today the st one ruling versus mobeen has been submitted we'll hear argument the moment we're meryl milan couple things for council remember st keep track of your time if you want to reserve time you can but it's on you to make sure you keep track of it nd we have three case a day with some similar issues and so i would just remind counsel that there are no bonus points for using all of your time if you have major points and we're kind of just sitting up here  of looking at yes and you don't have a lot more to say so ok sit down you don't have to use every nd of your of your clock is up to you but it's not like we say oh he'll only use eight minutes so he loses is not how it works and so with that we go ahead  qualifies as a controlled substance offense under the i name it does not mainly on the face of the statute it says a drug it's a generally worded strip statute and it has its own definition for a drug within the statute under three thousand four hundred and fifteen dollars f which says if a context otherwise requires a drug means any of dangerous drugs narcotic drugs or marijuana the word any should be given it regular meaning and this case is akin to be of the sense yo which the government cited but didn't elaborate on in that case in nevada statute says any drug and then they also considered unpublished decisions to state that the jury did not have to be unanimous on the case so this case is very close to be a be sent and actually it stronger the agency relied on state b castro to determine what the elements of the crime are stay be castro divided into three elements and in the rd element they have all the ingest repacked and and the types of abuse and it says at the end illegal drug it's very important that in state be castro they contrast that to the transportation of marijuana statute and under that when they break it into four elements and the drug marijuana gets its own element if state b castro wanted to say that naming the drug was an element they would have made the element number for illegal drugs but they didn't do that it's all placed into one big element under element number three so the statute on its face means that it's into visible the other things that we look at in the statute are all the instructions about considering  circumstantial evidence so if you have a drug paraphernalia and it's him proximity to drugs that's good enough if there's instructions on how to use it for drugs that's good enough it's also in this statute the word drug and drugs extension five they instruct the jury that you must in fact find that the drug is marijuana you must in fact find that the drug is a narcotic drugs within these jury instructions they don't do that also the jury instructions are not the law it's just a guide for the court to go on the other thing that undermines that is stevie lives in that case the facts were that there were fourteen pieces of drug paraphernalia in proximity to marijuana and methamphetamine lodged challenge the entire thing as duplicitous basically saying look at all these different paraphernalia as you can't do this to me and in the end they said it doesn't matter as long as it's related to any kind of drugs even if there's multiple drugs and multiple paraphernalia it can sustain one conviction so in that they up held a conviction for one count of drug paraphernalia that included various drug paraphernalia those for use both marijuana and methamphetamine and they were not concerned whether or not the jury had to agree on one drug or another which is consistent with the statute finally the only other argument that the government looks to in unpublished decisions in arizona is state v martina's they try and state that there that there's one drug paraphernalia for two drugs i believe it was heroin to methamphetamine and they're saying that sustained two counts of drug paraphernalia but that's not what the case states that case is all about the admissibility of the person who analyzed the drugs and in fact there were four drug counts and there was a possession of heroin the position of methamphetamine and two counts of possession of drug paraphernalia the court doesn't specify what the evidence was used for whether it was used for one drug paraphernalia conviction or two and it doesn't specify if the other count of drug paraphernalia included a different type of drug paraphernalia other than the actual scale it could have been a pipe or whatever so they're not specific in that case about what it is and state the lodge's accident closer to the point so it's more persuasive than the cases they stipe the government has also cited a long list of cases to try and state that the drug has to be tied to the paraphernalia or you could get multiple convictions but a review of those cases don't really show that they're on point the various cases show different types of paraphernalia for each of the counts so it's really related to the drug paraphernalia they've maximum penalty change based on the type of offense in this case no even if it's methamphetamine it remains a classic phony the maximum penalty stays the same it only affects whether or not how the court considers probation says no mandatory a one there's three minutes re act two of them result in a misdemeanor one which is a higher misdemeanor for intentionally or knowingly causing physical injury but if you do it recklessly then it's a misdemeanor to which is a lower offense so i think that's what mathis is considering and finding elements that's a type of statute that would break down different penalties based on different elements finally this case even if the court is not convinced by the state  statute the unpublished cases or the jury instructions we take a peek at the actual documents in these documents we have the indictment the plea the sentencing order and also deeply transcript the only place for cocaine is named as in the indictment and it says cocaine per person ilia to ingest use to introduce an illegal drug into the bodies so they say it's bill caper familiar but then they keep the generic are things that the police must necessitate that they actually admit in this plea transcript or they say that it was a snorting pipe used for the ingestion of narcotic drugs all the other elements are there and they use the needed to be name instead the prosecutor says no everything looks good even then after that said well ok we'll accept the plea here and then later we'll do sentencing so based on all of the factors that are supposed to be considered or mathis all of those factors weigh in favor of the petitioner in the end even if it's not clear the government hasn't met their burden and taylor demands certainty about whether a case is divisible or not or a statute is if the court is still not clear ask is there any logic behind the result that you're advocating mean in the particulars of this case is there any real doubt as to what narcotic drug was involved it doesn't matter and as it is there any real doubt goodman's to the question no there's no doubt before you explain why it doesn't matter but i think there is no doubt you acknowledge there is no doubt as to what drug was involved here right in in he so letter day logic if we know that the drug involved was not and i will mispronounced these benzo front mole and thinly front and all the the two substances that make the arizona list mata match with the federalist or those even snorting drugs i mean is could could the paraphernalia involved here have been ever used in connection with those substances i think the practical effect here is the conservative nature of the categorical approach that the supreme court is imposed the state is very aggressive about getting convictions for drug paraphernalia and that's why they've generally worded this statute to just say drugs it makes it easy on the jury and the judge to just say oh we're not sure about which drug that's what we're going to convict on but the the congress has specifically says it has to be a drug as defined under the federal law they don't want somebody to be deported based on a lower standard where the federal law is going to require that it actually prove the specific drug and that it falls under the controlled substances act so i think it's protected general doubt that congress wants someone to have been deported if that person had been convicted of exactly the same offense only with the statute that specified that it had to be cocaine or had to be something that's a match for the federal statute well there's competing interests they do want that but they also want the person to have a fair process of their due process so that's why both of those things have to interplay for it to work now a lot of times what congress writes doesn't make much sense and it's not fair but that's the test come out and applying that test it still weighs in favor of the applicant who is just asking for the chance to apply for the green card in the end congress still laid out for the judge to say in my discretion even though you're eligible you did all these bad things i'm going to decide whether or not you're a person deserving so congress still has another lash to decide whether or not somebody who has engaged in criminal conduct but is not disqualified can still say you're not deserving good morning your honor isn't it please the court in runs a day for the attorney general i'd like to start by clarifying the lineup of immigration cases before the court this morning as you know to judge jones there is a full slate of divisibility issues relating the air relating to arizona's drug laws two cases and then i'll return to argue the nd those cases and i assure you we will avoid any bonus points in doing that your honor starting with drug paraphernalia section three thousand four hundred and fifteen we think all of the mathis factors here the statutory scheme state case law the jury instructions and a peek at the conviction records we decisively in favor of divisibility if you start with the statutory scheme arizona sentencing guidelines prescribe a different and higher penalty for those possession and use offenses that involve methamphetamine now we know from madness that if statutory alternatives carry different punishments then under a presently they must be treated as elements and to opposing counsel's point just now about how under the the meth enhanced in the statute you if your crime involves met then you will no longer be eligible for it as a mandatory matter but then you still can receive it as a discretionary matter so that it doesn't actually change the penalty when he leaves out is that the way that that enhancement actually works is that your maximum possible penalty for a st or nd offense that's not violent isn't probation this is part of a diversionary program in arizona and under prop two hundred dollars the maximum penalty for such an offense would have been probation no prison time if that offense involves methamphetamine then immediately your maximum sentence can very much involved prison time jurors could convict for this statue even if one thought it was one drug and another thought it was another drug no your honor they didn't and enlarges frankly largest don't doesn't shed any light on the divisibility question in this case and that's because the only thing that issue in law is the only defense raised by the defendant was whether or not the drugs in fact belong to him belong to her i believe there was discussion of duplicitous charges and that's i think what you're  getting at there was some complaint that perhaps a jury could have the jury could believe that one thing was at issue and half the jury could be the could believe another was at issue that was specific to drug paraphernalia if you look at the end of that case there are specific discussion of what defendant had said with respect to  duplicitous charge argument and knew was that half of the jury might believe that one hundred dollars piece of drug paraphernalia was involved and half the jury could believe that another was involved and so petitioners reading of that case is simply not consistent with its own tax it's also not consistent with three of the cases that we cite in our brief stephen scallion stiffle all say the exact opposite of what he read that case is suggesting which is that a jury all those cases stand for the principle that it no reasonable a reasonable jury needed to agree unanimously on the specific drug substance in a paraphernalia offense now in arizona law i think the case that sort of speaks most clearly to divisibility here and it's a case of opposing counsel mentioned a state versus martinez in state versus martinez contrary to what petitioner just said there was one piece of paraphernalia that could even have related to the two substances mentioned which were heroin and methamphetamine so there was one piece of drug paraphernalia a weight scale and the court sustained two convictions based on that one piece of paraphernalia because it involved two separate substances now this confirms and this is consistent with exactly what this court relied on in martina's lopez one simultaneous criminal act involving multiple substances yielding multiple convictions that's exactly what state versus martinez stands for because it again had just one piece of drug paraphernalia two different substances that's what this court relied on in saying that california's drug schedules were divisible counsel do you think it's possible that we could consistently agree with you with regard to the drug paraphernalia case but disagree with you with regard to the other two cases you're o analysis for paraphernalia versus narcotic possession statute is certainly different in the sense that you're looking at a different statutory scheme different jury instructions different state case law relating to those two statutes i think practically speaking they're going to be fairly similar you're looking at the intent of the legislature and how they wanted these prime these crimes to be proven so the government's overall candid view we pretty much have to go one way or the other on all three you know no your honor i think i don't think that the cases stand or fall together but it does have it just certainly is the case that the way we argue both of these cases and we believe the with the evidence comes out in terms of the math as factors there's no question that they satisfied  has to be interpreted especially the way that this court ruled in martinez lopez so yes to your answer to your question very quickly i think the court could come out both ways but it's probably unlikely that it would one other way in which arizona case law supports beyond state for smarties which we think speaks very clearly to divisibility in the exact same way that martinez lopez does is just on a broader level paraphernalia statutes make clear that the drug paraphernalia themselves are not necessarily bad there's nothing you know unlawful per se about having you just look at the drug paraphernalia definition it involves household items blenders bowls spoons what makes those things bad what makes them criminal is them being tied to a just drugs in general so there's spoons for cocaine there's some types of filters for hashish and then there's a few different paraphernalia that are defined specific to marijuana now all of what we have just said your honors is consistent with the jury instructions for arizona which we think speaks perhaps most clearly to divisibility here because in three different respects arizona's jury instructions establish that you must named the specific substance in a drug paraphernalia offen so st the overall instruction and this is thirty four fifteen of arizona's revised jury instructions thirty four fifteen the overall instruction says you must insert the name of drug in the singular identify the drug which is exactly what this court cited in martinez lopez now the definition for a pair drug paraphernalia as part of that very same instruction says the very same thing must insert name drug in parentheses for a drug paraphernalia offense and then the last when which it supports divisibility is that the new snow for this jury instruction specifically says that items in bracketed material can be applied as appropriate suggesting that there's some discretion in how you might look at the facts of the case and then circle or fill in items inside the brackets the name of a drug that needs to be specified is not in brackets it's in parentheses there's no suggestion there's no indication that there's any discretion as to how that print those parentheses can be filled out it needs to be filled out in the drug is always indicated there so one of the people of the problems with the drug paraphernalia charges noted is that most of the items are themselves in oculus they're basic household items and so there's a need to indicate that the use of the item was with a substance that's unlawful so there's going to need to be identification of an unlawful substance and i would suspect in ninety nine plus percent of the cases there's not much dispute about what the drug might be and so it seems logical to me that some place you have to specify the drug or get the the jury to acknowledge and agree that there was an unlawful substance there and since the good then it is that substance is rarely in the spewed it strikes me as logical thing to do but if you could get a conviction without the jury actually having to agree unanimously that it was cocaine as opposed to heroin is that really an element of the crime if if that were true your honor the know it would not and but i don't think that is the case i think you're right practically speaking because there's not going to be dispute as to what the actual substance was many of these cases might not suggest or even would even be relevant to the question of divisibility but there is no question that if the jury instructions list a certain drug again even the way that you're describing just practically speaking you would need to identify to you know see how it ties to the paraphernalia there if the jury did not unanimously agree that that was the drug that was used or that was you know utilize somehow in connection with a paraphernalia then it would not sustain the offense and again that's where state versus martinez is very clear on this you have one paraphernalia and you have two separate and the courts sustain those convictions in the exact same way that martinez lopez relied on that in the california supreme court now the peak i think we also believe looking at the conviction records here you look at the charging document here there's no question the charging document identifies cocaine to the exclusion of other substances so that's the sort of last way in which we think divisibility is very clear here i want to very quickly address the sufficiency of the record for the separate question of whether once found a visible under the modified categor approach this records supports that this conviction involved cocaine petitioner suggests that the plea agreement here might somehow have altered the actual count that he was pleading guilty to an does not need to file a separate charging document if it is going to amend the actual count through the plea agreement it is explicit it will say on the st page this is an amended this is an amended count it would not be done sort of subsequence you know the way the petitioner suggests so there's no basis for his argument that he did not in fact plead to a drug paraphernalia offense involving cocaine and if there's no further questions  martinez lopez doesn't really apply here because in that case they specifically found there's a definitive answer in the california law that was already a published decision here we don't have that so martinez lopez was pretty much based on that even though they've conducted other analysis i still think that the government is misreading state the martina's because it doesn't say that that evidence was directly tied to any specific drug paraphernalia conviction as there were two separate ones and also two other convictions for drugs so it could have been for any of those counts finally the government wanted to remain on this case based on his clemente which is a b i a case that was found that three thousand four hundred and fifteen is in divisible and over brought up by a three member panel of the b ira they try and say in there remember not admitting any error we just want to reconsider but how did they get around the fact that they're arguing out of both sides of their mouth in fairness some people will go to the b i a and they dinos madrid farfan and also yep is there basically applying it in this way to arizona statutes and they are relying on unpublished cases to find that the jury doesn't have to agree and all of the it  it's a correct application of the lot of these statutes in the end they alleged a narcotic drug so even if you can go behind into those four different designations under the law under narcotic drug that is an indivisible umbrella term so in the end they still cannot prove the specific drugs so i think all of those things taken together are more persuasive than the whatever the government has cited in their unpublished decisions th