Good morning, Your Honours, Vince Bronco, Federal Defenders on behalf of Mr. Varelas. A statute is divisible only when state law requires unanimity. Because the government has offered no cases showing that jurors must agree as to a specific controlled substance within each California drug statute. Councilor. Councilor, I understand the argument you're making and I don't understand why it's not foreclosed by car or not. Because Coronado never considered the issue of jury unanimity. Well, there's a footnote in the subsequent case that is arguably intentioned with Coronado that says they did. Well, what that footnote says. The footnote says the jury instructions were part of it. I don't know what they are
. Nobody's told me. I don't know whether California jurors are instructed as long as you agree that it's a drug on the list. You don't have to be unanimous on which drug or whether the jurors are told the charge is for this drug or the other one. And you have to be unanimous on that drug. There's nothing in the briefs or excerpts or anything that I could see that told me which way it went. And it sounds like that post Coronado case says that Coronado relies on the jury instructions in part. Well, it's not just, let me first address what the footnote in Rindon, I believe, what you're referring to. That's right. I couldn't remember that. Reference to Coronado
. And what Rindon says that Coronado did do is it just didn't look at the statutory language. It actually did look to jury instructions and it looked to the two cases that were brought up by the jury instructions. But it didn't say that Coronado actually considered jury unanimity. Let me follow up on Judge Kleinfeld's inquiry a little bit further because what I would like to know from you is whether the statute considered in Coronado is materially distinguishable from the statute that we're looking at here. Because it seems to me that if it is virtually identical in then as a three-judge panel, we can do nothing but follow Coronado. So how is the statute here just looking at the statute different from the one that was interpreted in Coronado? It does list different substances. I will agree that it is somewhat similar. The structure of it is essentially the same. Yes, but then you have to look at what Rindon says. And Rindon says only when state law requires that in order to convict the defendant, the jury must unanimously agree that he committed a particular substance difference contained within the distinctively worded statute
. And are we able to conclude that the statute contains alternative elements, not alternative means? If you follow... If Coronado governs and it's arguably inconsistent with a later case, then it would seem to me that our only option as a court would be to have an on-bought proceeding that reconciles the two. But if the statute here is essentially the same as the one in Coronado as a three-judge panel, we can't say that we're not going to follow it unless he is fatally undermined by Rindon. And Rindon has no right to do that as another three-judge panel. So what do we do in terms of our internal procedures? I think you do have two choices. One is to find a way to distinguish Coronado. Could we just explain? Because Coronado is a drug statute, structurally similar to the drug statute, in this case materially indistinguishable, actually. And Rindon is about the burglary statute and I think there's something about a weapon
. And that's pretty different from a drug statute. As a three-judge panel, we have to follow all the laws of the circuit. And I think that would force us to distinguish them and follow Coronado because that's also a drug case. As a three-judge panel, you are required to follow Rindon too. And Rindon sets up the framework to determine there's a first case that really examines how do we distinguish between elements and means? The reason that we've said in numerous cases that even a case that contains no reasoning to its holding or imperfect reasoning, we're still bound to follow it unless and until we follow our procedures for overruling it. So the fact that a later case has a fuller explanation of methodology doesn't take away the fact that we have to follow Coronado if the statute is materially similar. Well, I disagree because one way or another, you're going to have to extend the law here. For all of the cases on calendar, none of those drug statutes have been specifically analyzed whether or not they're divisible or not. So you have Coronado that's out there. I believe that there is a difference between 11351 and the statute in Coronado
. No, I think you're going to have to either follow Coronado or follow Rindon, but there's a way to do that because in this court has said, under our precedent, a previous decision does not bind a subsequent panel with respect to matters that were not considered or addressed in the other in the prior case. Coronado never addressed your unanimity. I know that it addressed the holding that this it addressed the issue. It said this statute is divisible. That's the holding of the case. Oh, I haven't picked this aside. Is divisible. That's the holding of the case. And if that that holding is binding on us. So if our statute looks almost identical to the statute that was considered there, we have to follow it no matter whether it contained a methodology or it didn't
. Well, that's I don't believe that's correct because they if it a case, if you're trying to extend the case and they never considered the key question for determining what's an element and what's a means. That's a argument. That's an argument or it's a part of the reasoning to a result. We're bound by the holding, not the reasoning. The holding pertains just to 11377. And the holding of Rindon says you have to consider your unanimity. Well, now the holding of Rindon primarily is about as Judge Kleinfeld said a burglary statute and it reasons to that by discussing a methodology. Well, there's the it discusses how to determine whether a case is the visible or individual and it speaks an absolute term and that's it says only one state law requires. And why that analysis if we had some other statute, maybe an assault and battery statute, but where we have two cases, one is spoken on a burglary statute. Well, we better follow Rindon and another has spoken on a drug statute
. We better follow Coronado. We have to follow. We can't say the reasoning in one would lead to a contrary result. For example, the reasoning in Rindon might well be, might well compel if the reasoning in Rindon is correct. An opposite result from the one we reached in Coronado. Coronado may be mistaken and the reasoning in Rindon may compel the conclusion that's mistaken. Nevertheless, I don't see where that gets you unless you have a third statute where we're deciding which to extend and which to limit. Because when you're deciding to apply something for a new statute and this is a different statute, you're going to have to choose to what reasoning you're going to apply. If those two reasoning is conflict, your choice is to either follow the line of cases that say if a court didn't consider an issue, we're not bound by it. I don't argue
. I think maybe I'll go with Rindon if it's a new statute, an assault and battery statute or something. Nice reasoning, but I don't see how I can and a materially similar statute to the Coronado one. Well, then I think if you think that those are in conflict, this resolution is the cost to respond to your own bond. Because if you believe that the Rindon analysis leads to an end of visibility, then the correct result is to go on one. This is due to jury consensus. Does the requirement of jury consensus always have to be found in a statute or could it be found in state interpretive law? Rindon says it has to be found in state interpretive law. I mean, how the statute is phrased if it's just junktively isn't controlling what's relevant is, does the state law require a finding of unanimity? And there is no case that that takes the analysis a little bit beyond a pure statutory question. Is our statute closer to Coronado or is our statute closer to Rindon? I mean, if we're looking if the unanimity requirement has its origin not necessarily in the statutory language, but in the interpretation of the statute. Then it's more towards Rindon because there's absolutely no cases in California that require jury unanimity. I see I have very little time
. Can I research some time for a little? Yes, we'll give you some rebuttal time. This is a very tricky question, and we've asked you a lot of questions. Good morning, may it please the Court, Benjamin Cazam, at the United States. The statute of issue here to pick up where we left off is nearly identical. Councillor Svon, I'm curious. Say, I think so far we've all agreed on that proposition. I'm curious, is the jury told in cases under this statute, I know California has model jury instructions? Yes, you're right. It's said that told you have to agree on the drug or you don't have to agree on the drug. It is told that you do have to agree on the drug. California jury instructions, 2302, which is cited on page 11 of our brief
. There are five points in the jury instructions for this offense. The first one is the substance was a controlled substance. If it stopped there, obviously, jury enemy could be in doubt. Instruction number five, however, is the substance was, and then the jury's substance read, instant relevant substance here, something to that effect. So that would support the disability theory of Coronado? Exactly, it requires that the specific substance be found by all of the jurors. This is not a case like a felony murder or a premeditated murder, but there are multiple ways of getting at the same element of the offense there. It's the state of mind element. Here, in the evidence shows this jury was pulled? This was a guilty plea. Oh, I'm sorry. Yes, this one was. Yes, mm-hmm. So the second point that I would say is, when don't know that these jury instructions were considered in Coronado, in footnote 11, in that case, it's clear. Part of the reason that it says that it's not inconsistent with Coronado, that case, is because Coronado considered the jury instructions and considered the same object, similar arguments that were presented here. I have a question on another aspect of the case. You have conceded or the government has conceded that the District Court committed plain error by not considering the modified categorical approach. And it's a little unclear to me whether Shepard related or permissible documents exist because ordinarily, if we were to remand for resettancing, it's normally on an open record, but there's kind of no point if there aren't any documents. So what's the situation here? You're on my understanding from the probation offices that those documents did exist for that case, as compared to a later similar drug trafficking conviction. This case was a relevant violation of the 11-351 here was in 1989. There was a subsequent case with the probation court, especially said, there are no judicial, no judicial documents available for that conditions. Is there some explanation in the record for why the government's lawyer in this case didn't find and produce for the court? The records that the court could consider for application of the modified categorical approach? No, you're on it as nothing in the record on that, which is why we have, as Judge Gouverneut had considered, that it needs to be remanded
. Yes, mm-hmm. So the second point that I would say is, when don't know that these jury instructions were considered in Coronado, in footnote 11, in that case, it's clear. Part of the reason that it says that it's not inconsistent with Coronado, that case, is because Coronado considered the jury instructions and considered the same object, similar arguments that were presented here. I have a question on another aspect of the case. You have conceded or the government has conceded that the District Court committed plain error by not considering the modified categorical approach. And it's a little unclear to me whether Shepard related or permissible documents exist because ordinarily, if we were to remand for resettancing, it's normally on an open record, but there's kind of no point if there aren't any documents. So what's the situation here? You're on my understanding from the probation offices that those documents did exist for that case, as compared to a later similar drug trafficking conviction. This case was a relevant violation of the 11-351 here was in 1989. There was a subsequent case with the probation court, especially said, there are no judicial, no judicial documents available for that conditions. Is there some explanation in the record for why the government's lawyer in this case didn't find and produce for the court? The records that the court could consider for application of the modified categorical approach? No, you're on it as nothing in the record on that, which is why we have, as Judge Gouverneut had considered, that it needs to be remanded. If it needs to be remanded, it's on an open record so that the full inquiry can be made into that question. So you're representing that it would not be futile to do that? No, yeah. In your view, it's a record. No, you're on it as opposed to cases cited by the appellant here, where cases that are made on a closed record because the documents that were available were produced and no outcome would change if it were sent back based on those documents here. No, there's a possibility. We, of course, don't know because we don't have those materials. Who that is, it's at least in theory possible. It's in theory possible, which is so that two exceptions to the general rule regarding open record is if nothing would change the outcome or if a full inquiry was already made. Neither of those clearly apply here because it's possible that these documents would change the outcome and no full inquiry into the specifics of this conviction was made. The only issue there was the divisibility, which now as we've discussed, for and out of this has decided
. If it needs to be remanded, it's on an open record so that the full inquiry can be made into that question. So you're representing that it would not be futile to do that? No, yeah. In your view, it's a record. No, you're on it as opposed to cases cited by the appellant here, where cases that are made on a closed record because the documents that were available were produced and no outcome would change if it were sent back based on those documents here. No, there's a possibility. We, of course, don't know because we don't have those materials. Who that is, it's at least in theory possible. It's in theory possible, which is so that two exceptions to the general rule regarding open record is if nothing would change the outcome or if a full inquiry was already made. Neither of those clearly apply here because it's possible that these documents would change the outcome and no full inquiry into the specifics of this conviction was made. The only issue there was the divisibility, which now as we've discussed, for and out of this has decided. So yes, the reason why your adversary does not want sentencing to be wide open, but only on the record you've got is that it seems like it's not right that a government lawyer should be too lazy to go and get the records needed. And then if they win fine and if they lose through the work they should have done the first time. That's correct, Johanna. I, that's a point while taken. What I'd say is, you know, the nature of the record here in this case is all of the excerpts that have put into this divisibility basket. The, in his sentencing papers, the defendants self said he was selling heroin. So never at issue was what the substance was. It wasn't cat or any of these hand-first substances that happened to be banned under California law and the schedules identified in 11351. There was no, he was selling some particular control substance. And so he was selling heroin
. So yes, the reason why your adversary does not want sentencing to be wide open, but only on the record you've got is that it seems like it's not right that a government lawyer should be too lazy to go and get the records needed. And then if they win fine and if they lose through the work they should have done the first time. That's correct, Johanna. I, that's a point while taken. What I'd say is, you know, the nature of the record here in this case is all of the excerpts that have put into this divisibility basket. The, in his sentencing papers, the defendants self said he was selling heroin. So never at issue was what the substance was. It wasn't cat or any of these hand-first substances that happened to be banned under California law and the schedules identified in 11351. There was no, he was selling some particular control substance. And so he was selling heroin. And as a result, he suffered this 1989 conviction. So no following clearly was done. It's a point where I'm taking the government should have introduced these shepherd documents. And as Johanna, we've conceded that. But the, the weed, that's the reason for the, for the error there. And of course the law has developed since then. At the time, it wasn't as clear as it is now that that was necessary when the substance was admitted to. Correct. Yeah, the law has developed, the law has developed, I mean, point out, came out after this brief as file. So the law here has developed significantly in multiple ways
. And as a result, he suffered this 1989 conviction. So no following clearly was done. It's a point where I'm taking the government should have introduced these shepherd documents. And as Johanna, we've conceded that. But the, the weed, that's the reason for the, for the error there. And of course the law has developed since then. At the time, it wasn't as clear as it is now that that was necessary when the substance was admitted to. Correct. Yeah, the law has developed, the law has developed, I mean, point out, came out after this brief as file. So the law here has developed significantly in multiple ways. And would we need to make the open record decision or could we remain to this record to decide? My reading of previous cases of this nature in which cases are set back for resensing is the court tends to specify whether there would be an open record on the. I think it was Matthews, the on-bond case that set out the criteria that this court will use to make that determination. Who I think it's that case, which is such an exciting and a case very similar this one, espinoza Martinez. Those two criteria the ones I mentioned. Espinoza Morales, or is there another one I'm missing? Espinoza Martinez, but it can't be. It could be such a case. I didn't copy it for my book. I think we'll find it. I'm certain it's not a problem. Thank you, Your Honor
. And would we need to make the open record decision or could we remain to this record to decide? My reading of previous cases of this nature in which cases are set back for resensing is the court tends to specify whether there would be an open record on the. I think it was Matthews, the on-bond case that set out the criteria that this court will use to make that determination. Who I think it's that case, which is such an exciting and a case very similar this one, espinoza Martinez. Those two criteria the ones I mentioned. Espinoza Morales, or is there another one I'm missing? Espinoza Martinez, but it can't be. It could be such a case. I didn't copy it for my book. I think we'll find it. I'm certain it's not a problem. Thank you, Your Honor. So unless the court has any further questions, I'll submit on that. Thank you. Thank you. Mr. Bronco, Martin, if you take two minutes for a rebuttal, it's complicated. I'll first take up the question regarding the jury instructions. The jury instructions do not specifically say that you must put in the specific control substance and only one specific control substance. The actual language in the instruction, the model instruction says, quote-unquote, insert type of controlled substance. The word type could mean, and if you look at the individual drug schedules, they could be a type could be opiates. And then under that opiates, there's a long list, some of which are or not
. So unless the court has any further questions, I'll submit on that. Thank you. Thank you. Mr. Bronco, Martin, if you take two minutes for a rebuttal, it's complicated. I'll first take up the question regarding the jury instructions. The jury instructions do not specifically say that you must put in the specific control substance and only one specific control substance. The actual language in the instruction, the model instruction says, quote-unquote, insert type of controlled substance. The word type could mean, and if you look at the individual drug schedules, they could be a type could be opiates. And then under that opiates, there's a long list, some of which are or not. So this plain language of the year. There's been the opiates, there are some non-regulated drugs from the US law point of view. I believe so, but I don't have that on the tip of my tongue. But what the California statues are basically families of drugs within these. So each of these start with, okay, this is a family of, you know, say opiates or depressions or et cetera. And so then they have the list below those. So this insert type could refer to that. Plus, there's nothing in this instruction that says you can't put multiple substance within that same instruction. And we've seen that in case, in any other case, some would just say a brief where the jury will be instructed. You must, all right, the controlled substance was cocaine or cocaine-based
. So this plain language of the year. There's been the opiates, there are some non-regulated drugs from the US law point of view. I believe so, but I don't have that on the tip of my tongue. But what the California statues are basically families of drugs within these. So each of these start with, okay, this is a family of, you know, say opiates or depressions or et cetera. And so then they have the list below those. So this insert type could refer to that. Plus, there's nothing in this instruction that says you can't put multiple substance within that same instruction. And we've seen that in case, in any other case, some would just say a brief where the jury will be instructed. You must, all right, the controlled substance was cocaine or cocaine-based. So it's not limiting it to one specific drug. I want to go to the scope of the reading. You could write down two things on the blank. Well, the blank is actually- The federal list and weren't only on the state list? The blank is actually filled out by the judge in the party's pre-instruction. So that's the model instructions, which someone writes in. So it would depend on what's at issue in that case, whether they put a general type, several specific types. It's just not clear from the plain language of the instruction. Getting back to the scope of the remand issue. There is evidence that- Yeah, first of all, the case is espidosum or Alice. And that has this exception to the general rule when the facts are developed
. So it's not limiting it to one specific drug. I want to go to the scope of the reading. You could write down two things on the blank. Well, the blank is actually- The federal list and weren't only on the state list? The blank is actually filled out by the judge in the party's pre-instruction. So that's the model instructions, which someone writes in. So it would depend on what's at issue in that case, whether they put a general type, several specific types. It's just not clear from the plain language of the instruction. Getting back to the scope of the remand issue. There is evidence that- Yeah, first of all, the case is espidosum or Alice. And that has this exception to the general rule when the facts are developed. And if you look at the probation report on page six, when it talks about this offense, it does mention that they had the complaint. And then at the sentencing, and this is excerpt of record, I believe it's 13, the probation officers, we have nothing further to add. So I submit that they had only one document that's all they had at the time, and they shouldn't get a second bite of it. Well, usually the reason people only have one document and don't have the document they need is that it's fair amount of trouble to get the document they need. Nobody bothered. Well, and there was an objection that this was an overbought statute, and the government nor the probation officer tried to do anything when they're asking for the modified category of approach. But you're quite also admitted that it was heroin, right? My client admitted that he had a heroin problem, and it could have been referring to either one of the convictions. But factual admissions in would don't satisfy Taylor anyway. No, no, that's agreed. Thank you very much
. So the case just started to submit it, and we will be continuing with a series of..