[00:00:00] Speaker 04:
Morning, Your Honors.

[00:00:00] Speaker 04:
Excuse us.

[00:00:01] Speaker 04:
We're just talking about the correct pronunciation of Graveman.

[00:00:06] Speaker 04:
Or Graveman.

[00:00:06] Speaker 04:
Yeah, or if you're him.

[00:00:08] Speaker 04:
But now we'll focus on your argument.

[00:00:09] Speaker 04:
Go right ahead.

[00:00:12] Speaker 03:
I'd like to reserve two minutes for rebuttal.

[00:00:14] Speaker 03:
Sure.

[00:00:15] Speaker 03:
Good morning.

[00:00:16] Speaker 03:
Your Honors, may it please the court, Mr. Albanese.

[00:00:19] Speaker 03:
My name is Georgia McMillan.

[00:00:21] Speaker 03:
I represent the appellant, Luis Castro Alavez.

[00:00:24] Speaker 03:
I'm just gonna jump into our first issue, which concerns count two, the attempt count.

[00:00:31] Speaker 03:
So our position with regard to this issue is that the court erred.

[00:00:37] Speaker 03:
The district court erred in instructing the jury that the government need not prove that Mr. Castro specifically intended to possess methamphetamine, the drug charged in the indictment.

[00:00:49] Speaker 03:
under controlling Ninth Circuit precedent.

[00:00:52] Speaker 03:
The case United States versus Hunt controls this error.

[00:00:56] Speaker 03:
The case United States versus Colazo, which the government relies upon, does not control this error.

[00:01:03] Speaker 03:
I just wanted to talk the court through, I think, a relevant narrative that occurred in this case.

[00:01:08] Speaker 03:
So this case was tried, I believe, in 2023, October 2023, approximately, or

[00:01:19] Speaker 03:
Yes, I think it was 2023.

[00:01:21] Speaker 03:
But anyway, the year is not important.

[00:01:24] Speaker 03:
What's important is what happened just before the trial.

[00:01:26] Speaker 03:
Just before the trial, the parties submitted through the government.

[00:01:29] Speaker 03:
The government made the submission, but it represented the intentions of both parties with regard to jury instructions.

[00:01:38] Speaker 03:
And so the critical jury instruction that was submitted was proposed joint instruction number eight.

[00:01:45] Speaker 04:
You've briefed this carefully, and the district court has an on-record colloquy where he talks about the rug being pulled out, that there was a big change.

[00:01:54] Speaker 04:
I wasn't clear about if that's really part of your argument, that the parties originally stipulated the instruction and then changed their minds, basically.

[00:02:03] Speaker 04:
The judge has to get the law right, so how does this part of the switcheroo help your client?

[00:02:09] Speaker 03:
Well, I think it goes to the overall harmlessness error later on, but I can dispense with this narrative, Your Honor.

[00:02:19] Speaker 03:
It just seemed like a good idea to sort of set the stage for what happened later on.

[00:02:23] Speaker 03:
Oh, it is, it is.

[00:02:23] Speaker 04:
And you briefed it carefully.

[00:02:25] Speaker 04:
I don't want to cut you off.

[00:02:26] Speaker 04:
It's just that we're really laser focused on this legal issue, and I wanted to make sure that I understood why you think this other setting the stage influences this.

[00:02:35] Speaker 04:
I think you've clarified.

[00:02:37] Speaker 04:
Thank you.

[00:02:39] Speaker 03:
Does Your Honor want me to .

[00:02:41] Speaker ?:
.

[00:02:41] Speaker ?:
.

[00:02:41] Speaker 04:
?

[00:02:41] Speaker 04:
Well, I think we're going straight to the issue of law.

[00:02:44] Speaker 04:
Why was this instruction error?

[00:02:45] Speaker 04:
You think that we're looking at Hunt and we're looking at Colazzo.

[00:02:49] Speaker 02:
More specifically, maybe, and I don't mean to talk over Judge Christen, but you started by saying Colazzo doesn't apply, and I'm very interested to hear your .

[00:02:57] Speaker 02:
.

[00:02:57] Speaker 02:
.

[00:02:57] Speaker 02:
That's the issue.

[00:02:59] Speaker 03:
Right to the point, Your Honor, getting rid of the narrative.

[00:03:03] Speaker 03:
Colosso doesn't apply.

[00:03:05] Speaker 03:
First, Colosso was a conspiracy case.

[00:03:08] Speaker 03:
In this case, you do have a conspiracy charge.

[00:03:11] Speaker 03:
That's count number one.

[00:03:12] Speaker 03:
We're not contesting that, but we also have this attempt

[00:03:16] Speaker 03:
charge, which is count number two.

[00:03:19] Speaker 03:
Colosso is strictly a conspiracy case.

[00:03:22] Speaker 03:
The word attempt, if you just go into the PDF version of the Colosso case, the word attempt doesn't come up in that case.

[00:03:29] Speaker 02:
I agree with you.

[00:03:29] Speaker 02:
The Colosso does not address attempt, but why does the reasoning in Colosso not apply equally in the attempt context?

[00:03:37] Speaker 02:
How can we not apply Colosso

[00:03:42] Speaker 02:
given that the analysis would be exactly the same.

[00:03:45] Speaker 02:
It's dealing with the same exact provision.

[00:03:48] Speaker 02:
Both are inquit crimes, right?

[00:03:52] Speaker 02:
So explain to me how we could not follow Colosso.

[00:03:56] Speaker 03:
Well, here's the tricky thing about this case, Your Honor.

[00:03:59] Speaker 03:
You say we're dealing with the same provisions we are.

[00:04:03] Speaker 03:
It's 841A.

[00:04:06] Speaker 03:
So my client was also charged under 841A.

[00:04:12] Speaker 03:
It doesn't take account of attempt crimes, and that's the problem here.

[00:04:16] Speaker 03:
So in Colazo, we've got this massive drug conspiracy in and out of California prisons, right?

[00:04:23] Speaker 03:
And when the court starts to analyze this, this is the majority opinion in Colazo, there's a

[00:04:29] Speaker 03:
an important dissenting opinion written by Your Honor Judge Fletcher.

[00:04:33] Speaker 03:
But when the court starts analyzing- But it's a dissent.

[00:04:37] Speaker 03:
It is a dissent, Your Honor.

[00:04:39] Speaker 03:
So in the majority, when the court is analyzing how do we talk about conspiracy and what the appropriate mens rea is in a conspiracy, we have a kind of an analysis that just does not work for an attempt crime.

[00:04:57] Speaker 03:
So in Colosso, for example, so the first part of that majority decision, the analysis, the court says, well, when we talk about conspiracy, we've got to look at the common law definition of conspiracy.

[00:05:10] Speaker 03:
In this case, that doesn't work for us, that first part of the analysis, because we have to look at attempt, common law attempt.

[00:05:19] Speaker 03:
And we see the court struggling with this and going there in the Hunt case,

[00:05:25] Speaker 03:
But in Colosso, they start talking about, well, how did courts historically look at conspiracy?

[00:05:31] Speaker 04:
It seems to me that is the right starting place.

[00:05:34] Speaker 04:
And that when we're talking about the mens rea between attempt and conspiracy, we have to start.

[00:05:39] Speaker 04:
In Colosso, they certainly had to start with conspiracy.

[00:05:41] Speaker 04:
Attempt wasn't the issue.

[00:05:43] Speaker 04:
And we have this, it seems to me, stark difference, because we have a very well-established rule that for that specific intent in co-eight crime, what we're talking about is,

[00:05:54] Speaker 04:
did the defendant intentionally, specifically enter into the agreement to commit the criminal offense?

[00:06:00] Speaker 04:
And once they do, then we have a whole bunch of case law that recognizes that let's take the kind of case where somebody agrees to rob a bank.

[00:06:09] Speaker 04:
But unbeknownst to him, co-conspirator number two brings a gun and shoots somebody, right?

[00:06:15] Speaker 04:
And we all know that what the consequence is there

[00:06:18] Speaker 04:
But the consequence that we impose on the first co-conspirator isn't imposed because he had the mens rea to shoot somebody.

[00:06:26] Speaker 04:
It's because he joined the conspiracy.

[00:06:27] Speaker 03:
Right?

[00:06:28] Speaker 04:
All right.

[00:06:28] Speaker 04:
So then, so that's, it seems to me to be the difference that I think you're teasing out when we, and by the way, I think this is a very difficult question.

[00:06:36] Speaker 04:
But when you get to attempt, it seems to me to be quite different because that's a specific intent crime too.

[00:06:42] Speaker 04:
But when it's not unlawful to think about robbing a bank, it becomes unlawful, it becomes an attempt when somebody takes a substantial step towards doing that because we're looking at the mens rea and trying to figure out just how serious were you, just how close did you get.

[00:06:56] Speaker 04:
And at some points it gets close enough that that becomes criminal conduct.

[00:07:00] Speaker 04:
But it's very specific and it's a much tighter fit for a conspiracy, you only have to take not a substantial step but just a step in furtherance.

[00:07:09] Speaker 04:
And to me,

[00:07:11] Speaker 04:
that requirement about what it takes to criminalize those thoughts that people have sheds a lot of light on the appropriate mens rea.

[00:07:23] Speaker 04:
That wasn't a question, I suppose.

[00:07:25] Speaker 04:
So now maybe we'll get to my point.

[00:07:27] Speaker 04:
We know after Colosso that these are elements, right?

[00:07:31] Speaker 04:
So it's tempting to look at this one statute, 841, and think of it as a penalty statute.

[00:07:35] Speaker 04:
But those are now elements of the offense.

[00:07:37] Speaker 04:
So it seems like we should be thinking of them as an element of the crime.

[00:07:42] Speaker 04:
And I don't know how the government wouldn't have the burden to prove those elements, right?

[00:07:47] Speaker 04:
And not just that the

[00:07:49] Speaker 04:
quantity and the type of the substance, but that the defendant knew about it if we're talking about attempt for the reasons I just mentioned.

[00:07:56] Speaker 04:
There's a big difference between the liability that attaches for a conspiracy than to an attempt.

[00:08:03] Speaker 04:
Does any of that make sense to you?

[00:08:05] Speaker 03:
Yes, Your Honor.

[00:08:06] Speaker 03:
I think so.

[00:08:12] Speaker 03:
I agree.

[00:08:12] Speaker 03:
This is a tough issue.

[00:08:13] Speaker 04:
What's your strongest argument for why you think the government ought to have to prove beyond a reasonable doubt that this defendant knew about the substance, the type of the substance, and the quantity?

[00:08:23] Speaker 04:
By the way, that is where I started on this case, I thought Colazzo was the answer at the beginning of the ending.

[00:08:32] Speaker 04:
Now, I'm not so sure, so I want to hear both of you talk about the differences if we could.

[00:08:36] Speaker 03:
Collasso doesn't control.

[00:08:38] Speaker 04:
I agree with you that it's not a Miller versus Gammie, but if you can get past Miller versus Gammie and get to really what Judge Desai is trying to get you to tease out, why isn't the analysis in Collasso applicable?

[00:08:52] Speaker 03:
Well, the analysis in Collasso speaks about general intent, and it says one of the discussions, one of the analytic discussions, is it says that

[00:09:04] Speaker 03:
The conspiracy is a general attempt crime, and it follows the mens rea of the underlying crime.

[00:09:13] Speaker 03:
Now, in the attempt cases that I cited, particularly the attempt cases in my reply brief, the case law there is very clear, Your Honor, that the mens rea is a heightened scrutiny

[00:09:30] Speaker 03:
It is a specific intent mens rea for the attempt crime, even if the underlying crime is a general intent crime.

[00:09:40] Speaker 03:
Another thing about Colosso, and the reason why I don't think this panel should follow Colosso for this particular case, is the analysis just doesn't fit our case.

[00:09:50] Speaker 03:
So another analysis that the court goes through, the majority decision, is they talk about the idea of a traveling mens rea.

[00:09:59] Speaker 03:
there's a long discussion of that in the majority decision, and they say, well, we've got to take those adverbs, the knowing, the intentionally, and see how far those adverbs can travel through, and there's discussions about, you know, what's the object of the transitive verb, and you get into all of that sort of discussion in there.

[00:10:20] Speaker 03:
Well, in the attempt case, that kind of analysis just doesn't work.

[00:10:26] Speaker 03:
The so-called traveling mens rea,

[00:10:29] Speaker 03:
because that only works if you can take the general intent and see how far it'll go through the statute at issue.

[00:10:39] Speaker 03:
In the attempt case, though,

[00:10:42] Speaker 03:
If it's an attempt, then the mens rea is heightened.

[00:10:47] Speaker 03:
It is specific mens rea.

[00:10:49] Speaker 04:
In an attempt case, the defendant hasn't committed the completed crime by definition, but not for lack of trying.

[00:10:56] Speaker 04:
So what we know about that mens rea is the person is really, his intent is very, very clear.

[00:11:02] Speaker 04:
He's trying to rob the bank and but for something interfering, he would have robbed the bank.

[00:11:05] Speaker 04:
That's not true.

[00:11:06] Speaker 04:
of conspiracy.

[00:11:08] Speaker 04:
If we're talking about my example where there's this unintended consequences or unanticipated consequence of the person being shot, that's just not a defense to conspiracy.

[00:11:21] Speaker 03:
I think looking at the facts in this case, what's at issue here was this package.

[00:11:27] Speaker 03:
It was a package of methamphetamine, later tested to be methamphetamine, mixture of methamphetamine, weighed just over 10 pounds.

[00:11:36] Speaker 03:
And so this was charged as, count two was charged as an attempt because he never actually physically possessed it.

[00:11:45] Speaker 04:
But go back, if you would, to Judge Desai's question, because I'm trying to figure out why the analysis is different.

[00:11:51] Speaker 04:
These are elements, right?

[00:11:53] Speaker 04:
You agree they're elements now?

[00:11:56] Speaker 03:
Quantity and ... If Your Honor could ... Quantity and type of drug, I think it is an element in an attempt crime.

[00:12:06] Speaker 03:
Colazzo tells us it is not an element in a conspiracy.

[00:12:12] Speaker 04:
In our crime, yes.

[00:12:13] Speaker 04:
In our case, forgive me.

[00:12:14] Speaker 04:
I think your position is that these are elements, correct?

[00:12:15] Speaker 03:
Yes, that's correct.

[00:12:17] Speaker 03:
Yeah.

[00:12:17] Speaker 03:
Which follows the indictment.

[00:12:20] Speaker 03:
Yes.

[00:12:20] Speaker 03:
Yeah.

[00:12:20] Speaker 03:
I hope I answered your question, just to say.

[00:12:22] Speaker 04:
But it was tough to even find my question, but anyway.

[00:12:26] Speaker 01:
This is a question that's a little bit off the point.

[00:12:28] Speaker 01:
It's a practical question.

[00:12:29] Speaker 01:
Does it make any difference to the sentence, given that he's got two convictions, both of them have little to me as though they have carried the same sentence and they're running concurrently?

[00:12:38] Speaker 03:
No, it does not make a difference to the sentence.

[00:12:42] Speaker 03:
My remaining two issues do, but of course this is the main point, this issue.

[00:12:49] Speaker 01:
We would disagree with you on the other issues, agree with you on this, the sentence would be unaffected.

[00:12:55] Speaker 03:
You know, Your Honor, let's look at the Hunt case, Your Honor, and if you'll permit this diversion, I promise we'll circle back to your question about the issue of sentence.

[00:13:07] Speaker 03:
In the Hunt case, in those facts, I don't recall the amount of cocaine that was involved was in excess of, I think, 500 grams of cocaine.

[00:13:19] Speaker 03:
And there was this issue, that was an attempt case, the Hunt case.

[00:13:23] Speaker 03:
And the net result of the panel's majority decision is they said, hey, he didn't plead guilty.

[00:13:32] Speaker 03:
to that amount of cocaine and so we're going to send

[00:13:40] Speaker 03:
But what might be applicable is, and forgive me, Your Honor, I can't think of the 841 subsection B section.

[00:13:52] Speaker 03:
There is a catch-all drug section in there that basically permits the sentencing for a mandatory minimum of one year.

[00:14:03] Speaker 03:
And that's what ended up happening in the Hunt case, and that's why you had this

[00:14:09] Speaker 03:
very strong dissent by Judge O'Scanlan where he says, how can this guy only get one year?

[00:14:17] Speaker 03:
Look at his record.

[00:14:19] Speaker 03:
And also Judge O'Scanlan did not agree with the harmless error analysis of the majority.

[00:14:25] Speaker 03:
But so to circle back to your issue, does this affect sentencing?

[00:14:32] Speaker 03:
It could possibly affect sentencing had the court

[00:14:39] Speaker 03:
had the parties gone with the original joint jury instruction number eight, where the jury had to, well, actually, no, I think I agree with you, Your Honor.

[00:14:53] Speaker 03:
Maybe it wouldn't affect, because count one, the sentence in count one would control.

[00:14:58] Speaker 03:
Sorry, Your Honor, thank you.

[00:15:04] Speaker 04:
We'll put two minutes on the clock when you come back so that you have time to have a rebuttal.

[00:15:09] Speaker 01:
Thank you very much.

[00:15:09] Speaker 04:
Let's hear from the government please.

[00:15:26] Speaker 00:
Good morning, and may it please the court.

[00:15:27] Speaker 00:
Michael Albanese on behalf of the United States.

[00:15:32] Speaker 00:
I think it's important to start with precisely what Colazzo explicitly says, which is it holds firmly that for the substantive offense, there's no mens rea requirement for drug quantity, drug type.

[00:15:45] Speaker 00:
It also says that they are elements, but not full-fledged elements.

[00:15:49] Speaker 00:
They are elements quoting only in the sense that they must be proven beyond a reasonable doubt and pled in the indictment.

[00:15:56] Speaker 00:
So I think that that's an important distinction here because when you're talking about how far down does your mens rea travel, Colazzo clearly held that yes, conspiracy is a specific intent crime.

[00:16:07] Speaker 00:
The conspirator must specifically intend that themselves or one of their co-conspirators commit the substantive offense.

[00:16:15] Speaker 00:
But Colazzo held that in conspiracy, that specific intent does not travel down to the drug type and drug quantity.

[00:16:23] Speaker 00:
Attempt is a mirror statute in almost every relevant respect.

[00:16:28] Speaker 00:
Attempt is a what statute?

[00:16:32] Speaker 00:
A mirror image of conspiracy.

[00:16:35] Speaker 04:
Why do you think I'm incorrect to think about them as being so very different when we talk about what criminal consequences will attach?

[00:16:41] Speaker 00:
Well, Your Honor, if I understood your questions earlier, you're concerned that they're both incomplete crimes, meaning that one can be guilty of attempt and conspiracy without the substantive offense ever having occurred.

[00:16:58] Speaker 00:
So I don't believe that there is a distinction.

[00:17:00] Speaker 00:
Both crimes

[00:17:03] Speaker 00:
have an actus reus.

[00:17:04] Speaker 00:
In the case of attempt, there must be a substantial step.

[00:17:07] Speaker 00:
In the case of conspiracy, there must be an agreement.

[00:17:10] Speaker 00:
But both a substantial and a step and an agreement fall short of the completed crime.

[00:17:16] Speaker 04:
I think you're not going to have a serious disagreement on that point, and we can agree to disagree on that point.

[00:17:20] Speaker 04:
But I do think this is a very sticky case.

[00:17:23] Speaker 04:
And so let me ask you this.

[00:17:25] Speaker 04:
For this case, is it your position that the quantity and the type of the substance are elements

[00:17:33] Speaker 00:
So I think what Colazzo says is that they are elements only in the sense that they must be proven beyond a reasonable doubt to a jury.

[00:17:41] Speaker 04:
Not that the defendant knew about them, not the mens rea.

[00:17:44] Speaker 00:
The mens rea is not.

[00:17:46] Speaker 00:
So I think you do need to draw that distinction when you're thinking about how far down does the specific intent travel.

[00:17:53] Speaker 04:
Well, so this isn't, to counsel's point, we're not slicing and dicing a statute in the same way that the Supreme Court did in rehab or that our court did in this case.

[00:18:02] Speaker 04:
What is your analysis, what's your decision tree look like in this case?

[00:18:06] Speaker 00:
I'm sorry.

[00:18:06] Speaker 04:
What's your attempt?

[00:18:07] Speaker 04:
What's your decision?

[00:18:08] Speaker 04:
Or are you just mapping the Colosso reasoning exactly on top of an attempt?

[00:18:12] Speaker 00:
I think that's exactly how you approach this, Your Honor.

[00:18:15] Speaker 02:
Tell me if you think that that is binding on us, because as your friend on the other side argues, Colosso, and I think you agree, Colosso addresses conspiracy.

[00:18:26] Speaker 02:
So are we bound by Colosso?

[00:18:29] Speaker 02:
And if you think the answer is yes, why are we bound by Colosso if it addresses conspiracy and the issue before us is attempt?

[00:18:37] Speaker 00:
Yes, I believe that you are bound by Colosso.

[00:18:40] Speaker 00:
Although the attempt is decidedly different than conspiracy and Colosso does not talk about intent.

[00:18:46] Speaker 00:
It's the exact same statute and it talks about how, I think,

[00:18:54] Speaker 02:
So there's a difference between saying we're bound by Colosso.

[00:18:57] Speaker 02:
Colosso dictates the result in this case.

[00:19:01] Speaker 02:
And we have no choice about that.

[00:19:05] Speaker 02:
It's binding precedent versus we should adopt the reasoning in Colosso because attempt and conspiracy are essentially the same, which I think you've already argued.

[00:19:14] Speaker 02:
And I'm more interested in whether we are bound by Colosso.

[00:19:20] Speaker 00:
Well, importantly, because United States versus Hunt is on this point, and I think that if Colazzo doesn't overrule United States versus Hunt, then we're stuck with Hunt.

[00:19:34] Speaker 00:
But I do believe that Colazzo

[00:19:35] Speaker 00:
And as it had the authority to do, sitting on Bonk did overrule Hunt because it basically occupied the space.

[00:19:41] Speaker 00:
It told you how we're supposed to think about how far down specific intent should travel when we're talking about the difference between 841A1 and getting all the way to 841B1A and B1B.

[00:19:54] Speaker 00:
And it says it stopped short.

[00:19:56] Speaker 01:
And you're saying Colazzo overrules Hunt even though Colazzo doesn't discuss Hunt?

[00:20:01] Speaker 00:
That's right, and there's unfortunately in this series of cases on this issue, there's a kind of a consistent problem with cases not referring to the prior cases, because Hunt was decided without acknowledging that, at least for the substantive offense, it had not been the case law that there was no mens rea for drug type and drug quantity.

[00:20:23] Speaker 01:
I have to say, speaking now just for myself, I cannot read Colosso as overruling Hunt in any intentional way.

[00:20:31] Speaker 01:
The only way I can see Colosso overruling Hunt is to say that the reasoning of Colosso is inconsistent with Hunt.

[00:20:38] Speaker 01:
I think there was nothing in Colosso that had any intent at all on the part of the majority.

[00:20:43] Speaker 01:
Hunt simply was not on the horizon.

[00:20:47] Speaker 00:
Your Honor would certainly know better about the intentions behind the judges who decided Colazzo.

[00:20:53] Speaker 00:
I would say that the way that it is read appears to be it is a broad decision that is supposed to completely decide how 841A1 and 841B1A and B relate to each other.

[00:21:06] Speaker 01:
This may be a semantic difference that means no real difference.

[00:21:09] Speaker 01:
I see nothing in Colosso that says there's an intent to overrule Hunt.

[00:21:13] Speaker 01:
That doesn't mean it does not.

[00:21:15] Speaker 01:
That the reasoning of Colosso is so inconsistent with Hunt that we have to view it as overruled.

[00:21:21] Speaker 01:
But there's nothing in Colosso that tells me that that was in the minds of the judges in Colosso.

[00:21:26] Speaker 04:
Judge decides trying to ask you a question.

[00:21:28] Speaker 02:
Well, and I think my question sort of as a follow up to Judge Fletcher is, do you have any authority that you can cite to us on this proposition that Colosso overrules Hunt expressly?

[00:21:40] Speaker 00:
No, I have not.

[00:21:41] Speaker 00:
I was not able to find any decision by this court or even a district.

[00:21:45] Speaker 02:
So in my view, that really tells me that Hunt is still good law.

[00:21:49] Speaker 02:
and Colosso is what Colosso is and now we have a scenario where we're trying to reconcile both of these things and Hunt clearly addresses attempt crimes and Colosso addresses conspiracy and that's why I'm asking other than your argument that the analysis is the same and we should adopt in this case we should basically expand Colosso to include

[00:22:14] Speaker 02:
the attempt crime, you don't believe that we are bound.

[00:22:19] Speaker 00:
Well, I think the way that Judge Fletcher just described it is, put it better than I can, which is that the reasoning in Colosso is so inconsistent with Hunt that I think the only fair reading of Colosso is that it does overrule Hunt, even though it did not specifically say we are overruling Hunt or we are addressing attempt crimes.

[00:22:39] Speaker 00:
Because the way that it analyzes conspiracies, starting with the point of here's what's required for the substantive offense.

[00:22:46] Speaker 00:
Conspiracy requires no more than what's required in the substantive offense.

[00:22:51] Speaker 00:
There's just no reason to treat attempt differently than conspiracy.

[00:22:55] Speaker 00:
They're both, the Supreme Court talks about both crimes in the same breath.

[00:22:59] Speaker 04:
I think there are reasons to treat them differently.

[00:23:01] Speaker 00:
There may be policy reasons, but I could find no reason in the case.

[00:23:05] Speaker 04:
The common law does.

[00:23:06] Speaker 04:
That case starts by looking at the common law, and we are all very familiar with it.

[00:23:12] Speaker 04:
When we're talking about conspiracy, we cast that net really broadly, and that's not true of attempt, which seems to me to be, as I've said, that's

[00:23:20] Speaker 04:
I think background starting point for this.

[00:23:23] Speaker 04:
I'm curious about your answer to this question about whether you think these are elements.

[00:23:29] Speaker 04:
You said you don't think they are.

[00:23:30] Speaker 04:
You're hoping they're not.

[00:23:31] Speaker 04:
If they are elements in this attempt offense, then should the government have to prove them, not only that they existed, the quantity and the substance, but the defendant understood that?

[00:23:44] Speaker 00:
So in the context of conspiracy, Colosso tells us that they're not.

[00:23:49] Speaker 04:
I appreciate that.

[00:23:51] Speaker 04:
And that seems to me quite unremarkable, because in conspiracy, as long as I enter into the conspiracy, I'm going to be liable for the foreseeable consequences of that conspiracy.

[00:24:00] Speaker 04:
So even if I think we're going to deal a little bit of drugs, if I find out that one of my co-conspirators packed the box full of a whole bunch of other drugs, I'm on the hook, right?

[00:24:09] Speaker 04:
I mean, I'm paraphrasing, but I'm just trying to call your attention to this point.

[00:24:14] Speaker 04:
Attempt is quite different because attempt is, well we know that the person convicted of attempt has had the mens rea to complete that offense.

[00:24:22] Speaker 04:
And what I'm suggesting to you is in this case it would be, I think arguably, the offense of dealing methamphetamine in a large amount.

[00:24:34] Speaker 00:
Your Honor, I think what you're getting at in terms of when you reference the foreseeability, that's what Colazzo was discussing because the instructions that they were reviewing in Colazzo had built in that the drug type and quantity had to be foreseeable.

[00:24:49] Speaker 00:
It was tracking language in the sentencing guidelines.

[00:24:52] Speaker 00:
But Colazzo overruled that and said, no, you don't even have to find any kind of foreseeability.

[00:24:58] Speaker 00:
It just needs to be part of the conspiracy.

[00:25:00] Speaker 02:
Let me ask you this.

[00:25:01] Speaker 02:
Let's assume, for purposes of this discussion, that attempt crimes impose a higher mens rea than conspiracy crimes, okay?

[00:25:10] Speaker 02:
And so, in this case, when we're looking at this particular statute, what the government would have to show is that the defendant specifically intended to violate section 841, correct?

[00:25:25] Speaker 00:
Correct.

[00:25:25] Speaker 02:
Okay.

[00:25:26] Speaker 02:
And if you look at the language of section 841, it says that

[00:25:31] Speaker 02:
there is possession or distribution of a, quote, controlled substance.

[00:25:35] Speaker 02:
That's all that it says.

[00:25:37] Speaker 02:
Okay, so even if we were to agree with your friend on the other side that attempt is different than conspiracy, requires a higher mens rea, I'm still having trouble understanding how that mens rea attaches to the drug type and quantity when the language in 841

[00:25:59] Speaker 02:
really only talks about a controlled substance.

[00:26:02] Speaker 00:
And that's the position of the United States.

[00:26:04] Speaker 00:
In fact, the Ninth Circuit, current version of the Ninth Circuit instructions for attempts says precisely that, that you must intend to possess any controlled substance.

[00:26:16] Speaker 00:
And that's different than the version of the model instructions that was in effect.

[00:26:21] Speaker 02:
Is that the answer to why the type and quantity are not separate elements?

[00:26:26] Speaker 02:
Because I can't even

[00:26:28] Speaker 02:
find how we would impute those elements into the straightforward language of Section 841.

[00:26:34] Speaker 00:
So what they are, and again, I describe them as not full-fledged elements.

[00:26:39] Speaker 00:
It's important and I think no one is disagreeing that they must be pled and they must be proven beyond a reasonable doubt to a jury as occurred here.

[00:26:49] Speaker 00:
But is this a question of the mens rea, precisely?

[00:26:51] Speaker 04:
You're treating them as elements for one purpose and not for the other.

[00:26:54] Speaker 00:
That's right.

[00:26:54] Speaker 00:
And then that's what Colazzo does, at least with respect to the substantive offense and conspiracy.

[00:26:59] Speaker 00:
And so I'm urging the court to do no differently in the attempted context.

[00:27:09] Speaker 00:
There was no discussion in my opponent's first half on the 403 and 702 issue.

[00:27:17] Speaker 00:
I'm happy to answer the court's questions regarding that issue.

[00:27:21] Speaker 00:
But essentially, we would ask the court to affirm the lower court.

[00:27:24] Speaker 00:
There was no abuse of discretion regarding permitting the general subject matter of the narco saint material, and there is certainly no clear error in permitting the Detective Moniz.

[00:27:35] Speaker 04:
You did mention 703, and I wasn't going to raise it, but since you mentioned it, what is your strongest argument that this individual was properly qualified?

[00:27:44] Speaker 00:
Well, Your Honor, you mean procedurally properly qualified or substantively properly?

[00:27:50] Speaker 00:
Your Honor, this is a, and I think I laid it on the brief.

[00:27:53] Speaker 00:
I don't have his resume in front of me.

[00:27:54] Speaker 00:
This is an experienced narcotics detective who has investigated narcotics case for over a decade, including extensive experience with cases involving drugs originating in Mexico being sent to Hawaii, which is a common modus operandi that he testified about.

[00:28:15] Speaker 00:
He's also attended trainings.

[00:28:18] Speaker 04:
I'm talking about the specific heart.

[00:28:22] Speaker 04:
Do you want to speak to that?

[00:28:24] Speaker 00:
As part of his overall expertise, he attended training sessions and narcotics investigator academies, and one of the subjects that was taught at those sessions was this correlation between narcosane imagery and drug trafficking, and that was the basis of his opinion.

[00:28:44] Speaker 04:
into the two trainings and he had one prior case with us?

[00:28:47] Speaker 00:
I believe that's an accurate, on that specific issue regarding the correlation, yes, Your Honor.

[00:28:52] Speaker 00:
All right.

[00:28:52] Speaker 04:
Is there anything further, Judge Assai, Judge Fletcher?

[00:28:55] Speaker 04:
Thank you, Counsel.

[00:28:55] Speaker 00:
Thank you very much.

[00:29:04] Speaker 03:
Thank you, Your Honors.

[00:29:05] Speaker 03:
Two minutes.

[00:29:08] Speaker 03:
Judge, back to your question, Judge Fletcher, this doesn't affect sentence.

[00:29:16] Speaker 03:
It doesn't affect sentence, however, we need the court's guidance, obviously.

[00:29:21] Speaker 03:
This is a difficult issue, and whether or not this would affect my client's sentence, I think we do need the court's guidance concerning this issue of whether or not Colosso controls.

[00:29:34] Speaker 03:
Our position, of course, is that Colosso does not control at all.

[00:29:38] Speaker 04:
strongest argument that it does not control?

[00:29:43] Speaker 04:
Miller versus Gammie.

[00:29:45] Speaker 04:
If you get past Miller v. Gammie and just go .

[00:29:48] Speaker 04:
.

[00:29:48] Speaker 04:
.

[00:29:48] Speaker 04:
because there's some differences we can all point to, but .

[00:29:50] Speaker 04:
.

[00:29:50] Speaker 04:
.

[00:29:51] Speaker 04:
Your Honor, you mentioned Miller .

[00:29:53] Speaker 04:
.

[00:29:53] Speaker 04:
.

[00:29:53] Speaker 03:
Go ahead.

[00:29:54] Speaker 03:
Excuse me for interrupting.

[00:29:56] Speaker 03:
You mentioned the Miller case.

[00:29:57] Speaker 03:
I don't believe we briefed that, Your Honor, so I .

[00:30:00] Speaker 03:
.

[00:30:00] Speaker 03:
.

[00:30:00] Speaker 03:
I'm going to answer aside from that.

[00:30:01] Speaker 03:
Just go to your question, Judge.

[00:30:03] Speaker 04:
Fletcher's point, and really Judge Josiah's made the same point.

[00:30:06] Speaker 04:
Why isn't the reasoning of Colosso, the decision tree, why isn't it applicable to attempt?

[00:30:11] Speaker 03:
because it has to do with the mens rea.

[00:30:13] Speaker 03:
Colazzo discusses general mens rea.

[00:30:16] Speaker 02:
So let me just, I'm so sorry, but let me stop you because you're short on time.

[00:30:20] Speaker 02:
If I agree with you that the mens rea for an attempt crime is higher, and this is the question I asked the government, why do we, how do we still then impute that higher mens rea to the drug type and quantity given that

[00:30:38] Speaker 02:
The language in 841 only references the controlled substance.

[00:30:42] Speaker 03:
It's a difficult issue, Your Honor.

[00:30:45] Speaker 03:
I agree.

[00:30:46] Speaker 02:
Do you have an answer?

[00:30:47] Speaker 03:
We don't have case law that says, well, OK, it's an attempt.

[00:30:51] Speaker 03:
It's a drug charge.

[00:30:54] Speaker 03:
It's an attempted drug charge, like here.

[00:30:57] Speaker 03:
So what is our specific mens rea on this, or the specific intent mens rea?

[00:31:03] Speaker 03:
I think it needs to be fact-based.

[00:31:05] Speaker 03:
And here, in this case, I think that there is, well, I know I'm out of time.

[00:31:12] Speaker 03:
I think that the facts in this case show that he did not know that 10 pounds of methamphetamine was coming his way.

[00:31:20] Speaker 03:
Prior to that date on June 28, when the package arrived at where he was staying, he was engaged in financial transactions, wiring monies to Mexico, and then you have the candy box situation.

[00:31:33] Speaker 03:
But nothing in the record shows that he was actually in receipt of any kind of drugs.

[00:31:38] Speaker 03:
Throughout that long those the three hours of his Interviews with law enforcement he never once mentions a drug type or quantity So he didn't know what he was doing the defense counsel says it all in the closing statements He says he was a mark.

[00:32:00] Speaker 03:
He was a patsy.

[00:32:01] Speaker 03:
He was naive and

[00:32:03] Speaker 03:
He was an innocent drug courier in all of that, and that's why we need attempt, Your Honor.

[00:32:10] Speaker 03:
That's why this panel needs to differentiate this situation from Colosso.

[00:32:16] Speaker 04:
Thank you.

[00:32:16] Speaker 04:
Thank you.

[00:32:17] Speaker 04:
Your argument, thank you both, with your patience with our many, many questions.

[00:32:19] Speaker 04:
It's a really interesting and I think difficult case.

[00:32:23] Speaker 04:
We'll give it our full attention.

[00:32:25] Speaker 04:
We'll stand in recess for the rest of the day.