[00:00:00] Speaker 01:
The case just argued will be submitted.

[00:00:11] Speaker 01:
And we'll proceed to hear argument in the next case on calendar for argument, which is 25-675, United States versus Douglas Dar Malatare.

[00:00:25] Speaker 01:
And we will hear first from Ms.

[00:00:28] Speaker 01:
Music.

[00:00:40] Speaker 01:
May proceed when you're ready.

[00:00:44] Speaker 03:
Good morning, Judge Collins, Judge Forrest, and Judge Fitzwater.

[00:00:48] Speaker 03:
May it please the court, my name is Elizabeth Musick, and I represent the defendant and appellant, Douglas Darren Malatare, along with my co-counsel, Paul Gallardo, who cannot be here today due to military training.

[00:01:02] Speaker 03:
We also represented Mr. Malatere at the district court level.

[00:01:06] Speaker 03:
I'd like to reserve two minutes of my time for rebuttal, if I may, Your Honors.

[00:01:12] Speaker 03:
Mr. Malatere has raised three issues on appeal.

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He appeals the admission of government's Exhibit 30 at trial, which consisted of a string of text messages between Mr. Malatere and the decedent, Sean Weypert.

[00:01:27] Speaker 03:
He appeals the denial of his Rule 29.

[00:01:30] Speaker 01:
On the issue of the text messages, so your position is that they were hearsay with respect to the side of the conversation of the decedent.

[00:01:44] Speaker 01:
Correct.

[00:01:46] Speaker 01:
What is the

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What is the attestation for which it's being offered for the truth of the matter?

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What was the decedent saying?

[00:01:56] Speaker 01:
What is the truth of the matter that they were offered for?

[00:01:59] Speaker 03:
Well, the government would have the court believe that the text messages... You're the one objecting to them.

[00:02:05] Speaker 01:
So obviously you think some assertion is being made in those and you don't want that in because, you know, that is a hearsay.

[00:02:13] Speaker 01:
So tell me what the assertion is that's in the text message that you think violates the hearsay rule.

[00:02:19] Speaker 03:
Of course, Your Honor.

[00:02:20] Speaker 03:
It's specifically the decedent's statement, I can only afford a half.

[00:02:26] Speaker 01:
That is- So that was introduced in order to show that he was really poor?

[00:02:30] Speaker 03:
No, Your Honor.

[00:02:32] Speaker 03:
That was introduced for the purpose of showing that a half was actually meant to be a half a pill of fentanyl.

[00:02:41] Speaker 01:
But that language- Somebody else testified that a half in the community was understood to mean half a pill.

[00:02:48] Speaker 01:
That just says that he made this statement.

[00:02:53] Speaker 03:
Well, actually, Your Honor, what's interesting is that at trial the government did call a young lady named Jane L. Davis, who was a former drug user, and she testified specifically

[00:03:02] Speaker 03:
that the language a half would refer to methamphetamine, not fentanyl.

[00:03:08] Speaker 01:
Well, I mean, the prosecutor seemed to have misspoken in framing the question.

[00:03:13] Speaker 01:
And nobody caught it at the time.

[00:03:15] Speaker 03:
That may be, but that's what the court record shows.

[00:03:17] Speaker 01:
But that's a reasonable reading of the record that the jury could have had and that we could have, that it was a slip of the tongue.

[00:03:23] Speaker 03:
It could have been, Your Honor, but our argument... The whole case was about fentanyl.

[00:03:30] Speaker 01:
There's some discussion of marijuana, but it's all about fentanyl, and then all of a sudden there's one word stuck in there.

[00:03:36] Speaker 01:
But still, what is the statement that is being introduced for the truth of the matter that you think needs to be... What's the assertion of fact being made?

[00:03:48] Speaker 03:
The government is trying to assert that a half

[00:03:50] Speaker 03:
means fentanyl, therefore, that the parties were engaging in a conversation that amounted to a contract to buy and sell drugs.

[00:04:00] Speaker 01:
So if I call Best Buy and say, I would like to buy a refrigerator, is that a statement of fact?

[00:04:09] Speaker 01:
Am I asserting something?

[00:04:11] Speaker 01:
Well, I think the difference between- Aren't authors and acceptances just viewed as being verbal acts and not even hearsay at all?

[00:04:20] Speaker 03:
I think the difference is that in order for this fact statement to come into evidence It would have to be a statement against penal interest your honor and our argument is that the statement I can only afford a half is not a statement against penal interest because it can be interpreted a number of different ways your honor in your scenario I would like to purchase a refrigerator and

[00:04:42] Speaker 03:
There aren't too many other ways.

[00:04:44] Speaker 01:
If I said I'd like to purchase a, you know, a fentanyl pill, that's clearly against penal interest, isn't it?

[00:04:52] Speaker 03:
It would be, Your Honor, but that's not what the decedent said.

[00:04:54] Speaker 01:
But then it's just a question of foundation then.

[00:04:57] Speaker 01:
You know, we don't expect that people, you know, who are negotiating drug deals will be as explicit as I just was and frequent that they use code.

[00:05:08] Speaker 01:
So then you have a foundational issue.

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You need to lay a foundation.

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And that's exactly what the district court did here, required the foundation to be laid that that was what the language referred to, and then it's a drug deal, and then it's a statement against interest.

[00:05:24] Speaker 01:
Why did the court abuse its discretion on that conclusion?

[00:05:27] Speaker 03:
Well, Your Honor, the purpose against the rule against hearsay is that secondhand statements that are represented out of court are inherently unreliable, and that's why the court seeks to not allow them

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absent several exceptions to the rule against hearsay.

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And the statement a half can be interpreted a number of different ways.

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It's an inherently unreliable statement.

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And during the trial, we argued repeatedly that there was ample evidence that our client, Mr. Malatier, was also perhaps selling marijuana.

[00:06:05] Speaker 03:
The phrase, I can only afford a half if you can stop by,

[00:06:09] Speaker 03:
could also apply to marijuana rather than fentanyl.

[00:06:12] Speaker 03:
However, if it did apply to marijuana, it would not be a statement against interest because we also elicited testimony at trial from agents who testified that because marijuana is legal under state law in Montana, albeit not federal law, that the agents, both federal and local, do not have an interest in pursuing prosecutions in cases involving marijuana.

[00:06:38] Speaker 03:
The agent specifically testified that he has seen as much as 10 pounds of marijuana and has submitted a request for prosecution and was told that charges would not be pursued against that individual.

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And so if the statement, I can only afford a half, if you can stop by, actually refers to, say, a half a gram of marijuana or half an ounce.

[00:06:58] Speaker 04:
Well, that goes back to Judge Collins' foundation question of was there anything in this record that the district court would look at and think that that statement was referring to marijuana?

[00:07:08] Speaker 03:
I think that there could be, yes, your honor.

[00:07:10] Speaker 04:
No, I'm not asking if there could be.

[00:07:11] Speaker 04:
I'm asking if there is.

[00:07:13] Speaker 03:
We presented evidence at trial that Mr. Malatier had distribution quantities of marijuana during the traffic stop and search warrant search of his vehicle.

[00:07:26] Speaker 03:
That was found.

[00:07:27] Speaker 04:
What you need here is you need evidence to indicate that this lingo is used in reference to marijuana, not that there was

[00:07:36] Speaker 04:
Some suggestion that marijuana might have been involved or that he was using or buying or whatever, but this lingo That's what we're talking about is referencing marijuana Is there anything in this record for the district court to think that that was true?

[00:07:48] Speaker 03:
There was testimony that this language could apply to marijuana.

[00:07:51] Speaker 03:
Where is it in the record?

[00:07:57] Speaker 03:
Your honor I believe it was actually in the

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Same witness's testimony, Ms.

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Davis, Jane L. Davis, she testified that that language could refer to any number of different types of drugs.

[00:08:12] Speaker 03:
I believe she also testified that it could apply to marijuana.

[00:08:17] Speaker 03:
We also elicited testimony regarding a scale that was found in the backseat of the vehicle that Mr. Malatier was driving.

[00:08:25] Speaker 03:
And the fact that a scale would not commonly be used to measure pills for, say, fentanyl distribution, but would rather be used for a substance like marijuana that is typically weighed.

[00:08:37] Speaker 03:
And a half can very much refer to a quantification for marijuana, your honor.

[00:08:45] Speaker 00:
Well, referring to a statement against penal interest, a three-part test applies in the Ninth Circuit.

[00:08:50] Speaker 00:
What element do you maintain is not satisfied by this record?

[00:08:55] Speaker 03:
Yes, Your Honor.

[00:08:57] Speaker 03:
So the three-part test is that the declarant has to be unavailable and that the statement has to subject the declarant to criminal liability and that corroborating circumstances have to indicate the trustworthiness of the statement.

[00:09:11] Speaker 03:
And we are asserting that the statement would not subject the declarant to criminal liability.

[00:09:16] Speaker 03:
And Special Agent Katherine Donahue from the FBI specifically testified

[00:09:21] Speaker 03:
that these text messages would not subject either declarant to criminal liability.

[00:09:26] Speaker 03:
Therefore, the second prong of that test fails in this.

[00:09:31] Speaker 01:
You said she didn't really know.

[00:09:32] Speaker 01:
I mean, she didn't have, she was there introduced for a limited purpose, correct?

[00:09:37] Speaker 03:
She was there specifically for the purpose of laying the foundation.

[00:09:43] Speaker 01:
Foundation for the text messages.

[00:09:44] Speaker 03:
And admission of the text messages.

[00:09:46] Speaker 01:
And did she have experience in drug investigations?

[00:09:50] Speaker 03:
Your Honor, I believe she testified that her experience was primarily in violent crimes.

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However, she sees all number of different crimes.

[00:09:58] Speaker 01:
She wasn't called for that purpose and wasn't really qualified to answer it and said she just didn't know.

[00:10:04] Speaker 03:
She said that she could not say for certain what the text messages meant.

[00:10:09] Speaker 03:
She would only be able to speculate.

[00:10:11] Speaker 03:
And she said that the text messages would not subject either declarant to criminal liability.

[00:10:17] Speaker 01:
You wanted to save some time.

[00:10:18] Speaker 01:
I did, Your Honor.

[00:10:19] Speaker 01:
All right.

[00:10:19] Speaker 01:
Thank you, Counsel.

[00:10:20] Speaker 03:
Thank you.

[00:10:21] Speaker 01:
All right.

[00:10:22] Speaker 01:
We will hear now from Ms.

[00:10:27] Speaker 01:
Sabel.

[00:10:28] Speaker 01:
Did I pronounce that correctly?

[00:10:29] Speaker 02:
Sabel, Your Honor.

[00:10:30] Speaker 01:
Sabel.

[00:10:30] Speaker 01:
Thank you.

[00:10:31] Speaker 01:
All right.

[00:10:31] Speaker 02:
Thank you.

[00:10:38] Speaker 01:
You may proceed.

[00:10:39] Speaker 02:
Good morning, Your Honors.

[00:10:40] Speaker 02:
May it please the Court.

[00:10:41] Speaker 02:
Kelsey Sabel from the District of Montana on behalf of the United States.

[00:10:45] Speaker 02:
Your honors, this court reviews the admission of this text message evidence for an abuse of discretion.

[00:10:51] Speaker 02:
And there is no dispute that the district court identified the correct law that applies.

[00:10:56] Speaker 02:
And so the only remaining question for this court is whether his application of the facts was illogical, implausible, or without support in the record.

[00:11:04] Speaker 01:
So what do you see as the assertion of fact that the declarant is making that would

[00:11:14] Speaker 01:
Make it a hearsay statement if the exception didn't apply So your honor I we did not argue in the district I understand But I'm trying to analytically understand you don't get to a hearsay exception unless you're otherwise hearsay I'm trying to understand what was the otherwise here say that then we need to see whether there's an exception that covers it and

[00:11:34] Speaker 02:
Absolutely your honor and I don't think that there is I think you know the statement I can only afford a half if you can stop by that would absolutely be hearsay if we Introduced it for the fact that he can only afford a half, but we did not I mean we introduced that statement to show that he was Purchasing or obtaining a half a pill of fentanyl from defendant Malatera I mean this is that's not a statement offered for the truth of his financial situation and

[00:12:01] Speaker 02:
This is the offer and acceptance to obtain half a pill of fentanyl.

[00:12:06] Speaker 02:
So I don't know that there is an assertion that's offered for the truth of the matter in this statement.

[00:12:11] Speaker 04:
But you haven't argued that.

[00:12:12] Speaker 04:
You've argued you've taken the merits up of the exception that the defense.

[00:12:17] Speaker 02:
Correct, Your Honor.

[00:12:17] Speaker 02:
And we did that in the district court, and we do that here.

[00:12:21] Speaker 02:
Of course, this court can affirm on any grounds supported by the record.

[00:12:24] Speaker 02:
But we do also think it's clear that this is a statement against penal interest.

[00:12:29] Speaker 02:
And the district court did a very thorough evaluation of this evidence to determine that.

[00:12:36] Speaker 01:
And under federal rule of evidence... Any Ninth Circuit case that tells us how to apply the hearsay rules

[00:12:45] Speaker 01:
to offer an acceptance in a drug deal.

[00:12:48] Speaker 01:
I would think this fact pattern arises, you know, thousands of times.

[00:12:54] Speaker 01:
Is there no case on point that tells us how to analyze these vis-a-vis the hearsay rules?

[00:13:01] Speaker 02:
We did not find any, Your Honor, with respect to the offer and acceptance specifically.

[00:13:07] Speaker 02:
You know, the district court did reference a case in its order

[00:13:15] Speaker 02:
In its order denying the motion for a new trial, we did not cite it in our brief.

[00:13:19] Speaker 02:
It's the Nazemian case.

[00:13:21] Speaker 02:
The court references it at excerpts of the record 18.

[00:13:25] Speaker 02:
It's 948, Fed 2nd, 522.

[00:13:29] Speaker 02:
It's not an offer and acceptance case, but I think it's probably the closest factually analogous case that was discussed on this issue.

[00:13:36] Speaker 02:
In that case, there was a deceased conspirator who told another co-conspirator in this drug conspiracy that he would not sell to.

[00:13:45] Speaker 02:
the co-conspirator, because the defendant did not pay him for a prior heroin transaction.

[00:13:50] Speaker 02:
That's obviously not offer and acceptance, but this court talked about how the deceased statements in that case sort of indicated or implied that he was involved in a heroin transaction, which is sort of similar to what we have here.

[00:14:03] Speaker 01:
And in Nazemian, we admitted that under the against penal interest.

[00:14:07] Speaker 01:
That is correct, Your Honor.

[00:14:08] Speaker 01:
I mean, the closest case factually seems to be it's unpublished, but the Davis case,

[00:14:15] Speaker 02:
Well, I think the difference in the Davis case, Your Honor, is I mean, I think there's two important differences.

[00:14:20] Speaker 02:
The first is that the text messages in those case were admitted under an entirely different rule by the district court, 801, with respect to the defendant's statements.

[00:14:30] Speaker 02:
And there was the discussion of this context issue.

[00:14:32] Speaker 02:
The decedent's statements were for context for the defendant's statements.

[00:14:35] Speaker 02:
So there was no foundational testimony or evidence that was presented as to what these

[00:14:41] Speaker 02:
What these messages mean what a g-spot means or why those messages regarding the g-spot were?

[00:14:48] Speaker 02:
Against the declarants penal interest and I think another distinction that's very important was the Davis the court in the Davis case admitted I think 27 sort of logistical or Messages going to sort of I'm going here.

[00:15:03] Speaker 02:
I'm doing this or I've arrived here and those were I

[00:15:06] Speaker 02:
unquestionably not statements against penal interest.

[00:15:09] Speaker 02:
And so that was inappropriate in the Davis case.

[00:15:11] Speaker 01:
I would also- In Davis, were the other statements, you know, the court refers to two of the 27, were the other 25, were they related to the logistics of the transaction or what were they?

[00:15:24] Speaker 02:
They were related to the logistics, Your Honor.

[00:15:27] Speaker 02:
There were texts saying, I'm leaving now, or I'm arriving at this place, or I'll see you soon.

[00:15:33] Speaker 02:
Text messages like those that were related to the logistics of the transaction.

[00:15:37] Speaker 02:
And this court held that the admission of those text messages

[00:15:41] Speaker 02:
were not state those were not statements against penal interest so that was inappropriate and when we can what the admission of those was inappropriate and when we combine that your honor with the lack of foundational evidence as to the statements that were arguably against penal interest related to the G spot.

[00:15:57] Speaker 02:
You know, that's a very different situation than we have with these text messages.

[00:16:02] Speaker 02:
You know, where we have the foundational testimony, Ms.

[00:16:04] Speaker 02:
Davis explaining what are you looking means and I can only afford a half means.

[00:16:09] Speaker 02:
I mean, she testified that, you know, I can only afford a half or can I get a half is the way you ask for a half a pillow fentanyl in Browning at this time.

[00:16:19] Speaker 02:
She explained.

[00:16:19] Speaker 00:
Could you have a scenario where WIPT statements are not being offered for the truth of the matter asserted?

[00:16:25] Speaker 00:
But the statements combined with other circumstantial evidence is probative.

[00:16:31] Speaker 00:
I think that may be where Judge Collins was going originally.

[00:16:33] Speaker 00:
In other words, these two statements are not offered for the truth, but for the making of these statements in combination with other evidence to prove guilt circumstantially.

[00:16:44] Speaker 02:
I think that's absolutely correct, Your Honor.

[00:16:46] Speaker 02:
I think, you know, if these statements are not made for the truth of the matter asserted, then they're not hearsay and they're admissible if they're authenticated, which they were.

[00:16:54] Speaker 02:
And these text messages are circumstantial evidence that Mr. Malatare and Mr. Whippard arranged for Mr. Malatare to deliver

[00:17:02] Speaker 02:
a half a pill of fentanyl to him on the day that he passed away from a fentanyl overdose.

[00:17:08] Speaker 02:
And so these messages combined with the testimony of Mr. Whippert's mother, that Mr. Malatier was at the house earlier that day, that Mr. Whippert was acting consistently with a fentanyl overdose, the fact that he died of a fentanyl overdose, and the evidence supporting that Mr. Malatier was

[00:17:25] Speaker 02:
dealing fentanyl is more than sufficient circumstantial evidence for a jury to convict Mr. Malatare of the charge and count one of the indictment.

[00:17:36] Speaker 02:
And, you know, I think, Your Honor, again, you know, this comes to this court on an abuse of discretion review.

[00:17:43] Speaker 02:
So, you know, even if the court does find that it would not have admitted the text message, it was certainly not illogical or implausible for the district court to interpret them the way that it did based on all

[00:17:55] Speaker 02:
evidence in the record, and it was certainly not without support that these texts referred to a sale of half of a pill of fentanyl, and so there was no abuse of discretion here.

[00:18:04] Speaker 01:
Would you agree that, I mean, this was fairly critical to your case?

[00:18:08] Speaker 01:
Without the text message, this is potentially a Rule 29.

[00:18:13] Speaker 02:
I don't know that I do agree with that, Your Honor.

[00:18:15] Speaker 02:
I think it's certainly important.

[00:18:16] Speaker 02:
It's an important piece of evidence.

[00:18:18] Speaker 02:
We said that, candidly, to the district court.

[00:18:20] Speaker 02:
But I think there's a lot of evidence in this case that was important.

[00:18:24] Speaker 02:
And even if we don't have, even if Mr. Whippert's text messages were not admitted, Mr. Malataire's text messages certainly would have been.

[00:18:32] Speaker 02:
And based on even just those and all of the other evidence in the record with respect to Mr. Malataire's,

[00:18:37] Speaker 02:
drug trafficking and Mr. Whippert's cause of death and Mr. Malatyr's presence at his house earlier that day in the crushed fentanyl pill.

[00:18:44] Speaker 02:
I mean we do believe that there is sufficient evidence for a rational fact finder to find Mr. Malatyr guilty even without these text messages.

[00:18:53] Speaker 02:
And if the court has no further questions, we would just respectfully request this court affirm the district court and I'll cede the remainder of my time.

[00:19:01] Speaker 01:
Thank you.

[00:19:05] Speaker 01:
Council will hear rebuttal, and since we took you over your time, I'll give you the two minutes you had requested.

[00:19:13] Speaker 03:
Thank you, Your Honor.

[00:19:14] Speaker 03:
I appreciate that.

[00:19:16] Speaker 03:
And Judge Collins, I certainly agree with you that these text messages were extremely crucial to the government's case.

[00:19:24] Speaker 03:
The government argued that repeatedly throughout the course of trial.

[00:19:27] Speaker 03:
I believe my most memorable quote was that the text messages were a key, albeit

[00:19:34] Speaker 03:
a small albeit key piece of their evidence, which is why they were fighting so hard to get them in.

[00:19:39] Speaker 03:
Regarding the case law on this issue, I think the court hit the nail on the head when you questioned, you know, why is there no case law on this issue?

[00:19:49] Speaker 03:
Certainly there's something that's more on point.

[00:19:52] Speaker 03:
And I too could not find anything that was directly on point with our fact pattern.

[00:19:57] Speaker 03:
But I did want to point out that some of the seminal cases

[00:20:01] Speaker 03:
on this topic, specifically the Williamson case, which was the United States Supreme Court case.

[00:20:07] Speaker 03:
It dates back to 1994.

[00:20:09] Speaker 01:
And so when this... The response to the Nazemian case that the district court brought up in the new trial and that counsel just brought up.

[00:20:17] Speaker 03:
Yes.

[00:20:17] Speaker 03:
So that actually is... I was going to segue into that after I discussed Williamson.

[00:20:22] Speaker 03:
But I think my point with talking about the case law

[00:20:28] Speaker 03:
is that at the time that these opinions were authored, and those cases went to trial and through the appeal process, text messaging didn't exist.

[00:20:39] Speaker 03:
I think that the court was likely contemplating statements that were of an oral nature rather than a written nature.

[00:20:46] Speaker 01:
But the rules of evidence treat oral and written assertions comfortable.

[00:20:51] Speaker 03:
I agree.

[00:20:51] Speaker 03:
However, in this case, the text messages were a very crucial part of the government's case.

[00:20:57] Speaker 03:
And by admitting the text messages.

[00:20:58] Speaker 01:
But Nazamian does seem to suggest that if you make a statement that in the statement itself reflects that you are engaged in drug trafficking, that that statement is against penal interest.

[00:21:15] Speaker 01:
And why isn't that here?

[00:21:16] Speaker 01:
If an appropriate foundation was laid that the statement is a request for a fentanyl pill, a half a pill, why isn't that by its nature against penal interest?

[00:21:28] Speaker 03:
Your Honor, because I think that it has room for interpretation, where in the Nazemian case, they were specifically talking about a drug debt, which was more clearly inculpatory than the language at issue in this case.

[00:21:42] Speaker 03:
I think it was extremely important that these were written statements as well, and they were an exhibit that was admitted at trial, because the jury got to take that exhibit back with them.

[00:21:55] Speaker 03:
They got to look at these text messages throughout their deliberations.

[00:21:58] Speaker 03:
rather than just having to remember oral testimony from a witness.

[00:22:03] Speaker 01:
Thank you, Your Honor.

[00:22:05] Speaker 01:
Thank you, counsel.

[00:22:05] Speaker 01:
I thank counsel for your arguments in this case.