Ready to go? Yep. Good morning, dear honors. I'm Daniel Kaplan. I represent the Appellant Arlenmore, and I'm going to watch the clock and attempt to save about three minutes for my rebuttal. In Lewis versus Lewis, this court stated that the third step of a batson challenge is the real meat of the batson challenge. This is a case where the real meat of the batson analysis is simply missing. As the court is aware, there's a three-step process of a batson analysis. The first is a cream-of-face-ish showing of discrimination. That's not disputed in this case. Step two, the prosecutor has to articulate a raised neutral justification for the challenge strike. Now, at that step, the justification doesn't even have to be plausible. It can be, I noticed, Jörr 34 had two legs. I believe bipeds favor defendants. That would pass
. Step two. It's only at step three. The real meat of a batson challenge that the district court is supposed to undertake what batson itself identified as a sensitive inquiry into all available circumstantial and direct evidence of discrimination. When they judge Campbell have done, when the prosecutor and the prosecutor has decided why to strike this guy, he says, because my agent saw him look like he was sleeping. What should Judge Campbell have done? The least, I believe Judge Campbell should have done, would be to say, I would like to address the case agent, the person, the only person here who allegedly witnessed this jury's sleeping. I would like to hear him tell me what he thinks he saw, make an assessment of his credibility by talking to him directly, decide whether the facts he's recounting even sound like somebody's sleeping or maybe somebody just resting their eyes. Perhaps give counsel a chance to examine or at least ask questions and have the agent address them. That would be the least he could do, because that would at least allow for a relevant credibility determination. On this record, it's only the prosecutor recounting second hand something she said she heard from the case agent. But there's much more Judge Campbell could have done. In Lewis vs. Lewis, this Court describes the fact that there is a toolbox of tools available to a district court. It doesn't have to use every one of the tools, but it has to use enough tools to make a meaningful step three determination
. What would another tool be? Another tool would be to look at the actual transcript. There is a point in the record of this trial. What would the transcript show about whether someone was sleeping or not? Well, let's report or write down snoring or something. I mean, what's it going to be about the transcript show? Which, by the way, he or she didn't. A transcript could show that, sure, 34, when asked to describe the basic biographical information, clearly and lucidly describe that information, there was no record that anybody knows. He can't stipulate he was awake at that point, but I mean, how would that bear on whether he had been dosing off some of the time? Well, it could show other things pertinent to a bass and step three. For example, we recounted in the brief that there is comparative analysis to be done in this case. There was a strike that was later withdrawn of juror 19. The justification was juror 19 was an engineer. Maybe he demands a lot of technical high level of proof. Maybe he won't be impressed with a small number of witnesses. The record already on in the train already recorded by that point would show that there were two other jurors who, one of them, was chemistry technician at the nuclear plant. Another one was an intensiveist, intensive care doctor, member of the American College of thoracic medicine or something of that effect
. Those type of comparisons could also be made. And that would also be relevant to a bass and step three determination. In a bass and challenge, we're reviewing the actions of the district court based on clear error, right? Well, normally, yes, but in a case like this, where the court simply fails to make a meaningful step three determination, that's a legal error and that's to know. I know you let your position at the avail that make an assessment, but the district court did in fact indicate the basis on which he allowed the strike, right? Yes, but the basis was a step two basis. That's a raised neutral justification. Right. And then did he not indicate that based on that, he was going to allow it. Yes. And so does that comply with step three then? No, because he's stopping at step two when he says, I'm going to deny the strike, I'm going to deny the challenge because that's a raised neutral justification. What he's saying is the prosecution has satisfied step two. I think that's good enough. He never proceeded to say that. And your view is that he does have to do, he has to do the comparative analysis
. And I guess what I'm struggling with here, Counsel, is of course, as the case is clear. When you're talking about the demeanor of someone, we have a cold record. We can't see what they look like. We can't see what they're sleeping. We can't see anything. All we can see is what was written down, or occasionally as my colleague mentioned, if the court reporter says someone snoring or there's laughter, what are we get that? But the fact is we can only review what is seen here. And I'm struggling with why you seem to be requiring more in step three than what the district court did here. Help me with that. Because there are some December of cases that we discussed in the briefs that are similar in the sense of a cold record, as you say. And in those cases, there's not one single one of those cases up to the Supreme Court in Snyder versus Louisiana that would say we're going to simply defer to a finding that the judge never made. In Snyder, the prosecutor said, I struck that juror because that juror struck me as nervous. The Supreme Court said, there's no finding on the record that the judge found the prosecutor's characterization about that juror looking nervous to be credible. But that's different
. Because in this case, the judge did find the representation that the guy was sleeping to be credible. He did not. All he said was it's race neutral, which again is step two. Well, let me double check my facts here. Did he not say, I take as a good faith representation from the prosecution team that they saw him putting his head on the bench and appearing not to pay attention? Exactly. Well, he's accepting that is true. No, I would dispute that. He's saying I'm going to rely upon what I assume to be the good faith of the prosecution team. But he can't make a credibility finding about the assertion that that juror was sleeping without talking to the only person in the courtroom who said he saw the juror sleeping. You would have us interpret I take as a good faith representation from the prosecution team that they saw him put his head down on the bench and appearing not to pay attention. You would take that as meaning he doesn't believe what they're telling him. I take that as he's taking it on faith. He's relying upon his view of their good faith
. Well, he's also in the courtroom. He didn't come back and say, I don't know what you're talking about the guy here to be hypercafinated to me or I never took my eyes off the guy and I never saw him dozing off or eating saying anything like that. What he said is I will take it as basically I'll take it as true. Yes, but he's not titled to do that. No, absolutely not. I suppose we disagree with you about that. What's your, what else have you got? We've got a Fourth Amendment issue. Can we talk about that? Sure. The virtually all the evidence that was used against Mr. Moore, F. T. Shryell, was derived from a warrantless, forcible entry into his home. And the justification, the only justification that the government has ever profited for that warrantless entry into the home in spite of the Fourth Amendment's per se general rule against a warrantless entry into the home is that consent was obtained from the co-resistant
. Well, no, we have to deal with the Randolph case. Exactly. And doesn't Randolph require more than passive in action? He locked himself in, wouldn't answer the door. People yelled, let us in, let us in, but he didn't say a word. And the Randolph case seemed to be a very narrow exception. What makes this case different? Well, I don't think it's different. I think this case is really on all fours with Randolph. And it is a narrow rule, but this case fits within the rule because here we have a situation similar to the eighth circuit case of the United States versus Williams, which involved the hotel room, where the expression of non-consent is not verbal, but it's at least as clear as a verbal expression and arguably even more clear. Counsel, I, with respect, I, I guess I don't read Randolph like you do. I, my understanding is that the cohabitant has to expressly refuse entry. Here you have the girlfriend saying after a considerable discussion, 90 minutes passes, she signs a document permitting this. And your client says nothing, he doesn't come out and say anything, I don't object to anything. How does that fit within Randolph? Well, he's in the house and it's, it's clear on the record that from 2 p
.m., when the agents go to the door and there's a marked police car out front there, agents in the back, they see people peeking out of them. They know the people inside the house are aware that the police are surrounding the house. So from 2 p.m., they know the police are out there, they, they ring the doorbell, they are trying to gain entry to the house. And nobody come, Mr. Marlin, Mr. Moore, or Noran Midell, comes to the door to let them in. So from that point, they know they're not consenting to police entry. At that point, that's not what Randolph says. Randolph says he has to expressly deny entry. So you and I are both familiar with lots of cases where somebody says, you know, get a search warrant, get out, you can't come in here
. Nothing like that occurred. He, as you point out, apparently knew they were out there, said nothing, made no objection, is cohabitant on the other hand, after 90 minutes signed a document agreeing that the house could be entered without a search warrant. Right. So I'm having real trouble seeing how this fits in Randolph. Well, again, I would point to the Williams case. In that case, the person was inside of a hotel room. The police announced themselves and asked him to open the door and let them in. And he shut the door and he shot a deadbolt inside the door. And then he tried to... This case distinguishable. He never had any interaction with the police
. He didn't shut the door in their face. He didn't interact with the police. Doesn't that distinguish this case from your Williams case? It's a distinction, but I don't see it as a meaningful one in terms of the underlying basis of Randolph. Because the fact is they could not possibly make any mistake that he was not consenting when they're announcing themselves from 2 p.m., several hours go by. The girlfriend, Ms. Jones, comes to the door. She says, open up the police are in here. There's a deadbolt. Marlon doesn't open the deadbolt. His expression of non-consent could not be overlooked or mistaken under those circumstances. But he didn't refuse to consent either. Wouldn't that be fair to say? I do not agree with that because if he were not refusing to consent, he would have opened the deadbolt. Well, I mean, you're here to be content to let his fiancee deal with the police. Well, I don't know if he was content, but he certainly wasn't. He didn't object. He didn't verbally object. By the time they broke through the door with the battering ram, there was no objection left to make. From your perspective, silence instead of denoting consent, the notes objection. And that's the way it should be understood, and that's what you think the Supreme Court meant at Randolph. Absolutely not. It's not silence. It's all the circumstances here. It's the hours of refusing to come to the door. But again, with respect, counsel, the Mr
. Wouldn't that be fair to say? I do not agree with that because if he were not refusing to consent, he would have opened the deadbolt. Well, I mean, you're here to be content to let his fiancee deal with the police. Well, I don't know if he was content, but he certainly wasn't. He didn't object. He didn't verbally object. By the time they broke through the door with the battering ram, there was no objection left to make. From your perspective, silence instead of denoting consent, the notes objection. And that's the way it should be understood, and that's what you think the Supreme Court meant at Randolph. Absolutely not. It's not silence. It's all the circumstances here. It's the hours of refusing to come to the door. But again, with respect, counsel, the Mr. Moore did nothing overtly or covertly so far as the record shows to stop the police from coming in. Nothing. He didn't do anything. What he thought, maybe he was relieved that they were going to come in. I don't know. The record doesn't tell us. But again, as my colleagues have pointed out, in Williams, you have an overt act, you know, block the door. You know, work with the deadbolt. I get that. That's very clear. There's a physical action that the defendant takes to try to block the police. You're fine. Didn't do anything like that
. Moore did nothing overtly or covertly so far as the record shows to stop the police from coming in. Nothing. He didn't do anything. What he thought, maybe he was relieved that they were going to come in. I don't know. The record doesn't tell us. But again, as my colleagues have pointed out, in Williams, you have an overt act, you know, block the door. You know, work with the deadbolt. I get that. That's very clear. There's a physical action that the defendant takes to try to block the police. You're fine. Didn't do anything like that. Just silence. And I don't see in Williams. I don't see in Randolph where given the consent of the cohabitant, indeed an unusual, expressed, written, signed consent, that Randolph, an ex-co-pates, not ex-co-pates, but gives your client any kind of relief here under the Fourth Amendment claim. Well, and they have to agree to disagree for now. I'm going to say the balance of my time. Thank you, Mr. Governor. Good morning. May it please the court. My name is Teresa Rassass. I represent the United States. I'm from the District of Arizona. And I was trial counsel in this case
. Just silence. And I don't see in Williams. I don't see in Randolph where given the consent of the cohabitant, indeed an unusual, expressed, written, signed consent, that Randolph, an ex-co-pates, not ex-co-pates, but gives your client any kind of relief here under the Fourth Amendment claim. Well, and they have to agree to disagree for now. I'm going to say the balance of my time. Thank you, Mr. Governor. Good morning. May it please the court. My name is Teresa Rassass. I represent the United States. I'm from the District of Arizona. And I was trial counsel in this case. The conviction and the judgment in this case should be affirmed. First, as to Batson, Judge Campbell correctly found that as to that third step, the defendant did not meet his burden by showing by a preponderance of the evidence that race was a substantial factor. In fact, Judge Campbell was not persuaded that the government's race neutral reason was protectual. And your honor, he made that finding clear when he made the good faith finding similar to the Jamerson V. Rommel's case from the Supreme Court in 2013. And he didn't just say, I find in good faith that that's a race neutral reason, he found in good faith that the fact actually happened that the veneer person at question, veneer person 34, was in effect not paying attention during jury selection. And your honor, certainly, he deserves great deference for that decision. He was the one who was in the courtroom, not only observing the potential jurors and counsel in the defendant, but he had a chance to see the focus of the prosecutor in the case. And in that case, he could see. I agree I gather, contrary to your learned opponent, that clear error is a standard of review in this situation. Is that correct? I agree. And I agree that he's due to our deference. And I disagree that it's a de novo review because there was no procedural error here
. The conviction and the judgment in this case should be affirmed. First, as to Batson, Judge Campbell correctly found that as to that third step, the defendant did not meet his burden by showing by a preponderance of the evidence that race was a substantial factor. In fact, Judge Campbell was not persuaded that the government's race neutral reason was protectual. And your honor, he made that finding clear when he made the good faith finding similar to the Jamerson V. Rommel's case from the Supreme Court in 2013. And he didn't just say, I find in good faith that that's a race neutral reason, he found in good faith that the fact actually happened that the veneer person at question, veneer person 34, was in effect not paying attention during jury selection. And your honor, certainly, he deserves great deference for that decision. He was the one who was in the courtroom, not only observing the potential jurors and counsel in the defendant, but he had a chance to see the focus of the prosecutor in the case. And in that case, he could see. I agree I gather, contrary to your learned opponent, that clear error is a standard of review in this situation. Is that correct? I agree. And I agree that he's due to our deference. And I disagree that it's a de novo review because there was no procedural error here. In fact, he did analyze the persuasiveness of the government's race neutral reason. And he did that having noted that veneer person 6, 26, 30, 34, 36, and 46, each had issues regarding related to attentiveness or tiredness or inability to focus all for different reasons, one being a senior citizen used to napping, another somebody with the health issue who grew tired easily, none of those persons served as a juror in this case. So certainly, Judge Campbell deserves great deference in finding that the government's use of its primary strike against veneer person 34 for inattentiveness was race neutral and not contextual. And I'll remind your honors that it was defendant's burden of persuasion at that third step to persuade Judge Campbell that in fact, that reason reason was contextual. And Defense Counsel did try to do that at the trial level. He tried aside by side comparison. It was an effective because he wasn't able to do a side by side comparison as to the race neutral reason. If he had tried to do that, obviously it would have shown that anybody with that race neutral reason did not serve on the jury. So unless your honor has your honors, have other question as to bats and I'll move on to the fourth amendment issue. And that's what trebles me here because it seems that Randolph left an opening with a man, the coach and his presence. And here was seven hours before they rammed the door in and went in. He did not bolt the door in the face of the police. It was bolted already
. In fact, he did analyze the persuasiveness of the government's race neutral reason. And he did that having noted that veneer person 6, 26, 30, 34, 36, and 46, each had issues regarding related to attentiveness or tiredness or inability to focus all for different reasons, one being a senior citizen used to napping, another somebody with the health issue who grew tired easily, none of those persons served as a juror in this case. So certainly, Judge Campbell deserves great deference in finding that the government's use of its primary strike against veneer person 34 for inattentiveness was race neutral and not contextual. And I'll remind your honors that it was defendant's burden of persuasion at that third step to persuade Judge Campbell that in fact, that reason reason was contextual. And Defense Counsel did try to do that at the trial level. He tried aside by side comparison. It was an effective because he wasn't able to do a side by side comparison as to the race neutral reason. If he had tried to do that, obviously it would have shown that anybody with that race neutral reason did not serve on the jury. So unless your honor has your honors, have other question as to bats and I'll move on to the fourth amendment issue. And that's what trebles me here because it seems that Randolph left an opening with a man, the coach and his presence. And here was seven hours before they rammed the door in and went in. He did not bolt the door in the face of the police. It was bolted already. And his quotes fiance said, sure you can go in, but it seems to me that there is an opening here if one wishes to argue with Randolph. He was present. He refused to answer. He obviously could hear them. And seven hours he kept the doors bolted. Why shouldn't we assume that although he verbally didn't say, I don't want you in, his actions over that prolonged period of time would have indicated to the police he was not consenting? Your Honor, if this Court chooses to review whether more refused consent, it should find there was no plain error because Randolph's narrow holding requires that he be both present and expressly refused. Your Honor, we don't know who bolted the door. There were three adults and three children, I believe the oldest being 11 years old. We don't know who bolted the door. We don't know when. What we know is that he failed to act. And I'll sum it in this way. Miss Jones request that law enforcement enter her home, beats Mr
. And his quotes fiance said, sure you can go in, but it seems to me that there is an opening here if one wishes to argue with Randolph. He was present. He refused to answer. He obviously could hear them. And seven hours he kept the doors bolted. Why shouldn't we assume that although he verbally didn't say, I don't want you in, his actions over that prolonged period of time would have indicated to the police he was not consenting? Your Honor, if this Court chooses to review whether more refused consent, it should find there was no plain error because Randolph's narrow holding requires that he be both present and expressly refused. Your Honor, we don't know who bolted the door. There were three adults and three children, I believe the oldest being 11 years old. We don't know who bolted the door. We don't know when. What we know is that he failed to act. And I'll sum it in this way. Miss Jones request that law enforcement enter her home, beats Mr. Moore's non-action. If, once, Miss Jones said, yes, please enter my home. And in fact, participated in planning the best way to enter, used her own keys, attempted to get into her own home, which held her own children. Once she made that request in order for Randolph to be triggered, Mr. Moore needed to do something. He not only needed to be present, which in this case, he, we don't know where he was. We don't know if he was upstairs in a room, pretending like it wasn't happening with earphones on. We don't know if he stood at the door. But we know he did nothing. And so in order for Miss Jones consent to be overruled by Mr. Moore's refusal, he needed to act. And that's clear in Randolph, which is a narrow holding. In fact, the Randolph Court purposely made a narrow holding that would be able to be administered by law enforcement
. Moore's non-action. If, once, Miss Jones said, yes, please enter my home. And in fact, participated in planning the best way to enter, used her own keys, attempted to get into her own home, which held her own children. Once she made that request in order for Randolph to be triggered, Mr. Moore needed to do something. He not only needed to be present, which in this case, he, we don't know where he was. We don't know if he was upstairs in a room, pretending like it wasn't happening with earphones on. We don't know if he stood at the door. But we know he did nothing. And so in order for Miss Jones consent to be overruled by Mr. Moore's refusal, he needed to act. And that's clear in Randolph, which is a narrow holding. In fact, the Randolph Court purposely made a narrow holding that would be able to be administered by law enforcement. And this Court, I hope your honors received my 28J letter yesterday. This Court in 2009 in the Brown case also read Randolph as a narrow exception to the consent rule. And the Supreme Court did the same thing in 2014 in the Fernandez case, reminding us all that Randolph is a narrow exception to the consent rule. And so your honors, if there are no other questions as to the consent. Do your honors have any questions on any of the other issues presented in the briefs? I guess not, Mr. Sass. Thank you very much. Thank you for your time, your honors. Thank you, Mr. Kaplan back to you. Firstly, on the on the batson question and the idea that reliance on the good faith of the prosecution team is adequate. Again, the district court couldn't make any kind of meaningful assessment of the declarance good faith, the good faith of the one who will only, the only one who alleged to have seen this, without actually hearing the tale of the story, the facts from him. In batson itself, the Supreme Court said that if a batson objection is to be denied on the ground of the prosecutor's protestation or affirmation of his or her good faith, that the equal protection guarantee in this context would become vain and illusory
. And this Court, I hope your honors received my 28J letter yesterday. This Court in 2009 in the Brown case also read Randolph as a narrow exception to the consent rule. And the Supreme Court did the same thing in 2014 in the Fernandez case, reminding us all that Randolph is a narrow exception to the consent rule. And so your honors, if there are no other questions as to the consent. Do your honors have any questions on any of the other issues presented in the briefs? I guess not, Mr. Sass. Thank you very much. Thank you for your time, your honors. Thank you, Mr. Kaplan back to you. Firstly, on the on the batson question and the idea that reliance on the good faith of the prosecution team is adequate. Again, the district court couldn't make any kind of meaningful assessment of the declarance good faith, the good faith of the one who will only, the only one who alleged to have seen this, without actually hearing the tale of the story, the facts from him. In batson itself, the Supreme Court said that if a batson objection is to be denied on the ground of the prosecutor's protestation or affirmation of his or her good faith, that the equal protection guarantee in this context would become vain and illusory. The idea of relying on good faith is absolutely not from batson forward in adequate ground. The Third Circuit decision in coons, which is in the brief, the 11th Circuit decision in McGay-He, which is in the brief, very factually similar. The judge said I'm going to rely on these being responsible good faith lawyers, not adequate under batson. The opposing counsel mentioned that there were a number of other potential jurors, and I'm sorry I didn't write down which ones they were, who were not called, she indicated because of inattentiveness. I mean, that's not in the record as far as I know, but should that have any bearing on our view as to whether a comparative analysis would have made any difference in this case? It could have been part of a proper step three analysis that had been done. It would be pertinent, and there is some of that in the record, your 26th attentiveness or 36 attentiveness, those were on the record. Quickly on the Fourth Amendment, the government may reference to plain error, that's not the standard here, there was a motion to suppress, that was fully litigated, this is not a plain error of Fourth Amendment question. Finally, there was a little flurry of 28J letters yesterday afternoon, the government cited Brown and Fernandez, I filed a response of 28J letter pointing out that the objective or as the persons objecting to the entry in both of those cases were not present. There's no dispute here, Mr. Moore was present. If there are any questions? I don't think so, thank you, Mr. Kaplan, this was a solid thing, thank you, the case, I just start you to submit, we'll stand in recess for today. Thank you