[00:00:00] Speaker 02:
case number 24303 United States of America versus John Johnson.

[00:00:06] Speaker 02:
Also, Mr Johnson at balance.

[00:00:09] Speaker 02:
Mr Castle.

[00:00:10] Speaker 02:
You still have that.

[00:00:14] Speaker 01:
Good morning.

[00:00:14] Speaker 01:
Good morning.

[00:00:17] Speaker 04:
May it please the court.

[00:00:21] Speaker 04:
represent Jonathan Johnson.

[00:00:23] Speaker 04:
This is a appeal from a criminal case.

[00:00:27] Speaker 04:
Um, Mr Johnson has raised two issues.

[00:00:31] Speaker 04:
Um, he was convicted, um, before the district court for one count of 18 US code 9 22 G one, um, colloquially, I guess, known as the felon in possession charge.

[00:00:47] Speaker 04:
Um, the, um,

[00:00:51] Speaker 04:
issue that I first addressed is whether the district court erred or abused its discretion in denying the post-verdict evidentiary request, post-verdict request to interview the juror or to have a hearing where the juror would be present and address questions that have been raised.

[00:01:17] Speaker 04:
The second issue involves the constitutionality of 18 U.S.

[00:01:21] Speaker 04:
Code 922-G.

[00:01:22] Speaker 02:
On the first issue, how much of this email would be admissible?

[00:01:27] Speaker 02:
Well, I think only one sentence, right?

[00:01:30] Speaker 04:
I thought that two sentences, perhaps.

[00:01:34] Speaker 04:
I thought that— Diagnosed with chronic anxiety and depression, and what else?

[00:01:39] Speaker 04:
I thought that the apology for failing to acknowledge this to the court previously would be perhaps relevant with regard to dishonesty and the issues related to that.

[00:01:55] Speaker 04:
So yes, I mean, we can't disagree that much of it would be not be the subject or would be precluded by 606B at least initially.

[00:02:06] Speaker 04:
But the request

[00:02:08] Speaker 04:
was really for almost any kind of hearing, starting with, at that point, they didn't know who the juror was.

[00:02:17] Speaker 04:
In fact, when the court scheduled argument on the issue, they still didn't know exactly who the juror was until they appeared for that argument.

[00:02:27] Speaker 04:
And the request was, once learning that, for further inquiry to be able to flush out

[00:02:35] Speaker 02:
Is a person with chronic anxiety and depression disqualified from serving as a matter of law?

[00:02:42] Speaker 04:
Not as a matter of law, not automatically.

[00:02:46] Speaker 04:
The problem is the need for further information.

[00:02:50] Speaker 04:
The judge sort of during the hearing without

[00:02:55] Speaker 04:
uh, conducting a further inquiry without bringing the juror in without allowing the juror to be interviewed, um, in an effort, I guess, to protect the juror, um, uh, said that, uh, uh, she believed that the juror was not lying as to the dishonesty issue.

[00:03:13] Speaker 04:
But the bottom line is, it's just far too little information.

[00:03:17] Speaker 04:
And, uh, as this court sort of discussed in the bony case, which was a bias case,

[00:03:22] Speaker 04:
until you have sufficient inquiry to learn what the various issues could be, it's hard to know.

[00:03:31] Speaker 04:
So, Judge, I think it's sort of prejudging on very little information whether there are issues that would go to mental competence or incompetence.

[00:03:44] Speaker 04:
The statute requires jurors to be competent.

[00:03:47] Speaker 04:
The Constitution requires it.

[00:03:49] Speaker 02:
It's not an unreasonable

[00:03:52] Speaker 02:
position you're taking, you need to show that Judge Pan abused her discretion in denying this.

[00:04:00] Speaker 02:
And she sat through the trial, she observed the juror, and that's a tough row for you to hoe.

[00:04:07] Speaker 02:
Well, I think that's some during voir dire too.

[00:04:11] Speaker 01:
She questioned her during voir dire.

[00:04:13] Speaker 04:
She did question her during voir dire.

[00:04:15] Speaker 01:
I mean, what struck me is that the juror want, I mean, the prospective juror wanted to be on the jury and didn't say anything about feeling any anxiety or so forth.

[00:04:29] Speaker 01:
And then

[00:04:31] Speaker 01:
This is just my view of it.

[00:04:33] Speaker 01:
The verdict did not suit her.

[00:04:39] Speaker 04:
Well, obviously the verdict troubled her, obviously her conscious bothered her.

[00:04:45] Speaker 04:
This is a situation where we're not asking, her attorney at that point wasn't asking for a new trial, wasn't asking to vacate the verdict, really trying to gather the information that's necessary.

[00:04:56] Speaker 04:
And that's where the abuse of discretion comes in.

[00:04:58] Speaker 04:
It's an improper

[00:05:01] Speaker 04:
reliance on 606B where the issue of dishonesty and mental competence don't really come into play with 606B.

[00:05:11] Speaker 04:
Werger is distinguishable.

[00:05:13] Speaker 04:
Werger was much narrower than the district court applied it.

[00:05:19] Speaker 04:
That involved testimony of a juror against another juror

[00:05:23] Speaker 04:
to even get to the threshold.

[00:05:25] Speaker 04:
Here we have a single juror.

[00:05:26] Speaker 04:
We're not interfering with jury deliberations, mental processes, other jurors being asked to testify about other jurors.

[00:05:37] Speaker 04:
This is a single juror brings something to the attention of the court.

[00:05:41] Speaker 04:
The single juror

[00:05:43] Speaker 04:
must expect that there's going to be some further inquiry.

[00:05:46] Speaker 04:
This isn't the kind of harassment case where you're going out and interviewing 12 jurors and trying to make hay.

[00:05:54] Speaker 04:
The hay was brought to you and there's an obligation on the district court

[00:06:00] Speaker 04:
to go a little further to determine whether there's competence issue, whether there was a Sixth Amendment violation and the only way to do that is really to ask the juror those questions and to figure out whether that was and to stop it at the point that it was stopped and to rely on 606B and the cases that the court relied upon is an abuse of discretion and that's the position that

[00:06:27] Speaker 04:
that we've raised and I think the case law supports it.

[00:06:31] Speaker 04:
I think the Solomon B. Fogg decision supports it.

[00:06:35] Speaker 04:
I think sort of the analysis in bony is obviously it's different.

[00:06:40] Speaker 04:
The bias is a lot different issue really, but the principles are the same.

[00:06:47] Speaker 04:
You have an issue of competency that's flagged.

[00:06:50] Speaker 04:
Why does this person not disclose that information?

[00:06:55] Speaker 04:
Attorneys and judges know the effect it could have during the deliberations and what it might mean and whether it might lead to a challenge for cause.

[00:07:05] Speaker 04:
I don't have a basis to make those claims now, but those would be further down the road.

[00:07:09] Speaker 04:
But I think it certainly meets the standard that's required

[00:07:15] Speaker 04:
for getting a further hearing on competency and certainly meets the McDonough standard for- Why is there an issue of-

[00:07:27] Speaker 03:
You say that so confidently.

[00:07:32] Speaker 03:
What prompts, I mean, the juror sends a note and said, I had surgery a couple of weeks ago and I have found, I now realize that every few days I have terrible pain and then if it continues today, I'm having a really bad day.

[00:07:47] Speaker 03:
I'm not sure my thinking is good.

[00:07:49] Speaker 03:
And the judge had no such information on the pretrial forms or inquiries or voir dire or anything.

[00:07:56] Speaker 03:
What makes it a real issue of competence?

[00:08:00] Speaker 03:
Of course, she said it.

[00:08:01] Speaker 04:
Mental illness, mental conditions are conditions.

[00:08:06] Speaker 04:
You're assuming something.

[00:08:07] Speaker 04:
No, well, I'm assuming what the juror stated.

[00:08:11] Speaker 04:
So we have a juror stating, I have a diagnosis, not just I'm having a bad day.

[00:08:18] Speaker 04:
I have a diagnosis of anxiety, chronic anxiety, depression.

[00:08:23] Speaker 04:
I understand she describes

[00:08:26] Speaker 04:
manic episodes, although that might not be admissible in some respects on 606B, although it might end up being, depending on whether mental competency becomes a real issue.

[00:08:39] Speaker 04:
But mental illness has been recognized by a number of courts, and we cited a few, where it did rise to the level of justifying a challenge for cause.

[00:08:51] Speaker 04:
So it is different than, I have a backache and I can tell the judge I need a break, I need to stand up.

[00:08:57] Speaker 03:
You get a trial overturned after the fact if defense counsel finds out that one of the jurors has a diagnosis of mental incompetence and never revealed it and yet sat.

[00:09:09] Speaker 04:
I believe that if that's what the hearing, what further hearing showed that the juror was incompetent and there's competent evidence to establish that, then I believe that the defendant would have been denied right to a fair and partial and competent jury that the Constitution recognizes and it would be, a new trial would be appropriate.

[00:09:41] Speaker 01:
You haven't addressed the second issue.

[00:09:45] Speaker 04:
Well, if I can quickly address the second issue.

[00:09:48] Speaker 04:
The second issue is a challenge to the constitutionality of 922G1.

[00:09:53] Speaker 04:
What's your good cause for not preserving it?

[00:09:58] Speaker 04:
Well, my first argument is that I don't necessarily have to show good cause that this circuit hasn't required that.

[00:10:08] Speaker 04:
If I had to address good cause, the cause was a disagreement between the defendant and counsel.

[00:10:21] Speaker 04:
sort of semi-flagged it for the court, but did not raise it to preserve it in a way that is possible.

[00:10:27] Speaker 04:
And under those circumstances, since it wasn't intentional relinquishment, the court should apply the plain error standard.

[00:10:40] Speaker 02:
Not in the brief, right?

[00:10:42] Speaker 02:
Is that in your brief?

[00:10:43] Speaker 04:
That's in the reply brief.

[00:10:45] Speaker 04:
And we've cited authority for courts that have permitted us to address that if the government raises waiver as an issue and made those arguments in the reply brief.

[00:10:59] Speaker 02:
You want plain error review.

[00:11:02] Speaker 02:
Correct.

[00:11:02] Speaker 02:
Which would put you in a better position for raising the issue for the first time

[00:11:11] Speaker 02:
on appeal than if you had raised it belatedly in the district court, where you would have to show good cause.

[00:11:19] Speaker 02:
That seems odd.

[00:11:22] Speaker 04:
Well, it's an interesting aspect of the rule.

[00:11:25] Speaker 04:
And as amended, it does suggest that the district court can address it for good cause.

[00:11:36] Speaker 04:
But for appellate purposes, there's been a different approach.

[00:11:40] Speaker 04:
I think good cause could have been made out in the district court in this case anyway, for the same reasons that I'm suggesting it's made out here.

[00:11:49] Speaker 04:
There's not an intentional relinquishment by the defendant.

[00:11:53] Speaker 04:
The defendant clearly wanted to raise it.

[00:11:58] Speaker 04:
And under those circumstances, the appropriate— What is your best argument for plain error?

[00:12:07] Speaker 01:
What is your best argument for plain error?

[00:12:09] Speaker 04:
For what?

[00:12:10] Speaker 04:
Applying plain error as opposed to good cause or why it's plain error?

[00:12:15] Speaker 04:
Well, obviously the argument is it's plain error because the statute's plainly unconstitutional post-Brolin in terms of the two-step analysis that now applies that Medina no longer is binding or controlling.

[00:12:32] Speaker 02:
Unconstitutional as applied to your client with his record?

[00:12:36] Speaker 04:
Facially unconstitutional is my best argument in every possible application, like in every possible solenoid.

[00:12:45] Speaker 02:
every possible application because... Including a supply to a habitual violent offender.

[00:12:51] Speaker 04:
Well, yes, because the nature of the offense applying to all felons who are covered as Americans, are covered as a part of the class of the people guaranteed those rights under the Second Amendment, that the government, once it's established that conduct,

[00:13:12] Speaker 02:
uh... implicates the second amendment, the government has the burden to show that the statute meets the strict... There's been a pretty robust debate in the cases on whether the statute is constitutional as applied to low-level non-violent offenders.

[00:13:33] Speaker 02:
I don't know if anyone who's said it's unconstitutional as applied to

[00:13:39] Speaker 02:
habitual violent criminals.

[00:13:42] Speaker 04:
I don't have a case to cite on that in particular, which is why I've

[00:13:48] Speaker 04:
Judge Henderson, I believe my best argument is that it's spatially unconstitutional and that the government can't meet its burden to satisfy the nation's historical tradition of firearm regulation in the founding era.

[00:14:04] Speaker 04:
And that just doesn't exist.

[00:14:06] Speaker 04:
And therefore, they have to go back to the beginning on 922G1.

[00:14:12] Speaker 04:
And it's unconstitutional.

[00:14:13] Speaker 04:
And that's what needs to be applied to my client.

[00:14:18] Speaker 01:
We'll give you a couple of minutes in reply.

[00:14:20] Speaker 04:
Thank you.

[00:14:22] Speaker 01:
Mr. Hobel.

[00:14:35] Speaker 00:
Thank you.

[00:14:35] Speaker 00:
Good morning.

[00:14:36] Speaker 00:
May it please the court?

[00:14:37] Speaker 00:
Mark Hobel for the United States.

[00:14:39] Speaker 00:
The district court did not abuse its discretion in denying further and evidentiary hearing or inquiry based on the based on to to impeach the verdict based on the email of the essentially disgruntled

[00:14:54] Speaker 00:
juror, which we suggest was inadmissible under Rule 606B.

[00:15:00] Speaker 00:
The authorities here, principally Tanner, the United States discussed the showing that must be made or potentially must be made in order to trigger

[00:15:09] Speaker 00:
what's really a very disfavored type of hearing into jury, into juror conduct after a verdict.

[00:15:18] Speaker 00:
There's a strong interest in finality here once the verdict adheres.

[00:15:23] Speaker 00:
Tanner has discussed an extremely strong showing of incompetency that must be made in order to trigger an inquiry left open that possibility.

[00:15:34] Speaker 00:
This court in United States v. Williams Davis discussed that standard and mentioned how it interpreted that to mean that the defendant must show through extrinsic evidence, not through the jurors' statements, which are barred by Rule 606B, that there was some showing of incompetence or other basis to disrupt the finality of the verdict.

[00:15:57] Speaker 00:
Judge

[00:15:58] Speaker 00:
pan sitting in the district court, reasonably found that the defendant had not proffered clear evidence of mental incompetence or dishonesty during voir dire that would justify subjecting that juror to questioning by defense counsel.

[00:16:12] Speaker 00:
That was entirely within her discretion under those authorities.

[00:16:16] Speaker 00:
And I would know.

[00:16:18] Speaker 00:
I think the government does disagree on how much of the email from the jurors covered by Rule 606B.

[00:16:25] Speaker 00:
We'd say the entire email, it's difficult to parse it in the way the defense suggests.

[00:16:30] Speaker 00:
But even if you could.

[00:16:31] Speaker 00:
Twice that.

[00:16:33] Speaker 00:
Right.

[00:16:33] Speaker 00:
Because the suggestion of I have chronic anxiety and depression.

[00:16:39] Speaker 00:
That's nothing to do with anything that's happening inside the black box.

[00:16:44] Speaker 00:
But the context is clearly, I believe in the next line she says, and then here's the effect it had on the deliberations on my mental processes during the deliberations.

[00:16:53] Speaker 02:
The next line is excluded.

[00:16:56] Speaker 00:
But even if rule 606B doesn't cover the two lines that I believe

[00:17:04] Speaker 00:
the defense is suggesting it doesn't, that's not even close to enough to trigger a need for an inquiry of this juror.

[00:17:13] Speaker 00:
I compare the situation to Tanner again, in which there was evidence from jurors that the jurors had essentially been having one big party involving drinking, cocaine, marijuana use throughout the trial.

[00:17:26] Speaker 00:
And even there, the Supreme Court said that the judge was entirely within his discretion to disallow any further evidentiary hearing on that because of the very strong interest in finality of jury verdicts and also the need to protect jurors after they've rendered their service.

[00:17:44] Speaker 00:
So I am happy, unless there are any further questions on that issue, I'm happy to turn briefly to the unpreserved Second Amendment claim.

[00:17:53] Speaker 00:
We have brought up the circuit split on good cause on Rule 12 and whether a defendant needs to show good cause to bring this type of claim for the first time on appeal.

[00:18:02] Speaker 00:
We submit that the majority has the better, clearer reading of the statute and obviously the defense

[00:18:07] Speaker 00:
has not shown good cause for their failure to make a timely motion.

[00:18:11] Speaker 00:
But at this point, the court is fully in a position to do what this court did in Burroughs and Neely and resolve this on plain error because the defense has admitted that plain error applies to this unpreserved claim.

[00:18:26] Speaker 00:
And Section 922 G1 is not plainly unconstitutional

[00:18:32] Speaker 00:
Certainly not facially, certainly not as applied to a felon who was convicted of a violent felony, was on supervised release, as violent felony involved the use of a gun to shoot somebody.

[00:18:47] Speaker 00:
So unless the court has any further questions, we would ask that the court affirm.

[00:18:52] Speaker 00:
Thank you.

[00:18:53] Speaker 01:
Thank you.

[00:18:59] Speaker 01:
Why don't you take two minutes?

[00:19:00] Speaker 04:
Yeah, I don't need that much time to address issues that the government raised.

[00:19:05] Speaker 04:
I would just note that the Tanner decision is a case where the judge actually granted an evidentiary hearing.

[00:19:16] Speaker 04:
And they conducted some level of evidentiary hearing before making a determination as to where 606B specifically kicked in, where

[00:19:29] Speaker 04:
whether there was a need for further inquiry, whether there was a need to disturb all the jurors and bring them all in and address that.

[00:19:42] Speaker 04:
There was a pretty rigorous split in the Tanner decision, and it did recognize the right, the protections and the interplay between the Fifth Amendment, the Sixth Amendment,

[00:19:59] Speaker 04:
and juror competency issues and 606B and where those common law exceptions should be applied.

[00:20:09] Speaker 04:
And I think the case law does not in the end support the government's argument or the district court's ruling that no further inquiry whatsoever was necessary or appropriate.

[00:20:23] Speaker 04:
It was just so preliminary when the denials were made and it was

[00:20:28] Speaker 04:
even to make a statement that you believe the juror was not lying, goes beyond what the record supports, and it was an abuse of discretion.

[00:20:38] Speaker 01:
Mr. Katzoff, you were appointed by the court to represent the client, and we thank you for your able assistance.

[00:20:46] Speaker 04:
You're welcome, Your Honor.

[00:20:47] Speaker 01:
Thank you.