Good morning. Good morning Judge Garth. Good morning Judge Garth. Good to be with you. Good to be with you. Judge Garth is joining us as you can see
. The audiovisual and the medics. We have one matter listed this morning that being United States of America versus the Benjamin. Is it Gannett or Gannett? It's Gannett, your honor. Thank you, Your Honor. Good morning and may it please the court
. My name is Sarah Gannett and I represent the appellant Nathaniel Benjamin in this matter. With the court's permission I would request three minutes for a but all. Thank you. I propose to address two of the four issues on this appeal this morning. The insufficiency of the evidence to support the Gannett and drug convictions and the erroneous admission of the evidence of Mr
. Benjamin's parole status. I would like to begin with the sufficiency of the evidence on the drug convictions. Mr. Benjamin's 10 year sentence for firing the Gannett the shooting range was effectively doubled by the drug convictions which were based on the marijuana and crack cocaine that was found in a home he did not own hidden in the ceiling of a common room to which any number of people had access and which witnesses testified was used by many. Yeah, but he did have the he had his stereo equipment there
. It was adjacent to where he did his job. You're working on the car's an old isn't that enough. It's not enough for this reason. There were all sorts of materials found in that basement that were associated with all sorts of people. There were two or three gaming tables
. There were pool tables. There was a food ball table. There was laundry in the basement. There were teenagers who came in and out of that basement on a regular basis who hung out there in the evening. I'm sorry
. The ledger the ledger. I think the ledger is the only piece of evidence that the government can argue would direct the time Mr. Benjamin to the drugs. What about the nitrile gloves? Nitrile gloves weren't they found in Mr. Benjamin's car? Well, so if I could I'd like to address the ledger and then the gloves each separately
. I certainly you're permitted to do that but all together and then together. I think it is important to look at them separately and then together because I think if you break it down separately what you end up with is individually sort of ambiguous pieces of evidence which together could be. The skills of the prism of the standard of review here which is kind of a high held decline. It is a high held decline but the standard is that there must be evidence to support the verdict on each element beyond a reasonable doubt. So it is it is still a standard that requires substantial evidence and it requires evidence beyond speculation and surmise and it requires a decisive nexus between the defendant and the evidence and that's I think where the government's case crumbles here
. So starting with the supposed ledger which actually was just a memo pad and I want to begin here before we actually discuss the ledger by correcting a misstatement in the reply brief. Page five at footnote five I said that the district court sustained an objection to the eight ball testimony. The district court sustained a number of objections to the testimony about the ledger but the eight ball testimony actually went unobjective to. So I want to make sure that that is clear. However there were numerous objections sustained to the ledger testimony and the reason was that the district court found much of that testimony to be speculative and here's why the ledger basically was a small note
. A memo pad and it had some slips of paper and what the memo pad contained was all kinds of information all kinds of notes including notes about cars notes about Mr. Benjamin's cell phone job and it was undisputed that he repaired cars and that he had a legitimate job selling cell phone service plans and it contained phone numbers. It contained names and it contained all sorts of notations about with numbers. And the testimony about the fact that it was a drug ledger was was very conclusive that the agent said I see and I see a word I see a number I conclude that that refers to drugs but the eight ball testimony for example. There's nothing improper about that as being opinion testimony
. There's nothing improper about it. It was evidence that the jury could properly consider. It was but as the district court noted it was speculative at best and when it was surrounded by all of this record evidence about Mr. Benjamin's legitimate activities it was not the kind of solid evidence that establishes the decisive nexus of dominion and control which is what's required under this court's case law. Yes Judge. Ms. Kennedy. I want to know what relief you are seeking here the primary relief that you're seeking is it that all of the convictions including the one that he does not dispute on having a weapon that all of them should be vacated. That some of them should be or that what you want is a recent. Well I think that what we've requested is we have not challenged except with respect to the interstate commerce claim we have not challenged the conviction for firing the gun at the shooting range
. Ms. Kennedy. I want to know what relief you are seeking here the primary relief that you're seeking is it that all of the convictions including the one that he does not dispute on having a weapon that all of them should be vacated. That some of them should be or that what you want is a recent. Well I think that what we've requested is we have not challenged except with respect to the interstate commerce claim we have not challenged the conviction for firing the gun at the shooting range. We have challenged the other conviction for the gun so that conviction stands that conviction would stand yes your honor and the other conviction for firing the gun and the drug convictions would be vacated. That's what you would like that's what we would like. I'm glad Judge Garth asked that question because I may have missed something at the very beginning of your argument but I didn't hear you speak to the merger question which is one of the major issues. I believe in this case and this court has not specifically spoken back in the past. That's correct although I think that this court's prior case law about 1202 which was the predecessor statute indicates what the right result should be on the merger issue and this court's case law regarding merger of convictions generally speaks to
. We have challenged the other conviction for the gun so that conviction stands that conviction would stand yes your honor and the other conviction for firing the gun and the drug convictions would be vacated. That's what you would like that's what we would like. I'm glad Judge Garth asked that question because I may have missed something at the very beginning of your argument but I didn't hear you speak to the merger question which is one of the major issues. I believe in this case and this court has not specifically spoken back in the past. That's correct although I think that this court's prior case law about 1202 which was the predecessor statute indicates what the right result should be on the merger issue and this court's case law regarding merger of convictions generally speaks to. I'm speaking only for myself that happens to be my view but it still remains an open question and I'm going to be interested to hear from the government because I they may have foreshadowed that in the concession they made it page 31 of the red ring but I do want to hear the position. I'd like to address Judge Smith your one final point regarding the ledger and then your question about the gloves if I might miss a question. If we move just and about the if we agree with with with the other circuits have decided this and agree with your argument that about the merger there we don't need to be in this do we. I think it does need to be remanded I think this this court's case law on merger is consistent that the only thing that is a plays that hundred that hundred twenty dollars special assessment. There is a hundred dollar special assessment there is a supervised release term and and the concurrent sentence but as this court said in the recent case Lewis where the court was looking at the violation of a statute while the defendant was on pretrial release a district court may also determine that if a conviction is vacated and they wish to give a different sentence because there are now three convictions instead of four convictions
. I'm speaking only for myself that happens to be my view but it still remains an open question and I'm going to be interested to hear from the government because I they may have foreshadowed that in the concession they made it page 31 of the red ring but I do want to hear the position. I'd like to address Judge Smith your one final point regarding the ledger and then your question about the gloves if I might miss a question. If we move just and about the if we agree with with with the other circuits have decided this and agree with your argument that about the merger there we don't need to be in this do we. I think it does need to be remanded I think this this court's case law on merger is consistent that the only thing that is a plays that hundred that hundred twenty dollars special assessment. There is a hundred dollar special assessment there is a supervised release term and and the concurrent sentence but as this court said in the recent case Lewis where the court was looking at the violation of a statute while the defendant was on pretrial release a district court may also determine that if a conviction is vacated and they wish to give a different sentence because there are now three convictions instead of four convictions. And this court should give the district court the opportunity to assess the case three rather than four convictions. Ms. Ganon I'm glad that Judge Shigerra's brought to your attention what the government is evidently conceded that the hundred dollar assessment may be the only difference which would not require a remand and you say that a remand is necessary. Why I think a remand is necessary because first the district court will need to enter a new judgment and secondly because the district court should have the opportunity to consider the appropriate sentence given that there would now only be three convictions instead of four convictions and the district court may in its discretion which to enter a different sentence than the sentence that was originally imposed given that there are now only three convictions and not four. It may not wish to do that but that should be a decision that's left to the sound discretion of the district court
. And this court should give the district court the opportunity to assess the case three rather than four convictions. Ms. Ganon I'm glad that Judge Shigerra's brought to your attention what the government is evidently conceded that the hundred dollar assessment may be the only difference which would not require a remand and you say that a remand is necessary. Why I think a remand is necessary because first the district court will need to enter a new judgment and secondly because the district court should have the opportunity to consider the appropriate sentence given that there would now only be three convictions instead of four convictions and the district court may in its discretion which to enter a different sentence than the sentence that was originally imposed given that there are now only three convictions and not four. It may not wish to do that but that should be a decision that's left to the sound discretion of the district court. Bottom line you would like the district court to look at this if there were a remand and all the convictions stood saved for the one felon and possession charge to consider that there was simply a single continuing possession as opposed to two discrete possession. That's correct. I mean arguably the defense defense council could could make some equitable 3553 arguments that three convictions is less than four that it shows less kind of criminal intent to possess a gun by one continuous possession than two separate times and there are there are reasons the judge might want to create a different type of sentence than the one that was issued originally with four. Well, Miss Gallen the district court judge did not assess your client with a penalty because of the having a gun in connection with drugs was having a gun in connection with being a prior felon isn't that so that's correct. That's correct but the 35 what happens what happens on remand if he has a different view of the possession of a gun with whatever evidence there is of the drug deal
. Bottom line you would like the district court to look at this if there were a remand and all the convictions stood saved for the one felon and possession charge to consider that there was simply a single continuing possession as opposed to two discrete possession. That's correct. I mean arguably the defense defense council could could make some equitable 3553 arguments that three convictions is less than four that it shows less kind of criminal intent to possess a gun by one continuous possession than two separate times and there are there are reasons the judge might want to create a different type of sentence than the one that was issued originally with four. Well, Miss Gallen the district court judge did not assess your client with a penalty because of the having a gun in connection with drugs was having a gun in connection with being a prior felon isn't that so that's correct. That's correct but the 35 what happens what happens on remand if he has a different view of the possession of a gun with whatever evidence there is of the drug deal. Well, so there's certainly always a risk when the defendant requests to remand for resentencing the judge could look at the resentencing either way but our position would be on resentencing that three convictions is less than four and that the judge should consider a downwardly adjusting the sentence. Thank you. With respect to the ledger I wanted to add one point which is that even the expert in addressing the ledger said that he would not rely on the ledger alone in forming his opinion he said he would also need to rely on other facts including the possession of the gun which it's our position was solely possessed by Mrs. Spree as evidenced by her ownership and her statements that she kept it on her at all times which the government stated in closing argument they found to be quote extremely honest by the presence of the dog for which there was testimony he was the family pet and then by the gloves which is an advertence to the defendant's parole status and so if even the expert has to advert to the parole status in order to come to his opinion I think that demonstrates how weak the evidence is overall there's a cloud of suspicion in this case about Mr. Benjamin certainly but it's not evidence beyond a reasonable doubt until it's layered with his parole status and it's only the parole status
. Well, so there's certainly always a risk when the defendant requests to remand for resentencing the judge could look at the resentencing either way but our position would be on resentencing that three convictions is less than four and that the judge should consider a downwardly adjusting the sentence. Thank you. With respect to the ledger I wanted to add one point which is that even the expert in addressing the ledger said that he would not rely on the ledger alone in forming his opinion he said he would also need to rely on other facts including the possession of the gun which it's our position was solely possessed by Mrs. Spree as evidenced by her ownership and her statements that she kept it on her at all times which the government stated in closing argument they found to be quote extremely honest by the presence of the dog for which there was testimony he was the family pet and then by the gloves which is an advertence to the defendant's parole status and so if even the expert has to advert to the parole status in order to come to his opinion I think that demonstrates how weak the evidence is overall there's a cloud of suspicion in this case about Mr. Benjamin certainly but it's not evidence beyond a reasonable doubt until it's layered with his parole status and it's only the parole status. The parole status was never objective it was it was ejected to prior to trial there was a 403 objection made prior to trial and emotion and lemonade which was overruled by the court. And then there were repeated references during the course of trial to the parole status many of which were references the defense counsel and I see it. Defense counsel defense counsel did not introduce the parole status during trial but once it was introduced defense counsel did try to work with it that that is conceitedly true but the way that it was used at trial was to suggest that because he was on parole he had a propensity to be the drug dealer to be the drug owner in that house he had a propensity to have used these drugs not as an use these gloves for instance not as an auto mechanic not to clean up the house but to package drugs interestingly I don't think there was ever a cautionary instruction there was not nor was there one requested by defense there was not judge Garth anything further is got it nothing just thank you all right thank you will have you back on the bottle Mr. Hanson Mr. Hanson could we start out on the merger question is the government has indicated in its brief that the government assumes without a decision of this court so holding that the crime of possession of a firearm by conduct the shaman as a continuing facts that this court if it hasn't already done so should adopt the position of I believe the sixth and the ninth circuits several of our sister several certain 11 6 yeah 9th that that that should be the applicable principle yes I think that's the appropriate place to start oral argument Judge Garth and Judge Sigeras I'm Eric Hanson I represent the United States as happily Judd Smith it you are correct our view is that 922 G1 felon in possession is a continuing offense if the court finds that the two counts merge because this defendants possession on this record was not interrupted then the remedy which we look to the tan opinion for by Judge Sigeras is for the court to remand to the district court to reform the judgment that is to merge the counts making the decision which counts to set aside and which to would remain and then there would not be two concurrent sentences there would be a single sentence on the 922 G1 so that's that's that's the remedy so do I assume that you concede that there is no interruption we do not that's where we get the benefit of plain error on this record we were able to prove his possession at the firing range what's the error that is playing the error that's playing is if this court rejects our contention that the record establishes interruption and the interruption is established in this way there's no evidence whatsoever that the gun ever left the house or that Benjamin when he was away from the house directed the control of it what does the evidence show and more appropriately what did the jury conclude based on the evidence was the first instance of discrete actual possession by Mr
. The parole status was never objective it was it was ejected to prior to trial there was a 403 objection made prior to trial and emotion and lemonade which was overruled by the court. And then there were repeated references during the course of trial to the parole status many of which were references the defense counsel and I see it. Defense counsel defense counsel did not introduce the parole status during trial but once it was introduced defense counsel did try to work with it that that is conceitedly true but the way that it was used at trial was to suggest that because he was on parole he had a propensity to be the drug dealer to be the drug owner in that house he had a propensity to have used these drugs not as an use these gloves for instance not as an auto mechanic not to clean up the house but to package drugs interestingly I don't think there was ever a cautionary instruction there was not nor was there one requested by defense there was not judge Garth anything further is got it nothing just thank you all right thank you will have you back on the bottle Mr. Hanson Mr. Hanson could we start out on the merger question is the government has indicated in its brief that the government assumes without a decision of this court so holding that the crime of possession of a firearm by conduct the shaman as a continuing facts that this court if it hasn't already done so should adopt the position of I believe the sixth and the ninth circuits several of our sister several certain 11 6 yeah 9th that that that should be the applicable principle yes I think that's the appropriate place to start oral argument Judge Garth and Judge Sigeras I'm Eric Hanson I represent the United States as happily Judd Smith it you are correct our view is that 922 G1 felon in possession is a continuing offense if the court finds that the two counts merge because this defendants possession on this record was not interrupted then the remedy which we look to the tan opinion for by Judge Sigeras is for the court to remand to the district court to reform the judgment that is to merge the counts making the decision which counts to set aside and which to would remain and then there would not be two concurrent sentences there would be a single sentence on the 922 G1 so that's that's that's the remedy so do I assume that you concede that there is no interruption we do not that's where we get the benefit of plain error on this record we were able to prove his possession at the firing range what's the error that is playing the error that's playing is if this court rejects our contention that the record establishes interruption and the interruption is established in this way there's no evidence whatsoever that the gun ever left the house or that Benjamin when he was away from the house directed the control of it what does the evidence show and more appropriately what did the jury conclude based on the evidence was the first instance of discrete actual possession by Mr. Benjamin the the jury was asked in its verdict whether he possessed it on the date of the firing range which if I recall the 14th was the 14th which was a day after it was purchased and whether he possessed it on the date that he was arrested so the jurors found under under the bed yes you're on so the jury was never asked the question because the defense didn't alleged it before the case went to the jury explicitly was his possession between those two dates interrupted or not why should we not conclude on this record that there was a continuing period of constructed possession during those two points in time you just made reference to that your honor is extinguished to be the difficulty of the government's position which is that our evidence is too strong not too weak to support the conviction when one comes to the merger side of it but on on the jury follow you on that you you have no evidence you do know evidence of actual possession during those temporal points did you we we reduced actual possession on the date of the firing right and we prove constructive possession on the date that the defendant was arrested so why would that not have provided a record of circumstantial evidence from which an ongoing period of actual and then constructive possession continued it would support that had we charged a continuing offense which we frequently doing these circumstances for example if we had chosen to charge the case against both the defendants and charged her as a straw purchaser we would have charged him with possession from the date the gun the gun was acquired until it was seized we charged the case based on the evidence we had which left a gap from those two dates so the government gets a benefit from the gap in the evidence the government gets the benefit given that we're on under plain error if if the government has the burden of proving and this is not an element the question is merger if the government has to prove constructive possession or a time in which there was no constructive possession why isn't it the constructive possession here in the principles that are centuries old the principles of law that are applicable for the plain error would seem to me that the advocate that the existence of an application of constructive possession principles are about as plain as they can be they are and we proved his constructive possession on on the date in question if the court finds that the record establishes also his continuing constructive possession then we agree that the remedy that the defendants seeks that is the merger of those offenses should be applied but does it does the record support your I guess assertion that there was an interruption somewhere I understand the jury wasn't charged to find that but it just on a curiosity does he have it showing the the missus spree who was the owner of the gun exhibited at the time it was purchased a desire to have some control over it for example the defendant tried to persuade her to purchase another gun the defendant tried to persuade her to get a shoulder holster which she refused to do which demonstrated that she was prepared to stand up to him there is no evidence that the defendant ever removed the gun from the house and there's no evidence that the defendant ever attempted when he was away from the house was there any evidence that he was I have to rely on an absence of evidence there is no affirmative evidence that the gun was out of his constructive possession for example that she gave it to somebody else who returned it to her we did not have that with respect to the remaining arguments unless the court directs otherwise we'll rely on our brief judge Garin I have no questions Mr. Thank you. Thank you you're honest. Ms. Canapte for the Your owners with respect to the merger issue I think that the idea that the defense has to give notice that the felon of session statute is a continuing offense does does not make sense in light of this courts prior case law I think that's known to the government and understood that those offenses should merge at the time of sentencing it's unfortunate that that wasn't discussed at the time of sentencing but that should be considered plane error at this point how do you respond to the government's argument which I guess goes something like this you know the jury wasn't wasn't charged to find an interruption now now the defense is arguing this you know what do we do well I don't think the government can have it both ways I mean the theory that the government presented at trial was a joint possession theory if the government wanted to argue that he possessed it on two discrete days discreetly and that those should form two separate convictions that's the theory that they should have presented knowing that felon in possession is a continuing offense and that that's the backdrop of the case law that's not the way they presented the case they presented a joint possession theory that was the way that it was argued by both the prosecutor and the defense at trial the defense argued that he didn't possess it at all ever I think the record evidence supports that as we've argued in our brief she intended to possess it solely herself the entire time either he had dominion and control over that gun the entire time or he didn't you know the idea that he was able to exert it in that one moment I gather that's their theory in that one moment now on appeal they're saying he asked her to take it to the basement and that was his exertion of control in that one moment either he controlled it and had the ability to exercise dominion and control over it the entire time or he didn't and so either there's sufficient evidence to establish that he did either actually one or the other and it was a continuing offense from the date that the gun was purchased until until the day that that the search was conducted and that's consistent with the case law from the other circuits on joint possession and merger the cases involving the the gangs where the guns are shared between the gang members and the gun may be at another gang members home but when you know when they're shared by the gang members even if one gang member is not present he still exercises dominion and control over that weapon that's those are the Ellis that's the Ellis case and the Rivera case which are cited in our brief and it's also consistent with the the herodner case where the defendant dropped the gun at the repair shop and still exercise dominion and control over it it's the same situation I would also note that this court I don't think has ever reformed a judgment at the circuit level it's always remanded for the district court to reform the judgment and I would point the court to Lewis at 660 F 3rd 196 note 5 which is cited in our library at page 11 where the court noted that the district court in deciding the proper sentence may have been impacted by the fact that Lewis was convicted of two counts rather than one and may now wish to impose a different term of imprisonment which we would permit on remand and we would ask for that same courtesy to the district court in this case thank you very much thank you very much counsel the case as well argue present several interesting issues for us Mr
. Benjamin the the jury was asked in its verdict whether he possessed it on the date of the firing range which if I recall the 14th was the 14th which was a day after it was purchased and whether he possessed it on the date that he was arrested so the jurors found under under the bed yes you're on so the jury was never asked the question because the defense didn't alleged it before the case went to the jury explicitly was his possession between those two dates interrupted or not why should we not conclude on this record that there was a continuing period of constructed possession during those two points in time you just made reference to that your honor is extinguished to be the difficulty of the government's position which is that our evidence is too strong not too weak to support the conviction when one comes to the merger side of it but on on the jury follow you on that you you have no evidence you do know evidence of actual possession during those temporal points did you we we reduced actual possession on the date of the firing right and we prove constructive possession on the date that the defendant was arrested so why would that not have provided a record of circumstantial evidence from which an ongoing period of actual and then constructive possession continued it would support that had we charged a continuing offense which we frequently doing these circumstances for example if we had chosen to charge the case against both the defendants and charged her as a straw purchaser we would have charged him with possession from the date the gun the gun was acquired until it was seized we charged the case based on the evidence we had which left a gap from those two dates so the government gets a benefit from the gap in the evidence the government gets the benefit given that we're on under plain error if if the government has the burden of proving and this is not an element the question is merger if the government has to prove constructive possession or a time in which there was no constructive possession why isn't it the constructive possession here in the principles that are centuries old the principles of law that are applicable for the plain error would seem to me that the advocate that the existence of an application of constructive possession principles are about as plain as they can be they are and we proved his constructive possession on on the date in question if the court finds that the record establishes also his continuing constructive possession then we agree that the remedy that the defendants seeks that is the merger of those offenses should be applied but does it does the record support your I guess assertion that there was an interruption somewhere I understand the jury wasn't charged to find that but it just on a curiosity does he have it showing the the missus spree who was the owner of the gun exhibited at the time it was purchased a desire to have some control over it for example the defendant tried to persuade her to purchase another gun the defendant tried to persuade her to get a shoulder holster which she refused to do which demonstrated that she was prepared to stand up to him there is no evidence that the defendant ever removed the gun from the house and there's no evidence that the defendant ever attempted when he was away from the house was there any evidence that he was I have to rely on an absence of evidence there is no affirmative evidence that the gun was out of his constructive possession for example that she gave it to somebody else who returned it to her we did not have that with respect to the remaining arguments unless the court directs otherwise we'll rely on our brief judge Garin I have no questions Mr. Thank you. Thank you you're honest. Ms. Canapte for the Your owners with respect to the merger issue I think that the idea that the defense has to give notice that the felon of session statute is a continuing offense does does not make sense in light of this courts prior case law I think that's known to the government and understood that those offenses should merge at the time of sentencing it's unfortunate that that wasn't discussed at the time of sentencing but that should be considered plane error at this point how do you respond to the government's argument which I guess goes something like this you know the jury wasn't wasn't charged to find an interruption now now the defense is arguing this you know what do we do well I don't think the government can have it both ways I mean the theory that the government presented at trial was a joint possession theory if the government wanted to argue that he possessed it on two discrete days discreetly and that those should form two separate convictions that's the theory that they should have presented knowing that felon in possession is a continuing offense and that that's the backdrop of the case law that's not the way they presented the case they presented a joint possession theory that was the way that it was argued by both the prosecutor and the defense at trial the defense argued that he didn't possess it at all ever I think the record evidence supports that as we've argued in our brief she intended to possess it solely herself the entire time either he had dominion and control over that gun the entire time or he didn't you know the idea that he was able to exert it in that one moment I gather that's their theory in that one moment now on appeal they're saying he asked her to take it to the basement and that was his exertion of control in that one moment either he controlled it and had the ability to exercise dominion and control over it the entire time or he didn't and so either there's sufficient evidence to establish that he did either actually one or the other and it was a continuing offense from the date that the gun was purchased until until the day that that the search was conducted and that's consistent with the case law from the other circuits on joint possession and merger the cases involving the the gangs where the guns are shared between the gang members and the gun may be at another gang members home but when you know when they're shared by the gang members even if one gang member is not present he still exercises dominion and control over that weapon that's those are the Ellis that's the Ellis case and the Rivera case which are cited in our brief and it's also consistent with the the herodner case where the defendant dropped the gun at the repair shop and still exercise dominion and control over it it's the same situation I would also note that this court I don't think has ever reformed a judgment at the circuit level it's always remanded for the district court to reform the judgment and I would point the court to Lewis at 660 F 3rd 196 note 5 which is cited in our library at page 11 where the court noted that the district court in deciding the proper sentence may have been impacted by the fact that Lewis was convicted of two counts rather than one and may now wish to impose a different term of imprisonment which we would permit on remand and we would ask for that same courtesy to the district court in this case thank you very much thank you very much counsel the case as well argue present several interesting issues for us Mr. Hanson I almost slipped at one point when I fortunately made reference to the government's evidence I almost referred to the common well evidence thinking of you and an earlier incarnation when I was in an earlier incarnation I might have slipped back to those times to you probably happens from time thanks very much
Good morning. Good morning Judge Garth. Good morning Judge Garth. Good to be with you. Good to be with you. Judge Garth is joining us as you can see. The audiovisual and the medics. We have one matter listed this morning that being United States of America versus the Benjamin. Is it Gannett or Gannett? It's Gannett, your honor. Thank you, Your Honor. Good morning and may it please the court. My name is Sarah Gannett and I represent the appellant Nathaniel Benjamin in this matter. With the court's permission I would request three minutes for a but all. Thank you. I propose to address two of the four issues on this appeal this morning. The insufficiency of the evidence to support the Gannett and drug convictions and the erroneous admission of the evidence of Mr. Benjamin's parole status. I would like to begin with the sufficiency of the evidence on the drug convictions. Mr. Benjamin's 10 year sentence for firing the Gannett the shooting range was effectively doubled by the drug convictions which were based on the marijuana and crack cocaine that was found in a home he did not own hidden in the ceiling of a common room to which any number of people had access and which witnesses testified was used by many. Yeah, but he did have the he had his stereo equipment there. It was adjacent to where he did his job. You're working on the car's an old isn't that enough. It's not enough for this reason. There were all sorts of materials found in that basement that were associated with all sorts of people. There were two or three gaming tables. There were pool tables. There was a food ball table. There was laundry in the basement. There were teenagers who came in and out of that basement on a regular basis who hung out there in the evening. I'm sorry. The ledger the ledger. I think the ledger is the only piece of evidence that the government can argue would direct the time Mr. Benjamin to the drugs. What about the nitrile gloves? Nitrile gloves weren't they found in Mr. Benjamin's car? Well, so if I could I'd like to address the ledger and then the gloves each separately. I certainly you're permitted to do that but all together and then together. I think it is important to look at them separately and then together because I think if you break it down separately what you end up with is individually sort of ambiguous pieces of evidence which together could be. The skills of the prism of the standard of review here which is kind of a high held decline. It is a high held decline but the standard is that there must be evidence to support the verdict on each element beyond a reasonable doubt. So it is it is still a standard that requires substantial evidence and it requires evidence beyond speculation and surmise and it requires a decisive nexus between the defendant and the evidence and that's I think where the government's case crumbles here. So starting with the supposed ledger which actually was just a memo pad and I want to begin here before we actually discuss the ledger by correcting a misstatement in the reply brief. Page five at footnote five I said that the district court sustained an objection to the eight ball testimony. The district court sustained a number of objections to the testimony about the ledger but the eight ball testimony actually went unobjective to. So I want to make sure that that is clear. However there were numerous objections sustained to the ledger testimony and the reason was that the district court found much of that testimony to be speculative and here's why the ledger basically was a small note. A memo pad and it had some slips of paper and what the memo pad contained was all kinds of information all kinds of notes including notes about cars notes about Mr. Benjamin's cell phone job and it was undisputed that he repaired cars and that he had a legitimate job selling cell phone service plans and it contained phone numbers. It contained names and it contained all sorts of notations about with numbers. And the testimony about the fact that it was a drug ledger was was very conclusive that the agent said I see and I see a word I see a number I conclude that that refers to drugs but the eight ball testimony for example. There's nothing improper about that as being opinion testimony. There's nothing improper about it. It was evidence that the jury could properly consider. It was but as the district court noted it was speculative at best and when it was surrounded by all of this record evidence about Mr. Benjamin's legitimate activities it was not the kind of solid evidence that establishes the decisive nexus of dominion and control which is what's required under this court's case law. Yes Judge. Ms. Kennedy. I want to know what relief you are seeking here the primary relief that you're seeking is it that all of the convictions including the one that he does not dispute on having a weapon that all of them should be vacated. That some of them should be or that what you want is a recent. Well I think that what we've requested is we have not challenged except with respect to the interstate commerce claim we have not challenged the conviction for firing the gun at the shooting range. We have challenged the other conviction for the gun so that conviction stands that conviction would stand yes your honor and the other conviction for firing the gun and the drug convictions would be vacated. That's what you would like that's what we would like. I'm glad Judge Garth asked that question because I may have missed something at the very beginning of your argument but I didn't hear you speak to the merger question which is one of the major issues. I believe in this case and this court has not specifically spoken back in the past. That's correct although I think that this court's prior case law about 1202 which was the predecessor statute indicates what the right result should be on the merger issue and this court's case law regarding merger of convictions generally speaks to. I'm speaking only for myself that happens to be my view but it still remains an open question and I'm going to be interested to hear from the government because I they may have foreshadowed that in the concession they made it page 31 of the red ring but I do want to hear the position. I'd like to address Judge Smith your one final point regarding the ledger and then your question about the gloves if I might miss a question. If we move just and about the if we agree with with with the other circuits have decided this and agree with your argument that about the merger there we don't need to be in this do we. I think it does need to be remanded I think this this court's case law on merger is consistent that the only thing that is a plays that hundred that hundred twenty dollars special assessment. There is a hundred dollar special assessment there is a supervised release term and and the concurrent sentence but as this court said in the recent case Lewis where the court was looking at the violation of a statute while the defendant was on pretrial release a district court may also determine that if a conviction is vacated and they wish to give a different sentence because there are now three convictions instead of four convictions. And this court should give the district court the opportunity to assess the case three rather than four convictions. Ms. Ganon I'm glad that Judge Shigerra's brought to your attention what the government is evidently conceded that the hundred dollar assessment may be the only difference which would not require a remand and you say that a remand is necessary. Why I think a remand is necessary because first the district court will need to enter a new judgment and secondly because the district court should have the opportunity to consider the appropriate sentence given that there would now only be three convictions instead of four convictions and the district court may in its discretion which to enter a different sentence than the sentence that was originally imposed given that there are now only three convictions and not four. It may not wish to do that but that should be a decision that's left to the sound discretion of the district court. Bottom line you would like the district court to look at this if there were a remand and all the convictions stood saved for the one felon and possession charge to consider that there was simply a single continuing possession as opposed to two discrete possession. That's correct. I mean arguably the defense defense council could could make some equitable 3553 arguments that three convictions is less than four that it shows less kind of criminal intent to possess a gun by one continuous possession than two separate times and there are there are reasons the judge might want to create a different type of sentence than the one that was issued originally with four. Well, Miss Gallen the district court judge did not assess your client with a penalty because of the having a gun in connection with drugs was having a gun in connection with being a prior felon isn't that so that's correct. That's correct but the 35 what happens what happens on remand if he has a different view of the possession of a gun with whatever evidence there is of the drug deal. Well, so there's certainly always a risk when the defendant requests to remand for resentencing the judge could look at the resentencing either way but our position would be on resentencing that three convictions is less than four and that the judge should consider a downwardly adjusting the sentence. Thank you. With respect to the ledger I wanted to add one point which is that even the expert in addressing the ledger said that he would not rely on the ledger alone in forming his opinion he said he would also need to rely on other facts including the possession of the gun which it's our position was solely possessed by Mrs. Spree as evidenced by her ownership and her statements that she kept it on her at all times which the government stated in closing argument they found to be quote extremely honest by the presence of the dog for which there was testimony he was the family pet and then by the gloves which is an advertence to the defendant's parole status and so if even the expert has to advert to the parole status in order to come to his opinion I think that demonstrates how weak the evidence is overall there's a cloud of suspicion in this case about Mr. Benjamin certainly but it's not evidence beyond a reasonable doubt until it's layered with his parole status and it's only the parole status. The parole status was never objective it was it was ejected to prior to trial there was a 403 objection made prior to trial and emotion and lemonade which was overruled by the court. And then there were repeated references during the course of trial to the parole status many of which were references the defense counsel and I see it. Defense counsel defense counsel did not introduce the parole status during trial but once it was introduced defense counsel did try to work with it that that is conceitedly true but the way that it was used at trial was to suggest that because he was on parole he had a propensity to be the drug dealer to be the drug owner in that house he had a propensity to have used these drugs not as an use these gloves for instance not as an auto mechanic not to clean up the house but to package drugs interestingly I don't think there was ever a cautionary instruction there was not nor was there one requested by defense there was not judge Garth anything further is got it nothing just thank you all right thank you will have you back on the bottle Mr. Hanson Mr. Hanson could we start out on the merger question is the government has indicated in its brief that the government assumes without a decision of this court so holding that the crime of possession of a firearm by conduct the shaman as a continuing facts that this court if it hasn't already done so should adopt the position of I believe the sixth and the ninth circuits several of our sister several certain 11 6 yeah 9th that that that should be the applicable principle yes I think that's the appropriate place to start oral argument Judge Garth and Judge Sigeras I'm Eric Hanson I represent the United States as happily Judd Smith it you are correct our view is that 922 G1 felon in possession is a continuing offense if the court finds that the two counts merge because this defendants possession on this record was not interrupted then the remedy which we look to the tan opinion for by Judge Sigeras is for the court to remand to the district court to reform the judgment that is to merge the counts making the decision which counts to set aside and which to would remain and then there would not be two concurrent sentences there would be a single sentence on the 922 G1 so that's that's that's the remedy so do I assume that you concede that there is no interruption we do not that's where we get the benefit of plain error on this record we were able to prove his possession at the firing range what's the error that is playing the error that's playing is if this court rejects our contention that the record establishes interruption and the interruption is established in this way there's no evidence whatsoever that the gun ever left the house or that Benjamin when he was away from the house directed the control of it what does the evidence show and more appropriately what did the jury conclude based on the evidence was the first instance of discrete actual possession by Mr. Benjamin the the jury was asked in its verdict whether he possessed it on the date of the firing range which if I recall the 14th was the 14th which was a day after it was purchased and whether he possessed it on the date that he was arrested so the jurors found under under the bed yes you're on so the jury was never asked the question because the defense didn't alleged it before the case went to the jury explicitly was his possession between those two dates interrupted or not why should we not conclude on this record that there was a continuing period of constructed possession during those two points in time you just made reference to that your honor is extinguished to be the difficulty of the government's position which is that our evidence is too strong not too weak to support the conviction when one comes to the merger side of it but on on the jury follow you on that you you have no evidence you do know evidence of actual possession during those temporal points did you we we reduced actual possession on the date of the firing right and we prove constructive possession on the date that the defendant was arrested so why would that not have provided a record of circumstantial evidence from which an ongoing period of actual and then constructive possession continued it would support that had we charged a continuing offense which we frequently doing these circumstances for example if we had chosen to charge the case against both the defendants and charged her as a straw purchaser we would have charged him with possession from the date the gun the gun was acquired until it was seized we charged the case based on the evidence we had which left a gap from those two dates so the government gets a benefit from the gap in the evidence the government gets the benefit given that we're on under plain error if if the government has the burden of proving and this is not an element the question is merger if the government has to prove constructive possession or a time in which there was no constructive possession why isn't it the constructive possession here in the principles that are centuries old the principles of law that are applicable for the plain error would seem to me that the advocate that the existence of an application of constructive possession principles are about as plain as they can be they are and we proved his constructive possession on on the date in question if the court finds that the record establishes also his continuing constructive possession then we agree that the remedy that the defendants seeks that is the merger of those offenses should be applied but does it does the record support your I guess assertion that there was an interruption somewhere I understand the jury wasn't charged to find that but it just on a curiosity does he have it showing the the missus spree who was the owner of the gun exhibited at the time it was purchased a desire to have some control over it for example the defendant tried to persuade her to purchase another gun the defendant tried to persuade her to get a shoulder holster which she refused to do which demonstrated that she was prepared to stand up to him there is no evidence that the defendant ever removed the gun from the house and there's no evidence that the defendant ever attempted when he was away from the house was there any evidence that he was I have to rely on an absence of evidence there is no affirmative evidence that the gun was out of his constructive possession for example that she gave it to somebody else who returned it to her we did not have that with respect to the remaining arguments unless the court directs otherwise we'll rely on our brief judge Garin I have no questions Mr. Thank you. Thank you you're honest. Ms. Canapte for the Your owners with respect to the merger issue I think that the idea that the defense has to give notice that the felon of session statute is a continuing offense does does not make sense in light of this courts prior case law I think that's known to the government and understood that those offenses should merge at the time of sentencing it's unfortunate that that wasn't discussed at the time of sentencing but that should be considered plane error at this point how do you respond to the government's argument which I guess goes something like this you know the jury wasn't wasn't charged to find an interruption now now the defense is arguing this you know what do we do well I don't think the government can have it both ways I mean the theory that the government presented at trial was a joint possession theory if the government wanted to argue that he possessed it on two discrete days discreetly and that those should form two separate convictions that's the theory that they should have presented knowing that felon in possession is a continuing offense and that that's the backdrop of the case law that's not the way they presented the case they presented a joint possession theory that was the way that it was argued by both the prosecutor and the defense at trial the defense argued that he didn't possess it at all ever I think the record evidence supports that as we've argued in our brief she intended to possess it solely herself the entire time either he had dominion and control over that gun the entire time or he didn't you know the idea that he was able to exert it in that one moment I gather that's their theory in that one moment now on appeal they're saying he asked her to take it to the basement and that was his exertion of control in that one moment either he controlled it and had the ability to exercise dominion and control over it the entire time or he didn't and so either there's sufficient evidence to establish that he did either actually one or the other and it was a continuing offense from the date that the gun was purchased until until the day that that the search was conducted and that's consistent with the case law from the other circuits on joint possession and merger the cases involving the the gangs where the guns are shared between the gang members and the gun may be at another gang members home but when you know when they're shared by the gang members even if one gang member is not present he still exercises dominion and control over that weapon that's those are the Ellis that's the Ellis case and the Rivera case which are cited in our brief and it's also consistent with the the herodner case where the defendant dropped the gun at the repair shop and still exercise dominion and control over it it's the same situation I would also note that this court I don't think has ever reformed a judgment at the circuit level it's always remanded for the district court to reform the judgment and I would point the court to Lewis at 660 F 3rd 196 note 5 which is cited in our library at page 11 where the court noted that the district court in deciding the proper sentence may have been impacted by the fact that Lewis was convicted of two counts rather than one and may now wish to impose a different term of imprisonment which we would permit on remand and we would ask for that same courtesy to the district court in this case thank you very much thank you very much counsel the case as well argue present several interesting issues for us Mr. Hanson I almost slipped at one point when I fortunately made reference to the government's evidence I almost referred to the common well evidence thinking of you and an earlier incarnation when I was in an earlier incarnation I might have slipped back to those times to you probably happens from time thanks very muc