The judge didn’t address the question raised in our motion. He either misunderstood it, or deliberately side-stepped it. Either way, we should ask him to reconsider his denial.
It would be like if Filipovic (my attorney) said to prosecutor Skrocki (who was not wearing a jacket and tie) “you can’t come in this restaurant without a jacket and tie.” Then skrocki replied by saying “I never where white athletic socks with dress shoes. NEVER! I never do it! I don’t even own a pair of whte socks!” And the judge then ruled in Skrocki’s favor and ordered Filipovic to let Skrocki into the restaurant on account of the fact that Skrocki is in fact wearing black socks.
There’s a word for this type of trick where you change up the subject to avoid an argument you can’t win. It’s called “casuistry.” Or the more common saying is “Apples and Oranges.” Also known as “pulling a fast one.”
The one simple argument we raised was this: Since the 9th Circuit struck down the government’s main theory of guilt (finding that it lacked federal jurisdiction and was not even a crime in the first place) we are now left with no way of knowing what theory the jury relied on to convict me. Did they rely on that theory, the one that was later thrown out? Or did they rely on some other theory? We have no way to know. All we know for sure is that the prosecution repeatedly urged the jury to rely on the very theory that didn NOT hold up on appeal. So the rules require that I get a new trial on the conspiracy count, and at the new trial the government can’t present the theory that the 9th Circuit said is no good.
That’s the simple argument we presented. That’s the argument the court didn’t address in his order.
Skrocki made some argument about jury instructions that had nothing at all to do with the question at hand. And the judge joined in and commented on that off topic conversation. Skrocki lead him down a bunny trail, where he DENIED our motion without adjudicating the question it raised.
We need to point this out to the judge and ask him to reconsider.