[00:00:00] Speaker 05: Thank you, Judge Lee. [00:00:01] Speaker 05: Raymond Moss for Dante Hunt, the appellant, and may it please the court. [00:00:04] Speaker 05: There are multiple independent grounds for vacature of the judgment below. [00:00:08] Speaker 05: I plan to focus on the three lead issues in the reply brief, the two sentencing issues, excuse me, the two suppression issues and the recusal issue. [00:00:16] Speaker 05: If the court agrees with Mr. Hunt on these issues, the court would not need to reach the sentencing or the Bruin issues, but I'm happy to take questions there as well. [00:00:23] Speaker 05: The district court aired both as a factual and legal matter when it concluded that at the time of the seizure, the objective facts available to the Eugene police indicated that they had a phone with no known owner and that it had been voluntarily abandoned. [00:00:40] Speaker 05: That finding was primarily based upon the argument accepted by the district court. [00:00:46] Speaker 05: that the Eugene police believed the white iPhone that Mr. Hunt had at the hospital that was seized from him was the phone that was on the surveillance camera that they reviewed at the scene of the crime because they couldn't tell the color of the phone from the surveillance camera itself. [00:01:02] Speaker 05: That just doesn't make good sense when Mr. Hunt is seen on camera being shot out by the assailant. [00:01:10] Speaker 05: The assailant flees off camera away from Mr. Hunt [00:01:13] Speaker 05: He falls to the ground off camera, and the phone is then found a few feet from where Mr. Hunt had fallen. [00:01:19] Speaker 03: The government is- Council, can I ask you a question? [00:01:22] Speaker 03: If we agree with you that the abandonment doctrine has no application here, then what? [00:01:28] Speaker 05: Then the court needs to decide whether the 25-month delay between the initial seizure by the Eugene police and the federal government's ultimate search of the cell phone was an unreasonable delay in time. [00:01:41] Speaker 02: Unreasonable. [00:01:43] Speaker 05: I'm sorry, Your Honor, can you repeat that? [00:01:45] Speaker 02: What's your best argument that it would have been unreasonable? [00:01:48] Speaker 05: Well, it's a balancing inquiry. [00:01:49] Speaker 05: And the government has put forth no argument as to why the Eugene police, when they seized the phone and kept it for 25 months, had an interest in holding onto that phone. [00:02:00] Speaker 01: Well, wasn't the phone part of a crime scene? [00:02:03] Speaker 01: I mean, someone had been shot. [00:02:06] Speaker 01: It was seized at the crime scene. [00:02:08] Speaker 01: So you're not arguing the seizure itself was unconstitutional, but rather the time it was kept. [00:02:14] Speaker 05: I don't think the court has to reach whether the initial seizure was unconstitutional. [00:02:19] Speaker 05: We do make the point in the brief that there was no probable cause for the seizure. [00:02:22] Speaker 05: And the government, the Eugene police specifically, never searched for the phone. [00:02:28] Speaker 01: But the court is next. [00:02:29] Speaker 01: They found the phone within, as you just argued, within a few feet of where this person had been shot. [00:02:35] Speaker 01: And they took it into custody because it potentially could have been evidence of a crime, which was, as I understand it, still an open crime two years later. [00:02:44] Speaker 01: And it was in evidence in that crime. [00:02:47] Speaker 01: So is that really an unreasonable amount of time to hold potential evidence from a crime scene? [00:02:53] Speaker 05: I think there are a couple assumptions built into your honor's question. [00:02:56] Speaker 05: The first is that the phone is somehow connected or could lead to evidence connecting the shooter to the act that they were investigating, which was an assault of Mr. Hunt. [00:03:05] Speaker 05: Mr. Hunt was a victim of the crime. [00:03:07] Speaker 05: That's not disputed by anybody. [00:03:10] Speaker 05: So holding onto a phone that there's really good indication was Mr. Hunt's. [00:03:13] Speaker 05: The government itself, the federal government, when it applied for a search warrant over two years later, [00:03:19] Speaker 05: had to have probable cause to search the phone. [00:03:21] Speaker 05: And in their search warrant, they said it was found a few feet from where Mr. Hunt fell, which was consistent with him dropping it. [00:03:26] Speaker 05: So the fact that the government says that the Eugene police wasn't clear to them whose phone it belonged to, one, there was no Eugene officer at the suppression hearing to testify to that. [00:03:36] Speaker 05: This is purely the federal government vouching for what was clear to the Eugene police. [00:03:40] Speaker 04: But the Eugene police, they [00:03:42] Speaker 04: When they talked to him, he had two phones, so they may have assumed the white iPhone they found with him at the hospital was his phone. [00:03:49] Speaker 04: The black iPhone, they weren't sure whose it was, but it was near the crime scene. [00:03:54] Speaker 04: They kept it. [00:03:54] Speaker 04: They didn't know who it belonged to. [00:03:56] Speaker 04: So, I mean, it seems to make sense they would just hold on to it. [00:03:59] Speaker 05: Well, if they believed that it would have led to evidence to support their investigation, then they would have applied for a search warrant. [00:04:05] Speaker 05: And the government doesn't argue that they, in fact, did that. [00:04:08] Speaker 05: They just held onto a phone. [00:04:09] Speaker 05: It appears they held onto it for the exact reason why we're here. [00:04:12] Speaker 05: They believed it was connected to Mr. Hunt, and it eventually would have been relevant to a investigation. [00:04:17] Speaker 03: But you're not challenging the initial, I think it's Judge Bingo, just clarified. [00:04:23] Speaker 03: It's at the crime scene. [00:04:24] Speaker 03: You're not arguing that it was unlawful for them to collect it at that time. [00:04:28] Speaker 03: Once you get past that, it seems to me you would have to be telling us there was some intervening event that would put them in a position where it was unlawful for them to continue to retain something they thought may have evidence of a crime. [00:04:44] Speaker 03: This part of your argument strikes me as really tough. [00:04:50] Speaker 05: Yeah, so I mean, I think there are other doctrines that could apply here. [00:04:53] Speaker 05: The government has not made these arguments, right? [00:04:55] Speaker 05: So if the officers came across a cell phone, and let's say it was at a restaurant, and they collected trying to try to find out who the owner is, right? [00:05:04] Speaker 05: You might have, in that instance, a community caretaking type exception applying. [00:05:08] Speaker 05: Here, arguably, an inventory type exception applies. [00:05:12] Speaker 05: But under this court's precedent, most recently in an en banc decision in Anderson from a term or two ago, [00:05:17] Speaker 05: The court said that you have to look at the reasonableness of the seizure against the governing regulations for the police. [00:05:27] Speaker 05: So we cite in our reply brief both the local Eugene Code and the Eugene Police Manual that says that when you come across lost property or abandoned property, there's an obligation to provide notice. [00:05:39] Speaker 01: But you've already argued this wasn't abandoned. [00:05:42] Speaker 01: He dropped it when he was shot. [00:05:44] Speaker 01: And I think that I'm in tendency here to find that the court misapplied the abandonment theory in this case. [00:05:52] Speaker 01: Abandonment requires some state of mind that you intended to give something up. [00:05:58] Speaker 01: And I don't think that Mr. Hunt was in a state of mind at that moment to be giving anything up intentionally. [00:06:03] Speaker 01: He lost what ultimately proved to be his phone. [00:06:07] Speaker 01: But you got 13 minutes and a lot of other topics. [00:06:11] Speaker 01: I'm inclined to ask you to move on to something else. [00:06:14] Speaker 05: Can I just address one thing, Your Honor, before moving on? [00:06:17] Speaker 05: I think Your Honor's point sort of proves why the abandonment exception just doesn't apply here as a matter of law. [00:06:25] Speaker 05: Council, we're not pushing back on that. [00:06:29] Speaker 05: All right. [00:06:30] Speaker 05: So just turning to the Franks issue and the second sort of suppression issue here, this issue is really straightforward. [00:06:37] Speaker 05: The first search warrant that the Portland Police Bureau, which was working in a joint investigation with federal authorities, both applied for and received was a July 5th search warrant for a cell phone ending 5-1-1-4. [00:06:50] Speaker 05: That cell phone [00:06:52] Speaker 03: Council, you've briefed this really carefully, and you've done an excellent job. [00:06:57] Speaker 03: So if we could cut to the chase here. [00:07:00] Speaker 03: I think you're challenging, and you have a good reason to challenge the geolocation warrants, right? [00:07:06] Speaker 03: Because there's information missing from that first warrant application that would have impeached the first confidential informant, right? [00:07:14] Speaker 03: That's what we're getting to? [00:07:14] Speaker 03: Right. [00:07:16] Speaker 03: So can I ask you to move to, if I agree with you about that, and I just went at a three, [00:07:21] Speaker 03: But I think you have gained some traction there. [00:07:24] Speaker 03: What about the second confidential informant? [00:07:27] Speaker 03: Why wasn't that adequate support for the premises warrant? [00:07:31] Speaker 05: Absolutely, Your Honor. [00:07:32] Speaker 05: So for a few reasons. [00:07:33] Speaker 05: One, you have a second [00:07:37] Speaker 05: informant, making a first appearance in the most relevant search warrant applications that the federal government applied for, which was the premises warrants. [00:07:45] Speaker 05: That individual did not appear in any of the, I believe, five previous search warrants, including one filed four days before by the federal government. [00:07:53] Speaker 05: That's right. [00:07:54] Speaker 05: Yeah. [00:07:55] Speaker 05: And the agent that was applying for the premises warrant is the same agent that was repeatedly misleading the court throughout this entire process, Mr. McCollister. [00:08:05] Speaker 05: That alone should give this court pause as to accepting that representation in the affidavit. [00:08:11] Speaker 05: But the government also relies on... Wait a minute. [00:08:14] Speaker 03: Accepting what representation? [00:08:16] Speaker 03: That confidential source number two was not... [00:08:19] Speaker 03: connected to confidential source number one, or is there some other representation? [00:08:23] Speaker 05: Yeah, so both of that, Your Honor. [00:08:25] Speaker 05: But also, part of the reason there was corroboration between the second informant and the first is reference to the 5114 phone number. [00:08:33] Speaker 05: So that piece of connected evidence comes directly from the July 5th search warrant. [00:08:39] Speaker 05: The court doesn't need to get into sort of the- Wait a minute. [00:08:42] Speaker 03: They both have confidential informants. [00:08:44] Speaker 03: The first one didn't identify him by name, only 5114. [00:08:47] Speaker 03: But the second one does both, right? [00:08:49] Speaker 03: 5114 and Hunt by name. [00:08:52] Speaker 03: Yes? [00:08:52] Speaker 05: Correct. [00:08:53] Speaker 05: And that... I have it in my notes. [00:08:54] Speaker 05: So why isn't that enough? [00:08:56] Speaker 05: So that's fruit of the poison industry. [00:08:57] Speaker 05: The government, through using the July 5th search warrant, was able to connect Mr. Hunt to the 5114 phone. [00:09:05] Speaker 03: Without that evidence, you would only have a... No, I'm asking, I'm inviting you to set aside everything that flowed from the first warrant. [00:09:13] Speaker 03: That's what I'm inviting you to do. [00:09:15] Speaker 03: And then asking why confidential informant number two isn't sufficient for that premises warrant. [00:09:20] Speaker 03: Because at that time, if you sort of zoom in to that, and it seems that they know who Mr. Hunt is because he was released from prison for prior drug charges. [00:09:28] Speaker 03: They know he was the subject of this shooting that we talked about. [00:09:33] Speaker 03: They know that confidential informant number two has identified he's dealing drugs. [00:09:39] Speaker 03: I guess that would be consistent with this prior course of dealings. [00:09:44] Speaker 03: His driver's license identified the Deacon Street house, the premises at the ER 159, identifies 2843 Deacon Street as his residence. [00:09:56] Speaker 03: Why isn't that what I just summarized enough for that second? [00:10:00] Speaker 03: for the premises warrant. [00:10:01] Speaker 05: I understand, Your Honor, but it is the identification of Mr. Hunt through, there are two aspects to this answer. [00:10:07] Speaker 05: So the identification of Mr. Hunt through the July 5th warrant steered an investigation towards him. [00:10:13] Speaker 05: The government represented multiple times in search warrant affidavits that they were stretched thin with the resources, they needed to be able to identify who the user of these phones were in order to be able to inform their use of limited resources in multiple parallel investigations. [00:10:27] Speaker 05: So the identification of Mr. Hunt and then subsequent identification of his ID, things of that nature, that would all be fruit of the poisonous tree flowing from the July 5th search warrant. [00:10:38] Speaker 05: And the other sort of categories of evidence, sort of three broad categories the government points to in the premises search warrant, [00:10:46] Speaker 05: by itself do not rise to the level of a fair probability of both guns and drugs being in the Deakin residence. [00:10:52] Speaker 05: So you have Walmart transfers that have no that the government says come from no legitimate source. [00:11:00] Speaker 05: The government. [00:11:01] Speaker 03: That's that's that's I think I put that in the first category because that's the fruit of I think the geolocation war. [00:11:08] Speaker 05: I would agree with you, madam. [00:11:10] Speaker 05: So we're really left. [00:11:11] Speaker 03: I'm still trying to give you the stuff that I think they had that's not proved. [00:11:15] Speaker 03: I'm trying to ask you why wouldn't that have been enough? [00:11:18] Speaker 05: Yeah, I think a single representation by one informant that is [00:11:24] Speaker 05: based upon a Affidavit sworn to the court by an agent that has repeatedly lied over the past three months or excuse me misled the court over the previous three months just leads to a really problem You know a really problematic finding that a agent could mislead the court repeatedly and then say oh, I have a second Search I have a second excuse me informant [00:11:43] Speaker 05: saying the same thing the first one did. [00:11:45] Speaker 05: I should get the search warrant. [00:11:46] Speaker 01: But do you have anything to offer that that second informant wasn't real or was somehow made? [00:11:51] Speaker 01: I mean, it's like implying they made up a second person. [00:11:55] Speaker 01: And to the question as to the first person, [00:12:00] Speaker 01: does it count at all that it corroborates to some extent that person's testimony about they identified a phone number that they were dealing with when when that person was arrested with the overdose issue in the five one one four number which was in the phone [00:12:15] Speaker 01: contemporaneous to these discussions, whether or not this person didn't just make up, oh, Mr. Hunt, I know Mr. Hunt, it's Mr. Hunt. [00:12:23] Speaker 01: There was evidence that actually corroborated that this was the person that, this phone number was the person that conformant was, [00:12:33] Speaker 01: communicating with. [00:12:34] Speaker 01: So what would have happened in this Frank's hearing? [00:12:38] Speaker 01: I mean, really, would it have really changed anything? [00:12:40] Speaker 01: Because this wasn't someone who just came in and said, oh, I know a guy, and he's the guy who's doing this. [00:12:47] Speaker 01: And you can just trust me, there was some actual physical evidence that corroborated what was represented to the court. [00:12:54] Speaker 05: So Your Honor, I guess two points. [00:12:56] Speaker 05: Just one, the corroborating evidence is not as strong as your question suggests. [00:13:03] Speaker 05: In her phone records, AH's phone records, there was indication that she was getting pills from multiple people. [00:13:10] Speaker 05: And that was exactly what she said to the police when she was being interviewed after being arrested. [00:13:16] Speaker 05: So they're conflicting representations. [00:13:18] Speaker 05: This is an individual with a 12 page long rap sheet, including lying to the police to set up other people. [00:13:23] Speaker 01: But the phone number was in there at the relevant time when the transactions that led to this person who overdosed happened. [00:13:30] Speaker 01: So why would they not have looked at who that phone number belonged to? [00:13:35] Speaker 01: Why is that so, like, far-fetched that they would have traced that phone to Mr. Hunt at some point anyway? [00:13:41] Speaker 05: So the inquiry to get a Frank's hearing here is, and by the way, the government is not disputing that the two prongs for Frank's have been satisfied. [00:13:49] Speaker 05: They're just arguing that there's sufficient independent evidence to justify the premises warrants. [00:13:54] Speaker 05: But the inquiry is whether there was intentional or reckless disregard of leaving certain information out. [00:14:04] Speaker 05: long rap sheet and settle law on this court that that type of information not being given to a magistrate judge that undermines the credibility of your sole source that by itself distinguishes any potential probable cause so the fact that there is sort of this thread of corroboration when you also have other evidence showing that she lied repeatedly throughout the interview and there are other people she was getting drugs from that just wouldn't rise to the level of probable cause under the second prong of Frank's [00:14:33] Speaker 04: You mentioned the agent had repeatedly lied or misled the court. [00:14:38] Speaker 04: One is obviously what you're pointing out to, omitting the convictions for lying to the police. [00:14:42] Speaker 04: What are the other things that the agent misled the court on? [00:14:47] Speaker 05: Well, repeatedly, not including the information. [00:14:50] Speaker 04: So it's on the repeatedly. [00:14:51] Speaker 05: And then frankly, when it was disclosed, the informant's criminal history was disclosed. [00:14:58] Speaker 05: It was done so. [00:14:59] Speaker 05: in a footnote on the 16th page of a 27-page search warrant affidavit in the last sentence of the footnote. [00:15:03] Speaker 05: So rather than actually inform the court of the mistake, it was just buried deep into the search warrant affidavit. [00:15:10] Speaker 01: I mean, those things are always in a footnote. [00:15:14] Speaker 01: I mean, I'm a district judge. [00:15:16] Speaker 01: I was a magistrate judge. [00:15:17] Speaker 01: I mean, they're not the lead paragraph for an informant. [00:15:21] Speaker 01: They're a footnote to an informant's history. [00:15:23] Speaker 05: I think given the number of search warrants, geolocation warrants here that are incredibly invasive of privacy and the fact that such a meaningful amount of information that undermines their sole informants credibility was left out. [00:15:37] Speaker 05: That's something that should have been brought to the court's attention at the forefront. [00:15:41] Speaker 03: It should have been brought to the court's attention. [00:15:43] Speaker 03: Absolutely. [00:15:44] Speaker 03: So I just want to make sure that I'm understanding your response counsel clearly as to why the second informant wasn't enough. [00:15:51] Speaker 03: And what I'm hearing you saying is that [00:15:53] Speaker 03: It was fishy that she showed up right and that only at the September 25th level and the court should have looked at that with a more jaundiced eye. [00:16:03] Speaker 03: Do I miss something in your response? [00:16:04] Speaker 05: I think that's right. [00:16:05] Speaker 05: I think I would just caveat that with, on these facts, if the court were to sort of find that that was sufficient evidence for probable cause here, it would lead to this rule where an agent could repeatedly leave material information out of multiple search warrants and then later on sort of make this representation to get out of a franks hearing. [00:16:25] Speaker 05: This is something that should go back to a Frank's hearing. [00:16:27] Speaker 05: If it was, in fact, the case that there was a second informant, there can be an in-camera review of that. [00:16:32] Speaker 05: And the court can also actually take the testimony of Mr. McAllister, who, by the way, in his affidavit, could not even provide a reason why he failed to include Ms. [00:16:41] Speaker 05: Hill's information in these search warrants. [00:16:43] Speaker 05: That's something for the court to make a credibility determination on at a Frank's hearing. [00:16:46] Speaker 05: That's not something to be affirmed and sort of create a new rule to sort of circumvent a Frank's hearing on these facts. [00:16:52] Speaker 05: Yes, thank you your honor. [00:16:55] Speaker 05: So the government relies very heavily on United States versus Silver and there were three primary facts in that case that gave the court comfort that there was not an appearance of partiality. [00:17:05] Speaker 05: One is the US attorney had ceased being the US attorney five years before the indictment. [00:17:10] Speaker 05: The second is that the US attorney was not involved in the conviction itself and the third fact is that [00:17:17] Speaker 05: at the sentencing hearing before the judge, who had subsequently become a judge, the federal government did not put before that judge anything that required the judge to make a determination about the earlier sentence, and the earlier case for that matter. [00:17:31] Speaker 05: All three of those facts and more are present here. [00:17:34] Speaker 05: You have the judge in this case being the US attorney when two subsequent indictments, two superseding indictments were filed, including adding multiple charges to the case. [00:17:44] Speaker 05: You had the US attorney being present through the sentence. [00:17:47] Speaker 05: And you had at the sentencing hearing below the same AUSA arguing to his former boss that the earlier sentence, a 20-year sentence that was secured, should be the benchmark against which the court measures the current sentence. [00:18:03] Speaker 05: Those facts, as a whole, are problematic, but they're even more problematic given that the President of the United States commuted that sentence, that 20-year sentence, after 13 years, purportedly because it just was not a just sentence in his view. [00:18:16] Speaker 05: So using a 20-year sentence as a benchmark here really raises the appearance of, in the words of sort of Williams, the Supreme Court's case, that a judge would be psychologically wedded to the judge's former position as a prosecutor now that they're a judge. [00:18:30] Speaker 04: I know there's some language saying, you know, AUSA's conduct can be imputed to the supervisor, the U.S. [00:18:37] Speaker 04: attorney. [00:18:38] Speaker 04: But here, I mean, again, she was the U.S. [00:18:40] Speaker 04: attorney. [00:18:40] Speaker 04: She probably oversaw literally hundreds of drug cases. [00:18:44] Speaker 04: You know, realistically, would she remember a particular drug case? [00:18:48] Speaker 04: I mean, this is not something factually unique. [00:18:50] Speaker 04: I mean, this is probably dime a dozen here. [00:18:53] Speaker 05: So your honor's right, Arne Pricer, this court's opinion imputes the knowledge and acts of the AUSAs to the U.S. [00:19:01] Speaker 05: attorney himself or herself. [00:19:02] Speaker 05: But actual knowledge or actual bias is not something that's relevant to the inquiry. [00:19:07] Speaker 05: The Supreme Court said unlikely that it is the appearance of partiality, the appearance of bias that is the most relevant thing here. [00:19:14] Speaker 05: So given that those acts of line agents are imputed, [00:19:16] Speaker 05: to the U.S. [00:19:18] Speaker 05: attorney herself, it would raise for the normal person on the street, maybe not you or I, but the normal person on the street would question whether or not there is the level of impartiality that's required of a federal judge, particularly at sentencing where there's a very, very broad amount of discretion given to judges. [00:19:34] Speaker 01: Even if the U.S. [00:19:36] Speaker 01: attorney came in and argued that the previous sentence that the defendant had received was not sufficient to deter him from criminal conduct, the guideline range here [00:19:48] Speaker 01: was well over 200 months in this case. [00:19:53] Speaker 01: No matter how you calculate it, if you calculate it based on a 38 as the offense level at a criminal history category 2 or a 36, if you use 30 as the base offense level, you're still at a criminal history, you're over 200 months. [00:20:08] Speaker 01: So how is that? [00:20:09] Speaker 01: I mean, all judges look at someone's prior criminal history. [00:20:13] Speaker 01: It's part of the 3553A factors you've got to look at. [00:20:17] Speaker 01: So the fact that she would have been aware and that the prosecutor would have argued his previous sentencing and criminal history, how does that make it a bias? [00:20:26] Speaker 01: I mean, it's a factor. [00:20:28] Speaker 05: Well, it sounds like Your Honor is sort of pointing out that this could be sort of harmless, say, or given the size of the sentence to some extent. [00:20:34] Speaker 05: This court said in Steele and Culp that even two criminal history points, it's going to be two points in the calculus that leads, in that case, led to a couple year difference in the guidelines range. [00:20:46] Speaker 05: That's material enough for there to be a vacatur and a remand. [00:20:50] Speaker 05: Here, part of the concern, and this touches on the sentencing issues as well, is that the court found that Mr. Hunt was an armed career criminal under the ACCA. [00:20:59] Speaker 05: That carries heavy sentencing weight. [00:21:01] Speaker 01: Right, but she sentenced him under a criminal history category two, regardless of having found that he qualified under the ACCA. [00:21:08] Speaker 01: She applied a guideline range that was at the criminal history category two, which was as properly calculated criminal history. [00:21:16] Speaker 05: I'm not sure it's as clear as your honor is saying but She also made findings about sort of the drug quantity as well, right? [00:21:23] Speaker 05: So treating every single pill seized when only about 90 pills were seized and tested and there were about 200 and 2800 pills that were untested and there was no evidence sort of Connecting those pills to the ones that were tested that had an eight eight two one five or an eight on them all of those things I think would really raise concerns for a normal person on the street as to the [00:21:45] Speaker 05: partiality, excuse me, the impartiality of a judge. [00:21:49] Speaker 05: Great, thanks. [00:21:50] Speaker 04: Judge Christen, do you have any more questions? [00:21:52] Speaker 04: Nothing further, thank you. [00:21:54] Speaker 04: Great, thank you. [00:21:54] Speaker 04: I know we asked you a lot of questions, so time's up, but we'll give you two minutes for rebuttal. [00:22:09] Speaker 00: May it please the court, Suzanne Miles for the United States. [00:22:12] Speaker 00: Here with me also is AUSA Sarah Barr. [00:22:15] Speaker 00: If the court has any questions on the Bruin issue, she's here to handle those, although we don't have any affirmative argument on that unless the court needs to hear anything. [00:22:25] Speaker 00: With regard to the issues that my opponent argued, [00:22:31] Speaker 00: To be honest with you, I think that the court's questions show a mastery of the record that I'm not sure I can add anything to. [00:22:39] Speaker 00: So unless your honors have questions, I don't want to take your time on issues that have already been fully briefed. [00:22:45] Speaker 01: Well, I mean, this is a significant question. [00:22:48] Speaker 01: I mean, assuming, and I think we're all on the same page right now, that the abandonment issue was misapplied here. [00:22:54] Speaker 01: Not that abandonment can't ever be applied to a phone or the digital content of a phone. [00:22:59] Speaker 01: But in the facts of this case, it seems there was no intent on the part of Mr. Hunt to give away his phone and everything that was in it. [00:23:07] Speaker 01: It was locked. [00:23:08] Speaker 01: It was all those things. [00:23:10] Speaker 01: But it was seized at a crime scene. [00:23:12] Speaker 01: And their primary argument, I think, is it was seized and held for too long a period of time when they should have been able to ascertain that it was Mr. Hunt's phone and give him the opportunity to reclaim it. [00:23:23] Speaker 01: Nobody did that. [00:23:24] Speaker 01: They held onto it for a little over two years. [00:23:27] Speaker 01: And then the federal government had an indication this phone could be connected to a different investigation, got a warrant, and seized it. [00:23:35] Speaker 01: So what's your response on the time frame? [00:23:38] Speaker 00: So I think a couple of things. [00:23:40] Speaker 00: And I would like to touch on the abandonment issue, but I'm going to leave that for the end. [00:23:44] Speaker 00: With regard to the time frame itself, this conflates the actions of the Eugene Police Department, which was investigating a shooting. [00:23:53] Speaker 00: and the federal drug investigation, which was completely independent from the Eugene Police Department. [00:23:58] Speaker 00: So the question with regard to Eugene is whether they seized that phone lawfully, whether they had a reason to hold it. [00:24:07] Speaker 00: And here they seized it as part of a shooting investigation. [00:24:11] Speaker 00: They held it into evidence. [00:24:12] Speaker 00: They kept it in evidence for a little bit under two years at that point. [00:24:18] Speaker 00: And what the court found, and remember, these are factual findings that this court is to review for clear error. [00:24:24] Speaker 00: Judge Emmerget looked at these facts, and what she determined was that the defendant was in fact [00:24:31] Speaker 00: on notice that Eugene Police Department likely had that phone. [00:24:35] Speaker 00: He had enough information to put him effectively on notice. [00:24:38] Speaker 00: And he never sought its return. [00:24:40] Speaker 00: He never sought the return of the black iPhone, nor did he seek the return of the white iPhone. [00:24:46] Speaker 03: Excuse me, counsel. [00:24:47] Speaker 03: What evidence is there that he knew they had that phone? [00:24:51] Speaker 00: So what the court relied on, Your Honor, is the conversation that happened at the hospital. [00:24:56] Speaker 00: So when the police went and saw Mr. Hunt at the hospital, they let him know that they were investigating the crime scene. [00:25:06] Speaker 00: He was aware that they were taking his white iPhone as potential evidence of that crime. [00:25:12] Speaker 00: The defense counsel actually, at that hearing, [00:25:17] Speaker 00: stated that Mr. Hunt knew the Eugene police officer who spoke to him. [00:25:22] Speaker 00: He was aware that it was Eugene police and actually recognized the officer. [00:25:26] Speaker 00: He was aware that his keys had been recovered from the crime scene, from where they had been dropped, and those keys were ultimately returned to an associate of his. [00:25:37] Speaker 00: And he was also aware that other evidence had been taken from his girlfriend after dropping him off [00:25:43] Speaker 00: at the hospital. [00:25:45] Speaker 00: So he was well on notice that Eugene was investigating the shooting, that he was identified as a victim. [00:25:52] Speaker 03: It's quite different than knowing they've got his black cell phone. [00:25:55] Speaker 03: And they gave him a receipt for the white cell phone. [00:25:57] Speaker 03: So I don't see that this is supported very well. [00:26:00] Speaker 03: Is there something we're missing? [00:26:02] Speaker 03: In order for him to abandon, he has to be aware that they've got it. [00:26:05] Speaker 03: And I don't see anything that's persuaded me that he was aware that they had the black. [00:26:10] Speaker 00: Your Honor, the standard is preponderance of the evidence. [00:26:12] Speaker 00: And again, this court reviews the district court's factual findings for clear error. [00:26:17] Speaker 00: So putting those things together, Judge Emerget looked at those surrounding facts and didn't find beyond a reasonable doubt for sure that Mr. Hunt knew absolutely that Eugene Police had his black iPhone, but what she said was that the circumstances were enough [00:26:33] Speaker 00: that he could at least infer that if he was missing this black iPhone that he had at the time that he was shot, it was likely that Eugene Police had picked it up along with all of the other evidence that they had picked up at that crime scene. [00:26:46] Speaker 00: That if he had dropped it and it no longer was there, certainly somebody else may have picked it up. [00:26:52] Speaker 00: But by a preponderance, he was at least on notice that if he was looking for it, he could go to Eugene Police and ask if they had it. [00:26:59] Speaker 00: And neither he nor any of his associates ever did that. [00:27:03] Speaker 03: And so... Can you take me to shift gears, please? [00:27:07] Speaker 03: I'm interested in the first geolocation warrant had some omitted information that strikes me as quite pertinent because it would have impeached the witness. [00:27:17] Speaker 03: But I've been focusing in my questions on the second confidential informant. [00:27:23] Speaker 03: And when we get to that part, there's some, the briefing kind of goes back and sweeps in [00:27:29] Speaker 03: When I say that point, I mean the point at what would they know, right, just from the second confidential informant. [00:27:33] Speaker 03: And they certainly would have known about Judge Hunt or Mr. Hunt's history, and they would have known about the shooting. [00:27:39] Speaker 03: And then they have this second confidential informant indicating that he's dealing drugs. [00:27:43] Speaker 03: And as I indicated in my earlier question, his driver's license connects him to the Deacon Street House. [00:27:49] Speaker 03: So just looking at that premises warrant alone, I think the briefing sweeps in, the government's briefing sweeps in knowledge of the Walmart [00:27:59] Speaker 03: transactions. [00:28:00] Speaker 03: And that strikes me as problematic, very problematic, because I think the only thing I can see in the record that led the government to the Walmart transactions is the geolocation ones. [00:28:13] Speaker 03: But there is a declaration that's a little bit cryptic from an IRS agent that starts with, so he's got those transactions in hand. [00:28:22] Speaker 03: We can't tell how he got them. [00:28:23] Speaker 03: Can you connect those dots? [00:28:25] Speaker 00: Yes, so this investigation was a dual effort by the IRS and by FBI and Portland police. [00:28:34] Speaker 00: And so the IRS agent was independently looking, not independently, they were cooperative, but the IRS agent was essentially chasing the money. [00:28:44] Speaker 00: And so it was the IRS piece of this investigation that looked into these money transfers. [00:28:49] Speaker 03: How does the IRS get onto Hunt's trail? [00:28:52] Speaker 03: The first trail location warrant said 5114. [00:28:55] Speaker 03: It didn't have Hunt's name in it, as you know. [00:28:58] Speaker 03: That number was registered to a woman, completely different person, not Hunt. [00:29:04] Speaker 03: It wasn't until the second interview with the First Informant that they were able to show a photo, and then she identified. [00:29:10] Speaker 03: You can see the fruits argument, as you know very well. [00:29:14] Speaker 03: I'm just trying to figure out if we're focusing just on confidential informant number two and what goes into that basket of what did the government know at that point? [00:29:22] Speaker 03: It's not fruit. [00:29:23] Speaker 03: I'm trying to figure out whether the Walmart transactions are fairly included and I don't see how they would be. [00:29:29] Speaker 03: Can you help me with that? [00:29:31] Speaker 00: I can help you by pointing you to Judge Mossman's, the transcript of Judge Mossman's hearing at ER 15 through 23, where he has a conversation with the US attorney about what is independent source. [00:29:44] Speaker 00: And when he lists out those items that are entirely independent, [00:29:50] Speaker 00: from the first CI. [00:29:53] Speaker 00: He does list the Walmart transfers among those as not being dedicated or being derived from the geolocation. [00:30:02] Speaker 03: I know that. [00:30:05] Speaker 03: I've got that. [00:30:06] Speaker 03: I've read that. [00:30:06] Speaker 03: I'm trying to figure out why he reached that conclusion. [00:30:08] Speaker 03: I'm sure you know the record very, very well. [00:30:12] Speaker 03: What record evidence is there to support that conclusion that the Walmart transactions were independent and not fruits? [00:30:18] Speaker 00: Well, Your Honor, I'm not quite sure how to answer that question. [00:30:23] Speaker 00: I think, in part, I'm trying to prove a negative. [00:30:26] Speaker 00: What I can tell you is that the investigation into the financial transactions came about because of a focus on Mr. Hunt, not because of the geolocation. [00:30:38] Speaker 00: Where he was at any given time didn't have that. [00:30:43] Speaker 03: Mr. Hunt, to any of this until, right, not from the first [00:30:48] Speaker 03: a CI, that just told you about a phone number. [00:30:51] Speaker 03: And that was tracking that phone number, I think, that led you pretty clearly to Mr. Hunt. [00:30:55] Speaker 03: That's opposing counsel's point, right? [00:30:59] Speaker 03: Yes. [00:30:59] Speaker 03: From counsel's point. [00:31:00] Speaker 03: And of course, we take very seriously if something is omitted intentionally or otherwise from that first warrant, and by the way, from the second warrant. [00:31:08] Speaker 03: But I do think that the government has this second CI that I don't see any reason to question the government's representation that that CI was independent from the first CI. [00:31:18] Speaker 03: It just doesn't get me, and I've indicated in my earlier questions, itemize the evidence that I think was fairly considered, that it is independent, but I struggled to see how the Walmart evidence was. [00:31:30] Speaker 00: Your Honor, I'm not sure that I can satisfy you here at oral argument, but what I would be happy to do is file essentially a 28J that provides you with record citations if I can get you a more concrete hook. [00:31:42] Speaker ?: Thank you. [00:31:43] Speaker 04: Can you address one of the sentencing issues, in particular, the weather ORS 475.92 is a predicate offense for serious drug offense, in particular, given our decision in Sandoval? [00:31:57] Speaker 00: Yes. [00:31:58] Speaker 00: So, Your Honor, this court is not bound by Sandoval when looking at whether Oregon DCS qualifies under the ACC. [00:32:06] Speaker 00: So, Sandoval dealt with this, essentially the Controlled Substances Act. [00:32:10] Speaker 04: It got there through, you know... But those two statutes kind of relate to each other, right? [00:32:16] Speaker 00: They don't. [00:32:17] Speaker 00: So, under Sandoval, what we were looking at is whether [00:32:22] Speaker 00: Oregon DCS would be a categorical element to element match with the Controlled Substances Act and the drug offenses that are tied in that. [00:32:33] Speaker 00: And what the court looked at was the text of the Controlled Substances Act. [00:32:37] Speaker 00: And it looked and said that when defining delivery, the CSA includes conspiracy and attempt as in co-it forms of delivery. [00:32:47] Speaker 00: And because it does not explicitly include solicitation, the inchoate crime of solicitation, the CSA, because it doesn't include it, must exclude it because it includes other inchoate crimes and does not include that one. [00:33:02] Speaker 00: And so when looking under an elements test, the CSA and Oregon's delivery statute are not an element-to-element match. [00:33:12] Speaker 00: What we're looking at here under the ACC is a much broader test that Shuler clarified for us. [00:33:19] Speaker 00: We're not looking at a comparison to the elements of any particular federal crime. [00:33:24] Speaker 00: The question that the court is asking is, when we look at the elements of Oregon's crime, Oregon DCS, does that crime necessarily entail drug distribution conduct? [00:33:37] Speaker 03: Well, I think we're asking, wouldn't you agree, Council, we're asking whether it necessarily required manufacturing, distributing, or processing with the intent to distribute? [00:33:46] Speaker 00: Yes, so what we're asking is whether it necessarily involves manufacturing or distribution conduct. [00:33:53] Speaker 00: What Shuler said explicitly in looking at the ACCA was, does it include the type of conduct that is included in manufacturing, distributing, or possessing with the intent to do either of those two actions? [00:34:08] Speaker 00: So the question is, does this necessarily entail distribution conduct? [00:34:14] Speaker 00: And that requires the court [00:34:16] Speaker 03: Last thing you said is what I would push back on. [00:34:18] Speaker 00: Sure. [00:34:19] Speaker 03: I think it's a categorical analysis, I'm sure. [00:34:22] Speaker 03: It's a categorical analysis. [00:34:24] Speaker 00: Absolutely, it's a categorical analysis. [00:34:26] Speaker 03: And we're just not looking at a generic offense. [00:34:29] Speaker 03: And the Supreme Court tells us we're looking involved with what that means necessarily includes. [00:34:35] Speaker 03: So that's why I get to the statute, the organ statute, and asking whether we have to ask ourselves whether that statute necessarily includes manufacturing, distributing, or possessing with intent to distribute. [00:34:46] Speaker 03: And you're I think right there at that Interception Council, you're going broader and look in and that may be over, because up until then I think we're on the same page. [00:34:56] Speaker 03: But at that point, you're looking more broadly at whether the statute included conduct. [00:35:02] Speaker 03: It still has to be necessarily required, right? [00:35:05] Speaker 00: It has to necessarily involve, for our purposes, not manufacturing. [00:35:09] Speaker 00: That's not what's involved here. [00:35:11] Speaker 00: The question is whether it necessarily involves distribution conduct. [00:35:16] Speaker 00: So conduct involved in distribution. [00:35:18] Speaker 00: And that's what Shuler says specifically, is we're looking not at specific names, but distribution includes states call it different things, to sell, to broker, to deliver, to do a whole bunch. [00:35:30] Speaker 00: It gives a whole bunch of different ways that states [00:35:34] Speaker 00: encompass this. [00:35:36] Speaker 00: And then we turn to this court's decisions in Ahumada and in McElmurry. [00:35:45] Speaker 00: about how this court defines distribution conduct. [00:35:49] Speaker 00: And what this court has said in both of those cases is that we define distribution conduct to include the different stages of distribution, from the brokerage all the way to the completed delivery. [00:36:00] Speaker 00: And that's also what the court in Penn, in the 11th Circuit, it's what the court in Prentice, in the 5th Circuit also said, is when we're looking at- How do we unsee that Oregon allows this particular conviction, this particular statute for mere solicitation? [00:36:15] Speaker 00: So solicitation, we can call it solicitation. [00:36:18] Speaker 00: When they were looking at that, they're talking in part about the inchoate crime. [00:36:23] Speaker 00: What they were really looking at was brokerage conduct, brokering of a drug deal, setting it up, deciding how much, how it was going to be delivered, who was going to deliver it, who was going to pay, and knowing that the defendant was going to benefit from that deal. [00:36:39] Speaker 00: And so that is very similar. [00:36:42] Speaker 01: Couldn't solicitation be a lot less than that, just saying you want to buy some drugs? [00:36:47] Speaker 00: So what we're looking at, though, is what is the scope of Oregon's drug delivery law? [00:36:54] Speaker 00: And our lowest common denominator in that is not solicitation writ large. [00:36:59] Speaker 00: It's the conduct that happened in the self case. [00:37:03] Speaker 00: That is where we look at what Oregon decides is enough. [00:37:09] Speaker 00: And there, what they were asking, not is this solicitation as meets the elements of the unchoic crime solicitation. [00:37:15] Speaker 00: I'm sorry, I'm over time. [00:37:17] Speaker 00: Do you mind if I finish? [00:37:18] Speaker 00: Oh, sure. [00:37:19] Speaker 00: Thank you. [00:37:19] Speaker 00: What they were asking was, was this conduct enough to constitute a substantial step and qualify as an attempted delivery? [00:37:27] Speaker 00: That's what they were asking. [00:37:29] Speaker 00: And so that conduct, some other sale, offer for sale, might not have been enough. [00:37:35] Speaker 00: But what they said there was where the defendant took all of these steps to broker a drug deal, that counts as delivery under Oregon law, and that counts as drug distribution under the other circuits who have looked at this. [00:37:47] Speaker 01: I just, I want to just follow up on this question specific to this case because this is relevant to the sentencing guidelines and the calculation of the sentencing guidelines. [00:37:57] Speaker 01: My reading of the transcript from the sentencing hearing was very clear that the judge calculated both under a criminal history category six and a criminal history category two, rejected the guidelines at the criminal hearing [00:38:10] Speaker 01: category 6, which would have been as a result of applying the ACCA, said that was too high, and then actually sentenced the defendant to a midpoint in the guidelines under a criminal career history category 2. [00:38:27] Speaker 01: So where's the harm? [00:38:29] Speaker 01: Even if it was error to consider it and say it was applicable, where's the harm? [00:38:34] Speaker 00: There is none. [00:38:35] Speaker 00: And you're right, Your Honor. [00:38:36] Speaker 00: That's at ER 124. [00:38:37] Speaker 00: It's very clear that the court [00:38:39] Speaker 00: apply to criminal history category two. [00:38:41] Speaker 00: The reason that this is here in this posture is that the question of DCS and whether it qualifies as an ACC has been in the thorn in the side of the district courts in Oregon for quite some time from Sandoval, and this was the way to get it in front of the Ninth Circuit. [00:38:55] Speaker 01: OK, and I know that you're over time, but if the rest of the panel indulge me, I'm very curious about the method for the drug quantity approximation here. [00:39:05] Speaker 01: You have 92 seized pills. [00:39:07] Speaker 01: They were not consistent in the amount of analog within them. [00:39:13] Speaker 01: The court was required to make an approximation that erred on the side of caution. [00:39:20] Speaker 01: You are one pill over. [00:39:22] Speaker 01: In this quantity that was assumed to get to a 300 gram to a 1 kilogram guideline range starting at a 32, instead of a 100, it was 300.09 kilograms of fentanyl analog based on the math that the court applied to the number that was presented by the government. [00:39:43] Speaker 01: Given that these ranges were largely hypothetical, is that really erring in the sight of caution to come in at one pill, hypothetical pill, of 2,766 unceased pills to say we're going to go up to a level 32? [00:40:02] Speaker 00: So Your Honor, I'm not certain about the one pill. [00:40:06] Speaker 00: I don't necessarily know. [00:40:07] Speaker 00: Oh, I did the math, OK? [00:40:09] Speaker 00: OK. [00:40:09] Speaker 01: If you take the guy, you started at 0.105 grams as the lowest amount, which again was a guess because there was testimony that some of these pills might have just been fake with nothing, and then estimated out an unceased pill quantity of 2,766 pills. [00:40:30] Speaker 01: and that comes out at three hundred point zero nine grams one less pill would have had you at two hundred ninety nine point nine whatever but below the three hundred is that [00:40:42] Speaker 01: a caution on the side of being as conservative when you're estimating to just creep over the line. [00:40:49] Speaker 00: So I think that the district court did the math differently. [00:40:53] Speaker 00: Certainly, we had 92 seized pills. [00:40:55] Speaker 00: Only four of those were tested. [00:40:57] Speaker 00: Some of them were carfentanil, the elephant tranquilizer. [00:41:00] Speaker 00: Some of them were furanil, fentanyl. [00:41:03] Speaker 00: What we had was 92 seized pills. [00:41:08] Speaker 00: But we also had testimony from Riley Jones about 2,000 more pills. [00:41:14] Speaker 00: We had testimony from PR Supsang, about 200 more pills. [00:41:18] Speaker 00: We had specific testimony from AH, about 120 additional pills. [00:41:25] Speaker 00: And that took the court to 2,412 pills of which there was direct evidence in the record at trial, leaving 400 pills by the conservative estimate that was unaccounted for. [00:41:40] Speaker 00: And so what the court did then was looked at the evidence that there were pills that had been flushed at the Decom residence. [00:41:50] Speaker 00: So she relied on that, the fact that the defendant hid in the bathroom for about 12 minutes when the search warrant was being executed and there was residue on the rim, there was residue in a bag, there were pills found around the toilet. [00:42:04] Speaker 00: She relied on additional testimony from PR Supsang at SER 256 that she had seen the defendant with a bag of hundreds of pills. [00:42:14] Speaker 01: Again, these are very broad estimates, hundreds. [00:42:18] Speaker 01: You don't know how many were flushed, and the difference here in the guideline range really turns on one pill. [00:42:24] Speaker 00: it's true that she did an estimate. [00:42:26] Speaker 00: And so the question becomes whether the testimony that she relied on, and it's not, at this point we're talking about testimony regarding, there's at least one other witness who talked about hundreds of pills, but then we also had these text messages [00:42:43] Speaker 00: about transactions and there we have 200, 100, 100, I only have 89 even though you said you sold me 100. [00:42:52] Speaker 00: And so all of that combined is how the district court [00:42:57] Speaker 00: looked to see that there was at least another 400 pills that hadn't been accounted for. [00:43:01] Speaker 00: And that's in addition to the unexplained wealth, which the court did put a thumb on the scale for that, saying she couldn't attribute that directly to drug trafficking. [00:43:10] Speaker 00: The defendant was also involved in other illegal activities. [00:43:13] Speaker 00: But that that supported, to Your Honor's point about whether this was conservative or not, she used that unexplained wealth to say that if we're erring not on the side of going down, but in fact going up, that unexplained wealth [00:43:26] Speaker 00: Helps to support that. [00:43:28] Speaker 00: All right. [00:43:28] Speaker 00: Thank you. [00:43:28] Speaker 00: You're welcome. [00:43:30] Speaker 04: Thank you. [00:43:31] Speaker 04: Judge Kristen. [00:43:32] Speaker 00: Do you have any more questions? [00:43:34] Speaker 00: Thank you. [00:43:34] Speaker 00: Thank you [00:43:41] Speaker 05: Just very briefly, three points, one on the abandonment, one on the Armed Career Criminal Act issue, and then one about the drug quantity finding. [00:43:49] Speaker 05: So this doesn't come to the forefront in the briefing, but I think it's really relevant to the court's consideration of the abandonment issue. [00:43:56] Speaker 05: The finding of abandonment here was based on two primary facts that repeat itself millions of times a year. [00:44:02] Speaker 05: somebody, in this case police officers, came across a phone with no known owner and there was physical separation between the owner and the device. [00:44:09] Speaker 05: It is really troubling if moving forward any individual lacks the ability to challenge a search of that device and the use of their digital data in perpetuity. [00:44:20] Speaker 05: That includes the type of conduct that the court had before it in the Olson case. [00:44:25] Speaker 05: That is really troubling conduct. [00:44:27] Speaker 05: We're not asking [00:44:28] Speaker 05: based on the abandonment doctrine, not applying that argument, that every single instance of a phone being seized without a warrant is per se unconstitutional, suppressed. [00:44:39] Speaker 05: We're just saying people retain their reasonable expectation of privacy in their data, which is unbelievably intimate to themselves, and just as a quantity matter, unlike anything you can see in the physical world. [00:44:50] Speaker 05: To say nothing about the use of the cloud to be able to actually retain your data and abandon the physical device, but not the data itself. [00:44:57] Speaker 05: On the ACCA issue the government in its briefing and again an argument has said the test is distribution and conduct. [00:45:07] Speaker 05: That is a broader test and that is not what Shuler says. [00:45:10] Speaker 05: The test under Shuler is necessarily entails and then the statute says distribution. [00:45:15] Speaker 05: That is a narrower test than the government has represented repeatedly. [00:45:19] Speaker 05: And the problem ultimately is there's no limiting principle to the government's argument. [00:45:23] Speaker 05: The statute, the ACCA, says that only serious drug offenses qualify under the Armed Criminal Act. [00:45:31] Speaker 05: But under their theory, every type of conduct, no matter how tenuous to the actual act of distribution, would get swept in. [00:45:37] Speaker 05: So the court's case, we cite in the brief in Davis, an unpublished case, is one where you have a complicit liability under the Idaho statute, but the substantive crime actually has to be committed. [00:45:49] Speaker 05: So that would be an example of there actually is [00:45:52] Speaker 05: a substantive distribution taking place. [00:45:55] Speaker 05: But the individual involved with it isn't the one actually doing it. [00:45:59] Speaker 05: So our position is not that... Anyways, the government's position is just overstated. [00:46:05] Speaker 05: And very briefly, the drug quantity findings... I see I'm briefly over here. [00:46:10] Speaker 05: Can I just briefly conclude? [00:46:11] Speaker 05: Thank you. [00:46:11] Speaker 05: The drug quantity findings by the district court were based on testimony that spanned all throughout 2017 into 2018. [00:46:20] Speaker 05: The charged period was November of 2017 to I believe it was October of 2018. [00:46:25] Speaker 05: So even the estimates of the number of pills was not a conservative estimate because the people testifying as to the number of pills they distributed could not say when in that very broad period the pills were actually distributed. [00:46:38] Speaker 05: I have nothing else if the court has any further questions. [00:46:41] Speaker 04: Great. [00:46:42] Speaker 04: Thank you. [00:46:42] Speaker 04: Thank you both for very helpful argument. [00:46:45] Speaker 04: We are adjourned for the day and the case is submitted. [00:46:49] Speaker 01: All rise.