[00:00:00] Speaker 02:
That is 24-7048.

[00:00:04] Speaker 00:
Thank you, Your Honor.

[00:00:11] Speaker 00:
May it please the Court, Council?

[00:00:13] Speaker 00:
My name is Shira Keval.

[00:00:14] Speaker 00:
I'm an Assistant Federal Public Defender and I represent Patrick McHenry.

[00:00:18] Speaker 00:
Mr. McHenry is not guilty of a Section 924C carrying offense because he did not carry a firearm during a crime of violence.

[00:00:28] Speaker 00:
The question in this case is about when the statutory robbery offenses of federal carjacking and federal enclave robbery begin, and in particular, whether those crimes had begun in this case at the time that Mr. McHenry got out of his parked car at the Motel 6, leaving his shotgun behind.

[00:00:46] Speaker 00:
They had not.

[00:00:49] Speaker 00:
At that point in time, Mr. McHenry had not yet committed any of the acts that constituted the essential conduct elements of either offense.

[00:00:59] Speaker 00:
The essential conduct elements in this case are currently set out in the statute.

[00:01:02] Speaker 00:
They require the taking of property from the person or presence of the victim by the use of force and violence or intimidation.

[00:01:11] Speaker 00:
It is not possible to begin to commit those essential conduct elements before you have ever encountered the victim, before you've arrived at the location where the robbery would take place.

[00:01:22] Speaker 00:
before you have ever seen any of the property that you will end up... Perhaps you could tell us when you think it started.

[00:01:29] Speaker 00:
I think the earliest point in time, I recognize that we're in a very deferential standard here, the earliest point in time is either when they knock on the door or when the door is opened and they step into the motel room.

[00:01:40] Speaker 01:
Okay, so why not getting out of the car and just walking to the door?

[00:01:45] Speaker 00:
Because that is not the use of force and violence or intimidation.

[00:01:49] Speaker 01:
It's not a taking don't you have to get where Don't you have to get where you're going?

[00:01:55] Speaker 00:
I guess is my question Yes, your honor you do there's definitely predicate acts that come before so walking to the door is the predicate act yes, your honor, it's it's I think Obviously a quibble with whether it constitutes a substantial step in this case, but let's even accepting that he had the intent of

[00:02:14] Speaker 00:
and that at the time to commit these particular offenses, it's no more than a substantial step.

[00:02:20] Speaker 00:
And we know that from clearly established law from the Supreme Court, we know when a crime occurs.

[00:02:26] Speaker 00:
The Constitution says that you can only have a trial where a crime occurred.

[00:02:30] Speaker 00:
The US Supreme Court has said, well, where depends on when, which I think is pretty obvious.

[00:02:35] Speaker 00:
They say it occurs when.

[00:02:37] Speaker 00:
the acts of the defendant that constituted the violation, where the offense was begun, continued or completed, but it doesn't include anterior criminal conduct.

[00:02:48] Speaker 02:
If this were an attempt case, then you would say the substantial step is where it started.

[00:02:55] Speaker 02:
But because this is a completed crime, you think that then we look when the first element occurs.

[00:03:03] Speaker 00:
Yeah, if it were an attempt case that was defined according to the common law, then a substantial step would be an element.

[00:03:09] Speaker 00:
So it's the same test that would be applied in either circumstance.

[00:03:13] Speaker 00:
But we know from Taylor that an attempt to commit a crime of violence, and in particular attempt to commit a robbery, is not itself a crime of violence.

[00:03:25] Speaker 00:
So what the government is really trying to do here is get around that case and say, well, if you carry a gun during an attempt to commit a crime of violence but never complete the offense, it's not a 924C.

[00:03:36] Speaker 00:
But if you complete the offense, well, it's a 924C.

[00:03:39] Speaker 00:
And that simply doesn't work.

[00:03:41] Speaker 00:
Their theory here that a crime somehow begins, you know, federal statutory crimes begin with a common law attempt.

[00:03:51] Speaker 00:
It has no support in the law and is contrary to law.

[00:03:55] Speaker 00:
There is no federal common law crime of attempt.

[00:03:59] Speaker 00:
There is no statutory attempt crime.

[00:04:04] Speaker 00:
Specific crimes do occasionally in the statute define an attempt crime, but there is no attempted robbery that is a crime of violence in this case.

[00:04:15] Speaker 00:
And I think that the cases that make it clearest that this theory doesn't work

[00:04:21] Speaker 04:
Counsel, can I ask you, you're focused on the front end of the robbery, but what about the back end?

[00:04:26] Speaker 04:
We do have cases that say flight from the scene of a robbery is encompassed within the offense of robbery.

[00:04:34] Speaker 04:
Why couldn't the jury here have looked at these facts and thought, well, he carried the firearm when they drove off in the Honda and the Subaru and concluded that the flight was part of the robbery as well?

[00:04:49] Speaker 00:
The government has abandoned this theory.

[00:04:51] Speaker 00:
So I don't believe that the court needs to reach it.

[00:04:53] Speaker 04:
But this is a sufficiency challenge.

[00:04:55] Speaker 04:
So we're sort of looking at the evidence as a whole and trying to figure out, could a rational jury have found beyond a reasonable doubt the elements of this offense?

[00:05:04] Speaker 04:
So why couldn't a rational jury have thought, well, even if the robbery didn't begin until they encountered CJ, seems to me, though, as they're carrying off all the loot, even if they weren't specifically instructed, we know that we have cases that say that.

[00:05:19] Speaker 04:
Why couldn't we then say, affirm on the grounds that the flight is where the carrying occurred?

[00:05:25] Speaker 00:
Yeah, and Your Honor, this particular robbery offense, or excuse me, these two robbery offenses, we know do not have an asportation element.

[00:05:33] Speaker 00:
So in Carter, the Supreme Court said, if the statute says take no asportation element, take and carry away, well, now it invokes the common law and has an asportation element.

[00:05:44] Speaker 00:
So the statutory language for both of these offenses is just take.

[00:05:48] Speaker 00:
In this circuit, the only case where this court has said that a robbery includes the escape phase was when the court believed that it was dealing with a statute that contained an aspiration element.

[00:06:00] Speaker 00:
And even though that's not part of the discussion in that particular case, it relies on other circuits and essentially every circuit to have said that there's an aspect, excuse me, that it includes an escape phase.

[00:06:12] Speaker 00:
It has been talking about a statute that they believed at the time had an aspiration element.

[00:06:17] Speaker 02:
Well, but for carjacking, they're still carjacking so long as they have the car, aren't they?

[00:06:24] Speaker 00:
No, Your Honor.

[00:06:26] Speaker 00:
And I think the clearest case to understand when the crime of carjacking ends is USV Long Pumpkin.

[00:06:33] Speaker 00:
I know that that's an eighth circuit case, but they take real care there to say this crime only includes a taking.

[00:06:39] Speaker 00:
When is it still part of the taking and when is the taking over?

[00:06:43] Speaker 00:
And they had two 924Cs in that case.

[00:06:45] Speaker 00:
They upheld one of them.

[00:06:46] Speaker 00:
because the taking wasn't complete yet.

[00:06:48] Speaker 00:
They were still trying to obtain possession and control over the vehicle.

[00:06:53] Speaker 00:
The second time that a gun was used, excuse me, was discharged in that case, they'd already taken complete control of the vehicle.

[00:07:00] Speaker 00:
They're still in the vehicle.

[00:07:01] Speaker 00:
They still have the victim in that case in the vehicle, but they had fully completed the carjacking.

[00:07:08] Speaker 00:
I think, Your Honor, that there are some other carjacking offenses set out in the same statute that talk about carjacking

[00:07:15] Speaker 00:
that leads to death.

[00:07:17] Speaker 00:
This court has been very clear that that is not looking at does it happen during the carjacking itself, but that it's looking for proximate cause.

[00:07:26] Speaker 00:
And that is not a crime that we're dealing with in this case.

[00:07:31] Speaker 00:
In this case, the taking was complete, and that was the last element of the crime that was charged here.

[00:07:37] Speaker 04:
What is your best authority for your theory that the robbery doesn't begin until they encounter the victim?

[00:07:42] Speaker 04:
You stated it with a lot of certainty.

[00:07:44] Speaker 04:
I guess I didn't glean from your briefs any cases that say explicitly what you just said in the context of a robbery offense.

[00:07:51] Speaker 00:
Yes, Your Honor.

[00:07:51] Speaker 00:
And this is kind of a unique theory that the government is going forward with here.

[00:07:58] Speaker 00:
I couldn't find any cases where they tried to do this.

[00:08:01] Speaker 00:
And they didn't even go into this case intending to do it.

[00:08:03] Speaker 00:
They had in their mind that Mr. McHenry had a handgun on his person while he was in the motel room.

[00:08:10] Speaker 00:
Turns out that wasn't true.

[00:08:11] Speaker 00:
The evidence didn't come out that way.

[00:08:14] Speaker 00:
So instead of dropping the charge, they proceed on this theory.

[00:08:18] Speaker 00:
So your honor is right, there's not gonna be a 924C case that talks about this because this is just something that they're trying to do for the first time.

[00:08:27] Speaker 00:
But the reason that I'm confident in that, there's two reasons.

[00:08:31] Speaker 00:
One, we have a really clear test that has to be one of the acts constituting the elements of the offense.

[00:08:36] Speaker 00:
And the conduct elements here require a taking by use of force.

[00:08:40] Speaker 00:
And you simply cannot start to take property

[00:08:43] Speaker 00:
You cannot start to use force or violence or intimidation against a person until you've encountered that person.

[00:08:48] Speaker 02:
Maybe you could do it over the- Is that United States versus Rodriguez that you're saying is the case that says it has to be one of the elements for a completed crime?

[00:09:02] Speaker 00:
Yes, Your Honor.

[00:09:03] Speaker 02:
And that's a venue case?

[00:09:06] Speaker 00:
Yes, Your Honor.

[00:09:07] Speaker 02:
And so your theory is that in order to determine venue,

[00:09:12] Speaker 02:
the Supreme Court had to determine where the crime occurs, and that where was answered as when the acts that constitute elements of the offense.

[00:09:27] Speaker 02:
Am I understanding your argument?

[00:09:29] Speaker 00:
Yes, absolutely, Your Honor.

[00:09:31] Speaker 00:
And then if you want to look at how that's been applied, again, you can look at the Eighth Circuit case, US v. Parker.

[00:09:36] Speaker 00:
And that's a case that deals with the same federal enclave robbery statute that we have here, although a military base.

[00:09:43] Speaker 00:
And they talk about the location of the planning.

[00:09:45] Speaker 00:
They just drop a foot in them.

[00:09:46] Speaker 00:
They're like, that is not relevant to determining where the offense happened.

[00:09:50] Speaker 00:
And that's because it's not part of the offense, right?

[00:09:52] Speaker 00:
That would be certainly a substantial step if we were talking about an attempt.

[00:09:57] Speaker 00:
But it's not, in the language of the Constitution, where the crime shall have been committed.

[00:10:04] Speaker 00:
It's not for the purpose of the federal enclave robbery, right?

[00:10:08] Speaker 00:
For the federal enclave, there needs to be part of the crime committed on the federal enclave.

[00:10:13] Speaker 00:
And we know in that case that the planning is not part of the crime.

[00:10:17] Speaker 00:
You can kind of imagine this case.

[00:10:21] Speaker 00:
Imagine that, you know, as we are, most of this area of Oklahoma is Indian country.

[00:10:27] Speaker 00:
But in this case, the motel itself and the particular parking lot where

[00:10:32] Speaker 00:
the victim's car was, it's not Indian country, right?

[00:10:35] Speaker 00:
Mr. McHenry's car is kind of around the corner out of the way.

[00:10:37] Speaker 00:
Let's say that is Indian country.

[00:10:40] Speaker 00:
Same facts.

[00:10:41] Speaker 00:
Mr. McHenry drove with the shotgun, with whatever plan he may or may not have had.

[00:10:46] Speaker 00:
He parks the car and gets out.

[00:10:48] Speaker 00:
Now he goes to the motel.

[00:10:49] Speaker 00:
He starts to use force and violence and intimidation.

[00:10:51] Speaker 00:
He takes property.

[00:10:52] Speaker 00:
He takes the car.

[00:10:55] Speaker 00:
In that situation, you would not have

[00:10:57] Speaker 00:
federal enclave robbery because it would have been no robbery that occurred in any part in Indian country.

[00:11:03] Speaker 04:
Counsel, can I ask you sort of a different question?

[00:11:06] Speaker 04:
For 924C predicates, we have crimes of violence and drug trafficking crimes.

[00:11:11] Speaker 04:
We have a body of case law on drug trafficking crimes, Muscarello and some of the cases that follow that do talk about carrying a firearm that's stashed with the drugs in the car.

[00:11:21] Speaker 04:
Do you see a difference between crimes of violence predicates and drug trafficking offense predicates in the context of carrying?

[00:11:28] Speaker 00:
only to the extent that they have different elements.

[00:11:31] Speaker 00:
And so what you see in the drug trafficking cases is that generally those are being upheld where, first of all, there is a general attempt statute for drug trafficking crimes.

[00:11:42] Speaker 00:
But you also generally see those cases where the charge is possession with intent to distribute.

[00:11:47] Speaker 00:
And so that crime occurs where you have the possession and the intent at the same time.

[00:11:51] Speaker 00:
And if you're carrying your drugs, and you're carrying your gun together, and you're on your way to wherever the transaction will occur, well, of course, that's carrying during the commission of that particular drug traffic offense.

[00:12:01] Speaker 00:
If you did have a case where they merely charged distribution, the actual sale, but you had left the gun in the car when you went to the place where you were doing your sale, then no.

[00:12:15] Speaker 00:
I think under my rule, you wouldn't have the 924C.

[00:12:17] Speaker 00:
I just don't think the government would charge it that way.

[00:12:24] Speaker 00:
If there's no further questions I'd like to reserve the remainder of my time.

[00:12:28] Speaker 00:
Thank you.

[00:12:47] Speaker 02:
Big height differential.

[00:12:57] Speaker 03:
May it please the court.

[00:12:58] Speaker 03:
My name is Luke Rizzo.

[00:12:59] Speaker 03:
I'm an AUSA from the Eastern District of Oklahoma.

[00:13:02] Speaker 03:
The only issue here is whether sufficient evidence was presented for the jury to convict defendant on count five carrying a firearm during and in relation to a crime of violence.

[00:13:13] Speaker 03:
A challenge to the sufficiency of the evidence usually requires a court to determine whether any rational trial or fact could have found the defendant guilty beyond a reasonable doubt.

[00:13:23] Speaker 03:
All the evidence is viewed in the light most favorable to the government's case, to the jury's verdict.

[00:13:28] Speaker 03:
There is no dispute.

[00:13:30] Speaker 02:
In looking at the evidence, you concede that there was no evidence that there was a gun on the defendant's person at the time that the actual robbery occurred in the hotel room.

[00:13:46] Speaker 03:
Correct, Your Honor.

[00:13:47] Speaker 02:
Okay, so we are all in agreement that the only firearm we're talking about stayed in the car.

[00:13:54] Speaker 03:
We are in agreement on that, Your Honor.

[00:13:57] Speaker 03:
And to be clear, the jury, based on the verdict and the verdict form itself, they have a special question and they say he carried it as opposed to used it.

[00:14:07] Speaker 01:
Right.

[00:14:07] Speaker 03:
And so I think that's not in dispute.

[00:14:10] Speaker 03:
To that point, the government showed

[00:14:12] Speaker 03:
You know, during the trial, that defendant carried the firearm by proving that after deciding to commit the robbery, defendant forced the female victim into the trunk of his car at gunpoint.

[00:14:24] Speaker 03:
He took the shotgun, he put it in his car, he drove to the Motel 6.

[00:14:29] Speaker 03:
The only plausible reason on the record to do that is he has the intent to commit the robbery.

[00:14:35] Speaker 03:
It's a substantial step traveling to the crime scene.

[00:14:38] Speaker 03:
He also has his accomplices following him in tandem.

[00:14:42] Speaker 03:
He gets out of the Motel 6, opens the trunk, threatens to kill the female victim unless she gives him the correct room number so he could take another step to the robbery.

[00:14:53] Speaker 03:
He goes up to the room.

[00:14:54] Speaker 03:
He has another female accomplice knock on the door so he can't be seen through the peephole.

[00:14:58] Speaker 03:
And then he barges in.

[00:15:00] Speaker 03:
So he's possessing the firearm.

[00:15:02] Speaker 03:
He's carrying it.

[00:15:04] Speaker 02:
Well, he's not carrying it then.

[00:15:06] Speaker 03:
Well, again, I guess to the crux of the matter is, when did the robbery and carjacking actually begin?

[00:15:15] Speaker 02:
And do you have any case law?

[00:15:16] Speaker 02:
I mean, the case law here, there's nothing directly on point that I have seen.

[00:15:22] Speaker 02:
And I mean, you cite a case.

[00:15:26] Speaker 02:
I think it's Monroe.

[00:15:28] Speaker 02:
Correct, Your Honor.

[00:15:29] Speaker 02:
But that case is an attempt case.

[00:15:31] Speaker 02:
So it doesn't really help me

[00:15:34] Speaker 02:
to decide whether the defendant's argument here is correct because obviously it's an attempted sexual assault case and so you are looking at when there's a substantial step towards completion of the crime.

[00:15:53] Speaker 02:
He wasn't convicted of attempt here, correct?

[00:15:58] Speaker 03:
That's correct, Your Honor.

[00:16:00] Speaker 02:
What's your best case for why I should look at substantial step in a completed crime?

[00:16:09] Speaker 03:
Well, Your Honor, the point of Monroe and the citation to Monroe is really to draw a parallel.

[00:16:14] Speaker 03:
So in Monroe, yes, he's convicted of, I believe, a 2422 enticing and coercing a minor.

[00:16:21] Speaker 03:
He's convicted of attempting that.

[00:16:23] Speaker 03:
Mind you, he could never possibly have completed that crime in that particular case because the minor is an undercover agent.

[00:16:30] Speaker 03:
The reason why the government cites it is, again, to draw what it believes is a

[00:16:35] Speaker 03:
reasonable parallel.

[00:16:36] Speaker 03:
You know, that individual, he's enticing a minor online.

[00:16:41] Speaker 03:
He has the intent.

[00:16:42] Speaker 03:
He takes a substantial step to go meet up with the alleged minor, well, the undercover agent.

[00:16:48] Speaker 03:
He brings a gun with him.

[00:16:49] Speaker 03:
That's the 924C.

[00:16:51] Speaker 03:
Now, granted, of course, that's an attempt, substantial step.

[00:16:54] Speaker 03:
The reason, again,

[00:16:57] Speaker 03:
There is not an exact case on point.

[00:17:00] Speaker 03:
What the government is proposing is merely that when you attempt something, you started it.

[00:17:05] Speaker 03:
An attempted crime is the beginning of the crime.

[00:17:08] Speaker 04:
Now, the government, an example, you know that... Yeah, but didn't the government make that same argument and lose in the Taylor decision before the Supreme Court in 2022?

[00:17:18] Speaker 04:
In that case, they were looking at whether or not Hobbs Act robbery attempt was a crime of violence.

[00:17:22] Speaker 04:
I get it.

[00:17:23] Speaker 04:
The question was different, but the argument that was made was the same.

[00:17:26] Speaker 04:
And the Supreme Court was pretty clear about delineating the difference between the attempt and the completed acts of Hobbs Act robbery.

[00:17:33] Speaker 04:
So can't we look at not just the absence of case law that really supports the parallel you're trying to draw, but glean from Taylor that maybe there's direct authority from the Supreme Court that says that we shouldn't draw that parallel?

[00:17:47] Speaker 03:
Obviously, Taylor has to do with, as the government recalls, mostly whether the crime was a violent one or not, whether an attempted robbery or carjacking could be a violent crime.

[00:18:00] Speaker 03:
Now, obviously, here in Nick Henry, he completed his crime.

[00:18:04] Speaker 03:
Part of what the government is proposing is sort of, you know, there's a lot of talk from the appellant about, well, you know, you got to complete an element, you got to complete elemental conduct, you got to complete credit, or you can only complete

[00:18:17] Speaker 03:
predicate acts, quite frankly, there's a lot there.

[00:18:21] Speaker 03:
And there's also a lot of citations to whether jurisdiction, whether there's venue.

[00:18:25] Speaker 03:
And let's sort of add these questions to a case that does not need that complication.

[00:18:30] Speaker 03:
And the government's pointing.

[00:18:32] Speaker 02:
But the analogy that the appellant is drawing from the United States versus Rodriguez is that the Supreme Court was faced with the question of when does it start and when does it end?

[00:18:49] Speaker 02:
And that's the issue here, isn't it?

[00:18:50] Speaker 02:
If you have to carry it during the commission of the crime, then we're looking at when does it start and when does it end.

[00:18:58] Speaker 03:
Of course, Your Honor.

[00:18:59] Speaker 03:
And one way the government likes to look at it is thinking about federal second degree murder.

[00:19:05] Speaker 03:
So if an individual, he shoots someone five times, the person lingers in the hospital for seven days, he didn't commit any element of the murder yet.

[00:19:14] Speaker 03:
He didn't cause a death.

[00:19:16] Speaker 03:
All he has is that malice of forethought, the intent.

[00:19:18] Speaker 03:
So when an individual dies seven days later, the appellant's point is when he dies a week after the shooting, that's when the murder began.

[00:19:28] Speaker 03:
And that's when it ends, too.

[00:19:30] Speaker 03:
And to the government, that point, that just doesn't seem logical.

[00:19:33] Speaker 02:
I mean, you know... I think that doesn't work because part of the elements of the crime are his intent to murder, right?

[00:19:44] Speaker 02:
So you have the intent to murder when he fired the gun.

[00:19:49] Speaker 02:
And then the person dies when the person dies.

[00:19:51] Speaker 02:
So there it is, a required element of the crime of second-degree murder.

[00:19:57] Speaker 02:
And it just so happens that the completion of the crime with the final element doesn't happen until later.

[00:20:04] Speaker 02:
But here, there's not a single element of the crimes of violence here that is ongoing when the gun is just sitting in the car.

[00:20:17] Speaker 02:
Is there?

[00:20:19] Speaker 03:
Forgive me, Your Honor.

[00:20:20] Speaker 03:
You're asking if...

[00:20:22] Speaker 03:
He committed an element of the crimes of violence here.

[00:20:27] Speaker 02:
If you focus on the elements of the carjacking and the, I think it's enclave robbery, the two crimes of violence here, was he armed during the commission of any act that constituted an element?

[00:20:50] Speaker 02:
of either of those crimes is what I'm asking.

[00:20:54] Speaker 03:
And the government understands the question.

[00:20:55] Speaker 03:
So it's basically the way the government views the timeline of the case, the robbery.

[00:21:00] Speaker 02:
Well, can you answer my question first and then tell me why it's a bad question?

[00:21:05] Speaker 03:
Not my intent, Your Honor.

[00:21:08] Speaker 03:
So the gun is in the car.

[00:21:09] Speaker 03:
And he goes up to commit the robbery.

[00:21:12] Speaker 03:
He's obviously not literally in possession of it.

[00:21:14] Speaker 03:
The government would argue he's constructively in possession, part of what he's doing.

[00:21:18] Speaker 03:
You know, he's forcefully taking, he's committing that element of the robbery, but it's still in his possession constructively.

[00:21:24] Speaker 03:
He still controls it.

[00:21:25] Speaker 03:
You know, the government focuses on the testimony at trial.

[00:21:31] Speaker 03:
of that male victim in the hotel room who says he threatened to kill me, he threatened to blow my head off, blow my genitalia off.

[00:21:38] Speaker 03:
He means with his shotgun.

[00:21:39] Speaker 03:
You know, that's probably, you know, the government is suggesting that's likely how the jury took it.

[00:21:45] Speaker 03:
That's why they convicted him.

[00:21:46] Speaker 02:
But the victim thought he was armed then with a gun.

[00:21:50] Speaker 03:
Correct, Your Honor.

[00:21:51] Speaker 03:
And clearly that came from the actions of the defendant and the statements he was giving.

[00:21:57] Speaker 03:
And he, you know, part of

[00:21:59] Speaker 03:
You know, there's obviously multiple parts of the 924C.

[00:22:02] Speaker 03:
Part of it is, you know, whether during and in relation to, and again, the real issue here, whether he's using it during or in relation to the crime, the government doesn't think there's any issue there.

[00:22:15] Speaker 04:
Well, what if McHenry and his accomplice pull up to the Motel 6, park the Honda, get out, walk up to the hotel room, and right before they knock on the door, they have a moment of clarity and conscience?

[00:22:26] Speaker 04:
And McHenry says, you know what, maybe we should just leave this room alone.

[00:22:30] Speaker 04:
And they turn around and walk back to the Honda and drive off.

[00:22:33] Speaker 04:
What crime did they commit?

[00:22:35] Speaker 03:
Well, at that juncture, I suppose it wouldn't be an attempted robbery because perhaps because he retreated or he gave up the plan.

[00:22:44] Speaker 03:
But then again, I mean, I'm not actually quite sure.

[00:22:48] Speaker 04:
Attempted robbery, Hobbs Act robbery, of course, is not a crime of violence predicate.

[00:22:52] Speaker 04:
Sure.

[00:22:52] Speaker 04:
So isn't that sort of delta a problem for your facts here?

[00:22:56] Speaker 04:
And just so easily saying, well, he possessed the car or had still had dominion or control over the shotgun because it was in the car.

[00:23:03] Speaker 04:
Well, possession's a separate 924C offense than the carrying, which is what the jury found here.

[00:23:10] Speaker 04:
So I have a hard time saying, well, just because he still exercised dominion or control of the shotgun because it's in the Honda, that's not what the jury found here.

[00:23:19] Speaker 04:
They found carrying.

[00:23:21] Speaker 04:
I just am having a hard time linking up how these pieces fit together.

[00:23:28] Speaker 03:
Well, the government thought of that concept, Your Honor.

[00:23:31] Speaker 03:
And it's sort of if the defendant, he's at the hotel room door.

[00:23:34] Speaker 03:
Let's say cops jump out and prevent him from completing the crime.

[00:23:38] Speaker 03:
So all he could ever be charged with is the attempted robbery.

[00:23:42] Speaker 03:
Naturally, the only reason he wouldn't be charged with a 924C is because the attempt isn't a crime of violence.

[00:23:50] Speaker 03:
You know, like that's the reason why, you know, that would be out the window and the government understands that.

[00:23:56] Speaker 03:
But again, like, and the reason why the government draws is considering attempt and presenting that as part of its argument.

[00:24:06] Speaker 03:
It's just for this, when did the crime begin?

[00:24:09] Speaker 03:
You know, I mean, obviously the whole kid, you know, it's not an attempt.

[00:24:13] Speaker 03:
He completed the crime and based on what the jury found, he's carrying the firearm.

[00:24:19] Speaker 03:
You know, they convicted him of this.

[00:24:20] Speaker 03:
And it's also important to note from the government's mindset or the government's position is simply that.

[00:24:27] Speaker 03:
Even with all this discussion and the legal nuance of when did this particular crime begin, at the core of this, it's really about sufficiency of the evidence, the jury's verdict, the question of whether any rational trier of fact could have found the defendant guilty.

[00:24:43] Speaker 03:
And again, the government is only suggesting here that the jury was rational.

[00:24:49] Speaker 03:
The jury didn't say.

[00:24:50] Speaker 02:
Well, it's embedded with a legal issue, isn't it?

[00:24:55] Speaker 02:
I mean the jury doesn't get to decide what it means to carry during a crime of violence.

[00:25:04] Speaker 02:
I mean we have to put some parameters on that legally.

[00:25:08] Speaker 02:
And then if there was no evidence presented or if there's a concession that there was no evidence that there was carrying during the crime, then it would be insufficient.

[00:25:23] Speaker 02:
no rational jury could find under those circumstances, right?

[00:25:28] Speaker 03:
The government agrees with that, Your Honor, of course.

[00:25:30] Speaker 02:
Yeah.

[00:25:31] Speaker 02:
So the question for us, I mean, it's a difficult little issue, and there doesn't seem to be a lot of law directly on point.

[00:25:40] Speaker 02:
But I see a big difference if he had carried the shotgun up to the hotel room and propped it against the wall.

[00:25:48] Speaker 02:
and then opened the door and made threats because it's obviously there and ready to be used than whether, you know, he had it for, he left it in the car and somebody drove the car around the block a few times.

[00:26:04] Speaker 02:
I mean, it seems to me it matters whether it was accessible to him during the commission of the crime of violence.

[00:26:13] Speaker 03:
Of course, Your Honor, and part of the reason the government brings the jury up is they're hearing the statements he was giving, the threats he was making.

[00:26:22] Speaker 03:
They know the gun's in the trunk.

[00:26:24] Speaker 03:
They know he already pointed the gun at the female when a tiger up-beater sexually assaulted her, got this information out of her.

[00:26:31] Speaker 03:
They know he already did that with the gun.

[00:26:33] Speaker 03:
They hear the same threats to the male victim.

[00:26:35] Speaker 03:
They know he has the gun in the car.

[00:26:37] Speaker 03:
I mean,

[00:26:38] Speaker 03:
That's why the government points it out.

[00:26:40] Speaker 03:
I mean, the defendant's actions are making it so that he's carrying the firearm in relation to the crime.

[00:26:51] Speaker 03:
He has it available.

[00:26:53] Speaker 04:
What's your best case that says that, I think in their brief he's framed it as, it gave him confidence to commit the robbery because if the guy doesn't do what he says, he's got a shotgun outside.

[00:27:03] Speaker 04:
What's your best case for that?

[00:27:06] Speaker 03:
Courage, so courage to, lending courage to the possessor of the firearm, that would be United States.

[00:27:14] Speaker 03:
And that's a 10th Circuit case from 2000.

[00:27:17] Speaker 03:
It's 204 F3D 1282.

[00:27:23] Speaker 04:
Is that a drug trafficking predicate or a crime of violence predicate?

[00:27:30] Speaker 04:
You know what, Your Honor, I'm not aware of that right now.

[00:27:32] Speaker 04:
I'll look at the case.

[00:27:36] Speaker 04:
about the difference, or do you see the same difference between drug trafficking predicates and crime of violence predicates about sort of when they begin because of that body of law that says keeping the guns with the drugs in the car is sufficient?

[00:27:48] Speaker 03:
Well, I'm going to run out of time, but if I may answer your question.

[00:27:54] Speaker 03:
OK.

[00:27:56] Speaker 03:
Listen, there's a lot of variables there, Your Honor, from the government's perspective.

[00:28:01] Speaker 03:
Now, when you generally have a gun,

[00:28:03] Speaker 03:
with the drugs in the car, it's going to be a 924C.

[00:28:08] Speaker 03:
Whether or not he's charged as intent to distribute or conspiracy, that does matter.

[00:28:14] Speaker 03:
And that's part of one of the appellant's cases, I believe, Richardson.

[00:28:17] Speaker 03:
But I mean, yeah, it's a possession with intent to distribute.

[00:28:21] Speaker 03:
And the individual has the drugs and the gun in the car.

[00:28:23] Speaker 03:
That's going to be a 924C, at least in the Eastern District of Oklahoma generally.

[00:28:29] Speaker 01:
And Judge Eyde has a question.

[00:28:32] Speaker 01:
Of course, Your Honor.

[00:28:32] Speaker 01:
I'm wondering, are you abandoning all reliance on the flight argument?

[00:28:38] Speaker 03:
No, Your Honor.

[00:28:38] Speaker 01:
You have not spoken of it at all?

[00:28:41] Speaker 03:
No, Your Honor.

[00:28:42] Speaker 03:
That hasn't been abandoned.

[00:28:43] Speaker 01:
OK, why have you not spoken to it?

[00:28:46] Speaker 01:
Do you think it's not a good argument?

[00:28:49] Speaker 03:
No, Your Honor.

[00:28:49] Speaker 03:
Well, the government believes von Roeder.

[00:28:52] Speaker 03:
That's the case, I believe, from 1970.

[00:28:53] Speaker 03:
The circuit, the robbery, the escape from the robbery

[00:28:58] Speaker 03:
is part of the robbery crime.

[00:29:00] Speaker 03:
I mean, the government thinks that's sort of well known.

[00:29:04] Speaker 03:
And until he gets to a point of safety, a relative safety, the robbery isn't over.

[00:29:10] Speaker 03:
And so him and his accomplice, to be sure, the defendant is driving the victim's car, so the gun is in the car of

[00:29:19] Speaker 03:
In the Honda, so it gets a little complicated there, but his accomplice is driving the car with the firearm in it.

[00:29:25] Speaker 03:
And as they drive away, yes, the government has never abandoned the notion or the theory that the robbery is still continuing while they escape.

[00:29:35] Speaker 01:
And wouldn't that be sufficient here to argue for you to prevail in the case, or no?

[00:29:41] Speaker 03:
Well, if the government believes it would be, it's only suggesting part of the defense of this

[00:29:47] Speaker 03:
verdict is that the government is saying the crime it started when he put the woman in the trunk with the intent and it ends when he is relatively free and They're on the road, you know to his next crime Okay, thank you your honor And can you give her an extra minute because Maybe you can start with slides

[00:30:17] Speaker 00:
Yes, Your Honor, that was just what I was planning on doing.

[00:30:21] Speaker 00:
You know, the government says it's not abandoned.

[00:30:22] Speaker 00:
They've certainly never developed it.

[00:30:26] Speaker 00:
I struggle a little bit, you know, if any of Your Honors have specific questions that I can address.

[00:30:31] Speaker 00:
The point of relative safety, unquestionably they were at a point of relative safety if that were to be the right test, which it's not.

[00:30:39] Speaker 01:
What is the right test?

[00:30:41] Speaker 00:
Your Honor is saying if escape is part of a non-asportation robbery offense.

[00:30:46] Speaker 01:
Right, and I understand you don't agree that it is.

[00:30:49] Speaker 00:
Yes, Your Honor, and this court in Von Roeder didn't talk about it, but it happened to be in that case that there was hot pursuit that was ongoing.

[00:31:02] Speaker 00:
They were at the airport, I think the police were coming up the tarmac, and almost every other circuit has talked about

[00:31:10] Speaker 00:
hot pursuit or immediate removal, but generally speaking, hot pursuit.

[00:31:15] Speaker 00:
There is no hot pursuit in this case.

[00:31:17] Speaker 00:
There's no chance for hot pursuit in this case.

[00:31:20] Speaker 01:
So hot pursuit is required for the crime to be continuing?

[00:31:26] Speaker 00:
If there is an escape phase, I do believe that hot pursuit is required for there to be an escape phase.

[00:31:33] Speaker 00:
How does it end?

[00:31:34] Speaker 00:
I think it's not just so long as you possess the property.

[00:31:38] Speaker 00:
That can't be right.

[00:31:39] Speaker 00:
That could be years and years and years.

[00:31:42] Speaker 00:
Even just as you're driving away, right?

[00:31:45] Speaker 00:
In this case, the testimony at trial is that the victim was back in his motel room, believed that he had no clothes, there was no motel room phone, his cell phone had been taken.

[00:31:56] Speaker 00:
There's no one else seen on video or testified about.

[00:32:00] Speaker 00:
There's no one trying to stop them.

[00:32:03] Speaker 00:
from leaving.

[00:32:04] Speaker 00:
There's no one who follows them.

[00:32:06] Speaker 00:
The other thing that the government is kind of, I think, throwing in here is a little bit of aiding and abetting liability, which is an argument that they also have abandoned.

[00:32:14] Speaker 00:
They did request the instruction below.

[00:32:15] Speaker 00:
They never argued it to the jury.

[00:32:18] Speaker 00:
They never pursued it on appeal.

[00:32:20] Speaker 00:
And I think rightly so because there's

[00:32:22] Speaker 00:
The code of it in this case wasn't a 924C principle.

[00:32:26] Speaker 00:
She testified, and there was no contrary testimony, that she didn't know that the gun had come to the motel until she got into the car to leave after all of the items had already been taken.

[00:32:37] Speaker 00:
The robbery, with the potential exception of an escape phase, is already complete.

[00:32:45] Speaker 00:
For her to be the principal, she needs to not just know about the gun.

[00:32:49] Speaker 00:
That would be enough if she were the accessory.

[00:32:53] Speaker 00:
She needs to do it in relation to the crime, which this court has repeatedly defined to require an intent for the weapon to be available for use during the predicate offense.

[00:33:04] Speaker 00:
That's USD Nicholson, Shuler, Miller, Matthews, a whole series of cases.

[00:33:09] Speaker 00:
And there's just not evidence that she could be a principal in this case.

[00:33:13] Speaker 00:
So again, they've abandoned escape.

[00:33:15] Speaker 00:
They've abandoned aiding and abetting.

[00:33:17] Speaker 00:
They haven't developed it, and the theory really just isn't there in the facts of this particular case.

[00:33:23] Speaker 04:
Counsel on flight, do you know whether it was argued to the jury about escape or flight or whether that came up at all during the trial?

[00:33:31] Speaker 00:
The government's argument to the jury went

[00:33:35] Speaker 00:
way to the end of this.

[00:33:37] Speaker 00:
They essentially said, you know, once they'd gotten to wherever it is they're holding the kidnapping victim, I don't remember exactly how far away, but it's a bit of a schlap.

[00:33:44] Speaker 00:
And, you know, and in that point, anytime that Mr. McHenry carried that firearm, that was sufficient.

[00:33:52] Speaker 00:
So yes, they don't talk about escape phase.

[00:33:55] Speaker 00:
It's not defined for the jury.

[00:33:57] Speaker 00:
I think, you know, the

[00:34:00] Speaker 00:
The jury in this section in this case wrote the time element out of the case.

[00:34:06] Speaker 00:
So I don't think there's a deference to the jury issue in this case.

[00:34:11] Speaker 00:
Thank you.

[00:34:11] Speaker 00:
Thank you, Your Honor.

[00:34:12] Speaker 02:
We will take this under advisement.

[00:34:16] Speaker 02:
We appreciate your argument today.