[00:00:01] Speaker 04:
Case number 18-3053, United States of America versus Ryan Eric Lark.

[00:00:09] Speaker 04:
Mr. Kramer for the appellant, Ms.

[00:00:11] Speaker 04:
Gabrielle.

[00:00:12] Speaker 03:
Good morning, Mr. Kramer.

[00:00:15] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:00:17] Speaker 03:
Let me stop you one minute and just say I'd like to put on the record that this is the first time I've

[00:00:24] Speaker 03:
been able to sit with our newest member, Judge Rao, and I'd like to welcome her on board and put on the record that I'm delighted to be sitting with her.

[00:00:33] Speaker 03:
So go ahead.

[00:00:34] Speaker 01:
And my first argument, and I'm delighted to be arguing with her.

[00:00:39] Speaker 01:
In deciding whether unarmed bank robbery is a crime of violence under the residual clause of the guidelines, there is at least one thing on which the parties agree, and that is that you take the least culpable conduct, which in this case is intimidation.

[00:00:56] Speaker 01:
and intimidation and part of the least culpable conduct of intimidation is there was a case argued last week that I believe Judge Henderson was on the panel about bank robbery and the vast majority of bank robberies are committed by notes that are handed to the tellers and even a

[00:01:16] Speaker 01:
polite or a very courteous note to a teller is considered intimidation in the bank robbery context, such as there's an example in our brief of a person who said, I need money, hundreds and fifties, and didn't even say it was a robbery.

[00:01:35] Speaker 01:
There's examples of polite notes that said, such as, please give me all your hundreds and fifties.

[00:01:43] Speaker 01:
And that is not in that, I believe, is negligent conduct of what constitutes intimidation.

[00:01:54] Speaker 02:
A reasonable person... How was the jury charged in these cases?

[00:01:59] Speaker 02:
Because it seems to me under Judge Bates' opinion, the jury has to be charged if there's

[00:02:07] Speaker 02:
subjective knowledge on the part of the accused that the action will make a reasonable teller feel threatened with violence.

[00:02:22] Speaker 02:
And so the way you're talking about these, they sound as if a jury would not

[00:02:29] Speaker 02:
perhaps even could not convict on the basis of your hypos, or I guess actual facts.

[00:02:36] Speaker 01:
Well, I think it's not a subjective test at all under Carter.

[00:02:41] Speaker 01:
I think it's an objective test, both the reasonable teller, whether the reasonable person would be... Well, that's an objective test.

[00:02:50] Speaker 01:
The court said in Carter that it's a general intent crime, not a specific intent crime.

[00:02:57] Speaker 01:
All you have to know is the actus reus, which seems to me to indicate that it's an objective test there as well.

[00:03:05] Speaker 01:
And I think jury instructions vary, to be honest with you.

[00:03:11] Speaker 01:
There was the case that's cited in our brief about the person who handed the note.

[00:03:16] Speaker 01:
That case pleaded guilty, so there was no instruction in that case.

[00:03:22] Speaker 01:
I think jury instructions vary, and it depends what the defendant asks for, frankly.

[00:03:27] Speaker 01:
I don't think there is a, so to speak, pattern jury instruction about that.

[00:03:32] Speaker 01:
But if the jury could well have been instructed that the defendant had to

[00:03:36] Speaker 01:
know that his actions were intimidating.

[00:03:40] Speaker 01:
But that's not a requirement, I don't think.

[00:03:44] Speaker 01:
Anyhow, the government doesn't cite any... Is there some case that Judge Bates is misciting?

[00:03:51] Speaker 01:
I think that he's not misciting as much as he's taking the leap that because Carter says that it's, well, Carter says it's a general intent crime, so you have to know that force and violence, that the money was taken.

[00:04:08] Speaker 01:
First of all, you have to know that the money was taken.

[00:04:10] Speaker 01:
That's pretty easy, I think, in most cases.

[00:04:12] Speaker 01:
But then by force,

[00:04:15] Speaker 01:
the general intent goes to the forced violence and intimidation as well.

[00:04:19] Speaker 01:
And that's not a specific intent of knowing what intimidation is, I think.

[00:04:24] Speaker 01:
I think Judge Bates made the leap from the language in Carter to the fact that the defendant had to know.

[00:04:33] Speaker 01:
I think when the Supreme Court said in Carter that all the defendant had to know was the actus reus, I think that that means that all the defendant had to know

[00:04:42] Speaker 01:
was that they went up there, did some acts, such as handing a note in the vast majority of cases, and that the money then was taken from lies.

[00:04:53] Speaker 01:
I understand Carter to be saying.

[00:04:55] Speaker 01:
Otherwise, I think the Supreme Court would have said specific intent that the defendant knew they were using intimidation.

[00:05:03] Speaker 02:
I'm just looking at the part of Judge Bates' opinion at page 280, which was almost every

[00:05:10] Speaker 02:
The court that has considered this argument is rejected and points to a number of cases.

[00:05:14] Speaker 02:
Relying on Carter, these cases conclude that 2113A requires the government to prove not only that the defendant engaged in an objectively intimidating conduct, but also that he knew that his actions were objectively intimidating.

[00:05:34] Speaker 01:
I think he cites three cases in the federal appendix for that, or two cases in the federal appendix, or one in Fed 3rd and two in the federal appendix.

[00:05:48] Speaker 01:
But that, in my mind, is a misreading of Carter in the sense of when Carter says the person has to know the actus reus, what they did was they have to know that they handed a note.

[00:06:01] Speaker 01:
There is a case that came up where a person actually stood there with a blank note.

[00:06:07] Speaker 01:
The theory was, as I understand it, that the person showed the wrong side of the note to the teller, and that was held to be bank robbery because it intimidated the teller.

[00:06:19] Speaker 01:
And I think that it's pretty simple in the sense of bank tellers are taught not to

[00:06:25] Speaker 01:
in the slightest sense to give the money over.

[00:06:29] Speaker 01:
By the way, Judge Williams, the government cites no case about the jury instructions in bank robbery cases about the intimidate, about whether it's subjective or objective.

[00:06:40] Speaker 01:
Tellers are taught to hand the money over, so at the slightest note, somebody could say, please give me all your 10s and 20s.

[00:06:47] Speaker 01:
And I think that bank tellers

[00:06:49] Speaker 01:
They're taught to give them money in that sense rather than to have any chance of resistance.

[00:06:54] Speaker 01:
And it could be that's a negligence standard for somebody who maybe could not speak.

[00:07:00] Speaker 01:
I think it came up in oral argument last week about if somebody had laryngitis and they handed a note and said, please give me 10s and 20s, then they had an account there.

[00:07:09] Speaker 01:
But they didn't say that in the note and the teller handed it over.

[00:07:12] Speaker 01:
Would that be bank robbery?

[00:07:14] Speaker 01:
And under the government's theory, it would.

[00:07:17] Speaker 01:
So I think that it can be committed by negligence.

[00:07:23] Speaker 01:
And if it can be committed by negligence, it cannot come under the residual clause.

[00:07:29] Speaker 01:
Sorry.

[00:07:30] Speaker 02:
If this court were to affirm

[00:07:35] Speaker 02:
Would that not involve a circuit holding that 2113A does require subjective knowledge that the act will intimidate?

[00:07:48] Speaker 01:
Yes.

[00:07:50] Speaker 01:
And I think there is no case law one way or the other in this.

[00:07:53] Speaker 01:
That's what I gather from Judge Bates' opinion.

[00:07:56] Speaker 01:
And yes, that would definitely be a holding that it requires subjective knowledge, yes.

[00:08:01] Speaker 04:
Wouldn't that create a circuit split?

[00:08:05] Speaker 04:
a pretty well cited one?

[00:08:07] Speaker 01:
There are these three, two from the Fed Appendix and one other circuit that talk about subjective, so I think it would...

[00:08:17] Speaker 01:
not create a circuit split.

[00:08:20] Speaker 01:
According to Judge Bates, every court that is considered, but he cites just three cases, two from Fed Appendix and one from Fed Third, that he knew his actions were intimidating.

[00:08:33] Speaker 01:
So I think it would not create a circuit split to say that it's subjective.

[00:08:39] Speaker 01:
These three other circuits have held that it's subjective.

[00:08:45] Speaker 03:
Mr. Kramer, I want to take your time and we'll give you some time in response.

[00:08:48] Speaker 03:
Thank you.

[00:08:49] Speaker 03:
I want to ask you about your opinion of a scenario that is not a hypothetical, it actually happened, and ask you about whether it would fit our bank robbery statute.

[00:09:07] Speaker 03:
The MO of the bank robber

[00:09:11] Speaker 03:
was to pick out a young teller, follow her home for a couple of days, find out where her little girl went to daycare, and then went to the bank and had a little two-way radio and said, my confederate is at the Happy Days Daycare Center.

[00:09:33] Speaker 03:
That's all he said.

[00:09:34] Speaker 03:
Would that fit?

[00:09:37] Speaker 01:
With no demand for money or no note or anything, I think not.

[00:09:41] Speaker 03:
Well, obviously, I don't remember what he said.

[00:09:44] Speaker 01:
I guess he handed a note.

[00:09:45] Speaker 01:
I think that would probably fit because I think that would come under knowing, but from a reasonable person's standpoint, knowing intimidation and the fact that you've made this effort and you have while you're in the bank handing a note for money.

[00:10:01] Speaker 01:
you're intimidating the teller by showing that you know where her daughter is.

[00:10:09] Speaker 01:
So I don't think I would quibble with that one.

[00:10:11] Speaker 03:
Well, my question was really directed at the threat of violence.

[00:10:15] Speaker 01:
Well, that's a different, I'm sorry, that's a different part of the statute.

[00:10:21] Speaker 01:
It's an indivisible statute, but that's a different prong, let me put it that way.

[00:10:27] Speaker 01:
So I don't know if it would come within the violence prong, but it seems to me it would come within the intimidation prong.

[00:10:34] Speaker 01:
It's a threat.

[00:10:39] Speaker 03:
I mean, the intimidation includes a threat to use violent force.

[00:10:43] Speaker 03:
So I'm asking you whether that, and if you want time to think about it, that's fine.

[00:10:51] Speaker 03:
I'm just wondering about your opinion, and then I'll ask your colleague the same question.

[00:10:59] Speaker 01:
Intimidation, right, means a threat of violence or fear.

[00:11:06] Speaker 01:
And so I think that, I'm sorry, by force or violence, by force.

[00:11:13] Speaker 01:
that an intimidation means the fear of force of violence and I think that by, I have to say even I think that by handing a demand note and then showing that you know where the teller's daughter is, I don't think I would argue that that comes outside of the purview of the

[00:11:30] Speaker 01:
statute.

[00:11:31] Speaker 01:
Which leads me though to another thing.

[00:11:33] Speaker 01:
There's a problem here too about intimidation about how somebody looks and we give the examples and Judge Bates even gave an example of someone who comes up to the, it could be a person who's very slight and goes up there and hands a note and they may think that's a customer as somebody much larger could be intimidating to the teller but that's not

[00:11:58] Speaker 01:
the person doesn't think they're intimidating when they're like that.

[00:12:02] Speaker 01:
So I think that may be the difference between subjective and objective too.

[00:12:08] Speaker 01:
Thank you.

[00:12:17] Speaker 00:
Good morning.

[00:12:18] Speaker 00:
May it please the court, Elizabeth Gabriel on behalf of the United States.

[00:12:21] Speaker 00:
The district court here correctly found, as every circuit has, that federal bank robbery qualifies as a crime of violence.

[00:12:29] Speaker 00:
Bank robbery requires both the mens rea as well as the level of force required under the Queer Offender Guideline.

[00:12:37] Speaker 00:
Bank robbery requires knowledge, as Carter has held, knowledge not only as to the taking of the money, but as to the acts of intimidation themselves.

[00:12:48] Speaker 00:
Although intimidation is measured from an objective viewpoint, the government still must prove that the defendant has knowledge that his acts are intimidating to a reasonable person.

[00:12:59] Speaker 00:
So the statute does not encompass mere negligence.

[00:13:03] Speaker 00:
There has to be proof of knowledge.

[00:13:08] Speaker 00:
In addition, the level of force required is the same level of force that 4B1.2 requires.

[00:13:15] Speaker 00:
It has to be a threat of physical force, and that is what all of the circuits that have considered this question have held, that it is the threat of violent physical force.

[00:13:29] Speaker 00:
there simply is no question that the weight of authority is such that bank robbery is a crime of violence under the Elements Clause of 4B1.2.

[00:13:41] Speaker 04:
Does the meaning of intimidation, sort of the plain meaning, the dictionary meaning, include a threat of violence or force?

[00:13:48] Speaker 04:
I mean, I've looked at a lot of dictionaries and it doesn't seem to encompass that necessarily.

[00:13:54] Speaker 00:
I'll be honest, I have not looked at the dictionary definition because it seems pretty clear from the authorities from other circuits that intimidation has been interpreted to mean a threat of physical force.

[00:14:11] Speaker 00:
I don't think there's been any disagreement on that among the circuits, so I have not

[00:14:16] Speaker 04:
Is that because of the common law background?

[00:14:19] Speaker 04:
I'm sorry.

[00:14:20] Speaker 04:
Is that because of the common law understanding of the meaning of the word intimidation?

[00:14:24] Speaker 00:
I think so.

[00:14:24] Speaker 00:
The common law meaning to instill fear, to put in fear of bodily harm.

[00:14:29] Speaker 00:
And that is exactly what a threat of physical force requires.

[00:14:37] Speaker 00:
Are there any other questions?

[00:14:38] Speaker 00:
What about my scenario?

[00:14:40] Speaker ?:
OK.

[00:14:40] Speaker 00:
I think in your scenario I would agree with Mr. Kramer that that clearly would be intimidation.

[00:14:47] Speaker 00:
A person who approaches a teller demands money and indicates to the teller that he knows where her child, young child is.

[00:15:00] Speaker 00:
I think it's clearly to a reasonable person a threat of force against that person's child.

[00:15:08] Speaker 00:
So I think it clearly would fall within the statute.

[00:15:11] Speaker 03:
That seems to me that if it falls within the statute, if a bank robber goes up to a teller and says, doesn't say anything about a threat of force to the teller, but tells all the customers, get down on the floor, that's intimidation of the teller.

[00:15:33] Speaker 00:
Yes, I think it's intimidating if the teller views.

[00:15:36] Speaker 03:
What I'm asking is the intimidation to use

[00:15:40] Speaker 03:
force, violent force, against someone else, not the teller.

[00:15:44] Speaker 00:
I think that the statute encompasses that.

[00:15:47] Speaker 00:
I think it's a threat of force to the person of another, whether it's the teller or somebody else.

[00:15:55] Speaker 00:
I don't think it matters.

[00:15:56] Speaker 00:
As long as it's to somebody else, I think that that qualifies under the statute as intimidation.

[00:16:04] Speaker 03:
And how do you differentiate?

[00:16:07] Speaker 03:
I guess it's a different type of threat.

[00:16:10] Speaker 03:
The cases that say poisoning with lye or sulfuric acid, I think maybe Judge Bates used those, were too indirect.

[00:16:21] Speaker 00:
Well, I think Castleman has rejected any notion that that is not a use of force or a threatened use of force.

[00:16:30] Speaker 00:
Simply because it's indirect doesn't mean that it's not force.

[00:16:33] Speaker 00:
It's just a different application of force.

[00:16:36] Speaker 00:
So I think it's pretty clear under the Supreme Court's precedence that that is not a case of no use of force.

[00:16:44] Speaker 00:
It's just a different kind of use of force.

[00:16:49] Speaker 03:
Thank you.

[00:16:49] Speaker 03:
Thank you.

[00:16:53] Speaker 03:
Why don't you take two minutes.

[00:16:54] Speaker 03:
Thank you.

[00:16:55] Speaker 01:
Thank you very much.

[00:16:56] Speaker 01:
I didn't want to ignore the second argument we made, which is that this threat of violent force is not required in the bank robbery statute as well.

[00:17:09] Speaker 01:
It's the second part of the argument in our brief.

[00:17:12] Speaker 01:
So I didn't want to slight that argument either.

[00:17:14] Speaker 01:
But that's all I have to add to that.

[00:17:17] Speaker 01:
Thank you.

[00:17:17] Speaker 01:
Thank you.