[00:00:02] Speaker 00: Case number 12-3013, United States of America versus Dante Sheffield, Appellant. [00:00:08] Speaker 00: Mr. Becker for the Appellant, Ms. [00:00:09] Speaker 00: Bates for the Appellee. [00:00:17] Speaker 02: May it please the Court, on behalf of Dante Sheffield, I am William Fritz, the Savior Becker. [00:00:22] Speaker 02: With the Court's permission, I'll make an effort to address the questions that the Court presented in an order issued earlier this week. [00:00:31] Speaker 02: The first question seems to ask, as I understand it, for the interplay between the firearm provision and its enhanced penalty and the guidelines. [00:00:46] Speaker 02: My review of the sentencing proceeding seems to indicate that it was the guidelines and not the federal firearm provision. [00:00:59] Speaker 02: The court seems to say that at page 12 of the transcript. [00:01:03] Speaker 02: At page 13, the United States seems to say that it's the guidelines. [00:01:08] Speaker 02: And when the defense counsel spoke on behalf of Dante at page 30. [00:01:15] Speaker 02: I would indicate, and I think that we all are aware, that the two stylistic provisions, the statutory provision in the firearm statute, along with the guidelines section, which is 4B1.1 with its definitions at point two, seem to mimic one another. [00:01:38] Speaker 02: The second question presented [00:01:40] Speaker 02: is the assumption that the sentence enhancement of the firearm statute was not applicable. [00:01:48] Speaker 02: The sentence may attempted robbery qualifying under the first clause of the guideline definition. [00:02:00] Speaker 02: The Welsh decision, the recent Welsh decision, seems to indicate that those two particular clauses, small i and small b, [00:02:09] Speaker 02: They refer to the small i clause as the elements clause, whereas it appears throughout its history subsections double i appears to be referred to as the residual clause. [00:02:23] Speaker 02: And those are the clauses that were the subject of the void for vagus problems in Johnson last year in 2015, and the Welsh decision, which I believe the correct date on that, is the 18th of April of this year. [00:02:39] Speaker 04: Do you have a small definition in front of you? [00:02:42] Speaker 04: I know I have it somewhere amongst my papers here. [00:02:44] Speaker 02: Small lie. [00:02:45] Speaker 04: Yeah, the small. [00:02:48] Speaker 02: I believe I do, sir. [00:02:50] Speaker 04: Um, court's permission. [00:02:57] Speaker 04: I'm not being very clear on it, really. [00:02:59] Speaker 02: No, no, no, that's fine. [00:03:00] Speaker 02: I tried to mark it in my notes. [00:03:02] Speaker 02: Do you wish me to take it from the firearms statute or from the guidelines? [00:03:07] Speaker 04: Well, try giving us both, one at a time. [00:03:11] Speaker 02: Fair enough. [00:03:15] Speaker 02: Referring to 18 USC 924E, 2B small i. [00:03:23] Speaker 02: has, as an element, the use, attempted use, or threatened use of physical force against the person of another. [00:03:32] Speaker 04: Again, I'm probably being unfair, but wouldn't attempted robbery come within that? [00:03:39] Speaker 04: Forced violence is an element of robbery. [00:03:43] Speaker 04: Wouldn't an attempt to robbery come within that definition? [00:03:47] Speaker 04: Attempt being a lesser included offense, [00:03:50] Speaker 04: Well, your client had a prior for attempted robbery, didn't he? [00:03:54] Speaker 04: He did, sir. [00:03:55] Speaker 04: So wouldn't that come within that definition? [00:03:59] Speaker 04: And I know we forced you to argue this point. [00:04:02] Speaker 02: That's all right. [00:04:03] Speaker 02: I'm happy to try and accommodate you. [00:04:04] Speaker 02: I'll do everything I can to accommodate you. [00:04:07] Speaker 02: Um, [00:04:10] Speaker 02: I don't want to just out-and-out concede the situation, and here's why. [00:04:15] Speaker 02: Here's why. [00:04:16] Speaker 02: I don't mean to be cute or try and avoid the question. [00:04:20] Speaker 02: Here's my safe harbor for doing that. [00:04:23] Speaker 02: In the Taylor decision from the Supreme Court, when the penalty provision of the firearm statute seems to be first address, that gentleman had a burglary conviction. [00:04:35] Speaker 02: And Justice Blackmun in the Taylor decision said, well, wait a second. [00:04:39] Speaker 02: Burglary has got many statutory forms. [00:04:43] Speaker 02: And although Mr Taylor may not have totally prevailed, his case was remanded to see exactly where it fell within the statutory. [00:04:54] Speaker 04: If I recall correctly, does not have is a common law element of the use of force or violence where robbery as a common law offense at least does have. [00:05:07] Speaker 02: I agree. [00:05:08] Speaker 02: I agree. [00:05:10] Speaker 02: I'm not capable to change the common law, and that is correct. [00:05:13] Speaker 02: And so the common law takes the larceny elements, the six elements from there, and then I think that they add the assault-styled elements in that. [00:05:23] Speaker 01: Does attempted robbery have its own statutory elements in this case under D.C. [00:05:29] Speaker 01: law? [00:05:30] Speaker 01: I believe it does. [00:05:32] Speaker 01: I wouldn't look to common law when you have statutory elements. [00:05:35] Speaker 01: Right. [00:05:36] Speaker 01: Does statutory elements include force? [00:05:41] Speaker 02: The court's indulgence? [00:05:50] Speaker 02: The statute, particular statute for the attempted robbery across the street in the Superior Court is 22-2802. [00:05:57] Speaker 02: And then the offense of robbery precedes that, and that is 2801. [00:06:07] Speaker 02: And the elements are the taking from the possession, [00:06:15] Speaker 02: the yes, the use of force or violence or its threat. [00:06:19] Speaker 02: The property was carried away with the intent to permanently deprived of the use of force or violence. [00:06:28] Speaker 03: It does. [00:06:30] Speaker 03: I'm sorry, within the attempt statute or within the robbery statute? [00:06:33] Speaker 03: Within the robbery statute. [00:06:34] Speaker 04: The attempt statute is a general attempt statute applicable to several things. [00:06:39] Speaker 04: Right. [00:06:40] Speaker 04: The standard operating... I'm sorry. [00:06:42] Speaker 03: Here's my question. [00:06:43] Speaker 03: Maybe what you've been saying addresses it, but I want to put it in different terms so I know and understand the answer. [00:06:52] Speaker 03: At common law and in the Jones case in DC, [00:06:56] Speaker 03: the attempted robbery, which was of a bank, consisted of preparing and rehearsing and setting out to go to the bank in a vehicle full of weapons and diverting themselves from the destination because there were a bunch of police cars and sirens in the neighborhood, something seemed to have gone wrong. [00:07:25] Speaker 03: no violence, but they were convicted of an attempt. [00:07:32] Speaker 03: So there was an overt act, but the overt act was not one of violence. [00:07:39] Speaker 03: So if that can be an attempt in the district, then one can have an attempt without any of the violent elements of a robbery. [00:07:51] Speaker 02: I would agree. [00:07:53] Speaker 03: And we know that that's not what happened in this case. [00:07:56] Speaker 03: because of the allocution, the specific admission before the district judge as to what facts, what government's facts were correct, right? [00:08:08] Speaker 03: But as I understand DeCompt, the Supreme Court case, we're not supposed to look at that because we've got to, if we have before us an indivisible statute. [00:08:23] Speaker 03: Is that right? [00:08:25] Speaker 03: I'm not sure. [00:08:26] Speaker 03: Is the law an ass? [00:08:27] Speaker 03: I'm sorry? [00:08:28] Speaker 02: Is the law an ass? [00:08:30] Speaker 02: I'm happy that you call the law that, not myself. [00:08:35] Speaker 03: We know what the facts are here, but I don't see how underdictive we can look at them. [00:08:39] Speaker 02: I think the expression was by the author, possibly of the Welsh decision or maybe Johnson before it, [00:08:45] Speaker 02: Maybe it was Justice Scalia that the nine years that we've had this, it hasn't helped us and it hasn't cleared it up. [00:08:51] Speaker 02: And I point to, as a comparison, and I agree with your analysis 110%, the shotgun case, which was, I think, Johnson. [00:09:02] Speaker 02: He got the enhancement, again, with the firearm statute and the guidelines mimicking one another in language. [00:09:11] Speaker 02: He got the enhancement, but there was no showing of the use. [00:09:17] Speaker 02: Rather, as I read the case, when the police came to his house or apartment, he showed them the AK-47 and he shouldn't have had it. [00:09:27] Speaker 02: And that's what led to the removal of the residual clause. [00:09:34] Speaker 02: I think that there is a need to evaluate the priors on a case-by-case basis. [00:09:44] Speaker 02: Now, I know that the Taylor decision talks about, well, we just used a categorical approach. [00:09:50] Speaker 02: But even in Taylor, when there were seven types of burglaries, Justice Blackmun said, let's go back and look at this. [00:09:58] Speaker 02: And that's what makes it a bit difficult. [00:10:04] Speaker 02: But yes, Your Honor, I have this, I bear the burden of the record that is with us. [00:10:14] Speaker 03: Here's a statement from DeKalb. [00:10:16] Speaker 03: If the statute sweeps more broadly than the generic crime, [00:10:20] Speaker 03: So in our case, that would be the attempt statute as opposed to the substantive statute. [00:10:26] Speaker 03: A conviction under that law cannot count as an ACCA predicate, even if the defendant actually committed the offense in its generic form. [00:10:37] Speaker 03: The key, we emphasize, is elements, not facts. [00:10:43] Speaker 03: Now, they had their reasons, but the question is, are we there? [00:10:47] Speaker 03: Is that where we are or not? [00:10:50] Speaker 02: If you're asking me, is it clear, the answer is an unqualified no. [00:10:54] Speaker 02: It's not. [00:10:55] Speaker 02: And that's the problem that I think. [00:10:58] Speaker 01: That's not clear. [00:10:59] Speaker 01: I thought it was crystal clear from the Supreme Court that you look at the statutes and not the underlying facts. [00:11:06] Speaker 01: Depending on the nature of the statute, your inquiry can alter. [00:11:09] Speaker 01: But the first thing you have to do is decide what the nature of the statute is. [00:11:12] Speaker 02: Fine. [00:11:13] Speaker 02: No problem there. [00:11:15] Speaker 02: No problem there. [00:11:15] Speaker 02: Let's find what the nature of it is. [00:11:17] Speaker 01: And it sounds at least like, from the Jones case, the nature of the statute is you can commit attempted robbery without committing an act of violence or force. [00:11:29] Speaker 02: And I believe that that could happen in a unique set of circumstances. [00:11:34] Speaker 01: I'm just talking structurally under this statute. [00:11:37] Speaker 01: We don't look at facts until we determine what kind of statute it is. [00:11:41] Speaker 01: And so I thought your answer was that the attempted robbery statute itself will allow prosecution of robberies that obviously involve force of violence and ones that don't involve force of violence. [00:11:57] Speaker 01: At least when the person's caught, that's why it's attempted. [00:12:00] Speaker 02: And I think one could say that since the attempt is the incomplete offense, the generic or the primary offense, that the attempt could be a situation in a factual basis where that particular element, the violence element, did not occur. [00:12:30] Speaker 01: All right, we'll give you some time for a rebuttal. [00:12:33] Speaker 02: Fair enough. [00:12:34] Speaker 02: Thank you. [00:12:55] Speaker 00: I'll also begin with the questions that this court posed regarding the career offender sentence in this case. [00:13:05] Speaker 00: Just to back up, we agree that in this case it's not clear. [00:13:09] Speaker 00: that the trial judge, the district court judge, which clause she relied on in finding that the attempted robbery was a crime of violence. [00:13:17] Speaker 00: And this is an offense looking at the other priors that appellant has that is necessary to find that the career offender. [00:13:27] Speaker 04: Would it not be our normal approach that we do not assume an error? [00:13:31] Speaker 04: We can prove the decision, for example, on the question of which [00:13:40] Speaker 04: of violence in favor of affirmance unless it's been shown to be an error. [00:13:48] Speaker 04: Yes, I think so. [00:13:52] Speaker 00: I'd like to just back up for one second in finding attempted robbery as a crime of violence. [00:13:57] Speaker 00: There are really three different clauses that [00:14:01] Speaker 00: you can look to under the guidelines. [00:14:03] Speaker 00: There's what's referred to as the Elements Clause. [00:14:06] Speaker 00: It has as an element the attempted use or threatened use of physical force against the person of another. [00:14:12] Speaker 00: There are also a subset of enumerated offenses specifically listed either in the text of 4b1.2b. [00:14:22] Speaker 00: point to A2, I apologize, but also in application note one, which under Stinson is authoritative, and this court can look to that. [00:14:30] Speaker 00: And robbery is one of the enumerated offenses in the guidelines. [00:14:35] Speaker 00: And then third, there is what's commonly referred to as the residual clause, the remaining portion of 4B1.2A2. [00:14:45] Speaker 00: which is the language or otherwise involves conduct that presents a serious potential risk of physical injury to another. [00:14:53] Speaker 00: That is the language, and it's identical language. [00:14:56] Speaker 00: It's the subject of the Johnson decision. [00:14:58] Speaker 00: However, Johnson was a case that was an Armed Career Criminal Act case analyzing that language in 924E. [00:15:04] Speaker 00: And so there's a threshold question of [00:15:09] Speaker 00: What is the state of the residual clause in the guidelines now post-Johnson? [00:15:13] Speaker 01: What is your position? [00:15:16] Speaker 01: That's somehow less vague. [00:15:18] Speaker 01: You agree that Johnson applies directly to the sentencing guideline provision as well, and so it's unconstitutional. [00:15:24] Speaker 01: The residual clause, not the full thing, the residual clause is unconstitutional. [00:15:27] Speaker 00: Yes, that is the government's litigating position across the country, that the residual clause in the guidelines we will not rely on. [00:15:33] Speaker 00: We recognize that that's still the subject of some debate amongst other circuits. [00:15:38] Speaker 00: And so Johnson's analysis applies there, although we believe Johnson's analysis applies differently with respect to retroactivity or issues that are [00:15:45] Speaker 00: not subject to this appeal. [00:15:48] Speaker 00: So we're left with two clauses, the elements clause and the enumerated offense clause. [00:15:53] Speaker 00: And in analyzing whether the DC offense of attempted robbery is a crime of violence under either of those clauses, the threshold question is, what conduct does the statute, attempted robbery, prohibit? [00:16:06] Speaker 00: And does it prohibit conduct that falls outside of either [00:16:11] Speaker 00: the generic offense of robbery, the enumerated offense of robbery, or the elements clause. [00:16:16] Speaker 00: And first addressing this issue of attempt, [00:16:21] Speaker 00: The language of the elements clause is clear that it applies to, and a crime of violence can include, an offense that involves the attempted use of physical force against the person of another. [00:16:33] Speaker 00: In fact, the guidelines commentary also makes this point in application note one, where it states that crime of violence and controlled substance offense include the offenses of aiding and abetting, conspiring, and attempting to commit such offenses. [00:16:48] Speaker 04: Now, that's from which? [00:16:49] Speaker 00: That is from, I apologize, Application No. [00:16:52] Speaker 00: 1 to Section 4B.1.2 of the guidelines. [00:16:57] Speaker 00: And in looking at what an attempt requires in the statute, an attempt requires a substantial step, an overt act in furtherance of the crime of robbery. [00:17:09] Speaker 00: And it's the government's position that, looking at all of those, that an attempted robbery does satisfy the Elements Clause and does [00:17:19] Speaker 00: you know, encompass the enumerated offense of robbery, even as an attempt, given, again, the clear language in the guidelines incorporating attempts. [00:17:28] Speaker 01: Does the overt act have to include force or violence? [00:17:31] Speaker 00: No, but I think that an attempted robbery, again, would include the attempted [00:17:39] Speaker 00: use of the physical force. [00:17:41] Speaker 04: The commission of a crime which involved the physical force. [00:17:45] Speaker 01: Yes. [00:17:46] Speaker 01: And the force of violence in the robbery statute itself, which the text of which includes snatching, I thought it was settled that that was not necessarily did not rise. [00:17:56] Speaker 01: Even the robbery statute itself did not always rise categorically to the level of force of violence needed for purposes of the guidelines enhancement. [00:18:05] Speaker 01: Is that right? [00:18:06] Speaker 00: Yes, putting aside the issue of just the effect of the attempt here, if this court were to find that the robbery statute [00:18:14] Speaker 00: prescribed punished conduct that fell outside of the Elements Clause or the generic form of robbery. [00:18:21] Speaker 00: The next step would be to decide whether the DC robbery statute is divisible, whether the statutory tax sets out alternative ways of committing the crime. [00:18:31] Speaker 00: And to the extent your honor has pointed to the language that you can commit a robbery under the DC code by stealthy seizure or snatch, I think there are prior cases from this court [00:18:42] Speaker 00: Mathis, and in race yield case, that suggests that that type of robbery may fall outside of the robbery that requires the requisite force, and may even, if you look to treatises and other states' robbery statutes, fall outside of the generic offense of robbery. [00:18:59] Speaker 00: It's the governor's position. [00:19:00] Speaker 03: It wasn't just a possibility. [00:19:02] Speaker 03: I mean, in Mathis, we just said it's flat out. [00:19:05] Speaker 00: Yes. [00:19:06] Speaker 00: I'm sorry if I'm being. [00:19:07] Speaker 00: That's all right. [00:19:10] Speaker 00: And so then the question would be, is the statutory text divisible? [00:19:14] Speaker 00: And it's the government's position that it is. [00:19:16] Speaker 00: The text of the robbery statute itself sets out that the robbery must be committed by force or violence and provides specific language in the statute of the different ways in which the robbery can be committed, against resistance, by stealthy snatch or seizure, or by putting in fear. [00:19:35] Speaker 00: And so the question then becomes, can you go to a specific set of documents, commonly referred to as the shepherd documents, and determine which type of robbery the defendant in the case was necessarily convicted of? [00:19:49] Speaker 00: And we believe in this case that the shepherd documents, and those were the subject of the recent supplemental filing that the government made, that the shepherd documents here was a plea case. [00:20:00] Speaker 00: The indictment and the transcript of the plea colloquy that includes the facts that the defendant admitted to would show that the defendant admitted and was necessarily convicted of the type of robbery that satisfies the elements clause. [00:20:14] Speaker 01: How is it that we get to look at those documents under Shepard? [00:20:18] Speaker 00: The question is whether the robbery statute is divisible. [00:20:21] Speaker 00: And if you find that the robbery statute is. [00:20:24] Speaker 01: But how could we find if we find it's divisible, right? [00:20:29] Speaker 01: But if the attempted robbery one, do we have to find the attempted robbery one is divisible, too? [00:20:36] Speaker 00: So yes, in the attempted, I mean, I think trying to piece this, the attempted robbery statute incorporates and specifically refers to the robbery statute itself. [00:20:50] Speaker 00: And so to the extent that the question is, [00:20:54] Speaker 00: not just the effective attempt, but the type of robbery. [00:20:58] Speaker 00: The attempted robbery statute by referring to robbery incorporates the text of the robbery statute. [00:21:03] Speaker 00: It refers to the specific code section of the robbery statute. [00:21:08] Speaker 00: Again, government's position, and I would be happy and welcome the opportunity to brief more fully this issue. [00:21:15] Speaker 00: But then you do look to that text that's incorporated of the robbery subsection, the previous subsection. [00:21:23] Speaker 00: And the statutory language there, again, clearly sets out these alternatives. [00:21:30] Speaker 03: Don't go away. [00:21:31] Speaker 03: I'm trying to catch up with you. [00:21:36] Speaker 01: Can I ask a good question about the 404B evidence, including a very stale 11-year-old conviction that was included? [00:21:45] Speaker 01: I noticed that if we were to determine that that was improperly admitted, your only harmless error argument was made in a footnote. [00:21:59] Speaker 01: one conclusory sentence and a footnote. [00:22:02] Speaker 01: And we have precedent in this court that says one conclusory sentence and a footnote is not sufficient to preserve an argument for our consideration. [00:22:12] Speaker 01: So what will we do with the fact that you wouldn't have seemed to have preserved a harmless error argument on that stale conviction, if it were to conclude it was too stale to have been related? [00:22:24] Speaker 00: I mean, I'd like to address first the threshold question. [00:22:26] Speaker 00: But I apologize. [00:22:30] Speaker 00: that sentence. [00:22:31] Speaker 00: I think that, again, the issue is discussed and to the extent that the footnote is referring to, again, some of the discussions in the text about the potential prejudice and the weighing of the probative value. [00:22:46] Speaker 00: And so the footnote, although maybe brief, that specifically relates to farmlessness, was meant to incorporate the arguments that were above as well. [00:22:54] Speaker 00: in the language regarding the minimal prejudicial impact given, again, the discussion of the limiting instructions that were given, the use of this evidence by the prosecutor at trial. [00:23:06] Speaker 00: And so it was an effort by the government to not repeat itself as to those same points, but to refer to that. [00:23:11] Speaker 01: I'm not saying you couldn't have made a really good harmless error argument. [00:23:14] Speaker 01: I'm trying to figure out what to do with sort of precedent that says one conclusory sentence and a footnote that essentially throws the ball back in our court. [00:23:22] Speaker 01: to do the work isn't sufficient to preserve a claim. [00:23:26] Speaker 00: And again, I hope that this footnote sentence was not read as just a conclusory. [00:23:33] Speaker 00: It was not harmless, but was saying for the same reasons and was meant to incorporate reasons that were actually articulated. [00:23:39] Speaker 04: Might you test the word around the office, that if you want us to read something, put it up where our eyes naturally are. [00:23:45] Speaker 04: If God had meant for us to read footnotes, he would put our eyes on the vertical plane rather than on the horizontal. [00:23:51] Speaker 04: Thank you. [00:23:55] Speaker 04: I will pass that advice along. [00:24:04] Speaker 03: You put an appropriately succinct and brief article in, I believe, the Colorado Law Review and worth rereading from time to time. [00:24:15] Speaker 00: Thank you. [00:24:16] Speaker 00: But as to harmlessness, the argument was meant to incorporate the fact that this was, that there were limiting instructions given to the jury. [00:24:23] Speaker 00: There was ample other evidence here that went to these issues, including appellant's own statement, and that to the extent that this court were to find that part of the 404B evidence was [00:24:37] Speaker 00: an abuse of discretion to admit, which we maintain it was not, in the balancing given, again, that these, in addressing the time factor that was a point that we tried to address separately in the brief as well, that although there was an 11-year time gap, you can also look to the fact in weighing the prejudice and appropriate value that this was the exact same narcotic [00:25:01] Speaker 01: All it was was a record of a conviction. [00:25:04] Speaker 01: It didn't give the jury any facts from which they could infer anything about that that might be relevant to inferring intent or knowledge in this case. [00:25:13] Speaker 01: It seems to me that it was about as naked propensity evidence as you could have, and it was 11 years old. [00:25:21] Speaker 01: So the fact... Do you have a case where we've upheld something that's 11 years old and it is just the fact that he did it once before? [00:25:28] Speaker 00: I will say, I mean, stemming from Crowder and then looking to this court's more recent cases, and some of these were pedified. [00:25:38] Speaker 00: I think it's one cited in an appellant's brief. [00:25:42] Speaker 00: Douglas. [00:25:43] Speaker 01: Were any of those 11 years old? [00:25:45] Speaker 01: Those cases? [00:25:46] Speaker 01: Not the cases, the evidence. [00:25:48] Speaker 00: No, I don't believe that they were 11 years old in those cases. [00:25:51] Speaker 00: But to address your honor's point about it's just the fact of the conviction, that is the type of evidence that this court has routinely [00:25:58] Speaker 00: endorsed in these types of cases as being properly admitted under 404B. [00:26:03] Speaker 01: Do you have any that have been this old? [00:26:05] Speaker 01: I think in our McGill case recently we found something in a much shorter time frame was too stale to be considered. [00:26:11] Speaker 00: Yes, and I think [00:26:14] Speaker 00: The McGill case was a different set of factual circumstances, and I would be happy to look for a case and provide that by way of a letter. [00:26:25] Speaker 00: You don't have cases in your brief that you've given us now that you can recall that are... I don't recall one that is 11 years, but I don't think that that specific amount of time, again, [00:26:35] Speaker 00: This is a rule of inclusion that the jury was given, limiting instructions as to the very specific use that they could make of this. [00:26:43] Speaker 00: And the fact that the defendant had a prior conviction for possessing and having the intent to distribute the very same narcotic [00:26:51] Speaker 00: is relevant and is probative, despite it being 11 years old, to show that he's familiar with the narcotic, that he would have knowledge of what PCP is, and the jury would have to find here in a constructive possession case that he didn't think that this was simply a lemon juice bottle filled with lemon juice or some other liquid, but that he had knowledge that it was in fact a controlled substance. [00:27:13] Speaker 00: And I think that his familiarity with PCP, even be it 11 years ago, would go to show that he does know, and he does have familiarity and knowledge of what PCP is, that it's a controlled substance, and would make it more relevant and probative for the jury to find that he possessed and intentionally and knowingly possessed the controlled substance in this case. [00:27:37] Speaker 04: It's getting awfully close to a propensity line when you put that [00:27:45] Speaker 04: he would have. [00:27:46] Speaker 00: So the judge specifically instructed the jury that they weren't to use this for the forbidden purpose of concluding that simply because he had committed a bad act in the past, he was a bad character, and committed that act here, and told the jury that they could use that to determine whether or not he had the knowledge and intent. [00:28:07] Speaker 00: And that limiting instruction was given twice. [00:28:09] Speaker 00: There was no additional instruction that was requested. [00:28:12] Speaker 00: And this court routinely has a long history of stating that prior convictions for possession with intent to distribute narcotics are probative and are admissible under 404B for this exact purpose. [00:28:42] Speaker 03: I risk prolonging this a few minutes because I'm not the only one here, I'm sorry. [00:28:48] Speaker 03: Could you just give me again, give us again, your argument in the simplest terms possible as to why the DC robbery statute is, in your view, divisible? [00:29:03] Speaker 00: Yes, and I will try to do this in the simplest terms possible, make it the language before me. [00:29:11] Speaker 00: So the attempted robbery statute reads, whoever commits or attempts to commit robbery as defined in section 22-2801, Biovert Act, and then it provides the punishment. [00:29:25] Speaker 00: And so then we would say that the attempted robbery statute directs this court to the language in 22-2801. [00:29:32] Speaker 00: And that language states, whoever, by force or violence, whether against resistance, [00:29:41] Speaker 00: or by sudden or stealthy seizure or snatching, or by putting in fear, shall take from the person or immediate actual possession of another anything of value is guilty of robbery." [00:29:52] Speaker 03: Okay, so let's assume we've got a case of stealth. [00:29:55] Speaker 00: Yes. [00:29:55] Speaker 03: Robbery by stealth. [00:29:56] Speaker 03: Go on. [00:29:57] Speaker 00: And so, to the extent that this court determined that the robbery statute was divisible, as the government maintains that it is, [00:30:06] Speaker 00: And the Shepard documents, whether it be the jury instructions in a trial case or the plea colloquy in a plea case, made clear that it was a pickpocketing type robbery, a stealthy snatcher seizure. [00:30:18] Speaker 03: All that I get is you said one thing and then you said therefore it's divisible and then said another thing. [00:30:24] Speaker 03: No problem with the last. [00:30:26] Speaker 03: Where does the therefore it's divisible come from? [00:30:30] Speaker 00: Again, the government is relying on the fact that there are three ways of committing the robbery that are specifically set forth in the text of the statute. [00:30:40] Speaker 00: Those three ways are first, whether against resistance, second, by sudden or stealthy seizure or snatching, and third, by putting in fear. [00:30:48] Speaker 03: Well, you're not saying those are all violent acts. [00:30:51] Speaker 03: Stealth? [00:30:52] Speaker 00: And correct. [00:30:53] Speaker 04: So the statue, not saying stealth is a valid act, but the primary principle clause of the statute. [00:30:59] Speaker 04: Read the beginning of the statute again, please. [00:31:02] Speaker 00: Whoever by force or violence, comma, whether against resistance or by sudden or stealthy seizure or snatching. [00:31:10] Speaker 04: So does that not grammatically suggest that stealthy seizure [00:31:16] Speaker 04: is within the concept of violence, otherwise the statute does not make grammatical sense to it. [00:31:22] Speaker 00: And again, I would welcome the opportunity to brief this and perhaps [00:31:28] Speaker 00: at that time, with more time to think about this, I might have a different position, but I don't think, given this court's prior case law and case law from other jurisdictions, that I think what we have here... If you get to any case law, take the language of the statute. [00:31:42] Speaker 04: I don't know if you diagrammed sentences when you were in school or not, but in order to make it be grammatically sensible, [00:31:49] Speaker 04: that you have to have those subordinate causes within the primary. [00:31:53] Speaker 04: So having set forth violence in the primary and then set forth those modifying causes the to make grammatical sense. [00:32:01] Speaker 04: And I would come within the problem. [00:32:03] Speaker 00: I would like to make that argument. [00:32:05] Speaker 00: I'm not sure that that is [00:32:08] Speaker 00: They won't let you. [00:32:10] Speaker 00: I'm not sure that the case law suggests that that is the argument. [00:32:14] Speaker 00: Again, I will take a closer look at this. [00:32:17] Speaker 04: I'm not sure there's any case law directly on thought on this. [00:32:21] Speaker 00: So force, for purposes of the Elements Clause, has a very specific definition. [00:32:25] Speaker 00: And there's the possibility that the type of force that the Elements Clause speaks to is not the stealthy seizures. [00:32:33] Speaker 04: Would you say the Supreme Court has been totally consistent [00:32:37] Speaker 04: Don't we have a couple of cases on his case that say that that was a crime of violence because somebody might react violently if you escape from them? [00:32:46] Speaker 00: No, I think this is an exceedingly difficult and complicated issue right now. [00:32:52] Speaker 03: Let me just get this in front of you because I think we're gonna, I think the presiding judge may ask you to submit in writing. [00:33:01] Speaker 03: In the [00:33:04] Speaker 03: This is bearing in mind Judge Santel's observation. [00:33:08] Speaker 03: And my question is whether in the Sealed case or Mathis, we didn't already look at that and then say, nonetheless, because, well, here, let me see, I can just find the passage for you. [00:33:24] Speaker 03: Okay, very brief here. [00:33:26] Speaker 03: Here it is. [00:33:30] Speaker 03: Although the robbery statute says, quote, by force or violence, close quote, in Ray Sealed case, we said this. [00:33:38] Speaker 03: As we explained in Mathis, by defining force or violence to include the minimal level of force necessary to obtain property by sudden or stealthy seizure or snatching, the statute covers offenses that fail to qualify as crimes of violence under 4B12. [00:33:54] Speaker 03: So my simple question is this, is that responsive to what Jess Santel just said? [00:34:04] Speaker 00: I believe it is. [00:34:05] Speaker 00: And so that is, again, why [00:34:08] Speaker 00: I think that standing here today, unless I were to say something different upon more reflection over this issue, I think that the question is going to hinge on whether the statute is divisible and whether this Court gets to the modified categorical approach. [00:34:25] Speaker 04: If it's not divisible, isn't that to your benefit rather than your detriment? [00:34:30] Speaker 04: I'm losing something in this case. [00:34:31] Speaker 04: So if it's not divisible because... If it's not divisible, then the whole darn thing is defining a crime of violence. [00:34:37] Speaker 04: You win. [00:34:39] Speaker 04: I'm not following why you want me to lose. [00:34:42] Speaker 00: If it's not divisible because D.C. [00:34:44] Speaker 00: robbery, perhaps different than some other jurisdictions robbery statutes. [00:34:48] Speaker 04: You're not answering the question I'm asking. [00:34:49] Speaker 00: I don't think that we win. [00:34:51] Speaker 04: You don't think you win if it's not divisible? [00:34:53] Speaker 04: Why is it not the case then that it's defining a crime of violence indivisibly and you win? [00:35:01] Speaker 04: Again, I would look to... If it's divisible, then it could be a monocrime of violence. [00:35:07] Speaker 04: Are you mad with me? [00:35:10] Speaker 01: I feel that I'm arguing the wrong position here, but I don't... That was unprecedented for us, is that right? [00:35:17] Speaker 03: The answer you don't want to give is that this court's already tortured the statute into this... Yes, and I think that there are other cases from other jurisdictions and [00:35:30] Speaker 00: And I believe perhaps even the Supreme Court weighing in on this kind of stealthy snatch or seizure not being sufficient to satisfy the forced definition of the elements clause. [00:35:41] Speaker 00: And one last thing I would point out is one of the reasons that I would also suggest that supplemental briefing may be helpful in this case is that issues that could be implicated in this case are currently before the Supreme Court in a case called Mathis, different than this court's Mathis case. [00:35:57] Speaker 00: that speaks about when it's proper to apply the modified categorical approach, and we expect a decision by the end of this term in that case. [00:36:08] Speaker 00: Unless there are any further questions, we ask that the judgment below be affirmed. [00:36:18] Speaker 02: I want to assure the court that your guidance about footnotes has been received and will be incorporated, and I'll try and return to my diagramming practices as a student. [00:36:31] Speaker 02: I certainly don't want to make things more difficult, but... Yes, you do. [00:36:37] Speaker 04: If you're a defense attorney, that's your job. [00:36:41] Speaker 02: Perhaps I was thinking of trying to get another synonym other than difficult. [00:36:45] Speaker 02: But it's your job to say that you're not trying to. [00:36:48] Speaker 02: Exactly. [00:36:53] Speaker 02: Excuse the pun, but the footnote that I would add is that if this was a guideline-style situation, when they talk about force, [00:37:05] Speaker 02: one could say, in an effort to try and complete the expression, that it's physical force against the person. [00:37:12] Speaker 02: The second thing is I'd like to take a minute and address the 11-year-old conviction, please. [00:37:19] Speaker 02: And please don't think that I'm abandoning the other arguments, but I see where the Court's attention is. [00:37:26] Speaker 02: I think that the court is abundantly correct when you look at that for what happened 9 to 11 years ago. [00:37:33] Speaker 02: I would not want my intent from 2006 on the weekend of the 20th to the 21st of May be demonstrative of what my intent is this morning and tomorrow morning. [00:37:47] Speaker 04: We're not going to ask you what you were up to. [00:37:52] Speaker 02: Someone asked in the lawyer's lounge, and I think I may have mentioned that it was Preakness Week. [00:37:56] Speaker 02: It could have been that. [00:37:57] Speaker 02: I don't know. [00:37:57] Speaker 03: Well, if 11 years ago on that date it's understood and not disputed that you were playing chess, isn't that an indication that you know how to play chess? [00:38:07] Speaker 02: It is, but when one formulates a criminal intent, there's an element of bad behavior. [00:38:15] Speaker 02: And I think that [00:38:17] Speaker 03: being able to okay with it but that seems to me that's that's an objection to the longest accepted practice of using the cautionary instruction that the district judge did use here well [00:38:30] Speaker 02: I'm not aware of anything of that age. [00:38:33] Speaker 02: And in our brief, we pointed out the Bowie decision, which was much closer. [00:38:37] Speaker 02: I think it was just a month. [00:38:39] Speaker 02: The recent McGill decision that the court, that was the 1st of March of this year. [00:38:44] Speaker 02: Now, that was a longer trial. [00:38:46] Speaker 02: And I don't know factually the precise amount of time those other bad acts were, but they didn't have the temporal distance. [00:38:54] Speaker 02: And I think of another fact that is important in that as to intent. [00:38:59] Speaker 03: knowledge or an analogy. [00:39:02] Speaker 03: It was knowledge was admitted for knowledge. [00:39:05] Speaker 02: Knowledge. [00:39:06] Speaker 02: But if we take the starting point of knowledge, the fact remains that this was in a locked consult. [00:39:20] Speaker 02: It was not in his backpack. [00:39:22] Speaker 02: It was not in his duffel case. [00:39:25] Speaker 03: In fact, he said everything in the car is his. [00:39:31] Speaker 02: He did. [00:39:31] Speaker 02: He did. [00:39:34] Speaker 02: Yes, sir. [00:39:36] Speaker 01: All right. [00:39:38] Speaker 01: Mr. Becker, you are appointed by the court to represent Mr. Sheffield in this case. [00:39:42] Speaker 01: We thank you for your assistance. [00:39:44] Speaker 01: And I think we would like supplemental briefing on the Johnson issue, 10 pages, seven days. [00:39:53] Speaker 01: So next Friday, if that works for everybody. [00:39:55] Speaker 01: If it doesn't, you can let us know. [00:39:56] Speaker 01: 10 pages, seven days. [00:39:58] Speaker 01: Does that work? [00:40:00] Speaker 03: Yes, the same three questions. [00:40:03] Speaker 03: Very well. [00:40:04] Speaker 01: Thank you very much. [00:40:05] Speaker 01: I'm sorry. [00:40:07] Speaker ?: Thank you. [00:40:08] Speaker 00: Thank you very much. [00:40:15] Speaker 00: The case is submitted.