[00:00:00] Speaker 04: So we'll go ahead and move on to argument in our second case set for today, which is United States v. Rivera, case number 24-673. And we'll hear first from Mr. Fish. [00:00:13] Speaker 02: Good morning, Your Honors, and may it please the Court, Eric Fish, appearing for Mr. Rivera, the appellant. I'd like to reserve five minutes of my time for rebuttal. So I'd like to begin with the sentencing issues in this case, and in particular the drug approximation issue. [00:00:27] Speaker 02: This case is squarely controlled by United States versus Gonzalez Sanchez, and the factual similarities are remarkable. In Gonzalez Sanchez, the defendant flushed an amount of drugs down the toilet, and in Gonzalez Sanchez, the judge used money found in the residence to determine the amount of drugs that were missing to approximate the amount of drugs. [00:00:49] Speaker 02: And in that case, the finding was reversed, and this court instructed that in order to conclude that a certain amount of drugs were at the premises based on an amount of money, one needs a finding based on the record made by a preponderance of the evidence that the currency seized was the proceeds of a drug transaction. Without that, conversion into cash is improper. [00:01:13] Speaker 04: So was there a jury, a special jury verdict in Gonzalez-Sanchez that found the amount of drugs? [00:01:26] Speaker 02: There was no special jury verdict discussed in the opinion, Your Honor. There is a special jury verdict here. I can distinguish that. [00:01:33] Speaker 04: Yeah, I guess that's what I'm sort of leaning into is that seems a pretty easy distinction in this case where you have a jury that actually found a specific amount. So why isn't that enough? [00:01:47] Speaker 02: Well, so the jury verdict does not have estoppel consequences in this case for two principal reasons. First, the jury was instructed that they could find the money forfeitable either because it was the proceeds directly or indirectly of the drug dealing or because it was intended to be used in the future for the drug dealing. That latter basis, which was available to the jury based on its instructions, would not support the drug approximation. [00:02:19] Speaker 02: In addition, the jury's instructions said it could find it was either direct or indirect, the connection between the money and the drugs. If the connection is indirect, that is through some other item being sold or some other feature of Mr. Rivera's conduct that's connected to but not itself selling methamphetamine, that would also not support the drug approximation. So for both of those reasons, the jury verdict is distinguishable. The judge also did not rely in sentencing on this case on the jury's special forfeiture verdict. [00:02:50] Speaker 02: The only factor the judge discusses in opposing the sentence is the money that was found. And so we don't think that the forfeiture verdict supports the enhancements. In addition, the judge needed to sort of specify the amount of money, specify this particular source of the money, and go through an analysis of, you know, on the record by a preponderance of the evidence, of how that money supports the conclusion with indicia that the money was from drug transactions that a certain amount of methamphetamine was present. [00:03:27] Speaker 02: Cases cited in Gonzalez Sanchez that satisfy this condition have much higher sort of thresholds of evidence than was present here. So for example, in Stevenson, members of the defendant's drug distribution ring habitually arranged their proceeds in a particular and readily identifiable manner. We don't have that here. We don't have evidence of how money from drug transactions were arranged. Also, in United States v. Hicks, the defendant admitted that the majority of the money came from drug sales. [00:03:59] Speaker 02: Obviously, we don't have any sort of admission here. [00:04:02] Speaker 02: So for that reason, I believe the drug approximation enhancement should be reversed. I can move now to the premises enhancement. [00:04:12] Speaker 02: The purpose of the premises or stash house enhancement is not to impose higher sentences on people who sell drugs and also live in a residence. The purpose is to target the particular harms that come from residents or buildings, residences or buildings that are specifically for the purposes of either manufacturing or distributing drugs. And here, you know, this was Mr. Rivera's home. There's lots of evidence. I encourage this court to look at the photographs. In the excerpts of record, it is furnished, there are decorations on the walls, there's a television, there's a foosball table, there's an arcade game, there's beds, there's a full dining room. [00:04:52] Speaker 02: This was Mr. Rivera and two other people's primary residence, and the mere fact of the presence of drugs doesn't make it a stash house. So the guidelines specifically is concerned with manufacturing and distributing. There is zero evidence. [00:05:09] Speaker 01: But in this case, there's a lot of evidence of what this man and his girlfriend were doing. Doesn't that convert it into a stash house? [00:05:19] Speaker 02: I'm sorry, what they were doing? [00:05:21] Speaker 01: Putting money – putting things down the toilet and all that sort of thing. [00:05:25] Speaker 02: Right. So the presence of drugs in the house is sort of one piece of evidence. Right. The jury instruction – the notes in the jury, I'm sorry, the notes in the guideline instruct this court and the sentencing court to look at the uses, the lawful uses of the house, in this case living there, you know, sleeping there every night, having meals there presumably, and compare those to the unlawful uses of the presence, which in this case involves storing some amount of methamphetamine in sort of a side table or a safe near the bed. [00:06:01] Speaker 02: There's no Evidence of manufacturer. There's no laboratory equipment. There's very little evidence of any sort of regular. [00:06:08] Speaker 01: I may be wrong, but I thought there was a scale that had residue on it. Am I mistaken? [00:06:15] Speaker 02: There was a scale. By manufacturer, I mean producing the actual methamphetamine. Understood. So the guideline mentions manufacturing and distributing methamphetamine. There's little to no evidence that. [00:06:27] Speaker 04: So is your position this guideline can only apply if they were actually manufacturing the masks? [00:06:32] Speaker 02: Or distributing. [00:06:33] Speaker 04: Or distributing. [00:06:33] Speaker 02: Okay. [00:06:34] Speaker 04: So, I mean, the scale, the problem is some of your arguments were aimed at manufacturing, but the scale, as Judge Smith pointed to, why wouldn't that support distributing? [00:06:48] Speaker 02: So the question is whether meth distribution was a primary purpose of the residents. [00:06:54] Speaker 02: The mere presence of a scale and some amount of methamphetamine isn't enough to to support the idea that this was essentially a stash house, that is, a place for which – Well, I wonder if you're overstating – I mean, I guess it's hard to know. [00:07:08] Speaker 04: We haven't really addressed this in a published case. The closest case I could find was the Johnson case from the Sixth Circuit. [00:07:16] Speaker 04: And do you think – I mean, if Johnson were the law in the Ninth Circuit, how would you distinguish it? [00:07:24] Speaker 02: So I think Johnson is distinguishable for several reasons. First – Dealing from the home was proven in Johnson. That is, there was evidence of actual drug transactions occurring in the home. We have little evidence of that here. There's some speculation based on one of the text messages maybe 15 months ago, but that text message also references going to a Burger King. In Johnson, there was a separate storage room. [00:07:49] Speaker 04: In your view, does the enhancement require – the drugs to be exchanged at the home? Or would it be enough to store the drugs there, weigh them out, conduct the business there, and then drive to the Burger King and exchange it? [00:08:08] Speaker 02: Well, so the enhancement is concerned with distribution. So the question is, what does distribution mean? If the primary purpose of the residence is distribution, I think that, at least interpretively, that seems to imply that the distribution is happening at the residence. And the enhancement is based on a statute passed by Congress that was particularly oriented towards the unique dangers of semi-vacant buildings or vacant buildings that people go to to purchase drugs and how those lead to crime, those lead to lots of people hanging out and using drugs in that place or nearby. [00:08:45] Speaker 02: There's violence. The concern was abandoned or semi-abandoned buildings that exist for the purposes of either making drugs or selling them and are known as a place where people go to buy drugs, and that's just not present here. The purpose of the enhancement was not to add additional sentencing time to people who live in a residence and are also drug dealers. The problem the enhancement is oriented to is stash houses. [00:09:13] Speaker 04: Well, but Johnson didn't seem to take that same interpretation. I mean, as I read Johnson, it said that, yes, it's true, incidental storage would not be enough, but it equated incidental storage with casual use, meaning if you're just bringing in your own personal use, that's not going to be enough to show distribution. [00:09:35] Speaker 04: But the question is, do we have more than that here? [00:09:38] Speaker 02: Well, so other distinctions between this case and Johnson. In Johnson, it was marijuana, and there was a separate room in the residence just for the purposes of storing marijuana. Here we have these Ziploc bags that contained methamphetamine in the bedroom. That is one sort of like a chest next to the bed. And so that's another distinction. In Johnson, there's this separate sort of facility or room within the apartment, the purpose of which is the storage of significant quantities of marijuana. [00:10:11] Speaker 02: There's also significantly more cash found in Johnson's. $15,000 are present. [00:10:16] Speaker 02: So I think it could be distinguished on the facts there. And sort of the key analysis is looking at the factors that make it a stash house and looking at the factors that make it a residence. And here there's quite a bit on the side of the scale of it being a residence. That is, they live there, they get their bills sent there, there's all the sort of photographs of a lived-in residence that are present in the excerpts of records. [00:10:45] Speaker 02: I'd like to move on to the Second Amendment issue, if I may. [00:10:47] Speaker 01: I was going to say, we can dispose of that rather quickly with Duarte and Vangste, can't we not? [00:10:54] Speaker 02: So Duarte and Vangste concern the possession of firearms. The distinction we're making is that here, Mr. Rivera is being prosecuted for the possession of ammunition without any sort of charge involving firearms. [00:11:09] Speaker 01: All right, so you're saying this is not a 923G1 issue? Right. [00:11:14] Speaker 02: So, yes, so this is distinguishable from Vanxte and Duarte because there's no, you know, Bruin instructs us to, when looking at any particular firearm regulation, to ask if there is a tradition of regulating that particular kind of firearm. And as we argue in our brief, such a tradition is absent in the United States. The Second Amendment clearly covers ammunition. And the only laws from sort of the founding period that the government is able to point to that, regulate ammunition alone or that would apply to ammunition alone are sort of discriminatory and invidious in a way that this court's recent decision in the open carry case suggests should be disregarded. [00:11:56] Speaker 04: So whether you're right or wrong on that, I think we've got a bigger problem. As I understand it, you didn't, this wasn't raised in any pretrial order. [00:12:06] Speaker 02: That's true. So we argue that this is a jurisdictional issue, that is that the facial unconstitutionality of of this kind of prosecution can be raised on appeal for the first time because it goes to the court's jurisdiction over the case, and we have cases showing that. And so that's the basis on which we argue that this court can reach the Second Amendment issue. [00:12:27] Speaker 04: I see. So not a sort of not a facial application, but you're just saying, hey, we've got to invalidate the law. [00:12:35] Speaker 02: So invalidating the prosecution of ammunition alone. Yes, that's right, Your Honor. [00:12:42] Speaker 02: Okay, and then I'd like to move, if I may, to the expert witness issue. [00:12:47] Speaker 02: So in this case, Agent Nearing, who was the main trial witness and the source of the overwhelming majority of the government's evidence, was permitted to testify essentially indistinguishably as both an expert witness and And a fact witness describing what actually happened. [00:13:06] Speaker 04: Well, OK, so I mean, you said indistinguishably. I think that I don't think we should gloss over it because that seems to be where the case seems to rest on, because I have a little bit different take perhaps on that. And I'd like you to address it. The district court did say, like, look, you're going to you're going to testify as a fact witness first and then. He brought him back later as an expert witness. You don't disagree with that? [00:13:28] Speaker 02: That's correct, Your Honor. The district court said that, and the district court instructed the jury that that was happening. The problem is that that did not happen. [00:13:36] Speaker 04: During the fact testimony, there were certain positions. And those were all objected to, correct? [00:13:44] Speaker 02: So Agent Nehring's use of his expert testimony to testify about how much methamphetamine is normally in a Ziploc bag, that was objected to. And the defense counsel also objected sort of at the outset of the trial that the expert testimony needed to be bifurcated from the fact testimony and sought, you know, the judge to enforce that. [00:14:06] Speaker 04: So maybe you can walk through because I identified basically three examples that your argument seems to, you know, three examples of what you say are expert testimony that was shoehorned into the witness testimony category. He started testifying about trash appearing – appeared to have been full of – there appeared to be enough – what was this issue? The trash appeared to have been full of trash before, right? [00:14:37] Speaker 02: Yeah, yeah, yeah, right. So basically the three harms we allege that caused this to affect the verdict are, first – that Agent Nearing was able to testify based on his expertise about how much methamphetamine is normally in a Ziploc bag, which was the key issue in this trial because the defense lawyer's closing argument was this was a personal use amount. [00:14:57] Speaker 03: And you objected to that? [00:14:58] Speaker 02: Yes, that was objected to. [00:14:59] Speaker 03: But then didn't you agree to a dual-role instruction? [00:15:03] Speaker 02: So the defense counsel objected. The judge then gave a dual-role instruction. The defense counsel did not, like, withdraw the objection at that point. The defense counsel agreed... to the instruction being given, but the instruction did not cure the error. The instruction merely said agent Nearing is testifying now as a fact witness. If anything, that compounds the error because the jury is being told these are facts you are hearing. The instruction did not tell the jury to sort of... Dismiss that testimony. Right, not to treat opinion evidence as fact evidence or to not give the agent's testimony more weight based on their expertise. [00:15:39] Speaker 02: In addition, [00:15:40] Speaker 04: Now, with the second one, there was an instruction given to disregard the testimony about the toilet bowl residue dissolving. [00:15:49] Speaker 02: That's right. [00:15:50] Speaker 04: So how does that – I mean, are you still relying on that? [00:15:53] Speaker 02: Sorry, the residue – The residue in the toilet bowl was dissolved. So that was another point at which an objection was made. [00:15:58] Speaker 04: Right, exactly. And then didn't the judge actually tell the jury to disregard that testimony? That's right. So that – So we're not relying on that as error. [00:16:07] Speaker 02: So the other – so – Beyond that, the sort of general, the fact that Agent Nearing was certified as an expert in all of his dozens, hundreds and hundreds of different cases and different methods of investigation were testified about before his initial fact testimony, that unfairly bolstered his fact testimony, which is another source of error. And then third, basically Agent Nearing testified about confidential informants and what confidential informants normally do and the fact that he'd worked with confidential informants like 100 times or so, and just sort of went into some detail during the sort of expert qualifications phase of the fact testimony about how he works with confidential informants, including saying that after he speaks with a confidential informant, he will go and have someone search the trash of the potential investigation target. [00:17:03] Speaker 02: Shortly after that, the engineering testified that in this case, he sent someone to go find the trash of Mr. Rivera and go through it to find evidence. This, you know, strongly suggests to the jury that there is a confidential informant in this case. There's no other potential relevance to discussing how confidential informants normally work or how often they're used. And so this potentially is another source of harm, potentially allows hearsay to come in. That is because no test, no informant testified. The concern, which is also discussed in the cases we cite, is that the jury might rely on that and that sort of implication to conclude that there's a confidential informant who fingered Mr. Rivera. [00:17:42] Speaker 04: Okay. Do you want to reserve for a rebuttal? [00:17:44] Speaker 02: Yes. [00:17:44] Speaker 04: Thank you. [00:17:54] Speaker 00: Good morning, Your Honors. May it please the Court, David Spencer for the United States. [00:17:58] Speaker 00: I'd like to begin with the drug quantity issue and just correct a couple factual assertions that were made in both the reply brief and then again this morning. The first was that my colleague on the other side argued that the jury could have found that the money seized from the house, the $5,972, was facilitating property, not proceeds. The problem with that argument is that the jury returned a special verdict, and the special verdict form specifically found that the seized currency was proceeds. [00:18:29] Speaker 00: The jury found that the $5,972 is property constituting or derived from proceeds obtained directly or indirectly as a result of the offense charged in count one of the indictments. [00:18:41] Speaker 04: So the argument seems to be that directly or indirectly is what makes that problematic to impute. Can you address that? [00:18:48] Speaker 00: Yes, Your Honor. Either way, whether it's direct or indirect, the cash is still methamphetamine proceeds. [00:18:55] Speaker 00: Factually, it makes a lot more sense that the cash is going to be direct proceeds from a methamphetamine transaction. I don't know how cash becomes indirect proceeds unless you're going and changing out bills and getting fives for your 20s at the convenience store or something. But regardless, it's methamphetamine proceeds, and it's $5,972. The district court could take that finding, which satisfies Gonzalez-Sanchez, as well as all the other evidence we can get to, and he can take the cash and convert it to its drug equivalent, as this court has approved as a methodology in Gonzalez-Sanchez. [00:19:29] Speaker 00: That leads to several pounds of methamphetamine. The court then very carefully and scrupulously followed this court's case law that where you're approximating, you have to give every break essentially to the defendant, be as conservative as possible. The court said, I'm probably being excessively conservative, but I'm going to find that there's at least 500 grams, between 500 grams and 1.5 kilograms, which is more than supported by the seized cash that the jury found was proceeds. It's also more than supported by by the approximately $5,000 in separate cash that was photographed on the phone a couple weeks before where the court again made a specific finding that that was proceeds because he referred to how it was packaged and bundled and said that in his mind that was a more than reasonable basis to find that that money as well was drug proceeds. [00:20:19] Speaker 00: One other factual issue I want to mention is counsels argued that the district court didn't consider the jury's verdict at all. That's not correct. [00:20:29] Speaker 00: As we were discussing this issue at sentencing, the district court asked me to go through the facts relating to the cash. And in doing that, I separated the two categories, explained that the cash at the house was not bundled, but the cash in the photograph was. And then I said, but the cash that was seized from the house, the jury found that that was proceeds. And the district court said, well, there is that. And so that that was part of the district court's basis for his finding when he finds the drug. [00:20:55] Speaker 04: Doesn't matter. I mean, would it be error if he didn't rely on that? [00:20:59] Speaker 00: I don't think it would be error if he didn't – no, the short answer is no, Your Honor. [00:21:03] Speaker 04: Because the evidence would still be in there. But, I mean, does it matter that – I don't know. Maybe it does, that the district court specifically found it. It just would seem odd that we would remand it if we found evidence in there to say, hey, make sure you point to it. [00:21:17] Speaker 00: I agree, Your Honor. I think on an abuse of discretion standard, this court – affirms unless the district court's finding was illogical, implausible, or without support in inferences from the facts in the record. The appellant has not met that standard. But here we actually do have the specific finding, which was something that the court looked to in Gonzalez-Sanchez. And we actually have two findings. We have the specific finding by the jury that was referenced at sentencing as to the cash from the house. And then we have the court's finding as the other cash pictured on the cell phone. [00:21:48] Speaker 04: Can you address the premises enhancement? Because we don't really have case law in the Ninth Circuit on this. [00:21:57] Speaker 04: Is that, I mean, is it a problem? I mean, does this come up a lot or the district court's grappling with this? [00:22:04] Speaker 00: It does come up from time to time. It's certainly not true that it's applied in every case in which a defendant has drugs at his home. This case is very different because as the probation officer wrote in the PSR at paragraph 33 of The trial evidence showed that the house was essentially the base of operations for this drug trafficking operation for a period of 15 months or so. There was ample evidence to sustain that. [00:22:29] Speaker 00: It's in the form of drugs at the house, but also, as Judge Smith mentioned, you have the scale that's found there. The scale has methamphetamine residue on it, showing it's been used in the past to weigh methamphetamine. It's an 800-gram scale, which there was expert testimony that that's significant because smaller users or people dealing in smaller than pound quantities often have smaller scales that weigh lesser amounts. And so that's consistent with a pound level dealer. You have packaging materials and a good deal of packaging materials in a separate room. [00:23:01] Speaker 00: And again, the size of the bags, there was expert testimony that that's consistent with pound level dealers. These aren't the little sandwich bags that might be tied off on the corner to package small amounts. You have the text messages, which showed drug transactions happening. [00:23:17] Speaker 00: in the period leading up to the search. [00:23:21] Speaker 00: There's some where he invites people to come to his home, suggesting there's drug dealing at the home. There's others where he says, I'll come out to you, or it implies he's taking it from home. [00:23:29] Speaker 04: So does it matter that, do you think that this enhancement requires them to exchange the drugs at the home? [00:23:36] Speaker 00: I don't think it does, Your Honor, for a couple of reasons. The commentary says that storage for the purpose of distribution satisfies the or can satisfy the maintaining of premises. The text of the guideline, too, I mean, for the purpose of distribution can fairly encompass storage to then distribute the drugs, not just the distribution happening right at the home. [00:23:59] Speaker 00: So I think the commentary is really dispositive and the plain language. [00:24:05] Speaker 04: Well, the commentary is not passed by Congress, right? [00:24:10] Speaker 00: That's true, Your Honor. [00:24:11] Speaker 04: Okay. So is that binding on us? I mean, I think your point would be looking at the textual – looking at the text, it supports this application here. [00:24:24] Speaker 00: That's correct, Your Honor. I think the text is enough, but I think the commentary is a fair gloss on the text that this court could reach just as easily as the sentencing commission. [00:24:35] Speaker 04: What about the second – oh, well, actually, before we – Johnson – Do you have a problem with the analysis in the Sixth Circuit case, or do you think you got it right? [00:24:48] Speaker 00: I think that court did get it right, and that's actually the opinion on which the district judge relied when he applied this enhancement. [00:24:55] Speaker 00: And he rejected the argument, as other courts have, that it's dispositive, that this is the defendant's home. It's not. [00:25:04] Speaker 00: As Johnson found, if it's smaller amounts, if it's personal use amounts, somebody has their drugs at home, Sure, that's not going to be maintaining a premises for drug distribution. But when here, when you have months of activity and it's the base of operations for this drug trafficking operation, that in Johnson and in this case rises to the level of maintaining a premises. I think it's also important. [00:25:29] Speaker 00: My colleague argues that the purpose of the residents has to be drug trafficking. That's not what the guideline says or what the commentary says. It just needs to be a purpose. [00:25:39] Speaker 00: Sure, it was a residence. He was living there, but it was also central to and necessary to his extensive and long-running drug trafficking operation. And for all those reasons, the district court did not abuse its discretion in applying the enhancement following Johnson. [00:25:56] Speaker 04: What about the Second Amendment? I mean, is that not preserved, or do you think we need to address it on the merits? [00:26:06] Speaker 00: I don't, Your Honor. I think it's actually more than not preserved. I think it's waived under Rule 12 in this court's decision in Brewster. [00:26:14] Speaker 00: There was no argument that there's good cause here for not raising it below in a Rule 12 motion. [00:26:20] Speaker 00: My counsel on the other side says, well, it's a jurisdictional because you can adjudicate it on the face of the indictment. That's not correct for a couple reasons, but most importantly, it's not uncommon that you would have a case where Someone is charged under 18 U.S.C. 922G1 with being a felon in possession of ammunition without an allegation that there's a firearm when factually there is a firearm involved. The fact pattern in which that comes up most commonly is in terms of ghost guns or guns that are privately manufactured, unserialized firearms. [00:26:57] Speaker 04: Because you don't want to get into the debate about whether that's a gun or not. [00:27:01] Speaker 00: Well, it's a little different reason you're on. It can be very difficult to show the interstate nexus element. If it's privately manufactured, unserialized, you can't prove that it was manufactured in another state or in another country and therefore must have moved in commerce to California. Those facts are often unknowable, and so therefore it can often be very difficult to prove that the firearm traveled in interstate commerce. But the ammunition can be charged, and there's many examples of indictments that charge just the ammunition. [00:27:27] Speaker 04: We don't have ghost ammunition yet. [00:27:30] Speaker 00: I'm sorry? [00:27:30] Speaker 04: We don't have ghost ammunition yet. [00:27:33] Speaker 00: Not usually, at least. Usually the ammunition is manufactured in another state. [00:27:37] Speaker 00: And even in this case, Your Honors, the ammunition was charged because that's what was found during the residence. But factually, there was evidence that there was a firearm. There were statements from the confidential source that the confidential source had seen Mr. Rivera with a pistol at his residence where he was distributing drugs. We didn't put that evidence on at trial because it wasn't necessary, but had there had been a Rule 12 challenge to the indictment saying that there has to be a firearm under the Second Amendment, and had the district court said that, we might have presented different evidence at trial in order to satisfy that. [00:28:09] Speaker 00: So even in this case, there's a good reason it's waived, because we didn't have an opportunity to litigate the case that way. Even if it's not waived, it's certainly plain error review, and it can't be plain under, as one of your honors mentioned, this court's decisions in Duarte and Vangsheh. [00:28:32] Speaker 04: Do you want to address the recipient and the expert testimony from Nearing? [00:28:41] Speaker 00: Yes, Your Honor. [00:28:42] Speaker 00: The court throughout the trial very carefully followed this court's guidance about how to handle dual role testimony from the Holguin case, from other cases. At the outset of trial, government counsel, I told the court that we were Planning to present agent nearing is both a fact and an expert witness. And in our pretrial briefing, advised the court of Holguin and asked the court to follow those safeguards, which the court did. Specifically, the parties hadn't agreed upon jury instruction. That was this court's model instruction. [00:29:15] Speaker 00: And we agreed that would be read both during trial at the point of testimony and then in the final closing jury instructions. That's what the court did. We also importantly bifurcated or separated the testimony into a fact phase and an expert phase. And it wasn't even just a break in the middle of the same testimony where we turned to the expert phase. We actually separated it by several witnesses who intervened and on different days of trial. [00:29:43] Speaker 00: So the court followed all the safeguards that are necessary under Holguin. [00:29:48] Speaker 00: Counsel now raises, I think, three instances on appeal where Rivera says that the expert testimony or the fact testimony bled into expert testimony a little bit. [00:30:02] Speaker 00: It didn't. Those were proper lay testimony in each instance, and I can go through those. The first two issues had to do with just the background and qualifications of agent nearing. We covered those at the outset of the fact testimony because they were relevant both to the fact testimony and the expert testimony, and we didn't want to have cumulative testimony about qualifications. [00:30:23] Speaker 00: That's the testimony just generally about his background and then also about confidential informants. The confidential informant testimony was relevant foundation to both the expert testimony later, but also to the fact testimony, because as this court has recognized, lay opinion can include, and this is the Perez case, for example, indicia of drug trafficking. So Agent Nearing needed to explain to the jury that he's an experienced drug agent, that he is familiar with the types of evidence he's going to see when he goes into a home, that he's familiar with it for a variety of reasons. [00:30:57] Speaker 00: He's done search warrants, but he's also talked to people in the drug trade confidential informants. [00:31:03] Speaker 00: And so if you ask, for example, a question in the fact stage, did you find any items of evidentiary value in a particular room in the home, the jury needs to have that foundational evidence that this is an experienced drug agent, and so he has a basis to answer that question. [00:31:20] Speaker 00: It did not wrongly imply that there was specific information from a confidential source that could be used against Rivera. It was just foundational testimony. And moreover, the court dutifully instructed the jury not to consider any evidence outside the record, emphasized the importance of not looking at any other sources because the jury had to make its determination based entirely on the evidence presented in the courtroom. And that rules out any of the speculation that they're worried about. Frankly, in any case in which you have government agents testifying that they're conducting surveillance or executing a search warrant, there could always be speculation that maybe the government had other evidence that's not being prevented, but the court rightly instructs the jury not to consider that and just to consider the evidence presented in court. [00:32:09] Speaker 00: And so the specific testimony objected to didn't even bleed into evidence. into expert testimony during the fact phase. The third example actually is one that occurred on cross-examination. Defense counsel made a factual assertion about the bags being empty, and Agent Nearing reasonably responded, well, they weren't exactly empty. There were shards of meth in there, and then said something about his experience. But it was invited by defense counsel's question. [00:32:42] Speaker 00: There's certainly not plain error here because the safeguards were followed. [00:32:48] Speaker 00: That's what this court's decision in Freeman teaches. If the safeguards are followed, there's no basis for finding plain error, and there was no error at all. Even if it were preserved, it's an abuse of discretion standard because the court has substantial deference in making these fact-bound claims. judgments about whether testimony is proper lay opinion or not. [00:33:13] Speaker 00: If the court has any further questions, I'd welcome them. If not, I would ask the court to affirm. [00:33:18] Speaker 04: Thank you very much. [00:33:19] Speaker 00: Thank you, Your Honor. [00:33:20] Speaker 04: We'll give you time for rebuttal. [00:33:29] Speaker 02: Thank you, Your Honor. So I'd like to start with the jury instruction. So at 5ER 862... [00:33:35] Speaker 02: is the instruction the jury was given concerning forfeiture. And it does have the language about commuting or facilitating the commission of a drug violation. That language is not in the verdict form, as my colleague noted. But juries, as this court and the Supreme Court's case law have made clear, are presumed to follow jury instructions. And in a Ninth Circuit case, United States versus Espino, 892 F. 3rd, 1048, there was a constitutional problem with the verdict form. [00:34:04] Speaker 02: And the court relied on the jury instructions to sort of override what the verdict form said. In this case, the jury was told you can find this is forfeitable based on the proceeds being used for sort of future commission of drug violations. And so that, in addition to the directly or indirectly language, which is in the verdict form, is a basis to distinguish the jury's finding from the finding that needs to happen here, which is that it needs to be the direct verdict. proceeds of methamphetamine transactions. If it's the indirect proceeds, if it's perhaps some other drug or some third item that the meth is being traded for and then being sold or some other way in which the money is indirect proceeds, that's not sufficient to support the enhancement. [00:34:46] Speaker 02: In addition, so the judge did not base the amount approximation on the jury's verdict. The judge just acknowledged on the record, as the prosecutor indicated, well, there is that, but the only basis the sentencing judge gave for the drug approximation was the cash. That is, the money found in the apartment and under Gonzalez-Sanchez, that is not sufficient. [00:35:15] Speaker 02: So in addition, moving on to the premises enhancement, so the language of the enhancement says the purpose, not a purpose, the purpose. So the purpose of the residence needs to be manufacturing or distribution of drugs. [00:35:31] Speaker 02: Storage of large amounts of drugs may be relevant to it being for distribution, but we would contend that distribution means distribution at the premises. And this is sort of underscored by the fact that this enhancement is based on a law passed by Congress and borrows language from a law passed by Congress, the purpose of which is to add additional penalties for people who maintain premises at which a lot of drug transactions occur or at which drugs are manufactured. We would point this court to the Seventh Circuit's decision in Kraft, which we discuss in our briefs, in which, you know, there was evidence of multiple drug exchanges occurring at the residence. [00:36:08] Speaker 02: There was evidence of the presence of drugs at the residence, but that was found to be insufficient for. [00:36:14] Speaker 02: Yes. [00:36:16] Speaker 02: Oh, I'm sorry. Oh, that was found insufficient for it to be a purpose or the purpose, I mean, of the residence. That is, it has to be not just, you know, a purpose. It has to be the sort of. the purpose that someone can live at a residence that satisfies this enhancement. But here, you know, the guidelines instruct us to look at all the lawful purposes to which it was put, which include sort of living there, sleeping there, eating there, et cetera. Moving on to the Second Amendment issue. So it is clear from the face of the indictment that this court can decide our argument because our argument is premised on the idea that the government can only prosecute ammunition if it is also prosecuting guns. [00:37:02] Speaker 02: So in a situation where, as in ghost guns by hypothesis, where the government lacks jurisdiction to prosecute the possession of a gun, it cannot prosecute possession of ammunition because there's no tradition of regulating ammunition alone that could potentially be prosecuted in state court or some jurisdiction. [00:37:21] Speaker 04: Counsel, you've gone over. I've given you some leeway, but I think we have your arguments on this. I wouldn't worry. Yeah, thank you. [00:37:30] Speaker 04: Thank you to both counsel for your arguments in the case, and the case is now submitted. And that concludes our arguments for the day. [00:37:37] Speaker 04: All rise.