[00:00:00] Speaker 02:
Are you going to go first, I think?

[00:00:03] Speaker 02:
And then you saw before, let us know how much time you want to reserve for rebuttal, and we'll all endeavor, probably unsuccessfully, to stick with that.

[00:00:14] Speaker 01:
Yes, Your Honor.

[00:00:15] Speaker 01:
Sam Arab for Mr. Kearns.

[00:00:17] Speaker 01:
I'd like to reserve three minutes for rebuttal.

[00:00:20] Speaker 01:
There are two cases that the Court should consider here to inform the rule of decision.

[00:00:24] Speaker 01:
Those are United States v. Lucas and United States v. Messas de la Cruz.

[00:00:29] Speaker 01:
Sorry, what was the second?

[00:00:31] Speaker 01:
Mesas de la Jus.

[00:00:32] Speaker 01:
Excuse me, Jesus.

[00:00:36] Speaker 01:
In the Jesus, this circuit remanded a case after the district court made two comments on the record regarding a defendant's silence.

[00:00:49] Speaker 01:
The facts in that case were that defendant was charged

[00:00:58] Speaker 01:
was charged with kidnapping, that information ended up in the pre-sentence report, but the witnesses, to substantiate that charge, didn't show up for the evidentiary hearing.

[00:01:07] Speaker 01:
Now, as a consequence for that, it was still in the PSR, but they didn't testify, the alleged victims.

[00:01:15] Speaker 01:
Now, at the sentencing hearing, the judge said the following, you tell me about the unavailable witness's story, that this is not a true story, but I don't have evidence as to any other truer fact.

[00:01:28] Speaker 01:
And the second comment the judge made in that case, asking the defense counsel, wouldn't a statement under oath from your client that it didn't happen be required to substantiate an evidentiary hearing?

[00:01:43] Speaker 01:
If you compare that to what the district court did in this case,

[00:01:47] Speaker 01:
First of all, after having a colloquy with defense counsel for a little while at the beginning of the hearing, before he heard any evidence, the court denied all defense objections without even hearing a single piece of evidence.

[00:02:00] Speaker 01:
And that's in the X of the record, page 20 to 21.

[00:02:04] Speaker 01:
When defense counsel, me, objected to that, called that illegal and burden shifting, he permitted some testimony

[00:02:16] Speaker 01:
and interrupted a cross-examination to say, if you want to add to your evidence, you can put Mr. Kearns on the stand under oath and have him deny that he handled those weapons.

[00:02:26] Speaker 01:
Now you compare that with the Jesus.

[00:02:28] Speaker 01:
Excuse me?

[00:02:30] Speaker 02:
About one, two, three, four, four back in that.

[00:02:37] Speaker 02:
And the government, I think, messed up here, because in their brief, in the government's brief, in their providing this colloquy, they left out something that I think is actually very helpful to the government, which is the court said, before it said what you just said, the court said, I guess if you want to add to your evidence,

[00:02:58] Speaker 02:
You can put Mr. Kearns on the stand under oath and have him deny that he handled those weapons, if that's the evidence.

[00:03:04] Speaker 02:
So that's pretty important.

[00:03:05] Speaker 02:
It's not actually in the government's brief.

[00:03:06] Speaker 02:
I'm not sure why they get it.

[00:03:07] Speaker 02:
The government screwed that up, I think.

[00:03:10] Speaker 02:
They must have, when they were transcribing into the brief, and you're probably aware of this, because you know what happened here, and you didn't tell the government, which is, I suppose, understandable.

[00:03:18] Speaker 02:
But that's pretty important, because the court's actually saying, if you want to add to your evidence.

[00:03:23] Speaker 02:
So it's not consistent with the way you were just characterizing it.

[00:03:27] Speaker 02:
the court believed that there was no evidence and that basically your client lost because the only evidence you know the only way that your client could

[00:03:36] Speaker 02:
could provide any evidence.

[00:03:37] Speaker 02:
Instead, he says, if you want to add to your evidence.

[00:03:39] Speaker 02:
And so that's different, because he's always saying there's evidence there.

[00:03:43] Speaker 02:
But if you want more, if you want more.

[00:03:45] Speaker 02:
And that, I think, makes it sort of different than the Macy's-Tazus case.

[00:03:51] Speaker 01:
I disagree, because immediately thereafter, the judge says a couple of sentences down, after I explained it is the government's burden.

[00:04:04] Speaker 01:
And he said, I understand.

[00:04:06] Speaker 01:
And the judge then explicitly said that if you want to meet the preponderance, you can put Mr. Kearns on the stand and have him denied that he touched those weapons under oath.

[00:04:18] Speaker 01:
And that's actually the record.

[00:04:20] Speaker 02:
You know, I get that.

[00:04:20] Speaker 02:
And if you read that in isolation, which is unfortunately the way it was presented in the government's brief, because the government forgot, then it does sound like maybe saying, listen, if you want to meet the preponderance.

[00:04:29] Speaker 02:
But if you read that in conjunction with the statement that was

[00:04:33] Speaker 02:
Like, literally, the court statement, two statements earlier, where he says, if you want to add your ad, I think we have to read those things together, correct?

[00:04:39] Speaker 01:
Well, yes.

[00:04:40] Speaker 01:
But then I would submit to you, Judge Van Dyck, that let's read it together what we said at the very beginning before you heard any testimony.

[00:04:47] Speaker 01:
I'm going to deny all your objections before he hears any testimony.

[00:04:51] Speaker 01:
And then at the very end, the fourth time he comments on my client's silence is,

[00:04:57] Speaker 01:
We do not have any statements from any witnesses who didn't testify, and I compare that to what the court said in the Jesus.

[00:05:03] Speaker 01:
I don't have any other evidence as to a truer story.

[00:05:06] Speaker 01:
This is a more direct evidence, direct.

[00:05:09] Speaker 01:
Now, the only witness who wasn't there who didn't testify was my client.

[00:05:13] Speaker 01:
We did posit some evidence.

[00:05:14] Speaker 01:
That evidence came from my investigator David Gesseritz.

[00:05:17] Speaker 04:
But the statement in Mesa de Jesus is stronger than that, because there the court's saying, wouldn't I have to see something from your client?

[00:05:27] Speaker 04:
For instance, a statement under oath, that's not what we have here.

[00:05:30] Speaker 04:
I mean, I just, we don't have something that strong.

[00:05:34] Speaker 01:
I disagree.

[00:05:35] Speaker 01:
When the court explicitly says in the beginning, I'm going to deny all their objections, I haven't heard a single piece of evidence, then he follows up by interrupting our cross-examination by saying, we're going to get the same answer to all these questions as I'm asking about the ATF forms.

[00:05:51] Speaker 01:
If you want to actually meet the preponderance, Mr. Eric, why don't you put him on the stand to have him deny that he had them?

[00:05:56] Speaker 01:
And I think that is a burden shifting.

[00:05:59] Speaker 01:
Instead of making the government prove both the quality and the quantum of the evidence of their case.

[00:06:04] Speaker 04:
I don't think so because then you say it's the government's burden of proof and the court of course says, I know what the burden of proof is.

[00:06:12] Speaker 04:
He's not saying no, it's your burden of proof.

[00:06:14] Speaker 04:
He's saying, I know whose burden of proof it is.

[00:06:16] Speaker 01:
Yes, yes.

[00:06:17] Speaker 01:
But in Mesas de Jesus, the circuit concluded that based on these statements,

[00:06:24] Speaker 01:
It is likely on a de novo review, which is what it would be in this case for the Fifth Amendment violation that we're offering.

[00:06:31] Speaker 01:
that he drew a negative inference from my client's silence.

[00:06:35] Speaker 01:
And that's what we're suggesting that he did.

[00:06:37] Speaker 01:
Because four different times, he commented, well, three different times he commented on my client's silence, he commented on the fact that he didn't testify.

[00:06:44] Speaker 01:
Now compare that to the case in the United States of E. Mitchell, a 1998 case from the United States Supreme Court, where the defendant in that case was one person of multiple co-conspirators in a scheme of selling cocaine, if I recall that correctly.

[00:07:02] Speaker 01:
She didn't take a deal, she didn't cooperate with the government, and her co-conspirators testified as to her activities.

[00:07:10] Speaker 01:
Now as a consequence of that, the court in that case suggested if you don't testify,

[00:07:16] Speaker 01:
If you don't testify at the sentencing hearing, then we're gonna hold that against you.

[00:07:20] Speaker 01:
And there was a circuit split on that issue.

[00:07:24] Speaker 01:
The Supreme Court said, very unequivocally, that not only does the right to remain silent, and that's what that case stands for, extend all the way through sentencing, because in many circumstances, having your client testify at sentencing, they'll become, quote unquote, I don't remember the exact score, the unwitting instrument of their own condemnation.

[00:07:46] Speaker 01:
Now, of course, it is the government's burden of proof, and that's what I kept referring back to.

[00:07:51] Speaker 01:
And that's the other case that I want, of course, to focus on today.

[00:07:54] Speaker 01:
It's the United States v. Lucas.

[00:07:56] Speaker 01:
It was taken on bank, and the decision was rendered in May.

[00:08:00] Speaker 01:
In that case, the defendant

[00:08:02] Speaker 01:
I see I'm a little bit over my time here, but I'll just finish this point really quickly.

[00:08:07] Speaker 01:
The defendant, what the evidence in that case was a screenshot from his phone that he was holding something that looked like a pistol or a firearm.

[00:08:15] Speaker 01:
That was the evidence.

[00:08:17] Speaker 01:
Lucas pleaded guilty to possession of a firearm under the 922 G1 statute.

[00:08:24] Speaker 01:
And that was the evidence.

[00:08:25] Speaker 01:
He pleaded guilty to holding that firearm in that photo.

[00:08:28] Speaker 01:
Now, the question at sentencing, which before it was taken on bond, the circuit called insufficient, was whether the magazine attached to that firearm was a high-capacity magazine.

[00:08:40] Speaker 01:
Now, the evidence they had in this case was a jail phone call where

[00:08:44] Speaker 01:
there was second-hand information about him actually possessing that kind of high-capacity magazine.

[00:08:48] Speaker 01:
They had photos, and the fact that the defendant pleaded guilty to holding that firearm.

[00:08:53] Speaker 01:
Now, in this case, the high-capacity firearm, there is no such evidence.

[00:08:58] Speaker 01:
The evidence in this case for that high-capacity firearm... Which firearm are you talking about?

[00:09:02] Speaker 03:
The one with the absent witness or the one that the agent testified about?

[00:09:07] Speaker 01:
the absent witness.

[00:09:09] Speaker 03:
So, well, I'm not sure... The judge said he didn't rely on that, right?

[00:09:12] Speaker 01:
No, Your Honor.

[00:09:13] Speaker 01:
He relied... So, the fact that he imposed the high-capacity magazine enhancement means he relied on something.

[00:09:19] Speaker 01:
He relied on a photo of what they call an AR-style pistol.

[00:09:24] Speaker 01:
That photo.

[00:09:24] Speaker 03:
And the agent's testimony about it, correct?

[00:09:27] Speaker 03:
Yes.

[00:09:27] Speaker 03:
Yeah.

[00:09:28] Speaker 03:
OK.

[00:09:29] Speaker 03:
So we're not talking about an absent witness here.

[00:09:31] Speaker 01:
No.

[00:09:31] Speaker 03:
We're talking about an agent, experienced with firearms, describing the evidence that he sees in the photograph.

[00:09:37] Speaker 03:
And you're saying that's insufficient.

[00:09:39] Speaker 01:
I am saying that.

[00:09:40] Speaker 01:
It was insufficient in Lucas because they- Before the panel.

[00:09:43] Speaker 01:
Excuse me?

[00:09:44] Speaker 01:
Before the panel in Lucas.

[00:09:45] Speaker 01:
No, it was insufficient.

[00:09:47] Speaker 01:
Lucas was taken en banc to address the question whether we should change it from clear and convincing to preponderance of the evidence standard in this circuit.

[00:09:55] Speaker 01:
And then it was remanded, both in the original case and in the subsequent en banc case, to determine whether this is sufficient evidence.

[00:10:03] Speaker 01:
And they commented specifically on application note two and those.

[00:10:07] Speaker 01:
But more importantly,

[00:10:10] Speaker 02:
It's a grainy photo, and when I asked... I wanna make sure we're about ready out of time, so I'll give you a minute here, but go ahead and, unless either of my colleagues has questions for now.

[00:10:20] Speaker 02:
I just wanna make sure we have time.

[00:10:22] Speaker 01:
The last thing I'll say, I asked Special Agent Inc.

[00:10:25] Speaker 01:
Do you know if this is a firearm?

[00:10:27] Speaker 01:
Do you know what the model is?

[00:10:28] Speaker 01:
Do you know what the make is?

[00:10:29] Speaker 01:
Do you have the serial number?

[00:10:30] Speaker 01:
I don't know, I don't know, I don't know.

[00:10:32] Speaker 01:
I can't tell from the photo.

[00:10:33] Speaker 01:
Do you know if it's chambered in 22?

[00:10:35] Speaker 01:
Can't tell from the photo.

[00:10:53] Speaker 00:
Good morning, Your Honors.

[00:10:54] Speaker 00:
May it please the Court, Kelsey Sable from the District of Montana on behalf of the United States.

[00:11:00] Speaker 00:
The District Court correctly calculated the guideline range that applies to Mr. Kearns in this case.

[00:11:06] Speaker 00:
With respect to the base offense level, the District Court based that on the photograph of Mr. Kearns holding the AR-style firearm and Agent Inks

[00:11:15] Speaker 00:
testimony, and Agent Inc.

[00:11:17] Speaker 00:
testified that that photo depicted an AR-style firearm with a general 30-round AR-style magazine, and he was able to tell that because of the magazine's size relative to its grip, and he's been in...

[00:11:35] Speaker 02:
Most AR style, you know, .22 rimfire firearms use a magazine that looks like, it looks like a regular AR magazine.

[00:11:44] Speaker 02:
You know, I was trying to look at that picture.

[00:11:45] Speaker 02:
But do I remember correctly that there was no, you know, the FFL sales records, there was no record of having sold a .22 rimfire caliber AR style pistol

[00:12:01] Speaker 02:
Is that correct in those records?

[00:12:03] Speaker 02:
I thought I remember reading that somewhere.

[00:12:04] Speaker 00:
That's correct.

[00:12:05] Speaker 02:
And then there was none when they actually looked at the inventory in the store.

[00:12:12] Speaker 02:
There was none in the inventory in the store.

[00:12:14] Speaker 02:
Is that correct, too?

[00:12:15] Speaker 00:
That is correct, Your Honor.

[00:12:16] Speaker 02:
So when you put those two things together, that seems like... Was there a record of selling a AR-style pistol that was chambered in, I assume, 223 or 556, not Rimfire?

[00:12:29] Speaker 00:
Not that's in the record, Your Honor.

[00:12:31] Speaker 00:
Not that was established by the record that was recovered.

[00:12:33] Speaker 02:
Was there one in inventory?

[00:12:35] Speaker 02:
No, not that's in the record I guess I suppose that somebody that the I guess the FFL records could have been incomplete I suppose you know which or I suppose somebody could have been bringing it in to possibly pawn the gun and then he handled it and then Left with it.

[00:12:52] Speaker 02:
Is that what is thinking as to why?

[00:12:55] Speaker 02:
there's no record of one one type or the other and either in inventory, you know when they went and looked and saw what physically was in inventory or in the sales records and

[00:13:05] Speaker 00:
Well, so I think, Your Honor, it's difficult to tell exactly what, so we don't know from the record what exact firearm that is depicted in the photo.

[00:13:17] Speaker 00:
You know, the agent was able to testify it's AR style.

[00:13:20] Speaker 00:
The agent testified there were AR style firearms recovered from the search of the pawn shop, but we don't know the make, model, or caliber of that serial number.

[00:13:31] Speaker 00:
And the agent was able to testify that there were no 22 caliber AR style firearms recovered during the execution of the search warrant.

[00:13:41] Speaker 00:
But that's not the question under application note two with respect to the enhanced base offense level.

[00:13:49] Speaker 00:
The question under application note two is whether the firearm has an attached tubular device that takes 22 caliber rimfire.

[00:13:57] Speaker 00:
And as the agent testified, you know this firearm that we're looking at in the photo Has a general 30 round magazine.

[00:14:04] Speaker 00:
It's clear from the photo.

[00:14:05] Speaker 02:
This is a box style magazine So that's why even so is that maybe a misunderstood something so if it's if it takes 22 rimfire But it's a boxed out magazine then it's that then it still qualifies as a higher capacity firearm for purchase of the enhancement

[00:14:20] Speaker 00:
No, I apologize your honor I don't and this isn't really clear in the record I but it's our understanding that those two things a tubular device that takes 22 caliber rimfire and a box style magazine are mutually exclusive you don't have They are no, so I understand that but like I don't but I understood his argument to be

[00:14:42] Speaker 02:
that this could have been a .22 rimfire firearm that used a box style magazine.

[00:14:47] Speaker 02:
And they make those things.

[00:14:48] Speaker 02:
And the box style magazines for .22 rimfire look, if I'm from me to the back of the room, they look like a regular AR magazine.

[00:14:55] Speaker 02:
They're not skinnier.

[00:14:57] Speaker 02:
They look like a full size AR magazine.

[00:14:59] Speaker 02:
So I think that's what his argument here is, is it could have been that.

[00:15:02] Speaker 02:
And so it's somewhat persuasive evidence that there is no record of having sold one of those, nor was there one in inventory, as I understood the record.

[00:15:13] Speaker 00:
That's correct, Your Honor.

[00:15:14] Speaker 02:
And I thought I was asking you, is there any record of having sold an AR-style non-22 rimfire firearm in the sales records?

[00:15:21] Speaker 02:
And you're saying there is no record of that?

[00:15:23] Speaker 00:
There's no record.

[00:15:24] Speaker 00:
There's nothing in the record of one of those firearms being sold.

[00:15:27] Speaker 00:
It is in the record that there were no 22.

[00:15:30] Speaker 02:
One of those, just to make clear, I mean a regular AR that's just not rimfire.

[00:15:34] Speaker 02:
There's nothing in the record about one of those being sold by the pawn shop?

[00:15:37] Speaker 00:
I don't believe so, Your Honor, no.

[00:15:40] Speaker 00:
But there is evidence in the record that there were AR-style firearms that were not chambered in any type of .22 caliber ammunition that were recovered from the pawn shop during the search warrant.

[00:15:49] Speaker 00:
And we submit that that is sufficient under the preponderance standard.

[00:15:53] Speaker 02:
Any of those pistol style?

[00:15:55] Speaker 02:
Do you know?

[00:15:55] Speaker 00:
That's not in the record your honor.

[00:15:57] Speaker 00:
No, I don't know But again we submit that sufficient under the preponderance standard to apply the base offense level based on this firearm

[00:16:08] Speaker 00:
And with respect to the second guideline enhancement, the four-level enhancement for the number of firearms, we think it is clear from the record when you look at the context of the district court's comments that it was not burden shifting and that it was not placing the burden on Mr. Kearns to prove that he did not handle these firearms.

[00:16:31] Speaker 00:
What the district court was doing was

[00:16:38] Speaker 00:
You know, at the time the district court made these comments, Agent Inc.

[00:16:42] Speaker 00:
was testifying that he could not determine whether Mr. Kearns physically put his hands on each of these firearms.

[00:16:50] Speaker 00:
And the district court was saying that he's not going to be able to give us this evidence.

[00:16:55] Speaker 00:
And so here's one way that we could take this evidence with respect to whether Mr. Kearns touched the firearms.

[00:17:03] Speaker 00:
And the district court made very clear in its eventual ruling on this enhancement at excerpts of the record 76 that the government, it said the government has met its burden by a preponderance of the evidence on this enhancement and clearly understood that it had the burden.

[00:17:21] Speaker 02:
Where did it say that again?

[00:17:22] Speaker 02:
At 76?

[00:17:24] Speaker 00:
Excerpts of the record 76, Your Honor.

[00:17:27] Speaker 00:
The district court said the government has met its burden by a preponderance.

[00:17:31] Speaker 00:
It identified specifically the firearms that it relied on to find that the government met its burden to prove that the defendant was in possession of all of these firearms.

[00:17:41] Speaker 00:
And it went through all of the evidence that the government presented including agent inks testimony and distinguished the cases cited by mr. Kearns And I would also point out your honor that There was sufficient evidence in front of the district court of the firearms that mr. Kearns did touch and did

[00:18:06] Speaker 00:
There is direct evidence that he directly possessed at least eight firearms, even without relying on the firearms that he was listed as the transfer on the form of 4473.

[00:18:19] Speaker 02:
I didn't know we got to eight by that direct evidence.

[00:18:22] Speaker 02:
There was definitely pictures of him touching firearms.

[00:18:26] Speaker 02:
Was there pictures?

[00:18:27] Speaker 03:
Two that he sold, right?

[00:18:29] Speaker 03:
Two that the defendant sold to the pawn shop himself, right?

[00:18:32] Speaker 02:
So your honor there were four that he sold to the pawn shop two of those four were captured on surveillance video stills And so that's part of your evidence because you're counting the other two that aren't even on the video because in theory He had to carry a man or something in order to sell it to the pawn shop

[00:18:46] Speaker 00:
So we do, but I don't think we need to, Your Honor.

[00:18:49] Speaker 00:
And the way I get there is, so there are five firearms, and they're listed in the reply brief on page 14, and that everybody agrees are supported by the surveillance still video of Kearns handling them.

[00:19:02] Speaker 00:
Those include two of the four that he sold to Modern Pawn as a customer.

[00:19:07] Speaker 00:
There are, in addition to that, three more captured on video, the AR-style firearm that we've been discussing.

[00:19:15] Speaker 00:
And then there are two photographs of Mr. Kerns handing long guns to customers.

[00:19:22] Speaker 00:
And none of those three, you know, we were able to identify by specific make, model, or serial number.

[00:19:27] Speaker 00:
But those two long guns are at excerpts of the record 176 and 167.

[00:19:32] Speaker 00:
and so we and as agent ain't testified you know there were no fake firearms or replica firearms recovered during the search you know nobody denies modern pawn you don't know precisely what firearm that was but you know he had a firearm in a video in his hand yes your honor and then there were

[00:19:51] Speaker 00:
I'm sorry, I was going to say then there were the second two of the four that he sold to Modern Pawn as a customer that were supported by the bill sale from Modern Pawn for one of them in ATF form 4473 and then a leads online ticket that Agent Inc.

[00:20:07] Speaker 00:
testified to.

[00:20:09] Speaker 02:
So that's just, I'm sorry, I'm counting here.

[00:20:10] Speaker 02:
That's the five that are on video that we know what those firearms are.

[00:20:15] Speaker 02:
Then two more that he sold.

[00:20:17] Speaker 02:
So we don't have a video, we assume.

[00:20:19] Speaker 02:
And then two more videos that we don't know what the firearm is, but we know he was holding a firearm.

[00:20:25] Speaker 00:
I believe three more, Your Honor, the two long guns and the AR style.

[00:20:28] Speaker 00:
Yes.

[00:20:29] Speaker 00:
And so that alone is sufficient to get us to the eight firearms necessary for that enhancement.

[00:20:42] Speaker 00:
So, Your Honors, I see I'm almost out of time.

[00:20:45] Speaker 00:
So if there are no further questions, we would just request that the court affirm.

[00:20:51] Speaker 02:
Any other questions from my colleagues?

[00:20:53] Speaker 02:
All right.

[00:20:53] Speaker 02:
Thank you.

[00:20:53] Speaker 02:
Thank you.

[00:20:54] Speaker 02:
We'll hear from opposing counsel.

[00:20:58] Speaker 01:
Thank you.

[00:21:01] Speaker 01:
My argument on appeal isn't that that's a .22 caliber.

[00:21:04] Speaker 01:
My argument on appeal is that we don't know what that is.

[00:21:07] Speaker 01:
There wouldn't be any record of sold firearms if, in fact, it is a BB gun, if, in fact, it's some form of replica, if it's a firearm at all.

[00:21:15] Speaker 01:
My contention is that if you're going to seek a high-capacity enhancement, you've got to prove two things.

[00:21:19] Speaker 01:
Number one, that it's a firearm, and number two, that it's a high-capacity magazine.

[00:21:23] Speaker 01:
In Lucas, they remanded on evidence that was twice as strong.

[00:21:29] Speaker 01:
They knew it was a firearm.

[00:21:31] Speaker 01:
The magazine protruded from the handle of the pistol.

[00:21:35] Speaker 01:
They couldn't testify with experts whether there was a blocker in that magazine.

[00:21:39] Speaker 01:
Now, that was sufficient in Lucas to remand for resensing under the preponderance standard.

[00:21:44] Speaker 01:
It should be here, too, because we don't have any evidence in the record what kind of firearm this is.

[00:21:50] Speaker 01:
And as you pointed out, Judge Van Dyke, from here to there, it may look like one.

[00:21:54] Speaker 01:
There are BB guns that are designed to look like real firearms, look like AR-style pistols.

[00:21:59] Speaker 01:
They sell for hundreds of dollars.

[00:22:00] Speaker 01:
And in a pawn shop like this one, where the firearms, and if you look at one of the photos, I think it's exit 143, they're on the wall behind the counter.

[00:22:09] Speaker 01:
The rest of the store is for consuming goods, jewelry and other things.

[00:22:14] Speaker 01:
They wouldn't necessarily be a record.

[00:22:16] Speaker 01:
And considering the way this specific pawn shop was, yes.

[00:22:21] Speaker 03:
I understand that there is at least a speculative possibility.

[00:22:25] Speaker 03:
that this was an error.

[00:22:28] Speaker 03:
But given the agent's overall investigation, the absence of any findings of imitation or replica firearms, what's unreasonable about the district judge inferring from circumstantial evidence and the direct testimony?

[00:22:48] Speaker 03:
Yeah, this was probably a real firearm of a style that qualifies for the enhancement.

[00:22:54] Speaker 01:
Well, with respect, I think that turns the constitutional provisions that require them prove the case on its head.

[00:23:01] Speaker 03:
I think it's the government's... No, it simply says, I have incomplete evidence here, but all the evidence in front of me suggests that this enhancement should apply.

[00:23:14] Speaker 01:
Well, it doesn't.

[00:23:15] Speaker 01:
When I asked, all the evidence doesn't suggest that.

[00:23:19] Speaker 01:
The evidence actually suggests that he doesn't know what it is.

[00:23:23] Speaker 01:
And he never went there and actually recovered those firearms.

[00:23:27] Speaker 01:
And the absence of information shouldn't go against my client.

[00:23:32] Speaker 01:
And the fact that there is no other evidence that it couldn't possibly apply shouldn't go against my client.

[00:23:38] Speaker 01:
The government has the duty to demonstrate that that in fact applies.

[00:23:41] Speaker 03:
It sounds like, though, you're arguing for not just clear and convincing evidence, but proof beyond a reasonable doubt.

[00:23:49] Speaker 01:
No, Your Honor.

[00:23:50] Speaker 01:
I am not.

[00:23:50] Speaker 01:
I mean, again, I refer to this.

[00:23:54] Speaker 01:
Let's analogize this to Lucas.

[00:23:56] Speaker 01:
In Lucas, they knew it was a firearm.

[00:23:58] Speaker 01:
There was no need for circumstantial evidence.

[00:24:01] Speaker 01:
They knew that a magazine protruded out of it.

[00:24:04] Speaker 01:
But the only thing they didn't know is, is there a blocker in there?

[00:24:08] Speaker 01:
And they had expert testimony of this issue.

[00:24:10] Speaker 01:
And it was still remanded for sentencing under the preponderance standard.

[00:24:14] Speaker 01:
Now, taking this in isolation, that specific object,

[00:24:21] Speaker 01:
It's a grainy photo, a still photo from a surveillance.

[00:24:24] Speaker 01:
And that's the only evidence it has.

[00:24:26] Speaker 01:
And the evidence they have is, I'm looking at this, and this is what it looks like.

[00:24:31] Speaker 01:
Thank you.

[00:24:31] Speaker 02:
So I think we're taking you way over.

[00:24:34] Speaker 02:
And we appreciate your argument.

[00:24:36] Speaker 02:
Let me make sure my colleagues don't have any further questions.

[00:24:39] Speaker 02:
I don't think we can see none.

[00:24:41] Speaker 02:
Thank you both for your argument.

[00:24:42] Speaker 02:
Thank you.

[00:24:42] Speaker 02:
And we'll submit this case as of date.

[00:24:53] Speaker 02:
case.