[00:00:00] Speaker 03:
Now going to hear United States v. Davey, No.

[00:00:04] Speaker 03:
24-3132.

[00:00:09] Speaker 02:
Judge Matheson, may it please the Court?

[00:00:12] Speaker 02:
Dan Hansmeyer on behalf of the appellants.

[00:00:15] Speaker 02:
Mr. Davey.

[00:00:16] Speaker 02:
So this appeal is about what it means to be an unlawful user of a controlled substance under Section 922G3.

[00:00:27] Speaker 02:
So our position is pretty straightforward.

[00:00:30] Speaker 02:
I think we think that an unlawful user is an individual who cannot lawfully use drugs, that their use is prohibited by some law.

[00:00:41] Speaker 02:
We get that just from the plain text and how it works grammatically.

[00:00:45] Speaker 02:
Modifier, what the words mean.

[00:00:47] Speaker 02:
Unlawful means prohibited by law.

[00:00:50] Speaker 02:
It modifies use.

[00:00:51] Speaker 02:
Pretty straightforward.

[00:00:52] Speaker 02:
I think that's also consistent with the way the statute works as a whole.

[00:00:58] Speaker 02:
and how the word unlawful is used repeatedly to mean prohibited by law, which means it should mean prohibited by law in this context, and the differences in language between possession and use throughout the statute.

[00:01:11] Speaker 00:
Is there any way to use heroin lawfully?

[00:01:16] Speaker 02:
So our position is yes, if lawfully is defined the way we define it as prohibited by law.

[00:01:23] Speaker 02:
So if there is not a law that prohibits your use, then you have lawfully used it.

[00:01:28] Speaker 00:
Well, can you use it without possessing it?

[00:01:34] Speaker 00:
Probably not.

[00:01:35] Speaker 00:
So you violated the law then, right?

[00:01:39] Speaker 02:
So you may have violated some law, yes.

[00:01:41] Speaker 00:
Well, you violated federal law?

[00:01:45] Speaker 02:
What's that?

[00:01:45] Speaker 00:
You would have violated federal law?

[00:01:49] Speaker 02:
It is a federal offense to possess a controlled substance, correct.

[00:01:54] Speaker 00:
So why then wouldn't you be an unlawful user?

[00:01:59] Speaker 02:
Because it's not a federal offense to use a controlled substance.

[00:02:04] Speaker 00:
How do you use it without possessing it?

[00:02:08] Speaker 02:
So you first have to possess it.

[00:02:10] Speaker 02:
I don't disagree with that.

[00:02:13] Speaker 02:
But that doesn't mean the use is prohibited by law.

[00:02:18] Speaker 02:
And I think there are statutes that prohibit use.

[00:02:23] Speaker 02:
And so therefore, there is a difference between a statute that prohibits use and a statute that prohibits possession.

[00:02:32] Speaker 03:
Seems almost like you're trying to split the atom here.

[00:02:35] Speaker 03:
Has any court adopted your interpretation?

[00:02:39] Speaker 02:
So I think it's an issue of first impression.

[00:02:41] Speaker 02:
I don't think anyone's made this argument.

[00:02:45] Speaker 02:
So one thing just I want to put out there for your consideration is, imagine a jurisdiction that decides that what it wants to prohibit, because remember, this statute applies, 922-G8, it's not just a federal thing, state laws.

[00:03:01] Speaker 02:
So imagine a jurisdiction, any jurisdiction, decides that what we want to prohibit is use.

[00:03:05] Speaker 02:
That's what we think is the problem, people using drugs.

[00:03:09] Speaker 02:
And we don't really care if they possess them.

[00:03:12] Speaker 02:
Just don't use them.

[00:03:13] Speaker 02:
So that's what they do.

[00:03:14] Speaker 02:
They craft a statutory scheme that prohibits use of a controlled substance.

[00:03:19] Speaker 02:
I mean, there are, yeah.

[00:03:21] Speaker 02:
But not possession.

[00:03:22] Speaker 02:
They're not going to criminalize possession.

[00:03:25] Speaker 02:
So imagine that scheme and try to fit it into the way the district court and the government read this statute.

[00:03:30] Speaker 02:
It would mean that those people, I think,

[00:03:33] Speaker 02:
can possess, are not unlawful users because it's not unlawful to possess.

[00:03:38] Speaker 02:
And I think that is just an example of why we think we have the best reading of the way in which Congress wrote this statute.

[00:03:48] Speaker 04:
Well, let me ask you this question.

[00:03:52] Speaker 04:
Let's bring my wife into it.

[00:03:58] Speaker 04:
So my wife, in this hypothetical, she has a prescription for hydrocodone.

[00:04:04] Speaker 04:
I go to the pharmacy, go by ID, pick up her hydrocodone, I drive home.

[00:04:09] Speaker 04:
Have I violated the 841 so far?

[00:04:16] Speaker 04:
I'm not unlawfully possessing hydrocodone.

[00:04:19] Speaker 04:
I picked it up for a certain prescription.

[00:04:20] Speaker 04:
I'm taking it to my wife, right?

[00:04:22] Speaker 04:
Sure.

[00:04:23] Speaker 04:
Now, I get to the driveway.

[00:04:26] Speaker 04:
Open the hydrocodone, pop the hydrocodone.

[00:04:30] Speaker 04:
I've now used the hydrocodone.

[00:04:32] Speaker 04:
So now I've consumed hydrocodone.

[00:04:37] Speaker 04:
Have I now committed a violation of the federal drug law for the very first time?

[00:04:46] Speaker 04:
I was lawfully possessing it.

[00:04:49] Speaker 04:
But am I in violation of a law when I put it in my mouth and consumed it?

[00:04:56] Speaker 02:
So I think a jury could convict you based on that.

[00:04:59] Speaker 02:
Well, I mean, you're holding it, first of all, so that would be possession.

[00:05:01] Speaker 04:
But yeah, I'm holding the, let's say I haven't taken the cap off.

[00:05:06] Speaker 02:
Oh, I see what you're saying.

[00:05:08] Speaker 02:
Yeah.

[00:05:08] Speaker 04:
Because it's your wife's.

[00:05:11] Speaker 04:
What I'm trying to get at is, maybe it's a weird situation, but let's say it seems like there are situations that we can kind of think of where it's really not unlawful to possess a controlled substance

[00:05:26] Speaker 04:
But it is, you intuitively violated a criminal law by popping it in your mouth, by consuming it.

[00:05:35] Speaker 04:
And if that's true, does that prevent your argument?

[00:05:40] Speaker 04:
It's a very clever argument, but is that King's Ex?

[00:05:47] Speaker 04:
Because that situation is, an illustration is it not, where the consumption of the drug

[00:05:54] Speaker 04:
triggers a violation of criminal law for the very first time?

[00:05:58] Speaker 02:
I don't think so, because the law you violated is still possession.

[00:06:02] Speaker 02:
I mean, what the government has to prove at your trial is that you possess.

[00:06:06] Speaker 02:
Now, maybe the evidence of your possession is your use, but that's not the ultimate question that the jury's going to decide.

[00:06:14] Speaker 02:
And maybe the jury decides that your use isn't possession.

[00:06:17] Speaker 02:
You can be acquitted in that case.

[00:06:19] Speaker 02:
I see.

[00:06:20] Speaker 02:
OK.

[00:06:21] Speaker 00:
I mean, it really is.

[00:06:24] Speaker 00:
Eighth Circuit has defined unlawful use under this statute as any person who is a current user of a controlled substance in a manner other than as prescribed by a licensed physician.

[00:06:37] Speaker 00:
So doesn't that make sense here?

[00:06:40] Speaker 02:
So that's the ATF definition.

[00:06:43] Speaker 02:
And the reason why that doesn't make sense, well, first of all, you shouldn't defer to the ATF's regulation because you don't do that.

[00:06:54] Speaker 00:
But it's a reasonable interpretation, isn't it?

[00:06:57] Speaker 02:
Well, it's not because the word, that would mean that unlawful in the statute would essentially mean without a prescription.

[00:07:04] Speaker 02:
Now, that's not what unlawful means.

[00:07:07] Speaker 00:
Well, unlawful just means in violation of law.

[00:07:11] Speaker 00:
And if you require prescription,

[00:07:14] Speaker 00:
and you don't have it, you're in violation of law.

[00:07:18] Speaker 02:
But you haven't used in violation.

[00:07:20] Speaker 02:
Unlawful modifies use.

[00:07:23] Speaker 02:
And it's not unlawful.

[00:07:24] Speaker 02:
So you would have to describe.

[00:07:27] Speaker 00:
Well, here he's admitted he uses, right?

[00:07:31] Speaker 02:
Yes.

[00:07:32] Speaker 02:
He's a user.

[00:07:33] Speaker 00:
And he doesn't have a prescription to use.

[00:07:36] Speaker 00:
Correct.

[00:07:37] Speaker 00:
Why isn't he an unlawful user?

[00:07:39] Speaker 02:
Well, because the meaning of unlawful is prohibited by law, not without a prescription.

[00:07:46] Speaker 00:
Well, if the law requires a prescription, well, okay, we're talking to schedule one, you can't get a prescription for it, right?

[00:07:53] Speaker 00:
So there is no lawful use.

[00:07:55] Speaker 02:
I guess my bottom line point is that this statute does not tie the phrase unlawful user to the drug prescription regime.

[00:08:06] Speaker 02:
It just doesn't do that.

[00:08:07] Speaker 02:
And if you want to interpret unlawful to mean without a prescription,

[00:08:11] Speaker 02:
Think about all of the times Congress used the word unlawful within 922G.

[00:08:16] Speaker 02:
You can't talk about prescriptions in that context because the statute wouldn't make any sense.

[00:08:21] Speaker 02:
So you run headlong into the consistent and inconsistent usage canon.

[00:08:27] Speaker 00:
And it's also... The word is unlawful.

[00:08:30] Speaker 00:
Correct.

[00:08:31] Speaker 00:
To me it means you have to decide what

[00:08:33] Speaker 00:
is unlawful, which means you have to look at other laws, right?

[00:08:38] Speaker 02:
But it modifies user.

[00:08:39] Speaker 02:
We know what's unlawful.

[00:08:42] Speaker 02:
Use is unlawful.

[00:08:44] Speaker 02:
And that has nothing to do with whether there's a prescription or not.

[00:08:48] Speaker 02:
I mean, Congress could have.

[00:08:49] Speaker 02:
Congress could have cross-referenced the prescription drug screen.

[00:08:53] Speaker 02:
It didn't do that.

[00:08:54] Speaker 02:
In fact, it cross-referenced Section 802.

[00:08:56] Speaker 00:
But it didn't have to cross-reference every statute that would make this use

[00:09:03] Speaker 00:
unlawful.

[00:09:06] Speaker 00:
I mean, there's other sections of the statute where it specifically says, in this section.

[00:09:11] Speaker 00:
It didn't do that either.

[00:09:14] Speaker 02:
Well, I don't know why it would do that.

[00:09:16] Speaker 02:
My basic point is that if there's a specialized meaning of the word unlawful user that relates to prescriptions, there's no indication that Congress meant that in this statute because there is no cross-reference.

[00:09:29] Speaker 00:
Well, I'm not arguing it's a specialized meaning.

[00:09:31] Speaker 00:
I'm saying there's a general meaning of lawful, which means in violation of law, which tells me I have to look to see, are there any laws that are being violated?

[00:09:42] Speaker 02:
Yeah, I still think that you're missing the modifier, that it's unlawful user.

[00:09:48] Speaker 02:
I mean, I agree that if you just say unlawful in general.

[00:09:52] Speaker 00:
Judge Bacharach's hypothetical, as soon as he swallowed those pills, there's no doubt he's possessing them, right?

[00:10:02] Speaker 00:
Correct.

[00:10:02] Speaker 00:
You can't use a Schedule I substance lawfully.

[00:10:10] Speaker 02:
Well, if you define, we're just going around in circles, if you define unlawful in the statute as prohibited by law, then you can't possess lawfully, but you can't.

[00:10:22] Speaker 02:
But there's no law that prohibits your use.

[00:10:26] Speaker 00:
Well, I guess I'm back to Judge Matheson's comment about we're trying to split an atom.

[00:10:33] Speaker 00:
You're going to have to give me an example of

[00:10:35] Speaker 00:
how you can use a Schedule I substance without possessing it.

[00:10:43] Speaker 02:
So I can't give you that example.

[00:10:46] Speaker 02:
What I can tell you is that this statute uses the words use and possession differently throughout the statute.

[00:10:52] Speaker 02:
I think there are 60 times that Congress used some form of the word possess within Section 922.

[00:10:59] Speaker 02:
And so it clearly knows the difference between use and possession.

[00:11:06] Speaker 03:
conflate the two, that's just not the way we interpret statutes.

[00:11:22] Speaker 03:
U.S.

[00:11:23] Speaker 03:
v. Bennett, where the court said regular and ongoing use of marijuana and methamphetamine during the same time period as firearm possession qualifies a defendant as an unlawful user of a controlled substance.

[00:11:40] Speaker 03:
And I know it's a guideline case, but the reference was an interpretation of this statute.

[00:11:48] Speaker 03:
What's your answer on Bennett?

[00:11:49] Speaker 03:
Is it controlling?

[00:11:51] Speaker 02:
Why isn't it controlling?

[00:11:53] Speaker 02:
The thing with that line of precedent is that this particular issue wasn't raised.

[00:11:58] Speaker 02:
And so, yes, that goes to what qualifies as a user.

[00:12:02] Speaker 02:
There is a qualification that it has to be regular and ongoing.

[00:12:06] Speaker 02:
But that case doesn't tell us what that modifier unlawful means.

[00:12:11] Speaker 02:
And if you think about, I mean, the government's position is really that once this court

[00:12:16] Speaker 02:
interprets a statute, we're done.

[00:12:18] Speaker 02:
And that's just not true.

[00:12:19] Speaker 02:
I mean, think about how many times, I don't know, take an example, the Supreme Court has interpreted the fraud statute.

[00:12:25] Speaker 02:
I mean, there's probably 12 cases of statutory interpretation on the fraud.

[00:12:28] Speaker 02:
They don't just stop at the first one and say, oh, that's what everything within the provision needs.

[00:12:33] Speaker 02:
I mean, we're focused on one word.

[00:12:35] Speaker 02:
unlawful and what it means in the context of the statute.

[00:12:39] Speaker 02:
And this court has never told anyone what unlawful does in this statute.

[00:12:44] Speaker 02:
And I think if you read those cases about what user means as somehow meaning what unlawful means, it's not accurate because that issue wasn't presented.

[00:12:55] Speaker 03:
Let me try another one on you.

[00:12:57] Speaker 03:
This is the Rodriguez decision in 2019.

[00:13:01] Speaker 03:
The court said knowing use of a controlled substance supports a charge for possession.

[00:13:09] Speaker 03:
Now, whether the case itself is presidential or not, it sort of states the point that if you're using something that supports a charge for something else, why isn't that using of something unlawful?

[00:13:31] Speaker 02:
Well, because it's not prohibited by law.

[00:13:34] Speaker 02:
It's just not.

[00:13:34] Speaker 02:
The possession is the thing that's prohibited, and the use supports the charge of possession.

[00:13:40] Speaker 02:
I understand.

[00:13:41] Speaker 02:
I keep saying the same thing.

[00:13:42] Speaker 02:
You do.

[00:13:45] Speaker 02:
I can reserve the remainder of my time, so I don't keep repeating myself.

[00:13:48] Speaker 02:
All right.

[00:13:48] Speaker 02:
OK, thanks.

[00:13:53] Speaker 01:
Good morning, Your Honors.

[00:13:54] Speaker 01:
Brian Clark for the United States.

[00:13:57] Speaker 01:
May it please the court.

[00:13:58] Speaker 01:
Mr. Davies' argument is really quite extraordinary, as Your Honors have pointed out this morning.

[00:14:04] Speaker 01:
He admitted that at the time he was arrested, he was using heroin on a daily basis while he possessed firearms.

[00:14:11] Speaker 01:
Yet he argues that he was not an unlawful user of controlled substances in possession of firearms in violation of Section 922G3, because it was perfectly lawful for him to be using heroin at the time.

[00:14:25] Speaker 01:
But heroin

[00:14:26] Speaker 01:
As you mentioned, Judge McHugh, is a Schedule I controlled substance.

[00:14:31] Speaker 01:
There is no lawful use for heroin.

[00:14:34] Speaker 01:
So it's not possible that he was a lawful user of heroin.

[00:14:38] Speaker 04:
Because he violated not the criminal prohibition against use, but because he and Rockwell violated the criminal prohibition against possession.

[00:14:49] Speaker 01:
That's right.

[00:14:49] Speaker 01:
We're relying, correct.

[00:14:50] Speaker 01:
Yeah.

[00:14:51] Speaker 04:
And so let's say I have in my pocket a pound of heroin.

[00:14:58] Speaker 04:
And so I violated that law, right?

[00:15:03] Speaker 04:
And so now I pop some, I don't know how you consume heroin, let's say I smoke the heroin.

[00:15:09] Speaker 04:
If I violated another law, is there some other law other than possession,

[00:15:16] Speaker 04:
that I violated once I exploited the possession by consuming the heroin.

[00:15:23] Speaker 01:
No, it's the Controlled Substances Act prohibition on possession that we're relying on to show the unlawfulness.

[00:15:30] Speaker 04:
So how in the world do we affirm under G3?

[00:15:34] Speaker 04:
Because that is his point.

[00:15:38] Speaker 04:
His point, Rockwell Bennett,

[00:15:41] Speaker 04:
Rockwell, at least, is correct.

[00:15:44] Speaker 04:
The antecedent act of the use is possession.

[00:15:47] Speaker 04:
And so he's not as understanding.

[00:15:49] Speaker 04:
He can tell me if I'm wrong in his rebuttal.

[00:15:51] Speaker 04:
But I don't think he's questioning that, that he's violated a criminal law.

[00:15:56] Speaker 04:
He's just saying the law doesn't say unlawful possession, that you can't possess a firearm if you are unlawful possessor of heroin.

[00:16:06] Speaker 04:
It says unlawful user.

[00:16:08] Speaker 04:
And if you can possess heroin, then you use it.

[00:16:13] Speaker 04:
And you're not doing anything other than violating the prohibition against possession.

[00:16:18] Speaker 01:
Well, that makes it unlawful, right?

[00:16:21] Speaker 01:
The possession.

[00:16:23] Speaker 04:
It makes it unlawful to possess.

[00:16:25] Speaker 04:
But I think your answer to my question, I don't know how you square your argument with your answer to my question.

[00:16:33] Speaker 04:
If I have an illegal substance in my pocket, I've violated the possession law.

[00:16:40] Speaker 04:
And then if I use it, I'm not doing anything.

[00:16:43] Speaker 04:
There's no count two for unlawful use of the heroin.

[00:16:48] Speaker 04:
The count is not unlawful use.

[00:16:51] Speaker 04:
It's unlawful possession.

[00:16:55] Speaker 01:
Well, if I said the use was lawful, that is not what I meant to say.

[00:16:59] Speaker 01:
What I meant to say is that both acts are unlawful under the same statute.

[00:17:03] Speaker 04:
OK, so back to my hypothetical.

[00:17:04] Speaker 04:
So let's say I have marijuana in my pocket.

[00:17:08] Speaker 04:
And so I have marijuana in my pocket.

[00:17:10] Speaker 04:
So I violated the possession law, right?

[00:17:14] Speaker 04:
And so now I smoke the marijuana.

[00:17:16] Speaker 04:
Now can I be subject to a count two for unlawful use of marijuana?

[00:17:23] Speaker 01:
You know, I haven't studied that, what the... Or heroin or cocaine.

[00:17:29] Speaker 01:
Right.

[00:17:30] Speaker 01:
You know, what the...

[00:17:34] Speaker 01:
you know, whether you could be charged twice for it.

[00:17:36] Speaker 04:
But I think that's sort of beside the point.

[00:17:39] Speaker 04:
Let's say I wait by double jeopardy.

[00:17:41] Speaker 01:
But sure, the indictment could read that the basis for the charge could be the unlawful use.

[00:17:48] Speaker 01:
That's exactly what was the case in Rodriguez.

[00:17:51] Speaker 01:
Now, obviously in Rodriguez, that was a violation of supervised release.

[00:17:54] Speaker 01:
But the whole thrust of that.

[00:17:56] Speaker 04:
Was there a Mr. Hansmeier in that case making this argument?

[00:18:00] Speaker 04:
that there was no prohibition against the unlawful use of the substance?

[00:18:05] Speaker 01:
To be honest, I didn't go back and read the briefs, but what the decision said and what is, I think, binding here, even though it arose in a different context, is that the defendant's use of cocaine violated 21 USC 844A.

[00:18:18] Speaker 01:
Sure.

[00:18:20] Speaker 04:
Lots of cases.

[00:18:21] Speaker 01:
It was unlawful.

[00:18:22] Speaker 04:
To take Judge Matheson's point, I don't, you know, do you think that if we have a, I thought Westford Falls said this about like 80 years ago, that if you have a proposition lurking in the background, Judge Hart said it in a case called Cantu, if you have a case that has a proposition lurking in the background and it's not discussed or decided by the court, then it doesn't stand for that

[00:18:49] Speaker 01:
Right, so I have two responses to that.

[00:18:52] Speaker 01:
The first is from this court's president, which is Bennett footnote 5.

[00:18:58] Speaker 01:
In Bennett footnote 5, this court did address that question.

[00:19:02] Speaker 01:
In Bennett, the

[00:19:06] Speaker 01:
question.

[00:19:07] Speaker 01:
It was a guidelines case, but it was addressing whether the defendant was a prohibited person under Section 922 G3, specifically whether he was an unlawful user.

[00:19:17] Speaker 01:
To be sure, as Mr. Hansmeier states, a lot of that opinion focused on the regular and ongoing use, but not Footnote 5.

[00:19:25] Speaker 01:
Footnote 5 talks specifically about the unlawful part of unlawful user.

[00:19:29] Speaker 01:
And what

[00:19:30] Speaker 04:
The court says is that... Okay, I've got footnote five.

[00:19:34] Speaker 04:
I don't see the word use in it.

[00:19:36] Speaker 04:
I do see the sentence, except for limited circumstances not present here.

[00:19:40] Speaker 04:
The mere possession of these substances is illegal.

[00:19:45] Speaker 04:
In footnote five, I don't see the... Maybe I'm just blind, but I don't see the word user usage.

[00:19:51] Speaker 01:
In the text of the opinion that accompanies the footnote,

[00:19:57] Speaker 01:
It says that the defendant admitted using the controlled substance is in the sentence before that talks about being an unlawful user.

[00:20:06] Speaker 01:
So I think when you read footnote five after the two sentences that proceed where the footnote is dropped in that opinion, it's very clear that what the court is doing is saying, you know, the focus of this opinion may be

[00:20:18] Speaker 01:
this regular and ongoing use.

[00:20:20] Speaker 01:
But we're going to say clearly here why we think it's unlawful.

[00:20:23] Speaker 01:
And the reason we think it's unlawful is because this defendant couldn't even possess these drugs, much less use them.

[00:20:32] Speaker 01:
And so that's what makes the use unlawful.

[00:20:35] Speaker 01:
So I just simply disagree with the premise that this court has never addressed it.

[00:20:41] Speaker 01:
I think this court has addressed it.

[00:20:43] Speaker 01:
And the second point that I would make is just that,

[00:20:47] Speaker 01:
This court's, you know, the the premise of the defendant's argument here is that the plain language of the statute makes it obvious that using heroin is lawful.

[00:20:57] Speaker 01:
This court has addressed vagueness challenges to 1983.

[00:20:59] Speaker 01:
I'm sorry to 922 G to

[00:21:03] Speaker 01:
multiple times in Edwards and Morales Lopez over and over again, and the court over and over again says, this statute clearly covers this defendant's conduct.

[00:21:14] Speaker 01:
Why?

[00:21:15] Speaker 01:
Because this defendant used a controlled substance regularly and ongoingly, contemporaneous with the possession of a firearm.

[00:21:23] Speaker 01:
And I think actually the whole idea of lurking in the background gets flipped on its head here because I think it's actually Mr. Davey that's arguing that there was this massive issue that's been lurking that nobody had.

[00:21:40] Speaker 04:
Can you say that anybody's ever made this argument in any of the cases that you're relying on?

[00:21:46] Speaker 01:
I did not go back and read the briefs, but frankly.

[00:21:48] Speaker 04:
Or even the discussion and the opinion.

[00:21:51] Speaker 01:
Right.

[00:21:51] Speaker 01:
I would point you to Bennett.

[00:21:52] Speaker 01:
And that's controlling.

[00:21:53] Speaker 04:
And so where in Bennett, in the text accompanying footnote five, does it say the defendant, Mr. Bennett, argues that the word unlawful is a modifier for the

[00:22:03] Speaker 04:
down user.

[00:22:05] Speaker 04:
And there is no criminal prohibition against usage.

[00:22:08] Speaker 04:
There is a criminal prohibition against possession.

[00:22:11] Speaker 04:
And possession and usage are two distinct acts.

[00:22:14] Speaker 04:
Is there anything like that?

[00:22:15] Speaker 01:
To be sure, the court didn't do that.

[00:22:17] Speaker 01:
But I don't think the court is required to do that.

[00:22:19] Speaker 01:
Nor do I think that in this court's practice of interpreting its own precedent, does it treat the briefs as more precedential than the opinion itself.

[00:22:28] Speaker 01:
If the opinion says something, which this court said in Bennett footnote five,

[00:22:32] Speaker 01:
I don't think then this court would say, well, then it might have said that, let me go back and see if a party argued that to decide whether we're going to actually follow our precedent or not.

[00:22:41] Speaker 01:
So I just don't, I don't think that is how this court typically interprets as precedent to just, to sort of toggle the weight based on how, whether the argument was made by a party or not, or how well it was briefed, et cetera.

[00:22:57] Speaker 00:
I guess I keep coming back to nothing in 922 G ties it to whether you can be criminally prosecuted for the use.

[00:23:07] Speaker 00:
It says whether the use is unlawful.

[00:23:09] Speaker 00:
That's right.

[00:23:09] Speaker 00:
If it's a schedule one substance.

[00:23:12] Speaker 00:
Right.

[00:23:13] Speaker 00:
We know there is no lawful use as a matter of law.

[00:23:19] Speaker 01:
That's right.

[00:23:20] Speaker 01:
That is absolutely correct.

[00:23:21] Speaker 01:
There is no lawful use for a schedule one substance

[00:23:25] Speaker 03:
So I've been thinking about Judge Bacharach's hypothetical, and it strikes me that the scenario he sketched out is probably what happens in pretty much every instance of personal use.

[00:23:43] Speaker 03:
You've got to obtain and possess the drug before you can use it, right?

[00:23:50] Speaker 03:
You've got to before you can inject it,

[00:23:53] Speaker 03:
ingest it, whatever it happens to be.

[00:23:58] Speaker 03:
So before the use, the possession has occurred, and that would be unlawful.

[00:24:10] Speaker 03:
And so then the question became, well, okay, but wait a minute.

[00:24:15] Speaker 03:
that same person is going to use it, but they've already committed the possession.

[00:24:21] Speaker 03:
But one way of looking at it is that now they're going to use it, but the possession is a continuing offense.

[00:24:31] Speaker 03:
You're still possessing the truck while you're using it.

[00:24:35] Speaker 01:
I think that's right.

[00:24:36] Speaker 01:
I think that's right.

[00:24:37] Speaker 01:
You possess it when you take physical custody of it.

[00:24:39] Speaker 01:
The person would then possess it as they, I don't know how you use heroin, but as they use it, as they ingest it, and then they would continue to possess it in their body.

[00:24:50] Speaker 01:
That's what this court said, and I believe it was Hammond's, for as long as it's within their body.

[00:24:55] Speaker 01:
And your question gets at an important point because

[00:24:58] Speaker 01:
Mr. Davey argues that the government and the district court are conflating possession and use, but we're not.

[00:25:05] Speaker 01:
We're not conflating them at all.

[00:25:07] Speaker 01:
If Mr. Davey had possessed heroin and possessed it on a daily basis and possessed firearms without using the heroin,

[00:25:17] Speaker 01:
That's not a 922G3 offense because he didn't use it.

[00:25:21] Speaker 01:
The offense is the fact that he used it.

[00:25:24] Speaker 01:
Use is a subset, is a form of possession, but they're not coterminous, and that's not what the district court said.

[00:25:32] Speaker 01:
In fact, the district court was very clear.

[00:25:34] Speaker 01:
that possession precedes use.

[00:25:37] Speaker 01:
The district court judge saw them as two distinct but sort of related nested acts.

[00:25:43] Speaker 01:
And that's our position as well.

[00:25:45] Speaker 01:
We're not conflating use and possession.

[00:25:47] Speaker 01:
And I think that's important to remember.

[00:25:51] Speaker 01:
I think also with respect to this idea of a prescription and where that piece of it comes in, obviously with respect to heroin, it has no place because there's no way to get a prescription for heroin.

[00:26:04] Speaker 01:
lawful use for heroin.

[00:26:06] Speaker 01:
But the prescription piece of this that the Eighth Circuit keyed in on the Seventh Circuit and Cook also used that same language, it is in the ATF interpretation of the statute, it comes from 844A itself because it says knowingly or intentionally possess unless you have a valid prescription for the controlled substance.

[00:26:28] Speaker 01:
It's not coming out of thin air.

[00:26:29] Speaker 01:
It's coming straight from the provision that makes use unlawful.

[00:26:35] Speaker 01:
And so I guess I will just go back to that.

[00:26:41] Speaker 01:
It is not

[00:26:43] Speaker 01:
There's no way to lawfully use heroin.

[00:26:46] Speaker 01:
There's no way to lawfully use any controlled substance that a person does not lawfully possess.

[00:26:55] Speaker 01:
That's what this court was saying in Bennett.

[00:26:58] Speaker 01:
That's what this court has said for decades, Rockwell, Hammons, Rodriguez, all of those cases.

[00:27:06] Speaker 01:
And here.

[00:27:06] Speaker 01:
That fits Mr. Davies' conduct to a T, that he was unlawfully using heroin on a daily basis while he possessed firearms.

[00:27:27] Speaker 01:
And I guess the last point I would make, unless there are further questions, and Judge Backrock, getting back to your question about

[00:27:34] Speaker 01:
separating use from possession.

[00:27:36] Speaker 01:
I think it's important to take a step back and remember when we're talking about the Controlled Substances Act, when we're relying on 21 USC 844A, the Congress in the Controlled Substances Act was getting at improper use of controlled substances by targeting possession.

[00:27:54] Speaker 01:
And one way that we know that is because in the list of purposes for enacting,

[00:28:01] Speaker 01:
the Controlled Substances Act to begin with, and I would point you to 21 USC 801-2, is that was to prohibit the improper use of controlled substances, which was wreaking havoc on the general health and welfare of the American people.

[00:28:24] Speaker 01:
And then, again, in 21 U.S.C.

[00:28:26] Speaker 01:
812B1, it talked about Schedule I substances having no medically approved or proper use.

[00:28:36] Speaker 01:
And so the Congress and the statute that we are looking at didn't treat possession and use as separate.

[00:28:45] Speaker 01:
It treated them as together.

[00:28:46] Speaker 01:
And the way that use was prohibited

[00:28:49] Speaker 01:
was by prohibiting it as a subsidiary to possession.

[00:28:56] Speaker 01:
And so I'll just point you to those portions of the Controlled Substances Act.

[00:28:59] Speaker 01:
I see my time is up.

[00:29:00] Speaker 01:
Thank you for your time.

[00:29:02] Speaker 01:
I would ask the court to affirm.

[00:29:04] Speaker 01:
Thank you, counsel.

[00:29:15] Speaker 02:
All right, let me see if I can get out five quick points.

[00:29:17] Speaker 02:
So first, on Bennett footnote five, we discussed this on pages 11 to 12 of the reply brief, pages 24 to 25 of the opening brief.

[00:29:25] Speaker 02:
I'll basically rest on that.

[00:29:27] Speaker 02:
But note, Bennett was an unlawful user.

[00:29:29] Speaker 02:
It was unlawful for him to use in Wyoming.

[00:29:32] Speaker 02:
There's a statute that prohibits unlawful use.

[00:29:35] Speaker 02:
So that case, you can't read that footnote any broader.

[00:29:40] Speaker 02:
than what it was.

[00:29:41] Speaker 02:
And also we discussed in the opening brief the issues that were actually raised in Bennett and this wasn't one of them.

[00:29:46] Speaker 02:
That leads into my second point, which is to judge McEwe, your point about this idea that possession is unlawful, use is unlawful.

[00:29:53] Speaker 02:
Think about what that does to every unlawful use statute that exists in the world.

[00:29:58] Speaker 02:
I mean, they essentially become superfluous because it's just possession, not use.

[00:30:04] Speaker 02:
My third point, we're not really conflating possession and use so much as we're defining unlawful user.

[00:30:10] Speaker 02:
in grammatical terms.

[00:30:12] Speaker 02:
It's an individual who uses a controlled substance.

[00:30:15] Speaker 02:
The government essentially defines that term as an individual who uses a controlled substance.

[00:30:19] Speaker 02:
He cannot lawfully possess that.

[00:30:21] Speaker 02:
Language just isn't in the statute.

[00:30:23] Speaker 02:
To the fourth point, you can't get there by going to the Controlled Substances Act because the Controlled Substances Act is not cross-referenced in Section 922G3.

[00:30:31] Speaker 00:
Well, I don't follow that argument.

[00:30:34] Speaker 00:
I mean, you want us to look at state law to decide whether

[00:30:40] Speaker 00:
it was unlawful to use.

[00:30:43] Speaker 00:
And it's not cross-referenced.

[00:30:46] Speaker 00:
By using the term unlawful, we necessarily have to look at other laws.

[00:30:51] Speaker 00:
So why can't we look at the Controlled Substance Act and whether it's a Schedule I substance for which there is no lawful use?

[00:31:00] Speaker 02:
Well, so I think you can look to the Controlled Substances Act to determine whether Congress has prohibited use, just like you can look to any state law to determine whether Congress has prohibited use.

[00:31:13] Speaker 02:
What I'm saying is there's no basis to look to the Controlled Substances Act to adopt a definition of unlawful user that is a textual

[00:31:22] Speaker 02:
because we have a cross-reference to one portion of that Act, Section 802, and nothing else.

[00:31:28] Speaker 02:
And the case law is very clear that when you have a cross-reference to one section of a provision and no other provisions, you don't consider the other provisions.

[00:31:38] Speaker 02:
And we talk about that case law an amount of time.

[00:31:42] Speaker 02:
Thank you.

[00:31:42] Speaker 03:
Thank you, counsel.

[00:31:46] Speaker 03:
Interesting case, and I appreciate the arguments this morning.

[00:31:52] Speaker 03:
The case be submitted, Council are excused.