[00:00:00] Speaker 04:
And Calmo Matias versus Garland 23-4-119 is submitted.

[00:00:06] Speaker 04:
And Kissner versus Loma Prieta Joint Union Elementary School District 24-1261 is submitted.

[00:00:16] Speaker 04:
With that, we have two cases for argument today.

[00:00:19] Speaker 04:
The first is United States versus Roe 23-1240.

[00:00:25] Speaker 04:
Each side will have 15 minutes.

[00:00:35] Speaker 02:
Got my hand.

[00:00:37] Speaker 02:
No, right.

[00:00:38] Speaker 02:
Good morning.

[00:00:39] Speaker 02:
Bernat Wiefeld on behalf of Zachary Rowe.

[00:00:42] Speaker 02:
I would like to discuss the buyer seller jury instruction argument.

[00:00:47] Speaker 02:
And if I have time, I will discuss the mask issue.

[00:00:51] Speaker 02:
The court in this case refused to give the buyer seller instruction.

[00:00:57] Speaker 02:
And I would submit that that is per se reversible error in this case.

[00:01:04] Speaker 02:
That is because there was clearly not just some evidence, but plenty of evidence to support that instruction.

[00:01:12] Speaker 02:
The defense was certainly plausible, even if debatable.

[00:01:16] Speaker 02:
And there was no other jury instruction that adequately covered this defense.

[00:01:22] Speaker 03:
The court did provide the night circuit instructions

[00:01:29] Speaker 03:
attributed it on?

[00:01:32] Speaker 02:
That is correct, it did.

[00:01:34] Speaker 02:
It's the standard instruction.

[00:01:36] Speaker 02:
But the instruction does not even hint at the fact that a defendant charged with conspiracy, a defendant like Mr. Rowe, who was selling drugs on Facebook, could defend himself against the conspiracy instruction.

[00:01:54] Speaker 02:
And I think it's important, in that Moe case,

[00:01:58] Speaker 02:
There the court held that the instruction, there was certainly plenty of evidence to support the instruction, but the reason that they found it was not necessary in that case was because there was only one crime basically charged in the indictment.

[00:02:17] Speaker 02:
And so the jury would not have been confused.

[00:02:20] Speaker 02:
But in our case, Mr. Rowe was charged with one count of conspiracy, but there were so many alleged co-conspirators, unknown conspirators, unindicted co-conspirators, and 49, excuse me,

[00:02:41] Speaker 02:
overt acts.

[00:02:43] Speaker 02:
And because he was selling all these drugs to people on Facebook, that the main conspirator Caparelli had absolutely nothing to do with.

[00:02:53] Speaker 02:
There's no evidence that she knew anything about that.

[00:02:56] Speaker 02:
The jury is going to be very confused.

[00:02:58] Speaker 02:
So his defense, the jury instruction that was given did not.

[00:03:04] Speaker 03:
Counsel, as I understand it, the buyer seller instruction normally addresses

[00:03:10] Speaker 03:
a situation where we have an addict who is buying and selling drugs in order to support a habit.

[00:03:17] Speaker 03:
Here, the evidence was overwhelming that your client was involved in a large-scale drug distribution operation involving multiple customers.

[00:03:31] Speaker 03:
I'm having a difficult time understanding why the model instruction from the Ninth Circuit didn't adequately cover

[00:03:38] Speaker 03:
his defense that no, I was just, I was just buying this and selling for personal use so that I could support my drug habit.

[00:03:46] Speaker 02:
Well, the court brings up a good point, but that's not the law.

[00:03:50] Speaker 02:
If you go back and you look at, there is the Mendoza case, and that's what the district court focused on, was he was buying drugs to support a habit.

[00:04:01] Speaker 02:
But we have the Loveland case, we have the Ramirez case, and in both of those cases, the defendants were selling multiple quantities of drugs.

[00:04:10] Speaker 02:
In one case, I think it was Ramirez, they're both discussed in my brief,

[00:04:15] Speaker 02:
he was selling to an undercover agent.

[00:04:17] Speaker 02:
But the reason that the court overturned those convictions based on the buyer-seller rule was because although the defendant was selling drugs to multiple people and not just for personal use was because there was no evidence or very weak evidence that the defendant was actually conspiring with the co-defendant.

[00:04:42] Speaker 03:
And if you look at we've got all these text messages, we've got the recorded jail conversation where he says, I don't know how I'm going to convince a jury that I wasn't doing what I was doing.

[00:04:55] Speaker 03:
And then, you know, basically the text messages talking about we got to get our act together here.

[00:05:02] Speaker 03:
We're not doing a very good job of running this drug distribution business.

[00:05:07] Speaker 03:
I'm just having a hard time seeing why.

[00:05:10] Speaker 03:
The model instruction wasn't adequate to support the defense here.

[00:05:15] Speaker 03:
And that's basically what our cases have said.

[00:05:20] Speaker 02:
He was selling drugs to all these people on Facebook and he conceded that, but he wasn't charged with selling drugs to people on Facebook.

[00:05:28] Speaker 02:
He was charged with being in a conspiracy with Debra Caparelli.

[00:05:33] Speaker 02:
And let's look at the evidence.

[00:05:34] Speaker 02:
Okay, Caparelli, when she met with Contreras, the undercover agent, she said, I work solo.

[00:05:40] Speaker 02:
She never mentioned Mr. Rowe's name.

[00:05:43] Speaker 02:
um and uh they have no uh evidence or or you know conversations that show that he was that roe was conspiring with copper rally to uh get drugs from the that's an accurate recitation of the evidence you're ignoring

[00:06:02] Speaker 03:
the Facebook message that she sent to him in which she basically is chiding him for running a sloppy drug distribution business and that we've got to get our act together here because we're losing thousands of dollars because apparently his bookkeeping wasn't very good.

[00:06:21] Speaker 03:
So I don't think you can say there was no evidence to support it that the two of them were conspiring to distribute control substances.

[00:06:29] Speaker 02:
All right, well, I'm not saying that it was no evidence, but that it was clearly those Facebook messages between Caparelli and Roe also show that he was buying drugs from her.

[00:06:42] Speaker 02:
And then he turned around and sold them on Facebook.

[00:06:45] Speaker 02:
So the issue here is not whether there was no evidence to support a conspiracy between the two, but whether or not there was adequate evidence in the record to support the instruction.

[00:06:57] Speaker 02:
And it is up to a jury to decide whether or not his defense would succeed.

[00:07:04] Speaker 02:
It's not whether or not you or I or those us veterans would have bought that defense, but whether the jury would.

[00:07:13] Speaker 02:
The issue is whether it was plausible, even if debatable.

[00:07:17] Speaker 02:
And because we do have the evidence, and the Moe case says it is a highly fact-intensive

[00:07:27] Speaker 02:
issue.

[00:07:28] Speaker 02:
And so therefore, if there was plenty of evidence to support the defense, whether or not, as again, I said, it was plausible, even if debatable, and it should have been given.

[00:07:41] Speaker 04:
Can I ask you whether the theory was that he was the seller and the issue was the jury was going to get confused about his customers or was the theory that he was the buyer from Caparelli?

[00:07:53] Speaker 04:
What was the idea of how this instruction was supposed to be the theory?

[00:07:57] Speaker 02:
I think the theory was that he was both the buyer from her and then the seller to other people that Caparelli had absolutely nothing to do with or any knowledge of.

[00:08:08] Speaker 02:
And so, you know, remember, I'm not arguing here a sufficiency of evidence claim.

[00:08:13] Speaker 02:
I am arguing only whether that Mr. Rowe was denied his Sixth Amendment right to present a complete defense.

[00:08:20] Speaker 02:
And so because there was evidence in the record to support his defense, it was up to the jury to make that decision.

[00:08:28] Speaker 02:
And because he was deprived of that defense,

[00:08:32] Speaker 04:
Do you have a case where this instruction should have been given where the theory was that the person was both the buyer and the seller in the instruction?

[00:08:43] Speaker 04:
I mean, I think usually they're just the buyer, right?

[00:08:47] Speaker 02:
Well, I do not.

[00:08:49] Speaker 02:
Because in the cases that I cited, Loveland, Ramirez, and Mendoza, those are not cases where the instruction was in fact given in those cases.

[00:09:02] Speaker 02:
And so this court reversed on sufficiency.

[00:09:06] Speaker 02:
So the issue is it's very rare that a court under evidence like this will completely deny the instruction.

[00:09:16] Speaker 02:
And that's the issue in this case.

[00:09:19] Speaker 02:
It's unique.

[00:09:20] Speaker 02:
And so like I said, only in the Moe case where, as I said, the distinction in the Moe case where this court said that you didn't need to give the instruction.

[00:09:35] Speaker 02:
There's a very, very narrow tailored indictment.

[00:09:39] Speaker 02:
And this indictment is all over the mat.

[00:09:42] Speaker 02:
And so that's why it should have been given.

[00:09:45] Speaker 04:
Can I ask you about the mask?

[00:09:46] Speaker 04:
Absolutely.

[00:09:47] Speaker 02:
I love to talk about that.

[00:09:50] Speaker 04:
Is there anything in the record that shows us what this mask, the masks, these clear masks look like or any objection that describes in what way they allegedly impaired the view of the witness?

[00:10:05] Speaker 02:
Well, the judge did make a finding on the record that you could see the person's nose and you could see the, you know, the lips and that or whatever it is and that sort of thing like that.

[00:10:17] Speaker 02:
But I don't think, I mean, we can go at, you know, use our common sense

[00:10:28] Speaker 02:
that this mask, it is entirely designed for lip reading.

[00:10:36] Speaker 01:
Council, I'm looking at the district court's statement here where he says,

[00:10:48] Speaker 01:
Witnesses will be wearing clear masks, which allow jurors and the defendant to observe the witness's facial expression.

[00:10:57] Speaker 01:
The confrontation clause does not require the jury to be able to see the entire face or body.

[00:11:03] Speaker 01:
However, in this case, they will be able to see the witnesses from head to toe.

[00:11:12] Speaker 01:
Was there ever any challenge to first to that factual determination by the district judge?

[00:11:19] Speaker 02:
No, the trial counsel did not specifically make any further objection to that.

[00:11:28] Speaker 01:
So why then, even if one assumed arguendo that this issue even implicates the Sixth Amendment, but even if we were to give you that,

[00:11:41] Speaker 01:
Why is that factual determination not dispositive here that there was no violation?

[00:11:50] Speaker 02:
Well, I think it is, I mean, we can look on the internet.

[00:11:58] Speaker 02:
I mean, we can take judicial notice of the fact of what these masks look like and the fact that they are designed for the hearing impaired and for lip reading.

[00:12:07] Speaker 02:
We have to be like this close in order to read the person's lips.

[00:12:11] Speaker 02:
And so it's, and you still, I mean, think about it.

[00:12:14] Speaker 02:
I mean, it's a matter of common sense.

[00:12:16] Speaker 02:
It's going to distort your face, your voice, and it is not a substitute for the Sixth Amendment.

[00:12:31] Speaker 02:
These masks were designed for lip reading and not to protect a defendant's constitutional rights.

[00:12:38] Speaker 02:
Yes, go ahead.

[00:12:40] Speaker 03:
Was there an objection by the defense to the masking of witnesses?

[00:12:45] Speaker 02:
To the masking?

[00:12:47] Speaker 02:
Yes, the masking in any masking.

[00:12:51] Speaker 02:
Initially, the defense counsel made a very good record that he objected to any masking as a violation of the Sixth Amendment right to confrontation.

[00:13:02] Speaker 04:
But given that the judge said you can see the witness.

[00:13:06] Speaker 04:
You're saying you can't see the witness, but I don't understand how we could agree with you instead of the fact finding of the judge when there wasn't even a further objection that said, you just said we can see the witness, but I can't see the witness.

[00:13:19] Speaker 04:
I mean, no one said during the trial, I can't see the witness.

[00:13:23] Speaker 02:
No, that's correct.

[00:13:25] Speaker 02:
I, you know, there wasn't a specific objection after the judge made that comment.

[00:13:31] Speaker 02:
Um, my, my concern is that, um,

[00:13:36] Speaker 02:
we can all know what these masks, you know, these clear masks look like and they're not a substitute for the fact that the court made no finding case specific that these masks, that any masks were necessary in this particular case.

[00:13:54] Speaker 02:
So whether it was a clear mask.

[00:13:57] Speaker 03:
Is that what you're arguing?

[00:13:58] Speaker 03:
Because he did make a finding that it was necessary for health and safety of the people

[00:14:07] Speaker 02:
But if we go back to the Smith versus Texas case, which I cited, by the time of the trial, the mask mandates were the CDC, the state of California had been rescinded.

[00:14:26] Speaker 02:
You didn't need a mask to enter the courthouse.

[00:14:29] Speaker 02:
There was no finding that anybody in this case was immunocompromised.

[00:14:34] Speaker 03:
Suffering from- But the local rule leaves that

[00:14:36] Speaker 03:
termination up to each judge, does it not?

[00:14:41] Speaker 02:
I would say no.

[00:14:43] Speaker 02:
Under the Maryland versus Craig, the judge has to make a case-specific finding.

[00:14:50] Speaker 01:
Counsel, why isn't it enough that the district court said finally, and most importantly, the court concludes that it can safely conduct a jury trial in this case

[00:15:01] Speaker 01:
by imposing COVID-19 safety protocols.

[00:15:06] Speaker 01:
The court discussed those last week, including the use of multiple courtrooms, social distancing where possible, and the use of masks.

[00:15:16] Speaker 01:
I mean, I take that language as the court's saying,

[00:15:19] Speaker 01:
there's a choice between conducting a trial with safety protocols, including masks, we're not conducting a trial right now.

[00:15:27] Speaker 01:
And if the judge had made the finding, all right, masks are a problem, so we won't have the trial, we'd be looking at a speedy trial act challenge, wouldn't we?

[00:15:39] Speaker 02:
Well, no, because this is January 2023.

[00:15:44] Speaker 02:
And again, I said, the CDC and the state of California no longer required these masks.

[00:15:54] Speaker 02:
And if the judge had said, OK, everybody's going to wear a mask, but when the witness takes a witness stand, they can just remove their mask, which what they did in a lot of cases that were tried at the height of the pandemic,

[00:16:08] Speaker 02:
We wouldn't be here.

[00:16:09] Speaker 02:
We wouldn't have a problem with that.

[00:16:11] Speaker 04:
I have no idea if this hypothetical is true, but imagine that this judge was either immunocompromised himself or knew that the prosecutor was immunocompromised or happened to know that the defense lawyer was immunocompromised.

[00:16:24] Speaker 04:
Do you think the judge had to say that on the record?

[00:16:27] Speaker 02:
Yes, absolutely.

[00:16:29] Speaker 04:
Why?

[00:16:30] Speaker 02:
Because if you look at Maryland versus they, judge has to make specific findings that are case specific to this particular case.

[00:16:38] Speaker 02:
You can't make assumptions like that.

[00:16:41] Speaker 04:
Um, and the judge said it was necessary for keeping safety.

[00:16:45] Speaker 04:
You think they had to disclose a personal thing.

[00:16:48] Speaker 04:
If that was the reason to, I mean, once they say this is needed, you don't think that's making the finding.

[00:16:54] Speaker 02:
No, I think the court has to make specific findings.

[00:16:58] Speaker 02:
And if somebody felt bad, you know, first of all, the judge said, you know, if you are feeling symptoms or whatever it is, you, you know, you need to let me know.

[00:17:07] Speaker 02:
And you can't come into the courtroom and know what he did.

[00:17:11] Speaker 02:
Nobody told him that they were in any risk at all.

[00:17:15] Speaker 02:
So I don't think that the judge can just assume that.

[00:17:20] Speaker 02:
that there's a problem there, because we have no evidence that anybody had any kind of symptoms or was at risk.

[00:17:29] Speaker 02:
And given the timing of, you know, all of this, and that's why I think that the court

[00:17:39] Speaker 02:
should not have required even these clear masks in order to safeguard the Sixth Amendment right.

[00:17:47] Speaker 02:
I think I might be running out of time.

[00:17:49] Speaker 04:
I'll give you two minutes for rebuttal, but let's hear from the government.

[00:17:52] Speaker 02:
Thank you.

[00:17:52] Speaker 02:
I'm sorry.

[00:17:56] Speaker 00:
Good morning, Your Honors, and may it please the court, William Larson of the United States.

[00:18:00] Speaker 00:
The jury convicted defendant of conspiring to distribute methamphetamine, heroin, and fentanyl after defendant admitted what was obvious to him, which was that the government's evidence was overwhelming.

[00:18:12] Speaker 00:
Government asked the court to affirm the conviction and sentence.

[00:18:16] Speaker 00:
And unless the court has specific questions, I'll just start where we left off with the mask issue.

[00:18:21] Speaker 00:
I agree with one thing defense counsel said, which is that this is a common sense claim.

[00:18:26] Speaker 00:
I think it's common sense that clear masks do not infringe on a defendant's confrontation right, at least on this record.

[00:18:33] Speaker 00:
There is, as the court noted in a number of questions, there's just no record evidence of any obstruction of any witnesses' face or demeanor.

[00:18:44] Speaker 00:
I think the district court's findings are detailed.

[00:18:48] Speaker 00:
It's about a six-page finding that goes through the procedural history of the case and then

[00:18:53] Speaker 00:
the specific facts in this case of which aspects of confrontation would be preserved.

[00:18:58] Speaker 00:
I don't think the district court needs to make findings of an exceptional need for necessity.

[00:19:05] Speaker 00:
This is not what Marilyn v. Craig requires.

[00:19:07] Speaker 00:
It's just case-specific findings, not case-unique ones or exceptional case findings.

[00:19:14] Speaker 00:
And the district court made those in great detail in this case.

[00:19:19] Speaker 00:
Turning to the buyer-seller instruction,

[00:19:23] Speaker 00:
The district court did not abuse its discretion in holding there was no evidentiary foundation for a buyer seller instruction in this case.

[00:19:30] Speaker 00:
And I think it's worth going through just very briefly the reasons that defense counsel offers for why they believe there was sufficient evidentiary foundation.

[00:19:42] Speaker 00:
I think three of them are just false and the other one is maybe true but irrelevant.

[00:19:47] Speaker 00:
The first argument is that there was no agreement

[00:19:50] Speaker 00:
no evidence of an agreement that defendant would redistribute drugs for caporelli.

[00:19:55] Speaker 00:
That's just false.

[00:19:57] Speaker 00:
Defendant admitted in Facebook posts, he had several pounds of methamphetamine that caporelli had paid for and defendant says to caporelli in a Facebook message, we need to get that circulating for you because you already paid for it and it's just sitting there.

[00:20:14] Speaker 00:
That's about as an explicit acknowledgement.

[00:20:17] Speaker 00:
And this is 3ER419.

[00:20:20] Speaker 00:
That's about an explicit statement of we're going to redistribute drugs for you as I think you're going to get.

[00:20:26] Speaker 00:
The second basis that defendant offered was that Caporelli said she worked solo and never said we.

[00:20:31] Speaker 00:
We pointed out a number of times where Caporelli and defendant together said we, not that any particular pronouns are required to establish a drug conspiracy.

[00:20:42] Speaker 00:
We need to be a lot more organized.

[00:20:44] Speaker 00:
Defendant explicitly said, we have done a lot together in the context of drug trafficking.

[00:20:49] Speaker 00:
And this quote that defense counsel focused on today that Caparelli saying she worked solo is only the first part of the quote.

[00:20:57] Speaker 00:
Caparelli says, I normally work solo, but sometimes you have to have somebody else there for collection or for help.

[00:21:04] Speaker 00:
And that person was defendant.

[00:21:06] Speaker 00:
In fact, defendant was in a car

[00:21:08] Speaker 00:
where he and Caparelli then drove around together collecting the undercover officer's drug order that night.

[00:21:18] Speaker 00:
The third basis defendant offers is that he wasn't there when Caparelli is arrested.

[00:21:23] Speaker 00:
That's true, but that's not relevant under the MOE factors, and I don't think we believe that conspirators need to spend every moment together to be conspirators.

[00:21:33] Speaker 00:
The fourth is that defendant did not personally possess the drugs when the Mazda was searched that first night.

[00:21:42] Speaker 00:
That ignores, over the two hours previous to that, he and Caprelli had driven around collecting those drugs after the undercover officer ordered them.

[00:21:50] Speaker 00:
So I think when you look at the evidence in this case, it really just is very thin of anything that would support a buyer seller instruction.

[00:21:58] Speaker 00:
And on the other hand, under this court's decisions in Moe and Ocampo Estrada,

[00:22:03] Speaker 00:
One, we have four districts wide latitude and formulating the instructions, but two, we're supposed to look at the entire relationship between the buyer and seller, not just focus on, you know, can we sort of pluck one fact out of the ether and make it sound like

[00:22:20] Speaker 00:
there might be a buyer-seller relationship.

[00:22:22] Speaker 00:
One, I don't think you can even do that here.

[00:22:24] Speaker 00:
But two, we are supposed to look at the whole relationship, and that's one of the things Mo instructs.

[00:22:31] Speaker 04:
And when you do look at that... Can I interrupt you and ask you to turn to a different topic?

[00:22:34] Speaker 04:
Can you address the drug quantity issue in sentencing?

[00:22:38] Speaker 04:
Because I'm really having trouble understanding how there was an adequate fact-finding here.

[00:22:42] Speaker 00:
So I think the district court's cross-references, I appreciate the opportunity to explain that because I was looking through the order yesterday and I think the cross-references obscure what actually is a pretty explicit finding by the court.

[00:22:56] Speaker 00:
So defendant objected both to the general drug quantity and to specific paragraphs of the PSR.

[00:23:03] Speaker 00:
And specifically paragraph 18 of the PSR is the paragraph containing the Miller, the sort of Miller quantity that's been at issue.

[00:23:13] Speaker 00:
So the district court first resolves the drug quantity and says, I find, you know, there's sufficient evidence to support a base events level of 36.

[00:23:20] Speaker 00:
I agree, if we just looked at that paragraph alone, I think it'd be a closer case, whether that sufficiently resolved the factual finding.

[00:23:29] Speaker 00:
But what I'd point the court to is actually 2ER 37.

[00:23:33] Speaker 00:
which is a couple pages later.

[00:23:35] Speaker 00:
And that's when the district court is addressing the specific objections to particular paragraphs that defendant raised, and specifically to paragraph 18, which is the Miller seizure.

[00:23:48] Speaker 00:
And there the district court says, I think even if you put aside the information contained in those paragraphs, the paragraphs reflecting the Miller quantity, there is sufficient evidence for the trier of fact to support the base offense level.

[00:24:00] Speaker 00:
So under rule 32, all the district court... What is that evidence?

[00:24:04] Speaker 04:
What is the court referring to there?

[00:24:06] Speaker 04:
I think you tried to piece it together in your brief with the Facebook posts, but I don't know how we... There's no finding that the Facebook posts weren't talking about the same drugs as the drugs that were calculated for other parts.

[00:24:18] Speaker 04:
Like you're using various things to get enough.

[00:24:20] Speaker 04:
There were drugs in the car.

[00:24:21] Speaker 04:
How do we know the Facebook posts weren't the same drugs as the drugs in the car?

[00:24:24] Speaker 04:
I don't understand how we could say the judge made a fact finding about this.

[00:24:28] Speaker 00:
So I point the court to the government's sentencing reply, which is to ER 113 and we walk through some of this and we cite additional Facebook posts in the brief.

[00:24:40] Speaker 00:
But I think the reason that we know that the quantities in the Facebook posts are above and beyond what was presented at trial is

[00:24:48] Speaker 00:
The quantities being discussed are just so much greater.

[00:24:50] Speaker 00:
So, for example, three ER419, there's one message refers to 32 ounces of methamphetamine, another refers to three pounds of methamphetamine.

[00:25:00] Speaker 00:
Either of those alone are just well above what was presented at trial.

[00:25:06] Speaker 00:
And, you know, I take the point, we don't know the purity of the drugs in the Facebook messages, but, you know, just assuming they're above the sort of 20% to even be methamphetamine, it sort of amply makes up the whatever gap between the trial evidence and the

[00:25:23] Speaker 00:
and the requisite 30,000 kilograms of converted drug weight necessary for the base events level of 36.

[00:25:29] Speaker 03:
Yes.

[00:25:31] Speaker 03:
I noted that the jury returned a special verdict in this case.

[00:25:36] Speaker 03:
Correct.

[00:25:39] Speaker 03:
Questions four and six that established by proof beyond reasonable

[00:25:49] Speaker 03:
the defendant, is the district court entitled to rely on that jury finding when it fashions the sentence here?

[00:25:57] Speaker 00:
Absolutely, Your Honor.

[00:25:58] Speaker 00:
And I think where we get to- That quantity was much lower, right?

[00:26:02] Speaker 00:
The quantity the jury had to find was much lower?

[00:26:05] Speaker 00:
Correct.

[00:26:06] Speaker 00:
But I think if you add them together with the trial evidence, so the chemist was about 1,383

[00:26:13] Speaker 00:
grams of methamphetamine, if you combine that with, and we've set this out in a table in the brief, but with the finding of the fentanyl and the finding of the heroin made by the jury, that gets you to 28,760 kilograms of converted drug weight.

[00:26:31] Speaker 01:
That's based on the chemist's testimony.

[00:26:34] Speaker 00:
The chemist's testimony and then the drug quantity findings on fentanyl and heroin, which leaves a gap of about 1,200 kilograms of converted drug weight.

[00:26:44] Speaker 00:
Based on the conversion tables, that's about 60 grams of methamphetamine, so roughly two ounces, which is a very small amount.

[00:26:51] Speaker 00:
We have Facebook messages, and we've highlighted a number of them, talking two, three pounds.

[00:26:58] Speaker 00:
Others talking about a quarter pound, which is obviously four ounces, so more than we need.

[00:27:02] Speaker 01:
But math-wise, between the chemist's testimony and the heroin, we're at 28,760 and we needed to get another basically 1240.

[00:27:18] Speaker 03:
Yes, exactly.

[00:27:20] Speaker 03:
And so to do that, the court could begin with the base that the jury established and then look at the other evidence in the case that's recounted in the pre-sentence report.

[00:27:31] Speaker 03:
and conclude that there were sufficient quantities reasonably foreseeable to row that could be considered in choosing a base offense level of 33.

[00:27:43] Speaker 00:
Correct.

[00:27:44] Speaker 00:
And I think that's exactly what the court did, especially if you look at 1ER 37, where it says even setting aside this other seizure based on the evidence, all of the evidence that I've considered, I find it was sufficient.

[00:27:58] Speaker 00:
And I'd also point out the district court in resolving another of the enhancements found the Facebook messages reliable and attributable to defendant.

[00:28:06] Speaker 04:
Are you arguing that this is harmless error or not error at all?

[00:28:11] Speaker 00:
For the drug quantity findings,

[00:28:13] Speaker 00:
We're arguing it's not error at all.

[00:28:17] Speaker 00:
I think because of the challenges framed as whether the district court made sufficient findings.

[00:28:25] Speaker 00:
And under Rule 32, we would have to, if the court determines that district court's findings weren't sufficient, then we agree that that would require a remin.

[00:28:34] Speaker 00:
But we don't think they're insufficient here.

[00:28:36] Speaker 00:
We think the district court, in fact, specifically resolved the objective to

[00:28:43] Speaker 00:
the drug seizure attributable to Miller.

[00:28:46] Speaker 04:
And basically you're saying that we can read from this thing on page 37 that this essentially was a finding that the Facebook posts were the drugs that were enough.

[00:28:55] Speaker 04:
I mean, we're supposed to understand it that way.

[00:28:57] Speaker 04:
It's not very specific or very clear how the judge is getting to the quantity here.

[00:29:04] Speaker 00:
I would combine that with the overall drug quantity findings on 1ER35, which discusses amounts reasonably foreseeable to defendant in the conspiracy, and then the district court's other findings at sentencing, which discuss the reliability of the Facebook messages.

[00:29:22] Speaker 00:
Plus, I think it's an implicit adoption of the government's sentencing papers, which explicitly disclaimed reliance on the Miller seizure.

[00:29:29] Speaker 00:
And relied on the Facebook.

[00:29:32] Speaker 01:
Cancel.

[00:29:33] Speaker 01:
I mean, you have the discussion of numbers.

[00:29:37] Speaker 01:
on the bottom of 35 that leads into 36.

[00:29:41] Speaker 01:
And then you have the court saying the court, after talking about some other things about the looking at the acts and omissions, the court finds that there is sufficient evidence in the record.

[00:29:50] Speaker 01:
And there was presented to the jury to support the base offense level of 36.

[00:29:55] Speaker 01:
And then you have this additional testimony, this additional finding by the district court on 37.

[00:30:00] Speaker 01:
But the discussion on 36 comes right after the court talks about numbers, right?

[00:30:06] Speaker 01:
That's right.

[00:30:08] Speaker 00:
I agree with that.

[00:30:09] Speaker 04:
But those numbers aren't enough, right?

[00:30:11] Speaker 04:
I don't understand how the bottom of 35 answers this.

[00:30:16] Speaker 00:
So I think what Judge Bennett was pointing out is this is coming immediately after the discussion of what the thresholds are.

[00:30:25] Speaker 00:
And when we're talking about

[00:30:28] Speaker 00:
The amounts presented to the jury because they are just shy of the amount required for base offense level 36 the district court says you know information presented to the jury.

[00:30:39] Speaker 00:
And and sufficient evidence in the record and that was presented to the jury.

[00:30:45] Speaker 00:
So the district court, I think, is referring to the evidence that the government had submitted, which were, it was largely Facebook posts.

[00:30:52] Speaker 00:
It was several dozen pages.

[00:30:54] Speaker 01:
But Council also, I mean, at the bottom of 35, he said, I mean, maybe I'm missing this, but he says you need 30 to 60, right?

[00:31:05] Speaker 00:
30 to 90.

[00:31:06] Speaker 01:
Yes, you need 30 to 90.

[00:31:09] Speaker 01:
Then he says there's sufficient evidence presented to the jury to support 36, which he's just said on the page before us, 30 to 90.

[00:31:20] Speaker 00:
Correct.

[00:31:21] Speaker 00:
It is an explicit finding that it was sufficient to exceed 30,000 kilograms of converted drug weight.

[00:31:34] Speaker 00:
Um, I see I'm running low on time.

[00:31:37] Speaker 00:
Um, I just, um, we do make a harmless error argument as to the buyer seller.

[00:31:44] Speaker 00:
I'm happy to address that if the court wants, but, um, otherwise we would ask that the court affirm the conviction in sentence.

[00:31:57] Speaker 04:
Thank you.

[00:31:57] Speaker 04:
I don't think we have further questions, so let's give two minutes for rebuttal.

[00:32:03] Speaker 02:
In terms of the sentence, I mean, the defense counsel's sentencing pleadings were very specific, starting from what the jury found.

[00:32:16] Speaker 02:
And the government sentencing papers were extremely vague.

[00:32:21] Speaker 02:
And it was then they ultimately disavowed what the PSR relied on this Miller stuff and the court

[00:32:30] Speaker 02:
I would disagree that the court made any specific findings or resolved the difference between what the defense was saying and what the prosecution was saying, or made any specific finding that the quantity that was ultimately resulted in the guidelines in the 324-month sentence

[00:32:54] Speaker 02:
that that was reasonably foreseeable.

[00:32:59] Speaker 04:
So the government is arguing that the Facebook posts fill in the drug quantity that's missing.

[00:33:03] Speaker 04:
What's wrong with that argument?

[00:33:06] Speaker 02:
Because the government, well, in their arguments,

[00:33:10] Speaker 02:
about why the buyer-seller agreement instruction was not necessary was because he wasn't charged with conspiring with the people on Facebook.

[00:33:23] Speaker 04:
I mean, and that's all just a bunch of, you know- But if there's a conspiracy to sell drugs, those were the customers of the conspiracy, right?

[00:33:29] Speaker 04:
So what's wrong with using the drug quantities in the Facebook posts?

[00:33:33] Speaker 02:
Well, because the drug quant, well, because we have to start with what the jury found.

[00:33:41] Speaker 02:
And that did not include the Facebook posts and the government, you know, we're talking about what caporelli and that's, you know, and the other defendants or were the drugs.

[00:33:54] Speaker 04:
What do you mean by the jury didn't find the Facebook posts?

[00:33:57] Speaker 04:
I'm not sure I understand what you mean by that.

[00:33:58] Speaker 02:
Well, I don't, I mean, the thing is, is that the drugs that were put forth to support finding of the jury, of the drug quantity included the drugs that were seized from Caporelli, not from, you know, conversations on Facebook.

[00:34:20] Speaker 02:
Nobody on Facebook was arrested.

[00:34:22] Speaker 02:
No drugs were seized.

[00:34:24] Speaker 02:
They're just talking back and forth.

[00:34:27] Speaker 03:
Well, but but under I mean, you're essentially arguing against the Pinkerton rule.

[00:34:32] Speaker 03:
Are you not that basically if the jury finds that a conspiracy exists, that he is chargeable with the responsibility for all drug distributions that were reasonably foreseeable at furtherance of the conspiracy.

[00:34:46] Speaker 03:
And so those textbook messages are clearly relevant under Pinkerton to drug sales that are reasonably foreseeable.

[00:34:54] Speaker 03:
And under our in-bank decision in United States versus Cardi, why isn't it adequate based on the recitation of the record that Judge Bennett summarized for us to conclude that the district court has shown enough of its work here to see that there was no error in the computation of the guidelines?

[00:35:16] Speaker 02:
Well, I think that given what the very detailed defense sentencing memorandum

[00:35:25] Speaker 02:
and the reply and the government's arguments, which were very vague as to how you would actually calculate these drug quantities.

[00:35:34] Speaker 02:
And the judge, his, the court's findings were basically that he was adopting the pre-sentence report and that the evidence was sufficient.

[00:35:44] Speaker 02:
That's very vague.

[00:35:45] Speaker 02:
So I think if you're gonna go from an extreme.

[00:35:49] Speaker 03:
If we start with the, what I'll call the starting point from the special verdict,

[00:35:55] Speaker 03:
that the jury return and we only need 1200 kilograms to get to the 30,000 level, then why can't the court look to the Facebook messages and the other evidence that's recounted in the pre-sentence report to conclude that there's enough here to charge the defendant with at least 30,000 kilograms?

[00:36:24] Speaker 02:
Well, I think that the court has to be much more specific in resolving the discrepancy between what the defense was putting forward and what the government was saying and what the PSR was saying.

[00:36:35] Speaker 02:
And the court did not do that.

[00:36:37] Speaker 01:
Sorry.

[00:36:40] Speaker 01:
Judge Freeland, I know we've.

[00:36:41] Speaker 02:
Go ahead.

[00:36:43] Speaker 01:
Okay.

[00:36:43] Speaker 01:
So do you agree?

[00:36:45] Speaker 01:
with the accuracy of this statement at page 8 in paragraph 49 of the PSR.

[00:36:53] Speaker 01:
The guideline and commentary referring to 1B1.3A hold the defendant accountable for his own behavior as well as the actions of others committed in furtherance of the jointly undertaken criminal activity

[00:37:07] Speaker 01:
with the exception of the conduct of others that was not reasonably foreseeable to the defendant, which is I think what Judge Tommen was talking about vis-a-vis Pinkerton, but that's the statement in the PSR.

[00:37:18] Speaker 01:
Do you agree?

[00:37:19] Speaker 01:
That's a correct statement of the law.

[00:37:22] Speaker 02:
Um, I would agree that it is generally a correct statement of the law.

[00:37:25] Speaker 02:
The problem is, is that the PSR then found that, uh, calculated this, all the drugs seized this Ian Miller guy that even the government disavowed reliance on.

[00:37:39] Speaker 02:
So it's the connection.

[00:37:41] Speaker 02:
It's the leap between the evidence.

[00:37:44] Speaker 02:
and the bare statement of what is the law, there was absolutely no evidence to show that Mr. Rowe would have known much less or known anything about Mr. Miller and that those drugs that were seized was reasonably foreseeable to him.

[00:38:06] Speaker 04:
Can I ask this maybe a different way?

[00:38:08] Speaker 04:
So

[00:38:09] Speaker 04:
I think the judge could have said these Facebook posts are enough.

[00:38:13] Speaker 04:
There definitely was enough evidence here to support the drug quantity.

[00:38:17] Speaker 04:
So it seems to me anyway that the only question is whether the judge didn't make a specific enough finding.

[00:38:22] Speaker 04:
So we would need to remand for the judge to make that specific finding, which probably would be the Facebook posts are enough and then probably would impose the same sentence.

[00:38:30] Speaker 04:
But you're arguing we should go through those steps.

[00:38:33] Speaker 04:
Why should we do that?

[00:38:35] Speaker 02:
Well, because the

[00:38:39] Speaker 02:
Again, the court's finding was very vague, so that if we have to go through it again, we have to go through it again.

[00:38:48] Speaker 02:
They give both sides an opportunity to defend their positions, and they have the court to actually resolve the discrepancies, which the court did not do.

[00:38:58] Speaker 02:
And this is done all the time, and it's the court's responsibility, and that is why we should remand

[00:39:09] Speaker 02:
If we don't vacate the sentence, excuse me, the conviction, we should definitely remand the sentence.

[00:39:14] Speaker 04:
Is there any chance that if the court went back and recalculated that the quantity would actually be higher and things would be worse for your client?

[00:39:23] Speaker 02:
No, I don't believe so.

[00:39:26] Speaker 02:
And I know I'm running, I've been all the time.

[00:39:28] Speaker 02:
I just want to go back at one last sentence about the buyer seller instruction and everything that the government was saying.

[00:39:35] Speaker 02:
Remember, we're not here arguing as efficiency of evidence claim.

[00:39:41] Speaker 02:
We are only arguing whether or not this defendant was deprived of his right to present a defense.

[00:39:47] Speaker 02:
That's the issue.

[00:39:51] Speaker 02:
Thank you.

[00:39:51] Speaker 02:
But I will submit.

[00:39:52] Speaker 02:
I will submit.

[00:39:53] Speaker 04:
We're out of time.

[00:39:54] Speaker 04:
So thank you both sides for the helpful arguments in this case.

[00:39:57] Speaker 04:
This case is submitted.