[00:00:01] Speaker 03:
The last case to be orally heard this morning is 25-8003, United States versus Estrada, counsel for appellant.

[00:00:10] Speaker 03:
If you'd make your appearance and proceed, please.

[00:00:15] Speaker 00:
Good morning, your honors, and may it please the court.

[00:00:17] Speaker 00:
My name is Kathleen Shen, and I represent the appellant, Mr. Gabriel Estrada.

[00:00:22] Speaker 00:
A prosecutor cannot impeach a defendant's exculpatory story told for the first time at trial

[00:00:28] Speaker 00:
by cross-examining him about his failure to have told the story after receiving Miranda warnings.

[00:00:33] Speaker 00:
That comes from the Supreme Court's case Doyle versus Ohio.

[00:00:36] Speaker 00:
That is, the prosecutor cannot suggest that the defendant was guilty because an innocent person would have presented the exculpatory story to the arresting officers.

[00:00:45] Speaker 00:
And that comes from this court's decision in Ward.

[00:00:48] Speaker 00:
But that's exactly what happened here.

[00:00:50] Speaker 00:
In the government's own words, it wanted the jury to ask itself, if

[00:00:55] Speaker 00:
Mr. Strada truly believed this threesome fantasy with coeds and didn't believe she was 13.

[00:01:01] Speaker 00:
Why isn't he saying that to the police?

[00:01:03] Speaker 00:
And to be clear, this was not impeachment by prior inconsistent statement.

[00:01:07] Speaker 00:
The prosecutor's questions and argument were designed to suggest an inference of guilt from silence and not merely point out inconsistencies.

[00:01:15] Speaker 00:
To begin with, if you look at the examination, the prosecutor isn't pointing to specific statements from the interview that it says are inconsistent with his testimony.

[00:01:24] Speaker 00:
It's focusing on what he didn't say, nothing about.

[00:01:27] Speaker 00:
You didn't say to the police.

[00:01:29] Speaker 00:
And of course, it could both be true, as Mr. Estrada said, that Sammy Jo mentioned being 13 and that he wished he had turned around then, and he should have turned around then, and that he didn't believe it at the time as he testified.

[00:01:43] Speaker 00:
And of course, the difference between being told something and believing something matters deeply in a case like this.

[00:01:50] Speaker 00:
It's the difference between guilt and innocence.

[00:01:52] Speaker 00:
And of course, as this court well knows, people often lie on the internet.

[00:01:58] Speaker 00:
Even more obviously, Mr. Estrada never said anything during his police interview that contradicted his testimony that he was motivated by his desire to have a three-way sexual encounter.

[00:02:08] Speaker 00:
On the contrary, that testimony was obviously true.

[00:02:11] Speaker 00:
and was extensively corroborated by his text messages.

[00:02:14] Speaker 00:
So this is not a case like Anderson versus Charles, where the defendant's testimony is contradicted by what he says to police.

[00:02:21] Speaker 03:
In the interview, did he not say that he knew she was 13 and that he kept going and he wished he should not have gone?

[00:02:28] Speaker 00:
Your Honor, I don't see a statement where he says that.

[00:02:30] Speaker 00:
Now, I've read the interview many times.

[00:02:33] Speaker 00:
He says, didn't you know she was 13 or you received the message?

[00:02:36] Speaker 00:
He says, she mentioned it.

[00:02:38] Speaker 00:
And then later he said,

[00:02:40] Speaker 00:
Initially, I thought she was 18.

[00:02:42] Speaker 00:
I'm going to pull out the language now.

[00:02:44] Speaker 00:
And later on, I should have turned around.

[00:02:49] Speaker 00:
So there's never a statement that he knew and believed it.

[00:02:51] Speaker 00:
The government or the police.

[00:02:53] Speaker 03:
Well, why would he have turned around if he didn't believe it?

[00:02:57] Speaker 00:
Because by that time, he had been arrested.

[00:02:59] Speaker 00:
And he, during the interview, did in fact believe there was a real 13-year-old girl.

[00:03:04] Speaker 00:
And at that point, he regretted having gone onto the encounter at all.

[00:03:07] Speaker 00:
He thought he should have known better.

[00:03:09] Speaker 00:
He wished he had turned around, and they have been really sorry that he had been talking sexually with what turned out to be a minor.

[00:03:17] Speaker 00:
Those expressions of remorse and regret are not admissions of what he believed during the text messages.

[00:03:24] Speaker 00:
I think it's natural that somebody would regret interacting sexually with a minor, whether or not he realized that at the time.

[00:03:31] Speaker 00:
I think that comes from both common sense, and this court recognized the same principle in Goldsbury.

[00:03:38] Speaker 00:
government during the cross-examination and the argument, they don't refer specifically to these statements.

[00:03:44] Speaker 00:
Again, if you look at the cross-examination, it's not pointing to statements.

[00:03:48] Speaker 00:
It's not saying, this statement shows that you knew.

[00:03:50] Speaker 00:
It's saying, you never said nothing about, you never say anything about this.

[00:03:55] Speaker 03:
Well, he spoke, the government is referring to things that he said.

[00:04:00] Speaker 03:
I mean, the whole point here with Doyle is silence.

[00:04:03] Speaker 03:
And you can't take advantage of silence.

[00:04:06] Speaker 03:
Well, if the government is alluding to and trying to draw a contrast between what he said in the interview and what he's saying on the stand, whether it was artfully done or not, that's not within the scope of Doyle.

[00:04:19] Speaker 00:
Your Honor, it is within the scope of Doyle if there is no inconsistency.

[00:04:22] Speaker 00:
And again, I think in this case, there is no inconsistency.

[00:04:27] Speaker 00:
If you look at what Mr. Strada says during the interview.

[00:04:29] Speaker 03:
Well, whether it's inconsistent or not is within the eye of the beholder.

[00:04:33] Speaker 03:
If the objective is to draw a contrast between statements that were made in the interview and statements that were made on the stand, and the government believes that it's trying to do inconsistent statements, then what position am I in to say that they weren't inconsistent?

[00:04:49] Speaker 00:
Your Honor, first, there's no inconsistency.

[00:04:51] Speaker 00:
And I think that requiring a true inconsistency as there was in Anderson versus Charles

[00:04:56] Speaker 00:
where the defendant's statement to police could not be reconciled with what he said on the stand, where he said, I stole the car from one location.

[00:05:04] Speaker 00:
And later on the stand, he says he stole it from another location.

[00:05:07] Speaker 00:
Those statements just both can't be true.

[00:05:09] Speaker 03:
But hit the pause button.

[00:05:10] Speaker 03:
Where in the Doyle doctrine, and give me a case, in the Doyle doctrine does it say that they have to be really inconsistent?

[00:05:19] Speaker 03:
Doyle is talking about silence.

[00:05:21] Speaker 00:
Of course.

[00:05:21] Speaker 00:
And this comes from this court's line of cases, specifically Canterbury and Ward.

[00:05:25] Speaker 03:
And I think if you look at the facts of those... Well, in Canterbury, there were certain things that he didn't say, a defense that he later raised.

[00:05:33] Speaker 03:
That's not inconsistency.

[00:05:35] Speaker 03:
That is taking advantage of silence.

[00:05:38] Speaker 00:
Your Honor, in Canterbury, Mr. Canterbury, like Mr. Estrada, gave a statement to police.

[00:05:42] Speaker 00:
He never raised his right to remain silent, and he never refused to answer any questions.

[00:05:46] Speaker 00:
When he's asked, why did you turn up here to buy the silencer, he says, for protection.

[00:05:52] Speaker 00:
He never mentions that he's doing it because his friend Enrici

[00:05:55] Speaker 00:
offered to get him the silencer to repay a debt that Enricci owed.

[00:05:59] Speaker 00:
Those statements are different, but this court says they're not inconsistent.

[00:06:02] Speaker 00:
And the reason they're not inconsistent, of course, they could both be true.

[00:06:05] Speaker 00:
It could be true that he wanted the silencer for protection, and it could be true that he also wanted it in order for Enricci to resolve this debt.

[00:06:13] Speaker 00:
And then if you look at Ward, again, Mr. Ward is arrested.

[00:06:16] Speaker 00:
He talks to police.

[00:06:17] Speaker 00:
He doesn't invoke his right to remain silent.

[00:06:19] Speaker 00:
He answers their questions.

[00:06:21] Speaker 00:
The police ask him, why did you shoot at these three people?

[00:06:24] Speaker 00:
He doesn't deny shooting them.

[00:06:25] Speaker 00:
And he says he did it because they were on a mission to find a woman named Brittany Bimbo.

[00:06:31] Speaker 00:
That's not what he testifies at trial.

[00:06:33] Speaker 00:
At trial, he says, yes, I participated in the shooting.

[00:06:37] Speaker 00:
And I don't know if he denies the Brittany Bimbo story at all.

[00:06:40] Speaker 00:
But he says, also, I was terrified of my co-defendant.

[00:06:43] Speaker 00:
I was afraid.

[00:06:44] Speaker 00:
And there, there is the same kind of parsing of whether there is an inconsistency or not.

[00:06:48] Speaker 00:
It could, of course, be true that Mr. Estrada was told

[00:06:52] Speaker 00:
by Sammy Jo that she was 13 and he didn't believe it.

[00:06:55] Speaker 00:
And again, I understand that in a lot of contexts, people may not think that matters.

[00:07:00] Speaker 00:
If you're told something, you believe it.

[00:07:01] Speaker 00:
One implies the other.

[00:07:04] Speaker 00:
But of course, when you're on trial for attempted enticement of a minor, whether you believed something you were told is incredibly important.

[00:07:10] Speaker 00:
He never once makes any statement that he believed Sammy Jo was 13.

[00:07:14] Speaker 03:
I'm going to hit the pause button here.

[00:07:16] Speaker 03:
Are you telling me that your understanding of the Doyle Doctrine

[00:07:19] Speaker 03:
is I have to discern whether in fact the statements between those two were consistent or inconsistent in order to determine whether Anderson versus Charles applies?

[00:07:30] Speaker 00:
Yes, Your Honor, and that comes directly from Canterbury.

[00:07:33] Speaker 03:
Well, I read Canterbury.

[00:07:34] Speaker 03:
I didn't see anything like that in Canterbury.

[00:07:36] Speaker 03:
Canterbury was talking about silence.

[00:07:38] Speaker 03:
Doyle talks about silence.

[00:07:40] Speaker 03:
There was a defense undercover that was alluded to in Canterbury that was not talked about later, right?

[00:07:46] Speaker 00:
Your Honor, Mr. Estrada's defense was that he didn't believe these statements at the time, that at most he was reckless.

[00:07:53] Speaker 00:
And that is a defense he didn't share with the police at the time.

[00:07:56] Speaker 00:
I think it's on all fours with word of Canterbury.

[00:07:58] Speaker 03:
Well, that's silence.

[00:07:59] Speaker 03:
But that's the point.

[00:08:01] Speaker 03:
Canterbury is talking about silence, and that's what Doyle is talking about.

[00:08:05] Speaker 03:
What I hear you saying now is that you interpret Doyle to mean I have to discern whether, in fact, there was an inconsistency between what the government talked about

[00:08:14] Speaker 03:
In terms of the question, line of questions, it talked about a trial and what went on in the interview pre-trial.

[00:08:21] Speaker 03:
In other words, I have to discern whether there actually is an inconsistency.

[00:08:25] Speaker 03:
Is that what you're saying?

[00:08:26] Speaker 00:
I apologize, Your Honor.

[00:08:27] Speaker 00:
That's not what I meant to say.

[00:08:28] Speaker 00:
OK, that's helpful.

[00:08:29] Speaker 00:
Our position is that there is silence here.

[00:08:31] Speaker 00:
And there is silence because Mr. Estrada never said to the police, I believed that she was a 13-year-old at the time.

[00:08:39] Speaker 00:
He never told police his defense at trial, which is,

[00:08:42] Speaker 00:
I didn't really think she was 13.

[00:08:43] Speaker 00:
She was sent a picture of a 23-year-old.

[00:08:45] Speaker 00:
She was on an 18-plus website.

[00:08:47] Speaker 00:
People lie about their age all the time online.

[00:08:49] Speaker 00:
I talked to her.

[00:08:50] Speaker 00:
She sounded like a 23-year-old.

[00:08:51] Speaker 00:
I even pointed out to her, wow, you sound older.

[00:08:54] Speaker 00:
And then she says, oh, I was sick last week.

[00:08:56] Speaker 00:
And he says, LOL, OK.

[00:08:58] Speaker 00:
So he doesn't raise this defense about his doubts during his statements to the police.

[00:09:04] Speaker 00:
And I apologize, Your Honor, I shouldn't have focused on the Anderson thing.

[00:09:07] Speaker 00:
My point is all of the things that the government is pointing out he didn't say to the police

[00:09:12] Speaker 00:
That's the Doyle error.

[00:09:13] Speaker 00:
He didn't talk about what he was in his mind and what he believed at the time during his interview.

[00:09:18] Speaker 00:
And by focusing on that to discredit him and to argue he was guilty, the government committed exactly the same error that was committed in Ward and in Doyle.

[00:09:28] Speaker 02:
Council, can I leap you forward in the plain error analysis past error and plainness and talk about whether it affected Mr. Estrada's substantial rights?

[00:09:37] Speaker 02:
And in that analysis, we have to take a larger view of

[00:09:41] Speaker 02:
the evidence as a whole.

[00:09:42] Speaker 02:
But in the closing argument, as I understand it, the government framed his various statements by saying his testimony did not match what he said in his interview.

[00:09:52] Speaker 02:
So that's how they frame the argument.

[00:09:54] Speaker 02:
Why can't we interpret that argument to be about inconsistencies, not about silence?

[00:10:02] Speaker 00:
Your Honor, when the government says it's different, it just means that's not what he said.

[00:10:05] Speaker 00:
And we know that's what the government means, because that's expressly what it says during the argument.

[00:10:10] Speaker 00:
He plays the statement.

[00:10:11] Speaker 00:
that the video, and he says, he never says anything about thinking she was 13.

[00:10:16] Speaker 00:
If you truly believe the threesome fantasy with coeds, and you truly believe that she was 13, why isn't he saying that?

[00:10:22] Speaker 00:
And that is exactly, and I think expressly, and cannot be understood as anything but an invitation to infer that if Mr. Estrada were innocent, he would have told his defense to the police.

[00:10:33] Speaker 00:
And that is exactly what Ward and Canterbury forbid.

[00:10:38] Speaker 00:
And just elaborating on why this affected Mr. Estrada's substantial rights, contrary to what the government says in its brief, I think this was a close case, or at minimum, a case where the evidence was far from overwhelming.

[00:10:51] Speaker 00:
Of course, Mr. Estrada's credibility lay at the heart of his related intent-based and entrapment defenses.

[00:10:57] Speaker 00:
And the evidence of Mr. Estrada's specific intent and whether he was entrapped was close.

[00:11:04] Speaker 00:
Of course, he encountered Sammy Jo on an adults-only website.

[00:11:07] Speaker 00:
The profile stated she was 19-year-old.

[00:11:09] Speaker 00:
She was depicted in two photographs as a 23-year-old woman.

[00:11:13] Speaker 00:
He spoke to her on the phone.

[00:11:15] Speaker 00:
She was voiced by a 23-year-old woman.

[00:11:18] Speaker 00:
And he actually observed at the time that she sounded older than her claim.

[00:11:22] Speaker 00:
And she says she'd been sick last week.

[00:11:25] Speaker 00:
And he responds skeptically, LOL, OK.

[00:11:27] Speaker 00:
I think it's also really important in this case, where entrapment is a defense, that there's no evidence whatsoever.

[00:11:34] Speaker 00:
that Mr. Estrada has ever previously or in any other context experienced, expressed, or sought out any kind of sexual interaction or expressed sexual interest in a minor.

[00:11:46] Speaker 00:
And given all these reasons that Mr. Estrada could have doubted that Sammy Jo actually was 13 at the time of their chat and the evidence that Mr. Estrada could have doubted her age until he was arrested and told that this is, in fact, a real girl,

[00:12:02] Speaker 00:
I think there's a reasonable likelihood that you can't be confident that but for this error, the jury would have acquitted him.

[00:12:10] Speaker 00:
And then for the similar reasons, I think it seriously affects the fairness, integrity, and public reputation of judicial proceedings.

[00:12:17] Speaker 00:
It wasn't overwhelming.

[00:12:18] Speaker 00:
And of course, this is a constitutional error.

[00:12:20] Speaker 03:
And what about Mr. Estrada's statement in the interview where he said,

[00:12:25] Speaker 03:
Quote, I feel like you guys know, unquote.

[00:12:29] Speaker 03:
Quote, initially, I went into it thinking she was 18.

[00:12:32] Speaker 03:
Later on, I was already on the way when she, you know, said that, unquote.

[00:12:38] Speaker 03:
How else does one read that in the context of an interview where they're talking about the fact that you believe she was 13?

[00:12:45] Speaker 03:
I mean, the reality is, he said, you guys know.

[00:12:50] Speaker 03:
Well, that's what they know.

[00:12:51] Speaker 03:
They know that he believes she was 13.

[00:12:54] Speaker 00:
Your Honor, it's not a statement of belief.

[00:12:57] Speaker 00:
He clearly never says, I believed it.

[00:12:59] Speaker 00:
He could very well, and I think under the circumstances where he's confronted with this being a real girl, he said, man, I should have known.

[00:13:04] Speaker 00:
But of course, recklessness or even extreme recklessness with respect to age is not sufficient to support a conviction.

[00:13:11] Speaker 00:
What they need is a

[00:13:12] Speaker 00:
They need to show that he really believed and intended to entice a girl who was 13.

[00:13:18] Speaker 00:
And I think it's notable that the officers in the room and Mr. Estrada both understood that he never testified or he never made a statement of belief.

[00:13:26] Speaker 00:
The officer testifies.

[00:13:27] Speaker 00:
I never asked him what he believed at the time.

[00:13:29] Speaker 00:
They didn't ask that.

[00:13:30] Speaker 00:
That's not what he said.

[00:13:31] Speaker 00:
And for all those reasons, Your Honor, we'd ask you to vacate Mr. Estrada's conviction.

[00:13:37] Speaker 03:
And if Mr. Estrada did not believe it, why the apology letter?

[00:13:41] Speaker 03:
He wrote a letter apologizing for his conduct.

[00:13:44] Speaker 03:
Would he be doing that?

[00:13:46] Speaker 03:
Why would he do that?

[00:13:47] Speaker 00:
Yes, of course.

[00:13:48] Speaker 00:
I think many people would certainly feel very sorry for sexually interacting with a child, even if they didn't realize they were a child at the time.

[00:13:56] Speaker 00:
And again, I think both

[00:13:59] Speaker 00:
because he might believe this child was actually hurt by his conduct, regardless of whether he believed at a time again.

[00:14:06] Speaker 00:
I point this court to Goldsberry, and I just think it's a common sense notion.

[00:14:09] Speaker 00:
Here, he may have genuinely felt like he did something wrong and stupid and hurtful, and none of that is an admission that when he was texting with Sammy Jo and driving up to Wyoming, he did so specifically intending to entice a minor.

[00:14:23] Speaker 00:
I'd like to reserve the remaining time for rebuttal.

[00:14:26] Speaker 00:
Thank you.

[00:14:30] Speaker 01:
Good morning.

[00:14:31] Speaker 01:
May it please the court?

[00:14:32] Speaker 03:
Good morning.

[00:14:33] Speaker 01:
Counsel.

[00:14:35] Speaker 01:
Seth Griswold, appearing on behalf of the United States on this appeal.

[00:14:38] Speaker 01:
And I did represent the United States at the trial level as well.

[00:14:42] Speaker 01:
The United States is asking that the court affirm the defendant's convictions because the United States did not plainly and unconstitutionally impeach the defendant with any potential partial silence.

[00:14:53] Speaker 01:
And the defendant did not adequately preserve his jury instruction argument for appeal.

[00:14:58] Speaker 01:
And even if he did, the jury instructions as a whole did accurately inform the jury of the law.

[00:15:04] Speaker 01:
Jumping into the argument that has been made here, Your Honors, the court has hit it on the head.

[00:15:11] Speaker 01:
There's basically a two-step analysis here for a Doyle analysis.

[00:15:15] Speaker 01:
One, was there partial silence?

[00:15:17] Speaker 01:
And then two, what was the manifest intention of the prosecutor and the natural and necessary consequence of any comments or questions on the jury?

[00:15:26] Speaker 01:
We don't get to step two in this case because there was no partial silence.

[00:15:31] Speaker 01:
All of the challenge statements or questions on cross-examination and statements during closing all go towards the age of Sammy Joe underscore F 13.

[00:15:41] Speaker 01:
And that was the whole point of the interview.

[00:15:44] Speaker 01:
The defendant wants to couch it as what he believes, but it all goes to age.

[00:15:47] Speaker 01:
And even if it is what he believed about age, I was going to go to the quote, you went to Judge Holmes, and I would follow it up with that even after the, you know, said that, they then asked, should you have turned around?

[00:16:02] Speaker 01:
And he said, yeah, I should have.

[00:16:04] Speaker 01:
He clearly believed she was 13 with that comment, and he would not have said that if he did not believe it.

[00:16:10] Speaker 01:
So he was not silent on his belief.

[00:16:12] Speaker 01:
Yes, there's not a direct quote, I believe she was 13, but when do you ever have a direct quote on specific intent?

[00:16:20] Speaker 02:
Well, what was factually inconsistent about his statements to law enforcement versus his testimony?

[00:16:28] Speaker 01:
There's numerous inconsistencies, Your Honor, and it starts, and there was at least three things he then admitted to lying to officers about during the interview that then contradicted his testimony.

[00:16:38] Speaker 01:
One of the first lies is that he told Greenewalt he missed when she was 13.

[00:16:42] Speaker 01:
He admits that, no, he saw it, and apparently his new defense at the testimony during trial was not only he saw it, he was thinking all about it because he thought it was this kink that is completely inconsistent to the numerous lies he told both starting with the interview and then

[00:16:58] Speaker 01:
contradicted the testimony, because the interview he had first starts trying to say, she's 18, I only think she's 18.

[00:17:05] Speaker 01:
Then he's confronted with the statement, she told you she was 13, in the text message.

[00:17:11] Speaker 01:
Oh, if she did, I must have missed that.

[00:17:13] Speaker 01:
Another lie within the interview.

[00:17:15] Speaker 01:
Then eventually he admits, OK, she did say that.

[00:17:18] Speaker 01:
I saw it.

[00:17:19] Speaker 01:
I should have turned around.

[00:17:20] Speaker 01:
I didn't.

[00:17:21] Speaker 01:
Then that is completely contradictory to his testimony at trial, where he then says,

[00:17:27] Speaker 01:
I saw it.

[00:17:28] Speaker 01:
I didn't believe it.

[00:17:29] Speaker 01:
I thought it was this kink.

[00:17:30] Speaker 02:
I just thought I was going to... So if that's true, then when he's testifying at trial, it was an opportunity for counsel questioning him to accredit his prior statements to law enforcement and then confront him on inconsistencies.

[00:17:45] Speaker 02:
Where, when we look at the record, do we see that tried and true technique of cross-examination happen?

[00:17:52] Speaker 01:
I believe it is replete throughout the record, Your Honor, and the defense

[00:17:56] Speaker 01:
to make it appear that there was a Doyle error in this case has to very selectively quote the statements, never said, didn't say.

[00:18:05] Speaker 01:
But when you look at the quotes in their entirety, and I don't have time to go through every one, but one, for example, on page 495 of volume 3, this is the comment challenged, in your interview you never mentioned that you thought she was a college girl, did you?

[00:18:21] Speaker 01:
Estrada, no.

[00:18:22] Speaker 01:
Prosecutor, all right.

[00:18:24] Speaker 01:
You didn't say anything about thinking that the person might have thought it was a fantasy or kink to pretend to be a 13-year-old, do you?

[00:18:30] Speaker 01:
No.

[00:18:30] Speaker 01:
Once confronted with age, you admitted that you knew she was 13, but only once you were halfway, right?

[00:18:36] Speaker 01:
and that he doesn't fully admit that.

[00:18:38] Speaker 02:
Why aren't those first two questions that start, you never mentioned that you thought?

[00:18:43] Speaker 02:
In the interview, you don't say anything.

[00:18:45] Speaker 02:
And then you don't say anything about thinking again in the next question.

[00:18:49] Speaker 02:
Why don't those align almost perfectly with what this court just analyzed in the cases Key and Ward and said that is attempting to attack his credibility by what he's not or what he didn't say to law enforcement?

[00:19:03] Speaker 02:
In other words, his silence.

[00:19:05] Speaker 01:
First, because there is no silence, as I said, because he had spoken about these.

[00:19:10] Speaker 01:
And then I did.

[00:19:11] Speaker 02:
But that's not what our cases say.

[00:19:13] Speaker 02:
I mean, when you look at silence, it's not just he either makes a statement or he doesn't.

[00:19:20] Speaker 02:
It is, does he make specific statements when he talks to law enforcement?

[00:19:24] Speaker 02:
Does he address certain topics?

[00:19:26] Speaker 02:
And in his law enforcement interview, does he address the topic of his belief that these were college girls or the kink or anything?

[00:19:32] Speaker 01:
So yes, Your Honor, it is about the topics, whether there's partial silence on a topic or subject matter.

[00:19:39] Speaker 01:
And while he did not specifically talk about fantasy or kink, he was speaking about the topic and subject matter about the age and what he believed as previously discussed.

[00:19:50] Speaker 01:
And that is directly contradictory to him thinking it's a 19-year-old college girl and that it was a kink she said she was 13.

[00:19:58] Speaker 01:
And that is what the prosecutor I attempted to then point out.

[00:20:02] Speaker 01:
And while he didn't admit it, that was the manifest intention when trying to confront him with the inconsistencies between those two.

[00:20:10] Speaker 01:
And I'd point the court to Anderson when it says that two inconsistent descriptions of events may be said to involve silence insofar as it admit facts included in the other version.

[00:20:21] Speaker 01:
And that's what we have here.

[00:20:22] Speaker 01:
The interview is somewhat silent on kink in college girls.

[00:20:26] Speaker 01:
But that's because it is inconsistent for him to admit, eventually, that he knew she was 13, and then to testify, contrarily, at the trial that he thought it was called.

[00:20:36] Speaker 02:
How do you square this argument with Ward?

[00:20:39] Speaker 02:
I mean, in Ward, we specifically talk about this line of questioning gives rise to an inference that the defendant's guilty because an innocent person would have presented their entrapment theory to the arresting officers.

[00:20:53] Speaker 02:
Is that exactly on all fours of what we're talking about here?

[00:20:57] Speaker 01:
I don't believe so, Your Honor.

[00:20:58] Speaker 01:
Why?

[00:20:59] Speaker 01:
Because Ward is distinguishable.

[00:21:01] Speaker 01:
In Ward, he talked about participating in a violent shooting with another individual, but he was completely silent on the issue of the duress and participation of fears of his own safety.

[00:21:14] Speaker 01:
So then the prosecutor was commenting on silence by saying, didn't say because not true.

[00:21:20] Speaker 01:
And then this is a brand new story told for the first time.

[00:21:22] Speaker 01:
Those were comments on silence because there was silence on that particular issue in Ward.

[00:21:29] Speaker 03:
Well, there was silence on fantasy and kinks, right?

[00:21:32] Speaker 03:
And that's what you're raising in his trial testimony.

[00:21:35] Speaker 01:
But that was contradictory to his testimony or his interview

[00:21:40] Speaker 01:
when he then at first tries to just say, I didn't even see she said she was 13.

[00:21:45] Speaker 01:
OK, if she did say it, I missed it.

[00:21:48] Speaker 01:
And then eventually saying that she did say it, I first thought she was 18.

[00:21:55] Speaker 01:
Once she said it, I should have turned around.

[00:21:57] Speaker 01:
All of those are directly contradictory to and talking on the subject of that because the whole point of him saying it was a kink is him saying he believed it was a 19-year-old.

[00:22:08] Speaker 01:
was saying she was 13 as a kink.

[00:22:10] Speaker 01:
And at first he's trying to deny that she even said she was 13 during the interview.

[00:22:15] Speaker 01:
So he is speaking on that and it's inconsistent to then say during his testimony at trial, yeah, she said she was 13 and I saw it, but I thought it was a kink.

[00:22:24] Speaker 01:
He admitted to lying to officers when he said he didn't see that she said she was 13.

[00:22:29] Speaker 03:
And what is the limiting principle on this concept of

[00:22:32] Speaker 03:
the topics that you're talking about.

[00:22:34] Speaker 03:
I mean, if I say something about Sam Jay's age in the context of the interview, have I been spoken enough so that there is nothing else that I could say?

[00:22:46] Speaker 03:
There is no potential for silence in that interview if I mention her age at all?

[00:22:51] Speaker 01:
There's no bright line rule, I don't believe, Your Honor.

[00:22:55] Speaker 01:
What is very important in this case is then we are on plain air.

[00:22:59] Speaker 01:
And then it has to be clear and obvious.

[00:23:01] Speaker 03:
Yeah, it does.

[00:23:01] Speaker 03:
And we're going to get to that.

[00:23:02] Speaker 03:
But the point is to understand the legal construct in which we're dealing with.

[00:23:06] Speaker 03:
And that's why Judge Federico's comment about, well, this isn't the classic situation where these are the statements you made.

[00:23:12] Speaker 03:
And therefore, this is what you're saying now.

[00:23:16] Speaker 03:
And therefore, they're inconsistent.

[00:23:18] Speaker 03:
I mean, what you said is you did not say anything about x.

[00:23:23] Speaker 03:
Well, why isn't that commenting on the fact they didn't say anything about X, which is silence?

[00:23:31] Speaker 01:
So the prosecutor, I do believe I circled back the unchallenging with the inconsistent statement that on this particular one that we're talking about, once confronted with age, you admitted that you knew she was 13.

[00:23:42] Speaker 02:
I did contradict because- Well, you may have circled back to it, but I think part of the challenge here is you're not even conceded there's any error.

[00:23:52] Speaker 02:
And we can talk about prejudice, but whether you circle back to it in your examination, how does that cure whether you have already engaged in questioning where the clear inference that you're laying out for the jury is he didn't say this to law enforcement, therefore you can't believe his testimony?

[00:24:11] Speaker 02:
I just don't see how do you get around that?

[00:24:13] Speaker 01:
Respectfully, that wasn't my intent and not what I meant to say is that it's not saying he never said that so you know it's not true.

[00:24:20] Speaker 01:
He never said that.

[00:24:22] Speaker 02:
It doesn't matter what the questioner's intent is.

[00:24:24] Speaker 02:
When we read the record, what other inference was the jury to pick up on?

[00:24:29] Speaker 02:
There is no other, is there?

[00:24:30] Speaker 01:
Well, first, the question is the manifest intention of the prosecutor.

[00:24:35] Speaker 01:
That is the standard we are under.

[00:24:39] Speaker 01:
And then also, using never is a natural language to compare two statements.

[00:24:46] Speaker 01:
The defense attorney, and she doesn't do anything wrong, but on page one of the reply brief even does it saying that when you compare the two statements, Greenewalt never gave testimony.

[00:24:56] Speaker 01:
Rather, what Greenewalt testified was that there was two people like him.

[00:25:00] Speaker 01:
And I only bring that up to show that that is how people compare two statements.

[00:25:06] Speaker 01:
When you're discussing one statement and then another that are contradictory, it is natural to say, you never said this because you said it otherwise.

[00:25:16] Speaker 01:
And that was what I was doing here by using the words never did or didn't.

[00:25:21] Speaker 01:
It was because it was showing out the inconsistency by then what he did say contradictory to what he did say at the testimony in trial.

[00:25:30] Speaker 03:
Well, you were beginning to talk about prong to and clear or obvious error.

[00:25:34] Speaker 03:
Let's assume for the moment this is error.

[00:25:36] Speaker 03:
What is your best case for us to take the position that this is not clear or obvious error under our existing case?

[00:25:44] Speaker 01:
Assuming if there was any error, then going to the plain error analysis, it was not clear and obvious.

[00:25:51] Speaker 01:
And what I would encourage the court to do is compare this to the White case, which was recently, it's an unpublished decision, but from the 10th Circuit in September of 2025.

[00:26:01] Speaker 01:
And in that case, the defendant even did partially invoke silence as it related to a gun.

[00:26:07] Speaker 01:
He said he wouldn't answer any questions about a gun.

[00:26:10] Speaker 01:
And in that case, this court said that the defendant also asserted an affirmative duress defense for the first time at trial, but different than the defendants in Ward and Canterbury.

[00:26:22] Speaker 01:
Mr. White also gave inconsistent stories during his post-arrest interview at trial.

[00:26:28] Speaker 01:
And then when comparing all that in the statements of the prosecutor, found that this case falls in the middle of our prior cases, some finding Doyle air, some not.

[00:26:38] Speaker 01:
And for that reason, it presents a close call.

[00:26:40] Speaker 01:
In light of that, Mr. White has not established plain air.

[00:26:43] Speaker 01:
And when you compare that, I think this case is even more clear than White, because assuming it was wrong for me to say never and didn't, then the prosecutor was still circling back and constantly tying it to the inconsistencies under the umbrella of inconsistencies.

[00:27:02] Speaker 01:
And there was no partial silence.

[00:27:03] Speaker 01:
He certainly did not partially invoke his right to remain silent.

[00:27:07] Speaker 01:
And if there was any... Did he have to?

[00:27:10] Speaker 01:
The defendant in Canterbury, did he have to?

[00:27:12] Speaker 01:
No, he does not have to.

[00:27:13] Speaker 01:
I only bring that up to show the scale of where we are.

[00:27:17] Speaker 01:
And in White, and also in other cases in the circuit they talk about, it's not always even clear when they do partially invoke their right to remain silent.

[00:27:28] Speaker 01:
And then clearly, as stated in Canterbury and Ward, they do not have to.

[00:27:32] Speaker 01:
If they are partially silent on topic, the prosecutor clearly cannot use that

[00:27:37] Speaker 01:
to then infer guilt from partial silence.

[00:27:40] Speaker 01:
But in this case, there was no silence.

[00:27:43] Speaker 01:
If there was any silence, it is certainly a close call.

[00:27:46] Speaker 01:
And it is not clear and obvious.

[00:27:49] Speaker 01:
And because of that, if we do even get to the plane error analysis, it is ambiguous, and there was no plane error.

[00:27:57] Speaker 02:
In his law enforcement interview, did he ever talk about college girls?

[00:28:01] Speaker 01:
No.

[00:28:04] Speaker 01:
So how is it a close call as to silence?

[00:28:07] Speaker 01:
So he didn't talk about college girls, because at first he does try and say that she was 18.

[00:28:13] Speaker 01:
But then by the end, he does admit, OK, yeah, she said she was 13.

[00:28:17] Speaker 01:
I should have turned around, and I didn't.

[00:28:20] Speaker 01:
And then he even writes an apology letter saying what I did was wrong.

[00:28:24] Speaker 01:
And by admitting then that she was 13, write an apology letter that is completely inconsistent with believing it's this 19-year-old college co-ed.

[00:28:33] Speaker 02:
And then in the closing argument, you argued to the jury

[00:28:38] Speaker 02:
First, he says he thought I was going to have a threesome with two college girls to you yesterday, referring to his testimony at trial.

[00:28:45] Speaker 02:
There was never any mention of college girls in the interview.

[00:28:47] Speaker 02:
Why isn't that, again, a clear inference that you're asking the jury to draw that had he thought that he was going to see college girls, he would have told the law enforcement investigators during his interview?

[00:28:59] Speaker 01:
So I have five seconds if I may go over to answer the question.

[00:29:02] Speaker 01:
Please do.

[00:29:03] Speaker 01:
This is, again, where I think the defense has to partially narrow and only point out that quote to make it look like air.

[00:29:10] Speaker 01:
But when it is looked at in the context of the complete transcript, it is clearly not.

[00:29:15] Speaker 01:
Because the full quote is, here you can see the story start changing as he starts realizing how much evidence there is against him.

[00:29:22] Speaker 01:
And then he acknowledges she did mention it, it being that she was 13.

[00:29:27] Speaker 01:
And then the challenge quote, if he truly believed this threesome fantasy with coeds, but he didn't really believe she was 13, why isn't he saying that?

[00:29:35] Speaker 01:
Instead, he's adjusting his story as more as he's confronted with more evidence.

[00:29:40] Speaker 01:
Because by saying that, what I'm really pointing out is his interview wasn't even consistent with itself.

[00:29:46] Speaker 01:
He was continually lying and adjusting his story as he was confronted with more evidence against him.

[00:29:52] Speaker 01:
And then even further, his testimony was inconsistent with his interview.

[00:29:56] Speaker 01:
So I did use the word never, but it was the manifest intent to highlight the inconsistencies, and that would have been the natural and necessary effect on the jury.

[00:30:08] Speaker 01:
And so for those reasons, I would ask that this court affirm the defendant's convictions.

[00:30:19] Speaker 00:
Thank you, counsel.

[00:30:20] Speaker 00:
Your Honor, I'll just make a few quick points.

[00:30:23] Speaker 00:
Any inconsistencies with respect to the timing he received the text wouldn't justify impeachment on other grounds.

[00:30:28] Speaker 00:
That's clearly explained in Ward, the footnote one of Ward.

[00:30:31] Speaker 00:
This case really is just like Canterbury, just like those cases.

[00:30:34] Speaker 00:
He told police he did something, but he didn't explain why he did it or fully explain it or what he was thinking.

[00:30:41] Speaker 00:
And that is exactly what happened here.

[00:30:43] Speaker 00:
I think it's on all fours.

[00:30:45] Speaker 00:
The government, of course, could make these arguments it's now making about what Mr. Strada's statements meant.

[00:30:50] Speaker 00:
It could argue that when you look at the statement, what he's really saying is he knew.

[00:30:54] Speaker 00:
But what it couldn't do is say, he never told you this before.

[00:30:58] Speaker 00:
Therefore, it's a lie.

[00:30:59] Speaker 00:
And then finally, I just want the support to look at, if you look at the context of the colloquy in volume 3, 495 to 496,

[00:31:08] Speaker 00:
Several, numerous questions in a row, all about silence with one exception.

[00:31:13] Speaker 00:
So I don't think this has been selectively misquoted.

[00:31:15] Speaker 00:
I think when you read this, the only way to interpret the questions and the argument together is they want you, or the government wanted the jury to infer his guilt from his silence.

[00:31:23] Speaker 00:
And for that reason, we ask for a new trial.

[00:31:24] Speaker 00:
Thank you.

[00:31:26] Speaker 03:
Thank you, counsel.

[00:31:28] Speaker 03:
Case is submitted.