[00:00:00] Speaker 04:
What our first case is is 23-1108, US versus Mayfield.

[00:00:05] Speaker 04:
Mr. Miller, you ready?

[00:00:13] Speaker 02:
Benjen Miller on behalf of Edric Mayfield.

[00:00:16] Speaker 02:
And if possible, I'd like to try to reserve my last two minutes for rebuttal.

[00:00:21] Speaker 02:
All courts retain some discretion to manage how trial progresses.

[00:00:28] Speaker 02:
But the court here seriously misapplied that principle when it told defendants it was unacceptable not to stipulate the government's evidence, ordered the defense to do so, and appeared to impose sanctions if the defense refused.

[00:00:44] Speaker 02:
What the Supreme Court has said is this is a due process violation of the most basic sort, and that is why reversal is required here.

[00:00:54] Speaker 02:
If you look at all the court said here in what was not a single sentence in a back and forth, this was a pretty lengthy monologue on behalf of the court towards defense counsel.

[00:01:07] Speaker 02:
It covers over a page and a half.

[00:01:10] Speaker 02:
It's about 300 words.

[00:01:11] Speaker 02:
And almost everything the court says violates longstanding principles of what should happen at a criminal trial.

[00:01:19] Speaker 02:
It starts right away when the court tells counsel it's unacceptable.

[00:01:23] Speaker 02:
that you haven't stipulated.

[00:01:25] Speaker 03:
Wasn't that in the context, though, of council had not met and conferred with the government?

[00:01:31] Speaker 02:
I don't know exactly why that was.

[00:01:34] Speaker 02:
I know the deadline had passed.

[00:01:36] Speaker 02:
These parties had offered their exhibits, and the defense had chosen not to stipulate, which is entirely up in the defense's discretion.

[00:01:45] Speaker 02:
And it's not unacceptable.

[00:01:46] Speaker 02:
not stipulate.

[00:01:47] Speaker 02:
And to tell the defense counsel it is, is wrong.

[00:01:50] Speaker 02:
Defense has no obligation to help the government introduce its evidence.

[00:01:54] Speaker 02:
So it isn't unacceptable.

[00:01:56] Speaker 03:
Do you agree, though, that the court can place an obligation on counsel to meet and confer with the government's counsel?

[00:02:03] Speaker 02:
Yes.

[00:02:04] Speaker 02:
But that's where it needs to end.

[00:02:06] Speaker 03:
But the record here shows that counsel had not met and conferred with the government's counsel.

[00:02:11] Speaker 03:
Isn't that right?

[00:02:12] Speaker 02:
I may, I honestly am not sure, but I also know even if it is true, that doesn't justify what the court did.

[00:02:19] Speaker 02:
The court didn't simply say, I would like you to meet with the government and discuss this evidence.

[00:02:25] Speaker 02:
The court tells them it is unacceptable that you have not stipulated.

[00:02:29] Speaker 02:
He doesn't say it's unacceptable that you haven't met with them.

[00:02:31] Speaker 02:
He says it's unacceptable that you haven't stipulated.

[00:02:34] Speaker 02:
He says, I'm going to order you to stipulate to, quote, the maximum extent possible.

[00:02:39] Speaker 02:
And I'm going to tell you if you don't,

[00:02:41] Speaker 02:
you're going to start trial on very bad footing.

[00:02:45] Speaker 04:
So did the attorney object to this order by the court?

[00:02:49] Speaker 04:
He did not.

[00:02:50] Speaker 04:
So we're reviewing for plain error.

[00:02:53] Speaker 02:
I would argue, first, that this still falls under this court's utility exception, which still exists.

[00:02:58] Speaker 02:
That once the court knew what the party's position was, the party's position was we're not stipulating, once the court said you must do this and orders them to do it, the matter was done, which is

[00:03:10] Speaker 02:
completely consistent with what this court has said in Algarve, Valencia, and Madag, which is not inconsistent at all with Greer.

[00:03:19] Speaker 02:
But even putting that aside, it is plain error when, going back decades, the Supreme Court has said that defense counsel can't be forced to ease the government's burden, that we have an adversarial process.

[00:03:32] Speaker 04:
Well, there are several steps to the plain error analysis.

[00:03:36] Speaker 04:
Yes.

[00:03:36] Speaker 04:
The third step is prejudice.

[00:03:40] Speaker 04:
All this stuff was undisputable, wasn't it?

[00:03:43] Speaker 04:
Can you point to anything that he stipulated to that there was any chance that he could have successfully objected to?

[00:03:50] Speaker 02:
Yes, we have a litany of still photographs that are just cumulative evidence.

[00:03:57] Speaker 02:
We have cell phone video.

[00:04:00] Speaker 04:
Oh, so OK.

[00:04:02] Speaker 04:
You're not saying it wasn't admissible.

[00:04:04] Speaker 04:
It wasn't hearsay or something like that.

[00:04:10] Speaker 04:
It was cumulative.

[00:04:11] Speaker 04:
It was more than that.

[00:04:12] Speaker 04:
You're basing prejudice on the fact that he showed him more pictures?

[00:04:18] Speaker 04:
He led him more pictures than he needed to?

[00:04:21] Speaker 02:
Well, I think that we're basing prejudice from all of that.

[00:04:24] Speaker 02:
This wasn't.

[00:04:26] Speaker 02:
The court ordered defense counties to stipulate to the admissibility of the evidence.

[00:04:31] Speaker 02:
So the objection would be, this isn't admissible, Your Honor.

[00:04:34] Speaker 02:
These are photographs.

[00:04:35] Speaker 02:
They're just merely repeating what this person has testified.

[00:04:37] Speaker 02:
There's a cell phone video.

[00:04:39] Speaker 02:
that comes in from the motel that wasn't recorded in real time, that there's no one with actual evidence.

[00:04:45] Speaker 04:
So you think there's a reasonable possibility if that cumulative evidence hadn't come in that the verdict would have been different?

[00:04:53] Speaker 04:
That's a tough road to hoe.

[00:04:54] Speaker 02:
Well, the part of prejudice is also that what was the impact of this warning?

[00:05:00] Speaker 02:
And when the warning came in.

[00:05:01] Speaker 04:
No, the prejudice is the effect on the outcome of the case.

[00:05:04] Speaker 04:
That's what you have to show.

[00:05:05] Speaker 04:
So you're saying that if these

[00:05:08] Speaker 04:
additional photographs had been excluded as cumulative, he would have been acquitted.

[00:05:12] Speaker 04:
There's a good chance he would have been acquitted.

[00:05:15] Speaker 02:
What I am saying, Your Honor, is that part of the prejudice is the impact of what this Court says here.

[00:05:21] Speaker 02:
And when the Court is telling counsel, I need you to work with the government, I don't want this case slowing down, that chills counsel's representation.

[00:05:29] Speaker 02:
That in itself is prejudicial.

[00:05:32] Speaker 02:
when we don't know the impact of how trial plays out, had the court not demanded that the defense work with the government, help them ease their burden, not get in the way, and not slow down the case.

[00:05:46] Speaker 02:
The court said it's up to you to help the government make sure we don't put the jury to sleep.

[00:05:51] Speaker 04:
Well, he was talking about not stipulating too clearly relevant evidence that was admissible.

[00:05:58] Speaker 04:
It might have been cumulative.

[00:06:00] Speaker 04:
Were there any other defects in any of the evidence that he stipulated to?

[00:06:09] Speaker 02:
Well, I really went from stipulating to zero to stipulating to 70-something exhibits.

[00:06:13] Speaker 02:
And if it was so obvious that these were admissible, what's the point of stipulation?

[00:06:19] Speaker 02:
Why would the judge go on and on for two and a half, two pages, or in defense not to do it?

[00:06:24] Speaker 04:
Because the judge thought this was clearly admissible, and he was being obstructed by not

[00:06:30] Speaker 04:
by objecting to it, by not stipulating to it.

[00:06:34] Speaker 04:
The judge obviously thought it was all admissible and that this was just obstructive conduct by the attorney.

[00:06:41] Speaker 04:
That's why he thought it was unreasonable for him not to stipulate.

[00:06:46] Speaker 04:
So to show prejudice, you need to indicate that some of that evidence would not have been admitted if there had been an objection.

[00:06:58] Speaker 04:
And then your response was,

[00:06:59] Speaker 04:
Well, you know what your response just was, but that seemed to assume that, gee, if it's already all admissible, then there was nothing wrong with not stipulating.

[00:07:08] Speaker 04:
No, it takes time.

[00:07:09] Speaker 04:
You have to bring in a lot of witnesses to authenticate stuff, even if it's clearly authenticatable.

[00:07:18] Speaker 02:
But I think in right there, Your Honor, I think your question, you're assuming things that we don't know.

[00:07:23] Speaker 04:
Right, but it's your burden.

[00:07:25] Speaker 02:
It's your burden to show prejudice.

[00:07:26] Speaker 02:
No, I had one a backjack, not for the prejudice part.

[00:07:28] Speaker 02:
When the court is ordering defense counsel to do anything, I'm taking your question.

[00:07:32] Speaker 02:
I'm assuming that the court is allowed to make a decision on its own what it thinks of the evidence.

[00:07:37] Speaker 02:
If the court wants to make this order, this is pre-trial.

[00:07:40] Speaker 02:
The court doesn't know what the evidence is.

[00:07:41] Speaker 04:
I'm assuming that the judge made an error, and it was plainly contrary to law.

[00:07:46] Speaker 04:
I'm granting you that.

[00:07:48] Speaker 04:
And then saying, what about the third prong of plain error review?

[00:07:52] Speaker 04:
And all I've heard is that some of this evidence was cumulative.

[00:07:58] Speaker 04:
The admission of cumulative evidence is not going to change the outcome of many trials.

[00:08:02] Speaker 02:
No, I would agree with that, Your Honor.

[00:08:04] Speaker 02:
But I also think if you look at the Supreme Court's recent plain error cases, Henderson and Rosales-Morales, it talks about plain error not being simply a grading system for the judge.

[00:08:15] Speaker 02:
It talks about plain error being the types of errors that allow courts to correct things that impact the integrity and fairness of the case.

[00:08:23] Speaker 04:
And that's what I'm asking about.

[00:08:24] Speaker 02:
And my argument is when the courts order here,

[00:08:28] Speaker 02:
is violating a defendant's right to counsel, is violating the idea that there's no obligation on the defense ever.

[00:08:36] Speaker 02:
Whether this evidence would have come in or not, whether the defense should have stipulated it or not, is not the judge's decision to make.

[00:08:43] Speaker 02:
It's counsel's decision to make for one reason.

[00:08:46] Speaker 02:
It is in defense's interest.

[00:08:47] Speaker 02:
I'm granting you that.

[00:08:49] Speaker 02:
No, I understand, but what I'm adding to that here on

[00:08:51] Speaker 02:
is part of the prejudice is, how does this then impact how counsel behaves throughout all of trial?

[00:08:57] Speaker 02:
And what we do have here is, as we detail in our brief, a lot of examples of objectionable testimony that comes in where counsel sits on his hands.

[00:09:07] Speaker 02:
We have examples at sentencing where this attorney is still being apologetic to this judge.

[00:09:13] Speaker 02:
He's saying, Your Honor, indulge me and tell me how you want me to argue.

[00:09:18] Speaker 02:
I don't want to take up your time.

[00:09:19] Speaker 02:
This counsel was on his heels throughout the entirety of trial.

[00:09:23] Speaker 02:
And that is a direct result of this.

[00:09:25] Speaker 02:
We have cases that say that when there appears to be punishment for exercising your rights, which is actually what happened here, that there's a presumption of vindictiveness.

[00:09:37] Speaker 02:
And that is enough to warrant reversal.

[00:09:39] Speaker 02:
If we have that presumption, well, do we have anything to overcome it?

[00:09:42] Speaker 02:
And there's nothing in this record to overcome it when we have a court that's focused on efficiency

[00:09:48] Speaker 02:
not focused on ensuring the adversarial process is protected.

[00:09:52] Speaker 02:
And we have the defense counsel who sits on his hands for almost all of trial, misses objection after objection to, I think, almost all of their law enforcement witnesses, as we detail in our brief.

[00:10:04] Speaker 02:
I mean, a lot of testimony that comes in that is arguably objection, whether everyone is disdained.

[00:10:09] Speaker 03:
Let me ask you a question.

[00:10:10] Speaker 03:
So isn't the problem here, I mean, this is a really hard argument on direct appeal, it seems to me.

[00:10:18] Speaker 03:
We're up here.

[00:10:19] Speaker 03:
All of the things that you say are things that trial counsel could decide to do as a strategic matter, not objecting to testimony.

[00:10:33] Speaker 03:
So much testimony at trial comes in without objection because the defense attorney says, I don't want to draw attention to it.

[00:10:41] Speaker 03:
I don't want the jury to think I'm obstructing.

[00:10:47] Speaker 03:
get admonished for continually objecting to things that may or may not matter.

[00:10:53] Speaker 03:
I mean, there are so many things going, but we don't know in this record why that is.

[00:10:59] Speaker 03:
We do know that when certain things were important to this council, that they did object and that they strenuously objected.

[00:11:08] Speaker 03:
For example, when the juror was excused, council strongly opposed that, wasn't afraid to do that.

[00:11:15] Speaker 03:
So why should, I mean, if we see instances in the record where counsel did object, was not afraid to object, why should we go off on the assumption that the rest of the times they didn't object, it's because they were scared?

[00:11:31] Speaker 02:
Because I don't think the fact that defense counsel, and I don't think I would call it a strenuous objection with the juror, but when we have one thing, we have things that are facts.

[00:11:41] Speaker 02:
There is no stipulations.

[00:11:43] Speaker 02:
to any of the evidence.

[00:11:45] Speaker 02:
There is this improper order.

[00:11:46] Speaker 03:
And here's what concerns me about that.

[00:11:48] Speaker 03:
Let's talk about that for a minute.

[00:11:49] Speaker 03:
What concerns me is I think we're saying, OK, this counsel, there was going to be a, we don't have this in the record, by the way, because he never said this, there was going to be a strategy to not stipulate and to put the government to their burden.

[00:12:05] Speaker 03:
But we don't have anything in the record showing that.

[00:12:08] Speaker 03:
And then it seems to me that the court's statements

[00:12:12] Speaker 03:
were sort of caused by the fact that counsel had made no effort to confer and stipulate to any exhibits at all.

[00:12:22] Speaker 03:
And that's routine.

[00:12:24] Speaker 03:
That's normal cooperation in a trial for people to at least confer and decide that some of the exhibits, some of them were his own exhibits, and he wouldn't stipulate to them.

[00:12:37] Speaker 03:
What do you do with that?

[00:12:39] Speaker 02:
It's irrelevant, Your Honor.

[00:12:40] Speaker 03:
It is relevant, because the court has to have the ability to control people from being either A, lazy, or B, obstructionist.

[00:12:50] Speaker 02:
And it can't interfere with the defendant's right to tell the court, tell the government, it's your job to prove your case.

[00:12:55] Speaker 03:
He didn't say that.

[00:12:56] Speaker 03:
He didn't do that.

[00:12:58] Speaker 02:
He did do that, Your Honor.

[00:12:59] Speaker 02:
When we know the deadline had passed, he had stipulated to zero, this order happens

[00:13:04] Speaker 02:
He then stipulates you step into the exhibits.

[00:13:07] Speaker 03:
Did he send a letter or an email or is there a phone call to opposing counsel saying, hey, I'm not stipulating you to anything you're doing?

[00:13:16] Speaker 03:
I mean, all we know is he didn't do it.

[00:13:18] Speaker 03:
We don't know why.

[00:13:19] Speaker 03:
It could have been because he forgot, because he was negligent.

[00:13:24] Speaker 03:
We don't know why.

[00:13:25] Speaker 02:
But we do know the deadline passed and he hadn't stipulated.

[00:13:29] Speaker 02:
And to think he hadn't stipulated because he didn't realize the deadline was there is ignoring

[00:13:34] Speaker 02:
this massive, improper comment from this judge that goes on for 300 words, telling him you have to cooperate with the government or else we're going to put the jury to sleep.

[00:13:44] Speaker 02:
That's not defense's burden.

[00:13:46] Speaker 02:
And the last thing I'll say before I return to my bottle is Cronick discusses, you can go to trial with no theory of defense and just say, I don't want to see the government prove its case.

[00:13:57] Speaker 02:
And that's what counsel wanted to do.

[00:13:59] Speaker 02:
He never had a stipulation.

[00:14:01] Speaker 03:
We don't know that that's what he wanted to do.

[00:14:02] Speaker 03:
We didn't even see that.

[00:14:04] Speaker 03:
We have no record of that.

[00:14:05] Speaker 02:
Well, I'm not going to repeat myself, Arne, but when you go from 0 to 70 plus, the only thing changing is his court's order.

[00:14:12] Speaker 02:
To think that didn't impact it is inconsistent with what this record says.

[00:14:17] Speaker 04:
Let me ask you one factual question.

[00:14:19] Speaker 04:
You say I didn't stipulate anything before that, but he had.

[00:14:24] Speaker 04:
When there was a question about continuing the trial, because the witness couldn't be present, rather than having the trial continued, he stipulated to the authenticity of the halo video, which was by far the center part of the government's case.

[00:14:41] Speaker 04:
He stipulated to the most important evidence before

[00:14:46] Speaker 04:
the judge said anything.

[00:14:47] Speaker 04:
Am I wrong about the analogy?

[00:14:48] Speaker 02:
You're not.

[00:14:49] Speaker 02:
We put this in our reply brief.

[00:14:52] Speaker 02:
That is an example of the defense stating decision to stipulate to one piece of evidence that was part of the defense strategy in the defense best interest.

[00:15:00] Speaker 02:
He didn't stipulate to that because the court says, do this to help the government.

[00:15:04] Speaker 02:
He did it because Mr. Mayfield didn't want to delay trial.

[00:15:07] Speaker 02:
That's defense best interest.

[00:15:08] Speaker 04:
And the judge looks at what the defense attorney's done and says,

[00:15:13] Speaker 04:
You're not stipulating to government evidence that they wouldn't put on their case, even though you've listed it as evidence in your case?

[00:15:19] Speaker 04:
The judge was quite proper to make comments about this obstructionist behavior.

[00:15:26] Speaker 04:
Whether the judge went too far, I'll acknowledge that he did or assume that he did for purposes of plain error.

[00:15:36] Speaker 04:
But this was an obstructive defense attorney.

[00:15:40] Speaker 04:
And something could be said by the judge.

[00:15:42] Speaker 04:
Don't you agree the judge could have lectured him on the subject?

[00:15:46] Speaker 02:
The judge could lecture.

[00:15:47] Speaker 02:
The judge could say, we see this in the water case.

[00:15:50] Speaker 02:
The judge could say, I'd like to discuss with counsel what your honor has said.

[00:15:54] Speaker 02:
What the judge can't say is that it's unacceptable not to.

[00:15:58] Speaker 02:
And I'll ask about the station.

[00:16:00] Speaker 02:
That impacts how counsel behaves on trial.

[00:16:02] Speaker 02:
Thank you, Your Honor.

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

[00:16:23] Speaker 01:
Morning, Your Honors, and may it please the court, Rajiv Mohan for the United States.

[00:16:27] Speaker 01:
I'd like to start with the standard of review, and plain error review applies here, both because the futility exception does not survive Greer and it does not apply on its own terms.

[00:16:38] Speaker 01:
This court has explained that the exception applies when a party's position was made known to the district court.

[00:16:45] Speaker 01:
It was absolutely clear that an objection would have been futile.

[00:16:49] Speaker 01:
And here, Mr. Mayfield's argument on appeal that there was some sort of due process violation was never made known to the district court.

[00:16:58] Speaker 01:
I think the standard of review is important here because, as Judge Carson pointed out, the failure to object really leaves us with a limited record of what actually happened and deprived the parties of an opportunity to create a record

[00:17:12] Speaker 01:
of what happened with respect to the stipulations.

[00:17:16] Speaker 01:
And what I would say is, if you look at the history of what is in the record, I think it shows both that council engaged in recent judgment in deciding what to stipulate to, and also that the stipulations were the product of ongoing discussions between the parties.

[00:17:36] Speaker 01:
All we know from the government's original exhibit list is that nothing had been stipulated to at that point.

[00:17:43] Speaker 01:
When the government filed its revised exhibit list, counsel had stipulated to the authenticity of nearly all of the government's exhibits and the admissibility of about a third.

[00:17:53] Speaker 01:
So it was not the case that counsel stipulated wholesale to everything in response to the district court's comments.

[00:18:00] Speaker 01:
And then by the start of trial, counsel had stipulated the admissibility of more exhibits.

[00:18:06] Speaker 01:
And that is at volume three, pages 378 to 79.

[00:18:13] Speaker 01:
which I think shows that the parties were still engaged in discussions after the trial preparation conference and in the buildup to trial.

[00:18:20] Speaker 03:
Were you by chance trial counsel?

[00:18:23] Speaker 01:
I was your owner.

[00:18:24] Speaker 01:
And I also want to address prejudice because I think even if this court were to indulge a lot of what Mr. Mayfield says, the fact remains that he stipulated to halo footage, which was the most significant evidence before the district court

[00:18:41] Speaker 01:
made the supposedly erroneous comments.

[00:18:45] Speaker 01:
And also with respect to prejudice on the question of objections, I think it is true, as Judge Carson has pointed out, that counsel did object when he felt necessary.

[00:18:55] Speaker 01:
There is the example of the sick juror to which counsel objected to.

[00:19:00] Speaker 01:
Counsel objected during the government's opening statement.

[00:19:03] Speaker 01:
I think the reality is that counsel set out his theme of the case in his opening statement

[00:19:08] Speaker 01:
when he said that this is a case about reasonable doubt and government mistakes.

[00:19:13] Speaker 01:
And if you look at the objections that Mr. Mayfield now says counsel should have raised, they were not directed to that theme.

[00:19:21] Speaker 01:
They would not have advanced his arguments in those regards.

[00:19:24] Speaker 01:
And that is probably why counsel did not raise that.

[00:19:28] Speaker 01:
And so because there was no plain error here and certainly no prejudice, we would ask this court to affirm.

[00:19:34] Speaker 01:
And unless there are any further questions, I'd seek the balance of that time.

[00:19:39] Speaker 03:
So do you agree that it would have a chilling effect if the district judge told you if you don't stipulate to at least the authenticity of these exhibits, you're going to be starting off on a very bad foot with me?

[00:20:01] Speaker 01:
I don't think so.

[00:20:02] Speaker 01:
I think absence some sort of

[00:20:06] Speaker 01:
tangible sanction, and for all Mr. Mayfield talks about sanctions, I don't think he has specified what sanction he believes the district court had in store for him.

[00:20:14] Speaker 01:
And outside of that, I think the court's statements were just a passing expression of frustration, which, as the Supreme Court put it in Lateche, was within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display.

[00:20:31] Speaker 01:
And if I think you look at the rest of the transcript of the trial preparation conference,

[00:20:36] Speaker 01:
I think counsel and the court engaged in back and forth on a number of other issues.

[00:20:41] Speaker 01:
And there's no indication that those comments affected counsel throughout the rest of the trial preparation.

[00:20:47] Speaker 03:
Tell me the context in which the comments about stipulate to the maximum extent possible, and if you don't stipulate to authenticity, you're going to be off on a bad foot with me.

[00:20:59] Speaker 03:
What was the court's understanding at that point

[00:21:02] Speaker 03:
as to what the government and defense counsel had done regarding exhibits in this case?

[00:21:08] Speaker 01:
So I think the court's understanding at that point, really all the court had was the government's exhibit list, which had reflected no stipulations on it.

[00:21:19] Speaker 01:
Earlier in the trial preparation conference, in the discussion about the continuance motion, the court had talked with Mr. Mayfield's counsel about stipulations to the authenticity

[00:21:30] Speaker 01:
and admissibility of the halo footage.

[00:21:33] Speaker 01:
So that was on the record before.

[00:21:34] Speaker 01:
But I think that is the extent of the court's knowledge.

[00:21:37] Speaker 01:
There was no sort of indication that counsel had affirmatively refused to stipulate or made some conscious strategic decision not to do so.

[00:21:47] Speaker 01:
All the court had was the government's exhibit list, which listed no stipulations.

[00:21:52] Speaker 03:
I mean, this may be extra record.

[00:21:53] Speaker 03:
And if it is, I don't mean to bring it into the proceeding.

[00:21:57] Speaker 03:
But did counsel communicate with you

[00:22:01] Speaker 03:
to the effect that, listen man, I'm not stipulating to any of your exhibits.

[00:22:07] Speaker 03:
It's your job to prove this case, and my strategy is that you were going to meet your burden.

[00:22:13] Speaker 01:
I think it would probably be inappropriate for me to supplement the record with my personal recollection.

[00:22:18] Speaker 01:
Fair enough.

[00:22:20] Speaker 03:
If it's not in there, I don't need to know it.

[00:22:22] Speaker 01:
What I would point to is the fact that counsel stipulated to additional

[00:22:27] Speaker 01:
exhibits after the government's revised exhibit list, I think shows that the parties were engaged in ongoing discussions, and this was an ongoing process.

[00:22:40] Speaker 01:
And if there are no other questions, we would ask the court to refer.

[00:22:42] Speaker 00:
Thank you.

[00:22:49] Speaker 04:
As I see it, I'm giving you one more minute.

[00:22:51] Speaker 02:
Thank you.

[00:22:52] Speaker 04:
I'll be really quick.

[00:22:54] Speaker 02:
On page 39, I believe it is, of the supplemental record, the government submits its revised exhibit list, where it says, per the court's directive.

[00:23:04] Speaker 02:
These were stipulated not because of ongoing discussions, but because the court directed counsel to do it.

[00:23:09] Speaker 02:
And the Supreme Court, in chronic, has said, if the process loses its character as a confrontation between adversaries, the constitutional guarantee of right to counsel and due process is violated.

[00:23:21] Speaker 02:
Defense had no obligation to ease the government's burden.

[00:23:25] Speaker 02:
The defense had no obligation to make the government's case more appeasable to the jury.

[00:23:30] Speaker 02:
Whatever the reasoning was, that wasn't for the judge's concern.

[00:23:33] Speaker 02:
It wasn't for counsel's concern.

[00:23:35] Speaker 02:
And the court erred when it made defense help the government.

[00:23:40] Speaker 02:
And for that, that's it.

[00:23:41] Speaker 03:
Would it be your position that counsel could be entirely negligent in

[00:23:48] Speaker 03:
indilatory in engaging with the government on meeting and conferring.

[00:23:53] Speaker 03:
And for that reason, didn't stipulate to anything.

[00:23:57] Speaker 03:
And that the district court just has to say, well, they're under no obligation.

[00:24:01] Speaker 03:
So government looks like you have to bring in all these foundational witnesses.

[00:24:05] Speaker 03:
And you're going to have to lay a foundation for every exhibit and prove its admissibility without any further discussion.

[00:24:12] Speaker 02:
I think two things, Your Honor.

[00:24:14] Speaker 02:
I think one, yes, of course, counsel

[00:24:17] Speaker 02:
No, I'm assuming they're inattentive.

[00:24:20] Speaker 03:
Is the district court required just to sit there at that point and say, forget it, I'm just going to give up control over the trial, it's going to be a free-for-all, bring up the exhibits one at a time?

[00:24:31] Speaker 02:
I think two things that I'll sit down and give you a little bit of time.

[00:24:36] Speaker 02:
I think the court can say, like we've mentioned, we need to discuss.

[00:24:40] Speaker 02:
But I also think it's important, when the court tells the counsel, this is unacceptable.

[00:24:45] Speaker 02:
You must do A, B, and C. The counsel never says, I'm sorry, Your Honor, we're continuing negotiations.

[00:24:51] Speaker 02:
So there's also no indication that's what he was trying to do either.

[00:24:54] Speaker 02:
And for that, because I think this order, not that one single comment, but we're talking about 300 words, all directed at improperly enforcing defense to cooperate was improper.

[00:25:05] Speaker 02:
Thank you.