[00:00:00] Speaker 00: argument this morning, 23-2178, United States versus Zamora. [00:00:08] Speaker 02: Thank you. [00:00:08] Speaker 02: Good morning, your honors. [00:00:09] Speaker 02: May it please the court? [00:00:10] Speaker 02: My name is Ellen Phillips. [00:00:11] Speaker 02: I'm here on behalf of the appellant, Xavier Zamora. [00:00:15] Speaker 02: I would like to reserve two minutes for rebuttal. [00:00:17] Speaker 02: The Juvenile Delinquency Act limits federal jurisdiction over juvenile offenders, recognizing the longstanding policy that state courts are better equipped for handling the treatment and rehabilitation of juveniles. [00:00:30] Speaker 02: Thus, only under unique circumstances can those cases be tried in federal court. [00:00:35] Speaker 02: Under the JDA, it requires that the government certify both that there is an underlying federal crime of violence and that there is a substantial federal interest sufficient to warrant the exercise of federal jurisdiction. [00:00:48] Speaker 02: The certification here, however, didn't do that. [00:00:51] Speaker 02: Instead, it collapsed that inquiry and certified that there was a federal crime of violence, and so therefore, there was a substantial federal interest. [00:00:58] Speaker 02: But that's not enough under the statute. [00:01:01] Speaker 02: And aside from that facial deficiency, there is actually no substantial federal interest here. [00:01:06] Speaker 02: This court can review that question rather than leaving it to the unfettered discretion of the government, consistent with the purpose of the JDA to limit a prosecutor's discretion in juvenile cases. [00:01:16] Speaker 00: And most of the cases out there are kind of against the position that you're advocating. [00:01:23] Speaker 00: And one of the underlying themes is that [00:01:27] Speaker 00: how a federal court would evaluate the substantiality certification and what elements would factor into that and the like. [00:01:42] Speaker 00: This case involved the murder of a postal carrier. [00:01:53] Speaker 00: That seems like it might at least [00:01:57] Speaker 00: to some prosecutors be substantial, maybe not to others. [00:02:00] Speaker 00: But let's just say it's a priority of the district of New Mexico to prosecute murders of federal workers, just a categorical rule. [00:02:15] Speaker 00: And that's just the priority of the US attorney or the attorney general of the United States. [00:02:21] Speaker 00: Wouldn't we defer even to a blanket determination of substantiality? [00:02:27] Speaker 00: How do we decide? [00:02:29] Speaker 00: What's our judicial review look like? [00:02:33] Speaker 02: Sure. [00:02:34] Speaker 02: So beginning with your first point about the lack of standard in the statute, that shouldn't preclude judicial review here. [00:02:43] Speaker 02: It's true that the statute does not set forth specific things that the court should consider when evaluating whether there's a substantial federal interest. [00:02:51] Speaker 02: But courts are fully equipped to make that determination in our [00:02:56] Speaker 02: used to making those nebulous standard determinations, such as whether something is reasonable. [00:03:02] Speaker 02: And further, the legislative history from the Senate report in 1984 does provide some standards. [00:03:09] Speaker 02: It goes to the evaluation of whether the facts and circumstances of the case give rise to special federal concerns. [00:03:18] Speaker 02: As for your point that the Attorney General could make a blanket determination that [00:03:24] Speaker 02: there are special federal concerns for the murder of a postal worker. [00:03:29] Speaker 02: I'll note first that the certification here didn't actually say that. [00:03:36] Speaker 02: But even if there had been some sort of blanket certification, I think you would still have to look to the facts and circumstances of the specific case. [00:03:46] Speaker 02: Because I think we could imagine a situation where [00:03:50] Speaker 02: even though it may meet the elements of the crime, it's not necessarily a substantial federal interest. [00:03:56] Speaker 02: We could consider, for instance, if there was a domestic dispute. [00:04:00] Speaker 02: A woman's husband just so happens to be a postal worker, and she decides that she's had enough and just decides to kill him. [00:04:08] Speaker 02: That wasn't motivated by any federal concerns whatsoever. [00:04:11] Speaker 02: And so I don't think in that situation there would be a substantial federal interest. [00:04:15] Speaker 00: But you might have a US attorney that says, yeah, we need to [00:04:19] Speaker 00: crack down on these types of crimes. [00:04:24] Speaker 00: I think part of the statute says if the district's unwilling or unable to prosecute these types of crimes, that's a reason also. [00:04:35] Speaker 00: But why couldn't it just be a pure policy preference that certain crimes are going to get federal attention? [00:04:44] Speaker 00: And why wouldn't we defer to that? [00:04:47] Speaker 02: because I don't think that's consistent with the text and the purpose of the statute. [00:04:52] Speaker 02: The Congress certainly could have enumerated specific crimes that would always qualify for prosecution in federal court under the JDA, but it didn't do that. [00:05:03] Speaker 02: Instead, it recognized that while some crimes may be proper in federal court, not all federal crimes and violence will be, and so there has to be something extra on top of that. [00:05:20] Speaker 03: If we were to get to the merits, would we, I mean, you've got an admission to the plea agreement that he murdered the Postal Service letter carrier while engaged in and on account of the performance of his official duties. [00:05:41] Speaker 03: I mean, that seems to be significant in determining whether we're dealing with a crime of federal interest. [00:05:50] Speaker 02: Yes, there is that admission, Your Honor. [00:05:52] Speaker 02: And we don't dispute that admission. [00:05:55] Speaker 02: But the point here is that even if we admit the facts for purposes of the underlying elements of the offense, the question of subject matter jurisdiction and whether there's a substantial federal interest is a separate inquiry. [00:06:11] Speaker 02: And this court can look to the facts to determine whether there actually is a substantial federal interest. [00:06:19] Speaker 03: including that fact? [00:06:24] Speaker 02: Including the fact of the admission? [00:06:26] Speaker 02: Yes. [00:06:26] Speaker 02: Yes. [00:06:29] Speaker 02: But further, Your Honor, this court doesn't have to make that determination. [00:06:32] Speaker 02: It may be more appropriate to remand to the district court to make a factual determination as to whether there is actually a substantial federal interest here. [00:06:42] Speaker 02: And if I may also discuss the facial argument, and that's that the text of the certification here did not comply with the requirements of the JDA. [00:06:53] Speaker 02: So the JDA requires two distinct certifications, and that's that there's a federal crime of violence and a substantial federal interest. [00:07:01] Speaker 02: This latter requirement would be entirely meaningless if the first finding alone sufficed. [00:07:06] Speaker 02: And that would contravene the basic interpretive principle that all words and provisions be given meaning. [00:07:12] Speaker 02: Of course, all federal crimes invoke a federal interest, but the statute specifically requires that there be a certification of a substantial federal interest. [00:07:21] Speaker 02: It should be separate and distinct from whether there's an underlying federal crime of violence. [00:07:28] Speaker 00: Some of the cases have looked at the other parts of 5032 that do provide for judicial review. [00:07:36] Speaker 00: conclude that the omission here suggests that Congress did not envision that there would be judicial review of this particular provision. [00:07:47] Speaker 00: Explain your response to that. [00:07:49] Speaker 02: Yes, Your Honor. [00:07:50] Speaker 02: My response is that that would go against the Supreme Court's instruction in LaMagna that there is a strong presumption that Congress intends judicial review, even in the absence of an express provision delegating judicial review. [00:08:03] Speaker 03: Well, that's interpreting the Administrative Procedures Act, right? [00:08:07] Speaker 03: Actually, the LaMagna case is the Westfall Act, which is where the attorney general sort of- Both of those have a specific provision for judicial review, right? [00:08:18] Speaker 02: The Westfall Act is not, Your Honor. [00:08:21] Speaker 02: And that was something that the court noted in Lemmonio, that there is a strong presumption that Congress intends judicial review of executive action unless there is something in the statute saying otherwise. [00:08:31] Speaker 02: And of course, here, there's nothing in the statute precluding judicial review. [00:08:42] Speaker 02: Returning back to the facial point briefly, the certification here [00:08:47] Speaker 02: just didn't meet the standards of the JDA instead of saying that there is a federal crime of violence and adding an additional certification that there is a substantial federal interest. [00:08:58] Speaker 02: It instead said that there was a federal crime of violence, so therefore there is a substantial federal interest. [00:09:05] Speaker 02: It thus plainly specified what the basis for its substantial federal interest conclusion was, and that is that there is the mere fact of a crime of violence that's been charged. [00:09:17] Speaker 00: If we agree with your position and remand it back to the district court, what instructions should we give the district court on how to determine substantiality? [00:09:32] Speaker 02: Well, if you agree with me on the first point, then this case should be dismissed for lack of subject matter jurisdiction. [00:09:39] Speaker 02: It would not be subject to a substantiality review because the certification would be just technically deficient. [00:09:47] Speaker 02: disagreed with me on that point and agreed with me on the second point that it should be subject to a substantiality review. [00:09:53] Speaker 02: The district court should be instructed to consider the facts and circumstances of the case to consider whether it gives rise to special federal concerns. [00:10:03] Speaker 00: And what constitutes special? [00:10:07] Speaker 00: Or give some examples of cases that, I mean, you gave me, I think, a case of one that would flunk substantiality. [00:10:15] Speaker 00: What would be the standard of review? [00:10:19] Speaker 02: I think, for instance, in a case involving a murder of a federal officer, you would look to whether the defendant was motivated by federal concerns, whether it was, for instance, an assassination of a federal officer, whether it was intending to interfere with federal interests. [00:10:36] Speaker 02: And here, there's just simply no evidence of that. [00:10:41] Speaker 02: And one other point I'd like to respond to. [00:10:44] Speaker 02: Government argues that the substantiality certification is not subject to review because it falls within the realm of general prosecutorial discretion. [00:10:53] Speaker 02: But that argument overlooks the explicit purpose of the JDA, which is to limit federal adjudication of juvenile offenses. [00:11:01] Speaker 02: So even if prosecutorial discretion is generally unreviewable, Congress can certainly alter that presumption, which it did here by requiring a certification. [00:11:11] Speaker 02: Congress could have extended the same discretion as exists in adult cases, but it didn't do so, and instead included the certification requirement. [00:11:20] Speaker 02: And that requirement would be entirely toothless if there was no sort of judicial review whatsoever. [00:11:24] Speaker 02: Moreover, Your Honor, even the Supreme Court has held that prosecutorial discretion is not completely unfettered. [00:11:36] Speaker 02: For instance, an indictment [00:11:39] Speaker 02: is at least reviewed by a grand jury, and an information is always reviewed for probable cause. [00:11:45] Speaker 02: And so here, Congress added an additional level of review for juvenile offenses, which is the certification requirement. [00:11:56] Speaker 02: If there are no further questions? [00:11:58] Speaker 00: I think you may reserve your rebuttal. [00:12:00] Speaker 02: I'll reserve the rest for rebuttal. [00:12:01] Speaker 02: Thank you. [00:12:06] Speaker 01: Good morning, Your Honors. [00:12:07] Speaker 01: Counsel, may I please the court [00:12:09] Speaker 01: My name is Fred Federici. [00:12:11] Speaker 01: I'm an Assistant United States Attorney from the District of New Mexico. [00:12:14] Speaker 01: It is my privilege and honor this morning to address you today on behalf of the United States. [00:12:20] Speaker 01: Your Honor, as we see at least four fatal flaws in the defendant's arguments that I'd like to very briefly summarize for the court at the outset. [00:12:28] Speaker 01: First, the defendant is wrong on the facts because he misreads the plain language of the U.S. [00:12:36] Speaker 01: Attorney's certification. [00:12:38] Speaker 01: By ignoring paragraph one of the certification, the defendant argues that the US attorney certified that every federal crime of violence amounts to a substantial federal interest. [00:12:50] Speaker 01: But the US attorney plainly certified only that the crimes charged in paragraph one of the certification, which included the murder of a federal employee, amounted to a substantial federal interest. [00:13:03] Speaker 01: In fact, it couldn't be any clearer [00:13:06] Speaker 01: from the fourth paragraph of the certification that the US attorney was only certifying the crimes with which the defendant was charged because that paragraph only certifies that there's a substantial federal interest in, quote, each enumerated charge, close quote, which is a reference to the three paragraphs above it. [00:13:29] Speaker 01: So the four corners of this certification say nothing about any other crime [00:13:35] Speaker 01: not mentioned within the certification. [00:13:38] Speaker 01: It's an entirely unfair reading of the plain language of the certification, the defendant's position today. [00:13:45] Speaker 03: Well, subsection two of the first paragraph is pretty broad. [00:13:52] Speaker 03: You've got the subsection one, which is murder of an employee of the United States. [00:13:57] Speaker 03: And using and carrying a firearm during and retaliation to a crime of violence [00:14:04] Speaker 03: Possessing a firearm and furtherance. [00:14:06] Speaker 01: I mean that's those are pretty broad aren't they well There's specific crimes with which the defendant was charged. [00:14:12] Speaker 01: Yeah, so what I guess all I'm saying your honor is that Whatever those crimes are that's all that the US attorney was referring to in paragraph for the certification and the position that the defense is taking is that he was referring to every [00:14:28] Speaker 01: federal crime of violence in the US Code. [00:14:30] Speaker 01: That's plainly not the case. [00:14:32] Speaker 03: And even accepting that, what I'm asking you is, if you look at the crimes in subsection two of the first paragraph, those are pretty broad to say there's a federal interest in all of those. [00:14:49] Speaker 01: Oh, I'm sorry. [00:14:50] Speaker 01: I misunderstood the court's question originally. [00:14:55] Speaker 01: Certainly, the US attorney certified that each of the enumerated charges constituted a substantial federal interest. [00:15:02] Speaker 01: We would argue that that starts with the murder of a federal employee, which would be the lead charge. [00:15:08] Speaker 01: 924C obviously means that the defendant used a crime during the commission of that crime of violence. [00:15:15] Speaker 01: And the 922X crime just says that a juvenile illegally possessed that gun. [00:15:20] Speaker 01: But to your honor's point, yes, that's true. [00:15:24] Speaker 01: certify all three of those charges. [00:15:27] Speaker 03: Therefore, there is a substantial federal interest in each enumerated charge. [00:15:32] Speaker 01: Yes. [00:15:33] Speaker 03: To warrant the exercise of federal jurisdiction. [00:15:36] Speaker 03: And while it may be, you know, you could argue that it's somewhat obvious if you murder an employee of the United States, that there's a federal interest there, although I understand the defense would say that's even limited. [00:15:49] Speaker 03: The others seem quite broad. [00:15:53] Speaker 01: There are certainly bigger, less serious offenses, but they still fall within the scope of the offenses that Section 5032 allows to be certified as a substantial federal interest. [00:16:11] Speaker 01: The second fatal flaw for the defendant, Your Honor, is that he's wrong on the law. [00:16:21] Speaker 01: because he misreads the plain language of Section 5032. [00:16:26] Speaker 01: And on page 14 of his opening brief, the defendant argues that the US attorney failed to certify a substantial federal interest beyond the crimes with which the defendant was charged. [00:16:38] Speaker 01: We agree with that. [00:16:39] Speaker 01: That's true. [00:16:41] Speaker 01: And I think that this header shows that at least in that portion of the defendant's brief, even he understands that that's all that the US attorney was certifying [00:16:52] Speaker 01: in this certification. [00:16:54] Speaker 01: And why is that? [00:16:56] Speaker 01: Because the plain language of Section 5032 explicitly directs the U.S. [00:17:02] Speaker 01: attorney to base his certification upon the case or offense charged. [00:17:07] Speaker 01: Plainly and simply, that's what happens here, and that's all the U.S. [00:17:11] Speaker 01: attorney is directed to do under Section 5032. [00:17:15] Speaker 01: And the language I'm talking about, Your Honors, is the portion of the statute that says, [00:17:20] Speaker 01: that the attorney general was directed to certify, quote, there is a substantial federal interest in the case or the offense to warrant the exercise of federal jurisdiction. [00:17:31] Speaker 01: Nothing more. [00:17:36] Speaker 00: Well, the question is whether this court can review the quality of the certification. [00:17:45] Speaker 00: And most of the other cases have said, [00:17:49] Speaker 00: It's a rubber stamp. [00:17:50] Speaker 00: We're going to defer to the attorney general on that. [00:17:53] Speaker 00: But at least in the Fourth Circuit, the court said, we can do this. [00:17:58] Speaker 00: We can review the substantial federal interest. [00:18:01] Speaker 00: And the statute contains those words. [00:18:04] Speaker 00: And to a large extent, your position is that we ignore those words, or at least they're not eligible for judicial review. [00:18:17] Speaker 00: I mean, it's subject matter jurisdiction. [00:18:19] Speaker 00: Don't we have to look at whether the attorney general has, in fact, a substantial federal interest? [00:18:28] Speaker 00: And don't we have to review substantialities as part of assuring ourselves that the federal courts have jurisdiction here? [00:18:36] Speaker 01: Judge Timkovich, I appreciate your question, because it leads right to my next point. [00:18:40] Speaker 01: That's number three? [00:18:41] Speaker 01: Number three, the defendant is again wrong on the law. [00:18:44] Speaker 01: And here's why. [00:18:46] Speaker 01: First and foremost, the courts already alluded to it. [00:18:48] Speaker 01: But the first, the second, the third, the fifth, the sixth, the seventh, the eighth, the ninth, the 11th, and the DC courts of appeals have all resoundingly rejected the interpretation that the court brings, that the defendant's urging upon this court today. [00:19:04] Speaker 01: And I would say that the defendant's appeal raises a basic statutory construction issue that Your Honor has already alluded to. [00:19:14] Speaker 01: But he has not one word to say in his briefs about the canon of statutory construction that the majority of courts have found to apply and to be controlling. [00:19:25] Speaker 01: And that is the construction that where Congress includes particular language in one section of the statute, such as providing for a hearing and six enumerated separate factors in the transfer proceeding under Section 5032, but omits it in another section of the same act. [00:19:43] Speaker 01: such as at the certification stage of Section 5032, that's generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion. [00:19:53] Speaker 01: And there's nothing to say about that there. [00:19:56] Speaker 01: And I will point out that while the Court's correct that the Fourth Circuit stands alone amongst the other circuits, the defendant in the Fourth Circuit case wasn't even able to convince all the judges on that panel that he was correct. [00:20:12] Speaker 01: Chief Judge Wilkerson concurred in the result, but effectively dissented to the defendant's argument. [00:20:23] Speaker 01: And the first thing that he cited was the construction I've just discussed. [00:20:29] Speaker 01: And he basically eviscerated the defendant's argument and laid out the roadmap that every court of appeals that has looked at it since has followed. [00:20:39] Speaker 00: The other reason that the majority in that case were applying a presumption of judicial review, like on the Lamanya case that she mentioned. [00:20:53] Speaker 00: There's also a presumption that state crimes will be committed in state court, a federalism type of evaluation. [00:21:03] Speaker 00: So there's some competing cannons, it seems, at stake here. [00:21:08] Speaker 01: Well, I would grab the Lamagna case as the one that the panel judges grabbed onto in the Fourth Circuit. [00:21:14] Speaker 01: That case is readily distinguishable. [00:21:16] Speaker 01: I think Judge McHugh was alluding to it. [00:21:20] Speaker 01: It's the Westfall Act. [00:21:21] Speaker 01: What the Supreme Court tells us in that case is that they had two reasons for distinguishing, for finding the way they did in the Lamagna. [00:21:30] Speaker 01: The first was, and that was whether a US attorney's scope of employment certification [00:21:37] Speaker 01: under the FTCA could be subject to judicial review. [00:21:40] Speaker 01: The Supreme Court said yes in that instance because they said, one, the attorney general herself was urging the Supreme Court to find that judicial review applied because she recognized that the U.S. [00:21:53] Speaker 01: attorney in that situation could be conflicted in terms of making that certification. [00:21:58] Speaker 01: It allows by [00:22:01] Speaker 01: By making the certification, the US attorneys would be able to avoid any litigation from the agent who's not scoped. [00:22:09] Speaker 01: And the second reason that they turned on that's, I think, most important here is that the Supreme Court in La Bagna said that that involved a situation where the attorney general's certification was conclusive or dispositive of the entire case. [00:22:27] Speaker 01: And that's where all the other courts of appeals [00:22:30] Speaker 01: examined Labogna has said, this is a different situation. [00:22:35] Speaker 01: The certification under 5032 is just the beginning of the case, not the end. [00:22:40] Speaker 01: And I would also point out why the defendant is wrong on the law. [00:22:48] Speaker 01: The losing interpretation that the defendant wants the courts to adopt reads language into the statute that doesn't exist. [00:22:55] Speaker 01: It contains no specific criteria, as Your Honor has talked about this morning. [00:22:59] Speaker 01: for judges to apply. [00:23:01] Speaker 01: And it fails to respect prosecutorial judgments that lie at the core of the executive rather than the judicial branch of government. [00:23:09] Speaker 01: And those are the other pieces of the roadmap that Judge Wilkerson sets out in his what I'm going to call dissent, even though it was a concurring opinion in the Fourth Circuit. [00:23:20] Speaker 00: If we disagree with you, what do you think the factors of the substantiality analysis should look like? [00:23:28] Speaker 01: Well, the only factors that seem, again, I grab on to Judge Wilkerson's concurring opinion. [00:23:36] Speaker 01: He made reference to the US attorney's manual and set forth. [00:23:41] Speaker 00: I know, but the majority in that case, they did. [00:23:44] Speaker 00: They reviewed the certification. [00:23:51] Speaker 01: To a limited degree, I suppose they did. [00:23:53] Speaker 01: They looked at the legislative history of the carjacking statute, and they said, it seems to be [00:23:59] Speaker 01: that this is an important statute because there's some legislative history here and there's a heavy punishment. [00:24:04] Speaker 01: I would point out that the other thing that the majority did in that case is that they identified the assaults upon and the murder of federal officials as being two examples of where substantial federal interests would lie. [00:24:21] Speaker 01: So that was more or less the extent of [00:24:25] Speaker 00: I'm just suggesting that we can do it. [00:24:28] Speaker 00: I mean, if we made you go back and justify it, you'd say it's a post-carrier during the performance of his duties. [00:24:39] Speaker 00: Well, Your Honor, I think I can probably went on that. [00:24:41] Speaker 00: I don't know. [00:24:41] Speaker 00: But that has an aura of substantiality. [00:24:46] Speaker 01: I guess I'd grab onto the defendant's word that was used this morning is that it's a nebulous standard. [00:24:51] Speaker 01: I don't know. [00:24:52] Speaker 01: Most judges aren't anxious to jump into [00:24:54] Speaker 00: So is the crime of violence. [00:24:57] Speaker 00: Reasonably, we do that. [00:25:00] Speaker 01: We've gotten so much guidance on crime of violence, though, Judge. [00:25:07] Speaker 01: I would jump to one last fourth point, just so I know you're in suspense wondering what that might be. [00:25:14] Speaker 01: But our position is that the defendant is again wrong on the facts by arguing that the government somehow lacks a substantial federal interest [00:25:23] Speaker 01: in prosecuting the murder of a federal employee. [00:25:26] Speaker 01: The statutes under which the defendant was charged are offenses that lie at the heart of federal concerns. [00:25:33] Speaker 01: It's inconceivable to me to suggest that the government does not have a substantial and abiding interest in protecting its employees from being murdered on the job. [00:25:44] Speaker 01: The government cannot function. [00:25:46] Speaker 01: It cannot perform any function without its employees. [00:25:50] Speaker 01: And again, even the Fourth Circuit case that the defendant [00:25:53] Speaker 01: is tied his whole case around, relies on, or describes assaults upon in the assassination of federal officials as examples of offenses that give rise to a substantial federal interest. [00:26:05] Speaker 03: Would it matter if the federal employee is acting outside the scope of his duties and, in fact, contrary to the directives of the guidance from the Postal Service for the performance of his duty? [00:26:23] Speaker 01: Your Honor, I think that where the government and the defendant would join issue on that matter is if you believe that that's not the case, it's an element of the crime. [00:26:35] Speaker 01: Whether he was engaged in or acting on account of the performance of his duties, that's challenged at a trial. [00:26:42] Speaker 01: This defendant opted to plead guilty and admit that element of the crime. [00:26:47] Speaker 01: So I don't think it would come within the scope of what the court would review [00:26:52] Speaker 01: as a matter on the front end in terms of a certification. [00:26:56] Speaker 01: One, because review doesn't apply according to every other court that's looked at it. [00:27:02] Speaker 01: But two, because it's in the same way the court wouldn't decide whether or not the defendant was acting in self-defense. [00:27:10] Speaker 01: And I see my time has expired. [00:27:12] Speaker 00: I just wanted to ask the same question that I asked Ms. [00:27:14] Speaker 00: Phillips. [00:27:16] Speaker 00: Let's say the District of New Mexico, [00:27:19] Speaker 00: US attorney is going to prosecute all juvenile sex assaults in federal court. [00:27:28] Speaker 00: Even garden variety types of misconduct. [00:27:34] Speaker 00: My priority is to elevate all sex crimes to federal court. [00:27:40] Speaker 00: Would that pass muster? [00:27:42] Speaker 00: Would there be a substantial federal interest in those circumstances? [00:27:46] Speaker 01: I think it would for all the reasons we've described before. [00:27:49] Speaker 01: The Department of Justice always has a strategic plan. [00:27:52] Speaker 01: Each attorney's office has an individual strategic plan. [00:27:56] Speaker 01: If we, for example, see a situation where suddenly we've got youth gangs out there carjacking, we certainly might adopt a zero tolerance policy for a period of time. [00:28:07] Speaker 01: And that's exactly the types of factors that Judge Wilkerson in the Fourth Circuit said belong to the prosecution to decide. [00:28:16] Speaker 01: And I would end with, of course, obviously, the court understands this, but that's not this case. [00:28:23] Speaker 01: But this case is just as to the individual factors that were identified in this particular certification. [00:28:31] Speaker 00: Thank you, counsel. [00:28:32] Speaker 00: Ms. [00:28:32] Speaker 00: Phillips, you have a couple minutes. [00:28:49] Speaker 02: I would like to start with the point that was made regarding distinguishing the Lemmonio case. [00:28:57] Speaker 02: My friend on the other side made two points to distinguish that case. [00:29:00] Speaker 02: The first is that the [00:29:02] Speaker 02: attorney general here isn't urging review. [00:29:05] Speaker 02: And my response to that is that that's completely irrelevant. [00:29:09] Speaker 02: The Supreme Court in the Bromski case, which is cited in our reply brief, recognized that the government's position on statutory interpretation is irrelevant to how the statute is actually determined. [00:29:24] Speaker 02: And the second point he made was that in LaMagna, it was conclusive or of the case, dispositive. [00:29:32] Speaker 02: of it, and I think that the certification here is even more dispositive than it was in Limonio. [00:29:40] Speaker 02: In Limonio, the outcome of the certification was just that the United States would assume the role of the defendant there, and the outcome of the certification here is whether there's jurisdiction at all, whether there can even be a case in federal court. [00:29:55] Speaker 02: So those distinguishing factors completely fall apart under review. [00:30:00] Speaker 02: I'd also like to respond to the government's argument regarding the text of the certification. [00:30:07] Speaker 02: To be clear, we are not arguing that the certification is any broader than it is, but if you look at the text of the certification, it admits that it's each enumerated charge that is the basis for the substantial federal interest. [00:30:24] Speaker 02: It is very plain. [00:30:25] Speaker 02: Paragraph one sets forth merely that the offenses occurred before Mr. Zamora was 18. [00:30:30] Speaker 02: which is required under the JDA. [00:30:32] Speaker 02: Paragraphs two and three then set forth what the charges are. [00:30:37] Speaker 02: It sets forth that two of them are federal crimes of violence and that one is a federal crime enumerated under the U.S. [00:30:44] Speaker 02: Code. [00:30:45] Speaker 02: And I'll note also that the 922X crime is also one that's enumerated in the JDA as a viable predicate for jurisdiction. [00:30:57] Speaker 02: So it then concludes that because these crimes are either a federal crime of violence or a federal crime enumerated in the U.S. [00:31:03] Speaker 02: Code, then therefore there is a substantial federal interest in each enumerated charge. [00:31:09] Speaker 02: And that completely collapses the inquiry that's required in the certification requirement under the JDA. [00:31:14] Speaker 02: And so the certification is improper. [00:31:16] Speaker 02: If there are no further questions. [00:31:25] Speaker 00: Appreciate your arguments well done your excuse and the case is submitted