[00:00:00] Speaker 04:
United States versus Louis Jackson, number 237072.

[00:00:05] Speaker 04:
Ms.

[00:00:08] Speaker 04:
Baker.

[00:00:09] Speaker 00:
Thank you, Your Honor.

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And I believe we're actually in the afternoon.

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If it pleased the court.

[00:00:15] Speaker 00:
I do appreciate you.

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Time flies.

[00:00:17] Speaker 00:
It does when you're having fun.

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So the bulk of the evidence presented in this trial focused around the events that happened on April 11th.

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The jury ultimately found Mr. Louis Jackson not guilty of those charges.

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And in those charges were included charges of possession of drugs, guns, and ammunition.

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And the SUV that was involved with that April 11 event included indicia that Mr. Louis Jackson was associated with that SUV, including his identification.

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However, the jury again decided that he was not culpable of those offenses.

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Do those acquittals limit the evidence that can be considered?

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I believe that it is reasonable to assume that if the jury didn't believe he was culpable of that offense, that some of the

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issues or some of the things that the government pointed to as being proof of his ownership of the ammunition on the 28th, it's unreasonable to think that the jury saw that as probative regarding the ammunition on the 28th.

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So on the 28th, the cops went to the home of two women,

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The police believe that he associated with them.

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This was at least the third place that they had gone to serve a search warrant, not a search warrant, an arrest warrant for Mr. Louis Jackson from those events.

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When they arrived, they talked to one of the residents.

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She went back inside.

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She came out.

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Well, after she came back out to talk to the police officers, he was sited out in the back of the house, and he came around to the front of the house, met with the police, was arrested without incident.

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He didn't resist.

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You know, there was no dispute to that.

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And he was taken into custody.

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The women who lived in that house consented to a search.

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They particularly searched the room of a Miss Kendra Millott.

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Now later in custody, Mr. Louis Jackson was talking to, I believe it was Officer Good.

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And Officer Good begins this conversation that's in the video that was provided and the audio, begins talking about the fact that he's reassuring Mr. Louis Jackson that Kendra, Ms.

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Villott, she's going, she's being sent to another place because she's got some other, she's got her own legal issues to sort out.

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But so far, she hasn't caught anything fresh.

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Mr. Louie Jackson immediately responds to that by claiming ownership of marijuana in Ms.

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Malott's car.

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There's no indication that was even on the premises at the time that he was taken into custody.

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But he's jumping in there and trying to take one for Ms.

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Malott.

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He's concerned about her.

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They also have a conversation.

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And this is the only indication of a relationship between him and Miss Mallotte.

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The officers don't refer to the relationship between the two of them.

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They don't seem to be aware of that until they begin the search.

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And there's no other discussion about it in the rest of the record.

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When Officer Good

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After he mirandizes Mr. Louis Jackson, he proceeds to talk to him about some other things.

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But he also then says, and the ammo.

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Mr. Louis Jackson's response is not convincing that he knew ammo's ammunition was in the home.

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He and Mr. Officer Good's response is consistent with that.

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He's like, yeah, this ammo and what he calls it

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This, I won't swear before the court, but this stuff, just various stuff.

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And Mr. Louis Jackson, again, in the context of protecting Ms.

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Malott says, yeah, mine.

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And that's it.

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They don't return to that ammunition in that conversation.

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Well, it's not in the context of protecting Ms.

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Malott.

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That's your theory.

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He didn't say, hey, I'm trying to protect my girlfriend here, so yeah, it's mine.

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We have to infer that.

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Let me ask you a couple of questions.

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So just see what's disputed and not disputed.

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Some of this may very well be.

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Does anyone dispute that she is his girlfriend?

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No.

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OK.

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And that no one disputes that the house where the ammo was found was her house?

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No.

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OK.

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And does anyone dispute that he stayed overnight at that house?

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I don't think there was evidence to that effect.

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OK.

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Is there any dispute that the ammo was found in Ms.

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Malott's room?

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No.

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OK.

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No dispute that there was men's clothing found in the house?

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I believe I would dispute that it was proven that was men's clothing, especially since... Let me ask it.

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Is there any dispute that there was clothing consistent with being men's clothing found in the house?

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I would say based on the way young women dress today and not having seen how she dresses, I don't know that I would

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You know, hazard a guess without more detail.

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Any dispute that there were men's toiletries found in the house?

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The officer did not make an affirmative assent.

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He said, well, maybe it was the gist of his response when defense counsel cross-examined.

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Any dispute that the defendant was leaving the house as the police were knocking on the front door?

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After they had spoken to Ms.

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Allen and she had gone back inside, he was spotted outside and he came around to the front where the police were.

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Okay.

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And he wasn't fully clothed when he came out?

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He was not wearing a shirt.

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Correct.

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Okay.

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And then ultimately they, whether we think he was protecting Ms.

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Mallotte or not, he did confess that that was his ammo.

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He did say mine.

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Yes.

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Okay.

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So that turns us to the fact that we have a admission.

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So the admission, I assert, is not corroborated.

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Now, the government has conceded that his presence in that home, either as an overnight guest or simply there in the instant, is not enough to establish that he had constructive possession of that ammunition.

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And I believe if you look at the photographs and the video,

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Well, let me ask you this.

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If he had constructive possession of the ammunition, we don't care about his confession, do we?

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If that was sufficient.

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Okay.

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So, cause it seems to me that this all sort of is all sort of symbiotic.

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And it makes me wonder if the confession is not backed up by the things we just talked about that may or may not be disputed.

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And that the two of those things together, maybe that's enough.

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I think if they had produced sufficient evidence that he had been in constructive possession,

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of that apart from the admission.

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Yeah, I mean, we wouldn't be here.

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But I don't believe that he did.

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But doesn't the admission say, let's assume that those things we talked about get you close but not over the line or gets the government close but not over the line to proving possession, constructive possession.

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Doesn't the confession work with those things to push it over the line?

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Well, but I mean, isn't it evidence that he possessed it?

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I think it would be evidence of perhaps knowledge and access.

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However, I think if you really look at the admission, he says mine.

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And as the Henderson case informs us, possession and ownership are very distinct things under the law.

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He admitted to ownership.

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He's in trouble with both of those things, isn't he?

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If he doesn't show the requisite intent to exercise control of it, which I think is part of the problem with them showing constructive possession in this case, is that this was ammunition.

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There were no firearms found in the home.

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The ammunition in the hygiene kit, which is probably the closest thing I think you could say was

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masculine without further, and again, I think there's questionable there.

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And the police, you know, again, the policeman acknowledges like, well, I think it was a man's, it looks like a man's kit.

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I have used a man's mess kit, but that's beside the point.

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But that stuff was covered, they mentioned the fact that that was covered in stuff.

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It's not even in a state that you could put it into a gun to use.

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It is ammunition, but constructive possession needs proof of intent.

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Can I ask you a question?

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Of course.

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You make a really good point, the distinction between possession and ownership.

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Yes.

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But isn't ownership, by definition,

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knowledge of the contraband and an intent to exercise dominion over it.

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If I own a Volvo, then by definition, I constructively possess it, right?

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I have knowledge of it.

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You have the power to, but I don't know that it necessarily always shows intent.

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For example, if you own something and you entrust it to somebody else,

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knowing that they'll do whatever they want without any intent to control how they use that, I think you could argue that it is not dispositive.

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I am arguing that's not dispositive.

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I've got a question about how to view constructive possession.

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So on whether there was constructive possession of the ammunition found

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on April 28.

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Yes.

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May we consider the evidence found in the Yukon on April 11?

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I think if he had been convicted, if the jury had found he was guilty of the April 11th offense, I think it would be reasonable to believe that the jury did see that as evidence that he had the intent or had

[00:11:32] Speaker 04:
Well, apart from what happened on the April 11 charges, there was his tribal membership card, his gym membership card.

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Why doesn't that show that there were items found in the Yukon that did belong to him?

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I mean, those belonged to him, didn't they?

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The jury found that they did not.

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What?

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His own tribal membership card doesn't belong to him?

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That is what the jury found.

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Was that really the issue that the jury was asked to find?

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He was charged with possession of ammunition and firearms in the SUV on April 1.

[00:12:09] Speaker 04:
I understand that, but that isn't the same thing as finding that that wasn't his gym membership card.

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Oh, no, I'm sorry.

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I think there was no dispute for those points.

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I mean, his card was there and his tribal membership card was there.

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So why isn't that relevant to constructed possession

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on April 28th?

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Well, again, we're getting to the sufficiency of the evidence to convict him.

[00:12:31] Speaker 04:
Well, isn't that what this case ultimately is, is a sufficiency of the evidence challenge?

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It is.

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But I would argue that the jury did not consider that as relevant when they decided to convict him.

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They convicted him solely based on the admission.

[00:12:49] Speaker 04:
Well, how do we know that?

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The jury was in the jury room and only the jury was in the jury room.

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So how do we know that?

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How do we know that?

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Because they acquitted him of the offenses on April 11th.

[00:13:04] Speaker 04:
But is the evidence that relates to April 11th irrelevant to the April 28th

[00:13:12] Speaker 00:
No, I don't believe it's irrelevant, but I also believe that the jury obviously did not feel that it was proof of ownership on or possession on the 28th.

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And I think that's clear by the acquittal.

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And I would like to reserve the remainder of my time, unless you have further questions.

[00:13:32] Speaker 00:
That's fine.

[00:13:32] Speaker 00:
Thank you.

[00:13:33] Speaker 04:
Thank you.

[00:13:38] Speaker 04:
Counsel, I excused you earlier, so thank you for coming back.

[00:13:45] Speaker 03:
We were going to issue a bench warrant.

[00:13:47] Speaker 01:
My flight's not till 5 anyway, so I had nowhere to go.

[00:13:51] Speaker 01:
Well, may it please the court, I'm Luke Rizzo.

[00:13:54] Speaker 01:
I'm an AUSA from the Eastern District of Oklahoma.

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The only issue here is whether sufficient evidence was presented to the jury for them to convict the defendant of being a felon in possession of ammunition.

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The only element of the crime that is in question on this appeal is possession, defendant's possession of said ammunition.

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So a challenge to the sufficiency of the evidence usually requires the court to determine whether any rational trial or fact could have found the defendant guilty beyond a reasonable doubt.

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All the evidence would be viewed in light most favorable to the government's case.

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There's not much leeway on review.

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In this case in particular, due to the failure to raise the issue at trial, it's really more of a plain error review.

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That's the government's position, which would mean there would have to be a particularly appalling mistake or something, an error so obvious that it would almost demand a reversal.

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At trial, the government had to prove the defendant not only possessed the ammunition.

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So clearly, this was about constructive possession.

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The government proved that the defendant was in constructive possession of the ammunition.

[00:15:01] Speaker 01:
By showing the jury how the ammunition was discovered during a search of the home, which belonged to the defendant's girlfriend, rather, she lived in there.

[00:15:09] Speaker 01:
She shared the house with another woman.

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The room that was Kendra's, the girlfriend's, ammunition was found in there.

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Shortly after arriving, the defendant was seen running out of the house.

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He was apprehended right outside the house, shirtless.

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There was men's clothing in the room.

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There was also ammunition found in a men's hygiene kit.

[00:15:29] Speaker 02:
Can I ask you a question about him running out of the house or there seems to be some dispute factually, whether he just might have been outside and walked around the house or whether the way you say it, it sounds more like an attempt to evade the police because he knew they were out front.

[00:15:53] Speaker 01:
Well, what's on the record, Your Honor, I believe it's trial transcript.

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I think it's on page 55.

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One of the witnesses said, he hears a report on the radio.

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Mind you, the police are sort of surrounding the home.

[00:16:05] Speaker 01:
One of the witnesses says, he hears a report on the radio.

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He's running out the house.

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The guy's running out the house.

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So that's on the record.

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That's how the government presents that fact.

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And then, indeed, they find him right outside the house in a state of undress, effectively,

[00:16:23] Speaker 01:
Whether he's evading police or not, certainly, Your Honor, that probably would be something that's more of an inference.

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But I think the factual record supports that finding.

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Moreover, the jury's verdict itself.

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It should be noted there's a lot of talk or a lot of argument about his admission, his confession to police.

[00:16:46] Speaker 01:
But I think the court effectively parsed that out.

[00:16:50] Speaker 01:
I mean, it is some chaotic.

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to divide and conquer, which I think is the defendant's strategy here.

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If we just isolate the confession, it's not corroborated by anything.

[00:17:02] Speaker 01:
And if we just isolate the arrest, he's not technically in possession of the ammunition.

[00:17:07] Speaker 01:
But naturally, the jury heard of both events.

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They heard about the confession.

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They heard about what was found in the home.

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They deliberated on both.

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And they ended up finding the defendant guilty on count six.

[00:17:24] Speaker 01:
When you, you know, I mean, there's also some perhaps ambiguities or some argument, you know, whether it's men's clothing or not.

[00:17:31] Speaker 01:
I mean, also it's important to realize the jury likely inferred it was a defendant's clothing.

[00:17:37] Speaker 01:
How did they do that?

[00:17:39] Speaker 01:
Based on the fact that, you know, he told police he was in his girlfriend's house and he's right outside.

[00:17:46] Speaker 01:
I'm sure the jury deliberated on that.

[00:17:50] Speaker 01:
And, of course, most telling, I mean, this case is all about the defendant admitting that the ammunition belonged to him.

[00:17:57] Speaker 01:
Now, why does he have a bunch of ammunition around?

[00:17:59] Speaker 01:
Clearly, to use it.

[00:18:01] Speaker 01:
And I think that is also, you know, the jury was instructed on what constructive possession is.

[00:18:07] Speaker 01:
You know, they were told it's, you know, about the intent to use it, having the knowledge and power to use it.

[00:18:13] Speaker 01:
And the jury found him guilty of that.

[00:18:14] Speaker 01:
Notably, constructive possession can be inferred.

[00:18:17] Speaker 01:
And that's what the jury likely did here.

[00:18:19] Speaker 03:
If Kendra had been a male, would the outcome be different on corroboration?

[00:18:25] Speaker 03:
Are you saying if the, so if he was at a... The ammunition in the male hygiene kit, I think the government is not reliant exclusively on it, by any means.

[00:18:36] Speaker 03:
But that certainly, I think, could fairly be an indication that the ammunition was owned or possessed by

[00:18:47] Speaker 03:
the male occupant of that room as opposed to the female occupant of the room, if there were two males, it would be more likely that it would be really speculative on which of those two males have the hygiene kit.

[00:19:04] Speaker 01:
Well, I think that's an interesting hypothetical, Your Honor, because that just points to how valuable or how paramount the confession is.

[00:19:13] Speaker 03:
Well, but the whole point is we have

[00:19:15] Speaker 03:
I mean, the confession is what it is.

[00:19:18] Speaker 03:
We have to have corroboration.

[00:19:22] Speaker 01:
Certainly, Your Honor.

[00:19:22] Speaker 01:
And if the defendant, if he's being interviewed by police and they're saying, hey, I was in my buddy's house or we searched your buddy's house, we know you were in there a minute ago and we found a bunch of ammunition in there, whose was that?

[00:19:36] Speaker 01:
If he says, that's mine, not my buddy's, I think we're in the same place.

[00:19:40] Speaker 01:
I think he still gets convicted.

[00:19:42] Speaker 01:
The jury still convicts him.

[00:19:43] Speaker 01:
I mean, I think that's how important it is.

[00:19:45] Speaker 01:
I mean, when we talk about... You think it's weaker than... I think it's just as strong.

[00:19:50] Speaker 01:
I think it's whether a male or female, I don't particularly... The government's position is it probably wouldn't matter that much.

[00:19:57] Speaker 01:
I mean, notably the notion that the confession is uncorroborated, the government doesn't just

[00:20:04] Speaker 01:
Can't accept that.

[00:20:05] Speaker 02:
What is the evidence in the record that he stayed the night at that house?

[00:20:11] Speaker 01:
Well, there's no evidence on the record he stayed the night at the house, Your Honor.

[00:20:15] Speaker 01:
The evidence would suggest he was in that house when the police were knocking on the door and he decided to leave the house.

[00:20:24] Speaker 01:
That's what's on the record.

[00:20:26] Speaker 01:
Whether or not he ever stayed at that location overnight,

[00:20:31] Speaker 01:
Again, this is what the jury was doing, deliberating, probably assessing their relationship.

[00:20:37] Speaker 02:
What was the evidence as to why the police decided to look for him there?

[00:20:43] Speaker 01:
Well, that had to do with the five counts, the five counts of acquittal.

[00:20:52] Speaker 01:
So what happens after the police, that first incident earlier that month,

[00:20:58] Speaker 01:
They believe they know who was driving the vehicle, obviously, and they're on a hunt for him.

[00:21:03] Speaker 01:
They're basically searching, and they effectively get information of an arrest warrant for him at that house.

[00:21:11] Speaker 01:
And then when they do end up finding him there, as we know.

[00:21:15] Speaker 01:
So when he's arrested, obviously, when they arrest him outside the house, they're not arresting him for the ammunition in the room.

[00:21:23] Speaker 01:
They're arresting him for the high-speed chase that he was suspected of.

[00:21:28] Speaker 01:
was ultimately acquitted of.

[00:21:31] Speaker 01:
I think a lot of it has to do, or a lot of this appeal has to do with there's a significant amount of the evidence linking him to the ammunition was circumstantial.

[00:21:45] Speaker 01:
But as the court is well aware, that's not that vital of a distinction.

[00:21:49] Speaker 01:
An individual could be convicted based solely on circumstantial evidence.

[00:21:55] Speaker 01:
The interview was corroborated.

[00:21:57] Speaker 01:
The government's position is the existence of the ammunition itself corroborates the confession enough.

[00:22:05] Speaker 04:
So what should we make of the acquittals on the April 11 charges?

[00:22:13] Speaker 04:
Does that factor in to anything in terms of our assessment of the sufficiency of the evidence?

[00:22:22] Speaker 01:
The government's position is that it doesn't factor in.

[00:22:25] Speaker 01:
I think the only way, well, the way the government likes to present it is it shows how well the jury deliberated.

[00:22:35] Speaker 01:
These were two different actions or two different events that they were presented with, and they acquitted on the first five counts.

[00:22:44] Speaker 01:
That's all about the first event.

[00:22:45] Speaker 01:
They didn't believe the government proved that beyond a reasonable doubt.

[00:22:49] Speaker 01:
And then on the sixth count, which is

[00:22:51] Speaker 01:
what's detailed in the facts in this appeal, they found the defendant guilty.

[00:22:56] Speaker 01:
The government would suggest that it shows the jury was deliberating effectively.

[00:23:00] Speaker 01:
And what to make of it?

[00:23:04] Speaker 01:
I mean, factually, they're just two different situations.

[00:23:07] Speaker 01:
They involved, I think, most critically, two different law enforcement officers that testified at trial about each event.

[00:23:15] Speaker 01:
And the jury came up with their decision.

[00:23:18] Speaker 01:
Certainly, the government doesn't question or challenge

[00:23:22] Speaker 01:
the jury's decision on those counts anyway.

[00:23:25] Speaker 01:
So in sum, the evidence in this case, it created a more reasonable inference of access, control, and intent.

[00:23:32] Speaker 01:
The defendant removed any doubt by plainly stating the ammunition belonged to him.

[00:23:36] Speaker 01:
Based on the applicable law and the evidence here, a reasonable jury could have found defendant guilty beyond a reasonable doubt of constructively possessing the ammunition.

[00:23:46] Speaker 01:
And based on that, the government asks,

[00:23:48] Speaker 01:
the court to affirm the conviction.

[00:23:50] Speaker 01:
And the court has any further questions?

[00:23:53] Speaker 01:
Well, I'll see you.

[00:23:54] Speaker 01:
Thank you, counsel.

[00:23:55] Speaker 01:
Thank you, Your Honor.

[00:23:56] Speaker 04:
I think we have some rebuttal time.

[00:24:01] Speaker 00:
And I'll brief your honors.

[00:24:02] Speaker 00:
What I'd like to return to, and the government has conceded that nothing regarding April 11th was relevant to what happened on April 28th.

[00:24:13] Speaker 00:
Therefore, I think it's created this problem with intent to use this ammunition based solely on the information that the jury had apart from the admission.

[00:24:26] Speaker 00:
then I'd return to the fact that corroboration, the concept of the need for corroboration of an admission is actually to restrict the jury in convicting somebody based on an uncorroborated admission.

[00:24:46] Speaker 00:
It is true that the corroboration of ownership, which is all he admitted is ownership, which doesn't encapsulate elements of constructive possession.

[00:24:58] Speaker 00:
But that wasn't corroborated by the evidence of his being in this house at some time, maybe even just that day when they came to arrest him.

[00:25:09] Speaker 00:
And it also doesn't, without corroborating that,

[00:25:15] Speaker 00:
facet of the actual admission, the government's evidence pointed to evidence to corroborate the trustworthiness of this statement.

[00:25:28] Speaker 00:
That's lacking as well, pointing to the fact that the ammunition was found in his girlfriend's room.

[00:25:34] Speaker 00:
which what the jury saw and what is in the record is that his girlfriend was in possible legal jeopardy.

[00:25:42] Speaker 00:
That in itself, that actually is indicative of the untrustworthiness of this statement.

[00:25:50] Speaker 00:
And with that, I thank you very much for your time.

[00:25:53] Speaker 04:
Thank you, counsel.

[00:25:55] Speaker 04:
The case will be submitted.

[00:25:58] Speaker 04:
Counselor excused, and we will be in