[00:00:00] Speaker 02:
The last case that we'll hear today is United States versus Hernandez.

[00:00:04] Speaker 02:
This is 23-7-0-2-4.

[00:00:10] Speaker 02:
Welcome back, Mr. Sutherland.

[00:00:12] Speaker 04:
May it please the court?

[00:00:14] Speaker 04:
My focus in this argument is really just going to be on one issue, the second proposition of error, that it was plain error for Eugene Wheat, who was the government's expert, to interject his lack of belief in Joseph Hernandez's explanation as to how the fire started.

[00:00:30] Speaker 04:
And to kind of set this up.

[00:00:33] Speaker 01:
Isn't this a classic example of asking one too many questions?

[00:00:41] Speaker 04:
Yes.

[00:00:42] Speaker 04:
I mean, hindsight's 20-20, and that's true.

[00:00:45] Speaker 01:
But one point that I would- There's no objection made?

[00:00:50] Speaker 01:
Correct.

[00:00:50] Speaker 01:
There's no motion to strike?

[00:00:52] Speaker 04:
No argument that this is plain error.

[00:00:55] Speaker 04:
And it was done?

[00:00:57] Speaker 04:
I think trial counsel is presented with a problem in a situation like this, whether to move on, whether to call attention to it.

[00:01:04] Speaker 04:
And this counsel made a choice, but I'm not making an argument that it's not plain error.

[00:01:10] Speaker 04:
One thing that I would like to bring up, and that's the concept of an evidentiary harpoon.

[00:01:17] Speaker 04:
Even though that's not something that's been talked about at length in this court, it was referenced in United States versus Hooks, albeit in a footnote.

[00:01:25] Speaker 04:
where it found such testimony as sufficiently prejudicial may form the basis for reversible error.

[00:01:32] Speaker 01:
And other states... He answered the question.

[00:01:38] Speaker 01:
The question was asked of the witness, and he answered.

[00:01:42] Speaker 01:
The question shouldn't have been asked.

[00:01:46] Speaker 01:
He got a good answer on the preceding question.

[00:01:49] Speaker 01:
Yes, it's possible.

[00:01:52] Speaker 04:
I disagree.

[00:01:54] Speaker 01:
I disagree.

[00:01:57] Speaker 04:
I think that the question was a question that could have been answered yes or no.

[00:02:01] Speaker 04:
I think we had an expert witness that was frustrated by the extensive cross-examination.

[00:02:05] Speaker 04:
We have an expert witness who was placed on notice that his opinion wasn't going to be admitted.

[00:02:10] Speaker 04:
And that's why I wanted to talk a little bit about the evidentiary harpoon, because that's something where fault is taken into account.

[00:02:18] Speaker 04:
It's something that's willfully jabbed into evidence by an experienced police officer that's not responsive to the question that's being asked.

[00:02:25] Speaker 04:
He answered more.

[00:02:26] Speaker 04:
Like I said, it was a yes or no question, and I think it should have been answered that way.

[00:02:30] Speaker 04:
But I agree.

[00:02:31] Speaker 04:
I agree that this is plain error, and I intend to argue that it's plain error.

[00:02:36] Speaker 04:
We don't have to.

[00:02:37] Speaker 02:
Let me ask you, would it have been obvious to the district court that this was a non-responsive

[00:02:48] Speaker 02:
answer, in order to follow up on Judge Kelly's question, it's one thing, you know, did this corroborate the defendant's version?

[00:02:58] Speaker 02:
That's a possible question.

[00:03:01] Speaker 02:
Prior to the question, Mr. Wheat had already said that he had never seen a lit cigarette ignite gas.

[00:03:13] Speaker 02:
He didn't believe it could happen.

[00:03:15] Speaker 02:
And so putting aside the point that I think you were discussing with Judge Kelly of whether it was one too many questions, he knew that we didn't believe that.

[00:03:27] Speaker 02:
And so then the question is, well, it kind of corroborated the boom at the next trailer home, the mother's sister.

[00:03:39] Speaker 02:
It could have kind of corroborated

[00:03:45] Speaker 02:
you know, this lit cigarette theory, right?

[00:03:50] Speaker 02:
Well, doesn't that assume that this is within the realm of reason?

[00:03:58] Speaker 02:
It's sort of like saying, well, it kind of corroborates the theory that the world is flat.

[00:04:03] Speaker 02:
Well, nothing can corroborate that because that's ridiculous.

[00:04:06] Speaker 02:
And we had already said it's ridiculous.

[00:04:08] Speaker 02:
Your expert actually said,

[00:04:10] Speaker 02:
that he had never seen a cigarette ignite gas.

[00:04:14] Speaker 02:
And then he follows up and says, well, I'd never seen gas start.

[00:04:21] Speaker 02:
And so on prong two of Plain Air, and I realize there's not a lot of briefing on prong two, would it be wrong for us to say that it wasn't obvious to the district court that this was a non-responsive answer

[00:04:38] Speaker 02:
such that the district court should have interjected and said, Mr. Wheat, that is not responsive.

[00:04:45] Speaker 02:
Doesn't this claim fail at Prom 2?

[00:04:51] Speaker 04:
I mean, I don't believe that this was invited error.

[00:04:55] Speaker 04:
I think invited error would have been a direct question.

[00:04:57] Speaker 04:
What is your opinion?

[00:04:58] Speaker 04:
I mean, you can't come back later and... That's why I'm asking about Prom 2 instead of invited error.

[00:05:08] Speaker 04:
I think since Eugene Wheat, the prosecutor actually asked the question, asked the improper question relating to his opinion and Mr. Wheat was on notice that this was something that the prosecutor was getting at that wasn't able to get in, I think that the judge was maybe put on a little bit more notice because of how that was set up and it was only a few minutes before.

[00:05:30] Speaker 04:
It was during the end of the prosecutor's direct examination and fairly soon I think into defense

[00:05:36] Speaker 04:
the defense examination.

[00:05:38] Speaker 04:
So I think under these facts, yes, I think it satisfies the plain error.

[00:05:45] Speaker 04:
Obviously, what I spent more time on was arguing about the substantial rights point, because I think it's easy to say, well, there was sufficient evidence in this case to support the conviction.

[00:05:56] Speaker 04:
And certainly the evidence was sufficient that Mr. Hernandez started this fire.

[00:06:01] Speaker 04:
The question was the degree of culpability involved in him starting the fire.

[00:06:05] Speaker 04:
But he started the fire.

[00:06:06] Speaker 02:
What about the Griffith factors on prong three of plate air?

[00:06:12] Speaker 02:
Don't we apply the Griffith factors, the strength of the evidence?

[00:06:16] Speaker 02:
Well, the strength of the evidence is pretty compelling.

[00:06:19] Speaker 02:
The mother and grandmother both said, yeah, he poured gasoline on us and lit us on fire.

[00:06:25] Speaker 02:
He says to the EMT, well, I got mad, and I shouldn't have done it.

[00:06:34] Speaker 02:
Those are pretty compelling arguments.

[00:06:38] Speaker 04:
I don't dispute that.

[00:06:39] Speaker 04:
And that's why I think I have to walk a bit of a tightrope here, because I don't think we're looking at error that would have resulted in a not guilty verdict.

[00:06:46] Speaker 04:
I do think that this was error that could have resulted in a conviction for a lesser offense, particularly in voluntary manslaughter.

[00:06:53] Speaker 04:
We have a jury that, under these facts, I think if the jury were to have accepted everything that the government had presented,

[00:07:00] Speaker 04:
would have found Mr. Hernandez guilty of first-degree murder.

[00:07:04] Speaker 04:
They did not.

[00:07:04] Speaker 04:
They did not find premeditation.

[00:07:06] Speaker 04:
And I think that when you think of the malice and the premeditation going in together, the jury very well could have found that this was not an intentional act.

[00:07:18] Speaker 02:
They could have relied on... Well, yeah, but a voluntary manslaughter... Judge Kelly, you were going to ask something.

[00:07:24] Speaker 02:
Judge Kelly?

[00:07:25] Speaker 01:
Well, I was going to say that how could they ever find it was not intentional when the two witnesses who died specifically said, you put gasoline on us and lit it.

[00:07:37] Speaker 01:
I mean, come on.

[00:07:40] Speaker 01:
You've got to take the facts as they came out.

[00:07:46] Speaker 04:
Well, and indeed, I think that based on that, one would have thought that the jury would have convicted a first degree murder, but they didn't.

[00:07:56] Speaker 04:
And I think that's because second degree murder has this broader language that malice can be interpreted as acting with callous and wanton disregard for human life.

[00:08:10] Speaker 04:
And based on that broad definition, I've had juries come back with notes between involuntary manslaughter and second degree murder.

[00:08:17] Speaker 04:
Because when you talk about second degree murder and you refer to acting with callous and wanton disregard for human life, you also have the gross negligence necessary for involuntary manslaughter.

[00:08:30] Speaker 04:
And that amounts to reckless and wanton disregard for human life.

[00:08:34] Speaker 04:
Those are very close.

[00:08:35] Speaker 04:
Non-extreme reckless and wanton disregard.

[00:08:38] Speaker 04:
It is a matter of degrees.

[00:08:40] Speaker 04:
And that's something that this court has written in opinions that it's a matter of degrees.

[00:08:43] Speaker 04:
But like I said, we've gotten jury notes back that it's not very clear on the jury as to what is gross negligence.

[00:08:51] Speaker 04:
How does gross negligence compare to wanton disregard for human life?

[00:08:55] Speaker 04:
It's fairly close.

[00:08:56] Speaker 04:
So my argument, as I say, is a thin line.

[00:08:59] Speaker 04:
I'm not suggesting that based on this evidence that the jury would have found

[00:09:03] Speaker 04:
Mr. Hernandez not guilty, but I think they very well that there's a reasonable probability that the error affected the outcome.

[00:09:10] Speaker 02:
That this one question, your argument is, that this one question with this qualification, the gasoline doesn't start, that, well, I didn't believe his account, which is, I think as you intubated, was, all that was was a reiteration of what he had just said earlier, I mean, in a different way,

[00:09:33] Speaker 02:
I've never seen, I've done this 30 years, I've never seen a lit cigarette like gasoline, not gasoline.

[00:09:42] Speaker 02:
And so then he says basically the same thing.

[00:09:45] Speaker 02:
Yeah, I didn't believe that his lit cigarette lit the gasoline.

[00:09:50] Speaker 02:
And then he says, well, why?

[00:09:52] Speaker 02:
Well, because I've never seen gasoline start.

[00:09:55] Speaker 02:
So that one little snippet, you're saying satisfied your burden.

[00:10:00] Speaker 02:
at Prong 3 to show that this undermines confidence in the jury because they would have found non-extreme reckless and wanton disregard.

[00:10:12] Speaker 02:
How would that snippet match on to a theory that this was a non-extreme reckless and wanton disregard?

[00:10:25] Speaker 00:
Your Honor, the... In other words, I think, how would we ever write this case to reverse?

[00:10:37] Speaker 04:
Judge, expert witnesses can certainly

[00:10:45] Speaker 04:
approach that.

[00:10:45] Speaker 04:
It can be obvious that that's the expert's opinion because he's stating all of these reasons why that's opinion.

[00:10:50] Speaker 04:
And I think that, as you pointed out, that was one of the reasons.

[00:10:53] Speaker 04:
I think the problem is, to my way of thinking, is there are a lot of other reasons why Mr. Wheat came to this conclusion.

[00:11:00] Speaker 04:
Eugene Wheat relied on a number of things that the jury didn't know about to come to that.

[00:11:05] Speaker 04:
In fact, I think he probably decided that Mr. Hernandez had committed this offense

[00:11:11] Speaker 04:
almost right away when he found out, looking at Mr. Hernandez's record, that he had a prior arson arrest.

[00:11:19] Speaker 04:
And it might have even been a conviction.

[00:11:20] Speaker 04:
I don't remember what he was convicted for.

[00:11:21] Speaker 04:
But anyway, there was certainly a police report that outlined the fact that he had been involved in arson before.

[00:11:26] Speaker 04:
That factor entered into the expert's opinion.

[00:11:32] Speaker 00:
With all the evidence that's one way and the attention we've been paying to this, and it's my fault.

[00:11:40] Speaker 00:
Was harmless error ever argued in this case?

[00:11:43] Speaker 00:
I just don't remember.

[00:11:48] Speaker 04:
Your Honor, I just don't remember if the language was used.

[00:11:56] Speaker 04:
I don't think so.

[00:11:58] Speaker 04:
I don't think so because I don't think I responded to it in my reply brief.

[00:12:01] Speaker 04:
No.

[00:12:02] Speaker 04:
And I probably would have.

[00:12:03] Speaker 04:
Thank you.

[00:12:04] Speaker 04:
I don't remember that.

[00:12:06] Speaker 04:
He had also talked to the medical examiner.

[00:12:08] Speaker 04:
The medical examiner had given him his opinion that it was more than likely that someone poured gasoline on at least one of these women, Frances Wright.

[00:12:19] Speaker 04:
Based on talking to witnesses, he had determined that there were two origins of the fire, which also entered into his opinion that this could not have been an accident.

[00:12:27] Speaker 04:
I just think that the word... Yeah, but he never was able to testify to that.

[00:12:30] Speaker 04:
But he wasn't, right.

[00:12:31] Speaker 04:
So these things entered into his opinion that it wasn't an accident, but it was based on things that the jury didn't hear about.

[00:12:36] Speaker 04:
So I think he went beyond the evidence by making that statement.

[00:12:40] Speaker 04:
And while he didn't exactly use the term accident by stating that he didn't believe him, I think given the fact that that was the defense, the obvious, the only defense in the case was that this was not an intentional act, I think the jury interpreted that as he had an opinion that Mr. Hernandez was lying.

[00:12:59] Speaker 04:
I have nothing further unless the court does.

[00:13:01] Speaker 02:
Judge Kelly, do you?

[00:13:04] Speaker 02:
No, thank you.

[00:13:04] Speaker 02:
Could you stop this clock?

[00:13:06] Speaker 02:
Because I don't want him to be punished.

[00:13:09] Speaker 02:
Because I had a question.

[00:13:13] Speaker 02:
And I just really, Mr. Wheat has testified to several things.

[00:13:16] Speaker 02:
And I just want to make sure that I fully understand which of those opinions that you are disputing.

[00:13:22] Speaker 02:
Where the fire originated.

[00:13:25] Speaker 02:
Are you disputing the admissibility of that?

[00:13:29] Speaker 02:
And if so, because I didn't really understand why that would even have helped, why that would have even hurt you.

[00:13:36] Speaker 04:
Not an issue, I don't think.

[00:13:38] Speaker 04:
I mean, the reason why I mentioned the two points was that that was something that the district court excluded from evidence.

[00:13:46] Speaker 02:
Not the two ignition, the point of origin right outside the breezeway.

[00:13:54] Speaker 02:
He's saying that that's where the fire probably originated.

[00:13:59] Speaker 02:
And I think that was admitted, right?

[00:14:01] Speaker 04:
I think so.

[00:14:02] Speaker 02:
But you're not disputing that.

[00:14:04] Speaker 02:
No.

[00:14:05] Speaker 02:
And then it's difficult to light a gasoline with a cigarette.

[00:14:09] Speaker 02:
I mean, your expert said that.

[00:14:11] Speaker 02:
So are you disputing the admissibility of that opinion?

[00:14:16] Speaker 04:
The entire answer.

[00:14:17] Speaker 04:
The fact that he said, I didn't believe.

[00:14:19] Speaker 04:
I mean, that's the key.

[00:14:19] Speaker 04:
Had he not said, I didn't believe.

[00:14:21] Speaker 02:
On the Hill issue, you are.

[00:14:24] Speaker 02:
Yes.

[00:14:25] Speaker 02:
But not on the, I'm talking about the Dalbert issue.

[00:14:34] Speaker 00:
You're talking about his witness.

[00:14:36] Speaker 02:
Well, I'm saying, you know, you've raised the Dalbert issue saying, Mr. Wheat, you know, testified to these three things, but you never really identified which of those opinions

[00:14:44] Speaker 02:
that you really are caring about that you think should constitute an error.

[00:14:49] Speaker 02:
And so one of those opinions was when Mr. Wheat said it's difficult to light gasoline with a cigarette, and your whole argument about it violating an FPA standard 921, are you, I'm just trying to figure out, are you disputing the admissibility of that one opinion that Wheat testified that it's difficult to light gasoline with a cigarette?

[00:15:09] Speaker 04:
I do recall, and the objection was sustained, as to the actual test, I am not objecting to his statement that he had never seen it happen, because that was certainly within his personal experience.

[00:15:21] Speaker 04:
I don't know if I'm helping.

[00:15:23] Speaker 02:
Well, it is helpful.

[00:15:25] Speaker 02:
And so the only other opinion that I saw that we was able to testify about was that the likely cause was ignition of an accelerant.

[00:15:35] Speaker 02:
And you had argued that the wheelchair and there was these other potential accelerants, are you disputing the admissibility of wheats under Daubert, that one opinion that the likely cause was ignition of an accelerant?

[00:15:50] Speaker 04:
No, I think the scientific testing supported that.

[00:15:53] Speaker 02:
So is it fair to say that of the opinions that under the Daubert issue that we testified about, you really don't have any

[00:16:02] Speaker 02:
dispute about any of the admissibility about any of those particular opinions?

[00:16:06] Speaker 04:
I don't have anything additional to offer, no, Your Honor.

[00:16:09] Speaker 04:
All right.

[00:16:10] Speaker 02:
Thank you.

[00:16:11] Speaker 02:
We'll hear from the ability.

[00:16:19] Speaker 03:
May it please the Court, I'm Jared Lehman, I represent the United States.

[00:16:23] Speaker 03:
Cutting to the heart of Defendant's Proposition 2, the

[00:16:29] Speaker 03:
Plain error standard on the arson investigator's opinion testimony, if you will, about the defendant's credibility.

[00:16:36] Speaker 03:
This case, I think, turns on the plain error standard.

[00:16:40] Speaker 03:
And candidly, I won't hide the ball from the court.

[00:16:42] Speaker 03:
I think it's error for an expert to testify that way.

[00:16:46] Speaker 03:
I think it would affect the fairness of a judicial proceeding.

[00:16:49] Speaker 03:
Whether it's plain, it's a different conversation.

[00:16:51] Speaker 03:
But the third prong of whether it affected a substantial right is, I think, where the defendant loses in this case.

[00:16:57] Speaker 02:
So you concede prongs one and two?

[00:16:59] Speaker 02:
Yes.

[00:16:59] Speaker 03:
No.

[00:17:00] Speaker 03:
Your Honor, well, let me say it this way.

[00:17:02] Speaker 03:
I concede it's error, Your Honor, and I concede that it affects the fairness of a judicial proceeding.

[00:17:07] Speaker 03:
OK.

[00:17:08] Speaker 00:
Whether it's plain.

[00:17:09] Speaker 00:
Wait.

[00:17:09] Speaker 00:
You got me confused.

[00:17:11] Speaker 00:
Run that by me again what you're conceding.

[00:17:13] Speaker 03:
Yes, Your Honor.

[00:17:14] Speaker 03:
I concede that it's error for the arson investigator to have testified he didn't believe the defendant's statement.

[00:17:21] Speaker 03:
I concede that it would, in all likelihood, affect the fairness of a judicial proceeding.

[00:17:26] Speaker 03:
Going back to Griffin, I think this court held very similarly in Griffin.

[00:17:30] Speaker 00:
Well, let me make sure further, because that was his own counsel's question to them, not the government's question to him.

[00:17:38] Speaker 00:
So you're saying that when, I'm like we're Judge Kelly, the question that should never have been asked, asked by opposing counsel, are you conceding that that's

[00:17:50] Speaker 00:
Error on your part?

[00:17:54] Speaker 03:
What I'm conceding, Your Honor, is the witness shouldn't have said what he said.

[00:17:57] Speaker 03:
Now, I think invited error takes it away from the plain error analysis.

[00:18:02] Speaker 03:
But going through just the plain error analysis, he shouldn't have said what he said on it was error and affected the fairness of the trial.

[00:18:11] Speaker 03:
Now, I don't agree that it was plain, and I don't agree that it affected a substantial right.

[00:18:15] Speaker 03:
And I'm going to tell you later that invited error removes it entirely from the plain error analysis.

[00:18:22] Speaker 03:
So, Your Honor, I don't... And if I'm confusing you, I apologize.

[00:18:25] Speaker 03:
Let me see if I can get there.

[00:18:29] Speaker 00:
I just want to know, are you giving up your case?

[00:18:32] Speaker 00:
That's what I... No, no.

[00:18:35] Speaker 03:
No, Your Honor, that's certainly not what I'm trying to do.

[00:18:37] Speaker 03:
I'm trying to go back to Griffin.

[00:18:40] Speaker 03:
And this court in Griffin, its analysis turned on prong three.

[00:18:46] Speaker 03:
of the plain error analysis.

[00:18:48] Speaker 03:
And that's what I'm trying to say is we are similar to Griffin in this case.

[00:18:52] Speaker 03:
The defendant cannot pass the effect of the substantial rights portion of the plain error analysis.

[00:18:59] Speaker 03:
That's what I'm trying to say.

[00:19:01] Speaker 03:
I'm not going to argue that what the arson investigator said was appropriate.

[00:19:05] Speaker 03:
I'm not going to argue that it didn't affect the fairness of the trial.

[00:19:09] Speaker 03:
And I will tell you that invited error will remove all that anyway, because the defendant is the one that brought this into issue.

[00:19:17] Speaker 03:
The defendant brought this issue into the trial.

[00:19:20] Speaker 03:
The defendant is the one that brought this issue before the jury.

[00:19:24] Speaker 03:
So getting into the effect of the substantial right portion, going through those analysis factors, just like this court did in Griffin,

[00:19:33] Speaker 03:
Strength of the party's case, everyone, including the defendant, agrees he started the fire.

[00:19:39] Speaker 03:
There's no dispute that the defendant started the fire.

[00:19:43] Speaker 03:
It's just a matter of whether it was an accident or whether it was an intentional act.

[00:19:46] Speaker 03:
The two dying declarations that we have for the victims that died in the fire both indicated that it was an intentional act.

[00:19:54] Speaker 03:
The defendant, one statement, I was mad I shouldn't have done it, can be read very simply, I done it, is clearly an admission of an intentional act.

[00:20:03] Speaker 03:
His other statement is a false exculpatory statement, candidly.

[00:20:06] Speaker 03:
I was cleaning with gasoline.

[00:20:08] Speaker 03:
I had a cigarette.

[00:20:08] Speaker 03:
And then there was an explosion.

[00:20:10] Speaker 03:
So the defendant's statements can't even exist in the same plain.

[00:20:14] Speaker 03:
So the strength of the government's case is overwhelming in this case.

[00:20:18] Speaker 03:
Did it affect the defendant's theory of the case?

[00:20:20] Speaker 03:
I don't know that it did.

[00:20:22] Speaker 03:
The defendant couldn't even support his own theory of the case with his contradictory statements.

[00:20:28] Speaker 03:
Additionally, as we briefed to the court,

[00:20:31] Speaker 02:
The question I have is, without the defendant testifying, what was the defendant's theory of the case?

[00:20:43] Speaker 03:
Well, it's kind of a fascinating situation.

[00:20:48] Speaker 03:
The United States not called Gene Weed at all.

[00:20:50] Speaker 03:
That false exculpatory statement would have never made it into the record.

[00:20:54] Speaker 03:
The only statements that would have made it into the record were the dying declarations of the two victims, and then the defendant's statement to the EMTs, I was mad and I shouldn't have done it.

[00:21:05] Speaker 03:
The false exculpatory statement absent Gene Weed wouldn't have come into the record.

[00:21:08] Speaker 02:
I understand all that, but I'm not trying to be mean, but I'm still not sure that that answers my question.

[00:21:15] Speaker 02:
Because one of the Griffith factors that you're pointing out is,

[00:21:18] Speaker 02:
the effect on the defendant's theory of the case.

[00:21:22] Speaker 02:
And so for us to meaningfully apply that Griffith factor, I have to know, well, what was the defendant's theory of the case?

[00:21:29] Speaker 02:
You're the one making that argument on the second Griffith factor.

[00:21:33] Speaker 02:
So what do you think in applying the argument you just made was the defendant's theory of the case?

[00:21:40] Speaker 03:
I'll admit it was an accident.

[00:21:41] Speaker 03:
The defendant's theory of the case is it was an accidental fire.

[00:21:44] Speaker 03:
However,

[00:21:45] Speaker 03:
What effect did the arson investigator, Mr. Wheat's statement, have on the defendant's case?

[00:21:51] Speaker 03:
And I would argue it has a very minimal effect on the defendant's case, given the defendant's own contradictory statements about his theory of the case.

[00:21:59] Speaker 03:
So anything that Gene Wheat, the arson investigator, may have testified to, couldn't have negatively impacted the defendant's theory of the case, because he negatively impacted his own theory of the case.

[00:22:09] Speaker 00:
Are you saying there was no prejudice

[00:22:15] Speaker 00:
The third prong of plain error, on the facts that we've heard in opposing counsel's argument, where is the prejudice?

[00:22:30] Speaker 03:
Your Honor, I don't see where this did affect a substantial right.

[00:22:33] Speaker 03:
And going through the factors in Griffin, there was no prejudice to the defendant based on this statement.

[00:22:40] Speaker 03:
It simply existed in the same space as the defendant's already prior and consistent statement about the fire.

[00:22:47] Speaker 03:
So there's absolutely no prejudice to the defendant in this case.

[00:22:51] Speaker 02:
But you told us that early on in the first minute or two that you're conceding that the answer that Mr. Wheat gave to defense counsel undermined the fairness of the process.

[00:23:03] Speaker 02:
We have Griffith, but we also have a number of published cases that say Prong 3 is designed to determine whether or not the obvious error undermined confidence in the outcome.

[00:23:15] Speaker 02:
You didn't concede those words, undermined confidence in the outcome,

[00:23:20] Speaker 02:
But I'm having trouble understanding, well, what is the difference between our language and our presidential opinions undermining confidence in the outcome with your concession that this answer did undermine the fairness of the process?

[00:23:36] Speaker 02:
Well, back to Judge Baldock's question, you have, I think, a very persuasive argument about the Griffith factors.

[00:23:43] Speaker 02:
But I wonder if you're in your first two minutes, you basically

[00:23:47] Speaker 02:
in effect, conceded satisfaction of what we have described as the overarching standard for the

[00:23:54] Speaker 02:
third prong of plain error.

[00:23:56] Speaker 03:
No, Your Honor, I don't think that this comment changed the outcome of the trial.

[00:24:01] Speaker 03:
This case, as the court was discussing earlier with the appellant, was never going to be about involuntary manslaughter.

[00:24:08] Speaker 03:
Given the strength of the government's case, involuntary manslaughter was never going to be there.

[00:24:12] Speaker 03:
And acquittal was never going to be there.

[00:24:14] Speaker 03:
So did it change the course of the case?

[00:24:17] Speaker 03:
Not even talking about an acquittal, but did it change some sort of lesser included theory that the defendant may have had?

[00:24:22] Speaker 03:
Absolutely not.

[00:24:23] Speaker 03:
So the confidence in the conviction itself wasn't implicated by anything that Mr. We testified to.

[00:24:33] Speaker 03:
Lastly, Your Honor, I would like to discuss invited error in this case, and I believe it's set out in the brief.

[00:24:39] Speaker 03:
But, Your Honor, I read the invited error doctrine to remove

[00:24:43] Speaker 03:
any error from the plain error analysis.

[00:24:46] Speaker 03:
And in this case, the defendant clearly invited this testimony into the record.

[00:24:51] Speaker 03:
And if you look at the direct examination of investigator wheat, the defendant, the defense counsel,

[00:24:56] Speaker 03:
objected to a very similar question that the attorney for the United States asked in this case.

[00:25:02] Speaker 03:
So if we look at whether this was an intended, invited, or an intentional waiver, if you will, the defendant clearly objected to a very similar question to this during Gene Leach's direct examination.

[00:25:14] Speaker 03:
So the defendant's clearly bringing this in, clearly inviting this error.

[00:25:20] Speaker 03:
He's doing it intentionally.

[00:25:21] Speaker 03:
So, Your Honor, as I would submit to the court, that that invited error just removes this altogether from any sort of plain error.

[00:25:27] Speaker 03:
And to the extent that plain error analysis remains, Your Honor, I think the United States prevails on the third prong of that plain error analysis in that it did not affect the substantial right of the defendant.

[00:25:43] Speaker 02:
Thank you.

[00:25:43] Speaker 02:
Thank you, Your Honor.

[00:25:45] Speaker 02:
Judge Kelly, do you have any questions?

[00:25:50] Speaker 02:
No, I don't.

[00:26:03] Speaker 04:
Very briefly, my position is it's not invited error, and this is because the definition of invited error

[00:26:12] Speaker 04:
as quoted from the United States versus D. Barry 430 F.

[00:26:14] Speaker 04:
3rd 1294 at page 1302 is, invited error is nothing more, nothing less than the legal recognition of the common sense notion that a defendant can't complain when he gets what he asked for.

[00:26:28] Speaker 04:
The invited error doctrine precludes a party from arguing that the district court erred and adopting a proposition that the party has urged the district court to adopt.

[00:26:36] Speaker 04:
That's not what we have here.

[00:26:38] Speaker 04:
There was a recent case, and I don't remember the name of it off the top of my head,

[00:26:41] Speaker 04:
where I think defense counsel objected to an instruction that he had asked for.

[00:26:45] Speaker 04:
That's the degree, I think, that invited error applies to, and that doesn't apply in this case.

[00:26:55] Speaker 04:
The government mentioned, and I don't know if this matters to the court, regarding the defendant's statement and how he wouldn't even had that to go on had his exculpatory statement not been admitted, the hearsay not been admitted.

[00:27:12] Speaker 04:
Had that not gotten in, I think, probably in order to pursue the defense, that it was an accident in this case, I think the defendant would have had to testify.

[00:27:19] Speaker 04:
I think because that evidence got in, he didn't have to testify.

[00:27:23] Speaker 04:
Undermining fairness versus confidence in the outcome.

[00:27:29] Speaker 04:
I think this probably, to my way of thinking, and that's why I talked about the harpoon, is it comes down to whether this answer is responsive or not.

[00:27:38] Speaker 04:
And it was not responsive.

[00:27:39] Speaker 04:
Thank you.

[00:27:41] Speaker 02:
Judge Kelly.

[00:27:45] Speaker 01:
Very responsive.

[00:27:46] Speaker 02:
I have nothing further to add.

[00:27:50] Speaker 02:
Thank you.

[00:27:51] Speaker 02:
This matter is submitted, and the remaining two cases will be taken up based on the briefs.

[00:28:00] Speaker 02:
Thank you both, counsel, for your advocacy.

[00:28:03] Speaker 02:
The court is adjourned, subject to recall.