[00:00:00] Speaker 02:
Case number 25-3104, United States of America versus Robert P. Burke appellant. Mr. Parlatore for the appellant. Mr. Phil for the appellee.

[00:00:11] Speaker 00:
Mr. Parlatore, good morning.

[00:00:13] Speaker 04:
Good morning, Your Honor. I'd like to reserve two minutes for rebuttal.

[00:00:18] Speaker 04:
May it please the court. Admiral Burke was convicted of bribery on several errors. This was a conviction that was obtained through a carefully edited interview made to look like it was a confession without the proper context. It was brought by hearsay statements from a witness that they chose not to call because of significant credibility issues that we were not then allowed to introduce through 806.

[00:00:43] Speaker 04:
It was brought through a hearsay declaration of a co-conspirator that was outside the scope of the conspiracy and that we were not able to also bring in impeachment material on.

[00:00:56] Speaker 04:
All of these things, it was an interesting case where rather than the usual where we're complaining about what was admitted, here the government took the case and tried to show the jury only very narrow slivers of information without allowing them to see the full context. This was a very carefully curated case of not showing the jury the full scope of everything.

[00:01:24] Speaker 04:
Our first point, the 106 issue, what they did was they took a very long interview with agents. And during that interview, there was a lot of material discussed, but in very explicit detail, all of the events leading to this case. And then they took out, they cherry-picked the tiny little slivers that they wanted the jury to hear.

[00:01:50] Speaker 04:
Not nothing, you know, none of the rest of the context. And then when it was put in front of the jury, we wanted to, you know, through the doctrine of completeness rule 106, show the full context.

[00:02:02] Speaker 04:
And the judge found that on one of those answers that they should have at least given the full answer instead of just half of the answer. And so at that point, even though that full answer was responsive both to that quote as well as to the first clip that they put in, at that point, the U.S. attorney withdrew that section to try to prevent the jury from being able to see the full picture.

[00:02:25] Speaker 00:
Did you argue to the court at that point that it needed to be added both for clip C and clip A?

[00:02:30] Speaker 04:
Yes, Your Honor, we did.

[00:02:32] Speaker 04:
And by doing that, we then got to see on their closing arguments exactly what this was about, where they improperly argued to the jury that he had initially lied. And then when confronted, he then confessed to the bribery. That is not what happened. It is not, you know, if you actually were able to see the full transcript and the full interview, that is not the impression the jury would have gotten. And they only got that because of that careful editing.

[00:03:02] Speaker 01:
So I think one of the things the government says is that the more helpful statement or clarification, as you might put it, came much later in the interview. And there are a lot of cases that rely on that sort of timing difference in order to say it's not an abuse of discretion to not complete a statement under 106. What's your response to that argument?

[00:03:25] Speaker 04:
Well, here we are talking about it is a single interview. We're not talking about later statements, but we're not talking about things that are so removed in time. It is an interview where they continued to go through these things and he was providing more detail and more context throughout. So it's not that he initially confessed and then spent a whole bunch of time trying to explain it away and give self-serving lies. Here we're talking about He was explaining this in detail, giving them more information, and simply because they appear at different points in the transcript doesn't in and of itself say that that doesn't satisfy completeness.

[00:04:07] Speaker 01:
So I appreciate that. In clip A, he sort of just says categorically there were no job discussions.

[00:04:15] Speaker 01:
Later, he says...

[00:04:18] Speaker 01:
essentially, they were talking about job and I was listening. Correct. Why is that so different from...

[00:04:27] Speaker 01:
Initially, you admit guilt. Later, you try to deny or explain it away. And what the cases say is this is really focused on taking a utterance, a statement out of context. So you certainly wouldn't want to cut off a statement halfway through. But it's just literally true that he said, no, there were no job discussions at that meeting. Right.

[00:04:50] Speaker 04:
Correct, because they had brought it up, and it was something that he did not respond to because he was not able to talk about it at that time. They certainly did bring it up, and later he explained that, yes, they brought it up, and he gave that explanation. That is consistent with what he later told the ethics advisor. It is completely consistent throughout that, yes, they did bring it up.

[00:05:16] Speaker 04:
He did not respond.

[00:05:19] Speaker 04:
And then we had a significant discussion at the trial where they brought in the former judge advocate general who explained the rules of if there is that type of thing and it's rejected and you don't continue to discuss it, then under the ethics rules, that's not something that falls under the disclosure requirements. Additionally, if there's no further discussions for a period of months, it's something that essentially becomes stale. so that important context of what actually happened in that meeting is necessary to then match up to the rules as they presented it through those witnesses so turning to uh denise canedo Denise Canedo was the original complainant in this case.

[00:06:07] Speaker 04:
She was the only witness who is not a defendant who observed this meeting where the alleged quid pro quo was discussed. And throughout this entire time, she was being held out as the government star witness. And then they chose not to call her because she has such. It's massive, significant credibility issues of a prior finding by a state court judge that she had lied of prior lies to the agents in this case. And so by in by then withdrawing her as a witness and instead putting in hearsay statements, we were told at the time by the judge, you can deal with these.

[00:06:46] Speaker 04:
credibility issues on cross-examination of her, you can inquire of the agent. And then when we tried to cross-examine the agent on these credibility issues, we were shut down. We weren't able to do it.

[00:07:00] Speaker 00:
This really comes across- A lot in the record of you doing just that.

[00:07:05] Speaker 04:
We were not able to do it to the extent necessary. We were able to ask a few introductory questions, and then we were shut down from going any further.

[00:07:13] Speaker 00:
What's the record show as the questions you wish to ask, and the judge said no?

[00:07:18] Speaker 04:
He had stopped us before we could get into all of the rest of the questions.

[00:07:22] Speaker 00:
Where does the record show where you tried to ask specific questions, district court said no, and you preserved an objection?

[00:07:30] Speaker 04:
It's the cross-examination of Special Agent Gardner. I don't have the specific citation in front of me.

[00:07:37] Speaker 00:
Give me one of the questions you wanted to ask and weren't allowed to ask.

[00:07:40] Speaker 04:
So we wanted to get into all of the facts of the prior court determination that she had lied.

[00:07:46] Speaker 04:
That came out.

[00:07:49] Speaker 00:
And you guys even argued it in closing, right?

[00:07:51] Speaker 04:
We did, but not to the extent necessary.

[00:07:53] Speaker 00:
I don't know what you mean to the extent necessary. So the information was allowed to be in. Correct. And then you wish to do.

[00:08:00] Speaker 04:
Right. Under 806, we are allowed to bring information in the same way that we would have cross-examining the witness had she appeared at trial.

[00:08:08] Speaker 04:
Yes, we got into the fact that there was, you know, that. But to get into the deeper facts of it, of what the lies were, that she did it under oath, that it was a, you know.

[00:08:19] Speaker 00:
I thought you got out that she lied to a judge in a court hearing against someone who was she'd been previously romantically involved with. I guess a husband.

[00:08:29] Speaker 04:
So our position is.

[00:08:31] Speaker 00:
Is that right?

[00:08:32] Speaker 04:
Yes. But our position.

[00:08:33] Speaker 00:
What more did you want to get out?

[00:08:35] Speaker 04:
the details of that.

[00:08:38] Speaker 00:
How would the details change the credit? The credibility point is she lied under oath and she did it to harm someone that she'd previously been involved with. That's what you want the jury to hear about this case. Correct. Why would the exact words that she said under oath matter?

[00:08:53] Speaker 04:
It's important. It's exactly what we would have been able to do had she taken the stand.

[00:08:57] Speaker 00:
You keep telling me it's what you would have been able to do. I don't know. Tell me what words you weren't able to get before the jury.

[00:09:02] Speaker 04:
We weren't able to get the nature of the allegations that this was.

[00:09:06] Speaker 00:
The nature of the allegation is you definitely got out that she testified under oath falsely to try to hurt someone she'd been previously involved with.

[00:09:14] Speaker 04:
Accusing him of a crime of sexual abuse.

[00:09:16] Speaker 00:
Mm hmm.

[00:09:19] Speaker 00:
But I don't understand what the sexual abuse has to do with anything related to this trial.

[00:09:26] Speaker 04:
It shows the degree to where we're not just talking about she can lie and say, oh, my husband was mean to me.

[00:09:32] Speaker 04:
She's willing to lie and accuse somebody falsely of a very serious felony, which is exactly what she was doing in this case.

[00:09:39] Speaker 00:
So you tried to ask, get sexual abuse in, and the judge said no?

[00:09:44] Speaker 04:
Yes. Okay.

[00:09:48] Speaker 04:
So aside from the curtailment of the cross-examination, the text themselves were hearsay that shouldn't have been admitted. They were brought in under the pretext that this was for the effect on the listener and then used very explicitly in the closing arguments for the truth of the matter asserted. You know, her statement, and I say I only have four seconds left.

[00:10:16] Speaker 00:
You want to finish your thoughts? Go ahead.

[00:10:18] Speaker 04:
Her statement that the salary was $500,000 a year doesn't appear anywhere else. They used that on the closing argument for the truth of the matter. That's not something he even responded to, so it's not something he adopted. It was purely used for the truth of the matter, sir, which is not the reason that they claimed it was to be admitted.

[00:10:35] Speaker 00:
Go ahead. Go ahead.

[00:10:39] Speaker 01:
Can I just briefly ask a few questions about the bribery instruction? Yes. So it seems like the real concern there is what you crystallized in the reply brief, which is that there is one sentence that does suggest that corruptly is satisfied if the defendant understood. that others expected him to be influenced in an official act. Is that the inclusion of that language is really the core of your complaint, right?

[00:11:11] Speaker 01:
Because the instruction says at least four other times in other places, specific intent is required. Correct. Okay. So I just want to give you a chance to answer the following question, which is...

[00:11:21] Speaker 01:
Why isn't that an invited error? Because that problematic language that I just summarized was in the joint proposed jury instructions. And so one way to look at this would be.

[00:11:36] Speaker 01:
You did ask for more additional language, but you never said, judge, this sentence, this problematic knowledge type sentence can't be in the instructions. In fact, you proposed it, and that could be treated as an invited error. Do you have any response to that suggestion?

[00:11:54] Speaker 04:
I think that if you had taken both of those proposals and put them both in, that that would have cured the error. But by putting one in and not the other, that would be the problem.

[00:12:04] Speaker 01:
So, OK, I just want to understand why that is, because it would still be that you have two sentences next to each other. One says something like knowledge is enough. And the next sentence would say you need specific intent. So it's still be, I think, pretty confusing to a jury, even if you had gotten what you wanted. It would have been better to compress them into a single would have been better. Yes.

[00:12:25] Speaker 00:
Did you ever propose that?

[00:12:28] Speaker 03:
I don't believe we did.

[00:12:28] Speaker 00:
Did you ever tell the judge that you've got a problem with the word understanding in the instruction you proposed?

[00:12:35] Speaker 03:
I don't recall that specific distinction.

[00:12:36] Speaker 00:
Did you ever say, we shouldn't have agreed to that, we didn't mean to propose it?

[00:12:40] Speaker 03:
I don't recall that specific distinction.

[00:12:41] Speaker 00:
All you did was you wanted, you affirmatively asked for an instruction that would have preserved the understanding language, as Judge Garcia points out, the knowledge language, and then would have added a contradictory specific intent instruction.

[00:13:00] Speaker 04:
I don't remember the exact exchange, Judge, but yes, that sounds about right.

[00:13:06] Speaker 00:
Thank you.

[00:13:08] Speaker 00:
Mr. Hill.

[00:13:11] Speaker 02:
May it please the Court, Dietrich Hill on behalf of the United States. The defendant raises a wide variety of challenges to his bribery and the weighted convictions. None has merit, and this Court should affirm.

[00:13:23] Speaker 02:
I'd like to turn first to this 106 issue with respect to this long interview.

[00:13:29] Speaker 02:
The timing makes a big difference because the fact that this later statement that the defendant wanted to get in covers the same subject matter as a much earlier statement is not sufficient to show that it's necessary context to make the earlier statement not misleading. The district judge pointed out that there's a 45-minute difference here or something along those lines. And the interview could have ended much earlier. The interview could have ended after the first statement or shortly after the first statement.

[00:14:00] Speaker 02:
And this later exculpatory statement by Burke never would have come in. And that's the point of having the district judge do this kind of balancing under an abuse of discretion standard, because it may be difficult in some cases to tell what context is necessary. But here it was well within the district court's discretion to say, look, this is a totally different statement. Sure, the defendant wants to get in some hearsay that he's come up with after a long time to think about what explanation.

[00:14:32] Speaker 00:
This isn't like it was a day or half a day.

[00:14:36] Speaker 00:
45 minutes in an interview isn't long.

[00:14:40] Speaker 00:
We have arguments that go longer than that. And we keep just talking about the same things. I don't understand this 45 minutes passing thing because you kept talking about the same stuff, different aspects of the story coming at it from different angles. We kept talking about the same thing.

[00:14:57] Speaker 02:
Sure.

[00:14:57] Speaker 00:
And so the question is, then, was this information going to prevent a misimpression in the jury that that would be caused by just letting the first part in.

[00:15:09] Speaker 02:
But I don't think it is particularly significant that the subject matter is the same. The question is whether that first statement was misleading, kind of in and of itself, that statement on pages 48 and 49.

[00:15:24] Speaker 00:
Well, the question isn't inherent misleading. It is knowing the other stuff, looking at the picture as a whole, is that misleading? Are you truncating his full expressions during an interview?

[00:15:39] Speaker 00:
I think it's very singular topic.

[00:15:41] Speaker 02:
I think it's very common when there's a long interview, you know, a statement that a defendant is giving to an agent that there's going to be statements earlier on. And then later on, the defendant is going to come up with other stories. He's had, I mean, 45 minutes. Sure. It's not days.

[00:15:56] Speaker 00:
Sometimes actually they get more truthful towards the end of the beginning. So, I mean, that's something you could bring out on cross-examination. I just don't understand. You know, if you want to go, those are yeah, those are two inconsistent statements. You can point out, well, you know, now you had some time to think or now you realize what the consequence based on subsequent questioning, you realize what the consequence of that first statement was. I mean, that doesn't make it not inconsistent and not unfair for the jury to to withhold from the jury his full explanation of a specific event.

[00:16:31] Speaker 02:
I would just say that it's basically a judgment call by the district court as to what counts as context and what counts as later exculpatory hearsay that the defendant wants to get in.

[00:16:41] Speaker 00:
45 minutes later isn't. I don't understand the rationale for that.

[00:16:47] Speaker 02:
But I think courts regularly say, look, if it's the remainder of an answer, if it's the next thing the defendant says, that's context. But even within a single 20-minute phone call, for example, if you say something inculpatory toward the beginning of the call and exculpatory toward the end, that second exculpatory statement isn't necessarily context for the earlier statement if they're separated by some other discussion.

[00:17:14] Speaker 00:
I mean, you just look at what was said to figure out whether it's pertaining to the same matter and is answering essentially the same question, right? If somebody said something up front, you know, gosh, while I was there, I said out loud, I can't believe I'm doing this. This is really bad. And then 45 minutes later, they go, yeah, I was stone drunk or high on drugs the entire time I was there.

[00:17:42] Speaker 00:
I was saying all kinds of crazy stuff.

[00:17:45] Speaker 00:
Wouldn't that be needed? Context?

[00:17:48] Speaker 02:
I don't think so. Because I think the first statement, well, but if it comes much later in the interview, then no.

[00:17:55] Speaker 00:
45 minutes. I mean, I think we have different definitions of much later.

[00:17:59] Speaker 02:
That might be right. But I mean, these interviews are almost always focused on one subject matter for a long period, right? There's going to be one crime at issue.

[00:18:06] Speaker 00:
Yes, but it's just definitely out of context. You definitely need for context to understand why he said what he said.

[00:18:12] Speaker 00:
the first time.

[00:18:13] Speaker 02:
I think that's a situation where the defendant, if he wants to get in his explanation, would need to testify about it.

[00:18:19] Speaker 00:
He can't come up with... The point of this rule is not to say the government can clip anything it wants, exclude anything it wants, as long as it's not the very next sentence. And then your only other option is to take the stand. The whole point of this is to recognize that that's not the rules of evidence are not meant to be a weapon for pressuring defendants to surrender their Fifth Amendment rights. That is not what the rule is supposed to be doing. That is true. All right. So then there has to be and it's balanced.

[00:18:52] Speaker 00:
I take that. But it has to be a fair opportunity to ensure that what the government's putting in.

[00:19:00] Speaker 00:
is not clipped and truncated in ways, omitting things that are on the very same topic and would be relevant to it, just because the agent got in and asked a few other questions in between.

[00:19:15] Speaker 02:
I mean, to be honest, I think the fact that we are having this debate about what counts as context and what counts as misleading and what counts as an omission is why this is a matter of discretion for the district court.

[00:19:25] Speaker 00:
Well, that's going to happen in any case on appeal. We're going to ask some questions, and that doesn't mean it's not an abuse of discretion.

[00:19:32] Speaker 02:
It just seems like this is kind of the core domain of the district court to determine, to look at particular statements.

[00:19:37] Speaker 00:
Is it unreviewable by us?

[00:19:38] Speaker 02:
No, of course not. Of course not. But in terms of determining what counts as context and what counts as an omission and what counts as misleading.

[00:19:45] Speaker 00:
I don't know how it's reviewable if we can't decide whether something was context. I mean, that's what we have to decide if we're going to be able to review this and whether it was answering the same question and whether it was sufficiently important that. the jury needed to have it, to have a fair understanding of what was actually said during that interview. We get to decide those things, right?

[00:20:09] Speaker 02:
Sure, sure. I'm just suggesting that it's very useful to have the district court be looking in first instance. I would also point out that actually I'm not sure it matters whether the second statement was important. The question is whether the first statement was misleading without the context.

[00:20:28] Speaker 01:
Do you have cases that apply this rule in the way you were saying, specifically something that looks like the 20-minute phone call where at the beginning he says, I totally did it, and then later says, I didn't do it?

[00:20:40] Speaker 02:
I think we cite a case in our brief that I think is from the Fourth Circuit where it's a brief phone call. It's not an interview. It's a a phone call that comes in between. I think it's a jail call. And at the beginning, he says something like, I possessed the gun. And then 15 minutes later or something, he says, no, I definitely didn't possess the gun. And the court says, no, no.

[00:21:02] Speaker 02:
When you say you possessed the gun toward the beginning, And then later on, you decide that that was a bad idea to say that's that's hearsay that you're trying to bring in on your own. That's an exculpatory statement. It's not like I possessed the gun, but I thought I was allowed to or it was in my car. But how was I supposed to know where then the government's trying to cut off where it was in my car, period? That would I think that would clearly be that would come in under one of six. And the other case that I think was quite useful is the 11th Circuit case that we cite, where there were a couple of instances in this long interview where the court said, this has to come in.

[00:21:40] Speaker 02:
You're cutting the defendant off mid-answer in this interview. But of course, the whole... The whole interview related to, in this case, whether or not this person was improperly importing antiques or ivory or both into the country. And he later makes some statements in the interview saying things like, well, I was sure I was allowed to do this. I've done this before. I followed the regulations. And the court said, no, no. That comes an hour later or something. That's not necessary context to make the first statement misleading.