Legal Case Summary

The United States Court of Appeals for the Fifth Circuit is now open according to law. God save the United States and the Son of the Record. Please see. Please. All right. Welcome to Fifth Circuit, ladies and gentlemen. We have two cases on the docket. And I think all of you understand our signals. They operate like crackling signals. As long as you have a green line to run and free. When the yellow line appeared, again the burnt green argument to a clone. And then when the red line appeared, it's finished your son of the stock. And our mind that would vote for a vote for you. We call it first case. You have to be read. And we hear first from Mr. Harris, for us. Harris. Did I already remind you? No, Judge. I tell people if you pretend the Rs are D's, get close to rolling the Rs. Okay. Let me ask you one thing, we're in there. Sure. I have here the original of the exhibits, 7 and 8, which you're proportionally what was submitted to the jury. And they have both the forms, 44, 73 and 33, 10 in the packet. Do you have anything to refute that this is what went to the jury? Judge, what I have are the records itself where references are made to governments exhibit 7 and 8. And then in referencing government exhibit 9, I do judge

. I the answer is yes. I will tell you what it is. Okay. At the, on the record, at page 513, where the government has gone through and talked about governments exhibits 7 and 8 being 4 and 4 and 4 and 7 and 3, they then talk about governments exhibit 9. And the question from the prosecutor has explained to the ladies and gentlemen of the jury why there are additional or added paperwork in governments exhibit 9. Answer. The reason being is the federal firearms licensee has gone out of business and they're required once they go out of business to submit all documents with respect to firearms transactions to the ATF. And for the purposes of court, they submit or give to the requesting agent a certified copy. And this acts as the actual document. Question. So it's the 4473, like the other ones, referencing governments exhibit 7 and 8. But with a certified document because it comes from the ATF as opposed to from the actual federal firearms dealer because they've gone out of business. That's one instance, Judge. The other is the... I understand and I'm prepared to argue either way. I do think that there's a legitimate factual dispute, but in the end, I don't believe that the additional materials provide any weight to my arguments regarding sufficiency. Well, we're going to let these be 5 because they only phrase it before the three-wire observation of the jury. So we'll have the answer. Thank you, Judge. Are they in before us on appeal where they part of the pellet record? That's the big question, Judge. I don't doubt that governments exhibit 7 and 8 came into evidence. The question is in what form? And if we go to the record..

. But when they brought up here to us as part of the record excerpts, and are they part of the appellate record? No, they were not part of the appellate record when it was certified by the district. The whole thing in the record was a digital exchange copy. So we directed that the original be filed and that's what I had in front. There was no digital copy of the exhibits filed with the original certified record on appeal. Well, a lot of times the exhibits stay in the district court and we have to call them up. They just don't send everything up. But they were in the district court record. They were not, Judge. The district court released them to the parties. And so the parties, the U.S. Attorney's Office, has collected the documents you now have from their ATF agent or their government agent. They did not collect those documents from the court, from the court clerk, or from any court personnel. Okay, go ahead with your argument. Okay. Council, let me ask one question. And what you just explained a while ago, I got the idea that one or the other of these FFLs, Federal Fire Arm License Seeds, went out of business. Is that correct? I believe that's true with respect to government's exhibit nine. Those are not, that's not an issue at exhibit here today. The exhibits at issue here today are government's exhibits seven and eight. Okay, so is it, is the record clear that the FFLs mentioned in those documents did not go out of business. They were in business at the time that the purported license form was filled out. I believe that's true, but I'm not certain. Well, you're not trying to answer. No, I was not good. All right, thank you

. Does the government need to prove that Bachman, Pawn and Academy Sports were FFLs, or does the government need only prove that there was an agreement to make a false statement to some license dealer? For the purposes of subject matter jurisdiction, whether you're looking at the conspiracy count or the substantive counts, there has to be a, they have to defraud a licensed dealer or else there's no federal jurisdiction. Right, I'm asking, do they have to, is there, do they have to be some evidence that they were trying to defraud a licensed dealer, or do they have to have evidence that they were trying to defraud Bachman, Pawn and Academy Sports, and that that was a licensed dealer. That's two different things. Which is it that the government has to prove? The latter judges, what I believe. Why? Because if Bachman, Pawn or Academy were not licensed dealers, then this court would not have jurisdiction. For example, if they were private entities and Mr. Cress and Mr. Reed decided to defraud the private entity, who had no duty to be a federal licensee, there'd be no federal crime. Well, any staying operations, you know, where the accused agrees to sell dealt that doesn't exist, that's enough to make out the conspiracy challenge. It may be for an 846 conspiracy, but the 371 conspiracy requires that the object of the conspiracy be a federal crime. There is a similar case with respect to banks and proof of the FDIC insurance. The name escapes me now, but this court in analyzing the conspiracy issue, and whether or not the simply the intent to defraud a federally insured bank was sufficient, said no that the bank has to actually be federally insured, or else we don't have... No, Judge, I came across it within the last two weeks and I haven't... You have a couple of months, you have a second chance. I will, Judge. That's not in your brief, USV Schultz, which it has to be an FDIC insured brief bank. I think that's in your reply brief. Are you talking about a different case? There is a different case, Judge. But that case also says that, doesn't it? And it's in your brief. I believe so. That's me. That proof that something is FDIC insured is a jurisdictional element, and by analogy, you're arguing that proof that their federally licensed dealer is a jurisdictional element

. That's true. That is true. That's your argument before us today. That's my... The other thing that I think is very important is there has to be proof that it was a licensed dealer at the time of the subject sale. And I think that's a significant importance for this reason. Take the Form 4473s and the other documents admitted into evidence. At most, you can infer that the clerk who didn't come to court, didn't testify, is a named unknown person, says that Bachmann-Pan has that particular license number. If we look at page 3 on government's exhibits 7 and 8, this whole case is about this particular issue. Whether or not this federal license number is sufficient to carry the government's burden. At most, this number is simply what this person who didn't come to court and testify, the transfer seller's name, is purporting as the license number. Well, you've got the issue that somebody who sells a gun wouldn't be collecting these forms unless he was a dealer and had to collect them under the regulations. Couldn't the jurors consider that? They could, Judge. He might out of an abundance of caution. But what these forms don't do is these forms don't tell you or anybody in the juror that this particular license was valid on the date of transfer. For some reason, they were right and then for some reason it was valid and then maybe to be up to the defendant to show that it had expired. Let's take a Notary stamp, for example, Judge. Notary stamp has on its face very often or the Notary is required to put into the document that her commission expires on a particular date or time or that his does. If I get pulled over by a traffic cop and he asks to see my license, if I'm one day beyond the date that it expires, that license is not valid. There is nothing in the record, absolutely zero evidence, to show that these particular license dealers were licensed at the time of the subject sale. It's an issue that this court addressed in the 70s in Frazier, where this court said, actually it's the concurrence in Frazier from Chief Justice Brown, conclusively, conclusory oral testimony of the kind we find adequate is just barely so. And in a number of situations, it might not suffice at all. In that case, a government agent took the stand to testify that the seller was a licensed firearms dealer. And no agent testified to that in this case

. Correct, Judge. But could the jury infer from the fact that the transactions actually occurred that ATF would not have approved of the transactions if the licenses were not current? So could that create an inference that the licenses were current? The fact that the transactions themselves went through. You need additional information, I believe, to make that inference. For example, what information was transmitted to ATF beyond the information of the purchaser? Was the license number actually required to be transferred to ATF? There's no testimony about that at all. And as far as I understand, the only thing that ATF is checking is whether the seller or the purchaser is qualified to purchase a gun. After Abramsky, the pronunciation may not be correct. Do you concede that it is in crime for a straw purchaser to falsely represent to an FFL that is a true briar? That's been decided. It was not decided at the time you filed your brief. But you concede that that is indeed a crime as the Supreme Court is articulated. By five to four decision, it is a crime. Well, five to four counts in this world. It's a crime. And so what was the lapse of time between the date that somebody filled out the form seeking to purchase the firearm in question? And the testimony in this case relative to license? I don't know, but I believe there was no testimony with respect to the license. The only evidence is the documentary evidence. There's no oral testimony that the license was valid at the time. Are you telling me that no individual for either of the lead to the crime? The fact that the Supreme Court has issued a firearm dealers came to court and testified regarding the form that was issued to that firearm dealer. That's correct, Judge. No employee? No proprietor? No agent? Came to court and testified that these dealers were licensed on this date. Who had the form that you are referring to as the one that the government says is sufficient? Where did that come from? My understanding is these were collected from the individual sellers. We have a license number on the phone. We have a license number. It's not in the same format as the suggested format by the ATF form. But we have a number. We have a number. And I think we have a number of the bind cases where we've heard that if you put the charter in, the question of the bind case is whether the bind was chartered. And if you put that bind charter in, that's enough

. Now how do you know from that that is not expired? Well there's also an A case where the bank certificate, a copy of it, was placed into evidence. But it reflected a date seven years prior to the alleged fraudulent act. And of course, I don't have an expiration date. I mean the charter is just charter. And if there's some malfeasance or something is taken away, but just with the barricard, you don't know whether that's expired or none of them. There's nothing to that a jury could use to infer either that it was valid. But aren't there plenty of cases where we've heard that's enough in the bank cases, just the charter itself? There's the Grady Davis case that happened last year where different banks, the charter reflected a different bank. We don't have a license that we can point to to say yes. Look, Bachmann-Pahn actually corresponds to this license number that's reported and placed here by some unknown named person. Well, we've got a strange co-enternum so that a guy that sells a license is going to trouble to get all these forms filled out and submit them to the ATF. The quality control measure, I hope, is higher than a strange coincidence when it comes to the sufficiency of the evidence, Judge. You know, it doesn't take a whole lot because the jury's gone. I mean, you just need to raise an inference and then they can draw a conclusion from it. You don't have to show a conclusion that. Well, this court is really the last quality control measure. We recognize that juries make mistakes, that trial courts make mistakes. And the whole point of sufficiency review is to go back and see is the quality of freedom that we expect in this country being met by the evidence that's being introduced to trial. I don't know that any company would submit to $9,9 billion on this kind of evidence. And yet, a man is in jail for almost 15 years on this kind of evidence. I'm not going to talk about his character or anything like that, but it's just the quality of the evidence. Yeah. Thank you. Thank you. Do you have time after the battle? Mr. Barata. Mr

. Barata. Good morning. My name is Ted in Pirato and I represent the United States. I'm a trial attorney here in Houston and I'm really honored to be here today, Barata, before you all. Councilor Wooden, please speak directly into the mic. Yes, Your Honor. Move it up. I'll pick it up. That's good. Okay. Clear that the two sides. Let me ask you that. My question here is sufficient to the evidence approved that these two companies were licensed in the firearm dealers. Is there any evidence in the record of them these four that tended to show that? The co-defendant testified and said that the company that he purchased the firearm for was in FFL, but the strongest evidence are the 44-73s and the 33-10s. The co-defendant testified the Bachman Pond in Academy Sports was in FFL. He testified that I believe he bought it from Bachman Pond. He testified that he purchased it from an FFL. That was a question. Okay. Where in the record do I go for those citations? It was at, well, it creases testimony when he's being under undirect examination. I don't have the page number. Okay. Because you're saying that's on its face enough. No, no, no, no. The judge asked, Judge Davis asked me if there was other evidence. Right

. I'm asking if there are enough testimony to support it. Apart from these exhibits, if these exhibits don't do it, is there testimony in the record that would satisfy your burden here? I think the forms are sufficient, Your Honor. If putting the forms to one side is there testimony in the record that is sufficient? No. So there's the 44-73s that were admitted into evidence from Special Agent Sandy Riley. He went to, to answer, to Demostra's question, he went to the pawn shop and Academy because that's where they keep the 44-73s. And the 33-10s are actually facts to three different law enforcement agencies. They're facts to ATF, DPS, and the Sheriff's Office. And that's shown in government's exhibit eight, the one for a plan. Where in the record does it say that seven and eight were admitted? With Mr. Special Agent Riley's testimony. That they were, in fact, admitted into evidence. Yes, Your Honor. Special Agent Riley on his direct sentence. But these are the crucial things that make your case, then why were not they included with the appellate record that you sent up? Why were these not in the record excerpts? If this is your whole case depends upon this, why was this not part of the record excerpts? They were sent up in the supplemental, Your Honor. Why weren't they sent up originally if the whole case hinges on these documents? It's the only document that should be included. I mean, it's the whole case depends on it. Judge, I can't answer that question. I don't know. I didn't write the brief. However, Judge, they weren't admitted into the trial. Did you, were you a trial? No, Your Honor. I was not trial counsel. You were a trial attorney, but I was not trial counsel. I was not trial counsel. For this case. No, Your Honor

. Okay. Did these documents come from the trial court or did these documents come from the DOJs files or the agents files or someone associated with the government? I called Special Agent Sandy Riley and I asked for the trial exhibit seven and eight which he had preserved in his office because he's required to keep them. He hand-delivered them to me and they are the ones that Judge Davis has this morning. How do we know that these are what was admitted in the trial? Because I looked in the trial notebooks, Your Honor. I looked in the trial notebooks that were admitted to trial. I spoke to trial counsel. I asked them and the trial exhibits were part of the record. And they're part. For the jury in the box. And did they hear and see all of this? I'm sorry, Your Honor. I didn't hear you. Was the jury in the box when they, when you were all of these transactions that you're talking about occurred? Were they in the box? Did the jury hear any of that? That the transaction that they went and purchased these firearms? No, that the exhibits were admitted. Yes, they were in the box when Special Agent Sandy Riley testified, government's exhibits seven and eight were admitted through special. But we don't know that these are seven and eight because these students come from the court is seven and eight. These came from the officer, the agent after the fact. Judge, 4473 is contained in the 3310s. In fact, I did fire on him. Okay, so what does that mean? You were saying it somewhere else in the record? No. What is saying? They are part of a 4473 packet. You can't have a 3310 without a 4473. I've never even heard of 3310s before this case. There are multiple sales records that are contained in the four. But I'm saying, how do we know that the seven and eight were the accurate, seven and eight? Because I think in the trial record, Your Honor, and they're in the trial notebooks. And I spoke to COVID-19. Let me just ask you to. And they're in the notebook

. Let me just ask you to tell us, part of this file will be proceeding. I mean, ordinary, one of the exhibit interviews is the court that's where it stays in that record. And why was that not followed here? From what I understand, I spoke to the case coordinator. They can't keep the trial exhibits. So they turn them back over to trial counsel who keeps them. However, the original 4473s cannot have to be kept by the ATF. So government's exhibit, seven and eight were returned to the ATF. What stage in the trial record date? I'm sorry. Is your copy of the stage in the trial record? Are you thinking of the government exhibits? No. From what I understand, it's taken back and held by the state of the trial prosecutors. Counsel. Yes, Your Honor. When a firearm dealer gets a license, does he get a piece of paper that he can hold and say, here is my license? I don't believe that's in the record. I can speak for personal experience of doing these cases. Yes, they receive a license, which gives them their FFL number, which is what the jury saw in this case. They saw the 4473s. If you don't want to consider the 3310s, fine. Don't consider them. We have enough evidence with just the 4473s. The 4473s contain the name, the stamp of the FFL and the FFL license and the data of the transaction. They were held by the companies and the jury can reasonably infer from that. This is a form, this isn't just some receipt that's filled out. This is a government form that's required by statute and federal regulation that they keep. And this is what the jury can reasonably infer, like Judge Davis said. They can reasonably infer that on the data, these transactions, they had valid license. For the FFLs to fill this out and put up license, that's not valid. They can get in a lot of trouble for that. They can be brought up on perjury charges or some type of federal prosecution. It's very explicit in the 4473, what they're required to do. Are you familiar with a series of bank cases where we've repeatedly chastised the government for not putting in a witness on to make the element that's the subject matter jurisdiction element and that we said, oh, it's close to the line here. In fact, I believe last year, we rejected one because we've warned so many times and they didn't put on a witness to do that. Do you agree that in this, so you're shaking even, yes? On the other side, I am. You're aware of that line of cases. And you agree that it's analogous to this requirement that you would have to put on that they were a license fire arm dealer, just like you have to put on that it's a valid bank. No, the license is not required. Case, invalid and Frazier says you don't have to produce a license. Right, but did you have to put on some evidence that they were a proper FF. FF, and we did judge, it's right here. But wouldn't you want to use belt and suspenders to put on a DRA-TF agent to say, and they were a valid FF at the time? And wouldn't you want to, in a good, this was not done according to the best standards, was it? Would you can see that? Judge, hindsight's 2020 after every one of my trials, I go back and I look at the record. But this is the case, I could have done things. But this is the case, I could have done things. I think what we're looking at today is whether it's sufficient and I think it's, if we could go back in time, I'm sure the prosecutors would have done it differently. What case says that this is sufficient? Is there anything in the record that says other instances in which either one of these to FFLs did exactly what you said they did. In this case, that is, they issued a notice to the agencies pursuant to their responsibility as being a FFL licensee. Did they, they, is this a single case transaction or is this an instance of a whole bunch of similar transactions that these two licensees did over a period of time? I'm not sure what you're asking, you're all right. I think it's a single instance what we're talking about. I'm not really clear, so I don't. You don't have a pattern with this, with this shot that these people, it's one incident, right? In this case? Yes. Yes, they purchased one from two far, three farms from Focman Pond and two or three from Academy, sporting units. And neither Focman Pond or Academy had done any other issuance of licensees. In the general time, these transactions occurred. Not that there's any evidence

. They can get in a lot of trouble for that. They can be brought up on perjury charges or some type of federal prosecution. It's very explicit in the 4473, what they're required to do. Are you familiar with a series of bank cases where we've repeatedly chastised the government for not putting in a witness on to make the element that's the subject matter jurisdiction element and that we said, oh, it's close to the line here. In fact, I believe last year, we rejected one because we've warned so many times and they didn't put on a witness to do that. Do you agree that in this, so you're shaking even, yes? On the other side, I am. You're aware of that line of cases. And you agree that it's analogous to this requirement that you would have to put on that they were a license fire arm dealer, just like you have to put on that it's a valid bank. No, the license is not required. Case, invalid and Frazier says you don't have to produce a license. Right, but did you have to put on some evidence that they were a proper FF. FF, and we did judge, it's right here. But wouldn't you want to use belt and suspenders to put on a DRA-TF agent to say, and they were a valid FF at the time? And wouldn't you want to, in a good, this was not done according to the best standards, was it? Would you can see that? Judge, hindsight's 2020 after every one of my trials, I go back and I look at the record. But this is the case, I could have done things. But this is the case, I could have done things. I think what we're looking at today is whether it's sufficient and I think it's, if we could go back in time, I'm sure the prosecutors would have done it differently. What case says that this is sufficient? Is there anything in the record that says other instances in which either one of these to FFLs did exactly what you said they did. In this case, that is, they issued a notice to the agencies pursuant to their responsibility as being a FFL licensee. Did they, they, is this a single case transaction or is this an instance of a whole bunch of similar transactions that these two licensees did over a period of time? I'm not sure what you're asking, you're all right. I think it's a single instance what we're talking about. I'm not really clear, so I don't. You don't have a pattern with this, with this shot that these people, it's one incident, right? In this case? Yes. Yes, they purchased one from two far, three farms from Focman Pond and two or three from Academy, sporting units. And neither Focman Pond or Academy had done any other issuance of licensees. In the general time, these transactions occurred. Not that there's any evidence. I could answer that because I don't believe it's in the record at trial. They just focused on these transactions. Well, when you're asking the jury to infer, what all are you suggesting that the jury draw an inference from? The one occasion on this case when the number on the farm is what you say is their license number. Yes, I'm asking them to infer from government's exhibit seven and eight that the information that's contained in there can, it's sufficient to establish that both of these FFL's were licensed on the date of the transactions because of the case. Because what? Tell me that. Well, again, your honor, they are government forms. They're required to be filled out by statute and regulation. They're signed by the seller. They're signed by the buyer. They're not just receipts. They're required to fill these out to fill them out improperly or they could get in trouble for that. They could be prosecuted federally for that. They could be charged with perjury. This isn't just any other form. It also, it has the name. It has the stamp. It has their light full license number. A jury could reason. But who knows that the number on the form is their license number. As I understand it, there's nothing on the form that says that. Well, it says federal firearms license number right here and underneath that it's stamped the license number. Yeah, I just have to read the form and it identifies what it is. What do you say to counsels arguing like that? Nobody could know where that license was still in effect. Why didn't they raise that at the trial court judge? That was something that should have been. Well, in your jurisdiction, I mean, you got a jurisdictional issue. You're going to have to raise it right

. I could answer that because I don't believe it's in the record at trial. They just focused on these transactions. Well, when you're asking the jury to infer, what all are you suggesting that the jury draw an inference from? The one occasion on this case when the number on the farm is what you say is their license number. Yes, I'm asking them to infer from government's exhibit seven and eight that the information that's contained in there can, it's sufficient to establish that both of these FFL's were licensed on the date of the transactions because of the case. Because what? Tell me that. Well, again, your honor, they are government forms. They're required to be filled out by statute and regulation. They're signed by the seller. They're signed by the buyer. They're not just receipts. They're required to fill these out to fill them out improperly or they could get in trouble for that. They could be prosecuted federally for that. They could be charged with perjury. This isn't just any other form. It also, it has the name. It has the stamp. It has their light full license number. A jury could reason. But who knows that the number on the form is their license number. As I understand it, there's nothing on the form that says that. Well, it says federal firearms license number right here and underneath that it's stamped the license number. Yeah, I just have to read the form and it identifies what it is. What do you say to counsels arguing like that? Nobody could know where that license was still in effect. Why didn't they raise that at the trial court judge? That was something that should have been. Well, in your jurisdiction, I mean, you got a jurisdictional issue. You're going to have to raise it right. I don't know if this is jurisdictional judge. This is like the Schultz case. Well, a couple other circuits that say it is. That's the same it is for the time being. Okay, so your question is, how could a jury know whether or not these licenses were in effect on the day of the sale? They've got a license number and let's say they could infer that in one time, this would have a license. How do they know it was valid on the day of the sale? I think that they have to reasonably infer that a licensed FFL that's in good standing would not falsify a form. I think that's a reasonable inference under both standards before the court manifest miscarriage of justice and the Jackson standard. I think it would be sufficient. Who would have falsified the form if they're not in good, if they're not in current on their FFL? Pond shops that are not as reputable as Academy and Bachman Pond aren't diligent in their records. I mean, it happens all the time. But you don't have to be falsifying. You could just let it lapsed. Judge, this is Academy sporting goods. They deal in full. Okay. I think the jury could take that in consideration as well. Every juror sitting in the pan. What about the pawn shop? I'm not familiar with Bachman Pond, you know, but I think from Academy, everybody's shop there. I was there yesterday. I mean, I went into the gun counter and they're selling guns left and right. I mean, they're filling out these forms. I think that a jury can reasonably infer from the form and their own personal experience, which they're allowed to bring with them. They can infer that their license is still good. Let's go into this jurisdictional point. Is it the government's position at this stage that it is not jurisdiction and if so, what is your best authority for that? I don't have it. It's not cited on the record and we didn't put it in our brief

. I don't know if this is jurisdictional judge. This is like the Schultz case. Well, a couple other circuits that say it is. That's the same it is for the time being. Okay, so your question is, how could a jury know whether or not these licenses were in effect on the day of the sale? They've got a license number and let's say they could infer that in one time, this would have a license. How do they know it was valid on the day of the sale? I think that they have to reasonably infer that a licensed FFL that's in good standing would not falsify a form. I think that's a reasonable inference under both standards before the court manifest miscarriage of justice and the Jackson standard. I think it would be sufficient. Who would have falsified the form if they're not in good, if they're not in current on their FFL? Pond shops that are not as reputable as Academy and Bachman Pond aren't diligent in their records. I mean, it happens all the time. But you don't have to be falsifying. You could just let it lapsed. Judge, this is Academy sporting goods. They deal in full. Okay. I think the jury could take that in consideration as well. Every juror sitting in the pan. What about the pawn shop? I'm not familiar with Bachman Pond, you know, but I think from Academy, everybody's shop there. I was there yesterday. I mean, I went into the gun counter and they're selling guns left and right. I mean, they're filling out these forms. I think that a jury can reasonably infer from the form and their own personal experience, which they're allowed to bring with them. They can infer that their license is still good. Let's go into this jurisdictional point. Is it the government's position at this stage that it is not jurisdiction and if so, what is your best authority for that? I don't have it. It's not cited on the record and we didn't put it in our brief. That's just going through some. When I was reviewing the Schultz case, Schultz dealt with the FDIC and when I was doing my own research, I don't have a case, Your Honor. And if you'd like me to, I could just... Well, I'm just curious. Are you the government taking the position? You list the government that in the FIT circuit, it is not jurisdictional that this requirement is not jurisdictional. That's a big deal. And so I just want to know whether it is or not. Based on what I read, I thought that Interstate Commerce was inferred that this was not jurisdictional question that it was inferred because it's the interest state commerce, which would then affect Interstate Commerce. So you're asking us to create a circuit split here? Is that correct? Because no circuit has yet held that way. Am I correct? Judge, I'd have to look into that more before I answer it. I don't feel comfortable doing that. It wasn't in the brief. So you're not relying on the jurisdictional argument today? No, I'm relying on whether this was sufficient or not. Okay, sufficiency is the whole thing. Yes. You're not saying it's not jurisdictional. No, no, no, no. That's a different question and I want to make clear. I think that you have your own view about it, but you're not telling me as the government that it's not jurisdictional. No, I'm not. I'm saying, Judge, that this is sufficient. That these 4473s, that a reasonable jury could look at them and infer that both Bachman Pond and Academy were licensed FFLs on the date of the transactions. You mentioned the Code of Defense testimony that he bought them from FFL. So in the indication, he had any knowledge about that

. That's just going through some. When I was reviewing the Schultz case, Schultz dealt with the FDIC and when I was doing my own research, I don't have a case, Your Honor. And if you'd like me to, I could just... Well, I'm just curious. Are you the government taking the position? You list the government that in the FIT circuit, it is not jurisdictional that this requirement is not jurisdictional. That's a big deal. And so I just want to know whether it is or not. Based on what I read, I thought that Interstate Commerce was inferred that this was not jurisdictional question that it was inferred because it's the interest state commerce, which would then affect Interstate Commerce. So you're asking us to create a circuit split here? Is that correct? Because no circuit has yet held that way. Am I correct? Judge, I'd have to look into that more before I answer it. I don't feel comfortable doing that. It wasn't in the brief. So you're not relying on the jurisdictional argument today? No, I'm relying on whether this was sufficient or not. Okay, sufficiency is the whole thing. Yes. You're not saying it's not jurisdictional. No, no, no, no. That's a different question and I want to make clear. I think that you have your own view about it, but you're not telling me as the government that it's not jurisdictional. No, I'm not. I'm saying, Judge, that this is sufficient. That these 4473s, that a reasonable jury could look at them and infer that both Bachman Pond and Academy were licensed FFLs on the date of the transactions. You mentioned the Code of Defense testimony that he bought them from FFL. So in the indication, he had any knowledge about that. Judge, it was a weak answer, but I was asked a question and I stick to the record. I'm not saying it's the best evidence we have. In fact, I believe it was a compound question and I didn't. I wasn't personally going to bring it up today, but I was asked by Judge Elrod. Now what an answer. So there is something else. It's weak, but it's there. And you told me that that wasn't enough and you weren't relying on it. Oh, no, no, no, Judge. I wouldn't rely on that. And I'd like to say I didn't even want to argue it today, but you asked. Council does the record to indicate the date on which each of the individuals that you are accusing now to have falsified something did fill out that form. Yes, Your Honor. The date is on it. The form is dated itself. Yes, all four. Is different dates for the two forms that you've referred to? No. In fact, they were sent on the same date. The one for Bachmann Pond was November 14, 2009, and the 3310 was filled out on the same date. And then Academy, they also filled out the same form on February 13, 2010. And then if you keep going through the record with the originals that you had, they faxed them to the law enforcement agencies on that same day to ATF, to the Sheriff's Department and to DPS. And that's what they have listed at the bottom. So it was all on the same date. And those are all available. What have been available to the jury in reviewing in the jury room, this case? Those various dates. Yes, correct

. Judge, it was a weak answer, but I was asked a question and I stick to the record. I'm not saying it's the best evidence we have. In fact, I believe it was a compound question and I didn't. I wasn't personally going to bring it up today, but I was asked by Judge Elrod. Now what an answer. So there is something else. It's weak, but it's there. And you told me that that wasn't enough and you weren't relying on it. Oh, no, no, no, Judge. I wouldn't rely on that. And I'd like to say I didn't even want to argue it today, but you asked. Council does the record to indicate the date on which each of the individuals that you are accusing now to have falsified something did fill out that form. Yes, Your Honor. The date is on it. The form is dated itself. Yes, all four. Is different dates for the two forms that you've referred to? No. In fact, they were sent on the same date. The one for Bachmann Pond was November 14, 2009, and the 3310 was filled out on the same date. And then Academy, they also filled out the same form on February 13, 2010. And then if you keep going through the record with the originals that you had, they faxed them to the law enforcement agencies on that same day to ATF, to the Sheriff's Department and to DPS. And that's what they have listed at the bottom. So it was all on the same date. And those are all available. What have been available to the jury in reviewing in the jury room, this case? Those various dates. Yes, correct. Yes, Your Honor. Even if you want to just consider the 44-73s, they are listed on the date of the transaction. It is listed on the 44-73 up at the top. And it's also listed on the second page where it says date transferred. So it is on just the 44-second. Now when were and how did the government learn that the information on the form was false? When the firearms were received by the grandmother in the Virgin Islands, ATF opened up the investigation. Special Agent Sandy Riley was assigned the case and from my understanding based on what I read in the record, he went back to, because they traced the firearms, he went back to the FFLs, pulled the 44-73s, because the 44-73s are kept. What was the lapse of time between the time somebody started checking and the date of the 44-43 or whatever? 44-73? I don't know, Judge. I didn't... Is that on the record? It is in the record. As far as the... It's in the record that the 44-73s were in the hands of ATF in the next way they traced the gun back to the gun delivery. I'd have to go back and review the record. I think that he said, when I say he, especially that Sandy Riley states at some point, and it may have been the second time he testified, if memories... He went to the FFLs and had to get the 44-73s, but I'd have to check the record and be sure that. Okay, I think we're headed to our... Judge, thank you. Thank you, Judge

. Yes, Your Honor. Even if you want to just consider the 44-73s, they are listed on the date of the transaction. It is listed on the 44-73 up at the top. And it's also listed on the second page where it says date transferred. So it is on just the 44-second. Now when were and how did the government learn that the information on the form was false? When the firearms were received by the grandmother in the Virgin Islands, ATF opened up the investigation. Special Agent Sandy Riley was assigned the case and from my understanding based on what I read in the record, he went back to, because they traced the firearms, he went back to the FFLs, pulled the 44-73s, because the 44-73s are kept. What was the lapse of time between the time somebody started checking and the date of the 44-43 or whatever? 44-73? I don't know, Judge. I didn't... Is that on the record? It is in the record. As far as the... It's in the record that the 44-73s were in the hands of ATF in the next way they traced the gun back to the gun delivery. I'd have to go back and review the record. I think that he said, when I say he, especially that Sandy Riley states at some point, and it may have been the second time he testified, if memories... He went to the FFLs and had to get the 44-73s, but I'd have to check the record and be sure that. Okay, I think we're headed to our... Judge, thank you. Thank you, Judge. Thank you. Okay, rebuttal. A couple of points, Judge. The arguments made that no FFL would lie on these forms. This whole case is about a lie on this form. And the document itself is like a clock that strikes 13. It cast out not only on itself, but on everything that happened beforehand. There's a... Government's proving there's a lie on this document. They want to pick and choose what's truthful and not truthful and not provide evidence to support those trust... Academy, a big dealer is not lying because they're reputable. Is that a reasonable inference? If an academy employee came and made that type of testimony, I would agree with that. But could people just know, well, I buy things at Academy, I'm not saying me, could people just say... They can't go outside the record judge. But is it reasonable to say, oh, I know Academy, they're a big company, they advertise in the paper every Sunday, people buy their football shirts there, they're not going to lie. I don't think that is reasonable. I don't think that that's a proper argument that any council could make to a jury. It would be outside the record. And it's not something that's based on.

. Thank you. Okay, rebuttal. A couple of points, Judge. The arguments made that no FFL would lie on these forms. This whole case is about a lie on this form. And the document itself is like a clock that strikes 13. It cast out not only on itself, but on everything that happened beforehand. There's a... Government's proving there's a lie on this document. They want to pick and choose what's truthful and not truthful and not provide evidence to support those trust... Academy, a big dealer is not lying because they're reputable. Is that a reasonable inference? If an academy employee came and made that type of testimony, I would agree with that. But could people just know, well, I buy things at Academy, I'm not saying me, could people just say... They can't go outside the record judge. But is it reasonable to say, oh, I know Academy, they're a big company, they advertise in the paper every Sunday, people buy their football shirts there, they're not going to lie. I don't think that is reasonable. I don't think that that's a proper argument that any council could make to a jury. It would be outside the record. And it's not something that's based on... Well, of course there was evidence that the persons who signed the form, the purchase are lies. There's no evidence that the business company, the business man, the soul, have done them right. There's no evidence that they didn't. There's no evidence that they made us to corroborate this statement in any way. There's no statement here, for example, the check box where the seller states that his license is valid on the date within the hand stamp. There's no expiration date to say that the license is valid on the date. The case that the government wants to hang its hat on is ransom. And in ransom, there was a federal supervisor who testified and two employees of the subject seller testified. Rancid in sides two additional cases. One is an eighth circuit case called Cody, where the supervisor of the Treasury Department and Firearms Section testified that the store was licensed at the time of the purchase and also BB a tenth circuit case where the manager of the Kmart and the manager of the pawn shop testified. So ransom has a temporal element and in those cases, each one of those cases, both ransom and the side of cases in ransom, employees came to court to testify. If this individual, this person here, had come to court to testify that he knows this is a federal license number belonging to Bachmann Pond, then that would be sufficient. If he also testified that on this date the license was valid, that would be sufficient. We don't have that in this case. Man, in your view of the record, do you remember whether there were evidence of these 4473 wearing a possession of the ACF and I was one of the ways to back to the data of the industry? Do you remember that? I know that they came to be in the possession of the ACF, but I don't know if that was getting ready for court for in preparation for the investigation. I don't remember the age of testifying, just in one of the ways they put it all together. I do remember him testifying, but I don't know whether he went out to the store to get the records or he had them in his own office somewhere. And I furthermore don't know whether the evidence before you, where that comes from, whether it comes from the store or the ACF agent. You weren't saying that there's a check box that's not checked. Were you? No, I'm saying that if there was a check box. Okay, you were with that with the hypothetical. There could be a check box for the date. There's not a check box for the date. That's not a required part of this document. And it's nothing

.. Well, of course there was evidence that the persons who signed the form, the purchase are lies. There's no evidence that the business company, the business man, the soul, have done them right. There's no evidence that they didn't. There's no evidence that they made us to corroborate this statement in any way. There's no statement here, for example, the check box where the seller states that his license is valid on the date within the hand stamp. There's no expiration date to say that the license is valid on the date. The case that the government wants to hang its hat on is ransom. And in ransom, there was a federal supervisor who testified and two employees of the subject seller testified. Rancid in sides two additional cases. One is an eighth circuit case called Cody, where the supervisor of the Treasury Department and Firearms Section testified that the store was licensed at the time of the purchase and also BB a tenth circuit case where the manager of the Kmart and the manager of the pawn shop testified. So ransom has a temporal element and in those cases, each one of those cases, both ransom and the side of cases in ransom, employees came to court to testify. If this individual, this person here, had come to court to testify that he knows this is a federal license number belonging to Bachmann Pond, then that would be sufficient. If he also testified that on this date the license was valid, that would be sufficient. We don't have that in this case. Man, in your view of the record, do you remember whether there were evidence of these 4473 wearing a possession of the ACF and I was one of the ways to back to the data of the industry? Do you remember that? I know that they came to be in the possession of the ACF, but I don't know if that was getting ready for court for in preparation for the investigation. I don't remember the age of testifying, just in one of the ways they put it all together. I do remember him testifying, but I don't know whether he went out to the store to get the records or he had them in his own office somewhere. And I furthermore don't know whether the evidence before you, where that comes from, whether it comes from the store or the ACF agent. You weren't saying that there's a check box that's not checked. Were you? No, I'm saying that if there was a check box. Okay, you were with that with the hypothetical. There could be a check box for the date. There's not a check box for the date. That's not a required part of this document. And it's nothing. And if it was there judge, then the jury could infer that the license was valid on that date. But there's nothing there for the jury to hold on to to make the conclusion. Well, the only thing you might have is that he required the date or actually went to the trouble of getting this form signed. Why didn't that raise an influence at the license or file that on that date? The dealer could have been simply wanting to make money just like the person who purchased this, you know, is being accused of a falsehood. This dealer who didn't come to court wasn't subject to cross-examination. Could have been making a false statement simply to make a buck. Here he is. He would have sent them then on to ACF. With respect to the Bachman pond, there's no evidence before you that that was sent on to ATF. That's government's exhibit seven. With respect to government's exhibit eight, the facts forms that Mr. that the U.S. Attorney mentioned are included in the file. One last thing, the court, the U.S. Well, the court asked about a reference to the press's testimony. I don't understand the government to be using that to support their argument, but it is at record on appeal five night. Okay. Thank you, Council. We ready to get it.

The United States Court of Appeals for the Fifth Circuit is now open according to law. God save the United States and the Son of the Record. Please see. Please. All right. Welcome to Fifth Circuit, ladies and gentlemen. We have two cases on the docket. And I think all of you understand our signals. They operate like crackling signals. As long as you have a green line to run and free. When the yellow line appeared, again the burnt green argument to a clone. And then when the red line appeared, it's finished your son of the stock. And our mind that would vote for a vote for you. We call it first case. You have to be read. And we hear first from Mr. Harris, for us. Harris. Did I already remind you? No, Judge. I tell people if you pretend the Rs are D's, get close to rolling the Rs. Okay. Let me ask you one thing, we're in there. Sure. I have here the original of the exhibits, 7 and 8, which you're proportionally what was submitted to the jury. And they have both the forms, 44, 73 and 33, 10 in the packet. Do you have anything to refute that this is what went to the jury? Judge, what I have are the records itself where references are made to governments exhibit 7 and 8. And then in referencing government exhibit 9, I do judge. I the answer is yes. I will tell you what it is. Okay. At the, on the record, at page 513, where the government has gone through and talked about governments exhibits 7 and 8 being 4 and 4 and 4 and 7 and 3, they then talk about governments exhibit 9. And the question from the prosecutor has explained to the ladies and gentlemen of the jury why there are additional or added paperwork in governments exhibit 9. Answer. The reason being is the federal firearms licensee has gone out of business and they're required once they go out of business to submit all documents with respect to firearms transactions to the ATF. And for the purposes of court, they submit or give to the requesting agent a certified copy. And this acts as the actual document. Question. So it's the 4473, like the other ones, referencing governments exhibit 7 and 8. But with a certified document because it comes from the ATF as opposed to from the actual federal firearms dealer because they've gone out of business. That's one instance, Judge. The other is the... I understand and I'm prepared to argue either way. I do think that there's a legitimate factual dispute, but in the end, I don't believe that the additional materials provide any weight to my arguments regarding sufficiency. Well, we're going to let these be 5 because they only phrase it before the three-wire observation of the jury. So we'll have the answer. Thank you, Judge. Are they in before us on appeal where they part of the pellet record? That's the big question, Judge. I don't doubt that governments exhibit 7 and 8 came into evidence. The question is in what form? And if we go to the record... But when they brought up here to us as part of the record excerpts, and are they part of the appellate record? No, they were not part of the appellate record when it was certified by the district. The whole thing in the record was a digital exchange copy. So we directed that the original be filed and that's what I had in front. There was no digital copy of the exhibits filed with the original certified record on appeal. Well, a lot of times the exhibits stay in the district court and we have to call them up. They just don't send everything up. But they were in the district court record. They were not, Judge. The district court released them to the parties. And so the parties, the U.S. Attorney's Office, has collected the documents you now have from their ATF agent or their government agent. They did not collect those documents from the court, from the court clerk, or from any court personnel. Okay, go ahead with your argument. Okay. Council, let me ask one question. And what you just explained a while ago, I got the idea that one or the other of these FFLs, Federal Fire Arm License Seeds, went out of business. Is that correct? I believe that's true with respect to government's exhibit nine. Those are not, that's not an issue at exhibit here today. The exhibits at issue here today are government's exhibits seven and eight. Okay, so is it, is the record clear that the FFLs mentioned in those documents did not go out of business. They were in business at the time that the purported license form was filled out. I believe that's true, but I'm not certain. Well, you're not trying to answer. No, I was not good. All right, thank you. Does the government need to prove that Bachman, Pawn and Academy Sports were FFLs, or does the government need only prove that there was an agreement to make a false statement to some license dealer? For the purposes of subject matter jurisdiction, whether you're looking at the conspiracy count or the substantive counts, there has to be a, they have to defraud a licensed dealer or else there's no federal jurisdiction. Right, I'm asking, do they have to, is there, do they have to be some evidence that they were trying to defraud a licensed dealer, or do they have to have evidence that they were trying to defraud Bachman, Pawn and Academy Sports, and that that was a licensed dealer. That's two different things. Which is it that the government has to prove? The latter judges, what I believe. Why? Because if Bachman, Pawn or Academy were not licensed dealers, then this court would not have jurisdiction. For example, if they were private entities and Mr. Cress and Mr. Reed decided to defraud the private entity, who had no duty to be a federal licensee, there'd be no federal crime. Well, any staying operations, you know, where the accused agrees to sell dealt that doesn't exist, that's enough to make out the conspiracy challenge. It may be for an 846 conspiracy, but the 371 conspiracy requires that the object of the conspiracy be a federal crime. There is a similar case with respect to banks and proof of the FDIC insurance. The name escapes me now, but this court in analyzing the conspiracy issue, and whether or not the simply the intent to defraud a federally insured bank was sufficient, said no that the bank has to actually be federally insured, or else we don't have... No, Judge, I came across it within the last two weeks and I haven't... You have a couple of months, you have a second chance. I will, Judge. That's not in your brief, USV Schultz, which it has to be an FDIC insured brief bank. I think that's in your reply brief. Are you talking about a different case? There is a different case, Judge. But that case also says that, doesn't it? And it's in your brief. I believe so. That's me. That proof that something is FDIC insured is a jurisdictional element, and by analogy, you're arguing that proof that their federally licensed dealer is a jurisdictional element. That's true. That is true. That's your argument before us today. That's my... The other thing that I think is very important is there has to be proof that it was a licensed dealer at the time of the subject sale. And I think that's a significant importance for this reason. Take the Form 4473s and the other documents admitted into evidence. At most, you can infer that the clerk who didn't come to court, didn't testify, is a named unknown person, says that Bachmann-Pan has that particular license number. If we look at page 3 on government's exhibits 7 and 8, this whole case is about this particular issue. Whether or not this federal license number is sufficient to carry the government's burden. At most, this number is simply what this person who didn't come to court and testify, the transfer seller's name, is purporting as the license number. Well, you've got the issue that somebody who sells a gun wouldn't be collecting these forms unless he was a dealer and had to collect them under the regulations. Couldn't the jurors consider that? They could, Judge. He might out of an abundance of caution. But what these forms don't do is these forms don't tell you or anybody in the juror that this particular license was valid on the date of transfer. For some reason, they were right and then for some reason it was valid and then maybe to be up to the defendant to show that it had expired. Let's take a Notary stamp, for example, Judge. Notary stamp has on its face very often or the Notary is required to put into the document that her commission expires on a particular date or time or that his does. If I get pulled over by a traffic cop and he asks to see my license, if I'm one day beyond the date that it expires, that license is not valid. There is nothing in the record, absolutely zero evidence, to show that these particular license dealers were licensed at the time of the subject sale. It's an issue that this court addressed in the 70s in Frazier, where this court said, actually it's the concurrence in Frazier from Chief Justice Brown, conclusively, conclusory oral testimony of the kind we find adequate is just barely so. And in a number of situations, it might not suffice at all. In that case, a government agent took the stand to testify that the seller was a licensed firearms dealer. And no agent testified to that in this case. Correct, Judge. But could the jury infer from the fact that the transactions actually occurred that ATF would not have approved of the transactions if the licenses were not current? So could that create an inference that the licenses were current? The fact that the transactions themselves went through. You need additional information, I believe, to make that inference. For example, what information was transmitted to ATF beyond the information of the purchaser? Was the license number actually required to be transferred to ATF? There's no testimony about that at all. And as far as I understand, the only thing that ATF is checking is whether the seller or the purchaser is qualified to purchase a gun. After Abramsky, the pronunciation may not be correct. Do you concede that it is in crime for a straw purchaser to falsely represent to an FFL that is a true briar? That's been decided. It was not decided at the time you filed your brief. But you concede that that is indeed a crime as the Supreme Court is articulated. By five to four decision, it is a crime. Well, five to four counts in this world. It's a crime. And so what was the lapse of time between the date that somebody filled out the form seeking to purchase the firearm in question? And the testimony in this case relative to license? I don't know, but I believe there was no testimony with respect to the license. The only evidence is the documentary evidence. There's no oral testimony that the license was valid at the time. Are you telling me that no individual for either of the lead to the crime? The fact that the Supreme Court has issued a firearm dealers came to court and testified regarding the form that was issued to that firearm dealer. That's correct, Judge. No employee? No proprietor? No agent? Came to court and testified that these dealers were licensed on this date. Who had the form that you are referring to as the one that the government says is sufficient? Where did that come from? My understanding is these were collected from the individual sellers. We have a license number on the phone. We have a license number. It's not in the same format as the suggested format by the ATF form. But we have a number. We have a number. And I think we have a number of the bind cases where we've heard that if you put the charter in, the question of the bind case is whether the bind was chartered. And if you put that bind charter in, that's enough. Now how do you know from that that is not expired? Well there's also an A case where the bank certificate, a copy of it, was placed into evidence. But it reflected a date seven years prior to the alleged fraudulent act. And of course, I don't have an expiration date. I mean the charter is just charter. And if there's some malfeasance or something is taken away, but just with the barricard, you don't know whether that's expired or none of them. There's nothing to that a jury could use to infer either that it was valid. But aren't there plenty of cases where we've heard that's enough in the bank cases, just the charter itself? There's the Grady Davis case that happened last year where different banks, the charter reflected a different bank. We don't have a license that we can point to to say yes. Look, Bachmann-Pahn actually corresponds to this license number that's reported and placed here by some unknown named person. Well, we've got a strange co-enternum so that a guy that sells a license is going to trouble to get all these forms filled out and submit them to the ATF. The quality control measure, I hope, is higher than a strange coincidence when it comes to the sufficiency of the evidence, Judge. You know, it doesn't take a whole lot because the jury's gone. I mean, you just need to raise an inference and then they can draw a conclusion from it. You don't have to show a conclusion that. Well, this court is really the last quality control measure. We recognize that juries make mistakes, that trial courts make mistakes. And the whole point of sufficiency review is to go back and see is the quality of freedom that we expect in this country being met by the evidence that's being introduced to trial. I don't know that any company would submit to $9,9 billion on this kind of evidence. And yet, a man is in jail for almost 15 years on this kind of evidence. I'm not going to talk about his character or anything like that, but it's just the quality of the evidence. Yeah. Thank you. Thank you. Do you have time after the battle? Mr. Barata. Mr. Barata. Good morning. My name is Ted in Pirato and I represent the United States. I'm a trial attorney here in Houston and I'm really honored to be here today, Barata, before you all. Councilor Wooden, please speak directly into the mic. Yes, Your Honor. Move it up. I'll pick it up. That's good. Okay. Clear that the two sides. Let me ask you that. My question here is sufficient to the evidence approved that these two companies were licensed in the firearm dealers. Is there any evidence in the record of them these four that tended to show that? The co-defendant testified and said that the company that he purchased the firearm for was in FFL, but the strongest evidence are the 44-73s and the 33-10s. The co-defendant testified the Bachman Pond in Academy Sports was in FFL. He testified that I believe he bought it from Bachman Pond. He testified that he purchased it from an FFL. That was a question. Okay. Where in the record do I go for those citations? It was at, well, it creases testimony when he's being under undirect examination. I don't have the page number. Okay. Because you're saying that's on its face enough. No, no, no, no. The judge asked, Judge Davis asked me if there was other evidence. Right. I'm asking if there are enough testimony to support it. Apart from these exhibits, if these exhibits don't do it, is there testimony in the record that would satisfy your burden here? I think the forms are sufficient, Your Honor. If putting the forms to one side is there testimony in the record that is sufficient? No. So there's the 44-73s that were admitted into evidence from Special Agent Sandy Riley. He went to, to answer, to Demostra's question, he went to the pawn shop and Academy because that's where they keep the 44-73s. And the 33-10s are actually facts to three different law enforcement agencies. They're facts to ATF, DPS, and the Sheriff's Office. And that's shown in government's exhibit eight, the one for a plan. Where in the record does it say that seven and eight were admitted? With Mr. Special Agent Riley's testimony. That they were, in fact, admitted into evidence. Yes, Your Honor. Special Agent Riley on his direct sentence. But these are the crucial things that make your case, then why were not they included with the appellate record that you sent up? Why were these not in the record excerpts? If this is your whole case depends upon this, why was this not part of the record excerpts? They were sent up in the supplemental, Your Honor. Why weren't they sent up originally if the whole case hinges on these documents? It's the only document that should be included. I mean, it's the whole case depends on it. Judge, I can't answer that question. I don't know. I didn't write the brief. However, Judge, they weren't admitted into the trial. Did you, were you a trial? No, Your Honor. I was not trial counsel. You were a trial attorney, but I was not trial counsel. I was not trial counsel. For this case. No, Your Honor. Okay. Did these documents come from the trial court or did these documents come from the DOJs files or the agents files or someone associated with the government? I called Special Agent Sandy Riley and I asked for the trial exhibit seven and eight which he had preserved in his office because he's required to keep them. He hand-delivered them to me and they are the ones that Judge Davis has this morning. How do we know that these are what was admitted in the trial? Because I looked in the trial notebooks, Your Honor. I looked in the trial notebooks that were admitted to trial. I spoke to trial counsel. I asked them and the trial exhibits were part of the record. And they're part. For the jury in the box. And did they hear and see all of this? I'm sorry, Your Honor. I didn't hear you. Was the jury in the box when they, when you were all of these transactions that you're talking about occurred? Were they in the box? Did the jury hear any of that? That the transaction that they went and purchased these firearms? No, that the exhibits were admitted. Yes, they were in the box when Special Agent Sandy Riley testified, government's exhibits seven and eight were admitted through special. But we don't know that these are seven and eight because these students come from the court is seven and eight. These came from the officer, the agent after the fact. Judge, 4473 is contained in the 3310s. In fact, I did fire on him. Okay, so what does that mean? You were saying it somewhere else in the record? No. What is saying? They are part of a 4473 packet. You can't have a 3310 without a 4473. I've never even heard of 3310s before this case. There are multiple sales records that are contained in the four. But I'm saying, how do we know that the seven and eight were the accurate, seven and eight? Because I think in the trial record, Your Honor, and they're in the trial notebooks. And I spoke to COVID-19. Let me just ask you to. And they're in the notebook. Let me just ask you to tell us, part of this file will be proceeding. I mean, ordinary, one of the exhibit interviews is the court that's where it stays in that record. And why was that not followed here? From what I understand, I spoke to the case coordinator. They can't keep the trial exhibits. So they turn them back over to trial counsel who keeps them. However, the original 4473s cannot have to be kept by the ATF. So government's exhibit, seven and eight were returned to the ATF. What stage in the trial record date? I'm sorry. Is your copy of the stage in the trial record? Are you thinking of the government exhibits? No. From what I understand, it's taken back and held by the state of the trial prosecutors. Counsel. Yes, Your Honor. When a firearm dealer gets a license, does he get a piece of paper that he can hold and say, here is my license? I don't believe that's in the record. I can speak for personal experience of doing these cases. Yes, they receive a license, which gives them their FFL number, which is what the jury saw in this case. They saw the 4473s. If you don't want to consider the 3310s, fine. Don't consider them. We have enough evidence with just the 4473s. The 4473s contain the name, the stamp of the FFL and the FFL license and the data of the transaction. They were held by the companies and the jury can reasonably infer from that. This is a form, this isn't just some receipt that's filled out. This is a government form that's required by statute and federal regulation that they keep. And this is what the jury can reasonably infer, like Judge Davis said. They can reasonably infer that on the data, these transactions, they had valid license. For the FFLs to fill this out and put up license, that's not valid. They can get in a lot of trouble for that. They can be brought up on perjury charges or some type of federal prosecution. It's very explicit in the 4473, what they're required to do. Are you familiar with a series of bank cases where we've repeatedly chastised the government for not putting in a witness on to make the element that's the subject matter jurisdiction element and that we said, oh, it's close to the line here. In fact, I believe last year, we rejected one because we've warned so many times and they didn't put on a witness to do that. Do you agree that in this, so you're shaking even, yes? On the other side, I am. You're aware of that line of cases. And you agree that it's analogous to this requirement that you would have to put on that they were a license fire arm dealer, just like you have to put on that it's a valid bank. No, the license is not required. Case, invalid and Frazier says you don't have to produce a license. Right, but did you have to put on some evidence that they were a proper FF. FF, and we did judge, it's right here. But wouldn't you want to use belt and suspenders to put on a DRA-TF agent to say, and they were a valid FF at the time? And wouldn't you want to, in a good, this was not done according to the best standards, was it? Would you can see that? Judge, hindsight's 2020 after every one of my trials, I go back and I look at the record. But this is the case, I could have done things. But this is the case, I could have done things. I think what we're looking at today is whether it's sufficient and I think it's, if we could go back in time, I'm sure the prosecutors would have done it differently. What case says that this is sufficient? Is there anything in the record that says other instances in which either one of these to FFLs did exactly what you said they did. In this case, that is, they issued a notice to the agencies pursuant to their responsibility as being a FFL licensee. Did they, they, is this a single case transaction or is this an instance of a whole bunch of similar transactions that these two licensees did over a period of time? I'm not sure what you're asking, you're all right. I think it's a single instance what we're talking about. I'm not really clear, so I don't. You don't have a pattern with this, with this shot that these people, it's one incident, right? In this case? Yes. Yes, they purchased one from two far, three farms from Focman Pond and two or three from Academy, sporting units. And neither Focman Pond or Academy had done any other issuance of licensees. In the general time, these transactions occurred. Not that there's any evidence. I could answer that because I don't believe it's in the record at trial. They just focused on these transactions. Well, when you're asking the jury to infer, what all are you suggesting that the jury draw an inference from? The one occasion on this case when the number on the farm is what you say is their license number. Yes, I'm asking them to infer from government's exhibit seven and eight that the information that's contained in there can, it's sufficient to establish that both of these FFL's were licensed on the date of the transactions because of the case. Because what? Tell me that. Well, again, your honor, they are government forms. They're required to be filled out by statute and regulation. They're signed by the seller. They're signed by the buyer. They're not just receipts. They're required to fill these out to fill them out improperly or they could get in trouble for that. They could be prosecuted federally for that. They could be charged with perjury. This isn't just any other form. It also, it has the name. It has the stamp. It has their light full license number. A jury could reason. But who knows that the number on the form is their license number. As I understand it, there's nothing on the form that says that. Well, it says federal firearms license number right here and underneath that it's stamped the license number. Yeah, I just have to read the form and it identifies what it is. What do you say to counsels arguing like that? Nobody could know where that license was still in effect. Why didn't they raise that at the trial court judge? That was something that should have been. Well, in your jurisdiction, I mean, you got a jurisdictional issue. You're going to have to raise it right. I don't know if this is jurisdictional judge. This is like the Schultz case. Well, a couple other circuits that say it is. That's the same it is for the time being. Okay, so your question is, how could a jury know whether or not these licenses were in effect on the day of the sale? They've got a license number and let's say they could infer that in one time, this would have a license. How do they know it was valid on the day of the sale? I think that they have to reasonably infer that a licensed FFL that's in good standing would not falsify a form. I think that's a reasonable inference under both standards before the court manifest miscarriage of justice and the Jackson standard. I think it would be sufficient. Who would have falsified the form if they're not in good, if they're not in current on their FFL? Pond shops that are not as reputable as Academy and Bachman Pond aren't diligent in their records. I mean, it happens all the time. But you don't have to be falsifying. You could just let it lapsed. Judge, this is Academy sporting goods. They deal in full. Okay. I think the jury could take that in consideration as well. Every juror sitting in the pan. What about the pawn shop? I'm not familiar with Bachman Pond, you know, but I think from Academy, everybody's shop there. I was there yesterday. I mean, I went into the gun counter and they're selling guns left and right. I mean, they're filling out these forms. I think that a jury can reasonably infer from the form and their own personal experience, which they're allowed to bring with them. They can infer that their license is still good. Let's go into this jurisdictional point. Is it the government's position at this stage that it is not jurisdiction and if so, what is your best authority for that? I don't have it. It's not cited on the record and we didn't put it in our brief. That's just going through some. When I was reviewing the Schultz case, Schultz dealt with the FDIC and when I was doing my own research, I don't have a case, Your Honor. And if you'd like me to, I could just... Well, I'm just curious. Are you the government taking the position? You list the government that in the FIT circuit, it is not jurisdictional that this requirement is not jurisdictional. That's a big deal. And so I just want to know whether it is or not. Based on what I read, I thought that Interstate Commerce was inferred that this was not jurisdictional question that it was inferred because it's the interest state commerce, which would then affect Interstate Commerce. So you're asking us to create a circuit split here? Is that correct? Because no circuit has yet held that way. Am I correct? Judge, I'd have to look into that more before I answer it. I don't feel comfortable doing that. It wasn't in the brief. So you're not relying on the jurisdictional argument today? No, I'm relying on whether this was sufficient or not. Okay, sufficiency is the whole thing. Yes. You're not saying it's not jurisdictional. No, no, no, no. That's a different question and I want to make clear. I think that you have your own view about it, but you're not telling me as the government that it's not jurisdictional. No, I'm not. I'm saying, Judge, that this is sufficient. That these 4473s, that a reasonable jury could look at them and infer that both Bachman Pond and Academy were licensed FFLs on the date of the transactions. You mentioned the Code of Defense testimony that he bought them from FFL. So in the indication, he had any knowledge about that. Judge, it was a weak answer, but I was asked a question and I stick to the record. I'm not saying it's the best evidence we have. In fact, I believe it was a compound question and I didn't. I wasn't personally going to bring it up today, but I was asked by Judge Elrod. Now what an answer. So there is something else. It's weak, but it's there. And you told me that that wasn't enough and you weren't relying on it. Oh, no, no, no, Judge. I wouldn't rely on that. And I'd like to say I didn't even want to argue it today, but you asked. Council does the record to indicate the date on which each of the individuals that you are accusing now to have falsified something did fill out that form. Yes, Your Honor. The date is on it. The form is dated itself. Yes, all four. Is different dates for the two forms that you've referred to? No. In fact, they were sent on the same date. The one for Bachmann Pond was November 14, 2009, and the 3310 was filled out on the same date. And then Academy, they also filled out the same form on February 13, 2010. And then if you keep going through the record with the originals that you had, they faxed them to the law enforcement agencies on that same day to ATF, to the Sheriff's Department and to DPS. And that's what they have listed at the bottom. So it was all on the same date. And those are all available. What have been available to the jury in reviewing in the jury room, this case? Those various dates. Yes, correct. Yes, Your Honor. Even if you want to just consider the 44-73s, they are listed on the date of the transaction. It is listed on the 44-73 up at the top. And it's also listed on the second page where it says date transferred. So it is on just the 44-second. Now when were and how did the government learn that the information on the form was false? When the firearms were received by the grandmother in the Virgin Islands, ATF opened up the investigation. Special Agent Sandy Riley was assigned the case and from my understanding based on what I read in the record, he went back to, because they traced the firearms, he went back to the FFLs, pulled the 44-73s, because the 44-73s are kept. What was the lapse of time between the time somebody started checking and the date of the 44-43 or whatever? 44-73? I don't know, Judge. I didn't... Is that on the record? It is in the record. As far as the... It's in the record that the 44-73s were in the hands of ATF in the next way they traced the gun back to the gun delivery. I'd have to go back and review the record. I think that he said, when I say he, especially that Sandy Riley states at some point, and it may have been the second time he testified, if memories... He went to the FFLs and had to get the 44-73s, but I'd have to check the record and be sure that. Okay, I think we're headed to our... Judge, thank you. Thank you, Judge. Thank you. Okay, rebuttal. A couple of points, Judge. The arguments made that no FFL would lie on these forms. This whole case is about a lie on this form. And the document itself is like a clock that strikes 13. It cast out not only on itself, but on everything that happened beforehand. There's a... Government's proving there's a lie on this document. They want to pick and choose what's truthful and not truthful and not provide evidence to support those trust... Academy, a big dealer is not lying because they're reputable. Is that a reasonable inference? If an academy employee came and made that type of testimony, I would agree with that. But could people just know, well, I buy things at Academy, I'm not saying me, could people just say... They can't go outside the record judge. But is it reasonable to say, oh, I know Academy, they're a big company, they advertise in the paper every Sunday, people buy their football shirts there, they're not going to lie. I don't think that is reasonable. I don't think that that's a proper argument that any council could make to a jury. It would be outside the record. And it's not something that's based on... Well, of course there was evidence that the persons who signed the form, the purchase are lies. There's no evidence that the business company, the business man, the soul, have done them right. There's no evidence that they didn't. There's no evidence that they made us to corroborate this statement in any way. There's no statement here, for example, the check box where the seller states that his license is valid on the date within the hand stamp. There's no expiration date to say that the license is valid on the date. The case that the government wants to hang its hat on is ransom. And in ransom, there was a federal supervisor who testified and two employees of the subject seller testified. Rancid in sides two additional cases. One is an eighth circuit case called Cody, where the supervisor of the Treasury Department and Firearms Section testified that the store was licensed at the time of the purchase and also BB a tenth circuit case where the manager of the Kmart and the manager of the pawn shop testified. So ransom has a temporal element and in those cases, each one of those cases, both ransom and the side of cases in ransom, employees came to court to testify. If this individual, this person here, had come to court to testify that he knows this is a federal license number belonging to Bachmann Pond, then that would be sufficient. If he also testified that on this date the license was valid, that would be sufficient. We don't have that in this case. Man, in your view of the record, do you remember whether there were evidence of these 4473 wearing a possession of the ACF and I was one of the ways to back to the data of the industry? Do you remember that? I know that they came to be in the possession of the ACF, but I don't know if that was getting ready for court for in preparation for the investigation. I don't remember the age of testifying, just in one of the ways they put it all together. I do remember him testifying, but I don't know whether he went out to the store to get the records or he had them in his own office somewhere. And I furthermore don't know whether the evidence before you, where that comes from, whether it comes from the store or the ACF agent. You weren't saying that there's a check box that's not checked. Were you? No, I'm saying that if there was a check box. Okay, you were with that with the hypothetical. There could be a check box for the date. There's not a check box for the date. That's not a required part of this document. And it's nothing. And if it was there judge, then the jury could infer that the license was valid on that date. But there's nothing there for the jury to hold on to to make the conclusion. Well, the only thing you might have is that he required the date or actually went to the trouble of getting this form signed. Why didn't that raise an influence at the license or file that on that date? The dealer could have been simply wanting to make money just like the person who purchased this, you know, is being accused of a falsehood. This dealer who didn't come to court wasn't subject to cross-examination. Could have been making a false statement simply to make a buck. Here he is. He would have sent them then on to ACF. With respect to the Bachman pond, there's no evidence before you that that was sent on to ATF. That's government's exhibit seven. With respect to government's exhibit eight, the facts forms that Mr. that the U.S. Attorney mentioned are included in the file. One last thing, the court, the U.S. Well, the court asked about a reference to the press's testimony. I don't understand the government to be using that to support their argument, but it is at record on appeal five night. Okay. Thank you, Council. We ready to get it