[00:00:00] Speaker 01:
Each side will have 15 minutes, and Ms.

[00:00:02] Speaker 03:
Bliss, you may begin when you're ready.

[00:00:04] Speaker 03:
Yes, good morning.

[00:00:05] Speaker 03:
Kathleen Bliss on behalf of Jaime Munoz.

[00:00:09] Speaker 03:
Your Honors, there are two primary issues that I want to address with you today, one requiring reversal as a matter of law, the other one requiring a remand.

[00:00:23] Speaker 03:
As to the first, the first issue involves the judges,

[00:00:27] Speaker 03:
The trial court's erroneous findings allowing post-inducement evidence, if you can call it that, to be admitted as rebuttal of the entrapment defense that was raised by Mr. Munoz.

[00:00:46] Speaker 03:
There's no question that that was an affirmative defense that he raised, thereby shifting it to the government to prove that there was no entrapment beyond a reasonable doubt.

[00:00:57] Speaker 03:
Here what the judge did is the judge relied on the Ninth Circuit case Gomez as authority for allowing post-inducement conduct.

[00:01:10] Speaker 03:
So when you strip that away, all we're really left prior to the initial contact about the sale of fentanyl on July 21st, all we're left with is really

[00:01:27] Speaker 03:
a folded napkin, and a statement which the government cited as Exhibit 17A, where the informant, Mr. Trepp, says, can you sell me those pills again?

[00:01:41] Speaker 03:
Can I get those pills from you again?

[00:01:44] Speaker 03:
Both of which are hearsay.

[00:01:47] Speaker 02:
So the error- Wait a minute, defendant's statement is not hearsay, is it?

[00:01:54] Speaker 02:
He didn't say that.

[00:01:56] Speaker 02:
No, he said if the buyer has the money, I can get whatever he wants.

[00:02:03] Speaker 02:
So that's admissible, is it not?

[00:02:06] Speaker 03:
Oh, of course it would be admissible, but does it indicate that he's going to possess fentanyl with the intent to distribute?

[00:02:14] Speaker 03:
No, standing alone, it doesn't.

[00:02:16] Speaker 03:
But I want to talk about the inducement itself first, because I think that that

[00:02:21] Speaker 02:
Would you first say specifically what testimony you think was erroneously admitted specifically?

[00:02:29] Speaker 03:
All of the testimony from the Snapchats and the interactions with the undercover officer as well as with Mr. Trepp after July 21.

[00:02:40] Speaker 03:
That is post-inducement evidence that should never have come in.

[00:02:47] Speaker 03:
Gomez, which the court relied on, Your Honor,

[00:02:50] Speaker 03:
was based on 405A, reputation evidence.

[00:02:53] Speaker 03:
There was a dissent in that case, by the way, as well.

[00:02:56] Speaker 03:
So that was 405A.

[00:02:57] Speaker 02:
So is it your position?

[00:02:58] Speaker 02:
This is not your case, but I'm going to give you a hypothetical.

[00:03:02] Speaker 02:
Let's say a week or a month after the event in question here, a defendant says,

[00:03:14] Speaker 02:
I was so delighted that I got to sell the fentanyl pills to the CI because it's more money than I've made in years from all my other sales.

[00:03:25] Speaker 02:
You think that can't come in?

[00:03:27] Speaker 03:
No, I don't.

[00:03:29] Speaker 03:
Not if you find inducement from the prior interaction.

[00:03:34] Speaker 02:
But if the question is predisposition and someone says, hey, man, I've been doing this for years.

[00:03:40] Speaker 03:
Why isn't that relevant?

[00:03:42] Speaker 03:
Well, if he says, I've been doing this for years, then that does show prior conduct.

[00:03:47] Speaker 03:
But if he's never, and Your Honor, there is absolutely no evidence whatsoever that Jaime Munoz ever sold fentanyl.

[00:03:54] Speaker 02:
No, but he sold, he gave other drugs to people.

[00:03:58] Speaker 03:
So it wasn't fentanyl.

[00:04:00] Speaker 03:
And the point is, no, it has to be specific to it.

[00:04:05] Speaker 03:
You've got to look at the Pullman case.

[00:04:07] Speaker 02:
But the person has to be induced who wouldn't otherwise do it.

[00:04:10] Speaker 02:
And if I'm a regular heroin seller and somebody says, say, can you get me some fentanyl also?

[00:04:16] Speaker 02:
And I say, if you got the money, I'll get the stuff.

[00:04:20] Speaker 02:
Is that other activity not relevant?

[00:04:24] Speaker 03:
No, Your Honor.

[00:04:25] Speaker 03:
It's not relevant because you're talking about fentanyl.

[00:04:28] Speaker 03:
which is a much more serious crime, and that's the new crime that is occurring.

[00:04:36] Speaker 03:
We can go back to the Sherman case.

[00:04:39] Speaker 03:
Mr. Sherman had two prior drug convictions, and the Supreme Court yet found that because of the way the relationship between the two of them was used, that Mr. Sherman was in track.

[00:04:53] Speaker 03:
The Supreme Court refused to overrule the Sorrell's case.

[00:04:58] Speaker 03:
There's so much tension in an entrapment itself because you've got the government's extreme interest in wanting to curb crime, but yet at the same time, you cannot have the government create a crime.

[00:05:11] Speaker 03:
And that's what we have here.

[00:05:12] Speaker 03:
The government created the serious crime of selling fentanyl when there was no predisposition

[00:05:20] Speaker 03:
by Mr. Munoz to do so.

[00:05:22] Speaker 03:
Partying, drinking, smoking, dope, doing all these things that they clearly chattered about, that had nothing to do with the sale of fentanyl, the series of fents.

[00:05:33] Speaker 03:
Doing cocaine, for example, Your Honor, it takes 400 grams of cocaine to get to the same guideline level and mandatory minimum as 40 grams of fentanyl.

[00:05:49] Speaker 03:
Fentanyl is a much more serious offense, but I want to talk about the inducement really quickly because you cannot ignore the relationship between Jaime Munoz and Warren Trepp.

[00:06:04] Speaker 03:
That relationship began in February of 2020.

[00:06:10] Speaker 03:
It was cultivated by a mutual love to go to the gym, a mutual love to party, and a mutual

[00:06:19] Speaker 03:
history of being bullied, of being taken advantage of.

[00:06:24] Speaker 03:
And Mr. Munoz, who was raised to be loyal and loved, took quite a liking to Mr. Trepp.

[00:06:34] Speaker 03:
And we introduced pictures of the prior relationship, prior to June 3rd, which is a significant date.

[00:06:43] Speaker 03:
That's the date after, like within days after Mr. Trepp

[00:06:49] Speaker 03:
who by the way was never arrested according to Agent Cordero, him then introducing an undercover to Mr. Munoz.

[00:07:02] Speaker 03:
But then you have to go back between that time and remember Mr. Munoz testified extensively about their relationship.

[00:07:11] Speaker 03:
That was never rebutted by the government, never.

[00:07:14] Speaker 03:
He also testified extensively about

[00:07:17] Speaker 03:
Mr. Trepp telling him his dad is dying.

[00:07:23] Speaker 03:
My parents are mad at me.

[00:07:24] Speaker 03:
I wrecked the Mercedes.

[00:07:26] Speaker 03:
I'm going to lose my apartment.

[00:07:28] Speaker 03:
I lost my drug connects.

[00:07:32] Speaker 03:
Just because Mr. Munoz, who owned a barbershop, knew and heard things in that barbershop did not make him a dealer of fentanyl.

[00:07:44] Speaker 03:
So when you go back to Mr. Munoz's testimony, which of course is admitted evidence, Mr. Munoz talks about on July 20th, a pivotal day before the 17A, the interaction at the barbershop with Mr. Trepp occurs.

[00:08:06] Speaker 03:
Mr. Trepp is telling Mr. Munoz how badly he needs money

[00:08:11] Speaker 03:
because he's going to get kicked out of his apartment.

[00:08:14] Speaker 03:
His mother is mad at him.

[00:08:16] Speaker 03:
His dad is dying.

[00:08:18] Speaker 03:
He appealed greatly to the sympathy of someone who looked at him as a younger brother and wanted to protect him.

[00:08:27] Speaker 03:
Mr. Trepp abused that relationship to save himself.

[00:08:32] Speaker 03:
Now, very quickly, I want to talk about the second primary issue that we have here, and that is on the application

[00:08:41] Speaker 03:
of the guideline, the firearm enhancement, as well as the court denying the safety valve.

[00:08:49] Speaker 03:
Again, as I said before, and I did file a 28-J, the Duarte case just came out by the Ninth Circuit, essentially affirming, again, the power of the Bruin decision and the power... I'm sorry, Your Honor.

[00:09:09] Speaker 02:
read your 28-J letter with interest, but I had two questions for you.

[00:09:14] Speaker 02:
The first is whether you read the guideline to differentiate between lawful and unlawful possession of a firearm, because to me, it would cover both.

[00:09:27] Speaker 02:
So even if you assume that possession was lawful, the guideline appears to cover it.

[00:09:33] Speaker 02:
My second question is, we have precedent

[00:09:39] Speaker 02:
applying the firearm enhancement in this situation.

[00:09:42] Speaker 02:
So as a three-judge panel, how would we be free to overrule that?

[00:09:50] Speaker 03:
I don't think any prior precedent.

[00:09:55] Speaker 03:
Now, Alana's is different, if that's the case you're talking about, Your Honor.

[00:09:59] Speaker 03:
But I don't believe there's any prior precedent since the Bruin analysis.

[00:10:04] Speaker 03:
And I'm not challenging the constitutionality of the guidelines, to be clear.

[00:10:08] Speaker 03:
I'm just saying.

[00:10:10] Speaker 02:
But since the guideline, I guess the more important question really was my first one, and I'm sorry I muddied it, but it appears to me that the guideline does not differentiate between lawful and unlawful possession.

[00:10:22] Speaker 02:
And what you're arguing for, as I understand it, is to assume that the possession was lawful.

[00:10:27] Speaker 02:
But I'm not sure how that assists, because if the guideline covers the co-use of a firearm

[00:10:39] Speaker 02:
whether lawful or not in a drug crime, how does that help you?

[00:10:44] Speaker 02:
Well, first of all, there has to be a functional connection.

[00:10:47] Speaker 02:
There has to be either way, whether it's lawful or unlawful.

[00:10:50] Speaker 02:
So setting that aside, where do you see in the guideline any differentiation between lawful and unlawful, if there is a connection?

[00:10:59] Speaker 03:
If there is a connection, and that's the difference.

[00:11:01] Speaker 03:
There was no connection here.

[00:11:03] Speaker 02:
But that's not a Bruin argument.

[00:11:05] Speaker 02:
That's a garden variety.

[00:11:07] Speaker 02:
It isn't connected argument.

[00:11:09] Speaker 02:
So I'm trying to zero in on what difference it makes under the guideline if the firearm has been possessed lawfully.

[00:11:20] Speaker 04:
This is the point that I'm trying to make.

[00:11:22] Speaker 04:
And you haven't meddled anything.

[00:11:23] Speaker 04:
I'm the one who hasn't been clear.

[00:11:24] Speaker 04:
Can you stay up at the podium with the microphone?

[00:11:26] Speaker 03:
Of course.

[00:11:26] Speaker 03:
I'm sorry.

[00:11:27] Speaker 01:
I was warned.

[00:11:27] Speaker 01:
It's difficult for us to hear you when you step back.

[00:11:29] Speaker 03:
Yes.

[00:11:30] Speaker 03:
I'm sorry.

[00:11:30] Speaker 03:
I'm the one who hasn't made it clear.

[00:11:32] Speaker 03:
Under the guidelines,

[00:11:34] Speaker 03:
1B, I mean 1D1B1, the defendant has the burden to show that it was improbable that the gun wasn't used in connection with the drug sale.

[00:11:51] Speaker 01:
Here what I'm saying is that under Bruin and now Duarte... Okay, so then maybe you should address the Alanis decision because you raised that, but I think to Judge Graber's point,

[00:12:02] Speaker 01:
We have precedent directly on point, stating that there is no violation of Bruin in this very specific context.

[00:12:11] Speaker 01:
And Duarte was really analyzing the 922G1 provision, which is not at issue here.

[00:12:18] Speaker 01:
So we are not free to ignore Alanis, right?

[00:12:22] Speaker 03:
I'm not asking you to ignore Atlantis.

[00:12:24] Speaker 03:
Actually, I would love for you to look at the fact that Atlantis found that the safety valve has a different standard, because here the judge merged the two.

[00:12:33] Speaker 04:
But Atlantis forecloses your argument regarding the enhancement.

[00:12:37] Speaker 04:
Under 1B1, not 1B18.

[00:12:40] Speaker 03:
That's the difference.

[00:12:42] Speaker 03:
And Judge Dew did not make a distinction between the two, as the government even acknowledged.

[00:12:47] Speaker 03:
But going back

[00:12:50] Speaker 03:
The Second Amendment right makes it more probable that the possession was legal.

[00:12:59] Speaker 02:
That's the important- I'm asking you what difference does legal possession make if the other requirements of the guideline are met?

[00:13:08] Speaker 02:
That is that you sell your lawfully possessed firearm along with some drugs.

[00:13:14] Speaker 02:
So I don't see how lawful helps you.

[00:13:17] Speaker 02:
If it is sold,

[00:13:20] Speaker 02:
I have a firearm that I possess legally, but I've decided to sell it right along with some fentanyl.

[00:13:27] Speaker 02:
So what difference does it make to the guideline on the firearm enhancement that the weapon is possessed lawfully?

[00:13:37] Speaker 03:
I think it undermines the improbability requirement of the defendant.

[00:13:42] Speaker 03:
So I think it lessens the burden.

[00:13:43] Speaker 03:
That's what I'm suggesting.

[00:13:45] Speaker 03:
However, it has to be emphasized here factually

[00:13:48] Speaker 03:
that the government again created this drug gun connection.

[00:13:55] Speaker 03:
So it was the government's creation.

[00:13:57] Speaker 03:
It's almost like a sentencing entrapment, a bait and switch, as it were.

[00:14:01] Speaker 03:
And so that can't be disregarded, how this even came about.

[00:14:08] Speaker 01:
If we're talking... I want to make sure that Judge Gruber's question's been answered, but I also want to alert you to the fact that you're under a minute now, and I know you wanted to reserve some time, so...

[00:14:17] Speaker 02:
I don't have further questions.

[00:14:19] Speaker 01:
OK.

[00:14:19] Speaker 01:
If you would like to reserve a minute, we'll put a minute on the clock for rebuttal.

[00:14:23] Speaker 01:
Or you can use it now.

[00:14:24] Speaker 01:
It's up to you.

[00:14:26] Speaker 04:
Sure.

[00:14:26] Speaker 04:
I'll take a minute for rebuttal.

[00:14:28] Speaker 04:
I think I have 48 seconds left.

[00:14:29] Speaker 04:
We'll put a minute on the clock.

[00:14:31] Speaker 04:
Thank you, Your Honor.

[00:14:38] Speaker 00:
Good morning.

[00:14:39] Speaker 00:
May it please the Court.

[00:14:39] Speaker 00:
Adam Flake for the United States.

[00:14:43] Speaker 00:
It's the government's position that Allianz

[00:14:46] Speaker 00:
I'm not sure how you pronounce it.

[00:14:51] Speaker 00:
It squarely forecloses the constitutional challenge to the enhancement in the guideline.

[00:15:00] Speaker 02:
I think if I understand the argument, which I still may not, it is that it's not a constitutional challenge per se.

[00:15:08] Speaker 02:
It's an interpretation of application of the guideline such that

[00:15:15] Speaker 02:
If the position is lawful, then it's presumed that the guideline wouldn't apply, or something along those lines.

[00:15:28] Speaker 00:
The Allianz did actually discuss the harm that the enhancement is intended to address, and what it said was,

[00:15:39] Speaker 00:
When it was looking at the historical analogs, it said, you know, our country has a long tradition of preventing the possession of firearms when the presence of a firearm has the potential to make an already dangerous situation more dangerous.

[00:15:55] Speaker 00:
And that's exactly the same thing that the guideline does in this case.

[00:15:59] Speaker 00:
The Gomez case, which my colleague discussed earlier,

[00:16:02] Speaker 00:
It's a case about entrapment, but it also discusses the firearms enhancement.

[00:16:08] Speaker 00:
And Gomez clearly says, it does not matter if the firearm was for sale as part of the transaction.

[00:16:13] Speaker 00:
It doesn't matter if the firearm was unloaded.

[00:16:15] Speaker 00:
What matters is when you have an already exceedingly dangerous situation, a clandestine sale of black market goods,

[00:16:24] Speaker 00:
And there's a firearm sitting there.

[00:16:26] Speaker 00:
It makes it exponentially worse.

[00:16:28] Speaker 00:
And that is why the guideline provides an enhancement for possession of a firearm, because it makes an already dangerous situation worse.

[00:16:37] Speaker 02:
And lawfulness of possession previously, I take it from your comment, doesn't matter one way or the other?

[00:16:47] Speaker 00:
No, Your Honor, it's not in the guideline.

[00:16:53] Speaker 00:
And if the court has any other questions, I'm happy to answer them.

[00:16:56] Speaker 00:
Otherwise, I'll concede the rest of my time.

[00:17:00] Speaker 01:
All right.

[00:17:01] Speaker 01:
Thank you, Mr. Flake.

[00:17:02] Speaker 01:
All right.

[00:17:03] Speaker 01:
Ms.

[00:17:03] Speaker 01:
Bliss, you have one minute for rebuttal.

[00:17:05] Speaker 03:
OK.

[00:17:06] Speaker 03:
Let's go back to the functional connection, aside from any lawful possession.

[00:17:12] Speaker 03:
Here, you have to look at the fact that the government created the possession of the firearm by ordering it up through Mr. Trepp.

[00:17:22] Speaker 03:
Mr. Munoz's friend.

[00:17:25] Speaker 03:
These cases, for example, Gomez, there was no government activity or conduct that caused the possession of that firearm.

[00:17:37] Speaker 03:
Mr. Gomez, they searched his home and they found firearms there.

[00:17:42] Speaker 03:
But here you have Mr. Trepp orchestrating the drug sale as well as the gun sale.

[00:17:52] Speaker 03:
Again, it's like a bait and switch that the government is trying to impose on Mr. Munoz in order to foreclose him from the safety valve enhancement, definitely, but then adding that firearm enhancement.

[00:18:09] Speaker 03:
Thank you.

[00:18:10] Speaker 01:
Thank you.

[00:18:11] Speaker 01:
Thank you, counsel, for your argument.

[00:18:12] Speaker 01:
This case is now submitted.