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Argument of the day, 23-3170, US v. Williams.

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Pinkus and Brown on the same day.

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I think you're the two I see more than any other attorney.

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After state prosecutors were unable to proceed against Mr. Williams on drug distribution charges without the confidential informant as a witness, Mr. Williams' federal supervised release was revoked based on the same allegations as in the state case.

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based on evidence created by that confidential informant, who was never presented for cross-examination.

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The district court aired, in this case, when it revoked Mr. Lloyd's supervised release, based on a finding that he distributed to that confidential informant.

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I think there were several gaps in the case here.

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So the confidential informant was the primary, I would say, adverse witness in the case.

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She was the only eyewitness to the interaction in the vehicle.

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She was the witness who initiated the alleged by, who set up.

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alleged by, and she was the person who created the video that was then the primary evidence that the District Court relied on to find the violation, and the government did not present her for prosecution.

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The officers in the case

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admitted that they did not fully search the informant prior to the buy because the informant was a woman and the two officers involved were men and so they did not fully search, for example, underneath clothing, underneath a bra, when the

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package of fentanyl that she provided to them was a one inch by one inch plastic bag.

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So they essentially did not search the places where someone would hide an item of that size if they were attempting to conceal it.

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And that undermines the reliability of the buy.

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The government never presented any additional evidence about the ferocity or reliability of the informant.

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For example, whether she had participated in similar buys in the past and what the results were, whether she had previously provided truthful information, what her incentive was to initiate this buy, what her involvement was with drug trafficking,

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whether she had charges, she was looking off, why she would initiate this alleged by.

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None of the evidence about the confidential informant and her ferocity was introduced to perhaps fill the gaps of the inadequate procedures.

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The officers did not recover.

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They testified they gave the informant $200 in marked bills to conduct the buy, but they never recovered those bills, so they could not trace what happened to them.

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The officers also testified that they did not listen.

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They either did not listen or did not remember if they listened to the conversations between the informant and Mr. Williams prior to this interaction in the vehicle.

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So the only evidence

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in record at all that they were meeting in this parking lot for the purpose of the drug trade action was this untested hearsay by a confidential informant who told the officer that she could set up a buy and buy fentanyl from someone who went by the name of Reese.

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But the officers did not listen to the conversations where she set up the meeting with Mr. Williams.

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So her hearsay was the only evidence that this had anything to do with drugs prior to the meeting.

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I do think it's significant.

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I want to focus a little bit more on the search, because the officers, two officers both testified that they did not fully search the informant.

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And this court's case law provides, and other circuits' case law provides that, you know, controlled by

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is can be reliable evidence of drug distribution if the normal, the common formalities of the control element, you know, the things that make it a controlled situation are substantially followed.

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And he, one of those formalities is searching the informant prior to being attempted by to ensure that this person does not already have the contraband themselves

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so that then if they go to the interaction and then we both comprehend that it's an inference that they received it during this interaction.

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Do any of these cases involve a charge that's where the burden of persuasion is preponderance of the evidence rather than reasonable

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So the cases, and I'm citing the brief, are actually even on lesser standard, they are probable cause cases.

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And they are typically warrant cases, usually, where the evidence supporting issuance of a warrant was a controlled lie.

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of cases where because it wasn't adequately controlled, the court found that there wasn't probable cause?

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There is one district court case cited in the briefs.

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I am blanking on the name of it.

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It's, I believe, out of the Western District of Kentucky, where the court said there was no probable cause for the warrant because the buy was not sufficiently controlled.

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And one of the things that did not happen was an adequate search of the informant

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prior to the buy.

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And that again is a probable cause case, which is a lesser standard than preponderance of the evidence.

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So if it's not even sufficient for probable cause without sufficient control, then it's necessarily not sufficient for preponderance of the evidence.

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And again, I think it's important, the key fact I think is, I have in my memory that I couldn't find the case that there was a quote from Justice Scalia about if you're looking for a lawn mower, you can't look under the bed.

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The scope of the search is defined by what you're looking for.

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Well here, what they were looking for when they were searching the informant is a one inch by one inch package of drugs.

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So if that's what you're looking for, the search has to be at least complete enough that you're searching the places where something like that could reasonably easily be sealed.

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Was there a camera on?

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It wasn't clear to me what was recorded visually here.

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But there was something on her, on the informant, right?

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She had some sort of, was it a camera?

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Oh, the recording device.

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Yeah.

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Yeah, there was a camera.

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The video, I don't think it's in the record exactly where it was or what it looked like, but the video was from the perspective.

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It was clearly on the informant's person.

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Was there also a camera in the police vehicle?

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I don't, if there was, I don't believe any video.

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So it was, the camera on the informant was on while she was in the police vehicle with the officer, but I don't think there was like a separate camera in the vehicle.

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If there was, it wasn't, video from that angle was not introduced.

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So if you watch the video, the video starts in the officer's car and then the informant gets out of the car, walks over.

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There's no testimony, no evidence about specifically where it was on her body.

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Can you tell by what's being shown?

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I mean, I don't think so.

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I mean, I can't.

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I think it would be purely speculative to say where it was.

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If it were on her forehead, I would think that the person who purportedly sold the drugs would be suspicious.

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Why does this woman have a video camera on her forehead while we're talking?

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I mean, it's obviously something that's small enough to be concealed from the naked eye, but I don't think it tells us, there's anything in the record that tells us, like, how or where it was, what, I think, mounted or connected.

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I was wondering if there's anything that could show her movements

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So when I watch it, I mean, I don't think it can be ruled out because you just don't see, the video just doesn't show that perspective.

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It just shows, it's almost like the, when officers are wearing a body camera, you can't necessarily tell what the officer wearing the camera is doing because it's, you know, it's basically, it's a similar perspective, at least when I watch the video.

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And again, I think it's, you know, so we have this failure to search for an item that is this small to search in the, I think, the obvious areas where someone would hide something that size if you were attempting to conceal it.

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the government had provided additional information to fill that gap, like evidence about her veracity or her reliability, like if she had done similar buys in the past and what the results were, if she had provided truthful information in the past, if there was

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some basis to bolster her reliability, then maybe that could fill the gap of, I think, the inadequate search.

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But we don't have that here.

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The government didn't even identify the informant.

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There's no name.

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There's no information about her involvement with drug trafficking.

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There's no information about whether she had charges at the time, whether what her criminal history was.

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There's no information about anything about her.

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So there was nothing to fill the gap of the inadequate search.

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And then I do think it's, so two of the errors in this case are fairly closely related because, you know, we did not get the opportunity to cross the confidential informant and those would have all been very bright areas for cross-examination had she been presented as a witness at the hearing.

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Did you know, did the defense know her identity?

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Had that been disclosed?

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I think it's clear from the video that Mr. Williams knows who she is.

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He knows her, but we didn't have any information about any of her past involvement.

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If she had provided truthful information around truthful information in the past, if she had pending charges for criminal history, none of that.

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But Mr. Williams recognizes her in the car.

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And again, so I think that error is closely tied to the second issue in the case, which is the Rule 32.1 v.

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2 issue, which entitles Mr. Williams to an opportunity to question adverse witnesses unless the interests of justice

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don't require the witness to appear.

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And this court's case law applies that means that there's a balancing test, that the court should balance Mr. Williams' interest in cross-examination against the government's good cause for not producing the witness.

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Doesn't that apply only to hearsay testimony?

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So this court's case law recognizes that it's usually about hearsay, but there's nothing in the rule that limits it to hearsay.

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The rule speaks of adverse witnesses.

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not hearsay, and this court has said a couple of times that while it's usually applied to hearsay, this court has either said or assumed it's not limited to hearsay.

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For example, I think the Fance case was about cross-examination by Zoom, and this court at least assumed and said it's not hearsay because the witness

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appeared on Zoom and was available for questioning by Zoom, but they still assumed that the rule would still require the balancing test before the witness could be allowed to appear by Zoom versus in person.

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So even though it wasn't hearsay, the court still assumed the rule would apply.

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In what way is she a witness if she's not testifying to something

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So here, the group says you are right to question adverse witnesses.

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Here, she's the eyewitness.

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She's the only eyewitness.

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But that's not what we mean by witness.

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A witness is someone who presents evidence of the proceeding, who testifies.

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I'm not sure we would call someone, unless it's hearsay,

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So let me answer this and then try to reserve the remainder of my time.

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The rule says adverse witnesses.

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It's a limited due process right to question adverse witnesses.

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Here, I think she is the adverse witness because she's the only eyewitness.

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She created the video, which was the primary evidence admitted against Mr. Williams.

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And she initiated the by.

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And there was hearsay from the informant admitted because, like I said before, the only evidence in the record that supported or showed that this meeting in the parking lot had anything to do with drugs was an out of court statement from the informant to the officer.

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Let me cut to the quick.

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Do you have any authority that someone whose statements are not admitted for their truth is an adverse witness under this rule?

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No, but I think it is more typical that it's about hearsay.

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But again, this court has assumed it's not limited to hearsay.

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And the text of the rule does not say anything about hearsay.

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It says adverse witnesses.

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So I think that, and here, I think there could be closer cases on margins, but here where she's the only eyewitness, she's the witness who set up the by, who initiated the by, and hearsay from her was admitted through the officer's testimony, but through his testimony that she said she could set up a by, that she is an adverse witness under the rule.

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Well, for you familiar with Roviero, I mean there are cases there.

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of the prosecution is required to disclose confidential informant who was present at the time of the by, that sort of thing.

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But it's not a confrontation right.

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It's a due process right.

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It's quite limited.

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But I don't think they relied on the confrontation clause.

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Well, we're not relying on the confrontation clause either, because rule 32.1 is rooted in due process, not confrontation.

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So it is a rule that entitles a defendant an opportunity to question an adverse witness.

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It doesn't speak of hearsay, it speaks of adverse witnesses.

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I will preserve a little time.

[00:15:50] Speaker 03:
Good morning, Your Honor.

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James Brown from the government.

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Your Honor, I'd like to start with issue one first, and then I'm going to move on to issue two and discuss the failure to serve the issue that my colleague brought up.

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In discussing issue one, I think I need to start with a misstatement.

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The defendant has stated many times in an argument this morning that there was hearsay admitted at the revocation hearing.

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In fact, there's no record evidence that any hearsay was admitted at the revocation hearing.

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What my lawyer is referring to is a statement that the officer testified that the CIA advised him that they could purchase powder fentanyl from a subject who goes by the name of Reese.

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That's on record volume three, page 35.

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The defendant says that is hearsay, but hearsay has a definition.

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has to be offered for the truth of the matter asserted.

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There's no evidence in this record that the government offered that statement for the truth of the matter asserted.

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There's none.

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What was it offered for?

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It could have been offered to show why they were at the scene, but an objection would have cleared it up.

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The defendant has the duty to object.

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Look at the frost quote on page 28 of our brief in the footnote.

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It's a determinative fact that is missing from the record due to defendant's failure to object.

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And this court is not going to find plain error where a determinative fact of record is due to the defendant's failure to object.

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Here, the determinative fact of record that she has to rely on for her argument is that we offer that statement for the truth of the matter asserted.

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But there's no evidence of that in the record at all.

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So that determinative fact upon which her hearsay argument

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realized entirely is not in the record.

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There's no record evidence for it.

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So we take great exception to the statement that we offer any hearsay at this revocation hearing.

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We did not.

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Is it typical at revocation hearings to make objections to hearsay since it's often admitted?

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Well, you know, the rules say you have to make a precise objection that's deft enough to alert the trial court to the precise ground that evidence is inadmissible.

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Here she's saying the evidence should not be admitted because of hearsay.

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Her argument is based upon the fact that hearsay was admitted.

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So you would think that, yes, in a replication hearing, the defendant would have a duty to object to hearsay.

[00:18:22] Speaker 02:
To preserve it.

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So our review in that circumstance would be plain error, is that right?

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Correct.

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It's preservation 101, plain error applies.

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Exactly, Your Honor.

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There's another point.

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There's also another determinant of the fact that it's missing from the record due to the defendant's fetish object.

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And that is the fact that she assumes or speculates that the district court may have relied upon this supposed hearsay statement in finding that the defendant sold the fentanyl.

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In fact, there's no

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and faces for any inference whatsoever that the district court relied on this so-called pure state statement in finding that the defendant sold the fentanyl.

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That's another determinative fact that is missing from the record due to the defendant's failure to object.

[00:19:08] Speaker 03:
That being said, I'm going to move to my three main points that basically summarize issue one.

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Point number one, no testimonial hearsay

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was admitted at the revocation hearing, nor was any testimonial hearsay relied upon.

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Number two, because no testimonial hearsay was admitted at the revocation or relied upon, any confrontation right the defendant would have had under the Fifth Amendment was not implicated.

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Number three, for this reason, rule 32.1 B2C was never triggered and the district court did not even have a duty to address it because it was never triggered.

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In other words, there was no confrontation right under the fifth amendment in play in this case at any time.

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That's why there was no error for not conducting the balancing test.

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That's why there's no plain air.

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That's why there's no harmless air.

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That's why there's no effect on substation.

[00:20:13] Speaker 03:
Right.

[00:20:14] Speaker 02:
She said that this court has stated that the rule applies is not limited to hearsay.

[00:20:24] Speaker 03:
Well, this court would disagree.

[00:20:26] Speaker ?:
She says that this court has said that.

[00:20:30] Speaker ?:
No, she says this court has never said that it doesn't.

[00:20:34] Speaker ?:
I think that's what she said.

[00:20:35] Speaker 03:
This court has never said that it doesn't apply.

[00:20:38] Speaker 03:
I don't think she said it.

[00:20:40] Speaker 02:
This court has never said it doesn't apply if it's not hearsay.

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But has the court ever said this rule is not limited to hearsay?

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This court has never said that the rule applies to non-hearsay.

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Has it ever left that, has it ever explicitly left that issue open?

[00:21:02] Speaker 03:
In Founts, in the Founts case, which we cited in our brief, the court considered a case where non-heterosei was an issue.

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And the court said, assuming without deciding that, the rule applies.

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So the court assumed but did not decide that non-heterosei applies.

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So it's technically the question that's been left open by this court.

[00:21:18] Speaker 03:
We do cite two other circuits that have said that the rule does not apply to non-heterosei.

[00:21:25] Speaker 03:
That would be the Textillera case from the first circuit.

[00:21:27] Speaker 02:
These are in your brief.

[00:21:28] Speaker 03:
Yeah, for Taxier, First Circuit, 2023, the Williams case, the Second Circuit from 2006.

[00:21:35] Speaker 03:
But if the court, the reason the hearsay would not apply or the rule wouldn't apply to non-hearsay is because as this court applies the balancing test under Rule 32, the court applies the balancing test.

[00:21:51] Speaker 03:
Part one of the balancing test is balancing

[00:21:54] Speaker 03:
person's interest in the constitutionally guaranteed right to confrontation, right?

[00:21:58] Speaker 03:
That's how the court said it in Jones, the constitutionally guaranteed right to confrontation.

[00:22:03] Speaker 03:
You don't have a constitutionally guaranteed right to confrontation unless there's testimonial hearsay that's presented.

[00:22:09] Speaker 03:
That's why hearsay is required.

[00:22:13] Speaker 03:
That's why it's required.

[00:22:14] Speaker 03:
We also, you know, and we found a pretty good article.

[00:22:18] Speaker 03:
We reference it in the briefs.

[00:22:20] Speaker 03:
It's called Frenderfeld, Sixth Amendment, Fifth Amendment, something like that.

[00:22:24] Speaker 03:
But it goes over this issue in depth.

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And we think it's a good resource for the court if the court wants to look at it.

[00:22:30] Speaker 03:
But that's why.

[00:22:31] Speaker 03:
So that's why we talk about the three points.

[00:22:33] Speaker 03:
Number one, no hearsay, because there's no hearsay.

[00:22:35] Speaker 03:
Number two, no confrontation right.

[00:22:37] Speaker 03:
Number three, because no confrontation right.

[00:22:39] Speaker 03:
Rule 32 simply does not apply.

[00:22:41] Speaker 03:
Therefore, there's no basis for any claim of error whatsoever.

[00:22:46] Speaker 03:
What about sufficiency of the evidence?

[00:22:48] Speaker 03:
So let's get to her sufficiency claim.

[00:22:52] Speaker 03:
And I say her.

[00:22:53] Speaker 03:
I don't mean that disrespectfully.

[00:22:55] Speaker 03:
My colleague says sufficiency.

[00:22:56] Speaker 03:
It's sufficiency based upon the failure to search.

[00:23:01] Speaker 03:
The court straightforwardly dealt with this issue.

[00:23:04] Speaker 03:
Keep in mind that we look at this issue based upon the standard, which is preponderance of the evidence and clear error.

[00:23:12] Speaker ?:
And of course, the court looks at

[00:23:13] Speaker 03:
had the evidence in the light most favorable to the District Court's ruling.

[00:23:16] Speaker 03:
So we have these three standards of review that would look at the sufficiency of the evidence through, right?

[00:23:21] Speaker 03:
Well, the court considered and discussed the fact that the officers did not perform as thorough a search as they could have of the CI because they were male and she was female.

[00:23:34] Speaker 03:
The court talked about that.

[00:23:36] Speaker 03:
And I put the court's comments on page 42 of our brief.

[00:23:40] Speaker 03:
I don't need to read them here for the court.

[00:23:41] Speaker 03:
The court has them, but they're on page 42.

[00:23:44] Speaker 03:
But the court said, even if the search wasn't as complete as it could have been, I find it's more probably true than not that the defendant sold the fentanyl to the C9, because we have a video.

[00:24:01] Speaker 03:
And the video shows what the court thought looked very much like a drug transaction, and called the circumstances they just didn't like.

[00:24:11] Speaker 03:
She said, the court said, it's not just like somebody coming off the street and saying, hey, I bought these drugs from this defendant on the street.

[00:24:19] Speaker 03:
There's a video that was set up.

[00:24:22] Speaker 03:
They arrived at the scene.

[00:24:24] Speaker 03:
They talked on the phone.

[00:24:25] Speaker 03:
They said, I'm here.

[00:24:26] Speaker 03:
You can hear that on the video.

[00:24:28] Speaker 03:
Yeah, I'm here.

[00:24:29] Speaker 03:
The CI goes to the court.

[00:24:30] Speaker 02:
What does the video show after she leaves the officer's vehicle?

[00:24:36] Speaker 02:
It shows her, oh, after she leaves the officer's video.

[00:24:40] Speaker 03:
to go toward the purported body.

[00:24:43] Speaker ?:
OK.

[00:24:45] Speaker 03:
It shows, you know, I think it doesn't show really anything.

[00:24:51] Speaker 03:
It shows an arriving scene.

[00:24:53] Speaker 03:
She's getting a call.

[00:24:54] Speaker 03:
They're talking.

[00:24:55] Speaker 03:
He's saying, I'm here.

[00:24:56] Speaker 03:
She's saying, OK.

[00:24:57] Speaker 03:
They park a few stalls away.

[00:24:59] Speaker 03:
The officer and the CI park a few stalls away.

[00:25:02] Speaker 03:
CI gets out of the car and goes into the defendant's car.

[00:25:05] Speaker 03:
So between the time she gets out of the car and goes in, I don't think you see very much of anything.

[00:25:09] Speaker 02:
What about when she's in the other car?

[00:25:11] Speaker 02:
Does she get in the other, in the defendant's car?

[00:25:15] Speaker 02:
She gets in the defendant's car.

[00:25:17] Speaker 02:
And you can hear conversation?

[00:25:18] Speaker 03:
You can hear conversation.

[00:25:20] Speaker 03:
And I describe it in detail.

[00:25:22] Speaker 03:
Is it in English?

[00:25:23] Speaker 03:
It's in English.

[00:25:24] Speaker 03:
OK.

[00:25:25] Speaker 03:
I describe it in detail in our brief with lots of record sites.

[00:25:30] Speaker 03:
She talks that they don't talk about, here's the drugs.

[00:25:33] Speaker 03:
These are the drugs.

[00:25:33] Speaker 03:
They don't mention the word drugs.

[00:25:34] Speaker 03:
And you don't see the fentanyl being

[00:25:37] Speaker 03:
handed back and forth, and you don't see money being handed back and forth.

[00:25:41] Speaker 03:
You don't see that.

[00:25:42] Speaker 03:
You do see them discussing, can I put you in touch with my friend Daniel, talking about selling two G's for $200.

[00:25:50] Speaker 03:
And you see basically, you see a scene from, she's sitting next to him, and you can see the defendant and the CI's, I think, left leg.

[00:26:03] Speaker 03:
And you can see the defendant has a gun on his lap.

[00:26:06] Speaker ?:
But that's really all you can see.

[00:26:08] Speaker 03:
You can see part of the space sometimes, but it's not a great camera angle.

[00:26:13] Speaker 03:
It's not an audio quality video.

[00:26:17] Speaker 03:
But that being said, the District Court knew and considered and took into account that this search was not as complete as it could have been and found that it was still more probably true than not that the defendant sold the fentanyl to the CI.

[00:26:34] Speaker 03:
And under the standard to review,

[00:26:36] Speaker 03:
meaning clear error or ponderance like misfavorable, that ruling, the facts cited by the district court are a plausible interpretation of the facts.

[00:26:46] Speaker 03:
They're supported by the record and therefore the district court's finding cannot be clearly reversed.

[00:26:54] Speaker 03:
Thank you.

[00:26:54] Speaker 03:
Okay, I yield the remainder of my time.

[00:26:58] Speaker 02:
I'm going to give her a minute of your time since you yielded some.

[00:27:02] Speaker 02:
Otherwise, you were down to the last couple seconds, I think.

[00:27:05] Speaker 02:
No, nine seconds.

[00:27:11] Speaker 01:
I do just want to briefly address that.

[00:27:14] Speaker 01:
I did not need to overstate that case.

[00:27:15] Speaker 01:
What I need to say about grounds is what the government said as well, which is that in that case, this court assumed the rule applied to non-hearsay.

[00:27:22] Speaker 01:
It doesn't hold that.

[00:27:24] Speaker 01:
I recognize the limitations of what it does say.

[00:27:27] Speaker 01:
But it does at least assume the rule applies to non-hearsay.

[00:27:32] Speaker 01:
The video is in the recording so it is available for the court to watch.

[00:27:37] Speaker 01:
In the conversation in the car shown on the video, Mr. Williams and the informant, they talk about who her boyfriend is, they talk about food stamps, they talk about Mr. Williams wanting to buy something from her or one of her friends.

[00:27:49] Speaker 01:
So the conversation ended.

[00:27:50] Speaker 01:
Did he say something about selling 2 G's?

[00:27:53] Speaker 01:
So that comes in the context that she says she's going to put him in touch with her friend.

[00:28:01] Speaker 01:
But again, the government didn't produce the confidential informant in the district court to explain what that meant.

[00:28:07] Speaker 02:
So what was the context?

[00:28:08] Speaker 01:
In the context she says talks about I'll put you in touch with my friend and he says I'll sell her two G's for $200 Thank you counsel case submitted counsel excused we're in