[00:00:00] Speaker 00: Hear ye, hear ye, all persons having business with this honorable court. [00:00:04] Speaker 00: The United States Court of Appeals for the Ninth Circuit will draw near, give your attention, and you will be heard. [00:00:11] Speaker 00: God save these United States and this honorable court. [00:00:24] Speaker 06: Well, good morning and welcome to the Ninth Circuit. [00:00:26] Speaker 06: Judge Lee and Judge Sang and I are [00:00:28] Speaker 06: Looking forward to a full day of arguments today. [00:00:31] Speaker 06: We have five cases set for argument. [00:00:33] Speaker 06: So we just remind everybody to pay attention to your time. [00:00:36] Speaker 06: Let us know if you want to reserve. [00:00:40] Speaker 06: Time for a bottle and wind up as the times going down But thank you all for showing up and thank you to our staff who always helps these things these Run smoothly. [00:00:53] Speaker 06: We'll go ahead and start with our first case set for argument, which is United States versus green case number 23-1294 Mr. Barr [00:01:12] Speaker 04: Good morning, Your Honor. [00:01:12] Speaker 04: It's Paul Barr, federal defender for Keenan Green. [00:01:15] Speaker 04: I'd like to reserve two minutes of my time for rebuttal, and I'll watch my clock. [00:01:19] Speaker 04: The district court in this case committed two errors, one pre-trial and one at sentencing. [00:01:24] Speaker 04: Each requires remand. [00:01:26] Speaker 04: First, the district court committed legal error when it denied Mr. Green's motion for discovery in support of a potential selective enforcement challenge. [00:01:34] Speaker 04: In doing so, it failed to apply the standards set by this court in USV Sellers. [00:01:39] Speaker 04: Second, the district court committed procedural error [00:01:42] Speaker 04: when it refused to consider the need to avoid unwarranted disparities at the time of sentencing, as required by 18 U.S.C. [00:01:48] Speaker 04: Section 3553A6. [00:01:50] Speaker 04: Unless the court prefers otherwise, I'll take these issues in order. [00:01:54] Speaker 06: So can I just ask a question to sort of focus on the selective enforcement prong? [00:02:01] Speaker 06: It seems like your argument basically boils down to, and I think you're right, under sellers, you can't require [00:02:10] Speaker 06: evidence of discriminatory intent, right? [00:02:17] Speaker 06: But here, it looks like the district court considered both intent and effects. [00:02:24] Speaker 06: So can you explain to me why that's not enough, even undersellers? [00:02:29] Speaker 04: Well, Your Honor, the first response to Your Honor's question is that as the court indicated, as Your Honor indicated, [00:02:37] Speaker 04: It's improper for the district court to consider discriminatory intent at this preliminary stage of the analysis. [00:02:44] Speaker 04: So Mr. Green. [00:02:46] Speaker 06: Hold on. [00:02:46] Speaker 06: It seems like it's not error to consider it. [00:02:50] Speaker 06: It's error to require evidence of it. [00:02:53] Speaker 04: To require evidence of it in order to pass the threshold to receive additional discovery. [00:03:00] Speaker 06: And I guess what I'm saying is I would agree with you if the district court said there's no evidence of intent. [00:03:06] Speaker 06: Therefore I'm not gonna grant the discovery, but I don't see that as what the district court Yeah, I don't think that's what the district court judge did do you you view it differently? [00:03:17] Speaker 04: I take it I do view it differently your honor though as I understand now your honor's question It seems to be that the your honor saying that the court also looked at discriminatory effect found none and therefore it's [00:03:30] Speaker 04: its ruling could stand on either prong. [00:03:32] Speaker 04: Is that what I'm understanding? [00:03:34] Speaker 06: That's basically it. [00:03:35] Speaker 06: I mean, I don't want to put it so myopically, but it sort of hinges on the oral transcript. [00:03:41] Speaker 06: This is at ER 226, where the second paragraph there starts with and. [00:03:49] Speaker 06: And to me, and is disjunctive to say, well, I'm going to discuss effects. [00:03:55] Speaker 06: You don't have enough evidence under effects. [00:03:58] Speaker 06: You don't have enough evidence under intent. [00:04:01] Speaker 03: I'm sorry, your honor. [00:04:02] Speaker 06: Which was the record set for that? [00:04:04] Speaker 06: Oh, sorry. [00:04:05] Speaker 06: E-266. [00:04:09] Speaker 03: Thank you, your honor. [00:04:10] Speaker 03: I was in the wrong section of the record there. [00:04:16] Speaker 04: Your honor, if we look there at the record, the district court says, I don't think there's sufficient basis here to go forward with any claim here that there's discriminatory intent. [00:04:26] Speaker 04: particularly given the nature. [00:04:27] Speaker 06: Well, okay, hold on, because I think you cut out the very word and is at the beginning of that, right? [00:04:32] Speaker 03: Yes, Your Honor. [00:04:33] Speaker 06: And so and is referencing the prior paragraph which says there's no discriminatory, there's not enough evidence of, it says there's a very small number of individuals, there's not enough effects. [00:04:47] Speaker 04: Your Honor, my contention is that the district court failed, first of all, to cite the standard in sellers at all. [00:04:54] Speaker 04: So that is the first legal error that the court committed. [00:04:57] Speaker 04: It just simply ignored the standard. [00:04:59] Speaker 04: And I think looking at the record, we see that the court was not really applying the standard at all. [00:05:04] Speaker 04: Again, because it turned to this intent analysis, which is just not part of the analysis established by Sellers and by the out-of-circuit cases, Davis and Washington, on which Sellers relied. [00:05:16] Speaker 04: And in fact, the Washington court specifically mentions that [00:05:20] Speaker 04: as your honor's already mentioned, it's not necessary for a defendant to show discriminatory intent. [00:05:26] Speaker 05: But if I can interrupt here, admittedly it's a little bit vague here and ambiguous because we don't have a written order, just oral argument transcript, but if it's ambiguous, really the tie goes to the district court judge, right? [00:05:38] Speaker 05: Because we are to presume the district court knows the law and applied it correctly, even though here maybe it could be read your way, [00:05:46] Speaker 05: It could be read. [00:05:47] Speaker 04: I think Judge Nelson's way that the judge did consider effect and intent was just another Additional factor or fact that she mentioned Looking at the record your honor I don't see where the district court says anything about effect what the district court says the whole paragraph ahead I mean Is that your argument that that it didn't consider effect at all? [00:06:13] Speaker ?: I [00:06:14] Speaker 06: The prior paragraph says they're prosecuted in both state and federal court. [00:06:18] Speaker 06: It looks at the evidence that was presented about effect. [00:06:22] Speaker 06: And it said, well, that's a sample. [00:06:25] Speaker 06: It addresses the sample size and says, you've presented some federal cases, but these cases are prosecuted in state and federal court. [00:06:32] Speaker 06: You've only presented six. [00:06:34] Speaker 06: Now, district court might have been right or wrong on that, but how is that not evidence of effect and considering effect? [00:06:40] Speaker 04: Your honor, my response would be either that the district court did not apply the seller standard at all, so it applied a committed abuse of discretion by not applying the proper standard, or it applied it in such a way that's unreasonable and not based on inferences from the record. [00:06:57] Speaker 01: Council, on the question of whether the district court was applying sellers, my reading of your motion and the government's opposition is that both parties were essentially arguing for the application of sellers. [00:07:09] Speaker 01: The court says I read the papers. [00:07:11] Speaker 01: I mean, there just wasn't, I might view this differently if you were saying Sellers and the government was saying, no, we should apply some other case, or we should apply Armstrong strictly. [00:07:21] Speaker 01: But it seems that there was essentially the government was saying, we'll assume Sellers applies here. [00:07:27] Speaker 01: And so the district court really only had argument that Sellers should apply. [00:07:30] Speaker 04: That is true, Your Honor. [00:07:33] Speaker 04: But again, turning to the record, there's no indication in the record that the judge is actually applying the standard established by Sellers. [00:07:40] Speaker 04: And again, [00:07:41] Speaker 04: It's helpful to remember the evidence that Mr. Green presented to the district court, which was that six cases outside of Mr. Green's case, totaling seven defendants, plus his case, there's eight defendants that we discovered that were arrested and then prosecuted based on online social media stings conducted by the San Diego. [00:08:01] Speaker 06: And they all were black. [00:08:02] Speaker 04: They were all black men. [00:08:04] Speaker 04: In a county, San Diego, where the population is about 5.5% black. [00:08:08] Speaker 06: OK, so I give you that. [00:08:10] Speaker 06: And if the district court hadn't addressed that evidence, you might have something where we needed to remand it. [00:08:16] Speaker 06: But again, I come back to that paragraph right before the one we were reading. [00:08:19] Speaker 06: I don't understand why that doesn't, that isn't the district court looking at the evidence you presented and saying it's just not enough. [00:08:28] Speaker 06: And again, you may, obviously you disagree with that and we may even disagree with that, but don't we owe the district court the deference here that it looked at that evidence and discounted it and said it's not enough. [00:08:41] Speaker 04: Again, Your Honor, I stand by my contention that the district court is not applying the standard. [00:08:46] Speaker 04: But even if the court were to find or conclude that it did apply the standard, it's still an abuse of discretion if the application is illogical, implausible, or without support from the record. [00:08:56] Speaker 04: And here, the government had every opportunity to come back and say, here are the universe of cases flowing from the San Diego Human Trafficking Task Force online stings. [00:09:08] Speaker 04: prosecuted in federal court, prosecuted in state court, prosecuted wherever. [00:09:11] Speaker 06: Well, that seems like a lot to ask. [00:09:13] Speaker 06: You're basically asking for a backhanded way to get all the discovery you want and force the government to prove in every case that their statistics bear up. [00:09:26] Speaker 06: And I don't read sellers to even require that. [00:09:29] Speaker 04: It requires more than mere speculation. [00:09:31] Speaker 04: That's what this court said. [00:09:32] Speaker 04: And eight out of eight defendants being black men [00:09:36] Speaker 04: is more than mere speculation. [00:09:37] Speaker 04: And again, the government keeps alluding to this entire universe of cases that must be out there, whether it's in state court, federal court, whether they're the same charges or different charges, all related to these online social media things. [00:09:50] Speaker 04: But it has not provided any except for the Rojas case, which even if we include that, then eight out of nine of the defendants are black men and nine out of nine are racial minorities. [00:10:03] Speaker 01: What support do you have for the argument you're making that because you came forward with, you know, your evidence that if the government wanted to say you shouldn't get discovery, they should have come forth with essentially like rebuttal evidence in opposition to your motion. [00:10:22] Speaker 01: And it's a little bit hard because Sellers said, you know, we're going to give the district court a wide range of discretion here. [00:10:30] Speaker 01: that they can exercise. [00:10:31] Speaker 01: And the district court seemed to be relying on their knowledge of the task force and that they bring cases in both state and federal court. [00:10:42] Speaker 01: Given the wide range of discretion here, I'm looking for something that says this was an abuse of discretion. [00:10:48] Speaker 01: And you're saying, essentially, under these circumstances, without the government coming forth with some evidence of what's happening in state court to rebut your evidence of what was happening in federal court, [00:10:59] Speaker 01: And I'm just not sure where the support for that is in Sellers or any other case. [00:11:06] Speaker 04: In Sellers, the court said that a defendant need to show more than mere speculation to satisfy, to clear the threshold and be entitled to further discovery, and then left it to the discretion of the district court to determine the scope of that discovery that the defendant is entitled to. [00:11:22] Speaker 04: So that's how I read Sellers, Your Honor, is that the discretion that the court is exercising once the threshold has been met [00:11:29] Speaker 04: which I believe it clearly has here, again, with statistics that are largely unrebutted and that are compelling, overwhelming, showing either 100 percent or 89 percent, if you accept the government's addition to the universe of cases, of the defendants in these cases are black men. [00:11:46] Speaker 04: And then once that threshold is cleared, then yes, the district court can exercise its discretion in terms of deciding how and when and what discovery the defendant may be entitled to, including after in-camera review or other [00:11:59] Speaker 04: Procedures to make sure that there's not being more material than necessary provided to the defendant, but that's how I read sellers Isn't it enough of the district court to say it's mere? [00:12:09] Speaker 05: Speculation because the sample size is too small so for example if you had only provided two cases over the past ten years Wouldn't that be enough of this of court to say that sample size is too small, so I'm not going to consider it I Think that there is a limit at which the sample size could be too small your honor I don't disagree there and if there was one case or perhaps or two cases [00:12:30] Speaker 04: And I think the conversation would certainly be different. [00:12:33] Speaker 04: But here we're talking about eight cases. [00:12:34] Speaker 04: And if we're just thinking merely about a coin flip, which this is not, again, black people comprise approximately 5.5% of the population. [00:12:42] Speaker 04: So if you were drawing sort of an even random selection from the population, you'd expect roughly one in 20 of the people would be black. [00:12:50] Speaker 04: Here we have 100% of the people who are being targeted. [00:12:53] Speaker 05: That's only seven or eight over 10 years. [00:12:55] Speaker 05: And online sex trafficking isn't some [00:12:58] Speaker 05: you know, esoteric crime. [00:13:00] Speaker 05: I mean, it's, you know, I presume it's rampant in this day and age and, you know, seven or eight over a course of 10 years seems like a very small sample size. [00:13:08] Speaker 05: I assume there must be dozens if not hundreds and maybe that's what the district court was thinking. [00:13:14] Speaker 04: There may be dozens or hundreds, but you would expect that if there were, certainly if there were in connection with the federal task force that works closely with the federal government, [00:13:25] Speaker 04: The government would have provided at least some of that. [00:13:27] Speaker 04: I'm not saying they would have provided discovery, but they would have said, here are the cases, case name, case number, go look them up yourself. [00:13:34] Speaker 04: All of these defendants were prosecuted. [00:13:36] Speaker 04: They are a range of racial demographics. [00:13:41] Speaker 04: The government didn't do any of those things. [00:13:44] Speaker 04: When it comes to speculation, I think the government is speculating, the district court speculated that there must be other cases out there that are contrary to what we provided. [00:13:53] Speaker 04: But to this point, none have been provided, again, with the possible lone exception of the Rojas case. [00:13:59] Speaker 04: I'm well over my time. [00:14:01] Speaker 04: Thank you. [00:14:01] Speaker 06: The other amendment to my opening rule was answer our questions, and if we take you over, we'll take care of it. [00:14:07] Speaker 06: Thank you. [00:14:08] Speaker ?: Thanks. [00:14:15] Speaker 02: Good morning, Your Honors. [00:14:15] Speaker 02: May it please the court, Mark Rahe, for the United States. [00:14:20] Speaker 02: One thing I want to make clear at the start, the court, there should be no question that the court applied the right standard. [00:14:26] Speaker 02: This court held on Bonk and Carty that, first of all, we presume district courts know the law. [00:14:31] Speaker 02: As Judge Sung pointed out, the only case that was mentioned by both or it was front and center in both parties' filings was Sellers. [00:14:38] Speaker 02: Another thing I want to point out, Sellers, in the end, [00:14:43] Speaker 02: It held basically that it's just like all discovery motions. [00:14:47] Speaker 02: It's an abuse of discretion. [00:14:49] Speaker 06: This is not an unusual standard This is the same standard that district courts have applied So, okay, so I mean, I think you've started on your strongest ground and that that is right I think we presume that the district court knows the standards and then the question is did did the district court apply the correct standard and sellers [00:15:10] Speaker 06: is an interesting case. [00:15:11] Speaker 06: I mean, it does seem to say, look, you can't rely on intent. [00:15:17] Speaker 06: And so if you can't, or yeah, you can't rely on evidence of intent for selective enforcement actions. [00:15:24] Speaker 06: So if Seller says that, then why is the district court even talking about intent? [00:15:28] Speaker 06: Would this have been an easier case if the district court had just ended with the discussion of effects and been done? [00:15:35] Speaker 02: Well, the way I see it, I mean, I almost feel like the court's using shorthand here. [00:15:39] Speaker 02: I think what Seller says is you cannot require evidence of discriminatory intent. [00:15:44] Speaker 02: But let's say some did exist. [00:15:46] Speaker 02: It would still be relevant. [00:15:47] Speaker 02: And the way I see it is when the judge says it, Excerpt of Record 266, I don't think there's a sufficient basis here to go forward with a claim that there's discriminatory intent. [00:15:59] Speaker 02: That's just shorthand for what this is, a motion for discovery to pursue selective enforcement claim. [00:16:06] Speaker 02: But into the same token, because I know Judge Lee pointed out that there is some inherent ambiguity, what you don't see here is what was found to be reversible in Sellers in Washington and Davis, where the court makes an affirmative statement [00:16:20] Speaker 02: You know what, you didn't provide evidence of similarly situated persons of other races who could have been arrested or investigated, but were not. [00:16:28] Speaker 06: So the other argument that they make, and we didn't explore this so much, but the district court does say, so it's difficult to even figure out how the government would have known his race or gender based on the internal communications. [00:16:43] Speaker 06: You've sort of [00:16:44] Speaker 06: taken that and defended that to say, hey, the government almost seems to be advocating for a rule that says if you don't know the race or there's no evidence that they knew about the race, then you can't have a selective enforcement claim at all and therefore you can't get discovery. [00:17:00] Speaker 06: Is that the position you're taking in this case? [00:17:02] Speaker 02: No. [00:17:02] Speaker 02: And you know, the only thing I want to say is like, we are not advocating any black letter rules here. [00:17:06] Speaker 02: This is abusive discretion. [00:17:08] Speaker 02: It's an inherently flexible standard. [00:17:10] Speaker 02: You know, I don't think I could get up here credibly and say there always has to be this. [00:17:14] Speaker 02: There always has to be a certain statistics. [00:17:17] Speaker 02: All we're saying is that if the abuse of discretion, the question is whether the district court is saying something that's illogical or without foundation in the record. [00:17:27] Speaker 02: Here, even Sellers itself, [00:17:29] Speaker 02: It says, because the defense quotes this a million times in their reply brief, you need something more than mere speculation. [00:17:35] Speaker 02: The sentence doesn't end there at Sellers. [00:17:37] Speaker 02: It says, what that something more is will vary from case to case. [00:17:42] Speaker 02: This is a very unique subtext of cases, as all the government's pointing out. [00:17:47] Speaker 02: And I believe that's what the judge was centering on. [00:17:50] Speaker 02: Because unlike those drug stash houses, when you look at Davis, Washington, Sellers, they knew exactly who they were dealing with here. [00:17:59] Speaker 02: You know, Deputy Matthews, we introduced an affidavit. [00:18:02] Speaker 02: It was unrebutted below. [00:18:03] Speaker 02: Her practice is she never initiates direct messaging, and she replies to every single person out there who, you know, messages her without regard to race. [00:18:15] Speaker 01: And... One thing on that is a little bit troubling in this case is that you keep saying she didn't initiate anything, but she did go on, the defendants, and view his story in a way that would enable him to see [00:18:30] Speaker 01: I'm not on social media, so I'm going to botch the terminology. [00:18:36] Speaker 01: That's arguably why she initiated some sort of contact, even if she didn't message him. [00:18:45] Speaker 01: He became aware of her presence because she initiated something. [00:18:48] Speaker 01: So why do you keep saying she didn't initiate anything? [00:18:52] Speaker 02: I didn't say she didn't initiate anything, and I will be clear. [00:18:54] Speaker 02: It's just no communication. [00:18:56] Speaker 02: And I'm not so hot with social media myself. [00:18:58] Speaker 02: LinkedIn is about as sophisticated as I get. [00:19:01] Speaker 02: But if I understand it, I mean, I could follow Beyonce's account. [00:19:07] Speaker 02: Does that mean I'm sending her a message? [00:19:08] Speaker 02: Is she even going to notice me? [00:19:10] Speaker 02: All the government is saying the concern is selective enforcement, communication. [00:19:16] Speaker 06: ought to be what matters because and even here is the concern is I understand it is that she clearly got onto his account and there are apparently certain stories that disappear you know 24 hours later so we don't know what they are but those stories may have indicated to the investigator [00:19:36] Speaker 06: that Green was black. [00:19:39] Speaker 02: Now, that may altogether be possible, but what I would simply say on behalf of the government is there's no evidence of that. [00:19:45] Speaker 02: It was his phone. [00:19:46] Speaker 02: He could have put an affidavit. [00:19:48] Speaker 02: He could have put something to that effect. [00:19:50] Speaker 02: Aside from that, when you look at the actual screen grabs, and again, I'm not that good with social media myself, but you look at it, he literally has the word pimp in his title screen. [00:20:01] Speaker 02: He doesn't have his picture. [00:20:03] Speaker 02: It's a picture of the globe. [00:20:05] Speaker 02: What evidence we do have him of introducing pictures or videos were not himself. [00:20:10] Speaker 06: Would this be a different case if he'd put in that affidavit and said, listen, I was talking about going, I support Black Lives Matter. [00:20:19] Speaker 06: I had stories about the African-American church that I went to. [00:20:24] Speaker 06: Would that be a different case? [00:20:26] Speaker 02: It could very well. [00:20:27] Speaker 02: And if that evidence, if we had those facts, the district court would have had a different [00:20:32] Speaker 02: calculus of information, this court would be looking at it differently. [00:20:35] Speaker 02: But all I'm saying is, you know, I know. [00:20:37] Speaker 06: That's his duty to put that in because that is evidence that he would have had control over. [00:20:43] Speaker 06: Because the flip side of this is it's hard to require, and this I think is what Sellers was grappling with, it's hard to require the defendant to put forward a lot of evidence. [00:20:53] Speaker 06: They don't have access to the records. [00:20:55] Speaker 06: Now, your opposing counsel has said, well, the government could have come back and said, [00:21:02] Speaker 06: Yeah, you've cherry-picked these eight cases, but we have this data. [00:21:10] Speaker 06: It's a lot different than this picture. [00:21:14] Speaker 06: Why didn't the government do that? [00:21:15] Speaker 02: Is that? [00:21:16] Speaker 02: Well, the first thing I would just respectfully push back on, this is a motion. [00:21:20] Speaker 02: They have the burden of proof. [00:21:22] Speaker 02: It's nothing on the government. [00:21:23] Speaker 06: They have the burden of proof, but the burden of proof is basically more than mere speculation. [00:21:28] Speaker 02: Right. [00:21:28] Speaker 06: But it's not real high. [00:21:29] Speaker 02: Right. [00:21:31] Speaker 02: It has to. [00:21:31] Speaker 02: And what that is will depend on the circumstances of every case. [00:21:35] Speaker 06: But why doesn't the government? [00:21:37] Speaker 06: Look, I think I know the answer to this. [00:21:39] Speaker 06: The government doesn't want to be held to having to effectively prove its case. [00:21:44] Speaker 06: But it would be an easy way to just say, listen, you've cherry picked. [00:21:51] Speaker 06: We could give you some rudimentary data, and it would end this whole debate, right? [00:21:56] Speaker 02: I mean, it could in theory. [00:21:57] Speaker 02: But again, I don't know what precedent [00:22:00] Speaker 02: That said, not just in this context, but if we don't have the burden to prove, and these things weren't introduced into the evidence at trial, it's hard for me on appeal to get up then and say, I don't have those statistics. [00:22:13] Speaker 02: They're not in my fingertips. [00:22:14] Speaker 02: And so if it's a defendant who wants to make this claim, and it was brought 10 months after arrest, I mean, there are other avenues out there. [00:22:23] Speaker 02: There's freedom of information requests. [00:22:25] Speaker 02: We understand. [00:22:26] Speaker 02: Sellers, it's hard to. [00:22:31] Speaker 02: Well, from the state court, at least make an effort, you know? [00:22:33] Speaker 05: That, I think, is incumbent on some... Does that take three years, you know, to get it? [00:22:37] Speaker 02: Well... But I don't know. [00:22:40] Speaker 02: I mean, these are the kind of things, if the idea is that it's supposed to be the burden of proof on the defendant, like, at least make the effort to show it, you know? [00:22:47] Speaker 06: Let me ask you this. [00:22:48] Speaker 06: If the paragraph before the and on 266 were not there, would the government lose? [00:22:57] Speaker 02: That's a good question, Your Honor. [00:22:59] Speaker 02: I mean, [00:23:00] Speaker 06: Because the way I read Sellers, I think the answer is yes. [00:23:03] Speaker 06: I mean, query whether Sellers meant that. [00:23:06] Speaker 06: But I think that's what Sellers says. [00:23:07] Speaker 06: Sellers says you can't require intent. [00:23:09] Speaker 06: And if the district court had only looked at intent and said it's not there, I think that would be abuse of discretion, wouldn't it? [00:23:16] Speaker 02: It could be in that direction. [00:23:17] Speaker 02: But again, I don't think that all that that's saying, that statement itself is inherently. [00:23:23] Speaker 06: No, I'm asking you a pure hypothetical. [00:23:25] Speaker 06: I actually think the district court [00:23:27] Speaker 06: applied sellers and saved itself because of that paragraph above. [00:23:31] Speaker 06: But if it wasn't there, I actually think the government would probably lose. [00:23:35] Speaker 02: It would be a lot harder, and I'm not trying to run away from your question. [00:23:38] Speaker 02: I'm assuming that first paragraph's not there. [00:23:40] Speaker 02: All I'm saying is that that first sentence, if it says, I don't think there's evidence of discriminatory intent, then I'd say for sure we'd lose. [00:23:48] Speaker 02: But when it says, I don't think there's a sufficient basis to go forward with the claim, the way the court is hedging that is basically saying, I'm applying a threshold showing, which tells me that the court definitely realizes that we're only at the discovery phase. [00:24:04] Speaker 02: She's not actually holding the defense on the merits. [00:24:08] Speaker 02: I think that's the only thing I can say about that sense. [00:24:11] Speaker 02: And unless there are any further questions, the government would submit. [00:24:17] Speaker 06: Thank you. [00:24:17] Speaker 06: We'll give you two minutes for the battle. [00:24:27] Speaker 04: Thank you, Your Honor. [00:24:28] Speaker 04: Your Honors, I just want to get back to this idea about the government's obligation or lack thereof to respond with countervailing evidence about the nature of the prosecutions and arrests that, again, flowing from this very specific investigative technique that we are highlighting here, which is online social media stings conducted by the task force, the federal task force. [00:24:51] Speaker 04: I just think it's disingenuous, to be honest, to suggest that the reason the government came back with no additional data is because it didn't want to set a bad precedent. [00:25:00] Speaker 04: Because if that were really the case, it wouldn't have come back with Rojas. [00:25:04] Speaker 04: It comes back with Rojas to try and rebut our data, eight out of eight defendants are black men. [00:25:10] Speaker 04: And it says, oh, there's one additional defendant that we found who's not a black man. [00:25:15] Speaker 04: He's a Hispanic man, but he's not a black man. [00:25:18] Speaker 04: I think it's reasonable to infer from that action that if the government had other data available, and again, we're not talking about going through the case files. [00:25:27] Speaker 04: We're talking about what are the case numbers so that I can go on PACER and confirm, oh, okay, yes, based on the information that's publicly available or based on further investigation that we do by talking to the defense attorneys like we did for our data sample to determine what the racial composition of these defendants is. [00:25:46] Speaker 04: you know, that weakens our position or makes it, you know, completely unavailable to us. [00:25:51] Speaker 04: But the government didn't do that. [00:25:52] Speaker 04: I think it's reasonable to infer it's because the data does not exist. [00:25:56] Speaker 04: So looking at the data as it exists, again, this is more than mere speculation. [00:26:02] Speaker 04: If we look at the numbers that were produced in Sellers, in Washington, and Davis. [00:26:06] Speaker 04: Now, again, they're not completely dispositive because there's more work to be done in the district court in each of those cases. [00:26:14] Speaker 04: The circuit courts deciding those cases, in each instance, was looking at data that was less than 100 percent. [00:26:21] Speaker 04: In some cases, significantly less, but maybe 85, 90 percent. [00:26:25] Speaker 04: If the courts had said, that is not enough, or the courts could have said, that is not enough to show effect, you lose, irrespective of anything else, they could have done that, but they didn't. [00:26:36] Speaker 04: The cases remained alive for the district court to review under the proper standard. [00:26:40] Speaker 04: So the notion that [00:26:42] Speaker 04: Eight out of eight or even eight out of nine defendants being black men is not sufficient to clear. [00:26:48] Speaker 04: Again, as Judge Nelson, you indicated, the low threshold established by Sellers, which is just more than mere speculation. [00:26:55] Speaker 04: And I think, Judge Nelson, you seize on sort of the reason that Sellers articulated that standard, which is that defense has difficulty accessing the data. [00:27:06] Speaker 04: It's not publicly available in most instances. [00:27:09] Speaker 04: The government speculates that there are other means to obtain that data, but realistically, on the timeline in which these cases operate and the mechanisms that are actually available, the defense did the best that it could. [00:27:22] Speaker 06: So... Yeah, we would like to go over and... Your Honor. [00:27:27] Speaker 06: We appreciate the arguments by both sides in this case, and the case is now submitted.