[00:00:00] Speaker 03:
This is 24-7100, United States versus Barker.

[00:00:05] Speaker 03:
Mr. Pinkish, you may enter in appearance and proceed.

[00:00:09] Speaker 05:
Thank you, Your Honor.

[00:00:11] Speaker 05:
May it please the Court, my name is Howard Pinkish from the Federal Public Defender, and I represent Coker Barker.

[00:00:18] Speaker 05:
The Confrontation Clause prevented the introduction of William Lozier's prior testimony at Mr. Barker's murder trial, unless the prosecution proved Mr. Lozier was unavailable.

[00:00:30] Speaker 05:
But the prosecution did not show was unable to locate Mr. Lozier despite reasonable efforts.

[00:00:35] Speaker 05:
What it offered about contact with his family was too vague to show its efforts to locate him that way were reasonable.

[00:00:43] Speaker 05:
And in two other regards, its efforts were minimal and on their face were not reasonable.

[00:00:48] Speaker 05:
The district court therefore violated the Sixth Amendment by admitting Mr. Lozier's prior testimony and this court should vacate his convictions.

[00:00:56] Speaker 05:
William Lozier's testimony played an important role in the prosecution's case here.

[00:01:01] Speaker 05:
The prior testimony put Mikel Kelo's car at the Barker Little house on the night he was killed.

[00:01:08] Speaker 05:
It said that Mr. Barker had told Mr. Lozier that he was interrogating somebody and to look out for the police.

[00:01:15] Speaker 05:
It recounted Mr. Barker's admission later that night that he and Ms.

[00:01:19] Speaker 05:
Little had, quote, beat him to death, unquote, and that they had dumped the body and shot the person in the head.

[00:01:26] Speaker 05:
No trial witness put Mr. Kelo at the Barker Little House that night or testified to a clear admission that Mr. Barker had, that he was involved in the killing.

[00:01:37] Speaker 05:
And Mr. Barker's, Mr. Lozier's prior testimony also linked Mr. Barker to incriminating jail notes that the prosecutor touted as important evidence in this case.

[00:01:48] Speaker 05:
The serious nature of the charges and the importance of Mr. Lozier's prior testimony

[00:01:53] Speaker 05:
each independently called for increased effort by the prosecution to locate Mr. Lozier before he could be determined to be unavailable.

[00:02:03] Speaker 05:
And they bear on what this court has said is a good measure of what is reasonably expected of the prosecution.

[00:02:09] Speaker 05:
It had to make the same efforts to locate and secure Mr. Lozier at trial that it would have put forth if it did not have his prior testimony.

[00:02:19] Speaker 05:
The prosecution did present a report

[00:02:22] Speaker 05:
that recounted contact with Mr. Lozier's family.

[00:02:25] Speaker 05:
It recited that at the request of the FBI agent, a deputy sheriff had reached out to William Lozier's family, which had not seen him in months.

[00:02:34] Speaker 05:
But the report did not say with whom the deputy had spoken.

[00:02:38] Speaker 05:
It did not give a relationship of that relative to Mr. Lozier or provide any indication of how close that person was to Mr. Lozier or the likelihood that the person would be in contact with Mr. Lozier.

[00:02:50] Speaker 05:
And the report also did not provide a time frame.

[00:02:54] Speaker 05:
This was too vague to show that Deputy Brooks had made reasonable efforts to locate Mr. Lozier through his family.

[00:03:00] Speaker 05:
Perhaps a single contact with a family member of unknown closeness to Mr. Lozier at an unknown time provides no basis to believe that the prosecution made reasonable efforts to locate Mr. Lozier through his family.

[00:03:14] Speaker 05:
It certainly does not show that the prosecution made the same effort in this regard that it would have done

[00:03:20] Speaker 05:
if it did not have the backstop of Mr. Lozier's prior testimony to use in its case.

[00:03:27] Speaker 05:
In two other areas,

[00:03:29] Speaker 05:
The prosecution identified.

[00:03:31] Speaker 05:
The record shows that what it did was not, in fact, reasonable efforts to locate Mr. Lozier.

[00:03:38] Speaker 05:
The first of these is what the prosecution did with what it said was where it believed Mr. Lozier might be staying in the week before trial.

[00:03:49] Speaker 05:
All the authorities did was go to that house a single time and knock on the door.

[00:03:54] Speaker 05:
They did nothing more when there was no answer.

[00:03:57] Speaker 05:
They did not try another visit to the house.

[00:03:59] Speaker 05:
They did not try to ask any neighbors if they had seen Mr. Lozier or had any information about him.

[00:04:06] Speaker 01:
Doing nothing when there was... But did they have some information that this gentleman had been taken to a shelter in Oklahoma City at one point, and he's pretty much transient in nature.

[00:04:17] Speaker 01:
He hadn't showed up for an uncle's funeral, according to the family.

[00:04:21] Speaker 01:
He hadn't shown up for his uncle's funeral, which his family said was very strange.

[00:04:28] Speaker 01:
They hadn't seen him for months.

[00:04:30] Speaker 01:
Whoever it was hadn't seen him for months.

[00:04:32] Speaker 05:
Well, we don't know when that was.

[00:04:34] Speaker 01:
Well, I understand that.

[00:04:35] Speaker 01:
I understand that.

[00:04:36] Speaker 01:
But this is a transient person who's

[00:04:39] Speaker 01:
got two bench warrants out for his arrest.

[00:04:42] Speaker 01:
They apparently tried to call some homeless shelters.

[00:04:46] Speaker 01:
They knew he was at a homeless shelter at one point, taken there by a family member.

[00:04:51] Speaker 01:
This isn't like we've got a person who's living at a residence and we believe that he's there and we ought to be able to just go and find him.

[00:04:59] Speaker 05:
Well, the prosecution in its supplement said that it had reason to believe that he was living at a particular address.

[00:05:04] Speaker 01:
And that's the one that they went and checked one time.

[00:05:07] Speaker 05:
They went to, they knocked on the door, and they did nothing more.

[00:05:10] Speaker 05:
They didn't go back another time.

[00:05:11] Speaker 05:
We don't even know what time of day it was.

[00:05:12] Speaker 05:
They saw that there was no mail addressed to them there, the two pieces of mail, but even the government doesn't rely on that.

[00:05:20] Speaker 05:
There's no evidence they spoke to any neighbors.

[00:05:23] Speaker 05:
They did nothing to really, other than knock on the door.

[00:05:27] Speaker 01:
That's not proof.

[00:05:27] Speaker 01:
What's the best case that would indicate that this idea of vagueness, that they took all these various actions, but we don't have specifics on them, and that you've got to have some fairly fine detail here?

[00:05:42] Speaker 01:
Through what, when, where, how, with respect to many of these different acts?

[00:05:48] Speaker 05:
Well, Harbin from the Eighth Circuit talks about how general statements

[00:05:52] Speaker 05:
without detail are not enough.

[00:05:55] Speaker 05:
And this court in Cook talked about how perfunctory efforts are not enough to meet what is a reasonably high good faith standard in this context.

[00:06:05] Speaker 01:
What were the general statements at Harbin?

[00:06:08] Speaker 05:
I don't recall off the top of my head what the general statements were.

[00:06:11] Speaker 05:
I'm just wondering if they were analogous here to what we have here.

[00:06:13] Speaker 05:
It's hard to imagine anything more general than I spoke to a family member.

[00:06:18] Speaker 05:
You know, we don't know who that person was.

[00:06:19] Speaker 05:
It's unlike the cases the government relies on here, where there was talk where we know who they spoke to.

[00:06:25] Speaker 01:
Well, there was somebody who knew that the uncle had died and it was very odd that he hadn't shown up and that he hadn't been seen for two months.

[00:06:31] Speaker 01:
Sure.

[00:06:32] Speaker 01:
Somebody with enough information about him to know

[00:06:35] Speaker 01:
that this was unusual.

[00:06:37] Speaker 01:
Certainly a family member.

[00:06:37] Speaker 01:
And had he kind of disappeared.

[00:06:39] Speaker 05:
But it could have been a second cousin, or it could have been a brother, could have been a father.

[00:06:44] Speaker 05:
We have no idea.

[00:06:46] Speaker 05:
And it's the government's burden to make this showing.

[00:06:49] Speaker 05:
As this court said in Cook, if there's any uncertainty, that cuts against the government, which is the proponent of the unavailability showing.

[00:07:00] Speaker 05:
And remember, this showing allows

[00:07:05] Speaker 05:
prior testimony to be used and deprives the person of the right of confrontation.

[00:07:12] Speaker 05:
So Mr. Lozier, Mr. Barker did not have the jury able to see Mr. Lozier testify to adjust his questioning in light of the jury's apparent reaction to the witness.

[00:07:26] Speaker 05:
Didn't have that face-to-face confrontation that's so important for the Sixth Amendment right.

[00:07:33] Speaker 05:
In terms of the homeless shelters, that's a logical place to look for somebody who's homeless.

[00:07:40] Speaker 05:
But there's no showing here that the government did anything more than make calls to three shelters, perhaps a single call.

[00:07:49] Speaker 05:
They didn't reach out to the websites.

[00:07:53] Speaker 05:
look at the websites and perhaps email, which at least for two of them was available back at the time of trial.

[00:07:59] Speaker 05:
They didn't go to the shelter, which would be the obvious and easy way to find, to see if somebody was there and to speak to staff and residents to find out whether Mr. Lozier had been there and what information they might have about him.

[00:08:12] Speaker 02:
Is it your position that all they did was to call in to the three shelters and no one answered the phone?

[00:08:23] Speaker 05:
Well, and that's what the statement says.

[00:08:25] Speaker 05:
It says that calls were made to three shelters, and the calls were unanswered.

[00:08:30] Speaker 02:
So if the government had needed... That's all we have on evidence of their efforts to reach out to shelters.

[00:08:37] Speaker 02:
That is all we have, yes.

[00:08:39] Speaker 05:
And they only did that after the court said he was dropped off at a shelter.

[00:08:45] Speaker 05:
Have you gone there and looked for him?

[00:08:47] Speaker 02:
Did the court say, have you gone there to look, or have you checked with the shelter?

[00:08:53] Speaker 05:
Perhaps have you checked into that?

[00:08:55] Speaker 05:
Have you looked into that?

[00:08:56] Speaker 05:
But they did find out that there was no shelter around Tinker Air Force Base.

[00:09:01] Speaker 05:
But it was logical to look for other shelters in the Oklahoma City area.

[00:09:05] Speaker 05:
They made perhaps a single call to three.

[00:09:08] Speaker 05:
There were three more at that time where Mr. Lozier could have been staying.

[00:09:14] Speaker 05:
They apparently made no effort at all with respect to those.

[00:09:17] Speaker 02:
Is there anything in the record that indicate that Mr. Lozier had a history of using shelters?

[00:09:27] Speaker 05:
Other than the fact that a relative said he has to be dropped off at a shelter?

[00:09:30] Speaker 05:
No.

[00:09:31] Speaker 05:
But again, this is a likely place to look for somebody.

[00:09:35] Speaker 05:
And the government had an agent.

[00:09:40] Speaker 05:
actually call the shelters.

[00:09:41] Speaker 05:
So the government evidently agreed that a homeless shelter is an obvious place to look for somebody who's homeless.

[00:09:48] Speaker 05:
The failing is how little they did in that regard.

[00:09:52] Speaker 05:
Making a single call that went unanswered and then nothing more is not at all reasonable.

[00:09:58] Speaker 05:
And it's certainly not what the government would have done if it didn't have Mr. Lozier's prior testimony and needed him, an important witness, for this murder trial.

[00:10:09] Speaker 05:
And that's what has to happen.

[00:10:11] Speaker 05:
That's the good measure of reasonableness.

[00:10:14] Speaker 05:
What efforts would they have made if they didn't have the backstop of Lozier's prior testimony and needed him for its case at trial?

[00:10:22] Speaker 05:
They can't do less when what's at stake is Mr. Barker's confrontation rights.

[00:10:28] Speaker 02:
Can I switch gears a little bit on you and talk about the... Was it a preliminary hearing in the state court for Ms.

[00:10:37] Speaker 02:
Little?

[00:10:38] Speaker 02:
were Mr. Loser testified?

[00:10:41] Speaker 05:
It was a preliminary hearing in state court, yes.

[00:10:44] Speaker 05:
I think it was for both of them.

[00:10:45] Speaker 02:
And Mr. Barker was there?

[00:10:48] Speaker 05:
Certainly he was represented there, yes.

[00:10:50] Speaker 02:
And as I understand it, he had the right to cross-examine.

[00:10:54] Speaker 05:
He did.

[00:10:55] Speaker 05:
We are not... There was an argument... I understand you're not contesting that.

[00:11:00] Speaker 02:
I'm getting to the harmless error.

[00:11:02] Speaker 02:
I mean, his testimony on paper is devastating, correct?

[00:11:08] Speaker 02:
testimony on paper is devastating, which is why he needs to be able to process it in court.

[00:11:13] Speaker 02:
You say the reason why there's prejudice here is because the jury could not look into the witness's eyes.

[00:11:18] Speaker 02:
They couldn't see the witness live.

[00:11:27] Speaker 02:
I'm not sure I see how that's going to detract from this testimony that he gave about the notes when there's

[00:11:37] Speaker 02:
fingerprints all over them, and there's little they could do with his cross-examination.

[00:11:44] Speaker 02:
And in fact, Barker chose to do nothing at the hearing.

[00:11:48] Speaker 02:
No, he did cross-examine on some things at the hearing, but... So we do have that cross-examination that would be available?

[00:11:55] Speaker 05:
We do, and we have that in... There always has to be at least an opportunity for cross-examination of prior tests and their intubates.

[00:12:01] Speaker 02:
So you have to assume that that lawyer did the best job that lawyer could in cross-examination?

[00:12:06] Speaker 05:
At that time, with the limited information, we're not saying that that doesn't suffice to allow his prior testimony to be introduced if he's unavailable.

[00:12:18] Speaker 02:
But wait a minute.

[00:12:19] Speaker 02:
You not only had Mr. Loser testifying orally, but you had the papers, right, where there's fingerprints all over it.

[00:12:30] Speaker 05:
We did.

[00:12:30] Speaker 05:
But let me get back to the first part about the importance of face-to-face confrontation.

[00:12:36] Speaker 05:
a critical aspect of the confrontation clause before the jury.

[00:12:41] Speaker 05:
So this jury could make a determination.

[00:12:44] Speaker 05:
As the Supreme Court said, I think, in Coy, look me in the eye and say that.

[00:12:49] Speaker 05:
I think that's how Justice Scalia started the opinion.

[00:12:51] Speaker 05:
He had the right to have the jury, which was deciding its actual guilt on murder, be able to determine whether it believed

[00:13:00] Speaker 05:
by seeing Mr. Lozier live, whether he believed his accusations.

[00:13:05] Speaker 02:
And in terms of the- But let me, there was independent evidentiary support for what Mr. Lozier was saying, quite independent of his own testimony, correct?

[00:13:16] Speaker 05:
I'm not sure what you're referring to.

[00:13:17] Speaker 05:
If you're referring to the notes, I do want to address that, the Kites.

[00:13:20] Speaker 02:
I am talking about the notes.

[00:13:22] Speaker 05:
OK.

[00:13:22] Speaker 05:
The Kites, even the government, Mr. Lozier's preliminary hearing testimony linked

[00:13:29] Speaker 05:
the supposed kites to Mr. Barker.

[00:13:33] Speaker 05:
He said, I got them from him.

[00:13:36] Speaker 05:
Even the government, when it says, without Lozier's testimony, this is the evidence we had, doesn't refer to the kites.

[00:13:45] Speaker 05:
Mr. Lozier, who was facing charges himself and was hoping for leniency from cooperating with the government,

[00:13:53] Speaker 05:
They have written those kites himself.

[00:13:55] Speaker 05:
We just don't know.

[00:13:56] Speaker 05:
And it's also a link.

[00:13:57] Speaker 02:
But wasn't there forensic evidence that Barker had touched and passed the notes?

[00:14:03] Speaker 05:
Yes.

[00:14:03] Speaker 05:
And we have no idea whether they shared a cell, what the access was in that jail, whether Mr. Lozier could have gotten the paper from Mr. Barker.

[00:14:13] Speaker 02:
What I think you need to address is that notes that support Lozier's testimony

[00:14:22] Speaker 02:
have an indication that Mr. Barker had handled those notes?

[00:14:27] Speaker 04:
Not handled those notes, handled that paper.

[00:14:30] Speaker 04:
They could have been in the same cell.

[00:14:32] Speaker 02:
You mean they added the notes after he passed a blank piece of paper to somebody?

[00:14:37] Speaker 05:
Not that he passed a blank piece of paper, but that Mr. Lozier had access to the blank piece of paper.

[00:14:42] Speaker 05:
And the government could certainly have tried to disprove that.

[00:14:46] Speaker 05:
They said they had a handwriting analyst, but they never produced one at trial.

[00:14:50] Speaker 05:
That's the easiest way to show that this is Mr. Barker's handwriting, but they didn't do that.

[00:14:56] Speaker 01:
What was the cross-examination at the preliminary hearing about the kites?

[00:15:02] Speaker 05:
I'm not sure there was.

[00:15:03] Speaker 01:
What came out of that?

[00:15:04] Speaker 01:
Was there anything?

[00:15:05] Speaker 05:
I'm not sure that there was.

[00:15:06] Speaker 05:
But certainly they didn't go into this level of detail, which my point is that we just don't know from the trial testimony

[00:15:15] Speaker 05:
that the kites were actually written by Mr. Barker.

[00:15:19] Speaker 05:
And that's critical.

[00:15:21] Speaker 05:
And his hearing testimony, even if there was cross-examination with it, is not enough if he's available.

[00:15:27] Speaker 05:
The jury still has the right to look him in the eye and make its own credibility determination about him, regardless of what was said at the preliminary hearing.

[00:15:36] Speaker 02:
Do you have any authority that suggests in any way that when you're talking about the Confrontation Clause is that there's

[00:15:46] Speaker 02:
a heavier burden for the prosecution to show that the error was harmless?

[00:15:55] Speaker 05:
Well, it's a constitutional violation, so of course they have to show harmless benefit.

[00:15:58] Speaker 02:
I understand, but do you have any specific authority that says when you're talking about the confrontation clause, the concept of harmless error has a totally different complexion?

[00:16:09] Speaker 05:
I'm not sure it has a totally different complexion, but it's the traditional harmless to unreasonable doubt.

[00:16:13] Speaker 02:
You don't have any authority indicating that

[00:16:15] Speaker 02:
that harmless error is treated differently under confrontation clause cases than it is under other cases.

[00:16:22] Speaker 05:
Do you mean more strictly than harmless beyond reasonable doubt?

[00:16:26] Speaker 05:
No.

[00:16:28] Speaker 05:
Yeah.

[00:16:29] Speaker 05:
But it still has to be shown to be harmless beyond reasonable doubt.

[00:16:31] Speaker 05:
And that's a very strict requirement.

[00:16:34] Speaker 05:
And the government does virtually nothing here to try to meet its burden.

[00:16:38] Speaker 05:
It's not our burden to disprove

[00:16:40] Speaker 05:
Harmless beyond reasonable doubt is the government's burden to show it's harmless beyond a reasonable doubt and they've utterly failed to do that.

[00:16:46] Speaker 05:
So, I'm way over.

[00:16:48] Speaker 05:
We would ask- You are- I'll give you some rebuttal then.

[00:16:51] Speaker 00:
Okay.

[00:16:51] Speaker 05:
We would ask the court to vacate Mr. Barker's convictions and remand for a new trial.

[00:16:57] Speaker 05:
All right.

[00:16:57] Speaker 05:
Thank you, counsel.

[00:16:58] Speaker 05:
Let's hear from the government.

[00:17:12] Speaker 00:
May it please the Court.

[00:17:14] Speaker 00:
Good morning.

[00:17:14] Speaker 00:
Jared Lehman on behalf of the United States.

[00:17:17] Speaker 00:
Your Honor, I want to start with one of the questions about visiting the residence of Mr. Lozier, and I'll read from one of the 302 reports stated March 28th of 2023.

[00:17:30] Speaker 00:
It's in the record at page 273.

[00:17:32] Speaker 00:
The house on Giselle Street, which is the house that they visited,

[00:17:38] Speaker 00:
had been a rental by Loser's former girlfriend approximately four to five years ago.

[00:17:43] Speaker 00:
So when they went and visited this house on the eve of trial, it was not where the defendant was currently living.

[00:17:49] Speaker 00:
It was a prior residence that the witness, Mr. Lozier, had occupied with his girlfriend, and that was years in the past.

[00:17:59] Speaker 00:
So I want to make sure that we're clear on that.

[00:18:00] Speaker 01:
I take it that was the only address that they had for him.

[00:18:05] Speaker 00:
That's correct, Your Honor.

[00:18:06] Speaker 01:
He was transient, or believed to be transient at that time.

[00:18:09] Speaker 00:
Yes, Your Honor, that's correct.

[00:18:10] Speaker 00:
Regrettably, I did not put a timeline.

[00:18:13] Speaker 01:
So your suggestion is there really wouldn't have been any reason to keep going back to that house because they had no reason to believe he was there necessarily.

[00:18:20] Speaker 00:
That's right, Your Honor.

[00:18:23] Speaker 00:
My reading of the record shows the United States government's first contact with Mr. Lozier was in March of 2022, and that's in an interview.

[00:18:31] Speaker 00:
In that interview, he identifies himself as homeless.

[00:18:34] Speaker 00:
However, he says, I can get mail at a location known as diversion hub.

[00:18:38] Speaker 00:
And that's important because they do contact Diversion Hub later, and they say that they've never heard of Mr. Lozier before.

[00:18:43] Speaker 00:
He also says, you can contact me through my lawyer.

[00:18:46] Speaker 00:
He's represented in an ancillary matter.

[00:18:48] Speaker 00:
It doesn't have anything to do with this federal murder that's occurred.

[00:18:52] Speaker 00:
But in 2022, that's what he identifies himself as.

[00:18:54] Speaker 00:
I'm homeless.

[00:18:55] Speaker 00:
You can contact me at Diversion Hub.

[00:18:57] Speaker 00:
Also, please call my lawyer if you want to get in touch with me.

[00:18:59] Speaker 00:
She knows where I'm at.

[00:19:01] Speaker 00:
The United States keeps in contact with that lawyer who doesn't know where her client is at.

[00:19:06] Speaker 00:
And in fact, she makes a statement to the effect of, listen, if he gets picked up by another agency, I'll definitely let you know, I mean, you, the FBI, know that he's been apprehended so you can come serve him this trial subpoena.

[00:19:17] Speaker 03:
How long after that was the little preliminary hearing?

[00:19:23] Speaker 00:
The preliminary, the state preliminary hearing, Your Honor.

[00:19:26] Speaker 00:
So the offense conduct is April of 2019.

[00:19:28] Speaker 00:
The state prelim is June of 2020.

[00:19:30] Speaker 00:
The FBI's, as it was, the United States indicts the defendant in May of 21.

[00:19:37] Speaker 00:
The FBI's contact with Mr. Lozier the first time is in March of 22.

[00:19:42] Speaker 00:
And that's when he tells them, I have this lawyer.

[00:19:45] Speaker 03:
Do we know where they found him in 2022?

[00:19:50] Speaker 00:
Your Honor, the record does not indicate how they found him in 2022.

[00:19:53] Speaker 00:
I'm sorry, those facts just don't exist in the record before us.

[00:20:01] Speaker 00:
Continuing on with their attempts to contact Mr. Lozier, they contact his lawyer again.

[00:20:07] Speaker 00:
They contact his probation officer.

[00:20:09] Speaker 00:
They contact the Seminole Police Department, which is where he lived.

[00:20:12] Speaker 00:
They contact an ATF task force officer in an attempt to contact this gentleman.

[00:20:17] Speaker 00:
And they just simply can't find them.

[00:20:19] Speaker 00:
And I really want to dive down into this concept that we should have done more with the homeless shelters.

[00:20:25] Speaker 00:
Originally, there was some information from the family that they dropped him off in a homeless shelter.

[00:20:30] Speaker 01:
And when was that?

[00:20:32] Speaker 00:
The original homeless shelter family statement was going to be in March of 2023.

[00:20:43] Speaker 00:
We follow up with that family member also in March of 2023.

[00:20:48] Speaker 00:
And that family member clarifies, well, it wasn't really a homeless shelter.

[00:20:52] Speaker 00:
I'm paraphrasing here.

[00:20:53] Speaker 00:
We took him to Tinker Air Force Base, which is in the Oklahoma City metro area, and just kind of dropped him off there.

[00:21:00] Speaker 00:
There's never a statement from the family, affirmatively, we dropped him off at a homeless shelter.

[00:21:06] Speaker 00:
They instead clarified, we dropped him off near Tinker Air Force Base.

[00:21:10] Speaker 00:
And in response to that, the FBI contacted Tinker Air Force Base

[00:21:14] Speaker 00:
hadn't seen or heard from the witness, contacted the Oklahoma County Sheriff's Department, which shares some jurisdiction around Tinker Air Force Base, had not seen or heard from the witness, contacted the Midwest City and Del City Police Departments, which abut Tinker Air Force Base in many areas, no contact with the witness in those instances either.

[00:21:34] Speaker 00:
The FBI goes on, contacts the Oklahoma City Police Department, who says, yes, we have had a contact.

[00:21:40] Speaker 00:
But when you look at the record, that contact was in July of 2022.

[00:21:44] Speaker 00:
So this is a year prior, almost, when the Oklahoma City Police Department had a contact with him.

[00:21:50] Speaker 00:
And the Oklahoma City Police Department's documents show that he was transient, but did list a phone number.

[00:21:56] Speaker 00:
The FBI called that phone number, and unfortunately, he was no longer in service.

[00:22:00] Speaker 00:
So in sum, the government has contacted

[00:22:04] Speaker 00:
several different police departments, about a half dozen by my count.

[00:22:07] Speaker 00:
They've contacted the witness's attorney, who he said, please contact me.

[00:22:12] Speaker 00:
They contacted the Differsion Hub location where he said he could receive mail, and they had either never heard of him or he was no longer there.

[00:22:19] Speaker 00:
They went to the last known address that the witness had.

[00:22:23] Speaker 00:
Unfortunately, that was years in the past that he was known to live there, but he is homeless after all.

[00:22:27] Speaker 00:
But regardless, the FBI tried and certainly went to that location in an effort to find him.

[00:22:33] Speaker 00:
couldn't find it spoke to the family a number of times and I appreciate that the record doesn't indicate you know what degree of

[00:22:40] Speaker 00:
a family they spoke to, but nonetheless, they were in contact with family of the witness, and unfortunately, they hadn't seen him.

[00:22:47] Speaker 00:
Further, keep in mind, against this entire backdrop, the witness has warrants for his arrest.

[00:22:52] Speaker 00:
If any law enforcement officer would have encountered this witness, surely something would have come up, but unfortunately, the witness was just, I'm not going to say he's hiding, but he was just transient, if you will.

[00:23:04] Speaker 00:
And that doesn't mean that the government has the ability to find somebody.

[00:23:08] Speaker 00:
There was nowhere else for the government to look.

[00:23:11] Speaker 00:
There was no rock left to turn over.

[00:23:14] Speaker 02:
You indicated that the Tinker Air Force base stuff was not specifically vis-a-vis a closed shelter or anything.

[00:23:24] Speaker 02:
Did the first time the question of or the suggestion that you should check with homeless shelters

[00:23:32] Speaker 02:
The first time that happened was when the district court stated that?

[00:23:38] Speaker 00:
Your Honor, I believe that's what the record indicates.

[00:23:40] Speaker 00:
There's an original report to the effect of, we dropped him off at a homeless shelter.

[00:23:45] Speaker 00:
The district court, when they're doing the pretrial motion, say, hey, the district court tells the government, hey, I want you to look into that homeless shelter thing a little bit more.

[00:23:54] Speaker 00:
The government then re-interviews the family.

[00:23:58] Speaker 00:
So that's independent of dropping him off by Tinker Air Force base.

[00:24:03] Speaker 00:
We learned that after the district court ordered us to investigate it a little bit more.

[00:24:07] Speaker 00:
So we have the original.

[00:24:10] Speaker 00:
Your Honor, we'd like to use this transcript.

[00:24:12] Speaker 00:
The witness is unavailable.

[00:24:13] Speaker 00:
We have a hearing on the matter.

[00:24:14] Speaker 00:
The district court reserves judgment on that issue and says, hey, government, I want you to go look into the homeless shelter thing a little bit more.

[00:24:23] Speaker 00:
The FBI then re-interviews the family and gets a more definite statement that, hey, what we actually did was dropped him off near Tinker Air Force Base, not at a homeless shelter.

[00:24:32] Speaker 00:
We just assumed that that's where he was going.

[00:24:35] Speaker 00:
In response to that, they contact the Tinker Air Force Base, the abutting police departments, and then they also call three homeless shelters on the phone in the Oklahoma City area in response to the district court's inquiry.

[00:24:47] Speaker 00:
The government then refiles its motion.

[00:24:49] Speaker 03:
But they never talked to anybody at those shelters?

[00:24:52] Speaker 00:
The record does not indicate that anyone ever answered the phone your honor so correct no one no one was actually spoken to by the government at the shelters.

[00:25:00] Speaker 03:
After that they've done a little bit more paid a visit to the shelter I'm sure that staff I mean.

[00:25:08] Speaker 03:
I doubt if we call the Denver homeless shelter today we get much response seems like.

[00:25:15] Speaker 03:
The nature of the situation as an on-site visit might be kind of your basic investigative approach.

[00:25:25] Speaker 00:
If there had been any indication that the witness was at the shelter, absolutely.

[00:25:29] Speaker 00:
But that turned out to be kind of a false flag or something along those lines.

[00:25:36] Speaker 00:
It just wasn't true that he was ever at a homeless shelter.

[00:25:40] Speaker 00:
And so there's no way to know that he was there.

[00:25:42] Speaker 01:
So it would have been an absolutely futile effort for the government to... Might they have done it if they didn't have his preliminary hearing testimony and were really needing this guy?

[00:25:50] Speaker 00:
Your Honor, I can't imagine anything else left for them to do.

[00:25:53] Speaker 01:
I really... I would then go to the homeless shelter directly.

[00:25:57] Speaker 00:
I don't know that they would have done that.

[00:25:59] Speaker 00:
I can't represent to the court that they would have done that simply because there was no... Well, that's the question.

[00:26:04] Speaker 01:
I don't think... The cook test is, you know, would they have done more if they didn't have his preliminary hearing testimony?

[00:26:10] Speaker 00:
Certainly they could have gone to the homeless shelters, but I don't know that they would have.

[00:26:16] Speaker 00:
It's not a place that would have come up in their investigation to go look.

[00:26:20] Speaker 00:
because the family said we didn't drop him off at a homeless shelter.

[00:26:23] Speaker 00:
We dropped him outside of Tinker Air Force Base, and that's where the FBI looked at his last known location.

[00:26:29] Speaker 00:
So I can't represent to the court that they would have actually gone had we not had the backdrop of his state-level preliminary hearing transcript.

[00:26:37] Speaker 02:
After the district court suggested contacting homeless shelters and something was done, was there a hearing where the prosecution reported back to the district court as to what specifically they had done vis-a-vis shelters?

[00:26:58] Speaker 00:
Yes, there wasn't a hearing in the traditional sense, Your Honor.

[00:27:01] Speaker 00:
As I read the record, my understanding is the government resubmitted its motion to use the witnesses' testimony and made attachments of the FBI 302s of the government's attempt to go and locate the witness again and specifically included the reference to the homeless shelter.

[00:27:18] Speaker 00:
In response to that, the district court issued an order saying, okay, I'm going to allow the transcript to be read.

[00:27:24] Speaker 00:
And the defendant, Mr. Coker Barker, filed a standing objection to that order.

[00:27:30] Speaker 00:
So it was just paper back and forth.

[00:27:32] Speaker 00:
There was no live engagement on the issue in court.

[00:27:39] Speaker 00:
That's my reading of the record.

[00:27:40] Speaker 00:
However, Your Honor, I will say that the parties were actively discussing this.

[00:27:44] Speaker 00:
If you read the gray space in the transcript, when the jury's out, they're actively discussing this transcript, how they're going to read it, how they're going to get it in.

[00:27:54] Speaker 00:
write a jury selection.

[00:27:56] Speaker 00:
They're discussing it at breaks during the trial.

[00:27:58] Speaker 00:
The transcript itself isn't read until, I believe, day three of the trial.

[00:28:00] Speaker 00:
So it's a near constant topic of discussion throughout the recesses, if you will, of the trial in the space outside of the jury.

[00:28:09] Speaker 00:
So it's something that's talked about very frequently, Your Honor.

[00:28:13] Speaker 00:
And I will add in response, the defendant

[00:28:17] Speaker 00:
filed a trial brief, if you will, with the district court after it issued the order saying, hey, we want to impeach with some things that maybe didn't come up in the transcript.

[00:28:26] Speaker 00:
And so there was a number of filings and discussions throughout the case about Mr. Lozier's testimony.

[00:28:37] Speaker 00:
If there's no further questions, I'm inclined to cede my time.

[00:28:42] Speaker 00:
And I would ask that this court affirm the defendant's condition.

[00:28:45] Speaker 02:
One thing, are you persisting in your position that the objection was not preserved?

[00:28:53] Speaker 02:
The defendant had ample opportunity.

[00:28:58] Speaker 02:
I've read it all.

[00:29:00] Speaker 02:
I've heard what you said in the paper.

[00:29:02] Speaker 02:
Are you persisting in that position today?

[00:29:05] Speaker 00:
Yes, sir.

[00:29:07] Speaker 02:
All right.

[00:29:08] Speaker 03:
Council could you give Mr.. Pink Council's excuse appreciate the session and could you give Mr.. Pink us two minutes?

[00:29:24] Speaker 05:
Just quickly on the preservation if you look at volume one at 262 263 the district court understood that this was a confrontation clause claim in terms of

[00:29:34] Speaker 05:
what the government said about the house on Gazelle Street.

[00:29:37] Speaker 05:
This is not what they said in the district court.

[00:29:40] Speaker 05:
There they said the house on Gazelle Street, they attempted to locate Lozier at a house where it was believed he might be staying.

[00:29:48] Speaker 05:
They had both of the exhibits then.

[00:29:49] Speaker 05:
They didn't make this claim that those were the one in the same house.

[00:29:52] Speaker 05:
And there's no way to tell that from the record.

[00:29:56] Speaker 05:
And we can't assume our way into a finding of unavailability.

[00:29:59] Speaker 05:
It's the government's burden.

[00:30:01] Speaker 05:
It can't say just because both houses were

[00:30:04] Speaker 05:
references to a house on Gazelle Street that they're one in the same house.

[00:30:08] Speaker 05:
This is, I think the house numbers, one house number is like 1228, so there's clearly many blocks of Gazelle Street and there's no way to say that it's one in the same house.

[00:30:19] Speaker 05:
In terms of contact with police, that's all well and good, but it doesn't show they made actual, made reasonable efforts to locate him at a homeless shelter, which of course is a likely place, a reasonable place to look for somebody who

[00:30:33] Speaker 05:
is homeless.

[00:30:34] Speaker 05:
And to say, I can't say whether they would have looked.

[00:30:37] Speaker 05:
The point is, they should have looked there.

[00:30:39] Speaker 05:
And they should have done much more than make a phone call.

[00:30:44] Speaker 05:
In terms of whether there was any discussion of unavailability on the record, there was, at volume three, I believe it's pages 12 to 16, there was some discussion at a pretrial conference.

[00:30:58] Speaker 05:
And that's where

[00:30:59] Speaker 05:
The court said, what have you done to locate Mr. Lozier?

[00:31:01] Speaker 05:
And I think you should look at a homeless shelter if there was evidence he was dropped off there.

[00:31:05] Speaker 05:
And even if there wasn't evidence that he was dropped off there at a homeless shelter, it's still a place where they should have looked for him.

[00:31:13] Speaker 05:
And they didn't.

[00:31:14] Speaker 05:
And it's the government's burden.

[00:31:16] Speaker 05:
And any factual uncertainties here cut against the government.

[00:31:21] Speaker 03:
What was the length of time between trial

[00:31:27] Speaker 03:
and the statement by the family member that he had been dropped off at Tinker Air Force.

[00:31:35] Speaker 03:
Was it a year?

[00:31:37] Speaker 03:
Do you have any idea?

[00:31:38] Speaker 05:
We don't, because all the FBI agents' report says is, I spoke to the deputy sheriff on March 10th, I believe.

[00:31:49] Speaker 05:
He recounted that, at our request, he had made inquiries.

[00:31:53] Speaker 05:
But we don't know when those inquiries were.

[00:31:54] Speaker 05:
We don't know when he's reporting that from.

[00:31:57] Speaker 05:
So we really don't know.

[00:31:58] Speaker 05:
Same as with the uncle's funeral.

[00:32:01] Speaker 05:
We don't know how far back in time that was.

[00:32:03] Speaker 01:
I thought they spoke to the family in March of 2023.

[00:32:06] Speaker 05:
No.

[00:32:07] Speaker 05:
What the FBI agent says is, that's when I spoke to the deputy sheriff, and he reported that at our request.

[00:32:14] Speaker 05:
But we don't know when that request was.

[00:32:16] Speaker 05:
So we just don't know.

[00:32:18] Speaker 05:
And what we do know is close in time to trial, they apparently had a residence where they thought he might be.

[00:32:24] Speaker 05:
They went and knocked once and nothing more.

[00:32:27] Speaker 05:
And they didn't check the shelters.

[00:32:29] Speaker 05:
They didn't go to the three.

[00:32:30] Speaker 05:
And there were three more they should have gone to.

[00:32:33] Speaker 05:
All right, counsel.

[00:32:34] Speaker 03:
Thank you very much for your excuse.

[00:32:37] Speaker 03:
Those were helpful arguments.

[00:32:38] Speaker 03:
We appreciate that.

[00:32:39] Speaker 03:
The case shall be submitted.

[00:32:40] Speaker 03:
And the court will take a brief recess.