[00:00:00] Speaker 01:
morning is 24-6130, United States v. Lynn.

[00:00:09] Speaker 01:
Council for Appellant, if you would make your appearance and proceed, please.

[00:00:13] Speaker 02:
Good morning.

[00:00:14] Speaker 02:
If it may please the Court, my name is Matthew Brissenden for the Appellant, Mr. Lynn.

[00:00:19] Speaker 02:
I'd like to start, if I could, by focusing on the court's pretrial ruling.

[00:00:24] Speaker 02:
Because I think at its heart, this ruling raises an important question of law.

[00:00:28] Speaker 02:
And that is whether a person can knowingly conspire to distribute a controlled substance if they don't know the substance they are dealing with is, in fact, controlled under federal law.

[00:00:40] Speaker 02:
And we respectfully submit that the answer to that question is no for two.

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The first being the elements of the underlying substantive offense, 21 U.S.C.

[00:00:50] Speaker 02:
841.

[00:00:52] Speaker 02:
As the Supreme Court emphasized recently in Rouen, that statute employs a knowing mens rea that applies to each and every element of the offense.

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And most importantly, as the Court emphasized in Rouen, the purpose of that mens rea standard is to separate innocent from morally blameworthy conduct.

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The second reason and the second argument that we've made

[00:01:13] Speaker 02:
is not withstanding the elements of the underlying substantive offense, the government here, as they must, concedes that the defendant was convicted of a conspiracy.

[00:01:23] Speaker 02:
They concede that conspiracy is a specific intent crime, and that under this court's holding and the standard of the United States v. Blair, it requires a, quote, conscious purpose to do wrong, not only with knowledge of the thing done, but a determination to do it with bad intent or with an evil purpose or motive.

[00:01:44] Speaker 02:
And so in my mind it raises the question, how could it be said that a person who is dealing with a substance or a chemical can be said to be acting with a bad intent or an evil motive or purpose if they don't understand that substance is controlled under federal law?

[00:01:59] Speaker 04:
Okay, well what if they know that it's illegal?

[00:02:01] Speaker 04:
They just don't know that they haven't read section 846.

[00:02:05] Speaker 02:
I would entirely concede, Your Honor.

[00:02:06] Speaker 02:
I'm not suggesting that there is an element of willfulness equivalent to, say, in a tax case, right?

[00:02:13] Speaker 02:
Willfulness is sort of a tricky word, right?

[00:02:15] Speaker 02:
It can mean sort of different things in different contexts.

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At its highest, it means you have to have a laser, lawyer-like understanding of the statute involved.

[00:02:23] Speaker 02:
And I'm not suggesting that at all.

[00:02:25] Speaker 02:
I'm suggesting that it does require a mens rea of at least knowing that you're engaged in bad actions.

[00:02:31] Speaker 04:
What if I pick up an illegal substance and I say, well, I think it's legal, but I don't put it in my car.

[00:02:42] Speaker 04:
What I do is I go get a truck and I make it look like an Amazon truck.

[00:02:48] Speaker 04:
and I ship it in an Amazon truck, viewing the evidence favorably to the government, why isn't that at least a reasonable inference that I knew that there was something shady about it?

[00:03:00] Speaker 04:
Otherwise, I'd have just put it in my car.

[00:03:02] Speaker 02:
And I don't mean to split hairs, but obviously my client is not the individual transporting the drugs within the Amazon.

[00:03:08] Speaker 04:
Nobody's putting it in Mr. Yu's truck.

[00:03:10] Speaker 02:
Yes, it's alleged that on a number of occasions he helped to load the Amazon man, so you're absolutely correct about that.

[00:03:16] Speaker 02:
What I would acknowledge, Your Honor, I'm not suggesting the government had no facts from which it could argue an inference of the intent.

[00:03:23] Speaker 02:
But the problem is, it was for the jury to determine whether or not that intent existed.

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And the court's pretrial ruling, essentially taking this defense off the map, it prevented the attorneys from advancing the argument and advancing evidence that might support that argument.

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that Mr. Lin did not, in fact, know.

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So my point is, not that the government could not introduce any evidence at all from which one might argue or infer he had that intent.

[00:03:50] Speaker 02:
I would submit there's very little of it.

[00:03:52] Speaker 02:
Really, it comes down to the Amazon.

[00:03:54] Speaker 01:
I don't understand what you do.

[00:03:56] Speaker 01:
what you do with McFadden.

[00:03:58] Speaker 01:
I mean, McFadden seemed to be fairly clear in saying that it offered two ways, as it relates to the underlying offense of 841, that you could know that it could be illegal.

[00:04:09] Speaker 01:
One, that you knew it was on the registry, the CSA.

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Two, that you knew the substance

[00:04:16] Speaker 01:
He knew it was marijuana.

[00:04:18] Speaker 01:
I mean, there's no dispute about that.

[00:04:20] Speaker 01:
And so if you combine that, that he knew it was marijuana with the fact that he's loading it onto an Amazon truck, I mean, in terms of unlawfulness, tell me what I'm missing.

[00:04:33] Speaker 01:
I mean, number one, focus on McFadden and tell me why the fact that he knows it is marijuana is not enough in this case.

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And I recognize that this court has a history of following DECTA in Supreme Court cases.

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You better believe it.

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I understand that.

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What I will say is this is a case where I think that DECTA has been substantially enfeebled and eroded by the subsequent decisions of the Supreme Court.

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Number one, starting with Justice Roberts' concurrence in that decision, specifically pointing to this exact sentence and saying,

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This should not be treated as controlling law.

[00:05:17] Speaker 02:
This is incorrect.

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And the reason that he articulates is that, in essence, we're not dealing with what is a mistake of law.

[00:05:26] Speaker 02:
This isn't really a mistake of law defense.

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If Mr. Lane were to say, I had no idea that it's illegal to distribute controlled substance, that's a mistake of law defense.

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It's not a valid defense.

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But the defense here was, I didn't know this particular substance was scheduled.

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And that is a mistake of fact.

[00:05:48] Speaker 03:
Under the court's analysis, yes, Your Honor.

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Isn't it scheduled under state law?

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I mean, it's only legal in Oklahoma.

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medical marijuana.

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So it is a controlled substance under state law as well as federal law.

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I'm not disputing the fact that it is, there's obviously regulations in place within the state of Oklahoma as to how it may be limited manner in which it may be distributed as well as obviously it's a scheduled substance.

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So isn't there plenty of evidence that it was being distributed illegally when you got a fake Amazon truck

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and marijuana is in trash bags or boxes from some large store.

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So, I mean, the question and the focus of our defense has always been what did Mr. Lin understand, right?

[00:06:37] Speaker 03:
Okay, but the facts are, the question is what do you know factually?

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Going into a fake truck, putting in trash bags, putting in boxes from stores.

[00:06:47] Speaker 03:
It's not anything that looks like a medical marijuana distribution.

[00:06:52] Speaker 02:
What I would say is this is an unusual case in the sense that we're dealing with a defendant here who, by all indication, didn't have any exposure or sophistication or understanding of the regulatory scheme here, who didn't speak English, who worked as an intern on this farm for five months, surrounded by other farms in Oklahoma doing exactly the same thing, who's filling out regulatory paperwork, apparently, to comply with state law.

[00:07:19] Speaker 02:
So Your Honor, I understand.

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There's an argument the government can make that a jury should have found under these facts there was enough here to infer that Mr. Lidden knew.

[00:07:28] Speaker 02:
But a jury might not have accepted that inference.

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And that's my point.

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It's that we were constrained from advancing a legal argument and a legal defense that should have been a valid defense and that the jury was never permitted to consider.

[00:07:42] Speaker 04:
I want to follow up on the chief's question about McFadden.

[00:07:47] Speaker 04:
Assuming that Ruan, Ray Hafe, Chief Justice Roberts concurrence and McFadden, all of those call into question the second rationale on McFadden, how do you distinguish Judge Hart's

[00:08:02] Speaker 04:
published opinion in U.S.

[00:08:04] Speaker 04:
versus Chymo with regard to the knowledge you may not know that fentanyl is a controlled substance, the panel said, but that if you know it is fentanyl, that is enough, and he applied, of course, the second rationale in McFadden.

[00:08:23] Speaker 02:
One thing I do want to make sure is there's two levels that I'm making very clear is that we sort of have two levels of argument here, one relating to 841 and one relating to 846.

[00:08:31] Speaker 04:
I'm only asking about the 841 argument.

[00:08:34] Speaker 02:
So I would acknowledge, Your Honor, that the prior panel rule presents an obstacle.

[00:08:39] Speaker 02:
I'm confident in our legal reasoning, and I firmly believe that under rehab, this was not

[00:08:44] Speaker 02:
But we have preceded Shavu.

[00:08:48] Speaker 02:
Yes, but I acknowledge that under the prior panel rule, that is a problem for sort of our first tier of argument.

[00:08:55] Speaker 02:
It presents an obstacle.

[00:08:56] Speaker 04:
Do you have a counter argument?

[00:08:58] Speaker 02:
Well, what I would say is this, is that if the prior panel rule works against us with respect to that first level of argument,

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I think it works in our favor with respect to the specific argument relating to the mens rea of 846, the conspiracy statute.

[00:09:14] Speaker 02:
Because I think this court's decisions in Weeks and in Blair, I think they support that argument in particular, that there is a mens rea standard that requires a bad purpose.

[00:09:28] Speaker 02:
And the argument that I'd like to suggest to the court is that it's impossible to act with that bad purpose if you legitimately don't know.

[00:09:35] Speaker 02:
And I understand the court would say, well, did he really not know?

[00:09:38] Speaker 02:
If you legitimately do not know it's a controlled substance, that should be public policy.

[00:09:43] Speaker 02:
What if you know it's marijuana?

[00:09:47] Speaker 02:
that marijuana is a controlled substance, that as well should have been a defense.

[00:09:53] Speaker 02:
Just as an example, I am an attorney.

[00:09:55] Speaker 02:
I think I'm relatively well-educated.

[00:09:57] Speaker 02:
But when I sit down with the DA's schedules of controlled substances, we're talking about hundreds upon hundreds of chemicals and drugs and compounds, many of which I've never heard of.

[00:10:06] Speaker 02:
And I can't imagine that the average lay person has heard of them.

[00:10:08] Speaker 02:
That's not this case.

[00:10:09] Speaker 02:
It is not this case.

[00:10:11] Speaker 02:
And you're right.

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This case deals with marijuana.

[00:10:13] Speaker 02:
But the legal principle underlying it has broader implications.

[00:10:17] Speaker 02:
If you were to hand me a bottle of Minorex and ask me to deliver it to my neighbor, I would have no idea that I'm handling a Schedule I controlled substance, let alone that I'm committing a federal felony that could subject me to 20 years in prison.

[00:10:32] Speaker 02:
In Rouen, the Supreme Court said, wrongdoing must be conscious to be criminal.

[00:10:36] Speaker 02:
And the government's construction of 846 makes a mockery out of that legal principle.

[00:10:42] Speaker 04:
Did the court exclude the defendant from arguing that he did not know this was a controlled substance, which I think you're implying, because I thought the argument was that he was precluded from arguing that it is in compliant with Oklahoma law.

[00:11:05] Speaker 02:
Both.

[00:11:06] Speaker 02:
the judge's pre-trial ruling, both precluded references to state laws, potentially confusing, as well as what the court was framing a mistake of law defense, which for the reasons I'm articulating, I don't believe it actually was a mistake of law defense.

[00:11:20] Speaker 02:
But both of those were taken off the table at the outset by the court's pre-trial ruling.

[00:11:25] Speaker 04:
Well, if he, just by devil's advocate, if the defendant is precluded from arguing that what he was doing he thought was in compliant with Oklahoma law to follow up on Joe Seymour's question, you know, what does that have to do with whether or not he was in violation of 846?

[00:11:46] Speaker 04:
Compliance with Oklahoma, first of all, shipping marijuana out of state, even if it's not medical marijuana is obviously

[00:11:55] Speaker 04:
blatant violation of Oklahoma law, but putting that aside, why does compliance with Oklahoma law have anything to do with whether or not he was in violation of 846?

[00:12:07] Speaker 04:
And why wasn't that, particularly under U.S.

[00:12:13] Speaker 04:
versus T and the like, you know, maximizing the probative or minimizing the probative value and maximizing the danger of unfair prejudice, why wasn't that at least within the judge's discretion to exclude that?

[00:12:24] Speaker 02:
So listen, I obviously concede as a must that it wasn't a legal defense to say I was in compliance with Oklahoma state law.

[00:12:30] Speaker 02:
And I understand that.

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But marijuana is in a strange position right now in our culture, in our country.

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And the way that it's been positioned lends itself to confusion, especially for people who are not sophisticated.

[00:12:43] Speaker 02:
It's easy in many states to go down the street, and there's marijuana dispensaries everywhere.

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And the average person might not well understand that that's still a federal crime going on within, you know, but for the grace of federal prosecutors.

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everybody operating those businesses and paying taxes on those businesses could be prosecuted.

[00:13:00] Speaker 02:
So it's relevant factually.

[00:13:02] Speaker 02:
Not legally, Your Honor.

[00:13:04] Speaker 02:
It's not relevant.

[00:13:05] Speaker 02:
It didn't create a defense.

[00:13:06] Speaker 02:
But I feel the defense counsel should have been able to explore it because it supported the inference that the defendant really didn't understand that he was doing something prohibited by federal law.

[00:13:18] Speaker 02:
I might say I have a little bit of time remaining.

[00:13:20] Speaker 02:
I'm happy to answer any further questions by the court.

[00:13:22] Speaker 02:
Otherwise, I will respect the resolution.

[00:13:36] Speaker 00:
May it please the court, Stephen Craig on behalf of the United States.

[00:13:40] Speaker 00:
One thing I will agree with Mr. Grissom and then on is I think the key question here is what is the mens rea required for a drug conspiracy for a violation of Title 21, Section 846?

[00:13:54] Speaker 00:
Starting probably with the harvest argument for me, talking about 846 and specifically talking about this court's decision in weeks.

[00:14:04] Speaker 00:
Wherein weeks this court said, an agreement with others that certain activities be done without knowledge.

[00:14:10] Speaker 00:
At the time of the agreement, the activities violate the law.

[00:14:13] Speaker 00:
It's insufficient to establish conspiracy.

[00:14:17] Speaker 00:
To avoid any context, that is a very difficult hurdle for the government to overcome.

[00:14:23] Speaker 00:
But when viewed in context, both in the context of what the facts and the underlying object of the conspiracy in Weeks was, as well as cases like this court's decision in Blair and the Supreme Court's decision in Piola, it shows why Weeks is not the insurmountable hurdle for us.

[00:14:42] Speaker 00:
And that's because where Mr. Lynn's counsel leaves off with Blair is what the court said right after that.

[00:14:49] Speaker 00:
It quotes Piola.

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to say that the general conspiracy statute, which is what all of these have been dealing with, 18 U.S.C.

[00:14:56] Speaker 00:
371, offers no textual support for the proposition that to be guilty of conspiracy, a defendant must in effect have known that his conduct violates federal law.

[00:15:07] Speaker 00:
Instead, a natural reading of these words would be that since one can violate a criminal statute by engaging in the forbidden conduct, a conspiracy to commit the offense is nothing more than an agreement to engage in the prohibited conduct.

[00:15:21] Speaker 00:
You can juxtapose Blair and the ultimate holding in Blair with Weeks and the ultimate holding in Weeks.

[00:15:28] Speaker 00:
In both instances, the defendants said that their pleas of guilty were not knowing involuntary because they did not know that it would be illegal under federal law.

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In Weeks, this court said that would have provided a defense.

[00:15:41] Speaker 00:
But in Blair, this court said that did not do anything to undermine the factual basis.

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The difference between the two is that Weeks involved a conspiracy to commit security fraud, which this court explained in Wegner requires a willful mens rea.

[00:15:58] Speaker 00:
In Blair, the conspiracy was a conspiracy to commit sports betting, which Blair itself explained required a knowing mens rea.

[00:16:06] Speaker 00:
This all goes back to the ultimate underlying principle that the Supreme Court recognized in Viola, that even Weeks recognized, that the criminal intent necessary for conspiracy is at least the criminal intent necessary for the substantive offense itself.

[00:16:23] Speaker 00:
So ultimately, for a conspiracy under 846, which is governed by general conspiracy law, we look to what the criminal intent is for the underlying offense here in adulation 841.

[00:16:36] Speaker 00:
This gets us into, as Chief Judge Holmes mentioned, McFadden and as Judge Mackrack mentioned, Shamo.

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And McFadden, adopted by Shamo, provides two avenues which the government can take to demonstrate

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The first avenue is proving that whatever substance, whatever unknown substance there is, it's a federally controlled substance.

[00:17:03] Speaker 00:
The defendant knew that it was a federally controlled substance.

[00:17:05] Speaker 00:
The other option is to show that the defendant knew what the substance was, even if the defendant did not know it was federally controlled.

[00:17:13] Speaker 00:
This makes sense because controlled substance, and I think this is one way that Mr. Lin's counsel and I depart, a controlled substance isn't understood in its common and ordinary sense.

[00:17:28] Speaker 00:
The term Controlled Substances Act is defined by Congress in Title 21, Section 802, Lab.

[00:17:38] Speaker 00:
6 as anything that is a Schedule 1, 2, 3, 4, or 5 controlled substance.

[00:17:44] Speaker 00:
Further, Schedule 1 controlled substance, at least to the extent we're talking about marijuana, was also defined specifically by Congress as being a Schedule 1 controlled substance, and that's Title 21, Section 812, Schedule 1, Subsection C, Subsection 10.

[00:18:00] Speaker 00:
And so this isn't unlike Ruan, where we're talking about a defendant applying their conduct to a legal standard and then having to determine whether this is a violation of law or not.

[00:18:13] Speaker 00:
Same thing with section 922 G5 that was discussed and we hate whether a defendant has to figure out whether their conduct makes them an illegal and unlawful citizen.

[00:18:24] Speaker 00:
or I don't know if it's illegal or unlawfully present in the United States, or even Liberota, which dealt with does my possession or does my use of a benefit of a food stamp done in a way that's not authorized, this is simply a subset of a defined term.

[00:18:48] Speaker 00:
This is purely a question of law.

[00:18:52] Speaker 04:
Did the court exclude the defendant from presenting evidence that he did not know that it was a controlled substance?

[00:19:05] Speaker 00:
Primarily was whether or not the defendant or anyone could address what state law is.

[00:19:14] Speaker 00:
There was a discussion about mistake of defense.

[00:19:17] Speaker 00:
My understanding is that Mr. Lin, to the extent that has been raised, is abandoning that he was trying to raise the mistake of law defense.

[00:19:26] Speaker 00:
As to the things that he has said that he's raising, which I don't think were addressed in the motion of the money, at least explicitly, and to the extent they were, weren't ruled upon by the district court.

[00:19:40] Speaker 00:
He actually had the ability to raise the, this is not criminal.

[00:19:45] Speaker 00:
He didn't know it was criminal.

[00:19:47] Speaker 00:
If this court looks at pages 118, essentially through 124 of the record on appeal, these are the jury instructions.

[00:19:54] Speaker 00:
They say things like the jury was instructed that the crime charge was, quote, to conspire with someone to violate federal laws pertaining to controlled substances.

[00:20:03] Speaker 00:
And to convict, they had to find, quote, more persons agreed to violate the federal drug laws.

[00:20:09] Speaker 00:
The defendant had to know the essential objective of the conspiracy.

[00:20:13] Speaker 00:
And the defendant knowingly and voluntarily involved himself in the conspiracy.

[00:20:18] Speaker 00:
Page 120, the degree was instructed that conspiracy, quote, is an agreement between two or more persons to accomplish an unlawful purpose, a kind of partnership in criminal purpose.

[00:20:29] Speaker 00:
Page 121, the evidence must show that members of the alleged conspiracy came to a mutual understanding to try to accomplish a common and unlawful plan.

[00:20:38] Speaker 00:
Ultimately, the jury was instructed that he had essentially that there is an unlawfulness discussion.

[00:20:46] Speaker 00:
And so to say that based on the jury instructions, he was foreclosed from arguing that, I think, would be a misreading of the preliminary order, which coincidentally was a preliminary order.

[00:20:58] Speaker 00:
If there was a question, could I raise this?

[00:21:00] Speaker 00:
That's something that the judge encouraged him to bring up prior to making the argument, which was never done.

[00:21:08] Speaker 00:
To get to the thrust of the motion with regard to state law, I think probably one of our best cases is Cox.

[00:21:21] Speaker 00:
Cox, the Kansas legislature, I think, I would submit, did something that would be an even more affirmative attempt to give a defense to federal law.

[00:21:34] Speaker 00:
than what the Oklahoma legislature did here.

[00:21:37] Speaker 00:
As I think Judge Seymour mentioned, Oklahoma still makes marijuana a controlled substance.

[00:21:44] Speaker 00:
It has allowed for certain authorization processes, but those only provide a defense under state law.

[00:21:51] Speaker 00:
Here, as opposed to Cox, where it said, even if federal law prohibits this, as long as the firearm or the firearm accessory was manufactured in the state of Kansas, federal law essentially doesn't apply.

[00:22:08] Speaker 00:
Here, this court said there was no due process defense that the Kansas state statute would authorize.

[00:22:15] Speaker 00:
The Supremacy Clause of the Constitution essentially forecloses that.

[00:22:19] Speaker 00:
The same is true here.

[00:22:21] Speaker 00:
The Supremacy Clause forecloses any argument that state law would allow Mr. Blinn to possess a controlled substance.

[00:22:29] Speaker 00:
Even when we're talking about Ruan and the exception that acceptance is authorized by the sub-chapter,

[00:22:35] Speaker 00:
which Ruan says the defendant bears the burden of production on, it's as authorized by this sub-chapter, not as authorized by any law.

[00:22:49] Speaker 00:
I know there are several other issues that Mr. Lynn's counsel didn't talk about.

[00:22:53] Speaker 00:
I'm happy to address any of those that are agreed.

[00:22:55] Speaker 01:
Let's focus for a second on the deliberate ignorance instruction.

[00:23:00] Speaker 01:
What is, to use the term that is in the case law, the operant fact that Mr. Lin engaged in deliberate acts to avoid?

[00:23:10] Speaker 01:
What is that fact and what are the deliberate acts?

[00:23:14] Speaker 00:
So Your Honor, I would submit that because the government under McBadden could have proceeded under two theories, the government also could have proceeded under an option that was available to the government was that the substance was controlled.

[00:23:28] Speaker 00:
In fact, in the government's proposed jury instructions where it included this, knowledge of the legality was the operant fact that was included.

[00:23:39] Speaker 00:
As for what facts support that, keeping in mind that this court explained, and among other cases, Del Rio or Dunes, that that determination is made a light most favorable to the government and includes both direct and circumstantial evidence.

[00:23:54] Speaker 00:
Things like the marijuana was placed in the trash bags and boxes.

[00:23:59] Speaker 00:
The fact that the marijuana was placed not only in a fake Amazon van, but also in a granite company van.

[00:24:06] Speaker 04:
In what?

[00:24:07] Speaker 00:
A granite company.

[00:24:07] Speaker 00:
I believe the company was Arch Granite in cabinetry or something along those lines.

[00:24:12] Speaker 00:
And then ultimately the fact that Mr. Lin had claimed to be a management intern whose entire purpose, one of his major purposes was to understand what the law is.

[00:24:25] Speaker 00:
So to say my purpose is to make sure to learn the licensing scheme, but I'm going to not figure out something that I think is probably fairly common knowledge, that marijuana is still a federally controlled substance.

[00:24:40] Speaker 00:
That would be the deliberate ignorance that the instruction would be designed to attack.

[00:24:46] Speaker 00:
Essentially, the defense that he's trying to raise now on appeal.

[00:24:50] Speaker 01:
I take it that the presence of a lot of cash at the scene and the presence of firearms were not necessarily indicative of unlawfulness in this context.

[00:25:06] Speaker 01:
I mean, because given the nature of the marijuana business, which is essentially a cash business now because of

[00:25:14] Speaker 01:
federal restrictions on banking.

[00:25:18] Speaker 01:
They have a lot of cash, and they need, well, in their view, would need guns to protect that cash.

[00:25:23] Speaker 01:
So those things, it strikes me, to the extent that Mr. Lin looks around, would not be indicative of the unlawfulness of the enterprise that they're involved in.

[00:25:34] Speaker 01:
Do you agree with that?

[00:25:35] Speaker 00:
Your Honor, I would respectfully disagree, and the reason why I would disagree is that

[00:25:41] Speaker 00:
But for the very purpose that you said, it's a cash business because it's unlawful under federal law.

[00:25:47] Speaker 00:
Normally, a business would not be operating holding, I believe it was $100,000 in cash in a vacuum sealed container.

[00:25:55] Speaker 00:
The only reason why that's the case, we can say, essentially based on our collective knowledge, is because it's unlawful under federal law.

[00:26:04] Speaker 00:
You cannot use the banking system.

[00:26:06] Speaker 00:
So I would submit that.

[00:26:08] Speaker 00:
that you cannot use the banking system for marijuana transactions because it's unlawful under federal law.

[00:26:16] Speaker 00:
So whether or not it's unlawful under state law, maybe that would be a more questionable presumption, or more questionable, it would be harder to say that.

[00:26:30] Speaker 00:
But the fact that you're keeping a large quantity of cash because you cannot use the banking system

[00:26:35] Speaker 00:
The reason you cannot use the banking system is because it's unlawful under federal law.

[00:26:39] Speaker 00:
So does this court need to say rely on the cash or rely on the gun?

[00:26:44] Speaker 00:
Not necessarily.

[00:26:45] Speaker 00:
I think the trash bags and the fake Amazon ban and the granite company ban get us there.

[00:26:53] Speaker 00:
But regarding the cash, I think the cash probably does go in our favor as well.

[00:27:12] Speaker 02:
Just briefly, I would respectfully disagree with my colleague's characterization of our position with both the court's pretrial ruling and whether or not we have abandoned somehow a mistake of law defense.

[00:27:26] Speaker 02:
My reading of that pretrial decision is that

[00:27:29] Speaker 02:
Defense counsel was instructed not to go anywhere near the issue of whether or not the defendant understood whether or not what he was doing was lawful under federal law, including whether or not he understood that marijuana was a controlled substance.

[00:27:44] Speaker 02:
I think the court was mischaracterizing what should not have been a mistake of law as a mistake of law defense.

[00:27:50] Speaker 02:
So that's my sort of read on that pretrial ruling.

[00:27:54] Speaker 02:
I have to say that I was a little perplexed by the government's position with respect to the jury instructions.

[00:28:02] Speaker 02:
If I understand the government's argument correct, it's that it is not a defense to suggest that you do not understand a substance is controlled under federal law.

[00:28:12] Speaker 02:
And yet, if I heard them correctly, I think they were arguing that under the standard 10th Circuit jury charge,

[00:28:19] Speaker 02:
Defense counsel could have made that argument.

[00:28:21] Speaker 02:
So I'm not sure how you reconcile those two decisions.

[00:28:24] Speaker 02:
Obviously, this jury instruction is based on this 10th Circuit precedent, 10th Circuit's longstanding precedent.

[00:28:33] Speaker 02:
So to suggest that this would have permitted you to make that argument, I think really undercuts the government's

[00:28:38] Speaker 02:
position here.

[00:28:40] Speaker 02:
To be clear, what included the defense counsel for making that argument was the court's pretrial ruling.

[00:28:44] Speaker 01:
What do you say to the fact that it wasn't exactly that, a pretrial ruling, and as is often the case in motion and limiting situations, you can try to raise the issue in the course of the trial.

[00:28:58] Speaker 01:
What made this a final pretrial ruling?

[00:29:01] Speaker 02:
What I'd say, number one, is it certainly was enough to preserve the issue, but number two, throughout the trial,

[00:29:05] Speaker 02:
defense counsel repeatedly bumped up against this rule.

[00:29:08] Speaker 02:
And there are multiple points in the trial where defense counsel started to sort of put his toe into this water.

[00:29:13] Speaker 02:
And the judge pretty firmly said, no, I've ruled on this.

[00:29:16] Speaker 02:
I'm not letting you explore those areas.

[00:29:18] Speaker 02:
So it's not as if defense counsel entirely gave up the fight.

[00:29:22] Speaker 02:
The last thing I wanted to say is that there's been some discussion about evidence that might have supported an inference.

[00:29:29] Speaker 02:
In my view, this question is fundamentally a question, if I'm correct,

[00:29:33] Speaker 02:
It's a constitutional error, right?

[00:29:35] Speaker 02:
The defendant was deprived of his Sixth Amendment right to present a defense.

[00:29:39] Speaker 02:
And fundamentally, that's a Chapman harmless error standard, right?

[00:29:44] Speaker 02:
Under that harmless error standard, it's the government's burden to prove beyond a reasonable doubt that the jury would have reached the same verdict.

[00:29:50] Speaker 02:
It's not enough to say, well, there is this little bit of evidence.

[00:29:53] Speaker 02:
There's this little bit of evidence.

[00:29:54] Speaker 02:
The court needs to be convinced that it didn't contribute to the verdict.

[00:29:58] Speaker 02:
And I would respectfully submit that the government cannot meet that burden.

[00:30:02] Speaker 04:
Are you just to be clear, are you making that argument in connection with your exclusion of the pretrial ruling?

[00:30:07] Speaker 02:
Yes.

[00:30:08] Speaker 02:
Okay.

[00:30:09] Speaker 02:
Unless there's any further questions.

[00:30:10] Speaker 02:
Thank you.

[00:30:12] Speaker 01:
Thank you, counsel, for your arguments.

[00:30:14] Speaker 01:
Cases submitted.