[00:00:00] Speaker 02:
First case up is United States versus NAS.

[00:00:04] Speaker 02:
It is DACA 23-7051.

[00:00:08] Speaker 02:
Mr. Pincus, when you're ready.

[00:00:27] Speaker 04:
May it please the court, my name is Howard Pincus from the Federal Public Defender and I represent Justin Ness.

[00:00:34] Speaker 04:
Mr. Ness's jury sent a note showing it was having difficulties with the reach of the on or about language for the charged offense.

[00:00:41] Speaker 04:
The district court did nothing to address the jury's confusion.

[00:00:44] Speaker 04:
This was plainly erroneous under Bolandbach versus United States and this court should grant Mr. Ness a new trial.

[00:00:53] Speaker 04:
Mr. Ness was accused of possessing a Creedmoor rifle and ammunition as a felon on or about September 8th of 2021.

[00:01:02] Speaker 04:
The evidence was disputed as to whether he possessed the items on that day.

[00:01:07] Speaker 04:
But there was no dispute that he possessed the Creedmoor rifle and the ammunition in it in December 2020 or earlier.

[00:01:14] Speaker 04:
A video posted to Facebook in that month showed him firing the gun.

[00:01:20] Speaker 02:
Do we know it's the same gun?

[00:01:21] Speaker 02:
In other words, in the indictment, there's a serial number.

[00:01:25] Speaker 04:
In the indictment, there is a serial number.

[00:01:27] Speaker 04:
But there was evidence at trial that this was his friend's gun.

[00:01:31] Speaker 04:
And his friend is the one who said he put the rifle that was charged in the indictment in Mr. Nessa's trailer.

[00:01:38] Speaker 04:
So I think it does close the circle and show that it is the same Creedmoor rifle.

[00:01:42] Speaker 02:
Could be two Creedmoor rifles, though.

[00:01:44] Speaker 02:
It's a possibility.

[00:01:45] Speaker 04:
Well, the testimony was that he was firing back

[00:01:49] Speaker 04:
creedmoor rifle, his friend's creedmoor rifle.

[00:01:51] Speaker 04:
So there really doesn't seem to have been a dispute about that at trial.

[00:01:55] Speaker 04:
And in fact, the government argued that there was actual possession of that rifle by pointing to, and the only proof of actual possession of a rifle was

[00:02:07] Speaker 04:
video posted to Facebook.

[00:02:09] Speaker 04:
So it really is clear in the record that we are talking about the same rifle.

[00:02:14] Speaker 01:
The theory at trial was my friend brought the gun over to my house and the ammo, dropped it off, left it there because he was going to California, didn't want to take it and leave it there, right?

[00:02:28] Speaker 01:
Correct.

[00:02:29] Speaker 01:
Also in evidence was the fact that the magazine, the ammo, the gun case and the gun were all located in different places.

[00:02:39] Speaker 04:
Different places than where Mr. Irwin said he had left.

[00:02:43] Speaker 01:
Right.

[00:02:43] Speaker 01:
Correct.

[00:02:44] Speaker 01:
Okay.

[00:02:44] Speaker 01:
So, I mean, that would give the jury the opportunity to look at this and disagree with the theory that he didn't possess it at the time, that his friend had just gratuitously left it there and he didn't know it was there or that he had not been there at the time.

[00:02:59] Speaker 04:
The jury could have found that sometime after Mr. Irwin, who testified that he left the items there, it wasn't just Mr. Ness's word, that Mr. Ness had been in the trailer, that he knew that the guns and ammo were there and they'd exercised control over it.

[00:03:15] Speaker 04:
Certainly could have found that.

[00:03:17] Speaker 04:
But Mr. Ness and Mr. Irwin agreed on the big picture, which was that Mr. Irwin left the items there.

[00:03:24] Speaker 04:
And the evidence wasn't so strong that the jury had to believe what Mr. Irwin said and not what Mr. Ness said.

[00:03:30] Speaker 04:
And in fact, the note shows that that wasn't the jury's view.

[00:03:36] Speaker 04:
If this had been the slam dunk that the prosecution said it was, the jury would have had no reason to ask for a timeline of the charged offense.

[00:03:44] Speaker 04:
It would have just looked to

[00:03:46] Speaker 04:
September 8th, 2021 when the search was done.

[00:03:49] Speaker 04:
That would have been enough if it were really a slam dunk.

[00:03:53] Speaker 01:
Was there an instruction that the district court tendered as to as or near?

[00:03:57] Speaker 04:
There was the stock 10-circ instruction on or about, and that says that the date has to be reasonably near the charge date.

[00:04:06] Speaker 04:
What the jury was asking for was to give content to an amorphous phrase, reasonably near.

[00:04:14] Speaker 04:
It was, if it was looking to anything other than September 8th, the only evidence on which it could have based finding a possession was the video showing and the undisputed evidence about firing that Creedmoor rifle with ammunition in it, obviously.

[00:04:33] Speaker 04:
in December of 2020 or earlier.

[00:04:36] Speaker 04:
It was posted to Facebook in December 2020, so we know that was the latest, but it could have been even earlier.

[00:04:41] Speaker 04:
In any event, that's at least eight and a half months before the charged date.

[00:04:47] Speaker 01:
Do any of our cases undermine that instruction's efficacy?

[00:04:52] Speaker 01:
In other words, do any of our cases suggest that that stock instruction is insufficient to instruct the jury on what they need to know to decide whether something's reasonably near?

[00:05:03] Speaker 04:
I don't know that any actually undermine and say that destruction is not sufficient.

[00:05:10] Speaker 04:
What this court has said and very clearly said is that honor about means is satisfied by proof within a few weeks of the charge date and that under special circumstances it could go back further.

[00:05:25] Speaker 04:
There's no real dispute here about that principle of law.

[00:05:29] Speaker 04:
The dispute here seems to turn on whether the note triggered the duty to instruct the jury further.

[00:05:38] Speaker 04:
We're not saying that on or about this court's pattern instruction on or about is defective.

[00:05:44] Speaker 04:
But in the context of this case, the jury was confused and wanted more guidance.

[00:05:50] Speaker 04:
And that is what the court has to do.

[00:05:52] Speaker 04:
It has to address

[00:05:55] Speaker 04:
the jury's confusion, and in the words of Bolandbach, cleared away with concrete accuracy.

[00:06:01] Speaker 01:
So as I look at it, we have two problems here.

[00:06:04] Speaker 01:
One of them is, normally what would happen is defense counsel would say, Judge, I think it needs to be cleared up.

[00:06:13] Speaker 01:
Let me propose something for you to send back to them.

[00:06:18] Speaker 01:
That would be a reasonable course of action, but that didn't happen.

[00:06:23] Speaker 01:
Did not happen.

[00:06:25] Speaker 01:
So then we have to decide whether it's plain error and we sort of have to hypothesize about what the district court might have done, right?

[00:06:38] Speaker 01:
I mean, what would you have proposed to the district court?

[00:06:42] Speaker 01:
Other than saying that the district court

[00:06:44] Speaker 01:
just failed by doing, basically, sending back saying, you have enough evidence, go ahead and decide it.

[00:06:51] Speaker 01:
I mean, what do you think the district court should have said?

[00:06:54] Speaker 04:
The district court should have followed this court's clear law and said, reasonably near means within a few weeks of the charge date, unless you find special circumstances.

[00:07:03] Speaker 01:
But that's not the law.

[00:07:04] Speaker 01:
I mean, the law is that can be reasonably near within a few weeks, or it can be some other interval

[00:07:15] Speaker 01:
depending on what the evidence is.

[00:07:17] Speaker 04:
And I was about to add that, yes.

[00:07:19] Speaker 04:
And it could say that there are some special situations.

[00:07:22] Speaker 04:
It could be further than that.

[00:07:24] Speaker 04:
There's nothing in this court's law that suggests eight and a half months would ever satisfy the honor about the reasonably near.

[00:07:36] Speaker 04:
And in fact, we cited two cases in our brief, one from the Seventh Circuit, Musgraves, and one from the Ninth Circuit.

[00:07:44] Speaker 04:
which says that many months earlier isn't on or about a charge date.

[00:07:52] Speaker 02:
Had the defendant conceded that point by not objecting to admission of the December and the April and the May evidence?

[00:07:59] Speaker 04:
No, that evidence could have been used as evidence to show knowledge, to support the evidence of possession

[00:08:11] Speaker 04:
on the charge date.

[00:08:12] Speaker 02:
But there wasn't a 404b motion, right?

[00:08:16] Speaker 04:
No, there wasn't a 404b motion.

[00:08:18] Speaker 04:
It wasn't other acts.

[00:08:19] Speaker 04:
The government's theory was this helped prove knowledge of possession on the charge date.

[00:08:26] Speaker 04:
And in fact, well, so the government's argument here is that what the jury was asking about was

[00:08:36] Speaker 04:
what could use that evidence for.

[00:08:38] Speaker 04:
But that evidence, the district court had told the jury, as district courts routinely tell juries, that evidence is admissible to be considered for anti-purpose unless you get a limiting instruction from me.

[00:08:51] Speaker 04:
There was no limiting instruction, so there could have been no confusion that the jury could consider that evidence for proof of possession on or about September 8.

[00:09:02] Speaker 04:
Where it gets confusing is where the government

[00:09:05] Speaker 04:
what the government argued in its summation, which is you have evidence of actual possession, direct physical control over the firearm from the photographs, as well as, but it says, but also dominion and control on the charged state.

[00:09:21] Speaker 04:
So the government, there was a suggestion in summation that the jury could have rested its verdict on what happened in December of 2020.

[00:09:29] Speaker 04:
And that's where the juries

[00:09:32] Speaker 04:
That is one explanation for why the jury asked the question that it did.

[00:09:36] Speaker 01:
What did defense counsel say in closing about the Facebook picture?

[00:09:42] Speaker 04:
The defense said, well, you have to focus.

[00:09:44] Speaker 04:
There's evidence of other statements, because there were statements about weapons and an interest in ammunition.

[00:09:53] Speaker 04:
And the defense tried to say, but you have to focus on September 8, not what happened before.

[00:10:00] Speaker 04:
But there was also argument from the government that you could look to actual possession and that would only have been in December of 2020.

[00:10:10] Speaker 04:
There was also, I mean apart from that in all of the posts, the only post that talks about possessing a gun is from June 1st of 2021 when Mr. Ness posted he has a particular scope on his

[00:10:30] Speaker 04:
of his Creedmoor rifle.

[00:10:34] Speaker 04:
But even that is more than three months before the charge date, and that was never a focus of the argument.

[00:10:42] Speaker 04:
The focus was more on the actual picture of Mr. Ness firing the gun on that in December.

[00:10:50] Speaker 02:
That's the firearm.

[00:10:51] Speaker 02:
There's also ammunition that's charged.

[00:10:53] Speaker 02:
There is.

[00:10:53] Speaker 02:
I think there's 12 varieties of caliber and make and manufacture and so forth.

[00:10:57] Speaker 04:
There's a lot of variety and quantity.

[00:10:59] Speaker 02:
All of those were found on September 8th, is that right?

[00:11:02] Speaker 02:
In his trailer.

[00:11:03] Speaker 02:
Correct.

[00:11:04] Speaker 02:
All right.

[00:11:04] Speaker 02:
And then, so we know that those were possessed by him.

[00:11:08] Speaker 02:
The jury found that those were possessed by him on that day.

[00:11:11] Speaker 04:
We don't know that those were possessed by him.

[00:11:13] Speaker 04:
We know that Mr. Irwin said he left the ammunition there, but we don't know they were possessed, knowingly possessed by Mr. Ness on that day.

[00:11:23] Speaker 02:
Looking at the verdict form.

[00:11:24] Speaker 02:
Yes.

[00:11:25] Speaker 02:
First of all, you have the indictment, which lists all of those separate kinds of ammunition, and it says

[00:11:29] Speaker 02:
that on or about September 8th within the district, knowingly possessed and affecting commerce, ammunition to wit.

[00:11:38] Speaker 02:
And then we have the 12 categories.

[00:11:40] Speaker 02:
Verdict form, we the jury do the impanel, find, following, count one.

[00:11:45] Speaker 02:
Did defendant knowingly possess ammunition as charged in the indictment?

[00:11:52] Speaker 02:
And so it's not just ammunition he was talking about in his Facebook conversations or anything else

[00:11:58] Speaker 02:
It's the ammunition as charged in the indictment, which is the very ammunition that was found during the search of his trailer.

[00:12:06] Speaker 02:
Taking the firearm out of it, why is that not sufficient?

[00:12:10] Speaker 04:
It's not sufficient because of what the court's instructions said.

[00:12:15] Speaker 04:
The court said that it was a crime for a felon to possess any ammunition.

[00:12:22] Speaker 04:
The instructions were repeatedly phrased in terms of

[00:12:26] Speaker 04:
a firearm or any ammunition.

[00:12:29] Speaker 04:
The jury was not given any instruction on what it needed to do if it found that he possessed some of the ammunition but not other ammunition.

[00:12:38] Speaker 04:
And again, the jury wouldn't have been looking to things other than September 8, as his note shows it was, if it was relying just on what was in the trailer.

[00:12:51] Speaker 02:
It might have with the firearm and not the ammunition.

[00:12:55] Speaker 04:
Well, but once it found the firearm, the ammunition didn't have to find the firearm, although the special verdict form did call for a determination.

[00:13:03] Speaker 02:
It was required to say yes or no.

[00:13:05] Speaker 02:
But to me, the words that are really hanging me up as far as your argument are as charged in the indictment on the verdict form.

[00:13:14] Speaker 02:
That limits it to the very ammunition that was found that day.

[00:13:18] Speaker 02:
I don't see a possibility how the jury could say, we don't think he

[00:13:23] Speaker 02:
possess any of the ammunition that was in his trailer because he didn't know about it.

[00:13:27] Speaker 02:
But we do think he possessed some ammunition eight months ago.

[00:13:30] Speaker 02:
That wouldn't match up with this language.

[00:13:33] Speaker 02:
That would be ammunition that was not charged.

[00:13:36] Speaker 04:
Well, it wasn't told what it needed to do if the government had proved that 10 of the 12 types, I think there were 12 types, of ammunition were found in the trailer on that day.

[00:13:46] Speaker 04:
What was it to do then?

[00:13:48] Speaker 04:
It wasn't told if it found some of it.

[00:13:51] Speaker 04:
what was it to do.

[00:13:53] Speaker 04:
It was told any ammunition was a crime.

[00:13:57] Speaker 04:
And so its verdict is properly taken as proof that the government proved possession of ammunition.

[00:14:06] Speaker 04:
It doesn't have to be all that was in the indictment.

[00:14:10] Speaker 04:
It has to be some ammunition that was charged in the indictment.

[00:14:13] Speaker 04:
But the court's instructions certainly doesn't address the possibility of some versus any.

[00:14:19] Speaker 04:
And the instruction is any

[00:14:21] Speaker 04:
A possession of any ammunition by a felon is a crime.

[00:14:27] Speaker 01:
So let me ask you this.

[00:14:30] Speaker 01:
Just to be clear, we're sort of getting into evidence and things like that.

[00:14:34] Speaker 01:
You're not suggesting that there's insufficient evidence to convict him?

[00:14:39] Speaker 01:
No, not at all.

[00:14:40] Speaker 01:
So you would agree that if we view the evidence in the light most favorable to the jury verdict that this would be upheld on a sufficiency charge?

[00:14:47] Speaker 01:
Certainly.

[00:14:49] Speaker 04:
So we would ask the court to reverse for plain error and grant Mr. Ness a new trial.

[00:14:54] Speaker 04:
Thank you.

[00:14:54] Speaker 04:
Thank you.

[00:15:06] Speaker 00:
Good morning, Your Honors.

[00:15:07] Speaker 00:
May it please the court, Lisa Williams here for the United States of America.

[00:15:13] Speaker 00:
I think that the

[00:15:15] Speaker 00:
need of this case comes down to how the court interprets the jury's question.

[00:15:22] Speaker 00:
And the defense lays out his interpretation of the question in his appeal brief, but the government offers an equally compelling other interpretation.

[00:15:31] Speaker 00:
And the court doesn't have to decide which one is right.

[00:15:35] Speaker 00:
It's the fact that there are multiple ways to interpret what the jury was asking that leads to the conclusion that they

[00:15:45] Speaker 00:
the court didn't plainly err in how it responded.

[00:15:49] Speaker 00:
The court took a very measured approach with just referring them back to the evidence.

[00:15:55] Speaker 00:
And if it would have started to get in and guess about what their question meant, that's when I think the court would have waded into more dangerous territory.

[00:16:07] Speaker 00:
If the jury then was still confused with the court's answer, they could have followed up with another more specific answer.

[00:16:15] Speaker 00:
But the jury didn't do that in this case and instead returned the verdict.

[00:16:19] Speaker 00:
And so I think that there's just not, given how this plays out, there's just not enough to find an error, let alone a plain error on the court's part.

[00:16:32] Speaker 00:
And here's why the government would put forth its interpretation of the question.

[00:16:37] Speaker 00:
You know, you've got a jury sitting here.

[00:16:39] Speaker 00:
And defense counsel stresses in closing that this case is only about possessing the firearm on September 8th.

[00:16:47] Speaker 00:
Defense counsel concedes in closing that the defendant previously possessed the firearm.

[00:16:53] Speaker 00:
He says, absolutely, he was on Facebook, he possessed the firearm, he was firing it.

[00:16:59] Speaker 00:
But that's not what this case is about.

[00:17:01] Speaker 00:
This case is only about September 8th.

[00:17:04] Speaker 00:
And so the jury goes back hearing that and then is probably confused about, okay, so if it's about September 8th, then why is all this evidence about his prior possession relevant?

[00:17:17] Speaker 00:
Why should we, and that's what they're saying, how far back can we go with this stuff to see if he possessed it on September 8th?

[00:17:25] Speaker 00:
I think all of us in this room as lawyers understand that prior possession of a firearm, of the same firearm is intrinsic

[00:17:33] Speaker 00:
to the allegation of later possession and that it's very relevant and that it's helpful information.

[00:17:41] Speaker 00:
But a jury of non-attorneys of laypeople, I think it's reasonable to think that they may be a little confused about why they didn't tell us a little bit.

[00:17:50] Speaker 01:
Well, maybe that's why they, I'm sorry, go ahead.

[00:17:52] Speaker 03:
If we're going to hypothesize about what the jury was thinking, let's say they go back and all 12 of them, of course, agree that he possessed it in December of 2020.

[00:18:01] Speaker 03:
Would the government agree that as a matter of law that would not be covered by the honor about language?

[00:18:11] Speaker 00:
So It's it's I don't feel comfortable agreeing that as a matter of law it's not and the reason I don't your honor is because The case laws within a few weeks is fine, but some other interval that's reasonable given the contours of the case and I Just was reading this case

[00:18:30] Speaker 00:
In another context, and I cannot remember the name, but it's a 1999 case from this circuit, and it was about sexual abuse of a child in the indictment charge October of 1995, as when the Sex Act took place.

[00:18:44] Speaker 00:
And what happened is the trial evidence showed that the defendant had prostate surgery in September of 1995.

[00:18:51] Speaker 00:
And he would be unable to have sex to ejaculation for four to six weeks after that.

[00:18:56] Speaker 00:
And then he was also in prison for a long period of time in the beginning of 1995.

[00:19:01] Speaker 00:
And the court said, you know, the problem with the case is that the child never testified to any sex act in 1995.

[00:19:08] Speaker 00:
If there was some proof somewhere in 1995 that this sex act had taken place, then maybe that would be within the evidence.

[00:19:15] Speaker 00:
Well, sure.

[00:19:15] Speaker 03:
I mean, there's some ambiguity in what reasonably near means.

[00:19:19] Speaker 03:
We can concede that.

[00:19:20] Speaker 03:
But under the facts of this case, would you say?

[00:19:24] Speaker 03:
So not going into other cases that have unique facts where defendants had surgery and been in prison.

[00:19:30] Speaker 03:
But here, when there is evidence of actual possession in December of 2020,

[00:19:35] Speaker 03:
there's a charge of possession in September of 2021.

[00:19:37] Speaker 03:
Would the government agree that reasonably near is not covered by that gap in time?

[00:19:46] Speaker 00:
I think that it would be a stretch.

[00:19:50] Speaker 00:
I think it would be a different case for me to have to stand up here and argue that it was reasonably near.

[00:19:55] Speaker 00:
I think that I would agree it's a hard road for the government to make sure.

[00:20:00] Speaker 03:
And I will agree that

[00:20:03] Speaker 03:
Both parties have different interpretations of the jury note, and there's certainly some ambiguity to it.

[00:20:08] Speaker 03:
But the district court's response is focused on a factual aspect of it.

[00:20:13] Speaker 03:
You have all the evidence.

[00:20:15] Speaker 03:
And you mentioned, well, the jury was free, if it still had questions, to ask more questions.

[00:20:19] Speaker 03:
But a fair reading of the response from the court would be essentially shut the door on more questions.

[00:20:25] Speaker 03:
You have all the evidence you need to render your verdict.

[00:20:27] Speaker 03:
In other words, get back in there.

[00:20:28] Speaker 03:
You have the evidence.

[00:20:29] Speaker 03:
And don't bother me anymore.

[00:20:31] Speaker 03:
So we're evaluating whether district court committed error under Supreme Court precedents to, you know, in concrete terms, clear up these questions.

[00:20:41] Speaker 03:
How do we interpret the district court's response related to the best reading, I think, of the jury question?

[00:20:47] Speaker 00:
Well, I think what's important is that the district court offered its interpretation of the question and then says,

[00:20:55] Speaker 00:
I could also reference them to the honor about, but I don't know whether I need to do that or not.

[00:21:01] Speaker 00:
And that shows that the district court did say, maybe they are talking about this, but I don't know if I need to.

[00:21:08] Speaker 00:
And then both attorneys said, no, no, you don't need to do that.

[00:21:11] Speaker 00:
And so at the time that this was happening in the trial,

[00:21:15] Speaker 00:
the court and the parties didn't think that that additional response was necessary because that's not really what they interpreted the question as getting to.

[00:21:26] Speaker 00:
I do think your point is well taken about the answer you have all the evidence you need could be chilling to the jury asking additional questions.

[00:21:37] Speaker 00:
But at the same time,

[00:21:39] Speaker 00:
It's just hard to know whether or not it did have that chilling effect.

[00:21:43] Speaker 00:
Juries are such peculiar beasts that it's hard to know how they interpret what we tell them or what the court tells them.

[00:21:56] Speaker 00:
I think in this case, the plain error hurdle is really insurmountable on the

[00:22:08] Speaker 00:
substantial likelihood and the fourth prong, the effect on the integrity of the judicial system.

[00:22:16] Speaker 00:
And it's funny because we often appear on, well not often, but we appear on plain error review and it's always been hard to conceptualize a case

[00:22:26] Speaker 00:
that a court finds plain error that affects a substantial right that doesn't then impact the fairness and integrity of the judicial proceeding.

[00:22:36] Speaker 00:
But I actually think this is the case because Mr. Ness is guilty.

[00:22:42] Speaker 00:
There's simply no doubt about that.

[00:22:45] Speaker 00:
His defense at trial was not that he didn't know the firearms were in his house.

[00:22:49] Speaker 00:
He conceded that he did.

[00:22:51] Speaker 00:
His defense is that he thought that he wasn't allowed to own firearms, but that he could possess firearms.

[00:22:58] Speaker 00:
And so he was confused about his ability to possess firearms.

[00:23:04] Speaker 00:
That was his trial defense.

[00:23:05] Speaker 00:
And as a matter of law, we all know that the law of possession is not concerned with ownership.

[00:23:11] Speaker 00:
It's concerned with direct or indirect control over the item.

[00:23:15] Speaker 00:
And so Mr. Ness is absolutely guilty.

[00:23:19] Speaker 00:
possessing these firearms and ammunition on September 8th.

[00:23:22] Speaker 00:
He lives alone.

[00:23:23] Speaker 00:
He knew the firearms were there.

[00:23:26] Speaker 00:
He admitted in the conversation with the ATF agent that he knew that the firearms were there, that he was keeping them safe for a friend.

[00:23:32] Speaker 00:
No one else had direct control over these items in his house.

[00:23:36] Speaker 00:
And so to argue that this error, that there needs to be a retrial, that we need to go back, the only argument that Mr. Ness can use to escape being

[00:23:49] Speaker 00:
convicted of these charges is some sort of jury nullification.

[00:23:52] Speaker 00:
Like, hey, jury, I know that the law says what it is, but I was really confused, so please don't find me guilty.

[00:23:58] Speaker 00:
And that is not in the interest.

[00:24:02] Speaker 00:
That type of jury nullification argument doesn't uphold the interests of justice and what we're looking for.

[00:24:09] Speaker 00:
That being said, he also bears a very steep hill on proving an effect on his substantial rights.

[00:24:15] Speaker 00:
Again, for many of the same reasons, he's just plainly guilty of this offense.

[00:24:20] Speaker 02:
I thought that, and I may well be mistaken, I thought that Mr. Ness contested that he knew that those were in the trailer.

[00:24:29] Speaker 02:
His friend said he did, and he said he didn't.

[00:24:31] Speaker 02:
The agent said he admitted some things that he disputed that he told the agent.

[00:24:38] Speaker 02:
In other words, I don't know that it's that straight up and down.

[00:24:41] Speaker 00:
He argued, Your Honor, I'm sorry I'm having so many troubles with this microphone.

[00:24:46] Speaker 00:
I really apologize for that.

[00:24:48] Speaker 00:
He admitted in the conversation with Special Agent with them.

[00:24:54] Speaker 00:
that he knew that the firearms were in his house because he knew his friend had dropped them off and he was holding them for his friend.

[00:25:01] Speaker 02:
According to the agent.

[00:25:02] Speaker 00:
According to the agent.

[00:25:03] Speaker 00:
And then again, at trial, what I recall is that the government attorney kept trying to get him to admit that he possessed the firearms and that's what he refused to admit to.

[00:25:13] Speaker 00:
He refused to admit that he possessed them.

[00:25:15] Speaker 00:
And he tried to say, but I do recall, I don't think he ever said I had no idea they were in my house.

[00:25:22] Speaker 00:
He wanted to draw that line that his knowledge of them being there was different than him possessing the firearms.

[00:25:30] Speaker 00:
And that's how the testimony came out.

[00:25:32] Speaker 02:
Is there a reason, is the real problem underlying all of this that the government didn't charge account for December as well?

[00:25:40] Speaker 00:
Well, Your Honor, I have to tell you, I don't think that that's the real problem.

[00:25:43] Speaker 00:
I think that there would be some charging difficulties with that account or with charging the December possession for some of the reasons that you flagged when counsel was up here.

[00:25:52] Speaker 00:
The Facebook video of the gun is good evidence.

[00:25:56] Speaker 00:
I don't want to pretend that it's not.

[00:25:59] Speaker 00:
But the government has to prove that it's a firearm that had traveled in interstate commerce.

[00:26:03] Speaker 00:
And it's very difficult to satisfy that burden of proof with just a video of a firearm.

[00:26:09] Speaker 00:
You can't read the serial number off of it.

[00:26:12] Speaker 00:
And so that's a harder charge to have.

[00:26:17] Speaker 00:
They surely could have included it.

[00:26:19] Speaker 00:
We could have.

[00:26:20] Speaker 00:
But it's not best practice.

[00:26:25] Speaker 02:
Why not?

[00:26:26] Speaker 02:
Why would that not be best practice so we're not having this argument now?

[00:26:30] Speaker 02:
The jury would have said, yes or no.

[00:26:32] Speaker 02:
This is a gun that you would have had testimony.

[00:26:34] Speaker 02:
This is the manufacturer.

[00:26:36] Speaker 02:
Therefore, across the state line, we don't have the serial number.

[00:26:39] Speaker 02:
think it's the same firearm.

[00:26:41] Speaker 02:
Here are the reasons why.

[00:26:42] Speaker 02:
And if the jury said not guilty on that count, fine.

[00:26:46] Speaker 00:
And again, we could have.

[00:26:48] Speaker 00:
The linkage of proof to get there is much more tenuous than the linkage of proof for the September 8th count because that firearm was actually physically recovered and is able to be examined by ATF agents.

[00:27:05] Speaker 00:
And I'm not saying it's not there.

[00:27:07] Speaker 00:
because I think there is strong evidence that I believe it's the 4473 form was pulled from the purchase in Wyoming in the serial numbers match.

[00:27:16] Speaker 00:
And so we know for sure that the firearm recovered on September 8th is Mr. Erwin's firearm and that he purchased it in Wyoming.

[00:27:22] Speaker 00:
And Mr. Erwin is in the Facebook page.

[00:27:24] Speaker 00:
And so I don't want to act like there's no evidence that it's the same firearm.

[00:27:28] Speaker 00:
The government would submit that it is the same firearm.

[00:27:33] Speaker 00:
And we could have charged.

[00:27:35] Speaker 00:
And maybe we wouldn't have come to the circuit.

[00:27:38] Speaker 02:
So what fixes this next time?

[00:27:40] Speaker 02:
Is it just a replay next time this happens?

[00:27:43] Speaker 02:
Or is there something that some mistake that was made, even if it doesn't lead to a reversal?

[00:27:53] Speaker 00:
I do think a fair reading of the case law, the district court could have also referred the jury back to its instructions.

[00:28:00] Speaker 00:
You have all the evidence you need and the instructions to guide you.

[00:28:05] Speaker 00:
I think we can Monday morning quarterback it all day long and come up with some things that the district court could have done.

[00:28:12] Speaker 00:
I think we could do that in every single case your honor, things that we could have done better.

[00:28:17] Speaker 00:
But at the same time, this was not a clear question from the jury.

[00:28:21] Speaker 00:
And I think it's better that the trial court err on the side of caution and brevity when answering an unclear question than really start to wade in and interpret.

[00:28:30] Speaker 00:
I guess the court could have asked the jury for more clarity on its question before answering it.

[00:28:37] Speaker 01:
Did you come up with any research where the case included a back and forth between the judge and the

[00:28:44] Speaker 01:
jury where they ask.

[00:28:46] Speaker 01:
I mean, this is a very artful question that they asked.

[00:28:50] Speaker 01:
Part of it could be suggesting they wanted to know something about the law.

[00:28:54] Speaker 01:
Part of it could suggest they wanted to know something about the facts.

[00:28:59] Speaker 01:
Did you come across any case where when the judge got an unclear question, they sent it back and said, I don't really know what you mean.

[00:29:06] Speaker 01:
Send me a better question.

[00:29:07] Speaker 01:
Do something like that?

[00:29:09] Speaker 00:
I didn't find a case like that, Your Honor.

[00:29:11] Speaker 00:
I would have cited it if I had, because I think that that

[00:29:14] Speaker 00:
Would maybe be a best practice that if everyone's confused again the best practices to ask for clarity before answering the question Or our colleagues on the trial branch may suggest that engaging and extended note note writing campaigns with the jury could result in more confusion, but I

[00:29:33] Speaker 00:
Well, and that's something that it's important to put in the context, right, is we're saying the jury is confused.

[00:29:39] Speaker 00:
But we actually don't know how many of the jurors had this question.

[00:29:42] Speaker 00:
Sometimes it's just a lone holdout.

[00:29:44] Speaker 00:
And the other 11 to placate him say, fine, send it in.

[00:29:49] Speaker 00:
And then when they get the question back, they're like, see, we told you.

[00:29:52] Speaker 00:
You're not going to get any info.

[00:29:53] Speaker 00:
Can we vote now?

[00:29:54] Speaker 00:
And given that, we got a verdict an hour after the question.

[00:29:57] Speaker 00:
There's some support there.

[00:29:59] Speaker 00:
I see that I am nearly out of time.

[00:30:02] Speaker 00:
Thank you.

[00:30:03] Speaker 02:
Thank you.

[00:30:13] Speaker 04:
Very briefly, the note itself is talking about how far back do we go on the dates.

[00:30:18] Speaker 04:
The district court said maybe we should, I could just strike them an honor about, the court clearly understood it as showing confusion on the honor about.

[00:30:26] Speaker 04:
It didn't adequately respond to that.

[00:30:28] Speaker 04:
And the court was right that Mr.

[00:30:30] Speaker 04:
Ness did dispute whether he knew, did say he didn't know that the guns had been put there and that's on volume 3 at page 289 to 290 as it's paginated in the bottom right hand corner and the score's header.

[00:30:45] Speaker 04:
Thank you.

[00:30:46] Speaker 02:
Thank you counsel for your arguments.

[00:30:48] Speaker 02:
The case is submitted and you are excused.