[00:00:00] Speaker 03: Case number 19-3045, United States of America versus Manuel de Reynoso at balance. [00:00:07] Speaker 03: Mr. Mammon for the imbalance, Mr. Goodhand for the appellate. [00:00:12] Speaker 00: Good morning, counsel. [00:00:13] Speaker 00: Mr. Mammon, when you're ready, please proceed. [00:00:16] Speaker 03: Thank you, Your Honor. [00:00:17] Speaker 03: Good morning, Your Honors, and may it please the court. [00:00:20] Speaker 03: I am Nathan Mammon appearing on behalf of Manuel Reynoso. [00:00:24] Speaker 03: Well, our briefs identify multiple errors that occurred in Mr Reynoso's case. [00:00:27] Speaker 03: I'd like today to focus on two issues that we submit require a new trial. [00:00:32] Speaker 03: First, that the district court failed to instruct the jury that it must find Reynoso knew he had the status of having been convicted of a crime, punishment by more than a year in prison. [00:00:42] Speaker 03: And second, that the district court erred by allowing a key defense witness, Val Rodriguez, to refuse to provide testimony for Reynoso in violation of Mr Reynoso's Sixth Amendment right. [00:00:54] Speaker 03: First, the jury was not to increase the volume a little bit for Mr Manning. [00:01:01] Speaker 03: Thank you. [00:01:01] Speaker 03: The jury was not instructed that it must find Renoso knew he could not possess a firearm as the Supreme Court held was required in rehab versus United States in 2019. [00:01:13] Speaker 03: Rehab was decided after Mr Renoso's trial and plane air review applies here. [00:01:20] Speaker 03: The government does not dispute that the first three prongs of plain error review are met. [00:01:25] Speaker 03: The only question before the court is whether the court should recognize and grant relief for the error that it affects the fairness of the proceeding. [00:01:34] Speaker 03: And we submit it does. [00:01:36] Speaker 03: This case is different in one key respect from nearly all the cases that the government cites where the courts concluded the rehab error did not affect the fairness of the trial. [00:01:46] Speaker 01: Before you get to the difference, [00:01:48] Speaker 01: All the cases the government cites, other circuits have decided there did have to be a showing of prejudice, essentially, didn't they? [00:01:58] Speaker 03: Other circuits have held, in the published decisions, there was actually, right in the time of the reply brief, a second circuit unpublished decision that found that there was, similar to these facts, that there was not prejudice, or there was no showing that the defendant would have known. [00:02:15] Speaker 03: But the other cases that are cited in the briefs [00:02:18] Speaker 03: The courts of appeals have said that there must be some showing or needs to be some evidence that the defendant will look to the record and see if the defendant should have known that he had been serving or I think a victim of a crime carrying more than a year of prison. [00:02:34] Speaker 03: But in those cases, I think the key fact from those cases is that in all those cases, except one that I'm aware of, the defendant actually had served multiple years in prison. [00:02:45] Speaker 01: Here the defendant had been sentenced to two five-year terms, had he not? [00:02:53] Speaker 03: Two essentially five-year terms. [00:02:55] Speaker 03: He had been sentenced both, one was suspended entirely, one was suspended to be less than a year, so he served some months in prison. [00:03:03] Speaker 01: But he was, but he was sentenced, he was [00:03:08] Speaker 01: in court and sentenced to more than a year. [00:03:12] Speaker 01: It was suspended, but he was in fact sentenced to more than a year, right? [00:03:16] Speaker 03: He did receive a sentence, a suspended sentence, but sentenced to more than a year. [00:03:21] Speaker 03: But we don't have this in case, which also happens in other cases, where there's evidence of what was said at the plea colloquy, what was required before the state courts could accept the guilty plea. [00:03:36] Speaker 01: We know that a judgment was entered [00:03:40] Speaker 01: of more than a year sentence, right? [00:03:43] Speaker 03: We do know that a judgment was entered of more than a year, but again, part of the sentence or majority of the sentence was suspended. [00:03:51] Speaker 03: Thank you. [00:03:54] Speaker 03: But we don't know what was told to Mr. Reynoso, what he was instructed as far as accepting the guilty plea that he understood the ramifications. [00:04:03] Speaker 03: Again, facts that if the court looks at the other courts of appeals, those are facts that the other courts of appeals found [00:04:09] Speaker 03: significant in not recognizing the rehab error, the plain error of rehab. [00:04:16] Speaker 03: And so we submit on this record where we don't know, we know that he didn't serve more than a year in prison. [00:04:23] Speaker 03: We don't have any evidence from any plea colloquies, any other statements on the record indicate that Mr. Reynoso knew he had been convicted of a crime that carried a sentence more than a year when he practically had not spent a year in jail. [00:04:37] Speaker 03: that this record does not conclusively show that he knew his status was such that he could not possess the firearm. [00:04:46] Speaker 00: Can I ask you a question about this? [00:04:48] Speaker 00: I know you have your other issue you want to talk about too, but on this one, you framed it in part as a plain error question along the lines of what you just articulated. [00:04:56] Speaker 00: And then you also have a sufficiency claim that's associated with this. [00:05:00] Speaker 00: And on the sufficiency claim, [00:05:02] Speaker 00: it just seems a little bit odd to be talking about sufficiency when we're talking about an element that wasn't instructed to begin with because nobody even knew that it was an element at the time. [00:05:10] Speaker 00: At least nobody involved in this case knew it was an element at the time. [00:05:14] Speaker 00: And so the Ninth Circuit has a decision that indicates that we don't think of that issue as a sufficiency issue because we base sufficiency analysis on the elements that were in fact given to the jury. [00:05:27] Speaker 00: And we ask whether the jury had sufficient evidence for which to find that the element was met. [00:05:31] Speaker 00: Here, you just can't even do that because nobody understood that Rahef was going to come down and require a finding by the jury of knowledge of felon status. [00:05:46] Speaker 03: I understand and I agree and I think the sufficiency point ties in with the rehab era point of that there was no evidence. [00:05:54] Speaker 03: If you look at the jury, if the court is constrained by what was the jury record, the trial record, [00:05:59] Speaker 03: So I know courts of appeals have, for the most part, concluded you could look beyond the record before the jury. [00:06:06] Speaker 03: But if you're constrained by what the record before the jury and determining whether you could conclude that he would have known of his status, that record, it's part of the plain air analysis as well, that there's insufficient evidence to conclude on that record that he would have known. [00:06:24] Speaker 00: Right. [00:06:24] Speaker 00: So I take your point that you would have a stronger argument if [00:06:29] Speaker 00: you're bound by the record that was submitted as opposed to whether you could look beyond the record. [00:06:34] Speaker 00: And let's just suppose, I know you disagree with this, but let's suppose for plain error purposes, we think you can look beyond the record and you can look to what the facts are in the world. [00:06:42] Speaker 00: And then for plain error purposes, that means you've taken into account some things that the jury wasn't confronted with. [00:06:47] Speaker 00: But for sufficiency purposes, you still can do that. [00:06:50] Speaker 00: And then so then you'd have your sufficiency claim, but in theory, but in fact, the sufficiency analysis seems [00:06:58] Speaker 00: like a mismatch here when you don't have a jury instructed on the element to begin with. [00:07:03] Speaker 00: Then it seems like you're back to plain error and you have your arguments on plain error. [00:07:06] Speaker 00: I'm not suggesting that you necessarily win or lose on those. [00:07:09] Speaker 00: I'm just wondering whether there's in fact a freestanding sufficiency claim that would give you the certainty of limiting things to the record presented to the jury when here we're not even really talking about the normal sufficiency rubric because the element was just never given to the jury. [00:07:27] Speaker 03: The your I think this they think I think they they they do dovetail together at some point and it comes down to the sufficiency to my point that the sufficiency claim. [00:07:38] Speaker 03: If the court is constrained by the record before the jury. [00:07:41] Speaker 03: I don't know if it matters, whether it's under plein air review or sufficiency, but it's it's an added sort of wrinkle on that question. [00:07:48] Speaker 03: of, you know, what the record, whether the court can conclude that there was evidence beyond a reasonable doubt based on evidence before the jury that he knew. [00:07:58] Speaker 00: Got it. [00:07:58] Speaker 00: So the way it sounds like the way you're conceiving this efficiency claim is it's piggybacking on the plain error claim, assuming that for plain error purposes, you're constrained to the record that was presented to the jury. [00:08:08] Speaker 03: Yeah, sure. [00:08:10] Speaker 03: Much better way of phrasing it. [00:08:11] Speaker 00: Thank you. [00:08:11] Speaker 00: Thank you for that clarification. [00:08:13] Speaker 03: If I could just say one quick minute on the Sixth Amendment issue, there was a witness, Val Rodriguez, who was undisputedly the key witness in this case, because I don't think there was any dispute that it was his gun, that he placed it in the car, and that he didn't tell Mr. Reynoso that he placed it in the car. [00:08:33] Speaker 01: What do you see is the effect of the stipulation below as to what the testimony would have been from Rodriguez? [00:08:41] Speaker 01: Well, the effect of the stipulation is, uh, Mr. Has this error, if any, been waived or forfeited by that? [00:08:48] Speaker 03: No, Your Honor. [00:08:49] Speaker 03: I don't believe that there has been waived or forfeited because Mr Reynoso made clear multiple times that he intended to call his subpoena. [00:08:57] Speaker 03: Mr Rodriguez, the district court and made clear that was pressuring or encouraging that the parties to reach a stipulation. [00:09:04] Speaker 03: And the key parts come at page 708 709 7 10 of the joint appendix. [00:09:09] Speaker 03: uh, where the district court said, Look, I think he's clearly going to assert the fifth. [00:09:14] Speaker 03: I think he has fifth amendment, uh, issues. [00:09:17] Speaker 03: Mr Rodriguez, fifth amendment issues with respect to cross examination questions and then posed it as well. [00:09:23] Speaker 03: Maybe you could get this evidence in through, uh, hearsay exception through, uh, testimony of a long form sponsors. [00:09:30] Speaker 03: At that point, Mr Ramosa's trial counsel is left with really no choice of he could, I mean, I guess he could put all his eggs in the color basket. [00:09:38] Speaker 03: and say, no, I want to call in this court and can refuse and conclude that Rodriguez can assert his privilege or he can accept the half loaf that he was offered at that time to stipulating to this testimony. [00:09:52] Speaker 03: And so I also believe that in the context of how this came about, Mr. Renoso certainly didn't say he was waiving his rights to challenge this issue. [00:10:03] Speaker 03: Uh, and in the context of how this came about, I don't believe that it clearly indicates that he had an affirmative waiver of this claim. [00:10:12] Speaker 00: So there's one question on that, uh, on that issue. [00:10:16] Speaker 00: There, there is this point at seven 20, the joint appendix where, um, the witness's counsel said, I just want to confirm with the court that it's all right for the witness to be excused and for me to be excused at this point. [00:10:27] Speaker 00: And, um, your client's counsel said it's fine with the defense, your honor. [00:10:34] Speaker 00: At that point, doesn't it seem like the defense counsel is saying that now that we have the stipulation, I'm fine with the defense as the council put it for the witness to be excused? [00:10:50] Speaker 03: Certainly it would be nice if we could have a clear objection on this point. [00:10:58] Speaker 03: But I think again, if the court looks at the context of how this came about, [00:11:01] Speaker 03: By that time, it was understood that Rodriguez would take the stand, assert his Fifth Amendment privilege. [00:11:07] Speaker 03: They'd agreed to a stipulation on Fifth Amendment privilege, and presumably he wouldn't testify. [00:11:13] Speaker 03: Law enforcement officers would testify. [00:11:15] Speaker 03: They agreed to a stipulation that would cover what the law enforcement officers would relay. [00:11:19] Speaker 03: And at that point, as Mr. Renison's trial counsel said, look, I don't have any, you know, there's no purpose of bringing him to the stand just to assert the right. [00:11:29] Speaker 01: Except that he might have been able to have, if he asserted the right, then there would have been an argument for admissible hearsay, wouldn't there not? [00:11:40] Speaker 01: At least an argument. [00:11:42] Speaker 03: That certainly was a discussion throughout. [00:11:44] Speaker 01: The government opposed that and said that- Now, you were not trial counsel, right? [00:11:49] Speaker 03: I was not trial counsel. [00:11:49] Speaker 01: Right. [00:11:50] Speaker 03: Okay. [00:11:53] Speaker 03: Thank you, ours. [00:11:54] Speaker 03: If no further questions, we'd ask that the court vacate and remand our new [00:11:59] Speaker 00: Thank you. [00:11:59] Speaker 00: We'll give you your time for rebuttal that you requested, too, Mr. Mammond. [00:12:01] Speaker 00: Thank you. [00:12:02] Speaker 00: We'll hear from the government now. [00:12:03] Speaker 00: Mr. Goodhand? [00:12:05] Speaker 02: Thank you, Your Honors. [00:12:06] Speaker 02: May it please the Court, David Goodhand for the United States. [00:12:10] Speaker 02: Taking the issues raised by the defendant in reverse order, turning first to the Fifth Amendment claim. [00:12:17] Speaker 02: The government believes the record demonstrates a waiver here. [00:12:23] Speaker 02: This was a knowing waiver. [00:12:24] Speaker 02: It was a voluntary waiver. [00:12:26] Speaker 02: Turning first to the question of [00:12:28] Speaker 02: I know my opponent has suggested the district court insisted that he accept the stipulation. [00:12:36] Speaker 02: The record bespeaks the opposite. [00:12:39] Speaker 02: The district court twice asked, emphasis on asked, if the parties had talked about a stipulation. [00:12:47] Speaker 02: The defendant twice indicated he would be, quote, glad to, close quote, to consider a stipulation [00:12:55] Speaker 02: And then the defendant even set the terms of the stipulation by articulating the material facts that he wanted in the stipulation. [00:13:04] Speaker 02: And then this is at JA 710, excuse me, he said, as long as we are able to get that information before the jury, we would be fine. [00:13:15] Speaker 02: And then the court adjourned the proceedings so the parties could discuss this. [00:13:20] Speaker 02: The parties came back. [00:13:21] Speaker 02: the defendant declared, we do have an agreement and principle about a stipulation. [00:13:26] Speaker 02: That's a JA-717. [00:13:28] Speaker 02: So that's sort of the voluntary prong of waiver. [00:13:31] Speaker 02: The knowing prong that I know, again, my opponent has suggested was missing here. [00:13:37] Speaker 02: I think he has phrased it as the stipulation wasn't necessarily conditioned on a waiver of testimony. [00:13:43] Speaker 02: And again, the government would submit that the record bespeaks the opposite, in particular, a JA-708. [00:13:50] Speaker 02: The court asked, have you conferred, this is a quote, have you conferred about a stipulation as opposed to testimony, close quote. [00:14:00] Speaker 02: The court also asked, in order to avoid the appellate issue, have you conferred about a stipulation? [00:14:08] Speaker 02: Those are both at JA-708. [00:14:10] Speaker 02: So to the extent that [00:14:12] Speaker 02: There's knowledge about both, I'm taking the stipulation in lieu of testimony. [00:14:18] Speaker 02: That's answered by the JA-708 site. [00:14:22] Speaker 02: There's also even an indication that the defendant should have understood that he couldn't be doing what he's doing now, which is raising a series of claims relating to decisions and inquiries that the district court never had to make because of the stipulation. [00:14:39] Speaker 02: That is, [00:14:40] Speaker 02: To avoid the appellate issue, the court said, have you talked about a stipulation? [00:14:46] Speaker 02: And the defendant agreed to that. [00:14:49] Speaker 02: I would suggest, look, we don't lightly invoke waiver. [00:14:54] Speaker 02: We understand that means that court, that cuts off this court's consideration of the error as opposed to a forfeited claim. [00:15:02] Speaker 02: So we don't lightly go down this road, but I would suggest this is a good case for adhering to the waiver and enforcing it because the defendant, by all accounts, [00:15:14] Speaker 02: Mr. Rodriguez was actually in the courthouse. [00:15:17] Speaker 02: He was apparently in the hallway and the defendant never pursued whether or not he was indeed invoking. [00:15:25] Speaker 02: He never pursued a question by question inquiry about the scope of the privilege that assuming it was invoked. [00:15:33] Speaker 02: He never asked [00:15:34] Speaker 02: the court to do the waiver analysis once that had been discussed. [00:15:40] Speaker 02: And finally, he never, of course, asked the court to conduct the Pardo balancing, which he says was erroneous. [00:15:46] Speaker 02: So again, what we have here is this is why you have waiver. [00:15:50] Speaker 02: The defendant struck a pretty good bargain with the government. [00:15:55] Speaker 02: The government gave up its cross-examination rights. [00:15:57] Speaker 02: He got in the statements of Rodriguez, and he put them before the jury in his closing argument. [00:16:03] Speaker 02: So in that respect, we think this is a good vehicle for enforcing the waiver that we have here, which was both knowing and voluntary. [00:16:12] Speaker 00: Before you go to your second issue, just one question on this. [00:16:14] Speaker 00: There's nothing conceptually implausible about both taking the stipulation and also continuing to want the witness to testify. [00:16:29] Speaker 00: In theory, a defense counsel could certainly do that. [00:16:31] Speaker 00: They could say, look, [00:16:33] Speaker 00: I get it. [00:16:34] Speaker 00: I mean, it sounds to me like I may not get this testimony. [00:16:36] Speaker 00: So sure, I'll take the, I'll take the stipulation because that's all I can get, but I just want to make sure that everybody understands. [00:16:41] Speaker 00: I'd rather have the witness. [00:16:44] Speaker 02: I think that's, I don't disagree with that for one moment, but what we have here is, is, is not that caveat. [00:16:50] Speaker 02: What we have here is the district court saying we could resolve this with a stipulation as opposed to testimony. [00:16:56] Speaker 02: And the defendant agreeing to that. [00:16:58] Speaker 02: And at the site that was raised when my opponent was at the podium, the defendant actually agreed to release the witness. [00:17:09] Speaker 02: So I don't disagree with the notion there's not an internal conflict there. [00:17:13] Speaker 02: But on this record, what we have is a fairly significant, robust waiver. [00:17:18] Speaker 02: OK. [00:17:21] Speaker 02: Turning to the Rahef issue, a couple of things first before I get into my argument. [00:17:27] Speaker 02: I would note that in the reply brief, the defendant has cited on several occasions the Fourth Circuit's decision in Medley. [00:17:36] Speaker 02: I just wanted to make sure that the court understood that on November 12th, the Fourth Circuit vacated that decision, and they are now granted en banc review of the Medley decision. [00:17:47] Speaker 02: So a lot of the arguments relating to Rahef in the context of, you know, what kind of error was this? [00:17:55] Speaker 02: What prong of Olano do you access? [00:17:59] Speaker 02: The only authority that he has for a lot of these arguments is now rests on a vacated Fourth Circuit opinion. [00:18:06] Speaker 02: Number one, [00:18:07] Speaker 02: Number two, as to the instructional error, certainly it's the defendant's burden to demonstrate that this, by not recognizing the error, this would undermine the integrity and the public reputation of the judicial proceedings. [00:18:23] Speaker 02: As numerous courts have indicated, quite the opposite would be true if you were to recognize the error in a case like this. [00:18:34] Speaker 02: constrains the government before Rahaf. [00:18:37] Speaker 02: That is, the government could not put in evidence relating to the depth and the details and the nature of a prior conviction. [00:18:47] Speaker 02: So the government, of course, held its hand in this case before Rahaf based on Old Chief. [00:18:53] Speaker 02: Now, to come back around and suggest, well, the government didn't put into the record the requisite information, [00:19:00] Speaker 02: Well, that would undermine, the government submits, the public reputation of proceedings. [00:19:07] Speaker 02: And of course, this is easily resolved by just simply looking at the PSR here, where the defendant, three months before he was stopped on 17th Street, pled guilty to being a felon in possession in Maryland State Court. [00:19:23] Speaker 02: So the suggestion that there's somehow a miscarriage of justice because he didn't understand his status, I would suggest, [00:19:30] Speaker 02: is belied by both the prior plea to being a felon in possession, coupled with the course in 2011, he pled guilty, excuse me, he was sentenced to two five-year terms. [00:19:43] Speaker 02: I don't have any further. [00:19:45] Speaker 00: I have a question for you on this, which is related to the question I asked Mr. Mammon. [00:19:49] Speaker 00: So the opening brief frames kind of a related sufficiency challenge on this score. [00:19:56] Speaker 00: And the government didn't respond by saying that, [00:19:59] Speaker 00: there's no such thing as a sufficiency challenge in this context. [00:20:03] Speaker 00: And first, I'm wondering why, because it's not clear to me that a sufficiency challenge makes sense where you have a jury that was never instructed on an element. [00:20:13] Speaker 00: And second, if you think that there is the possibility of a sufficiency challenge, I'm not sure I understand how the evidence could be deemed sufficient here, because there was just no evidence introduced at trial about his knowledge. [00:20:26] Speaker 02: Turning to your honor's second point first, [00:20:28] Speaker 02: Several courts have been comfortable with the notion that the stipulation alone, if you're in the context of sufficiency, the only question is whether any reasonable juror could conclude that he had knowledge of his status. [00:20:45] Speaker 02: And at least a couple of courts have concluded that the stipulation itself would permit a reasonable juror to conclude that he had knowledge of his status. [00:20:54] Speaker 02: That is, [00:20:55] Speaker 02: he stipulated to the fact that he was indeed someone who had been convicted of a crime in prison by more than one year. [00:21:02] Speaker 00: I get that, but that would just mean that then Rahaf means nothing because the whole point of Rahaf, at least in the felon context, I understand that case came up with one of the other disabling statuses, but there's a difference between being a felon and knowing you're a felon. [00:21:18] Speaker 00: That's the premise of the entire decision. [00:21:20] Speaker 00: So what the stipulation tells you is that you were a felon. [00:21:23] Speaker 00: It doesn't tell you that, [00:21:24] Speaker 00: the person knew that they were a felon. [00:21:26] Speaker 00: Now, I take the point that most people, when they have a felony conviction, we can reliably assume that they know that they have a felony conviction. [00:21:32] Speaker 00: I understand that. [00:21:34] Speaker 00: But usually, that's proved somehow. [00:21:35] Speaker 00: There's evidence submitted that at least somebody testifies or there's something that comes up that says, look, and people know they have a felony conviction, right? [00:21:43] Speaker 00: Yes. [00:21:44] Speaker 00: But there's got to be some evidence that goes to that point, as opposed to the mere fact of having been a felon. [00:21:49] Speaker 00: Otherwise, that element, the whole point of Raheif in the felon context just goes away. [00:21:55] Speaker 02: I actually disagree with the court's suggestion to the extent that, again, we're in the sufficiency context. [00:22:00] Speaker 02: That's the template. [00:22:01] Speaker 02: Then the question becomes, is this a reasonable inference or is it based purely on speculation? [00:22:07] Speaker 02: And the question is, and the courts have said this, I'm sorry, I see my time's up. [00:22:11] Speaker 00: That's all right. [00:22:12] Speaker 00: You can go. [00:22:13] Speaker 02: The courts have said it is a reasonable inference from the admission that you are indeed a person who has been convicted of a crime that is a felony. [00:22:24] Speaker 02: It's a reasonable inference for a jury to conclude from that alone that you would be a person who would know about that. [00:22:30] Speaker 02: It's an earth-shattering notion that you would be a person who had been convicted of a felony and not know it. [00:22:36] Speaker 00: So do you think that it's a separate element to show that the defendant knew that he was a felon than that he in fact was a felon? [00:22:49] Speaker 02: Yes. [00:22:50] Speaker 00: Then in this case, for example, when the stipulations made about felon status, the jury's given the instruction that the evidence is relevant only to proving that the defendant was unlawfully in possession of a firearm as a person previously convicted of a crime punishable by imprisonment for a term exceeding one year. [00:23:08] Speaker 00: So the jury's specifically told you can only take this stipulation for purposes of felon status. [00:23:14] Speaker 00: It's not given the option of taking that into account. [00:23:17] Speaker 00: purposes of the mens rea now at the time nobody knew that you even cared about that i i understand that but that seems to go back to the question of whether there's such a thing as a sufficiency challenge in this context but when the jury specifically told you can't take it into account for any other purpose i don't know how we can say that the it goes to sufficiency well i understand and of course it is difficult to analyze this on the back end when raheem comes down in the interim and of course that instruction i would note this however um [00:23:42] Speaker 02: We also pointed to the evasive conduct that the defendant signaled on the scene. [00:23:49] Speaker 00: And again, I understand that. [00:23:51] Speaker 00: I mean, and there's other evidence that you could in theory point to. [00:23:54] Speaker 00: I mean, it's not the strongest evidence of knowledge of felon status. [00:23:57] Speaker 00: There's obviously there's much more that directly could have been done. [00:24:00] Speaker 00: But everybody, I take the point that everybody's operating on a false premise here because nobody knew that [00:24:06] Speaker 00: you needed evidence. [00:24:06] Speaker 00: It's not as if the government couldn't come up with something that would have been completely satisfying had they known. [00:24:10] Speaker 00: It's just that we're operating in this strange world in which nobody even knew that this mattered. [00:24:15] Speaker 02: And I'll finish with this note. [00:24:16] Speaker 02: I'm over my time, but that circles back around to the core question that relating to the fourth prong of Olano, which is, are you doing a disservice to the public reputation of a judicial proceeding if you do not recognize the error? [00:24:30] Speaker 02: And I would suggest, as many courts have found, the disservice would be done if you reversed here. [00:24:35] Speaker 00: Right. [00:24:35] Speaker 00: For plain error purposes, that might totally take the point. [00:24:38] Speaker 00: It gets confusing with sufficiency, but I think we've been around that. [00:24:41] Speaker 00: But we appreciate your arguments. [00:24:43] Speaker 00: If my colleagues don't have any further questions for you. [00:24:45] Speaker 00: No questions. [00:24:46] Speaker 02: Thank you. [00:24:46] Speaker 00: Thank you. [00:24:47] Speaker 02: We would ask that you affirm the conviction below. [00:24:49] Speaker 02: Thank you. [00:24:50] Speaker 00: Thank you. [00:24:51] Speaker 00: Mr. Mammon, we'll give you your two minutes of rebuttal that you'd asked for. [00:24:54] Speaker 03: Thank you, Your Honor. [00:24:57] Speaker 03: If I could start back with the rehab issue [00:25:01] Speaker 03: a colleague on the other side mentioned the Maryland offense and using that as further evidence that he would have known as a felony status. [00:25:09] Speaker 03: First, we don't actually know at the time that he was arrested and found with this fireman in his car. [00:25:16] Speaker 03: He had been guilty but hadn't been sentenced yet in Maryland. [00:25:19] Speaker 03: There's a paucity of information on what that Maryland offense was about. [00:25:25] Speaker 03: There's nothing that was put in the record [00:25:28] Speaker 03: I've gone back and tried to figure out the offense that you would have pled guilty to and the nature of it. [00:25:32] Speaker 03: We don't know the plea colloquy, but I can say based on my research that Maryland, again, this is that 922 doesn't require you to be convicted of a felony. [00:25:41] Speaker 03: 922 says you have to know your status that you've been convicted of a crime carrying a sentence of more than a year of imprisonment. [00:25:48] Speaker 03: The Maryland offense that I think applies here is one that requires a felony conviction that could be under a state law felony. [00:25:56] Speaker 03: which can be drug crime. [00:25:58] Speaker 03: The breadth of it, I guess, is unknown, that it's not too extensive of knowledge. [00:26:03] Speaker 03: I'm pleading guilty to knowledge you can convict of a felony, which he had in the Virginia State for, transfers over to, well, you also knew that you'd be convicted of a crime that carried more than a year in prison when he never served more than a year in prison. [00:26:16] Speaker 03: So I think that's, I think the Maryland plea was never relied on below, but it also doesn't get us there as far as [00:26:26] Speaker 03: proof that Mr Reynoso knew of his status. [00:26:30] Speaker 03: Regarding the Medley, McCauley points out, yes, the Fourth Circuit is hearing Medley and Bank, I believe, in January. [00:26:38] Speaker 03: But even on Medley's facts, this case is much, much different. [00:26:42] Speaker 03: Medley spent 16 years in prison. [00:26:46] Speaker 03: And so, you know, there's that fact that aligns with all the other circuits which have looked [00:26:51] Speaker 03: the length of time that a person actually spends in prison and saying, well, surely they know they were convicted of offense carried more than a year prison when they serve. [00:27:00] Speaker 03: Uh, thank you for time. [00:27:01] Speaker 03: If you have any other questions, happy to answer them. [00:27:03] Speaker 03: But I see my time. [00:27:05] Speaker 00: Thank you, counsel. [00:27:06] Speaker 00: Thank you to both counsel and Mr Mammon. [00:27:08] Speaker 00: You were appointed by the court to assist us in this matter and the court appreciates your able assistance. [00:27:13] Speaker 03: Thank you.