[00:00:00] Speaker 04:
Next case for argument is United States versus Wood, docket 23-5027.

[00:00:06] Speaker 04:
Counsel, we're ready for your argument.

[00:00:11] Speaker 01:
Thank you, Your Honor.

[00:00:12] Speaker 01:
Counsel, may it please the court.

[00:00:14] Speaker 01:
My name is Shira Keval.

[00:00:16] Speaker 01:
I'm an assistant federal public defender, and I represent Craig Wood.

[00:00:18] Speaker 01:
It's my plan today, unless the court has other questions, to focus on federal rule of evidence 90211 and the district court's error here in allowing the government to rely on a

[00:00:30] Speaker 01:
late disclosed and incomplete certificate to authenticate crucial evidence of the Indian status element over Mr. Wood's objection.

[00:00:41] Speaker 01:
Federal rule evidence 902.11 is a fairly recent innovation that provides a limited exception to the traditional rule, which is that a party wishing to introduce business records for their truth

[00:00:52] Speaker 01:
must call live witnesses, subject to cross-examination, to not only authenticate the records, but also to provide all required foundational evidence for their admission for their truth.

[00:01:04] Speaker 01:
In order to utilize this limited exception, a party has to comply with two strict requirements that are contained within the text of the rule itself.

[00:01:12] Speaker 01:
The first, the written notice requirement, requires pretrial disclosure not only of the records themselves, but also of the certificate of authentication.

[00:01:22] Speaker 01:
to allow the opponent fair opportunity to challenge both the records and the certificate.

[00:01:29] Speaker 04:
Is the rule really that clear about that?

[00:01:32] Speaker 04:
Because it sets off the second requirement in dashes.

[00:01:37] Speaker 04:
And then the consideration is no prejudice to the defendant.

[00:01:41] Speaker 04:
In other words, I agree with you the intent to offer or the intent to use the exhibit, the certificate has to come before trial, but I'm not sure about the middle condition there.

[00:01:53] Speaker 04:
This is a matter of grammar.

[00:01:55] Speaker 01:
I think as a matter of grammar, it's clear both from the current version of the rule and from the version before the 2011 stylistic change that it definitely does.

[00:02:04] Speaker 01:
So it says before trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record

[00:02:12] Speaker 01:
M dash, and must make the record and certificate available for inspection.

[00:02:17] Speaker 01:
M dash, so that the party has a fair opportunity to challenge that.

[00:02:20] Speaker 01:
And so there, because of the M dashes on both sides, I think it's clearly part of the notice requirement.

[00:02:25] Speaker 04:
Well, if it is, why do you even have a notice requirement?

[00:02:28] Speaker 04:
Because the record and the certificate would have to be provided before the trial, and therefore that would qualify as the notice, wouldn't it?

[00:02:38] Speaker 01:
I think

[00:02:40] Speaker 01:
There are ways to give a notice.

[00:02:42] Speaker 01:
So you can give, say, your expert notice and say, my expert is going to get up and testify.

[00:02:47] Speaker 01:
But you wouldn't give their report.

[00:02:49] Speaker 01:
That's what the rule used to be.

[00:02:51] Speaker 01:
At the time of this trial, too, now you have to make this pretrial notice, and that includes providing the signed report from your expert.

[00:03:00] Speaker 01:
Here, the same is true.

[00:03:01] Speaker 01:
Before trial, you have to give reasonable written notice, and you must make these available.

[00:03:05] Speaker 01:
Regardless, no notice is given.

[00:03:09] Speaker 03:
You either had the underlying document or you knew about it before December 15th?

[00:03:17] Speaker 01:
Correct, Your Honor.

[00:03:17] Speaker 03:
Right.

[00:03:18] Speaker 03:
Did you have the document?

[00:03:19] Speaker 01:
My understanding is yes.

[00:03:21] Speaker 01:
The purported tribal document was disclosed and discovered.

[00:03:24] Speaker 03:
So it's the certification setting the foundation is what you did not get or get notice of until after jury selection?

[00:03:38] Speaker 01:
Correct, Your Honor.

[00:03:39] Speaker 01:
And Your Honor, I think that that's important, right?

[00:03:42] Speaker 01:
Because this, we talk about authentication, but when you look at the second requirement of Rule 902.11, because this is about business records, business record authentication has always been different, and it's different here.

[00:03:55] Speaker 01:
Because the authentication here needs to not only authenticate, yes, this is what it purports to be, but that it provides all necessary foundational evidence for the admission of that record.

[00:04:08] Speaker 02:
You had some evidence of blood before trial, didn't you?

[00:04:14] Speaker 01:
So Your Honor, again, we have this certificate of Indian blood.

[00:04:17] Speaker 01:
I'd ask the court to really take a close look at it.

[00:04:19] Speaker 01:
It's in the Supplemental Record, Volume 1, at page 53.

[00:04:23] Speaker 01:
What are you talking about?

[00:04:25] Speaker 03:
The underlying document?

[00:04:26] Speaker 01:
Yes.

[00:04:27] Speaker 01:
The underlying document, which is complicated because it's called a certificate.

[00:04:31] Speaker 01:
But yes, the underlying document.

[00:04:32] Speaker 01:
It is a weird record.

[00:04:34] Speaker 01:
If you take a look at it, almost everything on it is typewritten.

[00:04:38] Speaker 01:
It's typewritten that it's July 23rd, 2021.

[00:04:41] Speaker 01:
Typewritten enrollment status enrolled.

[00:04:45] Speaker 01:
Typewritten a blood quantum.

[00:04:47] Speaker 01:
But this doesn't get the government to the end because this date, July 2021, is after the offense conduct.

[00:04:53] Speaker 01:
And they need to prove that he's an enrolled member or that he's recognized as an Indian by a tribe or the federal government in February 2021.

[00:05:00] Speaker 01:
So then what you have is you have this handwritten notation, enrollment date, colon, April 29th, 1995.

[00:05:08] Speaker 01:
So we have something that, at least by appearance, was added after the fact.

[00:05:13] Speaker 04:
I don't know why you can say that.

[00:05:15] Speaker 04:
There's no place for it to be typed on the form, is there?

[00:05:19] Speaker 01:
No, exactly.

[00:05:20] Speaker 01:
So there is a place to say enrollment status.

[00:05:23] Speaker 04:
And so it's an open question when that was added.

[00:05:26] Speaker 01:
That's correct, Your Honor.

[00:05:27] Speaker 04:
And the witness was available for the defense to subpoena.

[00:05:31] Speaker 01:
And Your Honor, I think that that is where I would step back for a second, because yes,

[00:05:37] Speaker 01:
Is it humanly possible that that person could have been subpoenaed?

[00:05:42] Speaker 01:
Yes.

[00:05:42] Speaker 01:
But the problem is, is that the defense attorney had no reason to, even seeing this weirdness, even acknowledging, hey, I don't know if this is really business record.

[00:05:50] Speaker 01:
I have no idea how the government's going to get it into evidence.

[00:05:54] Speaker 01:
The defense attorney, by the time he gets to trial and as trials approaching, the government no longer can provide a certificate of authentication because it's given no notice and made no disclosure.

[00:06:04] Speaker 01:
So the defense attorney rightly relies on that.

[00:06:07] Speaker 01:
As Federal Rule of Evidence 902.11 says it may, the defense attorney says, I'll wait till this witness gets to court.

[00:06:14] Speaker 01:
I will cross-examine them.

[00:06:16] Speaker 01:
That is my traditional route to undermining the government's attempt to provide authentication and to undermine their attempt to provide foundation.

[00:06:25] Speaker 01:
But then they show up at court, and the witness is never going to come.

[00:06:29] Speaker 03:
And the witness was listed

[00:06:31] Speaker 03:
of three possibilities on the 18th of December or so, right?

[00:06:37] Speaker 01:
My understanding is that the witness Sunday night before the Monday trial, the government filed a new witness list saying, tribal authentication witness.

[00:06:47] Speaker 01:
I don't remember exactly how specific it was.

[00:06:49] Speaker 03:
So they identified the witness.

[00:06:51] Speaker 01:
The witnesses were identified in the middle of a white deer.

[00:06:54] Speaker 01:
The potential witnesses were identified in the middle of a white deer.

[00:06:56] Speaker 01:
So there is

[00:06:59] Speaker 01:
The defense doesn't have to mitigate the government's case.

[00:07:03] Speaker 01:
The government must abide by the rules of evidence and call the witnesses that it needs to and introduce the documents that it needs to, to prove its case.

[00:07:11] Speaker 01:
And the defense attorney is allowed to rely on the idea that he gets to respond to that.

[00:07:17] Speaker 03:
The record does not indicate whether the witness, was it McCoy?

[00:07:22] Speaker 01:
Correct.

[00:07:23] Speaker 03:
Whether the witness was present.

[00:07:26] Speaker 01:
That's correct.

[00:07:26] Speaker 03:
On the morning of the trial, there's no evidence that was so.

[00:07:30] Speaker 01:
That's correct.

[00:07:31] Speaker 03:
So that any subpoena, when you first find out about them on the day of trial, the name, you can't get a subpoena out by then, can you?

[00:07:40] Speaker 01:
No, Your Honor.

[00:07:40] Speaker 03:
I mean, this is a real big problem.

[00:07:42] Speaker 03:
And the record doesn't indicate whether the witness McCoy was present, so that they could be interviewed, at least.

[00:07:52] Speaker 01:
That's right, Your Honor.

[00:07:52] Speaker 01:
We don't have any of those facts.

[00:07:54] Speaker 01:
So we have a situation where, yes, hypothetically before trial, they could have looked at this underlying document and said, the defense could have tried to subpoena a witness, but it had no reason to.

[00:08:06] Speaker 01:
So then when you show up at trial, you finally have a reason to, because you've just been told that no witness is coming, then yes, there's no opportunity.

[00:08:15] Speaker 01:
There's no evidence on the record that the person came to court as opposed to emailing this or sending it by courier, and again,

[00:08:23] Speaker 01:
This is right before Christmas.

[00:08:24] Speaker 01:
There's just no reason to assume that that is something that happened here, especially given the government's scramble during board year to even identify who the witness is going to be.

[00:08:34] Speaker 04:
The witness signed it that day, though.

[00:08:37] Speaker 01:
It does say that the witness signed it in December 2021.

[00:08:40] Speaker 04:
The judge was willing to entertain both sides' arguments as far as not only the witness but the certificate.

[00:08:49] Speaker 04:
And the defense counsel had an opportunity to speak and tell the judge why not.

[00:08:54] Speaker 04:
and never said anything about it might have been emailed or something like that.

[00:09:00] Speaker 01:
Well, there wouldn't be a problem with it being emailed.

[00:09:02] Speaker 01:
So there would be no reason to raise an objection to that.

[00:09:04] Speaker 04:
Well, I'm talking about the subpoena ability.

[00:09:07] Speaker 01:
Oh, in terms of the subpoena ability.

[00:09:09] Speaker 01:
So what the defense attorney did say is we have no way to know if this witness, if this individual, McCoy,

[00:09:17] Speaker 01:
even looked at this underlying document in the last seven months.

[00:09:21] Speaker 04:
Who cares?

[00:09:22] Speaker 04:
Why would that matter whether the witness looked at it in the last seven months, so long as she... Well, I guess you'd have to know what she was certifying.

[00:09:31] Speaker 04:
And that strongly suggests when she signs her name to the certificate that she did.

[00:09:36] Speaker 04:
Doesn't it?

[00:09:39] Speaker 01:
I don't think that that suggests that.

[00:09:41] Speaker 01:
You would hope

[00:09:42] Speaker 01:
But I think what's more telling here is what the government's response is.

[00:09:45] Speaker 01:
The government doesn't say, what are you talking about?

[00:09:47] Speaker 01:
Leslie McCoy is in the back room and I just showed her both documents.

[00:09:51] Speaker 01:
I don't know if it's him or her.

[00:09:52] Speaker 01:
I just showed McCoy both documents.

[00:09:55] Speaker 01:
And that's what happened.

[00:09:56] Speaker 01:
No, the government's only defense that it says to the district court is, well, it's the same person who's signing both.

[00:10:02] Speaker 01:
And the district court says, oh, yeah, it's the same person that's signing both.

[00:10:05] Speaker 01:
What's the problem?

[00:10:06] Speaker 01:
But when we're looking at the question that Judge Murphy was asking about is, what was the defense's options at this time?

[00:10:13] Speaker 01:
That is yet almost an affirmative indication on the record that in fact, Leslie McCoy is not president.

[00:10:18] Speaker 04:
Well, here's an option.

[00:10:20] Speaker 04:
The defense has heard the court's ruling.

[00:10:23] Speaker 04:
and therefore knows that this is coming into evidence.

[00:10:27] Speaker 04:
And if it comes into evidence and it stands, then the only remedy is on appeal.

[00:10:33] Speaker 04:
And so the defense's option is to say, let's get this lady subpoenaed.

[00:10:37] Speaker 04:
And then if they ring the office and they say she's in Tahiti, go tell the district judge, we can't find this lady, at which point the district court might well reconsider.

[00:10:50] Speaker 01:
We never require any party to mitigate harm in that way.

[00:10:56] Speaker 04:
Well, we're talking prejudice.

[00:10:58] Speaker 04:
Prejudice is part of this rule.

[00:11:00] Speaker 01:
I disagree that prejudice is part of the rule.

[00:11:04] Speaker 01:
I think that it is possible to say that if this court wants to reach that, we can.

[00:11:09] Speaker 01:
And I'd love to have a discussion about prejudice.

[00:11:11] Speaker 01:
I don't believe that below.

[00:11:13] Speaker 01:
I think the objection is sufficient.

[00:11:15] Speaker 01:
This is a rule, not a suggestion.

[00:11:16] Speaker 01:
This contains no exceptions in the text.

[00:11:20] Speaker 01:
no exceptions in this court's case law, and no reason to create exception.

[00:11:24] Speaker 01:
Rule 90211 is the exception.

[00:11:26] Speaker 04:
So what would have worked here?

[00:11:27] Speaker 04:
I believe I'm not handing out a blue ribbon to the government because this didn't have to be this way.

[00:11:33] Speaker 04:
But if the government would have handed these documents before the voir dire, then would you say goodbye us?

[00:11:41] Speaker 01:
No, Your Honor.

[00:11:43] Speaker 01:
You mean that Monday morning?

[00:11:45] Speaker 04:
Yes.

[00:11:45] Speaker 01:
No, I think maybe we would have a technical quibble on whether it was before trial or after trial had already begun.

[00:11:54] Speaker 01:
But it has to be sufficiently before trial to provide the opportunity to contest.

[00:11:59] Speaker 01:
So then what does that mean?

[00:12:01] Speaker 01:
I think that the traditional route is for the government to call a live witness subject to cross-examination.

[00:12:08] Speaker 01:
And so sufficiently before trial to allow a defense attorney

[00:12:16] Speaker 01:
to challenge both the underlying document and the certificate means it has to be early enough to get that live witness into court.

[00:12:24] Speaker 01:
And Sunday morning, Sunday at noon, excuse me, Monday morning, Monday at noon was not early enough for that.

[00:12:29] Speaker 01:
I couldn't find any case that said less than three days was sufficient.

[00:12:33] Speaker 04:
OK, 10 days.

[00:12:33] Speaker 04:
Would that have been fine?

[00:12:35] Speaker 01:
I believe so, Your Honor, yeah.

[00:12:36] Speaker 04:
And on December 10th, certainly the defense had the certificate of Indian blood.

[00:12:42] Speaker 04:
had had that for weeks and weeks.

[00:12:44] Speaker 01:
I believe so.

[00:12:45] Speaker 04:
And knew who had signed that and where it came from.

[00:12:49] Speaker 04:
Could have picked up the phone, and I understand you're going to say we don't have to do anything, but could have picked up the phone.

[00:12:58] Speaker 04:
And on the December 10th, the government files a trial

[00:13:04] Speaker 04:
And amongst the things that are listed are exhibit number 10, which trial verification with Sunnita Nation.

[00:13:15] Speaker 04:
And there's not a witness listed to introduce that.

[00:13:19] Speaker 04:
Isn't that itself notice that we're going to introduce this by 902?

[00:13:22] Speaker 01:
No, Your Honor.

[00:13:25] Speaker 04:
Just by pure logic.

[00:13:26] Speaker 01:
Why not?

[00:13:26] Speaker 01:
No, Your Honor.

[00:13:27] Speaker 01:
Courts have all required, every court to interpret this, has required affirmative notice.

[00:13:32] Speaker 01:
They've required disclosure of the authentication certificate itself.

[00:13:36] Speaker 01:
So to say that the government hasn't yet figured out how they're going to get something to evidence, that's not affirmative notice.

[00:13:42] Speaker 04:
Of course it was disclosed.

[00:13:44] Speaker 04:
And the question is whether or not it was disclosed so that party has a fair opportunity to challenge it.

[00:13:50] Speaker 01:
And it was not disclosed before trial.

[00:13:52] Speaker 01:
I draw this court's attention to Melendez Diaz.

[00:13:55] Speaker 01:
There, the government said, I don't know what the problem is.

[00:13:57] Speaker 01:
Sure, let's say this is testimonial hearsay.

[00:14:00] Speaker 01:
The defense attorney could have called this person as a witness.

[00:14:02] Speaker 01:
And the Supreme Court said no.

[00:14:04] Speaker 01:
That's not what's required.

[00:14:06] Speaker 01:
You, the government, introduce this evidence.

[00:14:08] Speaker 01:
You call your own witness.

[00:14:10] Speaker 01:
And so here, what the district court should have done is not to say you can't get this in altogether, but to say, no, you don't have this limited exception available to you anymore.

[00:14:19] Speaker 01:
You must do what everyone has done for decades and decades until this rule was created.

[00:14:24] Speaker 01:
And you must call a live witness subject to cross-examination so that the opponent has a fair opportunity to object to the authentication and to the certificate itself.

[00:14:35] Speaker 03:
three witnesses to do so, albeit late.

[00:14:38] Speaker 01:
Correct.

[00:14:39] Speaker 01:
And the judge had already excused that lateness.

[00:14:42] Speaker 04:
Well, as we consider the last part, what I call prejudice, and maybe it is, maybe it's not, that the party has a fair opportunity to challenge them, is it a fair part of that consideration that the defense was slow to answer the prosecution's request?

[00:14:59] Speaker 04:
Would you please stipulate, or are you going to stipulate,

[00:15:03] Speaker 04:
and a day or two or three or four go by, and then there's a we're not sure but probably not, and it's not until right on the moment that the defense says we're not stipulating.

[00:15:13] Speaker 01:
In other words, is it really that sympathetic of a case?

[00:15:23] Speaker 01:
I don't think that's quite an accurate timeline, but when you say, I the defendant am going to trial, what you're saying is I am contesting every element of the offenses I'm charged with.

[00:15:33] Speaker 01:
It's now the government's job to prove those elements.

[00:15:35] Speaker 01:
The government may want you to stipulate, it may expect you to stipulate, but it still independently must come up with a way to prove every element of the offenses against you beyond a reasonable doubt.

[00:15:47] Speaker 01:
Here, there's some argument between the attorneys about exactly when they said, absolutely positively we're not going to stipulate, but we know that a week before trial, they were like, probably not.

[00:15:57] Speaker 01:
It also takes time when your client is in custody for you to be able to say whether you're stipulating or not.

[00:16:04] Speaker 01:
It is not the attorney's decision whether to essentially stipulate to an entire element of the offense.

[00:16:10] Speaker 01:
He would need his client's permission to do so.

[00:16:12] Speaker 01:
So I don't believe that that is good cause, nor do I believe there's a good cause exception here to begin with.

[00:16:23] Speaker 03:
was stated on the 15th of December, which was within the exact time frame that the court set down in an order, correct?

[00:16:33] Speaker 03:
You met the deadline.

[00:16:36] Speaker 01:
To say no stipulation.

[00:16:37] Speaker 01:
I mean, the defense attorney was not late to say anything back about whether they were stipulating or not.

[00:16:43] Speaker 01:
And it provided plenty of time.

[00:16:46] Speaker 01:
It was significant.

[00:16:47] Speaker 01:
It was at least several days before the final witness list deadline, and certainly before the witness list that was actually submitted by the government.

[00:16:54] Speaker 03:
And the government had time after that to timely amend their witness list rather than doing it after the deadline on the morning of trial.

[00:17:04] Speaker 01:
Correct, Your Honor.

[00:17:05] Speaker 01:
And time that if they had disclosed the certificate of authentication

[00:17:11] Speaker 01:
that day, it still would have been sufficiently before trial, that I think in that case, unless Mr. Wood could have said, we tried, we tried, we tried, we could not reach this person, that that would have been sufficient time.

[00:17:23] Speaker 01:
So the government at that point still had both paths available to it, and it did not pick the right one.

[00:17:31] Speaker 04:
Other questions?

[00:17:32] Speaker 04:
All right, thank you.

[00:17:33] Speaker 04:
All right, thank you.

[00:17:58] Speaker 05:
May it please the Court, Stephen Brydon, on behalf of the United States.

[00:18:03] Speaker 05:
I'd like to essentially just continue the argument from where it's been.

[00:18:07] Speaker 05:
I'll focus on 9-211 as well.

[00:18:10] Speaker 05:
And I think what's most important to consider right from the get-go, something that Judge Phillips has identified already, is that we're dealing with a standard of... Could you pull the microphone down so you're speaking into the microphone?

[00:18:21] Speaker 03:
Thank you.

[00:18:21] Speaker 03:
I apologize, Judge.

[00:18:24] Speaker 05:
Is that we're talking about an abuse of discretion standard.

[00:18:27] Speaker 05:
So we're not talking about necessarily whether everything was done in the optimum way in this case.

[00:18:32] Speaker 03:
The error of law is abuse of discretion, correct?

[00:18:34] Speaker 05:
Correct.

[00:18:35] Speaker 05:
And so I think we need to consider what the judge knew, how clear some of these statements that Mr. Wood has made is that the law around when trial begins, timeliness for these particular notices are clear, that they're established in case law.

[00:18:52] Speaker 03:
Mr. Bryden, we understand

[00:18:57] Speaker 03:
dig into the facts here.

[00:19:02] Speaker 03:
Late by the deadline, but before the trial started, the government listed three witnesses for authentication, correct?

[00:19:11] Speaker 03:
That's correct, your honor.

[00:19:13] Speaker 03:
Why did the government not call one of the witnesses listed, Leslie McCoy?

[00:19:20] Speaker 05:
Are you talking about at the time of trial or like call?

[00:19:24] Speaker 05:
Of course.

[00:19:25] Speaker 05:
That's when we listed her as a trial witness.

[00:19:27] Speaker 05:
We listed her as trial witness prior to the government receiving that certificate on the day of trial, which the government believed sufficed for admission.

[00:19:37] Speaker 05:
So thus, there was no longer a reason to have to call Ms.

[00:19:40] Speaker 05:
McCoy to testify.

[00:19:42] Speaker 05:
What was it that told you you didn't have to call her?

[00:19:46] Speaker 05:
That the court had considered the certificate that the government offered

[00:19:51] Speaker 05:
prior to the jury and panel meeting.

[00:19:54] Speaker 03:
Why didn't you have her available just in case?

[00:19:59] Speaker 03:
If you're trying to case, you've got to plan for the worst possibility to have Ms.

[00:20:04] Speaker 03:
McCoy there in case you did not get the certificate of authentication in.

[00:20:10] Speaker 05:
So the only information in the record about Ms.

[00:20:13] Speaker 05:
McCoy's whereabouts was that the government represented, and it's on volume two, page 13 and 14,

[00:20:18] Speaker 05:
that they would have her available for trial.

[00:20:21] Speaker 05:
That was prior to the discussion of the certificate.

[00:20:24] Speaker 03:
So you represented you'd have her available at trial and you didn't?

[00:20:30] Speaker 05:
I disagree with the idea that we didn't.

[00:20:35] Speaker 05:
Is there anything in the record that indicates she was present?

[00:20:39] Speaker 05:
There's only the government's representation that she would be available for trial.

[00:20:44] Speaker 03:
So there's no evidence that she was physically there

[00:20:47] Speaker 03:
so that she could at least be interviewed by the defense lawyer.

[00:20:51] Speaker 05:
No, Your Honor, but also if defense had made a request to rely on the government's subpoena or request for her to attend the trial, that's something the government may well have done, that that request wasn't made by the defense at that point in time.

[00:21:05] Speaker 03:
No, but whose burden is this to prove the authenticity of the underlying document?

[00:21:11] Speaker 05:
It is the government's burden.

[00:21:12] Speaker 05:
I agree with that 100%, which is why we had

[00:21:14] Speaker 05:
the certificate to offer, the government would not need to provide both the certificate and the testimony of Lesmyn McCoy in order to enter that certificate of Indian status into the record.

[00:21:27] Speaker 05:
And so once the court had agreed that the government could enter the certificate, there was no longer a need for the government to call her.

[00:21:34] Speaker 05:
But there were obviously other things that

[00:21:39] Speaker 05:
The defense could have requested, the government didn't deny any requests to talk to people.

[00:21:43] Speaker 05:
There was no request for a continuance to have some extra time.

[00:21:47] Speaker 05:
And the certificate itself was not discussed until the second day of trial when it was offered into evidence by Special Agent Megan Reese.

[00:21:55] Speaker 03:
And I believe she was the tenth witness that was called.

[00:21:57] Speaker 03:
Considering the underlying document, what is there in the certificate of authentication that indicates

[00:22:09] Speaker 03:
when the document was created?

[00:22:13] Speaker 05:
On the Certificate of Authenticity itself, or on the underlying certificate?

[00:22:18] Speaker 03:
What evidence is there from any source that indicates when the underlying document of Indian blood quantum was created?

[00:22:30] Speaker 05:
So it is dated, I apologize, Shonar, it's dated in the top right.

[00:22:33] Speaker 05:
It says Friday, July 23, 2021.

[00:22:36] Speaker 03:
And that's the date that's after the crime in question.

[00:22:40] Speaker 05:
That's correct, Your Honor.

[00:22:42] Speaker 03:
And yet, so that's the date of its creation.

[00:22:46] Speaker 05:
That is the date that is on this document.

[00:22:50] Speaker 05:
I can't, there was no testimony that it was the date of creation.

[00:22:53] Speaker 03:
Isn't it important to know when the document was created?

[00:22:56] Speaker 03:
I'm sorry Judge, I talked over it.

[00:22:57] Speaker 03:
Isn't it important to know when it was created?

[00:23:01] Speaker 05:
It could be important

[00:23:03] Speaker 05:
However, it's not in the record.

[00:23:04] Speaker 05:
And so I can't.

[00:23:05] Speaker 03:
Well, I understand that.

[00:23:08] Speaker 03:
OK.

[00:23:10] Speaker 03:
Do we know when the enrollment date that's in handwriting was entered onto the certificate of Indian blood?

[00:23:25] Speaker 05:
We don't know that, Your Honor.

[00:23:26] Speaker 05:
All we know is that Leslie McCoy, who authenticates both documents, says that it's a record

[00:23:32] Speaker 05:
maintained in the traditional fashion of the Seneca and Cayuga tribe.

[00:23:36] Speaker 05:
I think one other thing that's important to note is that, just to make sure this is a clear point, Mr. Wood has argued that essentially that date is dispositive on whether or not he is tribal.

[00:23:49] Speaker 05:
That's actually not what 1151 requires or this court's previous cases require.

[00:23:57] Speaker 05:
It requires, the only thing that is affirmative is that they have a degree of Indian blood

[00:24:01] Speaker 05:
And then it's a more amorphous question of their contacts to the tribe, which could be proven up by all the rest of the information included here.

[00:24:09] Speaker 05:
Now, if you have an enrollment date that is prior to the offense, then there's essentially no defense to it.

[00:24:15] Speaker 05:
But that doesn't mean that if you don't have an enrollment date prior to the offense, they can't qualify as an Indian.

[00:24:21] Speaker 05:
You could prosecute somebody who's never enrolled if they have a degree of Indian blood and they have some kind of tribe.

[00:24:29] Speaker 03:
date of birth, the month and day blocked out.

[00:24:35] Speaker 03:
So my copy's blocked out.

[00:24:37] Speaker 05:
So this is how the exhibit went into the record, Your Honor, and we would generally block out information, specific people's personal information.

[00:24:48] Speaker 05:
As the same as we blocked out, for instance, their specific mailing address.

[00:24:51] Speaker 03:
All right, is there anything in the record that indicates how it came about?

[00:24:58] Speaker 03:
that the certificate of authenticity shows up so that there can be some determination that when it showed up, it had attached to it the certificate of Indian blood, and that attachment had been made by Ms.

[00:25:19] Speaker 03:
McCoy.

[00:25:26] Speaker 03:
honor about the 20th of December, 2021.

[00:25:29] Speaker 05:
There's not specific information in the record that would answer all of those questions.

[00:25:36] Speaker 03:
The government brought it in.

[00:25:38] Speaker 03:
And then on the face of the certificate of authenticity, where it has a blank to include the identity of the document that was attached, hopefully by Ms.

[00:25:54] Speaker 03:
McCoy, and hopefully honor about

[00:25:56] Speaker 03:
the 20th of December is blank.

[00:25:58] Speaker 03:
It doesn't say what record it was.

[00:26:02] Speaker 05:
Your Honor, I think in cases where there were a significant amount of records where we need to make sure that everything this person is discussing is included under the auspices of the certificate of authenticity, it's important to list everything out in that section.

[00:26:17] Speaker 05:
However, here there's been a representation by the government that Leslie McCoy

[00:26:21] Speaker 05:
the same person who signed both and she represents herself that she's seen this document and she's offering it to the court and the government made ultimately that representation that she has reviewed this document.

[00:26:34] Speaker 03:
That's what it's in relation to.

[00:26:36] Speaker 03:
Even though this document is never defined, do we know what this document is if it's not listed?

[00:26:46] Speaker 05:
It's correct that it's not listed.

[00:26:49] Speaker 05:
I'm not arguing that it's listed there.

[00:26:51] Speaker 05:
I think the context of how both of these documents came to the court make that answer clear, but it is not written.

[00:27:03] Speaker 04:
Let me ask you, on the certificate of Indian blood and the Friday, July 23, 2021 date, which I don't know if you've explained that or know the answer, when was this document produced to the defendant?

[00:27:18] Speaker 05:
It was produced in the first discovery, so when we provided our original case documents.

[00:27:22] Speaker 04:
That doesn't help me.

[00:27:24] Speaker 04:
When was it produced?

[00:27:26] Speaker 05:
Your Honor, the only statement in the record, I believe, is that it had been in their possession for months, but it's not spelled out clearly.

[00:27:34] Speaker 04:
This is not helping, because what I'm curious is whether or not it was produced before or after July 23rd, which is a pretty basic and important question.

[00:27:48] Speaker 05:
It is, Your Honor, and there's nothing clear in the record that I can give you that answers that question.

[00:27:55] Speaker 03:
Well, wait a minute.

[00:27:58] Speaker 03:
The crime was committed before July 23rd.

[00:28:04] Speaker 03:
That's correct, Your Honor.

[00:28:04] Speaker 03:
But it was how much time between the time the crime was committed where he was indicted?

[00:28:14] Speaker 05:
Your Honor, I don't have... Do we have the date of the indictment?

[00:28:18] Speaker 05:
I don't have it in front of me, Your Honor.

[00:28:21] Speaker 05:
I apologize.

[00:28:22] Speaker 03:
Well, can we assume that the certificate of Indian blood was not provided until after the indictment?

[00:28:34] Speaker 05:
I don't think we can assume that, Your Honor.

[00:28:36] Speaker 05:
That is not a generalized practice.

[00:28:39] Speaker 05:
You mean you usually produce documents to a defendant before they're indicted?

[00:28:43] Speaker 05:
I apologize, Your Honor.

[00:28:44] Speaker 05:
I thought you were asking whether or not it was the tribe would have produced it to the government prior to indictment.

[00:28:49] Speaker 05:
If you're asking whether we were produced it to defense counsel, the answer to that would be no.

[00:28:52] Speaker 03:
That's what Judge Phillips is asking about, producing to the defendant.

[00:28:57] Speaker 03:
I understand.

[00:28:57] Speaker 03:
So we would not have produced it to the defendant prior to the indictment.

[00:29:00] Speaker 03:
And there would be some amount of time after the date of indictment before you would produce it to the defendant, correct?

[00:29:07] Speaker 05:
That's correct.

[00:29:08] Speaker 05:
The district court asked us to do that very quickly in our district, but I can't say a specific number of days.

[00:29:14] Speaker 04:
Just for everyone's information, indictments November 1st, 2021.

[00:29:18] Speaker 04:
Now when it was produced to defend it, which is an important fact, we don't know apparently.

[00:29:27] Speaker 05:
We do not know based on what's in the record.

[00:29:30] Speaker 04:
Do you see the significance of that?

[00:29:32] Speaker 04:
If it were produced on that day, then it would look like this was generated in response to the producing the documents.

[00:29:41] Speaker 04:
And if it wasn't, maybe this is the day that this was even done.

[00:29:46] Speaker 04:
Two largely different and important things.

[00:29:49] Speaker 05:
It could be, Your Honor, but I don't think that just because a document was generated or a copy of it is printed after an indictment necessarily assumes that it's produced for the purposes of a prosecution.

[00:30:04] Speaker 05:
These are normal tribal documents.

[00:30:06] Speaker 05:
There are lots of reasons why a person would need to get a certificate of their Indian blood for application for services and things like that.

[00:30:13] Speaker 05:
So these are documents that are only created for the purposes of government prosecution.

[00:30:18] Speaker 03:
No, but the requirement for admissibility is that it's made near the time of occurrence.

[00:30:27] Speaker 03:
We have no idea, right?

[00:30:32] Speaker 03:
I have no idea when the document was created.

[00:30:35] Speaker 02:
It does say at or near the time of the occurrence of the matter set forth.

[00:30:41] Speaker 03:
So presumably you have to refer to the enrollment date.

[00:30:44] Speaker 03:
That's my question.

[00:30:45] Speaker 05:
Well, and also in the certificate of authenticity itself, we have the keeper of the records, the enrollment officer for the tribe who's certifying this under oath.

[00:30:55] Speaker 05:
or under the penalties of perjury.

[00:30:57] Speaker 05:
I think that's important when you're looking at the case law on these issues about how deeply courts need to go when they're considering these certificates.

[00:31:06] Speaker 05:
It's represented in Mr. Wood's brief that there's kind of a change and that courts are looking beyond those statements in the affidavit that comes from the McCormick on evidence treatise.

[00:31:17] Speaker 05:
But right before the sentence that's cited in Mr. Wood's brief, it says, most reported cases have referred to the certification

[00:31:24] Speaker 05:
as being only a verbatim recitation of the required terms of the business records exception.

[00:31:29] Speaker 05:
So once the court is presented with a certificate of authenticity that states what is necessary under 803, if it's signed and if it's stated, the court can accept those representations as true.

[00:31:44] Speaker 03:
But the purpose of the certificate of authenticity is to

[00:31:54] Speaker 03:
establish that the underlying document is what it purports to be.

[00:32:01] Speaker 03:
And if you can't say when it was made, you can't say whether it was made at or near the time of occurrence.

[00:32:16] Speaker 03:
It could have been July 23rd, 2021.

[00:32:19] Speaker 03:
Yes, sir.

[00:32:23] Speaker 03:
Could have been some other date, right?

[00:32:25] Speaker 03:
Some other date earlier, but we don't know.

[00:32:28] Speaker 03:
The only important thing is the enrollment date, which is handwritten in.

[00:32:42] Speaker 03:
Doesn't all that indicate that it is difficult to tell from the certificate of authenticity that the certificate of Indian blood

[00:32:52] Speaker 03:
is what it purports to be.

[00:32:57] Speaker 03:
And is admissible, under the exception to the hearsay rule.

[00:33:03] Speaker 05:
I see that I'm out of time, Your Honor.

[00:33:04] Speaker 05:
Is it appropriate for me to answer the question?

[00:33:06] Speaker 05:
Thank you.

[00:33:08] Speaker 05:
In this case, that is the information that we're getting from the certificate of authenticity.

[00:33:14] Speaker 05:
Somebody is signing that, and the purpose of this document

[00:33:18] Speaker 05:
again, is to make these representations to the court from somebody who knows.

[00:33:22] Speaker 05:
And then the question becomes, is it an abuse of discretion for the court to consider what he sees in the certificate of authenticity, along with the information coming from both the government and the defense about the certificate of authenticity, to have admitted it?

[00:33:38] Speaker 03:
So the district court says, well, I look at these two certificates.

[00:33:45] Speaker 03:
They're signed by the same person.

[00:33:47] Speaker 03:
It's admitted.

[00:33:48] Speaker 03:
It will be received.

[00:33:52] Speaker 03:
Is that all we need under this rule?

[00:33:55] Speaker 05:
Your Honor, I think if there was no opportunity for the attorneys to speak and be heard so that we can understand that the district judge is hearing all of these arguments... Well, you tell the defendant that they need to ask questions and everything.

[00:34:08] Speaker 03:
Isn't the obligation of the counsel for the government to ask the court what it means?

[00:34:16] Speaker 05:
Your Honor, I don't think that the court was particularly ambiguous in what it meant.

[00:34:20] Speaker 05:
I think it heard the arguments of both parties.

[00:34:22] Speaker 03:
All right, then what more do you need?

[00:34:24] Speaker 03:
Then it was established that this document was admitted because both the cover document and the underlying certificate of Indian blood were signed by the same person.

[00:34:38] Speaker 03:
That's the basis of it being admitted by the district.

[00:34:43] Speaker 05:
because the district court heard the arguments about why he believed that the certificate was not authentic.

[00:34:50] Speaker 05:
And the judge said, I am looking at this document where this woman is certifying that these things that you have a problem with are not the case, that they are correct.

[00:35:00] Speaker 05:
And so I'm going to credit her as a person who has clear knowledge of the original document, because she signed off on it, and the certificate of itself that she signed off on.

[00:35:09] Speaker 03:
In case the judge is reciting all this, saying all this,

[00:35:12] Speaker 05:
He is making his... I am paraphrasing a little bit.

[00:35:18] Speaker 05:
I'm not speaking exactly from the record.

[00:35:21] Speaker 03:
We have a transcript in the record, correct?

[00:35:22] Speaker 03:
We do have a transcript in the record.

[00:35:24] Speaker 03:
Does it indicate this long explanation or does it basically just say the certificate of authenticity and the certificate of Indian blood are signed by the same person?

[00:35:34] Speaker 03:
It will be received.

[00:35:36] Speaker 05:
Your Honor, you have to consider what's happening for the whole hearing, where he is, when the defense is making... No, I'm asking what the judge said.

[00:35:42] Speaker 03:
I understand that argument would make, but what did the judge say?

[00:35:47] Speaker 05:
I'm sorry, I was being unclear what I was saying.

[00:35:49] Speaker 05:
He's engaging in the moment, the judges, with these questions.

[00:35:52] Speaker 05:
So it's not just what he says at the end of the hearing, where he says ultimately, you know, they're signed by the same people... Okay, I understand that.

[00:35:59] Speaker 03:
Just tell me, if at the hearing,

[00:36:03] Speaker 03:
He said, in substance effect and not much more, the two documents are signed by the same person and it will be received.

[00:36:12] Speaker 03:
Just give me a yes or no.

[00:36:15] Speaker 03:
That's all I'm asking for.

[00:36:16] Speaker 05:
Your Honor, I think that's what he said, but I don't think it's fair to not include his prior statements on the record in figuring out what he thought.

[00:36:23] Speaker 04:
I understand your position.

[00:36:26] Speaker 04:
What was your case authority for saying that tribal membership doesn't matter, only blood?

[00:36:32] Speaker 05:
That's discussed in Prentice.

[00:36:36] Speaker 05:
You can see discussions of it in the Ortner case, which I know is unreported, but it's cited.

[00:36:39] Speaker 05:
It says that?

[00:36:43] Speaker 04:
If I read that case, it will say that?

[00:36:45] Speaker 05:
Yeah.

[00:36:46] Speaker 05:
The dynamics of proving Indian status is relatively clear from the court's prior case law, which is it's a two-pronged system.

[00:36:55] Speaker 05:
One is, do they have a degree of Indian blood?

[00:36:58] Speaker 05:
And then the second prong is have they been recognized by the tribe in some way.

[00:37:02] Speaker 05:
And that can be proven two different ways.

[00:37:03] Speaker 05:
First from if they are actually registered with the tribe and they've been registered the whole time, that's going to be very difficult evidence to refute.

[00:37:11] Speaker 05:
But you don't have to have that.

[00:37:13] Speaker 05:
You can have some other evidence of tribal connection.

[00:37:16] Speaker 05:
But we don't have any.

[00:37:20] Speaker 05:
My point was that the document itself does not need to require that blood quantum in order to prove that they're Indian.

[00:37:27] Speaker 04:
It doesn't if you have other proof is what I'm hearing you say, but then I'm also hearing you say, but we don't have any other proof, which makes me wonder why are you raising this?

[00:37:36] Speaker 05:
It's part of an argument that they would make off of this proof alone.

[00:37:39] Speaker 05:
You could argue that the fact that he has the blood quantum and that he has connections with the tribe sufficient to become enrolled is enough to prove they're an Indian person.

[00:37:48] Speaker 04:
Okay.

[00:37:49] Speaker 04:
Well, thank you, counsel.

[00:37:50] Speaker 05:
Thank you, Your Honors.

[00:37:51] Speaker 04:
You are out of time, but we've gone over here, so let's be fair.

[00:37:55] Speaker 04:
We'll give you four minutes and any additional needed requesting.

[00:38:16] Speaker 01:
Thank you, Your Honors.

[00:38:17] Speaker 01:
In terms of the timeline of what happened, the offense date here is charged that it's March 2021.

[00:38:25] Speaker 01:
Mr. Wood's first in state custody.

[00:38:27] Speaker 01:
The state has no element that it would need to worry about, about whether he's a travel member or not.

[00:38:33] Speaker 01:
Then this document is dated July 2021, and then Mr. Wood is federally indicted in November 2021, and it's introduced against him in December 2021.

[00:38:43] Speaker 01:
Looking again at the enrollment date that's written,

[00:38:47] Speaker 01:
When is it written?

[00:38:48] Speaker 01:
It has questions, I think, that are obviously unanswered here.

[00:38:53] Speaker 01:
But the import date, it's not like you would just strike the enrollment date off that certificate of Indian blood quantum.

[00:39:00] Speaker 01:
If there is a problem, and this is not a business record anymore, even if the underlying typewritten part was once a business record, the solution isn't to wipe that out.

[00:39:09] Speaker 01:
The whole document would be inadmissible.

[00:39:12] Speaker 01:
And again, as this court was saying, you can prove Indian status without official tribal membership, but you have to prove recognition by a tribe or the federal government.

[00:39:21] Speaker 01:
And there's no other evidence in this case of recognition by a tribe or the federal government.

[00:39:26] Speaker 01:
The government has repeatedly said in both its brief and an oral argument that there's an abuse of discretion standard here.

[00:39:32] Speaker 01:
That's clearly true.

[00:39:34] Speaker 01:
But what the government has never said is what Rule 902.11 means.

[00:39:39] Speaker 01:
whether it complied with rule 902.11 and how.

[00:39:43] Speaker 01:
And if it did not comply with rule 902.11, why this court should read exceptions into that rule, what exceptions it should read, and which exception they would capture this case.

[00:39:55] Speaker 01:
And that's because there is simply no case law from any circuit that would support what happened in this case.

[00:40:02] Speaker 01:
There's no interpretation of rule 902.11.

[00:40:04] Speaker 04:
Let me take you on a little detour around the

[00:40:09] Speaker 04:
smoking pile-up of Rule 902 and that that is to maybe another smoking pile-up of United States versus Walker.

[00:40:19] Speaker 01:
Sir, it says what?

[00:40:20] Speaker 04:
Walker, 2023 case cited in the briefs and there our court said that the testimony of a witness that you sir don't have Indian blood, you're not a member of the tribe, was good enough without a record.

[00:40:37] Speaker 04:
that 602 personal knowledge was sufficient.

[00:40:41] Speaker 04:
Here we have MM testifying that in fact the defendant is an Indian.

[00:40:47] Speaker 04:
No objection, no anything else.

[00:40:50] Speaker 04:
Why is that testimony alone not enough putting all of the 902 step aside?

[00:40:57] Speaker 01:
I think there's two questions there.

[00:40:58] Speaker 01:
One is, what was her testimony?

[00:41:01] Speaker 01:
And two, what's the harmless error analysis?

[00:41:03] Speaker 04:
Well, she testified he's an Indian.

[00:41:05] Speaker 01:
She said that he is Seneca, Cuyuga, and Quapaw.

[00:41:08] Speaker 01:
But the question here is not one of identity.

[00:41:10] Speaker 01:
It's of citizenship.

[00:41:12] Speaker 01:
It doesn't matter what he thinks he is.

[00:41:14] Speaker 01:
It doesn't matter what she thinks he is.

[00:41:15] Speaker 01:
What matters is if he has blood, that he has ancestry that was in America before Columbus.

[00:41:22] Speaker 01:
And what matters is whether he's recognized as an Indian by a tribe or the federal government.

[00:41:27] Speaker 01:
She doesn't testify about that.

[00:41:29] Speaker 01:
In USB Ortner, not published, this court said that a childhood friend of Mr. Ortner's who did testify he has Indian blood was no evidence that he actually had Indian blood.

[00:41:43] Speaker 04:
Let me read you the testimony and maybe it's not all that I was making it up to be.

[00:41:46] Speaker 04:
Sure.

[00:41:47] Speaker 04:
You can decide.

[00:41:48] Speaker 04:
M.M., do you know if Mr. Wood is Native American?

[00:41:51] Speaker 04:
Yes.

[00:41:51] Speaker 04:
Do you know what tribe?

[00:41:52] Speaker 04:
And then she gives that tribe, and on they go, on past that.

[00:41:58] Speaker 04:
Now, I understand your point about Pre-Columbus and so forth, but why isn't Wood still instructive on that point?

[00:42:07] Speaker 04:
Because it's the opposite.

[00:42:09] Speaker 04:
I'll grant you, it's not this person's an Indian.

[00:42:11] Speaker 04:
Instead, it's this person isn't an Indian.

[00:42:13] Speaker 04:
But both of those questions involve blood.

[00:42:17] Speaker 01:
And Your Honor, here the question was whether he's Native American.

[00:42:20] Speaker 01:
It wasn't a technical question to someone with technical knowledge of what federal Indian law is and what it requires.

[00:42:27] Speaker 04:
Neither was Walker.

[00:42:29] Speaker 01:
And even if we say this is some evidence and it would have been sufficient to sustain the conviction, that's not the question on harmlessness.

[00:42:37] Speaker 01:
The question on harmless error here is whether the jury would have been substantially influenced by this very official-looking tribal document that gave a specific blood quantum, a specific enrollment date, and was a specific tribe signed by that tribe.

[00:42:53] Speaker 01:
The question here is much more like the Ninth Circuit case that I cite, where there they thought that their tribal record could simply be self-authenticating if it was sealed, it wasn't.

[00:43:03] Speaker 01:
And in that case, you had testimony from an FBI agent saying that the defendant lived on the Hualapai Reservation, and a testimony from the alleged victim in that case saying that he was a member of the Hualapai Reservation.

[00:43:15] Speaker 01:
And the Ninth Circuit said, but when you've got this powerful other evidence, we can't say that's harmless,

[00:43:22] Speaker 01:
When, even with this other evidence on the record, here we have even less than that.

[00:43:26] Speaker 01:
Less specific, less official, and this court, the government has not sustained its burden to prove the department's error.

[00:43:35] Speaker 04:
M.M.

[00:43:35] Speaker 04:
had lived with them for years.

[00:43:38] Speaker 04:
She wasn't a stranger making a guess.

[00:43:41] Speaker 04:
Do we factor that?

[00:43:43] Speaker 01:
And again, no, Your Honor, because

[00:43:45] Speaker 01:
I cite some census statistics, because it's kind of hard to give evidence putting this into point, but when the census said, hey, you can identify now as Native American without having any official documentation, the Native American population doubled.

[00:44:02] Speaker 01:
Because there, when it's the census, it's about identity.

[00:44:05] Speaker 01:
But when it comes to federal Indian law and the jurisdictional element, it's not about identity.

[00:44:09] Speaker 01:
It is something different.

[00:44:10] Speaker 01:
It is a technical definition of Indian.

[00:44:13] Speaker 01:
that his girlfriend wasn't asked about and maybe likely wouldn't have known.

[00:44:18] Speaker 01:
But in any event, her testimony was not so specific and so powerful that you can see that this very official-looking document that did go to all of the different requirements of Indian status under federal law, that its admission was harmless.

[00:44:31] Speaker 04:
Nor did Walker, either, though.

[00:44:33] Speaker 04:
That's my problem.

[00:44:35] Speaker 04:
If there were no Walker, I would be persuaded by your argument.

[00:44:38] Speaker 04:
But Walker says what Walker says.

[00:44:40] Speaker 01:
And again, this is not a sufficiency of the evidence case.

[00:44:43] Speaker 01:
We're not asking whether this could have persuaded a jury.

[00:44:48] Speaker 01:
But for the erroneously-admitted evidence, was there sufficient evidence in the record for a conviction to be sustained?

[00:44:55] Speaker 01:
That's not the question for this court.

[00:44:57] Speaker 01:
The question is about not that hypothetical, but the trial that did happen and the evidence that was introduced and whether that evidence that was erroneously introduced had a substantial impact on the jury's verdict.

[00:45:09] Speaker 02:
Questions?

[00:45:09] Speaker ?:
Anyone?

[00:45:11] Speaker 04:
All right.

[00:45:11] Speaker 04:
Thank you for your argument, counsel.

[00:45:14] Speaker 04:
Appreciate it.

[00:45:15] Speaker 04:
And the cases submitted, counsel, are excused.