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Case number 15-3020 at L, United States of America versus Jonas Ishitu, also known as Jonas Zipside, appellant.

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Ms.

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Hernandez for the appellant, Mr. Smith for the appellee.

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Ms.

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Hernandez, good morning.

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May it please the court, Carmen Hernandez for appellant level at council table with me, or the council for the other two defendants.

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None of us represented the defendants during the trial of the case.

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After trial and after conviction, they agreed to the three defendants' request at new counsel, and the district court granted them.

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Mr. Martin and I were counsel at the sentencing.

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Ms.

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Davis is only appellate counsel.

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Your Honor, essentially in this case,

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We're asking the court to remand for a hearing on ineffective assistance counsel.

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This is one of many cases that are referred to as stash, reversing stash house cases which were brought or which were prosecuted, investigated by the ATF throughout the United States.

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I think there were more than a thousand cases.

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They are being litigated all over the United States and in Chicago in particular they are presenting

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They're presenting arguments that these cases involved outrageous government conduct and selective prosecution of minority defendants because I believe something like more than 90% of the defendants are all

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either African-American or Latinos.

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In my case, Mr. Lobo was a young man in his 20s, had no prior convictions for any crimes of violence or drug offenses.

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He had a minor simple possession misdemeanor offense in Maryland.

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And he also had a domestic violence argument that originally was deferred, but then when this case rose, was brought back up.

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For almost a year, a good friend of his, at the behest of the ATF or other agents, tried to get him to sell drugs.

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The only thing they were able to accomplish were a 14-gram sale of cocaine in July of 2012, and in February of 2013, my client lent his friend $700 because his friend said he needed the money to purchase drugs.

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And at that point, they went and met the agent, one of the undercover officers.

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The friend handed over 16 grams of cocaine and the agent gave my client $700.

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At that meeting, the undercover agent

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tries to get my client to get involved in a stash.

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And he first lures him into it by saying, I have a renovation project in the storefront.

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Are you interested?

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Because my client had been working more than 45 hours a week at a granite place.

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He lived in DC and drove to Owens Mills.

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At sentencing, I introduced all the records of his employment, no, his time sheets, which were not introduced by his trial counsel, and also phone records, which showed that his friend had contacted him 131 times during the two months immediately preceding the final meeting for the alleged conspiracy to commit the Hobbs Act robbery took place.

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We believe that as a matter of law, that's the type of inducement that's necessary to prove an entrapment case.

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To be clear, your position is that with that evidence, a jury would have been legally compelled to find entrapment, or just a jury could have found entrapment?

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Well, I think there are lots of cases, Supreme Court cases, that go back a while, where such evidence would have been sufficient to find as a matter of law that there was entrapment.

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But at a minimum, with the evidence we could have... So you think, had this all been put before a jury, and the jury still came back and said, we don't find entrapment,

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read their minds, they would say he showed up with guns.

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That verdict would have to get reversed as a matter of law.

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That's pretty strong entrapment evidence for that.

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What I'm saying is there's case law.

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There are several Supreme Court cases, including Jacobson.

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and others where the court found, the court found as a matter of what, that it was in fact, but I'm not arguing that here.

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I'm just arguing there was sufficient evidence to, that with that evidence, the district court would have had to give an entrapment instruction.

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So this is an ineffective assistance of counsel argument?

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Yes.

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That's all.

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You're not presented as an independent argument.

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I'm presenting it as I did present it as an independent counsel argument below.

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And here also, I concede that it's a more difficult argument to argue that as a matter of law, it's entrapment.

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Although, as I said, there are this ample Supreme Court.

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There's at least two or three Supreme Court cases.

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And you say those cases are what?

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Jacobson?

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What are the other ones?

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I believe Smith, one involved, I'm sorry, I don't have them on the top of my head, one involved the sale of alcohol during Prohibition, one involved Jacobson, and another one I believe involved the gun.

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There's at least three support cases.

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That's a greater burden that I'd like to take on, but it's a possibility.

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The failure, given the evidence in the case,

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The failure to argue an entrapment defense in this case made no sense.

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And it is a call that has to be returned to the district court for a full-fledged hearing on ineffective systemic house.

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And there are sufficient factual issues that cannot be resolved at this level, unless the court were to find as a matter of law that this was entrapment.

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At a minimum, it has to go back to the district court

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argument in effective system counsel.

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With respect to the 924C claim, we've asked the court to defer until the Supreme Court rules in Lynch versus DiMaia.

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They heard oral argument in January.

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The language that they're considering is identical to the language in 924C.

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So if Demaya loses, would you concede that you lose the 924C argument?

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No.

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So it's not quite so identical.

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Well, there's two issues.

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Assume they don't go off on the civil versus criminal.

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Right, then the argument we have is that a conspiracy to commit a Hobbs Act robbery

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not a Hobbs Act robbery itself, the conspiracy to commit Hobbs Act robbery categorically is not a crime of violence.

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But that would not be the constitutional vagueness argument.

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Correct.

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Right, so only as to your constitutional vagueness argument, if DeMaio loses on the merits of that, not a civil versus criminal ruling on 16B, we can see that this argument

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It's the identical, unless the Supreme Court were to say something like, because DeMaio involved an immigration issue or something, unless they were to distinguish it.

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But the language, unlike the Johnson case, which is similar language, the language that the Supreme Court is considering in De Maio is identical to the language in 924C.

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The language that the Supreme Court is considering is 16B language, and there's no difference.

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It's identical.

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The non-constitutional argument that a conspiracy could not be a crime of violence, I rely on this court's decision in Sheffield.

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In 2016, I believe, where the court found that an attempted robbery was not a crime of violence for purposes of, I believe, a career offender or an armed career criminal case.

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And this court's reasoning was that there's no attempt, an inchoate crime, just like conspiracy, there's neither an element of violence nor by its nature can the offense be determined to be

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of violence, crime of violence.

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We also argued on the ineffectiveness claim that the failure to seek to suppress the audio tapes was ineffective.

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There are multiple

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factual issues that cannot be resolved by this court and then must be returned to the district court for a full-fledged hearing.

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And then this case stands in an interesting position because

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Obviously, the defendants sought new counsel after trial, and the district court, I know district courts are fairly lenient when a conflict arises, but the defendant's position before sentencing was that they had received an effective assistance of counsel, and to the point, at least the court,

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for, it may have been for multiple reasons, but at least the court granted new counsel.

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So I believe there is a, the framework for an ineffective assistive counsel claim was already argued before sentencing.

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This is in a situation where the district court, where these clients are raising these issues for the first time.

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Going back to the entrapment, the fact that the trial counsel did not introduce subpoena or introduce either the

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work records, which are, in a criminal case, when you've got documentary evidence that supports your claim, that supports the defendant's claim, there's absolutely no strategic reason for not investigating, subpoenaing, and introducing that evidence.

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And it was work records and phone records that showed the multiple calls going from the informant to the defendant.

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It just made no sense.

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An extraordinary number of calls that ended just about the time when the conspiratorial agreement took place.

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At sentencing, we also have raised claims.

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This court decided a very similar case and remanded for resentencing.

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When I say a very similar case, the Stash House case, that case was sentenced before Bigley, where this court found that... What's the name of our case that you're referencing right now?

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Bigley.

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Oh, I'm sorry.

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Bigley is... Oh, you say this case was before Bigley.

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Okay.

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I thought you were... Yes.

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As the recent case, Stash House case, where this court remanded for resentencing.

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involved, I think it's U.S.

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versus McKeever.

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And that case was also identical fact pattern, same identical fact pattern with respect to the stash house robbery.

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same agents this court remanded for resentencing to consider at a minimum whether there should have been a downward departure or a variance based on the entrapment.

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That is, when defendants are entrapped, as we believe, even if it's not as a matter of law, a full defense, at a minimum it is a mitigating factor to the extent that it

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reflects that the defendants may not be as culpable or as dangerous as would be a defendant who devised, concocted, and committed the crimes without any government involvement.

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But in this case, the court found that, for purposes of sentence, there was no such entrapment mitigation because

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This is what we found was they showed up at the scene with the guns were offered many opportunities to back out and didn't so I'm not sure what the basis for Sending it back would be how would we disagree with that?

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Well, but that's somebody just record.

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That's not the standard The standard for entrapment is

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By definition, entrapping means you've admitted, you've committed the crime.

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So it's not what you did on the date of the conspiratorial agreement.

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It's what preceded it.

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They were given many opportunities to back out.

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The other case was identical.

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The fact pattern was identical.

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The McKeever case was, fact pattern was identical, same agents.

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I represented the defendant that said the same in that case.

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Trial counsel were the same.

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Government trial counsel were the same.

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Identical fact pattern.

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I mean, it's a script.

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And again, entrapment as the Supreme Court laid out in Jacobson, you look at whether there was inducement by the government and whether there was predisposition.

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If it rises to the level of a complete defense, then that's a defense through a trap.

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But even if it doesn't rise to the level of complete defense, you still have to look at those two pre-crime factors, inducement and predisposition.

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Predisposition, you look at, did he have prior convictions for robberies?

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Did he have gun offenses?

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Did the government know about it when they were

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enticing them.

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Can I ask you one quick question before we run out of time on the suppression of the hoodies and shirts?

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Assume that were error and they should have been suppressed.

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What difference would that have made in this trial, the dogs and everything else?

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I'm sorry, Your Honor, you're talking about?

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Just the hoodies and the shirts that were found in the car.

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Again, it is corroborating evidence as to one

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One, as to the government's theory of the case or as to the defense theory of the case.

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Just like... Do you have any argument that the case would have... I'm sorry.

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...any probability of come out differently without the hoodies being introduced in evidence?

[00:15:13] Speaker 01:
Yes, because it led to the... It supported the government's argument that these guys came in prepared to do this and there was no... Oh, but they already had the guns.

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The guys all there, they're on video.

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There's no video of the guns.

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No, they're on video coming into this warehouse, having this discussion.

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They're all there.

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They're on video not backing out.

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They have the guns for the evidence, for purposes of what's before the jury.

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I'm just trying to figure out if the hoodies matter.

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Well, again, that's why the entire case has to turn on entrapment, because

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This is what this is.

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As I say, this is a script used by these officers.

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There have been acquittals.

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There was an acquittal in the Eastern District of Virginia based on entrapment.

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I continue to say it's a script that they use.

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The same agents use it.

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They make the crime less morally culpable because they tell them that it's someone whom they fronted drugs to and they owe their own money and they also have a person on the inside who's going to help them pull it off.

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So it makes it less dangerous and less morally culpable because we're not just trying to steal money, we're trying to give back our goods.

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My argument to the court is that the whole case is wrapped up around the failure of defense counsel to argue entrapment.

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And that failure, in my opinion, is based on a misconception, which was also adopted by the district court, that entrapment, you look at what happened on the date of the crime.

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No, no, no.

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Entrapment, as the Supreme Court has laid out, has to be viewed in terms of predisposition and inducing by the government before the crime is committed.

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My time is waiting.

[00:17:03] Speaker 04:
All right, we'll give you a couple minutes in reply.

[00:17:04] Speaker 01:
Thank you, Court.

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Mr. Smith?

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May it please the Court, Peter Smith on behalf of the United States.

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I'll address appellants' arguments in the order that she presented them this morning.

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First of all, with respect to the entrapment of vans, appellants' arguments.

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Can you move that thing a little closer?

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There.

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There you go.

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Is that better?

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With respect to the entrapment defense, the argument that appellant is advancing this morning is that counsel was ineffective for failing to present that defense or request a jury instruction.

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And the government's argument is that appellants wouldn't have been entitled to a jury instruction

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entrapment, therefore there was no deficient performance of counsel.

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The defense has the burden of showing inducement and the things that appellant has identified this morning, friendship, the fact that Lovo had a job, the fact that a cooperator contacted Lovo repeatedly, wouldn't be sufficient to overbear

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the will of a person, which is the standard articulated in Glover.

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Just the opposite, Lovo and his co-defendants indicated that they were not reluctant, that they were ready and willing to engage in the conspiracy.

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They brought the guns.

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They brought the tools of the robbery.

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They boasted about their ability to complete the strong arm robbery.

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They rejected repeated opportunities to withdraw.

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So on that basis, there wouldn't have been any predicate for the giving of the jury instruction.

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The ineffective assistance claim, though, has a lot of different components, and usually we would remand to let the district court sort that out in the first instance.

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Isn't that the appropriate course here as well?

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I think not because here you have conclusive, the government demonstrate, could demonstrate conclusively that appellants are not entitled to an instruction as a matter of law and that's a determination.

[00:19:11] Speaker 06:
But it's got the evidentiary, the failure to object to some of the evidentiary, some of the evidence as well as part of the ineffective assistance.

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You're saying the other claims that they're raising

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They have a lot of several different components to the Infective Assistance Claim.

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And as you know, our case law and I have said we shouldn't be dealing with those kinds of fact-laden ineffective assistance claims in the first instance, but should simply remand those almost automatically.

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I think that a remand was not warranted here, and we can go through each one of the different

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arguments that opponents raised that i didn't hear her making some of those other other arguments here i guess my response would be some of these issues are simply legal like entrapment issue that this court can resolve uh... and the other issues are conclusively demonstrated in the record uh... so they wouldn't have been

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and or, and this is all articulated in the government's brief, or this court could conclusively determine that opponents wouldn't have been prejudiced.

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For example, if

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if the argument as counsel was ineffective for failing to, you know, object to the audio and the videotapes, you know, even setting aside our merits arguments on why those weren't admissible anyway, so there was no deficiency.

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If appellant's argument is true, those tapes would be, you know, inaudible.

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They wouldn't be prejudicial.

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I mean, the jury would get this pile of tapes and it would really, you know, that were neither here nor there if they were truly inaudible.

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Well, the problem is that they have an agent

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interpreting, they're not only garbled, they weren't inaudible, they were called in and out, words go in and out.

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They're in a foreign language that the jury didn't speak.

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You have the agents there saying here's what was being said and the jury has no way to check

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the veracity or validity of what the agent's saying.

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There's sort of help with it.

[00:21:12] Speaker 03:
They have no choice but to accept it, because the tapes are such poor quality, and they're in a foreign language, and no transcript is being offered to them.

[00:21:20] Speaker 02:
Well, some of the tapes are audible.

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Some of the tapes or the video is in English.

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And as to the court's point.

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The video.

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Are the tapes in English or the video?

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I'm sorry?

[00:21:29] Speaker 03:
Are the tapes in English or only the video?

[00:21:31] Speaker 02:
Some.

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I think there's some English, there's some sort of... Well, just deal with the Spanish ones, because that's right.

[00:21:39] Speaker 03:
So the jury don't speak Spanish, they aren't going to transcript.

[00:21:41] Speaker 03:
Right.

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What ability do they have to verify or test the veracity of what the agent has said to those conversations?

[00:21:48] Speaker 02:
Well, they had that ability during the trial process.

[00:21:52] Speaker 02:
How?

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Because... They don't speak Spanish, they can't tell if the agent's accurate or not.

[00:21:58] Speaker 02:
Well, Appellant Lovo was able to testify about the meaning of

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the language in the tapes and in the video.

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And defense explored this during cross-examination.

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And the jury was instructed not to reach out and interpret for themselves the Spanish.

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So as I said, that would be sort of a nullity.

[00:22:20] Speaker 02:
They wouldn't have been able to look at that.

[00:22:22] Speaker 02:
So you had the government's witnesses

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describing what was happening on the tapes, and then you had the defense ability to either... Not what was happening, what was being said.

[00:22:33] Speaker 03:
Not just what was happening, what was being said.

[00:22:35] Speaker 02:
And they could have done that even without the tape.

[00:22:40] Speaker 02:
And I guess I would also add that, you know, appellants

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didn't until there were five brief challenge the Spanish language aspect of the tapes and of the video.

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And that I would say.

[00:22:55] Speaker 06:
You don't think they forfeited that?

[00:22:57] Speaker 02:
Well, I mean.

[00:22:59] Speaker 06:
It's a little tough.

[00:23:01] Speaker 02:
Well, I mean, even if the court weren't going to accept that, I mean, the tapes are admissible for other reasons also.

[00:23:06] Speaker 02:
I mean, aside from the Spanish and the fact that there's no prejudice, if nobody understands what's happening, you have

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That, you know, to the extent that somebody can hear the audio and the tenor of the voice, someone can see what's happening on the video.

[00:23:20] Speaker 02:
They're all admissible for those purposes separately.

[00:23:24] Speaker 02:
So, you know, and the court is looking now at ineffective assistance.

[00:23:28] Speaker 02:
It's not looking at, the appellants haven't been arguing about the merits of whether the tapes were admissible, but now they're arguing that the defense should have objected on these bases.

[00:23:37] Speaker 02:
So our argument is that there's no deficiency because the tapes were admissible.

[00:23:42] Speaker 02:
There was no reason to object.

[00:23:45] Speaker 02:
And to the extent that Judge Mullight is concerned about specific instances, the defense did object in those instances.

[00:23:52] Speaker 02:
And there's one cited in our brief where Sordas Council says, hey, I can't hear on that tape what's happening there.

[00:24:01] Speaker 02:
And there's a discussion, and there's a more accurate translation of that.

[00:24:05] Speaker 02:
what's happening at that time.

[00:24:07] Speaker 02:
So that all goes to whether there's an effective assistance.

[00:24:11] Speaker 02:
The defense did address all those things.

[00:24:14] Speaker 02:
And then.

[00:24:14] Speaker 06:
There wasn't an objection to the Spanish language aspect of it, though, correct?

[00:24:19] Speaker 02:
Correct.

[00:24:20] Speaker 02:
The fact that it was in Spanish.

[00:24:21] Speaker 02:
And we've, in our brief.

[00:24:22] Speaker 03:
And no transcript could be provided to the sheriff.

[00:24:25] Speaker 02:
Well, the government tried to prepare a transcript.

[00:24:28] Speaker 02:
No.

[00:24:28] Speaker 06:
But they weren't there.

[00:24:29] Speaker 06:
That's the point.

[00:24:30] Speaker 06:
They weren't prepared.

[00:24:31] Speaker 06:
And it's not your fault, I understand.

[00:24:35] Speaker 06:
The question then is, without the transcripts and some of the tapes being in Spanish, was there ineffective assistance in failing to object to that?

[00:24:45] Speaker 06:
And usually we don't resolve that kind of claim in the first instance here.

[00:24:49] Speaker 02:
Usually not, unless the case is conclusive.

[00:24:51] Speaker 02:
And I think it is here.

[00:24:52] Speaker 02:
And I mean, the deficiency, even if you set aside whether they should have objected to that.

[00:24:58] Speaker 02:
And I would argue that they did periodically make objections, not enough to preserve

[00:25:03] Speaker 02:
to get themselves out from plain error, but they did object at points.

[00:25:08] Speaker 02:
And in any event, I think that the deficiency prong is not satisfied here, and that that is conclusive.

[00:25:15] Speaker 02:
I mean, if the argument is there was some Spanish language, there was some stuff that's inaudible, the jury was instructed not to interpret for themselves.

[00:25:25] Speaker 02:
The officers interpreted, they were cross-examined.

[00:25:29] Speaker 02:
Lovo, the defendant, was able to give his interpretation because he testified.

[00:25:35] Speaker 02:
So you don't really have any prejudice in anything else that was admitted because the jury wouldn't have been able to make anything out of that.

[00:25:45] Speaker 02:
So if there are no further questions about the ineffective assistance claim, I would want to,

[00:25:54] Speaker 02:
address briefly some of the other things that Appellants Council raised this morning.

[00:25:58] Speaker 02:
On the 924C claim, I just wanted to make two quick points.

[00:26:04] Speaker 02:
The point that Appellant made this morning that a conspiracy offense can't

[00:26:11] Speaker 02:
to satisfy 924C's residual clause is an argument they made for the first time in their reply, and this court should not consider it.

[00:26:20] Speaker 02:
I also wanted to address the pendency of De Maia and the Supreme Court.

[00:26:25] Speaker 02:
It seems to us that

[00:26:28] Speaker 02:
once demise decided by the Supreme Court this court audio perhaps order the parties to brief the effect of that decision here and I can explain in more detail why we think that on your on your first point do you think they're wrong you say they didn't raise it to the reply brief are they wrong

[00:26:48] Speaker 02:
I think that's an open question.

[00:26:50] Speaker 02:
I'm not sure that the government is taking the position that it would defend conspiracy offenses as satisfying.

[00:27:04] Speaker 02:
now i i do think that uh... uh... uh... i was i was i was i was i was i was i was i was i was i was i was i was i was i was i was i was i was i was i was i was i was i was

[00:27:27] Speaker 02:
So I do think they're wrong about that.

[00:27:29] Speaker 02:
And the government didn't brief it because they didn't raise this.

[00:27:32] Speaker 02:
They didn't make this argument until their reply.

[00:27:35] Speaker 02:
They just assumed in their opening brief that conspiracy offenses did satisfy the residual clause.

[00:27:41] Speaker 02:
And they made the argument that the residual clause was vague and unconstitutionally vague, following Johnson.

[00:27:48] Speaker 02:
So as I suggested, we don't know what the DeMaia decision is going to look like from the Supreme Court.

[00:27:55] Speaker 02:
It may behoove the court to ask the parties for supplemental briefing on that issue.

[00:27:59] Speaker 03:
Are you disputing that the language is identical if, for example, DeMaia prevails on unconstitutional vagueness?

[00:28:08] Speaker 03:
It's like they just extend Johnson to 16B, at least in the criminal law context.

[00:28:18] Speaker 03:
Would there be anything left to argue?

[00:28:20] Speaker 03:
I could certainly ask your opinion at the time.

[00:28:22] Speaker 02:
I mean, again, it would depend on what the Supreme Court's decision looked like.

[00:28:26] Speaker 02:
But even if it made a straight Johnson ruling, it said 16b didn't address the immigration context.

[00:28:33] Speaker 02:
And I'm talking about the Supreme Court.

[00:28:34] Speaker 02:
It didn't address the immigration context.

[00:28:36] Speaker 02:
It just said 16b is unconstitutionally vague.

[00:28:41] Speaker 02:
We think that 924c is distinguishable still.

[00:28:44] Speaker 02:
It is more concrete because it

[00:28:47] Speaker 02:
It involves firmer predicates.

[00:28:53] Speaker 02:
It's an offense that involves the use of a weapon in the course of using and carrying a weapon.

[00:29:01] Speaker 02:
So the scope of offenses is more limited.

[00:29:05] Speaker 02:
And so the context and the purpose.

[00:29:07] Speaker 03:
It also has to be an offense under federal law, which you don't have in 60 years, so it's a narrow body.

[00:29:12] Speaker 02:
Right, so even though the textual language is virtually identical, it's not literally identical, I think there's a couple of words that are different, but it's virtually identical, but that doesn't resolve the question.

[00:29:22] Speaker 02:
So even if Demiah held that the defense won on vagueness grounds on 16b,

[00:29:30] Speaker 02:
That doesn't say anything necessarily about 924C.

[00:29:34] Speaker 02:
So that's why we would suggest the court ought to have additional briefing.

[00:29:39] Speaker 02:
With respect to the other two claims that appellant raised this morning, the audio tapes,

[00:29:45] Speaker 02:
I suppose that we've addressed that earlier today to the court's satisfaction.

[00:29:50] Speaker 02:
I see Judge Kavanaugh shaking his head.

[00:29:53] Speaker 02:
And the other thing, the sentencing, I just wanted to make two quick points.

[00:29:58] Speaker 02:
Appellant's argument this morning is that this court, I guess she's arguing, should remand for re-sentencing because of bigly error at sentencing.

[00:30:11] Speaker 02:
Council was citing McKeever.

[00:30:14] Speaker 02:
And McKeever and Bigley are different from this case.

[00:30:16] Speaker 02:
That really was a straight Bigley error.

[00:30:20] Speaker 02:
And just to simplify this, the error in that case was that the government brought the guns or the drugs into the operation.

[00:30:33] Speaker 02:
And that's not the situation here.

[00:30:35] Speaker 02:
The government's evidence, and even

[00:30:37] Speaker 02:
Appellant Lobo testified that he brought the guns.

[00:30:39] Speaker 02:
He said to sell them.

[00:30:41] Speaker 02:
But the evidence here is that the government did not provide the guns.

[00:30:46] Speaker 02:
So there was no guideline bump because of the government's conduct and therefore McKeever and Bigley are inapplicable.

[00:30:53] Speaker 02:
This case is just a straightforward case of Locke or

[00:31:00] Speaker 02:
where the court was presented with arguments under section 3553A about appellant's history and characteristics and heard those arguments, applied 3553A

[00:31:16] Speaker 02:
apply those factors and recited all of appellant's mitigation arguments and we go through that in our brief where she does that.

[00:31:24] Speaker 02:
So it's not bigly error, it's the usual case which would be locked where as long as the district court adverts to the relevant sentencing statute and gives some reasons it's done enough.

[00:31:39] Speaker 02:
And there would be no need for resensing in that situation.

[00:31:42] Speaker 03:
Let me ask you a question about the search, the Fourth Amendment suppression motion with respect specifically to the shirt and hoodies.

[00:31:55] Speaker 03:
Do you have a?

[00:31:56] Speaker 03:
First, I have two questions.

[00:31:58] Speaker 03:
One, it looked to me, and I tell you if I'm wrong, that you were no longer arguing plain view to this court.

[00:32:05] Speaker 03:
And secondly, does it matter?

[00:32:09] Speaker 02:
I don't think it matters that we're not arguing plain view here, and I don't think it matters for, you know, the government has a variety of different arguments in our brief, and we can go through those.

[00:32:18] Speaker 02:
We think that opponents lack standing under the Fourth Amendment, but even if you set that aside, you know, the seizure of the hoodies and the masks from the passenger compartment of the car, and these weren't sealed

[00:32:33] Speaker 02:
These weren't taken from sealed locations, they were on the seat.

[00:32:36] Speaker 02:
So that was sustainable either under Gantt or under the automobile exception because you have a whole series of conversations between law enforcement officers and appellants.

[00:32:49] Speaker 02:
where they talk about what they're going to bring to this final meeting in order to conduct the robbery.

[00:32:55] Speaker 02:
And those things included guns, those things included the tools of the robbery, masks, and things like these.

[00:33:01] Speaker 03:
But did he do a search of the, if the theory here was we wanted to make sure there weren't, wasn't anything dangerous in the body of the automobile, did he, did the, is there any evidence the officer did a search of the, I know you didn't go to the trunk toe,

[00:33:14] Speaker 03:
just found you didn't go to the front top of the warrant, but just the main body.

[00:33:19] Speaker 03:
I thought the story was that you got into driving to the impound lot and there they were in plain view, which would be inconsistent with the argument that, hey, we were worried about contraband and stuff being in there, so we need to do a search of the interior of the vehicle.

[00:33:35] Speaker 02:
I don't think those things are inconsistent.

[00:33:37] Speaker 02:
I mean, the officer

[00:33:39] Speaker 02:
didn't search the enclosed areas of the car.

[00:33:44] Speaker 02:
The officer did think that there were weapons in the car, which is why he drove it.

[00:33:49] Speaker 02:
They didn't wait for a tow truck.

[00:33:51] Speaker 02:
They did not take it to the MPD's impound lot.

[00:33:54] Speaker 02:
They took it eventually to the ATF headquarters because they wanted it to be in a location where it was actually guarded.

[00:34:00] Speaker 02:
because they knew that there were weapons in the trunk of the car.

[00:34:04] Speaker 02:
But the course point is, OK, well, they thought there were weapons.

[00:34:07] Speaker 02:
They didn't search for them immediately.

[00:34:09] Speaker 02:
They didn't have to under the automobile section.

[00:34:11] Speaker 02:
They had probable cause because they could have found the tools of the robbery, which was the offense, within the car.

[00:34:23] Speaker 02:
So they had probable cause to search

[00:34:26] Speaker 02:
all areas of the car from the moment of appellant's arrest on.

[00:34:30] Speaker 02:
So the fact that they didn't, that they sort of bifurcated that, that the officer picked up the hoodies and took them initially and then they waited and they actually obtained a warrant for the enclosed spaces of the car.

[00:34:43] Speaker 02:
So the fact that he waited doesn't mean that

[00:34:46] Speaker 02:
there was some sort of Fourth Amendment violation with taking the shirts and the hoodies and whatnot.

[00:34:51] Speaker 02:
And I would disagree.

[00:34:52] Speaker 02:
Appellant's opening brief takes the position that the officer obtained those things under either plain view or perhaps in some sort of inventory manner.

[00:35:02] Speaker 02:
And that's not what happened here.

[00:35:05] Speaker 02:
The officer did seize them as evidence at that time because they were sitting on the seat and he was driving the car.

[00:35:11] Speaker 02:
But he was entitled to do that, again, at least under Gantt and under

[00:35:16] Speaker 02:
the automobile exception, because you had weeks of preparation for this final meeting where appellants have said, we're coming to the robbery prepared.

[00:35:26] Speaker 02:
We're going to have guns.

[00:35:27] Speaker 02:
We're going to have masks.

[00:35:29] Speaker 02:
We've done this before.

[00:35:30] Speaker 02:
We're ready for the robbery.

[00:35:32] Speaker 02:
So that gave the police probable cause to search the car, soup to nuts.

[00:35:36] Speaker 02:
And they did ultimately obtain a warrant.

[00:35:38] Speaker 02:
The search of the enclosed spaces was conducted pursuant to that warrant.

[00:35:43] Speaker 02:
You know, that was the testimony of this question hearing.

[00:35:47] Speaker 02:
So again, I mean, of course, right then, the only thing that wasn't seized according to pursuant to a warrant was the things that were sitting on the seat, the hoodies, and that was permissible under these other rationales.

[00:36:00] Speaker 02:
And even if the court disagreed, as the court suggested earlier, that was the least of the government's evidence in this case.

[00:36:07] Speaker 02:
The government had overwhelming evidence of this conspiracy.

[00:36:10] Speaker 02:
We have opponents on the video.

[00:36:12] Speaker 02:
We have them manipulating pictures of the target of the robbery.

[00:36:16] Speaker 02:
We have them showing up to the final meeting.

[00:36:18] Speaker 02:
We have them bringing guns.

[00:36:20] Speaker 02:
We have them on video, sometimes in English, saying that they're prepared to conduct the robbery.

[00:36:26] Speaker 02:
In the final day, there is conversation in English.

[00:36:29] Speaker 02:
Ashutu is giving orders, and he's speaking at least some of the time in English.

[00:36:34] Speaker 02:
The final day is about a 40-minute videotape, and a good portion of that, they do speak in English.

[00:36:43] Speaker 02:
If there are no further questions, we urge the court to affirm the judgment of the district court.

[00:36:48] Speaker 02:
Thank you very much.

[00:36:48] Speaker 02:
Thank you.

[00:36:50] Speaker 04:
Why don't you take a couple minutes, Ms.

[00:36:52] Speaker 04:
Hernandez.

[00:36:56] Speaker 01:
Just a couple of corrections.

[00:36:58] Speaker 01:
We did, in our opening brief, mention the fact that the tapes were in foreign language.

[00:37:08] Speaker 01:
And that is at page 40 of our opening, page 40 in the red numbers of our brief.

[00:37:20] Speaker 01:
It's in the context.

[00:37:23] Speaker 01:
It says, when the recordings are in English, summary witness testimony is less likely to be infused with embellishment or misstatements because the court, and most importantly, the jurors can discern for themselves.

[00:37:34] Speaker 03:
Page 40 of your below brief?

[00:37:36] Speaker 01:
Of our opening brief.

[00:37:37] Speaker 01:
Page 40, the number's at the top, the number at the bottom.

[00:37:40] Speaker 01:
The page number is 29.

[00:37:41] Speaker 03:
The ledger.

[00:37:46] Speaker 01:
that is imprinted when it's filed on ECF is page 40.

[00:37:51] Speaker 06:
It's page 29, yeah.

[00:37:52] Speaker 01:
Page 29.

[00:37:52] Speaker 01:
I don't know what page the court wants to refer to it.

[00:37:57] Speaker 01:
So there is a reference.

[00:37:58] Speaker 01:
It's part of the argument that was made with respect to the suppression of the tapes.

[00:38:06] Speaker 01:
And what made it so harmful is that it bolstered the testimony of the eight officers.

[00:38:16] Speaker 01:
They're testifying more than a year after, years after the events.

[00:38:21] Speaker 01:
But because of the audio tapes that they're claiming they can hear or they can remember, then that bolsters their testimony.

[00:38:30] Speaker 01:
Otherwise, what you've got is somebody testifying about an event that happened two years earlier.

[00:38:34] Speaker 01:
So we think it was very problematic.

[00:38:38] Speaker 01:
And of course, the reason there are no transcripts is because the

[00:38:43] Speaker 01:
certified translator said we can't transcribe this, we can't translate this because it's not clear enough for us to produce a translation.

[00:38:52] Speaker 01:
With respect to the argument on 924C, whether we made an argument, we made the argument explicitly below and we argued

[00:39:03] Speaker 01:
Again, in our opening brief at page 14, that the predicate offense of conspiracy to commit a Hobbsack robbery does not qualify as a crime and violence as a matter of law.

[00:39:14] Speaker 01:
We didn't amplify it on it, but we certainly made the argument.

[00:39:18] Speaker 01:
We aren't just arguing that it's a vagueness argument.

[00:39:20] Speaker 01:
We made that argument and moved on to the vagueness argument.

[00:39:24] Speaker 01:
So we believe we certainly preserved it and

[00:39:28] Speaker 01:
It's even where it hasn't been preserved, other courts, which we cite in our reply brief, other courts have found that touching error is cognizable in a 2255 case, where it wasn't even raised below, so we believe even if it wasn't properly raised as plain error, the court should consider it.

[00:39:52] Speaker 01:
We also, as far as this,

[00:39:54] Speaker 06:
Where you raised it in the opening brief, though, it said, because it is void for vagueness, at least on page 14.

[00:40:00] Speaker 06:
I mean, you linked the two things.

[00:40:04] Speaker 06:
And as you said, you didn't amplify it.

[00:40:06] Speaker 06:
It's there, though.

[00:40:08] Speaker 06:
I'll give you that.

[00:40:10] Speaker 01:
We didn't amplify it.

[00:40:11] Speaker 01:
There's no question about it.

[00:40:12] Speaker 01:
But we certainly argued it in the post-trial motions that we filed, because at the time, Johnson hadn't been decided yet.

[00:40:21] Speaker 01:
So we made the argument straight on.

[00:40:23] Speaker 01:
And there's no question that an inchoate crime doesn't meet either the nature of the offense nor the element of the offense 924C requirements.

[00:40:35] Speaker 01:
And I think it would be inconsistent with this court's decision in Sheffield.

[00:40:44] Speaker 01:
The court asked, if the court will allow us, I will submit to the court the other Supreme Court cases on entrapment.

[00:40:59] Speaker 01:
I believe that there's at least one case that we filed in our reply brief.

[00:41:06] Speaker 01:
Matthews, I believe, is a Supreme Court case.

[00:41:09] Speaker 01:
And again, the argument that the government is making here and the argument the court considered in considering entrapment, either as a defense or as a mitigating factor, is this notion that they had the opportunity to withdraw at the time of the crime.

[00:41:25] Speaker 01:
Our argument is that the entrapment, as the Supreme Court has viewed it and as the Seventh Circuit en banc has explained, you're looking at what happened before the crime.

[00:41:39] Speaker 01:
Because by definition, entrapment defenses, yes, we committed the crime, but something happened that made us commit the crime, which should excuse it.

[00:41:47] Speaker 01:
And we believe that the government's argument on McKeever and Bigley, they're looking at the case very narrowly.

[00:41:55] Speaker 01:
And again, we think that that's exactly the error that the district court

[00:42:04] Speaker 01:
committed when it reviewed or when it considered the entrapment as a mitigating factor at sentencing.

[00:42:11] Speaker 01:
Again, it's looking at what they did on the day of the event rather than what happened before.

[00:42:18] Speaker 01:
With respect to sentencing.

[00:42:19] Speaker 01:
All right.

[00:42:20] Speaker 04:
You've gone over your time, Ms.

[00:42:21] Speaker 04:
Hernandez.

[00:42:22] Speaker 04:
Thank you.

[00:42:23] Speaker 04:
The court appointed you and Ms.

[00:42:25] Speaker 04:
Davis and Mr. Martin to represent the defendants, and you provided your usual able assistance to the court.

[00:42:31] Speaker 04:
Thank you.

[00:42:32] Speaker 01:
Thank you.

[00:42:33] Speaker 01:
Thank you.