[00:00:00] Speaker 00: I believe petitioners are here remotely. [00:00:03] Speaker 00: And then we have Mr. Zadie in person. [00:00:08] Speaker 00: And so just a question, the person that I see is that Mr. Vasu? [00:00:17] Speaker 00: Yes, Your Honor, Conor Vasu. [00:00:18] Speaker 00: All right. [00:00:18] Speaker 00: And you're a certified law student. [00:00:20] Speaker 00: And my understanding is that we have Philip Tory, supervising attorney, is standing by. [00:00:25] Speaker 03: Yes, Your Honor. [00:00:27] Speaker 03: All right. [00:00:28] Speaker 00: Thank you. [00:00:28] Speaker 00: Okay. [00:00:30] Speaker 00: So we love having students argue and you've had a chance to see all the other arguments and each side has 10 minutes total and so you're the petitioner so we're ready to hear from you. [00:00:46] Speaker 03: Thank you, Your Honor. [00:00:46] Speaker 03: Good morning, Your Honors, and may it please the Court. [00:00:48] Speaker 03: My name is Connor Vasu. [00:00:50] Speaker 03: I'm a clinical law student under the supervision of Clinic Director Phil Torre. [00:00:54] Speaker 03: We represent the petitioner, Roberto Diaz-Boiseau. [00:00:57] Speaker 03: I'd like to reserve two minutes for a bottle in this case. [00:00:59] Speaker 00: Okay, proceed. [00:01:00] Speaker 03: I will... Thank you, Your Honor. [00:01:02] Speaker 01: I will focus my argument today on why... You're a student at Harvard Law School, yes? [00:01:07] Speaker 03: Yes, Your Honor. [00:01:08] Speaker 01: And did you have my brother as one of your professors? [00:01:12] Speaker 03: Unfortunately not, Your Honor. [00:01:14] Speaker 01: Well, that's good, because since I know your education has now been seriously neglected, I'm happy to hear from you. [00:01:23] Speaker 00: So are you worse or better than your brother, Judge Rakoff? [00:01:26] Speaker 01: He's my smarter, younger brother. [00:01:28] Speaker 00: Oh, OK. [00:01:30] Speaker 00: All right. [00:01:30] Speaker 00: Go ahead. [00:01:32] Speaker 03: Thank you. [00:01:32] Speaker 03: Thank you. [00:01:33] Speaker 03: So I'll focus my argument today on why subsection 3C [00:01:37] Speaker 03: of the organ assault statute at issue in this case is not a categorical match with the removal ground under our definition or the government's definition of the removal ground. [00:01:46] Speaker 03: First, the organ statute does not require proof of harm to a child. [00:01:51] Speaker 03: Subsection 3C can be satisfied in two ways, when a child witnesses an assault or is in its immediate presence. [00:01:57] Speaker 03: Now, we agree with the government that witnessing an assault satisfies the harm standard, but the minimum conduct here, which is relevant [00:02:03] Speaker 03: under the categorical approach is immediate presenced. [00:02:06] Speaker 03: The Aloa case in our briefing shows that a defendant can be convicted when a child is in the immediate presence of an assault without the jury finding the child was awake or sentient. [00:02:16] Speaker 03: Such a child is not actually harmed. [00:02:19] Speaker 03: Second, immediate presence in subsection 3C of the Oregon Assault Statute does not require proof of a sufficient risk of harm to a child. [00:02:26] Speaker 03: There's no element under that subsection that requires jurors to agree on a certain risk level to the child in order to convict. [00:02:33] Speaker 03: And we think this, this case is closely analogous to this court's decision in Menendez versus Whitaker, a case in this court applying the Sorem standard. [00:02:41] Speaker 03: Menendez held first that there was no actual harm to a child in a sexual contact of a minor statute because the defendant in that case, the child did not need to be aware of the nature of the sexual contact. [00:02:53] Speaker 03: That's the same here and that a defendant here can be convicted if a child sleeps through the entire. [00:02:58] Speaker 00: So the case that you cite analyzes what statute is it a California statute. [00:03:04] Speaker 03: Your honor it's California two eighty eight C one. [00:03:06] Speaker 00: Okay, so just from our perspective, we're not really comparing the two in the sense that your job here is to convince us that 163.1603 doesn't fit within 1227, right? [00:03:27] Speaker 00: So we're not, it's not whether it's the same as the California statute, right? [00:03:31] Speaker 03: Well, yes, Your Honor, we think that the California statute, this court's amendment is highly persuasive to the extent your honors adopt a similar standard to SORUM because in that case, this court found that you could not infer a sufficient risk of harm because there was no sufficient risk of harm type language in that statute. [00:03:50] Speaker 03: Likewise, we don't have any element in the statute that requires the prosecution to prove [00:03:55] Speaker 03: nor the jurors to agree on any risk level to the child in order to convict, let alone a sufficient risk of harm to the child. [00:04:01] Speaker 00: Well, so if we read 1227 as including child endangerment, if that's the way that we read it, is the Oregon statute's requirement that the assault be committed in the immediate presence of the child sufficient to bring the conviction within 1227? [00:04:16] Speaker 00: And if so, why not? [00:04:20] Speaker 03: No, Your Honor, because immediate presence, the statute [00:04:23] Speaker 03: the relative case law defined in the statute, and the jury instructions, none of them require the jury to agree to make any sort of a finding on any level of harm to the child, let alone a sufficient risk of harm to the child. [00:04:36] Speaker 03: And we think that this is similar to the case. [00:04:38] Speaker 04: But why isn't that inherent in being in the immediate presence of an assault? [00:04:44] Speaker 03: Well, Your Honor, the relevant test here is comparing the minimum elements of the statute. [00:04:49] Speaker 03: And under the minimum elements here, all the jury needs to agree is that the child is in the same physically unseparated area. [00:04:56] Speaker 04: Yeah, immediate presence. [00:04:57] Speaker 04: And so if a child's in immediate presence of an assault taking place, the risk of harm to the child is obvious. [00:05:05] Speaker 03: Well, I would disagree, Your Honor, in that the jury is never required to make any decision under this case about the requisite level of risk of harm to a child. [00:05:14] Speaker 03: The jury is not parsing any factors that relate to the child's risk. [00:05:17] Speaker 04: Well, why does that matter? [00:05:18] Speaker 04: I mean, if the jury finds that the child was in the immediate presence of an assault taking place, it's just inherent in what that finding means is that there's a risk of the child. [00:05:28] Speaker 03: I would disagree, Your Honor, and I think that there is a distinction between reading the statute as immediate presence where there is a high likelihood of harm to a child, which is what the government would like to read the statute as, and immediate presence, which does not require the jurors to agree and concur. [00:05:42] Speaker 03: I mean, even if all jurors in a particular case agree that there is a certain risk level to a child, they still do not have to make that [00:05:49] Speaker 03: finding and concur on any sort of a risk level to the child in order to convict. [00:05:53] Speaker 03: And we think that is a distinction that matters. [00:05:55] Speaker 03: That's why the support in Menendez found there was no sufficient risk requirement. [00:05:58] Speaker 04: I don't know. [00:05:58] Speaker 04: I mean, why couldn't Oregon just say that the risk of harm factor is subsumed or is met by the immediate presence factor? [00:06:07] Speaker 03: As is its prerogative, Oregon can write a statute in this way. [00:06:11] Speaker 03: But if you look to Menendez, Menendez specifically cites Mathis here. [00:06:14] Speaker 03: And then his rights that while the statute issue at that case may reflect a legislative judgment that conduct often presents a risk of harm. [00:06:21] Speaker 03: The increase limited to the constituent parts of the crime is legal definition and our argument. [00:06:25] Speaker 03: Your honor is that there's no, unlike all the other cases today, unlike the, for example, the Rivera Mendoza case, the government specifically points to case law and the statute where there's a likelihood of harm finding baked into that statute here. [00:06:36] Speaker 03: The prosecution does not have to prove risk of harm, let alone a sufficient risk of harm, nor need the jury concur on any requisite level of risk of harm. [00:06:45] Speaker 03: And this court has never inferred a sufficient risk of harm under SOARM into a statute where absent [00:06:51] Speaker 03: that risk of harm language, that sufficient risk of harm language. [00:06:55] Speaker 04: So you're saying that a state, Oregon, cannot transform the risk of harm element, prong, into a factual prong. [00:07:04] Speaker 04: Is that your argument? [00:07:05] Speaker 04: So say that Oregon legislators say risk of harm, in this case, equals immediate presence of assault. [00:07:13] Speaker 04: You're saying they can't do that. [00:07:14] Speaker 03: Well, Oregon could certainly write the statute in a different way as they did in another statute. [00:07:18] Speaker 03: Oregon can certainly write the statute in this way. [00:07:23] Speaker 03: But what Oregon has not done here is include a risk of harm element in the statute. [00:07:27] Speaker 00: What way is the statute written? [00:07:29] Speaker 00: My understanding is it contains four sections allowing assault in the fourth degree to be classified as a felony. [00:07:37] Speaker 00: While a person might qualify for more than one section, each contains a separate requirement. [00:07:43] Speaker 00: Why shouldn't we read the statute as divisible? [00:07:46] Speaker 03: Well, we believe that we should should read the statute as divisible yearliner. [00:07:50] Speaker 03: We think that for two reasons. [00:07:52] Speaker 03: One, there's a case law organ anti merger law shows that if you commit multiple aggravating offenses, these offenses aren't separately punishable. [00:08:00] Speaker 03: So we think that it's best read as one element of aggravation and the circumstances are simply alternative ways to commit that aggravating element and would also point your honors to Reynolds versus state, which we discussed in their briefing reply briefing on page 20. [00:08:13] Speaker 03: which contemplates that it would be legally sufficient to issue a general indictment charging a defendant with felony fourth degree assault without specifying a particular circumstance. [00:08:23] Speaker 00: So you're trying to say there's no mens rea here? [00:08:27] Speaker 03: No, Your Honor. [00:08:27] Speaker 03: We think the mens rea here is recklessness, and we do not contest that the relevant mens rea satisfies the removal ground here. [00:08:34] Speaker 03: We're specifically focused on the actus rea. [00:08:37] Speaker 04: And on that question, I thought your argument was that child abuse requires actual injury to the child. [00:08:42] Speaker 04: But you're not doing that today. [00:08:44] Speaker 04: You're saying risk of harm is enough. [00:08:46] Speaker 03: So Your Honor, we do in our briefings advance an argument about harm to it, the statute requiring harm to a child. [00:08:52] Speaker 03: We do think that that's the best reading of the statute. [00:08:54] Speaker 03: But even if Your Honors come to a conclusion, a different conclusion, our statute would still not fall, be a categorical match under that reading. [00:09:01] Speaker 03: I see. [00:09:01] Speaker 03: Thank you. [00:09:02] Speaker 00: Would you like to reserve the balance of your time? [00:09:04] Speaker 00: Yes. [00:09:04] Speaker 03: Thank you, Your Honor. [00:09:05] Speaker 00: Thank you. [00:09:07] Speaker 00: All right, we'll hear from the government. [00:09:14] Speaker 02: Good morning, Your Honor. [00:09:15] Speaker 02: Zimmeron Zadie again for the government. [00:09:17] Speaker 02: Let me just start by comparing very quickly the challenge here. [00:09:20] Speaker 01: If you were in private practice, [00:09:23] Speaker 01: You'd be paid by your time, and you'd be a rich man by the time we finish this morning. [00:09:30] Speaker 02: But here I am, Your Honor, a humble civil servant. [00:09:34] Speaker 00: And we appreciate that. [00:09:35] Speaker 00: Thank you. [00:09:36] Speaker 00: Just like we appreciate law students, we appreciate civil servants. [00:09:39] Speaker 02: I appreciate that, Your Honor. [00:09:42] Speaker 02: So big picture, as my friend just clarified. [00:09:45] Speaker 02: So they do have a challenge here to the generic definition. [00:09:48] Speaker 02: But on that, just to distinguish this case from the other ones you've heard today, this is just the challenge to endangerment overall. [00:09:54] Speaker 02: It's not just to negligence, because this statute doesn't encompass negligence. [00:09:57] Speaker 02: It's recklessness, as my friend just said. [00:10:00] Speaker 02: So that's a heavier lift. [00:10:02] Speaker 02: Again, we don't need to get into that. [00:10:03] Speaker 02: It sounds like they don't want to raise that argument. [00:10:04] Speaker 00: Well, does he, does the petitioner argue that the [00:10:09] Speaker 00: that 163.1603 does not come within 1227 because it does not require any mens reas to the child victim. [00:10:21] Speaker 02: That's one of the arguments, Your Honor. [00:10:23] Speaker 02: I don't know that I just raised that. [00:10:24] Speaker 02: But in the brief, their argument is that as to the act, it requires at least recklessness. [00:10:29] Speaker 02: But then for one of their arguments is that there's no mens rea as to the child, because it doesn't say anything in that aggravating factor subsection. [00:10:37] Speaker 02: But that's never been required under any generic definition that anybody has contemplated. [00:10:41] Speaker 02: And certainly under the matter of Velasquez-Harrera definition, the mens rea is only required as to the act itself. [00:10:47] Speaker 00: So it appears the Oregon statute simply requires the presence of the child. [00:10:52] Speaker 02: Correct. [00:10:52] Speaker 00: Why does this show the requisite reasonable probability of harm for inclusion under 1227? [00:10:59] Speaker 02: So there's two ways to violate that aggravator subsection, the being a witness or being present, immediately present. [00:11:08] Speaker 02: Petitioner has conceded that being a witness would be emotional abuse and so that would be child abuse. [00:11:13] Speaker 02: And then the question then becomes, and I think that's really what this case boils down to, is being in the immediate presence, which Oregon has defined as being in the same physically unseparated space as the victim, whether that creates a risk of likely harm to a child, be it physical, emotional, something else. [00:11:30] Speaker 02: And we think it's clear that it does because you are talking about a physical assault on a domestic, somebody in the domestic context, with somebody right next to you or in the same physically unseparated space, [00:11:41] Speaker 02: And in a manner in which petitioners conceded, if they witness it, so even taking their example of somebody who's sleeping, the question is just, is there a risk that they would likely just wake up and witness it, petitioner concedes that would be abuse, or that the physical altercation would spill over into the child themselves? [00:11:59] Speaker 02: And so the question becomes, is that a risk of likely harm? [00:12:01] Speaker 02: We think it absolutely is. [00:12:03] Speaker 02: We dispute strongly petitioner's contention that the words risk need to be in the elements of the statute or in the statute somewhere itself. [00:12:11] Speaker 02: The categorical approach is upside, and I realize that's not something that is said very often in this court, but is that you're comparing the conduct encompassed in elements to the conduct encompassed in elements. [00:12:22] Speaker 00: Well, I would like to get rid of it. [00:12:24] Speaker 00: I think most of us that I've been on the court over 20 years, and that would be, if I could get rid of it, I think that would be my greatest accomplishment. [00:12:33] Speaker 02: I did not mean to poke the bear of the categorical approach, but I think the comparison that you do in the categorical approach is you're looking at elements on one side and elements on the other and what conduct is comprised in those elements. [00:12:45] Speaker 02: So if you have an ongoing physical altercation with somebody and a child in the immediate physical presence, the question is just, is there a risk of likely harm inherent in the elements of that offense? [00:12:57] Speaker 02: We think there absolutely is here. [00:12:59] Speaker 02: And again, petitioners conceded that the witness part of that aggravating subsection has already been satisfied. [00:13:06] Speaker 02: We understand petitioners to have conceded in their apply brief a few of the other arguments they'd originally raised, that this is not directed toward the child. [00:13:13] Speaker 02: And then the other one, I believe there was another version of that that petitioner had also conceded. [00:13:18] Speaker 02: So I think we're really just looking at the immediate physical presence part of this. [00:13:22] Speaker 02: For the reasons I just mentioned, we think that is satisfied. [00:13:25] Speaker 02: As to divisibility, Your Honor, I'll just very briefly say, but I think we're very clearly divisible here. [00:13:30] Speaker 02: Petitioner's original theory of why this statute was indivisible was based on something that this Court has now refuted in Vasquez-Valle. [00:13:36] Speaker 02: We're looking at a single crime, yes, not discrete offenses, but that has multiple disjunctively listed aggravating penalties. [00:13:45] Speaker 02: And this Court has made clear in Vasquez-Valle that those are, and Oregon state law has made clear that those alternatives are meant to be treated as elements. [00:13:53] Speaker 01: So picking up, this is probably something well beyond the power of this court, but I'll throw it out for consideration anyway, based on the point that Judge Callahan just mentioned. [00:14:09] Speaker 01: So what we're required to do in each of these cases is, first, not deal with the actual facts of the case itself. [00:14:22] Speaker 01: but deal with a speculation as to what might be the least case that might be brought within the speculated category of such cases under the state statute. [00:14:44] Speaker 01: And then we have to speculate as to whether that least case [00:14:53] Speaker 01: falls within or does not fall within the federal statute even though the federal statute doesn't have any reason to apply to that remote case because in many of these situations the remote case was never even brought. [00:15:14] Speaker 01: And then we have to speculate as to whether it would be likely that a prosecutor would ever bring that remote case. [00:15:24] Speaker 01: So this entire approach foisted upon us by the Supreme Court is one of multiple speculations. [00:15:39] Speaker 01: And I wonder whether there comes a point where it goes beyond the power of an Article III judge. [00:15:45] Speaker 01: I raise that only because you were about to say you had nothing further to add, so I knew this was time I could impose those points for the record, so to speak, but I mention it for what it's worth. [00:16:05] Speaker 00: I don't know if you have to answer. [00:16:06] Speaker 00: I don't. [00:16:07] Speaker 02: I mean, I didn't understand it to be a question, Judge Rakoff, but I will just clarify, because the speculative [00:16:15] Speaker 02: ordinary case starts, it starts to sound like Sessions versus de Maia on constitutional vagueness. [00:16:20] Speaker 02: I think I agree with everything that you just formulated as what the categorical approach does, except that it sounds a little bit more speculative. [00:16:27] Speaker 02: You are still looking at the sort of least minimum conduct [00:16:31] Speaker 02: in the elements of a statute, and then just saying whether that matches up with the generic definition. [00:16:35] Speaker 02: So I just wanted to push back just on the part of that characterization that was speculative, or in the ordinary case, because that was the problematic part of the unconstitutional vagueness holding in Sessions versus de Maia. [00:16:46] Speaker 02: But otherwise, yes. [00:16:49] Speaker 02: Yes is my answer. [00:16:50] Speaker 02: There are problems here, and for now they are yours, I'm sorry to say. [00:16:55] Speaker 02: But I have no other – I have nothing else if Your Honor has no questions. [00:16:58] Speaker 00: I don't think we have any additional questions. [00:17:00] Speaker 00: Thank you for your argument. [00:17:01] Speaker 00: Thank you very much. [00:17:02] Speaker 00: All right. [00:17:02] Speaker 00: And you have a little rebuttal time. [00:17:05] Speaker 03: Thank you, Your Honor. [00:17:06] Speaker 03: Just one quick point, Your Honors, is that under the categorical approach, Your Honors are required to compare the least culpable conduct, as Judge Rakoff was talking about, with the elements of the state statute to the removal ground. [00:17:16] Speaker 03: And here, there is no element in the state statutes that requires the prosecution to prove [00:17:21] Speaker 03: nor the juries to come to any relevant conclusion about a risk of harm to a child, let alone efficient risk of harm. [00:17:28] Speaker 04: Your friend mentioned, it's a good point though, you conceded that witnessing the assault satisfies risk of harm. [00:17:37] Speaker 03: Yes, your honor. [00:17:38] Speaker 04: So why couldn't it, being in immediate presence then, isn't it just a matter of the chances the child wakes up or opens his eyes? [00:17:47] Speaker 03: That could very well be, Your Honor, but even under that circumstance, the jury is still not required to come to any conclusions. [00:17:54] Speaker 04: Well, but even under the witnessing problem, the jury's not required to make that finding either. [00:17:59] Speaker 03: Well, we would say under witnessing, that's actual harm rather than a sufficient risk of harm. [00:18:04] Speaker 03: If you look to, for example, the case Mendoza-Sorio that other counsel cited, we think that emotional or psychological harm is inherent in witnessing, whereas with the sufficient risk of harm, that would require an element in the statute. [00:18:18] Speaker 04: But why would harm be allowed to be implicit while risk of harm has to be explicit? [00:18:24] Speaker 04: I don't understand that. [00:18:25] Speaker 03: Your Honor, I think that's what this Court has held in Menendez, and that's what the Board has held in its published decisions following Sorem. [00:18:31] Speaker 03: It's specifically required when it comes to risk of harm offenses to have an element in the statute that have risk of harm, and they've said that in Sorem, they've said that in Rivera-Mendoza, and that's what the government even argued in Rivera-Mendoza's case, that it required some case law or element there. [00:18:46] Speaker 03: Unless there are further questions, Your Honor, we request you grant the petition for review. [00:18:51] Speaker 03: Thank you very much. [00:18:52] Speaker 00: All right. [00:18:52] Speaker 00: Well, I want to thank you both for your argument here. [00:18:55] Speaker 00: And I want to thank Harvard for having a clinic that allows representation. [00:19:03] Speaker 00: And I think that Mr. Diaz-Boiseau has been well represented by a law student. [00:19:10] Speaker 00: And you're welcome back any time. [00:19:12] Speaker 00: And you're welcome back any time. [00:19:16] Speaker 00: Mr. Seide, even though I saw you a lot today. [00:19:20] Speaker 00: So thank you both for your helpful argument in what are difficult cases and this court, this matter will be submitted and this court is in recess. [00:19:38] Speaker 00: This court for this session stands adjourned.