[00:00:00] Speaker 04:
is United States versus Workman, number 237081.

[00:00:05] Speaker 04:
Mr. Derryberry, you may proceed.

[00:00:10] Speaker 01:
Good morning to the court.

[00:00:11] Speaker 01:
I am Barry Derryberry.

[00:00:12] Speaker 01:
I represent Brandon Workman, who is the appellant in this matter.

[00:00:17] Speaker 01:
The initial business I want to raise is the standard of review, which is the ground on which every decision of this court

[00:00:29] Speaker 01:
stands on.

[00:00:30] Speaker 01:
The brief that I have submitted emphasizes, although it cites the standard applicable to legal errors and factual errors, it emphasizes the de novo standard that applies to legal errors.

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The government's brief

[00:00:49] Speaker 01:
also cites both standards but emphasizes the clearly erroneous standard for factual errors.

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I do stand by my depiction of the burden of proof because this is a legal issue in which we allege that the district court

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did not conduct the findings and analysis that's required by the unpublished PDEA versus United States versus PDEA decision from this court by Judge Holmes five years ago.

[00:01:22] Speaker 04:
Could we kind of break down the issues and match up the standard of review since you brought that up?

[00:01:30] Speaker 04:
So one of the issues I think you're raising is who has the burden, correct, on this hearsay?

[00:01:38] Speaker 01:
That is embedded in my overall argument that the court seemed to evidently look to the defendant to establish unreliability.

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And so is the question of who has the burden, is that a legal issue?

[00:01:57] Speaker 01:
The primary legal issues are the standards in PDEA, which are

[00:02:04] Speaker 01:
are bringing published 10 circuit cases to us as well?

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The issue of is this unpublished case controversial?

[00:02:13] Speaker 01:
There was that question here a little while ago.

[00:02:17] Speaker 04:
So I wanted to start you off with what I thought was the easier question.

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So let me get to the harder one.

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And that is the issue of whether the hearsay evidence was sufficiently reliable.

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Is that a legal issue or a factual issue?

[00:02:36] Speaker 01:
It's not the primary issue.

[00:02:40] Speaker 01:
OK.

[00:02:40] Speaker 01:
The primary issue is that is it an issue?

[00:02:44] Speaker 04:
Yes.

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We can get that one out of the way.

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Is it legal or factual?

[00:02:48] Speaker 01:
It goes to the prejudice or harm from the legal error.

[00:02:58] Speaker 01:
I would like to roll out my legal errors.

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I assume you'll get an answer on that one.

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And these weave in is why I don't mean a hedge, but these sort of weave in together.

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So that the court doesn't say, well, there's no there there.

[00:03:14] Speaker 01:
You're arguing about reliability, but there's not really a reason to question the reliability.

[00:03:19] Speaker 01:
And so I have pointed out things to show why it mattered in this case.

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And so Padilla is telling the courts that they may not assume that police reports are reliable when the court is conducting its Rule 32 fact-finding obligation that's triggered by an adequate objection to facts in a PSR.

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And so this reliability floor that Padilla

[00:03:51] Speaker 01:
is pointing to that is meant to satisfy guideline 6A1.3, which is there must be reliability, there must be adequate indicia of reliability for court to conclude that the information at stake or in dispute is probably accurate, has probable accuracy.

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And so that's the reliability floor.

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And Padilla says, courts cannot resolve a disputed sentencing fact simply by assuming that information in a police report meets the reliability floor.

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And so that's what I'm saying occurred here, that the district court in the four instances that my brief cites where the court says, nothing's been presented to me to cause me to question the reliability of these reports.

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that appears to be the court assuming that they are reliable.

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And so the switching of the burden of proof is an indication that the court did not proceed as Padilla requires.

[00:05:01] Speaker 02:
So I'm going to first note that you weren't the person making this argument to the district court.

[00:05:07] Speaker 02:
No, Your Honor.

[00:05:08] Speaker 02:
OK.

[00:05:09] Speaker 02:
So I'll just note that.

[00:05:13] Speaker 02:
The problem I have with your argument is I think it ignores the way these types of things unfold at the district court.

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Because the government gets up and they're going to make their case based on hearsay, basically, which is fine if there's sufficient indicia of reliability.

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your client's trial counsel says, oh, I object.

[00:05:44] Speaker 02:
It's hearsay.

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And then we get into this big, long discussion about it being hearsay, and you shouldn't just rely on hearsay, and the government just wants to rely on hearsay.

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And the court basically gives trial counsel the chance to say there is a dispute over reliability.

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Because one thing that happens in a trial court is

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The court weeds out the non-disputed items.

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And he basically says, listen, I'm not hearing any suggestion that this information is not reliable.

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And trial counsel doesn't say, hey, wait a minute, Judge.

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That's exactly what I'm saying.

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It's not reliable, and they haven't shown it is.

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And we just get into this amorphous stuff.

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And to me,

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your argument just sort of ignored by saying, well, it's the government's burden.

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The district court didn't make appropriate findings.

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I mean, it was not really an issue.

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What do you say to that?

[00:06:51] Speaker 01:
Well, I say that the defense counsel was saying to the court, there are substantial reasons to question the reliability of the police reports and is

[00:07:05] Speaker 01:
holding up a letter that was received from Rachel Potts, the victim in this matter, where she says in the letter, which is read into the transcript that we have and is in the exhibits in the supplemental record, where she says, among other things, that police were trying to get her to lie about what happened.

[00:07:30] Speaker 01:
There is the government's reliance on her original statements to officers at the scene purportedly contained in police reports.

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She's a methamphetamine user slash addict also, so there's those credibility issues.

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Our attorney was highlighting the hearsay within hearsay nature of this.

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So this is one reason that I put the Fennel F-E-N-N-E-L-L case in the brief, which is where the trial court relied on testimony from a probation officer who said, I interviewed a witness over the telephone, and here's what the witness said.

[00:08:13] Speaker 01:
And reliability was at stake.

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And this court said in the Fennel decision that that was inadequate upon which

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the court could base a determination of reliability because the witness is this remote person that the court does not have a means in that situation to be able to assess the credibility of.

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And so the credibility of Rachel Potts here, who is kind of laundered through a police report, and police officers are

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quite unlike probation officers who might be trained to be reliable sources of credibility or believability, police reports are just containing the sort of fodder for prosecution that Padilla is telling us.

[00:09:02] Speaker 02:
That would suggest then that police reports would never be sufficient.

[00:09:08] Speaker 01:
Now Padilla clearly points out that's not the case.

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It's just that they can't be presumed to be

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And based on PDEA, I'd never come in and say that they are unreliable because of those factors in PDEA.

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It's just that they can't be presumed to be reliable.

[00:09:26] Speaker 01:
There has to be more to establish reliability, which really gets us to five minutes to go.

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I think it's a segue into the second way in which PDEA is failed in this case, where

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it says that the court has to conduct an examination of the record.

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And I'm reading to the court.

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I know I shouldn't.

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As a whole, to discern whether there is additional evidence to corroborate sufficiently the relevant information that the report is being offered to establish.

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And in Padilla, the district court said, the police report is sufficiently reliable to establish a sentencing fact that was inadequate.

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And we have those

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utterances by this court in this record, but that's not enough.

[00:10:19] Speaker 01:
PDEA talks about an examination of the entire record that has to occur.

[00:10:24] Speaker 01:
And one place in our record that really shows this occurring is on page 41 of the sentencing transcript in volume three.

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The court says, and this is just three sentences, as all this amounts to, court says, I just received these witnesses' statements, so identify for me where that information is contained in the exhibits.

[00:10:54] Speaker 01:
He's pointed to exhibit four, the court says.

[00:10:57] Speaker 01:
It is in exhibit four, and I understand and appreciate defense counsel's objection, but those statements are supported by the witness statements produced and prepared from the sheriff's department.

[00:11:11] Speaker 01:
The court didn't even have time to read that, because he's saying, can you point out to me where in this document I just got that these are in there?

[00:11:20] Speaker 01:
And that is not the totality examination of all of the records that is demanded by what Padilla is articulating.

[00:11:35] Speaker 04:
Counsel, could I ask you about something

[00:11:40] Speaker 04:
is contained in the government's brief, page 17, it says on the assault question, the ultimate corroboration came from the defendant himself.

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He admitted, albeit likely unintentionally, he assaulted Miss Potts when he revealed he slapped her.

[00:12:03] Speaker 04:
If that's so, why wouldn't that be dispositive for the enhancement?

[00:12:10] Speaker 01:
Because the requirement of 2K2.1B6 is use or possession of the firearm in furtherance of the other felony.

[00:12:23] Speaker 01:
And so that, as you just described, does not point to the firearm or involve the firearm.

[00:12:32] Speaker 01:
That doesn't say slap you with the firearm.

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And so the government does make a few points that sort of

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dance around the outer limits of the issue, because the issue here is involvement of the firearm.

[00:12:49] Speaker 01:
And we can be looking at where she said he hit her with a firearm.

[00:12:53] Speaker 01:
We could be looking at where she said he pointed at her and discharged it.

[00:12:59] Speaker 01:
There is no corroboration outside of Rachel Potts' statement.

[00:13:04] Speaker 01:
Only she was a witness to those events if they occurred or didn't occur.

[00:13:09] Speaker 01:
So his admission doesn't.

[00:13:14] Speaker 04:
Does the enhancement apply if the assault occurs while possessing a firearm as opposed to using the firearm?

[00:13:24] Speaker 01:
It has to be.

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It can be possession, but it has to be in furtherance.

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of another felony.

[00:13:32] Speaker 01:
So there has to be involvement in the other felony, not circumstantial.

[00:13:37] Speaker 01:
I want to say contemporaneous possession is not adequate for that.

[00:13:42] Speaker 04:
I don't see furtherance in the guideline.

[00:13:45] Speaker 04:
It just says, used or possessed any firearm or ammunition in connection with.

[00:13:54] Speaker 01:
Yeah, and I acknowledge that.

[00:14:01] Speaker 01:
But the requisite nexus in a lot of cases from this court requires that there has to be, it's not just simultaneous possession of a gun.

[00:14:13] Speaker 01:
It has to have a role in conducting the other offense, like burglaries.

[00:14:20] Speaker 01:
And then somebody goes in and finds a gun and steals it.

[00:14:23] Speaker 01:
And that's part of the burglary then.

[00:14:25] Speaker 01:
So those are the typical cases that we see.

[00:14:31] Speaker 01:
Can I reserve my remainder?

[00:14:32] Speaker 00:
You may.

[00:14:36] Speaker 00:
May it please the court.

[00:14:37] Speaker 00:
I'm Luke Rizzo, an AUSA from the Eastern District of Oklahoma.

[00:14:41] Speaker 00:
The court should affirm the district court's application of the challenged sentencing enhancement, the reasons being that the lower court stated on the record the correct legal standards that was applied for both its legal decisions and the factual findings, and it applied them appropriately.

[00:14:57] Speaker 03:
Is it problematic that the court

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said that I haven't heard anything that casts question on the reliability of Rachel Potts' statement.

[00:15:06] Speaker 03:
Doesn't that suggest that the judge unwittingly or wittingly flipped the burden?

[00:15:14] Speaker 00:
Well, Your Honor, I think at first glance and potentially maybe out of context, that certainly does seem problematic.

[00:15:21] Speaker 00:
But within the transcript, what he's trying to do is he's explaining to both parties who are essentially getting into the argument

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They're trying to submit hearsay.

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And then the Rachel Potts letter, the victim's letter that defense counsel is trying to submit is also hearsay.

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And he's basically explaining to both sides like, well, I haven't heard any reason this isn't reliable.

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But if you look, the entire record makes it clear.

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And the district court, it puts this on the record that it does understand there needs to be indications of reliability for it to consider the sentencing enhancements.

[00:16:00] Speaker 03:
Let me just kind of test that a little bit.

[00:16:05] Speaker 03:
Isn't that a fair inference that the judge essentially is saying, I'm going to blame King Solomon.

[00:16:13] Speaker 03:
The defendant wants Rachel Potts' letter.

[00:16:15] Speaker 03:
You want the out-of-court statement from Rachel Potts.

[00:16:18] Speaker 03:
You're both arguing about it.

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And you both are arguing that the other side's presentation constitutes hearsay.

[00:16:29] Speaker 03:
You know, there's three, you know, it's a binary inquiry.

[00:16:33] Speaker 03:
Is your evidence sufficiently, does it bear sufficient indicia of reliability?

[00:16:39] Speaker 03:
And does Rachel Potts' letter to defense counsel bear sufficient indicia of reliability?

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And then the judge says, well, all of it comes in or none of it comes in.

[00:16:49] Speaker 03:
I'm not sure that that is logically or legally correct, but that's really not the argument here.

[00:16:56] Speaker 03:
But then when the judge, in the context that you just explained 100% accurately, and then the judge says, but I haven't heard anything to cast question on the reliability of what Rachel Potts said.

[00:17:08] Speaker 03:
And so it seems a solomonic decision, but I'm not sure that that is faithful to the government's burden on the government's part of that out-of-court statement

[00:17:24] Speaker 03:
to recognize that there has to be a finding of sufficient indice of reliability?

[00:17:29] Speaker 00:
Well, I think the government's position is that the lower court certainly was explaining things to both parties on the record at this hearing.

[00:17:37] Speaker 00:
What the government did at the hearing was attempt to meet its burden and the government's position as it did.

[00:17:43] Speaker 00:
That's why not only is the probation officer called,

[00:17:46] Speaker 00:
but the multiple documents and the pictures and everything that's admitted into evidence is effectively the government trying to meet that burden.

[00:17:55] Speaker 00:
And it's important to know, yeah, Rachel Potts, the victim, her hearsay statement is obviously important.

[00:18:02] Speaker 00:
It's the crux of those two paragraphs that are challenged at the hearing, those factual paragraphs.

[00:18:11] Speaker 00:
It's also noted there's other hearsay statements from witnesses on the scene, the ones who heard a gunshot, the ones who saw them walking away.

[00:18:18] Speaker 00:
The court effectively finds that this hearsay bundle of evidence that we have, there's indications of reliability, effectively by the totality.

[00:18:33] Speaker 00:
Now, Rachel Potts, she comes in, she presents to defense counsel a letter taking it back, or rather,

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maybe not fully endorsing the facts that the police have in their report.

[00:18:46] Speaker 00:
But it should be noted, I suppose, in the court's defense, there's some equivocation at the scene of the arrest as well from her.

[00:18:55] Speaker 00:
She doesn't want to press charges.

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And I think there's an issue of a protective order.

[00:19:00] Speaker 00:
She doesn't want to get him in trouble.

[00:19:02] Speaker 00:
And I suppose her letter after the fact or later at the hearing, at the end of the day, the court does admit

[00:19:09] Speaker 00:
does consider it all, to the judge's point.

[00:19:12] Speaker 00:
I mean, I think, again, the government can only work on its burden.

[00:19:17] Speaker 00:
And it's essentially that, in this matter, there's multiple aspects of support here.

[00:19:26] Speaker 00:
The assault of the victim, the defendant's domestic partner, she gave those statements to police.

[00:19:34] Speaker 00:
And she's saying that it hit me, and her injuries aren't hearsay.

[00:19:39] Speaker 00:
But they corroborate the hearsay.

[00:19:40] Speaker 00:
Her injuries are literal.

[00:19:43] Speaker 00:
The pictures document that.

[00:19:45] Speaker 00:
The existence of other aspects supported in the police reports, the authors of the reports, they're on the scene.

[00:19:52] Speaker 00:
They're talking to her.

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They're visually seeing her.

[00:19:54] Speaker 00:
While that is hearsay as well, it does corroborate the victim's hearsay statements.

[00:20:02] Speaker 00:
And the use of the firearm during the assault, it's further corroborated.

[00:20:05] Speaker 00:
The fact is, when the victim says,

[00:20:09] Speaker 00:
to the police when they arrive on the scene.

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He's in the trailer with a gun.

[00:20:13] Speaker 00:
That's hearsay, but it's absolutely true.

[00:20:16] Speaker 00:
That's not disputed.

[00:20:17] Speaker 00:
When he's found the defendant, he is convicted of being a felon in possession.

[00:20:21] Speaker 00:
So there's no dispute he possessed a gun.

[00:20:24] Speaker 00:
A revolver.

[00:20:25] Speaker 00:
In that revolver, there's a spent shell casing indicating that a round was fired.

[00:20:30] Speaker 00:
Multiple people said they heard a gunshot.

[00:20:32] Speaker 00:
The challenge facts here are that Rachel Potts said she was assaulted.

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and the defendant had a gun.

[00:20:39] Speaker 00:
He assaulted her effectively with a dangerous weapon.

[00:20:42] Speaker 00:
He pointed the gun towards her head.

[00:20:44] Speaker 00:
He shot it.

[00:20:45] Speaker 00:
He hit her with the gun as well.

[00:20:46] Speaker 00:
That's the underlying felony.

[00:20:48] Speaker 00:
And, you know, the existence of the gun, the spent shell casing, her injuries, that's not hearsay at all.

[00:20:55] Speaker 00:
Those are different forms of evidence, and they do support the hearsay.

[00:20:59] Speaker 00:
And I think that is what the judge relied on when he was saying, you know, there's indications of reliability here.

[00:21:05] Speaker 00:
I would also, just to answer the court's question, I think the slap alone, the reason why that's in the government's brief is to explain the defendant, he's not contesting everything.

[00:21:17] Speaker 00:
He is saying an assault occurred.

[00:21:20] Speaker 00:
Why that?

[00:21:20] Speaker 00:
The issue of whether that, to the court's question of whether that would be enough alone for the enhancement, the question would be whether that's effectively a simple assault in Oklahoma, and it very well could be a misdemeanor.

[00:21:33] Speaker 00:
Now, he does have prior domestics, which could make it a felony.

[00:21:36] Speaker 00:
But there's always a question of, now that he's Indian under federal law, would prior state convictions be a part of this enhancement?

[00:21:45] Speaker 00:
So at the end of the day, the government's position was, we're essentially arguing it's an assault with a dangerous weapon.

[00:21:56] Speaker 00:
With all that said, I think there is the other part where I think

[00:22:03] Speaker 00:
The defendant keeps mentioning this case Padilla.

[00:22:07] Speaker 00:
It's an unpublished case.

[00:22:08] Speaker 00:
It goes into whether police reports are reliable or not.

[00:22:14] Speaker 00:
I think the government's position is simply that, like any other evidence, like any other statement, any other hearsay statement, it should be assessed for the indications of reliability.

[00:22:25] Speaker 00:
That's the standard.

[00:22:26] Speaker 00:
And with that said, I do think this is a pretty simple matter.

[00:22:31] Speaker 00:
I think the court actually does make

[00:22:34] Speaker 00:
It does factual findings.

[00:22:37] Speaker 00:
It lays out its legal argument or the correct legal application.

[00:22:43] Speaker 00:
And if the court has any further questions, I'll be happy to answer them.

[00:22:47] Speaker 00:
But based on the nature of this case and this appeal, I'll cede my time if there's no further questions.

[00:22:55] Speaker 00:
Thank you, counsel.

[00:22:56] Speaker 00:
Thank you, your honor.

[00:23:03] Speaker 01:
The error of law issue that is presented in this case is not answered by analysis of whether the record would support the district court's determination of reliability.

[00:23:20] Speaker 01:
That's a factual issue.

[00:23:22] Speaker 01:
We didn't get to that issue because the court did not conduct the examination.

[00:23:27] Speaker 01:
Instead, the court just made an assumption of reliability.

[00:23:31] Speaker 01:
Padilla, 11 seconds, says, Judge, not so fast.

[00:23:35] Speaker 01:
And so I'll just refer the court to page 25 of the sentencing transcript because I don't have time to take a minute to go through it.

[00:23:44] Speaker 01:
But I think that's an example of going too fast.

[00:23:47] Speaker 01:
Thank you.

[00:23:48] Speaker 04:
Thank you, counsel.

[00:23:51] Speaker 04:
Appreciate your arguments this morning.

[00:23:53] Speaker 04:
The case will be submitted and counsel are excused.