[00:00:01] Speaker 03:
Morning, counsel.

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

[00:00:04] Speaker 00:
I'm Jay Lickman for Mr. Johnson.

[00:00:08] Speaker 00:
I asked for four minutes of rebuttal.

[00:00:12] Speaker 00:
All right.

[00:00:12] Speaker 00:
That's permissible.

[00:00:15] Speaker 00:
We raised two main arguments, and they're both based on the Pinkerton instructions.

[00:00:25] Speaker 00:
By the way, Your Honor asked about the

[00:00:29] Speaker 00:
location of the Pinkerton instructions.

[00:00:33] Speaker 00:
This is on page six of our reply brief.

[00:00:36] Speaker 00:
Instructions 12, 13, 14, 18, and 19.

[00:00:41] Speaker 00:
There were five Pinkerton instructions.

[00:00:44] Speaker 04:
My question was just to be clear, which one or ones you're challenging.

[00:00:49] Speaker 00:
We're not disputing that.

[00:00:53] Speaker 00:
There's a difference between whether Pinkerton can be used to

[00:00:58] Speaker 00:
find someone guilty of robbery based on his involvement in conspiracy.

[00:01:04] Speaker 00:
It's a different question whether Pinkerton robbery can be a 924C predicate under a categorical analysis.

[00:01:15] Speaker 00:
Those are two different things, two different questions.

[00:01:19] Speaker 00:
The Henry issue

[00:01:22] Speaker 00:
that I'd like to discuss is whether Hobbs Act robbery based on Pinkerton is categorically a crime of violence.

[00:01:33] Speaker 00:
And we would submit that it's not a valid crime of violence predicate

[00:01:40] Speaker 00:
under Taylor and Borden, and also under Gomez that was recently decided this year.

[00:01:47] Speaker 00:
So let me get back.

[00:01:49] Speaker 00:
There's two main issues here.

[00:01:51] Speaker 00:
Whether, number one, the district court committed instructional error by permitting the jury to convict the defendant of 924C based on Hobbs Act conspiracy.

[00:02:03] Speaker 00:
Because as the court pointed out previously,

[00:02:06] Speaker 00:
In the other case, there was a general verdict.

[00:02:11] Speaker 00:
So it wasn't clear whether the jury based its finding on the invalid conspiracy predicate or whether it based it on the robbery predicate.

[00:02:25] Speaker 00:
And I'll get to your question previously about this harmless era, which seems to be what was litigated in the briefs.

[00:02:36] Speaker 00:
The second issue relates to whether categorically Hobbs Act robbery is a valid predicate.

[00:02:45] Speaker 00:
So referring now to the instructional era, the instructional era was permitting or giving the five Pinkerton instructions and letting Mr. Johnson be convicted based on the conspiracy, as long as the use of the gun was foreseeable.

[00:03:09] Speaker 00:
The era was not harmless.

[00:03:12] Speaker 00:
because we submit that the main proof of conspiracy was the testimony of Veronica Burgess that several days before the robbery Mr. Johnson was at a planning meeting and the government in closing both in the opening closing and the final closing

[00:03:33] Speaker 00:
referred to the Burgess testimony, noting there's been a lot of talk about Veronica Burgess.

[00:03:39] Speaker 00:
And then immediately following the argument about Burgess, the government cites the Pinkerton theory, whether that a defendant or a member of the conspiracy can be found guilty of robbery or the use of the firearm.

[00:03:58] Speaker 04:
We understand that her testimony, it sounds like, was very thoroughly impeached.

[00:04:04] Speaker 04:
The district court thought he had a valid predicate, as we've just discussed.

[00:04:10] Speaker 04:
The district court also ruled that there was other evidence of conspiracy, apart from Burgess, including just the way the robbery was obviously a coordinated effort.

[00:04:22] Speaker 04:
What about that?

[00:04:24] Speaker 00:
Well, Burgess was the only event that occurred before the day of the robbery.

[00:04:31] Speaker 00:
And so the other parts, the overt acts and the conspiracy, related to what happened on the day of the robbery, getting the car ready, getting the guns ready, et cetera.

[00:04:42] Speaker 00:
But because in this case, the instructions were

[00:04:49] Speaker 00:
inundated by Pinkerton.

[00:04:51] Speaker 00:
And because the government referred to these Pinkerton instructions and because they emphasized Burgess' testimony, it may well have been that the jury convicted Mr. Johnson of all of the counts, robbery and the gun count, based on

[00:05:07] Speaker 00:
their conclusion was part of the conspiracy, meaning he was at the planning meeting several days before the robbery.

[00:05:13] Speaker 04:
Even if they did that, would it require that they believed Burgess's testimony?

[00:05:19] Speaker 04:
Are you arguing that they weren't free to do that?

[00:05:23] Speaker 00:
No, the jury may have, and that's the problem here, because if the jury— They did, and maybe they didn't.

[00:05:28] Speaker 04:
We don't know.

[00:05:29] Speaker 00:
That's right.

[00:05:30] Speaker 04:
But she wasn't the only evidence of conspiracy, is my point, and that's what the district court relied upon.

[00:05:34] Speaker 00:
Right, but we're looking factually whether there was harmless error in giving the invalid instruction.

[00:05:40] Speaker 00:
And the jury may have convicted Mr. Johnson of both robbery and the gun count based on their belief that he was guilty of conspiracy, even though they didn't conclude he was actually one of the robbers.

[00:05:54] Speaker 01:
So what evidence would the jury be relying on to find use of a firearm in furtherance of the conspiracy but not the robbery?

[00:06:02] Speaker 00:
Well, let's look at what evidence was introduced against Mr. Johnson at the trial to see whether the effect that that conspiracy theory may have had.

[00:06:18] Speaker 00:
In other words, whether being found guilty of the substantive crimes based on

[00:06:26] Speaker 00:
being part of the planning meeting and not being an actual robber.

[00:06:30] Speaker 00:
So you need to look at the other evidence that was introduced in the case to see whether there was harmless error.

[00:06:38] Speaker 00:
And if you look at the other evidence, there was eyewitness evidence that tended to

[00:06:49] Speaker 00:
point more to innocence than to guilt because of the descriptions given by these eyewitnesses of the robber being shorter than Mr. Johnson, less weight than Mr. Johnson, a thinner nose.

[00:07:02] Speaker 00:
So if anything, the eyewitness testimony was minimal.

[00:07:05] Speaker 01:
But for the, I guess, assuming we are bound by Henry, you have to establish that the jury convicted on conspiracy, that the jury viewed as the predicate for 924, the conspiracy, and not the Pinkerton or the robbery itself.

[00:07:27] Speaker 01:
Is that right?

[00:07:29] Speaker 00:
Well, I think that clearly conspiracy was an invalid predicate.

[00:07:37] Speaker 00:
We contend that.

[00:07:38] Speaker 01:
But for the harmless error, that somehow the jury convicted used, improperly used the conspiracy as a predicate, but not the Pinkerton theory or the robbery itself.

[00:07:53] Speaker 00:
OK, robbery itself, which was decided in Eckford, we have presented arguments in our briefs that you, and also Mike Williams' counsel has presented arguments in the briefs that the court might want to take another look at.

[00:08:12] Speaker 00:
at the Eckford.

[00:08:13] Speaker 01:
Right, and I'm not intending to quarrel with you, but is that right in terms of logically that the jury would have had to have been incorrectly relying on only the conspiracy predicate and not either of the other two for you to win?

[00:08:27] Speaker 00:
Well, we contend that to convict of Mr. Johnson of robbery based on a Pinkerton theory

[00:08:41] Speaker 00:
You have to look at it categorically.

[00:08:45] Speaker 00:
Whether categorically, robbery pursuant to Pinkerton is a crime of violence.

[00:08:52] Speaker 04:
Because you're- But sir, I think we understand that.

[00:08:55] Speaker 04:
I think Judge Johnson's trying to ask a different question.

[00:08:58] Speaker 04:
Do you have authority now that cuts against you on Pinkerton, which is Henry?

[00:09:02] Speaker 04:
And you have authority on Hobbs Act robbery that cuts against you.

[00:09:05] Speaker 04:
And I think you've acknowledged that and also been very careful to preserve your argument.

[00:09:09] Speaker 04:
But what I understood you to be saying today is they may have convicted your client slowly on the conspiracy count.

[00:09:16] Speaker 04:
And so I think what we're trying to probe is how would that look?

[00:09:20] Speaker 04:
Because the district court considered that, and the district court considered that it made no sense that your client would have used a firearm only in the furtherance of the conspiracy rather than the robbery.

[00:09:29] Speaker 00:
Yeah, I didn't actually didn't understand the district court's reasoning.

[00:09:33] Speaker 00:
You don't use a gun, and a conspiracy is an agreement, so you don't use a gun during an agreement.

[00:09:43] Speaker 00:
You're asking the question of whether Hobbs Act robbery based on Pinkerton, whether that's a crime of violence.

[00:09:51] Speaker 00:
Because we're not asking.

[00:09:53] Speaker 04:
This is a different question.

[00:09:54] Speaker 01:
This is a harmless error.

[00:09:56] Speaker 01:
We're trying to get to this is the harmless error question.

[00:09:58] Speaker 01:
Are you not then arguing that the jury found its predicate in the conspiracy and not on these other two grounds that our court has said are sufficient?

[00:10:13] Speaker 00:
I'm arguing that the jury may have found Mr. Johnson guilty of robbery and 924C based on its conclusion that he was a conspirator, but not necessarily that he was actually one of the robbers.

[00:10:28] Speaker 04:
Right.

[00:10:29] Speaker 04:
So right there, that's what we understood.

[00:10:31] Speaker 04:
I think it sounds like Judge Johnson and I both understood that from your briefing.

[00:10:34] Speaker 04:
And I think the district court understood that.

[00:10:36] Speaker 04:
And he was even willing to say, let's assume that count one instruction was error.

[00:10:41] Speaker 04:
and the jury misunderstood that and I think the government argued that the that the jury could have relied on a conviction under count one conspiracy to serve as the predicate and what what the district court I understood his order to be saying is that really would make no sense a nine to four C

[00:10:59] Speaker 04:
that they would have convicted your client beyond a reasonable amount of using a gun in furtherance of an oral agreement of a conspiracy, a standalone conspiracy without it being, you know, looking to count to conspiracy to rob the armored truck.

[00:11:14] Speaker 04:
It really just doesn't seem to make much sense at all.

[00:11:17] Speaker 04:
And that's what I understood the district court to be saying.

[00:11:20] Speaker 00:
I don't think the district court, the district court also I think discussed whether there was other evidence introduced.

[00:11:30] Speaker 00:
to make the instructional error harmless by saying that, well, they likely convicted him of being a robber.

[00:11:46] Speaker 00:
And so it nullified the effect of the invalid conspiracy violation.

[00:11:53] Speaker 00:
But I'm saying that there really wasn't that much evidence against Mr. Johnson

[00:12:00] Speaker 00:
in terms of what was introduced to show he was a robber.

[00:12:03] Speaker 04:
If you're going to do the factual analysis, that would be helpful to run through that.

[00:12:08] Speaker 04:
Jamal Dundegan testified, right, about having spoken to Mr. Johnson.

[00:12:14] Speaker 04:
And then Mr. Johnson apparently told him that his foot was wrapped because he shot himself in the foot on that day.

[00:12:20] Speaker 04:
And there was DNA evidence from that.

[00:12:27] Speaker 00:
OK, let me, if I could, first of all, answer your question directly.

[00:12:35] Speaker 00:
I'm done again.

[00:12:36] Speaker 00:
And we argued IAC claims, uncertified claims.

[00:12:43] Speaker 00:
But in denying the IAC on Dunigan, the district court said that there was no prejudice under Strickland because Dunigan was impeached at trial.

[00:12:55] Speaker 00:
So the district court actually found he had been impeached.

[00:12:59] Speaker 00:
And there was plenty of evidence impeaching him.

[00:13:03] Speaker 00:
And also,

[00:13:05] Speaker 04:
In in the um, I'm sort of opposing counsel's point if we're going to have this conversation It would be helpful to me to hear your response to opposing counsel, which the dunnigan knew details.

[00:13:14] Speaker 04:
He wouldn't have known like the amount of money, for example

[00:13:19] Speaker 04:
that was taken in the robbery.

[00:13:20] Speaker 04:
What about that?

[00:13:21] Speaker 04:
In other words, the jury could have said, this guy's impeached.

[00:13:23] Speaker 04:
We have a lot of reason to doubt this person's credibility generally.

[00:13:27] Speaker 04:
But his story on this episode rings true because he knew about these details.

[00:13:33] Speaker 04:
That's the government's theory.

[00:13:35] Speaker 04:
What about that?

[00:13:36] Speaker 00:
Well, these are gang members.

[00:13:38] Speaker 00:
Donegan was the head of the gang.

[00:13:40] Speaker 00:
When things happen, like a robbery, work gets out in the neighborhood among the gang members.

[00:13:49] Speaker 00:
And since he had a lot of pull in the gang, he could have easily found out information.

[00:13:57] Speaker 04:
What about the DNA evidence?

[00:13:58] Speaker 00:
Okay, let me talk about that, Your Honor.

[00:14:02] Speaker 00:
We're talking about one hair that matched Mr. Johnson, according to the criminalist's testimony.

[00:14:10] Speaker 00:
There were other hairs found in the wig or hat, however you want to refer to it, which were hairs of other people.

[00:14:21] Speaker 00:
There were even some animal hairs.

[00:14:23] Speaker 04:
But this match was a one in 100 quadrillion match.

[00:14:27] Speaker 00:
I understand.

[00:14:28] Speaker 00:
But there were, we're talking now, of course, like I said, about one hair.

[00:14:36] Speaker 04:
I think it's four hairs.

[00:14:37] Speaker 00:
They tested the four hairs and they matched one hair to Mr. Johnson.

[00:14:43] Speaker 00:
But as their criminalists said or testified, you can't tell how long the hair was in the hat.

[00:14:52] Speaker 00:
You can't tell what body, what part of the body the hair came from.

[00:14:56] Speaker 00:
They talked about hair being transient, that it could be transferred from the original source to a subsequent source.

[00:15:07] Speaker 00:
And perhaps most important, they talk about where is DNA.

[00:15:12] Speaker 00:
This is criminalist Mastrocovo.

[00:15:15] Speaker 00:
He said, where is DNA is the most accurate way of determining whether someone wore a hat.

[00:15:23] Speaker 00:
And so what he did was he cut a patch out of the front of the hat to test it to see if there was a match to Mr. Johnson on the wearer's DNA.

[00:15:34] Speaker 00:
And he could not make a determination as to the DNA.

[00:15:39] Speaker 00:
So then three and a half years later, right before trial,

[00:15:43] Speaker 00:
The government asked him to do it again, to test again.

[00:15:46] Speaker 00:
And again, he said he could not find any connection to Mr. Johnson in that.

[00:15:52] Speaker 00:
So I would say, at best, the hair evidence or the DNA evidence was at least inconclusive as to Mr. Johnson because of all these other factors about whether, in fact, it was warned at the time of the robbery.

[00:16:11] Speaker 00:
So this is summing up.

[00:16:14] Speaker 00:
You've got eyewitness testimony that's helpful.

[00:16:19] Speaker 00:
more helpful to Mr. Johnson, you have inclusive DNA testimony, and then you have the so-called snitches being impeached.

[00:16:28] Speaker 00:
So there wasn't much left in terms of trial evidence, which shows then that the instructional era was not harmless.

[00:16:39] Speaker 00:
With my time running out, let me just... You've exceeded your time, counsel.

[00:16:43] Speaker 03:
I'll give you a minute for rebuttal.

[00:16:45] Speaker 03:
You've exceeded your time.

[00:16:46] Speaker 03:
When it's in the red, that means you've gone over your time.

[00:16:49] Speaker 03:
Oh, I'm sorry.

[00:16:49] Speaker 03:
That's all right.

[00:16:50] Speaker 03:
OK, so I'll give you a minute for rebuttal.

[00:16:53] Speaker 03:
OK.

[00:16:55] Speaker 03:
Thank you.

[00:17:07] Speaker 02:
Good morning, Your Honor.

[00:17:08] Speaker 02:
Saria Bahadur on behalf of the United States.

[00:17:11] Speaker 02:
I'll focus on the harmless error analysis, but I think to Judge Johnstone's question, I do think that to prevail, they would have to show, it is our burden in this circuit, but there has to be a showing that the jury solely relied on the invalid predicate, and the district court was correct to dismiss that idea.

[00:17:32] Speaker 02:
And this district judge was the one who sat in on the trial.

[00:17:36] Speaker 02:
and had sort of a front row seat at the credibility of not just the cooperators but every government witness and also defense witnesses and the district court was coming from that perspective when it said

[00:17:48] Speaker 02:
that for the jury to have relied on the shaky Burgess testimony, which again wasn't actually a real live witness, it was mainly from law enforcement witnesses and the reading of a grand jury testimony, which does not have the same effect as a real live witness, but to rely on that shaky evidence, which is what the district judge characterized it as, and just disregarded the strong evidence incriminating the defendant, he said, would stretch the bounds of rationality.

[00:18:15] Speaker 02:
And I think that's the answer for this court from the district judge who was sitting in on the trial.

[00:18:21] Speaker 02:
And there was very strong evidence incriminating this defendant as one of the shooters.

[00:18:26] Speaker 02:
And this court actually said that in the direct appeal in this case.

[00:18:30] Speaker 02:
And it relied on the DNA.

[00:18:32] Speaker 02:
And the DNA, whether it was 12 hairs that were found on the hat, eight of them were subject to microscopy, which is not the same as DNA.

[00:18:42] Speaker 02:
testing, four were subject to DNA testing, three of them did not have a root that was amenable to the DNA testing, and then one generated that 1 in 100 quadrillion match.

[00:18:55] Speaker 04:
What do we make of this?

[00:18:56] Speaker 04:
It's peculiar, and I don't mean to go down this rabbit hole, but about the

[00:19:03] Speaker 04:
About the, yeah, Jamal.

[00:19:06] Speaker 04:
Dunigan.

[00:19:07] Speaker 04:
Dunigan, thank you, testifying that Johnson said he shot himself in the foot.

[00:19:12] Speaker 04:
There's other indications about him shooting himself in the foot.

[00:19:14] Speaker 04:
There's no evidence about bloody footprints anywhere.

[00:19:17] Speaker 04:
Jamal Dunigan said that Johnson had wrapped his foot on the day that he'd seen him.

[00:19:24] Speaker 04:
And then, I think, quite an extended period of time later, maybe even years later, medical examinations indicating there's no sign that

[00:19:31] Speaker 04:
foot was ever injured in that way and that had it been injured in that way and you know there should be some evidence of it.

[00:19:38] Speaker 04:
It seems very peculiar.

[00:19:39] Speaker 02:
I think so too I mean it's a strange detail as well the idea of shooting yourself in the foot I mean there wasn't really evidence when that happened right if that happened at the scene of the robbery.

[00:19:50] Speaker 04:
That he shot himself in the foot.

[00:19:51] Speaker 02:
As he was fleeing I think.

[00:19:53] Speaker 04:
as he was fleeing.

[00:19:55] Speaker 02:
Sure, but I don't know if it was, I mean, this was a, I think one of the detectives testified was one of sort of the largest crime scenes.

[00:20:01] Speaker 04:
Hence the lack of bloody footprint.

[00:20:03] Speaker 04:
It could have been some distance away.

[00:20:05] Speaker 02:
That's what I'm saying.

[00:20:06] Speaker 02:
But there wasn't necessarily evidence to that point.

[00:20:08] Speaker 02:
I think one of the more important details of that testimony is that

[00:20:11] Speaker 02:
when he was asked sort of what he shot himself with or that the main detail was the MAC and that MAC firearm was something that an eyewitness had actually identified as the wig wearing robber as the weapon the wig wearing robber was carrying which is quite remarkable.

[00:20:28] Speaker 02:
Also there were two I think bullets or casings

[00:20:32] Speaker 02:
from that were extracted from the armor guards body armor that came from a MAC nine millimeter gun and a MAC was also recovered in the end.

[00:20:42] Speaker 02:
So I think that detail is probably the more poignant one and the jury heard evidence on both sides as to the foot and decided.

[00:20:50] Speaker 04:
Did they hear the evidence about the maybe he shot himself in the foot and the medical evidence about the examination?

[00:20:57] Speaker 02:
It did.

[00:20:58] Speaker 02:
I think the defense put that evidence on.

[00:21:00] Speaker 02:
And I think our answer was it doesn't necessarily mean just because you shot yourself in the foot that you have to go to the hospital.

[00:21:06] Speaker 02:
And maybe that I think one of the cooperators testified that they don't necessarily always go to the hospital when they shoot themselves in the foot.

[00:21:13] Speaker 02:
Sure.

[00:21:14] Speaker 04:
Perhaps not if they've just committed an armed robbery.

[00:21:17] Speaker 02:
Exactly.

[00:21:17] Speaker 02:
It's the implication.

[00:21:18] Speaker 04:
And I'm not trying to be flip.

[00:21:19] Speaker 04:
I'm just really trying to understand some of the evidence.

[00:21:22] Speaker 02:
For sure.

[00:21:23] Speaker 04:
And I think in both briefs, but in different places,

[00:21:26] Speaker 04:
Since you just mentioned the burden of proof when you advised the government's position is that we're on the wrong side of a circuit split, since you have a minute, do you want to explain your position on that?

[00:21:36] Speaker 02:
I think when you look at Brecht, Brecht specifically talks about how the defendant has to show actual prejudice, and I think that that's where the government is coming from.

[00:21:45] Speaker 02:
Since Brecht set up that standard of harmless error analysis,

[00:21:49] Speaker 02:
and it specifically said that it's gotta be this substantial and injurious effect, but really the defendant has to show actual prejudice.

[00:21:57] Speaker 02:
We think that that's why it's coming from.

[00:21:58] Speaker 04:
Are you familiar with more, this is not what this case is about.

[00:22:02] Speaker 02:
Okay, I'll try.

[00:22:03] Speaker 04:
Are you familiar with the subsequent Supreme Court authority that talks about what it meant is that the bar is actually very, very low, but the government has the burden, but it's easy to get over?

[00:22:14] Speaker 02:
In this particular context?

[00:22:18] Speaker 02:
Well, yes, in a way.

[00:22:19] Speaker 02:
I think one of the Fourth Circuit decisions talks about this, whether it's, I think it's Said or Ali, but they talk about sort of the differing standards, sufficiency, and then plain error, and then you have harmless error, which is sort of very, very steep for the defendants, but low for the government when it's coming to how deferential this court is supposed to be.

[00:22:39] Speaker 02:
And I think it's actually tied to habeas generally.

[00:22:41] Speaker 04:
I think it's tied to habeas generally.

[00:22:43] Speaker 04:
I think this isn't the day we're going to have this conversation, but I look forward to it.

[00:22:47] Speaker 04:
I don't think it's going to make the difference in this case, but I did appreciate your calling out that issue.

[00:22:52] Speaker 04:
I'm sure that'll come to us one day.

[00:22:53] Speaker 02:
Yes, I think so.

[00:22:54] Speaker 02:
I mean, I do want to add just a couple of other tidbits on the evidence factually.

[00:22:59] Speaker 02:
I do think that

[00:23:00] Speaker 02:
You know, in terms of the witnesses and the specific heights, one of the witnesses actually identified the defendant from a six-pack as the wig-wearing robber.

[00:23:10] Speaker 02:
Johnson.

[00:23:11] Speaker 02:
Yes.

[00:23:11] Speaker 02:
And that's the witness gains.

[00:23:14] Speaker 02:
Again, talking about what they saw as the robbers ran past, the gardeners, the two bullets from the dead guard's body armor, and of course, the cooperator's testimony.

[00:23:24] Speaker 02:
And I think, you know, if you look at Reed, there the court affirmed because

[00:23:30] Speaker 02:
The 924c verdict necessarily rested on both predicates and I really think that that's what this case also shows that factually the predicates are inextricably intertwined and even legally even if you even if the jury thought maybe this purchase evidence has some weight and he was just a planner

[00:23:48] Speaker 02:
and he's talking about bringing guns to an armed robbery and doesn't actually participate, he's still going to be guilty, charged and then guilty of substantive Hobbs Act robbery under a Pinkerton theory of liability.

[00:23:59] Speaker 02:
And I think counsel mentioned Gomez and Borden and Taylor, none of those cases really address head on Pinkerton liability.

[00:24:07] Speaker 02:
And in that particular context, those cases are not clearly reconcilable with Henry, specifically.

[00:24:17] Speaker 04:
You know, I think that's right.

[00:24:18] Speaker 04:
I am troubled that the government changed its theory from 2255 to actually all the way through.

[00:24:27] Speaker 04:
And this Pinkerton issue is a new issue raised now on appeal.

[00:24:33] Speaker 04:
And so I'd like to give you a chance to talk about why you think the opposing council has not been prejudiced by this.

[00:24:40] Speaker 02:
By what in particular?

[00:24:43] Speaker 04:
Well, you're changing your theory.

[00:24:45] Speaker 04:
In terms of the instructional?

[00:24:47] Speaker 04:
Your position, the government's position, was that there had been error, but it was harmless.

[00:24:51] Speaker 04:
And now your position is that there really wasn't instructional error at all.

[00:24:55] Speaker 02:
I don't think that the defense has been prejudiced at all.

[00:24:58] Speaker 02:
I mean, I think his point is that there were a lot of Pinkerton instructions, and I think he probably would want there to be a Pinkerton instruction with respect to Hobbs Act robbery, because that's the point.

[00:25:09] Speaker 04:
So his argument really encompasses, the springboard is the premise for your response, it seems.

[00:25:18] Speaker 04:
I think so.

[00:25:19] Speaker 04:
Typically, we wouldn't allow the government to do this.

[00:25:21] Speaker 04:
Well, they are different.

[00:25:23] Speaker 02:
Sure.

[00:25:23] Speaker 02:
And I think they're different cases, you know, and we brief them separate.

[00:25:27] Speaker 02:
They weren't consolidated and they probably should have been because that would have made it much easier to make sure we were staying as consistent as possible.

[00:25:33] Speaker 04:
But you're raising the yeah, I appreciate your point.

[00:25:36] Speaker 04:
There are two different cases, but the briefing says that you've given

[00:25:40] Speaker 04:
opposing counsel notice in both cases that you're this is going to be the government's position and I think you did that before you filed they filed their reply briefs and I think they had an opportunity to respond but I just to be clear I think you have changed the government's changed in

[00:25:53] Speaker 04:
and now is advancing the same Pinkerton position in both cases, is it not?

[00:25:57] Speaker 02:
I mean, I'm not sure.

[00:25:58] Speaker 02:
I want to make sure I understand the Pinkerton position.

[00:26:01] Speaker 02:
So we are simply saying that when you really look closely at the instructional error, it does appear that it was just a Pinkerton instruction.

[00:26:07] Speaker 02:
So there wasn't an error.

[00:26:08] Speaker 02:
Wasn't an error, right.

[00:26:09] Speaker 02:
Well, wasn't a substantial and injurious error.

[00:26:12] Speaker 02:
that it needs to be.

[00:26:13] Speaker 02:
Because I take your point, I take the court's point, we did proceed at trial and on the 2255 as if there was an error, which is why in our brief we were short on this particular point and really focused on whether or not the error was harmless because we recognize that that's how everybody proceeded below.

[00:26:30] Speaker 02:
And the government, when it talked about enclosing the two predicates, I will say it talks about conspiracy.

[00:26:36] Speaker 02:
And if you really look through the closing, I controlled find a couple times to make sure

[00:26:40] Speaker 02:
We don't mention reasonable foreseeability whatsoever.

[00:26:43] Speaker 02:
I've done the same exercise.

[00:26:46] Speaker 04:
And I've read it the same way that was not the way this case was argued.

[00:26:49] Speaker 02:
Right.

[00:26:49] Speaker 02:
And I think in the end of the day, as we mentioned in the earlier case, it does come out in the wash.

[00:26:54] Speaker 02:
Because I think the court will, I think it's best to go to the harmless error analysis and to really ensure that at the end of the day that there wasn't this type of error that was substantial and injurious for these defendants.

[00:27:09] Speaker 02:
And unless the court has any additional questions, I'm happy to submit.

[00:27:13] Speaker 03:
It appears not.

[00:27:14] Speaker 03:
Thank you, counsel.

[00:27:14] Speaker 02:
Thank you.

[00:27:15] Speaker 02:
We ask that the court affirm.

[00:27:16] Speaker 03:
Thank you.

[00:27:18] Speaker 03:
Rebuttal, one minute, please.

[00:27:23] Speaker 00:
I'll be very brief.

[00:27:25] Speaker 00:
The new theory of the government was not briefed in Johnson, and so we objected on the grounds that the government waived the argument because they didn't contain it in their briefs.

[00:27:37] Speaker 00:
The other point I'd like to make very quickly

[00:27:41] Speaker 00:
is this question of whether conviction for Hobbsack robbery, whether Hobbsack robbery under a Pinkerton analysis is categorically a crime of violence.

[00:27:54] Speaker 00:
We argue it's not.

[00:27:56] Speaker 00:
And helpful, I think, you have to look at other cases that have found no crime of violence, such as conspiracy to commit Hobbsack robbery under Reed, not a crime of violence, attempted Hobbsack robbery under Taylor,

[00:28:11] Speaker 00:
not a crime of violence.

[00:28:13] Speaker 00:
California assault with a deadly weapon, not a crime of violence under Gomez and Borden.

[00:28:19] Speaker 00:
And the reason that these are not crimes of violence is because they can be, in every case, that particular crime, it has to be always, and it has to be in the most innocent case.

[00:28:37] Speaker 00:
It's not an intentional,

[00:28:40] Speaker 00:
infliction of a physical violent act.

[00:28:44] Speaker 00:
And therefore, the courts have found in those cases there's no categorical match to a crime of violence.

[00:28:51] Speaker 00:
Robbery under a Pinkerton theory is the same thing.

[00:28:56] Speaker 00:
You can commit robbery under Pinkerton without the defendant ever committing a violent act.

[00:29:02] Speaker 00:
In fact, he doesn't even have to be present at the robbery.

[00:29:05] Speaker 00:
He can be at a planning meeting, for example.

[00:29:09] Speaker 00:
It's not consistent in terms of the reasoning of Taylor and Borden that Henry should stand.

[00:29:21] Speaker 00:
And Henry, of course, was decided before these cases, before Taylor and Gomez and Borden.

[00:29:28] Speaker 00:
And so at the time that Henry was decided, the law was what it was.

[00:29:34] Speaker 00:
But then these cases came after Henry, and the reasoning of those cases, just Henry doesn't square with that reasoning.

[00:29:43] Speaker 00:
All right.

[00:29:44] Speaker 03:
Thank you, counsel.

[00:29:45] Speaker 00:
Thank you very much.

[00:29:45] Speaker 03:
We understand your argument.

[00:29:46] Speaker 03:
Thank you to both counsel for your helpful arguments.

[00:29:49] Speaker 03:
The case just argued is submitted for decision by the court.