[00:00:00] Speaker 03:
the second case set for argument.

[00:00:07] Speaker 03:
And that is United States versus Walt Hall, case number 22-50204.

[00:00:29] Speaker 03:
Mr. Coleman.

[00:00:30] Speaker 04:
Yes.

[00:00:30] Speaker 04:
Good morning, Ben Coleman for appellant John Walthall.

[00:00:34] Speaker 04:
Mr. Walthall did not ask his fellow inmate, Antonio Rodriguez, or the undercover officer to kill the federal officials.

[00:00:43] Speaker 04:
The government has abandoned a theory that he asked them to attempt

[00:00:48] Speaker 04:
to murder the officials and they can see that they cannot rely on a theory that he asked them to conspire to kill the federal officials.

[00:00:57] Speaker 04:
So really what they're left with at this point is a theory that he asked them to aid and abet the murder.

[00:01:05] Speaker 04:
And I think the easiest way to resolve this case, rather than going down the line of looking at the statutory language of Section 373 and this record and perhaps more complicated issues, the easiest way to resolve this case is that the jury was not instructed on such a theory.

[00:01:25] Speaker 04:
And the government has not responded to that issue.

[00:01:29] Speaker 04:
And this court has made clear, even as recently as last week, that this court cannot affirm convictions based on a theory that the jury was not instructed on.

[00:01:39] Speaker 02:
Well, Mr. Coleman, if we take the evidence in the light most favorable to the government, as we have to for the sufficiency challenge,

[00:01:46] Speaker 02:
Doesn't the evidence support the conclusion that he wanted somebody to murder the officials, maybe not the people he was directly talking to, but the fictitious Colombians or someone he wanted to murder them, right?

[00:02:03] Speaker 04:
Yes, he expressed a desire that the officials be killed.

[00:02:06] Speaker 02:
And so the statute says, you know,

[00:02:09] Speaker 02:
With intent that another person engage in conduct constituting a felony.

[00:02:13] Speaker 02:
So he intends for some other person to engage in murder Solicits commands induces or otherwise endeavors to persuade such other person So why isn't if he hopes that the Colombians will kill the judge and he talks to his inmate and says, you know

[00:02:32] Speaker 02:
I want you to arrange for the Colombians to kill the judge.

[00:02:35] Speaker 02:
Why isn't that otherwise endeavoring to persuade the killer to commit the crime?

[00:02:42] Speaker 02:
He's endeavoring to persuade by talking to the inmate, who in turn will talk to the other person.

[00:02:47] Speaker 04:
Well, we have a few responses.

[00:02:51] Speaker 04:
One is, I do think that when it says another person, it means an actual person, a real person, not someone that's a figment of your own imagination.

[00:02:59] Speaker 04:
But putting that aside for a second.

[00:03:02] Speaker 03:
Let's, I don't wanna go down, but a figment of your imagination, this was not a figment of his imagination.

[00:03:12] Speaker 03:
He imagined that these individuals that he was soliciting, John and Rodriguez, were actually gonna hire a real person to go out and kill somebody.

[00:03:21] Speaker 04:
Well, I don't believe that's what the record shows.

[00:03:24] Speaker 04:
The record shows that he was gonna arrange

[00:03:27] Speaker 04:
however so for the Colombian hitmen to come to the United States.

[00:03:31] Speaker 04:
And then after the murder, the murders occurred, he was going to have the brother-in-law, the undercover agent, supervise payment through missing gold and Canadian trust accounts worth hundreds of millions of dollars.

[00:03:45] Speaker 04:
He was then going to have that payment made to them after the murders occurred.

[00:03:50] Speaker 04:
But to get back to Judge Miller's question, what I think you're saying is that he solicited, let's say, another person, a real person, either the Rodriguez or the agent.

[00:04:05] Speaker 04:
But again, it's to aid and abet the murder.

[00:04:07] Speaker 04:
I really think it's more like a conspiracy to murder, is what he's saying, is I want you to be involved in this plan.

[00:04:12] Speaker 04:
where somebody else is going to go kill the officials.

[00:04:16] Speaker 04:
And if the government had requested an aiding and abetting instruction, then maybe we'd be here on a different footing.

[00:04:22] Speaker 04:
But he hasn't

[00:04:25] Speaker 04:
the underlying crime of violence was that he asked somebody else to kill these, that's what he was charged with, asking somebody else to kill these federal officials.

[00:04:36] Speaker 04:
And he didn't ask the two people that he supposed, the government's theory was there were two people he solicited, and he didn't ask either of them to kill the federal officials.

[00:04:43] Speaker 03:
In fact, he asked the opposite.

[00:04:45] Speaker 03:
I'm confused by your other theory, and I don't want to divert, but

[00:04:49] Speaker 03:
I mean, Walthall responded by telling Rodriguez that he didn't want John to do these things directly, but he wanted John to hire somebody that can be at a distance to ensure plausible deniability.

[00:05:01] Speaker 03:
I read that to mean he was asking John to go out and find somebody who could commit the murder.

[00:05:07] Speaker 03:
Maybe I'm honest.

[00:05:08] Speaker 04:
Yeah, well, what happens is there are a few different things that are said, but I think ultimately,

[00:05:15] Speaker 04:
When he's having the conversation with John, the undercover, and he's having the conversation with him, he's saying, look, I don't want to pay these guys ahead of time.

[00:05:27] Speaker 04:
They're going to take the money and whatever it is.

[00:05:29] Speaker 04:
They're going to run up the bills.

[00:05:30] Speaker 04:
They're going to do whatever.

[00:05:32] Speaker 04:
So we need to pay them after.

[00:05:34] Speaker 04:
Payments is going to occur after the murders go down.

[00:05:37] Speaker 04:
It was the same thing.

[00:05:38] Speaker 04:
He was going to pay John.

[00:05:40] Speaker 04:
the undercover after everything was done.

[00:05:42] Speaker 04:
His theory is that after everything is done, then everybody will get paid through this supposed $100 million worth of missing gold that's going to be deposited into Canadian Trust accounts.

[00:05:54] Speaker 04:
I mean, it's all crazy, but it's not even happening before the murders.

[00:05:58] Speaker 03:
So that really your position, just so I'm clear, because this was not what I'd understood it before.

[00:06:03] Speaker 03:
Your position is he never asked John or Rodriguez to go out and find somebody to kill.

[00:06:11] Speaker 03:
I actually think your argument would be stronger if this were the case.

[00:06:13] Speaker 03:
That's why I'm asking this.

[00:06:15] Speaker 03:
I thought your theory was he asked John and Rodriguez to go hire a third person that he didn't want.

[00:06:24] Speaker 03:
He didn't want any his hands on it at all.

[00:06:27] Speaker 03:
And that that's what was going to happen.

[00:06:28] Speaker 03:
But now what I'm hearing you say is, no, he'd arranged separately for this imaginative murder to happen.

[00:06:34] Speaker 03:
And he was going to he'd only asked John and Rodriguez to, I guess, clean up the mess and and and make the payments.

[00:06:43] Speaker 03:
Am I am I understanding?

[00:06:44] Speaker 04:
Well, I mean,

[00:06:46] Speaker 04:
In his mind, how this is going to happen.

[00:06:48] Speaker 04:
I mean, he hasn't said that he went out and asked anybody.

[00:06:51] Speaker 04:
He thinks that there's a 16-person hit squad from Colombia that's going to come to the United States.

[00:06:56] Speaker 04:
I mean, those are the only people that are ever referenced out of doing anything.

[00:06:59] Speaker 04:
In his mind, somehow, these people are going to magically arrive in the United States to do this.

[00:07:04] Speaker 04:
I mean, he hasn't asked anybody to.

[00:07:08] Speaker 04:
He hasn't asked any Colombian hit men.

[00:07:09] Speaker 04:
He hasn't asked anybody to ask any Colombian hit men.

[00:07:13] Speaker 02:
Look, on that last point, doesn't the evidence

[00:07:17] Speaker 02:
support the inference that he thought that John and Rodriguez would arrange for the Colombian hitmen to come?

[00:07:25] Speaker 02:
So isn't that like he's using John and Rodriguez to otherwise endeavor to persuade the Colombian hitmen to carry out the murder, right?

[00:07:35] Speaker 04:
Well, I don't think so because John asks him, well, can I get in touch with the Colombian hitmen?

[00:07:42] Speaker 04:
And he says, no.

[00:07:44] Speaker 04:
The only thing I want you to do right now is to arrange for you to either shoot in a cell phone into the prison or orchestrate some laser-based optic communication facility by which we can have secure communications.

[00:08:01] Speaker 03:
So your theory really does rise or fall on the fictional solicitation because, and I'm sorry, I just had not read the record this way, but the way you're reading it is that he never even solicited a real person to do the murder or to hire a murderer.

[00:08:22] Speaker 04:
Correct.

[00:08:23] Speaker 04:
But again, the government's theory

[00:08:26] Speaker 04:
I mean, the way the case was instructed to the jury and argued to the jury, the government's theory is that he asked either Rodriguez or the undercover agent to kill the federal officers.

[00:08:37] Speaker 03:
And maybe that's why I'm relying on that.

[00:08:39] Speaker 03:
And I guess to a certain degree, we have to accept that, right?

[00:08:42] Speaker 03:
Because that's what the jury heard.

[00:08:44] Speaker 03:
And there's evidence to support that.

[00:08:46] Speaker 03:
So even if your theory is viable, aren't we stuck with what the jury did?

[00:08:52] Speaker 04:
Well, I guess I'm confused.

[00:08:54] Speaker 04:
I don't think there is evidence that he asked Rodriguez.

[00:08:57] Speaker 03:
Oh, and that's your sufficiency evidence argument?

[00:09:00] Speaker 04:
Correct, that he never asked them.

[00:09:02] Speaker 04:
In fact, he specifically told them, I don't want you to kill them.

[00:09:05] Speaker 04:
I want you to be removed by six to 12 layers of people that are- No, I'm sorry.

[00:09:10] Speaker 03:
I don't think the government is saying that he asked them to kill him.

[00:09:13] Speaker 03:
The government's theory, I think, as you're saying, is that he asked John or Rodriguez to arrange the killing.

[00:09:21] Speaker 04:
or to somehow participate in this conspiracy, which is why I think this is where the problem breaks down.

[00:09:28] Speaker 04:
This case, if it's going to be properly, I guess, considered in the vicarious liability framework, it's a solicitation to engage in a conspiracy to murder.

[00:09:42] Speaker 04:
I think best case scenario, that's really what we have here.

[00:09:45] Speaker 04:
But conspiracy to murder is not a crime of violence under the category.

[00:09:47] Speaker 03:
So conspiracy to murder isn't aiding and abetting would be?

[00:09:51] Speaker 03:
But they didn't push that theory?

[00:09:54] Speaker 04:
Correct.

[00:09:54] Speaker 04:
I mean, arguably, they could proceed under an aiding and abetting theory under the categorical approach.

[00:10:01] Speaker 04:
But they did not request the jury instruction on aiding and abetting.

[00:10:04] Speaker 03:
Well, OK.

[00:10:05] Speaker 03:
So you agree that there was no objection made to the jury instruction, though, right?

[00:10:09] Speaker 04:
Correct.

[00:10:10] Speaker 04:
But there was a Rule 29 motion made.

[00:10:12] Speaker 03:
Okay, so we're reviewing this for plain error?

[00:10:14] Speaker 04:
No, de novo, because there was a Rule 29 motion made at the end of the government's case in chief, and the district court reserved ruling on it.

[00:10:23] Speaker 04:
Okay.

[00:10:24] Speaker 03:
So here's what I was, and I want to hear from the government on this, so I'll raise it now, and I want to hear your response, because I'm not sure this is actually the argument you made, but the language that Judge Miller read

[00:10:35] Speaker 03:
Otherwise endeavors to persuade.

[00:10:38] Speaker 03:
Okay, that's that's right.

[00:10:39] Speaker 03:
But who do you have to otherwise endeavor to persuade such other person?

[00:10:44] Speaker 03:
It seems to me that there's at least some argument that such other person has to be the person that you want to commit the murder That you can't use intermediaries.

[00:10:53] Speaker 03:
I don't I don't know I couldn't find any case law on this but as I understand it the jury instruction itself is

[00:11:00] Speaker 03:
Actually, I mean if there's a problem here there might be a problem with the jury instruction because the jury instruction does not say such other person it Specifically says any person correct.

[00:11:11] Speaker 04:
That's our that's our fallback.

[00:11:12] Speaker 03:
I never made that argument Yes, yes, we did your 29 in the rule 29.

[00:11:16] Speaker 04:
No not in the rule 29 I was a trial lawyer, but not not in the rule 29 Was there an objection on this basis?

[00:11:22] Speaker 04:
No, and I so we have rule 29 de novo jury instructions plain error and

[00:11:27] Speaker 03:
I'm sorry, we're mixing it up.

[00:11:30] Speaker 03:
I'm focused on the jury instruction.

[00:11:31] Speaker 03:
That's where we were confused.

[00:11:33] Speaker 04:
I have an argument that you should review the jury instructions, De Novo, but if you reject that, then jury instructions go in the plain error bucket, sufficiency goes in the De Novo bucket.

[00:11:41] Speaker 04:
I agree that

[00:11:42] Speaker 04:
the jury instructions were defective as well, and I think they were plainly defective.

[00:11:47] Speaker 04:
And based on this record, certainly the third and fourth prongs would be satisfied because this record is a mess.

[00:11:54] Speaker 04:
And the jury certainly could have found in favor of Mr. Walthal if they were correctly instructed that he had to, the person that he actually solicited is the one that had to directly engage in the violent conduct.

[00:12:08] Speaker 04:
So at a very least,

[00:12:09] Speaker 04:
As our default argument, we think the court should reverse for instructional error.

[00:12:13] Speaker 00:
So didn't the Seventh Circuit address this issue?

[00:12:16] Speaker 00:
And I know the Seventh Circuit case in USV White is not binding on us.

[00:12:21] Speaker 00:
But I think it addresses this exact point, which is that a specific person to person request is not required.

[00:12:28] Speaker 00:
That it doesn't really matter anymore after the words come out of your client's mouth whether or not there is any action.

[00:12:39] Speaker 00:
that is requested or made by the person being solicited to coordinate or organize.

[00:12:43] Speaker 00:
So maybe talk to me about why you think White doesn't address this issue.

[00:12:47] Speaker 04:
Well, I think White is different in that what the defendant did in that case is he sent out a blast.

[00:12:52] Speaker 04:
Like, I want you guys to kill this juror or something like that.

[00:12:56] Speaker 04:
So he was making a direct request for somebody to kill the juror.

[00:13:02] Speaker 04:
So it would be like here, I guess, if Mr. Walthall actually sent out a request to 10 different people or just throughout the entire prison said, I want you all to kill these people.

[00:13:19] Speaker 04:
But that's not what he did here.

[00:13:20] Speaker 04:
The only people that he actually spoke to, he told them, I don't want you to kill them.

[00:13:25] Speaker 00:
So I don't know if that- I said, I don't want you to do the actual act, but I want you to coordinate it, to oversee it, to have

[00:13:32] Speaker 00:
this intermediary role.

[00:13:34] Speaker 00:
It doesn't really matter if those are not the individuals.

[00:13:37] Speaker 00:
As I read White, that that doesn't sort of somehow remove the intent, which is the subject of the first clause that Judge Miller was talking about, which is any situation where a person seriously seeks to persuade another to engage in criminal conduct.

[00:13:55] Speaker 00:
I mean, that sort of falls within the ambit of that language.

[00:13:58] Speaker 04:
Right.

[00:13:59] Speaker 04:
And I mean, I think that

[00:14:03] Speaker 04:
look, to such other person, I think it means that the person that you're soliciting, they have to participate directly in the violent conduct.

[00:14:13] Speaker 04:
That's what I think that language means.

[00:14:15] Speaker 03:
Your position would be in white, because I was interested in white.

[00:14:20] Speaker 03:
Your position would be in white.

[00:14:21] Speaker 03:
That actually happened because he did solicit a whole bunch of people

[00:14:27] Speaker 03:
through the email blast, and one of those individuals he expected would commit violence.

[00:14:34] Speaker 03:
We didn't know which person, but at least the communication happened.

[00:14:37] Speaker 02:
Correct.

[00:14:38] Speaker 02:
But then what about our decision in Stewart, where, if I remember that correctly, Stewart asked somebody, I think it was Weiss, to arrange the murder.

[00:14:49] Speaker 02:
And the idea was that Weiss would not commit the murder himself, but he would have his brother-in-law do it.

[00:14:54] Speaker 02:
The brother-in-law was fictitious, but we upheld the conviction there.

[00:15:01] Speaker 02:
So what's your answer to that?

[00:15:02] Speaker 04:
Well, I think there are a few answers.

[00:15:04] Speaker 04:
One is factually what the defendant did in that case is he first actually asked

[00:15:09] Speaker 04:
I think it was Weiss.

[00:15:12] Speaker 04:
He first actually asked Weiss to do the killing.

[00:15:14] Speaker 04:
And then Weiss said, well, I'm going to get my brother-in-law involved as well.

[00:15:16] Speaker 04:
So he actually asked somebody to do the killing.

[00:15:19] Speaker 04:
That's number one.

[00:15:20] Speaker 04:
Number two, these issues were never really brought up.

[00:15:23] Speaker 04:
The language that we're talking about now, there's such other person to engage in such conduct.

[00:15:28] Speaker 04:
None of that was ever addressed.

[00:15:30] Speaker 04:
I mean, the defendant's real claim, really his only claim, was that

[00:15:34] Speaker 04:
You shouldn't believe the informant in this case because he has a prior record.

[00:15:37] Speaker 04:
I mean, that's really all this court addressed, which isn't a very good claim.

[00:15:40] Speaker 04:
But that was his argument.

[00:15:42] Speaker 04:
None of these issues were addressed.

[00:15:44] Speaker 04:
Also, Stewart was decided before this court made clear that the categorical approach applies to 373.

[00:15:55] Speaker 04:
All this being said is even if, I go back to there was no aiding and abetting instruction given and that's the best case scenario for them is an aiding and abetting theory that he asked these people to aiding and abet in the plot and there was never an aiding and abetting instruction and that would be, you could avoid all this statutory language or statutory interpretation just on that alone.

[00:16:18] Speaker 03:
I see him.

[00:16:19] Speaker 03:
Yeah, we'll give you a couple minutes for rebuttal.

[00:16:20] Speaker 03:
Thank you.

[00:16:26] Speaker 01:
May it please the court, Daniel Zip, on behalf of the United States.

[00:16:29] Speaker 01:
Just to be clear, our primary sufficiency argument is not based on aiding and abetting.

[00:16:33] Speaker 01:
It's based on the plain statutory language here, which the courts have interpreted as very broad.

[00:16:39] Speaker 01:
As Your Honor noted, it includes the term, otherwise endeavors to persuade.

[00:16:44] Speaker 01:
So the jury could have found, based on the evidence here, that Mr. Walthall

[00:16:49] Speaker 01:
intended that another person, fictitious or otherwise, commit these crimes, and that he otherwise endeavored to persuade that person through the use of Rodriguez and through the use of his fictitious brother-in-law.

[00:17:01] Speaker 01:
At the end of the day, that's the most straightforward.

[00:17:03] Speaker 03:
Do we have cases that actually adopt that interpretation?

[00:17:08] Speaker 03:
I mean, Stuart and White, they don't really walk through the plain language very carefully.

[00:17:16] Speaker 01:
I'm not aware of any cases that talk about that specific endeavor to persuade language.

[00:17:21] Speaker 01:
I mean, there are other circuits that have described it in Buckaloo, the First Circuit, citing the Senate report, so that it's designed to cover any situation where a person seriously seeks to persuade another person to engage in criminal conduct.

[00:17:36] Speaker 01:
which is similar, and of course, as Your Honors noted, in White, the Seventh Circuit held that it was sufficient even posting juror information on an extremist website with no knowledge of who the actual solicitee would end up being, that ultimately the crime itself is the act of solicitation, and under the broad endeavors to persuade language, we believe that the evidence here was sufficient.

[00:18:03] Speaker 02:
Do you think there has to be any person involved other than the defendant?

[00:18:07] Speaker 02:
I mean, suppose the defendant is engaging with one of these social media accounts that's actually a bot, right?

[00:18:16] Speaker 02:
And he's chatting with the bot, and he asks, will you please murder somebody, right?

[00:18:24] Speaker 02:
And so there's no, like, he's not talking to a person.

[00:18:28] Speaker 02:
talking about a person and he thinks he is, but there's no person.

[00:18:31] Speaker 02:
Do you think that would violate the statute?

[00:18:34] Speaker 01:
Under the statutory language, yes, that would seem to be comparable to what the Seventh Circuit addressed in White.

[00:18:40] Speaker 01:
The idea is the danger of the person endeavoring to have someone else commit a murder with the intent that that occurs, whether that's factually impossible, which is often in the case, is immaterial.

[00:18:53] Speaker 00:
So I'm interested in this question also because White talks about this being an Inquit crime, right?

[00:18:58] Speaker 00:
So it's what you're saying.

[00:19:00] Speaker 00:
All you have to do is put it out there.

[00:19:03] Speaker 00:
And that does seem very broad, but where would we, where would the line drawing occur if we were to say that something more than simply putting out into the universe, even if it's completely implausible, not directing any actual conduct in any way, you know, is there anything that we can look to to have some narrower parameters or we can draw some lines around what seems to me to be potentially too broad?

[00:19:33] Speaker 00:
of an interpretation, the one that you're providing us today.

[00:19:38] Speaker 01:
Beyond the language of the statute, which says endeavors to persuade, I suppose there are factual situations where what someone is doing would not even rise to that level of endeavor.

[00:19:49] Speaker 00:
What is that?

[00:19:53] Speaker 01:
It's hard to come up with an example.

[00:19:56] Speaker 01:
Perhaps posting something that's completely off the wall on a website that doesn't have an extremist background.

[00:20:05] Speaker 01:
It's hard for me to come up with facts that wouldn't reach the statute here.

[00:20:10] Speaker 01:
But I think, if we could go back to the facts of this case, clearly asking Rodriguez to have his brother-in-law hire someone and to have that guy

[00:20:21] Speaker 01:
specifically commit these horrific acts against the judge, that is close enough to meet the statutory language, even if there's some conceivable outside evidence that wouldn't meet the standard.

[00:20:33] Speaker 02:
What's the significance of the under circumstances strongly corroborative of that intent clause?

[00:20:40] Speaker 02:
Do you think that, I suppose the more implausible the whole scenario is,

[00:20:47] Speaker 02:
the less likely it is that you'd be able to prove beyond a reasonable doubt that it really was strongly corroborative of a genuine intent.

[00:20:55] Speaker 02:
Is that right?

[00:20:56] Speaker 01:
I think that's right, Your Honor, and this Court has outlined certain factors that would play into that.

[00:21:00] Speaker 01:
How often it was repeated, whether there was specific information given that would allow the

[00:21:06] Speaker 01:
potential killer to locate the person, whether how often it was repeated, whether a payment was offered.

[00:21:12] Speaker 01:
All of those are factors that sort of in an outside case that didn't meet the standard might both show that the defendant did not have the intent and that the actual endeavor to persuade didn't reach the level required by the statute.

[00:21:27] Speaker 00:
So you think that that sort of really comes into the prosecutorial discretion piece, whether these things are charged in the first instance as solicitation?

[00:21:35] Speaker 01:
I think that's certainly the first step, and then ultimately in an extreme case that if the prosecutor decided that it was worth going to, then the jury could decide whether the evidence was sufficient to show both that there was a legitimate endeavor to persuade and that the defendant had the intent to actually make it come to fruition.

[00:21:54] Speaker 01:
So I think prosecution, prosecutorial discretion, and ultimately the jury weighing the facts would be the sort of backstop.

[00:22:01] Speaker 03:
There's not really a legal constraint.

[00:22:03] Speaker 01:
Right, I mean, it's the language of the statute says endeavors to persuade.

[00:22:06] Speaker 01:
So I don't know that there's a legal cutoff outside of the evidence of any given case.

[00:22:12] Speaker 03:
But it does say otherwise endeavors to persuade such other person.

[00:22:17] Speaker 03:
Doesn't such other person mean that there has to, he has to have some other person in mind?

[00:22:24] Speaker 03:
I guess not.

[00:22:24] Speaker 03:
I guess White does reject that argument, right?

[00:22:26] Speaker 03:
Because White says you don't have to know

[00:22:29] Speaker 03:
You don't have to know who.

[00:22:30] Speaker 03:
If you send this out to 100 people and you just assume one of them is going to do it, such other person is contained within that.

[00:22:35] Speaker 03:
But at least there was a solicitation to, in theory, each of those 100 people.

[00:22:41] Speaker 03:
Here, he never solicited such other person.

[00:22:45] Speaker 03:
I guess he just otherwise endeavored to persuade such other person.

[00:22:49] Speaker 03:
That's correct.

[00:22:49] Speaker 03:
And such other person is not defined.

[00:22:52] Speaker 01:
Right.

[00:22:52] Speaker 01:
And it doesn't have to be a real person, as the court held in Stewart.

[00:22:55] Speaker 01:
Even a fictitious brother-in-law in that case was sufficient.

[00:22:59] Speaker 03:
But in Stuart you did have, it is true that in Stuart you did have a direct solicitation.

[00:23:05] Speaker 01:
Initially, right.

[00:23:08] Speaker 01:
So he initially went to whoever it was in prison and asked him to do it.

[00:23:12] Speaker 01:
But when the court addresses it at the end of the opinion, it lists the fictitious brother-in-law repeatedly as the person who was going to commit the murder.

[00:23:21] Speaker 03:
So in your opinion, there was no error in the jury instruction at all.

[00:23:26] Speaker 03:
We're reviewing it for plain error.

[00:23:27] Speaker 03:
Your position is there was no error because the district court, when it said any person, that is totally consistent with your interpretation of the statute because of the otherwise endeavors to persuade such other person.

[00:23:41] Speaker 03:
That can be read as any—because the jury instruction said, or otherwise endeavor to persuade another person,

[00:23:47] Speaker 03:
it doesn't have to be an identifiable person not even whether they're imaginary or not it's not like you have to say okay john go get

[00:23:57] Speaker 03:
James to commit the murder.

[00:23:58] Speaker 03:
As long as you say, John, go get someone to commit a murder, that's enough in all cases.

[00:24:03] Speaker 01:
I think that's right.

[00:24:04] Speaker 01:
And also, I mean, maybe it would have been better to say such other person in this instruction.

[00:24:09] Speaker 01:
It would have more closely mirrored the statute.

[00:24:11] Speaker 01:
But I think if you look at the way that it was phrased, it says, endeavor to persuade another person to carry out a federal felony.

[00:24:18] Speaker 01:
So even the instructions given, the actual endeavor had to be for the person carrying it out, and then the intent

[00:24:27] Speaker 01:
that that person engaged in the crime of violence.

[00:24:30] Speaker 01:
So I don't think there's any way to read even the instructions that are given to suggest that the jury could have reached the conclusion that there was an intent for one person to commit the offense and a solicitation of a totally different person without the intent.

[00:24:45] Speaker 01:
But they all had to be on the same person that was actually committing the offense.

[00:24:50] Speaker 01:
What about the aiding and abetting?

[00:24:51] Speaker 03:
I mean this does

[00:24:54] Speaker 03:
This does seem like an aiding and abetting crime.

[00:24:56] Speaker 03:
I mean, he didn't actually ever reach out to anybody to say, you commit the murder.

[00:25:02] Speaker 03:
He wanted somebody else to do it.

[00:25:04] Speaker 03:
I guess your argument is aiding and abetting is basically baked into the statute as is.

[00:25:09] Speaker 01:
I think our argument is we don't even need to go to aiding and abetting because the language of the statute is so broad and all we're talking about is whether he endeavored to persuade someone at the sort of end of the chain, whether it's the Colombians or John's guy that he hires, whether that constitutes aiding and abetting is sort of beside the point.

[00:25:26] Speaker 01:
The only reason we even included that is if

[00:25:29] Speaker 01:
As the defense argued, there was a specific person-to-person solicitation required in the statute.

[00:25:36] Speaker 01:
Then, even then, what this defendant did, personally soliciting the brother-in-law to oversee the killing, would potentially meet the statutory language under an aiding and abetting theory.

[00:25:49] Speaker 01:
And that's based on the sort of unusual language in the statute that says that whoever intends that another person engage in conduct constituting a felony such that overseeing a murder would constitute, would be conduct constituting a felony under an aiding abetting theory.

[00:26:08] Speaker 03:
But that goes to the, that's almost a different theory than we're talking about because then you're saying that John and Rodriguez themselves committed

[00:26:18] Speaker 03:
or in soliciting them, he committed it.

[00:26:21] Speaker 03:
But I thought your theory was the murder.

[00:26:25] Speaker 03:
I mean, we can't rely on that part of the theory, can we?

[00:26:29] Speaker 01:
All I'm explaining is that that's why we were even talking about it in our brief, was that sort of the tail end of our argument, which was primarily based on endeavor to persuade.

[00:26:36] Speaker 01:
We said if you look at this barefoot decision from the Fourth Circuit, they seem to adopt that theory that even if we have to show a solicitation person to person with Rodriguez and undercover, that that could conceivably still meet the statutory language under an aiding and abetting theory.

[00:26:53] Speaker 01:
But we don't even need to get there, given the broad language of the statute.

[00:26:58] Speaker 02:
Can you address a different aspect of the instructions, which is that the definition of, right, so the 373 refers to felony that has, that it's a crime of violence, and the jury was instructed that felony included killing or attempting to kill an officer or employee of the United States.

[00:27:21] Speaker 02:
What was the attempt part?

[00:27:23] Speaker 02:
What was it proper to include that in the instructions?

[00:27:25] Speaker 02:
I mean, can you solicit attempted murder?

[00:27:29] Speaker 01:
So if you look closely at how the actual instructions were given, what the court said at the outset was, in this case, the United States alleges that the federal felony crimes of violence solicited were one, murder of a federal employee, two, assault of a federal employee with a dangerous weapon.

[00:27:48] Speaker 01:
the court then provides the elements of each of those two and then later in the instructions it includes that language that says you are instructed as a matter of law that killing or attempting to kill an officer is a crime of violence.

[00:28:00] Speaker 01:
It's almost at the end he sort of lists here are crimes that are crimes of violence but there's nothing from that that would suggest that the jury would have

[00:28:09] Speaker 01:
somehow felt that it was able to convict under an attempt theory.

[00:28:15] Speaker 02:
I think you may have a very strong argument there, but I'm just just in the abstract.

[00:28:19] Speaker 02:
I mean, do you agree that it would have been better to leave out attempt?

[00:28:24] Speaker 01:
Yes.

[00:28:25] Speaker 02:
Yeah, okay.

[00:28:25] Speaker 01:
But again, there was no objection made, and these were jointly proposed instructions.

[00:28:30] Speaker 01:
At the very least, if it could have been worded better, it's not a plain error, and it certainly wouldn't have affected the outcome of proceedings given the earlier instructions that I just described.

[00:28:44] Speaker 01:
Happy to address any other issues.

[00:28:46] Speaker 01:
If not, we would submit on the brief.

[00:28:48] Speaker 03:
Okay, thank you.

[00:28:49] Speaker 03:
We'll give you two minutes for rebuttal.

[00:28:53] Speaker 04:
I'm not sure I'm going to be able to get it all in in two minutes, but I'm going to try.

[00:28:56] Speaker 03:
I don't figure that away.

[00:28:57] Speaker 04:
OK, first of all, on Stewart, Stewart was decided before Flores Figueroa by the Supreme Court.

[00:29:03] Speaker 04:
Flores Figueroa says another person means an actual person.

[00:29:07] Speaker 04:
And so that Stewart didn't have Flores Figueroa when it was decided.

[00:29:12] Speaker 04:
So Stewart's not on point for a lot of reasons.

[00:29:14] Speaker 04:
I think the government is just focusing on this phrase, endeavors to persuade, and just ignoring the rest of the language in the statute.

[00:29:24] Speaker 04:
It says endeavors to persuade such other person to engage in such conduct.

[00:29:32] Speaker 04:
And somehow they're just saying, well, that somehow means that if you say anything to anybody, then it's good enough.

[00:29:38] Speaker 04:
A solicitation to solicit,

[00:29:43] Speaker 04:
is not a crime of violence.

[00:29:45] Speaker 00:
So let me ask you the same question I asked your friend on the other side, which is, how do we draw the line?

[00:29:50] Speaker 00:
Because I would give you that Stuart is different.

[00:29:54] Speaker 00:
Stuart, at least there's a request to this fictional brother-in-law.

[00:29:58] Speaker 00:
And here, I think there's not really a dispute that there wasn't a request to any particular person.

[00:30:06] Speaker 00:
because there was this request for them to arrange it instead.

[00:30:09] Speaker 00:
But how do we draw the line, which is why I find white so helpful, because in white, I think the court just comes out and says, this is really, really broad, it's an Inquick crime, as soon as you put it out there, that's enough.

[00:30:23] Speaker 04:
Well, I think the line is drawn with aiding and abetting.

[00:30:28] Speaker 04:
And they've just walked away from aiding and abetting.

[00:30:30] Speaker 04:
They've just considered it.

[00:30:31] Speaker 04:
It has to be a crime of violence under the categorical approach.

[00:30:34] Speaker 04:
Somebody has to have been solicited to actively participate in the crime of violence.

[00:30:40] Speaker 04:
That's what the plain language of the statute says.

[00:30:43] Speaker 04:
That's what this court held in Lenahan.

[00:30:45] Speaker 04:
Soliciting a murder for hire, soliciting a solicitation to murder, Your Honor's question about didn't he, if you asked so-and-so to hire somebody to murder, that is not a crime of violence under the categorical approach.

[00:30:57] Speaker 04:
So it's just not endeavor to persuade.

[00:31:00] Speaker 04:
Like I asked somebody to pay somebody to do something.

[00:31:03] Speaker 03:
But why isn't it just endeavor to persuade?

[00:31:05] Speaker 00:
Well, how do we get around that language?

[00:31:07] Speaker 04:
No, it's not, because you have to read it, endeavors to persuade such other person to engage in such conduct.

[00:31:13] Speaker 03:
If I go to person A and I say, hey,

[00:31:16] Speaker 03:
I want to get this bill passed in Congress.

[00:31:20] Speaker 03:
But I know if I go talk to them, they're not going to listen to me.

[00:31:23] Speaker 03:
I want you to go persuade Congress to pass the bill.

[00:31:26] Speaker 03:
I'm getting aid to endeavor to persuade Congress to do something that I know I couldn't do.

[00:31:31] Speaker 03:
I mean, why doesn't that fit the statutory definition?

[00:31:34] Speaker 03:
I mean, that is endeavoring to persuade.

[00:31:38] Speaker 03:
That's endeavoring to persuade the other person to do something.

[00:31:40] Speaker 03:
I'm taking this out of a criminal context.

[00:31:42] Speaker 03:
I'm just saying in our common language, endeavoring to persuade somebody could happen a whole lot of different ways.

[00:31:51] Speaker 04:
Well, but first you have to have the intent that another person, who are you intending to do this?

[00:31:58] Speaker 04:
I'm intending, and then you have to persuade such other person to engage in such conduct.

[00:32:05] Speaker 04:
You have to persuade the person.

[00:32:07] Speaker 00:
So I hear what you're saying.

[00:32:08] Speaker 00:
I understand what you're arguing, which is to say it's not just endeavors to persuade, but it's such other person to engage in such conduct.

[00:32:15] Speaker 00:
So now I think this is where Stuart becomes relevant.

[00:32:19] Speaker 04:
Stewart is talking about a fictional person is that is that a such other person and and and that's why I come back Stewart was decided before Flores Figueroa Flores Figueroa says another person means an actual person and At least in Stewart there was The defendant had been told there is this other person.

[00:32:38] Speaker 04:
There is this other actual person here is

[00:32:41] Speaker 04:
There is no actual person.

[00:32:42] Speaker 04:
It's a figment of his own imagination.

[00:32:44] Speaker 04:
No actual person has been asked to engage in such conduct.

[00:32:49] Speaker 04:
No person has been asked to ask an actual person to engage in such conduct.

[00:32:54] Speaker 04:
And even that, soliciting a solicitation, is not a crime violence.

[00:32:57] Speaker 04:
We are so far removed from this offense.

[00:33:00] Speaker 04:
And the government has now conceded they're not relying on aiding and abetting liability.

[00:33:03] Speaker 04:
I mean, they just did not prove the case.

[00:33:06] Speaker 04:
One final point, they were not jointly proposed instructions.

[00:33:09] Speaker 04:
The government proposed the instructions.

[00:33:11] Speaker 04:
There were no objections.

[00:33:12] Speaker 04:
The defendant's attorney did not- We're still reviewing for plain error.

[00:33:15] Speaker 03:
Plain error.

[00:33:16] Speaker 03:
Thank you.

[00:33:16] Speaker 03:
But not waiver.

[00:33:17] Speaker 03:
Got it.

[00:33:17] Speaker 03:
Thank you.

[00:33:18] Speaker 03:
Thank you to both counsel for your arguments in the case.

[00:33:21] Speaker 03:
The case is now submitted.