[00:00:10] Speaker 04:
Good morning, and may it please the court.

[00:00:12] Speaker 04:
Hunter Haney for the appellant, Cao Hong.

[00:00:14] Speaker 04:
I'd like to reserve three minutes for rebuttal, and I'll watch my clock.

[00:00:20] Speaker 04:
Thank you, counsel.

[00:00:20] Speaker 04:
Unless the court prefers otherwise, I plan to address the sufficiency and the hearsay issues before briefly touching upon the instructional errors if time permits.

[00:00:29] Speaker 04:
Insufficient evidence supported the conspiracy charge in this case because there was no proof that Hong entered in a legal agreement with anyone, including his alleged referrer, Quyen,

[00:00:39] Speaker 04:
He's alleged associate sue or the unknown co-conspirator that the government has devised for the first time on appeal.

[00:00:48] Speaker 04:
So turning to the government's primary theory first that Quinn brokered a transaction with Hong.

[00:00:53] Speaker 04:
This was based entirely upon recorded phone calls with an informant.

[00:00:57] Speaker 04:
But those phone calls established at most a prior relationship

[00:01:01] Speaker 04:
not the required illegal agreement.

[00:01:04] Speaker 04:
On the first phone call, Quinn referred the informant to Hong, but one referral on its own is not sufficient.

[00:01:11] Speaker 04:
You need some interdependence between the co-conspirators.

[00:01:15] Speaker 04:
This referral revealed no prior business or prior communications, any sort of coordination and planning.

[00:01:23] Speaker 04:
as this court and others have required.

[00:01:25] Speaker 01:
Is your theory that, in effect, Hong was an independent contractor who Quinn referred the informant to?

[00:01:39] Speaker 01:
But that's just that he just happened to know there was a meth seller out there so that when the informant called Quinn and said, can you sell me meth?

[00:01:47] Speaker 01:
He said, no, but I know somebody who can.

[00:01:49] Speaker 04:
He was, in essence, he was operating at arm's length from Quinn.

[00:01:53] Speaker 04:
Quinn, you know, if you look at all of the broker cases, for example, the government has cited, we went through them at length in our reply brief, you see much more detailed involvement by the co-conspirator.

[00:02:05] Speaker 01:
What do we do with what occurs on the day of the buy?

[00:02:14] Speaker 01:
when with the same day that by later in the day when when the CHS calls Hong and says I'm Quinn's friend Hong says Quinn he says Quinn's friend Quinn just had a talk with you earlier and then he agrees to exactly the same deal that he had

[00:02:32] Speaker 01:
discussed with Quinn the day before.

[00:02:35] Speaker 01:
Your theory is just Quinn just happened to pass on the information to him, but there was no conspiracy.

[00:02:40] Speaker 01:
In other words, he doesn't have to get money, he just has to agree with

[00:02:44] Speaker 01:
with the seller to engage in this illegal conduct.

[00:02:48] Speaker 01:
Why isn't that sufficient evidence?

[00:02:49] Speaker 04:
So you know, I think even assuming that the talk that was discussed on that call, and I do think just simply saying OK to that is innocuous, ambiguous.

[00:03:00] Speaker 04:
But let's just assume that it's something more than that, that it's acknowledging some sort of talk that they had earlier that wasn't presented at trial.

[00:03:07] Speaker 01:
Well, but it's not just a talk.

[00:03:08] Speaker 01:
It seems to me when you add in the next day's stuff,

[00:03:11] Speaker 01:
Isn't that enough from which a, I mean, it's not a slam dunk, but isn't enough from which a rational finder of fact could find that these two were working, had agreed together that the drugs would be delivered to the informant?

[00:03:25] Speaker 04:
So, I mean, Your Honor, no, it's not.

[00:03:28] Speaker 04:
I think that sufficiency requires, as the Supreme Court has said, more than a mere modicum of evidence.

[00:03:35] Speaker 04:
not speculation, but reasonable inference, as this Court, sitting on Bonk, said, nevels.

[00:03:41] Speaker 04:
And I think if you look, applying that standard at this Court's cases, as well as cases in other circuits that we've cited in our brief, it does require sort of a more detailed level of coordination and planning.

[00:03:53] Speaker 01:
Let me ask one more question on this, just so that I'm clear.

[00:03:56] Speaker 01:
This argument only goes to the conspiracy count.

[00:03:59] Speaker 04:
That is correct, Your Honor.

[00:04:00] Speaker 01:
Not to the distribution count.

[00:04:02] Speaker 04:
That is correct.

[00:04:03] Speaker 04:
But we believe that the distribution count would fall as a result of our other arguments on appeal.

[00:04:07] Speaker 04:
But as to this argument, just the conspiracy.

[00:04:09] Speaker 02:
My question is, so the government didn't call Quinn to testify to this, rather introduce the recorded statements of her.

[00:04:21] Speaker 02:
Why couldn't the defense have called Quinn?

[00:04:25] Speaker 04:
The defense certainly could have attempted to call Quinn.

[00:04:29] Speaker 04:
I don't think it was its burden to call Quinn to testify.

[00:04:35] Speaker 02:
Okay, I agree with that, but I'm just wondering.

[00:04:40] Speaker 04:
Quinn was incarcerated at the time.

[00:04:42] Speaker 02:
Quinn was already incarcerated, already cooperated.

[00:04:44] Speaker 04:
Had already pled guilty at that point.

[00:04:47] Speaker 02:
Pled guilty, got a safety valve.

[00:04:49] Speaker 04:
Instead, though, the government chose to rely on this hearsay evidence.

[00:04:53] Speaker 04:
And I'd be happy to address that if the court would like me to turn to that.

[00:04:59] Speaker 04:
But again, I would encourage the court to take a look at the cases cited in our reply, at footnote two of our reply, basically showing that more detailed involvement needs to be alleged and presented at trial by the government.

[00:05:19] Speaker 02:
The theory could have decided that Quinn was in a conspiracy with, not with Hong, but with whoever provided the drugs to sell.

[00:05:33] Speaker 04:
Well, the theory was that Hong provided the drugs to sell.

[00:05:45] Speaker 04:
So basically, the primary theory at trial was that Quan and Hong were the co-conspirators.

[00:05:54] Speaker 04:
The alternative theory was that Su, the muscle, was the other co-conspirator.

[00:06:01] Speaker 04:
But again, at most, they just said hello outside of the restaurant.

[00:06:06] Speaker 04:
For the sake of argument, let's assume that Sue was in the car.

[00:06:09] Speaker 04:
The evidence that was shown at trial pales in comparison to what this court has said was sufficient in power and in Mares.

[00:06:18] Speaker 04:
You have much more detailed actual protection going on by the alleged muscle or lookout in power.

[00:06:27] Speaker 04:
the muscle actually carrying a handgun, driving the co-conspirator to a sale, walking close behind, placing calls.

[00:06:34] Speaker 01:
Does it make a difference in this case that Quinn owns the cafe?

[00:06:39] Speaker 04:
that Quinn owns the cafe?

[00:06:40] Speaker 01:
Yeah.

[00:06:40] Speaker 01:
I mean, he says... No, it doesn't, because... Somebody calls him, he says, meet him at my place tomorrow.

[00:06:45] Speaker 01:
The inform... He meets him at his place tomorrow.

[00:06:48] Speaker 01:
When he meets him, the guy can, in effect, confirms your client.

[00:06:53] Speaker 01:
In effect, is in effect told that Quinn has okayed this guy.

[00:06:57] Speaker 04:
The informant was the one that suggested the location.

[00:06:59] Speaker 04:
That was not suggested by Quinn.

[00:07:01] Speaker 04:
Quinn basically was just

[00:07:02] Speaker 04:
The tenor of the call was this is hands off.

[00:07:05] Speaker 01:
This is between you guys I guess my question is if Quinn were not a co-conspirator Why would he agree to the sale?

[00:07:12] Speaker 01:
of the illegal drug at his place of business.

[00:07:17] Speaker 01:
I mean, if he's just referring him to a drug dealer, why does he agree to it there?

[00:07:24] Speaker 04:
I don't think there's any evidence of Quinn agreeing to this occurring at her cafe at all.

[00:07:31] Speaker 04:
This simply just occurred after the referral by virtue of Hong and the informant talking.

[00:07:37] Speaker 01:
Quinn must have agreed to it because your client never speaks to

[00:07:41] Speaker 01:
I just don't think that... He never speaks to the informant, so he shows up at the cafe.

[00:07:47] Speaker 01:
Somebody must have transmitted that.

[00:07:49] Speaker 04:
But this was a place that the informant was a regular at.

[00:07:51] Speaker 04:
It could have been a place that Hong was a regular at.

[00:07:53] Speaker 04:
They could have just decided to meet there independently.

[00:07:56] Speaker 04:
And again, that goes to the point I'm making about the arm's length.

[00:07:58] Speaker 01:
I'm interested in your arguments about the methamphetamine distribution count, which seems to me

[00:08:08] Speaker 01:
quite strong on the evidence.

[00:08:10] Speaker 04:
So tell me what- I disagree, Your Honor.

[00:08:12] Speaker 04:
So if I could turn to the hearsay point, there doesn't seem to be any dispute, really, that the court applied an improper legal standard.

[00:08:19] Speaker 04:
So I do want to turn directly to get at Your Honor's questions to why.

[00:08:23] Speaker 01:
You're not disputing.

[00:08:23] Speaker 01:
I'm not sure I agree with you.

[00:08:25] Speaker 04:
Don't tell me that- Well, the court only relied upon the co-conspirator statements themselves as the foundation, which violates this court's holding in Silverman pretty directly.

[00:08:36] Speaker 04:
So given the improper standard that was applied, I think it makes sense to just... No, spend another minute on that.

[00:08:46] Speaker 04:
Sure, sure, absolutely.

[00:08:47] Speaker 01:
That's where I understand you are.

[00:08:48] Speaker 04:
Yeah, so the government based the conspiracy charge and also sought to undermine Hong's entrapment defense with these alleged co-conspirator hearsay statements.

[00:08:59] Speaker 04:
But it actually fell well short of carrying its burden

[00:09:04] Speaker 04:
there is a foundational requirement of presenting non-hearsay evidence of an underlying conspiracy, as Rule 801D23 requires to admit the statements.

[00:09:14] Speaker 01:
But that's why I ask all these questions about these facts that aren't the statements.

[00:09:20] Speaker 01:
In other words, there is, on the day of the sale, he shows up at Quinn's Cafe,

[00:09:27] Speaker 01:
to buy from a person that he had no prior knowledge of.

[00:09:33] Speaker 01:
Sure.

[00:09:33] Speaker 01:
Yes.

[00:09:33] Speaker 01:
So I want to get to that, Your Honor.

[00:09:35] Speaker 01:
Don't all those things provide sufficient facts other than the statement?

[00:09:39] Speaker 04:
So I think that that goes to the harmless error as to the incorrect legal standard that was applied here.

[00:09:44] Speaker 04:
Because that is an independent error as to whether the court actually operated under the correct legal framework.

[00:09:52] Speaker 04:
that is illegal air.

[00:09:53] Speaker 04:
So to get at Your Honor's point as to whether there was other non-hearsay evidence showing a conspiracy such that the air was harmless, the government relies on those subsequent communications and the prior sale.

[00:10:05] Speaker 04:
But again, I think that evidence is consistent with Mr. Hong's unawareness of a conspiracy occurring, as several of the cases cited at page 27 of our opening brief illustrate.

[00:10:17] Speaker 04:
You actually need planning and coordination,

[00:10:21] Speaker 04:
or some sort of concert of action, as this court said in Lloyd, like you need the specific statements in the call actually tracking what ultimately happened when the sale occurred.

[00:10:31] Speaker 00:
So here, again, the evidence was more along the lines of call this guy, talk to him about whatever you want, and then Hong interacting with- The distinction that you're making is that even though there was a referral to Hong providing his phone number and

[00:10:49] Speaker 00:
essentially facilitating the transaction on the date.

[00:10:53] Speaker 00:
All of that is insufficient then to admit the statements because the statements themselves would have had to talk about those things.

[00:11:01] Speaker 00:
So you're trying to draw a distinction between the connection between the two people, which is obvious from these various acts, and what was actually said.

[00:11:10] Speaker 04:
Yes, I think that's right.

[00:11:12] Speaker 04:
I think that's right.

[00:11:12] Speaker 04:
You need something besides the call themselves, basically, to make this sort of foundational show.

[00:11:19] Speaker 04:
And I think that if you're going to rely on the calls themselves, the details need to track what ultimately happened here.

[00:11:25] Speaker 01:
And if you were being charged basically only on the calls themselves, I'd understand your argument.

[00:11:30] Speaker 01:
But it appears to me here that the actions that occur are perfectly consistent with the calls.

[00:11:38] Speaker 04:
I disagree on it.

[00:11:39] Speaker 04:
There was no details.

[00:11:40] Speaker 04:
When you look to the co-conspirator calls, there were no details actually discussed.

[00:11:46] Speaker 01:
You'll recognize the guy because he wears glasses.

[00:11:51] Speaker 01:
And somebody wearing glasses approaches your client with

[00:11:56] Speaker 01:
no other reason to approach it.

[00:11:59] Speaker 01:
Sure, Your Honor.

[00:12:00] Speaker 01:
So things occur consistent with the court.

[00:12:02] Speaker 04:
I would encourage Your Honors to take a close look at Silverman as well as Castaneda.

[00:12:05] Speaker 04:
The case is cited in our brief.

[00:12:07] Speaker 04:
The court does apply a much more stringent standard than it might to, for example, sufficiency in terms of this requirement here, this foundational requirement of showing conspiracy.

[00:12:17] Speaker 01:
Let me invite you again, because I'm not sure any of this would matter to your client if we uphold the distribution count.

[00:12:23] Speaker 04:
Well, no, I mean, because I think that this evidence went to the entrapment defense also.

[00:12:28] Speaker 01:
OK, yeah, but tell me why the distribution count should be reversed and start with the notion that the entrapment instruction was the one you proposed, wasn't it?

[00:12:41] Speaker 04:
So I think those are two separate sort of arguments we make.

[00:12:44] Speaker 01:
Do you think there was entrapment as a matter of law?

[00:12:47] Speaker 04:
No.

[00:12:49] Speaker 04:
But we did raise a strong entrapment defense and we did get an instruction on it.

[00:12:53] Speaker 04:
And the government used this hearsay evidence to undermine that entrapment defense.

[00:12:57] Speaker 04:
It doesn't dispute that.

[00:12:58] Speaker 04:
the prejudicial impact of the hearsay in terms of the entrapment defense, which goes to both counts.

[00:13:04] Speaker 01:
It's the same argument.

[00:13:05] Speaker 01:
It's that this evidence, if excluded, would have went to the methamphetamine distribution.

[00:13:14] Speaker 04:
Exactly.

[00:13:15] Speaker 04:
It was referenced repeatedly during opening and closing statements by the prosecutor.

[00:13:19] Speaker 04:
The arguments deprived Hong ultimately of a fair opportunity to make out that entrapment defense, which was otherwise strong.

[00:13:28] Speaker 01:
Obviously, the evidence establishes that he bought the methamphetamine.

[00:13:35] Speaker 01:
Yes.

[00:13:35] Speaker 01:
So what you're saying is that his entrapment defense would have been... Was undermined, critically.

[00:13:41] Speaker 01:
Now we understand.

[00:13:41] Speaker 04:
And I see that I'm almost out of time, but I just want to, for 10 seconds, just briefly address, because Your Honor addressed it, the instructional errors, why I think that's so important in this case and why this court's intervention on plain air review would be warranted.

[00:13:54] Speaker 04:
The case, I think, has exposed a few very clear inadequacies in the court's model instructions.

[00:13:59] Speaker 01:
Well, I don't even think we do plain air review here, do we?

[00:14:01] Speaker 01:
Isn't this invited error?

[00:14:03] Speaker 04:
I disagree, Your Honor.

[00:14:04] Speaker 01:
You said to the judge, please give these instructions.

[00:14:08] Speaker 01:
And the judge said, OK.

[00:14:10] Speaker 01:
And now you're saying, oh my god, that was a terrible error by the judge to agree with me.

[00:14:14] Speaker 04:
That was the pre-Perez case law.

[00:14:16] Speaker 04:
But this court, sitting on Bonk and Perez after the Supreme Court's decision in Olano, squarely rejected that sort of application of the invited error doctrine, basically saying that the defendant not only has to propose the instruction,

[00:14:30] Speaker 04:
but has to be actually aware of the point of law that they're contesting on appeal.

[00:14:36] Speaker 04:
And the government does bear a heavy burden of showing waiver.

[00:14:39] Speaker 04:
And here, there was no evidence that these instructions were discussed on the record, that these infirmities were discussed on the record, and that Hong intentionally abandoned that right.

[00:14:47] Speaker 04:
So we do think that this is a case that calls out for the court addressing the issue on Plain Air Review, and that Hong's entrapment defense was critically undermined by the erroneous instructions.

[00:15:00] Speaker 04:
Thank you, Your Honors.

[00:15:03] Speaker 05:
Good morning, Your Honors.

[00:15:14] Speaker 05:
If it may please the Court, Sean Andrews on behalf of the United States.

[00:15:18] Speaker 02:
Mr. Andrews, will you list for me what the government thinks is the evidence independent of the recorded statements that point to a conspiracy in this case?

[00:15:33] Speaker 05:
Your honor, aside from Miss Nguyen's statements in Exhibits 2 and 7, we point primarily to the defendant's own statement in Exhibit 5, which is the call that's sandwiched in between the calls contained in the evidence at Exhibits 2 and 7.

[00:15:52] Speaker 05:
And I think this was sort of touched on by Judge Hurwitz.

[00:15:56] Speaker 05:
What we have in Exhibit 5, at the very outset,

[00:16:00] Speaker 05:
is a conversation between the CHS and Mr. Hong, the defendant, where initially there's some confusion from Mr. Hong about who this informant is.

[00:16:10] Speaker 05:
The informant identifies himself as Ty, and it's only when he says, Ty, Quinn's friend, Quinn had a conversation with you earlier

[00:16:20] Speaker 05:
and there's an acknowledgement by the defendant through his tone.

[00:16:24] Speaker 05:
Oh, okay, I see.

[00:16:25] Speaker 05:
And then as you proceed through that call, the critical piece of evidence showing that there was more than just a simple referral or a mere referral in a previous conversation between Ms.

[00:16:38] Speaker 05:
Nguyen and Mr. Hong,

[00:16:40] Speaker 05:
is the fact that Mr. Hong and the CHS have this totally fluent conversation about price of a substance, but that substance is never named.

[00:16:53] Speaker 01:
But if you just—I take it you're relying just on Mr. Hong's statements there, correct?

[00:17:00] Speaker 01:
In addition to Mr. Hong— Because the CHS is—CHS's statements get admitted under the co-conspirator theory, correct?

[00:17:09] Speaker 05:
The defendants were saying that Ms.

[00:17:13] Speaker 05:
Nguyen's statements were admissible as co-conspirator statements, yes.

[00:17:17] Speaker 01:
Right.

[00:17:18] Speaker 01:
But to the extent you're relying on Exhibit 5, you're relying on what Hong said, not what the other person on the call said.

[00:17:28] Speaker 05:
Right.

[00:17:30] Speaker 01:
Because it's what the other person on the call said that your friend is attacking.

[00:17:35] Speaker 01:
Well, what we're pointing to are the defendant's statements himself, and I think the statements... Yeah, and I guess my question is, can I just look at those without the responses and find that there's sufficient evidence of the existence of a conspiracy without the responses by the other person?

[00:17:55] Speaker 05:
I think you can look at the defendant's statements, because the instruction that's often given, and I believe was given here,

[00:18:02] Speaker 05:
is that those statements are not offered for their truth necessarily, but offered just because they were said.

[00:18:10] Speaker 01:
And the acknowledgement- They're admissible, in your view, absent the co-conspirator theory.

[00:18:17] Speaker 01:
to demonstrate not the truth of the matter stated, but to give context to Mr. Hong's statements?

[00:18:25] Speaker 05:
Is that your position?

[00:18:26] Speaker 05:
We have context, and we also have essentially an adoptive admission when you say, oh, I understand what you're talking about.

[00:18:33] Speaker 05:
Yes.

[00:18:34] Speaker 05:
In other words, I spoke with Quinn earlier.

[00:18:36] Speaker 00:
Can you point me to where that statement that you're making right now, where is that in the record?

[00:18:40] Speaker 02:
The ER site as opposed to the exhibit site.

[00:18:44] Speaker 00:
Yes.

[00:18:46] Speaker 00:
The statement that you just I think tried to quote right now where you think that that statement is an actual is in its entirety.

[00:18:56] Speaker 00:
The admission.

[00:18:59] Speaker 01:
Yes, your honors at 623 to 625.

[00:19:02] Speaker 05:
That's that's correct.

[00:19:05] Speaker 02:
Where is this statement?

[00:19:07] Speaker 02:
Is it on 623?

[00:19:10] Speaker 00:
You know, I see the call, the discussion.

[00:19:14] Speaker 00:
I want to know where that statement is that you're talking about.

[00:19:16] Speaker 05:
I believe Judge Horowitz is correct.

[00:19:19] Speaker 01:
I'm always correct, but I'm not sure I'm right.

[00:19:22] Speaker 00:
Those are three pages.

[00:19:25] Speaker 00:
I want to know where the statement is.

[00:19:29] Speaker 00:
I'm at 623 to 625.

[00:19:32] Speaker 01:
Hong says Quinn when the CHS calls him.

[00:19:37] Speaker 01:
And the CHS has Quinn's friend.

[00:19:39] Speaker 01:
And then Hong says, OK, OK.

[00:19:42] Speaker 01:
And then the CHS says, I can get three of these tomorrow.

[00:19:45] Speaker 01:
And Hong agrees.

[00:19:47] Speaker 01:
And Hong agrees to a price.

[00:19:49] Speaker 01:
And then they agree to meet at some place the next day.

[00:19:53] Speaker 01:
That's what Hong says.

[00:19:55] Speaker 01:
Is it your position that what Hong says there is enough to establish the existence of conspiracy?

[00:20:01] Speaker 05:
Well, it's one piece.

[00:20:03] Speaker 05:
And that's why we transmitted the actual exhibits that were put in front of the jury, because the tone with which Mr. Hong says those words becomes critically important because... It seems like from this that CHS knows Hong already.

[00:20:25] Speaker 02:
He says, hello, Peewee.

[00:20:28] Speaker 02:
Who is it?

[00:20:28] Speaker 02:
Peewee.

[00:20:29] Speaker 02:
Why is he calling him Peewee?

[00:20:31] Speaker 05:
Because he had received a text message from Miss Nguyen.

[00:20:36] Speaker 05:
There are two text messages.

[00:20:37] Speaker 05:
These were exhibits three and four.

[00:20:39] Speaker 02:
Tell me who Nguyen is.

[00:20:40] Speaker 05:
I'm sorry?

[00:20:41] Speaker 02:
Nguyen.

[00:20:42] Speaker 02:
You mean Quinn.

[00:20:43] Speaker 05:
Quinn.

[00:20:43] Speaker 02:
Not Nguyen.

[00:20:44] Speaker 05:
Her last name is Wynn.

[00:20:48] Speaker 05:
So the CHS received two text messages from Quinn after the call that's in evidence at exhibit number two.

[00:21:00] Speaker 05:
where she sends a number, which is Mr. Hong's number, and then a name.

[00:21:09] Speaker 05:
His name is Peewee.

[00:21:10] Speaker 05:
So the CHS is referring to him by his non-government name as a result of being provided that information by Ms.

[00:21:19] Speaker 05:
Nguyen.

[00:21:19] Speaker 01:
And there's later some independent identification that Peewee is Hong?

[00:21:24] Speaker 01:
That's correct.

[00:21:25] Speaker 01:
I think the brief says they contested it below.

[00:21:28] Speaker 01:
They continue to contest it, but there's nothing

[00:21:30] Speaker 01:
in the brief about why they contested.

[00:21:33] Speaker 05:
Well, Your Honor, I just think on the evidence in this case, there was really no doubt that Pee-wee was in fact Mr. Hong because we showed pictures sort of.

[00:21:45] Speaker 01:
But again, I want to return to those are both the texting and the Pee-wee are both co-conspirator statements, are they not?

[00:21:53] Speaker 05:
They are.

[00:21:54] Speaker 01:
So they can't establish by themselves the existence of the conspiracy.

[00:21:59] Speaker 05:
Right.

[00:21:59] Speaker 05:
So Mr. Hong's statements themselves are additional evidence outside of the co-conspirator's statements.

[00:22:06] Speaker 05:
The fact that Ms.

[00:22:07] Speaker 05:
Nguyen pleaded guilty to the offense is additional evidence establishing the conspiracy.

[00:22:13] Speaker 02:
Is it Nguyen or it's spelled N-H-U, that's Nguyen?

[00:22:17] Speaker 05:
N-G-U-Y-E-N Nguyen.

[00:22:20] Speaker 02:
Nguyen New Cafe?

[00:22:22] Speaker 05:
Right.

[00:22:24] Speaker 05:
The, the, the cafe was named after her.

[00:22:27] Speaker 05:
It was her cafe.

[00:22:29] Speaker 02:
Right.

[00:22:29] Speaker 02:
But it's not when it's new or I don't know how to pronounce NHU.

[00:22:36] Speaker 05:
just from my knowledge of this case and dealing with Vietnamese translations.

[00:22:41] Speaker 05:
New is sort of like sweetheart.

[00:22:44] Speaker 05:
So first name and a sort of moniker.

[00:22:46] Speaker 00:
So the thing I'm struggling with as I'm looking at ER 623 to 625 is that the exchange that's happening, I think,

[00:22:57] Speaker 00:
gives you what you need for purposes of the sufficiency of the evidence on the distribution.

[00:23:01] Speaker 00:
There's obviously a discussion happening about the sale of these pieces and the cost and whatnot between CHS and HONG.

[00:23:09] Speaker 00:
What I'm not so clear about and what I'm struggling with is how these statements by HONG independently establish the conspiracy

[00:23:20] Speaker 00:
Because there is, other than the CHS statement that I got your number, you know, this is Ty, Quinn's friend.

[00:23:31] Speaker 00:
What friend, whose friend, Ty, Ty, Ty, Quinn's friend, Quinn's friend, you know, okay, so then they establish that the referral came from Quinn.

[00:23:41] Speaker 00:
But everything that happens after that with respect to the timing,

[00:23:46] Speaker 00:
and the cost and the request for three pieces, it doesn't reference any sort of negotiation or arrangement, or I think what your friend on the other side is saying, the additional detail that would establish an actual conspiracy.

[00:24:05] Speaker 05:
So I think in terms of the

[00:24:09] Speaker 05:
independent evidence requirement.

[00:24:10] Speaker 05:
It's just some evidence outside of the co-conspirator statements themselves.

[00:24:15] Speaker 05:
And we're pointing to the fact that this is, in fact, additional independent evidence outside of the co-conspirator statements.

[00:24:23] Speaker 05:
And I think Judge Hurwitz touched on this earlier.

[00:24:27] Speaker 05:
The statement that's in Exhibit 5 or at ER 623 to 625 doesn't exist independent of the previous conversation that Quinn had with Mr. Hong.

[00:24:39] Speaker 00:
So the statements don't need to say or reference any sort of arrangement.

[00:24:45] Speaker 00:
So your positions are really just very opposite in terms of the arguments that you're making as to what is necessary to establish that.

[00:24:52] Speaker 05:
That's right.

[00:24:52] Speaker 05:
Really, the standard is, we believe here,

[00:24:55] Speaker 05:
clear error.

[00:24:57] Speaker 05:
And did the judge make a clear error when he found by a preponderance of the evidence, using all available evidence contained in the record, that there was a sufficient concert of action.

[00:25:09] Speaker 05:
And we agree, there has to be independent evidence outside of the co-conspirators' sentence.

[00:25:13] Speaker 01:
The independent evidence, your friend says, I think reasoning from previous cases, that the independent evidence needs to be strong evidence.

[00:25:23] Speaker 01:
Is that our law?

[00:25:24] Speaker 05:
I think the quotation is from Silverman, Your Honor, and it's fairly incriminating is what Silverman says over and over again.

[00:25:33] Speaker 05:
One thing that I would say is that Silverman is sort of hard to square with another 1988 case, which is United States versus Layton.

[00:25:41] Speaker 05:
which says that the co-conspirator exception is really rooted in the law of agency.

[00:25:47] Speaker 05:
So in order for a judge to find that a statement is in fact a co-conspirator statement, there can be any agreement, legal or otherwise, that can be proved in order for the co-conspirator statement to hold.

[00:26:01] Speaker 05:
So Silverman has this discussion about fairly incriminating evidence, but it's sort of hard to square with Layton.

[00:26:09] Speaker 05:
But that being said,

[00:26:11] Speaker 05:
This is incriminating evidence.

[00:26:13] Speaker 05:
And what else is incriminating here, Your Honor, that we would point to as independent evidence in the record, is Quinn's guilty plea.

[00:26:20] Speaker 05:
She, in fact, pleaded guilty to this same conspiracy.

[00:26:24] Speaker 01:
Introduced in evidence at trial?

[00:26:27] Speaker 05:
It was not introduced in evidence at trial.

[00:26:30] Speaker 01:
I understand it's pretty powerful.

[00:26:35] Speaker 01:
Can the judge take it into account when deciding?

[00:26:38] Speaker 01:
Can he take evidence not admitted at trial into account in deciding whether or not there's independent evidence of the conspiracy?

[00:26:45] Speaker 05:
Yes, Your Honor.

[00:26:47] Speaker 05:
It's under 104A, the judge can consider.

[00:26:50] Speaker 01:
Because it's a primary issue of admissibility, and therefore the rules of evidence don't apply.

[00:26:56] Speaker 05:
That's exactly right.

[00:26:57] Speaker 05:
So any argument that Quinn's guilty plea was hearsay just doesn't hold under 104A.

[00:27:04] Speaker 01:
And Quinn pleads guilty to conspiracy.

[00:27:08] Speaker 05:
And specifically admits to being in a conspiracy with Mr. Hong.

[00:27:11] Speaker 01:
Is the indictment alleged conspiracy with Mr. Hong?

[00:27:15] Speaker 01:
Yes.

[00:27:17] Speaker 05:
And then I think what Your Honor was sort of touching on before is the chronology of facts that happens afterwards.

[00:27:27] Speaker 05:
also is independent evidence, right?

[00:27:29] Speaker 05:
You're going to find a guy with glasses.

[00:27:31] Speaker 05:
A guy with glasses, in fact, shows up.

[00:27:34] Speaker 00:
So some of the- He matched the description of the person that Quinn says that they're going to meet, right?

[00:27:40] Speaker 01:
Right.

[00:27:41] Speaker 01:
Can I ask you a question about a topic your friend didn't touch on?

[00:27:45] Speaker 01:
But it's briefed.

[00:27:47] Speaker 01:
It's the Batson issue in this case.

[00:27:52] Speaker 01:
The judge is supposed to go through

[00:27:55] Speaker 01:
at least a three-step analysis.

[00:27:58] Speaker 01:
First question is, have you made a prima facie case?

[00:28:01] Speaker 01:
Second question is, does the prosecution offer a non-pretextual reason?

[00:28:07] Speaker 01:
And the third thing is, does the judge believe it's non-pretextual?

[00:28:11] Speaker 01:
Did the judge do that here?

[00:28:14] Speaker 01:
He just seems to have skipped to step three and said, at a point when none of the other

[00:28:22] Speaker 01:
I mean, I think it doesn't appear to me that there's plenty of evidence that it's non-protextual here.

[00:28:28] Speaker 01:
The difficulty is I'm not sure how he gets there on the first challenge of the case.

[00:28:33] Speaker 05:
I think we have to look at sort of how the challenge was raised.

[00:28:37] Speaker 05:
And I think in what I would say your stock sort of bats in challenge.

[00:28:43] Speaker 05:
Whoever is making the challenge would try to point towards some sort of specific action.

[00:28:48] Speaker 00:
But that happens.

[00:28:49] Speaker 00:
Let me just supplement Judge Hurwitz's question here.

[00:28:53] Speaker 00:
What I'm wondering is, if we determine that the judge erred by concluding without moving to the government to provide a race-neutral objective reason for the strike, what do we do with that?

[00:29:09] Speaker 05:
You can review de novo, your honor.

[00:29:11] Speaker 05:
And I think there's there's ample evidence in the record showing that that strike wasn't motivated by discriminatory purpose.

[00:29:19] Speaker 05:
You can go back.

[00:29:19] Speaker 01:
The judge didn't make that finding.

[00:29:22] Speaker 05:
Correct.

[00:29:23] Speaker 05:
You can review de novo.

[00:29:25] Speaker 05:
And and in this case, I think, fortunately, that that same juror

[00:29:29] Speaker 05:
who I struck with a peremptory, I attempted to strike for cause.

[00:29:34] Speaker 05:
And my reasons for attempting to strike for cause were on the record.

[00:29:39] Speaker 05:
His responses about whether he could be fair in light of his experiences with law enforcement were the responses that I gave.

[00:29:48] Speaker 01:
That's the response you would have given had you gotten to step two.

[00:29:50] Speaker 01:
Correct.

[00:29:51] Speaker 01:
But let me ask you about step one.

[00:29:57] Speaker 01:
group, if you will, that the other side says the stricken juror belongs to is men of color.

[00:30:05] Speaker 01:
Is that a sufficient identification to take us to step two?

[00:30:11] Speaker 05:
It's not, Your Honor.

[00:30:11] Speaker 05:
And the Ninth Circuit has never recognized it as such.

[00:30:14] Speaker 01:
Well, we've never recognized it, but we're all here.

[00:30:17] Speaker 01:
So I mean, the fact that we've never recognized it, and we're not dealing here with a, you know, we need clearly established law case.

[00:30:24] Speaker 01:
So tell me why it's not.

[00:30:27] Speaker 05:
So, Suddy Swat is the case.

[00:30:30] Speaker 05:
It's a 1982 case, Your Honor, which declined to recognize, quote, non-whites as a category under Batson because it would have, quote, no internal cohesion.

[00:30:40] Speaker 05:
And I think that would apply here.

[00:30:42] Speaker 01:
He said black men of color.

[00:30:44] Speaker 01:
Would it have made a difference?

[00:30:45] Speaker 05:
I think that's already... Black men.

[00:30:47] Speaker 01:
Black men.

[00:30:48] Speaker 01:
I'm sorry.

[00:30:48] Speaker 05:
Sure, I think that's a cognizable group already.

[00:30:51] Speaker 01:
But just because he said men of color, it's not cognizable.

[00:30:54] Speaker 05:
I think it's not sufficiently thought of.

[00:30:56] Speaker 01:
Even if the jury knows what the color of the man is, what the judge.

[00:30:59] Speaker 05:
And ultimately, what I think this comes down to is this case on the facts here, particularly the justification that was given for the four-cause challenge, just isn't the vehicle to recognize this hybrid classification that's never been recognized before.

[00:31:16] Speaker 05:
With that, Your Honors, I have nothing further.

[00:31:18] Speaker 02:
All right, thank you, counsel.

[00:31:21] Speaker 02:
Mr. Haney, I'll give you a couple of minutes.

[00:31:26] Speaker 04:
Thank you, Your Honors.

[00:31:26] Speaker 04:
I'll be brief.

[00:31:28] Speaker 04:
Just turning quickly to the hearsay point, the standard of review is not clear.

[00:31:32] Speaker 04:
This was, again, as I stated, an erroneous legal standard.

[00:31:37] Speaker 04:
Cases cited in our reply at footnote nine address this issue, and I'd encourage the court to review those.

[00:31:42] Speaker 01:
That's why I asked you the question before.

[00:31:44] Speaker 01:
If, in fact, on this record,

[00:31:47] Speaker 01:
it's not clear error because it was harmless, then it's not clear error.

[00:31:51] Speaker 01:
It has to prejudice you.

[00:31:52] Speaker 04:
Well, we think we prevail under either standard of review, even clear air.

[00:31:57] Speaker 04:
But the standard of review is de novo because this was an improper legal standard that was applied here.

[00:32:03] Speaker 04:
And it was not, in fact, harmless for the reasons I've already stated.

[00:32:07] Speaker 04:
Silverman, I just want to address my friend on the other side's attempt to sort of distinguish or undermine Silverman.

[00:32:14] Speaker 04:
It's been applied by this court since the 1980s.

[00:32:18] Speaker 04:
And McKell, a case cited in our brief, as well as Castaneda,

[00:32:21] Speaker 04:
Also cited in our brief.

[00:32:24] Speaker 04:
It is still good law and it's still applied often in the circuit regarding government councils gloss of the tone and exhibit five.

[00:32:37] Speaker 04:
I want to point the court to E.R.

[00:32:41] Speaker 04:
414 where the district court actually, when that evidence was presented at trial and government counsel attempted to make that inference and present that, his own gloss on the Vietnamese translation of as OOK, the district court expressly corrected government counsel and said that's not what it says.

[00:32:59] Speaker 04:
And if the court obviously has that exhibit and it can review it if it would like.

[00:33:05] Speaker 04:
But I want to point the court to E.R.

[00:33:07] Speaker 04:
And then finally, regarding the guilty plea, I just want to address that in terms of harmless hair analysis.

[00:33:14] Speaker 04:
That's just simply more unreliable hearsay, which can't form the foundation.

[00:33:18] Speaker 01:
Well, no, it's not.

[00:33:20] Speaker 01:
See, 104A doesn't require that admissibility

[00:33:24] Speaker 01:
that the admissibility decisions may be made solely with admissible evidence.

[00:33:29] Speaker 04:
We're not saying as a matter of law that the court can't consider it as part of its harmless error analysis and whether that.

[00:33:35] Speaker 01:
I understand your argument that they applied, I'll let you finish.

[00:33:39] Speaker 01:
No, it's OK, Your Honor.

[00:33:40] Speaker 01:
I understand your argument that the court applied the wrong legal standard.

[00:33:44] Speaker 01:
I'm now asking a different question, which is that given

[00:33:47] Speaker 01:
I'll say Quinn.

[00:33:50] Speaker 01:
Given Quinn's guilty plea, which is admissible, to show the existence of a conspiracy, why isn't that enough?

[00:33:59] Speaker 04:
Because even if under 104 it can be considered, it's simply unreliable.

[00:34:05] Speaker 04:
A defendant signing a plea agreement

[00:34:07] Speaker 04:
may adopt facts the government wants to hear in exchange for a benefit, including a lesser sentence.

[00:34:12] Speaker 04:
The factual basis in a plea agreement binds the party who signs it, but

[00:34:18] Speaker 04:
It's not binding upon a co-defendant.

[00:34:20] Speaker 01:
So this court... Well, no, it's not binding on him, but, jeez, it seems to me to be pretty powerful evidence that Quinn was in a conspiracy with Hong, since Quinn pleaded guilty to being in a conspiracy with Hong.

[00:34:33] Speaker 01:
Why isn't that enough to get them passed on?

[00:34:36] Speaker 04:
I disagree, Your Honor.

[00:34:36] Speaker 04:
I think the bar that the court set in Silverman is intentionally high.

[00:34:40] Speaker 04:
It's called this sort of hearsay doubly suspect, and it requires something stronger here.

[00:34:47] Speaker 04:
And if the court actually looks at, for example, the wealth of cases regarding the penal interest exception, this court has doubted the reliability of admissions and plea agreements for the very reasons that I'm stating.

[00:35:00] Speaker 04:
So, but even if the court were to accept the plea agreement as probative, perhaps.

[00:35:07] Speaker 01:
Just the plea.

[00:35:08] Speaker 01:
Just the plea.

[00:35:09] Speaker 01:
The plea, yes.

[00:35:09] Speaker 01:
It establishes as a matter of, it establishes that Quinn was in a conspiracy with Hong.

[00:35:14] Speaker 01:
I don't, put aside the factual basis for it for a moment.

[00:35:17] Speaker 04:
Right, right, right.

[00:35:18] Speaker 04:
So Quinn admitted to facilitating an introduction to Hong as part of the conspiracy, but she plausibly only did so after the informant first contacted her.

[00:35:28] Speaker 04:
And the conspiracy has to be shown at the time of the statements.

[00:35:33] Speaker 01:
I know you're over time, but let me just ask if I can ask one more question.

[00:35:36] Speaker 01:
So if Quinn had come to trial and said, I engaged in a conspiracy with Hong,

[00:35:45] Speaker 01:
You could cross-examine, obviously, but wouldn't those facts be enough to establish the existence of the conspiracy independent of the hearsay statements?

[00:35:55] Speaker 04:
I think that would be a very different circumstance.

[00:35:58] Speaker 04:
That evidence wasn't presented by the government.

[00:36:00] Speaker 04:
They chose not to.

[00:36:02] Speaker 01:
Well, but again, the judge doesn't need to have admissible evidence to do it, so why isn't this the equivalent of Quinn saying, for purposes of the judge's analysis, I was in a conspiracy with Haim?

[00:36:14] Speaker 04:
Because, again, she only facilitated the introduction, and it was after these calls occurred.

[00:36:21] Speaker 04:
And it has to be at the time of the occurrence of the calls that the conspiracy exists.

[00:36:25] Speaker 04:
And at best, what that would establish is something occurred after the fact, basically.

[00:36:30] Speaker 04:
And that's what's required under the law.

[00:36:31] Speaker 04:
And if I could just very briefly address Batson, if you're honored, don't mind.

[00:36:36] Speaker 04:
This court doesn't just need to apply de novo review upon the showing of a procedural error as occurred in this case, as the court did in Alvarez-Loa as an alternative remedy.

[00:36:48] Speaker 04:
When the factual record is inadequate, it can be remand for further fact-finding.

[00:36:53] Speaker 04:
or a new trial.

[00:36:54] Speaker 04:
And finally, with regard to whether or not men of color are protected class under Batson, the Supreme Court in power versus Ohio conveyed pretty clearly that skin color is protected under Batson.

[00:37:07] Speaker 04:
So we would urge the court to apply that precedent here.