[00:00:00] Speaker 01: Case number 19-3094, United States of America versus Morris Jamal Johnson, a balance. [00:00:06] Speaker 01: Ms. [00:00:07] Speaker 01: Williamson for the appellant, Mr. Coleman for the appellate. [00:00:11] Speaker 04: Good morning, counsel. [00:00:12] Speaker 04: Ms. [00:00:12] Speaker 04: Williamson, when you're ready, please proceed. [00:00:15] Speaker 02: Good morning, your honors, and may it please the court. [00:00:18] Speaker 02: Your honors, Morris Johnson, an honorably discharged military veteran and firearms hobbyist, was convicted of six counts [00:00:26] Speaker 02: related to his possession of two modified 37 millimeter shells. [00:00:32] Speaker 02: The government agrees that four of Mr. Johnson's convictions should merge into two. [00:00:38] Speaker 02: The government also agrees that Mr. Johnson should get a hearing on his ineffective assistance of counsel claim. [00:00:45] Speaker 02: But Mr. Johnson's other two claims also warrant this court's relief. [00:00:49] Speaker 02: First, [00:00:50] Speaker 02: Mr. Johnson's two counts of conviction for possessing two modified shells in the same place and at the same time constitute a single course of conduct. [00:01:04] Speaker 02: Under District of Columbia law, courts presume that the unit of prosecution for weapons possessions offenses is the instance of possession, not the number of individual items possessed. [00:01:18] Speaker 02: That presumption applies unless the DC council expressed a clear intention that the statute permits multiple convictions. [00:01:27] Speaker 02: There was no such intention here. [00:01:30] Speaker 02: Accordingly, this court should remand this matter to the district court with instructions to vacate. [00:01:37] Speaker 04: Let me ask you a question about this part of your argument. [00:01:40] Speaker 04: So the statute, it speaks in terms of a person who possesses a weapon of mass destruction. [00:01:46] Speaker 04: but it also speaks in terms of a person who manufactures. [00:01:48] Speaker 04: I think it says a person who manufactures or possesses. [00:01:52] Speaker 04: That's right. [00:01:53] Speaker 04: Would you say the same argument that you're making now applies to manufacturing also, so that, for example, if the police search a house and they see two of the same object both being manufactured, let's say in separate rooms of the house, but it's one house, would it be one manufacturer even though there's two different objects being manufactured? [00:02:16] Speaker 04: in two rooms of the house, or would it be only one manufacturer because there's one process of manufacturing going on in two different places in the house? [00:02:27] Speaker 02: Your Honor, the question would be whether this was one course of conduct. [00:02:32] Speaker 02: The government could allege that those were two separate courses of conduct, such that possession occurred separately. [00:02:40] Speaker 02: Under the circumstances, your honor, outlined likely that manufacturer would would constitute one count there. [00:02:49] Speaker 04: Why is that because it just feels to me like with manufacturing. [00:02:52] Speaker 04: It seems like there's there's two. [00:02:56] Speaker 04: manufacturers going on, not just one, because there's two machines, let's say, that are doing the manufacturing, and they're two different, they're in adjacent rooms of the house. [00:03:05] Speaker 04: It doesn't feel like one manufacturer, even if it's the same person doing them, and even if it's the same person doing them at the same time, it does seem like there's two acts of manufacturing going on. [00:03:14] Speaker 04: And it's not clear to me why the analysis would be different, or the word that's right next to it in the statute possess. [00:03:21] Speaker 02: Yes, Your Honor. [00:03:22] Speaker 02: I think here the question is whether the D.C. [00:03:25] Speaker 02: Council expressed a clear intent that this be, that more than one count of conviction be possible under the statute. [00:03:34] Speaker 02: And for a manufacturer as for possession, there's no such intent in the language of the statute or in the legislative history. [00:03:42] Speaker 02: So the court would look to that. [00:03:44] Speaker 04: But even your argument is limited to, I think you said, and I think Avery says, same place and same time. [00:03:51] Speaker 04: And what's a place? [00:03:54] Speaker 04: So if it's the same person and they own adjacent houses, and there's one being possessed in one house, and there's one being possessed in another house, is that the same place? [00:04:06] Speaker 02: Your Honor, the presumption would be that those are different places, but the government could allege. [00:04:12] Speaker 04: Why are they different places? [00:04:15] Speaker 04: It's the same person who owns both houses, and it's the same person doing the possessing in both houses. [00:04:20] Speaker 04: The place I thought in a brief that the place was identified as the District of Columbia. [00:04:25] Speaker 04: That's right, Your Honor. [00:04:26] Speaker 04: Two houses adjacent to each other, both going to be in the District of Columbia. [00:04:29] Speaker 04: So why would those be two different places? [00:04:31] Speaker 02: Your Honor, in in this in the facts of this case, Mr. Johnson's indictment alleged only that the possession was in the District of Columbia. [00:04:39] Speaker 02: But were the government to allege that possession or manufacturer incurred in two separate locations, the government could put on facts at trial demonstrating [00:04:49] Speaker 02: that the possession occurred in two different courses of conduct. [00:04:52] Speaker 02: So, for example, in your honor's hypo, those two separate locations in which the individual was manufacturing, even though owned by the same individual, may constitute two different courses of conduct for purposes of the statute. [00:05:08] Speaker 04: Oh, so I guess I wasn't, does it turn just on the way the government alleges it because [00:05:13] Speaker 04: then you could allege two different rooms in the same house as being two different places too, or two different places in the same room as being two different places. [00:05:23] Speaker 02: Yes, Your Honor, under the terms of the statute, the DC Council intended for there to be one punishment for one course of conduct. [00:05:34] Speaker 02: The government could allege that there were multiple instances of possession. [00:05:38] Speaker 02: and attempt to prove that there were multiple instances of possession. [00:05:42] Speaker 02: In this case, the government didn't attempt to do that. [00:05:46] Speaker 02: The allegation was that Mr. Johnson possessed the two modified shells in the District of Columbia and that he possessed them on the same day in January. [00:05:56] Speaker 04: Let me ask you one last question along these lines, for now at least. [00:06:00] Speaker 04: Your case in some ways has the best scenario for your side because [00:06:05] Speaker 04: the objects seem to be basically facsimiles of one another. [00:06:08] Speaker 04: And it's largely in the same place. [00:06:11] Speaker 04: And as far as we know, it's at the same time, because they were discovered at the same time. [00:06:16] Speaker 04: What if there were two dramatically different weapons of mass destruction? [00:06:20] Speaker 04: One of them is a dirty bomb, and one of them is a shell. [00:06:24] Speaker 04: And they're both being possessed in the same house at the same time, and they're discovered in the same search. [00:06:31] Speaker 04: Your argument's still the same, that you're only [00:06:35] Speaker 04: perpetrating one act of possession, even though one of them is a dirty bomb and the other one is a shell. [00:06:43] Speaker 02: Yes, Your Honor, it would be the same argument. [00:06:46] Speaker 02: And and being demonstrates this in being the District of Columbia held that it was one course of possession when a defendant possessed both a knife and a rifle. [00:07:00] Speaker 02: And the court raised this issue sui sponte. [00:07:03] Speaker 02: And possession in that case occurred in two different locations in a vehicle. [00:07:08] Speaker 02: One of the items was in the front seat, in the passenger seat of the car, and the other was in the trunk. [00:07:16] Speaker 02: And the District of Columbia Court of Appeals, Sue Esponti said that was one course of possession. [00:07:24] Speaker 04: Was that a possession statute or was it carry? [00:07:29] Speaker 02: That was in Bean, Your Honor. [00:07:32] Speaker 04: Yeah, in Bean, did the statute bar possession or did it bar carrying? [00:07:37] Speaker 04: And maybe there's not a difference. [00:07:39] Speaker 02: It barred carrying, but the statute was quite similar. [00:07:44] Speaker 02: It was carrying a pistol or any deadly or dangerous weapon. [00:07:49] Speaker 02: And in that case, the statute, there was even stronger suggestion in the language of the statute that could be read to permit [00:07:58] Speaker 02: two different counts. [00:08:00] Speaker 02: But the court said no, that under those circumstances, there was only one count of possession permitted. [00:08:13] Speaker 02: If your honors don't have any additional questions on that at the moment, I'm happy to move to the closing argument issue. [00:08:22] Speaker 02: The district court abused its discretion [00:08:24] Speaker 02: by limiting Mr. Johnson's trial counsel's closing argument to only some, not all, of the favorable inferences from the record. [00:08:35] Speaker 02: Trial counsel wished to point the jury to the possible inference that a key government witness may have distorted evidence. [00:08:46] Speaker 02: Although the district court permitted trial counsel to argue some inferences from the record, [00:08:54] Speaker 02: The district court did not permit Trout counsel to argue all permissible inferences. [00:09:01] Speaker 02: That, Your Honor, cut to the core of Mr. Johnson's case and was error. [00:09:07] Speaker 02: If Your Honors have no more questions, I will reserve the remainder of my time for rebuttal. [00:09:12] Speaker 01: Oh, I have a couple of questions. [00:09:14] Speaker 01: Is our standard review on the closing argument [00:09:23] Speaker 01: issue you raise, abuse of discretion? [00:09:27] Speaker 01: That's right, Your Honor. [00:09:29] Speaker 01: Why, then, is this an abuse of discretion? [00:09:36] Speaker 01: In other words, do you have any burden to show that, say there are three inferences, you get to argue two, and then you would have to show that, or would you, that the third inference you were not allowed [00:09:53] Speaker 01: to argue was a key part of the theory of the defense. [00:10:03] Speaker 01: In other words, what would you have to show to prevail on an abuse of discretion? [00:10:11] Speaker 02: Yes, Your Honor. [00:10:14] Speaker 02: We would have to show that the district court did not permit trial counsel to argue inferences that cut to the core of [00:10:23] Speaker 02: the defendant's case. [00:10:25] Speaker 02: So under Your Honor's scenario of two inferences permitted, but not a third, if that third inference cut to the core of the defendant's case, it would be an abuse of discretion not to permit trial counsel to argue that inference as well. [00:10:40] Speaker 01: So how does that work here in your case? [00:10:43] Speaker 02: Well, Your Honor, in this case, Mr. Johnson's core theory was that the government hadn't put on evidence [00:10:51] Speaker 02: supporting the inference that these were firearms under the statute. [00:10:56] Speaker 02: So the testimony of Agent Campbell about how the weapons were disassembled and how they appeared when he disassembled them, that cut to the core of Mr. Johnson's theory. [00:11:08] Speaker 01: And what you wanted to argue was specifically [00:11:17] Speaker 01: I thought that it's turned on the district court making an evaluation of whether or not the evidence showed the negative inference as to the officer. [00:11:30] Speaker 02: That's right, Your Honor. [00:11:32] Speaker 02: The district court permitted Mr. Johnson's trial counsel to argue that generally this agent's testimony couldn't be trusted. [00:11:40] Speaker 02: But trial counsel wished to point the jury directly to the inference that it could [00:11:46] Speaker 02: look to this prior district court's judgment about this agent's handling of evidence and say from that, perhaps this agent may have distorted evidence. [00:11:59] Speaker 01: Why is it an abuse of discretion for the district court to say, essentially, that's another case. [00:12:05] Speaker 01: It's not before us. [00:12:07] Speaker 01: We don't know the facts, et cetera. [00:12:09] Speaker 01: And I'm just not going to allow that here when you are [00:12:16] Speaker 01: allowed, based on the evidence in this case, to argue the basic inference and not the specific example in another case not before the court. [00:12:29] Speaker 02: Yes, Your Honor. [00:12:30] Speaker 02: I think the reason it's an abuse of discretion here is because it cut the theory that this agent may have [00:12:38] Speaker 02: distorted evidence specifically cut to the core of Mr. Johnson's case. [00:12:43] Speaker 02: So if the district court had not permitted the evidence of this prior district court's finding about this agent, then there wouldn't be evidence on the record to support the inference. [00:12:56] Speaker 02: But once the district court permitted that evidence, there was evidence on the record to support an inference. [00:13:03] Speaker 02: And under Deloach, the district court must permit [00:13:08] Speaker 02: trial counsel to draw all reasonable inferences, including inferences that are, in the court's words, untenable, forced, unnatural. [00:13:21] Speaker 02: So the standard is such that defendants counsel are given quite a bit of leeway to specifically point the jury to the theory of the case. [00:13:32] Speaker 02: And here, Mr. Johnson's trial counsel was not permitted to draw all the possible inferences. [00:13:38] Speaker 02: For that reason, it was an abuse of discretion. [00:13:42] Speaker 01: Well, all I'm getting at is that's what I'm trying to understand is when it is an abuse of discretion and when is it simply a reasonable exercise of discretion when the defense gets to argue its basic theory that you shouldn't trust the officer's testimony. [00:14:01] Speaker 02: Yes, Your Honor. [00:14:05] Speaker 01: Is the argument here that where you have [00:14:08] Speaker 01: This is such a demonstrative demonstration of this, that it's just blatantly an abuse of discretion not to allow the defense to argue this? [00:14:26] Speaker 02: I think, yes, Your Honor, it's certainly right that the more evidence supporting an inference [00:14:35] Speaker 02: And the more that the inference cuts to the core of a defendant's case. [00:14:41] Speaker 02: the more likely it is an abuse of discretion if the district court- I understand that, counsel. [00:14:45] Speaker 01: I need specifics because I'm thinking of cases, gruesome cases, where the defense wants to introduce two boxes of photographs of the brutal stabbings or the killings of people. [00:15:03] Speaker 01: And the district court says, well, you can introduce one box. [00:15:07] Speaker 01: but not two or he or she refines it even more. [00:15:12] Speaker 01: You can reduce 10 and that's it. [00:15:15] Speaker 01: And I'm trying to understand why you think this is a different situation because I'm suggesting there that we normally defer to the district court on matters [00:15:30] Speaker 01: of inflaming the jury, and that would be so in the gruesome picture case. [00:15:34] Speaker 01: I'm trying to understand this, and I do understand your theory, but I want to understand how it works in this case. [00:15:43] Speaker 01: Yes, you're right. [00:15:47] Speaker 01: If the district court let you put in two of the three inferences, what is it about this third inference that is so devastating to getting [00:16:00] Speaker 01: the theory of the defense before the jury. [00:16:05] Speaker 02: Yes, your honor. [00:16:07] Speaker 02: Under your hypo, the district court certainly has discretion as to limiting the amount of evidence in your hypo permitting one box verse two or two boxes verse three. [00:16:20] Speaker 02: But once that evidence is admitted and it's already before the jury, the question for closing argument is whether trial counsel is permitted to [00:16:29] Speaker 02: draw the jury's attention to that specific evidence. [00:16:32] Speaker 00: But I mean, didn't the district court premise its ruling on the legal theory that you don't have to allow an argument of evidence that's not been admitted? [00:16:44] Speaker 00: And that's what the district court said. [00:16:47] Speaker 00: Now, if you agree with that, I don't see how there can be an abuse of discretion. [00:16:51] Speaker 00: And I think the district court said that what went on in Kentucky or wherever it was did not involve tampering. [00:16:58] Speaker 00: And so the district court was essentially saying, you don't have any foundation, so to speak. [00:17:02] Speaker 00: And that's that. [00:17:03] Speaker 00: So I'm not letting it in. [00:17:06] Speaker 00: Yes, Your Honor, I think- I mean, do you agree with that legal premise, which is what the district court was relying on? [00:17:12] Speaker 00: We're not going to let you put on an argument that does not have any kind of evidentiary premise? [00:17:20] Speaker 02: Yes, your honor. [00:17:21] Speaker 02: Certainly I agree that if there were no evidence supporting an inference, trial counsel wouldn't be permitted to argue that. [00:17:28] Speaker 02: In this case though, trial counsel didn't want to argue that this agent tampered with evidence. [00:17:35] Speaker 02: That's to say trial counsel didn't wanna suggest that this agent testified about or produced photos about things that were not actually in evidence, but rather trial counsel wanted to argue [00:17:50] Speaker 02: that perhaps this agent had exaggerated the state of evidence. [00:17:54] Speaker 02: And I know that the difference there is subtle, but I think it's meaningful in this case, because for example, if the Fleschetti's were not in the device, but separate from the device, if a fuse were not in the device, but separate from the device, if powder were not in the device, but separate from the device, that would make a difference as far as whether that were a completed device [00:18:19] Speaker 02: or whether that were a combination of parts, it would undermine or might, in the eyes of the jury, undermine the jury's understanding of Mr. Johnson's culpability, number one, and whether he had actually manufactured or possessed items barred by the statute. [00:18:41] Speaker 04: All right. [00:18:41] Speaker 04: Council, let me make sure my colleagues don't have further questions for you at this time. [00:18:46] Speaker 04: No, I don't. [00:18:47] Speaker 04: Councilman, we'll give you some time for rebuttal. [00:18:48] Speaker 04: Thank you. [00:18:49] Speaker 04: Thank you. [00:18:51] Speaker 03: Mr. Coleman. [00:18:53] Speaker 03: Thank you. [00:18:54] Speaker 03: Good morning, Your Honors. [00:18:55] Speaker 03: Nick Coleman for the United States. [00:18:58] Speaker 03: I'd like to begin by addressing the question of the merger of appellants' convictions under the D.C. [00:19:06] Speaker 03: Code, Weapons of Mass Destruction statute, before briefly addressing the closing argument issue. [00:19:13] Speaker 03: We respectfully submit that Palant's convictions for possession of two weapons of mass destruction under the DC Code do not merge. [00:19:24] Speaker 03: And I think that there is a crucial distinction to be drawn between the statutes that the Palant is citing, which deal with the carrying of weapons [00:19:39] Speaker 03: a prohibited carrying of weapons or the possession of those weapons during the commission of another offense, as opposed to the statute here, which is intended to implement an absolute ban on a certain kind of weapon, in this case, a weapon of mass destruction. [00:19:58] Speaker 03: The statutes are not, in fact, equivalents, and thus the legislative intent, I think, is much different. [00:20:05] Speaker 03: If you take a look at [00:20:09] Speaker 03: Certainly at the legislative history and at the statute itself. [00:20:14] Speaker 03: It's quite clear that what the DC Council was trying to do was to essentially implement an absolute ban on the possession or manufacture of weapons of mass destruction within the District of Columbia. [00:20:26] Speaker 03: that ban would be undermined, we respectfully submit, if the court were to take a sort of in for a penny, in for a pound approach in which there's no difference between the possession of 20 weapons of mass destruction, which of course could then be placed all over the city, as opposed to simply one. [00:20:45] Speaker 04: And I think it's telling that as- If the person is found placing them in 20 different places, [00:20:56] Speaker 04: then, and it were alleged that there were 20 different acts of possession because they were placed in 20 different places. [00:21:02] Speaker 04: That might be one thing, but it seems like the argument here is that because they were found in the same place in this, you know, boxes, either the same box or boxes right next to each other in the same house. [00:21:13] Speaker 04: And the allegation didn't suggest that they were found in two different places. [00:21:18] Speaker 04: Then that's one act of possession. [00:21:21] Speaker 04: And I mean, I, I guess, [00:21:24] Speaker 04: I could see it either way, but you would agree, I think, that the DC opinions are the relevant body of opinions, right, for a DC statute. [00:21:33] Speaker 04: So in other words, that's right on point. [00:21:35] Speaker 04: We would be bound by that. [00:21:37] Speaker 04: So if that's the case, if there's no dispute about that, then Ms. [00:21:43] Speaker 04: Williams did point out Bean. [00:21:45] Speaker 04: And I know that you're saying Kerry has different possessions, certainly the different words. [00:21:49] Speaker 04: But what is the difference? [00:21:51] Speaker 04: Carrying and possessing are both things you do with a weapon. [00:21:56] Speaker 04: And are you suggesting that if this statute were the exact same except it just barred carrying weapons of mass destruction, that there would be a different result as between carrying a weapon of mass destruction and possessing or manufacturing a weapon of mass destruction? [00:22:10] Speaker 03: I certainly that would be a much harder case for the government to argue. [00:22:15] Speaker 03: I do think that there is a significant difference here. [00:22:18] Speaker 03: And part of the reason why is if you look at, although we tend to think sort of colloquially as the carrying a pistol without a license statute, the carrying a dangerous weapons statute as implementing a ban on firearms within the district, technically that's not actually what they were doing. [00:22:38] Speaker 03: The firearm itself was not directly prohibited by any of those statutes. [00:22:44] Speaker 03: The mere possession of the firearm was not prohibited. [00:22:48] Speaker 03: It was prohibited only under certain circumstances. [00:22:51] Speaker 03: One, you could not carry it on your person if you did not have a license to do it. [00:22:55] Speaker 03: Now, of course, the district didn't issue licenses until recently. [00:22:59] Speaker 03: You also couldn't have an unregistered firearm. [00:23:04] Speaker 03: That was the statute analyzed in Hammond, which of course we described in our brief and we think is actually the better analogy here. [00:23:12] Speaker 03: But even things like knives, which are covered by the carrying a dangerous weapons statute. [00:23:18] Speaker 03: It's not that the item itself was banned or banned under all circumstances. [00:23:23] Speaker 03: It was only it's carrying or use under certain circumstances that was prohibited. [00:23:32] Speaker 03: Not so here with the weapons of mass destruction statute that simply says, you cannot possess it, you cannot manufacture it you cannot possess it. [00:23:42] Speaker 03: It is a, it is this statute is different in kind, it's intended very clearly to implement an absolute ban. [00:23:51] Speaker 00: I'm sorry, go ahead, Trey. [00:23:54] Speaker 00: No, please, please. [00:23:57] Speaker 00: Did you see it mean, I think, if I remember correctly, they're setting a presumption that is inconsistent with what, in other words, if there is a benefit of the doubt, it would go to the defendant here, as I'm reading the case law, and not go your way. [00:24:11] Speaker 00: And this is an odd statute because [00:24:13] Speaker 00: A violation can be punished by imprisonment for life. [00:24:17] Speaker 00: So whether you have one or 600 is not going to make any difference. [00:24:22] Speaker 00: I realize this is very close in that there's no clear guidance in the evidence. [00:24:28] Speaker 00: So you're trying to we're trying to scratch out where do we look the DC case law is not supporting you. [00:24:34] Speaker 00: as I read it, I just don't see where you have any strong support for your position. [00:24:40] Speaker 00: We're looking to see whether someone possessed a weapon of mass destruction, one or 700. [00:24:45] Speaker 00: And if so, there's a possibility of imprisonment for life. [00:24:50] Speaker 00: And I don't see how you get multiple indictments out of that. [00:24:55] Speaker 00: I just don't see it out of the line. [00:24:56] Speaker 00: I see what you're saying. [00:24:58] Speaker 00: But it seems to me, if there's an ambiguity here, our sense in these criminal cases is it cuts against the prosecution. [00:25:07] Speaker 00: You got to have something better than, well, but you could read the language our way. [00:25:12] Speaker 00: That doesn't work for me in any event. [00:25:15] Speaker 00: And I don't see anything in the DC case law that works for you. [00:25:19] Speaker 03: So I think that Hammond, Your Honor, I respectfully submit is instructive here. [00:25:25] Speaker 03: In Hammond, obviously there were arguments to be had on both sides as to whether or not the possession of an unregistered firearm statute should be read to, that its unit of prosecution should be the firearm or whether it should just be the possession of any amount of unregistered firearms. [00:25:44] Speaker 03: And the court there looked carefully at the purpose behind the statute. [00:25:49] Speaker 03: and both its language and what it was designed to implement and concluded, in fact, that the unit of prosecution was the firearm. [00:25:59] Speaker 03: I do agree with you that under BEAN, if there are serious doubts, then in general, those must be resolved in favor of the defendant. [00:26:06] Speaker 03: I mean, that's a basic implementation of the rule of lenity. [00:26:09] Speaker 03: But I think, again, I don't think that there is here, you know, to borrow the sort of lenity cases, the kind of grievous ambiguity that requires this court to conclude that it has to be a grievous ambiguity. [00:26:24] Speaker 03: Well, that's what the Supreme Court did say in Chapman, Your Honor. [00:26:27] Speaker 03: And I understand exactly what those words mean can be argued. [00:26:32] Speaker 00: But it's clearly an ambiguity. [00:26:34] Speaker 00: I'll give you that. [00:26:36] Speaker 00: And I think it's a very clear ambiguity. [00:26:40] Speaker 00: And if you have that it seems to be that's enough for you to be in trouble. [00:26:45] Speaker 00: And then it's so the oddity in this statute. [00:26:48] Speaker 00: It takes one for you to get the worst, the what the DC Council had in mind only all you need is one. [00:26:55] Speaker 03: Well, except that I think, though, I do understand your honor's point about the sort of very severe potential penalty. [00:27:02] Speaker 03: But of course, it just says up to life. [00:27:04] Speaker 03: There's no mandatory. [00:27:05] Speaker 00: No, no, no, no, no. [00:27:06] Speaker 00: I understand the limitations of my it's instinct now. [00:27:09] Speaker 00: We're trying to figure out where you go with this. [00:27:12] Speaker 00: And if you don't have anything more than you're presenting, I think it's a troublesome argument. [00:27:18] Speaker 03: Well, I do think, though, that the implications of what appellant is arguing are also equally troublesome. [00:27:25] Speaker 03: If you know, obviously here appellant was not charged with manufacturing a weapon of mass destruction but to take a point that the judge Trina Boston brought up. [00:27:36] Speaker 03: under Appellant's argument, and Appellant, I think, forthrightly acknowledges, the implication of Appellant's argument is that you could manufacture as many of these weapons of mass destruction as you want, and you would face only one conviction. [00:27:49] Speaker 03: I don't think that is a reasonable implementation. [00:27:52] Speaker 00: You have a one conviction for life. [00:27:55] Speaker 00: I suspect that it weighs very heavily in the sentencing if someone manufactures one as opposed to 27. [00:28:03] Speaker 00: That's going to affect how the sentencing is going to go. [00:28:05] Speaker 00: And the sentencing has the possibility of up to life for one or up to 27. [00:28:11] Speaker 00: And so that's why the argument you're advancing just doesn't ring true to me, because if there are multiple things going on, that will be taken account of in sentencing. [00:28:22] Speaker 00: And the sentencing goes up to life for one and as many more beyond one as you find. [00:28:28] Speaker 00: So, I mean, I just, it just doesn't ring true as a compelling argument in this situation, the language, and I've gone back and forth on it, but the language just doesn't ring true. [00:28:38] Speaker 00: And Lenity, for me anyway, is a real concern here, the rule of Lenity. [00:28:45] Speaker 03: And I understand your honor's concerns. [00:28:48] Speaker 03: Obviously, I think, you know, I'm not saying that one can't make an argument. [00:28:53] Speaker 03: The question is whether or not there is sufficient ambiguity or lack of clarity to require that. [00:28:59] Speaker 03: Let me ask you one question as a follow up. [00:29:02] Speaker 04: The way you were drawing the distinction, it sounds to me, in response to both of our questions is between a ban and a non-ban situation. [00:29:10] Speaker 04: But with the controlled substances cases, I think there's a ban, right? [00:29:13] Speaker 04: You can't possess [00:29:14] Speaker 04: the control of substance period. [00:29:15] Speaker 04: They just want to root out the possession of the control of substance. [00:29:18] Speaker 04: But then the control of substance cases come out the same way as being because you have briscoe where marijuana is found in two different places in the same house, but it was considered to be one act of possession of marijuana, even though that's a ban, a ban statute, I think. [00:29:34] Speaker 03: Understood. [00:29:35] Speaker 03: I do have two responses on that, Your Honor. [00:29:38] Speaker 03: First of all, even when you're talking about the same substance, the way DC statutes are much like the federal statute, they are based on the amount that you have of the substance. [00:29:49] Speaker 03: So it's not that if you have two tons of marijuana, you are subject to the same penalty as if you have two ounces. [00:29:57] Speaker 03: In other words, those statutes are actually structured in a way that takes into account how much of it you have. [00:30:03] Speaker 03: It's not so much that it's based on whether you've split up your amount into a couple of different places, but it takes the whole and it tries to figure out how much you actually have. [00:30:14] Speaker 00: Well, I think a state like this takes into account how much by having sentencing up to life. [00:30:21] Speaker 00: That's where if you have to address that is we're looking at someone who not just has one little, I don't mean to minimize it, one little weapon of mass destruction or really has this huge warehouse at home, that's going to be taken into account. [00:30:43] Speaker 03: Right, and I think though, however, when we, we also need to implement sort of what the legislature wanted to do and the question is whether it wanted it to leave it purely to the discretion of a sentencing judge, as opposed to, you know, should each device be separately punishable. [00:31:02] Speaker 00: Okay. [00:31:02] Speaker 03: I think, you know, and again, I would simply conclude with the idea that I strongly suspect that the council members, if you would ask them, would have thought that each device was separately punishable and that by implementing a ban, that that's what they intended to do. [00:31:18] Speaker 03: So we would respectfully submit that that is what this course should try. [00:31:21] Speaker 00: I don't think you want to go there because if I were teaching a class with the council member and I said, here's the hypothetical, I suspect Moore would vote the way I'm suggesting [00:31:29] Speaker 00: That is, do you need more than one? [00:31:32] Speaker 00: But in any event, I hear you. [00:31:35] Speaker 03: Very well, Your Honor. [00:31:37] Speaker 03: I'd like to proceed to address the closing argument question. [00:31:44] Speaker 03: I'm sorry. [00:31:45] Speaker 03: Why don't you take a minute to address the closing argument. [00:31:48] Speaker 03: Yes. [00:31:48] Speaker 03: So, so, so, the main problem I have here with appellants argument is that appellate and now I was talking about how apparently appellate was not permitted to argue that the agent distorted the evidence. [00:32:00] Speaker 03: I don't recall the word distort being used before the district court. [00:32:05] Speaker 03: Instead, if you look at page 295 of the appendix, the transcript here, what Appellant's counsel was asking for permission to argue [00:32:16] Speaker 03: that Agent Campbell did in fact tamper with the evidence. [00:32:21] Speaker 03: Appellant here today seems to be saying that that's not what Appellant wanted to do, but that's certainly how it was phrased to the district court. [00:32:27] Speaker 03: I think the court correctly concluded that the Kentucky, the ruling from Kentucky was not a ruling that Agent Campbell had tampered with any evidence. [00:32:38] Speaker 03: I'm not entirely sure what distort means here but if the question is whether he exaggerated or mishandled evidence or shouldn't be credited in describing that evidence, he was permitted to do all of that. [00:32:51] Speaker 00: But the fight in the district court was over tampering, right? [00:32:55] Speaker 00: Being able to... Yes, exactly. [00:32:57] Speaker 00: Well, that was what I thought. [00:32:58] Speaker 00: But go ahead. [00:32:59] Speaker 03: Right. [00:32:59] Speaker 03: And that is... But I haven't heard a appellant yet argue that that is specifically what a appellant should have been allowed to do. [00:33:09] Speaker 03: But as far as I can tell, that is the only thing that appellant was not permitted to argue. [00:33:13] Speaker 03: And it seems to me that the district court permitted everything else. [00:33:16] Speaker 03: So [00:33:17] Speaker 03: Again, I guess it depends on what appellant means by distort. [00:33:21] Speaker 03: But if by distort, exaggerate, or mischaracterize, or just shouldn't be believed about the description, that was all permitted. [00:33:35] Speaker 03: And so I don't think certainly appellant has shown any abuse of discretion in how the district court approached how appellant could use that prior ruling. [00:33:46] Speaker 03: If there are no further questions, we respectfully submit that the judgment should be affirmed, as we've stated, with the exception that certain counts should be vacated as merged and the case should be remanded for consideration of the ineffective assistance of counsel claim. [00:34:01] Speaker 03: Thank you. [00:34:03] Speaker 04: Thanks, Mr. Coleman. [00:34:04] Speaker 04: Miss Williamson, we'll give you two minutes for your vote. [00:34:07] Speaker 02: Thank you, Your Honors. [00:34:09] Speaker 02: First, on the point about the District of Columbia Weapons of Mass Destruction counts, the court should view Bean as guiding the court's analysis here. [00:34:21] Speaker 02: Bean sets out the exact analysis this court should follow. [00:34:25] Speaker 02: It's important, Your Honors, that the D.C. [00:34:27] Speaker 02: Council, when it enacted this statute, was legislating against the backdrop of these existing cases. [00:34:34] Speaker 02: Cormier is a case from the 1950s. [00:34:37] Speaker 02: been as a case from the 1990s. [00:34:39] Speaker 02: We should presume, the court should presume that the District of Columbia Council knew that these cases existed, knew that it would have to clearly express its intent if it intended for multiple punishments to be permissible under this statute. [00:34:54] Speaker 02: As Your Honor Judge Edwards pointed out, we believe that the proper way that the District of Columbia Council accounted for [00:35:03] Speaker 02: differences in conduct was through punishment, permitting punishment up to life imprisonment. [00:35:10] Speaker 02: And the court can also look to a different context. [00:35:15] Speaker 02: The 922G statute, where all courts of appeals have held that multiple violations of that statute count merge into one conviction, where a defendant has [00:35:31] Speaker 02: several items. [00:35:34] Speaker 02: On on counsel's point about the closing argument at page 293 of the appendix, trial counsel specifically said that he did not wish to argue that there was any tampering. [00:35:54] Speaker 02: He suggested that there might have been evidence on the record on which that inference would have been permissible, but [00:36:00] Speaker 02: That wasn't the inference he sought to argue. [00:36:03] Speaker 02: He sought to argue that the agent in this case had distorted or exaggerated evidence. [00:36:11] Speaker 02: And that was the way that the district court curtailed the argument. [00:36:16] Speaker 02: If your honors have no more questions, we would respectfully request that the court vacate Mr. Johnson's, six of Mr. Johnson's convictions because of the abuse of discretion on closing argument. [00:36:30] Speaker 02: We would also request that the court vacate and remand this matter for a hearing on the evidentiary, excuse me, on the ineffective assistance of counsel claim and vacate the duplicative counts. [00:36:47] Speaker 02: Thank you, Your Honor. [00:36:47] Speaker 04: Thank you, counsel. [00:36:48] Speaker 04: Thank you to both counsel. [00:36:50] Speaker 04: Ms. [00:36:50] Speaker 04: Williamson, you are appointed by the court to represent appellant in this matter, and the court thanks you for your assistance. [00:36:56] Speaker 02: Thank you, Your Honor. [00:36:57] Speaker 04: We'll take this case under submission.