[00:00:02] Speaker 03:
All right, our next case before the break is 23-1295 United States v. Odufue.

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

[00:00:12] Speaker 02:
May it please the court, Robert Jackson on behalf of defendant appellant Odufue, Odufue.

[00:00:18] Speaker 02:
This case involves Mr. Odufue's theft of a vehicle at gunpoint following a minor traffic accident at a busy intersection in Aurora.

[00:00:26] Speaker 02:
There's no dispute about those basic facts.

[00:00:29] Speaker 02:
Mr. Otifu proceeded to trial on the theory that he did not possess the requisite mental state to be found guilty of carjacking.

[00:00:36] Speaker 02:
Carjacking is a specific intent offense and the government was required to prove beyond a reasonable doubt that Mr. Otifu intended to kill or seriously harm the driver if necessary to steal the vehicle.

[00:00:50] Speaker 02:
Mr. Otifu has a history of mental illness and he sought to introduce mental health evidence at trial to negate the specific intent element of carjacking.

[00:00:59] Speaker 02:
However, the district court erroneously excluded all mental health evidence from the trial by finding that Mr. Odufue could not establish a, quote, clear link between his mental condition and the mens rea element of carjacking.

[00:01:14] Speaker 02:
Second and further affecting Mr. Odufue's ability to present this defense was that the jury was not adequately instructed as to the specific intent element of carjacking.

[00:01:24] Speaker 02:
Both errors served to call into question the reliability of Mr. Odufue's

[00:01:28] Speaker 02:
convictions for the carjacking and the 924C offenses.

[00:01:33] Speaker 02:
I'd like to spend my time focusing on ground one.

[00:01:35] Speaker 02:
The district court abused its discretion in excluding all mental health evidence from trial.

[00:01:42] Speaker 02:
The Insanity Defense Reform Act that was passed in 1984, it narrowed the affirmative defense of insanity

[00:01:49] Speaker 02:
to only instances in which the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts.

[00:02:01] Speaker 02:
And this Insanity Defense Reform Act eliminated all other affirmative defenses based on mental disease or defect, including defenses such as, for example, diminished capacity.

[00:02:13] Speaker 02:
However, this court, in line with other courts of appeals, has acknowledged that mental health evidence

[00:02:18] Speaker 02:
not rising to the level of insanity remains admissible when it negates the essential element of specific intent.

[00:02:27] Speaker 02:
This is so because mental health evidence rebuting the mens rea of specific intent does not serve as an affirmative defense.

[00:02:34] Speaker 03:
Why would Otafew's delusion or perception that these people were harassing him or out to get him,

[00:02:47] Speaker 03:
Even if he believed that and had a mental illness that caused him to believe that couldn't he still how would that negate?

[00:02:56] Speaker 03:
his specific intent to steal the truck you know to either eradicate the threat they posed or to escape from from these people With the carjacking statute there's

[00:03:13] Speaker 02:
There's two elements in play here, and they're somewhat similar, but they're very distinct.

[00:03:18] Speaker 02:
We first have an intimidation element.

[00:03:21] Speaker 02:
That's that the vehicle has to be taken by intimidation or threat.

[00:03:25] Speaker 03:
And that's very different.

[00:03:27] Speaker 02:
Very much, yes, your honor.

[00:03:29] Speaker 02:
And this was all on videotape.

[00:03:32] Speaker 02:
And the jury was shown videotapes.

[00:03:34] Speaker 02:
There were two views.

[00:03:35] Speaker 02:
There was a traffic camera that caught the initial interaction, and then a security camera in a business that caught the actual

[00:03:44] Speaker 02:
brandishing of the firearm and the removal of Mrs. Strada from the truck.

[00:03:48] Speaker 02:
But apart from the intimidation element, now we move into the specific intent element, that Mr. Otafoo himself, not from the objective of reasonable bystander, but he must have specifically intended to cause harm or death to Mrs. Strada if she didn't give up the vehicle, if that was necessary to get the vehicle.

[00:04:11] Speaker 02:
The evidence shows, and this is all on the trial record, when Mr. Odufu approached that truck, he put the pistol in through the window to Mrs. Estrada.

[00:04:22] Speaker 02:
She pushed that pistol away multiple times, at least twice.

[00:04:26] Speaker 02:
She argued with Mr. Odufu.

[00:04:30] Speaker 02:
If he intended to kill or harm her, he certainly

[00:04:37] Speaker 02:
had the means and ample opportunity to do so, but he chose not to.

[00:04:41] Speaker 03:
In fact, his illness might have made him more likely to use lethal force, wouldn't it?

[00:04:49] Speaker 03:
I mean, we're grateful he didn't, but given the nature of your expert's report, I think it's more likely he might have used lethal force to escape.

[00:05:01] Speaker 02:
I think that's a great question, Your Honor, and I think that's exactly why the jury here needed to hear the evidence from these mental health experts.

[00:05:09] Speaker 02:
The jury could hear the mental health experts talk about Mr. Odufie's schizophrenia, his belief that this was a plot.

[00:05:18] Speaker 02:
And that would assist or help the jury in deciding whether or not Mr. Ogufu had the specific intent to harm or kill.

[00:05:25] Speaker 01:
Unless... The argument almost counsels sounds like he had to carry through with actually killing the person before you got intent, specific intent to harm.

[00:05:36] Speaker 01:
I mean, I'm not quite tracking with your response to Judge Temkovich.

[00:05:43] Speaker 01:
either has specific intent, but the fact that the lady moved the gun back and forth just might not have been real wise, but at least she was brave enough to do that.

[00:05:55] Speaker 01:
But that still indicates an intent to harm her with that gun, doesn't it?

[00:06:02] Speaker 01:
That's what the jury was told.

[00:06:05] Speaker 02:
I'm not sure it does indicate an intent to harm her, Your Honor.

[00:06:09] Speaker 01:
Well, if it doesn't, then you're saying you've got to carry through with actually killing her.

[00:06:16] Speaker 02:
No, I'm saying, Your Honor, that there's instances in which the defendant is bluffing.

[00:06:22] Speaker 02:
Bluffing?

[00:06:26] Speaker 02:
Give up your car or I'll shoot, an empty threat.

[00:06:29] Speaker 02:
And you got the car if it were me.

[00:06:34] Speaker 02:
He did get the car, that's correct, Your Honor.

[00:06:36] Speaker 02:
And that adds another strange element to this carjacking case.

[00:06:39] Speaker 02:
Mr. Oduf, who had his own car, he didn't need Mrs. Estrada's car.

[00:06:43] Speaker 02:
He was driving his own car.

[00:06:46] Speaker 02:
But as for this bluffing, the Supreme Court talked about it in Holloway.

[00:06:52] Speaker 02:
This court's talked about bluffing in Malone.

[00:06:55] Speaker 02:
And just recently, in the unpublished case of Bush, case number 22-2161, the courts again talked about bluffing.

[00:07:06] Speaker 02:
And the court noted that this bluffing may satisfy the intimidation element, but it doesn't necessarily satisfy the specific intent element, the intent to harm or kill.

[00:07:21] Speaker 02:
I would like to talk some about this mental health evidence, the evidence that wasn't presented here.

[00:07:26] Speaker 02:
It's important evidence.

[00:07:33] Speaker 02:
Mr. Otifu proffered the reports or a report compiled by two psychiatrists at the University of Colorado Medical Center.

[00:07:43] Speaker 02:
That's Dr. Martinez and Dr. Mayer, and then a report from a psychologist, Dr. Gray.

[00:07:52] Speaker 02:
These reports

[00:07:54] Speaker 02:
The jury could have heard him and determined that Mr. Atifu was bluffing with his statements and his actions, that he just intended to thwart what he believed was this plot against him by the occupants of this pickup truck that he just got in a wreck with.

[00:08:09] Speaker 02:
He thwarted this plot by separating Ms.

[00:08:12] Speaker 02:
Estrada and Mr. Reyes from their vehicle.

[00:08:16] Speaker 02:
The proffered experts could have explained that Mr. Atifu's

[00:08:19] Speaker 02:
mental health conditions render the scenario plausible.

[00:08:23] Speaker 02:
It doesn't look all that plausible when we see the videotape.

[00:08:25] Speaker 02:
That's why we need the mental health evidence.

[00:08:27] Speaker 03:
Isn't that the kind of evidence that the Insanity Defense Reform Act was intended to restrict?

[00:08:43] Speaker 02:
But left intact, even after the Insanity Defense Reform Act, is this narrow pathway when we're talking about specific intent offenses.

[00:08:52] Speaker 02:
And this court has already decided that if it's a specific intent offense, that the defendant can present some mental health evidence that bears upon the issue of specific intent, apart from the Insanity Defense Reform Act.

[00:09:08] Speaker 02:
The psychiatrist, they could have explained that Mr. Adafu

[00:09:12] Speaker 02:
began having auditory hallucinations when he was just 13 years old.

[00:09:17] Speaker 02:
And those symptoms got worse from there.

[00:09:19] Speaker 02:
They could have explained that Mr. Otifu's father suffered from similar conditions to Mr. Otifu, including bipolar disorder, extreme paranoia.

[00:09:29] Speaker 02:
The father's most extreme behavior consisted of the kidnapping of Mr. Otifu and his younger brother when Mr. Otifu was just seven years old.

[00:09:38] Speaker 02:
And the father took the children out of state.

[00:09:40] Speaker 02:
The father's mental illness

[00:09:42] Speaker 02:
In that episode, perhaps corroborate or lend credence to Mr. Otifu's defense that he was suffering mental health conditions himself, causing him to believe they needed to take action against the drivers of the pickup truck, while at the same time lacking the specific intent to harm or kill as required by the statute.

[00:10:04] Speaker 02:
Further establishing his mental health conditions were that records close in time, jail records,

[00:10:10] Speaker 02:
Close in time to the fence, Shodi was suffering from bipolar disorder and suspected of having schizophrenia.

[00:10:17] Speaker 02:
These psychiatrists that were proffered, they did a retrospective mental health evaluation.

[00:10:23] Speaker 02:
They diagnosed Mr. Adafu with schizophrenia and experienced an acute episode of schizophrenia at the time of the offense, trauma and stress-related disorder, and cannabis use disorder.

[00:10:38] Speaker 02:
And based on those diagnoses, their opinion was, quote, Mr. Odufu, due to his mental illness, misinterpreted what most people would see as a simple fender bender.

[00:10:49] Speaker 02:
Mr. Odufu interpreted this minor traffic accident as being evidence of a nefarious plot against his life that required him to do something before something was done to him.

[00:11:03] Speaker 02:
And Mr. Odufu's illness, according to the psychiatrist,

[00:11:07] Speaker 02:
affected his thoughts or his, quote, rational thoughts, decision-making, and behavior.

[00:11:12] Speaker 02:
When I'm hearing these mental health experts talk about an effect on his rational thought process, to me that thought process is also the process or his ability to inform specific intent.

[00:11:25] Speaker 03:
Sounds like evidence that would go to a complete insanity defense.

[00:11:28] Speaker 03:
Did he argue that here?

[00:11:30] Speaker 02:
No, Your Honor.

[00:11:32] Speaker 02:
And very candidly, these mental health experts, they quoted Mr. Otifu from their evaluation of him.

[00:11:41] Speaker 02:
He said, I knew it was wrong to hold a pistol to another person's head.

[00:11:46] Speaker 02:
I knew it was wrong to take a pickup truck.

[00:11:49] Speaker 02:
Right there, that's the core of the Insanity Defense Reform Act.

[00:11:53] Speaker 02:
If the defendant knows their actions are wrong, there is no affirmative defense of insanity.

[00:11:59] Speaker 03:
If you knew what was wrong then, couldn't the jury have found that he had the specific intent to commit the carjacking?

[00:12:09] Speaker 02:
Sure, Your Honor, but I think the jury needed the assistance of these mental health experts to help them in this hard decision as to what Mr. Odufee's intent was.

[00:12:20] Speaker 02:
Not what they think it may have been from seeing these videos, but they needed some help to put this behavior in context.

[00:12:28] Speaker 01:
Well, that leads me then to that question and you can help me out because in looking at it and looking at the medical reports, I don't see anywhere where they finally told the district judge in regards to the hearing as to the evidence that was going to come in that this conduct

[00:12:49] Speaker 01:
affected, you know, his specific intent.

[00:12:52] Speaker 01:
They didn't say that.

[00:12:54] Speaker 01:
They told us all about what the problem was and all these things.

[00:12:58] Speaker 01:
But nowhere, and this is where I, can you show me in their report where they said in this conduct, you know, is lacking in specific intent.

[00:13:11] Speaker 01:
The trial court, as I looked at it, said, you haven't shown that anywhere.

[00:13:15] Speaker 01:
You just showed a medical report.

[00:13:18] Speaker 01:
So help me out there.

[00:13:21] Speaker 02:
Judge, you've done a very thorough reading of the record and you're absolutely correct.

[00:13:24] Speaker 02:
These experts don't talk about specific intent in their reports.

[00:13:29] Speaker 02:
That's not there.

[00:13:31] Speaker 02:
And that's what the trial court faulted them for not doing.

[00:13:35] Speaker 02:
Well, is that wrong?

[00:13:37] Speaker 02:
I think so, and I think that's too stringent a standard put on these on Mr. Odufoo by the trial court.

[00:13:43] Speaker 01:
What's your best case?

[00:13:45] Speaker 01:
That will help me out a lot if you've got a good case that tells me that.

[00:13:49] Speaker 02:
United States versus Wray out of the Ninth Circuit speaks about exactly that.

[00:13:54] Speaker 01:
Ninth Circuit?

[00:13:55] Speaker 02:
Yes, sir, and that's cited in the brief.

[00:13:57] Speaker 02:
In the name of the case again, U.S.

[00:13:59] Speaker 02:
versus Wray.

[00:14:00] Speaker 02:
I believe that's R-E-Y.

[00:14:03] Speaker 02:
I remember that.

[00:14:06] Speaker 02:
I think that's just too much.

[00:14:07] Speaker 02:
That's too stringent a standard.

[00:14:09] Speaker 02:
We have this competing rule of evidence, 704B, that says that an expert can't make an ultimate opinion as to the presence or absence of an element of an offense.

[00:14:22] Speaker 02:
And that's essentially what the trial court's asking these experts to do, or faulting them for not having that in their reports.

[00:14:28] Speaker 02:
While at the same time, the psychiatrists are saying, well,

[00:14:33] Speaker 02:
There's an impairment in Mr. Atifu's decision-making and thoughts.

[00:14:39] Speaker 02:
Sounds a lot to me like his thoughts would go to, well, did he think that he intended to harm or kill the driver if necessary?

[00:14:47] Speaker 02:
There was also a psychologist that was proffered.

[00:14:49] Speaker 02:
That psychologist did a lot of testing, and from that testing found compelling data on top of what the psychiatrist found also showing a thought disorder.

[00:15:02] Speaker 02:
So we have both the psychiatrist and the psychologist saying there's something wrong with the way Mr. Odufoo is thinking.

[00:15:08] Speaker 03:
The district court also ruled against you under Rule 403.

[00:15:14] Speaker 03:
How do you overcome that?

[00:15:18] Speaker 02:
I think that's wrong in this instance, Your Honor.

[00:15:23] Speaker 02:
We have this court's framework that's laid out in Brown about how the district court reviews this mental health evidence and

[00:15:31] Speaker 02:
Essentially, Brown says, well, the district court's a gatekeeper.

[00:15:34] Speaker 02:
This can be a confusing thing.

[00:15:36] Speaker 02:
It's ripe for abuse.

[00:15:39] Speaker 02:
So the district court needs to make sure we're not confusing the jury before this evidence comes in.

[00:15:45] Speaker 02:
So if we satisfy Brown and this evidence is coming in to negate specific intent, that's the end of it.

[00:15:52] Speaker 02:
We don't double dip under Rule 403 and say, well, it's not going to confuse the jury under Brown.

[00:15:58] Speaker 02:
But under Rule 403, this is too confusing to come in.

[00:16:01] Speaker 03:
Isn't it any piece of evidence subject to that standard?

[00:16:06] Speaker 03:
I think the standards are even.

[00:16:07] Speaker 03:
I mean, it's admissible.

[00:16:10] Speaker 03:
I mean, you're arguing it's admissible.

[00:16:11] Speaker 03:
That doesn't mean you would get a vague 403.

[00:16:15] Speaker 02:
I believe the standards are even met by the time we've crossed brown, Your Honor.

[00:16:21] Speaker 02:
That would be my position.

[00:16:22] Speaker 02:
I see my time's gone over.

[00:16:24] Speaker 02:
Thank you, counsel.

[00:16:25] Speaker 02:
Thank you, Your Honor.

[00:16:43] Speaker 00:
May it please the court, Kyle Brenton for the United States.

[00:16:46] Speaker 00:
Your Honor, I want to go back to Judge Timkovich's very first question to my opposing counsel, because I think it really puts a finger right on the heart of this case.

[00:16:54] Speaker 00:
How did the psychological evidence that Mr. Odifu offered negate specific intent?

[00:17:02] Speaker 00:
Now, I listened very hard.

[00:17:04] Speaker 00:
I did not hear an answer to that question.

[00:17:07] Speaker 00:
And I understand why I didn't hear an answer, because the answer is it didn't.

[00:17:12] Speaker 00:
The psychological evidence here, well, let me take a step back.

[00:17:16] Speaker 00:
Under Brown, what a defendant must establish to allow psychological evidence short of insanity to be admitted is the defendant has to clearly demonstrate how that evidence, if believed, would negate specific intent.

[00:17:34] Speaker 00:
So that's setting up a simple comparison.

[00:17:36] Speaker 00:
What is the specific intent the government has to prove?

[00:17:39] Speaker 00:
And how does the psychological evidence negate it?

[00:17:43] Speaker 00:
Now here, under Section 2119, the specific intent the government had to prove was that as he walked up to that car, Odi Fu intended to shoot or kill, if necessary, to take the car.

[00:17:56] Speaker 00:
That's 2119 and Holloway.

[00:17:59] Speaker 00:
What was the psychological evidence here?

[00:18:03] Speaker 00:
Odi Fu suffered from paranoia.

[00:18:06] Speaker 00:
He misinterpreted.

[00:18:08] Speaker 00:
actions that most people would see as non-threatening as threatening.

[00:18:12] Speaker 00:
He saw this minor fender bender as a plot against him.

[00:18:16] Speaker 00:
He had to thwart.

[00:18:18] Speaker 00:
He was impulsive, reckless, had diminished capacities for rational thought and decision making.

[00:18:25] Speaker 00:
Now, the core problem for Odifu is it is entirely possible to believe all of those things and still believe that as he walked up to that car and racked the slide of that pistol,

[00:18:38] Speaker 00:
he intended to shoot if necessary to get the car.

[00:18:41] Speaker 00:
All of the psychological evidence here, even if he had been able to present it, even if the jury had believed every word of it, it would not have precluded them from finding that he acted with the required specific intent.

[00:18:55] Speaker 00:
So that is well short of the standard in Brown of clearly demonstrate how the psychological evidence would negate specific intent, and that

[00:19:05] Speaker 00:
Frankly, I think disposes of this issue.

[00:19:07] Speaker 00:
I think it's as simple as that, Your Honors.

[00:19:14] Speaker 00:
I think the court also asked about 403.

[00:19:17] Speaker 00:
I think this case was a prime candidate for rule 403.

[00:19:25] Speaker 00:
just for the reasons that I think we just heard from opposing counsel in terms of describing this evidence.

[00:19:30] Speaker 00:
So this jury was supposed to hear evidence of Mr. Odifu's father's mental health history, things that happened to him when he was five years old, things, you know, far removed in time from this incident, all of these things.

[00:19:47] Speaker 00:
And also he was going to proffer testimony from family members about these things, not just these experts.

[00:19:55] Speaker 00:
And that's what the district court said.

[00:19:58] Speaker 00:
This stuff is so far afield and so dangerous.

[00:20:02] Speaker 00:
I mean, every court to address this has recognized that this kind of psychological evidence, it's inherently malleable, imprecise concepts, and it poses a massive risk of the jury ruling on an impermissible basis.

[00:20:15] Speaker 00:
Bias, sympathy, or frankly, excusing conduct based on mental health, where the defendant is specifically not arguing

[00:20:25] Speaker 00:
that they're not criminally responsible for their actions.

[00:20:27] Speaker 00:
But we do have Brown.

[00:20:29] Speaker 03:
And it does permit this evidence to come in in certain circumstances.

[00:20:34] Speaker 03:
And it seems like the way you just framed it for me that Brown's basically a nullity.

[00:20:41] Speaker 03:
I don't know what kind of evidence could get in on the Brown framework in the government's view.

[00:20:47] Speaker 00:
Absolutely not, Your Honor.

[00:20:48] Speaker 00:
I think we need to take a step back and understand what is Brown doing versus what does 403 do.

[00:20:54] Speaker 00:
And I think my opposing counsel is arguing that Brown essentially takes the place of 403, that if this evidence passes muster under Brown, set 403 aside.

[00:21:06] Speaker 00:
I don't think that's the case.

[00:21:07] Speaker 00:
There's nothing in Brown that suggests that's the case.

[00:21:10] Speaker 00:
I think Brown is fundamentally a very specific relevance test.

[00:21:16] Speaker 00:
It's like a 401, frankly, test.

[00:21:19] Speaker 00:
And what it's testing for is, does this evidence

[00:21:24] Speaker 00:
go to the single narrow purpose under which it's allowed to be admitted, which is negating specific intent for specific intent crimes.

[00:21:33] Speaker 00:
Now, that it qualifies for that, that it may qualify for that, does not mean that it automatically passes muster under Rule 403.

[00:21:42] Speaker 00:
I mean, you can imagine a whole universe

[00:21:45] Speaker 00:
of psychological evidence that maybe there's an argument that it connects to intent, but it's still, it's inflammatory, it seeks sympathy and bias, all those things that are prevented by Rule 403.

[00:21:56] Speaker 03:
Well, give me a hypothetical piece of evidence that you think of psychological evidence that would have worked here.

[00:22:05] Speaker 00:
Well, I think that's a... Put his hat on.

[00:22:07] Speaker 00:
Absolutely, Your Honor.

[00:22:09] Speaker 00:
I mean, I will start out by pointing out that

[00:22:12] Speaker 00:
A number of courts have said that it's actually quite difficult to come up with examples here.

[00:22:17] Speaker 00:
Yeah, that's why I'm asking you.

[00:22:19] Speaker 00:
Well, of course.

[00:22:20] Speaker 00:
There are two cases that I think get referred to pretty consistently.

[00:22:24] Speaker 00:
The Stags case from the Seventh Circuit, and there's also the Frisbee case.

[00:22:29] Speaker 00:
Now, both of these are cases that predate the Insanity Defense Reform Act, so they're not excellent examples, but they are talked about in the subsequent cases.

[00:22:39] Speaker 00:
It was a case of a marine deserter who, when the authorities caught up with him, the government argued that he pointed a gun at the officers and thus intentionally put them in apprehension of physical harm.

[00:22:56] Speaker 00:
His version of events was he was not lifting the gun at the officers, he was lifting it to point it at himself.

[00:23:04] Speaker 00:
And he proffered psychological evidence that he suffered from a mental illness that made him more likely to harm himself than be aggressive toward others.

[00:23:13] Speaker 00:
So ultimately, in the cases that have discussed that case, that is a type of psychological evidence that could be admitted because it goes to what is it more likely or not that he was doing in that moment?

[00:23:26] Speaker 00:
Was he lifting the gun to point at the officers?

[00:23:29] Speaker 00:
Was he lifting it to point at himself?

[00:23:31] Speaker 00:
The Frisbee case is another one that gets mentioned.

[00:23:34] Speaker 00:
That's a locked room murder case, essentially, where the defendant was in the room with the decedent and was charged with a specific intent crime.

[00:23:44] Speaker 00:
And his defense was, I suffer from schizophrenia.

[00:23:47] Speaker 00:
I have blackouts, where I am not aware of my actions.

[00:23:51] Speaker 00:
And that was considered admissible to whether he had the specific intent necessary for the crime.

[00:23:58] Speaker 00:
Again, it goes specifically to the intent.

[00:24:01] Speaker 00:
If asked to sort of hypothesize different facts here, if, for example, the psychologist had opined something to the effect of, Mr. Odi Fu suffered from the very specific delusion that the gun in his hands did not work, but he knew that everyone else thought that it would, maybe that.

[00:24:24] Speaker 00:
could have gone, could have been admissible under Brown.

[00:24:28] Speaker 00:
But again, that is very far afield from what the experts here actually opined.

[00:24:34] Speaker 00:
I think here there is just no way to draw a connection between the expert reports and the specific intent the government had to prove.

[00:24:41] Speaker 00:
So I think the court properly exercised its discretion in excluding that evidence under both Brown and 403.

[00:24:48] Speaker 00:
I know we haven't discussed the jury instruction issue.

[00:24:50] Speaker 00:
I'm happy to answer any questions on that, but otherwise I'm also happy to take my seat.

[00:24:57] Speaker 03:
Thank you, counsel.

[00:24:58] Speaker 03:
Thank you, Your Honor.

[00:24:58] Speaker 03:
Counselor excused, and the case is submitted.

[00:25:00] Speaker 03:
We'll take a 10-ish minute break before the next case, which is gay.