[00:00:00] Speaker 00:
Case number 241172, United States versus Lohr.

[00:00:34] Speaker 02:
Good morning or afternoon, Your Honors.

[00:00:36] Speaker 02:
I don't know which it is.

[00:00:37] Speaker 02:
I'm Josh Lee from the Federal Public Defender's Office, and I represent Kong Lor.

[00:00:42] Speaker 02:
The question presented in this case is whether the district court clearly erred when it ruled that the government met its burden to prove that a 1995 Honda Civic that Mr. Lor stole was worth at least $2,000.

[00:00:58] Speaker 02:
This court should have a definite and firm conviction that the government did not meet its burden of proof.

[00:01:04] Speaker 02:
The police who arrested Mr. Lohr generated a blue book report for the stolen car that, one, estimated the car's value as $1,939, and two, stated a valuation range with a preponderance of values less than $2,000.

[00:01:25] Speaker 02:
The prosecution presented no credible evidence that the car was worth more than $2,000.

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It didn't present any contrary report that valued the car at $2,000 or more.

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It didn't present proof that any similar car had sold for $2,000 or more.

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And it presented no valid reason to think that the blue book overestimated the car's value.

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Under those circumstances, the court should find that the government clearly failed to meet its burden of proof.

[00:01:55] Speaker 02:
So one thing that's important, I think, is that this $2,000 threshold is an element of the offense that the government had to prove to obtain this four-level enhancement.

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So it's a bright line.

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The true value of the car is $1,999.99.

[00:02:15] Speaker 02:
He's not guilty of the felony offense.

[00:02:20] Speaker 02:
So the fact that this is close to $2,000 is just not good enough.

[00:02:25] Speaker 02:
There's a case from the Colorado Supreme Court called Henson that says that if the prosecution's proof is that the value of the property is in the vicinity of the threshold, then the defendant's not guilty of the offense.

[00:02:42] Speaker 02:
So here, the Blue Book valued the car at $1,939, based on a survey of actual transactions involving similar... Well, that's the midpoint.

[00:02:53] Speaker 00:
That's not actually the value.

[00:02:54] Speaker 00:
There's a range which is important to the facts here, isn't it?

[00:02:58] Speaker 02:
Right.

[00:02:59] Speaker 02:
I think that, yes, this was the

[00:03:01] Speaker 02:
valuation, and then there's a margin of error on either side, right?

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But that actually helps Mr. Lohr, not the government.

[00:03:09] Speaker 00:
I'm not sure I'd call it a margin of error.

[00:03:11] Speaker 00:
I think it gives a range of the valuation, depending on the nature of the vehicle, basically.

[00:03:16] Speaker 02:
Right.

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Which we don't exactly know here.

[00:03:19] Speaker 00:
So what it does do is... It's 1,188 to 2,689 is the range that the blue book gives.

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Right.

[00:03:27] Speaker 02:
And so here's why I think that it helps Mr. Lohr.

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It helps Mr. Lohr for several reasons.

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One, you have the Aragon case that says where you have a number of plausible estimates, the district court should err on the side of caution and give the defendant the benefit of the doubt.

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So actually, the district court needed to assume it fell on the low end.

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So that's reason number one.

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Reason number two is we're not in equipoise here.

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54% of the values fell below $2,000, and only 46% of them fell above.

[00:04:04] Speaker 00:
But right, but there's other, the government, that's not the only evidence that we have.

[00:04:09] Speaker 00:
If that were the only thing we had, your argument would be stronger, I think.

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But don't you have to deal with the fact that you also had a CarMax offer?

[00:04:18] Speaker 00:
of $1,100.

[00:04:20] Speaker 00:
You had the Facebook marketplace ads for similar vehicles for sale between $3,200 and $4,500 and even up to $6,000.

[00:04:29] Speaker 00:
I mean, the district court was entitled to certainly

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select something anywhere in the range from 1,100 to 6,000, really.

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And the Kelly Blue book was just one aspect of that.

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So I think it's not right that the district court was entitled to rely on these Facebook marketplace ads.

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So, you know, if all we have is the Blue Book range, right?

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But that's not all we have.

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That's not enough.

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So then the question is, if the Blue Book doesn't get the government where it needs to be, the question is like, what else do they have?

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And these Facebook marketplace posts, they don't count for anything.

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Number one, these are asking prices.

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And as such, they just aren't relevant because the question is, what would a buyer pay, not what a seller hopes to get?

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And then these particular asking prices definitely don't count as any sort of legitimate evidence.

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These are just random people on Facebook

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posting that they wish somebody would pay them double the blue book value for their old cars.

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I mean, it's not evidence of anything.

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I could go on Facebook right now and list my 14-year-old Toyota Camry for a million dollars if I wanted to do that.

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So I don't see how that can be taken as evidence of anything.

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Then the other thing that we have, so that's the Facebook marketplace post don't count as anything.

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The other thing that they have is they say, well,

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In this other theft case that we were prosecuting, we have a husband of the theft victim who said, I think that the car that was stolen in that case was worth $6,000.

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But again, there was never any finding by anybody that the car was actually worth $6,000.

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That's just like what the husband implausibly guessed that it was worth.

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You can't use, you know, this court's cases say you can't make fact finding based on speculation or guesswork.

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And so you can't use the husband's guess about what a different car was worth to value what the car was in this case.

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So really what we're down to is we have, we only have one piece of legitimate evidence.

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It's this blue book.

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And the Blue Book report shows, more likely than not, that the car was worth less than $2,000.

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The other things that the government points to are just not worth anything.

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One of the things- Before you go on, does the record indicate whether or not Kelly will factor in condition?

[00:07:19] Speaker 02:
The record indicates that the police officer in this case used the mechanical condition of the car to generate the report.

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So what the police officers... Well, I'm talking about, is there anything in the record that affects your Kelley Blue Book information that indicates condition could have been

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put into the search.

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Other than the police officer saying that he put it into the search?

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Into the Kelly book.

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The police officer said he did.

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So the evidence in the record is that the police officer asked the victim, you know, what's the mechanical condition of your car?

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The victim said it's in

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good mechanical condition.

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And he said, based on this information, I entered the car into Blue Book with the VIN number and the mileage.

[00:08:20] Speaker 03:
OK.

[00:08:20] Speaker 03:
But what about condition other than mechanical condition?

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That is, dense torn upholstery, stuff like that.

[00:08:29] Speaker 02:
There's no evidence in the record, one way or the other, about whether that's factored into the Blue Book report, although, again,

[00:08:38] Speaker 02:
The officer who generated the blue book report listed the factors that he put in there, which was the good mechanical condition of the car, the VIN number of the car, and the mileage of the car.

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And he didn't list the exterior condition of the car, which helps me because they're- But he said something else, and I can't remember what it was, that indicated this was not clean as a whistle.

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the officer.

[00:09:11] Speaker 02:
So there are other police reports.

[00:09:13] Speaker 02:
So we have several police reports.

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Because one, the officer who generated the blue book report says, here's what I can say.

[00:09:21] Speaker 02:
What the car was, the mileage of the car, and the fact that it ran really well.

[00:09:25] Speaker 02:
Then there are other police reports that are like, you know, there's a dent to this car.

[00:09:31] Speaker 02:
There's headlight damage.

[00:09:33] Speaker 02:
The exterior really overall is only in fair condition.

[00:09:37] Speaker 02:
There's no indication that that was taken into account in the Blue Book report.

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So if anything, the Blue Book value overestimates the true value of the car.

[00:09:49] Speaker 02:
So we have these converging things, which you really need when the standard of review is clear error, which is the pinpoint estimate is below $2,000.

[00:09:59] Speaker 02:
Plurality of the preponderance of the values are below $2,000.

[00:10:04] Speaker 02:
The government hasn't indicated any reason to think that the Blue Book value underestimates the value of the car.

[00:10:13] Speaker 02:
None of the other things they presented are worth anything.

[00:10:16] Speaker 02:
If anything, the Blue Book overestimates the car.

[00:10:19] Speaker 00:
Did the district court consider the fact that apparently the condition of the exterior was not entered into

[00:10:28] Speaker 00:
the blue book value.

[00:10:31] Speaker 02:
So there was argument about that.

[00:10:34] Speaker 02:
At the sentencing hearing.

[00:10:39] Speaker 02:
So defense counsel did point out these defects in the card and at the sentencing hearing.

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The government tried to minimize the defects in the car and compare them to other cars.

[00:10:50] Speaker 02:
The district court though, really its ruling was pretty conclusory.

[00:10:55] Speaker 02:
It just said, I find that the government met its burden of proof.

[00:10:59] Speaker 00:
I guess I thought that that whole discussion had to do with where within the Blue Book range this car might fall.

[00:11:06] Speaker 00:
not, oh, gee, the range was wrong to begin with.

[00:11:10] Speaker 00:
It should have been a lower range.

[00:11:12] Speaker 00:
Oh, right.

[00:11:13] Speaker 02:
Yeah.

[00:11:14] Speaker 02:
And that would be my position.

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My position is that, if anything, the 1,939 estimate that's the midpoint of the range, that the damage to the car pushes it towards the lower end of the range.

[00:11:29] Speaker 02:
So that's a reason to, a further reason in addition to the rule of law that the district court is supposed to err on the side of caution.

[00:11:39] Speaker 02:
Another reason why it couldn't just pick something in the higher value of the range.

[00:11:44] Speaker 02:
So I think one analogy that I thought about that I think is similar to what we have here is imagine that the question were one of drug purity.

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and the government had to prove that methamphetamine was 80% pure.

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And then imagine that it got back a lab report that said this methamphetamine is 79% pure plus or minus 5 percentage points.

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We don't know for sure that the methamphetamine is not 80% pure, but we can definitely say that it would be an error to find by a preponderance of the evidence based on that lab report that the methamphetamine was 80% pure.

[00:12:27] Speaker 02:
So in the same way, this blue book report, even though the valuation range extends above $2,000, the preponderance is that it's below $2,000.

[00:12:38] Speaker 00:
Could you briefly address the Bennett versus Price case, the Colorado case that would seem to suggest that listings or offers which you're saying have zero value.

[00:12:50] Speaker 00:
It seems to say that they're not enough standing alone.

[00:12:55] Speaker 00:
But it doesn't suggest that they don't have any value, which is what you're saying.

[00:13:00] Speaker 02:
The way that I read the Bennett case is that it does say that, because it says that when somebody presented listing prices, that the presentation of listing prices was no admissible evidence, and that listing prices cannot be used as proof.

[00:13:18] Speaker 02:
That being said, I don't think

[00:13:19] Speaker 02:
really need that case because I think what we have here is we don't have the listings of real estate professionals or the retail price tags from Walmart what we have a Facebook post.

[00:13:32] Speaker 02:
Unless there are further questions.

[00:13:34] Speaker 00:
We have an issue here about expediting, is that right?

[00:13:37] Speaker 00:
Yes, right.

[00:13:39] Speaker 02:
Right, yeah.

[00:13:40] Speaker 02:
Mr. Lor would be pretty close to finishing up his sentence before too long, so I ask for expedited argument, and I would also ask for expedited decision.

[00:13:51] Speaker 02:
Thank you.

[00:14:06] Speaker 01:
Good afternoon and may it please the court.

[00:14:08] Speaker 01:
I'm Andrea Wong on behalf of the United States.

[00:14:12] Speaker 01:
The Toronto court here was presented with a blue book range and there were a number of possible values within that range.

[00:14:21] Speaker 01:
There are three separate categories of evidence in the record below.

[00:14:26] Speaker 01:
that support the trial court's finding here that the value of the Honda was not in the exact middle of the range, but instead was at least $61 above the exact middle of the range.

[00:14:38] Speaker 01:
The first category of evidence that supports the trial court's finding is the Facebook marketplace posts.

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These are offers of sale.

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Colorado law is clear that in determining the value of stolen property in their criminal code, the finder of fact can consider

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In the mix of evidence, it offers for sale.

[00:15:00] Speaker 01:
This is the statute relied upon the parties at the trial level and in this court.

[00:15:07] Speaker 01:
It's 18-4414.

[00:15:08] Speaker 01:
It's a statute titled evidence of value.

[00:15:13] Speaker 01:
And it's the statute that's used to determine the value of stolen property.

[00:15:19] Speaker 01:
The first provision of that statute is about retail sales.

[00:15:23] Speaker 01:
The second provision of that statute, subsection two,

[00:15:26] Speaker 01:
deals with sales in general.

[00:15:28] Speaker 00:
What if the offers aren't reasonable?

[00:15:30] Speaker 00:
What if it is, as counsel says, you know, highly inflated values, what the owner would just love to get, but doesn't expect to get off Facebook Marketplace, for instance?

[00:15:42] Speaker 00:
Your Honor, that would go to the weight.

[00:15:44] Speaker 00:
The statute, talk about that.

[00:15:46] Speaker 01:
The statute does not talk about that, but that would go to the weight of the evidence.

[00:15:51] Speaker 01:
And in this case, there were four Facebook Marketplace posts.

[00:15:56] Speaker 01:
They're summarized in a chart fashion on page 18 of the answer brief.

[00:16:01] Speaker 01:
And you can see they're all in a similar ballpark.

[00:16:04] Speaker 01:
Even if you discounted them by 30%, you would still get to the $2,000 threshold at issue in this case.

[00:16:15] Speaker 01:
Judge Moritz, you correctly noted that the Bennett case did deal with the situation where that was the only evidence.

[00:16:24] Speaker 01:
That's also a civil breach of contract case.

[00:16:27] Speaker 01:
The criminal statute post-8 spent it by four years.

[00:16:33] Speaker 01:
The Bennett case has never been relied upon in a case that we've been able to find in a criminal case in Colorado.

[00:16:41] Speaker 01:
The second piece of evidence is whether the car was in a good mechanical condition.

[00:16:45] Speaker 01:
And I do want to turn to Judge Murphy's question about what the record says about whether that good mechanical condition was or was not baked into the Kelly Blue Book value.

[00:17:00] Speaker 01:
I'll direct the court to volume one of the record, page 107.

[00:17:03] Speaker 01:
That's the actual report that discusses how the Kelly Blue Book valuation was generated.

[00:17:11] Speaker 01:
That explains that the officer learned that the vehicle had 160,000 miles on it and that it was in good mechanical condition.

[00:17:23] Speaker 01:
The next sentence is where the factual disagreement lies between the parties that was highlighted in the defendant's reply brief.

[00:17:31] Speaker 01:
The next sentence says, based on this information, that's the part of the sentence seized on by defense, the vehicle was entered into Kelley Blue Book with

[00:17:42] Speaker 01:
the vehicle's specific VIN number and mileage.

[00:17:46] Speaker 01:
And that's the end of the sentence.

[00:17:49] Speaker 01:
It is certainly a fair reading to believe that that was what was entered, what he said was entered, the VIN number and the mileage and not the condition.

[00:17:59] Speaker 01:
It's also a reasonable good faith argument what defense counsel is making.

[00:18:05] Speaker 01:
But the record certainly supports the fair reading that it was not included.

[00:18:10] Speaker 01:
And because the blue book does explain that where a particular vehicle falls along the range that's given depends on a variety of factors, including the actual vehicle's condition and local market factors, it's certainly reasonable to pick a value at least $61 over the middle of the range based on the uncontroverted evidence that the vehicle was in good mechanical condition.

[00:18:40] Speaker 03:
problem I'm having is, and mind you, we all respect the role of the trial judge, and I've been there for a decade.

[00:18:58] Speaker 03:
But the court had to put these, I just can't get these pictures out of my mind to look at this vehicle and say,

[00:19:09] Speaker 03:
That thing is worth more than the midpoint of the Kelly Blue Book.

[00:19:17] Speaker 03:
And it bothers me that I'm even asking the question, because I'm not a fact-finder.

[00:19:22] Speaker 03:
We have to respect that.

[00:19:24] Speaker 03:
But I'm just having trouble dealing with it.

[00:19:27] Speaker 03:
And what it does is it makes me then focus on the other evidence.

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And the other evidence.

[00:19:41] Speaker 03:
is at least problematic.

[00:19:44] Speaker 03:
So help me.

[00:19:46] Speaker 01:
So Your Honor, this is a 1995 Honda Civic, right?

[00:19:50] Speaker 01:
So the value of a 1995 Honda Civic is whether it drives from one place to another.

[00:19:58] Speaker 01:
We have comparative standards.

[00:20:00] Speaker 01:
We have to rely on comparative standards, right?

[00:20:02] Speaker 01:
The law doesn't require you to sell this exact car.

[00:20:05] Speaker 01:
And we have the four comparative standards that are for sale.

[00:20:11] Speaker 01:
We have the comparative standard of the exact, sorry, of a vehicle, a similar vehicle, a vehicle that's one year newer, that was stolen the month before.

[00:20:21] Speaker 03:
But we have no mileage on that.

[00:20:23] Speaker 01:
We have no mileage.

[00:20:24] Speaker 01:
Agreed.

[00:20:24] Speaker 03:
We don't know what the condition was looking at it.

[00:20:28] Speaker 01:
That's correct.

[00:20:29] Speaker 01:
We know only that it's missing a muffler part.

[00:20:32] Speaker 03:
Right.

[00:20:33] Speaker 03:
And the owner's friend, boyfriend, husband?

[00:20:39] Speaker 03:
Husband.

[00:20:44] Speaker 03:
I'm not sure if he said it's worth this, its value is, or that I think it's $6,000.

[00:20:51] Speaker 01:
Correct.

[00:20:53] Speaker 01:
Your Honor.

[00:20:55] Speaker 03:
I'm not sure that helps me.

[00:20:56] Speaker 01:
Well, the judge went $61 over the midpoint.

[00:21:00] Speaker 01:
And in a clear error standard, this court looks at either there was no evidence, that's certainly not the case.

[00:21:07] Speaker 01:
We have three categories of properly considered evidence.

[00:21:09] Speaker 01:
You can argue about the weight of the evidence, but there were three categories of evidence properly legally considered.

[00:21:16] Speaker 01:
So that does not meet the no evidence test.

[00:21:19] Speaker 01:
The second prong of the clear error is that if you're left with a definite and firm conviction that a mistake was made,

[00:21:26] Speaker 01:
My argument to you is that these three different categories of evidence do support the court's finding.

[00:21:35] Speaker 01:
And there's certainly not grounds to decide that you're definitely and firmly convinced that a mistake is made.

[00:21:43] Speaker 01:
I believe the trial court made the correct decision and that the three categories of evidence support the finding.

[00:21:53] Speaker 03:
Three Facebook listings?

[00:21:55] Speaker 01:
Yes, there are four, yes.

[00:21:57] Speaker 03:
Four?

[00:21:57] Speaker 03:
Was there mileage on any or all of them?

[00:21:59] Speaker 01:
Yes, on all of them, Your Honor.

[00:22:00] Speaker 03:
Was condition stated on any or all of them?

[00:22:04] Speaker 01:
I don't believe so, Your Honor.

[00:22:06] Speaker 03:
Pardon?

[00:22:06] Speaker 01:
I don't believe so.

[00:22:08] Speaker 03:
So they just gave the mileage and the make model and year.

[00:22:17] Speaker 01:
I believe that's right.

[00:22:18] Speaker 01:
The chart on page 18 of the government's answer brief

[00:22:22] Speaker 01:
summarizes the year, the make, the model, the mileage, and the list price.

[00:22:30] Speaker 01:
I'm looking at one of the actual Facebook marketplaces.

[00:22:34] Speaker 01:
Let me ask you this.

[00:22:36] Speaker 03:
What's your view on what Bennett says and whether or not it's applicable?

[00:22:44] Speaker 01:
Bennett says that in a breach of contract case for real estate,

[00:22:50] Speaker 01:
When the only evidence is offers of sale, that does not meet the burden for damages.

[00:22:58] Speaker 01:
But it is not applicable because there is a more specific Colorado criminal statute that addresses this precise issue that was enacted four years after Bennett.

[00:23:09] Speaker 03:
And it says?

[00:23:10] Speaker 01:
It says that the court may consider comparatives.

[00:23:16] Speaker 01:
Well, let me give you the exact language.

[00:23:20] Speaker 01:
In looking at a sales price for stolen property, the court can look at similar property, and that includes consideration of, quote, tags, signs, shelf tags, and notices tending to indicate the price of the thing involved.

[00:23:35] Speaker 01:
In other words, offers.

[00:23:36] Speaker 01:
It was enacted in 1988 before the... It's clear it was talking about offers.

[00:23:41] Speaker 01:
Yes, I agree.

[00:23:42] Speaker 03:
I believe it's clear it's talking about offers.

[00:23:43] Speaker 03:
When it was talking about

[00:23:48] Speaker 03:
the case, the precise case before Bennett, they said when offers are the, did it say the only evidence?

[00:24:00] Speaker 01:
I know in the case, I know in the Bennett case offers were the only evidence.

[00:24:03] Speaker 03:
The only evidence, okay.

[00:24:04] Speaker 03:
Yes, I do know that.

[00:24:05] Speaker 03:
That's all.

[00:24:06] Speaker 01:
Okay.

[00:24:11] Speaker 01:
I do want to touch briefly on this $6,000

[00:24:14] Speaker 01:
value of the similar car stolen the month before.

[00:24:19] Speaker 01:
And just note that that value was not controverted in the record in any place.

[00:24:27] Speaker 03:
Well, there's reason why it wasn't controverted, isn't it?

[00:24:29] Speaker 03:
Because it was not an issue.

[00:24:31] Speaker 01:
It was an issue.

[00:24:32] Speaker 01:
The government did cite that car in its brief to the trial court in discussion of the value of this car that's at stake today.

[00:24:41] Speaker 01:
it did refer to the court to the other party.

[00:24:43] Speaker 03:
But it was not an issue in the underlying sentencing of the case.

[00:24:50] Speaker 03:
The defendant's position was, I was a mere passenger.

[00:24:55] Speaker 03:
I didn't steal it.

[00:24:57] Speaker 03:
And that was the issue, correct?

[00:24:59] Speaker 01:
Correct.

[00:25:00] Speaker 01:
Correct.

[00:25:00] Speaker 01:
That is correct.

[00:25:02] Speaker 01:
And then in the portion of the disagreement between the parties about the card before this court, the 1995 Civic,

[00:25:09] Speaker 01:
The government did cite to the trial judge as a comparative standard the 1996 Honda stolen a month before.

[00:25:16] Speaker 01:
In the reply brief filed by the defense in the trial court stage, they did not address that argument.

[00:25:24] Speaker 03:
Well, there wasn't anything to address.

[00:25:26] Speaker 03:
They didn't know anything about it, right?

[00:25:27] Speaker 03:
Because it wasn't an issue.

[00:25:29] Speaker 01:
They did not say, court, please do not place much weight on that car because we don't know much about it.

[00:25:34] Speaker 01:
They did not address it in any way.

[00:25:38] Speaker 01:
They have never offered an alternative value for that car, although as recently as the reply brief to this court, they did admit that that car was worth at least $2,000.

[00:25:50] Speaker 01:
Unless the court has any additional questions.

[00:25:55] Speaker 01:
I will close by asking this court to decide that it was not clear error for the trial court to make the factual determination that the Honda Civic was worth at least $2,000 and accordingly affirm the sentence of Mr. Lohr.

[00:26:10] Speaker 01:
Thank you very much.

[00:26:11] Speaker 00:
Thank you, counsel.

[00:26:16] Speaker 00:
Any rebuttal?

[00:26:26] Speaker 02:
A couple of things.

[00:26:28] Speaker 02:
The government says in this statute, well, the statute says that you can look at price tags to figure an item's value.

[00:26:37] Speaker 02:
But price tags are totally different from Facebook posts.

[00:26:41] Speaker 02:
It's a matter of common sense that the price tag of the store reasonably corresponds to what somebody is probably going to pay for that item.

[00:26:51] Speaker 02:
A price could only even be logically relevant if we have reason to believe that it reasonably corresponds to what a buyer would ultimately pay.

[00:27:01] Speaker 02:
Here, we know that these Facebook posts do not reasonably correspond to what somebody would actually pay.

[00:27:08] Speaker 02:
Even the government admits that the Blue Book range is accurate, and these prices are way above that.

[00:27:14] Speaker 02:
What are the prices for?

[00:27:17] Speaker 02:
They range from $3,200

[00:27:20] Speaker 02:
to $4,500 for cars that they say are similar.

[00:27:24] Speaker 02:
All of those are way above the blue book range that the government admits is accurate.

[00:27:30] Speaker 04:
Refresh me.

[00:27:30] Speaker 04:
What's the cap?

[00:27:32] Speaker 04:
$2,600.

[00:27:33] Speaker 02:
$2,689.

[00:27:38] Speaker 02:
So all these are way above that.

[00:27:40] Speaker 02:
So the government's position basically is, well, these are

[00:27:45] Speaker 02:
75% above the top of the Blue Book range, but surely they wouldn't be 100% above.

[00:27:52] Speaker 02:
Well, why?

[00:27:53] Speaker 02:
We don't know what the market norms on Facebook Marketplace is.

[00:27:57] Speaker 02:
The government didn't prove that.

[00:27:59] Speaker 02:
These people don't have incentives or expertise to list a realistic asking price.

[00:28:05] Speaker 04:
Where was it where they were talking about marked price?

[00:28:10] Speaker 04:
Where did you get that?

[00:28:12] Speaker 04:
Say again, the marked price?

[00:28:14] Speaker 04:
Yeah, the retail price.

[00:28:16] Speaker 02:
Oh, well, the government is citing a statute that says in determining value, you can consider a retail price tag.

[00:28:26] Speaker 02:
Now, if anything, I think, expressio unius, it means you can't consider other asking prices.

[00:28:31] Speaker 00:
It also says notices.

[00:28:33] Speaker 00:
I'm not sure what that means, but could that notices?

[00:28:36] Speaker 00:
The statute uses a term you can consider notices.

[00:28:39] Speaker 02:
Yeah, I'm not sure what that means either, but it sounds like more formal crisis.

[00:28:44] Speaker 00:
So your position is that TAGS doesn't really include what's happening on social media.

[00:28:51] Speaker 02:
Exactly, exactly.

[00:28:53] Speaker 00:
And the statute doesn't address social media separately.

[00:28:56] Speaker 02:
Right.

[00:28:57] Speaker 02:
That's right.

[00:28:58] Speaker 02:
That's right.

[00:28:59] Speaker 00:
So I would ask for you to... Did you make that argument about the statute?

[00:29:04] Speaker 02:
The government raised it for the first time.

[00:29:06] Speaker 00:
Okay.

[00:29:06] Speaker 02:
So I'm just... Yeah.

[00:29:08] Speaker 02:
The government didn't argue this before.

[00:29:09] Speaker 02:
I'm just responding to it.

[00:29:10] Speaker 00:
It didn't seem familiar to me.

[00:29:11] Speaker 00:
Yeah.

[00:29:12] Speaker 02:
Yeah.

[00:29:12] Speaker 02:
It's just something that they raised for the first time here.

[00:29:14] Speaker 00:
All right.

[00:29:15] Speaker 00:
Thanks.

[00:29:15] Speaker 02:
Thank you.

[00:29:19] Speaker 00:
All right, well thanks to you both for these very helpful arguments.

[00:29:23] Speaker 00:
The case will be submitted, counsel are excused, and the court will be in recess until tomorrow morning at 9 o'clock.