[00:00:00] Speaker 02:
OK, our next case is the United States versus Beard, number 257031.

[00:00:06] Speaker 02:
Ms.

[00:00:08] Speaker 02:
Epperly, I said you were excused earlier.

[00:00:12] Speaker 02:
I didn't realize.

[00:00:12] Speaker 02:
I apologize for that.

[00:00:14] Speaker 02:
And you are now unexcused.

[00:00:16] Speaker 02:
All right, counsel, you may proceed.

[00:00:20] Speaker 03:
May it please the court, I'm Neil Van Dalsum.

[00:00:22] Speaker 03:
I'm here for the appellant, Stephen Beard.

[00:00:26] Speaker 03:
Briefly at the beginning, Your Honor, I would like to address the hearsay issue, which was argument B in our opening brief.

[00:00:38] Speaker 03:
The government concedes that exhibit 86, which has been characterized as a letter, but really isn't, was hearsay.

[00:00:49] Speaker 03:
And at trial, the government used that letter to establish the date

[00:00:54] Speaker 03:
that Mr. Beard became a member of Indian tribe.

[00:01:01] Speaker 03:
The government's response is, well, exhibit 85 eliminates any harm from that.

[00:01:08] Speaker 03:
And in preparing for oral argument, I studied exhibit 85.

[00:01:13] Speaker 03:
And I want to just point out some characteristics of exhibit 85.

[00:01:19] Speaker 03:
Page one is a CDIB record from the Bureau of Indian Affairs.

[00:01:24] Speaker 03:
All that really addresses is blood quantum.

[00:01:29] Speaker 03:
It does not address the question of tribal recognition by the Cherokee Nation.

[00:01:35] Speaker 03:
Pages two and three are some sort of a printout.

[00:01:39] Speaker 03:
It's unclear exactly what that is.

[00:01:44] Speaker 03:
We know, though, if you read the content of it, that it was printed in 2024.

[00:01:49] Speaker 03:
and which is after the events that give rise to this case because it says Mr. Beard's 51 years old and lists his date of birth.

[00:01:58] Speaker 03:
It also doesn't list any information that indicates a date of tribal membership.

[00:02:04] Speaker 03:
And the fourth page also doesn't have any documents that address tribal membership.

[00:02:10] Speaker 03:
And it includes a personal ID that was issued by the state of Oklahoma that doesn't expire until June 30

[00:02:19] Speaker 03:
after the events of this case.

[00:02:22] Speaker 03:
So none of those documents in any way have the effect that the government claims of providing the jury with a basis to find beyond a reasonable doubt that tribal membership existed at the time of the alleged offense.

[00:02:39] Speaker 03:
Having said that, I would like to discuss the sufficiency of the evidence and prosecutorial misconduct arguments.

[00:02:48] Speaker 02:
On that last, on that issue about Exhibit 85, what about the testimony of the FBI special agent, Kurt?

[00:03:00] Speaker 02:
Could the government rely on that testimony to support their position on Indian staff?

[00:03:06] Speaker 03:
There's nothing in the record, as I read it, that establishes when.

[00:03:13] Speaker 03:
And that is our contention.

[00:03:17] Speaker 03:
There is evidence that he's an Indian at the time of trial.

[00:03:22] Speaker 03:
What's lacking is evidence that he was an Indian when this happened.

[00:03:29] Speaker 01:
I'm really confused about that argument.

[00:03:32] Speaker 01:
My impression was that you're either Indian or you're not.

[00:03:37] Speaker 01:
And that may be confirmed at particular times and places.

[00:03:43] Speaker 01:
But it doesn't affect a status that you are or are not.

[00:03:47] Speaker 01:
So I don't understand what you've just said.

[00:03:50] Speaker 01:
You're suggesting that at one point he was not an Indian and then when it got confirmed, kind of like quantum mechanics, all of a sudden it flops into reality, which didn't exist before.

[00:04:01] Speaker 01:
I just don't understand what you're saying.

[00:04:04] Speaker 03:
I would rely on Hatley.

[00:04:07] Speaker 03:
This court's decision, Hatley makes clear that Indian status is not based just on your genealogy.

[00:04:16] Speaker 03:
It is a political association.

[00:04:20] Speaker 03:
Antelope also indicates that.

[00:04:23] Speaker 03:
Indian status is not racial.

[00:04:28] Speaker 03:
You can be racially eligible to be a member of a tribe, but elect not to be one or the tribe doesn't accept you as a member.

[00:04:41] Speaker 03:
And so it matters what your

[00:04:44] Speaker 03:
Political affiliation was as of the date of the offense is the issue.

[00:04:52] Speaker 03:
If there's no further questions on that topic, I'll move to the sufficiency of the evidence and prosecutorial misconduct.

[00:05:00] Speaker 03:
And I'd like to talk about the facts of the case.

[00:05:06] Speaker 03:
And I understand that we're not here to retry the case, but the strength of the evidence

[00:05:13] Speaker 03:
is important both to the sufficiency of the evidence and to the issue of prosecutorial misconduct.

[00:05:20] Speaker 03:
Because for prosecutorial misconduct, as this court noted in the Arietta-Agrasot case, the court has to consider how strong was this case when we were evaluating whether this improper conduct by the prosecutor matters.

[00:05:38] Speaker 03:
So it's all one big issue.

[00:05:42] Speaker 03:
Was this a strong case?

[00:05:44] Speaker 03:
Was it a weak case?

[00:05:46] Speaker 03:
Is it a sufficient evidence case?

[00:05:51] Speaker 03:
I would ask the court to think about the role of imperfect self-defense.

[00:05:57] Speaker 03:
That was a defense in this case.

[00:05:59] Speaker 03:
To find Mr. Beard guilty, the jury had to find beyond a reasonable doubt that he did not act in imperfect self-defense.

[00:06:12] Speaker 03:
He acted in imperfect self-defense if he subjectively acted out of fear that he was in danger of imminent serious bodily injury.

[00:06:24] Speaker 03:
So to prevail, the government had to present evidence to establish beyond a reasonable doubt that that's not why he acted.

[00:06:33] Speaker 02:
But just to be clear on appeal, it's whether any reasonable jury could find.

[00:06:40] Speaker 02:
Correct.

[00:06:41] Speaker 03:
And on that point, I would refer you to Goldsberry, which we've cited, that has a fairly structured approach to how to answer that question.

[00:06:54] Speaker 03:
And it points out that it's not sufficient for this court to say, well, we can make up some wild theory that supports the jury's verdict.

[00:07:05] Speaker 03:
It is more

[00:07:07] Speaker 03:
Does this evidence taken together make sense?

[00:07:11] Speaker 03:
Does the verdict make any sense?

[00:07:13] Speaker 03:
Is there a way it makes sense?

[00:07:18] Speaker 03:
The government's, first of all, the evidence of what actually happened is that there was a history of violence perpetrated by Mr. Ingram against Mr. Beard.

[00:07:31] Speaker 03:
We've outlined that in the brief.

[00:07:33] Speaker 03:
All these incidents.

[00:07:35] Speaker 03:
The Ghillie suit incident, the brass knuckles incident, all of these things where Mr. Ingram directed violence toward Mr. Beard.

[00:07:46] Speaker 03:
There was ample evidence that Mr. Ingram carried a gun and that Mr. Beard knew that.

[00:07:51] Speaker 03:
Four different witnesses testified, yeah, it was his normal thing to have a gun.

[00:07:57] Speaker 03:
As far as I know, he always had a gun.

[00:08:00] Speaker 01:
But when he was shot, he wasn't pulling out a gun or threatening

[00:08:04] Speaker 01:
Beard, is that right?

[00:08:05] Speaker 03:
That's correct.

[00:08:06] Speaker 03:
He was too busy invading Mr. Beard's home.

[00:08:11] Speaker 03:
This shooting happened during what can only be described as a home invasion.

[00:08:17] Speaker 03:
Ms.

[00:08:17] Speaker 03:
Meigs was jamming something to pry the door, and Mr. Ingram was pulling with all of his might and ripped the door off.

[00:08:27] Speaker 04:
Tell me if you think these facts are supported by the record.

[00:08:32] Speaker 04:
that Mr. Beard told, I can't remember what her name is, his girlfriend, for lack of a better term, that she needed to come get her stuff and that he was going to be gone from his house.

[00:08:53] Speaker 03:
On one of those, I'm going somewhere other than home.

[00:08:59] Speaker 03:
That is supported by the record.

[00:09:01] Speaker 03:
On the other, I think it's disputed what was said.

[00:09:05] Speaker 04:
Whether it's disputed or whether it's supported by the record is another thing.

[00:09:11] Speaker 04:
I mean, disputed testimony can still support that fact.

[00:09:15] Speaker 03:
The question is, was this a trap?

[00:09:22] Speaker 03:
Did Mr. Beard say those things?

[00:09:25] Speaker 03:
You're getting ahead of me.

[00:09:26] Speaker 04:
Are we in agreement on those two facts that those could be supported, but there's record evidence that supports those two statements.

[00:09:32] Speaker 03:
There's evidence that Mr. Beard said, get your stuff.

[00:09:37] Speaker 03:
And Mr. Beard says, I was talking about the stuff in my truck, the Walmart bag.

[00:09:42] Speaker 04:
Okay.

[00:09:43] Speaker 04:
That's just disputed testimony again.

[00:09:45] Speaker 04:
His statement can be heard either way.

[00:09:49] Speaker 04:
But he made the statement.

[00:09:51] Speaker 04:
Later, maybe he clarified it.

[00:09:53] Speaker 04:
Maybe he said, I meant the stuff in the truck.

[00:09:58] Speaker 04:
But that's one of his exact words.

[00:10:01] Speaker 04:
Do you agree with that?

[00:10:03] Speaker 04:
At least there's some evidence those weren't his exact words.

[00:10:06] Speaker 04:
Get your stuff.

[00:10:08] Speaker 04:
I'm not going to be home.

[00:10:09] Speaker 04:
Something to that effect.

[00:10:10] Speaker 03:
I'm going not home.

[00:10:12] Speaker 03:
Right, I'm going not home.

[00:10:14] Speaker 04:
Okay, so that sort of suggests I'm not going to be home, right?

[00:10:16] Speaker 04:
Right.

[00:10:18] Speaker 04:
Okay.

[00:10:18] Speaker 04:
Didn't park in his normal spot?

[00:10:21] Speaker 03:
Actually, the evidence is that his car broke down in the field and there's no evidence to the contrary.

[00:10:28] Speaker 04:
Was his car in its normal spot?

[00:10:30] Speaker 04:
It was not.

[00:10:30] Speaker 04:
Okay, so that's supported by the record that his car was not in the normal spot.

[00:10:34] Speaker 03:
Correct.

[00:10:35] Speaker 04:
Okay.

[00:10:36] Speaker 04:
There was testimony that

[00:10:38] Speaker 04:
You had to pry the door open with a screwdriver to get in because the lock was messed up.

[00:10:42] Speaker 04:
Is that true?

[00:10:43] Speaker 03:
That is not what the record shows.

[00:10:48] Speaker 03:
But Ms.

[00:10:48] Speaker 03:
Meeks testified that he would put a chain on it and that she could open that using a pry bar.

[00:10:58] Speaker 03:
OK.

[00:11:01] Speaker 03:
All right, go ahead.

[00:11:02] Speaker 03:
The issue on the trap is, does the evidence establish that he set a trap?

[00:11:10] Speaker 03:
Was it his plan?

[00:11:12] Speaker 03:
Clearly, you can't set a trap, bring somebody someplace, make it appear that you're being attacked to shoot them.

[00:11:19] Speaker 03:
That's not imperfect self-defense.

[00:11:22] Speaker 03:
The problem is the record as a whole doesn't support that at any level.

[00:11:26] Speaker 03:
Globally, it doesn't.

[00:11:29] Speaker 03:
They didn't think they were being invited over.

[00:11:32] Speaker 03:
They parked at the neighbors.

[00:11:34] Speaker 03:
They went across the field to get to the house.

[00:11:37] Speaker 03:
They couldn't see his truck only because they parked

[00:11:40] Speaker 03:
at the neighbor's top.

[00:11:42] Speaker 03:
He couldn't have foreseen that.

[00:11:47] Speaker 03:
He locked his front door.

[00:11:48] Speaker 03:
If he's trying to get them to come over to have a confrontation, why would he do that?

[00:11:57] Speaker 03:
There's so many problems with the theory that it shouldn't be accepted beyond a reasonable doubt.

[00:12:07] Speaker 03:
I have three minutes left.

[00:12:09] Speaker 03:
May I reserve that time?

[00:12:12] Speaker 03:
Sure.

[00:12:19] Speaker 00:
Thank you.

[00:12:20] Speaker 00:
May it please the court?

[00:12:21] Speaker 00:
My name is Linda Epperly.

[00:12:22] Speaker 00:
I represent the United States in this case.

[00:12:27] Speaker 00:
Due to the number of allegations of error and the court's apparent familiarity with the facts of this case, I'd just like to

[00:12:37] Speaker 00:
address quickly a couple of things that were raised in your questions with opposing counsel.

[00:12:43] Speaker 00:
First, we'd like to point out that there may have been testimony that the victim owned a gun.

[00:12:49] Speaker 00:
I think he oftentimes wore camo.

[00:12:51] Speaker 00:
He hunted, that kind of thing.

[00:12:53] Speaker 00:
But there was no testimony that the victim ever brandished or pointed a firearm at the defendant.

[00:13:01] Speaker 00:
And granted, these two 50-year-old men fighting over the 20-year-old woman, both engaged in

[00:13:07] Speaker 00:
you know, some pretty questionable behavior back and forth.

[00:13:10] Speaker 00:
But while the defendant at times had pulled a gun before, there's no testimony the victim had ever brandished or pointed a gun at the defendant.

[00:13:21] Speaker 00:
Secondly, we would disagree that this was unquestionably a home invasion for all the reasons cited in the questions that Judge Carson just asked.

[00:13:32] Speaker 00:
I believe that... Nobody agreed with me, so we don't... I don't even know that I was right.

[00:13:38] Speaker 00:
It tracked with what I'm aware of from the record.

[00:13:42] Speaker 00:
I was not trial counsel, but in reviewing it, it seemed to me that there was certainly proof that he told them he was irritated with Ashton.

[00:13:51] Speaker 00:
Ashton told her to go get her stuff.

[00:13:55] Speaker 00:
Told her he was going somewhere else.

[00:13:58] Speaker 00:
And he may have later decided that no, he meant his truck.

[00:14:03] Speaker 00:
Well, that really doesn't make any sense since the truck was going with him leaving

[00:14:08] Speaker 00:
the girl there with no ride other than to ride with the victim.

[00:14:14] Speaker 00:
I believe that the testimony was that they had frequently used whatever tool it was they picked up a screwdriver or some sort of wedge to open that door because the lock messed up.

[00:14:30] Speaker 00:
That shouldn't have been a surprise.

[00:14:34] Speaker 04:
The

[00:14:37] Speaker 04:
Well, let me ask you this.

[00:14:38] Speaker 04:
I mean, to your knowledge, was there testimony in the record that the lock didn't work and that if you wanted to get in the house, you basically had to pry it open?

[00:14:47] Speaker 00:
I think there was testimony that sometimes it worked, sometimes not.

[00:14:50] Speaker 00:
In this case, I think there was testimony that this was one of those times it did not work.

[00:14:55] Speaker 00:
I believe there's somewhere else, and it may have been in her testimony.

[00:14:58] Speaker 00:
I don't remember if it's Director Cross, where she indicated she didn't have her key.

[00:15:04] Speaker 00:
But I think there's

[00:15:07] Speaker 00:
There is evidence, and I unfortunately cannot give you a citation, that this was something they did.

[00:15:12] Speaker 00:
I mean, when they got up to the door and it was locked and they couldn't get it open, they didn't have to go searching around this entire property to find the tool.

[00:15:20] Speaker 00:
It was right there because they used it frequently.

[00:15:27] Speaker 00:
As to the sufficiency of the evidence, granted, there was bad behavior on both sides here.

[00:15:37] Speaker 00:
there are therefore inferences that can be drawn on both sides here.

[00:15:42] Speaker 00:
But this is not a case like Goldsbury where there were two competing inferences that were plain and clear and couldn't both be true.

[00:15:52] Speaker 00:
In that case, either the father crawled in bed with, or either the father sexually molested his daughter in bed knowing what he was doing, or the daughter who came into the bed in the night

[00:16:05] Speaker 00:
was mistaken by that father for his wife because they were basically the same size.

[00:16:10] Speaker 00:
So either it was an accident or it was not.

[00:16:13] Speaker 00:
There was no proof that could give the jury any assistance really in deciding which of those was true.

[00:16:18] Speaker 00:
And under that case, the court decided that that put it all in equipoise and the court went from there.

[00:16:27] Speaker 00:
Here, we don't have that situation.

[00:16:29] Speaker 00:
Yes, there are different inferences, but they're not.

[00:16:32] Speaker 00:
one or the other as clear cut as they were in that case.

[00:16:37] Speaker 00:
Here, there were inferences that were logical, that were within, I believe the court refers to it as probabilistic reasoning, something to that nature.

[00:16:51] Speaker 00:
Those inferences here supported guilt and supported it clearly enough that it removes it from the situation in

[00:17:00] Speaker 00:
It was more like the situation, I think it was in the Smith case, where there were different inferences, but there was an ability to make a decision between them and make a reasonable decision.

[00:17:13] Speaker 00:
Finally, as to the bad acts that were mentioned, we'd ask the court to pay particular attention to the 23-page order that the magistrate judge entered in deciding all the types of other

[00:17:28] Speaker 00:
crimes evidence that could come in or other bad acts and what was not allowed.

[00:17:34] Speaker 00:
We believe that the court struck a reasoned result in looking at all of the history of this situation that truly the jury needed to hear in order to understand what had happened.

[00:17:47] Speaker 00:
And the inference and the pattern toward guilt laid out by the government was supported by the evidence and supported here by

[00:17:57] Speaker 00:
people outside these three people.

[00:17:59] Speaker 00:
There were neighbors.

[00:18:01] Speaker 00:
There were other friends.

[00:18:02] Speaker 00:
There was the man who actually owned the shotgun who had loaned it to another friend that testified that the defendant had borrowed it from him that day or the day before.

[00:18:15] Speaker 00:
There's certainly evidence to support this verdict, evidence that was sufficient.

[00:18:19] Speaker 00:
And again, while there was

[00:18:25] Speaker 00:
strong arguments made in the closing argument here.

[00:18:28] Speaker 00:
They did not amount to prosecutorial misconduct.

[00:18:31] Speaker 00:
We believe that the sentence was not unreasonable after the government moved to dismiss one of those counts.

[00:18:40] Speaker 00:
And for those reasons, unless there are further questions, we'd ask the court to affirm.

[00:18:44] Speaker 02:
Counsel, could I ask you, what was the evidence that Mr. Beard was an Indian at the time of the offense?

[00:18:53] Speaker 02:
Because you've conceded that Exhibit 86 is out, right?

[00:19:01] Speaker 00:
Was that the CDIB, I mean the letter from the Tribal Registrar?

[00:19:06] Speaker 02:
Yes, but 85 is in.

[00:19:08] Speaker 02:
So tell me why you've got enough.

[00:19:12] Speaker 00:
Here's why I believe that we have enough.

[00:19:14] Speaker 00:
The Hattley case, Your Honor, in addition to establishing that we needed to prove

[00:19:19] Speaker 00:
Indian status at the time of the offense.

[00:19:22] Speaker 00:
And that case was just decided last September, so after this trial.

[00:19:26] Speaker 00:
And that had not been how, I think, any of the litigants usually viewed that question.

[00:19:34] Speaker 00:
In that case, the court said a letter from the tribe, from a register, it's not going to be sufficient.

[00:19:42] Speaker 00:
And under hearsay rules, it's created for litigation, things of that nature.

[00:19:46] Speaker 00:
But the court went on to say, here are the things that you could use.

[00:19:50] Speaker 00:
The court explained that the court could look to CDIB cards, which are self-authenticating, that may be admitted without additional evidence, that we could look to tribal documents containing that information, like a registration card or a document bearing a tribal seal rather than a federal one.

[00:20:15] Speaker 00:
Here, it's my understanding that the court had before it

[00:20:19] Speaker 00:
the CDIB determination by the Bureau of Indian Affairs, the defendant's own testimony that he was an Indian, his tribal ID card, the evidence from the Cherokee Nation's database, which is how they keep their records, of defendant's citizenship and citizenship number, and all of it.

[00:20:42] Speaker 02:
Is the tribal ID card part of Exhibit 85?

[00:20:46] Speaker 00:
I cannot tell you whether it's part of Exhibit 85.

[00:20:49] Speaker 00:
I can tell you that I believe it was introduced.

[00:20:52] Speaker 00:
I know that the Cherokees do such a card.

[00:21:00] Speaker 00:
I may be mistaken, but I believe that it was introduced.

[00:21:11] Speaker 00:
And I'll confess that I'm relying mainly on my memory of the brief here as opposed to that exhibit.

[00:21:17] Speaker 00:
At any rate, even if it was not there, I believe that the testimony here was sufficient to prove that he was an Indian and would be sufficient to meet that test.

[00:21:27] Speaker 00:
As to what should be involved in the test and whether there should be proof of tribal registration in addition to that individual defendant's Indian status, et cetera, we would ask this court to take notice that

[00:21:44] Speaker 00:
There were two cases where I think one from our office and one from the Northern District where we are asking this court to take a second look at the Prentiss case.

[00:21:54] Speaker 00:
And I believe that the public defender's office filed responses on both of those yesterday.

[00:22:00] Speaker 00:
I haven't had time to look at it.

[00:22:02] Speaker 02:
But that had to do with proving non-Indian status.

[00:22:05] Speaker 02:
And here we're proving Indian status.

[00:22:08] Speaker 02:
So we need the blood element and the recognition element, correct?

[00:22:13] Speaker 00:
Right.

[00:22:13] Speaker 00:
And while it is 1152 versus 1153, many of those considerations may impact what the court does here if the court believes that there's a question about those documents.

[00:22:26] Speaker 00:
If there's nothing further, we'd ask the court to affirm.

[00:22:29] Speaker 02:
Thank you, counsel.

[00:22:33] Speaker 02:
Rebuttal?

[00:22:38] Speaker 03:
Your Honor, it's

[00:22:40] Speaker 03:
I would ask you to really look at Exhibits 194 and Exhibit 155.

[00:22:48] Speaker 03:
And you can also look at Defendants Exhibit 3, which is just an aerial photo.

[00:22:55] Speaker 03:
This is a rare case where everything that happened is on video.

[00:23:00] Speaker 03:
And what you will see in those is two people who clearly are not invited parking at an adjacent property.

[00:23:09] Speaker 03:
going across the field and ripping off the front door of my client's house.

[00:23:16] Speaker 03:
If the idea is that's how people usually got into the house, then you had to have two people to get into the house that way.

[00:23:29] Speaker 03:
This was a home invasion.

[00:23:30] Speaker 03:
They did not think they were invited over to do what they did.

[00:23:42] Speaker 03:
On the location of the truck, the question is, did he hide the truck?

[00:23:49] Speaker 03:
And the evidence is the truck would have been visible had they used the driveway.

[00:23:57] Speaker 03:
Look at government exhibits 36 and 46.

[00:24:03] Speaker 03:
You can see in the background the front of the trailer.

[00:24:09] Speaker 03:
So anybody who pulled in front of the trailer could see the truck.

[00:24:12] Speaker 03:
if they had their headlights on.

[00:24:18] Speaker 03:
We have a complicated theory that ultimately isn't supported by the evidence and doesn't make sense for this trap notion.

[00:24:29] Speaker 01:
There were two shotgun shots, is that right?

[00:24:31] Speaker 03:
Correct.

[00:24:36] Speaker 01:
Even if it were a home invasion, do you think it

[00:24:38] Speaker 01:
Supports certainly you think it supports the second shot, but even the first one The second shot outside they were out when all they were in the house The the door ripped open and then the shooting occurred.

[00:24:53] Speaker 03:
Yeah, but shooting when the victim was outside Yes The second shot the evidence is not established caused a death is another problem

[00:25:08] Speaker 03:
The medical examiner said, I don't know, I can't say he was alive, probably alive when the second shot happened.

[00:25:17] Speaker 03:
So that's an additional problem.

[00:25:22] Speaker 03:
If it's just that act, did it cause a death?

[00:25:27] Speaker 03:
The jury can't find that.

[00:25:30] Speaker 03:
And I'm out of time.

[00:25:33] Speaker 02:
Thank you, counsel.

[00:25:34] Speaker 02:
Thank you.

[00:25:35] Speaker 02:
The case is submitted.

[00:25:36] Speaker 02:
Council are excused.

[00:25:39] Speaker 02:
Thank you for the arguments.