[00:00:01] Speaker 03:
Next case this morning is United States versus Key, 23-2189.

[00:00:10] Speaker 03:
Counsel for appellant, if you would make your appearance and proceed.

[00:00:19] Speaker 00:
Good morning.

[00:00:20] Speaker 00:
I'm Dean Sandiford from the Federal Defenders, and I'm here for Christopher Key.

[00:00:25] Speaker 00:
The sole issue in this appeal is whether Mr. Key is entitled to reversal due to the government's repeated violations of his due process rights under Doyle versus Ohio.

[00:00:33] Speaker 00:
And at this point, the dispute between the parties is fairly narrow.

[00:00:37] Speaker 00:
The government concedes that it plainly violated Doyle by repeatedly telling the jury that Mr. Key had never told his story before trial and made it up on the stand.

[00:00:46] Speaker 00:
Their only claim is that these violations weren't prejudicial, and that's wrong for several reasons.

[00:00:52] Speaker 00:
This case was a credibility contest between Ms.

[00:00:54] Speaker 00:
Chinchilla's and Mr. Key.

[00:00:56] Speaker 00:
Mr. Key's claim of self-defense had support, especially in light of Ms.

[00:01:01] Speaker 00:
Chinchilla's prior conviction for assaulting him.

[00:01:04] Speaker 00:
And the Doyle violations were extremely damaging because they invited the jury to draw the natural and damning inference that if Mr. Key were truly innocent, he would have spoken up long before trial.

[00:01:16] Speaker 00:
The government mainly claims that the violations weren't prejudicial because it achieved the same

[00:01:21] Speaker 00:
impeachment impact by pointing out that Mr. Key never reported Ms.

[00:01:25] Speaker 00:
Chinchilla's abuse before he was arrested.

[00:01:28] Speaker 00:
But that impeachment was a wash because Ms.

[00:01:30] Speaker 00:
Chinchilla's was impeached in the same way, and it's weak impeachment anyway because jurors naturally understand why someone might be hesitant to report their romantic partner to the police.

[00:01:41] Speaker 00:
The Doyle violations, on the other hand, were one-sided, and they were far more damaging.

[00:01:46] Speaker 00:
They invited the jury to infer that if Mr. Key was truly innocent, he would have spoken up before trial.

[00:01:52] Speaker 00:
This is an extremely damaging inference because, as the Supreme Court said in Hale, jurors will naturally think that an innocent person would not just sit silent when accused of a serious crime.

[00:02:03] Speaker 00:
They'd do the opposite.

[00:02:05] Speaker 00:
They would loudly and strenuously assert their innocence.

[00:02:10] Speaker 03:
This point about they jurors would understand that somebody would not be inclined to report their romantic partner.

[00:02:18] Speaker 03:
Is that just something that you're saying or is there some foundation in the record for that?

[00:02:24] Speaker 03:
Because it's not clear to me.

[00:02:25] Speaker 03:
I wouldn't drop a dime on my romantic partner.

[00:02:28] Speaker 03:
So I mean, why do you believe that that's true?

[00:02:31] Speaker 00:
Well, I just think it happens a lot.

[00:02:34] Speaker 00:
We see this in a lot of cases where people don't report abuse.

[00:02:37] Speaker 00:
But there's nothing in the record about that.

[00:02:40] Speaker 00:
There's nothing in the record.

[00:02:41] Speaker 00:
And I think our stronger argument on that point anyway is that both of them are impeached in this way.

[00:02:45] Speaker 00:
The jury also heard that Ms.

[00:02:47] Speaker 00:
Chinchillas didn't contemporaneously report abuse.

[00:02:50] Speaker 00:
So even if this type of impeachment was effective for these jurors, it applied to both witnesses in the same way.

[00:02:56] Speaker 00:
and didn't give the government any advantage.

[00:02:59] Speaker 00:
The Doyle violations were very different because those were one-sided.

[00:03:02] Speaker 00:
Those were only against Mr. Key.

[00:03:04] Speaker 00:
And it's a far more damaging inference because, again, as the Supreme Court said in Hale, people naturally expect someone who's accused of a serious crime but didn't commit it to speak up and say, hey, I didn't do that, or I was acting in self-defense.

[00:03:19] Speaker 00:
So when a person comes in for the first time at trial and the prosecutor exploits that and says, you're telling this story for the first time at trial, that's going to surprise jurors.

[00:03:27] Speaker 00:
And it's going to make them think that the person is not telling the truth, because who would wait until that moment to first claim that they acted in self-defense?

[00:03:38] Speaker 02:
Is our review here for plain error?

[00:03:42] Speaker 02:
Yes, it is.

[00:03:44] Speaker 02:
So you have to show a reasonable probability

[00:03:49] Speaker 02:
that the outcome would have been different.

[00:03:57] Speaker 02:
I'm just having trouble from the evidence in this case.

[00:04:01] Speaker 02:
And the nuanced argument you make about whether or not Doyle was violated, which is kind of subtle in some ways, I'm having difficulty whether you've established

[00:04:17] Speaker 02:
a reasonable probability, not possibility, but probability that the outcome would have been different.

[00:04:23] Speaker 02:
So address that.

[00:04:25] Speaker 00:
Sure.

[00:04:25] Speaker 00:
I have several things to say about that.

[00:04:28] Speaker 00:
The first is that this was a close case in the sense that this was a credibility contest.

[00:04:34] Speaker 00:
The only people who were there that night were Ms.

[00:04:36] Speaker 00:
Chinchilla and Mr. Key, and they gave widely divergent stories about what happened.

[00:04:41] Speaker 00:
that the physical evidence in the case, namely her injuries in the medical testimony, did not refute his claim of self-defense.

[00:04:48] Speaker 00:
The doctor testified that the wound on her palm was typically a defensive wound of the type that would be typically defensive, but he said he didn't ask her for details.

[00:04:58] Speaker 00:
And it's just as consistent with Mr. Key's story that she grabbed the knife as she was trying to wrest it away from him.

[00:05:06] Speaker 00:
That wound could have happened in exactly the same way.

[00:05:10] Speaker 00:
Third,

[00:05:11] Speaker 00:
This wasn't just one Doyle violation.

[00:05:13] Speaker 00:
These were repeated Doyle violations.

[00:05:16] Speaker 00:
Even under the government's counting, they happened during cross-examination, initial closing, and rebuttal closing.

[00:05:23] Speaker 00:
And this court has said time and again that when a prosecutor leans into an argument like this in closing, that that highlights the evidence for the jury and increases the likelihood of prejudice.

[00:05:33] Speaker 00:
Third, Mr. Key's claim of, well I guess I'm falling forth now, but Mr. Key's claim of self-defense was plausible, particularly in light of Ms.

[00:05:45] Speaker 00:
Chinchilla's prior conviction for assaulting him.

[00:05:48] Speaker 00:
So the motel manager who was present for at least part of this assault testified to this.

[00:05:53] Speaker 00:
He said that she seemed to be the aggressor.

[00:05:56] Speaker 00:
She was the one who was trying to keep the fight going and that she didn't seem afraid of him.

[00:06:01] Speaker 00:
This motel manager had no interest whatsoever in this case.

[00:06:03] Speaker 00:
He didn't know either of the parties, a completely disinterested witness who came in and testified that for that incident, she was the aggressor and wasn't afraid of him, which lends significant support to his claim of self-defense in this case.

[00:06:18] Speaker 03:
Does the constitutional nature of this violation have any role to play in the plain error analysis here?

[00:06:25] Speaker 00:
Well, this court has said that plain error applies less rigidly in that context.

[00:06:31] Speaker 00:
I don't know that the cases have really elaborated on that.

[00:06:34] Speaker 00:
But there is, at least theoretically, a little bit more leeway when you're dealing with a constitutional error.

[00:06:45] Speaker 00:
Say a few words.

[00:06:47] Speaker 00:
Sorry, go ahead.

[00:06:48] Speaker 00:
The trial counsel in this case.

[00:06:50] Speaker 00:
I was not, no.

[00:06:51] Speaker 00:
I was not trial counsel.

[00:06:52] Speaker 00:
I'd like to say just a couple of words about the split verdict, which is something that the government emphasizes in its brief.

[00:06:58] Speaker 00:
And I have a few responses to that.

[00:07:00] Speaker 00:
The first is that the verdict is irrelevant to the prejudice inquiry under Kristina Gonzalez, which says that it's objective and based solely on the trial record.

[00:07:08] Speaker 00:
And the reason for that is we don't know what happened in the jury room.

[00:07:11] Speaker 00:
There's always concerns that the jury could have acted irrationally.

[00:07:14] Speaker 00:
So we disregard what the jury's verdict is and look solely to the evidence to decide whether or not there was prejudice.

[00:07:23] Speaker 00:
But if you're going to look into it at all, the jury verdict actually makes a lot of sense, even assuming that these door violations had a lot of impact on the trial.

[00:07:33] Speaker 00:
Because counts one, three, and four, those were the counts that he was acquitted on.

[00:07:38] Speaker 00:
As even the government agrees, they had independent weaknesses, just the government's proof itself, lack of corroborating evidence

[00:07:44] Speaker 00:
an expert who contradicted the complaining witnesses' claims.

[00:07:49] Speaker 00:
Count 2 was very different because Count 2, Mr. Key admitted to the stabbing.

[00:07:54] Speaker 00:
He said it happened in self-defense.

[00:07:55] Speaker 00:
And for the jury to credit that, they would have to give some credence to his claim of self-defense.

[00:08:00] Speaker 00:
So if the jury, if the Doyle violations undermined his credibility in a very significant way, they would only affect Count 2.

[00:08:09] Speaker 00:
Count one and three and four had separate problems.

[00:08:12] Speaker 00:
The jury didn't even have to look at his testimony to decide whether or not they had a reasonable doubt about those counts.

[00:08:22] Speaker 00:
I'd also like to speak for a minute about these statements were, the government points this out, these statements were more general, that he didn't tell his story until trial, which encompassed periods both after his arrest and before his arrest.

[00:08:39] Speaker 00:
But that's exactly what happened in Brecht.

[00:08:42] Speaker 00:
Brecht, the questions were exactly the same.

[00:08:45] Speaker 00:
The defendant was asked whether he had told his story that the shooting was an accident in that case before trial, and then the prosecutor argued that same thing in closing arguments, which is exactly what happened here, and I believe is why the government has conceded plain error on those points.

[00:09:08] Speaker 00:
I mean, unless the court has further questions, I think I've made my main points.

[00:09:12] Speaker 00:
And I think the briefs are pretty clear.

[00:09:14] Speaker 00:
And I'd be happy to reserve the remainder of my time.

[00:09:18] Speaker 00:
OK.

[00:09:19] Speaker 00:
Thank you.

[00:09:31] Speaker 01:
Good morning, Your Honors.

[00:09:32] Speaker 01:
May it please the court, Amel Keeney for the United States.

[00:09:37] Speaker 01:
As Mr. Sandover correctly said, we have conceded the first two prongs of the plain error test, and that is because of the statement in Brecht.

[00:09:46] Speaker 03:
Well, do you concede the fourth prong, too?

[00:09:48] Speaker 03:
You didn't make an argument about it.

[00:09:50] Speaker 01:
I didn't feel like if you found the third prong against us that we would have much chance of succeeding on the fourth prong.

[00:09:57] Speaker 01:
So yes, we are conceding that as well, assuming if you find prong three against us.

[00:10:03] Speaker 01:
Yes, I got that.

[00:10:07] Speaker 01:
Prong 3 is where everything happens in this case.

[00:10:12] Speaker 01:
And so the reason we think Prong 3 hasn't been satisfied here, there's two principal reasons.

[00:10:21] Speaker 01:
First, I'll address the argument that Mr. Sanderford raised for the first time in his reply brief, which is, look, what he's saying is the prejudicial impact is that once you're

[00:10:37] Speaker 01:
charged with a crime.

[00:10:38] Speaker 01:
A jury may understand why you don't report your significant other romantic partner to the police.

[00:10:46] Speaker 01:
But once you're charged with a crime, a jury would expect you to proclaim your innocence.

[00:10:51] Speaker 01:
And this is a damaging inference that the Doyle violations caused.

[00:10:58] Speaker 01:
And I would just say to that, that if the test on plain error is but for the error, what would have happened?

[00:11:06] Speaker 01:
So if the error had been called out, we still, and the judge had said, you can't talk about post arrest silence.

[00:11:16] Speaker 01:
We still could have talked about that inference that he failed to protest his innocence of the charges.

[00:11:24] Speaker 01:
And the reason for that is he testified, Mr. Key testified, that he became aware of the federal arrest warrant on this case in January of 2021.

[00:11:36] Speaker 01:
But he was not arrested.

[00:11:38] Speaker 01:
In that testimony, I'm sorry, that's at volume 5 of the record, pages 505 to 6 and 524 to 25.

[00:11:49] Speaker 01:
That he was not arrested, though, until April of 2021.

[00:11:53] Speaker 01:
So that's about a two or three month period.

[00:11:56] Speaker 02:
Wouldn't that be because he kind of disappeared?

[00:11:59] Speaker 01:
You know, the testimony wasn't clear on that.

[00:12:01] Speaker 01:
I think our prosecutor was trying to establish that.

[00:12:04] Speaker 01:
I don't know that he did.

[00:12:05] Speaker 01:
He suggested that.

[00:12:07] Speaker 01:
And Mr. Key testified.

[00:12:08] Speaker 02:
Did you ever argue that flight was an evidence of guilt here?

[00:12:11] Speaker 01:
No.

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

[00:12:13] Speaker 01:
Mr. Key testified that he was just out working.

[00:12:16] Speaker 01:
Because he testified he worked out of town a lot.

[00:12:19] Speaker 01:
So no, we did not argue flight as an inference.

[00:12:21] Speaker 01:
And that's not what I'm arguing today.

[00:12:23] Speaker 01:
What I'm arguing today is if he learned the police are looking for him for this charge of assaulting and stabbing his girlfriend,

[00:12:33] Speaker 01:
a jury could properly have been told at that point that he should have said, or a prosecutor could have asked him then, why didn't you say, I'm the victim here?

[00:12:43] Speaker 02:
He didn't have a chance, because the prosecutors hadn't contacted him.

[00:12:47] Speaker 02:
He didn't have a chance to tell the prosecutors that, because he had no interaction with them.

[00:12:53] Speaker 02:
Unless you think he should have sought them out.

[00:12:56] Speaker 02:
And frankly, there's a lot of people, probably most people, that simply would say,

[00:13:01] Speaker 02:
Me seek out a police officer simply to say I'm not guilty of a crime that I haven't been charged with.

[00:13:06] Speaker 02:
I don't think I'll do that.

[00:13:07] Speaker 01:
Well, the point, my point is he was charged with it at that time and he knew that there was a federal arrest warrant on those charges at that time as he testified at trial.

[00:13:16] Speaker 01:
How did he know that?

[00:13:17] Speaker 01:
Pardon?

[00:13:17] Speaker 02:
How did he know that?

[00:13:18] Speaker 01:
He didn't explain how he knew that, but he said he testified at the pages I gave you.

[00:13:22] Speaker 01:
I learned in January, 2021 that there was this arrest warrant out for me.

[00:13:28] Speaker 03:
Okay, let me understand the argument.

[00:13:30] Speaker 03:
So you're saying that on prong three, that what we could do is perceive that the government could have just as well used that same, the Doyle comments.

[00:13:45] Speaker 03:
It could have uttered those comments and the jury could have understood them as relating to his pre-arrest behavior.

[00:13:53] Speaker 01:
I'm saying if the error had been

[00:13:55] Speaker 01:
If either the district court had suesponte noticed the error or it had been brought to the court's attention, then the prosecutor would have been instructed not to talk about post-arrest silence, but still could have talked about these other issues.

[00:14:09] Speaker 01:
That's what I'm saying.

[00:14:12] Speaker 03:
What authority do you have?

[00:14:14] Speaker 03:
That's a fairly nuanced and, if it strikes me, novel sort of

[00:14:19] Speaker 03:
I mean, what authority do you have for us doing that?

[00:14:23] Speaker 03:
I mean, ordinarily what we do is we just say, I mean, that presumes, well, if the error had been brought to the court's attention, well, it wasn't brought to the court's attention.

[00:14:33] Speaker 03:
So what our cases tell us to do is look at but for this error, the focus being the error in the totality of the circumstances, you know, is there a reasonable likelihood that the result would have been different?

[00:14:47] Speaker 03:
This sort of notion of looking at what the questioning could have permissibly gone to, what authority do you have for that?

[00:14:56] Speaker 03:
Because that seems to me that's a different sort of analysis than the one we ordinarily undertake on prong three.

[00:15:03] Speaker 01:
Well, I mean, I thought about that and preparing for this argument.

[00:15:08] Speaker 01:
And the only thing I can think of is that sometimes in this court, when cases of sentencing error, the court will sometimes say,

[00:15:15] Speaker 01:
If this had been brought to the court's attention, the court would have done x, y, or z. And that's what's likely on the facts of this case.

[00:15:23] Speaker 01:
So by analogy, I'm thinking if the error had been pointed out and the court had ruled no, Mr. AUSA, you cannot talk about post-arrest silence.

[00:15:35] Speaker 01:
I think it's not realistic to assume that the prosecutor would have just then, oh, I just have thrown up his hands and said, oh, I can't talk about anything to do with this.

[00:15:45] Speaker 01:
He had things he could say with respect to the pre-arrest of silence.

[00:15:49] Speaker 01:
And in fact, he did talk about it with respect to the failure to talk to the police.

[00:15:54] Speaker 02:
I just had trouble rubbing my hand around your argument about pre-arrest silence, because he didn't have contact with the officers then.

[00:16:03] Speaker 02:
And so I don't have any, it doesn't seem to me he had any good, easy opportunity to make a statement.

[00:16:10] Speaker 02:
And so I just don't think a jury would feel that carried

[00:16:14] Speaker 01:
Well, we don't we don't know one way or the other what what opportunity he had he but he He didn't explain how he became aware of it, but he became aware that law enforcement was looking after him Looking for him based on on this warrant.

[00:16:32] Speaker 02:
That's all we know I think Your statement that will the prosecutor it could have said

[00:16:37] Speaker 02:
You never volunteered that statement before he was arrested.

[00:16:41] Speaker 02:
I don't think a prosecutor is likely to have made that argument.

[00:16:44] Speaker 02:
It just doesn't strike me as having any force.

[00:16:48] Speaker 01:
Well, in his reply brief, defense counsel says that would be a powerful argument to say that once you learn of charges, that the jury would be impressed by that, that you didn't stand up and say, wait, I didn't do any of this.

[00:17:03] Speaker 01:
I'm the victim here, not her.

[00:17:06] Speaker 01:
So I think there is authority to, I would rely on Hale for that.

[00:17:13] Speaker 01:
But I mean, to some extent, on plain error review, you're thinking about a counterfactual in all of these cases.

[00:17:20] Speaker 03:
Well, you are.

[00:17:21] Speaker 03:
But I mean, now I'm trying to think through as well, again, anew this argument that you're making.

[00:17:29] Speaker 03:
And it seems to me, if I understand it then, it's predicated on the notion

[00:17:33] Speaker 03:
If this error had been brought to the court's attention, the court could have essentially said that you, prosecutor, cannot talk about post-arrest silence, but you can talk.

[00:17:44] Speaker 03:
And then the prosecutor would have said, OK, fine.

[00:17:47] Speaker 03:
Well, I'll talk about the pre-arrest time when he knew about the warrant.

[00:17:52] Speaker 01:
Right.

[00:17:53] Speaker 01:
I think that's the most realistic thing.

[00:17:54] Speaker 03:
OK.

[00:17:55] Speaker 03:
All right.

[00:17:55] Speaker 03:
Well, that chain of events, pre-arrest

[00:18:00] Speaker 03:
presupposes action that the court would take when error is brought to its attention.

[00:18:10] Speaker 03:
Well, usually under the third prong of

[00:18:14] Speaker 03:
of plain error, we're not looking at what the court would do, we're looking at what the jury would do.

[00:18:20] Speaker 03:
We're saying that in the event that you remove the error, this is what, you know, is there reasonable probability that the jury's activity would have been different.

[00:18:30] Speaker 03:
And so the focus is different.

[00:18:33] Speaker 03:
It's focused on the jury's conduct, not the court's conduct.

[00:18:36] Speaker 03:
What you're talking about is remedial action by the court, and then what the government prosecutor would likely do in response to the remedial action.

[00:18:47] Speaker 03:
I mean, that's a whole different lens, isn't it?

[00:18:50] Speaker 01:
Well, I think that where I'm coming from on this is thinking about it as the plain error

[00:18:58] Speaker 01:
I mean, the concept of plain error is that it's the court's error.

[00:19:02] Speaker 01:
And so we think about what would have happened if the court had noticed this error and done things correctly.

[00:19:09] Speaker 01:
And now there's a lot of cases where I think you're correct.

[00:19:12] Speaker 01:
For example, if we had a pure Doyle case, if you contrast it with that, where in Doyle the facts were police set up, helped to set up, and then watch the drug transaction take place.

[00:19:24] Speaker 01:
And then you had an arrest immediately thereafter.

[00:19:27] Speaker 01:
then I don't think we would have any argument in that situation if the prosecutor said, hey, you didn't tell the police who arrested you.

[00:19:33] Speaker 01:
Because there's no period of time in which the defendant could have made a statement explaining himself to anyone that did not postate his Miranda rights being read to him.

[00:19:49] Speaker 02:
So I think- He was Miranda's right during that initial police encounter, and pretty much as soon as they

[00:19:56] Speaker 02:
said you're under arrest.

[00:19:57] Speaker 02:
He was given, he was merendized twice, as I understand it, once in the preliminary hearing and once at the time of the arrest.

[00:20:03] Speaker 01:
In Doyle?

[00:20:04] Speaker 01:
Yeah, I believe that's correct.

[00:20:05] Speaker 02:
No, I mean here in Oregon.

[00:20:06] Speaker 01:
Oh, here?

[00:20:08] Speaker 01:
Yeah.

[00:20:08] Speaker 01:
I don't know what happened at arrest.

[00:20:10] Speaker 01:
The record doesn't say exactly what happened at arrest.

[00:20:13] Speaker 01:
But there were two arraignments.

[00:20:15] Speaker 01:
Mr. Key was arrested in Colorado and brought in for arraignment.

[00:20:18] Speaker 01:
And at that arraignment, the court read his rights to him.

[00:20:22] Speaker 01:
And then he was brought to New Mexico about two weeks later.

[00:20:26] Speaker 01:
And the court did that again, said you have the right to remain silent.

[00:20:29] Speaker 02:
Both times the advice was on an arraignment?

[00:20:33] Speaker 01:
Correct.

[00:20:34] Speaker 02:
OK.

[00:20:37] Speaker 02:
So you used, boy, I thought I remembered that the officers told him during the arrest that he had the right to remain silent.

[00:20:51] Speaker 02:
That's just not correct, apparently.

[00:20:53] Speaker 01:
I don't remember that, Your Honor.

[00:20:56] Speaker 01:
I mean, they may well have done so.

[00:20:59] Speaker 01:
And it was probably the same day.

[00:21:01] Speaker 02:
That's the only time I could imagine a credible argument that if he were innocent, he would have said so then.

[00:21:08] Speaker 02:
And I guess the prosecutor could make that argument then, couldn't he?

[00:21:14] Speaker 01:
Could make what?

[00:21:15] Speaker 02:
Couldn't the prosecutor, either he or she, have made the argument that he did not state at the time of the arrest, hey, why are you

[00:21:25] Speaker 02:
arresting me, she's the aggressor here.

[00:21:28] Speaker 01:
Not if his Miranda rights were read at the arrest, Your Honor.

[00:21:32] Speaker 01:
The prosecutor could not.

[00:21:35] Speaker 01:
If the Miranda rights, I think it's more of an unclear issue if the Miranda rights had not been read to him at arrest.

[00:21:42] Speaker 02:
I misunderstood your answers.

[00:21:46] Speaker 02:
We've been two trains passing in the night.

[00:21:49] Speaker 02:
He was Mirandized at the time of the arrest.

[00:21:52] Speaker 01:
No, I don't know one way or the other, Your Honor.

[00:21:55] Speaker 01:
But there was no testimony at trial about how the arrest went down.

[00:21:59] Speaker 01:
I don't see anything else in the record.

[00:22:01] Speaker 01:
But he was told at his arraignment on April 1st of 2021 that he had the right to remain silent.

[00:22:09] Speaker 01:
I believe there is authority.

[00:22:10] Speaker 01:
I don't remember what it is, but that the court's giving of that warning is just as valid or effective.

[00:22:21] Speaker 03:
I would hope so.

[00:22:23] Speaker 01:
Yeah, I'm not arguing that that's any different.

[00:22:26] Speaker 03:
I'm just saying I don't know what happened.

[00:22:28] Speaker 03:
I mean, I would hope it would be as powerful as an agent giving that advisement.

[00:22:32] Speaker 01:
That's the same.

[00:22:33] Speaker 03:
But the point I'm making is this is a different fact than the one one might ordinarily see, because the doilier here is predicated on his silence after the two advisements that he received from judicial officers.

[00:22:48] Speaker 01:
That's correct.

[00:22:49] Speaker 01:
Yes, sir.

[00:22:50] Speaker 03:
All right.

[00:22:51] Speaker 01:
That's correct.

[00:22:51] Speaker 01:
And the prosecutor's statements that we admitted violate Doyle, they cross that line, and that's breached.

[00:22:59] Speaker 02:
What they're saying is that there's simply saying, this is the first time we've heard that.

[00:23:07] Speaker 02:
But then apparently, they could have said validly he didn't make that argument at the time of the arrest.

[00:23:17] Speaker 01:
If his Miranda rights weren't read at the time of his arrest, I think they could make that argument.

[00:23:23] Speaker 01:
But if they were read, he could not.

[00:23:25] Speaker 01:
But we don't know one way or the other in this case what happened at the arrest.

[00:23:28] Speaker 02:
We don't even know for sure that he could have made that argument, because just because your Miranda rights haven't been read to you doesn't mean you don't have them.

[00:23:37] Speaker 02:
So once he was confined at the arrest, even though his rights weren't read, he has those Miranda rights, which is not to be

[00:23:47] Speaker 02:
required to testify unless he is advised to contrary.

[00:23:53] Speaker 01:
He has those rights, but Doyle is triggered by the giving of the Miranda rights, because the basis of Doyle is to say, look, we've implicitly promised you, Mr. Defendant, that you don't have to talk, and you're not going to be penalized for not talking after this point.

[00:24:09] Speaker 03:
Could you remind me, do I understand correctly, there are two of the five statements that you claim are not Doyle-Air?

[00:24:16] Speaker 01:
That's correct.

[00:24:17] Speaker 03:
And if you can just briefly remind me, what's your premise for why they're not Doyle-Air?

[00:24:23] Speaker 01:
Well, there's one during the closing to the effect that the defense attorney, where the prosecutor said, look, the defense attorney doesn't even know his own client's story.

[00:24:32] Speaker 01:
And that's, I see them in red.

[00:24:35] Speaker 01:
Go ahead, please, I ask the question.

[00:24:38] Speaker 01:
Yes, sir.

[00:24:39] Speaker 01:
The contention is by saying that, look, when the prosecutor said defense counsel doesn't know his own client's story, and that's why this is a reason to disbelieve his story, a reason to believe that he's making it up, that that violated Doyle.

[00:25:02] Speaker 01:
And I think if you look at the context of that, the AUSA I think was pointing out

[00:25:08] Speaker 01:
other reasons why the defendant's story didn't make sense.

[00:25:12] Speaker 01:
He had been talking about reasons about the content of his story rather than the timing of it.

[00:25:22] Speaker 01:
He was saying, look, it doesn't make sense because, for instance, you said that the stabbing occurred during the daytime and she's at the hospital at night, or you said

[00:25:33] Speaker 01:
She stabbed her.

[00:25:34] Speaker 01:
I stabbed her three times, and she has seven stab wounds.

[00:25:37] Speaker 01:
It was things like that.

[00:25:38] Speaker 03:
But the point is, had he given his story at all prior to the trial?

[00:25:43] Speaker 01:
He had not.

[00:25:44] Speaker 03:
OK.

[00:25:44] Speaker 03:
Well, I mean, the fact that the statement that even the defense lawyer doesn't know his story still implicates the fact that the inference that I think the defendant is trying to counteract is the inference that he's fabricating his story.

[00:26:01] Speaker 03:
I mean, the fact that the defense lawyer, even the defense lawyer doesn't understand, know his story.

[00:26:06] Speaker 03:
The implication is he's making it up, right?

[00:26:09] Speaker 01:
Well, I think that, yeah, it is, but it's a proper inference because one thing, one thing that the defense attorney did.

[00:26:15] Speaker 03:
Yes.

[00:26:15] Speaker 03:
But then one thing on that link of, in one link in that chain is he's making it up and he didn't tell, he did not speak about this story before now, which again brings us into Doyle land, right?

[00:26:30] Speaker 01:
I don't think so, Your Honor, because what happened is during redirect of the defendant, defense counsel and Mr. Key did sort of a physical reenactment of how the stabbing took place, how he was being choked, and so forth for the jury.

[00:26:49] Speaker 01:
And during that, what the prosecutor said later is Mr. Key had to tell him, had to tell defense counsel, no, wait, this isn't how it happened.

[00:26:59] Speaker 01:
This is how it happened.

[00:27:00] Speaker 01:
And that's what he's talking about at that point.

[00:27:02] Speaker 01:
He isn't talking about, oh, you didn't tell your story before, but the fact that they're not on the same page with respect to what happened is an indication that he's making it up.

[00:27:17] Speaker 01:
And he had a lot of other things to say on that point as well, a lot of other reasons in that argument.

[00:27:24] Speaker 01:
And then the same thing for the remark at the end.

[00:27:27] Speaker 01:
the remark, that's the second remark I'm going to now.

[00:27:31] Speaker 03:
The second remark is... And I don't want to delay you too much, so quickly just mention... Right.

[00:27:35] Speaker 01:
So what he said is, that's where defense counsel says, look, this doesn't make sense, and he's making it up, and his story doesn't make sense.

[00:27:43] Speaker 01:
All right, got it.

[00:27:44] Speaker 01:
And it had been a theme of the closing, you can look at pages 597 to 601 and 628, or 629 to 631 of both the theme of both the initial

[00:27:56] Speaker 01:
and the rebuttal closings were both, there are a lot of things that he's saying here that just don't make sense, and focusing on a lot of the details of what he was saying.

[00:28:06] Speaker 03:
Okay, I appreciate that.

[00:28:07] Speaker 03:
Thank you.

[00:28:08] Speaker 01:
Thank you, Your Honors.

[00:28:10] Speaker 03:
If you wouldn't mind, and you don't have to take it, Mr. Sandiford, but if you'd add two minutes to whatever time you had, please.

[00:28:25] Speaker 00:
I'm, of course, happy to answer any questions that the court has, but I just wanted to make a couple of points.

[00:28:30] Speaker 00:
The first, this kind of harmless error argument about how the trial would have gone differently had there been an objection and the court made a correct ruling, that's not the way this is done.

[00:28:46] Speaker 00:
The way this is done is you look at the error and determine whether there's a reasonable probability that it had an impact on the jury's verdict.

[00:28:53] Speaker 00:
You don't recreate a trial in which an objection is made.

[00:28:57] Speaker 00:
We speculate about what the court's ruling would have been and that sort of thing.

[00:29:01] Speaker 00:
It's an interesting theory, but it's not supported by the cases.

[00:29:08] Speaker 00:
To your question, Judge Ebell, about the arraignment, we don't have any information about the arrest.

[00:29:14] Speaker 00:
There's just nothing in the record about his arrest.

[00:29:16] Speaker 00:
We know there were Miranda warnings at both arraignments, which presumably the first one happened pretty soon after he was arrested.

[00:29:23] Speaker 00:
And in Brecht, which is one of the main cases we rely on from the Supreme Court, it's the same fact pattern.

[00:29:29] Speaker 00:
The Miranda warnings were given at an arraignment.

[00:29:31] Speaker 00:
And the questions that the prosecutor asked and the argument that the prosecutor made were essentially identical.

[00:29:36] Speaker 00:
And the Supreme Court said that those crossed the Doyle line.

[00:29:40] Speaker 03:
What about the two statements that are disputed?

[00:29:44] Speaker 03:
What is your response?

[00:29:46] Speaker 00:
Sure.

[00:29:47] Speaker 00:
To take the attorney one first, if you look at this in context, the prosecutor had already violated Doyle

[00:29:54] Speaker 00:
to three times by the time that statement was made.

[00:29:57] Speaker 00:
So this is a running theme in the prosecutor's argument.

[00:30:00] Speaker 00:
What this argument was designed to do was to add punch to the Doyle violations to say, he didn't tell his story before trial.

[00:30:08] Speaker 00:
He didn't even tell his attorney this story before trial.

[00:30:11] Speaker 00:
So it's part and parcel of the violations as a whole.

[00:30:15] Speaker 00:
I think if you view it in isolation, then maybe it's a little bit on shakier ground, but if you look at it

[00:30:21] Speaker 00:
in terms of the argument that the prosecutor was making throughout the closing, it's clearly part and parcel of the Doyle violations.

[00:30:30] Speaker 00:
I think his second point on that is it just wasn't a very good argument anyway.

[00:30:35] Speaker 00:
I mean, what the prosecutor says, the reason he says that the defense counsel didn't know the story is because the defense lawyer hadn't cross-examined Ms.

[00:30:44] Speaker 00:
Chinchillas about the defense.

[00:30:46] Speaker 00:
There's all sorts of reasons that he might not have done that.

[00:30:48] Speaker 00:
Maybe he didn't even know if his client was going to testify at that point.

[00:30:51] Speaker 00:
So it's just weak.

[00:30:53] Speaker 00:
And a third point on that is that the prosecutor knew that that was not true.

[00:30:59] Speaker 00:
I mean, there was a bench conference early on in Mr. Key's testimony.

[00:31:04] Speaker 00:
It was before he got into his story of what happened on the night in question where defense counsel summarizes what the testimony from Mr. Key was going to be.

[00:31:12] Speaker 00:
So for the prosecutor to then stand up in closing and say,

[00:31:15] Speaker 00:
He didn't even tell his own lawyer the story.

[00:31:17] Speaker 00:
He knew that that was wrong.

[00:31:21] Speaker 00:
The second disputed statement is, let me get the exact language here, was that when the defendant testified, he completely made up a story that doesn't make any sense.

[00:31:34] Speaker 00:
That's just saying that he made up the story on the stand, which is the same thing that the Doyle violations had already done.

[00:31:40] Speaker 00:
And as I understand the government's brief, what they're saying is, well, all we were saying is that his story doesn't make sense.

[00:31:45] Speaker 00:
But that's not consistent with the statement itself, which is that when he testified, he completely made up a story that doesn't make any sense.

[00:31:54] Speaker 00:
So again, this remark came after the prosecutor had already violated Doyle three times, the third violation being just six transcript pages before this.

[00:32:04] Speaker 00:
So again, it's part and parcel of this whole strategy, which

[00:32:08] Speaker 00:
was all Doyle violations.

[00:32:09] Speaker 03:
Well, let me ask this question just so that we play this out a little bit.

[00:32:14] Speaker 03:
I mean, assuming that we decide not to even pay attention to the other two violations, alleged violations, do you win still?

[00:32:22] Speaker 00:
Yes.

[00:32:23] Speaker 00:
Yes.

[00:32:24] Speaker 00:
I think we definitely win still, because we still have a violation at cross, violation in opening closing, the initial closing, and a violation in rebuttal closing.

[00:32:33] Speaker 03:
Because even under your theory, these just reinforce and bolster the Doyle violations that are uncontested.

[00:32:39] Speaker 00:
That's correct.

[00:32:40] Speaker 00:
Yeah, that's correct.

[00:32:41] Speaker 00:
I don't really think you have to address them all because they really don't chip away the claim to just take them out of the case.

[00:32:46] Speaker 00:
All right.

[00:32:48] Speaker 00:
Unless the court has further questions, I'll cede the remainder of my time.

[00:32:52] Speaker 00:
Thank you, counsel.

[00:32:53] Speaker 00:
Thank you.

[00:32:55] Speaker 00:
Thank you for your fine arguments, counsel.