[00:00:01] Speaker 02: Council have ten minutes aside and whenever you are ready, take your time. [00:00:06] Speaker 04: Thank you, Your Honor. [00:00:08] Speaker 04: Good morning. [00:00:09] Speaker 04: Katie Hurlbrink on behalf of David Ho Romero. [00:00:12] Speaker 04: For three reasons, the district court reversibly erred in interpreting the willfully element of the obstruction of justice guideline. [00:00:20] Speaker 04: First, the court concededly interpreted the term objectively, even though this court interprets it subjectively. [00:00:26] Speaker 04: Second, the DC and Second Circuit's inherently obstructive lines of case law do not help the government. [00:00:32] Speaker 04: Mr. Ho Romero would prevail under either circuit's rules. [00:00:36] Speaker 04: And anyway, the inherently obstructive paradigm is both atextual and unconstitutional. [00:00:41] Speaker 04: Third, the remedy is remand because this court does not find facts on appeal. [00:00:46] Speaker 04: I'll start with the first point. [00:00:47] Speaker 02: Council, if you could speak a little bit closer to the microphone, I would appreciate that. [00:00:51] Speaker 02: Of course, Your Honor. [00:00:53] Speaker 00: Why is it unconstitutional? [00:00:54] Speaker 01: I don't remember that argument being made. [00:00:56] Speaker 04: Your Honor, we did make the argument in the reply brief that to the extent the government is asking for an irrebuttable presumption of willfulness any time a defendant commits certain conduct, [00:01:09] Speaker 04: That would violate the due process clause and that's because in United States versus Lucas your honors said that a defendant's due process right includes a requirement that facts underlying sentencing factors be proved by a preponderance of the evidence and in footnote 5 your honor said that that [00:01:28] Speaker 04: requirement is not just sufficient for due process, it's necessary. [00:01:32] Speaker 04: So an irrebuttable presumption of willfulness anytime a defendant commits certain conduct would not only relieve the government of that burden required by due process, but would even prevent defendants from contesting intent as Mr. Ho Romero attempted to do here. [00:01:50] Speaker 03: On the subjective standard, I think there's really no dispute that there has to be a proof that the defendant subjectively intended, willfully, [00:02:07] Speaker 03: to engage in the violation. [00:02:08] Speaker 03: The question is on the standard that the district court applied. [00:02:12] Speaker 03: I think our case law would say that the district court could draw or the fact finder can draw all reasonable inferences from the evidence or from the facts. [00:02:23] Speaker 03: So it's not entirely clear to me that the district court was saying that [00:02:29] Speaker 03: The willfulness had to be objective or saying that they could draw reasonable inference to find willfulness. [00:02:36] Speaker 03: I mean, is that a fair possible reading of the record? [00:02:40] Speaker 04: Well, I do not think so, Your Honor, for a couple of reasons. [00:02:43] Speaker 04: First of all, the government has conceded that the district court treated willfulness as an objective standard. [00:02:50] Speaker 04: So on answering brief, page 16, [00:02:53] Speaker 04: the court, the government referring to willfulness said, quote, the court treated the question as an objective one. [00:02:59] Speaker 00: And I think that's... In any event, the government is arguing for an objective standard. [00:03:04] Speaker 00: That is exactly right, Your Honor. [00:03:05] Speaker 04: The government is asking for, Your Honors, to [00:03:08] Speaker 04: take on the Second Circuit's inherently obstructive test, under which it is sufficient that the defendant willfully engage in the underlying conduct regardless. [00:03:17] Speaker 02: Sir Council, I'm having some difficulty seeing, let's assume for the purpose of my question that you're right about the [00:03:26] Speaker 02: Subjective standard I'm having difficulty seeing How any error here was not harmless? [00:03:32] Speaker 02: I mean the the facts before the district court and us was that your client? [00:03:38] Speaker 02: continually Viciously and over a long period of time assaulted Paulina many times in many ways and [00:03:49] Speaker 02: that the other participant in the conversation, Brandon, according to the evidence, he went to Las Vegas to chase him down and beat him up. [00:03:58] Speaker 02: And then he basically says to them, the only information that the government could have gotten is from Paulina and I'm coming over there. [00:04:08] Speaker 02: You're in trouble. [00:04:09] Speaker 02: I'm coming over there. [00:04:11] Speaker 02: How can that be anything but showing a subjective intent to obstruct? [00:04:16] Speaker 04: So your honor, I want to break down the various components of your honor's question because we in district court would have evidence to contest all of those points. [00:04:27] Speaker 04: First of all, there is conflicting evidence about violence in the relationship. [00:04:31] Speaker 04: Brandon and Paulina both claimed that Mr. Ho Romero was the abuser and Paulina was the [00:04:37] Speaker 04: on the receiving end, but it is undisputed that Paulina herself had a domestic violence conviction against Mr. Ho Romero, and Mr. Ho Romero took out a restraining order against her. [00:04:49] Speaker 04: Brandon also acts somewhat strangely for someone who thinks that Mr. Ho Romero truly was this violent person. [00:04:58] Speaker 04: As soon as Mr. Ho Romero asks him to connect Mr. Ho Romero with Paulina, [00:05:04] Speaker 04: Brandon agrees to do it. [00:05:05] Speaker 04: He maintains a friendly correspondence with Mr. Ho Romero, both before and after. [00:05:09] Speaker 04: So that's an example of the kind of fact we would contest. [00:05:12] Speaker 00: We would also contest the notion... You already had a hearing on this, right? [00:05:18] Speaker 01: Correct. [00:05:19] Speaker 01: So it's not that you were deprived of the ability to introduce the facts and you didn't introduce all those facts. [00:05:25] Speaker 04: Exactly, Your Honor. [00:05:26] Speaker 04: It's simply that the district court [00:05:28] Speaker 04: did not make any finding about intent even though defense counsel asked for an intent finding both in her papers and in the district, the colloquy, the sentencing colloquy with the district court. [00:05:40] Speaker 01: Is there a difference between intent to threaten and intent to obstruct justice? [00:05:46] Speaker 04: Absolutely, Your Honor. [00:05:48] Speaker 04: In cases like Hernandez and Archer, the Second Circuit makes clear the [00:05:54] Speaker 04: The actual intent has to be an intent to stop the witness from continuing to cooperate with the government. [00:06:04] Speaker 04: That's the obstruction of justice. [00:06:05] Speaker 04: It cannot simply be anger, even fury, even feelings of understandable betrayal. [00:06:13] Speaker 04: I mean, these are all quotes from the cases about a witness's past testimony. [00:06:17] Speaker 04: So you can be angry, and as Mr. Poe Romero did here, say, I want you to tell me about it, without actually having the intent to obstruct cooperation going forward. [00:06:33] Speaker 04: And that is exactly the finding the courts made in both Hernandez and Archer. [00:06:37] Speaker 04: And so that's all we're asking for. [00:06:39] Speaker 04: We're not suggesting that the evidence is conclusive either way. [00:06:44] Speaker 04: We are simply saying that the district court is the proper venue to find this fact That's what your honors have done in previous cases and if you succeed you'll be going to the district court and saying Find that there wasn't obstruction and why don't you reduce the term of supervised release? [00:07:02] Speaker 04: Exactly, Your Honor. [00:07:03] Speaker 04: We'll be saying, we'll be able to make arguments both that because the custodial sentence was longer than it should have been, the court should compensate for that by reducing supervised release. [00:07:14] Speaker 04: That's one set of arguments we could make. [00:07:16] Speaker 04: And then we could also bring forward evidence under Pepper versus United States. [00:07:20] Speaker 04: So post-sentencing rehabilitation evidence based on the significant amount of time Mr. Ho Romero has already spent in the community. [00:07:29] Speaker 04: Mr. Romero got a lengthy term of supervised release, the high end of the guidelines, and it's certainly not unreasonable to think that the district court would come down from that. [00:07:38] Speaker 01: And the guidelines would permit that? [00:07:40] Speaker 01: Yes, Your Honor. [00:07:40] Speaker 01: Because there was a safety valve, is that right? [00:07:42] Speaker 04: Precisely. [00:07:43] Speaker 04: So the mandatory minimum does not apply. [00:07:45] Speaker 04: And in any case, the harmlessness analysis itself is going to be backward-looking. [00:07:49] Speaker 04: It's going to ask whether this error did affect the sentence, not necessarily will. [00:07:56] Speaker 04: Win or lose on this appeal you could still ask the district court to adjust the term of supervised release based on change Circumstances right we could your honor But we are if we can show or if the government cannot show that this error was harmless We are entitled to a resentencing where we get to make those arguments up front rather than sir Seeking early termination on the back end and unless your honors have any further questions all reserved [00:08:29] Speaker 05: Good morning, Your Honors. [00:08:30] Speaker 05: May it please the Court, Mark Rahe, for the United States. [00:08:34] Speaker 05: In this case, the government's position is twofold. [00:08:36] Speaker 05: One, that the Court did not err in viewing this as an objective issue, and secondly, that even if it did, that the error was harmless. [00:08:45] Speaker 05: Now, when I first got this case, I remember I read Lofton from 1990, and it seems to indicate pretty clearly that there has to be a conscious intent to act with the purpose of obstructing justice, but that case... Right, so why isn't that just binding? [00:08:58] Speaker 05: because that case didn't involve a threat, and it followed the Second Circuit, the Second Circuit, the Eighth Circuit, the D.C. [00:09:06] Speaker 05: Circuit, all have the same rule where they say normally we require proof of a conscious purpose to abstract justice. [00:09:14] Speaker 01: But isn't that what it willfully means? [00:09:17] Speaker 01: I mean, just in English? [00:09:19] Speaker 01: I mean, it's not an objective standard? [00:09:22] Speaker 01: Well, willfully, I'm just saying, these other three courts... Well, that's fine, but I'm asking you, we haven't decided that, and I'm asking you what doesn't willfully mean on purpose with an intent. [00:09:33] Speaker 05: It does, but as the Eighth Circuit says, there are some acts like threatening a prosecutor, threatening a witness. [00:09:39] Speaker 01: Well, as Judge Bennett says, I mean, that kind of information may allow a trier of fact to find the intent, but doesn't he still have to find the intent? [00:09:53] Speaker 05: DC Circuit say it serves as a proxy for that. [00:09:55] Speaker 05: It says if something is so egregious, it serves as an implied finding of intent. [00:09:59] Speaker 01: I want to know what the other circuits have said. [00:10:01] Speaker 01: I want you to address this from the point of view of a court which has said that yes, either has to be a conscious intent and from the point of view of what the statute, what the language says and then tell me how we can find that there's no need for a finding of intent or purpose. [00:10:21] Speaker 05: Because in these circumstances, when you have an objective threat, you have a history of violence by the defendant against Paulina, a history of threat against Brandon. [00:10:33] Speaker 05: When somebody says, if I get in trouble, there's going to be trouble for you, the court says that. [00:10:39] Speaker 05: If that is objectively said, the way that the victims, they testify. [00:10:42] Speaker 01: It could have meant, I suppose, that you're mixed up in this, and if I get in trouble, you're going to get in trouble, too, just as a prediction, not because I'm going to do anything. [00:10:52] Speaker 05: Well, but that, you know, and again, this only needs to be found by preponderance. [00:10:55] Speaker 05: I don't think that the district court can be said, you know. [00:10:57] Speaker 01: But he didn't find it. [00:10:58] Speaker 01: The district court could also find otherwise, but he didn't find anything. [00:11:02] Speaker 05: But the district court still addressed the issue. [00:11:05] Speaker 03: I think you're confusing how the district court can find intent and what intent is actually required or what willfulness. [00:11:16] Speaker 03: Willfulness actually means subjective intent to obstruct justice. [00:11:25] Speaker 03: how someone can prove such intent can be through the objective facts, because we literally can't read someone's mind. [00:11:34] Speaker 03: So I think the cases, at least my understanding of them that you're discussing, talk about all the types of evidence that could show willfulness. [00:11:44] Speaker 03: But we have its law in our circuit that has still good law. [00:11:49] Speaker 03: that the actual intent that needs to be shown is a willful intent to obstruct justice. [00:11:55] Speaker 03: Now the question of what kind of evidence is sufficient to do that, I think it's also a well established rule that you can look at the facts and see whether a reasonable inference from the facts is that the defendant had that willful intent. [00:12:12] Speaker 03: The problem I see here [00:12:15] Speaker 03: is that that was a disputed question of fact and I don't see anything in the record where the district court resolved that disputed question of fact and specifically found that the defendant act with willful intent to obstruct justice. [00:12:32] Speaker 03: So are you conceding there was no express finding to that effect or [00:12:37] Speaker 05: Yes. [00:12:38] Speaker 05: Oh yeah, I can't change this record. [00:12:40] Speaker 05: I'd lose credibility if I came up here and argued otherwise. [00:12:42] Speaker 05: So maybe I will pivot then to harmless error because the important thing I know that the defense, we're not asking this court to make a finding. [00:12:52] Speaker 05: We're asking the court to hold that the district court's failure to make the finding was harmless. [00:12:58] Speaker 01: Well, but then you have to predict that the district court would have found it. [00:13:01] Speaker 01: And why does it make more sense to just ask them? [00:13:03] Speaker 05: Well, because here, I mean, look, take guilt and innocence, neither versus United States. [00:13:08] Speaker 05: If a jury is not told about one element of an offense, this court, Supreme Court has said this court... Yeah, but a jury is different. [00:13:14] Speaker 01: It's a lot harder to go back and ask the jury, right? [00:13:17] Speaker 01: You have to reverse the whole thing at that point. [00:13:18] Speaker 05: Well, but one would think that in the guilt and innocent context, there's harder standards. [00:13:21] Speaker 05: What the Supreme Court has said is even if a jury is not given an element, if there's overwhelming evidence, we can find harmless theory. [00:13:28] Speaker 02: And counsel, we can look. [00:13:29] Speaker 02: at what the district court said and here I agree with your concession but the district court also said and just looking at the words and the context in which you made them and the timing of what was going on, it clearly seems to me that the government has met its burden based on the objective evidence. [00:13:48] Speaker 02: So the district court uses the word objective in two different ways here, one for the standard but also just looking at the evidence before it and when the district court says, [00:13:58] Speaker 02: Clearly met your burden. [00:14:01] Speaker 05: I think that gives us some room to find Harmless error agreed and here you have again, you know the defense stipulated that the testimony from both of these witnesses was uncontroverted and what you know you have from Paulina she says [00:14:16] Speaker 05: I've been beat. [00:14:17] Speaker 05: We had a horrible relationship. [00:14:18] Speaker 05: And yes, she did have her own misdemeanor domestic violence conviction. [00:14:22] Speaker 05: But she's not the person who's the defendant here. [00:14:25] Speaker 05: It's not her words that are at issue. [00:14:27] Speaker 05: It was this defendant that was under an indictment at the time. [00:14:31] Speaker 05: And not only did she say that she was hurt, Brandon, who had no beef in this entire thing, he kind of corroborated that. [00:14:38] Speaker 05: He said, I saw bruises on her. [00:14:39] Speaker 05: They were fighting every time I was in their presence. [00:14:42] Speaker 05: I used to have to get in between them [00:14:45] Speaker 05: Because he was best friends with you. [00:14:47] Speaker 03: So the problem I have here is that the way I read the transcript, the district court was finding that the words used were objectively threatening. [00:14:58] Speaker 03: But objective, making a threat is not the same thing as willfully intending to obstruct justice. [00:15:06] Speaker 03: And as you've conceded, the district court made no finding to that effect. [00:15:09] Speaker 03: And my understanding on our case law is that the district court needs to make [00:15:13] Speaker 03: findings on every disputed issue of fact. [00:15:17] Speaker 03: And finding that the words used were objectively threatening under the circumstances is a separate finding of fact that the district court needed to make. [00:15:30] Speaker 03: And it does not necessarily mean that there was the required intent. [00:15:33] Speaker 03: So we have the act. [00:15:35] Speaker 03: We don't have the mens rea. [00:15:36] Speaker 03: So my understanding is that it's pretty straightforward under these circumstances, under our precedent. [00:15:42] Speaker 03: we should remand for the district court to make the explicit finding they needed to make. [00:15:47] Speaker 05: But that's why in the last set of comments I was making, I was already assuming error, Your Honor. [00:15:52] Speaker 01: This argument goes to harmless error, and I know that the usual... But in the guidelines context, isn't it true that in general if the [00:16:03] Speaker 01: The district court misconstrues the guidelines, which is basically what we're saying, what the defendant is saying here. [00:16:11] Speaker 01: I mean, you're arguing otherwise, but I assume we think that he misunderstood the guidelines by saying it could be objective rather than subjective, that willfully didn't have an intent requirement in some circumstances. [00:16:25] Speaker 01: Then our case law in the guidelines [00:16:29] Speaker 01: area in general says that unless we know from something the district court said that he would have found the same thing on the right standard, we remand because the district court has to apply the guidelines and the 3553A factors in tandem. [00:16:46] Speaker 01: So why isn't this a somewhat special circumstance with regard to Herman Serra? [00:16:52] Speaker 05: I agree, Your Honor. [00:16:53] Speaker 05: That is the general rule. [00:16:54] Speaker 05: Because here, the district court, and I pointed out in the government's brief, two separate places, volume three of excerpt of record pages 165 and 172, he said this is really a 3553 case. [00:17:07] Speaker 01: Well, but he also said, I mean, you tried to get him to say I would have done the same thing otherwise, and he didn't say it. [00:17:14] Speaker 01: Correct. [00:17:15] Speaker 01: right so how can we assume that he would have done the same thing otherwise when he said well the guidelines are really important and you know and and and they're they're basic and I I don't really know what you're asking me yes this is [00:17:28] Speaker 01: a 3553A factor case, but it's also a guidelines case. [00:17:33] Speaker 01: And he just would not agree with you that he would have done the same thing otherwise. [00:17:38] Speaker 05: Right. [00:17:38] Speaker 05: And it would have been nice if we had that. [00:17:40] Speaker 01: Right. [00:17:40] Speaker 01: And so therefore, how can we now step back and say, well, he would have done the same thing otherwise when he refused to say it? [00:17:46] Speaker 05: That's OK, because he said that the 35.3 is the most important thing. [00:17:49] Speaker 05: We cite two cases at page 228 of our book. [00:17:51] Speaker 01: All right, but he didn't say it was the only thing. [00:17:53] Speaker 05: No, he didn't say it was the only thing, but he said it was the most important thing. [00:17:56] Speaker 01: And even before argument, I think... But you're not actually arguing the 35.538 factors. [00:18:02] Speaker 01: You're arguing that subjectively he would have found the same thing as to this threat. [00:18:09] Speaker 01: or this asserted threat, not that there were other things under 3553A that would have made him come out the same way. [00:18:18] Speaker 01: So the 3553A is kind of a red herring here. [00:18:21] Speaker 01: The question is, [00:18:22] Speaker 01: What would he have found as to this in particular? [00:18:25] Speaker 05: Well, I respectfully disagree, Your Honor, because the Court not only says it twice, even when I reviewed the case again yesterday, Volume 3 of the Excerpt of Record 136, after giving his tentatives about the guidelines, the Court says, and so I would like to, of course, hear any argument on the guideline calculations. [00:18:41] Speaker 05: But I principally invite argument under 3553. [00:18:44] Speaker 05: The low end of this defendant's guideline range. [00:18:47] Speaker 01: But that's a different point than the one that you came in here with on harmless error, as I understand it. [00:18:53] Speaker 01: Because when you came in here with an harmless error is that on this issue, not on 3553A in particular, he would have found the same thing. [00:19:02] Speaker 05: Well, it's a second argument in favor of harmless. [00:19:04] Speaker 05: The harmlessness of evidence of subjective intent is overwhelming. [00:19:08] Speaker 05: But in your honor asked me a question, don't we have a rule that's normally a remand? [00:19:13] Speaker 05: And I'm saying, no, you don't have that if you have, you know, we cited two cases at page 28 of our answering brief, Oblido and Solis, where this court has found harmless error when a court says, the district judge says that 3553 was what mattered. [00:19:28] Speaker 02: So, counsel, unless you have something further in response to Judge Fersen's question, can you conclude? [00:19:34] Speaker 01: What they actually said was, [00:19:36] Speaker 01: The guidelines, of course, are a benchmark. [00:19:39] Speaker 01: They are presumptively reasonable, but they are the benchmark. [00:19:45] Speaker 01: And the guidelines, of course, are important, but the most meaningful analysis to me was under 3553A. [00:19:53] Speaker 01: He just refused to back out the guidelines when you asked him. [00:19:56] Speaker 05: And yet he gave the defendant a sentence almost 60 months lower than the low end of those guidelines that now the defense would have the court believe are the most important thing to him when all evidence was to the contrary. [00:20:07] Speaker 05: Unless there are further questions, the court, the government, would submit. [00:20:10] Speaker 02: All right. [00:20:11] Speaker 02: Thank you. [00:20:15] Speaker 02: You have some time left, counsel. [00:20:17] Speaker 04: Thank you, Your Honor. [00:20:18] Speaker 04: I don't have much else to add. [00:20:20] Speaker 04: I just want to emphasize a couple of things that Judge Sung and Judge Berzon [00:20:25] Speaker 04: stated. [00:20:26] Speaker 04: In that portion of the transcript where the district court said that the government had clearly met its burden based on the objective evidence, the court was evaluating the wrong burden. [00:20:40] Speaker 04: The court thought that the only burden was to show that objectively a witness would have understood [00:20:48] Speaker 04: his words to be threatening. [00:20:51] Speaker 04: And so that cannot be taken to mean that he would have found that the objective evidence clearly showed intent. [00:21:00] Speaker 04: And in fact, it's notable that even though defense counsel asked the court for an intent finding multiple times, the court declined to give one. [00:21:08] Speaker 04: That's at least some suggestion that maybe this wasn't so straightforward. [00:21:12] Speaker 04: Otherwise, perhaps the district court would have just said, oh, well, in any case, he had the subjective intent [00:21:17] Speaker 04: to threaten. [00:21:19] Speaker 04: I also just want to reemphasize that we did object to intent in the PSR objections. [00:21:25] Speaker 04: Your Honor's case law requires strict compliance and so therefore an implicit finding would not be sufficient. [00:21:33] Speaker 04: Your Honor's case law would require an explicit finding of intent. [00:21:36] Speaker 03: I just want to confirm [00:21:39] Speaker 03: we were to agree that with you that there needed to be a showing not just that the words used were objectively threatening, but also that the defendant needed to have the willful intent to obstruct justice and that is a subjective requirement It would on remand that district court be allowed to draw a [00:22:04] Speaker 03: objectively reasonable inferences from the facts, because I think the word reasonable is perhaps overused in this context. [00:22:12] Speaker 03: So that would not convert the finding into an objective standard. [00:22:17] Speaker 03: It would still have to be a subjective, willful intent. [00:22:20] Speaker 03: But the way that they could find it is by drawing reasonable inferences from the facts. [00:22:24] Speaker 04: Absolutely. [00:22:25] Speaker 04: I totally agree with your honor that you can't read a defendant's mind. [00:22:29] Speaker 04: And so you're going to have to do that kind of analysis. [00:22:32] Speaker 04: Thank you. [00:22:32] Speaker 01: One other question. [00:22:34] Speaker 01: Is it, I'm not so sure what the, there is a sentence in Everett, I guess it is, that, what is the name of the case that, the Second Circuit case that they're relying on? [00:22:47] Speaker 04: Oh, there's Hernandez, there's Archer. [00:22:49] Speaker 01: Not Hernandez, the one that they say. [00:22:53] Speaker 04: Oh, Reed. [00:22:55] Speaker 01: I'm sorry? [00:22:56] Speaker 04: Reed, the one where they adopt the apparently obstructed test. [00:22:58] Speaker 01: Right, okay. [00:22:59] Speaker 01: But is it really, [00:23:03] Speaker 01: What would we be creating a circuit conflict if we said that willfully is a subjective standard? [00:23:12] Speaker 01: Always. [00:23:12] Speaker 01: I mean, when they said objective in those cases, did they mean, and that was the end of the story, or did they mean that, as we've been saying, that you can infer from objective facts? [00:23:22] Speaker 04: Well, Your Honor, Reed does say that for inherently obstructive conduct, quote, it is sufficient that the defendant willfully engaged in the underlying conduct, regardless of his specific purpose. [00:23:36] Speaker 04: So it does seem to be adopting this objective standard. [00:23:40] Speaker 04: But importantly, in the Second Circuit, threats to witnesses are not inherently obstructive. [00:23:47] Speaker 04: Both in Hernandez and in Archer, the Second Circuit held that intent is required. [00:23:52] Speaker 04: So to side with the government would in fact create a circuit slip. [00:23:56] Speaker 02: All right. [00:23:57] Speaker 02: Thank you, counsel. [00:23:58] Speaker 02: Thank you. [00:23:59] Speaker 02: We thank both counsel for their arguments. [00:24:01] Speaker 02: The case argued, just argued, is submitted and with that we'll move to the next case on the argument calendar.