[00:00:02] Speaker 01:
Case number 25-3035, United States of America appellant versus David Jeremy Zobel. Mr. Coleman for the appellant, Mr. Kramer for the appellee.

[00:00:12] Speaker 03:
Good morning, Mr. Coleman. You may proceed whenever you're ready.

[00:00:16] Speaker 02:
Good morning. Thank you, Your Honor. May it please the court, Nick Coleman for the United States. Before I forget, I'd like to reserve two minutes for rebuttal, please.

[00:00:25] Speaker 02:
Before addressing the merits in this case, I think it's important to address the timeliness issue. Obviously, that's a threshold issue. This appeal is timely as to all categories of evidence, which the district court excluded in this case. But I think it's helpful, as we explained in our brief, to sort of look at each category separately because I think that helps make this issue easier.

[00:00:48] Speaker 02:
We call them buckets. There's any other way that you can refer to them. The first such bucket, I think, Actually, as to the first two buckets, I think the time of this issue is pretty easy.

[00:01:00] Speaker 02:
The statements that Mr. Zobel made during the chats here and the photographs that he sent in which he referred to his prior offense, the district court did not even hint that it was going to exclude those until February 25th of 2025. The government filed its notice of appeal on March 18th of 2025, so that was well within the 30 days.

[00:01:21] Speaker 02:
That is also true as to the second bucket of evidence that was testimony by an FBI case agent and by Mr. Zobel's probation officer, in which the district court indicated, again, beginning in February 25th and at the next two hearings, that the evidence would have to be heavily sanitized so that essentially no reference at all to Mr. Zobel's prior conviction or the fact that he was on probation could be stated.

[00:01:52] Speaker 02:
Again, those rulings did not come until well within the 30 days of the government's notice of appeal. So that brings us, I think, to the final bucket here, which is the plea proffer details or the summary of them which the government sought to introduce. Now, the defense is certainly correct that the government initially moved to introduce those back in 2023.

[00:02:19] Speaker 02:
And the district court excluded them in its initial ruling in September of 2023. However, at that time, the district court indicated that it would revisit that issue if identity came to be challenged by the defense.

[00:02:36] Speaker 02:
When that, yes.

[00:02:37] Speaker 03:
If the chats and Mr. Is it Zobel or Zobel?

[00:02:43] Speaker 02:
I think it's Zobel, is my understanding.

[00:02:45] Speaker 03:
Mr. Zobel's own description of his prior criminal conduct and assertion that he had been convicted.

[00:02:56] Speaker 03:
If all that comes in, why is the plea proffer summary even needed?

[00:03:03] Speaker 02:
Well, I guess I'd step back and say this. If all you have are the chats in which a person is saying to the undercover officer, you know, from page one, I'm a middle-aged sex offender, and then he describes that he, you know, he had been convicted, he'd done 10 years, here are the things that I did to my, you know, to these girls before, one girl and then her friend. If all you had was that, And then you have a photograph which he sends, but he covers up his name and part of the case number to the undercover officer.

[00:03:33] Speaker 02:
If you just had that, you wouldn't know that that is Mr. Zobel. You'd need to know if you wanted to show that, in fact, was Mr. Zobel, you'd have to establish...

[00:03:43] Speaker 02:
You know, how did the FBI get to him? And in fact, the way that they did get to him was pulling up because they could see the ECF number. They could see the partial case number of the court it was entered into. They were eventually able to figure out what the judgment was that Mr. Zobel had sent. And there's his name. So that's why.

[00:04:00] Speaker 03:
That seems to support the premise of my question, which is if you had the chats and you had testimony by the FBI agents, officer, we, you know, yeah, the name was covered, but we were able to use the court, the date, the case number and find this individual, find the defendant. Then again, I'm trying to understand what more in that summary is probative, in part because Judge Leon was, you know, that was the first thing that he saw and that he reacted to as a duly prejudicial person.

[00:04:40] Speaker 02:
So I think the problem is, again, that even if you get in, say, that law enforcement testimony, like, yes, he was convicted of this offense, which I think was enticement of a minor, that still wouldn't put in the, in other words, how closely his conduct in that case, the 2011 case, matched what he told the undercover officer about what he'd done. So, again, that shows, you know, Mr. Zobel is sharing with the undercover officer not just the fact that he's been convicted, but also what he did.

[00:05:11] Speaker 02:
And it matches up very closely to what he told the undercover officer. So again, it is evidence of two, really three things. It is evidence of his identity because it shows that, you know, he is, it's not just that, you know, this is a person who's pulled up Mr. Zobel's conviction and is sending a copy of that judgment to the undercover officer. This is somebody who knows what he did in the case, first as to that. Second, it shows his intent to commit this offense, which is the attempted sexual exploitation of a minor, because he's taking this incredible risk and sharing his status as a sex offender with the undercover officer to gain his trust.

[00:05:49] Speaker 03:
That I follow. That's part of the offense conduct.

[00:05:53] Speaker 03:
So the premise of your answer just now was that Zobel himself might have been puffing. He might have been convicted of some other kind of less lurid and, you know, prejudicial, whether appropriately or not, conduct. And so it needs to be verified by the summary of the plea. I mean, he's saying what he did to the undercover.

[00:06:27] Speaker 03:
The person on the chat is saying.

[00:06:30] Speaker 02:
Right. I mean, yeah, it is possible that a jury can think, was he puffing? OK, in other words, did he actually your point? So, again, that's part of it. But I think it's also in addition, if he's going to challenge identity, if he's going to say somebody else was essentially impersonating.

[00:06:48] Speaker 02:
The more details that the person who is engaging in the chats is sharing about what the real Mr. Zobel actually did, the less likely it is that this is somebody who is impersonating Mr. Zobel.

[00:07:00] Speaker 00:
And the more those details match the actual facts of the offense, the more compelling that inference.

[00:07:07] Speaker 02:
Yes, that is absolutely correct, Your Honor. I think it also goes, again, under Rule 414.

[00:07:14] Speaker 02:
It also goes to show his sexual interest in young children. Remember, that particular offense, just the actual page that shows the thing that he was convicted of, it does show that he engaged in enticement of a minor. But it doesn't establish his sexual interest in young girls, which, yes, he expresses all of that during the chats. But this is what shows that it's not just a fantasy. I mean, that is one of the primary defenses. It was the defense in lieu.

[00:07:45] Speaker 02:
It has been the defense in many cases in which a defendant who is engaging in these chats online or communications with an undercover officer.

[00:07:54] Speaker 01:
So there's this evidence.

[00:07:58] Speaker 01:
He's indicted on three counts, right? Two distribution of child pornography counts as well. Yes.

[00:08:06] Speaker 01:
Are you contending that any of this evidence is admissible for those counts?

[00:08:12] Speaker 02:
Yes, it would be under Rule 414. Now, again, it would show his sexual interest in young girls.

[00:08:21] Speaker 02:
The fact is that among the details that, you know, the particular details which the government did seek to introduce from the prior offense was the fact that he'd uploaded, I think it was 61 sexually explicit images of child pornography. So, yes, it does show what Rule 414 permits.

[00:08:42] Speaker 02:
It does also show that, you know, that his distribution, you know, he intended to distribute child pornography, he was aware of the images that he was sharing with the undercover officer. So yes, we do think it is relevant to those two counts as well, but it is especially relevant, yes, to the ASEM count, in which there has to be, you know, it does have to be shown that he intended to get the undercover officer to create these new, or basically to perform child abuse where Mr. Zobel could actually watch it.

[00:09:12] Speaker 00:
The intent...

[00:09:14] Speaker 00:
Point seemed to me particularly important on count three. Yes. But the identity question went to all three counts. Oh, absolutely. Right. I mean, if he were going to say, sure, someone did all these things.

[00:09:29] Speaker 00:
sent all these criminal messages to the undercover. It just wasn't me.

[00:09:35] Speaker 02:
Yeah. And I think, you know, again, I think as to all of this evidence, you know, if we're now addressing the merits question, I think, you know, again, one of the problems, I think, with the district court's ruling is that you can almost see in the final rulings from the district court beginning in February, the court, I think...

[00:09:59] Speaker 02:
sort of sensed that it didn't really make much sense to exclude the plea proffer details once all of this chat evidence is coming in. And that's why the district court turns around and says, well, actually, you can't even admit those chat statements either, government, because that will interfere with my Rule 404 ruling. So I think the court itself sort of sensed that once those chats are admitted and once it's understood that they're properly admissible, You know, the cat's out of the bag at that point, and particularly given that Mr. Zobel, you know, although he has been very cagey, I think, you know, in all of those hearings starting in February about exactly how he was going to be challenging identity, it's clear he's going to be.

[00:10:43] Speaker 02:
He is not going to stipulate anything. He's not going to stipulate that it was him at all engaging in those chats. And because of that, yes, Your Honor?

[00:10:52] Speaker 03:
You said that it doesn't make much sense that you suspect that the district court kind of realized it didn't make much sense to preclude the summary of the chats were included. But another way of looking at that is that he intended from the beginning to preclude the references in the chats. And I know the government seems surprised by early 2025 that that's how he was reading it. But it's possible that he's saying I'm precluding.

[00:11:19] Speaker 03:
as unduly prejudicial any reference to the prior offense. And if that's right, then you may have a time limit.

[00:11:28] Speaker 02:
So all I can say is this. There is no hint in May of 2023 of the hearing on that motion or in September 2023. There is no hint there that the district court is saying that those chat statements are not going to come in. The government didn't hide them at all. If you look at its motion in limine, it said, here's all these chats, and we are seeking to introduce these plea property details because they corroborate them. We think it goes to both his identity and his intent.

[00:11:57] Speaker 02:
The trial, you know, the district court here said, I'm denying that motion. He said that he would reconsider if identity became an issue, but at no point, and I have looked and looked and looked, but he had never said that he was going to exclude those chat statements.

[00:12:12] Speaker 03:
Let me just focus in on the claimed legal error. So your claim is that the district court legally erred by treating a propensity inference as unfair, given 414, for the purposes of the Rule 403 balancing.

[00:12:33] Speaker 03:
That's sort of the core error. I mean, propensity 414 says propensity...

[00:12:38] Speaker 03:
Yes.

[00:12:40] Speaker 03:
In this type of crime. And yes, there's a balancing. But what the district court said was it sounded sort of like non 414 balancing under 403.

[00:12:53] Speaker 02:
I think that's right. I mean, I do have to say that in all fairness to the district court, if you look at how the district court approached this back in September of 2023, there is some language there I think from the district court that doesn't quite take into account the purposes of 414, which is the fact that this kind of propensity evidence is now admissible. But the district court is also, I think, expressing a concern that perhaps can come into play, which is that at time, it could be that the details of a prior offense are so intense that a jury could feel that, you know, would want to punish the defendant for that prior offense, would just be so offended by that.

[00:13:38] Speaker 01:
That's exactly what the district court said. Right. And that's why I think it's there. The district court never said that I see. I mean, tell me where in the transcript the district court says that this is improper propensity evidence. Where does the district court say it?

[00:13:58] Speaker 02:
So I do think that the court does refer to that, but I 100% agree with you, Your Honor, that the other concern is something that the district court stated.

[00:14:07] Speaker 01:
The district court says that this creates a great risk that the defendant will be judged based on his prior acts rather than the facts of the present case, January 269. Yes. That's the bottom line, right? I think that— And that's a proper— statement of how one is supposed to do the Rule 403 balancing, isn't it?

[00:14:28] Speaker 02:
And I think under, I would agree with you, Your Honor, that under Rule 414, that is still a permissible consideration for a district court. I think the problem becomes that once, you know, at that time, and again, we are not here today. There would be a time on this issue if we were appealing directly that ruling, okay? We didn't appeal that ruling at the time. The problem I think now is that at that time as well, though, the district court indicated that part of why it was ruling that way was because in that very same transcript, the court says, I have no reason to believe that Mr. Zobel will be contesting his identity.

[00:15:08] Speaker 02:
That changes, and it changes the calculus, and yet the district court does not engage in a new balancing.

[00:15:15] Speaker 01:
So that is the error, right?

[00:15:18] Speaker 01:
That you tell me the legal error that you believe the district court committed.

[00:15:27] Speaker 01:
It's that that the district court, once the new facts emerged, that identity would be an issue that the district court didn't conduct a new balancing act.

[00:15:37] Speaker 02:
Or rather, that I think that once it did, the court essentially said, I'm just going to exclude this, all of it, no matter what. And whether that's, again, I don't think it actually engages in any sort of new balancing test. As to the plea proffer details, again, this is only about this particular bucket, because that's the only thing that the district court ever really engaged in a Rule 403 balancing, back in September 2023.

[00:16:03] Speaker 02:
By the time we get to February and March of 2025, things have definitely changed. And the fact that Mr. Zobel is going to be so essentially will not concede anything and is going to say that, you know, essentially tell the jury they can't prove it was me.

[00:16:23] Speaker 02:
That's going to be the central defense. Then, yes, I think as the district court had promised back in 2023, it was incumbent on the court to reevaluate that.

[00:16:32] Speaker 01:
And in fact... Where does the district court... Is there a point in the transcript that you can point me to where the district court says...

[00:16:43] Speaker 01:
That he's not going to allow any of the chats to be introduced or where is the best articulation of the district court's ruling with respect to the chats?

[00:16:55] Speaker 02:
Yes. So I think if you look at...

[00:17:01] Speaker 02:
On the March 17th transcript, okay, first of all, at the very beginning, this is on A403 through 404, Judge Leon informs the government that he's got additional redactions now that he's going to assist on with the chat transcripts.

[00:17:22] Speaker 02:
And Judge Leon then on A414 says, I have been crystal clear that no reference to his prior conviction, no reference to his being on probation is to be made.

[00:17:33] Speaker 02:
And that was right after the government had asked Judge Leon to clarify if his ruling was that all references in the chats to Mr. Zobel's being a sex offender, having a prior conviction or being on probation must be redacted. So I don't. I think it was pretty clear what Judge Leon was saying there, which was that he did not think that any reference in the chats. I mean, that was why I think it was so difficult for Judge Leon to agree to even introduce the chat transcript to the jury as an exhibit, because it was going to have these big redactions on 15 pages of the 55.

[00:18:09] Speaker 01:
So...

[00:18:11] Speaker 01:
um i'm old enough to remember when people used to talk about race race just die as a part of the rules of evidence um and isn't isn't the chats i mean intrinsic evidence as opposed to other crimes evidence i mean if If I walk into a bank and hand the teller a note that says, you know, give me all the money or I'll kill you, and then the teller refuses, and then I say, you know, I've killed 10 people in the course of my life, and, you know, I'll make you number 11 if you don't give me the money.

[00:18:59] Speaker 01:
Is that other crimes evidence or is that just intrinsic evidence that's part of the crime?

[00:19:06] Speaker 02:
Oh, it's certainly intrinsic evidence.

[00:19:09] Speaker 02:
And I think I absolutely agree with you that the chat transcripts here are the offense conduct. I mean, all of this conduct occurred online. It's like if you watched a video of the crime. And yes, I absolutely agree with you.

[00:19:25] Speaker 01:
That's why I'm wondering why... Why...

[00:19:32] Speaker 01:
you're not arguing that like analyzing the chats as other crimes evidence at all, it was error.

[00:19:41] Speaker 02:
So again, I'm not sure that the district court really, I mean, I think the district court basically said he thought that he could remove all of those references and say, well, those are just extraneous to the crime. I think that was how the district court approached it. I mean, again, it's not very clear because he doesn't issue sort of a, a written or pre-written ruling. He just seems to say it and just seems to think that it was somehow a part or essentially required by his earlier ruling from a year and a half before.

[00:20:14] Speaker 02:
can say this, that yes, there is a way to look at this as sort of, you know, it is absolutely intrinsic to the crime. It was in fact part of the commission of the crime. And just like the bank robber wants to say, I've killed 10 people so that the person he's talking to will believe that he will do it. Here, Mr. Zobel wanted the undercover officer to really be sure that he was a safe person to do all this conduct with. So yes, I think rule 414 sort of makes that intrinsic extrinsic distinction not quite as significant now in the case of sex offenses.

[00:20:51] Speaker 03:
But I guess I mean, I agree with with Judge Wilkins question in the sense that in partly it's because the district court was looking at it all as extrinsic evidence of prior crimes. But once you it just seems to me that for you, especially given the ambiguity that your prior colloquy with Judge Wilkins covered, where on the one hand, it seems to me the district court.

[00:21:18] Speaker 03:
You know, sounds like he's putting aside the propriety of propensity, potential propriety of propensity evidence under 414. And then but but then also talks about, you know, this is this is more vivid and more potentially more. troublingly and gratuitously prejudicial, given the problems of the prior crime, ruling as maybe it's error, maybe it's not, that it's so important to your case.

[00:21:48] Speaker 03:
And you do brief this, but it feels like it's being downplayed. I guess all I'm trying to understand is, is it and why? What is the vulnerability for you? Because... You know, both for identification, but also for motive and intent to actually go through with it. You know, as you know, these cases, you know, one of the defenses is it was really fantasy. We were talking as if we were going to meet, but that's part of the heightened fantasy. You know, really, that's not what this was about.

[00:22:20] Speaker 03:
And that the prior crimes is, as he says, is relevant to my bona fides.

[00:22:26] Speaker 02:
So, look, we we think the chats come in. OK, all of them. They come in fully. There's no question whether one wants to think of this. And I think it absolutely the most direct way home. I would 100 percent agree is that they are just part of how he committed the crime. In fact, they're a vital part of how he committed the crime, because this you know, if he was trying to you, he was deploying. his status to gain the undercover's trust. So I don't, regardless of what way you want to think about this, is it really intrinsic to the offense and therefore we don't even need to think about 403.

[00:23:02] Speaker 02:
But again, 403 sort of says that you have to look at every bit of evidence. It's just that here, I think It's somewhat silly to say, is its probative value outweighed by its danger of unfair prejudice? The answer has to be absolutely no, because it is the crime. Now, once you take that as a given, once those chats are coming in and he's bragging to the undercover officer about his bona fides as a sex offender and what he's done in the past to gain his trust, and he's now at trial going to challenge identity, There are a lot of different now reasons why it is important to prove that what he was talking about was real.

[00:23:42] Speaker 02:
First of all, because it does show his identity. Second, because, again, he's exposing himself. He is really exposing himself to some problems. He's on probation, as he tells this undercover officer. This is how he pinky swears during the chats that he is not a cop. And this is how he's showing that. And the way that he's showing that is to say, I am a sex offender. I'm safe. I'm on probation.

[00:24:13] Speaker 02:
That kind of exposure shows how serious he was about committing this offense. He wanted these new images.

[00:24:19] Speaker 01:
So let's suppose we agree with all of that.

[00:24:27] Speaker 01:
Usually, you're on the other side of the table, and it's the defense who's saying, you know, there was an error in an evidentiary ruling, and the government is reaffirming the deference and all of that to say that, you know, we don't armchair quarterback second-guess district courts on these things.

[00:24:57] Speaker 01:
So let's suppose I agree with everything he said. Given the standard of review, why should we reverse? It says grave. We have cases that say grave abuse of discretion, not just regular abuse of discretion. Grave abuse of discretion.

[00:25:19] Speaker 02:
So I guess what I would say is there is...

[00:25:22] Speaker 02:
Obviously, there has to be a fair amount of discretion given to district courts. Nevertheless, I think it's also important to remember that Rule 403 is weighted towards the admission of evidence. So it should, in fact, be significantly harder to justify the exclusion of evidence, of relevant probative evidence, under Rule 403 than it is to admit it. I think, you know, this Court said that in lieu. You know, Rule 403 establishes a high barrier to justify the exclusion of relevant evidence, and that's why the probative value has to be substantially outweighed by unfair prejudice.

[00:26:00] Speaker 02:
I think, you know, again, you know, the Tenth Circuit has said that, you know, it's—it Exclusion should be an extraordinary remedy, which is used sparingly. And I think one of the best ways to put it is one of the cases we've cited in our brief, Rodriguez from the 11th Circuit says, in looking at 403 cases, you should look at the evidence in the light most favorable to its admission.

[00:26:24] Speaker 02:
I think that is why here, you know, again, this is not something that normally, yes, we're on the other side, and that's because we have the burden of proof, and so we're trying to admit evidence, and the district court will usually, under Rule 403, because it's weighted heavily in favor of admission, it will admit the evidence. There will be a challenge to that, and, you know, normally, the trial court is not going to have abused its discretion.

[00:26:51] Speaker 02:
I think, you know, again, it's also going to be true for the defense. If they're trying to admit evidence, say in this case, Mr. Zobel wants to introduce evidence about other people in his residence, he's going to have a fair amount of leeway to put that evidence in.

[00:27:06] Speaker 02:
He just is. And, you know, because, again, he's got to try to make whatever defense out he wants to make.

[00:27:15] Speaker 02:
But I think...

[00:27:17] Speaker 02:
think it's important to remember that although a district court has discretion, that discretion isn't a license to be arbitrary. It's not a license to sort of say, well, in this case, I'm going to keep it out, but I'm not going to necessarily clearly articulate the reasons for it, and I'm not even going to reconsider when one of the bases for my ruling, namely that I did not have any reason to believe that Mr. Zobel would contest his identity.

[00:27:40] Speaker 01:
The district court did reconsider and said that I still think that Like even with a limiting instruction that the prejudice is going to far outweigh the probative value, right?

[00:27:54] Speaker 02:
I'm not sure that he said that after he was asked to reconsider. I may be missing something right now. But I don't recall him sort of engaging in a lengthy discussion about the limiting instruction. He did talk about the limiting instruction in September 2023. I may be wrong about that. I don't remember any extensive discussion about a limiting instruction after February. I could be wrong about that right at this moment.

[00:28:21] Speaker 02:
I don't remember him going, however, into a sort of lengthy reconsideration. He did, I mean, talk about all the other ways that he thought that the government could show identity. We've described in our brief why we don't think that those are nearly as strong as the plea proffer details in showing that this was Mr. Zobel. They are all important and we intend to introduce them. But I think, again, it's also, you know, As the Supreme Court said in Old Chief, and I think as this court said in cases like Hartman and Liu, the government shouldn't have to so sanitize its evidence that it doesn't show what really happened and sort of what was really going on in this case.

[00:29:04] Speaker 00:
Do you think the district court committed discrete legal errors embedded in its analysis, or do you think mainly that the court just abused its discretion in conducting the balance?

[00:29:23] Speaker 02:
I do think that it's I do think that even in September 2023, that the district court may have been overly focused on the propensity evidence without- Impermissibility of a propensity inverse. If you look at the district court's hearing that it held in May of 2023, the district judge referred to his time, I think in the Southern District, he said that his approach to other crimes evidence comes from his experience as an AUSA.

[00:29:57] Speaker 00:
So if we agree with that and conclude that there's a legal error embedded in the analysis, why would we reverse outright and order admission of the evidence rather than just laying bare the legal error and remanding for the district court to redo the balance under the correct legal standards?

[00:30:26] Speaker 02:
We think this court, obviously this court could do that.

[00:30:30] Speaker 02:
We do think, as we've explained in our brief, why we think the evidence is just flat out admissible and that we don't think that in this case, particularly given the defense that Mr. Zobel is proposing to put on, however he's going to do it, but given that he's going to contest his identity, it's hard to see how a proper Rule 403 balancing, particularly since it's weighted in favor of admission, could come out the other way.

[00:30:56] Speaker 00:
I agree with you writ large, but there still could be a fair amount of discretion to just sanitize one or two ticks more. You look at the...

[00:31:11] Speaker 00:
You look at the summary of the past offense and you all took out some of the salacious details the first time. You took out a few more details the second time. Maybe he can take out one or two more without excluding it. And same questions of degree for the chaps.

[00:31:32] Speaker 02:
so i think as to the chats i don't think that that would be permissible um i'm not aware of it not not even some i don't think so your honor i have not i have not found a case in which i mean and you know again i haven't been able to do an exhaustive summary of every federal case out there but i have not found a case where a court excluded the boasts made by a defendant during the commission of the charge defense where the person is boasting about prior offenses in furtherance of the new offense.

[00:32:04] Speaker 02:
I don't see why that, I just don't see why that, you know, is something where, you know, and again, I think this goes back to the fact, this is part of the commission of the new offense.

[00:32:16] Speaker 01:
But to answer Judge Katz's question, can you give me any case from our circuit where we have compelled the introduction of evidence that was excluded before, rather than remanding for the district court to correct whatever legal error, which was the basis of the abuse of discretion.

[00:32:43] Speaker 02:
I don't think I found one from this circuit. We have found a number from other circuits, which we've cited in our brief, where the circuits did conclude that the district court's exclusion of evidence was an abuse of discretion. and that the evidence should have been admitted. I mean, Miller is one that we've cited. Rodriguez is one that we've cited.

[00:33:09] Speaker 02:
There are a number of circuits who have said that, actually, look, this evidence comes in under Rule 403, and it was an abuse of discretion to exclude it.

[00:33:18] Speaker 03:
But I don't think that's really responsive to the point that or that the premise of Judge Cassis's question, which is there's a lot of evidence here. There's potential overlaps. You know, it seems like it's hard to imagine that we would micromanage exactly what goes in and what stays out.

[00:33:41] Speaker 03:
At most, we might say there's a legal error with respect to the interplay of 414 and 403 and that he didn't. I mean, it strikes me that the district judge didn't really take on the government's argument about.

[00:33:59] Speaker 03:
this being actually part of the criminal conduct. And one would want to have the district judge really confront and address that. But in the first instance, it's really for the district judge, no?

[00:34:13] Speaker 02:
So I'm not sure that in this case that it is necessary to go back for that particular discussion. I think there is a stronger argument that could be made that a remand might be appropriate for consideration of the plea proper details. I don't think that there is really much argument to be made at all that the chats, in other words, what Mr. Zobel said in order to gain the undercover officer's trust can be excluded. Again, I have not found a case that has said that that is properly excluded, so I'm not really sure why one would go back for that.

[00:34:46] Speaker 01:
Did the government ever propose text of a limiting instruction in this case?

[00:34:55] Speaker 02:
I don't know that we got to that point, Your Honor.

[00:34:58] Speaker 02:
I'd have to go back and check because I don't have in the record right now, at least not that I've seen, sort of the proposed jury instructions, and I don't have it right in front of me. I don't know, but I think, again, I don't think it would be hard to come up with a limiting instruction. I mean, again, there have been numerous trials in other federal jurisdictions.

[00:35:18] Speaker 01:
I understand that, but...

[00:35:24] Speaker 01:
I mean, the government bears some responsibility when it is seeking to introduce evidence, especially evidence under 404 or 414 for that matter, of not just saying, okay, here's why we think that it's relevant, but to the extent that there is an argument that it could be unduly prejudicial. here's how we can mitigate that, and here's a proposed instruction.

[00:35:55] Speaker 01:
I mean, I see that happen all the time.

[00:35:59] Speaker 01:
And once the court said back in 2023 that it didn't see how any limiting instruction could cure the unfair prejudice, I mean, why wouldn't the government, when it comes back to this in 2025, say, okay, well, here's how we think a limiting instruction could work?

[00:36:26] Speaker 01:
deal with the prejudice and hear some language.

[00:36:29] Speaker 02:
So I know that there are standard jury instructions that deal with this. I don't have them at my fingertips, but I don't think it's a secret in the district court that these are out there and that they've been used in numerous trials.

[00:36:41] Speaker 01:
I mean, obviously there was one used in Liu there, so I don't think... But limiting instructions by their nature are very case and fact specific in whether they're going to work