[00:00:09] Speaker 01:
Good morning, Your Honors. I'm Todd Burns, and my client has indicated to me that he prefers to go by Mr. Setagayan, so that's how I'll be referring to him.

[00:00:18] Speaker 01:
My hope is to reserve five minutes for rebuttal.

[00:00:22] Speaker 01:
There were two components to the trial defense in this case.

[00:00:28] Speaker 01:
One was a mere presence defense, an affirmative defense. And the other was to attack or undermine the credibility of the government's key cooperating witness.

[00:00:40] Speaker 01:
And the district court committed evidentiary and instructional errors in both of those contexts, which undermine Mr. Setagayan's right to present a defense and also to have a fair trial. I'm going to begin with the mere presence defense and with the evidentiary error. The goal in that context was to distinguish the people that were involved, admittedly involved in drug trafficking, from Mr. Sedeq Gayan, who was a spectator, perhaps an owing spectator, but nonetheless a spectator.

[00:01:14] Speaker 01:
And the video evidence from outside the Scoville residence provided strong proof of that distinction. It showed that the people who were engaged in drug trafficking did two things that were the hallmark of that drug trafficking. They wore latex gloves, so they didn't leave fingerprints on the packages. And they carry packages for mailing.

[00:01:34] Speaker 03:
So the jury did hear that other people in the videos were wearing gloves and carrying packages and that your client was never seen doing either thing, correct?

[00:01:45] Speaker 01:
The one thing that the judge specifically allowed was the paralegal witness, Ms. Gavorgian, to testify that none of the videos can Mr. Sadegayan be seen wearing gloves or holding packages.

[00:01:57] Speaker 03:
So I struggle to see how— What you wanted to have happen is very different than what actually happened, other than that it would have taken more time and been more complicated.

[00:02:07] Speaker 01:
Well, it wouldn't have been very complicated. It wouldn't have taken very much time, and it would have been powerful. What Ms. Gavorgian would have said is, of the four people who were admittedly involved in drug trafficking, she saw them on 59 occasions doing one of those two things, which were the hallmark of their drug trafficking, on dozens of occasions.

[00:02:26] Speaker 01:
And the jury just simply didn't get to hear that.

[00:02:30] Speaker 03:
Why is that so much more persuasive than seeing that some of the time they were wearing gloves and carrying packages, but your client never was?

[00:02:36] Speaker 01:
Well, I don't think Ms. Kevorgian even was allowed to say that. The judge didn't even allow her to say that. What he did allow her to say is that Mr. said a guy and did not do either of those two things.

[00:02:45] Speaker 03:
But the jury did see some videos in which the other people were carrying packages and wearing gloves.

[00:02:49] Speaker 01:
They saw two videos in which Mr. Melcom and Mr. Chavez were seen doing those two things, carrying packages and wearing gloves. So those are those are.

[00:02:59] Speaker 02:
Weren't both sides allowed to put in 20 videos?

[00:03:03] Speaker 01:
The judge said the defense could put in as many as the government did. I think the defense put in – I forget the exact number – six or something like that. But the point is the – Testimony would have been very powerful and much shorter in time if Ms. Gavorgian was allowed to do what was proposed to be done, which she could say, look, Mr. Melcom is wearing gloves on 15 occasions. He's seen carrying packages on 14 occasions. Ms. McGrath has seen similar numbers for all those people, adding up to 59 times over a 10-day period of time.

[00:03:37] Speaker 01:
I think a jury would certainly wonder, and that would make a powerful closing argument, like, look, these people who are the drug traffickers, you can see that they're engaged in drug trafficking because they're doing these things over and over and over again. And Mr. Sadegayan is not. That would be a powerful argument to raise at least reasonable doubt with the jurors. And the judge's reason for precluding it's not really clear.

[00:03:58] Speaker 02:
He seemed to think, well – Wasn't the jury told that they never had gloves on?

[00:04:03] Speaker 01:
Yes, they were told that Mr. Settegein didn't wear gloves and that he didn't handle – He was also told that the admitted drug traffickers were wearing gloves.

[00:04:13] Speaker 02:
How many times do they have to hear that and see that?

[00:04:18] Speaker 01:
No, they weren't told that. She wasn't permitted to testify to that. She was permitted – the defense was permitted to introduce up to as many videos as the government did.

[00:04:27] Speaker 02:
So the defense was able and the government was able to introduce videos that effectively on one side showed – that there were admitted drug traffickers wearing gloves and that Mr. Settegani was present but not wearing gloves.

[00:04:45] Speaker 02:
Why isn't that enough? How many times do you have to do that? You have to do it all 59 times?

[00:04:50] Speaker 01:
No, I don't think you have to – you don't even have to do it one time, really. You could just have Ms. Givorgian testify tight and to the point.

[00:04:57] Speaker 02:
But she wasn't there. Excuse me? She wasn't there.

[00:05:00] Speaker 01:
No, but she reviewed all the videos.

[00:05:02] Speaker 02:
She's acting as a juror. She's going to be the 13th juror and say what she saw?

[00:05:07] Speaker 01:
No, she's going to do the same thing effectively that the government's agent witness did, which is talk about – identify who can be seen doing what in the videos. He did the exact same thing based on the same materials as Foundation. There's no allegation that in any of her testimonies she misidentified anyone or in the summary chart she misidentified anyone. She clearly identified the right people and she clearly could have gotten up and said rather than introducing 59 videos, gotten up and given a summary of These people are seen many, many times doing these things, and Mr. Setagayan is not.

[00:05:41] Speaker 01:
And it's a classic compare and contrast. I mean, when we get to probably third grade in elementary school, that's one of the major analytical tools that they test us on is compare and contrast, because that shows the truth here. The truth is these other people are engaged in drug trafficking. Mr. Setagayan is not. And the judge's reason for excluding that is not really clear. He seemed to think the defense counsel maybe should have tried to get that testimony from the FBI agent, but the FBI agent wasn't prepared to testify to that. And the defense doesn't have to put on its case through an FBI agent who may be hostile and unwilling and unprepared.

[00:06:14] Speaker 01:
Ms. Gavorgian was clearly qualified to give this testimony. And the government doesn't even argue to the contrary. It doesn't even support the district court's reason for preclusion on appeal. What it says is similar to what the court opened with. Well, didn't Ms. Kevorgian get to say Mr. Setagayan was not wearing gloves or carrying packages? Yes, true. But that leaves out the contrast. And the other argument that the government makes is a similar one Judge Friedland said as well. A few videos showed these people doing – wearing gloves and carrying packages. Yes, a couple videos showed two of them.

[00:06:46] Speaker 01:
It didn't show all four. It didn't show that there were dozens of events.

[00:06:50] Speaker 00:
I thought that part of the testimony that – or what she – the proffered testimony that was excluded – was that she was going to opine on the patterns of activity of the admitted drug... Hallmarks.

[00:07:02] Speaker 01:
They use the word patterns, but when it was explained, it's what I've called hallmarks, really, that these two things, wearing gloves, handling packages, are the things that showed someone was engaged in drug trafficking. And the government tried to essentially make the same point when it would show these videos. You know, why do people ask the agent, why do people wear gloves? So they don't put fingerprints on the packages.

[00:07:23] Speaker 00:
So I guess my question is...

[00:07:26] Speaker 00:
If she's – whether you call it hallmarks or patterns, that seems – could the district court not reasonably have thought that that crosses the line from just describing what she saw to – making a conclusion about how what she saw is indicative of drug trafficking in a way that is really an expert opinion from someone who's not an expert?

[00:07:49] Speaker 01:
It was not proposed that she would make any conclusion. What was proposed is she would say, in this number of videos, I saw Mr. Melcon.

[00:07:58] Speaker 00:
I guess my point is that to the extent she's testifying about the patterns of activity from the drug traffickers, that kind of is a conclusion, isn't it? Or a or so the district court could think?

[00:08:09] Speaker 01:
It's readily observable from the videos themselves. It's the same kind of testimony the agent Siciliano gave. It's certainly opinion testimony that's admissible under Federal Rule of Evidence 701. It's rationally based. She has a foundation for it. She's right about it. No one said she isn't right about any of it. She's right about it. She's looking at the videos. Someone's got a glove. Someone's got a package. You can show them 954 videos, but, of course, that isn't very effective. That's why the summary testimony in this context is— Makes perfect sense. And she's not going to say, oh, these are patterns that show drug trafficking. She's going to show, say, in this number of videos, Melcom was handling packages.

[00:08:43] Speaker 01:
In this number, he was wearing gloves. Same thing for McGrath. Same thing for Chavez. Same thing for Kirikosian. And then an argument, closing argument, defense counsel says, why is it that Mr. Sadegayan is not wearing gloves or carrying packages? Because he's not engaged in the drug trafficking. The other people are.

[00:08:58] Speaker 03:
Did they make that argument at closing?

[00:09:00] Speaker 01:
No, because they didn't have that contrast.

[00:09:02] Speaker 03:
Why didn't they make that argument at closing with the evidence it was in, that he wasn't ever wearing gloves in the videos or carrying packages in the videos?

[00:09:08] Speaker 01:
Well, they didn't make that specific argument that I said. I don't remember the exact closing. Of course, they made the argument, you know, sort of along the lines that he was merely present because that was the defense. But they were deprived of the key contrast evidence to make that defense.

[00:09:22] Speaker 02:
Key contrast evidence was the videos that showed he didn't have gloves.

[00:09:26] Speaker 01:
Sure, and the judge didn't want to admit all 954 videos for obvious reasons.

[00:09:31] Speaker 01:
Or the summary chart, which was also administered. You only need some. You don't need all.

[00:09:38] Speaker 01:
Well, you need them all when the numbers are big to show zero as compared to a mountain of evidence that these people are doing this stuff. If there's only a couple of times where other people are wearing gloves or carrying packages, say, okay, well, sometimes they were wearing gloves. Sometimes they were – it's not that compelling. But if there's 59 times, that's a pretty darn compelling contrast.

[00:10:03] Speaker 01:
Switching gears in the same – in the mere presence context, the jury instruction, the central case from this court on that is Negrete Gonzalez. And the government seizes on language in Negrete Gonzalez that says if the government's case is based on more than just a defendant's presence, presence and the jury is properly instructed in all the elements of the crime, then a mere presence instruction is unnecessary. And they say, well, here, you know, there was an instructional error on the elements and there was more than mere presence.

[00:10:33] Speaker 01:
But the same thing holds in Negrete Gonzalez. On the thing that they wanted the instruction on to do mere presence, there was no instructional error. and the court goes on in the next paragraph and admits that there was more than mere presence. It says his activity in the parking lot was described by agents as counter-surveillance, and he passed a knife into the bedroom when requested to do so by Medina. These facts were important, but the key evidence remained his presence. This case, same thing. The key evidence remained his presence.

[00:11:03] Speaker 01:
Not the cooperator's testimony?

[00:11:07] Speaker 01:
Well, the cooperator's testimony, that's, of course, another issue in this case, which if I have time, I'll get to. It should have been undermined in ways it wasn't allowed to be undermined. But, no, I think this court has held, like, especially if you're doing harmless error analysis, you can't rely on cooperator testimony because it's problematic. So – No, I think the key objective evidence is the video evidence, is his presence there. So the instruction should have been given under Negrete Gonzalez.

[00:11:36] Speaker 02:
His presence was admitted, obviously.

[00:11:38] Speaker 01:
Yes.

[00:11:39] Speaker 01:
And I think the instruction – one of the reasons I think the instruction is especially important, and it's not captured anywhere else, is it talks about – it has – there are a few important lines, but one is particularly important. It says – The defendant must be a participant and not merely a knowing spectator, a knowing spectator.

[00:12:00] Speaker 03:
And why isn't that captured by the elements of the crimes he was convicted of? How could you find the elements without finding more than just presence?

[00:12:07] Speaker 01:
The drug crime he was convicted of was a conspiracy. And I think jurors who aren't carefully instructed in this area because of guilt by association sort of – thoughts that we all have naturally as humans could assume, well, if you're there and you're watching what they're doing and they're carrying on this activity and you're there, you're a knowing spectator, you're tacitly part of that agreement. And that's why I think it's so important to give that instruction that even a knowing spectator, even if you know what's going on, you're standing there, you're watching, you know what they're doing, that that's just not enough to say that they're part of the agreement.

[00:12:41] Speaker 02:
The charge was knowing and intentionally. Isn't that what the jury was instructed? that what he was doing was knowing and intentional, not just present.

[00:12:50] Speaker 01:
I believe they were given a conspiracy, a standard conspiracy instruction. I don't recall if the language was specifically knowing and intentional. Obviously, they say you have to make an agreement, but again, that's my point, is jurors might conclude... Something unlawful, knowingly and intentionally. Jurors might conclude, though, that there's a task in agreement if you are a knowing spectator, and that's why I think it's... Because what the jury was instructed...

[00:13:14] Speaker 02:
Hopefully the jury, and we assume that jurors, will follow the court's instruction.

[00:13:21] Speaker 01:
Well, that's true, but there are certain contexts in which we give specific instructions because there is a risk that the jurors will convict on improper bases.

[00:13:32] Speaker 01:
And I think that's a good segue to the second component of the defense. which was undermined.

[00:13:38] Speaker 00:
Well, just to follow up on that, I mean, the conspiracy instruction included a person does not become a conspirator merely by associating with one or more persons who are conspirators.

[00:13:49] Speaker 00:
So that's not quite merely by being present with them, but it's pretty close to that, isn't it?

[00:13:55] Speaker 01:
Well, I think it's not... I would agree with your honor. It's not like being present with them. It's also not like being a knowing spectator, being there when they're engaged in this activity, which I think there's a real risk that a jury in that context could find that sufficient to imply, to say there's tacitly an agreement to be involved in this. And I think if Negrete Gonzalez, you reverse, the court reversed because of the failure to give the instruction, I think in the context here and the risk presented here, that the instruction was at least as warranted as in that case.

[00:14:29] Speaker 01:
Switching to the undermining MELCOM, and I may only get to one part of this argument, not to the evidentiary error, but I'm going to start with the jury instruction because the court's model jury instruction on this refers to four special circumstances and indicates by its use of plural that if any of those are, if multiple are present, they should be instructed on. And the parties jointly proposed that the court instruct on the benefits special circumstance and the pleaded guilty special circumstance.

[00:15:02] Speaker 01:
Both sides agreed that should be instructed on. The judge didn't give the benefits portion and said, well, in essence, that's cooperated by the pleaded guilty. It's covered by the pleaded guilty instruction. But it's not. It's not at all. And this court in Halbert has recognized, as a matter of fact, there is hearing about cooperators pleading guilty. They might think it's more likely that they're telling the truth because they took responsibility for what they did and they've admitted it. And if they pleaded guilty, they must have knowledge as to what was going on. Actually, the pleaded guilty factor is a negative one.

[00:15:33] Speaker 03:
Well, he told them to view the witnesses with greater caution. Because they pleaded guilty, not because... But I'm saying it's hard to say how that instruction makes it more likely they believe them when the judge is saying view them with greater caution.

[00:15:46] Speaker 01:
Well, what I'm saying is not that he... I agree with that. They said view them with greater caution. But there's a real distinction between someone getting benefits and someone pleading guilty. Someone getting benefits is... I mean, I've been practicing defense law. I've tried about 50 cases in federal court. I've argued a bunch of them. Someone getting benefits is way more serious to me. I would way rather have that instruction for a jury than I would the pleaded guilty thing. I don't even really know the pleaded guilty thing much benefits my clients at all. I'd give it away in a heartbeat for the benefits instruction.

[00:16:18] Speaker 02:
You have the judge telling the jury to treat their testimony with caution. You have a vigorous cross-examination by defense counsel. You have arguments at summation that go directly to the major benefit that the witness testified to and counsel is trying to pound on before the jury, which is that they are hoping that the judge, on the basis of the testimony that they gave and on the recommendation from the prosecutor, will sentence under the mandatory minima.

[00:16:58] Speaker 01:
Well, this is my answer to that. Number one, this court's case law says if the witness is important, the instruction should be given. This witness was clearly important. Instruction should have been given under this court's case law.

[00:17:10] Speaker 01:
But I think there's another.

[00:17:11] Speaker 03:
Is there any case law that says the instruction needs to be given if it's not clear that a benefit will be given? Because I couldn't find one.

[00:17:21] Speaker 01:
Well, the thing is, if you're going to buy into that, you're really allowing the government to kind of hoodwink the whole system and say, well, we're not sure if we're going to give a benefit. It's only if he tells the truth. Well, who decides if they tell the truth? They decide if he tells the truth. In Washington v. Texas, the Supreme Court said that's the worst possible situation if they're awaiting their benefit, if they have to please to get their benefit. And furthermore, defense counsel, in light of that, asked that the judge modify the instruction to take into account They receive benefits or they will receive benefits to cover exactly that sort of thing.

[00:17:54] Speaker 01:
I mean, that's the dynamic.

[00:17:55] Speaker 03:
Shouldn't it have said might, though? I mean, it seems like the issue was might receive benefits.

[00:18:00] Speaker 01:
I don't recall the exact language she used, but that's the worst dynamic.

[00:18:04] Speaker 02:
That's the only thing that could be promised is might because the judge retains the power at the time of sentence.

[00:18:11] Speaker 01:
Well, yes, the government makes a sentencing recommendation. My experience, and it's not a short one, and I've talked to many colleagues about this, is those cooperation recommendations are pretty routinely followed. And the defendants know it, and they know that's what they're playing for. There's no doubt about it. But there's one other thing I'd like to say about that instruction that I think is very important. If it's not given to the jurors, what the jurors are left to think is – they might think, well, geez, I don't really – I don't like this, that they're giving this person potential benefits or they've given them benefits.

[00:18:42] Speaker 01:
I don't like it. But I guess that's just the way they do business. The court does business. And if that's allowed, then that's allowed. And so I shouldn't discount it at all. I should consider it just like any other evidence. And that is not the law. The law is that that stuff is dangerous and the jury should be told it's dangerous. And the judge said view their testimony with caution. He didn't say view it with caution because they're given benefits, which this court's case law, again, requires.

[00:19:08] Speaker 01:
And that is to think that that is just okay, that the courts don't look skeptically on it, the jurors don't look skeptically on it. is a real risk and it's one that should be protected against. And there's no, there's just no reason not to tell the jurors that we allow this to go on, but it is a corrupting influence and no one should kid themselves about that. It is a corrupting influence. They know what they have to say. You saw Mr. Sabat. You saw Mr. Dave, any time for rebuttal? Cause you're running out. Yes. But you saw Mr. Melcom's testimony change over time because he knew what he had to deliver. It's a corrupting influence and there's no reason the jurors that shouldn't be highlighted for the jurors.

[00:19:42] Speaker 01:
I'm sure it was highlighted by counsel.

[00:19:44] Speaker 02:
No,

[00:19:46] Speaker 01:
I'm sure she argued it in closing. It's different than a jury instruction. Bernard, this court's case law says that as well.

[00:19:55] Speaker 03:
Let's hear from the government.

[00:20:04] Speaker 04:
Good morning. May it please the court. My name is Alexandra Michael, and I'm here on behalf of the United States.

[00:20:11] Speaker 04:
More than most cases, this appeal asks the court to step into the district court's shoes and substitute its discretion for that of the trial courts. But the trial court is the one that lived this case. It's the one that saw the testimony. It made judgment calls based on evidence and testimony it saw. This court should appropriately grant deference to those decisions, as well as to the jury's verdict of guilty on all counts.

[00:20:36] Speaker 04:
Now I was going to begin with the first point that defense counsel brought up, which goes to the district court that properly limited the testimony of Gvorgan and also excluded the summary chart. This is reviewed for an abuse of discretion by the district court, and the district court did make proper findings and make the correct conclusion. The defense wanted to enter into evidence a summary chart created by a paralegal of all 954 videos. And as the court has seen, these videos were captured by a search warrant.

[00:21:10] Speaker 04:
And only portions of those videos were seized by the government to be used, inconsistent, seized by the special agent in this case. to be used as evidence in this case. So what we're talking about are videos that were not seized pursuant to that search warrant that the defense counsel requested, and then they showed up the day before trial started with a summary chart that was about 31 pages long. Now, in terms of a summary chart under Rule 1006, the underlying portion of that summary chart needs to be admissible. And that was really the main issue that the government was bringing up, that these were simply not relevant.

[00:21:43] Speaker 04:
If you looked over that 31 pages it talked about at some point, No activity. It would say someone was power washing the driveway. Someone was playing with a dog. There was pages upon pages of evidence that was simply not relevant at all to what was going to be presented at trial.

[00:21:59] Speaker 04:
Now, as counsel also brought up in terms of that When it came down to the summary chart, another part of Rule 1006 is that the proponent must be given the underlying documents and have a reasonable amount of time to actually review them. Now, we only got the summary chart about a day before trial had started, and I believe that the witness testified it took her about two weeks to review all these videos. So additionally, the government argued the fact that we did not have time to go over all of these videos. We did not have time to make sure that they were actually correct summaries of the evidence in there.

[00:22:33] Speaker 04:
So that was another issue that the government had.

[00:22:35] Speaker 03:
I'm not sure I totally understand the difference between the search warrant ones and the ones that weren't the search warrant ones. I think the other side says that the delay was your fault. Can you explain what that piece of this is about?

[00:22:45] Speaker 04:
Yes, Your Honor. So in terms, there was a search warrant that was obtained for Arlo videos because that was the subscription or the company that was giving the video ability to be done. So there was a search warrant for all of those videos. Now, which is standard practice as a part of a search warrant in the Central District of California, is there is a scope to that search warrant. So when it's reviewed by law enforcement, they ask for all of it, and then they're meant to scope and look for evidence that's specifically relevant to their investigation. And that's actually usually listed out as to what is permitted to be seized.

[00:23:18] Speaker 04:
Because you're not just going to take everything.

[00:23:20] Speaker 03:
But you had the other videos. So is the idea you took the whole camera, but you were only supposed to look at some of the videos? I don't really understand.

[00:23:27] Speaker 04:
Usually we'll take Everything because of the type of evidence it is so I can compare it maybe to doing a search warrant in a house in a house You can go in they can the agents know what they're looking for So they can specifically go in and take what they need and then they leave everything else unfortunately when you request evidence from some of these companies they will not do that segregation for you and So it has to all be passed over to the government or to the agent, and then they have to actually do that.

[00:23:54] Speaker 02:
Do these videos that are on the chart start with the government and was then produced under Rule 16 or Giglio to the defense? Or are these videos that the defense procured and made available to the government?

[00:24:10] Speaker 04:
So if I can just explain for a moment. So the government seizes the videos that they believe are part of the search warrant. And then the ones that they don't, they're sort of sealed off. And they're set aside because those are not considered consistent with what is permitted to be seized under the search warrant. Because of the specific dates or something? Just because it's not considered relevant to the investigation.

[00:24:30] Speaker 02:
Somebody power washing the driveway.

[00:24:32] Speaker 04:
Again, this can happen with a cell phone as well. You might get the whole cell phone, but you only see some of it, and then you leave the rest. And usually, the agent will keep that as the original. So if there's ever an issue, they can go back to it. But a lot of times, the government actually doesn't get that because we don't want nor do we believe we are entitled to that evidence. So we had the 79 videos that were turned over to defense. We litigated these extra videos. Defense did a motion to compel. We opposed it, saying that we weren't in a position and they weren't in our possession. Ultimately, we determined that Malcolm, who was the subscriber to this company, could give consent to get them.

[00:25:09] Speaker 04:
So then the whole set was provided to defense counsel. But that happened close to trial. I believe it was mid-November, so about a month before trial, that was resolved. And so they had that time. So they had the whole videos. Meanwhile, the government's not looking at those videos because we're not planning to use those because they've already been determined to be not relevant to the investigation. So we're focusing on prepping for trial. Defense has all the videos, and then clearly they're having their witness go over them, make a summary chart, but they show up with that summary chart the day before trial.

[00:25:40] Speaker 04:
Answering your question in terms of why there's kind of this separate portion of them, that was the explanation for that. And we had not had time to go back and review them. And I believe the court brought up the fact that the special agent said he did review them all. So any question about other videos would have been more appropriately handled by him. Also, had we had that summary chart earlier, we could have asked him to go back and sort of check what the summary chart was in relation to that witness. And then we might have been able to further litigate that issue.

[00:26:12] Speaker 03:
And the defense argues that we can't really tell what the district court's reasons were. Do you think we can tell? I do think we can tell, Your Honor.

[00:26:20] Speaker 04:
I just may have one moment. The district court ruling.

[00:26:26] Speaker 04:
I believe had an issue with the relevance, had an issue with the type of testimony, opinion testimony, also had an issue with sort of verifying what was in those. And these are at 4ER712, where the court said picking anyone off the street that just reviews 100 videos and say they can testify as what they purport to say, he was struggling with that.

[00:26:49] Speaker 04:
4ER715, show videos to show what you would characterize as innocent testimony. I don't know because I don't have the exhibit, so the court didn't even have the exhibit to be able to look at it when this was being argued to the court. The court also said at 4ER 716, you can pick 20 or so to counterbalance the government's argument. And later he said, I'm not having the witness talk about their description of McGrath entering the gate holding a purse or holding an Apple iPad. McGrath on the front lawn. Who cares about all of that? I mean, I don't see what the relevance is. Also at 4ER 873, he said, I would have asked the agent.

[00:27:23] Speaker 04:
So I do think it's very clear from the district court's position, and I will also argue to your honors that this was argued at different points of the litigation of the trial. This was a motion eliminate that was brought sort of late, but we argued it before we started. And then in the middle of testimony, I believe defense counsel was trying to use the summary chart to refresh the recollection of the witness, and government counsel was concerned they were going to start to testify to something that had been deemed inadmissible by the court, so we went sidebar again and sort of rehashed these arguments.

[00:27:54] Speaker 04:
So the court had multiple opportunities to consider these arguments, and there is quite a bit in the record as to what his concerns were and to how he thought it was inadmissible evidence.

[00:28:07] Speaker 02:
The chart also had the sense impressions of the paralegal as to what was on each of the videos.

[00:28:15] Speaker 04:
Yes, Your Honor.

[00:28:17] Speaker 04:
There was a relevant activity. There was a lack of foundation. There were descriptions like Malcolm's father and Malcolm's parents, but there had been no foundation laid as to how she was able to make those identifications. They were also subjective and speculative. She would describe things as presumably in brackets, what appears to me Her activity inside the garage is unknown, but the sound of the use of duct tape is heard in the recording. That's at 6ER1109. Again, possibly Malcolm's parents. There was just too much speculation in this for it to be deemed an appropriate summary chart to be admitted for that purpose.

[00:28:56] Speaker 04:
And in terms of the testimony, I believe Your Honor has asked questions to counsel about that. I think it's fair to say her testimony was not excluded. It was just limited. And I do believe what the court did in essence was actually beneficial to the defense. The court gave the defense the ability to put in 20 videos.

[00:29:12] Speaker 02:
Yes, they allowed to put in 20 videos of John Dillinger walking past the bank and not robbing it.

[00:29:19] Speaker 04:
They were permitted to do that. They chose to play, I believe it was at least five and have the witness testify to them. And I think the most important evidence was that this witness got to testify that she watched all of the videos. And in none of those videos was the defendant seen wearing gloves or was the defendant seen handling a parcel. And that is what defense counsel argued in closing. And that really almost was more effective and efficient than her going through and giving some different numbers here and there. That was the issue they were going to make. So I would argue to your honors that whether this witness would have said McGrath wore gloves 20, 40, 60 times, that simply doesn't matter.

[00:29:56] Speaker 04:
What matters for their argument and their defense was that the defendant was not seen Wearing gloves or not seen handling parcels and they did capitalize on that in closing argument So I don't believe the district courts Decision harmed them in any way because they were allowed to put forth their defense as as they wanted to and as they needed to Know if I think about this instruction about the viewing the witnesses with caution.

[00:30:22] Speaker 03:
Yes, so I I have to admit that I don't have a lot of experience with criminal trials in the trial court. So I'm just wondering how this usually works.

[00:30:32] Speaker 03:
It seems like reading the text of the model instruction, it anticipates that someone would know that the benefit is going to be given and that that wasn't true here because it hadn't been determined yet.

[00:30:42] Speaker 03:
But is it usually the case that it hasn't been determined yet? I'm trying to figure out how this model instruction usually works. Can you help me with that?

[00:30:49] Speaker 04:
Yes, Your Honor. I really think it's on a case-by-case basis. I would say that, yes, when you're dealing with a cooperator who's entered into a cooperator plea agreement and a cooperation agreement, that it is fair to say that they will say they have not received any benefit yet or any promises, but that they do hope that there may be a lenient sentence.

[00:31:07] Speaker 03:
So should the model instruction be different? I mean, the model instruction seems to say, sorry, what is it I have? It's more definite than that. So I thought the court was correct to be struggling with, well, it's not definite here, but why is it worded in this definite way? It's kind of odd.

[00:31:22] Speaker 04:
I'm not sure you're on. I know it says received benefits, compensation, favored treatment from the government in connection with this case.

[00:31:27] Speaker 03:
Received. It's much more definite.

[00:31:29] Speaker 04:
Yes, Your Honor.

[00:31:29] Speaker 03:
But you think it usually gets modified to be might receive?

[00:31:34] Speaker 04:
I think we were proposing that, but I don't think we felt that that was an accurate instruction. It's not really an instruction at all. It's sort of you're saying maybe this will happen. I think the struggle that you can see the court and the parties were having was when we started to come up with what was the benefit. And the benefit that we were describing were the benefits that Malcolm received through his plea agreement. It was the dropping of the 1028 Big A. It was the fact that if he received any sort of revocation sentence that it would run consecutively. And it was also the acceptance of responsibility.

[00:32:04] Speaker 03:
I think the instruction, though, is intended to be about benefits for cooperating by testifying in the case at hand, in the trial at hand. And that hadn't happened yet. It might happen in the future, but it hadn't happened yet. But I guess my original question was trying to get at...

[00:32:20] Speaker 03:
Am I right that this instruction is usually about cooperator testimony in the trial at hand? And if so, is it almost always the case that we don't know yet about the benefits?

[00:32:30] Speaker 04:
And I'm not sure the answer to that question, Your Honor. I know that I have not seen it like that before. That doesn't mean it doesn't happen. It also doesn't mean that it couldn't be fashioned in a more precise way, perhaps, to say benefits in relation to a plea agreement or in relation to a cooperation agreement or some other language. I think there might be a way it could be fashioned to be more specific to what the testimony was.

[00:32:55] Speaker 00:
But he didn't get any of that here. I mean, he didn't get... might receive benefits or an instruction about, you know, might receive benefits. He didn't get an instruction about the plea agreement.

[00:33:07] Speaker 00:
All he got was an instruction about the fact that they had pleaded guilty, right?

[00:33:12] Speaker 04:
That is true. That is a section he got. I would argue to your honor that because the only information the jury received in relation to pleading guilty was in relation to a plea agreement, and it was very extensive, I believe that the jury would understand it or take it that way because that was the majority of his testimony. I'm not sure that – I don't think a jury would necessarily see the difference between just pleading guilty versus the plea agreement. I feel as though it was all presented in the same fashion, and that's what it was mainly –

[00:33:41] Speaker 02:
The plea agreement was the benefit.

[00:33:44] Speaker 04:
Yes. Well, the benefits in the plea agreement, yes, that was the benefit.

[00:33:47] Speaker 02:
That was the benefit. And there was a caution that was attached to that benefit.

[00:33:52] Speaker 04:
The second portion where it did say to treat his testimony with caution, there were also additional, not specifically cautionary instructions given, but additional instructions given that because of his prior convictions – His credibility was to be looked upon more skeptically. I'm not using exact verbiage for that.

[00:34:10] Speaker 00:
Do you think it would have been – is there some – is there a good reason not to give an instruction that mentioned benefits?

[00:34:19] Speaker 00:
Wouldn't it have been better to do that here?

[00:34:22] Speaker 04:
I think when we were going over the reasoning, we were really struggling with what qualified as a benefit. And I think ultimately at that time, we determined what had been testified to didn't fit into how the model instruction had it.

[00:34:36] Speaker 03:
But you did propose a different version, right? You were willing to have him get some other version of it, am I right?

[00:34:42] Speaker 04:
When the... Parties submitted their proposed jury instructions in the beginning. Usually we submit to the court, here are the instructions we believe are going to apply in this case. And I would say it's fair to say we're usually over-inclusive, and we did include both the benefits section and the plea agreement section. And that's why when we went to our final jury instruction conference, that's why we were talking about it, because that's when we were trying to figure out, does this section really apply? Is that what the evidence and testimony said? Does it make sense? Is it otherwise covered, which I think the court talked about a lot, that he believed that the instruction that he agreed upon, he believed that it gave the jury what they needed in terms of Malcolm was getting a plea agreement and he was cooperating, and that's why you should take his testimony with greater caution.

[00:35:27] Speaker 02:
In the Central District, that's something that's jointly submitted by the government and the defense or separately?

[00:35:34] Speaker 04:
It is dependent on the judge, Your Honor. Some judges will request... Both parties submit their own. Some will request that they submit them together. It's judge-specific.

[00:35:46] Speaker 04:
And in this case? And in this case, the counsels we conferred, and we came up with a list that we agreed would potentially apply. And then separately, there was contested jury instructions, which I believe was also part of the record, where the government might say this one will apply, and then the defense would say no, and they would have to give their reason. So it's just meant to streamline the whole process.

[00:36:06] Speaker 02:
Do you do it by reference to a pattern instruction, or do you actually restate the proposed instruction itself?

[00:36:14] Speaker 04:
We use, I'd say, the pattern instruction if we're agreeing upon it, but there may be cases where the parties will agree upon something a little different. And then when we're doing each one of our submissions... It can be either or. Sometimes it's a pattern. Sometimes it's something newer. I think this case, because we had some newer issues with Bitcoin, there was some different verbiage that was proposed that wasn't even necessarily covered in a pattern. But we found other cases and other examples to propose to the court.

[00:36:43] Speaker 00:
I'm looking at the instruction and just trying to figure out what the jury would make of it. Maybe you can help me with that. So it's four sentences, right? The first is just says that Malcolm and Sabahi pleaded guilty. Then the guilty plea is not evidence against the defendant. Fine.

[00:37:03] Speaker 00:
Then for this reason in evaluating the testimony you should consider the extent to which testimony may have been influenced by this factor. I don't know why testimony would be influenced by the fact that somebody just by the fact that someone had pleaded guilty without reference to anything else. And then in addition you should examine the testimony with greater caution. And I don't know why you would do that because the instruction hasn't really suggested any reason that that makes sense. So what's the jury supposed to do with that?

[00:37:35] Speaker 04:
Well, I believe this is where I would go back to the fact that, again, the jury has heard from opening to direct to cross and closing. all the fact that Malcolm has pleaded guilty and he is cooperating. That's sort of all the information that was one of the biggest points that defense counsel made. So I think that when you combine the evidence on the record and the testimony that was given, it's clear that when we're saying pleaded guilty, he pleaded guilty, he entered into a plea agreement, and he's also cooperating. I understand that... Like a harmlessness argument. Yes, Your Honor, it is. And there's also, as I had mentioned, there's the other two jury instructions that were given as well, that you have heard evidence that Rainy Malcolm has suffered felony convictions.

[00:38:14] Speaker 04:
You may consider this evidence in deciding whether or not to believe the witness and how much weight to give that testimony. And then along with the witness credibility, where there are those portions that talk about... you can look at the interest in the outcome of this case, if this witness has any interest in the outcome of this case.

[00:38:29] Speaker 03:
So I guess going back to my earlier question, can you give me any hypothetical of how this model instruction would be used correctly so it would really say the benefit was already received and that's what the jury should take as caution? Is there a situation where that happens?

[00:38:49] Speaker 04:
Again, Your Honor, it's hard for me to say. It's a really tough question. I think, again, you could see the parties and the court struggling with this.

[00:38:59] Speaker 03:
Yeah, I mean, I see the struggle. I understand the struggle given the received past tense. But I guess I'm asking because we could write an opinion that says this model instruction has caused a lot of confusion and should be fixed. And it seems like maybe we should do that.

[00:39:12] Speaker 02:
But you could have a situation where someone has already been sentenced.

[00:39:16] Speaker 02:
and now it's coming back and got a benefit at the time of sentence and testifying pursuant with another promise under Rule 35 in a separate case and would have already received a benefit based on the prior cooperation with the government.

[00:39:32] Speaker 04:
I think the term benefit is really tough.

[00:39:37] Speaker 04:
Looking back now, especially with the facts of this case, perhaps something that referred to a plea agreement perhaps something that referred to a cooperation agreement.

[00:39:48] Speaker 03:
It really should be the cooperation agreement, though, right? Because it's about being skeptical of the testimony you're hearing right now. So even a benefit in a different case wouldn't be as powerful. It seems like this instruction is supposed to be getting at that, but it's worded badly.

[00:40:02] Speaker 04:
Right, and there are, for this case, for this example, obviously there were some benefits with the plea agreement, and then again the cooperation agreement is the potential anticipation, but still very clear with the testimony that he hasn't promised anything. And we did go into testimony that... Not only was he cooperating in this case, but he was cooperating in another case. So again, the jury got to hear all of it. But those are the only other two words or wording that I can think of that could have perhaps clarified it more so and would be consistent with what came forth in this case.

[00:40:34] Speaker 03:
Thank you. Thank you.

[00:40:37] Speaker 03:
Let's put a minute on the clock for rebuttal.

[00:40:41] Speaker 01:
The model instruction stinks, and it's not unintended. It's because it allows the prosecutors to muddy the water, and they get up and say, under the agreement, his only obligation is to tell the truth. And so there's no benefit here. But the reality is they prep him. He knows what he's got to say.

[00:40:57] Speaker 03:
Did they say that here?

[00:40:58] Speaker 01:
What's that?

[00:40:59] Speaker 03:
Did the prosecution get up and say that here?

[00:41:01] Speaker 01:
That they prepped him?

[00:41:02] Speaker 03:
No, that. He's not getting a benefit.

[00:41:04] Speaker 01:
I believe they did. They always do.

[00:41:05] Speaker 03:
They just say his only obligation is to anything in the record that says that he wasn't getting any. He wasn't even possibly getting any benefit for the testimony.

[00:41:12] Speaker 01:
I can't point to the record, but they always say his only obligation on the plea agreement is to tell the truth. And the reality is he knows he's got to sing the right song. And if he does, they'll make the right sentencing recommendation. And very likely the judge will follow it. Everyone knows it. It's very corrupt. I can't get judges most of the time to give the model instruction, which stinks. I try to modify it and make it real clear what's going on. They certainly aren't going to. They don't give that. I mean, this is a real problem. Imagine if I paid witness.

[00:41:36] Speaker 03:
We write an opinion that says this model instruction should be clarified to instead of say received, should say might receive.

[00:41:43] Speaker 01:
I think it should be much stronger. It's a real threat to the truth-seeking process, which is going on here, and they know what they're doing with it. They're muddying the waters so the jurors can't understand.

[00:41:52] Speaker 03:
Regarding the timing thing of the – Sorry, you're out of time, but could you tell me what you think the model instruction could say?

[00:41:58] Speaker 01:
I think it could say something to the effect of – and what I've proposed in the past is the government has agreed to make a sentencing recommendation – for the defendant based on his testimony if they approve of his testimony after the fact, and they will submit that sentencing recommendation to the judge. So the defendant obviously has an obligation to testify in a way that pleases the prosecution.

[00:42:22] Speaker 01:
I would probably make a couple drafts of that and make it a little more clear. If I may just say one other thing regarding the video evidence. I covered extensively in the opening brief over five pages, 26 to 30, the timing, and why the government made that whole problem of the timing itself. The government – and it's answering brief 51, note 10, basically said – I think we read your arguments in your brief, so thank you very much.

[00:42:44] Speaker 03:
You're out of time. Thank you, both sides, for the helpful arguments. This case is submitted, and we're adjourned for the day.