[00:00:00] Speaker 04:
Please be seated.

[00:00:00] Speaker 04:
Thank you, Madam Clerk.

[00:00:01] Speaker 04:
Please be seated.

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

[00:00:06] Speaker 04:
Good morning and welcome to the Ninth Circuit Court of Appeals.

[00:00:09] Speaker 04:
My name is Morgan Christen.

[00:00:10] Speaker 04:
I'm one of the judges on the circuit court.

[00:00:13] Speaker 04:
My chambers are in Anchorage, Alaska.

[00:00:15] Speaker 04:
I'm sitting today with Judge Tsushima, whose chambers are here, right here in Pasadena, and Judge Van Dyke, who has chambers in ... Reno.

[00:00:22] Speaker 04:
Reno.

[00:00:23] Speaker 04:
I always want to say Las Vegas.

[00:00:25] Speaker 04:
Reno.

[00:00:27] Speaker 04:
I just have a little bit of housekeeping, so I'll try to do this quickly.

[00:00:31] Speaker 04:
I need to say for the record that there were two cases submitted on the briefs yesterday.

[00:00:36] Speaker 04:
Monday, June 10th.

[00:00:37] Speaker 04:
They are United States versus Johnson, 23-574, and PhotoFixit Pro versus Costco wholesale, 23-55548.

[00:00:47] Speaker 04:
For the cases on today's calendar, June 11th, we have three submitted cases.

[00:00:55] Speaker 04:
For the record, they are Larios Quiera versus Garland, 21-70892, Acosta Ochoa versus Garland, 22-1464,

[00:01:06] Speaker 04:
and Carrillo Velasquez versus Garland, which is 23158, which brings me to the first case on the oral argument calendar, United States versus Patterson, 22-50287.

[00:01:18] Speaker 04:
And Council, if you just give me one more minute, you can come right on up to the podium.

[00:01:24] Speaker 04:
I just have to get my iPad and stuff situated here.

[00:01:40] Speaker 02:
Okay, I'm ready.

[00:01:41] Speaker 02:
All right.

[00:01:43] Speaker 02:
Good morning, Your Honors, and may it please the Court, Laura Schaefer from the Office of the Federal Public Defender on behalf of Appellant Derrick Patterson.

[00:01:52] Speaker 02:
I'd like to reserve three minutes of time, and I'll keep an eye on the clock.

[00:01:56] Speaker 02:
Great.

[00:01:58] Speaker 02:
Thanks.

[00:01:58] Speaker 02:
Your Honors, the question before this Court in this appeal is whether proper application of the sentence enhancement entitled the Hate Crime Motivation or Vulnerable Victim sentence enhancement

[00:02:10] Speaker 02:
requires the government to prove, beyond a reasonable doubt, that the defendant was motivated by hate.

[00:02:17] Speaker 02:
This court should find that it does because any other reading would subvert congressional intent, would undermine the purpose of the statute, would conflict with this court's own past precedent in addition to the government's stated position in prior cases and in guidance documents, and would lead to absurd results.

[00:02:38] Speaker 04:
So are you arguing, counsel, that there has to be an express finding

[00:02:43] Speaker 02:
In the district court below, there has to be an express finding of hate or animus motivating the conduct?

[00:02:48] Speaker 02:
That's my question.

[00:02:49] Speaker 02:
Yes.

[00:02:49] Speaker 04:
As opposed to a finding that the defendant selected his victim because of the particular trait.

[00:02:56] Speaker 02:
Well, our argument, Your Honor, is that the language because of the protected trait actually imports an animus requirement.

[00:03:05] Speaker 04:
Right, and that's different than an express finding.

[00:03:08] Speaker 04:
So in other words, my question to ... Maybe I wasn't very clear, sorry.

[00:03:11] Speaker 04:
My question is, if there's a finding in the district court that the defendant selected his victim because of, fill in the blank, would that suffice?

[00:03:20] Speaker 02:
Oh, my apologies, Your Honor.

[00:03:23] Speaker 02:
Not without more, not without an inquiry into whether the because of, looked into whether or not the defendant acted with an animus motivation against the victims, against the victims in the case.

[00:03:36] Speaker 02:
The reason for this, your honor, is that the term because of as used in the statute is ambiguous.

[00:03:42] Speaker 02:
And this court has previously held in numerous cases, including, for example, in Bliss Sequoia and risk advisors versus

[00:03:56] Speaker 02:
I don't have the full site there, but Bliss Sequoia Inc.

[00:04:02] Speaker 02:
is a statutory phrase that is commonly considered to be ambiguous because it's unclear exactly what because of selection might mean in a given context.

[00:04:11] Speaker 02:
And there are some examples of this in the briefing.

[00:04:14] Speaker 02:
For example, an example from a law review article that if you were to penalize someone for that or if you were to say that someone hit a pedestrian in the sidewalk and the car hit the pedestrian because they were in the sidewalk, because of their presence in the sidewalk, there is a reasonable inference that the question is did they do so because they had some sort of feeling of discontent to the pedestrian being in the sidewalk or simply because they did not observe that the pedestrian was there in the sidewalk.

[00:04:43] Speaker 02:
These are the kinds of questions that language like because of can lead to.

[00:04:48] Speaker 02:
But what we have here is we actually have several express statements of congressional intent in terms of crafting this enhancement.

[00:04:56] Speaker 02:
So we know from the congressional record and we know based on the US Supreme Court case that the language of this enhancement was modeled after that because of in this case was actually intended to import an animus requirement into the selection criteria.

[00:05:13] Speaker 02:
And if we look at, for example, the prosecution of federal hate crimes, so I'm thinking, for example, of cases where the government chooses to actually proceed on a hate crime prosecution, we do actually find several cases in which this court has also interpreted the because of language that's also used in some of the hate crime prosecutions to mean because of motivation by racial animus.

[00:05:42] Speaker 04:
It seems like you're biting off more than you need to.

[00:05:45] Speaker 04:
I think there's briefing regarding the Second Circuit's opinion in Ray terrorist bombings.

[00:05:51] Speaker 04:
And that, of course, that language is in a context of bombing an American embassy.

[00:05:56] Speaker 04:
The victims were American.

[00:05:57] Speaker 04:
And in that case, the Second Circuit, I think, it's my paraphrase, decided it didn't matter why the individual, the defendant, selected those victims.

[00:06:09] Speaker 04:
Could have been differences of opinion about their political views,

[00:06:12] Speaker 04:
He argued it wasn't their citizenship, but what the Second Circuit said is it didn't matter why.

[00:06:17] Speaker 04:
Why he'd selected them, the fact is he had selected them and that was enough.

[00:06:21] Speaker 04:
But I think you're arguing a different theory here.

[00:06:24] Speaker 04:
You're wanting us to go farther than that.

[00:06:26] Speaker 02:
Yes, Your Honor.

[00:06:28] Speaker 02:
We would argue that first the in-right terrorist bombings case can't be imported to apply to the facts on the record below here.

[00:06:35] Speaker 02:
The circumstances of the crimes are

[00:06:38] Speaker 02:
so incredibly different, but as to the passing reference to the hate crime motivation enhancement in right terrorist bombings, our reading is slightly different of how the Second Circuit- I know, I just don't find it persuasive.

[00:06:51] Speaker 04:
What I'm trying to figure out so that I don't take up too much of your time is I'm curious about why you're resisting, because it seems to me you would prevail if we just needed a finding that the defendant selected his victim because of the particular trait.

[00:07:09] Speaker 02:
Well, I believe at the district court below, Your Honor, the district court did make a finding in the district court's view that the victims were selected because of a particular trait.

[00:07:21] Speaker 04:
It sounded a whole lot more like a vulnerable victim analysis, though.

[00:07:26] Speaker 02:
Yes, we agree, Your Honor.

[00:07:28] Speaker 02:
Most of the evidence, this is one of our other reasons for why we think the enhancement doesn't apply in this case, because a lot of the evidence that was submitted below was not actually evidence that was developed on a factual record, but was rather argument, speculation about why the victims may have been targeted.

[00:07:44] Speaker 02:
It wasn't evidence beyond a reasonable doubt to actually show what was motivating the defendant's conduct and to actually show whether or not that is why.

[00:07:52] Speaker 02:
these victims were targeted.

[00:07:53] Speaker 02:
And what this enhancement requires and what the legislative context shows us, the mischief that this enhancement was meant to address are crimes motivated by animus.

[00:08:07] Speaker 02:
And that's what I think the because of language means in this enhancement.

[00:08:12] Speaker 02:
And I think reading it without the because of animus,

[00:08:17] Speaker 02:
understanding would not give meaning to what Congress was trying to do here, which was to punish hate crimes, not selection crimes.

[00:08:26] Speaker 04:
So if I shoot someone of a different race, that's not necessarily a hate crime.

[00:08:30] Speaker 04:
It's a horrible crime.

[00:08:31] Speaker 04:
It's not necessarily a hate crime.

[00:08:33] Speaker 04:
If I shoot them because they're of a different race, that's a hate crime.

[00:08:36] Speaker 04:
That's my reading of the record, and that's my reading of the in-rate terrorist bombings case.

[00:08:41] Speaker 04:
But I think you have a different view of that.

[00:08:45] Speaker 02:
I think I would agree with your reading of that, Your Honor, if there was evidence that was developed, if, for example, you had then admitted that the reason that you committed the shooting was because of the race of the victim.

[00:08:57] Speaker 02:
We don't have any such evidence here.

[00:08:59] Speaker 02:
We don't know what motivated.

[00:09:00] Speaker 04:
I've taken you below your three-minute mark.

[00:09:04] Speaker 04:
Let me just check.

[00:09:05] Speaker 04:
Since I've taken your time, I'll give you another little bit.

[00:09:09] Speaker 04:
Nothing further.

[00:09:10] Speaker 04:
So we'll reserve the bulk of your time.

[00:09:11] Speaker 04:
When you come back, you'll have three minutes.

[00:09:13] Speaker 04:
All right.

[00:09:13] Speaker 04:
Thank you, Your Honors.

[00:09:14] Speaker 04:
Thank you.

[00:09:14] Speaker 04:
Thank you for your patience with my questions.

[00:09:16] Speaker 04:
We'll hear from the government.

[00:09:23] Speaker 03:
Good morning, Your Honors.

[00:09:25] Speaker 03:
May it please the court, Bram Alden on behalf of the United States.

[00:09:29] Speaker 03:
I want to start with the plain language of the guideline because I think that's where the analysis really should begin and end.

[00:09:35] Speaker 03:
The words animus tor do not appear in the guideline provision.

[00:09:39] Speaker 03:
It simply requires intentional selection because of a protected characteristic.

[00:09:44] Speaker 03:
Here, that protected characteristic was sexual orientation.

[00:09:48] Speaker 03:
That should really end the analysis into whether animus is required.

[00:09:52] Speaker 03:
But I do think that it's important to note that the origination of this test was with Wisconsin v. Mitchell, in which the hate crime enhancement

[00:10:03] Speaker 03:
was applied, or actually the Wisconsin statute that permitted a higher statutory maximum was applied based simply on intentional selection because of a protected characteristic.

[00:10:16] Speaker 03:
There was no requirement of animus in the Wisconsin statute.

[00:10:20] Speaker 03:
There was no requirement of animus in the Violent Crime Control Act of 1994 that directed the Sentencing Commission to create this enhancement.

[00:10:29] Speaker 03:
And there is no requirement in the enhancement itself.

[00:10:33] Speaker 04:
Well, for an express finding.

[00:10:36] Speaker 03:
Correct.

[00:10:36] Speaker 03:
And I don't think an implied finding or anything of the sort is required either.

[00:10:40] Speaker 03:
I agree with Your Honor's reading of terrorist bombings, which is that the underlying motivation for why someone selected a victim because of the protected characteristic is not the inquiry.

[00:10:53] Speaker 03:
And when the defense points to cases in which animus has been found, that is sufficient but not necessary to prove that there was selection because of race in most of those cases.

[00:11:06] Speaker 03:
Animus is often very strong evidence that someone is selecting because of a protected characteristic, but it is not something that is required.

[00:11:16] Speaker 03:
So turning then to really whether the district court abused its discretion in finding that victims were selected because of sexual orientation in this case, the answer is no.

[00:11:26] Speaker 03:
And I would point to three reasons why.

[00:11:29] Speaker 03:
The victims here were selected because they were vulnerable, because they were accessible, and because they were susceptible to this defendant's particular scheme.

[00:11:40] Speaker 03:
And I understand your honor sees some overlap between this and the vulnerable victims enhancement.

[00:11:46] Speaker 03:
I would differentiate those two enhancements by pointing out that a victim to be eligible for the vulnerable victim enhancement has to actually be vulnerable.

[00:11:55] Speaker 03:
And what the hate crimes enhancement is looking at is the defendant's intention or selection or perception of the victims as more vulnerable.

[00:12:04] Speaker 03:
So, for example, here it does not matter whether gay men were particularly vulnerable to this defendant's crimes.

[00:12:11] Speaker 03:
What matters is that he perceived them as people who he could uniquely target.

[00:12:17] Speaker 03:
And the district court found that vulnerability and that perception based on the fact that this defendant called CO a faggot and said, you bitches are all the same, which according to the district court, evidenced defendants' belief that gay men shared characteristics that made them susceptible and vulnerable robbery targets.

[00:12:36] Speaker 03:
That's at 1ER 22 to 23.

[00:12:39] Speaker 03:
Accessibility is the second thing that I think the court really should look at here.

[00:12:44] Speaker 03:
And the district court made a finding that defendant exploited his victims because he used gay hookup culture, which uniquely normalizes meeting alone in person in a private location on first meeting.

[00:12:56] Speaker 03:
And that's at 1.22.

[00:12:57] Speaker 04:
But the victim's attributes you're talking about now have to do with their accessibility, their availability.

[00:13:02] Speaker 04:
That's not what the guidelines talking about.

[00:13:04] Speaker 04:
The guideline is talking about selecting a victim because of

[00:13:07] Speaker 04:
And in this case, it would be sexual orientation.

[00:13:09] Speaker 03:
Absolutely.

[00:13:09] Speaker 04:
That's quite different.

[00:13:10] Speaker 04:
And I don't think the district court relied upon a vulnerable victim enhancement.

[00:13:13] Speaker 04:
Is this exhausted, vulnerable victim?

[00:13:16] Speaker 03:
Sorry?

[00:13:17] Speaker 04:
Is the argument exhausted?

[00:13:19] Speaker 03:
The argument exhausted.

[00:13:20] Speaker 04:
Does the government rely on vulnerable victim in the district court?

[00:13:23] Speaker 03:
No.

[00:13:24] Speaker 03:
The vulnerable victim enhancement is not something we relied on below, nor is it something we rely on on appeal.

[00:13:28] Speaker 04:
I didn't read the record that way either.

[00:13:30] Speaker 04:
So I appreciate the confirmation.

[00:13:32] Speaker 04:
We have another case on the calendar today with a very similar issue.

[00:13:35] Speaker 04:
So I want to make sure that I'm keeping them straight.

[00:13:37] Speaker 04:
It sounds like that is the case.

[00:13:41] Speaker 04:
So back to the point I'm making, when you talk about accessibility or just to consider that, that's not what the guideline speaks to.

[00:13:48] Speaker 04:
It doesn't speak to selecting victim on account of vulnerability or accessibility.

[00:13:53] Speaker 03:
I agree.

[00:13:53] Speaker 03:
And that's the proof that this defendant selected because of sexual orientation.

[00:13:59] Speaker 03:
When we're trying to determine whether the district court legally erred

[00:14:03] Speaker 03:
It absolutely did not in saying that all the guideline requires is selection because of a protected characteristic when this court is trying to determine whether the district court abused its discretion in saying that the guideline applied here and that this enhancement was properly applied.

[00:14:19] Speaker 03:
That's when I think you look to what was the rationale behind the district court's decision, which is where accessibility, vulnerability, and susceptibility come into play.

[00:14:29] Speaker 03:
Accessibility was something that the district court specifically pointed to in terms of Grindr being the method that this defendant used, a gay hookup site, which the parties agreed in the plea agreement.

[00:14:42] Speaker 01:
So it just sounds like what you're kind of doing is merging

[00:14:47] Speaker 01:
the vulnerability and concept with the special characteristic concept.

[00:14:55] Speaker 01:
Because I think your argument is that you're using other words, accessible, et cetera, but that a particular class of people are vulnerable.

[00:15:07] Speaker 01:
They targeted them because of that vulnerability, and therefore that this enhancement is appropriate.

[00:15:16] Speaker 01:
That just makes every time you target a class of people because they're vulnerable, then all of a sudden, I guess maybe you can, is that your argument?

[00:15:24] Speaker 03:
No, Your Honor, and he has to intentionally select them based on the protected characteristic.

[00:15:29] Speaker 01:
No, I know, but he does so because he thinks, you know, you can imagine somebody targeting females because he thinks that females are, whether they are or not, he thinks that females are particularly vulnerable to being robbed or something like that.

[00:15:45] Speaker 01:
And so he's picking them because he thinks that class of people are vulnerable, let's just assume,

[00:15:50] Speaker 01:
kind of a weird thought experiment, but that he doesn't actually have any animus towards females, but he just thinks he actually, it's a female.

[00:15:56] Speaker 01:
As a female, she has lots of female friends, like females, but just goes after females because thinks that they're particularly vulnerable.

[00:16:05] Speaker 01:
But I think under your argument, if she was picking females,

[00:16:10] Speaker 01:
because she thought they were vulnerable, then she would be subject to a special characteristic assessment.

[00:16:16] Speaker 01:
That's correct.

[00:16:16] Speaker 03:
And I think that's where the purse matter.

[00:16:18] Speaker 01:
So what is the difference between the vulnerability and the special characteristic?

[00:16:22] Speaker 01:
Other than, I guess, you're saying that the only time the vulnerability would count separate would be if I'm just picking a particular person based on their vulnerability.

[00:16:30] Speaker 01:
But if I'm targeting a class of people because of a perceived vulnerability, then they're basically the same.

[00:16:38] Speaker 03:
I think the way they would be distinguished is one, just because someone is vulnerable doesn't mean that the defendant is selecting them because of their protected characteristic that makes them more vulnerable.

[00:16:50] Speaker 03:
Two, they don't actually have to be vulnerable for the hate crime enhancement to apply.

[00:16:55] Speaker 01:
But this case is basically like a law school hypothetical about where you're picking a class of people, the argument is at least that you're picking a class of people because you perceive them to be vulnerable.

[00:17:06] Speaker 01:
but not because of animus towards that class of people.

[00:17:09] Speaker 01:
That's what this case is presenting.

[00:17:10] Speaker 01:
If you take away the animus part, what you're left with is you're just picking a class of people.

[00:17:14] Speaker 01:
I get your point that you might be picking a class for other reasons other than vulnerability, but in this case, that's what this case is about.

[00:17:22] Speaker 01:
It's all about picking this class because you thought they were vulnerable.

[00:17:27] Speaker 01:
That's what the judge relied on too.

[00:17:29] Speaker 03:
That was one of the things that I think the judge did rely on.

[00:17:32] Speaker 03:
I think the purse snatcher hypothetical is a useful hypothetical to think about in this context.

[00:17:38] Speaker 03:
If you pick a woman or all women as your targets because they are women, so you think I'm going to be a purse snatcher because women are less

[00:17:50] Speaker 04:
likely to be able to chase me down because they are weaker because they are less likely to call the police you are picking them because they are women if you pick the purse as your target i think that's the fallacy right there so to get back to what what judge van dyck is saying i just want to push back on this it seems to be emerging a modus operandi a particular scheme to isolate a victim with a hate crime this particular scheme was to use isolate people by

[00:18:20] Speaker 04:
arranging to meet them in their own homes through Grindr.

[00:18:24] Speaker 04:
That's a scheme.

[00:18:26] Speaker 04:
That's an MO.

[00:18:28] Speaker 03:
So the reason why the person is selecting the victims in the purse snatching hypothetical is if he sees them as women and says women are weaker, less likely to chase me down, less likely to be able to catch me or call the police, that is different from the purse snatcher who says it is a lot harder to get a wallet than a purse and that is why I'm going after purses.

[00:18:52] Speaker 03:
That is where the

[00:18:53] Speaker 03:
Vulnerable victim enhancement and and potentially It seems to be under your theory it would be applicable a lot I Don't think that's the case your honor because you have to intentionally select based on the protected characteristics

[00:19:12] Speaker 03:
And this is an abuse of discretion standard.

[00:19:15] Speaker 03:
Defense counsel pointed to this as a finding that the district court made that this defendant selected victims based on sexual orientation.

[00:19:24] Speaker 03:
She just conceded that that was a finding.

[00:19:27] Speaker 03:
If it's not a finding, it is at minimum an abuse of discretion standard.

[00:19:30] Speaker 03:
And under that standard, this court should affirm.

[00:19:33] Speaker 04:
Hang on.

[00:19:33] Speaker 04:
Just one minute.

[00:19:33] Speaker 04:
I want to make sure Judge Tashima has a chance.

[00:19:36] Speaker 04:
Anything further?

[00:19:36] Speaker 04:
Thank you for your argument, counsel.

[00:19:39] Speaker 03:
Thank you, your honor.

[00:19:39] Speaker 04:
Thank you.

[00:19:49] Speaker 04:
Council, what about opposing counsel's argument that would it be enough in this hypothetical for a defendant to select a victim because the defendant is basically operating on a bunch of stereotypes.

[00:20:02] Speaker 04:
He's assuming that if I select a woman, that she's going to not be able to chase me down.

[00:20:07] Speaker 04:
For all he knows, she might be an Olympic athlete and faster than he is.

[00:20:10] Speaker 04:
But if he's operating on a set of stereotypes, would that be enough?

[00:20:14] Speaker 04:
He's still selecting women as his victims under this hypothetical.

[00:20:17] Speaker 02:
no your honor that would not be enough under our reading of of the enhancement the enhancement is titled the hate crime motivation enhancement and is looking to whether the defendant had a hate crime motivation in committing in committing the underlying crimes and

[00:20:34] Speaker 02:
As your honors have just pointed out, and as the preceding discussion just demonstrated, there are a lot of scenarios in which if all you rely on is intentional selection because of, but you don't actually say what because of means or defines because of in any meaningful sense to give meaning to what the

[00:20:54] Speaker 02:
enhancement is intended to capture, it could be applicable in a wide range of cases beyond which those that Congress clearly intended it to apply.

[00:21:04] Speaker 04:
What I'm suggesting is I'm not so sure it would be insufficient for a district court to say that I'm going to apply the enhancement because this defendant selected his victim on the basis of gender, full stop.

[00:21:16] Speaker 04:
But I think it becomes a really different case if the district court says

[00:21:22] Speaker 04:
the defendant makes a finding that the defendant selected victims because he believed that men would be these men in particular would be and then fill in the blank, you know, have these other attributes.

[00:21:34] Speaker 02:
Right.

[00:21:35] Speaker 02:
Well, if I understand your honor's question correctly, it's, again, getting to whether bias-motivated or stereotype-motivated conduct is sufficient.

[00:21:44] Speaker 04:
Oh, I'm getting back to you.

[00:21:45] Speaker 04:
And I'm just not doing it very artfully.

[00:21:46] Speaker 04:
But at the beginning of the argument, you pushed back instead of finding that the defendant selected as victim because of the protected trait would not be enough.

[00:21:55] Speaker 04:
And I'm not so sure I agree with that.

[00:21:56] Speaker 04:
It seems to me if that's all that had happened here, that might be fine.

[00:22:00] Speaker 02:
I see what you're saying, Your Honor.

[00:22:02] Speaker 02:
Yes, I think it's because we're sort of getting into the weeds again of what because of me, what because of is supposed to mean in the statute and what because of the sexual orientation means.

[00:22:13] Speaker 02:
But I would just like to say that in this case, there was not a record developed below to answer these questions.

[00:22:20] Speaker 02:
And this enhancement has a special evidentiary requirement.

[00:22:23] Speaker 02:
It has a beyond a reasonable doubt enhancement requirement, application requirement, which is,

[00:22:29] Speaker 02:
rare among the guideline enhancements.

[00:22:31] Speaker 02:
And I'd just like to quote from one of the congresspeople who was speaking in favor of this act passing, just saying, proving the hate element at trial also allows the defendant to benefit from the rules of evidence by cross-examining witnesses and excluding illegally seized evidence.

[00:22:49] Speaker 02:
And the congressional record that I'm citing is referenced in the reply briefing.

[00:22:54] Speaker 02:
But just throughout this, what we see, Your Honors, is that

[00:22:57] Speaker 02:
there was an assumption that there would be a high evidentiary burden to actually interrogate the reasons for the selection and we don't have that here.

[00:23:04] Speaker 02:
The reasons for the selection on the record here are total speculation because the government was not held to its burden below beyond a reasonable doubt.

[00:23:14] Speaker 01:
So just one follow-up.

[00:23:16] Speaker 01:
Under the government's view, it seems to me that every male-on-female rape would be a hate crime, you know, unless it was somebody that was bisexual or something like that.

[00:23:26] Speaker 01:
Is that—am I right in perceiving the government's argument that way?

[00:23:30] Speaker 01:
Or am I—my understanding is that there's significant evidence that it wasn't intended to be used that way, the hate crime motivation.

[00:23:40] Speaker 02:
Yes, I agree with your reading, Your Honor.

[00:23:43] Speaker 02:
I don't see how, under the government's reading, you wouldn't be able to do that, aside from the fact that that was one scenario that Congress anticipated.

[00:23:50] Speaker 02:
And in the application notes, they provided for, and one of the sponsors of the legislation actually said, let's not do double counting in the case of a rape, but also said, unless there is other indicia of animus towards the defendant's gender.

[00:24:06] Speaker 02:
So they were concerned about the double counting, because just reading it

[00:24:10] Speaker 02:
purely selection-based could lead to its application in all of these various cases where you just show selection, but don't require criteria for what the selection is on the basis of.

[00:24:21] Speaker 02:
Got it.

[00:24:21] Speaker 02:
Judge Toshima has another question, please.

[00:24:25] Speaker 00:
Let me ask this.

[00:24:26] Speaker 00:
Suppose we agree with the position that the court should have made a finding, an express finding, okay?

[00:24:35] Speaker 00:
And that was there, but on the other hand, could we still say

[00:24:41] Speaker 00:
That failure was not prejudicial because there's plenty of evidence in the record to support such a finding.

[00:24:52] Speaker 00:
In other words, is there a case law that supports that?

[00:24:55] Speaker 02:
Yes, Your Honor, there is case law that supports that.

[00:25:00] Speaker 02:
And first, just to straightforwardly answer your question, I would say no, there is not sufficient evidence in the record that the judge could have made this finding, even if we agree that the wrong legal standard was applied.

[00:25:16] Speaker 02:
And I think what Your Honor is getting to is a harmless error standard.

[00:25:22] Speaker 02:
And first, I'd like to point out that the government has not raised harmless error in its briefing.

[00:25:27] Speaker 02:
So this question as to whether or not, even if we agree that the legal standard was incorrect, that a harmless error analysis says that there's no prejudice, this court has said that this should only apply in extraordinary cases where the evidence of prejudice or the evidence that the

[00:25:45] Speaker 02:
outcome would be the same is so obvious that there's no need to remand because of the legal error.

[00:25:50] Speaker 02:
And we simply don't have that in this case because we also we don't have facts developed that actually go to the selection.

[00:25:56] Speaker 02:
We only have supposition and argument as to why the selection may have may have come about.

[00:26:03] Speaker 02:
But none of that is actually from the factual development on the record.

[00:26:06] Speaker 00:
You're almost saying that even if the court had made a finding, it would still be error because that finding wouldn't be supported on this record.

[00:26:14] Speaker 02:
Yes, that is what we believe, Your Honor.

[00:26:16] Speaker 02:
There is not sufficient factual findings made to support the enhancement.

[00:26:21] Speaker 00:
Thank you.

[00:26:21] Speaker 02:
Thank you.

[00:26:22] Speaker 04:
We've taken you significantly over your time.

[00:26:24] Speaker 02:
Sorry about that, Your Honor.

[00:26:24] Speaker 02:
Not at all.

[00:26:25] Speaker 04:
We took you over your time, but we appreciate your argument.

[00:26:27] Speaker 04:
We'll take that case under advisement.

[00:26:29] Speaker 02:
All right.

[00:26:29] Speaker 02:
Thank you.