[00:00:01] Speaker 05: Case number 22-3064, the United States of America versus Thomas Webster at balance. [00:00:07] Speaker 05: Ms. [00:00:07] Speaker 05: Brandenburg for the at balance, Mr. Goodhand. [00:00:10] Speaker 05: Good morning. [00:00:12] Speaker 05: Good morning. [00:00:25] Speaker 03: May it please the court, I'm Elizabeth Brandenburg for Mr. Webster. [00:00:29] Speaker 03: Good morning. [00:00:31] Speaker 03: This case was about bias. [00:00:34] Speaker 03: The bias of the chief complaining witness in this case, Officer Rathbun, was not permitted to be brought before the jury in this case, violating Mr. Webster's constitutional right to confront the witnesses against him. [00:00:54] Speaker 03: Officer Rathbun had been investigated for [00:01:00] Speaker 03: a officer involved shooting that took place shortly after some months after the events of January 6th. [00:01:11] Speaker 03: During the pendency of the investigation in preparation of this case for trial. [00:01:16] Speaker 03: Officer Rathbun remained under investigation while he was working with the government to develop the case. [00:01:25] Speaker 03: The government sought to restrict that information from being brought before the jury and it was discussed in briefs as well as in a pretrial conference. [00:01:38] Speaker 03: At that time, counsel brought up the concerns of the relevance of this information that the [00:01:50] Speaker 03: relationship between the U.S. [00:01:51] Speaker 03: Attorney's Office, the government, and the witness while they were preparing for case or for trial in this case could come into play in their investigation. [00:02:07] Speaker 03: The government has contended that this issue was waived at trial. [00:02:13] Speaker 03: Our contention is that it was not waived, that it was fully [00:02:17] Speaker 03: litigated pretrial and determined, especially in regards to the US Attorney's Office investigation of the officer. [00:02:27] Speaker 05: I'm looking at JA 824. [00:02:31] Speaker 05: And this was after it was disclosed that the investigation had been closed. [00:02:37] Speaker 05: And the government says, so there's no more. [00:02:41] Speaker 05: It was closed in his favor. [00:02:43] Speaker 05: No improper conduct found. [00:02:47] Speaker 05: So no reason for it to come in. [00:02:48] Speaker 05: The district court had previously said you could examine him about the fact that there was an investigation and that connection, or as you wanted to argue, that connection to the government. [00:03:02] Speaker 05: But once the investigation was resolved in the officer's favor, the government said we request you not be permitted to engage in 824 of the Joint Appendix. [00:03:15] Speaker 05: And the trial counsel said, I think the government's position is correct. [00:03:23] Speaker 05: So no longer sought to, said there's no longer any basis for me to do this and never tried to do it at trial. [00:03:34] Speaker 05: All the district court said after government said no and defense counsel said, I think the government's right was all right. [00:03:44] Speaker 05: So where is the district court ruling excluding testimony? [00:03:51] Speaker 03: At that point in trial, Your Honor, the only issue that was still pending was the question of the investigation of the officer by the Metropolitan Police Department. [00:04:08] Speaker 03: And we contend that the U.S. [00:04:10] Speaker 03: Attorney's Office investigation was argued and determined before trial and had been determined at that point. [00:04:18] Speaker 03: That counsel had argued about the relevance of it, that the government, the very same entity investigating and prosecuting the case had investigated the officer involved. [00:04:33] Speaker 03: At the time of trial, [00:04:34] Speaker 03: Or at the time of the pretrial hearing that that when that conversation took place, the MPD is the one I'm talking about or the one you're talking about. [00:04:42] Speaker 03: I make sure the the one you're talking about the MPD investigation was pending or thought to be pending at the time of the pretrial hearing by the time of trial. [00:04:53] Speaker 03: it was determined and discovered that it was no longer pending. [00:04:57] Speaker 05: That's what I'm talking about. [00:04:58] Speaker 03: Yes. [00:04:58] Speaker 05: And at that point, as I read the transcript, government said, there's no reason to allow inquiry now because there was no misconduct. [00:05:10] Speaker 05: It was resolved in his favor. [00:05:11] Speaker 05: There's no evidence of misconduct. [00:05:14] Speaker 05: And Mr. Monroe, trial counsel for the defendant at the time for Mr. Webster says, I think the government's position is right here. [00:05:22] Speaker 05: And I think the government's position is correct. [00:05:29] Speaker 05: Having previously been told by the district court, you can ask questions. [00:05:32] Speaker 05: And so the district court didn't really just said, government said, we don't think you can do it. [00:05:40] Speaker 05: Defense attorney said, the government's right. [00:05:43] Speaker 05: And district court said, all right. [00:05:45] Speaker 05: I think the parties that sort of resolved it and there was no longer an issue. [00:05:49] Speaker 05: So that's why I'm trying to find where in the record is the ruling post this discussion that you say the district court erred, where the district court erred. [00:05:59] Speaker 03: There is not a ruling at trial beyond what your honor has described. [00:06:07] Speaker 03: The distinction I'm making is between the two investigations. [00:06:10] Speaker 03: The US attorney's office investigation, which was complete at the time, [00:06:14] Speaker 03: of the pre-trial hearing and the MPD investigation, which was not thought to be complete at that time. [00:06:22] Speaker 03: And so that was the only pending issue leading into trial was the admission of the pending investigation. [00:06:29] Speaker 05: The MPD one? [00:06:30] Speaker 05: Yes. [00:06:31] Speaker 05: And that's the one that counsel said, the government's right, nevermind. [00:06:35] Speaker 03: Yes. [00:06:37] Speaker 03: Okay. [00:06:39] Speaker 03: Our contention is that it wasn't waived because it was preserved in the pre-trial hearing, but even if it was waived, that council was ineffective in that. [00:06:48] Speaker 05: Okay, but where is, why isn't it a waiver or at least a forfeiture? [00:06:55] Speaker 05: I'm not sure it matters for these purposes, what the difference, which label you want to put on it. [00:07:04] Speaker 05: Why, where is there any objection? [00:07:06] Speaker 05: I mean, the council clearly gave up [00:07:09] Speaker 03: The issue to why isn't this at least forfeiture of not wavering counsel gave up the issue in regards to the MPD investigation had been previously argued in regards to the US Attorney's Office investigation and that having been determined to determine not admissible at the pre trial hearing. [00:07:27] Speaker 05: So the district court said that it was OK to ask about the fact of the investigation, the linkage without going into the merits. [00:07:33] Speaker 05: Correct. [00:07:34] Speaker 05: The investigation. [00:07:35] Speaker 03: The pending investigation, the still pending investigation at that time. [00:07:39] Speaker 03: That was the only question still open for determination going into trial. [00:07:45] Speaker 03: So our contention is both investigations should have been allowed to be delved into, but there is a distinction in the preservation between the U.S. [00:07:54] Speaker 03: Attorney's Office investigation and the MPD's investigation. [00:07:58] Speaker 05: Where is the district court ruling, where in the record is the district court ruling on the, so you're only arguing now about the U.S. [00:08:03] Speaker 05: Attorney investigation. [00:08:04] Speaker 03: Not only, but I recognize that there is a difference between the preservation of those two investigations and the issue. [00:08:15] Speaker 05: Where's the district court ruling on the US attorney? [00:08:21] Speaker 03: It's not in so many words, I will admit to that, but on GA 233 is the discussion of [00:08:33] Speaker 03: where the council argued the relevance of that U.S. [00:08:39] Speaker 03: Attorney's Office investigation and the court focuses more on [00:08:45] Speaker 03: the nature of the pending investigation or that the investigation itself is pending, the one that is pending. [00:08:51] Speaker 05: But it's the same. [00:08:52] Speaker 05: It's the same. [00:08:53] Speaker 05: You can talk about, you can ask about. [00:08:55] Speaker 05: So is your argument here that the court erred in not letting you get into the merits, because the district court said you can ask about the investigation? [00:09:03] Speaker 03: No, Your Honor. [00:09:05] Speaker 03: The contention is not that the merits should have been gotten into, but the question that should have been allowed was, [00:09:13] Speaker 03: Have you been under, during the pendency of this prosecution of this case, have you been under investigation by the U.S. [00:09:20] Speaker 03: Attorney's Office? [00:09:22] Speaker 05: Yeah. [00:09:22] Speaker 05: Where did the district court say you can't ask that question? [00:09:24] Speaker 03: What? [00:09:25] Speaker 03: I'm sorry? [00:09:25] Speaker 05: Where did the district court say you can't ask that question? [00:09:28] Speaker 03: The district court does not say that directly. [00:09:31] Speaker 05: Where does the district court say it indirectly? [00:09:33] Speaker 03: My side. [00:09:34] Speaker 05: Is it district court error? [00:09:36] Speaker 05: You're arguing for district court error. [00:09:38] Speaker 03: Yes. [00:09:38] Speaker 03: Yes, Your Honor. [00:09:40] Speaker 03: My notes say that's at 233. [00:09:45] Speaker 03: The council had argued that he was, and I quote, not casting aspersions to the Department of Justice, but they've been very assertive in making sure that their relationship with Rathbun and them having conduct have cleared him in a separate shooting and his role in this case not being made part of public consumption. [00:10:05] Speaker 03: I think the public needs to know, just like the jury in this case would know, that there may have been a process in play where the Department of Justice clearing this officer [00:10:14] Speaker 03: because of his role in this case. [00:10:16] Speaker 05: I don't see that on 233. [00:10:16] Speaker 05: But what I do say on 232 is the court saying, I don't disagree with that, except you don't get to ask him about the nature of the investigation. [00:10:25] Speaker 05: You just get to ask about the fact of investigation. [00:10:28] Speaker 03: Yes, Your Honor. [00:10:29] Speaker 05: And so what was the error in the district court saying? [00:10:32] Speaker 05: You can ask about cross-examine about the fact of an investigation. [00:10:37] Speaker 05: You just can't get into the nature of it. [00:10:41] Speaker 03: I see my time is run. [00:10:42] Speaker 03: May I ask? [00:10:43] Speaker 03: The error was not allowing the investigation into what the US Attorney's Office had been investigating the officer. [00:10:56] Speaker 05: Again, where did the? [00:11:00] Speaker 03: The quote I just provided was on 229. [00:11:05] Speaker 03: And the court conflated the [00:11:11] Speaker 03: to investigations as well as concentrated more on not getting into the merits, which was was part of the discussion, but is not part of our contention of what should have been allowed. [00:11:23] Speaker 05: District Court was given one answer and that is you can ask about investigations, but you can't disclose to the jury what the underlying substance is because of the potentially prejudicial impact. [00:11:36] Speaker 03: The court's ruling was that the pending investigation could be gone into about potential bias, not as to the completed investigation. [00:11:48] Speaker 04: Thank you. [00:11:49] Speaker 04: With respect to your challenge to the jury instructions, these were jointly proposed and agreed to by Defendants' Council. [00:11:58] Speaker 04: So why isn't that invited error in this case, where the instructions were agreed to between the parties? [00:12:08] Speaker 03: It's not invited error in that there's no evidence that it was part of trial counsel's strategy to [00:12:17] Speaker 03: to induce the error or even recognizing that there was an error to be had. [00:12:25] Speaker 03: The problem with the jury instructions was begun with the indictment in this case and how it put both ways of violating 111 through A1 and through subsection B into one count. [00:12:47] Speaker 03: Our contention is that while that may be permissible, that contributed to the confusion in this case in both providing the charges to the jury and also contributing to the constructive amendment that amounted from the jury charges. [00:13:08] Speaker 00: force, force government to prove something more than what they had to prove is to get a conviction. [00:13:16] Speaker 00: How exactly does that harm your client? [00:13:19] Speaker 03: Well, that the additional are requiring both the elements from a one, right? [00:13:26] Speaker 03: Correct. [00:13:28] Speaker 03: But more than just that, the jury instruction [00:13:34] Speaker 03: did not, or it was not as specific as the indictment was as to what was the instrumentality of a deadly or dangerous weapon. [00:13:43] Speaker 03: And that has been found by the cases I cited from the 11th Circuit that this court has examined previously in Brown, that going from a specific indictment to a more broad allowance in the instruction amounted to a constructive amendment. [00:14:04] Speaker 03: In this case, flagpole was in the indictment and was not in the jury instructions. [00:14:10] Speaker 03: And there was evidence presented that could have supported other instrumentalities having been a deadly or dangerous weapon. [00:14:16] Speaker 05: Is your objection not to the extra element, but simply that the jury instructions didn't say flagpole is the deadly weapon? [00:14:24] Speaker 03: It's both. [00:14:24] Speaker 03: They go together. [00:14:25] Speaker 03: Contributed. [00:14:26] Speaker 05: I'm not sure they do. [00:14:27] Speaker 05: That's why I'm trying to understand why they do. [00:14:32] Speaker 05: You're saying sorry the constructive amendment was that it allowed some deadly weapon, other than the flagpole the jury instructions is that so but it's not then it's not an extra element thing it's simply. [00:14:45] Speaker 05: specific to General, as you said. [00:14:47] Speaker 03: We've raised it both ways, that the instruction was erroneous both for adding the extra element and in constructively amending the indictment in the specificity. [00:14:57] Speaker 05: Was there any evidence put into the record or any argument made by anybody that there was any weapon implicated in this case other than the flagpole? [00:15:10] Speaker 03: Argument no, but evidence if the evidence existed as to when. [00:15:16] Speaker 03: Hands were placed on officer and that and presented the cases that support that hands your body can be a deadly dangerous weapon as well as when. [00:15:30] Speaker 05: But no one argued to the jury that the deadly weapon here was hands. [00:15:34] Speaker 03: No, no one argued to that, to the jury of that. [00:15:37] Speaker 05: But the evidence was presented to the jury and the addition of the... The hands had to be presented because there's also the contact, the physical contact with the officer. [00:15:47] Speaker 03: Correct. [00:15:48] Speaker 03: That evidence was presented as part of the assault. [00:15:52] Speaker 03: The extra element that was added [00:15:58] Speaker 03: contributes to the confusion in that regard because the jury is looking at when the physical contact took place and when, you know, whether a deadly or dangerous weapon was being used. [00:16:13] Speaker 03: And that exacerbated the issue with the specificity and the broadness versus the indictment versus the actual jury instruction. [00:16:29] Speaker 00: On the waiver, can you point me to where in your briefs you distinguished between the MPD investigation and the U.S. [00:16:40] Speaker 00: Attorney's Office investigation? [00:16:43] Speaker 03: In our brief on page five and six, the quote that I read earlier and another quote from counsel and his concentrating on the issue of the DOJ's investigation. [00:17:00] Speaker 03: is where we discuss that. [00:17:03] Speaker 00: And then you're limiting 824 to MPD. [00:17:07] Speaker 00: That's where we get it. [00:17:10] Speaker 00: The waiver on 824. [00:17:11] Speaker 00: Yes. [00:17:12] Speaker 00: Okay. [00:17:12] Speaker 00: Yes, your honor. [00:17:13] Speaker 00: I understand. [00:17:14] Speaker 00: Thanks. [00:17:17] Speaker 05: Thank you very much. [00:17:18] Speaker 05: Thank you. [00:17:18] Speaker 05: A couple minutes on rebuttal. [00:17:32] Speaker 02: Good morning, Your Honors. [00:17:33] Speaker 02: May please record David Goodham for the United States. [00:17:36] Speaker 02: Turning to the issue of the cross-examination, we do think that the defendant has waived that issue and wasn't simply forfeiture. [00:17:47] Speaker 02: Does it matter? [00:17:50] Speaker 02: It doesn't. [00:17:51] Speaker 02: It doesn't. [00:17:52] Speaker 02: It could be invited error, too, right? [00:17:56] Speaker 02: It could be to the extent that I think you read the argument starting at page. [00:18:05] Speaker 02: Um, 230 J a 2 35 all the way to J a 2 35. [00:18:10] Speaker 02: I think you read that argument is the court actually understood. [00:18:14] Speaker 00: I mean, I know council is now drawing a distinction between if we put aside for the sake of argument, the MPD versus USA. [00:18:23] Speaker 00: Oh, yes, which feels new to me. [00:18:26] Speaker 00: But we put that aside. [00:18:27] Speaker 00: The statement on 8 24 is the government's position is correct. [00:18:31] Speaker 02: Yes, and I do think that equals invited error. [00:18:36] Speaker 02: But one final thing I'll say on this distinction between the two, that is pending versus completed. [00:18:42] Speaker 02: I look at JA 233, and I see the court saying to defense counsel, I heard you suggest that you want to ask him, there's a pending use of force investigation. [00:18:54] Speaker 02: So to the extent there might have been some ambiguity about what defense counsel was [00:18:59] Speaker 02: asking for during that colloquy. [00:19:01] Speaker 02: I think the court understood he was asking about the pending investigation. [00:19:05] Speaker 02: And in fact, you will see in that same 10 pages, the defense counsel asked for a continuance. [00:19:11] Speaker 02: You know what? [00:19:12] Speaker 02: We should just wait for this all to play out. [00:19:14] Speaker 02: And then we can determine if there was any finding of wrongdoing. [00:19:19] Speaker 02: So anyway, my core point is I don't think the court understood the distinction that's being drawn here, number one. [00:19:25] Speaker 02: Number two, [00:19:27] Speaker 02: We think it is an invited error, certainly with respect to the MPD investigation. [00:19:31] Speaker 02: Number three. [00:19:31] Speaker 05: How can it be invited error if there was no district court ruling? [00:19:35] Speaker 02: Well, there is a district court ruling, Your Honor. [00:19:37] Speaker 05: No, the district court is all right. [00:19:40] Speaker 02: There are two rules. [00:19:42] Speaker 02: Oh, well, you mean with respect to the MPD investigation. [00:19:45] Speaker 02: Yeah, well, I think that, to my mind, that amount. [00:19:49] Speaker 05: There's no court rule. [00:19:50] Speaker 05: It's just the party has sort of worked it out. [00:19:53] Speaker 02: Under I understood. [00:19:54] Speaker 02: I think, you know, in context, the court understood that the battle was about the pending MPD investigation. [00:20:01] Speaker 02: The parties work it out and the court agrees that now that it's no longer pending, there's no bias. [00:20:07] Speaker 05: I don't think the district court was making a legal ruling at all. [00:20:10] Speaker 05: That's why I'm just confused about the invited error. [00:20:12] Speaker 02: I understand. [00:20:13] Speaker 05: I understand. [00:20:15] Speaker 05: I understand. [00:20:16] Speaker 05: I wouldn't doubt an error. [00:20:17] Speaker 05: Not only is there no error by the district court, there's no ruling. [00:20:21] Speaker 05: You have to have a ruling. [00:20:23] Speaker 02: Sure. [00:20:24] Speaker 02: And if this court disagrees, it's really easy. [00:20:26] Speaker 05: You think all right is a ruling? [00:20:28] Speaker 02: I think in context, given the battle back and forth between the parties at that equal. [00:20:33] Speaker 05: There wasn't a battle at that point. [00:20:34] Speaker 05: There was agreement between the parties at that point. [00:20:38] Speaker 02: And the court signed off on it. [00:20:40] Speaker 02: But again, you know. [00:20:41] Speaker 05: You've agreed you can't ask, and you've agreed you can't ask. [00:20:45] Speaker 05: I don't think saying, all right. [00:20:46] Speaker 05: Sure, I don't want to put. [00:20:49] Speaker 05: I don't want to read to my district courts words and start declaring it a ruling of any sort when parties has sorted something out and they go, OK, no, you can't. [00:21:00] Speaker 05: I agree. [00:21:01] Speaker 05: I can't. [00:21:01] Speaker 05: All right, let's move on. [00:21:04] Speaker 02: I understand. [00:21:05] Speaker 02: And certainly. [00:21:07] Speaker 00: I mean, maybe I'm gilding the lily too much. [00:21:10] Speaker 00: I mean, my instinct was the government's position is correct, is a stronger dissociation than just we're not pursuing this issue. [00:21:22] Speaker 02: Sure, sure. [00:21:23] Speaker 02: And certainly reasonable minds can disagree, but the core point here is even if we get passed waiver and we're in the forfeiture context and we're in plain error context, [00:21:34] Speaker 02: It's impossible, I think, to understand that this amounted to either obvious here, but more critically, that it was substantially prejudicial. [00:21:44] Speaker 02: And to the extent that we're talking about prongs three and four here, I would just direct the court to the body-worn camera footage from Officer Rathbun. [00:21:54] Speaker 02: But more particularly, I would direct the court to the [00:21:56] Speaker 02: District Court's description of that body-worn camera footage, and that's during the sentencing at JA 1907, the court says, I've seen that video more than probably anyone, and I still remain shocked. [00:22:10] Speaker 02: The video speaks for itself. [00:22:12] Speaker 02: You were the first aggressor, no doubt about it. [00:22:14] Speaker 02: You were the one who was taunting the officer, no doubt about it. [00:22:17] Speaker 02: You were the one with extraordinary force who brought down that flagpole. [00:22:21] Speaker 02: You took him to the ground, and that's all JA 1907. [00:22:24] Speaker 02: My point being that, [00:22:26] Speaker 02: Any incremental, minimal ammunition, if you will, that might have been gleaned via the cross-examination for bias off the Rathbun would not have substantially, the lack of it wouldn't have substantially prejudiced. [00:22:47] Speaker 02: Your Honor, I'd be happy to take additional questions. [00:22:53] Speaker 02: I wanted to clarify those facts on the record. [00:22:56] Speaker 05: I just had a question about the, I was brought up in the opening with the voir dire process. [00:23:04] Speaker 05: There's juror 1156 who said Mr. Webster is disadvantaged with him on the jury and he wouldn't start at zero zero or she, I can't remember, one, one, five, six gender. [00:23:17] Speaker 05: I'm not starting, I'm starting at zero zero, you're coming in disadvantaged. [00:23:22] Speaker 01: Sure. [00:23:23] Speaker 01: I'm sorry, go ahead. [00:23:25] Speaker 05: What I was just going to ask is, how can that possibly be someone who's allowed to get into the jury? [00:23:32] Speaker 02: A couple of things, Your Honor. [00:23:35] Speaker 02: If I might just get my transfer. [00:23:39] Speaker 01: I apologize. [00:23:40] Speaker 05: Sorry, I'm bringing it up. [00:23:46] Speaker 02: Most fundamentally, with respect to Juror 1156, and certainly I'm happy to talk about that sort of question. [00:23:57] Speaker 05: I'm just glad this person got through. [00:23:58] Speaker 05: Not only are you not starting with presumption of innocence, you're starting uneven ground with me. [00:24:04] Speaker 05: That seems very, very worrisome. [00:24:06] Speaker 05: I should have thought the government would say something like that. [00:24:08] Speaker 05: It just shouldn't be going into the jury pool at all. [00:24:10] Speaker 02: Sure, I understand. [00:24:11] Speaker 02: But my core point with Juror 1156 is, of course, he didn't sit. [00:24:16] Speaker 05: No, I get that. [00:24:17] Speaker 05: Okay. [00:24:18] Speaker 05: Asking about confidence in the, because the whole. [00:24:22] Speaker 01: Sure. [00:24:23] Speaker 05: I mean, I think the answer is let's trust the voir dire process. [00:24:27] Speaker 05: And it sure to me, at least on this concern. [00:24:29] Speaker 05: And I get your point that the person had said, I'm just asking how it was that the government even would allow someone into a jury pool when they say not even starting on an even plane, let alone presumption of innocence. [00:24:42] Speaker 02: Well, I think the answer is on JA 324 and 325, where the court says, would you have any trouble in acquitting the defendant if you determine the government had not carried his burden? [00:24:52] Speaker 02: Unequivocal no from the juror. [00:24:55] Speaker 02: Then at the next page. [00:24:56] Speaker 05: That doesn't deal with the starting point. [00:24:58] Speaker 05: That's the end point. [00:25:01] Speaker 05: And what it would take. [00:25:02] Speaker 05: for an acquittal if you're starting, if not starting at an even point is different. [00:25:06] Speaker 05: I don't think that answers. [00:25:08] Speaker 05: I'm not starting with presumption, but I'm not even starting with them on even playing field. [00:25:14] Speaker 02: Again, I think, you know, I also think the next page, JA 325, [00:25:23] Speaker 02: Could you evaluate, you know, the court goes through, could you set aside your voting history, your political affiliation, evaluate the evidence in this case against a legal... No, I'll set aside my political affiliation is, again, not the same thing as saying I agree that I start with a presumption of innocence. [00:25:41] Speaker 02: I understand the court's concern, certainly. [00:25:46] Speaker 02: Again, there's substantial deference that is assigned to the district court's assessment of the responses. [00:25:55] Speaker 02: There's demeanor. [00:25:56] Speaker 02: There's a question of candor. [00:25:57] Speaker 05: I don't believe in the presumption of innocence, but the government's view is that persons should still go into the jury pool. [00:26:02] Speaker 02: I'm not sure that I... They didn't even start on an even plane? [00:26:06] Speaker 05: Either not start in 0-0, I think were the words. [00:26:09] Speaker 05: Well, you know, and again, that the most do you understand my misunderstanding that language is you are starting at a disadvantage. [00:26:15] Speaker 05: You are not starting at zero zero, which I take to be a level playing field. [00:26:20] Speaker 05: And of course, the law is not even a level playing field. [00:26:23] Speaker 05: It's an unlevel playing field against the government presumption. [00:26:28] Speaker 01: Sorry, I'm just looking for the the actual language. [00:26:45] Speaker 05: I think it was 330 or 331. [00:26:48] Speaker 02: I'm sorry, 330. [00:26:49] Speaker 05: I don't think this is like a 0-0 game to start. [00:26:57] Speaker 01: Right. [00:26:58] Speaker 05: Could you start from a presumption of innocence? [00:27:01] Speaker 05: I honestly don't think so. [00:27:04] Speaker 02: Sure. [00:27:05] Speaker 02: And part of this emanates from the fact that the defense counsel asked, [00:27:11] Speaker 02: Would my client be disadvantaged if you concluded that he was? [00:27:14] Speaker 05: And there was a direct answer that I can't start from a presumption of innocence. [00:27:18] Speaker 02: But then you look at when the court asks, and this is JA 330, what do you mean by disadvantage? [00:27:23] Speaker 02: And the juror says, I still presume the defendant to be innocent until the government proves their case. [00:27:31] Speaker 02: So to my mind, any ambiguity relating to disadvantage, and that clarified it. [00:27:42] Speaker 02: Substantial deference is due the district court in assessing on the whole colloquy, whether or not the juror is in fact willing and able to adhere to the rules and or be fair and impartial. [00:27:56] Speaker 02: But even putting aside that deference and even putting aside perhaps the ambiguity in this colloquy, again, the bottom line here is that that juror didn't end up sitting. [00:28:05] Speaker 02: And the court in skilling was very clear. [00:28:08] Speaker 02: If a juror does not sit, even if you used a peremptory, that missing peremptory does not equal a violation, a constitutional violation in partial jury. [00:28:21] Speaker 05: All right. [00:28:21] Speaker 05: Thank you very much. [00:28:23] Speaker 02: Thank you, your honors. [00:28:23] Speaker 02: We would ask that you affirm the judgment and conviction. [00:28:30] Speaker 05: Ms. [00:28:30] Speaker 05: Freidenberg, we'll give you two minutes. [00:28:39] Speaker 03: Thank you, your honor. [00:28:41] Speaker 03: I first would like to speak as to the last conversation about [00:28:48] Speaker 03: this disadvantaged juror. [00:28:50] Speaker 03: That's kind of how I call him shorthand. [00:28:54] Speaker 03: The only question that this juror answered that was the saving grace for the court in denying the challenge for cause was would he have trouble [00:29:12] Speaker 03: And the court asked this question at least 23 times of different jurors. [00:29:16] Speaker 03: And this is a very problematic question. [00:29:19] Speaker 03: If the government carried its burden beyond a reasonable doubt, whether the juror could still or failed to carry the burden beyond a reasonable doubt, whether the juror could acquit the defendant. [00:29:32] Speaker 03: This is a question based on a false premise. [00:29:35] Speaker 03: Because a biased juror doesn't have [00:29:39] Speaker 03: trouble acquitting someone when the government has not carried its burden. [00:29:43] Speaker 03: A biased juror would determine in the first instance that the government had carried its burden. [00:29:49] Speaker 03: The question asks the juror to assume that the government has carried its burden and then, or I'm sorry, not carried its burden. [00:29:59] Speaker 03: It's a confusing question. [00:30:02] Speaker 03: At least two jurors had [00:30:04] Speaker 03: We're confused by a one pointing out that question is a challenge on appeal. [00:30:08] Speaker 03: Well, I did raise the question or put in our brief that that question was asked. [00:30:15] Speaker 03: The and it contributes to the. [00:30:19] Speaker 03: What we've raised with at the that this advantage juror who said that the defendant would be at disadvantage with him. [00:30:27] Speaker 03: What should have been struck and that that question permeated [00:30:33] Speaker 03: We're asking the court to look at it that that question is problematic in and the court in denying the motion for cause even said that's what I'm looking for when the answer to that question. [00:30:47] Speaker 03: It's it's a rote rehabilitation of the juror. [00:30:50] Speaker 00: Suppose it were. [00:30:51] Speaker 00: Assume for the sake of argument that juror should have been stricken for cause. [00:30:59] Speaker 00: What do you do with skilling and the other cases saying it doesn't matter if you elect to use a peremptory and that juror doesn't sit? [00:31:13] Speaker 03: Well, I raised that question because that question is how that juror did get into the jury pool, the answer to that question. [00:31:22] Speaker 03: And that question was asked of at least three jurors who did get onto the jury when discussing their previous exposure to the media coverage in this case. [00:31:35] Speaker 03: So the asking of that question did contribute to actual juror members [00:31:42] Speaker 03: being placed on the jury. [00:31:44] Speaker 03: Uh, and it shows that this was not the full thrifting, uh, why deer that was described in skilling, uh, where the court was trying to get at the bias, uh, of jurors and the potential bias of jurors due to their exposure to pretrial media coverage. [00:32:05] Speaker 00: In this case, the turn that you challenged [00:32:10] Speaker 00: Correct me if I'm wrong. [00:32:11] Speaker 00: I thought you challenged the seating of jurors 813 and 19, correct? [00:32:18] Speaker 00: Yes, and I apologize. [00:32:19] Speaker 00: So we just look at those colloquies and make a judgment whether those jurors were biased, right? [00:32:29] Speaker 03: Well, I think the court looks at the entire voir dire to see if it was so infected that it didn't overcome the [00:32:40] Speaker 03: the prejudice that existed in the veneer that the citizens of the district were faced with in having been in the district and inundated with the media coverage of the events of January 6. [00:32:58] Speaker 03: We would ask the court to overturn the defense case. [00:33:03] Speaker 05: Thank you very much. [00:33:04] Speaker 05: Thank you. [00:33:04] Speaker 05: The case is submitted.