[00:00:00] Speaker 03:
We'll go ahead and move on to argument in our second case set for today, which is United States versus Rivera case number 24-673 and we'll hear first from Mr. Fish.

[00:00:13] Speaker 01:
Good morning, Your Honors, and may it please the court, Eric Fish, appearing for Mr. Rivera, the appellant.

[00:00:18] Speaker 01:
I'd like to reserve five minutes of my time for rebuttal.

[00:00:21] Speaker 01:
So I'd like to begin with the sentencing issues in this case, and in particular, the drug approximation issue.

[00:00:26] Speaker 01:
This case is squarely controlled by United States versus Gonzalez Sanchez, and the factual similarities are remarkable.

[00:00:33] Speaker 01:
In Gonzalez Sanchez, the defendant flushed an amount of drugs down the toilet.

[00:00:39] Speaker 01:
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 01:
And in that case, the finding was reversed.

[00:00:52] Speaker 01:
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,

[00:01:01] Speaker 01:
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.

[00:01:10] Speaker 01:
Without that, conversion into cash is improper.

[00:01:12] Speaker 03:
So was there a special jury verdict in Gonzales Sanchez that found the amount of drugs?

[00:01:25] Speaker 01:
There was no special jury verdict discussed in the opinion, Your Honor.

[00:01:29] Speaker 01:
There is a special jury verdict here.

[00:01:31] Speaker 01:
I can distinguish that.

[00:01:33] Speaker 03:
Yeah, I guess that's what I'm sort of leading into, is that seems a pretty easy distinction in this case, where you have a jury that actually found a specific amount.

[00:01:46] Speaker 03:
So why isn't that enough?

[00:01:47] Speaker 01:
Well, so the jury verdict does not have estoppel consequences in this case for two principal reasons.

[00:01:53] Speaker 01:
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.

[00:02:11] Speaker 01:
That latter basis, which was available to the jury based on its instructions, would not support the drug approximation.

[00:02:18] Speaker 01:
analysis.

[00:02:19] Speaker 01:
In addition, the jury's instructions said it could find it was either direct or indirect, the connection between the money and the drugs.

[00:02:26] Speaker 01:
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.

[00:02:41] Speaker 01:
So for both of those reasons, the jury verdict

[00:02:44] Speaker 01:
is distinguishable, the judge also did not rely in sentencing on this case on the jury's special forfeiture verdict.

[00:02:50] Speaker 01:
The only factor the judge discusses in imposing the sentence is the money that was found.

[00:02:57] Speaker 01:
And so we don't think that the forfeiture verdict supports the enhancements.

[00:03:03] Speaker 01:
In addition, the judge needed to sort of specify the amount of money, specify

[00:03:09] Speaker 01:
this particular source of the money and go through an analysis of 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 01:
Cases cited in Gonzalez-Sanchez that satisfy this condition have much higher sort of thresholds of evidence than was present here.

[00:03:35] Speaker 01:
So for example, in Stevenson,

[00:03:37] Speaker 01:
members of the defendant's drug distribution ring habitually arranged their proceeds in a particular and readily identifiable manner.

[00:03:44] Speaker 01:
We don't have that here.

[00:03:46] Speaker 01:
We don't have evidence of how money from drug transactions were arranged.

[00:03:51] Speaker 01:
Also, in United States v. Hicks, the defendant admitted that the majority of the money came from drug sales.

[00:03:59] Speaker 01:
Obviously, we don't have any sort of admission here.

[00:04:02] Speaker 01:
So for that reason, I believe the drug approximation enhancement should be reversed.

[00:04:06] Speaker 01:
I can move now to the premises enhancement.

[00:04:11] Speaker 01:
So 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.

[00:04:22] Speaker 01:
The purpose is to target the particular harms that come from residences or buildings that are specifically for the purposes of either manufacturing or distributing drugs.

[00:04:35] Speaker 01:
And here, this was Mr. Rivera's home.

[00:04:37] Speaker 01:
There's lots of evidence.

[00:04:39] Speaker 01:
I encourage this court to look at the photographs in the excerpts of record.

[00:04:43] Speaker 01:
It is furnished.

[00:04:44] Speaker 01:
There are decorations on the walls.

[00:04:46] Speaker 01:
There's a television.

[00:04:47] Speaker 01:
There's a foosball table.

[00:04:48] Speaker 01:
There's an arcade game.

[00:04:49] Speaker 01:
There's beds.

[00:04:50] Speaker 01:
There's a full dining room.

[00:04:52] Speaker 01:
This was Mr. Rivera and two other people's primary residence.

[00:04:56] Speaker 01:
And the mere fact of the presence of drugs doesn't make it a stash house.

[00:05:00] Speaker 01:
So the guidelines specifically

[00:05:04] Speaker 01:
is concerned with manufacturing and distributing.

[00:05:07] Speaker 01:
There is zero evidence.

[00:05:09] Speaker 02:
But in this case, there's a lot of evidence of what this man and his girlfriend were doing.

[00:05:15] Speaker 02:
Doesn't that convert it into a stash house?

[00:05:19] Speaker 01:
I'm sorry, what they were doing?

[00:05:21] Speaker 01:
Putting things down the toilet and all that sort of thing.

[00:05:25] Speaker 01:
Right.

[00:05:26] Speaker 01:
So the presence of drugs in the house is sort of one piece of evidence.

[00:05:31] Speaker 01:
Right.

[00:05:34] Speaker 01:
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, 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.

[00:06:02] Speaker 01:
evidence of manufacture, there's no laboratory equipment, there's very little evidence of any sort of regular... I may be wrong, but I thought there was a scale that had residue on it.

[00:06:14] Speaker 02:
Am I mistaken?

[00:06:15] Speaker 01:
There was a scale.

[00:06:15] Speaker 01:
By manufacturer, I mean producing the actual methamphetamine.

[00:06:19] Speaker 01:
Understood.

[00:06:20] Speaker 01:
So the guideline mentions manufacturing and distributing methamphetamine.

[00:06:25] Speaker 03:
There's little to no evidence that... So is your position this guideline can only apply if they were actually manufacturing the mass?

[00:06:32] Speaker 01:
Or distributing.

[00:06:33] Speaker 03:
Or distributing.

[00:06:34] Speaker 01:
OK.

[00:06:34] Speaker 03:
So I mean, the scale, the problem is some of your arguments were aimed at manufacturing.

[00:06:41] Speaker 03:
But the scale, as Judge Smith pointed to, why wouldn't that support distributing?

[00:06:48] Speaker 01:
So the question is whether meth distribution was a primary purpose of the residents.

[00:06:54] Speaker 01:
The mere presence of a scale and some amount of methamphetamine

[00:06:58] Speaker 01:
isn't enough to support the idea that this was essentially a stash house, that is, a place for which- Well, I wonder if you're overstating.

[00:07:06] Speaker 03:
I mean, I guess it's hard to know.

[00:07:08] Speaker 03:
We haven't really addressed this in a published case.

[00:07:12] Speaker 03:
The closest case I could find was the Johnson case from the Sixth Circuit.

[00:07:16] Speaker 03:
And do you think, I mean, if Johnson were the law in the Ninth Circuit, how would you distinguish it?

[00:07:24] Speaker 01:
So I think Johnson is distinguishable for several reasons.

[00:07:28] Speaker 01:
First, dealing from the home was proven in Johnson.

[00:07:31] Speaker 01:
That is, there was evidence of actual drug transactions occurring in the home.

[00:07:34] Speaker 01:
We have little evidence of that here.

[00:07:36] Speaker 01:
There's some speculation based on one of the text messages maybe 15 months ago.

[00:07:40] Speaker 01:
But that text message also references going to a Burger King.

[00:07:43] Speaker 01:
In Johnson, there was a separate storage room.

[00:07:49] Speaker 03:
In your view, does the enhancement require

[00:07:54] Speaker 03:
the drugs to be exchanged at the home?

[00:07:57] Speaker 03:
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 01:
Well, so the enhancement is concerned with distribution.

[00:08:11] Speaker 01:
So the question is, what does distribution mean?

[00:08:13] Speaker 01:
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.

[00:08:23] Speaker 01:
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.

[00:08:40] Speaker 01:
in using drugs in that place or nearby.

[00:08:44] Speaker 01:
There's violence.

[00:08:46] Speaker 01:
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.

[00:08:57] Speaker 01:
And that's just not present here.

[00:08:58] Speaker 01:
The purpose of the enhancement was not to add additional sentencing time to people who live in a residence and are also drug dealers.

[00:09:08] Speaker 01:
the problem the enhancement is oriented to is stash houses.

[00:09:13] Speaker 03:
Well, but Johnson didn't seem to take that same interpretation.

[00:09:17] Speaker 03:
I mean, as I read Johnson, it said that, yes, it's true, incidental storage would not be enough.

[00:09:23] Speaker 03:
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 03:
But the question is, do we have more than that here?

[00:09:38] Speaker 01:
Well, so other distinctions between this case and Johnson.

[00:09:41] Speaker 01:
In Johnson, it was marijuana, and there was a separate room in the residence just for the purposes of storing marijuana.

[00:09:48] Speaker 01:
Here we have these Ziploc bags that contained methamphetamine in the bedroom.

[00:09:56] Speaker 01:
That is one sort of like a chest next to the bed.

[00:10:01] Speaker 01:
And so that's the sort of,

[00:10:03] Speaker 01:
That's another distinction.

[00:10:04] Speaker 01:
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 01:
There's also significantly more cash found in Johnson's.

[00:10:14] Speaker 01:
$15,000 are present.

[00:10:16] Speaker 01:
So I think it could be distinguished on the facts there.

[00:10:19] Speaker 01:
And the key analysis is looking at the factors that make it a stash house and looking at the factors that make it a residence.

[00:10:28] Speaker 01:
And here, there's quite a bit on the side of the scale of it being a residence.

[00:10:33] Speaker 01:
That is, they live there.

[00:10:34] Speaker 01:
They get their bills sent there.

[00:10:37] Speaker 01:
There's all the sort of photographs of a lived-in residence that are present in the excerpts of record.

[00:10:44] Speaker 01:
I'd like to move on to the Second Amendment issue, if I may.

[00:10:48] Speaker 01:
Yeah.

[00:10:48] Speaker 01:
I can say we can dispose of that rather quickly with Duarte and Bongshui, can't we not?

[00:10:54] Speaker 01:
So Duarte and Vangstey concern the possession of firearms.

[00:10:59] Speaker 01:
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 02:
And this is a 923G1 issue.

[00:11:14] Speaker 01:
So yes, so this is distinguishable from Vanck's d'Anduarte 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.

[00:11:29] Speaker 01:
And as we argue in our brief, such a tradition is absent in the United States.

[00:11:33] Speaker 01:
The Second Amendment clearly covers ammunition.

[00:11:35] Speaker 01:
And the only laws from sort of the founding period that the government is able to point to that

[00:11:42] Speaker 01:
regulates 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 03:
So whether you're right or wrong on that, I think we've got a bigger problem.

[00:12:01] Speaker 03:
As I understand it, this wasn't raised in any pretrial order.

[00:12:06] Speaker 01:
That's true.

[00:12:07] Speaker 01:
So we argue that this is a jurisdictional issue.

[00:12:10] Speaker 01:
That is, that the facial unconstitutionality 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.

[00:12:20] Speaker 01:
And we have cases showing that.

[00:12:22] Speaker 01:
And so that's the basis on which we argue that this court can reach the Second Amendment issue.

[00:12:27] Speaker 03:
I see.

[00:12:27] Speaker 03:
So it's sort of not a facial application, but you're just saying, hey, we've got to invalidate the law.

[00:12:35] Speaker 01:
So invalidating the prosecution of ammunition alone.

[00:12:39] Speaker 01:
Yes, that's right, Your Honor.

[00:12:42] Speaker 01:
And then I'd like to move, if I may, to the expert witness issue.

[00:12:47] Speaker 01:
So in this case, Agent Neering, 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

[00:13:04] Speaker 01:
and a fact witness describing what actually happened.

[00:13:07] Speaker 03:
You said indistinguishably.

[00:13:09] Speaker 03:
I don't think we should gloss over it because that seems to be where

[00:13:13] Speaker 03:
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.

[00:13:18] Speaker 03:
The district court did say like, look, you're going to you're going to testify as a fact witness first and then he came brought him back later as an expert witness.

[00:13:27] Speaker 03:
You don't disagree with that.

[00:13:28] Speaker 01:
That's correct.

[00:13:29] Speaker 01:
The district court said that and the district court instructed the jury that was happening.

[00:13:32] Speaker 01:
The problem is that that did not happen.

[00:13:35] Speaker 03:
During the fact testimony, there were certain positions.

[00:13:40] Speaker 03:
Those were all objected to, correct?

[00:13:44] Speaker 01:
So Agent Nearing's use of his expert testimony to testify about how much methamphetamine is normally in a Ziploc bag, that was objected to.

[00:13:53] Speaker 01:
The defense counsel also objected at the outset of the trial that the

[00:13:58] Speaker 01:
expert testimony needed to be bifurcated from the fact testimony and sought the judge to enforce that.

[00:14:06] Speaker 03:
Maybe you can walk through, because I identified basically three examples of what you say are expert testimony that was shoehorned into the witness testimony category.

[00:14:22] Speaker 03:
He started testifying about trash appearing, appeared to have been

[00:14:28] Speaker 03:
full of, there appeared to be enough, what was this issue?

[00:14:34] Speaker 03:
The trash appeared to have been full of trash before, right?

[00:14:37] Speaker 01:
Yeah, yeah, right.

[00:14:38] Speaker 01:
So basically the three harms we allege that caused this to affect the verdict are our first,

[00:14:45] Speaker 01:
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 01:
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 01:
So the defense counsel objected.

[00:15:05] Speaker 01:
The judge then gave a dual role instruction.

[00:15:07] Speaker 01:
The defense counsel did not withdraw the objection at that point.

[00:15:11] Speaker 01:
The defense counsel agreed.

[00:15:12] Speaker 01:
to the instruction being given, but the instruction did not cure the error.

[00:15:15] Speaker 01:
The instruction merely said, agent Nearing is testifying now as a fact witness.

[00:15:20] Speaker 01:
If anything, that compounds the error, because the jury is being told, these are facts you are hearing.

[00:15:25] Speaker 01:
The instruction did not tell the jury to sort of dismiss that testimony.

[00:15:32] Speaker 01:
Not to treat opinion evidence as fact evidence, or to not give the agents testimony more weight based on their expertise.

[00:15:39] Speaker 01:
In addition,

[00:15:40] Speaker 03:
Now with the second one, there was an instruction given to disregard the testimony about the toilet bowl residue dissolving.

[00:15:49] Speaker 01:
That's right.

[00:15:50] Speaker 03:
So how does that, I mean, are you still relying on that?

[00:15:53] Speaker 01:
Sorry, the residue.

[00:15:54] Speaker 03:
The residue in the toilet pole was dissolved.

[00:15:56] Speaker 01:
So that was another point in which an objection was made.

[00:15:58] Speaker 03:
Right, exactly.

[00:15:59] Speaker 03:
And then didn't the judge actually tell the jury to disregard that testimony?

[00:16:03] Speaker 01:
That's right.

[00:16:04] Speaker 01:
So we're not relying on that as air.

[00:16:09] Speaker 01:
So beyond that, the fact that Agent Earing was certified as an expert in all of his, like, hundreds and hundreds of different cases and different

[00:16:19] Speaker 01:
methods of investigation were testified about before his initial fact testimony, that unfairly bolstered his fact testimony, which is another source of error.

[00:16:28] Speaker 01:
And then third, basically, Agent Earing 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

[00:16:45] Speaker 01:
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 01:
Shortly after that,

[00:17:05] Speaker 01:
The agent nearing testified that in this case, he sent someone to go find the trash of Mr. Rivera and go through it to find evidence.

[00:17:12] Speaker 01:
This strongly suggests to the jury that there is a confidential informant in this case.

[00:17:16] Speaker 01:
There's no other potential relevance to discussing how confidential informants normally work or how often they're used.

[00:17:22] Speaker 01:
And so this is another source of harm, potentially allows hearsay to come in.

[00:17:27] Speaker 01:
That is because no informant testified.

[00:17:30] Speaker 01:
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 is a confidential informant who fingered Mr. Rivera.

[00:17:42] Speaker 03:
Okay, do you want to reserve for a rebuttal?

[00:17:44] Speaker 01:
Yes.

[00:17:44] Speaker 01:
Thank you.

[00:17:54] Speaker 00:
Good morning, Your Honors.

[00:17:55] Speaker 00:
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

[00:18:21] Speaker 00:
The jury returned a special verdict and the special verdict form specifically found that the C's currency was proceeds.

[00:18:29] Speaker 00:
The jury found that the $5,972 is property constituting or derived from proceeds obtained.

[00:18:36] Speaker 00:
Directly or indirectly as a result of the offense charged in count one of the indictments So the argument seems to be that directly or indirectly is what makes that problematic to impute Can you address that yes your honor either way whether it's direct or indirect the cash is still methamphetamine proceeds 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

[00:19:03] Speaker 00:
Going and changing out bills and getting fives for your 20s at the convenience store or something but regardless its methamphetamine proceeds and it's $5,972 the district court could take that finding which satisfies Gonzales Sanchez As well as all the other evidence we can get to and he can use the take the cash And convert it to its drug equivalent as this court has approved as a methodology in Gonzales Sanchez that leads to several pounds of methamphetamine the court then

[00:19:32] Speaker 00:
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.

[00:19:43] Speaker 00:
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.

[00:19:58] Speaker 00:
It's also more than supported

[00:19:59] Speaker 00:
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

[00:20:22] Speaker 00:
Councils argued that the district court didn't consider the jury's verdict at all.

[00:20:26] Speaker 00:
That's not correct.

[00:20:27] Speaker 00:
At ER 32, 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,

[00:20:44] Speaker 00:
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.

[00:20:50] Speaker 00:
And so that that was part of the district court's basis for his finding when he finds the drug.

[00:20:55] Speaker 03:
Doesn't matter.

[00:20:55] Speaker 03:
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.

[00:21:02] Speaker 00:
No, the short answer is no, Your Honor.

[00:21:04] Speaker 03:
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.

[00:21:11] Speaker 03:
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.

[00:21:18] Speaker 00:
I think on an abuse of discretion standard, this court

[00:21:22] Speaker 00:
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 and Gonzales Sanchez And we actually have two findings we have the specific finding by the jury that was referenced at sentencing

[00:21:43] Speaker 00:
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 03:
Can you address the premises enhancement because we don't we don't really have case law in the 9th circuit on this is that I mean is it a problem I mean do we does this come up a lot or the district courts grappling with this.

[00:22:04] Speaker 00:
It does come up from time to time.

[00:22:05] Speaker 00:
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 as the probation officer wrote in the PSR at paragraph 33 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

[00:22:28] 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.

[00:22:35] Speaker 00:
The scale has methamphetamine residue on it showing it's been used in the past to weigh methamphetamine.

[00:22:40] Speaker 00:
It's an 800 gram scale which there was extra 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 and again the size of the bags there was expert testimony that that's consistent with pound level dealers these aren't

[00:23:07] Speaker 00:
the little sandwich bags that might be tied off on the corners to package small amounts.

[00:23:12] Speaker 00:
You have the text messages, which showed drug transactions happening 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.

[00:23:26] Speaker 00:
There's others where he says, I'll come out to you, where it implies he's taking it from you.

[00:23:30] Speaker 03:
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.

[00:23:38] Speaker 00:
The commentary says that storage for the purpose of distribution satisfies or can satisfy the maintaining of premises.

[00:23:47] Speaker 00:
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 03:
Well, the commentary is not passed by Congress, right?

[00:24:10] Speaker 00:
That's true, Your Honor.

[00:24:11] Speaker 00:
OK.

[00:24:12] Speaker 03:
So is that binding on us?

[00:24:13] Speaker 03:
I mean, I think your point would be looking at the text, it supports this application here.

[00:24:24] Speaker 00:
That's correct, your honor.

[00:24:24] Speaker 00:
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 03:
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?

[00:24:47] 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 and He rejected the argument as other courts have that it's dispositive that this is the defendant's home.

[00:25:02] Speaker 00:
It's not As as Johnson found if it's if it's smaller amounts if it's personal use amount somebody has their drugs at home and

[00:25:10] Speaker 00:
Sure, that's not going to be maintaining a premises for drug distribution.

[00:25:14] Speaker 00:
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.

[00:25:26] Speaker 00:
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.

[00:25:33] Speaker 00:
That's not what the guideline says or what the commentary says.

[00:25:37] Speaker 00:
It just needs to be a purpose.

[00:25:39] Speaker 00:
Sure, it was a residence.

[00:25:40] Speaker 00:
He was living there, but it was also central to and necessary to his extensive and long-running drug trafficking operation.

[00:25:48] Speaker 00:
And for all those reasons, the district court did not abuse its discretion in applying the enhancement following Johnson.

[00:25:56] Speaker 03:
What about the Second Amendment?

[00:25:57] Speaker 03:
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.

[00:26:07] Speaker 00:
I think it's actually more than not preserved.

[00:26:09] Speaker 00:
I think it's waived under Rule 12 in this court's decision in Brewster There was no argument that there's good cause here for not raising it below in a rule 12 motion My counsel on the other side says well It's 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 I

[00:26:32] Speaker 00:
It's not uncommon that you would have a case where someone is charged under 18 USC 922 G1 with being a felon in possession of ammunition without an allegation that there's a firearm when factually there is a firearm involved.

[00:26:47] Speaker 00:
The fact pattern in which that comes up most commonly is in terms of ghost guns or guns that are privately manufactured, un-serialized firearms.

[00:26:57] Speaker 03:
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.

[00:27:03] Speaker 00:
It can be very difficult to show the interstate nexus element.

[00:27:07] Speaker 00:
If it's privately manufactured, un-serialized, you can't prove that it was manufactured in another state or in another country, and therefore must have moved in commerce to California.

[00:27:15] Speaker 00:
Those facts are often unknowable.

[00:27:17] Speaker 00:
And so therefore, it can often be very difficult to prove that the firearm traveled in interstate commerce.

[00:27:22] Speaker 00:
But the ammunition can be charged.

[00:27:24] Speaker 00:
And there's many examples of indictments that charge just the ammunition.

[00:27:28] Speaker 03:
We don't have ghost ammunition yet.

[00:27:30] Speaker 00:
I'm sorry?

[00:27:30] Speaker 03:
We don't have ghost ammunition yet.

[00:27:33] Speaker 00:
Not usually.

[00:27:34] Speaker 00:
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.

[00:27:43] Speaker 00:
But factually, there was evidence that there was a firearm.

[00:27:46] Speaker 00:
There were statements from the confidential source that the confidential source had seen Mr. Rivera

[00:27:51] Speaker 00:
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 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.

[00:28:15] Speaker 00:
Even if it's not waived, it's certainly plain air review and it can't be plain under

[00:28:20] Speaker 00:
As one of your honors mentioned this court's decisions in Duarte and Vongshe.

[00:28:32] Speaker 03:
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.

[00:28:56] Speaker 00:
Government Council 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 And we agreed that would be read both during trial at the point of testimony and

[00:29:20] Speaker 00:
And then in the final closing jury instructions, that's what the court did.

[00:29:24] Speaker 00:
We also, importantly, bifurcated or separated the testimony into a fact phase and an expert phase.

[00:29:31] Speaker 00:
And it wasn't even just a break in the middle of the same testimony where we turned to the expert phase.

[00:29:36] Speaker 00:
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 Council now raises I think three instances on appeal where he says or where Rivera says that the expert testimony Or that the fact testimony bled into expert testimony a little bit It didn't though those were proper lay testimony in each instance, and I can go through those

[00:30:07] Speaker 00:
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 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

[00:30:37] Speaker 00:
Because as this court has recognized, lay opinion can include, and this is the Perez case, for example, indicia of drug trafficking.

[00:30:45] Speaker 00:
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.

[00:31:18] Speaker 00:
It did not wrongly imply that there was specific information from a confidential source that could be used against Rivera.

[00:31:27] Speaker 00:
It was just foundational testimony, and moreover, the court

[00:31:31] Speaker 00:
Dutifully instructed the jury not to consider any evidence outside the record emphasize 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

[00:31:53] Speaker 00:
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 and so the specific testimony objected to didn't even bleed into

[00:32:14] Speaker 00:
into expert testimony during the fact phase.

[00:32:16] Speaker 00:
The third example, actually, is one that occurred on cross-examination.

[00:32:22] Speaker 00:
Defense counsel made a factual assertion about the bags being empty, and Agent Nearing reasonably responded, well, they weren't exactly empty.

[00:32:32] Speaker 00:
There were shards of meth in there, and then said something about his experience.

[00:32:36] Speaker 00:
But it was invited by defense counsel's question.

[00:32:42] Speaker 00:
There's certainly not plain air here because the safeguards were followed.

[00:32:47] Speaker 00:
That's what this court's decision in Freeman teaches.

[00:32:52] Speaker 00:
If the safeguards are followed, there's no basis for finding plain error.

[00:32:58] Speaker 00:
And there was no error at all.

[00:33:00] Speaker 00:
Even if it were preserved, it's an abusive discretion standard because the court has substantial deference in making these fact-bound 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.

[00:33:16] Speaker 00:
If not, I would ask the court to affirm.

[00:33:18] Speaker 03:
Thank you very much.

[00:33:19] Speaker 00:
Thank you, Your Honor.

[00:33:20] Speaker 03:
We'll give you time for rebuttal.

[00:33:29] Speaker 01:
Thank you, Your Honor.

[00:33:29] Speaker 01:
So I'd like to start with the jury instruction.

[00:33:32] Speaker 01:
So at 5ER 862 is the instruction the jury was given concerning forfeiture.

[00:33:38] Speaker 01:
And it does have the language about committing or facilitating the commission of a drug violation.

[00:33:44] Speaker 01:
That language is not in the verdict form, as my colleague noted.

[00:33:47] Speaker 01:
But juries, as this court and the Supreme Court's case law have made clear, are presumed to follow jury instructions.

[00:33:54] Speaker 01:
And in a Ninth Circuit case, United States versus Espino, 892, F3rd, 1048,

[00:34:01] Speaker 01:
there was a constitutional problem with the verdict form and the court relied on the jury instructions to sort of override what the verdict form said.

[00:34:11] Speaker 01:
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

[00:34:30] Speaker 01:
proceeds of methamphetamine transactions.

[00:34:32] Speaker 01:
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 01:
In addition, so the judge did not base the amount approximation on the jury's verdict.

[00:34:54] Speaker 01:
The judge just acknowledged on the record, as the prosecutor indicated,

[00:34:59] Speaker 01:
you know, well, there is that.

[00:35:01] Speaker 01:
But the only basis the sentencing judge gave for the drug approximation was the cash.

[00:35:08] Speaker 01:
That is, the money found in the apartment and under Gonzales Sanchez, that is not sufficient.

[00:35:15] Speaker 01:
So in addition, moving on to the premises enhancement.

[00:35:19] Speaker 01:
So the language of the enhancement says the purpose, not a purpose.

[00:35:23] Speaker 01:
the purpose.

[00:35:24] Speaker 01:
So the purpose of the residence needs to be manufacturing or distribution of drugs.

[00:35:31] Speaker 01:
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.

[00:35:40] Speaker 01:
And this is underscored by the fact that this enhancement is based on a law passed by Congress and borrows language from a law passed by Congress.

[00:35:47] Speaker 01:
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.

[00:35:58] Speaker 01:
We would point this court to the Seventh Circuit's decision in Kraft, which we discussed in our briefs, in which there was evidence of multiple drug exchanges occurring at the residence.

[00:36:08] Speaker 01:
There was evidence of the presence of drugs at the residence.

[00:36:11] Speaker 01:
But that was found to be insufficient for intervention.

[00:36:16] Speaker 01:
Oh, I'm sorry?

[00:36:17] Speaker 01:
Oh, that was found insufficient for it to be a purpose, or the purpose, I mean, of the residence.

[00:36:22] Speaker 01:
That is, it has to be not just a purpose.

[00:36:26] Speaker 01:
It has to be the purpose.

[00:36:28] Speaker 01:
Someone can live at a residence that satisfies this enhancement.

[00:36:32] Speaker 01:
But here, the guidelines instruct us to look at all the lawful purposes to which it was put, which include living there, sleeping there, eating there, et cetera.

[00:36:43] Speaker 01:
Moving on to the Second Amendment issue,

[00:36:45] Speaker 01:
So it is clear from the face of the indictment that this court can decide our argument because our argument is premised on

[00:36:56] Speaker 01:
the idea that the government can only prosecute ammunition if it is also prosecuting guns.

[00:37:02] Speaker 01:
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.

[00:37:17] Speaker 01:
That could potentially be prosecuted

[00:37:18] Speaker 01:
in state court or some.

[00:37:20] Speaker 03:
You've gone over.

[00:37:23] Speaker 03:
I've given you some leeway, but I think we have your arguments on this.

[00:37:26] Speaker 03:
So I wouldn't worry.

[00:37:28] Speaker 03:
Yeah, thank you.

[00:37:29] Speaker 03:
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 03:
All rise.