[00:00:00] Speaker 04:
is 24-3062, US v. Barnes.

[00:00:07] Speaker 01:
Good morning, Your Honors.

[00:00:08] Speaker 01:
May it please the Court?

[00:00:10] Speaker 01:
Lisa Cordera of Arnold & Porter on behalf of Appellant Nedarius Barnes.

[00:00:14] Speaker 01:
This case is about the important issue of the scope of assault on a federal officer under 18 USC 111.

[00:00:21] Speaker 01:
The government takes a position in this case that puts officers at greater risk than Congress intended when drafting the statute.

[00:00:29] Speaker 01:
Under binding precedent from this court and the Supreme Court, Section 111 can be violated with reckless conduct.

[00:00:37] Speaker 01:
In United States versus Hill, this court held that Section 111 is a general intent crime.

[00:00:42] Speaker 01:
Several decades later in United States versus Zuni, this court held that general intent crimes correspond with a mens rea that includes recklessness.

[00:00:52] Speaker 01:
Later in the Supreme Court in Borden versus United States, the court made clear that reckless conduct

[00:00:58] Speaker 01:
cannot constitute a crime or violence.

[00:01:03] Speaker 01:
Mr. Barnes is therefore innocent of his 924C charge, and the court should vacate the judgment against him and remand for further proceedings.

[00:01:10] Speaker 03:
Didn't he plead guilty?

[00:01:12] Speaker 01:
He pled guilty, Your Honor.

[00:01:14] Speaker 03:
And it was an unconditional plea?

[00:01:16] Speaker 01:
That's correct.

[00:01:18] Speaker 03:
And why was it unconditional?

[00:01:21] Speaker 01:
It's not clear from the record.

[00:01:22] Speaker 01:
Mr. Barnes moved to dismiss the charge against him.

[00:01:25] Speaker 01:
He lost that motion.

[00:01:27] Speaker 01:
After that, he pled open to the two counts of the indictment.

[00:01:30] Speaker 03:
So doesn't that unconditional plea waive appellate review of these issues?

[00:01:36] Speaker 01:
No.

[00:01:36] Speaker 01:
The cases that the government cites on this issue are distinguishable for several reasons, but I'll start our argument with first principles.

[00:01:44] Speaker 01:
Mr. Barnes had no other way to preserve the issue under the government's theory other than going to trial.

[00:01:50] Speaker 01:
It's a purely legal issue.

[00:01:51] Speaker 03:
Well, he could have made a conditional plea.

[00:01:53] Speaker 01:
Sure.

[00:01:54] Speaker 01:
Yes, Your Honor.

[00:01:54] Speaker 01:
Other than getting consent from the government who had just won on the motion to dismiss issue or the court who had ruled against Mr. Barnes.

[00:02:02] Speaker 01:
So he could have either raised the issue again, which I don't think any rational defendant would have done.

[00:02:06] Speaker 04:
That happens every time you reserve an issue.

[00:02:09] Speaker 04:
You reserve it because you lost to the district court.

[00:02:12] Speaker 01:
Your honor, our position is that he did preserve it, but it cannot be conditional on the government's consent, whether that's preserved for appeal.

[00:02:21] Speaker 01:
Cases from this court and the Supreme Court make that clear.

[00:02:24] Speaker 01:
In this court, Barboa and Barnhart are best examples of cases that have gone on appeal from an open, I'm sorry, a plea that is not constitutional, doesn't go to subject matter jurisdiction, but does go to the power of the court to enter conviction.

[00:02:41] Speaker 01:
And here, because 924C, excuse me, the 111 charge cannot support a 924C conviction, the court has no power to enter judgment of conviction, and the government has no power to prosecute it.

[00:02:57] Speaker 00:
Did you cite any cases to us where someone had been convicted of 111B based on a reckless act?

[00:03:09] Speaker 01:
Yes.

[00:03:11] Speaker 00:
Go ahead.

[00:03:12] Speaker 01:
Some of the examples that we highlight in our brief come from other circuits, United States versus Gagnon, where the defendant was resisting arrest essentially by being drunk and disrespectful in his boat.

[00:03:25] Speaker 01:
The officers had to use force against him.

[00:03:26] Speaker 01:
There was no intentional conduct there to use force against the officer.

[00:03:31] Speaker 01:
The court upheld the conviction.

[00:03:33] Speaker 01:
Another case, United States versus Williams from the Fifth Circuit, the defendant was flailing her arms, not with the intent to hit the officer, but for the purpose of evading the handcuffs getting on her wrist.

[00:03:44] Speaker 01:
So just recklessly flailing her arms, the officer used force against her, and the court upheld the conviction there.

[00:03:50] Speaker 01:
There are several recent cases from the District of Columbia where reckless conduct has been held to be sufficient, and we think that's the right reading.

[00:04:00] Speaker 04:
respond to our decision in Kendall.

[00:04:04] Speaker 01:
Our primary argument is that Kendall did not address the mens rea necessary to violate the statute.

[00:04:12] Speaker 01:
It addressed the actus reus.

[00:04:14] Speaker 01:
So intentional use of force, meaning that the force cannot be used by accident.

[00:04:18] Speaker 01:
The defendant couldn't have been pushed, and that is the use of force.

[00:04:22] Speaker 04:
It was in our language.

[00:04:23] Speaker 04:
I mean, we said conviction under

[00:04:26] Speaker 04:
111B necessarily requires a finding that the defendant intentionally used, attempted to use, or threatened to use force against the person of another.

[00:04:36] Speaker 04:
We take that seriously if we said that.

[00:04:39] Speaker 04:
It may be wrong.

[00:04:41] Speaker 04:
Maybe it wasn't totally necessary to the decision.

[00:04:45] Speaker 04:
But it's the sort of thing we tried to show respect for our prior decisions on.

[00:04:54] Speaker 04:
And then they clearly said it.

[00:04:57] Speaker 04:
You agree that they said it.

[00:04:59] Speaker 01:
They said it, Your Honor.

[00:05:00] Speaker 04:
You're just saying, well, they didn't really mean it, or they didn't think about it, so you shouldn't pay attention.

[00:05:05] Speaker 04:
That's not the way we treat statements in our precedent.

[00:05:10] Speaker 01:
No, I disagree with that characterization of our position.

[00:05:13] Speaker 01:
Our position is that when the court spoke of the intentional use of force, it was the intent to use force.

[00:05:20] Speaker 01:
and not, as Borden clarified, which came after Kendall, so the panel there didn't have reason to anticipate this decision necessarily, clarified that the use of force as a second mens rea for 924C purposes, and the key clause in 924C that made the court come to that conclusion is against the person or property of another.

[00:05:43] Speaker 01:
So one can act, use force intentionally,

[00:05:49] Speaker 01:
not intend to use it against the person or property of another.

[00:05:52] Speaker 01:
This is made clear to me in the board and oral argument, they used a baseball analogy.

[00:05:58] Speaker 01:
So if I'm playing baseball, I intend to use force against the baseball.

[00:06:03] Speaker 01:
That's what Kendall addressed.

[00:06:05] Speaker 01:
But when I hit the ball and let go of the bat, it hits the person near me.

[00:06:10] Speaker 01:
I didn't intend to use force against that person.

[00:06:13] Speaker 03:
But when you aim the bat at him, it did.

[00:06:16] Speaker 01:
That would be the double intent that Kendall didn't address, but the Supreme Court made clear in Borden as necessary.

[00:06:22] Speaker 03:
Well, I'm still concerned about the unconditional plea.

[00:06:26] Speaker 03:
There are four reasons you can now come in and contest it.

[00:06:30] Speaker 03:
This isn't one of them.

[00:06:32] Speaker 01:
I'm sorry.

[00:06:32] Speaker 01:
I didn't hear the second part of that question.

[00:06:34] Speaker 03:
I say this is not one of them.

[00:06:37] Speaker 03:
It's not double jeopardy.

[00:06:39] Speaker 03:
It's not a pretrial motion.

[00:06:45] Speaker 03:
It's not an unconstitutional statute.

[00:06:52] Speaker 03:
How do we get past that?

[00:06:54] Speaker 01:
It goes to the power of the court to enter a conviction.

[00:06:58] Speaker 03:
Well, it used to be only if the counsel was ineffective.

[00:07:06] Speaker 03:
That hasn't been raised.

[00:07:08] Speaker 01:
No, that's not our argument now.

[00:07:10] Speaker 01:
It's that under no facts,

[00:07:13] Speaker 01:
This is an error I cannot remember.

[00:07:15] Speaker 03:
Once you've pleaded guilty, you've conceded that the accused did the act and they did exactly what he was charged with.

[00:07:25] Speaker 01:
He conceded to the facts that constitute the elements of the crime.

[00:07:29] Speaker 01:
Actually, in the plea colloquy in Count 2, he really didn't plead to a crime of violence.

[00:07:35] Speaker 01:
He pleaded to using a firearm in the commission of Count 1.

[00:07:40] Speaker 01:
He did plead to those facts.

[00:07:41] Speaker 01:
We're not contradicting those on appeal.

[00:07:43] Speaker 01:
Our position is that under no circumstance can those facts violating 111 constitute a crime of violence sufficient to support a 924C charge.

[00:07:55] Speaker 01:
This court's decisions in Barboa and Barnhart support our position.

[00:07:58] Speaker 01:
They were not constitutional claims there.

[00:08:03] Speaker 01:
Barboa dealt with a defendant who pledged guilty to conspiracy.

[00:08:07] Speaker 01:
The co-conspirator was a federal officer.

[00:08:11] Speaker 01:
The court held that even though he pled guilty, under no circumstances could those facts constitute a violation of the statute.

[00:08:18] Speaker 01:
So they allowed the defendant to appeal there.

[00:08:21] Speaker 01:
Barboa dealt with the use of a firearm definition.

[00:08:26] Speaker 01:
An intervening case clarified the definition of the use there.

[00:08:30] Speaker 01:
So the defendant argued on, I'm sorry, on a 2255 motion.

[00:08:34] Speaker 01:
even though he pled guilty.

[00:08:36] Speaker 03:
Barboa was saying that it was not really a crime that he was indicted for.

[00:08:41] Speaker 01:
That's our position too.

[00:08:43] Speaker 03:
What, that he didn't commit a crime period?

[00:08:46] Speaker 01:
I understand the disconnect.

[00:08:47] Speaker 03:
Just said he did?

[00:08:48] Speaker 01:
It's the categorical approach that I think is causing this disconnect.

[00:08:52] Speaker 01:
So we don't look for 924C purposes.

[00:08:55] Speaker 01:
We don't look to whether the actual facts of this case constitute a crime of violence or involves the intentional use of force.

[00:09:03] Speaker 01:
it's whether Section 111 can ever be violated without the knowing or intentional use of force.

[00:09:13] Speaker 01:
To illustrate the absurdity, frankly, of the position that 111 requires intent, this double intent, intent to use force and intent to use force against the person of another, we can live to this course decision in Zuni.

[00:09:29] Speaker 04:
I'm hung up on Kendall.

[00:09:31] Speaker 04:
I thought maybe I had it wrong in my notes, so I just looked it up.

[00:09:36] Speaker 04:
Our sentence was, as the Fifth Circuit explained, that suggests we're agreeing, a, quote, conviction under 111B necessarily requires a finding the defendant intentionally used, attempted to use, or threatened to use physical force against the person of another, period.

[00:09:55] Speaker 01:
My reading of Kendall is that it's the first intent, the intent to use the bat against the baseball, not to hit the person next to you.

[00:10:03] Speaker 04:
But even if- But we say, against the person of another.

[00:10:07] Speaker 01:
That's the- You want to- Yes, your honor, that's the full sentence.

[00:10:13] Speaker 01:
So to the extent your honors disagree with our position on that, then we would argue that Kendall has been abrogated by Borden.

[00:10:22] Speaker 04:
And Borden made clear that you need- And you can go on, Bonk, if you want, see if we correct our presumed error.

[00:10:28] Speaker 01:
But that's not necessary here because Borden came after Kendall.

[00:10:32] Speaker 04:
That's true, if you think it undermined it.

[00:10:35] Speaker 01:
Yeah, really, I think that Kendall didn't address the recklessness issue, and Borden squarely addressed it.

[00:10:44] Speaker 04:
Go to your next point, then, if you want to say something.

[00:10:47] Speaker 01:
I have one more point on Kendall.

[00:10:50] Speaker 01:
A quote that is helpful to me is, to determine if every violation of 111-V is a crime or violence, we need only determine whether both an assault that causes bodily injury and an assault with a deadly weapon involve the use, threatened use, or attempted use of force.

[00:11:08] Speaker 01:
Excuse me.

[00:11:09] Speaker 01:
Use of violent physical force.

[00:11:10] Speaker 01:
They both do.

[00:11:12] Speaker 01:
So I think that quote makes clear that Kendall was addressing the actus reus, the intent to use force.

[00:11:20] Speaker 01:
But regardless, Borden would have clarified that.

[00:11:22] Speaker 01:
And the court doesn't need to go en banc to correct that.

[00:11:27] Speaker 01:
But it is presented today with the opportunity to clarify the second mens rea that the Supreme Court has instructed is necessary to constitute a crime of violence.

[00:11:39] Speaker 01:
If I can return to my example in Zuni, there the defendant was driving drunk on an Indian reservation

[00:11:46] Speaker 01:
crossed over the highway line caused a serious accident injuring a four-year-old child.

[00:11:52] Speaker 01:
The court made clear that there was no evidence that the defendant acted intentionally or purposefully.

[00:11:58] Speaker 01:
It was clear he was acting recklessly.

[00:12:00] Speaker 01:
And that was enough to satisfy assault causing bodily injury under Section 113A6.

[00:12:08] Speaker 01:
Now, under the government's position in this case,

[00:12:11] Speaker 01:
If that four-year-old was a federal officer, that would not violate section 111.

[00:12:15] Speaker 01:
That would not constitute assault on a federal officer.

[00:12:18] Speaker 01:
We don't think that's the correct reading of 111.

[00:12:22] Speaker 01:
If the court doesn't have further questions, I'd like to reserve my time.

[00:12:26] Speaker 01:
Thank you.

[00:12:34] Speaker 02:
Thank you.

[00:12:34] Speaker 02:
Good morning, Your Honors.

[00:12:35] Speaker 02:
Brian Clark for the United States.

[00:12:37] Speaker 02:
May it please the court.

[00:12:39] Speaker 02:
Mr. Barnes's

[00:12:40] Speaker 02:
challenge to his section 924C conviction is a non-starter for at least three reasons.

[00:12:48] Speaker 02:
First, he asked this court to overrule, by my count, at least three of its precedents, Kendall, Wolfname, and Devon.

[00:12:59] Speaker 02:
Second, he then asks this court to rely on the Barboa line of cases, which this court overruled in Devon.

[00:13:08] Speaker 02:
And then finally,

[00:13:09] Speaker 02:
He asks this court to go out on a limb and be the only circuit to hold that section 111B can be committed recklessly.

[00:13:20] Speaker 02:
And so I'll start with the effect of Mr. Barnes's guilty plea.

[00:13:25] Speaker 02:
And he relies heavily on two cases, Barboa and Barnhart.

[00:13:30] Speaker 02:
Importantly, this court overruled those decisions.

[00:13:34] Speaker 02:
the Barboa line of cases in Devon.

[00:13:37] Speaker 02:
And the reason is because Barboa relied on what Devon called a conflation of a jurisdictional issue and the power of the government to hail a defendant into court.

[00:13:54] Speaker 02:
What Barboa said was that because the defendant claimed that he pled guilty to something that was not a crime,

[00:14:03] Speaker 02:
That was a jurisdictional defect in the indictment, which resulted in the district court lacking jurisdiction, and therefore the government lacking the power to bring the defendant into court.

[00:14:19] Speaker 02:
And what Devon said was, no, that's not the right way of looking at it.

[00:14:24] Speaker 02:
Under the Supreme Court's intervening decision in Cotton, a defect in an indictment

[00:14:29] Speaker 02:
is not a jurisdictional defect.

[00:14:31] Speaker 02:
It's not a jurisdictional problem.

[00:14:33] Speaker 02:
It doesn't go to the power of the court to adjudicate the matter.

[00:14:38] Speaker 02:
Rather, that type of claim and the type of claim that Mr. Barnes is making here goes to the merits, not jurisdiction.

[00:14:47] Speaker 02:
And that is why, and this is most clear in footnote four of Devon, where it explicitly says that because of

[00:14:57] Speaker 02:
the intervening decision of Cotton, that prior line of cases is no longer good law.

[00:15:02] Speaker 02:
And I think this makes a lot of sense when you look at the limited category of cases, Judge Kelly, that you were talking about.

[00:15:09] Speaker 02:
Those exceptions to the general rule, and I guess I should say it, the general rule is that a knowing, voluntary, and unconditional guilty plea forecloses all non-jurisdictional defenses.

[00:15:22] Speaker 02:
And then there are three what this court calls narrow exceptions to that rule.

[00:15:27] Speaker 02:
And those are only for vindictive prosecution under Blackledge, double jeopardy under MENA, or for challenging the constitutionality of the statute of conviction.

[00:15:38] Speaker 02:
And what the Supreme Court, I think, made clear in class is that that set of claims, those types of claims, are where a defendant essentially serves a constitutional immunity to prosecution.

[00:15:51] Speaker 02:
that the government can't even bring the indictment constitutionally.

[00:15:55] Speaker 02:
But that's not what Mr. Barnes's argument is here.

[00:15:58] Speaker 02:
Mr. Barnes is just raising a statutory interpretation argument about what mens rea section 111B requires.

[00:16:06] Speaker 02:
And so, respectfully, the Barboa line of cases is no longer good law and does not offer Mr. Barnes a way to get around the effect of his guilty plea.

[00:16:19] Speaker 02:
Moving to the

[00:16:21] Speaker 02:
merits of his claim regarding Section 111B and whether it can be committed recklessly, I first want to note that this issue is before the court on plain error.

[00:16:31] Speaker 02:
And the reason it is is because Mr. Barnes did not raise these arguments below.

[00:16:37] Speaker 02:
Below, he argued that Section 111B was not a crime of violence because it required, it only prohibited a causation of harm

[00:16:50] Speaker 02:
and did not have as an element the use of force.

[00:16:54] Speaker 02:
Even the district court judge noted this because in her decision denying his motion to dismiss, the district court judge said, and the defendant doesn't even argue that section 111B can be committed recklessly.

[00:17:09] Speaker 02:
Now, the judge did go on to say sort of generally that 111B cannot be committed recklessly, and it noted Kendall, for example, Judge Hart,

[00:17:19] Speaker 02:
But that was not sufficient to preserve for Mr. Barnes the arguments that he's now making on appeal.

[00:17:25] Speaker 02:
The judge did not discuss or address the effect of Zuni.

[00:17:29] Speaker 02:
The court did not discuss or address the effect of the simple assault language in section 111B.

[00:17:37] Speaker 02:
So all of the arguments that you're hearing this morning and that you see in the briefing are brand new on appeal.

[00:17:44] Speaker 02:
So that's the first thing, plain error review applies.

[00:17:48] Speaker 02:
The second piece is that

[00:17:50] Speaker 02:
With respect to your question, Judge Carson, about whether there have been cases where someone has been convicted of Section 111 for reckless acts, I believe that the cases that you were given, Gagnon being one of them, are in circuits that interpret Section 111B differently.

[00:18:11] Speaker 02:
And those cases, I believe, and I'm sure opposing counsel will correct me if I'm wrong,

[00:18:18] Speaker 02:
involved the application of the simple assault offense, the misdemeanor in section 111A.

[00:18:26] Speaker 02:
And in this court, it has held in wolf name that section 111, every section 111 offense requires an assault, but that's not true in other circuits.

[00:18:40] Speaker 02:
And so I think that makes a difference and could explain some of the other cases that you've heard about.

[00:18:48] Speaker 02:
With respect to Kendall and whether Borden is an intervening case that allows this panel to go a different direction.

[00:18:59] Speaker 02:
Borden didn't interpret section 111, did he?

[00:19:01] Speaker 02:
Not at all.

[00:19:02] Speaker 02:
Not at all.

[00:19:03] Speaker 02:
And I'm not entirely sure how Borden could be treated as an intervening case in any event.

[00:19:10] Speaker 02:
But I will know that this court addressed Kendall after Borden in an unpublished decision called Newman, which is cited in

[00:19:18] Speaker 02:
our brief, and in Newman, this court rejected the very type of argument that Mr. Barnes was making this morning and stuck with Kendall, saying, look, in Kendall, just as you were saying Judge Hartz, we explicitly said you have to act intentionally, and that it requires an intentional use, attempted use or threatened use of physical force against the person of another.

[00:19:42] Speaker 02:
Both types of, for both acts, you have to do it intentionally.

[00:19:47] Speaker 02:
And in other courts, I believe the Fourth Circuit and McDaniel have interpreted Kendall that same way.

[00:19:55] Speaker 02:
And then with respect to Zuni, I think it's important to note that Zuni was not a Section 111 case at all.

[00:20:03] Speaker 02:
It was a case that involved Section 113A6.

[00:20:08] Speaker 02:
And that was assault basically on federal property.

[00:20:13] Speaker 02:
And that statute is worded differently.

[00:20:17] Speaker 02:
Importantly, in Section 111B, it requires a forcible assault.

[00:20:24] Speaker 02:
And for the B prom, for that most serious felony offense, it requires the use of a dangerous or deadly weapon or the infliction of bodily harm.

[00:20:37] Speaker 02:
Section 113A6 does not include that forcible requirement.

[00:20:43] Speaker 02:
And that requirement of the use of force is important.

[00:20:47] Speaker 02:
And it affects the mens rea that applies to section 111B.

[00:20:53] Speaker 02:
And I think looking at Borden, it offers a good example.

[00:20:57] Speaker 02:
Because when interpreting section 924C, what the court said was the word against when it modifies use of force, it requires some more directed action than what a crime that can be committed recklessly might.

[00:21:13] Speaker 02:
So we're going to say that 924C predicate offense requires

[00:21:17] Speaker 02:
a mens rea of purposeful or knowing.

[00:21:21] Speaker 02:
Reckless won't cut it.

[00:21:23] Speaker 02:
And in 111B, you have very similar language where you have forcible, you have that use of force, and it has to be against a federal officer.

[00:21:34] Speaker 02:
And so when you take a step back and sort of look at, compare the language of section 111B to the language of section 924C, which is really the ultimate inquiry here,

[00:21:45] Speaker 02:
it makes sense that section 111B has the requisite, you know, requires the requisite mens rea and is a crime of violence.

[00:21:53] Speaker 02:
I would just note that in addition to Kendall, there is the Newman case, which I mentioned, but there's also a Supreme Court precedent in Fiola.

[00:22:03] Speaker 02:
In Fiola, the Supreme Court interpreted a very similar, but an earlier version of section 111, and it said that it requires intent to assault.

[00:22:13] Speaker 02:
I'm not, I,

[00:22:15] Speaker 02:
Not sure how that could be read to include a mens rea of recklessness, an intent to assault.

[00:22:22] Speaker 02:
And this court's decision in Wolfname is similar.

[00:22:26] Speaker 02:
This court in Wolfname reversed because the defendant there showed that he didn't have an intent to harm the law enforcement officer.

[00:22:35] Speaker 02:
He was just trying to move the law enforcement officer's arm so the defendant could breathe.

[00:22:40] Speaker 02:
And based on that, this court held no.

[00:22:44] Speaker 02:
that reversed his conviction.

[00:22:48] Speaker 02:
And so for all those reasons, this court's precedent, Supreme Court precedent, support the government's position that Section 111B requires a mens rea of intentional or knowing certainly cannot be satisfied by reckless conduct and that it is a crime of violence.

[00:23:13] Speaker 02:
And the other, I guess the last point I'll make is that the other circuits agree.

[00:23:17] Speaker 02:
And I would point the court to footnote eight on pages 26 and 27 of the government's response brief.

[00:23:24] Speaker 02:
There we catalog cases where other circuits have said that section 111B requires a mens rea of knowing or intentional.

[00:23:34] Speaker 02:
Now all of those cases, to be sure, do not arise in the context of

[00:23:40] Speaker 02:
924C or whether Section 111B is a crime of violence.

[00:23:45] Speaker 02:
So I wanted to make sure that was clear, but some of them do.

[00:23:49] Speaker 02:
And in the McDaniel case, I believe it's in footnote 14, the Fourth Circuit catalogs all the courts that had held that Section 111B is a crime of violence.

[00:24:00] Speaker 02:
And I would end where I started that if this court were to hold that Section 111B

[00:24:08] Speaker 02:
is not a crime of violence.

[00:24:09] Speaker 02:
It would be the first to do so.

[00:24:11] Speaker 02:
So unless the court has any other questions, I will cede my remaining time.

[00:24:16] Speaker 02:
Thank you for your attention.

[00:24:17] Speaker 02:
We ask that the court affirm.

[00:24:20] Speaker 04:
Thank you, counsel.

[00:24:25] Speaker 01:
Your honors, I have four main points on rebuttal that I'll try and get out as quickly as possible.

[00:24:30] Speaker 01:
First, on the preservation issue, the issue was pressed below.

[00:24:33] Speaker 01:
And even if your honors disagree that it was pressed, it was rolled on by the district court.

[00:24:38] Speaker 01:
The court stated in its opinion denying the motion to dismiss, unlike the offenses in Borden, Section 111B cannot be committed with a mens rea of ordinary recklessness.

[00:24:47] Speaker 01:
Among other statements, multiple cases cited by the government have made clear that when a district court sui sponte raises and explicitly resolves an issue on the merits, the appellant may challenge that ruling on appeal and de novo review applies.

[00:25:01] Speaker 01:
That's Hernandez Rodriguez and Tizone.

[00:25:05] Speaker 01:
As to whether Devon overruled Barboa and Barnhart, I disagree with the government's position on that.

[00:25:11] Speaker 01:
As Your Honor mentioned before, it would have required an unblocked decision.

[00:25:14] Speaker 01:
First of all, second of all, I do think it's more of an outlier and a more recent case, also cited by the government's faith, stated that Devon was ultimately decided on plain error grounds, not on this plea waiver issue.

[00:25:30] Speaker 01:
This is not about just the sufficiency of the indictment.

[00:25:33] Speaker 01:
This is about the sufficiency of the plea, whether the facts allocated to constitute or meet the elements of a crime.

[00:25:40] Speaker 01:
Here, they do not.

[00:25:41] Speaker 01:
And the Supreme Court in class at least made clear, and in Boese and in other cases, that that issue is not implicitly waived by an unconditional plea.

[00:25:50] Speaker 01:
This is not a case where the government and defendant negotiated a plea agreement.

[00:25:55] Speaker 01:
The issue was never raised.

[00:25:57] Speaker 01:
Here, the issue was raised, briefed, ruled upon.

[00:26:00] Speaker 01:
And there was no benefit to the government in a plea agreement like there was in in-state and Devon.

[00:26:07] Speaker 01:
As to the Borden, Kendall, and Fiola, Fiola, like Borden, goes to general intent, the intent to use force, that first level of mens rea.

[00:26:17] Speaker 01:
And Kendall, the holding in Kendall is that Section 111 satisfies

[00:26:23] Speaker 01:
It can be a crime of violence sufficient to support that charge.

[00:26:27] Speaker 01:
We don't know what intent is required by that decision.

[00:26:30] Speaker 01:
The issue in Borden is whether a reckless intent is sufficient to constitute use of force against the person or property of another.

[00:26:41] Speaker 01:
The court held after Kendall that it was not.

[00:26:44] Speaker 01:
And the last point I'll make is that if this court holds that 111 requires knowing or purposeful conduct, it will be the only federal assault charged to our knowledge that cannot be committed recklessly.

[00:26:56] Speaker 01:
It is more narrow.

[00:26:58] Speaker 01:
Thank you.

[00:26:59] Speaker 04:
Thank you, counsel.

[00:27:01] Speaker 04:
Case submitted.

[00:27:03] Speaker 04:
Counselor excused.