[00:00:02] Speaker 03:
Next case on calendar this morning is United States versus Mirrorball.

[00:00:38] Speaker 01:
You can proceed when you're ready.

[00:00:39] Speaker 01:
Thank you.

[00:00:40] Speaker 01:
Good morning, Your Honors.

[00:00:41] Speaker 01:
May it please the court?

[00:00:43] Speaker 01:
Elizabeth Richardson Royer on behalf of Gabriel Mirabal.

[00:00:46] Speaker 01:
I plan to reserve three minutes for rebuttal, but I will watch the clock.

[00:00:49] Speaker 01:
Thank you.

[00:00:50] Speaker 01:
I intend to begin this morning by addressing the district court's error in excluding evidence of the factual basis in Eric Rojo's original plea agreement and the government's sentencing memorandum following that plea agreement.

[00:01:01] Speaker 01:
Then, time permitting, I'll turn briefly to the topic of the day, the categorical approach and the question of whether

[00:01:08] Speaker 01:
18 USC section 111B is a crime of violence for purposes of the career offender guideline.

[00:01:14] Speaker 01:
As the court is aware from the briefing in this case, the critical issue was whether Mr. Mirabal wore the brown shirt or the white shirt during the incident that occurred at the prison.

[00:01:24] Speaker 01:
The evidence was in conflict.

[00:01:26] Speaker 01:
Two of the prison guards identified him as the person in the brown shirt who was involved at the beginning of the fight, and two of the prison guards identified that individual as Mr. Rojo,

[00:01:37] Speaker 01:
The government argued that Mr. Mirabal was the person in the white shirt who joined into the fight after it began.

[00:01:44] Speaker 01:
But the jury was prevented from learning that the government had previously believed, just as the defense urged at trial, that Mr. Mirabal was the person in the brown shirt.

[00:01:53] Speaker 01:
The government's filings preceding Mr. Rojo's sentencing were the statements of a party opponent.

[00:01:58] Speaker 01:
They were properly admissible under federal evidence 801D2.

[00:02:03] Speaker 01:
And their erroneous exclusion wasn't harmless in this case.

[00:02:07] Speaker 01:
So the court should reverse on that basis.

[00:02:12] Speaker 01:
The original factual basis should have been admitted.

[00:02:15] Speaker 01:
Rule 801D2 provides that a statement is not hearsay if it's offered against an opposing party and was made by that party.

[00:02:24] Speaker 01:
Subsections A, B, C, and D all apply in this case.

[00:02:28] Speaker 01:
The statement was adopted and manifested as true by the AUSA who drafted and signed and filed.

[00:02:34] Speaker 01:
the plea agreement with that factual statement enclosed within it, and it was repeated in the government's filing in the sentencing memorandum that was also filed with the court.

[00:02:44] Speaker 01:
The majority of courts have treated statements of government lawyers in criminal cases as statements of a party opponent.

[00:02:50] Speaker 01:
Briefs filed by government in another case, in the First Circuit case, United States versus Qatar, there are a number of other cases cited in the briefing.

[00:02:59] Speaker 01:
There is, as the government pointed out,

[00:03:02] Speaker 01:
less authority on the other side of the equation.

[00:03:05] Speaker 01:
But this court should follow Justice Stevens, then Judge Stevens' dissent in powers, which we talked about, where he basically said, look, it's not fair to allow the government to say one thing in one case and another thing in another case.

[00:03:22] Speaker 01:
And it's fine for the government to change its view of, you know, based on new information or new evidence as they claimed in this case, but the jury should be allowed to know about the original position and then have the government explain why its position changed.

[00:03:36] Speaker 01:
And so the district court in this case treated it as a prior and consistent statement of a non-testifying witness, which is not the basis for the admission, which was the statement of a party opponent.

[00:03:48] Speaker 01:
And so the district court aired in that regard

[00:03:50] Speaker 01:
And the error wasn't harmless in this case.

[00:03:53] Speaker 01:
The government has the burden of showing that it was more probable than not that the error didn't have any impact on the case.

[00:04:00] Speaker 01:
We don't know what the jury would have done with respect to

[00:04:05] Speaker 01:
finding of guilt with the brown shirted prisoner.

[00:04:09] Speaker 01:
We know that the jury deliberated for more than three hours in this case, which I submit is a lengthy deliberation for a pretty straightforward case where events were captured on surveillance.

[00:04:19] Speaker 01:
The evidence was in conflict.

[00:04:21] Speaker 01:
As I mentioned previously, the guards disagreed about who was who.

[00:04:25] Speaker 01:
And it matters.

[00:04:27] Speaker 01:
And the district court recognized this.

[00:04:30] Speaker 01:
It matters both for purposes of the self-defense instruction.

[00:04:34] Speaker 01:
So if the jury was told and believed that Mr. Mirabal was the person in the white shirt who joined into the fight after it began, he has no possible self-defense argument.

[00:04:46] Speaker 01:
If, on the other hand, they believe he's the person in the brown shirt, there is a question there.

[00:04:51] Speaker 01:
And he argues self-defense.

[00:04:52] Speaker 01:
And if the jury had been tasked with the job of figuring out whether the person in the brown shirt acted in self-defense, we don't know what they would have done because they weren't asked to do that.

[00:05:04] Speaker 01:
They were told he was the person in the white shirt.

[00:05:06] Speaker 01:
It also mattered for purposes of aiding and abetting because there is a good argument that the person in the brown shirt did not aid and abet the other prisoner in the fight.

[00:05:17] Speaker 01:
He got involved in the fight and continued to be involved in the fight, but the aiding and abetting really applies to the person in the white shirt.

[00:05:25] Speaker 01:
And so the exclusion of this evidence mattered here.

[00:05:27] Speaker 01:
It mattered because it deprived Mr. Mirabal

[00:05:32] Speaker 01:
of evidence that would have probably tipped the balance, given the conflicting evidence about who wore which shirt.

[00:05:38] Speaker 01:
And it's evidence that could have very easily changed the outcome of trial.

[00:05:43] Speaker 01:
And the government hasn't met its burden of showing otherwise here.

[00:05:45] Speaker 00:
So in this case, there was an amended plea agreement presented to the judge, correct?

[00:05:50] Speaker 00:
Correct.

[00:05:50] Speaker 00:
And it had a different factual basis in the plea agreement.

[00:05:54] Speaker 00:
Is that correct?

[00:05:54] Speaker 01:
That's correct.

[00:05:55] Speaker 00:
What was the explanation that the government gave the judge as to why the plea agreement was being amended?

[00:06:02] Speaker 00:
And does that make a difference?

[00:06:05] Speaker 01:
It doesn't make a difference.

[00:06:06] Speaker 01:
What the government said was that a new AUSA was assigned to the case who disagreed with the evaluation of the evidence.

[00:06:14] Speaker 01:
Mr. Mirabal sought additional discovery about why that change was made and the district court denied his request for additional discovery.

[00:06:21] Speaker 01:
So all we know is what the government told the court, which is that we looked at the evidence once we were assigned to the case and we saw it differently.

[00:06:29] Speaker 01:
It doesn't make a difference because

[00:06:31] Speaker 01:
You know, the government wants to say, well, we superseded that original factual basis.

[00:06:36] Speaker 01:
It wasn't binding on the parties.

[00:06:38] Speaker 01:
The contract wasn't valid.

[00:06:40] Speaker 01:
That doesn't matter.

[00:06:40] Speaker 01:
What's relevant is that the government at any point adopted that factual statement as true, regardless of what they did later.

[00:06:48] Speaker 01:
That can be before the jury as well.

[00:06:50] Speaker 01:
They can explain to the jury why they changed it.

[00:06:53] Speaker 01:
But the government's statement and manifestation of belief in the truth of that factual basis

[00:06:57] Speaker 01:
It was a relevant evidence.

[00:06:58] Speaker 01:
It was a statement of a party opponent.

[00:07:00] Speaker 01:
It was admissible.

[00:07:01] Speaker 01:
And the district court should not have excluded it.

[00:07:05] Speaker 01:
Unless the court has other questions about that claim, I will turn briefly to the categorical approach.

[00:07:11] Speaker 01:
That'd be helpful.

[00:07:12] Speaker 01:
Go ahead.

[00:07:15] Speaker 01:
I will start with the standard of review.

[00:07:16] Speaker 01:
The government urges that this court should review for plain error.

[00:07:24] Speaker 01:
My position is that the general objection made at year 94 to paragraph 72 of the PSR is sufficient to have preserved the argument.

[00:07:35] Speaker 01:
But even if this court disagrees under plain error, the should be reversed under Borden.

[00:07:42] Speaker 01:
And I think

[00:07:43] Speaker 01:
In one of the earlier cases this morning, counsel had a valid point, which I would also urge the court to adopt in this case, that if the court finds that its current precedent concerning 111B is clearly irreconcilable with Borden, then the plain error standard is also satisfied.

[00:08:02] Speaker 01:
So in this case, this case involves a statute where there is

[00:08:12] Speaker 01:
conduct and outcome and they're two sort of separate things and so what the government wants to do is basically say we're going to focus on the mens rea as a whole for the commission of the offense and if that mens rea is intent to commit the offense that's enough but it's not enough under Borden because Borden cares about what the mens rea is with respect to the use of force and here we know that although

[00:08:39] Speaker 01:
There is a requirement of intent to commit assault.

[00:08:44] Speaker 01:
That is not enough because there is no mens rea requirement associated with the aggravating factor of causing bodily harm.

[00:08:53] Speaker 01:
And that is the use of force that takes this away from 111A, which this court has held is not a crime of violence because it doesn't involve the use of force.

[00:09:04] Speaker 01:
Here we have the use of force, but the mens rea required to commit this offense doesn't connect to that use of force.

[00:09:11] Speaker 01:
And so it's a little bit different from a crime where, to commit the crime, you must necessarily use force.

[00:09:16] Speaker 01:
Robbery is an example, as the Supreme Court discussed in Stokelyne.

[00:09:21] Speaker 01:
But in this case,

[00:09:23] Speaker 01:
Commission of the offense itself doesn't necessarily require the use of force.

[00:09:26] Speaker 01:
The simple assault doesn't.

[00:09:28] Speaker 01:
The aggravating factor of bodily injury can be committed recklessly, negligently, accidentally.

[00:09:35] Speaker 01:
There's no requirement that the use of force be directed intentionally or knowingly against somebody.

[00:09:41] Speaker 01:
And so that's what takes this case slightly more complicated than a case in which the use of force is necessarily part of the conduct.

[00:09:51] Speaker 01:
We're talking about the outcome here.

[00:09:54] Speaker 01:
There is one case that I identified where the court actually does this kind of analysis and distinguishes between the conduct and the outcome other than Borden.

[00:10:04] Speaker 01:
It's the Eighth Circuit case, United States versus Frazier.

[00:10:07] Speaker 01:
It was decided in 2022.

[00:10:08] Speaker 01:
It involved an Iowa statute criminalizing intimidation with a dangerous weapon.

[00:10:15] Speaker 01:
And the court in Frazier held that that's not a crime of violence.

[00:10:18] Speaker 01:
Even though the intimidation part of the crime must be done intentionally.

[00:10:24] Speaker 01:
The court said, it's sufficient if the defendant intentionally fires a gun inside of a building, but only recklessly causes an occupant to fear serious injury.

[00:10:34] Speaker 01:
So the intent goes to the conduct in that statute, not to the outcome.

[00:10:39] Speaker 01:
And the Eighth Circuit said,

[00:10:41] Speaker 01:
The question under the force clause is not simply whether the defendant made an intentional threat, but whether the defendant threatened the use of physical force against the person of another.

[00:10:50] Speaker 01:
And even though that statute was an intent statute, a general intent statute, just like this one, because the use of force component of that crime did not require a mens rea of knowledge or intent, the court said that it wasn't a crime of violence.

[00:11:05] Speaker 01:
And that's what I would urge the court to do here as well.

[00:11:12] Speaker 01:
I will touch briefly upon the court's previous opinion in United States versus juvenile female, which predated Borden.

[00:11:23] Speaker 01:
The court did hold in that case that 111B is a crime of violence.

[00:11:27] Speaker 01:
The court analyzed in that case whether the force that was required met the Supreme Court's definition in Johnson and held that it did.

[00:11:37] Speaker 01:
But it didn't address mens rea.

[00:11:40] Speaker 01:
After Borden, because the use of physical force need not be intentional or known, 111B is not a crime of violence.

[00:11:48] Speaker 01:
And so to the extent that juvenile female conflicts with Borden, this court is no longer obligated to follow it and should not follow it.

[00:11:59] Speaker 01:
I will just briefly say that the error wasn't harmless in this case.

[00:12:04] Speaker 01:
The guideline range went from 120 to 150, all the way to 210 to 262.

[00:12:10] Speaker 01:
The court was concerned about the sentence in this case, varied way down, and there is ample reason to believe that the court would have varied even further downward if the sentencing guideline range had been nearly 10 years less.

[00:12:21] Speaker 01:
And I will reserve the remainder of my time for rebuttal.

[00:12:23] Speaker 01:
Thank you.

[00:12:24] Speaker 01:
Thank you.

[00:12:36] Speaker 02:
Good morning, your honors.

[00:12:37] Speaker 02:
May it please the court, Alex McKenna for the government.

[00:12:40] Speaker 02:
This is a case that involves substantial evidence, both video and the testimony of multiple eyewitnesses, that the defendant and another man, Mr. Rojo, assaulted two victims, that both individuals punched both victims, and that both individuals are guilty.

[00:12:56] Speaker 02:
I want to turn to the issue of the factual basis.

[00:13:00] Speaker 02:
The factual basis, which was then superseded,

[00:13:03] Speaker 02:
does not constitute a party admission.

[00:13:05] Speaker 02:
Plea agreements are contractual in nature.

[00:13:08] Speaker 02:
In this case, a stipulation was filed with a new set of facts that did abrogate the original set of facts.

[00:13:16] Speaker 02:
Essentially, the original set of facts would constitute a hearsay statement by a non-testifying witness, Mr. Rojo, who had in fact already pled in this case

[00:13:28] Speaker 02:
And so there's no reason to believe that he was in any way unavailable should the defense had chosen to call him.

[00:13:33] Speaker 02:
And in fact, in the court's reasoning, the court did point out that the analysis would have been different if the defense indicated an intent to call Mr. Rojo if the defense had sought to bring in an inconsistent witness statement.

[00:13:45] Speaker 02:
I believe there was a prior question about the reason for the change in the factual basis.

[00:13:51] Speaker 02:
I'm going to turn a little bit to the timeline.

[00:13:53] Speaker 02:
In this case, Mr. Rojo pled guilty in September.

[00:13:57] Speaker 02:
In November, a new AUSA interviewed Officer Moreno, the first of the two victims involved in this case.

[00:14:05] Speaker 02:
Mr. Moreno only saw one of his assailants.

[00:14:08] Speaker 02:
The individual in the brown shirt went through one metal detector.

[00:14:11] Speaker 02:
The individual in the white shirt went through a different metal detector and only attacked Officer Moreno from behind.

[00:14:18] Speaker 02:
So Officer Moreno never saw that person.

[00:14:20] Speaker 02:
During that November interview, Officer Moreno identified that first attacker

[00:14:26] Speaker 02:
in a picture as Mr. Rojo of significance identified his very distinctive tattoo.

[00:14:33] Speaker 02:
After that eyewitness gave that identification, including of that very specific marker, the government and the defense entered a stipulation to the new factual basis.

[00:14:47] Speaker 02:
A notice of errata was filed.

[00:14:49] Speaker 02:
And Mr. Rojo was sentenced under that new factual basis, which was accepted by the court.

[00:14:55] Speaker 02:
That occurred years before the trial in this case and the actual consequences to mr. Rojo were based on the amended factual basis I want to turn to so what do you say to the argument that?

[00:15:10] Speaker 04:
Council on the other side made which is so the government was entitled to supersede the plea agreement to change the facts when new facts came to light but all of that should have still been

[00:15:22] Speaker 04:
available to the jury to consider and any explanation that the government wanted to make about why the facts had changed could also be presented to the jury.

[00:15:31] Speaker 02:
Again, the government does believe that this would not constitute a party mission.

[00:15:34] Speaker 02:
However, even if it was, I do want to turn to the issue of any potential evidentiary value that this original factual basis could potentially have, which is essentially zero.

[00:15:47] Speaker 04:
Isn't the evidentiary value that the defendant had a potential self-defense defense that he could assert, and it was made stronger by the facts in the plea agreement that indicated he was the gentleman in the brown shirt?

[00:16:00] Speaker 02:
Well, Your Honor, with regards to the facts in the plea agreement, this was essentially the interpretation of an attorney who was not a witness in this case.

[00:16:09] Speaker 02:
I believe it's of significance.

[00:16:10] Speaker 04:
So are you arguing for a categorical rule that government attorney statements don't satisfy the party opponent rule?

[00:16:16] Speaker 02:
No, Your Honor, although in this particular situation where we have a factual basis that was superseded, we don't believe that this would constitute an admission.

[00:16:26] Speaker 02:
This is not a situation where a statement from an actual eyewitness was involved.

[00:16:32] Speaker 02:
This was essentially at most the opinion of an attorney.

[00:16:36] Speaker 02:
And there is in fact a jury instruction and case law that says that the opinion of an attorney is not evidence.

[00:16:42] Speaker 02:
The jury in this case was instructive.

[00:16:43] Speaker 04:
What I'm struggling with is that the test for determining whether or not something is a statement of a party opponent comes under the federal rules of evidence.

[00:16:53] Speaker 04:
So we have to go through the factors of 801D2 to determine whether or not a statement is an opposing party statement.

[00:17:06] Speaker 04:
So when you say it's an opinion, you're basically concluding that it's

[00:17:11] Speaker 04:
doesn't fall under 801D2 without going through the elements of the actual rule of evidence.

[00:17:17] Speaker 04:
Can you walk me through each of those separate factors that we have to consider in determining whether something is a statement of a party opponent under the rule without reaching your conclusion that it's an opinion or that it's not testimony of a direct eyewitness or anything like that, which really just takes us straight to your conclusion as opposed to the analysis that we're supposed to undergo?

[00:17:37] Speaker 02:
I think that the significant factor here would be the fact that the plea was abrogated, the fact that the ultimate factual basis that the codefendant was sentenced under is completely different from what was initially submitted.

[00:17:53] Speaker 04:
Can you walk me through the factors?

[00:17:58] Speaker 04:
Whether or not the statement is made by the party in an individual representative capacity, you would agree that that's

[00:18:05] Speaker 04:
That's true, right?

[00:18:06] Speaker 04:
Yes, Your Honor.

[00:18:07] Speaker 04:
Okay.

[00:18:08] Speaker 04:
So the party manifested that it adopted or believed it to be true.

[00:18:11] Speaker 04:
That's also correct, right?

[00:18:14] Speaker 04:
Yes, Your Honor.

[00:18:15] Speaker 04:
Okay.

[00:18:17] Speaker 04:
It's made by a person whom the party authorized to make a statement on the subject.

[00:18:20] Speaker 04:
You're not asking for a categorical rule that government attorneys cannot make

[00:18:25] Speaker 04:
statement to party opponents, correct?

[00:18:27] Speaker 04:
Yes, Your Honor.

[00:18:27] Speaker 04:
Okay.

[00:18:29] Speaker 04:
And that's really it right there.

[00:18:33] Speaker 04:
So why isn't that satisfying 801's requirements?

[00:18:39] Speaker 02:
Again, I think the significant factor is that there's essentially no admission given that

[00:18:45] Speaker 02:
a new factual basis was filed, given that the parties agreed that a mistake had been made and that the parties did correct that mistake.

[00:18:51] Speaker 03:
But the fact that there was a change in position does not mean that that was not, at that time, the government's position.

[00:18:59] Speaker 03:
I mean, it was.

[00:19:02] Speaker 03:
Maybe the position changed, but I don't really see how that's relevant to the questions that Judge Desai is asking about whether or not this should be admissible.

[00:19:11] Speaker 02:
Your honor, I think in terms of immiscibility, it also comes down to the issue of the fact that the jury is instructed that the opinions of the prosecutor doesn't matter.

[00:19:19] Speaker 02:
One point that the defense raised is that had this come in, that the prosecution would have been allowed to go into the reasons for the change, which again would

[00:19:29] Speaker 02:
essentially bring in a parade of AUSAs to explain all the reasons that this was adjusted, none of which is related to the facts of the case, and which would all be impermissible in that what we're talking about are the opinions of the attorneys.

[00:19:43] Speaker 02:
For example, if a prosecutor in a closing argument here had said, it's my opinion that the defendant is the individual in white, that would be misconduct.

[00:19:53] Speaker 02:
In this case, if the factual basis had come in,

[00:19:57] Speaker 02:
Frankly, it likely would have been prejudicial to the defendant in that it would have amounted to an admission from his co-defendant that this was an assault by both defendants with a description of punches that were thrown by the defendant.

[00:20:10] Speaker 02:
But then the prosecutor who was involved in the change would then come in and explain that they had an interview with a victim who they, in their opinion, believed to be credible.

[00:20:23] Speaker 02:
and therefore made the change based on all of the hearsay statements that were involved in that interview.

[00:20:30] Speaker 02:
That would be extremely distracting.

[00:20:32] Speaker 02:
It would take away from the evidence in this case.

[00:20:35] Speaker 02:
The evidence in this case, which involved actual eyewitness testimony and which involved actual surveillance video, instead create a parade of inadmissible government statements about the opinions of AUSAs, which would essentially suggest to the jury improperly that the jury, that the essential question

[00:20:54] Speaker 02:
is the opinion of prosecutors rather than the jury's duty in their fact-finding responsibilities to independently view the evidence.

[00:21:06] Speaker 02:
Essentially, there's no actual evidentiary value in the fact that a prosecutor had a mistaken view of the evidence, which was then corrected, but a substantial amount of testimony and evidence would have to come in in order to get into that irrelevant

[00:21:22] Speaker 02:
opinion, which would have been very confusing to the jury.

[00:21:26] Speaker 00:
But we're not really talking about opinions.

[00:21:28] Speaker 00:
We're talking about what is purported to be a change in the facts, not opinions.

[00:21:32] Speaker 00:
Am I correct?

[00:21:33] Speaker 02:
Well, Your Honor, the opinion of the original prosecutor does not actually have to do with the facts of the case.

[00:21:40] Speaker 02:
What's relevant for the jury to consider is the evidence in the case.

[00:21:44] Speaker 02:
And the evidence in the case does not involve the opinion of a prosecutor.

[00:21:49] Speaker 02:
The evidence in the case involves the testimony of eyewitnesses, the surveillance video, and all of the evidence.

[00:21:54] Speaker 02:
I do want to briefly come back to Your Honor's reference to self-defense.

[00:21:59] Speaker 02:
It is the government's position here that the facts in this case

[00:22:03] Speaker 02:
did not support a possible self-defense argument.

[00:22:07] Speaker 02:
This is a case where we had no testimony and no evidence that suggested that Officer Moreno made any violent statements or any violent actions whatsoever prior to the assault.

[00:22:19] Speaker 02:
Moreover, the jury saw the surveillance video, which is very clear that for several seconds before the inmate in brown reached back for momentum.

[00:22:31] Speaker 02:
and punched Officer Moreno in the face.

[00:22:33] Speaker 02:
For several seconds before that, Officer Moreno made no physical motions, even in his direction.

[00:22:39] Speaker 02:
So while I appreciate that instruction was given, there's simply no evidence in this case that actually supported a self-defense argument.

[00:22:48] Speaker 02:
Does the court have additional questions on this topic, or would the court prefer that I turn to the issue concerning the crime of violence?

[00:22:59] Speaker 02:
You can turn to the crime of violence.

[00:23:00] Speaker 02:
Thank you.

[00:23:02] Speaker 02:
Thank you, Your Honor.

[00:23:03] Speaker 02:
In this case, there's established Ninth Circuit precedent that 18 USC 111B is, in fact, a crime of violence, which has not been abrogated by a board, which is not clearly irreconcilable with the board and decision.

[00:23:19] Speaker 02:
In juvenile female, the court found that both felony variants of 111B were crimes of violence and specifically analyzed the mens rea that was required

[00:23:29] Speaker 02:
under that statute, finding that it requires an intent to assault.

[00:23:34] Speaker 02:
That same finding about the requirement of an intent to assault was also echoed in Acosta Sierra, where the court found that the offense requires an attempt to commit battery, an evil purpose or mental capability.

[00:23:48] Speaker 04:
Could the attempted battery portion of 111B sweep in reckless conduct?

[00:23:53] Speaker 04:
I'm sort of struggling with this because under the Borden test,

[00:23:58] Speaker 04:
With the requisite mens rea, I ask whether any of these separate offenses can sweep in reckless conduct, and the one that sort of gives me trouble is the attempted battery.

[00:24:12] Speaker 02:
No, Your Honor, I don't believe that that could sweep an attempted battery.

[00:24:14] Speaker 02:
In fact, even the jury instructions specifically for this offense talk about

[00:24:18] Speaker 02:
an intentional intention to strike another, which is what would be required here.

[00:24:23] Speaker 02:
I do think it's significant that Borden, when it made its decision, was essentially decided to resolve a circuit split.

[00:24:30] Speaker 02:
And Borden itself acknowledged that it had already been the law in the Ninth Circuit, that a knowing or an intentional standard is what's required.

[00:24:38] Speaker 02:
I do appreciate that the defense cited a case in which the misdemeanor variant of the statute was found to not be a crime of violence, but I want to highlight that that case, Dominguez-Mariocchi, focused on the level of force that was required as opposed to intent.

[00:24:56] Speaker 02:
In fact, Dominguez-Mariocchi acknowledged that it had long been the law in the Ninth Circuit that the felony variant of the statute was, in fact, a crime of violence.

[00:25:08] Speaker 02:
In order for the government to prove that a 111B, the felony varying of the statute, was committed, the government does have to meet that knowing or intentional standard in that the person intended to commit an assault, that the person intended to strike another and use force against another.

[00:25:28] Speaker 02:
I would also note that since Borden

[00:25:33] Speaker 02:
Three other circuits have reached this issue, the Fourth Circuit, the Eighth Circuit, and the Tenth Circuit, and did still conclude that the 111B offense could not be committed recklessly, and that in fact did require an intent to assault.

[00:25:47] Speaker 02:
My colleague pointed out in the reply that one of those cases, Medeiros, the case from the Eighth Circuit,

[00:25:53] Speaker 02:
And in fact, the McDonnell case from the Fourth Circuit also deal with the felony variant of the statute.

[00:26:01] Speaker 02:
However, that does not go towards mens rea.

[00:26:04] Speaker 02:
That goes simply towards the way that the force was carried out.

[00:26:07] Speaker 02:
But the mens rea is the same for both statutes.

[00:26:11] Speaker 02:
which is something that was notable in the juvenile female holding, that for the mens rea that's required for the 111B, it does in fact have to be knowing or intentional.

[00:26:28] Speaker 02:
Does the court have any additional questions?

[00:26:31] Speaker 02:
Thank you very much.

[00:26:32] Speaker 02:
Thank you very much.

[00:26:42] Speaker 01:
Okay.

[00:26:44] Speaker 01:
The first thing that I want to touch on is the government's explanation for why the factual basis changed, which is it's the first time that I have heard that it's because of an interview with Moreno in November, because what the government told the court when the court asked was, and I quote, the original factual basis for Rojo's plea agreement erroneously inverted the two defendants due to an error made by a prior AUSA.

[00:27:05] Speaker 01:
told the court that it was a misinterpretation of the evidence as it was produced in discovery, and it was a reflection, these are all quotes on page six of my AOB, of the prior AUSA's interpretation of the discovery.

[00:27:18] Speaker 01:
So the explanation wasn't that they had done additional investigation and changed it on that basis.

[00:27:23] Speaker 01:
The explanation given previously until today was just that the AUSA interpreted it.

[00:27:28] Speaker 01:
Does it matter?

[00:27:29] Speaker 01:
It doesn't matter.

[00:27:31] Speaker 01:
To the extent that my opponent is saying that all of this evidence about why it changed would have come in, I'm not sure that that evidence is why it changed.

[00:27:41] Speaker 01:
So I just wanted to point that out.

[00:27:42] Speaker 01:
The second thing I want to touch on

[00:27:45] Speaker 01:
counsel's argument that there was no evidence of self-defense, I disagree.

[00:27:50] Speaker 01:
In Officer Moreno's original report, he said that when he got into this confrontation with the person in the brown shirt, the person in the brown shirt said, what's up?

[00:28:02] Speaker 04:
And then—

[00:28:05] Speaker 04:
had a self-defense defense that whether or not additional evidence came in about it, but if there was a defense asserted, isn't that enough to be able to say, I would like to be able to bring in this evidence of the factual statements in a prior plea agreement because it's a statement of a party opponent?

[00:28:23] Speaker 01:
That's correct, Your Honor.

[00:28:24] Speaker 01:
You don't have to get into the evidence.

[00:28:26] Speaker 01:
But there was evidence that Moreno started this conflict by saying, who the fuck do you think you're talking to?

[00:28:32] Speaker 01:
And raised his hand.

[00:28:33] Speaker 01:
And then he told two different stories about why he raised his hand.

[00:28:36] Speaker 01:
We don't have to have that evidence.

[00:28:38] Speaker 01:
But there was evidence of self-defense.

[00:28:42] Speaker 01:
And then the final thing that I wanted to say has to do with the cases

[00:28:50] Speaker 01:
that the government has cited the recent out-of-circuit cases interpreting the use of a dangerous weapon part of 111B, which I think that this offense is divisible.

[00:29:07] Speaker 01:
The use of a dangerous or deadly weapon is different than causation of bodily injury.

[00:29:11] Speaker 04:
Can you answer the question that I asked earlier on the other side, which is, can the attempted battery

[00:29:18] Speaker 04:
under Section 111, sweep in reckless conduct?

[00:29:22] Speaker 04:
It can.

[00:29:23] Speaker 04:
Okay.

[00:29:23] Speaker 04:
Can you give me an example of that?

[00:29:25] Speaker 01:
An example of that would be that somebody goes to commit just a simple assault, the kind of thing that would fall under 111A, and then without intending or knowing to

[00:29:41] Speaker 01:
apply a level of force that actually caused bodily injury.

[00:29:44] Speaker 01:
So maybe they just want to touch somebody but accidentally fall into them and cause them to fall over.

[00:29:52] Speaker 01:
There are accidental, reckless, and negligent ways that injury can occur without intent or knowledge.

[00:29:57] Speaker 01:
And I think somebody accidentally falls down the stairs after somebody only intends to threaten them in that way.

[00:30:09] Speaker 03:
Thank you.

[00:30:10] Speaker 03:
Thank you very much.

[00:30:11] Speaker 03:
We thank both counsel for their arguments this morning and this matter is submitted.

[00:30:15] Speaker 03:
Thank you.