[00:00:10] Speaker 00:
for the appellant, Ms.

[00:00:11] Speaker 00:
Annette for the appellee.

[00:00:16] Speaker 01:
Mr. Corker, and good morning.

[00:00:18] Speaker 04:
Good morning, Your Honor.

[00:00:20] Speaker 04:
May it please the Court?

[00:00:23] Speaker 04:
Judge Mehta has gave four reasons for attributing 100 grams of heroin to Mr. DuRet in this case.

[00:00:31] Speaker 04:
They are set out on pages 332 through 335 of the appendix, and I've provided copies of them, of that appendix to the court and to counsel.

[00:00:41] Speaker 04:
I will address them in turn.

[00:00:44] Speaker 04:
First, according to Judge Bethe, the supposed 100 grams Lawson stash directs car wash, plus the extra 50 grams of cutting agents, supposedly added by Lawson,

[00:00:59] Speaker 04:
Together made 139 grams of mixture containing heroin.

[00:01:06] Speaker 04:
As to what has shown up, we hope, that doesn't work based on the record.

[00:01:12] Speaker 04:
Something like 100 grams, I'm quoting the record here, is not proof beyond a reasonable doubt of 100 grams.

[00:01:20] Speaker 04:
And cut, added not by Lawson, but by Weeks, who was an FBI cooperator, does not count as the amount involved in conspiracy.

[00:01:31] Speaker 04:
Second, at page 333, lines 20 to 21 in a single sentence, the court says the jury simply could have attributed the entire kilogram to Durant.

[00:01:46] Speaker 04:
Based on the evidence here, that does not meet the reasonable doubt standard.

[00:01:50] Speaker 04:
The record shows the following.

[00:01:52] Speaker 04:
First, the June transaction was the first and only transaction in which Lawson conspired with Direct to distribute heroin.

[00:02:02] Speaker 04:
Two, there was no evidence that Direct actually knew anything about Lawson's additional 900 grams or any additional quantity of heroin.

[00:02:12] Speaker 04:
Three,

[00:02:13] Speaker 04:
All of the amounts of heroin weighed by the FBI in this case were less than 100 grams.

[00:02:19] Speaker 01:
But didn't Lawson give Duret 100 grams to store in the car wash?

[00:02:26] Speaker 04:
He said, I think it was something like 100 grams or something.

[00:02:32] Speaker 04:
Something like 100 grams, I submit respectfully, Your Honor, is not proof beyond a reasonable doubt of 100 grams.

[00:02:39] Speaker 03:
So is that purely because he said something like, because suppose he said something like 150?

[00:02:45] Speaker 03:
That would have gotten, that would have been helpful to get over 100 grams.

[00:02:51] Speaker 03:
Right, but is that really what it turns on, is that it's something like, and it happens to be right at the threshold?

[00:02:55] Speaker 03:
Because something like, I know your argument is that something like isn't exact, but it's, at what point do you get outside the range of something that the jury can rely on if you're in the vicinity anyway?

[00:03:15] Speaker 03:
Well, what if he said something like 101?

[00:03:17] Speaker 04:
I don't think that would make it.

[00:03:20] Speaker 04:
Right.

[00:03:22] Speaker 04:
Well, what he said was, I think I took off like 100 grams or something.

[00:03:31] Speaker 04:
And I think, I understand your question, but I,

[00:03:36] Speaker 04:
I'd say 150 at least.

[00:03:38] Speaker 03:
You think 150 is what?

[00:03:38] Speaker 03:
Okay.

[00:03:39] Speaker 03:
Okay.

[00:03:43] Speaker 04:
And as I said, well, as to the argument too, all the amounts weighed by the FBI in this case were less than 100 grams, so.

[00:03:50] Speaker 04:
On this, on the theory that this is adequate, if Lawson had bought 10 tons of heroin from Fausto and Mercedes, unknown to Durette, Durette could have been convicted of conspiring to distribute 10 tons of heroin.

[00:04:05] Speaker 04:
You've got to have some evidence in there that he has noticed some greater amount, and that I'd say was not true in this case.

[00:04:19] Speaker 04:
It should be noted the government never addresses this argument.

[00:04:24] Speaker 04:
In fact, it recognizes the argument and then specifically decides it isn't going to argue it.

[00:04:33] Speaker 04:
That is based on he could simply have attributed the entire, entire kilogram to a reasonably foreseen

[00:04:43] Speaker 04:
the extra kilogram of heroin.

[00:04:48] Speaker 04:
Instead, let me just add a little bit to this.

[00:04:53] Speaker 04:
The Supreme Court ruled and would be milliard that the 10th Circuit abused its discretion

[00:05:03] Speaker 04:
in ruling against Wood based on an argument that the government purposely decided to disregard.

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And that's the case here.

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The government purposely decided to disregard this basis for 100 grams of heroin.

[00:05:19] Speaker 04:
Instead of reasonable foreseeability, the government argues the juries could have found, based on the evidence, that DuRet had actual knowledge of the extra kilogram.

[00:05:29] Speaker 04:
had actual knowledge of what Lawson had bought because Weeks knew about it.

[00:05:34] Speaker 04:
However, because two of your best friends and fellow dope dealers know that one of those two friends has a hologram of heroin doesn't mean you know it beyond a reasonable doubt.

[00:05:46] Speaker 03:
So Weeks testified that Lawson and your client, DeRette, were good friends and they made purchases together, right?

[00:05:55] Speaker 03:
Say it again, Your Honor.

[00:05:56] Speaker 03:
Did Weeks testify that Lawson and your client were good friends and that they made purchases together?

[00:06:03] Speaker 03:
I thought he did.

[00:06:04] Speaker 03:
Yeah, I think he did.

[00:06:06] Speaker 03:
I mean, there is evidence of that, anyway, in the record.

[00:06:08] Speaker 03:
Right.

[00:06:09] Speaker 03:
And so if we take your argument that like 100 doesn't quite, let's just suppose for argument purposes that we accept your submission that like 100 isn't enough to prove 100 beyond a reasonable doubt.

[00:06:22] Speaker 03:
But like 100 is something in the neighborhood of 100.

[00:06:26] Speaker 03:
And then if there's also a testimony that says that they were good friends and they made purchases of drugs together, then it doesn't seem like you need all that much more to get you over 100.

[00:06:41] Speaker 04:
Let's see.

[00:06:41] Speaker 04:
Where am I?

[00:06:48] Speaker 04:
Well.

[00:06:50] Speaker 04:
Beyond a reasonable doubt, I guess my position has to be that it isn't.

[00:06:54] Speaker 03:
That would have to be your position.

[00:06:56] Speaker 03:
I guess I'm just wondering why not.

[00:07:02] Speaker 04:
Well, it just seems to me, I mean, I think this is really kind of a, I mean, the argument that by itself, that just because you have two good friends and you guys have all done dope together, and one of them has a kilogram of heroin,

[00:07:19] Speaker 04:
The idea that that means that you know that one of them has a kilogram of heroin is absurd.

[00:07:25] Speaker 04:
I mean, do you think dope healers tell each other all the dope they've got?

[00:07:30] Speaker 04:
I mean, they're all crooks.

[00:07:32] Speaker 03:
No, I don't know that you'd attribute the entire amount.

[00:07:36] Speaker 03:
I guess what I'm saying is we know that there's evidence that it's somewhere in the neighborhood of 100.

[00:07:41] Speaker 03:
And your argument is, well, somewhere in the neighborhood of 100 isn't 100.

[00:07:44] Speaker 03:
And I guess what I'm saying is, but there's other evidence that ties direct to some quantity of drugs.

[00:07:52] Speaker 03:
through his relationship with Lawson and through the testimony that Duret and Lawson purchased drugs together.

[00:07:56] Speaker 03:
So if you're in the neighborhood of 100 and then you have other evidence that ties him to somebody with whom he's purchasing drugs together, as long as the jury thinks that's some non-trivial amount, then that could be enough, the government argument goes, I think, to allow a jury to find beyond a reasonable doubt that your client was involved with more than 100.

[00:08:17] Speaker 03:
Well, I hope not.

[00:08:21] Speaker 04:
Third, at page 334, lines 3 to 10, Judge Mehta states that the court's decision in law may not require that the drug quantity itself be reasonable foreseeable to the defendant.

[00:08:33] Speaker 04:
Quote, he says, they quote, may only require that the government establish the acts and furtherance of the conspiracy be reasonably foreseeable to attribute the entire drug quantity to an individual co-conspirator.

[00:08:49] Speaker 04:
That is, again, if a defendant could have

[00:08:51] Speaker 04:
reasonably foreseen.

[00:08:54] Speaker 04:
Again, on this theory, if the defendant could reasonably foreseen that the person he bought the drugs from bought the drugs from someone else, whatever that amount was, then if in this case Lawson had bought 10 tons of heroin from Fossum and say that

[00:09:14] Speaker 04:
direct would have been responsible for 10 tons.

[00:09:17] Speaker 04:
Anyway, I don't think that's what law means.

[00:09:19] Speaker 04:
Attribution means not only a reasonable foreseeable quantity, conspiracy, but a quantity reasonable foreseeable to the defendant.

[00:09:27] Speaker 04:
And in law, when the court found that there was enough evidence of 100, whatever, I think it was 50 grams in that case, the only

[00:09:38] Speaker 04:
dealt with stuff that law personally participated.

[00:09:41] Speaker 04:
In any event, if that's what law means, it was overruled by its daughter.

[00:09:46] Speaker 04:
All right, fourth, and this is the tough one, the court rules that Lawson could have reasonably foreseen that the 100 grams he received from Lesson was part of a larger drug conspiracy because greater abouts had been involved in the April sales in which Lawson was not involved.

[00:10:03] Speaker 04:
But could he have done so beyond a reasonable doubt, given Barrett had no actual knowledge of the actual amount here.

[00:10:11] Speaker 04:
This was the first time he joined a heroin transaction with Lawson, and the amounts in question is weighed by the FBI, in this case, were less than 100 grams.

[00:10:20] Speaker 04:
To conclude, one, a case where the government has prevailed, given evidence this week, and purposeful failure to argue, but I haven't found one.

[00:10:30] Speaker 04:
And given at least three of the grounds on the basis of which the district will rule tomorrow, we respectfully submit deficient.

[00:10:37] Speaker 04:
Judge Mehta might well on remand come into a different conclusion if he had to rely only on the fourth of his four reasons.

[00:10:45] Speaker 01:
All right.

[00:10:45] Speaker 01:
Thank you.

[00:10:46] Speaker 04:
Thank you, Your Honor.

[00:10:59] Speaker 02:
Ms.

[00:10:59] Speaker 02:
Amit, good morning.

[00:11:00] Speaker 02:
Good morning.

[00:11:00] Speaker 02:
May it please the Court, Christina Amen, on behalf of the United States.

[00:11:04] Speaker 02:
In this case, the evidence was sufficient to support the jury's finding and the trial court's finding that the conspiracy that appellant was involved in involved 100 grams or more of heroin.

[00:11:18] Speaker 02:
And first, I'd like to address the discussion of Mr. Lawson's testimony, because it is true that, as appellant said here,

[00:11:28] Speaker 02:
Lawson does use the verbal tick like when he's discussing some of the drug quantities here.

[00:11:36] Speaker 02:
But if this court reviews his entire testimony, he specifically does say, when asked on page 13 of the March 13 morning transcript, how much

[00:11:47] Speaker 02:
did you give to a pellet to store at the car wash as 100 grams with no like there?

[00:11:54] Speaker 02:
So there are some likes, but there's one specific answer without a like.

[00:11:59] Speaker 02:
And moreover, on cross-examination, when he's asked, so you're uncertain about how much you gave him, he says, no, I'm not uncertain.

[00:12:08] Speaker 02:
So I think in the light most favorable to the government,

[00:12:12] Speaker 02:
I don't think that there's sufficient grounds to reverse this conviction and sentence based on the one word, like, that Lawson uses sometimes to describe this hundred grams.

[00:12:28] Speaker 02:
He says specifically that he gave 100 grams to a pellet to store for him at the car wash.

[00:12:35] Speaker 02:
And given the other testimony that they were good friends and partners in the drug trade, that alone answers the question of whether 100 grams or more were involved.

[00:12:48] Speaker 02:
Turning to appellants, other.

[00:12:51] Speaker 03:
So before you turn to that, can I just ask you, if the only evidence were a statement that had the word like in it, would you be making the argument that that's enough for a jury to find beyond reasonable doubt that the amount was satisfied, even though it was by the witnesses own testimony and approximation?

[00:13:09] Speaker 02:
Your Honor, I think that would be a more difficult case, but I think if you look at Lawson's entire testimony, he repeatedly uses that word, and I think it would be, and so the answer to the court's question is yes, I would, because it would be the same thing as if the court said if he testified and repeatedly said um or you know, and I think that all three of you have seen enough people talking to you using tics like um and you know and like,

[00:13:39] Speaker 02:
that that

[00:13:42] Speaker 02:
in and of itself doesn't cast doubt on what the remaining, what the next part of the answer is.

[00:13:48] Speaker 02:
And it seems as though, even though he uses the word like, he does not equivocate on the amounts.

[00:13:53] Speaker 02:
And as I say, Defense had the opportunity to ask him.

[00:13:57] Speaker 02:
And he said no.

[00:13:57] Speaker 02:
He was not uncertain about how much there was.

[00:14:00] Speaker 02:
And I think if anything, that overcomes the question of whether the like defeats the finding of 100 grams or more.

[00:14:11] Speaker 03:
Now instead of like, if he said about, then you couldn't say that like is a verbal take.

[00:14:18] Speaker 02:
I think that would be a much more difficult question.

[00:14:21] Speaker 02:
But again, he didn't say that.

[00:14:23] Speaker 02:
He said like.

[00:14:24] Speaker 02:
And I think all of us have been on TV, movies, social media, enough to know a lot of people say like when they don't mean to equivocate.

[00:14:33] Speaker 02:
But even if he had meant to equivocate, or even if that was a possibility, it's refuted by his later answer when he's definite and by his answer that he was not uncertain.

[00:14:44] Speaker 02:
And I think those two things can allay any question

[00:14:48] Speaker 02:
that the word like somehow defeats the jury's and the trial court's conclusion having listened to this entire testimony that 100 grams were left at that car wash to be stored.

[00:15:01] Speaker 02:
There are two other pathways that can be taken to also reach the conclusion of 100 grams or more.

[00:15:07] Speaker 02:
And as we say,

[00:15:10] Speaker 02:
The testimony of Lawson that he gave appellant 100 grams or more to store resolves this.

[00:15:15] Speaker 02:
There's no more conclusion needed to be made.

[00:15:19] Speaker 02:
But the other alternative pathway that the court relied on was the idea that appellant was also involved in the sale of half of that 100 grams that he took and sold along with Lawson two weeks.

[00:15:36] Speaker 02:
All of those three of them agreed that there was going to be some chicanery involved in that sale, not with respect to what Lawson and Appellant were doing, but with respect to what Weeks was going to do to his downstream buyer.

[00:15:50] Speaker 02:
And so, therefore, they negotiated and participated in a videotape sale in which they talk about a 50 of heroin, and that was half of what that hundred grams

[00:16:03] Speaker 02:
And the 50 was sold to Weeks along with the bag of cut in one bag for him to mix up.

[00:16:10] Speaker 02:
And we would submit that even though Weeks was the one who mixed the cut with that heroin, that the court can consider the fact that that was a mixture or substance containing heroin that was 89 grams.

[00:16:25] Speaker 02:
And that combined with the 50 that was left back,

[00:16:28] Speaker 02:
at the car wash exceeds 100 grams.

[00:16:31] Speaker 02:
So again, that's another pathway, not quite as strong as the pathway where Lawson specifically says there were 100 there, but it is another way to get to 100 grams or more.

[00:16:42] Speaker 02:
And finally, turning to the trial court's finding that it was supportable that loss or that appellant could have known about the other 900 grams in the kilogram,

[00:16:57] Speaker 02:
That is also supportable by the record in this case.

[00:17:00] Speaker 02:
There was testimony that these two, that Appellant and Lawson, were partners.

[00:17:05] Speaker 02:
They were good friends.

[00:17:06] Speaker 02:
They had dealt drugs together for years.

[00:17:09] Speaker 02:
That Appellant had participated in his drug dealing activities.

[00:17:12] Speaker 02:
And this isn't the type of thing that counsel was talking about during his argument where somehow Lawson just ends up with some heroin and says, oh, I have some heroin for you.

[00:17:25] Speaker 02:
This was something where Lawson actually stole the heroin from other co-conspirators from California and was willing to tell weeks about it, who was a buyer who had a much less close relationship with him.

[00:17:37] Speaker 02:
And from that, in the light most favorable to the government, it is reasonable to infer

[00:17:43] Speaker 02:
that he might also have told a pellet that this hundred grams that he gave him to hide in the car wash had come from a larger shipment of heroin that he had stolen from these California distributors.

[00:18:00] Speaker 02:
with regard to counsel's question about, well, suppose there had been 10 tons in the shipment.

[00:18:06] Speaker 02:
There was no charge of 10 tons.

[00:18:08] Speaker 02:
There was no charge of 1,000 grams of heroin here.

[00:18:10] Speaker 02:
This was 100 grams or more.

[00:18:12] Speaker 02:
And so if all he had to do was say, I stole some heroin from this guy, and I'm giving you part of it, this 100 grams, I'm giving you part of it, and that would also support the finding of 100 grams or more.

[00:18:26] Speaker 02:
So for those reasons,

[00:18:27] Speaker 02:
We would submit that the evidence here was more than sufficient to support the trial court's conclusion that supporting the jury's finding that 100 grams or more was involved in this conspiracy and that appellant's sentence was lawful.

[00:18:42] Speaker 02:
And if there are no further questions, we would ask that the judgment of the district court be affirmed.

[00:18:46] Speaker 01:
All right, thank you.

[00:18:49] Speaker 01:
Does Mr. Corcoran have any time?

[00:18:52] Speaker 01:
Okay, why don't you take a minute?

[00:18:59] Speaker 04:
First of all, as to the testimony about 100 grams, what he actually said was, and this is the most detailed answer he gave, the most detailed answer.

[00:19:10] Speaker 04:
He said, quote, I think I took off like 100 grams or something.

[00:19:18] Speaker 04:
That's at the joint appendix of page 295.

[00:19:22] Speaker 04:
And my second point, and I hope I won't exceed 100.

[00:19:25] Speaker 01:
Is that the same as page 13 of the transcript?

[00:19:30] Speaker 04:
It's a joint appendix 295.

[00:19:36] Speaker 01:
Okay.

[00:19:37] Speaker 01:
Do you know if that's page 13 of the transcript, if that's the same?

[00:19:42] Speaker 04:
I don't know, actually.

[00:19:44] Speaker 04:
And then my second point is simply that I know to hear the government in the Court of Appeals

[00:19:51] Speaker 04:
has also passed up on the two arguments that Judge Mehta relied on, his second and fourth arguments.

[00:20:00] Speaker 04:
And so the government is now stuck with the first argument and the argument that the two, just because you have two friends who have a kilogram of heroin, you know about it.

[00:20:13] Speaker 04:
Thanks very much.

[00:20:14] Speaker 01:
All right, Mr. Corcoran, you were appointed by the court to represent your client, and we thank you for your able assistance.

[00:20:22] Speaker 04:
Thank you, Your Honor.