Legal Case Summary

May I please the court? I appear today on behalf of Corey Moore, who was convicted in the District Court of Maryland for various charges related to drug trafficking and possession of a gun in furtherance of drug trafficking. We wish to present two arguments, one of which we believe requires complete reversal of these convictions, and the other would require a resendencing. With respect to the first, all of the evidence that was introduced below originates from an unlawful stop by the police in Tacoma Park, Maryland. Of Mr. Moore, while he was walking down the street carrying a juice bottle. With respect to the second, it relates to the guns that were found as pursuant to the search warrant, and as this panel has previously heard this case, a search warrant that was conducted two days after Mr. Moore was arrested on the street. And during that search warrant, the police located two guns in a closet in a bedroom, as well as a quantity of PCP under the kitchen sink. The problem with the gun, if I could address the gun case first, the problem with the evidence below is that there is simply no evidence. This court is, of course, on appeal, required to view the evidence in the light most favorable to the prevailing party below, which was the government. And the evidence in this statute, the 924C, requires that the government must prove that Mr. Moore possessed the gun, and that it was possessed in furtherance of drug trafficking. So what about the fact that $45,000, there was a loaded firearm, what, 2,800 grams of PCP under the kitchen sink, there was a digital scale with cocaine residue on it. And just several days earlier, the half a kilo of cocaine was, he was seen abandoning that in a dumpster

. Why doesn't this all suggest that he was actively involved in the drug trade, and that he was using the firearm in furtherance of his activities? Well, Your Honor, there's two steps to that analysis. The first part, it was he involved in the drug trade, and second, did he possess the gun in furtherance of the drug trade? With respect to the first, if the evidence is admissible in the first place, then it is certainly within the purview of the district court who had acted as the fact finder in a bench trial here, to infer from the amount of the cocaine and the amount of the PCP, that that amount is indicative of possession with intense attribute. That amount of PCP is well beyond anyone's personal use as is the company. But you had a, in this case, it was a five day bench trial, wasn't a jury trial, it was a five day bench trial, and the district court found that the requisite nexus between guns and drugs with ali, there's been a tendency in 924 C to make it a statute where angels dance on the head of a pen, and where we just find, find tuna to death, and that was tried in the Bailey case in Congress promptly reversed it. Isn't there a factual finding here? Isn't this a matter of fact, the nexus, whether the nexus, a sufficiently close nexus exists between the guns and the drugs? There is a factual finding, Your Honor, but first the district court bailed to articulate what that finding was. It was factual, isn't it? It is, but there must be a basis for that. So we're reviewing this under clearly erroneous standard, are we not? We would have to be. I can't think of what, yes, we would have to be. I can't think of it. So why is it, why is the district court finding clearly erroneous? The district court's finding is clearly erroneous, Your Honor, because there has to be evidence for which to support that finding in the first place. And as Judge Kenan noted, certainly the amount of drugs that were found and the inferences that can be used, that the district court can make and find that the defendant possessed those drugs with intended distribute, even though there's no testimony at all that he did distribute. No witnesses, nothing, that ever saw him distribute those drugs in any way, in any place. Second, the district court can find on the basis of- If there was no distribution, what was the 45,000 in cash doing? Do you mean had- In cash? Your Honor, to be clear, if that evidence is admissible, then the district court clearly had a basis on which to conclude that Mr

. Moore possessed the drugs with intended distribute. And further, the guns that were found in his apartment, based on the testimony of the police who did the search and other witnesses who testified as to Mr. Moore's use- I mean, one of the- It's all possession of the apartment. The drug dealers often are robbed, because they're known to be in possession of large amounts of cash. We've had a lot of cases where people come in to the homes of drug dealers and rob them, often, you know, they're people who make an entire profession out of robbing drug dealers. They find out who the drug dealers in the community are and then they rob them. And so, in order to protect themselves, personally, and to protect the amount of cash that they have, they get the firearms. In this case, he was illegally having the firearms, but that's not really an issue here. But with this quantity of drugs, in that much money, it's permissible for the finding- finder of fact, and certainly not clearly erroneous for the finder of fact, to determine, as a matter of fact, that the nexus was found. I mean, the firearm didn't have to be sitting on top of the cash. I mean, on top of the cash, as long as it was reasonable within reasonable proximity. Well, your honor- I mean, we- I do disagree on two points on that. We're rehashing the results of a five-day bench trial with a finding of fact

. Well, well, your honor- Part of an appeal is to review not the factual findings per se, but determine whether there is evidence to support those factual findings. And my argument here today is that the district court could easily have found from the amount of the drugs that they were possessed with intense distributive. It also could have found that the guns were possessed by Mr. Moore, based on their location in an apartment to which he had pretty much sole access based on the testimony. What there is not is anything more than what your honor just posited that drug dealers get robbed and therefore drug dealers, generically, might possess a bond. Well, there's more than just age drug deal. We're talking about a huge amount of cash. I mean, how many people carry $45,000 in that in cash, in that particular medium? Not amount of drugs? But that's the first. I mean, there is other evidence than in fact he carried his, carried drugs, cocaine without carrying the guns. But more than that, the evidence is all, all that evidence is exactly contrary to what this court has held. What your honor wrote in Lomax that possession is not sufficient to establish infurtherance. And what Judge Gregory wrote in another case that possession at the scene of the crime is not sufficient to establish infurtherance. Under the statute, every word must mean something

. So merely having possession is not by per se infurtherance. You know, well. And in fact, when you mentioned the baili case, and the baili cases of, and the aftermath of the baili case, demonstrates that the court in baili, applying the old 924 C, which required use or carry in connection and duration during a drug trafficking crime, held that the gun in the trunk of a car when the defendant was in the car itself was not sufficient. Did your client testify? He did. He did, okay. Well, wouldn't the reason for the guns depend in part upon the district court's assessment of your client's credibility? I assume he denied that the guns had anything to do. What, he applied, frankly, your honor. He denied that the guns were his. Yeah. Generally, did not find him a credible witness on a number of points. The district court said, I don't find this credible. I don't find it your client credible. No, you're right, Your Honor

. And the district court did not find him credible and he denied that the guns were his and the district court didn't find him credible. He didn't find him credible on that. Not only a factual finding, but isn't it in part a credibility finding they were dealing with here? Not, no, Your Honor, it's not because at the bottom, at the first stage, there still has to be evidence of use of possession in furtherance. The district court may not have believed my client when he said it wasn't my gun. But the government still has to introduce evidence that the gun was possessed in furtherance. And what they did was put on a detective to fill a gap in their evidence because they had no evidence of Mr. Moore ever carrying the gun. I don't know why you were gonna tell me because there was so much evidence. I thought, you're gonna tell me who's cumulative. No, Your Honor, I don't. I think there's a complete gap in the evidence when it comes to infurtherance. In this case, possession would have been prohibitive to your client, right? Yeah, and that's count four, for which he was also convicted. Our argument here is that it meant

... Would there be another element on the low max beyond near possession that could be factored in in terms of the connection? It is one of the elements that this court has as mentioned in low max and in other cases. One of the elements. But at the end of the day, whether he's a felony in possession and therefore convicted under count four, which he was, or whether he's a drug trafficker in possession of a gun for in furtherance of drug trafficking for which he gets five additional years, mandatory additional years, is an element of proof. And the lack of proof here, which was attempted to be filled by a police detective testifying as the general habits of drug traffickers, not the habits of Mr. Moore, is I think a very relevant point. And in fact, the district court itself recognized this. But you haven't raised a question on the evidentiary, really, district charge let it in. No, the district court actually, district court did not entirely let it in. It caught your attention to officer of dollars' testimony, beginning at page 705 of the transcript. Can I get back to, can I go back to, Judge Gregory's point because it does seem to me that that's telling because if it had been a rifle or a hunting rifle or something that had some sort of legitimate use, wouldn't that, you would use that in your favor to indicate that there was not a sufficient nexus between the drug trade and the, but when the possession is, I think we all agree, as my colleague pointed out, illegal, is that another factor among many that has to the weight of the case against you and to the soundness of the trial, Judge, is fine. Well, I think the possession by a felon is a relevant factor that the court has considered

. I, as a proud son of Virginia, I would never suggest that these particular guns are also not used for legitimate purposes. And for, may I conclude the thought? Why don't you say that for a moment? Okay, thank you. What's the peers? Would be pleased to hear. May I please the court? There are two issues, as Mr. Erosky indicated, the suppression issue, which I'd like to address, but start with the 924C is that's what he dedicated his argument to. As all three of you have noted, there's quite a lot of evidence in the record that Cory Moore was involved with drug trafficking. And although he himself denied that he possessed the guns, the fact finder, the district court judge found that, and in fact, Mr. Erosky concedes that here. The only question that appears to be before the court on this issue is a bit of angels dancing on ahead of a pin, which is, is there a close linkage, a close enough linkage on a sufficiency challenge to establish that those firearms were possessed in furtherance of a drug trafficking crime. And there's evidence to that effect. Of course, as such, Gregory indicated, the factors come from primarily the Lomax case from 2002. That includes the type of drug trafficking involved. I mean, here, there's no question

. It's factual. And it is factual, so it's a clear error review. This court would have to find that Judge Williams, as the fact finder clearly aired in determining the facts as he did, as it did. You had a handgun, which this court in King indicated, is the type of gun that is not, that is often used in drug trafficking. One of the factors is whether that gun is a legally possessed or not, is Judge Gregory indicated. And as Cory Moore was of which he was convicted, he was a felon and therefore not legally entitled to possess a handgun. The loaded Smith and Wesson was founded in the master bedroom closet, just beside the $45,000 in drug proceeds. The district court, of course, disbelieved. All right, well, we've been over this without all three of us with our earlier questions. Do you have anything further on that issue? No, then I'll turn to the suppression issue. By failing to raise his motion to suppress and tell moments before closing arguments began at trial, Cory Moore waived, defending Cory Moore waived that suppression claim. And there's no good cause to grant relief from waiver as the district court itself ultimately concluded. Now, the primary argument as I understand it on appeal is that by very briefly addressing on the merits that suppression, that oral motion to suppress at trial, that itself was implicit waiver

. That's an argument, of course, the district court ultimately rejected itself when asked on a motion to reconsider. And I guess the question I have is the district court says, three different times, this issue is waived. This issue is waived. And then a third time, when you look when you read through the transcript, it says, again, this issue is waived. It's not fair to the government to bring it up at this particular point in time. Probably maybe the thing should have come before us in the earlier appeal. But there's no, he said it's meritless than any of them, mainly because of Hadarid. But there's nothing in the trial judge's comment that suggests a good cause basis for the waiver. You just don't get that. It's waived here. That's correct, Judge Wilkinson. Not only the district court admittedly doesn't address it in trial itself in the kind of the context of just before closing arguments, just does a very brief discussion. But precisely, when it had the time to consider the issue, the district court, a number of times said this is waived

. And this is distinct from the case on which, according more primarily relies on appeal, the Vasca's case out of the ninth circuit. In that case, the district court was presented with the waiver argument when the motion was made a trial. Consciously said, no, I'm going to rule on this, had briefs before it, had oral argument from both parties. And under that set of facts, the ninth circuit said, that's a way to find that the ruling on the merits was an implicit finding of good cause. Here we don't have that. And we have the district court ultimately concluding that it was waived. But, excepted in your argument, but don't you have a little different situation here, as Judge Wilkinson said repeatedly, it sees waived as waived as waived with me. But then the district court suggests that, I think the reason he gave me said, I have everything I need before me to rule on this. And ruled on it. Why is it not implicitly saying, I am going to rule on the merits and implicitly the reason for the good cause is there's no reason not to, there's no delay, I have all the evidence is already before me, I'm going to rule. Why is there not some of the ninth circuit situation where he did rule the district court, didn't rule? Because here you have the district court explicitly saying there is waiver. And then doing what many district courts do quite frequently is providing alternative bases for reaching its decision. Now, that's the last thing he did. Waver waver waver is like Thomas Jefferson said on changing one's mind, you have a right to be smarter to date and you were yesterday. So, it in an sense the court said, well, you know, the better thing, I think it is waver. It is, but I have everything before me and seemed to be implicitly in fairness, I should rule on this merit and rule against it. I mean, it seems like that's what the district court did. The district court did provide alternative bases to rule on and to deny the suppression motion and it did make some statements that well, when it was before me, I thought I had enough evidence. But in the course of doing that, it says, this is unfair to the government. That's correct, Judge Wilkinson. And the reason it's unfair is that, and it gets, in part to a question of prejudice, if we were to look at the merits and we think the evidence is strong enough that the government should prevail if this court were to get to the merits. But let's get particularly to the question of reasonable suspicion. I think our argument on seizure is quite strong. Well, but before we get there, it serves the interest of clients and it serves the whole interest and orderly procedure for these suppression motions to be brought up prior to trial. Unless there's some real good reason for not doing so. And here the only reason was, and I didn't know everything, but he certainly knew about the stop and the rest

. Waver waver waver is like Thomas Jefferson said on changing one's mind, you have a right to be smarter to date and you were yesterday. So, it in an sense the court said, well, you know, the better thing, I think it is waver. It is, but I have everything before me and seemed to be implicitly in fairness, I should rule on this merit and rule against it. I mean, it seems like that's what the district court did. The district court did provide alternative bases to rule on and to deny the suppression motion and it did make some statements that well, when it was before me, I thought I had enough evidence. But in the course of doing that, it says, this is unfair to the government. That's correct, Judge Wilkinson. And the reason it's unfair is that, and it gets, in part to a question of prejudice, if we were to look at the merits and we think the evidence is strong enough that the government should prevail if this court were to get to the merits. But let's get particularly to the question of reasonable suspicion. I think our argument on seizure is quite strong. Well, but before we get there, it serves the interest of clients and it serves the whole interest and orderly procedure for these suppression motions to be brought up prior to trial. Unless there's some real good reason for not doing so. And here the only reason was, and I didn't know everything, but he certainly knew about the stop and the rest. But if we have suppression motions being brought right before closing argument, it's a very awkward time to hear, to make a suppression hearing. Because to do it in any kind of, anything like a thorough way, you have to really interrupt the trial. You have to keep the jury on hold while you maybe go into a, some sort of hearing room and a hold of hearing on it. And who knows how long that takes and all the rest. But it completely disrupts the rhythm of the trial. It catches the litigants unprepared. And in many cases, the evidence that they want suppressed has already been let in. So you have to sort of walk the whole, you have to walk the whole trial back. Because there may have been references to that evidence being let in. And how much better it is for the litigants to know at the outset of trial, what evidence they're permitted to address and what's going to get admitted and what evidence they're not. That's right. And if you bring it in, right before closing arguments, it's going to be addressed whether bleakly or otherwise, and the litigants would have been proceeding in the dark. This is why the federal rules of criminal procedures say to bring it up beforehand

. But if we have suppression motions being brought right before closing argument, it's a very awkward time to hear, to make a suppression hearing. Because to do it in any kind of, anything like a thorough way, you have to really interrupt the trial. You have to keep the jury on hold while you maybe go into a, some sort of hearing room and a hold of hearing on it. And who knows how long that takes and all the rest. But it completely disrupts the rhythm of the trial. It catches the litigants unprepared. And in many cases, the evidence that they want suppressed has already been let in. So you have to sort of walk the whole, you have to walk the whole trial back. Because there may have been references to that evidence being let in. And how much better it is for the litigants to know at the outset of trial, what evidence they're permitted to address and what's going to get admitted and what evidence they're not. That's right. And if you bring it in, right before closing arguments, it's going to be addressed whether bleakly or otherwise, and the litigants would have been proceeding in the dark. This is why the federal rules of criminal procedures say to bring it up beforehand. And this serves the interests of all parties. This isn't just a government's interest that served. This isn't just an accused interest that served. It's in the interest of everyone to have these things held earlier, rather than later. A lot of times the case is dismissed without the need for a trial if the suppression motion is granted. That's right, Judge Wilkinson. And it's important that they're brought before trial. It benefits both parties. And to get more squarely to the question that you asked, Judge Gregory, when the government was a listening testimony from Officer Hubley on direct examination, on redirect, and very briefly as a rebuttal witness, it did so in part to rebut Cory Moritz's testimony, but really to prove up the substantive charges of the four charges against him. It did not elicit testimony with an eye towards, well, is there going to be a constitutional challenge to whether this is admissible evidence or not? Aren't you worried a little, it seems to me that you're over complicating the issue perhaps, Mr. Pierce, doesn't this come down to whether a trial court can change the basis for its ruling as long as it still has control over its judgment order? I think that is a way to do it and that it's decision. It's really what it comes down to. It does, but it's not uncomplicated by the fact of a rationale changing in between

. And this serves the interests of all parties. This isn't just a government's interest that served. This isn't just an accused interest that served. It's in the interest of everyone to have these things held earlier, rather than later. A lot of times the case is dismissed without the need for a trial if the suppression motion is granted. That's right, Judge Wilkinson. And it's important that they're brought before trial. It benefits both parties. And to get more squarely to the question that you asked, Judge Gregory, when the government was a listening testimony from Officer Hubley on direct examination, on redirect, and very briefly as a rebuttal witness, it did so in part to rebut Cory Moritz's testimony, but really to prove up the substantive charges of the four charges against him. It did not elicit testimony with an eye towards, well, is there going to be a constitutional challenge to whether this is admissible evidence or not? Aren't you worried a little, it seems to me that you're over complicating the issue perhaps, Mr. Pierce, doesn't this come down to whether a trial court can change the basis for its ruling as long as it still has control over its judgment order? I think that is a way to do it and that it's decision. It's really what it comes down to. It does, but it's not uncomplicated by the fact of a rationale changing in between. But yes, a simple way to dispose of this case is to say what was the baseline determination that the district court made and why. It denied the motion to suppress because it found it waived when it was opened. What was the final decision on? For instance, it's mined on its rationale. It adhered to its judgment, but changed its mind on its rationale, and why can't a court do that? Isn't that what this case is about? I think that's the easiest way to dispose of this case. It would be dishonest, however, to note not to note that the district court at an earlier point had a ruling on a different rationale and that other circuits have found that rationale sufficient. That is absolutely right, Judge Keenan, that the easiest way to dispose of this is that the bottom line ruling was a denial based on waiver. There was no finding of good cause as Judge Wilkinson indicated the only real argument that Corey Moore advances other than this implicit finding of good cause is, there was some inconsistencies in testimony. Well, that's precisely what a suppression hearing is for. Is to sus those questions out and not to have to do it at trial. I guess my point is why can't the court change, and I guess maybe I'm missing something, why can't the court change its ruling on good cause? I mean, what precludes a court from changing its reasons for doing something as long as it has control over its judgment order? I'm not aware of any case that would suggest that it doesn't, and that would be a way of resolving this case that we would certainly advocate. Are there any, do there's a court have any questions? I'm happy to address the merits of the suppression issue. Otherwise, I'll just yield the balance of my time. Any further questions? Okay, thank you

. But yes, a simple way to dispose of this case is to say what was the baseline determination that the district court made and why. It denied the motion to suppress because it found it waived when it was opened. What was the final decision on? For instance, it's mined on its rationale. It adhered to its judgment, but changed its mind on its rationale, and why can't a court do that? Isn't that what this case is about? I think that's the easiest way to dispose of this case. It would be dishonest, however, to note not to note that the district court at an earlier point had a ruling on a different rationale and that other circuits have found that rationale sufficient. That is absolutely right, Judge Keenan, that the easiest way to dispose of this is that the bottom line ruling was a denial based on waiver. There was no finding of good cause as Judge Wilkinson indicated the only real argument that Corey Moore advances other than this implicit finding of good cause is, there was some inconsistencies in testimony. Well, that's precisely what a suppression hearing is for. Is to sus those questions out and not to have to do it at trial. I guess my point is why can't the court change, and I guess maybe I'm missing something, why can't the court change its ruling on good cause? I mean, what precludes a court from changing its reasons for doing something as long as it has control over its judgment order? I'm not aware of any case that would suggest that it doesn't, and that would be a way of resolving this case that we would certainly advocate. Are there any, do there's a court have any questions? I'm happy to address the merits of the suppression issue. Otherwise, I'll just yield the balance of my time. Any further questions? Okay, thank you. Mr. Euraski. Mr. Euraski, I've got the same question for you. You probably guessed it. I did your honor. It's a court from changing its rationale, but it still has control over its judgment order. Might be right, might be wrong, but the court has power over its judgment order. What precludes it from changing its rationale? Well, I think in this particular case, your honor. The court had it exactly that. It first had found waiver, and then it found merit that there was no merit. It did address the merits. Well, it bounced around

. Mr. Euraski. Mr. Euraski, I've got the same question for you. You probably guessed it. I did your honor. It's a court from changing its rationale, but it still has control over its judgment order. Might be right, might be wrong, but the court has power over its judgment order. What precludes it from changing its rationale? Well, I think in this particular case, your honor. The court had it exactly that. It first had found waiver, and then it found merit that there was no merit. It did address the merits. Well, it bounced around. It bounced around. There was waiver, then it said there's no merit, and then it went back and said, I'm going to make my final judgment that it is waived. What stops the court from doing that? If the court's wrong as to whether it was waived, that's something you can debate, but doesn't the court have inherent authority over the reasons for its judgment? Well, the judgment at the end of the day was whether or not to convict to define Mr. Moore guilty. The question on the motion itself is what were the basis for the motion and did the court? But if we were to adopt your position, I didn't mean to cut you off there. But if we're to, and this is what I'm trying to think through, if we're to adopt your position, don't we have to say that a court can't change its rationale? Now, in support of its ultimate determination that the motion to suppress us denied, that it cannot change its rationale? Well, I don't think you have to say that, Your Honor. Why aren't we boxing ourselves in on this if we agree with you? Well, I tend to try to avoid boxing the court in, because often it's in my interest to have the court change its mind. But what I think in this particular case, this court was open to a number of different arguments and a number of different rationales. It permitted these matters to be briefed precisely because it was a bench trial. So some of the concerns that Judge Wilkinson raised, not all of them, but some of them were addressed by the fact that this was a bench trial. So the jury wasn't going to be inconvenienced. The judge was, you know, is in a place to consider what evidence, you know, would be not considered in his ultimate judgment. And in the efficiency of the, and he may very well have viewed it as efficient to resolve this issue

. It bounced around. There was waiver, then it said there's no merit, and then it went back and said, I'm going to make my final judgment that it is waived. What stops the court from doing that? If the court's wrong as to whether it was waived, that's something you can debate, but doesn't the court have inherent authority over the reasons for its judgment? Well, the judgment at the end of the day was whether or not to convict to define Mr. Moore guilty. The question on the motion itself is what were the basis for the motion and did the court? But if we were to adopt your position, I didn't mean to cut you off there. But if we're to, and this is what I'm trying to think through, if we're to adopt your position, don't we have to say that a court can't change its rationale? Now, in support of its ultimate determination that the motion to suppress us denied, that it cannot change its rationale? Well, I don't think you have to say that, Your Honor. Why aren't we boxing ourselves in on this if we agree with you? Well, I tend to try to avoid boxing the court in, because often it's in my interest to have the court change its mind. But what I think in this particular case, this court was open to a number of different arguments and a number of different rationales. It permitted these matters to be briefed precisely because it was a bench trial. So some of the concerns that Judge Wilkinson raised, not all of them, but some of them were addressed by the fact that this was a bench trial. So the jury wasn't going to be inconvenienced. The judge was, you know, is in a place to consider what evidence, you know, would be not considered in his ultimate judgment. And in the efficiency of the, and he may very well have viewed it as efficient to resolve this issue. Now, I think, frankly, this is why, and Your Honor may have been correct, that it didn't, that it should have been raised earlier, but I think in the confusion of the initial suppression motion, where they won, in the sense that it was all, everything was thrown out, and then, then an interlocatory appeal. And it returned. Why couldn't you raise it, and give me you tacked the warrant in the first appeal? Couldn't you raise this then? I mean, my question is, couldn't it have been raised twice? First of all, prior to your attack on the, I mean, together with your attack on us, on the sufficiency of the warrant, which we resolved ultimately on the Leon ground. And then secondly, prior to the bench trial in this case, I mean, this really is the 11th hour, which is why I think Judge Williams, in the end, after saying waiver twice, then addressing the merits, comes back finally and says it's waited. But he also said, you're on it, that he had all the information he needed to rule on the merits, that there was, that he had heard testimony from both. And, you know, but even if it's, even if it's an alternative ground, the discussion of the merits didn't rescind his view that it was a waiver. And a lot of times, you know, courts, in order to protect themselves against appeals, either to this court or to the Supreme Court, will provide alternative ground. So, yes, I quite agree with Judge Keenan, that court is ultimately in control of its judgment order. And it was perfectly free, after, as she puts it, bouncing around to come back to the point bang at the end, it says, wave, and that's the basis. But even when it addressed the question of whether there was a stop and the whole idea of submission to an order to stop, there wasn't any view that I got from reading the transcript that the district court had, number one, revote its earlier feeling that the whole issue was waived, and number two, that it hadn't made any kind of implicit finding of good cause. So, it comes back to waiver, but even the most charitable reading from your standpoint would still leave, yes, as an alternate, as a judgment with alternate basis. It is a judgment, I believe, with alternate basis, and on four cleaned the waiver is one of those bases, and we recognize that all the way through. But you're not saying you can't, just because it addressed the merits, you're not saying you can't come back to waiver, which of course it did

. Now, I think, frankly, this is why, and Your Honor may have been correct, that it didn't, that it should have been raised earlier, but I think in the confusion of the initial suppression motion, where they won, in the sense that it was all, everything was thrown out, and then, then an interlocatory appeal. And it returned. Why couldn't you raise it, and give me you tacked the warrant in the first appeal? Couldn't you raise this then? I mean, my question is, couldn't it have been raised twice? First of all, prior to your attack on the, I mean, together with your attack on us, on the sufficiency of the warrant, which we resolved ultimately on the Leon ground. And then secondly, prior to the bench trial in this case, I mean, this really is the 11th hour, which is why I think Judge Williams, in the end, after saying waiver twice, then addressing the merits, comes back finally and says it's waited. But he also said, you're on it, that he had all the information he needed to rule on the merits, that there was, that he had heard testimony from both. And, you know, but even if it's, even if it's an alternative ground, the discussion of the merits didn't rescind his view that it was a waiver. And a lot of times, you know, courts, in order to protect themselves against appeals, either to this court or to the Supreme Court, will provide alternative ground. So, yes, I quite agree with Judge Keenan, that court is ultimately in control of its judgment order. And it was perfectly free, after, as she puts it, bouncing around to come back to the point bang at the end, it says, wave, and that's the basis. But even when it addressed the question of whether there was a stop and the whole idea of submission to an order to stop, there wasn't any view that I got from reading the transcript that the district court had, number one, revote its earlier feeling that the whole issue was waived, and number two, that it hadn't made any kind of implicit finding of good cause. So, it comes back to waiver, but even the most charitable reading from your standpoint would still leave, yes, as an alternate, as a judgment with alternate basis. It is a judgment, I believe, with alternate basis, and on four cleaned the waiver is one of those bases, and we recognize that all the way through. But you're not saying you can't, just because it addressed the merits, you're not saying you can't come back to waiver, which of course it did. I don't say that, you're on, right? The court found, the court clearly found the record is unambiguous on that, that there was first the waiver, and then there was the merits. It was kind of a drift of your comments, which was that we had to consider it on the merits, because the district court considered it on the merits, notwithstanding that final and fatigued statement of that waiver. I believe the issue was properly teed up for the district court, the district court did rule on the merits, and in the issues of efficiency, I think this court can also address that. The good cause, which was presented to the court below, is in fact that the testimony of the police officer was inconsistent with his own written reports, the only information that the defense council had at the time of the original suppression hearing, and the defense council at that time went forward, and successfully, at least at first, on the basis of the inadequacy, allegedly, actually, of the warrant. Is there anything further, sir? Your Honor, just one last bit, which I wanted to raise at the end of my last, my opening argument, is again, on the 924 C case, that your Honor mentioned that the evidence came in from the officer of Dal, and I just wanted to call the court's attention to pages 705-707 of the record, in which the government attempts to elicit from the expert witness facts that relate to the information and why a person, a drug trafficker, generically, would have a gun. They ask several questions, the defense objects, the court over rules, and says, this is background, until they get to that ultimate question, why did Mr. Moore have this gun? And at that point, the court sustains the objection, saying he can't testify to that. So there is, in fact, and a whole in the evidence, in the government's evidence, that makes the finding itself invalid. No, I think we understand you on that point. Thank you, Your Honor. I also want to say to you, Mr. Yorofsky, I see that you're court appointed, we really, you certainly diligently defended your client, we appreciate that, and we depend on the good efforts of you and many other able attorneys to enhance the quality of our own task. So thank you so much

. I don't say that, you're on, right? The court found, the court clearly found the record is unambiguous on that, that there was first the waiver, and then there was the merits. It was kind of a drift of your comments, which was that we had to consider it on the merits, because the district court considered it on the merits, notwithstanding that final and fatigued statement of that waiver. I believe the issue was properly teed up for the district court, the district court did rule on the merits, and in the issues of efficiency, I think this court can also address that. The good cause, which was presented to the court below, is in fact that the testimony of the police officer was inconsistent with his own written reports, the only information that the defense council had at the time of the original suppression hearing, and the defense council at that time went forward, and successfully, at least at first, on the basis of the inadequacy, allegedly, actually, of the warrant. Is there anything further, sir? Your Honor, just one last bit, which I wanted to raise at the end of my last, my opening argument, is again, on the 924 C case, that your Honor mentioned that the evidence came in from the officer of Dal, and I just wanted to call the court's attention to pages 705-707 of the record, in which the government attempts to elicit from the expert witness facts that relate to the information and why a person, a drug trafficker, generically, would have a gun. They ask several questions, the defense objects, the court over rules, and says, this is background, until they get to that ultimate question, why did Mr. Moore have this gun? And at that point, the court sustains the objection, saying he can't testify to that. So there is, in fact, and a whole in the evidence, in the government's evidence, that makes the finding itself invalid. No, I think we understand you on that point. Thank you, Your Honor. I also want to say to you, Mr. Yorofsky, I see that you're court appointed, we really, you certainly diligently defended your client, we appreciate that, and we depend on the good efforts of you and many other able attorneys to enhance the quality of our own task. So thank you so much. Thank you. We'd like to come down and say hi, and then we'll take a brief recess.

May I please the court? I appear today on behalf of Corey Moore, who was convicted in the District Court of Maryland for various charges related to drug trafficking and possession of a gun in furtherance of drug trafficking. We wish to present two arguments, one of which we believe requires complete reversal of these convictions, and the other would require a resendencing. With respect to the first, all of the evidence that was introduced below originates from an unlawful stop by the police in Tacoma Park, Maryland. Of Mr. Moore, while he was walking down the street carrying a juice bottle. With respect to the second, it relates to the guns that were found as pursuant to the search warrant, and as this panel has previously heard this case, a search warrant that was conducted two days after Mr. Moore was arrested on the street. And during that search warrant, the police located two guns in a closet in a bedroom, as well as a quantity of PCP under the kitchen sink. The problem with the gun, if I could address the gun case first, the problem with the evidence below is that there is simply no evidence. This court is, of course, on appeal, required to view the evidence in the light most favorable to the prevailing party below, which was the government. And the evidence in this statute, the 924C, requires that the government must prove that Mr. Moore possessed the gun, and that it was possessed in furtherance of drug trafficking. So what about the fact that $45,000, there was a loaded firearm, what, 2,800 grams of PCP under the kitchen sink, there was a digital scale with cocaine residue on it. And just several days earlier, the half a kilo of cocaine was, he was seen abandoning that in a dumpster. Why doesn't this all suggest that he was actively involved in the drug trade, and that he was using the firearm in furtherance of his activities? Well, Your Honor, there's two steps to that analysis. The first part, it was he involved in the drug trade, and second, did he possess the gun in furtherance of the drug trade? With respect to the first, if the evidence is admissible in the first place, then it is certainly within the purview of the district court who had acted as the fact finder in a bench trial here, to infer from the amount of the cocaine and the amount of the PCP, that that amount is indicative of possession with intense attribute. That amount of PCP is well beyond anyone's personal use as is the company. But you had a, in this case, it was a five day bench trial, wasn't a jury trial, it was a five day bench trial, and the district court found that the requisite nexus between guns and drugs with ali, there's been a tendency in 924 C to make it a statute where angels dance on the head of a pen, and where we just find, find tuna to death, and that was tried in the Bailey case in Congress promptly reversed it. Isn't there a factual finding here? Isn't this a matter of fact, the nexus, whether the nexus, a sufficiently close nexus exists between the guns and the drugs? There is a factual finding, Your Honor, but first the district court bailed to articulate what that finding was. It was factual, isn't it? It is, but there must be a basis for that. So we're reviewing this under clearly erroneous standard, are we not? We would have to be. I can't think of what, yes, we would have to be. I can't think of it. So why is it, why is the district court finding clearly erroneous? The district court's finding is clearly erroneous, Your Honor, because there has to be evidence for which to support that finding in the first place. And as Judge Kenan noted, certainly the amount of drugs that were found and the inferences that can be used, that the district court can make and find that the defendant possessed those drugs with intended distribute, even though there's no testimony at all that he did distribute. No witnesses, nothing, that ever saw him distribute those drugs in any way, in any place. Second, the district court can find on the basis of- If there was no distribution, what was the 45,000 in cash doing? Do you mean had- In cash? Your Honor, to be clear, if that evidence is admissible, then the district court clearly had a basis on which to conclude that Mr. Moore possessed the drugs with intended distribute. And further, the guns that were found in his apartment, based on the testimony of the police who did the search and other witnesses who testified as to Mr. Moore's use- I mean, one of the- It's all possession of the apartment. The drug dealers often are robbed, because they're known to be in possession of large amounts of cash. We've had a lot of cases where people come in to the homes of drug dealers and rob them, often, you know, they're people who make an entire profession out of robbing drug dealers. They find out who the drug dealers in the community are and then they rob them. And so, in order to protect themselves, personally, and to protect the amount of cash that they have, they get the firearms. In this case, he was illegally having the firearms, but that's not really an issue here. But with this quantity of drugs, in that much money, it's permissible for the finding- finder of fact, and certainly not clearly erroneous for the finder of fact, to determine, as a matter of fact, that the nexus was found. I mean, the firearm didn't have to be sitting on top of the cash. I mean, on top of the cash, as long as it was reasonable within reasonable proximity. Well, your honor- I mean, we- I do disagree on two points on that. We're rehashing the results of a five-day bench trial with a finding of fact. Well, well, your honor- Part of an appeal is to review not the factual findings per se, but determine whether there is evidence to support those factual findings. And my argument here today is that the district court could easily have found from the amount of the drugs that they were possessed with intense distributive. It also could have found that the guns were possessed by Mr. Moore, based on their location in an apartment to which he had pretty much sole access based on the testimony. What there is not is anything more than what your honor just posited that drug dealers get robbed and therefore drug dealers, generically, might possess a bond. Well, there's more than just age drug deal. We're talking about a huge amount of cash. I mean, how many people carry $45,000 in that in cash, in that particular medium? Not amount of drugs? But that's the first. I mean, there is other evidence than in fact he carried his, carried drugs, cocaine without carrying the guns. But more than that, the evidence is all, all that evidence is exactly contrary to what this court has held. What your honor wrote in Lomax that possession is not sufficient to establish infurtherance. And what Judge Gregory wrote in another case that possession at the scene of the crime is not sufficient to establish infurtherance. Under the statute, every word must mean something. So merely having possession is not by per se infurtherance. You know, well. And in fact, when you mentioned the baili case, and the baili cases of, and the aftermath of the baili case, demonstrates that the court in baili, applying the old 924 C, which required use or carry in connection and duration during a drug trafficking crime, held that the gun in the trunk of a car when the defendant was in the car itself was not sufficient. Did your client testify? He did. He did, okay. Well, wouldn't the reason for the guns depend in part upon the district court's assessment of your client's credibility? I assume he denied that the guns had anything to do. What, he applied, frankly, your honor. He denied that the guns were his. Yeah. Generally, did not find him a credible witness on a number of points. The district court said, I don't find this credible. I don't find it your client credible. No, you're right, Your Honor. And the district court did not find him credible and he denied that the guns were his and the district court didn't find him credible. He didn't find him credible on that. Not only a factual finding, but isn't it in part a credibility finding they were dealing with here? Not, no, Your Honor, it's not because at the bottom, at the first stage, there still has to be evidence of use of possession in furtherance. The district court may not have believed my client when he said it wasn't my gun. But the government still has to introduce evidence that the gun was possessed in furtherance. And what they did was put on a detective to fill a gap in their evidence because they had no evidence of Mr. Moore ever carrying the gun. I don't know why you were gonna tell me because there was so much evidence. I thought, you're gonna tell me who's cumulative. No, Your Honor, I don't. I think there's a complete gap in the evidence when it comes to infurtherance. In this case, possession would have been prohibitive to your client, right? Yeah, and that's count four, for which he was also convicted. Our argument here is that it meant... Would there be another element on the low max beyond near possession that could be factored in in terms of the connection? It is one of the elements that this court has as mentioned in low max and in other cases. One of the elements. But at the end of the day, whether he's a felony in possession and therefore convicted under count four, which he was, or whether he's a drug trafficker in possession of a gun for in furtherance of drug trafficking for which he gets five additional years, mandatory additional years, is an element of proof. And the lack of proof here, which was attempted to be filled by a police detective testifying as the general habits of drug traffickers, not the habits of Mr. Moore, is I think a very relevant point. And in fact, the district court itself recognized this. But you haven't raised a question on the evidentiary, really, district charge let it in. No, the district court actually, district court did not entirely let it in. It caught your attention to officer of dollars' testimony, beginning at page 705 of the transcript. Can I get back to, can I go back to, Judge Gregory's point because it does seem to me that that's telling because if it had been a rifle or a hunting rifle or something that had some sort of legitimate use, wouldn't that, you would use that in your favor to indicate that there was not a sufficient nexus between the drug trade and the, but when the possession is, I think we all agree, as my colleague pointed out, illegal, is that another factor among many that has to the weight of the case against you and to the soundness of the trial, Judge, is fine. Well, I think the possession by a felon is a relevant factor that the court has considered. I, as a proud son of Virginia, I would never suggest that these particular guns are also not used for legitimate purposes. And for, may I conclude the thought? Why don't you say that for a moment? Okay, thank you. What's the peers? Would be pleased to hear. May I please the court? There are two issues, as Mr. Erosky indicated, the suppression issue, which I'd like to address, but start with the 924C is that's what he dedicated his argument to. As all three of you have noted, there's quite a lot of evidence in the record that Cory Moore was involved with drug trafficking. And although he himself denied that he possessed the guns, the fact finder, the district court judge found that, and in fact, Mr. Erosky concedes that here. The only question that appears to be before the court on this issue is a bit of angels dancing on ahead of a pin, which is, is there a close linkage, a close enough linkage on a sufficiency challenge to establish that those firearms were possessed in furtherance of a drug trafficking crime. And there's evidence to that effect. Of course, as such, Gregory indicated, the factors come from primarily the Lomax case from 2002. That includes the type of drug trafficking involved. I mean, here, there's no question. It's factual. And it is factual, so it's a clear error review. This court would have to find that Judge Williams, as the fact finder clearly aired in determining the facts as he did, as it did. You had a handgun, which this court in King indicated, is the type of gun that is not, that is often used in drug trafficking. One of the factors is whether that gun is a legally possessed or not, is Judge Gregory indicated. And as Cory Moore was of which he was convicted, he was a felon and therefore not legally entitled to possess a handgun. The loaded Smith and Wesson was founded in the master bedroom closet, just beside the $45,000 in drug proceeds. The district court, of course, disbelieved. All right, well, we've been over this without all three of us with our earlier questions. Do you have anything further on that issue? No, then I'll turn to the suppression issue. By failing to raise his motion to suppress and tell moments before closing arguments began at trial, Cory Moore waived, defending Cory Moore waived that suppression claim. And there's no good cause to grant relief from waiver as the district court itself ultimately concluded. Now, the primary argument as I understand it on appeal is that by very briefly addressing on the merits that suppression, that oral motion to suppress at trial, that itself was implicit waiver. That's an argument, of course, the district court ultimately rejected itself when asked on a motion to reconsider. And I guess the question I have is the district court says, three different times, this issue is waived. This issue is waived. And then a third time, when you look when you read through the transcript, it says, again, this issue is waived. It's not fair to the government to bring it up at this particular point in time. Probably maybe the thing should have come before us in the earlier appeal. But there's no, he said it's meritless than any of them, mainly because of Hadarid. But there's nothing in the trial judge's comment that suggests a good cause basis for the waiver. You just don't get that. It's waived here. That's correct, Judge Wilkinson. Not only the district court admittedly doesn't address it in trial itself in the kind of the context of just before closing arguments, just does a very brief discussion. But precisely, when it had the time to consider the issue, the district court, a number of times said this is waived. And this is distinct from the case on which, according more primarily relies on appeal, the Vasca's case out of the ninth circuit. In that case, the district court was presented with the waiver argument when the motion was made a trial. Consciously said, no, I'm going to rule on this, had briefs before it, had oral argument from both parties. And under that set of facts, the ninth circuit said, that's a way to find that the ruling on the merits was an implicit finding of good cause. Here we don't have that. And we have the district court ultimately concluding that it was waived. But, excepted in your argument, but don't you have a little different situation here, as Judge Wilkinson said repeatedly, it sees waived as waived as waived with me. But then the district court suggests that, I think the reason he gave me said, I have everything I need before me to rule on this. And ruled on it. Why is it not implicitly saying, I am going to rule on the merits and implicitly the reason for the good cause is there's no reason not to, there's no delay, I have all the evidence is already before me, I'm going to rule. Why is there not some of the ninth circuit situation where he did rule the district court, didn't rule? Because here you have the district court explicitly saying there is waiver. And then doing what many district courts do quite frequently is providing alternative bases for reaching its decision. Now, that's the last thing he did. Waver waver waver is like Thomas Jefferson said on changing one's mind, you have a right to be smarter to date and you were yesterday. So, it in an sense the court said, well, you know, the better thing, I think it is waver. It is, but I have everything before me and seemed to be implicitly in fairness, I should rule on this merit and rule against it. I mean, it seems like that's what the district court did. The district court did provide alternative bases to rule on and to deny the suppression motion and it did make some statements that well, when it was before me, I thought I had enough evidence. But in the course of doing that, it says, this is unfair to the government. That's correct, Judge Wilkinson. And the reason it's unfair is that, and it gets, in part to a question of prejudice, if we were to look at the merits and we think the evidence is strong enough that the government should prevail if this court were to get to the merits. But let's get particularly to the question of reasonable suspicion. I think our argument on seizure is quite strong. Well, but before we get there, it serves the interest of clients and it serves the whole interest and orderly procedure for these suppression motions to be brought up prior to trial. Unless there's some real good reason for not doing so. And here the only reason was, and I didn't know everything, but he certainly knew about the stop and the rest. But if we have suppression motions being brought right before closing argument, it's a very awkward time to hear, to make a suppression hearing. Because to do it in any kind of, anything like a thorough way, you have to really interrupt the trial. You have to keep the jury on hold while you maybe go into a, some sort of hearing room and a hold of hearing on it. And who knows how long that takes and all the rest. But it completely disrupts the rhythm of the trial. It catches the litigants unprepared. And in many cases, the evidence that they want suppressed has already been let in. So you have to sort of walk the whole, you have to walk the whole trial back. Because there may have been references to that evidence being let in. And how much better it is for the litigants to know at the outset of trial, what evidence they're permitted to address and what's going to get admitted and what evidence they're not. That's right. And if you bring it in, right before closing arguments, it's going to be addressed whether bleakly or otherwise, and the litigants would have been proceeding in the dark. This is why the federal rules of criminal procedures say to bring it up beforehand. And this serves the interests of all parties. This isn't just a government's interest that served. This isn't just an accused interest that served. It's in the interest of everyone to have these things held earlier, rather than later. A lot of times the case is dismissed without the need for a trial if the suppression motion is granted. That's right, Judge Wilkinson. And it's important that they're brought before trial. It benefits both parties. And to get more squarely to the question that you asked, Judge Gregory, when the government was a listening testimony from Officer Hubley on direct examination, on redirect, and very briefly as a rebuttal witness, it did so in part to rebut Cory Moritz's testimony, but really to prove up the substantive charges of the four charges against him. It did not elicit testimony with an eye towards, well, is there going to be a constitutional challenge to whether this is admissible evidence or not? Aren't you worried a little, it seems to me that you're over complicating the issue perhaps, Mr. Pierce, doesn't this come down to whether a trial court can change the basis for its ruling as long as it still has control over its judgment order? I think that is a way to do it and that it's decision. It's really what it comes down to. It does, but it's not uncomplicated by the fact of a rationale changing in between. But yes, a simple way to dispose of this case is to say what was the baseline determination that the district court made and why. It denied the motion to suppress because it found it waived when it was opened. What was the final decision on? For instance, it's mined on its rationale. It adhered to its judgment, but changed its mind on its rationale, and why can't a court do that? Isn't that what this case is about? I think that's the easiest way to dispose of this case. It would be dishonest, however, to note not to note that the district court at an earlier point had a ruling on a different rationale and that other circuits have found that rationale sufficient. That is absolutely right, Judge Keenan, that the easiest way to dispose of this is that the bottom line ruling was a denial based on waiver. There was no finding of good cause as Judge Wilkinson indicated the only real argument that Corey Moore advances other than this implicit finding of good cause is, there was some inconsistencies in testimony. Well, that's precisely what a suppression hearing is for. Is to sus those questions out and not to have to do it at trial. I guess my point is why can't the court change, and I guess maybe I'm missing something, why can't the court change its ruling on good cause? I mean, what precludes a court from changing its reasons for doing something as long as it has control over its judgment order? I'm not aware of any case that would suggest that it doesn't, and that would be a way of resolving this case that we would certainly advocate. Are there any, do there's a court have any questions? I'm happy to address the merits of the suppression issue. Otherwise, I'll just yield the balance of my time. Any further questions? Okay, thank you. Mr. Euraski. Mr. Euraski, I've got the same question for you. You probably guessed it. I did your honor. It's a court from changing its rationale, but it still has control over its judgment order. Might be right, might be wrong, but the court has power over its judgment order. What precludes it from changing its rationale? Well, I think in this particular case, your honor. The court had it exactly that. It first had found waiver, and then it found merit that there was no merit. It did address the merits. Well, it bounced around. It bounced around. There was waiver, then it said there's no merit, and then it went back and said, I'm going to make my final judgment that it is waived. What stops the court from doing that? If the court's wrong as to whether it was waived, that's something you can debate, but doesn't the court have inherent authority over the reasons for its judgment? Well, the judgment at the end of the day was whether or not to convict to define Mr. Moore guilty. The question on the motion itself is what were the basis for the motion and did the court? But if we were to adopt your position, I didn't mean to cut you off there. But if we're to, and this is what I'm trying to think through, if we're to adopt your position, don't we have to say that a court can't change its rationale? Now, in support of its ultimate determination that the motion to suppress us denied, that it cannot change its rationale? Well, I don't think you have to say that, Your Honor. Why aren't we boxing ourselves in on this if we agree with you? Well, I tend to try to avoid boxing the court in, because often it's in my interest to have the court change its mind. But what I think in this particular case, this court was open to a number of different arguments and a number of different rationales. It permitted these matters to be briefed precisely because it was a bench trial. So some of the concerns that Judge Wilkinson raised, not all of them, but some of them were addressed by the fact that this was a bench trial. So the jury wasn't going to be inconvenienced. The judge was, you know, is in a place to consider what evidence, you know, would be not considered in his ultimate judgment. And in the efficiency of the, and he may very well have viewed it as efficient to resolve this issue. Now, I think, frankly, this is why, and Your Honor may have been correct, that it didn't, that it should have been raised earlier, but I think in the confusion of the initial suppression motion, where they won, in the sense that it was all, everything was thrown out, and then, then an interlocatory appeal. And it returned. Why couldn't you raise it, and give me you tacked the warrant in the first appeal? Couldn't you raise this then? I mean, my question is, couldn't it have been raised twice? First of all, prior to your attack on the, I mean, together with your attack on us, on the sufficiency of the warrant, which we resolved ultimately on the Leon ground. And then secondly, prior to the bench trial in this case, I mean, this really is the 11th hour, which is why I think Judge Williams, in the end, after saying waiver twice, then addressing the merits, comes back finally and says it's waited. But he also said, you're on it, that he had all the information he needed to rule on the merits, that there was, that he had heard testimony from both. And, you know, but even if it's, even if it's an alternative ground, the discussion of the merits didn't rescind his view that it was a waiver. And a lot of times, you know, courts, in order to protect themselves against appeals, either to this court or to the Supreme Court, will provide alternative ground. So, yes, I quite agree with Judge Keenan, that court is ultimately in control of its judgment order. And it was perfectly free, after, as she puts it, bouncing around to come back to the point bang at the end, it says, wave, and that's the basis. But even when it addressed the question of whether there was a stop and the whole idea of submission to an order to stop, there wasn't any view that I got from reading the transcript that the district court had, number one, revote its earlier feeling that the whole issue was waived, and number two, that it hadn't made any kind of implicit finding of good cause. So, it comes back to waiver, but even the most charitable reading from your standpoint would still leave, yes, as an alternate, as a judgment with alternate basis. It is a judgment, I believe, with alternate basis, and on four cleaned the waiver is one of those bases, and we recognize that all the way through. But you're not saying you can't, just because it addressed the merits, you're not saying you can't come back to waiver, which of course it did. I don't say that, you're on, right? The court found, the court clearly found the record is unambiguous on that, that there was first the waiver, and then there was the merits. It was kind of a drift of your comments, which was that we had to consider it on the merits, because the district court considered it on the merits, notwithstanding that final and fatigued statement of that waiver. I believe the issue was properly teed up for the district court, the district court did rule on the merits, and in the issues of efficiency, I think this court can also address that. The good cause, which was presented to the court below, is in fact that the testimony of the police officer was inconsistent with his own written reports, the only information that the defense council had at the time of the original suppression hearing, and the defense council at that time went forward, and successfully, at least at first, on the basis of the inadequacy, allegedly, actually, of the warrant. Is there anything further, sir? Your Honor, just one last bit, which I wanted to raise at the end of my last, my opening argument, is again, on the 924 C case, that your Honor mentioned that the evidence came in from the officer of Dal, and I just wanted to call the court's attention to pages 705-707 of the record, in which the government attempts to elicit from the expert witness facts that relate to the information and why a person, a drug trafficker, generically, would have a gun. They ask several questions, the defense objects, the court over rules, and says, this is background, until they get to that ultimate question, why did Mr. Moore have this gun? And at that point, the court sustains the objection, saying he can't testify to that. So there is, in fact, and a whole in the evidence, in the government's evidence, that makes the finding itself invalid. No, I think we understand you on that point. Thank you, Your Honor. I also want to say to you, Mr. Yorofsky, I see that you're court appointed, we really, you certainly diligently defended your client, we appreciate that, and we depend on the good efforts of you and many other able attorneys to enhance the quality of our own task. So thank you so much. Thank you. We'd like to come down and say hi, and then we'll take a brief recess