[00:00:05] Speaker 01:
Mr. Wilcox for the appellates, Mr. Smith for the appellate.

[00:00:13] Speaker 03:
Good morning.

[00:00:27] Speaker 01:
Good morning Judge Griffith and may it please the court.

[00:00:29] Speaker 01:
Jason Wilcox of Kirkland and Ellis on behalf of the appellants.

[00:00:32] Speaker 01:
The defendants in these consolidated criminal appeals were all erroneously swept up in a conspiracy investigation that rightly focused primarily on others who were actually major drug dealers in the Washington DC area.

[00:00:44] Speaker 01:
I want to discuss several flaws this morning in the underlying convictions in a moment, but let me address the sentencing issues that cut across both Stoddard's and Woodruff's appeals first.

[00:00:53] Speaker 01:
As the government itself consistently argued below,

[00:00:56] Speaker 01:
The enhanced statutory minimum and maximum sentences for distributing more than 100 grams of heroin are triggered only if that amount is personally attributable to an individual defendant.

[00:01:07] Speaker 02:
And where in the statute does it say that?

[00:01:11] Speaker 01:
Well, I think that, first off, what you need to step back to, Judge Griffith, is the background principles of conspiratorial liability.

[00:01:17] Speaker 01:
And I think that that's what it is.

[00:01:19] Speaker 02:
No, no, no.

[00:01:19] Speaker 02:
Let's start with the language of the statute.

[00:01:21] Speaker 02:
What were they convicted of?

[00:01:22] Speaker 01:
What they were convicted of, if you look at

[00:01:26] Speaker 01:
at the statute is that they were convicted of conspiring to distribute, sorry, the text of section 846 says what they're convicted of is conspiring to commit any defense defined in the sub-chapter.

[00:01:40] Speaker 01:
And then to be guilty of conspiracy, all you need to be guilty of under this court's precedent, such as Gaskin's, is agreeing to distribute some unspecified quantity of drugs.

[00:01:51] Speaker 01:
So all that they were convicted of was distributing an unspecified quantity of drugs.

[00:01:54] Speaker 02:
I thought they were convicted under 1B1 of conspiracy to distribute 100 grams or more of heroin.

[00:02:04] Speaker 01:
So the underlying 846 conviction only doesn't require an individualized binding.

[00:02:09] Speaker 01:
There were then questions that were asked to the jury about whether the conspiracy as a whole involved 100 grams.

[00:02:16] Speaker 02:
Is that the language that was used?

[00:02:17] Speaker 02:
The language of the jury forum was conspiracy as a whole?

[00:02:23] Speaker 01:
The language of the jury forum, which you can see A92 and 93, is that first off they were asked whether there was a conspiracy.

[00:02:33] Speaker 01:
And then they were asked, does the jury unanimously find that a mixture or substance containing the controlled substance heroin was a subject of the conspiracy?

[00:02:43] Speaker 01:
And then the jury was asked, does the jury unanimously find that the amount of the mixture of substance containing heroin was 100 grams or more?

[00:02:51] Speaker 01:
Now, what the court has said in cases like Tabron, however, is that just because an overarching conspiracy involves 100 grams or more, there still needs to be specific individualized findings because an overarching conspiracy agreement can have a dense web of underlying agreements.

[00:03:07] Speaker 01:
And so that's why in guidelines cases, this court doesn't just look to the underlying offensive conviction, but instead makes individualized findings for each individual defendant.

[00:03:18] Speaker 01:
And that's the rule we're asking for here under the statute as well.

[00:03:21] Speaker 03:
Are you, just so we're clear here, are you saying that there has to be a finding of what is reasonably foreseeable

[00:03:31] Speaker 03:
with respect to the conspiracy for each defendant so that the jury has to determine what was reasonably foreseeable for that defendant.

[00:03:43] Speaker 01:
Yes, what the jury needs to find, Your Honor, is they either need to find that the specific conspiratorial agreement was to distribute that amount of drugs, not just to enter into a conspiracy to distribute heroin or some other drug in general, and then if that's not the specific conspiratorial agreement, then they need to find whether it was reasonably foreseeable

[00:04:03] Speaker 01:
in light of what the underlying agreement was, that that quantity of drugs would be distributed by other members of the conspiracy.

[00:04:09] Speaker 02:
So what's wrong with this reading of the verdict form?

[00:04:11] Speaker 02:
And this isn't a rhetorical question.

[00:04:13] Speaker 02:
I really want you to help me with this.

[00:04:14] Speaker 02:
So I read the verdict form.

[00:04:16] Speaker 02:
What's wrong with this reading that the jury found them guilty of conspiracy to distribute more than 100 grams of heroin?

[00:04:24] Speaker 02:
They joined a conspiracy that distributed more than 100 grams of heroin.

[00:04:31] Speaker 01:
So I think that the main problem with that being the verdict form is that that is not what the government thought the verdict form was asking the jury to find, and that's not what the sentencing court did.

[00:04:42] Speaker 02:
What's critical here is what the jury did, right?

[00:04:44] Speaker 01:
But I think, Your Honor, that if the government doesn't think that that's what the jury was doing when it made that finding, if the district court didn't think that's what the jury was doing when it made that finding,

[00:04:54] Speaker 01:
I think it's unlikely that that's what the jury thought its verdict was being rendered on.

[00:04:58] Speaker 01:
It was making a finding that the conspiracy as a whole here, which involved many people other than just the three appellants in this case, involved an amount that was greater than 100 grams.

[00:05:09] Speaker 05:
And as I read the last, the only question that went to the jury that involves quantity is the last one.

[00:05:14] Speaker 01:
That is correct.

[00:05:15] Speaker 05:
The rest of them don't involve quantity.

[00:05:16] Speaker 05:
And the one that directly speaks to quantity asks the jury whether it determines, as a matter of fact,

[00:05:23] Speaker 05:
that more than 100 grams was involved, not whether ex ante the agreement was to distribute more than 100 grams.

[00:05:29] Speaker 01:
I think that's right, Judge Srinivasan.

[00:05:31] Speaker 01:
So once again, that was just to find out what did the conspiracy actually involve.

[00:05:35] Speaker 01:
I mean, sorry, what did the underlying conduct actually involve?

[00:05:37] Speaker 01:
You're exactly right.

[00:05:38] Speaker 01:
And not what did they agree to do and what was reasonably foreseeable to them.

[00:05:42] Speaker 05:
So I have the following question on this issue.

[00:05:44] Speaker 05:
So the government makes the point that a number of courts of appeals, and I don't know that there's a court of appeals that has decided to the contrary, in the statutory maximum context.

[00:05:55] Speaker 05:
So we have a statutory minimum issue.

[00:05:56] Speaker 05:
Then the same issue arises with the statutory maximum under the same statutory language, basically.

[00:06:01] Speaker 05:
And in the statutory maximum context, it looks like the majority, and I think maybe uniform rule among the courts of appeals, is that the statutory maximum

[00:06:10] Speaker 05:
depends on the amount that's attributed to the conspiracy as a whole, not the amount that's attributed to an individual defendant, either by virtue of agreement or by virtue of Pinkerton.

[00:06:21] Speaker 05:
So it seems like on the courts of appeals have decided that under the maximum context, it's not the rule that you want.

[00:06:27] Speaker 05:
And that seems a little bit odd to me because the statutory language doesn't afford any basis for drawing a distinction on this issue between minimum and maximum.

[00:06:37] Speaker 05:
It seems like either with respect to both the minimum and the maximum, we look only to an individual defendant, or with respect to both the minimum and the maximum, we look conspiracy-wide.

[00:06:45] Speaker 01:
So I agree with that.

[00:06:47] Speaker 01:
I think it should be, I don't think that there's any basis in the statute for this split rule, which I agree does exist in some court of appeals.

[00:06:54] Speaker 01:
I think at least the fourth circuit has adopted the rule I'm advocating for here for both the minimum and the maximum.

[00:07:00] Speaker 01:
But I agree there are some circuits that have adopted the rule that you're referring to.

[00:07:05] Speaker 01:
And generally those are based on pre-apprendi precedent that they're just continuing to follow.

[00:07:10] Speaker 01:
And they're just saying, well, pre-apprendi, the way that we viewed the world as working was we wanted a finding to be made about the offense as a whole to trigger the statutory maximum.

[00:07:18] Speaker 01:
And then we'd rely on the district court judge to get it right in the guidelines context.

[00:07:22] Speaker 01:
And so now all we'll do is we'll just swap out the jury for the judge.

[00:07:26] Speaker 01:
And they haven't rethought those underlying pre-apprendi precedents or whether they make sense.

[00:07:30] Speaker 05:
But it seems like a different issue.

[00:07:31] Speaker 05:
There's one question as to who makes the decision whether it's the judge or jury.

[00:07:35] Speaker 05:
There's another question as to what they're supposed to be deciding, whether you look to the individual defendant or you look to the conspiracy as a whole.

[00:07:41] Speaker 05:
And with respect to the latter one, at least in those courts of appeals, I take your point that there's some courts that have drawn the dichotomy, but in those courts of appeals that have held that the maximum depends on the conspiracies as a whole rather than an individual defendant, do you think that there's a basis for saying that those decisions are right, but you're still right?

[00:08:03] Speaker 05:
Or do you think that your argument just means that those decisions are wrong?

[00:08:07] Speaker 01:
So I think that it's very difficult to square a split system with the statutory text.

[00:08:13] Speaker 01:
The statutory text doesn't seem to contemplate that the minimum and the maximum would vary based on whether it's an offense-specific or a defendant-specific findings.

[00:08:21] Speaker 01:
I think it's hard to square with those.

[00:08:22] Speaker 01:
What I would say is most of the courts that have adopted that rule for the maximum have generally not had a lot of reasoning behind that.

[00:08:29] Speaker 01:
uh... you know the course of really grappled with this grappled with it in the context of the minimums you know there's the fourth circuit and its line of precedent dealing with this most recently in collins but stretching back all the way to nineteen ninety four or whether it's the sixth circuit taking the opposite approach in cases

[00:08:44] Speaker 01:
Once again, reaching back to the 1990s and the Sixth Circuit recently trying to take this issue on block and ultimately being unable to resolve it.

[00:08:52] Speaker 05:
So when you say that those courts haven't really grappled with it, is that your nice way of saying that you think those courts are wrong?

[00:08:58] Speaker 01:
That is my nice way, yes, Judge Srinivasan, saying I think those courts are wrong and I think that the courts who have thought really hard about it, like the Fourth Circuit, have gotten to the right answer, which is completely consistent with the underlying principles of conspiratorial liability that just generally apply across the board.

[00:09:13] Speaker 01:
And if there's other questions on this, I'm certainly happy to answer it, but otherwise I'd like to turn to the underlying convictions here and talk about those for a couple of minutes.

[00:09:22] Speaker 01:
So turning first to the wiretaps, the red issue here, I think this case really illustrates why this Court has said in decisions like Carter that it will closely scrutinize whether a wiretap application complied with a necessity requirement that exists in the statute.

[00:09:35] Speaker 01:
Here, the government omitted material facts from its wiretap affidavit that could have significantly influenced whether the district court decided to issue the wiretap warrant in the first place.

[00:09:47] Speaker 01:
Specifically, the government told the district court that

[00:09:52] Speaker 01:
that while we can't really approach members of conspiracy and try and turn them into either members who are working with us or arrest them, because people generally lawyer up and won't talk to us.

[00:10:02] Speaker 01:
But what the government didn't tell the district court judge was that Washington, the individual that the government was calling the main supplier of heroin in the area, had a consistent pattern of cooperating with the United States and with FBI agents.

[00:10:15] Speaker 01:
and that he'd done that consistently, and therefore he's differently situated than the average person, who maybe the average person wouldn't cooperate, but they had special knowledge here that they just didn't share with the government.

[00:10:25] Speaker 01:
As this Court has said in decisions like Carter and Bechtin, omitting material facts is a reason why a wiretap affidavit may be insufficient and a reason to find that those wiretaps should not have been omitted and should have been suppressed.

[00:10:40] Speaker 02:
Um, and in addition, I'll just say, you know, once you look at the wiretap, have you got some cases in which we have ruled that there was an abuse of discretion, uh, for inadequate finding and necessity?

[00:10:52] Speaker 02:
Uh, so that's a, that's a, that's a big mountain you're climbing.

[00:10:55] Speaker 01:
It is, it is a big mountain.

[00:10:56] Speaker 01:
And in this case,

[00:10:57] Speaker 01:
This court hasn't done it, at least in a very long time, but what I would say is they haven't done it for a long time because generally they're pointing out things like the government hasn't omitted material facts, unlike here where there was that material omission.

[00:11:09] Speaker 01:
And in Ninth Circuit decisions like Blackman, which we cite in our brief, the Ninth Circuit has found that when you have omitting material facts, when you're relying on boilerplate statements, that that is enough to overturn a wiretap affidavit and to find that there was an abuse of discretion.

[00:11:26] Speaker 03:
Was that case, was there like a Franks type analysis?

[00:11:30] Speaker 03:
Because you're not really making a Franks argument in your brief based on some sort of government misleading the district court, right?

[00:11:43] Speaker 01:
Well, I mean, I think we do make an argument in our brief that there was, that the government omitted material facts from its affidavit.

[00:11:51] Speaker 01:
And I think we do make that argument in our brief.

[00:11:53] Speaker 01:
And lay that out and in the night circuit case.

[00:11:56] Speaker 03:
I didn't have the material facts and failing to show necessity though or two completely different things I didn't really read your brief as saying that the omission of material facts Was misleading the court your brief was just saying that there weren't enough facts alleged really to show necessity and

[00:12:19] Speaker 01:
Well, I think that there's two parts to the necessity inquiry.

[00:12:22] Speaker 01:
I think number one is were there enough facts here?

[00:12:25] Speaker 01:
And we have an argument about whether there were enough facts here based on kind of the general boilerplate nature of the allegations here.

[00:12:32] Speaker 01:
But there's the separate requirement that the warrant, the application and the affidavit must have a full and complete statement of the facts showing that necessity is satisfied here.

[00:12:41] Speaker 01:
And so we're also arguing that there wasn't a full and complete statement of the facts as the statute requires.

[00:12:46] Speaker 01:
If I could just turn now briefly, I can see that I'm quickly approaching the end of my time.

[00:12:51] Speaker 01:
I'd like to turn to Cobble's money laundering conviction for just a moment.

[00:12:56] Speaker 05:
Defendant Cobble was acquitted.

[00:12:57] Speaker 05:
Before you get there, and I think you'll have time to do it, but can I just ask you on the Rule 609 issue?

[00:13:03] Speaker 01:
Oh, of course.

[00:13:03] Speaker 05:
I haven't talked about the Rule 609 issue.

[00:13:05] Speaker 05:
So the only question I have about that is your response to the issue that's come up late in the briefing, at least, on the applicability of the Supreme Court's decision in Luce.

[00:13:14] Speaker 05:
which the government argues precludes our review of it because there was no testimony in this case.

[00:13:21] Speaker 01:
Yes, I think I have two responses to the Supreme Court's decisions.

[00:13:24] Speaker 01:
Number one is since the government didn't raise it until the 28-J letter, the government waived that argument and it certainly is an argument that can be waived.

[00:13:32] Speaker 01:
And so I think it's off the table, and this court can just reach the merits of the issue without needing to get into the waiver, without needing to worry about whether Luce says that you can review it or not because of that waiver.

[00:13:42] Speaker 01:
If you were going to reach the merits and decide whether Luce precludes the argument or not, I would say what distinguishes this case from Luce is Luce noted that when an issue has constitutional dimension,

[00:13:53] Speaker 01:
that that may present a different question and the argument that we made in our briefing was that this does have a constitutional dimension and that it wasn't just an heir to admit this testimony but it was an heir that kept

[00:14:03] Speaker 01:
Woodruff from actually taking the stand to testify in his own defense.

[00:14:06] Speaker 05:
So I wasn't sure I followed that because it seems like that argument was equally in play and loose and would equally be in play in any case in which a defendant decides not to testify because of a ruling to admit that a prior conviction would be admitted if he or she would testify.

[00:14:22] Speaker 05:
He'd always have a constitutional overlay in the way that you're describing it.

[00:14:26] Speaker 01:
So I take your point, Judge Srinivasan.

[00:14:28] Speaker 01:
What I would say is there's nothing in loose that suggests that it was actually the argument the defendant was making there.

[00:14:33] Speaker 01:
And the Supreme Court was specifically distinguishing cases where defendants had made those type of arguments until this prior precedent for the 1970s that had been making those kind of distinctions when saying, well, that's not what's at play here.

[00:14:44] Speaker 01:
The only thing that was at play here was the Rule 609 issue.

[00:14:48] Speaker 01:
And similarly, just to address also the one case from this court that the government cites, the government

[00:14:53] Speaker 01:
In that case, it was actually the defense counsel even before the ruling said, we're not going to call those witnesses.

[00:14:58] Speaker 01:
It's very unlikely we're going to call these witnesses.

[00:15:01] Speaker 01:
And that was really important to the court's finding in that case.

[00:15:03] Speaker 01:
Whereas here, counsel was repeatedly asking the district court, please rule on this Rule 609 issue.

[00:15:09] Speaker 01:
My client's really being prejudiced by not knowing the answer to this Rule 609 issue.

[00:15:13] Speaker 01:
And so I think that you have evidence that isn't present in those other cases that, you know, this really was a significant factor influencing whether Woodruff was going to take the stand or not to testify in his own defense on issues that really only he could supply the answer to.

[00:15:26] Speaker 01:
I'm sure about Mr. Cobble.

[00:15:28] Speaker 01:
Okay, great.

[00:15:28] Speaker 01:
So turning to Mr. Cobble and his money laundering conviction.

[00:15:33] Speaker 01:
I don't think any reasonable jury could have found that Kabul either conspired to disguise or conceal the illegal source of the funds that Washington used to pay for the SUV or that he had specifically intended.

[00:15:44] Speaker 02:
Did you make a promotion argument in your briefs?

[00:15:48] Speaker 02:
As I read your briefs and the strategy trial was all focused on concealment.

[00:15:54] Speaker 01:
Yeah, so the government strategy largely at trial because it was focused on concealment.

[00:15:59] Speaker 01:
And then the government in its response brief pointed out that, well, we could also win under the promotion prong.

[00:16:05] Speaker 01:
And we did make some arguments in our reply brief then about the promotion prong and rebutting that argument that they could have found him guilty under the promotion prong.

[00:16:12] Speaker 01:
And also our arguments about cases like law that we talk about in our opening brief and a definetti that we talk about in our opening brief.

[00:16:19] Speaker 01:
which are when you have an innocent explanation for conduct, the government needs to have evidence to rebut that innocent explanation or they can't find someone guilty of money laundering, cut across the issues and go to both the concealment prong and the promotion prong.

[00:16:33] Speaker 02:
What's your strongest argument that there was insufficient evidence on the promotion prong?

[00:16:37] Speaker 01:
I think the strongest evidence of insufficient evidence on the promotion prong is that there was a perfectly legitimate explanation for why Cobble decided to purchase this vehicle and finance it in his name on Washington's behalf, which is that Washington didn't have a driver's license, which is a necessity to register a car and to purchase insurance.

[00:16:54] Speaker 01:
And therefore, he needed someone to facilitate the transaction for him, even though he was going to be paying for it.

[00:17:00] Speaker 01:
And you can see that at A414 and A416 of the record, where that's the testimony that comes out from Washington himself.

[00:17:07] Speaker 01:
And when you have an innocent explanation like that, as this court said in cases like law, that simple, benign reason for the transaction is enough to overturn the conviction.

[00:17:17] Speaker 05:
If the court has any questions... So I have a question about this.

[00:17:20] Speaker 05:
So it may be true that there's an innocent explanation, but that doesn't mean that there's also not a non-innocent explanation.

[00:17:27] Speaker 05:
And where we are here is we have a jury that, by hypothesis, was properly instructed because there was no objection to the instruction.

[00:17:34] Speaker 05:
And if we assume that the jury was properly instructed, why can't we say that a rational jury could have inferred from knowledge that the SUV might be used for an illicit purpose, an intent that the SUV be used for an illicit purpose?

[00:17:53] Speaker 01:
Well, I think that that goes to the statutory text.

[00:17:56] Speaker 01:
And the statute makes very clear that for the promotion prong in particular, it has to be the specific intent.

[00:18:01] Speaker 01:
Right.

[00:18:03] Speaker 01:
I'm sorry, I understand the question.

[00:18:05] Speaker 01:
I understand there's knowledge here and you can infer it, but where the statute is drawing a distinction between knowledge for the other parts of money laundering and it's calling for specific intent, I think that you need more than just evidence of knowledge to find the defendant guilty of having that specific intent to promote the illegal activity.

[00:18:18] Speaker 05:
Really?

[00:18:19] Speaker 05:
So you couldn't have a case in which the prosecution introduces a ton of evidence of knowledge and then the jury specifically instructed

[00:18:29] Speaker 05:
you have evidence of knowledge, you have to conclude that the individual had the specific intent.

[00:18:36] Speaker 05:
And even though all the evidence is only of knowledge, and they conclude, well, the evidence of knowledge is so significant.

[00:18:43] Speaker 05:
And yeah, there's a possible innocent explanation, but you have to choose between the two.

[00:18:48] Speaker 05:
And in the face of this degree of evidence of knowledge, we conclude that the knowledge is suggestive of intent.

[00:18:54] Speaker 05:
You can't have that.

[00:18:55] Speaker 05:
You just can't have that in this context.

[00:18:57] Speaker 01:
So I think that if you had a case that all you had was a mountain of knowledge, a mountain of evidence this person had knowledge, and you had no innocent explanation, maybe in that case the jury could infer intent because there's just no evidence that there was any other intent that was in play.

[00:19:11] Speaker 01:
But where you have another proffered intent, I think that this court has said in cases like Lauda, that's enough to establish

[00:19:17] Speaker 01:
a reasonable doubt, and that unless the government can rebut and show that that intent wasn't actually a legitimate intent or wasn't actually what was motivating the parties, that that means that that's not enough to find a conviction.

[00:19:28] Speaker 01:
Even if there's evidence the person had knowledge that this was part of an illegal scheme, the fact that there's an innocent explanation shows that there's not the intent.

[00:19:36] Speaker 05:
And how would we, you can hypothesize an innocent explanation in almost any situation, even if it was a firearm rather than a contraband, you could hypothesize an innocent explanation.

[00:19:46] Speaker 05:
And so how would this work in practice?

[00:19:49] Speaker 05:
Would the judge have to instruct a jury to determine whether there's an innocent explanation, and then also instruct the jury that if you find that there's a possible innocent explanation, then you have to further determine that the innocent explanation is outweighed by the nefarious explanation?

[00:20:07] Speaker 01:
Well, first, I think there would have to be some evidence introduced that there was an innocent explanation.

[00:20:11] Speaker 01:
I don't think that defense counsel, for example, in closing, could just get up and hypothesize an innocent explanation.

[00:20:16] Speaker 01:
So it would have to be some evidence that there actually was an innocent explanation for this transaction.

[00:20:21] Speaker 02:
Then once you have that... Which is going to be easy to find.

[00:20:23] Speaker 02:
That's not going to be hard to do, right?

[00:20:26] Speaker 01:
Well, it may be that in a lot of cases there will be innocent explanations.

[00:20:32] Speaker 01:
Although I also think that in a lot of cases it may be easy for the government to rebut those innocent explanations.

[00:20:37] Speaker 03:
Is there significance here that the innocent explanation, that evidence came from the government's chief witness?

[00:20:44] Speaker 01:
I think that certainly helps and certainly makes it more plausible that that explanation is true and legitimate when it's the government's own witness who is both offering the innocent explanation and is also saying on the concealment prong in particular, it never even occurred to us to do concealment.

[00:20:58] Speaker 01:
That never even entered our minds.

[00:21:00] Speaker 01:
So I do think that you're exactly right Judge Wilkins.

[00:21:03] Speaker 01:
When the government's own witness is offering up that kind of testimony, I think that makes it stronger that there is an innocent explanation here that needs to be taken seriously under this court's cases like law.

[00:21:13] Speaker 02:
Could you also address the career offender enhancement?

[00:21:16] Speaker 01:
Oh, sure.

[00:21:17] Speaker 01:
I'd be happy to address the career offender enhancement.

[00:21:19] Speaker 01:
I think the answer on the career offender enhancement is that

[00:21:22] Speaker 01:
Both sides now agree that under the force clause of the career offender enhancement, the offense, Woodruff's 1984 conviction, does not qualify as a career offender predicate.

[00:21:36] Speaker 01:
And that was the only theory that the government pressed below.

[00:21:39] Speaker 01:
It only argued the force clause.

[00:21:41] Speaker 01:
It wasn't until its response brief in this case that it actually raised

[00:21:45] Speaker 01:
that it may be the residual clause.

[00:21:48] Speaker 01:
And that's exactly what happened in Johnson versus United States in the Supreme Court, where a forced clause case got up to the Supreme Court.

[00:21:57] Speaker 01:
And the government said in its brief, we think we're right under the force clause, but if you disagree with us, please remand and send it back for the, for the district court to determine whether this qualifies as a predicate offense under the residual clause.

[00:22:09] Speaker 01:
And the Supreme Court, a decision written by Justice Scalia said, no, you made your choice to argue this as a force clause case rather than a residual clause case.

[00:22:17] Speaker 01:
And so you've now waived that issue.

[00:22:19] Speaker 01:
And you can't bring it up in front of us, and you can't bring it up on remand.

[00:22:23] Speaker 01:
The issue's foreclosed, and you can't prove he was a career offender, or in that case, an armed career criminal.

[00:22:30] Speaker 02:
OK, great.

[00:22:31] Speaker 02:
We'll give you some time back.

[00:22:53] Speaker 00:
May it please the court, Peter Smith on behalf of the United States.

[00:22:56] Speaker 00:
I'll address the arguments that appellant raised this morning, but I'm going to go in a slightly different order if that's all right with the court.

[00:23:03] Speaker 00:
I'd like to start with the wiretap and end up with the sentencing claims.

[00:23:10] Speaker 00:
I just had a few brief points on the wiretap issue, which is appellant's argument that the wiretap, there was insufficient necessity for the wiretap affidavit.

[00:23:23] Speaker 00:
The basic argument that Appellant made this morning seems to me waived.

[00:23:28] Speaker 00:
His argument is a Frank's claim, essentially, that there were material omissions in the affidavit, and Appellant didn't raise that in the district court.

[00:23:40] Speaker 00:
So that argument is waived, and it's too late to make it in his reply or at oral argument.

[00:23:46] Speaker 00:
With respect to the Rule 609 claim, of course, we believe that the conviction would have been admissible under 609.

[00:23:56] Speaker 00:
But the court doesn't need to address that.

[00:23:59] Speaker 00:
Luce is binding precedent.

[00:24:01] Speaker 00:
This court has applied Luce in the past.

[00:24:04] Speaker 00:
It's actually expanded the rationale of Luce and applied it not just to the testimony of defendants, but to defense witnesses as well.

[00:24:12] Speaker 03:
And so- Can't this issue have been forfeited by the government?

[00:24:16] Speaker 00:
I'm not sure that it could have.

[00:24:19] Speaker 00:
It's certainly unfortunate we didn't raise this in our opening brief.

[00:24:22] Speaker 00:
That was an oversight on my part, and I take responsibility for that.

[00:24:26] Speaker 00:
But it's binding Supreme Court precedent.

[00:24:30] Speaker 00:
So I don't see it as the kind of thing where the government has some sort of equity in the fight and would waive it by not advancing it earlier.

[00:24:39] Speaker 00:
I don't see it as that kind of an argument.

[00:24:42] Speaker 03:
And although appellant... I mean, the government can forfeit

[00:24:46] Speaker 03:
arguments on appeal in criminal cases.

[00:24:51] Speaker 00:
Certain sorts of arguments I would agree with that Judge Wilkins and I'm not sure that this is that sort of an argument.

[00:24:57] Speaker 00:
This is a case that would control, that would say the court wouldn't reach

[00:25:02] Speaker 00:
the question.

[00:25:03] Speaker 00:
And there are other kinds of arguments that the government can't waive, like jurisdiction.

[00:25:07] Speaker 05:
So in this context, for example, if the government took the position before us or before an appellate court that said, we recognize that this is a case in which the defendant didn't testify, so under loose

[00:25:18] Speaker 05:
one could conclude that the issue can't be reviewed.

[00:25:21] Speaker 05:
But this particular issue on the admissibility of this kind of prior conviction is an issue that affects the government in a broad array of cases and would actually like the Court of Appeals to resolve it.

[00:25:32] Speaker 05:
So it's not just forfeiture, it's actually invitation to decide the issue.

[00:25:38] Speaker 05:
Your view is that Luce would tell the Court of Appeals that even though the government actually wants the issue resolved, the Court of Appeals can't get to it because of Luce.

[00:25:48] Speaker 00:
I guess I would agree with that, yeah.

[00:25:50] Speaker 00:
You think so?

[00:25:51] Speaker 00:
Okay.

[00:25:52] Speaker 00:
Yeah.

[00:25:52] Speaker 00:
And even if the court weren't going to apply loose in the manner that we're suggesting, it would still go to the harmlessness of any error because the same principle would apply that the harm to the defense case would be speculative because the defendant didn't actually testify.

[00:26:06] Speaker 00:
So you can look at it in either on the error point or the harmlessness point either way.

[00:26:12] Speaker 00:
And the result would be the same.

[00:26:13] Speaker 00:
There are no additional questions about that.

[00:26:16] Speaker 00:
I'd like to move on to the

[00:26:21] Speaker 00:
the money laundering point, excuse me, and then I'll talk about the sentencing issues.

[00:26:27] Speaker 00:
The money laundering conviction was supported by sufficient evidence here.

[00:26:33] Speaker 00:
And I guess to distill the government's argument down to its essence, at least as to the promotional prong of money laundering, Appellant's argument at bottom is that under law, as long as he can put forward some sort of innocent explanation,

[00:26:51] Speaker 00:
he should prevail.

[00:26:53] Speaker 00:
And while we disagree with that reading of law, the simple factual response to that question is here you had a much stronger, inculpatory explanation that

[00:27:07] Speaker 00:
Appellant is caught on the wiretap discussing, Appellant Cobble is discussing with Woodruff buying bullets for Woodruff's gun.

[00:27:19] Speaker 00:
He's discussing buying drugs and he's doing that at the same time they're talking about getting Woodruff a new car.

[00:27:27] Speaker 00:
would have then turned around and used that same car in the next day or two.

[00:27:31] Speaker 03:
But just to be clear, what were the drugs that they were discussing?

[00:27:35] Speaker 00:
They're talking about, right, they're talking about buying marijuana, which wouldn't be the charge.

[00:27:40] Speaker 00:
For personal use.

[00:27:42] Speaker 00:
It seems that way, yes.

[00:27:44] Speaker 00:
Right.

[00:27:45] Speaker 03:
So how do you get from there to knowledge that this is promoting the conspiracy?

[00:27:52] Speaker 03:
to distribute heroin.

[00:27:54] Speaker 00:
Sure, two responses, and one is that the drugs and the bullets shows that there isn't an innocent explanation, or at least not to the extent that an appellant would claim.

[00:28:08] Speaker 00:
And then the second part of the answer is, what is, Judge Wilkins, your question is, what exactly is that evidence?

[00:28:14] Speaker 00:
And there's a lot of that evidence, and that would be that

[00:28:22] Speaker 00:
Appellant at Kabul and Woodruff had a very close relationship.

[00:28:26] Speaker 00:
Washington testified that

[00:28:35] Speaker 00:
I'm sorry, Washington didn't have a job at the time, at the relevant time.

[00:28:42] Speaker 00:
He had no job.

[00:28:43] Speaker 00:
He was a lifelong drug dealer.

[00:28:45] Speaker 00:
He said that things were going like, he told Cobble on the wiretap, things were going like he needed to go, that the jury could have inferred he was making money, that he was going to deposit money.

[00:28:55] Speaker 00:
for the car, at the same time they're talking about getting bullets, they're talking about buying drugs.

[00:29:03] Speaker 05:
So I thought it was kind of interesting that as you're brief in the sections where you talk about the Kabul conviction, the relevant passages all speak in terms of Kabul knowing that Washington could use the SUV for

[00:29:18] Speaker 05:
the purpose of furthering his drug dealing.

[00:29:23] Speaker 05:
Under the statute, that's not enough.

[00:29:25] Speaker 05:
I'm not trying to hold you to the precise wording of your briefing, but what I'm trying to say is that the wording of your briefing is just indicative of a broader proposition, which is that it may well be that Kabul knew that the SUV could be used for an illicit purpose, but would you disagree that the jury needed to have found more than that?

[00:29:47] Speaker 00:
I don't disagree with that, Your Honor, and while at times we talked about knowledge, I think I have sort of like a two-part answer to your question.

[00:29:55] Speaker 00:
One is that the jury was properly instructed, and the government's language that you're pointing to in the government's brief reflects

[00:30:02] Speaker 00:
the charge to the jury.

[00:30:03] Speaker 00:
So first of all, the jury has to find that knowledge that the money came from drug distribution, it was the proceeds of drug trafficking.

[00:30:13] Speaker 00:
So it had to find that.

[00:30:15] Speaker 00:
And then it has to find that the transaction was structured or the use of the money was to promote, if we're talking about promotion or concealment, to promote

[00:30:26] Speaker 00:
drug trafficking.

[00:30:28] Speaker 00:
So here you have both knowledge and intention, and the arguments in the governance brief go to both, although we framed it, you know, we talked about knowledge, and I think that's because we have to show knowledge that the drugs came, that the money came from drug trafficking, but the same points we raised in our brief show that appellant had the

[00:30:48] Speaker 00:
the intention to basically to buy the car for Washington to use in drug trafficking.

[00:30:56] Speaker 05:
What was the evidence that showed that Kabul had that intention beyond that Kabul had the knowledge?

[00:31:01] Speaker 05:
What was the evidence that showed that Kabul had the intention that the SUV be used to further the drug trade beyond the evidence that Kabul knew that it could be used to further the drug trade?

[00:31:12] Speaker 00:
Right.

[00:31:12] Speaker 00:
I think that the jury would have to infer that, but I think there was a lot of evidence from which the jury could infer that as the court.

[00:31:19] Speaker 00:
talked about earlier, if you have a mountain of evidence about knowledge, the jury can infer from that.

[00:31:28] Speaker 00:
And here you have a close relationship.

[00:31:30] Speaker 00:
So you could have more.

[00:31:30] Speaker 05:
I just want to make sure.

[00:31:32] Speaker 05:
You're right that purpose can be inferred from knowledge.

[00:31:35] Speaker 05:
You could also have direct evidence of purpose, or even indirect evidence of purpose, beyond knowledge.

[00:31:39] Speaker 05:
And I just want to make sure that there's nothing like that in this case.

[00:31:42] Speaker 05:
So your argument that the evidence is sufficient as to purpose is that there was lots of evidence of knowledge, and from that the jury could infer purpose.

[00:31:52] Speaker 00:
Right, and I'm happy to tick off the four or five most salient points, but I would agree with that, that that's the way our argument worked.

[00:31:59] Speaker 00:
And that's what we argued to the jury.

[00:32:01] Speaker 00:
The jury was properly charged.

[00:32:03] Speaker 00:
you know, we infer from their finding of guilt that they found intent, not just knowledge.

[00:32:10] Speaker 00:
So they did infer intent.

[00:32:11] Speaker 00:
And, you know, the co-defendant was a lifelong drug dealer.

[00:32:16] Speaker 00:
We had these conversations about, you know, things are going well for me.

[00:32:20] Speaker 00:
I can put money towards the car.

[00:32:23] Speaker 00:
He's, you know, they're talking about buying bullets, which is a non-innocent

[00:32:26] Speaker 00:
As soon as they buy the car or within a day or two, the co-defendant is using the car to buy, to sell drugs to Sandra Settle.

[00:32:40] Speaker 00:
And if you look at the timing of the chronology, so you can infer from that that Kabul would have known that, or not just would have known, but intended to promote drug trafficking.

[00:32:50] Speaker 05:
So we have our decision in law, and that under the, it's under the casino prop, but we make the observation that

[00:32:56] Speaker 05:
Because in money laundering, you've got this potential conundrum in that you need to show that the evidence, you need to show not just that there was expenditures, because that's okay, but you need to show that the expenditures are elicit either under the consumer prong or under the promotion prong.

[00:33:12] Speaker 05:
So, and under that decision, we say, in a situation in which there is an innocent explanation at work and the government has to do work to discount the innocent explanation, do you dispute that that same framework would apply here as well?

[00:33:24] Speaker 05:
on the promotion problem?

[00:33:26] Speaker 00:
I guess so because

[00:33:28] Speaker 05:
Can you win if that same framework does apply?

[00:33:31] Speaker 00:
Yeah, I think that's the easier path home for the government because here you have to discount the innocent explanation.

[00:33:39] Speaker 00:
The innocent explanation that's been proffered on appeal is Cabo was just trying to do a favor for his friend or the guy who was raised like his brother, his co-defendant.

[00:33:51] Speaker 00:
And here, like I said, you have the wiretap conversations about getting bullets.

[00:33:57] Speaker 00:
You have them.

[00:33:58] Speaker 00:
talking about drugs, albeit for personal use, you have the timing of the whole thing where there's a car wreck, the co-defendant needs a new car, and then a few days after the structuring of this transaction, he's using that same car to sell drugs.

[00:34:18] Speaker 00:
You have a lot of testimony from Washington about the fact that these transactions occur in cars.

[00:34:24] Speaker 00:
You have drug expert testimony saying, this is how this conspiracy operated.

[00:34:28] Speaker 00:
So you have all of that working together.

[00:34:31] Speaker 00:
And the jury has got common sense.

[00:34:32] Speaker 00:
They've got to look at the totality of the evidence, add it together, weigh it, and they can draw inferences from that.

[00:34:39] Speaker 05:
And the way that- So my last question along these lines, and I appreciate all the evidence you just outlined, is this, and then I'll stop.

[00:34:45] Speaker 05:
with apologies for asking this series of questions.

[00:34:48] Speaker 05:
If you had the exact same circumstances and the item at issue is not an SUV but a phone, and it's just a phone that's given as a birthday gift, you could make all the exact same arguments and we'd be in exactly the same place.

[00:35:03] Speaker 00:
Is that right?

[00:35:04] Speaker 00:
Yeah, I just think that would be a harder case because, for one, it's a birthday gift.

[00:35:09] Speaker 00:
You know, here I mentioned the drug sale that Sanders set all day or two after the buying of the SUV that's at issue.

[00:35:16] Speaker 00:
That's a transcript.

[00:35:17] Speaker 00:
It's at appendix page 419.

[00:35:20] Speaker 00:
The court wanted to look at that.

[00:35:21] Speaker 00:
The wiretap conversation I referenced is July 17th.

[00:35:24] Speaker 00:
It's referenced in the government's brief.

[00:35:26] Speaker 00:
And in the government's brief also is the conversation about things are going like I need it to go, which is, I mean, these are guys who grew up together.

[00:35:33] Speaker 00:
They know each other.

[00:35:34] Speaker 00:
And the co-defendant is saying to God, well, look, things are going well for me.

[00:35:38] Speaker 00:
The jury is allowed to draw inferences from that, and I think that's sufficient.

[00:35:42] Speaker 03:
What do we take from the fact that the jury acquitted him of the drug conspiracy?

[00:35:47] Speaker 00:
Well, the government's argument, there are two, there are different elements, and there's different requirements, so I guess that's one response.

[00:35:53] Speaker 00:
And the second is that the government's argument on the conspiracy count was that Kabul is a member of the drug conspiracy because he bought the car that Woodruff was going to, or Washington was going to use for drug trafficking.

[00:36:07] Speaker 00:
You know, the jury may have compromised on that.

[00:36:12] Speaker 00:
They may have felt that that was too thin a read to support a conspiracy conviction.

[00:36:16] Speaker 00:
We don't know why the jury thought that.

[00:36:21] Speaker 00:
But that doesn't undercut the government's evidence on the money laundering count, which has different elements and has different requirements.

[00:36:31] Speaker 00:
there no further questions about that, I'll move to the sentencing claims and I guess I'll also address this in reverse order.

[00:36:37] Speaker 00:
The career offender argument, the main argument appellants made this morning was that the government has waived

[00:36:46] Speaker 00:
its reliance on the residual clause under Johnson and although I think that that is not the case because in Johnson the government affirmatively disavowed that and that is not what happened here.

[00:36:58] Speaker 00:
You had a very complex legal environment where the other Johnson, the 2015 Supreme Court Johnson decision had come down and the government was uncertain

[00:37:08] Speaker 00:
about that and believed that that opinion that that applied to the guidelines and therefore didn't make this argument so that is distinguishable but in any event I'm not sure that the court even needs to reach that question because that goes to the error point here any error would be harmless because the district court made very clear and cited in the government's brief that it would have imposed the same sentence

[00:37:32] Speaker 00:
anyway for Woodruff.

[00:37:35] Speaker 00:
And that language was very stark.

[00:37:37] Speaker 00:
The parties had been arguing in those two transcript pages about their various positions and about the respective sentences that they thought were appropriate.

[00:37:45] Speaker 00:
And the district court said expressly, I would have given the same sentence anyway.

[00:37:51] Speaker 02:
So that would be our... Without the career of Henry Hanson.

[00:37:55] Speaker 00:
Yes, yeah.

[00:37:56] Speaker 00:
And I would say that that was shorthand for

[00:37:59] Speaker 00:
Basically, the district court was saying, look, I hear your arguments, defense, and I would have imposed the same sentence anyway.

[00:38:06] Speaker 03:
So you think that in any case where the district court, let's say there's a dispute between the defendant and the government over the proper guidelines range.

[00:38:17] Speaker 03:
And the government says, well, it's 120 to 132 months.

[00:38:23] Speaker 03:
And the defense says, no, it's really 80 to 96 months.

[00:38:28] Speaker 03:
And the district court says, well, I agree with the government, and I'm going to give the defendant, you know, let's say it's something within the defendant's range, proposed range.

[00:38:46] Speaker 03:
And if it turns out that really the proper range was the defense range, I would have given the same sentence anyway.

[00:38:55] Speaker 03:
All of those cases that come to us on appeal, we just say we don't really need to resolve that dispute because it's harmless.

[00:39:03] Speaker 03:
That's the way that we're supposed to deal with those cases.

[00:39:05] Speaker 00:
I think that that would be harmless, unless I misunderstand the question.

[00:39:09] Speaker 00:
I mean, if it was a different guideline range and both parties were wrong, it would be error, but it would still be harmless.

[00:39:15] Speaker 00:
So I think that's right.

[00:39:17] Speaker 03:
And what's your best precedent for us having done that in the past?

[00:39:23] Speaker 00:
Well, I guess

[00:39:25] Speaker 00:
Offhand, I'm thinking about plain error cases, but where the district court has made a statement, like I understand the party's sentencing arguments, and there's a dispute about the range, but I would have given, I think this is the appropriate sentence I would give it anyway.

[00:39:42] Speaker 00:
I can't think of the name of a case right now, but I think there's several decisions authored by Judge Henderson where a district court has made

[00:39:55] Speaker 00:
sort of categorical pronouncement like that, and this court has found the error to either be harmless or not to meet the plain error prejudices requirements.

[00:40:03] Speaker 03:
So I would say that- We're not in plain error here.

[00:40:05] Speaker 00:
I know, I understand that, but the argument would be the same, that if the district court makes clear that, you know, regardless of the proper guideline range, I would have given the sentence,

[00:40:15] Speaker 00:
That error's gotta be harmless because whether the guidelines are correct or not, that goes to the error point, right?

[00:40:22] Speaker 00:
I mean, so if you remand it, the district court is, there's no need to remand, I guess is what our argument is.

[00:40:28] Speaker 03:
Well, couldn't the district court, I mean, I'm an old district court judge, you know.

[00:40:32] Speaker 03:
Hearing this, if we rule this, wouldn't I, if I were a savvy district court judge at the end of every sentencing, just say to error-proof my sentencing?

[00:40:43] Speaker 03:
You know, there's been a lot of talk about different guidelines ranges and regardless of what the guideline range really would have been, I would have given the same sentence.

[00:40:53] Speaker 03:
why wouldn't I just say that at the end of every sentencing to make it bulletproof on appeal, so to speak?

[00:41:00] Speaker 00:
I guess they could, but it would have to be true, and it may not be true in every case.

[00:41:05] Speaker 00:
You know, it was true here, and it's true in some other cases that I could think of.

[00:41:10] Speaker 03:
What do you mean it would have to be true?

[00:41:11] Speaker 03:
You mean you would dispute the word of a district court judge?

[00:41:15] Speaker 00:
No, no, no.

[00:41:15] Speaker 00:
I mean that the district court judge wouldn't say that unless that

[00:41:19] Speaker 00:
that you wouldn't have the district court saying that in every case because it would have to believe the district court would have to believe that that was the appropriate sentence regardless of the difference about the guidelines so and that may not be the case in it always I mean the district court may want to give

[00:41:36] Speaker 00:
Within guidelines range sentence and it may say look I want to give like in your hypothetical I want to give in the defense range and it may be wrong, but so I'm just saying that The situations where we have this arising may be more limited Where the district court says look the appropriate sentence is

[00:41:55] Speaker 00:
80 months, which was the sentence here, no matter what.

[00:41:59] Speaker 00:
I hear the arguments about the guidelines.

[00:42:01] Speaker 00:
I hear the arguments about the career offender.

[00:42:03] Speaker 00:
And I don't care.

[00:42:05] Speaker 00:
I think the proper sentence is 80 months.

[00:42:07] Speaker 00:
I don't think there's a lot of cases where that happens.

[00:42:10] Speaker 03:
So I suppose then you would agree if we were to adopt that rule that would apply against the government.

[00:42:16] Speaker 03:
So if the district court adopts a low guidelines range,

[00:42:20] Speaker 03:
The government asked for a much higher guidelines range.

[00:42:23] Speaker 03:
The district court sentences within the defendant's lower guideline range and says on the record, well, even if the government's right and the guidelines range is way higher, I'd still give the same sentence in the government appeals.

[00:42:38] Speaker 03:
We would just rule against the government on harmlessness grounds, no remand.

[00:42:44] Speaker 00:
Yeah, I can't think of an instance where we've appealed in that circumstance, but that would flow logically from our position.

[00:43:02] Speaker 00:
We didn't talk about that beforehand.

[00:43:04] Speaker 00:
I'm not sure that I want to, maybe I'm missing something, but I think that

[00:43:10] Speaker 00:
you know, that that would be our position, but I don't want to say that, speaking on behalf of the Department of Justice, I believe that.

[00:43:17] Speaker 02:
If we didn't think your approach to the Career Offender Statute was the right way to go, the enhancement, can you help us think about what the residual clause does here?

[00:43:29] Speaker 00:
Sure, sure.

[00:43:32] Speaker 00:
So the residual clause says, as it was at the time, because it's been deleted from the guidelines.

[00:43:40] Speaker 00:
So it says that a crime of violence would be, among other things, a felony offense that has a serious potential risk of physical injury to another.

[00:43:52] Speaker 00:
So our merits argument on this is that DC armed robbery, although it includes stealthy snatching,

[00:43:58] Speaker 00:
is such a crime because like the Welch case in the Eleventh Circuit explains, the victim or the bystander may try and stop the defendant and therefore there is a potential physical injury to another through the confrontation that ensues from a robbery, even if it's a stealthy sort of pickpocketing robbery.

[00:44:19] Speaker 02:
Doesn't that reading just completely swallow the force

[00:44:22] Speaker 02:
I mean, we're out of the world of force, at least logically here, right?

[00:44:28] Speaker 02:
Right.

[00:44:28] Speaker 02:
And so, at least the force clause.

[00:44:32] Speaker 02:
So, I think that argument may prove to be mine.

[00:44:34] Speaker 00:
I don't think so, Your Honor, because, you know, look, these are two different clauses.

[00:44:38] Speaker 00:
The one is the residual clause.

[00:44:40] Speaker 00:
It's what's left over.

[00:44:41] Speaker 00:
I mean, I don't think the residual clause is limited by the elements clause, because the reverse would be that you couldn't have anything in the, I mean, that if it were, then there wouldn't be any need for the residual clause, right, because everything would either fall into the elements clause or not.

[00:44:59] Speaker 00:
So there's got to be some space where a crime wouldn't fit the elements clause, but it would fit the residual clause.

[00:45:06] Speaker 00:
And we would argue this is the kind of situation.

[00:45:09] Speaker 00:
It might not fit either.

[00:45:13] Speaker 00:
Right.

[00:45:13] Speaker 00:
It could, but we've explained our rationale.

[00:45:16] Speaker 00:
I think Welch supports that, and we've cited a bunch of other cases.

[00:45:20] Speaker 00:
I haven't seen cases from the defense saying,

[00:45:24] Speaker 00:
you know, on the back end of that, saying there's no risk of injury or violence coming from a pickpocket snatch.

[00:45:30] Speaker 00:
Maybe I'm wrong about that, but, you know, we cited a number of cases where courts have held that, so.

[00:45:35] Speaker 03:
Do we look just at the elements, or do we look at the facts of this conviction?

[00:45:40] Speaker 00:
We agree that you would look at the, that you would employ the categorical approach, if that's what the court's asking, so you wouldn't look at the underlying facts.

[00:45:48] Speaker 00:
But in a pickpocketing snatch,

[00:45:53] Speaker 00:
Yeah, I mean, you would employ the categorical approach.

[00:45:57] Speaker 02:
It's not any risk, right?

[00:45:58] Speaker 02:
I mean, it presents a serious potential risk of physical injury.

[00:46:03] Speaker 00:
Right.

[00:46:03] Speaker 00:
It's not any risk.

[00:46:04] Speaker 00:
Right.

[00:46:07] Speaker 00:
I mean, I guess I would say, by analogy, the Supreme Court has found sort of similarly serious risks in... I'm getting outside of what we brief, but...

[00:46:18] Speaker 00:
In the Johnson cases, there's disputes even among the opinions in the Supreme Court about which crimes fall under the, and there are crimes like burglary that, I'm forgetting the name of the case, but if you look at burglary as being something that has a risk of violence or injury, it's the same rationale.

[00:46:43] Speaker 00:
It's because somebody may try and stop the burglar

[00:46:46] Speaker 00:
from entering the home, right?

[00:46:52] Speaker 05:
This is all on Woodruff, so we haven't talked about Stoddard because there's the question about, the antecedent question about whether you calculate drug quantity based on the individual defender on the conspiracy as a whole.

[00:47:04] Speaker 00:
Correct, and we haven't, as far as I know, talked about that issue yet.

[00:47:08] Speaker 05:
And my leading question to get you to talk about that issue is this, which I take it that now the government

[00:47:14] Speaker 05:
is taking the position in all D.C.

[00:47:16] Speaker 05:
cases, at least in all D.C.

[00:47:17] Speaker 05:
cases, and I don't know, maybe elsewhere too, that the proper way to apply this provision is conspiracy wide rather than defendant by defendant, even though you took the opposite position below.

[00:47:28] Speaker 00:
Yeah, we did take exit position below, and the judge, the district court overruled our objection, did not give the jury instructions that we were asking for the verdict form.

[00:47:39] Speaker 00:
So what we're doing now is defending the district court.

[00:47:42] Speaker 00:
Yeah, right.

[00:47:42] Speaker 00:
So I know you're doing it in this case.

[00:47:43] Speaker 00:
You're saying, are we doing this board?

[00:47:44] Speaker 00:
Yeah.

[00:47:45] Speaker 00:
I believe that we're still instructing line prosecutors per DOJ policy to go with the individualized, to suggest to the district court that it ought to use the individual.

[00:47:56] Speaker 05:
Oh, even in – so even in D.C.

[00:47:59] Speaker 05:
So this is a one-case wonder.

[00:48:00] Speaker 05:
Your argument in this case is a one-case wonder.

[00:48:03] Speaker 05:
I mean that's actually contradicted by the argument you're making in other cases, even in the same jurisdiction.

[00:48:07] Speaker 00:
Yeah, I don't know.

[00:48:08] Speaker 00:
I'm gonna have to go back and talk about that because we didn't talk about that in preparing for the argument and that seems, now seems quite obvious to me, but so maybe our arguments in this case haven't caught up with the rest of the office, but.

[00:48:22] Speaker 00:
Or vice versa.

[00:48:23] Speaker 00:
Yeah, vice versa, yeah.

[00:48:24] Speaker 00:
But the reason that this came about and

[00:48:28] Speaker 00:
you know, we will address that internally.

[00:48:30] Speaker 00:
But it was because, you know, we did urge the district court to do something, but it didn't do that, right?

[00:48:35] Speaker 00:
So now we're in the position of defending what the district court did, and we give reasons why we think that... I mean, you didn't have to defend what the district court did.

[00:48:43] Speaker 05:
Obviously, the government doesn't always do that.

[00:48:45] Speaker 05:
There is such a thing as confessing error.

[00:48:47] Speaker 00:
Yeah, that's correct, but in the... Some would say that's a noble thing to do.

[00:48:52] Speaker 00:
Well, the government has taken this position in elsewhere.

[00:48:56] Speaker 00:
So like in the Sixth Circuit, for example.

[00:48:57] Speaker 00:
Right, because you've got a court of appeals decision there.

[00:49:00] Speaker 00:
Right.

[00:49:01] Speaker 00:
So we were simultaneously litigating the same issue in the same posture here and in the Sixth Circuit, as Appellant noted earlier today.

[00:49:10] Speaker 00:
The Sixth Circuit

[00:49:12] Speaker 00:
The panel decision is still there, and we rely on it.

[00:49:16] Speaker 00:
I think it's Robinson, I think, is that case, and that gives the rationale that we articulate in our brief.

[00:49:22] Speaker 00:
It's the same one.

[00:49:23] Speaker 00:
You know, 841 and 846, the plain language, indicates that you have a conspicuability predicated

[00:49:30] Speaker 00:
the actions of the different conspirators.

[00:49:33] Speaker 00:
You just have liability.

[00:49:35] Speaker 00:
And here you have the jury making a finding, a finding of a hundred grand or more.

[00:49:41] Speaker 00:
So this may be a sort of hybrid of the cases where you might have the instance where you don't have that sort of finding by the jury.

[00:49:51] Speaker 00:
But we were litigating in those two different venues at the same time, and that's why it came to you in this way.

[00:49:58] Speaker 05:
Yeah, I guess I'm just making the point that it sounds like that it may be the case that you're making an argument in this brief and in this case that your office is not actually making it.

[00:50:06] Speaker 00:
Yeah, I don't actually know the answer to that.

[00:50:08] Speaker 00:
Okay.

[00:50:10] Speaker 00:
I didn't dig into that in preparation for argument.

[00:50:15] Speaker 00:
But it's something that I want to find out.

[00:50:18] Speaker 05:
OK, so let's just put that question to the side.

[00:50:22] Speaker 05:
Then on the merits of the question, whether your argument in this case is right or the argument that your office is making elsewhere is right, let's talk about that.

[00:50:28] Speaker 05:
As to that, if we put aside the statutory maximum issue and how the Court of Appeals deal with the statutory maximums, if we just look at the way this ordinarily works in conspiracy land,

[00:50:41] Speaker 05:
Why isn't it the case that Pinkerton, as is normally the case, just sets the outer perimeter of responsibility and the conspiracy sphere?

[00:50:48] Speaker 05:
And what you're asking us to do in this case goes even beyond Pinkerton.

[00:50:51] Speaker 00:
It is different from Pinkerton, and my response is that Pinkerton, inapplicable is the wrong word, but Pinkerton is just a separate issue.

[00:51:00] Speaker 00:
It expands liability after the fact for crimes committed and further into the conspiracy that are reasonably foreseeable.

[00:51:08] Speaker 00:
And here we're talking about the conspiracy charge itself.

[00:51:11] Speaker 00:
So that's different from Pinkerton and we're also, in our view, talking about statutory construction.

[00:51:17] Speaker 00:
We're talking about what's the plain language of the statute and the plain language of the statute is not limited by Pinkerton principles, for example.

[00:51:26] Speaker 00:
Pinkerton is a totally separate question.

[00:51:29] Speaker 00:
What is the conspirator on the hook for?

[00:51:30] Speaker 00:
After they enter the conspiracy,

[00:51:32] Speaker 00:
which is the antecedent question, what other crimes that are committed by co-conspirators can be attributed?

[00:51:40] Speaker 03:
But in a drug conspiracy, you could have a dozen, two dozen different people who are members of the conspiracy, some for different time periods, some might be a member for a couple months and then they're locked up in jail.

[00:52:02] Speaker 03:
and the conspiracy goes on, et cetera.

[00:52:07] Speaker 03:
So they might be all liable of being members of the same conspiracy writ large, but here the question is, it's a conspiracy to distribute what quantity of drugs and how can it be, other than what we said in law,

[00:52:29] Speaker 03:
citing a number of circuits that we have to look at what's reasonably foreseeable for each defendant to know how to attribute the quantity of the drugs from the conspiracy that is attributable to them or that they should be held responsible for.

[00:52:50] Speaker 00:
Well, I guess two responses, Your Honor.

[00:52:52] Speaker 00:
One is that the jury did find that the conspirators were responsible for 100 grams.

[00:53:01] Speaker 03:
Well, it found that the language from the jury instructions

[00:53:13] Speaker 03:
didn't ask anything about reasonable foreseeability.

[00:53:17] Speaker 03:
It just says whether the government proved that the amount of the mixture of substance containing heroin that was a subject of the conspiracy was a hundred grams or more.

[00:53:28] Speaker 00:
Right, so there you have a finding by the jury about the object of the conspiracy being 100 grams of Mars.

[00:53:32] Speaker 00:
I guess that's in part my answer.

[00:53:35] Speaker 00:
The other part of my answer is that our position, which is setting aside Pinkerton and not looking at reasonable foreseeability, is consistent with conspiracy liability in that you can be a member of a conspirator in the way that your hypothetical envisions,

[00:53:53] Speaker 00:
without knowing the precise type of illegal drug the conspiracy is distributing or the quantity.

[00:54:00] Speaker 00:
The liability attaches regardless.

[00:54:04] Speaker 00:
It's in agreement to distribute illegal drugs.

[00:54:06] Speaker 03:
So let's suppose the facts were that one of the defendants joined the conspiracy

[00:54:14] Speaker 03:
and then was arrested and locked up for an unrelated charge and was in jail for the remainder of the time of the conspiracy.

[00:54:25] Speaker 03:
And a total of 100 grams or more of heroin was sold, but it's undisputed that 90 grams of it were sold after the defendant was put in jail.

[00:54:38] Speaker 03:
What would we do with that defendant?

[00:54:40] Speaker 00:
Well, unless that defendant going to jail somehow withdrew that defendant from the conspiracy, I think that the defendant would be on the hook for that amount.

[00:54:51] Speaker 00:
But here, you don't have to.

[00:54:53] Speaker 03:
So he'd still have to mail in a letter or something to withdraw from the conspiracy.

[00:54:58] Speaker 00:
I guess, or take avail of him or herself of the safety valve, for example.

[00:55:03] Speaker 00:
But here, I don't think this case is quite that difficult because

[00:55:10] Speaker 00:
You have, at least with respect to Woodruff, he physically possessed more than 100 grams of heroin.

[00:55:19] Speaker 05:
So that's a harmless error argument.

[00:55:20] Speaker 00:
Right.

[00:55:21] Speaker 05:
I think the questions that are being asked, Judge Wilkinson and the rest of us, don't get to harmless error yet.

[00:55:28] Speaker 00:
Right.

[00:55:29] Speaker 00:
I think the defendant would be on the hook for that.

[00:55:31] Speaker 00:
I think that's the way conspiracies operate.

[00:55:33] Speaker 00:
By analogy, you know, they don't have to know the amount of drugs that are distributed, or even the drug itself, as long as it's an illegal drug.

[00:55:41] Speaker 05:
But it has to be reasonably foreseeable.

[00:55:45] Speaker 05:
Right?

[00:55:45] Speaker 05:
I mean, that's, that's, Pinkerton does kick in, in that situation, doesn't it?

[00:55:48] Speaker 00:
Well, no, because it wouldn't be, that, Pinkerton would be, if

[00:55:55] Speaker 00:
only if it's an additional crime, right?

[00:55:57] Speaker 00:
Not if it's the underlying conspiracy.

[00:55:58] Speaker 05:
I thought you were talking about responsibility for actions taken by co-conspirators.

[00:56:02] Speaker 00:
Isn't that... Then it would be.

[00:56:04] Speaker 00:
That's the... Yeah, but the conspiracy charge arises from the agreement.

[00:56:08] Speaker 02:
Yeah, yeah.

[00:56:09] Speaker 00:
Right?

[00:56:10] Speaker 02:
Oh, I didn't realize you were talking about the agreement.

[00:56:11] Speaker 02:
Yeah.

[00:56:12] Speaker 02:
So what is the evidence that when Woodruff and Stoddard joined the conspiracy, that they were joining a conspiracy that

[00:56:21] Speaker 02:
involve trading of more than 100 grams?

[00:56:23] Speaker 00:
Yeah, I think that, you know, the same arguments that the parties have been made this morning on page 66 of the government's brief, we, you know, set out the jury verdict form, and I think that the findings that the jury made that are subsets of the overall question

[00:56:41] Speaker 00:
do you find liability on conspiracy those subset questions are did they what you know what drug was it it was heroin how much 100 grams so I'm a little bit confused just where we are conceptual in the argument because as I understood the way this is laid out

[00:56:57] Speaker 05:
The difference between your approach and the defendant's approach is that under your approach, a defendant is held responsible for the drug quantity that's attributable to the conspiracy as a whole.

[00:57:11] Speaker 05:
Correct.

[00:57:11] Speaker 05:
And it doesn't have to be tethered to the individual defendant.

[00:57:14] Speaker 05:
Now, if you look at the other approach, which is that it has to be tethered to the individual defendant, there's two ways in which that can happen.

[00:57:19] Speaker 05:
One is Pinkerton, so our Pinkerton concept.

[00:57:22] Speaker 05:
So you say something that's reasonably foreseeable.

[00:57:24] Speaker 05:
And the other is you look at the scope of the agreement

[00:57:26] Speaker 05:
that the defendant himself entered into.

[00:57:29] Speaker 05:
And with respect to that, if the quantity exceeds the amount, then of course the defendant's on the hook for that.

[00:57:34] Speaker 05:
Is that what you're talking about?

[00:57:35] Speaker 00:
Well, I took the court's question to be the latter.

[00:57:39] Speaker 00:
Was there evidence here of an agreement to distribute a certain quantity of drugs?

[00:57:44] Speaker 00:
So I was responding to that.

[00:57:46] Speaker 00:
That may not have been the question, but that was the question I was trying to respond to.

[00:57:50] Speaker 05:
And when you're responding to that question, are you saying that therefore

[00:57:55] Speaker 05:
We don't even get to the question that divides you and the defendants.

[00:57:58] Speaker 00:
I guess I took the court to be suggesting that earlier.

[00:58:02] Speaker 05:
OK, yeah, I didn't understand that.

[00:58:04] Speaker 00:
OK, so I may have misunderstood the question and the subsequent problem.

[00:58:09] Speaker 05:
And I didn't understand you to be making that argument in your brief either.

[00:58:11] Speaker 00:
No, no, no, that's not.

[00:58:14] Speaker 05:
Your argument is that we don't care about what's attributable to the individual defendant.

[00:58:19] Speaker 05:
It doesn't matter as long as the conspiracy as a whole was responsible for 100 or more.

[00:58:24] Speaker 00:
That's right, and that's what the district court found here, that was the decision of the district court, that it didn't really matter, and the parties continued to argue about who was responsible for what, and the district court said that doesn't matter.

[00:58:36] Speaker 05:
And that's the position you're defending, so it doesn't matter what the, you're not saying that when the defendants entered into the conspiracy, they knew that they involved 100 or more by virtue of the agreement itself, that we wouldn't

[00:58:45] Speaker 00:
I would agree that is not a load-bearing part of our merits argument.

[00:58:51] Speaker 00:
But I understood the court to be saying, hey, look, by the way, you have a jury finding here of 100 grams.

[00:59:00] Speaker 00:
Because the charge, the indictment is 100 grams, and the jury verdict form is 100 grams.

[00:59:06] Speaker 05:
True, but as we understand the verdict form, that's what the conspiracy as a whole involved.

[00:59:11] Speaker 05:
Right.

[00:59:11] Speaker 05:
Yeah, that's how you understand it too.

[00:59:13] Speaker 00:
Yeah, although you can read it, I think it can be read differently.

[00:59:17] Speaker 00:
I think it can be read that the agreement was... But you're not making that, I didn't agree.

[00:59:22] Speaker 00:
We didn't... You didn't make that argument in brief, so we shouldn't... Right.

[00:59:25] Speaker 00:
Okay.

[00:59:26] Speaker 00:
Right.

[00:59:27] Speaker 00:
I just, I thought that that's what the court was suggesting.

[00:59:29] Speaker 00:
Okay.

[00:59:32] Speaker 02:
Great.

[00:59:32] Speaker 02:
We have the government's argument.

[00:59:33] Speaker 00:
OK.

[00:59:34] Speaker 00:
Thank you very much.

[00:59:34] Speaker 00:
I urge the court to affirm the judgment of the district court.

[00:59:37] Speaker 00:
Thank you.

[00:59:39] Speaker 02:
Mr. Wilcox, how much time do you think you need to rebut?

[00:59:43] Speaker 01:
Just to rebut.

[00:59:45] Speaker 01:
Can I try for five minutes, and hopefully I can do it in less?

[00:59:49] Speaker 01:
We'll give you four.

[00:59:51] Speaker 01:
Perfect.

[00:59:51] Speaker 01:
Thank you, Judge Griffin.

[00:59:54] Speaker 01:
Aim high and hope for the best.

[00:59:56] Speaker 01:
So I'll take the arguments in reverse order, starting with where the government left off.

[01:00:03] Speaker 01:
The first point is, as you said, this is really a one-case wonder, their entire argument that they're making here.

[01:00:10] Speaker 01:
Even in the Sixth Circuit, in the en banc briefing there, when they asked the Sixth Circuit not to take the case, they said, oh, this is an unimportant issue because DOJ policy is that we do the individual approach we're advocating here.

[01:00:21] Speaker 01:
Please don't take it en banc.

[01:00:22] Speaker 01:
Now, the Sixth Circuit disagreed, but that just again shows that the government everywhere, except for in this case,

[01:00:27] Speaker 01:
agrees with the approach that we're advocating for here.

[01:00:30] Speaker 01:
And that's because it's completely consistent with the background principles.

[01:00:33] Speaker 01:
That's interesting, but it's not dispositive, right?

[01:00:35] Speaker 01:
No, I completely agree with that, Judge Griffith, but I think it's illustrative that the reason why they're taking that position everywhere is because it's completely consistent with the background principles of conspiratorial liability that apply in cases across the board.

[01:00:49] Speaker 01:
And as the Supreme Court has said in cases like Lexmark and B&B Hardware and Astoria Federal Savings, when a statute

[01:00:56] Speaker 01:
doesn't specifically address an issue, courts can presume that Congress legislated against the backdrop of what the common law rule is.

[01:01:04] Speaker 01:
And here that common law rule is the approach that we've adopted and all the other circuits have adopted.

[01:01:09] Speaker 01:
And I'll also just touch briefly on harmlessness.

[01:01:11] Speaker 01:
I think everyone agrees that for Stoddard, that if you agree with our approach, the air here was not harmless.

[01:01:17] Speaker 01:
For Woodruff, the air still is not harmless.

[01:01:19] Speaker 01:
The only evidence linking him to 100 grams or more of heroin was the testimony of Washington, whose testimony has significant credibility findings.

[01:01:28] Speaker 01:
There was no physical evidence actually linking him.

[01:01:32] Speaker 01:
Concluding that maybe the jury didn't credit Washington's testimony wouldn't be inconsistent with their verdict, because there was evidence from people like Sandra Settle, as we discussed towards the end of our brief, that talked about how they, in the course of their conspiratorial agreement, in which they never talked or dealt with Woodruff or Stoddard, personally dealt with more than 100 grams.

[01:01:51] Speaker 01:
So the jury could have gotten to 100 grams for the conspiracy as a whole without finding that Woodruff himself was actually involved with 100 grams or more.

[01:01:58] Speaker 01:
Turning to the arms career criminal issue, just to touch briefly on that,

[01:02:01] Speaker 01:
Once again, that's not a harmlessness issue, but the government keeps on saying that the district court actually said that the issue made no difference, but you look at A741 where it actually touches on this, what the district court says at lines 11 and 12 is, for the record, I would impose the same sentence if no five-year mandatory minimum had applied here.

[01:02:20] Speaker 01:
So it's not saying anything about the armed career criminal issue.

[01:02:23] Speaker 01:
And even with respect to the mandatory minimum, it's making that statement because it misunderstood that under the guidelines, it has to make individual findings about drug quantity as we talk about in our brief.

[01:02:35] Speaker 01:
Turning to the money laundering very, very quickly.

[01:02:39] Speaker 01:
I think you're exactly right, Judge Wilkins, that the jury's finding of acquittal here on the drug conspiracy is very hard to reconcile with a find that there was sufficient evidence for the promotion prong of money laundering here.

[01:02:52] Speaker 01:
As the government said, its entire theory for the drug conspiracy was, well, he helped purchase this SUV to further the aims of the conspiracy, and the jury disagreed with that finding.

[01:03:00] Speaker 01:
And the innocent explanation the government tries to swat away here came from its own witness who was cooperating with the government

[01:03:07] Speaker 01:
And most of the testimony he's pointing to either has no specific link to the car, like the fact that apparently Kabul may have been purchasing some marijuana for personal use or may have been doing other things with Washington, and also touches generally on just putting money towards the car.

[01:03:22] Speaker 01:
He's saying things like, things are going well, so I'm going to have enough money to make the payment.

[01:03:26] Speaker 01:
That just shows that he's spending, that at most shows he's spending the illegal proceeds here, which this court has made clear is not money laundering.

[01:03:33] Speaker 01:
Spending the illegal proceeds by themselves does not amount to money laundering.

[01:03:36] Speaker 01:
And then finally, just touching really quickly on the Rule 609 issue, we think that the government waived this argument, and certainly the type of argument the government can waive.

[01:03:45] Speaker 01:
This is not a jurisdictional issue.

[01:03:47] Speaker 01:
This is just an evidentiary objection, like any other evidentiary objection, and any other issue the government can waive.

[01:03:52] Speaker 01:
And on harmlessness, just to make my very final point, Judge Griffith,

[01:03:56] Speaker 01:
It's not harmless.

[01:03:58] Speaker 01:
Unlike in the Supreme Court case, there was extensive evidence that Woodruff wanted to testify in his own defense.

[01:04:04] Speaker 01:
There's very weak evidence that he was involved in the conspiracy entirely on Washington.

[01:04:10] Speaker 01:
And Woodruff would have been able to rebut that testimony and would have been able to put on evidence of his own defense.

[01:04:14] Speaker 01:
And as this court said in the Shaheen case, whenever a district court ruling interferes with the defendant's opportunity to put on the defense, that air is not harmless.

[01:04:23] Speaker 01:
So we'd ask you to reverse the convictions here or at a minimum remand for resentencing for both Stoddard and Woodruff.

[01:04:29] Speaker 01:
Thank you.

[01:04:30] Speaker 01:
Thank you very much.

[01:04:30] Speaker 02:
The case is submitted.

[01:04:32] Speaker 02:
Mr. Wilcox, you were appointed by the court to represent the appellants in these cases and we thank you for your assistance.

[01:04:38] Speaker 01:
Thank you, Your Honor.