[00:00:00] Speaker 01:
Miss Sun, thank you your honor I would like to reserve two minutes for rebuttal and I want to begin with the first issue We raise which has to do with the jury instruction The inadequacy we say of the jury instruction on in furtherance I do believe that the record shows mr. Alston

[00:00:21] Speaker 01:
adequately preserved an objection and there's one citation I didn't give her really misquoted in and that is that excerpt volume for excerpt of record for 95 and for 96 that is

[00:00:35] Speaker 01:
at the time of the final jury instructions conference before instructing the jury.

[00:00:41] Speaker 01:
So that was at the time of trial, just before instruction.

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And defense counsel mentioned the instruction in furtherance of by number, which it's number two.

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And the court said yes.

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It understood and didn't change its ruling.

[00:01:01] Speaker 04:
Don't we have precedent that sort of makes this argument a difficult one?

[00:01:06] Speaker 01:
No, I don't think so.

[00:01:07] Speaker 01:
I looked it up.

[00:01:09] Speaker 01:
It was 2004 in United States versus Kraus, which I think we cite.

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I think the government may also cite it, in which this court first defined in furtherance of and first recognized.

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So this is 20 years.

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Recognized that the subjective intent.

[00:01:26] Speaker 03:
These two of us were judges at that time, so be careful when you suggest how old and ancient that was.

[00:01:30] Speaker 01:
Your honor, I'm with you.

[00:01:32] Speaker 01:
I'm totally with you on that.

[00:01:36] Speaker 01:
For me, 20 years isn't that long ago, but for a lot of people, it sounds like a lot of time, and that is when this court first recognized that subjective intent with respect to the possession of the firearm bears on whether it's in furtherance of.

[00:01:50] Speaker 01:
And since then, even

[00:01:53] Speaker 01:
cases that the government cites and and these are different kinds of cases talk about how the intent of the defendant in possessing the firearm bears on in furtherance of now what we've never had what do we do with Lopez though I mean I I understand why you might want that instruction but the question is whether it was an error and

[00:02:17] Speaker 02:
And Lopez seems quite clear to say that the district court doesn't err when it rejects a proposed instruction.

[00:02:24] Speaker 01:
Your Honor, that sentence was in the commentary to the instruction 1423, even before it was changed.

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And I have three comments on it.

[00:02:34] Speaker 01:
First of all, Lopez's own understanding of the meaning of and furtherance of is subjective intent to promote or forward or facilitate the offense.

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It is an agreement with Krauss and all the other cases that have talked about what in-furtherance of beings.

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Secondly, if you look at that whole paragraph, it seems to me that the committee is really defining cases in which the instruction might not be warranted.

[00:03:04] Speaker 01:
That is the promote and forward the offense.

[00:03:06] Speaker 01:
First of all, Lopez was there on plain error.

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And the court said that the lack of the definition there actually benefited him.

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And so while the commentary quotes that sentence, when you look at the whole context of it in Lopez, that was an atypical situation, or a situation at least not like the one we have here.

[00:03:27] Speaker 01:
The defendant really didn't ask for an instruction below.

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What we've got here is a defendant who made clear that this was his defense.

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Whether he possessed the firearm in that little backpack on his back was his defense.

[00:03:43] Speaker 02:
So I agree with all of that.

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We don't have the whole question of forfeiture and that whole issue that you might have had in Lopez.

[00:03:51] Speaker 02:
But the bottom line remains the same, doesn't it?

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And that is whether there was an error in not giving it.

[00:04:01] Speaker 02:
It's not clear to me what kind of an opinion we could write to say, well, that's what Lopez said, but we're now seeing it differently.

[00:04:11] Speaker 01:
Well, in Irons, which was decided in 2022, this court decided that the defendant had to- And we were all still alive.

[00:04:19] Speaker 01:
Yeah.

[00:04:19] Speaker 01:
Yeah.

[00:04:19] Speaker 01:
OK.

[00:04:19] Speaker 01:
Yeah.

[00:04:20] Speaker 01:
The court decided there ought to be a new trial, because the one issue was whether the defendant possessed that firearm in furtherance of.

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There might have been other reasons he had it.

[00:04:31] Speaker 01:
They said there ought to be a new trial.

[00:04:33] Speaker 01:
So the whole point, I think we both say, and it was probably my fault for pointing out the new 1423, but I just wanted the court to know, just like a month or so before, I think, this court had it in mind to add it to the guidance it gives in the form of a model instruction.

[00:04:51] Speaker 01:
It added it to the guidance.

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Isn't this court that does that, we don't adopt

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or approve, and we have case law that acknowledges that that's not binding on this court or the argument.

[00:05:05] Speaker 03:
I understand the argument you're trying to make.

[00:05:06] Speaker 03:
I understand why a defendant would like to have that version, but I think I still have the same concern.

[00:05:14] Speaker 03:
Judge McEwen has identified that this court's precedent, which does bind us, doesn't really seem to open the door to the argument that I think you're trying to make.

[00:05:25] Speaker 01:
Well, this was his theory of defense.

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And there is a lot of case law also on the theory of defense, when there's evidence that supports it, and there is evidence that supports it.

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And in my time remaining, I just want to point out what that was, unless the court feels it knows what that is.

[00:05:41] Speaker 01:
There was the pattern of the kind of drug dealing my client was doing that day.

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The officer testified that he saw him sort of walking up and down a block with many down and out people on it.

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Quickly handing drugs and quickly getting cash There's no I mean this is not a sufficiency challenge, right?

[00:06:03] Speaker 04:
You had the opportunity to argue these points for the jury

[00:06:06] Speaker 01:
I think that without the instruction, this argument could not have been as well made, and I'll tell you why.

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The government suggests that my client was carrying his little backpack by one arm.

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In fact, he was carrying it

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On his back truly on his back and there are a couple of citations record citations about that that I just wanted to mention volume 2 page 101 where that officer concedes that there's a picture showing that he had it on his back and volume 4 excerptive record 412 where the officer who actually handled mr. Mr. Alston says that that's what it was.

[00:06:51] Speaker 01:
That's what the situation was.

[00:06:52] Speaker 01:
Okay, so it isn't

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It is that he said these things and as he said he needed a hook.

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He needed an instructional hook.

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The government has been able to say in its brief that the cross-examination council did of officers about people who have guns for hunting, how they store or carry those, or somebody who's in a first responder situation, how he carries his gun, and how a holster's the best thing for that, for that exigency.

[00:07:26] Speaker 01:
That's all subjective, and the government could say that's irrelevant.

[00:07:29] Speaker 01:
But it does bear on the exercise of what is the subjective intent of the person holding the firearm.

[00:07:38] Speaker 04:
And we'll give you two minutes for rebuttal.

[00:07:40] Speaker 04:
I just want to ask you about your Second Amendment issue.

[00:07:44] Speaker 04:
Why was that not forfeited by not raising it in the pretrial motion?

[00:07:49] Speaker 01:
I think that the issue, I've got a timeline here.

[00:07:54] Speaker 01:
And I just briefly want to say that the time we ought to just focus on is June 23rd, 2022, which is when Bruin was decided by this time, this case had already been pending about a year.

[00:08:04] Speaker 01:
So there's no dispute that my client didn't have any reason, had no reason.

[00:08:09] Speaker 01:
No, trial hadn't started yet.

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And then trial started in July and was aborted by somebody in the courtroom having tested positive for COVID.

[00:08:17] Speaker 04:
So it started why couldn't you have brought this argument after Bruin was decided in the in the month that you had?

[00:08:24] Speaker 01:
I'm not saying he couldn't.

[00:08:25] Speaker 01:
There's another reason I think it wasn't good cause to say that he's given up that argument.

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Two months after Bruin, this court had one of those licensing scheme cases, Young versus Hawaii, before it.

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And at that time, it simply remanded for further proceedings.

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And of course, Vance had been lost since 2010 and hadn't been overruled yet.

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So Duarte tells us that it has to do

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Good cause has to do with whether you have a reason to challenge.

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And because Vance is still law, I don't believe that counsel should have been held to that.

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Also, he was his third lawyer.

[00:09:04] Speaker 01:
He got the case about a month before trial was supposed to start.

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And I just think that that's also bears in this case on whether good cause existed.

[00:09:15] Speaker 04:
I'm going to- Okay, we'll put two minutes on the clock for rebuttal.

[00:09:18] Speaker 04:
Thank you.

[00:09:22] Speaker 00:
Good morning, Your Honors.

[00:09:23] Speaker 00:
Jonas Lerman for the United States.

[00:09:25] Speaker 00:
I will start with the jury instruction claim.

[00:09:28] Speaker 00:
This court rejected the same exact claim 17 years ago in Lopez that the defendant raised here in the trial level.

[00:09:35] Speaker 00:
So at trial, his argument was that the model instruction in place at the time was inadequate because it did not define in furtherance of, so there was a great risk that the jury would convict based on mere possession.

[00:09:46] Speaker 00:
You can find that at SCR 213, SCR 121.

[00:09:50] Speaker 00:
That was the argument.

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Mere possession.

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It was not about intent.

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It was that there's too big of a risk of mere possession.

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That's the same claim that this court rejected in Lopez.

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And this court said in Lopez that the infurtherance element itself, by itself,

[00:10:05] Speaker 00:
quote, clearly delineated between mere possession and possession and furtherance.

[00:10:09] Speaker 00:
The court went on to say that the instruction given there, which is the same as the instruction given here, eliminated the possibility, eliminated the possibility that a rational juror would equate mere possession of a firearm with possession of a firearm in furtherance of a drug crime.

[00:10:23] Speaker 00:
And then two years ago, in Irons, the court reached the same conclusion.

[00:10:27] Speaker 00:
The only error that the court found there was that the district court had given an erroneous supplemental instruction

[00:10:33] Speaker 00:
in response to a jury question during deliberations.

[00:10:36] Speaker 00:
The supplemental instruction was the basis for a new trial.

[00:10:39] Speaker 00:
The original instruction, which did not define in furtherance of, the court said there was no problem with that instruction, and any claim to the contrary could be readily rejected.

[00:10:48] Speaker 00:
So Irons and Lopez are the binding authority on this question.

[00:10:52] Speaker 00:
The district court cannot have abused its discretion, which is the standard that the defense invokes here,

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let alone plainly erred by following this court's binding precedent.

[00:11:02] Speaker 00:
If the court has other questions on the jury instruction issue, I can address them, but otherwise I'll turn to the Second Amendment.

[00:11:09] Speaker 00:
So on the Second Amendment claim, there are two reasons you don't need to wade into the Bruin history and tradition analysis here.

[00:11:18] Speaker 00:
The first, as Judge Bress has already alluded to, is that the claim is waived.

[00:11:22] Speaker 00:
It is waived for the same reasons that this court one month ago found that a nearly identical claim was waived, and that's in Jones.

[00:11:29] Speaker 00:
We filed a 28-J letter on June 13th about that.

[00:11:33] Speaker 02:
And that's non-precedential.

[00:11:35] Speaker 00:
It is not presidential, but it's highly persuasive authority from a month ago.

[00:11:39] Speaker 00:
I would also note that the claim was the same.

[00:11:42] Speaker 00:
In fact, the appellant in that case is also represented by my friend on the other side here.

[00:11:47] Speaker 00:
If you compare the opening briefs in those two cases, the arguments against waiver are the same.

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The arguments for good cause are the same.

[00:11:54] Speaker 00:
And the rationale of Jones applies with even greater force here.

[00:11:59] Speaker 00:
There, the defendant went to trial 18 days after Bruin had been decided, and this court said that Bruin gave him the tools he needed to argue that the 922G1 was unconstitutional as applied to him.

[00:12:15] Speaker 00:
and that Bruin gave him the tools to argue that Vance was no longer good law.

[00:12:20] Speaker 00:
So that was 18 days.

[00:12:21] Speaker 00:
Here we have 46 days between when Bruin was decided and when Mr. Alston's trial began.

[00:12:27] Speaker 00:
So he had a month and a half.

[00:12:28] Speaker 02:
Well, it might be somewhat persuasive, but I also think Ms.

[00:12:32] Speaker 02:
Sun made a legitimate argument.

[00:12:34] Speaker 02:
We have Vance from 2010.

[00:12:37] Speaker 02:
We have a situation here where it's

[00:12:41] Speaker 02:
pure question of law, which I think we would review de novo.

[00:12:45] Speaker 02:
So I'm not sure that there's any reason that we necessarily should follow the rationale of Jones, where it's not clear to me they really even considered this in the same way that we're considering it in the same posture.

[00:13:00] Speaker 00:
You know, I watched the oral argument video of it, and this was a major topic of discussion, as I recall, this waiver question.

[00:13:08] Speaker 00:
And that was the basis that they rested their decision on.

[00:13:13] Speaker 00:
It would be curious to reach the opposite conclusion here where, again, the delay is more than twice as long as the delay there.

[00:13:20] Speaker 00:
There's no claim that Mr. Alston's counsel wasn't aware of Bruin.

[00:13:25] Speaker 00:
I think I would submit to the court that everybody who practices federal criminal law immediately was aware of Bruin.

[00:13:31] Speaker 00:
Even before Bruin, plenty of defendants nationwide were challenging

[00:13:39] Speaker 00:
922-G1 and other 922-G provisions on Second Amendment grounds.

[00:13:44] Speaker 00:
But even if you disagree with us on the waiver point, there's a second threshold reason that you don't need to do the history and tradition analysis here.

[00:13:53] Speaker 00:
And that's that even if the claim is not waived, the Second Amendment protects only law-abiding people who bear arms for a lawful purpose.

[00:14:01] Speaker 00:
And the lawful purpose identified in Heller and Bruin is, of course, self-defense.

[00:14:06] Speaker 00:
in the home in Heller and in public in Bruin.

[00:14:10] Speaker 00:
That's not Alston.

[00:14:11] Speaker 00:
He cannot get past Bruin's first step because he carried his revolver while committing what the district court found was a felony theft.

[00:14:18] Speaker 00:
That was a finding at sentencing that the defense is not challenging.

[00:14:21] Speaker 00:
That triggered a four-level guidelines enhancement.

[00:14:24] Speaker 00:
And he possessed his pistol while dealing fentanyl just a few blocks from here.

[00:14:30] Speaker 00:
These are not activities protected by the Second Amendment, not under any reasonable reading of Heller or Bruin or Rahimi or even this court's decision in Duarte.

[00:14:43] Speaker 00:
If you compare him to the challengers in those cases, he's nothing like them.

[00:14:47] Speaker 00:
He's not like the DC police officer in Heller who wanted to have a gun at home.

[00:14:51] Speaker 00:
He is not like the law-abiding citizens in Bruin who wanted to carry their guns in public for lawful self-protection.

[00:15:01] Speaker 00:
He's not even like the defendant in Duarte who possessed a gun while riding as a passenger in a car.

[00:15:09] Speaker 00:
So those are two threshold reasons you don't even need to get into the full Bruin analysis here.

[00:15:14] Speaker 00:
But if this court does, you should affirm for all the reasons we set out in our briefs and our mini 28-J letters.

[00:15:23] Speaker 00:
I'm happy to address those points if the court has questions.

[00:15:26] Speaker 00:
But otherwise, we would ask that you affirm.

[00:15:28] Speaker 00:
Thank you.

[00:15:29] Speaker 04:
Thank you.

[00:15:38] Speaker 01:
What we have here is a defendant who said his theory of defense, leaving aside all the case law about what in furtherance of instructions means.

[00:15:46] Speaker 01:
The standard for giving a theory of defense instruction is if there's evidence to support it, and it's a correct statement of the law.

[00:15:54] Speaker 01:
both things, which were aspects of the instruction that my client asked for.

[00:16:00] Speaker 01:
Let's leave aside, well, let's not leave aside Irons.

[00:16:04] Speaker 01:
I think what Irons involved was a case in which the defendant asked for an instruction, but conceded that language that didn't have what he wanted could be given.

[00:16:17] Speaker 01:
And then when the jury wanted clarification, stood on the idea that there should be no instruction given.

[00:16:24] Speaker 01:
It's not as though he said, and that was why he could not raise the issue, or if it was, it was plain error, the issue of whether the promote and forward the offense purpose language is a proper instruction.

[00:16:40] Speaker 01:
There's no doubt that when a defendant says, my theory of the case is that I did not possess this firearm to promote or facilitate an offense, a drug offense.

[00:16:51] Speaker 01:
When he says that's my defense and I would like an instruction that says that and it's consistent with the law, then I believe it is an abuse of discretion for the district court not to give it because it is an inadequate statement of the law.

[00:17:06] Speaker 04:
On the 922G1, just to move to that briefly, are there any material distinctions between what happened here and what happened in Jones recognizing that Jones is not binding?

[00:17:16] Speaker 01:
Both are, well, both the, I am filing a petition for rehearing in Jones.

[00:17:21] Speaker 01:
And I did get an extension of the deadline that will be in a couple of weeks.

[00:17:26] Speaker 01:
The answer is these are both defendants who have

[00:17:32] Speaker 01:
Whose lawyers did not and both of them changed lawyers fairly frequently during the pendency of their cases with the result that the trial lawyers did not really get or the the lawyers who tried the cases Because both were trials did not get the case until much before and That's a good cause argument is the switch in council and

[00:18:00] Speaker 01:
know that I think it contributes to whether there would be good cause because rule twelve tells us that good cause has to do with both well rule twelve talks about both whether an argument is reasonably available and we would say that it was not here but also I think there has to be some consideration of of

[00:18:25] Speaker 01:
Whether counsel is more concerned with preparing for trial in the immediate run.

[00:18:29] Speaker 01:
Just that's what I used to do.

[00:18:30] Speaker 01:
That's what I actually really like to do.

[00:18:33] Speaker 01:
So trying cases is hard and preserving issues like that is is

[00:18:41] Speaker 01:
should take that into account.

[00:18:42] Speaker 01:
The last thing I want to say is that I was at the oral argument, and Mr. Lerman will remember, there was a discussion about how the motion could have been filed after the conviction.

[00:18:52] Speaker 01:
But rule 12 says you've got to file it before trial starts.

[00:18:57] Speaker 01:
And so I don't think that made it into the opinion, but I know that that was sort of in their minds.

[00:19:03] Speaker 01:
And I just think that that is something that deserves another looks.

[00:19:07] Speaker 01:
And I just ask you not to rely on Jones.

[00:19:09] Speaker 01:
Thank you.

[00:19:10] Speaker 04:
Thank you.

[00:19:11] Speaker 04:
We thank both counsel for the helpful briefing and argument.

[00:19:14] Speaker 04:
This matter is submitted.