00:14:14] Speaker 00: Defense counsel only objected to denigration, the second issue, and therefore the burden shifting should be reviewed in the government's position for plain error because it was not objected to specifically below. [00:14:29] Speaker 00: So taking that first issue under plain error, burden shifting, the government's position is that there was no burden shifting. [00:14:36] Speaker 00: The entire rebuttal of the government was about the duress defense. [00:14:41] Speaker 00: The government had made clear in its opening close that it had the burden on the offense itself and had walked through every element and had reiterated multiple times that it had the burden. [00:14:54] Speaker 00: The defense's closing then spoke about [00:14:59] Speaker 00: mainly the duress defense after conceding that the defendant had committed the offense itself. [00:15:06] Speaker 00: And so by the time the government stood up for the rebuttal, the key issue was the duress. [00:15:11] Speaker 00: And the government correctly stated that the defense bore the burden on the affirmative duress. [00:15:17] Speaker 00: And so it was not error to say that the defense bore its burden when talking solely about the defense. [00:15:26] Speaker 00: And it certainly wasn't plain error. [00:15:28] Speaker 00: And then to the second issue about whether or not the government's rebuttal denigrated the defense. [00:15:37] Speaker 00: The defense counsel here relies solely on the case of United States v. Sanchez. [00:15:43] Speaker 00: And Sanchez itself is relatively terse about this issue. [00:15:46] Speaker 00: It speaks a lot about vouching and then says also denigration of the defense is improper. [00:15:54] Speaker 00: Subsequent cases indicate that Sanchez's [00:15:58] Speaker 00: Prohibition is about making an ad hominid attack on defense counsel and attacking the integrity of offices of the court. [00:16:09] Speaker 00: The rebuttal here did not do that. [00:16:11] Speaker 00: It did not imply that the defense counsel were denigrating, oh sorry, were lying. [00:16:19] Speaker 00: You can, as a prosecutor, say that a defendant who has testified is incredible. [00:16:26] Speaker 00: This court has also allowed prosecutors to comment on the defense theory of the case. [00:16:31] Speaker 00: You can call the defense theory a fantasy. [00:16:34] Speaker 00: You can call the defense case smoke and mirrors. [00:16:38] Speaker 00: Again, you can call it a figment of defendant's imagination. [00:16:42] Speaker 00: And so suggesting that the defendant was malingering and feigning as there was evidence put forth to the jury that defendant had been malingering and feigning her mental illness was an appropriate thing to happen in the rebuttal. [00:17:02] Speaker 00: And then the comments about sort of the inflammatory nature, subsequent cases in this circuit suggested that the prosecutor can't suggest that by quitting defendant, they might let a child killer on the loose or otherwise cause further harm. [00:17:15] Speaker 00: And that certainly did not occur here. [00:17:19] Speaker 04: And there are a line between making a rebuttal argument that challenges the defense's theory, which is what I understand your saying occurred, and one that attacks the defendant's character. [00:17:32] Speaker 04: So it seems here that some of the remarks came pretty darn close to that in calling the defendant a liar. [00:17:41] Speaker 00: And if a defendant has testified and put their credibility at issue, the prosecutor is allowed to call the defendant's credibility into question. [00:17:53] Speaker 00: In a case cited in our briefs, U.S. [00:17:54] Speaker 00: ReRUDE, 88 F3rd, 1538, the prosecutor called the defendant a conman, a charlatan, and a liar over 90 times. [00:18:05] Speaker 00: And this court found that that was acceptable. [00:18:08] Speaker 00: And here, the defendant testified, and there was evidence before the jury that she had, in fact, lied. [00:18:15] Speaker 00: She admitted she lied. [00:18:17] Speaker 00: Her defense expert admitted she lied. [00:18:19] Speaker 00: And so therefore, suggesting that she was lying was an appropriate thing to do in rebuttal. [00:18:28] Speaker 03: What's your case for that? [00:18:30] Speaker 00: That was United States v. Rude, R-U-D-E, 88 [00:18:35] Speaker 00: F3rd, 1538. [00:18:36] Speaker 00: It was at page 1548, 9th Circuit, 1996. [00:18:41] Speaker 00: Okay. [00:18:41] Speaker 00: If there are no further questions, the government respectfully asks this court to affirm. [00:18:55] Speaker 03: All right. [00:18:55] Speaker 03: Thank you. [00:18:56] Speaker 03: I'm done. [00:18:57] Speaker 03: Okay. [00:18:57] Speaker 03: Thank you, counsel. [00:19:19] Speaker 01: Thank you, Your Honors. [00:19:20] Speaker 01: I'll start where we just left off, perhaps, and note that the case law does allow the government to accuse a defendant of having lied about the crime. [00:19:29] Speaker 01: There are two things here that went well beyond that smaller principle that allows certain comments by a prosecutor about a defendant's credibility. [00:19:36] Speaker 01: One I think Your Honor just addressed, which is that a campaign can be waged so thoroughly and so broadly that it begins to attack the defendant's character, character for truthfulness, [00:19:47] Speaker 01: as well as the defense counsel and defense experts truthfulness and integrity. [00:19:53] Speaker 01: I think that's what we see here where across these several pages of the thought experiment for the jury, the prosecutor asked them to consider really not what Ms. [00:20:02] Speaker 01: Carter was saying, but what her experts and counsel were saying, what the diagnosis was, the symptoms she was experiencing. [00:20:08] Speaker 01: On one ER35, this is the explanation of the symptom of a blunted affect. [00:20:14] Speaker 01: That was a diagnosis and a symptom provided by Ms. [00:20:16] Speaker 01: Carter's expert. [00:20:17] Speaker 01: And to say that that's too convenient, it's a story, they're boxed in, that's comments on the expert's credibility and her integrity. [00:20:24] Speaker 01: That goes well beyond what's permissible about a comment about the defendant. [00:20:28] Speaker 01: And then the second issue was the inflammatory thought exercise, asking jurors, not commenting on the evidence, making argument to the jurors, but asking them to sit in the shoes of the defendant. [00:20:37] Speaker 01: And starting from the moment the defendant walked into LAX, thinking through the lies the defendant must have come up with, colluding with her defense counsel and expert to come up with the diagnosis that the government said was a lie. [00:20:49] Speaker 01: And then on one ER 36, the comments praised in May terms, describing the entire defense team, quote, it's too convenient. [00:20:57] Speaker 01: This is the best they can do with what they have. [00:21:00] Speaker 01: In my last 10 seconds, I just wanted to point the court to two cases on the objection to the jury instruction. [00:21:07] Speaker 01: The first is Shorter versus Baca, 895 F3rd, that's page 1183, and Costin versus Nangalama, 13 F4th, 729, page 732. [00:21:23] Speaker 01: And those both explain that an objection to a jury instruction need not be formal. [00:21:27] Speaker 01: It need not be a pointless formality, as we were discussing earlier. [00:21:31] Speaker 01: And it can be lodged as an alternative during instruction. [00:21:33] Speaker 01: It need not be separately set out as a separate objection so long as the issue is called into focus. [00:21:41] Speaker 01: Thank you, Your Honors. [00:21:42] Speaker 03: All right. [00:21:42] Speaker 03: Thank you very much. [00:21:44] Speaker 03: The United States versus Carter is submitted.