[00:00:00] Speaker 01: Good morning. [00:00:01] Speaker 01: Jeffrey Jones for the appellant Hong Ai Lei. [00:00:04] Speaker 01: I would like to reserve two minutes for rebuttal if I could please. [00:00:09] Speaker 01: The sentencing guideline here for conspiracies 2X1.1 under subsection B2 requires a three level downward adjustment where the conspirators completed all of the acts they believe necessary for the successful completion of the substantive offense. [00:00:24] Speaker 01: And the substantive offense here under this guideline is the substantive offense that was charged in the indictment and proven to the jury, not ancillary offenses that might have been committed at different points during the incomplete conspiracy. [00:00:37] Speaker 01: The substantive offense here was a robbery, a Hobbs Act robbery, of the Diamond and Flower Industries warehouse in Sacramento in the theft of computer chips from that interstate facility. [00:00:48] Speaker 01: What should decide this case is that the conspirators voluntarily abandoned their plan [00:00:54] Speaker 01: to rob that warehouse before they even got near it. [00:00:56] Speaker 01: They didn't try to break into it. [00:00:57] Speaker 01: They never approached it. [00:00:59] Speaker 01: Their first step of their plan was to invade a private residence of the DFI owner and force him to give them the alarm codes. [00:01:06] Speaker 01: Through their own inept plan, they invaded the wrong house and targeted the wrong person who didn't have the computer code, the codes for the alarm. [00:01:14] Speaker 01: And at that point, they abandoned their plan. [00:01:18] Speaker 01: There was no intervention by a third party. [00:01:20] Speaker 01: The authorities didn't find out about this until more than a year later when a cooperating witness told them about it. [00:01:26] Speaker 01: Here, the conspirators simply abandoned their plan. [00:01:29] Speaker 01: And what's critical for this guideline is there was never a point when the conspirators believed they had completed all of the acts necessary to complete the Hobbs Act robbery. [00:01:40] Speaker 04: But didn't some of the conspirators get close on some of the acts? [00:01:45] Speaker 04: I mean, the provision that we're looking at [00:01:48] Speaker 04: says that the reduction applies unless the defendant or a co-conspirator completed all the acts the conspirator believed necessary on their part. [00:01:59] Speaker 04: So why wouldn't we say that the team that was at the house had completed their part, they were stopped by the fact that the gentleman they were attacking didn't have the codes? [00:02:10] Speaker 01: Well, I don't disagree with that. [00:02:12] Speaker 01: I'd say that if you look at a total Hobbs Act robbery, they completed the force element, [00:02:18] Speaker 01: And but they didn't take any property. [00:02:21] Speaker 01: And they probably competed a robbery and a number of other offenses, a burglary, an assault. [00:02:27] Speaker 01: But the POBS Act robbery required the taking of property that affects interstate commerce. [00:02:33] Speaker 01: And that property was sitting safely at the warehouse. [00:02:36] Speaker 01: So I think it would be impossible to say that any of the conspirators believed they had committed all the acts necessary when they still hadn't gotten the alarm codes, and all of them knew they had no way to enter that warehouse. [00:02:47] Speaker 03: And that's why they- But also, isn't, as I read this, [00:02:51] Speaker 03: It's not whether the particular defendant or co-conspirator thought that completed all the acts that the conspirators believed necessary, not that that defendant or co-conspirator believed necessary on their own part. [00:03:06] Speaker 03: So presumably it has to be the conspiracy as a whole that believed these acts necessary on their part, meaning not on a third party's part. [00:03:19] Speaker 03: So I don't see how you can go conspirator by conspirator on this, because that isn't what the rule says. [00:03:25] Speaker 01: I agree, Your Honor. [00:03:26] Speaker 01: I think it's all conspirators. [00:03:29] Speaker 01: But I don't think any conspirator ever believed. [00:03:35] Speaker 01: When I say even one conspirator, I'm thinking all the conspirators can't believe something unless at least one of them does. [00:03:42] Speaker 01: And I don't think any one of them believed that they had gotten the alarm codes. [00:03:47] Speaker 01: They all knew they hadn't. [00:03:48] Speaker 01: And they knew without the alarm codes, they could never get in that warehouse. [00:03:52] Speaker 01: And that's why they abandoned their plan without even approaching the warehouse. [00:03:55] Speaker 03: The district court, as I recall, seemed to think that because there was a robbery in the home of the person they were attacking, that that was sufficient. [00:04:11] Speaker 03: But that isn't the robbery that was being charged. [00:04:14] Speaker 01: Indeed. [00:04:16] Speaker 01: That was an ancillary offense. [00:04:19] Speaker 01: I think if you looked at the robbery of the house, there was no interstate property at issue there. [00:04:23] Speaker 01: The application of force would have been the same for both robberies. [00:04:28] Speaker 01: If you were looking at the Hobbs Act robbery, I think it's fair that the USA has a fair point that the force element was satisfied when they were in the house trying to force the guy to give them the alarm codes. [00:04:40] Speaker 04: If they had gotten the codes, how much more difficult would this have been? [00:04:44] Speaker 04: They would then have had the codes to a business and they would have been able to punch it in and just go in. [00:04:48] Speaker 01: If they got the right codes, they'd have to take their van to the business. [00:04:53] Speaker 04: But what's the team ready they were right there by the way they were at a hotel. [00:04:56] Speaker 01: I'd say that was I'd say getting that property in the van and escaping with the property was a key step in the robbery that they knew they never completed what what more the group that was at the house and torture the guy what more. [00:05:12] Speaker 02: would they have needed to do if they had gotten the codes? [00:05:14] Speaker 01: Well, they would have needed to select the correct victim in the first place. [00:05:17] Speaker 01: And then if they'd gotten the codes, that group would have simply relayed the codes to the team that was waiting in the hotel. [00:05:24] Speaker 02: Well, it says, it says, it says, the co-conspirator completed all the acts that they believed necessary on their part. [00:05:31] Speaker 02: So the fact that they, that their beliefs turned out not to be incorrect, you know, that they're inept. [00:05:39] Speaker 02: I'm just trying to figure out if, [00:05:43] Speaker 02: you know, if you had two teams doing something and the one team does everything, I'm trying, first of all, I'm trying to figure out like factually, what more could that team have done if they had, if they'd actually had the right person? [00:05:56] Speaker 02: I think they would have, I guess the one thing they didn't do is make a phone call and deliver the codes, right? [00:06:01] Speaker 02: That's the last step that would have. [00:06:03] Speaker 01: Right, the leader, the leader of the home invasion team [00:06:07] Speaker 01: He went to the house and realized this is the wrong guy. [00:06:10] Speaker 01: And then he traveled to the hotel and told the boss, Matty Chan, boss, we screwed up. [00:06:15] Speaker 01: We can't do the warehouse. [00:06:17] Speaker 01: And then the boss called off the plan. [00:06:18] Speaker 03: But does the rule, does the guidelines say what Judge Van Dyke just read? [00:06:25] Speaker 03: It says, again, the defendant or a co-conspirator completed all the acts, not that they believed necessary, but that the conspirators believed necessary on their part, which I understand to mean the conspiracy as a whole, not these individual people. [00:06:44] Speaker 01: I'd say that an unnecessary act in the conspiracy. [00:06:47] Speaker 03: I mean, that's plural, and the part at the beginning is singular, the defendant or a co-conspirator, so obviously they're not talking about those people, they're talking about the larger group. [00:06:57] Speaker 01: Yeah, but the substantive offensives, clearly the Hobbs Act robbery that included the warehouse, taking the property from the warehouse. [00:07:04] Speaker 01: even if the conspirators in the house believed they had done everything necessary for their part, they still had no reason to believe that there had been a successful taking of the computer chips from that warehouse. [00:07:16] Speaker 01: They wouldn't have believed that. [00:07:17] Speaker 01: They might have believed that if I'm a conspirator in charge of steps one and two, I still don't believe that substantive offense has been completed until I have a reason to believe that the other conspirators have carried out steps four, five, and six. [00:07:33] Speaker 03: way into this. [00:07:35] Speaker 03: Another question is, I think the government's version, and maybe the district [00:07:47] Speaker 03: What happened here is kind of like a third party interference, aside from how far along the events were. [00:07:57] Speaker 03: But was it in the sense that the reason, it isn't that this guy refused to give him the codes, it's that they completely screwed up, they had the wrong person, and this person just didn't have the codes. [00:08:09] Speaker 03: It was their mistake, their idiocy, basically. [00:08:13] Speaker 01: It was a very incompetent plan, and they knew it. [00:08:17] Speaker 01: They knew they had screwed up and that's why they called it off before they even tried to go to the warehouse. [00:08:23] Speaker 03: It wasn't just if they went there, the guy, they went to the right place, but the guy was just very firm and he was willing to get beat up and tortured and everything and it wouldn't give him the call. [00:08:32] Speaker 03: That's not what happened. [00:08:34] Speaker 01: Indeed. [00:08:35] Speaker 01: That could be an intervention by the victim situation if he refused to give them, but it was their mistake. [00:08:41] Speaker 01: They picked the janitor instead of the owner. [00:08:44] Speaker 04: Does this matter? [00:08:44] Speaker 04: Does this distinction matter? [00:08:46] Speaker 01: I think so because there's two prongs in this guideline. [00:08:48] Speaker 01: in subsection B2. [00:08:51] Speaker 01: The first prong is, the second prong is where there's an intervention by the police or by a victim. [00:08:56] Speaker 01: And many of the cases deal with that because this case is kind of unusual that the substantive events was never completed and the authorities wouldn't have found out about it except for the cooperating witness. [00:09:07] Speaker 01: Usually in most cases you see the police intervene or the victim intervened. [00:09:12] Speaker 01: And then in that situation it's the second prong in subsection B2. [00:09:19] Speaker 04: Are you saying this was not an event beyond their control because it was in their control to have made this mistake? [00:09:25] Speaker 01: Their plan was in their control. [00:09:27] Speaker 01: And their plan was the only flaw in this case. [00:09:29] Speaker 04: Yeah, well why wouldn't we say what was beyond their control was the fact that the person that they had didn't know the codes? [00:09:34] Speaker 01: Because I think that was under their control because their plan involved selecting the right person and getting the codes from them. [00:09:42] Speaker 01: And that's where it fell short. [00:09:45] Speaker 01: It was entirely their plan. [00:09:47] Speaker 01: It wasn't an event external to the conspiracy. [00:09:49] Speaker 01: It was their own flawed plan. [00:09:51] Speaker 02: Why wouldn't you say the same thing? [00:09:53] Speaker 02: I mean, I'm having trouble following why this wouldn't always be the case. [00:09:56] Speaker 02: You'd say, well, you incompetently picked a co-conspirator who actually is a police informant. [00:10:01] Speaker 02: So that's why the police showed up as you were about ready to break into the building, right? [00:10:04] Speaker 01: Yeah, I think in this case, though, [00:10:11] Speaker 01: where there's no intervention by the police or by the victim. [00:10:17] Speaker 01: The question then under that first prong is, did they complete all the facts they believe necessary for the completion of the substantive offense? [00:10:25] Speaker 02: And- So your position is just that- [00:10:28] Speaker 02: Unless it's the police or something. [00:10:30] Speaker 02: I mean, here, something intervened, right? [00:10:32] Speaker 02: I mean, you could definitely characterize it as something intervening is the fact that this person you're torturing doesn't know the codes. [00:10:42] Speaker 02: So it was definitely something out of their control, in a sense. [00:10:47] Speaker 02: But you're just saying that's different than the police showing up, and so this could not be a prompt to? [00:10:53] Speaker 01: I think it is different, because it's ultimately the conspirator's mistake that caused it. [00:10:58] Speaker 02: But you can always characterize an evil scheme gone wrong as just not planned well enough. [00:11:07] Speaker 01: I think it's certainly fact-specific. [00:11:11] Speaker 01: A case, I think the closest case I saw to this question, it's cited in the opening brief. [00:11:16] Speaker 01: It's United States versus Lamb, a Seventh Circuit case from 2000. [00:11:21] Speaker 01: There was no police intervention, but an inept burglar, he went to a bank, he got to the vault, but he didn't bring the tools to break into the vault. [00:11:29] Speaker 01: Inept clown, that's an incomplete conspiracy. [00:11:32] Speaker 01: Or the substantive events, he couldn't complete the substantive offense due to his own negligence. [00:11:36] Speaker 01: I think that's precisely what happened here. [00:11:39] Speaker 03: What happened specifically, as I understand it, is that they meant to be [00:11:46] Speaker 03: about following and kidnapping the owner, and they just were completely, but their plan about however they were gonna figure out who the owner was made no sense at all, and it wasn't the owner. [00:11:56] Speaker 01: They thought he was the owner. [00:11:58] Speaker 04: Can I ask you, going back to the first, I know we've taken you over your time, but we'll make sure you have some time for rebuttal. [00:12:05] Speaker 04: On the first part of the provision that talks about the, it says, unless a defendant or a co-conspirator completed all the acts the conspirators believe necessary on their part, [00:12:16] Speaker 04: How does one read this? [00:12:17] Speaker 04: Do we read it as the conspiracy as a whole, or could you look at it in terms of essentially the links and the chain of one defendant or one co-conspirator? [00:12:29] Speaker 04: Because that's part of the difficulty with the model of this case, where there were kind of two things that had to happen. [00:12:34] Speaker 04: First we do the codes, and if we get the codes, then we go to the building. [00:12:38] Speaker 01: I think it's the overall conspiracy in the sense that this is a, taking a step back, this is a downward adjustment [00:12:46] Speaker 01: where for a conspiracy where you didn't complete the substantive offense and they're looking at what the conspirators thought it but hypothetically if you had a huge drug conspiracy and There's dozens of people and each person has a tiny tiny tiny [00:13:01] Speaker 01: a tiny role. [00:13:03] Speaker 01: Well, the first person who does the first thing, transports drugs or whatever, they might think, oh, I've done everything I'm supposed to do, so we've completed it. [00:13:11] Speaker 01: But they haven't even gotten close to completing the substantive offense. [00:13:15] Speaker 01: I think you'd look at this conspiracy of a whole and did the conspirators have any reason to think that the conspirators as a whole had completed all of the necessary acts to complete [00:13:29] Speaker 01: In this case, the Hobbs Act robbery. [00:13:31] Speaker 02: So what work is the phrase on their part doing under that view? [00:13:36] Speaker 02: I would say the defendant or co-conspirator completed all the acts that conspirators believe necessary for the successful completion of the substantive offense. [00:13:44] Speaker 02: It seems under that reading, what work is the on their part doing? [00:13:48] Speaker 01: Well, I think if the belief of one conspirator can control that could be on his or her part, [00:13:56] Speaker 01: I think this is because this is a downward adjustment when... No, no, no. [00:14:02] Speaker 02: It could be that everybody believes... We have a two-part thing, and I got to do A and somebody else has to do B. Just two conspirators. [00:14:10] Speaker 02: And we both believe that I have to do A, and I do A. I complete everything that we all believe that I had to do, which is A. But B doesn't get done because the other person stops at Starbucks for coffee or something like that. [00:14:25] Speaker 02: That, under that understanding, everybody, all the conspirators would believe that it was necessary on my part to do A, right? [00:14:34] Speaker 02: And so that I completed all the acts and then this would fit. [00:14:37] Speaker 01: But I think in this case, there were a number of conspirators that hadn't completed their, hadn't completed the acts that, on their part. [00:14:49] Speaker 03: On their part. [00:14:51] Speaker 03: I understand it means on the part of any of the conspirators as opposed to third parties. [00:14:56] Speaker 03: So for example, in this instance, their scheme was dependent on getting the code. [00:15:04] Speaker 03: And so if in the hypothetical, I mean, we have another problem, which was that getting the code was pretty far away from actually committing the robbery. [00:15:15] Speaker 03: But leaving that out of the equation for now, if the person who actually had the code had simply refused to do it, [00:15:23] Speaker 03: to give it, and if the object was to get the code and nothing else, then the conspirators would have completed all the acts necessary on their part, but they didn't get the code because the guy wouldn't give them the code. [00:15:37] Speaker 03: So I think that's what on their part means. [00:15:40] Speaker 03: They may be dependent on somebody else doing something, some third party who's not in the conspiracy, but that doesn't count. [00:15:49] Speaker 01: I agree with that. [00:15:53] Speaker 01: Well, in that case, you'd have an intervention by a third party. [00:15:56] Speaker 01: I mean, if you took this case... [00:16:00] Speaker 04: under its facts. [00:16:01] Speaker 04: Isn't the operative, I mean it seems like maybe the belief is what's doing the work in this part of the clause. [00:16:05] Speaker 04: It's about believing something has happened and it turns out maybe it has not happened. [00:16:11] Speaker 01: Right. [00:16:12] Speaker 01: Here I think everybody, there was nobody who thought they'd gotten the correct alarm codes and nobody thought that the other conspirators had even approached the warehouse, much less broken into it and stolen anything. [00:16:24] Speaker 01: So everybody knew that collectively they hadn't committed [00:16:28] Speaker 01: all the necessary acts to complete the Hobbs Act robbery. [00:16:34] Speaker 04: Why don't we hear Mr. Jones from your opposing counsel and we'll see you for two minutes of rebuttal. [00:16:38] Speaker 04: Thank you. [00:16:38] Speaker 04: Thank you. [00:16:48] Speaker 00: Good morning, Your Honors. [00:16:49] Speaker 00: Jason Hitt on behalf of the United States. [00:16:52] Speaker 00: May it please the Court, the Court's questions, I think, [00:16:55] Speaker 00: hit the nail on the head. [00:16:56] Speaker 00: And one of the fact patterns that's unusual here is that it is not possible to break apart the two different teams. [00:17:03] Speaker 00: It was one unified plan. [00:17:05] Speaker 00: And what Martinez Martinez says in footnote five in terms of who do we evaluate [00:17:10] Speaker 00: It says that the court looks at all the acts necessary, but it's all of the conspirators and what they do in executing this one unified plan. [00:17:20] Speaker 00: You don't break it down piece by piece or say, well, what did Mr. Lay say because he wasn't in the house? [00:17:26] Speaker 00: And when this plan was underway, they didn't know in the moment they had the wrong target. [00:17:30] Speaker 00: They got hours into the prolonged torture and beating. [00:17:33] Speaker 00: when they realized, because they realized they had the wrong person. [00:17:37] Speaker 00: And what the guideline is interested in looking at, I think, based on the cases that we cite, is what the defendants believed was necessary. [00:17:45] Speaker 00: So they thought it was a necessary condition to harm Mr. Wen in order to access DFI. [00:17:51] Speaker 00: The guideline determines punishment based on conduct and how far they got. [00:17:55] Speaker 00: Many conspiracies never get off the ground. [00:17:57] Speaker 00: This one was well underway. [00:17:59] Speaker 03: But they certainly didn't complete all the acts necessary for the successful completion of the substantive offense because they never got anywhere near the robbery. [00:18:11] Speaker 00: But they didn't know that until roughly four hours into the torture. [00:18:16] Speaker 03: that they hadn't completed all the acts necessary for the successful completion of the substantive offense. [00:18:23] Speaker 03: They knew it at the beginning that that whole episode was just preliminary. [00:18:27] Speaker 00: It wasn't preliminary. [00:18:29] Speaker 00: It was necessary. [00:18:30] Speaker 00: It was not ancillary. [00:18:31] Speaker 00: It was the whole scheme. [00:18:32] Speaker 03: But they didn't complete all the acts. [00:18:33] Speaker 03: They couldn't have. [00:18:34] Speaker 03: It may have been necessary, but it wasn't all the acts. [00:18:37] Speaker 00: That's true. [00:18:37] Speaker 03: It was a preliminary act. [00:18:39] Speaker 00: Well, it was a necessary act, and it was the first phase of two steps. [00:18:44] Speaker 03: It wasn't all the acts. [00:18:45] Speaker 03: It was a sliver of the acts. [00:18:48] Speaker 03: What they thought they were trying to do was necessary for what they were going to do next, but it wasn't what they were going to do next. [00:18:55] Speaker 00: Well, in what the cases talk about, for example, in Dawson, the court talks about Judge Posner, where the crew is following the truck, and they're going to rob the marijuana, and they lost it in traffic. [00:19:08] Speaker 00: They couldn't complete the robbery. [00:19:10] Speaker 00: They had taken preliminary steps. [00:19:11] Speaker 00: They had prepared with duct tape. [00:19:13] Speaker 00: They'd followed the truck. [00:19:14] Speaker 00: They lost it in traffic. [00:19:15] Speaker 00: It was a factual impossibility once they lost it in traffic to complete all of the necessary steps. [00:19:20] Speaker 00: But it doesn't follow that the three-level discount is applied where the factual impossibility here that Mr. Wen was the wrong victim ends up being true. [00:19:29] Speaker 00: They don't know that. [00:19:30] Speaker 00: And when you're assessing the conduct for the conspiracy that occurred and was proven in this case, [00:19:34] Speaker 00: The three level discount really doesn't make much sense given the nature of conduct. [00:19:40] Speaker 04: There's sort of two parts to this provision, right? [00:19:44] Speaker 04: There's a second part that says that if the circumstances demonstrate that the conspirators were about to complete all such acts but for apprehension or interruption, do you contend that that part of the clause is met here? [00:19:57] Speaker 00: I believe both are met, Your Honor. [00:19:59] Speaker 04: So why is the second one met? [00:20:01] Speaker 00: Because the way the courts have interpreted that second clause is they focus on event beyond their control. [00:20:06] Speaker 00: And so in Dawson, Martinez, and Chapdelaine, all of those are event beyond defendant's control. [00:20:14] Speaker 00: So in Dawson, that's the loss of the truck in traffic. [00:20:17] Speaker 00: Martinez is a 10th Circuit case where the bank president and kidnapper couldn't open the safe combination. [00:20:24] Speaker 00: And then Chapdelaine is a 1st Circuit case where [00:20:27] Speaker 00: The robbers arrived to carry out a bank robbery, but they were thwarted only by the unexpected early departure of the Wells Fargo truck. [00:20:34] Speaker 04: I mean, the argument sort of suggested that maybe this was within their control because it was their own ineptitude that chose the wrong person. [00:20:41] Speaker 00: I don't think that can be accurate under the way the guideline is written. [00:20:46] Speaker 00: So event beyond their control, it would mean that they had to know in advance that they had the wrong person. [00:20:51] Speaker 00: And it would make no sense then to go. [00:20:52] Speaker 03: Why would they have to know in advance? [00:20:54] Speaker 00: Because the idea would be if the event is beyond their control and it's a bad plan, then he gets a discount. [00:21:01] Speaker 00: They don't know. [00:21:02] Speaker 03: Well, it was a bad plan because apparently they thought that they were going to figure out who the owner was by who left the factory last. [00:21:09] Speaker 03: And that's why they chose this guy. [00:21:11] Speaker 03: That was a pretty bad plan. [00:21:13] Speaker 00: Well, it turned out to be a terrible plan, but it was one that they had executed multiple times and had success in other robberies. [00:21:20] Speaker 03: But why? [00:21:22] Speaker 03: It was still the result of the bad plan and why the whole thing didn't work. [00:21:26] Speaker 00: But they don't know it's a bad plan at the time they executed. [00:21:27] Speaker 03: Not something beyond their control. [00:21:28] Speaker 03: It was because it was a bad plan. [00:21:31] Speaker 00: They don't know it's a bad plan at the time they execute it. [00:21:34] Speaker 00: This is second guessing and doing a de novo review. [00:21:37] Speaker 03: But it's an objective standard, a similar event beyond their control. [00:21:42] Speaker 03: What they knew or didn't know is not pertinent to that. [00:21:45] Speaker 00: Right. [00:21:46] Speaker 00: And the event beyond their control in this case is they picked the wrong victim. [00:21:49] Speaker 00: They don't know they picked the wrong victim. [00:21:50] Speaker 03: But it wasn't beyond their control. [00:21:52] Speaker 03: It was within their control. [00:21:55] Speaker 00: Well, what the event is, is they picked the wrong person. [00:21:59] Speaker 00: So what's beyond their control is they just screwed up. [00:22:01] Speaker 00: But it doesn't mean that that guideline then gives them a three-level discipline. [00:22:04] Speaker 04: So let's assume you're right about that. [00:22:06] Speaker 04: And then there's another part of this that you have to be about to complete all such acts. [00:22:10] Speaker 04: And I take it that is referring to the ultimate offense here, which would be robbing the business? [00:22:17] Speaker 00: Accessing DFI, yes. [00:22:18] Speaker 00: It would be burglarizing, technically. [00:22:20] Speaker 00: But yes, accessing DFI. [00:22:22] Speaker 00: The team ready to go all they needed was to make the call and say we have the keys or we have the code And they would access DFI presumably find an empty warehouse and steal the merchandise Okay I think the arguments made then that you know there were not necessarily about to complete this because even if they got the codes There were still other things they had to go and do how do you address that? [00:22:42] Speaker 00: I think that that's it's a fair argument, but it [00:22:45] Speaker 00: As far as they got in this unified plan, it was fairly substantial and it was enough to meet the guideline. [00:22:51] Speaker 03: But that's not what it says. [00:22:53] Speaker 03: It doesn't say substantial acts. [00:22:54] Speaker 03: It says all the acts. [00:22:57] Speaker 03: that they believed necessary on their part for the successful completion. [00:23:00] Speaker 03: And they thought if this had worked and they had gotten the code, then they'd have to call somebody else and that person would have to get in a car and they'd have to go to this other place and the code would have to work and they'd have to go in. [00:23:11] Speaker 03: And so there was, it's not substantial. [00:23:16] Speaker 03: That's not the standard. [00:23:18] Speaker 00: Well, under the way this scheme worked, they had completed the most important part, which was the violence. [00:23:25] Speaker 00: They were trying to extract the code. [00:23:27] Speaker 00: The only thing remaining was to send the transport team to access the building. [00:23:31] Speaker 03: I know you can say that way, but if you start talking about what it means to send a transport team, it means they have to be successful in contacting them. [00:23:40] Speaker 03: They have to be successful in starting the car. [00:23:42] Speaker 03: They have to be successful in finding the right place. [00:23:45] Speaker 03: They have to be successful in using the code. [00:23:47] Speaker 03: There are a bunch of steps that haven't happened, acts. [00:23:52] Speaker 03: Even if they had gotten the code, that had happened before they could have successful completion of the substantive offense. [00:24:01] Speaker 00: I disagree, Your Honor, and I think the district court got it right when it found, and this court is reviewing for clear error, that the factual impossibility did not negate the conspiracy's progression. [00:24:13] Speaker 04: How close was the hotel to the business? [00:24:16] Speaker 00: That's not in the record and having been trial counsel. [00:24:20] Speaker 00: I believe in the government's brief. [00:24:21] Speaker 00: I mentioned that it's close I don't have that specific fact. [00:24:25] Speaker 00: It wasn't produced at trial It was generally in the area from my memory and it was I know which hotel it is. [00:24:31] Speaker 00: It's off 80 It's the Granada Inn [00:24:33] Speaker 00: and DFI's not around anymore, but it was relatively close, and that was part of why they picked that hotel, was they could have the team ready with, I believe, a U-Haul van at the ready. [00:24:44] Speaker 03: And moreover, after they got the code, they could have just said, oh, forget it, we're not doing this. [00:24:48] Speaker 03: I mean, what is the point of this? [00:24:51] Speaker 03: I mean, it may be helpful to talk about what is the point of this provision. [00:24:56] Speaker 03: It is essentially [00:24:59] Speaker 03: Well, I don't know. [00:24:59] Speaker 03: What is your understanding what the point of it is? [00:25:01] Speaker 03: Why there's a three-point deduction? [00:25:04] Speaker 00: It's a good question, Your Honor, and I think the courts have looked at this very fact-specific as we are, and it's a fact-specific inquiry that defers to the [00:25:14] Speaker 00: the district court's findings, and here what my understanding, and I think the best sort of evaluation of what the purpose of the guideline is, Judge Posner and Dawson, and I think it's three main points. [00:25:27] Speaker 00: It's what the defendants believed was necessary to achieve success. [00:25:30] Speaker 03: No, no, that's not what I'm asking you. [00:25:32] Speaker 03: I'm asking you, why does this exist at all? [00:25:36] Speaker 03: Presumably because the guideline framers want to [00:25:46] Speaker 03: have a lesser guideline for an inchoate crime than if they had completed. [00:25:57] Speaker 03: And apparently, from the language here, and why do they want to do that? [00:26:02] Speaker 03: Because people may give up and never actually accomplish it, and that's better for the world, right? [00:26:09] Speaker 00: Presumably. [00:26:09] Speaker 00: Well, it's certainly not better for Mr. Wen in this case, but yes. [00:26:11] Speaker 00: Well, I understand that, but that was- What Judge Paz says is basically it's degrees of how far a conspiracy or an attempt get. [00:26:19] Speaker 00: And so if it's just mere preparation, it's conversations, how far down the road. [00:26:23] Speaker 00: In Luckman, it was a person who wanted to do a mass casualty event in New York and join ISIL. [00:26:29] Speaker 02: He had talked to some people, he had... I don't understand your reading of this, because there's two parts of this, right? [00:26:35] Speaker 02: Yes, Your Honor. [00:26:36] Speaker 02: And the first part says, completed all the acts, all. [00:26:40] Speaker 02: And the second part says, complete all such acts. [00:26:43] Speaker 02: And you're basically trying to read the statutes having completed most of the acts, [00:26:48] Speaker 02: The second part does have other language that makes it so it doesn't have, they don't have to have completed all such acts as long as something breaks it and as long as something out of their control, beyond their control, breaks it. [00:27:01] Speaker 02: But your argument is trying to turn all such acts into something less than all such acts. [00:27:09] Speaker 02: Like you're trying to say substantially completed or something like that. [00:27:12] Speaker 02: But this doesn't have a substantial completion. [00:27:14] Speaker 02: It has all such acts. [00:27:15] Speaker 02: It does have less than all acts, but only if there's something out of their control. [00:27:18] Speaker 02: There's nothing about substantial completion here. [00:27:20] Speaker 02: So your argument doesn't work. [00:27:21] Speaker 02: It just doesn't work. [00:27:24] Speaker 02: The only way you win [00:27:26] Speaker 02: is if all such acts are just the acts on their part, you have that helpful language in the statute that you don't seem to be relying on, or you win if something was beyond their control. [00:27:36] Speaker 02: But while you are focusing on substantially complete, you're walking into a cage with a tiger. [00:27:42] Speaker 02: You lose on that argument. [00:27:48] Speaker 00: Yes, Your Honor. [00:27:49] Speaker 00: I see my time is up. [00:27:50] Speaker 04: Go ahead and respond if you want to. [00:27:52] Speaker 00: Well, I apologize if I've made the wrong argument, Your Honor, but I agree with what the Court said, that under either prong, the facts here meet the disqualification for the three-level discount. [00:28:08] Speaker 04: Thank you, Mr. Hitt. [00:28:09] Speaker 04: Mr. Jones, we'll hear two minutes from you. [00:28:11] Speaker 01: Thank you. [00:28:17] Speaker 01: One thing I'd like to say, Judge Van Dyke, I'd like to address your question, having had a little time to think about it. [00:28:24] Speaker 01: Why the language on their part? [00:28:26] Speaker 01: I think when you read the guideline, that clause of the guideline, on their part distinguishes something contingent on the actions of someone outside the conspiracy. [00:28:37] Speaker 01: On their part means the actions of the conspirators. [00:28:40] Speaker 01: So if you had a conspiracy that depended on [00:28:44] Speaker 01: The person showing up at 8am for work every day and we're going to wait and lay in wait for this guy who's showing up at 8am he misses his bus that's that wouldn't be on their part, but when you're talking on their part makes it contingent on. [00:28:58] Speaker 01: all of the actions on the conspirators' part that they believe necessary. [00:29:02] Speaker 01: And in that sense, and I think this comes from reading the text and the commentary and the cases as well, it's ultimately a collective analysis. [00:29:10] Speaker 01: It's not going to be based on what one conspirator who had a minor role happened to think, like if there was a guy here who his job was to fill the van with gas, then go home. [00:29:20] Speaker 01: Well, he did everything that he, on his part, [00:29:23] Speaker 01: But he didn't have any reason to think that the substantive offense was even attempted. [00:29:28] Speaker 04: I mean, if you look at the second, you may be right about the first part of this, but you still have to deal with the second part of the sentence that talks about circumstances demonstrate that the conspirators were about to complete all such acts. [00:29:42] Speaker 04: Here, it seems like the most difficult thing was just getting the code. [00:29:46] Speaker 04: Once you had the code, you were good. [00:29:48] Speaker 04: Why wouldn't we say that they were about to complete all such acts, meaning the ultimate taking of the computers from the business? [00:30:04] Speaker 01: It seems clear to me driving, let's say they get the correct code, which they never did. [00:30:09] Speaker 01: And they knew it. [00:30:09] Speaker 01: They never thought they did. [00:30:10] Speaker 01: No conspirator thought they had the correct codes. [00:30:13] Speaker 01: It's still a substantial step or a number of steps to take the van and drive it to the warehouse to enter the building. [00:30:23] Speaker 01: If you have the right codes, you can. [00:30:24] Speaker 01: You could get caught pulling your van up to the building in the middle of the night and a patrol car pulls up. [00:30:31] Speaker 01: or there's some other, there's a duplicate alarm system. [00:30:34] Speaker 01: They really don't have it. [00:30:34] Speaker 04: There's lots of things that could go wrong in this, but it seems like in the order of operations as to what could go wrong, the most difficult piece of this was torturing a human being to get information out of their mouth. [00:30:46] Speaker 04: If that part of it is achieved, then you seem to have done the most difficult part of this. [00:30:51] Speaker 01: I think so. [00:30:52] Speaker 01: I think you've done the most complicated part [00:30:56] Speaker 01: And that and that's why they they that's why they failed at that point in their plan, but there were still a couple of steps that weren't completed they weren't simply. [00:31:06] Speaker 01: a no-brainer. [00:31:07] Speaker 01: They still needed some luck, and based on their planning skills, they probably made various mistakes as to the parts of their plan. [00:31:16] Speaker 04: Are there other cases out there that you would point to as sort of ones that are most supportive of this part of your theory? [00:31:24] Speaker 01: I think the Lamb case from the Seventh Circuit from 2000 has a number of parallels. [00:31:35] Speaker 01: Other than that, the case is cited on my brief. [00:31:37] Speaker 01: Certainly, I don't have a case that's factually on point. [00:31:41] Speaker 01: In Martinez Martinez, it's [00:31:45] Speaker 01: I think that case is useful talking about any substantial steps remaining. [00:31:50] Speaker 01: And I think even if you say that they were 75% with the Hobbs Act robbery, the fact that they hadn't even approached the warehouse, hadn't entered it, hadn't spirited away the interstate property, there's a few elements of the Hobbs Act that aren't met. [00:32:06] Speaker 01: The taking hasn't occurred and the interstate element hasn't been met. [00:32:09] Speaker 01: I think those steps, even if they're on balance, [00:32:13] Speaker 01: not the majority of the crime, they're substantial. [00:32:16] Speaker 04: OK, let me see if my colleagues have additional questions for you. [00:32:20] Speaker 03: I have one. [00:32:22] Speaker 03: Was the Hobbs Act robber requires [00:32:30] Speaker 03: either committing or threatening physical violence or obstructing delay or affecting commerce or the movement in every article. [00:32:40] Speaker 03: Was the torture and so on charged as part of the Hobbs Act? [00:32:48] Speaker 03: With the what? [00:32:52] Speaker 03: Getting of the code through violence, was that the violence that was charged here? [00:32:59] Speaker 01: Yes, I believe that was the... I believe that constitutes the force element of the Hobbs Act robbery. [00:33:04] Speaker 01: I think that's fair. [00:33:05] Speaker 03: No, it was the second part of the Hobbs Act, not the first part about... The application of force, yeah. [00:33:10] Speaker 01: By what? [00:33:11] Speaker 01: The application of force, that element. [00:33:13] Speaker 03: Okay. [00:33:14] Speaker 01: I believe so. [00:33:15] Speaker 03: Thank you. [00:33:19] Speaker 04: Okay, Mr. Jones, hearing no more questions, I want to thank you and Mr. Head for your presentations this morning. [00:33:23] Speaker 04: This matter is submitted. [00:33:24] Speaker 04: Thank you.