[00:00:06] Speaker 02:
Thank you and good morning, Your Honours.

[00:00:07] Speaker 02:
Katie Hurlbrink on behalf of Mr. Fensel.

[00:00:11] Speaker 02:
This court must reverse Mr. Fensel's failure to register convictions on two grounds.

[00:00:17] Speaker 02:
First, the good faith exception does not apply, both because of the police department's systemically negligent approach to AB 1950 in misdemeanor cases, and because of these individual officers' reliance on systemically erroneous data sources and unreasonable legal advice.

[00:00:37] Speaker 02:
Second, prosecutors precipitated constitutional error by indicating to the jury that only knowledge, not intent, was required to convict.

[00:00:45] Speaker 02:
I'll begin with good faith.

[00:00:46] Speaker 02:
So as noted, there are two independent reasons for precluding good faith in this case, the first of which involves the police department's systemic negligence, which really set White up to fail.

[00:01:00] Speaker 02:
This police department

[00:01:01] Speaker 02:
did not correct

[00:01:13] Speaker 02:
and no effort to correct court minutes.

[00:01:17] Speaker 02:
And under hearing, if police have been shown to be reckless in maintaining a data system, there was a warrant system, exclusion would certainly be justified.

[00:01:25] Speaker 02:
The department also did not at all train their officers how to apply this very simple law, a law that reduced all misdemeanor sentences to one year unless the statute of conviction provided otherwise.

[00:01:38] Speaker 04:
But they sent a memo saying call the probation office.

[00:01:43] Speaker 02:
They did, Your Honor, but just relying on probation officers' ad hoc legal opinions was not a responsible approach to this pervasive law as the government's own witness testified.

[00:01:58] Speaker 02:
The supervisory probation officer said, if court orders are not written down and updated,

[00:02:04] Speaker 02:
that it's up to the probation officers to calculate the term, which could be incorrect.

[00:02:08] Speaker 02:
And so according to their own witness, doing it that way would be possible, but not advisable.

[00:02:15] Speaker 02:
And we saw the results of that in this case, where this probation officer gave an ad hoc legal opinion that Mr. Finzel's sentence had not been reduced by this law when it clearly had.

[00:02:30] Speaker 02:
that was, and as we know from Song Ja Cha and the Supreme Court's Hein case, that bad legal advice does not support good faith.

[00:02:41] Speaker 02:
because mistakes of law can never support good faith.

[00:02:44] Speaker 02:
And under Hein, a third party's objectively unreasonable legal advice only goes to the officer's subjective understanding of the law, not to the objective reasonableness of that bottom line conclusion as a legal matter.

[00:03:02] Speaker 00:
Does it matter that the police officer seemed to be pretty thorough in checking several different places before he served the warrant?

[00:03:13] Speaker 00:
Does that make any difference?

[00:03:14] Speaker 00:
The fact that he was pretty thorough, it looked like to me.

[00:03:19] Speaker 00:
The cop himself.

[00:03:20] Speaker 02:
Yes, Your Honor.

[00:03:21] Speaker 02:
So the good faith exception does not apply just because an officer is trying their best.

[00:03:28] Speaker 02:
It does not apply just because an officer is acting with subjective goodwill.

[00:03:33] Speaker 02:
It is a very particular test that asks whether a reasonably well-trained officer would rely on the sources that this officer did.

[00:03:42] Speaker 02:
So let's walk through the sources.

[00:03:43] Speaker 02:
First, this officer relied on his police database.

[00:03:48] Speaker 02:
The record reflects that that police database was riddled with systemic errors.

[00:03:53] Speaker 02:
wrong in not just sometimes but most of the time for pre-AB 1950 cases and no one was making any effort to correct that database.

[00:04:04] Speaker 02:
So really, for him, there are two options.

[00:04:08] Speaker 02:
Either he knew that this database was riddled with error and unreliable, in which case it was objectively unreasonable for him to rely on it, or he didn't know, in which case he wasn't reasonably well-trained, because any reasonable police department would inform their officers that their data sources were that pervasively unreliable.

[00:04:30] Speaker 02:
You can do the exact same analysis with the second step that he took which was to call a city attorney But contrary to the implication in the government's brief this was not a legal consultation the Detective Howard and this city attorney employee did not talk about AB 1950

[00:04:48] Speaker 02:
Howard did not ask whether Mr. Fensel was on probation.

[00:04:54] Speaker 02:
There's no evidence that the city attorney even knew anything about AB 1950.

[00:04:57] Speaker 02:
The only thing that happened was he asked for Howard to review the court minutes and how, or sorry, for the city attorney to review the court minutes and the city attorney told him that in the court minutes, Mr. Fensel was ordered to be on probation for a length of time that included the time during the search.

[00:05:14] Speaker 02:
So he really just conveyed the raw information from the court minutes.

[00:05:19] Speaker 02:
But the court minutes have the same problem.

[00:05:21] Speaker 02:
They were created before AB 1950s retroactive reductions.

[00:05:27] Speaker 02:
They were therefore wrong, not just sometimes, but most of the time.

[00:05:31] Speaker 02:
And the record reflects that no one was making any effort to correct them.

[00:05:35] Speaker 02:
So a reasonably well-trained officer would not have relied on them.

[00:05:39] Speaker 02:
And then you get back around to the probation officer's legal advice, which, as already noted, categorically doesn't apply for good faith.

[00:05:48] Speaker 02:
It doesn't qualify for good faith under Song Da Cha and Hein, because mistakes of law can never support good faith.

[00:05:57] Speaker 02:
And Hines says that that includes when an outside source provides legal advice that, as a legal matter, is objectively unreasonable.

[00:06:06] Speaker 02:
So what was White supposed to do?

[00:06:08] Speaker 02:
Yeah.

[00:06:09] Speaker 02:
So I do think that the police department's systemic negligence in this case really left him with very few good options because they didn't correct their data sources so he couldn't use that.

[00:06:20] Speaker 02:
They didn't teach him the law so he couldn't do that and they just had him eliciting these ad hoc legal opinions from probation officers that didn't even supervise misdemeanors.

[00:06:31] Speaker 02:
So I agree that put White in a bind but that doesn't allow the government... But what was he supposed to do that would...

[00:06:39] Speaker 04:
more comport with his obligations.

[00:06:43] Speaker 02:
Yeah so your honor so I just want to make the point that to the extent that the police department's systemic negligence left him without good reasonable avenues to pursue that systemic negligence is itself under

[00:06:58] Speaker 02:
hearing a reason to preclude good faith.

[00:07:01] Speaker 02:
But if the police department had been responsible and had updated her records, he could absolutely benefit from good faith doing the kinds of things that he did in this case.

[00:07:10] Speaker 02:
So if these records were updated and you look at your police database, it should be right.

[00:07:15] Speaker 02:
And if it turns out to be wrong, you benefit from good faith.

[00:07:18] Speaker 02:
If these court minutes were updated and you call somebody and ask about the court minutes... How does he know they're not?

[00:07:24] Speaker 04:
I mean, I just can't really attribute bad faith to him.

[00:07:27] Speaker 02:
Well, Your Honor, the hearing is very clear.

[00:07:32] Speaker 02:
We are not asking whether he acted in subjective bad faith.

[00:07:38] Speaker 02:
It is a more particular analysis where we're asking whether a reasonably well-trained officer acted in objectively reasonable reliance on these sources.

[00:07:46] Speaker 02:
And if he didn't know that these sources he was relying on were riddled with systemic error, wrong most of the time, and that no one was correcting them, then he wasn't well-trained.

[00:07:58] Speaker 02:
Because no reasonable police department would just fail to inform their officers that the data sources they were relying on were utterly unreliable.

[00:08:10] Speaker 02:
And any other conclusion would

[00:08:16] Speaker 02:
basically encourage police departments or excuse police departments when they do not take reasonable steps to equip their officers to make the right call in a situation as critical as this one, which is a warrantless search of a US citizen's house.

[00:08:36] Speaker 03:
Council, how long, what was the span of time?

[00:08:40] Speaker 03:
I just don't know.

[00:08:41] Speaker 03:
I'm trying to figure out what you say reasonable and I understand that, but what is reasonable in terms of how fast should these changes have been made to the system showing the AB 1950 and the fact that misdemeanor people in certain crimes now only had a one-year probationary term?

[00:08:59] Speaker 02:
Yeah.

[00:08:59] Speaker 02:
So I really want to be clear about this, Your Honor, because I think the government's brief mischaracterizes it.

[00:09:05] Speaker 02:
In misdemeanor cases,

[00:09:06] Speaker 02:
No one was making any effort to update the records at all.

[00:09:11] Speaker 02:
It was not a matter of timeline.

[00:09:13] Speaker 02:
It wasn't like, you know, they were getting to it, but they hadn't gotten to it.

[00:09:17] Speaker 02:
No one was making any effort to correct these systems.

[00:09:20] Speaker 02:
And we know that because the probation officer testified that he was only, his office was only making these updates in felony cases.

[00:09:29] Speaker 02:
Misdemeanors were handled separately.

[00:09:31] Speaker 02:
He wasn't involved.

[00:09:32] Speaker 02:
And he didn't have knowledge of any effort to make these updates in misdemeanor cases.

[00:09:37] Speaker 02:
But that said, this search did take place six months after the law's effective date.

[00:09:42] Speaker 02:
And when it came to felonies, those records were being updated, I believe the testimony was beginning six months before the effective date.

[00:09:51] Speaker 02:
So they knew ahead of time this was coming down the pipe, and they were already making corrections before the effective date came up.

[00:10:01] Speaker 02:
So- Whose testimony is that?

[00:10:04] Speaker 02:
It is the supervisory probation officer, so I would point your honors to ER 194 to 195, ER 200, ER 202 to 204.

[00:10:17] Speaker 02:
Really throughout the testimony, this probation officer was very clear his office did not handle misdemeanors and did not handle any misdemeanor corrections.

[00:10:32] Speaker 02:
So I'm happy to answer additional questions out of faith.

[00:10:35] Speaker 02:
Otherwise, I can briefly touch on my second issue.

[00:10:38] Speaker 02:
So the prosecutor also precipitated constitutional error by telling the jury that only knowledge, not intent, was required to convict, even though Mr. Fensel's entire defense was based on intent.

[00:10:49] Speaker 02:
But the legal theory there was not true, either for short-barreled rifles or for silencers.

[00:10:57] Speaker 02:
We know that it's not true for short-billed rifles because the definition uses the word intended and this court has already interpreted the same word in the same statute to target subjective intent.

[00:11:11] Speaker 02:
Also, interpreting it objectively would create a surplusage problem in as much as there's no situation in which you could objectively design and

[00:11:21] Speaker 02:
make something to shoot from the shoulder but not objectively intend for it.

[00:11:25] Speaker 04:
Who's intent are we looking at?

[00:11:27] Speaker 04:
Because the way it's worded is intended to be, right?

[00:11:34] Speaker 04:
So when like when it's manufactured.

[00:11:37] Speaker 02:
So we're looking at the user's intent, and I think we can see that from three.

[00:11:44] Speaker 02:
Why are we looking at user's intent?

[00:11:46] Speaker 02:
There are three reasons.

[00:11:47] Speaker 02:
So first, when this court interpreted the word intended in Fredman, this court, in the destructive device definition, this court interpreted it to target subjective user intent.

[00:11:59] Speaker 02:
So the canon that the same word used in the same statute usually means the same thing would militate in favor of that reading.

[00:12:07] Speaker 02:
Second, saying that it was manufacturer intent would create a surplus problem, because it's very hard to imagine a situation where a manufacturer objectively designed and objectively made a gun to be shot from the shoulder, but didn't subjectively intend for it to be done.

[00:12:24] Speaker 02:
in that way.

[00:12:25] Speaker 02:
And finally, it would actually limit defendant's liability in a way that makes not very much sense, because, for example, if a manufacturer designed an item to be a pistol and made it into a pistol and intended for it to be a pistol, then it would be a pistol no matter what the end user did with it.

[00:12:45] Speaker 02:
So even if the end user sticks the shoulder stock on there and starts shooting, it would not be intended to be a rifle because the only thing we care about is manufacturer intent, according to the government.

[00:12:58] Speaker 02:
And that doesn't make a lot of sense.

[00:13:00] Speaker 02:
Unless your honors have additional questions, I'll reserve the remainder.

[00:13:03] Speaker 03:
I do, I do.

[00:13:04] Speaker 03:
I want to understand, when you're talking about intent for the short barrel rifle in particular,

[00:13:14] Speaker 03:
I guess I'm confused.

[00:13:14] Speaker 03:
It still had the stock, correct?

[00:13:16] Speaker 02:
Correct, Your Honor.

[00:13:17] Speaker 02:
So that's why intent was so central to Mr. Fensel's defense is his testimony was I put the stock on the gun just to stabilize it in the safe so that it stood up, you know, side by side with the other firearms.

[00:13:34] Speaker 02:
So when I actually shot the firearm, I would take the stock off and use it as a pistol.

[00:13:38] Speaker 02:
So even though it was configured as a rifle while in the safe, intent made all the difference.

[00:13:46] Speaker 02:
And we just have to take his word for it?

[00:13:47] Speaker 03:
Or was there evidence that demonstrated that it couldn't be shot with the stock still on it?

[00:13:52] Speaker 02:
There was evidence that all of these charged firearms were still in process, that all of them had issues that would make them difficult or impossible to safely shoot, period.

[00:14:06] Speaker 02:
which is part of his defense, but of course it would not be a matter of just taking his word for it.

[00:14:13] Speaker 02:
The government was free to argue to the jury that he did not have the intent that he claimed to have.

[00:14:20] Speaker 02:
The thing is, it was just the jury's job to adjudicate between those two positions, and by indicating to the jury that his intent didn't matter, the government deprived him of the ability to put on that defense.

[00:14:34] Speaker 02:
So unless Your Honors have any further questions, I'll reserve my time.

[00:14:50] Speaker 01:
Good morning.

[00:14:51] Speaker 01:
May it please the Court, Zach Howe for the United States.

[00:14:54] Speaker 01:
Starting with the search, Detective White reasonably relied on three different sources to confirm Fencil's probation status.

[00:15:01] Speaker 01:
One was the police database, the second was the city attorney who checked court minutes, and the third was the probation officer.

[00:15:08] Speaker 01:
The district court concluded that the officer acted in a reasonable manner in doing so and I think the court should conclude the same.

[00:15:16] Speaker 01:
In fact, suppression would be particularly inappropriate here because as the Supreme Court and this court have noted, the suppression rule is not meant to deter external sources like the court or the city attorney's office or probation, all of which the officer here relied on.

[00:15:35] Speaker 03:
So do we ignore that probation

[00:15:38] Speaker 03:
said were not even fixing the misdemeanor ones yet?

[00:15:42] Speaker 01:
Probation did not say that.

[00:15:43] Speaker 01:
What they said is that they were not directly responsible for misdemeanor probation and that they weren't aware of the particulars of what the city attorney's office or others responsible for misdemeanor probation were doing.

[00:15:57] Speaker 01:
But what probation did say is, and this is a page 190 and 191 of the record, is that they engaged all of the stakeholders who are responsible for misdemeanor probation.

[00:16:09] Speaker 01:
So about six months in advance, and this is a page 201, says about six months in advance of the law going into effect.

[00:16:16] Speaker 01:
They engaged all these stakeholders the court the city attorney's office and the public defender's office So while they didn't know the particulars of what those entities did with regard to misdemeanors It was imminently reasonable to conclude that when all of those stakeholders are in the mix

[00:16:31] Speaker 01:
that they are going to be updating court records.

[00:16:35] Speaker 01:
And that's why the district court made a factual finding that the error here was isolated and unique and unlikely to repeat itself.

[00:16:45] Speaker 01:
That's at page 25 and 26.

[00:16:46] Speaker 03:
So, Counsel, when Officer White spoke to the probation officer, at that time, did the probation officer believe that he was providing accurate information that had already been updated pursuant to AB 1950?

[00:17:01] Speaker 01:
I don't know if he says particularly because they didn't talk to the specific probation or officer that detective white talk to they talk to the supervisory or rather in court the testimony was from the supervisory.

[00:17:15] Speaker 01:
probation officer who was responsible for sort of orchestrating the response to AB 1950.

[00:17:21] Speaker 01:
But what he did say at page 195 is that they encouraged officers to call probation even for misdemeanor probation.

[00:17:32] Speaker 01:
And that was the direction that was given to the officers as well by their police chief.

[00:17:37] Speaker 01:
So they followed those orders from probation and from their own supervisors to call probation.

[00:17:44] Speaker 01:
And there was no reason, I think to rule for my friend on the other side, you would have to say that the only reasonable thing for Detective White to conclude is that the city attorney's office, probation, the courts, the public defender's office would all systematically fall down on the job by not

[00:18:04] Speaker 01:
routinely updating court records.

[00:18:06] Speaker 00:
But Herring says in Herring it says the exclusionary rule serves to deter deliberate reckless or grossly negligent conduct or in some circumstances recurring or systemic negligence.

[00:18:18] Speaker 00:
Why is this not the latter?

[00:18:21] Speaker 01:
The reason is because you don't have well I'll put a caveat on this in a minute but in the district court you didn't have a single other example given of any other time when this error had ever occurred.

[00:18:33] Speaker 01:
And the court notes that at page 25 of the record, and I'll just quote, it says, defendant has failed to cite even one other instance in which El Cajon police or any other police department in California conducted a search pursuant to a misdemeanor's fourth amendment waiver that had expired.

[00:18:49] Speaker 01:
And in Arizona v. Evans from the Supreme Court,

[00:18:52] Speaker 01:
They said even if you can show three or four examples over the course of a couple of years, that alone wouldn't be enough to show systemic negligence.

[00:18:59] Speaker 01:
And that was reaffirmed in the Herring case that you cite.

[00:19:02] Speaker 01:
So here the fact that you have not even a single other example would show that there's not systemic negligence.

[00:19:07] Speaker 01:
Now the reason I said I'd put a caveat on that is because for the first time in their reply brief at page six in this court,

[00:19:13] Speaker 01:
They do cite three other examples of where this has happened over the course of, I guess, five years.

[00:19:19] Speaker 01:
But again, Arizona versus Evans says three or four examples is not enough.

[00:19:23] Speaker 01:
And obviously, the reply brief in this court would be a little too late to raise new factual allegations anyway.

[00:19:29] Speaker 01:
Now what I can say is that if you want to look at the

[00:19:32] Speaker 01:
legal reasoning of those three California Court of Appeals court cases for their persuasive value, I would encourage you to do so because all three of them found that the good faith exception applied on facts much like these.

[00:19:46] Speaker 01:
The only difference was that in those cases the officers checked fewer sources.

[00:19:50] Speaker 01:
In one case it was one source that they checked and the other two it was two sources that they checked.

[00:19:56] Speaker 01:
Here we have three.

[00:19:57] Speaker 01:
So I think for all those reasons you can conclude that Detective White did not act deliberately, recklessly, or grossly negligently, and that there was no systemic error that would cause the court to decline to apply good faith either.

[00:20:13] Speaker 01:
So I'm happy to move to the closing argument.

[00:20:15] Speaker 01:
Now I'll say at the outset that I think this is an exceedingly easy case once you get to harmless error, but I feel quite strongly about the merits argument as well, so let me start there.

[00:20:23] Speaker 01:
Any common sense use of the word intended to when it's being used as an adjective to describe an object or a place, as opposed to an adverb to describe a person's actions,

[00:20:38] Speaker 01:
means that that is an objective inquiry into what that object is meant to do.

[00:20:43] Speaker 01:
So just to give an example, if I were to say that a court is a place intended for arguments, the fact that I might walk in with my yoga mat intending to do yoga would not transform this room into a yoga studio.

[00:20:55] Speaker 01:
It might mean that I'm misusing the yoga studio and that I have the subjective intent to misuse

[00:21:02] Speaker 01:
the courtroom rather, but it wouldn't mean that the courtroom fails to be a courtroom.

[00:21:07] Speaker 01:
And you can come up with as many examples as you want where you use intended to to describe an object.

[00:21:13] Speaker 01:
We give some about a basketball in our brief, but pick your object.

[00:21:16] Speaker 01:
If you describe it with the adjective intended to, the sort of everyday interpretation would be that that's what the object was meant to be used for objectively, not what it was subjectively meant to be used for by the user.

[00:21:30] Speaker 01:
My friend on the other side is essentially advancing a sort of Schrodinger's cat theory of statutory interpretation where a weapon both is and is not a rifle and you can never know for sure until you break into the mind of the user and figure out how they intended to use it.

[00:21:45] Speaker 01:
And frankly, it's even worse than that because the weapon can be a rifle one minute when they intend to fire it from the shoulder, but then if they decide, you know what, I really didn't like that, I'm not going to do that again, then suddenly the weapon transforms into a non-rifle.

[00:21:59] Speaker 01:
And then if they hand it to a friend who does intend to fire it from the shoulder and they give it away, well then suddenly it becomes a rifle again.

[00:22:06] Speaker 01:
And so it can change from person to person, user to user, time to time.

[00:22:10] Speaker 01:
That doesn't make a lot of sense.

[00:22:13] Speaker 01:
My friend on the other side, I believe, sort of concedes that the common sense meaning doesn't support them.

[00:22:19] Speaker 01:
In fact, if you look at page 16 of their reply brief, they say that precedent, quote, trumps the government's appeal to common sense.

[00:22:26] Speaker 01:
But I think the text of the statute, for the reasons just discussed, codifies that common sense interpretation.

[00:22:32] Speaker 01:
I don't think you have to check your common sense at the door to interpret this statute.

[00:22:36] Speaker 00:
Does it make a difference that he made the weapon from a kit?

[00:22:40] Speaker 00:
So he didn't buy it off the shelf that way.

[00:22:43] Speaker 00:
It came in and he had to build it himself.

[00:22:46] Speaker 01:
I think it's possible that at some point you simply say that the user is the manufacturer.

[00:22:53] Speaker 01:
I don't know if we've crossed that threshold here given that essentially what happened is, you know, you had the barrel and you had the receiver and he drilled some holes and put it together.

[00:23:00] Speaker 01:
I don't know if that's enough to call him the designer or the manufacturer or something like that, but I certainly agree that at some point you probably will cross that threshold.

[00:23:10] Speaker 01:
And this will ultimately, I'll get to my harmless error argument in a moment,

[00:23:14] Speaker 01:
do think that even if you were to say that he were the manufacturer in this case, the fact that the government spent all but one sentence of their closing arguing about his intent would, I think, cover that scenario.

[00:23:28] Speaker 01:
So I'll get there in a moment, but I just want to put just a bit of meat on the bones of some of the other statutory construction factors, because it's not just that you can rule for us based on common sense.

[00:23:38] Speaker 01:
You can look to the technical canons of construction and reach the very same conclusion.

[00:23:42] Speaker 01:
I'll just point you to two.

[00:23:44] Speaker 01:
One is the associated words canon.

[00:23:46] Speaker 01:
And that means that when you have these other words right by intended to, so it's designed or redesigned, made or remade and intended to, and the parties agree that those other four words are all objective words, then it would be pretty strange to assume that Congress, when it reached the intended to part of the statute, meant to silently insert a mens rea requirement that was a sort of trap for the unwary prosecutor to have to prove.

[00:24:16] Speaker 01:
It would be different perhaps if the words were desired and intended to or something that you could perhaps interpret as being subjective user-based words that were surrounding that intended to, but that's not what you have here.

[00:24:32] Speaker 01:
You have objective words right next to intended to.

[00:24:35] Speaker 01:
I think the canon of consistent usage would support concluding that it's objective.

[00:24:39] Speaker 01:
Then the final one I'll point you to is the consistent usage canon.

[00:24:43] Speaker 01:
And in particular, if you look just a few subsections after the rifle definition, which is at 5845C, if you look at 5845F, there you have Congress saying, and this is the destructive device provision, it said a destructive device would not include, quote, a rifle which the owner intends to use

[00:25:05] Speaker 01:
for a sporting purpose.

[00:25:07] Speaker 01:
So when Congress wanted to focus on owner intent, on the owner's intent to use a weapon in a certain way, it said that explicitly, just two subsections later.

[00:25:17] Speaker 01:
So if you want to give the words independent meaning, then you should conclude that when Congress instead says an object is intended to be used in a certain way, it's not talking about subjective intent.

[00:25:29] Speaker 01:
Now my friend on the other side cites the Fredman case, which was interpreting a definition of parts that can be defined as a destructive device.

[00:25:38] Speaker 01:
The two differences there that distinguish that case from this one is, number one, that case is framing the intended to as a contrast.

[00:25:49] Speaker 01:
So it says that parts can be a destructive device if they are, quote, either designed or intended

[00:25:56] Speaker 01:
for a purpose, suggesting a contrast, whereas here we're using the conjunctive to suggest a comparison.

[00:26:02] Speaker 01:
But the more common sense reason to distinguish those cases is because parts can in of themselves be innocent.

[00:26:11] Speaker 01:
So you can have a gas can, you can have a firework, something like that.

[00:26:14] Speaker 01:
That's not necessarily a destructive device.

[00:26:17] Speaker 01:
It can be if the user intends to use it for a nefarious purpose.

[00:26:22] Speaker 01:
Whereas a firearm is complete.

[00:26:26] Speaker 01:
We're talking about a completed rifle that doesn't have, I mean, it can have innocent purposes if you register it and go through the right process, but once you're within the realms of the statute, it doesn't have an innocent purpose.

[00:26:38] Speaker 01:
So you don't need the subjective intent to separate out innocent conduct.

[00:26:43] Speaker 01:
And I think that's why Friedman doesn't ultimately answer the question this Court is addressing.

[00:26:48] Speaker 01:
Now, I said this case is a very easy one on harmless error.

[00:26:51] Speaker 01:
The reason is because the government spent all but one sentence of its closing argument arguing that

[00:26:58] Speaker 01:
Fensel did, in fact, intend to fire this thing from the shoulder.

[00:27:02] Speaker 01:
It said that, and this is at page 828, it said that a rifle wouldn't become a paperweight if Fensel intended to use it as one.

[00:27:11] Speaker 01:
That's the one time it really mentions the sort of objective purpose of the rifle, but immediately after it says, you don't even have to go to that because you can go back again to what we talked about earlier.

[00:27:23] Speaker 01:
And then the government emphasized that Fensel thinks he's in a loophole.

[00:27:27] Speaker 01:
He thinks he can just call this a pistol.

[00:27:29] Speaker 01:
He wants the jury to believe he doesn't know what he's doing.

[00:27:31] Speaker 01:
And then it says, but the evidence shows that he's lying.

[00:27:35] Speaker 01:
So the thrust of the government's argument throughout was that Fensel was lying when he said he didn't intend to fire these things from the shoulder.

[00:27:44] Speaker 01:
And his excuse for why he put the shoulder stocks on and made this what would seemingly be a rifle was transparently flimsy.

[00:27:53] Speaker 01:
He said he put the stock on the rifle simply so that he could stand the gun up in his gun safe.

[00:28:01] Speaker 01:
But of course, then the prosecutor in trial, and Fensel was sitting right about there, took the stock off, went and leaned it up against the courtroom right in front of Fensel and said, you couldn't just do that?

[00:28:14] Speaker 01:
And he said, well, I guess I could have.

[00:28:16] Speaker 01:
And then he ultimately said, well, I wouldn't stand it on the barrel.

[00:28:19] Speaker 01:
So the prosecutor flipped it upside down, and again, it stood up.

[00:28:21] Speaker 01:
So his whole excuse for putting the shoulder stock on the gun was transparently illusory, because he didn't need the shoulder stock to stand the gun up in his gun safe.

[00:28:32] Speaker 01:
And he also agreed that he hadn't put the shoulder stock on other items that he had leaned in his safe or his cabinet, like swords or barrels or things like that.

[00:28:41] Speaker 01:
He only happened to choose the weapon that could be fired from the shoulder if he put the shoulder stock on and he put that shoulder stock on.

[00:28:50] Speaker 01:
And then, of course, you have the fact that the testimony showed that these guns had the length of pull for shoulder fire, they had the shoulder stocks, they had the buffer tubes to accept the shoulder stocks as opposed to the buffer tubes not made to accept the shoulder stocks.

[00:29:08] Speaker 01:
One of them had rifle sights, which is the two sights versus the one.

[00:29:12] Speaker 01:
So it didn't make a lot of sense to say he didn't intend to fire these from the shoulder when they had all of the features that would allow them to fire from the shoulder.

[00:29:20] Speaker 04:
You're talking about the charged weapons?

[00:29:23] Speaker 01:
That's correct.

[00:29:24] Speaker 04:
Only the charged weapons?

[00:29:26] Speaker 01:
Only the charged weapons.

[00:29:27] Speaker 01:
The three charged firearms, and I should just say a few words about the silencers since I haven't mentioned them much, but the government spent its entire closing arguing that Fensel intended to use these as silencers.

[00:29:40] Speaker 01:
And again, the evidence overwhelmingly showed that.

[00:29:44] Speaker 01:
Fensel said that these might be solvent traps for cleaning guns, and then at trial for the first time he also floated the idea that they might be car parts.

[00:29:52] Speaker 01:
The big problem with that theory is that they had holes all the way through, so they wouldn't trap anything.

[00:29:57] Speaker 01:
So it didn't make a lot of sense to call these solvent traps.

[00:30:00] Speaker 01:
And then there was the fact that, you know, he just said, well, I didn't know these had holes in them.

[00:30:06] Speaker 01:
But he said these were his items that no one else used his drill press.

[00:30:11] Speaker 01:
No one else knew where things were in his house.

[00:30:14] Speaker 01:
No one else used his things.

[00:30:15] Speaker 01:
So it didn't make sense to conclude that anyone else drilled these holes other than him.

[00:30:20] Speaker 01:
So I think on both the merits and if you were to conclude that you had to show subjective intent, then on harmlessness, this court should affirm

[00:30:29] Speaker 01:
I see I've either got about 30 seconds left, or I've got about 30 seconds, so I'll yield whatever time I have.

[00:30:35] Speaker 01:
Thank you, Your Honor.

[00:30:50] Speaker 02:
Your Honours, I would like to start with the good faith issue again.

[00:30:55] Speaker 02:
So I just want to be very clear.

[00:30:56] Speaker 02:
The district court did not find that these records were being updated.

[00:31:02] Speaker 02:
It was the government's burden to prove good faith and there was neither any finding nor any evidence that that was the case.

[00:31:10] Speaker 02:
Instead, the judge concluded that these errors were isolated because the judge believed that you had to show multiple examples of police officers making the same error in order to meet the systemic exceptions to herring.

[00:31:24] Speaker 02:
That is not true.

[00:31:26] Speaker 02:
So, for example, in Song Ja Cha, a single constitutional violation was deemed to be an example of systemic error because it was the result of a police force

[00:31:37] Speaker 02:
systemically not training their officers to do proper searches, and that systemic flaw ended up trickling out throughout the entire investigation, everyone involved in it and resulting in the constitutional violation.

[00:31:51] Speaker 02:
That's what happened here.

[00:31:52] Speaker 02:
Likewise, when Herring and Evans talk about systemic error, they're talking about systemic errors in databases, not

[00:32:00] Speaker 02:
many officers making the same mistake over and over again, and these databases were systemically flawed and uncorrected.

[00:32:07] Speaker 02:
And I see I'm out of time, so unless your honors have other questions.

[00:32:12] Speaker 04:
Thank you.

[00:32:12] Speaker 04:
Okay.

[00:32:13] Speaker 04:
Well, thank you, counsel.

[00:32:15] Speaker 04:
US versus Fensel will be submitted, and we'll take up US versus Doyle.