[00:00:17] Speaker 00:
We may proceed and cancel.

[00:00:19] Speaker 01:
Good morning, Your Honors.

[00:00:20] Speaker 01:
Emerson Wheat, appearing on behalf of Appellant Dwight Roan.

[00:00:24] Speaker 01:
I would like to reserve two minutes for rebuttal.

[00:00:27] Speaker 01:
Watch your clock.

[00:00:29] Speaker 01:
I think the issue that I would like to sort of dispose of, in some measure, is the double jeopardy argument.

[00:00:38] Speaker 01:
None of the parties, myself included, raised the Black Burger issue.

[00:00:43] Speaker 01:
I acknowledge that the law says it needs to be

[00:00:47] Speaker 01:
the same elements in order for that double jeopardy claim to stand.

[00:00:52] Speaker 01:
I certainly would argue that there's a waiver issue there, but I acknowledge the court does have an ability to consider pure questions of law at its own discretion.

[00:01:04] Speaker 01:
And frankly, I think Mr. Rohn would lose on this claim if the Blockburger issue had been presented before the district court.

[00:01:13] Speaker 01:
it did not get presented and certainly the judge did not rule on that but i think this sort of dovetails into part of the discovery challenge here originally i asked for evidence from the

[00:01:31] Speaker 01:
from the government, indicating what types of communications they had with their state counterparts to bring Mr. Rohn over from state to federal court on this felon in possession case.

[00:01:45] Speaker 01:
And I was brought to that particular issue because of the statement in order.

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It stands out.

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It's stark.

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And it's page 294 of the volume two

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of the excerpts, but the state judge's clerk wrote, defendant is ordered to be present at the next hearing.

[00:02:08] Speaker 01:
Defense counsel is to inform the court that the defendant will be taken into federal court after today's hearing.

[00:02:14] Speaker 01:
The court requests any assistance from the federal agents to have the defendant appear at the next hearing.

[00:02:22] Speaker 01:
And that is strange.

[00:02:24] Speaker 01:
The federal agents went to the 11th floor of the Superior Court in San Diego, the central branch,

[00:02:30] Speaker 01:
And they waited for Mr. Roan to walk towards his sentencing hearing on a felon in possession case, although he did plead to the health and safety possession of narcotics while armed charge.

[00:02:45] Speaker 01:
But he was originally charged as a felon in possession.

[00:02:49] Speaker 01:
And I wanted the communications between the federal law enforcement and prosecutors and their state counterparts, because I did want to raise a collusion claim.

[00:03:00] Speaker 01:
And when that discovery request was denied by the district court, I didn't have any way to present that.

[00:03:08] Speaker 01:
And so instead, I had to take this bird's eye view of the Bartkiss challenge by identifying 30 some odd similar cases of felon in possession starting in state court and then being brought over to federal court and pulling the minute entries.

[00:03:27] Speaker 01:
And it's not uncommon.

[00:03:30] Speaker 01:
But the uncommon element was that Mr. Rohn was being brought over on his way to the sentencing hearing.

[00:03:37] Speaker 01:
And Jeopardy had attached.

[00:03:40] Speaker 01:
So certainly I was fixated on the Jeopardy issue.

[00:03:43] Speaker 01:
But it's a tougher challenge to make, because I'm arguing about what the government does generally versus what happened here.

[00:03:51] Speaker 01:
And so I couldn't get into what effectively looks to me like there's some sort of collusive efforts to communicate

[00:04:01] Speaker 01:
from the state officers or prosecutors to the federal prosecutors or officers to please intercept Mr. Roan on his way into sentencing for some reason.

[00:04:12] Speaker 01:
Because certainly Gamble says that they could have prosecuted him subsequently.

[00:04:17] Speaker 01:
The federal government could have after sentencing.

[00:04:20] Speaker 01:
So something seemed unusual here.

[00:04:21] Speaker 01:
And I'm not privy to what that was.

[00:04:23] Speaker 01:
And I don't care to speculate.

[00:04:24] Speaker 01:
But I do think that would have made for a better challenge as it relates to collusion.

[00:04:31] Speaker 01:
And the government's citation to United States versus zone was interesting because this was another attempt at making a Bartkiss challenge.

[00:04:42] Speaker 01:
But there was also a similar discovery request made.

[00:04:46] Speaker 01:
And defense counsel in that case, they were citing articles about what might have been Project Safe Neighborhoods or precursors to that, I think, in the early 2000s.

[00:05:01] Speaker 01:
But they clearly weren't very effective at getting the information they needed through discovery.

[00:05:06] Speaker 01:
And what the Ninth Circuit said, the district court did not abuse its discretion in denying Zones discovery requests because he did not make a preliminary showing of intersovereign collusion as opposed to mere intersovereign cooperation.

[00:05:24] Speaker 01:
And that is the point.

[00:05:26] Speaker 01:
I wasn't able to make that claim.

[00:05:27] Speaker 01:
And I think this is a really key part

[00:05:30] Speaker 01:
of Mr. Rohn's case, I identified very clearly for the court what I would like to challenge.

[00:05:37] Speaker 01:
I made very clear requests for the discovery.

[00:05:39] Speaker 01:
I saw it.

[00:05:40] Speaker 01:
And ultimately, I wasn't able to get there.

[00:05:43] Speaker 01:
And so I did cite... Talking about the state court or the federal court?

[00:05:49] Speaker 01:
The federal court denied the discovery request to me.

[00:05:52] Speaker 00:
Okay.

[00:05:53] Speaker 01:
And so I made...

[00:05:56] Speaker 01:
You know, that claim, but I think the denial of the discovery certainly impeded me from making other claims.

[00:06:04] Speaker 01:
Unless the court has questions, I'd like to turn to the destruction of evidence argument.

[00:06:10] Speaker 01:
I think this one is problematic for the government.

[00:06:12] Speaker 01:
And we're talking primarily about the Camaro because it was the piece of evidence that I would want to see as a defense lawyer.

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is the Camaro.

[00:06:26] Speaker 01:
I want to see the tail light doesn't work.

[00:06:29] Speaker 01:
And I appreciate that the officer came in and testified to the same thing he wrote in his reports, that the third tail light was inoperable.

[00:06:36] Speaker 01:
But that's expected.

[00:06:38] Speaker 01:
And the role of defense counsel is to be able to test the evidence.

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And I know we have these cases somewhat regularly in the Southern District where things are disposed of at the border because of the volume of cases and perhaps the lack of space.

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In this case, the car was not preserved.

[00:06:59] Speaker 01:
And whether we call that dispose or failure to preserve, it wasn't.

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And that falls on the government.

[00:07:06] Speaker 01:
The case was brought over five months after the arrest to the federal court.

[00:07:12] Speaker 01:
And apparently, nobody asked.

[00:07:16] Speaker 01:
The federal prosecutor never asked, do we have this evidence?

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Is there anything else?

[00:07:21] Speaker 01:
Are there any issues with our case?

[00:07:25] Speaker 01:
When I asked the court to preserve the evidence and it did preserve it, I certainly would have liked to have seen that tail light.

[00:07:34] Speaker 00:
The question I have about that is that it's possible, isn't it, that the tail light wasn't working at the time of his arrest, but later someone fixed it.

[00:07:52] Speaker 00:
So I don't understand what

[00:07:56] Speaker 00:
evidentiary value unless you could seize it or test it, you know, very close to the time that the police impounded it.

[00:08:09] Speaker 01:
Correct.

[00:08:10] Speaker 01:
And I think the concern was the government, the state government did not proceed with preserving the evidence because they negotiated a plea agreement with Mr. Rung.

[00:08:23] Speaker 01:
And on the other hand,

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When the federal government picked it up, I never had that opportunity.

[00:08:28] Speaker 01:
I didn't negotiate a plea agreement.

[00:08:30] Speaker 01:
And so my role started anew when that case was charged in federal court.

[00:08:35] Speaker 01:
I couldn't see it.

[00:08:35] Speaker 01:
And I don't think anybody was going to fix it in impound while it was still in police impound.

[00:08:40] Speaker 01:
And whether or not they have an obligation to the government to return the car to the lawful owner,

[00:08:45] Speaker 01:
There are ways that they could have tried to capture that evidence.

[00:08:48] Speaker 01:
And these are apparently traffic cops doing traffic enforcement in state court, and they're very familiar with Fourth Amendment challenges.

[00:08:58] Speaker 01:
This was the basis for their stop.

[00:09:00] Speaker 01:
It was an inoperable third tail light.

[00:09:03] Speaker 01:
And I think that their failure to preserve that is problematic for the government.

[00:09:07] Speaker 01:
I think it would warrant reversal.

[00:09:09] Speaker 01:
And I would like to reserve the remaining time, please.

[00:09:12] Speaker 00:
All right.

[00:09:13] Speaker 00:
You may do so.

[00:09:27] Speaker 02:
Good morning, Your Honors.

[00:09:28] Speaker 02:
May it please the Court, Mark Rahe, for the United States to pick up on the Trombetta claim that the defense was just referring to.

[00:09:36] Speaker 02:
The government's position is that there was no Trombetta violation.

[00:09:40] Speaker 02:
And as this Court is aware, there is a multi-factor test, and the defense has to satisfy all of them.

[00:09:46] Speaker 02:
In this case, when this car was seized, you have to keep a few things in mind.

[00:09:52] Speaker 02:
First of all, the car itself was not an instrumentality

[00:09:56] Speaker 02:
of any crime.

[00:09:57] Speaker 02:
The car belonged to the passenger, a man named Avery Clements.

[00:10:02] Speaker 02:
He was arrested but released the same day.

[00:10:06] Speaker 02:
And so, you know, on one hand, as the district court pointed out below, he's not aware of any legal principle that would require, you know, a police department to keep property from its lawful owner.

[00:10:20] Speaker 02:
Now, the other thing is, based on the unique facts here, as set forth in the briefs,

[00:10:26] Speaker 02:
The defendant knew Mr. Clemens.

[00:10:29] Speaker 02:
He was a friend of his.

[00:10:30] Speaker 02:
In fact, the day of the arrest, they were driving around running errands.

[00:10:35] Speaker 02:
And so the third factor of trombetta is whether the evidence was reasonably available by other means.

[00:10:41] Speaker 02:
The government would strenuously argue here that it was.

[00:10:44] Speaker 02:
There was nothing preventing the defendant from calling Mr. Clemens as soon as he was released, because we know he was released on his own recognizance in that June case.

[00:10:55] Speaker 02:
And at the time, you know, it takes weeks, if not at least a month or two for the state to negotiate a guilty plea when Mr. Roan was released on that case in June of 2023.

[00:11:05] Speaker 02:
He didn't know what was going to happen.

[00:11:08] Speaker 02:
But if he was this up in arms about the fact that Light did in fact work, all the government is saying is that he had means.

[00:11:16] Speaker 02:
And there was never any mention below that he tried to

[00:11:19] Speaker 02:
to exhaust those.

[00:11:20] Speaker 02:
But the other basic point is whenever one hears Trombetta claim, there has to be a destruction of evidence.

[00:11:27] Speaker 02:
This evidence was not destroyed.

[00:11:29] Speaker 02:
At most, it was released from impound.

[00:11:31] Speaker 02:
And even I believe the district court also made an express finding that he saw no destruction.

[00:11:37] Speaker 02:
And the last point I want to make about Trombetta is, as we point out in our briefs,

[00:11:42] Speaker 02:
You know, there's another fundamental disconnect here.

[00:11:46] Speaker 02:
The law has never been read, at least Trombetta law, to impose an affirmative duty on the government to create evidence that didn't exist.

[00:11:56] Speaker 02:
I mean, you see it, you know, a lot of municipalities now, they have body cams, dash cams, as a matter of policy.

[00:12:02] Speaker 02:
I don't believe that's constitutionally required.

[00:12:06] Speaker 02:
If the municipality was going to, let's say, destroy the car, and I think this was the Loudhawk case where they destroyed dynamite, they took a picture of it first.

[00:12:16] Speaker 02:
In this case, there was no destruction of the car by the state, so there would have never been any need for them to make a video of that.

[00:12:24] Speaker 02:
So that's basically the government's position on Trombetta.

[00:12:28] Speaker 02:
Now, as for the double jeopardy,

[00:12:32] Speaker 02:
A couple points, and the government appreciates defense counsel's admissions.

[00:12:37] Speaker 02:
It is unfortunate that the Blockburger point wasn't made expressly to the court below.

[00:12:44] Speaker 02:
What the government did, it was almost like we presumed that there could be a double jeopardy claim and all the litigation was about the Barkus exception.

[00:12:52] Speaker 02:
But as this court is aware,

[00:12:55] Speaker 02:
In his defense, he even pointed out, it's a pure issue of law.

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And I believe there is precedent from this court that says parties aren't limited to the exact arguments they've made below.

[00:13:03] Speaker 02:
And there was no question that the government had always opposed this double jeopardy claim.

[00:13:09] Speaker 02:
But so long as the court finds that the Blockbuster, I'm sorry, if the court finds that the Blockberger test is not satisfied,

[00:13:20] Speaker 02:
As far as the comments about the discovery, the government would have two points.

[00:13:24] Speaker 02:
First of all, failure to satisfy Blockburger renders the rest of it irrelevant.

[00:13:30] Speaker 02:
It's the government's position.

[00:13:31] Speaker 02:
We cited cases, I believe, at page 18 of the government's brief.

[00:13:36] Speaker 02:
There's a district court case out in Nevada.

[00:13:39] Speaker 02:
I couldn't find any cases from the Ninth Circuit, but I found plenty from other circuits which say when the Blockburger test is not satisfied, you don't even get to the Barker's exception.

[00:13:49] Speaker 02:
But the other thing I just want to point out, you know, to the extent, you know, there was a lot of mention below from defense that, oh, this just seems unusual.

[00:13:58] Speaker 02:
It doesn't pass the smell test.

[00:14:00] Speaker 02:
It is an unusual set of circumstances, but I think there is an explanation in the record.

[00:14:05] Speaker 02:
The prosecutor represented below that he never even knew anything about those state cases until the second arrest, which was November 6.

[00:14:16] Speaker 02:
The federal complaint came just three weeks later on November 28.

[00:14:19] Speaker 02:
The defendant was arrested the day after.

[00:14:22] Speaker 02:
At page 440 of the record, it's indicated that the defendant didn't have a stable residence at the time.

[00:14:30] Speaker 02:
So the federal agents apparently they obviously they're armed with an arrest warrant and it's only federal agents that arrest him.

[00:14:37] Speaker 02:
They know from the state records that his next appearance, and he's on his own recognizance, will be at the state court.

[00:14:43] Speaker 02:
So I think that's the explanation for that.

[00:14:45] Speaker 02:
But that's certainly, yes, it's unusual.

[00:14:47] Speaker 02:
I've been here many years in the U.S.

[00:14:50] Speaker 02:
Attorney's Office.

[00:14:50] Speaker 02:
I haven't seen a situation like that.

[00:14:53] Speaker 02:
Unfortunately, the prosecutor who was on the case at the time has left the office.

[00:14:57] Speaker 02:
So I can't give any further explanation of the circumstances.

[00:15:02] Speaker 02:
The only thing I would point out is that even if the Blockburger test weren't satisfied, you still have here no evidence of the improper collusion.

[00:15:12] Speaker 00:
I know.

[00:15:13] Speaker 00:
And that's what your friend on the other side is complaining about, is that he made a motion for discovery on that issue and he didn't get it.

[00:15:23] Speaker 02:
Right.

[00:15:24] Speaker 02:
And at the time, the court, though, he was relying solely on the timing.

[00:15:27] Speaker 02:
But you look at other authorities, like the Lucas case from this court, Lucas said,

[00:15:33] Speaker 02:
Quincetanel perfect timing in and of itself is not enough.

[00:15:37] Speaker 02:
The prosecutor represented to the court that he had no emails, no communications.

[00:15:42] Speaker 02:
The district court found that there was no communication between the state and the federal before the two state offenses.

[00:15:50] Speaker 02:
My only point, just a big picture, is the whole point of this Barkus exception is to show some kind of collusion.

[00:15:57] Speaker 02:
They talk about where there's an initial state or federal, and then the second one is a sham, a tool, and the court, the case law says it's very hard to prove that.

[00:16:07] Speaker 02:
And here, if the federal government had zero involvement in those first two arrests, there's no improper use of the machinery.

[00:16:16] Speaker 02:
You know, another case uses the word where one sovereign dominates the judicial machinery of the other one.

[00:16:23] Speaker 02:
You don't have that.

[00:16:24] Speaker 02:
And then when the arrest time comes for the federal case, I think it's pages two of three, the supplemental excerpts of record, it's only FBI agents.

[00:16:34] Speaker 02:
All the timing is what it is, but the point being, it never looks like, I don't understand how one could say it's a sham because the state was allowed to do what they wanted without any interference.

[00:16:46] Speaker 02:
And again, jeopardy is measured as of the time of the guilty plea.

[00:16:49] Speaker 02:
It's not measured as of the time of sentencing.

[00:16:52] Speaker 02:
So, you know, the state cases, they didn't have to end up dismissing them, but they did.

[00:16:57] Speaker 02:
But again, my point being, if the Blockburger test isn't satisfied, the government's position is that this is all academic.

[00:17:04] Speaker 00:
So, Roan is serving no time on the state court conviction.

[00:17:10] Speaker 02:
Correct.

[00:17:11] Speaker 02:
Which is also, you know, and maybe that's the last ironic thing I'll point out because I know that, you know, I think the defense referred to it as that the federal government had somehow conspired with the state to breach the plea agreement.

[00:17:23] Speaker 02:
That case is gone.

[00:17:25] Speaker 02:
You know, I would think a lot of, he has less paper, less convictions because of that.

[00:17:31] Speaker 02:
So if anything, the fact that the federal, you know, came in, if perhaps awkwardly at most,

[00:17:37] Speaker 02:
It actually relieved him of that other case and all the consequences that flow from that.

[00:17:42] Speaker 02:
So unless the court has any further questions, I would yield the remainder of my time.

[00:17:47] Speaker 00:
OK.

[00:17:47] Speaker 00:
Thank you, counsel.

[00:17:48] Speaker 02:
Thank you.

[00:17:57] Speaker 01:
With my limited time, I want to touch briefly on the Fourth Amendment issue.

[00:18:02] Speaker 01:
I'll just note this.

[00:18:02] Speaker 01:
The discovery issues.

[00:18:05] Speaker 01:
and certainly the lack of the vehicle being preserved, the lack of the dispatch audio being preserved, I think that implicates the government's burden under the Fourth Amendment to stand up for the legality of their stop.

[00:18:20] Speaker 01:
And not once did the government brief totality of the circumstances, did they list out the other circumstances other than officer credibility.

[00:18:32] Speaker 01:
really raised orally in the hearings.

[00:18:35] Speaker 01:
It wasn't even raised in the answering brief.

[00:18:37] Speaker 01:
And I find that troubling because this is their burden.

[00:18:40] Speaker 01:
And ultimately, if I'm going to challenge that stop, I want to see the government actually have the evidence to demonstrate that the stop was legitimate.

[00:18:50] Speaker 01:
Last point, just from, I'd like to read a quote from the United States versus Soto Zuniga.

[00:18:59] Speaker 01:
It says that

[00:18:59] Speaker 01:
It may well be that Agent Rabot's experience and knowledge is consistent with the general practices at the San Clemente checkpoint, but there is a risk that the district court made its decision as if in part blindfolded.

[00:19:12] Speaker 01:
Considering only one version of the evidence, our system of criminal justice relies on an adversary system to help ensure that justice will be done.

[00:19:20] Speaker 01:
And I think that's the trouble here is I didn't get the evidence I was looking forward to make as robust of a challenge as I would have liked.

[00:19:27] Speaker 01:
Thank you.

[00:19:28] Speaker 00:
All right.

[00:19:28] Speaker 00:
Thank you, counsel.

[00:19:29] Speaker 00:
U.S.

[00:19:30] Speaker 00:
versus Rome is submitted.

[00:19:33] Speaker 00:
And we'll take up our last case for today.

[00:19:37] Speaker 00:
U.S.

[00:19:37] Speaker 00:
versus Balandian.