In United States v. Hernandez, the 10th Circuit Court of Appeals addressed whether a private contractor hired for auditing purposes could be considered a 'victim' under 18 USC 1114 when assaulted while performing security rounds at a detention facility. The court analyzed whether the contractor was 'assisting' federal officers in their official duties, distinguishing between official duties and personal 'frolic' activities. The case illustrates that federal protection under assault statutes depends on whether the individual was performing government functions at the time of the incident, not merely their job description or contractual role.
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Courtroom 3 Argument SessionAdded:
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Hello.
That's the Honorable judges of the United States Court of Appeals for the 10th Circuit.
Hear the United States Court of Appeals for the 10th Circuit is now in session. All those having business before this honorable court may now be heard. God save the United States and this honorable.
>> Please be seated. Good morning.
We have a reasonable slate of cases this morning. We'll take them in order and probably take a break after the third third case. So with that, let's get started with our first case, which is 25-2084, United States versus Hernandez.
May proceed.
May please the court. My name is Joel Myers and I represent Anthony Hernandez.
With the court's permission, I would like to reserve two minutes for rebuttal.
I'm asking the court to reverse Mr. Hernandez conviction because on these set of facts, no rational juror could have concluded that the victim in this case was assisting a federal officer.
Extending the protections of 18USC 111 in a case like this would not further the protection of either federal officers or federal functions.
18 USC 1114 designates a victim as any officer employee of the United States or any agency in the branch of the United States government or any person assisting such an officer or employee in performance of such duties or an account of that assistance. Now whether someone qualifies as a federal officer is certainly a question of law but whether someone was engaged in the official duties or assisting that person is a question of fact for the jury. So they h how how does the how does the government then I are they allowed to hire a private contractor under your interpretation of the statute?
>> Well they did indeed hire a private contractor and that was core civic but it wasn't even is that okay?
>> Um yes I mean we have cases that obviously allow that to happen all over the country. I'm not, you know, asking a court to upend um the litany of cases, even cases that have been before this court where we have um private jailers.
That's not what we have here. I think a private jailer, I'm not up here today to try to to upend that. Um we know that the Marshall Service doesn't operate any facilities within the within the United States at I think it would be unworkable if we were to say if the court was to say that they can't hire any private contractors as jail guards.
>> If the if the Marshall Service can hire a private contractor, can't the private contractor subcontracted out and still have the protections of the statute for the people managing the jail?
>> I think it depends. I I can envision a circumstance under which that could happen, but on these set of facts, I don't believe so. um >> what what makes this these facts >> um a problem compared to just a another subcontractor relationship >> and that's where I think we need to look at the contract and what was the victim hired for. Um in this instance the victim was hired by core civic to do auditing and any other tasks that may come up. that the core function as he testified at trial and was written in his contract was the auditing of what Corivic was doing >> when he when he was attacked. Wasn't he engaged in um the activity the duties of a jailer?
>> Yes. Yes. He he was engaged in doing security rounds. Absolutely he was. Um but that was >> Does it really matter what his job description was on paper then?
>> I would think it certainly does. That that to me evidenced a personal frolic of his that he decided he was going to go do security rounds. What his official duties and responsibilities should have been limited by the contract. The fact that he then decided to do a core function of either the jail or the marshall.
>> Wasn't he asked wasn't he asked to do the jailer duties by his superiors?
>> That's what he says. He said he was asked by the private contractor there.
Again, in this case, core civic still two parties removed from the Marshall Service in this case. He said that >> was there any evidence he wasn't asked?
No, I mean all he did was he said that the warden asked him to do that that >> I mean because because a frol a frolic uh sort of suggests something more whimsical or the guard was going out and he said hey I want to go with you or let me tag along or sure there was no evidence other than the very limited statement that the victim in this case said that the warden of core civic private contractor asked him to help with rounds and he was indeed helping with rounds. I certainly will continue.
>> So, I mean, you're stuck with that, right? That's the only evidence.
>> Sure. It's hard to prove a negative, particularly when the other witnesses, the warden himself didn't testify at the trial, and I was stuck with the answer that the the victim gave.
>> Is is it your position that to be a person assisting um an officer or employee of the United States government um must have a contract?
No, I I think that would limit it too much, but must be operating at least pursuant to some contract and some um official role that that person has. I think here in this case it is way too ambiguous that the government is relying on just a catchall provision and perhaps as judge Carson pointed out some conversation of which details that we don't know that perhaps um Mr. the victim in this case was asked to conduct these rounds.
>> Does does the record indicate generally how the Marshall's service worked with this facility in transportation of individuals to court.
>> The Marshall Service didn't do any of the transportation. The transportation was conducted by the private contractor.
All I don't know ifration outside of of an inmate that was transported. All of it was done by the facility.
>> None of it by the marshall.
>> Correct.
>> Okay.
>> The Marshall service were never on premises. I mean, they would go there occasionally, but they were not staffed on premises at all. Were not responsible for any of the safety and security other than, I guess, the overall responsibility of people within its care.
>> What if this guy worked for a temp agency? What if what if they were short staffed at the jail and Core Civic didn't have a full-time employee to handle things and they got with a temp agency and said, "I need you to send me somebody out here to help us." I think again that it would be to find like what is that person out there to do? Is this a temp agency and give me a temp who's going to be a um a corrections officer?
Then I think it's okay. a temp agency.
Um, you're going to be the plumber and we, the warden and I have already agreed, well, you can go go along on the security rounds. That's what the marshals do and and if you get beat up, you're going to be protected by the federal assault statue. I think it really comes down to the the definition of what or if I was, you know, I'm certainly not going to be up there, but if there was a a rule to be made, I think it has to be defined by what the victim's role was.
before the assault took place. Why were they there? It's not a but for situation.
>> Presumably, the uh victim in this case could have if it wasn't part of his contract could have refused.
>> I would I would assume so, >> right?
>> Um I I guess so. I mean, wouldn't wouldn't the parties I mean, in in the in the realm of contracts, sometimes we look to the party's practical construction of the contract through their conduct.
And if the warden asked him to go do rounds because they were short staffed and he was there as solely as an auditor or something adjacent to that, I mean, he could presumably have said, "No, I'm not going to do it. That's not part of my contract." Sure. I I I certainly could have.
>> And if he was going to do it, if he said, "Okay, yeah, I'm happy to do it," that would we could infer from that that that was part of his contract.
>> Right. I I think it somewhat will undermine um any cabineting of where the statute goes to at that point and and cloaks any person who just happens to be there encountering something akin to a federal function and giving them this victim status um for things that were traditionally or very easily and often are handled at the state level. Um, well, you you could you could hypothesize situations where this could happen and it and it would be would be a frolic and outside of his duties where maybe he's there doing an audit and one of the one of the jailers was going around to do rounds and he just wanted to go and said, "Hey, can I come along?"
>> And then in that case >> And in that ca in that case, >> I'm not asking that question. I'm sorry.
he's, you know, not not engaged in a in a government function. Maybe he's just on a frolic then.
>> For sure. And I I think that's kind of what we have. I was thinking I was trying to think of of an analogy. I used one a trial. Obviously, it didn't work as well as I would have liked because I'm here. Um but thinking about if someone is just an intern um for the warden and they have a similar contract. I don't know what your internship's going to be. It's whatever I tell you it's going to be. And then he says, "You know what? go along with Lieutenant Pitsoule and do rounds. The marshals do that. It's clearly a federal function and that person is um assaulted. Um it takes me back to Fiola and like what is the statute designed to do? Is it designed to protect um federal employees and federal functions?
Certainly, we don't have a federal employee here. I hope that I at least will be able to convince everybody of that. Now what is the federal function?
I think we know in this case the federal function is security rounds and protecting you know someone who is so far a field and in this case a private auditor will call him and nothing more.
Um I don't see how that protects a federal function. But you know the statute you know at the end there's an or and it then the phrase um brings in any person assist any person assisting such an officer or employee that's pretty broad language in in the performance of the duties of those I think it's still limited by it is incredibly broad but to me the focus would be on the performance of official duties and that's where it needs to be determined what serves, in this case, the victim's official duties.
Is it designed by this catchall, this side agreement with a private warden who the Marshall Service had no um choice in in selecting for this here? I mean I think if we take us we take a step back you know I said earlier obviously they have to outsource these things but we have an outsourcing of the Marshall service to a county and then that county in turn outsources it to core civic we have no idea what that contract said that was never even admitted >> but you don't you don't that's you don't dispute that being okay >> no I don't I don't but we don't know the the terms of it perhaps there were limitations um preventing any subcontracting that they have we don't we don't know that and certainly wasn't you know my burden to bring that out made the argument before not trying to make that again but the point is is that subsequent to the outsourcing to corpic then core civic outsources it themselves in in this ambiguity and I'm not asking for um a you know huge rule as to what the the specifics are because in in a I don't need to in a case like this on the facts that we have before it Um, I mean certainly we don't have a federal officer. He's not law enforcement. He wasn't deputized in any fashion. Wasn't acting with a contract with the Marshall Service. Wasn't acting in cooperation or under the control of the Marshall Service. There's no involvement in the Marshalss. Wasn't even contracted as a corrections officer, which I think is the key distinction here. in situations where we have quote unquote um you know private citizens if you will who have been victims of assault they've all been contracted as corrections officers that's not what we have here the cases be sorry is any part of your position that the statutory expression any person assisting such officer or employee that uh officer or employee refers to a human being.
Uh so that the statute could be construed as the person has to be assisting a deputy marshall or a direct employee of the marshall's office.
>> I think it could be an agency. I think it can be an agency. I think that's been um decided. It doesn't need to be a specific >> individual employee. I think it can be an agency.
>> Was there a state investigation in this matter? Does the record indicate there was a state investigation of this matter?
>> I believe that it was referred to um I think the district attorney's office out there if I recall. I'm not certain.
Judge, >> you wanted to reserve some time.
>> Yes, I do. Thank you very much.
Appreciate it.
Okay.
Good morning, your honors. May it please the court, Maria Stitler, on behalf of the United States.
In this case, the victim JF was assaulted while he was conducting security rounds at a detention facility that held federal pre-trial detainees for the United States Marshalss. JF was only at that facility because of the facility's contract with the Marshalss.
JF was only conducting rounds in that unit on that day because the unit exclusively held federal pre-trial detainees for the marshals. And the inmate who assaulted JF, Anthony Hernandez, was only there because he had been ordered detained by a federal court pending federal charges.
Sufficient evidence supports the jury's decision that JF was assisting federal officers when he was arrest when he was assaulted. This court has recognized that cases like these require a fact-specific analysis and the cases no case will turn on any specific factor.
Defendant doesn't dispute that JF's actions that day, the security rounds were assisting the United States Marshall Service in their performance of official duties under the statutes.
I believe that might alone defendants's concession be enough for this case to to support the jury's verdict.
But instead, defendant challenges the fact that JF was a contractor and that he wasn't contracted to perform security rounds.
This limitation is unsupported by the statutory language, by the case law, by common sense. But moreover, it's also directly contradicted by the jury instructions that the juries were given in which they were instructed that the victim had to be they must find that the victim was then engaged in the scope of his official duties and not acting independently.
the official duties. Is that referring to um the contract between JF and Core Civic or are we looking at the official duties of a US Marshall guarding a facility >> under the statutory language the the official duties referred to the marshals but in the jury instructions as the court was given and and these were instructions that the United States didn't endorse but we we believe that they're helpful now in responding to defendants's argument The court did instruct that in addition to the victim um performing a duty that assisted the United States Marshall in the performance of their official duties, the victim also had to be then engaged in the scope of his official duties. And so we have two different sets of official duties that the jury was instructed on.
>> And and it's your position that answers the frolic.
>> Yes, your honor. the fact that the jury was specifically instructed on this point and specifically we can presume rejected defendant's argument about a a frolic.
>> But as I understand it, you you did not agree with that jury instruction at the time it was given.
>> That's right, your honor. don't think it's it's necessary under the language of the statute, but I do think it it helps to the extent this court is concerned about whether there was some sort of frolic, it helps put that to rest.
>> What does the record indicate how that jury instruction came about?
>> Um, I believe that the parties disputed this issue vigorously. um defendant moved for dismissal under rule 29 and then the judge in considering defendant's motion for dismissal rejected the motion but felt that that jury instruction was appropriate to to capture the um you know I think some of defendants's arguments and also some of the the the cases perhaps from out of the circuit. So, was it a theory of the case instruction uh that the court appeared to see as being endorsed by the defendant?
I I don't want to represent defendants's position here, but I think neither party suggested that instruction. I think defendant um disputed some of the language of that destru instruction, but of course, they're not disputing that jury instruction today.
and did not specifically object to that part of the instruction that talked about the official duties of uh the victim.
>> I I think that the defendant wanted the language not acting independently to be included in the instruction. Um and I I believe that and I I didn't review this closely before today. I apologize. is I think the defendant might have also proposed some some additional language and the court decided on not acting independently as a as a bit of a um a compromise between defendants's original conception and and and the language that in the government's position which was that none of this is necessary >> the defendant object to the instruction >> I think that the defendant >> but to the to to >> that part of the instruction >> I you know sometimes these these situations are fluid. I don't know whether the defendant lodged a formal objection, >> but of course the defendant did not challenge that instruction in his brief before the oral argument. So to the extent he did believe that that language is incorrect, we we think that it it would be waved. Um >> would would every employee in the facility be um covered by this provision? I don't think so because there was record evidence first of all that the facility held state um state state detainees as well and so um individuals who were there solely guarding state detainees who are assaulted by a state detainee would wouldn't be protected there'd be no basis for protection for that under the statute >> but I take it your position would be unless so instructed by the director of the facility >> of course your honor Okay.
>> Yes. And and we do have that uncontroverted evidence here. Um we also have testimony from one of the facility the facility investigator who testified that he frequently saw the victim conducting security rounds. And then of course jails are secure controlled environments. And it's I unlikely that you know jails are not really the right environment for a frolic because they are so controlled.
>> Does your unless proviso include cafeteria worker or the plumber or the medical staff?
>> What was did you meant the the what staff?
>> The cafeteria worker or the plumber? In in other words, um if somebody's in asked by the management to help guard inmates, are they eligible?
Are they protected by this statute?
>> Well, your honor, I think it it would always be a factual question that goes to the jury and perhaps as as it gets more and more separated from um what might be a realistic situation, the jury might start to >> doubt. We have an audit. We have an auditor. I mean he's he's less connected to the facility than the you know the cafeteria kitchen >> that that might but he was also an auditor with years of experience at BOP facility and so it you know it makes sense the jury would understand why he might be asked to step in and help out especially because the record showed that it was short staffed. What what about a maintenance worker that needed to uh be at the cell to do some repair that >> working for the facility? What about that?
>> You know, again, I I think that we are getting a little bit separate from the facts here, but I I think that there could be an argument that could be made.
>> That's what we do. We we rehypothesize.
I understand, your honor, and I I do think that, you know, there could be an argument to be made that they are performing a federal function and helping to to keep these facilities maintained for their um for their for the for the federal detainees that are there. And if they were assaulted by a federal duahini, I think you could analogize it to the case out of the second circuit where the handyman was was found to be performing a federal function because he was repairing a hotel room for um that was I think had been forfeited by the marshalss and he was attacked by someone living in the hotel there. So I I do think those are arguments that could be made. But but of course again it's it is a factual question at the bottom that would come to the jury and whether a jury would buy the United States argument that somebody who was there u maintaining the cell was was facilitating a federal function is would be a jury question. Um and I do think here especially when you look at the way this happened there were there were two people conducting security rounds that day. One, Lieutenant Bitsui was an employee of core civic and it appears right now the defendant is not disputing that Lieutenant Bitsui would be entitled to federal protection. The other person was JF and that day while they were conducting security rounds, both of those individuals were were performing the same federal function.
And there's no basis in the law in the legislative history history of this statute which is actually shifted from the employed by the United States Marshals to perform a federal function to to today which is just broad language any person assisting federal function. And of course this court's cases there's no basis to distinguish between those two individuals provide a a forum for protection for Lieutenant Bitsui and not for JF. So unless the court has any questions, I would ask that the court affirm the jury's verdict.
>> Thank councel rebuttal.
>> Yes. First I just want to focus on the Matthews case that um my colleague Miglo brought up and that was the handyman case out of the second circuit. Case is in opposite on the facts here. The handyman in that case was directly contracted by the United States Marshall Service in that case as well as the facility over which the handyman was performing work was a Marshall's facility. Neither of which are present here.
I know the court has looked for cases similar to this. Um sort of the clerks have looked for cases. There's no case.
>> But but you agree that that >> there is direct correlation uh with the expression federal function in the second circuit case.
>> Yes.
>> Yes.
>> There may have been contracts there >> directly that they're not here, >> but the federal function was the same.
>> Sure. I mean, just think if um some of the court securities officers downstairs were um restraining somebody and I decided to jump in and help restrain them without any contract whatsoever.
I'd still be performing a similar function as them, but I don't believe I should be protected by this, but perhaps some of the clerks >> Carson is frolic.
>> Exactly. Thank you. Um >> but they would appreciate it.
>> I'm I'm there for them. I'm there. Um whatever it takes, right? Um, federal protection and jurisdiction should not extend indefinitely. Submit that on these facts it would stretch federal jurisdiction beyond its congressional intent. Affirming a case like this also risks expanding federal law to criminalize conduct which can and historically is and should be regulated by the local and state level. Thank you very much. I always appreciate this.
>> Appreciate the argument. You're excused in the case is submitted.
>> Thank you very much.
All right, looks like you're ready to go. So, let's get started. 25-5139 United States versus Mims.
>> Good morning, your honors, and may it please the court Jared Gimmer on behalf of James Mims. I would like to try to reserve two minutes for rebuttal, but we'll see how this goes.
The question this court must ultimately answer is simply whether 2K2.1 B6B's four-level enhancement for using or possessing a firearm in connection with another felony offense applies when a defendant finds and takes a firearm during a crime which does not amount to generic burglary and that firearm plays no further role in the offense beyond being taken and carried away by the defendant.
and your honors probably picked up pretty quickly. My argument revolves around a textual analysis of both the guideline and the commentary which also then brings in the reasons for amendment that the commission used in 2006 to explain why it was creating the commentary at issue. Uh so both sides have cited Marufo which is a 2011 10th circuit case. The government has posited that Marufo actually completely obliterates my argument and I understand why it does that. There was a later unpublished case that essentially said as much. But MaruFo does two things that I think are very important here.
First, it talks about how we analyze the guidelines and specifically it says three things. We must interpret the sentencing guidelines according to accepted rules of statutory interpretation.
Two, we must follow language that is clear and unambiguous except where the language leads to an absurd result contrary to, as Maruo said, legislative intent. I suppose there's a combination of legislative intent and commission intent there. And three, when a term is not defined in the guidelines, we give it its plain meaning.
So, Marufo reinforces even emphasizes the textual analysis that we have to use when the guidelines commentary says that the enhancement applies in a scenario like this one when the other felony offense quote is burglary.
and then continues to reference burglary in describing the factual scenario in which the enhancement applies that functions as a clear clear and unambiguous limitation on the guidelines reach. It is specifically saying in this the guidelines broadly say that possessing a firearm in connection with another felony leads to the four-level enhancement. But that's a general statement and a key rule of statutory construction is that the specific prevails over the general.
>> But the commentary goes on to say that the firearm has the potential of facilitating another felony offense or another offense respectively.
>> Yes, your honor.
>> Why doesn't that um answer the the textual problem that you're addressing?
>> Well, there are two reasons for that.
One is one that I've already mentioned.
The specific prevails over the general.
And when the commentary in what I've cited as note 14A, we know that since the guidelines have been amended, it's now I believe 13A.
When the guide when the commentary makes that statement describing what it mean, what in connection with means, that's a general statement. And then it immediately follows that with a very specific statement. In this very unique scenario, when the offense is burglary and the defendant finds and takes a firearm during that burglary, even though the firearm plays no further role in the offense whatsoever, the enhancement will still apply, but it has created a very specific scenario, not a broad scenario.
I mean, wasn't that comment created in the context of court's finding that if you just came across a firearm during your burglary and took it and didn't use it that that wouldn't fit within this guideline?
>> Yes, your honor. There were two or three circuits on each side of that particular split prior to 2006.
But I think I mean but that that wouldn't that would suggest a clarification as opposed to specific treatment. Just a clarification to show how broad they meant the reach to be. I'm not sure I agree with that, your honor. And the reason I don't agree with it is because of the actual reasons for amendment that the commission gave.
When the commission gave its reasons for amendment in 2006, amendment 691, it said made two statements and I'll paraphrase the first one that the amendment addresses a circuit conflict pertaining to the application of this enhancement specifically with respect to the use of a firearm in connection with burglary and drug offenses. So even the reason for amendment is explicitly saying this is about burglary. the second statement which >> right whether whether the broad terms of the statute applied to burglary and drug offenses and some circuits had said it didn't and so they were making clear yes it does true your honor the the follow-up statement which is I'm going to try and directly quote the amendment provides that in burglary offenses these provisions apply to a defendant who takes a firearm during the course of the burger burglary, even if the defendant did not engage in any other conduct with that firearm during the course of the burglary. And I understand your honor's point. It was dealing with a circuit split. But if the commission had crafted this commentary with the intention that it apply every single time a defendant finds and takes and ultimately carries away a firearm as part of a felony offense, it could have used that kind of broad language. that would have encompassed the burglary problem it was dealing with and would have expressed actually we intend this to apply a lot further than even these courts were thinking.
>> Well, I mean, but that wouldn't I mean, arguably there are a lot of offenses where if you happened upon a firearm, picked it up and took it, it wouldn't in and of itself, you know, even be a crime.
It could be just finding something. I mean, that that's a that's a common uh defense used by felons in possession. I I found the gun. I was just keeping I was just keeping society safe from this random gun I found.
>> Some some people might believe it.
>> So, I understand your honor's concern.
It was dealing with a circuit split.
That's true. But they specifically chose to cabin in their language. They they chose burglary for a reason. And they actually explain, I think, why they've chosen burglary as part of the commentary itself. They're treating burglary as special because burglary is special. When we're talking about generic burglary, we're talking about breaking into buildings, usually homes, where people are likely to be present.
If someone breaks into a house or even a store, which was the case in Rats Loft, they broke into a gun store, uh there is a heightened risk that the perpetrator is going to encounter another person and they have found a gun while committing their crime and now they have a weapon to kill the person who found them.
So, they're singling out burglary because of its unique nature. And the commentary does not explicitly say that's why they're singling out burglary, but I think that is what they're getting at when they say crimes s these kinds of crimes because they're also including drug offenses in the commentary create a an increased risk, an increased potential for violence resulting from the finding and taking of the firearm.
And I the government mentioned a few cases throughout its brief that I may need to address.
So let's talk about Ratzoff and Morris briefly. The government uses that to discuss Stinson issue which I do need to address. I need to address Stinson.
Ratsoff and Morris both say essentially that this enhancement and the commentary associated with it are not inconsistent such that Stinson would prohibit applying the commentary. Both Ratzoff and Morris unambiguously involved actual burglaries. In Ratzoff, they broke into a gun store and in Morris, uh, the defendant admitted to breaking into a home or being a participant to an entry into a home where the guns were ultimately stolen. Uh, so part of something the government talks about, there's a series of cases on pages 9 and 10 of the government's brief where the government says this court has consistently upheld application of the enhancement on the grounds that possession of a firearm had the potential to facilitate theft or possession of stolen property offenses.
The problem is none of those cases that the government is citing involved the theft of a firearm serving as the basis of the enhancement. In most of them, it was actually theft or continued possession of a stolen motor vehicle and the person was found to have a gun in their possession when they got caught.
So there there's a slight difference there.
>> But why I mean why couldn't that apply here? I mean, if you stole some jewelry or stole a gun and someone was wanting to take it from you, you might use the gun to keep them from take taking it.
The problem with that, your honor, the government mentions the idea of double counting, and I I don't consider this a double counting problem. This is not impermissible double counting, but the act of possessing a stolen firearm is itself a felony offense in pretty much every jurisdiction. So, if I'm a felon and I'm prohibited from possessing a firearm, I am also committing a different felony by possessing a stolen firearm. So, now my possession of the firearm gets me two levels for possession of a stolen firearm. Plus, I was a prohibited person. As a felon, I possess the firearm in connection with a different felony offense, which is possession of a stolen firearm. So, I automatically get the plus four. It's we end up with both enhancements applying in almost every scenario where a firearm is stolen, whether by the defendant or simply possessed following its theft.
The challenge in some of this, and I need to go ahead and address Stinson because the government mentioned it.
Stinson is not as problematic, I think, as the government presents it. First, I need to point out Stinson's continued vitality is up in the Supreme Court, but it's still binding here. I recognize that. But the United States in the Supreme Court has essentially abandoned reliance on Stinson. They've said that the Kaiser standard is the correct standard when it comes to guidelines, commentary, analysis, and they actually the Supreme Court had to appoint Amikas to represent the Stinson position.
That's not necessarily entirely relevant here, but I wanted to bring it up. But Stinson, the the approach that I'm advocating does not require this court to find that the commentary contradicts or directly conflicts with the guideline text itself. The commentary is creating a very narrow and very specific application of the guidelines language to a unique scenario. when the offense is burglary and the defendant finds and takes a firearm, but the firearm plays no further role in the offense and it explains why it's created that very specific application. So, I'm not sure that they're actually contradictory. It is explaining the enhancement needs to apply in this very specific scenario because of the unique nature of burglary in my opinion.
>> And I see I'm at two minutes. If there are no further questions, >> yeah, you may reserve. Thank you, your honor.
>> Good morning, your honors. May I please the court council? I'm Lena alum representing the United States in this matter. Application note 13B and circuit precedent stand for the same proposition that when a defendant obtains a firearm during the course of a felony offense, the possession of that firearm has the potential of facilitating that felony offense.
Application note 13B, contrary to the arguments in appellent's brief, is not an exception to the general principle set forth in 13A. A firearm is possessed in connection with a felony offense when it facilitates or has the potential to facilitate the other felony offense.
We know this to be true for several reasons. First, uh, as Mr. Gimmer alluded Stinson Stinson says the commentary uh to the guidelines is authoritative as long as it is not clearly erroneous or inconsistent with the guideline that it purports uh to uh to analyze and Stinson also says that guidelines commentary can have a number of purposes. It can explain a guideline and it can uh uh among them it can explain a guideline or it can uh set forth circumstances under which that guideline applies.
13A explains the guideline. And it explains what the uh 2K2.1B now 7B means when it says possess a firearm in connection with a felony another felony offense.
It means facilitates or has the potential to facilitate another felony offense. 13b gives a specific application and explains and solves the circuit split that existed until until 2006 in the specific context of burglary. And we know that 13B is an uh is an application, not an exception, because as I think Judge Tempovich said, the last sentence of 13B says, the these circumstances warrant application of this enhancement because of the potential a firearm has to facilitate or or of facilitating another felony offense.
So the question is whether uh in contexts other than generic burglary, a defendant who obtains a firearm, whether his possession of that firearm has the potential of facilitating the other felony offense. Uh, I have not seen any case that suggests that under these circumstances 13A does not apply. So whether Mr. Mim's offense was thirdderee burglary under Oklahoma law or was lararseny by of firearm under Oklahoma law. Both of those are offenses in which a defendant can obtain a firearm and that firearm will have the potential of facilitating uh uh the other felony offense. as the 11th Circuit identifies in Brooks. That is because a defendant who obtains a firearm and is aware of that firearm's presence would ha at least uh be tempted to use it if the circumstances of the offense uh uh require him to defend for instance here the stolen property. Uh, and I think the example in Brooks is if Brooks had encountered the police or the gun's rightful owner, that that firearm had the potential of facilitating his theft offense. Um, Mr. Gimmer is correct that most of the 10th Circuit cases on this point do not involve a a theft of firearm except for um Morris, which is in fact a burglary case. Howard is an unpublished case uh by this court that uh did involve a defendant alleging that uh 2K 2.1B then 6B could not apply because the firearm was the object of a theft. And so that is the closest a 10th circuit case to these facts in which uh that uh uh the court upheld the application uh applying Marufo of that enhancement.
However, um the fourth circuit in Laramore and the 11th circuit in Brooks both uh confront situations very similar to this. And without addressing and without the need to address uh appellants's argument about uh generic burglary, both courts like Howard concluded that under application note 13A, a firearm stolen during a theft uh a I believe a a athletes precisely, but all of those involved non- burglary thefts and uh support the application of this offense uh without resorting to uh assessing whether the the underlying offenses were generic burglary in all cases because the possession of a firearm has precisely uh addresses the concern that is embodied in the 2006 amendments that when a defendant possesses a firearm during the course of a crime, it has the potential to facilitate that crime.
If there are no further questions, we would rest on our briefs.
>> Right. So, rebuttal time. Thank you.
>> Yes, your honor. Thank you. I'll quickly touch on Maru because the government cited Howard. Howard basically disposes of this issue in what's essentially a single paragraph. It's a plain error case. It says Marufo constrains its analysis and that it therefore must conclude that stealing a firearm, regardless of whether it was a burglary or not, satisfies the four-level enhancement.
I disagree with Howard fundamentally for obvious reasons, but also Maru is a very different case. Maruo, the individual had been accused of murder, at least one count, and shooting another person, and he was ultimately acquitted of that, but he was found guilty of evidence tampering by disposing of the firearm that had been used in the shooting. And so he was already in possession of the firearm when he got rid of the firearm.
And so the he was already in possession of the firearm when he committed the crime of tampering with evidence which was getting rid of the gun. So again, Maruo really does not speak to this idea of how does the 14B or 13B, depending on which manual we're using, how does it apply given that it starts by titling itself when the other felony is burglary?
I believe at its core the specific has to control over the general and the guideline provides a general idea. The commentary then explains that general idea with another general idea the facilitate definition. It then follows that immediately with a specific constraint and I believe that specific constraint controls in this case your honors. I see I am out of time.
>> Thank you councel. We appreciate the arguments and the case is submitted and council are excused.
All right. Next up is 25-1245 United States versus Seagal Beret. Mr. Moan.
>> Thank you, your honor. And may it please the court. Rajie Mohan for for the United States. I will attempt to reserve three minutes for rebuttal.
This court should reverse the district court's grant of Mr. Sagala Beret suppression motion and it can do so on two grounds that are undisputedly preserved.
First, Mr. Sigala Beret's failure to present any evidence of insurance by itself established probable cause under any reading of the failure to present provision in section 3A of the insurance statute. Whatever immediate evidence means the reality here is that Mr. Sagala Beret provided no evidence of insurance.
Second, that failure separately established probable cause to believe that Mr. Sagal Beret had operated the car without insurance under section two of the statute. Now these two grounds do not implicate any of the arguments that Mr. Sagala Bray says are waved. But I do want to address preservation from the start. And I'll start by trying to explain why the interpretation that we are advancing on appeal is the same interpretation that we advanced below in the district court in disputing Mr. Sagala Beret's argument that an ongoing intent to comply with an officer's request satisfied the statute. The government made two key points. First, that this notion of an intent to comply conflicted with the statute, which after all required immediate evidence of insurance. And second, that the statute structure confirmed the point by providing a mechanism for people to have their charges dismissed later on if it turns out they actually have insurance.
And I think with that context, the government's reading of the statute did contain a temporal limitation. That after all was an ongoing intent to comply did not satisfy the statute. and and you you um define immediate as encompassing a temp temporal requirement.
>> That's correct, your honor. I would define it as without delay. Um I do not think that necessarily means 1 second or 5 seconds. I do think that tolerates a reasonable opportunity to comply with an officer's request. Um but I think that a reasonable officer could conclude that that opportunity had passed here.
>> Five minutes. I mean, and the owner of the vehicle, she was still fiddling looking looking looking for, you know, as I interpret the record, she's still looking on her phone and see if she has some, you know, proof of insurance and not quite sure how you how you draw the line on immediiacy, but um, you know, you you have a glove box that's stuffed with a lot of junk and takes a while to find your insurance card. Sure, your honor. And >> legal question, jury question, >> you know, I think it is ultimately a, you know, I suppose there is a legal question of the interpretation of the statute that exists sort of irrespective of the facts. For example, whether immediate means immediately or direct.
And I think once you have that interpretation, whether the facts satisfy that standard would be a question for the jury. And for probable cause, it would simply be a question about whether a reasonable officer could find the circumstances sufficient to make out a violation. And let me try and offer a little, you know, some thoughts on where we draw the line under our interpretation because I do think it would depend on the circumstances. I think if after five seconds someone says, "I don't have any evidence." I think you would have probable cause at that point. In contrast, if after 5 seconds someone was still looking in the glove box, likely no probable cause. But I do actually think after say a minute or two of looking in the glove box, you would have probable cause. And I think if you actually watch the body camera footage here, we can throw these numbers around 1 minute, 2 minutes, 5 minutes.
Um, but I think if you actually look at the body cam, it is a fairly reasonable opportunity to comply with the officer's request and certainly enough time for Miss Sarmento provided one incorrect document during that time period.
>> Let let me ask you a question about what some some facts that are um your opposing council's position is that you didn't bring them up below, but I'm just curious if the district court had these facts. um before it. And th those facts would be production of the wrong insurance card, >> statement that they didn't think they had the proof of insurance, and then this wrong plate for the vehicle uh coming to light. What what was the district court's knowledge of those facts, whether they were strenuously argued or not? So the district court found each of those facts in its finding of facts section. In terms of its actual analysis, it did not specifically mention those facts in its legal analysis for probable cause, but it did understand, as I think everyone agreed, that probable cause rests on the totality of the circumstances.
>> Okay. So, so any suggestion that the district court was unaware of those facts would be incorrect.
>> That's right. Okay. And let me also try and explain why we have not waved any reliance on those facts. And I think that our theory for why probable cause exists was the same below as it is on appeal. Namely, that it is Mr. Sagala Beret's ultimate failure to produce any evidence of insurance. That is what establishes probable cause. And I think these additional circumstances you mentioned, Judge Carson, go to explain why a reasonable officer could conclude that that act was unlawful, particularly given the district court's understanding of the statute. And I think that that consistency in theory is what distinguishes this case from United States versus Hernandez, which is the lynch pin of Mr. Sagalet's waiver argument on this point. In Hernandez, the government's position below was that four particular circumstances established reasonable suspicion. On appeal, it conceded that those four circumstances were not enough, but argued that reasonable suspicion existed when you threw in a fifth circumstance.
And so, I think the government's explanation in Hernandez for why reasonable suspicion was different below than it was on appeal. And so, it did amount to a shift in theory that is not present here. I mean, and your position would be that under under a totality um argument that these three facts plus the the just ultimate failure to not stick an insurance card in the officer's hand, cut off the time to look.
>> That's right. Or at least a reasonable officer could so conclude. And I think that's a point I want to emphasize is that the probable cause standard does not require certainty of guilt. So even if there may be some questions on the margins of what the statute means or whether the circumstances here were sufficient, I would emphasize that probable cause is a low bar. It requires only a fair probability and requires far less than certainty of guilt. Um, turning to the merits, I I would just make a couple of specific points on the application of the probable cause analysis here. And I do want to address this point raised in Mr. Sagala Beret's reply brief about whether there was any specific request made of him. And here I would point, as we did in our reply brief, to the district court's finding at page 123 of the appendix, which was that when officer Taylor returned to the car the second time, his request was more general. And I think that's also borne out by the body camera footage.
And we've conventionally submitted that as part of the appendex at document 18-2. And I would specifically point to the 5 minute 20 mark where you can see officer Taylor engaging with Mr. Sagala Beret about the incorrect insurance document and I think at one point Mr. Sagala Beret himself says my bad bro which I think is an indication both that he understood the request to be made of him and also an admission of failure even under the district court's interpretation and certainly by the time of the search about a minute had passed between that return to the car and the actual search and I think that was enough time to establish probable cause especially when you account for the circumstances that had occurred before and the last point I would make in terms of the probable cause analysis is to focus a little bit on the operation provision of section two of the statute which again the government undisputedly preserved. Um below the government argued that if the video is played at trial under the statute it would permit an inference of guilt for operation without insurance.
And my point here is that if that inference is good enough for guilt at trial, it is certainly good enough for a reasonable officer to have made for purposes of probable cause. And I think that is another way that this court should reverse the district court's grant of Mr. Skagalup's suppression motion. And if there are no further questions, I would reserve the remainder of that.
>> Did the record reveal if there was um in fact insurance for this car and um she just wasn't in possession of it or wasn't in the car.
>> So when Mr. In the briefing on the suppression motion, so after the case had been indicted and litigated, in that briefing, Mr. Sagal produced as an attachment to, I believe, his reply evidence that the car was in fact insured. So, it was insured.
>> Thank you.
May it please the court. I'm John Grillius on behalf of Mr. Sagala Beret.
The only relevant question before this court is whether the district court correctly concluded that Corporal Taylor lacked probable cause to arrest my client for violating Colorado's proof of insurance statute based solely on the fact that he never produced proof of insurance during this stop. And on this question, the district court got this answer correct. Viewing the light in the most favorable to the district court's order, we see that the off or corporal Taylor did not have probable cause to conclude that my client or Miss Sarmto for that matter could not provide proof of insurance from somewhere inside that car, be it the glove compartment or center console or from their phones.
Now, here are the relevant facts that militate against or or essentially undercut the government's argument.
First, Miss Sarmento said she had insurance and Corporal Taylor then asked her to look for it on her phone. When he asked her to look for it on her phone, she did not respond that she did not have it on her phone. She didn't say anything about that. She started to look for it. When she did start actually checking on her phone, as Corporal Taylor recommended that she do, she only had about 30 seconds or a little less than a minute of time to look on her phone before that search was cut off and she was pulled away from the car. And so there was no probable cause at the time that the search was or the the search for the documentation was cut off to conclude that there was no proof of insurance available readily available in that car or on their phones. Now, >> well, when in that sequence did you make the statement? I don't think I do.
>> Yes, your honor. Um, first of all, of course, it's my position that the government failed to preserve these three factors, and I'll get to that in a moment. But these additional three factors >> in in connection with the sequence of the facts as you were citing them, when in that sequence did that occur? So that happened first of all when Corporal Taylor asks, "Do you have proof of insurance?" or something to that effect.
She says,"You know, I don't think I do."
So there's two things about that. First of all, that's an equivocal statement.
That's not, "No, I do not have it with me." It's I don't think I do. That's equivocal. And it's also important, like I said, because >> was borne out by the facts as they happen.
>> Well, I don't agree with that, your honor. We don't know that it wasn't on her phone, for example, or in her glove comp in in the glove box or in the center console. She never got to check all those things. We just don't know.
Her search was cut short. And so that is part of my argument is why we don't have probable cause here because she wasn't given the time to reasonably search areas where we maybe expect to see proof of insurance.
>> I mean, how long how long can she look?
Well, your honor, I I I would dispute the government's reading of the statute on on the temporal thing, but I think that there is a sort of reasonleness standard that's probably baked into it, but I think what we would have is I think the statute's geared towards making sure that we carry our insurance with us when we drive cars. That's kind of the point is to be able to prove it up to the officer that we are insured. So, I would think that it you would develop this probable cause when it becomes clear to the officer that there's probable cause that it's not anywhere in that vehicle readily at hand or on the phone readily at hand because the statute does permit it to be on the phone. Um, I don't think that it strictly imposes a temporal limitation as the government argues. Um, I can say that for a couple reasons if the court wants me to get into that.
Could Could they say, "You know, I've looked through my phone and I've looked in the glove compartment and I've looked in the console and I looked up on the visor, but I didn't see it. Let me look under the seats.
Let me look in the trunk. Let me look under the back seats. Let me look in the pockets in the back seats." I mean, do they get to search the whole car?
>> Your honor, I think under your hypothetical, that's probably going a little far a field. And I'm not going to dispute that, you know, a motorist can sit there and think of all these hypothetical places like the wheel well or the spare tire. But >> you you agree, don't you, that that they do have to produce the evidence of insurance, something either an image or a card or something like that.
>> That's correct.
>> Okay. So, if the officer asked uh the driver or the passenger, do you have insurance? and they said yes, but they were never able to produce an image or a card. The yes doesn't get them anything at the end of the day. At the end of the day, that's that's correct. If the if they're ultimately unable to after given a reasonable chance to search places where we would expect it to be, sure, it might be at home and that's a violation under uh 3A. I don't disagree with that.
>> Um but we don't have that in this case.
Well, let me let me ask you another question and and let's you can you can argue about your waiver here in a second. I want you to let's just assume these facts are on the table. If if the officer asks um can I see your insurance and the person who is likely to be in possession of it says I don't think I have it and then they rifle through things for five minutes. I mean, doesn't the I don't think I have it plus five minutes of looking suggest that they're never going to find it to a reasonable officer?
>> I don't know. I think that would certainly depend on the circumstances.
If if somebody is within that five minutes clearly have searched the places where it would reasonably be, glove compartment, center console, their phone. Perhaps that's true, but we don't have that in this case, your honor. Um the government keeps referring to this five minutes, but as the district court correctly determined, we don't count the full five minutes against the search. Um what had happened was uh it was about a minute a so within about a minute, Miss Sarmto produces an insurance document.
The officer says, "Well, I'll go check this out. Let me see." And so during that next several minutes while this officer is running this, we don't expect her to be searching for the insurance document that she thinks that she's provided. there's no sort of uh anything in the record that would show that she has this obligation or that she was searching for that. In fact, when the officer comes back, he then again asks her, "Do you have proof of insurance?"
So, he still thinks that it might even be the case that she might have it. And it's only then that she starts looking on her phone, which is where Corporal Taylor told her to look.
And so, I don't think under the circumstances here that we have probable cause. This just was not a reasonable amount of time to search under these circumstances.
>> Well, we look at this through the context of the statute. The statute says present immediate evidence.
Now, now you say that it's not have a temporal u meaning and you say immediate means direct evidence.
How how many when we talk about direct evidence, we say direct evidence. I haven't heard anybody uh equate direct evidence with the expression immediate evidence.
>> Well, your >> on that I just don't understand your position on that.
>> Well, your honor, to be clear, there's there's two theories in our answer brief. one is direct or there's a proximity and like it refers to proximity. Now the reason why immediate doesn't have the temporal quality that the government says it does well there's two reasons really why one is the immediate uh having temporal quality is not compelled by the plain reading of the statute and two the plain reading of the statute actually would foreclose it.
So let's start with the first. The government uses black's dictionary as the source for its definition. And it says that under black's dictionary it means you know instant or without delay.
But there's two other definitions for that uh um for the word and one it refers to direct like direct causation and one refers to temporal or uh not temporal but just physical proximity. So the plain language doesn't compel it its reading. But I say that also because what we're dealing with here is an adjective. Adjectives modify the noun that follow. And under a plain reading of a statute, we have to read it in the in you know under common rules of grammar and you know and within the context of the statute. Now if the government says that it takes on the form of an adverb basically modifying present and that would be reading it grammatically nonsensically and we can see in common parliament we do use the term immediate in in cases where we're not even talking about temporal qualities my immediate supervisor uh possession is immediate uh control uh um >> so that it has to be your position that a reasonable officer not this officer But a reasonable officer is going through all these gymnastics with the word and the placement of evidence and is it an adverb or is it an adjective?
Is is that reasonable to expect a reasonable officer to do that?
>> Well, your honor, that's not the question before us. The question before us is whether there's probable cause under the statute. Um, and if we have a case where the officer truly is wrangling with an ambiguous statute and that is the basis for the arrest for a mistake of law, then maybe we do fall under the Hind case. But that's not what we have here. The officer here never did make that mistake of law. So that's not really before us. This officer wasn't wrangling with the statute. This officer wasn't even going to arrest either person for violating the statute.
Couldn't couldn't the statute have um couldn't we accept your position and the government's position that the media has both a temporal um aspect and a physical immediate location aspect. And there's really two two ways you could violate the statute. One is by taking too long and the other is by not having physical possession. Well, your honor, I I could see where the statute in sort of the temporal sense does incorporate a reasonleness uh standard. I don't necessarily disagree with the government in terms of sort of that broad interpretation, although that really wasn't the interpretation I took it to mean in its briefing, which was basically immediate or instantaneous.
Um, be that as it may, I think the the district court was certainly operating under that rubric when it in when it ruled and found that this was really not a reasonable amount of time to be given to be looking for proof of insurance.
And that makes sense. I mean, you know, think of situations where maybe you borrow a friend's car or, you know, like my spouse, I don't always know where she keeps her proof of insurance in her car.
I know where I keep it in mine. A friend, I I I might not know. So, it's going to be >> maybe we have a maybe we have a duty under the law. And this has reminded me um as I'm driving south from here that I better have my uh insurance and registration close by.
>> You're driving your clerk's car that >> that's right. I better I better make sure they're insured.
>> Well, certainly, your honor, but you know, to the point, I mean, we we do get a reasonable amount of time to search for these things. I think you know the government says uh absurd results are not factored into the plain language or the the cannons of statutory interpretation that's just not true. The synthetic case that it cites if you read the whole paragraph from which it cites it shows that at bottom we avoid these absurd results.
>> Does it does it really does it damage your case? Um I I won't uh use any any stronger language than that. If if there's no waiver and if um we throw facts into the mix like the wrong plate, the wrong insurance, and the I don't think I have it.
>> No, your honor, I don't believe that that moves the needle. Um the I don't think I have it, I've I've addressed. Um and certainly under the circumstances, it's equivocal. She started looking for it. Corporal Taylor then mentions the phone. She says nothing in response that like I don't have it. the giving the wrong uh insurance. The government says, "Well, that's ind indicative of bad faith." Well, no. I mean, she made a mistake.
>> Well, it could be. No. Well, you're you're drawing an inference in her favor.
>> And that's what we have to do on appeal is draw the inf the reasonable inferences in favor of the district court's ruling, your honor. And so, the reasonable inference that we can draw there is it was an honest mistake. When Corporal Taylor comes back to the car uh says, "Do you have proof for this car?
you've provided me uh insurance for it was a different Ford with a model E like escape or something and she was surprised and so the the inference to draw there is oh sorry my mistake and then certainly the mismatch plates you know that's not before the court of course but that sort of has a 404besque flavor to it but it doesn't bear on whether this particular car is insured and again she said she had insurance and I want to point out too that the government only argued the mismatch plates theory below with respect to the armed and dangerous.
>> Did Did she say she had it?
>> I think she said the car is say >> yes, I do have insurance.
>> No, I misspoke, your honor. She didn't say I literally had it. She said it is insured. And so the district court when it was actually addressing the other uh issue below, which was the terry the the frisk for armed and dangerous. The government argued that theory that the mismatch plates showed that this was dangerous. And the district court downplayed that saying, "Well, no, she said it was insured. She said it was her father's." And so I think that, you know, viewing that in, you know, taking the inferences in the most light favorable to the district court's ruling. No, I mean there that the the there are plenty of permissible inferences to draw from that.
>> Let me ask let me ask you another question. So um it's not really her duty. He was the driver, right? The defendant was the driver.
>> It's it's her duty in so far if she's the owner or oper or owner, excuse me, but it's the duty once She's not. She said it was her dad's.
>> Fair enough, your honor. But he wasn't asked until the second time around, and that's only when his duty to provide it would have been triggered.
>> And that actually comes from the ton case itself to UN. Um, your honors, I see I'm almost out of time. Um, I just respectfully ask that this court affirm.
>> Thank you, councel.
Let me ask you a question right off the bat here, following up on our last deal.
When he was asked the second time around if uh he could produce proof of insurance, what was the answer?
>> The defendant. So the second time officer Taylor I believe asked um one moment um he was asked officer Taylor said do you have any insurance for the right car and cuz this is for an F-150 not the expedition. Mr. Armyto started to look on her phone. Um Mr. Officer Taylor showed the incorrect document to Mr. Sagala Beret and is sort of explaining to him why it's wrong. And at one point Mr. Sagal says, "My bad, bro." Um, so I don't think he necessarily sort of directly said whether or not he had insurance, but I do think a reasonable officer could interpret the my bad bro as some sort of um concession that there had been a failure already. Um, >> or at least a non-answer.
>> Correct. Certainly no no insistence that he did have proof of insurance. Um, I I want to make a couple of points about the interpretation and I I would point out Colorado's model jury instructions which I think support a temporal limit.
And as I understand Mr. Sagal's argument, I think he sort of reads some requirement in the statute that an officer has to allow an owner or operator to sort of exhaust their search. And I think that doesn't make sense. one in a world where lots of people have cell phones and in the context of a statute that expressly permits proof of evidence by cell phone.
Um I and in conjunction with a provision that says that if you don't produce evidence, you can have the charges later dismissed if you actually have it. And what I think that demonstrates is that you don't have an unlimited time to be able to come up with evidence. um otherwise there would be no need to have this mechanism to have the charges dismissed. I would also point out that I don't think the district court actually adopted Mr. Sagala Beret's interpretation that you just heard. The district court's point was more about failure um whether the act was deficient or unsuccessful or fell short of achieving something hoped for. And I would submit that the provision of the incorrect document by itself amounted to failure under the district court's definition. And that regardless of what happened next was enough to reverse. And unless the court has further questions, that's what I would ask the court to do.
>> Thank council. Um council are excused and the case is submitted. Court will take a recess.
Yeah, they had a lot going on.
Thank you.
Good job.
Jesus.
Awesome.
Well, this is one of those Yes.
insurance.
I'm sure Let me see.
United States.
>> Please be seated.
All right. Next up is United States versus Collins 25-7017.
Good morning, Parent Toronto. On behalf of the appellent, John Collins. In his appeal, Mr. Collins raises >> move microphone up so it's right in front of your >> Yeah. Is that better?
>> That's better.
>> Okay. In his appeal, Mr. Collins raises five claims of error. one of which the government agrees warrants vacature of his sentence and remand for resentencing. Specifically, that the district court aired in failing to consider uh whether Mr. Collins's federal sentence should run concurrently to his then anticipated state sentences for the same conduct on charges. Uh excuse me, I plan to address the remaining arguments um in the order they appear in the briefs, but I welcome questions on any of our claims.
At trial, the government proved that Mr. Collins seriously abused and neglected his stepsons. What it did not prove was that at the specific moment that he hit JM in the head with a pipe, Mr. Collins intended to kill him. The government had to prove that at the moment of the pipe strike, Mr. Collins specifically intended to kill JM. Specific intent to kill means a conscious desire to cause death. It's not the same as expected harm or recklessness with result to harm.
>> Okay. So, I know you're going to disagree with me because of my choice of weapon here, >> but you you would agree that if it was a gun and I pointed it at you and uh whether I actually meant to or not and pulled the trigger and killed you that my intent to kill could be presumed.
>> Yes, I think so.
>> Okay. And I did the most dangerous thing I can do is I got on West Law myself and did a little bit of research in state court databases and found a lot of cases. I'm I'm not going to represent my search as exhaustive, but cases with bats, pipes, mallets, hammers, where uh courts had found that um striking someone in the head with those things uh could be could in and of itself be evidence of an intent to kill.
Do you disagree with that?
>> I do. Um and I think it's because of the the barness of this record. So, um >> Okay. But just as a matter of you you don't disagree that if I walked up to you with a piece of pipe and whacked you in the head with it that and it was a clear strong blow that from that we could we could take evidence take it as evidence of intent to kill. I think if you had Yeah. a metal pipe, a heavy one or something substantial like a bat, um you aimed at my head, you swung through and you uh not just with arm strength or, you know, in the course of a scuffle. Um and you were directly aiming at my head. Yes. Then I think maybe we could infer spec infer specific intent to kill.
>> What if I what if I took your head and slammed it into the pavement?
I uh possibly, your honor, I I think that >> some cases say yes.
>> Yeah. I mean, sure. I think that these uh those types of examples though are not represented in this record at all.
The only mention of a pipe in the entire evidentiary portion of the trial was when defense council said, "Jam, do you remember anything about a pipe?" And he said, "Yeah, my dad just knocked me in the head with it." That is a direct quote. Not metal. Not my dad took it, swung it through with the full force of his body. He was aiming at my head.
We're missing all of that. And I don't think those are reasonable inferences from the record. What we do have is that JM had no skull fracture, no brain injuries. Um, and if given that we don't know anything about the nature of the um the act itself, we kind of have to look at the injuries.
And here we have superficial lacerations um that while they were bloody uh don't weren't um life-threatening. And if you did swing at a child with that kind of force that would reflect intent to kill, you'd think that you would hurt you would break their skull or hurt their brain in some way. And we don't have that evidence here.
>> Well, he was charged with attempted murder, right? Mhm.
>> And you know, I I swing a pipe or a baseball bat at your head and the victim moves the last second. So, gets a bruise. Not not life-threatening. Um, but you can still infer that there was an attempted murder there. And, you know, but for the grace of God, the victim avoided a serious blow.
>> Absolutely.
>> Absolutely. But we would need evidence of that in the record that there was a a swing and a miss or that there was a swing and JM, you know, put his hands up or moved away. He said, "No, my dad." He said, "Yes, my dad just knocked me in the head with it." That's all we have.
So, I agree. If you if you swung in a and you missed and so there's no injury, okay, but we don't have any evidence that he was aiming at the head versus just any body part. Grabbed whatever he had, hit it. We just don't know anything. And that's what's the what was the government's burden to prove and they didn't prove it up here.
>> JM was called by the prosecution.
Correct.
>> Yes. Yes.
>> What was their examination like about on this as to the blow to the head? What did they ask? What did he say?
>> They they tried pretty hard to get him to say that his head injuries were caused by a pipe. And he consistently said they were caused when his dad kicked him across nails. They asked him, "Hey, did your dad hit you with anything else?" But his foot, no. He said, "No, they didn't." Uh, and he didn't remember anything else. And so I think they were expecting him to say that he was hit in the head with a p a metal pipe and he never said that.
>> On direct >> on direct, >> but on cross he did.
>> Not a metal pipe. He said defense council again asked, "Do you remember anything about a pipe?" And JM said, "Yeah, my dad just knocked me in the head with it." That's not a metal pipe.
>> Well, you're not you're not quibbling, you know, whether it was a PCV pipe or a metal pipe, are you? I mean, a pipe.
>> Yes, absolutely. I don't think it's a reasonable inference uh in this day and age that it's a, you know, a cast iron metal pipe. Uh pipes can be made out of tons of different materials. There's there's no indication that it's a metal pipe.
>> Was there redirect examination of JM by the prosecution? Uh your honor, I think so, but not on this topic. Um this is >> not on this.
>> You can look through the entire trial.
Uh and I have and there this is the only mention of a pipe.
>> Okay. And and there was no mention of a pipe either in the question to JM by the prosecution or the answer by JM to the prosecutor's question. Pipe was never mentioned.
>> Uh no, but that was their burden. If they wanted to elicit that information, they needed to elicit it.
Well, but but it happened in their case in chief when he when he responded to the uh his his Collins's lawyer's question. It's still in the case in chief. Sure.
>> That he was hit with a pipe.
>> Yes. Yeah. Yeah. He did say that. Um >> and and what he didn't use the word hit.
What what did he say?
>> He said, "My dad just knocked me in the head with it."
>> Knocked him in the head.
Um, that's that's it for this this entire trial. It was the government's burden to prove that >> was was the nature of the evidence on on the beating and the dragging across the floor and the kicking across the floor, whatever happened. Was it all contemporaneous? Was he describing this as happening all at once?
>> The evidence is a little mixed on that.
Uh, this happened over the course of four days and um the the timing is quite unclear. it to me. Um, >> if if we had to draw an inference in favor of a jury verdict, would we would we say there was sufficient evidence to do that as as this a lot of this being contemporaneous?
>> Yeah, I think it doesn't matter too much um because all of the evidence is all of the injuries and the acts taken are consistent with an intent to punish and hurt, but not an intent to end JM's life. So, while cumulatively I think these injuries were ultimately life-threatening, they did all happen over the course of four days, none was the kind of injury that an adult would inflict on a child if he was trying to kill him with that opportunity.
>> Okay. What did did was there any differentiation in the types of beatings on any of the four days? Day one differed from day four or anything like that?
>> It's not clear to me from the record. It seems like it was they were walking him around the property trying to find this money um and were hitting him kind of on all parts of his body across the four days. seems like the last night things escalated, but that's all I know.
>> In JM's testimony about uh the pipe, is there anything there that you can infer that that was on the fourth day versus the third day or what?
>> I I don't think so. Uh it seems incredibly vague um about when it happened, beginning or end in this whole sequence. It also didn't seem like the focus Jam's focus of what caused his injuries generally um it it really was in passing. So, no, I I don't think we can know what time it happened.
>> But as to what actually happened in the beatings, the only eyewitnesses were Collins, his wife, who had also been charged, JM >> and RM >> RM for some but not all. Yeah, >> those are the only four eyewitnesses.
>> Yes, as far as I know.
>> And so these other witnesses, the friends that were staying there, that they're just their testimony was only about what they observed as to the injuries.
>> Uh yes. Yeah. Yeah. Um and and one of them testified to what he heard, this sort of yelling between JM, uh Miss Collins, and Mr. Collins. Um but he he didn't say, "Oh, I heard a blow or anything like that." He heard he heard the yelling and the scuffle. But um uh >> I I had a um Go ahead.
>> Another evidentiary question, and this was on the victim's Indian status.
>> Yes.
>> And um and I know we've had some recent case developments in that area, but >> Yes.
>> Um >> I just had a question about the record.
Um >> and Is is it correct that um the mother, Mrs. Collins, testified that she was Indian and that her children were also Indians as part of her testimony?
>> No, I I don't think so. Uh unless I misunderstood something in the record, I don't think she directly testified to that. I think Miss Smith, who was a DHS representative, said Miss Collins told me that her kids were she was Indian and her two sons were.
>> And did she testify that the children had tribal cards, though?
>> Uh, no. She she said they were members of the Chakaw Nation. Um, but she didn't say they have tribal cards. We have the CDIB. Um, so no, that's not my understanding. Why wouldn't that be sufficient evidence to overcome the other, you know, the hearsay problems with the other pieces of evidence?
>> Well, first, um, the inquiry on prejudice for third prong isn't whether the remaining evidence is sufficient for a jury to convict, it's whether with taking out the inadmissible evidence, whether it was reasonably likely to affect the verdict. And I think that is pretty clear here. But answering your question directly, I think even though it was admissible hearsay, this is secondhand testimony that's um not official from the tribe about recognition. Um it has the same sort of secondhand problems that are attendant to hearsay. Um there was a question about Miss Collins's credibility throughout the trial. Um but also it's just not direct uh confirmation from the tribe, which is why the government typically gets these documents from the tribe. They >> But that go that goes to wait, right?
>> The things you're saying right now go to wait.
>> I think they they are they go to whether the evidence that was inadmissible um really had a substantial effect on the jury's verdict here. And I think it did.
>> Okay. Let I I want to ask you a question about this this whole thing this whole here. First first off on on on the plain error argument. Um the two cases that we decided were not decided on plain error, right?
>> Correct. Okay. So, at the at the time this this air was not plain or obvious.
Um, and so that that troubles me a little bit. I know you have a response to that. But the other thing that bothers me is is the nature of the evidence, this hearsay evidence when when it's not objected to.
Because it seems to me the idea that we're going to find plain error and reverse cases based on on on hearsay is putting the trial judge in a terrible position because the trial judge is going to have to sit up there and listen. There's a lot of hearsay. Tons of hearsay comes in in trials and uh the judge does not sit there and say, "Oh, stop council. I know there's no objection, but that's hearsay. We're going to strike it from the record. Um, ask another question.
It It just It just doesn't happen that way. And we're in a situation here where foundational objections, hearsay objections, best evidence objections, the district court is going to have to decide all of those suante or be reversed.
So um I want to address uh I'm going to run out of time in my answer. May I answer the question?
>> Fully answer question.
>> So on the first question about these errors weren't plain at the time of the trial. This court has said repeatedly and recently said in Venjon that it matters whether the error is plain at the time of appeal not at trial. So this court has to follow uh other panels and um I don't think yeah so that's the answer to the first question. But as to the second, that's true with a lot of trial errors, right? It's >> like like what?
>> Um I I think like well >> I can I don't know. I can >> give me some testimonial errors that are like that.
>> I'm sorry, your honor. I I can't think off the top of my head.
>> That That's because it basically doesn't happen.
>> It basically doesn't happen. I mean, you could you would never with with the poor questioning that occurs at trial, the strategic decisions to not object to every little thing that's being said.
Um, it just it's it it's your your request here to me seems impossible for the trial judge because this wouldn't just be limited to this type of error.
It would be it would be any type of prejuditial hearsay error >> could be reversed on plain error if it was an obvious hearsay problem.
>> I think that's what the plain era standard calls for is if it's clear and obvious. And here these are pretty well vetted at at the time Hatley and Harper had had been decide not not decided but they had been tried and the there were objections made in both of those trials.
So the government was aware one of them was the same office Hatley. So the government knew it could be taking a risk by admitting this evidence or trying to get this evidence in. I think Indian status is a pretty unique um element and the the evidence that often is elicited to prove that is pretty unique. So I I don't know that there is really a slippery slope problem. But again I think that's what plain error is is when it's a plainer obvious error when many hearsay one hearsay errors won't be plain or obvious. um then this court reverses it. It was it was obviously prejuditial.
>> I I sit I'll just tell you I mean just from practical experience I've sat on trials and I sit up there and I cringe at the amount of improper questions that are asked and answered without objection.
>> Yeah, I I understand.
>> Why wouldn't there be an invited error problem here? The fail, you know, the failure to object was um strategic. I I think there's no evidence in the record that there was this was a strategic move. There's nothing to gain by it. Um >> build an error.
>> I I I think it's highly improbable given the the rigorous um burden that one has to prove plain error on appeal to strategize and hold off um on the hope that you convince a panel of three that it's plain prejuditial and affected the the public perception of judicial proceedings. So I I think it defies uh reason to think this was a strategic move here on this record.
>> Thank you council.
>> Thanks.
>> Let's hear from the government.
Good morning your honors. May it please the court. Lisa Williams representing the United States of America. I think I'll begin where the panel left off which is with the issue about the tribal status and the government shares the exact concerns that uh the panel uh uh expressed if if the panel if if this court is going to start reversing on plain error nonconstitutional evidentiary areas errors right this isn't even a constitutional error this is a nonconstitutional evidentiary error It is going to be nearly impossible for trial judges to effectively try the case because the judge is now going to become the third attorney in the room and they are going to be responsible for suicide.
>> Are you suggesting that there is no case where hearsay comes in unobjected to that is not subject to the plain error analysis.
You're not suggesting that surely.
No, your honor, the government is not suggesting that anytime hearsay isn't objected to, a defendant can't raise it on plane error.
>> Why? Why is this case so different then?
Well, because the nature of this um type of evidence I you know the the fact that the office had dealt with Hartley and uh Harper was out there cuts both ways, right? Because defense council is also on notice that Indian status is a live issue in the circuit that has to be proven. And this trial council who the judge magistrate judge commented is exceptional at preserving appellet issues.
>> Well, not wait a minute on that. Um, >> could that have been a statement by the judge that the judge was in an impossible position and it was just trying to fortify the record that this lawyer is very good. uh he objects in trying to preserve this verdict if there is a verdict.
>> I I don't think so, your honor. I think I think that trial council was actually just a really good attorney and he was very aggressive and he was very good at objecting and he was very good at preserving the record and you can read through the trial and and see how he's lodging objections. I mean, I think it's an accurate statement. So, are you saying that the record suggests that this lawyer purposefully failed to object in order to have the opportunity on appeal to have the issue presented on a plain error standard?
>> I think the record strongly suggests that this lawyer purposely chose not to raise the issue of Indian status as a defense. that that was a strategic decision by trial council. I do think the record suggests that and given that this was a strategic decision by >> defense stipulate to it.
>> That's that's government loves stipulations, your honor. That's a great that's a great question. But >> thank you.
>> Keep in mind that the defense at trial was I never did this. That was Mr. Collins defense. He said his wife must have done it or Benjamin Rutled must have done it. But that that is how trial council structured this trial.
>> But unless an element is stipulated to, the government has the burden to prove each element.
>> And we did with numerous evidence, including evidence that wasn't objected to. And I I did want to point out it wasn't the mother that testified that they had tribal enrollment. Um it was the defendant. The defendant himself testified that both boys had tribal enrollment cards. So the defendant conceded during trial the existence of their tribal en because this is not a trial about Indian status.
>> All right. But don't we judge this from the prosecution case and chief uh that that element had not been proved. The initial rule 29 motion would be, but I I believe the law is at the conclusion of the case, this court reviewing reviews the sufficiency of of the evidence based on the entire trial record.
So again, and and that's why this is it's not every hearsay, but but this the way that this is postured before this court. Um but I don't think it would be to go back to your original question, your honor. I don't think it's an easy hill for a defendant to claim pl error review on a non-constitutional um evidentiary uh issue period.
>> Do you have authority that says that it's very difficult for >> Oh, I think a Frost case, your honor, which I know that um two two of you uh are very familiar with. Frost lays out all of the concerns about raising raising uh plain error. Um this is what Frost said. Our review is hampered by the incompleteness of the factual record. Hearsay determinations are particularly fact and case specific. Had they timely objected, there would be a record. But these issues weren't explored in detail. We're left to speculate. Um the and and then the court continues where the determinative facts are missing from the record due to the defendant's failure to make a timely objection. We will not find plain error based on the possibility that better factual de development would have made the error clear. So I think frost really does >> Was that going to plainness or to prejudice?
Well, I the government includes it in the plainness section of our brief, but I think it really speaks to to both that that you can extrapolate that concept and apply it to both of both of those prongs of of plain error review.
>> I know it didn't happen here, but um why in these cases can't the government get the tribal cards of these, you know, certainly the victims here? You know, sometimes the the defendant might hide the ball, but you know, was is there any impediment in in this case to getting the tribal cards?
>> So, with respect to the Chalktown Nation tribal cards, they are only maintained electronically. That that's Miss Oaks testified to that at trial. So, there is no actual paper card.
>> Can I get a screenshot of >> Well, that's the next step. I mean, so so the the exhibits that were emitted is what happens when you hit print on the computer to say print it out. And so if the court is unhappy with that format, which the court should not be, right?
Like you're pulling the the the evidence from the machine from thection. Our only concern is that you overcome the hearsay objections and >> and I think that you know if there was an objection could could the com could the the method of how the data was electronically stored have been better flushed out. I do think that that it could have been better flushed out on the record and it could have said a screenshot won't work or this is a basically a but the fact of the matter is the record is missing that because there was no objection raised >> but there will be in the future.
I mean so it will be done correct because >> you mean objections be raised or the new way >> can be done? Well, I I I think that um certainly Hartley Harper, I believe that maybe uh this the same issue was just heard at oral argument in New Mexico a couple weeks ago and then the case today. Uh we are trying to figure the government is trying to figure out how to properly do this and it is our sincere goal that we do so without you following the rules of the evidence and and not violating evidentary rules. So yes, your honor, I I would hope that um >> it's doable.
>> It's doable and that we we end this discussion in the near future with this this court because it it's but again it's um Hartley and Harper and the government makes this distinction in their briefing. It wasn't clear in that record that the tribal enrollment records are only maintained electronically in the database. And so part of this is just flushing out what this evidence looks like so that the court can properly analyze whether or not it meets the 8036 requirements. Uh but again, I don't think this court has to do that because we are on plain error review, not abuse of discretion review. Um I would like >> but but but you do agree it was air and you do agree it was plain.
>> I I don't agree with either one of those prongs, your honor. or the government doesn't doesn't concede the first two prongs of plain error because the government's position is that Hartley and Harper do not lay down a per se rule of inadmissibility. They said that the way it was admitted was wrong in those specific cases. And again, key there is that those panels thought that or didn't they both mentioned that this was not an electronic database. And what we have now the evidence here is that these tribal enrollment cards are only contained in the electronic database.
There is so that is a distinction with a a difference and given that the letter is just a summary of information contained in electronic database that sets them apart from Harper and Hartley's concerns. So if we're writing this case on that issue in your favor and we say that that means in all cases involving Chakta tribal uh membership, the same thing will be done then as was done here.
>> Well, I think there's a couple different factors that go into that. Your honor, is it a published opinion? Is it unpublished? Uh so >> it's a published opinion.
It's a published opinion.
>> Uh I >> the Jock Nation will will be the exception. Well, you have to admit that.
>> Well, I I mean if the if the court decides the issue, I it's it's hard because since it's plain error review, I'm thinking in the future of standing up and arguing it again on abuse of discretion. I don't think I could rely on a plain error review case to show later that the court didn't abuse its discretion. I I just think that the fact that we're living in plain error review puts this case off on an island and and makes its uh persuasive future value uncertain at this time would be my best answer to that.
I would like to now turn to the specific intent evidence. Um, one of the evidentiary pieces of evidence that um, defendant did not address is the testimony of RM who as the court astutely noted was the fourth eyewitness to this assault. And what RM testifi?
Well, first of all, RM told Dr. Conway at the hospital that he saw the defendant bash his brother's head in.
>> Okay, this is in the report of what RM said told the provider. This is when Dr. Conway testified as to what RM told him.
>> Told him.
>> Yes. Okay.
>> And then so bashed his head in is what RM said at the hospital. And then at trial, RM testified that he saw defendant put a hole in JM's head which made it bleed a lot. So it's not just JM saying that he knocked him in the head with a pipe, >> right? But the forensic evidence didn't indicate there was a hole in the head, did they?
>> Oh, it did, your honor. And that was going to be my next point is that they try to downplay the severity of the injuries to the head, saying that it's just some lacerations. It required suturing, which the defendant conceds in their reply brief that the the head injury is not some bruise. It is his head is split open and requires stitches to pull it back together again. And if the court looks at the photographs from the hospital, which are really difficult to look at, some of the worst that I've had to look at in my career, you will see the blood that is dried and coated all over this little boy's head. So there is no doubt that something was uh with a significant degree of force was used on this little boy's head. And JM said it was a pipe and it's not a PVC pipe because there's no way a PVC pipe is going to split a little boy's head open so that he needs sutures. Wasn't the why wasn't the the weapon um uncovered, you know, during the investigation?
>> I don't think they found it during the search, your honor. I it it just wasn't.
I mean, it the record, it's not an exhibit. Um you you there are some photos from the search warrant and it doesn't look like there's the weapon in there. Maybe because defendant hid it, maybe threw it away. Um, but not only is the case law replete with taking a blunt, a a bat, a pipe, whatever, to an adult's head, this is a six-year-old boy.
Like, what other intention do you have?
this tiny six-year-old boy with his tiny little head and you take a pipe and you bash it, which is JM's word, not mine.
You bash it on his head. What else could you possibly be intending? But then um and and and they also downplayed the injuries. This little boy reported to the hospital with traumatic rompyosis, which I'm sure I've butchered, but that is the condition where all of his injuries are so severe that they're rel releasing so much toxins into his body that his kidneys are shutting down because it cannot filter. Um, and that head injury contributed it to that.
Well, you know, we we see cases all the time though where um you know there there's a fight or a beating and um the intent wasn't necessarily to kill, but um in the heat of the moment, you know, more force was deployed than was necessary or you know, you get a second degree or re recklessness, right?
>> Yep.
>> And so I'm out of time. May I answer the question?
>> All right. Um, that's when the other evidence comes in that that also speaks to this uh intent. And and think of it this way. Think of a a a fight with a knife fight, right? Maybe somebody stabs somebody with a knife. And if they didn't mean to kill them, maybe they call 911 right away. But if they stab him in the knife in the stomach with a knife and then walk away, that speaks to that's additional evidence of their intent of their specific intent to kill. And in this case, Mr. Collins left that little boy in his room, didn't seek medical attention, hid him back there so that other members of the house couldn't see him either. And that's just like walking away in the knife fight, leaving somebody bleeding on the ground. that type of evidence can speak to his specific intent that that little boy died from his injuries.
>> Right. Thank you, council. Um, Mr. If you'd like two minutes for rebuttal, you may have it.
>> I just want to clarify a couple of factual points. Um, talking about RM's testimony, uh, that he saw Mr. Collins bash in JM's head. That is not what what the testimony reflects. In summarizing what RM told her, Dr. Conway said he talked about bashing JM's head in and leaving a hole. At trial, RM testified that his dad made the hole in JM's head, but when asked what caused it, he said he did not know.
The reasonable inference from that is that the hole was the superficial cuts.
And yes, they did need suturing, but it was to the skin, not the skull, not the brain. He didn't. There's no medical evidence that the skull was bashed in the way that one would think. This is a four-year-old's description of what a bloody wound looks like. And I understand it was bloody and it is hard to >> What about the u forensic evidence of what the child looked like and any uh uh medical reports on the condition of his head? What about that? the medical report, the the doctor's testimony was what I would have done to treat this immediately would have been to wash it, make sure it didn't get infected, and to suture it, which is what it required. It was again to the skin, not the skull.
Um, I I just want to say, sorry, >> do the photographs suggest that he was a bloody mess?
>> Yes.
>> Okay. And he said that the reason that he was a bloody mess was because he was kicked across nails exposed in the floor. That is what JM said caused the bloody mess. RM never said he saw it.
And the only person who said that J who said that he was hit in the head with a pipe was JM >> who said he was knocked in the head with it.
>> The issue is sufficiency. Mhm.
>> And our standard on sufficiency is that we view the evidence in the light most favorable to uphold the verdict. And aren't there reasonable inferences here that that are counter to the position you're taking?
>> I don't think these are reasonable inferences. I think this is bald speculation. Um, and it has to be uh the evidence has to be sufficient to find beyond a reasonable doubt.
Wait a minute. Uh just because one person said that that that the hole was caused by the the nails after he was hit with a pipe. Uh and RM's statements andor testimony suggest maybe different. Don't you draw the inferences uh in favor of the verdict? And that is that that that it was caused by the beating, not a postbeating as he's falling and he scrapes his head on the nail.
>> Sure. I think even conceding that um this court can infer that the injury was caused by a pipe. Again, I it's superficial, not life-threatening, and I don't think it in indicates lethal intent. That's our position.
>> What What do you think about the idea that uh he didn't try to treat him and he didn't call for help?
I think that is d the the best way to read that is that he didn't want to get caught. He didn't understand the significance of these injuries. I think that was also pretty clear. Um but I don't think it's an intent that it reflects an intent that Jam die.
>> Aren't there two inferences you can draw from that? one that that he didn't want to be caught or uh that reflects his intent before as he beating the kid.
>> I don't think so because if you even if if we think it could reflect his intent that as he was beating the kid, uh he's not going to die from these head injuries. I understand they're bloody, but he the head injuries wouldn't have caused him to die. And so it wouldn't be reasonable to think, oh well, I'm going to leave him and this head injury is going to to ultimately kill him. That would just be wrong.
>> So, uh, >> I think I've used enough time. Thank you.
>> Thank you, council. We appreciate the arguments. I >> Thank you.
>> We like an aggressive argument. Um, council are excused and the case is submitted.
Back >> in a row. That's It's a big day.
>> Yes.
Are you are you ready? Go ahead.
>> Sorry we scheduled it that way.
>> No, it's okay.
>> All right. Um, this case is 25-8055 United States versus Austri.
>> May I please the court parenta on behalf of the appellent George Austert. This case involves a the question of whether the roadside deployment of a drug detection dog constitutes a fourth amendment search under the Supreme Court's property based and reasonable expectation of privacy tests. Under either test, the deployment of K9 Becky around Mr. Ostag's car was a search. I plan to start with our argument under Kobias.
K9 Becky's deployment constituted a search under Illinois's beapiest because her sniff is capable of detecting lawful activity, namely the possession of non-contraband substances that smell the same as their illegal counterparts.
Because she can alert to non-contraband, her deployment invades drivers reasonable expectations of privacy in the lawful possession and transportation of these substances in their vehicles.
Almost all police conduct requires a minimum level of suspicion. It depends on the nature of the intrusion, but frisks, you need reasonable suspicion. A search of a car, you need probable cause. Search of a house, you need probable cause and a search warrant.
>> So, would this mean that a that a drug dog can't be used in Colorado?
>> No, your honor.
um the this um whether something is a search and uh whether a search is reasonable. These are questions that depend on federal law and that's why we've focused on the federal legalization of hemp and other um the federal legalization of these substances. Um so no, it doesn't turn on state law just to be clear.
>> Um so >> our dog sniff cases are pretty categorical.
Um and you know the rule the rule you're proposing um you know basically I you know I explain to me how to distinguish our 10th circuit precedent on that and and it seems like your position would be that a drug unless dogs can be sniffed or trained to tell the difference between hemp and marijuana and methamphetamine and its ingredients. Um, it seems like there like at least drug drug sniffing would be out the window.
>> So, I want to there are two parts to that question. First, we're not saying that drug dogs can't ever been be used.
We're saying that all we're asking is whether their use constitutes a search and thus implicates any part of the Fourth Amendment. Right now under Kobias there's a narrow carveout that they don't because they they don't reveal the presence of non-contraband and carveout excuse me Kobias is a very narrow carveout. Um and we're saying because K9 Becky doesn't fit in that carveout anymore she uh can detect lawful substances and so she doesn't fit into that narrow carveout and so her sniffs implicate the Fourth Amendment. um that could this court could uh >> is that because she touched the car or >> Oh, that's a sorry that's a separate >> Jones argument.
>> Yes, that's our Jones argument. So, this one is just about what she is capable of detecting. And because she's capable of detecting on contraband under Kobias, a plain reading of Kobias, she doesn't fit into that narrow carveout. And so, the officers need some suspicion. They, you know, this court doesn't have to decide this question in this case, but they either need reasonable suspicion or probable cause because her sniff is a search under the fourth amendment under a plain reading of Kias. Um, so uh >> let let me ask you this. So, um I mean I guess if we had an expert uh drug dog handler, they would probably agree that any dog is capable of a false positive.
>> Is that fair?
>> Yeah.
>> I mean, so so all dogs are capable of alerting to non-contraband.
>> No. A false >> They are. it's if it's a false positive.
If they if they alert and there's nothing there that's a false positive and and you've you've then conducted a search of someone's legal um items.
>> Let me let me explain what I mean. Um a dog that it's giving a false positive is still only trained to detect contraband. um it's making a mistake and that's kind of the probable cause inquiry is we we know that sometimes they make mistakes and that's okay because probable cause only requires a fair probability but in K9 Becky's case she's actually trained because she can't differentiate between these smells she's actually trained and therefore designed to detect non-contraband and so unlike the dog who is only trained to detect contraband and makes a mistake she is actually trained to detect non-contrabband and thus she doesn't all into Kobias's narrow carveout.
>> Was there any Was there any evidence um that dogs can be um trained to alert to marijuana but not to hemp?
>> Oh yes. Yeah. Um Detective or excuse me, I keep doing that. Um Kenneth Fton testified that he in his study dogs could be proofed off of hemp. Um and that it's possible. Um, but on this record, Kane on Becky was not proofed off of hemp and the district court found she can't distinguish between those smells. So, that's actually a good question for the whether there's a slippery slope here. I think the answer is no because dogs probably can be trained to differentiate. It's just that K9 Becky was not.
>> What about fentinel?
um my you know I've I've known people who were prescribed fentinel for cancer patients and stuff >> and they possessed it legally >> um presumably can a dog be was there any evidence about whether a dog could be trained off of um prescription fentinyl?
>> Not in this case. Um, so in this case, the government conceded that K9 Becky can't differentiate between the two, but it seems plausible to me on a different record another dog potentially could be depending on the quantities in um in the prescription versus uh you know the pills that people possess illegally. I think that that record could be made but it wasn't here and K9 Becky in she cannot distinguish between the two.
>> Okay. So, um what what about there is some testimony based on handler experience in this case that um the handler testified that he had extensive experience and that he'd never seen a dog alert to a to a legal substance.
>> Um so, the district court didn't rely on those findings. uh or excuse me, it didn't rely on th that testimony and it didn't find that it's completely imposs or you know it didn't say there's almost zero likelihood um and so I don't think that's a finding this court should make but also I think that testimony is itself um pretty uh useless um because the officers didn't testify that they actually had been looking for that type of material. They uh the the record evidence says that hemp looks very similar to marijuana if not identical.
And so when they say we never found hemp, well, okay, they don't test it at the roadside. And so who really knows?
And hemp was only legal for three years out of the 31 and 10 year long careers of these two that testified they'd never found it. So I don't know, that doesn't say very much. Um so the district court didn't find that and I don't I don't think this court should in the appellet posture either. When when the dog alerted, we don't know what what it was alerting to, whether it was marijuana or >> meth or fentanyl or something else, do we? I mean, it alerts.
>> Yeah. Yeah. I think that's actually what makes it a sniff or excuse me, what makes it a search under Kylo. Um because the dog can't say what it is smelling and it can't differentiate and say, "Okay, this one's definitely contraband." Um it can't tell it. And so that's the same that was the same as the thermal imager in Kylo. The officers didn't know whether it was picking up the lady taking her nightly sauna or a marijuana grow operation. They had to make a second g an an additional guess.
That's true here too. The officers have to make a guess. And it's it's still the fact that she can do it just like the thermal imager can uh not differentiate and can detect lawful activity. That's what makes it a search. So, I think that actually contributes to why this is a search.
Um, turning to Oh, excuse me. Did someone >> Yeah, yeah, yeah. Tie tie to Jones.
>> Okay. Um, so our second argument um is that K9 Becky uh her sniff was a search because she jumped on the car and therefore trespassed on a constitutionally protected effect under Jones um for the purpose of gathering information. Um the district court we think correctly resolved this issue um and found that her her jumping on the car was uh a fourth amendment search under the court's trespass test. So each of elements are met here. There was a physical trespass on a constitutionally protected effect for the purpose of gaining information. A car is indisputably a constitutionally protected effect and we know that from Jones. There was a physical trespass. K9 Becky jumped on the car and she scratched it. Um, jumping alone would be sufficient under Jones. Uh, Jones specifically says we don't need damage in order to find a trespass. Um, it was valitional, non-inccidental, and uninvited. Um, but here we have damage and that confirms both that there was a trespass. Um, and it also distinguishes this case from others where there's fleeting contact.
>> Didn't the district court though find that the doc had alerted before >> she touched the car? Mhm.
>> Doesn't that alter the trespass analysis? In other words, do we have to buy your Cabalis argument >> first and then then then we get to the Jones argument?
They're linked.
>> So, >> practices of your argument.
>> Um, let me be clear. So, the Kobias argument is completely separate. So, her entire deployment under Kobias, regardless of whether she alerted, was a search. Um then with respect to our trespass argument, you're right that if you agree with the district court that she alerted before she jumped on the car, you don't need to reach our trespass argument. And that's that's true. So, but you would still need to reach our kobias argument because it's completely separate and not affected by the alert.
>> Um >> let let me ask you a question about jumping on the car in and of itself. Um, it seems like the cases where the car has been touched and that there's been a trespass that the touching was part of the sniff, i.e. the dog had to touch the car in order to get the good sniff. Um, do we have any evidence here that the dog's touching of the car was more than just excitement that it had to be up touching the car to to get the evidence?
>> Yep. The district court found as a matter of fact that it did jump up. She jumped up because she's short and needs to get higher to smell. And it found that she actually gained information from that because she was then did her final indication. So, we have findings at the >> How about this? If the if the dog had jumped up and not touched the car, >> if it just went like this.
>> Yeah.
>> Well, it didn't touch the car, so there's no trespass.
>> Okay.
>> Yeah. Um but if it touches the car for purpose of gaining information, then there's a trespass. Um and and it's pretty it's a simple test. So the dog, if it doesn't get a if it doesn't actually touch the car, that's fine.
That's that's what Jones requires. Um so the government could get a bigger dog.
It could train her not to jump up on it.
Um these are pretty simple things.
Um, so >> dogs are like kids.
>> Yeah.
>> Yeah. Um, I think I will save the remainder of my time for rebuttal if the court doesn't have further questions.
Thanks.
>> Thank you.
>> May it please the court. My name is Christine Martins and I represent the United States. So, the United States is asking that this court affirm the district court's denial of Mr. Oer Teg's motion to suppress. And as to the dog issue, there's really three questions.
And we're asking this court to uh hold fast and that a sniff is not a search to affirm the district court's determination that Becky alerted before she touched the car and only if it reaches the trespass issue to hold that touching the car was not a trespass within the meaning of the Fourth Amendment. I think our sniff issue is probably one of the most important issues out of the three. So I'll start there. And there's really two primary reasons that the sniff is not a search.
First, the United States Supreme Court said so in bright line cases. And second, the legal landscape and the practic practical realities have not changed such that this court should do anything other than apply those Bright Line cases. Now, as I understand Mr. Ostrag's argument, he's asserting that because Becky is capable of alerting to lawfully possessed hemp, then there's essentially a reasonable expectation of privacy in the odor of THC. But I think that that argument that focuses on the mere capability of the dog, the mere possibility of such an alert uh leads to absurd results. And I also think that this speaks directly to the reply in which Mr. Ostraag argues that we have conflated both us the district court and the seventh circuit in Plankart have conflated the search question with that question of the fallibility of dogs. But it makes good sense when we're exploring the reasonable expectation of privacy to talk about the success rate of dogs. And the the logical fallacy here has to do with that focus on the mere possibility as creating that reasonable expectation of privacy. And I think there's an example in this record that drives the point home. The government's expert witness at page 25 in volume two testified that as a private individual engaged in training drug dogs, he has a DEA license to possess all of the target odors. So he has a license to possess methamphetamine, heroin, and cocaine.
And I don't think anybody would argue that the mere possibility of the lawful possession of those substances creates some sort of reasonable expectation of privacy in the odors of those substances.
And we would say, I think in response to such an argument, that the possibility of coming across that lawfully possessed substance doesn't convert it from contraband to non-contrabban and that the possibility of finding a licensed dog handler in a roadside stop is vanishingly small. So there's no reasonable expectation of privacy. But that's the logical link here that we get to when we start talking about those probabilities. And that's why it makes sense for the district court and for the seventh circuit in plan cart to go start talking about those error rates in dogs and the fourth amendment's forgiveness for the uh error rates and dogs is not conflation of the probable cause inquiry with the search inquiry. It's recognition of the real life circumstances that we're working with on the ground. Simply stated, the legalization of hemp, though hemp contains THC, does not create a reasonable expectation of privacy in the smell of THC or in marijuana. Marijuana still remains fundamentally contraband.
So, because marijuana remains fundamentally contraband, just as methamphetamine, heroin, cocaine, and fentinyl uh in the context of a roadside stop, those things are all fundamentally contraband. and uh Judge Carson gave the example of the lawful possession of fentinol by someone to whom it's prescribed. Now Rob Havis uh the government's expert witness um the second time that he testified towards the end of the transcripts. I don't recall the page number off the top of my head but I do believe it's cited in our brief. He testified that when they were training dogs on fentanyl that they didn't use the prescription grade things like patches and lollipops because the experts told them that those doses were so small the dogs would never alert to them. And consistent with that, the law enforcement witnesses in this case testified that they had never seen any of those lawfully possessed substances in the field. So e and I think that bears out here also with hemp because I think that hemp is probably the the more realistic example where you might find a uh lawfully possessed piece of hemp in the field. But even the record here shows that the odds of that are extraordinarily small. The government's witness, Dr. Ken Furton testified about his small-scale study that had not yet been peer- reviewviewed and finding that it was possible to proof drug dogs off of hemp. But in that study, only about half of drug dogs showed any interest in or alerted to. He did not differentiate between interest and an alert. There was plenty of testimony about interest being different than an alert, but only about half of them would show interest in or alert to uh hemp, but that was not hemp products. it was only the bud of the hemp plant itself. And I think that it's worthwhile in noting that's that's not commonly how folks possess hemp is the bud itself. And it's basically indistinguishable from the part of the marijuana plant that smoked. So I think for perspective, it's helpful to think that if there was a hemp bud on the passenger seat of the car during a traffic stop in plain view, that would be probable cause to search the car. um because it's visually essentially indistinguishable from marijuana and the portion of the plant that smoked. But even so, in that very narrow circumstance, again, all of the law enforcement witnesses in this case testified that they'd never seen such a thing in the field.
>> What What do our cases um require for a finding of reliability? I you know I hear you saying well we don't expect 100% you know no false positives but you know what what's deemed a reli reliably trained dog in this circuit?
>> Certainly your honor. So first and foremost, the certification is the gold standard for reliability. And so courts are loathed to get into a statistical analysis of the drug dog's field performance for a variety of reasons.
And that's because uh residual odor.
There is plenty of testimony in this record about how residual odor can work.
It means all the dog can tell you is it smells the odor of contraband, not the quantity, placement, or even if the contraband has uh been someplace and gone. Think about stepping onto an elevator and smelling someone's strong cologne even though they're not in the elevator. That's how it works for the dog. So, the dog very me may alert in the field and smell the odor of contraband even though it's never located due to a poor search or the fact that the contraband has been moved. So that field data is not great and we acknowledge that in Lewig but in Lewig even looking at the field data this court said 58% was more than good enough. Now in this case the defense undertook a extensive uh evidentiary hearing into the real reliability of K9 Becky. And it was five days where we looked at 13 traffic stops. And out of those 13 traffic stops, five of them resulted in no seizure of a measurable quantity of drugs, which puts Becky's field performance at approximately 61%, which is above what this court said was acceptable in Lewig. But I think it's also fair to point out on Becky's very first deployment, Trooper Martinez did not call the alert. And later at the hearing, he testified that he failed his dog. He read her wrong. and reviewing that later, he believed that she had in fact alerted. And Mr. Trooper Martinez is a relatively inexperienced K9 officer also in the course of this evidence. So when that man was pulled out of the car at that traffic stop, he was pulled out of the car because he had an arrest warrant and he was searched incident to arrest and there was drug paraphernalia on his person. So, I don't know that it's even fair to say that that uh stop didn't result in something seizable with a clear source of drug odor. Um, and if you don't count that stop as a failure, then Becky's field performance is 70ish%. But anyway, she's always passed certification and even double blind testing post Mr. Ostster stop with the Wyoming High Patrol. So, there's really no suggestion that she's not accurate uh more than accurate under this court's case law. both uh including Harris and Lewig. Well, in in your recitation about uh the hemp and the analysis that your experts gave, are are they saying that the incidence of hemp in a stop is sufficiently rare that the alert is going to be to marijuana? Yeah, I think that's a fair way to summarize it, your honor.
>> All right. In at least to the point of 58%.
>> In terms of seizable drug quantity.
>> Yes.
>> Um I think so. Well, again, accuracy for the canine, you really can't impugn her accuracy for um the failure of the officers to find the contraband because of that residual odor issue. And then in terms of uh the the hemp, again, all of the law enforcement witnesses here testified that they had never found lawfully possessed hemp. Um after a Dogs Alert, uh especially when you get into the testimony of Rob Havis and Trooper Bracken, having worked with many dogs, um it really covers more than just K9 Becky as practical experience.
And so your honors, I think that um finding essentially a reasonable expectation of privacy in a odor of a controlled substance where we can find a lawful exception to the substances uh possession doesn't convert it to non-contrabban and I think that such a rule would lead to absurd results. Um if there are no further questions on the kobias issue, um I would like to briefly address the Jones issue.
Um and I think that there's a similar argument when it comes to Jones. I think that really the best case uh for the government here is feli out of the sixth circuit. There the sixth circuit court of appeals undertook a very detailed and thoughtful analysis of how this Jones trespass issue really should work. Um and at bottom any technical trespass amounting to a fourth amendment violation again produces absurd results.
In Feli, what happened was the officer um had his drug dog and was running the drug dog around the vehicle. And this is one of those drug dogs where the officer taps to ask the dog to sniff in certain locations. So, in doing so, he tapped at the open window of the passenger or excuse me, driver's side of the vehicle.
The dog puts its paws on the sill, sniffs around, does an alert. They go around to the other side of the vehicle, do the same thing. The dog sniffs, leans in a little bit, and then gives an alert. So, her nose actually breaks the plane into the cab of the vehicle, and she's got her paws up on sort of the sill of the door. Now, in examining those circumstances, uh, the sixth circuit in Filme said that this was incidental to her sniff and it didn't make this conduct into a fourth amendment violation. and it went through the problems with any technical trespass amounting to a fourth amendment search.
Mainly that the placement of the contraband, the size of the vehicle, and the size of the dog creates a uh dict would dictate whether or not those things are a search. Becky is small, so anytime she searches, she's often trying to get up, so she jumps a lot. But conversely, a large dog with a low vehicle might uh rub against the doors, the wheel wells, or even the underside of the frame in the course of trying to go to source. And that's what all of the experts here uh agreed drug dogs are properly trained to do. They're trained to try to reach the strongest source of the odor. And in doing so, sometimes they touch things. Now, in construing any touch by a drug dog as a fourth amendment trespass, um I think also it's important to think about what that looks like when we would infer that same rule to a police officer. Um the Sixth Circuit makes the point that a police officer is entitled to look through an open window. If he presses his nose on the window when he does so, now it's a Jones trespass and we can't do that.
That seems similarly absurd. And I think that the point is also illustrated by this uh thing about scratching the car.
First of all, we dispute that the car was actually scratched. We don't dispute that uh it was touched, but um that would be a fourth amendment problem that on these facts would be solved with rubber booties. That seems like an odd place to draw the line for the fourth amendment. And I think that the sixth circuit dealt with this well when it talked about the purpose of the touch itself. the the dog doesn't actually gain information just through the touch.
Now, sure, she gets up higher, but the touch itself, she has no sensors in her paws. And furthermore, you have drug dogs who do things like press their nose to the seam of the car. If it's just the touch, then that too would be a fourth amendment trespass. But we're not going to be writing a rule that says that sets down a standard when it's incidental and when it's intrusive.
That's the the job of the district judge, isn't it? To listen to the evidence and say that was incidental. Uh or in other case, that was intrusive. That's the district court's job, isn't it? Not ours. Yeah.
And I think that if the district court had gotten to really judging uh whether or not the the trespass here, May I finish my answer, um was some sort of intrusion or invasion as the words of Jones contemplate, then I think that we could uh be talking about whether factually the trespass did those things.
>> Did the did the district court just avoid that by saying there was a previous alert or did it say there was an intrusion? So what the district court did was found that the dog alerted before she touched the side of the car.
So you don't have to reach the Jones issue. But >> that's what the district court did. Did not the issue.
>> The district court did address the trespass issue even though it did not have to. Frankly, I think because the judge was sort of offended that the drug dog jumps on cars. But the point here being is that if you reach the trespass issue, the district court didn't really get down to whether or not Becky's uh intrusion or occupation of the vehicle facilitated the the search. The just that it was in the course of the search was enough for the district court. And I don't think that's enough for all of the reasons that the Sixth Circuit said in Felme.
What if they um what if the dog was placed on the roof of the car or the you know the bed of a pickup?
>> Now, if you have the officer, you know, actually doing that, I think that's where we can fall back to this circuit's wellestablished precedent about the actions of drug dogs and how they're facilitated by officers by things like opening the back of the hatchback of a car, leaving a door open. Um I think the the back end of a truck is maybe a closer question. Like I think the dog would probably need to leap up into that on its own following its nose rather being placed there by the officer for it to be acceptable under this court's existing precedent. And that's part of why I think it makes sense here to categorize the the Jones issue in terms of harmonizing it with this court's existing precedent on the behavior of drug dogs and that line between the officer's facilitation things like manipulating the car and the drug dog following its nose.
>> Right. Thank you. Thank you.
>> Time's expired. Have some rebuttal.
>> I'm going to uh make a couple points about the trespass issue. Um Jones has made clear that only three things are required. Constitutionally protected effect, a touching uh and that being made for the purpose of gaining information.
All three things are met here. And the district court did actually find that she jumped up on the car in order to get information. That was a finding the district court made and she in fact got information from that. So the government's argument that it didn't make that finding is incorrect. Um but Jones and Hardiness make clear that it doesn't have to be a substantial touching. Um walking the dog walking on the cartilage in um Hardiness was enough. And this idea that um the paws have to communicate the information is not in Jones and it's definitely not in hardiness. In hardiness the dog's paws weren't containing weren't conveying the information when it was walking on the curtilage. It was trespassing in order to get information from its nose. So that's what matters. It's not whether the paws convey information. And the same was true in Jones. It wasn't the attachment to the car that conveyed information. and it was you know the digital device transmitting it back to the officers about the movements but the trespass was the attachment. So the felme court was incorrect and the government is definitely incorrect on that point. Um so the idea too that the the dog um you know the touching could be um this would be very difficult or irrational um to administer. It's not.
If the dog touches the car while it's doing its sniff and it's trying to get information from doing that, it's a search under Jones. It's not really very hard. The dog can't touch the car. If the dog jumps into the bed of the trailer, it has trespassed. Uh, and it it that's a search whether the officer puts it there or not. And to be clear, this court has never addressed Jones in this context. None of its cases on that stone line of cases address this test.
They address the reasonable expectation of privacy test, not this question. One last thought on our kobias argument.
Whether something is a search is different from whether there is probable cause. Searches turn on capability.
Probable cause turns on probability. So the reliability questions and the error rates do not bear on the search question. And for this we'd ask you to reverse. Thank you.
>> Thank you councel.
Appreciate your stamina. You're excused.
You're not you're not doing the next case, are you? And case is submitted.
Okay, our final case this morning is homey technology versus National Association of Realtors 25-41 01.
You may proceed.
>> Good morning, your honor. May I please the court? I'm Chris Rener for the Appalonto Technology. I'll aim to reserve about a minute of my time if that'll be possible. The primary issue on appeal is the correct application of the concerted action element of section one of the Sherman Act. The appelles used their control of the nation's multiple listing services to promulgate rules that facilitated exclusionary conduct called steering at the expense of brokerages offering low prices to consumers. Consumers were harmed by the steering which contributed to stubbing stubbornly high and elevated commission levels. The appellant was also injured by the steering as well and suffered injury at the hands of N's members in Utah in the course of providing lowpric brokerage services. Now on appeal, the appelles repeat the error of the district court and take the position that the Utah members of N that caused homies injuries were third parties to the conspiracy.
This argument is foreclosed by an unbroken chain of Supreme Court precedent that stretches back over a century. It's black letter law that when an association controlled by competitors promulgates rules that govern the marketplace conduct of its members, those rules are the concerted action of the members.
It's been clear since at least 1946 in the Associated Press case that the members of the conspiracy include all members of the association.
>> So your so your position is is you don't have to have all you have to have to drag the members into it is the rules, not that they actually took any action pursuant to the rules.
>> No, that that's actually not our position, your honor. Thank you. We're we brought this action against the association itself which can be sued under section one as a contract combination or conspiracy of its members. We sued the association and we sued a number of large brokerages that sit on the board of N staff subsidiary committees at N were involved in the promulgation and enforcement of the rules and instructed their members in Utah to join NAR and adhere to its rules. So, we're not saying that all we need to drag an N member into court is the N rule. That's not this case. Now, let's take it as an example because N's raised this. Let's take it as an example remote and unknowing co-conspirator. a member of N, let's say in Florida, who joins N to broker one home sale a year, that uh that defendant would have uh a number of meritorious defenses to an antitrust claim, including article 3 traceability, proximate cause, personal jurisdiction.
There are number of defenses that that remote and unknowing association member defendant could raise. But the important part is that's not this case. and that issue is not before the court.
So back to the um the application of the section one, this court has actually uh and unsurprisingly followed this unbroken line of supreme court president. So in the uh board of regents case which involved a a rule of the NCAA, this court treated the relevant NCAA rule as an agreement among the 600 member institutions of the NCAA.
So we think it's black letter law that the rules of an association that govern the marketplace conduct of the members are the concerted action of the members and it's too late in the day to reargue that point. Once that point's established, the rest of the issues in the case become easy. So on the continuing violation issue, the district court and the appelles urge that the Utah tort feesers, the Utah and AR members that caused homies injuries were third parties to the conspiracy, but they're not. They're card carrying members of the conspiracy affected by the rules, making this case a continuing violation of the Sherman Act of of an agreement formed outside the limitations period and enforced within the limitations period by conspirators inflicting new and accumulating injury on the plaintiff makes this case indistinguishable from Champagne Metals and Henan.
>> But you have to go far beyond that. What what you're claiming here is that the rules themsel You have to be saying the rules are themselves a group boycott, >> aren't you?
>> No. No, we don't actually have to say that >> around that. I I don't understand how you get around that. If is it a take the first rule? I mean, it's basically a disclosure of what charges are going to be made by the sellers broker, the buyer's broker.
What is there about that that causes a that that is a group boycott?
>> We're not contending that that rule in itself is a group boycott and that issue is not >> Aren't you saying all the rules together make this a group boycott? We're saying the cumulative effect of the rules is to create a market structure that facilitates exclusionary conduct at the expense of brokerages offering more.
>> That sounds like to me a section two type claim rather than a section one type claim. Uh because you have to show a combination contract or conspiracy.
>> We have >> to boycott. We we need to show a contract combination or conspiracy to do something.
What the effect of that contract combination or conspiracy is is a question governed by the unreasonable restraint of trade element.
Hypothetically, if a group has a rule that proposes completely innocent conduct and members use that conduct to boycott a competitor, then the group that promulgated the rule are guilty under section one.
>> Isn't that what you're saying? Not not in every case and that's that's not this case. So the I think the question you're raising is are the boycots engaged in by the association members the reasonably foreseeable consequences of the concerted action to which they agreed by joining the association.
In this case, we've alleged going through each rule specific factual allegations that explain how that specific rule increase the likelihood and profitability of steering. The cumulative effect of those allegations well pleaded and entitled to the presumption of truth manifest a institutional commitment on the part of N to facilitate steering by its members.
That's what we're alleging. Facilitation though is different than exclusion. Your your injury here is caused by individual brokers, you know, choosing not to um steer their clients to homey houses. Um it's not caused by the rule. The rule isformational.
The in the injury the injury to competition is the boycott. Couple >> whether and you know whether it's individual or every everybody's in on it but that that's what injures your client.
>> Couple thoughts on that. First, not all the rules are simplyformational. The buyer broker compensation rule that we've been discussing. I think I agree that's plausibly.
>> Isn't that the the pinnacle rule? That's the important rule.
>> I'm not sure that's true. So, it lays the foundation for everything that follows.
>> Well, you can get back to that. You need to answer. I interrupt. to answer judge David's question.
>> Yeah, I will sir. Thank you. So, not all the rules areformational. Look at the commission filter rules and practices.
The commission filter rules and practices explicitly. This is a mandatory N rule that requires the MLS's to allow their members to filter out uh homes uh offering a low uh cooperative commission from the search results shown to consumers. Take a look at paragraph 76 of the complaint. That's exactly how this was used in Utah. There were there were competing real estate brokers that communicated with one another about uh using the commission filter rules and practice to filter out homies homes from the search results that were shown to consumers. And we have we have allegations well pleaded entitled to the presumption of truth that the Utah N members communicated with one another about that use of the rule. That's not information. Okay, let me Um, that sounds like they're just trying to figure out what is the commission rate that will be acceptable uh to homie for the uh buying agent. Isn't that what that rule does?
>> No, it No, it didn't. Respectfully not, your honor.
>> I don't understand how the rule was op how you claim it was operated. how it was used.
>> So again, we we discussed this in paragraph 76 and I think the preceding paragraph, but let's just take an example. I'm the real estate agent. You, your honor, are my client. I >> I'm I'm a buyer or a seller.
>> You are the buyer.
>> Okay. So I, the real estate agent, search the MLS. I run a search for all the properties that have a low buyer broker commission.
I filter all I filter all those out of the search results because I don't want to show you that home because I'm not going to make as much money as I want.
Then I show you the search results. All of the low buyer broker commission properties are filtered out. But it goes it's worse than that. Your honor, >> how is that a conspiracy? That is just one person operating at their in their financial interest. I as a as a agent for the buyer don't want to show that buy buyer homes where I'm going to get a lower uh rate or no rate. And but that that's that's not a conspiracy against homie.
>> You're missing two conspiracies, your honor. First, the N rule that allows the MLS participants to engage in this filtering is concerted action under the Sherman Act. You're missing that conspiracy.
>> But but well, you're missing my I don't see how filtering is a problem. That's that's in their financial interest.
That's I can I can make money. I can make money if I filter. If I don't filter, I'm be representing a seller and I may get no commission.
>> All conspiracy members make money by engaging in restraints of trade. That's not enough to distinguish a antitrust violation from unilateral conduct. But your honor, just so we're tracking, there's a second there's a second >> the filtering has to be a conspiracy to filter, doesn't it?
>> The conspiracy to filter is embodied in the rules. We have it by direct evidence. Yes. How >> how do how do does the rule say all of you folks must filter? I I don't understand where you get >> No, no. It doesn't say all of you folks may filter. It leaves discretion, but discre an association rule that leaves discretion to the association members to engage in anti-competitive conduct can still be actionable. Look at Associated Press. Look at page 10 and 11 of Associated Press. In Associated Press, the association had a rule that con that allowed each member of the association to exercise a veto over the assession of a new competitor to the association. The exercise of the veto was optional and it was still struck down by the Supreme Court. So the fact that there's no mandatory steering required by the rules does not mean that this is not concerted action and it doesn't mean that it's not anti-competitive. But I just want to come back u your honor because there was a second conspiracy you were missing.
Paragraph 76 alleges that the N members in Utah not only unilaterally filtered the search results pursuant to the N rule that allowed them to do that. It also alleges that they communicated with their competitors saying see here look I've filtered out homies homes you should do it too. I will teach you how to use the filter to do this. So, you're missing two conspiracies there.
>> Well, well, that's sharing information, which on its face is okay. I mean, it's like >> agreements.
>> I'm teaching you I'm teaching you how to figure out uh what what the rule to get information that that is the result of the rule that you're supposed to publish. what the the the seller's agent gets and what the buyer's agent gets.
>> Agreements to exchange information are nevertheless concerted action under section one and they can violate section one when they have unreasonable effects on competition.
>> Well, then you're drifting into the rule of reason stuff there.
>> No, I'm pointing out that agreements to exchange information can be actionable.
>> Well, the exchange of information is is not a combat contract in violation of section one. You can exchange information. Is it is it if you're exchanging information and you agree this will be the price. That's a price fix.
>> Your honor, with respect, that's false.
An agreement to exchange information is concerted action under section one and can violate the Sherman Act.
>> Okay.
I can see that I've used up all my time.
>> I'll give you some rebuttal. Thank you.
Mr. Michael going first. Michelle Michelle. Okay.
>> Thank you, your honor. And may it please the court. Chris Michelle representing the National Association of Realtors.
I'll lead off with several grounds that um support affirming for all of the defendants that my colleague Mr. Van Orort will add some further points uh including with respect to the brokerage defendants. As the district court correctly recognized, Homie's claim fails from first principles, the core element of a section one Sherman Act claim is an agreement, not just any agreement, but an agreement to engage in anti-competitive conduct. The anti-competitive conduct that Homie alleges here is a boycott of its business in Utah. But the fundamental problem with Homie's claim is that it is not plausibly alleged that the defendants it sued agreed to engage in that conduct.
Homie principally points to the National uh Realtors Association rules, but as Judge Murphy pointed out, those rules govern discrete aspects of operating the MLS. That's the multiple listing service. They don't say anything about how realtors deal with each other. And they certainly don't say anything approximating that realtor can boycott or refuse to deal with others. Those rules are thus categorically different than the kind of rules that my friend pointed to when providing direct evidence of a boycott uh a group boycott or a concerted refusal to deal. Uh the rules also have plainly valid justifications uh that my friend fails to exclude. For example, they help facilitate transactions between buyers and sellers by matching willing buyers with willing sellers. And in fact, the absence of the effect that Homie is pointing to is particularly clear in this case as this as the district court observed because the rules were in place for years while Homie was thriving as a brokerage. So its reliance on them is both implausible and time barred under the statute of limitations. Their theory is that the rules um facilitate this group boycott um because otherwise without the rule um individual brokers really wouldn't have access to information in a efficient way. So by adopting this rule, you know, the brokers have built in a mechanism.
The associations built in a mechanism um to assist um that class of broker brokers that want to avoid low um low buyer broker commissions. And the effect on that is it harms homies business. Why isn't that at least enough at the 12 um rule 12 stage to get over get over that >> right >> to dismiss?
>> So, several responses, your honor.
First, uh I think the notion of the rules facilitating a group boycott is a concession that the rules don't actually require or provide for a group boycott.
So, we're out of the world of direct evidence. We're out of the world of cases like in NC NCAA versus regents where the uh NCAA rule expressly excluded uh certain broadcast networks.
We're in the world of circumstantial evidence and >> Associated Press.
>> Associated Press again was a rule that allowed exclusion uh of new members. I I take it my friend argues there was a veto, but that's an exclusion rule. This is if you look at these rules and I they are a bit complicated. um they're at pages 7 through nine of our brief, but it's not complicated to read those rules and recognize that they don't say a thing about boycots or exclusion. And when you contrast those to cases uh in which courts have found root boycotts, it's it's striking. So we're in the world of circumstantial evidence and as the Supreme Court said in Twambbley and as this court said in the I believe it's pronounced Wakua case uh you in that circumstance the plaintiff even even at the 12b6 stage has to exclude the possibility of independent economic motivation as opposed to agreement to explain the conduct. And here there's a perfectly natural independent explanation for the broker's conduct and that's that they want to transact with brokers who offer them higher commissions. That is a much more straightforward explanation than any kind of agreement at the national realtor level translating down to the brokers in Utah. at this point uh at the 12B6 level isn't it appropriate that that you uh the district court allow for either possibility and that is that that uh the possibility that that brokers will act in their own self-interest or possibly combine and conspire. know your honor with respect. I mean that's the import of the Supreme Court's decision in Twambbley and this court's decision in Wakua which is that uh the plaintiff in in a se I mean these cases are directly on point a section one Sherman Act claim at the pleading stage. The plaintiff must negate the possibility of independent action and as the Supreme Court explained uh that's for a number of different reasons. It's very easy to allege uh concerted action or or parallel conduct in the context of antitrust claims, but it's it's very clear that's not what the Sherman Act reaches. If the Sherman Act reached all parallel conduct, it would cover all kinds of procompetitive actions. It's the distinctive agreement to engage in anti-competitive conduct that the Sherman Act reaches. I think on this facilitation point too, the Ninth Circuit's decision in Supermarket of Homes, it's a case we cite in our brief.
particularly helpful uh in that case. Uh it was conceded by the realy board that it provided information that local brokers could use to steer their buyers away from uh from discount brokers and the ninth circuit correctly held in that case that there was no conspiracy by the realy board to engage in the bro in in the boycott. All it did was at most create the conditions that the brokers could use. And I think again the Wakua case makes that point powerfully there.
The argument was that these uh associations >> ru rules that uh can be misused are not >> contract accommodations or conspiracy.
>> I think that's a good way to put it and I think that's the way the Wakua case puts it too. It says in that case there was these rancher associations that filled out these job orders. The allegation in that case was wage fixing.
And this court in a in a powerful opinion explained that the mere fact that the trade association sort of created the framework or created the conditions in which individual members could engage in uh anti-competitive conduct did not create a plausible inference at the 12b6 stage that the uh trade association was liable under section one.
>> That ca that case did there wasn't a rule involved was there? there was not a rule involved. But I actually think we're in the same context here because the rules involved I think my friend more or less has to agree the rules don't directly require a boycott. So the rules of circumstantial evidence just like the trade association structure was circumstantial evidence in that case.
>> Uh I think maybe I'll turn the podium over to my uh to my colleague Mr. Yes.
Do we analyze the discussions that we've been having under a standard a standing rubric or under a rubric of just failure to state a claim?
>> I think you can you can do either. And here's how I would combine that.
>> Would that be consistent with the presentations?
>> Yes. So I think that the >> either one would be consistent with the presentations. Yes, I think primarily, you know, so the district court held that there was that there was a time bar and that there was no antitrust injury based on the rules themselves. I think most of this appeal has been about Homie trying to loop in uh the local brokers into uh in into the conspiracy and for that reason much of the discussion has been about the 12B6 standard on the conspiracy itself. The district court did address that issue, too. Um, but I I think all of those are independent grounds to to affirm. So to answer your question directly, I think you could say they haven't pled a conspiracy under 12B6 and be done with it. I think you could also affirm on the particular grounds that the district court identified and that Homie has not refuted.
Thank you, your honor.
>> Thank you.
>> Good afternoon, your honors. Uh, may I please the court? I'm Aaron Vanort. I represent Anywhere real estate and I'm arguing also for ReMax.
The defining feature of this case is that Homie chose to sue national entities that did not engage in or agree to the local Utah conduct that it alleges injured it. And we have now seen that there are three cases that the parties site that all involved local discount brokers like Homie that alleged antitrust claims based on a supposed conspiracy to exclude them. It's the Penn case from the A circuit, the park case from the fifth circuit, the supermarket case from the ninth circuit and everyone follows the same pattern.
Every one of them is willing to find liability for the people locally who involved and agreed to and participated.
And none of them are willing to find lo liability for people who weren't involved and didn't participate. And the problem Homie has is because it's trying to state claims against national entities that weren't involved and didn't agree to it is it has to stretch.
It has to stretch back in time to N rules that were in place two decades ago. It has to stretch on the rules of agreement and argue that by agreeing to rules that don't themselves agree to a boycott, they're agreeing to something else. Or it has to stretch on causation and say instead of agreeing to something that directly cause their injuries, there's this whole facilitation in indirect. So it has to stretch in one of those ways. The district court threw it out on stretching on time and stretching on causation. and you can throw it out on stretching agreement, but the whole problem is it's trying to sue people who didn't participate in or agree to it.
Now, you heard council for Homie this morning concede that the N rules, the trade association rules do not contain an agreement to steer clients away from Homie or anybody or boy. He conceded that and he had to. His his complaint, the paragraphs of the complaint, there are nine of them. The only time they ever address who engaged in or agreed to, it's always the local Utah folks.
The only thing they alleged that the national folks did is agreed to the N rules which do not agree in the boycott.
Your honor, this is analogous to the Yakua case where there likewise that the principle is that agreeing just to join a trade association does not mean you agree to everything those members do.
That's homiey's argument is that if you agree to join the National Association of Realtors and agree to to these rules that just disclose price, you're agreeing to everything everybody does.
So my client in New Jersey minding its own business wakes up one morning and says, "Wait, we're responsible for what that happened in Utah? We didn't agree to that."
>> But was ReMax on on the N board that ratified the and re-up these rules each year?
>> Yeah. Yeah. It's it's not that there is an allegation that anywhere in RE/MAX were engaged in the rules. But the problem is, your honor, they've conceded the rules don't agree to the boy.
So they need an agreement to the boycott. And that's the problem. It's like nobody by joining N agreed to steer clients away from Homie or boycott it.
They they've conceded that. They don't plead it. So then then they're left with the causation argument, your honor, which is that okay, you agreed to something else that facilitated it. And the Supreme Court is now clear in associated general contractors. The rule is proximate causation, not indirect.
This court's decision and sharp says it has to be a direct result of what you agreed to, not an indirect. And your honor, I you thought of a phrase I I hadn't thought and wasn't in the briefs.
Agreeing to rules that can be misused.
It it that's not an a conspiracy itself and it's not causation of it either. In all of the cases council for homie sites where there is liability directly for the rules, it's because the rules themselves agreed to the exclusionary conduct. It's either directly exclusionary like we will not allow you to join. We'll we'll nx you out. That's the rule, right? That's obviously agreement and it's direct. And the other ones the you know the old case they go back to the to the wages of sea workers.
There was an agreement to eliminate competition and set the wages. Of course, the rules directly did it here.
All the rules did, the main one is disclose price. But of course, homie needs to disclose the price. It was competing on price. They they have literally no case, no case where just disclosing price to the people who would engage in the transaction has ever been found to be sufficient of a conspiracy. And the supermarket case in the ninth circuit that we've cited directly draws that distinction. It says no that's not enough. That's not enough. So it just to go to back you there's a consistent pattern here when it's discount brokerages in real estate. You can state claims against the local folks who agree but not against other folks who didn't agree and didn't participate. And and that's what they're trying to get past here. And that that's the fundamental problem. Your honor, I if you have a question, I want you to be able to ask it.
>> I just have a big question mark. That's my face.
>> Oh, okay. Uh well, um if your honors don't have any other Oh, go ahead.
>> is do do you think the primary flaw here is a lack of a plausible allegation of antitrust injury? Um or is it implausibly alleged causation?
Yeah, it's it's a disconnect problem standing.
>> Yeah, it it's it's not like an article three standing to sue. It's not a lack of injury. The fact is that the injury they allege that would be an antitrust injury is an injury caused by local folks if there was an agreement among those folks not to do business with them or to steer. So you're unilateral conduct unilaterally just refusing to deal because I don't like your prices.
That's not an an antitrust injury. There has to be an agreement. So, if there were an agreement among these local Utah folks, I'm finishing.
>> If there were an agreement among the local Utah folks to to steer business away, it would be an agreement, a conspiracy by competitors to all do that. And as a result, Homie is driven out of business. That's an antitrust injury. But the the problem with these defendants, they can't peg that injury to these defendants, the national ones, because we weren't there. We didn't participate it, and we didn't agree to it. That's why there's a causation problem if you're trying just to to tie those local injuries to the N rules. If you try to get around it by saying, "No, you actually agreed to it." There's an agreement problem because we didn't. So the the and if you try to go back, you run out of time. So like I said, there are different doctrinal ways you can get at it. And the district court did two of them. You could do another, but it all comes down to the fact you're trying to sue people who didn't participate and didn't agreement. And so you have to stretch something to try to get that done. And that's clear on the motion.
>> Okay. Thank you.
>> Thank you, Mr. Rener. You can have two minutes.
>> Thank you very much, your honor.
Council cited three cases uh that the appellies claim go their way.
Supermarket of Homes, Park, Penn. I believe council for the appelles misstated the holding of Penn. summary judgment was actually denied in a challenge to the rules of a multiple listing service that allegedly facilitated exclusionary conduct. It just went the other way. Uh Park didn't involve a challenge to an association rule at all. So it's just a different type of case. Supermarket of homes is a good case for the appelles, but it's factually and procedurally distinguishable. First, it's summary judgment. Second, there's no analog in Supermarket of Homes to the Commission filter rules in practice. Supermarket of Homes would be analogous to Homie bringing a claim based purely on the buyer broker compensation rule that I discussed with you earlier, Judge Murphy. But there are other rules here that do like the commission filter rules in practice expressly on their face mention steering and well they mention excluding the listings uh based on low cooperative commissions and the presence of those rules distinguish this case from supermarket of homes. Also, one reason summary judgement was granted in Supermarket of Homes was that there was no evidence that the brokers who were part of the MLS were talking to one another about the exclusion of the plaintiff. But there is that here paragraph 76.
>> Are you saying then that that of the what there five rules that are focused on uh that the first on the disclosure of information on the listings uh is really not important to your claim? No, it's it lays the foundation for the steering by by requiring the disclosure of the low buyer broker commission in the MLS. It sets the factual predicate for the steering that that that's then affected through the commission filter rules and practices among the other rules. If >> if that were the only rule, the broker compensation rule, if that was the only thing we had in this case, um would you lose?
>> Probably.
>> In other words, you need the other rules.
>> Yeah, I think so. I think so. M >> were the the other rules are would you characterize those as enforcement rules?
>> They're they're they're rules that amplify whatever exclusionary effect is in the buyer broker compensation rule.
They're rules that manifest the institutional commitment to the encouragement of steering.
If I could just have 15 seconds the the council for both appelles articulated a rule that uh respectfully is contrary to the Sherman Act. So you heard twice um quoting rules that can be misused cannot be contracts, combinations or conspiracies.
As an officer of the court, please don't hold that the the element of concerted action under the Sherman Act is antecedent to and distinct from the unreasonable restraint of trade element.
That's American needle. So rules that can be misused are concerted action within the meaning of section one. You might think that we've >> but but but the misuse has to be pursuant to a conspiracy.
>> No, no. The rule is the conspiracy.
>> I thought the rule was just the facility and that you you you have this rule and it can and you can misuse it.
But you have to misuse it in conspiring with somebody else to do it.
>> The rule is the conspiracy the Supreme Court has so held 16 times.
I appreciate uh the court's indulgence.
>> Yeah, your time's exc uh expired.
Appreciate the arguments this morning very much. Um the council are excused and the case is submitted and the court will be in recess till tomorrow morning at 9:00.
It's good to meet you guys.
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