good morning good morning your honor my name is nina marino i represent firing in trad i would ask to reserve three minutes for rebuttal unless you honour's direct me otherwise i do not intend to address the government's waiver argument because pursuant to both yeager and wilson the defendant objection or assent to a mistrial is irrelevant to a honor this case from its indictment through opening statements through the trial the evidence the development of theories to closing argument was essentially two sides of a coin one side was my side my side was my client made a mistake in what he said the government side was my client mr dredd lied about what he saw there was no third side there rose no he learned side there were two sides there were the government had a singular  third kind of two discrete things that are going on there's this report and then there's his talking to the f b i which is separate and apart and it it's a little that lying to the f b i is a little bit like  al capone got it on the tax evasion you know they can't get the murders but they somehow get you on the tax evasion the lying to the f b i whether people like it or not seems to be a discrete crime and so that's what i'm struggling with and if the case was tried with alternative theories then i think that would be an issue but that's not how the case was tried the government made a decision a tactical decision to go  nothing to but make the double down argument why are we tied to the government's theory i think you're right but the government's theory they charge multiple counts so their theory was a lie from the get go it was a lie at the time of the  report it was a lie that got sustained through the f b i interview but isn't our task here to examine the evidence that was mid to try to determine whether the jury by giving him account to necessarily decided the issues that the government would have to prove if it were to retry him and count three why are we now bound by the government's the reason arguments at trial well also too if we weren't bound by what the government and the defense said then there wouldn't be any point for the jury to have to chop you know wires with love for the jurors should do exactly exactly what they say but they get to hear the evidence and then decide based on the law on the facts so if i understand the court question correctly the court is asking me if based on the evidence presented during the trial irrespective of the fact that there was no argument made in connection with that evidence that the jury could somehow on its own come up with a third theory of he learned to understand the question correctly well i would put it a little bit differently than that i mean the fact that the government argued that he lied to both as to count two and count three didn't necessarily preclude the jury from finding that well we don't think that he knowingly falsified the police report on count two that has different outcome it right and particularly in light of his trial testimony  we think the government hasn't proven that beyond a reasonable doubt but an entire year later when he interviewed with the f b i he's now learned additional facts that would suggest that the rip that the statements in the report w faults but that he doubled down don that in order to help out his colleagues so i service department why isn't that a viable argument for the government at this point it's not a viable argument and the reason  is that the so called i put this in quotes facts that the government alludes to as demonstrating a change in mens rea a room nothing more than untethered pieces of the record and i will speak to each one of them untethered pieces of the record is my client's son mr dreads i'm so sorry mr chris picture on the news and and right my client was on the stand if this was a theory that the government wanted to pursue with the jury why was not a question asked of my client about that is it any different than a saying i were a red dress on tuesday we're going to conclude from that that my calendar is bad that you know valentine's day was wednesday that i  decide we can only refer to what the jury did decide and let the jury if we agree with your theory there's no reason in the world the jury would have any trouble finding not guilty right no no no statement charge are really similar statements right but and so i think your argument might have a little more traction but for that fact that when i put it to you to kind of address my concern given his trial testimony that the attack was really a blur and the reason why he couldn't equal kate in the police report was really he wasn't allowed to why can't we deduce from that that the jury accept that and that that's what led to the acquittal one count on count two right because the statements are the same but there's a different explanation proffered by the defendant himself as to why the report was not knowingly false and that explanation that he proffered was i wasn't allowed to make statements are that are unequivocal led that persuaded the jury he can't have that explanation with regard to the f b i interview because that was a year later so why can't we looked at that fact because the government never explored that when he was on the stand they never explored that with any of the witnesses that was no set but a ten evidence the dates are in evidence when he you know when he did the around them ok i think we have your argument mind if you want to reserve you might want to reserve at this point i'll reserve now thank you good morning it may please the court serif applebee bhattacharjee for the united states should the court reach the merits of defendants collateral estoppel claim there's no dispute as to what standard of review applies here the district courts factual findings in its order denying defendants motion to dismiss or reviewable for clear error which means that this court must accept those factual findings as true unless they are shown to be illogical implausible or wholly without support in the record the to be indisputably false you have to have you have to have some kind of see enter and so you're reading is mine and you're saying he's lying at the same thing the defense is accusing so i would parse actually the fals of the statements in two ways there was an undisputed element the factual statements in the report and the fact is the statements in the interview were indisputably false and there was no evidence presented to the contrary so the court is correct what was at issue w defendant's knowledge in two thousand and eleven and his knowledge in two thousand and twelve and with the court's permission i'd like to briefly review the three categories of evidence upon which the district court premised its core foundational factual finding about the significantly different circumstances they were first the statements in themselves second defendant's opportunity to equivocate when he made the statements and third the overall circumstances under which the statements were made now in his two thousand and eleven report defendant stated unequivocally that gabriel korea was the first aggressor who pushed and punched defendants fellow deputies during his two thousand and twelve f b i interview defendant was twice asked for his recollection of the korea incident once before his report was placed in front of him and once after and in both instances defendant unequivocally and consistently stated that gabriel korea was the first aggressor who swung at pushed and punched defendant's fellow deputies now those factual second category of evidence the district court considered was whether or not defendant had the opportunity to qualify or equivocate and in that regard the diff the district court first turned to defendant's trial testimony where he testified under cross examination that at the time he wrote his two thousand and eleven report he was not permitted to qualify his statements he was not permitted to say he was unsure it was understood at a trial that at the time of his two thousand and twelve interview there was no such restriction placed on him in fact as the record unequivocally shows at the very outset of his interview defendant was expressly admonished that the interview was voluntary but if you chose to speak with the f b i he had to tell the truth in the first race it creates some problems for the government this is counsel's two sides of the coin theory as i understand it that the government is that it was false when it was made at the time that he wrote the report to the incident and he basically lied about it and he repeated that lie a year later instead of correct the record so what does that do to the government's case so i answer in with two distinct points your honor first is defendant is seizing upon this language of doubling down which was essentially a rhetorical device or a trial theme and trying to say that that satisfies his burden of collateral stoppable without actually considering what the government argued in the evidence that it pointed to in closing we trial counsel i was one of the trial counsel yes your honor and if you turn to the record it e r thirty one five thirty one the government's counsel in closing highlighted the exact same circumstances were guarding the falsity in defendant's mental state in two thousand and twelve as the district court noted in its own order the government noted it e r five thirty one the defendant's statements in this interview were unequivocal he didn't hedge his statements he didn't try to offer any kind of clarification he says quote i saw a punch the government noted that a year and a half transpired between the time that defendant wrote his report and the time he had his interview the government noted in closing that defendant saw mr korea's picture in the news the government noted in closing that that defendant knew there was an ongoing f b i investigation that he was subpoenaed to testify before a grand jury and that he voluntarily while he asked to be interviewed at the at the u s attorney's office instead the government acceded to that request and so that brings us to the third category of evidence that the district court considered in coming to its core factual finding the context in which defendant's two thousand and twelve statements were made he was  d to testify before a grand jury in an ongoing criminal investigation he had seen korea's face on the news he had reviewed his report with his counsel before the interview and in the interview when he was given every opportunity to equivocate he doubled down on the unequivocally false statements in this report so that's there's a difference between doubling down with no changed circumstances and what happened here and what the trial re established here doubling down despite significantly different circumstances in which the two statements were made so how did the elements that they all of the offense is so relevant part your honor the elements of two that were disputed was defendant's knowledge of the falsity of his statements not the falsity of the statements themselves and whether defendant intended to him peter obstruct an ongoing federal investigation the government stands by the argument made below that both of these elements were in fact contested and the jury could have acquitted on either basis without reaching the question of whether defendant knowingly lied in two thousand and twelve and what was disputed in in count three was whether defendant had that mens rea whether he knew the undisputedly factually false statements were in fact false and whether those statements were material to an ongoing f b i investigation so these are the elements are in fact distinct and the defendant here it's undisputed bears the burden of review so the government has reviewed the record evidence the district court relied upon and coming to its core factual finding out what it will sell when you do if you are allowed to retry this defendant except in for the moment mr trent assertion that the government doubled down in the first trial to sit government argued that it trading a search in a new trial on count three at that it did not race in the first trial the government does assert that it's free to do so but it would be speculative to guess at how the government's going to try this case because this the government under the rules of evidence could try the case very similarly it's still able to prove that the statements in the report were factually false it's still able to prove that and my experience when a case a case doesn't work out when there's a mess trial both sides try a little bit differently because why would you do the same thing if you want to get a different result and the parties are free to do that and in terms of trying it differently really it's a question of whether the parties framed the issues differently and whether the parties argue the case to the jury differently but as judged a judge winston stated the jury here was not tied to the government's theory was not tied to the defense's theory and as as you stated judge callahan if if there were really only two sides if it were that clear cut then there would be no purpose for a jury trial in any way and there would be there would be no function for the jury here if there weren't specific disputes about what the facts of the record actually showed and so here under the clear air standard if the court must accept as true that defendants two sets of statements were made under significantly different circumstances it necessarily follows twelve under significantly different circumstances when he had the opportunity to equivocate and when he had the opportunity for advance reflection on the truth of his statements well i said twenty eleven all tied to the report yes your honor and the two thousand and twelve is tied to the i interview that's correct they're completely distinct occurrences the statements and as the district court noted rightly in its order the falsity of the statements does not change over time the question is whether defendant defendant's knowledge in two thousand and eleven was the same as his knowledge in two thousand and twelve and it is the defendant's burden to establish that a general verdict of acquittal is tantamount to a specific factual finding that he did not knowingly lie in two thousand and twelve and i see my time is almost up the only thing i would say in closing your honor is that the supreme court in the brabo fernandez case that we've cited has very clearly spoken to general verdicts of acquittal because they are unrefutable on appeal this court should be especially guarded in its application of the collateral estoppel doctrine in criminal cases such as these the defendant has not met his purdon of showing that the says something important i want to bring to the court's attention the ultimate issue in this case was drugs for acidy was his truthfulness that was what the jury had to determine with respect to all of the counts when the and that is because of the way the case was tried the case was not tried as just described by the government the case was not tried with a distinct counts the government and i would have the court's attention to  interesting case this with a guy who works for the navy and he was in the pentagon during nine eleven and basically he made a claim for a victim's compensation claim and he did this over a period of time made claim claim appealed the claim and what happened is he was acquitted on some counts and they hung on other counts and what the court did in its analysis and i think this is the proper analysis is the quote looked at each at the guy at the arguments both defense and government with respect to each count in that case the government did not go in the government if the jury alternate theories the government said with respect to for example count for all you could find this girl you could find this with respect to count five you could find this or you could find this that never happened in this case the government when i say double down when i say two sides of the same coin when i see through