[00:00:00] Speaker 04:
We'll call our next case, 24-4018, U.S.

[00:00:05] Speaker 04:
versus K. I'm not going to try to pronounce your name because I'll get it wrong, period.

[00:00:28] Speaker 00:
You got it right last time.

[00:00:30] Speaker 04:
I'm surprised I tried.

[00:00:33] Speaker 04:
Did I say Pirie or did I say Pirie?

[00:00:35] Speaker 00:
You said Pirie and that is correct.

[00:00:39] Speaker 04:
Okay.

[00:00:39] Speaker 04:
Welcome back.

[00:00:40] Speaker 00:
Thank you.

[00:00:41] Speaker 00:
May it please the court, Bretta Pirie on behalf of Michael Kay.

[00:00:46] Speaker 00:
The obstruction guideline is carefully calibrated to limit its application based on the defendant's intentions and the effect that that conduct had upon an investigation.

[00:00:59] Speaker 00:
So hiding evidence ordinarily counts but not if it's done contemporaneously unless it materially hinders.

[00:01:06] Speaker 00:
Line to law enforcement normally doesn't count unless it significantly impedes.

[00:01:11] Speaker 00:
Just so with the guideline governing pre-investigation conduct.

[00:01:17] Speaker 00:
It only implies if the conduct was purposefully calculated and likely to thwart.

[00:01:22] Speaker 00:
The district court erred

[00:01:23] Speaker 00:
in finding that Mr. K's conduct was likely to thwart any future investigation, and so the court should reverse.

[00:01:31] Speaker 01:
And that finding is reviewed for clear error, right?

[00:01:36] Speaker 00:
The factual findings are reviewed for clear error.

[00:01:39] Speaker 00:
As discussed in the briefing,

[00:01:42] Speaker 00:
the standard of review is actually subject to intra- and intra-circuit conflict.

[00:01:48] Speaker 00:
So I think the best view of the evidence of the standard of review might be that the factual findings underlying it are reviewed for clear error.

[00:01:56] Speaker 00:
But there might be a case to be made that there's de novo review of whether those facts rise to the level of likelihood to thwart.

[00:02:03] Speaker 00:
But I agree that this is a fact-bound determination.

[00:02:10] Speaker 01:
conclude that it was at least permissible on this record to conclude that the police searching the vehicle would Judge Sam's finding was that hiding the gun under the back cover behind the spare tire is what was likely to thwart right that is correct and if we think that that finding is

[00:02:38] Speaker 01:
at least permissible on this record, we would have to say it's not clearly erroneous.

[00:02:44] Speaker 00:
Is that correct?

[00:02:46] Speaker 00:
Yes.

[00:02:47] Speaker 00:
I think that's almost tautological that, you know, if I lose, I lose.

[00:02:52] Speaker 01:
Right.

[00:02:53] Speaker 01:
But is that, I mean, I see that as the key finding in this case.

[00:02:56] Speaker 00:
Yes, that is the key finding in this case that somehow, and the government talks about that in its brief as well, that somehow this triple hiding, taking three steps is what does it.

[00:03:07] Speaker 00:
But my response to that would be, for hiding something three different ways to be likely to thwart anything, at least one of them has to be likely to hinder the police for even a moment.

[00:03:19] Speaker 00:
So the hypothetical I have is, right now, if I opened this panel, which I'm not going to do because there are a bunch of electronics I checked earlier, but if I opened it and placed my outline, and you can't really see what my hands are doing, and placed it behind that,

[00:03:36] Speaker 00:
And then to make it extra secure, put a piece of paper on top of it.

[00:03:40] Speaker 00:
There is absolutely no likelihood that if anyone came to search this podium for my outline, that they'd be hindered for a moment.

[00:03:47] Speaker 00:
Even though I did three things to hide it, they were all strikingly ineffectual.

[00:03:52] Speaker 00:
And I would also like to point out that in volume two at page 50, when the prosecutor is describing it, sentencing how this gun was hidden, she said it was in the trunk

[00:04:03] Speaker 00:
under the cover and partially tucked behind the spare tire.

[00:04:08] Speaker 00:
So it sounds as though based on that record, the minute you open the cover, you could see it because it was only partially tucked behind the spare tire.

[00:04:16] Speaker 00:
So these were three strikingly, well, really only two because the district court acknowledged that putting it in the trunk wasn't enough.

[00:04:26] Speaker 00:
So we're really resting on behind the back cover and partially tucked behind the spare tire.

[00:04:31] Speaker 00:
So immediately visible.

[00:04:34] Speaker 00:
And that simply cannot be a finding that's supported by this record, given the fact that the Stricklands watched Mr. K open the trunk.

[00:04:45] Speaker 00:
They couldn't see him put the gun in the trunk, but this was shortly after the incident took place.

[00:04:50] Speaker 00:
Mrs. Strickland said they'd only gone about half a mile when she looked into her rear view mirror and saw him pulling over and opening the trunk.

[00:04:57] Speaker 00:
And all of this was conveyed to the officers.

[00:05:00] Speaker 00:
So when the officers arrived at the scene,

[00:05:02] Speaker 00:
They had every reason to suspect, especially since Mr. K immediately confessed, yeah, there was a road rage incident, but it was just a knife.

[00:05:11] Speaker 00:
So they had every reason to suspect that the gun was in the trunk.

[00:05:16] Speaker 00:
And as mentioned in the briefing, any conceivable search, whether they arrested Mr. K because he admitted he'd been in a road rage incident and threatened somebody and he had a child in the car, maybe they would have arrested him on some kind of child endangerment theory.

[00:05:31] Speaker 00:
An inventory would have discovered that gun immediately based on all of this court's precedent.

[00:05:36] Speaker 00:
If they based it on his consent search and once they found drugs in the passenger compartment, they had probable cause to search the trunk.

[00:05:43] Speaker 00:
Consent searchers are incredibly thorough or whether they just had probable cause based on what they'd already heard.

[00:05:50] Speaker 00:
There was absolutely no possibility that a gun this ineffectually hidden was going to thwart an investigation even for a moment.

[00:06:01] Speaker 00:
Now, the government does have a theory that Mr. K's actions took place actually during an investigation.

[00:06:11] Speaker 00:
Now, my reply brief discusses at great length their contention that pre-amendment guidelines cases resolve this issue.

[00:06:20] Speaker 00:
But there's also another issue and another theory the government advances that I want to touch on briefly.

[00:06:26] Speaker 00:
The government seems to suggest in several parenthetical comments that Dispatch somehow deputized the Stricklands so that a law enforcement investigation was going on.

[00:06:38] Speaker 00:
And the government relies for that supposition on a paragraph in the PSR, paragraph eight, which does in fact give that as the chronology that Dispatch directed the Stricklands to follow him.

[00:06:50] Speaker 00:
And after that, they saw Mr. K pull over.

[00:06:53] Speaker 00:
But there are both factual and legal problems with this subsidiary theory that the government advances.

[00:07:02] Speaker 00:
That part of the PSR was never adopted as a factual finding by the district court.

[00:07:07] Speaker 00:
And the reason that nobody gave their attention to it, there was no reason for the district court to adopt it, is the government advanced the pre-investigation theory below in its briefing and at oral argument.

[00:07:21] Speaker 00:
The defendant agreed that this was pre-investigation conduct.

[00:07:24] Speaker 00:
So no one gave their attention.

[00:07:25] Speaker 01:
Can I ask you a question about that paragraph?

[00:07:27] Speaker 01:
Yes.

[00:07:27] Speaker 01:
So are you saying the court didn't rely on it or it explicitly rejected it?

[00:07:31] Speaker 00:
The court didn't rely on it.

[00:07:33] Speaker 01:
But it wasn't objected to?

[00:07:34] Speaker 01:
It wasn't formally objected to.

[00:07:37] Speaker 00:
There was no objection to that.

[00:07:38] Speaker 00:
But it was contradicted, both in the defendant's briefing and then at sentencing in volume two at page 59.

[00:07:46] Speaker 00:
Mr. K's attorney read from Jacob Strickland's, the one who was on the phone with this patch, read from his witness statement and said, yeah, Mr. Strickland talked, he called 911 and then he talked to a couple of people and then they were directing him what to do.

[00:08:01] Speaker 00:
And then defense counsel paraphrased and said, so they were directing him who to talk to.

[00:08:07] Speaker 00:
And all of this happened after my client had already hidden the gun.

[00:08:14] Speaker 00:
So.

[00:08:16] Speaker 04:
So it's not even clear whether there was a conversation.

[00:08:23] Speaker 04:
Well, it's not clear whether he called 911 before or after the gun was hidden.

[00:08:29] Speaker 00:
I think it's clear that he called 911 before the gun was hidden.

[00:08:33] Speaker 00:
But it was a very short timeline.

[00:08:36] Speaker 00:
And the prosecutor did not object to defense counsel's summary of Mr. Strickland's witness statement.

[00:08:44] Speaker 00:
And so there was apparently broad agreement as to this chronology.

[00:08:49] Speaker 00:
But again, no one paid attention to this fact, because it wasn't part of the government's theory.

[00:08:54] Speaker 00:
And it was the government's burden.

[00:08:57] Speaker 01:
What tells us, in your view, that the district court understood that we were operating under note one of 3C1.1?

[00:09:05] Speaker 00:
Oh, because the district court explicitly responded to defense counsel's argument that this was pre-investigation conduct, and so it wasn't likely to thwart

[00:09:14] Speaker 00:
And the district court said, well, yeah, if you just put it in the trunk.

[00:09:20] Speaker 00:
But instead, he put it under the cover behind the tire.

[00:09:23] Speaker 00:
And so- But did the district court use the likely to thwart language?

[00:09:28] Speaker 00:
The district courts, I'm not sure if he said the words likely to thwart.

[00:09:33] Speaker 01:
But it's your position that there's just no reason to think that the district court thought this was anything but pre-investigation.

[00:09:41] Speaker 00:
No.

[00:09:41] Speaker 00:
No one argued that.

[00:09:43] Speaker 00:
And the district court's express ruling was because it was triply hidden, therefore the enhancement applies.

[00:09:51] Speaker 00:
So there's no reasonable reading of this record that has the district court finding anything other than this was pre-investigation conduct.

[00:10:01] Speaker 04:
So you're saying we should just not consider the alternative argument raised by the government

[00:10:09] Speaker 04:
Would that be appropriate on remand and the facts could be determined regarding the chronology and then the court could rule on whether this satisfied the requirements for a during investigation?

[00:10:24] Speaker 00:
Well, I think it's clear that this court shouldn't exercise its discretion to consider an alternate ground on this record because, as I've mentioned,

[00:10:34] Speaker 00:
It fails every one of the Elkins factors.

[00:10:37] Speaker 00:
It wasn't briefed and argued below and above.

[00:10:40] Speaker 00:
The factual record wasn't developed.

[00:10:42] Speaker 04:
I would... So if we adopt your argument on the pre-investigation, should we then remand with the possibility of reaching a similar result with the same result?

[00:10:55] Speaker 00:
I'm inclined to say no, they shouldn't remand and have new evidence.

[00:11:00] Speaker 00:
This case isn't on

[00:11:02] Speaker 00:
all fours with the cases in which this court has said the government shouldn't get a second bite at the apple, but it's close.

[00:11:10] Speaker 04:
Well, we almost always remand sentencing for reconsideration.

[00:11:17] Speaker 00:
But not for new evidence.

[00:11:18] Speaker 00:
I mean, this court often limits the remand under the principle that the government shouldn't have a second bite at the apple when it was their burden below.

[00:11:26] Speaker 00:
They could have built this record.

[00:11:29] Speaker 00:
And there's reason to believe that the record wouldn't go their way.

[00:11:32] Speaker 00:
So I think given that it was their burden, given that they advanced this argument below, if they were asking for a reversal instead of affirmance, we'd be in invited error territory.

[00:11:47] Speaker 00:
The government actively pursued this theory and it was their burden.

[00:11:51] Speaker 00:
So I don't think remand is appropriate for new evidentiary hearing.

[00:11:56] Speaker 00:
But the court does have discretion to either limit the mandate or not limit the mandate.

[00:12:07] Speaker 00:
If there are no further questions, I'll save the remainder of my time for rebuttal.

[00:12:11] Speaker 00:
Thank you.

[00:12:29] Speaker 03:
Good morning, and may it please the court.

[00:12:30] Speaker 03:
Joseph Palmer for the government.

[00:12:34] Speaker 03:
The sentencing guidelines provide for a modest two-level enhancement when defendants obstruct or attempt to obstruct justice with respect to the investigation.

[00:12:44] Speaker 03:
And the district court did not clearly err in finding that the defendant's conduct was sufficiently likely to thwart the investigation.

[00:12:52] Speaker 03:
If I could briefly just begin with the standard of review.

[00:12:58] Speaker 03:
We, in our view, the standard of review is clear error, even as to the ultimate question of whether the enhancement applies.

[00:13:06] Speaker 03:
But we're here dealing with the subordinate factual determination of whether conduct was sufficiently likely in the circumstances of a particular case to, in some way, thwart the investigation.

[00:13:19] Speaker 03:
That is a subordinate fact-bound classic district court question on which this court should defer to the district court's determination

[00:13:29] Speaker 03:
unless it's clearly erroneous.

[00:13:31] Speaker 03:
In this case, the district court's determination that it wasn't inevitable that the defendants' plan of concealing the gun would be inevitably discovered.

[00:13:52] Speaker 03:
In the circumstances of this case, recall that the defendant has just completed a

[00:13:58] Speaker 03:
road rage incidents in which he's threatened victims with a gun.

[00:14:02] Speaker 03:
And it's reasonable, of course, that police will shortly be on the scene.

[00:14:06] Speaker 03:
And so his plan, which is a plausible one, is to quickly pull over, stash the gun as deeply into the trunk as he can, underneath the back cover and behind the spare tire, get back on the road.

[00:14:18] Speaker 03:
And then when the police pull him over, try to misdirect their attention by having a knife in his hand.

[00:14:24] Speaker 01:
Well, Counsel, your recitation so far, I agree with you on the standard review mostly.

[00:14:29] Speaker 01:
doesn't deal with the very unusual facts of this case that make it seem, at least to me, that the gun's discovery was inevitable, certainly inevitable.

[00:14:42] Speaker 01:
You have a really unusual confluence of facts here, don't you, with the Strickland's involved and the play-by-play to the dispatch.

[00:14:52] Speaker 01:
Can you account for how your position

[00:14:57] Speaker 01:
We should endorse your position on the facts, given all of the facts here?

[00:15:02] Speaker 03:
Well, the facts that determine the likelihood of the defendants, call it likelihood of success, of thwarting the investigation in some way, should be determined based on the facts at the time that the defendant makes his decision to obstruct justice by concealing the gun.

[00:15:18] Speaker 03:
And at that time, he

[00:15:21] Speaker 03:
His plan seems to be to misdirect the police when they pull him over to his own immediate person by gesturing with the knife instead of a gun and denying that he has a gun, and also hoping that their attention would focus on his immediate person and the passenger compartment of the car, because it will appear that he's been on the road the entire time.

[00:15:43] Speaker 03:
And in fact, that's what happened.

[00:15:45] Speaker 03:
The police searched the passenger compartment of the car, and their attention was only

[00:15:51] Speaker 03:
switched to the trunk and to a thorough search of that trunk when the defendant's child spilled the beans and told them that that's where the gun was.

[00:16:00] Speaker 03:
But that fact shouldn't be considered because at the time that the defendant hit the gun, he wouldn't have known that that would occur.

[00:16:09] Speaker 04:
is determined from the defendant's perspective at the time of the defendant's conduct?

[00:16:15] Speaker 04:
Is that clear from the language of the guideline that that's how we address it?

[00:16:19] Speaker 04:
Or is it an objective test based on everything that's known?

[00:16:24] Speaker 04:
What was the likelihood that this would support the investigation?

[00:16:30] Speaker 03:
So I think both of those things are on.

[00:16:33] Speaker 03:
An objective view of the likelihood based on the facts that, as the defendant perceives them to be,

[00:16:39] Speaker 03:
at the time of the extracts.

[00:16:41] Speaker 03:
In other words, imagine a hypothetical where the police have a drone that's in the sky, the defendant doesn't know it, and so they see him hide the gun incredibly well in a secret compartment or whatever, but the drone sees him.

[00:16:55] Speaker 03:
I still think that the enhancement should cover that conduct.

[00:16:59] Speaker 04:
Okay, so it's likelihood of thwarting based on what the defendant knows when he engages in the conduct

[00:17:09] Speaker 04:
that's an issue.

[00:17:10] Speaker 04:
Is that right?

[00:17:11] Speaker 03:
Right.

[00:17:11] Speaker 04:
That's how we're arguing it.

[00:17:13] Speaker 04:
Are there cases making that clear?

[00:17:16] Speaker 04:
Is the language of the guidelines so clear on that point?

[00:17:20] Speaker 03:
I don't know that there's a specific case that lays that out.

[00:17:24] Speaker 03:
And I think we would argue that the purpose and the principle of the guideline, which is to provide for a modest enhancement when defendants act culpably in obstructing justice and when there's

[00:17:39] Speaker 03:
some sufficient nexus between their conduct and the investigation.

[00:17:46] Speaker 03:
And in this case, that nexus is extremely clear.

[00:17:48] Speaker 03:
The investigation, even, we have an alternative argument that the investigation had already begun, but even if it hadn't, it was about to, and it was arbitrary from the defendant's, from the perspective of the defendant's culpability about whether the investigation had begun or not, because his actions are the same.

[00:18:07] Speaker 04:
key point because the likelihood of thwarting is pretty low if you consider the fact that the victim had seen the defendant open his trunk.

[00:18:22] Speaker 04:
That had stopped and opened his trunk.

[00:18:25] Speaker 04:
Then the likelihood of thwarting is slim.

[00:18:28] Speaker 04:
Maybe it's enough.

[00:18:29] Speaker 04:
We'd have to decide that if that's the legal test.

[00:18:33] Speaker 04:
But if it's based on what the defendant knew,

[00:18:37] Speaker 04:
then the defendant did not know that he was observed stopping and opening the trunk.

[00:18:43] Speaker 04:
And then the likelihood of thwarting would be significantly greater, I would think.

[00:18:47] Speaker 04:
So it's important to know what facts we consider in determining the likelihood of thwarting.

[00:18:54] Speaker 04:
But there's no, you're relying on your reading of the language of the guideline, not a particular case that says this, am I correct?

[00:19:02] Speaker 03:
I think that's right, Your Honor.

[00:19:04] Speaker 03:
I agree with that formulation.

[00:19:06] Speaker 03:
I think it's the only one that makes sense in terms of the purpose of the guideline in covering conduct where the defendant's culpability is established and to show that there's a nexus between the defendant's conduct and the investigation.

[00:19:24] Speaker 03:
That seems to be the purpose of the obstruction of justice enhancement.

[00:19:28] Speaker 03:
And so it makes sense to...

[00:19:31] Speaker 03:
to consider the question based on what the defendant's awareness is.

[00:19:34] Speaker 04:
So for example, if a defendant asked a colleague to get rid of some evidence at a house, and he was being wiretapped at the time, so there was zero chance that this taking whatever evidence was out of the house would successfully thwart the investigation, we would consider the fact

[00:20:00] Speaker 04:
you're saying we wouldn't consider the fact that he was being wiretapped at the time in determining the likelihood of it working.

[00:20:08] Speaker 03:
Correct, Your Honor.

[00:20:08] Speaker 03:
That's our view.

[00:20:10] Speaker 03:
And it's clear that that's the case outside the context of Comet 1.

[00:20:15] Speaker 03:
There are cases that we've referred to in our brief where defendants were almost exactly the hypothetical, excuse me, that Your Honor is describing.

[00:20:23] Speaker 03:
And defendants try to say, I shouldn't be held responsible for obstructing justice because

[00:20:28] Speaker 03:
The police were actually helped by the fact that I called my friend because now they know where the gun is because they overheard my call.

[00:20:35] Speaker 03:
And the courts have rejected that.

[00:20:37] Speaker 03:
I can see that this is outside the context of No.

[00:20:40] Speaker 03:
1, but I think it makes clear that the enhancement applies generally when defendants obstruct or attempt to obstruct justice.

[00:20:51] Speaker 03:
And it doesn't make sense

[00:20:54] Speaker 03:
given the modest two-level enhancement that's designed to deter.

[00:20:59] Speaker 01:
I don't know what modest has to do with it.

[00:21:02] Speaker 01:
I mean, it's an enhancement, right?

[00:21:04] Speaker 01:
I mean, it's going to have sentencing consequences.

[00:21:07] Speaker 01:
So we don't need to consider whether it's two or not.

[00:21:10] Speaker 01:
That doesn't inform the analysis.

[00:21:11] Speaker 01:
Would you agree?

[00:21:13] Speaker 03:
I guess I'm using that adjective to try to distinguish, I guess,

[00:21:20] Speaker 04:
It's not so modest that they don't want to bring this issue up.

[00:21:24] Speaker 04:
Sure.

[00:21:24] Speaker 04:
That's right.

[00:21:25] Speaker 03:
It's an enhancement.

[00:21:26] Speaker 01:
It matters.

[00:21:27] Speaker 01:
It just doesn't matter.

[00:21:28] Speaker 01:
It's an enhancement, and it matters because we're here.

[00:21:31] Speaker 03:
Yes.

[00:21:31] Speaker 03:
I agree with that.

[00:21:33] Speaker 03:
I guess I'm saying that the analysis might not be the same if we were talking about a conviction for obstruction of justice.

[00:21:38] Speaker 03:
But by reminding that it's an enhancement, I'm only trying to bring back to the key question of the defendant's culpability, whether it warrants an enhancement

[00:21:49] Speaker 03:
when the defendant acts culpably, even if facts unknown to him, make it so that his obstruction is not ultimately going to prevent the police from moving forward in the investigation.

[00:22:02] Speaker 03:
In almost every case that ends up before the court getting the enhancement, there's going to be some point at which the obstruction is ineffective.

[00:22:16] Speaker 03:
And so the most sensible way to interpret

[00:22:19] Speaker 03:
The likelihood of success, I think, is as the defendant perceives them to be.

[00:22:37] Speaker 03:
If I could briefly address the government's alternative argument.

[00:22:40] Speaker 03:
Now, we do think that the most straightforward way for the court to resolve this case is to find that there was no clear error in the district court's finding that the conduct was sufficiently likely to thwart the investigation.

[00:22:53] Speaker 03:
And in raising our alternative argument, we can see that we didn't make this argument below.

[00:22:58] Speaker 03:
But we're not asking the court to find new facts.

[00:23:02] Speaker 03:
We're only asking the court to proceed on the facts that I think are agreed on by both

[00:23:07] Speaker 03:
the government and the defendant in this case, which is that at the time the defendant hid the gun, the victims were actively describing his conduct to the dispatcher.

[00:23:19] Speaker 01:
Well, is there any real dispute that the correct reading of this record is that everyone understood that we're dealing with note one, and note one is about pre-investigation, the specific component of the likely to thwart standard in note one, and we're in pre-investigation land?

[00:23:37] Speaker 03:
I think that's right.

[00:23:38] Speaker 03:
That's fair to say that the arguments below were directed at the application of note one, and that's what the district court found.

[00:23:44] Speaker 03:
So we're not saying that the district court resolved or reached the alternative argument.

[00:23:50] Speaker 03:
But this court can reach that alternative argument and has before.

[00:23:53] Speaker 01:
Well, but your alternative argument depends on us finding different facts.

[00:23:58] Speaker 01:
And facts remain static for purposes of our review.

[00:24:02] Speaker 01:
So we would have to endorse the conclusion

[00:24:05] Speaker 01:
that this was not pre-investigation, this was during an investigation.

[00:24:09] Speaker 01:
Doesn't your alternative argument proceed from that factual premise?

[00:24:13] Speaker 03:
It does, but the factual premise that we're asking the court to accept is the one that is agreed upon, which is that the victims were actively describing the conduct to dispatch at the time that the defendant hit the gun.

[00:24:30] Speaker 03:
And if the court thinks that that's not sufficient,

[00:24:35] Speaker 03:
to establish the beginning of an investigation and would have to find additional facts, then we agree that it shouldn't reach the alternative question.

[00:24:44] Speaker 03:
But in our view, it's clear that an investigation in the context of a reactive case where someone reports that there's been a road rage incident, they've pointed a gun at me, and the dispatch receives that report and tells the victims to describe

[00:25:02] Speaker 03:
ongoing actions and location of the defendant, that's an investigation.

[00:25:07] Speaker 03:
And that's all we're asking the court to find.

[00:25:09] Speaker 04:
What are the facts that you think are not disputed regarding the timing of the call to dispatch and when the victims saw the defendant open his trunk, stop and open his trunk?

[00:25:24] Speaker 03:
I think it's undisputed that the call to dispatch occurred before the trunk.

[00:25:30] Speaker 03:
The defendants

[00:25:32] Speaker 03:
It's not just undisputed in the testimony of the witness and in the pre-sentence report, but also in the defendant's opening brief, in their recitation of the facts, and in their argument, they've relied on the fact that the victims were actively describing his conduct to dispatch at the time of when the defendant stopped, opened the trunk, and buried the gun inside of it.

[00:25:54] Speaker 03:
So that's the fact that we're relying on as saying that's enough for an investigation.

[00:25:58] Speaker 04:
That's the recitation of facts in the opening brief on appeal.

[00:26:01] Speaker 04:
Correct.

[00:26:04] Speaker 03:
And that argument is made in the argument section of the brief on pages 16 and 19 of the opening brief.

[00:26:14] Speaker 03:
And so our alternative argument doesn't require the court to find new facts.

[00:26:19] Speaker 03:
We're not asking the court to do new fact finding, but only to agree that based on that act of describing to dispatch of the defendant's conduct is enough to be

[00:26:31] Speaker 03:
the beginning of an investigation.

[00:26:33] Speaker 03:
Because when a person does that, that's because the dispatch is seeking evidence about what happened in the conduct of their report.

[00:26:47] Speaker 01:
Is it correct that your main case on this alternative point is Norman?

[00:26:52] Speaker 01:
Yes.

[00:26:54] Speaker 01:
And how should we be thinking about the fact that that comes before the 2006 amendments when there was

[00:27:00] Speaker 01:
No calculated and likely test?

[00:27:03] Speaker 03:
That's correct.

[00:27:03] Speaker 03:
So Norman isn't directly applicable.

[00:27:05] Speaker 03:
It's helpful to us in the sense that the guideline at that time required that the conduct be, quote, during the investigation.

[00:27:14] Speaker 03:
And so the court found that an investigation that was, if I could just briefly finish this point, that it's at a similar point at which the police have been summoned to an investigation,

[00:27:27] Speaker 03:
And that's all that had happened at the time that the defendant was concealing the evidence.

[00:27:31] Speaker 03:
And this court found that that was satisfied during the investigation language that governed at that time.

[00:27:40] Speaker 04:
Thank you.

[00:27:42] Speaker 03:
Time's expired.

[00:27:42] Speaker 03:
Thank you, counsel.

[00:27:54] Speaker 00:
Beginning with the government's alternative theory,

[00:27:57] Speaker 00:
Their first problem is that if they're proceeding under the theory that the passive receipt of information by dispatch is equivalent to investigation, they run headlong into the fact that that's not what investigation means in the guidelines.

[00:28:11] Speaker 00:
It's not the ordinary meaning of investigation, and the guidelines uses a different word to describe the passive receipt of information.

[00:28:18] Speaker 00:
It uses detection.

[00:28:19] Speaker 00:
So they lose under that theory that passive receipt equals investigation.

[00:28:24] Speaker 00:
They also lose under the alternative theory that dispatch was somehow directing them to do this and that therefore they've been deputized.

[00:28:33] Speaker 00:
They lose for the factual reason that that fact is not established in this record as to the chronology of when and if that direction happened.

[00:28:41] Speaker 00:
They also lose.

[00:28:44] Speaker 04:
Let me make sure I understand.

[00:28:47] Speaker 04:
Did not the victim testify that dispatch told him to follow the car?

[00:28:55] Speaker 04:
No.

[00:28:55] Speaker 00:
Jacob Strickland didn't testify at all.

[00:28:58] Speaker 00:
His witness statement, which defense counsel read from, said he talked to various people and they were directing him what to do.

[00:29:05] Speaker 00:
And defense counsel's interpretation was they were directing him to get to the right person.

[00:29:11] Speaker 00:
And nobody contradicted that.

[00:29:12] Speaker 00:
Because again, this fact was never of importance to anyone.

[00:29:19] Speaker 04:
That's interesting.

[00:29:20] Speaker 04:
So the testimony was that he was directed to do something.

[00:29:25] Speaker 04:
And you're saying it wasn't to follow the defendant.

[00:29:29] Speaker 00:
It was to talk to somebody else at the... The person with the victim statement in his hand interpreted that way, and the prosecutor didn't contradict him.

[00:29:39] Speaker 04:
The prosecutor also didn't contradict... He didn't interpret it in what way?

[00:29:43] Speaker 00:
Sorry?

[00:29:44] Speaker 04:
He said the person reading the statement interpreted the statement to mean what?

[00:29:48] Speaker 00:
that he was being directed as to who the right person was to talk to.

[00:29:52] Speaker 00:
The quote from the statement was, I called and talked to a couple people on the phone.

[00:29:59] Speaker 00:
And what also wasn't disputed was defense counsel said that directing was happening after the gun had been hidden, and the prosecutor didn't contradict that either.

[00:30:10] Speaker 00:
The theory is also legally flawed under this court's reasoning in Peralt, which was the case in which a Catholic priest fled to Morocco when he found a reporter was investigating sexual misconduct allegations.

[00:30:24] Speaker 00:
The district court found obstruction on that ground.

[00:30:27] Speaker 00:
This court said that disregards the plain language of the guidelines, which requires an investigation by a governmental entity.

[00:30:36] Speaker 00:
And so they affirmed on other grounds because he fought extradition.

[00:30:39] Speaker 00:
And at that point, an investigation was clearly underway.

[00:30:42] Speaker 04:
Quickly, we'd like to respond to the issue of what information should be used to determine the likelihood of thwarting.

[00:30:55] Speaker 04:
Is it what the defendant knows at the time of his conduct or what was, in fact,

[00:31:02] Speaker 04:
the situation at the time of this country.

[00:31:04] Speaker 00:
I think the language likely to support clearly denotes an objective standard.

[00:31:12] Speaker 02:
Is it your position that any time the authorities find what they were looking for, therefore it was not to support the investigation?

[00:31:27] Speaker 00:
No, not at all.

[00:31:28] Speaker 00:
If this gun had been extremely carefully hidden, if they'd had to dismantle the car, if he'd thrown it in the brush and it took three hours for them to find it, then that's the sort of conduct that would have been likely to thwart.

[00:31:43] Speaker 02:
What about Mike?

[00:31:45] Speaker 02:
Any time they find it in the situation we had, therefore it could not have been used to thwart, even though the defendant thought he was hiding it as good as he could.

[00:31:57] Speaker 00:
Well, I think one of the problems with a subjective standard is the defendant obviously is always hoping that this is going to not be found.

[00:32:07] Speaker 00:
But the fact that it's found doesn't determine the question.

[00:32:10] Speaker 00:
This is always going to be a hypothetical based on the likelihood of the conduct.

[00:32:15] Speaker 04:
So your view of the wiretap example I gave when the defendant tells a colleague to hide something,

[00:32:25] Speaker 04:
that would not be likely to thwart the investigation if the police happened to be unbeknownst to the defendant, of course, being wiretapped at the time.

[00:32:38] Speaker 04:
You would say in that circumstance there was no likelihood that it would thwart the investigation because the police were listening.

[00:32:46] Speaker 04:
And so, because that's similar to what's here.

[00:32:51] Speaker 04:
If he did not know that anyone had observed him stop and open his trunk,

[00:32:56] Speaker 04:
There'd be, from that perspective, there would be a likelihood of thwarting.

[00:33:02] Speaker 00:
I think it's a difficult question that you pose, Judge Hartz.

[00:33:05] Speaker 00:
And I don't think it's a question that's at issue here.

[00:33:07] Speaker 00:
The government would have had the burden to show, if they're right, that it matters what the defendant knew at this point, then it was their burden to show what he knew.

[00:33:19] Speaker 00:
Well, no.

[00:33:20] Speaker 00:
Yeah, maybe.

[00:33:21] Speaker 00:
So it seems to me that when you

[00:33:26] Speaker 00:
You know, they'd only gone half a mile.

[00:33:28] Speaker 00:
The Stricklands could see him.

[00:33:29] Speaker 00:
He then passed them as he, when he finished the gun, when he finished putting the gun in the trunk, he drove right by them again.

[00:33:37] Speaker 00:
And so on the facts of this case, it seems highly unlikely that the defendant didn't at least know that the Stricklands had observed him.

[00:33:47] Speaker 00:
But it's an objective standard of likelihood to thwart.

[00:33:53] Speaker 00:
Thank you.

[00:33:54] Speaker 00:
Thank you.

[00:33:55] Speaker 04:
Case is submitted.