[00:00:02] Speaker 01:
Third case for the morning is 24-6266, United States versus Wang.

[00:00:10] Speaker 02:
Good morning, Your Honor.

[00:00:12] Speaker 02:
Good morning, Mr. Krieger.

[00:00:13] Speaker 02:
May it please the Court?

[00:00:15] Speaker 02:
My name is Lauren Schoenbach.

[00:00:16] Speaker 02:
I represent Jeff Wang as his appellate attorney.

[00:00:21] Speaker 02:
At the outset, I would ask to reserve five minutes of my time for rebuttal.

[00:00:27] Speaker 01:
We'll see how it goes.

[00:00:29] Speaker 01:
Go ahead, please.

[00:00:30] Speaker 01:
I can ask.

[00:00:31] Speaker 01:
Yes, of course, do so.

[00:00:33] Speaker 02:
Thank you, sir.

[00:00:34] Speaker 02:
With regard to several of the issues that were raised on direct appeal, I believe they have been decided.

[00:00:41] Speaker 02:
I know that Your Honor, Judge Holmes was on the panel previously with the co-defendant.

[00:00:47] Speaker 02:
I assert that those issues still are alive and well.

[00:00:51] Speaker 02:
I recognize the government's argument about the law of the case.

[00:00:56] Speaker 02:
And I cited in my brief the United States against Monsavis, which allows for the law of the case to be accepted, if you will, based upon the facts.

[00:01:10] Speaker 02:
I cited that in my brief.

[00:01:12] Speaker 02:
I don't believe it deserves or warrants any additional argument here.

[00:01:17] Speaker 02:
Given the constraints of time, I would prefer to take my time to discuss the issue of sufficiency, or as I would call it, the lack of sufficiency of the evidence against Mr. Wing.

[00:01:33] Speaker 02:
In particular, the indictment itself charges a very specific timeline.

[00:01:40] Speaker 02:
and a specific set of facts.

[00:01:44] Speaker 02:
From 2021 to Mr. Wang's arrest in 2023, May of 2023, he was the manager of a marijuana grow farm in Wetumpka, Oklahoma.

[00:01:58] Speaker 02:
That is not the charge here.

[00:02:00] Speaker 02:
The charge is from December of 2022 till May 17 of 2023,

[00:02:07] Speaker 02:
that Mr. Wang was part of a conspiracy to sell black market marijuana.

[00:02:14] Speaker 03:
Where do you get the black market component of this?

[00:02:17] Speaker 02:
Well, I was about to say I don't care if it's black market, white market, purple market.

[00:02:23] Speaker 02:
Selling marijuana illegally is a crime under the federal code.

[00:02:27] Speaker 02:
I recognize that.

[00:02:28] Speaker 01:
Selling marijuana is a crime under the federal code, period.

[00:02:32] Speaker 02:
Yes, it is.

[00:02:33] Speaker 02:
And I submit to Your Honor that in this case, the charge is not selling marijuana.

[00:02:39] Speaker 02:
It is conspiring to sell marijuana, to possess it with the intent to distribute it.

[00:02:44] Speaker 02:
And there is no evidence, none, that shows that Mr. Wang was part of the charged conspiracy.

[00:02:53] Speaker 02:
The date of the conspiracies in December of 22 is when Brandon Yee was arrested.

[00:02:58] Speaker 02:
Brandon Yee was the cooperator in this case.

[00:03:01] Speaker 02:
The end of the conspiracy was May 17, 23, the date when Mr. Wang was arrested following the search of the farm.

[00:03:11] Speaker 02:
That's the finite period.

[00:03:13] Speaker 02:
And during that period of time, no evidence was adduced.

[00:03:17] Speaker 02:
that Mr. Wing did anything.

[00:03:20] Speaker 01:
You're right.

[00:03:21] Speaker 01:
We are talking about a conspiracy.

[00:03:23] Speaker 01:
And a conspiracy, a drug conspiracy, has no overdat.

[00:03:27] Speaker 01:
So there doesn't have to be proof that he did anything beyond join the conspiracy, right?

[00:03:32] Speaker 02:
And that's correct, Judge.

[00:03:35] Speaker 02:
And there's no evidence that he joined that conspiracy.

[00:03:38] Speaker 01:
OK.

[00:03:38] Speaker 01:
Let's try this.

[00:03:39] Speaker 01:
During the period that you've listed here, December 22 to May 2023, was he still manager of Watanka Grow?

[00:03:46] Speaker 01:
Yes, sir.

[00:03:47] Speaker 01:
He did the paperwork for Watanka Grow.

[00:03:49] Speaker 02:
For the legal grow?

[00:03:50] Speaker 02:
By his own admission, yes.

[00:03:51] Speaker 01:
For the grow, right?

[00:03:53] Speaker 02:
Yes.

[00:03:54] Speaker 02:
When I say legal grow, I'm referring to the state.

[00:03:56] Speaker 02:
I recognize the federal government has a different position.

[00:03:59] Speaker 02:
I get it.

[00:03:59] Speaker 02:
That's why I'm here.

[00:04:00] Speaker 01:
Okay, well, what I'm saying is he did the paperwork for the business, which meant that he would have been aware of what was happening.

[00:04:09] Speaker 01:
Well, it would have been a reasonable inference from a reasonable jury that he would have been aware of what was going on in the business that he did the paperwork for.

[00:04:16] Speaker 01:
That's what I'm getting at.

[00:04:19] Speaker 01:
Do you dispute that?

[00:04:20] Speaker 02:
No, I think that's a reasonable inference that the jury could find that he

[00:04:24] Speaker 02:
He did the paperwork.

[00:04:25] Speaker 02:
He admitted to it and that that was part of his job.

[00:04:28] Speaker 01:
Okay.

[00:04:29] Speaker 01:
And that he was manager.

[00:04:30] Speaker 01:
There was money, there was a hundred and whatever thousand dollars found in the attic above where he slept.

[00:04:38] Speaker 01:
Correct.

[00:04:39] Speaker 01:
Okay.

[00:04:40] Speaker 01:
And the money he made monthly, three to $4,000 was nowhere near the $100,000 that was in his attic, right?

[00:04:48] Speaker 02:
I think that's a reasonable effort.

[00:04:51] Speaker 01:
Okay.

[00:04:51] Speaker 01:
I'll stop ticking him off, but the point I'm getting at is I thought I heard you say there's no evidence.

[00:04:56] Speaker 01:
Why isn't the evidence, just the evidence that I ticked off, evidence that a reasonable jury could consider in determining that he had joined a conspiracy?

[00:05:06] Speaker 01:
Again, we're not talking about over that.

[00:05:08] Speaker 01:
We're talking about joining a conspiracy.

[00:05:10] Speaker 01:
Why isn't that evidence, well, why isn't that evidence at least taking us down the road to sufficiency?

[00:05:20] Speaker 02:
Because that goes, if anything, assuming a jury accepts that, the money and, in fact, also the gun that was found in the house in three separate places, meaning the gun was found in a lock box.

[00:05:37] Speaker 02:
It was empty.

[00:05:38] Speaker 02:
The clip was found in a drawer on the other side of the house.

[00:05:41] Speaker 02:
And the holster was somewhere in the middle.

[00:05:44] Speaker 02:
A reasonable jury could find that those facts

[00:05:49] Speaker 02:
showed Mr. Wang's knowledge, but not necessarily his participation and certainly not his agreement to be a member of the conspiracy.

[00:06:00] Speaker 02:
Now, I've listed a whole bunch of facts that were never shown.

[00:06:06] Speaker 03:
What are the elements that you are contending precisely?

[00:06:09] Speaker 03:
There is a lack of evidence.

[00:06:13] Speaker 03:
What are the elements precisely, the elements of the conspiracy charge that you contend were insufficiently proven beyond a reasonable doubt?

[00:06:19] Speaker 02:
The agreement.

[00:06:20] Speaker 02:
The agreement.

[00:06:21] Speaker 02:
There's no agreement.

[00:06:22] Speaker 02:
There's no fact adduced that Mr. Wang agreed with Tong Lin.

[00:06:29] Speaker 03:
Did he know that the objective of the conspiracy, do you concede that?

[00:06:32] Speaker 02:
No, I don't concede that.

[00:06:34] Speaker 02:
Because the conspiracy, again, and it's just for a title, not for a definitive fact.

[00:06:40] Speaker 02:
Call it black market.

[00:06:42] Speaker 02:
It's the sale of marijuana during this time period.

[00:06:46] Speaker 02:
There's no evidence deduced that Mr. Wang knew that marijuana was being sold during that time period.

[00:06:52] Speaker 02:
Certainly no evidence that it was being sold.

[00:06:54] Speaker 04:
He was the manager of the grow.

[00:06:57] Speaker 04:
He managed it.

[00:06:59] Speaker 04:
He did all the paperwork.

[00:07:01] Speaker 04:
It's not even an inference to assume he knew marijuana was being sold.

[00:07:06] Speaker 04:
How do you even need an inference for that?

[00:07:08] Speaker 02:
Well, that means, Judge, being the manager is a status.

[00:07:12] Speaker 02:
It's a title.

[00:07:13] Speaker 02:
Do I think, am I naive enough to think that that's all it was?

[00:07:17] Speaker 02:
No, of course not.

[00:07:18] Speaker 02:
But the government has to prove that he did something toward that agreement.

[00:07:24] Speaker 02:
And even if he meant, here's the thing, if Mr. Wayne was charged with

[00:07:31] Speaker 02:
distribution of marijuana as an illegal federal crime, which it is, they could easily have charged from February, or I'm sorry, from 2021 till May of 23, because that was the time period he was the manager by his own admission.

[00:07:47] Speaker 02:
They didn't.

[00:07:48] Speaker 02:
They chose a very finite period of time.

[00:07:50] Speaker 03:
But he was still the manager during that.

[00:07:51] Speaker 02:
Of course he was.

[00:07:53] Speaker 02:
And he's no different.

[00:07:54] Speaker 02:
You know, in my opening brief,

[00:07:57] Speaker 02:
I argued that he was no different than the electronic salesman, the manager of the electronic salesman at a Walmart.

[00:08:04] Speaker 02:
And I think the government was correct in rebutting that by saying they're doing something illegal.

[00:08:10] Speaker 02:
But now suppose that not being the manager of the electronics department, he's the pharmacist at a Walmart.

[00:08:19] Speaker 02:
And his protege, if you will, is the assistant pharmacist.

[00:08:26] Speaker 02:
They're both licensed by the state.

[00:08:28] Speaker 02:
They're both licensed by the federal government.

[00:08:31] Speaker 02:
Mr. Wang is the pharmacist at a Walmart.

[00:08:35] Speaker 02:
How does he know if Tong Lin, also a pharmacist, also licensed by the state, assuming my analogy, is selling

[00:08:48] Speaker 02:
Medical grade cocaine out the back door, fentanyl out the back door.

[00:08:53] Speaker 02:
He doesn't know that, or at least there's no evidence that he did, or that he joined in the Tong Lin conspiracy with Brandon Yee and others.

[00:09:04] Speaker 01:
That strikes me as the more salient point because you could have knowledge but not join the agreement.

[00:09:13] Speaker 01:
I mean, to your point about the pharmacist, and I like your hypotheticals, but the problem I found with that one in particular is Tom Lynn was a subordinate.

[00:09:24] Speaker 01:
to Mr. Wang.

[00:09:26] Speaker 01:
He was not an equal.

[00:09:28] Speaker 01:
And the paperwork was handled by Mr. Wang.

[00:09:30] Speaker 01:
And so he would have known what marijuana was being grown, how many plants they had.

[00:09:39] Speaker 01:
He would have known all of these things by virtue, at least a reasonable jury could infer that, by virtue of being the manager.

[00:09:46] Speaker 01:
And so if there's this whole patch of marijuana that's growing on this property,

[00:09:52] Speaker 01:
Presumably he would know that too, right?

[00:09:56] Speaker 02:
I think that's, I think that's correct.

[00:09:57] Speaker 01:
Okay.

[00:09:58] Speaker 01:
He, he know that there's this whole patch of property of marijuana outside of what his records show that is being grown on the property.

[00:10:06] Speaker 01:
He is the manager of this operation.

[00:10:09] Speaker 01:
He, which means unlike in the pharmacist situation, he can, he can say, stop this enterprise.

[00:10:16] Speaker 01:
tell Tom Lynn to stand down, but he didn't do that.

[00:10:20] Speaker 01:
One, I know that's not a crime, but let me work with me for a second.

[00:10:23] Speaker 01:
Go ahead, please.

[00:10:24] Speaker 02:
I'm sorry, I don't want to interrupt you.

[00:10:27] Speaker 02:
I apologize.

[00:10:29] Speaker 02:
We don't know that, Judge.

[00:10:30] Speaker 02:
There's no evidence that Mr. Wing didn't say, stop, don't do this.

[00:10:35] Speaker 02:
And there's no evidence that he said, continue to do it.

[00:10:37] Speaker 02:
There's just no evidence.

[00:10:38] Speaker 01:
There is no evidence, but the bottom line is that all we're talking about is what a reasonable jury could... Would there have been sufficient evidence?

[00:10:46] Speaker 01:
It doesn't have to be optimal.

[00:10:47] Speaker 01:
It doesn't have to be bulletproof.

[00:10:49] Speaker 01:
The question is, would a reasonable jury be able to find that he joined this conspiracy?

[00:10:53] Speaker 01:
And if he was the manager, and if the premise that he would have known there was marijuana being grown that was outside the scope of what he had to report to the state of Oklahoma, then the question would be, what is he doing vis-a-vis his subordinate?

[00:11:08] Speaker 01:
One, and as I understood it, he had a boss, right?

[00:11:12] Speaker 01:
Oh, who was the owner of the... Yeah, who was the owner.

[00:11:15] Speaker 02:
And there's a licensee also.

[00:11:16] Speaker 01:
Okay.

[00:11:17] Speaker 01:
Well, Mr. Wang received a paycheck, and that paycheck in no way, shape, or form was equivalent to... He could have been very frugal and saved a lot of money, but it was not equivalent to the $100,000 that was in change.

[00:11:32] Speaker 01:
It was found in the attic above where he lived.

[00:11:35] Speaker 01:
So couldn't a reasonable jury infer whom

[00:11:38] Speaker 01:
That's a lot of money.

[00:11:39] Speaker 01:
I wonder how he came by that money.

[00:11:41] Speaker 01:
And he's the manager of this marijuana farm.

[00:11:43] Speaker 01:
Hmm.

[00:11:44] Speaker 01:
That leads me to believe that maybe he was involved in doing something illegal.

[00:11:48] Speaker 01:
Where's the gap in that?

[00:11:52] Speaker 02:
It's easy, Judge.

[00:11:53] Speaker 02:
The gap, is he selling or did he join the conspiracy to distribute, to sell marijuana as charged in the indictment?

[00:12:03] Speaker 02:
What you're doing, with all due respect, is a broad brush

[00:12:07] Speaker 02:
the same thing that the government did at trial.

[00:12:11] Speaker 02:
The government summed up at trial and said, hold on, this was a black market marijuana operation and what was going on wasn't legal in any type of system.

[00:12:26] Speaker 02:
That only says black market, I'm sorry, that only says black market marijuana and that says conspiracy.

[00:12:34] Speaker 02:
That's not true.

[00:12:35] Speaker 01:
As you pointed out, I don't really care whether it was black market marijuana.

[00:12:39] Speaker 01:
That's not the point I'm getting at.

[00:12:41] Speaker 01:
The point I'm getting at is that in this situation in which he had accumulated a good deal of wealth that bore very little connection to the paycheck that he was receiving,

[00:12:53] Speaker 01:
Why couldn't a reasonable jury infer that when you combine that and you combine that he was the manager and you combine that he had at least nominally the authority to stop Tong Lin from doing what he was doing and he didn't?

[00:13:06] Speaker 01:
Well, why couldn't a reasonable jury infer?

[00:13:09] Speaker 01:
Well, the reason he didn't stop is because he was part of it.

[00:13:13] Speaker 02:
because a reasonable jury could just as easily have assumed he was unaware of the sales by Tong Lin to Brandon Ye.

[00:13:22] Speaker 02:
They could have easily assumed that the money in the attic, the $100,000 in cash, wasn't Mr. Wang's money.

[00:13:32] Speaker 02:
It belonged to someone else.

[00:13:34] Speaker 02:
Maybe.

[00:13:35] Speaker 02:
I'm not suggesting it wasn't or was.

[00:13:37] Speaker 02:
But there's no evidence one way or the other, and you're asking for speculation.

[00:13:41] Speaker 02:
And that is something a jury cannot do.

[00:13:43] Speaker 01:
No, you're correct.

[00:13:44] Speaker 01:
The jury cannot do that.

[00:13:46] Speaker 01:
But what a jury can do is choose among competing inferences.

[00:13:51] Speaker 01:
And what I hear you saying is that there are other inferences that the jury could have drawn from the money in the attic.

[00:13:57] Speaker 01:
And otherwise, well, yes, they could have.

[00:14:00] Speaker 01:
But they didn't.

[00:14:01] Speaker 01:
And the question is whether it was irrational for them to draw the inference that they did, that the money that was in the attic above where he slept

[00:14:10] Speaker 02:
was his money.

[00:14:12] Speaker 02:
And even if it is his money, and even if that's an inference that the jury accepted, it goes to the knowledge, not the participation.

[00:14:22] Speaker 02:
And I use participation as an agreement.

[00:14:25] Speaker 01:
Could I ask one question?

[00:14:30] Speaker 01:
I heard, at least you highlight a few times, the range of the indictment.

[00:14:36] Speaker 01:
And you noted that I was painting with a broad bar.

[00:14:39] Speaker 01:
I'm trying to understand what is the salience of the range of the indictment because it seems that all of the external facts

[00:14:47] Speaker 01:
remain the same.

[00:14:48] Speaker 01:
He was the manager before the indictment period.

[00:14:51] Speaker 01:
He was the manager during the indictment period.

[00:14:53] Speaker 01:
What changed in the indictment period that didn't exist before?

[00:14:57] Speaker 02:
What changed is, I think as this Court recognizes and the facts were kept from the jury, this Court said it was okay, that the finite period of the charged indictment

[00:15:11] Speaker 02:
is about selling marijuana illegally out of state.

[00:15:16] Speaker 02:
Not just selling marijuana, which is illegal, I get under the federal code.

[00:15:21] Speaker 02:
Out of state makes it black market, if you will.

[00:15:24] Speaker 02:
Purple market, blue market, doesn't matter.

[00:15:27] Speaker 02:
The government charged Mr. Wang because of the criminal sales by Tong Lin to Brandon Ye and all of the surrounding facts

[00:15:37] Speaker 02:
that stem from the investigation of Brandon Yee's illegal marijuana business.

[00:15:44] Speaker 01:
And if you accept the premise that whether it was black market or not, it would have been illegal, then what difference does it make from your purposes, from purposes of your defendant?

[00:15:57] Speaker 01:
I mean, the government can talk black market and all that stuff if it wants to, and frame the indictment accordingly, but what difference does it make

[00:16:05] Speaker 01:
If at whatever period in the scope of the time that Mr. Wang was manager, he was a part of a conspiracy to distribute marijuana, even if it was prior to the endiving period, what difference does it make?

[00:16:22] Speaker 02:
It makes a difference because there's no agreement induced in any way

[00:16:28] Speaker 02:
Other than what you have identified before with the gun and the money, and I submit that those facts, if accepted by a jury, go to the issue of knowledge of the illegal enterprise, but not the participation, and I use that word by agreement, of Mr. Wang to participate in the conspiracy.

[00:16:50] Speaker 01:
Wasn't there a deliberate ignorance instruction given in this case?

[00:16:53] Speaker 01:
There was.

[00:16:53] Speaker 01:
Okay.

[00:16:54] Speaker 01:
Well, you can spend a lot of time trying to not know something,

[00:16:58] Speaker 01:
that you, in fact, know is going on, right?

[00:17:01] Speaker 01:
And you could be held guilty of it, right?

[00:17:05] Speaker 02:
Of course.

[00:17:05] Speaker 01:
Okay.

[00:17:09] Speaker 02:
Thank you.

[00:17:09] Speaker 02:
I see that I'm out of time.

[00:17:10] Speaker 02:
Thank you.

[00:17:11] Speaker 01:
Thank you, Counselor.

[00:17:16] Speaker 00:
May it please the court, Stephen Craig on behalf of the United States.

[00:17:21] Speaker 00:
Since my opposing counsel spent virtually all of his time on sufficiency of the evidence, that's where I'll start.

[00:17:27] Speaker 00:
A sufficiency claim, the burden, even if preserved, simply asks whether the evidence was sufficient in a light most favorable to the government to prove the essential elements of the offense.

[00:17:43] Speaker 00:
Mr. Wing was the manager of a marijuana grow.

[00:17:47] Speaker 00:
Marijuana is a Schedule I controlled substance.

[00:17:51] Speaker 00:
There is no lawful grow.

[00:17:53] Speaker 00:
So this court can set aside whether it was to Mr. Yee or whether this discrete distribution meant that

[00:18:05] Speaker 00:
He was guilty or not guilty.

[00:18:07] Speaker 00:
The grow that he was managing, the grow that he had Mr. Lin as a management intern and had other employees was growing 19,661 marijuana plants and another, I believe, 400 pounds of processed marijuana.

[00:18:26] Speaker 00:
He had $100,010 in the attic above his bedroom.

[00:18:31] Speaker 00:
This court has said that

[00:18:33] Speaker 00:
a large quantity of drugs, a large quantity of cash, is sufficient to show an intent that at least allows a jury to draw the inference of an intent to distribute.

[00:18:45] Speaker 03:
How does the government think we should be thinking about the indictment period that the appellant has been emphasizing?

[00:18:53] Speaker 00:
Well, first I would note that I'm fairly confident he didn't raise the indictment period as an argument in his briefing, as a specific argument.

[00:19:02] Speaker 00:
Arguably, it's waived.

[00:19:04] Speaker 00:
But I would note that the indictment, well, it does say from honor about December 1st, 2022, it says the exact date being unknown to the grand jury.

[00:19:12] Speaker 00:
So the grand jury wasn't stuck on that specific date.

[00:19:15] Speaker 00:
But even if we take that date, as the panel has noted, I believe Judge Holmes specifically has noted, the agreement continued on past that.

[00:19:28] Speaker 00:
every time that he was managing employees, every time that he was being consulted, which after the date of the indictment, and I believe it's pages 70 to 71, Mr. Wing controlled access to who could come onto The Grow.

[00:19:44] Speaker 00:
Mr. Wing hired Mr. Lin at what specific date was not revealed, but he continually and actively managed the employees of The Grow.

[00:19:56] Speaker 00:
So the agreement

[00:19:58] Speaker 00:
And a conspiracy is an ongoing thing.

[00:20:01] Speaker 00:
So even if it started beforehand, it carried on from 2022 through 2023.

[00:20:04] Speaker 00:
I would also note, as I did in our brief,

[00:20:15] Speaker 00:
There was much to do about sales, but the crime here is distribution or intent to distribute.

[00:20:22] Speaker 00:
So there technically doesn't have to be any evidence of sales.

[00:20:25] Speaker 00:
I think based on the $100,000 in the attic, there could be a reasonable inference that there was sales, that there were sales.

[00:20:33] Speaker 00:
And I don't think it really is disputed that there were sales.

[00:20:36] Speaker 01:
Well, let me ask you this question.

[00:20:38] Speaker 01:
There's certainly abundant case law, the tools of the trade case law, the case law talking about firearms, and there's a case law talking about cash and how they're indicative of illegal activity.

[00:20:54] Speaker 01:
Okay.

[00:20:56] Speaker 01:
That is true, but if...

[00:21:02] Speaker 01:
Under that case law, it does not posit, does it, the situation that we have here where marijuana is an illegal business federally, but it is not statewide.

[00:21:15] Speaker 01:
And so it is a cash business.

[00:21:17] Speaker 01:
I mean, what inference do you draw from the fact that they have cash when they would have cash because they can't use banks?

[00:21:23] Speaker 00:
Well, Your Honor, I would submit that they can't use banks because it's illegal federally.

[00:21:28] Speaker 00:
And if they were to use, the reason banks won't

[00:21:31] Speaker 00:
do business with them is because it could bring up federal money laundering charges, because the specified unlawful activity would be drug distribution.

[00:21:43] Speaker 00:
And so the fact that it's a cash business still provides that inference that it's illegal activity under federal law.

[00:21:50] Speaker 03:
So your response to the chief's question is that those tools of the trade cases are equally applicable here, even though it is lawful under state law?

[00:22:01] Speaker 00:
Yes, Judge Rossman.

[00:22:03] Speaker 00:
As this court explained in the Tonglin appeal, Mr. Wing's co-defendant, whether it's lawful under state law or not is ultimately irrelevant.

[00:22:16] Speaker 00:
And unless the court has any further questions.

[00:22:19] Speaker 03:
Why was this case brought at all in light of the appropriations, writer?

[00:22:23] Speaker 00:
I think a large part of it had to do with the fact that Mr. Yee, it originated with Mr. Yee, he was tracked, he was taking things out of state.

[00:22:32] Speaker 00:
And so, by taking things out of state, it was not being done consistent with state law.

[00:22:39] Speaker 01:
I do have a question relative to the law of the case.

[00:22:41] Speaker 01:
There is some pushback that's given to the law of the case's application here in the reply brief in which there's the suggestion that the evidence of the guilt of trial is substantially different than the evidence applied to his co-defendant or that that's a substantially different exception to the law of the case doctrine applied in this case.

[00:23:05] Speaker 01:
Since it was raised in the reply brief,

[00:23:07] Speaker 01:
I wanted to give you an opportunity to address what's your view on whether that particular exception to the law of the case doctrine would have any resonance here.

[00:23:17] Speaker 00:
So I'd have two responses.

[00:23:18] Speaker 00:
The first response would be the substantially different has to deal with substantially different in a subsequent case.

[00:23:25] Speaker 00:
The evidence with Mr. Wing and the evidence with Mr. Lin was the exact same evidence.

[00:23:30] Speaker 00:
They were tried before the same jury, the same evidence was put on.

[00:23:34] Speaker 00:
But even setting that aside, well the evidence, actually I have two more responses.

[00:23:43] Speaker 00:
The first one being that this is the law of the case.

[00:23:48] Speaker 00:
We're talking about law, we're not talking about facts.

[00:23:50] Speaker 00:
We're not even talking about the application of the law to the facts of the facts of the law.

[00:23:58] Speaker 00:
Law of the case doctrine, specifically as it deals with the appeal of the grant of the government's motion in Lumine, this court decided evidence regarding the defendant's knowledge of legality under state law or legality under state law was irrelevant.

[00:24:14] Speaker 00:
It doesn't matter what the facts are, irrelevant evidence is still irrelevant.

[00:24:19] Speaker 00:
Mr. Lin and Mr. Wing were charged with the exact same crime.

[00:24:23] Speaker 00:
There's no reason why

[00:24:25] Speaker 00:
the evidence would be relevant as to Mr. Wing, but not irrelevant as to Mr. Lin.

[00:24:30] Speaker 01:
Well, while this talk, and shifting slightly, while this talk about black market marijuana, I mean, if the premise all along is that distributing marijuana is illegal, full stop as a federal matter, well, who cares whether it's black market marijuana or not, and why was the government focused on that?

[00:24:53] Speaker 00:
So why was the black market, again, goes back to everything with Mr. Yee and the fact that it was being taken out of state?

[00:25:01] Speaker 00:
Could there have been an objection under 403?

[00:25:04] Speaker 00:
Possibly.

[00:25:05] Speaker 00:
I'm not going to say

[00:25:07] Speaker 00:
it would have been definitively sustained or overruled, but there simply was no objection and it wasn't, some sort of 403 argument wasn't raised either in the district court or on appeal.

[00:25:18] Speaker 01:
That's not before us, but it is not your contention that whether it was black, is it your view that whether it was black market marijuana or not is a relevant fact in this prosecution?

[00:25:29] Speaker 00:
I would submit it's relevant.

[00:25:30] Speaker 00:
I don't think it's

[00:25:32] Speaker 00:
necessary force on the sufficiency claim.

[00:25:35] Speaker 00:
I don't think whether it's black market or not is relevant to this court's decision.

[00:25:40] Speaker 00:
I think it perhaps provides additional support as to knowledge, as to certain elements of the offense.

[00:25:50] Speaker 04:
How?

[00:25:51] Speaker 04:
I'm confused by that.

[00:25:53] Speaker 04:
What did it have to do with anything as far as the charge against this defendant or any of the defendants?

[00:26:01] Speaker 00:
So to the extent that a reasonable jury or a jury could find that Mr. Wing, and I think there is evidence and a jury could draw this inference, that Mr. Wing knew about what was happening with Mr. Yee and how all of this was unfolding, the fact that he was also in violation of Oklahoma law and running a black market side, essentially a black market component of the overarching

[00:26:29] Speaker 04:
But it was totally not necessary.

[00:26:33] Speaker 00:
And that's why I would submit there might have been a 403 objection that could have been raised.

[00:26:38] Speaker 01:
And in fact you excluded evidence related to state law, right?

[00:26:43] Speaker 01:
So I mean that doubly makes it irrelevant.

[00:26:46] Speaker 00:
And the jury was instructed not to consider whether it was lawful under state law or not.

[00:26:53] Speaker 04:
Seems like the jury could have been pretty confused about the evidence of black market sales versus not being told why it was black market or what Oklahoma law provided.

[00:27:07] Speaker 00:
Your Honor, I will admit that if I had free rein to rewrite the record to not include references to black market, I would do so.

[00:27:16] Speaker 00:
But as far as the issues before this court, I think ultimately the question of black market is red herring.

[00:27:26] Speaker 00:
And unless the court has any further questions?

[00:27:30] Speaker 00:
No.

[00:27:31] Speaker 00:
I would ask that you affirm the judgment in the sentence below.

[00:27:33] Speaker 00:
Thank you.

[00:27:37] Speaker 01:
You ended up with no time, right?

[00:27:40] Speaker 01:
I'm sorry, Judge.

[00:27:40] Speaker 01:
Did you end up with any time for rebuttal?

[00:27:43] Speaker 01:
I don't think so.

[00:27:44] Speaker 01:
That's your time.

[00:27:45] Speaker 01:
Oh, that's his time?

[00:27:45] Speaker 01:
He had two minutes?

[00:27:46] Speaker 01:
Okay, please.

[00:27:48] Speaker 01:
Two minutes over.

[00:27:50] Speaker 02:
I think I can keep this brief, Judge.

[00:27:52] Speaker 02:
I have nothing further to add, but if the court has any questions, I'm happy to answer them.

[00:27:57] Speaker 01:
I think not.

[00:27:58] Speaker 01:
So thank you.

[00:27:59] Speaker 01:
Have a good day.

[00:27:59] Speaker 01:
Thank you.

[00:28:00] Speaker 01:
All right.

[00:28:01] Speaker 01:
The case is submitted.