[00:00:07] Speaker 03: The honorable judges, the United States Court of Appeals for the 10th Circuit. [00:00:12] Speaker 02: Please be seated. [00:00:17] Speaker 02: Next case this morning is 23-7086, United States versus Barrett's. [00:00:27] Speaker 02: Council for Appellant, if you'd make your appearance and proceed, please. [00:00:45] Speaker 01: May it please the Court, my name is Howard Pincus from the Federal Public Defender and I represent Kenneth Barrett. [00:00:52] Speaker 01: At Mr. Barrett's 2005 trial, the District Court relied on Section 924C's residual clause, told that 18 USC 848E1B is a crime of violence and could support a 924C conviction. [00:01:07] Speaker 01: This was error under the United States versus Davis, which held that the residual clause is unconstitutionally vague. [00:01:14] Speaker 01: And because Section 848 offense can now be committed with a mental state insufficient to satisfy 924C's Elements Clause, Mr. Barrett is entitled to relief. [00:01:26] Speaker 01: Although the record is silent on whether the district court relied on the residual clause, when it held at Mr. Barrett's 2005 trial that Section 848E is a crime of violence as a matter of law, the background law shows it must have. [00:01:42] Speaker 01: At that time, under this course decision in United States versus Perez Vargas, causing injury by indirect means did not qualify as the use of physical force necessary for an elements clause like Section 924C. [00:01:57] Speaker 01: The very examples of Perez Vargas, of placing a barrier in front of a car or exposing someone to hazardous chemicals, [00:02:04] Speaker 01: could kill a law enforcement officer as required by Section 848A. [00:02:08] Speaker 04: So would you say cause doesn't satisfy the requirements we need, even admitting that, even if we assume that intentionally also is a [00:02:22] Speaker 04: adverb to the word cause? [00:02:24] Speaker 01: That's true on the physical force element, which is what I'm arguing with respect to what the court did in 2005 and why it must have relied on residual clause. [00:02:36] Speaker 01: Once there is Davis error, we look to current law, and that's when we get into what state of mind is required by Section 840E. [00:02:45] Speaker 01: The use of force, intentional or not, could have been under Perez Vargas, which of course has now been overruled, but in 2005 it had just been issued. [00:02:58] Speaker 01: It could have been the placing of a barrier in front of a car, it could have been exposing some of the dangerous chemicals, which could cause injury and death. [00:03:05] Speaker 01: And therefore, it could kill. [00:03:06] Speaker 01: And that would not be the physical force that 924C requires as an element. [00:03:12] Speaker 02: I understood, Judge Ebell, perhaps incorrectly, to be focusing on the harmless error piece, the mens rea piece, and what does cause mean in that context in terms of the other language. [00:03:24] Speaker 01: It was the chief piece. [00:03:28] Speaker 01: I apologize. [00:03:31] Speaker 01: That's what I'm going to turn to now. [00:03:32] Speaker 01: It's our burden, of course, to prove by preponderance that the district court relied on the residual clause in order to show that there was Davis error. [00:03:41] Speaker 01: And then it's the government's burden to show that it's harmless in this situation. [00:03:48] Speaker 02: You get it, but my interest right now is on the harmlessness. [00:03:51] Speaker 02: Okay. [00:03:51] Speaker 02: So if you'll talk about that, please. [00:03:53] Speaker 01: Absolutely. [00:03:53] Speaker 02: What significance should we attach to cause in that context? [00:03:58] Speaker 02: And I think about Smith, and Smith's reference to the fact that a background principle is that cause has to have a mens rea. [00:04:06] Speaker 02: I mean, or interpretation of criminal statutes means that you look for a mens rea for terms. [00:04:12] Speaker 02: Well, I understood from your brief that you took the position that cause doesn't inherently have a mens rea. [00:04:19] Speaker 02: Am I correct on that? [00:04:20] Speaker 01: You are correct. [00:04:21] Speaker 01: In 848E it does not. [00:04:22] Speaker 02: Okay. [00:04:23] Speaker 02: Well then, as consistent with what Smith did, why are we not then called upon to find what would be the most naturally occurring, fitting, mens rea for cause in connection with 848? [00:04:36] Speaker 02: And why shouldn't that conclusion be the same one that the Court reached in Smith, which is, [00:04:42] Speaker 02: It is intentionality because that's what's surrounding it in that particular statute. [00:04:47] Speaker 01: Well, for a number of reasons. [00:04:49] Speaker 01: First of all, we look for mens rea to separate innocent from wrongful conduct. [00:04:54] Speaker 01: And all of the conduct in 848E is wrongful from the get-go because the [00:05:01] Speaker 01: killing has to occur in the context of a drug felony. [00:05:04] Speaker 01: So we already have somebody who's engaging in wrongful conduct. [00:05:08] Speaker 01: There's no reason to separate innocent from wrongful conduct. [00:05:12] Speaker 01: Just as, for example, in a felony murder statute, you commit the underlying felony, if the death results, we don't require a mens rea as to that, because you're already doing something illegal. [00:05:25] Speaker 01: In terms of causes, [00:05:29] Speaker 01: Cause itself, by the plain language of it, doesn't have a meaning of intentionality, as the other verbs in that sequence do. [00:05:38] Speaker 04: So you are relying on the fact that intentionally does not relate to cause. [00:05:45] Speaker 04: Right. [00:05:46] Speaker 04: Would you lose your case if we disagreed with that? [00:05:49] Speaker 04: If intentionally, well, the whole phrase is intentionally kills counsels, commands, induces, procures, or causes. [00:05:57] Speaker 04: with no commas or anything, would you lose? [00:06:02] Speaker 01: If there wasn't a comma, it would be grammatically problematic. [00:06:05] Speaker 01: But if there wasn't an or, but instead there was a comma, that would be one series. [00:06:11] Speaker 01: What we have instead is intentionally kills or, counsels, commands, induces, procures, or causes. [00:06:19] Speaker 01: We have intentionally kills separated by or from a verb series, and it's not [00:06:25] Speaker 01: one series. [00:06:26] Speaker 01: If it were, the Intentionally would carry over. [00:06:29] Speaker 01: Because it doesn't, Intentionally modifies only kills. [00:06:32] Speaker 01: And we know this even more surely from Section 2, 18 U.S.C. [00:06:38] Speaker 01: Section 2, which is one of the most used provisions in the Federal Criminal Code. [00:06:44] Speaker 01: The first four verbs in that verb series, counsels, commands, induces, procures, are in subsection 2A. [00:06:53] Speaker 01: and in the same order in 848E1B. [00:06:58] Speaker 01: Causes is in section 2B of 18 USC, and there it is willfully causes. [00:07:06] Speaker 01: Congress was obviously pulling the language of section 2 into 848E1B, and it omitted the modifier willfully. [00:07:16] Speaker 02: Well, on its face, when I first went through your brief, I found that persuasive. [00:07:20] Speaker 02: But when you think about it, [00:07:23] Speaker 02: If Congress felt the need to add the qualifier willfully in section two, why doesn't that all the more make it imperative that in the context of 848 that we find a mens rea to attach to cause? [00:07:38] Speaker 02: In other words, cause can't just sit out there. [00:07:41] Speaker 02: And if you do that, you're called upon to do the same inquiry that took place [00:07:47] Speaker 02: in Smith, which is it can't be a null set. [00:07:50] Speaker 02: You just can't have cause there and have no mens rea. [00:07:54] Speaker 02: And so if you're going to look for a mens rea, why aren't you looking at Smith? [00:07:59] Speaker 02: The court said there were three references to intentionality in Barrett. [00:08:04] Speaker 02: I'm sorry, in the context of 848. [00:08:08] Speaker 02: And if that's true, why isn't that the natural mens rea to attach? [00:08:13] Speaker 01: Well, remember that Section 2B [00:08:16] Speaker 01: doesn't have somebody acting improperly to begin with, as 848E1B and 848E1A in Smith do. [00:08:24] Speaker 01: You already have somebody who's committing an unlawful act in 848E1B. [00:08:29] Speaker 01: You don't for Section 2B. [00:08:31] Speaker 01: And Congress said, well, we have to have a mens rea. [00:08:34] Speaker 01: It willfully causes. [00:08:35] Speaker 01: We don't need that in Section 2A, because these other words, these other verbs, commands, counsels, induces, procures. [00:08:44] Speaker 01: They have an intentionality element inherent in them. [00:08:48] Speaker 01: Cause is does it. [00:08:49] Speaker 01: We need to put something in there. [00:08:51] Speaker 04: Wouldn't it be very odd to have all those other words and then just to stick in some brand new concept at the very end without any explanation for it? [00:09:02] Speaker 01: No, Congress wanted to reach to be as police protective as possible in 848E1B. [00:09:10] Speaker 01: And you already have somebody doing something wrongly. [00:09:12] Speaker 01: So Congress is just listing all the ways that somebody could produce the result of an intentional killing of an officer. [00:09:23] Speaker 01: Willful causes works because it operates as to people who are in a sufficient position of authority or influence in an organization where when they say something, it may cause an intentional killing. [00:09:40] Speaker 01: They are going to be held to that liability. [00:09:43] Speaker 01: That's what Congress was achieving in 848E1B. [00:09:47] Speaker 01: So it makes perfect sense. [00:09:49] Speaker 01: There may be some redundancy there, but there's often redundancy in a list of verbs like in the aiding and abetting statute. [00:09:57] Speaker 01: A lot of those have overlap, but that's not a problem. [00:10:00] Speaker 02: Well, then what would be the mens rea? [00:10:02] Speaker 02: If I, as the Godfather says, you know, I want you to kill Joe, well, I want you to teach Joe Blow a lesson, okay? [00:10:11] Speaker 02: And then Joe Blow ends up being killed, what's my mens rea in that circumstance? [00:10:18] Speaker 01: or do something to Joe, or take care of Joe. [00:10:20] Speaker 02: Well, take care of Joe, or what's wrong with teaching him a lesson? [00:10:24] Speaker 01: That's fine. [00:10:25] Speaker 01: It doesn't have to have a specific mens rea associated with it. [00:10:28] Speaker 01: You could be reckless as to the possibility. [00:10:32] Speaker 01: As long as an intentional killing results. [00:10:35] Speaker 02: Wait a minute. [00:10:36] Speaker 01: The other person is liable for the intentional killing, and you're liable because you caused it, whether you intended to or not. [00:10:43] Speaker 01: And that's why it's insufficient under Borden. [00:10:48] Speaker 01: something beyond recklessness that's inherent in causes. [00:10:52] Speaker 02: Causes could be accidental. [00:10:56] Speaker 02: There does not have to be a specific mens rea attached to it for criminal liability, you say, because it focuses on what the result is, which is the death of someone? [00:11:07] Speaker 01: Which is the intentional killing of the law enforcement officer. [00:11:10] Speaker 01: And it's somebody who's already doing something illegal to begin with. [00:11:13] Speaker 01: We're not dealing with a statute that says if you cause the intentional killing, [00:11:17] Speaker 01: you're liable for murder or whatever, and you're liable for whatever penalty. [00:11:24] Speaker 01: We're not dealing with something that doesn't require some pre-existing criminal conduct. [00:11:29] Speaker 01: And that's why we don't need a separate mens rea. [00:11:31] Speaker 01: If this were just something that said somebody who causes the intentional killing of a law enforcement officer is subject to 20 years in prison or life in prison or death, as 848E1B says, then we would need a mens rea. [00:11:46] Speaker 03: So what if the words were spoken with such due care that no reasonable person would take them to mean it was an order to go kill somebody, but the person did it anyway. [00:12:01] Speaker 03: Guilty. [00:12:02] Speaker 01: Guilty. [00:12:04] Speaker 01: And of course here in determining what happened, I mean not what happened, what the legal result is, [00:12:13] Speaker 01: We use the categorical approach in this situation under Borden. [00:12:17] Speaker 01: So if you can cause the intentional killing of a law enforcement officer carelessly, accidentally, recklessly, the statute allows for that. [00:12:29] Speaker 01: And as a categorical matter, it doesn't suffice under Borden. [00:12:32] Speaker 01: And that makes Mr. Barrett's conviction under count two [00:12:39] Speaker 01: harmful, the Davis era harmful on that count. [00:12:41] Speaker 01: And because the government hasn't shown it's not harmful on us to count one, we should also get re-sentencing on that count. [00:12:48] Speaker 02: Well, you haven't won on count two yet, so why don't we start with count two. [00:12:51] Speaker 01: If we win, of course. [00:12:52] Speaker 02: And as it relates to that, on the colloquy that you were having with Judge Carson, [00:12:59] Speaker 02: The law frowns on strict liability offenses. [00:13:01] Speaker 02: It has consistently done that. [00:13:03] Speaker 02: I mean, the whole idea that there needs to be some mens rea, it just runs through the law. [00:13:09] Speaker 02: And I understand this point about separating innocent conduct from other conduct, but what about separating levels of severity of conduct? [00:13:19] Speaker 01: But we have felony murder. [00:13:20] Speaker 01: We have death results statutes. [00:13:22] Speaker 01: We have all kinds of statutes that attach [00:13:26] Speaker 01: enhanced liability based on the result. [00:13:29] Speaker 01: And remember again, this is critical, that we already have somebody who's engaging in illegal conduct because they're violating a drug statute at the outset. [00:13:41] Speaker 02: I got that. [00:13:42] Speaker 02: But felony murder statutes and statutes of that sort. [00:13:45] Speaker 02: those statutes aren't surrounded, as in this instance, by language of intentionality. [00:13:51] Speaker 02: I mean, the whole context, if you accept the premise that, as a general matter, and I understand separating innocent conduct from criminal conduct, but if words are understood in their context, and that's a [00:14:06] Speaker 02: Classic statutory interpretation principle. [00:14:09] Speaker 02: Well, the whole context here screams intentionality. [00:14:12] Speaker 02: I mean, why in the world, and I think this is consistent with something Judge Edel said earlier, why in the world do we now view this word causes as in sitting out there on an island, which is, to your point, I'm not saying that couldn't happen. [00:14:27] Speaker 02: I'm not saying there are statutes that wouldn't allow for that. [00:14:30] Speaker 02: But in this particular statute, it doesn't sit on an island. [00:14:33] Speaker 01: But we have intentionally before kills and then separate it and not part of a series. [00:14:38] Speaker 01: If Congress had wanted to make the verbs in the five verbs that follow the or all take on an intentionality requirement, it could have put intentionally before that. [00:14:48] Speaker 01: That's an easy fix. [00:14:49] Speaker 04: You're saying intentionally only applies to kills. [00:14:52] Speaker 04: What if we didn't have anything after counsels, if it says intentionally kills or counsels? [00:14:58] Speaker 04: Wouldn't you agree that intentionally applies to both? [00:15:01] Speaker 04: Well, if it's just two verbs, perhaps. [00:15:04] Speaker 04: If it just said kills or counsels intentionally, you would agree intentionally applies to both. [00:15:09] Speaker 04: That would be a series, separated by the or. [00:15:11] Speaker 04: If we had intentionally kills, counsels, commands, induces, or causes, you would agree that all applies. [00:15:18] Speaker 01: Without the comma, yes. [00:15:19] Speaker 01: But it's separated here. [00:15:22] Speaker 01: We not only have that separation, that grammatical text, but we also have section 2b. [00:15:27] Speaker 04: Which comma do you think does the separating, the one after counsels or the ones after procures? [00:15:35] Speaker 01: Well, those are all within the verb string. [00:15:37] Speaker 01: I think the separation. [00:15:38] Speaker 01: That's right. [00:15:39] Speaker 04: They're all in a series. [00:15:39] Speaker 04: They have a different job to do. [00:15:41] Speaker 01: But in a series, sometimes you put a comma before the or and sometimes you don't. [00:15:45] Speaker 01: But this is intentionally kills or with no comma. [00:15:49] Speaker 01: No, nothing. [00:15:49] Speaker 01: And then a series of five verbs that are obviously in a series. [00:15:56] Speaker 02: Let me ask you this, Ms. [00:15:57] Speaker 02: Trinkus. [00:16:00] Speaker 02: I know those resulting statutes, and I'm thinking of one, and I can't give you the specific statutory citation. [00:16:07] Speaker 02: But in a case I had where, essentially, you have somebody who they distribute drugs and death results. [00:16:14] Speaker 02: The question was, could that person be held liable? [00:16:18] Speaker 02: The answer in that case was, yes, they could. [00:16:20] Speaker 02: Death resulted. [00:16:21] Speaker 02: OK. [00:16:24] Speaker 02: did not have anything before death. [00:16:27] Speaker 02: It did not have any qualifier before death. [00:16:30] Speaker 02: It just said death results. [00:16:32] Speaker 02: And it occurs to me that that reinforces the notion that there should be some significance associated with the fact that Congress put intentionally before death here, causes intentional [00:16:45] Speaker 02: I mean, and so why isn't, you know, all of these other causes and resulting statutes, I would wager, although I don't know right now, most of them don't have that qualifier. [00:16:57] Speaker 02: And here you have a clear qualifier that suggests that this whole statute is infused with intentionality. [00:17:03] Speaker 01: Well, the qualifier shows that the person who does the killing, that has to be an intentional killing. [00:17:10] Speaker 01: If you cause that, you're liable too. [00:17:12] Speaker 01: If you're somebody who can cause that result, then you get to be liable too. [00:17:19] Speaker 01: And that's just a recognition that Congress was trying to reach not just the underlings, but [00:17:23] Speaker 01: people in positions of authority within an organization. [00:17:26] Speaker 02: And if it is shorn of any mens rea causes, then under your view, Borden is not satisfied. [00:17:34] Speaker 02: In other words, you cannot, the test of more than recklessness cannot be satisfied. [00:17:40] Speaker 01: That's correct, because we're looking at the person who causes it, not the person who does the intentional killing. [00:17:44] Speaker 02: I understand that. [00:17:45] Speaker 01: And therefore, that person does not have [00:17:48] Speaker 01: even recklessness. [00:17:49] Speaker 01: But even if it were recklessness, that doesn't suffice under Borden. [00:17:53] Speaker 01: And as a categorical matter, even though many times somebody can cause the death and it will be intentional, if it can be committed under the language of 848E1B with a lesser mental state, one that doesn't satisfy Borden, that means that there is not a qualifying crime of violence here. [00:18:12] Speaker 04: So you would say that wouldn't be satisfied if you took out all those strings there and you just simply said, intentionally causes the intentional killing. [00:18:26] Speaker 04: You would say that doesn't have Sienta. [00:18:27] Speaker 01: That's correct. [00:18:29] Speaker 01: The Sienta is supplied by the fact that you have to be engaged in the illegal act, the drug felony act, under 848E1V. [00:18:38] Speaker 03: So that's a c-enter. [00:18:39] Speaker 03: So if Congress is just, if we're only applying this to people who have engaged in a drug felony, why does Congress care if the killing is intentional? [00:18:51] Speaker 03: Why aren't they trying to sweep in all deaths caused by that felony in one way or another? [00:18:59] Speaker 01: Well, they're looking to who does. [00:19:03] Speaker 01: the act to make sure that person is captured, and then they're encompassing in that the, well. [00:19:10] Speaker 03: Who cares? [00:19:11] Speaker 03: They're punished. [00:19:11] Speaker 03: I mean, we're saying that in one instance, they want to punish someone who didn't mean for the death to occur. [00:19:16] Speaker 01: And they could have done it that way if they'd chosen to, but there's nothing irrational about them doing it the way they did. [00:19:26] Speaker 01: Okay, if there's no further questions, we'd ask the court vacate Mr. Barrett's conviction and sentence on count two and that it also, because the government has not met its burden of showing that the Davis error did not affect count one, that it also vacate the sentence on count one. [00:19:44] Speaker 01: Thank you. [00:19:55] Speaker 00: Morning, Your Honors. [00:19:56] Speaker 00: May it please the Court, Scott Meisler on behalf of the United States. [00:20:00] Speaker 00: Obviously, the colloquy with my colleague focused on the merits. [00:20:04] Speaker 00: I just want to remind the Court that there are three paths to affirmance in this case. [00:20:07] Speaker 00: There are two procedural in addition to the merits. [00:20:10] Speaker 00: We view those as threshold grounds. [00:20:12] Speaker 00: I won't belabor the point if the court's not interested in them. [00:20:14] Speaker 04: I just would like to make sure whether count one is at play or not here. [00:20:18] Speaker 04: I had not thought it was. [00:20:20] Speaker 04: Mr. Pincus is arguing that it is. [00:20:22] Speaker 04: I'd like just a two-sentence your take on that. [00:20:26] Speaker 00: I don't think it is, Your Honor, for several reasons, one of which is he doesn't have a certificate of appealability. [00:20:32] Speaker 00: The district court denies COA on that ground. [00:20:35] Speaker 00: I think he required one. [00:20:36] Speaker 00: That's one. [00:20:37] Speaker 00: Second one is this is not a sentencing package case. [00:20:40] Speaker 00: Usually sentencing package cases are where sentences are interdependent. [00:20:44] Speaker 00: The sentence on multiple counts are interdependent. [00:20:46] Speaker 00: In this case, this was tried as a death penalty case. [00:20:49] Speaker 00: In this case, you had a jury recommendation of life imprisonment under 18 USC 3594. [00:20:54] Speaker 00: That sentence was binding on the district court. [00:20:57] Speaker 00: Unanimous jury recommendations binding on the district court. [00:21:00] Speaker 00: So again, these are not interdependent. [00:21:02] Speaker 04: The district court imposed... Let's take it off the table, okay? [00:21:05] Speaker 00: I think that's off the table, for those reasons alone. [00:21:08] Speaker 00: Thanks. [00:21:10] Speaker 02: I do want to talk about the concurred sentencing argument. [00:21:14] Speaker 02: I mean, did you make that argument in the district court? [00:21:16] Speaker 00: We did not. [00:21:16] Speaker 00: Okay. [00:21:17] Speaker 02: Well, why shouldn't that argument suffer the same fate that it did in Smith, which is that you didn't make it in the district court, and why should we deem it to be forfeited now? [00:21:27] Speaker 00: That's within the court's discretion. [00:21:29] Speaker 00: It is forfeited. [00:21:30] Speaker 00: I think on the facts of Smith, the court found two aspects of the government of the procedural posture significant. [00:21:36] Speaker 00: The government had forfeited it first. [00:21:38] Speaker 00: Secondly, the government had affirmatively agreed to relief on other counts on a theory that was inconsistent with its concurrent sentencing doctrine and theory on appeal. [00:21:47] Speaker 00: So it was not just pure forfeiture. [00:21:50] Speaker 00: It was forfeiture plus almost a feel of estoppel. [00:21:52] Speaker 00: The government was arguing inconsistently with the position it had taken in the district court. [00:21:56] Speaker 00: You don't have that here. [00:21:57] Speaker 00: The government opposed relief in the district court consistently, although it did so on grounds other than the concurrent sentencing doctrine. [00:22:05] Speaker 00: I'd also just mention that in some of the cases that we've cited from outside of this circuit, I believe the Second Circuit decisions in Al-Awali and Qasir, those were cases where the district court had not relied on the concurrent sentencing doctrine. [00:22:17] Speaker 00: And nonetheless, the Court of Appeals affirmed based on a version of that doctrine. [00:22:21] Speaker 02: Well, the other reason that they court cited in Smith was expenditure of judicial resources. [00:22:28] Speaker 02: And by God, we've expended judicial resources in this case. [00:22:31] Speaker 02: And Smith talks about below, he talks about above, here. [00:22:35] Speaker 02: And that's a reason that you generally apply the concurrent sentencing doctrine. [00:22:40] Speaker 02: And I take it you would agree that resources have been expended so far, right? [00:22:45] Speaker 00: They have been. [00:22:46] Speaker 00: And I'm loathe to criticize the reasoning in Smith because we're going to pivot to relying on it. [00:22:50] Speaker 00: But I will just say this. [00:22:52] Speaker 00: I think as a practical matter in almost all the cases where concurrent sentencing is raised in the district court or on the court of appeals, it's raised as an alternative argument. [00:23:00] Speaker 00: I don't think any competent prosecutor is going to say, I'm resting solely on this and I'm not going to brief to you, Judge, whether this actually qualifies as a crime of violence, whether this defendant is actually entitled to relief and has cleared all applicable procedural bars. [00:23:15] Speaker 00: So it's always going to be [00:23:16] Speaker 00: that the parties have to brief it. [00:23:17] Speaker 00: So I didn't find that particular aspect of Smith particularly convincing, but I think it is within the court's discretion, Judge Holmes, and we don't rely exclusively on that argument on appeal. [00:23:27] Speaker 02: Why don't you talk about, if you will, the argument that was made by opposing counsel in the related to Section 2? [00:23:37] Speaker 02: Because at least on its face, it seems to me that's a pretty powerful argument, because it suggests that [00:23:42] Speaker 02: that causes, that one, in section two, a lot of those other verbs were in section A, I guess, and in section B, willfully was necessary to modify causes. [00:23:58] Speaker 02: And it seems to me that supports the notion that causes really doesn't have any work to do in terms of mens rea on its own. [00:24:06] Speaker 00: I take the point, Your Honor. [00:24:08] Speaker 00: I think I read it a little bit differently, [00:24:10] Speaker 00: I think in line with some of the questions that Judge Ebell was asking to my opposing counsel, it's that you might need the word willfully to assure a mens rea in Section 2, because it's 2B. [00:24:21] Speaker 00: It's separated. [00:24:22] Speaker 00: It's a different clause altogether from that first clause of 2B, aides, abets, counsels, commands, procures. [00:24:30] Speaker 00: Those have a well-settled intentionality requirement at common law. [00:24:34] Speaker 00: and under a long string of Supreme Court cases. [00:24:36] Speaker 00: So when Congress writes a statute and separates that and says, oh, we're going to do a causation provision in clause B, they might fear that a court could read it in a strict liability way or as applying a minimal mens rea requirement. [00:24:49] Speaker 00: So to ensure a mens rea that's commensurate with the common law traditional understanding of aiding and abetting liability, [00:24:56] Speaker 00: They put in woefully. [00:24:57] Speaker 00: You don't need that in a statute that's constructed as is section 848E here because of the way those words are all, I think as you put it, Your Honor, infused with intentionality. [00:25:09] Speaker 00: When you have a statute that is bookended with intentionally kills, intentional killing, and to the point about death results provisions, which I think is an interesting comparator, the D.C. [00:25:19] Speaker 00: Circuit makes this point in Smith. [00:25:21] Speaker 00: You have some wordings that affect in 848e. [00:25:25] Speaker 00: It says, on such killing results. [00:25:28] Speaker 00: But the reference for such killing is the intentional killing. [00:25:32] Speaker 00: So even when you have Congress resorting back to that language of death resulting, you have it referring back to intentionality. [00:25:39] Speaker 00: So I think that's the simplest explanation to my mind, Your Honor, is you don't need the wolf, willfully, because of the way the 848 infuses intentionality through all the verbs. [00:25:50] Speaker 00: And I think we had an interesting discussion up here about the commas and how changing the wording slightly could affect the degree to which the word intentional carries across the verb string. [00:26:02] Speaker 00: But I think if you went with opposing counsel's view of the statute here, it would be almost a unicorn in federal law. [00:26:09] Speaker 00: I'm just not aware of any example that has been cited in the briefing in this case or in my research where a different mens rea has applied to a different means of committing the same crime. [00:26:20] Speaker 00: We do occasionally encounter, in this case as an example, different mens rea applying to different elements of an offense. [00:26:26] Speaker 00: Intentional killing. [00:26:27] Speaker 04: You're saying we won't find another statute that has a string of verbs where that string contains verbs that some do require intentionality and some don't. [00:26:38] Speaker 00: I think you can find it for different elements. [00:26:40] Speaker 00: So here you've got intentional killing. [00:26:42] Speaker 04: Well, there's some that don't require any mens rea, but others that do. [00:26:45] Speaker 04: You just won't find that in a statute. [00:26:47] Speaker 00: I think I haven't seen any that have been cited in the briefs here about applying a different mens rea to various means of satisfying the same element of the crime. [00:26:56] Speaker 02: Using means in the in the sort of math. [00:26:59] Speaker 00: Exactly. [00:26:59] Speaker 00: Exactly. [00:27:00] Speaker 00: Exactly. [00:27:01] Speaker 00: A different manners of committing the offense. [00:27:04] Speaker 00: Right. [00:27:04] Speaker 00: Killing or commanding inducing prompting the killing would have to be treated differently. [00:27:09] Speaker 00: I just haven't seen any examples that were cited in the briefing. [00:27:12] Speaker 00: And in the one example I think that Mr. Pinkes cited in reply on page 13 of his reply was a contract law case where it severed out the key term by saying or other, or other. [00:27:22] Speaker 00: And that's not what Congress meant to do here. [00:27:24] Speaker 00: They meant to capture just different manners of effectuating intentional killings. [00:27:30] Speaker 00: So again, Your Honor, we have the merits issue here, which the court would reach if it elects not to exercise its discretion to affirm based on the concurrent sentencing doctrine. [00:27:40] Speaker 00: And the last procedural point that I'll mention, because it has a kind of a jurisdictional threshold flavor under 2255 H, is whether the claim here is really based on the residual clause, whether this is a true Davis [00:27:53] Speaker 00: constitutional claim or is instead what this court has referred to as poorly disguised statutory claims. [00:27:59] Speaker 00: And that's tricky because it requires the court to look backwards in time to take what this court has called a snapshot of the moment. [00:28:07] Speaker 00: And Mr. Pink has referred to the Perez Vargas case, which came out shortly before trial commenced here. [00:28:12] Speaker 00: As I read the record, no one cited Perez Vargas to the district court. [00:28:16] Speaker 00: And instead, I think what the district court most naturally would have looked to [00:28:20] Speaker 00: were two things. [00:28:21] Speaker 00: One is this court's decision from 1992, I think, in United States versus Lujan, where this court had held that an involuntary manslaughter, that manslaughter under California law, unlawful killing of a human being without malice, was clearly an elements clause offense, the court had said. [00:28:38] Speaker 00: So that, to me, would have been the most on-point case, and especially because in Mr. Barrett's own proposed jury instructions, he said, he quoted only the elements clause and said, [00:28:48] Speaker 00: that murder and manslaughter were crimes of violence under the Elements Clause. [00:28:54] Speaker 02: Well, the Paris Vargas was in play in 2005. [00:28:57] Speaker 00: It was out there. [00:28:59] Speaker 00: To my knowledge, no one cited it to the district court. [00:29:01] Speaker 02: Well, that doesn't matter. [00:29:02] Speaker 02: I mean, we're talking about what would have been the background that the court is presumed to have been aware of, right? [00:29:08] Speaker 00: Yes, and I think that the court would have had to reconcile two lines of cases from this court, one saying that unlawful killing, even without malice, [00:29:16] Speaker 00: is a crime of violence, clearly a crime of violence, the court said in Lujan, with the then recent case in Perez Vargas, which is not about a homicide statute, it was a Colorado third degree assault. [00:29:26] Speaker 00: So the court would have had to extrapolate from that that 848E reaches [00:29:31] Speaker 00: poisonings, exposure to chemicals, placing a barrier in front of a law enforcement officer. [00:29:36] Speaker 02: And so you're telling me that, in your view, Paris Vargas, if it is in play, would not have resolved the situation of that first step of the analysis? [00:29:46] Speaker 00: Correct, I think it would have been a difficult question. [00:29:48] Speaker 00: I do agree that 848E reaches those kind of situations, it reaches a poisoning of a law enforcement officer, but that would not have been patented, I think, to a district court. [00:29:57] Speaker 00: It would have been required to reconcile different lines of cases from this court. [00:30:01] Speaker 00: And if, as Mr. Pink has conceded, he bears the burden. [00:30:06] Speaker 00: He has to show more likely than not. [00:30:08] Speaker 00: So if it's a wash, if you think these cases are a wash and it would have been hard, I don't think he's met that burden. [00:30:12] Speaker 02: Well, if you sitting here agree that 848 does reach the poisoning situation, [00:30:16] Speaker 02: Why is it a watch? [00:30:18] Speaker 02: I mean, if you read the examples in Paris Vargas and you say that 848 would encompass those examples, what would a district court have to do? [00:30:28] Speaker 02: I mean, it sees what our law is and it sees what it needs to do. [00:30:32] Speaker 02: What's the problem? [00:30:33] Speaker 00: I think it would have been an extension of this court's case law, right? [00:30:36] Speaker 02: It would have had to first decide... Well, Paris Vargas was an extension of our case. [00:30:38] Speaker 00: Correct, but I think it would have been an extension of Paris Vargas to the distinct category of homicides crimes. [00:30:44] Speaker 00: and taking it beyond the sentencing guidelines situation. [00:30:48] Speaker 02: You have not suggested that we cannot consider their Paris Vargas argument, right? [00:30:54] Speaker 00: No, not at all, Your Honor. [00:30:56] Speaker 00: You can absolutely consider that. [00:30:57] Speaker 00: But I think you have to look at other aspects of this court's case law beyond Paris Vargas. [00:31:03] Speaker 00: And the one thing I'll mention, and I'm hesitant to get into the Mathis territory that Your Honor mentioned, but the one other area of this court's cases that weren't super clear in 2005 when this case went to trial, [00:31:13] Speaker 00: was whether and how you apply the modified categorical approach. [00:31:18] Speaker 00: And so Perez-Marquez itself has a whole preamble suggesting that you can apply the modified categorical approach, meaning you can consider conviction documents to narrow the basis for a prior crime. [00:31:29] Speaker 00: And Perez-Marquez rested, I think, on the supposition that a court could do so. [00:31:34] Speaker 00: It was unable to do so, the court said, because the relevant conviction documents were not in the record before it. [00:31:40] Speaker 00: I think if a court would have read Perez-Marquez and said, [00:31:43] Speaker 00: I'm in trouble here under the elements clause. [00:31:44] Speaker 00: Let me see if I can narrow the basis for Mr. Barrett's offense. [00:31:47] Speaker 00: Let me look at the conviction records. [00:31:49] Speaker 00: I think the court would have quickly seen just from the way the indictment is laid out, from the way the jury was instructed, and from the fact that the jury returned special interrogatories, finding that Mr. Barrett committed this crime intentionally. [00:32:02] Speaker 00: This was an intentional murder case. [00:32:03] Speaker 00: It was about intentional murder with a firearm, and that would have ruled out [00:32:07] Speaker 00: those hypotheticals from Paris Vargas about placing a barrier in front of someone or exposing them to hazardous chemicals. [00:32:14] Speaker 00: So I don't think we need this court to go so far down the rabbit hole to consider how the modified categorical approach would have applied in 2005. [00:32:21] Speaker 00: I'm just saying it's not self-evident. [00:32:24] Speaker 00: And I think if it's not self-evident and you're at equipoise, then the party that bears the burden of persuasion loses. [00:32:30] Speaker 00: And that, in this case, is Mr. Barrett. [00:32:33] Speaker 00: And the last thing I'll say about that, Your Honor, [00:32:36] Speaker 00: Mr. Pinkus cites in his reply brief a case called Bowen that was decided by this court in 2019 as foreclosing the use of the modified categorical approach at that time in the mid 2005s. [00:32:47] Speaker 00: But again, this court requires a snapshot. [00:32:50] Speaker 00: Just like I can't look to delegati and say, the elements clause has always meant this reaches intentional causation of bodily injury, I don't think the defense can look to Bowen and say, this court's kind of clarification [00:33:04] Speaker 00: of when and where you use the modified categorical approach at a given time. [00:33:07] Speaker 00: I don't think he can rely on that. [00:33:09] Speaker 00: The district court would have had before it, as the most recent case, Perez Vargas. [00:33:12] Speaker 00: That case strongly suggests, if not holds, that you can use the modified categorical approach for elements clause determinations. [00:33:19] Speaker 00: So that's what would have been before the court. [00:33:20] Speaker 00: And if the court had looked at those conviction documents, the indictment... Let me get the pause button. [00:33:26] Speaker 02: Do I understand you to be saying that as it relates to this Bowen case, to the extent that Bowen was saying what the state of the law was in 2005, that we should not presume under a snapshot theory that that was the state of the law, is that your position? [00:33:47] Speaker 00: I think I'm saying that the district court [00:33:49] Speaker 00: would not have understood this court's cases as Bowen revised them to say. [00:33:55] Speaker 02: We're all about the law. [00:33:56] Speaker 02: And in other words, the bottom line is we engage in the legal fiction that the court understood what the law was. [00:34:03] Speaker 02: And I think of the example of the qualified immunity context. [00:34:06] Speaker 02: If you have a subsequent case and that case says, well, in 2005, that's what the law is, then the parties are subject to what that statement is. [00:34:15] Speaker 00: Well, that's a difficult question, Your Honor. [00:34:17] Speaker 00: I mean, part of my discomfort here is that I think Bowen misread those cases. [00:34:21] Speaker 00: I'll just be frank with the court. [00:34:22] Speaker 00: I think Bowen misread the cases on which it relied. [00:34:24] Speaker 02: We were fallible, but we do what we can, and that's where we are. [00:34:29] Speaker 00: But I do think you have an issue, and I would direct the court to the way that this court described this snapshot inquiry in Snyder. [00:34:35] Speaker 00: And so if we the government can't rely on [00:34:40] Speaker 00: what the law should have always been because when a court construes a statute and it construes the elements clause, it's saying what the law always was, right? [00:34:46] Speaker 00: And so if Bowen's looking back and saying that this is what the law always was, it's hard to reconcile that with Perez-Vargas because Perez-Vargas sure seemed to understand that the modified categorical approach was available. [00:34:57] Speaker 00: And that was the most recent case that the district court would have had before it if it had actually considered these issues back in 2005. [00:35:04] Speaker 00: So for any of those three reasons, concurrent sentence in doctrine 2255H or on the merits, we would ask that the judgment be affirmed. [00:35:11] Speaker 02: Thank you.