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Case number 22-7142. Andre Ferguson, a balance versus Washington, and Republican area, transit authority. Mr. Tucker, for the balance, Mr. Guest, for the Evelie. Morning Council. Mr. Tucker, please proceed when you're ready. Good morning, judges. Justice, I am Charles Tucker. I'm here to present on behalf of Mr. Andre Ferguson. In this matter, the trial court of abuse is discretionary when it ruled on defense, most for summary judgment, as a matter of law. This morning, I'll be arguing three main points to support that. One, when they should court aired when, in determining the issues, first, that Mr. Ferguson's claims were time-barred, two, that there was no adverse employment actions and found out discrimination on the basis of race. The re most importantly, the plaintiff was engaging in protected activity at all times, and it was affirmed that he reported race prior to being denied opportunities at promotion. When the court found that the decision makers were different people, this clearly was not supported by the record. In fact, we're not a continues to contradict itself on several matters in regards to, whether or not the actors and the reasons for the denial of a employment opportunity in Mr. Ferguson was actually based on race. In fact, we believe that the depiction and what matter, which was granted some re-judgment, is flawed as a matter of law, because it's like a house of cards. It's based, at the base of it, you pull out one of the cards, the entire house will fail. It's based on a pre-disposition as ruled by the district court, that they provided a legitimate non-protectual reason for Mr. Ferguson, not hit and granted an opportunity in being interviewed. Not only were the actors the same in the 2017 and the 2019 denial of his employment opportunity, but most importantly, the reasons offered by Womata, clearly are not consistent with what the record has been submitted. Let me take the arguments in turn. Whether or not Mr. Ferguson's claims, the host of work environment, retaliation, and race are time-bored. Our position they are not, and it's supported by case law. We would like to present to the court national railway passenger court, first, Morgan 536, US 101, 122nd. The pre-incorrect case, we believe this is persuasive in that it deals with the case involving hostile work environment claims. In this case, the court pointed out that hostile work environment claims are quite different from cases involving discrete acts, most importantly, by the quoting from the case, because their very nature involves repeated conduct. We submitted a court in this case, the 2017 non-selection. Matter of fact, he wasn't even not selected. He was never interviewed. At the time of the 27 non-selection process, Mr. Ferguson had operated in that position six months as an acting director. He had preferred to the department, a electronic program that would benefit the way the business was able to do its job. What happened, he wasn't even considered. He was reviewed and given a role model by the performance evaluation as submitted for his leadership and his ability to lead the team. They selected Mr. Gregory Collins? Yes. What is your best evidence that these decisions were on the basis of race? That these employment decisions were on the basis. Sure. Should we? Our best evidence that the decisions were on the basis of race was because the actors involved acted according to, so I would answer your question two parts. One, the pattern and culture of Lamada has a history of racial discrimination. And that's not something that is being made up. Lamada has admitted to their leaders and teams in meetings itself. So the admission is one. Two, the actors as profored, provide conflicting information as to why Mr. Ferguson was not selected. They profored affidavids that are not supported by the facts of this case of what actually occurred. Mr. Ferguson drew attention to the individual that was selected over him. Mr. Gregory Ferguson, saying this individual has a racist issue and I've had problems when in the past on the basis of race. What happens? He gets selected for the job of which Mr. Ferguson was never considered. Two, during that tenure, a hostile environment based on racial discrimination takes charge against Mr. Ferguson. Three, to most important point, what Mr. Ferguson feared the most occurred in August of 2019, Mr. Collins was terminated for a workplace violation of workplace policy when he was violently and aggressively yelling at an African American female employee. See, it's not like Mr. Ferguson made this stuff up. Voice his concerns raised it, thus putting himself in protected activity, but they allowed him to remain under his supervision for Mr. Collins until it finally manifested into an incident where they finally had to act. So again, to answer your questions, I'd rather be, to combine best evidence that we have that this was non-selection on 2017 was on the basis of race. Was because one, Mr. Ferguson was very qualified for the job. How do we know this? He was operating in the position two. He was recognized for the operation of the position and the reasons profit by one motto simply don't make sense. But, Mr. President, this is put on a performance improvement plan. Is that right? Judge, by what mod is account he was, but when and why is what is being the question and the record does not support it. The trial court found that Mr. Ferguson didn't profit legitimate. I mean, Mr. Ferguson did not provide a legitimate basis for his defense that these were pre-textual. They were actually based on race. But looking at the record, it's actually the opposite. What's presented is one, there were emails. In the record, there are emails that they discovered that the pip that was allegedly presented to Mr. Ferguson didn't even look right. Because the signature look transpose by their own admission. For Mr. Ferguson's account, he was never presented it. This was something that was created. And it's not just my words. If we look at the transcript, see the the trial court looked at the transcript, Mr. Ferguson. They just didn't look the right place. Had they looked at page 178, we would understand how the pip was actually created. It was a conversation with Mr. Paul Merritt. Mr. Paul Merritt says, oh, by the way, I was going to consider you for the position. And this was in 2019 judge. We were going to consider you for the position this time, but you're on a pip. Mr. Ferguson with response, I've never been on, I'm not on a pip. Wasn't presented to me. Mr. Paul Merritt's response was, if you're not on a pip, I will create one. And if we look at the emails that are in the record, that's exactly what they did. In fact, in the conversation with HR, they have concerns at the appearance of it. And the way it was a never reported to HR, and it wasn't properly presented to the employee. So the creation and the words by Mr. Paul Merritt, oddly enough, Judge, this points out, Chief Judge. In Mr. Paul Merritt's affidated, he kind of left that part out. Again, this house of cards clearly fails because in this affidated, he doesn't point out the fact that he had a conversation with Mr. Ferguson. And he told him if the pip wasn't there that he would create. I'm sure my colleagues don't have additional questions for you at this point. We'll give you a little time for a bottle. Okay. Thank you. He was checker. Good morning, your honor. And may a please the court. The decision by the district court, granting one modest on Reggieadron, was a correct one. And I want to start with the failure to exhaust issue, which was pretty clear. One mod is sits in a different place in the district of Columbia. If you have to file a charges from the nation within 180 days as opposed to 300 days. There were three of Mr. Ferguson's allegations. One being the failure to be promoted to the TAMO position in 2017. Then now the opportunity to position a program to the executive management team and the late receipt of his paycheck in 2019. The court correctly concluded. Those three allegations were outside to 180 day limit. And so they were not considered because Mr. Ferguson failed to exhaust those claims. And that they're backed up by number one, the April 30th letter. You don't necessarily have to follow the habit of your charge of discrimination. If there's other findings to the EOC indicating what employees are going to do. And employees prepare to file this charge. But even in that letter, there is no mention at all. Of those three issues, the 2017 TAMO pay to be promoted. The failure promotion in 2017, no mention of the denial of the opportunity to visit the EACSI to the executive management team and the late paycheck issue. So those three allegations were properly disposed of. In terms of the retaliation claim, the lower court also ruled that Mr. Ferguson failed to exhaust his allegations under total seven for retaliation. So that's typically that he failed to mention in this EOC letter. Well, EOC letter actually, what his retaliation failed to check the box as well. And those claims were properly not in front of the court, and it lower court made the correct decision that those that redosa retaliation claims were not exhausted. One of the, I want to reserve from the back, and the the lower court did address Mr. Ferguson's hostile work environment. And one of the most argument was that. Mr. Ferguson's allegations were more discrete. Meaning that there were more that weren't a pad pattern of a hostile work environment, but he was trying to put piggyback as hostile work environment, claimed based on actual incidents of what he alleged adverse actions. So under his hostile work in playing, he included the Vader promote in 2017. He included the. That paycheck issue those issues that were properly that weren't that were not exhausted from the EOC. So the lower court did address those issues were mounted in its brief. Does state. We believe the hostile work environment claim was failed. Did not was not exhausted again. We have the charge of discrimination. It's not in his letter to the EOC. The hostile work environment box is not checked in the chart on the original charge of discrimination. Mr. Ferguson's. That doesn't, it doesn't matter that much. The chat, the box wasn't checked, right? It doesn't, yes, sure. It doesn't matter that much, but it has to be summed in particular. It's summed in particular, summed narrative to show that EOC what they're investigating. And that it wasn't there. There was nothing indicating that his allegation was a hostile work environment in the charge of discrimination. It would have alerted the EOC that these were also claims that needed to be investigated. So that, we're not a kept argument in for the sake of the court that the hostile work environment was also not properly exhausted. Moving on to the real media claim, the legitimate mandatory reason for his from not promoting or hiring Mr. Ferguson to the TAMO position in 2019. This is where the facts are important to you. Mr. Ferguson received a seven on his end of the 2019 end of year evaluation. I was an August of 2019. At that time, he's reporting to Mr. Collins. A seven one-one-moder's end of year employment evaluation mandates a performance improvement plan. What happened is that the following day, and this was given to him on August 1st. On the following day, Mr. Ferguson's goal was to win modest EAP program and take some takes leave. So, and he stays only in October 1st 2019. In between that time, what modest has reorganized the Department of Mr. Ferguson was in. So, and also Collins is terminated for unrelated issues. Terminated for yelling at a colleague. She happened to be African-American, but there's no evidence that it was he yelled at his colleagues because of anything he would raise. She just happened to be African-American, but that was not why he was terminated. He was terminated because he's a supervisor of yelling at her employee. There's no evidence that there were any racial connotation to that incident. But he's terminated in August 16th, 2019. Mr. Palamari, because of the reorganization now becomes Mr. Ferguson's supervisor. And this is when he has every intention to prosecute to interview Mr. Ferguson for that TAMO position, because Mr. Ferguson has been at the time, because Mr. Palamari was not supervising Mr. Ferguson in sort of reorganization. Mr. Ferguson is so much high up in middle management. So, of course, he would be considered if they work to hire for this director position. At that time, Mr. Palamari is told that from HR that there's employee, that he is an inherited that should be one of performance improvements planned. At the same time, Mr. Palamari is observing, because Mr. Ferguson comes back all for leaving our October. He actually is personally observing Mr. Ferguson's interaction with his colleagues. And he doesn't like what he sees. And at that point, he inquires with HR department, and they revealed it had that Mr. Ferguson was the one that received the seven on his 2019 interviewer valuation. He demanded it, they pet. That's why Mr. Palamari, at that time, because of his observations of Mr. Ferguson, decided that, at that, okay, I'm not going to interview him for the 2019 interviewer for the T.A. Col. position in 2019, but also the pit needs to be formalized because he received the seven. And that's when Mr. Ferguson is placed on performance improvement plan. But the decision not to promote Mr. Ferguson was not strictly because of the performance improvement plan. It was also because of Mr. Palamari's personal observations. And that is when modest non-discriminatory reason for not promoting Mr. Ferguson. Another, you also have the non-discriminatory reason. I understood from your, sorry, aren't I? I thought from your submissions, I also understood that you had a non-discriminatory reason to the effect that there was a belief that Mr. Ferguson was on a performance improvement plan. But that is, as well, because the seven, when the end of year evaluation, mandated the pit. So yes, the, it's not, it's not, it was finally formalized. And after the decision, somewhat after the decision, but when Mr. Palamari learns that he's supposed to be on a performance improvement plan, because of this seven, that way into the decision not to promote Mr. Ferguson. I'm, you are, and that's that is one modest argument, reserved for radio by time. Thank you, council. Mr. Tucker will give you two minutes for a battle. Briefly, hostile work environment claims by its nature supported by caseless scene and our brief clearly illustrate the reasons that they should be taken into consideration outside it of this jurisdiction of barbysically checking off the box. Well, modest position is that these are isolated incidents and don't really rise to the level of the exception. The exception, which in the case where a person in Mr. Ferguson's position can show a pattern in practice, as I stated earlier, this was, in fact, the pattern in practice. Show on came in the same individual that told Mr. Ferguson, oh, I didn't get your application. Can you submit it again? He submits it again and he's still not interviewed in 2017, even though he occupied the position. Second, when he's not interviewed in 2019, the same individual comes to him and said, is involved in the decision making of non-selection. The tip that they speak of, arguably, whether it was created and when it was created, Sean came and was not his supervisor. But he was involved again in this process. His name appears on the doctor text. How do we know it's doctor when we look at their own evidence, exhibit five and six in the record, support two performance plans that were allegedly given to Mr. Ferguson at the mid-year? In it, it details a lot of information and in one of the versions it shows seven that were modded justifies as the reason for his non-selection. Oddly enough, at the last question underneath the signatures, it presents the opportunity for a modter to indicate that he would be put on a pip. And neither version is the pip box checked off showing that there was never really a reason to put him on a pip that was part of a pattern and practice of racial practices by Womada. Thank you, Council. Thank you to both Council. We'll take this case under submission. Thank you.

Phase number 23-1757. Mark up here in NOL, Ms. Pierre on behalf of her minor child care and advance versus Bridges Public Tortoise School and District of Columbia Immunisable Corporation. Mr. Cyber for the Appalachian, Mr. Gerton for the Appalachian District of Columbia, Ms. Bound for the Appalachian Bridges Public Tortoise School. Good morning council. Mr. Cyber, please proceed when you're ready. Morning your honours. Mr. Cyber, before you begin, I'm at a loss to know why we didn't find out until yesterday that this child has not been in school, or at least at Bridges, all year long. Well, I think to directly answer that, the, it was not hidden by any means. I mean, this was something that the school system knew about. Did you know about it? Yes, I knew about it. And of course, at the same time. And why didn't you inform the court? Well, I guess because I think it's beyond the record for the first part. I mean, the IEP only lasted for last school year. So, I mean, this entire time. Direct effect on one of the defendants, the Bridges School, if he's not even in that school. Well, no, I respectfully disagree with that. I think that what needs to be mentioned all this, the backstory, okay, is that last summer, they had another IEP meeting. And at that IEP, Bridges decided to take away the homebound services for KAN. It's not in the record, but they decided to take the homebound services away. So my client was faced with, well, I'm not going to get any services at home. So what do I do? And she ended up finding a private school that would take him on a contingency fee basis. There was opening a new school in the district of Columbia for starting this last fall. So faced with no services at home versus getting something from the private school, she chose the private school. And I think it's important to know that the relationship in these these kind of tuition reimbursement situations for private schools. There's an equitable consideration where the child is more likely to end up going back to that same public school because the public school hasn't incentive to offer the child a fee. Because if the parent asks acts unreasonably in delaying or continuing for private school, she might get that tuition deducted or diminished. So there actually isn't incentive for that public school to take the child back to offer a fee upon offer the services he's entitled to under the IDA. And if you want a case for that, legate versus district of Columbia from this circuit addresses that point. Is your position that it makes no difference that one of the defendants? That is the bridges school is not, he's not enrolled there. Is that your position? That it makes no difference and hasn't been enrolled there for this whole year? Well, no, I think I mean, principally, the district of Columbia is responsible for the transportation support of services in my child or my clients child is seeking in this case. All right, but you've got another defendant you've sued bridges. Well, I mean, I guess that I don't think any of this was hidden from bridges. I mean, bridges knew what was going on. Well, I'm going to ask bridges the same question. Go ahead with your argument. Well, I think again because it's capable of repetition while evading review. So in my mind, this entire time, what's the current status? He's enrolled with DCPS and the district continues to deny him transportation from his president's door to school in all the way back. And then the school is not bridges anymore. The relevant school would not be bridges. It's another school. It's another district of Columbia Public School, correct? But there's the same issue about where and whether there would be a pickup at home. Correct. The state agency's obligation to transport the child all the way from his resident's door to the school in back. I can't just ask, what's the status of the IEP? That's the one that gives rise to the dispute. So IEP is only last for a year by their nature. And so the failure to implement claim was only good for the 2223 school year that it was active. But it's the same time that the legal issue in this case is a broader IDE question of what does transportation mean in the statute? What do you support a service as mean? So this is the exact type of legal question that's right for capable of repetition while evading review. Does the new IEP have the same terms as the one before us? No, because in the wake of the district court decision, the LAA decided to take that service off. So because of the district court's action, they took that transportation away from our lives. So the current IEP doesn't even doesn't provide for transportation services. It does just not the services between the boss and the whole. So I'm not carrying services. Right. But. But again, because the legal question in this case is, I mean the district court even said the judge said himself, this isn't failure to implement. This is about what does this child require under the I'd. What is this child entitled to under the IDA? What does transportation mean? In general, when a service gets put on an IEP, unless that IEP is challenged, the appropriateness of that service is presumed correct. But this district court said that's not the case. So the issue in this case is about the design of the IEP about what appropriate services are. It's not. We take the case essentially on the idea that even though the current IEP doesn't include the disputed service, everybody thought bringing an incumbent understanding that if that disputed service were in fact within the compass of transportation under the IDA, then it would be part of the IEP. So second to cut, your view is there's still a concrete dispute about whether transportation encompasses the pickup at home in particular the pickup at the door to the apartment because everybody thinks that even though the IEP currently doesn't have it, that's because that service was withheld by the district. If, if, as a matter of law, the IDA did cover that kind of pickup within the compass of transportation, then the IEP would include correct that the way you're looking at it. Yes, and the IEP would be inappropriate currently. But I thought the way these suits arise is that a service is included in the IEP, and then if it's withheld, it gives rise to an action to challenge the withholding of that. But if there's no transportation included in the IEP, then what's the, what's the precise claim before this court now? I think the claim is the same. So quite frankly, I don't think it matters whether the service is on the IEP. IEPs are not contracts. You know, IEPs are the, they're supposed to be the compilation of all of the services that the child needs under the statute. So quite frankly, IEP doesn't have to exist in order for the child's rights to the services that the child needs under the IDA to exist. The IEP is just the vehicle to memorialize the services, but if a service is not an IEP, the child is still entitled to it if he's entitled to it under the IDA. But not if there's an agreement. IEP could be kind of in a combination where everybody who's at the table gets together and says, you know, we've got some disputes about the parameters of this, but why don't we all just come together and avoid all that? By collectively agreeing on an IEP that doesn't deal with this issue anymore, we're all okay with it. At that point, there wouldn't be a dispute on the for us to. If my client waived or didn't think that this transportation was required anymore, then yes, she would waive her right to that on the IDA, but that's that's not the facts of this case. She's been insisting on this service since COVID, since the pandemic ended, if I can be so brave to say that. And we were returning to in person services. Can I ask you a question on the merits then if just to go to the merits? So the gear view is that the transportation encompasses hiccup at the door at the door that you're harming. Yes. And if that's true, and let's just assume for these purposes that you're right about that, I just want to explore the implications of that. If that's true, would it mean that that anyone in this situation where they had transportation services as part of an IEP would be entitled to pick up at the door, regardless of whether the parent is able to on their own assist the child to get to the parking lot of the curb. Because in this case, I understand that the factual predicate is that there's actually not a parent, at least for some days of the week, who's able to perform to carry the child to outside to the vehicle. And that's why there's a need to have somebody come to the front door and pick them up and carry the child. What I'm wondering is suppose that this case is resolved in your favor, so that transportation services is construed to at least be capable of going to the door to the department. My question is, would that then mean that that's what transportation services means? So regardless of whether a parent is able to carry the child outside the door to the vehicle, now we'd have a reading at the statute that would say that the parent doesn't have to do that anymore, because the school's obligated to, school's obligated to do that. If the child's disability, if the unique needs of the child require transportation between the school bus and the door of the residents, then that services required. So it wouldn't be required for all students with disabilities, because most students can't dislocate themselves between the residents and the school bus. Right. But it does put the onus then for that type of child who has that kind of disability, it puts the onus on the district to do it, regardless of the parent's ability to do. Correct. Correct. And I think that again, I mean all transportation convenience is parents. I mean I think that an IDEA services in general convenience parents. I mean a parent could provide faith to their child. And they're I mean I could quit their jobs, they could homeschool. It's not a requirement other than school attendance laws and the district. So you know, I think even with not disabled children, school bus services, it's not as if everybody can't take advantage of a school bus regardless of a parent's ability to themselves take a kid to school. And so in a way, the IDEA comes along and says that those kinds of services ought to be conformed in such a way that disabled children can get a benefit from transportation as well. With I guess the one caveat that in the district, there are no school bus services for non-disabled students, it's the school, it's the regular buses and the train. But otherwise, yes, I agree with with the statement. And I do see that my time is up. But you know, I think that, you know, particular to the district court's decision is that, you know, we're not trying to seek an expansion of transportation. I mean the ordinary and plain meaning of transportation is to move someone or something from one place to another. And the district court recognized that. But he thought that there was another narrower version. And that narrower version, unfortunately, clashes with other provisions of the act. And that means that it's, it, it didn't do a whole text reading of the act. And the only the broader definition of transportation moving someone from one place to another, jells with the rest of the act. So let's assume that I, again, just assume for our given purposes that on board with your understanding of transportation that it's taking so much from one place to another and here the one place is this home and the other places of the school. So transportation in this particular context means taking so much from home to this school. Then the question becomes, what does it mean to take somebody from the home? And would you think, for example, that if it's a situation in which the child, because of this, layout of the home needs help actually getting from point A to point B within the home, just to get to the front door that it could, the word transportation could encompass an obligation on the part of the district to go inside the home to carry the child from point A to point B inside the home and then on out to a vehicle. So, so no, I think that, first of my clients not asking for any services or not, but going on the merits of it, or the hypothetical, I should say. No, I think that under Tatron Garrett after Supreme Court was clear that related services are designed for the child to reach enter a remain in an exit to school building. And I think that, you know, from the door of the residence to the school and all the way back, that's reaching in that exit, that's cool building, but when you're getting ready for school, when you're dressing, eating breakfast, whatever to get ready for school, that's different in kind than reaching school. It's a precursor, perhaps, but it's different. It's not the same as reaching. So, I mean, I do want to add a caveat that I think if a child is in a homebound program, a residential program, then of course related services are required in the home of the residence. But no, when a child is just living at home, like this child, and attends day school, no, I don't think any related services are required in the home. Right. So, I'm assuming a situation in which the leach restrictive environment is the school, rather than the home. And so, it's incumbent upon the district to help get the person to get help, help get the child to school. And then the question becomes, in that situation, if it's necessary for the child to get to school, that someone actually come inside the home to help, then you would say, well, that's not encompassed by transportation because transportation stops at the residence door. Correct. I think the natural reading and the context of the ideas, it's the resident's door to the school and all the way back, and nothing, nothing larger. Additionally, I think it does need to be noted that, you know, the idea does particularly talk about unique needs, and it says it all over the place, it says it in the purpose, and actually, in this particular provision, the 1413G, the direct services provision, it says that when a state like the district decides that it's going to provide a regional or statewide transportation system, that that system is going to meet the needs of the children at service. And because the district has decided to take on all the transportation from the residence door to the school and back, they have to meet the needs of those students. It says so right in that particular section of the act. And I do want to say that, I don't, we're not seeking to enlarge the meaning of transportation. I mean, the adjective phrase is only going to modify transportation. I mean, there's other types of transportation. I mean, there's military transportation. I think the defendant brought up the crime of sentencing someone abroad from the past, or even transportation to a doctor's office, or it's a some other maybe service in the community or event in the community. So we're just looking for transportation, moving someone from one place to another between the home and the school and back, and doing that in a way that's designed to meet the child you need needs. And I think it should also be mentioned that or not be lost that, the IEP team got together. And they looked at this child and they said, what are the unique needs of this child? Well, this child cannot translate himself between the door of the residence and the school bus. And quite frankly, it doesn't matter that there are stairs. For KN, he couldn't do it even if there were a flat road between the residence and the school bus. He's not able to operate his wheelchair, not able to wield, wield himself. His cognitive deficits that even if he could those things physically, he might not even make it to the bus. He doesn't have the judgment that's required to do that. So, I think again that at the heart of this case are the unique needs of this kid. And the IEP team did exactly as opposed to. And unfortunately, then the state said, no, we don't think that that's required, and we're not going to do it. Even though they're policy, when you look at their policy, it says that we're going to provide transportation from the residence to the school and back. One round trip. And actually in the policy, it says we're going to use the address that you provide us when you verify residency in the district and the address in the record is the apartment. It's not the apartment building. So, I think with that, I've made my argument. Thank you, Council. We'll give you a little bit of time for a bottle. Thank you. And we'll hear from the district now. Good garden. Good morning and may please the court, Jeremy Gerton on behalf of the district of Columbia. I welcome the court's questions on any of the issues in this case, but I think it makes the most of the start, which I'm Henderson did on bootness. In our view, this case is moved as to bridges because the student is no longer enrolled there. And the only question really is whether the capable of repetition yet evading review exception applies for the injunctive relief that is sought here. And I think that is an ultimately factual question about whether there's a reasonable probability that the student will be re-enrolled in a public school either charter or DCPS is not already. We heard this morning that it's already enrolled in public the district. So, it's not entirely clear. We have been trying the last few days to figure out current enrollment status. We understand that they have submitted enrollment paperwork, but that he is not yet attending a DCPS school. Unfortunately, it is spring break and all the schools are closed, so we have not been able to confirm that information. But I think the ultimate point is whether it's DCPS or OCE, they would follow OCE's existing transportation policy. And if they represent that their intention is to re-enroll in a public school and not to move residences, we would come up to the same problems that we're encountering here. So, we think that would satisfy if the court is willing to accept their submission that that's her intention and that her intention is to move residences. We would ultimately, in a year or two, be back here addressing the same legal question as to the district. I did want to say one thing about in response to Mr. Cybert's letter yesterday. I, our position is that compensatory education was abandoned at the district level. He represents that they could still seek some sort of compensatory education award for the prior school year. They sought that front of the hearing officer. The hearing officer concluded that no under the virtual learning program. He was receiving a fap and it declined toward compensatory education for the 13 days at that point that he had been under that virtual learning program. And that's at J304 to 306. So, they had the opportunity to appeal that to the district court and declined. So, I don't think there's any award of compensatory education for that year that's on the table in this case or in any future case. So, I think that takes bridges completely out of this case entirely. So, unless the court has further questions on the moodness issue, I'm happy to turn to the merits. If the court reaches the merits, it should affirm the judgment below because the ideate does not provide states or schools with clear notice that they must enter the home or apartment complex, the medically fragile student and carry that student up and down stairs. And I think the best support for this really comes from Murphy, which says, you need to provide states and schools with clear notice. And what is a reasonable administrator? I want to understand this word transportation to mean. And I was, I was comforted to hear Mr. Cybert's concession that they would not ask the school to enter someone's home. That is directly contrary to what they said in the district court at page 732 of the J.A. Where they said yes, if that's what the child needed, you would need to go all the way into their bedroom and get them out of bed because our definition of transportation and supportive services has no limit other than the student's needs. So, I think that they've acknowledged here that there is a reasonable limit on what transportation means. They're drawing it at the front door of the unit. I think Aussie reasonably drew it at the front door, the outermost door of a residence. So, you just, you just, you started by saying that there would be no obligation to go inside an apartment complex. That's right. So, Aussie, if you have an apartment complex where the doors are all external, actually each unit has an external door. So, there's an entry to an entire complex that consists of 20 buildings. And the particular resident lives in the very back building. You're saying that the district could stop at the front at the street at the front and not have to go through the internal rounds. No, sorry. I apologize if I mispoke. Under Aussie's policy, and I think this is very clear, they will go to the externalmost door of a residential building. So, I had been imagining when I said apartment complex, something similar to this where all of the units have internal doors into an internal space. But, yes, if it's something more akin to a rowhouse, where each unit's door faces outside, they would go up to that unit's door because that's the externalmost door of the building and not from their policy. So, if you go to the external door of a unit when it's outdoors, but won't go to the external door of a unit when it happens to be indoors. Let's just take the outdoor scenario. If there's no stairs, then I take it that the district would have somebody go to the front door and suppose they're in a wheelchair, the child's in a wheelchair, and then the representative would get that child and wheel them to the awaiting vehicle. Yes, under Aussie's policy, that's what they would do and I think that's relatively common. So, but then if the child, for whatever reason, can't be kept in a wheelchair, say because they're stairs, then at that point, it's not the transportation doesn't cover going to the front door if you're taking them to the bus because you just said that if they're in the wheelchair the whole time and it's the pathway without stairs, it would be covered. So, what then takes it out just because there happens to be stairs. So, I think that there's two issues and your question goes to only one of them, which is the stairs and if whether or not they would need to physically pick up the student and carry them. So, that's one of that I think that the word transportation doesn't extend to and then the other one I'd issue in this case, but not in your hypothetical, would be entering into a residential building either the lobby of an apartment or a unit and that also we think is outside the definition of transportation. So, but just focusing on the carrying aspect, I don't think any reasonable administrator reading the idea and saying, well, we need to provide a transportation system for students with disabilities. That includes picking up physically with our arms, a student, medically fragile has a lot of special needs. Even though even though it would encompass picking that student up at the exact same door, the exact same distance and wheeling them. Yes, and if there's a way to navigate between an accident, I mean that's not the vehicle. I mean your your brief talks about transportation as has to be in a vehicle. Right. I think the wheelchair becomes one vehicle and then the van becomes another vehicle. So, I don't I don't think our brief was intended to say that there's nothing beyond a vehicle. I think that's the core of the definition is vehicle transportation. When we talk about department transportation or school transportation, we're talking about using a vehicle. I think Ossie's gone a little bit beyond that and said we will escort the student from the external most door. Right. You know, they're getting them to the vehicle as part of the transportation because you're picking them up at the door and you're getting school and that might entail wheeling the wheelchair from the front door to the vehicle and raising it and making sure the child safely onboarded to the vehicle. Yes, under Ossie's policy, yes. I think there are other school districts that might draw a line at the curb or at the bus stop and I don't know whether that would be whether that would be going as far as the idea requires, but Ossie has established a policy that gets you to the external most door of a building. You think it would be a reasonable understanding of the IDEA that all the district has to do is go to a bus stop. So there are certainly schools that do do that. The district doesn't have bus stops because the only buses they operate are through Ossie and so they'll go to the you know, closest curb or closest parking spot. So it's really not an issue here. I don't think the court needs to address kind of that. No, no, no, no, no, no, no, no, no. That's some of the district's position on that. So just to test out your theory. So if the bus stop is a mile away, then under that understanding it would be the parents obligation to somehow get their child to the bus stop and that would be all that transportation. I think it would be a much closer question and I think the distance between the residents and the bus stop would be a factor the court would consider. I don't think any court has applied to that question. And if the bus stop is really inaccessible to the family miles away, you know, then I think you have a question of are you really providing transportation at that point. So I think there are limits and again, I think this all goes back to Murphy, which we think directs courts and administrators to use their common sense about what is necessary for the student and to draw reasonable lines. I think other lines that courts have recognized include requests to transport a student outside the school district because of a custody arrangement and the eight circuit and Aussie who said no, we're not going to require schools to do that. There's other cases where parents have asked, we want it to go to, then to go to a different address because on such and such days, they're with this parent. And the court said, no, you can just provide, you know, neutral system. I mean, how many of these questions really relate to the meaning of transportation versus a determination about what is required to assist a student, you know, to benefit from special education? So I think we were to determine that transportation included the act of something like carrying. What there still be, you know, a further determination that we'll be necessary about whether that was required for the student to benefit from education? Yes, I think there would be and not sure that's really been explored in this case mostly because of the students who needs here, he wouldn't be able to navigate himself. So I think we've focused on the definition of transportation, which we don't think, I mean, I think even Mr. Cybert's argument acknowledged has reasonable limits. You have to draw a line somewhere. And I think if you just do that, what does the student need to navigate, then you're all the way into the students bedroom on the second floor. And you're requiring schools to enter people's homes, get them out of bed, and I don't think any reasonable administrator would think that's what the line is. So I'll see has, you know, to done a lot of work to consider where a reasonable line would be. And it said, out or most sort of the residents, and it said, we're not going to pick up and carry students, and we're not going to do something we think is unsafe. So you're not disputing that the need part of it is met, you're just disputing whether transportation is, it's as far as that's right. And I think even if, you know, we would have determined that the act of caring is transportation, we wouldn't need to remand for a determination about what was required to assist the student. I think you would need to determine that the act of caring is transportation, and I think you would need to determine that transportation extends all the way to the unit door. And then I think you'd be presented with the question under 1413G of whether the district has reasonably defined the scope of its transportation services as a related service provider. And in our case, I don't think even Ms. Puranwell's brief contest that the district has drawn a reasonable policy, and defines Aussie services. And so in that event, if the idea requires the service, then it would fall back on whoever the LEA is at the time we're talking about it. We could bridge it presumably in the future. It would be D.C.PS. So even under that scenario, the district, Aussie would not be responsible for that. The next is the question of, as between the district and a school, right, it's not a question as to whether the need part of the, so you can see the need part is met. I think given his needs, I don't think there's any been ever been any dispute about his particular context. In this particular context, I'm certainly not conceiting that any time a parent asks for something that there's no inquiry into the needs, but I think with this particular student, there's extensive evidence that's never been contested about his severe cerebral palsy and other needs that would demonstrate that he would not be able to navigate itself. So yes, for this case, I don't think that would be necessary, but I do think it would invoke the 1413 G question. And I think just one other point on what we're thinking about when we look at transportation, we point to a number of other sources that are consistent. We think our definition, including the ADA when it talks about transportation systems, and none of those sources talk about lifting and caring or entering someone's home. And I think that those are reasonable lines that Aussie has drawn, and we would ask the court to affirm that judgment. Less the court is any further questions. Thank you. Thank you for your argument. Thank you. It's bound. Good morning. Lauren Malm on behalf of Bridges, may it please the court. We agree with the district that the case has a release to Bridges is now moved. I apologize. I was not aware until last Friday that the student was no longer enrolled at Bridges. We had received Bridges have received notice in September late September that the student was enrolled in a private school. When we looked into the private school, it seemed like the private school was not yet operating in the district of Columbia. It was a New York-based school. So it was unclear whether the student was actually going to be attending there, whether this was some kind of future enrollment. So I reached out to the parents' council asking, you know, what does this mean? Is this student attending the school? Did not receive a response? I know that Bridges attempted to reach out to the parent. I'm not sure what response they got at some point. They did. I'm in a role to student. I just was not made aware of that fact. So I apologize for that. As it stands, there's no dispute that Bridges is no longer than the student's LEA and therefore no longer has any role in his education. As a result, there's no effectual relief that the court could grant with respect to Bridges. Therefore, we believe the claim as to Bridges is moved. When Bridges was the LEA, it is Bridges' position that it was in compliance with the law as it relates to transportation. As you've heard, the district of Columbia is uniquely set up with respect to special education transportation. The state education agency has elected to a sum of responsibility for that service for soint to 14, 13G and as such, the state education agency is responsible for implementing that service if it is properly documented on the IEP. Mr. Sibert himself admitted just a few moments ago that the IEP team put exactly as it was supposed to do, which is review the students' needs, document his need for transportation and related supports on the IEP, submit that paperwork to Aussie for implementation. At that point Bridges obligation as it relates to transportation is complete. While the district certainly does have some discretion as to how it provides transportation, that policy and those decisions cannot violate the IDEA or result in a denial of fate. If there is an exception that needs to be made to that policy, as a matter of law, then it is our submission that the district must make that exception. It's also our position that the district cannot abdicate its responsibility once it is assumed. So nothing in 14, 13G preserves a role for the school wants to state decides to provide the service. Similarly, nothing in Aussie is transportation, policy preserves a role for the school in implementing transportation, one that properly documents the need and submits that information to Aussie. So we believe it is clear that Bridges is not liable in this case. Thank you, council. Thank you. Mr. Sibert will give you two minutes for a rebuttal. All right, well to start with the last point. So we agree with Bridges that if you look at 14, 13G, that ESTC does have some discretion. The manner it provides transportation services, but the sentence or the last sentence in this section says that it still has to be provided in conformity with the rest of the sub-chapter, which is section 1411 to 1419 of the IDEA. And that includes the requirement to provide a free appropriate public education, includes the requirement to educate the child and the least restrictive environment with disabled and non-disabled peered. So they have some discretion, but it still has to meet those minimum requirements. Next, I think that the district brought up something about the home being accessible. And I think it's important to note that there's no inaccessibility exception in the IDEA. The district is trying to engraft that language into the IDEA. I think it's the exact opposite. When you look at the blevus 1412, it says, Congress setting, exchange for federal funds states, you're going to provide a free appropriate public education to all students within your jurisdiction. And the state understood that its jurisdiction is going to be the geographical territory of its state. So if a student lives on an island, in the state of the student lives on a mountain in the state, it doesn't matter. The state understood that it was going to educate all these students within the geographical boundary. I think that Mr. Gerden brought up a compet, and I do want to be clear that we received an award of compet at the administrative hearing. And it's important to remember that these claims have to go through an administrative exhaustion before they can come to the district court. So the reason that we didn't bring any compet for the latter half of the 2022-23 school years, because that claim wasn't exhausted yet. And it had to go back through the administrative procedure first. Additionally, I think going back to his enrollment in DCPS now, this child has the right to attend the DCPS school. So even if it is still in the paperwork process, it's imminent that he's going to be enrolled in DCPS. It's not a question of whether they can't deny him in education. He's entitled to it in the district. So lastly, I think I just want to close with what we seek in this case, which is Ms. Piers here, for you to order the district to transport Cane her son between the residence door of her residence door her apartment to the school of us and back, so he can attend school receiving appropriate education with his peers. Thank you, Council. Thank you all, Council. We'll take this case under submission.

K-123-1139, Mark King Gasco at Alp, Petitioners for Suscurities and Exchange Commission, Stubbiset for the Petitioners, Mr. Alvarious for the Witt's Fulmets. Morning Council, Mr. Bissette. Please proceed when you're ready. Morning, Your Honors. Michael Bissette on behalf of the Petitioners in this case. There are three major issues here today. First, the pending motion dismiss for Petitioner Mr. Gasco, the pending motion to supplement the record with the additional denial of form letter submitted by Fenderon Remand. Then, of course, the merits as to each of the Petitioners here. I'd like to first start with the jurisdictional aspect on the motion dismiss. Of course, the Exchange Act for both its jurisdiction when there is a final order from the SEC. Under the Bennett Test, Bennett Bispier, the elements in the final order require that there must be a consummation of the agency's decision-making process. One by which rights or obligations have been determined or legal consequences will flow. This test, the courts have held that it should be construed in a flexible, pragmatic manner. And here, generally, remand orders are not final orders unless that lack of finality is eventually resolved. So, in this matter, Mr. Gasco is portion of the appeal to the SEC. It was remanded for determination by Fenderon as to who issued the re-man to excuse me who issued the denial of form matter. Fenderon rule 13 to a three requires that the director of Fenderon is the person to deny form. And there was no evidence in the record as to whether it was the director or someone else. So, the SEC remanded for the sole purpose of that determination. So, can I ask you about the equitable claims and whether they've been forceded? Yes. So, when I read, we'll 2080 be. It's not clear to me that there are only three grounds for expungement. But it does seem to be the case that the SEC and Fenderon have said in various places for a long time that there are only three grounds for expungement. So, can that context, you know, what a party that is saying there are additional grounds for expungement have to make that quite clear both before Fenderon and then before the SEC. And how if the petitioners here done that? Sure. So, it's our position that it is not necessarily need to be outlined as to what grounds you're seeking expungement of or under. Expungement, it's been widely held at expungement is in fact an equitable remedy. Fenderon, 2080, does not, if you look at the language itself does not outline or state anywhere that you must submit these three, which is A, B, and C, false clearly erroneous, factually impossible. I don't necessarily disagree with that, but that does seem to be the agencies interpretation of how that will works. As there are three exclusive funds for expungement. Right. I mean, I agree that may not be the most natural reading of that rule, but it seems to be the reading that the agency has provided. Well, I think it's telling that first, again, it's not specifically outlined in that rule. And that arbitration forums are specifically for equitable remedies. There are no pleading requirements other than to state sufficient facts in a statement of claim submitted both for Fenderon. So there are not elements that must be met in a pleading like in a state court proceeding. So I think it would be unfair for the petitioners to be held to a higher standard specifically seeking expungement under an equitable remedy when an equitable remedy is necessarily the part and parcel of the claim that they're seeking. Additionally, it's our position that although not explicitly stated in the state of claim to Fenderon that they were seeking equitable expungement. Again, that is what they were seeking, but they did mention specific allegations that the public disclosure of the patently false allegations here and does not offer any public protection and has no regulatory value. That if not expunge customer dispute disclosures will mislead any person viewing the claimant central registration depository record and will not provide valuable information for decision making. And also ask in this the relief section for any other further relief that the arbitrator games just and equitable. If you put aside the kind of boilerplate language in the last part of it, it seemed like the rest of the items that you read they were just add junctions to the argument that there's false statements. Well, I really seem like those were just bound up and acclaimed that under the explicit items that are set out in 2020 80 fall city. Right, and again, it's our position that you don't necessarily need to put in the state in the claim that I am seeking expungement based on equitable principles that the nature of an expungement claim itself is seeking expungement based on equitable principles. There's necessarily a weighing of the equities when an arbitrator or judge or anyone determines whether expungement is warranted in particular circumstances. And here the petitioners did stay under the ABC the falls clearly are on a standards, but we're also stating here in that language I just described that. It's a totality of the circumstances argument here that they're saying, regardless whether it's false this will mislead people in viewing their public disclosure on the broker check record and because of that they're asking for expungement. Yeah, and considering whether this is a new rule that Fenrame that would have to have approval by the SEC. When are you going to help me understand what precisely petitions think is the new policy or interpretation, right, is it about the authority of the Fenrame director to withhold arbitration in this particular context or is the new policy or interpretation. Something about whether collateral attacks are allowed in a finra arbitration, you know, what precisely is is the new policy or or interpretation. So if I understand the question correctly, is it the fact that the director of finra is essentially issuing a blanket rule by passing the. Rule making procedure at the question. Well, that's one of your one of your arguments, but I'm wondering what precisely is the new policy or interpretation that you think would require a CC approval. So here with the director of finra is essentially instituting a blanket policy that says anyone seeking expungement of a disclosure that previously resulted in a prior adverse award is ineligible from seeking expungement in this forum. That is not listed anywhere in the rules and this is a blanket rule that is not contemplated by the plain rules of Fenrame 2080 itself and under principles of equity and as they change that. And it is and I think part of that argument is that the SEC declared that the director was making a case by case determination for each of these occurrences. However, I cited to an occurrence where a prior. The petitioner was able to expungement based on a prior adverse award. So this isn't a case by case or excuse me, not. And I think that's a very important point. But essentially, what the SEC is arguing. Is that the director made a case by case determination, but there's no facts in the record to support any analysis or case by case determination here. Is this just the fact that they were result that the prior or specific idea was that these were impermanible collateral attacks. So is it your position that the the finra arbitral rules or the finra rules generally do not say anything about collateral attacks? Because they do suggest I mean there are rules that suggest these arbitrations are final so maybe it's fairly implied from that that you can make a collateral attack. Right. We're suggesting that that is a new interpretation, you know, the bar on collateral attacks of finra arbitrations or arbitral awards. Well, I do think that the SEC placed upon the director of finra's determination this collateral attack piece nowhere in the denial of foreign letters issued by finra is a state that this was collateral attack on these awards is they just stay. You're ineligible because of this prior award, but has outlined in our brief it's our position that this is not a collateral attack on the award of the relief requested by each of these petitioners is removal of the information from the public database that describes the word broker check and or the CRD that popul populates the information there. It's not seeking to vacate the award, it's not seeking to reclaim any of the damages that were awarded underlying arbitration. It's not seeking to affect that original arbitration award and incapacity other than to remove the public disclosure of it in this database. I've got a point. I want to ask you about the lead, kind of, mark gas go. And I think I heard you say that it was we manned and simply for the director to make the decision. But if you look at footnote 32 of their commission order, it says because we are remaining to finra the proceedings of gas go so for gas go so for. We we serve the question of whether the same analysis that is the non finra arbitration that this arbitration service of Portland performed for gas go. Whether the same analysis would apply and then it says on remand the director should consider that question in the first instance. Now that April 25 letter doesn't explicitly say, oh, by the way, the fact that gas go came from Portland doesn't change the analysis. If we decide that we don't have jurisdiction over Mr. Pascal. What's your position on whether we should remand to let the finra answer the question that the commission told at the answer in the first place. So if jurisdiction is not found then we would request that be remanded and I think that would be the appropriate solution here rather than dismissal of the petitioner entirely. But to remand to address that specific issue, I don't think that. I mean the the SEC makes pretty clear in its decision. What the effect of its order is really stating. I'm not sure what the difference between an arbitration a final arbitration ward in one forum versus a final arbitration another forum would have any impact on the analysis here. But the SEC does make that statement as a footnote in their order. It must feel there is room there to have a different analysis. I think or they wouldn't have said we're not going to reach that issue because it didn't come from finra. Right, and the I'm on remand, finra did issue a new order denial of form order and again, they did not specify any further distinction between. Mr. Gascules arbitration award issued in the Portland Forum versus finra. The again stated that this is a collateral attack on a prior adverse award. And therefore he is ineligible from seeking expungement in that forum. Thank you. Thank you council. We'll give you all time for a little bit of time. Thank you. Mr. Aller's. Good morning your honors and may it please the court all alverts for the securities and exchange commission. Your honors as the commission's brief makes clear this court lacks jurisdiction to consider the petition for review by Mr. Gascules because there was no final order disposing of his application. The commission did not conduct a 19 F analysis that it did in disposing of the remaining petitioners who are properly before this court. And as council acknowledged the commission remanded Mr. Gascules application to finra. Because there is no final order. Asked Mr. Gascules application because this court sits in review only a final orders of the commission. This court lacks jurisdiction to consider his petition for review and therefore it must be dismissed. And on that point you asked about remand your honor. I don't think that this court has anything to remand because the petition is not properly for this court. So I believe dismissal would be the appropriate remedy here and not remand. Well, reviewing you may be right. We're reviewing the commission order and that order as I read it anyway said to finra not only does the director have to make this decision. But there may be a different analysis because it comes from a non-finra. That's right. Oh, that's right. And so I think what the issue here is. Mr. Gascules case is presently effectively still before finra because he hasn't presented. He hasn't submitted an application to the commission for review of finra's order. Now, the director's decision to deny access. Now in that petition, I don't want to speak for what they can argue. They certainly could argue well. Finra's director didn't make that determination. We would like for finra to make that determination or they could request that finra. The director make that determination. First instance. Is he not out of time? I don't think he's out of time for seeking commission review of his of of finra's. Of the April 25th he may be I don't know that necessarily. I think he might still be but he has it to the point is he hasn't brought this to the commission's attention. So there's really no analysis that the commission has done on that issue. And because of that. There's nothing for this court to consider because his his case effectively is still in front of finra because he hasn't brought it to the commission's attention in the first instance. could have been dicenffen . So we surprised him but I would say Technical Committee and Team is also making sense to be coach artists. And so I mean If we were to have a question what is important for the government was that motion has a member of the commission. Why embirted invasive, does this up in New York? April Commissioned Order. So let would give him to about June. And I don't know, I couldn't tell you whether the Commission would have resolved the issue in that time frame, but at least he could have made the attempt to do so, and attempt to kind of then join the petitioners here with the final Commission Order, and perhaps bring the Commission's order resolving his April to any fifth letter in as a related case or combine the two, but he never did that. So we are... I don't want to get into the wild blue honder, but we are an expert. Can you think of why the fact that the arbitration took place in a non-final side making any difference? These arbitration services, Portland and these others, do they have something different from finra or do you know? I don't know your honor. I think it was merely... And again, I don't want to speculate here as to what the Commission was thinking, but if I were to gas it looks like, in certain instances, you have arbitrators that are actually finra arbitration. And Mr. Gaskell's was years ago, I don't know whether it was before the NAST or before finra. I don't know exactly. So I just... I hesitate to say, I'm sorry, I wish I had a better understanding of what the Commission was. This Portland. Yes. Right. But state versus say, you know, this is an arbitrator that is under the auspices. So, but so we believe that the petition should be dismissed and turning to the Commission order as to the remaining petitioners who are properly before this court, the Commission acted reasonably and concluding that the director of Dispure Resolution Services at Finra acted consistent with Finra's rules and with the Exchange Act in denying the... Yes. Excuse me, are the decisions here that were made at the Finra director? Are they a kind of new interpretation or policy that would require SEC approval? No, I... No, not at all. Both with respect to the type of authority that the director can exercise as well as to whether you can bring collateral attacks in the Finra arbitra. Sure. I think these are not... This is not a new rule. I know they've... my friend on the other side is claim that it is. But the rules that, you know, as you alluded to in your questions earlier on, the rules well established that there are no collateral attacks. And I point this court to Rule 12904 being 13904 being which states that all awards are final and shall not be subject to further review or appeal. The first establishes that collateral attacks on awards are not promised. But I don't even take my friend to be arguing that collateral attacks could occur that he could... that petitioners could challenge the merits of the underlying original adverse arbitration awards against them. What? So, so, finality, I mean, in the... in the federal court context, you know, the finality requirement implies some kind of limit on collateral attack. Yes. But there are exceptions to that. And so, there's nothing specified in the finerables about collateral attacks or perhaps situations in which something that looks like a collateral attack might be brought. No, there's nothing specifically saying there aren't. You're not allowed to collateral attack. But I think fairly interpreted each of the rules do prevent such attacks. I think you again look to 13904 being 8312C of finerous rules. States that where there is customer dispute information that is rise to a final award. That information shall be made permanently available on broker check and in the CRD. And do you think that's reasonably and fairly implied by the existing rules? Yes, absolutely. I think also, you know, with respect to the directors authority, that's also a longstanding rule that permits the director to engage and to keep in function to ensure that finerous is utilizing its limited resources in a way that would make the arbitration for them most efficacious and most efficient and preventing collateral attacks on awards that are meant to be final. It is a reasonable exercise of that authority. I think the other thing that you need to keep in mind is that in addition to finerous, which place in emphasis on finality, the Federal arbitration act places an emphasis on the finality of arbitration awards. And I point this chord to 9 USC sections 10 and 11, which provide the grounds for when an arbitration award can be vacated or modified. And the vacator section is section 10 and in the vacator where they allow the award where the award was secured by corruption fraud or undo means or where the arbitrators were corrupt evidently partial committed prejudicial misconduct or exceeded their powers. And modifications arbitration awards in section 11 may be made only where there has been skriveners error or where there is some other error that has not affected the underlying merits that does not go to the underlying merits of the award. So those two provisions express congresses, policy and interest in ensuring finality and suggesting that that goes to the reasonableness of what the SEC did because it is consistent with arbitration act. I am saying that that shows that the SEC acted reasonably and interpreting the rules as they existed and interpreting the framework that congress set up for the review of arbitration awards and that that emphasis on finality makes clear that collateral attacks, even though there is not an express rule that says well you can't have collateral attacks fairly interpreted the rules that finner has established and the rules that congresses set up regarding the review of arbitration awards. Clearly shows that collateral attacks are not permissible and again I don't take the petitioners to be arguing that they could collateral attack, but their argument instead is not collateral attacking the awards because they are instead only seeking to expunge the allegations that gave rise to those awards. But there is a number of problems with that argument and I can see I have 15 seconds left if I may continue on this point if that is okay. The problems with their arguments are threefold the first is that argument ignores the fundamental fact that the original arbitration panels in this case found each of the petitioners liable and that finding of liable liability is critical here because the grounds for seeking expungement go to as Judge Snervasen stated they go to the issue of whether the allegations and rule 2880, rule 2880 states allegations claims or information was clearly a honest and that the person was not involved in the misconduct that was alleged. But by finding the petitioners liable, the arbitration panel in the original awards necessarily made the determinations that the allegations were not clearly a honest. We're not false. We're not factually impossible and that the associated persons the petitioners were involved because they would have to make those determinations if not explicitly certainly implicitly in reaching a finding of liability. The second problem for the petitioners and their arguments that they're only seeking to expunge the allegations against them is that they are actually not a single one of the statements that they are not being a victim of the statement. But by challenging the awards themselves, I'd like to point this for the footnote nine of the commission's brief which begins from page 32 of the brief. In that footnote, the commission details the nature of the expungement request that the petitioners actually made to finra. In those requests, the petitioners were not trying to be a victim of the statement. They did not provide false misleading information. They did not. They did not engage in churning. They had no fraudulent intent. They did not make unsuitable recommendations. They did not violate the federal securities laws. Each of those challenges goes directly to the underlying legal determinations and findings of liability for the federal legal law. The federal law is not a single legal law, but the federal arbitration panels and thus those arguments constitute impermissible collateral attacks. The third one is simply just as a practical matter with the petitioners are arguing for is an unfettered access even decades after the fact to the arbitration forum that they could argue on any argument. Outside of 2080B1 which we think is very frustrating. The MYBRTH TV is very clear at timeline. It is a historical entity to discuss with labor funds or I do have one more question. And it's a footnote again. Tell me what role that a court that has to confirm uh, uh, experiment relief has. Is it just a stamp of approval? Can it, second guess the award of expungement? Well, so I think the court has to, you know, sit in review as, as courts would. I don't think it's a rubber stamp necessarily, but the way that it says the ward must be confirmed. Yes, that's right. So I, this is, this is, I'll try and be very brief because prior to this, prior to this, this requirement being implemented into the rules. Arbitrators had themselves been able to just expunge records without resort to a court. And NSD and now Fynra created this requirement to provide an extra check and to allow themselves to oppose. And the categories in B1, uh, the Fynra said as the commission order, approving NSD rule 2130, which became 2080, uh, NSD and Fynra said that they would not oppose expungement requests where the three categories in B1 were met, but that they would continue to oppose expungement requests to the extent someone to the extent the arbitration panel made findings outside of those three. And so that's where that comes into play. Thank you. Thank you. Court has any further questions? Thank you very much, Your Honours. You counsel. Through the set. We'll give you two minutes for Rebattle. I'd like to use this opportunity to address a few of these points that were made. Um, one is that the confirmation portion, um, that Fynra would not oppose when the law campaigning report can be exposed or nuc'd in GFRIacle. Charityそれ is frequency, recommended under the A.B. and C. standards, that would necessarily mean that expungement is allowed if there are other reasons for expungement, like equitable expungement here. arbitrators attached or the awards that were made in each of these cases. The awards simply state finding a liability jointly and separately for an amount in damages, all of which were significantly less in value than what was requested. There is no specific findings as to, for example, Mr. Gaskell is liable for negligence, Mr. Gaskell is liable for unsuitability, none of those findings are present in any of these awards. So to say that it's necessarily a collateral attack because these petitioners are now seeking to expunge based on any one of these arguments is just not within the evidence. If you look at Mr. Wetzel as a award, for example, the customers were asking for over $170,000 in damages. Mr. Wetzel, along with the broker dealer firm, was found liable for $1. Not a single fact, since it said why he was liable, whether it was the broker dealer, or was him specifically. Additionally, you're allowed to pledge alternate theories of relief in the same claim. Just because Mr. any of these petitioners are seeking expungement under something that the director may consider to be a collateral attack doesn't mean that they're not allowed to seek expungement under alternate theories relief, such as equitable expungement for any of these other that I've outlined previously. Thank you, Council. Thank you to both Council. We'll take this case under such. Thank you.

Next in case number 22 to $95. enthrine? Mr. Denner, are you doing this on a pro bono basis? Yes, sir. As part of the pro bono panel. Yes, sir. Well, as a former chair of the pro bono panel, the second survey, and I'll be happy to have this panel. Thank you. Good morning, Your Honours. I may please the court. Pro say plaintiff Joe Baltis was subjected to years of threats, violence, and isolation, and rather than allowing him the opportunity to argue the merits of his claims, the district court improperly dismissed his claims on initial review and at summary judgment. The record evidence of defendants conduct and retaliation at minimum establishes material disputes of fact that Mr. Baltis should have been permitted to argue a trial. The district courts dismissal of his claims weren't reversal for multiple reasons, and I'd like to focus on three of them. First, the district court improperly disregarded numerous disputes of fact in dismissing Mr. Baltis's retaliatory transfer claim. Second, the district court ignored record evidence establishing that Mr. Baltis was denied due process when defendants failed to conduct meaningful reviews of his administrative segregation status. Third, the district court error in finding that Mr. Baltis failed to exhaust his administrative remedies under the PLR. Finally, my client also strongly believes in his claims pursuant to the Interstate Corrections Compact, and I'd like to touch on those as well. With respect to Mr. Baltis's first amendment retaliatory transfer claim, the district court improperly disregarded the material disputes of fact regarding the retaliatory nature of his transfer to Virginia. Am I right that the evidence pointed in one direction with respect to the causation issue? Namely that Virginia had agreed to the transfer and Connecticut that Connecticut Department of Corrections had also agreed to the transfer even before the relevant protected activity. You're on our, I think there is a dispute fact as to the timing of the purported decision to transfer. Mr. Baltis disputed that fact, including in opposition to his rule of 56 state of head and head, and he had a dispute the fact that there was an agreement between the two prior to his filing. You're on our, there are simply no evidence in the record other than a self-serving affidavit from every evidence self-serving. Trust me, have we bit of testimony of self-serving to some degree in some level? So let's say that we have no reason at this stage to say that it's not accurate. Is there something other than a self-serving affidavit? Well, is there something that we're about the self-serving in it? You're on our, I think the absence of any documentary evidence of the purported decision to transfer as itself relevant here. In addition, there is evidence in the record that Mr. Baltis provided notice to the defendants of his federal claims in October. So even if we grant the defendants that the decision to transfer him was made before the federal claim was actually filed, and the record that the defendants were on notice of that prior. But even to that, that would extend and weaken your temporal proximity argument. I'm not, it would extend the time. That's right, you know, I think the timing of the meal was October 22nd, so it was a couple of weeks, so I'm not sure it's substantially impacts it. And I would further note that this court has found that his bound temporal proximity on timeframes of five and six months. Which is far longer than the roughly one or two months at issue here. I'd also note that you seem, I mean, you have a lot on temporal proximity, and so what you just said, maybe not significantly, but at least expands the timeframe. But then back to my colleague's original question, seems to me the logic of the import of temporal proximity is substantially undermined by the notion that the transfer was started prior to the filing of the claim. You want to go to another thing that I would note is that in addition to the federal claim, Mr. Baltus had at that time pending a Haitiist petition as well, which could also serve as the basis for finding of temporal proximity here. Temporal proximity is sufficient to find a tell it. Was that an argument made before just a shape? Well, as you know, as well as the Baltus two case that was filed in July of that year, recognizing that that would also extend the time as to temporal proximity. That was a case that was pending, including in which one of the defendants that it should hear was the defendant in that case. Well, temporal proximity is sufficient here. It's not necessary to reach the issue because the disprocorp also improperly disregarded, um, subceive, uh, ample evidence that Mr. Baltus had evidencing that his transfer was retaliatory, including statements by Connecticut Department of Correction Officials during his transfer that he was being transferred in order to interfere with his litigation. As well as emails, uh, evidencing a quid pro quo scheme here between Connecticut and Virginia, there's rarely direct evidence of intent on a retaliation claim like this. And here we have an email exact to telling us what was going on between the two states. The district court improperly disregarded that evidence in rendering summary judgment against Mr. Baltus. So I see how that goes to causation and in a genuine dispute, but what about the amount healthy defense, again, focusing on the import of the undermining of the temporal proximity as a result of the transfer being initiated prior to the complaint? I'm sorry, you're on. I didn't call the question. I think the other issues you've raised go to causation with respect to the amount healthy defense, um, the fact of the complaint being, sorry, the transfer being initiated prior to the complaint being filed seems to me an obstacle. Yes, we're out of, we think that even if your honors are not inclined to find on that basis that the additional evidence would have been sufficient, even putting aside the question of temporal proximity to allow Mr. Baltus to proceed to trial on his claims. Unless you're on her to have questions on that, I'd like to turn to the second issue, which is relates to the question of meaningful review of his administrative segregation status. There, the evidence established that defendants did not conduct meaningful review of his status, and therefore failing to afford him to process during the more than 18 months in which he was in segregation. There's no dispute here that Connecticut regulations require segregation reviews that occur every 30 days, and that no such reviews were conducted here. Is there a requirement that Connecticut conduct those reviews as opposed to, or in addition to the Virginia Department of Corrections? You are our first note that under Connecticut regulations, they were required to conduct those reviews, but in any case, while he was in Virginia, you're honored there's evidence that Connecticut was in constant communication with Virginia as to Mr. Baltus' status, that he was in the communication with officials from Connecticut, all of that information would be relevant to the determination. I'd note that I was so glad to say that he was in Connecticut, going to review conditions of convinement in Virginia. You're on our aspect. They both have phones, but beyond that. How's that supposed to happen? You're on our, we think, because Connecticut retained ultimate jurisdiction over Mr. Baltus throughout his entire detention while he was in Virginia, that very responsible for conducting those reviews and... You're on our way to do it. I mean, you make that assertion, but it seems to... I just don't get how that's what's supposed to happen. You're supposed to, what are these supposed to do? You're on the we think that it would be incumbent upon Connecticut to undertake whatever steps are necessary to determine the conditions of confinement, and whether it's appropriate to maintain a defendant like Mr. Baltus here, in segregation from more than 18 months. Why weren't the classification reviews? Why were they constitutionally... Institution? You're on our own factor, this court established a set of factors that must be considered into totality to determine whether review is meaningful. Here, there's no evidence in the record as to... No documentary evidence in the record as to what was considered in those afforded classification reviews. I think... I thought I don't have my fingertips, but they took into account disciplinary history and... Security-related matters, it seems to me that's precisely the kind of thing that Proctor requires. The evidence, apidavit, on this point, states generally as to what's considered during a classification review, but there's no statement in the record of documentary or otherwise that says, here are the factors that we considered for Mr. Baltus during these classification reviews. So general statements as to what may or may not be considered in classification reviews generally is not sufficient here at the summary judgment stage at the least. And do you have... So we're at the summary judgment on this one evidence in the record that would suggest that standard process wasn't followed or that nothing was done or what you're evidence. You want to, I think, first again is the absence of any sort of documentation that these reviews occur. But the affidavit's on this point is to what was considered failed to mention the ultimate question that this Court recited in Proctor, which does the defendant belong should be defendant remaining in segregation. There's no evidence that that overarching question was considered. But isn't just a pickup one that I thought one of the factors was directed at that question, if not in specific terms then certainly in general terms. You know, I think there's a review of the need for ongoing administrative segregation as a part of the Court, you know? I'm not sure that specific question is part of it. I recognize that certain of the factors that defendants' content are considered generally in classification reviews might go to that ultimate question. But there's nothing in the record to establish whether that question was in fact considered here. So that's the ultimate point. So let me ask you, maybe this follows up on just Parker's question, but it's a little bit of a different question. I'll pose a hypothetical. Let's just suppose that the Virginia Department of Corrections system of review is the best in the country. So it's every two days it reviews whether administrative segregation for particular inmate is justified. And it has a whole panoply of different things that it looks at in making it review and it's proctor plus plus plus. And Connecticut engages in none of that review. Can we consider the fact that Virginia is the best in the country in connection with its review and determining whether there's a genuine dispute of fact? I think Connecticut is the state retaining ultimate jurisdiction even in that scenario would be required to conduct a handful of review. I like to think that there's no sort of right line rule that applies here, but I like to think of perhaps a slightly different hypothetical, which is if we assume Mister Baltis was not housed in Virginia, but maybe in a private prison. It certainly wouldn't be appropriate for Connecticut to see its responsibility to the private prison to undertake review of his status because Connecticut is the one that retains ultimate jurisdiction. Now obviously Virginia is a sovereign. It's a very it's a different situation to recognize that, but there's nothing that permits distinguishing the locates the locusts of transfer the receiving prison in order to determine whether or meeting will be. But it may be this goes to your I think you call it your fourth argument the SEC argument. But you know there's a pursuant to contract a or a compact a receiving jurisdiction, an issuing jurisdiction. And they sort of made an arrangement that yes there is we have jurisdiction over this in late. But we have some some measure of responsibility. But ultimately the receiving jurisdiction is responsible for administering where the person is going to be discipline for example and so on. What's what's wrong with that picture? As a matter of the ICC or the so on. You're not sure anything is necessarily wrong with that setup. But the compact issue here as implemented by Connecticut states that its Connecticut's responsibility to retain ultimate jurisdiction. And that inmates are entitled to receive all legal rights in the receiving state that they would be entitled to in Connecticut. And again, not because Connecticut, he's a Connecticut person. We're satisfied that the Virginia Department of Questions just again, empathetically has done everything right with respect to justifying ongoing administrative segregation. You're if you is that that's still a violation of his of his rights is to process right. You know I think it would remain Connecticut's responsibility to start a huge it tells us that is there or is this loose guy so this because this is open in open area. I'm not sure that there's a case directly on point for this issue. But in the hypothetical that you're on our post I think Connecticut could easily satisfy its obligations here by taking a look at the Proctor plus plus plus that process that Virginia has and think, okay, looks good. Well, isn't there on this record and maybe you alluded to this. Some evidence I think I'm about it that Connecticut wasn't touched with Virginia. And it wasn't that enough because there's no evidence that Connecticut undertook that particular analysis. There's evidence that they were in contact, but there's no evidence that they were in contact for Virginia saying for example, hey, we looked at these ten factors. We determined that if you continue to belong in segregation and therefore we're going to keep it there. I recognize that I'm far over time. This is actually you're answering questions, so that's very helpful. When you stop answering questions then it's not necessarily understatement. So I'll ask what you third argument. The third argument relates to the district court's finding that Mr. Bolsa failed to exhaust his administrative remedies under the PRA which was also an error. The operative regulations in Connecticut require transport inmates to exhaust remedies of both the state in which they're housed on this case Virginia and the whole soul of Connecticut. There's no dispute and the district court correctly found that Mr. Bolsa properly exhausted his remedies and Connecticut. Mr. Bolsa also offered sufficient evidence that his administrative remedies in Virginia were unavailable to him due to the threats and violence that he faced from department of course. The district court again rejected this evidence as reportedly too speculative. For example, the district court disregarded Mr. Bolsa's testimony that DOC officials threatened him not to file for the grievances and directed violence against him because the district court said that that testimony allegedly did not identify names and dates on which a threat occurs. Mr. Jefferson's declaration after David did. He submitted an affidavit and this is at, join the appendix of 592 to 594 and this is our top side. Yes. Yes. That's right. Specifically, identified names, dates that all of these things occur. And the district court simply gave no weight to that evidence and instead found the opposite that there was nothing in the record that would support Mr. Bolsa's testimony and found it. I'm sure that. So the district court actually mentioned Mr. Thompson's affidavit and said what? It didn't make a specific finding with respect to Mr. Thompson's affidavit. But gave a general overview and concluded that Mr. Bolsa's testimony was too speculative and conclusive. Well, no. And so you mentioned Mr. Bolsa's testimony. I'm asking was there a reference that the district court acknowledged a grapple with Mr. Thompson's affidavit. I don't recall specifically whether that just a court mentioned it. And I apologize, Ron, I was perhaps wording it a little vaguely. The district court concluded that Mr. Bolsa's arguments in general were not supported by dates and names in order to support his claim that the process was unavailable. The record is I rated reflects that your time was, and I'm not saying a lot of these things, but was an unusually abstractorous, dangerous, violent, and made to every working went was a threat to institutional safety and security. Do you have any constitutional significance? With respect to exhaustion of his administrative remedies, I don't think it does, you're on our. You can have an inmate who hypothetically has done a number of bad things, right? And they still are entitled to exhaust the process as it set out. And here, Mr. Bolsa simply wasn't permitted to do so. And as a result, he was then unable to file grievances in Virginia, and then the district court dismissed his claim by finding that he hadn't exhausted his remedies. Thank you very much. And so on summary judgment, the district court, we think improperly found that the claims were too speculative and conclusive and that the record, or employee supports Mr. Bolsa's arguments. Thank you. Thank you. Thank you. Good morning. Good morning, your honors. I may please a court. Assistant Attorney General Dennis Mancini for the helleys, David Myga, Roland Cook, Angel Kiro, Jackland, Ozden and Jessica Saman. Your honors before this court is an individual who is historically been a, one of the most dangerous and most latigious inmates in the state of Connecticut. He has a long history of, well, before that I should say that he is serving effectively a life sentence and as a result of that has no incentive to follow anyone's rules. So that includes the hehehe. So we are here because there are serious constitutional claims. And the constitutional claims supply to him and to everyone. Absolutely. So, which is just to stress those. I will and I bring that background because it has to do with the, the transfer issues and also, it also goes to the exhaustion issues and and I'll address that. I'll address both of those. With respect to the retaliatory transfer. Well, with respect to the retaliatory transfer, there wasn't a retaliatory transfer. He was transferred because of his long history of abuses in the department of direction. Because of the number of incidents that he had in the difficulty with housing of a Connecticut. What about the seeming background patterns transferred from Connecticut to Massachusetts. And then immediately the state argues that that moods prior claim. And then as soon as that's the space, he's been transferred back to Connecticut. And then he's transferred from Connecticut to Virginia and. And he's been sent to the same pattern. Follows. Right. So that's actually not the way that it happened. He was transferred to Massachusetts. There wasn't argument about about just missing the, the hebius that was here. Well, I guess take even taking a step back from that. All these individuals are individual can have individual capacity defendants. So the hebius was nominally for regards to role in cook. But that was only in his, in his official capacity as a commissioner correction. So these are all individual capacity defendants not necessarily associated with those claims. No, I understand it's not what's in issue, but as background. No, understood understood. And when he went to when he went to Massachusetts, So was the case was dismissed because he was no longer an administrative segregation. That was his claim on the habeas. So that's that's what happened there. It wasn't. And he was happy. He was he didn't make any claims that the transfer to Massachusetts was retaliatory. It was only the transfer to Virginia. When he went to Virginia, he, there was a, the case was raised that he was no longer in Connecticut. But that's not why the case and that's not why both as two is dismissed. Both as two is went to trial and was dismissed because of his conduct before the court. And I did, I did address that in my, in my appendix, the common study made. And again, that goes to his unrulyness to, to follow the rules and to follow the department of the court. Once that case went to the point where he didn't feel like he was going to get what he wanted from a judge. He lashed out at that judge. He also lashed out at a judge in Massachusetts for the letter that he sent to that judge. Following his return to Connecticut. And, and that's also in, in the record that I, that I provided that letter that he sent to Massachusetts for all he was in northern. So all, all of these go to the fact that this, these transfers were not retaliatory. That, the, the, the, the, the, the, the, the, the, the, the, the history goes, and in regards to the Temple all proximity. The first request to transfer him out of state came in 2006 team that with the warden and, and garnered that request was not completed at that time. The request again was raised to, to, to transfer him because the, the issues that persisted. He went to Massachusetts, he came back to Connecticut. While he was in Connecticut, he assaulted a correctional officer. He just, he disputes that he says that he was, he was, defending himself. But regardless, as a result of that, he stayed in Connecticut. But as soon as the, and there's emails that show that from, it's attached to the declaration of attorney, my, uh, from defendant, my, uh, there's emails from attorney, San, a defendant, Sander to defendant, my, uh, that say he's in Connecticut. We're going to keep him in Connecticut. Let's start to look for someplace else to transfer him to is that okay. And I believe that the response from that was September, September 19th or 20th somewhere near around the end of September was already the discussion of, of trying to find another state to transfer, uh, the, the, the, the allegation that, uh, the, the desire to transfer to Virginia, some sort of punishment because Virginia was this terrible place. Also, doesn't, doesn't, isn't worn out by the record. Virginia was the only state that was willing to take him. I was the only state that that would, would be able to accommodate, uh, the remote court proceedings, there was some difficult, difficult, with remote court proceedings while it was Massachusetts. So that was one of the concerns that, uh, was considered when the, the determination to send it to Virginia. So the, the record is clear that the retaliate to, that the transfer was not retaliatory in any way. Which you have to do process. I will. Uh, as the court, as the court had already indicated, I, I think, simply, uh, the, the, the, classification hearings that took place in Connecticut had no effect on his classification in Virginia. Although he was in, administrative, or in, uh, segregation in Virginia for 18 months or whatever the, the state and was, uh, part of that was his own was his own doing. Um, his classification in Connecticut remained the same. He transferred to Pennsylvania initially. Uh, he was in, uh, segregation for a period of time while he, while he did his intake. And then he was sent to, uh, sent to general population who was initially in general population until he was assaulted. And then he went to that restricted housing. After that, there were, uh, he had opportunities to transfer out of that facility or to return to general population. And he refused all of those, uh, and that is in the record. Where's that? I could. So you, uh, so you refuse to go back to general population. He refused to be transferred to a different facility. There was numerous occasions. Okay. It was numerous occasions where he was offered, he refused to sign all those. Those are all in the record. I don't know. With it, does that indicate whether he would be held in, um, segregation in other facilities? I don't believe that the, that the, uh, record reflects that he would not have been held in administrative sort of, in administrative sort of, in other places. But you have a different, you have a different, I can find it. In fact, I just have one moment. Good. If you can't find it, uh, quickly, then, uh, after, uh, your friends, uh, who have bottled maybe wool, you've just provides with this one moment, please. It is, uh, joint appendix. There's attachment used as certain joint appendix, 304, 305, 306, 307, 308, 309, 310, 3011, 312, 312. All right. We can begin. All right. We can begin. We have the picture. Yeah. I thank you. Round three, four, to three, 13, and 14. Those are all the transfer of office that were made to, um, the Shivalta's, which he refused. He refused to sign a few steps up those transfer requests. So, all of that was the reason that he, that he remained in administrative psychation for a thought. So, at least to my mind, uh, there are, you know, maybe, one, two issues, but the two you heard the colloquine with your friend on the other side, um, one is Connecticut's independent obligation to review, uh, and the other is, uh, the classification reviews and whether they satisfy the, as a matter of the scoring, uh, what we, um, have insisted on in part. And, and I'll address that. So, uh, the first thing is that there was a lot of emphasis placed on this wasn't meeting Connecticut's or Connecticut administrative, uh, requirements. And that's, that's not the constitutional floor. The Connecticut administrative directives do not, they're not set constitutional front, uh, do not, are not the basis for a constitutional violation. That's the first thing. The other thing is that, as the court noted, uh, it was Virginia's duty to, to manage him. It wouldn't, it's, it wouldn't be appropriate for Connecticut to tell Virginia how to house this in me. Connecticut does not have the, just like it wouldn't be appropriate for Virginia to tell Connecticut how to house the inmates that are, that are, that are, that are, I don't think, just to be fair, I think, to, to the other argument of the counter argument. I think that the, uh, uh, contention is they, there's gotta be, at least on some reshesement, some showing the Connecticut undertook, not telling Virginia what to do, but undertook some form of, uh, review itself, uh, sep into part from whatever it is that Virginia did. Well, I think the record is clear that Connecticut did do its own reviews. Uh, I don't believe that did any reviews of Virginia. But again, it's, uh, Virginia is in the best position to be able to determine how it made sure of the house in Virginia. Connecticut doesn't know what the, the intricacies of who, who, what, and, and makes her dangerous or what in meter or troublesome. Uh, so what is, what is the nature of the review that Connecticut undertook? Connecticut, I, I believe, just reviewed the, the information that Connecticut had with respect to his, Connecticut, Connecticut. And, and, and, uh, what, just, say noted that even if, uh, even if it was, air, it was almost air because it would not have had an impact on his classification for Virginia. And again, when, when Mr. Paul to survive in Virginia after his initial, uh, intake, he was placed in general population. And despite what his, despite what his status wasn't Connecticut. And he remained in, uh, administering certification in Virginia because of his refusal to, to be transferred. Okay. I'm, I am at the end of my time. If I, if I could just address the, of course, uh, so I'll soon. Yeah, I will address that. Uh, I think that the, uh, district court correctly, uh, correctly assessed that. I know there was some, some discussion about Mr. Thompson's tell us. Yeah, which you address. And I would, and I will tell you, I have, a hard time unless, unless the argument. I understand. So, is one that rests on the miscibility. There's, uh, I'm, I have a hard time. There's two things. So first is that, uh, Mr. Boltis had his own separate, uh, uh, affidated with, with respect to exhaustion. So I'm, Mr. Thompson's, uh, affidated with, wasn't the record. He didn't specifically cite directly to it, as required, uh, for his posts say. But he has, he's a, he's a very experienced, he's a very experienced litigate in your honor. I, I think, I think so, but understanding that, he is, he is very experienced. The second thing is that Mr. Thompson's, uh, affidated itself is internal, and consistent. And one, in his, tight statement, he indicates that, uh, inmates in the, in the restrictive housing unit were unable to communicate with each other. They were unable to talk to each other because they were, uh, in cells that were, uh, and, and if I can find it, find the exact, Partly I'm speaking about what he said that inmates were in, cells that prevented them from communicating with each other, but clearly he's able to communicate with the turn, with plaintiff, uh, politics. So that, that part doesn't really make a lot of sense. There's also the issue that the, uh, which, uh, should, you know, that Mr. Boltis had filed the separate lawsuit in Virginia, uh, claiming, uh, retaliation and threats by, uh, Department of Correction officials down there, and that court also disregarded those, those claims and he did it, uh, Judge Shade did address that in his brief. Did Judge Shade just have to remind me somebody? Did he specifically mention, uh, Mr. Thompson? He did not, he did not say no. And, uh, so, uh, and so he did, so he did, he did refer to the internal, in consistency. He did not. He did not. But I, I would like to point it out if I could. Yeah. On 593, so, uh, paragraph 14, while an RHEU, I began to speak with Boltis and then it continues. And then in 24, he talks about, uh, the conditions and restrictions, experience and origin, pod or inclusive, but not limited to, and the third line down absolutely no social interaction, or activities of any kind. And then he says, uh, total five outside recreation cages and closed by inch, inch thick, plexiglass that makes it impossible to socialize or interact with peers and just, and had Jason cages. So he says that he's not able to communicate with other individuals, while he's in our issue. But clearly, but then previously says that he is, that's terrific. Terrific, terrific father for cross examination. The question is on somebody judgment, whether he is said enough, or whether this is enough, uh, to, uh, create or generate a genuine, dispute of fact on exhaustion. And there's a reference, you know, uh, just say, it's great judge it in my view, um, uh, says that, uh, one, one basis for, um, uh, rejecting the exhaustion issue, uh, and granting some resuzement, is that it's, that, that the claims were too conclucary, the argument was too conclucary, and that the facts, um, as related by Mr. Baltis, uh, were too conclucary, but you look at, yeah, there were no names as so on. You look at Mr. Thompson's affidavit, there are names, uh, there are, um, you know, specific places, um, uh, and it talks about a hit listing me, me, so, uh, a statement against interest, uh, Fort Fort A hit on an inmate, and I think, well, in, that is, that seems to be material to me, and the fact that just shay doesn't even mention it, uh, makes me wonder, appreciating that it was not necessarily raised, uh, for biophozy, other than, makes me wonder what, what are we to do with this? And so the extent that you are relying on internal inconsistency, what we've said is that we only reject, um, an affidavit, or testimony, when it's unequivically, inconsistent with something else that the person has said, I don't know the disease qualifies, so, to help me. Again, I think that the court takes, uh, takes, there's, there's already a disbelief in, in these kind of retaliation claims, because they're so easy to fabricate. Uh, and I think that's part of it. There's also, although these, there's discussion about, It's, it's, it's, it's, it's maybe easy to fabricate like we can standards for years. But it's a little unusual to have another inmate who submits an affidavit saying, yeah, I was listed in two for a hit. And then there's actually an assault. This didn't mean it's not the one that could there was an assault. But then there's actually an assault. This, well, this statement was made act of the act of the data that assault. So I mean, I don't know what his motivations were, assuming that these statements are, I don't know what I certainly can't speak to his motivations. Obviously he would have had an information about that assault. I don't know who typed up this affidavit or how it was, right? I know those are not necessarily questions before the court at some of your judgment, understand it now. But there's, there's also general claims. There's not necessarily talking specifically about him filing grievances. And I'm not saying that if you talk about pushing paper or filing lawsuits. And there also says, at 15, while housed in RHUB416, next to Baltus in B415, I repeatedly overheard unit manager Miller and Lieutenant Lambert threatened Baltus and instruct him not to write anything up. That's J-A-593. That's a threat for five weeks of thing. There was an ask, I asked, well, I suppose that's the answer. He also has to demonstrate that he was actually in fear. That's also another thing that he asked in the demonstrate. That his fear was reasonable. And that the fear actually prevents it. Well Lieutenant, the unit manager threatening him and instructing him not to write anything up is, are we supposed to do this in a light paper for part of him? But, but the, not was standing at. He still has to demonstrate that he was actually in fear based on these statements. Even if, even if somebody had said those things to him, he'd have to demonstrate that he was actually in fear for me. All right. Okay. And the other thing that I do want to address is that the exhaustion issues only dealt with a small subset of the claims. No, I understand that. Yeah, it's, there was only, and all those claims. And, and over arching, over arching with all these claims is that the Connecticut defendants didn't have any personal involvement in any of the issues that took place in Virginia. So that relates to the, so if we were to disagree with you about, or with your shame, that's really about the conclusion of the statements and so on, then you're saying there's a separate issue that we need to grapple with, which relates to Connecticut's involvement. There, Judge Shade didn't, didn't reach the merits on those claims. He didn't reach the merits, so we would send, it would go back to the district court to make that determination. It would go back to the, and that's the first, there's a, the sixth Amendment claim and the, the, in, the Virginia claims, the ones that were, were related to the exhaustion were a first and sixth Amendment claim arising from implementation of Virginia's DOC procedures and an eighth Amendment claim related to a safety concerns while housed at the Red Onion state prison. Those are the two claims. The other claims, maybe, is this, is this the sixth Amendment claim? There's a sixth Amendment claim, yes. So, is the first Amendment, he's got a male claim? The male claim was a, yes, the male claim. So, the first Amendment, male claim, six Amendment claim, the Amendment claim has the exhaustion. Those were the ones that, that, that, that, that. The whole relationship didn't reach the merits because he, he got to exhaustion. And those were all claims related to his confinement in Virginia, which, again, it was, we raised the issue at, at summary judgment that they were, now, there's no personal involvement, which I'll, which I'll show you, and reach that, he didn't reach that, because he, he, just, just, to expose those claims on exhaustion. So, we would, we would still say that there was no personal involvement, they would be entitled to qualify the immunity on those claims, but, which I'll, which I'll show you, and that, that's an overarching issue that there was no personal involvement from the Canadian fans, I'm, I'm, I'm most of these claims. And at, at this point of my one time, the list of court has any additional issues. Thank you, sir. Thank you very much. Thank you. I think, defendant's arguments, both in the briefing, and today, underscore exactly the issue here, which you're on a correctly known, which is what summary judgment here. There are numerous disputes of fact, the defendants repeatedly dispute the facts, as Mr. Baltis asserted them, but on summary judgment, we have to credit his arguments, and the district court simply failed to do that. I want to touch just briefly on each of the claims. First, with respect to retaliation and temporal proximity, I just want to lay out the timeline, because I know it's a little bit confusing here. Defendants contend that a decision to transfer him was made in early November. Mr. Baltis disputes that, but even if we assume that's right, prior to that, it will be roughly three weeks prior to that, and this is it, J-A-473. Mr. Baltis provided notice of his federal claim. So we're talking about a three week period from the decision to transfer if we're contending that that's irrelevant to him. And in addition, he had a previous claim that was pending for approximately five months prior to that. With respect to the self-serving affidavits, I recognize your own acknowledged self-effidavits are always self-serving, but the jury was entitled to discredit those self-serving affidavits as this court found in ID services. In that case, it's cited in our briefing. Third, the jury is entitled to consider. So I'm interested in this to your friend. So we could have this discussion about some adjustment, but it, you know, there are going to be self-serving affidavits, but if there are unruppated on the record, that that is a basis to grant some adjustment. And so, regardless of what a jury could do, and I don't know that I saw any evidence that rebutted that affidavit. You know, I think there's substantial additional evidence, including, for example, the statements that were directly made to Mr. Baltis. The court pro quo email, which is at Joint Appendix 57.02, as well as Mr. Thompson's affidavit, which stated that one of the assaults against Mr. Baltis was for him being called a rat. So I think all of that evidence would go to this question. With respect to administrative segregation, there was a defendant about that Mr. Baltis was given the opportunity to be transferred elsewhere, which he denied. And he pointed to Joint Appendix approximately three or four to three, 14. Nothing in those transfer offers indicate that Mr. Baltis would not be placed on administrative segregation wherever he was transferred. So I'm not sure that that helps defend and hear established that they conducted meaningful review. With respect to defendants' arguments that violation of Connecticut's regulations are not basis for a constitutional violation, I think that's not quite the argument here. Rather, and this is consistent with the court's findings in tellier, the failure to follow Connecticut regulations is evidence of a lack of a meaningful process. It's not in and of itself the constitutional violation. Thank you. Thank you very much. We'll resout decisions. I can vote. Next.

Yes, thank you. Thank you both. Our next argument is fine soon. And in the sun in the lower case number 23457. And Mr. Zeror, can you hear us? Yes, sir honor. Oh, terrific. Well, I understand that you've reserved one minute for a battle, so you have four minutes to make your case before us. And we have obviously Mr. Zeror, the benefit of the documents and materials at briefing that you submitted, so we've read that. Okay. Thank you, honor. I just like to bring out the most important thing here is that you have a, I say, let again, who filed the complaint, which I believe had more than enough grounds to allow it to go through discovery and prove the issues raised in the complaint as so ordered by Honorable Judge Sling. And again, I think one of the main things that we're talking we're discussing, filed a PIL, I apologize to my throat, is that issues raised in a basic of federal issues. That only a federal court has jurisdiction to actually adjudicate these matters. Although they intertwined with the state, I think there's a confusion here or at least there's a mask of confusion trying to take away the legitimacy of the actual complaint. And I have brought out many sections in there that the federal cases are only to be exclusively adjudicated by this court, by the federal court, not a state court. Besides that are the issues of the timing, one of the issues brought in the court is that a lot of the documents that were brought to the federal court were independently different than the state court. And we're only filed at the bankruptcy level, well after the final judgment or the appeal filed in the state court, and those different documents are notes. And the note that I'm speaking is a five, five in dollar note. So it's very severe and very significant. I'll address the differences and discrepancies throughout the notes. I'll set it in just specific cases that were almost mirror cases. And in fact, this complaint, again, at a complaint level, as far as I'm concerned, far exceed the documents that allowed those cases to proceed to continue from a complaint. And one in fact, in my petroleum made a copy of the actual complaint, the judge even allowed an amended version of their words. And this evidence, I believe, is far superior than the evidence presented in that court. The timing issue, understood as mentioned in the brief, I believe, and it's mentioned also with Judge Drain, is that what on the court, or violation of the state, one would be triggered by the other, of course, if it's wrote on the court, has no time there. And I believe that, again, as a complaint, if far exceeded that level to proceed. I believe in directly Judge Drain did actually concede to that. It wasn't as abstractly stated, what specifically he expressed. But in the same token, he refers back to Porgis, which I believe is not, not so because again, it's federal issues and federal statues that I'm trying to adjudicate. And to have a treatment for those reasons. I believe Council even disputed the case of Chevron, which again, refers back to fraud. Can you speak up? Can you speak up? I'm sorry, I'm more loudly. Thank you. I'm sorry, you run. Let me see if I can raise the volume, too. Try again. Is that better now? No. Maybe a little bit better. Okay. A little bit better, I'll speak a little bit later. As I mentioned that Council doesn't even address the Chevron case that I mentioned. And it's specifically states that the state court has no issues, has no jurisdiction to adjudicate the federal findings that I'm saying that were produced at a bankruptcy court after the closure of the state court. And in fact, these documents prove, and again, we're not dealing with the state court, but who the documents were different than what was filed. The second one, as I mentioned, is that although John the train did in one sense this regard all the facts, I believe that in the complaint, I'm not even sure the degree of all the documents that were presented were properly evaluated. I think it was very short to the point and address the purchase case that did not consider the evidence. It was very significant, and I believe it was a miscarriage of jet of jet of jet with me. I've just this to allow something like that. So, and I think that we have your agreement, you have reserved some time for a buttole and we're here from opposing the opposing side. Good morning, honours and we're Ryan Skippin from the Calabaray Marli Berkshire, so I'm behalf of the appellate JPMorgan Chase bank. Mr. Zeror's complaint is very familiar to chase the allegations he makes about forged long documents about incorrect long documents. His challenge is to the validity of the assignment of the mortgage to chase. These are issues that Mr. Zeror is then litigated within the foreclosure action. He also raised that month, it's appeal from the judgment in the foreclosure action. And I'm listening to Mr. Zeror's argument, he really didn't address the reason why his complaint is not allowed to go forward here. There were a few reasons actually, but in the bankruptcy court, they ruled that his claims are far, far raised to the Kata. And the reason the bankruptcy court ruled that, which was with which we had read, is because his allegations and the relief he seeks it overlaps with everything that took place within the foreclosure action. He seeks that the mortgage be avoided. I mean, the mortgage would have to reattach to the property of the judgment would have to be vacated for any of that to happen. The relief he seeks is complaining he lost. Rental from the property because the property was sold before closure sale, he's complaining about the eviction, all the relief he seeks goes to the foreclosure judgment. And it's clear the parties are the same, it's clear that the state court judgment was a turn down of people long before he filed this lawsuit. And therefore raised you to Kata applies. You could also take this in a different direction, which is what the district court did in deciding that refurbishment, abstention applied. If you look for fact, there's for refurbishment abstention two-ups. I clear Mr. Zoro, lost in state court and that the foreclosure judgment was a turn down of people. Am I right that if Ripper Feldman were to apply, then the dismissal would necessarily have to be without prejudice? On a jurisdictional ground, I believe that's the case, you're on. And as you pointed out, Mr. Svetta, the just dream, the bankruptcy judge, dismiss it on Mr. DeKaligrains with prejudice. Was that also right? That is correct, you're on there. So what do we do with that? We, I think the race due to Kata, dismissal should be affirmed because I think the doctrine clearly applies here. When you look at the allegations, that Mr. Zoro is making, not he tries to couch it a little bit in the bankruptcy context. These challenging cases proof of claim, he says he's challenging an alleged state violation. The proof of claim really doesn't even come and claim there were no big distributions in the bankruptcy. So the case was not even paid out after the claim within the bankruptcy context. But is it correct? So do we affirm the district court judgment, which I think is before us, I think. But on a different ground, or is it that we look through the district court decision and affirm the bankruptcy judges or courts judgment on Mr. DeKaligrains? We do. The last thing we are on here, you look through the district court and affirm bankruptcy courts judgment on the right of student Pata graphics. Any further? I don't have to court as anything else for me. We'll rest on arguments in our brief. Okay, Mr. Zoro, you've got one minute for a vote. Okay, you're on. I certainly understand what he's bringing up, but again, that's not the old game. All those complaints is a little bit, I would quote a little bit all over the place with a lot of allegations. But I think there's significant points back to federal statues that can only be attached to a federal federal jurisdiction to apply and to use. As far as the state action, we're not trying to recoup necessarily anything that happens to the state court, I don't believe we can. But based on the fact that the evidence brought to a bankruptcy court, the documents that were different, we believe that there were documents, originally brought to the bankruptcy court, which we believe is strictly a jurisdiction. I'll think that a federal court can adjudicate and again, it is complaint. And as mentioned, that and throughout the brief that in most cases were a prolett again, it should be raised to the strongest arguments under. I think that's a little bit of a little bit of a little bit of a little bit of a little place, but I still think it remains the facts are significant. It is a complaint, I believe if discovery is to complaint is allowed to proceed. I can more than provely make my case and allow to proceed. Thank you very much. We'll reserve the decision which just means Mr. Zoror that you'll have the decision from us at some point after today. That concludes today's argument calendar and I'll ask the court and deputy to please adjourn.

to hear our argument in case 23, 63, 44, United States, Beatriceco. Good morning. We need some oil. Good morning, your honors. Andrew Geering from the Federal Public Defender Office for the District of Connecticut on behalf of Defendant Appellan John Trasaka. I would like to spend my time this morning, principally, on the sentence, the District Court imposed on Mr. Trasaka, and why when the record is considered an instantality, a 96-month sentence was substantively unreasonable. The sentencing transcript leaves the reasonable reader and the public with the impression that Mr. Trasaka received an outside sentence because he elected to go to trial and because he could not pay restitution. And then his code defendants received lenient sentences because they pled guilty and accepted responsibility. There's no dispute about the guidelines calculation in this case. Mr. Trasaka's guidelines were 33 to 44, 41 months. The sentence imposes more than twice the top of the guidelines and very nearly three times the bottom of the guidelines. I cannot recall the case in our district where the sentence was more the top of the, more than twice the top of the guidelines range. Upward departures are extraordinarily rare in our district, even guidelines sentences are becoming less and less common, as most defendants generally receive below guidelines sentences. According to the 2023 source book, only 22% of defendants in our district receive guidelines sentences. Last year, the district court repeatedly commented on your points failure to accept responsibility during contrast to code defendants via it. But at the same time, in the same breath, he would repeatedly say, well, I don't take that consideration when I'm sentenced to God. How will lead up the handle that? Throughout the sentencing, proceeding your honor, there were numerous remarks from the district court indicating the Mr. Trasaka was penalized for going to trial. The beginning of a sentencing, the judge emphasized that his code sentence had all played guilty, and that he had not something to do with it. That's what I just said. I mean, it's pot marked with comments about your client's failure to accept responsibility. The, it's a bunch of judge, or you just vote. That quote is attention. But he would also say, well, I don't take that. He has a right to go to trial. So on the one hand, you should have accepted responsibility on the other hand, yet the right to go to trial. How do we handle that? Well, I think you're on the Mr. Trasaka's decision to go to trial and maintain his innocence was linked to the sentence in the court with his mind to extent that there was inappropriate considering that there was no obstruction, Mr. Trasaka did not testify a trial. And at the disparity between the top of the guidelines and the sentence imposed is just cannot bear. It's too large to bear just the weight of that decision. There has to be some other reason to justify a sentence. This is the reason to stop there, in case, is there a case, actually, I was at the podium. Many, many years ago, making your argument on behalf of the government in connection with a downward variance and making the exact same argument in the response back from my future colleagues was well. In Ford cases, there is no similar. Is there a case to be put this way? We're in a Ford case. We have determined that a sentence was substantively unreasonable. As opposed to a case involving child pornography, for example, or terrorism, is there a case involving a set of facts like this where a defendant has gone the trial and been convicted. And the judge has imposed a significant upward variance that we determined was substantively unreasonable. I'm not aware of such a case here, honor. I think perhaps part of the explanation is that upward departures are exceedingly rare and that a defendant, when a defendant elects to go to trial, the judge tries to avoid the appearance of a trial tax. And in this case, we have a sentence again, three times the top of the guidelines. That's what it looks like. So there were other factors. And I'm just really asking a question that seemed to motivate the upward variance, including the fact that maybe the most salient fact, that the Ford was in connection with or arose rose in a midst of a pandemic, where services and pandemic, or COVID-19-related products were at a premium. And your client was convicted. One, I think, could get out of you of exploiting that. And why isn't that the basis by itself for a significant upward variance from this between case? It's a COVID penalty, not a trial penalty. I think you're on a, if the court had similarly treated Mr. Trasako's code of sentence for which that was also true. It was a COVID for all the funds were intended for COVID relief. Then it would be a different story. But here, when we are looking at the disparities and the sentences between the code of sentence, I think it's significant that the court only cited that as a basis for an upward departure in Mr. Trasako's case. Well, there is a slight built-in penalty, of course, even under the guidelines. But it's also true that if someone does not, even its set-in saying, except responsibility, which is what I think happened here, would that be a basis for an upward variance? It could be your honor. I think it a significant fact here is that Mr. Trasako had maintained his innocence even past the verdict. We had post trial motions, which the court did not deny until 830 p.m. the evening before the sentencing at 10 a.m. the next morning, Mr. Trasako could have reasonably expected that the court would grant those post trial motions. So I think the court was perhaps expecting a bit too much in demanding full-throwed acceptance for Mr. Trasako given his arguments as good faith arguments as to why the jury's verdict should not stand. And I think that's linked to the question of restitution to the extent the court seemed to expect Mr. Trasako to have paid up for a restitution while he was still maintaining his innocence. And of course, if he had done so, the government could have pointed out, how could he say his innocence, his paying restitution, his acknowledged, some extent, that he owes this money. And of course, restitution is the other issue in our brief as far as the basis of what the state had done or not for the courts up the departure. And it's just a very unusual case in that the district court seemed very preoccupied with restitution. Mr. Trasako, peculiar notice on the docket in December asking the parties to state what funds they had available for up-front restitution at the beginning of the sentencing procedure. Mr. Trasako, I'm just too excited for seeing your up-front kinetic, I don't recall seeing that before. I was a district court judge who never could have never did that in a city in the morning. I had never seen anything like that before. I almost see what was he thinking about why we're dealing with restitution at that point in the proceedings and requiring people to pay it. What was he doing? I'm not sure you're on it. I think maybe something that's more common in state court practice, but in federal district court, it seemed very unusual. And when considering conjunction with remarks about restitution throughout sentencing, suggest that Mr. Trasako's failure to pay up for a restitution was driving the sentencing. It's absolutely wrong. Something in the record that we're missing why is this a Muslim? William's what Williams, my, I can't speak for my call. It's my clear takeaway from this record. Williams had it out for you, Client. Is there something we're missing in the record that accounts for this hostility and you'll treat when you're Client? Does something that we're not seeing? You're on it. We were shocked throughout. And I think that's why we highlighted the remand issue because that again is another irregularity. Right, the court ordered Mr. Sako, remanded first after he was convicted. He was released a couple days later after we provided additional shirt surries. And there were no issues between the end and sentencing. But the court ordered his immediate remand, which is extraordinarily uncommon in our district for a defendant who's been at liberty and which we almost never seen fraud case. It's reason for reminding him on the spot. What was that all about? I think the court stated that since Mr. Shushasako had received a lengthy sentence, things had changed, but it wasn't clear to me from the record whether that was related to risk of flight or danger. The community does not like that. Do you even keep much preferers self-serene? So I couldn't figure this out. When I read this record, I kept saying, it must be something going on here. It's just not disclosed in the record. It would have made a lot more sense to allow Mr. Shushasako to self-serender because he was reminded immediately. He went to California for reasons that are unknown to us. It took him a while to transfer it back to a camp in the Northeast, whereas had he allowed just self-serender. I think we would have gotten the designation that we wanted. He wouldn't have been able to self-serender to camp. And he incarcerated since that remand. Yes, sir, honor. Since the date of sentencing, a little over here. So the remand, of course, means he didn't have the opportunity to say goodbye to his friends and family. No, your honor. And because the advice we give our judge must have known that. What Matt, what motivated this? We have checked it strangely, below your honor. We made the point that we advise our clients based on what we see, what is common practice. And based on that, although, of course, we tell our clients that it's up to the judge. And we don't know what they're going to do. Did the government seek remand at the following conviction? The court inquired at as to their position and the government stated that remand would be appropriate in this case and supported by those. No, did the government ask for remand before the judge Williams? No, I asked government about it. No, your honor. I don't believe so. I think the sentencing court launched into the remand issue right after imposing sentencing. And only afterwards, provided an opportunity for council to be heard. OK. On both the trial penalty question and the restitution question, call it grades this a little bit. But on both, we have expressed statements from the judge refuting that proposition, quoting on the restitution. And he says, he will not receive a greater sentence for any inability to pay restitution. So to conclude in your favor on that argument, we would have to assume what that the judge was making a false statement there, or how would you propose dealing with it? The district judge expressly disavowing the basis upon what you build your argument. We're asking a court to look at the record and to tell it to know other remarks by the judge that we have pointed out when I'd like to highlight page 19 of the sentencing transcript. The court notes, the way the Mr. Fosaco is distinguishable and not in a good way from the other code of sentence, each code offended accepted responsibility and did so relatively quickly. And as we pointed out, the sentencing and the relatively quickly part was not true for Mr. Demosa. But throughout the sets of the transfer, was that in responsible, a massive, more open-ended question? What was that in response to? An argument pointing to the code of sentence. And saying, I think that he deserved a somewhat similar sentence. Is that wrong? Is that right? We were seeking a minor role departure. And that extent, we certainly tried to distinguish Mr. Dusaco from his code of sentence. And so that statement that you read from Judge Williams was in direct response to the argument. Is that a fair characterization? I don't think so, Your Honor. It appears in the transcript before the defense made any presentation while the court was engaging with the government. The court started articulating its reasons for the sentence during the government's presentation, which seemed strange before the defense that even had an opportunity to be heard. I'm not sure it was the defense of that. But in the briefing, you made all those arguments, correct? We certainly did try to distinguish Mr. Dusaco from his code of sentence, Your Honor. And I think overall, we showed that Mr. Bernardo and Mr. Demosa were much more culpable to the extent that they were in a position of extreme public trust. They were democracy. Shoulding state represented. All right. We've heard, well, you've reserved some time for a bottle of vodka. Thank you, Ours. May I please a court reminette representing the United States? Your both got line sentence imposed by Judge Williams in this case, a concord with prior case law of the circuit was not so high that it damaged the administration of justice and was supposedly reasonable for at least seven separate reasons. First, as your Honor indicated early on, this was a theft not a money in a bank. This is a theft of COVID-19 funds at a time when those funds were needed desperately by municipalities. All the all the defendants were involved in that. So what distinguishes Mr. Archerosel from the others, including the ringleader who was a public official? That's a very good question, Your Honor. It is a good question. And so let me hear your answer. Two parts answered. We don't have to vet the questions, just answer, sister. There's two things. First of all, when you look at the way the conspiracy's worked, unlike Mr. Bernardo and Ms. Knox, this defendant drove this conspiracy. This defendant, Bernardo got twice as much money as this defendant. I don't think that's accurate, right? Yeah, one hundred, a million, two out of this. My recollection is there's three conspiracy's, Mr. Bernardo and Mr. Demasso in a scheme devised and implemented by Mr. Demasso, stole 600,000 about with the, with the compass and decimance. It was established at St. St. Mr. Bernardo only got 50,000 of that. Mr. Demasso took everything else. And so in the aggregate, Demasso, what's his name? Demasso. The Demasso is running more than one scheme. He's getting a million, too. He gets a fraction of Mr. Trascosos. Mr. Demasso under the facts started to schemes. Mr. Chasoco started this scheme. Mr. Chasoco found out about the scheme. Mr. Bernardo, Mr. Demasso, were running. The judge was entitled to look at the entire course of the conduct, rather than related conduct. He knew what Mr. Demasso had done and he knew how much money Demasso had made. And it was substantially more than this, defended. And he got a fraction of the sentence. He was also a testifying trial. We see how those walk very witness. Yeah. And so he got the benefit of a submission from the government, E.J. that described the quality and level and degree of his cooperation. Yeah, it's the public record reflexive testifying for I think it were two days of trial. But the difference between the code of sentence with the code that your source in the mighty code of 19 is that it's a mitigating factor for all of them. The two of the code of sentence got lesser sentences. It had a lot of mitigating factors and Mr. Trascosos doesn't have neither had criminal histories. Ms. Knox has suffered an abusive childhood and with six months pregnant. Mr. Bernardo was somebody who went along with Mr. Demasso when the coppist he. But the criminal history was fractured into his points. That was already on the table. That's correct, sir. Crummer history is quantitatively calculated. But a number of Mr. Trascosos conditions included in a robbery one and a salt one, I can mean a type which, in the cake of all of violence, they didn't count. And it's, for example, in my sense, Trascosos quote a bankbubber case that the judgment above, right, right, left we twice the top of the range. The, the, the, the, the, the, the, the, the the court says, second circuit says that these factors were important for the criminal history. And that's okay. And that's what Judge Williams did here. Judge Williams had a materially different defendant in Mr. Trascosos and Fungumham. They needed in Ms. Knox or Mr. Bernardo. This was a defendant who lived his life almost entirely outside the wall. This is a defendant with multiple violent convictions. This was a defendant with the last, when was the most recent conviction? For Mr. I can check in a moment, you know. The most recent conviction was in, according to the PSR your honor in 2007 for legally refusing to DNA test with score 0 points. You also had 2006 conviction for the same thing where score 0 points, he had a 2019, 99 conviction. And he was arrested on this one, this charge. He arrested him in, during the pandemic. During the pandemic, you know, I see like a one. Yes, 2020, 2020. Did the government advocate for an above-government sentence? Yes. In the Mr. Supper's case, the government, which is, I agree my colleague, the rare, and I have moved maybe 10 times. I might be clear for one, but I moved the government move for an upward apart from this case. Because the government felt that, upward, that, that provides an upward variance. That's not a departure. Thank you, everyone. Yes, an upper variance. Because in my view that Mr. Trascosos criminal history, the nature of the conspiracy, or he basically, in the government's view, intimidated Mr. Vaswar, Kowerson, into continuing along with the various iterations of the $400,000 fall. But the Vasa was involved in other scams that he, this man had nothing to do with. So the notion that he was coerced into this, is unconvinced to me. Well, the difference between those two, your honor, is that in the other scams in the U.F.I.L. and Scam and the Congress and Investment Scam, the Masha was taking a lion's share in the money. The other two individuals were facilitating it, because it helped to scheme book more legitimate. This is a horse of a different color. This is a scheme initiated by Trascosos who just took all the money, all of it. And he slid on two occasions $5,000 in a Mr. Domasa's pocket. What can you tell us based on the trial evidence of the other evidence? Why is the relationship between Mr. Chasoco and Mr. Domasa developed in that way where Mr. Chasoco was the lead and seemed to have some more greater role. The testimony of trial that Mr. Domasa related to the government's pandok. Mr. this is my recollection. I'm not quoting from the transcript. Mr. Demaso is introduced to Mr. Chasato by Mr. Banardo at a cigar club in Connecticut. Mr. Chasato immediately indicates that he can do some gambling and then that's the individual center that arrest her on. And then everything moves to that restaurant. So the relation and then Mr. Chasato. Mr. Chasato, where that Mr. Demasato is a gambler and has gambling debts or... I believe that testimony was Mr. Demaso indicated he gambled at that first meeting with Mr. Chasato. And so Mr. Chasato provided an opportunity for him to gamble additionally. And he, Mr. Demaso took that opportunity. And was there evidence that the nature of the... fun that we get from the beginning, the nature of the relationship between those two, change your development to give Mr. Chasato a more power? It was a very one-sided relationship and Mr. Demaso's accounting of it in that he would see him at the restaurant and then Mr. Chasato would hand him invoices for, and there are two parts to the Chasato conspiracy, one was LNA, which allegedly provided PPP for the schools. And then once Mr. Demaso said, we're not going to be sufficient product here, we're going to get uncovered. Then switched it to J.I.L. J.L. conspiracy, which was provided UV likely for read a facility that someone was proposed. And so Mr. Chasato was driving all of that. Mr. Chasato was giving Mr. Demaso invoices. And you said, I think, that that's different from the other schemes with which I'm less familiar. Yeah, the other schemes, the one, they were driven by Mr. Demas. Straight up. And what Mr. Demaso did there is he, he was my recollection of the testimony, is that Mr. Demaso started to fraud in West Haven with his misnops who would get a relationship with through a youth violent conspiracy by some of false invoices. Then the mayor put him in charge of all the COVID funds, which is about a million bucks from the government. And then he just really saw an opportunity because he could be the signatory for that. So then he, he and Mr. Bernardo formed a company called Conference Investments and submitted completely fraudulent invoices. Mr. Chasato. And you are okay with him getting a smile upon the risk. Public official doing that. I think the government didn't recommend a sentence as is our practice in Connecticut. What? The government file emotion is behalf. So I think the judge opposed appropriate sentence given more than from the judge at that time. And well, look. He is a cooperator. Yeah. And so you get the government sometimes, society of standard, has to make agreements with people who engage in serious misconduct. Correct. Is it anything? But the judge sentence. I'm sorry. The judge sentence, then you did the judge sentence to death. And the practicing Connecticut is that when we file emotion on behalf of the defendant, we do not recommend the sentence. It's been that way for a long time. So we do not. So the judge had no idea what you thought the sentence should be. Right? The judge, the judge knew that I thought he should take into account Mr. Domassas cooperation and testimony. And the judge, the judge was in a really good position in this case unlike many situations. The judge observed his testimony for over a day, two days, whatever. Well, I was judge who even so fixated on the fact that this defendant didn't accept responsibility. He can't mention it. I think that that goes specifically. Is he upset about that with the angry about that? I think it was an observation. And that's sort of an observation that before in U.S. cocaine, which is a fraud case that went from one twenty-one at the top to two sixteen, that in their one of the reasons was that the defendant made Cavalier comments to probation. The judge observed how this defendant acted. The judge observed the financial off a David that was turned in which was unique. It had things written on it such as, you know, I have no idea. It got only knows whether the IRS, you know. And then the defendant stated that he had no assets. Financial David reveals no assets. Yet he tries to, in his argument, to turn me in out, says I have to shut up. I have to swine down my multiple businesses that that that I have. And I think that you accept at some point, you know, what do you need to turn the public out? Well, lying down these businesses, these businesses, these report have no assets. And so I think that sort of, you know, that there are sort of currencies in the judge observing that is sort of foundation for his reaction. Nothing further on, isn't it? Thank you very much. Thank you. Your answer. My question. Your answer. I'll give you just briefly address the criminal history question. Mr. Trasako was convicted of assault one in robbery one in 2000. The assault offense occurred in June 1999. When he was 28, the robbery offense occurred in February 1998 when he was 26. The person was 49 to 50 years old at the time of this offense. It was criminal history category two for a reason. And the government asked the court for a criminal history category departure under 4A1.3. The court did not do that. The court didn't check that box. Instead, the court kept them at criminal history category two, but essentially punished him for a criminal history, which I think was also inappropriate. As to a restitution, I have a special concern to the judge's conduct to this as to indigent clients like Mr. Trasako. Most of my office's clients are clients of not paid taxes in recent years. Many have little or no bearifiable income. That's how they qualify for our services in the first place. So I worry about, unless the court takes action, this being seen as an aaryon factor in more and more cases with this court, which would create unborn to disparities. Probably the most vulnerable people in our legal system. This is what the court is with respect to the best tuition issue. Exactly, you are. So can you just address the government? I'm very sympathetic to what you're saying there. But would you address the government's argument or statement that he talked about having to wind down his company, but then also said I've gotten a assets, apparently just Williams designed to stay in the now, believe that there was some internal contradiction. Well, we know from the record evidence that trial, that Mr. Trasako had a company, that made insult products, had a warehouse, Mr. Namasa said he had been there about five times that had seen goods. So we know that there were physical materials that Mr. Trasako wanted to dispose of. We know that he paid rent for this space. Not a non-advantic financial FD. No, you're on it, but it's not uncommon when clients are cleaning his affidavits to the best of the recollection. They don't have the best available information. Well, but I mean, not many of your clients have warehouses and businesses that need winding down. It doesn't sound like the most vulnerable population. Well, you're on it. I think even small business owners were very vulnerable during this time. The sensing was in 2023 after COVID. A lot of businesses were struggling. As we said, it's sentencing. Nobody wanted to touch Mr. Trasako after this case became public. Nobody wanted to work with him or do business with him. People who had in the past. But it's a business with books and accounting and the like. And yet it reflects no assets. So it's hard to see that the judge noting that for purposes of how he thinks about the restitution is irrational or a piece of a discretion or clear error, whatever it would be. We're not saying it's not relevant. Your honor, we're just saying that it's not sufficient to justify this vast disparity with this code of vengeance. What is he trying to look at the time he was filling up just the natural form? Yes, your honor. He's going to represent by office throughout. I just want to point out briefly if I can just have the moment your honor. Mr. Trasako's code of defendant, Mr. Namasa. God knew where his extensions have finally self-surrounded in December 2023. He's due to be released in October 2025 after less than two years in prison. Probably significantly less time considering half way house or home confinement time. Lornax served 150 days. John Bernardo served a little over 250 days in prison. So the government points out at least two things and I'm going to give you an opportunity to respond to those on this rubble, although you're the past few times. That's okay. Thank you, Art. The first is that Mr. Dumaasa is significantly, definitely situated by virtue of his cooperation. That's right, your honor. We certainly present that which is a significant thing when the government submits a letter. You can talk about the Justice of injustice, really. He's a top guy and cooperating with downward or a pause and so on. There is a great value to coming in cooperating. I think you would agree with that. Credit, associated with that. The second thing is that the government mentioned various mitigating factors associated with Mr. Bernardo and Ms. Knox that were not present with respect to Mr. Trousaka. So if you would have addressed both of those. Certainly, honor. Mr. Dumaasa cooperated. He should be credited for that. You received a sentence slightly below the guidelines. We are not saying that that's an inappropriate sentence. We're just saying that Mr. Trousaka sentence was so much higher that it's an unborn to disparity. It's not just that they're similarly culpable and Mr. Dumaasa cooperated. Mr. Dumaasa was much more culpable. The government said it's sentencing response to questioning from the court that none of this would have been possible without Dumaasa. We know that because he was given special responsibility from the mayor to administer these COVID funds. He was both the city of play and an elected state official. So Trousaka, who's an outsider with no political connections, the no established position in West Haven is in a very different position. John Bernard O'Tow was a city of West Haven employee who, as somebody who had worked in public service as a city of New Haven employee for most of his career, should have known better. And he also had significant political influence. He was Mr. Dumaasa's campaign manager and was heavily involved in democratic politics in West Haven for decades. I should also note, as the government mentioned, the compass scheme, that the of the four schemes, that's the one that resulted in the largest loss amount. I believe it's about $600,000. And as part of that scheme, Bernard O'Ndemosa created a fictitious shell company. They used Bernard O'Homand rest as the address for the company. They set up something through HR so the money could go to Bernard O'Homand retirement through that scheme. Much more sophisticated than the alleged J.J. and L.L. L.H. schemes. So, it's not that there are no mitigating characteristics for these defendants. I'm sure there are. It's just that considering the aggravating factors that were present for them, particularly their public role, it's just too much of a difference to have them in and out of jail and have Mr. Trasaco expecting to be incarcerated until 2029. Thank you very much. Thank you. I'm a sort of decision.

All right, the next case is Turner versus Jordan. We'll give the courtroom a chance to clear out before we begin the next argument. We lost our audience. All righty, we will begin with Mr. Burns. We're going to have to make police court judge heard about the half of the Pellant Robert Turner. I've reserved three minutes for a buttle. The issue in this case is whether the comedy doctrine mandates abstention, in a case that only tangentially and will receive taxation that sees no declaration that any state tax law is unconstitutional, which is favorable for the plaintiff. We'll not impair or disrupt the state's ability to levitate assess or collect any tax. I'm not advocating that involves taxation in votes to comedy doctrine. Can I ask you just a quick question to kind of accept the table. Do I understand correctly from your brief, you sort of swore off any argument that you're contesting the amount of taxes owed. You say that's not our argument. It's not our argument that the validity of the homestead exception exemption in the abstract just sort of when it was active and when it wasn't active with respect to the original listing. And you've swore off any argument of concerning the government's right to foreclose in the property. Your position is like this is sort of a rifle shot argument just that they misapplied state law and did so for retaliatory reasons. Okay, I just want to make sure I've got the narrowness of your position right. And I think that's important when we look at the principles of comedy and why it's in place and why the doctrine has developed the way it has. And that's to ensure that federal courts aren't disrupting the states and their administration of taxes. I'm going to look at what we should hear at this. The release of this turn of seeks would have no impact on the state's ability to administer its tax programs. Can I ask you a question to sort of a factual thing that I'm just a little unclear on. So he, I think it's pretty clear he had the homestead exemption at the time that the first sale was set at $3,500 or whatever. And then I don't think we can take judicial notice of the fact of it being said in June, but in any case, in October, it's offered at the same amount. Is there a resetting of that amount or is it automatic that it is the exact same opening bid? Do you know what I'm saying? The exact same opening bid from March. So it's set for an opening bid in March, a minimum opening bid, no one buys it. Then it's sold for the same amount of that minimum bid in October. And I'm wondering, is it reset the minimum amount that they're offering the property for it? Or is it necessarily the same as it was in October? In other words, what I'm trying to ask, but not doing it very well, is whether it be a amount that they set in March necessarily governed what they would offer it for. They would offer it for an October. It's our position that the statutes say that there is just one opening bid. And that's the amount that was originally set when the property went on public sale. And so that was the March period. And at that point in time, it's undisputed that Mr. Turner had a valid homestead exemption on the latest tax roll. And so that amount should have included one half of the assessed value of this property. So when the so your view then is that the only relevance of this the October sale is that it was sold for that amount. Not the timing of that sale, right? Okay, I got it. Thank you. We leave the statutes use opening bid and minimum bid, but they're not interchangeable. They mean different things and that's because the statute defines what goes in an opening bid. And so the opening bid should have remained constant once it was placed for sale. And that taxed application was made. And so at that time because Mr. Turner's homestead exemption was valid, that that amount should have included the one half of the assessor. Is that require us tapped a value e. Tax law, state tax law to be able to make that determination. I mean, because let's say that the amount could change. I mean, I guess maybe it doesn't make a difference here because we're not going to wreck. I'm pleased I don't think we can recognize. I don't speak on behalf of anyone else. The fact that the homestead exemption was lifted in June of 2015 on this record because it's not in there. So maybe it doesn't make a difference. I don't believe it does your honor because those documents are not in the record, but even if it did. Whether the homestead exemption is removed or not removed. It doesn't really matter because this is the very unique factual case where the removal of the homestead exemption has nothing to do with the amount of taxes with the value of the property was. It only relates to whether Mr. Turner was entitled to the one half of the assessed value. Right, but let's say if we could recognize the fact that. That the homestead was removed. Then the question then that's when it becomes relevant as to whether the state could or whether the county could have offered it for a different amount in October. Whether the whole in other words whether the slate is wiped clean and whatever error they may have made in March doesn't matter anymore. I'm asking it because if that requires us to get into state law to be able to assess that. I wonder what your thoughts are on that and and whether that's something we should be doing. I would be a. I would have to turn on the court have to determine whether the clerk was permitted to to change the opening bid, which I think when you look at what the term opening means it wouldn't make sense that the opening bid could be changed and have it still be the opening bid. I think it implies it's the the first bid. I think if you think of a play has opening night if nobody showed up what they did the play and then the next night that's not still opening night because people come the first night was was opening night and so I think that's kind of the same way this opening bid works and so the clerk couldn't change the price. But even if the court has to to make that interpretation of a Florida statute, which which federal courts do all the time particularly in diversity jurisdiction, I don't think that in folks comedy and extension here because it still doesn't impact. In fact any taxation issue because whether Mr. Turner had the exemption or not doesn't change what he owed what a future property owner is going to owe what any other property owner might owe. It only matters as it relates to whether he should have received that one half of the assessed. Mr. Burns. You reply brief says that your opponent has loaded up his brief with a lot of facts that are under the record. Yes, sir. Okay. Let's us. So that that ought to be rest of them on demand is that the idea. Yes. What would you expect would happen if we said the case back down to the district court and all of the factual recitations and your brothers brief became became fact. Where are you then? They were back at the statutory interpretation issue. Well, no, we're back in state court, aren't we? Probably. No, I do not believe so. As our dispatches of limitations running while we're doing all this, I'm talking about first state court proceedings. A lot of times people get into the federal court and they got a state court cause of action and the state court limitations period keeps running. Is one running now? No, I'll put it this way. Are we the position where you failed to do anything in the state court and the federal court is the only place where you get you relief? Is that about where we are? Yes, sir. Okay. And that's by turn of their own doing. It is your honor, but that doesn't. The the statute of limitations issue is not something that was even has even been raised. I mean, there are a lot of times when when Republicans have a remedy and state court, they come to federal court. They left a limitation period run on state court remedies. And now they said in the federal court, we get it anything less you exercise jurisdiction here. We are not, I don't think this is a situation where just because Mr. Turner could pursue a claim and federal court that or excuse me in state court that he must. Because I think the comedy doctrine is really a two step process. Whether you do call with the facts that they laid out in their brief. You're a happy opportunity through the story to test. They laid an out the sort of a logical way. They lay out a timeline and have put documents before this court that were not before the decision. But Mr. Turner has had no opportunity to conduct his own discovery to test those. If you have not. The discovery of what they represented is true is at it. Correct. Okay. And he should be entitled to to be able to do that. Ultimately, because of this two step process, just because there may be state court remedies. It doesn't mean that this case has to go to state court. What the comedy doctrine looks at is and this kind of brought out in the discussion on the standard of review. But if comedy principles do not control, then district courts have a virtually unflagging obligation to hear the cases that are within. Then you got the the problem doctrine applies here too, does that? You're asking the federal court to interpret state law. You're on a, I'm not sure that. Is that not what you're asking? Well, there is not at this point in time. You have a state law question. You want the federal court to answer. The federal court needs to answer the question. You're on. I think we're, the case that for the district court was that Mr. Turner had a valid homestead exemption. And because of that, he was entitled to to the one half amount. And ultimately, even if the federal court has to interpret the state law, I still don't think that that invokes principles of comedy because it's not related to the tax issue. It's really related to a. Fidiment protected property interest that the Supreme Court just recently held in Tyler, we had it in county. For the statute creates this one half interest in the homestead that is in college of the property owner if there's a tax deed sale on that property. And that interest is. The tax in all, it's, it's gathered in conjunction with the sale. It's not a tax that never belonged to the county. And I think both the free and door's cases do good job of explaining why that surplus amount is separate from taxes. Thank you, Mr. Barnes. You reserved three minutes for a bottle. We'll hear next from Mr. Seagull. My name is Scott Seagull and I represent the appellies in this action. There are two important ones here that I think are dispositive and that I would briefly frame for the court. We are not asking the court to take judicial notice or to use judicial notice to reach the merits or determine the truth of any of the underlying. Issues here, including removal of the homestead exemption or the calculation. It is simply enough. And exactly the end of this court knows that those issues exist and that those issues will have to be resolved one way or the other for Mr. Turner to prevail on his claims. And it's not that those issues both impact state law issues of taxation or excuse me of assessment and collection of state taxation. There must obviously be a decision at some point that there was a valid homestead exemption on this property for to have been applied to give him the sort. Let me ask you this. Do you contest that there was a valid homestead exemption in March? We did not. The exemption was removed on June 1st and was removed a certified removed October and was not in place at the time of the tax deed sale later in October. So I mean I took your adversaries answers to my framing question earlier to be basically all he needs is that there was a valid homestead exemption in place in March when you played when you structured the opening bid. He says that it was at that point that sort of the opening bid that the sort of country to state law the opening bid was too low. Because at that point you've now you've acknowledged there's not the valid homestead exemption in place. And so you know there was a misapplication of state law that he alleges was sort of misapplied in retaliation for first amendment protected activity. So those dovetails into judge Rosenbaum's question about whether the opening bid is fluid or is fixed at one time. So I turning to that because this absolutely what my colleague described is a pure statutory interpretation. He talked about what the statute implies. The opening bid is a statutory term of art. It is a mathematical calculation. Plus why plus Z is the opening bid. So when the statute says quote any purchase person may purchase the property for the opening bid. It's not talking about an actual business taking place. It's talking about it may purchase it for the result of this mathematical calculation. And because it's a calculation it is fluid and can change as the components of the calculation can change. So for example if there was property that was unsolved for more than a year and additional taxes became due and additional taxes became delinguin then the component of the opening bid that talked about the back taxes or unpaid taxes being a part of that would be added to that. So it's possible here for example on April 1st the opening bid calculation would be one thing and after additional taxes became due at a later point the opening bid would change. What would the revocation of the homestead exemption if it occurred in June as you say would that change the opening bid? It would change the opening bid when it was certified in October which happened before the tax detail. So there's actually a case here I think that that works talks about this. It's predito of a partnership to be worn or it's a first part of first district court appeals case from 2003. I give you the citation because I didn't have the serve reply. It's 877 second, 1154 and it talks about this process in the clerk of court and that they talk about how they do not run this calculation of the opening bid until there is either request or an offer made on the property. The clerk said or the court said quote, the clerk accepts the purchase on a first come offer to purchase on a first come first serve basis. It calculates the amount of the opening bid and the court in that case, far to first district went on to specifically find and ruled that that procedure did not conflict with the state statute. The statute itself is silent as to when the calculation takes place or when it must be recalculated. I would argue and I think the clerk of court's position here is as the components of the calculation change then the amount of the calculation will change. And again the opening bid is just a calculation. It is not actually a bid that takes place. And that's exactly what the Court says. What remedies does Mr. Turner have at the state court and which remedies that he has as he given away by let the statute live. That's a good. He has full remedies for him and he all claims that he could have has raised in this case. And right tomorrow tomorrow what could he do in state court. The statute limitations ran on every claim he's made that all while he's been litigating in federal court. Judging by the run while he's been litigating here unless you count his prior federal court action. They ran before he even came to federal court the first time. No, and before he came to the federal court in this case. And his 20. That's what I mean in this case. He's been living in federal court while the statute's run. He had time that he is brought here. He could have. Okay. The first federal court. The royal we are is he's let the statute run and then the federal court is the only place he can get the relief he hopes. That that squeeze it down in that where we are. He would have those remedies. I would tell you he has no remedies anymore because even before this case was filed the statute on every claim he had. He of course could have brought a first amendment retaliation claim in the state court. When he brought his first state court action. He could have brought that claim and when he brought his first federal court action. But he can't react now. And that's not the reason we talked about statute on the actions. That is not really an expansion of the underlying court's order because any affirmation by this court. If we refer to case in any capacity the legal effect is the same. But the client for the time or before he brought them they continue to be prime time bar now. So the legal effect is the fact dough at dismissal with prejudice. Yeah, but we've been pretty stingy about this right. I mean I tend to think that Turner has the cross-bill issue exactly right. That you know to what as you would say to affirm only alternative ground would be to convert. Hey without prejudice jurisdiction on this missile to a with prejudice merits dismissal. And that is an enlargement of the judgment. What did you now tell you exactly what I think I attempted to say poorly just a moment ago that the it's not really an expansion. Because if if the statute limitations if we agree the statute, then the law that says when the statute limitations says run and all these claims are barred before this case was filed. Then the law that says when the statute limitations says run, a dismissal without prejudice is the fact dough, it dismissal with prejudice because it cannot be. So if we affirm on the the issue that the the comedy issue that the district court affirmed on it is still the fact. I just miss with prejudice because this statute tried to re-bring them the statute will have already run. And so this court doesn't need to to add the words with prejudice. Does it need to remain for the court to add the words with prejudice? The legal effect is the same. It is with prejudice whether the district court said it or not because. On the face of the complaint what we know, the statute has run. He does raise you know should the district court have been able to raise or consider total. And I just think that the totaling has no application in this case at all. He brought multiple timely lawsuits. He bought a state court action a state court of court. He brought a. All within the four year statute limitations for these claims. He clearly knew he is our injured. He clearly knew that he could bring a lawsuit to address that. If this case is any different, it is only different. And how he is chosen to formulate the claims or what specific claims he is brought. It is not a question where he didn't know he had been injured. Didn't know he could vindicate his rights. So and again, we can use judicial notice. We don't have to drill down to the merits. We don't have to accept those documents for their truth. We only need to know and understand that those issues exist and will have to be determined one way or the other. Getting back to judge Rosenbaum's question on the the clerk of court and the fluidity. The reason that is important is because this court will have to decide or not this court. It remains the district court at some point will have to decide that the clerk of court, a constitutional officer of the state of Florida, charged with collecting these taxes or conducting these tax sales, is misinterpreting a floor to statute. And is applying the Florida statute governing those tax sales wrongly. And it is enough to know that that has to be decided on the district attorney's favor and that that is a disruption that is an interference with state taxation. To say the statute is should be heard this way versus that way. And Mr. Clerk of court the way you are interpreting it is wrong. If that's the decision that needs to be heard. What if there's you know clear law clear flat a law and a sonal if to do is apply clear flat a law and it's not and there's nothing that is it all hazy about it. There is no law on this if you Google or if you West law search to use you five attorneys cases about the only cases that that deal with any of these issues. I've looked and I assume my colleague has looked as well as far as you know when does this calculation must take place. Where the what are the components for the home set exemption removal that take place here. What is clear is that the. Agree persons have remedies and state courts. Well, let me ask it to you this way. Let's say that you all sold it for $3,500 in March before the homestead was removed. Is there clear law that you couldn't have done that and under Florida law. Judge of course different facts lead to different outcomes. Yes, I agree that's why it's a hypothetical. It is a solid more than the homestead exemption would have attached that property when it was last certified and it would have had to been sold for. The amount that included one half of that I don't I do not dispute that and I think that would be clear. The interpretation of when the calculation takes place is a critical issue of interference in the state taxation system that must be decided at some point and if it's going to be decided it's Florida state courts that should be tasked with deciding whether the clerks are interpreting the state tax action statutes correctly or incorrectly. Again the statute is silent on this and. Let me ask you one other thing then on this factual record which you all could have put that into evidence I guess in the in the district court but didn't. I guess you're well I'm thinking through it right now I guess your point is that the taxes could have changed between that we're doing knowing between March and October and that would have if that had happened that would have affected. The tax is necessary to change it's whether or not the minimum the calculation of the minimum bid change and we would say the did change because. That's that's the property change so that. Okay so then that actually that's not what I'm asking that's okay I wasn't clear. On this record we don't know that the homestead was removed okay so on this record there's still a homestead that exists in October and so. Under that scenario. Is the law clear that the minimum bid would have had to have been more than thirty five hundred dollars. There's a opening bid I know. Reason in extension cases the court is not living to to the forequarters of the complaint and then that is so that the court know what the issues are in the case that have to be decided. Court's look beyond the mirror allegations to understand what the case is really about an extension cases. So do not have to address these issues with blinders on so while the forequarters of the complaint you would have to accept there was an exemption. The judicial or the prior record is at least sufficient for this for to understand that is an issue in the case and that will have to be resolved one way or the other and cannot be resolved without a determination for the whole assumption for example that the. The property appraisers judgment and actions in moving to all set exemption where somehow wrong or the tax collectors actions and governing. Stash we're sorry. Correct. It was an improper interpretation so. We look at judicial notice here we have to look at it with the limited frame point that is important for the court is not from the truth is not determined the marriage we don't have to decide right your all point is that these are going to be issues that have to be addressed. That's it. The institutional notice is not the issue issues in the case we can at least look and we don't have to dig very far in those cases at all and this course did of course look at those cases cited extensively from the complaints from the orders from looked at. It looked at detail at those prior cases the court the district court understood that this case involved those issues and because it involved those issues principles of comedy and the tax and junction act would prohibit its interference with that issue to the court was pretty clear. And I think that if there's going to be a determination that the same. That you should be read the way the other side says it should be read and not as the way as the clerk of court is going to read it that's a misinterpretation that that is a job and a role for sport a state court to address. And because doing so in federal level would be an undo interference with that taxation scheme it interferes with the collection of the taxes from the tax collector quite. Quite clearly and because adequate state law remedies existed and that's a question separate and apart from whether he timely utilize them or cheated the results or brought all the claims he should have brought timely which he. You know as way they're delayed or reformulated is case of any times because it is an interference and because there are remedies then both the tax and junction act and principles of comedy. Suggest that this court should affirm and dismiss this case. Thank you council. Mr. Burns. Do you have any remedies in state court that are not barred by the statute of limitations. Yeah, do you have any remedy in state court for what you're seeking that are not barred by statute of limitations. I can you can. This is the Florida statute of limitations on your what it want us are told is that would you tell me. Yeah, we had not made that argument before the district court not not no I'm asking you whether or not as a fraud lawyer. The rate if you seek in this case. Can you obtain it in Florida or are the statute's limitations run. Looking at the time period the four years have elapsed so if there is no. That's the. Can you go get tomorrow morning could you file suit and state court. You can. You cannot because it's run. Okay. You're a touch on one point about the factual record and what's been presented to this court. The magistrate judge and its report and recommendation on the amended complaint. That there be a factual record developed to determine whether the tax and junction act or comedy doctrine would control the case. And I believe that's the proper course that the court should have taken here on the second amended complaint because there was nothing additional to the second amended. So I'm sorry we need to we you have to limit your argument to what was raised in your initial argument and what was brought. And what was brought up by opposing counsel. Something that's responsive to that. Yes, sure. I think we're trying to say that based off of. Looking at the evidence that Apple leaves have presented. That was not in the record below. The court should have the opportunity the district court should have the opportunity to review those and determine whether. Those many. And I think we also say do you disagree then. With your friend on the other side of the aisle that. It's appropriate for us to look at those findings not for the truth of the matter asserted. But to recognize that these are issues that the district court will necessarily have to address. I disagree that that's why they were put before the court. Well, God, those of why they were put before the court. Do you disagree that they can be used by the court for the sole purpose of assessing the issues that the district court will have to evaluate if we send this back. Thank you. The very specific relief that Mr. Turner seeking it's not a tax issue and so it's not. It's really it's. It's a. And it's a process that's done in conjunction with. But it's it's not related to any tax here and so because he's not actually challenging the homestead exemption for tax purposes. It's not going to. Let me ask you one other thing. The March offering where there was no sale was there an injury to your client for purposes of the fifth amendment. There there are no there had not been a taking it that so the injury doesn't occur until the October sale right. When the I'm taking a curse yes, sure. Okay, so what give us your best argument for what we should rely on. To ascertain that the offering amount. Couldn't have changed between. March and October. One ninety seven point five or two defines opening bid and then in later in one ninety seven five or two. They use a different minimum bid and when you look at that statute. Because specifically to find and says a third step. When it's for sale and then my colleague talked about. The decision tax is later after the opening bid. One ninety seven point five or two then refers says that will be added to the minimum bid. And so there's a difference between opening bid and minimum bid. And the minimum bid has these were called omitted taxes right the tax collectors not actually allowed to extend taxes once it's been listed on. And so when you look at one ninety seven point five or two. And then you can see it simply doesn't change it remains opening bid. Now there's things that can be added to the minimum bid, which is what somebody must pay to buy it. What the initial offering is that opening bid. All right, thank you very much Mr. Burns. Thank you both.

Good morning, welcome to the 11th Circuit. I think you're all familiar with our timing system, but just a quick reminder when the yellow life goes on, you have two minutes left for your argument when the red light goes on, you're done. If we ask you some questions that take you over that time limit, please do answer the questions. We wouldn't be asking them if we didn't want to hear your answers to them. And with that, we're going to go ahead and get started with our first case of the day today, United States of America versus Peter Tarantino. One hour ago, these four classes that I've started on behalf of Todd and Julie Chrisley, we've split the argument with the co-dependence, the seven, 11th performance, like to ask for seven minutes now and four minutes on our buttole for the court to okay with that. You're on our second case. Okay, all right. The defendant makes a giggly-o-claim post trial that relies on information and activities outside the record. This court has held for decades, the district court required to hold a hearing on those accusations if they could lead to a new trial and relief for the defendants. Here, the giggly-o-claims would have that effect for a few particular reasons. First, the issue that was discussed, that came out in the redirect and then the recross of Officer Betty Carter, was whether the Chrisley has had paid taxes in the post-conspiracy period. And the district court will love confirmed. That would have a potential prejudicial effect on the defendants by leading the jury to the leaves that they not paid the taxes that they weren't interested in paying taxes that they were untruthful, essentially they were the type of person who could commit a fall off charge with the other acts. That effect spills over not just to the tax charges, but to all of the fraud charges in this case. But there's an additional effect that is brought out in our motion for reconsideration on that giggly-o-motion. What does the evidence suggested that the prosecutors here worked in concert with the witness to testifying a manner? What is the evidence that suggested that? So we have, I think, 11 pages in document 304 that lay out things both from the affidavit and from the trial record that show that the prosecutors here believe that as long as their witness was relying on the EUP, a technically correct document, but one that they recognized was misleading, that testimony would be in the words of the prosecutors true and correct. So we have both the records that show Win Officer Carter was looking at records. We have heard declaration. And then we have the prosecutors' own words to the district court at multiple times, both before trial, during trial and in the post trial proceedings. They specifically argued the court that it was true and correct because of the EUP. They say at one point that they are relying on the EUP and that they relied on the EUP at trial. If they relied on the EUP at trial, that means they relied on information they knew to be misleading. And that were the effect. Certainly, I think the disclosure would look like this. At some point, the office recognized that its prosecutors had told a witness, you can testify this way because we know the IRS system says that. We also know it's incorrect. But so long as you say it that way, we think it's okay. If that disclosure had been made to the defense team, they could have used that to undermine everything that Betty Carter said. But also to understand. Well, let's talk about that for a moment, right? Because even if we assume the facts, as you are suggesting them to be, isn't it the case that your clients were continuing to pay maybe not for 2014 and 2015, but for the other years, I guess it was 2010, 2011, 2016, whatever, as late as September of 2012. No, so that's what I find that in the record. So in our original motions, both the original motion for Newtrial M304, that make clear that the testimony of Mr. Secondor, in his affidavit, was that before trial, the Chrisley's had no outstanding tax liability and the only tax liability, sorry, the only thing owing back and forth would have been a credit to the Chrisley's. And this is why you have a hearing because the district court made what she declared to be findings on no record with no ability for us to cross examine. Didn't this see the fact that the Chrisley's had paid all those taxes? And so I don't think this court can rely on the idea that the district court relied upon they paid some years they didn't pay ever. They didn't pay others. Secondor was clear, they had paid everything before trial. In fact, the government doesn't argue they hadn't paid $29 and $2010. They tell the court that we somehow conceded 2016, which is not at all what Bruce 2ndor of St. Declaration says, whatsoever. So the testimony that we would have elicited at that hearing was there was no taxes only at the time of trial. And that would have been clear from the payments that Betty Carter looked at in the system. But still over there goes to, all right, the prosecutors know there's nothing to do. We know that from the motion eliminate. They know this issue is coming because it's one of the defenses that the defense lawyers are going to raise. They file a motion eliminate to try to exclude that testimony. And the court says, no, I think it's relevant. We're going to let it in. And so then instead of letting that testimony come in cleanly, they take this approach where Betty Carter testifies to what the EU piece says. But didn't this testimony first come out on cross examination when when defense counsel solicited it? Of course. All sorts of things as a prosecutor, you would not ask a witness, but you would know that that witness is going to talk about. And not only did it come out, I mean, I think there's, it's not a defense to a giggly of claim to say, I can tell a witness to a question. Of course not. But in conjunction with whatever evidence there might be about whether this was actually a coordinated effort or whether instead this is speculation on the part of the defendants, it is relevant. I mean, it's a little bit relevant. Oh, sure. And I'll interrupt. But I'll be'll say, in redirect, he comes back to it. AUSA crap immediately comes back and asks a series of questions. We cite that a few times in our brief. And the ask, he says, you know, Ms. Carter, I want to let you talk about those records. And she says, oh, yes, I went back and I looked just the other day. There's a balance oing and do. That's not true. All right. So let me just ask you something. That is a general question. I've looked at that testimony because I was concerned. And the question that's asked is about whether there is tax oing and do or any amount soaring and do. And the answer is yes. And so if it turns out that when I go back and review the evidence of what was paid and what was due and whether anything was due, and it turns out that in fact there was a sum that was due for at least one or more of those years, then it seems like that is actually factually correct. Would you agree? I think the rarest establish that yet. But again, that's why you have a hearing. Are proposed by the people. But you only have a hearing if you can show evidence or some reason to believe that there was the deliberate holding back of evidence that was relevant here. I know I understand your position that you have that. I'm going to go review 304. I'm going to go to the second door of the declaration. It's an attachment to 304. I think it's 304-1. I believe it's the third or fourth paragraph. The brew second door says, I'm providing the declaration because I prepared and paid the taxes. And when I did so, I believe that I extinguished all liability. And then when he says that there was some potential $3,000 left on 2016, he says he believes that was improperly applied interest for the precision. The precision paid taxes, the IRS ignored that they paid it. And the charge penalty and interest at that point. Is it the testimony of the declaration? Well, I mean, that's not exactly accurate. I mean, the taxes were due, I guess, under Todd Crisley's name. They paid it from Julie Crisley. And there was apparently some kind of, I mean, you're saying it was a coordinated effort. I think, yeah. I think it was a IRS didn't know what they were doing. Left hand didn't know what the right hand was doing. In the system, if you had looked, and you would put it in a very cardinal looks, there are, you can see both taxpayers. And you can see that there's a large sum sitting for Todd Crisley that has not been applied to the joint return with Julie Crisley. If she looked at that, she would have seen that those two would have extinguished each other. And if the IRS would properly apply that, they would not then be what Betty Carter says there would be interest in penalties. She would know those interest in penalties would not be due, because that payment was made years before with respect to that payment. All right. Thank you very much. Any reserved your time for our battle. Well, here next from Mr. Samuel. Excuse me. May I please the court? My name is Samuel. I represent Peter Tarantino, who was the CPA for both Todd and Chris Crisley. I raised one issue on appeal other than adopting the radio arguments of our colleague here. The issue we're raising is whether the trial court aired in refusing to sever the defendants in light of the prejudice that was suffered by Peter Tarantino, the CPA from being jointly tried with his clients, this Crisley's. The scope of the charges against the co-defense, dwarf the evidence that was presented against Peter Tarantino. He saw that the prejudice not just from the quantity of evidence that was presented against the co-defense, but also the quality of evidence. He was prejudice by the fact of their crash well of their prior homerms committed, bank fraud, mal fraud, wire fraud, by their failure to pay taxes for years prior to the time. The Peter Tarantino was tired to represent them as their CPA. Their ostentatious wealth, the way they spent money, all of that, spilled over to effect Peter Tarantino's defense. The unique feature of this case is we're not just talking about two defendants who had jointly trialed in the customary case to drug defendants or whatever. We're talking about someone who was the representative. Equivalent of being like a lawyer being charged with his client because of what a lawyer did to defend his client. As the CPA, he didn't have a duty to ensure that all taxes were paid. He didn't have a duty to ensure that. But he had a duty to ensure that he wasn't involved in trying to evade taxes. And we're not working with efficiency of the evidence in this case. We're talking about the problem inherent in rep in prosecuting a CPA who, in fact, is doing what he can to minimize his client's taxes, who, in fact, is doing what he can not to facilitate the collection of taxes. But you're not arguing for a rule where you can't try the CPA along with the client in a taxidation scheme. I would never say you could narrow do it. But the court was seeing not be careful as to ensure that the spillover effect from the misdeeds of the client weren't prejudicing their lawyer. Was there any instruction that you requested that you weren't given with respect to that? You were not asked for a specific instruction that said, you know, steer clear. There were instructions. Of course, as the government points out, this has every defendant has to be tried on his own merit based on the evidence presented against that defendant. So the typical pattern in instruction with regard to that. But there wasn't a specific instruction. Either requested or given that talked about the duty of a CPA. And I compared the case in our brief to the Kelly decision where the same thing happened the lawyer was prosecuted along with his client. And so this court, I held that it was prejudicial error to do that. In fact, in that case, it was insufficient evidence. But the problem was the same. It was the problem was that the individual even jury to distinguish what the role of the expert is, who was not in fact, you know, complicit in the crime committed by his client. And yet, it's facilitating the misconduct of the client by virtue of his professional responsibilities. And the one example which we cite in our brief is that the changing of the corporate structure, he told the the criss-lead that the IRS was, you know, wanted to know about the payments made from seven seas, the back accounts. And they quickly changed all of the records, changed the back account, changed the corporate structure. Doing that, he also told the criss-lead that he hadn't really been straight with the IRS about what that structure was. Didn't he? No, but he's with the Tesla over there. Of course. It's okay. What he said was he wasn't, he didn't provide all the information that they requested. But he wasn't deceptive. But that's typical lawyers do the same thing. CPAs do the same thing. He didn't. Sorry, didn't he say something about it being in the daughter's name? They're there than the corporate structure. Okay, but that was not accurate, right? I understand. All right, thank you very much. All right, we'll hear next from Ms. Peters. Good morning, Mr. Gliese. The court, I'm Annelys Peters. I represent the United States and I was trial counsel in this case. The district court did not abuse its discretion into climbing to hold a hearing on the defendants, giglio claim, for four reasons. I'm starting a wrap, but let me just get right down to the facts. You're framed on the other side of the aisle says that there's evidence that shows that the prosecution, the prosecutors collaborated with the agent, the testifying agent, to effectively tell her to refer only to the transcript as opposed to the actual, as opposed to anything else. And so therefore not to credit the idea that all of the taxes had been paid. First question is, had all of the taxes been paid as of the time of her testimony? Second question, well let me have the answer that first. Yeah, at the time of her testimony, no, not all of the taxes had been paid. What had not been paid? A tax, oh, in doing for the years 2010, 2011 and 2016. And that's clear from both second-dwarfs affidavits submitted by the Crisley Defendants as well as from Officer Carter's test, excuse me, affidavits submitted after the fact. Because four months after trial was over in September, 2002, the Crisley Defendants wrote a series of checks to the IRS to pay off their outstanding debts for those three years. So at the time of trial, when Officer Carter testified on redirect examination and response to a USA crept's question, do the Crisley still owe anything? Officer Carter's answer of, yes, they still owe was true. Okay, second question, did the government in any way suggest to the agent that she should review only the transcript as opposed to anything else? Of course, you're on her. And there's no evidence whatsoever in the record suggesting or even hinting that the government coached this witness to lie or suggested that she should testify inaccurately as to what the Crisley's owed at the time of trial for the tax years 2014 and 2015. The way that this testimony came up at trial completely undermines the idea that the government would have coached this witness. We never asked Officer Carter about what was due at the time of trial. The purpose of us calling her at trial was only for her to testify about what efforts she had undertaken as a four year civil servant during the year that she was assigned to collect the Crisley's taxes. And that ended in 2017. That's what she testified about on direct. Where her actions to try to collect specifically Todd Crisley's 2009 Delinkwood taxes owed from years before. It was on cross examination, as you pointed out, Rosalindbaum, that the defendant's first brought up this idea of, well, what's due right now? What's due remaining as of the time of trial? An officer Carter hedged over and over in response to this grilling cross examination of, I don't recall, I don't have a schedule of payments in front of me. I got off the case in 2017. I'm not personally aware of any payments they made after 2017. And yet defense counsel marched her through year by year from the years 2009 to 2016, asking her whether or not the Crisley still owed the IRS as of the time of trial. And she was after the conspiracy. And the counsel worked a lot of the questions put to Carter based asking her an effect what records show. She's testified on what record show. That's what she was. I mean, basically her testimony was subjected to a best evidence rule. That's what she was. And when you're testifying about much of records and you're just verbalizing summaries of whatever, drawing conclusions, the best evidence rule says you got put the document said. Then you can cross examine the witness with the documents. Yes. Was there any objection under the best evidence role? There's no answer. And now I've got two responses to that. First, Officer Carter accurately testified and despite her saying I can't recall, I can't recall. It accurately recall and testified to what she had reviewed in the EUP system about what was doing, owing, for those eight tax years. And some of the years there was no doing, owing. Secondly, the all members and IRS records that the government admitted at trial had been produced to defense counsel two months before trial. It turns out that some of those records did not accurately reflect some of the payments that the Crisley's had made long after the conspiracy ended. And these delinquent payments, but the Crisley's never raised that issue. They never objected to the admission of the records. And in fact, this brings me to my second point, the government did not become aware of the fact that Officer Carter's testimony was inaccurate about those two tax years until after trial was over when the defendants filed their rule 33 motion. Of course, the defense knew that at all, longed in the, they knew what was doing the bad. They certainly loved the things they had been in the law course because they had made the payments. The prosecution team was unaware of that. We first learned the prosecution team first learned about some of these delinquent tax payments two weeks after Officer Carter finished testifying. Four days after the government had rested its case in chief. When on the eve of the defense beginning to put up their case, they produced to us a series of records and documents that they intended to admit as exhibits. One of those was a schedule of payments showing that since the conspiracy ended in 2018, the Crisley's had paid about $2 million towards their delinquent taxes. The prosecution team looked at that and said, huh, we didn't know about any of these. Nobody told us that the IRS civil side had not made us aware, which is why Agent Kinzelor, the IRS, criminal investigative agent, reached out to Officer Carter, who went into the system and saw and reported back to us, nothing about what was doing owing for any years. Only that there was a $500,000 payment towards the 2016 tax year that remained uncredited to Todd Crisley. That was the extent of what we found out during trial. And we didn't disclose that to the Crisley's, because the Crisley's of course were the ones who made us aware of the payment. That information was in their knowledge and they went on and this goes to the third point of materiality. This could not, as Judge Rose and Bomb Pointed out, this could not have impacted the jury's determination ultimately in their reaching their verdict of guilty, because ultimately the Crisley's presented through two witnesses, two of their own witnesses, and through documentary evidence that they made $2 million in post conspiracy period payments towards the IRS. They had two witnesses. And you didn't, did you challenge that at all? None. Well, Judge Rose and Bomb. In fact, we never cross it. Is the M into them about it? In closing, what did you say about it? In closing. My colleague, AUSA, Mr. Crap got up, and he said, you've heard that the Crisley's have paid their debts. You've heard that they paid the IRS back. He then went on to, basically, conceding, you've heard it. They paid it all back. He then went on to argue, but that doesn't matter because you can't un-rob the bank. You can't pay back the money and undo the crime. And that was consistent with the jury instruction that the district court gave, which is that evidence of delinquent payments was allowed in at trial, and the jury could consider those, but later actions do not nullify the crime. And here the evidence was overwhelming at trial that the Crisley's had taken a number of steps to evade the IRS and they conspired to evade the IRS. And so whether or not any taxes were doing owing at the time of trial was immaterial to any element of any charge in this case. And in any event, as you started out by asking judges in bomb, the Crisley defendant did owe taxes as of the time of trial. I'd like to briefly note on the hearing front again. Let me ask you something. So if we go back and we look at the record and we conclude that the facts are as you're friend across the aisle has described them, then let me just ask you, was it error for the district court not to hold an evidentiary hearing? It wasn't a runner. And why is that? Because it was immaterial. It could not have impacted the jury's verdict. And that's because taxes were doing owing. And even if they had been fully paid, which they weren't, the jury heard that evidence from two defense witnesses. And you didn't rely on it. We never brought it up again in submission. In fact, in closing, we conceded and told the jury, you've heard that the Crisley's have paid back their debt. And defense counsel argued the same thing. He argued in closing, you've heard that in fact the IRS owes the Crisley defendant's money back. And if there were evidence that there was an act of fraud that was perpetrated on the court by the prosecution and the agent, you would agree that it would be appropriate for the court to hold a hearing on that. Yes, sure. Of course. And the cases where an evidentiary hearing has been granted post trial are wildly different from the facts and circumstances in this case. For instance, the Guzman case, which was a AVS case based on a post conviction where the defendant was sentenced to death after a murder, the evidence that warranted a hearing there was that both the lead case agent and the government's key witness had lied at trial about the fact that the key witness had received a $500 payment in sort of an exchange for her testimony. Her officer Carter was not a case agent. She was not part of the prosecution team. She was one of four IRS civil employees who testified at trial for less than a day among dozens and dozens of witnesses. And certainly the defense has come up with no credible allegations other than a few innocuous affidapits saying that the government met with officer Carter to prepare her for her testimony as we do in every case and that a number of IRS employees including officer Carter looked at a bunch of others. The other case is the Hernandez, Espinoza Hernandez case. And again, the allegations there after trial that warranted her hearing were a far cry from what we have here. And that case was the agent was under investigation for drug activity, right? And it was a drug activity related. That's right. Okay, from prison and had lied during their job application about prior drug activity in a drug case. So a far, far cry from what we have here. So yes, if there are credible allegations and evidence, profit about any sort of government misconduct, a hearing should be had and that's simply not what we have in this case. So for all those reasons, you're on the district court did not abuse its discretion in declining to hold a hearing on the giglio claim. And in fact, the district court tried to shut down these merit-less allegations on numerous occasions and noted in her 78-page order on the motion for reconsideration that the defendant filed that she was against surprised that they had raised these allegations without any evidence behind them. Turning briefly to the court's decision to deny defendant Tarantino's motion for severance, there was no abuse of discretion by the court on that point. What about the fact that both of the Chris Lee's the court found, I guess, had been involved in some kind of obstruction? Does that, did that in any way, was that unfair to Mr. Tarantino since I don't think there was a similar situation there? It was not your honor, as my colleague acknowledged the court did give a limiting instruction in this case. And all of the record shows that the jury, in fact, was able to follow the court's instructions and consider the evidence as to each defendant. The jury deliberated for nearly three days, they came back and asked multiple questions that indicated that they were, in fact, considering the evidence as to each defendant. One of the questions they asked was whether they could review a certain piece of evidence that related specifically to defendant Tarantino. Overall, it showed that they considered the evidence as to each defendant. And this case is very unlike the pedric case that the defendant's have relied on. That was the only 11th circuit case that has been cited where it was found that a co-conspirator should be severed off from his co-dependence to be tried separately for the same conspiracy. And that case is again a far cry from what this one is. And Patrick, the defendant was one of the defendants was convicted with his co-dependent of a conspiracy, but then in addition, convicted of about 80 counts of committing false billing, submitting false billing things to the United States government. And in that case, the jury deliberated for only three hours. And there was no evidence at all that Patrick, that defendant, had ever been involved and even submitting anything to the court. By contrast, Tarantino was only convicted of the three crimes that he was specifically involved in. He was a part of the conspiracy period with the Chris Lees to obstruct the IRS. And then he personally submitted the two blank and misleading IRS formal 1120S's to the IRS that he was convicted of. He made numerous misdemeurism, misleading information to the IRS. He told numerous lies to the IRS to three or four different revenue officers who were all involved in this. So this case is a far cry from Patrick. And the presumption, of course, is that co-conspirators should be tried together. And the defendant has not met his burden of showing any actual compelling prejudice that resulted from this. Thank you, Council. Thank you, Mayor Ash. All right, we'll hear again from Mr. Little. You're not just the Sergeant of the Sheriff's Law and the Hav hearings and why you have district courts. What the government just told you isn't true. It's not in the record. I can't cross examine her, but that's what the district court can let me do. Well, let me ask you something. You have, I asked you before about what evidence you were lying on to show that there was some kind of conspiracy between the prosecution and the agent to have her testify to something that they knew was misleading. And you said, well, look at page 304 and declaration. But you didn't tell me specifically what you're relying on there. Can you be a little bit more specific? In our brief in the reply brief, we walk through specific knowledge and we relate it back to the affidavits as to what they knew and when they know it. Do you have anything more than that, though? Because I will tell you that when I reviewed that, that seemed to me like just pure speculation. Page 292 is the response to the court and the new trial. Sorry, docket 292 is the response to the new trial motion. And in that response, they say, I believe it's a page like 17 or 18. They say, well, the prosecution team relied on the EUP in sort of preparing its case and putting on its case. They also reckon, they acknowledge later that the EUP was mistaken. And so if they both know the EUP is mistaken and they know that they've relied upon it, I think that's the prima facie. They had to have known that it was mistaken at the time. I mean, the fact that they later figure out that it's mistaken doesn't tell us anything about their ill will at the time they relied upon it. And this court or the district court thinks they didn't know back then is because there's a presumption that the government is telling the truth. There is nothing in the record. Well, what stopped you from crossing examining? Well, you're right. No, no, I'm sure is, and demanding the production of the records on which the witness is basically your testimony. A lot of our testimony, your agree, was based on records, documents, all subject to the best evidence rule, produced all the documents on what you're going to testify. Then she had some other testimony about things she did as a revenue agent, which are not documented basically. The recess could have been asked for by the court and have the government produced the documents on which she's making the testimony. Thanks for that. You know what I think? The C-9 years. In 771 to page 775 of day three, volume three of the testimony, when Bruce Morris asks these questions of the witness. He's not asking just about documents. He's asking her what her knowledge is, of what his client is. I know, but to her knowledge of whether something's been paid is, as based on document. Yes, and all of a day. All of it's based on document. And it talks that a bit shows that the IRS audit trail that Ms. Carter looked at would have shown her that those payments would have extinguished any liability. So those documents, the defense did not have at the time of trial. We didn't get it until the three days after. I know that the defense didn't have what I'm saying is a sour bar conference with the judge. Using the problem, you got to recess, straight into the situation out. And that's the way that he used to be done. And he wanted to be happy to be tested by truthfully about the extent of her knowledge. And I want to point that out because they say here again, at the Court of Appeals, that 2016 is still owing. In the trial, the testimony specifically of Bruce II at trial, at PID, 3348 to 49, is the IRS owes them a couple thousand dollars minimum. They're definitely overpaid for 2016 and prior. He also said that in his declaration, and I'm a stake at the number. It wasn't 304, it was 258-1. It is the eighth paragraph of 258-1, that same representation. According to the account, who saw these payments, who saw they've outdo, there was nothing to do at the time of trial. And so I think the error needs to be completed because the only thing we have is the code and the code. All right, thank you, Council.

This is the tell the arena. Good morning, you honors. May please the court. Arena Croft Chinkha represent the Fennan of Pellan Office of Marino in the Sepeal. It is office of Marino's contention that the district court aired when a decline to dismiss the malicious prosecution claim against him based upon qualified immunity. The honors first of all, this court has jurisdiction to hear this interlocatory appeal, because it is office of Marino's position that qualified immunity, he's entitled to qualified immunity as a matter of low-based upon place in the version of the facts. As plain to the legend, the complaint, as plaintiff said fourth in his deposition, and as plaintiff stated in the local rule 56.1. So one of the things that I, I mean, you obviously know our law that suggests that just saying that you are as thefting there has been not actually doing it is not going to be enough. So can you tell me is your, what exactly do you claim that is not in dispute that supports the idea of a or supports you having probable cause? Like, what specific facts? Absolutely. I actually only found one. And I was standing the fact that you guys had a bunch. What, that you alleged were going to dispute? What, what are the ones they sought to pick up in dispute? The most pertinent in office of Marino's belief is dispositive with respect to his issue is plaintiffs admission and local rule statement that in the, my quote, plaintiff, I'm sorry. I'm sorry. Plaintiff does not dispute the allegations in paragraph 27 to the extent that the and taxilizer 5,000 returned the blood alcohol reading content reading of 0.241. So this fact is admitted by plaintiff as I'm refuted. Officer Marino did not perform the breathalizer results at different officer did. Officer Marino was provided with a report that contained that blood alcohol content level of 0.241. What I understood him proclaiming was that he admits that officer really claimed it, but he does not admit that his results were up here. Absolutely, on a bit, his plaintiff's contention, however, is not applicable to Officer Marino. Officer Marino had nothing to do again with administering the test. He merely was given, it was being written there a poor. You're saying that his farest officer Marino, he didn't know any claims about whoever the mouthpiece was correct or not correct. All he saw was the result, and as far as Officer Marino, that result was sufficient to justify. Absolutely, you want to, that is exactly Officer Marino's position, that result, a law. It might be that the brief test was wrong. That will deal with Officer Revee. But as far as your client is concerned, he was, could rely on what was agreed upon was the result of that test. Absolutely, you want it. It is unrefuted that the report provided to Officer Marino stated, blood, alcohol content, as point two for one, which exceeds the driving while intoxicated standard, aggravated driving while intoxicated, and all the related statutes too. The information that was before him was enough to charge, plaintiff, with all of the charges that he did. There was additional observations that were made at the time of their arrest, which it is Officer Marino's positions are irrelevant, because there is no false arrest claim, and we do have the test. However, plaintiff also admitted, and those are some of the other facts, throughout that he refused to perform roadside testing. He refused to answer questions. He simply didn't do it. And he also said, I could not do it. So it was number two, is there a disagreement about the fact, says to how that refusal to play? I mean, I hear your client side that he failed the portions of the test. He may not have been willingly participating. But he was obviously drunk when he was performing. While on the other side, you have a father who is distracted by the fact that his son is still in the car, and he is essentially refusing to be cooperative, but he's stereotyped, sold sober from all observation. That seems like something that you're not, I mean, you're not conceiting that. You want it? You're not asking us to accept that, or you're not saying we willingly accept that for any of the facts. You want to under it is officer marina's position that even under that version of the facts, the arguable probable cause test has been met. Because the test is, would an reasonable officer an officer marina's position believe that there was ground to arrest, and or would reasonable officer disagree. So in the end, you are saying that as far as officer marina, we don't need to do that because you have a breathalizer that he had no reason and no one claims that he had any reason to believe was in that character. Absolutely, y'all. I have one more question before you step down. Can you tell me how we should understand that people versus Vanderberg's, and you are a quarter of a field's case? And my understanding, or migrating about case, is that failing to complete a field test on its own would not be enough for problem costs? Paying to complete a field test? Sorry. You said the case, I don't have the case handy. This is, you said failing to complete a field test is not enough. And so that's that to make a good question. The question of how much could he rely and infer from the fact that he didn't complete it. Your client says it was because he was drunk. He says it was something else. My question is, does it matter if that alone would not be enough for problem costs? The answer is twofold. Number one, we're talking about arguable probable costs here. Again, we just need a reasonable disagreement. If somebody is not performing the test, a reasonable officer could believe that this person is in touch. So you're saying that as a matter of law, it would be sufficient to find arguable probable costs just by solely just by the failure to complete a field test. Well, it's not just that. It's that ultimately then officer Marina is just completing the field test. Would that alone be enough? And what is the case while you have this who just that? You want to, that is not officer Marina's position that that alone is enough. And these facts of this case are not the same. And ultimately, there was the breathalizer test result. That's the ultimate undisputed fact that is controlling for officer Marina's position. Thank you. May it please the court. My name is Howard Miller. I'm here on behalf of Officer Reevee. I think this case can't be distinguished from the Kendall case that this court decided. In that case, all you had was someone who had fallen asleep. They discovered a half a bottle of beer in the car and his eye for watery. And this court found that there was probable cause to arrest. And in the Kendall case, the person actually passed the field surprised you. I said that you're not a lead. OK, so it is disputed that his eyes were bloodshot. And it is not disputed that he didn't have alcohol. So why is that case wrong? So because first of all, it's not disputed that he said he had drunk the night before. He had not shower. His allergies were bothering him. And when the breathalizer test was administered, it blew the point to four. Well, the problem is that as to Officer Reevee, there is a question of fact, we respect the breathalizer. Well, because he says he took it out of his pocket and how Sir Reevee says, no, it was a no one. And you know, I may well believe in the grief of that, but isn't that a question of fact. So you can't rely on Officer Reevee, no, says that as far as he was concerned, this test has to be taken as real. So you have to tell us something about why there was either probable cause or arguable probable cause before his question, breathalizer, and that goes to what happened at the scene. Now, what is undisputed at the scene that would give your client arguable probable cause? Or maybe better like you. Okay, so can I just first address the breathalizer test? You can't create an issue of fact by just making a conclusion or obligation that the test results were fabricated. If that were the case, then every time he was a breathalizer test, we're going to trial. Now we defeat the purpose of qualified conclusion. You've become so. Yes. But here there is a question of where they got the mouthpiece. That's correct. And that he says he took an old mouthpiece and your client says no, I took an old one. And that sounds like an allocation of fact. Now, it may be that on the fact that disappears, but that sounds like an allocation of fact. Well, so even if there was, I'm not saying, no, I understand what you're saying. No, but the result of the test. Thank you, Ron. I understand what you're saying. The district court found that there was no evidence that that made any difference in the test result. So we still have just a conclusion obligation that the test result was wrong. And again, in the case law that we cited, we cited all these cases where someone just said, I didn't smell like alcohol. My eyes were fine. I was sober and your test results were all wrong. And qualified immunity was still granted. Again, were that not the case every time somebody's pulled over for DWI, they're going to just say, everything the author said is all I. And if that's true, then every case is going to go to trial which defeats the purpose of qualified immunity. We also cited a case by Judge Sibal with the District Southern District where she talked about, we don't want to create deterrence to pulling people old. Yes. First, it doesn't mean the thing qualified immunity is not there. Yes. It means that there is not an appeal now because there is a question of that. And then when you get it may be that after the positions of the things, there is no question of fact and then qualified immunity can apply. So what I want you to tell me because the question of whether the breathalyzer test came out one way or another is not the issue of fact that the posing party raises. The question is did they use a proper breathalyzer mouthpiece? And that's the question of fact. But I want to know is what there was at the scene. And by the way, I think you're probably right that there was enough at the scene so that there was no question of fact as to bear. But I'd like you to tell me. So we go off into something that I want to tell you. I understand you're on. So what you had at the scene, first all you had a serious accident, you had someone who said yes, I was drinking the night before. He had not shower. So you could still have the smell of alcohol on you. He said, well, I have bad allergies. I was driving with the top down. I'm sorry. Yep. Is it conceited that he had the smell of alcohol? He says that he didn't. But again, we side cases. He said, he said that drank before. I agree with you that if he had said the risvist smell of alcohol, but don't worry. It comes from the night before that would not be enough. Yes. He said, conceited that he had the smell of alcohol. I would not know. Is it conceited that he had the smell of alcohol? He said, conceited that he had bloodiides. What is it? He doesn't. So he doesn't conceited. But again, we side cases where there was specific denials. And those were still found in favor of the police officers on qualified immunity. Whether or not otherwise, I could just say if I'm pulled over. Saying that their client might not prevail on qualified immunity. The question right now is under a precedent under a shock. Is it inappropriate for us not to let this case proceed so that a court, a trial, who would determine whether or not would apply? Yes, it is. If we look at the whole purpose of qualified immunity, you don't want to go to the... I remember, helped me if we went back to the facts for just a moment. So on the question of did he smell of alcohol? The police officers says, at the scene he did. He says he didn't. And you offer explanation of it, say, why he might. But it still seems to me you have a dispute as to that fact as to what the... We can't resolve right now. We don't have a dispute of what the officer smelled. We have a dispute that the Kai said, no, I didn't drink and I don't smell. And again, again, this would happen every time somebody is pulled over. I don't want to officer just say every time it was wrong. I mean, you're asking us to say that one person's testimony doesn't count, but somebody else's testimony. No, I'm not asking that. I'm saying that there's, you can't create an issue of fact. We'll go back, put aside everything that happened to the scene on the brisket. What could you go back and tell me what at the scene Mr. Patel conceded was the case. Yes. That was enough under a very easy, arguable problem. It's enough that you can tell me what it was. You know, he smelled a well-taught because he said, I did. It's enough that he said he was drinking the night before. And you mean that anytime somebody conceives that they were drinking the night before, they can be arrested the next day. If they're in a serious accident and then they fail to feel sobriety, tell me yes. Yes. We're mad as you. I laid it out in our brief, many cases, where people said I could not, I could not have people say I could not possibly smell the alcohol. And they still awarded. That is arguing whether they smelled the well-taught. You are now saying that with somebody conceives that they drank the night before, that is enough where let you store rest of the night before. No, when we look, I'm just going to make sure I'm understand your record correctly. At the scene, Mr. Patel didn't say, I may smell alcohol because I'm drinking the night. He did not say I smell alcohol. I just want to be clear about that. He did not say that. But if we... I'm not going to finish. Yeah. If he didn't say that at the scene, I'm having difficulties seeing how the officer could rely on why we don't have a factual dispute as to whether he did it or did not smell alcohol. It's not alcohol. The officer probably didn't rely on it. It's an element of probable cause, but I can't resolve that. No, what you can look at is again, there's a see... Officers come upon a serious accident. They talked to the gentleman who says, I was drinking the night before. And he says, I had bad allergies, which is why my eyes are what they are and who's driving. It was pollen. Then he sails the field sobriety test. Then they bring him for breathless or test. You can't create an issue of fact that the breathalizer test was wrong. I just speculating that it was wrong. That's it. So back to where you keep going to the breathalizer test. And I'm telling you, I don't buy it. So if we go back to the scene, go back to the scene. Okay. I'll tell me. Going back to the scene again, if we look just at the scene under the case law, and this is under the kind of case, they come upon a serious accident with a gentleman who says the night before I was drinking. And then he fails to feel sobriety. So going back to what you said, fail in the scene. I'm going to make sure so that we can pull these apart because this matters and it matters to all three of us. Yes. Sirius accident by itself. No. Sirius, okay, not by itself. Drinking the night before by itself. By itself, no. No. Okay. And then not completing the field sobriety test by itself. As you said, as a quarter of appeals case, that said, it's not by itself. Okay, not by itself. We combine them. We get our people from the public house. That all three of those things that not by itself are enough. And then what about him disputing any of them? For example, he said he was drinking the night before, but he is saying you cannot infer from that that I was drunk. I think, again, if you look at the case law, when you combine all three of these things, you have arguable probable cause, and the standard for qualified immunity, whatever. What about his eyes? And conceding that he couldn't see is that enough to make a difference? Conceding that he couldn't see that he couldn't that he looked blurry. He looked blurry. Again, if you look at the entirety of the situation that they were faced with, someone who said he was drinking the night before, he said, my eyes are the way they are because I have bad allergies. I forgot to take my medicine, and I'm driving with the rooftop. Are you saying that his eyes be that way? And to gather with what is not enough by itself, his failure to do the roadside. So Brian, is he not? Yes. That is the key. The question is, are those things which are conceited enough? Yes. Only thing that is. Yes, and that hits the nail on the head. And this falls right into your can do case. It falls right into the akin do case where watery eyes wouldn't have enough. Somebody's beer could have been a friend. And this is in the brief where he disputes that he had glassy eyes. I see Marina Fossley claimed that the tell had glassy eyes. That's a page four. First spoke with Patel and Deanna, note Alina first spoke with him. And didn't have slurred speech or glassy eyes. That's at seven. No eyes were not a glassy at 24. At four, greedy falsely contended that he spends and that his bloodshot and were a glassy. So I see him actually disputing. He does the bloodshot and the glassy. I don't think he's disputing that his eyes were red because he talks about an explanation for that being his allergies. When someone said that if my eyes were glassy, if my eyes were red, maybe they could have been. Because I didn't do that. So I see him conceding in any of the cases. But are you asking us to infer that because he offered the explanation that they must have been glassy? I'm asking what a reasonable officer would believe it. That serves as a same problem. As if when we go back to smell of alcohol, the officer says, I smell alcohol, he says you don't. But if you do, I was drinking for night before, which is not. So the question is the same where respect of his eyes does he conceive with his eyes in glassy and so on? Or does the officers say, your eyes are glassy-kin? And he said, well, if they are, it's because I have an allergy. That's enough to say things as he's saying my eyes are glassy. And I don't know of his record. What I have to take as a... I think you have to take that the officer observed his eyes being red and that's the explanation he gave. Then I would go back to the Ocendo case with the person who was pulled over, denied absolutely every aspect of everything. And this court ruled in favor of the police officer. And I would go back to, then if that's going to be the standard, if all the person has to do is deny, no matter what, then we're going to trial every single case like this. And that's not been the longness, circuit. OK. Thank you. We've been part of you, but it's, you know, of a real, a real, a real, a real, a real, a real. Good morning, Scott Quarrenbaum for Mr. Patel. I want to address one fact that the claim was not that he had red eyes. The claim was that he had glassy eyes. That's a world of difference. And if maybe I shouldn't conceive this, but if I would pulled over after an accident, I could be arrested for drunk driving because I had a drink last night. That's not the law. It's never been the law. Here are the disputed facts starting with marino. And there's overlap between marino and revie. Obviously. There's a, we gone through it, right? So I mean, I think what you need to do is either tell us why it's not enough, or why any of them combine, like right? So the ones that we're talking about are whether or not there's a dispute as to the bloodshot eyes, whether or not there's a dispute as to the, whether or not he smelled. And whether or not there's a dispute about whether or not he pulled it out of his pocket. The other question that is not, that you do not dispute was that he didn't complete his field of rioty tests. That's true. So the big question is either why they don't together, or he will have a problem cause, or whether they, they don't. Everything that Mr. Miller said is disputed. Alcohol. Alcohol. He would, and then they would also say they can't just merely dispute. Sure. I have to do more than that. So that's where we're trying to focus. But there's, there's, there's more. Let's start with the alcohol on the breath. I don't know how you can do anything other than say there's no alcohol on the breath, but he gave an excellent explanation, Mr. Patel. I had two and a half drinks night before. I had a full breakfast. I played basketball with my son for the better portion of a few hours. None of that would matter if he actually had alcohol in his breath and didn't dispute it. That is, his explanation would not be enough. But question is, does he dispute that he has alcohol in his breath? And the answer to that, I think, on the record is yes. Yes. So the question that we ask is, the one thing that is not disputed is that he failed the test at the scene and that by itself, under the appropriate law is not enough. So is there anything else that is not disputed that makes that be enough in which case you lose or is there nothing in which case you win against off the revie, not necessarily in the Reno if we buy the notion that the ultimate breath-alizer test was not disputed as to off the Reno. I'll answer your question. Literally in a second, I was addressing the specific laundry list of facts on the scene that raised by Justice Petta. But just as far as the field's variety tests, Reno knew, again, revie's not at the scene. Marino knew that he was injured, knew that Petta was injured. Because Petta was repeatedly claiming him, I'm injured in requesting medical assistance. He knows that he's concerned about his son and if on summary judgment you're going to draw all inferences in Mr. Petta's favor, coupling that with no alcohol on the breath, no glossy eyes, no slurred speech which were all claims made by Marino. Collectively, that leads to an officer saying, now I know why he can't pass all the fields by the test. And remember, part of the claim was he was refusing to do them in the first instance. And Petta says convincingly, at least a jury could find, that he knew I was fine and didn't even order the test until I started. When I questioned him, why are you doing an accident report right now when I'm concerned about my son in a decent of being injured? But that's when he says, ah ha, alcohol on the breath. And there's no other way you can challenge alcohol on the breath other than it deny. I raised the facts about the breakfast in the basketball just because that's reasons to doubt any alcohol on breath which was the first laundry list of facts. And so one other thing, this point two four one, that's blood out. That is, you are blank faced, pardoned by French. Nobody says that. And I really, and there's a dispute of fact about the first officer to arrive on the scene as Officer Alvina. All right. Now they say and correctly his deposition testimony was, was that I didn't notice anything, but I wasn't really paying attention. Well, if you approach somebody, the driver who's, literally below a point two four one, and it would have been a tiny bit higher given the length of the gap, you're noticing something. You are absolutely noticing something. Just as per as, I agree with your reading. I'm not now pivoting to the blood out well, you know, the breath of the life circle, whatever they called it. Excuse me. There is evidence from which certainly with respect to rebe, Judge Calabrezi, I agree completely about the disputed issue of the material fact. I think this court should have firm because there is, as we argue, there is in subject matter jurisdiction because of the disputed facts and Judge Locke, Matt Strait Judge Locke's decision and his reliance on those disputed facts. But there's even a few questions. Again, point two four one, nobody says he's looking like a point two four one and at the criminal trial officer revy testified admitted on cross examination that Mr. Patel exhibited no symptoms consistent with that type of reading. So your argument is that both officers, Marino and Revy should have if the machine came to, if that was the reading they should have immediately. They should have done it again or questioned it because, and again, remember what Mr. Patel says happened upon being told, again, he says he never saw the actual readout. But upon being told, he's like, that can't be. Let's do a retest. I'm willing to do a blood test, which from what I understand, I'm not an expert in this area, but from when I understand it's more reliable. Now, they have an explanation thing, well, we don't do that. But if everybody knows the reading and everybody being Marino and Revy, everybody knows that this can't be because there are no, it's word, corroborative, corroborative symptoms, coupling that now. And I'm sort of pivoting a little bit to the merits. If they all know it's wrong, why the lies on this record, the jury could find that they lied about every single thing except the reading itself. And with that, I think A, this court doesn't have subject matter jurisdiction, but B, it can affirm. I want to, in addition to additional questions, I want to raise two, a few other points. And I have a problem there that if the officers lied about all sorts of things, but the word admitted facts that everybody agreed on that they'd rise to probable cause, our cases say that malicious prosecution does not lie. They may be liable for lying, they may be liable for other things, but malicious prosecution does lie. I don't like that, but that's what our cases say. So it doesn't help you except if the lies mean that there is no agreement on facts that by themselves would be enough to support malicious prosecution. And that's where we were pressing the other side. Sure, and as a general proposition, I agree with that Judge Calibrezi, but not on this record, because there are all the disputes. Again, you mean the evidence and light most favorable to Mr. Patel, there are lies except that the reading was 0.241. And Judge Paul, as we argued in our brief, I think you were reading of what was if made it as correct, which is that's what Patel claims, Revy said. Now, I went back and I have what was stated, and he said, and I can't escape from the 56.1B statement in which where does he say it? They acknowledge that's what was read, but the reason why I think your reading is correct, which was our reading, Judge Paris, is why the other additional explanations, which I think gives form to that admission. The thing I, Judge Calibrezi, I want to make two sort of unrelated points, one, well, related, but even if you agree that qualified immunity is wanted, which we don't think on this record as appropriate, the state law claims survives, based on this court's decision in true all-overs as national county. Again, not probable cause, but if it finds qualified immunity. The other is all of this case law that Mr. Revy, that officer Revy's counsel is referring to showed up for the first time in the reply brief. There are arguments being raised in the reply brief for the first time. You said the state law claims survives against both of them or against officer Revy, because one thing that we could do in that, if we disagree with you with respect to officer Revy, we could then dismiss as his claim, because that it would no longer hear with a prejudice the state law claim and maintain the other one. So two responses, what I should have added is it survives against the county. The state law claim under this law, that's, I'm sorry if I was not clear. But yes, it is conceivable that the claims could survive against, could, one person, or a memberino, but not Revy. I think there's enough to hold both. So I want to go back to Marino, because you are conceiting, I just want to be very clear. You are conceiting that your client said they said it was 0.1. If that is true, why do you still have a plan against Marino? Because Marino knows or should know that there's nothing corroborative about that. And there's, in other words, if, no. Opposite council has said that officer Marino knows nothing about the being a claim that the mouthpiece was somehow defective, I'm using that general. If that is so, why can't officer Marino rely on the conception of that result? Because officer Marino has reason to believe if it's a question of fact, whether of a mouthpiece was valid, and then he's in the same situation as officer Revy. I don't think he knows about the mouthpiece. I have to concede that. If, if I'm wrong about that, can I write a 28J letter just to point that out? But, but I, isn't your answer that Marino was the one on the scene? So he knows that he's sober. Correct. So this was a lucky break. Right. If, you know, the fact that Revy told him that. Right. And even if it's 100% true, Revy told him that. He knows it's not true, but absolutely. Absolutely. That's your argument about why we still get Marino. And there's, there's evidence in the record about how Revy turns to him and said, I got him for you. That could be some evidence of them having gathered to, you know, I hate to, and this kind of thing, I hate the word conspires. It's evidence of conspiracy to get us over that. So you're right. So there's addition, not a lot. I'm not gonna lie. But there's some additional evidence in the record that we point out in our brief that that suggests that above the fact that he knows he's not drunk. And that's something's rotten and demark that also, it's a little additional stuff. I see my time is up. Thank you very much. Your honor, I will, I will waive a bottle on, that's the bench has questions for me. Thank you. Just very briefly. Officer Revy was also allowed to rely on what Marino told him, was that the scene, so if there was probably a cause at the scene, then there's probably a cause for what Officer Revy did. The other thing I just want to mention briefly is that there's no evidence of any kind of malice here. And that was addressed in our brief. With that, thank you. Thank you all, and we will take a matter of under advisement.

is severing the New York City Department of Education. May it please the court, morning and morning, Brian Gilles for a Pellon and Jean Richard Severin. I'd like to start by saying that I think the district court wrote a very good decision on the motion to dismiss. It was very well-reasoned. They're really captured the facts about the retaliatory animist in this case that that's more than we see in other cases. I mean, we have verbal and physical threats from a principle after you found out that Mr. Severin had made a report about possible test cheating to SCI. We have 46 disciplinary actions at three months. We have a special cooling off period from the superintendent because the relationship had gotten so sour. We have a finding by a first arbitrator that found James Brown found that there was animus in his decision. I think the first issue about a substantial motivating factor for his termination and for the things that happened to him. I don't think that's a hard issue for the court to find that that should be for a jury. Even if you said that the termination was warranted under subsequent actions, there's a lot of retaliatory actions that happened before you even got to termination, like 46 disciplinary letters. But I don't have much problem with the fact that there were other things. But the initial actions could be unless they are covered by Garcetti and one row. You know? The question for me is was he speaking as an outside public citizen or just as an employee? No. It's easy enough to see that I don't like our city. I descended in one row, but there it is. And I find it very hard to see how your case isn't covered by one trial because it gives our opinion, what the walkers have been in mathematics. What I'd like you to tell me because I'd love to know away. Yeah. I'm glad you're recognized. I do think that's the murky issue. In fact, the city did even move to dismiss initially. The motion dismissed. They didn't even raise the first amendment argument. So we did all this discovery and then all of a sudden, where we get the first amendment issue, which is usually a draw on a motion that is missing my experience. One trial is a grievance. The grievance had been filed in that case. So you could distinguish that on the basis that he went to SCI. I think SCI has been recognized as open to anybody can file with SCI. It's like an inspector general for the city. I do think that you know, Regents proctoring in general is can be done by anyone. It doesn't even have to be done by a teacher. So I know that the hardest thing is the part and parcel of the job duties for the wine trial business. But you know, he wasn't even really part of the school, officially at that point. He just happened to write in on the first interview come in and look at this and saw the conduct that the principal was trying to engage in. So the district court points out there have been in a description of reporting obligations of employees of the public school system. And why wouldn't that cover your clients? What? The application here. Well, there is this two problems. First, I think it's a little murky about what the duty to report and when there's a duty to report. I also just want to pause it and encourage to me that if you think about it as an employee in a situation like that. If he has a duty to report, isn't that a license for the principal finds out about it? Isn't this a license to the basically retaliate against them with impunity if we can't hold them accountable? Well, this, you underlined, probably in Garcetti and White Rout. I mean, that's there all the time, which is why I don't like for it. But it wasn't this typically the sort of thing that somebody did wrong in employment and the number of employees as an employee had a duty to speak to the union to do this, to do all the things that your client did. But as an employee, I'm not saying that the issue wasn't important enough so that first amendment involved in serveir, it's not the part of it. It's entirely whether or not there are cases what he was doing was under an employee and what you're saying is a problem, but it's a problem of that whole amount of cases. I think it's been murky for years. I think the person in Garcetti, I think it's, you know, we look at each individual facts of each case and I think there's some murky elements here. I don't know if the motive is all that relevant here, there's the cities in the arguing that, well, he really didn't have that much concern about it until later. I think it's not so clear that there is a duty report SGI and everything here. And so I don't think that's the relevant issue to be decided. You have to kind of look at the balancing test. There's also, I think Susev versus Rob says, if it's a close question, it should go through the jury. And so I do recognize that is tricky in these cases. But here there's a murkyness and even the city, by not even moving to dismiss, it's kind of recognize the murkyness here. And I do think that, you know, it's important for, you know, someone in this situation to have some right to protect himself when he tries to do the right thing. And he did report serious misconduct. And one thing about this record, you know, they did a good job sort of making Mr. Severn look terrible. But look at the principle we're talking about here. We got a test shooting. We got Mr. Barnett. Mr. Barnett is represented by separate counsel because they had an appropriate relationship and she claimed he would tell it and against her. So a lot of things came out on this record. This is like, not a good guy. I'd say Mr. Severn is a choir boy compared to this. I think that's one of the other part of the first amendment you've worried. Can you point to me where in the complaint you will let you know what the matter public concern is? I mean, I don't know whether it's the violent and the procedural rules of taking it out of the vault. I don't know if it's he asked a teacher to give the person pointers. I don't know if it's after the student had already failed it. Somehow coming up with a scheme to alter the results. I mean, I don't see what is alleged that the public would care about and the public. I mean, I think the public would be helping a student who had already indisputably failed. I mean, they couldn't go back and change her results. Well, I think it had to do with the integrity of the test. But what is the issue that was where in your complaint do you alleged a matter of public concern? You alleged that there was a conversation and I'm looking at the parents about the student failing the test and plaintive asked him to review the regents test and then took out a pencil. As if he was going to make the test, where's the public concern and any of this? Well, I think it has to close the clearly, the integrity of the regents testing process and this principles willingness to change answers to let the student pass and I think his reaction when he did the student already failed that, right? I mean, this is a suggestion was that the principal was trying to change her answer so she could get enough points to pass the test. But did the student who already failed? Yeah, so that she would pass the exams so that she would... The public concern is what? The integrity of the... The integrity of the regents testing process that if he was going to try to change the answer until Mr. Severn saw what he was doing and he changed his... he covered it up right away when Mr. Severn questioned sort of what he was doing there, which was the change the testing process. So I think I did have another case that I think George Livingston was on the panel for a tell-out years ago. They went to trial and ultimately the... he the person Mr. Pratella's lost but it was an issue about he reported his principal for budget fraud. And so you've got to argue that also would be potentially, right out of here in the school and you have some interest in, you know, how the money spent and like did that went to trial? What was it specific enough? What do you... where do you think is the public concern in your complaint that you think would be specific enough for a assess whether or not it was a matter of public concern? Do you have a paragraph that you think? You know, I'd have to pop the complaint at the moment, but I do think that I don't think it was even more like a challenge that by even a district court or the city that there was a public concern on it. The point is different from whether or might be a public concern but whether in your complaint you went from the specific instance to something that would be of general thing. It is that in your complaint you didn't talk about the specific student but that a principle of that sort would be doing something that the public at large and I think that's what my fellow judges questioning about the complaint. Yeah, I think the very fact that he went to S.E.I. suggested that in the Union suggested he did plays into his notion that they thought this was an issue beyond just a little thing that decided to do with the integrity of the testing process. That's a different thing from the complaint. That's the question. Right, yeah. But I do think that was sort of a dressing that the discovery part of this. So I do think there's a... there's a... Markiness of the factors in all these cases as I understand. I think you could argue that a budget... why would a budgetary process issue that if someone reports be different than a region's testing process? It's... everything could be a scope for someone's job duties. That's why it would be such a difficult line because they could always claim as part of a person in your duties. That's the S.E.I. regulations that you have to report anything about testing. It's so broadly written that it's just not really clear when you have to go when you don't have to go. If that was the case, everywhere we have to report everybody under that standard. So they try to keep it as broad as possible to try to cut capture all corruption. But that's why they exist. And you're not going to... we're not going to have every employee coming back to knew about this. You know, you may have to do the report himself. You know, so... You're just... Because you have limited time. So let me ask you, if you want to address briefly the alternative ground district court relied on the Mount Healthy Defense in light of the fact that you're client of the Scout to a committed various acts of misconduct and the arbitration. Well, two things, again, I mentioned for a tell us. That was an issue that the jury decided it was been as a jury instruction. So I think that's the appropriate time to address that. The other issue, again, is I think it's more of a damage is cut off question here because I don't think... Remember, the standard is some adverse action. And so before you even get through his termination, we've had multiple adverse actions of this pretty letters and might, you know, 46 letters. So that by itself, even if you only... If you get to step one with Judge Brown, a James Brown's decision, you could just limit damages to that point and say, wasn't he retaliated for that activity and that was still within the time of leaving this subject. So I would say that even at the end of, I would argue that essentially, you might say that by the limitation on damages ultimately, if you found that there was some basis to ultimately terminate him. But I do think that you could still have a question for jury. Was there some tension motivated factor for these letters and everything that followed and all these comments? And without this way, the reason, well, a person from coming forward under those circumstances. So I don't think that's the hard of a case. Okay, thank you. Good morning, Your Honours, Julie Stiner, for the attorney for the Appellies. I'm going to start in the reverse and follow up on your question, Your Honour regarding the amount healthy defense. Even if plaintiff had engaged in prospective speech, which we say he did not, he would have been fired anyway. And that is the basis of the Mat Healthy Defense. If even if there is some evidence of retaliation, the defense allows us to show that he would have been fired anyway. Yes, that would deal with the firing, but it wouldn't deal with the allegedly adverse actions that were taken before he was moved to another school that is of a finding and that. And that is what you would have to address because that is enough. I mean, we just had a Supreme Court opinion about being transferred and how that means. So that, yes, that deals with a second with the fire, but it doesn't deal with the first actions that the principal supposedly took in retaliation. But the Mat Healthy Defense allows you to make the assumption that he did retaliate, which we disagree with. So if you look at every action that principal does dorsely took and say that was retaliation, you then allow the Mat Healthy Defense, which is he would have been terminated anyway. In particular, much of the charges and specifications that were lodged against him occurred even before the principal, excuse me, the plaintiff is asserting that he made this report to SCI or spoke to his union rep. So there's a causation issue in addition. You are saying that he did enough negative things, so even as to the finding and as to the transfer to the other school there would be amount healthy defense. I'm saying, if this court were to, I don't agree that what happened was retaliatory, but what I'm saying is if this court were to find that his actions were the mental health defense comes in. But now getting back to the- So can I ask, I just want to be very specific about the different events. Do you take the position that the second arbitration would have happened? Give not former retaliatory. Absolutely. Okay. Do you think that there's no question of fact on that? That there's no. There's nothing left to dispute on that. I'm not regarding the second set of charges. Yes, absolutely. I mean, you even have the second half or a few of the second set of charges. We're not even from Dorsley himself. It was from the second school that he was transferred to and you had his students testify and complain about him. You had other individuals who observed his actions in that school. So there would be no question of fact that this second set or the second arbitration would not have occurred and he would not have been fired. That's what led to his firing was the second set and it just cumulatively with that arbitrator he was able to say, luckily the second set of charges that were independent and just offensively. So the second set of charges were, excuse me, that he fell asleep, that he was well-bored, they were quite a few. Yes. And when-so at that point the arbitrate of found that that was enough for termination, he then plaintiff brought in Article 70, 75 to challenge that and Supreme Court then said, oh my goodness, we're talking about a very heinous, very heinous conduct, unbecoming a teacher that has absolutely no place in our education system that was destructive to the students' health and well-being. So there is no question of fact on the man-healthy defense that he would have been terminated anyway. So why I go back to whether there was retaliation earlier and whether what he had done earlier would be enough or whether that earlier was covered by Garcetti or by a failure to plead that was a first amendment concerned. So I'll go to the Garcetti factor you're on and I appreciate that you had pointed out that this is a very specific discrete situation. You have clearly and I'm not going to deny that there was tension between these two individuals. But his plaintiffs comment to his union rep, his statement to his union rep, that was clearly and this is the key. Part and parcel of his activities that owed a part and parcel of his job duties as a social studies teacher, proctor and grader. It was owed his existence to his employment as a social... So I just want to, if you can help tease out how this relates to one tribe. My takeaway from one tribe relates to this case is that an era of plaintiff was found to be an employee who was reporting agreements and demanding that protective measures be taken against a supervisor. So what was the equivalent workplace grievance in your position that severed further by reporting the test related? So to the extent... I mean, or is just why I'm not the best case for you? I mean, I mean, I mean, I don't think it was... I mean, we cited wine trap, but I don't think it was a among many cases that we felt that were quite desposited, but in wine trap the teachers reports were about administrative failing to punish a student, which was part and parcel that teach responsibilities. So here what you have is to the extent that he believed that he observed or was being asked to change a test result, that would be... It's common sense that as a teacher, you have an obligation. Whether it's... Whether it's the grievance that... No, he's... And it's... Don't you... Would you disagree that that was what wine trap turned on? Or was just categorizing the... The supervisor needs to take protective measures. Was a workplace grievance. Is this how is protecting... Or how is reporting the test irregularities and grievance? Or again, you can walk away from wine trap. We have other... Yeah, I would work... I would walk away from white trap in the sense that the grievance he was... Again, there's a... Not attention... But there is a little bit of an overlap between the two parts of Garcetti. The grievance here was really a personal grievance. He went... He never even... He admits... I don't even think that there was anything going on or you know, maybe initially he's on... But he never went and reported this... What he thought was an alleged... You know... Request to change a test grade. But you're saying that when... And the administrator tells a teacher that they should change a grade... But that is a personal grievance. I mean, when I was deemed occasionally there would be people who would come and tell me... So and so has complained about grades and said that this teacher grades too hard or too... And you know, that's part of the parcel of that business. Well, exactly. I mean, so I think I was maybe confusing the two regarding public concern. I mean, as I said, there is some overlap. But yes, he never once thought that this was a huge matter of public concern. I need to take it to the press. I need to say something beyond what he said, which was the only reason I'm being undermined as his... ...the terms were was because I maybe made a gesture and said, Oh, I'm not going to change the test grade. It was all personal. And in this respect to the extent he even thought that this was a... ...some issue greater than himself. It's still part of his employment. The only reason he went to his union rep, which is the first... ...peave this analysis, was because he thought that the principal was undermining him for some time. And he didn't know why. And he even said, I really couldn't figure out why. And then only when he was pressed by that union rep as to what was the reason that he then say, Oh, wait a minute. Maybe it was that incident with the student. So again, it's all relating back to a personal grievance. And in any event, it was something that he has a teacher, any teacher, in common sense, ...language would have then done... ...what have reported it anyway. So it was not... ...ending that under... ...that people doing her session, summer work, ...have the same responsibilities as a full-time tenure teacher. Absolutely. And he was on the... I mean, he was... ...maybe he was not yet... ...it wasn't the false session where he was in a classroom. But he had already been hired. And he was already working in the school as a proctor, greater. You can conceive that something like that might have also public things. Suppose that one of the reasons that there was this was a suggestion that the student was either conservative or liberal or something, ...and that the fact reason the suggestion that the grades should be changed ...that might be something that would warrant a broader general reasons. But there's no allegation of that here. Well, yes. So number one, yes, it could touch on. It's...and that's the key. It could touch on a matter of public concern. But on the facts of this case, this was definitely not a matter of public concern. He never even thought it was one. It was all relates back to his personal grievance with principal Dorceli. He'd never even...he even admits I didn't think it was anything when it happened. Thank you, Ron, as we asked you a firm. First, I'm actually surprised we've been talking public concern today, because if you read the summary judgment decision on page 18, special appendix 34, the sentence do not dispute that severance complained touch on a matter of public concern. And of course, the public generally has an interest in whether New York City public school principles are altering statewide standardized test scores. So that's what...it was not even addressed by the district judge decided as the matter of law and the defendant didn't even concede it until today. I mean, the district court also went...yeah, public could be... Yeah. But in addressing the Judge Perez's concern, on paragraph 23, we did a ledge that the UFT district rep perceived this as a testing and the testing impropriety incident. And so again, I think the Judge...this rigged Judge saw this as... this is about changing regions grades. And Judge Calvary, if you're a point, you know, when you're a dean, it's a little different than if you say this is too hard a greater. This is a guy...nothing to do with this test at all. He was just brought in and he saw... whether he tried to do his past, this girl who didn't pass the regions to please the mother. And so he cut a raise the little bit of eyebrow about this, and that's why...that's why the principal backed off because he was caught. So it doesn't really get a broader public purpose here. We're not talking about...this is just one incident, it's too hard a grade. We're talking about...hey, this is changing the state region, and as, you know, any proctor, does it have to be a teacher to be a proctor? You know, he has nothing to do with grading this exam. He was just brought in, maybe to provide some help to this girl in the future. But he's just raising...I just got hired by this guy, at least changing grades, and I'm raising it. And because he brought that up, this record is ripe, which evidence I've never seen. He's smoking that evidence of retaliation, and they can call it attention. It's anonymous. James Brown found anonymous. A hearing officer sat through days and days of this and said, there's a retaliatory anonymous. There's a cooling off period. So, you know, it's just...to take this guy out of his chance is being court over this. And I've got it in seven years later. This is hard for a district court to do, but I think the guy deserves his day in court, like Mr. Portel has did. And if you lose, it's a sealooz, is let a jury decide that. So... So, you're calling... took the position that... if not for...that... the second armorration would have happened, even if it had not been through retaliation, apart of doors to sleep. Would you respond? Yeah, absolutely. That was... It was so unusual about this case that I found offensive was that five of the seven charges in the second case were from the old school. So, admitted after they weren't successful and terminating the first time, a month later, and it's actually the district judge wrote it this way, a month later they charged them when they do charges, because they didn't win the first time. So, could you imagine a system where we're going to charge each specification separately, if we lose the first time, and again, we're not going to get a good result. We're going to another arbitrator on the panel. It will bring a second set of charges. And if we don't do that, we're going to another arbitrator going to go to third set of charges. The way the New York City panel works, and they know this point well, is that we have this rotating panel of arbitrators. So, James Brown is to be a plaintiff's lawyer, who, you know, started case much differently, than Richard Williams, who, you know, has a different reputation. So, all they did is they did study, we didn't win the first time, so we'll come up with a whole new set of charges. We'll add a couple from the New School. There was no problem in the New School. They just were looking for new stuff, because they lost the first time, and they were upset they lost the first time. And again, to characterize Mr. Severin as this horrible man, when you have a principal who's engaged in test sheet, who has had an inappropriate relationship with an AP, and he sits there, Scott Frey, who I might play in my client, loses his job, and his career is suffering to remain the devastating economic impact. To me, as a fence of, I think you should have a chance to talk to a jury. Thank you. Thank you, but we will take the matter under advisement.

The next case is North American Sugar Industries versus various defendants, including Goldwyn Science and Technology. Craig Bono is here for the appellate North American Sugar. John Marata is here for the Goldwyns. Patrick Boyle is here for all the Breviate DSV and Air and Christopher Carver is here for the Breviate again, BBC, BBC us. Mr. Bono, you may begin your argument. Thank you, Ron. May please support my name, Craig Bono, and I represent North American Sugar, appellate here. We're here today because the district court incorrectly held on a 12B2 motion to dismiss on personal jurisdiction that none of the defendants in this case were subject to jurisdiction and floor to underfloor to the long-arps statute. The decision turned on the adoption of a magistrate decision which turned on the court, a holding the underlying trafficking conduct that was alleged in this case occurred solely in Cuba. So, council, you don't have a ton of time and if you don't mind, I'm going to jump right in. So, soon for the moment and just a soonness that I agree with you that there was at least a misunderstanding about the nature of the violation here. And that I agree that there was a violation that was committed under the third section of the definition of traffic because putting the boat in Miami was an essential and foundational part of doing this or at least routing it through the mechanism of getting the boat to Cuba required that it be done in the United States and coming to Miami was part of that plan. And so, let's say I agree with you on the Delvae part of your argument. There's still another link that you have to show. And that is that one of the folks at the table to your right did something in Florida to make that happen. And I'm having trouble with that part of it. So can you focus on that part of it for me? Absolutely can, thank you, Your Honor. So there are two points. So the first point is, and you reference that at least one of them needs to have done something in Florida. We'll call it that's fair. So tell me, give me your strongest one that did something in Florida. And I guess you can answer the question, but just just to set the floor, this is a conspiracy you've alleged a conspiracy. So this question certainly goes to the conspiracy jurisdiction underlying our conspiracy angle. We also alleged that each one of them committed a tort in Florida and thereby they're independently, but I understand your question. Give me your strongest one here. So I think we need to take a step back and understand, I'm going to get to it, I promise. I'll answer your question first and then I'll take a step. Thank you. So the question, the answer is BBC Singapore, I think is the strongest one with Miami office. Now, DSV has the Miami office. So I think that would be my second strong. Tell me why BBC, what did BBC Singapore do in Florida? BBC Singapore hired port agents in Florida to be on the ground on the dirt of the in Florida. I've looked as much of the record as I possibly can and I just did it. I've looked at as much of an adjusted as much of it as I can and it seems to me that it was not BBC Singapore that hired the port folks in Miami. Show me where you, your best evidence that they are the ones that actually are the hiring entity for them. Not the one that communicated with the Miami one, we'll get to that, I'm sure, but that they are the ones that hired the Miami port. So I don't either, I can get the record site for you. I do, I'm a bundle, but this is why I wanted to take just a quick step back. This is a complicated transaction. This is a global transaction to be the company with a Hong Kong affiliate to build a wind farm in Cuba. And then to create the turbines on that wind farm in China, shift them across the globe, going through all of the logistics of just bringing this ship. I don't counsel, I agree and I can tell you that everyone here has tried to unpack all of this, but corporate formalities matter. And you sued some people, you sued, you didn't sue others, I assume there's reasons for why things are done the way they are. I don't question those, but I do take the ball as it exists. I hit the ball as it is hit to me. So the ball as it's hit to me is I understand it BBC Singapore is not the hiring entity. Now there may be another BBC entity that did the hiring of the Miami port authority, but not the folks as I understand it were sitting at that table. What else did BBC Singapore do in Miami or in Florida? So I believe BBC Singapore and I'm going to get you the record site. BBC carriers, this is the Chinese company that BBC Singapore was the agent for. BBC Singapore was the contracting agent with the agents in Florida. Now, were they doing that in their role as agent for BBC carriers? Maybe, but they were all participants in their slice. This is a big transaction like I mentioned and no one company can do any of this by themselves. It's too complicated. There's no business, it does all of this. So they all have to play a role and Helms Burton is designed to encompass all of those entities whenever you just do a little slice. That is why Romanette 3 in particular is so broad. So even your little slice, if you participate, then you fall within the context of the Helms Burton violation. Let's assume I look at the record and I don't see that BBC Singapore was the hiring entity. Okay, what else? So then each one of them, okay, so let's start with, let's go to DSV because they have an office in May. So that's the one that that Churchill was asking about. That's the one that has the office in May. DSV U.S. And there you read the written ball. And you alleged that they're involved in the conspiracy, correct? I'm sorry, say the thing. You alleged in the complaint that they're involved in the conspiracy. Correct. We alleged that all of the defendants are correct. I understand, but under Florida law, if you have one co-conspirator, you have jurisdiction for all the co-conspirators. And so that entity, the reason they're involved is because this ship is coming to Florida. The only reason, the initial DSV entity that was involved in this was a Denmark entity. Well, it's coming to Florida. It's coming to the United States because they need, they need to have the shipment for purposes of the GE company, LM to be involved with the winter binds. They need to have a port in the United States, correct? Correct. So, the allegation that you make. That's right. In order to satisfy various sanctions related to Cuba, they chose Miami. They did it up. They purposely chose Miami. Obviously it's the most convenient port to Cuba. It could have, could they have done this through New York or LA? Sure. Here's my concern with the office at the DSV office in May. There is evidence on their side. And I don't think you would dispute this. That says that office was not involved in any aspect of this. That evidence exists. You have presented some evidence that the entity was on, that someone was CCed on a bunch of emails about 20 something, 2221. And that the Miami entity was listed at least in some drafts of the ISF document and some of the documents that were filed with the port authorities and with the licensing entities. Do I, if I described that correctly? Correct. Okay. Does this record make a finding based on that conflict and evidence that sided with the folks at the table to your right and not with you? The district did, but don't you need to have an evidentiary hearing since there's conflicting testimony? It was no evidence that you're hearing. And instead, the district court just, rather than going towards the plane of side on an inference, the district court with the opposite direction, which is an appropriate at this stage. More to the point, the lady in the Miami office that received these emails received, the first email is she received it's honor. Then she received subsequent emails, 21, 22 subsequent emails that she was copied on. She didn't respond to any of that is all true. We don't dispute that. That's what the record was suggest. Did any of the emails have anything to do with the, with the, this case? All of the emails have to do with this case. All of the emails were related to this stop in the port of Miami because that's what DSV US was doing. They were organizing the regulatory side to ensure the appropriate forms were provided at the port of Miami so that they could solve the sanctions problem they were trying to solve. DSV, without DSV involvement, the ship doesn't come to Miami. So it's not, all of the defendants. Effectively want to say, we didn't drive the ship into Miami and so therefore we have nothing, what are we talking about? Why are you even talking about it with us in Florida? But it's, it's, it's entirely too deep into the weeds to say if you don't drive the ship, then you didn't do anything. I know, but there has to be some act in Miami and for someone just to receive emails to be CCed on them, where there is direct evidence to suggest that she had no involvement and in some instances didn't even look at the emails. And the district court credited that testimony. I just, I'm hoping, already, I'm seeing how that could possibly. That's not a conflict of evidence. That's just what the evidence is. Well, now the, the better evidence for you. I think is the reference to the address on some of the licensing stuff. How do we deal with that? Well, similarly, the only evidence we have is the documentary evidence that has the address on the license. Now, just as though in their, in the affidavit that they put in, it wasn't live testimony, but in the affidavit that they put in, they said, look, she didn't do anything, which, they can say it, but the documents which suggests that she must have done something, why did she received 22 emails? Similarly, they say, look, what we provided to the US government didn't actually have our real, our, our, my, my address on it. But we don't have those documents. The documents we have, they produced these, these documents were all within their control. During your sectional discovery, the only documents we got had that my image has on them. We don't have any other documents for them to say, well, but that's not what we gave to the US government. We just don't have a copy of the one we actually gave. Can't be credited at this stage. Thank you. All right. Mr. Marata. Thank you, Roner, and may it please the court, Sean Marata, and behalf of the Golden Appalize. I'm going to address sort of issues that are common to all the defendants, as well as any goldwind questions you have, and then my colleagues from DSV and BBC will answer any questions you might have about their particular facts or their particular situation. I think the questions get strongly at what the problem is in this case for Nasi, which is that the people who are alleged to the masterminds of this entire scheme, LM, BBC charting, charting, and DSV Denmark are not defendants in this case. And in fact, LM is not even alleged to be a co-conspirator in this case. So if they are relying on conspiracy jurisdiction, which was to establish personal jurisdiction in this case, the sort of hub of this entire conspiracy LM is not only not a defendant. They're not even alleged to be a co-conspirator. Let's get to the heart of it, though, which is what acts were committed in Florida or caused to be committed in Florida. There's no doubt the boat got here in my view. That is pretty close to causing directing what ended up happening in Cuba. The missing link for me or the harder part is connecting your clients to that activity. And I think it's particularly hard for Goldwind because conspiracy jurisdiction under this court's decision in United Technologies requires proof of meetings of the mind with at least one other co-conspirator. And the evidence is replete that the only person that Goldwind had contact with was LM. No, that's not the law in Florida. Well, it's also, I don't know that that's even true as a matter of the record. I mean, didn't you all have contact with BBC Singapore? No, your honor. We had no contractual documents between your client and BBC chartering with Singapore as the agent for chartering. That's not my understanding, your honor. It's that LM engages DSV, DSV engages BBC chartering. Now what Goldwind does do is for, you know, certain customs documentation, they said, you've got to send certain information out. We need to know what to put in the boxes. But that's not contracting with them. It's like if federal expressed as to, hey, we need your information for this shipment. And then they decide, hey, we're going to ship it through our Nashville hub. You're not agreeing with them to do anything. It's just the person you've hired to go ahead and transport your goods requires certain information from them. There isn't a meaning of the minds. And we're respect, Judge Ligoa, that is a direct quote from this court's decision in United Technologies. There has to be a meaning of the mind with at least one other co-conspirator. And LM is not alleged to be a co-conspirator. And if you look at the record document, 2818-24, those are DSV emails that say, LM is our customer. And in fact, at the beginning of that chain, LM says, I don't even know who the DSV's ultimate customer is. They didn't know about cold win at first. With the blade supply agreement, a 2818-8. LM is going to be the one who obtains the license and qualification. Document 241-1, DSVUS deposition where they say there's no relationship between cold win and DSV that he's aware of. So at 2818-5, that's the cold win deposition where it says the Cuban customer required gold win to use LM as a supplier. And they had really no reason to understand why this stopover was taking place except there was something involving a US customer. And there's a 2818-7 where gold win deposition says, I only know what LM told us. And LM is a US company and the products are US products. That's why they have to stop by a port in US. So from gold wins perspective, all they contact is with LM. And they're copied on certain, so maybe what you're suggesting, I do, there is in the record judge-elect that they are on certain email updates about where the ship is. But they are not involved in this so-called BIS loophole scheme. Have nothing to do with it. They're not indemnified DSV for potential damages resulting from sanctions violations. So they signed on to an indemnification agreement that said if there are customers' problems because of course, they're the ones who provide the information about what these goods are. Then yes, we are responsible for that. They are not responsible. They didn't plan the BIS loophole scheme that Nasie talks about. They didn't do any of that. Are you profiting from having the wind turbines delivered to Cuba? I think we are profiting. And isn't that part of Section 3? That is part of Section 3, but you know- Which is basically, it's a little piece of, you know, a puzzle. Anybody who touches the puzzle is now on the hook. Section 3 requires us to profit from an underlying trafficking that takes place. Now I take it the allegation is the underlying trafficking is the stopover in Miami. But the under section 2 is trafficking violation requires that the stopover benefit from the port in Cuba. But as we point out in the brief, it's actually the opposite way around. If anything, it's not that the stopover in Miami benefits from Cuba. It's that the unloading in Cuba benefits from the port stopover. But here we're talking, there's a rule 12B motion correct, right? So it's the underlying facts of the complaint and the complaint says that this is a conspiracy and a stopover in the United States. It didn't have to be in Miami as your friend on the other side pointed out. It could have been in Texas. It could have been anywhere. But you still would be on the hook under Helm's burden act. The issue here is you needed to have a port in the United States in order to have LM involved in order to get around the sanctions for purposes of GE being able to provide the wind turbines. That's what the allegations are in the complaint, whether they're true or not. I don't know. So that is that not the allegation in the complaint? That is the allegation in the complaint, just a little bit. I take Judge Lux sort of initial premises of some of the questions to say, you know, I think that's sufficiently essential for Florida long arm. I do want to push back on that your honor because for both the essentiality requirement under Watts, which is a case discussed in the brief, and the connectivity requirement that the Florida Supreme Court require. I'm not talking about though, don't misunderstand me as you're pushing back on me. Don't misunderstand that I'm talking about the test under personal jurisdiction for Florida law. I'm talking about the violation part. And for violation, we're looking solely at whether the conduct here is alleged is a potential violation of the Helm's burden act. And there, causing participating in, profiting from, as Judge Lagos said, that all, if that's done for the trafficking, which happened in Cuba, if that's done in Florida, which stopping the boat seems to have been, at least somebody did that, that seems to be a violation part of it. My, my, my, my, where I'm hung up on is, did you guys do that? Somebody did it, but did you, or one of your co-dependent, do that? Right. And I think I've been explaining, I think, why none of us did, and I think particularly goldwind did. Right. But I do want to, I do want to, at least for at least the Florida Long Arms Statue, push back on the notion that it's essential, such that there can be torcious act, long arm jurisdiction, because if there's a statutory violation, though, that meets the violation part, and the only question is whether the defendants did that in Florida. That's the question. There is, it's a question of whether, I think any defendant did it in Florida. I, I agree. And that's all, that's the only point that I was asking you, I don't think anyone misunderstood until you push back. Right. I think we all were on the same page. Right. Thank you, Your Honor. Boyle? Thank you, Your Honor. Patrick Boyle for DSV. Let me start by answering some of those questions. Carol Shied is the Miami employee who received about 20 emails. We know that because we produced thousands of documents, and so we know the 20 emails she received. She didn't respond to any, because we have none of her responses, and all the same people were in the emails, and we see no responses in all the others. So not only do we know, for a fact, Carol Shied didn't respond, we know who from DSV did do the things that the plaintiff is alleging. Why is there not a reasonable inference that could be drawn from the evidence? Based on the emails, plus, and I agree with you, the email inference would be weak and maybe not enough by itself. What's the fact that the Miami address was used on the license applications, at least some drafts of it. I know there's some evidence to suggest that didn't make the final drafts. I know there's evidence to suggest that New Jersey is the one that prepared the documents and file them. But why is there not at least an inference of fact or a dispute of fact on whether the Miami office was involved in this? Yes, Your Honor. The record does contain the information, although subtly. You see when Keith Gula sends the file, does the filing for the Jade. And you see when Linda Esposito does the filing for the moonstone, all they can do when they email back and forth to other people who, to say, I've done the filing, because that's all they were asked to do is to do this filing that said it was going to come to port, and it was going to be freight remaining on board. In other words, the customers people were told exactly what happened. All they can do is send screen grabs, and they say this is what was filed in discard, this, the cart. And DES, CAR, TES. It's an electronic filing system. The customers do not take paper anymore. They haven't since 2015, the US customs. So when we talk about first drafts of filing, we just want to make sure that everyone understands. It isn't there. There isn't a final version that's signed and embossed. It is only done a lot of time. I understand all of that. Okay, my question simply is, the fact that there's this address, and whatever mechanism it gets filed, and I understand what you're saying, of Miami, does that not lead to an inference that the Miami office was in fact involved in clearing the ship to come to the Miami port? That document, your honor, the record contains and the evidence that that document was actually first produced by the China DSV entity, and it was sort of like to show what, to show something about what would be communicated. That's the only point of it. I'm not saying Council, that there is an explanation for it, and you may in the end be right. But I guess the question that I'm leading up to is, and I'll ask it, does that not mean there needs to be an evidentiary hearing under Florida law or can a district record based on affidavit testimony that you provided that this was Miami, nothing to do with this versus inference that they provide in documentary evidence, isn't evidentiary hearing required under Florida law? You're on our, I believe this was the most exhaustive personal jurisdiction mechanism and review I've ever seen. You know, deposition six hour deposition of multiple parties, thousands of emails produced, Council, can you answer my question? I don't think an evidentiary hearing was necessary for the court to conclude the things the court concluded. You have conflicting evidence. Does the law inforred or not require an evidentiary hearing? I don't see the evidence. You just, it's just the answer to the question. If there is conflicting justice, the answer to the question. Yes, absolutely. Absolutely. But I just don't see the evidence as conflicting. I see the evidence as all one side, and not only do we see the carol shy did not participate in it. We know exactly who did participate in it. And the fact that the Miami-Adocumen exists with the DSVs Miami's address on it, that seems not good enough for purposeful of ailment or to meet the long-armed statute. Adocumen with the Miami address is not good enough. I mean, that would be DSV's position. Your honor, I would have liked to say, now I see I'm at 13 seconds, but I would have liked to say that the most impurement you're in the negative time right now. OK, I'm sorry, you're right. If our presiding judge. The one thing I would like to say is I think the most important documents in the case you're on or are at 200-10 and 200-11. They are the actual Miami customs clearance forms, because you see all of the information on those forms, which show that everything DSV said was credited and seen by customs, and the cargo was released. It says freight remaining on board. It says it's the vessel where the vessel is heading. It doesn't. There's no information that DSV provided that was in any way wrong or misleading. And that's a whiff I get in the complaint. It makes it seem as if this scheme was to trick customs. It seems cleared the vessels. DSV was initially skeptical of the entire idea as of course lots of the emails in the case suggest, because why would you want to have a vessel come to the United States and then go to Cuba because that might be problematic. But there was no, there was if anything, it just shows the absence of a conspiracy. The emails in the case are people saying, what? Why would we do this? It's not a conspiracy. It's literally a compliance official trying to figure out what makes sense. That is in how conspiracy sound. Conspiracy sound like the first case we just heard argue where people have a plan and they text one another about things. This is the documents in this case show people struggling with one another. Thank you. Thank you, council. Mr. Garver. Mr. Garver on behalf of BBC Singapore and BBC USA with respect to who hired the deport agents. If you look at document 240 paragraphs 44 45 and you can you say that again? I'm sorry. Document 200 at paragraphs 44 and 45. That's a declaration and then document 200 dash six page two. The hiring of the port agents was done by BBC carriers. That was my understanding of the record as well, council. You're opposing council will come up and tell me if there's any conflicting evidence. I think from my perspective, the best evidence for the other side against your client is this. I'm reading from I'm sure there are other copies of it, but I'm reading from Document entry 200 dash eight. This is an email chain starting with your client starting with your client. Saying, hey, listen, happy new year. The Jade is now done. We really like to have lessons learned. I'll call it the lessons learned email for the moonstone because we have some more things going on. And they're it's routed and then eventually the port folks and this is central. Sorry, directly to the port folks. And then the port folks in Miami list, hey, here's what happened. Here's the kinds of things we really need to expedite this stuff. There's a really comprehensive list, including a note to the master, you need to provide these things. And then this is then routed to some other folks in the BBC chain saying, this is for upcoming call in Miami. And it's listed as the subject is then changed at some point to BBC moonstone, the Jade. Miami port call lessons learned. How is that not an email directed at Miami, at least with regard to how the operation of the moonstone. Is going to go. First, when you say you're client, two clients and this is important. Aaron, if I'm talking about in I apologize, I'm not going to be seeing a port. And this email is not in any way evidence of a conspiracy. Well, it may not be, but that's not what I'm talking about right now. All that is is it's not. It's not at least doing something in Miami. Again, this is assuming that I am right that causing participating in getting the ship to Miami is a violation of the act. Is a violation of torches act. And so then the only question is whether it's a defendant committed that torches act. And is that email not directed at Florida, directed at Miami to agents in Miami, telling them, this is how we're going to do the next ship in Miami, not an act, a torches act directed at Miami or directed at Florida. That is not a torches act in any way. Unless the courts, unless your honor's view, is that anything that touches a potential helms virtualization constitutes a torches. Not touching it, but it seems to me that bringing here, given that it's described as foundational and essential that this thing be routed in a particular way. And that the ship actually does come to Florida as a necessary predicate for it going to Cuba. That seems to be causing participating in or profiting from the trafficking. I believe that to be the case. My only question is, did you all, as opposed to other corporate entities, direct or participate in that, through an act in Florida? And is that email not with communicating with Florida folks about how the next shipment is going to go, put you in the dock regarding that? I don't think so, your honor because this email is what happened, it's like one bus driver asking another bus driver who had the route before what happened. But since we're going down this route and I have very little time in the Eradero's case, the court found that a helms-werton violation that occurred in Florida in the sense that the plaintiff was a Floridian was not enough for personal jurisdiction. But I mean, I guess my issue I'm having is that at the end of the day, that email talks about the lessons learned, which was that there was an issue with the moonstone where information about what actually transpired because it had come from Cuba directly to the port. And so they just pretended that that was not going to happen. And they hit it under the rug, I think that's my understanding. No, that is a mixing of two cargoes. There were two cargoes on the moonstone. The Jade had one cargo. There were two cargoes on the moonstone. The second cargo was from McDermott. It was going to port Arthur. McDermott didn't want its cargo going anywhere near Cuba. Whether there was a contractual violation with McDermott by BBB. And look, I understand here, we're not here on the merits. We're here on jurisdiction and whether or not there is a jurisdictional basis for the defendants to be sued under the Helmsburg Act. And you're on our, I think the answer to that question is no, and I'm running it run seriously run out of time. But the two things, one, they did not object in their objections to Judge Gales to the lack of an evidentiary hearing. They can't argue that here. There was substantial evidentiary consideration by the magistrate judge. And the magistrate judge basically got it right. And I would like to direct the courts attention to one other case. I'm not sure that they got it right when they didn't think that there was an initial violation. But okay. Well, I think that in terms of personal jurisdiction, I think the magistrate judge got it right. And I'd like to direct the court to the Associated Transport line, the productos, Fint Centerios, Prof. Kase, which is 197 F-31070. It's cited in Old Field. It's actually a case where Judge Wilson was on the panel. And in that case, there was a circle of violation that accord in Florida waters. The plaintiff sued claiming personal jurisdiction. The court's decision was no personal jurisdiction because your claim is not the circle of violation. Your claim is the misrepresentation of the chemical involved and the misrepresentation occurred in Columbia. And one final point, if we're going to go down the complete Helms Burton route, there was no way for any one of these defendants to know that Helms Burton was remotely involved. Because the complaint attaches. Really? No, no, no, no, no potential. Is that why Helm needed under the under the allegations and the complaint? Helm said, what we don't want to be in violation GE doesn't want to be in violation of the sanctions against having any product sold in Cuba. Your honor, we're talking about two different things. There was no violation of the customs regulations. We're talking about all the defendants knew that Helm needed to have a port in United States in order to be able to comply. Correct? Your honor. That's correct. And the port. What was the potential violation? What were they afraid of? No, but this case is a Helm's Burton case. And there is no way for any defendant to have known that Helms Burton was remotely involved here. Because the foreign claims settlement commission does not save Puerto Corroupano anywhere. There's no way for any defendant to have known that the port to which these turbine blades were going would have triggered a Helm's Burton claim by any entity. A new that the port was in Cuba, correct? Yes, your honor. And the legality of these things going to Cuba, Helms Burton aside is shown with the customs clearance, which are at 50-6 and 50-5. And customs explicitly cleared these blades to go to Cuba in both shipments knowing exactly where they were going. So there was no regulatory violation on one hand. And there could have been no knowledge and knowledge as part of Helm Burton. It's, you talked about one, two, and three. But knowing and intentionally, there is no way for a defendant to know of a Helm Burton violation here. Because no defendant could have known that Puerto Corroupano was claimed by NASA. Thank you, Honourstone. Thank you, Mr. Carver and Mr. Well, no, you've reserved some time for a battle. And I want to tell us how were the defendants to know that Helm's Burton claim was implicated here? Well, I can briefly do that, but that really, to the extent that whether or not there was a knowledge basis for these defendants is really a question of Puerto R.B.6. Those issues are open on the 12-B.6 motion and not really present here today. So, unless... Well, you have to demonstrate that there's an afferavidence to make purposely avail themselves being subject to suit in Florida, right? Absolutely, Honourstone. They came to Florida. Yeah, they need to have fair warning that there would be hail in the court here. Absolutely, Honourstone. And they came to Florida in order to take advantage of the laws of the United States. For purposes of the sanctions that they were concerned about, the Helm's Burton was on the book, and has been since 1996. It's a law that exists there. On, I don't know that they have to have had an email in somewhere that says, here are the 17 laws that we have to worry about when we touch the United States in order to be on notice of the laws, all of them when you come into the United States, you have to abide by all of our laws. If they're knowledge argument, those little more sophisticated than that, or it is what I just heard from your opposing counsel is, what they're saying is, there's no way we knew this particular port was a prohibited space in Cuba. Not that we didn't know that Helm's Burton exists. I'm sure that everybody knew what he existed, especially of the United States parts, but what they're saying is the name that was part of the, I think the list in the 60s was different than the name of this particular port now, and there's no way that we knew that this was that. Right? That is certainly what he said when he came up here. Again, that wasn't a decision. The district didn't even touch this issue. It wasn't decided on the motion below. There was no objection to it. The R&R. There was no appeal based upon it now. So, I don't really think this issue was really present, but to the point of, I think where Judge LaGolo was going, every port, every piece of the dirt in Cuba was seen. I didn't know there was an exception from somebody. Maybe Guantanamo, I guess. Yeah. So, the cash sugar government took it off. So, if you're going to Cuba, you are on someone's property that should have that belonged to somebody that wasn't the Cuban government until the cash sugar. It was all property in Cuba except for Guantanamo belongs to the Cuban government, and even then they lease a T9 State's government. Correct. That's right. So, I think that's ultimately where we go, but honestly, to the extent that we need to discuss that issue, I think we should brief it because it hasn't currently been briefed and it wasn't really on appeal. Now, is anyone in Florida alleged to be harmed here? So, we've not made any allegations that there was a an individual. The plaintiffs here aren't Florida residents, and so no, there is none of our allegations relate to an injury felt in Florida because there was no the plaintiffs weren't here in Florida. All of our allegations relate to a tort committed in Florida. And I want to be a lie. A tort is a federal, sorry, a violation of the tort in the act that we qualify as a tort just act into the fort. So, I want to circle back to your original question, which is what did everybody do? What does somebody do in Florida? Right. So, all of these defendants, again, want to run away from the fact that I'm opportunity to look at the record. I have, and I want to get to that, I was going to circle back to that last. My understanding is my understanding correct? So, our best record sites for our position that BBC, or BBC Singapore, was the one that was really acting through those agents are 215. Let's not quite what you said when you were up originally. So, let me, I had a transcript, I believe it would say that BBC Singapore hired the poor agents. So, BBC Singapore acted for, was acting for, and admitted that they were the agents for BBC carriers. With regard to negotiating the original deal, I don't know that they said for all purposes for all time. And then, subsequently, they engaged with and sent the email that used both to earlier, and were the ones communicating with those portage. We don't have any evidence that BBC carriers were directly, is there any other significant communications? This, that's the one that I've focused on, but I don't, I don't know that I saw any other significant communications between BBC Singapore and the port agents on the ground. I think that's certainly the most significant communication that I'm aware of. Absolutely. I just want to quickly talk about Goldwind because we didn't talk about them the first time around. And, you're on our asset question that was basically looked, this ship got to the port of Miami. It did something in the port of Miami, it participated it profited from, it got here. It didn't get here by accident, somebody drove it here. All of the individuals, all the parties in this case, separate from Goldwind, were hired in order to affect that ship getting through the port of Miami and ultimately going to Cuba. Because if you go all the way, if you back up far enough, then you see Goldwind is the initial party that entered into disagreement with the Cuban energy company. It's Goldwind who, who was building this wind part. It's Goldwind that needs these turbines made, needs these turbines to get to Cuba. It's Goldwind that hired all of the BBC. The problem is though, an act needs to be committed in Florida. So it's just not enough that these guys participated in something not directed and not done in Florida that ultimately came the ship came to Florida because there's a lot of other folks that you're not that are not at that table who were much more directly involved and were literally on the ground in Florida. And so you still have to show in my mind something happened in Florida that committed that torches act. In my view, I just don't see how you get around that. So I agree with you. And what I would say is that the ship coming to Florida, what it happened, it was four goldwind that they hired another company to drive the ship there. It doesn't mean that they didn't direct the ship. The ship came to Florida for it. It isn't the allegation you could tell me from wrong, but isn't the allegation that in order to further the conspiracy, the ship had to come into a port in the United States and the port that was chosen was Miami. And that's where the infrared range of the torrent that was committed. That's correct. I believe that is correct. Yeah, I think my time's up if anybody has any more questions. I don't think so. Thank you, Council.

The next case is Olivia Theresa. Dessusa versus the US Attorney General. Mark Andrew Prada is here for a petitioner. Susa. Remy Dorotia. A photo is here for the respondent. Attorney General and Mr. Prada. You may begin your argument. May please the court. So withholding of removal regulations, recognize two forms of persecution, threats to life or freedom. These are independent basis to establish persecution. Now our past persecution claim is trying to demonstrate persecution on a basis of physical harm, but our future persecution case based on the country conditions is about the threat to life of freedom to freedom. And also a threat to life as there is evidence showing instances of a corrective rape against lesbian women. Our rule that we asked the court to adopt is that just as it does with religious persecution cases and other protected grounds, that the inability to live freely and openly as a homosexual in a country where there is pervasive violence, harassment and abuse against such individuals. Can I ask your question? Let's assume that I agree with you that there was an error committed in saying that your client had to hide who she was. And that it's contrary to the, sorry, you put on my glasses. The CGT case and I think there's another case of ours that make conflict with that as well. Casma da. Yes. Isn't it harmless error? Wasn't there an independent analysis done with respect to the Department of State reports? I would disagree for two reasons. Okay. First, the board, as it stated, the immigration judge noted that this inability to live freely undermine the case. Understand, let's assume that that's error. Okay. Yes. Did the, was there not an independent basis that was made by the immigration judge with respect to looking at the Department of State reports? So there's a, there's a doctrinal error that still would lead to reversal, but also factually there's a problem with what the immigration judge did there. Because of the four country reports that were submitted, three of them were later in time than the Department of State report, which contradicted or provided evidence that filled the gap that the State report had left. The problem with the State report as well is a few sentences below the line that the judge relied upon stated that there was widespread violence against these individuals in India. And the, and the thrust of the statement was just because for a second time the Supreme Court of India decriminalized on the sexuality, we did not know yet if things would be better. The question for us though, isn't whether we would reach a different conclusion having looked at this record. The question that Judge Lugo is asking is, is there evidence to support this independent determination? And here's how I say the record. Let me, and I'll just go through it. So a docket entry or a, r, the administrative record page 152, the country report stated that India was investigating and prosecuting individual, individual cases of violence and discrimination, including those within the LGBT community. Later on, it says that NGOs were offering education and sensitivity training to police in several states that's at page 199. It says that the Supreme Court decriminalized same-sex relations also at 199. There's the part about it being too early to determine the verdict of how this will translate into social acceptance, including safe and equal opportunities and workplaces and educational opportunities. The Human Rights Watch article of page 150, so independent of that stated, court judgments and recent years have laid the groundwork for better protections from discrimination based on sexual orientation and gender identity and the Indian government stance on LGBT rights as evolved considerably. Based on that, is there not substantial evidence from which the BIA could have reached the determination that things were better and thus there would not be the fear of freedom to someone to live openly as you've stated? So the judge, the immigration judge, who is the fact finder and the board cannot- So this is a fundamental problem I have with your brief and your argument here so far. And that is that we have said clearly that where the BIA speaks independently and I'm referring specifically to SEC, 63 F-3 at 1367, quote, we will not limit our review to the IJ's decision when the BIA offered its own opinion and reasoning. That's what happened here. Yes, but thamatar, which is a later case, and relies on older precedent states that when the board explicitly agrees with a fact finding of the judge, you look to both the decisions. Yeah, you look to the fact finding, but not the underlying reasoning, if the BIA gives its own opinion and reasoning, that is what controls here. And so I do not think we do look certainly to the fact finding of there was no fear of freedom, that's the underlying fact with which was explicitly agreed to, but the BIA then explained why and it cited to the very evidence I've just quoted to you. So whether or not persecution occurred in a case is a finding of fact, the board cannot make fact finding. So what the board is doing is making its own fact finding, that is error, it's so- That's so. Board could agree with the underlying fact finding, which you're right. There was no fear of fear of future persecution, but it can give its reasoning for why it reached that determination. And that is what we have said we look to, and that certainly does not violate any regulation or rule that I know. Well, your honor, I would, I would proper that's sec is not the full statement of this court's precedent on whether you can look to the board. And I would say this, there's ultimate fact finding, the ultimate fact of this is this persecution or not, and then there's historic fact finding that leads to that conclusion. So there's evidence that you rely on to support that fact finding, not that you're finding that. In other words, the board isn't going to India in determining whether it's true or not. It's relying on the evidence that you all have submitted, and it's giving its reasons for the finding. And here, I just, I cited to you five separate pieces of the record that seem to support the determination the BIA made here. So I presume that it's looking at page five of the record in the board's decision. Tell me where to look. I have it all here. Where are you looking at? I'm looking at the board on page three of the boards opinion. It's page five of the record. The first three paragraphs are regarding the future fear of persecution. Right. So I see that they talk about the state report about the recent decriminalization by the Supreme Court there, and that it was too early to determine how that would transmit into social acceptance. And then it says, while the record establishes that they may face discrimination and harassment, and so on, it doesn't meet the level of persecution, I don't see the board engaging with those other parts of the state report in order to the immigrant. Our case law is clear that every part of the record does not have to be admitted. And the beginning of the opinion specifically states that it's reviewed the entire record, and based on that, and I believe there's a statement even in the IJs opinion that says, even if it's not discussed, I have considered it, and it's part of my determination here. Well, that's the judge's statement, right, not the board. But then immigration judges do that, just because a fact-finder states a standard doesn't mean that they actually engage with the standard. We think they lie. No, for example, this Court, Ru is versus US Attorney General from a year to a go judge Newsom wrote the opinion and the state of very clear, just stating a standard isn't enough. You actually have to look at what subsequently happened. Right, so the BIA made a finding, adopting, expressly adopting the finding of the IJ that there was no extreme persecution regarding the claimed basis here, and it discussed the evidence. And I've gone over some of that same evidence. How is that not substantial evidence supporting that finding? And how does the record compel a contrary conclusion? Well, since the board agreed with the judge that permits us to look at the judges, but opinion, no, no, that's not what we've said. Where the BIA, that's certainly true if it adopts it wholesale without any independent explanation. But where I'll read it to you again from sec, where the BIA makes, it determines its own reasoning and analysis, we look to that. Yes, and I would respond that you have to segregate between the explicit agreement of what the board is agreeing with and whatever. Yeah, it agreed with the finding, the ultimate bottom line, and then it gave its reasoning for why that's the case. I don't see, because the question was premise on other parts of the state report, I don't see the board discussing that in its opinion. On this section of the opinion. Whatever, I'm not sure that it has to for our review, which is for substantial evidence. So the question for us is simply whether the board's finding is supported by substantial evidence. If you pointed to the case, I'm interested in seeing it where we are limited to only the evidence that's explicitly discussed in the BIA as well. In Cezemza, that was a reason, lack of reason consideration case. This is a lie. But I think there's a principle in there that's sort of a plies or an analogous. In that case, where it's true, the fact finder does not have to list every single piece of evidence, but they have to discuss the most important piece of evidence. They did, the contrary report. The only part of the country report relied upon was the statement that it was too early to know. Isn't that an indication that they've reviewed the entire country report? We make the assumption that they've only looked at the one sentence they quote. Well, there's no discussion about the sentence for sentences down about how violence is white-sponsile. They're clearly, as with every trial, they're clearly as evidence supporting your side. I understand that. Yes. That's not the question for us, though. I understand that. Question for us is simply whether substantial evidence supporting the BIA's ultimate finding. The BIA specifically pointed to the country report. I read from you four different provisions from that country report and evidence which you yourself, your client, submitted from the human rights watch that seems to support the BIA's finding. But, I respectfully, I think that's rewriting the judge's decision at that point. Because the sole thing they relied upon was the statement that it's too early to know whether it's- You show me which case which says that we are limited to only the evidence that is discussed by the BIA. My Ns versus Bulls since 1985, the court has held that an agency decision of the board can only be affirmed on the basis articulated by the board. Right. The basis here, agreed. We cannot make it up. The basis here was there is no evidence or I find based on the evidence or I believe the IJ got it right based on the evidence that there's no fear of future persecution with regard to India. Here's some evidence that we're looking at. Are we limited to only the evidence? Can you show me the case that limits us? Only to the evidence that is discussed in the BIA. I would say that that rule from Bull VINS and Channery about that there cannot be post-hoc rationalizations. One, I would point out the government has never made those points in its brief. If I recall. It's cited exactly the- I'll pull the government's brief. I have right here marked up and the evidence that I have quoted is exactly from the government's brief. Every single one of them. Yes. Well, your honor, I would state that the immigration judge who made a finding that persecution was not widespread when four sentences down from the part he quoted in the state reports said the violence is widespread. Yes, there's other evidence in the record that supports you. The question is, is there substantial evidence supporting the finding and does the record compel a country conclusion? That's the- I would state that the face of the immigration judge's decision where he makes a finding that is in direct contradiction to the state report. The only four sentences down from the section of the state report he relied upon is highly suggestive that he only looked to that one passage in the state report and the other portions of the state report that you mentioned are pages before. Said that the immigration judge, and again, I don't know why we're still talking about this given the conversation we had earlier, but the immigration judge explicitly stated in his order, I have reviewed everything and I've considered everything and making these findings and just because I don't discuss it does not mean I didn't review it. I understand he stated that the- that's a proper statement of the law, but his own fact finding goes directly against the state report he's relying upon. And- and whether we look to the board of the immigration judge, when the board is not allowed to make fact finding and we're dealing with an issue of fact, it would make sense that we don't look to what the board does because it's prohibited from even engaging in fact finding. And that's why it's important in these cases of adoption or agreement with what the IJ said that the court says at that point you look to the immigration judge. I just- I just- I just didn't mean that the private. Thank you, you're on a time for your battle. Let's hear from Ms. Rosh Shah Afuddin. Good morning, your honours. Please, the court. Remi Darur Shah Afuddin representing the United States Attorney General. The court should deny the petition for your VVR's. Because substantial evidence supports the agency's determinations. So you do this work. I- I- I certainly have met- heard many immigration cases in my time, but you do this work day and a day out. Is there anything that I said that was wrong? Is my understanding the law wrong? And if I am tell you, please tell me. Absolutely correct, you honor. Can you- The law is on what we our job is to review here. And the job is not to parse the evidence. It is to find if the court is indeed looking at what petition I said. Is there any compelling evidence in the record that the immigration judge under board did not do their work here. And here they did. They focused on the totality of the record. And as you've stated you're on another job of the court, is not to parse. That is not how the court reviews. If the court makes certain findings that are consistent with the evidence, then the BIA's conclusion is not supported by substantial evidence. No right? I'm sorry, you honor. Let- if the findings by the BIA are inconsistent with the evidence presented to the IJ and the BIA, then the conclusion is not supported by substantial evidence. Yes, you're not. If that is the case. The concern that I have is that she does submit a country report and articles that conclude that she may face discrimination and harassment in India. And the court even concluded that the BIA even concluded that that was a genuine, subjective fear that she has. And it's supported by the country report. So why isn't that a conclusion by the BIA that that its decision is supported by substantial evidence? And there are several reports, the country reports here, your honor, talk about several issues going on in India. And the agency looked at the totality of the circumstances here, your honor. And even looked at the widespread violence going on in India, discussed the negative issues, and arrived at the conclusion that Petitioner did not have an objective basis for fear in India. Based on the totality of the circumstances in the record. Because she has the hide who she is, has a homosexual if she's returned. No, your honor. The agency did not suggest that Petitioner should hide who he is. The agency merely noted Petitioner's own testimony that her ex girlfriend did not openly display her sexuality. The agency was not suggesting at all that Petitioner should hide her sexuality. As we stood at in our brief your honor, it is a misreading of what the agency decided. But it's clear that the country report indicates that homosexuals, face physical attacks, rape and blackmail in India, and that there's widespread societal discrimination and violence in India. If I see you on a widespread discrimination, but it does not rise to the level of persecution. You're on a, this is the withholding of removal case where the standard, the burden of truth, is the clear probability standard. Based on the evidence in the record, Petitioner has not established a clear probability that she will be persecuted in India. The record supports that conclusion. Looking basically from the beginning from past the issue of first persecution, that was raised here, on that is court jurisprudence, the experience is that Petitioner had any India, did not rise to the level of past persecution. And moving forward and looking at the possibility of future persecution, the record does not compel the conclusion. And that is the standard, your honor. It is the compelling evidence standard. And based on the record in this case, Petitioner has not established that there is anything in a record that compels the conclusion that she will be persecuted in India. Yes, we conceded your honor that Petitioner likely will face future harassment based on her sexual orientation, but not the clear probability of persecution that discord jurisprudence requires. The weight of the evidence and looking at it from an individualized, or particularized, the particularized evidence is just not here in terms of its application to the Petitioner. Yes, Petitioner did provide evidence showing that people are being raped. But those were done by family members. Father is deceased, the one who used to be her. They are being people are being harassed and raped who live openly as homosexuals in India. So her argument, as I understand it, is that she is unable to live freely and openly as a member of a particular social group. And that is a form of persecution, isn't it? Yes, you are not. If people are being raped, it is a form of persecution, but she has not shown that her own that she will be subjected to such. Under the evidence. So that she has a fear of persecution if she is returned. If she has her own subjective fear of persecution, if she is returned to India and she lives openly as a gay person and Indian society. Based on the record of your honor with the Supreme Court, which the highest court in the land has criminalized homosexual relations in India. That is a first step, your honor. And the record does show as Judge Locke pointed out that India is moving towards acceptance of homosexuals and lesbian relations in India. They record does not show the kind of widespread persecution that Petitioner is making. The country report actually is pretty ambivalent in this case. The country reports shows that there are instances of actions, but it does not show the kind of widespread horror that Petitioner is making. It shows that there are steps being made that the NGOs are actually training police officers so that they can respond properly to these abuses. And it shows that there is a change in India. Much like most parts of the world, your honor, change takes time and India is moving towards that as the immigration judge and the board acknowledged. So there isn't until there's changed as you indicate she has to go underground in order to avoid persecution. I know you're on there. There is nothing underground about the gay community in India. The record shows that there are gay clubs that even her girlfriend who still lives in her ex girlfriend who still lives in India. Actually, he's able to maintain some semblance of her relationship by attending by mixing with fellow gay people in India. So there isn't a record of this widespread societal persecution. There is discrimination. There is harassment. But based on this court's jurisprudence, it just does not rise to the level of persecution in the honor. In terms of what is going on in India. And when the record is ambivalent, like it is here, where there are, as you've pointed out, there are instances of widespread discrimination and harassment. The agency's job was to look at the entirety of the record. I'm not passed a record. The court's duty is not to pass the record to see what could have been or maybe we could find this way. So long as substantial evidence supports the agency's ruling and there is no compelling evidence in this withholding over-mobile case, which requires a higher burden of proof that is the standard of a clear probability. You know, Anna, she has not petitioner has not made that compelling evidence here. And again, the court does not pass the evidence. It is based on what the agency has found to be if the agency makes a substantial case, which it did here. That she should not have not provided sufficient evidence compelling the finding that she will more likely than not. You persecuted Anna, count of her last being orientation. If she were returned to India. And again, the government comes see. I guess I'm trying to figure out the country report seems pretty compelling. But India is not there yet that almost actual is in India still face harassment. They still face persecution. And so she has a subjective fear that she's returned to India. She cannot yet live openly as a gay person without being subjected to harassment and persecution. Her arousstment to your honor is not persecution. Again, the government reiterates that the agency looked at the evidence in its entirety. If you're a lesbian in India, it's not persecution that you cannot live openly and freely as a lesbian in India. You have to hide the fact that you're a lesbian. That's not a formal persecution. No, you're an honor. There are the record does not show that there are lesbians and gay people in India who do not live openly. Petitioner is dating a choice that she would make in India. The record does not show that she cannot live openly in India, especially. I guess the concern that I have is the country report that in the established that India is there yet. In the Supreme Court of India, decriminalized same-sex relations. It's said it's too early to determine how that ruling will translate into social acceptance. Yes, and social acceptance here, honor is not persecution. Again, the record does not point to anything that suggests that Petitioner will be persecuted. The government consists that there is harassment, there is discrimination just as there is in most parts of the world. There are many people, even in the United States today, which is not to live openly. It doesn't mean that they are being persecuted. It is just their choice to make that overt decision not to live openly. But discrimination and harassment does not equate persecution, honor. The agency looked at the record in its totality and came to the conclusion that there was no compelling evidence whatsoever to suggest that Petitioner will be persecuted in India. Again, this is a withholding of removal case. The standard is the clear probability standard. It says a lot when the highest court in the land here in India, decriminalizes gay relations. It shows that India is moving forward. The fact that India has not totally embraced gay relations does not mean that people are being persecuted. And there is nothing in the record to suggest, again, your honor, that Petitioner will be persecuted in India. We have her gay friends, example. She chose not to live an openly gay life, as Petitioner said she wouldn't, which is a choice. And she has not been harmed in India. There are no reports whatsoever. There is nothing in the record, your honor, to suggest that Petitioner will be persecuted. In India based on her sexual orientation. Any other questions I'll just round up, your honor? Thank you. Thank you, your honor. We think the board properly determined that Petitioner's fair future persecution is speculative, and that she will not be harmed. And so we asked that the court denied a Petition for review. Thank you, your honor. Lotta. You understand that this substantial evidence stress is pretty differential to the CIA. I think that the record comes out. That was a very conclusion. How are you going to get me back? Yes, your honor. This court's case in Qingying, Lou, stated that the IJ cannot just speculate in reach conclusions. And that statement in the State report about it's too early to know when things would get better, especially when there's a vice-news article for the following year that interviewed activists and victims explaining how things actually worsened with the gangs that would catfish homosexuals and then beat them and recorded and stream it on the internet. I would say that the judge, when he reads that statement, that's a quibical in the State report. So it's not a substantial piece of evidence in the record. When there's direct evidence to the contrary, that's later in time, counsel is your burden to show under withholding the clear probability standard, that's essentially more likely than not. And so a statement that we can't tell yet because of these new developments, what it's going to be, doesn't, is an indication that you cannot meet or have not met your burden, isn't not? But there's later in time evidence demonstrating the opposite. This is not, we're not the trial. I'm not the fact, finer. I might hearing this evidence have reached a contrary conclusion. The fact that there's contrary evidence is the case in every single or just about every single case that you bring and every single immigration case we hear. So the reason for the substantial evidence test, and this is the question that Judge Wilson asked you, what evidence compels a contrary conclusion? So you're on, in my brief, I cited a six circuit case and a BIA case that said that you cannot, in the six circuit cases, the same standard, it reviews this court is required by law. And in the six circuit case, they said, you can't just rely on the State Department report in ignore contrary evidence. The judge needs to grapple with that. And there is more evidence to support. I read, for example, an article that you yourself submitted from human rights watch, which seemed to support exactly what was in the, the, the, the country, it was in the country report. So you're on, I would like to stop resisting that point because we, we offered three reasons for reversal. So that goes to the future fear of physical harm going back to Judge, let go as question, the original question. And the future fear of a threat to her freedom to live openly and freely as a homosexual is by itself enough for an approval of the application and concepts of that. In that case, there was an argument of physical harm for political opinion, as well as a, a freedom argument as to religious expression on an overload, lapting fact pattern. The case chief judge prior said that the, the record did not compel a finding the physical harm. So I'll grant you that judge, look, that even if that is the, the court's opinion on that prong of the argument, the, the independent basis for the claim that she couldn't live openly and freely as enough for reversal. Thank you very time, Anderson. All right. Thank you, council. The court will be in recess for 15 minutes.

Let's be seated. This is Pay Cargo versus Cargo Sprint. And no Arash can does here for the Appellancus Cargo Sprint and Joshua Wolf. In Matthew 1 Shaw is here for the Appellancus Cargo. And Mr. Reshka and you may begin. Your honor and may please the court. I represent Cargo Sprint LLC in Joshua Wolf. This appeal stems from a trademark dispute between Pay Cargo LLC and Cargo Sprint LLC formerly known as Pay Air Cargo. Over the use of the name Pay Air Cargo, we're both companies offer to pay Cargo fees. The District Court aired at three critical stages in the proceedings below. First, the District Court aired when it granted summary judgment in favor of Pay Cargo when there was significant and powerful evidence that the Pay Cargo Marks are generic. Second, when Pay Cargo lacked ownership, there was evidence that Pay Cargo lacked ownership and therefore standing as to in light of invalid assignments of the Pay Cargo Marks from an entity called Co-Heway to Pay Cargo. And then for a third mark from a Florida Pay Cargo entity to a Delaware Pay Cargo entity, Appellancus Cargo is a Delaware entity. And then there goes for an abandon the distinctive, distinctive argument by an indisellum agreement in the first place. It did not abandon much of the acknowledgement in it. It's not an agreement itself. That the term is distinctive. That would be if the settlement agreement was entered into knowingly and without knowledge or under the circumstances because there was no owner of the bill. Because there was no ownership. Pay Cargo knew that there was no ownership. But you entered into a settlement agreement. I mean, for me, and I speak for myself only, I have an issue because I view this case as really almost an enforcement of a settlement agreement at this point. Yes, sir, in any event, a mark can be considered generic at any time and can be found to be invalid at any time. If it was obtained by fraud. And so I think that I don't think that that the settlement agreement, this is not a case where there is an attempt by Cargo's friend to go back to the old name. Cargo's friend has changed its name. It has been known by Cargo's friend for a long time. There is an in a permanent injunction in place that would not be affected by reversal on these counts. That was as a result of the breach of contract claim, which is not an issue in this case. I don't understand the fraud argument. The fraud, if the mark was obtained by fraud from the United States, Batman trade mark office. Yes. As to that issue, there were applications filed when prior to the marks being used in commerce. And the statement in the application was that the marks were in use in commerce. That could have been considered an inadvertent mistake by a lay person. But there were additional, knowingly false statements made in response to an office action that was covered in the brief. That's the false representation. The false representation was, again, that the marks were in use in commerce. They needed to provide additional specimens with an additional declaration that the marks were in use in commerce. They have witnesses who testified that the first mark was used in 2003 in presentations to potential investors and customers. Yes, but that was not using commerce. That qualifies, that does not qualify as using commerce. And it was established that the first use in commerce did not occur until 2009. The district court found that, as to this issue, that in addition to the requirement that there would be a false material statement, that there have to be, it's sort of an intent to deceive. There has to be sort of a state of mind requirement to reach the element of fraud. That's the difference between sort of false statement and fraudulent statement. And our case law seems to support that our sovereign case, which adopted the bow standard seems to support that. And the district court relied on bows, which distinguished between mistakes of law like this, versus outright fraudulent statements. And what bows held or a bow set is where there's undisputed evidence or where there's evidence to suggest that there was a mistake made about what in commerce meant with the law was that that is not fraudulent intent. And here, as I read it, there was evidence submitted by the other side to say, we didn't, yes, we got this wrong. We understood in commerce to mean something else. We made a mistake of law here. I don't see that evidence being disputed. It is because there was the additional statement, which should be viewed as an admission, that the reason why they made the statement as to the office action was they were doing everything I believe the quote is, they were doing everything to get this past. That's not inconsistent with, you're right. I mean, that's in the record, but that's not inconsistent with, we understood this to be the X and we're trying to get this done as quickly as possible. Those are not inconsistent in any way. I don't see how that that disputes that sort of is ahead on genuine issue of material fact that would create a jury question on that. Can you, can you help me with that? Not anything more than I've already said. Okay. Thank you, council. I would also say is in addition to, in addition to the fraud issue, which we've just covered, which was the third issue, the second issue as as the standing. In light of an invalid assignment via visa via visa via visa and attempt through a non-protonca agreement as well as an examiner's amendment that. So let's cover the first two marks. So the first two marks deal with a non-protonca agreement, the last one deals with the LLC issue. So as the first two marks, as I understand Florida law, it's that where a contract language, the operative contract language is clear, a recital that may be inconsistent with that does not overcome that clear and unambiguous operative language. Do I have Florida law wrong on that? I think you have it right, Your Honor. The problem is that this was, it was a non-protonca. So it was not intended to create a new agreement. It was intended to codify something that had previously demonstriably not to have occurred. And that's where that's where the issue was. Well, I don't think anyone disputes at this point, and if they did, they'd be wrong that, in other words, you are right that the original agreement didn't do make the assignment. I don't think anyone really disputes that. I think what I understand the argument to be, and what I understand the district court to have determined here was, there's no genuine dispute that the operative language here is unambiguous and it unambiguously assigns. So even if the original agreement didn't do what it was supposed to do, this one does. And whatever recital is there, which seems to indicate or call back to the original agreement, can't overcome that clear and unambiguous language in the operative language of the non-protonca agreement. And do I have that wrong? I believe in the way you've recited it, that's correct, in assuming that a non-protonca can create a new agreement. And my argument, resident in agreement, I mean, it is a separate agreement. It just calls back to the concept of non-protonca is just that it happened. We're deeming it to have happened originally, not that it is part of the original agreement is it? Correct, but this was not an amendment to the original agreement. Agreed. Yeah. But isn't that the point meaning it's a separate agreement? So as to that separate agreement, the operative language seems to be unambiguous. And correct me from wrong, I mean, if you think it is, tell me, but the operative part seems to say, we're assigning all the goodwill and all the trademarks to this entity. And the recital says maybe something different or it intimate something different, but that can't overcome the unambiguous language under Florida law, right? I think that, well, I disagree that it can't because of what a non-protonca is. And that it is essentially taking the place of something that previously occurred, but in this case did not, it demonstrably did not occur. And so had they prepared a new agreement that amended the prior or something of that nature, that wasn't a non-protonca, which can't change history, then we would be operating under a different set of facts. But in this case, that's not what happened. And to hold that a non-protonca can change history, I believe, would be an error to do. What do we do with the language and the settlement agreement, which seems to indicate an emission by your client, that this was validly held by the prior entity? And this goes to some of the questions I judge, let me go and judge Wilson asked you. Yes, Your Honor, I think that it becomes irrelevant if the court agrees that there was evidence in the record powerful and considerable evidence in the record that the Marx of generic, in which case it would not matter, because the generic mark is unpredictable. So what do we do with our decision, though, in the United States, patent and trademark office versus booking.com, which rule that compound terms, like we have here, a encargotle, a cargo? Yes, Your Honor. Excellent point. The booking.com case does say exactly that. Booking is a generic term. .com is a generic term, bringing them together does not automatically make the term booking.com generic. Nobody is asking for a booking.com, so one might ask for a booking. In this particular case, pay is a transitive verb, according to Webster's dictionary, and it requires something on which to act. In this case, it acts on the only other word in the mark, which is cargo. In other words, what isn't doing what you're doing now, which is literally word-forward, what you did in the brief. Isn't that exactly what Justice Ginsburg told us not to do in the booking.com case, in other words, you don't just look at these terms in aggregate or individually, and then just sort of mash them up as the definition to say what it is. You actually have to look at the term itself as a defined term, and sometimes the term itself will have a definition as mashed up, and sometimes you'll need survey material to see is this generic or not to be able to understand it. So the example that Justice Ginsburg uses is milk delivery, it's two separate words, versus barn milk together. Here you have, we can't just look at it definitionally and then put the definitions together as you seem to do, we have to look if pay cargo has an independent meaning itself, right? Correct, and we can do that, fortunately, because there's additional evidence beyond just the dictionary definitions as, as you're, I'm sure you're well aware because you read the briefs. The patent registration that was submitted does in fact include the type of evidence in language you're talking about. And you do it, you make both those points, but if you look at, I think it's page 26 of the read brief, and all they do is just like the patent language. There's a ton of things that these patents do, I mean you're right, it includes it pays for cargo, I mean that is essentially what the product does, but it does so much more than that, with regard to goods methods processes, for example, it says that it includes information management of financial records for the freight industry, customer service and dispute resolution, electronic processing credit loans, and esophwear, all as part of the patent applications, right? That's correct, your honor. And as it pertains to the infringement in this case, it pertains to amongst other things, the fact of both companies, what they do is pay for cargo or pay cargo fees. But it does a lot more than that, in other words, that's not just what they do, if that term, if we're looking is we're defining it by the application, seems to do much more than that. It may not be generic as to those other things, so that might be a separate question. And I see that I am out of time, I had additional issues, I know the court is aware of, but at this point I will stand on the briefs. Thank you. Thank you. Council. Mr. One, shall. May it please the court, Matthew Weinshal of Potter's Door Sick on behalf of Pay cargo, the Hepelie. This court should affirm the judgment below because there is no error in granting summary judgment on land hemacliability and no abusive discretion in the court's evidentiary and fee rulings. I'd like to focus this morning on the genericism argument and the standing and fraud arguments since that's what my friend addressed and rely on the briefs on all other issues unless the court has specific questions. I'll start with genericism. As Judge Wilson articulated, booking.com is the governing authority on genericism and Judge Luck, you had to write the term itself, the combined term has to be analyzed, not just the separate components. And each of the examples that the other side points to in the patent documents does not have pay cargo, the combined term itself used. There it's payment of cargo fees, payment for cargo shipments. And the argument itself that pay cargo somehow is the term that names a service, which is the standard that has to be met, is simply an accurate because cargo is not paid. Right, cargo does not receive payment. The payment is actually for the fees for shipping cargo by a rail, by a air, by things like that. I think if all you did was just pay cargo, in other words, if what you did was send someone to pick up a check and walk it over to the port to pick up to pay for the stuff. That, that, I have to say that would be a little close, but that's not as I understand the patent applications and what you all do. It's not that. It's actually kind of sophisticated of what this system is. Do I have that wrong? You're right, you're on our in terms of the things we do. I think even under that even if all we did was pay cargo fees, I think at most you can make an argument would be descriptive, not generic because to meet that booking.com test you'd have to just as Ben, Ben'sberg said, You'd have to be able to say cargo sprint is a pay cargo or cargo, what is your favorite pay cargo? There's no evidence in the record that anyone in the industry, the relevant public uses or understands the combined term pay cargo in that manner. And it's very important that this, this, this, this, Mark has has been registered as incontestible, was where then starting from a position as this court has made clear and engineered tax services in rural Palm, where there's a presumption of of of distinctiveness. And so it's on the other side to come forward and disprove that distinctiveness. They need to do that either with a survey or with use in literature and there's just simply not an example anywhere of anyone in the relevant public using that combined term in that manner. But you're right, you're on our pages 26 to 27 lists the suite of services that pay cargo offers from dispute resolution to data management to the settlement of financial transactions and really all of it surrounds the release of cargo shipments from shipers. So on on genericism there is no dispute effect that that pay cargo is at least suggestive presumed to be subjective, suggestive and and the presumption was not overcome. It's also a burden of persuasion as this court may clear in engineer tax services. On the assignment issue and the fraud issue, Judge Wilson, you, I believe you may have authored the the sovereign military case and that does control the analysis here. There is no evidence that that there was subjective intent to defraud the PTO and the only evidence in the record is that is that when the when the representations were made to the PTO that they understood the term use in commerce to mean used in sale or advertising. And if you actually look at the office action that my friend referenced, which is at 184 at 100, the office action simply asked for an example or a specimen of pay cargo that is quote used in sale or advertising. And so all pay cargo didn't response that was and and one of the examples they said you could use is a website. So when pay cargo's response was just that 184 at 71, they supplied examples of its website that was in use and it's and it's promotional materials that was advertising its use. So exactly what the patent and trademark office asked for. So you know our position would be there wasn't even a mistake. And so the fact that at most there was a mistake in law and of course the mistake in law only got clarified seven years later in the federal circuits decision which clarified what use in commerce means. Other circuits though had come out that way, hadn't they. I think they have although we decided to case from this circuit which suggested that use in commerce can just mean advertising and putting it out to the public and that's clearly how pay cargo understood the term to mean. And that's especially given the instructions on the the office action in December 2007 it's certainly steamed consistent that if you use it in advertising that that's sufficient. On the standing issue, I know we only got to the Nunk Protank issue before your honors, but it's clear the plain language of that agreement is to give these trademarks to pay cargo LLC that agreement has absolutely no other purpose but to do that it's a one page document which is very clear it identifies the trademarks and says we're making sure that co he way is giving those to pay cargo. And there's just not any evidence of the record that anyone understood that assignment to be anything else. Recital does intimate I think you even can see that it does intimate that this had pre existed but we're sort of doing this anyway. Does that not create at least some issue. Whether you call it an ambiguity or not, but some issue effect on the on the ownership issue. I would argue it does not because of the law that you cited your honor that a recital can't contradict the plain language of the agreement and the clear intent of the parties. But if you look at that language and the recital what it says is that these the transactions contemplated by the LLC doesn't say it actually was affected by the LLC agreement and it's you know it wouldn't make any sense to create a new entity called pay cargo and retain the name pay cargo within co he way. And and if you actually read the assignment language and the various definitions it's not like the the LLC agreement to find these trademarks and said these trademarks remain with co he way. And in fact under the defined term pay cargo intellectual property in the LLC agreement. It suggests that that if there's anything that's pay cargo intellectual property would make sense that the name pay cargo this pay cargo intellectual property. But the LLC agreement seems pretty clear you're right. It doesn't identify the marks themselves, but it seems pretty clear of. This is what's there is and anything not there's retains as our intellectual property or property. Yeah, and so and so if all we had was the LLC agreement then there might be ambiguity, but that's why the assignment was made to resolve any ambiguity may clear what we meant to do back then. And what we in fact did because pay cargo came to an existence and they were using that they were using that mark was we gave this to pay care pay cargo. I know we didn't address it with your you're opposing counsel, but if you could the third mark the issue with the third mark. Right. So is it not again at least for genuine issue of material because that's what we're talking about here is just is there evidence. Is there not evidence to suggest that another party own this own the third mark where that entity was listed on the application as being the owner of the third mark. Know your honor because there there actually is no evidence in a record that there is a Florida LLC called pay cargo right there there there all that all the that is there is that a. Florida corporation called pay cargo LLC because the the application says the identification of the applicant is pay cargo LLC a Florida corporation. Do the whether have to be such evidence in other words if if all I'm doing is trying to say to question whether you you being your client owned the mark. Would not the fact that another entity registered it be indication that you don't own the mark whether that entity in fact existed at the end of the day or not. Well, this court in common doors entertainment court said that you can have an examiners amendment that that that that corrects it or or a misidentification is not sufficient to the scrivener error there and common doors was. Very very my new I mean it was an asset the end of the name it wasn't a different corporate entity right well all the only scrivener's error here was Florida in place of Delaware right so so just because you identified the wrong state in the application. And it got corrected before the registration was even issued then the registration is issued then I don't see how there is a real strong argument or even a sufficient issue of fact I'm not sure what what the issue of fact is right the if anything this is a legal issue what's the legal effect of of that scrivener's error on the the legal implication of ownership. And so so so I don't think that there would be a dispute effect even if you found that there was a dispute effect as to 69 again we have three 15 and one one two which are all sufficient and we also have the unfair competition claim which doesn't require a registration simply requires prior use and and and the validity of the mark and there's no dispute that that that that that sufficient to sustain the damages in this case. And I'd also point out that that mark has become 69 is becoming contestable so it's not identified as a grounds to contest a mark that that there's some defect in the application process that's not listed as a. And so I think that that's not as a ground under 1064. They would have to wait on fraud in order to even get to the ownership issue. I think so yeah and and there's just no evidence that anyone understood the examiner's amendment to not have any effect right I mean the the whole point of an examiner's amendment is the people who are. Most knowledgeable about the patent and trademark of us the people work there said oh I think you know this was incorrect. So we're just going to change Florida to Delaware and so and and the point I was making before about whether there was an actual entity I believe if you go to this is in the record but if you go to sunbiz there is a Florida LLC called pay cargo LLC. But it's an LLC not a corporation there's difference obviously in versus LLC but but I think the point that the other side was making was that find like let's say you have. If there was pay cargo LLC you called it a Minnesota corporation find you can correct that under the patent and trademark office rules because there is no such thing as a Minnesota corporation but if there's an actual Florida corporation you can't correct it. And I think for that argument to hold there it actually have to be it would have to be in a name of an actual entity and there's no evidence that an actual LLC in Florida. Sorry then actual Florida corporation which what it was called in the application exists and in any event. You know the examiner's amendment we think takes care of it. And the general system real fast yes so in in the reply brief you're opposing counsel points out some examples that have been found to be generic to that that he site specifically are turbo diesel and gas badge we're both found to be generic. I have to say those seem kind of close to what we're talking about here. Is it that those cases are sort of irrelevant now after booking calm is it that this is so different than those what how do we how do we distinguish those patent cases from what we have here absolutely there's those and and also the screen white case those are all cases from the federal circuit. I think one point is that booking calm made clear this distinction between descriptive and generic and it's and those cases you know we're from an earlier time where that line may not have been as clear. Another point is that this court is never cited or or relied on on those cases to hold genericism. I believe the turbo diesel case was actually cited in descent in the city bank case from this court in 1984 suggesting that turbo diesel actually probably would not be consistent with this circuits precedent. I believe ab core was cited which is the gas badge case in the vision center case from this from the form of fifth circuit. But but that case actually held that vision center was descriptive not generic. And the difference in each of those cases is not just the combination of words because you have that there but it's it's that in each case. The court found that that combination of words actually named a product so a screen white you can go out and it meets the just the skin's birds test you could say what's your favorite screen white can I have a screen white can I have a gas badge as something that monitor is gas. And then in turbo diesel actually there was additional evidence that held that they found in the record of turbo diesel being used to name a class of engines. They they found in the press that we think this is going to be called the turbo diesel engine. And so there's no evidence like that in this record so so yes you can look at examples of various words that that that may be combined but the question is what's in the record that proves that consumers or the relevant public actually understand that term. To mean and to name a class of services and there's not any of that in this record that actually anyone in the world understands if you were to if I would just go out and to a relevant person in the industry and say. I need to pay cargo. What would they say I don't know what you mean you're missing words there for me to understand what I have a clean. Clean next would it would mean something different to people but but you need some evidence in the record and that's what booking calm tells us is that you can't just rely on the words you have to see what's in the record and there's no evidence in the record here that would support that. So unless the court has any additional questions oh I'm sorry the end and the gas badge case actually the majority opinion that case found it to be descriptive the only the concurring opinion about it to be generic. Thank you. Thank you council. Mr. Rushcat you deserve some time for a battle. I'm just to address the last point I think there's a distinction here between. A product in a service one might ask for a clean x one might ask for. A booking but nobody is going to ask for a plumbing services but plumbing services would be generic for plumbing services in this case. Both entities pay cargo fees for their customers so it in similar it's similar to asking for a plumbing services it doesn't exactly line up it's not. We're not so much more than we do I think. The only thing that I wanted to do is to do it with the same as asking for a booking or asking for a clean x, but that doesn't mean that the. The mark cannot be generic but I want to also just sort of bring back to the forefront that this is this was decided at summary judgment. You were asking that the court, that this court and the lower court find that pay cargo is generic as a matter of law. But at the very least, if not just the dictionary definitions, the patent registration, where pay cargo uses the phrase, pay for cargo. That in addition to the dictionary definitions should at least be enough that if this court does not agree the mark is generic as a matter of law, it should have been an issue for trial. So we're asking the court to consider that. And a lot of these points, Judge Lock, you also, you addressed before I had a chance to. But as to the third mark, one of the questions is that was raised was if you, if you couldn't, I believe, if you didn't find fraud, could you find that the change that was made as to the entity from the Florida entity? Because it's a contestable at this point, as I understand it, there's some limited statutory bases. And one of them is fraud and that's one that you brought. But outside of that, I think ownership and may not be one of them, is that the issue? Well, what the case is say, and actually it's 37 CFR 2.71D, is that an application that is filed in the name of the wrong party is void abyssio. And so if the correct entity filed at the Florida entity, and then never assigned it to the Delaware entity, I don't know that there's necessarily evidence of that. But if in fact there was a Florida entity and there was, called pay cargo. And that was not the correct owner at the time of the filing, then the application would be void void abyssio. So that's the reason for the basis why we're asking the court to declare that it's invalid. Just a point that my friend on the other side said that if at the time of the signing of the LLC agreement, there was an existing entity called pay cargo. And it wouldn't make any sense for a co-heway to retain the rights to the pay cargo trademark. When in fact there was a pay cargo entity in existence. But that's precisely what the agreement did. And it would not be uncommon in a trade marks scenario for a separate entity to retain ownership rights in a trade mark and then license the rights out to other people. There's no indication that was done here. There was no assignment and there was no license agreement either. But it would not be out of the ordinary to have an entity retain IP rights, then license them out to a third party. If the court has no other questions, I would stand on my briefs. Thank you, council. Thank you. The court. The court will be in recess until 9 o'clock tomorrow morning.

is Derek Alfonso Moreley. And Ben Kuni is here for Moreley. David Turkin is here for the United States and Mr. Kuni, you may begin your argument. Good morning, Your Honors. I represent Derek Moreley, who was convicted of drug offenses in the Southern District of Florida and received a 60-month prison term. The appeal presents four issues. The warrantless search of his car, lawfully parked, based on the apparent authority doctrine. Whether the evidence of his participation in the conspiracy and substantive count was sufficient and the use of the deliberate ignorance instruction in a case where there was no factual underpinning for that instruction. The fourth issue, the failure to assess a safe devolved consideration, we rest on the briefs and light of the pulse of her versus the United States Supreme Court decision of last week. This case involved Mr. Moreley, who was identified as a dupe. And the question presented, decided adversely by the jury, is that he was knowingly involved in a conspiracy. The evidence is slim, is limited to knowledge between Moreley and Edgecome. Plainly the principle in this scheme. Individuals who knew each other actually had stood up at Mr. Moreley's wedding for him a few months earlier and had a legitimate automotive-related business. Mr. Moreley was a mechanic. Communications, phone calls between the two when Mr. Edgecome came from into the United States, no suspicion of any wrongdoing whatsoever on Mr. Moreley's part. Mr. Moreley, at the instructions of Edgecome, drives his car to a shopping parking lot. Why? Because Edgecome had left his briefcase overnight in the car. Mr. Moreley was stopping to drop off the briefcase. Leaves his car could not lock it because the locks were broken. Goes to the Wendy's and while the drug deal a negotiated by Edgecome takes place, Edgecome tells the informant, go to that car. The briefcase is on the front seat. The informant does. Mr. Moreley, at that time, is using his mechanic skills helping some stranded motorist in the parking lot. The confidential informant retrieves the briefcase, goes back to Edgecome, they exchange funds, arrest take place. Mr. Moreley is arrested while he's under the hood of the car that he was helping as a good Samaritan. The access to the car was challenged. What was the basis for the informant? Based on instructions from somebody who had no association with that car, did not arrive in the car, was not a passenger in the car. Did not the informant have a reasonable basis to believe that when I'll call him the friend, but that the codependent here, when he directed, hey, the drugs are in that car, but that was a credible statement from which law enforcement and an informant could rely on. And we know that because there was an earlier drug deal between these two where he gave and supplied a half kilo of drugs, there was negotiations leading up to this. You only talked about the day of, but there were negotiations leading up to this for a three kilo purchase of drugs. He said another guy was going to bring it. The guy came shortly after that statement. And they saw the law enforcement before that saw, your clients surveil the area. They saw him sort of looking suspiciously back and forth while he was at the Wendy's. And the friend told him to go there. That seems close to if not probable cause to say that there were drugs in the car, right? So you're on her. There are a confluence of facts that are not possessed by the informant, by the government actor. But that's not, you're right, certainly. The informant knows a lot of what I just described, not everything, but we look at collective action in these contexts, especially when we're talking about a law enforcement or someone acting on behalf of law enforcement doing something, right? We do, but the informant had no knowledge of the car, the arrival of the car, Mr. Morley, whatsoever, and in fact, the evidence presented by the government, known by the informant knew not to give the briefcase with the cash until he had the drugs, which was the reason why then Mr. Morley's friend called him to tell him to come over with the car and to leave the car park there. I mean, if you have a briefcase of someone that is a friend of yours and your car doesn't lock, you don't normally just walk away from a car, do you? I think you're on her. If flips both ways, the government says, you wouldn't leave cocaine with somebody who doesn't know what's cocaine under circumstances that could result in somebody taking it. Well, obviously, and also you wouldn't leave three kilos with someone you don't trust. Or would you leave three kilos in a car that's not locked, going into the Wendy's to get breakfast, get a meal? But there was also testimony that he kept looking back to, because the Wendy's was locked, that he kept looking back to see what nervously what was going on with the car. Well, there was testimony that we've written about that in the briefs. Your honors are familiar with it. But the key there is he goes and helps as a good Samaritan. Somebody else totally oblivious to the car and the supposed knowledge of cocaine in a briefcase. And as your honor pointed out, the informant was either put under circumstances where Edgcome was trying to rip him off by suggesting and asking for the money to be delivered first. So there are two exceptions to the warrant requirement. Yes sir. The government's going to argue when they get up here. And one is the automobile exception and the other is the consent exception. Correct. You know, first of all, I would in the automobile exception fly because the car could be moved at any time. And there was a history between the informant and Edgcome. So with regard to the automobile exception, let me just briefly say the consent is the apparent authority issue which I've argued in is briefed. The Edgcome had no apparent authority to authorize consent. With regard to the automobile exception, lawfully parked car, no key in the car, parked in a lawful parking space, nobody in attendance at the car, no ability to drive the car away and no ability to stop the police from taking the status quo while they sought a warrant. Do I hear you arguing mobility? Is that what you're arguing to us? Automobile exception was not used as the basis for the denial of the motion to suppress. I don't agree with that. That's not my reading of the district court's order. But even if it was, as I understood it, the parties conceded or at least didn't contest below the mobility part of it. What you argued both in your brief and below was the probable cause part of it, right? Yes, Your Honor. And the court did say automobile exception, did say consent and the circumstances for automobile exception don't apply here because the car could very readily have been detained. I know that's not the law. Again, you seem to be arguing mobility for the first time, but indulging that. That's not the test for mobility. Is it the test for mobility is can the car move? Not could the police stop it or the keys away from it at that time? It's not mobility at the moment. It's the ability of the car to move or not. In other words, we distinguish between a wreck with all four tires gone. That's not really an automobile that has the ability to move. Versus that which someone drove there walked away from that car clearly has the ability to move, right? No doubt judge, the car was an operating, your Honor, the car was an operating car. There was no circumstances at the present time when the informant went to the car that suggested any mobility and that's the time that the search or the informant's access to the car as a government agent took place. It just doesn't seem to be what the test is. In other words, it's not mobility at the moment of search. It's the ability of the car to move in general. As I understand it, do you have any law that supports that the mobility is looked at at the moment the search? Or is it what I described as the operational capacity of the car itself? Your Honor, it is the court automobile exception still utilized the totality of circumstances test. That's on the probable cause side. Probably on the probable cause side. Under the mobility, under the circumstances here, is this car able to be moved and while able not under these circumstances of lawfully part? The automobile exception should not have applied. Let me move to the... Let me ask you about the deliberate ignorance instruction. Yes, sir. I know that you have left. There was a deliberate ignorance instruction, but there was also an actual knowledge instruction, right? Yes, sir. That's the case. Then we're bound by our decision in the United States versus the state that any error would be on. There's an actual knowledge instruction given in the addition to the deliberate ignorance instruction. Yes, Your Honor. The wrinkle here is that the deliberate ignorance instruction when combined with a very slim case of actually no evidence of knowledge suggested and all point out as we pointed out in the brief, the government rationale. In trying to argue for successfully the deliberate ignorance, the government states to the judge, he never made any attempt to ask edge comb what was in the bag despite multiple calls, plainly the negligence aspect that has caused this court and other courts so much concern with the deliberate ignorance instruction where the evidence doesn't suggest any deliberate ignorance, the government allegation was actual knowledge and the evidence of actual knowledge is slight as we pointed out in point two. This case doesn't fall under the there's sufficient evidence of guilt of actual knowledge, there is not. And the deliberate ignorance instruction elevated this case to essentially Mr. Morley convicted because he didn't do what the government suggested should have done which is asked questions and that's not a basis for a conviction. Based on the briefs and the argument we asked the court to vacate the convictions and either remand for a new trial, suppress the evidence or discharge, Mr. Morley. Thank you, Your Honor. All right, thank you, Council. Mr. Turkin, you may argue for the government. Thank you, Your Honor. May I please the court, David Turkin and with me, Council's table is trial attorney Hayden O'Burn on behalf of the United States just to address some of Mr. Cunies' comments going first to the issue of probable cause and the automobile exception to be clear, it was raised at the district court level that the automobile exception was a basis to search the vehicle. The district court below did find that the car was both readily mobile and that there was probable cause and to follow up on what your Honor stated regarding what the automobile exception requires, the automobile exception requires only that the vehicle is readily mobile and operational and that was established by virtue of the fact that more lead, the defendant in this case drove the vehicle onto the scene in part the car was not disputed not raised at the district court level nor was it raised in the appellance of the brief and so it's the government's position. It's not an issue here regarding the question of probable cause. The government's position that in this case, the confidential source in this case had more than a reason to believe that the friend Edgecom in light of the fact that they had previously had a drug deal on August 6th, 2021, a successful drug deal a controlled transaction where half a kilogram of drugs were sold. The source had reason to believe based on that that Edgecom was a legitimate drug dealer who had both access and control over large quantities of drugs and someone who was willing to follow through on a drug deal that was being coordinated. And they had negotiations after that initial sale and purchase to acquire additional kilos. That's correct, Your Honor. After that initial drug deal on August 6th, there were additional communications or additional drug deals were discussed. I think that the kilo was 21,000 or 23,000 with a negotiation. $4,000 a kilogram. And in addition, what I think is also significant to a probable cause determination in this particular case is the fact that in the subsequent discussions between the confidential source and Edgecom, there is not only mention of a subsequent drug deal, but that there was another individual involved. So at this point, not only does the source know that Edgecom is a legitimate drug dealer, but that there's another individual who has part of this whole conspiracy and also has access and control of the drugs that they're discussing ultimately dealing with on the day of the actual. And wasn't there, I think, also a discussion where Edgecom wanted to have the drop at a different location and law enforcement suggested to the CI know we need to have it in an open location. And so there was a rule saying that he couldn't move his car. And that's why the initial decision was made to do the drop off in that location. That's correct, you're on our originally. There was a location that had been suggested. I believe it was actually texted by Edgecom to the confidential source somewhere that I think was in close proximity to the Home Depot with the deal ultimately took place. But in order for law enforcement to have tactical control over the situation, they had the source reach out and create a ruse as you're on her stated and switch the location up to the Home Depot. And at that point, the CI knew that there was another person who was coming to bring the kilos. That's correct. And in fact, at the scene on September 8th, 2021, when the drug deal took place, when the source asked Mr. Edgecom where the drugs were, he said it was coming. He said someone's bringing it and you can even hear on the video of this particular transaction. And that's government exhibit 22. The source during this whole interaction is on the phone with somebody he's calling angel, but is actually an FBI agent listening in that they're waiting for his friend to come. So at this point, the source knows number one that Edgecom is a legitimate dealer that there's another person involved in that person is coming to deliver the drugs. So when the car actually arrives, an Edgecom tells the source, you go get it. It's in the passenger seat, specifically the fact that Edgecom knows without even going into the car himself, that it's in that car in a particular location within that car, based on the totality, the circumstances. The source has more than reason to believe number one, probably because of the fact that there are drugs in the car on the passenger seat, which turned out to be true. And also, those very facts also support the government's argument of apparent authority, since based on this, it was entirely reasonable for the source to think that this was all part of the deal. We don't have to reach the apparent authority issue, though, if we find probable cause, less the mobility factor. That's correct. This court doesn't even have to reach the issue of apparent authority. It's the government's position that the probable cause here is significant, and that there's no reason to address the other arguments regarding the search. I'll next turn to the defendant to Mr. Cunie's argument regarding a deliberate ignorance instruction. It's the government's position here that there was more than sufficient evidence here to support the instruction. And alternatively, there was more than sufficient evidence, even if the court finds that the ignorant instruction was inappropriate, that there was sufficient evidence of actual knowledge based on the totality of the evidence in this case, which is significant. I believe even the district court said that it was a circumstantial case, but a strong circumstantial case, regardless, neither is a basis to reverse based on the deliberate instructions here. And I don't know if this court has any additional questions regarding the courts giving of that instruction. Mr. Cunie also raised very briefly during his time question regarding the sufficiency of the evidence. I'm happy to address that. It's a government's position that viewing the light and most favorable to the government as well as the evidence, and all reasonable inferences that the evidence establishes more than sufficient evidence to support the convictions of the defendant in this case. Can you go through that? I mean, it's not your right that many of these cases are determined through circumstantial evidence, but a lot of times someone's caught red handed with the drugs. In this case, this is not a red handed sort of case. And there's at least an argument that's made that I had a brief case. Someone told me to bring the brief case to him and I had no idea what was inside of it. So what was there to establish that he knew what was inside the brief case? Yes, Your Honor. I would really break it down into three major categories. The first would be both the volume and the timing of the communications between the friend, Edgecom, and Morley. The volume isn't significant. I mean, I know you make that claim, and it may match up nicely with some of our other case law. But as I read it, it's only with a day of like 14 calls. I think 28 or 30 in the course of a really a month. That's not a lot, is it? I would agree with that, Your Honor. And I would say, and I guess speaking of the actual day of the drug deal itself, September 28, 2021, a dozen calls, I think the majority, I agree with something like 15. I believe it does, and of them are so were answered. The majority of them, I think, were somewhere between six o'clock going all the way through to the point in time when Morley arrived at the Home Depot parking lot. So given that Morley's defense, in this case, was at he was merely dropping off a backpack, which by the way, there was really no evidence presented a trial at all other than your argument by Council last to that. 12 calls is a lot over a two hour period. I, the government would argue, a significant number of calls, just for something as simple as dropping off a bag as opposed to what the government ultimately proved in this case, which is that there was a drug deal. But I think more so than the volume, your Honor, is the timing of the particular calls. Specifically, that the calls between or text messages between Morley and Edgecom, coincided with basically every significant event in this investigation, starting all the way back on August 3rd of 2021 when Edgecom sent a text message to Morley, saying, I want you to ride with me to do something, make yourself available. Then there was a drug deal on August 6, then while Morley never went to that particular drug deal, there was an unidentified female who accompanied him instead on that very date, Edgecom sent Morley a text message with the address of the Bass Pro Shop with the drug deal takes place in common sense, which is part of the analysis dictates in an individual whose dealing with drugs is not going to send a location of a drug deal to someone not involved. Fast forward to the next day that a drug deal was supposed to take place in this case, which was September 22nd of 2021, ultimately a deal didn't take place, but there were a series of calls and the timing of these calls are particularly important. They started around 10 in the morning. The first call was a call from Edgecom to the source where he told him that basically the deal wasn't going to happen. That, I think he said something to the effect of things are not in place and mentioned about reaching out to a specific person that I believe ultimately the source testified at trial was the person with the drugs. After that call within minutes, Edgecom then called the defendant. There were two phone calls. After those two phone calls, a minute after the second phone call. Edgecom then called the source again to suggest meeting up with the person also stated that it was somebody that he was going to have to meet with himself and lo and behold, within an hour of that conversation is when law enforcement observed the defendant morally and Edgecom together. So based on that evidence alone, a reasonable inference can be made that the individual that was being discussed, the other individual who had access to the drugs was in fact morally. So those are just the communications before the drug deal take place. Then there's the actual data that deal on September 28, 2021 when Edgecom meets with the source. Edgecom tells them that someone's coming with the drugs. There was testimony from one of the officers that when Morley's car came on the scene that it was circling around, trolling around, which is consistent with counter surveillance. Another factor this court takes in the consideration in determining the efficiency of the evidence. So that is just one factor alone, which are the nature or extent and timing of the communications. The second big thing, probably, the primary piece of evidence the government would rely on is the fact that the defendant in the middle of the night drove to a remote location a Home Depot parking lot in his own car with $84,000 worth of cocaine in the front passengers. It's really the middle of the night. It was in my eight or nine o'clock. That's true, but I suppose it's not in the end. That's like lunch time. It's a Home Depot shopping center in the middle of Broward County. I mean, that's a good point, Your Honor. I think that's true. We're not talking with the middle of the Everglades at midnight. It's not Talahashi. That's being, that's, it is not Talahashi. No, certainly not Your Honor. That being said, I think it was a remote part of the Home Depot parking lot. In addition to that, it was actually on two minutes notice of having been texted, the address of the Home Depot by Edgecom. So he was basically ready to go, is the inference from those facts. And I think merely the fact that he drove there with the drugs in his car, in and of itself, putting aside the communications in the conduct of the defendant at the scene, driving the drugs in his car alone under this case, Quartz case, United States versus Quilca Carpio, is sufficient evidence to prove his knowing and willful entry into the conspiracy. So more so, even than Quilca Carpio case, we have the communications. We have him driving the drugs to the scene under the Prudence Muggler doctrine. He's not going to be entrusted with $84,000 worth the drugs unless he's involved. So that would apply. And then of course, there's the Mr. Morley's conduct once he parked at the Home Depot, which is he got out of the car. He quickly walked away, walked across the street, didn't acknowledge his friend who he was there to see, walked to the Wendy's across the street where there was plenty of testimony from the officers that there were plenty of parking spots at that location. He could have parked there. The Wendy's was closed, but the drive through his opening never went to the drive through. He just paced around there for three to five minutes or so. All conduct that is not consistent with someone who's merely present at the scene, but putting it all together, someone who actually is involved. So that would be the evidence that the government would be relying on. With respect to sufficiency, unless this court headed has any additional questions on that. I see I have two and a half minutes left. I don't know if you're on us. I don't want to. Well, I think we have your argument, Mr. Durkin. Thank you very much, John. Thank you. And Mr. Nene, you've reserved some time for a battle. Your honours with regard to the evidentiary insufficiency. We cite the two cases of USB Stanley and USBs versus Lewis significant, although the facts are all individualized where the presence of the suspect package without any connection to the defendant was not sufficient to establish knowledge that the package is contained cocaine. Nothing suspicious, evidenced in the trial about how that briefcase came to be in the car, evidence that Mr. Morley and Edgecomb were friends in legitimate purposes had been together in the short time that Edgecomb was in the United States in Fort Lauderdale had visited automotive locations, exactly what Mr. Morley did. And the day of the incident, 830 at night, Mr. Morley dressed in his mechanic clothes. There were 14 minutes of phone calls, only about eight seconds involved actual communications. Mr. Morley drove to the location to drop off the briefcase and meet his friend for a meal. And if he was, the eating at the best pro shop a month earlier, you're on or no evidence to that effect, although. There is evidence from the WhatsApp chats that are encrypted that have to be unencrypted where he was sent the location of the first drop. Why get sent the location of the first drop and the location of the second drop? Can the jury infer at that point that he goes to the drops or he is involved in the drops? Without any evidence and there was evidence from the surveillance, nobody saw nobody. No one, there's no indication that he was actually there. But a drug dealer who's involved in significant amounts of drugs is sending him the location of two different drug drops in the course of a month. And there's text messages indicating that there is a guy who is the supplier or the holder of the drugs. How can a jury not infer from that that your client, who's the one who showed up with the drugs, is the guy? And that's exactly why using a deliberate ignorance and structure here allowed the jury to elevate what is a confluence of innocent events. Remember, Mr. Edgecomb said in response to questioning by the police, this guy's a dupe. Had no idea what was going on and in the first instance, the deliverer was also duped, not part of the conspiracy. Indicative of the fact that here, Mr. Edgecomb was calculating the crafty and brought in, Mr. Morley, without any knowledge or intent to get involved into drug deal. For those reasons, we ask for a reversal and vacation. Thank you, judges. Thank you, Council. And Mr. Kuni, I see that you were appointed by the court to represent Mr. Morley and the court, thanks you for your service.

Next, we have two cases consolidated for argument numbers 23-2535 and 23-2573. Pass in against full theory and ignore against Papa John's. Struggle. May please the court. James and that's all for the appellants. Both cases and may I reserve five minutes for what I want to write it? So when a company comes into Pennsylvania intentionally and violates the rights of Pennsylvania's here, Pennsylvania courts have jurisdiction to hear the claims about those violations occurring within the borders of the Commonwealth. These two defendants both came here intentionally. Systematic continuous conduct within the forum. And the claims here are only about what they did here, wiretap. They sent devices onto the computers of Pennsylvania's. From there, they intercepted the Pennsylvania's communications. I don't want to divert the discussion here, which really gets into a barracks discussion. When we're talking about its jurisdiction, the interested in some point to really understand how what occurred here was wiretaping as I understood that. And in an earlier part of my life, it was very familiar with Pennsylvania's act. Because I used it for criminal prosecution purposes, putting that aside. That was an older piece of technology. I am admittedly adedicated. What I can use for the help that I can get. I think understanding just how the session replay code that is. Front center in this case, actually operate. Sure, so our plan of sir website visitors. So there's two websites that issue. Papa Jones website and mattress firms website. So those plan is intended to be on those websites and communicate with those websites in various ways. And any time you're on a computer, there's basically two ways you can communicate. You can move your mouse and click stuff where you can type things in. So the way this software work is once you log on to a site or you, you know, you call up a site. That cycle send a piece of code onto your browser. So if it's Google Chrome, internet explorer, Firefox and those things. It then instructs your browser that any time you start moving your mouse, clicking anything, type any letter. A copy that gets sent to a third party. And the copy is the replay aspect of this. So we've got to replay what the person has seen on his screen. Right. He has, he has used his cursor to go through the website. Yeah. So the purpose of the code is to allow an eventual replay of the session, the visit to the webpage. So what's done is literally in microseconds. If they're calling event data, so you're doing something that's an event. If it's a mouse movement, it's literally will track the coordinates on your screen. And it's sending those instantaneously to the third party. So can we put just, but a lot's already happened better in terms of the tech. So you say that whenever a party goes to websites, these, the plaintiffs in this case, for clients, we're in Pennsylvania. We can know where this website in the ether was. We know what server it was on. Do we know was it in Pennsylvania? We don't pay an allegation to that right. You know, we don't have to spend an opportunity. It could have been a West Virginia because then somewhere else. Yeah. The servers that. The hosts the website, that could be anywhere. They could be distributed among a whole bunch of different servers. But this port is already addressed this particular aspect of where the interception is happening with this. It's happening with similar technology in the, quote, would be Harriet Carter case. And sorry, I don't want to go ahead. Oh, maybe I'll leave you to find this one. Other questions. This interface, you said it happens in my close seconds, but doesn't it also happen in stages in my cross seconds? Maybe there's one packet that goes back and it lets whole story know that the person clicking on this might be based in Pennsylvania. Is that happen early? Did they get that information? It's a discrete period of time so that they know a hot. Every other packet we get is from a person in Pennsylvania or is this, Is it just lumped together as far as the information just so in and on once? Yeah, the interception is continuous during the visit, but in any website visit, there will also be a communication of things like an IP address. The URL header, which is the address of the page that you're building, all that is also collected by the session replay code. And if it's the URL, for instance, it would be sent to full story as soon as you land on that URL. So I guess my question is, you know, some of this comes down to call their and call their part for anything. And do you think actually it is a great. It's very easy to resolve this case under forward motor and key. There's two main five. That was my first question was are you arguing and. Let's start with the basics. This is a specific jurisdiction. I'm not a general jurisdiction. Okay. And is your argument that we could find personal jurisdiction here, purely on purposeful availment under forward motor without. A finding of express. Yes, because they aren't doing this intentionally. They know they're doing it. They could voluntarily extract themselves from the situation if they wanted to. And the claim arises out of what they know and we did. All right, those are those are all facts that you've cited to. That might indicate why it would be just for us to do that. I have a threshold question. How do we get around our presence? Well, I think the press. I haven't have an. I have an unprecedented make clear that the caller effects test has to apply. No, even in had to be Facebook, which I believe both judge fits in judge Hartman. You were on those pant that panel. You went straight into forward motor. And that was a misappropriation. Mr. Dysdut court was flat out wrong when he stated that. The traditional test. Have lined in no corner. The words of the district board were really doesn't apply. He was wrong. Yes. And Keaton is as another example. Just because it's an intentional toward doesn't mean you only use the. The older analysis, the caller test is an optional way to analyze the defense context with the form. Particularly, particularly when the defendant is not actually operating. So, the older does not become the operative test when we're talking about or confronted with the potential. It can be. It all depends. So I think the way to this being older. Yeah, it is a real helpful response. It really, it really does solve the pens. Sounds like it all depends if it's when the case. Yeah. Well, and then actually from the plane perspective. Yes. The the caller test is useful when the defendant is not purposefully bailing itself in the form in a regular way. And the key is the there's a bunch of tests as a bunch of ways you can get personal address. And just one of them with the impact or section we don't all so say you can't avail yourself of personal address. The first thing that you can do is you can do these other things. So what you're saying is that caller is a test. It's available in the circumstances where there's an allegation of a potential toward tag jurisdiction is is is is a way to get jurisdiction. It's available in someone's in the district. Yeah, it's what you're saying is we've got a broad test. We've got some species. The fact that there's a subspecies doesn't mean that the broad test will pass on the line. That's exactly right. Exactly. Exactly. And just following forward and key, it's very simple. Are they here on purpose? Do they know they're here? And is the claim about what they do here? That said, it's very simple. And caller, you'll see. So what are the minimum context? So because if you want to say forward or call their. Are the minimum context that they have it seems they're different. It seems that they've got much stronger keys for Papa donans. And you do for. For story until Papa John's has some degree of record order. People are coming here to order pizza for delivery in Pennsylvania. But just start with full story. What would it say minimum context today? I I contend that they're equally strong context because full story is literally tapping the market for that data and. That's part of what I hope we would get into before we got to. I heard when I asked you at the outset to explain how those firms. I had hoped that your explanation would continue into just what full story does. Yes, so they happen is when this information this data, each is full story and how does it reach full story. So the code itself that's operating on the person's browser in Pennsylvania. And tells the browser to then these packets of data to full story servers. Once they're there full story uses its proprietary, you know, dressing up product to sell it back to Papa John's or a matchers firm. So they can see exactly how people are using the website. So they are profiting off of showing these website operators. What pensive needs are doing beyond what the website operator normally even be able to see. So, so the value added is that Papa John's pay full story for information like this person doesn't seem to be paying any attention to pieces, but is interested in cows on us. Mm-hmm. That's a good choice actually. So, but I don't know Papa John sells cows on us, but is that. The bad point is the point is it's giving the client the client discrete information about the browsing habits of the customer or the puted of customer. Yes, and they are may you said it's enough to be a puted customer. It doesn't even matter whether actually I think each is purchased. They're most interested in the people that don't go through and finish a sale because the the operator doesn't know how they'd enclosed the deal. And so this product gives them that insight. So full story is contact. But how is this thing different? I mean, this is just electronic communications houses any different than if full story makes a call doesn't any contact if all would constantly make a call. They say, hi, you know, why didn't water pits from Papa John's they get that info and then they send that back to Papa John's you could say, what what minimum contact did full story. And so we have we're doing that that is a call that's a contact that is a contact and and it that's far back as follows. Yeah, it's far back to Burger King the Supreme Court recognize this is I think 84 that with emerging technology companies can do business and tap into a market and a form without having like little boots on the ground. And we've had 30 years of cases that analyze websites telephone calls TCPA cases always involve that type of thing a call into the why. Sometimes we say it isn't up but in this case is in this case, both these defendants are very systematically and purposefully. That's the difference. There's an opportunity. I thought you said we don't know where the servers are they're purposely nowhere. Doesn't it matter that their passes Ford motor opinion emphasized pretty just as Kagan's opinion for the court emphasized pretty heavily that Ford motor was selling cars in Montana and Minnesota was advertising there was doing repair work there et cetera et cetera. You know it sounds like you're saying that that for internet companies it doesn't matter the passivity of the internet company doesn't matter. Well, the point of departure here is passivity this is actively wiretap and intense well that's that's a big difference. So they're reach into the form well they're I think it's clear they're active maybe you're front on the other side will disagree with me, but I think it's clear that they're actively gathering data but the only way they begin together the data is if people like your clients go to them. And that's that's why you were passivity they're they're sitting there in ether and people are going to them and if we rule in your favor doesn't it mean that any internet company is amenable to specific jurisdiction in all 50 states. If only if they're receptive they want to do that Walmart stores are passively sitting there waiting for people to walk and make a purchase so the fact that the planet might have stepped in first. That's not an important factor and that's the error the district court made it attributed all of these contacts to the plain of zone choices. I think the better question is would the defendant still be doing this instead we wiretapping in Pennsylvania if not for these two specific things. Did you actually answer. Judge Harderman's question I think I answered by saying. I wanted this question was well then are they are we looking at personal journalism or 50 states no they can they can restrain their act their wiretapping they don't have to do this and I say they chose to do this. But at any point time so I guess to me your case gets a lot stronger if you could say. Full story. I think it's code would be used by Pennsylvania they knew that as soon as soon as one of their clients was on their website. The they knew through some degree of packet of information that they were interfacing with a person from Pennsylvania much like we call you might go from the area of exactly where you planned it. If they know that. As stronger because you say you aren't just dealing with any internet. You know what's one that actually interfades and an extra thing they can from Pennsylvania. But unless they knew that then it feels like the question to my colleague really really get you a big deal. We allegedly didn't know that. And we alleged that one thing that full story offers to its clients is the ability to filter the session visits by people came from Pennsylvania they advertise and market that to a high degree of accuracy to the counting level they can show where people coming from those allegations are all. But I think that's that I'm happy to. Continue words that down come back for a moment. All right thank you Mr. Edsel. Mr. Mose here. Good morning your honors may have pleased court Mark Mose on behalf of the appellies I'd like to start by addressing this standard in the interplay between. And then I want to make sure I spend some time talking about the night circuits decision and risking which I think results all of the issues presented here and I do see how. The court could reverse any either decision here without creating a certain split with risk and but we start with the call. The first is traditional test and but I am. And in remic this court said that it applies the call their effects test to interest rates said yeah but we didn't say. But in half what you're supposed to. And it's not clear that it happened when argued that what was an issue there weren't intentional towards and what the court said and remic it recognized that they're not intentional courts at issue apply the traditional test. I think ultimately we win under both tests and why there's such a fight of this difference between colder and the purposeful of element tests is that they're pushing for an extremely broad reading of forward. And that reading of forward is not relevant or available to them under colder is what colder says is that the relevant contacts for purposes of establishing personal jurisdiction over an intentional toward is a torches conduct. And what they're trying to do is to bring in brick and mortar stores contracts with companies that they say are relevant under forward. And we relevant under colder but we think even if you look at for especially if you look at this court's application of for it. If you look at the course application of both have and forward in Martinez if you look at the night circuits application of forward in. And brisk in the fifth circuit in Johnson versus having to post all of this court recognize that the arising out of and relating to part of the traditional test still is meaningful limitation. And half the court said you're still required a strong connection and what the courts have looked at is the nature of the claim the plane is asserting the nature of the injury that the plane is is alleging and does the contact that the plane of his relying on. Is that related to that injury and so do you think there is contact there are minimum contacts in these cases with Pennsylvania. So, there's a very good to that triangle balancing right. Yeah, you know one way is just saying there's no vertex there. There are a lot of contacts floating around we have the one and the argument that they rely on. But then you push purpose the websites purposely reach into the state to extract data on that we say there's no express aiming that is not a relative contact for a brick and mortar store. That would be purposeful development and sure if there's a slip and fall plane or if there's an actual argument about something was wrong with pizza. That's a very different case so for those like a brick and mortar contact there the argument is it's not related to in there and look some lot like that. The problem is called our problems free express aiming to prove or establish minimum contacts. We're using under particular part three what it says is the torches conduct has to be expressly. So the things like the brick and mortar store is not part of the port is conduct the torches conduct is the delivery of the code into the form and for that we're saying there's no express aiming. So undercalled or the only potential there's an expression. Could we say that. No, you're clients know that the people in all 50 states are like visit the website. Right. Okay, and that the data's going to be grabbed right so it it seems naive to suggest that your clients would be surprised that people in Pennsylvania would be. Subjecting themselves to the session replay code you can see that we're not challenging that that separate the knowledge is a separate aspect of. The colder it has to be. So if you can't see the come down to whether somebody is active or passive if if you make yourself available for people in all 50 states to come. The argument is that that's doesn't subject when to personal jurisdiction specific personal. But if you actively go there like forward motor then you are subject and what the courts have you normally said is when the potential the relevant contact we're looking at is publishing of a website and making a website generally accessible. That alone is not enough to establish either purposeful direction for full of element express aiming of every of all 50 states. Okay, but there are units a little better than they're not just saying you can come to our website and we're passive and we're sitting here there are a given is that once they get you to come. Coming back and they return the favor by gathering all the data in Pennsylvania. Are they worrying about that? They are wrong about it. That's precisely the argument that was rejected is it's a year argument. Yes, we're gathering the data but we're not gathering it in Pennsylvania we're gathering it wherever in the world the servers might be located. The primary argument for purposes of purposeful for personal jurisdiction both expressing aiming and purposeful of element that the contact is in Pennsylvania because of the actions of the plaintiff because of the plaintiff. I agree. I agree that plaintiff's initiated so it's the plaintiff's quote false that all this happens but. We're talking about the response and there is a response is your argument that there's no response. I'm mistaken about that or is your argument there is a response but there's response isn't in Pennsylvania it's in the ether wherever the servers are located. Our response is that for purposes of purpose for personal jurisdiction. It is not enough to respond to a request from the forum that the defendant has to initiate the contact with the forum that was clearly relevant and well then go back. I'm sorry to jump in but I'm sorry. This is so granular for me anyway. It sounds like you're saying that purposeful of element has to be initiated and it can't be a response and I'm not sure I agree with that if that's your argument. Can't one can't one a vendor here full story, Papa John's can't a vendor purposely purposefully avail itself of a jurisdiction by responding to what somebody else does. In some context for the courts it would normally held that it won't apply that analysis to website and to a visit to a website because. This is really just a visit to a website because it's an extraction of the information on the website. In those cases, at least for my perspective don't love extraction. Just above high I was there I made clicks not we recorded all of it. You know, thanks for coming we recorded all of it we sent it off out of state and you can't touch us unless you come to our state to get us. So we're risking squarely resolve that in what judge Breast said he started and looked at the general website cases and the uniform body of cases it says there's not personal jurisdiction in all 50 states just because you visit a website on what judge Breast said. You recognize this is sort of a novel situation because there was Shopify that had their code embedded on the website to extract and collect data there there were privacy claims saying I knew I was on the website but I didn't know that on the back in Shopify had its code embedded and was collecting all my personal information and what judge. Breast in the night circuit concluded there is the same framework applies and there's no meaningful difference between. Challenging the visit to the website and challenging third party code embedded on the website a lot of the same considerations are at play if you held otherwise it would mean that by publishing on to the internet a back in depressing platform. You would subject yourself to jurisdiction in all 50 states it's also just recognizes the reality of the the allegation is and is correct this just. JavaScript code embedded in the website there's no real meaningful difference between the code that runs the website and the code runs the collects data for session replay it's all put in the same file that sits on the server somewhere and waits there until somebody. on the way to the file and serves to strengthen. Why is that functional line of meaningful division? Because it's received in the same way, in the same request, it is all one request. It is received. It doesn't end up in the same space though, right? I mean, some of the data goes to full story. Some of the data is fully recorded. Some of the data is in the data. So it doesn't, doesn't that. I mean, personal jurisdiction really moves it function. Why is that functional difference really critical? It looks at the function of what it is and it is doing to reach into the form and whether or not they're doing. And both the website itself and its entirety, the website itself and the session replay code, sent to the browser only in response to a single request to visit a website. And that's why, I think the ninth circuit was correct to say, if we don't treat differently the back end code from the rest of the website. You still could establish expressing, or code if you showed something, what the courts have said, you need something more, right? Something more than just being generally accessible in every state. What would, what would this something more be? If code was designed to only collect data from people in Pennsylvania, that would be. What if, what if the code told the data collector very early on that this data is coming from her person in a county in Pennsylvania? And then it continued to collect data after that. Would that be good enough? No, it's obviously relevant, but it's not dispositive. That both the test from Calder and Walden makes clear just the fact that you know the residents of the defendant, know that you may cause hot or pleasant income. A lot closer to express meaning into the form state when you know that the person's in the form state and then you continue to want the data and to record the data of the person in the form state, that's a lot closer to express meaning because it's not just, we started out in the ether, come what may. Okay, we got the IP address. We, we know the county that's in. And we're gonna keep it up. It'll be a lot like you're aiming, if that's not aiming, then they make they should charge for their product. No, it's not that they can matter. No, I mean, it's certainly relevant to the court of the court. And then, of course, it's not dispositive. And, and stopping that line in a large way would effectively overrule the general principle that by putting a website onto the internet, you're not purposefully availing yourself of every jurisdiction. Does any website of any size and your hope if you put a website on the internet, you want people from off your empty state to come there. If it's a large business, you're gonna know you're gonna get visitors from off of the empty states. And so the question is, is the website targeted or designed? And you know, what the key is a set? Is there something about the website that is targeted differently to a particular forum than every rare else? And when some website's happening? So, so, I mean, again, is there's a website in the particular piece of code? If the website doesn't have the code that commits the intentional tour, then everything you say seems to make sense. But once you put the code on, and once you say we move the app where you are, and now we're going to allegedly that's just an allegation of this point. By the late Pennsylvania statute, don't we at least have some notion of aiming? I mean, the website is code, right? It's I guess it would've got to push back on that. The website is nothing, it requires the same sort of code that performed different functions. Right, and it's all in the stage five side. Change, if you change what code is on there and you can change, you know, and how much data you want to give the website and how much data they want to use to. Right, but I think we take the night to start at had a right when it said, you have a file sitting on a server that has a lot of code, right? And that code is used to generate the website. If the person using their phone or computer goes through a browser types in the web address, which makes a request for all of the code to run the website, and that sent to their phone. It's clear that all of the code that is used to generate the website, there has not been expressed aiming or purposeful direction. And what the night circuit said, and we agree with this, like there's no basis, the law to treat the lines of code for the session replay code differently as to whether or not that code constitutes purposeful development or express aiming by the defendant. What would it be purposeful of element if the session replay code followed up with all clickers, who they thought or prospects to spend more than $100 with the vendor? Followed up. That isn't like sitting in email. Followed up by sitting in email to the clicker. That would be a much closer case. And no, no, no, no, no, no, no, no, no, no, no, I don't have a clear answer. It is a lot of times, they'll say, like, one particular phone call I went particularly, email may not be enough to avail yourself. But certainly, certainly, there's numerous that could give rise to purposeful of element. But that's would be a different contact, right? Like the contact wouldn't be based on a visit to the website. It would be, we would get into the cases whether phone calls, maybe they were email sent, and at what point is it, or is it a sufficient contact to give rise to personal jurisdiction? But then, we'd also then have to get in, especially here, and I want to come back to a lot of that is the relatedness test, right? They're playing, it's so focused on the visit to the website, and that's why they're good. Well, I'm not sure that's given you them enough credit. They're focused on what happened during the visit to the website. And they're saying that's where the activities occur. And that's where the meeting for activities occur, and the full story is, has the business model? Right. Yeah. No, that's, and that is the entirety of the claim. And so I guess I was making the point of when they start talking about brick and mortar sales contract. Oh, yeah. I mean, I think the pieces, sales of irrelevant, because nobody's claiming that they got sick by eating a pizza, but they are claiming that their privacy rights were violated contrary to Pennsylvania law by the data scraping that occurred. Right. And what we say is that the reason that any of the code came onto their browser is because they reached out and requested it by visiting the website. Well, that gets me back what I was harranging you about before, that it sounded like you're saying that because he started it, we can't be subject to jurisdiction there. And I'm not sure that's true because while the plaintiffs here put things in motion by going to these web, the mattress firm and Papa John's websites, the session replay responded. And what I'm trying to understand is, what we're all trying to understand is, what's the nature of that response? What are the details of that response? What does that response have to do with Pennsylvania? And I assume your argument isn't, well, it's got a lot to do with Pennsylvania, but forget it because they started it. No, and at the point I'm trying to make is all of the cases that say a website is not subject to jurisdiction in all 50 states based on the plaintiff visiting the website. That same concern could have been present there because in every one of those instances, when the plaintiff visits the website, the website, operator responds by sending the information into the forum, what the courts of uniform league held as treat that as under Walden. And that line of cases of saying that is the conduct of the plaintiff that initiated that contact. At least, you reference the Spotify decision from a nice person. It recognized the federal lines, but this I understood the main line that it was wrong there was it said, okay, website, present a bunch of problems for us in terms of personal jurisdiction. One of the key axes that we're looking at is does the website have a forum specific focus, I think that might be a forum specific focus. If it does, then we're pre-part down the line, at least for its press for our intentional core purposes of having personal jurisdiction. Let me just ask if there's any part of false stories code that has a forum specific focus for targeting Pennsylvania. I know I do not, and there's none alleged here. I think if anything, they alleged that the code operates the same way for every, anywhere regardless of where they're visiting from. And so it initially does. And then it finds out that you are from Pennsylvania. And then after that, it applies late code to notice your clicks in in tights. Once it finds out that you are from Pennsylvania, and continues to run the remainder of its code, are you saying that that's not expressed aiming in that code isn't expressing me because if you would have clicked and said you're from Ohio, you would have run that same code. And therefore the fact that you know along the way that is now Pennsylvania means nothing. It's not that it means nothing. It means there's separate elements. And it is clear we think from the case law that the knowledge of where a plaintiff is located is not by itself sufficient to establish, accept, assaining. And so the answer is yes, that still no expressing, meaning if they learn where the person is located, because there's no allegation that the code operate any differently based on that information and based on where they're located. If I could say one more thing with your mention of risk and they are, if anything, the fact said a closer connection to California because the website with the Shopify code embedded it, it was clear that was a California merchant. You got a California user visiting a California website making a purchase in California. Still no personal jurisdiction over the back end processor because the back end processor had not done anything to avail itself of California. That's true even though it had 80,000 customers in California. It had brick and mortar operations. It had a distribution center. None of those were relevant under Ford and nothing about its code differentiated between California and every other state in the country. So when you say nothing about its code, sometimes they make a website purchase. It will add like sales or just packs or something like this that might be very based on state. I assume that that variation is part of the code. Yes, but that if it's the same in every state and the Ford circuit and the Fendered Schverse's Mary Yacht gates got a dress to similar argument in there for you could, there was a drop down box, you could choose your state and when you chose your state, you saw the Mary Yacht hotels in the state. They said that wasn't good enough to establish personal jurisdiction because again, it worked the same way for all 50 states. It wasn't targeted at South Carolina. Any differently than it was California just based on your choice of which state to pick. I see my time is up. Where could and should these cases have been luck? Both of these defendants are subject to jurisdiction and Delaware and either plain of it you have to leave this circuit to bring these cases. There are no other questions. Okay, thank you, Mr. Moser. Let's hear Mr. Edcil's report. Thank you. There's a danger in over relying on the express aiming problem of call. Well, let me jump in there on that. You really resisted the application of the call or effects test. I assume because you're going to lose if we apply. This is actually just about to address why I resist it. Okay. You cannot take the words expressed aiming to me a national defendant that is purposely in every state can't be called into those states for what it's doing there because it's not definitely targeting one state over the other and that's their argument. They're saying we do this all over the country. So we're not doing in Pennsylvania, but that doesn't make any sense. This case about wire tapping in Pennsylvania. Making yourself available to customers on the internet than all 50 states isn't the same as expressly aiming at all 50 states, isn't? Well, they're not just making themselves available. We're our claims here about wire tapping in Pennsylvania. Not just the data and approach data, approach your current. You're applying to approach that. And the pledge, that's why you were available. Well, yeah, before didn't sell the cars to the plaintiffs in the four-moner case, they sold another people the cars made their way to the states later. Correct, but the opinion of Justice Cagan says that the cars were maintained there, the cars were sold there, not those particular cars. But Ford was doing a tremendous amount of proactive selling and repairing in the subject states. Right, and it was doing that same thing in every other state in the union. And so that's the danger with callers. If you overrely on this notion of express aiming, then you lose sight. Well, but the accident occurred in Minnesota, Montana. I guess your argument is well, the wire tapping. The crime occurred in Pennsylvania. Yes, exactly. And that's why you have to be careful with caller. There's two other cases that my friend mentioned, Walden, Walden is sort of the source of some of these problems because they say, well, the residents of the plaintiff can't be an important fact. That case is about an incident that happened in Georgia. Somebody's money was taken from the airport by a police officer. They tried to sue the police officer in Nevada. So that case is not about what the defendant did in the form. That defendant never purposely avail itself of Nevada in any way, totally different situations. Did you make the same claims you've made in the case in Sue and Delaware? I think it would be only me proper if we had a plaintiff who suffered the injury in Delaware and sued about what happened in Delaware. That would be the best way to do it because the case is about what happened here in Pennsylvania. It would be limited here to a claim about West Coast statute. Only as they violated it as Pennsylvania. So this is the most natural place for this case to be. It's about what they did voluntarily. They knew they were doing it. And that checks all the boxes. If you go back to Ford, you go to Keaton, you go to any of the Supreme Court's big cases. They're looking at the defendant know it was doing it in the form. Could it have extracted itself in that situation if it wanted to? And that's it. That's it. It's the claim about what happened in the form. And it is. But Delaware resident who gets on her laptop and you fill it alphia, she could sue and death. Right? Well, not under specific jurisdiction. I don't think so. I know because that wire tabming occurred in Pennsylvania. So you need the three legs. You need the plaintiff, the defendant, and the claim to all come together in the form. We have that here. We have the plaintiff, at home in Pennsylvania. We have the defendant purposely doing business here. And then we have the claim, the wire tabming. Here, that's all three prompts. And they all unite in the form. And what was the conduct that was expressly aimed by full story and puppy John's? The wires happening that they plan to do to get this data from Pennsylvania. And they say that was aimed everywhere. So so we're tying us is everywhere. Aiming can be a form specific folks. Everywhere aiming on purpose means you have chosen to go into those markets. You've chosen to avail yourself of those forms. And you might be right about that. But doesn't that mean that online companies are subject to specific personal jurisdiction all 50 states? Only if they are actively doing something to the plaintiff, the way that these descendants were. Not just by having a billboard type. Well, but by your theory, though, the code is actively doing something. Yeah, you're saying the code is a device. But we have, yes. Exactly. Well, then, put Mr. Moser explained that the entire website is code. So what's the difference between putting up a website and scraping data? The level of interactivity is relevant. We have the Zipotest developed and the web. Does it just go to liability, though, in a clear section? No, that's about the know. Zipot is all about analyzing how a website and contacts with a form can be used to establish specific personal jurisdiction. There's been, like I said, 30 years of cases, where they look at how does the website interact with the form? How interact if is it? This is if the most extreme end of hyperinoreactivity. Because the claim is literally about what the website code does to people on their computers, while they're sitting in the form. We have all the ingredients here. Pennsylvania is the natural form. All right. Thank you, Mr. Edson. We thank both council for the very helpful briefing and arguments. We'll take the matter under advice.

Good morning. Our first case is number 23-2125 United States against Dorsey. Mr. Onan. Thank you, Your Honor. Jason Olmanon's behalf of Mr. President Dorsey. The Court's permission I'd like to reserve three minutes for a moment. Granted. Thank you. We're all familiar with Range versus Attorney General. The government took a range of the Attorney General up to the Supreme Court. And in their papers in the Supreme Court, have accused this Court of creating an unworkable standard and indisernable test in range versus attorney general. I don't think that's true. I think that Range does create a workable discernible standard. And I think that in Mr. Dorsey's case, this is a case to unify under plain air that that range creates a workable discernible standard. That results in Mr. Dorsey's favor of plain air in this case. So let's walk through the Brewing Test in range. And I'll tell you why I get to that conclusion. So we know for Brewing Part 1 of the test, Mr. Dorsey is within the people. This Court crossed that bridge in range. Everyone has included within the people. His 92G1 conviction is determined you correctly analyzed in your concurrence in Binder up. In 1922, you want to fence entirely inviserates the right to carry very carry arms. So therefore that implicates the second amendment. And once we've met the part, I'm sorry, part 1 of the Brewing Test. We're going to move on to prior part 2. And what this Court addressed in range, it was a detailed discussion of the historical analogs that the government presented. Try to be extremely in my April 12th, 20J letter. I carefully picked apart every analog that the government says it presented in this case. And point out, you all have rejected those same analogs in range itself. And also, that you all have already rejected those analogs. So I think we're not breaking you round here, Mr. Dorsey. Paul, as you know, range was was an as a pledge. Correct. Yes, sir. And in order to prevail here, you have to show that Dorsey is similarly situated or like range correct. Well, as far as application of the test, yes, you're honored that the historical analogs in part 2 are not appropriate for 1922, you against a person with one nonviolent felony conviction. But like range. And isn't it true that there are a lot of differences between. And you've already crossed this bridge and been to Rup Mr. Julio Swarres. Well, my opinion, Bindrup doesn't matter. That was a concurrence. I understand that, but the majority also agreed that Mr. Swarres is a prior nonviolent felony conviction or felony equivalent for. The current occurring a firearm without a license that that did not just be a second or more. All right, but so Bindrup and Swarres prevailed and range prevailed. But I was asked you to focus on range. How is Dorsey like range? You identified one way in which he's like range. You said he had a prior nonviolent conviction. Are there other ways he's like range? Yes, you're on or so the historical analogs that they present. Well, the analogs are the statutes. I'm asking you about the facts. Right. How is I'm trying to get to the bottom of how is is Dorsey like range? And how is he dissimilar for the range? I have a lot of points to make it a while. He's dissimilar for the range, but I'm trying to give you an opportunity to tell us. Other reasons why he's like range. So I think he's like range in the fact that he's just got the one nonviolent felony conviction. But it's not the same kind of fashion. It's just a different offense. I'm flutes now. That's that's correct, your honor, but but the reason that I think church bibs that's. Distinction without a difference is because of the way that this case fell out in Bindrup. Formus Derswarres with the prior concealed. I'm sorry with the caring without a license conviction, not being a. Disqualified for Mr. Bindrup, but the minimum. We're here on playing air review. Right. Right. It has to be totally obvious. So you have a different offense. You have. To accept the week here about resenc. I don't know if you think we should care about the resenc of the prior offense. But resenc is different here. More recent in this case. And we have different criminal histories. And so while we're looking at this and we're saying, you know, come ask us to say that it's plain. And we have these differences. Maybe maybe these differences in the end don't matter. But but I can doesn't some level of analysis has to have to occur before just saying now it's just so obviously just skip all of that. Well, I think that whatever level of analysis though is already dictated by this course. Presidents and that's why I say it's plain clear obvious. And when you talk about resenc. We know from Bindrup the majority of opinion in Bindrup. It says that rehabilitation is not a factor in this. I said it I realized Bindrup was. I'm. I recated by by growing but in that analysis in Bindrup. Reacency of the conviction or rehabilitation efforts. Those were not factors. Those were factors that were rejected by the majority of opinion in Bindrup. So I think that those are not factors that should be applied here when you're trying to analyze. If you're a person doing a full historical analog analysis. That's what we're doing. I would have. I would appreciate to move into. I part to honestly when you're talking about historical analysis part. I appreciate this question to be more. Is this a question about growing part one whether Mr. Dorsey falls into brewing part one. Because I think that he clearly does in his conduct clearly does the possession of a firearm. I think that that's what. Like range is so it means is that possession of the firearm is the predicate disqualifying he's within the people. What we're going through playing era review. We're often going through one to just one case. Or in two cases. Are there any other cases to which we can look. Or purposes trying to determine whether the problem is in obvious requirement has been that other than the two other than Berlin and range that you just. And you refer to my number of the I think it's been. Well, see, guest is that it doesn't really help here. Is there any other authority? No. Yes, yes, you're on our under brewing part to the historical analysis test. You you all rejected the exact same. Historic the historical tradition the analogs the government presents in this case. They've already been addressed in range and in brewing. The additional I think thing that I would point the court to is the thorough historical analysis in just the spirits. And then judge spirits just in canter that that was a very thorough historical analysis I think it points up or adds credibility and credibility. It reinforces the corroboration of this court's decision in range on how the heart of who are our clear purposes dictate a clear or indiscutable answer. How does range do that? So one nonviolent felony conviction. The government must point to historical analogs that would just pass someone with that. And the the historical analogs they appointed to were rejected and range. And I'm happy to discuss anything that the court. The spirit with that. It just sounds like you're making a facial change. It sounds like your your logic is that because the government could not come up with historical analogs. To dispossess range. It therefore follows that every other person who is convicted of a nonviolent felony or misdemeanor. Equalment to a felony for punishment purposes. Would also not be able to be disrespected. That he seemed to be making arguments that we've played a hall nonviolent felons that's an across the board analysis not something peculiar to the facts of your claim case. Well. The the first two responses you're out of the first is that of course foreign as a by our. Facial challenge after to prove that the statute is constitutional and every possible application which you have it and you haven't made that or in your brief correct. You see that you're making it now that's what. Oh no, you're your honor, but I think nine twenty two G one applies to violent felons as well as nonviolent talents. That's why I didn't make this as a. Well, but are you are you saying that all nine twenty two G one is unconstitutional as applied to all nonviolent. So you're right, that's that is the principle that is the articulation in range. That's well, I. And go on. I'm confident I remember what range says range has first of all it's an error decision second, while it's as applied. And thirdly it goes in a great detail about Mr. range and in his circumstances and the fact that. That his crime was a long time ago it was on violent. It was a minor fraud conviction. You've got a client who was on parole. Correct. John, the comment was a lot more recent. It was a gang investigation correct. That's what the police were were investigating. That's correct. Mr. Range brought a civil case. Is it the clear to reach judge for anish. This is the criminal case. Correct. That that's correct. So these are these are all differences. And I guess argument is that they're. They're immaterial differences. Is that you're under the historic lane, along the S. And I believe that there are immaterial differences. All right. But to judge specifically, let's assume your correct. Let's assume they are immaterial differences. We're on plain error review. What case or cases tell us that it's that those different. So I think the articulation of the test in range. Which I understand your your point, your honor that that's that's my point is that the articulation of the test. And the articulation of the test in range makes this error plain here. And that the analog they presented are not sufficiently justified by the how and the why under ruin hard to. So, but we really under plan error review. Kind of I understand the exercise. If the district court. One conducting the sentence and where to have the benefit of all of the precedent that we have right now today. Would say, I don't care if there's no objection. I just have to stop everything. We got a huge problem here. And it is outside of of of what this of what this prosecution can be. I'm yeah that that's asking a lot. And so sometimes there is enough presence that we say yes, because reports in that hypothetical should do that. Here it seems to be that you're saying that the range which is shared. Hardment articulated. But many factors would be not for a district court. To say, let's stop this is error. I think that's correct, yes. Blaine obviously. Yes, such such an even without objection. The district judge would have to say. So, the pressure. I thought you're doing it. This is not a crime that is applied to this individual. I have to stop the proceedings and say this. Everything must go out. Based based range. It's it's so unacquivocal. There's a government could stand up and probably have to say. That's right. I got nothing to come back at you with because so plain. You're on a respect for we I do think that that's the case. Yes, one non violent felony conviction. Correct. The government has to work through the historical analogs to justify why that would be a disqualifying predicate for for Mr. Dorsey and the analogs they work through have already been rejected under rainy day. I have to work through those analogs. There's been no objection. Well, defense council. You're off. Because it seems to now we're reading into some sort of burden of production on the government to sell where we want to bring a 922 charge and along with that. Here's our store plan a log evidence. It's almost pream an objection to wood in error. Yes, your honor. That's right because under broom part one. I mean, we know that this defendant is within the people in broom part. I'm sorry. Under broom part one. I know that the defendant's within the people. We know that the 922 G1 conviction invester rates the second amendment right because carry. So that the burden shifts to the government to justify with historical analogs. It's prosecution of this person based on the predicates. That's that's exactly right. I see that my time is up. But I'm happy to answer more questions or sit down. All right. Well, here you are. The bottle. Thank you. Mr. Mr. Mr. The court played a lot of different states. Range set as decision was quote a narrow one that found such a 922 G1 on constitution. Only as applied to Brian range a civil plaintiff with a 25 year old conviction for food stamp fraud. Range does not make it clear or obvious that such a 922 G1 is unconstitutional as applied to dorsi. Given his recent weapons is parole status and his knowing decision to violate the law. So the easiest way to resolve this case is not to try and determine even necessarily whether there was error here. We certainly don't think there was error under range, but I think the easiest way to resolve this is to conclude that there is no clear or obvious error at the very least. Because it's untruth and ground. Exactly your honor. So it's because something's a debatable proposition it necessarily follows that it can't be cleaner. That's correct, runner. So this court hasn't required a decision that's that's all for or or exactly analogous, but what this court has in order for something to be plain error. But it has to be something that's clear or obvious as judge fits was suggesting as something that the district court had it realized what was going on. What of would have concluded that this is just unconstitutional as applied to range. In this case, the sentencing happened the day after the court this court's undone decision in range and the parties have been mentioned range and the district court didn't say we do stop everything. We have a clear or obvious constitutional error and I just don't think that there's any possible way to reach that conclusion based on range because range emphasize that was a narrow decision. This is just a mechanical slash procedural question, but this is the particular case. Just how and when should council have raised the issue. So your honor, I think that the appropriate time to raise the second amendment challenge would have been based on on brewing as people are doing all over the country and it pre-troung motion to dismiss. So well, well prior to rate. That's correct, runner. But even let's assume that you know there was there was not until the on-bomb decision in range that there was a but there was really sort of a problem here. I think it still would have been. I'll be at late to would have still been appropriate for defense council to raise that issue at sentencing and request to withdraw the. Well, you want to answer what happened. Sure, so so under under and I don't have a real in front of me, but under will, 11 if you in order to withdraw a guilty plea. You have to show some sort of reason for the timing of your motion to withdraw the guilty plea, some sort of good cause for it. You know, the argument then would have been more range provided good cause for the the motion to withdraw the guilty plea at sentencing. And you're running your friend across the island, of course, was not council is kind of the plea was centered. That's for a runner, but whatever the case, there's just was no never at any point an objection raise and that's why we're going to review. I don't think there's any dispute that plain areas they appropriate standard. And I correct I I went back and only quickly looked at this, but range actually came down and will file the day before. Mr. Dorsey sentence. That's correct. So if I can't just briefly run over some of the differences between Brian range and Mr. Dorsey because I think whether the court looks solely at the prior convictions, whether the court or whether the court looks at the circumstances defense. There are are many reasons why range doesn't make it clear or obvious that the statute was on constitutional ons flight and the door to the first of all. The undergone convictions here are different so food stamp fraud although we got the time was punished in Pennsylvania by up to five years is less significant offense than the weapons offense the license carrying of a firearm offense under. Second one excuse me, six one of six. The. Is it enough to say that that's a difference or. Amalistically should we characterize on the degree of difference between that offense and what is before is here. Well, you're on I think the degree would matter. So let's say that they were essentially you know two two offenses of equal seriousness equal punishment. Then it would be a much stronger case for the defense to show error and maybe even plain air, but the the statutory maximums are different so the the offense that was it issued here 61.06 and had a seven year. The statutory maximum rather than a five year statutory maximum if you look at the actual sense received Mr. Range received a sense of probation or as Mr. Dorsey received a sentence of six to 23 and a half months. When when you count sort of all the time that he wasn't presented here. She was in prison for about eight months. So this court has never even before range struck down 1922 G1 in the context of someone who received any prison sentence supposed to your probation. When you look at the reading I struggle with that argument though because it sounds like you're suggesting that one second amendment rights. Whether you have them or don't have them will be influenced by how much time a judge gives you an criminal case that you are you know well you're on or that certainly not our not our preferred position. We're here because we were stuck with range at least for the moment it does seem that range found irrelevant that range was sentenced only to probation. So the government's view is that no statutory maximum is enough the government would put that at one year this court obviously disagrees. But whatever the case it does seem significant that the it seems significant in light of rain. Where in the range of opinion was there emphasis placed on the actual sentence range received. And you're on a basis that just a basic reference to the. The skeletal facts of the case. It was your honor I think that's unfortunately all that the range decision gives us is essentially the facts of the case and the court says that it applies to people someone like range so range did not spell out. What factors considered relevant for determining that that 1922 G1 was unconstitutional as applied to that plaintiff. So we're simply pointing to some of those facts again we think that the the best and not great forward way to approach it is to focus solely on the statutory maximum. But to the extended the range found the sentence received relevant. There's a there's a difference here. Well, how does same question I asked before then where you're expected to reach maximum. You're argument is that whether one possesses a right to keep in bear arms. Depends upon what their statutory maximum is in it in a case. Absolutely your honor that that is our position. And okay, so go through us for us. What's the threshold what's the statutory maximum one has a second right keeping bear arms and where one loses. Well, you're on I don't think that's clear in this circuit after range. The government's view is that it's one year so it's not it's not an unusual proposition to say that's pretty maximum is constitutionally relevant. All right, well then now you've now you've just said that the the legislature can always define. The scope of the right. I know you're on I don't think it's true that the legislature can can always define the scope of the right so the as the government is explained to the Supreme Court. For example, in the remaining case, there can be instances in which there is you know sort of judicial review is to whether or not the classifications or categories that the legislature deserves. Our appropriate but I do think there is a high degree of legislative difference and again this is not this is not a ballad consistent with how the Supreme Court has interpreted the grand jury cause in the fifth amendment the petty offensive the definition of petty offenses for purposes of a jury trial. And then the Supreme Court said in the 1996 Lewis. So there I'm not nearly as familiar with with those clauses as I am with with the second amendment. But. As the Supreme Court said that legislatures have free reign to define petty offenses however they want. You know you're on what the what the Supreme Court has said is that for purposes of the jury trial right a petty offense is pegged at something those statutory maximum for which is below six months. And I think the reason that we there's some is there's some historical support for that or is that just something will legislate your came up with is a policy. There's something that legislate your came up with your honor. I go to the Supreme Court did conduct you know an inquiry into history certainly as extensive as it does in the second amendment context when when concluding that the statutory maximum was relevant. And the Supreme Court said in the Lewis the 1996 case not the 1980 case we said in our 20 jl but the one we cite in our brief the court said in Lewis that the maximum authorized penalty for rights and objective indication of the seriousness with which society regards the offense. So I understand that you might have concerns about you know the legislature sort of creating a felony for anything. I think that the law is not like a runaway train if the set scope of the second amendment right can be circumscribed by the legislate considering the fence quote serious. Then why couldn't the legislature circumscribed the first amendment right to speak or to worse or anything else. At the definition of the. The history behind the first amendment that behind the second amendment and so it wouldn't be the one being the program for the legislature to sort of categorize something as sufficiently serious that you could be deprived of your first amendment rights. But it actually sounds like a direct assault on Supreme Court statement that the second amendment is not a second class right. But the Supreme Court has said that it was a long standing I inherited from our English ancestors and it brought with us the soil of that understanding. And when it was incorporated into the constitution and so the Supreme Court was repeatedly said that there are certain categories of the Supreme Court is indicated. For example, the Supreme Court has said that the dangerous and responsible person. Excuse me, non law biding and responsible persons can be disarmed. So that's something that historically was was brought into second amendment, but again, I don't think the court. You know, this this discussion of history. Please me to kind of inquire into one of I think one of the big differences between. Dorsey's case in range cases, which is endorse was on parole at the time. Historically, what we know about parole. You know, we you say, you know, the soil that comes with it from our, from our Anglo American roots and stuff like this. We know now, this is about parole. Is this is something that doesn't matter because it just didn't exist back then or should we make something up this or we're looking to malicious. And stuff like this. What are we doing? Your honor, I think the fact that he was on parole is significant. I think it also that also relates to the resency, which is another important distinction between this case and range. What do you respect? Sure. What if there's look at the you're on our parole was not something that existed at the time of the founding. I mean, there might have been, you know, some sort of some sorts of conditional release, but but it's not something that became common until the 20th century. So I think that the important point is the parole is something that as long as it's existed is considered part of the defendants criminal sentence. And so someone who is on parole who commits any kind of violation and it doesn't have to be particularly serious, although, obviously, parole officer general exercise their discretion. If you if you are intoxicated while on parole, you can be revoked and sent back to prison. You are still subject to that prison sentence for your subject to a form of conditional release. Are you saying it's the same as as what you're arguing two days ago, parole is is. Trowing to some purposes the same as supervisor release. You're on her. I think for purposes of the Constitutional analysis, yes, I would say the parole is perhaps even stronger because supervisor release is sort of a as conceived by Congress is sort of a transitional phase. And when you violate your supervisor release, you're not sent back for the exact same prison the remainder of your exact same prison term, but that's actually what happens in the parole context. You go back to continue serving the prison sentence that you got out of when you got up to prison early is that manner. I in this case, I think I don't think that I mean, I think parole is relevant, but I think this court can easily conclude, but there's no plain air based on a variety of things. So the fact that he was on parole, the fact that dorsy committed is offense very recently the fact that he committed a different offense than Mr. Range, with a more serious statutory maximum. I think for any of the any and all of those reasons this court can conclude that there is no clear or obvious error under range. So so you would have skipped to prompt to and just just resolve this on playing this grant to want us to get into from one and actually find out if there's error. You're on if the court wants to say that there was no error, we would obviously be doing the first. We would like to know exactly if you were letting the opinion of how we do address this. And we simply resolve the. The plan and not be a signature. I would resolve it on prompt to yes, you're on it. That's what this court did in the hall decision that we cited on 28 jail. I letter and that certainly seems like the easiest way to resolve the case. I was going to further questions. I'll give my time and ask the board to. Thank you, Mr. Glasser. Let's hear your bottle from Mr. Allwood. Thank you, I'm just a couple brief points. I hope. So I think I heard a government that the government say today that. Mr. Dorsey would have been so well, even had he raised the objection raised the motion to dismiss. When range came out, I think that's what they said it would be too late. It would be out of time. But I'm wrong about the standard of review. Obviously this court can came correct that. Another thing that I do want to briefly respond to is this. Well, on the timing issue. You knew there was a panel of opinion range. A panel of opinion was issued. Well, before right. Correct. I mean, it's it's common for defense lawyers to make objections. Even when they know the controlling laws is against them because they want to preserve it in case the Supreme Court or the unbound. Sorry for versus correct. That that is a litigation strategy and all of that could have been done here. The binding precedent came out at a point in time that the government can see that would be would be too late. The motion would be denied. If I can move briefly to the historical the differences. Right. It would have just so clear though. Presumably would have been denied by the district court, but it would have been well preserved for review by this court. That's very wrong. That's right. I know it's a fact that the key to not to embrace that you use the word that's that strategy is in strategy certainly to have looked to the president posture. And the fact that this case will eventually be decided and preserve is in preservation strategy and non-preservation not much of the strategy. I don't think I can really get give the help any give the courting guidance or clarity on that. I ask really because your choice of course. I was curious. Mr. Why you used that. I. I may say it's the efficient performance. Is that is is that we're getting it? You're on I don't think I can really speak to any of that. But what I want to point out is that the government appeared to conceive that when range came down with the on block decision came down. It would have been an untimely objection to raise it at that point. If I can move into what the government just about why Mr. Dorsey is dissimilar. One of the things they did point out is parole and why I think that that's not the dissimilarity under the brewing historical analysis is because when you read Judge Barrett's opinion in in canter when you read that dissent. You hear that the on analogs that is court talked about on Tuesday Mr. Morris case those analogs have a mixed history at best. When you read Judge Cantors. I'm sorry, just as Barrett's decision wasn't the role just not this it's not so are you saying that we are all the same. We have except for the fact that range was on the role at the time that you're totally confident that we were to read she exact same or is dog the exact same boat kind of the exact same everything. I think that. That's point. I would be playing. Right. The outcome I think would have been the same because when you look at just the bears dissent in canter I mean pages for. Four fifty nine to four sixty she goes through four for church. She goes through civil death. She says the history is mixed here. The history mixed and we know from brewing footnote 11 that when the history is mixed the government has not carried their burdens to establish this is an appropriate justification to how in the why are not the third fit when the history. The history is mixed so what the district. The district. Judge should have said. I got the right. It might not come things but what I need to do is I need to read a seven circuit opinion by now Supreme Court Justice when I do that it's not finding on it's but when I do that now now the light bulb goes on and now understand that there's there's no. It's plain state. The statement has to go well where where I would say where I agree with you your honor is that it's plain is day that he meets brewing step step part one. And then the burden shifts to the government to prove its historical analogics and justify application of not even one of the defense does a pretty. I think I think that that's correct that goes to the timing issue that I think just to make you appropriately. Got the government to conceive that it would have been an untapped rejection. I see my. Thank you Mr. Armut thank you Mr. Glassher we appreciate your arguments. We'll take the matter under your glass. Thank you.

They're going to be ready. They're going to be short of slow here. They're going to have to do it. I represent Michelle Adams. She's the plaintiff of Helen, the Nismatter, and it's the case is based on age discrimination. First I'd like to point out that there's a very different standard in the federal law of age discrimination as there is in the New York City, you and right law. In the federal law, you have to prove much for a causation in order to prevail on an age discrimination case. But in the New York City, you and right law, it's a much more liberal standard, much more friendly, shall we say, to plaintiffs. You just have to prove that age is a motivating factor. And we have many pieces of evidence here that there's a motivating factor of her age being considered. First of all, she's going to digress a little bit. She's replaced by people 18 to 40 men. But if we don't find a federal, then isn't the appropriate thing with respect to the state to dismiss that with that prejudice. And not decided, if it's a hard question, it's an easy question we can decide it, but if you're making a distinction between what might happen federally and we decide against you federally what we do all the time, is simply dismiss the state case, you know, prejudice and that you're covered, are you and out to the people who know state law better than we do? We originally brought the case in state court, Your Honor, and I've had this exact issue in front of you, in fact, you run the panel and you did exactly what you just said. That's exactly what was done. I think we should prevail on a federal law as well, because I think that they were aware of the fact that she was having problems with Elvira. I can't pronounce her last name. It's something like the Lack of the Cova. Yeah, but this is a suit against the company. And the company fire, both a person whom she was having trouble with, because it said that the remarks, which, okay, were ages enough, so it's a fire at person. Have we furthered your time yet, because she got into a fight with her? Now, why does that support an argument that the company was violating age discrimination at a federal level? I didn't mean to cut you off. That by itself does not, but the fact that they were aware that she was having problems with Elvira and he did nothing to rectify it. In fact, is that what does that have to do with A? What's that? Because that have to do with A? Could the problems with her were based on her age? There were statements made about her being older than her mother. There were several statements made. And there were then petty slides and inconveniences. I know that's a city loss, Dan. Are you attributing those comments to Equinox? I'm saying that Equinox was aware of them and took no action. Who else is to take action about it over employee who's making ages discriminatory remarks, but the company is in the company responsible for the response. Then she complained of a company or did she just about age? Or was she just saying I'm having trouble with this person? Or she certainly complained to the company. And it's indicated in Diaz testimony that they took no corrective action. And there is a question of fact, what does she say to the company? Well, once we have emails to the company on November 29, 2017, that she's being discriminated against, that's earlier than the incident with Elvira. Sorry, she's been, that's earlier than the incident with Elvira. Although, Elvira comes into proxy for months before she gets fired. But they are aware that statements were made in front of a manager, a single, you know, about age. And they did nothing about it. And Diaz, who is a big manager there, says, no corrective action was taken. Now, isn't the company responsible if they leave somebody in place who's discriminating against somebody, who's shooting somebody badly and they failed to act on it? And that's really the argument of the, But this person was in a supervisor. It was a co-worker with considerably less seniority, right? I agree with you 100% that is correct. But the point is that the supervisors knew that this was going on, continued to make her work with Elvira and did nothing to alleviate the situation. As Diaz admits, there was no corrective action taken. And I have that quote in there. Shouldn't the company take action if they know that another employee is creating a hostel work? And but I'm with somebody? I mean, that's really the crux to the matter, at least in the federal court. Okay, so your strongest evidence is the co-workers' comments and then the fact that they replaced your client with somebody younger. Is that, is that it? That's not the entirety, but that's a lot of it. That's a lot of it. I mean, but it's more than that. Again, I don't want to be redundant, but they knew what was happening with Elvira and my client and they took no action. And they, you say they took no action. Are you saying that the failure to act after these two remarks about mother and so on? Is enough to create a hostel environment so that even if no adverse action was taken, your client has a suit? Is it enough so that that is actual discrimination so that your client has a suit against the company? Or are you saying that those things occur? They'd learned or should have known and did something that was at the Versaegean. Because I have trouble finding those things. I have trouble finding anything until this explosion, and which both people were fired. Chuck's supposed to be the fact that they left her interacting with this woman who was acting badly towards her. That's enough to be a hostel worker, vermin. It's certainly supports it. And it certainly explains her reaction to her. When the incident does occur, I think it's March 23rd, 2000. It does explain it. They had separated them. The incident wouldn't have happened. She had no history with them. She had no negative history. And she'd been complaining about age discrimination. She put it in a complaint, I believe November 24th, 2017, not process, had a lawyer at the time. She made it complain about age discrimination. She was making them continually aware that she felt she's been discriminated against. There's a good email on November 29, 2017 about it. I would like to discuss the people replacing her if I may. Now, my adversary, sites Delaney. Delaney is a case that says, well, the fact that a person was replaced alone by itself, by people who much younger, does that necessarily make out of age discrimination case. But haskins, Delaney does mention also that it's alone, if it's the only thing, just replaced by younger people. There's nothing. But haskins, which is the state court case, and discusses New York City, when right was much more of a ciffers about it. And in the haskins, the court discusses the fact that there is an inference of discrimination. Violet of fact that a person is replaced by people younger. And my adversary, I'm sure, was an innocent mistake, but they seem to alleged that only half the people she was training were replaced by younger people. Let's not correct. All the people who were left are eight equinox, who she had trained or 18 were trained in the future by people who were 18 to 40 years younger than her. If you juxtapose this with her complaints or frequent complaints about discrimination, you juxtapose it with the incident, well, Viara, and it keeps an incident, by the way, which I wish I had discussed in more detail, but I did raise it in my brief. From once, if you look at the appendix from my believe it's 167 to 174, you'll see that's a much more serious incident than the defendant. The police make it out to be, she is a believes it's an intentional incident. It's a lot written about it. And they cherry pick a statement, you know, basically like it's accidental. That's not accidental. If you read that part, I see you smiling around. If you read that part of the appendix, I think it's 167 to 174, you'll see that it is there. It's a pretty nasty little situation that she has with her. And again, you do nothing. She's there today, she leaves. She's still there. Now, when she comes to the year over time, would you like to use her a buttle time now or say that? I think I want to hear what Mr. Blumetti has. Okay. Thank you. Let's hear from Mr. Blumetti. Good morning, Your Honor. What's my name is Jared Beonelli here on behalf of the Appellaries? There is not a shred of evidence of any age discrimination on the part of Equinox in this case. That is exactly where a judge Crone came down throughout his decision. He did not find any age related motivation for any of Equinox actions. And frankly, there wasn't any. Equinox hired plaintiff when she was 40 years old. Equinox rehired plaintiff when she was 53 years old. Plainsett's entire 21-year career at Equinox occurred when she was over the age of 40. There was no long-full termination here. Equinox terminated plaintiff's employment because she admittedly threatened and cursed at her co-worker even for her numerous employees. The plaintiff herself characterized her conduct as an outburst that witnesses pulled L. Viro away because they thought that the plaintiff was going to physically attack her. This is unacceptable workplace behavior and Equinox terminated plaintiff's employment as a result. It had nothing to do with age, you know, evidence in this record that this decision had anything to do with age. They also terminated L. Viro's employment coup was only 30 years old at the time. If matters not that L. Viro may have insulted plaintiff just prior to plaintiff's outbursts. Even if that were true, Judge, even if plaintiff was triggered by L. Viro's conduct, that does not as a matter of law. It's used to plaintiff's conduct. Yeah, but their argument is that the previous comments by L. Viro was enough to be hostile and that your time should have done something about it. So you think those comments were ages that were closed? A few things on that judge, they were vaguely age-related and the idea that Equinox did nothing is it's just unequivocally false. There's evidence in the record that as soon as Equinox caught wind, Viro said something to play just a week prior to the outburst, they gave her a severe record man. They told her if you say one more thing to her, you're going to be fired. Most employees would take heat of such a warning. I know I would. When they found out that she said another vaguely age-related comment to her, another week later, they fired her on the spot. That is absolutely appropriate under the circumstances. How about the fact that your friend raises that she was replaced in his Adam's was replaced by younger trainers? Well, the matter is that you haven't replaced with any younger trainers. Equinox simply took those clients that remained members of Equinox because some of the clients' clients went to continue training with plaintiff. And redistributed them amongst its employees whose age is at the time range from 22 to 43 years old. The law says that an employer's decision to distribute a former employees work among younger employees whether they're new hires, whether they're existing employees does not entail self-bespeak discrimination. Judge Crone and Senate perfectly. If an employer could not even distribute a former employee's work among younger employees, the employer would quote, be forced to either hire an older replacement, leave the employees former work on done, or spread that work among only those retained staff members older than the plaintiff. Simply to avoid raising an inference of discrimination. You are arguing that there is so little age here that even under the easier city and state we should affirm dismissal with prejudice, rather than dismiss the state claims to have led prejudice if we agree with you about preferable. Absolutely, Judge. There is an absence of evidence here. We're well aware of the standard of the New York City Marit's law. Motivated even in part, we understand that's more liberal than the federal standard, but there's no evidence here. And Judge Crone and said that throughout his decision. It's the absence of evidence. We're not deciding whether certain conduct rose to a certain level. We're saying there was no conduct at all. And that's the point why even the New York City Marit's law claims themselves. The dismissal of them that is should be affirmed by this court. With respect to Kita, that's the other individual to whom plaintiff seeks to compare herself. Few things on that. The plaintiff did in fact admit under oath that she doesn't know whether Kita intentionally threw a barbell at her. I deposed the plaintiff on that matter myself. Video footage confirmed that Kita, who was using a very heavy barbell, simply lost control of the barbell in the plaintiff's vicinity. That is completely different than plaintiff's admitted intentionally threatening the combat of behavior towards Elvira. So Kita's not even a proper comparator as a matter of law here. And to my adversary's point, that again, E. Quenach did nothing. That's false. The plaintiff made a complaint. Kita threw a barbell at me. There was a full-hage hard investigation that he looked at video surveillance. And they said, we understand what we're saying, but that's not true. So the idea that my adversary said twice that E. Quenach did nothing. E. Quenach did nothing. False on both cats that underzebidants and their efforts is actually that they acted appropriately and prompted. With respect to the plaintiff's allegations of hospital work environment relating to her mentoring contracts or pay, her personal training leads all of that has nothing whatsoever to do with age. Again, Judge Cronen said, the absence of evidence of treatment for discriminatory reason extends not only to point this termination, but to the mentoring program, the generation of leads to pay rates. For example, plaintiff asserts that she was underpaid. Pointed with the highest paid trainer at the club. Even trainers at her level, she had session rates ranging from $19 to $24 more per session than every other trainer. Joe Madarazzo, senior vice president of the company, testified on the road that pointed with the highest paid personal trainer at that club. With respect to the leads, plaintiff says that she wasn't given sufficient leads. The evidence in the record shows that she was given more leads than every other personal trainer for level. But even if she wasn't, even if she was given the same leads or some less leads than other trainers, this has nothing to do with her age. Again, her entire career was spent at the company in a protected age category. If the court has any questions, that'd be happy to feel fun. Thank you, council. Thank you. We'll hear a little about him. Now, I want to address the highest rate of pay. Yes, she had the highest rate of pay based on the rage and I understand that firing somebody because they have a highest rate of page doesn't assume that there's age discrimination. But she only had 20 clients. They say they were giving her more leads than anyone else. They'd give in a cold lead or she would have that client. That's why she was continually complaining. So that's what they were doing to with that. And the cold leads were talked about in the papers and the fact that they actually steer the client away from her at one point. If she's getting more leads than anybody, why is she sitting there in that situation? Where she only has 20 clients. These people don't come in every day. Each one of her clients. She was unable to harvest the business. She was able to keep her business going because they weren't giving her viable leads. And again, although it's a small point, Nancy Johnson said she wanted to train with her and they told her she was too busy. Too busy when she was complaining. She didn't have enough clients. There's an inference there that they wanted her to fail. And the entire case is based around the fact that there's an inference they wanted her around. She was older. They wanted her only to mentor. They were looking for excuse to get rid of her. They left her with Elvira when they knew what the situation was. They did nothing to keep her over the incident. And I disagree with the analysis of it. And please again read 167 174. And they finally got their excuse. After many years of the place having no problems being an incredible trainer and enormously successful athlete, you know, even her who's 60s, they wanted her gone. She didn't fit the image. And I found the way to do it. Thank you. Thank you, Bob. Thank you, Council. Thank you, Bob.

I understand Council have worked out in order and division of time so you can proceed as you've provided for in your letter. Thank you, Your Honor. Audemn, Policristen, American Civil Liberties Union. Speak right into the microphone. I'll lean it. Maybe raise the thing because you're tore. There's a button on the bottom right on the top. I don't hear it. Sorry. Thank you. Audemn, Policristen, American Civil Liberties Union for Petitioner, Serato Barhona. I want to address jurisdiction for both of the cases and also address the merits of the RISTER, Serato Barhona's CAC claim. Your Honor, Centos Zachariah, fundamentally changes the analysis adopted in Buckebi Patel. This panel can and should reconsider that ruling and restore the majority rule, which requires review of all claim trace. Let me ask you. Are you saying that the Supreme Court sufficiently reversed our previous decision in Patel so that we no longer need to follow it? Or are you saying that the Supreme Court in Santas went far enough along that line that we should consider getting rid of that case? By either an in bank or a mini bank or are you wondering who is involved? Your Honor, I don't think that, but Centos Zachariah did not directly address the question presented by the Patel. It did, however, make specific rulings and also adopted a mode of analysis that is fundamentally incompatible with the analysis in Buckebi Patel. I think that the court, I think that this panel, so I think the question is, under our rules, when something like that has happened, are we empowered to ignore a previous case or what do we do? I think we asked other people on Buckebi Patel, whether they would follow it or do we simply wait to see whether the Supreme Court, because there is a circuit split, if we decide against you, grant served and if they don't grant served, then ask to reconsider it back. I mean, these are all the possibilities for doing this and that kind of like to go. First, this panel can reach these issues and reverse Buckebi Patel because of the changes made in Centos Zachariah. Second, because of the changes in Centos Zachariah, I think that's what that's correct, Grace. He's focusing on, what exactly is this sort of chain of reasoning that you would have us follow to do the thing that you're. Absolutely, honor. Three points. So first, obviously, in primarily, the jurisdictional analysis has changed. Centos Zachariah establishes that stones language describing the previous version of 1252 B's timeline is not. Presidential for that purpose. It follows the analysis of Arba up to Wilkins in the last term of describing that it is a drive by jurisdictional ruling. That Udc. Santa, I think it didn't express the overall style. I agree that it doesn't specifically overruled down the whole thing down. So there by the, the Supreme Court did directly criticize stone, which was, in case that Arc Court relied on in Patel, but that isn't the same thing as saying that Patel is wrong. That's, that's correct, Your Honor. But I think that what's important here is the Arba line of cases, which states that a jurisdictional language, you know, can be promulgated in stray. And you look to see whether the Supreme Court's language regarding jurisdiction has actually been attuned to the modern clarification of the distinction between jurisdictional and non-dristictional rules, particularly when that language was not pivotal or necessary to resolution of that case. You may be right about the, you know, sort of general trend in Supreme Court precedence, but I think, which I tell the racist question was getting in mind too, is that what you're suggesting that we do is dangerous to the stability of our own court and the value, you know, and how we treat precedent. And so if it's multiple steps that you're asking us to find the reasoning is no longer valid, that's different than saying something is overruled and it's or abrogated, expressly. I think that what's different here is the fact that it's a, that the specific language was essentially identified as dicta and stone. And that's what settles to that right. This court, in fact, is previously used that analysis from our about to analyze Supreme Court decisions that had juristictional language apply the clear statement has to decide that statutes were non-dristics. Let, let me hear, let me tell you something which may seem a little bit odd. We have many cases that go in a direction that you and the ACLU are relatively comfortable with. There are many the Supreme Court today is moving in a different direction. You'd be the first to tell us that it's a bit dangerous for us to say because the Supreme Court is moving in a different direction. We abandon the cases that you would be the first to rely on. I mean, this question of relying on our previous cases is not a pregnant cuts one way or another. It's something it has some merit in itself. I think here you're on, are the differences is that this is not a new change in the direction of the Supreme Court's jurist mood. There's, you know, over a dozen cases from just the last decade alone that have all trended in this direction. There's no doubt that the Supreme Court has been and I think it's wise reducing the things that are juristictional. I mean, there's no doubt about that. That's where we're moving. That's how they moved as far as to get rid of the tell. Yes, it just maybe just it's sort of be a little more precise. So point one is that there's the question is whether the deadline is jurisdictional. The second issue is the the the finale analysis of the dotted in rectified tell. I think at least to the first issue, the Supreme Court's language in Santo Sakaaraya directly undermines the analysis or the lack of analysis. That was adopted in Bukta-Baita-Tal, which simply sidense a previous opinions of this court, which never apply the R-Motest. And then directly relied on stone for that proposition. I think on that, on that issue, I think Santo Sakaaraya is sufficiently clear. I think, however, it also goes further to reach this other issue of when, when of order, or re-estating decision becomes final. And I'd be willing to walk through that analysis, but I just want to make it absolutely clear that particularly for these two petitioners, and you know, you've read the briefs in petitioners throughout of our opponents case, he has a very valid cat claim, which the immigration judge, Aronius Lee, does that. And I think that in the United for lack of acquiescence, they relied on the previous law, and the government is agreeing to wave and timely misogection. And I think even for that narrow issue, of low would be helpful to them, as well as other litigants before this court. And that issue was directly addressed by Santo Sakaaraya when it distinguished stone and identified it as a drive by jurisdictional, as drive by jurisdictional language. And I think that the United for lack of acquiescence, and walk through the further analysis, if it would be useful for all of our. You're over your time, you've reserved some time for a battle, we're also going to hear from us. One question before you sit down, this is something that Judge Caliper is a. I'm sorry, there's something that touches on something that Judge Caliper is averted to. There's clearly a circuit split on this issue. Am I correct about that? That's correct. But the sheets and that may not be anything you can help me with. I don't it does not appear to me that there are any pending cert petitions on this issue, is that right? Not to my knowledge, there may be one from the Ford Circuit, not that I've seen thus far, however. But there's none, and I do think just if with the courts and dollars, I think just one final point. I think the fifth circuit's approach was particularly prohibitive here. The fifth circuit initially followed this court's decision in back to my Patel. Immediately after Satosakaraya came down, the fifth circuit, we heard that decision. Decided that the statute was non-vristictional, and furthermore adopted retained its previous interpretation of the statute. And I think that that, along with the nine circuits example, this sort of shows that lower courts, the courts of a keel are able to reach this issue after Satosakaraya, and its language is a patient. We don't do what the fifth circuit or the nine circuit, we have our own rules about following the rule of the previous. I guess to judge Parkers Point, I mean that makes what you're asking us to do even more ten-tentuous. I guess you're asking us to jump from one side of the circuit split to the other. And in doing so, raise some questions about how we treat our own precedent. I understand the concern you're on, and just one final point on this, because I know that I'm far over time. I think that their practicality issues presented by Parked to my Patel. Parked to my Patel suggests that people are supposed to file their petitions for review. Before, after their orders reinstated, but before their free-acclaims have even occurred, that creates a very complicated situation for the courts, entertain those petitions and for litigants. And I think that that's one of the reasons that we're asking the panel to look at this, again, particularly in light of Satosakaraya. Because these are important issues, they're gray issues of persecution and torture. And the ability to maintain practical judicial review over it is extremely important. And waiting for the Supreme Court's assignment on this may come to light. And that's one other reason for the need for re-herein at this point. Thank you. Thank you, Councilor. Mr. Chesan. Is that I'm sorry, if you all have agreed on a different order, I'd just what I have here. Just let's be clear who is speaking for who next they will change you. I will be honored. Good morning, John Jassen for the Petitioner of Bill Minkasta Home Pass. Your honor, in addition to your stitch argument, major issue in this particular case is whether the petition was prejudice by not receiving notice of the resbone fear with you by the immigration judge. As your honor is here, could I ask you to pull the microphone, Mr. Chaudhu? I don't know. I had no problem in hearing the others, but I may be probably you. Sorry, I moved closer as well. You know, the responding has conceded that the petitioner in this case has a coverable constitutional argument on the basis that she did not receive adequately notice. Of the hearing. In addition, your honors, the government, the responded claims that the petitioner was not prejudice by the lack of the notice. And therefore, the case should be dismissed on the merits. Our argument is that the had the petitioner been present for that hearing and represented by Council. We would have been able to present an argument to the judge. And the tender you also presented evidence at that hearing. Now, I know statutorily and the regulations do not provide for specific order of the hearing in reference to, you know, full hearing regarding evidence and so forth. As we did sit in a reply brief, under the immigration court practice manual chapter seven, it does specify that in the discretion of immigration judge. The petitioner can provide testimony, make a statement, potentially provide other evidence at that hearing. In this case, the petitioner was deprived of that right. And I think this raises to your honors questions concerning what you do next moving forward. This exemplifies the fact that here we have a petitioner who had a coverable claim of violation due process. And would not have had any avenue to litigate that or bring that to the target. Are you saying one that the merits are sufficiently complicated that one can't just decide them or are you saying also that our hotel decision did not bar your restriction in the cases where there is a colourable constitutional argument. Both. Yes, I think we would argue both, you know, and in particular regarding hotel, I don't believe hotel. Specifically stated or, you know, raise that issue as far as whether there's an independent claim or constitutional claim. And, you know, again, in this case, the fact that so you would read, but tell us saying that there might be jurisdiction. In that case, where it's a colourable constitutional argument. I believe so, you know, just, but how, hotel didn't discuss it. It's how do we read it that way rather than just this individual's digital issue? Because it's a constitutional issue. I know, but it's, I do when we read an opinion of our court, say there may have been some things we don't know. Some things we didn't mention, and so we treated it as not having decided, but what's it? Yeah, and I realize you're on a desk at very messy. I think, you know, as far as trying to, you know, then create exceptions and, and other, you know, examples of where, you know, is there a, you know, colourable, constitutional claim, and... But in some way, I mean, being quite direct, the way to solve both this problem of a problem at previous council argue, would be either for the Supreme Court to come in on cert and say, this is not jurisdiction or for us in an in-back or a minime-back to say, given what the Supreme Court has done, but tell should no longer govern us. I mean, that would be the normal thing for us to do, and that would solve the problem in some way that is really differential to our previous panels, but gets to the result that you are arguing is the correct result. And I believe you're on the respondent's arguing, the latter, that to, you know, create or to expand the bright so that, for example, again, that, you know, constitutional claims would then also be indicated and reviewed by the court. Thank you. Thank you, council. Thank you. Mr. President, the government. May it please the court, Don Conrad, on behalf of the United States Attorney General. I think it's important to dissect, to fuck, to private tell, and to two separate holdings to look at what happens here with Santos Zachariah. First, there's the holding, whether 1252B1, the 38-day time limit, is jurisdictional. In that case, we're holding that, we are arguing that Santos Zachariah sufficiently cast doubt on tobacco, and other president of this court that that 30-day time limit is not jurisdictional. The second holding, which is when a reinstatement order becomes final for purposes of judicial review, is controlled by a cocktail, and we would argue that this court should employ as many on-bomb procedures to reconsider that decision. In light of Santos Zachariah, and also subsequently since this court was the first court to decide that issue, five other circuits have come down on a different side. And argue that a reinstatement order only becomes final once with holding only or reasonable for proceedings have concluded. So in Santa Zachariah, they made clear that there was a drive by jurisdictional ruling and stone about the 30-day time limit, and that could not be, that was not a sufficient basis either. But if I understand it correctly, the Santos case did not involve exactly timing as a fist one might. And on the other hand, it listed a series of things that remained, and it didn't list this as remaining. So that left us in some kind of doubt as to just how far the Supreme Court was going. I mean, on the one hand, there is a difference. On the other hand, it didn't put it in those cases, it was over say. I understand your honor, but I also think Santos Zachariah, which looked at the exhaustion provision, 1252D1, and Steadard 1252B1, is for all the reasons I found that the exhaustion provision was not jurisdictional, that it also supports that 1252B1 is not jurisdictional. And also Santos Zachariah directly criticized stone as being a drive by jurisdictional ruling on timeliness. But it didn't overall it. That's correct. It did not at all stunk as a main holding of stone was the EFT file separatist for review from Bush's reopening. Now, finally you suggested you should go in back at least as to some part, you say, many in back, many in bank requires you, and many we can go in back with that it being many. Here is my fault. Many years ago, in a case called Quilver's Vaco, which involved right to die, there was this question of whether we should go in back, or whether we should wait to see whether the Supreme Court took the case. Graded, served, and decided, and there was a very interesting opinion by himself for his chambers, by the Venteef Judge Norman, that said, in such cases, we should wait. Maybe decide, in case, some way, wait to see whether the Supreme Court grants served. And if the Supreme Court grants served, that's fine, we'll settle it. And if they don't, that's when we go in back. That's when we try to go in back. We then have to have a vote. Why wouldn't that, in some way, be an appropriate way of handling this, see if the Supreme Court is interested in settling this? And if the Supreme Court is not interested, then see whether our court is prepared to say, given all that has happened, that we want to reconsider a patelle? I guess I'm a little bit that slows things. I guess the prevailing party, because there would result in a dismissal for lack of jurisdiction, would be on the petitioner for to file the cert petition. Yeah, it wouldn't be you, it would be them. That's correct. But I guess, are you proposing that the court would hold these cases in a bans? Pending, we could Supreme Court out. So if we held it in a bans, then it would have to be somebody else. Okay, we would decide. We would have to decide and decide that we are currently bound by our patelle decision, and that we are holding the mandate until we see whether the Supreme Court grants served. And if the Supreme Court doesn't grant served, we will then consider having held the mandate, whether we want to overturn our prior decision by an in-bet, which we may or may not know. Of course, that's always up to the full court. And the other thing to point you, pardon for interrupting to factor into when you respond to Judge Calibration's question is that there's a queue behind this. Behind this court and behind this case. Yeah. Folks, ability in those cases, folks ability to remain in this country is uncertain. Can I ask about that? Actually, what's the government standard for waving on time-linous here? Even if it weren't yours, it can also be mandatory for claims processing. And so I'm not clear what's going on. So, yes, so in these cases, we took the position that we waved the 30 day because our position is now that's mandatory and not jurisdictional. And we're waving it in these cases because of course these petitioners did not know at the time the re-enstatement order was issued, which came out for Bacter-5 patelle, that they had to file within 30 days of that decision. So, the government plans to decide where we're on a case by case basis. It would just look at the underlying facts of the cases for all future. So, what would the future standard be? I mean, I understand that what you just said about these particular petitioners. Right, right. Probably, I mean, I think we would pretty vigorously enforce it in regular 240 proceedings where there is a direct appeal from a Board of Immigration's appeals decision because they would obviously know that they had 30 days to file. I mean, it would just be on a case by case basis and whether there was a manifest injustice. And here you say that because of our these cases came up, you think it is appropriate to wait, but having waved you waved. Correct. I mean, if there was a difference in our role in the long time ago saying it's not your restriction, but it's mandatory. They didn't waved until that said, but that isn't this case. That's correct. And to return to your question about whether the court should wait until there is a certain petition in these cases. I mean, obviously this court can proceed how it decides is best. I mean, we would argue that it doesn't need to wait that it can decide these either on its minimum block or you think that some doses clear enough. Correct. To at least to at least determine that 1252v 1252v one is a non is a mandatory claims processing. Well, not sure. That I mean, would you agree that that involves some forecasting from by us of what the Supreme Court would do that it has not yet done. Well, the court has an address that statute specifically, but I would all of the recent case law since our law on is indicated that it is going to find that it is a mandatory. I understand and you may well be right about that, but it hasn't said so. It hasn't said so. There is a difference between you know a exhaustion and time-liness. And it did not list as Judge Kelly Barracy noted D1 in or B1 among the things examples of clearly non-dristictional. I don't know, did it listed statutes that were clearly a jurisdiction. And it's not listed. I'm not sure. Yes. The Supreme Court has also said very clearly quite fiercely by Justice Scalia, along Tomico, don't tell us where we're going to go. We for us to go. And that was in cases where some justices said it changed or mine. It was that proposed case. We did that and that was all right. The court has been very fierce about saying, don't predict us. I understand you're on her, but I would say that the current all the history, since you have the issue. You're saying this so clearly. This one is very there is no clear statement analysis. I'm sorry I'm 1252. Can I just address very briefly the constitutional claimation? Yeah. I just want to say that I do think Clock to Pipe a Tell was an as of flight analysis in that case and did not consider whether any petitioner could possibly raise a constitutional claim in there with holding only or reasonable fear proceedings, which I've backed up. The Boc Depypetel recognized will mainly conclude after their detainement to file a petition for review after their re-instainment proceedings. And I do think Miss Castajon's case demonstrates that you can raise a colorable constitutional claim. And even more so with withholding only proceedings there could be situations where a petitioner is deprived of the right to counsel before. The idea of the board and under Boc Depypetel if that means no constitutional claim, and they would not be allowed to present that claim. And just to be clear on the finality analysis of Boc Depypetel, you're just asking us, you're just disagreeing with it and saying that we should. Many unbong. Yes, and that you should follow the other five circuits that have found its final. One that's fine. All right. Thank you, Your Honor. Thank you, Council. Next we'll hear from Mr. McCotter. Thank you, Judge. And may it please, the court. Trump Macotter for Amicus, America First Legal Foundation. President requires dismissal of these two petitions. The parties are asking the court not just to overrule Boc Depypetel on the jurisdictional issue, but really to overrule the Supreme Court itself. In stone, which issued a directly applicable decision on whether the INA's filing deadline is jurisdictional. And of course, this court cannot assume that the Supreme Court would overrule that decision if given the chain. But since you've heard not more, you've had an opportunity to read Santos, so you're sitting right here. Yes, Judge. Yes, Judge. All right, just want to give me a sure. And also the way that we would frame the issue, Judge, is that what the Supreme Court has said is going forward. Here's the framework for deciding whether a provision is jurisdictional. What the Supreme Court has not said is how the lower court should address the Supreme Court's prior holdings on specific statutes. So the Supreme Court has said this specific statutes is jurisdictional. And there may be reasons if the Supreme Court got the issue back again that they would stick to that. For example, statutory sorry, I hear what you're saying. I just do the notion that it is because of stone and the Supreme Court in Santos' specific, said stone ain't very good. Is a weak or argument that the argument that they haven't specifically dealt with the issue in this case. And I think our argument would be that perhaps stone is not good law for the vast majority of statutory provisions. But we know that it must be good law for the one provision that stone itself addressed, which was 1252 B1. What would you have us do here? I'm going to be sure I'm very clear on that. The court should say that stone VINAS is still binding on 1252 B1. Only the Supreme Court can overrule it. And even though the Supreme Court has certainly cast out on it, that decision must be made by the Supreme Court itself. Why would we go to a Supreme Court decision when we have a decision of our court that is directly in point and has not been overruled by the Supreme Court? We're not in the habit of citing the Supreme Court when we have cases in arms. Indeed, if there's a Supreme Court decision, but no decision of our court, we can't issue a summary order. We have to issue an opinion of our court, say that in a part of the Supreme Court. That's the way to see your works. We are bound by previous presidents of our court and our presidents follow the Supreme Court. You like a Supreme Court because you like a Supreme Court, good for you. But that's not my job. My job is to follow my court. Well, I think that's an extra point in our favor, which is, which is that regardless of what one may think of stone, black-but-type, a tell is still binding on that point in our view. On this question of Santos, Zacaria, a page 420, a list of our provisions that it claims are quote non-gerestictional, and conspicuously absent, 1252 B1. Although it does list the very next subsection, 1252 B2. So if it were so obvious the Supreme Court had changed his mind even on the provision at issue and stone, I think they probably would have listed 1252 B1. I think they were reserving this issue because in fact, stone is still binding on that point and they may change their mind down the road. And in fact, at least six circuits, including this one, had said, after Santos, Zacaria, that that provision remains jurisdictional. Some of those were unpublished opinions to be clear, but at least six circuits have said that. The fourth, seventh and 11th have specifically said, stone is still binding even after Santos is a car. So the reason is circuit split. There is definitely a circuit split. The ninth circuit is going the other way. The fifth circuit has inconsistent case loss on that one. Well, that was recently. When you get the fifth and the ninth of the ring and something that's a rather remarkable state of affairs. True. Although as we point out in our Amiga's brief, the fifth circuit seems to be a little inconsistent. They have a subsequent decision unpublished, that says actually 1252 B1 is still a restriction on that. So that's on the jurisdictional question and on the... What would you consider that there's some tension between hotel and Santos? On the jurisdictional issue? Yeah. I think that's fair. But I would also say that until the Supreme Court over rules stone, then 1252 B1 must be treated as jurisdictional. In this report said this, they've said, when we have a directly applicable decision like that, even when we have other decisions later that seem to undercut it, the reports have to stick with that directly applicable one. But based on your study of this information, do you believe that a total jurisdictional analysis is now correct? It's correct given stone. Yes. And I think that... I'm sorry, I was rude. I asked your question and then interrupt and do when you were answered. Oh, I was just going to say given stone, yes, pop up type of tells right because an argue stone is still binding. If this... maybe the question is, if the Supreme Court is just never issued stone, the Supreme Court never had an opinion on 1252 B1 and whether it's jurisdictional, then would we think that it's jurisdictional? It would be a harder case certainly, but I'd also point out that the Supreme Court hasn't overrule both the rustle, which is the timeline to appeal from a district court to a circuit court. That one's been long-standing. Nobody really questions that one. It's a very similar idea. Time lines might still be jurisdictional. But again, all that's going to type with that up was the Supreme Court's lead. That was Supreme Court. It's really... this room has addressed it. With the court's indulgence might just briefly address the withholding only. Briefly. Issue. So, Bobbottie Battelle did not fail to anticipate colourable constitutional claims. At page 4, 11 it says, illegal reentrance, lack colourable due process claims and the context of withholding only decisions. That's a holding. It's not failing to anticipate anything. It doesn't list any exceptions. The court obviously need not reach those issues given that an argue the court should dismiss fuckage or stiction, but I did want to briefly address that one point. Thank you. Thank you, thank you. And we'll hear the battle. Thank you. On in Balakrasman ACLU, I'll be brief. I wanted to make two points. The first is to take another shot at SETO SECARIA and Sto with the court. Which is that SETO SECARIA, I think the clearest way of reading it is identifying the language from Sto describing the timeline as jurisdictional as non-presidential. Clearly, the Supreme Court has not ruled at this point on whether the timeline is jurisdictional. At this point, unlike in Bucdebite Battelle, this court is presented with a clean slate. The question isn't whether you're anticipating what the Supreme Court might do. That's a course and issue in any case where there's no precedent on point. This court is still, it's incumbent on this court to assess its jurisdiction. I think that's a fundamental attribute of Article 3. And I think given the clean slate after SETO SECARIA and the fact that this court incorrectly relied on the now repudiated language has never fully interpreted the statute under the governing test adopted by the Supreme Court. It is free to do so now and should do so now. It's a clean slate except for our own precedent that is on all fours. I understand, but that precedent, however, under this court's own rules for when it can read this precedent in light of an intervening Supreme Court case, this means that situation. Because this court has even said it. It's phrase that has sort of a different. It just strikes me as dangerous if we start saying that the reasoning from this provision, which is applicable here, is sufficient to say that that precedent is deemed no longer valid. And so I am concerned about the implications of your argument for this stability of our precedent and how we rely on it. So your position is sensitive for somebody like me who agrees, I think, with where the Supreme Court is going. Thanks, the Supreme Court will go there. Seas that we have oppressive into the contrary, what I should do now, do I say that the Supreme Court has done enough to undercut our precedent, so that I don't need to follow it as an individual panel, or do I ask to set up a way in which our court in its proper procedure by a bank review if it chooses to be a bank review if it chooses to do so gets rid of a precedent that I probably believe the Supreme Court would not adhere to now. That's my question. And there we are. I understand her honor and I know my briefly does that. I think that again, this situation is that this situation moves the court's rules for when I can revisit prior decisions. And so the panel can do so the panel could of course go on block as an alternative. I think that this does meet the situation. This is not a subtle change in the law. It is not tangential to the juistictional portion of the debate the tell. And this court outside of Bucdebite, it tells reliance on stone has never followed the Supreme Court's rulings, not just from Santa Saccharaya, but going all the way back to our, when interpreting the petition for it, we deadline. So I think that the framing I'm proposing for this is that there is no Supreme Court precedent. The Supreme Court has said there is none and the court has worked on a blank slate. And with that, you're on there. So unless there's any further questions about. Thank you.

Thank you. Good morning. My name is Anne O'Toole Sand and I represent Appellan Scottsdale and Sherns company and I'm with the law firm of Kennedy's in the York. Before discussing the appeal this court issued a suicide's Montaie Order saying whether they in fact have jurisdiction to hear this appeal. I know that plaintiff greater New York and my codependent Burlington didn't raise this in their papers whether the appeal was proper. So I'm just pointing that out to address the courts They wanted us to explain why this case is Distinguished of all from another case involving Scottsdale Scottsdale versus McGrath This order that we're appealing from is a final order And the court has jurisdiction to hear it the whole issue in this case is whether there was a written contract that required Scottsdale Now to provide additional insurance coverage to an insured of greater New York better spend isn't there a problem Whenever there is a voluntary dismissal now I know you weren't for ones who did the voluntary dismissal and so the usual cases on that aren't directly in point But you didn't comply with our rule 54 we did you I mean you can make sure Somebody who is a third party could have gotten this by getting a statement by the court that this was not a Purpose of delay and you didn't do that if you we didn't do it But I don't think based on the circumstances of this case We're aware of defend end and we didn't assert a counter claim and the claims that were brought against us is for the duty to defend But also with respect to the duty to identify which this court has repeatedly held That that awaits liability determinations in trial So federal courts have an New York state courts have always Most cases issued in order saying it's premature to decide the duty to indemnify that's a determine on an Eibility finding in fact in the Westport insurance company this court considered an appeal with similar facts Insurance company argued no duty to indemnify Court found issues yes, they did they had a duty to indemn a defend issues regarding indemnity premature It's got a way to liability finding and went forward with the appeal They found that the insurance company had a duty to defend which is some good argues It's a little different than my case. I want to argue. There's no duty to defend But the court still found that had jurisdiction so in most of the cases where it's premature and it's been dismissed There is other issues going on with those cases where a factual determination There's a possibility it could go back to the court and I understand why a court wants to abstain from doing that or you need to make a motion But in my opinion, you know, this case is is different. It's just one single issue on the duty to defend No unbearance On the merits. It's really straightforward In 2013 there was a tender bike right or New York saying our clam park city is an additional in short And there's a contract the only contract that was produced in 2013 was a proposal It contained no indemnification or insurance procurement language. This is all happening in a labor law action and state court The court and about 2018 the parties who per summary judgment Park city moves on its claim for identification and breach of contract for failure to procure insurance and the courts is there's no contract There's been depositions. There's been discovered. There's no college It's not raised you to cut it and it's not collateral stop I would argue that it's both the whole issue in this case about in this D. J. Action is whether there's no substance there's no reasoned argument that the Do need to add that Extra insured existed and that there was a really contract Correct. I'm sorry. There what there's no Duke. I'm sorry Getting over a cold to some might hear some may be my budget decision that you Just a verdict to the two other 13 decision was manifestly long because in fact the contract did exist and the obligation that was argued Was clearly expressed in the written contract right We're not sure where that contract came from we don't know why it was produced in 2022 It's a Related to the con the authenticity We're not sure about where that I don't know where that contract came from are in short testified and greater in New York The insurance company that retained Park City that brought the indemnification claim in the under-lat lion action said there was no contracts Burlington who is the insurance company of Another co-dependent there are the ones that found that contract are in short testified based on a subpoena That was issued by the lower court he wasn't he didn't get a copy of that contract They tried to use that contract in the underlying action to go back and argue to the court Oh, here's the contract and the and the court denied the motion to read new I Thought you didn't argue that there was privity below for collateral supple purposes. Is that right? We did argue it was more that the court should abstain like the court has done it has a different argument though So I'm trying to understand following up when you're at Parkers question. What exactly your theory is for why Why the the contract has already been Decided and I didn't see from until you reply brief. I think this argument that you're raising now You have collateral stop-up Is that waived so I do not believe a way to collateral stop-up or first argument was Abstention there's already been a decision and you're gonna get inconsistent findings which we have right now So that's going on in the state court action and the federal right we also raised you to cut of the issues already been decided for collateral stop-up strongly believe with the abstention but We all represent insurance companies and in the underlying action in this particular case the real party in interest is an insurance party There's an indemnity and demnitorial relationship so even though we were not a party to the underlying action Our defense counts a routine by the two parties in interest which is insurance companies We're seeking to pass the risk to one another This issue has already been litigated like I said it was Burlington who is my code defendant trying to get a risk share with me Their investigator found this contract but Park City never said there was a contract in fact said the opposite and it wasn't produced So I believe collateral stop-up rescue to caught a abstention. There's many decisions What is questionable weather goals you're raised but there is an issue about the Statutory of limitations There was also a Statutory of limitations. There is New York case and in fact a 2019 decision by federal court that said The time the Statutory of limitations is when an insurance company declines coverage isn't that not true when the question is about indemnity and defense that you have got Possibly the decision of the appellant division which is the only New York as against comments by federal ones That says that it doesn't start to run until The whole case is over and that isn't so and under that you are subject to the statute Their claim is within the statute of limitations under Gaza So under Gaza yes that's a 2016 case from state courts, but there's a federal case Yeah, but this is an issue of state law So you know I don't care terribly much what federal courts say about state law Unless they're citing me state cases and the only state case is Gaza which says this is timely We do refer to a court of authority case that is a state court case that also said it's when you Disclane coverage and that's when the breach so I understand there is God'sly saying that that there's more recent cases that are found that the breach occurs when you Disclane coverage which we did is this question sufficiently on certain that we should serve it I Don't I will go more for the key to more recent cases from state court and port authority and then those case What was the court you are citing important for you what was the state court you're citing That was in New York Supreme court decision But it also court and we have a court of appeal. I mean we don't have a court of appeals decision, but we have an appellant division decision Yes, and that's the only appellant division decision and that says it starts to run when things in I would argue that the state court also cites to other decisions to support its finding and these cases are more recent Tell me on which pages of your briefed you argue collateral stop-up and race due to climate Where do you say these claims of the barred by collateral stop a wedding say they're clean The borough by race due to cost so we do raise it as the court noted in the in the reply in our in our reply brief To discuss it But we do okay, so in your main brief it was not great. It's correct in the main brief we did we went more unrest here to cata That's what you raise race due to cata in your brief other than in the reply We in the initial brief we were talking about yes, there was a judgment this issue was Litigated in the underlying action. This is not a trick question, man I'm asking you a straightforward question not whether you talked about it or not whether you inferred about it Did you raise race due to cata did you raise collateral stop We give you if so just simply give me the page sites and I will be a happy judge I'm gonna start with It was I believe the second Second point in our brief what's brief dated what did initial brief? When we talk about first we talk about the statutory limitations then we talk about the contract And then we talk about how the courts should have abstained and it's in that discussion Read maybe Read me as sentence raising race due to cata and raising a collateral stop and if you can't find it now You can always tell us some of the story On 14 sorry on 14 Maynbury you say page 14 through 18. I'm sorry 14 to through 18 okay And then we go into more detail in in reply. Thank you. I will take a look. Thank you Mr. Shiven Please support like children from welfare mothkini the sovich rally will for Plaintiff a pelly greater near unusual chance come Your honors if I can start first with the statute limitations question that you raised The statute limitations is crystal clear It's not one that has to go back there is no In consistent verdicts on the duty to defend which this case is about every court had said Point like it occurs when the underlying action is over We say in our brief not only stay court after galley that says it from 2018 2021 we said the federal courts at say it so it is consistent Do you have a decision of a New York according to the appeals in point no, but every Apped if that has addressed it in the state of New York has said it accrues based on galley At the end of the underlying case in that case is still on go So you say that there is no conflict and even both in New York according appeals hasn't spoken It's not an issue we need to question Correct wrong and in fact the cases that were cited Casimus and the the bus case which is a trial court case they didn't deal the duty to defend That's the key issue so there is not one case dealing with the duties of the fact There clearly is a difference between the two will respect to a statute and New York Okay, correct so as to the duty to defend it's crystal clear now one case going the other way I want to turn to the Resjudacada comments Resjudacada's three elements and they're simple you need a final judge me that's number one We don't have that So you cannot establish residue to cod in no matter what as they said me underlying case is still going on You can't have resjudacada when there's no final judge here So they can't sit here in argument We have a residue to kind of decision here and The issues because there's two other things identity or purbity of parties and identity of cause of action There is no other cause of action that's the same in the underline the cause of action here is duty to defend That's not at issue in the underlying case That was never at issue the underlying case because it's between parties Not insurance companies like the president matter So you can't have resjudacada to address that issue even if your your honors are gonna consider it Abstention is simply doesn't apply what what is a status of the underlying action? I mean it seems like it's been you are going for quite a long time It has your honor and although it's not on the record it's it's scheduled to go to trial in a few months Okay, thanks you're well Um, abstention doesn't apply here. There's no reason to abstain All the factors really to abstention will the judge and server useful purpose? Yes, hello We'll establish due defend between parties who have been fighting over Um, finalized relief. Yeah, we're getting the relief that we saw that we should have gotten back in 2013 This is not a race to register to cover is something a little bit odd by the other side arguing Appstention and at the same time saying this is so final that there is jurisdiction It's a funny way And I point out they cross move for some rejection right they didn't ask to abstain they said we're entitled to some judgment Based on that decision below that's not abstention the opposite abstention It's going forward so The abstention case decided and we are easily differentiated those had to do with the duty to indemnify the travelers case The farge case the tight in case they dealt the duty to indemnify As council can see the courts say it's got to wait until the underlying accent Underlying action goes forward so there's a determination on liability That's not what's that issue here wrong duty to defend is there a possibility of coverage Based upon the allegations and the information of all that was required is that there was a contract We know there is it's undisputed there was a contract See where the deponent testified there was I thought your opponent just said There was there was inadequate proof of lack improved the justice of a contract I heard that But it's it's not accurate he test find that The contract was accurate this is actually fact in our case he testified it's in our record And if you're our bears with me, I'll give you the exact site of the record And there we go It's on the a 500 jr And I will give you quote there with me one second please All right your honor it's a 545 a 552 a 553 a 554 that's the which step position in which he was asked about the contract It was as if it's your signature on the contract he verified it Your five seconds left any questions before I go. No. Thank you council Mr. Claser Good morning Yale glazer Lizari Potter to code some oil for a Pellie the Broington insurance company I believe Mr. Children is adequately represented the statute of occasions issue I just wanted to point out that the contract that she which was raised Not only my It seems a brilliant and was the the Instigator of all this issue here when we got involved we figured out that Brillington likely to do these defend under reservation my Irish out to greater New York and said hey Why Scott's there? I was like identical contract provisions also not being saw that That's what led to this lawsuit now My investigator The key problem or question here is that the same principle for both Brillington's insured is also the same principle for Scott's Dallas insured So in Brillington's and the investigator went to him in 2012 and to give us the contract to give us the contract not only give us the contract for My insured he also gave us the contract between Park City and Scott's Bales insured why that contract never made it anywhere else is Probably a Tony error below When I got it I said hey, we got this contract. Let's figure it out Why Park City didn't realize they had a contract with with Scott sales insured is unknown The other one the best position it would have given them that better arguments for additional insured and I contractual and then but that's that's with the besides the point because Mr. Chain Who was the representative who signed with behalf of Park City has since submitted out of the innocent When I testified before there was no contract I made a mistake there is a contract that's my signature When Mr. Sweet Act who is the principal for Scott's gales insured was deposed in this case he said that's my contract That's the signature that's Mr. Chain's signature. So this whole idea of we don't know where the contract came from Is ridiculous both parties resigned it said they decided said it's valid and applicable indeed in 2016 Mr. Sweet testify twice in the end of all in case when it was first testified on behalf of bridging He had mentioned that contract bridging Scott's gales insured the second time when he testified on behalf of The only thing for sure restores he said by the way there's another contract out there between Carxy and bridging it's got the same terms as as the bridging as the restores Park City contract and They're discussing and count to say I need the copy your basic argument That the question of the existence of a contract was not settled in any way that binds us in The earlier decisions the district court found a contract and this is Was we then the statute of limitations and given what New York law is about do these to defend that That sounds it there there is nothing in the underlying case Which was addressed in this case and even the case decided by a pelling actually helps Because matter of fact in the port of 40 versus brick in case When they're citing for the support there there was a same party same contract The issue the ultimately found there was a duty to defend in the second case So actually helps our case that I suppose I'm happy answering the questions that your arms have Thank you. Thank you. Thank you counsel We'll take the case under advisement. Thank you. Oh before we leave though. I'm one of I'm constrained to Tell you Ms. Adelson that litigants of this court a duty of candor And it is not Help pulled to your client or to us for you to misrepresent the record. Thank you Me I respond to that that's and I understand and I've been before this court before so I take what you say Very strongly that I just know argument about race due to cod or collateral stop on pages 14 to 18 of your brief You do not make that point We say to kiss on that discusses I just look I just looked at the pages I don't want to believe or this discussion. Thank you

Court is calling people of the state of Illinois versus Jeffrey Rine King number 4, 23, 04, 8, 6. Yes, Council, starting with Council for the Appellate to state your name and introduce yourself to the Court. Court, Justice, Michael debate, I'll be here for the Mr. Ranky. Matthew Goldman, for the people of Illinois. All right. If you're ready to proceed, Council. I am your honor. Thank you. In this case, Mr. Ranky was set for a bench trial that took place in May of 2022. And in this case, prior to the hearing of the trial that took place, his attorney, Kevin Sullivan, entered into stipulations with the state. The written stipulations were only signed by both the state and Mr. Sullivan. They were not signed by Mr. Ranking. The back history on that is Mr. Ranking had objected to any stipulations that were going to be presented to the state in this case. He was not going to stipulate to those in January, in January 6th of 2022, Mr. Sullivan emailed a list of stipulations to Mr. Ranking on January 11, Mr. Ranking, Robacchi, would not agree to those stipulations. So he did object, Mr. Sullivan knew that. He objected any stipulations. He just objected to those. He objected to those stipulations that were already written out. He's done an attorney. So he didn't know any of their stipulations. This is what Mr. Sullivan wanted to present as part of the case. And he was not agreeing to that wording in those. He had a friend, Mr. Munsene, who was a professor of Bradley, was kind of helping him along here, meeting with him. And he had sent Mr. Sullivan a suggestion on January 13th for what might be acceptable for stipulations. Attorney Sullivan later testified that there were no other written stipulations that were presented between the parties. He said that he had discussed stipulations with Mr. Ranking that may be three times after January and before the trial in May, meeting the last time May 12th, which would have been the day before the trial with Mr. Ranking in his wife. Mr. Sullivan said at that point, he remembered discussing them, but he didn't remember if he ever showed them to Mr. Ranking, but he discussed them. Every time I pressed him on the issue of, did you actually show him these? How did he know what these stipulations were? He couldn't provide any documentation. He couldn't remember any dates that he'd actually presented something to him. And his testimony was that he doesn't remember actually providing anything and writing to him just that they discussed them. So on May 12th, on May 13th when the trial takes place, that's the first time that Mr. Ranking is aware of these stipulations that are presented at the court. The court asked Mr. Sullivan, have you gone over these with your client? His response was as recently as yesterday. Mr. Ranking also has a hearing difficulties from birth. He wears a hearing aid. He has difficulty hearing, especially if somebody is not facing him. So part of the thing was that came out in the hearing about this was that Mr. Ranking didn't object at trial when they were talking about these stipulations that were going on. First Mr. Ranking didn't know anything about stipulations. He's not an attorney. He doesn't know this. He was relying on Mr. Sullivan to explain to him what was going on and working as best interest. That didn't take place. So the court relied upon the fact that Mr. Ranking didn't stand up at trial and say, I object. Or did the court rely upon the fact that he didn't interact with his attorney on that subject? I mean, every word that was spoken to him by the judge who asked him numerous questions. Mr. Face amplified probably and all the examination and cross examination. He had no trouble hearing any of that. At the trial, the judge didn't really interact that much. He just said, did you go over this with Mr. Ranking? Mr. Sullivan said yes. As recently as yesterday, at that point the state's attorney, Mr. Holly got up and started to speak facing away from Mr. Ranking and he went over what was going to present in his opening statement about some of the stipulations, but that wasn't addressed specifically by the judge with Mr. Ranking. It was more ASA-Hallie that was talking to the court just as we're doing today with Mr. Ranking sitting there not facing him, unable to really hear what's going on and assuming that Mr. Sullivan has worked in his best interest. In his stipulation. Councillor Faye may, though. There was a point during his testimony where attorney Sullivan directly asked him in one of our stipulations number five to be exact. It said that you had a Bushmaster AR-15 firearm in your possession as that correct and the defendant responded. That's what they say. I don't know what the firearms were at that time. So at that point during that questioning, he was well aware of the usage of the word stipulation. He clearly heard that. So at that moment, even if we disregard or even we accept that he didn't hear the other stipulations. Shouldn't he have objected to his attorney's reference to that at that time? He was agreeing to the fact that the firearm was returned. If you think if you look at that part of the transcript, Mr. Sullivan even had to correct his language because at first he said, gave and he said, did you return the firearm? Because that was a part of the stipulation that was under scrutiny. Mr. Ranking was willing to agree to a stipulation that he had returned the firearms to Travis. But he was not willing to say the word giver gave because that was part of the statute that was being challenged initially when another attorney was represented, he had filed a motion to dismiss based upon that. And Mr. Sullivan had even said at the start of the trial when he renewed that motion that they were not stipulating or they were challenging the word giver or gave because of ambiguity. So that's what Mr. Ranking was saying. He never objected to the fact that or said that he didn't return the rifle to Travis. Let me be clear that was, does Mr. Ranking or did he object to the usage of stipulations? Yes. But you also just said that he didn't object to use the stipulation as long as it had returned instead of gift. That was what he had, if you look at what they had sent back to him or what Mr. Muncie had talked about discussing with Mr. Sullivan about what would be acceptable. I'm discussing at the point of trial when we're beyond January. Under direct exam? Yes. Okay. Under direct exam, you know, I don't even know if he knows what the word stipulation is specifically, you know, under direct exam. But he's knows that yes, he did return the rifle to Travis based upon what deputies had told him to do. And that's part of this problem is that there weren't defenses put in here. Mr. Sullivan didn't investigate before he did these stipulations. The other stipulations he put in there. He agreed to things that never should have been agreed to because the state had no evidence for those. But Mr. Sullivan agreed to them. Well, let's talk about that. One of the things that you benefit from an stipulation is not having to do kind of the like work to get facts that are fairly uncontroversial. So yeah, there wouldn't be facts in the record if things were stipulated to, right? That's their purpose. That is correct. So, I mean, some of the things like Mr. Ranking Sun receiving mental health treatment at that facility, that's kind of thing that could have been easily documented. I'm glad you brought that up here, honor, because no. It could have been had it existed, but it didn't exist. That's the problem we have here. Did it not exist or you're saying it's a question mark we don't know? I've got the records from the hospital. There is no record of treatment by definition. If you look at the statute, the statute very clearly defines both mental health or the facility is defined. So is patient. If you look at what how they define patient, it goes into having treatment. There is no record of a treatment at Unity Point. He was there. He was there, but there's no record. He received treatment, and that's the tricky part of this because if they can't prove that in the statute, they can't convict him. In this case, there's a multitude of errors that took place. Mr. Sullivan should have investigated, starting with the fact that Travis Wimther, he was involuntarily committed. So he was involuntarily committed. After he went. That would have been under the mental health code. Correct. And it would have been the judgment of the clinicians. What treatment he would receive? If you receive treatment. Well, are the records required from the hospital or from the treatment facility? Correct. Mental health facility, are they in the record? There's no treatment in the record that I could find. What you discovered from the facility? Is that in the record? Oh, your records. No, that was never presented in the records. I did not do the trial, so that was not presented in there. I couldn't present it afterwards. So, but what happened here on in this case? Wait a minute. We don't know you're asserting something that's not part of the trial record to make a point on appeal. How does that work? Well, the question was asked if there was something there, I'm simply saying, from my investigation, there was nothing there. What was there, though, is an involuntary commitment. That triggers certain events. An involuntary commitment, the circuit clerk, is required by statute. They must. They shall report that to the state, please. That never happened. You're going on to another point. Okay. I understand that. The responsibility. I'm trying to grasp why you think that your examination of those records or whatever you did demonstrates that no clinician provided him any medication, talked to him, visited with him, checked on him in his room. Eventually, he's released. If protocol is filed, he's released when he's no longer a danger to himself or others. Or if he's not cooperating, they can just not cooperate and be released. There's many things that happen in these institutions that somebody can go there and just not take treatment. They cannot receive treatment and they'll get released. So in this case, that's the part in a stipulation that an investigation should have been done. If you're looking at the records, you want to see something. You want to see something that was there that says, okay, he received X amount of treatment. He received this. Did you receive a pill? I don't know. So that's from Mr. Sullivan's failed in his ability as an attorney. That's his responsibility. You don't stipulate to something unless there's hard facts there that they can bring in and instantly just show such as if you're going to do a drug case. And they've got the drug report to this. It's 0.5 grams of methamphetamine. You really want to bring in the lab technician to say, this is what I did when you can just stipulate to that. Yeah, you would stipulate to that. You don't stipulate to something where there's no evidence. And that's my point here is that there's a litany of things that should have taken place. Had he received treatment in that facility. There's a duty to report that within 24 hours to the state police. If they found him to be a threat to himself and he's receiving treatment, they must report that to the state police. That would not affect parties' liability under the statute. That you under which your client was charged. Are you talking about the Floyd statute? No, I'm talking about the statute under which he was charged. It doesn't matter whether a clerk did or didn't give notice to the state police. Well, it does matter in this instance as far as the attorney doing his work because if nobody was notified, if all of these people who shall report to the state police to revoke somebody's Floyd card, don't report. First off, the clerk, the doctors, the police officers, none of those people report to the state police to revoke. Travis's Floyd card for mental health reasons. How is Mr. Rynkings supposed to know he was receiving the treatment? All of these people fail and only think he was revoked for was for being a non-resident, which is a misnomer because if you're a non-resident, you're not required of a Floyd card. So the second they revoke you for being a non-resident, you're exempt from Floyd. But that's the only thing that Mr. Rynkings knew that Travis's guns were taken away for because the trans-wilt county's sheriff's department. But that's a factual question about what he knew. And like many of the issues in the case, your position has the problem of having factual findings going the other direction. Correct, right? The trial judge made findings. Well, he made findings based upon stipulations that weren't appropriate because Mr. Rynkings had objected to those stipulations. Well, what was the one issue that he didn't stipulate to? The one issue he didn't stipulate to? He would, they were willing to stipulate to the return of a firearm. Right, and that's another interesting issue because there was never an argument by your client that returning the firearm was not covered by the statute. There was never a statutory construction argument that returning isn't the same as giving. Well, the argument was made in the motion to dismiss. But it wasn't a question of statutory construction. It was a question of over-breath, which seems to assume that the statute may have covered it. Whatever an argument made that returning isn't giving. So I'm not sure that the stipulation really, are you closed that? Are you saying because Mr. Sullivan stipulated to in that number five stipulation that were gave it back? No, what I'm saying is he never built an argument that said returning does not equal giving. He never made that argument. So the import of the stipulation seems to fade when that argument isn't made. I think that he did so in the sense that they'd actually changed the language in the question because Mr. Sullivan then said, did you return instead of gave? And that is the ambiguity that was brought up in that motion was that there's many meanings that were given. I hope, but what legal issue in the case does it relate to? If it had been given, I'm sorry, returned instead of give, what legal issue in the case would have been affected by that? Just the statutory language that he actually gave him that he returned something that wasn't his. He returned those to the rifle owner. He didn't give him anything because he had no possession of that argument was never made. By Mr. Sullivan, which was his problem and that was an effective on his part because he stipulated he even said that. As your pilot briefs say he was ineffective for not making the statutory construction argument. I didn't put it that way because the fact that he stipulated to it after he said and even said he didn't, and providently, that in effectiveness would have been because he didn't make that argument at trial. He should have made that argument at trial, but he didn't. He just relied upon the fact that that motion had already been filed. He adopted it and then he stipulates to something he's trying to argue, which is total in competence on his part. If you're an attorney, you stipulate to something, then you're going to argue it. But it was never argued. All that was argued was that the statute was unconstitutionally vague because it was unclear whether it included return as well as giving. I would say that the non-argument of it is a display of incompetence on attorney Sullivan's part because Mr. Ranking can't make that argument. He can't present these arguments at trial. That's not his job. That's Mr. Sullivan's job. And is it a strategic decision which arguments you make? I don't know what strategy would have helped there. You're arguing the fact that the statutes ambiguous and then you stipulate to it. And then at trial, you put the question out there and then you change the language to make sure it says return. So that falls strictly back to Mr. Sullivan. It doesn't have any to do with Mr. Ranking because he's just going by what is attorney's telling him to do and direct examining him. He's trying to answer questions that are being asked. The first question on the stipulation is, did your client object and there's a factual finding that says he did not. The court made that. Yes. That's where they come from. So we would have to find that finding to be against the manifest way to the evidence. Correct. And that's why bringing these other parts about the statutory requirements that took place, that there's no reason that a competent attorney would have stipulated to these things when you've got that. That's the second issue about whether that's competent strategy. But the first question about whether you're a client objected, the factual finding by the trial court is going against you. Well, he's saying he didn't object at trial. Like he's both sustained up and jump up and down and say I object when it's attorney. That's overstating. He doesn't have to stand up in the middle of his own bench trial and say I didn't agree to these stipulations. You're a quack, you're a attorney with your elbow, you discuss with him, his friend from Bradley passes a note up his wife who contests all of these things. He says something to the attorney, that happens all the time without disrupting the court proceedings and none of that occurred and back to justice, dorties, you're kind of going up hill. When you say the trial court said I believe these witnesses, these witnesses do not have credibility. I find the attorney was competent or fine, it was not ineffective. You say he is. Tell me about that journey. Well, in his situation like that, and again, the part about him objecting, even Mr. Holly and his commentary back when we were in there was saying he didn't stand up, he didn't say anything, he didn't object. But the fact that the court found Mr. Sullivan credible, that's his judgment. Credit land competent. And competent. You know, that's many times Mr. Sullivan and my question of him, he could not answer question specific to what did you do here, did you have any documentation? It was always, well, I don't remember that, but I'm sure I did this. And I know I had witnesses that were there and said he didn't do this. They just fell back, I guess, because perhaps the court just decided because Mr. Sullivan and attorney, he'll believe him instead, even though he couldn't present facts and specifics as to why he did these things or when he did them, just that he did them. When you ask specifics, you don't get an answer. It's like, well, I don't know. There was anything I ever, I ask him, did you ever produce anything and show it to him? Well, I don't know if I ever showed it to him, but I know we discussed it and I don't know when, but I'm sure one of these meetings we discussed it. Right, but you haven't shown us your argument today, we've discussed it and we're still getting the chest. I don't know that discussing it as opposed to writing it is absolutely essential to say he understood and he agreed. But what's irrefutable is the fact that, on January 11, Mr. Ranking sent him, Mr. Sullivan, I note, I don't agree to these. Right, and we know that there was some other edits, we don't know exactly they were. Well, Mr. Sullivan doesn't know either because when I asked him, he didn't know either. The only thing we know is that something was produced on that date and given to the court, on that date. And so he can say whatever he wants, he just wanted to produce it, and if he knows, as an attorney, if you know your client's objecting to something, and you haven't presented to him in writing, you're giving this in writing. Yeah, but let's not flatten the timeline here. Right. There was a series of events and there was a, he was shared these things in writing. He said I object and they had subsequent conversations. I mean, one inference from that, maybe one the trial court drew, is that the client accepted the attorney's strategy on these things to not make an issue of that and to focus on the issue of what he heard at the occurrence, which seemed like a reasonable choice. But the court heard nothing from Mr. Ranking about any of that. I believe your time's expired. Thank you, Judge. Yeah. Mr. Goldman. Thanks, I can't see you. Yeah. Matthew Goldman for the people may have pleased the court. Council. I'll address the sole point that was brought up on opposing council. Before you do that, I want to ask you a question. Had a tragedy not occurred with this case, have ever been brought? That, unfortunately, I doubt now without getting into the mind of the prosecutor's of the charges. I certainly think that it's possible. I once worked as a public defender and I did defend against a client who was accused of transferring a firearm illegally to her son. There was no tragedy that came out of that case. It was a class for felony, luckily my client had a get in probation. This is not the first time I've seen a case like this and this is not the first time that I've seen a case like this brought about due to certainly much less tragic circumstances than we see here. Thank you. Yes, Your Honor. Regarding these stipulations, as Your Honor's know, the two criteria that have to be satisfied for an attorney to enter into stipulations like we see in this case. It's first that no objection be made. As Your Honor's noted, there was no objection certainly in court. I understand that opposing council brings up this written email that was sent months previous to the trial date. But I think that this kind of written communication fails to count as an objection for the purposes of this case for several reasons. First, the timeline of when this was sent, it makes it so that this is not any kind of objection that it would be regularly recognized by a court. This is not what we had. I'm sorry. If that was the only communication between attorney and client, you're saying that wouldn't be an objection. In the content itself, I would also argue that that cuts against it be an objection. Because it was a conditional objection. It was, I'm objecting so we can talk more. And certainly we heard testimony, or we saw testimony in this case, that they did talk more several times more prior to the trial itself. So, insofar as an objection was made, the condition on which it was made was actually satisfied prior to the trial. Additionally, the timeline, and out of court objection made months and months prior to the trial itself, this is not like the defendant standing up in the court room. It's turning to death. But there is no case law that you've provided that suggests it has to happen in the court room by standing up and objecting. If the attorney has been told by the client, I don't want to do that. That's an objection. Well, the Supreme Court, while it didn't hold directly that in court objection is required, it did state that no objection was made in court when it was making cessation. I apologize. I'm forgetting the case off the time I had, but I cited my brief. And again, while I don't think that it's a hard and fast requirement that the objection be made in court or the day of court, I think the timeline in which this so-called objection was made, is something this court can consider in coming to its determination, along with the language of that purported objection as well. And the fact that it was a conditional objection in that, so we can consider it. Is it a factual finding, meaning the question of whether somebody objected, how they object, that's a factual finding. Correct. You have that exactly right here, Honored. This was a factual finding made by the court where they looked at all of the evidence that was presented, the testimony of all the witnesses, and the court determined based upon everything that had before it, that there was no objection made that it would essentially count for the purposes of this requirement. Additionally, whether or not this stipulation was a matter of trial strategy, I would argue that it clearly was, courts have regularly recognized that narrowing the issues before the court is a legitimate trial strategy, especially in a case like this where it's narrowing the issues to one that is a little bit more complicated, men's right at the mental state. What about the interaction between the word gave and the constitutional argument about the subject of a business? It seems as though those are across purposes, so what would be the strategy in not saying returned? Well, the stipulations were essentially factual stipulations for trial, and that was a legal argument that wasn't really being argued at trial. Nobody would at that trial decide well because of this constitutional issue that was raised beforehand. We're going to suddenly find him not guilty because of a factual problem at trial. And what it closed the door, I'm sorry. Well, I guess the question though I have is it's really difficult to reconcile how counsel's argument that he wanted to challenge on appeal, the use of the word gives, and that was the entire basis of the pretrial motion, but then turns around and stipulates to that very fact in stipulation number five. And your answer is what I would say about that issue is that even if that were a problem, there was no possible prejudice from this because everybody including the court agreed that that issue is preserved and certainly opposing counsel was able to raise that issue without problem in this court. So that the goal, which was preservation of that issue, was achieved despite any lackluster wording in that particular stipulation. So even if there was a possible error there, there was no possible prejudice due to the way that the court interpreted this stipulation. But there was no argument made at trial that as a matter of statutory construction returning is different than giving correct. Right. And had he wanted to, he couldn't have because he just stipulated that he gave it. Yeah. And I don't think that this was a fact argument that whatever could have been made at trial, it's rather obvious as your honor is recognized that returning a firearm does fall under the umbrella of give. Does that? Because I think one of the rules of statutory construction is that you look at like words and a sentence to help each define the other and selling has a certain connotation. It's going from one person to the other, giving has a certain connotation going from one person to the other as a matter of gift. This is a case where the defendant stepped up and took those firearms and it has the air of maybe no good deed going unpunished. It seems as though that would be a plausible argument to make. Wouldn't it be? Again, you're on, even if there was some possibility of making that argument, defense councils are allowed to narrow the issues and pursue one defense even of exclusion of others. So even if this is an arguably maritorious argument, which I made disagree with, the council is not obligated to make this argument. And what you're describing is a fact argument that potentially could have been made into the trial court, but the fact that it wasn't made didn't damage the ability to raise the constitutional argument. Defendant was not a law enforcement official. He didn't have a right to take the weapons. He was given the weapons by his son. What legal right would he have had to say no if his son demanded their return? It's not his property. He's holding it. He's holding it by consent of the owner. What legal right would he have to say no? Your honor, unfortunately, I haven't investigated that issue at length. My recommendation would be to surrender to the sheriff. Somebody was concerned about that, but I would have to investigate that issue further before I could give a firm answer. Same sheriff who said he didn't need to. Well, the sheriff said he didn't need to under different grounds based upon the residency issue. But knowing what he knew about his son's treatment from mental illness, if his son's demanding these firearms threatened to sue, I would say the proper course of action is to fully apprise the sheriff of what's going on, including those mental health issues, and then surrender them to the sheriff so that it's out of their hands. Did he have the opportunity to surrender them to the sheriff? Unfortunately, I don't think that that appears in the record. I am not sure. Well, where did the council made the state? I think council made the statement. Yeah, it choice. You could surrender them. He called the sheriff so on. He was. He was. What did they say? What does the record show they said to him? The record shows that they had a discussion about whether or not the son was able to possess firearms based upon the possible residency issue. And they discussed matters like what if he's passing through the state, things like that. But they didn't discuss the mental health. No, I didn't ask about the, I asked about. Did they say you can give them to us? Or do you have your son since he's moving out of state? What does the record show about that? Regarding the surrendering of the firearms, I, Would you like that? I don't discussion. Did that discussion occur with the sheriff's office? I don't recall that happening. I don't care. I don't care. I recall them talking about selling the firearms potentially, but I don't recall surrender it to the sheriff. I'm talking about topic of conversation. Council. Yes. I may. Are you that the defendant has forfeited the argument? That the trial court aired when it denied the motion for the directed defiant. However, the defendant raised that issue in the post trial motion and the state responded in the trial court ruled on that issue on the merits. So I guess my question is why isn't that sufficient than just court to address that? Your honors. The courts in Illinois have held that if you failed to raise the argument again at the close of evidence that that causes forefature. I also address the issue on its merits because I recognize that Your honors might have misgivings about finding forefature under those circumstances. But I think that the case law is pretty clear that even if you raise this later on, failure to raise this argument again at the close of the defendant's case and chief does amount to forefature. So your honors. I'm happy to address any other questions on the other issues that post-inconsal didn't discuss or continue argument on those issues. Does anybody have any further questions? Well, the argument has been made in the briefs that the defendant was essentially totally unaware of him being taken to a mental facility and that he remained unaware of that. He did not know that his son was going to receive treatment if he did receive treatment. He did not know that it was a mental health facility. He does not know that his son was taken away. New that his son was taken away in an emergency vehicle and escorted by police. What about that argument? Somehow he never knew that his son was committed, doing mental health facility. Yes, Your Honor, that pertains to the second and third arguments related to the denial of the motion for directed verdict and the finitive guilty. Your honors, the issue with that is that there's a lot of circumstances. I think everybody would agree there's no direct evidence that the defendant said something like I know my son was taken to this place for mental health treatment. But the circumstantial evidence in this case is quite strong. The defendant was present in the CBS parking lot while his son was talking loudly about these delusions. There's a couple of very important points that I want to highlight here. The officers testified that the son Travis stated eventually that he would go to a unit point hospital, but he was going there against his will. This is the kind of statement that I would argue creates the inference that even Travis knew that he was going to be going there for an involuntary mental health treatment. Additionally, your honors, this happened directly in front of the defendant. Now, I certainly understand that the defendant claims he couldn't hear these things, but viewing the evidence in light most favorable to the state, the inferences that the defendant heard all of this, the defendant was present, he was able to hear these things. And the court had ample basis to find based upon the things that were happening directly in front of the defendant, the things that were said directly to the defendant, that defendant not only knew that his son was being taken via squad car to this hospital, which this hospital is chosen specifically because it had a behavior of health unit, but also why he was being taken there. And in addition to that, there were additional facts that came out in the defense's case in chief that supported this finding that a defendant admitted that he called EMS himself. Now, he claims he doesn't know why. He called that number that he didn't know exactly what that number was for. But it's a mental health services organization. The inference there is that he called this number because he knew what kind of help his his kid needed. Additionally, he acknowledged that he went to visit his son at the behavioral health unit on a couple of occasions. He admitted that this is a unit that is locked and secured. Now, he claims he never asked anybody including the son about any kind of treatment that he was being given there. I would argue that that's a little preposterous. But even if the you were to accept that, the fact that he had to sign in, go through locked doors. And he knew this is a behavioral health unit and in the stipulations, it states that he knew that his son was admitted there. All of that taken together creates the very strong inference that this defendant knew the kind of treatment that his son was getting there. Council, how do you address the issue though that was raised that no treatment, fact, was provided? I understand there's arguably an absence in the record, but while you're arguing the circumstantial evidence, what circumstantial evidence would you say supports the court's finding that treatment was provided? The circumstantial evidence that supports that the treatment was provided. The stipulation is that he was a patient under the law. The kind of question was to why he did receive the kind of treatment that would satisfy the statute. I think it's been disposed with. Now, council raises an additional point that there's essentially a lack of evidence that would contradict that stipulation. I don't think that that's a proper question for this court today. I think that that's something better raised via collateral attack because we actually don't have that information before us. It's not a part of the record. It's not something that I could have reviewed. And based upon that, if there are documents that contradict it, I mean that is the purpose of things like a post-conviction petition. But based upon what we have here, there is nothing that contradicts that stipulation and that stipulation should be what controls at least for today. Does that answer your question? Thank you. Your honors, if there are no further questions, I would simply ask for the remainder on my brief. Thank you. All right, we're a bottle council. Can I get you started on a question? I'm sorry, I'll. Can I get you started on a question? Absolutely. Well, you said it has to be for or there has to be treatment given. Are you referring to the definitions in the statute under Section A? Underpatient. Yeah, and it says a patient is admitted for mental health treatment. And receives. Or does it say received? It doesn't say received. I'm looking at an excerpted, so you couldn't correct me if I'm wrong. But I'm saying I'm looking at it where it says admitted either voluntarily to a mental institution for mental health treatment. Under this, are you under the statute? Yeah, I'm under Section A. E. Definition of patient in a mental institution. As I say, I'm ready to be corrected if there's something that I'm overlooking. Yeah, I've got to find the specific statute here. But they do explicitly explain or define both what a patient is. And underpatient. Patient in a mental institution means the person was admitted either voluntarily or involuntarily to a mental institution for mental health treatment. If that's the extent, I think the fact that he may have refused it wouldn't change the fact that that's why he was admitted. Yeah, two mental health four mental health treatment. So he could refuse it. It doesn't mean that's not the reason he was admitted. But we don't know, again, I understand what you're saying. In this case, you're on the unique thing about this case is that the court, everybody wanted to focus on the fact and to answer one of your questions about the firearms Mr. Ranking did contact the sheriff's department. It's on record. There's a transcript of it. And he had in Travis had even spoken to them and that's what Mr. Ranking asked about. Did you guys tell Travis that he could have these firearms if he's just passing through? I could, did he could have them? And they said yes. So you said it was okay, yes. But they were answering a specific question and he was speaking globally. Right? He was speaking about any possible impediment having those firearms. It was specifically about the fact that they were the ones that had Mr. Ranking take the firearms and hold them for Travis. They're the ones who contacted him once the revocation took place. I agree and it's kind of a kick in the teeth, right? Because he took him for one reason. Correct. But the law has a provision that would prevent their being returned or given for other reasons. If he knew about that, that's correct. We're still back in the same place. I don't feel like that conversation with the the steeplees or the sheriff would change that. But the affirmative defense is there that was never presented by Mr. Sullivan. He rejected that as an affirmative defense. And he also refused to bring in. That's a classic matter of strategy, right? Which ones you push? And for the reasons we just discussed, it may not have had legs. Well, the bottom line when Travis was tried down in Nashville for this crime. He presented an insanity defense. And the jury found him guilty and did not adopt an insanity defense or mental illness defense. Everybody how would that affect these events? Well, it goes to the fact that you've got a jury with all of this evidence that they're getting about the sensitive to place. But everybody's putting it back on Mr. Ranking that he's the one guy who should have known when nobody else can recognize it. The course of recognize it's dialed back a little bit. No, there's no one arguing that he had to diagnose mental health condition. It's just that he had to know that he was admitted for mental health treatment. And that's what the statute requires. Four mental health treatment. Yes. And again, if you go back to the park where there should have been a directed finding because the two deputies added nothing to this. The two officers, their testimony, did nothing to further the state's case. Prior to Mr. Ranking Testifying. At that point, all the thing knew was that one of them followed the car to Methodist gave a thumbs up and he drove away to the emergency room. They didn't know where he went. They couldn't diagnose anything. They couldn't. But what about your client? At that point, it's what did he know at that time? And all he knew is that they took him away. They even admitted that Mr. Ranking wasn't that close. They didn't tell him personally what was taking place. Only that he was a car length away and should have heard. So at this close of the state's case, ASA Holly said that they're only thing they had to prove here. Their burden was the show that Mr. Ranking knew that Travis was going there to receive mental health treatment. Their evidence provided nothing to that. I thought the deputies wanted more of the deputies testified that they said, you know, your son is having these difficulties. And he needs, he needs help, he needs treatment. And that they asserted they believed the people nearby closer than a car length away. But even if a car length away, we're listening and heard what they said. Well, they think that, but that's not evidence that it actually took place. And so they testified to it. They testified and then they on cross-exam. They also testified that they didn't know if Mr. Ranking is heard or not. Understood. Understood. But they know what they said. They know what they said, but then that Mr. Sullivan brought out the fact that none of them were experts in mental health. They don't know where Mr. Ranking or they don't know where Travis went. They just know he went away to the emergency room. One of them knew the other one didn't know anything because he stayed there. So the state didn't provide any evidence to get beyond a reasonable doubt to show that Mr. Ranking knew. The one burden that they said they had to prove. Their evidence did nothing to further that. Okay. You're actually out of time. I appreciate it. I'm glad you're on the way. I'm going to let you sum up, but I do want to ask you. There's a lot to be inferred. He wasn't in an accident. He wasn't injured. There was no reason in the record suggested as to why he would be going to the hospital. Other than the inference that it was, it was a mental health issue. It wasn't as though there wasn't a clear context for where he was going and your client visitors him there later. Correct. That came out afterwards. But he also talked about they didn't give him any information when he was there. It's a privacy issue. He's in the adults. They didn't have to give him anything. Correct. But he does. He does no other knowledge of why else he'd be there. He knows he didn't break his leg. He didn't have a fever. He went to the hospital. If we believe, the trial court believed that he heard enough to know that he was getting mental health treatment, that's kind of how she wrote. It comes out of what did he hear with his difficulty. He talked about surrounding environmental issues. If you hear a car, it's promoted more than just the surrounding just the voice that you're going to hear. What last comment for we? No, in summary, thank you. I would just go by what my argument was here, Judge. Thank you. All right, thank you. Thank you both, council.