[00:00:00] Speaker 05:
Okay, the next case this morning is United States versus Crowe, 24-1377.

[00:00:11] Speaker 05:
Council for Appellant, if you would make your appearance and proceed.

[00:00:17] Speaker 04:
May it please the court.

[00:00:18] Speaker 04:
My name is Howard Pincus from the Federal Public Defender and I represent Mitchell Crowe.

[00:00:24] Speaker 04:
At trial, the prosecution's expert offered a previously undisclosed opinion that was a global criticism of the defense experts pre-trial evaluation of Mr. Crowe and his related conclusion that Mr. Crowe suffered from sexsomnia, the key contested issue at trial.

[00:00:41] Speaker 04:
The district court denied defense counsel any time to meet with his expert so he could effectively counter this new opinion.

[00:00:48] Speaker 05:
What is what is any time, Mr. Pincus, the district court gave him 20 minutes to confer a total to address this issue.

[00:00:58] Speaker 05:
Why?

[00:00:59] Speaker 05:
So it wasn't any time.

[00:01:01] Speaker 04:
I think you're referring to the time after Dr. Borman's direct testimony, Ron.

[00:01:06] Speaker 04:
Is that correct?

[00:01:06] Speaker 05:
Yes.

[00:01:08] Speaker 04:
Yes.

[00:01:08] Speaker 04:
At that point,

[00:01:09] Speaker 04:
the court instructed Dr. Boardman to meet with defense counsel.

[00:01:14] Speaker 04:
And the reason was because although by that point, defense counsel knew what opinions Dr. Boardman would testify to, he already testified indirect, he didn't know the reasons and bases for those opinions, which the rule also requires to be disclosed.

[00:01:30] Speaker 04:
And that's essential for him to then meet with his expert

[00:01:36] Speaker 04:
to be able to counter that testimony on cross-examination.

[00:01:40] Speaker 04:
Understood.

[00:01:40] Speaker 05:
But let me hit the pause button for a second.

[00:01:42] Speaker 05:
It was my understanding that, yes, the district court ultimately allotted 20 minutes, period.

[00:01:49] Speaker 05:
In other words, you have 20 minutes to meet with the government's expert and then do whatever you're going to do with your own expert.

[00:01:57] Speaker 05:
In other words, there was an allotment of 20 minutes.

[00:01:59] Speaker 05:
How that time was spent was up to the defense counsel, was it not?

[00:02:04] Speaker 04:
In some sense, yes, but the court said, I give you this time, I'm instructing him to meet with you.

[00:02:10] Speaker 04:
And he needed that time to find out what the basis of the opinions that the new opinions that were offered were.

[00:02:17] Speaker 04:
And the government has never faulted the defense counsel for taking that time to meet with Dr. Vornman.

[00:02:26] Speaker 04:
Right after he did so, he said to the court, I need more time to prepare.

[00:02:31] Speaker 04:
The court said denied.

[00:02:32] Speaker 04:
And defense counsel then said, I spent 15 minutes.

[00:02:37] Speaker 04:
I first went to the bathroom.

[00:02:38] Speaker 04:
I spent 15 minutes meeting with Dr. Bornman.

[00:02:41] Speaker 04:
And then I went to meet with Dr. Koshida, our expert.

[00:02:44] Speaker 04:
and I only had 30 seconds to do so before I came back into court.

[00:02:48] Speaker 05:
Well, that talks again about a total amount of time which was up to the defendant to use, and he asked for 30 minutes, at a minimum 30 minutes.

[00:02:58] Speaker 05:
Well, the district court gave him 20 minutes.

[00:03:02] Speaker 05:
Where's an abuse of discretion when the defense lawyer himself

[00:03:06] Speaker 05:
seemed to appear that he would settle for 30 minutes to have this post testimony of Dr. Borman and to be able to know the opinions and be able to evaluate all of that.

[00:03:17] Speaker 05:
30 minutes was on the table, was it not?

[00:03:19] Speaker 04:
30 minutes was, although he said 30 minutes to an hour, because of course he couldn't know what exactly Dr. Borman would testify to, and he couldn't know the reason and basis for those opinions.

[00:03:30] Speaker 04:
This was a major opinion about malingering

[00:03:34] Speaker 04:
that was directly countering the entire report and pretrial evaluation that Dr. Koshida conducted of Mr. Crowe and in reaching his conclusion of sexsomnia.

[00:03:47] Speaker 04:
So this was something that should have been disclosed before trial.

[00:03:51] Speaker 04:
It's disclosed at trial, defense counsel says,

[00:03:54] Speaker 04:
look, there's a lot here.

[00:03:55] Speaker 04:
I need at least 30 minutes to an hour.

[00:03:58] Speaker 04:
And the court recognized originally that he will need to speak with Dr. Kushida.

[00:04:03] Speaker 04:
He then gives him time after the direct says, go speak with Dr. Borman.

[00:04:08] Speaker 04:
And that's because he had to know what the basis for the opinions were, not just what the opinions were.

[00:04:15] Speaker 04:
And that's OK.

[00:04:15] Speaker 05:
Well, putting a fine point, putting a fine point on it, the district court

[00:04:20] Speaker 05:
The defense lawyer says, I need 30 minutes to an hour.

[00:04:23] Speaker 05:
District court says, no, I'll give you 20 minutes.

[00:04:26] Speaker 05:
If one talks about that exchange, it seems to me, at minimum 30 minutes, we're talking about a 10 minute gap.

[00:04:36] Speaker 05:
Where does an abuse of discretion come in in that?

[00:04:39] Speaker 05:
And let me amplify that a little bit.

[00:04:42] Speaker 05:
At one point, is it not in fact the case that the defense counsel said, well, when the district court said, well, what do you want?

[00:04:48] Speaker 05:
Well, I want this typewritten.

[00:04:50] Speaker 05:
Well, okay, so I mean, why wasn't this a moving target as to what the defense lawyer actually wanted?

[00:04:56] Speaker 04:
It wasn't moving target because he said, I want these typed up so I can know what the opinions are.

[00:05:02] Speaker 04:
That was initially before he knew what Dr. Borman was going to testify to.

[00:05:07] Speaker 04:
And even the government said in introducing the topic that these are more than he could encapsulate in just a quick summary.

[00:05:15] Speaker 04:
And so he gets these notes and he says, these are just notes, Your Honor.

[00:05:18] Speaker 04:
These are not opinions.

[00:05:20] Speaker 04:
And I cannot be expected to infer opinions from these notes.

[00:05:24] Speaker 04:
It was critical for him to know what Dr. Bourne would testify to and the basis for them, his opinion, so that he could then meet with Dr. Koshida.

[00:05:34] Speaker 04:
I mean, this is a case that had been going on for years.

[00:05:37] Speaker 04:
The sex hominy was the key issue at trial.

[00:05:41] Speaker 04:
The expert testimony was the major part of a week-long trial.

[00:05:46] Speaker 04:
And the government introduces new opinions that were directly responsive to the defense report and should have been introduced before trial.

[00:05:56] Speaker 04:
The defense counsel is only asking for the time to meet with Dr. Koshida.

[00:06:00] Speaker 02:
I'm sorry, Mr. Figgis, I didn't mean to cut you off.

[00:06:03] Speaker 02:
But I want to drill down on a couple of times that you mentioned that this was

[00:06:10] Speaker 02:
the government expert pushing back on information that was key in Dr. Kishida's report.

[00:06:18] Speaker 02:
And I'll just tell you sort of what my trepidation is before we get to the issue that the chief is asking you about, and that is whether or not there was ever a violation of Rule 16C-1 in the first place, whether there was a duty to disclose.

[00:06:34] Speaker 02:
The two items that you've mentioned in your briefing,

[00:06:38] Speaker 02:
is Dr. Kushida, the government expert upon Elmer Buttle, that Dr. Kushida had not accounted for the possibility of malingering and that further testing or a forensic scientist psychiatrist would be necessary to determine malingering in the forensic context.

[00:06:59] Speaker 02:
Well, in Dr. Kushida's report,

[00:07:03] Speaker 02:
He never opines because he couldn't.

[00:07:05] Speaker 02:
Dr. Judge Moore prohibited it.

[00:07:08] Speaker 02:
All he said was that the conduct that Mr. Crowe had identified was consistent with sexsomnia.

[00:07:21] Speaker 02:
And he never opined, because Judge Moore precluded it, of him ever saying that he was or was not actually malingering.

[00:07:34] Speaker 02:
And so you have this argument, and I follow it, that, well, there's cross-examination about this is a large secondary gain because he's going to face the potential of acquittal.

[00:07:49] Speaker 02:
And then on rebuttal, understandably, defense counsel is going to

[00:07:58] Speaker 02:
do what defense counsel does, and that is to say, well, but you didn't find any malingering.

[00:08:05] Speaker 02:
But all of that, for whatever reason, I'm not faulting it, but none of that was in Dr. Kishida's report.

[00:08:14] Speaker 02:
And so all rule 16 C1GI requires is that the government in identifying the pre-trial disclosure for rebuttal testimony

[00:08:27] Speaker 02:
is a rebuttal testimony that the defendant has timely disclosed under B1C.

[00:08:35] Speaker 02:
Dr. Kishida's report never has an opinion one way or the other on whether there was actual malingering or the necessity of testing or how one determines malingering.

[00:08:47] Speaker 02:
He never opined about malingering.

[00:08:50] Speaker 02:
I have a question about whether there was an antecedent violation of Rule 16C1GI

[00:08:57] Speaker 02:
before we get into the issue that Judge Holmes is inquiring about.

[00:09:02] Speaker 04:
Well, first of all, what Judge Moore, what district court wanted to avoid was commenting on the credibility of witnesses on the stand.

[00:09:11] Speaker 01:
Sure.

[00:09:11] Speaker 04:
And he was very clear about that.

[00:09:13] Speaker 04:
And that's why he said to defense counsel, you ask him whether when he was, when you interviewed him, was he malingering?

[00:09:22] Speaker 04:
That question was OK.

[00:09:24] Speaker 04:
So that's not a problem.

[00:09:26] Speaker 04:
In terms of the report itself, Dr. Kushida is saying, I've concluded that his actions are consistent with sex hominidia.

[00:09:35] Speaker 04:
a ready counter to that opinion is that Dr. Koshida didn't account for the possibility that Mr. Crowe was malingering.

[00:09:47] Speaker 04:
And in fact, malingering is in Dr. Barnum's report.

[00:09:51] Speaker 04:
It's just in a process stage of the report.

[00:09:55] Speaker 02:
Yeah, but that's my point, Mr. Pinkerton.

[00:09:57] Speaker 02:
I don't mean to argue with you, but I do want to elucidate my question.

[00:10:02] Speaker 02:
So what I'm thinking

[00:10:04] Speaker 02:
And correct me, because disabuse me of this, is Dr. Warman discloses more than he needed to because he really didn't under 16C1GI, he didn't need to disclose even that, but he did.

[00:10:16] Speaker 04:
No, his opinion on malingering that's introduced at trial is a counter to the opinion of

[00:10:27] Speaker 04:
Dr. Kishida that the actions of Mr. Crowe were consistent with sex hominy.

[00:10:33] Speaker 04:
It was an overall global criticism of how Dr. Kishida conducted his pretrial evaluation and reached his conclusion.

[00:10:43] Speaker 04:
That is a counter to testimony, to the expected testimony of the defense expert.

[00:10:48] Speaker 04:
That's why it needed to be disclosed.

[00:10:50] Speaker 04:
He can't just hide the malingering aspect

[00:10:52] Speaker 04:
and introduced to the trial.

[00:10:54] Speaker 04:
And we know that's what happened because the prosecution on cross-examination of Dr. Koshida raised secondary gain, which everybody recognized and is recognized in Dr. Borman's report is

[00:11:11] Speaker 04:
a hallmark of malingering.

[00:11:13] Speaker 04:
So they're saying, you know, you didn't account for this, and then defense counsel makes explicit that we're talking about malingering, and then the government says, well, that's why we get to introduce that.

[00:11:24] Speaker 04:
That's wrong.

[00:11:25] Speaker 05:
Let me hit the pause button for a second.

[00:11:27] Speaker 05:
Aren't there two?

[00:11:28] Speaker 05:
And Judge Morris, did you have something?

[00:11:30] Speaker 05:
Yeah, I had some, but I kind of forgot what it was.

[00:11:34] Speaker 00:
No, go.

[00:11:34] Speaker 05:
Okay.

[00:11:35] Speaker ?:
Sorry.

[00:11:35] Speaker 05:
On Rule 16, I mean, aren't there two different discreet disclosure obligations?

[00:11:41] Speaker 05:
The one that I inferred that you were making that based upon the report, there was an obligation to do some sort of disclosure.

[00:11:48] Speaker 05:
And two, there's the question of what was a supplemental disclosure obligation of the government at the time Dr. Kishida testified?

[00:11:56] Speaker 05:
Am I following that correctly?

[00:11:57] Speaker 04:
Yes, we are saying that this was an obligation that arose pre-trial because it should have been in Dr. Bournman's initial report because it was a counter to the expected testimony of Dr. Qashida on its face.

[00:12:11] Speaker 05:
So you're not focusing, go ahead, Judge Moritz.

[00:12:14] Speaker 00:
Well, I just want to verify what you're saying is that he should have disclosed it sooner because Qashida's report, at least in the process stages, discussed malingering

[00:12:26] Speaker 00:
Sufficiently that any opinion that.

[00:12:31] Speaker 00:
That the government's expert had had about malingering.

[00:12:35] Speaker 00:
Should have been in its report or supplemented.

[00:12:39] Speaker 00:
Is that what you're saying?

[00:12:40] Speaker 04:
It's actually bornman's report that has in a process section malingering.

[00:12:44] Speaker 00:
Okay.

[00:12:44] Speaker 04:
I'm sorry is that it's the evaluation.

[00:12:46] Speaker 00:
We did address it.

[00:12:48] Speaker 04:
He just said, this is what we do for malingering.

[00:12:51] Speaker 04:
He had some rote statement about malingering a paragraph, but he never tied it to Dr. Koshida.

[00:12:57] Speaker 04:
And our point in terms of the pre-trial disclosure is that

[00:13:02] Speaker 04:
it went to the credibility of his evaluation of Mr. Crowe at the time, which was essential to his ultimate determination of sexsomnia.

[00:13:12] Speaker 04:
And that was something that a malingering, you didn't account for malingering, you needed to consult a forensic psychiatrist, that would have disabled the entire report of Dr. Koshida.

[00:13:22] Speaker 04:
And that's what happened in trial.

[00:13:24] Speaker 00:
Okay.

[00:13:24] Speaker 00:
Okay.

[00:13:25] Speaker 00:
And, but your real argument seems to be focused, and maybe I'm misunderstanding, not so much on that

[00:13:32] Speaker 00:
that this doctor didn't diagnose malingering or Casita didn't diagnose malingering, but that the state seems to be somehow saying that she wasn't qualified to diagnose malingering, that they needed a forensic expert.

[00:13:47] Speaker 04:
Dr. Borman is saying, which is nowhere in his report, you need to consult a forensic psychiatrist, otherwise your whole opinion can't be trusted.

[00:13:57] Speaker 00:
And that's why it was a new part of it, isn't it?

[00:14:00] Speaker 00:
I mean, isn't that really new part that that's a specific, I mean, that's that's taking it completely out of the realm of her, her ability as a as a as a physician or as an expert to diagnose malingering, which I presume most all physicians.

[00:14:15] Speaker 04:
Are you talking about Dr. Kashida?

[00:14:17] Speaker 00:
Yeah.

[00:14:17] Speaker 00:
I mean, isn't isn't diagnosing malingering part of any

[00:14:21] Speaker 00:
Any physicians or accounting for malingering?

[00:14:25] Speaker 04:
I mean, if he's if he's basing a large part of his opinion on what Mr. Crowe is saying, he's malingering is an obvious counter to that.

[00:14:35] Speaker 04:
And if it is, I don't know why.

[00:14:38] Speaker 05:
Why?

[00:14:38] Speaker 05:
I want to understand what you what the obligation is under the rule.

[00:14:43] Speaker 05:
I mean, and I also want to understand whether you're talking at all.

[00:14:47] Speaker 05:
You seem to be focusing entirely on the pretrial disclosure.

[00:14:51] Speaker 05:
I thought you were focusing all as well on the supplemental duty of the government.

[00:14:55] Speaker 05:
But as it relates to the pretrial disclosure, it was my understanding under the rule that the government only has to disclose opinions that its expert will put forward.

[00:15:06] Speaker 05:
I mean, and the idea that it has to anticipate natural retorts to what the

[00:15:13] Speaker 05:
what the defense lawyer is doing, where in the rule is that?

[00:15:18] Speaker 05:
And what authority do you have for this natural, and we're going to keep going Mr. Pinker, so let's, so where's the natural, where's the authority for that?

[00:15:28] Speaker 04:
But if the rule really, if you could really say, well, I didn't intend to introduce that to counter, you could hide a whole mess of stuff by not disclosing it.

[00:15:37] Speaker 05:
No, you couldn't because you still have a supplemental disclosure obligation if things do play out in the course of the trial, right?

[00:15:44] Speaker 04:
A supplemental disclosure is for when new material or evidence becomes, they become aware of new material or evidence.

[00:15:51] Speaker 04:
That's not this case.

[00:15:53] Speaker 04:
But even if it is a supplemental disclosure issue, then

[00:15:56] Speaker 04:
they still have to disclose not only the opinion, but the reason and basis for the opinion.

[00:16:01] Speaker 04:
And that's what Mr. Crow's counsel wanted to explore with Dr. Koshida.

[00:16:07] Speaker 04:
So even if you look at this as a valid supplemental, which it's not because everything was based on a pretrial evaluation known to the prosecution expert at that time, there's nothing new here.

[00:16:19] Speaker 05:
Okay, so this is helpful.

[00:16:21] Speaker 05:
You're not, hold on.

[00:16:22] Speaker 05:
So you're not saying

[00:16:24] Speaker 05:
You're saying that is not this case.

[00:16:27] Speaker 05:
This is not a supplemental disclosure case as you see it then.

[00:16:31] Speaker 05:
I don't think it is, but I think that even if you look at it that way, whoa, whoa, I'm not looking.

[00:16:36] Speaker 05:
I'm taking what you do now.

[00:16:37] Speaker 05:
I'm not trying to make it anything.

[00:16:39] Speaker 04:
So if you're not saying either way, there's there's a rule 16 violation.

[00:16:43] Speaker 05:
Well, well, if your focus is on pretrial disclosure, I ask you a specific question.

[00:16:50] Speaker 05:
What was your best authority that the government has to anticipate has to offer natural retorts?

[00:16:56] Speaker 05:
in the context of its disclosure obligation pre-trial.

[00:17:02] Speaker 05:
That was certainly not my understanding of what the rule requires.

[00:17:05] Speaker 05:
So talk to me about what authority supports that.

[00:17:09] Speaker 04:
The rule requires testimony that will counter the opinion that's been disclosed by the defense.

[00:17:15] Speaker 05:
And to Judge Baccarat's point, the defense never spoke about malingering.

[00:17:21] Speaker 05:
And if the defense never speaks about malingering, why do you have to say anything to counter it?

[00:17:30] Speaker 04:
Because the defense expert is relying on what Mr. Crowe told him.

[00:17:37] Speaker 04:
That means he is accepting that as a basis for his opinion.

[00:17:42] Speaker 04:
The notion that he, that Mr. Crowe is malingering or that Dr. Koshida needed to do more to account for malingering is a counter to that testimony.

[00:17:51] Speaker 02:
Can I push back on that?

[00:17:52] Speaker 04:
That's where the obligation arises.

[00:17:54] Speaker 02:
I'm sorry, uh, Ms.

[00:17:55] Speaker 02:
Speaker.

[00:17:56] Speaker 02:
I don't think you're pretty, pretty good, but can I, uh, I'll just be candid with you.

[00:18:01] Speaker 02:
I'll just tell you, I think you argue, argue the point extremely well as you always do, but I do want to tell you what my reservation is about what you just said and then

[00:18:13] Speaker 02:
most importantly, give you an opportunity to tell me where I'm wrong, because I might very well be.

[00:18:17] Speaker 02:
It seems to me that there's two possibilities that Dr. Kishida could have made, that I am relying, just as you indicated, on what Mr. Crowe said.

[00:18:28] Speaker 02:
I think that

[00:18:31] Speaker 02:
What you said, Mr. Crowe, is plausible that you went into J.A.'

[00:18:37] Speaker 02:
's room, notwithstanding the multiplicity of steps in that what you described is so consistent with sexsomnia.

[00:18:49] Speaker 02:
And as you said, I don't think you're malingering.

[00:18:55] Speaker 02:
I don't think that this is a function of secondary gain.

[00:18:57] Speaker 02:
I believe it.

[00:18:59] Speaker 02:
But let me just kind of read to you a couple of passages from Dr. Kushida's report, because I think he's entirely consistent that he's not doing that, ever.

[00:19:09] Speaker 02:
He's saying his actions could have been the result of him experiencing a non-rapid eye movement-related parasomnia, sexomnia, that's on 268, page 275.

[00:19:22] Speaker 02:
His actions could have been the result of him experiencing a sexomnia,

[00:19:28] Speaker 02:
page 278.

[00:19:33] Speaker 02:
Let's see.

[00:19:35] Speaker 02:
It is my opinion that his actions could have been the result of him experiencing a non-Arabid eye movement-related parasomnia.

[00:19:43] Speaker 02:
So it seems to me that Dr. Kushida is very careful in his report

[00:19:47] Speaker 02:
to confine what he's opining about.

[00:19:50] Speaker 02:
That's why I don't really know why cross-examination about whether or not the defendant was malingering really has anything to do with the actual opinions that were disclosed by Dr. Koshida, because I don't think he's saying anything to say that what Mr. Proves said is plausible or that he's not malingering, at least in his report.

[00:20:12] Speaker 02:
Now, that morphs into the testimony

[00:20:15] Speaker 02:
when he's cross-examined about secondary gain and then on redirect, then he does say that I don't think he's malingering.

[00:20:23] Speaker 02:
But none of that even is remotely suggested in my reading of Dr. Koshida's report, in the report itself.

[00:20:31] Speaker 02:
But that's a long-winded way of saying, you study this really well.

[00:20:38] Speaker 02:
You're quite a good lawyer.

[00:20:40] Speaker 02:
Tell me where I'm wrong.

[00:20:42] Speaker 04:
Well, first of all, sexsomnia is engaging in sexual acts while asleep and without awareness.

[00:20:48] Speaker 04:
So Mr. Crowe is not talking about specific incidents because he has no recollection of ever having sex with J.A.

[00:20:57] Speaker 04:
The part that Dr. Koshida is relying on is all his reports of his sleep history, his family history, other times when he has had

[00:21:10] Speaker 04:
sex unknowingly with bed partners, all of that history, and that is used by Dr. Koshida to reach the ultimate conclusion of sexsomnia.

[00:21:20] Speaker 04:
And that's known at the time, and that's what he is reciting for pages.

[00:21:26] Speaker 04:
And that's where Dr. Bornman, the government's expert, is saying, you didn't sufficiently account for malingering.

[00:21:32] Speaker 04:
Well, that is something that countered what Dr. Kushida did, his overall approach, and ultimately his conclusion of sexsomnia.

[00:21:41] Speaker 04:
And that's why it should have been disclosed before trial.

[00:21:44] Speaker 04:
Now, back to Judge Holmes' point.

[00:21:47] Speaker 04:
there's nothing new that came out in that regard because this is all tied to the pretrial evaluation of Mr. Crowe.

[00:21:56] Speaker 04:
So it's not new material or evidence became aware of that requires supplementation.

[00:22:00] Speaker 04:
But even if there should, even if this is supplementation, it needed to at least, the rule doesn't say what supplementation requires, but the rule itself is designed to give you an effective, a party, an effective opportunity to cross-examine.

[00:22:14] Speaker 04:
And that requires at a minimum,

[00:22:16] Speaker 04:
knowing what the opinion are and knowing what the reason and basis for those opinions are, which the 1993 advisory committee notes that is perhaps the most important part of the rule.

[00:22:26] Speaker 04:
So even if this is a supplementation, the district court should have given Mr. Crowe time to meet his counsel, time to meet with Dr. Cushido.

[00:22:36] Speaker 04:
Once he learned from Dr. Borman, which he did on meeting with him, the reasons and basis

[00:22:42] Speaker 04:
for those opinions.

[00:22:44] Speaker 04:
And that is the flaw here.

[00:22:46] Speaker 04:
So regardless of whether this is a supplementation with maybe incomplete and not

[00:22:55] Speaker 04:
violating the rule, maybe violating the rule in that context, but even without a violation of the rule, when new stuff comes up at trial, the other party should be entitled to what the rule is designed to do, which is give an effective opportunity to cross by knowing the opinions and the bases, reasons and bases for them.

[00:23:13] Speaker 04:
And that was only something that defense counsel could know after speaking with Dr. Borman.

[00:23:20] Speaker 04:
From his direct testimony, he knew the

[00:23:23] Speaker 04:
opinions.

[00:23:24] Speaker 04:
And the notes by that point were less relevant, obviously, because Dr. Borman had testified.

[00:23:27] Speaker 04:
But what he didn't know and what he needed to know to effectively cross-examine were the reasons and bases for them.

[00:23:33] Speaker 04:
And that's why I'm saying that the court gave him no time effectively to meet with Dr. Kushida after meeting with Dr. Borman.

[00:23:43] Speaker 04:
And that's what was essential here.

[00:23:45] Speaker 04:
And that's why it was an abuse of discretion, a clear error of judgment in not allowing that time.

[00:23:50] Speaker 04:
All right.

[00:23:52] Speaker 04:
For the reason stated in the reply brief, we'd ask the court vacate all the convictions and remand for new trial or at a minimum vacate counts one and two and remand for new trial.

[00:24:02] Speaker 04:
Thank you.

[00:24:03] Speaker 05:
Thank you.

[00:24:05] Speaker 05:
We'll hear from the government.

[00:24:10] Speaker 03:
Morning, Your Honors, and may it please the court, Rajiv Mohan for the United States.

[00:24:15] Speaker 03:
I would like to start with Mr. Pincus's characterization of this case as one of pretrial disclosure, because I think it goes both to preservation and the standard of review.

[00:24:26] Speaker 03:
And that's because I don't think there was any argument below that this malingering opinion should have been raised before trial.

[00:24:33] Speaker 03:
Indeed, I don't think there was much, if at all, discussion of this malingering opinion period.

[00:24:38] Speaker 03:
direct the court to volume 5, page 707 of the record, where Judge Moore asked counsel point blank, what has Dr. Boardman said that was new that you couldn't have anticipated?

[00:24:51] Speaker 03:
And counsel did not express this malingering opinion.

[00:24:56] Speaker 03:
And I think that shows both a lack of preservation and a lack of an abuse of discretion, because the district court could not have abused this discretion based on information that was never presented to it.

[00:25:08] Speaker 02:
Well, can I push back on a challenge predicated on preservation?

[00:25:15] Speaker 02:
The prosecutor before lunch says, we have an disclosure issue.

[00:25:20] Speaker 02:
The prosecutor seems to be assuming that there was a violation of Rule 16.

[00:25:26] Speaker 02:
You know, he proffers the handwritten notes of Dr. Borman as a solution.

[00:25:35] Speaker 02:
Judge Moore never questions whether or not there was an antecedent violation of Rule 16 itself or the pretrial disclosure.

[00:25:47] Speaker 02:
All he is focusing on, understandably, is, well, what do we do?

[00:25:54] Speaker 02:
You know, here we are.

[00:25:56] Speaker 02:
uh, don't want the jury to continue to wait.

[00:25:59] Speaker 02:
And so, uh, this is not, and I don't even think in your briefing, you have argued on your appellate briefing, you've argued, uh, denied that there was an antecedent violation of rule 16 in the pretrial disclosure.

[00:26:12] Speaker 02:
You argue that it's satisfied rule 16 C, uh, as a supplemental disclosure.

[00:26:19] Speaker 02:
But would we be, uh, if we were to reject Mr. Pinker's argument based on

[00:26:26] Speaker 02:
the lack of antecedent violation of Rule 16, are we in effect putting ourselves in the role of advocates for the government in affirming based on an antecedent defect in Mr. Pinker's argument that you have not questioned and Judge Morton never questioned?

[00:26:49] Speaker 03:
So a few responses, Your Honor.

[00:26:51] Speaker 03:
First, I don't think the prosecutor below conceded an error.

[00:26:54] Speaker 03:
I think to raise a disclosure issue is not the same thing as conceding a disclosure error.

[00:26:59] Speaker 03:
And to that point, I would note that when counsel objected to Dr. Boardman's testimony,

[00:27:07] Speaker 03:
on direct examination about malingering, Judge Moore overruled that objection.

[00:27:11] Speaker 03:
So I think that the fair reading of that is that Judge Moore did not find a Rule 16 violation.

[00:27:18] Speaker 03:
As to our position, let me try and clarify it a little bit.

[00:27:22] Speaker 03:
We do not think there was a obligation to disclose this malingering opinion before trial and that therefore it was a valid supplemental disclosure under Rule 16C.

[00:27:35] Speaker 03:
And the reason why is I go back to what was discussed with Mr. Pincus about how the rule talks about testimony to counter testimony that the defendant has timely disclosed.

[00:27:48] Speaker 03:
And I'd like to expand on

[00:27:52] Speaker 00:
Sorry, I just want to, something that the judge kept focusing on to me, Judge Moore's biggest concern didn't seem to be at all about whether there'd been a disclosure violation.

[00:28:05] Speaker 00:
He just really didn't care what the argument was.

[00:28:08] Speaker 00:
His point was you basically brought this on yourself, the parties, by agreeing to allow your experts to be present when the other expert

[00:28:18] Speaker 00:
was testifying.

[00:28:19] Speaker 00:
You didn't sequester them.

[00:28:21] Speaker 00:
So he said more than once, too bad for you all.

[00:28:25] Speaker 00:
This was a decision you made.

[00:28:26] Speaker 00:
You could have predicted this would happen.

[00:28:28] Speaker 00:
To me, the judge didn't pay any attention to the disclosure issue.

[00:28:33] Speaker 00:
He just refused to.

[00:28:35] Speaker 00:
And that's problematic to me because I, I noticed too that the prosecutor never seemed to suggest that there had been a proper disclosure.

[00:28:47] Speaker 00:
And in fact, seemed very concerned about getting these notes and getting them to him and getting him a little bit of time to respond or prepare.

[00:28:59] Speaker 03:
So I do think Judge Moore appropriately considered that this was foreseeable given the trial process that the parties had agreed to.

[00:29:09] Speaker 00:
Why is that a consideration?

[00:29:10] Speaker 00:
If the defendant's alleging a disclosure violation, why does it matter whether

[00:29:16] Speaker 00:
This was reasonably foreseeable, which seemed to be the judge's main focus.

[00:29:20] Speaker 00:
Why not just look at all the facts that we've been talking about here and determine whether there was a disclosure violation, which the judge never did, despite the defense counsel begging him basically to help.

[00:29:37] Speaker 03:
Well, I would push back on that a little bit because I think, you know, in the discussion after the 20 minute recess and this is at pages 705 to 708 or so of volume five of the record, you know, Judge Moore does talk about the trial process, but he also asked counsel, hey,

[00:29:55] Speaker 03:
What was new here?

[00:29:56] Speaker 03:
What was such a surprise that you couldn't have anticipated?

[00:29:58] Speaker 03:
And counsel does not mention this malingering opinion.

[00:30:02] Speaker 03:
And that's even when Judge Moore gives him a final opportunity to make whatever record he wanted.

[00:30:08] Speaker 03:
And I think in that context,

[00:30:10] Speaker 03:
Judge Moore appropriately thought that no more time was needed.

[00:30:15] Speaker 03:
I would like to go back to this question of a Rule 16 violation and expand on it a little bit in terms of what testimony Mr. Crowe timely disclosed.

[00:30:26] Speaker 03:
with respect to Dr. Kushida.

[00:30:28] Speaker 03:
And I think that if you look at what Mr. Crowe elicited from Dr. Kushida on redirect, and this is pages 600 to 602 or so of volume five, it went beyond what I think could be reasonably inferred from the pretrial disclosure, because you have not only an opinion that

[00:30:47] Speaker 03:
Dr. Kushida did not think Mr. Crowe was malingering, but also testimony in support of that based on Dr. Kushida's experience assessing patients and how adept he was at sussing out malingering.

[00:30:59] Speaker 03:
And I don't think any of that was included in the pre-trial disclosure.

[00:31:05] Speaker 03:
even if the court disagrees and thinks that this issue was foreseeable or obvious or something along those lines, I do think that cuts against Mr. Crowe when it comes to any prejudice and whether a further continuance was needed in that regard.

[00:31:22] Speaker 03:
And that's because it refutes the notion that he had no reason to prepare with Dr. Kushida about this issue.

[00:31:28] Speaker 03:
And there are a couple of other points.

[00:31:30] Speaker 05:
No, let me be clear what you're saying.

[00:31:32] Speaker 05:
He had no reason to prepare with Dr. Koshida about the issue on the prejudice point.

[00:31:37] Speaker 05:
Would you run that by me again?

[00:31:39] Speaker 05:
I wasn't clear what you were saying there.

[00:31:41] Speaker 03:
So as I understand Mr. Crowe's argument, he seems to be saying that he was prejudiced by this late disclosure because had it been disclosed before trial, he could have prepared with Dr. Koshida.

[00:31:53] Speaker 03:
And because it wasn't disclosed before trial, he had no reason to.

[00:31:57] Speaker 03:
And I think if this issue is as obvious as Mr. Crowe suggests, it undercuts that argument.

[00:32:04] Speaker 05:
Oh, because if it is a natural retort to Dr. Koshida's report, he also should have anticipated the natural retort.

[00:32:11] Speaker 05:
Is that what you're saying?

[00:32:12] Speaker 03:
Yes.

[00:32:13] Speaker 05:
OK, let me fast forward.

[00:32:15] Speaker 05:
Let's just move beyond the pretrial disclosure issue and focus for a second on viewing this through the prism of a supplemental Rule 16

[00:32:26] Speaker 05:
Disclosure okay so the the testimony takes place government council comes forward and and let's assume for whatever reason it does put us in a new terrain and therefore government council comes forward with this why in the world is exhibit nine inadequate

[00:32:44] Speaker 05:
satisfactory basis to disclose in a supplemental disclosure context.

[00:32:51] Speaker 05:
I mean, it's a bunch of scribblings, which you would take some expert anthropologists to figure out what the heck is going on.

[00:32:59] Speaker 05:
And so why is that sufficient for the government to discharge its Rule 16C obligation?

[00:33:07] Speaker 03:
So my first reaction when I saw this was that it looked like a bunch of scribbles too, so I certainly understand the court's initial reaction.

[00:33:14] Speaker 03:
What I would say are a couple of things.

[00:33:17] Speaker 03:
First, I think in the context of the parties who had been litigating these issues for months, I actually think the disclosure would have been

[00:33:25] Speaker 03:
readily understandable.

[00:33:27] Speaker 03:
And more than that, I actually think that it would have been evident that there was not much that was actually new on it.

[00:33:33] Speaker 03:
And I can offer a couple of specific examples.

[00:33:35] Speaker 05:
Yes, and specifically talk about, let's back up though, to put a context to these examples.

[00:33:42] Speaker 05:
Do you agree with the defendant, Mr. Pinkus, in this context, that the obligation under 16C

[00:33:49] Speaker 05:
is to give the opinions and the rationale for the opinions.

[00:33:55] Speaker 05:
Not just topics, but the opinions and the rationale for the opinions.

[00:34:00] Speaker 05:
Do you agree with that?

[00:34:01] Speaker 03:
I think I do agree with that.

[00:34:03] Speaker 03:
I don't think it necessarily has to take the same form as a pretrial Rule 16 disclosure.

[00:34:11] Speaker 03:
And I think here, Defense Exhibit 9A was supplemented by

[00:34:19] Speaker 03:
opportunity to speak to Dr. Boardman.

[00:34:21] Speaker 03:
But I also want to push back against the notion that Defense Exhibit A-9 was some massive bombshell that required a lengthy amount of time to respond to.

[00:34:31] Speaker 03:
Because I think if you look at what is said in it, a lot of it was actually said in Dr. Boardman's initial report.

[00:34:37] Speaker 03:
For example, that

[00:34:39] Speaker 03:
sexsomnia involves primal and not complex behaviors, and that sexual intercourse is not the most common expression of sexsomnia.

[00:34:50] Speaker 03:
Those were both things that Dr. Boardman had said in his initial report.

[00:34:53] Speaker 02:
Just to beg the question, you know, A9 was only furnished because the prosecutor had said

[00:34:59] Speaker 02:
that we have new opinions.

[00:35:02] Speaker 02:
The defense counsel understandably may look at that and say, just what Mr. Mohan has said, and that is, well, some of this, I can't tell what's going to be new.

[00:35:13] Speaker 02:
This is just essentially references to what I already knew Dr. Borman was going to testify about.

[00:35:21] Speaker 02:
The whole problem is that he needed to ascertain what the new opinions were.

[00:35:26] Speaker 02:
What you're saying seems

[00:35:27] Speaker 02:
a little bit adverse to your interest.

[00:35:31] Speaker 03:
Well, it's not as if the government, I think perhaps the sparseness of defense exhibit A9 cuts both ways.

[00:35:39] Speaker 03:
It's not as if the government disclosed pages and pages of supplemental disclosures that counsel had to go through.

[00:35:45] Speaker 03:
I think he could have read this fairly quickly and he would have realized that, hey, this stuff about a forensic psychologist or psychiatrist with respect to malingering is new, but the stuff about primal complex behaviors, that was really the whole point of Dr. Boardman's

[00:36:01] Speaker 05:
Well, was it?

[00:36:03] Speaker 05:
I mean, the whole reason we're here is the malingering issue.

[00:36:06] Speaker 05:
And when I look at these scribbles, I mean, I see the things you're pointing to, but those things aren't talking about malingering.

[00:36:15] Speaker 05:
I mean, they are not expressly doing that.

[00:36:18] Speaker 05:
They aren't expressly offering opinions that would counter Dr. Kishida's statements about malingering.

[00:36:26] Speaker 05:
They don't do any of that.

[00:36:28] Speaker 05:
I mean, so let's assume

[00:36:31] Speaker 05:
Well, and we have a little more time to talk about it, but let's assume for the moment there is a rule supplemental rule 16 C violation here.

[00:36:40] Speaker 05:
Focus me on whether the district court did enough to remedy that violation and what's your best argument there.

[00:36:48] Speaker 03:
So a few points.

[00:36:50] Speaker 03:
First of all, I think that even to this day, Mr. Crowe has not suggested even a general line of questioning that he would have pursued with additional consultation.

[00:37:00] Speaker 03:
In that regard, I would note that Dr. Kushida was present during Dr. Boardman's testimony.

[00:37:06] Speaker 03:
So if there truly was some additional line of questioning, Dr. Kushida could have made that known to counsel even after the fact, and counsel could have made that known to the court either later in trial

[00:37:17] Speaker 03:
or in a new trial motion.

[00:37:20] Speaker 05:
But the case law focused on potential prejudice, not actual prejudice, right?

[00:37:25] Speaker 03:
So I think there's certainly language of potential prejudice.

[00:37:29] Speaker 03:
I think if you look at the cases that Mr. Crowe cites for that point, I don't think any of them establish sort of a minimal threshold.

[00:37:37] Speaker 03:
And I think the abuse of discretion

[00:37:39] Speaker 03:
standard is accommodating enough to account for the nature of prejudice.

[00:37:44] Speaker 03:
I'd also note if you look at those cases, I think they involve much more significant disclosure violations, most often the disclosure of a brand new witness on the eve of trial or in the middle of trial, and much more specific claims of prejudice.

[00:38:00] Speaker 03:
I mean, I point to United States versus Adams as an example where you had

[00:38:04] Speaker 03:
a late disclosure of a defense mental health expert, and that deprived the government of the opportunity to conduct an independent examination.

[00:38:13] Speaker 03:
I don't think we have even sort of a general sense of what additional cross-examination would have entailed.

[00:38:20] Speaker 03:
And I think that's unsurprising, because both experts sort of set their piece on malingering.

[00:38:25] Speaker 03:
They disagreed, and that was that.

[00:38:28] Speaker 02:
And so I think those

[00:38:29] Speaker 02:
But, you know, just to push back on that a little bit and tell me why I'm looking at this too simplistically.

[00:38:36] Speaker 02:
How in the world would defense counsel be able to do that?

[00:38:38] Speaker 02:
I mean, you're sure not going to give permission to Mr. Pinkins to call Dr. Borman and then, you know, ask the questions that he wasn't able to do in the 30 seconds that he had.

[00:38:50] Speaker 02:
You know, to speak with Dr Kushida and and so what, you know, so then he can, you know, now talk to Dr Kushida and then what is he going to do?

[00:38:59] Speaker 02:
Say, well, I could have asked these questions of Dr Borman.

[00:39:03] Speaker 02:
Well.

[00:39:05] Speaker 02:
You know.

[00:39:07] Speaker 00:
Could I?

[00:39:08] Speaker 00:
I'm sorry.

[00:39:10] Speaker 00:
Go ahead.

[00:39:10] Speaker 00:
You need to answer his question.

[00:39:11] Speaker 03:
And I see my time is up if I may answer the question.

[00:39:14] Speaker 03:
I think that counsel could have made a record and we might have a different analysis of the abuse of discretion here.

[00:39:21] Speaker 03:
And I would also note that there was this other member of the defense team who could have consulted with Dr. Kushida.

[00:39:29] Speaker 03:
And I think that's another indication that there was no prejudice here.

[00:39:33] Speaker 00:
Could you just briefly address your harmless error argument?

[00:39:37] Speaker 00:
It seems to me that the jury's verdict here, you know, acquitting on two counts, I believe, and convicting on the other, indicates that it really was about the battle of experts and what they believed in terms of sexsomnia and what, you know, what each expert said the characteristics are

[00:39:59] Speaker 00:
attributes of it were, I mean, it seems that it'd be a little hard to say this was harmless since this was all about the expert's testimony.

[00:40:09] Speaker 00:
And the jury did clearly bite off on some aspects of the defense expert's testimony perhaps when it came to quitting on the counts where the defendant didn't, did actually have to

[00:40:28] Speaker 00:
or didn't actually have to do many acts, I guess, in terms of they were in the same room together to start that type of thing.

[00:40:37] Speaker 03:
And I want to be careful about how I frame the harmlessness question, because Mr. Crowe has not challenged the admission of Dr. Boardman's malingering opinion on appeal.

[00:40:47] Speaker 03:
So I think the question is not whether that opinion was harmless or prejudicial, but rather whether the denial of more time was harmless or prejudicial.

[00:40:57] Speaker 03:
And I think there are a number of reasons why that wasn't the case.

[00:41:02] Speaker 03:
First,

[00:41:03] Speaker 03:
This opinion about malingering, and I would go back, I think my arguments about prejudice bleed into the harmlessness and the failure to articulate applies to both those points, but this opinion about malingering did not directly relate to the fundamental dispute that Your Honor described.

[00:41:19] Speaker 03:
between the experts, which was really whether more complex acts such as opening and closing doors were inconsistent or consistent with sexsomnia.

[00:41:28] Speaker 03:
You know, malingering doesn't really have anything to do with that, which is why I think Mr. Crow suggests that it might have had this more general effect on how the jury assessed the expert's credibility.

[00:41:39] Speaker 03:
And let me offer a few responses to that.

[00:41:42] Speaker 03:
First, I think the jury heard a large volume of unchallenged expert testimony.

[00:41:48] Speaker 03:
And so I think the volume of that testimony reduces the impact of any additional cross-examination on this point.

[00:41:55] Speaker 03:
I would also note that Dr. Kushida defended his assessment of malingering.

[00:41:59] Speaker 03:
So it's not as if this opinion went wholly uncontested.

[00:42:03] Speaker 03:
And while the government certainly attacked Dr. Kushida for any number of things, it did not bring up Dr. Boardman's malingering opinion in either closing or rebuttal.

[00:42:13] Speaker 00:
Thank you.

[00:42:17] Speaker 05:
On what I thought you were going to say and you did not is that somehow or other prejudice was reduced by the fact that That we heard from the defendant on the stand in terms of

[00:42:32] Speaker 05:
of what his view was and that Dr. Bornman was in effect undercutting the line of testimony of the defendant.

[00:42:45] Speaker 05:
I thought that was a view of your brief, right?

[00:42:49] Speaker 03:
That's right.

[00:42:49] Speaker 03:
I mean, I think, I guess I would put it like this.

[00:42:52] Speaker 03:
I think there were two, just two big disputes between the experts.

[00:42:56] Speaker 03:
One sort of whose story did you credit Mr. Crowe or J.A.

[00:43:01] Speaker 03:
Frankly, I think that was not the proper subject of expert testimony to begin with and that the jury

[00:43:06] Speaker 03:
made that determination resolve that dispute by reference to the testimony of both the victim and Mr. Crowe.

[00:43:12] Speaker 03:
I think the other dispute is this question about complex versus primitive actions, and that has nothing to do with Milling Green.

[00:43:20] Speaker 05:
And so I think... Well, wasn't there a dispute about... Well, I thought that Dr. Bornman's testimony in part went to whether Dr. Koshida

[00:43:28] Speaker 05:
was qualified to make a malingering determination.

[00:43:36] Speaker 05:
And to the extent that Dr. Boardman undercut Dr. Koshida's view that there was no malingering, wouldn't the idea then be planted in the jury's mind that in fact he may have been malingering and hence the complex acts would have been the ones that would fall if anything fell?

[00:43:57] Speaker 03:
Well, I think that if that seed was planted in the jury's mind, it would have resolved any question about malingering by listening to Mr. Crow and listening to the victim.

[00:44:10] Speaker 03:
And I think in this regard, it's perhaps worth noting that

[00:44:12] Speaker 03:
While the pretrial opinions were framed very much in terms of specific opinions about this case, I think the district court forced both experts into more hypotheticals at trial.

[00:44:25] Speaker 03:
So what the jury heard was, were these actions consistent with sexsomnia?

[00:44:28] Speaker 03:
Were these types of actions consistent with sexsomnia?

[00:44:32] Speaker 03:
And I think that undercuts any prejudicial effect with respect to the specific facts of this case.

[00:44:40] Speaker 05:
Anything else from my colleagues?

[00:44:43] Speaker 02:
I don't have anything for the ability, but if it's permissible, I have one question for Mr. Pincus.

[00:44:51] Speaker 05:
It's always permissible.

[00:44:52] Speaker 05:
All right.

[00:44:53] Speaker 05:
Thank you, counsel, for the government.

[00:44:55] Speaker 05:
Mr. Pincus, you're up again.

[00:44:57] Speaker 05:
Sorry.

[00:44:58] Speaker 05:
Just to respond to the question or?

[00:45:00] Speaker 05:
To respond to the question, I think there was a sufficient additional time offered.

[00:45:05] Speaker 05:
So please respond to Judge Vakrak's question.

[00:45:09] Speaker 02:
I don't want to belabor this, but I did want to ask you since there has been quite a bit of discussion about Rule 16C, and I'll just tell you the way I read 16C, and you just tell me if I'm wrong, a party who discovers additional evidence or material before or during trial must promptly disclose its existence to the other party or the court if

[00:45:34] Speaker 02:
Number one, the evidence or material is subject to discovery or inspection under this rule.

[00:45:40] Speaker 02:
And so the way I have always understood rule 16C1, and I'm guilty of a lot of misinterpreting rules and statutes, but I had thought that this isn't really a kind of a standalone, you know, something new comes up during trial, then you have to supplement it.

[00:46:00] Speaker 02:
It's this language, if it is subject to discovery or inspection under this rule, and rule 16, to me the operative language is rule 16 C1GI, and so if there is additional information that comes up, that is

[00:46:22] Speaker 02:
discoverable under rule 16C1GI that the prosecutor didn't know about at the time that he furnished Dr. Borman's report, came up during the trial, then he would need to disclose it.

[00:46:34] Speaker 02:
But I don't understand if my reading of 16C1 is correct, why the prosecutor would need to disclose these additional bases for the opinion of Dr. Borman if they weren't

[00:46:47] Speaker 02:
discoverable pretrial because they weren't responsive to Dr. Kushida's information that was timely disclosed under 16C B1C.

[00:46:59] Speaker 02:
Do you follow my question?

[00:47:01] Speaker 02:
So my question is, if it wasn't initially discoverable under 16C 1GI, how could it be discoverable under 16C 1?

[00:47:12] Speaker 04:
Well, I mean, 16, um, see, uh, the GI, uh, portion is talking about testimony that goes to counter the, what was disclosed by the defense.

[00:47:27] Speaker 04:
So this is certainly countering Dr. Kushida's testimony.

[00:47:31] Speaker 04:
And it's the government who's been arguing, this is something they, that this was just a supplemental notice.

[00:47:38] Speaker 04:
I think the advisory committee notes are, do you talk about how

[00:47:41] Speaker 04:
additional opinions of an expert, but I would focus on the part about where additional evidence or material arises at trial that requires a supplementation.

[00:47:53] Speaker 04:
I don't think that happened here.

[00:47:54] Speaker 04:
Again, even if it should have been a rule 16C disclosure, it's inadequate for, because these notes, as Judge Holmes was pointing out, are just scribbles.

[00:48:05] Speaker 04:
And the government is the one saying that

[00:48:09] Speaker 04:
This wasn't all the defense had.

[00:48:10] Speaker 04:
They had the opportunity to meet with Dr. Borman, and that's precisely our point.

[00:48:15] Speaker 04:
Defense counsel needed to do that, and only then could defense counsel meet with Dr. Koshida to be able to counter this new opinion.

[00:48:22] Speaker 04:
Thank you so much.

[00:48:24] Speaker 02:
Okay.

[00:48:26] Speaker 02:
Thank you, counsel, and thank you, chief, for indulging.

[00:48:29] Speaker 05:
All right.

[00:48:30] Speaker 05:
Thank you, counsel, for your fine arguments.

[00:48:32] Speaker 05:
Case is submitted.