[00:00:00] Speaker 03:
Your argument is United States versus Trevino.

[00:00:02] Speaker 03:
It is Docket 24-2170.

[00:00:06] Speaker 03:
Council, we're ready for your argument when you're ready to give it.

[00:00:10] Speaker 01:
Yes, thank you, Your Honor.

[00:00:12] Speaker 01:
Council, and may it please the court, my name is Shira Keval.

[00:00:15] Speaker 01:
I'm an assistant federal public defender and I represent Delbert Tyler Trevino.

[00:00:20] Speaker 01:
Mr. Trevino should receive a new trial because the district court interfered with his ability to present a defense in violation of the Constitution and an erroneous reliance on federal rule of criminal procedure 12.3.

[00:00:34] Speaker 01:
During closing argument, Mr. Trevino tried to invoke evidence of his redemption of his own firearms from the El Paso, Texas Police Department to undermine the government's proof of mens rea.

[00:00:45] Speaker 01:
It's proof that he knew that his rifle's barrel was under 16 inches, and it's proof that he knew that he was not allowed or that it was illegal for him to acquire ammunition at the time.

[00:00:56] Speaker 01:
Mr. Trevino should have been allowed to continue with that argument.

[00:01:00] Speaker 01:
Instead, the district court sustained the government's public authority objection, ordered him to move on, and instructed the jury that his defense was contrary to law, and this court should reverse.

[00:01:13] Speaker 01:
The crux of the district court's error here was its erroneous determination that Mr. Trevino's proper mens rea defense was actually an unnoticed public authority defense governed by Rule 12.3.

[00:01:25] Speaker 01:
It wasn't.

[00:01:26] Speaker 01:
Mr. Trevino never claimed to be acting pursuant to public authority.

[00:01:30] Speaker 01:
He didn't claim to be acting or believe he was acting on behalf of law enforcement officers, which is the triggering language in Rule 12.3.

[00:01:38] Speaker 01:
He wasn't on some sort of undercover mission.

[00:01:41] Speaker 01:
And the government does not defend the basis of the district court's ruling.

[00:01:46] Speaker 03:
Instead- Can I pause your question here and just ask you?

[00:01:49] Speaker 03:
The exact language that prompted the objection and the sidebar and the court's ruling is in response to defense counsel making the argument, the police gave it back to him.

[00:02:02] Speaker 03:
And if we can't trust that, what can we trust in the United States?

[00:02:07] Speaker 03:
It's all reliance.

[00:02:09] Speaker 03:
I relied on the police.

[00:02:11] Speaker 03:
And that's why I have this.

[00:02:14] Speaker 03:
I assume that the firearm is legal and barrels more than 16 inches because I relied on that sounds an awful lot like an excuse based defense that should be noticed.

[00:02:26] Speaker 03:
Tell me why not.

[00:02:27] Speaker 01:
OK, I think there's a few reasons.

[00:02:29] Speaker 01:
I think right here, if you look at the context,

[00:02:31] Speaker 01:
Mr. Trevino's lawyer was discussing the ammunition charge.

[00:02:35] Speaker 01:
And I know that he mentioned firearms, but it's really important if you read the last couple paragraphs there, that he's responding directly to the government's argument about willfulness and the ammunition charges and that his ability to acquire and possess ammunition and firearms go hand in hand.

[00:02:52] Speaker 01:
Under the government's theory, the only reason that Mr. Trevino would have known that it was illegal for him to possess firearms

[00:02:59] Speaker 01:
And I'm not sure that this is really a valid theory, but we're not challenging it on appeal.

[00:03:02] Speaker 01:
But the only reason that he would have known is because that he wasn't allowed to acquire ammunition is because the New Mexico probation department informed him that that was a condition of his probation.

[00:03:14] Speaker 01:
It wasn't a condition of his probation in Texas.

[00:03:17] Speaker 01:
So New Mexico tells him you're a felon.

[00:03:19] Speaker 01:
You cannot have firearms or ammunition.

[00:03:23] Speaker 01:
Mr. Tramino's testimony is that he's confused about that because he knows he's not a felon.

[00:03:27] Speaker 01:
And that also he knows that Texas is in charge of his case.

[00:03:32] Speaker 01:
It has jurisdiction and it can change his conditions.

[00:03:34] Speaker 01:
And his own testimony was the word trust, that he trusted that whatever needed to be done in Texas had been done because he got these back.

[00:03:43] Speaker 01:
So this is certainly about his ammunition charge.

[00:03:46] Speaker 01:
It's certainly in this exact moment where the objection happens.

[00:03:50] Speaker 01:
It's certainly about his testimony and that word trust.

[00:03:57] Speaker 01:
But I also want to say this, even if it turned out that his argument was, I did not act willfully.

[00:04:05] Speaker 01:
I believed that I was allowed to have ammunition because they told me so.

[00:04:11] Speaker 01:
If that had been his

[00:04:13] Speaker 01:
His theory of defense, in this case, it still would have been a mens rea defense.

[00:04:17] Speaker 01:
I know that it would have looked an awful lot like an equitable estoppel defense, but equitable estoppel has nothing to do with this case.

[00:04:25] Speaker 01:
Equitable estoppel is a technically and highly circumscribed exception to the general rule that ignorance of the law is no excuse.

[00:04:34] Speaker 01:
And it plays no role where you have a willfulness element and ignorance of the law is an excuse.

[00:04:39] Speaker 01:
Because it doesn't matter why Mr. Trevino didn't know that what he was doing was unlawful if he really didn't know.

[00:04:46] Speaker 01:
It doesn't matter if he just didn't know.

[00:04:48] Speaker 01:
It doesn't matter if it's because the police told him so.

[00:04:51] Speaker 01:
It simply doesn't matter.

[00:04:54] Speaker 01:
I will also say that if it were an equitable estoppel defense, it still wouldn't be covered by rule 12.3 and it still wouldn't have a notice requirement.

[00:05:03] Speaker 01:
It's very clear that rule 12.3 only covers the defense of actual or believed exercise of public authority.

[00:05:11] Speaker 01:
Those are really key words for the sort of prototypical public authority defense.

[00:05:18] Speaker 01:
And this circuit, it's the only public authority defense.

[00:05:20] Speaker 01:
This is not an umbrella term.

[00:05:22] Speaker 01:
And equitable estoppel is a completely different theory that does not have a notice requirement in the district of New Mexico.

[00:05:31] Speaker 03:
I'm not sure that I agree with you on the ammunition firearm.

[00:05:36] Speaker 03:
Just looking at the language, right before that, he was talking about he was informed he could get the firearms back in Texas.

[00:05:44] Speaker 03:
And now they're trying to say, oh, he knew he couldn't get them back, sounding as though it's the firearms.

[00:05:50] Speaker 03:
And that leads directly into if you can't trust.

[00:05:53] Speaker 03:
So I'll take another look at that.

[00:05:55] Speaker 03:
And maybe you're right.

[00:05:57] Speaker 03:
And, Your Honor, I also think that it matters that... Separate question on Elmer.

[00:06:01] Speaker 03:
Oh, sure.

[00:06:04] Speaker 03:
The defendant here is treating this as though the El Paso police is the ATF or something, as though they are in charge of and have expertise in and are attentive to and care about measuring the length of a barrel on a firearm like this one.

[00:06:22] Speaker 03:
How could, even if he wants to rely on it, say I trusted them to my detriment,

[00:06:27] Speaker 03:
How can you trust that when that's not even their job and it's just some evidence custodian who probably worked in the night shift said, here's your guns back.

[00:06:37] Speaker 01:
And your honor, it's a police officer he'd been in constant contact with both himself and through his girlfriend trying to get his guns back throughout the pendency of his Texas case.

[00:06:46] Speaker 01:
Again, this I'm going to go back to your previous question for just a moment, because when the district court sustained the government's objection and said, this is what you've been doing the last three minutes.

[00:06:57] Speaker 01:
And what it what it's important is to go back to page in the green.

[00:07:01] Speaker 01:
It's page eight forty seven on the bottom right eight twelve where he starts with dates matter because that's a direct response to the government's argument about ammunition that dates matter.

[00:07:11] Speaker 01:
New Mexico said you can't have guns or firearms in June 17th.

[00:07:15] Speaker 01:
And Mr. Trevino then testified.

[00:07:17] Speaker 01:
But yeah, I then had this interaction in Texas afterward.

[00:07:20] Speaker 01:
So

[00:07:23] Speaker 01:
I don't see this as this particular spot as an argument about the short barreled rifle, but he does of course make arguments about the short barrel rifle and we're requesting.

[00:07:32] Speaker 01:
that this go back for retrial on all grounds.

[00:07:36] Speaker 01:
And his argument is subtler because it's not an affirmative defense that he's making.

[00:07:41] Speaker 01:
He's trying to undermine the government's proof of mens rea.

[00:07:43] Speaker 01:
The government must prove beyond a reasonable doubt that he actually knew the length of the rifle barrel.

[00:07:49] Speaker 01:
And there's lots of important evidence here because there's testimony about upper receivers versus barrels that the upper receiver is much easier to switch out.

[00:07:58] Speaker 01:
It's clear from the photographic evidence that the upper receiver in this case is over 16 inches.

[00:08:04] Speaker 01:
And Mr. Trevino says he only ever assembled it with an upper receiver.

[00:08:10] Speaker 01:
And he also testified that he hadn't switched out the upper receiver or barrel or anything having to do with the barrel since he had received it back from the El Paso police.

[00:08:19] Speaker 03:
He also testified repeatedly about cleaning the firearm.

[00:08:24] Speaker 01:
About what?

[00:08:24] Speaker 03:
I'm sorry?

[00:08:25] Speaker 03:
Cleaning it.

[00:08:27] Speaker 03:
He assembled it, he bought the pieces.

[00:08:29] Speaker 03:
This isn't just somebody who got a firearm on a corner.

[00:08:33] Speaker 03:
He built it, he put it together, he shot it, he cleaned it.

[00:08:37] Speaker 03:
And one of the exhibits, the last one, I think, or second to last one, is a photograph of a rod being put into the barrel.

[00:08:44] Speaker 03:
And a ruler on that showing 12.6 or whatever it was inches, substantially less than 16.

[00:08:52] Speaker 03:
In cleaning the firearm, wouldn't he have been doing that same exercise with something to where he would have seen the link?

[00:08:59] Speaker 03:
In other words, this, I didn't know defense.

[00:09:02] Speaker 03:
How good is it?

[00:09:04] Speaker 01:
And your honor, I think that goes to harmlessness.

[00:09:06] Speaker 01:
And I really want to point out that in this case, the government has not argued harmlessness.

[00:09:10] Speaker 01:
It's their burden.

[00:09:11] Speaker 01:
It's a preserved objection.

[00:09:13] Speaker 01:
We believe that this is structural error.

[00:09:15] Speaker 01:
But even if it's a question having to do with harmlessness, the government hasn't argued it.

[00:09:20] Speaker 01:
And I don't believe that this court

[00:09:22] Speaker 01:
Should exercise its to respond to right to address it because it only does that when the record clearly indicates that the person would have been convicted and I don't think we have that here.

[00:09:34] Speaker 01:
We have.

[00:09:34] Speaker 01:
two different, we have evidence.

[00:09:37] Speaker 01:
I mean, the government certainly had sufficient evidence to sustain its case.

[00:09:42] Speaker 01:
But Mr. Trevino is sort of, you know, he's like, yeah, I put it together, but it was these easy to put together component parts.

[00:09:49] Speaker 01:
It wasn't the hard to put together barrel.

[00:09:51] Speaker 01:
We don't know if he knew kind of, okay, when I'm cleaning it where that rod hits is the barrel is what he's cleaning with it have those measurements on it.

[00:09:59] Speaker 01:
There's no evidence about that.

[00:10:01] Speaker 01:
We do know that different officers made mistakes when they were looking at it.

[00:10:06] Speaker 01:
And yeah, they weren't the ATF officers, but Mr. Trevino is not an ATF officer either.

[00:10:11] Speaker 01:
And so he relied on all of this evidence collectively to undermine the evidence of his knowledge of this element.

[00:10:19] Speaker 01:
That this was, it had all the component kind of add-ons that you would have for a long range

[00:10:25] Speaker 01:
rifle.

[00:10:25] Speaker 01:
When you shorten a rifle, the testimony was it's because you're not wanting to use it at long range.

[00:10:31] Speaker 01:
And so there is evidence on both sides and it's not clear that the jury would have convicted if it hadn't been told to disregard this argument.

[00:10:48] Speaker 01:
I don't know if there's any specific questions about any of the remaining arguments in this case.

[00:10:54] Speaker 01:
Really quickly, the government, I think it's very clear that the district court cut off Mr. Trevino's closing and said, you're going to move on from it right now.

[00:11:04] Speaker 01:
Mr. Trevino had never abandoned his argument.

[00:11:07] Speaker 01:
This had been a debate throughout.

[00:11:09] Speaker 01:
And he only sort of conciliatorily fought back with already a ruling that he was doing what he wasn't supposed to do by saying, I really don't think I am.

[00:11:19] Speaker 01:
But if you think I'm towing the line, right?

[00:11:22] Speaker 01:
If I'm out of bounds here, then I'll move on.

[00:11:24] Speaker 01:
So this is not a waiver.

[00:11:25] Speaker 01:
This is absolutely an interruption.

[00:11:28] Speaker 01:
He does not after that, if he's instructed to move on, he does move on.

[00:11:31] Speaker 01:
He never, you know, he, he ends his closing shortly thereafter.

[00:11:34] Speaker 01:
He does not bring up El Paso ever again.

[00:11:37] Speaker 01:
He does not apply the facts to the law for the jury ever again.

[00:11:41] Speaker 01:
This really cuts off his closing.

[00:11:43] Speaker 01:
And then additionally, the district court instructed the jury that this is not an accurate statement of law.

[00:11:49] Speaker 01:
And that's wrong.

[00:11:51] Speaker 01:
The argument that Mr. Trevino had made up to that point, all of it was proper argument.

[00:11:57] Speaker 01:
It all went to mens rea.

[00:11:58] Speaker 01:
And because it went to mens rea, it was not excludable as being a public authority or equitable estoppel claim.

[00:12:06] Speaker 03:
Would we even be having this discussion if he would have just preserved the defense?

[00:12:12] Speaker 01:
Your honor, he simply didn't raise a public authority defense.

[00:12:15] Speaker 01:
He didn't.

[00:12:15] Speaker 01:
He public authority.

[00:12:17] Speaker 01:
The law is extremely clear in this circuit and in other circuits that public authority is about acting pursuant to it, not I was advised about the state of the law.

[00:12:26] Speaker 01:
I thought it wasn't illegal.

[00:12:28] Speaker 01:
The conduct misled me into understanding what my rights were.

[00:12:31] Speaker 01:
It's something really different.

[00:12:32] Speaker 01:
It's I went in and did this controlled by.

[00:12:35] Speaker 01:
I went in and I was working hand in hand with the police.

[00:12:39] Speaker 01:
I was exercising the same authority that the police do because the public authority defense originally, the common law one was possessed by the police that they may break the law in exercise of their public authority in certain situations.

[00:12:54] Speaker 01:
And so that's what the public authority defense is.

[00:12:56] Speaker 01:
He had no reason to give notice because he didn't do anything even approaching that.

[00:13:02] Speaker 01:
And if I may, if there's no further questions, I'd like to reserve the remainder of my time.

[00:13:07] Speaker 03:
Yes.

[00:13:08] Speaker 01:
Thank you.

[00:13:09] Speaker 03:
Thank you.

[00:13:13] Speaker 03:
Council?

[00:13:14] Speaker 02:
Good morning, Your Honors.

[00:13:15] Speaker 02:
Council, may it please the court?

[00:13:17] Speaker 02:
I'm James Braun on behalf of the government.

[00:13:20] Speaker 02:
The issue here is not whether the district court correctly labeled defense counsel's closing argument as a public authority defense rather than a generic governmental authority defense or an entrapment by estoppel defense.

[00:13:32] Speaker 00:
But the real issue, it was a lack of mens rea approach.

[00:13:37] Speaker 00:
I was frustrated by the briefs that you seemingly didn't engage the mens rea issue very strongly.

[00:13:45] Speaker 00:
You kept wanting to give it other labels.

[00:13:47] Speaker 00:
And I think it's clear it's not all these other things that you're saying it's not.

[00:13:53] Speaker 00:
But it is whether there was mens rea and that's the thing that really needs to be addressed and for some reason You seem to say there was a whole bunch of other things here.

[00:14:02] Speaker 00:
It was not well, I agree Well, and before you're done with your argument i'd like you to give adequate attention to the mens rea point and and is it not a credible piece of evidence that I my mens rea

[00:14:20] Speaker 00:
was that they wouldn't have given it back to me if they didn't think it was legal for me to have.

[00:14:26] Speaker 00:
I don't know why they thought that.

[00:14:27] Speaker 00:
I don't know whether it was something in Texas that I didn't know about.

[00:14:30] Speaker 00:
I don't know if there was something else, but I reasonably believed that

[00:14:36] Speaker 00:
they decided it was okay for me to hold on to and I'm relying on that.

[00:14:40] Speaker 00:
Now, we may disagree with it.

[00:14:41] Speaker 00:
I think the jury very likely would disagree with that factual premise, but still it comes up under mens rea and not all these other theories that the brief spends so much time on.

[00:14:55] Speaker 02:
Well, Your Honor, we acknowledge that the defendant did argue mens rea as to two points.

[00:15:00] Speaker 02:
One was the length of the barrel and his knowledge of it.

[00:15:03] Speaker 02:
The other the second was whether he willfully purchase the ammunition, meaning that he knew it was unlawful, and he was allowed to make both of those arguments.

[00:15:17] Speaker 02:
With regard to the El Paso police giving him the guns back, he was allowed to testify.

[00:15:22] Speaker 02:
Initially, the district court was going to preclude that evidence because it found that it wasn't relevant, but it allowed the defendant to testify to it as to his mens rea.

[00:15:31] Speaker 02:
And what he testified was that he believed he could purchase the ammunition because he thought his conditions of probation must have changed when they gave him the guns back.

[00:15:41] Speaker 02:
But he never testified as to any impact the return of the firearms had on his knowledge of the length of the barrel.

[00:15:49] Speaker 02:
And on appeal, the defendant argues that that was one of his arguments, that

[00:15:55] Speaker 02:
that because the receipt said long rifle that that caused him to believe that it was not a short barreled rifle but he never testified to that that was not an argument that would have been supported by the evidence.

[00:16:09] Speaker 02:
And so, what he did argue, and without objection.

[00:16:14] Speaker 02:
was that the government was confused about the length of the barrel.

[00:16:17] Speaker 02:
And I think Judge Phillips made the point about the evidence that was introduced about the ruler in the barrel and one officer thought it was 13 inches the expert testified it was 10 inches the defense argued

[00:16:29] Speaker 02:
All of that and that if the government's confused about the length of the barrel, we can't expect him to know that's his mens rea argument he made that he also argued that if that he believes probation conditions had changed.

[00:16:43] Speaker 02:
And so he didn't willfully purchase the ammunition.

[00:16:47] Speaker 02:
He was allowed to argue that it was when he did something more.

[00:16:52] Speaker 02:
And his argument kind of goes jumps all over the place.

[00:16:56] Speaker 02:
It goes from that he trusted the El Paso police to he didn't know the length of the barrel to arguing that his purchase of the ammunition wasn't willful.

[00:17:10] Speaker 02:
But by the time the government objection, he was saying that

[00:17:15] Speaker 02:
He trusted the El Paso police.

[00:17:17] Speaker 02:
And if you can't trust the police, who can you trust?

[00:17:20] Speaker 02:
And that's when the government objected that he was making an unnoticed public authority defense.

[00:17:27] Speaker 02:
And when defense counsel said, no, I'm not, the prosecutor responded, it's still a public authority defense by some other name.

[00:17:34] Speaker 02:
And that was exactly right.

[00:17:36] Speaker 02:
It was an entrapment by a stop all government authority defense.

[00:17:39] Speaker 02:
And the court rightly said that is exactly what you're doing.

[00:17:43] Speaker 02:
The court then instructed the jury on the law and told them to have that in mind as you consider what's been set up to that.

[00:17:50] Speaker 00:
I mean, wouldn't that evidence support a fact of lack of mens rea?

[00:17:55] Speaker 00:
I mean, it might have been more than that.

[00:17:59] Speaker 00:
I don't know.

[00:18:00] Speaker 00:
But I didn't see much emphasis on some of these other theories from the defendant.

[00:18:06] Speaker 00:
But it certainly, in any event, would have carried a credible mens rea argument, don't you think?

[00:18:13] Speaker 02:
If the defendant had testified, when I received the AR-15 back, I noticed that the receipt said long rifle.

[00:18:21] Speaker 02:
I thought that meant long barrel rifle, even though that's not what the receipt said.

[00:18:25] Speaker 02:
And so therefore, I didn't know the length of the barrel, but he never testified to that.

[00:18:29] Speaker 02:
And so possibly that could have been a proper mens rea argument, but that's not what the defendant testified to.

[00:18:36] Speaker 02:
And the case law is clear that a district court has discretion to limit a defendant's argument

[00:18:44] Speaker 02:
in closing to that which is supported by the evidence.

[00:18:47] Speaker 02:
There was simply no evidence of any effect that the return of that AR-15 had on the defendant's state of mind as to the length of the barrel of the rifle.

[00:18:56] Speaker 02:
He did testify, I didn't know the length of the barrel, but he didn't say that was based on anything the El Paso Police Department did.

[00:19:03] Speaker 02:
The only thing the El Paso Police Department did, according to his testimony, that caused him to have a belief was that his probation conditions had changed.

[00:19:14] Speaker 02:
And that's a separate argument.

[00:19:15] Speaker 02:
That goes to the willfulness of the ammunition, not to his mens rea, his knowledge of the length of the barrel of the rifle.

[00:19:24] Speaker 02:
So when he argues

[00:19:28] Speaker 02:
Early in his argument, he argues, the El Paso Police Department gave Tyler back the weapons.

[00:19:33] Speaker 02:
The police department didn't think anything was wrong with the rifle.

[00:19:37] Speaker 02:
And then later, a few minutes later, he says, if we can't trust that, what can we trust in the United States?

[00:19:42] Speaker 02:
That is something different than arguing, they led me to believe the length of the barrel was short.

[00:19:51] Speaker 02:
That's arguing that I should be able to trust we should be able to trust the police that when they get back the rifle that it's lawful.

[00:19:58] Speaker 02:
And that's how the court reasonably interpreted that argument.

[00:20:02] Speaker 02:
And what the court did was then instruct the jury just that that was not a correct statement of the law, based on this case.

[00:20:13] Speaker 02:
The court did not instruct the jury to disregard any proper argument that had been made up until that point.

[00:20:19] Speaker 02:
It simply instructed the jury to consider everything it had heard in light of that instruction on the law.

[00:20:38] Speaker 02:
And it's important to look at exactly what the court said because the court said the suggestion that because the police in El Paso gave him the guns, it was okay for him to have the guns relative to this entire proceeding is not an accurate statement of the law.

[00:20:51] Speaker 02:
And I want you to accept that.

[00:20:53] Speaker 02:
and defense counsel has agreed to move on, but that is not a correct statement of the law.

[00:20:57] Speaker 02:
And I'd have you have that in mind as you consider what's been set up to this point.

[00:21:02] Speaker 02:
So the court is clearly talking about the guns.

[00:21:05] Speaker 00:
Well, yeah, and you just drew this distinction between guns and ammo.

[00:21:09] Speaker 00:
Would it be unreasonable to say, well, if I thought it was legal for me to get the gun back, then Aforsiari, I clearly would have thought it was reasonable

[00:21:20] Speaker 00:
to have the ammunition back.

[00:21:22] Speaker 00:
Now, I know none of that was explicitly said in that words.

[00:21:27] Speaker 00:
What I'm worried about is if that potential argument got cut short by the rulings.

[00:21:34] Speaker 02:
Well, at that point, defense counsel didn't try to clarify what he was arguing in that regard.

[00:21:42] Speaker 00:
And I recognize that that's a legitimate concern on behalf of the government.

[00:21:46] Speaker 00:
I'm not minimizing that.

[00:21:48] Speaker 00:
Apart from that, I'm trying to address this other matter of what the ruling really was and whether it was really defensible in the context of whether it was relevant evidence on mens reo.

[00:22:02] Speaker 02:
Right.

[00:22:03] Speaker 02:
And our position is that it was

[00:22:06] Speaker 02:
The defendant's testimony about his mens rea was admitted without objection.

[00:22:11] Speaker 02:
But it related solely to his willfulness with regard to the purchase of the ammunition.

[00:22:19] Speaker 02:
And the court's instruction did not relate to that.

[00:22:21] Speaker 02:
It related to the lawful possession of the guns in a direct response to the defendant arguing that he trusted the police when they gave him back the gun and that

[00:22:34] Speaker 00:
So is your argument that this argument, that the mens rea, the relevance to mens rea was simply not presented to the district court as a justification to get this additional evidence in, and therefore it was not preserved in the context of a support of mens rea, lack of mens rea?

[00:22:54] Speaker 02:
In the context of mens rea with regard to the length of the barrel of the rifle?

[00:22:59] Speaker 02:
Yes.

[00:23:00] Speaker 02:
Because the defendant did not testify to that.

[00:23:06] Speaker 03:
When you say that, I'm not sure I understand what you mean.

[00:23:08] Speaker 03:
Are you saying that the defendant didn't testify that El Paso giving him the firearm back meant that the barrel was indeed more than 16 inches?

[00:23:21] Speaker 03:
Right.

[00:23:24] Speaker 00:
And did he try to testify about that and was denied or did he just not do it?

[00:23:29] Speaker 00:
I mean, do we just have a case where he didn't preserve the issue because he didn't tender that particular question?

[00:23:36] Speaker 00:
I mean, is that the end of the matter as far as you're concerned?

[00:23:39] Speaker 02:
Right.

[00:23:39] Speaker 02:
He just didn't do it.

[00:23:40] Speaker 02:
It's not like he tried to testify to it and was cut off.

[00:23:44] Speaker 02:
He simply didn't testify about any impact the return of the AR-15 had on his knowledge of the length of the barrel.

[00:23:52] Speaker 00:
And so it wasn't, okay, now I understand your argument that it simply was not presented below, that it certainly is being asserted on appeal, but it wasn't preserved below and therefore it's not something that we could reverse on.

[00:24:13] Speaker 03:
There's a lot of evidence here, and we haven't even talked about Mr. Kopp, Kopp with a K, who said that the defendant had told him that it was short barrel, but no harmlessness or anything.

[00:24:28] Speaker 02:
Our argument is that the district court simply didn't do what the defendant is claiming it did.

[00:24:35] Speaker 02:
It did not instruct the jury to disregard his argument.

[00:24:39] Speaker 02:
It simply told the jury to consider what it had heard in light of a correct statement of the law.

[00:24:45] Speaker 02:
That's very different.

[00:24:47] Speaker 03:
Is the lack of a harmlessness argument an oversight or do you concede that it wasn't?

[00:24:55] Speaker 02:
Well, we do argue harmlessness with regard to the first issue that was raised, the second amendment.

[00:25:02] Speaker 02:
And it basically covers all of the evidence, the strong evidence of Trevino's knowing possession of a shore barrel rifle at pages 41 and 42 of the government's brief.

[00:25:15] Speaker 02:
Now, admittedly, that's in relation to issue one, not issue two, but the same argument would hold true for harmlessness here.

[00:25:24] Speaker 02:
if the court found that there was error.

[00:25:26] Speaker 02:
Our argument is, and we do argue in our brief, what the defendant was allowed to argue, because again, under Button, the question is whether the defendant was able to present his defense.

[00:25:38] Speaker 02:
And that's what the defense is arguing here, that they were not able to adequately present their defense.

[00:25:42] Speaker 02:
And so we do argue all of the things that he was able to argue in his closing.

[00:25:47] Speaker 02:
which is that he didn't know the length of the barrel because the government was confused about it and he goes into the officer's testimonies about the different lengths of the barrel.

[00:25:56] Speaker 03:
You don't argue who cares about the El Paso police because look at all this other evidence the jury would have convicted him 99.9 out of 100.

[00:26:07] Speaker 03:
Why not?

[00:26:08] Speaker 02:
So that that separate issue then

[00:26:11] Speaker 02:
Again, the harmlessness argument is contained in the brief as to issue one, and we would argue the court can consider that as to as to issue two.

[00:26:22] Speaker 02:
Because it is fully briefed in regard to the strength of the evidence of his guilt of that count.

[00:26:35] Speaker 02:
And so again, ultimately the question being whether the district court improperly limited the defense's ability to present a defense, it did not.

[00:26:44] Speaker 02:
The defendant was able to argue that he didn't knowingly possess a short barrel rifle and he was able to argue that he did not willfully purchase the ammunition.

[00:26:54] Speaker 02:
And so there was no error in this case.

[00:26:57] Speaker 02:
We would ask that the court affirm unless the court has any additional questions.

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

[00:27:06] Speaker 03:
and you have some rebuttal time.

[00:27:08] Speaker 01:
Thank you, Your Honor.

[00:27:09] Speaker 01:
First, I'm extremely confused about the conversation, Judge Bell, that you had with the government about preservation and mens rea.

[00:27:17] Speaker 01:
My understanding of the government's argument in its brief is that Mr. Trevino did not explicitly testify that he relied on the slip of paper, and therefore it was irrelevant to his mens rea.

[00:27:30] Speaker 01:
The government never argued.

[00:27:32] Speaker 01:
that the district court didn't understand its mens rea defense, didn't understand that he was trying to raise a mens rea defense or anything like that.

[00:27:40] Speaker 01:
And if you look at the objection, the district court absolutely understood that everything that had been talked about previously was part of the conversation.

[00:27:48] Speaker 01:
On page 848, he says,

[00:27:50] Speaker 01:
That's public authority, we had this discussion time and again.

[00:27:55] Speaker 01:
So it is very clear that everybody knew what the conversation was about that Mr Trevino absolutely preserved his arguments about mens rea when it comes to whether you can infer that when someone saw a piece of paper it impacted their state of mind.

[00:28:08] Speaker 01:
100% you can.

[00:28:09] Speaker 01:
The government makes inferences like that all of the time.

[00:28:13] Speaker 01:
There is case law about the government does not have to have a defendant's testimony to be able to prove what was inside the defendant's head.

[00:28:19] Speaker 01:
And neither does the defense need the defendant's testimony to prove or to undermine the evidence of what was inside his head.

[00:28:26] Speaker 01:
I'm also extremely surprised that the government is saying that has made a harmless argument.

[00:28:31] Speaker 01:
I don't believe that you can make an argument about

[00:28:34] Speaker 01:
You know, saying, well, even if one statute is unconstitutional, that's okay.

[00:28:39] Speaker 01:
And that's to maintain the other charges and that somehow that can transfer and become a harmless error argument on a completely different plane where the government doesn't even argue that harmless error applies doesn't say also see our harmless error argument above.

[00:28:57] Speaker 01:
Um, and where we have two really big problems on harm, one that we, his argument was cut off.

[00:29:03] Speaker 01:
So we don't know what else he would say.

[00:29:04] Speaker 01:
And it's the government's burden to prove harmlessness.

[00:29:07] Speaker 01:
And two, the government went to the jury and either, either perfectly defined what the district court said or exacerbated the harm of the district court's error by saying.

[00:29:17] Speaker 01:
The judge told you that everything having to do with El Paso is irrelevant.

[00:29:23] Speaker 01:
This is 100% prejudice, Mr. Trevino, and we ask the court to reverse.

[00:29:29] Speaker 03:
But thank you, counsel, for your arguments.

[00:29:31] Speaker 03:
The case is submitted.

[00:29:32] Speaker 03:
Counselor excused.