[00:00:00] Speaker 03: How much time would you like to reserve for rebuttal? [00:00:03] Speaker 00: Five minutes, please, Your Honor. All right. Go ahead, please. Good morning, Your Honors. I'm Houston Goddard. I'm here on behalf of Mr. Henriksen. [00:00:10] Speaker 00: Murder for Hire's If Death Results element asks whether a death occurred, not how or why that death occurred. This is clear from the plain language of the element, which is phrased in the passive voice and contains no mens rea requirement. Without a mens rea requirement, this element does not require the intentional application of violent force and therefore cannot transform March for Hire into a crime of violence. [00:00:35] Speaker 00: The government takes a different view. The government asks this court to essentially rewrite the statute to include a mens rea requirement for the death resulting element. [00:00:46] Speaker 00: But this is not what the statute says, and this is not how any other federal crime with a death results variant works. The government argues that murder for hire is unique because it is the only federal crime with a death resulting variant where the mens rea for the defendant's conduct is the intent to cause death. [00:01:02] Speaker 03: Do you agree that the murder for hire statute intends that a murder be committed, whereas all the felony murder statutes don't have murder as their base felony? [00:01:13] Speaker 00: Thank you, Your Honor. The statute I was just going to jump to is the federal carjacking statute, where the mens rea attached to the defendant's conduct is the intent to cause death or serious bodily harm. [00:01:24] Speaker 00: which would satisfy the elements clause here. And the government's position with carjacking is that the mens rea stays with the defendant's conduct and does not carry forward to the death resulting element. That was the position the government took before the 10th Circuit in the United States v. Lowell, and the 10th Circuit agreed with the government. [00:01:44] Speaker 00: the logical consequence of the government's position there is that the same should hold true for murder for hire. And the government changes its position because it doesn't like the consequence of that position, which is that murder for hire with death resulting would not be a crime of violence. But the government was right in Lowell. The Tenth Circuit was right in Lowell, and the government's wrong here. [00:02:01] Speaker 02: One of the government's arguments is, of course, that the death results is actually in different provisions, in different statutes, and it's not connected in the same way. What's your answer to that with respect to this statute? [00:02:17] Speaker 00: Well, different statutes are worded differently. The kidnapping statute has the exact same structure as the murder for hire statute. The death results element is in the same place. So while it is true that there are certain statutes that are phrased certain ways, murder for hire is not unique in any way in where it places the death results element. [00:02:35] Speaker 04: As I'm looking at 1958, and it says, whoever causes another to travel in interstate commerce with the intent that a murder be committed, and then it has the variations, including of death results. Why can't I, or it seems to me the natural reading of that is the death results connects to the first part of the statute that says with the intent that the murder be committed, not that some other death might have happened. Right. [00:03:03] Speaker 00: Well, that is the – I understand the common sense appeal here. And I think the Fifth Circuit had a line. [00:03:09] Speaker 04: And it seems to me almost a common sense reading, not just common sense appeal. I mean I have trouble reading it to cover I'm on my way to murder somebody and I get in a car accident and kill somebody. And therefore I'm covered under the statute. [00:03:23] Speaker 00: I think here – I think the Fifth Circuit's recent opinion in Elkins is instructive, which was a stalking case resulting in death. government's argument there was exactly the same here the same word the the mens rea for the stalking should carry forward to the resulting death and the fifth circuit said there is common sense there's a lot of common sense in the government's reading of the statute but common sense is not the defining characteristic of the categorical approach and i think what we have to do here as as taylor instructs is really just look to the elements and the elements here is if death results in the passive voice which Dean has told us suggests there is no mens rea, and this court agreed in McDuffie. [00:04:03] Speaker 00: The only thing the government has to prove, and the only thing the government in this case did allege and prove, is that death resulted. There's no mens rea attached there. The government did not allege a mens rea in the district court. The jury was not instructed it needed to find a mens rea. [00:04:15] Speaker 02: I want to ask you about the jury instruction, which is that the government is not required to prove that the defendant intended to cause the death of the victim. How does that play in to your argument? Because I don't think you didn't make a waiver argument on that or closure, but that was the instruction agreed to, right? [00:04:41] Speaker 00: Right. I think Your Honor is making the point here that the government when it is seeking to convict someone, does not want to have the additional element that it has to prove. But now when it comes to the categorical approach and the question is whether that element exists for the purposes of determining whether the crime is a crime of violence, the government says that that needs to be proven. I think the point here is that I'm just going to repeat myself, but there is no mens rea attached to the death results element. [00:05:13] Speaker 00: As your honor points out, that's the position the government took at the district court, and that was the correct position. [00:05:20] Speaker 03: But doesn't it seem implausible that Congress would have intended the death penalty or mandatory life sentence in all of these accidental death hypos? [00:05:31] Speaker 03: It just seems implausible to me. [00:05:34] Speaker 00: I don't agree, Your Honor. I think what Congress has done here is said there are certain crimes that are just... [00:05:40] Speaker 00: Inherently dangerous, quite bad crimes. If you set out to hire a hitman to have someone killed and things fire out of control or things go wrong and a death results not exactly the way you had intended, Congress has said you are in the hook for that death. And I think that makes eminent sense. [00:05:58] Speaker 03: Because this is a prototypical case of a crime of violence. No, I wouldn't agree with that. You used the word dangerous, but I could have easily just put in dangerous. [00:06:07] Speaker 03: violent. [00:06:10] Speaker 00: The government uses this term, a prototypical crime of violence, repeatedly in its briefing, and I think it's worth... [00:06:17] Speaker 00: examining that. I think it's a bit of a circular argument. The government is saying if the death results, if the statute is read the way the government would like it to be read, which is the only way to violate 1958 with death resulting is to hire a hitman to kill someone and the hitman then kills that person, then yes, that is premeditated first degree murder and that is a prototypical crime of violence. But that assumes the government's reading of the statute. If the statute is read, as Mr. Henderson suggests, where death could be caused accidentally, [00:06:45] Speaker 03: But doesn't that conflict with the word results? It says death results from all of these other elements that come first with the intent that a murder be committed as consideration for receipt of an agreement to pay for that murder if death results from that. It doesn't say if death results from a random car accident. [00:07:09] Speaker 00: Well, it says if death results from the defendant's conduct. So if the defendant hits all of the elements. [00:07:13] Speaker 03: But what's the conduct? The conduct is defined earlier, right? Conduct is traveling interstate with intent to commit murder. [00:07:20] Speaker 00: Exactly. [00:07:21] Speaker 03: Getting consideration for that intent and that travel to commit murder. [00:07:29] Speaker 00: Correct, Your Honor. So one of the hypotheticals Ms. Chandrickson has posed is that the defendant has been communicating with who he believes is the hitman, but it turns out it's actually an undercover cop, which is very common in these cases. The defendant travels across state line to meet with who he thinks is the hitman. As he's pulling into the hotel where they're going to meet, he realizes it's a cop. [00:07:50] Speaker 00: Pulls a U-turn, tries to speed away, ends up running over a pedestrian. All of the elements of 1958 have been hit, and a death resulted. [00:07:59] Speaker 00: This hits all of the elements in the statute, and as Taylor instructs, we look to the elements, and if they are all satisfied, that ends the inquiry. [00:08:09] Speaker 02: I don't know if I want to call it an exception, but the unusual circumstance is that the death does not result related to the intended person, but it's an accidental or something else, right? Right. [00:08:26] Speaker 00: Well, it could be the intended person or it could not. There are different hypotheticals. [00:08:29] Speaker 02: You would say if they set out murder for hire to murder Mr. Jones and then death results, then what? [00:08:42] Speaker 02: Because that was the intended person. [00:08:44] Speaker 00: If they set out to kill Mr. Jones and someone else dies? [00:08:48] Speaker 02: No, Mr. Jones dies. [00:08:49] Speaker 00: Mr. Jones dies. [00:08:51] Speaker 00: Well, sure. I mean, there could be examples where, you know, as I set out a couple in the briefing, Mr. Jones gets wind that someone's out to kill him. He thinks he sees the hitman approaching. It turns out it's just a random person, but he thinks it's the hitman. He panics. He runs into traffic and gets hit by a bus. He dies. Another example could be Mr. Jones learns that the You know, a very dangerous cartel or crime family is out to get him and learns there's been a hit put out and knows that he is going to be, before he's killed, tortured, all kinds of horrible things, and decides to kill himself to escape that grisly fate. [00:09:29] Speaker 00: Mr. Jones has died. There has not been the intentional application of violent force against another. [00:09:38] Speaker 02: So those really are examples, whether it occurs to Mr. Jones or to a third party, that upset the intended sequence in effect, right? [00:09:50] Speaker 00: Correct. [00:09:51] Speaker 02: And it's that little group of exceptions that in your view would take this out of the violent crime and would basically use the passive voice and say – We got to go with, is it Duffy or McDuffie? [00:10:09] Speaker 00: McDuffie, that's right. That's right. And I'm not sure I would have phrased them as exceptions. I mean, they are not the typical way one would expect. [00:10:17] Speaker 02: Right. This is not what we might imagine would be the scenario, but they are scenarios that could easily result. [00:10:24] Speaker 00: That's right. And Congress could have worded the statute differently if it wanted to cover just the victim as it did in stalking. [00:10:30] Speaker 00: It did not do that. [00:10:32] Speaker 00: It's an if-death-results scenario. [00:10:34] Speaker 00: Every other federal crime with the death results element courts have held that there is no mens rea attached, and the same should hold true here. [00:10:41] Speaker 03: I would like to... So you're saying if Congress... [00:10:44] Speaker 03: knew that the victim committed suicide, they would still think that scenario would be covered by 1958. That just seems so implausible to me. The victim commits suicide. [00:10:57] Speaker 00: Right. This has happened. [00:10:58] Speaker 03: But then this. [00:11:00] Speaker 00: OK, go ahead. That's what happened in the United States v. Houston, which is a drug case. [00:11:04] Speaker 00: The court said this was an unforeseen suicide, but it was a but for cause of the drug sale. [00:11:10] Speaker 00: And so I don't think that's anything that Congress may have had on its mind, but the language that Congress uses is what we are stuck with in the statute. [00:11:20] Speaker 00: And I would like to address, you know, the government's reliance on Runyon, which is, of course, the Fourth Circuit case. [00:11:26] Speaker 00: I see I'm over my time, if I'd like to. [00:11:28] Speaker 03: You want to reserve it? [00:11:29] Speaker 00: I would like to reserve it. [00:11:30] Speaker 03: You have three minutes and 40 seconds. [00:11:31] Speaker 00: Thank you. [00:11:32] Speaker 03: Thank you. [00:11:47] Speaker 01: Good morning, Your Honors. May it please the Court, Scott Meisler on behalf of the United States. Mr. Henriksen today is asking this Court to diverge from sister circuits on two separate legal issues, all in service of a claim that cannot net him one less day served in custody. And we would ask the Court to reject his arguments on either two grounds. The first one, which I'll mention just briefly unless the court has questions, concerns the effect of Mr. Hendrickson's unchallenged counts carrying life sentences. In this procedural posture, four of your sister circuits have affirmed without reaching the merits. [00:12:23] Speaker 01: I understand Mr. Hendrickson has not tried to distinguish those cases on their facts in any way. What he says is that this court has in bank decision from 1984 called DeBright that applies equally on direct appeal and collateral review and precludes courts from exercising discretion to follow that procedural path that your sister circuits have taken. We don't read DeBright that way. We think the best way to read it, as the Supreme Court reminded us just a few weeks ago, is to keep in mind that statements and judicial opinions are addressed to the circumstances then before the court. [00:12:53] Speaker 01: DeBright was about divergences and how this court handled the concurrent sentencing doctrine on direct appeal. [00:12:58] Speaker 03: Can I ask you, I am struggling with the precedence in this case. You have Linehan, you have McDuffie, and this looks like it's on all fours with McDuffie. You don't have a mens rea. requirement in the text of the death results. It's in the passive voice. We don't need that mens rea to determine what's innocent or wrongful conduct. The preceding elements have a mens rea. [00:13:25] Speaker 03: I'm just not seeing how this can be distinguished from McDuffie. [00:13:30] Speaker 01: Right. So I think McDuffie and Dean, which it follows in the Supreme Court, are actually, I think, a pretty useful way to look at this case. I agree with you, Honor. Two of those factors in both McDuffie and Dean cut against our position, right? The ones you mentioned that there's no mens rea next to the words death results in the statute. and that it's in the passive voice. But if you look at Dean in particular, the Supreme Court didn't just say— What about all four? [00:13:51] Speaker 03: The other elements already have a mens rea. We don't need a mens rea to decide what's innocent and wrongful. So all four are present here. [00:13:58] Speaker 01: Well, I think some of those go to the consequences that Your Honor was mentioning before about the way the statute is structured. But I think to me the real key difference is intent to kill, intent to murder. None of those statutes have intent to murder provisions. And in particular, McDuffie is a general intent crime. Bank robbery, the court emphasized, is a general intent crime. And so the murder liability there, this court said and cited multiple out-of-circuit opinions for that, is treated as felony murder. The general intent underlying bank robbery is what supplies the mens rea in the case. [00:14:30] Speaker 01: And then you look at the factors your honor mentioned, right, that there was separate mens rea intent to steal and purloin and other provisions of McDuffie of the bank robbery statute between McDuffie the provision criminalizing the actus reus and that enhanced statute way down below. One is in subsection A, one is in subsection E. Dean was similar, right, that you had this intent in the umbrella paragraph of a statute separated out by other forms of intent before you got to the aggravating sentencing factor. And the Supreme Court said it made no sense to carry that initial mens rea all the way through the statute. [00:15:06] Speaker 01: Now, Mr. Goddard has said in his reply brief there's no support in the law for this issue about – or the argument we've made about the distance that mens rea has to travel. But I think Dean actually rebuts that. The court was struggling with how you could apply a mens rea. It's all the way above that umbrella paragraph and carried all the way down to a separate penalty provision. For the reasons some of your honors were mentioning before, I don't think we have that at all in 1958. We know what the intent is, intent that a murder be committed. This court in its pattern instructions and in Linehan says that's actually a double-barreled intent. [00:15:37] Speaker 01: It's intent that a murder be committed and it's intent that the murder be committed in exchange for something of pecuniary value. This is the classic. [00:15:43] Speaker 02: But then you went on in your instructions to approve the government is not required – to prove that the defendant intended to cause the death of the victim. [00:15:53] Speaker 01: I don't know, Judge McKeon, if you're referring to the proposed instructions or the ones the court actually gave, but I think you're right. This case was tried in 2015, 2016. [00:16:02] Speaker 01: There's been a lot of categorical approach, water under the bridge. I'm not sure it was on anyone's mind. And so I do think that if the court adopts our construction of the statute in this case, going forward, juries will have to be instructed differently. I don't know what the Fourth Circuit district courts have done since Runyon. [00:16:17] Speaker 02: What would the new jury instructions say? [00:16:19] Speaker 01: I think you would have to instruct on specific intent. I have to look back at this court's pattern instructions to see how the court instructs on specific intent. But we're reading this as a specific intent provision as to the Fourth Circuit and Runyon. [00:16:32] Speaker 03: The final jury instructions said, additionally, the government has alleged that but for the defendant's actions, Christopher Clark would not have died. [00:16:39] Speaker 01: Yes, I think those instructions would have been in line with the causation principles that usually attach to death results provisions. It's at a minimum. [00:16:47] Speaker 03: But causation is different than mens rea. [00:16:49] Speaker 02: It is different than causation. [00:16:52] Speaker 01: I agree. And so this court has – one thing I think also wasn't addressed in this case was whether a proximate cause requirement would have been required. [00:17:00] Speaker 03: So let's not talk about causation. Where is the mens rea requirement in this final jury instruction? [00:17:06] Speaker 01: It was not there. There's no mens rea given. I think that issue is waived, forfeited, precluded many ways over, right? We're talking about collateral review here 10 years after, and it's not what Mr. Goddard has raised, right? Mr. Henriksen has raised A very different kind of claim here, and I think the court is right. It wasn't given here, and going forward, it would have to be. I think from my reading of the Fourth Circuit's decision in Runyon, it was also not given in that case, but I haven't seen this issue come up. Thankfully, there aren't that many successful murder-for-hires that I'm aware of. in this situation. But I think going forward there, the same would be true. [00:17:39] Speaker 01: The district court would have to instruct the jury on a mental state for- How does Runyon support you? [00:17:45] Speaker 03: Because they said the literal language doesn't include a mens rea requirement. [00:17:50] Speaker 03: I think they relied on the realistic probability test, which has now been overruled by Taylor. And they said it does apply to accidental deaths. So how does Runyon help you? [00:17:59] Speaker 01: I don't – I guess I don't – I read the decision mostly what Your Honor is saying. I agree, and I think we've acknowledged in our brief here the court twice referenced the realistic probability standard, so we don't say it wasn't present. But much like in this court's decision in the United States v. Eckford, it wasn't all the court relied on. I think they were relying on some of the same basic principles of statutory construction when they were talking about – I think there's a line in the case that says something like the specific intent of the mens rea in the statute cannot be limited to their individual clauses. And by that, I think they read the statute as we do, as applying that intent listed in the body of the statute to the penalty provisions that follow it. [00:18:36] Speaker 01: So I think the Fourth Circuit had the chance to pull back from Runyon and overrule it in the Navarro case, and that was unpublished. But they said on plain error review that it wasn't clear and obvious Runyon had been abrogated, and instead that they read the opinion as we do, as relying in part on the relationship between the mental state and the results that are required for it. [00:18:57] Speaker 01: I do want to respond to a couple of the points that Mr. Goddard had raised, and in particular, Judge Cody, your point about the penalty structure. I think that is a very important part of this exercise. The D.C. Circuit in the Smith case we've cited and that Mr. Henderson did not address in reply pointed to that as important statutory context when considering a similar question. [00:19:17] Speaker 03: I actually don't think that that case helps you because I look at that statute and it says such killing results. [00:19:24] Speaker 03: So it has any person engaging in a working or in furtherance of a continuing criminal enterprise who intentionally kills or counsels, commands, causes the intentional killing of an individual and such killing results. We don't have such killing results. We don't have if such death results. We just have if death results. So how does Smith help you? Because Congress knows when to say such and they didn't here. So – [00:19:51] Speaker 01: I agree with you. I think Smith is a much easier case for the government than this one is. But I think it rebuts the suggestion that Mr. Henriksen has made that there are no if-results statutes, which are in the passive voice, that can be read to have a mens rea in them. That's an easier case because I think you could read the such as referring back to intentional killing. So our case is harder than that. I would grant the court that. But we're relying on it for those two propositions, that the existence of an if-results in the passive voice doesn't automatically remove you from the mens rea world. That's one. And the fact that the D.C. Circuit looked to the penalty structure of the provision, a statutory context. [00:20:25] Speaker 01: And here, I think really the one thing I want to emphasize that was not in our briefs is that 1958A, our statute here is connected to the neighboring statute, VICAR murder, violent crimes in aid of racketeering. They share a definition provision. They're connected in that way. And they feature similar penalty structures that if it's basically an incoherent, unsuccessful attempt at murder, you're punished by a term of years up to 10 years. If it actually hits murder, it's mandatory life or death. I think Congress made these things – these penalty structures in parallel, and it makes sense to construe this statute as really focused on intentional murders. [00:21:01] Speaker 02: And the penalty here is if death results. [00:21:07] Speaker 01: Yes. [00:21:07] Speaker 02: The penalty is what? [00:21:09] Speaker 01: Mandatory life or death. That's the way federal law treats first-degree murder, 18 U.S.C. [00:21:15] UNKNOWN: 111. [00:21:15] Speaker 01: I'm sorry, Your Honor. [00:21:18] Speaker 04: Let's say that we have a murder for hire. [00:21:22] Speaker 04: The person hired is directed to kill person A. He comes up to a group of people. Person A is there either because he doesn't identify the person properly or because he misses. He shoots and he kills person B. [00:21:38] Speaker 04: Is he liable under the statute? [00:21:40] Speaker 01: He is because that's – I think that is an example of transferred intent upon which we agree, Mr. Hendrickson. Got it. [00:21:46] Speaker 04: Okay. That's step one of the question. And of course, killing person B is a crime of violence. I get that. [00:21:52] Speaker 04: But that means then that death results doesn't – is not restricted to death of the intended victim resulting. So how do you get out from under the example of, well, he drives up to the spot. He realizes I got a problem. He turns around and kills a pedestrian. Death just resulted. And of course it was not death of the intended victim. Why is that not covered by the statute? Or maybe it is. [00:22:19] Speaker 01: I don't think that's covered by the statute if you read it as a – Because we understand the statute to be focused on acts undertaken to realize the defendant's murderous intent. So I think under your hypothetical, you get transferred intent is covered when the defendant unleashes a hitman to kill person a hitman misses and kills B. Likewise, some of Mr. Hendrickson's hypotheticals were about situations in which the targeted victim dies. [00:22:45] Speaker 04: Let me give an intermediate example. He comes up to a crowd. Person A, the intended victim there, is there. He realizes he is in trouble. He gets in a firefight with the police, and he kills person C. Covered by the statute? [00:22:58] Speaker 01: I'm not sure that's covered by the statute, but here's why I don't know the course to decide it because in that scenario … the perpetrator has taken a substantial step toward the commission of an intentional murder, and under this court's decision in Linehan, that is an attempted use of force. So I think that, to me, is the situation. [00:23:18] Speaker 04: I'm not talking about attempt. I'm talking about is he guilty of the actual murder, the one that carries the life sentence or the death sentence. [00:23:25] Speaker 01: Right. I think, to my mind, Your Honor, the situations in which The defendant is actually trying to realize – or the perpetrator is trying to realize the defendant's murderous intent are probably covered by the statute. But the ones that occur early on, these kind of negligent, accidental things, I don't think are covered by the statute. [00:23:44] Speaker 02: Some of that – Let's stop there. Why? Why not? [00:23:48] Speaker 01: I think some of those are screened out by causation principles, right? Things that are – the suicide example, hypothetical for example, even under – So if it's a but for – [00:24:00] Speaker 02: It's not included. [00:24:01] Speaker 01: So if it's a but for it, I think you have to figure out what the language in Houston means about far removed and unforeseen consequences. [00:24:10] Speaker 01: I disagree with Mr. Goddard's reading of Houston. I think the court wasn't addressing itself to unforeseen suicides. It mentioned one time in the opinion that was the defendant's claim. The court didn't really engage with it. [00:24:20] Speaker 02: So just to be clear, when we get to the end of the statute, If you have a but-for cause, then you say, well, now we have to split hairs even further, right? [00:24:30] Speaker 01: I think you have to apply principles of but-for causation, right? And I think Houston is the closest one in that situation. [00:24:35] Speaker 02: But but-for causation is not enough here. [00:24:38] Speaker 01: I understand your honor, but I'm saying if the statute, regardless of the men's right issue, doesn't cover a scenario because of other principles, other jurisdictional principles, causation, then it shouldn't be part of this court's concern for the hypotheticals. And the other thing I want to mention is that We haven't really addressed ourselves to proximate cause. We cited the Pineda-Deval decision from this court, which adopts a presumption in favor of reading proximate cause into statutes. Houston announced an exception to that, and Pineda-Deval acknowledged that exception for drug cases and cases that involve certain kinds of especially risky conducts. [00:25:16] Speaker 01: But I don't think Mr. Goddard is engaged with Pineda Duvall and how that would apply here as well. I think certainly even in cases like felony murder where you don't have this intent to kill, this nexus between the acts and the results. [00:25:29] Speaker 04: But the intent to kill covers only the intended victim and you said this statute covers the person standing beside him. [00:25:37] Speaker 04: I think – I think you just threw away the argument from intent to kill. He did not intend to kill that person. He intended to kill the intended victim who's not the right person. [00:25:48] Speaker 01: I want to be precise, Your Honor. I'm sorry if I misanswered, if I gave you a confusing answer. What we think the statute covers is transferred intent situations because the law treats that the same way. It treats that as a product of the intent. and the death of the intended victim in an anticipated manner. That's some of the hypotheticals you were discussing, Mr. Goddard, about situations in which the defendant, sorry, the target, the intended victim, that's the word the statute uses, runs out into traffic when he sees a hitman approaching. We've given examples in footnote eight and the surrounding text of our brief where states and treaties treat that as first degree intentional murder. [00:26:24] Speaker 01: You've killed the victim. You've realized your murderous intent. But it happened just in a manner that you were not expecting. [00:26:30] Speaker 04: There's a variation, and I apologize for the variations. Hitman is hired. He's supposed to kill person A. He comes up to person A, and he misses. He intends to kill person A. He's aiming at person A, but he's got a bad aim. [00:26:43] Speaker 01: He kills person B. I think that's covered by the statute, and that's covered by transferred intent. [00:26:50] Speaker 04: But he had no intent whatsoever to kill person B. [00:26:52] Speaker 01: I think that to me is I think the principle that both sides have agreed on in the briefing here that follows from the way Justice Thomas described a transferred intent in his dissent in Boissin and in the way it's described in the Lefebvre treaties on criminal law. That's the easier one. I think the harder – there are some harder ones that we've been discussing, but I think the easier one is hit man with bad aim. Yes, he didn't actually want to hit person C. He wanted to hit A, but the law – deems the intentional – the intent transferred to the victim. I think Mr. Gutter agrees with that. [00:27:21] Speaker 04: What happens if he's aiming at person B and person C is not merely an incidental bystander but it's the wife of the hitman? There's no intent whatsoever. He did not – he affirmatively did not want to kill his wife but he did. [00:27:35] Speaker 01: I think it's the same result. I think it's the same result under the law. [00:27:37] Speaker 02: Well, what about – if we now add spectator D into the constellation – sees the hitman, sees the gun, has a heart attack. Covered or not? [00:27:50] Speaker 01: I think that depends on the causation answer, Your Honor. I think that depends on the causation answer. I don't think you have a problem with the intent there because, again, I think there the hitman has unleashed action to realize the defendant's murderous intent, but that's going to depend, I think, on principles of causation. [00:28:08] Speaker 02: I do want to, before you leave, ask you about Elkins because I think Runyon, now you have this... published decision or a memorandum of disposition. And the Supreme Court was pretty clear in Runyon that they just went down the wrong path with this imagining no one would prosecute for that. But we have now the case out of the Fifth Circuit in Elkins. Why isn't that really persuasive for this case? [00:28:36] Speaker 01: I'm glad you asked that, Your Honor. I think two points are critical. The Fifth Circuit emphasized that that statute did not have an intent to kill. This is page 908 of the opinion in there. The court kind of block-quoted the government's brief and faulted us for grouping some of the intents together, including intent to kill or harm, when all that the statute issued there required was... an intent i think to to intimidate or to harass and so the court distinguished intent to kill scenarios that's the first thing and on the death results provision i think that's actually a really good example of why some of the structural concerns i mentioned before make a difference elkins is a situation where the death results uh language in the stalking statute was in a totally different provision 2261 versus 2261 capital a and it was a provision that applied to multiple crimes You don't have that here. [00:29:28] Speaker 01: This is a death resulting from a single use of interstate commerce facilities in the commission of murder for hire. It's very different structurally. [00:29:36] Speaker 03: Do you want to address Lowell? [00:29:39] Speaker 01: Yeah. Lowell, I think, is some of the same considerations, Your Honor. I think that is a statute in which the least culpable conduct is committed with an intent to harm and not an intent to kill. And it has some of the same structural differences from Dean I mentioned before, an umbrella paragraph. with the intent, with separate penalty provisions kind of carved out in numbered subparagraphs. That is admittedly one of the harder ones to distinguish here, but it is distinguishable on those grounds, and especially, like I said, the structural ones and the absence of an intent to kill. [00:30:11] Speaker 03: And your penalty of structural one is whether the If death results is just within the same subsection or if it's in a separate subsection? That's your penalty structural argument. [00:30:20] Speaker 01: That's one part of it, and the second part of it is just the bump you get, right, is whether Congress is deeming this death resulting to be the kind of intentional murder that warrants mandatory life or death. That's not true of the carjacking statute where it goes from a max of 15 to a max of life, but it does not require mandatory life or death. [00:30:39] Speaker 04: So what if I were to read the statute more narrowly than you read it? That is to say, if I were to read the statute as covering death for hire only when death of the intended victim results, that's a narrow reading of the statute. Would you object to that reading of the statute? Is that foreclosed by other cases? [00:30:58] Speaker 01: I don't know that it's foreclosed by other cases, Your Honor. I think we would prefer to keep open the transferred intent principle because I think it is one that has been recognized in the federal cases and in the treatises and in Supreme Court precedent. So I think we want to keep that open. But if Your Honor is saying that's the only way to read it that's not reckless, I think the intentional reading is better than reading it to apply to accidental or reckless conduct. [00:31:20] Speaker 03: Could you address in Ross, the government said there wasn't a mens rea requirement even though it is consistent with the structure of – was that 18 – sorry. [00:31:35] UNKNOWN: 1201. [00:31:35] Speaker 03: 1958. No, they said 1201 is – 1201 has the same structure in terms of the – if death results is in the same section as the base offense, right? But the government in that case said no mens rea requirement. So how would you square that with your structural argument? [00:31:54] Speaker 01: Right. I think that statute is a felony murder. type statute, right? No intent to kill, no intent to murder required. It's kidnapping and any death results. We also pointed out in our brief that the kidnapping statute in particular has broad language if the death of any person results. So whereas you have in our statute two textual references to intended victim, you don't have that in kidnapping. It's death of any person results and no specific intent to murder or kill is required. It's felony murder. [00:32:20] Speaker 02: I have one other question. This goes to the penalty because we've been talking about you can get death or life imprisonment. That makes sense. And then it says, or she'll be fined not more than $250,000. So that seems to unsettle. That is a very odd provision, but there it is. So how do you square that with your argument? Well, we went murder, murder, death all the way down. [00:32:44] Speaker 01: Yeah, that's funny, Your Honor. I think the Supreme Court has a footnote in the Burrage case cited in our brief addressing that as basically a Scribner's error. The or there is a strange kind of Scribner's error. I'm not sure why it was written that way, but does seem to suggest that in lieu of these grievous penalties, the Supreme Court, I think, basically cited lower court cases treating it that way and didn't comment either way on that. I think that's probably the way I read it as a Scribner's error. [00:33:08] Speaker 04: You think the first or in that last clause should be and, and then the second or, or? Because it says or fined or both. [00:33:16] Speaker 01: Yes, exactly. Exactly. [00:33:18] Speaker 03: But the earlier sections say shall be fined under this title or in prison for not more than 10 years or both. [00:33:25] Speaker 01: Let's look back at it, Your Honor. [00:33:27] Speaker 03: Second one, if personal injury results shall be fined under this title or in prison for not more than 20 years. So you're saying all three of them are scrivener's errors? [00:33:33] Speaker 01: Let's just look back at this here. [00:33:38] Speaker 03: I mean it uses that or three times, so. [00:33:43] Speaker 01: I have to look back at the cases, Your Honor, and like I said, I don't have them in front of me. I think the only spot I'm aware of the Supreme Court addressing this is under a different statute, 841 in the Burridge case. I'm happy to supply the court a letter, but my suspicion is that the lower court cases have treated this as you have to pick one of the incarcerated-type penalties, life or death, and or a fine. But you can't substitute a fine for those very, very high penalties. [00:34:06] Speaker 04: Even though that's exactly what those words say. [00:34:09] Speaker 01: I think that's the work of the scripter's error doctrine. It has to do, Your Honor, is that it has to be a deviation from the plain language in situations where it produces an absurdity. [00:34:17] Speaker 01: But again, I may be over my skis here because I don't have the case law in front of me at this moment. [00:34:21] Speaker 03: All right. My colleagues don't have any more questions. [00:34:25] Speaker 01: Thank you so much. [00:34:25] Speaker 03: Thank you. You've gone way over your time. [00:34:35] Speaker 03: Go ahead, please. [00:34:35] Speaker 00: Hello again, Your Honors. [00:34:37] Speaker 00: I would like to address Mr. Meisler's comments on proximate causes. I understand Mr. Meisler to have just informed the court. The government's position is that 1958 requires proximate cause and conceded that if it does not require proximate cause and requires only but for cause, the heart attack example posed by Your Honor would be fatal to the government's case. The government in Runyon conceded that but for causation is a standard for 1958 with deaths resulting. The government says now that's relying on Pineda Duval. [00:35:07] Speaker 00: It cites that case once in a footnote on page 46. [00:35:12] Speaker 00: Pineda Duval came before Burrage, which said that if death results means but for causation, and this court in McDuffie following Burrage said the same. So I think it's quite clear that under 1958, with death resulting, we are operating in a world of but for causation, and I understand the government has just conceded that that's correct. [00:35:35] Speaker 00: Mr. Henderson prevails. [00:35:39] Speaker 00: I'd also like to discuss the penalty bump the government is discussing. [00:35:45] Speaker 00: Bank larceny of under $1,000 is a misdemeanor. [00:35:49] Speaker 00: Bank larceny of $101,000 resulting in death is mandatory life for the death penalty. So Congress does have extreme jumps for, you know, for resulting deaths. And the one here is much less substantial than that. [00:36:04] Speaker 00: And the other point I'd like to make is, you know, the government attempts to distinguish Lowell by saying there there's only an intent to harm as opposed to an intent to cause death if you're looking at the least culpable behavior. But an intent to harm is sufficient to satisfy the force clause. So I don't think that's a distinction without a difference in terms of when we're operating in the world of the categorical approach. [00:36:25] Speaker 00: I don't think I have anything else to offer. I'd be happy to answer any questions the court might have. [00:36:29] Speaker 03: Do you have any questions? No. No, we don't. Thank you very much. [00:36:32] Speaker 00: Thank you very much. [00:36:33] Speaker 03: Okay. Thank you. Thank you to both counsels for the very helpful arguments. This case is submitted.