[00:00:02] Speaker 03:
Our next case this morning is United States versus Armenta 23-7035.

[00:00:08] Speaker 03:
Counsel, you may proceed.

[00:00:18] Speaker 02:
Good morning.

[00:00:19] Speaker 02:
Jacqueline Essar, Assistant Federal Defender from the District of Hawaii on behalf of Appellant Mr. Anthony Armenta.

[00:00:26] Speaker 02:
And I plan to reserve three minutes for rebuttal.

[00:00:31] Speaker 02:
The district court abused its discretion in refusing to grant Mr. Armenta's motion to sever trial from that of his co-defendant Ward when there were mutually exclusive defenses and he sustained substantial and unmitigated prejudice that far exceeded the government's interest in judicial economy.

[00:00:54] Speaker 02:
The defenses in this case were not merely antagonistic.

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They were mutually exclusive.

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The mutually exclusive defenses exist when the core of the defense theory of one contradicts the core of the defense theory of the other in such a manner that the acquittal of one necessitates the conviction of the other.

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And that is exactly what we had in this case.

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Ward's theory of defense was that Mr. Armenta forced him, coerced him to commit the assault.

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His violent, abusive, controlling nature was a core of their defense theory, because without it, his dress defense fails.

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Mr. Armenta's defense theory... Well, how did the Joinder prohibit him or stop him from asserting that defense?

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So, in this case, there was substantial prejudice

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by the direct attack of Mr. Ward, and that he would... Why?

[00:02:03] Speaker 05:
How?

[00:02:03] Speaker 05:
Tell me how.

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He was able to elicit, without any prior notice, because under 404B he's not a government, so he's not required, extremely inflammatory character evidence.

[00:02:18] Speaker 05:
Evidence that Mr. Armenta... But that has nothing to do with his defense, that he was forced to do what he did.

[00:02:25] Speaker 02:
Well, this is the problem when we have such antagonistic defenses, when Mr. Ward essentially became a second prosecutor in this case, because if we didn't also now defend against the accusation that he was forced to commit the assault by Mr. Armenta, he was guilty.

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So not only were we defending against the government's case, we had to defend against Mr. Ward's case, because if not, Mr. Armenta is guilty.

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That's the nature of the antagonism in this case.

[00:02:58] Speaker 05:
Well, Ward was guilty.

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And if Ward was guilty also of coercing Armenta, that is an issue that a jury could separate and make an easy decision on.

[00:03:12] Speaker 02:
Not in this case, not in this case because of the highly inflammatory character evidence that Mr. Ward, the co-defendant introduced, introduced evidence that he burned his girl, Mr. Armenta burns his girlfriend with a blowtorch all over her body and she's pregnant.

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And to corroborate this, the trial court allowed the mother of the girlfriend to get on the stand in tears

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crying how she has seen these burns on her daughter's body.

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How is a jury supposed to wipe that from their minds when they're looking at the evidence and evaluating it as it's supposed to on an independent basis for Mr. Amenta?

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And I want to make this clear because I don't think it comes clear in our briefs and I apologize for that, but there was no limiting instruction

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when that testimony came in.

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Was one requested?

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One was requested.

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We argued throughout the transcripts that there is

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There was no 401-403 analysis conducted by the judge in any way.

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The trial court was only concerned about giving Mr. Ward his fair trial and allowing him to present evidence in support of his duress defense, but he never once looked at how this evidence prejudices Mr. Armenta's right to a fair trial under the Fifth and Sixth Amendment and how you conduct any type of 401-403 analysis or

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or limited this in any way.

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The only limiting instruction as far as the evidence goes with the burning of the girlfriend's body was the general instruction given at the end of the close of evidence, jury instruction number 37, where it says evidence was introduced in the trial for limited purpose.

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We specifically asked the judge

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to specify what that act is limited and it refused to.

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And without that context, the jury has no idea what evidence it's supposed to limit in regards to evaluating the evidence independently for Mr. Amenta.

[00:05:26] Speaker 03:
Counsel, could I come back to the mutually antagonistic defense issue?

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ask you a question about it this way.

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Why couldn't the jury have found that Mr. Ward acted under duress, but also have reasonable doubt as to whether Mr. Armenta assaulted the victims?

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So if the jury were to believe that Mr. Ward acted under duress, and it's not just duress by some other person.

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We're talking about the co-defendant in trial that Mr. Armenta forced him to commit it.

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If that's true, Mr. Armenta is guilty.

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Mr. Ward can't commit duress by the hands of Mr. Armenta without him being guilty for the crime.

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So Mr. Armenta cannot be found not guilty if

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Mr. Ward is found not guilty.

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So just the nature of the defenses in this case present a situation where they're completely exclusive.

[00:06:34] Speaker 05:
Well, they were both shooting at the people.

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And if Ward made Armenta do it, Ward would still be guilty.

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And maybe Armenta wouldn't be if he was coerced.

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So that is Ward's theory of defense, that Mr. Armenta shot at the men at the river

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And then Mr. Armenta forced him to shoot at the man at the truck.

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But that was not the core defense of Mr. Armenta.

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The core defense of Mr. Armenta was that Ward acted on his own accord.

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He did not aid and abet him.

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And he committed the shooting.

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And that was also corroborated by the complainants who said that Mr. Ward shot first.

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So that's just the direct attacks that we have in this case.

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regarding the co-defendants defensive that make them mutually exclusive.

[00:07:27] Speaker 03:
Counsel, could you expand a little bit?

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You mentioned aiding and abetting.

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And I was interested in what you have to say about the prosecution's aiding and abetting theory for both defendants and how that affects the analysis.

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Well.

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I mean, they did charge aiding and abetting, didn't they?

[00:07:48] Speaker 02:
Yes.

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So the jury was instructed on aiding and abetting.

[00:07:52] Speaker 02:
Yes.

[00:07:53] Speaker 03:
How does that affect your argument?

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Well, that was their theory that Ward and Armenta came to the river together and they had this.

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They both acted.

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when they decided to shoot at the three men at the river that day.

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That was the government's theory.

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That was not our theory.

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And I think in the court's analysis, it doesn't look to the government's theory of defense in deciding whether the defenses are mutually exclusive.

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It looks to the core of defendant one and the core of defendant two.

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But if they're both charged with aiding and abetting, why wouldn't that affect the nature of their defenses?

[00:08:39] Speaker 02:
Why wouldn't it?

[00:08:41] Speaker 02:
Can I ask you to ask that in another way?

[00:08:43] Speaker 02:
I wanted to make sure I understand it.

[00:08:46] Speaker 03:
Well, if they hadn't been charged with aiding and abetting, I think I'm following your argument.

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But when you add aiding and abetting in, how does that affect your argument?

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Well, that is, again, the government's theory.

[00:09:01] Speaker 03:
Well, it may be the theory, but it was presented to the jury.

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And for all we know, the jury may have relied on that theory.

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We don't know that, do we?

[00:09:10] Speaker 03:
We don't know.

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And that's the problem with mutually exclusive defenses, too, that when they're so antagonistic that they fuse together.

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And it's left with the jury not believing either defendant and going along with the government's theory.

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By the way, is the standard on mutually antagonistic defenses that they have to be 100%

[00:09:37] Speaker 03:
mutually antagonistic or something short of that, maybe substantially antagonistic?

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So the test is whether the core of defense one contradicts the core of the defendant two in such a manner that the acquittal of one necessitates the conviction of the other.

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So there has to be a direct attack, and it has to preclude the jury from acquitting both of them.

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So it can't be just mere finger pointing or just mere antagonism.

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It's more than that.

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And I don't know if to put percentage on it, if it's, you know, a hundred percent.

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And I don't think you should be going down a rabbit hole and trying to theorize a possible ways of that.

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Maybe there is a possibility the jury could do that because you have to look at the core of the defenses in this case and how they were presented.

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and how they were presented in this case, they were mutually exclusive.

[00:10:45] Speaker 00:
Couldn't they have been just partially exclusive if the jury just believed some part of Ward's story or Ward's testimony in this case?

[00:10:56] Speaker 00:
Because he talked about both prior bad acts that you referred to, as well as some duress that he said he was under from

[00:11:05] Speaker 00:
from Mr. Armenta during the event itself.

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Could the jury have found defendant Armenta was not guilty based on his defense, and also found that defendant Ward was not guilty based on the duress offense, but only basing that off the prior bad acts, in which case there wouldn't be any aiding and abetting either?

[00:11:29] Speaker 00:
See what I'm saying?

[00:11:30] Speaker 00:
Could they have found them both not guilty even by believing part or

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of the story that Ward told.

[00:11:37] Speaker 02:
So I think that's what the government argues in its brief.

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And I had a hard time following that argument, but I think the court... That's why I'm asking.

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But I think what the government is arguing in your question is that the jury could have just looked at these

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inflammatory bad acts as why Ward acted under duress on that day, but that is not the facts.

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And again, we have to look at the core of the defense and that how it was presented and that it wasn't presented that way.

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Ward testified that he had seen Armenta do these bad acts, burn his girlfriend, threaten

[00:12:23] Speaker 02:
murder his girlfriend if he didn't do what he say.

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But then also on that day, because he had to prove that he wasn't able to leave.

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The duress caused him to not be able to leave.

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It was so strong he had to act.

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So he also had to prove, and he testified, that Mr. Armenta took a gun and pointed it at him and told him to shoot.

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So it wasn't the factual situation that the court is questioning about and the government argues.

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That's not what we had here.

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And so it's just a different situation.

[00:12:57] Speaker 00:
So in deciding whether they're mutually antagonistic in full, we have to assume that the jury would have accepted, if the jury accepted entirely Mr. Ward's testimony, are they mutually antagonistic?

[00:13:14] Speaker 02:
The test in the 10th Circuit, the case law that I know you're all aware of, it talks about going to the core defense theory presented.

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So you're looking to the core of the defense theory, not so much speculating as to could the jury have done that or that.

[00:13:35] Speaker 02:
You look to the core of the defense theory.

[00:13:40] Speaker 03:
Didn't the victims testify that Mr. Armenta shot them?

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Didn't the victims testify that Mr. Armenta shot him?

[00:13:51] Speaker 02:
So yes, so the testimony came out from the complainants, the government's case, that Mr. Ward had fired first and that Mr. Armenta then walked down from his car to the river bank and started shooting at the two men in the boat.

[00:14:14] Speaker 02:
That was the government's.

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presentation of the evidence.

[00:14:22] Speaker 02:
Again, I just want to point, just with the brief time I have, as far as prejudice versus judicial economy, this was a two-day assault trial.

[00:14:33] Speaker 03:
Well, that's what I was getting at.

[00:14:35] Speaker 03:
OK.

[00:14:35] Speaker 03:
I mean, you've got eyewitness victim testimony that Mr. Arment has shot them.

[00:14:40] Speaker 03:
So how do you get past prejudice?

[00:14:43] Speaker 02:
Again, it's the nature of the prejudice in this case.

[00:14:46] Speaker 02:
Because if you look at the case law, there is Pavetto, which this court held there was prejudice, because the co-defendant is the one who introduced criminal activity.

[00:14:56] Speaker 03:
Well, but don't you have to look at the evidence presented at the trial and making that determination?

[00:15:03] Speaker 02:
For prejudice?

[00:15:04] Speaker 02:
Yes.

[00:15:04] Speaker 02:
And there is prejudice here, because the co-defendant introduced evidence that would not have been admissible in his separate trial.

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because of the nature of the joint trial here.

[00:15:15] Speaker 02:
It's the same as Pavetto, where the code of fitting introduced criminal activity, which the 10th Circuit said it's

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This is substantial prejudice, because in the government's case, there was no record that he had a criminal activity.

[00:15:28] Speaker 02:
Same in our case.

[00:15:30] Speaker 02:
No evidence that Mr. Armenta had a prior criminal record.

[00:15:33] Speaker 02:
It was only admitted through the code defendant.

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That evidence prejudices the jury in a way where they're not able to independently evaluate, especially without a limiting instruction, the evidence just to Mr. Armenta.

[00:15:49] Speaker 03:
Thank you, counsel.

[00:15:53] Speaker 02:
And I'll reserve the remainder of my time.

[00:15:54] Speaker 02:
Thank you.

[00:16:14] Speaker 01:
May it please the court.

[00:16:15] Speaker 01:
My name is Benjamin Traster, and I represent the United States.

[00:16:19] Speaker 01:
To find that the district court aired

[00:16:21] Speaker 01:
in declining to sever the joint trial of the defendant and his co-defendant, Kevin Ward, the defendant must show that the district court abused its discretion with respect to the three-pronged test set forth in the personal decision.

[00:16:36] Speaker 01:
As this court was just discussing with counsel, that three-pronged test involves

[00:16:44] Speaker 01:
mutual antagonism, showing that the two defenses were mutually antagonistic, showing that the joint trial risked compromise of a specific trial right or risked preventing the jury from making a reliable judgment.

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And finally, even if the defendant was able to satisfy those first two prongs, the defendant would have to show that the prejudice from the joint trial outweighed judicial economy.

[00:17:15] Speaker 01:
Let me start by talking about mutual exclusivity.

[00:17:19] Speaker 01:
In this case, in the Zafiro case by the Supreme Court shows that if there are theories that the two defendants could have presented that were even unlikely not mutually exclusive, then the defendant hasn't met that burden to show that the two defenses are mutually exclusive.

[00:17:36] Speaker 01:
So to show that, take Kevin Ward's testimony and his direct examination.

[00:17:42] Speaker 01:
Towards the end of his

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direct examination, he talked about, he was asked about what he knew about the shots that were being fired.

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And what he said was he was sitting on some rocks by underneath the bridge and shots were fired and he didn't know where those shots were coming from.

[00:17:57] Speaker 01:
We can come back to the fact that that was contradicted by the three witnesses and victims who testified that Kevin Ward was right there and he fired the first shots.

[00:18:05] Speaker 01:
But that's Kevin Ward's theory.

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And when asked, he said he didn't know where those shots came from.

[00:18:10] Speaker 01:
He initially said, in colorful language, that Armenta started shooting.

[00:18:15] Speaker 01:
But he conceded that he couldn't see the boat and didn't know who was firing those shots.

[00:18:20] Speaker 01:
In the defendant's case, in his opening statement, he said shots were being fired.

[00:18:24] Speaker 01:
And he never implicated.

[00:18:26] Speaker 01:
Kevin Ward in his opening statement, in his theory of the defense.

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For all the defendant knew, and based on what Kevin Ward testified to, as shots are being fired, Anthony Armenta doesn't know where those shots are coming from.

[00:18:40] Speaker 01:
He's already down by the riverbank and he says shots are fired.

[00:18:43] Speaker 01:
Anthony Armenta said he goes back to his car to get a gun and eventually fires up.

[00:18:48] Speaker 01:
But Kevin Ward said he comes down from the rocks and he's standing there and he says that Anthony Armenta says, shoot the truck, shoot the truck.

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Those two defenses, I would submit, are not mutually exclusive.

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And the reason why is that based on all of the evidence that Kevin Ward introduced about his state of mind and his duress defense, he may have believed when Anthony Armenta turned to him and said, shoot the truck, that he was under duress, that he had no choice.

[00:19:15] Speaker 03:
Let me just make sure I'm understanding Mr. Armenta.

[00:19:20] Speaker 03:
What you contend is Mr. Armenta's theory of defense is that he didn't

[00:19:26] Speaker 03:
He didn't fire the shots.

[00:19:29] Speaker 01:
Wasn't that his defense?

[00:19:31] Speaker 01:
And not entirely.

[00:19:31] Speaker 01:
He claimed that he walked back to the black SUV by the riverbank, which, again, no witness saw or testified to, got a gun at that point after Kevin Ward started firing and fired up.

[00:19:43] Speaker 01:
And in fact, he goes on to say, to bolster this sort of pseudo self-defense.

[00:19:48] Speaker 03:
Well, OK, but isn't his defense that he didn't fire on the victims?

[00:19:52] Speaker 03:
That's correct.

[00:19:53] Speaker 03:
That's the theory of his defense.

[00:19:54] Speaker 01:
That's correct.

[00:19:55] Speaker 03:
All right.

[00:19:55] Speaker 03:
He had a gun.

[00:19:58] Speaker 03:
Mr. Ward had a gun.

[00:19:59] Speaker 03:
They both had guns.

[00:20:04] Speaker 03:
someone fired towards the victims.

[00:20:10] Speaker 03:
If Mr. Armenta's defense is that he didn't fire at the victims and Mr. Ward's defense is he fired at them under duress, how are those defenses not mutually antagonistic?

[00:20:24] Speaker 01:
Well, they're not pointing the finger at each other.

[00:20:26] Speaker 01:
And that's a great point just to also note.

[00:20:28] Speaker 03:
Well, do you have to point the finger at each other?

[00:20:31] Speaker 03:
It's really a matter of how do you reconcile those

[00:20:33] Speaker 01:
I do think you have.

[00:20:35] Speaker 01:
You don't necessarily have to point the finger at each other.

[00:20:38] Speaker 01:
And all of the cases on mutual exclusivity don't necessarily say that blame has to be cast.

[00:20:46] Speaker 01:
But what it does say is that the conflict has to be so intense.

[00:20:51] Speaker 01:
The guidance is that the conflict has to be so intense that the jury finds them both guilty.

[00:20:55] Speaker 01:
Essentially, the jury throws up its hands and says, we don't know what to do because they're both lying.

[00:21:02] Speaker 01:
They don't know what to do with that evidence.

[00:21:04] Speaker 01:
And so they find them both guilty.

[00:21:05] Speaker 01:
And that's not what you have in this case.

[00:21:08] Speaker 01:
If anything, what you have is, and this is exactly what the defendant argued in its initial motion to sever prior to the trial, mutually antagonistic in part.

[00:21:17] Speaker 01:
It's one directional.

[00:21:19] Speaker 01:
I would argue that you can look at the duress defense and say that the duress defense doesn't necessarily

[00:21:25] Speaker 01:
require, the duress defense doesn't necessarily require the guilt of Armenta.

[00:21:32] Speaker 01:
Ward's duress defense does not necessarily require the guilt of Armenta.

[00:21:35] Speaker 00:
Doesn't it, you know, as counsel just told us, as defense counsel just said, it certainly does seem to.

[00:21:41] Speaker 00:
If you, if the test, if we have to, if we have to look at the core of the duress defense, which was these pre-existing bad acts, as well as his threat to me at

[00:21:54] Speaker 00:
at the moment before I shot, this is why I was under duress.

[00:22:00] Speaker 00:
If the jury believed that, then Mr. Armenta is guilty of aiding and abetting at a minimum.

[00:22:10] Speaker 01:
I'm not sure that he would be guilty of aiding and abetting, because Mr. Armenta at that point... And he told him to shoot.

[00:22:14] Speaker 00:
His defense was he told me to shoot.

[00:22:17] Speaker 00:
And the reason I did it was because of these prior bad acts.

[00:22:21] Speaker 00:
And I know what he's capable of.

[00:22:23] Speaker 00:
And I'd seen these things.

[00:22:24] Speaker 00:
And he threatened me before.

[00:22:25] Speaker 00:
So when he told me to do it, I did it.

[00:22:28] Speaker 00:
If the jury believes that, if the jury believes that and says, all right, you, Mr. Ward, you're not guilty.

[00:22:34] Speaker 00:
We understand why you were under duress.

[00:22:36] Speaker 00:
We feel you're not guilty.

[00:22:39] Speaker 00:
But, oh, you, Mr. Armenta, who is guilty of essentially these prior bad acts, which are horrible, as well as threatening him at the moment, you are responsible through aiding and abetting by Mr. S. Why isn't that exactly mutually exclusive?

[00:22:59] Speaker 01:
Because the core of

[00:23:00] Speaker 01:
Ward's defense, that duress defense, saying, he told me to shoot, doesn't negate the innocence of Armenta.

[00:23:07] Speaker 01:
And the reason why is that self-defense theory that I was discussing at the outset.

[00:23:13] Speaker 01:
And the reason why is Armenta could believe he was under attack.

[00:23:16] Speaker 01:
Bullets are flying.

[00:23:17] Speaker 01:
He needs to tell his friend, shoot the truck, shoot the truck.

[00:23:21] Speaker 01:
He says, shoot the truck in self-defense because he believes bullets are being fired around.

[00:23:26] Speaker 01:
Ward, at the same time,

[00:23:28] Speaker 01:
His belief, based on everything he saw, is that he had no choice.

[00:23:31] Speaker 01:
And again, this actually comes back to something the district court.

[00:23:34] Speaker 00:
The problem we have is there wasn't any evidence of any.

[00:23:37] Speaker 00:
That's the problem.

[00:23:38] Speaker 00:
There was no evidence of that.

[00:23:40] Speaker 00:
The defense that you're just saying could have been his defense, we don't really know.

[00:23:44] Speaker 00:
But the fact of the matter is- His defense was, I didn't shoot at the victims.

[00:23:47] Speaker 01:
But the fact of the matter is that that's exactly what, in the Supreme Court's decision in Zafiro, I believe it's the concurrence by Justice Stevens, what he says is that,

[00:23:57] Speaker 01:
Uh, you know, unlikely as it may be, it's the theories of defense that could be out there and do those negate.

[00:24:03] Speaker 01:
The problem is actually in the personally, I believe it's the personally decision.

[00:24:07] Speaker 01:
The problem that the court found in the Persley decision, and the district court mentioned this at trial, is the problem isn't the misfortune of trial with the two co-defendants here.

[00:24:17] Speaker 01:
The problem is there was no evidence of it.

[00:24:19] Speaker 01:
Ward said that shots were being fired.

[00:24:20] Speaker 01:
No one said anybody but Ward fired the first shots.

[00:24:24] Speaker 01:
Armenta said he went back to the truck to get a gun.

[00:24:26] Speaker 01:
Every one of the victims said Armenta pulled out a gun first and is holding the gun first at Braden Rich, one of the victims,

[00:24:34] Speaker 01:
And then he turns and holds the gun at the two other victims in the boat, with his back turned to Kevin Ward, who's standing at the truck.

[00:24:43] Speaker 01:
Kevin Ward said he comes there and the defendant says, shoot the truck, shoot the truck.

[00:24:46] Speaker 01:
All three of the victims said that he, or two out of the three victims, I believe, said he jumped on the windshield and said, get out of the truck, get out of the truck.

[00:24:55] Speaker 01:
The fact of the matter is neither of their defenses, there was no evidence really for either of the defenses.

[00:25:02] Speaker 01:
Kevin Ward's defense was exposed for inconsistencies, is one way to put it.

[00:25:09] Speaker 01:
There's some stronger terms, I think.

[00:25:11] Speaker 01:
But the jury didn't have to believe Kevin Ward, and the jury didn't believe Kevin Ward.

[00:25:16] Speaker 05:
Well, Amanda didn't put any evidence on the roll, did he?

[00:25:18] Speaker 01:
That's true.

[00:25:19] Speaker 01:
He did not.

[00:25:20] Speaker 01:
And so he has this... Doesn't that hurt his case a little bit?

[00:25:22] Speaker 01:
I think it does.

[00:25:23] Speaker 01:
I think it both hurts his case at trial, and I think it hurts his case here as well, because the fact of the matter is he's claiming to have had a defense theory

[00:25:30] Speaker 01:
But it's hard to make out exactly what that defense theory is, except for the fact that he said that shots were being fired.

[00:25:37] Speaker 01:
He didn't know where they were coming.

[00:25:38] Speaker 01:
This is in his opening statement.

[00:25:40] Speaker 01:
Shots were being fired.

[00:25:41] Speaker 01:
He didn't know where they were coming from.

[00:25:42] Speaker 01:
On cross-examination of the victims, he asked, counsel asked, I believe several times, what was your back, was his back to Kevin Ward, implying he didn't know where shots were coming from.

[00:25:54] Speaker 01:
And then he goes back to his truck, and then he only fires up.

[00:25:57] Speaker 01:
That was also contradicted by the victims in this case.

[00:26:01] Speaker 03:
What would you, just to boil it down, with the evidence presented at trial to support the conviction of Mr. Armitage?

[00:26:14] Speaker 01:
To support the conviction?

[00:26:15] Speaker 01:
I think that's actually a really great question.

[00:26:19] Speaker 01:
The difference between this case and all of the other cases that discuss both mutual antagonistic defenses and frankly the issue of severance.

[00:26:26] Speaker 01:
Most of the cases that deal with, and I know I'm going to answer your honor's question, but most of the cases that deal with this issue of severance deal with complex conspiracies, bank fraud, drug cases.

[00:26:38] Speaker 01:
They involve cases where the government can put on in essence

[00:26:41] Speaker 01:
circumstantial evidence and say, we've built our case, and then you get defendants fighting with each other.

[00:26:47] Speaker 01:
That's not this case.

[00:26:49] Speaker 01:
This case was a violent crime.

[00:26:51] Speaker 01:
We have three uninvolved, I guess you could call them civilian witnesses, who were just out fishing.

[00:26:57] Speaker 01:
They come back from when they're fishing, and they all see the same consistent story.

[00:27:02] Speaker 01:
Anthony Armenta is the first one asking for jumper cables, and he pulls out a gun.

[00:27:07] Speaker 01:
He points the gun at first

[00:27:09] Speaker 01:
Brayden Rich, and then turns his attention to the victims at the river.

[00:27:13] Speaker 01:
And when he turns his, when Kevin Ward, Anthony Armenta turns to Kevin Ward at some point, says, pop him.

[00:27:20] Speaker 01:
Kevin Ward fires two shots into the truck, and then Anthony Armenta goes and shoots the two boys that are in the river.

[00:27:25] Speaker 01:
And he hits one of those two boys right in the gut, basically, causing him to eventually have multiple surgeries.

[00:27:32] Speaker 01:
That, in a nutshell, is the evidence presented by all of the victims in this case.

[00:27:39] Speaker 01:
They were unimpeached.

[00:27:40] Speaker 01:
The fact of the matter is one of the victims was barely cross-examined, the victim who got shot.

[00:27:48] Speaker 01:
And that testimony contradicted almost everything that was testified to by Ward.

[00:27:53] Speaker 01:
So talk about the prejudice.

[00:27:54] Speaker 01:
Talk very quickly to talk about the prejudice element.

[00:27:58] Speaker 01:
I would argue that the prejudice element isn't met both because of the victim's testimony, but also because Ward wasn't particularly believable.

[00:28:07] Speaker 01:
So word testified about all this prior bad acts, which the district court absolutely correctly ruled could have come in in a separate trial.

[00:28:15] Speaker 01:
And there's cases that talk about this.

[00:28:17] Speaker 01:
I want to say, although I might be getting it wrong, but it may be the Jones case that talks about the fact that a co-defendant's testimony at a joint trial doesn't necessarily mean that that co-defendant wouldn't be able to testify.

[00:28:31] Speaker 01:
at the defendant's severed trial.

[00:28:34] Speaker 01:
So when you're talking about the fact that you have three victims who came and testified in this violent crime case, whether or not there was prejudice to the defendant, there wasn't prejudice.

[00:28:45] Speaker 01:
And even if there was prejudice, the judicial economy of having when the acts of the defendant and the co-defendant are overlapping and so overlapping and intertwined, they came together.

[00:28:56] Speaker 01:
They left together.

[00:28:58] Speaker 01:
They were found together the next day.

[00:29:00] Speaker 01:
They were arrested together.

[00:29:02] Speaker 01:
Their acts were overlapping and intertwined.

[00:29:04] Speaker 01:
And to say that there needs to be separate trials when you have three victims who came and testified, three civilian victims who didn't ask for this, I think that the court was reasonable and within its discretion to say that any sort of prejudice, if there was prejudice, and the government doesn't concede that there was prejudice,

[00:29:23] Speaker 01:
is surely outweighed by judicial economy.

[00:29:27] Speaker 00:
Can we assume that the prior bad acts would have come in in a separate trial?

[00:29:33] Speaker 01:
Well, let me say, I'm not sure I want to say that can we assume.

[00:29:36] Speaker 01:
I think that there's certainly an argument to be made that they would.

[00:29:39] Speaker 01:
And the reason why I hedge and say that we wouldn't necessarily assume is because I think that actually addresses the fact that the defendant can't identify a specific trial right.

[00:29:50] Speaker 01:
They can't say,

[00:29:51] Speaker 01:
his confrontation rights were violated.

[00:29:53] Speaker 01:
They can't say exculpatory evidence that he couldn't present exculpatory evidence.

[00:29:58] Speaker 01:
He can't say that these, and the defense side's a case.

[00:30:02] Speaker 03:
Well, why can't they say, why isn't the right to due process?

[00:30:05] Speaker 01:
Well, because the fact of the matter is that the 404B evidence that came in, first of all, it wasn't procedurally invalid.

[00:30:12] Speaker 01:
The co-defendant didn't have to present notice of it.

[00:30:14] Speaker 01:
But second of all, that 404B evidence

[00:30:18] Speaker 01:
is, in essence, a discretionary decision also on the part of the court.

[00:30:22] Speaker 01:
It's not like confrontation.

[00:30:23] Speaker 01:
It's not like exculpatory evidence.

[00:30:25] Speaker 01:
It's not even like spousal privilege, where the defense cites a case, United States versus Blount.

[00:30:31] Speaker 01:
And I apologize, I don't have the citation.

[00:30:33] Speaker 01:
But they say it stands for the proposition that spousal abuse can't come in.

[00:30:37] Speaker 01:
But that's not what it stands for.

[00:30:38] Speaker 01:
It stands for the proposition that spousal privileged testimony is that kind of specific trial right.

[00:30:46] Speaker 01:
And so the fact is that,

[00:30:48] Speaker 01:
They can't identify a specific trial right.

[00:30:50] Speaker 01:
The jury's decision on guilt or innocence was not based on any sort of prejudice.

[00:31:00] Speaker 01:
It was based on the victim's testimony.

[00:31:02] Speaker 01:
And for all these reasons, we would ask this court to affirm the defendant's conviction.

[00:31:07] Speaker 03:
Thank you, counsel.

[00:31:09] Speaker 03:
I think we've exhausted the time again.

[00:31:11] Speaker 03:
So we will consider the case submitted, and counsel are excused.