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Case number 13-3075 at L, United States of America versus Jerry Duane Burnett, appellate.

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Good morning.

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My name's Howard Katzoff.

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I represent Jesse Young.

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The first argument that I'm addressing are Jesse Young's 404B claims.

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Jesse Young.

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argues that the District Court entered in admitting 404B evidence.

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The 404B evidence was evidence of a prior similar conviction for drug trafficking and heroin.

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arising out of a police stop of his vehicle about six or seven years prior to the trial date.

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I believe the quantity at issue in that matter was 198 grams.

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He objected to the admission of the evidence and

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and submits that the court erred in admitting it.

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In particular, I want to address the 403 balancing, which I submit and argued that the case is similar to Linares in that this is not a classic quid or possession case, which

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which had been distinguished in Douglas and Pettiford and Cassell and other cases in terms of how the 404B applies to possession case.

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Here the evidence was mostly from a cooperating witness of his direct involvement in specific incidents, similar to Linares.

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My point in my argument... Linares specifically distinguished

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cases such as Crowder, which had been a fluid case.

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And we explained all this in Douglas, as you're aware, I'm sure, in pretty great detail about why Linares was a cabin.

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I would use that word.

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I think it was a different beast or whatever the term is because of the facts in that case involving the use of the gun and the witnesses.

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My point is that

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that it was argued that it wasn't, even though intent and knowledge are formal issues in the case, they were very weak in this case to the point that they were very weak grounds for admission.

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Can you say more about that specifically?

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What is the evidence that

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Why is knowledge weak?

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One of the things that strikes me about the 404B evidence here is that the prior is possession with intent to distribute, and the sole charge that went to trial against your client here was conspiracy.

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So there's a difference there.

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Can you be a little bit more specific about what you think?

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Well, they both involved

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They both involved allegations of wholesale quantity of heroin.

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But my main point is that when evidence is used for intent knowledge,

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that there's an inherent risk of prejudice in those cases that have been recognized in a number of cases.

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Is that a 403 point?

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A 403 point, yes.

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Why are you jumping ahead to 403?

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I'm just, I know that you feel like you have a 403 argument and I don't want to...

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to keep you from making the argument that you think is best, but you had made the argument in your briefs about the threshold question under 404B based on Linares and is it that you read our decisions as largely foreclosing that line of argument?

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You know, I don't think that Linares forecloses it for the reasons that I started to give, even though it's pigeonholed, because of the nature of the evidence.

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The cooperating witness in this case says he met with my client Jesse Young, that Jesse Young provided heroin on these series of trips to New York.

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So there's just direct evidence.

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There's not constructive possession.

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There's not personal use.

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There's not possession of some unknown substance.

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There's none of those kinds of issues raised that are raised in many of the other kinds of cases.

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So I thought the threshold issue is still there and very close to Linares.

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But being close, and I laid that out in my brief, I wanted to focus more on

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the inherent risk of prejudice when it's admitted for intent knowledge.

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Absence of mistake really wasn't an issue here.

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So the three things the judge instructed on, the final instruction, is knowledge, intent, and absence of mistake.

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And the bottom line is, as has been recognized, the permissible inference when 404B evidence is used

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to establish intent is very, very close to the impermissible inference, and that is that if you did it before, he's likely to do it again.

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And the cases out of Circuit Miller-Lee and Haywood were drug cases that went into that analysis and recognized that the inherent

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dangers and risks of prejudice that exists when it's used for intent.

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So in a case where it's not otherwise a very material issue in the case, my argument is that it... But that's really inconsistent with Douglas, isn't it?

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Well, Douglas was... And Pettyford.

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I mean, those are cases post-Linares that really try to

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explain Crowder on the one hand and Linares on the other and draw the distinction.

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Linares was just possession.

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It was not a specific intent crime.

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As I read those, I draw the distinction to be possession with intent to distribute and the discussion being

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that where there is constructive possession cases, and generally in search warrant cases, search of car cases, where it's constructive possession, one of the ways to prove it is knowing possession or knowledge, the knowledge element, and we generally just don't have that.

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here because it doesn't have those kind of facts, and dominion and control.

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So either of actual possession or actual commission of an act that constitutes the crime, or we have constructed possession, and the Douglas, Pettiford,

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Cassell lines of cases really deal oftentimes with the constructive possession notions of knowledge and intent.

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So we have a different, when it's intent to join the conspiracy, intent to distribute the drugs, which is what we had throughout this case.

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it's a different issue and it doesn't really, I don't think Douglas or Pettiford or Cassell control this case and the facts in this case.

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That's why I say Linares is closer.

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But on the 403 analysis, because it's being used for intent and that impermissible and permissible purposes are so close, it really was very prejudicial, not harmless in this case.

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Well, it's prejudicial.

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It's supposed to be prejudicial, right?

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It's supposed to be

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And so how do we distinguish the impermissible amount of prejudice?

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Well, that's the hard part, the unfair, the undue prejudice.

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Because obviously, if it didn't have some impact on the jury, we wouldn't call it prejudice.

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But the cases seem to suggest where the only issue is intent in these kinds of offenses, that the prejudice is unfair and undue.

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because as they posed the question in Miller and Lee, how exactly does that prior conviction go to show intent in this incident except for propensity?

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And it's just such a fine line that in these kind of cases.

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As to the error, I just would submit that

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In closing argument, there was a great deal of problems and holes poked, and I would submit that without the 404B, they would have been given greater weight by a jury, and it's the government's burden to prove there was not prejudice, and I don't think they can satisfy that yet.

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Okay, well, we're going to do this issue by issue, as you all know.

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So we'll give you rebuttal after the government on this issue, and then we'll do it that way for each succeeding issue as well.

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Thank you.

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Here from the government.

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Thank you, Your Honor.

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I'm Finola Tessier for the United States.

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Judge Howell did not abuse her discretion when applying Pettiford and Douglas.

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She found that the prior drug convictions were relevant to prove knowledge and intent to join the charge conspiracy, which was a conspiracy to possess with intent to distribute heroin.

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And that's a specific intent crime.

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So you said both knowledge and intent.

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You don't have a theory of knowledge in your brief, as far as I could tell.

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That the evidence was relevant to knowledge?

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That's correct, Your Honor.

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In the brief, relied primarily on intent because of defendants' reliance on Linares and because of this court's precedent, distinguishing Linares, particularly, on the intent grounds.

[00:10:06] Speaker 01:
Well, what could be?

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There is no knowledge theory, as far as I can tell.

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I mean, the evidence, is there an open issue as to knowledge as to which this evidence would have closed the loop?

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I didn't understand.

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I thought your argument was that the reason this evidence was germane was because it went somehow to intent.

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As to Thaxton in particular, he did not... Oh, I'm sorry, I'm talking about Jesse.

[00:10:27] Speaker 01:
We're talking about Jesse, that's right.

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Yeah, sorry, thank you for the clarification.

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Yeah, if you're just talking about Jesse, who the evidence at trial was that was from McDuffie, and McDuffie says Jesse sold to two other people to then resell.

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As to that... That's correct.

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There's no question about knowledge.

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As far as I could tell, your theory was that that evidence comes in because it somehow goes to intent.

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I think it goes, as to Jesse, it goes primarily to intent.

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You say primarily, because it must go to knowledge to show that he knew the substance was what the substance was, right?

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Or knowledge that his co-conspirators were doing what they said that they were going to do, which is distributing the drugs in question.

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Now, how would the prior, that's what I don't understand, and I'd love you to walk us through it a little bit more concretely what the inference is that the jury is supposed to draw, because the prior,

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It doesn't involve a conspiracy.

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It involves possession with intent to distribute.

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And the question is, how does that go to the disputed issue in this case, as to Jesse, which is whether he in selling to McDuffie and Faxton had an intent

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to enter into a conspiracy with them for further distribution.

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I don't see how the prior has really any logical relationship to his intent to conspire here.

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Well, it was a conspiracy, but it was a conspiracy to commit the same substantive offense for which Jesse had previously been convicted.

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And the government was required to prove that Jesse knew that when he was providing the drugs to the conspiracy that was charged when he was providing the drugs to Thaksin and McTuffy, that they were

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taking the drugs back down to DC in order to distribute them.

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How does his own director, if you will, I guess one could ask how Jesse's

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own possession with intent to distribute, which I guess crudely put is kind of a retail offense, would show that he intended in selling in this later time to be more of a wholesale offense.

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So if you're telling me as a juror, why should I

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What inference should I draw from this prior that's relevant to the conspiracy I need to find here?

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Just tell me what you want me to find based on this.

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I would point you to the inference that the government pointed out in closing arguments.

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which is that, quote, not everyone knows how to sell drugs, where to get them, how to cut and package drugs, what the price of drugs are.

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And that the prior crimes evidence makes it, quote, more likely that they knew how to sell drugs, that they knew what they were doing, and that they knew they were participating in a heroin conspiracy.

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And so the fact that Jesse knew about heroin distribution makes it more likely that he knew that what he was doing was engaging in heroin distribution and not simply... Is that the disputed issue

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this case?

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I mean, there was physical evidence of drugs.

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I thought the disputed issue had to do with whether what Jesse was doing was a conspiracy, not whether it involved heroin or whether he knew where to get heroin, but did it involve a conspiracy with those customers?

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In other words, was he engaged

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as some of the cases put it, did he have an interest in the resale?

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Did he do things like extend credit or that would be relevant to whether there's a conspiracy because he wants the whole business to succeed.

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But I guess I'm not seeing how it goes to the dispute of conspiracy intent question in this case.

[00:14:04] Speaker 05:
Well, certainly, I think, Your Honor, there are two things in that question.

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One is, was there other evidence of Jesse's participation in the conspiracy?

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And there certainly was other evidence of his participation in the conspiracy.

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But this court made clear in Douglas that you don't combine the relevance and 403 analysis.

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there's a threshold question of relevance.

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And that's simply whether or not it was relevant to prove some issue in the case and hear the specific intent to join a conspiracy that had at its heart a specific, a conspiracy to engage in a specific intent crime.

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And then the second question.

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And what that intent is, can you just spell out?

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The possession with intent to distribute the drugs, and the intent to distribute the drugs.

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So if it's just possession with intent to distribute, then

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The evidence that you had was that McDuffie says Jesse sold drugs, right, to us.

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And so what is the theory under which you were vulnerable on intent if somebody, if the jury believed McDuffie's testimony?

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But the question isn't whether or not the government was vulnerable on tent.

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Again, this is the 404B question.

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It's simply a threshold question.

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Was it relevant to prove something other than intent?

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But in Linares, I think we did look at whether the evidence could be relevant.

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In other words, is there a theory under which there was a vulnerability as to the element to which the evidence went?

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That was the whole point of Linares, I think.

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And this court has been careful to distinguish Linares to the very specific facts of the case, which is that no one could reasonably say that, no one could reasonably believe the witnesses that the defendant in Linares had a gun in his hand and yet believe that he didn't knowingly possess a gun.

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Whereas here, the jury could plausibly believe Mr. McDuffie's testimony that the drugs were provided to him by Jesse, but not necessarily believe that Jesse intended that those drugs be distributed in the Washington DC area.

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Exactly.

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And then the question is, how does a prior position with intent to distribute by Jesse

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aid a juror in finding that this was not just Jesse doing what he had previously been convicted of, which is retail sale, but actually something different, that he was conspiring with them for their further sale.

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I guess I'm still looking to you for more description of

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how that inference is bolstered by the evidence.

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And I would again point you to the careful argument at closing that the fact that Jesse had before sold, engaged in the distribution of drugs means that he understands, for example, what drug quantities are likely to be sold as opposed to for personal use.

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If he had never sold heroin before,

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He might not know that 60 grams is actually a drug distribution quantity as opposed to a personal use quantity.

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And so if he had never distributed drugs before, he might plausibly have believed that he was giving the drugs to Thaxton and McDuffie for their own personal use.

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Go ahead.

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But the fact that he had engaged in drug distribution before makes him know that the quantities and the regularity with which he was providing the drugs were drug distribution amounts, and therefore that he should reasonably have expected that these drugs were being distributed in the Washington, D.C.

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area.

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Do you think, more broadly, that the theory of Linares – not the result – the theory of Linares, the Judge Srinivasan mentioned, is consistent with the theory of Crowder and Douglas and Pettiford?

[00:17:51] Speaker 05:
I think that courts have started to, the Seventh Circuit in particular, has started to distinguish 404B evidence when it comes in in cases where specific intent or the intent of the defendant is not put at issue.

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And I think Linares could arguably fall within that class of cases where intent is not at issue.

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But even in the Seventh Circuit and the Anbach decision in Gomez, was very careful to distinguish between cases where there's just no question as to intent.

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And, you know, those are not very many cases.

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It's a small number of cases where intent is just not an issue.

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Obviously, Judge Garland had a serious question about the consistency of Linares with Crowder, because he didn't join Linares for exactly that reason.

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That's correct.

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And I think those are the cases where the courts have found that intent is not an issue in all.

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There are a very small number of cases.

[00:18:45] Speaker 01:
You're being very careful, and that's understandable.

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But I think Judge Garland then wrote Pettiford, which comes later.

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And what he said is, in distinguishing Linares,

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And this is at the bottom of 589.

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But this is not a case in which the jury had to either believe the witnesses and conclude that the defendant knowingly possessed the crack with intent to distribute it or disbelieve them and find that he did not possess the crack at all.

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And that passage to me suggests that there's no ironclad distinction between Linares and a specific intent situation such that Linares had just taken off the table.

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It applies Linares to the context of possession with intent to distribute and asks about the particulars of the case.

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and says, is this a case in which the only evidentiary possibility is that the person either possessed for the net to distribute or didn't possess it at all?

[00:19:31] Speaker 05:
If that's the distinction with Lonaris, then this case is distinguishable from Lonaris because, as I mentioned before, this is a case in which one could believe, for example, that Jesse had provided the drugs to Thaxton and McDuffie without knowing that they were going to be distributed.

[00:19:47] Speaker 01:
To redistribute, right.

[00:19:48] Speaker 01:
Exactly, to redistribute them in DC.

[00:19:49] Speaker 01:
And that's an interesting argument.

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Can I ask you one question about this, because I'm not exactly sure what to do with this, which is that if the theory under which the evidence comes in is that it goes to whether Jesse had the requisite intent

[00:20:00] Speaker 01:
with respect to the redistribution by McDuffie and Baxter.

[00:20:05] Speaker 01:
Then what do we do with the fact, for example, that when the judge gives the limiting instruction, the limiting instruction has nothing to do with that theory at all.

[00:20:13] Speaker 01:
So I'm looking at J28A29.

[00:20:18] Speaker 01:
And at that point, we can get to the closing instruction later, but at that point what the jury is told is, you may use this evidence only for the limited purpose of determining whether the government has proved beyond a reasonable doubt that the particular defendant at issue intended to possess the narcotics charged in this case knowingly and on purpose and not by mistake or by accident.

[00:20:38] Speaker 01:
That's only about knowledge.

[00:20:39] Speaker 01:
It has nothing to do with the intent theory that you're relying on now, which leaves me thinking, well, then what the jury was allowed to do with the evidence, in fact what the jury was told to do with the evidence, has nothing to do with the permissible purpose for which it was admitted.

[00:20:53] Speaker 05:
That particular instruction was not objected to.

[00:20:57] Speaker 05:
And I would note that it does actually refer to intent, because it's about the defendant's intent to possess the narcotics charge at issue.

[00:21:03] Speaker 01:
But that's intent to possess, which doesn't have to do with the intent that you're talking about, which is the intent with vis-a-vis redistribution.

[00:21:10] Speaker 01:
And as to objection, they objected to the evidence, period.

[00:21:13] Speaker 01:
So then the limiting instruction comes along.

[00:21:15] Speaker 01:
And I guess you could say, well, we repeat our objection to the introduction of the evidence at all.

[00:21:22] Speaker 01:
Maybe they have to do that, but it seems like it's asking a lot to say, well, on the hypothetical that you don't want to engage in, which is that the evidence comes in, that you then have to object to the way in which the evidence comes in.

[00:21:33] Speaker 01:
Maybe that's required, but it seems to be asking a lot.

[00:21:36] Speaker 05:
But they could object to the form of the instruction as well.

[00:21:39] Speaker 05:
But the defendants here weren't, well, Mr. Burnett was charged with intent, but Jesse Young was not.

[00:21:48] Speaker 05:
and was not charged with possession with intent to distribute.

[00:21:55] Speaker 05:
He was charged with conspiracy to distribute or to possess with intent to distribute.

[00:22:00] Speaker 05:
And so to the extent that there was any possible error in the district court's initial jury instruction saying

[00:22:05] Speaker 05:
You can use this to determine whether or not they possessed the drugs knowingly.

[00:22:10] Speaker 05:
Well, they weren't charged with possessing the drugs knowingly, so they weren't instructed to do something that would result in them being convicted for something they shouldn't be convicted.

[00:22:19] Speaker 01:
But then they weren't told what to do with the evidence.

[00:22:22] Speaker 06:
That was the very inference that you were saying the evidence was needed for.

[00:22:27] Speaker 06:
was to show that Jesse knew where to get drugs, he knew the quantities in which it would be distributed, that those were the kinds of facts.

[00:22:36] Speaker 06:
But actually, and I think the final jury instruction that the judge gives the jury before they go out talks about conspiracy to distribute and possess within, I guess what the other defendants possess within tends to distribute, or conspiracy to on JA 1030.

[00:22:58] Speaker 06:
But I still need your help in seeing how a prior that is not a conspiracy helps to show a conspiratorial intent.

[00:23:10] Speaker 05:
This court doesn't require exact symmetry between the prior conviction and the current charge in order to find that it's relevant to show knowledge and intent.

[00:23:20] Speaker 05:
And there is a lot more symmetry than simply this was a conspiracy and the prior was something else.

[00:23:27] Speaker 05:
This was a conspiracy to do that substantive offense for which he had previously been convicted.

[00:23:33] Speaker 05:
And so of course, the question of conspiracy is, did they agree to do the thing to commit that substantive crime?

[00:23:41] Speaker 05:
It's an inchoate version of the substantive crime.

[00:23:44] Speaker 05:
And so I think that very much does go to intent.

[00:23:48] Speaker 05:
Particularly in conspiracy, the sole question is intent.

[00:23:51] Speaker 05:
Whether or not there was an agreement, whether or not they intended to do this together.

[00:23:56] Speaker 05:
And so, if anything, it is more important in a conspiracy case to have relevant intent evidence.

[00:24:04] Speaker 05:
And in fact, the Seventh Circuit en banc decision in Gomez made that point, that in conspiracy cases, it's important to be able to prove up the specific intent of the defendants.

[00:24:17] Speaker 01:
If Jesse has previously possessed with intent to distribute, which is all we know from the prior, right?

[00:24:22] Speaker 01:
We're not talking about conspiracy.

[00:24:23] Speaker 01:
All we know from the prior is that he possessed with intent to distribute.

[00:24:26] Speaker 01:
That's correct.

[00:24:26] Speaker 01:
If that evidence is introduced, then it bolsters the government's case that when he distributes to McDuffie and Thaxton, that he's more likely to understand that then they're possessing with intent to distribute.

[00:24:42] Speaker 00:
That's correct.

[00:24:42] Speaker 01:
And therefore the conspiracy would charge

[00:24:44] Speaker 01:
which goes to whether they possess, there was an agreement for them to possess with intent to distribute, is more likely to be within the mindset of Jesse.

[00:24:57] Speaker 05:
That's correct, and perhaps it could have been better

[00:25:01] Speaker 05:
that's what we're trying to do.

[00:25:02] Speaker 05:
We're trying to make sure that he's not parsed out like that in the original in the initial jury instruction as opposed to the latter during instruction, which at the latter during instruction before the jury deliberated, did say that it was relevant to show that he committed the conspiracy to possess to distribute and possess to

[00:25:19] Speaker 05:
But perhaps it's almost like that.

[00:25:21] Speaker 01:
I'm sorry, where was that?

[00:25:21] Speaker 05:
That was at 1029 and 1030.

[00:25:24] Speaker 01:
So this is, and I honestly don't know the answer to this question, so I'm asking it with the hope that you can be helpful, which is that if we're in this situation as a result of Linares and Pettigrew and all these cases where we're talking about particular theories under which the evidence is relevant because other theories are foreclosed by the logic of Linares, let's just suppose that that's where we are.

[00:25:46] Speaker 01:
then what do we do with the situation in which the instruction isn't, even the latter instruction that you just pointed to, isn't tethered to any particular theory?

[00:25:54] Speaker 01:
It's kind of a blank at all purpose.

[00:25:56] Speaker 01:
Consider it for intent.

[00:25:58] Speaker 01:
and consider for intent and knowledge and don't consider it for propensity, is the law just that as long as there's some particular sub-intent as to which the evidence is relevant that it's fine for the jury to get a general intent and knowledge instruction that's not tied to the particular theory?

[00:26:16] Speaker 01:
Is that the way that

[00:26:18] Speaker 05:
I think if we're in the world of, let's look at the particulars of this case, then the question is whether or not the district court abused its discretion.

[00:26:27] Speaker 05:
And that's why there's a deferential standard of review.

[00:26:30] Speaker 05:
Because, of course, it's easy to sit back months later or years later after the case and say, well, that precise instruction wasn't precisely the theory that ended up coming through a closing argument.

[00:26:43] Speaker 05:
But that's why the standard of review is abuse of discretion.

[00:26:46] Speaker 05:
Did the district court abuse her discretion in allowing this evidence in, allowing it in in a limited manner, and instructing the jury as such?

[00:26:53] Speaker 05:
And I think you can see that over the course of the trial, the judge's instruction became more specific.

[00:26:58] Speaker 05:
as the evidence came in and the theory under which the evidence was being admitted became more clear.

[00:27:05] Speaker 05:
Because, of course, it always becomes more clear over time.

[00:27:08] Speaker 01:
I think I agree with a lot of what you said, but I'm not sure the theory became more specific.

[00:27:11] Speaker 01:
In anything, it seems like it became more general, because at the outset, it was just, as I read it, it was basically knowledge and maybe a slight part of intent.

[00:27:20] Speaker 01:
But it was really about make sure that the possession was on purpose and not by mistake or accident.

[00:27:28] Speaker 01:
which that had nothing to do with the theory under which ultimately, in your view, the evidence was germane.

[00:27:35] Speaker 01:
It just has nothing to do with it.

[00:27:36] Speaker 05:
I don't believe it had nothing to do with it.

[00:27:38] Speaker 05:
There are many pieces to the puzzle that the government has to put together.

[00:27:42] Speaker 05:
One is, of course, that Baxson and McTuffy

[00:27:47] Speaker 05:
were possessing the drugs with intent to distribute it.

[00:27:50] Speaker 05:
They weren't charged with that, but they of course did possess some of the drugs in question.

[00:27:55] Speaker 05:
And then it's that they had agreed with Jesse and with Jerry that they were going to be distributing those drugs.

[00:28:03] Speaker 05:
Of course the central question for Jesse was, did he intend to join the conspiracy?

[00:28:09] Speaker 05:
But a related question is, were his co-conspirators possessing these drugs with the intent to distribute them?

[00:28:15] Speaker 05:
Because that's what he's charged with, agreeing with them that they were going to distribute those drugs.

[00:28:19] Speaker 05:
And so her instruction wasn't precise as to every aspect of which it may come in, but it did come in with respect to something that was important, which was the drugs, for example, in the back of Faxton's rental car, was he possessing them with intent to distribute them, which is, of course, very relevant to the question of whether or not he agreed with

[00:28:38] Speaker 01:
um jesse and with jerry that they would all get together and distribute trucks and so that seems right as a faxant it definitely i guess the question is as to as to jesse and i get it i think you're you're you're making a you're making the point that this was an instruction that was an all-purpose instruction it wasn't tethered to one particular individual which that's correct points well taken but

[00:28:59] Speaker 05:
And in closing, instead of having a single instruction for all of the defendants, the court had instructions that were specific to the defendants.

[00:29:09] Speaker 05:
And I think that was an important clarification.

[00:29:14] Speaker 05:
But that doesn't mean that the district court abused her discretion in earlier on in the case when the evidence was coming in, having a very short instruction saying consider this for a limited purpose and perhaps not calling too much attention to the evidence as it was coming in.

[00:29:27] Speaker 04:
Okay, why don't we hear rebuttal?

[00:29:30] Speaker 04:
Thank you.

[00:29:36] Speaker 00:
I used up my rebuttal time actually.

[00:29:38] Speaker 00:
We'll give you two minutes for this one or more if needed.

[00:29:45] Speaker 00:
With regard to Lenoris, I had indicated earlier that I believe that it tended to focus on distinguishing the possession and constructive possession elements that exist in the

[00:30:06] Speaker 00:
the places where intent and knowledge occasionally overlap and where they differ, but I didn't see Linares as being in conflict specifically because of those distinctions.

[00:30:22] Speaker 04:
But the theory of Linares, if read broadly, as some of the questions have indicated, could

[00:30:31] Speaker 04:
render it inconsistent, it seems to me, with Crowder.

[00:30:35] Speaker 04:
That's why I think Douglas, footnote 9 and 598, and then Pettiford, Judd Trinnebosom, read one part of it, there's another part of it that distinguishes Linares on the ground, that Linares was a possession case, and this

[00:30:48] Speaker 04:
Pettyford was not a pure possession case.

[00:30:53] Speaker 04:
And so we're left with these factual distinctions.

[00:30:55] Speaker 04:
That's why I asked the question.

[00:30:57] Speaker 04:
I think the theories of these cases are frankly inconsistent.

[00:31:00] Speaker 04:
Just put my cards on the table.

[00:31:01] Speaker 04:
But the court has drawn factual distinctions to kind of say possessions on one side of the line,

[00:31:08] Speaker 04:
I don't know.

[00:31:11] Speaker 04:
I don't know.

[00:31:13] Speaker 04:
I don't know.

[00:31:13] Speaker 04:
I don't know.

[00:31:14] Speaker 04:
I don't know.

[00:31:15] Speaker 04:
I don't know.

[00:31:16] Speaker 04:
I don't know.

[00:31:17] Speaker 04:
I don't know.

[00:31:20] Speaker 00:
I guess reading them all together, I can see where the court is concerned.

[00:31:27] Speaker 00:
When I read them, I thought that Linares just applied the theory to other fact patterns.

[00:31:37] Speaker 00:
And I thought that was the point of Linares.

[00:31:41] Speaker 00:
And I didn't see it to be in direct conflict when I reviewed it.

[00:31:50] Speaker 04:
And there are cases that you're aware of, court of appeals cases, that have said evidence like this, a prior distribution, drug distribution offense, can't come in because the current offense is a conspiracy for drug distribution, to engage in drug distribution.

[00:32:10] Speaker 00:
Cannot come in?

[00:32:11] Speaker 04:
Yeah.

[00:32:12] Speaker 00:
I don't think I've seen that rule as a blanket rule.

[00:32:17] Speaker 04:
Have you seen it at all, anywhere, ever?

[00:32:20] Speaker 00:
can't think right now the case where it didn't come in for that reason.

[00:32:29] Speaker 00:
I think it still has to be relevant to a material issue in the case.

[00:32:33] Speaker 00:
And it becomes a little more difficult to be relevant to a material issue in the case sometimes if it is a quid as it relates to a conspiracy or a distribution as it relates to a quid.

[00:32:47] Speaker 00:
But not aware of cases.

[00:32:47] Speaker 04:
You haven't seen cases drawing that line.

[00:32:50] Speaker 00:
I have not seen that line.

[00:32:52] Speaker 04:
And the last question, I have standard of review, which the government emphasized.

[00:32:56] Speaker 04:
So I suppose one district judge could take a broader view of Linares, one district judge could take a narrower view of Linares, and we should affirm both.

[00:33:06] Speaker 04:
And if we're really serious, which, you know, that's a good question.

[00:33:10] Speaker 04:
Are we really serious about the standard of review, abuse of discretion?

[00:33:14] Speaker 04:
I'm not sure that actually is the right standard of review for this kind of question, but it's what our cases say.

[00:33:20] Speaker 04:
Isn't that what the upshot is, is that the district court gets some gray area in which to operate?

[00:33:26] Speaker 04:
What kind of reading to take of Linares?

[00:33:30] Speaker 00:
I would think that

[00:33:35] Speaker 00:
That the district court under the abuse, if that is the correct standard, then would have some leeway, but I would submit in this case.

[00:33:46] Speaker 00:
Because the proffered evidence was so weakly relevant to any material issue that whatever standard of use of discretion or whatever the lines drawn in Linares or Crowder or the others, that this still falls on the side of inadmissibility.

[00:34:08] Speaker 00:
on the 404B analysis, and then particularly on the 403 analysis.

[00:34:15] Speaker 01:
I have one follow-up question, which I'll leave it to you.

[00:34:17] Speaker 01:
Go ahead.

[00:34:18] Speaker 01:
To something Judge Kavanagh asked, which is that he asked about the distinction between conspiratorial intent and other intent.

[00:34:25] Speaker 01:
Is there any case that draws that distinction?

[00:34:27] Speaker 01:
If you go one level broader, is there any case that applies a Linares-like logic to a circumstance that involves a specific intent crime at all?

[00:34:36] Speaker 01:
Do you know of any case that says that in a specific intent situation where, you know, Rule 404B specifically has the word intent as a basis for evidence to come in, that we're not going to admit the evidence on a Linarist epithety?

[00:34:56] Speaker 01:
I didn't immediately come up with one, but may I?

[00:34:58] Speaker 06:
Isn't that in Miller or, I mean, not in our circuit?

[00:35:06] Speaker 00:
I'm not sure, you know, I mean, Lenaris is quite specific, you know, and I'd have to think about cases that might be similar in terms of the kinds of factual distinctions I've been drawing where you have a series of distributions, you have a series of hand-to-hand, you have those kind of facts.

[00:35:27] Speaker 00:
I would think that the Lenaris approach applies in those kind of settings

[00:35:33] Speaker 00:
for the same reasons.

[00:35:35] Speaker 00:
But I can't think of a case as I stand here.

[00:35:38] Speaker 01:
Okay, I appreciate it.

[00:35:38] Speaker 04:
Thank you.

[00:35:40] Speaker 00:
Thank you.

[00:35:42] Speaker 04:
We'll turn to the motion to suppress issue.

[00:35:50] Speaker 02:
Good morning, Your Honors.

[00:35:51] Speaker 02:
I'm Vince Jankowski, representing Faxton Young Jr.

[00:35:54] Speaker 02:
I've been appointed by this court, and I wish to take the opportunity at this time to thank the court for the appointment.

[00:36:01] Speaker 02:
Your Honor, I'm asking

[00:36:03] Speaker 02:
the court to reverse Mr. Young's conviction because the illegal search and seizure on Interstate 95 resulted in seizure of evidence which was essential to the government's prosecution of this case.

[00:36:19] Speaker 02:
The government contended and the district court accepted two bases for holding up the traffic stop was lawful.

[00:36:26] Speaker 02:
One, the pattern of activity that they alleged was previously exhibited.

[00:36:31] Speaker 02:
And secondly, the alleged traffic stop.

[00:36:34] Speaker 02:
I respectfully submit to the court that there was no pattern and there was no traffic violation.

[00:36:41] Speaker 04:
There's definitely a pattern.

[00:36:43] Speaker 04:
There are trips where they travel to a house, leave the phone, drive up 95.

[00:36:48] Speaker 04:
We've got three trips like that.

[00:36:51] Speaker 02:
The evidence that was in the possession of the government at the time of the seizure, I think in the government's brief they kind of conflate the evidence that was presented at trial versus what was known to the government at the time of the stop, and it's the latter that's important.

[00:37:08] Speaker 02:
The government didn't have the text messages from Thaxton to Jesse because those were seized from Thaxton's phone subsequent to the stop.

[00:37:17] Speaker 06:
But I think, Mr. Janis-Hacksey, what the government did have was trips going up to Columbia, then Thaxton and McDuffie traveling north, stopping for about an hour and a half, turning around, and then selling within D.C.

[00:37:32] Speaker 06:
to confidential informant within a few days thereafter, GPS tracking to McDuffie's address.

[00:37:41] Speaker 06:
I'm sorry, GPS tracking to McDuffie's phone, to Jesse's address.

[00:37:45] Speaker 06:
on the ground surveillance of this last transaction in Philly.

[00:37:49] Speaker 06:
It seems like a lot of information.

[00:37:52] Speaker 02:
I don't think the government had all that information.

[00:37:55] Speaker 02:
What they had and it's important to parse out what they knew on January 21st and what they know today.

[00:38:02] Speaker 02:
What was introduced at trial at the time of the stop.

[00:38:05] Speaker 02:
They knew that on three different occasions

[00:38:08] Speaker 02:
McDuffie's phone and his vehicle both traveled to essentially within a quarter of a mile of Thaxton Young's residence in Columbia, Maryland.

[00:38:18] Speaker 02:
The GPS is just simply not that exact to determine.

[00:38:24] Speaker 02:
It's pure spin when they say they went to Thaxton Young's address.

[00:38:28] Speaker 02:
He went within a quarter mile of Thaxton Young's address and there's no evidence that on those three occasions he's even stopped at the same place.

[00:38:36] Speaker 02:
Then, so they know that they go to some location, McDuffie and his vehicle and his phone go to some location in Columbia, Maryland.

[00:38:45] Speaker 02:
The vehicle stays stationary.

[00:38:48] Speaker 02:
The phone travels up Interstate 95 to the New Jersey Turnpike, which is important, to New York.

[00:38:55] Speaker 02:
Now, the significant thing here, at the time they had a GPS tracker on Faxton's vehicle too.

[00:39:02] Speaker 02:
Faxton's vehicle doesn't go to New York.

[00:39:07] Speaker 02:
There is no evidence of what happened to Thaxton's vehicle, but it doesn't go to New York.

[00:39:13] Speaker 02:
So it's just McDuffie's phone that goes to New York.

[00:39:17] Speaker 02:
And it goes to some unspecified location in the Bronx, New York.

[00:39:21] Speaker 02:
At the time, they didn't know about Next Pizzeria.

[00:39:23] Speaker 02:
That came after they arrested and flipped McDuffie.

[00:39:27] Speaker 02:
So really, that's all they have.

[00:39:29] Speaker 04:
But they have the sales afterwards, right?

[00:39:32] Speaker 02:
Two, three, sometimes five days later, there's a sale.

[00:39:36] Speaker 02:
Without the sales, obviously.

[00:39:38] Speaker 02:
Yeah, the sales are there.

[00:39:38] Speaker 04:
The sales are the key.

[00:39:40] Speaker 04:
They take these trips, come back, and then there are the sales to the confidential informant.

[00:39:44] Speaker 02:
It's not like it's the next day or two days.

[00:39:46] Speaker 02:
I mean, I think it's pretty thin to say that McDuffie's getting his drugs in New York to begin with, because it's not like it's the next day, right?

[00:39:57] Speaker 02:
You know, a few days later sometimes, I think one case it was like a week later.

[00:40:01] Speaker 06:
Or more.

[00:40:02] Speaker 06:
One of the questions though is why is the government putting the resources into having agents on the ground in Philly look at these guys?

[00:40:13] Speaker 06:
It's because they have reason to believe that this is a pattern of drug trafficking.

[00:40:21] Speaker 02:
The question is whether or not their suspicion is reasonable enough to warrant the traffic stop.

[00:40:29] Speaker 02:
And I submit that it's not.

[00:40:31] Speaker 02:
So we have these three times where McDuffie's phone travels to New York.

[00:40:38] Speaker 02:
We don't know his mode of transportation.

[00:40:40] Speaker 02:
We have taken a bolt bus out there, for all we know.

[00:40:44] Speaker 06:
Then on January 21st, but I'm not sure that undercuts the government's theory.

[00:40:48] Speaker 06:
They know traveling shortstop return sometime after sale of drugs, traveling north, shortstop turnaround back in D. C. Some days later selling drugs, traveling north, shortstop turnaround, come back some days later selling drugs.

[00:41:08] Speaker 06:
And then when they go up there, they're concerned enough

[00:41:11] Speaker 06:
But they're looking at what's going on in Philly, and then they stop them.

[00:41:15] Speaker 02:
It seems like... But what happens is then, I mean, even if there's a pattern, and a pattern that's indicative of selling drugs, even if given that there's a pattern that far,

[00:41:28] Speaker 02:
on January 21st, the pattern breaks down because they didn't go to New York.

[00:41:33] Speaker 02:
They take the left fork of the road and take out 95C Judge Cavanaugh smiling.

[00:41:38] Speaker 02:
He knows that's the fork that your girl always talks about, right?

[00:41:43] Speaker 02:
I'm just glad somebody else knows what I was talking about when I wrote that.

[00:41:48] Speaker 02:
But the pattern then breaks down.

[00:41:51] Speaker 02:
I mean, they don't go to New York.

[00:41:52] Speaker 02:
They go to Philadelphia.

[00:41:53] Speaker 02:
And it's like, these guys aren't going to New York.

[00:41:56] Speaker 02:
I could just see the agents thinking, OK, they're going to New York.

[00:42:01] Speaker 02:
They're not going to New York.

[00:42:03] Speaker 02:
And they're in Philadelphia.

[00:42:04] Speaker 02:
So if New York's the source city, and if Jesse's the source, they're not going to the source.

[00:42:11] Speaker 02:
They're going to Philadelphia.

[00:42:12] Speaker 02:
So then they do surveillance in Philadelphia.

[00:42:16] Speaker 02:
They see nothing suspicious in Philadelphia.

[00:42:19] Speaker 02:
They don't see Jesse in Philadelphia.

[00:42:22] Speaker 02:
And then they, so there's nothing to enhance their,

[00:42:29] Speaker 04:
their belief that this is suspicious.

[00:42:32] Speaker 04:
Although it's a quick turnaround, right?

[00:42:35] Speaker 04:
You don't usually drive to Philadelphia for a meal.

[00:42:38] Speaker 02:
People do things in Philadelphia that are a quick turnaround.

[00:42:42] Speaker 02:
It's not that far.

[00:42:43] Speaker 02:
You can go shopping in Philadelphia, meet somebody in Philadelphia, have lunch in Philadelphia, do something in Philadelphia.

[00:42:48] Speaker 02:
A lot of innocent travelers go from here to Philadelphia and don't stay the night.

[00:42:54] Speaker 02:
They stay a few hours.

[00:42:56] Speaker 02:
The surveillance didn't show anything suspicious.

[00:43:01] Speaker 02:
So even that, there was no pattern.

[00:43:07] Speaker 02:
There was nothing to suggest that, number one, Thaxton even went to New York on those previous occasions.

[00:43:16] Speaker 02:
And there was nothing to suggest that in Philadelphia there was anything sinister going on, unless you're going to stop

[00:43:25] Speaker 02:
Mr. McDuffie and anybody he's traveling with him, any time they go north.

[00:43:31] Speaker 02:
And that's a real stretch.

[00:43:34] Speaker 02:
I mean, any time McDuffie goes north, if you can pull him over in the car, then if you're riding with Mr. McDuffie, then you're subject to a siege, a surge.

[00:43:44] Speaker 02:
And I think that's just too broad a thing for the Fourth Amendment accountants.

[00:43:49] Speaker 04:
OK.

[00:43:50] Speaker 04:
One, we'll give you two minutes for rebuttal, and we'll hear from the government.

[00:43:53] Speaker 02:
OK.

[00:43:53] Speaker 02:
um can I just I know it's not over my time I just wanted to go over on the on the uh the traffic stop the other ground for the yes I think we've got the video there and you can see as the as the Nissan Road which Mcduffie and uh and uh Mr. Thackson Young were in they were following a car the car in front speeds up

[00:44:16] Speaker 02:
And then the car that McDuffie was driving also speeds up, OK?

[00:44:22] Speaker 02:
And then the car in front slows down.

[00:44:26] Speaker 02:
You see that.

[00:44:27] Speaker 02:
And then there's what the engineers call perception-reaction time.

[00:44:30] Speaker 02:
You don't immediately respond to a stimulus.

[00:44:32] Speaker 02:
It takes a little time for your brain to process, this is happening.

[00:44:35] Speaker 02:
This car is slowing down in front of me.

[00:44:37] Speaker 02:
I need to do something.

[00:44:39] Speaker 02:
In that less than a second, the officer pulls one up and says, it's following too close.

[00:44:44] Speaker 04:
Everyone on 95 drives like that.

[00:44:46] Speaker 04:
That's your point.

[00:44:47] Speaker 02:
Yes.

[00:44:48] Speaker 04:
All right.

[00:44:49] Speaker 02:
And I just, well, unless the court wishes to hear about the further delay of the, once the traffic stop was commenced, does the court wish to hear the motion?

[00:44:58] Speaker 02:
Why don't we hear from the government, and then we'll ask Sean to reply.

[00:45:00] Speaker 06:
I just want to ask Mr. Janikowski, did Thaksin Young join Jesse Young's 404B argument?

[00:45:05] Speaker 02:
I do, yes.

[00:45:07] Speaker 02:
Thank you.

[00:45:18] Speaker 05:
Baxson's argument presupposes that this was a normal traffic stop.

[00:45:23] Speaker 05:
But it wasn't, of course.

[00:45:24] Speaker 05:
His rental car was stopped because, based on the DEA investigation, there was probable cause to believe that there were drugs in the car.

[00:45:32] Speaker 05:
But even if you find that the evidence didn't amount to probable cause, it certainly amounted to reasonable suspicion to pull the car over and then request a canine, who then alerted to the presence of narcotics, creating probable cause to search the car.

[00:45:47] Speaker 06:
If we thought there weren't independently probable cause based on the pattern, how could the reasonable suspicion give rise to bringing a drug sniffing dog?

[00:45:57] Speaker 06:
I thought the reasonable suspicion was that he was falling too close, or the reasonable suspicion is based on what?

[00:46:01] Speaker 05:
So the district court here found that the DEA investigation created probable cause to pull the car over and search it.

[00:46:09] Speaker 06:
But assuming not probable cause, then you're saying reasonable suspicion regarding the drugs.

[00:46:14] Speaker 05:
That's right.

[00:46:15] Speaker 05:
So there was that even if the amount of evidence that the DEA had wasn't enough to meet the probable cause standard, it was certainly enough to meet the lower reasonable suspicion standard.

[00:46:25] Speaker 05:
And under the court's case law, reasonable suspicion of drug activity is sufficient to warrant pulling a car over and then calling a canine in order to sniff the car to determine then whether there's probable cause to search the car.

[00:46:40] Speaker 01:
So are you saying that the reasonable suspicion for the canine existed regardless of the grounds for the stop?

[00:46:45] Speaker 01:
In other words, suppose that the grounds for the stop are tailing.

[00:46:49] Speaker 05:
That's correct.

[00:46:51] Speaker 01:
And then would you say that at that point, no matter, it didn't matter what happened in the exchange between the officer and the individuals in the car, the fact that they gave answers that the officer thought were somehow suspicion raising.

[00:47:04] Speaker 01:
That's correct.

[00:47:04] Speaker 01:
None of that mattered, that because of what was already in the case, vis-a-vis the DEA, that the officer could have pulled the car over based on tailing and then said, oh, canine sniff.

[00:47:15] Speaker 05:
I disagree that it was that it didn't matter.

[00:47:19] Speaker 05:
It did matter in the sense that it added to the suspicion.

[00:47:22] Speaker 01:
I'm just saying what I'm saying is on your theory.

[00:47:24] Speaker 01:
You didn't need it.

[00:47:25] Speaker 01:
In other words, your theory is that regardless of whatever happened with the exchange between the officers and the individuals in the car, the officer could have pulled the car over based on tailing and then immediately ordered a canine sniff.

[00:47:35] Speaker 05:
But the officer could have also pulled the car over based on reasonable suspicion.

[00:47:39] Speaker 05:
So reasonable suspicion allows the officer could have pulled the car over for one of three reasons.

[00:47:44] Speaker 06:
Not reasonable suspicion vis-a-vis tailing, but reasonable suspicion vis-a-vis drugs.

[00:47:47] Speaker 05:
That's correct.

[00:47:48] Speaker 05:
So one, probable cause to believe that there were drugs in the car from the DEA investigation.

[00:47:53] Speaker 05:
Two, reasonable suspicion from the DEA investigation that there were drugs in the car.

[00:47:57] Speaker 05:
Or three, reasonable suspicion to believe that a traffic violation had occurred.

[00:48:00] Speaker 01:
Right, and my point is simply that if you base it on the first order of reasonable suspicion as you itemize them, then nothing that happens in the car matters vis-a-vis the canine sniff.

[00:48:09] Speaker 05:
It's not necessary.

[00:48:10] Speaker 05:
It's not necessary.

[00:48:11] Speaker 05:
It's not necessary, because at that point, the officer could have called the canine.

[00:48:15] Speaker 05:
Of course, there was additional indicia of illegal activity when he pulled them over.

[00:48:21] Speaker 05:
As soon as he pulled them over, it appeared that they were trying to get their story straight.

[00:48:25] Speaker 05:
McDuffie was the leader, even though

[00:48:27] Speaker 05:
The rental car was in Faxton's name.

[00:48:29] Speaker 05:
McDuffie was driving it.

[00:48:30] Speaker 05:
And when Officer Zinn directed his questions to Faxton, McDuffie answered.

[00:48:38] Speaker 05:
And then also, as Judge Kamenow had pointed out, they had just come back from Philadelphia.

[00:48:43] Speaker 05:
And now, of course, Trooper Zinn did not know at that time that they hadn't been there very long.

[00:48:48] Speaker 05:
But he did know that they were still very close to Philadelphia.

[00:48:50] Speaker 05:
And they couldn't answer why they had been in Philadelphia or what they were doing there.

[00:48:55] Speaker 05:
Now, it may be that that information, even if you think that information itself wasn't enough to provide reasonable suspicion, that information, along with the information that had been provided by the DEA to troopers in, that is, the DEA had an investigation and they believed that there were drugs in the car, that was certainly sufficient for the trooper to call the drug sniffing dog.

[00:49:22] Speaker 05:
The court has no further questions.

[00:49:23] Speaker 04:
Thank you.

[00:49:34] Speaker 02:
If the it has the government says there was reasonable, articulable suspicion to stop the vehicle just based on the what I submit as a very tenuous evidence of drug dealing, then there's a whole lot of people are going to be stopped on Interstate 95.

[00:49:50] Speaker 02:
A whole lot of innocent travelers are going to be pulled over.

[00:49:54] Speaker 02:
Now, certainly the officer didn't think

[00:49:56] Speaker 02:
And I don't think the EA agents thought they had reasonable, articulable suspicion.

[00:50:01] Speaker 02:
Otherwise, they would have told the Maryland State Trooper, stop this guy, get a drug dog, and search the car.

[00:50:09] Speaker 04:
So they have an explanation for that.

[00:50:12] Speaker 02:
But their explanation was that they weren't sure there was going to be drugs there.

[00:50:16] Speaker 02:
Well, you're never sure when you have probable cause.

[00:50:18] Speaker 02:
But it shows that they had... And you're not even half sure when you have probable cause.

[00:50:23] Speaker 02:
I think they were far less than half sure.

[00:50:26] Speaker 02:
They themselves were concerned that they didn't have reasonable articulable suspicion.

[00:50:33] Speaker 02:
I mean, they could have stopped them in Philadelphia.

[00:50:38] Speaker 02:
They were there in Philadelphia.

[00:50:40] Speaker 06:
But it makes sense that if they have suspicion or cause, but not certainty, and they have enough suspicion or cause that they value the ongoing investigation, that they don't want to jeopardize it, and so they want a cover, because they think, well, if we come up empty-handed this time, we still want to be able

[00:50:57] Speaker 06:
to follow these guys.

[00:50:58] Speaker 06:
So that seems to make some sense.

[00:51:02] Speaker 02:
That rationale is reliable with what the officer said.

[00:51:06] Speaker 02:
The officer said, develop your own probable cause.

[00:51:11] Speaker 02:
The DEA agents told him, develop your, and then what Zinn did, he did what the DEA agents

[00:51:18] Speaker 02:
told him to do, but what Rodriguez says he shouldn't do, and that is when he was talking to them at the window of their car, he was asking them questions, the purpose of which was to develop information from which he could then call the drug dog.

[00:51:35] Speaker 02:
So at least in his own mind,

[00:51:37] Speaker 02:
And in the DEA agents' own mind, they didn't have enough at that point.

[00:51:42] Speaker 04:
Well, they might have worried about how a subsequent reviewing court would look at what they did and get as many alternative bases as they could to prevent the drugs from being suppressed.

[00:51:53] Speaker 02:
And well, they should have been worried, because I don't think that what they did was... I cited in my reply brief the Charles Williams case in the Fourth Circuit.

[00:52:04] Speaker 02:
That's about as close to the case as you can get to this one.

[00:52:09] Speaker 02:
The troopers had very, they had, in that case, they had legitimate grounds for a traffic stop.

[00:52:18] Speaker 02:
And then the officer again did what the Supreme Court said they shouldn't do.

[00:52:22] Speaker 02:
He tried to develop that.

[00:52:24] Speaker 02:
He used the stop, the lawful stop, to investigate road trafficking, which the Supreme Court says you can't do.

[00:52:32] Speaker 02:
So just the fact that they made up some reason as to why they didn't... I think the prosecution says here, well, you can do that if you also have reasonable suspicion on the drugs.

[00:52:42] Speaker 06:
That distinguishes it from Rodriguez?

[00:52:45] Speaker 02:
If you have reasonable, articulable suspicion, but given what they had,

[00:52:51] Speaker 02:
They, as I say, there's a whole lot of innocent travelers who could be pulled over on the road based on this kind of very, very thing.

[00:53:04] Speaker 02:
And if they did that, if that was the case, if they had reasonable articulable suspicion to at least detain them pending the arrival of the drug dog, they would have called the drug dog right away.

[00:53:20] Speaker 02:
They would have, once they pulled over, he should have called the drug dog because in his mind he had reasonable, if in his mind he had reasonable articulate with suspicion, he can call for the dog and hold him there until the dog gets there.

[00:53:34] Speaker 02:
So at least the officer didn't think he had anything there.

[00:53:39] Speaker 02:
And I don't think the DEA agents thought that he had anything there.

[00:53:43] Speaker 02:
And I think that's because they didn't have anything there.

[00:53:46] Speaker 04:
Okay.

[00:53:46] Speaker 04:
Why don't you turn?

[00:53:47] Speaker 04:
Are you staying up?

[00:53:48] Speaker 04:
I don't know if you have to go back and retrieve things for the destruction of evidence issue.

[00:54:03] Speaker 02:
On this issue, Your Honors, the government did a very good job of explaining what happened to the drugs that were seized on this traffic stop.

[00:54:15] Speaker 02:
What they didn't do so well were explaining what steps were in place to make sure it didn't happen.

[00:54:21] Speaker 02:
As the proponent of the evidence, the government has the burden of showing its invisibility.

[00:54:28] Speaker 02:
The government can't shift that burden to the defendant because they lost the evidence.

[00:54:34] Speaker 02:
Part of that showing, part of the showing of immiscibility that the government should have to do when the evidence doesn't exist and they're trying to rely on secondary evidence, is that there are policies and procedures in place to make sure it doesn't happen so that they've shown their good faith.

[00:54:52] Speaker 01:
Can I ask this question?

[00:54:53] Speaker 01:
If we, just bear with me on this as an argument, if arguing that we think that bad faith is required,

[00:55:03] Speaker 01:
Do you have an argument as to bad faith?

[00:55:07] Speaker 01:
Or is your argument that there's not a predicate requirement for bad faith, and maybe that's... In this circumstance, there's not a predicate requirement of bad faith.

[00:55:16] Speaker 02:
And what distinguishes this case from McKee and some of the other cases is, truly in McKee, there was, I mean, apparently the drugs were lost somewhere in transit.

[00:55:29] Speaker 02:
Yeah, it was inadvertent.

[00:55:30] Speaker 02:
It was truly inadvertent.

[00:55:31] Speaker 02:
Here, the drugs were intentionally destroyed.

[00:55:35] Speaker 02:
And mistakenly, that's to be sure, but they were mistakenly destroyed.

[00:55:39] Speaker 02:
And the difference is that in this case, having policies and procedures in place would have prevented it from happening.

[00:55:48] Speaker 02:
That's why I think the government has to show good faith.

[00:55:51] Speaker 06:
Is there any case in which the government failed to show that it had policies and procedures in place and on that basis the sanction was that there was some defect in the conviction on that ground?

[00:56:07] Speaker 06:
I mean, it seems like this Henriquez case in the Second Circuit is the closest, and that even there, they admonished they should have policies.

[00:56:15] Speaker 06:
But I'm not sure what flows from your theory, even if we accept it.

[00:56:20] Speaker 02:
Well, first of all, since Henriquez, the government is on notice that they should have policies and procedures in place to make sure this kind of thing doesn't happen.

[00:56:31] Speaker 02:
I mean, the government said it was a mistake, but that's the beginning of the inquiry, not the end of it.

[00:56:37] Speaker 02:
The important inquiry is what was the mistake and what was done to make sure it should not have happened.

[00:56:48] Speaker 02:
That is, I think, what distinguishes this case from the cases cited by the government.

[00:56:58] Speaker 02:
The state of the evidence in this case is that there's neither good faith nor bad faith.

[00:57:04] Speaker 02:
There is just faith.

[00:57:05] Speaker 02:
Faith that maybe we won't need these drugs anymore.

[00:57:09] Speaker 02:
OK, so let's get rid of them and hope we don't need them anymore.

[00:57:12] Speaker 02:
But that's not enough.

[00:57:14] Speaker 02:
If the government wants to introduce secondary evidence, having lost the evidence themselves, then they have to have something in place to

[00:57:26] Speaker 02:
satisfied their burden under Room 101 for the invisibility of the evidence.

[00:57:32] Speaker 02:
And they didn't do that in this case.

[00:57:34] Speaker 02:
They just showed that the Maryland State Police certainly followed their procedures in destruction of evidence.

[00:57:47] Speaker 02:
But that kind of begs the question.

[00:57:49] Speaker 02:
The question is, why was the Maryland State Police allowed to do that?

[00:57:53] Speaker 02:
And it was because the federal government didn't do anything to assure the preservation of evidence in a federal prosecution.

[00:58:06] Speaker 06:
And that, I think... But doesn't McKee explain how the 901 factors are met or not?

[00:58:13] Speaker 06:
Well, McKee... I mean, I know that's a case point to...

[00:58:18] Speaker 06:
that faith or not, but.

[00:58:21] Speaker 02:
McKee kind of brushes over.

[00:58:23] Speaker 02:
The court, it says in the last footnote there, it says they're kind of troubled by the, I mean, you don't use the word cavalier attitude, but they say something about they're troubled by the cursory approach that the government has taken to this and so forth and so on.

[00:58:37] Speaker 02:
And of course, that happened in the middle of trial.

[00:58:40] Speaker 02:
Here we're having what is essentially the government's burden and the government's motion to introduce this evidence.

[00:58:46] Speaker 02:
So we have plenty of time for development of the record.

[00:58:49] Speaker 02:
And it's a record that is solely in the possession of the government.

[00:58:54] Speaker 02:
So the government should have to produce it.

[00:58:56] Speaker 02:
And it was not done in this case.

[00:58:58] Speaker 02:
And it was important evidence because for two reasons.

[00:59:02] Speaker 02:
Number one, it was the only drug evidence that was introduced against these appellants in a drug case.

[00:59:10] Speaker 02:
That's number one.

[00:59:11] Speaker 02:
And number two,

[00:59:13] Speaker 02:
Judge Pallotta, you look like you're going to ask the question.

[00:59:16] Speaker 06:
No, I was just going to say that in terms of 901 and authentication, what I'm thinking about and the key is that they talk about, the court talks about the drugs having been available for testing before trial.

[00:59:27] Speaker 06:
The government had established a chain of custody so that we knew the drugs that were tested were the drugs that were found in the defense position.

[00:59:35] Speaker 06:
chemist was available for cross-examination, so when you're looking at 901, you're talking about authentication, it just seems like that, you know, it's not like these were lost before they were tested and examined and there was an opportunity for the defendants to cross-examine the chemist.

[00:59:54] Speaker 02:
Well, I mean, cross-examining the chemist, I mean, unless you have your own chemist,

[00:59:59] Speaker 02:
to facilitate that is difficult.

[01:00:02] Speaker 02:
Unless you're a chemist yourself, that's going to be difficult.

[01:00:05] Speaker 02:
Here, the drugs were destroyed much earlier in the proceedings, when further testing could have been done, when other things could have been developed.

[01:00:17] Speaker 02:
I mean, the key was in the middle of trial, and it's like, you've got the chemist, you've got the analysis, we just don't have the drugs, what do we do about it?

[01:00:24] Speaker 02:
I think the government certainly has the opportunity to present the evidence in this case.

[01:00:30] Speaker 02:
The second thing that I want to bring about about the importance of the evidence, it's not just the character of the drugs that is heroin, but it's also the purity.

[01:00:42] Speaker 02:
Because if you've got a small amount of heroin, if it's a high concentration, it suggests that that small amount of heroin could be diluted and broken down for further sale.

[01:00:54] Speaker 02:
And if you have a small amount of heroin, if it's already been diluted, if it's a low purity, then that is more probative of personal use.

[01:01:04] Speaker 02:
Because you can't cut it down any more, otherwise it loses its narcotic effect.

[01:01:09] Speaker 02:
So I think for these reasons, unless the court has any further questions, I think I'd like to reserve.

[01:01:15] Speaker 02:
OK.

[01:01:15] Speaker 04:
We'll give you a minute for rebuttal on this issue.

[01:01:17] Speaker 04:
Thank you.

[01:01:20] Speaker 04:
We'll hear from the government.

[01:01:29] Speaker 05:
Courts routinely admit secondary evidence, even when the primary evidence has been destroyed.

[01:01:34] Speaker 05:
In California versus Trumbetta, the Supreme Court allowed breathalyzer results to be admitted, even though the breath samples themselves have been destroyed, saying that, quote, California's policy of not preserving breath samples is without constitutional defect.

[01:01:48] Speaker 05:
Whatever the duty the Constitution imposes on the states to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect's defense.

[01:01:58] Speaker 05:
And of course, the evidence here would not have been expected to play a significant role in the suspect's defense because, as the district court noted, it strains imagination to appreciate or understand how the heroin could be exculpatory.

[01:02:11] Speaker 05:
As to the Defendants 901, Rule 901 argument, which was raised for the first time in their reply brief,

[01:02:18] Speaker 05:
As to the chain of custody, in fact the chain of custody was admitted at trial, that was exhibit 601, which I apologize, it's not in the appendix, along with the lab results and the technician, and that lab technician was in fact available for cross-examination.

[01:02:34] Speaker 05:
Moreover, in addition to the tests of the heroin,

[01:02:39] Speaker 05:
There was also available for the defendants the second package of heroin that was subsequently found in the shoes that had been retrieved from the car.

[01:02:47] Speaker 05:
So as to opposing counsel's argument about the purity of the heroin, there was some amount of heroin available for them to test had they wished to do so, just not the large 61 gram block that was discovered.

[01:03:01] Speaker 05:
But as the court points out, this court and the Supreme Court has required that when sanctioning the government for loss of evidence, you have to show both that the evidence was exculpatory and also that there was bad faith on the part of the government.

[01:03:17] Speaker 05:
And the defendants do not attempt to show bad faith here, as there wasn't.

[01:03:20] Speaker 05:
The district court properly found that the destruction was inadvertent.

[01:03:25] Speaker 05:
No further questions?

[01:03:26] Speaker 04:
Thank you.

[01:03:27] Speaker 04:
A minute for a bottle.

[01:03:34] Speaker 02:
Just briefly, Your Honor, Trombetta is distinguishable because these defendants, the defendants in Trombetta, rather, were not charged with conspiracy to possess a breathalyzer.

[01:03:44] Speaker 02:
They were charged with conspiracy to possess heroin, and it was the heroin that was lost.

[01:03:49] Speaker 02:
The breathalyzer in Trombetta was evidence of the offense, but it wasn't the substance of the offense itself.

[01:03:57] Speaker 02:
Secondly, on my Rule 901 argument, that was raised in response to the government's brief, and I submit it was proper reply, that the government said it was the defendant's burden to show bad faith.

[01:04:14] Speaker 02:
I submit it is the government's burden under Rule 901, as the proponent of the evidence, as it is with every proponent of the evidence, to

[01:04:24] Speaker 02:
present whatever facts are necessary to get that evidence in.

[01:04:28] Speaker 02:
And when they seek to put in secondary evidence, having destroyed the primary evidence, they have to show some kind of good faith procedures that are in place to make sure that that doesn't happen.

[01:04:40] Speaker 02:
Is that there?

[01:04:40] Speaker 02:
Thank you.

[01:04:40] Speaker 02:
Those are the questions.

[01:04:43] Speaker 04:
We'll turn to the first sentencing issue, Mr. Katzoff.

[01:04:48] Speaker 00:
Thank you.

[01:04:50] Speaker 00:
The first sentencing issue, which I've raised on behalf of Jesse Young, and I'm reasonably certain both appellants Burnett and Faxon Young joined in, involves the district court's determination of relevant drug quantities.

[01:05:08] Speaker 00:
From review of the record, Mr. Young argues that the court improperly double counted 130 grams in calculating its drug quantity and offense level.

[01:05:29] Speaker 00:
The court ended up coming up with a calculation of 995.7 grams.

[01:05:36] Speaker 00:
that included two 130-gram transactions or trips to New York.

[01:05:42] Speaker 00:
And I have argued and pointed to the parts of the record that I submit support the indication that that is a reference to one specific trip.

[01:05:59] Speaker 00:
I believe it was referred to a second trip on one occasion and a third trip.

[01:06:04] Speaker 00:
And there was some confusion because Mr. McDuffie said no drugs were recovered were obtained on the first trip.

[01:06:11] Speaker 00:
And then he had a 50 gram for the second trip and 130 grams for the third trip.

[01:06:17] Speaker 00:
And then later on, I believe he referred to 130 grams as the second trip, submit logically, meaning the second trip where drugs were obtained.

[01:06:27] Speaker 00:
There's no place in the record that I saw anywhere else where there is a service.

[01:06:33] Speaker 01:
So if you get the benefit of that 130, that still keeps everyone in the bandwidth.

[01:06:41] Speaker 00:
We don't get enough.

[01:06:44] Speaker 00:
But I also argued that there is another problematic calculation that the district court made that is clearly erroneous, and that is the court

[01:06:57] Speaker 00:
found that there was a 400 gram quantity in either November or December that couldn't be determined that what was obtained on one of those trips where Mr. McDuffie didn't testify about any specific quantities being obtained in those trips.

[01:07:15] Speaker 04:
But he referred to 400 on one of them.

[01:07:18] Speaker 00:
He referred to 400 one time.

[01:07:22] Speaker 00:
He referred to it in the context of being asked what's the most, basically being asked for an estimate.

[01:07:30] Speaker 00:
And he said 200.

[01:07:33] Speaker 00:
And then after a follow-up question was objected to, the court asked a follow-up question in which he said,

[01:07:43] Speaker 00:
The singular word, I believe, 400.

[01:07:46] Speaker 00:
And then he was asked probably four or five times after that.

[01:07:51] Speaker 00:
And every time he either recanted, said he wasn't sure, said he couldn't say, said that those are, that's a number that he just... There is a hook.

[01:08:03] Speaker 04:
I guess my problem here for you

[01:08:06] Speaker 04:
is the preponderance standard that the district court applies combined with the clearly erroneous standard that we have to apply as a problem.

[01:08:13] Speaker 04:
Because there is a hook, right?

[01:08:15] Speaker 04:
It's not like it came out of thin air.

[01:08:17] Speaker 00:
There's a hook in the testimony.

[01:08:18] Speaker 00:
There is absolutely a hook.

[01:08:20] Speaker 00:
There is a reason that you could go to the transcript.

[01:08:23] Speaker 00:
But I would submit that when you look at the totality of the testimony of McDuffie, it doesn't rise to the level of preponderance of the evidence.

[01:08:32] Speaker 00:
And it is clearly erroneous.

[01:08:36] Speaker 00:
The totality of his testimony is, he wasn't a heroin dealer, really.

[01:08:40] Speaker 00:
He was a marijuana cocaine dealer.

[01:08:43] Speaker 00:
That between September 2011 and January of 2012, he sold to his only customer.

[01:08:53] Speaker 00:
His only customer, other than some drugs that he claims he left at Jerry Burnett's

[01:08:59] Speaker 00:
I believe, was the confidential informant, his only heroin customer.

[01:09:05] Speaker 00:
Between September and January, he sold approximately 75 to 80 grams total during that time.

[01:09:17] Speaker 00:
And so when you look at the number of times he said, I'm not really sure.

[01:09:21] Speaker 00:
I don't really know.

[01:09:24] Speaker 00:
I can't really say that.

[01:09:25] Speaker 00:
This just doesn't seem right.

[01:09:27] Speaker 04:
What about the idea that the district court here made a conservative estimate on a lot of these things?

[01:09:34] Speaker 04:
Excluded Detroit, went to the low end of certain other transactions.

[01:09:39] Speaker 04:
And this is rough justice, which is why the Supreme Court had a problem at one point with this system.

[01:09:44] Speaker 04:
But that's the way it works.

[01:09:46] Speaker 00:
Well, I would submit that Detroit, for example, just never rose to the level, and the court found that it didn't rise to the level.

[01:09:55] Speaker 04:
But the district court's carefully going through it in the sense that the government's pushing for the 3K.

[01:10:02] Speaker 04:
You're pushing, I think, for 174, if I'm right.

[01:10:06] Speaker 00:
um, or that's always 100 to 400.

[01:10:09] Speaker 04:
I think we adopted what the pre sentence and the district court goes through the transactions and gives a low end on on song.

[01:10:17] Speaker 00:
I can't criticize the court's effort to look at the record to make those findings.

[01:10:25] Speaker 00:
And I can't say there wasn't that little hook.

[01:10:28] Speaker 00:
But I strongly contend and submit to the court that that 400

[01:10:36] Speaker 00:
was a fiction in the totality of the testimony, not supported by preponderance, not supported by clearly erroneous.

[01:10:43] Speaker 00:
And it's really hard to tell exactly whether the judge undertook rough justice in that fashion.

[01:10:52] Speaker 00:
But what we have for a record, I submit supports a finding that it was not preponderance evidence and it was clearly erroneous.

[01:11:00] Speaker 04:
Okay, we'll give you a minute for a bottle and we'll hear from the government now.

[01:11:08] Speaker 05:
The district court did not clearly err in finding that there were at least 700 grams involved in the conspiracy.

[01:11:14] Speaker 05:
Of course, that's the amount that we need in order to get into the correct guidelines calculation.

[01:11:19] Speaker 05:
Even leaving aside the 130-gram trip in July, and of course there was record evidence to support that.

[01:11:25] Speaker 05:
The judge referred to pages 849 and 850 of the record.

[01:11:30] Speaker 05:
The defense also has to establish that the 400-gram... Do you think that was correct, though?

[01:11:36] Speaker 04:
Do you sitting there now, standing there now, think that's correct?

[01:11:39] Speaker 04:
Or do you think there was a double-counting issue there?

[01:11:43] Speaker 05:
I think there's evidence to support it, but I think it is one of defendant's stronger arguments that it may have been double-counted.

[01:11:49] Speaker 05:
But of course, it doesn't matter, because as Your Honor pointed out, the judge was very conservative in her estimate.

[01:11:55] Speaker 05:
And even if you entirely discount the 130 gram trip in July, you could just knock that trip down to 50 grams, which was, as McDuffie testified, the least amount they ever obtained on a trip.

[01:12:07] Speaker 05:
And he did testify there was a trip in July and there were rental car records for July.

[01:12:11] Speaker 05:
So you could knock that 130 down to 50.

[01:12:14] Speaker 05:
But even if you completely knock out the 130 gram,

[01:12:17] Speaker 05:
In order to get down below 700 grams, defendants have to show that no 400 gram trip ever took place.

[01:12:24] Speaker 05:
And it was not once but twice that Mr. McDuffie testified that he obtained 400 grams.

[01:12:30] Speaker 05:
He testified on page 851 of the joint appendix.

[01:12:33] Speaker 05:
He was having some difficulty answering questions, and the judge asked him point blank, what is the most you ever received?

[01:12:40] Speaker 05:
And he said clearly, 400.

[01:12:41] Speaker 05:
He reiterated that testimony on page 882 when he said he got 400 one time, 250 another time, and otherwise less.

[01:12:51] Speaker 05:
Now then on page 945, he does step back a little bit from that 400 gram testimony and he says, well, maybe it was 250.

[01:13:00] Speaker 05:
But even if you knock that 400 grams down to 250 and completely ignore the 130 gram trip in July, it's still over 700 grams.

[01:13:10] Speaker 05:
And therefore the district court did not clearly air.

[01:13:14] Speaker 05:
If no further questions.

[01:13:15] Speaker 04:
Okay, thank you.

[01:13:18] Speaker 04:
Any rebuttal on that?

[01:13:19] Speaker 00:
Your Honor, I think the court understands the issues and I think they're all presented in the briefs.

[01:13:25] Speaker 04:
Okay.

[01:13:25] Speaker 04:
Thank you.

[01:13:25] Speaker 04:
We'll hear argument now from Ms.

[01:13:27] Speaker 04:
Davis on the second sentencing issue.

[01:13:32] Speaker 03:
Good morning, Your Honors.

[01:13:34] Speaker 03:
The issue I will be addressing is whether Mr. Burnett is entitled to re-sentencing, because at the time he was sentenced, the court included transactions that took place prior to when he joined the conspiracy.

[01:13:47] Speaker 03:
I think the guidelines are very clear, according to 1B1.3, that relevant conduct is not to be included for amounts or conduct prior to when one joins the conspiracy.

[01:13:58] Speaker 03:
Now the government agrees that if you take the amount that the district court judge determined, which was 995.7, and take away the amounts that took place prior to him joining the conspiracy,

[01:14:10] Speaker 03:
the correct amount would be 685 grams, which gets us below the 700-gram cutoff.

[01:14:16] Speaker 03:
But then the government turns around and says, well, we can include other amounts.

[01:14:20] Speaker 03:
And they include 35 grams that was found in his residence at the time of the search.

[01:14:26] Speaker 03:
But there's no evidence that those 35 grams were different from the other amounts that were already included by the district court.

[01:14:33] Speaker 04:
Your theory is that those came from one of the transactions.

[01:14:37] Speaker 03:
Exactly.

[01:14:37] Speaker 03:
There's no testimony, there's nothing in the record that there were any other transactions that know that Burnett got drugs from anyone else other than the people in this conspiracy.

[01:14:48] Speaker 03:
So it would be improper to count the 35 grams because that would be double counting.

[01:14:53] Speaker 03:
The government also argues, and I think Judge Kavanaugh brought this up, that the court is being conservative.

[01:15:00] Speaker 03:
But I think the court had to be conservative based on the testimony in this case.

[01:15:05] Speaker 03:
Mr. McDuffie testified, I think this is a joint appendix 1034 to 35, when asked how many drugs, how much was involved in the conspiracy, he said not three, not two, maybe one, maybe a bit more, maybe a bit less.

[01:15:20] Speaker 03:
And that's for the entire conspiracy.

[01:15:23] Speaker 03:
So if you take away, if you start counting when

[01:15:26] Speaker 03:
Burnett joined the conspiracy, but then you're way below the one kilogram.

[01:15:32] Speaker 03:
The government also argues that, well, he got the 151-month sentence, and so therefore you can't really show that there was any prejudice to Mr. Burnett.

[01:15:43] Speaker 03:
But in this case, the government asked for and the judge sentenced Mr. Burnett to the low end of the guidelines.

[01:15:50] Speaker 03:
And I think that's fair that the judge would do that, because his involvement was much less than anyone else.

[01:15:58] Speaker 03:
He was not a supplier, as the other defendants were.

[01:16:02] Speaker 03:
So therefore, I think he'd be entitled to the lower sentence in order to avoid any sort of disparity between... The recent Supreme Court case helps you on that, too.

[01:16:10] Speaker 03:
Yes, I believe so.

[01:16:11] Speaker 03:
So I think, you know, based on the record as it is, that there's no way that the...

[01:16:19] Speaker 06:
I was just going to say, under Childress, there's a requirement that the district judge make specific individualized findings about the scope of each appellant's conspiratorial agreement and the evidence that led it to concluding each of their cases that the appropriate amount of drugs was involved.

[01:16:35] Speaker 06:
So there's kind of a process error here as well, because the other drugs that the government points to were not added up by the district judge in that way under Childress.

[01:16:48] Speaker 03:
I think the district judge did the best she could based on the testimony.

[01:16:52] Speaker 03:
And I think that this court has to, not even going into the prior argument, I think that the district court has to, I mean, this court has to take the facts as found by the district court.

[01:17:05] Speaker 03:
And the government is asking this court to kind of re-look at everything and redo the calculations based on the records, but there's nothing in the record to support their recalculation.

[01:17:20] Speaker 03:
That's good.

[01:17:22] Speaker 06:
So the relief that you want on that is?

[01:17:25] Speaker 06:
Excuse me?

[01:17:26] Speaker 06:
The relief that you're requesting.

[01:17:27] Speaker 03:
We would want to be resentenced and have the correct guideline level be applied.

[01:17:36] Speaker 04:
We also argued that- Well, on resentencing, they could look at the 34, too, right?

[01:17:42] Speaker 04:
Excuse me?

[01:17:42] Speaker 04:
The district judge could look at the 34 grams as well, no?

[01:17:47] Speaker 03:
the district court judge could consider it, but I think we have the same argument.

[01:17:51] Speaker 04:
You make a good argument for here.

[01:17:52] Speaker 04:
I'm just saying.

[01:17:53] Speaker 03:
Yeah, I think.

[01:17:54] Speaker 03:
Yeah, and I think we would make the same argument below.

[01:17:56] Speaker 03:
Yeah, right.

[01:17:58] Speaker 03:
And then we also have the argument concerning the Philadelphia trip that the 61 grams should not be counted because it was not part of this conspiracy that Mr Burnett was involved in, and he had no knowledge of it.

[01:18:10] Speaker 03:
So I think we'd also get rid of the 61 grams.

[01:18:13] Speaker 04:
Okay, thank you.

[01:18:14] Speaker 04:
We'll give you a minute for a bottle.

[01:18:22] Speaker 05:
Thank you.

[01:18:24] Speaker 05:
The court need not address the 34 grams found in Mr. Burnett's house in order to find... Let me just stop you there.

[01:18:31] Speaker 04:
Does that mean you agree with what I say about that would be double counting, or at least we can't be sure on this appellate record that that 34, right, didn't come from the same

[01:18:44] Speaker 04:
pattern of activities that we're talking about in the conspiracy?

[01:18:47] Speaker 05:
There is evidence of the record that the drugs from the two January trips, which were the most recent trips, were not those 34 grams.

[01:18:56] Speaker 04:
But that doesn't answer the question, right?

[01:18:58] Speaker 04:
Which is, from all the trips, the 34 in the house could be 34 from one of the trips, correct?

[01:19:06] Speaker 05:
It's certainly possible.

[01:19:07] Speaker 04:
But we also argue that there are a number of other ways that you can get... But just on the 34, then, do you agree that

[01:19:14] Speaker 04:
Because I saw your argument in the brief and I took it seriously, but I don't see how we can do that.

[01:19:21] Speaker 04:
To be honest with you, I just looked at it and said, I don't see how we can possibly add the 34 here.

[01:19:28] Speaker 05:
Well, the court didn't explain why she didn't include the 434.

[01:19:32] Speaker 05:
She just said she wasn't going to include the 34.

[01:19:35] Speaker 05:
And certainly, I acknowledge that that is the least likely to be included.

[01:19:39] Speaker 05:
I think much more likely to be included.

[01:19:41] Speaker 04:
I won't force a full concession.

[01:19:43] Speaker 05:
OK.

[01:19:44] Speaker 04:
Oh, yeah.

[01:19:45] Speaker 04:
That's good.

[01:19:46] Speaker 04:
Okay, next one.

[01:19:48] Speaker 05:
The September and October trips, there was ample evidence in the record that Mr. Burnett was actually specifically involved in heroin from those trips.

[01:19:58] Speaker 05:
The September trip, there is evidence in the record that Mr. McDuffie picked the drugs up from Mr. Burnett that he then sold to the CI.

[01:20:08] Speaker 01:
But the district judge didn't base any of the calculations on those drug quantities, right?

[01:20:13] Speaker 05:
No, she didn't.

[01:20:14] Speaker 05:
She relied primarily on Mr. McDuffie's testimony and what he testified as to the trips that he was involved in.

[01:20:19] Speaker 05:
The September trip, Mr. McDuffie did not himself take.

[01:20:24] Speaker 05:
He testified that Thaxton provided him with drugs in September.

[01:20:29] Speaker 05:
But there is record evidence that a September trip did take place because there's text messages and rental car records.

[01:20:35] Speaker 04:
But we don't know how the district court would have relied on that or not.

[01:20:38] Speaker 04:
I mean, this system's already pretty loosey-goosey for a system on which so much depends for how much someone's gonna spend in prison.

[01:20:47] Speaker 04:
If we start doing fact-finding like this here,

[01:20:50] Speaker 04:
It seems even more of a problem.

[01:20:52] Speaker 05:
Well, under the plain error standard of review, the court has to find.

[01:20:55] Speaker 04:
Well, what about Supreme Court's recent case on that?

[01:20:58] Speaker 04:
Because that seems to really collapse plain error in this context to error.

[01:21:02] Speaker 05:
Molina Martinez discusses what happens if the court finds that there was a guidelines error.

[01:21:06] Speaker 05:
And of course, the question that we're addressing first is whether or not the court erred in applying the over 700 gram guidelines calculation to the defendants.

[01:21:17] Speaker 05:
So Molina Martinez is not directly on point in the sense that you can determine that the district court did not clearly err in applying that guidelines calculation because, in fact, there was record evidence to support more than 700 grams

[01:21:31] Speaker 05:
even if it wasn't precisely the record evidence that the district court relied on.

[01:21:35] Speaker 04:
I thought, well, maybe I'm not understanding Melina Martinez.

[01:21:38] Speaker 04:
When a defendant is sentenced under an incorrect guidelines range, which is the argument here, whether or not the defendant's ultimate sentence falls within the correct range, the error itself can and most often will be sufficient to show a reasonable probability of a different outcome after the error.

[01:21:54] Speaker 05:
That's correct.

[01:21:54] Speaker 05:
And it is possible to distinguish Molina Martinez on two grounds.

[01:21:58] Speaker 05:
First is, we're arguing that the guidelines calculation was not incorrect, because the district court could have and would have gotten to 700 grams.

[01:22:07] Speaker 05:
And then secondly, from- Am I misreading children's?

[01:22:10] Speaker 06:
I thought our circuit requires a district judge to make individual findings with respect to each defendant and a conspiracy to which drugs are attributable, so we can't sort of

[01:22:20] Speaker 06:
As you're pointing out, kind of do the attribution ourselves.

[01:22:24] Speaker 05:
Well, we're under plain error standard review at this point.

[01:22:27] Speaker 05:
So the court has to determine that the error affected the defendant's substantial right.

[01:22:32] Speaker 05:
So that would have been a different result.

[01:22:34] Speaker 04:
Why is it plain error when they were arguing?

[01:22:36] Speaker 04:
They go in advocating a specific amount.

[01:22:40] Speaker 04:
The government comes in advocating a much higher amount.

[01:22:44] Speaker 04:
District court kind of

[01:22:46] Speaker 04:
finds its way to the middle.

[01:22:48] Speaker 04:
Because they've put in specific arguments as to what they think should be attributed to them, and isn't that sufficient to preserve their argument?

[01:22:56] Speaker 05:
not where they have failed to address the factual findings that the district court made.

[01:23:01] Speaker 05:
The district court made a series of factual findings, so I should back up.

[01:23:06] Speaker 04:
It wasn't a lot of opportunity.

[01:23:07] Speaker 04:
I read the transcript.

[01:23:08] Speaker 04:
I guess you can always pipe in, but they put out their arguments.

[01:23:14] Speaker 04:
The government puts out its arguments.

[01:23:18] Speaker 04:
I agree.

[01:23:19] Speaker 04:
You can always you can always jump up and down.

[01:23:21] Speaker 05:
But well, I'm here.

[01:23:23] Speaker 05:
The district court expressly asked the defendants if they had any objections to factual findings, but they'd already put in their argument.

[01:23:31] Speaker 04:
Of course, we think you're wrong because we think it should be 1 70

[01:23:38] Speaker 05:
But they didn't address the particular trips that she had found.

[01:23:45] Speaker 05:
As to Mr. Burnett's argument, the argument that you can only consider the amount of time from September or August or September on,

[01:23:55] Speaker 05:
Of course, that argument was not limited to the district court's factual findings, but that is an argument that could have been raised before the district court made her factual findings.

[01:24:04] Speaker 05:
That, Judge, whatever you do, please remember to only count for Mr. Renette what happened in August or September.

[01:24:11] Speaker 05:
And of course, that would have been a very easy objection to raise in district court as she went through and applied the entire volume to Mr. Renette.

[01:24:21] Speaker 04:
I agree with some of what you just said.

[01:24:23] Speaker 04:
Now, I want to make sure I understand your reading of Molina Martinez, though.

[01:24:28] Speaker 04:
Give me that again, your distinction of why.

[01:24:31] Speaker 05:
Molina Martinez presupposes that there is a guidelines error.

[01:24:35] Speaker 05:
And in fact, there was an agreement that there was a guidelines, that the wrong guidelines range was applied.

[01:24:41] Speaker 05:
Our argument here.

[01:24:43] Speaker 04:
What am I missing?

[01:24:44] Speaker 04:
I'm missing something, clearly, because isn't that their argument here?

[01:24:49] Speaker 05:
They're saying that the wrong guidelines range was applied.

[01:24:51] Speaker 05:
We're saying that even if you agree with their, and we do agree that the court should not have included the summer trips, that it was still the right volume of quantity of drugs that was applied and therefore still the right guidelines that was applied.

[01:25:08] Speaker 05:
That even if you didn't include the summer trips, Mr. Burnett should still have- So Molina Martinez does not apply to a calculation error?

[01:25:17] Speaker 05:
Molina Martinez says, let's assume there is a calculation.

[01:25:23] Speaker 05:
Let's assume that the defendants were sentenced applying the wrong guidelines calculation.

[01:25:29] Speaker 05:
And what we're saying is that this isn't necessarily the wrong guidelines calculation, because on alternate facts for which there is support in the record, you can still get to the same guidelines calculation.

[01:25:42] Speaker 05:
Also, while Molina Martinez did say in most cases, a guidelines error will result in a reversal because it's clear that the sentence would have been something different.

[01:25:53] Speaker 05:
It's not true in all cases, and the court is allowed to look at the record as a whole to determine whether or not substantial rights were affected.

[01:25:59] Speaker 04:
I mean, they specifically give examples of what they're talking about there.

[01:26:03] Speaker 04:
And the examples are not this case where the district court says, well, I would have

[01:26:07] Speaker 04:
Which some of the district judges do, as you well know, say, even if I'm wrong about the guidelines calculation, it's going to be 126 months or whatever.

[01:26:16] Speaker 04:
That's correct.

[01:26:17] Speaker 04:
And that didn't happen here.

[01:26:18] Speaker 05:
No, that did not happen here.

[01:26:21] Speaker 05:
OK.

[01:26:21] Speaker 05:
We have no further questions.

[01:26:23] Speaker 06:
Thank you.

[01:26:23] Speaker 06:
I'm sorry.

[01:26:25] Speaker 06:
There is this question about amending the sentence and whether the district court had jurisdiction to do that.

[01:26:30] Speaker 06:
And I just would be interested in your thoughts on how we should handle that.

[01:26:35] Speaker 05:
So for I apologize that has actually been are already been fixed this court did Remand mr. That faxed in Young's sentence to the district court so that the district court could fix the jurisdictional defect in its amendment of mr. Young's sentence so he is now sentenced to 120 months, which is the mandatory minimum sentence and

[01:26:58] Speaker 05:
So as I understand, the sentencing arguments are all mooted for Thaxton Young.

[01:27:02] Speaker 06:
And that's not an argument that applies to the other defendants?

[01:27:05] Speaker 05:
It is not, because they did not move in district court for a reduction in their sentence pursuant to Amendment 782.

[01:27:11] Speaker 05:
They would be eligible for that, wouldn't they?

[01:27:14] Speaker 05:
If this court were to remand, the district court could apply the new sentencing guidelines in resentencing.

[01:27:21] Speaker 05:
And I think if Mr. Young had moved for a resentencing and it had been granted, and there are any number of reasons within the district court's discretion to grant it, if it had been granted, his sentence would go down to 120 months, also moving the issues.

[01:27:41] Speaker 05:
Jessie Young.

[01:27:42] Speaker 05:
Jessie Young.

[01:27:43] Speaker 05:
Mr Burnett, however, he had a two level bump for obstruction of justice because he testified and perjured himself during trial.

[01:27:50] Speaker 05:
And so his sentencing guidelines was higher than his co defendants.

[01:27:56] Speaker 05:
If he were to apply for the same amendment and if it were granted again, that's within the court's discretion.

[01:28:02] Speaker 05:
His new sentencing guidelines, assuming no difference in the drug quantities would be 121 to 151 months, so it would not necessarily move his arguments.

[01:28:14] Speaker 04:
All right, thank you.

[01:28:18] Speaker 04:
Any rebuttal?

[01:28:24] Speaker 03:
Not a whole lot unless the court has some questions.

[01:28:28] Speaker 04:
Seeing none, thank all the defense counsel.

[01:28:32] Speaker 04:
You were appointed by the court, and we thank you for your able assistance, both in the briefing and at oral argument.

[01:28:38] Speaker 04:
We appreciate it.

[01:28:39] Speaker 04:
The case is submitted.