[00:00:13] Speaker 03:
Good morning, your honors, and may it please the court.

[00:00:15] Speaker 03:
Holt Ortiz Alden on behalf of Mr. Stephen Reed.

[00:00:18] Speaker 03:
I would like to reserve two minutes, and I will watch my time.

[00:00:21] Speaker 03:
To pick up where Mr. Henderson left off, Mr. Reed's prior convictions under California law are not career offender predicates for the same reasons, because California's definition of methamphetamine analogs is overbroad.

[00:00:33] Speaker 03:
I'd like to, I'm happy to answer any of the court's questions as to all six of these disputed issues, but I'd like to start with divisibility.

[00:00:41] Speaker 03:
Judge Sung, I agree exactly with your interpretation of Davis.

[00:00:45] Speaker 03:
And Judge Bennett, I think that Mathis and Becker combined actually resolved this question very succinctly.

[00:00:52] Speaker 03:
Mathis says that if something of fact

[00:00:55] Speaker 03:
that can be proven is not a part of the charging document and need not be charged, then that is a means, not an element.

[00:01:03] Speaker 03:
Becker says that state prosecutors do not have to charge an analog theory for a controlled substance offense.

[00:01:10] Speaker 03:
And I think that in and of itself resolves the question.

[00:01:13] Speaker 01:
I would also note that... But there could be a difference between whether they have to prove an analog theory or whether they have to prove

[00:01:23] Speaker 01:
the particular substance, ecstasy, as opposed to either ecstasy or methamphetamine.

[00:01:32] Speaker 03:
I take Your Honor's question to mean, can the state prosecutor proceed only on the analog theory?

[00:01:40] Speaker 01:
No.

[00:01:41] Speaker 01:
I'm asking whether the state prosecutor could proceed on this by alleging this is either ecstasy or methamphetamine, and you don't have to decide which.

[00:01:52] Speaker 03:
Yes, and I think that's exactly what happened in Becker.

[00:01:54] Speaker 01:
Is that what Becker says?

[00:01:55] Speaker 01:
It says you don't have to prove it's an analog, but does it say you don't have to prove it's ecstasy?

[00:02:02] Speaker 00:
In Davis, the Supreme Court said that in Becker, the Court of Appeals held that the jury could have reasonably concluded that MDMA, which is what they were charged with having, either contained meth

[00:02:18] Speaker 00:
Was an analog of that drug so it seems to me that the California Supreme Court is saying when you have a non-listed substance the prosecution can Argue try to prove to the jury either that it is Actually the listed substance or an analog of it and a jury does not have to agree on Which one yes, okay?

[00:02:44] Speaker 03:
I think that's exactly right.

[00:02:45] Speaker 03:
I would add two things.

[00:02:48] Speaker 03:
First, the name of the substance, whether, for example, it's ecstasy or MDMA in the charging document, or some other analog, doesn't matter.

[00:03:00] Speaker 03:
It doesn't have legal meaning under the statute.

[00:03:04] Speaker 03:
And so when

[00:03:06] Speaker 03:
A state prosecutor is presenting evidence as to whether this unlisted substance either is a controlled substance or an analog.

[00:03:15] Speaker 03:
They don't actually have to present evidence about their chemical structure or the name of the substance.

[00:03:21] Speaker 03:
They could call it whatever they want.

[00:03:23] Speaker 03:
Second, the reason we know that is because exactly what Judge Slunk said about Davis, and also because the jury instructions require listing the name of the listed substance that either the charged substance is or is an analog of.

[00:03:41] Speaker 03:
And so I read the jury instructions exactly the opposite as to the government.

[00:03:45] Speaker 03:
I think that CALCRM 2302, as part of element number five, requires identifying a listed substance.

[00:03:55] Speaker 03:
And so when it says N5A, the controlled substance was

[00:04:00] Speaker 03:
In Becker, that would have been methamphetamine.

[00:04:03] Speaker 03:
In 5B, the controlled substance was an analog of, again, methamphetamine would have been listed.

[00:04:09] Speaker 03:
So there must be a listed substance that is tied in.

[00:04:13] Speaker 02:
Council, do you agree that if we were to decide that the modified categorical approach were applicable, and I understand your argument that it isn't, that the Shepard documents here are sufficient?

[00:04:28] Speaker 03:
As to Mr. Reed's case, the Shepard documents identify methamphetamine.

[00:04:33] Speaker 03:
And so I would argue because the modified categorical approach does not apply, that doesn't mean anything because we don't know what the legal consequence of that was.

[00:04:43] Speaker 02:
No, I understand your argument that the modified categorical approach doesn't apply.

[00:04:48] Speaker 01:
But what you're also saying is that if it's indivisible, then specifying it as methamphetamine doesn't mean that it's not analog.

[00:04:56] Speaker 03:
Exactly.

[00:04:58] Speaker 03:
I can also turn to the federal analog definition 802-32.

[00:05:04] Speaker 01:
So then it wouldn't be adequate.

[00:05:07] Speaker 03:
I'm sorry?

[00:05:08] Speaker 01:
So then in that sense the document would not be adequate to demonstrate whether he was convicted of methamphetamine or an analog.

[00:05:15] Speaker 03:
Yes, Your Honor, I think that that question goes to divisibility.

[00:05:18] Speaker 01:
No, but the way you're now saying it would also go to whether the modified categorical approach was met if it applied, because the document would not tell you whether it was methamphetamine or an analog of methamphetamine.

[00:05:31] Speaker 03:
Yes.

[00:05:32] Speaker 03:
My understanding of that is that that is the same issue as whether they are separate elements or separate means.

[00:05:40] Speaker 00:
If we agree with you that it's divisible, then the charging document by definition doesn't prove whether it's the actual drug or an analog of it.

[00:05:52] Speaker 00:
But if we agree, but if we disagreed with you and said that it

[00:05:57] Speaker 00:
Divisible under California law then the charging document would have to specify one or the other so your Your argument rises and falls with the divisibility legal theory because once If we get to the charging document Then we've already agreed that it is divisible in which case it would be dispositive exactly exactly

[00:06:26] Speaker 00:
I'm not sure that's right, but go ahead.

[00:06:29] Speaker 03:
Well, Your Honor, I think my understanding is the same as Judge Sung's because the charge, we are assuming that the charging document is required to establish an element.

[00:06:43] Speaker 03:
And that's the same thing that Becker addressed with respect to MDMA.

[00:06:48] Speaker 03:
And Becker said that whether the substance is an analog does not have to be charged.

[00:06:53] Speaker 03:
And I would relate that back to

[00:06:55] Speaker 03:
A case like Alfred versus Garland in which this court said that for example, accomplice liability never needs to be charged in a charging document because it's subsumed within the substantive offense.

[00:07:10] Speaker 00:
Because in Becker the argument was that they didn't have notice of whether the government was charging them with actual possession of actual meth or an analog of meth and the California Court of Appeals said it doesn't matter because

[00:07:24] Speaker 00:
As long as they as long as you are a notice that the government's theory was that?

[00:07:28] Speaker 00:
Xc equals meth or an analog of it and the jury didn't have to decide whether it was meth or an analog It was good enough.

[00:07:37] Speaker 00:
That's my understanding.

[00:07:38] Speaker 03:
Yes, that's exactly right and the the government has conceded that reading of becker at page 47 of their answering brief they said that the jury need not agree in becker as to whether it was an analog or it was methamphetamine itself and

[00:07:53] Speaker 03:
And I think that resolves the divisibility question.

[00:07:58] Speaker 03:
Turning back to the federal analog definition 802-32A,

[00:08:05] Speaker 03:
I agree with what Mr. Henderson said about the statute.

[00:08:08] Speaker 03:
And I think what's also important is to note the content of each of the subsections.

[00:08:13] Speaker 03:
And so looking at subsection two and subsection three, they're both addressing pharmacological effect.

[00:08:20] Speaker 03:
And I think that is important in recognizing that not only are subsection two and subsection three written in parallel, both beginning with the word which, but they also address the same content.

[00:08:33] Speaker 03:
The government's argument in the briefs, at least, fixated on the word or.

[00:08:39] Speaker 03:
But that or only connects subsection two and subsection three.

[00:08:42] Speaker 03:
And it's not at all clear in the way that the statute is written and how other subsections are written in 802 that that or would also apply to subsection one.

[00:08:51] Speaker 03:
And as Judge Berzon noted, the Hodge case does a wonderful job just laying out both the textual arguments as well as the purpose and legislative history, none of which presents any evidence that Congress was trying to cover things like candle wax and flour.

[00:09:07] Speaker 01:
Well, legislative history is a little mystifying because apparently this was written originally much more coherently.

[00:09:14] Speaker 01:
And at some point, they added the third category and didn't revise the

[00:09:21] Speaker 01:
punctuation and so on and so it ended up

[00:09:25] Speaker 03:
Right, and I think that Hodge explains that the Senate version and the House version, neither of those would have covered something like wax and flour, and the final version seems to have been the two sort of pushed together without being really clear as to punctuation, what that meant.

[00:09:42] Speaker 03:
But again, the Third Circuit noted that neither the Senate version nor the House version was disjunctive in the sense that the government is reading the statute now.

[00:09:52] Speaker 00:
Council, I'll ask Judge Bennett to give you an extra minute, but I wanted to give you a chance to address the obstruction of justice issue.

[00:10:05] Speaker 00:
What is your best argument that if we agreed with you that the hearsay was not sufficiently reliable, that there isn't enough evidence to apply the enhancement?

[00:10:19] Speaker 03:
So I have two points, Your Honor, thank you.

[00:10:21] Speaker 03:
The first is the district court never made a finding as to Mr. Reed's intent.

[00:10:26] Speaker 03:
And so I think under this court's case law, the court could remand on that issue for the district court.

[00:10:31] Speaker 00:
You didn't really press that specific version of your argument, though.

[00:10:36] Speaker 03:
No.

[00:10:36] Speaker 03:
I also think, number two, that the evidence was insufficient because, again, the standard is

[00:10:45] Speaker 03:
So Mr. Reid had to have intended to obstruct justice and here threaten the confidential informant.

[00:10:52] Speaker 03:
There is no evidence that Mr. Reid asked anyone to approach or speak with the informant.

[00:10:58] Speaker 03:
There is no evidence connecting him to this banner that was put up months after the original statements in October.

[00:11:07] Speaker 02:
What is that, the snitch day banner?

[00:11:09] Speaker 03:
that was your honor and and not only is there no evidence connecting to him to that banner which was put up months later it was actually it it didn't

[00:11:22] Speaker 03:
Let me back that up.

[00:11:23] Speaker 03:
There isn't any evidence connecting him to that.

[00:11:26] Speaker 03:
The information that he did pass was things like, I think that this person is this age and may have worked at this place previously.

[00:11:35] Speaker 03:
There is certainly the defense argued below that that was about warning his friends in the community not to sell or conduct transactions with the informant.

[00:11:48] Speaker 03:
Because we're talking about obstruction of justice with a specific mens rea, none of those facts are sufficient for the government to establish its intent by preponderance of the evidence.

[00:12:00] Speaker 02:
All right.

[00:12:00] Speaker 02:
We'll give you two minutes for rebuttal.

[00:12:02] Speaker 02:
Thank you.

[00:12:13] Speaker 04:
Good morning again and may it please the court.

[00:12:15] Speaker 04:
Rajesh Srinivasan for the United States.

[00:12:18] Speaker 04:
Judge Sung, I want to start with Becker.

[00:12:23] Speaker 04:
I think what the government, what we did not concede in Becker that there are two alternative means.

[00:12:30] Speaker 04:
What we were saying is that the charging documents in California require identification of a substance.

[00:12:36] Speaker 04:
In that case, the prosecutor decided to identify the substance as ecstasy.

[00:12:41] Speaker 04:
They could have also identified it as methamphetamine or a methamphetamine analog.

[00:12:47] Speaker 04:
And then all the Becker court need to decide was a sufficiency issue and a due process issue.

[00:12:54] Speaker 04:
And of course, it's sufficient for due process to know that the drug you're charged with is ecstasy, because then you can do all the research you want about whether it meets the definition of a controlled substance under California law.

[00:13:06] Speaker 04:
It does not mean, however, that those two things are different means.

[00:13:10] Speaker 04:
And it might be true that

[00:13:11] Speaker 04:
you could have a case where a defendant was charged with some drug under California law, and it's unclear from the record whether the proof was of a controlled substance or a controlled substance analog.

[00:13:26] Speaker 04:
And in that case, this court's exception, as explained in Gamboa, Rodriguez-Gamboa, to the categorical approach would apply.

[00:13:34] Speaker 04:
And what Rodriguez-Gamboa said is, even if something is a categorical match, if you can show that in your case,

[00:13:41] Speaker 04:
there was a deviation from the generic definition, you can escape from the categorical approach.

[00:13:48] Speaker 00:
But how do you deal with that?

[00:13:49] Speaker 00:
I mean, the Court of Appeals literally said the jury could decide either that ecstasy is either methamphetamine or an analog of it.

[00:14:03] Speaker 00:
And the California Supreme Court expressly approved that.

[00:14:07] Speaker 00:
When the prosecution chooses a substance, charges them with possession of a substance that isn't listed, then the government does have to prove that it is either the controlled substance or an analog of it, but the jury does not have to agree on which one.

[00:14:27] Speaker 00:
That to me seems the definition of alternate means of proving the element.

[00:14:35] Speaker 00:
There's, yes, I understand there could be a different case in which the prosecution says what we have is clearly meth, and all I have to do is prove that it is meth.

[00:14:46] Speaker 00:
But when they have instead chosen, which seems perfectly okay in California to say, I'm going to choose to charge them with possessing this other thing, ecstasy, they do have to prove

[00:15:04] Speaker 00:
that it meets one of the controlled substances or an analog of it, and the jury does not have to decide which one.

[00:15:14] Speaker 00:
I mean, I don't know how else to read Becker and Davis other than saying these are alternate means of proving the element required under these crimes.

[00:15:25] Speaker 04:
I'll propose one reading that resolves these concerns.

[00:15:28] Speaker 04:
And that is imagine a case, this is an absurd case, but imagine a case where

[00:15:34] Speaker 04:
A defendant is charged with a substance, and it's unclear whether it's cocaine or methamphetamine.

[00:15:41] Speaker 04:
Those two things under Section 11378 are certainly alternate elements.

[00:15:46] Speaker 04:
That's what this court has held.

[00:15:48] Speaker 04:
But proof of either would be sufficient to uphold a conviction under 11378.

[00:15:52] Speaker 01:
But the jury would have to agree on which one.

[00:15:54] Speaker 04:
That's correct.

[00:15:55] Speaker 00:
But under your theory, Becker should have come out the other way because the jury should have had to agree and specifically find, is ecstasy actually meth or is ecstasy an analog of meth?

[00:16:11] Speaker 00:
And we should throw out that conviction because the jury didn't agree on which one it was.

[00:16:17] Speaker 04:
I read Becker as saying that under either theory there was sufficient evidence and therefore we can uphold a conviction.

[00:16:24] Speaker 00:
So where in Becker does it say that the jury actually had to find, make a finding for a conviction that ecstasy is meth or an analog and there had to be unanimity on that issue?

[00:16:39] Speaker 04:
I don't think that was that issue in Becker so I agree it does not say that.

[00:16:43] Speaker 00:
Any case then.

[00:16:45] Speaker 00:
I there isn't an explicit case that says that results if they don't if they're if they're if the government's theory if they're charging you with possession and Unlisted drug which clearly can happen because we have all these ecstasy cases right where ecstasy or MDMA is not one of the listed controlled substances and the government is sometimes putting up an expert and saying I think ecstasy is essentially

[00:17:13] Speaker 00:
a methamphetamine or an analog of it.

[00:17:15] Speaker 00:
Sometimes they're saying it is meth.

[00:17:17] Speaker 00:
Sometimes they're saying it's an analog or one or the other.

[00:17:20] Speaker 00:
But there's clearly, and then we have a case, we have Davis where the Supreme Court says government messed up.

[00:17:27] Speaker 00:
They didn't put on an expert to show what ecstasy is.

[00:17:33] Speaker 00:
Conviction vacated.

[00:17:35] Speaker 00:
They're for insufficient evidence.

[00:17:38] Speaker 00:
So clearly, it is possible to charge someone with a substance

[00:17:43] Speaker 00:
that is not listed, in those cases the government has to prove it falls in one of the categories and the court's saying you can choose, you can prove it is the same thing or you can prove it's an analog of the same thing.

[00:17:55] Speaker 00:
Is there any case where it says because you didn't pick one, you didn't pick it is equal actually the thing or an analog, you didn't prove an element of the crime?

[00:18:08] Speaker 04:
I'm not aware of a case, but I think you need to, for this court to resolve this issue, it's important to look at the jury instruction, which the Supreme Court has instructed courts to do in cases of ambiguity.

[00:18:20] Speaker 04:
And the jury instruction 2302 does require identification of something as a controlled substance or an analog.

[00:18:29] Speaker 04:
And it's important to look at the jury.

[00:18:31] Speaker 01:
Well, your opponent thinks otherwise.

[00:18:34] Speaker 01:
He reads the jury instruction as,

[00:18:37] Speaker 01:
allowing the analog status to be alleged at both levels.

[00:18:47] Speaker 04:
That's not the best reading of the jury instruction, because if that were the case, then there would be no need in the jury instruction to identify whether something was an analog or a controlled substance.

[00:18:57] Speaker 04:
It could be a combined element where you can prove it by either means.

[00:19:03] Speaker 01:
The fact that... Well, in any event, it's not particularly clear.

[00:19:07] Speaker 04:
I think it's clear that the prosecution must identify which they're going with, an analog or controlled substance.

[00:19:16] Speaker 04:
And if that were not the case, then there would be no need to put that language in the jury instruction.

[00:19:24] Speaker 04:
The charging documents also give some view into this.

[00:19:28] Speaker 00:
Your argument is that California prosecutors, state prosecutors now, every time they charge one of these cases, there's a new drug

[00:19:37] Speaker 00:
They're not sure.

[00:19:37] Speaker 00:
They have to say in the charging document and in the jury instructions, our expert proved that it is actually the same thing as, let's say, methamphetamine.

[00:19:51] Speaker 00:
Or they have to prove it's an analog.

[00:19:54] Speaker 00:
And if they don't get agreement on one or the other, they will lose.

[00:20:00] Speaker 04:
I think that's correct, and you could do that with a special verdict form.

[00:20:04] Speaker 00:
So they will no longer have the option to just put an expert up that says it could be the same thing, it could be an analog of it, doesn't matter as long as it's one or the other.

[00:20:14] Speaker 00:
They don't have that option anymore.

[00:20:16] Speaker 04:
That's the way we read the statute.

[00:20:18] Speaker 04:
I do want to briefly address, unless the court has other questions about this, the obstruction of justice finding.

[00:20:27] Speaker 04:
This court reviews that for clear error.

[00:20:29] Speaker 04:
And Judge Sung, as your question pointed out, there is plenty of evidence aside from the brother's statement showing that Mr. Reed obstructed justice.

[00:20:43] Speaker 04:
PSR page 253 shares a lot of disinformation.

[00:20:48] Speaker 04:
He shared information via email about the confidential informant and their name, what they look like, where they worked in Ventura, and then subsequently, as Judge Madden mentioned, there was a happy snitch day sign.

[00:21:01] Speaker 00:
So is there any evidence connecting the defendant to that sign?

[00:21:09] Speaker 00:
Only the inference that the defendant shared the place of work would be the effect of it Right I mean if someone got that information and they decided on their own to hang the banner.

[00:21:21] Speaker 00:
You don't have anything saying he Directed someone to do it.

[00:21:26] Speaker 02:
You don't have any evidence that the people who did it are close associates of him anything like that Not that I'm aware of but that's not required when we're looking at 253 of the PSR

[00:21:39] Speaker 02:
It said he shared information via email about the CI, including his name, what he looks like, where he works to multiple people.

[00:21:47] Speaker 02:
And he told someone to tell everyone they knew about the CI.

[00:21:53] Speaker 02:
And at the same time as the messages, the CI, they were harassed.

[00:22:01] Speaker 04:
And I believe all those facts, Judge Bennett, show that the obstruction of justice.

[00:22:06] Speaker 04:
And that's aside from the brother.

[00:22:08] Speaker 04:
That's aside from the brother.

[00:22:09] Speaker 04:
That's even aside from the sign.

[00:22:11] Speaker 04:
And I think that's sufficient to uphold the district court's finding.

[00:22:14] Speaker 01:
But there was no finding by the district court of intent, does that matter?

[00:22:19] Speaker 04:
I believe there was a finding that the obstruction of justice enhancement applied.

[00:22:23] Speaker 01:
Right.

[00:22:24] Speaker 01:
There was no finding of willfulness or intent to obstruct justice.

[00:22:29] Speaker 04:
The district court is presumed to understand the guidelines and that there's nothing to rebut that presumption here.

[00:22:38] Speaker 02:
All right.

[00:22:38] Speaker 02:
Thank you, Council.

[00:22:39] Speaker 02:
Thank you.

[00:22:51] Speaker 03:
Your Honours, unless the Court has questions, I'd like to briefly address the intended for human consumption requirement.

[00:22:57] Speaker 03:
Judge Berzon, I think that there are situations where this could be very meaningful as Congress

[00:23:05] Speaker 03:
appears to have required or intended when they amended the federal statute.

[00:23:11] Speaker 03:
One example would be if something like glue is sold at Home Depot, but the same glue is also sold at, for example, a marijuana dispensary, and it's located next to other controlled substances.

[00:23:23] Speaker 03:
Under California law,

[00:23:25] Speaker 03:
a state prosecutor could charge both Home Depot and the marijuana dispensary for manufacturing or selling this analog, this controlled substance, because there is no requirement that it be intended for human consumption.

[00:23:39] Speaker 03:
Under federal law, though,

[00:23:41] Speaker 03:
the federal prosecutors would only be allowed to charge the marijuana dispensary, and they would have to provide evidence.

[00:23:48] Speaker 01:
I wonder whether this isn't just a situation in which you wouldn't need some proof that anybody actually ever did that.

[00:23:56] Speaker 01:
I understand there's this rule that says that if it's facial category, you don't need to demonstrate that there was actually such a charge.

[00:24:07] Speaker 01:
That rule is a little unclear to me because, and I don't know how it applies here, but I would think that there's nothing in California law that says one way or another, whether there is a human consumption requirement, but one might think it was implicit or that it's sort of commonsensical, and that no prosecutor would actually do it.

[00:24:33] Speaker 03:
Two points on that, Your Honor.

[00:24:35] Speaker 03:
One, there's no evidence anywhere in case law or the jury instructions that a state prosecutor would ever be required to prove that.

[00:24:42] Speaker 03:
Whereas in federal court, there are numerous cases addressing prosecutors attempting to prove that.

[00:24:46] Speaker 01:
But is there any evidence that any prosecutor ever actually charged for the clue at Home Depot?

[00:24:51] Speaker 03:
There isn't, Your Honor, and there wouldn't be, because it wouldn't be a defense under California law.

[00:24:55] Speaker 03:
And so there's no reason for a defense counsel to raise that issue with a court.

[00:25:00] Speaker 03:
Oh, our client didn't have the requisite intent, because it's not an element of the California statute.

[00:25:06] Speaker 02:
I'm not sure that answer goes to Judge Verizon's question.

[00:25:10] Speaker 02:
But we thank you.

[00:25:11] Speaker 02:
We thank both counsel for their arguments.

[00:25:14] Speaker 02:
The case just argued is submitted.