[00:00:07] Speaker 02:
Good morning, counsel.

[00:00:09] Speaker 05:
Good morning, your honors.

[00:00:10] Speaker 05:
Katherine Young from the Federal Public Defender's Office for Appellant Michael Williams.

[00:00:14] Speaker 05:
I'd like to reserve about three minutes of my time, and I will try to watch the clock as I proceed.

[00:00:19] Speaker 05:
Thank you, counsel.

[00:00:19] Speaker 05:
Mr. Williams is here challenging his 924C counts.

[00:00:24] Speaker 05:
The COA was issued on whether his conviction under 924C must be vacated in light of Johnson.

[00:00:30] Speaker 05:
The COA was issued in 2017, so there's been a lot of water under the bridge since then.

[00:00:35] Speaker 05:
and whether Hobbs Act robbery is a crime of violence under 924C.

[00:00:40] Speaker 05:
So Mr. Williams was convicted of conspiracy to commit Hobbs Act robbery, including under Pinkerton theory and 924C use of a firearm during a crime of violence.

[00:00:50] Speaker 05:
He was sentenced to life on the 924C counts.

[00:00:53] Speaker 04:
Could I ask you, do we have to change our COA, expand our COA to get at what you want us to get at?

[00:00:59] Speaker 05:
I don't think so, Your Honor.

[00:01:00] Speaker 04:
I'll take that.

[00:01:01] Speaker 04:
I'll take that, because you don't have a lot of time.

[00:01:02] Speaker 04:
I'll just take the opening.

[00:01:04] Speaker 04:
I think it's, sorry.

[00:01:05] Speaker 04:
Fine.

[00:01:05] Speaker 04:
So can you frame the question you want us to, because as you said, this briefing has spanned a long time.

[00:01:11] Speaker 04:
So the question you want us to reach today on 924C is whether conspiracy to commit Hobbs Act robbery is a crime of violence, or whether Hobbs Act robbery is a crime of violence, or something else?

[00:01:24] Speaker 05:
We're challenging all three predicates.

[00:01:26] Speaker 05:
So there's a 924-C count which has three predicates.

[00:01:29] Speaker 05:
We're challenging all three of them.

[00:01:30] Speaker 05:
And I think that's within both of the two COAs.

[00:01:34] Speaker 05:
That's fine.

[00:01:35] Speaker 05:
In fact, because the first one, which invalidates Johnson, Johnson invalidated the residual clause.

[00:01:40] Speaker 05:
So all that was left was the fourth clause.

[00:01:42] Speaker 05:
And essentially, we're claiming that the three predicates don't constitute

[00:01:46] Speaker 05:
don't have the element of force as to Mr. Williams.

[00:01:50] Speaker 04:
Which of those, please, are you arguing just to preserve?

[00:01:55] Speaker 04:
Because there's been a case law development since the time you filed.

[00:01:59] Speaker 05:
Yes, there have been.

[00:02:00] Speaker 05:
I mean, we think that they are invalid.

[00:02:03] Speaker 05:
There are, on two of the issues, cases against us with which attempted to distinguish in our briefs.

[00:02:09] Speaker 05:
But we do think that there are reasons to their intervening authority and maybe the lurking theory that issues which merely lurk in the record but were decided can apply to those cases.

[00:02:19] Speaker 05:
But on two, there are cases that are against us that we're trying to distinguish or argue should be revisited.

[00:02:29] Speaker 05:
Williams went to trial in 2010.

[00:02:30] Speaker 05:
The jury was instructed, with respect to the robbery in the 924C counts, that there were two ways to prove him guilty, by committing the crime himself or by being part of a conspiracy, during which the reasonably foreseeable crime of robbery and knowing use of a firearm was occurring.

[00:02:46] Speaker 04:
Are you focusing on extraction 18?

[00:02:49] Speaker 05:
There are a number of Pinkerton instructions that we're focusing on.

[00:02:52] Speaker 05:
I think there's five separate ones.

[00:02:54] Speaker 04:
So just so you both know, these instructions are unfortunately numbered several times, and you're using them differently.

[00:03:02] Speaker 04:
And so the ER sites get pretty muddled on our end.

[00:03:05] Speaker 04:
OK.

[00:03:05] Speaker 04:
Hence my question.

[00:03:07] Speaker 05:
Yeah, I'm sorry.

[00:03:07] Speaker 05:
I think there are several Pinkerton instructions, and basically we're challenging the Pinkerton theory.

[00:03:13] Speaker 04:
Well, right.

[00:03:14] Speaker 04:
So maybe I could do it this way.

[00:03:17] Speaker 04:
You have argued that the jury could have found that conspiracy to commit Hobbs Act robbery was a qualifying predicate on this set of instructions.

[00:03:26] Speaker 04:
Can you point me to the instruction that you think told the jury that?

[00:03:30] Speaker 04:
I don't know if I have an ER site in my notes.

[00:03:37] Speaker 04:
Is it one of the 924C instructions?

[00:03:39] Speaker 04:
Those are 18 and 19.

[00:03:40] Speaker 05:
I have instructions where the government argued, which is SCR 2806.

[00:03:50] Speaker 04:
The government argued that predicate.

[00:03:53] Speaker 04:
I'm trying to figure out, I understand today you're arguing instructional error.

[00:03:57] Speaker 05:
Yes.

[00:03:58] Speaker 05:
And the government argued the predicate.

[00:04:01] Speaker 05:
And I think there's also elements that are cited within the instruction itself that also permit.

[00:04:07] Speaker 04:
I understand that.

[00:04:08] Speaker 04:
But maybe when you come back, if you could tell me exactly which instruction you want us to look at for the instructional error argument.

[00:04:14] Speaker 05:
I think I've got ER 174.

[00:04:16] Speaker 05:
Each member of a conspiracy is responsible for the actions of the other conspirators.

[00:04:21] Speaker 05:
If one member of a conspiracy commits a crime in furtherance of a conspiracy, other members have also, under the law, committed that crime.

[00:04:28] Speaker 01:
So why is that instruction erroneous?

[00:04:32] Speaker 05:
Well, because conspiracy has been held to be an invalid predicate for 924C.

[00:04:35] Speaker 05:
And the government concedes that.

[00:04:38] Speaker 05:
The government doesn't dispute that conspiracy is an invalid predicate.

[00:04:40] Speaker 01:
But you have to look at all of the instructions, correct?

[00:04:44] Speaker 01:
Yes.

[00:04:45] Speaker 01:
And so would any error be harmless if the other instructions properly covered the proof at trial?

[00:04:54] Speaker 05:
Well, I think that there are different instructions.

[00:04:57] Speaker 05:
There are some instructions that are conspiracy, some instructions on Pinkerton, which is a conspiracy with reasonable foreseeability thrown in.

[00:05:05] Speaker 05:
And some on Hobbs Act robbery.

[00:05:07] Speaker 04:
Yes.

[00:05:07] Speaker 04:
So I think there's, I'm sorry, I didn't mean to interrupt you.

[00:05:10] Speaker 04:
You're fine, but we're trying to get to, there were, your position is that there were three predicates.

[00:05:16] Speaker 04:
Yes.

[00:05:16] Speaker 04:
And you think at least one was not a qualifying predicate.

[00:05:19] Speaker 04:
And but you're arguing instructional error.

[00:05:22] Speaker 04:
I don't think the government is contesting that at trial they argued that conspiracy to commit Hobbs Act robbery was a qualifying predicate.

[00:05:28] Speaker 04:
And they've now backed off that, of course, because the case law has changed.

[00:05:32] Speaker 04:
But I'm understanding you to be arguing quite specifically that the jury, looking at these instructions, could have gotten this wrong.

[00:05:39] Speaker 04:
And since you've got at least one, I think you're well,

[00:05:44] Speaker 04:
I think that's what the district court thought, and I'm certainly inclined to agree that there's at least one qualifying predicate here in the instructions for Hobbs Act robbery, straight up or through a Pinkerton theory.

[00:05:56] Speaker 04:
But if there is one, at least one qualifying predicate, and if we find that, then we do a harmless error analysis, right?

[00:06:03] Speaker 04:
That's our argument under read.

[00:06:05] Speaker 04:
Okay.

[00:06:05] Speaker 04:
And so do you want to go to that and explain if we get to harmless error analysis, why this would cut in favor of your client?

[00:06:14] Speaker 05:
Well, because we're arguing the jury could have found culpability and found him guilty based on a theory that has since been invalidated.

[00:06:22] Speaker 05:
And since we don't know which theory the jury ultimately found on, then the law says if there's a lack of clarity and the jury could have found an invalid predicate,

[00:06:32] Speaker 05:
then it needs to be vacant.

[00:06:33] Speaker 04:
Well, that is the harmless error analysis.

[00:06:34] Speaker 04:
Yes.

[00:06:35] Speaker 04:
So the district court recognized that.

[00:06:36] Speaker 04:
And he said, even if that conspiracy to commit Hogg's Act robbery instruction was incorrect, or if the jury misunderstood that, that's certainly what the government argued.

[00:06:44] Speaker 04:
I grant you that.

[00:06:46] Speaker 04:
That there was another predicate that the jury was instructed upon, and the government tried its case to, which is that both Mr. Williams and Mr. Johnson were actually robbers.

[00:06:57] Speaker 04:
And that qualifies.

[00:06:58] Speaker 04:
So then he went to a harmless error analysis, right?

[00:07:01] Speaker 04:
the district court did to decide and can you go run through that please and give us your best argument for why you think that you're the jury wouldn't have relied on Hobbs Act robbery.

[00:07:11] Speaker 05:
Well, because we think that the evidence is very murky in this case.

[00:07:15] Speaker 05:
There's no witnesses identifying Mr. Williams, even though there were a lot of witnesses.

[00:07:19] Speaker 05:
The only thing that tied him was a glove that was found down the street under debris that had his DNA on it, but wasn't otherwise tied to the robbery.

[00:07:27] Speaker 05:
There was no gunshot residue on the glove.

[00:07:31] Speaker 05:
There was no one who identified one of the robbers as wearing that Kaiba glove.

[00:07:36] Speaker 05:
the attachment of that glove to the robbery wasn't clear.

[00:07:39] Speaker 05:
What about Jamal Donegan's testimony?

[00:07:41] Speaker 05:
Let me get to that, too.

[00:07:43] Speaker 05:
There were also two snitches that testified, Dunigan and another one whose name I'm always forgetting.

[00:07:50] Speaker 05:
Jackson.

[00:07:51] Speaker 05:
Jackson.

[00:07:52] Speaker 05:
Jackson especially was a professional snitch who basically told people, I will teach you how to make up lies in order to convict someone.

[00:08:00] Speaker 05:
And he did in this case, made up stuff about the offense that was not true.

[00:08:04] Speaker 04:
He was a cellmate to Mr. Williams for about four months.

[00:08:07] Speaker 05:
Yes, and the cell was recorded.

[00:08:09] Speaker 05:
It was monitored by the guards.

[00:08:11] Speaker 05:
So it's insane to think that Mr. Williams would have confessed his crimes to Mr.

[00:08:18] Speaker 05:
Jackson.

[00:08:19] Speaker 05:
Jackson, knowing that he's being recorded.

[00:08:22] Speaker 05:
But Mr. Donegan was also characterized by the district court, not only as a robber and a serial, but as someone who was incredible, whose testimony had been impeached.

[00:08:33] Speaker 05:
So we're claiming that the evidence, if the jury disregarded the testimony of the snitches, then all they had was some uncertain potential connection that was created by the DNA on the glove.

[00:08:47] Speaker 05:
And they could have found that he was somehow involved, but they didn't know how, but part of the conspiracy.

[00:08:53] Speaker 05:
So they found him guilty on a conspiracy theory if they had rejected the snitches, because the evidence is just so unclear.

[00:08:59] Speaker 05:
So that's why we're arguing that it is prejudicial.

[00:09:03] Speaker 05:
And we're also attacking the other theories of Pinkerton and Hobbs Act property.

[00:09:08] Speaker 05:
So let me try to go very quickly into Pinkerton because I've only got 59 seconds left.

[00:09:12] Speaker 04:
What is your strongest Pinkerton argument?

[00:09:14] Speaker 04:
In light of Henry, we've got the Henry authorities.

[00:09:16] Speaker 04:
What's your strongest Pinkerton argument?

[00:09:17] Speaker 05:
Okay.

[00:09:18] Speaker 05:
In Pinkerton, it's a negligence theory.

[00:09:20] Speaker 05:
It's a reasonable foreseeability negligence theory.

[00:09:23] Speaker 05:
Now, Henry said that we don't have to look at the elements of accomplice liability because accomplice is found as liable as the principal.

[00:09:31] Speaker 05:
But in fact, that's inconsistent with other lines of authority in this court, Valdivia and Alfred, which say we do have to, in the categorical analysis, look at elements of accomplice liability.

[00:09:43] Speaker 05:
It's inconsistent with Rosamond, who said that an accomplice has to have knowledge, advanced knowledge, sufficiently in advance of the use of the gun so that he can proceed with the offense with a knowing use of the gun.

[00:09:55] Speaker 05:
We also contend that a Pinkerton theory of negligence is incompatible with a long line of authority from the Supreme Court

[00:10:00] Speaker 05:
starting with Leah Cal saying that you can't predicate a crime of violence on a negligence mens rea, and continuing even after Henry in the Borden and Taylor cases where the court said you have to focus on the defendant's use, threatened use, or attempted use of violence

[00:10:19] Speaker 05:
and that it can't be a reckless theory.

[00:10:22] Speaker 05:
So we contend that all these arguments, the landscape of the Supreme Court, the incompatibility of the two lines of authority in the Ninth Circuit require revisiting whether Pinkerton on a negligence theory is sufficient for a crime of violence.

[00:10:36] Speaker 04:
All of that other intervening authority, your position is that it, as a package deal, and you briefed this, and I appreciate that very much, that that case law,

[00:10:48] Speaker 04:
sufficiently undermines Henry.

[00:10:50] Speaker 04:
Yes, I think Borden and Taylor follow Henry, and we're also arguing that Henry didn't act, didn't take into consider.

[00:10:57] Speaker 04:
But none of them directly relate to what you're talking about, which is Pinkerton.

[00:11:00] Speaker 04:
Henry's the one that goes to Pinkerton, and in order for us to not be bound by Henry, which is the Pinkerton requires that we, for a 924C analysis, we treat the underlying, the conviction the same, right?

[00:11:12] Speaker 04:
And so I think what you have to do is show that all of that package of authority sufficiently undermined Henry's.

[00:11:19] Speaker 04:
Do I misunderstand your argument?

[00:11:20] Speaker 05:
No, I understand.

[00:11:21] Speaker 05:
That is what we're saying.

[00:11:22] Speaker 05:
We're saying Henry is incompatible with another line of authority.

[00:11:25] Speaker 05:
Valdivia and Alfred saying you have to look at the elements of accomplice liability.

[00:11:29] Speaker 05:
It doesn't really consider Rosamond because it's relying on NOSAL, and NOSAL was relying on a comp, aiding and abetting, which does comply with Rosamond as opposed to Pinkerton, which does not.

[00:11:41] Speaker 05:
And then we're arguing that this room court, even after Henry, continued in its cases, not necessarily dealing with Pinkerton, but with the elements that must be found to convict the defendant of a crime of violence.

[00:11:52] Speaker 05:
So, and I see I'm well over my time, so.

[00:11:54] Speaker 02:
All right, thank you, counsel.

[00:11:54] Speaker 02:
We'll give you a minute for rebuttal.

[00:11:56] Speaker 05:
Thank you, your honor.

[00:12:12] Speaker 03:
Good morning, Your Honours, may it please the Court, Saria Bahadou, on behalf of the United States.

[00:12:18] Speaker 03:
So I do just want to address a few things before getting into my argument.

[00:12:23] Speaker 03:
I do think the Court would have to expand the certified issues because the Court did not certify the issue for this case with respect to whether or not Hobbs Act robbery committed under a Pinkerton theory of liability is a crime of violence.

[00:12:39] Speaker 04:
Right.

[00:12:39] Speaker 04:
And yes.

[00:12:41] Speaker 04:
So can you go to the government's changing ... The COA in this case is right, whether this 924C had to be vacated in light of Johnson and whether Hobbs Act robbery constitutes a crime of violence.

[00:12:56] Speaker 00:
That's correct.

[00:12:56] Speaker 04:
But in Johnson's case, the COA is neither conspiracy to commit Hobbs Act robbery nor

[00:13:02] Speaker 04:
Hobbs Act robbery under Pinkerton theory qualifies a crime of violence.

[00:13:06] Speaker 03:
That's correct.

[00:13:06] Speaker 03:
So I think in the Johnson case, it is one of the certified issues, whereas here it's not.

[00:13:13] Speaker 03:
That said, obviously Hobbs Act robbery is a crime of violence under Dominguez and now Eckford.

[00:13:19] Speaker 03:
And our position is that Pinkerton is a form, is an alternative means of committing the underlying offense.

[00:13:25] Speaker 03:
And so by finding that Hobbs Act robbery is a crime of violence, so too is Hobbs Act robbery.

[00:13:31] Speaker 03:
one committed under a Pinkerton theory of liability.

[00:13:33] Speaker 03:
The government's position has changed from the district court.

[00:13:36] Speaker 03:
In terms of whether there was an instructional error, yes.

[00:13:39] Speaker 03:
Yes.

[00:13:40] Speaker 03:
And I think it's just in reviewing the instructions a little bit more closely, and your honor is right, it is instruction number 18, and it's at ER 172, and it's instruction number 19, which starts at ER 174 in this case.

[00:13:55] Speaker 03:
And it's really because when you look at it, the instruction talks about two ways

[00:14:01] Speaker 03:
that you can commit this 924C.

[00:14:04] Speaker 03:
And one is by committing the robbery yourself, committing the robbery as the robber.

[00:14:09] Speaker 03:
But then when it actually goes into the conspiracy, the second way, and the government- I think it's a pattern Pinkerton.

[00:14:17] Speaker 03:
We think so too.

[00:14:18] Speaker 04:
I'm not suggesting that I disagree with you about how the instructions read.

[00:14:22] Speaker 04:
But it is a peculiar posture that we find ourselves in, because the case wasn't tried that way.

[00:14:26] Speaker 04:
Yes.

[00:14:27] Speaker 04:
And then at 2255, the

[00:14:30] Speaker 04:
The government didn't argue it that way.

[00:14:33] Speaker 04:
And so now you are asking us, if I agree with you, if the panel agrees with you more importantly, about how those instructions read now, it does mean, I think, that we're saying that the instructions at the time of trial didn't pattern the government's theory.

[00:14:50] Speaker 04:
I think that's right.

[00:14:51] Speaker 04:
Very peculiar, to say the least.

[00:14:53] Speaker 03:
I think that's right.

[00:14:54] Speaker 03:
I do think, and we recognize there's attention, and at the end of the day, the standard on harmless error review in this habeas posture is to look at the entire record.

[00:15:03] Speaker 04:
Well, I think that's what saves you.

[00:15:04] Speaker 03:
Yes.

[00:15:05] Speaker 04:
I think, if I'm understanding your theory, because otherwise, this is a pretty gutsy move for the government to take the position that what it argued at trial didn't match the instructions, and the jury should have known that, even though the government didn't know that.

[00:15:19] Speaker 04:
That's fair, that's fair, and I think, I think we want to- I'm trying to give you a hard time, but I am trying to make sure that I understand what we're doing here.

[00:15:25] Speaker 04:
I think the point- I think that's the position you're in, isn't it?

[00:15:27] Speaker 03:
Yes, but I think that the point that we were trying to make is that if you are going to claim as a petitioner in a habeas posture that this instructional error was so substantial and injurious, then it should really be an instructional error.

[00:15:40] Speaker 03:
And when you look at this instructional error, it's not your typical instructional error where you have it really well defined in terms of your invalid predicate versus your valid predicate.

[00:15:49] Speaker 04:
Well, or maybe you did.

[00:15:50] Speaker 04:
Doesn't this all wash out?

[00:15:52] Speaker 04:
The district court's reasoning was maybe there's an instructional error over here, and I think he even accepted that there was, because that was the government's position after all, but that he had a valid predicate in Hobbs Act robbery.

[00:16:04] Speaker 03:
We do think it all washes out, because the government's theory at trial was that these two individuals, and we say this in our closing argument, the only dispute

[00:16:13] Speaker 03:
is whether or not Defendant Williams and Defendant Johnson were the ones firing and shooting the weapons.

[00:16:20] Speaker 04:
Let me ask you this then.

[00:16:21] Speaker 04:
If the Hogs Act robbery is a valid predicate, and I think that our case law establishes that at this point, then there's another way that the government could lose or the defendants could win, depending on your perspective here, and that is that if it's not correct, you had two Hogs Act robbery theories, right?

[00:16:38] Speaker 04:
One is the direct commission of the offense and one was Pinkerton.

[00:16:41] Speaker 04:
So even on count two,

[00:16:43] Speaker 04:
If the jury had relied on count to Pinkerton only, that would be another potential vulnerability to the government's case.

[00:16:52] Speaker 04:
And for that, I think you have to be relying on Henry.

[00:16:54] Speaker 03:
Yes, I think the only way actually for the petitioners to prevail is if this court were to overrule Henry.

[00:17:01] Speaker 03:
And I say that because there's really two paths to affirmance here.

[00:17:03] Speaker 03:
One is in terms of the harmless error analysis, one is factual, and one is legal.

[00:17:09] Speaker 03:
And when you look at the legal path, even if this defendant was some planner and the jury found him guilty of conspiracy,

[00:17:17] Speaker 03:
He still necessary that finding necessarily means he would have been found guilty of substantive Hobbs Act robbery under Pinkerton theory of liability.

[00:17:25] Speaker 03:
And so I think the core I think the only way that the petitioners can prevail, even if this court did not get into this into the facts which we still think is a great argument and a strong argument.

[00:17:34] Speaker 03:
is for the court to overrule Henry and we don't think there's a basis to do so.

[00:17:38] Speaker 00:
What do you make of the distinction your friend draws in terms of the mens rea and how concerned should we be about this is essentially, whether we're bound by Henry, but it does seem like we're reading a negligence theory into the use of the firearm here.

[00:17:56] Speaker 03:
I don't think in Henry the court did grapple with this.

[00:18:00] Speaker 03:
This was the main one of the main arguments and the court thought it through, including with the perspective of Rosamond and specifically said may Rosamond may have held advanced knowledge is required for aiding and abetting liability.

[00:18:12] Speaker 03:
But it did not hold that for Pinkerton.

[00:18:15] Speaker 03:
And I think at the end of the day, Pinkerton itself specifically says that the intent happens at the formation of the conspiracy.

[00:18:22] Speaker 04:
And one has to knowingly enter the conspiracy.

[00:18:25] Speaker 03:
Exactly.

[00:18:25] Speaker 03:
And when we look at intent for conspiracy, we're always looking at the intent of the underlying, substantive crime.

[00:18:33] Speaker 04:
I shared John Stone's concern.

[00:18:38] Speaker 04:
And so when we're talking about that, we take that very seriously when we're, we can't really tell what Congress intended here, right?

[00:18:49] Speaker 04:
Because this isn't personal use, necessarily personal use of a firearm.

[00:18:52] Speaker 04:
So it's a, it is a, it's a, it's a, it's a, it's a, it's a, it's a, it's a, it's a, it's a, it's a, it's a, it's a

[00:18:55] Speaker 04:
It is conundrum.

[00:18:56] Speaker 04:
At this point, it seems that we're bound by Henry as Judge Johnston.

[00:18:59] Speaker 03:
I think so, too.

[00:19:00] Speaker 03:
And I think it's difficult.

[00:19:01] Speaker 03:
I think so, too.

[00:19:02] Speaker 03:
But I think I would say the 924C, the actual language of it is not whether the defendant used force.

[00:19:08] Speaker 03:
It's whether the offense involved force.

[00:19:10] Speaker 04:
I agree.

[00:19:10] Speaker 03:
So there's not really this personal use requirement.

[00:19:14] Speaker 04:
Well.

[00:19:15] Speaker 04:
we grappled with it.

[00:19:17] Speaker 04:
I think it's a tough call.

[00:19:18] Speaker 03:
Of course.

[00:19:18] Speaker 03:
And I think I would defer the court to Henry.

[00:19:21] Speaker 03:
I think the analysis was incredibly thorough in that case.

[00:19:24] Speaker 03:
And I think the court grappled with it as well.

[00:19:27] Speaker 03:
And just like any other alternative form of liability, the accomplice is treated just like the principal.

[00:19:35] Speaker 03:
And that's something that has existed in this court's jurisprudence for quite some time.

[00:19:39] Speaker 04:
What about the factual analysis here?

[00:19:41] Speaker 04:
The district court also went through the facts quite carefully.

[00:19:45] Speaker 04:
As to Mr. Williams, the Burgess testimony didn't come in.

[00:19:49] Speaker 03:
Correct.

[00:19:50] Speaker 04:
It was pretty thoroughly impeached anyway.

[00:19:52] Speaker 03:
Correct.

[00:19:52] Speaker 04:
And opposing councils argued that the Jamal Dunigan testimony was also quite thoroughly impeached.

[00:20:00] Speaker 04:
The jury could decide what they wanted, I guess, as to that.

[00:20:02] Speaker 04:
And then there's the DNA evidence, right?

[00:20:04] Speaker 04:
Is there anything else for vis-a-vis Mr. Williams?

[00:20:07] Speaker 03:
I don't believe so.

[00:20:08] Speaker 03:
I think the court has it right.

[00:20:09] Speaker 03:
There's the DNA match on the latex glove.

[00:20:11] Speaker 03:
There's the witnesses who saw armed robbers.

[00:20:13] Speaker 03:
There are gardeners who saw the latex gloves drop as they passed by or a clip as well as a magazine clip as well.

[00:20:21] Speaker 03:
And I think when you look at the cooperator testimony, there's quite a bit that is corroborated by the physical evidence.

[00:20:27] Speaker 03:
I think one of the cooperators was told

[00:20:29] Speaker 03:
by Williams that he was worried because he dropped a magazine clip.

[00:20:33] Speaker 03:
One of the cooperators was told how much money was involved in the robbery, and that's something that they wouldn't know unless they were told that by one of the robbers.

[00:20:41] Speaker 03:
And so I take counsel's point about cooperators, but at the end of the day, the jury heard all of this evidence, and they are the finders of fact.

[00:20:48] Speaker 03:
And I think in Montalvo, this court specifically said,

[00:20:52] Speaker 03:
on a deferential standard of review were not in a position to question the credibility findings of the jury.

[00:20:58] Speaker 03:
And that's another habeas case, harmless error analysis.

[00:21:02] Speaker 03:
And even in Reed, the court was very specific to say it's not whether the evidence points to guilt.

[00:21:06] Speaker 03:
We know that they were found guilty but beyond a reasonable doubt.

[00:21:09] Speaker 03:
It's whether or not there was a substantial and injurious effect.

[00:21:13] Speaker 03:
And here, all of the facts from the conspiracy, particularly with Williams,

[00:21:17] Speaker 03:
comes from the robbery on the ground that day, when they ended up murdering the armature.

[00:21:24] Speaker 04:
The formation of the conspiracy.

[00:21:25] Speaker 03:
Yes, I think with, yes.

[00:21:26] Speaker 04:
That was a coordinated effort.

[00:21:27] Speaker 03:
Yes, exactly.

[00:21:28] Speaker 03:
I mean, in closing, the government specifically walked through how they wore gloves, wigs, brought guns, had getaway cars, and then the government summarized all of that by saying all of that took planning.

[00:21:41] Speaker 03:
And so we think, unless the court has further questions, because I see I'm running down on time,

[00:21:46] Speaker 02:
It appears not.

[00:21:47] Speaker 02:
OK, we ask that the court affirm.

[00:21:48] Speaker 02:
Thank you.

[00:21:49] Speaker 02:
Thank you, counsel.

[00:21:50] Speaker 02:
One minute for rebuttal.

[00:21:58] Speaker 05:
Thank you, Your Honor.

[00:21:58] Speaker 05:
I did want to respond to one comment that Ms.

[00:22:00] Speaker 05:
Bahadour said about gardeners who saw the gloves dropped.

[00:22:06] Speaker 05:
And this was discussed in the brief.

[00:22:08] Speaker 05:
The gardeners did not see the gloves dropped.

[00:22:10] Speaker 05:
And what they saw dropped was not the glove that was found in the street, because the gardener saw a glove dropped on the sidewalk, which they said they assumed had been dropped by the robbers.

[00:22:18] Speaker 05:
Not that they saw it dropped by the robbers.

[00:22:20] Speaker 05:
They assumed it had been, because it hadn't been there before, because they kept the sidewalk clean.

[00:22:25] Speaker 05:
But the glove that was tied to Mr. Williams was found in the street under debris.

[00:22:30] Speaker 05:
And that makes it even more attenuated in its connection to the robbery.

[00:22:34] Speaker 05:
And I see I'm running out of time, so unless there are any further questions.

[00:22:37] Speaker 02:
Thank you, counsel.

[00:22:38] Speaker 02:
Thank you to both counsels for your helpful arguments.

[00:22:40] Speaker 02:
The case just argued is submitted for decision by the court.