[00:00:08] Speaker 00:
Good morning, Your Honors. Catherine Young from the Federal Public Defender's Office for Appellant Patrick O'Reilly.

[00:00:15] Speaker 00:
I will reserve five minutes of my time for rebuttal, and I'll try to watch the clock. All right. Mr. O'Reilly is challenging the district court's findings that he violated conditions of supervision, and he's also challenging the sentence imposed for those alleged violations. Now, the first violation I'd like to turn to today is Allegation 5.

[00:00:34] Speaker 00:
which alleges that having been ordered by the court to not possess a firearm, ammunition, destructive device, or any other dangerous weapon, on December 5, 2024, Patrick Michael O'Reilly entered the Los Angeles Federal Building in possession of an illegal switchblade.

[00:00:51] Speaker 00:
An argument here is that the government failed to prove that Mr. O'Reilly possessed an illegal switchblade. We've got images of the knives that establish that they're not illegal switchblades. At the evidentiary hearing, the government produced no evidence that either of the knives is an illegal switchblade.

[00:01:07] Speaker 02:
Is that the question, though? I mean, is it not? Or is the question, was this a dangerous weapon under the terms of his release conditions?

[00:01:17] Speaker 00:
Actually, Your Honor, the government does argue in its answering brief that it doesn't have to prove that it's an illegal switchblade. But that's a factual finding made by the district court, that he entered the federal building in possession of an illegal switchblade. So I don't see how the district court can make that factual finding if, in fact, the government now concedes it's not a switchblade. And we proved at the evidentiary hearing it wasn't a switchblade. We've cited law in the briefs that show it's not a switchblade. You've got the pictures of them that shows that it doesn't have the mechanics of a switchblade. So there's no dispute that there wasn't a switchblade, but there's a clear factual finding by the district court that he entered the federal building possessing a switchblade, which he clearly did not.

[00:01:57] Speaker 00:
And under those circumstances, I don't see how the allegation can stand.

[00:02:00] Speaker 04:
I guess the underlying question that interests me is the one Judge Brass asked, which is in the unusual world of probation revocations, The charging document, do you have any case that tells us that the charging document is what's material? In other words, it looks like 3583 says what's relevant is what the condition was. Here, no dangerous weapon. So in a way, and I'm just asking you legally, Here it was the probation officer. Sometimes it's the U.S. Attorney's Office. They write the charging document. But why is it relevant what they say in it?

[00:02:31] Speaker 04:
How does that have anything to do? Does that restrict whether or not your client violated a condition the court imposed? Do you understand my question?

[00:02:37] Speaker 00:
I do understand your question. I think there's a Perez case cited in the brief that says,

[00:02:41] Speaker 04:
Right, but that's dicta. It does say exactly what you're saying, so that's a good answer, but the case was about evidentiary sufficiency. It didn't say, oh, the government's got to prove what it charges. What's the case that says the government has to prove what it charges if they add surplusage? Oh, it's an illegal switchblade, or it's a switchblade that does or doesn't open. Do they have to prove what they allege?

[00:03:03] Speaker 00:
I think I do. I don't think I have a case in the brief to that effect. I think the principles and the rules of charging instruments and specifically in supervision require the government.

[00:03:13] Speaker 04:
But there's no grand jury involved. So variances and constructive amendments, that world of protection doesn't apply. We're looking at 3583, and all it says is was the condition violated.

[00:03:24] Speaker 00:
But they have to prove how the condition was violated.

[00:03:26] Speaker 04:
Yes.

[00:03:27] Speaker 00:
And here we've got two allegations with respect to the entrance into the federal building. One's a pocket knife, one's a switchblade. So the government is notifying Mr. O'Reilly that he's going to be asked to defend against an allegation of a switchblade. And I think due process requires that they prove that allegation.

[00:03:44] Speaker 02:
What would be the remedy then? I mean, if you're right, what would be the remedy? That the charging document would have to be revised and this would go back to consider whether these are dangerous weapons?

[00:03:56] Speaker 00:
I think that allegation would have to be vacated. Because the government now concedes they did not prove it's an illegal switchblade.

[00:04:04] Speaker 01:
Well, the petition itself alleges that he violated the condition of not possessing a dangerous weapon, right? So had they not further specified that it was, in fact, an illegal switchblade, it wouldn't be a problem, even under this petition.

[00:04:20] Speaker 00:
Well, I think then you might have a problem with, is he receiving adequate notice of what he's alleged to have done that day?

[00:04:25] Speaker 02:
Is that really a question, though? I mean...

[00:04:29] Speaker 02:
It seems like he has adequate notice of what he came into the federal building with two knives. He's on notice of that. I mean, I hear you. There could be a notice problem. Is there one here?

[00:04:42] Speaker 00:
Well, I think there is because especially when you've got them separate into two allegations. I mean, defense counsel, when she's approaching the hearing facing an allegation of a switchblade, is prepared to controvert the fact that it's not a switchblade. And then at the last minute, with respect to allegation six, we argue there's a due process violation. Because at the last minute, the court adds a new allegation that there's an illegal pocket knife. I think recognizing that there's a sufficiency problem.

[00:05:06] Speaker 04:
If he was asked to come in the federal building and he had a gun, would he be able to defend that it had its safety on?

[00:05:13] Speaker 00:
I don't think so.

[00:05:15] Speaker 04:
In other words, isn't that similar? Oh, this switchblade actually mechanically doesn't open. Isn't that similar?

[00:05:24] Speaker 00:
It might be, but I think that's not the fact here. I mean, he was alleged to have possessed a switchblade.

[00:05:29] Speaker 04:
But knives are dangerous weapons, broadly speaking?

[00:05:31] Speaker 00:
Well, I know the government does cite cases to that effect, but I think that's kind of an overreach. Because obviously, just saying a knife is a dangerous weapon, there's millions of different kinds of knives.

[00:05:42] Speaker 02:
Right, but I think the district court was fair in saying these really weren't butter knives.

[00:05:47] Speaker 00:
No, but I think everyone was assuming that they were dangerous weapons. And the probation officer testified he's entitled to have pocket knives on supervision. And in fact, you know, in the course of preparing for this, like some substantial percentage of the population carries pocket knives. They're not inherently dangerous weapons. And he was entitled to have them outside and wander around outside with them. The probation officer testified to that. He was entitled to have pocket knives. So it becomes an issue when he enters the federal building where there's an elevated requirement that you can't have a dangerous weapon.

[00:06:20] Speaker 00:
And so then the question would be, as far as we're concerned, if the pocket knife is a dangerous weapon.

[00:06:27] Speaker 00:
And did he enter voluntarily because he was only under the direction of his probation officer that he entered the federal building? So I think there's another question. If you want me to move on to allegation six, which is regarding the pocket knife, I will. Have we covered the switchblade issue or do we need further discussion on that?

[00:06:45] Speaker 04:
Your argument is it wasn't shown to be illegal or it wasn't even shown mechanically to work.

[00:06:51] Speaker 00:
It's not a switchblade.

[00:06:53] Speaker 04:
But therefore you have to win that the government has to prove what it charged.

[00:06:59] Speaker 00:
That's what my position is.

[00:07:01] Speaker 04:
And you would agree that...

[00:07:03] Speaker 04:
regardless of this discussion about whether the government proved what it charged, it was a violation of the condition in terms of just being a dangerous weapon, or you would not agree with that?

[00:07:12] Speaker 00:
No, I would not agree with that.

[00:07:13] Speaker 04:
Okay, all right.

[00:07:14] Speaker 00:
And if you want, that I think is relevant to Allegation 6, which I'll move on to. Allegation 6, we have two challenges to. One is the due process nature of it, because in the middle of the evidentiary hearing, when defense counsel was on notice that Mr. O'Reilly was being charged with possession of a switchblade, all of a sudden an allegation of possession of a pocket knife was added. And we argue that it was a due process violation because he didn't receive advance notice of that.

[00:07:42] Speaker 04:
The Rule 32.1 just says written notice.

[00:07:45] Speaker 00:
I know. It does say notice.

[00:07:47] Speaker 04:
Is there any case that says you have to do advance?

[00:07:49] Speaker 00:
Well, I was looking for that. Me too. Because you would think that notice implies advance notice. It's not notice if you enhance something.

[00:07:55] Speaker 04:
Yeah, janks is required, and that's only required when the witness testifies. So it could all just be happening right in the middle of it. These revocation hearings combine the proof plus the sentencing. It's all just a big jumble.

[00:08:06] Speaker 00:
Yes, but I think that even then notice is required. And notice doesn't really mean anything if it's handed as the witness is walking up to the witness stand. I mean, in this case, the purpose of notice is to give someone notice of what's being charged so they can prepare the defense to it. And maybe if you're alleging that a pocket knife is inherently dangerous, she would want to research pocket knives or what he was allowed to do with them.

[00:08:27] Speaker 04:
I agree this is reviewed for plain error. It's an interesting question, but it's problematic. If he had an initial appearance, he had a detention hearing, he had multiple revocations, This gentleman knew there were two knives. Fair to say? He has counsel repeatedly. He's in front of federal judicial officers.

[00:08:43] Speaker 00:
He knew that there were two knives, but until the middle of the evidentiary hearing, he understood he was being charged with switchblades, which they clearly are not. I'm sorry.

[00:08:52] Speaker 01:
Was there prejudice resulting from that?

[00:08:55] Speaker 00:
Well, I think there's prejudice because had defense counsel had more time, she could have had a more robust defense.

[00:09:00] Speaker 01:
Counsel asked for more time and was denied?

[00:09:02] Speaker 00:
Well, the district court said, and there had been a previous request for more time on another instance, which the district court had denied. In this case, the district court said, I'll give you a few minutes to talk with your clients if you want before we proceed with the evidentiary hearings. So I think defense counsel felt perhaps that asking for more time would be futile. But the district court did make clear that they were proceeding with the evidentiary hearings with only a few minutes for preparation. So I would argue that an objection was not required in this circumstance.

[00:09:35] Speaker 00:
So we argued that there wasn't a due process protection here. But also, we're arguing that these pocket knives were not necessarily dangerous weapons. Because the probation officer testified that he was allowed to have pocket knives on supervision. He, when he approached the federal building, did not intend to go outside, inside the federal building. He intended to meet the probation officer and to conduct their business outside the federal building because he had a previous difficulty, since he's deaf, following the instructions of the security inside, and he'd had the difficulty.

[00:10:05] Speaker 00:
So he didn't want to go inside. He assumed they were going to do their business outside the building. She didn't tell him that she was going to direct him to go inside the building. because she wanted to arrest him for the Home Depot incident. So he assumed he wasn't going to the federal building. He's carrying all his possessions because he's in a hotel. And so our position is he only went into the federal building because she directed him to do so, and he always followed her directions. That's what even she agreed to. So he walked over the threshold and then all of a sudden something that was innocent outside became potentially problematic.

[00:10:39] Speaker 00:
So we would argue that pocket knives are not inherently dangerous. He's allowed to possess them. The only thing that made this one difficult was crossing the threshold of the federal building. But that doesn't relieve the government of its obligation to prove it was a dangerous weapon.

[00:10:53] Speaker 04:
There's a little irony, I guess. He gets violated when he goes in something, and then he gets violated when he gets out of the Home Depot. His problem is going in and out of places he shouldn't go.

[00:11:02] Speaker 00:
Well, I think in this problem it is unfortunate that it was because he was so determined to follow the instructions of the probation officer that something completely innocent became problematic. But I would argue that nonetheless the government still has an obligation to prove that it's a dangerous weapon. And it hasn't done so. I don't even think it's actually proved the length of the blade because there was only testimony from Castillo-Lopez saying, but someone else told him it was four inches.

[00:11:27] Speaker 03:
I thought there was a photo in the record.

[00:11:29] Speaker 00:
There is a photo, but there's nothing in that photo, like a ruler or something, that can give us a measurement of what it is.

[00:11:35] Speaker 02:
What's really the relevance of him entering the building other than that's where this was discovered, right? He's not allowed to have a dangerous weapon anywhere.

[00:11:44] Speaker 00:
Well, that kind of begs the question, because is this a dangerous weapon? The probation officer testified he's allowed to have pocket knives.

[00:11:51] Speaker 02:
Right, but I guess you're making the point that he was not sure he was going into the building, which may be true. And I'm asking myself, is that relevant to whether this condition was violated?

[00:12:04] Speaker 00:
I think what makes it relevant is that there are elevated requirements inside the federal building, which the government is trying to import into this case, even though they haven't charged him with violating those requirements, and they can't because he wasn't on notice. One of the elements of violating that law of bringing a dangerous weapon into a federal building is conspicuous notice being posted, and they haven't met that element. but they're trying to import the additional elements of what you can't bring into a federal building into the fact that he possessed pocket knives.

[00:12:35] Speaker 00:
And we're arguing that shouldn't be done, but in any event, they haven't proved.

[00:12:38] Speaker 04:
How damaging to the law would it be if we ruled that any knife is a dangerous weapon, leaving it up to probationees to move to modify the conditions if they need their Swiss Army knife, for example? How bad would that be inconsistent with law if we just said... As a blanket rule, if you're prohibited from a dangerous weapon, that means any knife.

[00:12:59] Speaker 00:
Well, I think even in the federal building, the... No, I'm just talking about out in society.

[00:13:04] Speaker 04:
You just can't have a knife. I guess you'd run into problems, how do I eat?

[00:13:07] Speaker 00:
Yeah, I mean, I think that's a problem. But I think even in the federal building, a dangerous pocket knife under two and a half inches is specifically accepted from the definition of dangerous weapons. That's why I would say pocket knives are not inherently dangerous. Even though I think it's 18, 830, or 930, there's a definition of dangerous weapons. A pocket knife under 2 1⁄2 inches is specifically accepted from that definition. So we would argue if you have something over 2 1⁄2 inches, which we're saying hasn't been proved here, you would have to prove it's a dangerous weapon.

[00:13:38] Speaker 00:
But with respect to 2 1⁄2 inches, it's absolutely categorically not a dangerous weapon.

[00:13:42] Speaker 01:
I know you wanted to save a little bit of time. Okay, thank you.

[00:13:45] Speaker 03:
Oh, this is save time. I forget. I always forget. I thought you were still on your principal time.

[00:14:05] Speaker 05:
Good morning, Your Honors. May I please the court? James Santiago, appearing on behalf of the United States of America.

[00:14:12] Speaker 05:
The supervised release evidentiary and sentencing hearing was fair, thorough, and the defense had a full opportunity to present its arguments regarding the evidence and the sentence.

[00:14:24] Speaker 05:
But the district court rejected those arguments and found defendant in violation of multiple conditions of supervised release, and the district court should be affirmed. Now focusing, the previous discussion was primarily about the knives. That's what really the focus has been on today.

[00:14:40] Speaker 04:
Well, my focus is much more what I think could be very consequential legal questions. So there are two. One is under Rule 32.1, when do you have to give notice? When does the government think is the latest moment they can say we've got something else we want to prove? So the notice question is one.

[00:14:59] Speaker 04:
And then the other one is under 3583, Are the charging instruments, whether it comes from probation or the U.S. Attorney's Office, is it irrelevant what the government says it's going to prove?

[00:15:11] Speaker 04:
Those are my two questions. Are we really, no matter what the government writes, and the guy comes into court preparing to defend, the government writes, oh, you know, you've got a dangerous weapon on this day. It's a knife. They think it's a knife. Then you walk into court and the government says, well, actually, when you were arrested, you had a gun. That's a dangerous weapon, too. Both are violations of the condition. Get ready to defend the latter.

[00:15:33] Speaker 05:
Yes, Your Honor. So addressing your first point, 32.1, when is sufficient notice?

[00:15:39] Speaker 05:
I'm not sure what the exact right line is, but it certainly wasn't crossed here.

[00:15:43] Speaker 04:
I'll admit to you that I don't think it was because of the multiple hearings. I'm just wondering if the government has, researching the case law, told us when's the latest moment the government can say to a defendant as they walk into a hearing, here's what you have to defend against.

[00:16:00] Speaker 05:
I'm not aware of anything specifically on point, Your Honor. I think it was the Tam case talked about some particularity regarding the petition. But in this case – In this case, okay.

[00:16:08] Speaker 04:
Yeah, I mean – I understand. I don't mean to ruin it, but I understand. In this case, it does seem like he knew throughout he had counsel. So what about the bigger question, the second one? Can the government overcharge and underprove?

[00:16:19] Speaker 05:
Well, I mean, in cases specifically regarding supervised release violations, here the United States Probations Office presents a violation document, and there's two. There's the original one with, I believe it was three violations, and then a second one with the violations four and five. And at the hearing, it's the sixth one. And conceivably, the government was caught off guard. The defendant was surprised by that. But the court was the one that raised that and confirmed with both parties, like, hey, The fifth allegation that was originally two knives that was alleged in the violation report, it's now split up for some reason.

[00:16:55] Speaker 04:
My concern is not the due process one. My concern is just what I said, which is, Ken, is it irrelevant what the allegation is? Because all that we look to is the underlying condition.

[00:17:09] Speaker 05:
No, Your Honor, I think you do have to look at the allegation and what mattered for the allegation here.

[00:17:14] Speaker 04:
Now that we look at it, the government's got to prove to a preponderance what was alleged. So you're accepting you had to prove an illegal switchblade?

[00:17:22] Speaker 05:
Not necessarily, Your Honor. The government had to prove that it was possession of a dangerous weapon because that is the condition of supervision.

[00:17:28] Speaker 04:
But that's what I just asked you. Yes. That means it doesn't matter what probation put in the original or the amended petition. It just means we go back to the condition. Is that your position?

[00:17:40] Speaker 05:
Not necessarily, Your Honor, because I think depending – the defendant does deserve notice about what is going to actually be litigated. Here, in this specific instance, I do not think it matters whether or not it included the condition a switchblade knife or a pocket knife. Those were just modifiers to what the conduct really was. Was it a dangerous weapon? And in this instance, there was no harm with the way the allegations were written. The condition, as you pointed out, Your Honor, is...

[00:18:11] Speaker 05:
Defendant is not allowed to have a dangerous weapon. And the debate was, hey, is this a switchblade knife? That was not proved. There was no specific testimony. The government could seize that regarding which knife was the switchblade, which knife was the pocket knife. But the photograph speaks for itself. These were two dangerous weapons that were obvious to anyone. One being at least four inches, and there was testimony regarding that. One of the knives having shark teeth on it, and the other with a skull with an American red, white, and blue colors on it.

[00:18:42] Speaker 05:
These are not butter knives, and these are not box cutters, something that a vendor would have. So given what is here before us in this case, Your Honor, the knives...

[00:18:53] Speaker 05:
Yes, they are dangerous weapons, and it was enough that identified that there was a knife. It was sufficient. Dangerous weapons, well, what could be a dangerous weapon? A vehicle could be a dangerous weapon, for example.

[00:19:06] Speaker 04:
So it's just possession of. It doesn't matter in the federal building.

[00:19:09] Speaker 05:
It does not matter.

[00:19:10] Speaker 04:
Okay, so I don't mean to be sarcastic, but then is he in violation at dinner when he's eating using a knife utensil?

[00:19:18] Speaker 05:
Not necessarily, Your Honor, and I appreciate the argument because, I mean, looking at the totality of circumstances, the court is in the best position to evaluate based on the violation report, the testimony it saw, about here are photographs of two dangerous weapons. Just looking at them, these are dangerous weapons. They are obviously not butter knives. They are obviously not box cutters. And what's alleged is that there's a dangerous weapon. Okay, it was a dangerous weapon that was either a switchblade or a pocket knife. which is which it doesn't matter in this instance.

[00:19:49] Speaker 05:
The fact is he did have two knives, and it is part of the consideration that it was in a federal building. He was not charged specifically with a crime regarding these two knives. It was just a violation of the supervised release condition, and the case law says there doesn't have to be a conviction, there doesn't have to be a charged crime, just a violation. And that ties into the fact that the violation of the psychological evaluation violation That's not a crime either.

[00:20:16] Speaker 04:
So I'm not sure if that's necessarily addressing your question, Your Honor, but... I'm just thinking, you know, if you're in the world of original indictments and the government puts a speaking indictment and it alleges, it's bound to prove it. It can't vary from that. nor can it constructively amend it. That's the world of sort of Fifth Amendment protections. I'm a little baffled. I'm just honestly inquiring, in the world of revocations, do all we do is look back, no matter what the government writes, and they come in prepared to defend, oh, suddenly they think, it's not going to be so easy to prove these illegal switchblades, these pocket knives, but low and bold, when we arrested him, he had a gun.

[00:20:53] Speaker 04:
Now we're just going to go on the gun as a dangerous weapon.

[00:20:56] Speaker 01:
Or would that be too much of a variance that it triggers notice issues?

[00:21:02] Speaker 05:
It really does, and I hate to say this, it does depend, Your Honor, on each specific situation. I mean, here the probation officer is responding. She already planned an arrest on three other violations. He shows up for that arrest, and then, lo and behold, there's two additional violations. Now, in the charging document here, Supervisor Lee, so not necessarily the same as an indictment or something that was before a grand jury, something that was written typically by the probation office, and here in this case amended at the hearing. But there was enough in this that the defense was able to prepare and present an argument, both at the initial appearance, at the preliminary hearing, where this was argued substantially regarding whether or not it was a switchblade, and even the magistrate judge says, like, why are we even talking about this?

[00:21:48] Speaker 05:
It's the fact that he possessed dangerous weapons.

[00:21:50] Speaker 02:
Why did it say switchblade?

[00:21:53] Speaker 05:
I'm not aware of that, Your Honor.

[00:21:56] Speaker 05:
That's the way it was drafted, and...

[00:21:59] Speaker 04:
It's a little bait and switch, though, right? You allege something sort of strange in a legal switchblade. So they come in prepared to defend against that. And you say, well, we actually don't have to prove anything we said because it's just a dangerous weapon.

[00:22:13] Speaker 05:
So, Your Honor, both the government and defense counsel were admittedly caught off guard at the evidentiary hearing regarding the fact that it was actually two violations that the probation office had split into two.

[00:22:30] Speaker 04:
Do you know from your U.S. attorney's office, do you never file the motions to revoke? Is it always the probation office?

[00:22:36] Speaker 05:
I can't speak for blanket, but in this case, Occasion, Your Honor. It was. It was the probation officers that filed these to answer your question.

[00:22:47] Speaker 04:
What about the pocket knife? Do you agree your own probation officer, I shouldn't say yours, works for the judiciary, the probation officer testified he could have it, he could possess it under the conditions, just not in a federal building? That's a bit of a wrinkle, isn't it?

[00:23:02] Speaker 05:
Yes, Your Honor. I don't remember that specific exact testimony.

[00:23:04] Speaker 04:
Well, it's in the brief. That's sort of important. Did the probation – do you disagree what she said? The probation officer said he could have a pocket knife consistent with his conditions, only not if he goes in the building. Yes or no? Do you agree with that as a factual point? Yes, Your Honor. Yes, Your Honor. So that's a problem here because she then says you go in, so she sort of violates him.

[00:23:24] Speaker 05:
So – But I think looking at the totality of what unfolded that morning, they weren't preparing to make these arrests regarding pocket knives. What happened was he goes through security. They find one knife. The arrest doesn't go as planned. He's arrested prematurely by the security services at the front of the building. Bring him upstairs. And it was only then, on a search of his person, another search at this point, they'd already done a search down at the front, that they find he's in possession of a second knife. So here, just looking at the facts and what came out, this wasn't a butter knife.

[00:24:00] Speaker 04:
It was not a pocket knife. It's just a knife that you put in your pocket. What is, again, I don't know.

[00:24:07] Speaker 05:
What is a pocket knife? It's not very clear, Your Honor. I mean, I know the defense counsel cited the statute regarding there's two and a half inches is the threshold for possession of a dangerous weapon, which is a crime, which was not charged here.

[00:24:22] Speaker 05:
The other statutes that defense counsel cites in this brief are from a chapter regarding the postal service and another from trade and commerce. Not necessarily on point, but even looking at the sentencing guidelines, the definitions aren't necessarily the most helpful in the commentary. It's obvious what a firearm is and ammunition is. Dangerous weapon, that is open to some level of interpretation. But here, using its common sense, I think the district court made the appropriate distinction that these were, in fact, dangerous weapons just from looking at them. And, yes, it is a wrinkle like you identified that, yes, there's this other issue.

[00:24:56] Speaker 05:
It was brought into a federal building, but that wasn't even necessarily charged. On the state, he possessed these two weapons. That's just another fact that came out of where it was at.

[00:25:11] Speaker 01:
Council said that it's problematic in this particular case because the district court made a specific finding that it was, in fact, an illegal switchblade. And if the government hasn't proven that, is that a problem in light of the district court's finding that this falls within the dangerous weapons prohibition?

[00:25:28] Speaker 05:
I don't think I understood your first part, Your Honor.

[00:25:31] Speaker 01:
Well, council is saying that there was a specific factual finding by the district court that he, in fact, possessed an illegal switchblade.

[00:25:40] Speaker 05:
Right.

[00:25:40] Speaker 01:
You're saying it's irrelevant whether the government eventually proved that up or not. Is it a problem that there's a specific finding of a switchblade possessed by the defendant here?

[00:25:53] Speaker 05:
There could be, Your Honor.

[00:25:54] Speaker 01:
Even though the district court also made the finding that he violated the condition of not possessing a dangerous weapon.

[00:26:01] Speaker 05:
There could be an issue with that, Your Honor. I mean, there was no testimony specifically, this is the switchblade, this is the pocket knife. The only evidence regarding this was the length. They found a four-inch knife when he went through security, as well as the photograph. That's conceivably all there is regarding there. So the district court, looking at everything it had seen, still made the decision that the evidence was overwhelming that these were dangerous weapons and that they were not butter knives. That's what's in the transcript, Your Honor. So there really wasn't much more beyond that.

[00:26:32] Speaker 05:
It could be an issue, but here there's nothing that really does affect the fundamental fairness of the proceeding. Yes, he had notice with the supervised release violation reports that he was in possession of two knives. Defense counsel had known all along, even going back to the preliminary hearing where they first argued this issue with the switchblades. It was only at the evidentiary hearing where the issue comes up, is it two different ones? Is there sufficient notice? But, Your Honor, Everybody was ready to proceed on that day.

[00:27:02] Speaker 05:
The probation officer, the court, which is the party that actually raises this issue, the two parties, and defense counsel, after they sat down and read it, and she went over it with her client.

[00:27:14] Speaker 05:
Looking at everything, yes, there could be a potential issue regarding that, whether or not it is, which is the switchblade, which is the pocket knife. But at the end of the day, it doesn't make a difference because nothing affected the fundamental fairness or the integrity of the court regarding this issue with the knives.

[00:27:35] Speaker 04:
Quickly on the grand theft.

[00:27:37] Speaker 05:
Yes, Your Honor.

[00:27:37] Speaker 04:
What do you understand their allegation to be as to factual insufficiency? It's a C-enter problem. He says the Home Depot manager told him he didn't have to pay, or he says I needed to go out and check my phone and then I was going to come back in and pay, or is it just mental distress, didn't really understand what I was doing?

[00:27:56] Speaker 05:
I think it's really the third element under the state law regarding his intent. What did he intend to deprive Home Depot of? There was no testimony and there was no evidence regarding his mental state at the time. There's the psychological evaluation that comes subsequent to that. So really the issue is, looking at everything, did he have the intent? But the government is not required to prove a crime. The only issue is that he was arrested for grand theft. And as the district court said, the evidence was overwhelming.

[00:28:26] Speaker 05:
The evidence was from two percipient witnesses, one of them primarily being the loss prevention officer, looking at everything that happened today. He's watching him for over an hour. He's seeing the types of items he's putting in his shopping cart. They're not just random items. They're top stock items with a high dollar value that are some of the ones that are most stolen. He's wearing a contractor's vest. He's telling everyone he's a vendor for over an hour. He pays for some items, but not all items. And this is in the government's brief. His shopping cart is overflowing.

[00:28:58] Speaker 05:
There's approximately, I think it's at least 40 different items and approximately 70 total when there's multiple types of specific items. I see I'm over your arm. May I proceed?

[00:29:09] Speaker 01:
Yes, please. Okay.

[00:29:10] Speaker 05:
Wrap it up, please. And $1,300 total. So the fact that he paid for some, took it off the property, and was on the street, all that in light of, I think, specifically the Loma Ioma case, that was sufficient.

[00:29:25] Speaker 01:
All right. Thank you, counsel.

[00:29:26] Speaker 05:
Thank you, Your Honor. The government submits. Thank you.

[00:29:36] Speaker 00:
Thank you. The first issue I want to turn to is Judge Higginson's comment about how the line of due process wasn't crossed here because there were multiple hearings. And I just want to emphasize, up until the moment in the middle of the evidentiary hearing, defense counsel was only on notice that he was being charged with an illegal switchblade. And there's evidence in the record that she had researched that, that she had a lot of evidence it wasn't a switchblade. That's what she was prepared to controvert. And the rug was pulled out from under her in the middle of the evidentiary hearing. That's the due process issue. And I wanted to turn to the Home Depot issue for a minute.

[00:30:10] Speaker 00:
Our argument is that there was no intent here because he was decompensated. There was a psychiatric evaluation that was filed with the court the day before the evidentiary hearing, and all the evidence cited by the prosecutor is supporting that because they're saying that he's compensated. has a shopping cart full of top stock items. In fact, what happened was he has a shopping cart full of 70 items. Only two of them are over $100.

[00:30:33] Speaker 00:
There's a lot of items that are $1 or so. This is not the act of someone who's really intending to thief. It's someone who's decompensated. And unless there are any further questions, I see my time is up. Thank you very much, counsel, to both sides for your helpful arguments this morning. The matter is submitted.