[00:00:03] Speaker 04:
Council, could you start by after your appearance telling me whether I've pronounced your client's name correctly?

[00:00:11] Speaker 02:
Yes, your honor may it please the court I believe it's Jesse Chavez Echeverria.

[00:00:16] Speaker 02:
Okay, good.

[00:00:16] Speaker 02:
Thank you And my name is Elizabeth Daly.

[00:00:19] Speaker 02:
I'm representing Mr. Chavez Echeverria, and I'd like to reserve three minutes for rebuttal if that's okay with you

[00:00:25] Speaker 02:
The crux of the disagreement in this case is not about which categorical approach applies, but how to define the attempted use of physical force for purposes of the guidelines force clause.

[00:00:36] Speaker 02:
Linehan resolved that question by holding that the force clause incorporates the same substantial standard applicable to federal and co-aid attempt and generic attempt.

[00:00:46] Speaker 02:
Because Oregon's test is broader, there is no match.

[00:00:50] Speaker 02:
The government's position is that Linehan adopted a broader model penal code based standard for a substantial step.

[00:00:57] Speaker 02:
I don't find that in the opinion.

[00:00:59] Speaker 02:
Linehan took its substantial step definition directly from precedent articulating the probable assistance test.

[00:01:06] Speaker 04:
Can I interrupt you there because I think we're going to spend the whole time talking about this much about Linehan, right?

[00:01:12] Speaker 04:
And it seems to me that this case is a little tough to parse.

[00:01:17] Speaker 04:
I'll grant you that.

[00:01:19] Speaker 04:
But it seems that the court starts at headnote 14, where it's talking about the attempted use of physical force in it, and it cites Taylor.

[00:01:28] Speaker 04:
Of course, there's three Taylors in this area, but the most recent one.

[00:01:31] Speaker 04:
And that's looking at the traditional rule.

[00:01:34] Speaker 04:
And then we come into, at the top of the next page, where it has these sound bites, these quotations that are entirely consistent with the traditional test, the model penal code test.

[00:01:47] Speaker 04:
And then cites, I think what your problem is, it cites Getzky.

[00:01:50] Speaker 04:
I don't know how to pronounce it, Getzky.

[00:01:52] Speaker 04:
Other cases that discuss the gloss that the Ninth Circuit has put on this, the probable desistance test.

[00:01:59] Speaker 04:
But I'm just noticing that the court doesn't apply probable desistance.

[00:02:04] Speaker 04:
And the other problem is that the pin sites for these cases are two pages that don't discuss the probable desistance test.

[00:02:11] Speaker 04:
So I know that's kind of a long question.

[00:02:13] Speaker 04:
But those are my problems, and I wanted to put that out there so you can respond.

[00:02:16] Speaker 02:
Thank you, Your Honor.

[00:02:18] Speaker 02:
The first point I wanted to respond to is this distinction between the traditional test and the model penal code, or I think the court said that those were the same thing.

[00:02:26] Speaker 02:
No, I didn't say they're the same thing.

[00:02:28] Speaker 02:
That's what I heard.

[00:02:28] Speaker 02:
I'm sorry.

[00:02:29] Speaker 04:
No, no problem.

[00:02:30] Speaker 04:
I probably wasn't very articulate, but the Ninth Circuit has applied this traditional test for a long time.

[00:02:37] Speaker 04:
Then in Buffington, I think it's in 87,

[00:02:40] Speaker 04:
We started citing this Fifth Circuit case, and Buffington says what we mean by that general language is, and then we incorporate this probable desistance test, but we don't always apply it.

[00:02:51] Speaker 04:
So it's a little fuzzy, and at least that's what I think the state of the law is.

[00:02:55] Speaker 04:
Please correct me if you think I'm wrong.

[00:02:57] Speaker 02:
Well, Your Honor, I understood the probable desistance test to be this court's interpretation under common law of what it means for conduct to go beyond mere preparation.

[00:03:09] Speaker 02:
So I'm getting that from Getzke, where they say, a defendant's conduct crosses the line between preparation and attempt when it unequivocally demonstrates that the crime will take place unless interrupted by independent circumstances.

[00:03:20] Speaker 02:
And what page is that?

[00:03:21] Speaker 02:
I do not have a pinpoint site on that.

[00:03:24] Speaker 04:
I'm not trying to be difficult.

[00:03:26] Speaker 04:
I think it's from the pages that the Linehan opinion doesn't adopt.

[00:03:31] Speaker 04:
That's my problem.

[00:03:31] Speaker 02:
Right.

[00:03:32] Speaker 02:
And so the question is, did Linehan adopt some sort of higher level, more general definition of a substantial step and not drill down into the probable distance?

[00:03:41] Speaker 00:
Or does it?

[00:03:41] Speaker 00:
And this is, I think, a variant of the question Judge Christen was asking you.

[00:03:47] Speaker 00:
At least one way to read this case law is to say, with respect to the enumerated clause, not an issue in this case, our case law applies a probable desistance test.

[00:03:59] Speaker 00:
But with respect to the force clause, we apply the model penal code test.

[00:04:09] Speaker 00:
At least as I look at other circuits, particularly when dealing with the statute involved in Lenahan, they're not applying a desistance test.

[00:04:18] Speaker 00:
They seem to be applying a model penal code test.

[00:04:21] Speaker 00:
So I'm trying to figure out whether our case law says one test for enumerated clause offenses, but a different test for force clause offenses.

[00:04:31] Speaker 02:
I think those are what the crux of the case is about.

[00:04:34] Speaker 00:
Yes.

[00:04:35] Speaker 00:
Thank you.

[00:04:36] Speaker 00:
Now give me a good answer.

[00:04:37] Speaker 02:
Help me.

[00:04:39] Speaker 02:
I read the case law to say this court has only ever defined one meaning for attempt.

[00:04:45] Speaker 02:
And it's the common law meaning.

[00:04:46] Speaker 02:
And it's interpreted that to mean probable desistance.

[00:04:49] Speaker 01:
Let me ask you a version of the questions you've already been asked.

[00:04:53] Speaker 01:
Would you be making the same argument, or should we come to the same result you're seeking, if Lenahan had not been decided?

[00:05:00] Speaker 01:
I mean, how important to your argument is Linehan?

[00:05:03] Speaker 01:
Or do we get there anyway just because of our pre-existing case law?

[00:05:07] Speaker 02:
I think Linehan, the answer to both questions is yes.

[00:05:10] Speaker 02:
Linehan is incredibly important.

[00:05:12] Speaker 02:
And I think you come to the same conclusion without Linehan because it was right.

[00:05:16] Speaker 00:
But if we read Linehan as adopting the model penal code test, that poses difficulties for you, does it not?

[00:05:24] Speaker 02:
Correct.

[00:05:24] Speaker 02:
That's the government's position.

[00:05:25] Speaker 02:
I don't think there's a dichotomy that

[00:05:28] Speaker 02:
that Oregon's standard is consistent with everybody else who uses the model penal code.

[00:05:33] Speaker 02:
Oregon's an outlier in the depth to which it applies this definition of substantial step that doesn't require

[00:05:43] Speaker 00:
Much for preparation to go beyond mere preparation as the Ninth Circuit is held and I think the Ninth Circuit is more consistent with other federal Let me let me focus on the model penal code for a second is the Oregon test Broader or narrower than the model penal code as I read the Oregon cases they seem to adopt the model penal code

[00:06:05] Speaker 02:
They do, but they also go fully into the commentary, the examples that the model penal code has set out.

[00:06:13] Speaker 02:
And not every circuit that says we follow the model penal code does that.

[00:06:17] Speaker 02:
I want to go back to what the force clause means independently of Linehan.

[00:06:20] Speaker 02:
Because the first clause didn't give us a definition of attempted use.

[00:06:25] Speaker 02:
And when there's no definition provided, we assume that Congress meant what it said, the common law definition of the term at the time.

[00:06:32] Speaker 02:
Attempt has been in federal statutes for decades, long before the reformist model penal code.

[00:06:39] Speaker 02:
So I feel like it's an incorrect view of the law to say that everybody uses the model penal code except for the Ninth Circuit.

[00:06:46] Speaker 02:
I think the Ninth Circuit's probable assistance test is the common law test.

[00:06:50] Speaker 02:
I'm sorry.

[00:06:50] Speaker 00:
Is there a difference between an attempted offense, a crime, and the attempted use of force, which by itself is not a crime?

[00:07:00] Speaker 00:
I'm having some concern that reading our interpretation of the word attempt in connection with an offense is different than what we ought to be doing when we're talking about the use of force.

[00:07:12] Speaker 02:
Well, I think that does drill down to which categorical approach we're applying.

[00:07:16] Speaker 02:
Taylor said that attempted use of physical force means a substantial step towards the use of force.

[00:07:21] Speaker 02:
But it said, we're not going to define helpfully.

[00:07:24] Speaker 02:
We're not going to define that for you.

[00:07:26] Speaker 02:
And Linehan does, right?

[00:07:27] Speaker 02:
Linehan tells us, we're going to look at these cases.

[00:07:29] Speaker 02:
And as Judge Christin pointed out, there were pinpoints to the definition of substantial step there.

[00:07:34] Speaker 02:
But this court has only ever said substantial step means one thing, and that's probable assistance.

[00:07:39] Speaker 02:
There is no case law that says it doesn't include

[00:07:41] Speaker 00:
That's where I want to push back on you a little bit.

[00:07:43] Speaker 00:
I understand the confusion that comes out of the citations and prior cases, but right after that, Judge Bress says, and that means the model, what substantial step means is what the model penal code says.

[00:07:55] Speaker 02:
I disagree.

[00:07:56] Speaker 02:
That language, the sum verification that the government has latched onto and said that's in accordance with the model penal code, the only jurisdictions that use that language are Oregon and the Ninth Circuit.

[00:08:08] Speaker 00:
But forget what jurisdictions use it.

[00:08:10] Speaker 00:
Doesn't Judge Bress say that's the test in that hand?

[00:08:14] Speaker 00:
I mean, I understand that his reasoning may be inconsistent.

[00:08:17] Speaker 00:
I don't want to criticize somebody who's not here, because he's citing probable desistance cases and things like that.

[00:08:23] Speaker 00:
But when he gets down to the money line, doesn't he say it's the model penal code test?

[00:08:28] Speaker 02:
No, Your Honor.

[00:08:29] Speaker 02:
There's no mention of the model penal code.

[00:08:31] Speaker 02:
The language that's used is used in Oregon, and it's used in the Ninth Circuit.

[00:08:35] Speaker 02:
Where does he apply the probable desistance test?

[00:08:38] Speaker 02:
Your Honor, Linehan does not discuss the probable desistance.

[00:08:42] Speaker 02:
We'll concede that.

[00:08:43] Speaker 02:
But probable desistance is the definition of what goes beyond your preparation.

[00:08:48] Speaker 02:
That's what this court's case law holds.

[00:08:50] Speaker 04:
It would be so odd for him to adopt the probable desistance test and then not apply the probable desistance test.

[00:08:57] Speaker 02:
I think he does apply the probable desistance test.

[00:08:59] Speaker 02:
Where?

[00:09:00] Speaker 02:
That's what I asked earlier.

[00:09:01] Speaker 02:
Where does he do that?

[00:09:01] Speaker 02:
Because it's part and parcel of going beyond mere preparation.

[00:09:05] Speaker 02:
And so when they discuss why section 373 and the transportation of explosives goes beyond mere preparation, they cite Soto-Barraza, which said conduct goes beyond mere preparation when it satisfies the probable desistance test.

[00:09:21] Speaker 02:
So this is part and parcel of how this court has always defined attempt.

[00:09:25] Speaker 02:
The substantive offense.

[00:09:27] Speaker 04:
the substantial step conduct.

[00:09:29] Speaker 04:
I'm talking about for the substantive offense.

[00:09:32] Speaker 02:
For the substantive offense.

[00:09:33] Speaker 04:
Which is why Judge Hurwitz asked the question that he asked about

[00:09:37] Speaker 04:
one definition for the enumerated offense clause and one for the force clause.

[00:09:41] Speaker 04:
That's the gist of it.

[00:09:42] Speaker 02:
And substantial step has always meant the same thing in this circuit.

[00:09:47] Speaker 02:
Can I also just point out that if it's not this well-defined body of case law we have, then what does it mean?

[00:09:54] Speaker 02:
And I don't think the government has provided us an answer, and I don't think interpreting it to mean something that Linehan never said.

[00:10:00] Speaker 02:
Would tell us so what does go beyond mere preparation?

[00:10:04] Speaker 01:
This is going to take you over time and then our presiding judge will I'm sure accommodate whatever you need, but The night circuit is unusual in having its Probable desistance test the other circuits.

[00:10:21] Speaker 01:
I don't think have it so

[00:10:24] Speaker 02:
I don't think that's true either.

[00:10:25] Speaker 02:
And that certainly goes beyond what's been briefed in this case.

[00:10:28] Speaker 02:
But I was looking this morning for other circuits using probable assistance, and I found a number of circuits that do apply that test.

[00:10:37] Speaker 02:
And again, that hasn't been briefed.

[00:10:38] Speaker 02:
I wonder if that would be as appropriate for supplemental briefing.

[00:10:43] Speaker 00:
Enforce clause cases.

[00:10:45] Speaker 02:
As opposed to substantive offense cases.

[00:10:47] Speaker 02:
It goes beyond the briefing in this case, so I don't think I'm prepared to answer that.

[00:10:51] Speaker 04:
I don't know of one, in case it's helpful, I don't know of one that does this in a force clause context only for substantive offenses.

[00:10:58] Speaker 02:
Your Honor, I guess my answer to that is that it's the conduct and substantial step is what Taylor tells us is the conduct, so the court has to define substantial step.

[00:11:08] Speaker 04:
Do you want to?

[00:11:08] Speaker 04:
Well, actually, you're over time.

[00:11:10] Speaker 04:
I am over time.

[00:11:11] Speaker 04:
Which I did.

[00:11:12] Speaker 04:
No problem.

[00:11:13] Speaker 04:
When you come back, we'll put a minute on the clock.

[00:11:14] Speaker 04:
I appreciate that.

[00:11:15] Speaker 04:
Not at all.

[00:11:16] Speaker 04:
We'll hear from opposing counsel, please.

[00:11:27] Speaker 03:
May it please the court.

[00:11:28] Speaker 03:
Suzanne Miles for the United States.

[00:11:30] Speaker 03:
I agree with Ms.

[00:11:31] Speaker 03:
Daly that Linehan is the key here.

[00:11:34] Speaker 01:
Well, she didn't quite say that.

[00:11:35] Speaker 01:
She said we'd get to the same answer without Linehan.

[00:11:39] Speaker 03:
Well, I think Linehan is controlling.

[00:11:41] Speaker 01:
So maybe we do disagree.

[00:11:43] Speaker 01:
Yeah, she did not say she needed Linehan.

[00:11:44] Speaker 01:
She said quite the opposite.

[00:11:46] Speaker 04:
You think Linehan is controlling, so now tell us what Linehan says.

[00:11:49] Speaker 03:
So what Linehan says is that under the force clause, this court applies the traditional meaning of attempt, which is

[00:12:00] Speaker 03:
the conduct that shows, advances the criminal purpose.

[00:12:07] Speaker 03:
In this case, it is conduct that advances the use of physical force and strongly corroborates that purpose.

[00:12:15] Speaker 04:
So I care less about the decision, well, the outcome, and more about, of the line of hand, I mean, and more about the decision tree and making sure that our law is clear so it's fair, so people can understand what the rule is.

[00:12:28] Speaker 04:
And Linehan starts by harking back to Taylor.

[00:12:32] Speaker 04:
Taylor looked at it consistent with your remarks to a traditional interpretation, took a dictionary off the wall and said, but Linehan didn't do that.

[00:12:43] Speaker 04:
It turned to our case law.

[00:12:45] Speaker 04:
Any want to enlighten us about why we did that here or what we should draw any conclusion from that.

[00:12:52] Speaker 03:
My understanding is that when Lenahan pulled from Taylor is that when we have a legal term, we look to the legal lineage of that term in Taylor.

[00:13:00] Speaker 03:
I agree with you.

[00:13:01] Speaker 03:
the court pulled off Black's dictionary.

[00:13:03] Speaker 03:
And if we didn't have Linehan, I would be arguing that you should be doing the same thing for Attempt.

[00:13:08] Speaker 03:
Me too.

[00:13:09] Speaker 04:
And I think, my next question is if we had, you probably did what I did.

[00:13:14] Speaker 04:
I pulled out down Black's law dictionary.

[00:13:16] Speaker 04:
I did.

[00:13:16] Speaker 04:
And don't we get to the same place?

[00:13:19] Speaker 03:
Pretty much we do.

[00:13:19] Speaker 03:
I mean, what Black says, and I can check it against yours, is that an overt act is done with the intent to commit a crime, but that falls short of completing the crime.

[00:13:28] Speaker 04:
Right.

[00:13:29] Speaker 04:
It's essentially the model penal code.

[00:13:30] Speaker 03:
It's essentially the model penal code.

[00:13:32] Speaker 04:
Yeah, I think that's right, too.

[00:13:33] Speaker 04:
So then when we look at the little bit of Linehan that causes me a bit of confusion.

[00:13:37] Speaker 04:
And in fairness, I don't think this was briefed in Linehan.

[00:13:40] Speaker 04:
2020 hindsight is always perfect.

[00:13:42] Speaker 04:
And other judges, I'm sure, look back at my opinions and say, what was she talking about?

[00:13:45] Speaker 04:
But here we are, and trying to figure this out.

[00:13:48] Speaker 04:
And he's made it clear that he's looking for the traditional

[00:13:52] Speaker 04:
and the panel made it clear they're looking to the traditional test.

[00:13:56] Speaker 04:
And it's just the citation, I think.

[00:13:58] Speaker 04:
The only thing that trips me up is the citation to these two cases that use the probable desistance test.

[00:14:05] Speaker 04:
What do we make of that?

[00:14:06] Speaker 03:
Well, I think we make what Your Honor had said, is that it does go to those cases, but it doesn't go to the portion of those cases that applies the probable desistance test.

[00:14:15] Speaker 03:
So there is a lot of common ground between probable desistance and the MPC.

[00:14:19] Speaker 03:
Both of them say that a substantial step needs to be an overt act, and it needs to strongly corroborate the intent to commit the completed crime or to commit the crime of violence.

[00:14:29] Speaker 03:
The question is, how far down that line do we need to get?

[00:14:32] Speaker 03:
And probable desistance says that the defendant has to do everything in his power.

[00:14:38] Speaker 03:
Get says, that's what Moss says, the defendant has to do everything that's within his power.

[00:14:43] Speaker 00:
Did you agree that's not the test in Oregon?

[00:14:45] Speaker 03:
That is not the test in Oregon.

[00:14:47] Speaker 03:
And, Your Honor, that's not the test, really, as you've said, in nearly every other circuit.

[00:14:52] Speaker 04:
And we know that when we look at cases like... For this clause, as opposed to this substantive offense.

[00:14:57] Speaker 03:
Yes, Your Honor.

[00:14:58] Speaker 03:
I would draw your attention to Garcia Jimenez, in which this court looked at

[00:15:02] Speaker 03:
New Jersey's attempt provision which follows the MPC and looked at that under the enumerated offense clause and said it's a technical mismatch for Ninth Circuit's federal attempt.

[00:15:15] Speaker 03:
But that same attempt provision in New Jersey was looked at by the Third Circuit in a different case and it matched the Third Circuit's.

[00:15:23] Speaker 03:
federal generic attempt to test.

[00:15:25] Speaker 03:
So we know we at least have a disconnect there.

[00:15:28] Speaker 03:
So, I'm sorry, I feel like you want to ask me a question and I'm not giving you the chance.

[00:15:32] Speaker 00:
I do, but if somebody else wants to go first.

[00:15:34] Speaker 04:
No, go right ahead.

[00:15:35] Speaker 04:
It's so rare that you're not getting your questions in.

[00:15:38] Speaker 00:
I know.

[00:15:39] Speaker 03:
You've got me under... I've been practicing all week.

[00:15:41] Speaker 00:
You've got me on my good behavior.

[00:15:42] Speaker 03:
I also feel like I'm standing too close to the microphone.

[00:15:45] Speaker 01:
You're doing great.

[00:15:46] Speaker 01:
Okay.

[00:15:47] Speaker 00:
Yes, we like loud.

[00:15:48] Speaker 03:
Okay, it feels like it's making a hissing sound.

[00:15:49] Speaker 00:
I don't want to be annoying you.

[00:15:51] Speaker 00:
Let's just say we can't figure out what Lenahan says.

[00:15:53] Speaker 00:
just for purposes of your question, or that it didn't exist.

[00:15:56] Speaker 00:
And we were approaching this given the instructions of the Supreme Court in Taylor.

[00:16:02] Speaker 00:
What would the outcome be?

[00:16:04] Speaker 03:
I think that the outcome would be that you look to Black's law dictionary for what

[00:16:08] Speaker 03:
what attempt means, what the general legal definition of attempt means, which is to commit some overt act that confirms your criminal intent.

[00:16:19] Speaker 03:
I think that's what we should be doing.

[00:16:21] Speaker 03:
Lenahan didn't do that.

[00:16:22] Speaker 04:
And I'm not... Oh, excuse me, but it did... I just interrupted you.

[00:16:26] Speaker 03:
Go ahead.

[00:16:27] Speaker 03:
But I think it gets us essentially to the same place.

[00:16:29] Speaker 03:
Because as we said, I think that Black's dictionary, essentially, it catches the traditional meaning of attempt.

[00:16:39] Speaker 03:
And I think we do need to look at what Linehan did in terms of its holding and how it applied it.

[00:16:45] Speaker 03:
Because not only when you look at Linehan's words and how it gives us the definition of substantial step, it doesn't mention probable desistance.

[00:16:53] Speaker 03:
When it applies substantial step to 844D, it does not apply probable assistance and its outcome is not supportable.

[00:17:03] Speaker 03:
if you apply probable desistance.

[00:17:05] Speaker 03:
844D says that I need to either send or receive a bomb, an explosive, that is readily detonable with the knowledge that the recipient intends to detonate it and hurt somebody else or that I intend to detonate it and hurt somebody else.

[00:17:24] Speaker 03:
That, while I would admit, is an overt act that shows an indication that I'm intending to engage in physical force.

[00:17:35] Speaker 03:
That is not me committing every act that is in my control to achieve physical force absent

[00:17:43] Speaker 03:
my interruption by independent circumstances, which is what probable dissonance requires.

[00:17:48] Speaker 04:
So you're saying that Linehan doesn't apply the probable dissonance test.

[00:17:52] Speaker 04:
And I have to agree with you.

[00:17:53] Speaker 04:
But I think you're also saying that had it applied, the result would have differed.

[00:17:57] Speaker 04:
Absolutely.

[00:17:58] Speaker 04:
Can you just remind us that the crime in Linehan is solicitation to do what exactly?

[00:18:05] Speaker 03:
to transfer an explosive with the knowledge or intent that it would be used to kill, injure, or damage property.

[00:18:14] Speaker 00:
And what was it that stopped the crime from being completed in Atlanta?

[00:18:20] Speaker 00:
I mean, what was it that stopped it?

[00:18:22] Speaker 00:
Right.

[00:18:22] Speaker 00:
The substantive crime, not the attempted crime.

[00:18:24] Speaker 03:
Right.

[00:18:24] Speaker 03:
So nothing stopped the substantive crime.

[00:18:28] Speaker 03:
The crime is complete as soon as I send you a bomb, knowing that you're going to use it, or I receive a bomb.

[00:18:34] Speaker 03:
Without it ever blowing up.

[00:18:35] Speaker 03:
Without it blowing up.

[00:18:36] Speaker 03:
That was a completed crime.

[00:18:37] Speaker 03:
There's no need for it to blow up.

[00:18:38] Speaker 03:
Right.

[00:18:38] Speaker 00:
So the question is... And it was about solicitation, not about attempted.

[00:18:41] Speaker 03:
It's the solicitation to do that.

[00:18:42] Speaker 03:
Right.

[00:18:42] Speaker 03:
And so the question is, once I've acquired this bomb with the intent to blow it up, have I taken all steps within my control to achieve the use of physical force?

[00:18:54] Speaker 03:
And this is exactly what was argued in Linehan.

[00:18:56] Speaker 03:
The defense's argument in Linehan was all about the probable assistance test and arguing that this statute doesn't meet it.

[00:19:05] Speaker 03:
That is what the oral argument focused on.

[00:19:07] Speaker 03:
And the court did not apply that test.

[00:19:09] Speaker 01:
So even though it cites the cases,

[00:19:12] Speaker 01:
using that test.

[00:19:13] Speaker 03:
Well, even though it cites some of the cases using that test, because those cases also carry with it the common traditional definition.

[00:19:21] Speaker 03:
It just adds this extra component in asking us what a substantial step really means, how much conduct, how close.

[00:19:29] Speaker 01:
It's interesting to me, because I guess I wasn't aware of how Lenahan had been argued.

[00:19:35] Speaker 01:
Given that it was argued, it's interesting that Lenahan doesn't even discuss it.

[00:19:38] Speaker 03:
I agree.

[00:19:39] Speaker 03:
I went back and listened to the argument this morning for that very point.

[00:19:41] Speaker 04:
Did they brief it in Lenahan?

[00:19:43] Speaker 03:
I didn't check the briefing.

[00:19:44] Speaker 03:
I listened to the argument, and I didn't check the briefing.

[00:19:46] Speaker 03:
I can go back and do that.

[00:19:48] Speaker 03:
The opinion reads as though it wasn't really litigated.

[00:19:50] Speaker 03:
I agree.

[00:19:51] Speaker 04:
But it does tell us, I think, hopefully, it gives us very specific pin sites that I think are meaningful.

[00:20:02] Speaker 04:
I interrupted you.

[00:20:03] Speaker 00:
No, I'm trying to figure out, tell me why the outcome would be different in Lenahan had the probable assistance test been applied.

[00:20:10] Speaker 03:
Because acquiring a weapon with the intent to use it to commit physical violence does not require me to have taken every step towards the commission of physical violence.

[00:20:25] Speaker 00:
But because the crime was solicitation of the mailing of this stuff, it seems to me the crime would have been complete if he had the knowledge

[00:20:34] Speaker 00:
once the solicitation was done.

[00:20:37] Speaker 03:
And that's why we have to separate attempt to do the substantive crime, whether you've completed the substantive crime.

[00:20:43] Speaker 03:
Here what we're talking about is have you used or attempted to use physical force?

[00:20:50] Speaker 03:
take in every step you possibly can to use physical force, to complete physical force, to achieve that force.

[00:20:57] Speaker 03:
Unless some outside act interrupts you.

[00:21:01] Speaker 03:
So if I'm just holding the weapon, even though it has the capability of doing it,

[00:21:06] Speaker 03:
Even if I have the intent to use it for that purpose, but I haven't left my apartment, I haven't gone to my destination, I haven't found my target, there's so many additional steps that a defendant would have to do once they have that bomb even if they form the intent to actually achieve physical force that the defendant is still responsible for doing without any additional interruption.

[00:21:32] Speaker 03:
And so that's what takes it into,

[00:21:34] Speaker 03:
achieving the MPC's view of a substantial step because clearly I've taken an overt act that confirms that I have the intent to do damage, to do force.

[00:21:47] Speaker 04:
Council, you're over time.

[00:21:48] Speaker 04:
Could you please wrap up?

[00:21:49] Speaker 03:
Oh, I'm sorry.

[00:21:49] Speaker 04:
That's right.

[00:21:50] Speaker 04:
If you could wrap up.

[00:21:51] Speaker 04:
Can I ask one more question?

[00:21:52] Speaker 01:
Of course, yes.

[00:21:53] Speaker 01:
I want to, in a way, ask Judge Hurwitz's question again.

[00:21:56] Speaker 01:
If the crime at issue in Linehan was solicitation, why isn't it complete as some of the solicitations made

[00:22:03] Speaker 01:
irrespective of what acts may or may not follow.

[00:22:06] Speaker 01:
I don't understand why you're telling us that in Lanahan itself, the probable desistance test, help me out here.

[00:22:14] Speaker 03:
I will.

[00:22:15] Speaker 03:
So because the question that we're trying to answer is not, did the defendant attempt 844D?

[00:22:22] Speaker 03:
The question is, any defendant who solicits

[00:22:28] Speaker 03:
the taking of a bomb, the transport or achievement of a bomb with this intent, do they necessarily use physical force or attempt to use physical force?

[00:22:41] Speaker 04:
In the act of soliciting?

[00:22:42] Speaker 03:
In the act of soliciting.

[00:22:44] Speaker 03:
In completing that crime, can you have that crime complete and ever have a lack of intent or a lack of attempt to use physical force?

[00:22:52] Speaker 03:
And I think the answer to that is clearly yes.

[00:22:56] Speaker 04:
Anything further?

[00:22:57] Speaker 04:
OK.

[00:22:57] Speaker 03:
Thank you, Your Honors.

[00:22:58] Speaker 03:
I'm so sorry for using your time.

[00:22:59] Speaker 04:
Not at all.

[00:22:59] Speaker 04:
Thank you for your patience with our questions.

[00:23:01] Speaker 04:
Madam Clerk, would you put two minutes on the clock, please?

[00:23:05] Speaker 04:
I know I said one, but we've really, you've had a lot to listen to.

[00:23:09] Speaker 02:
Thank you, Your Honor.

[00:23:11] Speaker 02:
I do believe the argument here has gone beyond the briefings.

[00:23:14] Speaker 02:
And so I would suggest supplemental briefing to a more targeted question.

[00:23:18] Speaker 02:
That said, I believe substantial step is what we're looking at.

[00:23:21] Speaker 02:
And this court's case law has been interpreting the common law meaning of that.

[00:23:25] Speaker 02:
And so I think that it's appropriate to interpret Linehan as saying, we're going to use the meaning of substantial step that we've always used, which is part probable desistance is part and parcel of that.

[00:23:37] Speaker 02:
Responding to whether Linahan does or doesn't apply the probable distance test,

[00:23:44] Speaker 02:
I think the defense had a strong argument that it didn't satisfy the probable desistance test, but the court emphasizes how close the required conduct has to be.

[00:23:53] Speaker 02:
They say an explosive means something that, quote, any part thereof may cause an explosion.

[00:23:58] Speaker 02:
And they say that's critical to our decision.

[00:24:00] Speaker 02:
And they say the will-be-used requirement in 844D, that the explosive will be used, creates a more imminent connection to a violent aim.

[00:24:08] Speaker 02:
So I don't think you can draw too many inferences from their actual application.

[00:24:14] Speaker 02:
I just, again, going back to the general legal definition and whether there's a difference between the traditional definition and what this court has always applied, the model penal code is a reformist definition.

[00:24:27] Speaker 02:
Attempt has been in the criminal code of federal law for much longer than the model penal code existed.

[00:24:33] Speaker 02:
And I believe that that is the definition that the Ninth Circuit has been interpreting.

[00:24:36] Speaker 02:
So I appreciate the court's time today.

[00:24:38] Speaker 02:
Thank you.

[00:24:40] Speaker 04:
Thank you both for your advocacy.

[00:24:41] Speaker 04:
It's a very excellent argument and really helpful to our decision so we appreciate it very much.

[00:24:47] Speaker 04:
We'll take that case under advisement and go on to the next case on the calendar which is Athee Creek Christian Fellowship versus County of Clackamas 24-5104.