[00:00:01] Speaker 00:
Next case we have this morning is 23-2010, United States versus Gallegos, I believe.

[00:00:08] Speaker 00:
Counsel for Appellant, if you would make your appearance and proceed, please.

[00:00:15] Speaker 02:
JK Theodosia Johnson on behalf of Mr. Gallegos.

[00:00:18] Speaker 02:
The government here played a 16-minute video clip of Mr. Gallegos and the police in a volatile standoff.

[00:00:25] Speaker 02:
Within the first few minutes of the video, the police shot Mr. Gallegos, albeit with a less lethal round.

[00:00:42] Speaker 02:
And then, in case the jury missed it, the government replayed just that clip.

[00:00:49] Speaker 02:
This, more than anything else, shows that that video was not Russ Justi.

[00:00:54] Speaker 02:
It was not intrinsic to the assault of Mr. Kiroga, and it simply wasn't relevant to any of the issues.

[00:01:13] Speaker 02:
Allowing 404B, so intrinsic evidence, of course, is related to 404B outputs, the differences between intrinsic and extrinsic.

[00:01:23] Speaker 02:
But both should really go to relevancy, and the idea that they go to motive or opportunity or intent.

[00:01:29] Speaker 02:
And none of the standoff went to that.

[00:01:33] Speaker 02:
All it did was show the jury that the police believed he was a dangerous criminal, which then robbed Mr. Gallegos of an impartial jury.

[00:01:43] Speaker 02:
That's even if, so res jesti, if it's not, if it's intrinsic, it doesn't necessarily, it's an exception to relevancy.

[00:01:57] Speaker 02:
It can be an exception to relevancy if it's intrinsic.

[00:02:01] Speaker 00:
Why isn't that?

[00:02:04] Speaker 00:
You point out the showing of the video clip as exemplifying why it was not intrinsic.

[00:02:13] Speaker 00:
It's not readily apparent to me why that's true.

[00:02:17] Speaker 00:
I mean, what you have going on here, at least I think in the government's theory, is a flight situation and a culmination of the flight.

[00:02:27] Speaker 00:
And so it is telling the story that took place essentially in real time after the alleged assault on the post officer.

[00:02:36] Speaker 00:
And so why isn't it just part of the story of what happened

[00:02:44] Speaker 00:
And so clarify for me, I mean, the fact that they showed the video clip, it's not self-evident to me why that helps you.

[00:02:51] Speaker 02:
Well, because it has nothing to do even with the flight.

[00:02:55] Speaker 02:
It wasn't necessary.

[00:02:58] Speaker 02:
We had Sergeant Witten testify that he saw someone who matched the assailant of Mr. Kiroga in a yellow sweater, blue jeans, half a mile from the assault, within half a mile and within 10 minutes of the assault.

[00:03:13] Speaker 02:
And then when he tried to stop him, the man fled.

[00:03:18] Speaker 02:
Mr. Witten could testify to that.

[00:03:21] Speaker 02:
There's no video for that.

[00:03:22] Speaker 02:
But then you cannot go on and have the standoff, because the standoff has nothing to do with anything.

[00:03:28] Speaker 02:
It's not a culmination of the flight.

[00:03:33] Speaker 02:
If he had gotten away, if they had never found him but was later arrested, you wouldn't get that standoff in.

[00:03:40] Speaker 02:
It doesn't change.

[00:03:42] Speaker 02:
that they supposedly tracked him from yard to yard.

[00:03:45] Speaker 00:
Isn't there, isn't the natural question when you're telling the story and part of the intrinsic evidence thing is the notion that you don't want to leave the jury confused as to what the story is.

[00:03:57] Speaker 00:
The natural question is, and so how did you catch it?

[00:04:02] Speaker 00:
How did this end in exhibit A?

[00:04:06] Speaker 00:
That's how it ended.

[00:04:07] Speaker 00:
Why isn't that a natural way this would play out?

[00:04:10] Speaker 02:
Excuse me, Your Honor.

[00:04:11] Speaker 02:
I think the exhibit, it ends when he's arrested.

[00:04:14] Speaker 02:
You don't need the video of how he's arrested.

[00:04:16] Speaker 02:
You just say, he was found in Mr. Stank's shed.

[00:04:20] Speaker 02:
We arrested him.

[00:04:21] Speaker 02:
At some point, he lost a sweater.

[00:04:24] Speaker 02:
The testimony as it was given doesn't

[00:04:28] Speaker 02:
account for the loss of the sweater already.

[00:04:30] Speaker 02:
It's not necessary to complete the story.

[00:04:32] Speaker 02:
And even if it was necessary to complete the story, it's far too prejudicial.

[00:04:40] Speaker 02:
Having the police shoot our client and then repeatedly tell him that he has to surrender, a force is going to be used against him, and then at the very end say, I've paid for you to have an encounter with a police dog.

[00:04:55] Speaker 02:
clearly shows that the police believe he's a dangerous criminal.

[00:04:58] Speaker 02:
And that, even if it is relevant, which I still insist it's not, robbed Mr. Gallegos of an impartial jury.

[00:05:09] Speaker 02:
I mean, it invited them to make the decision on the fact that he was a scary individual who, according to Sergeant Winton's testimony, and I do not think that his testimony about why he shot Mr. Gallegos should have been allowed either,

[00:05:25] Speaker 02:
was that he was concerned he was going to break into this house in the middle of the day.

[00:05:30] Speaker 00:
Let me be clear on one thing.

[00:05:33] Speaker 00:
The motion in the Lemony order had certain parts to it.

[00:05:38] Speaker 00:
There were like three aspects to it.

[00:05:41] Speaker 00:
Is your challenge just relate to this last incident of how the circumstances under which he was

[00:05:48] Speaker 00:
arrested or does it relate to the actual flight itself or what does it, you know, there were three... There were three and we did argue all three in the brief but how... There were, what did you just say?

[00:06:00] Speaker 00:
I'm sorry.

[00:06:00] Speaker 02:
I'm sorry.

[00:06:02] Speaker 02:
Yes, we did argue all three in the brief.

[00:06:05] Speaker 02:
I understand this court's precedent that the immediate flight is a difficult argument to win and so we're focusing on the standoff because

[00:06:17] Speaker 02:
Even if you agree with the flight, that video of the standoff, it's too prejudicial, and it really isn't relevant.

[00:06:27] Speaker 02:
The judge said it went to identity as well as risk-just type, but it doesn't.

[00:06:32] Speaker 02:
The fact that he said his name was Yoshi and he lived there is equally or more likely that it was because he was trespassing.

[00:06:41] Speaker 00:
It went to identity as in 404B identity?

[00:06:46] Speaker 02:
Neither the government nor the judge ever raised 404B, but when she made her oral ruling in that pre-trial motion, she said it goes to context, it goes to the rest, it's just I.

[00:06:59] Speaker 02:
goes to ID, which is an issue in the case.

[00:07:02] Speaker 00:
So, well, why doesn't it go to ID when it's him?

[00:07:07] Speaker 00:
I mean, that's the guy sitting at the table, at the defense table.

[00:07:13] Speaker 00:
Why isn't that go to identity when that's what this case is all about?

[00:07:19] Speaker 02:
Because once

[00:07:25] Speaker 02:
All you needed for that portion of the identity was that Sergeant Winton saw someone within half a mile and 15 minutes that matched Mr. Kiorga's description of the assailant and that later on he arrested that same person.

[00:07:43] Speaker 02:
The testimony that Sergeant Winton gave was that the yellow sweater was missing.

[00:07:47] Speaker 02:
So that was already gone.

[00:07:49] Speaker 02:
So you didn't need the standoff for identification.

[00:07:52] Speaker 00:
And when they had the...

[00:07:54] Speaker 00:
when they saw him in that video, he wasn't wearing the yellow sweater, right?

[00:07:58] Speaker 00:
So that corroborates what the officer said was the state of affairs when they found him.

[00:08:06] Speaker 00:
In other words, they said he wasn't wearing the yellow sweater when we found him.

[00:08:10] Speaker 00:
In the video, he's not wearing the yellow sweater.

[00:08:12] Speaker 00:
Why isn't that supportive and why isn't that connected to the earlier testimony?

[00:08:20] Speaker 02:
Because you don't need the video for that.

[00:08:24] Speaker 02:
You have the photo of Mr. Gallegos immediately after being arrested where he's clearly shirtless.

[00:08:29] Speaker 02:
And it doesn't matter what happened to the yellow sweater.

[00:08:33] Speaker 02:
It disappeared.

[00:08:35] Speaker 00:
And I know that you have also the issue of the show up.

[00:08:38] Speaker 00:
And so I don't want to occupy this too long.

[00:08:41] Speaker 00:
Let's circle back if we get to it.

[00:08:43] Speaker 02:
Do you have anything on the show up?

[00:08:45] Speaker 02:
So in eyewitness ID, reliability has to overcome suggestibility.

[00:08:50] Speaker 02:
And here, it didn't.

[00:08:52] Speaker 02:
And the judge didn't make the proper findings, a find that it did.

[00:08:55] Speaker 02:
Mr. Kiorgo was brought to a police-dominated scene, asked immediately if this man was who he saw.

[00:09:02] Speaker 02:
And he said, yes.

[00:09:05] Speaker 02:
Now, Manson versus Manson gives a good example of what the calculus of suggestiveness and reliability should be.

[00:09:14] Speaker 02:
It went through the suggestiveness.

[00:09:17] Speaker 02:
No, sorry.

[00:09:17] Speaker 02:
It went through the reliability factors first,

[00:09:20] Speaker 02:
Trooper Glover was within two to three feet of him.

[00:09:23] Speaker 02:
It was fairly well lit.

[00:09:26] Speaker 02:
It was a two to three minute conversation.

[00:09:28] Speaker 02:
Trooper Glover was trained to make observations that would later lead to an identification.

[00:09:35] Speaker 02:
And the description he gave to his coworker was sufficiently detailed that that man could go and find the photo.

[00:09:44] Speaker 02:
And then the court looked at the suggestibility of it.

[00:09:50] Speaker 02:
that he only had one photo and was obviously inclined to, you had no differential things to pick from, so that weighs in favor of suggestibility.

[00:10:00] Speaker 02:
But then he noticed that there was no coercive pressure because there was no people in his immediate area, so there was no

[00:10:09] Speaker 02:
feeling of coercion.

[00:10:11] Speaker 02:
And it also pointed out that he had plenty of time to look at it and reflect and like, is this really who I saw?

[00:10:18] Speaker 02:
And none of that is present here.

[00:10:21] Speaker 02:
And importantly, the judge never addresses the difference between how suggestive show-ups are versus like a photo array.

[00:10:33] Speaker 02:
Show-ups are

[00:10:34] Speaker 02:
more suggestive than even biased photo arrays.

[00:10:39] Speaker 03:
Well, the court started with the presumption that it was suggestive.

[00:10:43] Speaker 03:
And then it applied the rigor factors to determine whether, nonetheless, it's admissible, right?

[00:10:54] Speaker 02:
She checked the boxes.

[00:10:55] Speaker 02:
But she didn't look at it in terms of the suggestiveness.

[00:10:59] Speaker 02:
She never looked like, OK.

[00:11:03] Speaker 02:
He was brought, there's only one person.

[00:11:04] Speaker 02:
He meets the general description, which the government conceded and the judge found was too generic to support reasonable suspicion.

[00:11:14] Speaker 02:
If you cannot stop someone because he looks too much, he looks too generic, especially in Albuquerque, New Mexico, skinny Hispanic man, you can't then say that description was sufficiently reliable that it overcomes the suggestiveness of a show up.

[00:11:33] Speaker 02:
Because if you hear what his description to Sergeant Hitchens was, he says that our guy has an afro, and he gestures out to his hat.

[00:11:46] Speaker 02:
But then when you look at Mr. Gallegos, he doesn't have an afro.

[00:11:50] Speaker 02:
And then when Mr. Gallegos was arrested, you could see that he's wearing mirrored sunglasses.

[00:11:55] Speaker 02:
That wasn't mentioned.

[00:11:56] Speaker 02:
In the distance of which you make Gallegos looked,

[00:12:02] Speaker 02:
so great that it's hard to pick out any identifying characteristics.

[00:12:08] Speaker 02:
So you have a very generic description that you're told, he was taken over to this person, he was told, this is the guy who assaulted you.

[00:12:15] Speaker 02:
And he says, yeah, 100%.

[00:12:17] Speaker 00:
He repeated the description at least, what, two or three times, right?

[00:12:22] Speaker 00:
Yes.

[00:12:24] Speaker 00:
And so what do we do with that?

[00:12:27] Speaker 02:
Well, it's a generic description.

[00:12:30] Speaker 02:
It's eternally consistent.

[00:12:31] Speaker 00:
Well, the clothes aren't generic.

[00:12:33] Speaker 02:
Well, the clothes aren't generic.

[00:12:35] Speaker 00:
And the ethnicity is not generic.

[00:12:38] Speaker 00:
I mean, it may be New Mexico, but not everybody in New Mexico is Hispanic.

[00:12:42] Speaker 02:
Well, correct, but it is the majority, and it's not particularly differentiating in Albuquerque.

[00:12:48] Speaker 00:
Before it's too late for me, let me ask you, in your

[00:12:53] Speaker 00:
A reply brief, if you recall, there was a reference to defense counsel questioning Mr. Carioga about his identification of Mr. Gallegos, indicating that the defense had not taken the identity of Mr. Carioga as assailant from the jury's consideration.

[00:13:13] Speaker 00:
This goes towards the admission.

[00:13:15] Speaker 00:
There's no citation to the record on that.

[00:13:17] Speaker 00:
I couldn't find it.

[00:13:18] Speaker 00:
Where is it?

[00:13:20] Speaker 02:
I apologize.

[00:13:22] Speaker 02:
I don't have that right in front of me.

[00:13:24] Speaker 02:
But it's within the first few pages.

[00:13:27] Speaker 02:
And then certainly, in the jury instruction conference, they talk about the identification instruction.

[00:13:33] Speaker 00:
Well, we look real hard.

[00:13:35] Speaker 00:
So if you could file a supplemental authority and explain to us where that is, I would be appreciated.

[00:13:41] Speaker 02:
Right.

[00:13:44] Speaker 02:
But even if she didn't make that specific question,

[00:13:49] Speaker 02:
This wasn't a judicial omission.

[00:13:51] Speaker 02:
It was not a waiver of the argument, because the error was not when it was admitted to trial or not admitted to trial.

[00:13:57] Speaker 02:
The error occurred when the show-up ID occurred, and that was what the error was.

[00:14:02] Speaker 02:
That was what the due process error was.

[00:14:10] Speaker 02:
So Mr. Gallegos was put into a box when they removed the identification.

[00:14:18] Speaker 02:
from the jury's consideration because he couldn't continue with that knowing what we know about juries, which is that they confuse certainty with accuracy.

[00:14:27] Speaker 02:
And he already said that he was 100% certain.

[00:14:29] Speaker 02:
And then with the video showing that it took away the intent argument because you think he was relayed as a dangerous criminal.

[00:14:37] Speaker 02:
Fundamentally, Mr. Gallegos was denied a fair trial by the pre-trial rulings.

[00:14:43] Speaker 02:
I'll reserve the rest of my time.

[00:14:43] Speaker 02:
Thanks.

[00:14:48] Speaker 01:
Good morning, Your Honors.

[00:14:50] Speaker 01:
May it please the Court, my name is Amel Keeney from the U.S.

[00:14:53] Speaker 01:
Attorney's Office in Albuquerque.

[00:14:55] Speaker 01:
And I'd first like to start out, I think I have the record site that you were asking for, Judge Holmes.

[00:15:01] Speaker 01:
Great.

[00:15:01] Speaker 01:
I think you were asking for the, where defense counsel asked Mr. Quiroga about his difficulty in identifying Mr. Gallegos at the suppression hearing, which occurred a year after.

[00:15:14] Speaker 01:
And that's volume three of the record.

[00:15:18] Speaker 01:
at page 164, 165.

[00:15:21] Speaker 01:
She did question him about, cross-examine him about that.

[00:15:27] Speaker 01:
And what she argued, I'm sorry, that was her closing argument.

[00:15:33] Speaker 01:
I'm sorry, I have...

[00:15:34] Speaker 01:
That's from her closing argument.

[00:15:36] Speaker 01:
I know she did question it.

[00:15:38] Speaker 01:
I agree that she did question it.

[00:15:39] Speaker 00:
Well, we'll take it back.

[00:15:41] Speaker 00:
And there will be some light shined on that issue at some point.

[00:15:44] Speaker 00:
But I appreciate you trying to help the court.

[00:15:49] Speaker 00:
Let me ask you, though, on this whole question of

[00:15:52] Speaker 00:
the statements that were made by defense counsel and whether this issue of identification is actually before us.

[00:16:04] Speaker 00:
The defendant framed this as a question of whether this was a judicial admission.

[00:16:09] Speaker 00:
Do you acknowledge that framework is what governs here in determining this whole question of whether that information, whether that issue is before us now?

[00:16:19] Speaker 01:
I think that's correct.

[00:16:20] Speaker 01:
And the reason I didn't say that in my answer brief is

[00:16:24] Speaker 01:
I'm sorry, I just didn't realize there was a name for what I was arguing.

[00:16:27] Speaker 01:
You anticipated my next question, and so thank you for that.

[00:16:33] Speaker 01:
That was my bad.

[00:16:35] Speaker 01:
But I agree with that framework, and I think it was a judicial omission.

[00:16:39] Speaker 01:
Because if you look at the opening brief,

[00:16:44] Speaker 01:
The way the facts are phrased, Mr. Kiroga came across a man, and that man pulled a knife on him.

[00:16:52] Speaker 01:
And then it goes on from there, always referring to the criminal, the person who committed the assault as a man.

[00:16:59] Speaker 01:
Now, it's quite different in counsel's opening statement to the jury.

[00:17:03] Speaker 01:
At least 10 times, she's always referring to her client by his first name, Elias.

[00:17:10] Speaker 01:
She said, Elias was walking down the street.

[00:17:13] Speaker 01:
He was walking in front of this postal worker.

[00:17:16] Speaker 01:
He knelt down.

[00:17:18] Speaker 01:
The postal workers come up.

[00:17:20] Speaker 01:
Elias was startled.

[00:17:21] Speaker 01:
Elias was this.

[00:17:22] Speaker 01:
Elias thought that.

[00:17:23] Speaker 01:
Elias didn't intend anything to do anything wrong.

[00:17:26] Speaker 01:
He was just startled.

[00:17:28] Speaker 01:
There's no mention anywhere in her opening argument, closing argument, anywhere at trial that this is an issue, a disputed issue of fact as to who it was with whom Mr. Quiroga interacted that day.

[00:17:45] Speaker 00:
But if you acknowledge, and with record sight to be forthcoming, if you acknowledge that in fact defense counsel questioned Mr. Quiroga about

[00:17:55] Speaker 00:
the identification and the validity of it, why wouldn't that be a sign that in fact they were not taking the question of identity off of the table?

[00:18:05] Speaker 00:
Why doesn't that bolster the argument of the defendant that it is not a judicial admission?

[00:18:12] Speaker 01:
Right, because what she asked him during cross-examination is, isn't it true that at the suppression hearing a year later, you had trouble identifying Mr. Gallegos?

[00:18:26] Speaker 01:
And he said that was because he looked different from when I saw him on that day.

[00:18:32] Speaker 01:
And the way she employed that in her closing argument, and that's at 165, volume three of the Record on Appeal, the way she employed that was she employed that along with other discrepancies in the various statements that Mr. Kiroga gave over time and said, look, he's

[00:18:56] Speaker 01:
Because there's these discrepancies in his testimony, his perception of Mr. Gallegos' intent, there's a reasonable doubt about his intent.

[00:19:09] Speaker 01:
The whole defense was about intent, not identity.

[00:19:15] Speaker 03:
But there was also a jury instruction that told the jury that they had to make the identification.

[00:19:22] Speaker 01:
That's right.

[00:19:23] Speaker 01:
I think that's still an element.

[00:19:26] Speaker 01:
I think that instruction was added that the parties that proposed their instructions before trial, we had no idea that there was going to be this shift in the defense.

[00:19:40] Speaker 03:
Well, wasn't there discussions between the pretrial, between the defense and the prosecution about a possible stipulation on identity

[00:19:54] Speaker 03:
And the trial court said, sure, if you want to enter into that, but then nothing came of it.

[00:20:02] Speaker 01:
I'm sorry.

[00:20:02] Speaker 01:
I don't remember that, actually.

[00:20:04] Speaker 01:
I know I should, but I don't remember it.

[00:20:07] Speaker 03:
I don't think I made it up.

[00:20:09] Speaker 01:
No, I'm certain you didn't.

[00:20:11] Speaker 01:
But that defense was certainly not off the table.

[00:20:16] Speaker 01:
before trial began, before defense counsel's opening statement.

[00:20:21] Speaker 01:
There was no indication that it was off the table before then.

[00:20:24] Speaker 01:
But once she takes it off the table, yes, the district court went on and gave that instruction.

[00:20:29] Speaker 01:
I think it was an unnecessarily favorable instruction to the defense because it suggested

[00:20:36] Speaker 01:
Although defense counsel had taken that disputed issue of fact off the table, that it might still be an issue for the jury, even though no one was contending that Mr. Gallegos was not the person with whom Mr. Quiroga interacted that day.

[00:20:51] Speaker 01:
So I think if it was an error to give the instruction, it was one that was favorable to the defense.

[00:20:57] Speaker 01:
I don't think it's one that resurrected that issue as an actual issue of fact, a disputed issue of fact.

[00:21:04] Speaker 01:
Now, one thing the defendant has said in her reply is, well, the jury still had to find that.

[00:21:12] Speaker 01:
Of course, I don't disagree with that.

[00:21:14] Speaker 01:
The jury had to think that the defendant was the one who committed the crime, sure.

[00:21:18] Speaker 01:
But saying that something is an element of the offense is not the same thing as saying it's a disputed issue of fact.

[00:21:24] Speaker 01:
Sometimes they're disputed elements.

[00:21:27] Speaker 01:
of an offense, but we still instruct the jury about those elements.

[00:21:31] Speaker 00:
We instruct the jury, but sometimes when there's such a concession, we would instruct the jury that that issue is not, this is an issue, this is an element, but you don't have to decide this.

[00:21:41] Speaker 01:
Right.

[00:21:42] Speaker 00:
And so that wasn't done here.

[00:21:44] Speaker 01:
That's correct.

[00:21:45] Speaker 00:
Okay.

[00:21:46] Speaker 00:
Let me ask you to pick up where she started, defense counsel, on the question of the video and the showing of him

[00:21:56] Speaker 00:
the circumstances under which he was detained, and the question being that that was unduly prejudicial and there was no need for that.

[00:22:06] Speaker 00:
What's the response to that?

[00:22:08] Speaker 01:
Well, I think it's both relevant and not unduly prejudicial.

[00:22:12] Speaker 01:
It's relevant because it shows that what the police officer is testifying was correct.

[00:22:18] Speaker 01:
He testified that he went into this yard.

[00:22:20] Speaker 01:
There's a video of him in the yard.

[00:22:23] Speaker 01:
Officers testified he made efforts to hide himself in a shed.

[00:22:29] Speaker 01:
Now the video doesn't show him coming out of the shed, but it shows the officers discussing, saying, there, he's coming out of the shed.

[00:22:37] Speaker 01:
and then explains that he was headed towards the door.

[00:22:40] Speaker 01:
This is relevant to show the intensity and extent to which he's trying to go to escape being apprehended.

[00:22:49] Speaker 01:
He also, although you can't hear really what Mr. Gaius is saying, at least not too much on the video, you hear Sergeant Witten's responses.

[00:22:58] Speaker 01:
He asks him his name, and he says, oh, your name, Yoshi?

[00:23:01] Speaker 01:
And then they talk about, oh, you say you live here and then you hear one of the other officers saying, oh, we're actually over on the other side.

[00:23:10] Speaker 01:
I mean, you hear one of the other officers on Sergeant Winton's CD or radio talking about how they're going over to talk with the owner and so forth.

[00:23:20] Speaker 01:
So I think it helps to show that what Sergeant Wynton is testifying to was correct.

[00:23:26] Speaker 01:
And it's relevant because his efforts to escape, his efforts to say that in his lies, saying, I live here and this is my name, which are lies, shows his consciousness of guilt.

[00:23:38] Speaker 03:
Even if that's true and has probative value, was the video itself more prejudicial than probative because of the intensity

[00:23:50] Speaker 03:
and the idea that they had to deploy a non-lethal weapon to arrest him.

[00:23:58] Speaker 03:
I mean, you could have done everything you just described by testimony.

[00:24:03] Speaker 01:
That's right.

[00:24:04] Speaker 01:
That's right.

[00:24:04] Speaker 03:
And so the question is, was the video itself so graphic and painted the defendant in a light of being a dangerous criminal such that it should have been excluded

[00:24:21] Speaker 01:
No, Your Honor, it shouldn't.

[00:24:22] Speaker 01:
It doesn't actually portray him doing anything dangerous.

[00:24:26] Speaker 01:
What the officer explains is that the reason I shot is I thought he was going over towards the house.

[00:24:33] Speaker 01:
I wanted to prevent him from going inside.

[00:24:35] Speaker 01:
We never said or contended he was actually going inside.

[00:24:40] Speaker 01:
We don't know that.

[00:24:41] Speaker 01:
He was stopped before that.

[00:24:43] Speaker 01:
So I think it doesn't suggest any improper basis for a decision.

[00:24:47] Speaker 01:
I mean, you can think, though, of situations where the defendant might have done something that would, if he had been, say, shouting Nazi or racist slogans or something that was likely to offend a jury.

[00:25:03] Speaker 01:
and cause them to be distracted from what the issues of the case were, that might have been overly prejudicial.

[00:25:10] Speaker 01:
And the district court was sensitive to not, district court didn't allow the government to play the entire video.

[00:25:17] Speaker 01:
She cut it off because at one point he starts asking for an attorney, and she said, no, I don't want the jury to see that.

[00:25:23] Speaker 01:
So she's not just saying, whatever happened, I'm just going to show what happened.

[00:25:29] Speaker 01:
I don't think there's any

[00:25:31] Speaker 01:
And even if there's a possibility that the jury might form a negative impression of Mr. Gallegos, it's not.

[00:25:38] Speaker 01:
The 403 standard is the potential unfair prejudice has to substantially outweigh the probative value.

[00:25:49] Speaker 01:
And I don't think it outweighs it.

[00:25:50] Speaker 01:
And I don't think it's, even if it did, it's not substantial.

[00:25:53] Speaker 01:
I don't think the district court abused her discretion in admitting that review.

[00:25:59] Speaker 00:
Let me just get your general take on this, and this relates to all of the secondary literature that was put forward, casting doubt on the reliability, if you will, of eyewitness testimony.

[00:26:19] Speaker 00:
What do you think we should do with that sort of literature?

[00:26:24] Speaker 00:
One.

[00:26:25] Speaker 00:
Two, is there anything in there that you are aware of that you flat out question as being true?

[00:26:33] Speaker 00:
And the third question, and I'll repeat them.

[00:26:38] Speaker 00:
The third question relates to specifically this question of certainty and how in O'Neill, we reference the notion that certainty doesn't necessarily correlate into accuracy.

[00:26:52] Speaker 00:
And so those three things, one, generally, what do you think we should do with that literature?

[00:26:57] Speaker 00:
Do you question in any, was there anything that caught your eye that you questioned as being true about the notion of eyewitness testimony being subject to reliability problems?

[00:27:10] Speaker 00:
And three, specifically in this case, shouldn't we look askance at the 100% certainty that was articulated by Mr. Kiriaga in light of that secondary literature?

[00:27:23] Speaker 01:
Well, the secondary literature, I know this court looks at secondary literature from time to time.

[00:27:29] Speaker 01:
And I think a lot of the, I don't mind you using most of it here, because a lot of it, I think, is non-controversial.

[00:27:35] Speaker 01:
You know, the idea that someone who, if you were exposed to someone for a longer period of time, you're more likely to be able to identify them.

[00:27:44] Speaker 01:
If you're further away, you're less likely, things like that.

[00:27:47] Speaker 01:
There was one of the articles that said, like, even

[00:27:53] Speaker 01:
a half hour, it was talking about the duration and there was a quote in there, it was a half hour, over a half hour passes between a crime and an ID, then it is likely to be unreliable.

[00:28:07] Speaker 01:
I pulled that up and I didn't really see much support for that.

[00:28:12] Speaker 01:
proposition and it also said... The idea that you need a half hour?

[00:28:16] Speaker 01:
Right, the idea that over half hour is likely to be unreliable.

[00:28:22] Speaker 01:
I don't dispute the general proposition that over length of time you might have a more difficult time identifying someone.

[00:28:32] Speaker 01:
But I'm sorry, what was your second question?

[00:28:34] Speaker 00:
Well, you sort of answered the question.

[00:28:36] Speaker 00:
The two.

[00:28:38] Speaker 00:
The third question specifically related to the whole question of accuracy.

[00:28:42] Speaker 00:
And that's sort of a case-specific question here.

[00:28:44] Speaker 00:
We have in O'Neill our case where we sort of at least hit the pause button on the immediate jump to say when somebody says they're 100% certain, by God, that means it's accurate.

[00:28:56] Speaker 00:
And there was some secondary literature here

[00:29:00] Speaker 00:
And there are circuit cases outside of our circuit, which, again, cause one to at least hit the pause button before you jump to the conclusion that because somebody says, I'm 100% certain that they're right.

[00:29:13] Speaker 00:
I mean, do you take issue with that?

[00:29:18] Speaker 00:
Or do you acknowledge that when we look at what Ms.

[00:29:21] Speaker 00:
Kiriakos said, that that's got to be factored into the whole range of other things, and that that is not determinative?

[00:29:29] Speaker 01:
It's not determinative, Your Honor.

[00:29:31] Speaker 01:
I would agree.

[00:29:32] Speaker 01:
I think the gist of what you're saying may be this may be the least important factor.

[00:29:37] Speaker 00:
I'm getting at something like that.

[00:29:39] Speaker 00:
That's what we would say.

[00:29:40] Speaker 01:
I think I don't have a problem with saying it's the least important factor.

[00:29:43] Speaker 01:
I think we may have said that in the district court, too.

[00:29:47] Speaker 01:
So I don't think it's determinative, but none of these factors are determinative since it's a totality of the circumstances test.

[00:29:54] Speaker 01:
And even if it gets little weight, that one factor, it still weighs in our favor.

[00:30:00] Speaker 03:
Before you sit down maybe to save people some time, I think the cross-examination that everyone's looking for, I think it's in the record of appeal at volume 3, 49 to 50.

[00:30:12] Speaker 03:
I'll take a look.

[00:30:15] Speaker 00:
Thank you.

[00:30:17] Speaker 03:
And I thank my law folks for finding that.

[00:30:20] Speaker 01:
Okay.

[00:30:20] Speaker 01:
All right.

[00:30:21] Speaker 01:
Thank you all.

[00:30:22] Speaker 01:
Thank you.

[00:30:23] Speaker 01:
Appreciate it.

[00:30:32] Speaker 02:
It cannot be the case that adjusting trial strategy to account for a bad pretrial ruling for your case waives that issue for all time.

[00:30:44] Speaker 02:
Certainly, we see that with Miranda cases.

[00:30:46] Speaker 02:
You have to adjust for the fact that your client has admitted something, but that doesn't mean that later on,

[00:30:52] Speaker 02:
We can't appeal that decision to this court.

[00:30:56] Speaker 02:
And then the district court never took into account how suggestive the show up was.

[00:31:04] Speaker 02:
It's a circular thing, right?

[00:31:08] Speaker 02:
Because he's given this one person is asked, is this him?

[00:31:12] Speaker 02:
And he says, yes.

[00:31:13] Speaker 02:
But there's nothing to differentiate that man from any other person, because at that point, we don't know if he's

[00:31:21] Speaker 02:
the person who pursued him.

[00:31:22] Speaker 02:
And the fact that Sergeant Witten said he had a yellow sweater that was discarded is not a question that goes to the reliability of Mr. Quiroga's identification.

[00:31:35] Speaker 00:
Thank you.

[00:31:37] Speaker 00:
Thank you counsel.

[00:31:38] Speaker 00:
Case is submitted.