[00:00:02] Speaker 01: Thank you. [00:00:02] Speaker 01: Good morning again. [00:00:03] Speaker 01: Miles Pope for Samantha Tainwasher. [00:00:05] Speaker 01: And I'd like to reserve two minutes for rebuttal. [00:00:07] Speaker 03: And I would just say that I think there's going to be some interest from the panel on the phone count issue. [00:00:14] Speaker 03: So certainly take some time on that. [00:00:16] Speaker 01: I am. [00:00:17] Speaker 01: So I think I saw the court's scoping order. [00:00:19] Speaker 01: I really appreciated that. [00:00:20] Speaker 01: So in light of that, I'm jumping right to that issue. [00:00:23] Speaker 01: So failing to instruct the issue there is that the failure to instruct the jury, the commission of the underlying. [00:00:31] Speaker 01: We can start the clock. [00:00:34] Speaker 01: Bonus. [00:00:36] Speaker 01: So basically, the issue there is whether failing to instruct the jury that commission of the underlying drug felony is an element of facilitation, whether that was obvious, prejudicial error. [00:00:47] Speaker 01: I'm not seeing a ton of pushback on its being error, so I'm gonna focus on obviousness. [00:00:51] Speaker 01: I'm gonna focus on prejudice. [00:00:53] Speaker 04: Can I ask about that? [00:00:54] Speaker 04: And I mean, I think you're wise to go to prejudice, but on obviousness, is it true that [00:01:04] Speaker 04: Because we don't have any ninth circuit precedent on this, right? [00:01:09] Speaker 04: Saying that it was actually, it's constitutional error. [00:01:13] Speaker 01: That's correct. [00:01:15] Speaker 01: There's a lot from other circuits. [00:01:17] Speaker 01: Is that enough under the Plain Air standard? [00:01:20] Speaker 01: So first I would say that, and this is something that I don't think I emphasized enough in my briefing, Powell is a Ninth Circuit case, the Supreme Court case that arose from the Ninth Circuit. [00:01:29] Speaker 01: And Powell is the case where the government characterizes it as sort of passing dicta about how there appears to be uniform agreement among the circuits that this is an element. [00:01:40] Speaker 04: I guess that's my question. [00:01:43] Speaker 04: Is that enough or do we need an insert? [00:01:46] Speaker 04: It's a weird deal because we've had this issue and we've never published on it. [00:01:51] Speaker 04: Yes. [00:01:52] Speaker 04: I guess the question is, do you have to have a published opinion? [00:01:56] Speaker 01: Well, so to answer that question directly, because I also want to loop back to there might be more support in the Ninth Circuit than it first appears, but to answer that question directly, yes, no, you need to have, the uniform weight of out-of-circuit authority is enough to establish plain error. [00:02:12] Speaker 01: And, you know, I think that makes good sense. [00:02:15] Speaker 01: You said that in the Ninth Circuit? [00:02:16] Speaker 01: No, you have not said that. [00:02:18] Speaker 01: But you should. [00:02:19] Speaker 01: And I'll tell you, among other reasons, it makes good sense, but one of the main significant considerations in favor of that is that other circuits have. [00:02:29] Speaker 01: The 10th circuit has said it. [00:02:30] Speaker 00: I think eight circuits have said it. [00:02:32] Speaker 01: Quite a few circuits have said it. [00:02:35] Speaker 01: I completely agree with that. [00:02:37] Speaker 01: I highlighted the 10th circuit, but we've got exactly, I could run through more of them, but suffice it to say, there's an overwhelming weight of out-of-circuit authority on the methodological question, and there's agreement that if there's uniform weight within the... What if there's no case law? [00:02:54] Speaker 04: Can it be plain just on the statute? [00:02:58] Speaker 04: or is any court weighed in on that? [00:03:01] Speaker 01: I don't know if any court's weighed in on that, but this court has, in a related context of the guidelines, certainly said that the text of a sentencing guideline itself [00:03:13] Speaker 01: can establish plain error. [00:03:16] Speaker 01: So the logic of those decisions, which I'm sorry I don't have the citations off the top of my head, but the logic of those decisions would extend, I would think, to the statutory context. [00:03:25] Speaker 03: And certainly if the statute, for example, had an affirmative defense in the statute, and the district court refused to offer the affirmative defense, that could be plain error, because the statute says there's an affirmative defense. [00:03:35] Speaker 01: Yeah, that seems obvious to me. [00:03:37] Speaker 01: I agree. [00:03:39] Speaker 01: And I'm just going to be candid with the court. [00:03:43] Speaker 04: Those are all my questions. [00:03:44] Speaker 04: I think the bigger issue is the second one, but I was just sort of intrigued by some of these methodological issues. [00:03:52] Speaker 01: No, understood. [00:03:53] Speaker 01: And unless there are any other questions on obviousness, I will switch to prejudice. [00:03:57] Speaker 01: So with respect to sort of why... First, I just... [00:04:01] Speaker 01: short circuit, any factual dispute, agree with the government that this was not argued in closing. [00:04:07] Speaker 01: So that is true. [00:04:08] Speaker 01: Nonetheless, there are a few reasons why I think it affected my client's substantial rights that was prejudicial. [00:04:14] Speaker 01: You know, the first is that jurors are presumed to follow instructions, they're presumed to think very carefully about the case, and there's abundant reason to think in light of the government's evidentiary presentation in this case that a properly instructed jury would have concluded, look, there's just not enough here. [00:04:30] Speaker 01: Enough here for what? [00:04:31] Speaker 01: to conclude that the underlying drug felonies [00:04:35] Speaker 01: There are three different drug felonies, and that bleeds a little bit into the unanimity issue that I raised on this count, but the allegations essentially, you know, I think that if I were to plead it as the government or if I was going to try to get that instruction in there, I would say, look, you know, we're alleging that Ms. [00:04:52] Speaker 01: Tainwasher distributed or attempted to distribute or possessed with intent to distribute, based on these Facebook messages, different types of drugs. [00:05:00] Speaker 01: Right, but so with [00:05:03] Speaker 04: Possession with intent to distribute or attempted distribution, those are two of the three, right? [00:05:09] Speaker 04: It seems like the Facebook message is pretty clearly, I mean, at least as to attempt, it seems like it's overwhelmingly that this was attempt. [00:05:18] Speaker 04: I mean, how do you read these any other way? [00:05:20] Speaker 01: Well, a few different ways. [00:05:22] Speaker 01: Well, first you can read them as essentially an addict's idle drug talk, and it's very clear that there's, you know... Okay, as an addict's drug, but there's also evidence that she was a drug dealer. [00:05:33] Speaker 04: She's not just an addict, she was a drug dealer, right? [00:05:38] Speaker 01: Well, I think that is fair to say. [00:05:45] Speaker 01: That is fair to say that there was sort of atmospheric evidence, but here's another ... I mean, I have never seen the government, and you know, I've been a federal defender for quite a while before I ... It's odd. [00:05:54] Speaker 04: I haven't seen this either. [00:05:57] Speaker 04: I mean, the question is, is it plain error? [00:06:00] Speaker 04: I mean, that's always the problem. [00:06:02] Speaker 01: But then, I agree with that. [00:06:04] Speaker 01: But I think that which prong we're under matters here. [00:06:07] Speaker 01: Because at the sort of prejudice or affects substantial rights, the actual analysis is not whether it obviously affected substantial rights. [00:06:16] Speaker 01: It's whether there's a reasonable probability that a properly instructed jury would have acquitted. [00:06:22] Speaker 01: And reasonable probability this court has held is not [00:06:26] Speaker 01: really high bar to clear, it's less than preponderance of the evidence. [00:06:29] Speaker 01: So you're looking at threadbare evidence. [00:06:32] Speaker 04: That's what I'm wondering. [00:06:34] Speaker 04: I get your point. [00:06:35] Speaker 04: I think you have a stronger point on the actual distribution. [00:06:40] Speaker 04: Because the Facebook messages don't say, hey, did you like the drugs I delivered? [00:06:46] Speaker 04: So we do have the Facebook messages stopping at a certain point. [00:06:50] Speaker 04: But as to attempted distribution, [00:06:53] Speaker 04: It just seems pretty overwhelming. [00:06:56] Speaker 04: It's hard for me to imagine a juror not convicting of attempted, whether they should have. [00:07:01] Speaker 04: I mean, I'm going to have a question for the government. [00:07:04] Speaker 04: What's the point of this count at this point? [00:07:07] Speaker 04: But separate from that, it seems like it's pretty overwhelming that he did it. [00:07:13] Speaker 03: Let me just jump in here, because obviously you have possession with intent to distribute. [00:07:18] Speaker 03: But I was in AOSA for a long time, and I don't remember there being a charge of attempted [00:07:23] Speaker 03: under the narcotics statute, there is no attempt. [00:07:27] Speaker 03: So I agree with that. [00:07:28] Speaker 03: So that attempt is not going to cut it for a foam count, right? [00:07:31] Speaker 03: It has to actually be possession with intent to distribute or actual distribution. [00:07:34] Speaker 03: So I agree with that, yes. [00:07:36] Speaker 04: Okay, just the words, just one more thing. [00:07:38] Speaker 04: Okay, I thought attempt was, was attempt one of them or not? [00:07:42] Speaker 04: It's not one of them. [00:07:43] Speaker 04: It's not one of the three. [00:07:45] Speaker 01: So it was alleged in there is this like bundle of it, but I agree with that point. [00:07:52] Speaker 01: I agree with that, yes. [00:07:53] Speaker 04: Even though no one ever, the defense counsel never actually said, oh, hey, by the way, this doesn't even exist. [00:07:59] Speaker 00: So let me ask this question. [00:08:00] Speaker 00: If the jury thought they could, thought that an attempt was sufficient and it isn't a crime, then what happens? [00:08:13] Speaker 01: So, you know, I think [00:08:18] Speaker 01: sort of the way I would approach that issue in light of how the case unfolded. [00:08:23] Speaker 00: This is where the unanimity comes in, I guess. [00:08:28] Speaker 01: So that certainly implicates it. [00:08:31] Speaker 01: But I think it's a problem if the jury convicted of a crime that doesn't exist. [00:08:34] Speaker 01: That's certainly true. [00:08:37] Speaker 01: But I think, again, in light of kind of where [00:08:43] Speaker 01: sort of the core issue, which is this question of do underlying drug felonies actually count? [00:08:50] Speaker 01: Basically, do you have to plead those as an element? [00:08:52] Speaker 01: I think it just, again, goes to the prejudice analysis. [00:08:55] Speaker 01: And there's a reasonable probability that a properly instructed jury would have acquitted. [00:09:00] Speaker 04: So let's talk about possession with intent, then. [00:09:03] Speaker 04: We all agree that that is a chargeable offense. [00:09:06] Speaker 01: Yes. [00:09:09] Speaker 04: How is that different than attempt? [00:09:13] Speaker 04: I mean, I guess the argument would be, well, I mean, it's back to your same point. [00:09:18] Speaker 04: It was bluster. [00:09:20] Speaker 04: You know, I didn't really have drugs. [00:09:22] Speaker 04: I was just, you know, saying I was going to sell it, but there's no proof I actually had them. [00:09:27] Speaker 01: Yes, and, you know, we do know that she... [00:09:30] Speaker 04: did have them. [00:09:31] Speaker 04: I mean, not necessarily at that time. [00:09:33] Speaker 01: Not at that time. [00:09:34] Speaker 01: And what I would say, you know, the government, and I appreciate the rhetoric, you know, I think the rhetoric is good, like the government's, you know, it's an articulate brief, the government characterizes this as you're doing role, you're imagining that he's doing role-player fantasy, basically, and that's what [00:09:48] Speaker 01: That's what the jury would have to believe. [00:09:50] Speaker 01: That's just not true on the facts. [00:09:52] Speaker 01: If someone who's in the midst, in the grips of an addiction can have aspirations that they do not realize. [00:09:59] Speaker 01: And I've just never seen, again, to go back to an earlier point, the government seeking [00:10:06] Speaker 01: even seek to bring a charge based on sort of idle drug talk across Facebook Messenger without any independent corroboration. [00:10:14] Speaker 00: Let me ask you just a practical question that I appreciate having both of you answer. [00:10:19] Speaker 00: Given the sentence that was imposed, what would be the practical effect if we were to agree with you on this piece of the case but not on the other count? [00:10:32] Speaker 01: Well, I think that actually is more in the government's purview than mine, just because I guess the question is not so much the legal mechanism. [00:10:40] Speaker 01: The legal mechanism is very clear. [00:10:41] Speaker 01: It would be reversed and remanded, and I think for a new trial, because I didn't raise a sufficiency claim on this. [00:10:47] Speaker 01: I've raised a jury instructional error. [00:10:49] Speaker 04: You'd have to do it on the underlying claims as well? [00:10:55] Speaker 04: It would only be on this count, yes. [00:10:59] Speaker 03: I think I'll ask in a different way. [00:11:02] Speaker 03: Realistically, if these counts are thrown out, your client will get the special assessment money back. [00:11:07] Speaker 03: But there's real no effect on the sentence in this case, correct? [00:11:10] Speaker 03: That's correct. [00:11:11] Speaker 03: So does that factor into plain error? [00:11:13] Speaker 03: The fact that [00:11:15] Speaker 03: At the end of the day, it would be a refund of however many $300 or whatever it would be. [00:11:21] Speaker 03: Is that really what we're talking about here? [00:11:23] Speaker 01: Well, no, absolutely not. [00:11:24] Speaker 01: And I guess that question falls more under the fourth prong, like is it in the interest of justice to reverse for reimbursement? [00:11:30] Speaker 01: And the answer is no, because you were reversing a felony conviction. [00:11:34] Speaker 01: And that's a very serious matter. [00:11:36] Speaker 01: I understand that there's also another conviction in this case, but my client has been convicted on, in my view, plainly erroneous jury instructions of a felony drug offense. [00:11:47] Speaker 03: And I would assume that there would be also collateral consequences from certain drug offenses. [00:11:51] Speaker 03: You might lose food stamps and other federal benefits. [00:11:52] Speaker 03: Absolutely. [00:11:53] Speaker 03: That would not be the case for count one. [00:11:54] Speaker 01: I believe that is correct. [00:11:56] Speaker 01: I mean, I'm like 99% that you do not lose, that it's the controlled substance act in particular that implicates those collateral consequences. [00:12:05] Speaker 01: Yes. [00:12:08] Speaker 01: Do you want to reserve some time? [00:12:10] Speaker 01: I do, so I will go ahead. [00:12:12] Speaker 01: Well, I do, but I appreciate the... I understand where... I'm just going to briefly talk about the involuntary manslaughter because, you know, here's my perspective on that. [00:12:25] Speaker 01: I understand and appreciate trial counsel's frustration with the way this case was played, where there's the allowing the victim to be in the house for three days, and then you combine that with the March 27th to March 29th kind of timeframe, and then you couple that with the government's argument [00:12:46] Speaker 01: during closing about, you know, that really does kind of ask the jury to say like, you know, we know what happened on March 27th. [00:12:54] Speaker 01: We know that Ms. [00:12:56] Speaker 01: Tainwasher engaged in conduct that I would not disagree was reckless conduct. [00:13:01] Speaker 01: So we know that on March 27th and then we see on March 29th, you know, without much information about what happened in between the death. [00:13:08] Speaker 01: And so, you know, the combination of the way the instruction was drafted and the use of the allow and that continuing offense [00:13:16] Speaker 01: And then that argument, to me, does mislead the jury into not thinking, we need to believe that Miss Tainwasher on, at the moment that Stephen died, engaged in recklessness, or even beforehand, engaged in recklessness that was in the scope, that created the scope of the risk that caused his death. [00:13:31] Speaker 01: I could see how there'd be more of a, you know, the jury would be highly tempted to convict based on the negligence on March 27th without connecting the dots to March 29th. [00:13:42] Speaker 01: I will reserve the rest of my time, thank you. [00:13:50] Speaker 02: Good morning, Your Honors, and may it please the Court. [00:13:52] Speaker 02: My name is Michael Ellis, and I'm an Assistant United States Attorney based in Spokane, Washington. [00:13:57] Speaker 02: I was also one of two trial counsel for the United States before the District Court. [00:14:02] Speaker 02: So I will also go straight to the 843B telephone count issue, and I think the Court has highlighted a number of reasons why the intricacies of plain error review are so important when analyzing the [00:14:15] Speaker 02: 843B telephone counts. [00:14:16] Speaker 02: I'll start with the plainness or the obviousness and how this court has discussed that whether an error is sufficiently plain or obvious to trigger plain error review is the error has to be so clear cut, so obvious that a competent district court judge would avoid it without the benefit of objection from counsel. [00:14:37] Speaker 02: Here, as was noted, there is no binding precedent from this court [00:14:41] Speaker 00: That's true, but our decision in Powell implicitly, it made sense only if the completed crime had to be part of the mix on the instructions. [00:14:57] Speaker 00: Several other circuits have held that this is required. [00:15:02] Speaker 00: Nobody that I could find, no circuit court, has ever held to the contrary. [00:15:07] Speaker 00: Why isn't that plain? [00:15:11] Speaker 00: That doesn't speak to prejudice, but it certainly speaks to me of plainness. [00:15:16] Speaker 02: So two reasons to start. [00:15:18] Speaker 02: I guess one reason for each category. [00:15:20] Speaker 02: So starting with Powell and the circuit's opinion going up to the Supreme Court and then the Supreme Court's footnote in their own opinion. [00:15:28] Speaker 02: That case was not directly addressing the elements of the offense. [00:15:32] Speaker 00: It was all about inconsistency of the verdict, but it pointed in the same direction. [00:15:39] Speaker 00: it certainly doesn't do anything to undo the other circuits that have unanimously, as far as I can tell, held that this is a requirement. [00:15:50] Speaker 02: No, that's true. [00:15:50] Speaker 02: It doesn't undercut the various opinions of the other circuits in that analysis. [00:15:56] Speaker 02: But what it does do is, again, we're looking for whether this court perhaps impel making indications or inferences that perhaps that is the rule, is if that opinion [00:16:08] Speaker 02: is sufficiently clear-cut. [00:16:11] Speaker 00: Why isn't the unanimity of a number of circuits sufficient? [00:16:15] Speaker 02: And so that goes back to whether it's so clear-cut, so obvious that a competent district court judge would have caught it. [00:16:21] Speaker 02: So a district court judge in this circuit, the opinions of other circuits are in no way binding on a district court judge sitting in Yakima, Washington. [00:16:31] Speaker 02: Those opinions may be persuasive. [00:16:34] Speaker 02: The court could look to those if the court so chose for [00:16:37] Speaker 02: persuasive authority for other reasons, but they are not binding. [00:16:42] Speaker 04: And so to find that... You're saying that a district court, even in the face of eight circuit court precedent, and there's nothing in the Ninth Circuit, theoretically, a district court could look at this in the first instance and say, I'm just going to come out the other way. [00:16:58] Speaker 02: Yes. [00:16:58] Speaker 02: I mean, theoretically, a court could do that. [00:17:01] Speaker 02: That's the nature of circuit splits. [00:17:03] Speaker 02: Circuit splits can often or can be. [00:17:06] Speaker 00: Well, it can do that. [00:17:07] Speaker 00: But then the question is, looking at the wording of the statute and that unanimity, is that decision to go the other way plain error? [00:17:16] Speaker 00: Of course you can do it. [00:17:18] Speaker 00: That's what happened. [00:17:19] Speaker 02: I think what it comes back to is if a district court judge when faced with an absence of binding precedent from this court, from the Ninth Circuit, is not competent for not then engaging in a survey essentially of the opinions of other circuits that are not binding on the district court to determine if there is a consensus. [00:17:41] Speaker 00: Well, basically what you're saying is a district court doesn't have to do any legal research and that doesn't make sense to me. [00:17:50] Speaker 02: So I think they are obligated to say if this court, I think we'd be having a very different conversation if this court had as explicit an opinion concerning this issue. [00:18:01] Speaker 04: Well, and we'd also have a different issue if it had been [00:18:05] Speaker 04: I mean, you're talking about doing research on an issue that hadn't been raised. [00:18:09] Speaker 04: I mean, if this came – I'll just see if you can be candid on this question. [00:18:15] Speaker 04: If this wasn't under plain error, would you be saying there was no error here? [00:18:20] Speaker 04: No. [00:18:21] Speaker 02: I think they're – and I say this with – Thank you for your candor. [00:18:26] Speaker 02: I was one of trial counsel below, and as pointed out, trial counsel to include myself and the district court made statements outside the presence of the jury that were not consistent with that rule of the other circuits. [00:18:39] Speaker 02: I think that goes in part to why plain error review is so important here, because we are analyzing this issue under a standard of review that is very deferential to what happened, because it was not raised below. [00:18:53] Speaker 02: So we are here on plain error review. [00:18:56] Speaker 02: Again, I think to jump into prejudice here, I think this is why plain error review and the nature and purpose of plain error review is so important here. [00:19:05] Speaker 02: You get to the attempt issue. [00:19:07] Speaker 04: You charged attempt. [00:19:11] Speaker 04: Do you agree that there is no such charge? [00:19:13] Speaker 02: No, there is certainly a charge for attempt. [00:19:16] Speaker 02: So 21 United States Code 846 basically makes it a felony to conspire or attempt to commit a drug offense. [00:19:26] Speaker 02: So for example, to charge attempted distribution of controlled substances under federal law, you would charge 21 United States Code Section 846 attempting to commit a violation of 21 United States Code Section 841 [00:19:39] Speaker 02: distribution. [00:19:40] Speaker 02: So no, I do not agree that that is not an offense. [00:19:43] Speaker 02: I think it is very clearly an offense. [00:19:45] Speaker 02: It may not be an offense that is regularly before this court, but it's nonetheless a cognizable offense under the Controlled Substances Act in Title 21. [00:19:54] Speaker 02: So I think it is an offense that is chargeable, even if it may not be an offense. [00:19:59] Speaker 04: If that objection had been raised below, you would have said, no, we're going forward with the charge. [00:20:05] Speaker 02: Yeah, I think we would have stuck to our guns on that as an included felony, underlying drug felony for the 843B offense, because I think it is an offense that can be structured and committed in violation of Title 21 through 21 United States Code section 846. [00:20:22] Speaker 02: So I very much disagree with that part of the discussion. [00:20:28] Speaker 03: I've never heard of an 846 attempt charge, but I'm looking at the language of 846 and it does say attempt. [00:20:36] Speaker 03: I've never seen it charged, ever. [00:20:38] Speaker 03: Have you ever seen it charged, ever? [00:20:41] Speaker 00: Well, once. [00:20:42] Speaker 03: No, it wasn't charged in this case. [00:20:44] Speaker 02: It wasn't charged in this case. [00:20:45] Speaker 02: But you can imagine scenarios in which perhaps it would be charged, aborted drug transactions perhaps, at the last, you know, that there are situations. [00:20:53] Speaker 03: Normally you charge 846 as a conspiracy. [00:20:55] Speaker 02: That is the far, far more typical way that I have seen it charged. [00:20:58] Speaker 03: No, you're right. [00:20:59] Speaker 03: It does say it in 848. [00:21:00] Speaker 03: I stand corrected. [00:21:01] Speaker 03: I've never seen it, but it's there. [00:21:03] Speaker 02: And again, 843B criminalizes the facilitation of any other felony under those relevant subsections, which include [00:21:11] Speaker 02: that, the potential for attempting to commit an 841 violation. [00:21:15] Speaker 02: So I think it is a cognizable offense under Title 21. [00:21:20] Speaker 04: Maybe I'm getting it. [00:21:21] Speaker 04: Were you thinking about this as an . [00:21:22] Speaker 04: . [00:21:22] Speaker 04: . [00:21:22] Speaker 04: I mean, did it come up? [00:21:24] Speaker 04: I mean, it was a chart, but did it come up as attempt . [00:21:28] Speaker 04: . [00:21:28] Speaker 04: . [00:21:28] Speaker 04: I mean, was that a discussion in the case, like between counsel or with the judge? [00:21:34] Speaker 02: So I don't think anyone necessarily pick, I don't recall anyone necessarily picking at the intricacies of, when we briefing the issues before this court of the three different Facebook messages that were kind of the focus of the 843B count, it was, you know, our kind of the theory at least that two of them were certainly in the attempt and possession with intent realm. [00:21:59] Speaker 02: the ones discussing the negotiating and that sort of thing. [00:22:02] Speaker 02: And then the third, exhibit 88, the one with Ms. [00:22:05] Speaker 02: Waters, which describes Ms. [00:22:08] Speaker 02: Tainwasher sort of real-time discussing, like, where are you? [00:22:12] Speaker 02: I'm out, you know, I'm out back. [00:22:14] Speaker 02: That one [00:22:15] Speaker 02: was believed to be sufficiently close enough to justify describing it as distribution because she was describing, at least where a rational jury could find that that distribution had actually occurred because she was describing actually going to meet up to the point of I'm out back. [00:22:33] Speaker 04: So you think that distribution, you think you've got a strong case on distribution itself. [00:22:40] Speaker 02: I'm not going to say it was a ridiculously overly strong case, but I think in terms of the facilitating. [00:22:46] Speaker 04: Beyond a reasonable doubt. [00:22:47] Speaker 02: But again, it's what a rational jury could have concluded when taking all the inferences in the United States' going. [00:22:56] Speaker 00: I don't think she said she was out back. [00:22:58] Speaker 00: I thought she said she was on her way. [00:23:00] Speaker 00: But let me ask you another question about the plane error. [00:23:07] Speaker 00: The model instruction [00:23:10] Speaker 00: contains [00:23:14] Speaker 00: the court instructing the jury that they have to find that the defendant knowingly or intentionally used a specific method of communication to help bring about a specific illegal act as charged in the indictment. [00:23:34] Speaker 00: That was not how this jury was instructed. [00:23:39] Speaker 00: Does the model instruction do anything to [00:23:43] Speaker 00: demonstrate that the court should have noticed that it's mistake. [00:23:49] Speaker 02: So I think in this case not, just because the model instruction I think is clearly designed for a situation in which say count one is distribution and count two is using a phone or some other communication facility to facilitate the conduct in count one. [00:24:05] Speaker 02: The scenario that was charged here was those underlying drug felonies were not charged. [00:24:11] Speaker 02: And so it would have made sense to say. [00:24:13] Speaker 00: That would seem to me to alert the court even more to the problem. [00:24:18] Speaker 00: And again, I don't think that... What is the act that I have to put into that blank? [00:24:24] Speaker 02: And the act was what was put in by the district court, which is the underlying drug felonies, the possession with intent distribution and attempted distribution. [00:24:33] Speaker 02: So at least how that was read below was those specific illegal acts or acts was referencing the alleged drug felony under Title 21, which is what ultimately was reflected in the instruction, and that was where the three [00:24:50] Speaker 02: alleged underlying drug felonies, which, and those are underlying drug felonies, were alleged as what had to be facilitated by the use of the communications facility. [00:25:02] Speaker 02: So I think how it was read, at least, and how it still reads is this instruction is designed for a scenario that was not present before the district court, and so that's what in part led to the [00:25:12] Speaker 02: the diversions from this court's model jury instruction. [00:25:14] Speaker 02: And as the model jury instructions themselves say, they're not the be-all end-all of instructing a jury. [00:25:21] Speaker 02: They're guides. [00:25:24] Speaker 02: And in this case, they didn't fit the facts. [00:25:25] Speaker 00: In the standard case, that's where count one is the drug offense. [00:25:30] Speaker 00: If the jury finds the person not guilty, then they would necessarily find them not guilty under this count as well. [00:25:40] Speaker 02: Except I think that's what Powell is about, where they did exactly the opposite of that. [00:25:47] Speaker 02: They found the person not guilty of the substance, I believe, and guilty of the phone count. [00:25:57] Speaker 02: But I think, again, in this case, it's [00:26:01] Speaker 02: The model during instruction was of less use than in other cases because it didn't match how the allegations were charged in the indictment. [00:26:10] Speaker 02: I think that the main, the strongest point, again, candidly, the strongest point for the government on plain error review is [00:26:16] Speaker 02: In Cotton, the Supreme Court uses essentially uncontroverted or essentially uncontested as a very relevant aspect of prejudice under plain error review. [00:26:27] Speaker 02: And here, we're not in even essentially uncontested land. [00:26:30] Speaker 02: We're in entirely uncontested land. [00:26:34] Speaker 02: This count, the messages were not raised by defense counsel or mentioned by defense counsel during closing. [00:26:40] Speaker 02: This count was not mentioned at all. [00:26:43] Speaker 02: Ms. [00:26:43] Speaker 02: Tamewasher did not ask the jury to even acquit her of this count. [00:26:47] Speaker 02: It was not mentioned at all. [00:26:49] Speaker 02: I think the government's position would be a lot weaker if there was even one passing mention, if there was even a throwaway comment at the end. [00:26:56] Speaker 02: and you should acquit Ms. [00:26:57] Speaker 02: Tamwasher of all charges. [00:26:59] Speaker 02: And even if that had been uttered, the government's position here on prejudice would be much weaker. [00:27:04] Speaker 04: But we are in a world in which... I agree with you, counsel, but it... I mean, in some ways it almost goes to the point of no one was really focused on this because, I mean, as Judge Graber's pointing out, I mean, you're right as... I think you're right. [00:27:16] Speaker 04: As a technical matter, you could have gotten this, and I'm assuming you brought it... [00:27:20] Speaker 04: sort of as a belt and suspenders approach to the case, which you're entitled to do. [00:27:25] Speaker 04: But you got the belt. [00:27:27] Speaker 04: So do you need the suspenders, I guess is the question. [00:27:29] Speaker 04: And maybe there's nothing to do about that now. [00:27:35] Speaker 04: But I think that there was sort of a presumption that, hey, we're all here to figure out whether she's guilty of this underlying crime. [00:27:44] Speaker 04: And she was. [00:27:46] Speaker 02: And I think, obviously, the crux of the case was not the phone counts. [00:27:52] Speaker 02: The crux of the case was the death of the 15-month-old. [00:27:55] Speaker 02: But nonetheless, Ms. [00:27:57] Speaker 02: Tamewasher was convicted of the phone count. [00:27:59] Speaker 02: And we are here on plain error review. [00:28:01] Speaker 02: And I do think there are a number of ways, either through the obviousness or lack thereof of the error or the prejudice. [00:28:07] Speaker 04: I guess what I'm wondering, there's prosecutorial discretion on the front end. [00:28:12] Speaker 04: Is there prosecutorial discretion on the back end? [00:28:15] Speaker 04: I don't know the answer to that question as well. [00:28:17] Speaker 02: I can say with my remaining time that in terms of this court's question about the practical consequences of this, I agree with counsel. [00:28:24] Speaker 02: I think there are practical consequences that do justify this court not just brushing this off as the issues raised. [00:28:31] Speaker 02: It's only $100 special assessment, but that is still a penalty. [00:28:36] Speaker 02: And I think counsel's right that those other government benefits issues could come in as well. [00:28:42] Speaker 02: So I do think there are practical issues. [00:28:44] Speaker 02: And I think the reality would be if this court did find that there was a plain error, the government would have a choice on remand as to whether to. [00:28:54] Speaker 04: But you don't have a choice before that? [00:28:57] Speaker 02: I mean, hypothetically, we have a choice. [00:29:00] Speaker 02: I personally do not have a choice before then. [00:29:02] Speaker 02: I think to do what the court is suggesting is a choice beyond my... [00:29:09] Speaker 00: Above your pay grade. [00:29:10] Speaker 02: Above my pay grade, exactly. [00:29:12] Speaker 02: So I'm here defending what happened before the district court and defending the jury's verdict and in a posture that is very sympathetic to that verdict on plain error review. [00:29:24] Speaker 02: So unless the court has further questions for me, thank you. [00:29:27] Speaker 03: Thank you very much. [00:29:30] Speaker 01: Thank you, and I, too, was bollocked up by the actual practice under 846. [00:29:34] Speaker 01: I double checked. [00:29:35] Speaker 01: I didn't actually brief that attempt is not controlled substance offense, so I'm happy to say that that's true, because I agree that it is. [00:29:43] Speaker 01: But I think prejudice is the core here. [00:29:45] Speaker 01: Unless the court has questions, I think the model jury instruction point on obviousness is well taken. [00:29:50] Speaker 01: And just to emphasize, the fact that the Ninth Circuit has presumed that [00:29:57] Speaker 01: substantive counts will be charged in connection with a facilitation charge. [00:30:02] Speaker 01: To me, puts a court on notice that that's how this crime is structured. [00:30:07] Speaker 01: And then you can immediately see the Supreme Court has weighed in and all of the circuits have weighed in. [00:30:11] Speaker 01: So that seems like that's obviousness. [00:30:14] Speaker 01: On prejudice, you know, if [00:30:17] Speaker 01: I guess another way to articulate it is a properly instructed jury. [00:30:22] Speaker 01: You could imagine deliberations going like this in the jury room. [00:30:25] Speaker 01: They could say, look, we heard nothing from any witness who Ms. [00:30:30] Speaker 01: Tainwasher was alleged to have distributed drugs to about whether she showed up, about whether they received drugs from her, about whether we lost [00:30:43] Speaker 01: basically those factors about whether it's happened in the past. [00:30:47] Speaker 01: We heard nothing whatsoever. [00:30:49] Speaker 01: We didn't see a direct confession from Ms. [00:30:51] Speaker 01: Tainwasher either. [00:30:52] Speaker 01: All we have are these Facebook message exchanges, and it's just not enough. [00:30:57] Speaker 01: And so I think in light of the real impact that this conviction can have on Ms. [00:31:02] Speaker 01: Tainwasher's life going forward as she tries to rebuild from this terrible tragedy, it is worth reversing, and I would ask the court to do so. [00:31:12] Speaker 03: All right, thank you, counsel. [00:31:13] Speaker 03: I want to thank both of you for your briefing and argument. [00:31:15] Speaker 03: Mr. Pope, how many cases did you have this week? [00:31:18] Speaker 03: Not just argued, just briefed on this calendar? [00:31:21] Speaker 01: Well, yeah, three. [00:31:23] Speaker 03: Three. [00:31:24] Speaker 03: Anyway, you've done a very good job on all the cases, so I want to thank you very much. [00:31:27] Speaker 03: You've been a repeat player, and you've been a pleasure to have before us this week. [00:31:30] Speaker 01: It's been a delight. [00:31:32] Speaker 01: Thank you so much. [00:31:32] Speaker 03: Thank you. [00:31:33] Speaker 03: All right, this matter is submitted.