[00:00:00] Speaker 03: next case will be u.s. [00:00:01] Speaker 03: versus young twenty three six oh nine four okay the next case is u.s. [00:00:13] Speaker 06: versus young and we'll hear from this desk work [00:00:26] Speaker 06: In this case, Mr. Jones objected to being held accountable via relevant conduct for fentanyl amounts tied to pills found in a lunch box in his bedroom closet. [00:00:40] Speaker 06: In response to that objection, the government proceeded without a witness, but chose to rely upon unsworn documents that included an incident report and an unsworn probable cause affidavit in addition to photographs. [00:00:58] Speaker 06: And so the question here is, was that enough? [00:01:01] Speaker 06: We also have a preservation issue that I acknowledge. [00:01:05] Speaker 06: And I wanted to deal with that upfront. [00:01:09] Speaker 06: The objection was he didn't know about the pills. [00:01:18] Speaker 06: The lunchbox wasn't his. [00:01:20] Speaker 06: That was the argument that defense counsel was making below. [00:01:23] Speaker 03: Yeah, he had nothing to do with the fentanyl that had been described. [00:01:29] Speaker 06: Correct. [00:01:30] Speaker 06: I think he consistently referred to the drugs or the pills, and so did the court. [00:01:40] Speaker 06: I'm scouring the record here because I was looking for, is there evidence that these M30 pills that are repeatedly described were actually fentanyl? [00:01:55] Speaker 03: It was obviously 30 milligrams of oxycontin that had been allegedly laced with fentanyl, just like the M30 that had been laced with fentanyl that had already been found and tested. [00:02:07] Speaker 06: Correct. [00:02:09] Speaker 06: So these are different times, at different dates, and I acknowledge that that's an issue. [00:02:16] Speaker 06: What happened here was, so in paragraph 20 of the PSR, that's exactly where it describes what was found, the relevant conduct here, and it only describes M30 pills being found. [00:02:32] Speaker 06: It doesn't say M30, which relates to the fentanyl. [00:02:37] Speaker 03: The probable cause affidavit does that. [00:02:40] Speaker 06: The probable cause affidavit [00:02:42] Speaker 06: states that these pills were marked M30 and FTP fentanyl. [00:02:49] Speaker 06: But it doesn't describe any further whether the pills themselves were actually stated on the pills that they contained fentanyl, were they in bags that contained fentanyl. [00:03:00] Speaker 06: And then you have an incident report that states nothing about fentanyl, only describes M30. [00:03:07] Speaker 06: And we didn't have a witness here to state anything like M30 is [00:03:12] Speaker 06: commonly lights with fentanyl, or we didn't even have a field testing of these pills. [00:03:17] Speaker 03: Can I ask you just a practical question? [00:03:21] Speaker 03: So, I mean, we are presumably on plain error, but you can set us straight on that. [00:03:28] Speaker 03: But assuming we are here on plain error, the Defendants' Council says, you know, we didn't have anything to do, we didn't know about this fentanyl. [00:03:42] Speaker 03: And so Judge Friatt is determining the quantity of the fentanyl. [00:03:48] Speaker 03: And as you point out candidly in your opening brief, everybody, including defense counsel, presumably including Judge Friatt, assumed that there was no question about fentanyl. [00:03:59] Speaker 03: So of course, there's not going to be any field testing of the drugs on the shelf to say, OK, well, this is lab tested or field tested for fentanyl. [00:04:09] Speaker 03: Nobody was questioning it. [00:04:11] Speaker 03: The defense counsel appeared to be acknowledging it. [00:04:14] Speaker 03: So isn't it a little counterintuitive, in defiance of common sense, to say, okay, well, on plain error, there was absolutely no evidence to support this factual finding on an issue that not only had gone under the radar, as you put it, I think, [00:04:37] Speaker 03: but that everybody acknowledged it was fentanyl, including defense counsel. [00:04:41] Speaker 06: I think defense counsel acknowledged that they were drugs. [00:04:46] Speaker 06: In his objection that was listed in the PSR, written at the end, it does say fentanyl in there, but he's not acknowledging that they're fentanyl. [00:04:55] Speaker 06: I think that in that case, [00:04:58] Speaker 06: They're alleged to be fentanyl, and so he's just going with that description, but he's also saying, well, my client doesn't know anything about these. [00:05:06] Speaker 06: So I think subsumed within stating, those aren't mine, I don't know anything about them, is the idea that, I mean, I don't know what's in that box. [00:05:19] Speaker 06: So I mean, I do acknowledge, yes, he did not say to the judge, in addition to, [00:05:26] Speaker 06: to arguing that I didn't know about these pills. [00:05:28] Speaker 06: I argued that those pills weren't fentanyl, and you need to prove it. [00:05:32] Speaker 06: That did not happen here, and I acknowledge that. [00:05:34] Speaker 04: Yeah. [00:05:34] Speaker 04: I mean, it's pretty close here. [00:05:36] Speaker 04: It's almost to invited error on the transcript where, sentencing transcript, where the judge says the two incidents that ultimately the judge found there was possession on. [00:05:48] Speaker 04: This brings us to a little over 600 grounds, loosely speaking. [00:05:51] Speaker 04: We're at 633. [00:05:53] Speaker 04: Everybody seemed to understand. [00:05:54] Speaker 04: We're talking about fentanyl. [00:05:55] Speaker 04: Mrs. Connelly says, yes, Your Honor. [00:05:57] Speaker 04: The court says, and does the defendant concur? [00:06:00] Speaker 04: And defense counsel says, yes, Your Honor. [00:06:03] Speaker 04: I have 634.28 grams. [00:06:06] Speaker 04: He's referring to fentanyl. [00:06:07] Speaker 06: Yeah, he's referring to the amounts that were calculated there. [00:06:12] Speaker 06: And there wasn't a discussion. [00:06:13] Speaker 06: Are we talking about fentanyl or not? [00:06:15] Speaker 06: So if we're here on plain error, I would just state that we have in this case the district court stating, [00:06:26] Speaker 06: that he has sufficient indicia of reliability with respect to the facts set forth in government's exhibits two and three, augmented by photographic exhibits, sufficient to enable me to confidently say, yes, the defendant possessed the fentanyl that's described in exhibits two and three. [00:06:46] Speaker 06: And there is no fentanyl described in exhibits two and three. [00:06:51] Speaker 03: Well, he's just mimicking the defense counsel's exact language. [00:06:55] Speaker 03: That's exactly what the defense counsel referred to it as, the fentanyl that had been described, right? [00:07:02] Speaker 03: So described as just parroting defense counsel. [00:07:04] Speaker 03: That's correct. [00:07:05] Speaker 06: I mean, I have to acknowledge that. [00:07:07] Speaker 06: That's just exactly what happened. [00:07:09] Speaker 06: I think my ultimate problem here is that, yes, everyone in this case was discussing M30. [00:07:17] Speaker 06: And nowhere is there proof that this M30 was fentanyl. [00:07:22] Speaker 06: There's an unspored probable cause affidavit that states it. [00:07:26] Speaker 06: But without any other information and without any support from the actual incident report that doesn't state anything about fentanyl, nor was it field tested. [00:07:37] Speaker 00: Well, Counsel, can I ask about the precincts report? [00:07:41] Speaker 00: You mentioned paragraph 20, but two paragraphs above that and paragraph 18. [00:07:45] Speaker 00: It's a subhead that says, possession of fentanyl, Cleveland County, Oklahoma City. [00:07:51] Speaker 00: As you mentioned, defense counsel made objections to the precinct's report, but not to that paragraph in terms of, again, what the substance was. [00:08:00] Speaker 00: So when the parties got together for the sentencing hearing, and the judge was contemplating those objections for purposes of making findings and guideline calculations, under Rule 32, of course, the judge can rely upon any undisputed facts. [00:08:17] Speaker 00: Why doesn't the fact that Mr. Young did not object to paragraph 18 perhaps again answer the bell as to what the court could rely upon to make that finding a fact that these pills were in fact fentanyl. [00:08:32] Speaker 06: I guess because that was just a heading paragraph, as I recall, and the actual substance where it's talking about what was found merely says M30. [00:08:42] Speaker 06: And even in the paragraph where they're adding up the amounts, it only refers to M30, not fentanyl. [00:08:49] Speaker 06: And that's the paragraph that he objected to. [00:08:57] Speaker 06: And if you don't have any further questions, I will cede the rest of my time. [00:09:01] Speaker 03: Well, we do have questions. [00:09:04] Speaker 03: But Robert, let's stop our clock at six minutes. [00:09:09] Speaker 03: But I do want to ask you just about the standard. [00:09:12] Speaker 03: Let's say, assume for purposes of my question that we do apply a plain error. [00:09:17] Speaker 03: Now, I think you acknowledge, at least I think it's pretty clearly the law, that not only, I mean, [00:09:24] Speaker 03: You have an argument about de novo review for relevant conduct, but subsidiary factual findings that go into the determination of relevant conduct, I think, for factual questions are clearly subjected to the clear error standard if preserved, right? [00:09:39] Speaker 03: I think so. [00:09:40] Speaker 03: So what I, my question is, so what happens if [00:09:44] Speaker 03: a defendant fails to preserve an objection to a factual challenge. [00:09:48] Speaker 03: Does the clear error standard disappear or does the prong two of plain error, the obviousness prong, is that in effect requiring us to say, was it obvious that the district court committed clear error? [00:10:07] Speaker 03: Is that ultimately on plain error how we would apply prong two? [00:10:13] Speaker 03: on a subsidiary factual issue. [00:10:17] Speaker 06: I think that's correct. [00:10:19] Speaker 06: When I was researching this, I was tangling with these same issues as to how to apply this. [00:10:26] Speaker 06: But I think that yes, here the district court made a finding that there was sufficient indicia of reliability within these documents. [00:10:36] Speaker 06: And so then is that, and that was an issue that [00:10:42] Speaker 06: just the trial counsel didn't specifically object to that, but it was a finding that was made and clearly on the record. [00:10:52] Speaker 06: And this court can, because there was no witness, because there's no, it's not like a credibility issue where you have a witness that only the district court and people that were there saw it to where you give credence to what the trial court determined there. [00:11:08] Speaker 06: Here we have plain, [00:11:10] Speaker 06: you're looking at everything that the district court had to go on, that clear error then can be the standard. [00:11:19] Speaker 03: Okay, on this probable cause affidavit, let's say it had said during the course of the search, approximately 4,000 blue pills marked FTP fentanyl were discovered inside a lunchbox. [00:11:32] Speaker 03: Would that have been an obvious, obviously clear error to find that those 400 pills [00:11:40] Speaker 03: contain traceable quantities of fentanyl? [00:11:46] Speaker 03: Yes. [00:11:46] Speaker 03: Even if, even if, why would it have been obvious if there was an unsworn document that, that, that specifically identifies that, that, that is the affidavit that is submitted in, in presumably in support of a warrant [00:12:07] Speaker 03: that specifically identifies this substance as fentanyl. [00:12:12] Speaker 06: Because that particular document was only a probable cause affidavit, and it was unsworn and unsigned. [00:12:20] Speaker 06: It was only two paragraphs, and then you have the report that would have been relied upon to create this probable cause affidavit, nothing that mentions fentanyl whatsoever. [00:12:31] Speaker 03: Well, it mentions the 30-milligram oxycontin, but he had already been found with these blue pills that were 30-milligram oxycontin that it also contained fentanyl. [00:12:45] Speaker 03: I mean, obviously, there's a lot of 30-milligram oxycontin that is laced with fentanyl. [00:12:50] Speaker 03: We know that because he was found with it in Albuquerque, I think. [00:12:54] Speaker 06: Well, we don't know the degree on this record to M30s and whether or not they contain fentanyl all the time. [00:13:02] Speaker 06: We have that there's the Albuquerque incident, but the court found that [00:13:10] Speaker 06: the reports that were provided there were not reliable. [00:13:14] Speaker 06: And so he did not find that he was accountable. [00:13:18] Speaker 06: He was not held accountable for that. [00:13:19] Speaker 03: He wasn't held accountable for it, but he, Judge Fry didn't say, oh, but I don't think that that 30-milligram oxycontin didn't contain fentanyl. [00:13:26] Speaker 03: He just said he didn't, he thought that the woman was accountable for it, not him, right? [00:13:30] Speaker 06: Right. [00:13:31] Speaker 06: Sure. [00:13:32] Speaker 03: Okay. [00:13:32] Speaker 03: So, but there was no question that that 30-milligram mass you got. [00:13:35] Speaker 06: Well, you know, he didn't actually go so far as to say that. [00:13:38] Speaker 06: He just acknowledged these were unreliable documents, and so he wasn't going to go with whatever they said. [00:13:44] Speaker 03: Okay. [00:13:44] Speaker 03: Last question, and then I'll quit bothering you. [00:13:46] Speaker 03: Is there a precedent? [00:13:49] Speaker 03: Is there a tensor case published or unpublished, a Supreme Court case, that says that an unsworn probable cause affidavit [00:13:58] Speaker 03: cannot be used for as adequate support for a factual finding for the contents therein? [00:14:06] Speaker 06: No, there's not one. [00:14:08] Speaker 06: I think that in this case, these particular documents weren't enough. [00:14:13] Speaker 03: Isn't that a problem because we have a lot of cases that say an error is only obvious if there's a precedent that would dictate a contrary result? [00:14:23] Speaker 06: This is so factually based, I think that based on the record, you can look at it and see that they don't have sufficient and decent reliability. [00:14:30] Speaker 03: Okay. [00:14:35] Speaker 03: Okay, thank you. [00:14:36] Speaker 02: Thank you. [00:14:45] Speaker 01: Ms. [00:14:46] Speaker 01: Bagwell? [00:14:48] Speaker 05: Good morning, Your Honors. [00:14:49] Speaker 05: May it please the Court. [00:14:50] Speaker 05: My name is Elizabeth Bagwell. [00:14:51] Speaker 05: I'm arguing on behalf of the United States. [00:14:54] Speaker 05: This Court should find that the District Court committed no error in including the approximately 4,000 fentanyl pills from the defendant's residence as relevant conduct when sentencing the appellant, Mr. Young. [00:15:07] Speaker 05: This case begins and ends with the fact that not only did Mr. Young never specifically object that the pills were fentanyl, but he affirmatively referred to them as fentanyl in his PSR objection, and then repeatedly referred to them as these specific drugs or drugs when the only drug at issue at the sentencing hearing was fentanyl. [00:15:28] Speaker 03: I thought he referred to the drugs described as fentanyl. [00:15:33] Speaker 05: Your Honor, I believe that the pre-sentencing report in the objection on page 29 refers to the drugs as [00:15:46] Speaker 05: Mr. Young disputes possessing the fentanyl pills described in these paragraphs. [00:15:51] Speaker 05: So not as described as fentanyl. [00:15:53] Speaker 05: He disputes possessing fentanyl pills that have been described in this paragraph. [00:15:57] Speaker 05: It's a semantic issue, but I think it's clear that at the time that these objections were made, the defendant was not objecting that the pills found were in fact fentanyl. [00:16:07] Speaker 05: And I would note that that is not subsumed, that factual inquiry as to whether the fentanyl pills were in fact fentanyl. [00:16:15] Speaker 05: into his objection of his knowledge. [00:16:17] Speaker 05: Those are two separate issues completely unrelated to one another. [00:16:21] Speaker 05: If the pills in the box had not been fentanyl and he said, oh, I knew they were fentanyl, the government would still have had to prove that those pills were fentanyl if he had objected to it. [00:16:31] Speaker 03: Are you arguing wafer or forfeiture? [00:16:33] Speaker 05: I would say waiver, your honor. [00:16:34] Speaker 05: However, we ultimately get to the same place, but I do believe there was an intentional abandonment of a known right, your honor. [00:16:42] Speaker 05: I believe that by affirmatively referring to these pills as fentanyl, he waived the right to contest that they were fentanyl later. [00:16:51] Speaker 05: By stating at sentencing, we are not objecting to these specific drugs. [00:16:57] Speaker 05: What we're objecting to is Mr. Young's involvement [00:17:01] Speaker 05: with them, that he should not be held accountable for them because there was another person in the house. [00:17:08] Speaker 05: However, even if we go with forfeiture, under a plain error standard, we get to the same place. [00:17:14] Speaker 05: This circuit's case law is extremely clear. [00:17:18] Speaker 05: that the failure to object to a type of drug is a factual failure that invokes plain error. [00:17:25] Speaker 05: That when you're under plain error, in order for there to be any error, there must be deviation from a legal rule. [00:17:31] Speaker 05: We have two legal rules here. [00:17:32] Speaker 05: One, the Federal Rule Criminal Procedure 32 that says any undisputed portion [00:17:37] Speaker 05: of the pre-sentence report can be accepted and we have the judge accepting it in his statement of reasons. [00:17:44] Speaker 05: We also have hooks from 2008 which states that failure to object to a specific fact deems the fact admitted by the defense and the government is not required to put on any further evidence to prove that fact. [00:17:56] Speaker 02: Well, what was there in the pre-sentence report that said it was affirmatively fentanyl? [00:18:01] Speaker 05: Your Honor, the pre-sentence report refers to those pills in the first paragraph as in 30 pills. [00:18:07] Speaker 05: That's true. [00:18:08] Speaker 05: However, when it calculates the total calculation for the grams, it refers to the, it says they're holding him accountable for at that time before the objection was sustained as to the previous incident, 1,279 grams of fentanyl. [00:18:25] Speaker 05: They're using the fentanyl drug calculation table. [00:18:28] Speaker 03: Additionally... Can you point me to where the pre-sentence report says that? [00:18:33] Speaker 05: Yes, Your Honor. [00:18:34] Speaker 05: That would be on page 14, I believe. [00:18:40] Speaker 05: Or I apologize, page 8. [00:18:43] Speaker 05: It's paragraph 24. [00:18:44] Speaker 05: For guideline purposes, the defendant will be held accountable for the amount of fentanyl pills seized in each incident for a total of 1,232 grams, or 34.28 grams. [00:19:05] Speaker 05: Additionally, within the probable cause reports that we do have admitted into the record, those pills are referred to as FTP, Fentanyl, and M30 pills. [00:19:14] Speaker 05: We also have the previous affidavit that refers to the pills as M30, which later tested positive for Fentanyl, and we have his... Not the same drugs, the ones in Albuquerque. [00:19:26] Speaker 03: The ones in Albuquerque, yeah. [00:19:28] Speaker 03: Could you address your adversary's argument about the probable cause affidavit? [00:19:35] Speaker 05: As to the reliability of the two that were admitted? [00:19:39] Speaker 03: Yeah, well, that the pills were marked M30 and FTP fentanyl. [00:19:48] Speaker 03: And that that was unreliable. [00:19:50] Speaker 03: It wasn't signed. [00:19:53] Speaker 05: Your Honor, I do not believe that the police reports were unreliable. [00:19:56] Speaker 05: I will note it's unclear from them if the pills were marked M30 [00:19:59] Speaker 05: or the postmarked in 30 and FTP fentanyl. [00:20:03] Speaker 05: However, we do have the pictures corroborating that the small blue pills were in this house, which they reported that the bags at least remarked FTP fentanyl. [00:20:11] Speaker 05: And we have the fact that there's corroborate the two reports while the judge and I'll be clear on this did not [00:20:18] Speaker 05: make a reliability assessment as to whether the reports were sufficient for Fentanyl because there was no notice given that he needed to or that the government needed to produce evidence. [00:20:29] Speaker 05: And I'll touch more on notice in a minute. [00:20:31] Speaker 05: He did make a reliability assessment as to whether these two reports were internally consistent [00:20:36] Speaker 05: and he found that they were. [00:20:38] Speaker 05: He made an individualized, on-the-record assessment of the reliability of the reports as a whole, which while it doesn't touch on the preservation of specific facts, it does show that there was enough evidence in the record to support this finding. [00:20:53] Speaker 05: Under plain error, in order for a factual dispute [00:20:57] Speaker 05: to constitute error, the facts in the record have to be wildly contradictory or implausible with relation to the finding that was made. [00:21:06] Speaker 05: So even if the court had made a finding that there was fentanyl based solely on this record, that's certainly not implausible or contradictory to the facts that we have in evidence. [00:21:16] Speaker 05: And the defendant doesn't claim it is. [00:21:18] Speaker 05: In fact, the appellant claims that we didn't have enough evidence, not that our evidence that these pills might be fentanyl was contradictory to the finding of fentanyl. [00:21:30] Speaker 05: Now, and again, I'll go back to the fact that the reason that we require defendants to make specific factual objections is to put both the government and the court on notice of what is required to be proven. [00:21:45] Speaker 05: The court is allowed to accept undisputed sections of the PSR and undisputed facts as fact at the sentencing hearing. [00:21:54] Speaker 05: Hooks says that any facts not specifically objected to are deemed admitted. [00:21:59] Speaker 05: So the appellant comes here today and asks you to find that there wasn't sufficient evidence in the record that these pills were fentanyl. [00:22:07] Speaker 05: When this is the first notice that the government or the court has been given, that that was even a question. [00:22:14] Speaker 03: That's, you know, in terms of equity, fairness, if we're talking about fairness, particularly to Judge Friatt, I bet you both of you would agree that reversal would be completely unfair to Judge Friatt. [00:22:27] Speaker 03: It wasn't presented with any of these arguments. [00:22:30] Speaker 03: Don't want to put words in your mouth. [00:22:31] Speaker 03: But your argument, I just don't follow in terms of rule 30 or rule 32. [00:22:43] Speaker 03: The pre-sentence report does not say anything that would have alerted Judge Friant to the fact that I, Judge Friant, have to find that there is something in the pre-sentence report that the defendant has objected to. [00:23:01] Speaker 03: The defendant objected to the fact that this quantity of the fentanyl described in the affidavit, or however the language is, [00:23:13] Speaker 03: was attributable to him. [00:23:16] Speaker 03: That's what he addressed. [00:23:18] Speaker 03: Yes, Your Honor. [00:23:18] Speaker 03: And he addressed the fact that there was this guy Wilkerson in the house, but the house is his, et cetera. [00:23:23] Speaker 03: So he is, understandably, laser focused on whether the defendant Young has completely, he could dominion and control over this bedroom of this shelf. [00:23:34] Speaker 03: But there's nothing that would have alerted him to the fact that there was, that [00:23:42] Speaker 03: that I, Judge Bryant, have to decide whether or not this objection ties into the content [00:23:50] Speaker 03: of the fentanyl. [00:23:54] Speaker 03: So there's nothing in the pre-sentence report that would have flagged to Judge Friant that he had to resolve an objection in the pre-sentence report. [00:24:04] Speaker 03: That's what it seems to me. [00:24:05] Speaker 05: I completely agree, Your Honor. [00:24:07] Speaker 03: So you would not say that the waiver of anything in the pre-sentence report would have constituted a waiver of an objection. [00:24:17] Speaker 03: We're back to forfeiture. [00:24:19] Speaker 05: No, Your Honor, I do think under the waiver doctrine, the known relinquishment, I think that the defendant stating, like we object to these fentanyl pills, his possession of them specifically, not that they were fentanyl, that constitutes a waiver. [00:24:39] Speaker 03: And was that statement in the pre-sentence report or in argument? [00:24:44] Speaker 05: The statement referring specifically to fentanyl was in the pre-sentence report objections. [00:24:51] Speaker 05: The statement at argument, I think the most relevant one in this context is that they specifically note, we are not disputing, and this was not, to the best of my memory, prompted by a question. [00:25:06] Speaker 05: This is within the defense's opening argument. [00:25:09] Speaker 05: We are not disputing that there were these drugs in the residence. [00:25:13] Speaker 05: What we're disputing is that Mr. Young was not involved, did not have an agreement with or wasn't otherwise associated with this visitor who had been there temporarily. [00:25:22] Speaker 03: And you would agree that that is classic forfeiture? [00:25:25] Speaker 05: I would say that's waiver, Your Honor, but if not, it is certainly classic forfeiture. [00:25:30] Speaker 05: All right. [00:25:30] Speaker 05: And I believe under forfeiture, there's really no question [00:25:35] Speaker 05: that the judicial court made no error by applying the well-established legal rule that the failure to object to a specific fact deems the fact admitted and that the district court can use all admitted facts and all undisputed portions of the PSR. [00:25:51] Speaker 05: If there are no further questions, I exceed the rest of my time. [00:26:04] Speaker 06: Thank you. [00:26:05] Speaker 06: I would just argue that by trial counsel stating that we're not disputing these drugs, I would concede that he conceded that these were M30 pills, M30, but not that those M30 pills were necessarily fentanyl. [00:26:30] Speaker 06: I admit this was not a [00:26:34] Speaker 06: the subject of discussion during this sentencing. [00:26:37] Speaker 06: I mean, that's just clear. [00:26:39] Speaker 06: It is what it is. [00:26:40] Speaker 06: But that it was the court's responsibility to find by preponderance of the evidence that he should be held attributable for these specific drugs. [00:26:54] Speaker 06: That was an objection. [00:26:56] Speaker 06: And everybody [00:26:58] Speaker 06: including counsel clearly, was accepting the idea that M30 equals fentanyl. [00:27:05] Speaker 06: But nowhere in the record is that clear as to why M30 [00:27:11] Speaker 04: What about the photos of the bags of pills that are marked FTP? [00:27:18] Speaker 06: They're not marked FTP. [00:27:19] Speaker 06: I thought that's what councils... Yeah, they weren't. [00:27:22] Speaker 06: I mean, we see the photos. [00:27:23] Speaker 06: If they were, you can't see them from the photographs. [00:27:26] Speaker 06: They're marked in 30, right? [00:27:30] Speaker 06: You can't tell that from the photographs either. [00:27:32] Speaker 06: All you see are blue pills. [00:27:34] Speaker 06: But the incident report says M30 pills. [00:27:38] Speaker 06: I can't remember right now if it says marked M30 or if it just says M30. [00:27:42] Speaker 06: And then the probable cause affidavit says marked M30 and FTP fentanyl. [00:27:47] Speaker 06: I don't know where they're getting that from, if that means the pills or the bags or both, or if some are marked one or the other. [00:27:57] Speaker 03: Why should an ambiguity cut in your favor if we're on plain error as to whether or not there was clear error? [00:28:09] Speaker 03: I mean, you have sort of a double whammy. [00:28:12] Speaker 06: I mean, I will admit it is a tough argument. [00:28:14] Speaker 06: I mean, I'm there. [00:28:15] Speaker 06: I understand. [00:28:17] Speaker 06: But the problem is that [00:28:20] Speaker 06: It's not like your typical case where you have methamphetamine or cocaine or things that are objectively are what... [00:28:29] Speaker 06: They usually have field testing or you can tell that it is the drug in some way, but here you don't have that. [00:28:36] Speaker 06: You just have these blue pills. [00:28:39] Speaker 06: Why are these necessarily fentanyl? [00:28:41] Speaker 03: Well, one reason is they look exactly like the pills that were when they were traveling from Albuquerque. [00:28:54] Speaker 06: But are they? [00:28:55] Speaker 06: We don't have that testimony on the record. [00:28:58] Speaker 06: We have blue pills. [00:28:59] Speaker 06: Are they the same size? [00:29:00] Speaker 06: Are they the same weight? [00:29:01] Speaker 06: Were they packaged the same way? [00:29:02] Speaker 06: I don't know, because there was no witness. [00:29:03] Speaker 03: Yeah. [00:29:04] Speaker 03: OK. [00:29:06] Speaker 03: Very good. [00:29:07] Speaker 03: That's all I have. [00:29:08] Speaker 03: OK. [00:29:11] Speaker 03: Thank you very much. [00:29:12] Speaker 03: This matter was submitted. [00:29:13] Speaker 03: I thought the arguments, again, were excellent in your briefs and your advocacy today. [00:29:17] Speaker 03: It's a super interesting issue. [00:29:20] Speaker 03: And you all made it particularly hard for us, which is your job.