[00:00:00] Speaker 04:
This states versus Calderon.

[00:00:02] Speaker 04:
Counsel for Appellant, please approach and proceed.

[00:00:04] Speaker 02:
Good morning, counsel.

[00:00:16] Speaker 02:
Good morning.

[00:00:17] Speaker 02:
May it please the court.

[00:00:18] Speaker 02:
My name is Elizabeth Garfinkel, and I am representing the appellant, Armando Danny Calderon.

[00:00:24] Speaker 02:
I'd like to reserve two minutes for rebuttal.

[00:00:28] Speaker 02:
Because the bulk of the issues on appeal are related to the conspiracy conviction, I'd like to start there.

[00:00:35] Speaker 02:
When the government uses a middleman to find a seller, as here, in order to find a conspiracy between the seller and the middleman, courts look for a prolonged course of sales and a shared stake between them in the venture.

[00:00:52] Speaker 02:
Here, there was neither.

[00:00:55] Speaker 02:
Jimenez's participation was solely at the behest of the government.

[00:01:00] Speaker 02:
There were no communications with him and Calderon except for that initial request that he forwarded from the informant.

[00:01:09] Speaker 02:
Once he confirmed that Calderon would do the sale, he gave Calderon the informant's phone number, which Calderon used,

[00:01:18] Speaker 02:
to make all the arrangements.

[00:01:20] Speaker 04:
Council, is it your position that there can never be a conspiracy if there's only one sale?

[00:01:30] Speaker 02:
That's not the reason why there's no conspiracy here.

[00:01:33] Speaker 02:
However, I've never seen a case based on a conspiracy with just one sale.

[00:01:37] Speaker 04:
Well, you said that there has to be a prolonged course of sales.

[00:01:42] Speaker 04:
So what case are you relying upon for the proposition that in order for a conspiracy to exist, there must be a prolonged course of sales?

[00:01:51] Speaker 02:
So this is for the middleman cases, Ramirez, Bay, Contreras.

[00:01:56] Speaker 02:
Tell me your absolute best case for that proposition.

[00:02:01] Speaker 02:
Contreras and Bay and Ramirez.

[00:02:03] Speaker 02:
I have to say the three, because there's no case that's exactly these facts.

[00:02:08] Speaker 02:
They're slightly different.

[00:02:09] Speaker 02:
Bay, though, I think I discussed quite a bit in both briefs, and that's the 7th Circuit case, just because it's so detailed.

[00:02:18] Speaker 02:
And in Bay, it very clearly states that with the evidence of payment, with that shared stake, they were able to find that these

[00:02:27] Speaker 02:
repeated sales that there was an agreement for the middleman and the seller together.

[00:02:37] Speaker 01:
Well, the problem with sufficiency of the evidence, it's probably one of the hardest arguments to make because the

[00:02:45] Speaker 01:
The prosecution is entitled to all inferences in favor of the verdict.

[00:02:50] Speaker 01:
So it doesn't have to be strong.

[00:02:52] Speaker 01:
As to the sufficiency of the evidence of conspiracy, the evidence here seems to strongly support an ongoing relationship and a high level of trust between the defendant and Mr. Jimenez.

[00:03:08] Speaker 01:
And doesn't that distinguish this case from the typical buyer-seller case?

[00:03:13] Speaker 01:
And I think we also, don't we have some kind of, there's some video where we can see something dropped, a package?

[00:03:23] Speaker 02:
I'll get to the video in a second, if I may, if I can answer the first part of the question, Your Honor.

[00:03:27] Speaker 02:
Here, the relationship that was before was only a buyer-seller relationship.

[00:03:34] Speaker 02:
There's no evidence on the amounts of sales.

[00:03:37] Speaker 02:
but the frequency of sales, the kinds of things that courts consider as to whether or not there's a conspiracy.

[00:03:42] Speaker 02:
But I cite numerous cases in the briefs where just having one or two sales does not establish a conspiracy between the buyer and the seller.

[00:03:56] Speaker 02:
Loveland is an excellent case on that.

[00:03:58] Speaker 02:
It's also a Ninth Circuit case.

[00:04:01] Speaker 01:
So you think this is just a buyer-seller case?

[00:04:04] Speaker 02:
it's a complicated buyer-seller case because there's no actual sale.

[00:04:06] Speaker 01:
But I'm going to kind of push back on that because if the trial attorney, you were not the trial attorney, right?

[00:04:12] Speaker 01:
No.

[00:04:12] Speaker 01:
The trial attorney in this case didn't think it was a buyer-seller case because the trial attorney didn't even request a buyer-seller instruction.

[00:04:22] Speaker 02:
As I pointed out, there was ineffective assistance.

[00:04:24] Speaker 02:
The trial attorney missed quite a bit, unfortunately.

[00:04:28] Speaker 02:
There is no evidence of agreement.

[00:04:32] Speaker 02:
There's a business introduction.

[00:04:36] Speaker 02:
That's even what the government called it.

[00:04:38] Speaker 02:
Let me give an example.

[00:04:39] Speaker 01:
Isn't there some vouching involved, too?

[00:04:42] Speaker 02:
all at the government's informants urging.

[00:04:45] Speaker 02:
The informant asked him, is he trustworthy?

[00:04:48] Speaker 02:
Jimenez is at the meeting, he arrives at the day of the sale because the informant says, I want you there.

[00:04:59] Speaker 02:
The government agent testified

[00:05:01] Speaker 02:
We wanted Jimenez there, but there is no communication between Jimenez and Calderon.

[00:05:08] Speaker 02:
They have their phones, they have all the surveillance, but there's never an indication that Calderon wanted Jimenez there.

[00:05:15] Speaker 00:
How can there be no communication when the quantity that we're talking about isn't just a gram or two, was it?

[00:05:25] Speaker 00:
It was about over 4,000.

[00:05:27] Speaker 00:
You have to have a conversation in order to sell over, unless I'm mistaken, 454 grams to a pound, and this is a lot of methamphetamine.

[00:05:45] Speaker 02:
There was no methamphetamine, none arrived.

[00:05:50] Speaker 02:
Except for Jimenez brought Akito at the government's request.

[00:05:53] Speaker 02:
There was no communication between Jimenez.

[00:05:55] Speaker 02:
There's no evidence of any communication after the initial text that Jimenez sent saying, my friend will do this to you, not my friend and I will do this to you.

[00:06:06] Speaker 02:
It would be speculative to find this communication that Your Honor is asking about.

[00:06:10] Speaker 04:
Does the communication have to be direct?

[00:06:14] Speaker 02:
There was no meeting of the minds.

[00:06:16] Speaker 02:
There was no agreement.

[00:06:18] Speaker 02:
I'm going to give you an example.

[00:06:19] Speaker 02:
Let's say, Your Honor,

[00:06:23] Speaker 02:
A friend asked for an electrician to do some work for you.

[00:06:27] Speaker 02:
And he's like, oh, yeah, my cousin.

[00:06:29] Speaker 02:
He's an electrician.

[00:06:30] Speaker 02:
He's done some work for me.

[00:06:32] Speaker 02:
And your friend's like, OK, because we're going to have to do it really fast.

[00:06:34] Speaker 02:
I don't know if we'll get permits.

[00:06:35] Speaker 02:
Does that make you a conspirator?

[00:06:37] Speaker 02:
Well, that's legal.

[00:06:38] Speaker 02:
It's not a crime.

[00:06:39] Speaker 01:
It's not a crime.

[00:06:41] Speaker 01:
I hired an electrician before.

[00:06:43] Speaker 02:
But say your friend wanted to do it without permits.

[00:06:46] Speaker 02:
and you're like, yeah, he's fine, he doesn't need permits.

[00:06:49] Speaker 02:
Anyway, it's a hypothetical.

[00:06:50] Speaker 02:
The point being, that's all we have.

[00:06:53] Speaker 02:
There's no evidence of anything else except that they knew each other.

[00:06:57] Speaker 02:
And in the past, at some point in time, no defined amount, no defined quantity, no defined...

[00:07:03] Speaker 02:
how many times Jimenez had gotten... Why would Jimenez show up if Calderon didn't talk with him about the... Because the informant kept asking him to be there.

[00:07:13] Speaker 04:
Right, but then Calderon had to convey the message to Jimenez to show up.

[00:07:19] Speaker 02:
Well, no.

[00:07:21] Speaker 02:
They never... Excuse me, Your Honor, but no, because he didn't want him to... He didn't care if Jimenez showed up.

[00:07:27] Speaker 02:
It was Calderon's deal.

[00:07:29] Speaker 01:
Well, but you don't get invited to parties with this amount of dope unless there's some existing relationship.

[00:07:36] Speaker 01:
So what the inference that we can, so we're not entitled to, you know, if it had just been a little teeny baggie or something like that or a little teeny amount, it's almost common knowledge.

[00:07:47] Speaker 01:
I could probably ask all the students here, would you be able to sell this amount of dope or arrange this kind of sale without having some level of trust

[00:07:57] Speaker 01:
in the network of drug dealing.

[00:08:05] Speaker 01:
You don't get to start out big.

[00:08:07] Speaker 02:
Right.

[00:08:08] Speaker 02:
The informant asked Jimenez, he wanted to buy 10 to 12 kilos.

[00:08:12] Speaker 02:
Jimenez was like, I can't do that.

[00:08:14] Speaker 02:
I know someone who can.

[00:08:15] Speaker 02:
At that point, he was all in Calderon's court.

[00:08:18] Speaker 02:
Calderon contacted the informant.

[00:08:22] Speaker 02:
made arrangements with them.

[00:08:22] Speaker 02:
And in the meantime, the informant kept asking Jimenez to have been there.

[00:08:26] Speaker 02:
The government staged a money flash when just Jimenez was there.

[00:08:29] Speaker 02:
And Jimenez says, I don't know why you're doing this.

[00:08:32] Speaker 02:
Show this to Calderon.

[00:08:34] Speaker 02:
And finally, after all of that, Calderon's not showing up.

[00:08:37] Speaker 02:
The informant says, what about this other drugs you have?

[00:08:41] Speaker 02:
Can you go get the drugs that you have?

[00:08:42] Speaker 02:
Not the drugs that you and Calderon have, that you personally have.

[00:08:46] Speaker 02:
Jimenez leaves.

[00:08:47] Speaker 02:
He meets with his co-conspirator in another account that Calderon's not charged with.

[00:08:52] Speaker 02:
cauldron, I mean, the former, excuse me, Mr. Jimenez even says, I don't know him that well, he's my wife's cousin.

[00:08:59] Speaker 02:
And then he shows up with his kilo in his carpet.

[00:09:03] Speaker 02:
Calderon has nothing.

[00:09:04] Speaker 02:
He does arrive with some other people, so maybe that's what you guys are referring to.

[00:09:07] Speaker 04:
What about the video that Judge Callahan referenced previously that was used to show a link between the two?

[00:09:14] Speaker 02:
So the video is following Calderon all this time.

[00:09:19] Speaker 02:
He arrives at Jimenez's house.

[00:09:21] Speaker 02:
He doesn't go in the house.

[00:09:23] Speaker 02:
They see him walk by a Mustang.

[00:09:26] Speaker 02:
and leave.

[00:09:26] Speaker 02:
It's very hard to see.

[00:09:27] Speaker 02:
There is a pause next to the Mustang, also next to a garbage can, and he no longer has a bag in his hands.

[00:09:33] Speaker 02:
He leaves.

[00:09:34] Speaker 01:
Later on, when the police... So there's a drop of something, and in light of all of the other evidence, couldn't the imprints be that it was a drop of dope?

[00:09:44] Speaker 02:
Correct.

[00:09:44] Speaker 02:
But if that happened, that has nothing to do with the sale, because it wasn't brought to the sale.

[00:09:49] Speaker 02:
There's no evidence that Jimenez knows about this.

[00:09:51] Speaker 04:
But there's evidence of an arrangement between the two, isn't there?

[00:09:55] Speaker 02:
There's no evidence that Calder- Why would he drop the drugs at- Because he showed up empty handed.

[00:10:04] Speaker 02:
He didn't want to have anything with him.

[00:10:06] Speaker 02:
We don't know.

[00:10:06] Speaker 02:
This is speculation.

[00:10:07] Speaker 02:
We're not allowed to base the conviction on speculation.

[00:10:09] Speaker 04:
But all of this was presented to the jury though.

[00:10:11] Speaker 04:
That's the difficulty you have with this case is all of this evidence was presented to the jury and the jury

[00:10:17] Speaker 04:
reach the result that there was an agreement between the two.

[00:10:21] Speaker 02:
Because the jury was not instructed on the buyer-seller arrangement, so I'll move on to the instructional.

[00:10:25] Speaker 04:
Let me ask you this before you do that.

[00:10:26] Speaker 04:
So Bay is a 7th Circuit case and it's not binding on us, right?

[00:10:31] Speaker 02:
But Ramirez is.

[00:10:32] Speaker 04:
I'm sorry?

[00:10:33] Speaker 02:
Ramirez is.

[00:10:34] Speaker 04:
That's why I ask you for your absolute best case.

[00:10:36] Speaker 04:
And you gave me three of them, but Bay is not binding on us.

[00:10:40] Speaker 04:
So that's not your absolute best case, because we don't have to follow it.

[00:10:44] Speaker 04:
So are you left with Ramirez as your best case?

[00:10:47] Speaker 02:
Well, Ramirez is the best case.

[00:10:48] Speaker 02:
It's just not as detailed.

[00:10:49] Speaker 02:
But it makes the same exact point, that there must be prolonged sales and a shared stake.

[00:10:53] Speaker 02:
And here, there's no evidence of Jimena's shared stake in this case.

[00:10:58] Speaker 02:
To go on to the jury instruction era.

[00:11:00] Speaker 01:
Yeah, I want to focus on that because obviously you have to show plain error because trial counsel did not request the buyer-seller instruction.

[00:11:13] Speaker 01:
And trial counsel did not try this case as a buyer-seller case.

[00:11:18] Speaker 01:
So I'm putting myself, having been a trial judge in the position

[00:11:22] Speaker 01:
When the lawyers have a theory of the case and the way that they argue the case and they don't ask for an instruction in that, am I supposed to interfere and give that instruction anyway when it's not their theory of the case?

[00:11:36] Speaker 01:
Yes.

[00:11:37] Speaker 01:
So you're saying, sua sponte, that had to be given.

[00:11:40] Speaker 01:
But you have to show plain error that they, you know, I'm supposed to interfere with the theory of the case.

[00:11:48] Speaker 02:
Because it doesn't conflict with the theory of the case.

[00:11:51] Speaker 02:
His theory of the case was that this was a robbery.

[00:11:53] Speaker 02:
There was still no agreement between the two.

[00:11:55] Speaker 01:
And in any event, the... So how, if his theory of the case that was a robbery, how does it make it a buyer-seller case?

[00:12:05] Speaker 02:
They're not mutually exclusive, is the point.

[00:12:08] Speaker 02:
The theory was that there was no conspiratorial agreement.

[00:12:14] Speaker 02:
To try to get this in quickly, because I'm running out of time,

[00:12:17] Speaker 02:
under the press and under loveland this uh... the buyer seller rule is failure of proof not just a defense it is a failure of proof is an element

[00:12:30] Speaker 02:
of the failure of an element, a necessary element of conspiracy, because it's not enough to just have a single sale.

[00:12:39] Speaker 02:
There has to be proof of an intent for redistribution and a shared stake in the venture.

[00:12:47] Speaker 02:
What there's substantial evidence of a buyer-seller relationship, as there is here, they had a buyer-seller relationship.

[00:12:53] Speaker 02:
That was established.

[00:12:54] Speaker 02:
And a jury could have found Jimenez was functioning as the buyer's agent.

[00:12:59] Speaker 02:
There was ample evidence for this.

[00:13:00] Speaker 02:
when you look at the myriad of cases I cited in the brief.

[00:13:05] Speaker 02:
And in that situation, the jury was required to instruct that.

[00:13:08] Speaker 02:
The failure to provide this necessary element, even if it was just a defense theory, but it's also an element, that that itself creates substantial rights and plain error.

[00:13:19] Speaker 02:
And to have that conviction based on the jury's not necessarily finding these necessary elements, that that makes it

[00:13:30] Speaker 02:
That takes the fairness and integrity of the proceedings into question.

[00:13:36] Speaker 02:
I see I have under two minutes and I want to make sure I have time for rebuttal.

[00:13:39] Speaker 00:
I'm just waiting to hear your response to Judge Callahan.

[00:13:45] Speaker 02:
I thought I did.

[00:13:47] Speaker 02:
Excuse me, what was his name?

[00:13:47] Speaker 00:
Well, I thought it could be in more detail with respect to ineffective assistance of counsel.

[00:13:54] Speaker 00:
That, I mean, the plain error, what is it?

[00:13:58] Speaker 01:
The plain error?

[00:13:59] Speaker 01:
Well, the problem is the defense that you put on after a trial, you know it didn't work.

[00:14:04] Speaker 01:
And so it's really easy on to come here as appellate counsel and go, well, that didn't work, so it must be ineffective assistance.

[00:14:11] Speaker 01:
Well, that's not the standard.

[00:14:14] Speaker 02:
I understand that, Your Honor, but the cases, Moe and Loveland, all these explain that you need, and Ramirez tried to, I'm sorry, Mendoza tried to get to it, but all these cases found insufficient evidence that they didn't necessarily get to the instructional layer, but it's, I'm scared I'm not gonna have time for more.

[00:14:35] Speaker 04:
Relax.

[00:14:37] Speaker 04:
You'll have time for rebuttal.

[00:14:38] Speaker 04:
I'll give you a couple of minutes for rebuttal if you could just answer the question.

[00:14:41] Speaker 02:
Yeah, so the error, it's well established that it is plain error to not provide the instruction that is supported by substantial evidence as there is substantial evidence here.

[00:14:51] Speaker 02:
The jury could have found a buyer-seller relationship requiring the instruction.

[00:14:56] Speaker 02:
That's separate from the IAC.

[00:14:58] Speaker 01:
Well, you can bring this up on habeas, is it seems to be a bit inchoate here.

[00:15:03] Speaker 01:
And if we were to decide against you on the IAC here, then that is a problem for you on habeas, right, where you might be able to put more evidence in.

[00:15:17] Speaker 01:
We don't know why the attorney didn't go that way.

[00:15:21] Speaker 02:
At this point, we don't know why.

[00:15:23] Speaker 02:
But as I explained, there's no possible reason to not request this construction.

[00:15:28] Speaker 04:
Well, we have to decide if the record is sufficiently developed that we can make that determination.

[00:15:33] Speaker 04:
So do you think the record is sufficiently developed that we can make the determination when there was a trial strategy that was put forth?

[00:15:43] Speaker 02:
I do, because there's no conceivable reason to not bring that up.

[00:15:47] Speaker 04:
It's a little bit inconsistent with the robbery theory, because then you're conceding that by the buyer-seller relationship, you're conceding that it was consensual.

[00:15:58] Speaker 04:
And the robbery is non-consensual.

[00:16:00] Speaker 04:
So they're a little bit inconsistent.

[00:16:02] Speaker 02:
The trial counsel made a much more severe error than I mentioned in the brief in terms of conceding a theory of possession.

[00:16:13] Speaker 02:
That was not support.

[00:16:15] Speaker 04:
Well, that's a little bit different argument.

[00:16:17] Speaker 02:
That's a different argument.

[00:16:18] Speaker 02:
So that, if we were going to do an IC.

[00:16:20] Speaker 02:
However, we don't need to get to the IC because the plane error

[00:16:25] Speaker 02:
It's established in the case law.

[00:16:28] Speaker 02:
So I guess I'm not quite understanding Judge Callahan's question as to why there would not be plain error.

[00:16:33] Speaker 02:
I understand the frustration that trial counsel didn't raise that.

[00:16:38] Speaker 04:
Well, the problem is the definition of plain error is error that's so plain that the presiding judge should have recognized it.

[00:16:47] Speaker 04:
without it being brought to the judge's attention.

[00:16:50] Speaker 04:
So that's a very high standard.

[00:16:51] Speaker 02:
I understand that.

[00:16:52] Speaker 02:
And as I'm saying that in these cases, and Moe, I believe, was a plain-error case, if I'm wrong.

[00:17:00] Speaker 02:
Excuse me if I'm wrong.

[00:17:01] Speaker 02:
In any event, it is plain-error to not provide the buy or sell instruction, because it's mentioned in the jury instructions for one thing, and it's a well-established.

[00:17:09] Speaker 04:
But it's not always.

[00:17:09] Speaker 04:
In a conspiracy case, it's not always required.

[00:17:14] Speaker 04:
And a case has to be made for the buyer-seller instruction in a conspiracy case.

[00:17:20] Speaker 04:
And that's Judge Callahan's point, is that the facts in this case don't fit neatly into the buyer-seller relationship.

[00:17:29] Speaker 02:
There is still substantial evidence of that relationship.

[00:17:32] Speaker 04:
We understand your argument.

[00:17:33] Speaker 04:
All right, thank you, counsel.

[00:17:34] Speaker 04:
We'll give you a couple minutes for rebuttal.

[00:17:37] Speaker 04:
OK, thank you.

[00:17:37] Speaker 04:
OK, we'll hear from the government.

[00:17:53] Speaker 03:
Good morning, Your Honors, and may it please the Court, Molly Smolin for the United States.

[00:17:57] Speaker 03:
Good morning.

[00:17:58] Speaker 03:
I would like to begin by discussing the instructional issue that Your Honors were just discussing with opposing counsel.

[00:18:06] Speaker 03:
And I'd like to begin by pointing out that Moe was, in fact, not a plain error case.

[00:18:11] Speaker 03:
In Moe, defense counsel had actually requested the buyer-seller instruction.

[00:18:17] Speaker 03:
And this court held that it was not plain error for the district court to decline to give that instruction, even though in Moe there was evidence of prolonged course of sales between the two alleged co-conspirators in amounts that were much smaller than what was considered in this case.

[00:18:38] Speaker 03:
And moreover, this court held that the instructions as a whole adequately communicated to the jury what they needed to find to convict on conspiracy.

[00:18:49] Speaker 03:
And the same things that were present in Moe that made it not error at all, let alone plain error, are present here.

[00:18:58] Speaker 03:
Because the instructions in Moe communicated to the jury

[00:19:02] Speaker 03:
that a conspiracy is a criminal partnership.

[00:19:06] Speaker 03:
That was in the jury instructions here at volume one, excerpt of record 23.

[00:19:10] Speaker 03:
And that a conspiracy requires a plan to commit a further crime.

[00:19:16] Speaker 03:
That was also present here in the same instruction.

[00:19:19] Speaker 03:
So Moe disposes of the idea that there was an issue here with the court not giving.

[00:19:28] Speaker 03:
the buyer-seller instruction.

[00:19:30] Speaker 03:
But there is another case that even more strongly supports the district court's decision here, which is United States versus Montgomery.

[00:19:39] Speaker 03:
And in Montgomery, this court stated that when a defendant doesn't rely upon a particular defense theory at trial, the district court's failure to offer an instruction on that theory, sua sponte, is not plain error.

[00:19:54] Speaker 03:
And that forecloses the defendant's position here.

[00:19:57] Speaker 01:
So you say that Mr. Jimenez and defendant were in the same side of the transaction, ruling out a buyer-seller exception.

[00:20:08] Speaker 01:
But couldn't a reasonable juror also view Mr. Jimenez as being on the side of the buyer, who was the confidential, reliable informant?

[00:20:19] Speaker 01:
If the evidence is susceptible to that reading, wasn't a buyer-seller instruction required?

[00:20:25] Speaker 03:
No, Your Honor.

[00:20:26] Speaker 03:
Montgomery actually forecloses that conclusion here because the defense theory had nothing to do with a buyer-seller relationship between Calderon and Jimenez.

[00:20:39] Speaker 03:
Instead,

[00:20:40] Speaker 03:
The defense theory was apparently that there was a planned robbery that was going to take place.

[00:20:45] Speaker 03:
So the buyer-seller theory was inconsistent with the theory that the defense was putting forward at trial.

[00:20:53] Speaker 03:
But additionally, as Montgomery held, it cannot be plain error for a district court not to sue a sponte, give this instruction when that theory is not relied upon by the defense.

[00:21:04] Speaker 01:
I struggled with the fact that having been a trial judge, if someone doesn't ask for something and I listen to what their theory of the case is, it would be a different situation if the counsel had asked for it.

[00:21:20] Speaker 01:
Maybe in that situation would you concede if they had asked for it that it should have been given?

[00:21:26] Speaker 03:
Not necessarily, Your Honor, because that was the circumstance in Moe where this court held that it was not error on a higher standard than plain error, which we have here.

[00:21:37] Speaker 03:
The defense was, excuse me, the instruction was requested.

[00:21:41] Speaker 03:
The evidence more strongly than here supported a buyer-seller relationship between the alleged co-conspirators, but it was still not error because the standard is whether the instructions as a whole adequately communicate to the jury

[00:21:56] Speaker 03:
the law on which they must base a conviction.

[00:22:00] Speaker 01:
Well, I'm concerned that, just hypothetically, this didn't happen.

[00:22:04] Speaker 01:
If I had decided to give that instruction as the trial judge and defense counsel objected because that wasn't their theory of the case, if I had given it, I might have been in some big trouble here on appeal.

[00:22:17] Speaker 03:
Potentially, Your Honor.

[00:22:20] Speaker 04:
The counsel opposing counsel relies on the Ramirez case

[00:22:23] Speaker 04:
in light of the fact that the Bay case is a 7th Circuit case, and why doesn't that case

[00:22:30] Speaker 04:
dictate a ruling in favor of the defense.

[00:22:33] Speaker 04:
Ramirez.

[00:22:34] Speaker 03:
The facts in Ramirez are vastly different from the facts of this case.

[00:22:39] Speaker 03:
In Ramirez, there was no evidence indicating that Ramirez had any kind of involvement in the go-between, the middleman's drug sales.

[00:22:48] Speaker 03:
While he was present in a vehicle at a couple of those sales, he had no contact whatsoever with

[00:22:57] Speaker 03:
the end buyer and there was no additional evidence where here the record is replete with evidence supporting a conspiracy, not a buyer-seller relationship.

[00:23:09] Speaker 01:
Well, I think you rely on, you say that as to the sufficiency of the evidence,

[00:23:15] Speaker 01:
Is there a case that supports your assertion that Mr. Imenis continued vouching for the quality of defendant's product shows a shared stake in the transaction?

[00:23:25] Speaker 01:
What's your case on that?

[00:23:27] Speaker 01:
I couldn't find a case on that.

[00:23:29] Speaker 03:
So, Your Honor, I believe that United States versus Bay, the Seventh Circuit case that opposing counsel relies on so heavily actually supports that.

[00:23:39] Speaker 03:
In Bay, one of the facts that supported the finding of conspiracy there were the reassurances that were given that the seller was a trustworthy person, and that's that same sort of- So, but Bay's not controlling on us.

[00:23:55] Speaker 01:
Do you have a Ninth Circuit case for me?

[00:23:57] Speaker 03:
Not on that point specifically, Your Honor, but I would point out that the buyer-seller rule is simply not applicable here.

[00:24:07] Speaker 03:
The buyer-seller rule is a narrow exception to conspiracy liability, and its purpose is to avoid charging end users as co-conspirators.

[00:24:17] Speaker 01:
Well, okay, so I think Appellant has basically conceded

[00:24:22] Speaker 01:
that you're entitled to every inference in favor of the verdict.

[00:24:26] Speaker 01:
So tell us what are all the facts in this case and the inferences that show that there was sufficient evidence.

[00:24:33] Speaker 03:
Certainly, Your Honor.

[00:24:35] Speaker 01:
Give us your best case for sufficiency.

[00:24:39] Speaker 03:
My best case for sufficiency is probably a combination of Moe, which is a Ninth Circuit case.

[00:24:48] Speaker 01:
Tell me what things the jury heard that support sufficiency of the evidence and the inference from that.

[00:24:58] Speaker 03:
Yes, Your Honor.

[00:25:00] Speaker 03:
So beginning on August 28th of 2018, when the CI and Jimenez met for a separate drug sale, the CI first asks Jimenez if he can provide large, multi-kilogram quantities of methamphetamine.

[00:25:14] Speaker 03:
And Jimenez doesn't have that.

[00:25:16] Speaker 03:
So a few days later, on September 3rd, he texts the CI to say that a friend

[00:25:22] Speaker 03:
will give you those multiple kilogram quantities of methamphetamine for $4,700 a kilo if the CI buys five or more.

[00:25:31] Speaker 03:
This is an inference that Jimenez now has an agreement with an unknown third party to sell these large quantities of drugs to the CI.

[00:25:42] Speaker 03:
Then, on September 11th, Jimenez meets with the CI and calls Calderon while he's in the CI's presence asking him to join their meeting.

[00:25:54] Speaker 01:
So he has his phone number.

[00:25:56] Speaker 03:
Yes, Your Honor.

[00:25:58] Speaker 03:
And at this point, it's clear that that friend that Jimenez was referring to on September 3 is Calderon, because Calderon arrives and begins reassuring the CI that he has good drugs.

[00:26:10] Speaker 03:
He's making these promises that he'll exchange the drugs if the CI isn't pleased with the quality, that he'll even take back the loose powder at the bottom of the bags and replace it with rock, with a better drug, if the CI isn't pleased.

[00:26:26] Speaker 03:
Now, here we also have Jimenez vouching for Calderon's trustworthiness after Calderon leaves that September 11th meeting.

[00:26:37] Speaker 03:
The CI asks Jimenez, can we trust him?

[00:26:40] Speaker 03:
And Jimenez responds, yes, yes, he's my cousin.

[00:26:43] Speaker 03:
You know we're good.

[00:26:44] Speaker 03:
This implies, strongly implies, an agreement between Calderon and Jimenez.

[00:26:54] Speaker 03:
There's an interim call between Calderon and the CI to set up the next meeting, which happens on September 21st.

[00:27:02] Speaker 03:
And this is at the Home Depot parking lot in East Palo Alto.

[00:27:05] Speaker 03:
And here I'd like to push back on something opposing counsel said about there being no evidence of communication between Jimenez and Calderon after that initial contact, because here at volume six, excerpts of record 1337, Jimenez is passing on a message to the CI that Calderon had wanted to meet a little later that day, and that Calderon is on his way.

[00:27:31] Speaker 03:
that's obvious communication between Jimenez and Calderon as co-conspirators.

[00:27:36] Speaker 03:
Nothing else makes sense there.

[00:27:39] Speaker 03:
And at that September 21st meeting, once Calderon arrives, there's additional evidence in which Calderon uses language

[00:27:47] Speaker 03:
that only makes sense in the context of the conspiracy between Calderon and Jimenez.

[00:27:54] Speaker 03:
He starts talking about how, when they're discussing the detailed plans for how the sale is going to go down, this is at volume six, excerpts of record 1348.

[00:28:05] Speaker 03:
Calderon tells the CI, we would put the place.

[00:28:09] Speaker 03:
And Jimenez chimes in with the suggestion that he accompany the CI to the drug sale.

[00:28:15] Speaker 03:
It's on the same page.

[00:28:16] Speaker 03:
And Jimenez says, and that way, we'll do everything, and I'll go with you.

[00:28:22] Speaker 03:
That change of language, additional evidence of coordination between Calderon and Jimenez.

[00:28:31] Speaker 03:
And Calderon goes on to explain his role in the conspiracy, how he will be, he says at a six excerpts of record 1352, if something comes bad, I'll be in charge of changing them for you.

[00:28:46] Speaker 03:
He's again explaining to the CI what his role will be, Calderon's role, in this drug conspiracy.

[00:28:53] Speaker 03:
And he reassures the CI, we're here for you.

[00:28:57] Speaker 03:
Again, the strong implication here is that he and Jimenez are working together to make the sale for the CI.

[00:29:04] Speaker 03:
Then on the 24th of September, the day before the planned sale, Calderon calls the CI and again is using that we language.

[00:29:13] Speaker 03:
At six excerpts of record, 1355.

[00:29:16] Speaker 03:
We're almost here, man.

[00:29:19] Speaker 03:
At 1357.

[00:29:22] Speaker 03:
Perfect.

[00:29:22] Speaker 03:
Yes, don't worry.

[00:29:23] Speaker 03:
We're 100% ready now.

[00:29:26] Speaker 03:
At 1358.

[00:29:28] Speaker 03:
We are honest people.

[00:29:29] Speaker 03:
We are working people.

[00:29:32] Speaker 03:
This language only makes sense

[00:29:34] Speaker 03:
in the context of a conspiracy.

[00:29:37] Speaker 03:
And then on the September 25th, the day of the planned sale, there's additional evidence of coordination between Jimenez and Calderon, because at volume six, excerpts of record 1361, there's a phone call between Jimenez and the CI, where Jimenez assures the CI that he has just talked to Calderon.

[00:29:58] Speaker 03:
Why would he do that?

[00:30:00] Speaker 03:
except that he was in a conspiracy with Calderon.

[00:30:03] Speaker 03:
And Jimenez vouches for Calderon yet again at 1361.

[00:30:07] Speaker 03:
If he says he is bringing it, well, I say he is bringing it.

[00:30:12] Speaker 03:
And then when Jimenez and the CI have met, Jimenez again tells the CI that Calderon said yesterday that he was ready.

[00:30:23] Speaker 03:
That's at six excerpts of record 1369.

[00:30:26] Speaker 03:
Then there's the fact of the money flash.

[00:30:30] Speaker 03:
Why would that happen if Jimenez was only a buyer's agent?

[00:30:35] Speaker 03:
No, he was working on the seller's side.

[00:30:37] Speaker 03:
He was in a conspiracy.

[00:30:39] Speaker 03:
And then there's just the overarching large amount of drugs.

[00:30:43] Speaker 03:
These are multiple kilogram quantities.

[00:30:46] Speaker 03:
These are thousands and thousands of dollars.

[00:30:50] Speaker 03:
And the jury heard expert testimony that a drug dealer would not bring someone unconnected to their conspiracy

[00:30:59] Speaker 01:
So you have expert testimony in the trial that this is how they do it?

[00:31:05] Speaker 03:
Yes, Your Honor.

[00:31:06] Speaker 03:
On top of all the facts, which are from the transcripts of phone calls and meetings.

[00:31:12] Speaker 01:
What about the drop at the Daphne house?

[00:31:15] Speaker 03:
Yes, Your Honor.

[00:31:16] Speaker 03:
The surveillance that captured Calderon with the white bag that was found to have more than 330 grams of methamphetamine that Calderon takes to a car, to Jimenez's car,

[00:31:28] Speaker 03:
that's parked outside of human as his staff house and he leaves this greater than 330 grams of methamphetamine in that car.

[00:31:36] Speaker 03:
That's additional evidence of a strong relationship, a conspiratorial relationship between Calderon.

[00:31:43] Speaker 00:
Does any of this have anything to do with the amount of the drug that you're talking about?

[00:31:49] Speaker 00:
As Judge Callahan alluded to earlier, a 10-gram baggie versus 330 kilograms, that's over 600 pounds.

[00:32:00] Speaker 00:
Does that have anything to do with a conspiracy?

[00:32:03] Speaker 00:
In your mind, I'm just curious about that.

[00:32:06] Speaker 00:
Because it seems like you wouldn't just have a normal bicelle for personal use or one of my friends to get that much.

[00:32:16] Speaker 00:
You're going for something else, isn't that correct?

[00:32:20] Speaker 03:
Well, yes, Your Honor.

[00:32:21] Speaker 03:
Just to be clear, it was 330 grams that were in the white baggie that were placed in human eyes.

[00:32:26] Speaker 00:
I'm sorry, I said kilos.

[00:32:28] Speaker 00:
I'm sorry, it's grams.

[00:32:30] Speaker 03:
Thank you, Your Honor.

[00:32:31] Speaker 03:
But it's relevant to the conspiracy because it is additional evidence that the jury heard that supports a relationship that goes far beyond sort of a broker introducing you to my dealer kind of relationship.

[00:32:47] Speaker 03:
that Calderon is trying to make this out to be here.

[00:32:50] Speaker 01:
So there were six kilos of meth that were found at 223 Daphne also too, right?

[00:32:56] Speaker 01:
Yes.

[00:32:56] Speaker 01:
Is that quantity only attributable to defendant because the jury found them to be in a distribution conspiracy with Mr. Jimenez?

[00:33:04] Speaker 03:
Not necessarily, Your Honor.

[00:33:06] Speaker 03:
Because a conspiracy is an agreement to commit a crime, and it was clear on the record here that what they were talking about was these multiple kilogram quantities.

[00:33:16] Speaker 03:
I believe the initial discussion was 15 kilograms.

[00:33:20] Speaker 03:
It later went down to 12 kilograms.

[00:33:23] Speaker 03:
But regardless of what was found in the Jimenez stash house,

[00:33:28] Speaker 03:
The conspiracy was for this full amount that they were discussing selling, the money that the CI was supposed to be paying out for this deal to be consummated.

[00:33:39] Speaker 04:
Counsel, you've exceeded your time, but could you briefly address the ineffective assistance of counsel issue before you sit down?

[00:33:47] Speaker 03:
Yes, Your Honor.

[00:33:49] Speaker 03:
The government's position is that this court should decline to address Calderon's ineffective assistance of counsel claim on direct appeal.

[00:33:56] Speaker 03:
The record is simply not sufficiently developed for this court to make an informed ruling here.

[00:34:03] Speaker 03:
And this court's general practice is not to address these claims on direct appeal because a 2255 petition allows the record to be fully developed for the district court to pass upon that evidence in the first instance before it reaches this court.

[00:34:20] Speaker 01:
In a 2255, we would know if there were any strategic reasons for making some of the decisions about requesting instructions or theory of the case as far as that goes.

[00:34:37] Speaker 01:
Is that correct?

[00:34:38] Speaker 03:
At the very least, it would give trial counsel the opportunity to explain why he made the choices that he did on all of those points.

[00:34:49] Speaker 04:
All right, thank you, Counselor.

[00:34:50] Speaker 04:
Any additional questions?

[00:34:52] Speaker 04:
All right, let's put two minutes for rebuttal on the clock.

[00:35:00] Speaker 02:
First of all, I just want to say that Moe, the case that addressed a very different instructional situation, it found no error, plain error, because the instructions in Moe said, did tell them that they had to have an agreement, told the jury they had to have an agreement to commit a crime charged in the indictment.

[00:35:21] Speaker 02:
In that very unique situation, the indictment only charged

[00:35:25] Speaker 02:
downstream sales, so the jury would have had to have concluded that there was an agreement for redistribution in the unique facts of Mo.

[00:35:33] Speaker 02:
Was Mo a plain-error case?

[00:35:36] Speaker 02:
No, it was not.

[00:35:37] Speaker 02:
I didn't remember that particular part, but we don't have an example of a buyer-seller agreement

[00:35:45] Speaker 02:
plain-error case in the Ninth Circuit.

[00:35:47] Speaker 02:
We do in the Seventh Circuit, and that is MIMS.

[00:35:50] Speaker 02:
And I discussed that in the briefs.

[00:35:52] Speaker 02:
The reply brief, I addressed this as well, and all the points raised by my friend on the other side regarding the facts.

[00:36:06] Speaker 02:
These facts were all set up by the government.

[00:36:09] Speaker 02:
The amount of methamphetamine they were asked for.

[00:36:13] Speaker 02:
The money flash, they staged, the government staged the money flash just in front of Jimenez.

[00:36:19] Speaker 02:
How can that be a sign of Jimenez and Calderon's agreement when that was staged by the government?

[00:36:23] Speaker 02:
The council, was there an entrapment defense?

[00:36:26] Speaker 02:
No, an entrapment is a different standing.

[00:36:29] Speaker 02:
It's not that Mr. Calderon could have sat aside entrapment.

[00:36:34] Speaker 02:
under these facts.

[00:36:35] Speaker 04:
Your argument is it was set up by the government, but if it's not entrapment, what difference does it make that the government informant was involved?

[00:36:44] Speaker 02:
Because the signs of the conspiracy, Your Honor, those particular facts

[00:36:49] Speaker 02:
were set up for the government to make it look like a conspiracy.

[00:36:52] Speaker 02:
However, that does not actually show their agreement.

[00:36:56] Speaker 02:
Having Jimenez there because the government asked him to be there does not mean that Calderon asked Jimenez to be there.

[00:37:02] Speaker 02:
It's very different.

[00:37:03] Speaker 01:
Do you disagree with any of the facts that the government put forward?

[00:37:06] Speaker 01:
Because there were phone calls and the government gave a pretty elaborate

[00:37:12] Speaker 01:
factual presentation of evidence that would certainly look like a lot of smoke for a conspiracy.

[00:37:20] Speaker 02:
I discussed the points in the briefs in my reply brief quite a bit.

[00:37:24] Speaker 02:
So the wheeze and eyes sound very... Okay, I don't want to go the interpretation.

[00:37:32] Speaker 01:
Did she say anything that was factually wrong?

[00:37:38] Speaker 02:
I don't know that, Your Honor.

[00:37:40] Speaker 02:
I can't promise that to answer the question.

[00:37:42] Speaker 02:
I will say that this idea of the phone call, there was a... Well, I've taken you over.

[00:37:50] Speaker 01:
I just wanted to thank you.

[00:37:52] Speaker 02:
Could you sum up, please?

[00:37:54] Speaker 02:
All right.

[00:37:54] Speaker 02:
Just that, what is it going to say with the phone call?

[00:37:59] Speaker 02:
They had each other's phone numbers.

[00:38:00] Speaker 02:
That doesn't mean that they weren't coordinating on the side to bring the drugs.

[00:38:04] Speaker 02:
And also, Calderon did arrive with other people who the police did not stand.

[00:38:08] Speaker 02:
But that was not Jimenez.

[00:38:09] Speaker 02:
They might have been separate conspiracies, but not the charged conspiracy.

[00:38:13] Speaker 02:
And at the end, there were no drugs.

[00:38:15] Speaker 02:
All right.

[00:38:15] Speaker 02:
Thank you, counsel.

[00:38:16] Speaker 04:
Thank you to both counsels for your helpful arguments.

[00:38:19] Speaker 04:
The case just argued is submitted for decision by the court.