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Case number 16-3123 at L, United States of America versus Marlon Haight, appellant.

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Ms.

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Witts for the appellant cross-appellate, Mr. Jones for appellate cross-appellant USA, and Ms.

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Bates for appellate cross-appellant USA.

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May I please court Jennifer Wicks on behalf of Mr. Haight.

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I would like to reserve five minutes for my rebuttal argument.

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I would like to start with the request for continuance by the defense.

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I do, quite honestly, think it was an abuse of discretion for the court to deny the motion, given the procedure that had occurred, which was counsel had relied on the court, albeit provisionally,

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you know, coming out with suppressing the evidence that was Mr. Haight's alleged writings back in February.

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And the defense counsel had clearly relied on that until the court

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essentially reversed itself in May.

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Council provided ample reason, her trial schedule, the steps involved in locating expert, which she had done, trying to find the materials for the expert to evaluate against the writings.

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I think it's a little different than the cases having to do with challenging the government's expert when the

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I think in those types of cases, the government has provided notice that we're using this expert.

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Here, the government didn't have an expert.

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This was essentially a defense, though.

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Clearly, if these writings are not written by Mr. Haight, that's a complete defense.

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a proper reason to even exclude the writings.

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What's the evidence of prejudice here?

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Is there any reason to believe in evidence that you proffered that it wasn't his handwriting?

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Did anybody testify that it wasn't his handwriting?

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No.

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Do you have any reason to think that a handwriting expert would say it wasn't his handwriting?

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I think given the proffer of defense counsel that she had consulted with the expert and was finding other samples.

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But there wasn't a proffer that the expert preliminarily thought it was in his handwriting or anything like that.

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The only evidence we have is it's found in his girlfriend's backpack that his employment papers are with it.

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and that it uses his name constantly and his location.

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So maybe that it would have been good and certainly the judge could have granted a continuance, but at this stage you have to show prejudice as well as

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some kind of error.

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Normally in these circumstances, the defense counsel presents some reason why, other than maybe it will happen and maybe it won't, that the expert would be helpful.

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And I think the issue, though, is the defense counsel is entitled to the time necessary to determine that.

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And she had been, I think, remarkably diligent since May, given her schedule, in locating an expert, speaking with the expert, and then working on gathering the materials that that expert wanted.

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I agree she did not proffer that there was any preliminary finding, but there were clearly steps of evidence that she needed to procure.

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And I think our backup argument is that we don't have to show prejudice at this point regarding the ineffective claim.

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And I think, you know, my other concern is this case... Why don't you have to show it?

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I thought the Strickland test requires

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Well, because I'm asking for a remand in order to show that.

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Right, but it requires both deficient behavior conduct and prejudice.

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And we do remand if there's even some good reason to think that there would be prejudice, but you haven't provided any at all.

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Well, I think the issue is I think it's deficient for council not to have challenged that.

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I think getting expert and

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examining the evidence in the almost 18 months that the case was pending before the trial, I think proficient counsel would have done that to figure out is this really Mr. Haight's writings or not.

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That cuts exactly against the argument you just made, which was that she was diligent, working really hard since May, et cetera.

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Which is your position?

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Well, I do have both positions.

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The second one is my alternative position.

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But I think in the first, when the court has ruled that that evidence isn't coming in, then you're saying, OK, I have a trial, but I don't have this evidence.

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And so I think there's two ways to look at it.

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One is, how long the case was pending, what would proficient counsel have done?

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But then when you're looking at the motion to continue, the court has to look at,

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What has, procedurally, where are we in the case?

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And the court ruled in February that that evidence wasn't coming in.

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And so then for counsel to rely on that, I think, is reasonable under those circumstances.

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But if you're looking at what would counsel do in this case right from the beginning when you have that evidence, I think proficient counsel would

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have worked before then to figure out, is there a way that I can challenge and just completely knock out this evidence?

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Because if it's not Mr. Haight's writings, then I don't have to worry about that.

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On the question of whether there was a kind of a surprise in May when the district court ruled that the evidence was going to come in, at what point had the government invoked the automobile exception as a basis for introducing the evidence?

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I'm sorry?

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At what point had the government introduced the automobile exception as a basis for introducing

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the evidence that was in March?

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They had filed a pleading between, yeah, I think their pleading was filed in March after the February hearing.

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They were given time to file further submission.

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And based on that, the court sort of then almost again provisionally said, well, you can file something if you want.

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But given they're in May, he said to the defense, you can file something if you want.

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that I'm essentially reversing the decision that I made in February.

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But it was based on an argument that had been raised in March.

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Is that right?

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I believe so, Your Honor, yes.

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But I think... And defense counsel didn't respond to that argument, correct?

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Defense counsel had not filed anything, yes.

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And, you know, given, I think,

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It's unclear to me why the government hadn't raised that before the motions hearing in February.

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And I certainly think we're not challenging the court's decision.

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I think that is the law and that should have applied to the facts of the case.

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and considering that law, I think that strengthens my argument on the ineffective claim because proficient counsel would have considered ahead of time if that

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if the motion to suppress would really have won the day, and... Right, I guess I was raising it with respect to the continuous claim, and it just gets back to the notion that these are somewhat across purposes, but with respect to the continuance argument, if that basis for admission hadn't come up until March and there was no response to it, then it seems like it might have been apparent as of March that the evidence was going to come in because the automobile exception applied.

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I think it may have been, I think in defense counsel's mind, the issue changed in May when the court made that decision and she made every effort at that point to

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locate the expert to do the investigation and try to gather the materials for that expert.

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I think the court made a decision in February that he didn't want to continue the trial absent some compelling good cause.

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But I think when you're looking at the potential prejudice at that point to Mr. Haight in defending his case, he didn't

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He didn't even consider a brief continuance.

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You know, he didn't inquire as to how much additional time do you think you need to gather those materials?

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Well, he, I'm sorry to interrupt, he had already granted several continuances.

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He said council is very experienced.

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There had been enough time, right?

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Right, but I think the problem is,

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regardless of her experience, there were steps that needed to be taken to procure that evidence.

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And so it's not something that would rely on counsel being experienced and meeting an argument in court or a compelling cross-examination.

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It was actual work that needed to be done outside of court before the trial and with notice to the government if she was going to be calling that expert.

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Moving on to

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the identification issue.

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While I see government's argument that there was a statement in opening statement that could be interpreted to be talking about that identification, I think as counsel made very clear in the record

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The first identification by Proctor was not one that she had been provided notice of.

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I think the record is very clear that she indicates when this is brought up during the police officer's testimony that this was not something that she was put on notice of.

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It had a... I'm sorry, this is the part I didn't understand about her not having notice.

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What does that mean when she says she didn't have notice?

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I mean, it's surprising that

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I think it's part of the mysteriousness of the procedure is that there was nothing in the paperwork, there was nothing in the discovery that indicated that this first identification procedure had taken place.

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So why isn't there an argument here about

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government failing to produce discovery.

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You don't have that argument at all.

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Not like a rule 16 violation.

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She didn't make that argument below, and I think that is a potential argument that could have been made, but I think the problem is, well, the issue that's raised is when the witness is not

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when there hasn't been an opportunity for cross-examination, the witness, the witness, the government appears to be asking the witness about this issue, and the witness denies it happens.

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It says, no, the identification is this other one, which is what I'll call the second one from the cell phone.

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So at that point, if this... Well, she did then, and so we have the statement in opening.

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muffed identification undirect.

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But then Defense Counsel Cross examined and asked about an identification.

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The person said, well, he showed me the mugshot.

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That was obviously the identification we're talking about.

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And Defense Counsel quickly got away from that, not wanting the jury to know that there was a mugshot, which would have suggested a prior conviction.

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So there was that opportunity there during Cross.

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not followed up, right?

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I thought it was very clear that she only thought there was one identification and that she, while he may have been referring to it, I took it that the defense counsel thought that he was that

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when we're talking about Proctor, that Proctor only thought that there had been one identification procedure, that it was the one done after Mr. Haight.

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That was with a telephone, right?

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A telephone one?

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Yes.

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And that's the one where he... Because I read it differently.

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I read the mugshot as being referred to the first.

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Was there any reason she couldn't have recalled the witness then?

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I think that was offered.

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And and she did kind of do it that and I think the problem While I don't think that meets

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the requirement of the rule because I think you're taking out some of the force of cross-examination if then you're recalling him it's not in the context of the cross-examination.

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It's sort of a separate cross-examination.

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It puts emphasis on something that really there shouldn't be emphasis on.

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So that doesn't sound like a hearsay problem.

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A hearsay problem is resolved by 801 and the availability.

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This sounds like a different problem.

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government's failure under Rule 16, surprise, or something like that.

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But that's not the argument you're making here.

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You're making a, this is hearsay, an admissible hearsay argument.

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That one seems to be conquered by the fact that witnesses available, and as you point out, remained available even if it wasn't in as good a posture.

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Well, I don't think the rules of evidence say, okay, well, you can do something after the government has done this, but then it makes it admissible.

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The rule is that the witness is available and has been cross-examined about it, and then you can seek to admit this other evidence.

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It's the government making the rules about what witnesses we're going to call, what we're going to ask them about.

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And so then putting the onus on defense counsel, well, if you're going to insist on that, then we can recall the witness.

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The witness has been called.

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I don't think your position is that there in fact has to have been a cross-examination as long as

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there was an opportunity to give cross-examination.

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If somebody decided for whatever reason, tactical reasons, not to do it, I imagine that that would be enough, no?

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Well, I think that would be enough.

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I think the problem here was the witness was not confronted with it on direct, and so defense counsel... Well, so if it comes up on the cross, and just getting back to the exchange earlier about what happened on the cross, it's on supplemental appendix 295.

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And it looks like they're talking about the initial picture.

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They're initially talking about a picture.

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I think it's the one that comes from the phone.

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And the witness testifies that one right there looks cloudy.

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And then the counsel says, OK.

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And so did you say, well, could I see a different picture of the guy?

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So they're talking about a different picture.

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And then the answer is they showed me another picture.

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OK.

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They showed me his mugshot.

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So at that point, the mugshot is a different picture.

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But I think the problem is that's not necessarily referring to what the officer is claiming.

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Yes, the witness is saying, well, they showed me another picture, but since he's already said, no, he didn't show me one before, why would defense counsel think, oh, well, now he's changed his mind and now there was one before?

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Because the witness just said that there was one before.

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So doesn't that show that there was an opportunity for cross-examination with respect to earlier picture, because it specifically came up and then the defense counsel made a decision not to pursue questioning about that?

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Well, I think he says they showed me a picture.

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Maybe I'm not recalling the exact answer, but my recollection from what the court is saying

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He's not indicating that it's the earlier identification that he just on direct said didn't happen.

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He is indicating, yeah, they showed me another picture, but he's not saying it was earlier in time.

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I mean, there's plenty of time between that point and trial that they could have shown him other pictures.

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I would like to reserve some time to respond to government's argument.

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Thank you.

[00:17:25] Speaker 06:
Good morning.

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May it please the Court, Luke Jones for the United States.

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I just reserved seven minutes for my colleague to argue the cross-appeal in this case.

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As to the trial issues, this Court should affirm because the appellant has failed to meet his burden as to each of his particular claims.

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I'll start, as the appellant did, with the issue of the continuance and the allegation of ineffective assistance.

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It's clear on this record that the district court did not abuse its discretion in denying a fourth continuance.

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Turning to the ineffectiveness claim, there's no basis for remand here where appellant has failed to demonstrate any prejudice.

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And I think there's three important points.

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Why do you say that when?

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The writings were relied on by the government in the closing.

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In fact, it's the very end of the rebuttal, which suggests that it's important.

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to the government.

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It's the last thing they want to be heard.

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And they go on.

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The counsel went on at some length.

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What these writings do show you is that he possessed the drugs, the guns, the marijuana that were found in the apartment.

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It's the defendant talking about what he is accused of and doing in this very case.

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And so if the writings were not his,

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That sounds like there's prejudice, or potential prejudice.

[00:18:56] Speaker 06:
I think even if you assume best case scenario for the appellant, which is that the appellant can nullify the probative value of these writings, I think the government still wins on the prejudice prong.

[00:19:09] Speaker 06:
But setting that aside, I think the initial analysis is a point which Judge Garland mentioned, which is that it's entirely speculative that an expert would have been in, that more time given to defense would have helped.

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That's different from your prejudice point, right?

[00:19:26] Speaker 06:
Well, I think it goes to deficiency and to prejudice, because the appellant has to show real probability that the outcome would have been different.

[00:19:34] Speaker 06:
not only is it speculative that an expert would have made a difference, but it's also quite dubious in light of the evidence suggesting that these were, in fact, Appellant's writings.

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They're found in the backpacks.

[00:19:43] Speaker 04:
I think that's part of the President's prong.

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I guess it could be.

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I mean, if it's very unlikely you're going to find an expert to say this is not

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The writing the problem as always on this, which is why I don't like doing this is we don't know what the council would say about what was going on.

[00:20:03] Speaker 04:
In other words, it could be.

[00:20:04] Speaker 04:
Well, we talked to him.

[00:20:06] Speaker 04:
Well, it could be a lot of things.

[00:20:08] Speaker 04:
It could be.

[00:20:08] Speaker 04:
And so so we just guess on appeal, which is not a good thing.

[00:20:11] Speaker 06:
Well, I don't think this court needs to guess for this reason, and this court doesn't need to remand for this reason, putting aside what might have happened and assuming for purposes of argument that best-case scenario, appellant is able to get an expert that says these aren't the writings, the probative value is somehow nullified.

[00:20:29] Speaker 06:
look at the impact of the writings on the case.

[00:20:32] Speaker 06:
I think that is a losing argument.

[00:20:35] Speaker 05:
That is, the jury is presented with language which the government is implying comes from the defendant, in which the defendant says, my name is Mr. Haight.

[00:20:49] Speaker 05:
I am the biggest drug dealer in the neighborhood.

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This is my neighborhood.

[00:20:55] Speaker 05:
I'm sorry, whether you mentioned that in your closing argument or not, that seems completely destructive of the argument that I'm not a drug dealer and I don't deal drugs in the neighborhood.

[00:21:06] Speaker 05:
So your only hope is to argue that as to rely on the lack of prejudice from an argument that if she had done

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what defense counsel now claims she should have done.

[00:21:19] Speaker 05:
It wouldn't have made any difference because it wouldn't have come out differently.

[00:21:22] Speaker 05:
But I don't understand the nature of the argument that when somebody announces, I am a drug dealer, that that doesn't matter in a case involving drug dealing.

[00:21:31] Speaker 06:
Well, it apparently didn't matter to the jury who acquitted appellant on the charges with respect to the marijuana found in the backpack and the gun found at the residence share of his girlfriend.

[00:21:41] Speaker 05:
I bet you found that pretty surprising.

[00:21:43] Speaker 05:
But that doesn't mean that this didn't affect the jury.

[00:21:47] Speaker 05:
We don't have any way of knowing how this affected the jury or not.

[00:21:51] Speaker 05:
They did find him guilty of other drug dealing, right?

[00:21:54] Speaker 06:
Yes.

[00:21:55] Speaker 06:
But even if you assume the writings are quite probative in the government's favor, the court can still consider the strength of the other evidence.

[00:22:01] Speaker 06:
And if that evidence supporting the conviction with respect to the 50th Street Stash House is overwhelming,

[00:22:07] Speaker 06:
then it doesn't really matter how probative the writings were because the outcome would not have been different.

[00:22:12] Speaker 03:
So it doesn't, it's not surprising that you would have gone to that because that is the one place where you don't need to know anything about what a factual inquiry would have uncovered.

[00:22:21] Speaker 00:
Exactly.

[00:22:21] Speaker 03:
So in here, so, but let's just assume, and I know you don't agree with this, let's assume that argument doesn't carry the day.

[00:22:28] Speaker 03:
And then what we're left with is trying to decide whether

[00:22:31] Speaker 03:
to resolve this on direct appeal or whether to do what happens in other courses as it gets resolved on 2255 or something.

[00:22:38] Speaker 03:
And with respect to that, how do we know

[00:22:42] Speaker 03:
with sufficient reliability that nothing would come up in a factual hearing.

[00:22:48] Speaker 03:
The whole problem here is that we don't have any record evidence about what the council was thinking or what could have potentially happened had an inquiry as to the handwriting sample been conducted.

[00:23:01] Speaker 03:
We just don't know.

[00:23:02] Speaker 03:
I'm not necessarily saying

[00:23:04] Speaker 03:
you would lose on that basis, but it seems like the conundrum that we face when we're trying to resolve this on direct appeals, we just don't know.

[00:23:12] Speaker 06:
Well, I think the court will frequently look to the strength of the other evidence.

[00:23:19] Speaker 06:
And that would be the inquiry that would have to be made.

[00:23:22] Speaker 06:
And this court would have to determine that the strength of the other evidence was so strong that the writings, regardless of how strong they were, wouldn't have made a difference.

[00:23:29] Speaker 06:
And that would be a basis for

[00:23:31] Speaker 06:
without a remand.

[00:23:33] Speaker 06:
Here you have an informant who is familiar with the appellant, having known him for two months, met him on 12 occasions, multiple purchases of narcotics.

[00:23:43] Speaker 06:
His identification in court corroborated by his phone records and appellant's phone records.

[00:23:49] Speaker 03:
That's about the other evidence, right?

[00:23:50] Speaker 03:
Yes, precisely.

[00:23:52] Speaker 03:
If we just assume that away, and I know you don't want to, just for argument purposes, if we assume that away and we focus on let's just assume that one doesn't work,

[00:23:58] Speaker 03:
And then we're trying to figure out whether to resolve this on direct appeal or remand for a factual inquiry.

[00:24:05] Speaker 03:
Then does the idea that we don't yet know, it may be true that you could say, well, there's nothing that tells us

[00:24:13] Speaker 03:
that further analysis would have borne any fruit because, gosh, it looks like it's handwriting, so it seems totally speculative that this could have borne fruit.

[00:24:21] Speaker 03:
But that just seems – I don't – I'm not quite sure I follow that because, of course, we'd have to engage in some speculation, but that's because we don't know.

[00:24:30] Speaker 03:
And so in that situation, how do we resolve it on that basis on direct appeal rather than remanding for an inquiry to know what we now don't know?

[00:24:37] Speaker 06:
Right, I think under that hypothetical scenario, the court would be in a position where it would have to remand unless it could reach the conclusion, which I think the court would urge, which is that

[00:24:48] Speaker 06:
defense counsel's inability or decision not to obtain an expert on this particular topic, given the context of the case, simply wasn't constitutionally deficient, given the broader sort of issues in the case, the evidence to which the defense needed to focus its resources.

[00:25:10] Speaker 06:
not to repeat myself, but the speculative and dubious notion that an expert on handwriting would have helped here.

[00:25:18] Speaker 06:
So I think on that basis the court not only could reach a decision, a conclusion that the deficiency simply isn't here, even under the best case scenario, but if the court's uncomfortable

[00:25:31] Speaker 06:
speculating in that regard, I think those same factors, the speculation and the dubiousness of the claim, do weigh on the prejudice scale in addition to the overwhelming evidence of guilt with respect to the 52nd Street Stash House.

[00:25:44] Speaker 06:
And I'll repeat, I think...

[00:25:46] Speaker 06:
you know, contrary to Judge Garland's sort of inclination that the acquittal on the marijuana and the gun on the other offense are strong evidence that these writings weren't overwhelming.

[00:25:59] Speaker 06:
I mean, for the same reasons they weren't improperly introduced under Rule 403, the jury clearly wasn't wowed by these writings to the point where they were willing to convict appellant of anything, any drugs that sort of were brought before them in court.

[00:26:12] Speaker 06:
So I think that

[00:26:16] Speaker 06:
that combining that with the strength of the other evidence, the court can comfortably reach the decision that this wouldn't have made a difference, and under Strickland, this appellant simply hasn't met his initial burden that would justify a remand.

[00:26:29] Speaker 06:
If I can turn briefly to the other evidentiary issues, the district court did not abuse its discretion in introducing the out-of-court identification.

[00:26:38] Speaker 04:
I'm going to go back on that.

[00:26:39] Speaker 04:
Yes, certainly.

[00:26:40] Speaker 04:
I'm sorry.

[00:26:40] Speaker 04:
Doesn't the fact that it's a close case on certain counts

[00:26:44] Speaker 04:
The jury carefully waited just to underscore the importance of being sure.

[00:26:49] Speaker 04:
I underscore that it wasn't overwhelming.

[00:26:56] Speaker 06:
Well, I don't think so for this reason.

[00:26:59] Speaker 06:
The evidence on the 50th Street stash house was very strong.

[00:27:02] Speaker 06:
I mean, independent identifications by people, phone records corroborating it, the phone found on the windowsill, the officer's identification of Helen jumping out of the window.

[00:27:15] Speaker 06:
Contrast that with the evidence to the marijuana and the gun found on the Eastern Avenue apartment.

[00:27:20] Speaker 06:
It was relatively weak, to be sure.

[00:27:22] Speaker 06:
It was much weaker evidence.

[00:27:24] Speaker 06:
Appellant was, it was much more difficult for the government to tie him to those items, although certainly the government urged the jury to do so.

[00:27:32] Speaker 06:
But we know from that, from the jury's result, that the writings weren't so persuasive or probative that they turned the jury toward a conviction on those counts.

[00:27:43] Speaker 06:
So I think that the contrast between the two incidents and

[00:27:46] Speaker 06:
the mixed verdict speak more to the insignificance of the writings.

[00:27:50] Speaker 06:
Isn't to say they weren't probative, they were, and the government certainly emphasized that, at least in part, but here you had, you know,

[00:27:58] Speaker 06:
As the district court mentioned, it's even a surprise that the government didn't make more of these writings during the trial.

[00:28:04] Speaker 06:
Unless there's more questions on that point.

[00:28:08] Speaker 06:
Yeah, I'm sorry to interrupt.

[00:28:09] Speaker 06:
Thank you.

[00:28:10] Speaker 06:
And I do want to make sure I have enough time for my colleague to address the other points, if I may, on the identification.

[00:28:17] Speaker 05:
Can I ask you the other point being ACCA?

[00:28:19] Speaker 05:
Yes, the ACA.

[00:28:21] Speaker 05:
Let me just ask, has your other colleague already said everything she has to say about ACA?

[00:28:26] Speaker 06:
I would defer to her on that score.

[00:28:28] Speaker 06:
I think you can steal her time.

[00:28:33] Speaker 06:
Fair enough.

[00:28:34] Speaker 06:
Thank you, Your Honor.

[00:28:35] Speaker 06:
On the out-of-court identification, jumping to the punchline first, this fact was, frankly, entirely insignificant in the context of the evidence of the case, and so any error would have been harmless.

[00:28:50] Speaker 06:
Your Honor, as indicated during your questioning, there was no mystery here as to what this out-of-court identification was, having been brought up during the opening statement, during direct examination, in which it was clear the government was attempting to elicit that identification.

[00:29:12] Speaker 06:
Appellant's trial counsel was able to succeed in eliciting that when Mr. Proctor, the informant, mentioned the mugshot.

[00:29:21] Speaker 06:
Even during the objection to Officer Labue's testimony, in which he did describe the identification, trial counsel, and this is the supplemental Appendix 314, indicates to the court, the problem is Mr. Proctor has testified and said that he did not identify

[00:29:39] Speaker 06:
him, meaning appellant, from the photograph.

[00:29:41] Speaker 06:
On direct, he was asked, were you shown any photographs other than the cell phone photo?

[00:29:46] Speaker 06:
And he said, no.

[00:29:48] Speaker 06:
Trial counsel's representations throughout the case don't indicate any confusion or surprise with respect to this identification.

[00:29:56] Speaker 06:
And so for those reasons, it's clear that Mr. Proctor was available for cross-examination about the statement, whether or not trial counsel chose to do so.

[00:30:07] Speaker 06:
With respect to the admission of the writings, I would say that the district court, again, did not abuse its discretion.

[00:30:15] Speaker 06:
The writings were properly authenticated, and the district court carefully waived a 403, probative value of the writings against the danger of unfair prejudice.

[00:30:29] Speaker 06:
As this court reviews it, the District Court did not commit any grave abuse with respect to that balancing test.

[00:30:36] Speaker 06:
Again, we argued that the writings were harmless for the reasons I stated in the context of the Strickland analysis.

[00:30:42] Speaker 06:
Unless there are further questions, we'd ask the court to affirm on the trial issues.

[00:30:47] Speaker 06:
Thank you.

[00:30:50] Speaker 05:
If you have a few more words to say, Anaka, that you haven't already said, otherwise we'll just remember what you said.

[00:30:57] Speaker 01:
Thank you, Your Honor.

[00:30:59] Speaker 01:
The government maintains that a DCADW should qualify as a violent felony for purposes of the Armed Career Criminal Act.

[00:31:06] Speaker 01:
The fact that it should not change that analysis for the same reasons that the government has previously stated.

[00:31:12] Speaker 01:
And I'd like to note just a few additional points.

[00:31:15] Speaker 01:
The element requiring the use of a dangerous weapon

[00:31:17] Speaker 01:
necessarily requires the use of force.

[00:31:20] Speaker 01:
That's what this court found in Redrick.

[00:31:22] Speaker 01:
That's what other courts have routinely found.

[00:31:24] Speaker 01:
And the fact that an ADW may be slightly more likely to be committed by way of poisoning than a robbery does not change that analysis.

[00:31:33] Speaker 01:
If the poison is used in a way that is likely to produce death or great bodily injury, violent force has been used.

[00:31:40] Speaker 01:
As Castleman instructed, it's not the act of sprinkling the poison.

[00:31:44] Speaker 01:
It is the act of employing the poison as a device to cause that harm.

[00:31:49] Speaker 01:
And that is the conclusion that many circuits have reached, and we believe is the proper analysis here.

[00:31:55] Speaker 01:
To conclude otherwise would exclude, as this court recognized, shooting someone with a gun, because the act is simply the twitch of the finger that's required to pull the trigger.

[00:32:06] Speaker 01:
One additional point on the recklessness piece.

[00:32:09] Speaker 01:
Powell is being talked about as a case that is a reckless driving ADW, and I think that that's an unfair characterization of what is required to commit an ADW by way of using a car as a dangerous weapon.

[00:32:23] Speaker 01:
Powell was much more than reckless driving.

[00:32:25] Speaker 01:
It's driving the car in a manner where it is likely to produce death or serious bodily injury.

[00:32:32] Speaker 01:
It was in that case driving at 90 miles per hour through a tunnel failing to slow down as the police thought that the driver would when there is traffic at the outside of the tunnel stuff and plowing the car into the back of what is an occupied car, a car sitting on the roadway.

[00:32:48] Speaker 01:
And that certainly involves a deliberate decision to place another in substantial risk of serious bodily injury or death as what resulted in that case.

[00:33:03] Speaker 01:
And so for all of these reasons, we believe that the judgment of the district court should be affirmed with the exception that the case should be remanded for resentencing under the Armed Career Criminal Act.

[00:33:13] Speaker 01:
And I'll reserve just a few seconds for rebuttal.

[00:33:15] Speaker 01:
Thank you.

[00:33:22] Speaker 02:
Just to pick up on the point that the court brought up, the rebuttal argument, well, going to the acquittals, I think it is not of any moment related to the writings that he was acquitted on conduct when he wasn't there.

[00:33:40] Speaker 02:
His girlfriend is seen walking out of the house with a book bag.

[00:33:44] Speaker 02:
It's in her possession.

[00:33:45] Speaker 02:
There's nothing about the marijuana that points that it must be Mr. Hayes.

[00:33:50] Speaker 02:
The issue is the writings are essentially a confession.

[00:33:54] Speaker 02:
If it's Mr. Haight, it's a confession about drug dealing.

[00:33:58] Speaker 02:
It's not specific to what's found in the house or found in the book bag.

[00:34:02] Speaker 02:
And clearly, the jury could be thinking, well, he's not there.

[00:34:06] Speaker 02:
There's someone else that lives there.

[00:34:08] Speaker 02:
There's someone else that actually has put the stuff in the bag and is carrying it out of the house.

[00:34:15] Speaker 02:
The jury could clearly be thinking well, we don't know that it's that it's not hers the clearly the the argument in rebuttal went to the conspiracy that he was charged with and the alleged drug operations on 50th Street and I think

[00:34:39] Speaker 02:
It's telling that the government brought this up in rebuttal.

[00:34:43] Speaker 02:
It's telling that they didn't decide, oh, we don't need that.

[00:34:47] Speaker 02:
If the case was overwhelming, they wouldn't need that.

[00:34:51] Speaker 02:
If they had solid identification by the witnesses, they wouldn't need that.

[00:34:56] Speaker 02:
The fact is, none of the identifications were perfect.

[00:35:00] Speaker 02:
All of the witnesses, at some point or another,

[00:35:04] Speaker 02:
didn't, there was a problem.

[00:35:08] Speaker 02:
The proctor couldn't identify him, and Officer Labu even sort of was sarcastic with him about his almost non-identification from the phone.

[00:35:23] Speaker 02:
The police officer was only 90% sure.

[00:35:26] Speaker 02:
The description that he gave of the person suspected to be Mr. Haight on that day was different than the person in the apartment.

[00:35:34] Speaker 02:
And the person in the apartment very clearly that night said, that's not Boo, that person doesn't sell drugs out of this apartment.

[00:35:42] Speaker 02:
So I don't think it's an overwhelming case.

[00:35:44] Speaker 02:
I do think that the evidence, prejudice, Mr. Haight, and for the reasons stated today and in the brief,

[00:35:54] Speaker 02:
I do think the court should, at the least, remand for a hearing on the proffered expert testimony.

[00:36:07] Speaker 02:
As to the ADW, clearly, the response to the government's first argument today, I think, meets, in our pleadings,

[00:36:20] Speaker 02:
as to why ADW does not meet the definition.

[00:36:25] Speaker 02:
There's no violent force required under the D.C.

[00:36:28] Speaker 02:
statute, and given the reckless intent, the mere reckless intent that's required, as indicated by the cases of Vines and Powell,

[00:36:40] Speaker 02:
We think that the court below made the correct decision in finding that Mr. Haight and his prior convictions do not meet the definition under ACCA.

[00:36:52] Speaker 05:
Thank you very much.

[00:36:56] Speaker 05:
I can't remember with appeals and cross appeals.

[00:36:59] Speaker 05:
Do we have another statement here?

[00:37:01] Speaker 01:
In terms of the governance rebuttal, unless there are further questions on the ADW issue.

[00:37:07] Speaker 05:
All right, we'll take this under submission.

[00:37:09] Speaker 05:
Thank you all.

[00:37:09] Speaker 05:
Thanks, everybody, for addressing the awkward questions.