[00:00:12] Speaker 03:
We'll hear argument in our third case of the morning, case 23-4306, United States versus Saganah.

[00:00:45] Speaker 02:
Good morning, Mr. Miller.

[00:00:46] Speaker 02:
Good morning, Your Honor.

[00:00:49] Speaker 02:
May it please the Court, my name is Richard Miller, and I'm here on behalf of Defendant Pellant Bonifacio Sagana.

[00:00:56] Speaker 02:
I'd like to reserve two minutes for rebuttal.

[00:00:59] Speaker 02:
I'll be focusing my remarks on the insufficiency of the evidence issues, and I'll touch on the Leader Organizer Sentencing Enhancement at the end.

[00:01:10] Speaker 02:
Mr. Sagana was convicted of conspiring to produce a CNMI driver's license without lawful authority.

[00:01:18] Speaker 02:
Yet the government failed to show that it was unlawful for the Bureau of Motor Vehicles to renew Bernardita Zata's driver's license.

[00:01:26] Speaker 02:
They claimed it was unlawful for the Bureau of Motor Vehicles to renew her license because she was an alien who was out of immigration status.

[00:01:35] Speaker 02:
but they did not introduce into evidence any CNMI statute or regulation that in 2017, the time of the alleged offense, would have prohibited Bureau of Motor Vehicles from renewing a license for an undocumented alien.

[00:01:52] Speaker 03:
The implication of this argument would appear to be that there was just no purpose to have falsified the I-94 and taken that to the DMV?

[00:02:06] Speaker 03:
Possibly no.

[00:02:08] Speaker 03:
Why would your client have gone to the trouble if it wasn't necessary?

[00:02:14] Speaker 02:
My client had a misunderstanding about what was lawful and what wasn't.

[00:02:17] Speaker 02:
Maybe it was unlawful in the past, but by 2017, it wasn't unlawful.

[00:02:23] Speaker 02:
Maybe a law had been passed that would make it unlawful, but it wasn't in effect in 2016.

[00:02:30] Speaker 02:
Maybe it didn't go into effect until 2016.

[00:02:33] Speaker 02:
Maybe he and Ms.

[00:02:35] Speaker 02:
Otto were mistaken.

[00:02:37] Speaker 02:
Maybe there were rumors in the community that this was necessary.

[00:02:40] Speaker 03:
These are all maybes, but I take the point that the implication of this position is that this entire scheme was just some kind of mistake or misunderstanding, and there was no actual need to go and do what he was doing, if you're correct on this point.

[00:02:54] Speaker 02:
Well, that's true, but the issue is whether the government provided evidence to support its burden.

[00:03:00] Speaker 02:
It's the government's burden to show that it was without lawful authority.

[00:03:03] Speaker 02:
It's not our burden to show that it was with lawful authority.

[00:03:09] Speaker 02:
You know, I think we probably all had experiences where agencies asked us to provide certain types of information in an application.

[00:03:18] Speaker 02:
And in fact, the agency had no lawful authority to ask for that, but they did it because they had record keeping.

[00:03:24] Speaker 02:
They were interested to find out something.

[00:03:27] Speaker 02:
And if you say, well, I don't have to give my social security number, they said, well, yes, you have to.

[00:03:33] Speaker 02:
Show me the regulation.

[00:03:34] Speaker 02:
Show me the law.

[00:03:35] Speaker 02:
We don't know.

[00:03:36] Speaker 02:
Maybe that's the case here.

[00:03:37] Speaker 02:
The government didn't carry its burden.

[00:03:40] Speaker 02:
The only testimony that was offered from a law enforcement officer, Agent David West, who's a Homeland Security agent,

[00:03:47] Speaker 02:
He was not a CNMI officer, and Agent West testified that he couldn't tell if there was a law or not.

[00:03:55] Speaker 02:
The government offered no other theory of unlawful authority, such as flunking a test or failing to take a road test, that was the issue that this court addressed in, saw in Turchin, or say failing to read an eye chart.

[00:04:11] Speaker 02:
Their only theory of unlawfulness was that Ms.

[00:04:13] Speaker 02:
Otter was out of status.

[00:04:15] Speaker 02:
The government's backup position in its brief is that to convict for conspiracy, they did not have to prove the actual production was unlawful.

[00:04:24] Speaker 02:
This makes no sense.

[00:04:26] Speaker 02:
Just because the object of a conspiracy need not be completed does not mean a jury can convict a person of conspiring to do something that isn't unlawful.

[00:04:36] Speaker 02:
And Ninth Circuit case law, we cited to Everett and Lothian in our reply brief, is clear that if the contemplated act isn't unlawful,

[00:04:44] Speaker 02:
there can be no conspiracy to commit it.

[00:04:48] Speaker 02:
The government trumpets the testimony of federal agent, also an HSI agent, Frederick Jonas, as to why copies of passports in I-94s would be in BMV files, and this goes to Judge Bress's question.

[00:05:04] Speaker 02:
But Agent Jonas also testified that he didn't know if the so-called requirement was actually according to any CNMI law, and that's at ER 491.

[00:05:14] Speaker 02:
Agent West testified the same.

[00:05:15] Speaker 02:
It's a requirement, but, quote, I couldn't tell you if it's a law or not, and that was it.

[00:05:21] Speaker 02:
Three of three and three of four.

[00:05:22] Speaker 03:
That's about the effecting commerce issue.

[00:05:23] Speaker 03:
So your position is that this didn't affect commerce because

[00:05:26] Speaker 03:
she was not able to leave, she wasn't able to come even to Hawaii with this driver's license?

[00:05:38] Speaker 03:
That's correct, Your Honor.

[00:05:39] Speaker 03:
Okay, so why doesn't it still affect commerce just because the driver's license would enable her to do things on the island that would affect commerce?

[00:05:48] Speaker 02:
We don't know if the driver's license would.

[00:05:50] Speaker 02:
We don't know if it was a driver's license with a real ID or a real ID license or not.

[00:05:55] Speaker 03:
Well, but I mean, it's sort of common knowledge that having a driver's license gives you the ability to travel around and do things even within an island.

[00:06:04] Speaker 03:
There's a way to affect commerce through that, no?

[00:06:06] Speaker 02:
Well, possibly there is, but Ms.

[00:06:09] Speaker 02:
Dodd testified that she had no intention of traveling with a license.

[00:06:14] Speaker 02:
She was questioned on that by defense counsel.

[00:06:17] Speaker 02:
And also, she could not have gotten on a plane and traveled anywhere because it was uncontroverted that she was an unlawful alien.

[00:06:27] Speaker 02:
She was not in the United States with any status.

[00:06:32] Speaker 02:
And she simply could not have gotten on a plane and gone anywhere.

[00:06:36] Speaker 00:
Council, what about her affecting interstate commerce by, I mean, does Saipan make its own cars?

[00:06:42] Speaker 02:
No, Saipan doesn't make its own cars.

[00:06:44] Speaker 02:
So they're all imported?

[00:06:46] Speaker 02:
That was the government's position, and there were three stipulations that we stipulated to court, took judicial notice that cars are not made on Saipan, gas is not produced or refined on Saipan, and that equipment that Department of Motor Vehicles uses to produce driver's licenses come from off-island

[00:07:06] Speaker 02:
And it's our position that that's simply not enough.

[00:07:09] Speaker 02:
If that's enough to satisfy the interstate commerce federal nexus, then essentially the government doesn't have to prove the federal nexus because

[00:07:22] Speaker 02:
All of those things would be sufficient to prove federal nexus in California or in Nevada or in Hawaii.

[00:07:30] Speaker 02:
Not all cars that are sold in California are produced in California.

[00:07:39] Speaker 02:
Not all equipment that motor vehicles use to create driver's licenses are produced in California.

[00:07:46] Speaker 02:
despite the refineries in Richmond, California, not everything, not all gas in California certainly isn't sourced in California, nor is it refined in California.

[00:07:58] Speaker 02:
So essentially, the government doesn't have to prove this at all.

[00:08:01] Speaker 02:
And the federal government can go in to any state in the Ninth Circuit and say, we don't have to put on any evidence, actually.

[00:08:09] Speaker 00:
Council, can you give me an example then, or a hypothetical, how it would work then with,

[00:08:16] Speaker 00:
Given the fact that she was unable to travel outside of the area, what does that look like?

[00:08:26] Speaker 00:
What I'm hearing you say is that the Commerce Clause is only impacted if she does something substantial, like tries to fly somewhere else, but she can't do that because she doesn't have legal standing.

[00:08:39] Speaker 00:
Where is it implicated then?

[00:08:45] Speaker 02:
Your Honor, you used the word substantial, and that takes me back to Supreme Court rulings about the extent of Congress's power to regulate interstate commerce.

[00:08:58] Speaker 02:
And Supreme Court has said repeatedly that it has to have a substantial effect on interstate commerce.

[00:09:08] Speaker 02:
That's the limitation on Congress's power.

[00:09:12] Speaker 02:
write a law that says inter-effects interstate commerce.

[00:09:17] Speaker 02:
and that's minimal, but minimal is going to be, still has to be within the overall constitutional power, and that constitutional power is a substantial effect.

[00:09:31] Speaker 02:
We would assert that under the facts in this case, particularly with respect to Misada, simply the prospects, and again we're talking about

[00:09:46] Speaker 02:
hypothetically, well, couldn't she use that driver's license to drive somewhere if she went elsewhere?

[00:09:54] Speaker 02:
That's extremely attenuated, because the chance of her getting somewhere other than the CNMI is almost nil.

[00:10:05] Speaker 03:
That's true.

[00:10:07] Speaker 03:
The question is, does it matter?

[00:10:08] Speaker 03:
Because with the driver's license, she has greater ability to do commerce within CNMI, and that would bring in a whole host of other interstate commerce features to her.

[00:10:24] Speaker 03:
there that she might not have if she didn't have the driver's license.

[00:10:29] Speaker 03:
Gasoline is the example that was offered at trial, but we could come up with a lot of other ones, too.

[00:10:40] Speaker 02:
had a car and was driving anyway.

[00:10:43] Speaker 02:
Now, even if the driver's license wasn't renewed, she was driving.

[00:10:47] Speaker 02:
So I would still argue that that effect is not significant enough.

[00:10:56] Speaker 02:
And I would go back to case law, for example, the Turchin case in the Ninth Circuit, where what the court pointed to was there was a commercial driver's license

[00:11:10] Speaker 02:
and for use on interstate highways that would allow her to travel elsewhere.

[00:11:16] Speaker 02:
The court there and in other cases that are cited in our brief is always looking for something more than what the government has provided here.

[00:11:24] Speaker 02:
Again, if what the government has provided in evidence is enough, then the federal nexus is essentially meaningless.

[00:11:37] Speaker 01:
The effect can be potentially modest and indirect.

[00:11:41] Speaker 02:
Yes.

[00:11:42] Speaker 01:
I mean, it's pretty broad language.

[00:11:45] Speaker 02:
It is pretty broad language, potentially modest and indirect.

[00:11:49] Speaker 02:
But how indirect is the question and how modest?

[00:11:52] Speaker 02:
Modest still has to be some non-zero sum.

[00:11:58] Speaker 02:
It has to be some distance greater than the distance

[00:12:01] Speaker 02:
that you can possibly imagine, any connection you can possibly imagine, to be meaningful.

[00:12:07] Speaker 02:
And we need some meaningful guideline here, otherwise the federal government, otherwise the federal nexus is essentially proved in any driver's license case at all, under any circumstances.

[00:12:22] Speaker 03:
Can you address the organizer enhancement?

[00:12:24] Speaker 02:
Sorry?

[00:12:25] Speaker 02:
Can you address the organizer enhancement?

[00:12:27] Speaker 02:
Thank you, Your Honor.

[00:12:32] Speaker 02:
The district court incorrectly found that Mr. Sugano was a leader organizer under Section 3B.1.1, enhanced him by two levels, and that thereby deprived him of a two-level reduction as a zero-point offender.

[00:12:47] Speaker 02:
And the main case that the government relied on and that the court relied on was the Vinge case out of this circuit just last year.

[00:12:55] Speaker 02:
Vinge said that the organizer enhancement applies when the necessary influence and ability to coordinate the behavior of others so as to achieve the desired criminal result.

[00:13:07] Speaker 02:
And what's interesting in Vinge is that

[00:13:09] Speaker 02:
The court found there that his co-conspirator did not qualify for the enhancement because he did not manage drug distributors or reach out to and place orders with drug suppliers.

[00:13:24] Speaker 02:
And here in this case, the only connection is with Ms.

[00:13:27] Speaker 02:
Zada.

[00:13:28] Speaker 02:
And this is, we would submit this more like a buyer-seller relationship that one sees in drug cases.

[00:13:34] Speaker 02:
There was no evidence that he had conspired with anyone in Bureau of Motor Vehicles.

[00:13:38] Speaker 02:
No one from Bureau of Motor Vehicles testified as to some co-conspirator lurking in the Bureau.

[00:13:45] Speaker 02:
There's nobody on the far end.

[00:13:47] Speaker 02:
And in fact, if Mr. Sagana was producing on his own a fake I-94 that looked on all appearances at first blush like it was real,

[00:13:57] Speaker 02:
He wouldn't need to have anyone that he was conspiring with within motor vehicles because he's coming up and producing and giving them an I-94 and the clerk looks at it and says, that's fine, that's all we need.

[00:14:09] Speaker 02:
So there was no evidence of anyone else.

[00:14:12] Speaker 02:
For that reason, we think the court must apply.

[00:14:14] Speaker 03:
The suggestion from the government would seem to be that

[00:14:19] Speaker 03:
Zato was not just a sort of passive person in the sense that he involves her to accomplish the end goal of getting the driver's license.

[00:14:30] Speaker 03:
Yes, she approached him, and he did some things on his own, but then he had to utilize her to accomplish the end.

[00:14:37] Speaker 03:
So why would that not be enough to be an organizer?

[00:14:41] Speaker 02:
I don't think he's utilizing her in any way different from, say,

[00:14:46] Speaker 02:
someone who's selling drugs that says, look, I need you to meet me over at the corner on this street, and I want you to wear something red, that way I'll recognize you, and this or the other telling me certain things in order to get this transaction done.

[00:14:58] Speaker 02:
I don't see it as any more involved than that.

[00:15:03] Speaker 02:
She wasn't producing the I-94s.

[00:15:05] Speaker 03:
What about the suggestion or the indication of the record that he had done this for other people?

[00:15:11] Speaker 03:
That's why she went to him.

[00:15:13] Speaker 03:
She knew that he was somebody who could help with this issue.

[00:15:16] Speaker 03:
Garcia did the same thing, but the inference is that he was doing this more than once.

[00:15:24] Speaker 02:
He wasn't charged with, Mr. Garcia was not named as a co-conspirator and there weren't unindicted co-conspirators here.

[00:15:36] Speaker 02:
I don't think that the district court judge relied on that in her sentencing, so I don't think that's a- Would it be improper to rely on that?

[00:15:46] Speaker 02:
No, I don't think so anymore.

[00:15:47] Speaker 02:
It would be proper to rely on to say that someone was in a drug conspiracy with all the people they sold drugs to, and they come to him because they've heard that he sells drugs, and that doesn't make him a conspirator with all of them for purposes, at least,

[00:16:04] Speaker 02:
of the enhancement.

[00:16:05] Speaker 02:
If I may, Your Honor, I see I'm almost out of time, but I just wanted to point out I went to the Bureau of Prison's inmate locator yesterday.

[00:16:15] Speaker 02:
Mr. Sagan is still due to be released, estimated on July 30th.

[00:16:21] Speaker 02:
He was incarcerated in March of last year.

[00:16:26] Speaker 02:
So if the court

[00:16:28] Speaker 02:
does find in his favor on the sentencing argument, he will, we would ask the court to remand with instructions to release him pending re-sentencing.

[00:16:47] Speaker 02:
If the four points that he lost were given back to him, he would go from offense level 17 to offense level 13.

[00:16:57] Speaker 02:
The district court judge sentenced him to the bottom end of the offense level 17 range, 24 months.

[00:17:04] Speaker 02:
The bottom end of the offense level 13 range is 12 months.

[00:17:10] Speaker 02:
There's a good chance that if the case is remanded on sentencing that, in fact, he's basically served his time by now.

[00:17:18] Speaker 02:
Thank you, Your Honors.

[00:17:19] Speaker 03:
We'll put two minutes on the clock for rebuttal.

[00:17:21] Speaker 03:
Thank you, Your Honor.

[00:17:23] Speaker 03:
I'll hear from the government.

[00:17:30] Speaker 04:
Good morning.

[00:17:31] Speaker 04:
May it please the court, Garth Backe, on behalf of the United States.

[00:17:35] Speaker 04:
This court should affirm defendant's conviction and sentence.

[00:17:39] Speaker 04:
The government presented sufficient evidence at his jury trial.

[00:17:42] Speaker 04:
The lower court did not abuse its discretion in its handling of Wadir, and the lower court did not commit clear error

[00:17:49] Speaker 04:
in its factual finding that this appellant was an organizer under 3B1.1 of the sentencing guidelines.

[00:17:56] Speaker 03:
Maybe we could just start at that last point since that's where we just were.

[00:18:00] Speaker 03:
So why was he an organizer when she had come to him?

[00:18:06] Speaker 03:
Is this different than the situation where somebody wants to buy drugs and the dealer says, yeah, meet me on the corner?

[00:18:13] Speaker 03:
We don't usually think of the dealer as an organizer in that case.

[00:18:17] Speaker 03:
Is this case different?

[00:18:18] Speaker 04:
I believe it's different.

[00:18:19] Speaker 04:
I don't think the initial overture is determinative.

[00:18:22] Speaker 04:
If I may just back off one second.

[00:18:25] Speaker 04:
The defendant's entire argument regarding leadership is hinged on Zata not being a participant, although she was found by the jury to be his criminal co-conspirator in this case.

[00:18:35] Speaker 04:
She is the only co-conspirator, and so he was found guilty of conspiring with her.

[00:18:39] Speaker 04:
So she meets the definition of participant under the guidelines.

[00:18:43] Speaker 04:
But you are correct, Your Honor, that maybe she initiated the first contact, but from that point forward, he led her actions in every respect.

[00:18:51] Speaker 04:
From the time to where, time and place to meet, they went to the cashier, he went and paid, she waited outside, he then brings her over to the BMD, she sits on the side, he processes the documents, he actually submits all of her applications.

[00:19:04] Speaker 04:
So she is literally,

[00:19:06] Speaker 04:
following him.

[00:19:07] Speaker 04:
And so I organized, it seems to me that VINJ is not quite saying organizer really means literally to organize.

[00:19:14] Speaker 04:
There is a leadership type of component to it.

[00:19:18] Speaker 00:
Council, let me ask then, explain to me how that's different than facilitation of what, I mean, I kind of read what Mr. Sagana did, it was more to facilitate Ms.

[00:19:32] Speaker 00:
Zata being able to get her driver's license.

[00:19:34] Speaker 00:
Explain to me why it's more organization and less facilitation.

[00:19:43] Speaker 04:
I'm not sure I completely understand your question, Your Honor, but I still don't think facilitation, if it was deemed a facilitator, I just don't think that would be dispositive and therefore the organizer enhancement would not apply on the facts that are presented at his trial.

[00:19:59] Speaker 04:
Again, he is, she knows nothing, he knows everything.

[00:20:04] Speaker 04:
But for his connections, his knowledge of the documents, this crime is not being completed.

[00:20:09] Speaker 03:
Okay, so I mean, if she had come to him and said, I need this driver's license, and he said, wait right here, and he disappeared for an hour, and came back with a perfect driver's license for her, I take it your position is, in that case, he's not an organizer?

[00:20:28] Speaker 03:
I guess he would not be in order.

[00:20:30] Speaker 03:
What would he have organized at that point?

[00:20:32] Speaker 03:
I mean, she's just standing there doing nothing.

[00:20:35] Speaker 03:
So I'm trying to figure out what it is that she did here that he had her do that causes this to not be that situation.

[00:20:41] Speaker 04:
Be present.

[00:20:42] Speaker 04:
Be present.

[00:20:43] Speaker 04:
Because be present, she must be there to get the driver's license.

[00:20:45] Speaker 04:
She sat and took the picture.

[00:20:47] Speaker 04:
So she had to be there.

[00:20:49] Speaker 04:
He could not accomplish this without her presence.

[00:20:51] Speaker 04:
And again, this driver's license was for her, not for him.

[00:20:53] Speaker 04:
And so she sat there and waited while he processed the document.

[00:20:57] Speaker 04:
And at the appropriate time, she

[00:20:58] Speaker 04:
stood up and took the picture, and then from that, the driver's license was produced.

[00:21:02] Speaker 03:
Okay, but somebody to get drugs has to be there to get them too, at least in many cases.

[00:21:07] Speaker 03:
So what would be the difference if somebody wants to buy drugs and the drug dealer says, okay, meet me on the corner of these two streets, and the person goes and does that, and the transaction then happens?

[00:21:18] Speaker 03:
Is the drug dealer then an organizer?

[00:21:20] Speaker 04:
I apologize, I just don't think that's actually comparable to this situation.

[00:21:24] Speaker 03:
No, and so that's what I want to understand is why.

[00:21:27] Speaker 04:
Because it takes two to tango in order to produce this driver's license.

[00:21:31] Speaker 04:
He did not have the knowledge necessary to procure it.

[00:21:35] Speaker 04:
He cannot get the driver's license without her physical.

[00:21:39] Speaker 04:
Again, when it comes to, I mean, I think Vinge talks about the ability to influence someone's actions.

[00:21:44] Speaker 04:
I mean, we had that literally in this case where she was, again, following him, following his cues, producing the documents.

[00:21:51] Speaker 04:
Everything was at his discretion.

[00:21:55] Speaker 00:
Does it matter that she went and asked for it, though?

[00:21:59] Speaker 04:
That's what I said in the beginning, Your Honor.

[00:22:00] Speaker 04:
I understand that she initiated that and that kind of speaks to the word organized, but that's not what Vince said.

[00:22:08] Speaker 04:
I don't think that the initial overture is dispositive.

[00:22:12] Speaker 03:
Are there cases where the person being organized, if you will, was the person who essentially requested the wrongdoing?

[00:22:24] Speaker 03:
I mean, because we have cases, organizer cases, where people are, you know, underlings in an unlawful operation, but here, you know, she came to him, and are there cases where that, Ninth Circuit cases or other cases that you're aware of where that was the fact pattern?

[00:22:43] Speaker 04:
I'm not sure, and I don't know of any parties or even the district court considering any other case but Vinge.

[00:22:48] Speaker 04:
and to the extent that that limits us.

[00:22:50] Speaker 04:
But to the extent I'm limited in only arguing that he meets the definition of an organizer, I think the definition of a leader, which is the other component of 3D 1.1.

[00:23:00] Speaker 04:
He definitely led her, and I don't think we need to.

[00:23:03] Speaker 03:
What's your position on whether one can consider evidence or inferences that he led other people also?

[00:23:10] Speaker 03:
Could this enhancement be justified on that basis?

[00:23:13] Speaker 04:
No, John.

[00:23:14] Speaker 04:
The relevant conduct is only going to be determined by his conduct with Ms.

[00:23:17] Speaker 04:
Sata.

[00:23:18] Speaker 04:
If I may, Your Honor, each one of the basis this defendant puts forth to upset the jury's verdict and the lower court rulings arrests on a faulty premise.

[00:23:29] Speaker 04:
First, contrary to his claim, the government was not required to prove as an essential element that the production was in fact unlawful.

[00:23:38] Speaker 04:
Now, to be clear, there is a statute, local statute, that says you must have lawful status

[00:23:45] Speaker 04:
received a driver's license to the extent the court was concerned about that.

[00:23:50] Speaker 04:
The second defendant is a local law, 9 CMC 2208, and it was cited in the government's trial brief.

[00:24:05] Speaker 04:
No, Your Honor.

[00:24:07] Speaker 01:
So it's nine what?

[00:24:08] Speaker 04:
I'm sorry, nine CMC 2208.

[00:24:11] Speaker 04:
If you Google that, it'll come right up.

[00:24:15] Speaker 04:
But this, Your Honor, and I apologize, this was about the 15th case that we had under similar facts.

[00:24:21] Speaker 04:
Everyone was operating and understanding that this was in fact unlawful.

[00:24:24] Speaker 04:
The question is whether we presented sufficient evidence at trial.

[00:24:28] Speaker 04:
But this is in fact, it was in fact lawfully procured.

[00:24:32] Speaker 04:
But the unlawful production was not an essential element of this crime.

[00:24:37] Speaker 04:
If I may continue, the defendant is incorrect in asserting the pretrial publicity in this case, or in any case for that matter, divest the trial court of its discretion and requires it to follow a precise rule relative to the voir dire examination.

[00:24:53] Speaker 04:
Finally, in regards to the defendant's interstate commerce argument, none of the cases he relies upon stand for the proposition that the government's evidence on this point was insufficient.

[00:25:04] Speaker 04:
Indeed, he fails to cite a single case holding that the government had not met its burden and the defendant was entitled to a judgment of acquittal.

[00:25:12] Speaker 04:
In other words, no case put forth establishes the type or amount of evidence legally required in order for the government to prevail.

[00:25:22] Speaker 04:
Now, if I might pause and address this argument in greater detail.

[00:25:26] Speaker 04:
What happened in this case was, for all intents and purposes, a commercial transaction.

[00:25:31] Speaker 04:
In exchange for money, the Bureau of Motor Vehicles produced a product.

[00:25:36] Speaker 04:
that was a made-to-order product, it wasn't off the shelf, but for that money, that product is not getting made, and that product was produced and manufactured exclusively with parts, equipment, and materials from Off Island.

[00:25:49] Speaker 04:
Now, to the extent this court might be concerned that if you find that interstate commerce is satisfied in this case, then where's the line?

[00:25:56] Speaker 04:
When would you not be able to find it?

[00:25:57] Speaker 04:
I can give you two examples, and I'll also give you an example of where interstate commerce would probably prevent the government from ever charging the case in the first place

[00:26:05] Speaker 04:
because that in fact happens to us quite often.

[00:26:08] Speaker 04:
The first scenario I would give you, and let me pause, the definition of produce includes to alter.

[00:26:16] Speaker 04:
So if you were to take a lawfully issued state ID, let's say an 18 year old takes a lawfully issued state ID, an exacto knife is birth date, and alters it to be 21, using materials,

[00:26:32] Speaker 04:
produced exclusively from in-state, then that would be a sufficiency of the evidence problem.

[00:26:39] Speaker 04:
A birth certificate is also an identification document.

[00:26:41] Speaker 04:
Now that is a paper record that is easily altered.

[00:26:45] Speaker 04:
And again, I think that that could easily be altered without parts, materials, or equipment that were produced out of state.

[00:26:51] Speaker 04:
Now lastly, oftentimes we come upon a document, excuse me, a driver's license that is clearly fake.

[00:26:59] Speaker 04:
It does not line up with the driver's license that has been produced at BMV.

[00:27:03] Speaker 04:
We know they did not manufacture it.

[00:27:05] Speaker 04:
But we are without evidence to show where it came from or how it was made.

[00:27:10] Speaker 04:
For example, maybe it was made by a Chinese citizen and they brought it.

[00:27:15] Speaker 04:
If we don't have that evidence, we don't prosecute because we will not be able to establish interstate or foreign commerce.

[00:27:22] Speaker 04:
So there are lines to be drawn.

[00:27:25] Speaker 04:
This case is not it.

[00:27:27] Speaker 03:
Again, we focus on how the document was made and whether the implements for making it or altering it came from outside of CNMI.

[00:27:38] Speaker 03:
What about the use of the document going forward?

[00:27:41] Speaker 03:
Would that not affect commerce?

[00:27:43] Speaker 04:
Of course it would affect commerce.

[00:27:44] Speaker 04:
You're right.

[00:27:44] Speaker 04:
I don't think the case law support says that it must be a commercial driver's license.

[00:27:48] Speaker 03:
And even in some of your hypotheticals or cases in which you're not charging, it seems that there's still an argument that nonetheless this document or license can then be used in a way that affects commerce and so therefore the nexus would be met there too.

[00:28:05] Speaker 04:
Yes, that's in addition to, to the extent that I'm understanding, Your Honor.

[00:28:09] Speaker 03:
Well, I mean, again, it just gets to the point that I'm not sure these limits that you're mentioning are really real limits, and maybe that's the right answer here, that there are effectively are no limits.

[00:28:22] Speaker 04:
In a production case, because the charge here is production, I think the appellant's argument might have more weight if this was use, trafficking, transfer, or possession.

[00:28:33] Speaker 04:
But this is, what we're focusing in on is the manufacturer or production.

[00:28:37] Speaker 04:
And again, the production in this case was exclusively interstate and related to interstate commerce.

[00:28:44] Speaker 04:
Now I think it's appropriate to look at the effect of that production afterwards, but that's only, that is in addition to, that's just additional evidence on the effect that this production had on interstate commerce.

[00:29:01] Speaker 04:
unless the panel has any more questions.

[00:29:05] Speaker 04:
Thank you very much.

[00:29:06] Speaker 04:
Thank you.

[00:29:14] Speaker 02:
Your Honor, let me start where the government just left off.

[00:29:20] Speaker 02:
The government said that it wouldn't charge if it was a birth certificate, not a driver's license.

[00:29:25] Speaker 02:
Well, that might be their discretion not to charge it,

[00:29:29] Speaker 02:
But if the court finds that federal nexus is met in this case, they could certainly meet it with a birth certificate, because you can take a birth certificate to another state and use that to prove that you're old enough to drink in an establishment and have commerce.

[00:29:46] Speaker 02:
So it's just a matter of their discretion.

[00:29:48] Speaker 02:
It's not a matter of birth certificates, not enough to establish a federal nexus if the court

[00:29:54] Speaker 02:
if the court affirms on that background here, the Supreme Court, there are cases, I'm thinking particularly of the Jones case out of the Supreme Court, I think it was in 2000, where that was the federal arson statute, and the court said, well, if we accept that burning this, setting fire to this house,

[00:30:18] Speaker 02:
that was a private residence is federal nexus because the materials to build the house come from out of state, then practically everything is federal nexus.

[00:30:30] Speaker 02:
So there are limits.

[00:30:33] Speaker 02:
And then on the without lawful authority, the government has said that in its trial brief it cites to statute

[00:30:46] Speaker 02:
Well, that wasn't presented to the jury.

[00:30:48] Speaker 02:
And the question is, did the jury have enough evidence?

[00:30:50] Speaker 02:
Did the government present the jury with enough evidence to make that finding?

[00:30:55] Speaker 02:
It's not the job of this court, and I don't think the court can go out and say, oh, well, we went and looked and found, and we found evidence.

[00:31:04] Speaker 02:
We found the statute.

[00:31:05] Speaker 02:
Well, they didn't produce the statute.

[00:31:08] Speaker 01:
Well, there was testimony from a special agent.

[00:31:12] Speaker 01:
There was testimony from the state.

[00:31:14] Speaker 01:
And I agree with you.

[00:31:15] Speaker 01:
It was somewhat equivocal because he couldn't cite the statute, but he said, yeah, it's a requirement.

[00:31:20] Speaker 02:
Yeah, but he didn't say.

[00:31:21] Speaker 02:
Why isn't that enough?

[00:31:22] Speaker 02:
Well, he said it's a requirement, but number one, he's an HSI agent.

[00:31:26] Speaker 02:
He's not an expert on CNMI law.

[00:31:29] Speaker 02:
This was a renewal license, and not an original license.

[00:31:34] Speaker 02:
So maybe you couldn't get an original license, but if you got an original license, maybe you could get a renewal license under the statute.

[00:31:40] Speaker 02:
We don't know.

[00:31:40] Speaker 02:
The jury didn't know that.

[00:31:43] Speaker 02:
It wasn't presented.

[00:31:46] Speaker 02:
Unless there are other questions.

[00:31:50] Speaker 03:
Thank you very much for your argument this morning.

[00:31:51] Speaker 03:
We thank both counsel, and this matter is submitted.