the united states court of appeals for the th circuit is now open according to law got save the united states and this honorable court good morning everyone we thank you for appearing at this hearing by  just as a point of information this panel has fell two days of in person hearings and as far as we know they went splendidly well with appropriate precautions so you might bear that in mind if you get the opportunity to in person the lawyers who did so seem to appreciate that experience a great deal and frankly the panel did as well but here we are in this weird time and we're this is the only way we're moving cases this is not the only way but we're moving cases along i would like to issue a few preliminary reminders you're not allowed to video photo or record this session any more than you would be if we were in new orleans i would appreciate if you mute your telephones or any devices you may have in the background and  of this presentation we will give it well since you divided up your arguments i don't normally we would give each side five minutes running room without asking questions but since two of you have very short times i think you'll be open to questions i don't think we're going to ask for your too much we will make an effort not to do so and i'll go ahead with the normal rule statements which are that they're the timer is going to work as it always works and they yell a yellow light will come on you may not be able to see it too well but it will come on  when you have two minutes left and then when the red light the timer winds down to zero we ask you conclude your argument as quickly as possible in less you're answering a question  counsel we've read the briefs and record excerpts we've not necessarily read the entire record so we've your record citations ok i just spoke with her she said her computer just alrighty well as was said at the beginning misc off your picture it's not too clear son kay said transmission problems will make every effort not to interrupt much of your presentation and with that  counsel my client brittany gets was convicted of conspiracy to distribute and possess with intent to distribute fifty grams or more of methamphetamine that arrived at their doorstep in officer who was disguised as a fed ex person left it on the door knocked on the door and walked away this box was sent by britney gets his boyfriend mr goulden mr goulden and relationship as could be told by the fact that the facts of the text messages that were exchanged between the two in this case the government wants  without showing that she knew what was in the box that she knew that the scope of the conspiracy was fifty grams or more what they have here is only inferences those inferences are based on a fight between her and her boyfriend because she said some things in that fight such as pardon my french i'm not going to accept her shit anymore she had told him to get out she had told him to come pick up his stuff she told him she did not want to get this package but the package was already on the w mr goulden in text messages told her hey this package has a gift for my daughter there is no evidence other than inference that brittany gets knew what was in that she seemed have a chance to refuse the package it was left on her doorstep as i said she had no way to decline the delivery mr goulden said hey i'm sending you some stuff but he didn't say hey i'm sending you some drugs whether she or not she knew what was in the box is definitely speculation and there's no evidence that she knew that the scope of the conspiracy it was at least fifty grams or more it's a leap on both issues as to whether she knew how much there was in the box or what was in the box the government is trying to tell you that a girlfriend due to the relationship should know everything the boyfriend is doing whether he was doing drugs if he is what w whether or not this was a good actually a gift for the child every indication shows that when the the officers breached her door and came in the only package that she had opened was the outer package and she told them i was just me and snoopy i did not open the interior package is a matter of fact she said she told him come have your boy come get this because i don't want so mr walker apparently came and got the box but the box interior box the evidence is just not there there is of course you can do circumstantial evidence but in this case its influence upon inference upon inference to the government wants you to believe that she knew based on the fact that she had a relationship with this guy and that's simply not the case the relationship alone doesn't do it the her panic and  making false out false statements to the police afterwards yes we would concede that there is some inference that could be raised there but she still said hey i thought that was a birthday present i thought that was a birthday present every indication shows it was probably a birthday present the fed ex person thought it was a birthday present the one in california when it came to the door she opened it up it's wrapped up as a birthday present she didn't open it up there's simply no evidence that she had knowledge that there was methamphetamine in that box or if she did how much it was there's nothing to show that she ever dealt drugs herself that she participated in weighing or packaging or delivery or accepting cash there's no indication anywhere that she had any amounts of cash that would be on usual for a person in her position they found nothing in her house that would indicate that she was dealing drugs the only thing i was just and if it was out of the question birthday present with the child then why would the  cust odio rights no visitation as far as i know and the child was not in the home there's no evidence that that when the last time the child had been in the home there's even text messages back and forth between mr get miscoded mr goulden and mr gifts that look i'm not even going to be home and he's like well you got to be home you know when she was she had a girlfriend over why would you have a girlfriend there when i'm trying to deliver something to and she's like why yes but meant misc off and your time is up by the way but unless one of the others has a question why would she be why would they be texting frequently about the delivery of this package if it was just a doll in a box which could be easily left outside as many ordinary packages are they were still in a relationship they texted a lot this was apparently an important package to him wasn't that important of a package to her one for heart was a gift for this child that was her understand so thank you very much thank you ana next we'll hear from fact and i have found that all of the elements of the crime to prove beyond a reasonable doubt and it's our contention are is that there wasn't sufficient evidence to prove that mr walker knew what was in the box based on the facts that were presented in the case specifically and it's basically that mr walker mr goulden had texted before that mr walker had mr goulden listed in his phone in the evening trouble and that they communicated twice by phone and then once by text message before mr cited by both parties in the briefs the question becomes when you have a situation where someone's present presence alone is not enough amongst at the scene of criminal activity and that doesn't lead anyone to infer beyond a reasonable doubt that they know what's in that we don't have specific communications that indicate any of that continent you know like we do in some of the other cases  and i would say that if you look at some of the other cases that were cited by both parties the true guidance and maura each one of those defendants has more incriminating evidence and more surface circumstantial evidence that points to their knowledge than we have in this case i forgot that mr walker make the claim that he was just picking up a baby doll or a doll i'm going to where your honor i think that the i think that the the specifics about his knowledge were not present in the record i could be wrong of that please forgive me i don't remember who who had that specific knowledge but it is my understanding that mr will there wasn't the knowledge of the continent or text messages the super that the fed ex receipt that was sent to him but we don't have that there the content of the back and forth that we had with was with perhaps the other codefendant and of course that was a one hundred dollars overnight shipping charge this mr goulden was unconstitutional a detainer on the side of the road in excess for more than twenty minutes after the issuance of the citation violation of the united states supreme court case in rodriguez rodriguez only allows far detention for gives an officer time reasonably to complete the mission of issuing a ticket or the mission for wish to defendant was stopped all of the facts of this case indicate that the st let me make it clear we're not challenging the initial stop we've conceded that the initial stop was proper under louisiana law i don't think that is an issue the only issue is whether or not he was detained or prologue when constitutionally thereafter so that the officer could retrieve a dog a canine dogs to sniff the officer interviewed mr good for approximately six minutes the would advantage of this case there is a videotape that should be a hundreds the officer side and his vehicle far proximately thirteen minutes during which he obviously various phone calls or radio checks background checks and even drew up a search warrant that adds up to about twenty minutes at that point he approached mr goulden mr goulden declined to sign a search warrant be issued mr goulden a ticket and any gazed at further conversation and then at that point after twenty minutes decided that oh i'm going to call a washer talk parish canine unit which took an additional twenty minutes to arrive at the scene so the actual dog search did not take place till at least forty minutes after the initial stop we believe that this matter is in violation the actual rule so stat it changes the rule and the work conspiracy is nowhere to be found in the definition of it in the definition of corby one point number one the most recent on states on his if he is a case idea that the application note is authoritative this that what you're saying i'm saying it's it's instructive but it's it's not to it may be a current taint if to the exception that it's not included declares would a term means excludes any term does not include a conspiracy is certainly not included in the definition itself is included in the comments and here's the bigger point that h proposed guidelines drawn up by the commission that are pending to be adopted by congress do now today the proposed guidelines include the word conspiracy in the definition so therefore i if so facto if it's included in the current definition then the citizen commission realizes it's not part of the current definition as we sit here today so therefore the courts cannot use the comments to supplement it the the the definition of noticing that i have about i'm going to have to go at certain like to go back to rodriguez case i believe in many ways it's two another large think just what it just be academic for us to address that issue here if there are these two other crimes this really interesting issue but would it be academic for us to address that putting aside the rodriguez suppression point perhaps but if you if you granted to rodriguez that takes away two of the of the chores of the job so if we don't grant on rodriguez it doesn't matter mr pearce thank you your honor scott morning if it please the court james pierce of the united states the defendant's traffics drugs from california to louisiana the district court correctly denied gooden suppression motion  they get sufficient evidence supporting to get says and walker's convictions and this court has already decided and need not do so again here that a drug conspiracy qualifies as a controlled substance offense for purposes of the traffic purpose but it carves out the unless reasonable suspicion develops over the course of that stop and here reasonable suspicion developed almost from the very moment the stop happened gooden got out of california car in someone else's name with suspended registration gooden said he was a lifelong california resident but then had a louisiana id and when asked about that said quote it was good to have one quote all of these things created reasonable suspicion in addition there were discrepancies and i'm putting aside the fictitious i d because the officer didn't know that on the ground but there was a difference between the height listed on the fake id and then there was a difference between the criminal history that was associated with the fake individuals with the fake individual and and the actual response that goodin gave so they were fifteen or so convictions for battery and drug convictions and burglary and gooden when asked said i just a couple of our fights so all of that created reasonable suspicion once there's reasonable suspicion the officers are  allowed a reasonable amount of time this is not governed by rodriguez to either confirm or dispel that reasonable suspicion and the twenty minutes or so that it took to get the dog on the scene to perform the search to start to perform the communication that establishes the close nature of their relationship the jury could from infer from that that these would be individuals which trust each other with drug related information the idea that this was a birthday present or specifically a baby dall certainly that's what wanted to reject it she had given good in the address the day before and if she wants to reject the package why did she pick it up take it into a closet and open it that doesn't sound like the kind of actions that would reject a package  d i heard this kicks attorney say that you know she just said i'm just sick and tired of your s word what she actually said is you know i am not going to once i take all this s word this time don't send me any more and i think that's an important difference right i mean that recognizes that i'm talking about a specific thing this s word doesn't sound like the kind of way you would describe a dollar or a present i think a jury could fairly infer from that that we are talking about controlled substance about methamphetamine and so the receipt as well which which judge jones preferred to both kicks and then walker as well received the receipt and saw that this was a one hundred dollars overnight shipment again i think the jury can fairly infer from that that this is methamphetamine and quite a large amount of it and in terms of the amount the four hundred and fifty grams that were all ultimately found when the package was intercepted at the fed ex facility was nine times the fifty grams threshold to kick in and the penalty and support the conviction is well  before my my and question time elapses i just want to quickly address and of course then welcome the court's questions the sentencing issue this is purely academic his judge said there are two convictions substantive convictions that have nothing to do with the conspiracy the prior convictions are not the prior convictions are from much earlier twenty million thirty two thousand and four cases and so this court need not address the conspiracy question and even if it did it's bound by the the light borne decision of the notion well you're off you're off your time limits now and certainly the has to d o j adopted any position any position on that in light of cases like these are so our position continues to be that in line with the supreme court's decision instance and that an application note is it's authoritative so long as it is as it is not inconsistent with already plainly erroneous reading of the text of a guideline and we have post kizer we have continued to argue you know not always successfully and that my friend on the other side is correct but we have continued to argue that the text faithfully incorporates the application note one way i think to perhaps the best articulation of our position in another case is the court's decision is the lange decision cited are brief it's an th circuit opinion that says the use of the word prohibit in the in the text of the guideline is fairly construed broadly to it to then sort of incorporate or encompass included offenses as the guideline commentary makes clear again this is all all academic there's no reason both because there are other substantive convictions but also because light borne is is court's instructions here and i believe this is it our way for seventy one dollars charge that with the charge the jury with respect to the conspiracy that the defendants had to know or reasonably should have known the amount of the supreme court's misaki makes clear that the elements as set out in the jury instructions are the ultimate rest of the elements are what the elements are legally that if it's just within the scope of the conspiracy then  miss gough's knowledge isn't doesn't matter now again i guess we didn't press that argument in our brief and we draw on facts specifically the amounts the receipts and then judge smith as you said the amount of the drugs nine times the threshold are sufficient to establish particularly on insufficiency review that she knew that there were at least fifty grams of methamphetamine but again i'm not entirely sure that that's what was required but that's how the jury was the delivery happens in october of two thousand and seventeen in august of two thousand and seventeen gooden reach out reaches out to walker and says you know here's my new line here's my new way of communicating with you forty five minutes before the package delivery happens that you have a phone call and speak for about five minutes eleven minutes after that they have another phone call and speak for about a minute and a half good and then texts walker the same fedex receipt and manifest that he has already text that is to get  other words here's the really expensive overnight shipment that you should be looking out for and then there's also the communication that i believe mike the attorney for  gets in her communications with gooden says you know just have your boy come and pick this up right and lo and behold walker shows up a few minutes later to come pick up the package and refusal of the of a consent to search would seem to trigger that and i'm saying that's not a legitimate reason to trigger that so so certainly that refusal searches is not a legitimate reason it wasn't considered as such by the court below we didn't argue that in our brief but to more directly answer your question i think at least by the time that the officer notices the height discrepancy right so even before he goes back to the vehicle impossible impossible itinerary there's this very strange statement about i just wanted to have a louisiana id there's the recognition that it's been suspended california registration in someone else's name all of that supplies the reasonable suspicion then when you add into it and in our view this is still part of the traffic stop the discrepancy between the stated the actual criminal history of the of whatever d name is i think it's about to start or something and then when the officer goes back and says if you have any criminal history gooden says you know a couple of bar fights right in our view that's all you know reasonable suspicion is well established there but even before that there is adequate justification to conclude you know there's criminal activity afoot and a dog sniff is permissible to go ahead and  of them why was there and the delay in asking for it meanwhile wasn't he calling for i really care if it's it's already so clear i mean i guess you did wait until the time where he went back to ask about his criminal history and said then it would go back to the car again and since so i think if you knew earlier then why did he but i well i so i think that there's a quite straightforward answer to that question which is the obvious or interacts with good he goes back to says hey go ahead search my vehicle no problem there's no reason to call it their drug dog to come in do a sniff and then possibly establish probable cause to get into the vehicle if you can sense that and they're fine the search can happen if he doesn't which he doesn't ok then your backup is let's kick in motion the call to the dog you know the dog going to arrive the dog has the sniff then there's a p c to get in the car so it's you know why have all of that other stuff goodness is going to just consents to the car to the the if the trooper believed that there was reasonable suspicion or probable cause myself in the state so the government sort of dispute whether wish which  took thirteen minutes to prepare various documents why didn't he call for the dog during those thirteen minutes he knew politically legibly bay so at this stage that i mean the government says i'm sorry i'm used to do is to court cases and under this court's decision brigham it says the traffic stop ends when the ticket is issued so when he comes back out of the vehicle if he had concerns that mr goulden was not being truthful then perhaps he could have engaged in further conversation which he did but he issued in the ticket so when he gave him the ticket but law mr goulden was free to lead does stop was completed there was no further that's what officers start illegally detaining my friend for the government says we cited no cases but if you look at our reply brief one case albeit from a district court in virtually identical same area same interstate virtually same facts argument about nervousness vehicle registered to the rd party it consisted of ten or riri and the district court suppressed citing discords case and spears and spears dischord said dad placing the defendant in the back of the vehicle when it took twenty three and a half more minutes for the dog to arrive just prolong the detention violated the th amendment so to wrap it up real quick the the nd argument concerning d the conspiracy issue is not academic because i'm going to assume it argued that  court would find enough reasons to suppress so if you do that you knock out two of the three carter convictions always left is the one with the conspiracy with the two priors from would three o four i don't dispute the three of the thirty force then you stuck with the one for conspiracy and the two older ones so you have to at least address how are you going to address the d conspiracy argument and i think that question it's that that the district court could have ruled to suppress given that the totality of the circumstances and did so in another case does it mean that we would correct i think the court even struggled in this case correct me if i'm wrong but i believe the magistrate's recommendation even indicated it was a close call but i don't believe it's that close because  you know just discords said in jones in two thousand that even a trivial de lay of three minutes was too low so you have you have a series of cases from this court you have  you really don't you know if to wrap it up if the officer would have learned or engage in conversation regarding past criminal behavior itself necessary call dog before giving a ticket my friend on the other side i think his argument would be a lot stronger not position and mine would be weaker but once he gave him the ticket in your big that's it two feet as they say in french and i'll stop and you are funny