[00:00:00] Speaker 00:
Case number 16-3109, Ed Al.

[00:00:03] Speaker 00:
United States of America versus Brian Burwell, also known as Bush of Belen.

[00:00:08] Speaker 00:
Ms.

[00:00:08] Speaker 00:
Millian for the Belen, Aaron Kirkens.

[00:00:10] Speaker 00:
Mr. Smith for the Belen, Brian Burwell.

[00:00:13] Speaker 00:
Mr. Cahill for the Appellee.

[00:00:16] Speaker 02:
Good morning, counsel.

[00:00:17] Speaker 02:
Ms.

[00:00:18] Speaker 02:
Millian, please proceed when you're ready.

[00:00:22] Speaker 07:
Good morning, Your Honors.

[00:00:23] Speaker 07:
Courtney Millian on behalf of Mr. Kirkens, and I'd like to reserve two minutes for rebuttal.

[00:00:30] Speaker 07:
Divisible statutes are rare.

[00:00:33] Speaker 07:
The Supreme Court's precedent tells us this, and so does this circuit's precedent.

[00:00:37] Speaker 07:
The first paragraph of 18 U.S.C.

[00:00:40] Speaker 07:
2113 is not one of those rare divisible statutes.

[00:00:44] Speaker 07:
And we know this for four reasons.

[00:00:47] Speaker 07:
First, the text and structure of the statute.

[00:00:50] Speaker 07:
Second, the legislative history.

[00:00:52] Speaker 07:
Third, case law.

[00:00:53] Speaker 07:
And fourth, the government's own charging decisions.

[00:00:56] Speaker 07:
I want to focus on the first two points, but I welcome questions on all of them.

[00:01:01] Speaker 07:
The text and structure of the statute here demonstrate that this is indivisible, that taking by force, intimidation, and by extortion are means rather than elements.

[00:01:16] Speaker 07:
We know this because extortion was inserted into a single paragraph of this statute next to the taking by intimidation,

[00:01:25] Speaker 07:
and taking by force.

[00:01:27] Speaker 07:
These also have the same object, and if you zoom out and look at the statute as a whole, it confirms what this insertion suggests, which is that Congress intended to group like with like and put in separate paragraphs different offenses.

[00:01:43] Speaker 02:
Can I ask you, so this, it's an interesting kind of geometric puzzle this statute presents, and suppose that instead of

[00:01:55] Speaker 02:
adding by extortion in the way that you just recounted from the history, you just alluded to from the history.

[00:02:01] Speaker 02:
What Congress did is to do exactly the same thing in terms of the words, but it just repeated all the words that apply both to force and to extortion in a new paragraph.

[00:02:13] Speaker 02:
So right now, the way the provision is structured is you have 2113A, which consists of two paragraphs, one of which has

[00:02:21] Speaker 02:
the forced part and the extortion part, and the other which has burglary.

[00:02:26] Speaker 02:
But let's just suppose what Congress did is instead of putting extortion in that first paragraph, it decided to have a next paragraph that did whoever obtains or attempts to obtain by extortion any property or money, et cetera, et cetera.

[00:02:43] Speaker 02:
which would do exactly the same thing in terms of the offense.

[00:02:47] Speaker 02:
It would codify the same prohibition, it would have the same effect in the real world on primary conduct, and they put it in a separate paragraph like the burglary paragraph, then would we reach a different conclusion than the one you're urging?

[00:03:02] Speaker 07:
I think you would, Your Honor.

[00:03:02] Speaker 07:
I think that would be assigned by Congress that it intended to make this a separate offense, this to be divisible.

[00:03:09] Speaker 07:
Really?

[00:03:09] Speaker 07:
And that's an element.

[00:03:10] Speaker 08:
Even with the House report, which specifically says there is no gap in federal law, extortionate conduct,

[00:03:22] Speaker 08:
has long been prosecutable under the bank robbery 2113A.

[00:03:27] Speaker 08:
And by making it explicit, we're not changing the law.

[00:03:32] Speaker 08:
We're just clarifying.

[00:03:34] Speaker 07:
So that certainly is a point in our favor and underscores the textualist decision Congress made to put these in a single paragraph.

[00:03:41] Speaker 07:
I do think it would still possibly be a really close question, even if Congress put this in a separate paragraph, because of the legislative history you allude to.

[00:03:49] Speaker 07:
But this is not that close case, because it chose to put it in the same paragraph.

[00:03:53] Speaker 02:
It just kind of just leaves me wondering.

[00:03:55] Speaker 02:
We have to do this, and I totally understand.

[00:03:57] Speaker 02:
And it's the right way to approach the analysis for all kinds of reasons, including that Mathis tells us how to do this.

[00:04:05] Speaker 02:
It just so much turns on things like where exactly the words are put into this paragraph instead of doing a separate paragraph that does exactly the same thing in the real world.

[00:04:17] Speaker 02:
And at the end of the day,

[00:04:20] Speaker 02:
Is the most forceful point you have the way the geometry of the provision works as we look at it?

[00:04:26] Speaker 02:
Or is it that, no, if you look at actually the way this provision arose, what it was really about was trying to just treat extortion as a species of force or intimidation, force, violence, and intimidation.

[00:04:36] Speaker 02:
And when you think of it that way, you just fold it into that instead of treating it as something distinct.

[00:04:43] Speaker 07:
So I think these two work in tandem with one another, and that the textualist point is reinforced by the legislative history.

[00:04:49] Speaker 07:
That's how we do.

[00:04:51] Speaker 07:
in today's modern age, that's how we do statutory interpretation.

[00:04:54] Speaker 07:
We look at the text itself, and then we look at legislative history to see if that sheds additional light on the text.

[00:05:00] Speaker 08:
Because the textual organization seems less compelling when you look at Katala, where conspiracy is folded right in there in the same sentence, separated by nothing more than or.

[00:05:20] Speaker 08:
It's in Mathis, where early in the opinion, Justice Kagan says, suppose, for example, that the California law had prohibited the lawful entry or the unlawful entry in one sentence.

[00:05:35] Speaker 08:
One thinks in that situation, would the flowing it together in one sentence change things?

[00:05:44] Speaker 08:
And my sense is, maybe.

[00:05:47] Speaker 07:
So I think the structure of the statute

[00:05:50] Speaker 07:
Sue, I think the structure of the statute in Catala is different because it does put everything, the whole statute in a single paragraph.

[00:05:56] Speaker 07:
That's very different than the choice that Congress made here, which is to set out a bunch of different paragraphs which correspond to different offenses.

[00:06:06] Speaker 08:
Plus, I mean, I think the real emphasis that we placed in Catala is on the longstanding distinct character of conspiracy as a separate offense.

[00:06:17] Speaker 08:
Yes.

[00:06:21] Speaker 05:
Let me ask you this.

[00:06:23] Speaker 05:
Suppose a bank manager gets a call from his wife who says, a guy has a knife to my throat here in our kitchen.

[00:06:38] Speaker 05:
And he says that if you don't hand the bag full of money to a guy wearing a green coat in the bank, he's going to kill me.

[00:06:51] Speaker 05:
and the husband bank manager says, okay, fine, tell him I'll do it.

[00:06:58] Speaker 05:
And he hands a bag full of money to the guy with the green coat and he walks out.

[00:07:06] Speaker 05:
The man charged with being the man in the green coat goes to trial and he's indicted.

[00:07:14] Speaker 05:
And the indictment lists basically the whole

[00:07:18] Speaker 05:
first paragraph there of 2113A.

[00:07:23] Speaker 05:
And he asked for a unanimity instruction and says, you know, I think that the jury should have to, 12 members should have to agree whether it was force and violence or whether it was extortion.

[00:07:38] Speaker 05:
I'm the trial judge.

[00:07:40] Speaker 05:
Do I give that unanimity instruction?

[00:07:43] Speaker 07:
You do not because the statute is indivisible.

[00:07:46] Speaker 07:
because these are extortion and taking by force and violence are means rather than allies.

[00:07:53] Speaker 05:
You're a defense lawyer and you're not asking for unanimity instruction?

[00:07:57] Speaker 05:
You always ask for unanimity instruction.

[00:08:01] Speaker 07:
You do ask for a unanimity instruction.

[00:08:04] Speaker 07:
I do think under the law that that would be a losing argument here because of the textualist choices made by Congress in writing this statute.

[00:08:13] Speaker 07:
We defense lawyers ask for unanimity instructions all the time, and we often lose on them.

[00:08:17] Speaker 07:
And I think this is an instance in where we lose.

[00:08:19] Speaker 07:
I mean, you're pointing to something that is just awkward about the categorical approach for me as a member of the defense bar, which is I'm arguing and largely arguing against interest.

[00:08:31] Speaker 07:
Because for something to be indivisible, it means that in a future case, I'm not going to get a unanimity instruction.

[00:08:38] Speaker 07:
But that's just the nature of the analysis here.

[00:08:41] Speaker 07:
And I think that the statute is indivisible.

[00:08:46] Speaker 07:
And so we don't get the instruction.

[00:08:48] Speaker 02:
I guess you could say that you could have the same question about intimidation versus force and violence.

[00:08:56] Speaker 02:
Because those are posed as alternatives in this paragraph, too.

[00:09:00] Speaker 02:
And I suppose you could have the same question because a lawyer could ask for a unanimity instruction as to force as opposed to intimidation.

[00:09:11] Speaker 02:
And I assume your view that that would be denied because, but I will say it seems a little off.

[00:09:19] Speaker 02:
There's something that seems somewhat surprising about a jury that can be told

[00:09:28] Speaker 02:
You don't have to be unanimous on whether this was done by force or by extortion.

[00:09:33] Speaker 02:
As long as some of you think it was done by one or the other, it's okay.

[00:09:36] Speaker 02:
But that's where we're left under your reading of the statute.

[00:09:40] Speaker 07:
That is where we're left, and though in some sense it might seem odd, I think this is a type of choice that Congress makes all the time and that legislatures make all the time.

[00:09:48] Speaker 07:
I would point to the Supreme Court's decision in Shad, which had to do with a first degree murder statute.

[00:09:54] Speaker 07:
And in that case, it's clear that legislatures and state supreme courts across the country have concluded

[00:10:00] Speaker 07:
the jurors do not need to be unanimous as to whether it's premeditated murder or felony murder.

[00:10:05] Speaker 07:
Two things that feel very different.

[00:10:07] Speaker 07:
I would say even more different than what the government here calls bank robbery and bank extortion.

[00:10:12] Speaker 02:
That's an interesting example.

[00:10:13] Speaker 02:
So suppose the statute said whoever by murder takes or by extortion obtains

[00:10:25] Speaker 02:
Would you still say that, well, murder and extortion are means?

[00:10:30] Speaker 02:
Yes, I would.

[00:10:34] Speaker 07:
But I do think this is a much easier question than that because of the relationship between extortion and robbery and the fact that these are very close cousins of one another.

[00:10:44] Speaker 07:
And as the government's own brief points out, extortion was really created to fill a loophole in robbery.

[00:10:48] Speaker 08:
Is there a theory under which extortion could be a species of murder?

[00:10:54] Speaker 08:
Again, I think I'm very influenced by the House report, which said that there was no gap in the law.

[00:11:03] Speaker 08:
You wouldn't be able to have anything like that in the hypothetical that Chitra Srinivasan mentioned.

[00:11:10] Speaker 08:
There's no way to think about it as a different means that's a sort of more finely articulated subset of the other means.

[00:11:23] Speaker 08:
But you would say it's two different means.

[00:11:24] Speaker 08:
Yes.

[00:11:26] Speaker 02:
Because that starts to look like conspiracy and the primary offense, which we know actually are separate offenses, even if they're put together in the same clause.

[00:11:33] Speaker 02:
And if you put murder and extortion together, then I mean, I think it is the answer you gave because you said, well, this one's easier because extortion can be seen as a species of force and intimidation in a way that extortion may not be seen as that for murder.

[00:11:49] Speaker 02:
But the more we place emphasis on the geometry part of the way the statute appears, the more we have to contend with possibilities like that.

[00:11:57] Speaker 07:
I would also point out that under the unanimity decisions like SHAD,

[00:12:06] Speaker 07:
The court recognized that legislatures can put together things that are historically different, and in fact really often do, put together things that were historically considered separate offenses into a single statute, meaning to treat them as means.

[00:12:19] Speaker 07:
The court does suggest that there might be a point at which they are so very different that actually jury anonymity would be required.

[00:12:26] Speaker 07:
And it's possible in that context, I'd have to give it further thought, that we might, that substantive part of the law might step in and say, you know, no matter what Congress decided,

[00:12:36] Speaker 07:
For due process reasons, you need unanimity, because these are just so darn different.

[00:12:42] Speaker 07:
They're not the same as felony murder and premeditated murder.

[00:12:44] Speaker 07:
These are really different.

[00:12:45] Speaker 07:
And so you would need unanimity, in which case it would be an element rather than a means.

[00:12:50] Speaker 08:
What do you make of the passage in Carter versus the United States that rejects the argument that

[00:13:00] Speaker 08:
robbery in 2113A imports common law, the common law meaning of robbery, but implies that extortion in 2113A might actually have a common law defined meaning.

[00:13:18] Speaker 08:
Doesn't that make this really parallel to Katala, if that's right?

[00:13:23] Speaker 07:
I don't think that

[00:13:26] Speaker 07:
whether it imports common law defined meaning as a matter of sort of substantive law, how we define the offense, answers the question as to whether it's divisible or not.

[00:13:36] Speaker 07:
It might in a very dramatic context like conspiracy, but I don't think it necessarily does so here for the reasons I've articulated already, that Congress is completely at liberty to take what were historically different offenses and decide to make them means rather than elements.

[00:13:54] Speaker 05:
But that the means versus elements distinction, I think it can be, it's not always, I don't know that it's always easy to parse out where let's say aiding and abetting.

[00:14:24] Speaker 05:
Right.

[00:14:26] Speaker 05:
If someone in my hypo, the defendant is the driver who's waiting outside the bank and the guy with the green coat gets in the car and the defendant drives him away.

[00:14:48] Speaker 05:
He's prosecuted under 2113A, but there also has to be

[00:14:53] Speaker 05:
an allegation in the indictment under the aiding and abetting statute.

[00:14:59] Speaker 05:
It's a separate statute.

[00:15:04] Speaker 05:
But if this goes to trial, you're not going to get

[00:15:14] Speaker 05:
a unanimity instruction that says that the jury has to agree that he's either an aider and abetter or a principal because that ship sailed decades ago, right?

[00:15:28] Speaker 05:
But it's clearly two separate statutes.

[00:15:32] Speaker 05:
So is that really still indivisible?

[00:15:38] Speaker 07:
So I don't, in the context of aiding and abetting,

[00:15:42] Speaker 07:
I don't think that divisibility question is really necessary because under aiding and abetting law, you're treating the aider and abetter as a principle.

[00:15:53] Speaker 07:
We just look to the underlying conduct to decide the crime of violence question.

[00:15:58] Speaker 07:
I should say my office and I continue to argue that it should not be treated that way.

[00:16:03] Speaker 07:
It should be treated differently, but we were denied a COA on that and have universally lost that question in other circuits.

[00:16:12] Speaker 02:
Okay.

[00:16:13] Speaker 02:
Thank you.

[00:16:15] Speaker 02:
Thank you.

[00:16:15] Speaker 02:
We'll give you a little bit of time for rebuttal.

[00:16:17] Speaker 08:
I just have one more question about in the Hobbs Act, robbery and extortion are likewise mentioned in the same sentence, even in the same phrase without any separate commas in between.

[00:16:31] Speaker 08:
It just talks about whoever in any way or degree obstructs commerce by robbery or extortion or attempts or conspires to do so.

[00:16:38] Speaker 08:
And yet courts, lots of courts have held

[00:16:41] Speaker 08:
that the Hobbs Act is divisible between robbery and extortion.

[00:16:44] Speaker 08:
So why isn't that persuasive evidence that when Congress in 1986 amended 2113A, it intended the same result?

[00:16:54] Speaker 07:
Because it made a different statutory structural choice.

[00:16:57] Speaker 07:
It could have done exactly what Hobbs Act does, which is put definitions in separate statutory subsections for robbery and for extortion.

[00:17:06] Speaker 07:
It had that option on the table.

[00:17:07] Speaker 07:
It was fully aware of it, because actually, note,

[00:17:10] Speaker 07:
This was done against the backdrop of issues with the difference between prosecutions under the bank robbery statute and the Hobbs Act robbery statute.

[00:17:17] Speaker 07:
But the fact that Congress made a different statutory structural choice is meaningful and actually... Is it really different or is it just a little bit more understated?

[00:17:25] Speaker 08:
If the substantive text of the provision is similar, I mean the Hobbs Act is even less separated out,

[00:17:37] Speaker 08:
but is held to be divisible.

[00:17:41] Speaker 08:
And so the definition of extortion is, I mean, 2113A, they saw the definition of Hobbs Act, there's a common law definition, Carter says,

[00:17:51] Speaker 08:
Maybe 2113a incorporates the common law definition.

[00:17:56] Speaker 08:
So in terms of definition, there are other places to find that.

[00:18:02] Speaker 08:
But the substantive text, what I'm really focusing on is that the substantive text of criminal liability under the Hobbs Act is, if anything, less divisible than the substantive text, the relevant substantive text in 2113a.

[00:18:19] Speaker 07:
So I don't think it's less divisible, but I would also note.

[00:18:22] Speaker 07:
Because of the definition, anything else?

[00:18:25] Speaker 07:
I mean, that would be the primary argument.

[00:18:28] Speaker 07:
And because the definitions are segmented out, there's a lot more language demonstrating that Congress thought about these as two distinct things rather than inserting them together.

[00:18:40] Speaker 07:
And as you note, there's the legislative history that this.

[00:18:43] Speaker 02:
So the upshot of your position then has to be that,

[00:18:47] Speaker 02:
For some reason, Congress, for purposes of the Hobbs Act, thought that extortion and robbery are alternatives.

[00:18:54] Speaker 02:
They're on the same plane.

[00:18:55] Speaker 02:
They're alternatives.

[00:18:57] Speaker 02:
But Congress, when the same kinds of stuff happens in association with the bank, thought that extortion was a type of robbery, if we think of robbery as force, violence, and intimidation.

[00:19:10] Speaker 02:
They just didn't think of those as the same thing for some reason, because one involves a bank and the other doesn't.

[00:19:15] Speaker 07:
And I think the legislative history supports that interpretation.

[00:19:21] Speaker 02:
The legislative history, right, to the extent we can glean something from, it supports it in terms of the bank.

[00:19:26] Speaker 02:
It doesn't tell you much about why Congress would have thought that extortion is just one kind of conduct when it involves a bank, but is actually a distinct parallel kind of conduct when it doesn't involve a bank.

[00:19:42] Speaker 07:
I think if you sort of,

[00:19:46] Speaker 07:
If you're trying to decide whether Congress wants to make this means or element, the bank robbery statute is really targeted at just banks because of concerns of banks.

[00:19:57] Speaker 07:
The Hobbs Act robbery statute is much broader, and Congress had in mind lots of different things when it enacted it.

[00:20:03] Speaker 07:
Things like extortion by labor unions, and extortion by public officials in a bribery context, and a very different thing like highway robbery.

[00:20:13] Speaker 07:
Apparently at the time there were literal robberies occurring as people were entering the Holland Tunnel at gunpoint.

[00:20:19] Speaker 07:
And I think in that context, when you're dealing with so many truly disparate things in all sorts of factual circumstances, there's a real reason Congress might wanna say, you know, we need to be unanimous as to those.

[00:20:30] Speaker 07:
but not in the bank robbery context, which is just a much narrower set of factual circumstances.

[00:20:40] Speaker 05:
Is the instruction that was given in this case for bank robbery, is it in the JA?

[00:20:47] Speaker 05:
Because I see instructions for aiding and abetting

[00:20:56] Speaker 05:
but not the instruction that was given for bank robbery.

[00:21:00] Speaker 05:
Am I missing it?

[00:21:01] Speaker 05:
Do you know whether it's in there?

[00:21:03] Speaker 07:
I can't recall off the top of my head.

[00:21:05] Speaker 07:
If I sit down, I can probably give a record site for the, where you can find the whole, the transcript as a whole that has the jury instructions.

[00:21:16] Speaker 05:
The standard instruction for bank robbery, you know, from the pattern instructions,

[00:21:30] Speaker 05:
essentially treat these things as means in that it doesn't set it up as the jury having to find that the jury could find kind of one or the other of these things and it's not unless someone were to request a special unanimity instruction it doesn't appear given the standard instruction that a jury would have to

[00:21:59] Speaker 05:
be all 12 in agreement that it's force and violence versus intimidation versus extortion.

[00:22:07] Speaker 05:
Is that your understanding of like the way that the standard instruction works?

[00:22:14] Speaker ?:
Yes.

[00:22:15] Speaker 07:
And that if we, I think we don't need to get to sort of the third Mathis peak option, I think the text is quite clear.

[00:22:22] Speaker 07:
But if we were, if the court were to sort of be uncertain and we were to go to that third step looking to jury instructions and standard jury instructions is another factor the court can consider.

[00:22:36] Speaker 02:
I thought, I wasn't even sure that those two factors apply when you're not dealing with the state context.

[00:22:42] Speaker 02:
I think that was a state case and I thought what Mathis was saying is you can look at cases and you can look at instructions and things like that when it's a state offense because the federal courts don't control that.

[00:22:53] Speaker 02:
So we have to take the state impression of that as a given.

[00:22:56] Speaker 02:
It doesn't make all that much sense to do it in the federal context because pattern instructions can be wrong.

[00:23:02] Speaker 02:
what court cases say can be wrong until the Supreme Court decides.

[00:23:06] Speaker 02:
And so it didn't seem apparent to me that those next two considerations actually apply in the federal context.

[00:23:13] Speaker 07:
So across the country, circuits and including the circuit do look to those things in federal cases.

[00:23:19] Speaker 07:
The federal context?

[00:23:20] Speaker 07:
Yes.

[00:23:22] Speaker 07:
I think Your Honor hits on a good point, which is that those cases and those instructions are certainly the cases are binding on a federal court.

[00:23:32] Speaker 07:
when they come from a state court.

[00:23:34] Speaker 07:
And that's not going to be the same situation here.

[00:23:37] Speaker 07:
But that doesn't mean that these aren't sort of pieces of meaning that we sometimes look to try and understand.

[00:23:41] Speaker 02:
I mean, they can be persuasive, just like any opinion we look at in any case can be persuasive or not.

[00:23:46] Speaker 02:
It just doesn't seem like it would have nearly the weight that it would.

[00:23:50] Speaker 07:
I do think that's right.

[00:23:52] Speaker 02:
And on the instructions in this particular case, I thought it was under the impression from somewhere in the briefing, and maybe you could check over somebody else can.

[00:24:00] Speaker 02:
I thought in this case that the instruction that was given didn't mention the entire text of the statute in a focus specifically on what we were calling the robbery part, but which is force, violence, and intimidation.

[00:24:12] Speaker 02:
That doesn't necessarily mean that the statute is divisible, but it does mean that in this case, there was no need to tell the jury anything about extortion.

[00:24:25] Speaker 07:
The government certainly proceeded on a theory

[00:24:28] Speaker 07:
bank robbery by force and violence.

[00:24:30] Speaker 07:
And I apologize if my answer to your question was missing.

[00:24:33] Speaker 07:
And I thought we were talking about pattern instructions versus this specific instruction given here.

[00:24:37] Speaker 07:
And I think you're right, S2.

[00:24:40] Speaker 07:
I can double check when I sit down.

[00:24:41] Speaker 05:
Yeah, I'm not certain of that.

[00:24:42] Speaker 05:
Yeah, I believe that the indictment only mentioned force and violence.

[00:24:46] Speaker 05:
So there wouldn't have been a need necessarily in this case to instruct on that.

[00:24:51] Speaker 05:
I was just curious, though, because I didn't see the instruction.

[00:24:55] Speaker 05:
And in my mind,

[00:24:58] Speaker 05:
whatever the pattern instructions are in jury instructions are could be relevant and perhaps even dispositive because if our court said back in you know 1989 that there is no need for a unanimity instruction then I think we would be bound by that interpretation and

[00:25:28] Speaker 05:
that would be your case.

[00:25:31] Speaker 05:
And if they said you do need one, then that would be your case.

[00:25:35] Speaker 05:
It would be the government's case.

[00:25:39] Speaker 01:
Yeah, my recollection is that there was a litigation over the necessity of a unanimity.

[00:25:44] Speaker 01:
What that instruction has to include, that we don't have decisions on that as far as you know.

[00:25:51] Speaker 05:
All right, thank you.

[00:25:53] Speaker 05:
Council.

[00:26:02] Speaker 06:
Mr. Smith.

[00:26:03] Speaker 02:
Good morning.

[00:26:03] Speaker 06:
May it please the court.

[00:26:05] Speaker 06:
My name is Greg Smith, appointed counsel for Brian Burwell.

[00:26:08] Speaker 06:
And I will argue what I hope is the most simpler issue involved in this appeal, which is Mr. Burwell's Rosemont issue.

[00:26:16] Speaker 06:
Very briefly before I go to that, though, I did want to just quickly add to Courtney's argument that the rule of lenity is an added basis for a Johnson reversal here.

[00:26:26] Speaker 06:
Congress has to clearly state

[00:26:30] Speaker 06:
that it wants this additional penalty to be applied.

[00:26:33] Speaker 06:
As Judge Srinivasan just mentioned, this is basically a geometric puzzle.

[00:26:38] Speaker 06:
In a case of a geometric puzzle, it has not been clearly stated by Congress.

[00:26:43] Speaker 06:
If it seems odd to you that extortion is robbery in a bank context but not a Hobbs context, if you're struggling, that alone is enough because it's not unambiguously been written and lenity should be applied, and especially so here.

[00:27:00] Speaker 06:
when no one, literally no one, including the government, is saying that fairness and justice requires that these clients spend 15 more years in prison unnecessarily unless this statute specifically requires it.

[00:27:16] Speaker 06:
No one is saying that that extra 15 years is fair.

[00:27:20] Speaker 06:
Now, turning to Rosemont.

[00:27:21] Speaker 02:
Mr. Rhodes One thing on Lenity.

[00:27:22] Speaker 02:
I mean, I appreciate why Lenity comes into play in this case.

[00:27:27] Speaker 02:
But I wonder, you wouldn't make the same argument about lenity as between force, violence, and intimidation.

[00:27:35] Speaker 02:
In other words, even lenity principles wouldn't tell us that intimidation, violence, and force should be treated as divisible as opposed to alternate means.

[00:27:50] Speaker 06:
What I'm saying is if you don't think Congress made it clear that this is divisible versus indivisible,

[00:27:57] Speaker 06:
That alone is a basis for applying letter.

[00:28:02] Speaker 06:
I think it's the Congress's obligation to make it clear and that hasn't happened here.

[00:28:07] Speaker 06:
On Rosemont, the standard review, as the government admits, is de novo.

[00:28:12] Speaker 06:
Mr. Burwell's jury never made any findings that he personally possessed a firearm in the industrial bank and it didn't have to.

[00:28:21] Speaker 06:
Instead, this jury was allowed

[00:28:23] Speaker 06:
to convict him of Count 11 based on a mere aiding and abetting theory of liability.

[00:28:28] Speaker 06:
Aiding and abetting was a component of every key question this jury answered on Count 11.

[00:28:34] Speaker 06:
In fact, we logically know that they actually did apply an aiding and abetting analysis to at least certain parts of Count 11 because their special verdict found proven a claim that Mr. Burwell had discharged the weapon.

[00:28:50] Speaker 06:
That was aiding and abetting.

[00:28:52] Speaker 06:
No one suggested and there was no evidence of all that Mr. Burwell ever discharged any firearm himself ever.

[00:29:00] Speaker 06:
So they were clearly applying an aiding and abetting theory on the discharge question.

[00:29:06] Speaker 06:
So the only way the jury could find that proven was by applying an aiding and abetting analysis.

[00:29:11] Speaker 06:
There is no reason to think this jury applied an aiding and abetting theory only on some of the questions

[00:29:18] Speaker 06:
on count 11 special verdict form.

[00:29:20] Speaker 08:
Mr. Smith, assuming that the jury did apply an aiding and abetting theory, what's needed is that Mr. Burwell had advanced knowledge that the weapons were to be used, right?

[00:29:37] Speaker 08:
And the jury, in entering a verdict of conviction of

[00:29:42] Speaker 08:
Mr. Burwell clearly rejected Mr. Burwell's alibi defense and apparently the related DNA defense.

[00:29:51] Speaker 08:
Is that right?

[00:29:53] Speaker 08:
So he was there.

[00:29:54] Speaker 08:
There's overwhelming evidence that Mr. Burwell was part of the group that went to the Industrial Bank.

[00:30:00] Speaker 06:
Your Honor, that came from a single witness.

[00:30:02] Speaker 06:
This is a single witness case.

[00:30:04] Speaker 08:
Right.

[00:30:04] Speaker 08:
So is there any trial evidence that could have given

[00:30:10] Speaker 08:
the jury a reason to find that Burwell either wasn't there or did not know that his Confederates would be carrying guns during the industrial bank robbery?

[00:30:25] Speaker 06:
The jury never decided this.

[00:30:27] Speaker 06:
The focus was never on when, and that's the key point in Rosemont.

[00:30:33] Speaker 06:
When what?

[00:30:34] Speaker 06:
When he knew.

[00:30:36] Speaker 06:
that guns were being carried in this particular bank.

[00:30:41] Speaker 08:
Put aside for the moment.

[00:30:47] Speaker 08:
I take your answer to my last question to be preserving the notion that maybe the jury would have found that he was absent.

[00:30:56] Speaker 08:
Put that aside for the moment, assuming that the jury finding was that he was present in the group.

[00:31:08] Speaker 08:
How, and the testimony, the unrebutted testimony was that Burwell rode in the same car.

[00:31:17] Speaker 06:
Only from a single witness.

[00:31:19] Speaker 08:
Right.

[00:31:20] Speaker 08:
That's unrebutted testimony.

[00:31:22] Speaker 08:
There's no other testimony that there was a separate car.

[00:31:25] Speaker 08:
There's no suggestion that there was a separate car.

[00:31:28] Speaker 06:
but it raises questions about when did he learn that guns were being used in this robbery.

[00:31:35] Speaker 06:
We know he learned of it at the point when a shooting took place and his reaction to that was, we got to go, we got to go.

[00:31:44] Speaker 06:
Which suggests Rosemont talks about the importance of someone knowing in advance for knowledge because he needs to have an opportunity to

[00:31:55] Speaker 06:
leave withdrawal and that sort of thing and here when the only clear indication that he knows that a gun is present the shooting his reaction is to to withdraw we got to go so there is some evidence that could have been put to this jury but was not is it your contention

[00:32:19] Speaker 05:
that the jury would have to find that he had advanced knowledge that a machine gun was going to be used versus just a firearm?

[00:32:31] Speaker 06:
Your Honor, I think we are arguing both, and yes, I think that, so there are two different issues.

[00:32:40] Speaker 06:
One is the foreknowledge that a machine gun is being used, but I also want to point out this fact.

[00:32:45] Speaker 06:
If you look at the specific verdict form,

[00:32:49] Speaker 06:
The machine gun question talks about the firearm, the firearm.

[00:32:55] Speaker 06:
And it's not clear what the firearm is.

[00:32:59] Speaker 06:
The closest question asking about is the firearm, a machine gun, is the one that talks about discharging.

[00:33:08] Speaker 06:
And we know that the firearm that was used with the discharging was the two-handled one that was fired on which

[00:33:17] Speaker 06:
they found only by an aiding and abetting theory.

[00:33:20] Speaker 06:
So in other words, I guess what I would say is the machine gun enhancement is premised on a firearm that was found only by an aiding and abetting theory.

[00:33:33] Speaker 06:
An aiding and abetting theory that was tainted by Lee, Lee Arone's jury instructions.

[00:33:40] Speaker 06:
The most logical reading of this verdict form is that the firearm was referring to the machine gun that was closest in order of the questions that were being posed, which means the discharge firearm on which the only way they could find him guilty was aiding and abetting.

[00:33:59] Speaker 06:
So the machine gun enhancement is based on a firearm that was found by an aiding and abetting theory that was

[00:34:09] Speaker 06:
based on an erroneous aiding and abetting instruction.

[00:34:12] Speaker 06:
So we believe that in a minimum, you should drop the machine gun enhancement because that enhancement is premised on a firearm that was tainted by an aiding and abetting, we know was based on an, most logical view is it was based on an aiding and abetting theory that was tainted by a Rosemont deficient jury instruction.

[00:34:32] Speaker 05:
But what of the fact that our court en banc upheld the conviction

[00:34:39] Speaker 05:
and rejected an argument that he had to know that the gun was a machine gun.

[00:34:50] Speaker 06:
There are two different theories here.

[00:34:52] Speaker 06:
One is, as I said, that he had to know that it was a machine gun.

[00:34:55] Speaker 06:
It definitely addresses that issue.

[00:34:57] Speaker 06:
But this separate issue about what was the firearm that this jury found was the machine gun, here the firearm that it found

[00:35:08] Speaker 06:
If you look at the verdict form, the closest firearm being discussed in the verdict form was the discharge firearm.

[00:35:16] Speaker 06:
That is a firearm that was tainted.

[00:35:20] Speaker 06:
The finding of guilt on that firearm was only by an aiding and abetting theory.

[00:35:25] Speaker 06:
So we have a machine gun enhancement that I submit relates back to a finding on a firearm that was only found because

[00:35:35] Speaker 06:
of an aiding and venting theory that was deficient.

[00:35:37] Speaker 06:
So we think that regardless of whether he had to have foreknowledge that a firearm in general was being used, we have the problem that the jury finding here was premising the machine gun enhancement

[00:35:51] Speaker 06:
on a specific firearm on which it was a tainted, aiding and abetting theory that was used to find him guilty of the discharge firearm.

[00:36:01] Speaker 02:
Can I ask you, just so I understand the relationship between the two arguments, the divisibility argument and the Rosemont argument, I'm not, just assume for present purposes that the appellants prevail on the

[00:36:15] Speaker 02:
indivisibility, divisibility argument, then this issue is unnecessary to be reached because they do the exact same thing.

[00:36:20] Speaker 02:
I think that's right.

[00:36:22] Speaker 02:
Okay.

[00:36:23] Speaker 02:
So, um, and then on this one, suppose we went the other way.

[00:36:26] Speaker 02:
And so this one is relevant, at least to your client.

[00:36:28] Speaker 02:
Yes.

[00:36:28] Speaker 02:
Um, then we go the other way.

[00:36:30] Speaker 02:
Then there's still the cause and prejudice question, right?

[00:36:33] Speaker 02:
Because the, the air, this was not flagged at trial.

[00:36:37] Speaker 02:
And so the question becomes, do you have to show cause and prejudice in order

[00:36:41] Speaker 06:
Yes, we've raised an argument that their cause and prejudice, excuse me, their procedural default, which is the same thing, was untimely raised.

[00:36:49] Speaker 06:
I'm not going to belabor that.

[00:36:52] Speaker 06:
We don't think it was raised.

[00:36:54] Speaker 06:
We think that it was waived because it was raised more than a year later and only for the first time on appeal.

[00:36:59] Speaker 06:
But even if procedural fault does apply, I'm happy to address those issues.

[00:37:03] Speaker 06:
First is cause.

[00:37:04] Speaker 06:
Rosemont's newly established requirement of foreknowledge

[00:37:09] Speaker 06:
As we explained in our reply brief is novel and not only do we say it but the Ninth Circuit itself also said it specifically in Alfred versus Garland.

[00:37:19] Speaker 06:
It said that Rosemont is built on general principles but its application of those principles to 924 C was novel.

[00:37:27] Speaker 06:
The Ninth Circuit specifically said that it's novel.

[00:37:30] Speaker 06:
and novelty is a specific basis for cause.

[00:37:33] Speaker 06:
It was unreasonable to expect the CJA counsel to argue for knowledge either at trial or on direct appeal, especially when the government even admits that the Rosemont case, not just the Supreme Court, but the 10th Circuit brief in Rosemont raising this issue had not even been filed until a month after Mr. Burwell's appeal was over.

[00:37:56] Speaker 06:
So how are you supposed to know that this issue is out there?

[00:37:59] Speaker 08:
Well, we had a case, United States versus Powell, that this court decided in 1991, which held that, quote, for 924C liability, the accomplice must have known to a practical certainty that the principal would be carrying a gun.

[00:38:20] Speaker 08:
end quote.

[00:38:20] Speaker 08:
And I know neither party cited that, but that's a decision of our court interpreting 924c well in advance of Rosemond.

[00:38:29] Speaker 08:
And the First and Seventh Circuits had also made similar statements and decisions that predated Burwell's trial.

[00:38:37] Speaker 08:
So I mean, it doesn't have to be the Supreme Court

[00:38:41] Speaker 08:
clearing up any ambiguity in the law of other circuits to provide a basis for Burwell to have made the Rosemont argument at trial and on direct appeal.

[00:38:52] Speaker 06:
Let me say just a couple of things.

[00:38:55] Speaker 06:
First, I've seen the Powell case wasn't cited, so I'm sort of doing this off the cuff here.

[00:39:00] Speaker 06:
But a finding that you had to know that you would be carrying a gun is not necessarily the same as what Rosemont found.

[00:39:08] Speaker 08:
In advance?

[00:39:09] Speaker 06:
In advance.

[00:39:10] Speaker 08:
Would be is, I think, the tense that you use when you're saying, what is it, the future?

[00:39:16] Speaker 06:
I take your point, but it also goes further in Rosemont.

[00:39:23] Speaker 06:
It's simply not just that you had a sense that somebody would be carrying a gun.

[00:39:27] Speaker 06:
It has to be far enough in advance that you have an opportunity to withdraw.

[00:39:32] Speaker 06:
That is more specific.

[00:39:33] Speaker 08:
So on this timing, is it, in this case, if when

[00:39:38] Speaker 08:
Mr. Burwell was picked up.

[00:39:41] Speaker 08:
The guns were in the car, out evident, everyone's holding them.

[00:39:45] Speaker 08:
And someone hands him one.

[00:39:48] Speaker 08:
Is that not far enough in advance in your view?

[00:39:53] Speaker 06:
Your Honor, I think that that needs to be decided by a jury, first of all.

[00:39:59] Speaker 08:
Wait, but isn't it a legal question how far in advance is far enough?

[00:40:03] Speaker 06:
No, I think it's a factual question under Rosemont.

[00:40:06] Speaker 06:
I think it is for the jury to decide, is it far enough in advance to where there's an opportunity to withdraw?

[00:40:12] Speaker 08:
So if the jury had a, if there was special verdict and the jury found that when Burwell entered the vehicle, he was handed a gun and he saw that the others each had a gun, it would be a jury question whether that was knowing in advance.

[00:40:30] Speaker 06:
Yes.

[00:40:31] Speaker 06:
Yes, I think that's for the jury to decide.

[00:40:34] Speaker 06:
And let me just say too, the Powell case that you cite as well is not what this jury was asked.

[00:40:42] Speaker 06:
The language about you had to know in advance or you would be, you had to know that people would be carrying a gun is not what this jury was instructed.

[00:40:54] Speaker 06:
The entire focus would have changed.

[00:40:56] Speaker 06:
Here's what this jury was told.

[00:40:59] Speaker 06:
It was enough for guilt.

[00:41:01] Speaker 06:
if he simply knowingly associated or participated in a crime as something that he wished to bring about, that even mere physical presence was enough if he intended to help in the commission of the crime.

[00:41:13] Speaker 06:
And the government was not required to prove anyone discussed or agreed on the method of committing the crime.

[00:41:20] Speaker 06:
That last one is basically telling the jury the opposite of how, that it was not required to prove that anyone agreed or discussed on the method of committing the crime, that they were not told

[00:41:31] Speaker 08:
I may not have been clear in my questions.

[00:41:33] Speaker 08:
I mean, the government acknowledges that this jury instruction was inadequate.

[00:41:38] Speaker 08:
And I think that's the baseline for the argument today.

[00:41:41] Speaker 08:
And the questions really are about whether it was prejudicial given the proof.

[00:41:48] Speaker 06:
OK.

[00:41:48] Speaker 06:
I'll move to prejudice next.

[00:41:49] Speaker 06:
But on the cause question, I just want to conclude by saying this.

[00:41:54] Speaker 06:
I'm a pretty creative guy.

[00:41:56] Speaker 06:
The aiding and abetting standard instructions, which is what we're given here,

[00:42:01] Speaker 06:
which didn't incorporate PAL apparently, had been given for decades.

[00:42:06] Speaker 06:
It's a very hard standard aiding and abetting used to have under that standard instruction.

[00:42:10] Speaker 06:
It was almost impossible to win.

[00:42:12] Speaker 06:
I can tell you from arguing cases, none of us, I submit, thought that there was a foreknowledge requirement like this in total Rosemont.

[00:42:23] Speaker 06:
It was a novel, different thing, and it upended

[00:42:26] Speaker 06:
every standard instruction that I'm aware of in the federal system.

[00:42:30] Speaker 06:
Now moving to prejudice.

[00:42:34] Speaker 06:
This was a jury that spent 14 days deliberating.

[00:42:40] Speaker 06:
It asked question after question after question.

[00:42:43] Speaker 06:
So if you're looking at prejudice, and the case law on this is clear, the question is not what you think

[00:42:49] Speaker 06:
Logically, what do we think would happen if we sent it back on romance?

[00:42:53] Speaker 06:
No.

[00:42:53] Speaker 06:
The question is, would it have affected this jury at the time?

[00:43:00] Speaker 06:
Is it reasonably likely that it would have affected this jury?

[00:43:03] Speaker 06:
This was a jury that struggled over this case for 14 days.

[00:43:08] Speaker 06:
Over four weeks, past a holiday, any little thing I submit could have and would have had a potential effect on this jury's deliberations.

[00:43:19] Speaker 06:
The entire focus, as I say, would have changed if the proper jury instruction had been given.

[00:43:25] Speaker 02:
Which way does that, because it's true that any little thing, there will never have procedural default on any claim because there's always prejudice whenever a jury contemplates a serious charge for a long time.

[00:43:36] Speaker 06:
I don't think you need to make a rule of law about when it does, but thinking of this logically, you're supposed to look at what this jury would have done.

[00:43:45] Speaker 06:
Was it reasonably probable that this might have had an impact?

[00:43:49] Speaker 06:
And I think when the jury was struggling this hard over 14 days, and when you know that the entire theory and focus of the trial would have changed.

[00:44:00] Speaker 02:
Obviously, the jury can struggle a mighty long time on a tough case about things other than the issue that's being presented.

[00:44:09] Speaker 02:
I know.

[00:44:10] Speaker 06:
But I also want to point out

[00:44:14] Speaker 06:
This was basically a lay down on aiding and abetting.

[00:44:17] Speaker 06:
There was no argument at all raised on begging and abetting.

[00:44:20] Speaker 06:
Given the standard jury instructions, what are you going to argue?

[00:44:23] Speaker 06:
This would have given the defendant a chance to argue.

[00:44:26] Speaker 06:
He could have said there was no foreknowledge.

[00:44:29] Speaker 06:
He could have said he had to have an opportunity to withdraw.

[00:44:32] Speaker 06:
He could have pointed out that when the gun was fired, he suddenly said

[00:44:38] Speaker 06:
Extemporaneously, the first thing he said is, we've got to get out of here.

[00:44:42] Speaker 08:
Was there any cross-examination of Chittany on, to kind of pin down the point you're making about, it seems like it doesn't just go to foreknowledge.

[00:44:54] Speaker 08:
It goes to Burwell's general kind of equitable culpability and involvement.

[00:45:00] Speaker 08:
Was there any cross-examination about whether the guns were in the trunk when they picked up Burwell, about whether Burwell himself

[00:45:07] Speaker 08:
might not have been carrying a gun, about whether he, you know, went out of the car first and didn't see everybody else pulling them out of the trunk, or any kind of effort, because as you say, this is a one witness case.

[00:45:23] Speaker 06:
Right, which is of course another reason why I think there's prejudice not, I mean, with the 14 days, it's not just a 14 day deliberation case, this is also a one witness case.

[00:45:33] Speaker 06:
But in terms of what you're asking,

[00:45:35] Speaker 06:
That's exactly the sort of thing that would have been available to defense counsel to ask if he'd known that the Rosemont standard applied.

[00:45:44] Speaker 08:
I guess my question is, didn't he have every incentive for that kind of cross-examination in any event?

[00:45:55] Speaker 08:
And that just wasn't his defense.

[00:45:57] Speaker 06:
It wasn't because the standard aiding and abetting instruction.

[00:46:00] Speaker 06:
I can tell you from experience.

[00:46:03] Speaker 06:
arguing against aiding and abetting under the general standards before Rosemont, there wasn't anything there much to argue.

[00:46:10] Speaker 05:
Rosemont actually put teeth into aiding.

[00:46:12] Speaker 05:
But people were arguing about what intent, what was the intent requirement in aiding and abetting.

[00:46:20] Speaker 05:
I mean, I argued an aiding and abetting appeal in the D.C.

[00:46:25] Speaker 05:
Court of Appeals in 1991, where my client was an aider and abetter to first degree murder.

[00:46:34] Speaker 05:
on the government's theory, and I argued that the instruction didn't make clear that he had to have intent to kill at the time of aiding and abetting.

[00:46:49] Speaker 05:
And the government agreed, and the court said so in its opinion.

[00:46:56] Speaker 05:
So, like, despite the standard of instruction and the kind of

[00:47:01] Speaker 05:
bad law for defense lawyers, generally with aiding and abetting, people were arguing 30 plus years ago, well before this trial, that there needed to be at least, if not the same intent or knowledge as the principal, something really close to it, at least in the same ballpark.

[00:47:29] Speaker 05:
How does that affect how we look at the cause analysis?

[00:47:35] Speaker 06:
I think what the Ninth Circuit said in our Alfred versus Garland is right.

[00:47:39] Speaker 06:
It said that Rosemont was built built on general principles, but its application was novel.

[00:47:47] Speaker 06:
Talking exactly about what you say.

[00:47:48] Speaker 06:
The notion that the aider and a better had to have the same intent as the principle is a general principle that has been around.

[00:47:58] Speaker 06:
It doesn't always prevail.

[00:48:00] Speaker 06:
In fact, I would say it before Rosemont, it rarely prevailed, but Rosemont put specifics into those teeth.

[00:48:08] Speaker 06:
That's bad mixing analogies, I'm sorry.

[00:48:12] Speaker 06:
But what it gave you was specifics, not just in general, the general principles Alfred versus Garland talked about, the defendant has to have this, the aider and a better has to have the same intent as the principal.

[00:48:26] Speaker 06:
It went beyond that.

[00:48:27] Speaker 06:
It said you had to have foreknowledge, not just knowledge, but foreknowledge, an opportunity to withdraw and sufficient time to be able to withdraw.

[00:48:37] Speaker 06:
In other words, not getting into the bank with your compatriots and seeing that they have guns when withdrawal is not easy.

[00:48:44] Speaker 06:
It means you have to have foreknowledge and a reasonable opportunity to withdraw.

[00:48:48] Speaker 06:
Those are absolutely novel principles that Rosemont established.

[00:48:53] Speaker 02:
And in terms of novelty, I just, as an editorialist aside,

[00:48:56] Speaker 02:
I feel sympathy for the defense lawyer who's told that the argument should have been foreseeable because Judge Wilkins thought of it, because that's a brilliant person thinking of an argument, but still.

[00:49:08] Speaker 06:
Well, I mean, look, some creative attempts have been made, but none of them that I'm aware of before, and particularly when Rosemont didn't even raise this argument, even in the circuit court until a month after Burwell's appeal was over.

[00:49:23] Speaker 06:
I just don't think it's fair to say there's not cause

[00:49:26] Speaker 06:
for not raising it prior to or at trial or on appeal for Mr. Burwell.

[00:49:31] Speaker 02:
Can I go back to, unless there's a follow-up question, can I go back to the divisibility issue for a second on the rule of lenity?

[00:49:41] Speaker 02:
This actually picks up on something that Judge Wilkins was asking Ms.

[00:49:45] Speaker 02:
Millian earlier.

[00:49:46] Speaker 02:
I hadn't thought of this before, but

[00:49:51] Speaker 02:
If we go back to the trial stage as opposed to the stage now where we're trying to figure out how 924C works, if a defendant argues to the trial judge and then subsequently raises the issue on appeal because the argument's rejected, let's say, that this is a statute in which actually

[00:50:10] Speaker 02:
the force part and the extortion part should be treated as different because we want to make sure the jury unanimously finds either force or extortion, the kind of unanimity instruction that a defense lawyer often has the incentive to make.

[00:50:21] Speaker 02:
Does lenity kick in there?

[00:50:24] Speaker 02:
Could somebody make the argument that because of the rule of lenity, actually you should treat this statute as if

[00:50:30] Speaker 02:
it's treats these as distinct, because we should get the benefit of having unanimity as to each.

[00:50:36] Speaker 02:
And the reason I ask that is if maybe it doesn't for some reason, but if lenity does apply there, then there's something a little bit odd about saying

[00:50:44] Speaker 02:
that you get Lenity to promote that instruction at the front end, but then you get Lenity to have the opposite conclusion at the back end, because they would be working at crossroads.

[00:50:53] Speaker 02:
I'm not sure I'm following the question.

[00:50:55] Speaker 02:
It's on me.

[00:50:56] Speaker 02:
I'm sorry.

[00:50:56] Speaker 02:
No, no.

[00:50:56] Speaker 02:
I'm not asking you clearly.

[00:50:57] Speaker 06:
We're working on short sleep here.

[00:50:58] Speaker 06:
I apologize.

[00:50:59] Speaker 02:
No.

[00:50:59] Speaker 02:
Let me just ask the first part of it instead of trying to tidy it up.

[00:51:03] Speaker 02:
So I'm just asking at the front end, if you're representing somebody who is a defendant in one of these cases under the first paragraph of 2113A,

[00:51:14] Speaker 02:
And in that context, you have the incentive to say the jury should be required unanimously to find either force or extortion.

[00:51:25] Speaker 02:
They shouldn't be able to disagree on whether it's force or extortion, but just unanimously find that it's one or the other, because I think that's beneficial to defendants to have it the other way.

[00:51:35] Speaker 02:
Would Lenity kick in at that point to say, actually,

[00:51:40] Speaker 02:
It's a close call under the statute.

[00:51:42] Speaker 02:
I can't tell if unanimity is required in the way that you're arguing, but because of lenity, I'm going to agree with you.

[00:51:52] Speaker 06:
You're asking about a question that was not raised at the trial level.

[00:51:56] Speaker 06:
Yeah.

[00:51:56] Speaker 06:
Could you have argued lenity on top of, as a basis for your unanimity request?

[00:52:07] Speaker 06:
Right.

[00:52:08] Speaker 06:
I guess my sense and I'm sort of stepping on my colleagues getting into this.

[00:52:15] Speaker 06:
I think these were.

[00:52:18] Speaker 06:
treated as means of the same and I don't know that I mean you're you're basically saying could you argue that to the district judge that they're not means because it's not clearly been stated that they're simply separate means.

[00:52:32] Speaker 02:
And then on appeal could you make that argument and I guess my point at the end of the day then is if you could make that argument for Lenity reasons maybe you can't but if you could then there's something a little bit intention about saying at that point Lenity supports divisibility but then now we should say Lenity

[00:52:49] Speaker 02:
rejects divisibility.

[00:52:51] Speaker 02:
I just wonder what work Lenity can do at the end of the day if we're actually seeing it as potentially helping and hurting depending on where you are.

[00:52:58] Speaker 06:
I guess what I would say on that is this.

[00:53:01] Speaker 06:
You're saying if you argue there, you can't argue it later.

[00:53:03] Speaker 06:
My view of Lenity is it doesn't have to be the same answer.

[00:53:09] Speaker 06:
In other words, Lenity can support one interpretation on one issue and the other interpretation of the same issue depending on the consequences.

[00:53:18] Speaker 08:
Can it?

[00:53:19] Speaker 08:
I mean, so I was having the same thought only in a much less case-specific way than to Judge Trinivasan's question.

[00:53:27] Speaker 08:
If we apply rule of lenity to a statute because it's not clear, aren't we interpreting that statute in a way that then has precedential force?

[00:53:41] Speaker 08:
And given that, as Miss Millian was saying when she stood up and

[00:53:46] Speaker 08:
Judge Wilkins was saying as a defense lawyer, you're saying this, that your argument, if you prevail, will deprive you in other cases of the ability to request a unanimity instruction as to these different offenses because they will now be seen as means.

[00:54:06] Speaker 08:
And so given that this issue is sort of bivalent with respect to the lenience that a defendant is owed,

[00:54:16] Speaker 08:
Does that mean that Lenity is inapplicable?

[00:54:21] Speaker 06:
I don't think Lenity is ever inapplicable if there is ambiguity, but let me just say this.

[00:54:29] Speaker 08:
For example- The ambiguity here, I mean, I don't need to belabor it.

[00:54:33] Speaker 06:
Yeah, no, okay.

[00:54:34] Speaker 06:
So we're arguing extortion is part of bank robbery, a form of bank robbery.

[00:54:44] Speaker 06:
And that may mean that there's certain people, if you're looking only at 2113, that could be found guilty under 2013 that otherwise might not.

[00:54:54] Speaker 06:
So you're broadening the scope of who is liable.

[00:54:58] Speaker 06:
But on the 924C side, you're narrowing the people who are eligible, because if extortion is included, they're not eligible here.

[00:55:07] Speaker 06:
And so the question is, do we have to have the same decision on both?

[00:55:10] Speaker 06:
And my answer is no, because lenity

[00:55:13] Speaker 06:
works to the benefit of the defendant in both cases.

[00:55:18] Speaker 02:
But how can it?

[00:55:18] Speaker 02:
Because then you'd be construing the same language to do two different things.

[00:55:21] Speaker 06:
I mean, we have to- Because all you're really finding is that Congress didn't make it clear.

[00:55:28] Speaker 06:
If Congress doesn't make it clear, then if you're charged with a 2113 extortion only,

[00:55:36] Speaker 02:
The lenity works in your favor.

[00:55:38] Speaker 02:
But we're finding more than the Congress didn't make it clear, because saying that Congress didn't make it clear is just the predicate to our then deciding which way the statute is to be construed.

[00:55:46] Speaker 02:
And it would be odd if, suppose there were a decision already that said, because of lenity principles at the front end, the way to read the first paragraph of 2113A is that extortion and force are not different means.

[00:56:00] Speaker 02:
They're actually different offenses, because then the defendant gets the benefit of a unanimity instruction.

[00:56:05] Speaker 02:
then at that point I don't think you could have an argument at this stage that actually for this person, lenity should mean that the statute actually treats these as different means and therefore 924C can't be applied.

[00:56:19] Speaker 06:
I guess what I would say is this.

[00:56:23] Speaker 06:
I don't think you need to definitively make a decision on how the statute is written in order to apply lenity.

[00:56:32] Speaker 06:
In fact, quite the opposite.

[00:56:35] Speaker 06:
Lenity is in place to encourage and force Congress to be clear about what its language means.

[00:56:45] Speaker 06:
All you need to find is that the statute as written is unclear.

[00:56:49] Speaker 06:
You don't need to go further and say we definitively find that it's A versus B. It can be A if it works to the client's benefit in one situation and B if it works to the client's benefit in another situation because

[00:57:05] Speaker 06:
It's on Congress.

[00:57:06] Speaker 06:
It's not on you to decide what this means when Congress has written it inappropriately and the law of lenity is that the defendant gets the tie.

[00:57:16] Speaker 06:
If you're not clear, if Congress hasn't written it clearly, that's on them and the defendant should not have to spend 15 years in prison

[00:57:26] Speaker 06:
When the Congress, when the law has not been written clearly in my case, and in a 2113 case, maybe it means somebody charged with extortion as robbery doesn't get charged either, but there's not an inherent inconsistency.

[00:57:42] Speaker 06:
You don't have to try to decide

[00:57:45] Speaker 06:
what this ambiguous statute means definitively.

[00:57:48] Speaker 06:
In fact, you shouldn't.

[00:57:49] Speaker 06:
If it's ambiguous, you don't need to decide that.

[00:57:53] Speaker 06:
All you need to decide is it's ambiguous, sufficiently ambiguous to where the defendant gets the tie.

[00:57:59] Speaker 06:
All right, thank you.

[00:58:02] Speaker 02:
Thank you very much.

[00:58:02] Speaker 02:
We'll hear from the government now.

[00:58:11] Speaker 03:
Mr. Cahill.

[00:58:12] Speaker 03:
Yes, your honor.

[00:58:13] Speaker 03:
Timothy Cahill for the United States.

[00:58:15] Speaker 03:
I'd like to begin by addressing the Johnson claims.

[00:58:19] Speaker 03:
As every court of appeals to address the issue has found, 2113 is divisible as to robbery and extortion.

[00:58:25] Speaker 03:
To the extent that there is any ambiguity on the face of the statute, this interpretation is confirmed by the history not only of this legislation, but longstanding historical recognition that these are separate offenses.

[00:58:36] Speaker 03:
I would say in that respect, this case is very similar to this court's decision in Catala, where this court found that where a statute encompassed two different types of crimes, in that case it was conspiracy and a substantive crime, that the law has long treated as distinct defenses and there was no reason to think that Congress had departed from that settled principle, they were viewed as divisible within that statute.

[00:58:58] Speaker 03:
Even when there were fewer syntactical and structural differences,

[00:59:03] Speaker 03:
in the statute of issue there, section 1363, than there are here.

[00:59:07] Speaker 03:
And I would push back, especially on Appellant Perkins' argument

[00:59:11] Speaker 03:
about when Congress, when any legislative body, frankly, combines historically distinct offenses into one statute.

[00:59:18] Speaker 03:
In all of the authorities that Appellant Perkins cites in support of the idea that when a legislative body does that, they should be presumed to be grouping those distinct offenses into one statute, there were specific things that courts relied upon to find that they should depart from the historical precedent of treating them separately.

[00:59:37] Speaker 03:
And I would point specifically

[00:59:38] Speaker 03:
to the Cintron case from the 11th Circuit and the Hummel case from the state of Utah that Appellant Perkins relies on.

[00:59:45] Speaker 03:
In both of those cases, legislative bodies passed laws that expressly identified offenses that had historically been treated as distinct and said in the statute, in the language of the statute, that they were being combined into a single offense.

[01:00:01] Speaker 02:
But what's wrong with the, it doesn't seem to me to be an inexorable truth

[01:00:07] Speaker 02:
that extortion can't be considered a species of robbery.

[01:00:14] Speaker 02:
Even robbery is wrong, of forced violence and intimidation, obtaining bank property by forced violence or intimidation.

[01:00:21] Speaker 03:
So I would push back on that, Your Honor, because I would point to the discussions of the historical development of extortion and the historical

[01:00:29] Speaker 03:
codification eventually of the common law of extortion, in which extortion was developed specifically to encompass conduct that was not captured by robbery, which would be the opposite of being a species of robbery.

[01:00:40] Speaker 03:
It was specifically to, it was discreet.

[01:00:43] Speaker 03:
I mean, I would point to the Gooch case out of the Sixth Circuit addressing the distinctions between robbery and extortion in the context of the Hobbs Act case.

[01:00:52] Speaker 03:
And in that case, the Sixth Circuit expressly said that actually a single crime can't encompass both.

[01:00:58] Speaker 03:
robbery and extortion for that very reason, because of the concept of an extortion where it has this sort of term of art of consent, which of course doesn't mean a truly voluntary transaction.

[01:01:08] Speaker 02:
Does the government regularly argue, because it sounds like there are cases in which the jury is given an instruction that doesn't require

[01:01:17] Speaker 02:
finding either extortion or force unanimously?

[01:01:20] Speaker 03:
There may be some cases, Your Honor.

[01:01:22] Speaker 03:
So I would respond to that in two respects.

[01:01:24] Speaker 03:
One, I would note that in Catala.

[01:01:26] Speaker 03:
So first of all, I would say three respects.

[01:01:29] Speaker 03:
First of all, I would note that in this case, to clarify, there's no dispute that in this case both the charging document and the instructions were specific to robbery.

[01:01:37] Speaker 03:
I would note that in Katala, even when in that very case the instruction was erroneous and grouped them together, the court didn't find that dispositive where the divisibility analysis led to a different conclusion.

[01:01:48] Speaker 03:
But then also, I would note that in the cases where, that Appell and Perkins has identified, where there are indictments that were overly broad, that included the full statutory text and included both, in none of those cases was there any litigation about divisibility or multiplicity issues.

[01:02:07] Speaker 03:
And in fact, in the Smith case, that's the one that's the only local case from the District of D.C.

[01:02:12] Speaker 03:
that's cited in Appell and Perkins' reply, the defendant in that case pleaded guilty

[01:02:17] Speaker 03:
And the actual guilty plea document is very specific that it's only about robbery.

[01:02:23] Speaker 03:
It actually doesn't have any language about extortion.

[01:02:25] Speaker 03:
It only has the language related to force, violence, or intimidation, and describes the offense as bank robbery.

[01:02:30] Speaker 02:
And in the case law involving these types of crimes, usually the case... It just seems to me that if you're right that there's just this clear historical uniform tradition that extortion on one hand

[01:02:46] Speaker 02:
what you're calling robbery, but the statute actually doesn't use that term, except in the title that covers all of 2113, which nobody thinks everything in there is either divisible or indivisible.

[01:02:59] Speaker 02:
So the force part of it and the extortion part, then the pattern instruction would clearly reflect that.

[01:03:04] Speaker 02:
The government would have consistently, every single time,

[01:03:07] Speaker 02:
required that in every case, and it just may not be as clear as you're supposed.

[01:03:12] Speaker 03:
So I don't think this is the case, Your Honor, simply because, as is often the case in the development of legal principles, where something isn't directly at issue, oftentimes language ends up being imprecise, whether that's in court decisions or in instructions.

[01:03:24] Speaker 03:
And note that consistently where this issue has been expressly raised, courts have consistently found that these are divisible.

[01:03:30] Speaker 03:
I mean, every Court of Appeals to address the issue has found that.

[01:03:33] Speaker 03:
We cited a number of district courts, as far as we're aware, every district court that's addressed it has found it.

[01:03:37] Speaker 03:
But it's actually conducted a divisibility analysis here.

[01:03:40] Speaker 08:
It does sound sort of impressive when you say every Court of Appeals to have considered it.

[01:03:44] Speaker 08:
But when I looked at those cases, I was surprised to see that I think there were four.

[01:03:49] Speaker 08:
Three of them really had no reasoning whatsoever.

[01:03:51] Speaker 08:
And the King case.

[01:03:54] Speaker 08:
just wasn't entirely clear to me how the King case, that the conclusions that it was drawing from the materials that it was discussing actually followed, at least.

[01:04:06] Speaker 08:
It wasn't apparent.

[01:04:09] Speaker 08:
For example, the House report that treats this quite explicitly as, treats extortion as something that at least that committee thought

[01:04:24] Speaker 08:
was already covered.

[01:04:27] Speaker 08:
The introductory phrase of that paragraph, there is no gap in federal law.

[01:04:33] Speaker 08:
Extortionate conduct is prosecutable either under the bankruptcy provision

[01:04:40] Speaker 08:
2113 a or the Hobbs act this bill amends.

[01:04:44] Speaker 08:
2113 a expressly meaning it was implicit now we're making express to cover crimes of extortion directed at federally insured banks so.

[01:04:55] Speaker 08:
That seems pretty powerful.

[01:04:57] Speaker 08:
And yet this first circuit, I think, threw the opposite inference.

[01:05:01] Speaker 08:
I believe, if I'm remembering correctly, saying, well, the Hobbs Act seems to treat them separately.

[01:05:06] Speaker 08:
And by referencing the Hobbs Act, the 1986 amending enactment intended to do the same.

[01:05:17] Speaker 08:
I just wasn't sure that that followed.

[01:05:19] Speaker 03:
And so, Your Honor, my understanding, and I

[01:05:21] Speaker 03:
don't mean to speak for the First Circuit, but my interpretation of what they were driving at, and even if I'm wrong, I think this is the proper analysis, so this is what I'll argue before your honors, is that the context of that legislative history in that House report is significant, which is that Congress wasn't purporting to do a statutory analysis in the way that courts do.

[01:05:38] Speaker 03:
What Congress was confronting is that some courts had found there to be a gap, and clearly Congress did not want there to be a gap.

[01:05:45] Speaker 03:
What's relevant here

[01:05:46] Speaker 03:
is that this court is analyzing the statute as it exists after they amended it.

[01:05:51] Speaker 03:
And their solution of how they amended it was to import the terminology and the definition of extortion from the Hobbs Act, where these are expressly set forth as different crimes.

[01:06:02] Speaker 03:
So we don't even need to presume that Congress was aware of how this is defined and set forth in the Hobbs Act.

[01:06:07] Speaker 03:
The House report actually uses the same language as the Hobbs Act.

[01:06:10] Speaker 03:
And in fact, this whole issue came up in the context of the interrelationship between 2113 and the Hobbs Act.

[01:06:16] Speaker 02:
I'm sorry.

[01:06:16] Speaker 02:
Suppose that there's two strands of cases, some of which in the prior regime where extortion wasn't specifically mentioned in the first paragraph in 2113A.

[01:06:27] Speaker 02:
So there's two strands of cases, some of which say that extortion's covered and some of which say that extortion's not.

[01:06:32] Speaker 02:
And then the government, I assume, is making the argument all the time that extortion is covered when it wants to bring a charge.

[01:06:38] Speaker 02:
So then there's some disagreement that emerges, and then Congress says that we've got to rectify this disagreement.

[01:06:43] Speaker 02:
And they just put in the statute, we're making a statutory finding that the first set of cases is right, and the statute has always covered extortion.

[01:06:53] Speaker 02:
And just to make that clear, we're going to add or buy extortion in the statute.

[01:06:57] Speaker 02:
Would you still be making the same argument?

[01:06:58] Speaker 03:
We would, Your Honor, especially because Congress... You'd still be making the same... Given, again, I think there needs to be something clearer that Congress is...

[01:07:09] Speaker 03:
Congress's goal, even in that scenario, is to make sure that the statute criminalizes the conduct that it wants to criminalize.

[01:07:15] Speaker 03:
And Congress is making that amendment and passing the law in the context of the common law history, the early codification of these, the development of these different discrete types of crimes.

[01:07:28] Speaker 03:
And then also the Hobbs Act, where they're expressly set forth as different crimes.

[01:07:32] Speaker 03:
And in that context, there's no reason to believe that Congress in 2113 intended a different treatment, not only from the Hobbs Act, but from the entire history of how these two crimes have been treated.

[01:07:46] Speaker 02:
For whatever reason, it doesn't actually amend the text of the statute.

[01:07:48] Speaker 02:
It just inserts a finding into the statute that says, there's two strands of cases.

[01:07:52] Speaker 02:
We agree with the strand of cases.

[01:07:54] Speaker 02:
From this point forward, the statute should be understood to line up with the first strand of cases, which finds that extortion's covered.

[01:08:01] Speaker 02:
At that point, there's no possible argument.

[01:08:04] Speaker 03:
It's a more difficult case, Your Honor, certainly.

[01:08:06] Speaker 03:
And also, it sort of raises the interesting issue

[01:08:09] Speaker 03:
to what extent if Congress says something that's contrary to the language of the statute, which is a whole different, at least to some other canons of construction that aren't implicated here.

[01:08:17] Speaker 03:
So I certainly would acknowledge that we'd be facing a more difficult argument.

[01:08:20] Speaker 03:
That isn't the scenario we have here.

[01:08:23] Speaker 03:
And I also wanted to respond in terms of putting this, what we believe, dispositive weight on the historical development of these statutes, I did want to respond to some of the discussion of the Shad case, which addressed felony murder.

[01:08:35] Speaker 03:
In that case, the court didn't just take it as a given that the fact that a statute had encompassed felony murder and murder in the same statute meant that there was only one offense.

[01:08:45] Speaker 03:
The Supreme Court actually said, was quote, significant,

[01:08:48] Speaker 03:
that treating felony murder as a species of first degree murder finds substantial historical and contemporary echoes, and went all the way back to the common law, where it said that they actually were treated as alternative aspects of the malice aforethought of unlawful killing.

[01:09:01] Speaker 03:
So whether or not someone on a blank slate might reach a different conclusion, the court relied heavily on the historical development, which viewed those as a species of the same crime.

[01:09:13] Speaker 03:
And the historical development of these crimes is the opposite.

[01:09:16] Speaker 05:
But the Supreme Court

[01:09:18] Speaker 05:
In interpreting 2113 in cases like Bell and Carter, those cases, one was whether bank larceny was a lesser included offense of bank robbery.

[01:09:39] Speaker 05:
But in both cases, the Supreme Court

[01:09:43] Speaker 05:
very explicit in pointing out that they believed that Congress had departed from the common law when they made, you know, bank larceny a crime, and that larceny didn't necessarily mean exactly the same thing between the common law and larceny as part of bank larceny.

[01:10:11] Speaker 05:
And so why shouldn't we see bank robbery as the same thing?

[01:10:21] Speaker 03:
So, Your Honor, it's not the case, and we would suppose to be the case, that a legislative body can't depart from common law.

[01:10:27] Speaker 03:
Of course it can.

[01:10:29] Speaker 03:
But our argument here is that drawing on this court's analysis in Catala, where the law has long treated things as distinct offenses, there needs to be a specific reason to think that the legislative body has departed.

[01:10:40] Speaker 03:
And so I would point again, because I think the analysis is pretty instructive, in the Syntrone case, when the 11th Circuit, that Appellant Perkins had cited in the reply, where they were dealing with a Florida statute that, again, expressly combined different types of drug offenses that had been historically treated as different, and specifically said in the legislation itself, not just in the history, in the actual statute, that these were now being combined.

[01:11:03] Speaker 03:
In that case, the 11th Circuit distinguished from a different Florida statute.

[01:11:08] Speaker 03:
that also combined selling, manufacturing, and delivering drugs.

[01:11:13] Speaker 03:
And that statute was found to be divisible, because those were discrete and different types of crimes, and there was no indication that they had been grouped together.

[01:11:21] Speaker 03:
So even in the same state law, sorry.

[01:11:24] Speaker 05:
What are we to make of the fact that Congress didn't define extortion when they added it to 2113A?

[01:11:32] Speaker 03:
So certainly this would be a clear case if they had your honor.

[01:11:35] Speaker 03:
But I again point to the fact that the terminology used when they added extortion here so closely mirrors the Hobbs Act and wait.

[01:11:44] Speaker 08:
I'm sorry.

[01:11:45] Speaker 08:
Finish your sentence.

[01:11:47] Speaker 03:
Well it's so closely mirrors the Hobbs Act and it was done in the context of

[01:11:51] Speaker 03:
the interrelationship between 2113 and the Hobbs Act, that the fact that they're discreetly set apart in the Hobbs Act, Congress, I think the presumption has to be that Congress is treating them the same.

[01:12:03] Speaker 05:
So let me have you answer my hypothetical of the guy with the green coat.

[01:12:08] Speaker 05:
So recall the bank manager gets a phone call from his wife.

[01:12:14] Speaker 05:
She says, man's got a knife to my throat.

[01:12:17] Speaker 05:
Says he'll kill me if you don't give a bag of money.

[01:12:21] Speaker 05:
to a man with a green coat inside the bank.

[01:12:24] Speaker 05:
The bank manager says, tell him I'll do it.

[01:12:28] Speaker 05:
Tell him not to hurt you.

[01:12:30] Speaker 05:
And he hands a bag of money to the guy with the green coat.

[01:12:34] Speaker 05:
The guy with the green coat is on trial.

[01:12:36] Speaker 05:
Does he get a unanimity instruction with respect to force and violence theory versus

[01:12:44] Speaker 03:
I mean, a unanimity instruction wouldn't be... I would say it wouldn't be inappropriate there.

[01:12:49] Speaker 03:
Another solution that I think is... Yes or no?

[01:12:51] Speaker 03:
Oh, if it's requested and that's the only thing straightforward, I think the answer would be yes.

[01:12:56] Speaker 03:
But I would follow up by saying... Why?

[01:12:58] Speaker 03:
Because these are divisible crimes.

[01:13:00] Speaker 03:
These are different extortion, they're separate and divisible crimes.

[01:13:03] Speaker 03:
And frankly, the reason why I was trying to add a little bit more to my answer, Your Honor, I'm not trying to avoid your question, is that I think in this scenario, in fact, the more proper solution would be to only extract on the extortion theory.

[01:13:15] Speaker 03:
Because robbery, both at common law and as defined here, includes taking the,

[01:13:22] Speaker 03:
taking the property from the person or presence of another by fear or intimidation or threat of force.

[01:13:29] Speaker 03:
And in a lot of extortion cases, the idea is that the person... But the jury could find that he took it by intimidation.

[01:13:40] Speaker 03:
I guess in the precise scenario where they interact personally, your honor, and that one, it could be either.

[01:13:44] Speaker 03:
It could be either.

[01:13:44] Speaker 03:
If it was, if it was a difference, I guess in my mind, I was thinking of taking the money to a location and leaving it there, but I'm realizing now in your honor scenario, they do interact personally.

[01:13:52] Speaker 05:
Let me ask you a different hypo.

[01:13:54] Speaker 05:
So the guy in the green coat, you know, goes up to one teller, punches that teller and takes, takes money from that teller then walks to the next window.

[01:14:07] Speaker 05:
punches that teller, takes money from that teller, comes out.

[01:14:14] Speaker 05:
The government indicts him for two counts of bank robbery.

[01:14:24] Speaker 05:
And he says, no, those merge.

[01:14:29] Speaker 05:
Are those two counts, or is that prosecutable only as one count?

[01:14:33] Speaker 03:
I think that would raise a different set of questions, Your Honor, in terms of whether or not the offense is even of the same type.

[01:14:41] Speaker 03:
That might start raising questions about whether there was a fork in the road type analysis between two offenses of the same type more so than the issue we're presented with here about the distinction between the different types of crimes, the nature of the conduct.

[01:14:53] Speaker 05:
I understand it's a different circumstance.

[01:14:55] Speaker 05:
I just want you to answer the question.

[01:14:58] Speaker 03:
I think I would lack enough information, Your Honor.

[01:15:01] Speaker 03:
I think there might be arguments both ways in that sort of scenario.

[01:15:04] Speaker 03:
A lot of times those cases hinge on specific factual questions.

[01:15:09] Speaker 03:
But again, I don't think they're replicated here.

[01:15:10] Speaker 05:
But what question would make that two separate offenses?

[01:15:14] Speaker 05:
He punches one teller and five seconds later he punches teller two and he takes money from both and walks out.

[01:15:21] Speaker 03:
The reason I hesitate to give you a straight answer, Your Honor, is because I don't feel confident in my answer.

[01:15:25] Speaker 03:
I know that part of that analysis is that different statutes, sometimes divisibility in that case can be directed based upon the number of victims and I have not analyzed in this context whether that would be the determinant of question for divisibility in this context if multiple victims

[01:15:42] Speaker 03:
would result in multiple charges, or if there would need to be more of a break.

[01:15:46] Speaker 03:
Off the cuff, I simply don't know that answer.

[01:15:48] Speaker 05:
OK.

[01:15:49] Speaker 05:
Well, the reason I ask you that is because the next question is, suppose a guy in the green coat went to Teller 1 and said, give me some money, or I'm going to show your husband these pictures of you having an affair with someone.

[01:16:08] Speaker 05:
and the teller hands over the money and then he goes to teller two and just punches them and takes the money.

[01:16:16] Speaker 03:
Are those two offenses or one?

[01:16:20] Speaker 03:
I mean I think in that case it's much clearer those are two offenses because the nature of the conduct is so different that the person has actually committed two completely different types of crimes.

[01:16:29] Speaker 05:
I think that's a much clearer... I don't see how that squares with your argument that you know this is all the same as like the common law because

[01:16:39] Speaker 05:
I think we could find regional reporters by the dozens or hundreds where one person goes up or a group of people go up and maybe to a couple or two or three people and they rough up one guy and take his wallet and then rough up guy number two

[01:17:07] Speaker 05:
and take his money, they can be two crimes because they're two victims, but if there's only one victim here in the bank, courts would say, you know, that's one crime.

[01:17:33] Speaker 05:
And so, again, Your Honor, in your first... Let's say they rough up the guy, and one guy takes his wallet, and then somebody else roughs him up some more and says, oh, you've got an iPhone or a watch, and they take that.

[01:17:53] Speaker 03:
That's going to be one crime.

[01:17:56] Speaker 03:
So again, respectfully, Your Honor, I think in a lot of scenarios where multiple people are assaulted, there would be separate crimes.

[01:18:02] Speaker 03:
But I don't think that that's, again, what's being presented here.

[01:18:05] Speaker 03:
And I would emphasize a major distinction between the two hypotheticals is whether or not the person is committing the same type of conduct in the same crime, which actually results in a different divisibility analysis, as opposed to discrete types of crimes.

[01:18:18] Speaker 03:
And that's why I think it's significant that extortion is

[01:18:21] Speaker 03:
directed at a different concern than robbery.

[01:18:23] Speaker 03:
Robbery's focus is on someone being placed in fear of immediate bodily harm.

[01:18:30] Speaker 03:
And extortion was specifically developed, both at the common law and eventually in codification, to address coercive conduct placing someone in a different type of fear.

[01:18:40] Speaker 05:
Well, I take your point because my understanding has always been that robbery is theft plus an assault.

[01:18:49] Speaker 05:
That's common law.

[01:18:51] Speaker 05:
Armed robbery is theft plus assault with a dangerous weapon, whereas extortion is theft plus a threat.

[01:19:02] Speaker 05:
So you take common law theft, common law threat, combine the two, you get extortion, robbery.

[01:19:11] Speaker 05:
You take common law theft, common law assault, combine the two, you get robbery.

[01:19:16] Speaker 05:
So in that sense, they are distinct.

[01:19:21] Speaker 05:
a threat is a different crime with different elements than an assault.

[01:19:28] Speaker 05:
So I take that part of your point.

[01:19:32] Speaker 05:
But the question here is that even if that is true as a general matter, and that's probably why courts have found Hobbs Act to be divisible between extortion and robbery, because it's still kind of

[01:19:50] Speaker 05:
been construed as importing in that common law understanding of how robbery works and how extortion works.

[01:20:02] Speaker 05:
We still have to determine whether by importing extortion here, Congress intended to preserve those common law meanings.

[01:20:21] Speaker 05:
And what do we do when the Supreme Court has said, well, with respect to this very statute, it's not necessarily the case.

[01:20:32] Speaker 05:
I mean, is there any case or divisibility analysis that says that kind of the default is that we assume that they keep the common law meanings?

[01:20:46] Speaker 03:
So I would say that Catala comes pretty close to that, Your Honor, when it says that where the law has long treated conspiracy and substantive crimes as distinct offenses.

[01:20:56] Speaker 08:
So here's my question about the government's position on this.

[01:21:01] Speaker 08:
How much are you resting on the obtain with consent?

[01:21:08] Speaker 08:
And I understand this is a kind of punitive consent by extortion versus take.

[01:21:15] Speaker 08:
by force, take over the, you know, overcoming the will by force.

[01:21:22] Speaker 08:
So the government seems to rely on both a distinction between obtaining and taking and a distinction between consent and non-consent.

[01:21:31] Speaker 08:
Is that right?

[01:21:32] Speaker 03:
That's right, Your Honor.

[01:21:34] Speaker 03:
I would say with respect to the consent, that's 100% right.

[01:21:37] Speaker 03:
With respect to the obtain versus taking, we acknowledge, and I know Palin Perkins has pointed out, that those have not been 100% consistently throughout the common law used as discrete concepts.

[01:21:48] Speaker 08:
When you say 100% on consent and non-consent, you're saying that

[01:21:53] Speaker 08:
extortion is a way of getting something from someone that doesn't want to give it to you, but doing it with sort of this punitive consent, inducing

[01:22:04] Speaker 08:
consent that they don't really want to get.

[01:22:06] Speaker 08:
But to you, that makes a difference.

[01:22:08] Speaker 03:
Yes, absolutely.

[01:22:09] Speaker 03:
And I think the Ocasio case from the Supreme Court in 2016 goes into great depth about the concept of consent in the context of extortion and what that means.

[01:22:18] Speaker 03:
I think punitive consent is maybe a good way of putting it.

[01:22:20] Speaker 03:
They sort of describe it as a term of art, a special type of consent.

[01:22:24] Speaker 08:
So that's the common law has the consent and the Hobbs Act in its definition has the consent.

[01:22:28] Speaker 08:
But in the House report to the

[01:22:31] Speaker 08:
1989 Amendment of 2113A, Congress expressed this intention that extortion would be defined as, quote, obtaining property from another person without the other person's consent, which seems to distinguish it from common law extortion, which was understood as obtaining property with this sort of putative

[01:22:53] Speaker 08:
So again, the legislative history seems to show that Congress did not intend to bring a common law notion with its soil into 2013A.

[01:23:04] Speaker 03:
Sorry, with respect to that, we agree wholeheartedly with the Vidring case from Eastern District of California that we cited, which said that in the context of the House report, it's clear that the word without there is a typographical error, given that there's no indication in the report that Congress intended to make such a drastic shift in the meaning of extortion to literally define it in the opposite way that it has been defined in the Hobbs Act and throughout the history of the common law.

[01:23:28] Speaker 03:
That the word without there is pretty clearly a typographical error given that

[01:23:33] Speaker 03:
That would be such a drastic change in law, you would have expected Congress to explain why they were defining it in the opposite way.

[01:23:39] Speaker 02:
Can I ask a question?

[01:23:39] Speaker 02:
I don't want to, if you have a follow-up.

[01:23:42] Speaker 02:
Go ahead.

[01:23:43] Speaker 02:
Along these lines on how much work it's doing, and it should do, that extortion at common law could be seen as something different from robbery.

[01:23:53] Speaker 02:
So suppose what Congress did, and then I take your point that take and obtain

[01:23:57] Speaker 02:
sort of distinct but not necessarily completely distinct that there's some mush there.

[01:24:01] Speaker 02:
So suppose that Congress, maybe you have an answer to that, I think like you did, but just bear with me for a second.

[01:24:07] Speaker 02:
So suppose that Congress, what they did in the statute is they said when they decided what to do with extortion, whoever by force and violence or by intimidation or by extortion takes or obtains, blah, blah, blah.

[01:24:23] Speaker 02:
So it's just adding by extortion to

[01:24:27] Speaker 02:
by force and violence or by intimidation or by extortion, takes or obtains.

[01:24:32] Speaker 02:
They do a bunch of other stuff.

[01:24:32] Speaker 02:
That's a coherently written provision.

[01:24:36] Speaker 02:
I think everybody agrees that by intimidation is a means, not a divisible element.

[01:24:43] Speaker 02:
And if you tack on by extortion to that, would you say that, well, okay, even though there's this rich common law history in the way you view it, because of the way Congress arrayed the terms, we would reach the conclusion that

[01:24:54] Speaker 02:
extortion is parallel to intimidation and force and violence, so it's a means.

[01:24:58] Speaker 03:
I think, I mean, so first I would say no, I don't think that would change the outcome here, but it would be, I mean, that would make it a less strong argument, I think.

[01:25:05] Speaker 02:
Oh really, so you would take the position that even though it's written in exactly parallel terms, that extortion works just like intimidation in the geometry of the statute, that because of the common law of history, we should treat intimidation as a means, extortion

[01:25:23] Speaker 02:
as an element with the consequence that juries have to be given a unanimity instruction on extortion, but they can't be given a unanimity instruction on intimidation.

[01:25:33] Speaker 03:
Yes, Your Honor, and I would point again to Catala, where I feel like the scenario Your Honor has outlined I think is actually much closer syntactically to what the court was confronted with in Catala.

[01:25:42] Speaker 02:
Our argument would take- But in Catala, was there also the added, and I just don't remember the complete language, that there would be something that would be exactly parallel, but would nonetheless be treated as a means, and then this would be treated as an element?

[01:25:54] Speaker 02:
Because that's what I'm inserting into it.

[01:25:56] Speaker 02:
Maybe Catala did have that.

[01:25:57] Speaker 02:
I take your point that if there's a statute that just uses by,

[01:26:01] Speaker 02:
then you could have an open question as to whether that's an element or a means.

[01:26:06] Speaker 03:
I think that the shortest way I can put it, Your Honor, is that the separate use of the verb phrases here, and especially the fact that obtain is taking the same exact terminology from the Hobbs Act definition, strengthens our position.

[01:26:17] Speaker 03:
I don't think that that is necessarily, that absent to that, that the opposite outcome is necessitated.

[01:26:26] Speaker 08:
I mean, in the legislative history, the wording is actually rather closer

[01:26:31] Speaker 08:
than the enacted statutes wording in the sense of weaving together the role of extortion parallel to the pre-1986 terms says the term extortion

[01:26:51] Speaker 08:
as used in 18 U.S.C.

[01:26:53] Speaker 08:
2113a means obtaining property from another person without the other person's consent induced by the wrongful use of actual or threatened force, violence, or fear.

[01:27:07] Speaker 08:
So it's explaining that it is kind of another means of similar.

[01:27:18] Speaker 08:
It has this kind of

[01:27:21] Speaker 08:
I mean, to me, that seems like that's close to the hypothetical.

[01:27:25] Speaker 03:
I would disagree, Your Honor, and for this reason, is that that language is the exact language used to define extortion in the Hobbs Act.

[01:27:33] Speaker 03:
And the idea of extortion being not just a subspecies of robbery, but a separate crime that encompasses different conduct, where the type of fear involves the use of threatened force or violence or fear, it's where those threats are made not

[01:27:49] Speaker 03:
in the person's, where the property's not taken from the presence or person of another.

[01:27:52] Speaker 03:
So if someone writes a letter, makes a phone call just threatening somebody to do something or to bring money somewhere or to leave money somewhere, not from the person or presence of another.

[01:28:00] Speaker 03:
Because the key distinction and the key danger that is being addressed by robbery is placing somebody in fear of that immediate bodily injury.

[01:28:09] Speaker 03:
And at common law and then eventually in early codifications like the Field Code and the early New York Penal Code,

[01:28:16] Speaker 03:
The reason why extortion developed was because that specific crime of robbery did not encompass placing people in fear, either a different type of fear, a fear that wasn't involving force, or a fear that wasn't placing the person in immediate fear of bodily harm, where the property wasn't being taken from the person or presence of that person.

[01:28:36] Speaker 05:
I do notice- Why would Congress then make extortion

[01:28:46] Speaker 05:
as part of bank robbery, as a means of bank robbery, punished more severely than Hobbs Act extortion?

[01:28:56] Speaker 03:
Well, I think in the bank... They're the same thing.

[01:29:00] Speaker 03:
Well, I mean, the robbery is also the same in Hobbs Act and the Bank Act.

[01:29:03] Speaker 03:
The distinction Congress was drawing, one of the reasons why they were trying to resolve the circuit split about what should be the exclusive means of prosecuting this crime was the difference in interest between the Hobbs Act in 2113 is about the Hobbs Act more generally relating to interstate commerce, whereas the bank statute that they wanted to encompass or that they wanted to criminalize, both robbery and extortion and in fact also burglary,

[01:29:30] Speaker 03:
was addressed to protecting federally insured banks.

[01:29:34] Speaker 03:
Congress made the policy decision that that was even a higher priority than generally prioritizing interstate commerce.

[01:29:41] Speaker 03:
But it wasn't a distinction between the conduct.

[01:29:44] Speaker 03:
That's why they were funneling any of the crimes that involved interstate banks, excuse me, federally insured banks, to 2113.

[01:29:54] Speaker 03:
I'm sorry.

[01:29:55] Speaker 03:
I also wanted to make sure I had a chance to address the Rosemont claim.

[01:29:57] Speaker 03:
But if your honors have any other questions about Johnson, I would like to.

[01:30:00] Speaker 08:
I actually had a question about the 2113D.

[01:30:03] Speaker 08:
I know that that government acknowledges that that was not preserved.

[01:30:08] Speaker 08:
It's not relying on it.

[01:30:10] Speaker 08:
But in a situation like this, even were this court to hold that 2113A is indivisible,

[01:30:26] Speaker 08:
And had that been preserved, the divisibility or not would have no effect here.

[01:30:37] Speaker 03:
So Your Honor, because this hasn't been briefed, it was not within the scope of the certificate of appealability.

[01:30:43] Speaker 03:
I mean, as we've acknowledged, we're not relying on it here.

[01:30:46] Speaker 03:
But all I would say is we do point in our brief to a 10th Circuit case.

[01:30:50] Speaker 03:
It's an unpublished decision, I acknowledge.

[01:30:51] Speaker 03:
But a 10th Circuit case that addresses that very issue, that did find the fact that

[01:30:57] Speaker 03:
The person that the defendant was convicted also under subsection D, dispositive.

[01:31:02] Speaker 03:
But we have not briefed that and aren't relying on it here for the reasons your honor set forth.

[01:31:07] Speaker 02:
Right, which would support what Judge Pillard said.

[01:31:09] Speaker 02:
The 10th Circuit decision then would mean that if that were something we followed, that would mean that the debate that we're having about the way A works would drop out.

[01:31:18] Speaker 02:
It wouldn't matter.

[01:31:19] Speaker 03:
Yes.

[01:31:19] Speaker 03:
I mean, that would, right.

[01:31:21] Speaker 03:
You would not also then need to analyze the divisibility.

[01:31:24] Speaker 03:
I think that's correct.

[01:31:26] Speaker 05:
So what is the reasoning, let's say, before extortion was added to 2113A, how do we know just by looking at the statute, the statutory text, that by force and violence or by intimidation,

[01:31:57] Speaker 05:
that those are alternative means rather than different elements.

[01:32:05] Speaker 05:
What tells us that?

[01:32:06] Speaker 03:
I mean, without going into just rereading this court's own decisions back to it, I mean, I think that's the issue that this court addressed in Carr and found based on statutory text and history and the full divisibility analysis found that those were alternative means.

[01:32:21] Speaker 03:
In that case, the court wasn't asked to even look at the language for extortion.

[01:32:25] Speaker 03:
So address just to the issue your honor has identified.

[01:32:27] Speaker 03:
This court did find that those were alternative means, and that's a settled issue.

[01:32:32] Speaker 05:
I understand that we found that, but I guess I'm trying to get you to tell me what you think were the keys to that conclusion.

[01:32:43] Speaker 03:
To put it in the context that I think is most relevant to this case, it's that all of those are subsumed within the traditional understanding of robbery.

[01:32:52] Speaker 03:
I mean, that's basically defining different types of robberies, whereas extortion is not, again, a type of robbery.

[01:32:59] Speaker 03:
It was a crime specifically developed to encompass conduct not encompassed by robbery.

[01:33:07] Speaker 08:
And that's because of the presence or not

[01:33:09] Speaker 03:
That's a critical factor.

[01:33:11] Speaker 03:
The person or presence of another is certainly a critical distinction, yes.

[01:33:15] Speaker 03:
I did, I acknowledge I'm out of time, but I, with your honor's permission, wanted to address the Rosemont claims.

[01:33:21] Speaker 03:
You can do that briefly, yeah.

[01:33:22] Speaker 03:
Thank you, your honor.

[01:33:23] Speaker 03:
The first thing I wanted to clear up is to eliminate any confusion.

[01:33:27] Speaker 03:
We do not agree that this is a de novo review.

[01:33:28] Speaker 03:
This was a challenge to a jury instruction not made below and raised for the first time on collateral attacks.

[01:33:33] Speaker 03:
So first of all, we believe it's procedurally defaulted, but even if it's not, it should be reviewed for plain error.

[01:33:39] Speaker 03:
But even if the claim isn't procedurally defaulted, we submit that based upon the record evidence in this case, there would have been no plausible basis to argue that Mr. Burwell participated in this robbery but did not know that his confederates would be armed.

[01:33:56] Speaker 03:
To answer one of the questions that came up during Appellant's arguments, there is testimony first from Mr. Cittani that

[01:34:04] Speaker 03:
Everyone was holding their weapons in the stolen minivan on the way over to the crime.

[01:34:10] Speaker 03:
And these are two and a half foot long AK-47s.

[01:34:14] Speaker 03:
These are not concealed handguns.

[01:34:15] Speaker 03:
There were no plausible basis to argue that someone was unaware of them.

[01:34:19] Speaker 03:
But beyond even just Mr. Cittani's argument, excuse me, testimony, I point to

[01:34:25] Speaker 03:
Supplemental appendix page three that we submitted that has the testimony of the security guard at the IB bank who was standing outside the bank and said that the robbers jumped out of the minivan holding their AK-47.

[01:34:36] Speaker 03:
They were not stashed somewhere else, they were not hidden.

[01:34:39] Speaker 03:
And so again, we submit that based on the record evidence that there's no reasonable probability that the jury could have found that Mr. Burwell lacked advanced knowledge.

[01:34:47] Speaker 03:
I did also want to address the questions about whether the knowledge requirement, advanced knowledge requirement, should extend to the type of gun being a machine gun.

[01:34:57] Speaker 03:
I want to note that Palin Burwell has identified no authority and made no argument as to why this court's en banc decision would not be controlling here, given the principle that an element requires no proof for the mens rea of the

[01:35:10] Speaker 03:
the principle that no proof of mens rea is required for aiding and abetting liability.

[01:35:15] Speaker 03:
And Rosemont did nothing to change that.

[01:35:16] Speaker 03:
It did not suggest that a higher mens rea is required for an accomplice.

[01:35:21] Speaker 03:
But if you're honest, because I'm out of time, if you're honest, I have no further questions on that claim.

[01:35:26] Speaker 03:
I ask that the court affirm the judgment of the district court.

[01:35:30] Speaker 02:
Thank you, counsel.

[01:35:32] Speaker 02:
Ms.

[01:35:33] Speaker 02:
Smillion will give you two minutes for a rebuttal.

[01:35:38] Speaker 07:
Thank you, Your Honors.

[01:35:39] Speaker 07:
A couple of points I'd like to make, and then if you all have any additional questions.

[01:35:44] Speaker 07:
There was a lot of discussion about this circuit's decision in Catala.

[01:35:47] Speaker 07:
And I just want to point out that Catala itself, in its own text, refused to extend its intuition about conspiracy being different from a substantive offense to the differences between robbery and extortion when it discusses the Hobbs Act.

[01:36:01] Speaker 07:
I mean, it does so in passing.

[01:36:03] Speaker 07:
But when it does so, it specifically puts as means

[01:36:06] Speaker 07:
robbery and extortion, and so I think in that decision itself it's specifically contemplating a different outcome potentially in a robbery versus extortion context.

[01:36:17] Speaker 02:
Under this statute or under the Hobbs Act?

[01:36:19] Speaker 07:
Under the Hobbs Act, but I think what it demonstrates for this statute is that this intuition that robbery and extortion are so different that they must be treated as elements rather than means doesn't on the face of Katala itself follow.

[01:36:33] Speaker 07:
Secondly, as I said earlier, while I'm personally persuaded that Hobbs Act robbery is divisible, I think if the court disagrees with that and doesn't even think that Hobbs Act robbery itself is divisible, then the government's argument fails.

[01:36:53] Speaker 07:
There was some discussion of this concept of consent versus not consent.

[01:36:59] Speaker 07:
I agree with what you said, Judge Pillard, the consent language didn't make itself

[01:37:03] Speaker 07:
into the statute and the legislative history suggests that without consent is actually what Congress had in mind for extortion here.

[01:37:10] Speaker 08:
Do you have any response to the argument that given that the legislative history narration that relevant part precisely tracks the Hobbs Act definition that as what I think was the Northern District of California decision, Badrine said that appears to be a typo.

[01:37:32] Speaker 07:
I mean, I just don't, I'm not persuaded by that.

[01:37:37] Speaker 07:
Congress, you know, writes things thoughtfully.

[01:37:40] Speaker 07:
If it had the Hobbs Act in front of it, it presumably would have copied that text exactly.

[01:37:45] Speaker 07:
And I certainly think we don't presume typos in the absence of contrary information.

[01:37:50] Speaker 07:
And I think, I don't think we have the time.

[01:37:52] Speaker 02:
We don't have statutes, but we're talking about the statement in the report, right, at this point?

[01:37:57] Speaker 07:
That's true.

[01:37:57] Speaker 07:
But it's not, you know, it's not a classic typo where you use

[01:38:03] Speaker 07:
You have some sort of grammatical, like a subject for agreement error.

[01:38:07] Speaker 07:
This is a substantive issue.

[01:38:09] Speaker 07:
And I just don't think that we have enough here to conclude that this is a typo.

[01:38:14] Speaker 07:
And as I point out in my brief, I really think that there's not a lot of difference between with and without consent.

[01:38:21] Speaker 07:
Many courts have called it illusory.

[01:38:23] Speaker 07:
So do secondary sources.

[01:38:27] Speaker 05:
But what of the issue of the common law understanding

[01:38:33] Speaker 05:
of robbery being a theft plus an assault versus extortion under the common law being a theft plus a threat.

[01:38:46] Speaker 05:
Those are two different things.

[01:38:50] Speaker 05:
Why shouldn't we believe that those distinctions survive once this amendment is made to the bank robbery statute?

[01:39:01] Speaker 07:
So the text, if you look at the legislative history, the definition of extortion that it gives references force, violence, and fear.

[01:39:11] Speaker 07:
So it's contemplating extortion sweeping more broadly than just threats.

[01:39:16] Speaker 07:
And it certainly is encompassing the type of threats that we agree are satisfied under the intimidation, taking by intimidation.

[01:39:25] Speaker 07:
Extortion can be committed by non-violent threats, but it can also, as a hypothetical you've offered, suggest it can be committed by violent threats.

[01:39:35] Speaker 07:
I've kidnapped your wife, and I'm going to slit her throat if you don't provide money or something.

[01:39:40] Speaker 07:
So I think in that respect, extortion captures something that's broader than robbery.

[01:39:56] Speaker 07:
And not, I should say, assault of conduct in addition to threatening conduct.

[01:40:00] Speaker 05:
But you don't dispute, I guess, the premise of my question, which is that extortion was a different crime under the common law in the sense of being theft plus a threat.

[01:40:20] Speaker 05:
And a threat is not necessarily synonymous with assault.

[01:40:26] Speaker 07:
a threat can be broader than assault.

[01:40:29] Speaker 07:
But I think extortion under the statute here could encompass assault of conduct.

[01:40:35] Speaker 02:
But do you have a response on the common law?

[01:40:37] Speaker 02:
Is it true that the common law, the understanding was that extortion and robbery, you wouldn't look at extortion as a subset of robbery because it had an element that is different from an element that was necessary to constitute robbery?

[01:40:56] Speaker 02:
if I'm understanding the use.

[01:40:58] Speaker 07:
Yes.

[01:41:00] Speaker 07:
I'm not sure that I agree with that.

[01:41:02] Speaker 07:
I've not seen.

[01:41:04] Speaker 01:
But you're not sure you don't.

[01:41:05] Speaker 07:
I mean, I've not seen things that specifically articulate how you're describing extortion and robbery in the way that you just did, which is this threat versus assault.

[01:41:14] Speaker 07:
I do think, actually, robbery is incorporated in extortion.

[01:41:20] Speaker 07:
And extortion can include assault of conduct.

[01:41:23] Speaker 07:
at common law in addition to threats, and the government made the point that they distinguish extortion on the grounds that robbery is committed in the presence of a person and extortion is not, but I disagree with that.

[01:41:38] Speaker 07:
Extortion does not need to be committed in the presence of a person, but it certainly can be.

[01:41:47] Speaker 05:
Okay, thanks.

[01:41:47] Speaker 05:
Unless anybody has anything further?

[01:41:50] Speaker 05:
But I mean, you don't dispute that robbery requires the property to be taken from the immediate presence of the victim.

[01:42:00] Speaker 07:
No.

[01:42:02] Speaker 07:
There's some suggestion in the case law prior to the addition of extortion that it didn't need to be.

[01:42:09] Speaker 05:
Say that again.

[01:42:12] Speaker 07:
I don't disagree that that's required of robbery and not of extortion.

[01:42:18] Speaker 07:
But I don't think extortion has its own element that is sort of separate and different from robbery, I guess I should say.

[01:42:26] Speaker 07:
It doesn't have what the government described as saying without the president's requirement.

[01:42:30] Speaker 02:
So you're treating robbery as a species of extortion?

[01:42:33] Speaker 07:
I think that's right.

[01:42:34] Speaker 02:
As opposed to extortion being a piece of robbery?

[01:42:35] Speaker 07:
At the common law, I think that's right, yes.

[01:42:38] Speaker 05:
I don't see how that could be.

[01:42:43] Speaker 05:
You know, there's kind of a famous DC Court of Appeals case on like, is a pickpocket a robbery?

[01:42:52] Speaker 05:
And they said yes, because you're taking to theft from the immediate presence of the person, and there's an assault because you've got to kind of touch the person, an unconsented touching, in order to pick their pocket.

[01:43:11] Speaker 05:
But there's got to be an assault for there to be a robbery.

[01:43:19] Speaker 05:
And the whole question in that context is like, is a pickpocket really committing an assault or not?

[01:43:28] Speaker 05:
And the court had to answer that question yes.

[01:43:32] Speaker 05:
And I think that's the way that common law robbery is thought of.

[01:43:37] Speaker 05:
But you don't have to commit an assault

[01:43:41] Speaker 05:
to commit extortion, that's the whole point.

[01:43:44] Speaker 05:
It can just be a threat, and it doesn't even have to be a threat of an assault.

[01:43:47] Speaker 05:
It can be a threat that, like, I'll just expose some embarrassing fact about you if you don't give me a million dollars.

[01:44:01] Speaker 07:
I agree with that, but I think my point is that assault of conduct can satisfy extortion.

[01:44:08] Speaker 05:
It can, but it's got

[01:44:12] Speaker 05:
kind of an entirely kind of separate element for Blockberger or unanimity type analysis, right?

[01:44:21] Speaker 07:
I don't agree with that.

[01:44:22] Speaker 07:
I certainly, I don't agree with it in the context of at least the statute that we're talking about here with respect to extortion.

[01:44:34] Speaker 07:
Extortion is defined here as force, violence, and fear, putting someone in force, violence, and fear.

[01:44:41] Speaker 07:
And I think those are not a separate—that doesn't add a separate element that what the government calls bank robbery is taken by force.

[01:44:51] Speaker 05:
When you say extortion is defined, you're talking about what the— In the legislative history, yes.

[01:44:56] Speaker 05:
Yeah, because the statute doesn't define it at all, right?

[01:44:59] Speaker 07:
Yes.

[01:45:03] Speaker 02:
Okay.

[01:45:04] Speaker 02:
Thank you, counsel.

[01:45:05] Speaker 02:
Mr. Smith will give you two minutes as well.

[01:45:08] Speaker 07:
Actually, I'm so sorry.

[01:45:09] Speaker 07:
Can I make one final point?

[01:45:10] Speaker 02:
Okay, briefly.

[01:45:11] Speaker 07:
Yeah.

[01:45:15] Speaker 07:
There was a discussion of Lenity and what way Lenity cuts here.

[01:45:18] Speaker 07:
I don't think this court needs to look to Lenity because the

[01:45:24] Speaker 07:
The law governing divisibility itself without turning to Lenity says if we don't know what the answer is, the government loses and the defendant wins.

[01:45:32] Speaker 08:
It wasn't clear to me, I was thinking about that too myself, because I had the impression that there was such a divisibility specific presumption, but then when I just as we're sitting here went back and looked at this, it wasn't clear to me whether that was being articulated as an application of Lenity or something else.

[01:45:52] Speaker 02:
And what is that from Mathis or where is that from?

[01:45:54] Speaker 07:
It's from Mathis and then it's repeated in a number of other decisions and also from circuit courts.

[01:46:05] Speaker 02:
Mathis invokes Taylor, right?

[01:46:06] Speaker 02:
That's the part.

[01:46:07] Speaker 02:
Yes.

[01:46:07] Speaker 07:
And I would just note that whether it's coming from Lenity or not, it's clear that the Supreme Court has told us that there is this presumption, regardless of whether, to the point discussed earlier, it's sort of cutting both ways at some point.

[01:46:22] Speaker 02:
And that applies at the front end at the unanimity stage, too, then?

[01:46:26] Speaker 02:
The same presumption?

[01:46:27] Speaker 08:
Which presumption?

[01:46:28] Speaker 02:
You'd have to work against the same presumption if you were asking for a unanimity instruction?

[01:46:31] Speaker 08:
In the same case.

[01:46:33] Speaker 08:
Yes.

[01:46:37] Speaker 02:
All right.

[01:46:38] Speaker 02:
Thank you, Council.

[01:46:40] Speaker 02:
Mr. Smith will give you 2 minutes.

[01:46:44] Speaker 06:
Thank you very much.

[01:46:45] Speaker 06:
You've been generous with your time.

[01:46:46] Speaker 06:
I'll try to be brief.

[01:46:48] Speaker 06:
Government denies that it's de novo.

[01:46:50] Speaker 06:
I'm reading straight from page 38 of their brief.

[01:46:52] Speaker 06:
This is in the Rosemont section.

[01:46:54] Speaker 06:
Quote, in reviewing the denial of a 2255 motion, the government reviews the district court's legal conclusions, including issues of procedural default de novo.

[01:47:06] Speaker 06:
from their brief, page 38, Rosemont section.

[01:47:11] Speaker 06:
He also said that someone outside the bank, a bank guard, said everybody came out with guns based on supplemental appendix page three, reading from what was actually said, oh, I was standing out front, a van pulled up, somebody pushed the door back, two guys came out with guns, pushed me in the bank, et cetera.

[01:47:31] Speaker 06:
Not everybody, not specific to Mr. Burwell.

[01:47:35] Speaker 08:
I just want to give you an opportunity to respond also to the detainees testimony.

[01:47:41] Speaker 08:
We said it was very important for everybody to have a gun.

[01:47:44] Speaker 08:
Everybody wanted a gun and he enumerated in great detail that the various guns were passed out and that there was not no unarmed member of the group.

[01:47:52] Speaker 06:
All I can say there is, first of all, as Henry said, the Rosemont error diverted the party's presentations away from the key issues.

[01:48:01] Speaker 06:
There weren't cross-examination questions asked to Shatano because nobody knew that it was relevant.

[01:48:06] Speaker 06:
This is a single witness case.

[01:48:08] Speaker 06:
It was not overwhelming evidence.

[01:48:10] Speaker 06:
There were no bank videos showing my client with a gun, no positive idea of him with a firearm in the bank, no DNA of my client was found on any guns, only on the vest.

[01:48:21] Speaker 06:
not on any of the guns.

[01:48:23] Speaker 06:
The earlier Chevy Chase Bank robbery wasn't identical and my client as a first timer wouldn't necessarily have known of any routine.

[01:48:31] Speaker 06:
The properly instructed jury could have found an absence of a beyond a reasonable doubt standard here, especially since it took 14 days of deliberations.

[01:48:41] Speaker 06:
The evidence that my client of either having a firearm himself or having foreknowledge wasn't overwhelming.

[01:48:51] Speaker 06:
It was based on the word of one man, a man who was a cooperator, a man who was the leader, turning down on lesser players like my client, and where the teller had pointed him as the one with the two-handled weapon that was the machine gun.

[01:49:09] Speaker 06:
He was the one that had the machine gun in his hands, according to the teller.

[01:49:13] Speaker 06:
And then he turned on my client, down on my client.

[01:49:16] Speaker 06:
And now my client, the minion, has served more than a decade, more than Shatani did in jail, and he has another 15 years ahead unless you act.

[01:49:26] Speaker 06:
Please act.

[01:49:27] Speaker 06:
My client was a 26-year-old kid, never incarcerated before in his life when he made this horrible mistake in 2004.

[01:49:36] Speaker 06:
He's now 46 years old.

[01:49:39] Speaker 06:
He has 15 more years ahead in prison.

[01:49:43] Speaker 06:
unless you do something.

[01:49:45] Speaker 06:
Congress did not say that an extra 15 years clearly was required, and the jury instructions that led to that conviction and that sentence were erroneous under Rosemont.

[01:49:58] Speaker 06:
We appreciate the Court's time.

[01:49:59] Speaker 02:
Thank you.

[01:50:00] Speaker 02:
Mr. Earnest.

[01:50:00] Speaker 02:
Thank you, counsel.

[01:50:01] Speaker 02:
Thank you to all counsel.

[01:50:03] Speaker 02:
Mr. Smith, you are appointed by the Court to represent one of the appellants in this matter, and the Court thanks you for your assistance.

[01:50:09] Speaker 02:
We'll take this case under submission.