[00:00:03] Speaker 04:
All right, thank you.

[00:00:04] Speaker 04:
We'll proceed to our arguments this morning.

[00:00:07] Speaker 04:
We have four cases set for argument.

[00:00:11] Speaker 04:
We may or may not take a break at some point.

[00:00:15] Speaker 04:
So if you could keep an eye on where we are, we would appreciate that.

[00:00:21] Speaker 04:
Our first case this morning is United States versus Campbell, number 236186.

[00:00:29] Speaker 04:
And counsel, you may proceed.

[00:00:40] Speaker 02:
Federal public defender Amy Seny on behalf of the appellant, Michael Campbell.

[00:00:44] Speaker 02:
May it please the court.

[00:00:47] Speaker 02:
Responding to a report of a backyard burglary, police arrived to find Mr. Campbell in the front driveway, holding a half-eaten hamburger, wearing a bright orange shirt and reading glasses, and playing loud music with his dog in his car.

[00:01:03] Speaker 02:
Despite arriving just one minute after the 911 call,

[00:01:06] Speaker 02:
Police observed no evidence around Mr. Campbell of a burglary supposedly just interrupted.

[00:01:12] Speaker 02:
He had no flashlight, no burglary tools, no potentially stolen property.

[00:01:17] Speaker 02:
Instead, Mr. Campbell immediately informed the officer that he lived there.

[00:01:21] Speaker 02:
He handed over his wallet of his own accord, correctly gave the home's full address when asked, pointed to home security cameras filming their interaction, listed the name and occupation of his neighbor,

[00:01:35] Speaker 02:
identified the 911 caller by name as his wife, and asked police to call her back.

[00:01:42] Speaker 02:
These facts, when viewed with common sense and ordinary human experience, make the notion that Mr. Campbell was a burglar nonsensical.

[00:01:51] Speaker 02:
No reasonable officer could believe that a burglar would interrupt his crime to feed a hamburger to his dog, adamantly offer his ID to responding police, and then ask to call back the very person who called 911 in the first place.

[00:02:06] Speaker 02:
Because reasonable suspicion dissipated before police seized Mr. Campbell's firearm, it should have been suppressed.

[00:02:13] Speaker 02:
This court should reverse.

[00:02:17] Speaker 02:
Reasonable suspicion must exist at every moment throughout a detention, and the government has the burden to show that it did.

[00:02:25] Speaker 02:
And here, the government has never articulated, because it can't, how an objectively reasonable officer could continue to believe that Mr. Campbell was a burglar.

[00:02:36] Speaker 02:
under the totality of the circumstances here.

[00:02:40] Speaker 01:
Well, I think the toughest fact for you in arguing that suspicion dissipated is this wasn't just a neighbor that called or someone happening by that thought they saw something in the back of the house.

[00:02:54] Speaker 01:
This was the homeowner who called and said, identified a black man and a woman who were removing things, she said, I believe.

[00:03:05] Speaker 01:
from her back porch and police get there within one minute.

[00:03:13] Speaker 01:
And Mr. Campbell, who is a black man, is walking from the backyard of the home from where, you know, the homeowners call from that home.

[00:03:27] Speaker 01:
He's walking from the backyard.

[00:03:30] Speaker 01:
And so those are difficult facts.

[00:03:33] Speaker 01:
And I understand what you're saying about his attempt to say who he was and explain.

[00:03:40] Speaker 01:
But the officer knows that the homeowner has called and said, this is happening in my backyard.

[00:03:48] Speaker 01:
And one minute later, the officer gets there.

[00:03:51] Speaker 01:
And there's someone coming from the backyard.

[00:03:54] Speaker 01:
That's pretty strong confirming facts.

[00:04:01] Speaker 01:
The idea that he wanted to confirm with Mr. Campbell that he resided there and continued to ask him to basically cooperate so that he could look and find his address and that sort of thing, I assume.

[00:04:24] Speaker 01:
Why does that dissipate the suspicion?

[00:04:28] Speaker 02:
So a couple of things, Your Honor.

[00:04:31] Speaker 02:
I, my understanding of the record is that he was by the trash cans.

[00:04:37] Speaker 02:
I don't believe the officer saw him walking from the backyard.

[00:04:40] Speaker 01:
Well, he, he's outside at the home, which the homeowner called from, called, I don't know if the homeowner was there, but it's the home, the address she identified as her home.

[00:04:51] Speaker 00:
Sure.

[00:04:52] Speaker 01:
And it's coming from the backyard one minute later.

[00:04:54] Speaker 01:
I don't,

[00:04:55] Speaker 01:
I don't know that it matters exactly where he is.

[00:04:57] Speaker 01:
It's certainly strong corroborating evidence of the homeowner's call.

[00:05:03] Speaker 02:
So I think the one minute fact actually cuts both ways.

[00:05:07] Speaker 02:
So I agree that at the very beginning, that's certainly Mr. Campbell's in a bad spot as you're on our side.

[00:05:13] Speaker 02:
But actually the fact that the homeowner said there's people in the backyard removing things, the officer arrives a minute later.

[00:05:20] Speaker 02:
At the beginning, it looks bad, but then the officer is able to see that there aren't any things around Mr. Campbell that have been removed that could be stolen property.

[00:05:31] Speaker 02:
And

[00:05:32] Speaker 02:
There's no evidence that he's engaged in a burglary.

[00:05:35] Speaker 02:
He doesn't have a mask.

[00:05:37] Speaker 02:
He doesn't have a flashlight.

[00:05:38] Speaker 02:
He doesn't have burglary tools.

[00:05:40] Speaker 02:
There's nothing for us to look at objectively in that moment.

[00:05:47] Speaker 02:
He's in the wrong place, certainly, but there's nothing to show that he was engaged in a burglary.

[00:05:53] Speaker 02:
And in fact, he's holding a hamburger.

[00:05:55] Speaker 01:
All the officers trying to do is make sure that Mr. Campbell is who he says he is.

[00:06:00] Speaker 01:
That's all he's trying to do at this point.

[00:06:03] Speaker 01:
And he wants to confirm with the homeowner, which makes sense, that he's who he says he is.

[00:06:12] Speaker 02:
Right, and so we might be in a different spot if the seizure of the firearm had happened exactly

[00:06:19] Speaker 02:
that second that the officer arrived.

[00:06:22] Speaker 02:
But we don't have to answer that question because five minutes passed before the officer sees the firearm.

[00:06:27] Speaker 02:
So we're just looking at whether there's reasonable suspicion after those five minutes.

[00:06:31] Speaker 02:
And the officer of course is not free to ignore all of the information that he learned in the meantime.

[00:06:40] Speaker 03:
Isn't it correct that, A, it was at 11.45 p.m.

[00:06:43] Speaker 03:
at night?

[00:06:45] Speaker 03:
Secondly, that he didn't do what the officer wanted him to do.

[00:06:50] Speaker 03:
Raise his hands.

[00:06:52] Speaker 03:
He kept putting his hands down.

[00:06:54] Speaker 03:
And it was just sort of a flimsy little event that the officer didn't know what was going on, and he was trying to figure it out.

[00:07:04] Speaker 03:
Now, why does that immediately do away with reasonable suspicion?

[00:07:11] Speaker 03:
So, because- He says three or four times, put your hands up, and he kept putting them down.

[00:07:19] Speaker 03:
And you know what happens when a guy puts his hands down and it turns out he's got a gun in his belt like this gentleman did?

[00:07:26] Speaker 03:
The policeman doesn't have a chance in this situation.

[00:07:29] Speaker 02:
So we have to look at conduct in context, of course.

[00:07:34] Speaker 02:
We know that from all of this court's cases, but particularly Frazier.

[00:07:38] Speaker 02:
where evasive actions have to be viewed in context.

[00:07:41] Speaker 02:
And so here we know from the video that the reason that he's reaching in his hands, his hands, he's lowering his hands and reaching towards his pockets is because he's trying to grab his wallet.

[00:07:52] Speaker 02:
to give it to the officer.

[00:07:53] Speaker 02:
He eventually succeeds in doing that.

[00:07:56] Speaker 02:
But the fact that he's willing to risk defying an officer's command to give his wallet is inconsistent with that of a burglar because he's trying so hard to get the officer to verify his identity.

[00:08:07] Speaker 02:
He says, can I give you my wallet over and over and over again?

[00:08:11] Speaker 02:
And finally, he just grabs the wallet and gives it to the officer.

[00:08:14] Speaker 02:
And so in context, that's not suspicious of

[00:08:19] Speaker 02:
It shows the exact opposite, and it's exactly what we would expect of a homeowner.

[00:08:25] Speaker 02:
And to Your Honor's point about the officer trying to figure it out, you know, reasonable suspicion is an objective standard.

[00:08:32] Speaker 02:
We're not looking at what the officer subjectively was feeling or what he was trying to do.

[00:08:37] Speaker 02:
We just look at whether there's reasonable suspicion at the moment before the firearm is seized.

[00:08:43] Speaker 02:
And when we do that, it's

[00:08:47] Speaker 02:
The fact that the officer is trying to figure it all out and trying his best doesn't change the objective facts that existed in that moment.

[00:08:56] Speaker 02:
The court still has to look at those objective facts and then determine whether they support reasonable suspicion or not.

[00:09:04] Speaker 02:
I think the cases cited in the briefing about suspicion of burglary are really helpful because they provide helpful contrasts on both sides.

[00:09:17] Speaker 02:
you have the cases McCullough and Goebel, even a couple of cases cited by the government, Sanchez and Shelton, where the suspects didn't claim to be the homeowners and the ones who did claim to have a valid reason, the court said there was reasonable suspicion at the end that didn't dissipate because their stories didn't add up.

[00:09:40] Speaker 02:
In Goebel, the

[00:09:42] Speaker 02:
Suspect claimed he was picking up a friend at three in the morning, but couldn't name the last name of the friend and Didn't know the address didn't even know the street that they were on and Here.

[00:09:53] Speaker 02:
Mr. Campbell.

[00:09:54] Speaker 02:
It's clear from context.

[00:09:55] Speaker 02:
He's doing everything he possibly can to try to convince

[00:09:59] Speaker 02:
the officer that he is a resident.

[00:10:01] Speaker 02:
He offers his car insurance paperwork.

[00:10:05] Speaker 02:
He lists the name of his neighbor.

[00:10:07] Speaker 02:
Those are the carters.

[00:10:08] Speaker 02:
She's a former police officer.

[00:10:09] Speaker 02:
You're on camera.

[00:10:11] Speaker 02:
We have a ring that's on my phone.

[00:10:13] Speaker 02:
These are all details that an officer doesn't have to accept as true, but using ordinary human experience and common sense are not details that burglars are going to be able to offer up to officers.

[00:10:29] Speaker 04:
I'm sorry to inject here, and if you want to continue with this, that's fine, but we've only got five minutes, and there's your sentencing issue.

[00:10:41] Speaker 04:
that we need to get to as well.

[00:10:43] Speaker 04:
But if you want to finish up with this and then we can get to that.

[00:10:46] Speaker 02:
Sure, Your Honor.

[00:10:46] Speaker 02:
I just wanted to focus on the Fourth Amendment issue because it provides my client with more relief, but I'm of course happy to... Well, I understand, but I need to focus on the sentencing issue.

[00:10:55] Speaker 04:
So I'm looking for some help from you on that.

[00:10:58] Speaker 02:
Of course, Your Honor.

[00:10:59] Speaker 02:
So just to wrap that up, I think those cases where there's suspicion of burglary are helpful because this is not the same.

[00:11:07] Speaker 02:
And then the cases where there's no suspicion of burglary, Chavez and Evans,

[00:11:11] Speaker 02:
are much more similar to our case, where the objective facts don't show there was a burglary.

[00:11:16] Speaker 02:
Now to move on to the ACA issue, Your Honor.

[00:11:21] Speaker 04:
Well, I'll throw the question out.

[00:11:24] Speaker 04:
If I'm understanding your argument correctly, it turns a lot on the Borden Supreme Court case, where Justice Kagan's interpretation of the ACCA

[00:11:40] Speaker 04:
was that the language about the use of force against another would be limited to purposeful and knowing conduct.

[00:11:52] Speaker 04:
And then on the other hand, as I understand your argument, you're saying, well, the Oklahoma robbery statute doesn't specify mens rea, and as a result,

[00:12:05] Speaker 04:
under the case law, it's general intent crime, and you can commit the general intent crime with recklessness, so we don't have a categorical match with the ACCA.

[00:12:21] Speaker 04:
So far, so good?

[00:12:22] Speaker 04:
Have I got your argument?

[00:12:23] Speaker 02:
So far, so good, Your Honor.

[00:12:24] Speaker 04:
All right.

[00:12:25] Speaker 04:
So here's my question, just looking at Borden a little bit more.

[00:12:31] Speaker 04:
So the court says that force in the ACCA requires purposeful or knowing conduct.

[00:12:40] Speaker 04:
But there's reference to force in the Oklahoma robbery statute as well.

[00:12:46] Speaker 04:
It says that it has to be accomplished by means of force or fear, and not only that, but against the will.

[00:12:57] Speaker 04:
And it seems to me that Borden kind of cuts both ways for you.

[00:13:03] Speaker 04:
The interpretive principle of Borden is force requires purpose or knowledge, and yet we have force in the Oklahoma robbery statute.

[00:13:18] Speaker 04:
How do we deal with that?

[00:13:21] Speaker 02:
Sure, so this court after Borden, and the cases are cited in the opening brief, has interpreted Borden as saying that cases where the force could be applied recklessly do not satisfy Borden.

[00:13:35] Speaker 02:
So we know that anything less than that doesn't cut it.

[00:13:38] Speaker 02:
And so looking at Oklahoma case law, it's not just that the statute is silent, and it's not just that it's a general intent crime.

[00:13:47] Speaker 02:
If you look at how Oklahoma treats general intent crimes, that tells us that the use of force doesn't have to be employed with a mental state of purpose and knowledge.

[00:13:59] Speaker 02:
And we know that from Quinn and from Fairchild.

[00:14:01] Speaker 04:
Well, but I wonder if Justice Kagan would agree with that.

[00:14:05] Speaker 04:
I mean, she lays out this notion that if it's force against another, it can't be reckless.

[00:14:13] Speaker 04:
And we have force in this statute.

[00:14:16] Speaker 02:
So I think that can't be the right interpretation because this court, I believe in an assault case which requires force against another, this court said that it didn't meet the Borden standard.

[00:14:30] Speaker 02:
I believe that was the Devereux case.

[00:14:34] Speaker 02:
So that interpretation of Borden is foreclosed, I suppose, by this court's case law saying that just because there's a use of force doesn't mean that it's purposeful.

[00:14:45] Speaker 02:
recklessly employed.

[00:14:47] Speaker 02:
And in Oklahoma, if there's no mens rea stated, which that's the case here, it doesn't require purpose or knowing force.

[00:14:58] Speaker 04:
OK.

[00:14:58] Speaker 04:
I understand your argument.

[00:15:00] Speaker 04:
But that was bothering me a little bit.

[00:15:03] Speaker 04:
So I understand what you're saying.

[00:15:05] Speaker 04:
One other follow-up, which is this.

[00:15:10] Speaker 04:
I'm just not seeing how you can have reckless robbery.

[00:15:14] Speaker 04:
And so it may be that in theory, under general intent, it could be committed recklessly.

[00:15:23] Speaker 04:
But don't you have a burden to show there's a realistic probability that Oklahoma would prosecute a reckless robbery?

[00:15:32] Speaker 04:
And I'm not seeing any examples of where that's ever happened.

[00:15:36] Speaker 02:
So I think we don't have a burden to show that it's a realistic possibility if there's case law interpreting

[00:15:44] Speaker 02:
the offense that way.

[00:15:46] Speaker 02:
And we have Traxler and Landell about robbery, and then we know how Oklahoma treats generals.

[00:15:52] Speaker 04:
Is the burden the other way?

[00:15:53] Speaker 04:
Is it on the government then?

[00:15:55] Speaker 02:
I think there's been some suggestion in this court's case law that if it's unclear, then we don't know that it's a categorical match.

[00:16:04] Speaker 02:
And then for that reason, it's not a categorical match.

[00:16:09] Speaker 04:
It has to be clear.

[00:16:10] Speaker 02:
Right.

[00:16:11] Speaker 02:
Excuse me.

[00:16:13] Speaker 03:
Can I get one question in before you run out of time?

[00:16:16] Speaker 04:
Please do, Judge Kelly.

[00:16:19] Speaker 03:
Thank you.

[00:16:21] Speaker 03:
This is the first time on appeal that you're arguing this particular manner, is it not?

[00:16:26] Speaker 02:
That's correct, Your Honor.

[00:16:29] Speaker 03:
So we're here on plain error?

[00:16:31] Speaker 02:
That's right, Your Honor.

[00:16:33] Speaker 03:
All right, I just wanted to make sure we agreed on that.

[00:16:36] Speaker 03:
Thank you.

[00:16:37] Speaker 02:
And I see my time has expired, but if I could respond just to your reckless robbery, how is it possible question?

[00:16:43] Speaker 04:
Okay, briefly.

[00:16:44] Speaker 02:
Just briefly, I think the Anderson case, of course, that's a California case, but it shows exactly how this is possible.

[00:16:51] Speaker 02:
And it shows that if you have a statute and California's statute is the language is nearly identical to Oklahoma's, it shows that it could possibly be prosecuted because it was.

[00:17:01] Speaker 02:
If that had happened in Oklahoma, then

[00:17:03] Speaker 02:
Then we'd be in the same situation the anderson yes Thank you counsel I please the court

[00:17:26] Speaker 05:
Daniel Gridley for the United States.

[00:17:29] Speaker 05:
The district court did not err in denying Mr. Campbell's motion to suppress, nor in using Mr. Campbell's numerous armed robbery of convictions as violent offenses under the Armed Career Criminal Act.

[00:17:44] Speaker 05:
When we look at the specific facts, as Officer Mullinex responded to the scene July 1st to 21 shortly before midnight, he had information, as the court has pointed out,

[00:17:57] Speaker 05:
that the resident of that home was calling in, actually observing what was going on real time of her surveillance system.

[00:18:05] Speaker 05:
It was relayed that there was someone on the back porch that didn't belong there, and also it was relayed that there was a girlfriend that was home inside the home.

[00:18:16] Speaker 05:
Importantly, there was no mention of a male that was supposed to be there, only that there was a male on the back porch that didn't belong.

[00:18:26] Speaker 05:
Obviously, as the courts mentioned, the officer arrived very quickly within a minute of the conclusion of that call.

[00:18:36] Speaker 05:
And if we start off with the uncontroverted information at this point in time when officer arrived, that there is reasonable suspicion.

[00:18:48] Speaker 05:
That is uncontroverted here.

[00:18:50] Speaker 05:
I'd submit there are two things that happen very quickly, shortly thereafter.

[00:18:56] Speaker 05:
that escalate the situation, that increase the level of suspicion as to Mr. Campbell.

[00:19:03] Speaker 05:
One, the officer almost immediately upon arriving on scene noticed what he observed and believed to be the butt of a gun magazine protruding from Mr. Campbell's waistband.

[00:19:17] Speaker 05:
Secondly, when he first arrives there is a direct line of sight

[00:19:23] Speaker 05:
as he is approaching from his squad car.

[00:19:27] Speaker 05:
And Officer Mullinex gives Mr. Campbell a clear direction to come here.

[00:19:33] Speaker 05:
And again, there's a direct line of sight, but Mr. Campbell doesn't do that.

[00:19:37] Speaker 05:
Instead, Mr. Campbell diverts behind his car that's backed in, near the side back of the residence, the end of the driveway.

[00:19:48] Speaker 05:
And as things progressed, it went on, and it went upward

[00:19:53] Speaker 05:
From there, the level of suspicion because of the evasive action that Mr. Campbell took.

[00:20:00] Speaker 05:
Mr. Campbell went around the back side of the car, comes over to the driver's side.

[00:20:05] Speaker 05:
He again refuses to come to where the officer is directing him.

[00:20:11] Speaker 05:
And in fact, he wedges himself between the door frame and the door itself, putting again something between him and that officer.

[00:20:20] Speaker 05:
And he, as the courts pointed out, he persists in bringing his hands down by his waist, which is assessed by the court in the Briggs case as being something significant to the issue of reasonable suspicion to an officer responding to a situation such as this, where he believes that this suspect is armed with a firearm.

[00:20:50] Speaker 05:
As he is doing this also, Mr. Campbell is tensing up at four minutes into that video.

[00:20:57] Speaker 05:
He's tensing up as the officer's trying to manipulate his wallet while still holding him.

[00:21:03] Speaker 05:
He's balancing efforts to control the situation, but not to, in a way, deescalate the situation.

[00:21:13] Speaker 05:
Also, you'll notice at three minutes and 14 seconds into that video, Mr. Campbell with his left

[00:21:20] Speaker 05:
arm subtly pulls his shirt down to cover what you eventually find out to be the firearm that's taken off of his left hip.

[00:21:31] Speaker 05:
All of these factors clearly show that there is reasonable suspicion and Mr. Campbell wants to pigeonhole this simply into reasonable suspicion of a burglary and that's one offense that could have been

[00:21:45] Speaker 05:
in play here, but I'd submit that there are a number of other offenses potentially.

[00:21:51] Speaker 05:
Simple trespassing.

[00:21:53] Speaker 05:
There could have been, as the situation developed and based on the Young case, certainly a legal possession of a firearm was another offense.

[00:22:03] Speaker 05:
peeping tongs, stalking.

[00:22:06] Speaker 05:
The fact that Mr. Campbell had some familiarity with this home doesn't take him out of the level of suspicion here.

[00:22:14] Speaker 05:
There's a variety of circumstances and a variety of offenses at play that could be involved besides a simple theft.

[00:22:23] Speaker 05:
So given the totality of the circumstances here, the government would submit that

[00:22:31] Speaker 05:
that the officer, Officer Mulnex, was certainly in a position to reasonably be able to secure the situation while he looked into Mr. Campbell's claims, what essentially is going to require him calling and talking to the reporting party.

[00:22:53] Speaker 05:
And in order to do that, he's going to have to turn his back on Mr. Campbell and go back to his squad car

[00:23:00] Speaker 05:
where his phone is.

[00:23:02] Speaker 05:
Under these circumstances, with a man that he believes is armed, not following directions, continuing to reach down to his waistband, where the officer has seen what he believes to be a portion of a firearm, it's just not reasonable for

[00:23:22] Speaker 05:
the law to expect that he would turn his back on an individual in this situation, go back to his car, especially with another suspect at large in the area.

[00:23:33] Speaker 05:
Again, he's the only officer on scene at this point in time.

[00:23:37] Speaker 05:
So the government would submit he was clearly within his right

[00:23:42] Speaker 05:
and under Williams, officers are authorized to take such steps that are reasonably necessary to protect their safety and to maintain the status quo during the course of their stop in order for him to call and talk to the reporting party.

[00:23:59] Speaker 05:
If there are no other questions on that issue, I'd like to move on to the Unclear Criminal Act issue.

[00:24:07] Speaker 01:
Can you address first the

[00:24:13] Speaker 01:
Appellant's argument that in Devereaux, we said that if force is applied recklessly, that you can apply force recklessly basically in seeming contravention of Borden.

[00:24:35] Speaker 05:
Your honor, I believe that's not consistent with a couple of things that Mr. Campbell just can't get around.

[00:24:42] Speaker 05:
One, the language of the opal mustaches.

[00:24:44] Speaker 01:
Well, I would like you to, if you can, to address the facts of Devereaux.

[00:24:50] Speaker 01:
That was the argument that counsel made.

[00:24:56] Speaker 05:
Are you referring to the California?

[00:25:00] Speaker 01:
If you don't know, that's fine.

[00:25:02] Speaker 05:
I'm sorry, it's not coming up.

[00:25:06] Speaker 05:
But I would submit that under the parameters of the Armed Career Criminal Act, Your Honor, there's a couple things that Mr. Campbell can't get around.

[00:25:14] Speaker 05:
One is the language of the Oklahoma Statute.

[00:25:18] Speaker 05:
The language of the Oklahoma Statute, three statutes in particular, they come into play Section 801, Section 791, and specifically Section 792.

[00:25:31] Speaker 05:
which sets out to constitute robbery, the force or fear must be employed either to obtain or retain possession of the property.

[00:25:43] Speaker 05:
So the word employed there, I'd submit, is key.

[00:25:48] Speaker 05:
It is important.

[00:25:51] Speaker 01:
Well, I guess I'm going to try to get back to this a different way.

[00:25:54] Speaker 01:
I understand what the Oklahoma statutes say.

[00:25:57] Speaker 01:
I understand what the Oklahoma courts have said in

[00:26:01] Speaker 01:
Traxler and other cases about being a general intent crime.

[00:26:06] Speaker 01:
But the U.S.

[00:26:07] Speaker 01:
Supreme Court has seemingly said that use of force requires purposeful or knowing conduct.

[00:26:16] Speaker 01:
So we can't ignore what the U.S.

[00:26:20] Speaker 01:
Supreme Court said in Borden.

[00:26:21] Speaker 05:
Certainly.

[00:26:22] Speaker 01:
And this statute requires force.

[00:26:26] Speaker 01:
So how... I guess I'm back to...

[00:26:30] Speaker 01:
Judge Matheson's question to Appellants' Council, how can we even pay attention to what Oklahoma said in 1952 when we have the Borden case, which would seemingly say that this Oklahoma robbery statute requires specific intent?

[00:26:49] Speaker 05:
It doesn't require specific intent in the sense of many, a handful of Oklahoma statutes such as shooting with intent to kill requires a specific intent of a special outcome.

[00:27:03] Speaker 05:
But it does require, as is required by Borden, a purposeful knowing, in other words, something above and beyond

[00:27:13] Speaker 05:
reckless or negligent.

[00:27:15] Speaker 05:
And that's what's set out in the Oklahoma statutes.

[00:27:18] Speaker 05:
And it's also made crystal clear, I would submit, in the Parnell case.

[00:27:23] Speaker 04:
Well, how can it be crystal if the words aren't used?

[00:27:27] Speaker 04:
I mean, you're saying, well, I'm going to interpret the word employed.

[00:27:34] Speaker 04:
But if you just go back to the definition of armed

[00:27:39] Speaker 04:
robbery, for example, the 791 provision, is there a mens rea set forth in the definition of robbery?

[00:27:54] Speaker 04:
Just looking at the text.

[00:27:56] Speaker 05:
Of the statute, Your Honor?

[00:27:57] Speaker 05:
Correct.

[00:27:58] Speaker 05:
The text of the statute may be crystal clear in the sense that it's not directly set out specifically in that sense, but I would submit that when you look at the wording of section 792 specifically, the word that is used is force must be employed.

[00:28:19] Speaker 04:
Well, and in 791, it also says accomplished by means of force.

[00:28:23] Speaker 04:
So I assume that's where you would pick up on that.

[00:28:26] Speaker 04:
But even so,

[00:28:28] Speaker 04:
Haven't the Oklahoma courts, and in particular, Traxler, said, well, wait a minute.

[00:28:35] Speaker 04:
This is a general intent crime.

[00:28:38] Speaker 04:
Yes.

[00:28:39] Speaker 04:
And don't general intent crimes in Oklahoma include crimes committed recklessly?

[00:28:47] Speaker 05:
Well, I would argue that, as specifically interpreted by Traxler and even more specifically by Parnell, which holds, it can thus be seen that some act, word, gesture, or deed calculated to produce fear, calculated to produce fear or injury to property or person, must be established by competent evidence.

[00:29:13] Speaker 05:
that when you read the Traxler case, the Parnell case, together with the statutory language of significance there, the section 792, which requires employment of force, that language taken all together

[00:29:36] Speaker 05:
implies something more than reckless or negligence.

[00:29:41] Speaker 05:
It requires knowing, even purposeful action, in bringing about the force of fear.

[00:29:49] Speaker 05:
And thus, it meets the board and requirements.

[00:29:54] Speaker 04:
Calculated is the word used by Parnell.

[00:29:58] Speaker 05:
Yes.

[00:29:59] Speaker 05:
If I can... That's all right.

[00:30:01] Speaker 04:
We can find it.

[00:30:03] Speaker 05:
Yes.

[00:30:05] Speaker 05:
At 374 in Parnell, the language is calculated to produce fear or injury, which I would submit clearly implies something more than reckless negligence, things of that nature.

[00:30:23] Speaker 04:
Have the Oklahoma courts ever limited Traxler to the wrongful taking element of robbery?

[00:30:33] Speaker 05:
No, I'm aware of no cases, Your Honor, that limit it to the taking element.

[00:30:40] Speaker 04:
And I know that... Although it might be helpful if they did for you, wouldn't it?

[00:30:44] Speaker 04:
Well, I would argue that it applies to... In fact, I thought that you were arguing just the opposite in your brief, but all right.

[00:30:54] Speaker 05:
Well, in a way, the Traxler case dealt with the

[00:30:59] Speaker 05:
the lack of a specific intent to steal, in other words, to permanently deprive.

[00:31:06] Speaker 01:
So I thought that was your argument too, that it would be limited to that lack of specific intent.

[00:31:13] Speaker 05:
It's limited in a way to the fact that there's no further intent, i.e.

[00:31:21] Speaker 05:
an intent to steal.

[00:31:22] Speaker 05:
It does have language that, if I can

[00:31:28] Speaker 05:
point out to the court, no intent is necessary except the intent of doing the act announced by the statute.

[00:31:37] Speaker 05:
And Mr. Campbell argues that that act announced by the statute is limited just to taking.

[00:31:43] Speaker 05:
There's no reason this court should say it's limited to taking and that it doesn't also logically apply to the use of force.

[00:31:56] Speaker 04:
that's set out in the statute in Parnell.

[00:31:58] Speaker 04:
I guess I'm still stuck on the general intent crime argument that Mr. Campbell's making, that if this is a general intent crime, you got recklessness, you can't fit a CCA.

[00:32:15] Speaker 04:
And let me have a subpart to that question, if you don't mind.

[00:32:19] Speaker 04:
Do you have to show that it clearly does?

[00:32:25] Speaker 05:
To answer your second question first, if I may, I see I'm over time.

[00:32:29] Speaker 05:
Sure, sure.

[00:32:30] Speaker 05:
I'd submit no, that under the plein air doctrine, and we're not contesting prong three and four, we're arguing that the courts should fine for us in prong one, and we would argue under this court's

[00:32:44] Speaker 05:
The Fagatelli case, I'm not sure if I'm pronouncing that properly, Fagatelli case that it's incumbent upon Mr. Campbell to demonstrate that the statute can be violated with recklessness.

[00:33:02] Speaker 04:
I don't know if I've answered your questions.

[00:33:04] Speaker 04:
I do see that my time is... Well, I think we've hit the over limit time, but let's see.

[00:33:12] Speaker 04:
Judge Kelly, do you have anything further?

[00:33:15] Speaker 03:
Thank you, counsel.

[00:33:18] Speaker 04:
Thank you, your honor.

[00:33:20] Speaker 04:
So I think time has expired.

[00:33:22] Speaker 04:
I appreciate the arguments.