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

[00:00:02] Speaker 00:
Good morning, Miles Pope for Eduardo Valencia, and I'll try to reserve two minutes for rebuttal.

[00:00:08] Speaker 00:
The district court's decision to, quote, roll the dice on Mr. Valencia's Fifth Amendment rights, deliberately disregarding this court's published decision in United States versus Bay and ordering Mr. Valencia to testify as a condition of displaying his hand tattoos,

[00:00:24] Speaker 00:
created a cascade of serious errors that destroyed my client's chances at a fair trial.

[00:00:30] Speaker 03:
Does our analysis here start and end with Bay?

[00:00:35] Speaker 03:
Yes.

[00:00:37] Speaker 03:
So that's it.

[00:00:38] Speaker 03:
Nothing else.

[00:00:39] Speaker 03:
Nothing else needed to have been looked at except for that case.

[00:00:48] Speaker 00:
I mean, I've raised a couple of different errors below in my briefing, but my view basically is that this court's decision in Bay is very clear.

[00:00:58] Speaker 00:
It says that a defendant who wishes to display his hand tattoos can display those tattoos.

[00:01:04] Speaker 00:
It's a hand tattoo case without taking the stand.

[00:01:08] Speaker 01:
Counsel, let's just assume for a moment that we agree with you that there was a constitutional error based on Bay, and that error was not harmless.

[00:01:15] Speaker 01:
What is the appropriate remedy?

[00:01:26] Speaker 01:
not only what you think is the right remedy, but what support you have for that.

[00:01:30] Speaker 00:
Yeah, absolutely.

[00:01:32] Speaker 00:
So first, I would just acknowledge, Bay's discussion of the correct remedy is Bay sort of directed a limited remand, a remand to determine basically could Mr. Bay establish foundation to display his hand tattoos.

[00:01:45] Speaker 00:
It is true that I have asked this court not to simply limit it to that particular remedy in this case.

[00:01:50] Speaker 00:
The reason for that is because, in this case, the Bay error led to the motion to reopen, which permitted the government to present evidence that it cast as showing that my client had perjured himself.

[00:02:04] Speaker 00:
And that, in turn, was a separate error that harmed my view.

[00:02:09] Speaker 01:
So essentially, what you're arguing is that in Bay, the ultimate decision was for the defendant not to take the stand.

[00:02:16] Speaker 01:
So there it wasn't.

[00:02:19] Speaker 01:
this is factually distinguishable in the sense of whether or not, because your client did take the stand, that's where the facts depart such that a limited remand is no longer the appropriate remedy.

[00:02:29] Speaker 00:
That's exactly right, yes.

[00:02:30] Speaker 00:
It's that in Bay, if the limited remand had led to the court saying, you know, you can't present your hand tattoos, you cannot lay foundation, that'd be the end of the matter, and affirming would be appropriate.

[00:02:42] Speaker 00:
In this case, a limited remand, even if the court says that, we still have the separate error that... Do you have any authority to support

[00:02:48] Speaker 01:
this argument or this position that you're taking.

[00:02:50] Speaker 01:
I understand that you're distinguishing your facts from Bay, but is there any other authority that we can look to to determine what is the appropriate disposition in this case?

[00:03:02] Speaker 00:
First, to answer your question, to sort of own the fact that I don't have anything that's directly on point, where I can say that's exactly the remedy that this court has given.

[00:03:09] Speaker 00:
What I would refer to instead is just sort of general constitutional harmless error analysis.

[00:03:14] Speaker 00:
It remains the case, I think my position would be, that regardless of what happens on the remand, that my client, that Mr. Valencia, was harmed, was prejudiced by the court's Bay error and the consequences.

[00:03:28] Speaker 00:
I would simply refer to the Constitutional Harmless Error Analysis itself.

[00:03:39] Speaker 00:
I will tell the court, candidly right now, that given the court's questions and given where the court is, it might make the most sense, unless, again, the court has questions about any other issues, for me to reserve the rest of my time simply because it seems as though maybe the issue is going to be the scope of remand, and I don't want to just hammer on unnecessarily.

[00:03:58] Speaker 00:
So unless the court has questions, I will reserve the rest of my time.

[00:04:02] Speaker 04:
Thank you, counsel.

[00:04:03] Speaker 00:
Thank you so much.

[00:04:11] Speaker 02:
May it please the court, Ian Gerstle, United States.

[00:04:14] Speaker 02:
I was not trial counsel below.

[00:04:16] Speaker 02:
This court should affirm the district court's rulings because the district court did not commit reversible error in requiring defendant to testify in order to show his hand tattoos because the timing of when he got those tattoos was still in question.

[00:04:32] Speaker 02:
Secondly, the district court did not commit procedural error, reversible error, by granting the government's motion to reopen.

[00:04:40] Speaker 02:
In regard to the hand tattoos, the district court did not commit error.

[00:04:46] Speaker 02:
If the court looks closely at Bay, the fundamental issue there was that the court didn't allow the defendant to show his hands at all.

[00:04:55] Speaker 02:
The second half of Bay is whether or not those hand tattoos in Bay would have been relevant.

[00:05:02] Speaker 02:
And in that case, that was a witness identification case where

[00:05:05] Speaker 02:
On count one, the bank teller testified that she had seen the defendant's hands and that became relevant under 443.

[00:05:14] Speaker 02:
And the circuit in that case only reversed on count one.

[00:05:19] Speaker 02:
On the other counts, it was not relevant and the court

[00:05:23] Speaker 02:
remanded because there was no foundation.

[00:05:25] Speaker 02:
And the district court here, although it may not have articulated it perfectly, the government did make a relevance objection as to the timing at ER 242 to ER 242.

[00:05:38] Speaker 02:
where the government objected when the defendant was trying to cross-examine a witness about the tattoo saying, the government saying whether or not he had tattoos in 2024 at the time of the trial is irrelevant to the fact of whether or not he may have had them or not at the time of the robbery four years earlier.

[00:05:58] Speaker 01:
What do you make of the record, and I understand you weren't trial counsel, but it seems to me from reading the record that the trial attorney

[00:06:07] Speaker 01:
for the government cited Bay and said that if Bay were to take the stand, he can't, under the Ninth Circuit case law, wouldn't be able to ask him questions, but that he could, in fact, take the stand just to show his hand.

[00:06:23] Speaker 01:
So the government's own lawyer is citing Bay, and the district court ignored that.

[00:06:33] Speaker 01:
inconsistent for your position to be that at trial we actually offer the court bae and say that the defendant can take the stand without having being questioned but now arguing that that uh wouldn't have been applicable that they wasn't relevant well bae was in the heat of the moment i believe the trial prosecutor said he got an email about it i don't think the court or the party said nobody had anticipated this issue so nobody had really

[00:06:58] Speaker 02:
read that maybe other than the statement that was in the first half of Bay that merely showing.

[00:07:04] Speaker 01:
If you are 366, this is the quoted language, he can just show his tattoos and I can't question him when the government brought up United States v. Bay to the district court's attention.

[00:07:18] Speaker 02:
That's what the prosecutor said.

[00:07:20] Speaker 02:
The court, the government understands that.

[00:07:23] Speaker 02:
And the government believes that was not in full analysis of Bay because neither the prosecutor, he said he hadn't read the, had time to read the case nor the court had read the case.

[00:07:36] Speaker 03:
But he knew at the moment that it was non-testimonial that that's what Bay said.

[00:07:41] Speaker 02:
Merely showing the hands.

[00:07:42] Speaker 02:
Yes.

[00:07:43] Speaker 02:
Merely showing the hands would be non-testimonial.

[00:07:46] Speaker 02:
And in terms of testifying to the date, it would be testimonial.

[00:07:54] Speaker 02:
When he had the tattoos, then it would become testimonial.

[00:07:58] Speaker 02:
And the other portion of Bay that is relevant here for these purposes is the relevance of the timing of when he had the tattoos.

[00:08:09] Speaker 02:
And that's why this court.

[00:08:09] Speaker 01:
That only became relevant because once he was forced to take the stand and answer questions, he testified about the length of time that he had the tattoos on his hands.

[00:08:18] Speaker 01:
So had the district court accepted the prosecutor's own statements about the limitations of Bay, there would have been no testimony accompanied.

[00:08:28] Speaker 01:
He wouldn't have taken the stand.

[00:08:29] Speaker 01:
He would have just showed the photo of his hands with the tattoos, which is what the defense was attempting to do in the first instance.

[00:08:37] Speaker 02:
And the court disagreed and said that, well, I think you can ask him some questions.

[00:08:44] Speaker 01:
Right.

[00:08:44] Speaker 01:
I understand that.

[00:08:44] Speaker 01:
We're here today because the court ruled the way it did.

[00:08:47] Speaker 01:
But my original question to you was, how do you square the prosecutor's own statements at trial about the limitations of Bay with the argument that you're making today, which is that Bay doesn't stand for the proposition that the defendant can

[00:09:02] Speaker 01:
show his hands without taking the stand?

[00:09:04] Speaker 02:
Because in that particular discussion on Bay that they had, they didn't discuss the relevance portion of Bay.

[00:09:10] Speaker 02:
And there is still an underlying relevance issue.

[00:09:13] Speaker 02:
And the government had previously, prior to this discussion, raised the relevance objection at ER 242.

[00:09:20] Speaker 02:
And that is the government's driving at why the district court got to where it did, because relevance was raised as the timing.

[00:09:28] Speaker 02:
And it's not relevant that you have the

[00:09:30] Speaker 02:
tattoos now to if you had them four years earlier.

[00:09:34] Speaker 02:
So the government's mentioning that that that is why the district court had the right principle in mind even though because there would have to be some foundation for him to show the tattoos and up to that point there was none because it wasn't a witness identification case nobody identified his hands.

[00:09:52] Speaker 02:
And he hadn't laid the foundation.

[00:09:54] Speaker 02:
His girlfriend had just testified.

[00:09:56] Speaker 02:
And he didn't even ask her, Anna Ramirez, did he have the tattoos?

[00:10:01] Speaker 02:
Who knows why?

[00:10:02] Speaker 02:
But he could have laid the foundation.

[00:10:04] Speaker 04:
The problem here is at that point, we already have the prosecutor and the district court agreeing that the only way he could show his tattoos was if he took the stand himself.

[00:10:13] Speaker 04:
And it was never argued.

[00:10:15] Speaker 04:
to the district order by the prosecution, well, we have an objective foundation, but he can lay the foundation in some way other than testifying himself, which is disgusting.

[00:10:24] Speaker 02:
Correct.

[00:10:25] Speaker 02:
The government's just elucidating the actual application, what Bay means, because there are two parts to Bay.

[00:10:33] Speaker 02:
The Fifth Amendment just merely showing hands and the relevance.

[00:10:38] Speaker 04:
But the government never said, we understand now.

[00:10:40] Speaker 04:
We can't force him to testify.

[00:10:42] Speaker 04:
But we still have a relevant subjection.

[00:10:44] Speaker 04:
We want the foundation to be laid in some other way.

[00:10:47] Speaker 02:
Not at that portion.

[00:10:48] Speaker 02:
Not at that point.

[00:10:49] Speaker 02:
That's correct.

[00:10:50] Speaker 02:
But the government would here note that the government didn't exploit any perceived error here.

[00:10:56] Speaker 02:
And even as the defense points out in their opening brief,

[00:11:01] Speaker 02:
The defense kind of harps on the government here because they didn't really cross the defendant.

[00:11:06] Speaker 02:
The government just asked a few very innocuous questions.

[00:11:08] Speaker 02:
But when the defendant went further than what the judge had said, just get up there, tell us your name and a couple other things so we can make sure the record clearly indicates who's testifying here.

[00:11:19] Speaker 02:
The judge never told them to testify as to the date.

[00:11:22] Speaker 02:
of when he got the tattoos.

[00:11:23] Speaker 02:
That was defendant's choice to do that.

[00:11:26] Speaker 02:
And the government didn't even cross-examine him on that.

[00:11:30] Speaker 04:
Well, I have a little trouble, because you said the whole point of why you wanted him to testify was to lay the foundation as to when he got the tattoos.

[00:11:37] Speaker 02:
Understood.

[00:11:38] Speaker 02:
There wasn't the foundation there.

[00:11:41] Speaker 02:
But the point I'm trying to make is that the government didn't cross-examine him.

[00:11:47] Speaker 02:
The government didn't go after him.

[00:11:49] Speaker 02:
The government didn't try to exploit any perceived error.

[00:11:52] Speaker 02:
in him testifying, because the court is correct saying that the prosecutor said he can just show his hands, and then when the court insisted, well, you can cross-examine him, the government really didn't do that, and that's what the defendant says.

[00:12:05] Speaker 04:
But they didn't do that after the trial.

[00:12:07] Speaker 04:
That's the whole point of the second error alleged in the opening based on impeachment.

[00:12:12] Speaker 02:
We can get there, and there's two different parts, but I have

[00:12:15] Speaker 02:
But we're dealing with two different errors that the defense is, alleged errors that the defense is raising.

[00:12:20] Speaker 04:
So you don't think if they had gotten that Facebook information at the time of trial, they wouldn't have tried to impeach him on cross?

[00:12:27] Speaker 02:
They could have very well.

[00:12:28] Speaker 02:
If he had just shown his hands without saying anything, they could have very well.

[00:12:32] Speaker 02:
The government could have just the same in its rebuttal case moved to reopen or in a rebuttal case said, here are these Facebook photos uploaded before the robbery.

[00:12:41] Speaker 04:
that show he didn't have tattoos either.

[00:12:47] Speaker 04:
The prosecutor did as the court indicated

[00:12:56] Speaker 02:
discovered Bay and then said he could testify.

[00:13:00] Speaker 02:
Sorry, show his hands.

[00:13:02] Speaker 02:
Without testifying.

[00:13:03] Speaker 01:
Without testifying.

[00:13:04] Speaker 01:
Urging the court that this case dictates the result.

[00:13:06] Speaker 02:
The prosecutor cited Bay for that and then changed course mid-trial on this.

[00:13:12] Speaker 04:
So you're saying by raising Bay the prosecutor actually

[00:13:17] Speaker 04:
backed off its position that he should be required to testify, and that it was the district court who, on its own, kept the decision.

[00:13:27] Speaker 02:
The government did everything right in this case.

[00:13:29] Speaker 02:
The government alerted the court to Bay, and the government, on the motion to reopen, alerted the court to these are the factors.

[00:13:35] Speaker 02:
In all contexts, the government did what was right.

[00:13:38] Speaker 02:
And when this perceived error of him testifying, and he testified to how long he had them, the government really kind of left it alone, is what the government would say.

[00:13:47] Speaker 02:
And that's important on harmless error analysis, because if the court finds there was constitutional error, then the party that's the beneficiary of the perceived error has to show that it's harmless beyond a reasonable doubt.

[00:13:59] Speaker 02:
And if the court, and that case is Chapman versus California, and the government would encourage the court to look at that, because the court uses, Springport uses the word the beneficiary, beneficiary of the error.

[00:14:09] Speaker 01:
Let me ask you a question about that, because the government did

[00:14:13] Speaker 01:
stress Valencia's testimony with respect to his tattoos in their closing argument.

[00:14:19] Speaker 01:
So while I agree that the government was careful not to ask any questions, because I think they were aware of the limitations of Bay when the defendant took the stand in the first instance, in closing argument, the government then relied on that testimony and arguably exploited it to their benefit.

[00:14:41] Speaker 01:
So tell me

[00:14:42] Speaker 01:
how we get to a harmless error determination when the government did, in fact, use that testimony?

[00:14:49] Speaker 02:
Well, first, the court has to look at who's the beneficiary of the perceived error.

[00:14:55] Speaker 02:
In this case, it was the defendant, because he got up there and told everyone, I had these for nine years.

[00:15:01] Speaker 02:
He benefited from that.

[00:15:02] Speaker 02:
The government didn't benefit.

[00:15:03] Speaker 02:
So if the court looks at Chapman, it talks about the beneficiary of the perceived error.

[00:15:09] Speaker 02:
The government was not the beneficiary.

[00:15:10] Speaker 02:
But the defendant didn't want to testify.

[00:15:12] Speaker 02:
And he didn't have to, no one told him to say nine years either.

[00:15:16] Speaker 03:
I guess I'm trying to understand how you get to the harmless part when the jury, it's my understanding, even requested to hear additional information about the tattoos.

[00:15:31] Speaker 03:
So they had it top of mind.

[00:15:35] Speaker 03:
And this issue was critical to their decision.

[00:15:40] Speaker 03:
Maybe.

[00:15:42] Speaker 03:
Doesn't it suggest that it was?

[00:15:44] Speaker 02:
He presented that issue to them and they considered it, so he benefited from that.

[00:15:50] Speaker 02:
In terms of harmlessness, Judge Desai, you pointed out the government kind of exploiting this in the closing.

[00:15:57] Speaker 02:
The government would submit that's exactly the opposite.

[00:15:59] Speaker 02:
What the prosecutor said is, you heard the agent testify and the defendant testify as to these tattoos, you're the determiner of credibility.

[00:16:08] Speaker 02:
The government did not say he's a liar, as the defendant says in his brief.

[00:16:12] Speaker 02:
In addition, in Chapman, the Supreme Court says, in that case, the government, in machine gun-like repetition, ad nauseum, harped on this problematic evidence was admitted.

[00:16:25] Speaker 02:
In terms of harmlessness as well, we didn't cross, really, defendant on that.

[00:16:31] Speaker 02:
We could have put on the photo in rebuttal evidence anyway, had he not testified.

[00:16:35] Speaker 02:
the government focused on closing and everywhere on its case, the DNA, the car, and the envelope.

[00:16:43] Speaker 02:
And that was overwhelming.

[00:16:44] Speaker 02:
The jury only deliberated two hours, which is also a consideration.

[00:16:48] Speaker 03:
But in those two hours, they requested to see the hand tattoos again.

[00:16:52] Speaker 02:
Yes, and that was helpful to defendant because they wanted to see about his evidence that he was presenting if it bared out on anything.

[00:17:03] Speaker 02:
Importantly here, the government even got up and said in closing, these photos are blurry.

[00:17:08] Speaker 02:
The agents said all along when the defense asked them, when the court looks at the photo of the left hand on this desk, it's blurry.

[00:17:16] Speaker 02:
You can't really make it out.

[00:17:17] Speaker 02:
That's what the agents said all along.

[00:17:18] Speaker 02:
And the government said, well, it's blurry.

[00:17:21] Speaker 02:
So this argument's not doing anything.

[00:17:24] Speaker 03:
If we disagree with you as toward the question that Judge Desai asked, what should the remedy be here?

[00:17:34] Speaker 02:
Well, the government doesn't believe there's any reversible error, but the government did put in its brief that it's the rehearing or having another hearing to determine whether or not he could lay the foundation as set forth in Bay.

[00:17:50] Speaker 01:
What do you say to the argument that your friend on the other side made, which is that just the mere fact that in Bay where the limited remand was, the relief ultimately ordered

[00:18:02] Speaker 01:
It came after a set of facts where the defendant never took the stand.

[00:18:06] Speaker 01:
And so that's just distinguishable at its core to the facts here.

[00:18:11] Speaker 01:
So we can't have the same limited remand in this case because, ultimately, Mr. Valencia took the stand, the error occurred under Bay, and so there needs to be a vacatur of the conviction.

[00:18:24] Speaker 01:
What do you say to that?

[00:18:26] Speaker 02:
Well, you're determining if it's

[00:18:29] Speaker 02:
To determine whether or not a re-trial should happen, it should be based on a hearing with new evidence.

[00:18:36] Speaker 02:
The government believes that the Bay method is the better method, if that were.

[00:18:44] Speaker 04:
So the defendant here, unlike in Bay, did actually take the stand, said I've had the tattoos for nine years.

[00:18:54] Speaker 04:
What other foundation do you think would have to be laid?

[00:18:59] Speaker 04:
What would you expect to happen on the limited remand you're suggesting is necessary?

[00:19:06] Speaker 02:
If he wants to lay other foundation by other witnesses, that's just the government's position.

[00:19:14] Speaker 02:
If he wants to do that or not, and the court can make that determination whether or not he's laid the foundation for that.

[00:19:24] Speaker 04:
Okay, well, what would happen if the foundation is laid?

[00:19:29] Speaker 02:
If he's laid the foundation, then he can show his hands.

[00:19:35] Speaker 02:
If the foundation is laid and it's relevant, if the court makes a finding that the foundation is laid and it's relevant to that point.

[00:19:50] Speaker 02:
And finally, the one point on harmlessness to the government wasn't even allowed to impeach the defendant with his prior felony conviction.

[00:19:59] Speaker 02:
The court excluded that.

[00:20:01] Speaker 02:
And finally, the defendant had already

[00:20:04] Speaker 02:
His tattoos were already visible in the courtroom and he had discussed that in front of the jury and The government would submit that the court correctly also granted the government's motion to reopen which I'm over time I can leave it at that but we haven't gotten to that point unless the court wants to hear more Thank You honors

[00:20:34] Speaker 00:
The government absolutely exploited this error in its closing argument and by moving to reopen.

[00:20:39] Speaker 00:
The motion to reopen itself, which this Court has held and other Courts recognize when you move to reopen after you close, the jury will give that evidence inordinate weight, was exploiting this error.

[00:20:51] Speaker 00:
This error absolutely was not harmless.

[00:20:54] Speaker 00:
Among other things, as the Court has noted, the error was mentioned,

[00:20:59] Speaker 00:
The government specifically did, and I will disagree strenuously with how the government on appeal characterizes the closing testimony.

[00:21:08] Speaker 00:
The government specifically did say, you know, you heard that Mr. Valencia during closing argument did not tell the truth, and you should consider that as relevant to the case overall.

[00:21:18] Speaker 01:
It wasn't... I want to just, you know, I'm sympathetic to the government's position because the prosecutor did attempt

[00:21:26] Speaker 01:
to bring to the court's attention Bay and the fact that the defendant doesn't under that case law need to take the stand and testify and could simply show his hands.

[00:21:35] Speaker 01:
And then the government didn't ask any questions on cross-examination when the defendant did offer testimony voluntarily.

[00:21:43] Speaker 01:
So what more could the government have done in this instance where the trial court is rejecting the case law of the circuit that clearly indicates what the limitations are?

[00:21:55] Speaker 01:
and then restrain themselves from asking questions on cross-examination.

[00:22:00] Speaker 01:
What more could they have done?

[00:22:02] Speaker 00:
Well, two things.

[00:22:02] Speaker 00:
First, even if I am not faulting the government in terms of predicating bad faith on the prosecutor, I agree with Mr. Gehrig's that the prosecutor, at least when it came to bringing day to the court's attention, did admirably.

[00:22:19] Speaker 00:
really think we can read from the record or infer the prosecutor's motives from the record in terms of not asking questions.

[00:22:24] Speaker 00:
It may have been to protect his case from appeal, it may not have been.

[00:22:27] Speaker 00:
Again, I'm not saying the prosecutor acted in anything but professionally and in good faith.

[00:22:32] Speaker 00:
This is ultimately an error that the court made that affects my client's constitutional rights, and that's why the court should reverse here.

[00:22:39] Speaker 00:
But I would also say that, and again,

[00:22:41] Speaker 00:
I want to be very clear, not predicating bad faith of the prosecutor.

[00:22:44] Speaker 00:
The prosecutor, during trial, made the choice to move to reopen, made the choice to present evidence.

[00:22:49] Speaker 00:
So when I said exploited the testimony, that's what I meant.

[00:22:52] Speaker 00:
Not in a bad faith way, but simply in a, he's pursuing a trial tactic, he moves to reopen, he presents evidence.

[00:22:59] Speaker 01:
What you're really talking about is whether or not the error is harmless at that point.

[00:23:02] Speaker 00:
Absolutely correct.

[00:23:03] Speaker 00:
That's exactly right.

[00:23:04] Speaker 00:
And that's why the closing argument that the prosecutor makes is relevant to harmlessness.

[00:23:07] Speaker 00:
I also want to emphasize one other thing that hasn't maybe been... I'll own it.

[00:23:12] Speaker 00:
It might have been my fault for not raising this in the briefing as well.

[00:23:15] Speaker 00:
My client lost his right to silence and the associated instruction that you were not to take my client's silence against him.

[00:23:21] Speaker 00:
as a consequence of taking the stand.

[00:23:23] Speaker 00:
So all of a sudden he takes the stand, and the jury is asking about the tattoo, but it's in considering his testimony, and considering the fact that he took the stand, because he had to, but didn't say, I didn't commit the robbery.

[00:23:33] Speaker 00:
That is hugely damaging.

[00:23:35] Speaker 00:
And this goes to the Renand issue as well, because regardless,

[00:23:38] Speaker 00:
of whether there is foundation laid to present the hand, for him to show his hands or not.

[00:23:44] Speaker 00:
That happened.

[00:23:45] Speaker 00:
The jury was able to think about this case in light of the fact that that right to silence instruction was not given.

[00:23:52] Speaker 00:
And that is harmful regardless of what happens on remand.

[00:23:57] Speaker 00:
And so I would urge this court to reverse.

[00:24:02] Speaker 00:
Thank you so much.