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

[00:00:09] Speaker 00:
My name is Carol Lamrow.

[00:00:10] Speaker 00:
I am counsel for Mr. Jose.

[00:00:13] Speaker 00:
I'm going to attempt to reserve about seven minutes, but I'll watch my time.

[00:00:16] Speaker 00:
So this case presents a number of different substantive issues.

[00:00:21] Speaker 00:
So given time limitations, I intend to spend most of my time discussing the assault issues.

[00:00:27] Speaker 00:
And we'll also attempt to address briefly the Rule 608 issue as well as the government's cross-appeal issue.

[00:00:35] Speaker 00:
The assault issues, we raised three different assault claims.

[00:00:38] Speaker 00:
And though they are distinct, they're interrelated to an extent because they all depend on

[00:00:44] Speaker 00:
the elements of the charge defense here, which is 113A3 assault, which is assault with a dangerous weapon and intent to do bodily harm, as well as the elements of the underlying offense of assault.

[00:00:59] Speaker 00:
So the first claim is that the district court erred in refusing to provide a jury instruction about the lesser included offense of assault.

[00:01:09] Speaker 00:
And I believe it's undisputed by the parties that the first element of that test is met

[00:01:13] Speaker 00:
that simple assault is a lesser included offense of an A3 assault.

[00:01:19] Speaker 00:
And we also, our position here is that it was also factually available because the jury in this case could have convicted Mr. Jose of a simple assault rather than an A3 assault if it found that he intentionally shot towards the victim, but in doing so did not intend bodily harm.

[00:01:39] Speaker 00:
And so this was, that would depend.

[00:01:42] Speaker 02:
I mean, this may get into one of your other issues depends on what the theory of assault is because of an assault, um, can be either a willful intent to inflict injury on another or by threat to create reasonable apprehension of immediate bodily harm.

[00:02:05] Speaker 02:
And there wasn't a factual basis for that one because she said she

[00:02:09] Speaker 02:
She didn't have the apprehension.

[00:02:11] Speaker 02:
So the theory of simple assault is willful attempt to inflict injury.

[00:02:17] Speaker 02:
Here the factually, the attempt to inflict the injury is with a firearm.

[00:02:23] Speaker 02:
How do you possibly willfully attempt to inflict injury with a firearm injury, meaning bodily contact with a firearm without assaulting with a firearm?

[00:02:33] Speaker 02:
It just doesn't seem that you could convict of the

[00:02:39] Speaker 02:
lesser without necessarily having found the greater.

[00:02:43] Speaker 00:
Well, and Your Honor, this really depends on how this Court looks at that willful element.

[00:02:48] Speaker 00:
And there's case law, which we've cited.

[00:02:49] Speaker 00:
I believe Llewellyn is the main case.

[00:02:51] Speaker 00:
That case involved an offensive contact case, but it was assessed under the attempted battery prong.

[00:02:59] Speaker 00:
It said that this would qualify under an attempted battery because in looking at whether a defendant made a willful attempt,

[00:03:06] Speaker 00:
you're looking to whether there was a willful intent to do the act that amounts to unlawful conduct.

[00:03:13] Speaker 00:
Here, because it's clear and undisputed that Mr. Jose intentionally shot towards her, that that

[00:03:22] Speaker 00:
fulfills that part of the element.

[00:03:25] Speaker 00:
And that it doesn't, he doesn't need to, so that the willful refers to the act rather than the intended result.

[00:03:32] Speaker 00:
And Llewellyn supports that.

[00:03:34] Speaker 00:
And then also the very few cases that have looked at assault, an attempted battery assault that doesn't involve actual conduct have come out with, or have

[00:03:48] Speaker 00:
are consistent with our position as well.

[00:03:51] Speaker 00:
So the problem here is that there are very few, even though there are two different forms of assault there, of common law assault, there are very few cases that are assessed under the willful attempt clause that do not involve conduct.

[00:04:04] Speaker 00:
Most of them are actually battery cases.

[00:04:08] Speaker 00:
However, I think to the extent, especially like Llewellyn specifically looked at

[00:04:13] Speaker 00:
that offense under the attempted battery prong.

[00:04:16] Speaker 00:
And so that reasoning applies with equal force.

[00:04:19] Speaker 00:
And those cases are clear that WOLFA refers to the volitional act rather than the intended result.

[00:04:26] Speaker 00:
And again, that an intentional intent to injure, specific intent to injure is not required.

[00:04:32] Speaker 00:
And that is something that does separate in this case a

[00:04:36] Speaker 00:
simple assault from an A3 assault.

[00:04:39] Speaker 02:
Right.

[00:04:39] Speaker 02:
A willful attempt to injure is not required if you are, the theory of assault is that you created, you attempted to scare them, create a reasonable apprehension of fear.

[00:04:52] Speaker 02:
But it wasn't a factual basis for that because she said she didn't have the reasonable apprehension.

[00:04:57] Speaker 00:
Well, that kind of does get into my second issue, which does depend on, um,

[00:05:03] Speaker 00:
But for instance, the model instruction in the Ninth Circuit does encompass, does seem to suggest that you either have to have a contact assault or if you have a non-contact assault that you need to have a display of force that causes a reasonable apprehension of bodily harm.

[00:05:22] Speaker 00:
And so there is a question to an extent as to whether you can have a non-contact battery under the first prong

[00:05:33] Speaker 00:
common law assault, whether or not that requires an apprehension of harm.

[00:05:39] Speaker 00:
And again, this is the problem.

[00:05:41] Speaker 00:
We get to this problem here because so many of the cases, there's very few cases that deal with these factual circumstances where you have really a threat.

[00:05:51] Speaker 00:
It's a threat to commit an assault, but then there's no reasonable apprehension.

[00:05:57] Speaker 00:
And so

[00:05:58] Speaker 00:
But the cases, the limited cases that have dealt with similar scenarios do support our position.

[00:06:03] Speaker 00:
That includes, it's Dat Kwok Do, I believe is how it's pronounced.

[00:06:08] Speaker 00:
Also Acosta Sierra, which was a 111B case, so there is a little... But this would water down assault.

[00:06:16] Speaker 02:
I mean, the way the alternatives are laid out, that it's willful attempt to inflict injury on another,

[00:06:26] Speaker 02:
or it can be threat to inflict injury that creates reasonable apprehension.

[00:06:32] Speaker 02:
If there's no reasonable apprehension and no actual attempt to inflict injury, then there's no assault.

[00:06:39] Speaker 02:
Maybe it's some other crime, some sort of criminal threats, but it's not an assault.

[00:06:44] Speaker 02:
And you're trying to sort of mix and match between the two to create a lesser, non-existent kind of assault and then say that was the lesser that they could have found.

[00:06:55] Speaker 02:
That's not the options the common law definition of assault gives us.

[00:07:00] Speaker 00:
I disagree, Your Honor, to that extent that there is case law here that does support our interpretation that you can commit an attempted battery without requiring a specific intent to injure.

[00:07:20] Speaker 02:
Correct, by creating reasonable apprehension.

[00:07:24] Speaker 00:
Well, I think that also falls under the other prong, the reasonable apprehension prong.

[00:07:27] Speaker 00:
What distinguishes that from the attempted battery is that you don't need to have even, you could have an accidental under the elements because the definition that this circuit has adopted, which is that assault is either a willful attempt to inflict injury or a threat to inflict injury when coupled with apparent presentability causes reasonable apprehension.

[00:07:48] Speaker 00:
That second form doesn't require even an intent to

[00:07:53] Speaker 00:
I think you could even have something where if you do something that reasonably causes harm.

[00:07:57] Speaker 02:
Correct.

[00:07:58] Speaker 02:
But an element of that alternative is causes a reasonable apprehension.

[00:08:02] Speaker 02:
That was not, there was, the evidence does not support that theory in this case, which is why the court dropped it out.

[00:08:10] Speaker 02:
And once you drop it out, what remains is not a lesser that could be found separately from the greater.

[00:08:19] Speaker 00:
Well, I think that, again, depends on whether or not you can willful.

[00:08:26] Speaker 00:
It all comes down to defining willful and what willful modifies in this case.

[00:08:30] Speaker 00:
And again, Llewellyn supports this.

[00:08:33] Speaker 00:
I also think that Acosta Sierra does.

[00:08:37] Speaker 00:
And in the Dew case, which was a case out of Oregon, involved a defendant who had fired six separate shots at a vehicle while he was tailgating during a tailgating incident.

[00:08:50] Speaker 00:
And in looking at the elements of simple assault and also A3 assault, the court said that, and there was no evidence in that case of apprehension.

[00:08:59] Speaker 00:
I believe I looked at the facts of that case as well that I believe several of the victims did not even see the first shots.

[00:09:07] Speaker 00:
And there was no claim by the government or either party that there was any apprehension.

[00:09:12] Speaker 00:
And yet the court still said that that would be sufficient to be a simple assault.

[00:09:18] Speaker 00:
And then if he possessed a specific intent to do bodily harm, then it could become an A3 assault.

[00:09:25] Speaker 00:
And so I think that there is support in the case law and look at the cases that we cite in the brief for our position.

[00:09:31] Speaker 00:
And also in looking at the court's ruling here, I do think it's clear that in denying the lesser included instruction, the district court was under the

[00:09:40] Speaker 00:
mistaken impression that the only element that differentiated simple assault and A3 assault was the use of a dangerous weapon.

[00:09:50] Speaker 00:
It cited several of the 111 cases which is assault on a federal officer that has different elements of the offense and I think that impacted the court's position as well.

[00:10:02] Speaker 00:
And the lack of instruction in this case was extremely prejudicial because our position is that

[00:10:10] Speaker 00:
the court, excuse me, that the jury could have found him guilty of the simple assault if it found that he intentionally fired towards her but then did not intend her bodily harm.

[00:10:21] Speaker 00:
His intent was a central issue in this case, really as to all charges, but it was what he intended when he fired those shots.

[00:10:30] Speaker 00:
And without the lesser included instruction, the jury was left with this sort of all or nothing determination where they could either

[00:10:38] Speaker 00:
a victim of the greater offense or walk him on that count.

[00:10:42] Speaker 00:
And I think it's also clear in the record that the jury was really struggling with whether that intent component had been met in this case, because they submitted a question that said, if you point a weapon toward someone, toward not at someone in fire shots, is that automatically considered intent to do bodily harm?

[00:11:02] Speaker 00:
So it's clear here that the jury was struggling with this issue.

[00:11:06] Speaker 00:
And then also they found him guilty of voluntary manslaughter based on a reckless theory which also suggests that they accepted that he intentionally fired towards her but did not intend her bodily harm.

[00:11:24] Speaker 00:
As to the next claim, this claim is that the district court gave an erroneous instruction as to the aggravated assault definition.

[00:11:35] Speaker 00:
And in fairness, this really comes up because the issues come up here because the model instruction in this case provides a definition that's different than the definition that's in the case law.

[00:11:49] Speaker 00:
And so the model instruction requires either a battery or an intentional display of force that reasonably caused the victim to fear immediate bodily harm.

[00:11:58] Speaker 00:
And so Mr. Jose argued that they should

[00:12:04] Speaker 00:
that that definition encompassed the facts here because there was an intentional display of force whether you viewed that under an or it was a non-contact intentional display of force.

[00:12:19] Speaker 00:
And also the Eighth Circuit has a similar assault instruction that provides a similar definition which also suggests the potential that a non-contact assault

[00:12:32] Speaker 00:
may require a reasonable apprehension of bodily harm regardless of whether it's a willful attempt or a threatened battery.

[00:12:45] Speaker 00:
And so I think here that even assuming that the court's instruction adequately defined the willful, excuse me, the attempted battery form of assault, that it also should have provided instructions as to both forms of insult

[00:13:02] Speaker 00:
assault because it encompassed Mr. Jose's theory of the defense.

[00:13:06] Speaker 00:
And I think it would have made it easier for him to argue to the jury that he did not intend to shoot her and then to show the different forms of, different elements required under the different forms of assault because these issues can become really confusing.

[00:13:24] Speaker 00:
Let's see.

[00:13:27] Speaker 00:
Next, as to the Rule 608 issue, the district court also erred in precluding Mr. Jose from asking the victim about her pending fraud charges, which would have impeached her character for honesty.

[00:13:40] Speaker 00:
In 2009, she was charged in state court with fraudulent schemes and practices and several counts of false statement.

[00:13:50] Speaker 00:
Mr. Jose attempted to use these at trial, but the district court denied that motion.

[00:13:56] Speaker 00:
because it did not believe there was any legal authority for it since it was not an actual conviction.

[00:14:01] Speaker 00:
But Rule 608B makes clear that the defendant or parties are able to impeach by nonconviction actions and that really the court almost had it in the reverse.

[00:14:16] Speaker 00:
So that Rule 609 applies when it involves prior convictions, but otherwise 608B was applicable here.

[00:14:25] Speaker 00:
And I think that given the importance of her testimony in this case as to Mr. Jose's intent, which again was critical for the assault issue as well as the level of homicide applicable, that this was prejudicial in this case.

[00:14:42] Speaker 00:
It was, so he did, in the motion that was filed, the defense attorney did not specifically cite Rule 608.

[00:14:51] Speaker 00:
However, it was decided, the court decided on Rule 608 grounds.

[00:14:55] Speaker 00:
The government raised the Rule 608 application in their response, and the parties discussed it at the hearing.

[00:15:02] Speaker 00:
And in denying the motion, the court specifically said, I don't think this comes in under Rule 608.

[00:15:07] Speaker 00:
So it is preserved.

[00:15:11] Speaker 00:
But again, her credibility was central to the case, in particular as to his intent.

[00:15:16] Speaker 00:
And so even though he was able to impeach her in some respects because there were issues with her ability to proceed due to intoxication, there was really no other evidence that suggested a propensity for dishonesty.

[00:15:31] Speaker 00:
And this was something that would have also, you know, shown that despite her potential perception issues, that she also could have a character

[00:15:40] Speaker 00:
for untruthfulness, and it should have been allowed to be discussed.

[00:15:43] Speaker 00:
And I'm going to reserve the rest of my time for you.

[00:15:46] Speaker 03:
Thank you, Counsel.

[00:15:48] Speaker 03:
We'll hear from the government.

[00:15:54] Speaker 01:
Good morning, Your Honors, and may it please the Court, Josh Handel, for the United States.

[00:15:58] Speaker 01:
Gilbert Jose admitted to firing his gun multiple times toward the two victims in this case, Billy Johnson and Io.

[00:16:04] Speaker 01:
Now, the first three issues on appeal concern his conviction for assaulting Io with a dangerous weapon.

[00:16:09] Speaker 01:
And I agree with my friend that these are interrelated issues.

[00:16:12] Speaker 01:
I'm happy to go through them in turn.

[00:16:14] Speaker 01:
But the bottom line is that the district court was correct about the elements of attempted battery assault, and that determination forecloses all of Mr. Jose's challenges to this particular conviction.

[00:16:25] Speaker 02:
Well, but her argument is that if you actually parse it out, there's a difference in the mens rea, even on the willful attempt to injure theory of simple assault.

[00:16:39] Speaker 02:
There's a difference between the mens rea for that simple assault and the greater offense.

[00:16:44] Speaker 02:
And that would allow the jury to split between the two and why the lesser should have been given here.

[00:16:52] Speaker 02:
What's your response to that argument?

[00:16:54] Speaker 01:
So Judge Collins, we don't see any daylight between the specific intent required of attempted battery assault, which is attempts to inflict injury upon the person of another.

[00:17:06] Speaker 01:
And the statutory intent element under, um, the assault with a dangerous weapon, uh, offense, which is intent to do bodily harm.

[00:17:15] Speaker 02:
We said, I think in, in Llewellyn that the simple assault, even though it says willful attempt to inflict injury does not require an intent to inflict injury.

[00:17:27] Speaker 01:
So, Your Honor, Llewellyn was dealing with a completed battery, and I think we need to look at what the species of assault were at common law.

[00:17:35] Speaker 01:
Our position is that there were actually three.

[00:17:38] Speaker 01:
There is number one, a completed threat, number two, a completed battery, and number three, an attempted battery.

[00:17:45] Speaker 01:
And here we know this was not a completed battery because unlike Mr. Johnson, IO was not actually shot or injured.

[00:17:52] Speaker 01:
We know this was not a completed threat because IO testified that she was not put in reasonable apprehension.

[00:17:59] Speaker 01:
She didn't even realize that Mr. Jose was firing bullets at the time.

[00:18:04] Speaker 01:
So the evidence was only consistent with an attempted battery theory of assault.

[00:18:10] Speaker 01:
You know, I think there has been, I will admit, there's some fuzzy language with all due respect.

[00:18:15] Speaker 01:
There's some fuzzy language in some of this court's precedents dealing with

[00:18:19] Speaker 01:
generally with completed batteries and talking about them in terms of attempted battery.

[00:18:24] Speaker 01:
But our view is that an attempted battery assault is first and foremost an attempt.

[00:18:29] Speaker 01:
And an attempt at common law was always a specific intent offense.

[00:18:34] Speaker 01:
An attempt requires that you have the specific intent to bring about the result that is the object of the attempt.

[00:18:41] Speaker 01:
Here, that is an attempt to inflict injury upon the person of another.

[00:18:53] Speaker 02:
on the willful intent to inflict injury theory is a specific intent offense, not a general intent offense.

[00:19:01] Speaker 01:
Yes, Your Honor, that's correct.

[00:19:02] Speaker 01:
And just to kind of, I don't know if this will be helpful or not, but the analogy that I've been thinking about in terms of how willfulness interacts with the specific intent is that

[00:19:12] Speaker 01:
If my friend and I go to the boxing ring and we decide to spar for an hour, he very well might have the specific intent to inflict injury upon my person.

[00:19:23] Speaker 01:
He might be trying to knock me out.

[00:19:25] Speaker 01:
He is certainly trying to hit me in the head.

[00:19:27] Speaker 01:
These are all the specific intent required under this statute.

[00:19:31] Speaker 01:
But that's not willful, because we are agreeing to do this together.

[00:19:35] Speaker 01:
It's legitimate, it's consensual, and it's lawful.

[00:19:38] Speaker 01:
And so those are two separate mens reas that were both instructed to the jury and the jury had to find that Mr. Jose had the specific intent to inflict injury upon the person of IO and also that his conduct was willful, meaning that he did it with a consciousness of culpability.

[00:19:58] Speaker 01:
He knew that it was against the law.

[00:19:59] Speaker 01:
And there's no inconsistency there, and I think that that is the best reading of attempted battery assault.

[00:20:06] Speaker 01:
It's consistent with the common law's view of attempted battery assault itself, and it's also consistent with the background principle that attempt is always a specific intent offense, right?

[00:20:19] Speaker 01:
And I don't think there's anything unusual about that.

[00:20:22] Speaker 01:
I mean, we typically-

[00:20:24] Speaker 02:
Yeah.

[00:20:25] Speaker 02:
I mean, the completed battery is a battery and can be charged as a battery, but under your theory that an assault, which is an attempted battery, is a specific intent offense, the accidental shooting is not an assault, but it may be a battery.

[00:20:44] Speaker 01:
I think that's right with a couple of caveats.

[00:20:48] Speaker 01:
So the first caveat is that we believe that a completed battery is a type of assault at common law.

[00:20:55] Speaker 01:
It would not be an attempted battery assault, which was the theory that was put forward

[00:20:59] Speaker 01:
in this case, and consistent with the trial evidence.

[00:21:02] Speaker 01:
I also don't think there's anything unusual about that, right?

[00:21:05] Speaker 01:
We generally charge defendants with responsibility for the real-world consequences that materialize from their volitional acts, but we require a heightened mens rea when something has not actually materialized in harm, but we are still proceeding on an Inquit offense theory-like attempt.

[00:21:26] Speaker 01:
So there's nothing unusual about that.

[00:21:28] Speaker 01:
It's consistent with the common law.

[00:21:29] Speaker 01:
It's consistent with criminal law and with what this court said in Acosta Sierra differentiating between the different types of assault.

[00:21:38] Speaker 01:
I did just want to respond to a couple of points that were made in the opening argument.

[00:21:44] Speaker 01:
So first, with respect to model instruction 8.5, we do view that as under-inclusive of the types of assault that are recognized at common law.

[00:21:56] Speaker 01:
We think that the model instruction

[00:21:57] Speaker 01:
correctly encompasses two forms of common law assault, the completed threat and completed battery, but does not provide the requisite elements for attempted battery.

[00:22:07] Speaker 01:
And I would just point out that in the introduction to the model instructions, this court made clear they are not mandatory, they have not been adopted or approved by the Ninth Circuit,

[00:22:17] Speaker 01:
and they need to be carefully reviewed with additional legal research and analysis performed when needed before being used in any specific case.

[00:22:24] Speaker 01:
And then there is an explicit proviso right in the intro to the model instructions saying the Ninth Circuit does not adopt these instructions as definitive indeed occasionally the correctness of a given instruction may be the subject of a Ninth Circuit opinion.

[00:22:38] Speaker 01:
So we believe that that instruction is under inclusive as to attempted battery assault

[00:22:43] Speaker 01:
which was the theory of the case that was consistent with the trial evidence and the only one that was appropriate for the district court to instruct the jury on.

[00:22:53] Speaker 01:
I don't understand Mr. Jose to have made kind of a generalized challenge to the sufficiency of the evidence underlying this count, aside from his view that assault always requires the victim to be put in reasonable apprehension.

[00:23:11] Speaker 01:
To the extent that your honors read his challenge more broadly, I just want to point out a couple of pieces of evidence that we put before the jury.

[00:23:20] Speaker 01:
So Mr. Jose admitted to pulling out his pistol, loading it, and shooting toward IO at close range for no reason that he could explain.

[00:23:28] Speaker 01:
As you said in Acosta Sierra, it is permissible for a fact finder to infer that a person intends the natural and probable consequences of acts done knowingly.

[00:23:37] Speaker 01:
I think layered on top of that is the fact that Mr. Jose told

[00:23:41] Speaker 01:
three or four different inconsistent stories over the course of his interviews with law enforcement.

[00:23:47] Speaker 01:
After the fact, he's brought in and his first statement to law enforcement is, I don't own a gun, I wasn't there, I didn't shoot at anybody.

[00:23:55] Speaker 01:
His second statement was, okay, I own a gun, I was there, I shot bullets but it wasn't in the direction of anyone.

[00:24:01] Speaker 01:
His third statement is, yes, I was there and I shot toward them but I wasn't trying to

[00:24:07] Speaker 01:
specifically injure or kill either of them.

[00:24:11] Speaker 01:
And only after that does he come back with this idea that he was put in fear because they were approaching him and yelling and this kind of self-defense notion.

[00:24:20] Speaker 01:
So I think given the inconsistency in his statements to law enforcement, on top of this axiomatic phrase that we have from Acosta Sierra that jurors are able to infer intent from actions, there was ample evidence from which the jury could have and did

[00:24:36] Speaker 01:
convict on this count.

[00:24:39] Speaker 01:
Unless there are further questions about assault, I will briefly touch on the impeachment issue.

[00:24:47] Speaker 01:
So as a threshold matter, this issue is appropriately reviewed for plain error.

[00:24:52] Speaker 01:
As I believe Your Honor pointed out, Mr. Jose's motion never mentioned Rule 608.

[00:24:56] Speaker 02:
It was instead... The counsel's response is that the government then discussed it and the district court in the ruling discussed it.

[00:25:03] Speaker 02:
If it makes it into the ruling, then it's preserved.

[00:25:06] Speaker 01:
Well, you know, that could be the case, and I'm not going to put up a huge fight on this, but I would point out that, yes, the government did discuss Rule 608 in their response, and then Mr. Jose again did not discuss Rule 608 or advance any contention under it in his reply, and that's at pages 211 to 214 of the record excerpts.

[00:25:25] Speaker 01:
So I think we have, like, almost a voluntary relinquishment of the Rule 608 claim, but...

[00:25:31] Speaker 01:
Sure.

[00:25:33] Speaker 01:
Again, I'm not going to live or die on the forfeiture question.

[00:25:37] Speaker 01:
Under any standard of review, the district court appropriately excluded admission of the pending charges against IO.

[00:25:44] Speaker 01:
Arrest warrants and bear charges without more

[00:25:47] Speaker 01:
are not criminal convictions for purposes of Rule 609 and they are not even specific instances of conduct for purposes of Rule 608.

[00:25:55] Speaker 01:
And those charges are all that Mr. Jose asked the court to admit.

[00:25:59] Speaker 01:
He never identified for the district court or for the government what the acts underlying those charges were.

[00:26:05] Speaker 01:
So I think that this is, it's maybe a little bit of a difficult question whether this falls more under the 608 or 609

[00:26:13] Speaker 01:
rubric, because these are just charges.

[00:26:16] Speaker 01:
They are just judicial instruments.

[00:26:18] Speaker 01:
They are not instances of conduct, but they are also not convictions.

[00:26:22] Speaker 01:
The district court was well within its discretion to deny admissibility on that ground.

[00:26:28] Speaker 01:
I would point out that the record also reveals other reasons that independently counseled against going down this path.

[00:26:34] Speaker 01:
So as the government pointed out, any questioning as to the conduct underlying IO's pending criminal charges would have implicated her Fifth Amendment rights.

[00:26:42] Speaker 01:
which would have required, among other things, appointing counsel and determining whether she was willing to waive those rights in order to testify.

[00:26:49] Speaker 01:
If she would not waive her protection, or if she had gotten up on the stand and denied culpability for these pending charges, as it was reasonable to assume she would have since she had not pleaded guilty or otherwise been convicted of them, Mr. Jose would have been prohibited by Rule 608B from inducing extrinsic evidence to prove her guilt.

[00:27:08] Speaker 01:
So I think it was well within the district court's discretion to decide that in these circumstances, Mr. Jose would not be permitted to go on a fishing expedition based on arrest warrants alone.

[00:27:18] Speaker 01:
I would like to just very briefly discuss the government's counterclaim.

[00:27:25] Speaker 01:
So there's no dispute that the offense of which Mr. Jose was convicted in count one, voluntary manslaughter, is a crime of violence under this court's decisions in Begay and Draper.

[00:27:36] Speaker 01:
And there's no dispute that as a general matter, precedential holdings of this court, like those in Begay and Draper, apply to cases pending on direct appeal.

[00:27:44] Speaker 01:
That's what you said.

[00:27:45] Speaker 01:
in United States versus Doar, which we cite in our brief.

[00:27:48] Speaker 01:
The only question controverted between the parties here is whether applying those holdings in this case would violate the buoy test.

[00:27:55] Speaker 01:
And the buoy test requires Mr. Jose to make two showings.

[00:27:58] Speaker 01:
First, he has to show that his conduct was innocent at the time it was committed, and second, he has to show that the judicial reinterpretation rendering his conduct criminal was so unforeseen or unexpected as to violate his due process rights.

[00:28:12] Speaker 01:
He cannot make either of those showings.

[00:28:15] Speaker 01:
He fills both prongs of the Bowie test here.

[00:28:17] Speaker 01:
Number one, Mr. Jose's conduct was not innocent.

[00:28:20] Speaker 01:
So unlike the lunch counter sit-ins that South Carolina was attempting to retroactively punish in Bowie, committing voluntary manslaughter by shooting someone to death with extreme disregard for human life has never been innocent conduct.

[00:28:35] Speaker 01:
And even if we were just to kind of limit our aperture to the technical legal question of legal innocence under Section 924C, Mr. Jose's conduct was still not innocent.

[00:28:48] Speaker 01:
At the time Mr. Jose shot and killed Billy Johnson in 2018, voluntary manslaughter was a crime of violence under Section 924C's residual clause, which would not be judicially invalidated until a year later.

[00:29:00] Speaker 01:
in United States versus Davis.

[00:29:02] Speaker 01:
So he cannot show substantive innocence or legal innocence at the time that he committed that he committed this manslaughter.

[00:29:10] Speaker 01:
Second, deeming voluntary manslaughter a crime of violence was not a radical and unforeseen departure from former law

[00:29:17] Speaker 01:
as this court said in its Webster decision interpreting and applying the Bowie test.

[00:29:22] Speaker 01:
As I just noted, this was already a crime of violence at the time of the shooting under the residual clause of 924C.

[00:29:29] Speaker 01:
And even aside from the residual clause, this court had not yet held in 2018 that recklessness offenses fell outside of 924C's elements clause.

[00:29:39] Speaker 01:
So at the end of the day, voluntary manslaughter was a crime of violence when Mr. Jose committed it.

[00:29:44] Speaker 01:
It is a crime of violence today.

[00:29:45] Speaker 01:
He cannot escape punishment under Section 924C because there was a brief interim period between his commission of the offense and his direct appeal when circuit case law held otherwise.

[00:29:57] Speaker 01:
I'm happy to take any other questions that you have about these issues or any others.

[00:30:02] Speaker 01:
If there are no further questions, I'll rest on our briefs and respectfully request that you affirm Mr. Jose's convictions on Counts 1, 2, and 4, that you reinstate his conviction on Count 3, that you vacate the sentencing package that the district court adopted, and remand for re-sentencing as to all counts.

[00:30:18] Speaker 03:
So, Council, let me just ask you on the remand, don't we normally just remand for the court to conform the oral pronouncement with the written verdict, with the written judgment?

[00:30:30] Speaker 01:
So Your Honor, the written judgment here, the district court had already set aside the conviction on count three and did not enter a sentence on that count.

[00:30:40] Speaker 01:
So I think that it's necessary for this court to vacate the entire sentencing package.

[00:30:45] Speaker 03:
Only if we reinstate that, correct?

[00:30:48] Speaker 01:
Correct, yes.

[00:30:49] Speaker 01:
If you agree with that.

[00:30:50] Speaker 03:
If we don't reinstate that, don't we normally just send the case back for the district court to conform

[00:30:59] Speaker 03:
the written judgment to the oral pronouncement on the conditions?

[00:31:05] Speaker 03:
So, Your Honor, again, I think that... Just answer my question first and then tell me what you think about it.

[00:31:12] Speaker 03:
But isn't that what we normally do?

[00:31:14] Speaker 01:
I think that's correct when there's a discrepancy between the oral judgment and the written judgment, but I don't think that's the case here.

[00:31:23] Speaker 01:
Both the oral judgment that the district court entered at sentencing and the written judgment that followed on the docket do not have a conviction or sentence entered for

[00:31:34] Speaker 01:
count three.

[00:31:35] Speaker 01:
If this court disagrees with our cross-appeal and does not reinstate the conviction on count three, then I think the appropriate disposition is to affirm across the board.

[00:31:48] Speaker 03:
Okay, just real quick as to the 924C claim.

[00:31:58] Speaker 00:
As the government notes, I don't think we really have a way around

[00:32:03] Speaker 00:
of the applicability of Draper here.

[00:32:05] Speaker 00:
I just wanted to point out a couple of things.

[00:32:08] Speaker 00:
One is that I think that the innocence referred to in Bowie isn't necessarily a factual innocence.

[00:32:15] Speaker 00:
It's a legal innocence of the applicable crime.

[00:32:18] Speaker 00:
And that's true in this case, that at the time Draper was decided, he was legally innocent of 924C until that new interpretation.

[00:32:28] Speaker 00:
I also do agree that if this court does

[00:32:31] Speaker 02:
And how was he innocent at that time in 2018?

[00:32:35] Speaker 00:
Well, because my understanding of the case law was that you had to have, in order for a crime to be a crime of violence under 924C, that it had to involve intentional or knowing conduct.

[00:32:49] Speaker 02:
In this circuit, that reckless conduct was not... But your opposing counsel said that in 2018, the residual clause had not yet been invalidated.

[00:33:00] Speaker 02:
that didn't come until later.

[00:33:03] Speaker 00:
My understanding of looking at this is just in the circuit that because voluntary manslaughter in Quijada, Aguilar had been found to be not a crime of violence, also involuntary manslaughter, not a crime of violence in Benali, that that was the state of the law in this circuit at the time.

[00:33:21] Speaker 00:
That's my understanding of the law.

[00:33:23] Speaker 00:
Also, I do agree with the government that if this case does go back on this issue,

[00:33:29] Speaker 00:
that it should be for a full re-sentencing.

[00:33:31] Speaker 03:
I had this case confused with a different case where there was discrepancy between the oral pronouncement and the written judgment.

[00:33:38] Speaker 03:
That's not this case, so I agree.

[00:33:40] Speaker 03:
But I wanted to ask you about Draper.

[00:33:44] Speaker 03:
What's your view on how Draper affects this case?

[00:33:47] Speaker 00:
I think that Draper affects this case to the extent that

[00:33:54] Speaker 00:
I think that I can't get around the ruling of Draper's applicability.

[00:33:58] Speaker 00:
It's a voluntary manslaughter case.

[00:34:01] Speaker 00:
So our position is just that it shouldn't apply in this case and that we think that- Why not?

[00:34:05] Speaker 00:
I think that Bowie's satisfied here.

[00:34:07] Speaker 00:
I think that in the circuit it was established that at the time of the offense, it was well established that you needed to have an intentional or knowing act.

[00:34:18] Speaker 00:
We didn't have that here.

[00:34:19] Speaker 00:
And so I think that he should get the benefit of that for-

[00:34:24] Speaker 03:
So Council, you would agree that Draper applies.

[00:34:28] Speaker 03:
You're not saying that it shouldn't apply retroactively.

[00:34:32] Speaker 03:
That's not your argument, right?

[00:34:33] Speaker 00:
No, I'm saying that normally it would, but I think that because we're saying Bowie applies in this case, in this particular instance, that's our position.

[00:34:43] Speaker 00:
Also, just briefly, one other point I wanted to make.

[00:34:47] Speaker 00:
I looked back at Acosta Sierra, the facts of that case.

[00:34:51] Speaker 00:
I think support our claim that the willful intent refers to the act rather than the intended result.

[00:34:58] Speaker 00:
In that case, this court looked at whether the defendant throwing a rock at a Border Patrol agent who did not perceive the rock as being thrown could be a willful attempt under the attempted battery clause.

[00:35:11] Speaker 00:
In that case, they said it could because he deliberately threw the rock at him.

[00:35:17] Speaker 00:
towards him.

[00:35:18] Speaker 00:
So instead of looking at whether he intended to cause an injury, they look specifically at whether he deliberately threw the rock.

[00:35:24] Speaker 00:
And I think that really supports our case here.

[00:35:26] Speaker 00:
In that case, too, the court specifically said that because the officer did not perceive it happening, that it couldn't come in under the apprehension prong.

[00:35:39] Speaker 00:
And unless this court has any further questions, I am all done.

[00:35:44] Speaker 03:
It appears not.

[00:35:45] Speaker 03:
Thank you, counsel.

[00:35:45] Speaker 03:
Thank you to both counsel.

[00:35:47] Speaker 03:
The case just argued is submitted for decision by the court.

[00:35:50] Speaker 03:
Our final case on calendar for argument today is Cancino's Men, CEO versus Garland.