[00:00:02] Speaker 03:
The next case this morning is United States versus Lopez, number 232121.

[00:00:10] Speaker 03:
Counsel, you may proceed.

[00:00:14] Speaker 02:
Good morning, Your Honors.

[00:00:15] Speaker 02:
Assistant Federal Public Defender Amy Senia on behalf of Martin Lopez may please the court.

[00:00:22] Speaker 02:
Faced with a compromised case after the alleged victim refused to testify,

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The government filled the gaps in its case through the testimony of two investigating officers who interviewed the victim before trial.

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Though the prosecutor's artful questions ensured that the officer's testimony didn't quote the victim verbatim, the testimony's substance and structure left the jury with only one possible inference.

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The alleged victim in her out-of-court interviews had accused Mr. Lopez of committing the very crimes for which he stood trial.

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Allowing prosecutors to circumvent the Confrontation Clause with such obvious wordplay would render this constitutional right nothing more than an empty formality.

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This court should reverse.

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So counsel, let me ask you first of all about whether

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Tenth Circuit law constrains us on this issue.

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So this court said in Ibarra Diaz that there has to be an identifiable statement from the out-of-court declarant.

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This would be Ms.

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Molina here to find hearsay in the detective's testimony.

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Is hearsay by implication open to the court now after Ibarra Diaz?

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Yes, Your Honor.

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The government doesn't rely on Ibarra's ideas, and for good reason, because that issue wasn't squarely presented to the court about this idea of implicit hearsay.

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I believe there was a long footnote in that case where the court chastises the defense for poor briefing, for not setting up the issue, and really making a real mess of it for the court to sort out.

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And so under those circumstances where neither the defense raises this implicit hearsay issue nor the government talks about it, it's one of those issues that's not squarely presented and I think doesn't constitute binding case law for that reason.

[00:02:29] Speaker 03:
Well, I'm looking at the case right now.

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And the words implied hearsay and hearsay by implication don't appear.

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What does appear is a discussion of whether the testimony constitutes testimonial hearsay.

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And the court in this case said no, because there's no identifiable statement.

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And I know you've commented already, but I want to know, what is your best argument to say that this doesn't get in the way of your argument?

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So I think, again, it wasn't squarely presented to the court.

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And I think the question of whether there's an identifiable statement is really about what happened outside of court.

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And here we know that there were statements made by Ms.

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Molina during her

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out of court interviews with police because that's what the officers told us.

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And so when we're trying to determine, really the question is whether that out of court statement has been offered for the truth of the matter.

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And looking to just the principles of Crawford, really, you can't read Crawford without coming to the conclusion that this sort of testimony is not permissible because it

[00:03:59] Speaker 02:
it conveys the substance of a statement.

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And so if it really turned on whether there was an identifiable statement in terms of whether it was directly quoted, then the underlying principle of Crawford would be violated, which is that the whole point of the Confrontation Clause is to avoid this use of ex parte evidence against the accused at trial without

[00:04:25] Speaker 02:
him having really any ability to challenge it, as well as the portion of Crawford that talks about the reasoning behind that case, and rejecting the reliability standard that used to exist, saying that the confrontation clause can't be subject to manipulatable standards.

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Could I just ask you, I think, as I'm understanding the argument,

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that the line of questioning, particularly to Agent Romero, as much as indicated what Ms.

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Molina said.

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And you refer in your brief to the accusatory content of the interview.

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How do we know she made accusations in the interviews, given that there's some indication in the record that she didn't want to cooperate

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with the prosecution.

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In other words, they could have asked her all these questions, and she could have said, I'm not going to help.

[00:05:29] Speaker 03:
That's it.

[00:05:30] Speaker 03:
I'm not going to help you against Mr. Lopez.

[00:05:36] Speaker 03:
If there's some confusion or at least some possibility that that could have happened, what does that do to your argument?

[00:05:43] Speaker 02:
So that's true for explicit hearsay as well.

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So if I testify in court and I say,

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Judge Carson told me he loves baseball.

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If he actually told me that he hates baseball, that doesn't make my statement not hearsay.

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It's the same principle that applies for implicit hearsay.

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The point is that the substance of the statement, whether true or not, is being put in front of the jury.

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That's the whole point of the rule.

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That's why we have the confrontation clause, so that we can get Judge Carson into court and put him under oath and ask whether he does love baseball or not.

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That's the same exact principle that's underlying implicit hearsay.

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We don't know what she said, but we do know what the clear and obvious implication from the testimony as it came out was to the jury.

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Is that really true?

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Because you have cited a lot of out-of-circuit cases, and I agree with you that virtually all of those cases do strongly suggest that if there is a causative

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component between what the officer says that happened with regard to the investigation correlating to what the out-of-court declarant said, then that is a strong implication in Judge Matheson's question of what the witness said.

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Here, however, there's two things going on that are different than most of the cases.

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or Agent Romero and Agent Whitaker, both had the benefit of two 911 calls.

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They had, or actually two 911 callers, I guess there were a number of 911 calls.

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Catalina has the contemporaneous 911 call starting in the vehicle.

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And so Agent Romero knows that.

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Agent Whitaker knows that.

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And the only question

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I think it was the sixth question to Agent Romero was, after you asked all of these questions, after that, not because of that, after that, the investigation moved forward, correct?

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And the question does not denote causation, which is the element, at least in a number of out-of-circuit cases, that triggers the implied hearsay rule.

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So I don't think any of those cases turn on the causality, though there is causality here.

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If you look at Whitaker's testimony, he says that the interviews allowed him to procure more details that allowed the investigation to proceed.

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So that was causal there.

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But also, I don't think that's what those out of cert cases were turning on.

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They were turning on, what's the implication?

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What would a jury possibly understand from this?

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And there's no other way to look at the testimony here.

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Sergeant Whitaker's testimony, it happens at the very end of his cross-examination.

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It's one of the last things that the jury hears from him on direct.

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He says Ms.

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Molina is initially reluctant, but then they're able to procure more details.

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Those details allowed the investigation to proceed.

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And then he talks about how hard he and the other officers tried to force her to testify at trial.

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And so the message is unmistakable there.

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There's no reason that the officer would focus on this testimony for the jury unless it was because it was helpful for the prosecution.

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And then Agent Romero's testimony is even worse.

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He goes through the exact elements of the offense that he asked about.

[00:09:24] Speaker 04:
And then it was a problematic in itself, right?

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If he had gone through those first five questions, did you ask this?

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Did you ask this?

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Did you ask this?

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Did you ask this?

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I'm assuming that you would be standing here arguing about Whitaker, but not Romero.

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It's that last question.

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After you ask those questions, the investigation moves forward, right?

[00:09:45] Speaker 02:
I think even getting into the specificity of the questions themselves, there's no reason for the agent to do that.

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What if the last question was not withstanding your discussion with Christina in light of all of those episodes?

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Despite that, you still move forward with the investigation.

[00:10:07] Speaker 04:
I'm guessing you wouldn't be arguing in flat hearsay.

[00:10:10] Speaker 02:
It's hard to say, Your Honor.

[00:10:12] Speaker 02:
I think that's obviously not the situation that we have here.

[00:10:17] Speaker 04:
But isn't that significant, though?

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Because then the question is, is the implied hearsay really contingent on the prepositional clause that prefaces that last question after?

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Because you asked all of those questions.

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It's all how we set up that last question.

[00:10:35] Speaker 02:
I think the last question is certainly very important in driving the point home, making sure the jury doesn't miss it.

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But I think no reasonable jury could possibly think that they're going into this level of detail and questioning unless those questions were helpful for the prosecution.

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And the Kizzee case out of the Fifth Circuit has almost the identical structure where they asked about the officer's side of the testimony.

[00:11:00] Speaker 02:
And the Fifth Circuit says that's the clear and logical implication that you're only getting into that level of detail

[00:11:05] Speaker 02:
Because you're trying to imply for the jury that the answers were yes.

[00:11:09] Speaker 03:
Could I do a follow on to Judge Bacharach's question, which is this.

[00:11:15] Speaker 03:
If the officers had simply said that they interviewed Ms.

[00:11:19] Speaker 03:
Molina, and then they decided to pursue charges, would that be hearsay by implication?

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So I think yes.

[00:11:26] Speaker 02:
And some of the cases have that exact structure, where all it is is I interviewed this out of court witness, and then we decided

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to arrest, to issue a search warrant, to proceed with charges.

[00:11:38] Speaker 02:
But we don't have to do that line drawing here because we have so much more.

[00:11:42] Speaker 03:
No, I understand.

[00:11:44] Speaker 03:
You've got a series of questions.

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They're detailed and so forth.

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But do you need that for the argument?

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Have you got a case that would match up what I just gave you?

[00:11:57] Speaker 02:
I believe that I do.

[00:12:02] Speaker 03:
Well, I don't want to interrupt.

[00:12:04] Speaker 02:
Sure.

[00:12:05] Speaker 02:
And I'm happy to submit it specifically in a 28-J because there's nine cases and I'm trying to keep them all in my head.

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But I know that there were cases, I think perhaps the Jones case and the Fifth Circuit, where there's just one follow-up question.

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It's not this lengthy

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line of questioning that we have here.

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And that's still enough for the courts.

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And this court's background testimony or background evidence cases, Cass and Henson, those aren't implicit hearsay because they do say, he told me, instead of implying that.

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But it's the same where it's just one or two questions.

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It's very quick.

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And this court in Henson says, it's the clear, unobvious implication that you're not using this as background because it goes directly to the heart of the issue.

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And it wasn't necessary as background because the jury understands perfectly well why we're all here today.

[00:12:57] Speaker 00:
Let me back you up a minute.

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I want to back up to Judge Matheson's discussion with you about Ibar Ideas.

[00:13:04] Speaker 00:
And you had reasons why you would distinguish that case, you know, well, as she wasn't squarely presented, maybe not briefed like this case was.

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But I'm concerned that that case creates problems for you on the plainness

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issue.

[00:13:22] Speaker 00:
I mean, even if we give you that there's an error, and maybe that case is distinguishable in some ways, doesn't it suggest that any error that was made here is not plain?

[00:13:34] Speaker 02:
No, I don't think so because there's no way to read Crawford other than prohibiting this type of testimony.

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And our ideas did not consider whether Crawford prohibited it.

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And so obviously, a Supreme Court case is what makes it plain.

[00:13:53] Speaker 03:
But also- But you don't have an implied hearsay Supreme Court case or an implied hearsay 10th Circuit case that makes it plain.

[00:14:03] Speaker 02:
That's true, Your Honor, but implicit holdings can make things plain.

[00:14:06] Speaker 02:
This court said that in Wolfname.

[00:14:09] Speaker 02:
The implicit holding is that if the court is saying... You've got a lot of implicits in this case.

[00:14:14] Speaker 02:
Yeah.

[00:14:14] Speaker 02:
Implicit with an implicit, Your Honor.

[00:14:16] Speaker 02:
But if the court is saying that you can't have the confrontation right turn on these easy to manipulate standards, which is what the court says in Crawford, then that clearly applies here because this is so easily manipulatable.

[00:14:30] Speaker 02:
Any prosecutor could just say,

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What did you learn, officer, instead of what did the witness say?

[00:14:37] Speaker 02:
And then all of a sudden, we've snuck in testimonial hearsay through the back door.

[00:14:41] Speaker 02:
That can't be the way it goes for a bedrock constitutional right.

[00:14:44] Speaker 00:
Well, that's not implicit, though.

[00:14:47] Speaker 00:
That's where they actually say it.

[00:14:50] Speaker 00:
They say what they learned.

[00:14:51] Speaker 00:
We all know where it came from.

[00:14:54] Speaker 00:
In this case, it's the opposite.

[00:14:57] Speaker 00:
They don't ever say it, but it's implied.

[00:15:01] Speaker 02:
I think it's still implicit in that case, Your Honor, because it's just perhaps more obviously implicit, because there's not a direct quotation.

[00:15:08] Speaker 02:
But we all know that the officer learned that's the same thing as saying that it's implicit.

[00:15:13] Speaker 02:
But I think there's no way to read Crawford.

[00:15:16] Speaker 02:
And I don't think that, I see my time has expired.

[00:15:18] Speaker 02:
May I finish my?

[00:15:19] Speaker 02:
Please do.

[00:15:21] Speaker 02:
But we also have the weight of authority in all of the other circuits.

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This court would be creating a circuit split.

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And the government has offered no principled reason

[00:15:30] Speaker 02:
for why this type of hearsay should be allowed.

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And that's because there isn't one.

[00:15:35] Speaker 02:
And the constitutional harm would be exactly the same.

[00:15:40] Speaker 02:
Thank you.

[00:15:40] Speaker 03:
Thank you.

[00:15:41] Speaker 04:
Judge, may I ask you a question?

[00:15:44] Speaker 03:
Could you take one more question?

[00:15:46] Speaker 02:
Oh, sure.

[00:15:46] Speaker 02:
Yes, of course.

[00:15:47] Speaker 04:
OK.

[00:15:47] Speaker 04:
And I'm sorry.

[00:15:48] Speaker 04:
I know we've already cheated you out of your rebuttal.

[00:15:50] Speaker 04:
So apologies.

[00:15:52] Speaker 04:
But I want to ask you, and this does interrelate with the Confrontation Clause.

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You make an argument.

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And frankly, I think it's quite persuasive.

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on the closing argument.

[00:16:02] Speaker 04:
And being the excellent attorney you are, you combine those, which is permissible and I think a good strategy.

[00:16:13] Speaker 04:
And the line that I'm particularly concerned about is Miss Molina doesn't deserve to live in fear for reporting the truth.

[00:16:19] Speaker 04:
And there's another line on 847.

[00:16:22] Speaker 04:
And so you make a very good argument.

[00:16:23] Speaker 04:
And it is sort of elucidated in some of the out-of-circuit cases that this

[00:16:28] Speaker 04:
is the hammer that makes the implication clear.

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My problem is something the government, I don't think, has argued that I worry about.

[00:16:39] Speaker 04:
A closing argument is not evidence.

[00:16:42] Speaker 04:
There is no precedent that I'm aware of.

[00:16:44] Speaker 04:
There are out of circuit cases saying closing argument cannot violate the confrontation clause because it's not evidence.

[00:16:52] Speaker 04:
And so can we marry the

[00:16:55] Speaker 04:
problematic statements in closing argument with the problematic question to Whitaker and the problematic question to Romero, and as a corollary to that question on an independent issue involving the Confrontation Clause in terms of the closing argument, don't we have to reject that, at least at plain error, because there's no precedent that allows

[00:17:22] Speaker 04:
that recognizes constitutional violation under the confrontation laws based on something that's not evidence, argument.

[00:17:31] Speaker 02:
So the Hutchins decision in the Eleventh Circuit decided this issue.

[00:17:35] Speaker 02:
And there was some implication in the testimony.

[00:17:40] Speaker 02:
But then, as you said, Your Honor, it was the exact same situation where the hammer came in closing argument.

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clear that what the government was saying was, there's this witness who's too scared to come to court, but he identified the defendant.

[00:17:52] Speaker 02:
And so you don't have to worry that the evidence is sketchy.

[00:17:54] Speaker 04:
But Hutchins didn't address this problem, did it?

[00:17:57] Speaker 04:
Whether or not a closing argument can constitute a violation of the Confrontation

[00:18:01] Speaker 02:
I suppose it assumed that a closing argument could.

[00:18:06] Speaker 02:
And I don't think that there's anything strange or not plain about that because, again, Crawford explains that the whole point of the clause is to prevent this use of ex parte evidence against the accused that he can't reasonably confront.

[00:18:21] Speaker 02:
And so it's arguably worse in closing argument, because although the instructions say arguments aren't evidence, but a jury listening to it, it's going to be difficult for a jury to parse that out and ignore that the prosecutor has said that there is a witness who has incriminated the defendant but has refused to come to court.

[00:18:40] Speaker 02:
But it's the truth, so you should believe it anyway.

[00:18:43] Speaker 00:
Well, that runs headlong into the instructions, though, which specifically tell them what the attorneys say is not evidence.

[00:18:51] Speaker 02:
That's true, but this court has also said that when there's a really prejudicial statement and there's not a specific curative instruction, then we still worry about prejudice, even if there are those general instructions.

[00:19:02] Speaker 02:
I believe that was the Starks case from this court.

[00:19:04] Speaker 00:
And that brings us full circle to where we are here on plain air.

[00:19:08] Speaker 00:
I mean, one thing seems really difficult about this case for you is that these were, like so many of these things,

[00:19:18] Speaker 00:
could have been handled with a curative instruction or a limiting instruction with a contemporaneous objection?

[00:19:26] Speaker 02:
I don't think that a confrontation clause violation can be handled with a curative instruction.

[00:19:32] Speaker 02:
The whole point is that you have to bring the witness into court.

[00:19:35] Speaker 02:
That is the only way to cure the error.

[00:19:37] Speaker 00:
Objection.

[00:19:38] Speaker 00:
Your Honor, this violates Crawford.

[00:19:41] Speaker 00:
Jury, you're instructed not to consider it.

[00:19:44] Speaker 00:
Jury, you can only consider this for x.

[00:19:50] Speaker 00:
I think there was... It seems like there may not even be a confrontation clause problem once the curative action takes place.

[00:20:01] Speaker 02:
I'm sorry for keeping... I think the... So there was an objection.

[00:20:06] Speaker 02:
The attorney didn't expressly mention the confrontation clause, but there was an objection and the response from the government was not, oh, this is a limited purpose, this is background.

[00:20:14] Speaker 02:
permissible use of this evidence, the government said, this is highly relevant.

[00:20:20] Speaker 02:
And it's not hearsay because I'm specifically not asking for any statements.

[00:20:23] Speaker 02:
And so that shows that the defense attorney couldn't have asked for a limiting instruction because it was admitted for its full truth value.

[00:20:31] Speaker 00:
So what was the ground for the objection?

[00:20:32] Speaker 02:
Hearsay.

[00:20:34] Speaker 00:
So I mean, trial judges deal with that daily.

[00:20:41] Speaker 00:
That's why we're requiring a specific objection.

[00:20:44] Speaker 00:
And we don't let you say, objection hearsay, overrule.

[00:20:48] Speaker 00:
Oh, well, I also mean this, overrule.

[00:20:52] Speaker 00:
You've got to state the grounds of your objection.

[00:20:55] Speaker 00:
But anyway, I'm sorry to keep this going.

[00:20:58] Speaker 02:
Thank you.

[00:20:58] Speaker 00:
Thank you.

[00:21:05] Speaker 01:
Good morning, Your Honors.

[00:21:06] Speaker 01:
May it please the Court, Tiffany Walters for the United States.

[00:21:09] Speaker 01:
Starting with his opening, Lopez chose to put Ms.

[00:21:12] Speaker 01:
Molina's statements before the jury.

[00:21:14] Speaker 01:
Defense counsel argued, quote, throughout this entire case, Christina Molina said nothing happened.

[00:21:20] Speaker 01:
It was a disagreement.

[00:21:21] Speaker 01:
Counsel argued she refused to cooperate in the prosecution of this case.

[00:21:26] Speaker 01:
And the defense attacked the adequacy of the investigation both in opening and throughout trial.

[00:21:31] Speaker 01:
Having himself rely on Ms.

[00:21:33] Speaker 01:
Molina's statements for the truth of the matter asserted, he cannot now show that his confrontation rights were plainly violated.

[00:21:40] Speaker 04:
Ms.

[00:21:40] Speaker 04:
Walter, I want to make sure that I understand your argument.

[00:21:45] Speaker 04:
You're saying that if the defendant offers argument based on an accurate recitation of the evidence, then the defendant then has opened the door for the government to elicit otherwise inadmissible evidence to rebut the defendant's accurate recitation of what the evidence actually was.

[00:22:13] Speaker 04:
The defendant, from what you recited,

[00:22:15] Speaker 04:
didn't say anything that was not untrue.

[00:22:20] Speaker 04:
Christina had said that, yeah, I know you've been told this, that this carjacking, that's just not true.

[00:22:28] Speaker 04:
The defendant says that.

[00:22:29] Speaker 04:
That's just factually indisputable.

[00:22:33] Speaker 04:
And so now the government can say, OK, well, there was inadmissible evidence that she also said this other stuff.

[00:22:42] Speaker 04:
That doesn't seem right.

[00:22:44] Speaker 04:
I mean, I've never seen opening the door used that way.

[00:22:51] Speaker 01:
I'd point the court to this case in Lopez Medina, where the court, in that case, the defense counsel had cross-examined the witness on CI's confidential informant statements.

[00:23:03] Speaker 01:
And that allowed the government to redirect to ask about additional statements by the

[00:23:10] Speaker 01:
the confidential informant.

[00:23:11] Speaker 01:
And now I recognize this isn't quite the same situation, and here the government didn't actually bring in any other statements, but it did open the door, invite discussion into the context of the investigation.

[00:23:23] Speaker 01:
Here we have him relying for his truth on these out-of-court statements.

[00:23:26] Speaker 01:
Not just that they occurred, the government admitted that they occurred.

[00:23:29] Speaker 01:
It was necessary.

[00:23:29] Speaker 01:
It's talked about them.

[00:23:30] Speaker 01:
in terms of explaining what happened in the course of the investigation.

[00:23:35] Speaker 01:
But the defendant here is actually saying nothing happened because this victim said nothing happened.

[00:23:41] Speaker 01:
And in that circumstance, it's reasonable for the government to ask limited questions that this victim was actually interviewed by officers as part of the investigation about the carjacking before they proceeded with the case.

[00:23:54] Speaker 04:
And so because you were abutting that, and I think you acknowledge on page 29 that it was incriminating,

[00:24:00] Speaker 04:
So what you're saying is they opened the door, and so we were entitled and exercised that right by eliciting incriminating evidence about the content of what Christina said.

[00:24:13] Speaker 04:
Otherwise, nothing that which you just recited in your first several minutes is even relevant.

[00:24:20] Speaker 04:
So what you're saying is, and you've acknowledged it on page 29 of your brief, it was incriminating, and secondly, you were

[00:24:29] Speaker 04:
entitled to, but you rebutted defense counsel's argument that Christina didn't implicate Lopez.

[00:24:36] Speaker 01:
I think the implication of Lopez still goes to the adequacy of the investigation in the context of the investigation here.

[00:24:41] Speaker 01:
Right.

[00:24:42] Speaker 04:
So you were entitled to do it, but you did elicit evidence then that Christina implicated Lopez in the cardiac.

[00:24:50] Speaker 01:
I think that could be a reasonable inference the jury could draw.

[00:24:53] Speaker 01:
But again, I'd like to go back to the content of the statements here.

[00:24:56] Speaker 01:
So here we don't have statements made

[00:24:58] Speaker 01:
by the victim in the interview.

[00:25:00] Speaker 01:
We have questions about what was asked.

[00:25:02] Speaker 03:
Could I just jump in?

[00:25:03] Speaker 03:
It seems to me that if you're going to press this open the door argument to justify what happened here, why wouldn't it have been permissible for the government simply to ask the officers what Ms.

[00:25:22] Speaker 03:
Bellina told them in the interview?

[00:25:25] Speaker 03:
Wouldn't the door be open to that?

[00:25:27] Speaker 01:
I think Hemphill, the concurrence of Hemphill from Justice Alito, could suggest that in certain circumstances, it might be permissible to bring in the statements now.

[00:25:35] Speaker 01:
The government didn't do that here.

[00:25:37] Speaker 01:
The government chose not to go as far as it potentially could have.

[00:25:41] Speaker 03:
But still, my question is, if you're going to open the door and say, if you're saying, well, they opened the door, so this was OK.

[00:25:50] Speaker 03:
It was OK what happened here.

[00:25:53] Speaker 03:
Are you also conceding then?

[00:25:58] Speaker 03:
that the line of questioning from these two officers did elicit inadmissible hearsay that violated the confrontation clause.

[00:26:08] Speaker 01:
No, we're not.

[00:26:09] Speaker 01:
This is an alternative argument.

[00:26:10] Speaker 03:
So to come back to... Well, OK, I know there's an alternative argument, but the argument we're focused on right now, that seems, to borrow a word, that seems to be the implication of what your argument is.

[00:26:23] Speaker 03:
You say, well, they opened the door, so it was permissible to present this testimony.

[00:26:30] Speaker 03:
But it seems like what you're saying is it was permissible to present hearsay by implication.

[00:26:37] Speaker 01:
I think it could be permissible to present hearsay, but in this case, we didn't present hearsay.

[00:26:42] Speaker 01:
So I think it's a two-pronged argument.

[00:26:45] Speaker 03:
I don't think there was a... If you didn't present hearsay, why do you need the open the door argument in the first place?

[00:26:50] Speaker 01:
as an alternative argument basis for this court to affirm.

[00:26:54] Speaker 00:
So just so I'm clear, you're saying, first, it wasn't hearsay?

[00:26:59] Speaker 00:
Correct.

[00:27:00] Speaker 00:
And if it was, you could do it under Lopez Medina?

[00:27:04] Speaker 01:
Correct.

[00:27:05] Speaker 01:
OK.

[00:27:05] Speaker 01:
So turning back.

[00:27:06] Speaker 04:
If you do concede that Molina, that the questioning of Whitaker and Romero suggested that Molina said something incriminating against Lopez.

[00:27:18] Speaker 04:
So you acknowledged that it wasn't just to show the effect, it wasn't just to rebut a sloppy investigation defense, but it did create an inference that she had said something incriminating Lucas.

[00:27:38] Speaker 01:
I think that's a reasonable inference the jury could draw, although the fact that there's something incriminating about that is not determinative on the hearsay issue, because we look at cases like Ibarra Diaz, where information that has some incriminating implications is coming out.

[00:27:52] Speaker 01:
In that case, the confidential informant identified

[00:27:56] Speaker 01:
that said something that caused the officers to focus on the defendant.

[00:28:01] Speaker 01:
This court has repeatedly allowed testimony as background context evidence that would, in some way, assist the government's investigation, suggest something incriminating.

[00:28:13] Speaker 01:
But for confrontation clause, we have to have hearsay.

[00:28:15] Speaker 01:
We have to have a statement.

[00:28:16] Speaker 01:
We have to know what Miss Molina said.

[00:28:18] Speaker 01:
And here, we only know that

[00:28:20] Speaker 04:
something she said cause or the after that she's something she said the investigation continues we don't know whether she investigation is for so the questions presumably are relevant right the questions in order to incriminate Lopez they have to be relevant to the charges that would occur in Romero pursued which are the charges that were

[00:28:51] Speaker 04:
that were identified in the indictment.

[00:28:53] Speaker 04:
And so if they incriminated Lopez, they presumably were relevant to the charges, i.e.

[00:29:03] Speaker 04:
the same charges that found their way into the indictment.

[00:29:06] Speaker 04:
And so the implication that you acknowledge of incriminating Lopez was that she incriminated him with regard to the charges in the indictment.

[00:29:19] Speaker 04:
How could anybody say anything other than that?

[00:29:25] Speaker 01:
We have an uncooperative witness at this point that could have agreed with everything Ms.

[00:29:29] Speaker 01:
Rios said, could agree with part of what she said, could have just said enough that the officer's concerns were not resolved based on what Ms.

[00:29:36] Speaker 01:
Molina reported.

[00:29:37] Speaker 01:
We don't know what the statements are, and that is why it is so difficult to determine what the statements are.

[00:29:44] Speaker 03:
And then it also- Well, isn't that always the case with hearsay by implication?

[00:29:48] Speaker 03:
You don't have the actual statements, right?

[00:29:53] Speaker 01:
Some of the cases that the defense cites comes pretty close to basically identifying the substance of the statement.

[00:29:58] Speaker 01:
All right.

[00:29:59] Speaker 03:
Well, let's look at a few of these questions.

[00:30:02] Speaker 03:
Did you ask her about the vehicle?

[00:30:05] Speaker 03:
Did you ask whether there was a firearm?

[00:30:08] Speaker 03:
Did you ask whether a defendant threatened her with a firearm?

[00:30:11] Speaker 03:
Did you ask her if she willingly gave the defendant her vehicle?

[00:30:18] Speaker 03:
Those are the elements of the offense.

[00:30:21] Speaker 01:
Those questions do go to the elements of the defense, but again, we don't know how Ms.

[00:30:24] Speaker 01:
Molina responded to those questions.

[00:30:27] Speaker 03:
Well, if she'd said no to all the questions, why would they proceed with the prosecution?

[00:30:34] Speaker 03:
She's the primary victim.

[00:30:37] Speaker 01:
I think she could have just said enough that it didn't resolve the concerns raised by Ms.

[00:30:41] Speaker 01:
Molina's reporting.

[00:30:42] Speaker 01:
Obviously, she had said previously that nothing happened, so the mere fact that

[00:30:47] Speaker 01:
asked her these questions doesn't indicate what she said in response to it.

[00:30:52] Speaker 01:
And it's a necessary part of the government explaining the story of the investigation here.

[00:30:57] Speaker 01:
So we have the primary victim saying nothing happened.

[00:31:00] Speaker 03:
Was it necessary, really?

[00:31:03] Speaker 03:
Maybe the officers, the prosecution presenting that they interviewed

[00:31:10] Speaker 03:
Ms.

[00:31:10] Speaker 03:
Valena about the case shows that they did their due diligence in their investigation.

[00:31:17] Speaker 03:
But do they have to lay out all those questions to give that kind of background for the investigation?

[00:31:23] Speaker 03:
Does the jury really need to know that?

[00:31:24] Speaker 03:
Does the prosecution need that for its case?

[00:31:27] Speaker 01:
So in the examination of Sergeant Whitaker, the government did not ask those questions.

[00:31:31] Speaker 01:
I know.

[00:31:32] Speaker 03:
I'm giving you the Romero questions, and those are the ones that I think were really

[00:31:36] Speaker 01:
But I think the cross of Sergeant Whitaker explains why the government went into more depth with the questions with Agent Romero because the defendant again suggested that that interview wasn't recorded and that we don't know what the substance of it is and that we don't know if it was the government or the FBI that asked for it not to be recorded.

[00:31:58] Speaker 03:
I ask your opposing counsel this question about status of 10th Circuit law.

[00:32:02] Speaker 03:
You aren't arguing that a court in the 10th Circuit, this court or a district court, is prohibited from excluding hearsay by implication.

[00:32:16] Speaker 01:
I think it's a very fact-specific case.

[00:32:18] Speaker 01:
We did cite Ibarra Diaz at page 21 of our brief.

[00:32:20] Speaker 03:
That's what I'm asking.

[00:32:21] Speaker 03:
Does Ibarra Diaz state an across-the-board rule prohibiting recognition of hearsay by implication in the Tenth Circuit?

[00:32:31] Speaker 01:
I think Ibarra Diaz says that you have to have a statement.

[00:32:34] Speaker 03:
And so where you don't have a statement, like in this case... But now we're back to simply applying the hearsay rule, right?

[00:32:42] Speaker 03:
assertion intended or a statement intended as an assertion offered for its truth.

[00:32:47] Speaker 03:
I take it the doors open for courts to consider that.

[00:32:50] Speaker 03:
Would you agree with that?

[00:32:52] Speaker 03:
For the purposes of implied hearsay.

[00:32:54] Speaker 01:
I'm sorry, can you repeat that question one more time?

[00:32:56] Speaker 03:
Is implied hearsay a viable concept in the 10th Circuit?

[00:33:02] Speaker 03:
I don't know that Ibarra ideas completely forecloses it, but also- A lot of courts around the country that recognize it, treatises, evidence experts, we don't have much law in the Tenth Circuit.

[00:33:13] Speaker 03:
We have Ibarra.

[00:33:14] Speaker 03:
I just want to know if you think that closes the door.

[00:33:18] Speaker 01:
I think it does require a statement.

[00:33:20] Speaker 01:
And so here we don't have a statement.

[00:33:23] Speaker 01:
I don't know that it fully addresses exactly the circumstances raised here, and I think these are facts.

[00:33:26] Speaker 03:
I'm asking if it states a rule.

[00:33:29] Speaker 03:
that there can never be implied hearsay in the 10th Circuit.

[00:33:34] Speaker 01:
I'm not sure that it goes that far, but I would point the court to Duran, where the court considered this implied hearsay argument and said that we've rejected the argument as adopted by Macy's.

[00:33:44] Speaker 01:
Now, that was referring to conspiracy.

[00:33:45] Speaker 04:
Well, part, yeah.

[00:33:46] Speaker 01:
Part.

[00:33:46] Speaker 01:
It's a conspiracy overview.

[00:33:48] Speaker 01:
Part.

[00:33:48] Speaker 04:
I mean, there were several arguments in Duran about Dacius.

[00:33:52] Speaker 01:
There were.

[00:33:53] Speaker 01:
But in light of Duran, it's clear that in the air wasn't playing.

[00:33:56] Speaker 03:
If there was an error, why wasn't it playing under Crawford?

[00:33:59] Speaker 01:
because of Duran.

[00:34:00] Speaker 01:
Duran, we have a case where the defendant is raising this mace, this argument that implied hearsay can constitute a violation.

[00:34:08] Speaker 01:
And this court said, we haven't accepted it inside these other cases.

[00:34:12] Speaker 01:
And now while Duran may not be the definitive rule on this, it certainly shows that the error isn't plain, that this isn't clearly the law in the 10th Circuit.

[00:34:27] Speaker 01:
I would also like to turn to prong three argument, which I think is quite strong in this case.

[00:34:33] Speaker 01:
Here the trial evidence was overwhelming.

[00:34:35] Speaker 01:
So even if there is a confrontation clause problem, there is no need to reverse because the defendant cannot show a reasonable probability of a different outcome.

[00:34:44] Speaker 01:
Here we have a real time 911 call, an open call, capturing

[00:34:48] Speaker 01:
The victim screams Lopez's demands that she let go of it to get in the back, get out of the car, and the defendant's threat to shoot.

[00:34:57] Speaker 01:
And that's at minute three of exhibit 16 around the six-second mark.

[00:35:02] Speaker 01:
We have 911 reports made by Ms.

[00:35:06] Speaker 01:
Rios and Padilla.

[00:35:08] Speaker 01:
Ms.

[00:35:09] Speaker 01:
Rios was on the line the whole time.

[00:35:10] Speaker 01:
So it was immediately after this happened, indicating that Lopez had threatened them, that he had robbed her car.

[00:35:17] Speaker 01:
that he had threatened to kill them if they reported it.

[00:35:21] Speaker 01:
We also have Padilla, who's in a separate location.

[00:35:23] Speaker 01:
He observes it but isn't in the car and calls in to 911 right afterwards and also reports that he saw the gun, that he saw him push Rios out of the driver's seat, that he saw him hit her with a gun.

[00:35:41] Speaker 03:
Can I just jump in?

[00:35:43] Speaker 03:
I think we can review the evidence and record.

[00:35:46] Speaker 03:
But I had a question on the Rule 403 issue.

[00:35:49] Speaker 03:
I was interested in Palin's argument that the line of questioning for the officers didn't provide anything.

[00:35:59] Speaker 03:
Well, on probative value, that the evidence lacks legitimate probative value.

[00:36:05] Speaker 03:
Would you agree with that?

[00:36:08] Speaker 01:
I think the evidence does have legitimate probative value in providing the story of the investigation in the background context.

[00:36:15] Speaker 01:
And so for the same reasons that the confrontation clause argument fails, so does the 403 argument, because there is probative value in that.

[00:36:22] Speaker 01:
And the prejudice doesn't substantially outweigh it in light of the extensive evidence in the record.

[00:36:30] Speaker 03:
Thank you.

[00:36:31] Speaker 03:
Can you indulge me a second time?

[00:36:33] Speaker 03:
Well, I think we owe her some time anyway.

[00:36:36] Speaker 04:
I'm happy to answer.

[00:36:37] Speaker 03:
I think we owe her some time because we went over.

[00:36:39] Speaker 03:
Oh, that's true.

[00:36:40] Speaker 04:
But is it OK?

[00:36:42] Speaker 04:
Yes, of course it's OK.

[00:36:45] Speaker 04:
So when the prosecutor says in closing, they, talking about Catalina and Christina, don't deserve to live in fear for reporting the truth, what evidence was there that Christina

[00:37:01] Speaker 04:
is A, living in fear, and when you said, or not you, your counterpart, for reporting the truth, is that what you, I guess that's what you're referring to on page 29 of your brief, that it was, that not only was the question to Romero suggestive of incrimination, but the prosecutor wanted to, I guess, or did, intentionally or not, make sure that the message wasn't lost.

[00:37:28] Speaker 04:
She reported the truth.

[00:37:32] Speaker 04:
after Judge Matheson pointed out all of the elements of carjacking.

[00:37:37] Speaker 04:
So how can the jury have walked away with the combination of that litany of questions, those six questions to Romero.

[00:37:47] Speaker 04:
Christina is living in fear.

[00:37:50] Speaker 04:
She's been threatened.

[00:37:52] Speaker 04:
What evidence was there?

[00:37:53] Speaker 04:
She didn't show up under the material witness.

[00:37:56] Speaker 04:
What evidence was there that she was threatened or living in fear?

[00:38:01] Speaker 04:
And secondly,

[00:38:02] Speaker 04:
How can we otherwise interpret the phrase reporting the truth?

[00:38:08] Speaker 01:
So I'll answer the first part of your question.

[00:38:10] Speaker 01:
I know it's a compound.

[00:38:12] Speaker 01:
And they're both related.

[00:38:13] Speaker 01:
So Ms.

[00:38:14] Speaker 01:
Molina, Mr. Padilla did report to 911 that Lopez had threatened Ms.

[00:38:19] Speaker 01:
Molina that he would kill her and her family if she said anything happened.

[00:38:25] Speaker 01:
So there is a direct threat in that regard.

[00:38:28] Speaker 01:
We have both of the officers, Sergeant Whitaker and Agent Romero, testifying that she's reluctant.

[00:38:33] Speaker 01:
She's scared in their interactions with her.

[00:38:36] Speaker 01:
We have Ms.

[00:38:37] Speaker 01:
Molina herself calling Ms.

[00:38:39] Speaker 01:
Rios and saying, he robbed my car, and asking her not to say anything, which is granted circumstantial evidence.

[00:38:45] Speaker 01:
But still, she's very concerned about this being reported.

[00:38:48] Speaker 01:
And then we have all the efforts that the officers made to arrest her pursuant to this material witness warrant.

[00:38:53] Speaker 04:
And she managed to elude them.

[00:38:55] Speaker 04:
What about that reporting the truth report?

[00:38:56] Speaker 01:
They're reporting the truth.

[00:38:57] Speaker 01:
So I think what the prosecutor was referring to in that section was really these threats and this fear.

[00:39:03] Speaker 01:
And I think that was the focus of that section.

[00:39:06] Speaker 01:
Certainly, the word truth carries additional meaning.

[00:39:08] Speaker 01:
And I think that that was perhaps the exact same paragraph could have been said with the word crime, and it would have been perfectly acceptable.

[00:39:17] Speaker 04:
So I think there perhaps could have been- He was making clear that she reported the crime.

[00:39:22] Speaker 01:
Certainly.

[00:39:23] Speaker 01:
I think that's true.

[00:39:24] Speaker 01:
Perhaps there could have been a better word chosen in the moment.

[00:39:26] Speaker 04:
And that everything that your opponent has been arguing, that Christina reported the crime, not Catalina, Christina reported the crime to Romero.

[00:39:41] Speaker 04:
I thought you spent your whole brief in your argument today saying, no, she didn't.

[00:39:46] Speaker 04:
She was agnostic on it.

[00:39:48] Speaker 04:
She didn't say that.

[00:39:49] Speaker 01:
Well, she spoke them and said something that caused them to continue with the investigation.

[00:39:55] Speaker 01:
Now, whether that means she said everything, I don't think that that's all wrapped up in that one word.

[00:40:01] Speaker 01:
But we do know that she was asked about it, and then whatever she said after that, the investigation proceeded.

[00:40:07] Speaker 03:
Thank you.

[00:40:08] Speaker 03:
And thank you to the panel.

[00:40:09] Speaker 01:
Thank you.

[00:40:10] Speaker 01:
I appreciate that you came.

[00:40:11] Speaker 03:
Thank you.

[00:40:12] Speaker 03:
The case will be submitted, and counsel are excused.