[00:00:00] Speaker 01:
is United States versus Diaz.

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It is DACA 256028.

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Counsel, please proceed when you're ready.

[00:00:13] Speaker 02:
Thank you, Your Honors.

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May it please the Court.

[00:00:16] Speaker 02:
My name is Lynn Hartfield, and I represent the appellant Michael Dias.

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Now, the first two issues that I've raised require the Court to take a hard look at the strength of the evidence in this case, albeit under slightly different standards.

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With regard to the 404b issue, the government doesn't really contest that it was error to admit that conviction.

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It was not relevant to either intent or knowledge, and I would draw the Court's attention to the Third Circuit's opinion in Caldwell that thoroughly sets out why a felon in possession conviction is not relevant in a case like this.

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Now, the District Court also didn't conduct a Rule 403 balancing as required by Los Gatos

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the LOBOS, which compounded the error.

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However, the government's real argument focuses on the harmless error analysis.

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And that standard requires the court to look at whether the error substantially influenced the outcome of the case, which in turn requires an assessment of the strength of the evidence and the probative value of erroneously admitted evidence.

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So here, looking at the strength of the evidence,

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The alleged victim, Austin, testified that he came home to pick up a piece of clothing, and he found Mr. Dias in his home.

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Austin and Mr. Dias then had a verbal altercation, which was captured on video.

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And then Mr. Dias left the home, and Mr. Austin chased him out of the home.

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And at that point, the video stops.

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If we only had Mr. Austin's testimony, there wouldn't be a lot to say here.

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But we don't.

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is a video of the altercation before Mr. Dias allegedly pulled out a gun.

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We have a 911 call.

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And we have a body cam video from the responding officer.

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Now, there are six different things that undermine Mr. Austin's testimony.

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And I just want to draw the court's attention to those things.

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The first is the demeanor of the two parties on the cell phone video.

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What we can see is that Mr. Austin is enraged.

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understandable since he found someone in his home.

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But nonetheless, he was extremely enraged.

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He threatened to kill Mr. Dias several times.

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He's extremely angry.

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Mr. Dias, on the other hand, is fairly calm.

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And he's just trying to deescalate the situation.

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So again, when you just look at the demeanor of the two parties and you had to guess which person pulled the gun, it certainly would seem.

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Well, the cell phone video was played for the jury, right?

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Yes.

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Why isn't this a credibility determination for the jury?

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You're talking about demeanor.

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I mean, that is right in the purview of what a jury does.

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Well, it is true that the jury makes credibility determinations, but this court still has to look at whether the evidence was sufficient beyond a reasonable doubt standard.

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And the Goldsberry decision is the case that I think the court should look at the most closely.

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Because in that case, we also had different witnesses testifying.

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Some testified one thing.

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We had two.

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We had actually one.

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Anyway, I don't think this case is close at all to Goldsberry.

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There was not a video of what happened in the bedroom in Goldsberry.

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Nor was there a video of what happened regarding the gun.

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We have a video of what happened before the gun was pulled.

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But we certainly don't have a video of what happened at the time the gun was pulled.

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And similar to Goldsbury, we didn't have the defendant testify, but we had other people talking about what the defendant said in Goldsbury.

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And here we have the defendant captured on video saying, I didn't break into your house.

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Let me get out of here.

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Let me pick up my belongings.

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I will leave.

[00:04:12] Speaker 01:
Couldn't the jury look at that just the opposite of what you are, which is to say,

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A firearm can be used for defense as well as offense and certainly the homeowner was very aggressive and continued to pursue and there were threats and as you said understandably very upset about that.

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And as I look at that video right before it breaks off.

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It looks like the defendant is trying to reach inside of the yellow toolkit, trying to reach inside and then it breaks off.

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Why wouldn't it be a reasonable inference that indeed he got the firearm out of the toolkit and the homeowner ran away?

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Well, certainly I think that the evidence, you know, Mr. Dias did not have the burden of proof here.

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And what I am saying is that the evidence was about 50-50.

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We have, you know, Mr. Austin's testimony and then we have

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all of the things that cast doubt on it.

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And it's not just the demeanor?

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The fact that he says, I wasn't the one shooting, doesn't seem that odd to me, given, I mean, we're talking about a black man who's facing with the police.

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I mean, we have plenty of cases where you want to make very clear, I'm not the shooter here.

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And the jury could, I mean, the problem I have with your argument is that all of this seems to be,

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Asking us to put ourselves in the role of the jury here and you know I don't you know That's not what we do Well, that's that's certainly

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The law is that the jury's verdict is entitled to deference.

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But at the same time, this court doesn't just abdicate its responsibility to look at the Beyond a Reasonable Doubt standard.

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And when we look at the evidence, not just bits and pieces, as Goldsbury makes clear, we don't just look at like, well, OK, he could have said, I wasn't a shooter because I'm a black man in Oklahoma City, and that's reason enough for me to have said that.

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We look at all of the different things.

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So we have the demeanor.

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That's one thing.

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We have the 911 call.

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We have the evidence that Mr. Dias walked into an unlocked building rather than broken.

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And again, if somebody is going to burglarize a building, they're more likely to have a gun than if they just happened to walk in.

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We also have the location of the casing.

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You're going to rob me and come into my home to rob me?

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And do we have any authority for the proposition that

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If the door happens to be unlocked, I'm going to get rid of the gun that I happen to have with me?

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Well, there's no evidence that he took anything.

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And so again, we don't know whether he went in there just to take shelter.

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It was a cold day.

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If you look at Mr. Dias on the video, and there's evidence, of course, in the PSR, which was not given to the jury, that Mr. Dias was homeless.

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But we know he's got all these belongings on him, which doesn't look like somebody burglarizing a home.

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It looks like somebody potentially just ducking in to get warm.

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Is all of this in the context of harmlessness?

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Yes.

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It's in both.

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I mean, I think both the sufficiency standard and the harmlessness standard require the court to look at the strength of the evidence.

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And so on sufficiency, with my first point, how I would look at that video and my observation that an angry man with a firearm

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probably isn't going to wait for 20 seconds or whatever it was before he displays it and starts shooting.

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Those sorts of things on sufficiency go to the government, right?

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You know, again, I think we have to look at what the inferences that flow from the evidence.

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And nobody is saying that... I think what Judge Phillips is saying is when we are reviewing sufficiency of the evidence after the jury has convicted,

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we have to take all inferences in favor of the government?

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If they flow from the evidence.

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And again, there has to be reasonable inference.

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Yes, it has to be a reasonable inference.

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And again, there's nothing that says that Mr. Austin had to have the gun on him when he walked into his home.

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And in fact, that wouldn't make much sense.

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He had just gone to work.

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He left his car running.

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He ran in the house.

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So it's not likely he would have had a gun with him.

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On the other hand, people do keep guns in their cars.

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The video cuts off before any gun is pulled.

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The other things that... They should just argue that the inference supports the verdict.

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I think, again, individually, you could go either way with each piece of evidence.

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You could say, well, with respect to the demeanor, Mr. Austin was angry because he found someone in his home.

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And for those sorts of things on a sufficiency,

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We can't go either way.

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We can only go one way.

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And that's in favor of the verdict, right?

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I think when you look at all the evidence together, it's the whole of it.

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It's like not taking each little individual piece and saying, well, let's take this inference in favor of the government.

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It's saying, look at everything altogether.

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And are we giving every inference to the government and then, on top of it, not looking at the Beyond a Reasonable Doubt standard?

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That's what Goldsberry teaches.

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But either with the 404B harmless error analysis and with the sufficiency analysis, you have to look at the strength of the evidence.

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It's just that the sufficiency standard is a greater burden, and I do understand that.

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However, because they're related, I think we have to discuss the evidence in both contexts.

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But that's only some of the issues that are problematic in this case.

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The other is the location.

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I can see how you would lose on sufficiency and win on harmlessness.

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So why aren't you just arguing harmlessness?

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Because I think that it's the same evidence we're looking at.

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But the standard is different.

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The standard is different, but it's the same evidence.

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But the standard is better for you under harmlessness than sufficiency.

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Absolutely.

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Absolutely.

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So I mean, I think it's a no-brainer that this was not a harmless error.

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But I think we have to look at the evidence, and that's why I'm going through it.

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I think under either standard, he should win.

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There are different remedies.

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Obviously, for the 404B, I don't have as high a burden.

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And I think it's pretty clear that the error wasn't harmless.

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If that's what the court is going to rule on, then he gets a new trial.

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If the court doesn't agree with me on the sufficiency, then the conviction is not vacated.

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He only gets a new trial.

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But those are, but it's the same evidence that the court is reviewing.

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And so I'm merely pointing to the issues that made this really a 50-50 case or, you know, for harmless error, maybe it only needs to be a 60-40 or 75-25 case.

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But in any event, the evidence wasn't strong.

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And adding in that Mr. Dias had been convicted of exactly the same thing.

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Well, the evidence was that the victim testified.

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He pulled a gun and shot at me.

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That wasn't the only evidence that we had the video.

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We had the location of the casing.

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We had the timing of when the weapon was pulled.

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So there were a lot of different things that were given to the jury.

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And then there were a lot of things that weren't given to the jury, such as interviewing the neighbors or doing any forensic testing.

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None of that was given to the jury.

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And all of those things together made this not a particularly strong case.

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And adding in that prior conviction really tipped the scales

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unfairly in favor of the government.

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And on that point, we do look and see how much was it emphasized.

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And the answer here is it was one answer to one question and never mentioned again, right?

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Well, that was the same as the Comanche case, and the court reversed in the Comanche case, and it's similar.

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It's, 404B evidence is particularly strong because when you've got the jury going, hmm, there's some weird things about this case, but, you know, that guy, he's been convicted of the very same thing.

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That's enough to tip the scales.

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And that makes, that's what make this not harmless error.

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Comanche was using a knife.

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And on this occasion, he used a knife.

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So he must use the knife on this occasion.

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That's a lot different.

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And this, we had felon in possession.

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And in fact, the jury wasn't told the circumstances of that felony in possession conviction, which actually involved his girlfriend's kid taking a gun and shooting it, not him.

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But the jury wasn't told that.

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They were just told he was convicted of having a gun when he shouldn't have.

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And that's the same thing that he's being charged with here.

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If the court doesn't have any further questions, I reserve my time.

[00:13:01] Speaker 02:
I don't know if the court wants to discuss the sentencing issue.

[00:13:06] Speaker 01:
It's kind of in your court.

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If you want to speak about it, speak.

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In other words, you can reserve your time.

[00:13:12] Speaker 02:
Your Honor, I think I will just reserve my time and stand on the briefing on the sentencing issue.

[00:13:16] Speaker 01:
All right.

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No further questions.

[00:13:18] Speaker 02:
Thank you.

[00:13:18] Speaker 01:
Sounds good.

[00:13:24] Speaker 00:
Good morning, Your Honor.

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May it please the court, Tanner Larkin for the United States.

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Since my friend on the other side mostly focused on the evidentiary issue and harmlessness, I'll focus there.

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Well, can we first clarify, do you concede it was error to let in the prior conviction here?

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So Your Honor, we don't think the court needs to reach that question.

[00:13:49] Speaker 03:
Well, I'm not asking if I don't tell me what to do on my job.

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I'm asking you, do you concede?

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If the court is inclined to reach that question, we would.

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concede that it was error in this case, because this is a very unusual case, Your Honor, which involves actual possession, but also the defendant actually firing the gun, but the defendant did not put knowledge of issue.

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So we're talking harmlessness.

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We can just move on to that.

[00:14:20] Speaker 00:
Yes, Your Honor.

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So this error was

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harmless for two reasons.

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First, just like in Kupfer, this evidence played only a very minor role at trial.

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As in Kupfer, this came up in a single exchange with a single witness.

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And yet there is that saying dynamite comes in small packages.

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That's true, Your Honor, but I think if you look at this case, this evidence was not dynamite.

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It was a blip on the radar for the jury.

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Then why ask?

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Well, the government did not know what the defense case was going to be.

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And so it didn't know if knowledge was going to be at issue.

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And that's why it brought this in.

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But it brought it in only in a single exchange with a single witness.

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It did not attempt to capitalize on this in closing argument.

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And the district court gave a limiting instruction, which said that this could be considered for knowledge and no other purpose.

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And since the only issue in this case was possession,

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That meant that the jury did not consider it for the only thing that was really at issue.

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And in this case, proof of possession was proof of knowledge, which makes this such an unusual case.

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As for the strength of the evidence, this is not a 50-50 case, Your Honor.

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It's not even a 75-25 case.

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This is not a he said he said, literally, because Austin testified under cross-examination

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And the jury found him to be credible.

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Meanwhile, Diaz not only did not testify, but put forward zero evidence, as the government pointed out in its rebuttal statement to the jury.

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In addition, if you look at Austin's actions, they confirm his account.

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If you had just committed a crime, the last thing you're going to do is immediately call 911.

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and try to get the police there as quickly as possible, and then immediately show them the video you filmed of what happened right before the crime.

[00:16:18] Speaker 01:
Unless, unless, unless, unless the neighbor really did seem to fire the gun.

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And there's some evidence that's offered that the neighbor was implicating the homeowner.

[00:16:29] Speaker 00:
Well, Your Honor, I'd point out in that video, we don't know what the neighbor actually said.

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So we know the neighbor said something, and Austin said, it wasn't me.

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But I think that's a perfectly reasonable reaction.

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When you're the only person at the scene of a crime, the other person has fled.

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And for all you know, that person is never going to be found.

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It's perfectly reasonable to seek to dispel any doubt.

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So that's Austin's demeanor.

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He takes the video.

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He shows it to Officer Howard within 10 seconds of his arrival.

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But what does Diaz do?

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He flees.

[00:17:00] Speaker 00:
Ordinarily, flight is evidence of consciousness, of guilt.

[00:17:06] Speaker 00:
Yes, but I think if you actually look at the manner in which he fled, he didn't just try to flee.

[00:17:11] Speaker 00:
He risked his life to evade capture.

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When a police officer pulled a firearm on him, he flipped the middle finger and kept running.

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And when a police dog tackled him, he attempted to gouge out the eyes of the dog.

[00:17:23] Speaker 00:
I would suggest that this is not the action of someone who thinks that he is facing his fifth state burglary rap.

[00:17:29] Speaker 00:
It's the action of someone who realizes that he is in more serious trouble than that.

[00:17:36] Speaker 03:
That's a lot of speculation.

[00:17:41] Speaker 00:
Well, Your Honor, I think it is important to realize that the defense put forward a theory in this case.

[00:17:49] Speaker 00:
It put forward zero evidence to call into question the eyewitness testimony of Austin, which the jury heard him testify and found to be credible and was substantiated by the other evidence, including, of course, Deas' flight, but Officer Howard's testimony that

[00:18:06] Speaker 00:
that Austin was consistent in everything that he told him.

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And I think if you look at the strength of the evidence here, and you look at the way in which this conviction barely came up, and the fact that the district court told the jury, you may not consider this for anything other than knowledge, in a case where proof of possession was all but conclusive proof of knowledge, it's hard to see how this could substantially influence the verdict in this case.

[00:18:35] Speaker 00:
How far away was he when he was captured?

[00:18:37] Speaker 00:
About half a mile, Your Honor.

[00:18:39] Speaker 00:
And no firearm was ever found?

[00:18:42] Speaker 00:
That's right.

[00:18:42] Speaker 00:
So he made it at least half an hour before he was caught.

[00:18:45] Speaker 00:
Made it about half an hour.

[00:18:46] Speaker 00:
He went through various people's backyards.

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He went through this drainage ditch, which had some vegetation.

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And we know that he ditched the power box that was found.

[00:18:56] Speaker 00:
We know that he ditched the backpack, which was found, which contained illicit materials, wallets, women's clothing, items that suggested that he had recently been engaged in burglary.

[00:19:06] Speaker 00:
Those are large objects.

[00:19:07] Speaker 00:
Were they in the same place?

[00:19:09] Speaker 00:
I don't know if those two items were in the same place, Your Honor.

[00:19:13] Speaker 00:
But we had testimony from the police officer that this is precisely the kind of area we could hide a gun and have it not be found.

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So it really is not at all surprising that it was not found in this case.

[00:19:32] Speaker 00:
Unless the court has any further questions.

[00:19:34] Speaker 00:
Well, talk a little bit about harmlessness.

[00:19:37] Speaker 00:
It's your burden.

[00:19:37] Speaker 00:
What do you have to show?

[00:19:39] Speaker 00:
So what we have to show in a non-constitutional error case such as this is that the evidence that was admitted did not substantially influence

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that come at trial or leave a grave doubt about that.

[00:19:52] Speaker 00:
And again, what this court has looked to is how was this evidence used in the context of the entire record, context of the entire case.

[00:20:01] Speaker 00:
And we have something that came up very briefly for the jury.

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The government did not attempt to capitalize on it in its closing argument.

[00:20:08] Speaker 00:
And even the defense counsel correctly told the jury that we're not here by what happened in 2019.

[00:20:13] Speaker 00:
The district court told the jury, don't consider this evidence

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for anything other than knowledge, and it's specifically warned against propensity reasoning.

[00:20:21] Speaker 00:
Meanwhile, we have a strong case here.

[00:20:23] Speaker 00:
We have the testimony of a witness.

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We have other evidence that corroborates his account.

[00:20:29] Speaker 00:
And there was zero evidence on the other side of the lecture.

[00:20:31] Speaker 03:
What's other evidence that corroborates Mr. Austin's account?

[00:20:36] Speaker 00:
Well, I think the fact that he called 911 within about 30 or 40 seconds.

[00:20:40] Speaker 00:
And if you listen to that video, he is literally breathless.

[00:20:44] Speaker 00:
His first instinct is to try to get the police on the scene, which I would suggest is consciousness of innocence.

[00:20:53] Speaker 00:
What was the question that elicited the response, if you have it in front of you?

[00:20:57] Speaker 00:
So, Your Honor, the prosecutor asked the case agent, Detective, have you looked at the defendant's criminal history?

[00:21:05] Speaker 00:
Yes.

[00:21:06] Speaker 00:
Are you aware of a 2019 conviction in Oklahoma State Court for being a felon in possession?

[00:21:10] Speaker 00:
Yes.

[00:21:12] Speaker 00:
So he was convicted of that.

[00:21:13] Speaker 00:
Yes.

[00:21:14] Speaker 00:
And then the defense counsel in its cross-examination asked the witness.

[00:21:18] Speaker 00:
So this was a plea, not a jury trial.

[00:21:20] Speaker 00:
Correct.

[00:21:21] Speaker 00:
Witness said correct.

[00:21:22] Speaker 00:
So this is very different from the Comanche case, where you had questions put to two separate witnesses, where they went into a fair amount of detail about the violent acts.

[00:21:33] Speaker 00:
As this court said to McLaughlin in the 403 context, if you put in a prior conviction with all the details, the court is going to be a lot more concerned that is going to influence the jury.

[00:21:43] Speaker 00:
But if you only put in the fact of the conviction, that is much less likely to have a substantial influence on the jury.

[00:21:50] Speaker 00:
And I agree with you on Comanche.

[00:21:52] Speaker 00:
I think that's different.

[00:21:54] Speaker 01:
But if we affirm here, is that the new normal?

[00:21:57] Speaker 01:
Go ahead and ask your one question about, has the person been convicted of a felon in possession and never mentioned again?

[00:22:03] Speaker 01:
I hope that the reverberating bell continues through jury deliberations.

[00:22:09] Speaker 00:
That's not the new normal, Your Honor.

[00:22:12] Speaker 00:
In this case, this 404B evidence had very little probative value for the government.

[00:22:18] Speaker 00:
The government had a very strong case.

[00:22:19] Speaker 00:
It didn't need this.

[00:22:20] Speaker 01:
I've seen a lot stronger cases than this one.

[00:22:22] Speaker 01:
You can say it's a really strong case, but nobody other than the homeowner says he had a gun in his hand for one thing.

[00:22:31] Speaker 00:
Well, I think one way of looking at it, Your Honor, is when the government went up to give its closing argument, it didn't mention this.

[00:22:36] Speaker 00:
It mentioned all of the other evidence in this case, because that's what it felt

[00:22:40] Speaker 00:
was what was important for the jury to be thinking about.

[00:22:43] Speaker 00:
So I think had we known that the defendant was not going to put possession at, excuse me, intent, knowledge at issue, this is not something that would have come in in the first place.

[00:22:56] Speaker 00:
So the government would not risk an issue to be discussed on appeal because it really was not necessary to build this case.

[00:23:07] Speaker 00:
So what it comes down to is this.

[00:23:08] Speaker 00:
You're saying, please don't have a grave doubt.

[00:23:12] Speaker 00:
Your Honor, this is not a graved-out case.

[00:23:13] Speaker 00:
I think this is very similar to Kupfer, where you have something that comes in very briefly, like in Kupfer, where it is not in the closing argument, just like in Kupfer, and where there's a limiting instruction, which this court has emphasized in Becker and many cases is relevant for the 404b harmless error analysis.

[00:23:33] Speaker 00:
And again, this is a very unusual case.

[00:23:36] Speaker 00:
In the mine run of cases, we're talking about constructed possession cases where knowledge of the gun, and specifically of the gun's presence, is going to be the key issue.

[00:23:46] Speaker 00:
This is an actual possession case, but not just an actual possession case.

[00:23:49] Speaker 00:
An actual possession case, or the governance theory, is that the defendant fired the gun.

[00:23:55] Speaker 00:
It's hard to see how he could have not known that the item in his hand was a gun, and that's why this is.

[00:24:02] Speaker 01:
Once you get that far, you got it won.

[00:24:04] Speaker 01:
I agree.

[00:24:05] Speaker 01:
If he's fired a gun, you win.

[00:24:08] Speaker 01:
But that's not where we are.

[00:24:12] Speaker 01:
You've got to concede you a lot to have that.

[00:24:16] Speaker 00:
Well, I think it's important that the jury was not presented with any contrary evidence, any evidence to undermine the credibility of Austin.

[00:24:27] Speaker 00:
If you look at the defense attempts to find inconsistencies that simply aren't there in his testimony,

[00:24:35] Speaker 00:
He, for example, never actually says on the video that the shooting occurred in the grassy area rather than the parking lot.

[00:24:42] Speaker 00:
He never says that the door was broken when he first arrived, as opposed to during the struggle.

[00:24:50] Speaker 00:
I think it's important to remember that many of the arguments you're hearing from defense counsel are the exact arguments that were put to the jury, and the jury did not find them to be very persuasive, simply because

[00:25:06] Speaker 00:
Even though this is maybe not the strongest case that this court has ever seen, it is a case where there is ample evidence on one side of the ledger and absolutely nothing on the other.

[00:25:16] Speaker 01:
Any further questions?

[00:25:18] Speaker 00:
Thank you, counsel.

[00:25:18] Speaker 00:
I ask the court to affirm.

[00:25:19] Speaker 00:
Thank you.

[00:25:23] Speaker 02:
I would agree with counsel that this was a very unusual case.

[00:25:28] Speaker 02:
We do have one eyewitness, but the eyewitness was the alternate suspect.

[00:25:34] Speaker 02:
And we have to look at his testimony in that light.

[00:25:38] Speaker 02:
And when we look at his testimony in that light, there are so many things that undermine his testimony that it makes the case one in which it could have gone either way.

[00:25:48] Speaker 02:
The only way we get to Mr. Dias being the assailant here is to engage in speculation.

[00:25:56] Speaker 02:
And certainly under a sufficiency standard,

[00:25:59] Speaker 02:
The jury is entitled to do some amount of speculation, but under a harmless error standard, we're looking at the strength of the evidence.

[00:26:07] Speaker 02:
And it just wasn't there in this case.

[00:26:09] Speaker 02:
So I'd ask that the court reverse Mr. Dias' conviction.

[00:26:13] Speaker 02:
I think the court could go so far as to vacate the conviction, because sufficiency just isn't there.

[00:26:20] Speaker 02:
But if the court stops short of that, then I'd ask that the court reverse his conviction and order a new trial.

[00:26:26] Speaker 02:
Thank you, Your Honor.

[00:26:27] Speaker 01:
Thank you, counsel, for your arguments today.

[00:26:29] Speaker 01:
The case submitted and counsel are excused.