[00:00:00] Speaker 03:
Good morning.

[00:00:01] Speaker 03:
May it please the court, Gail Ivins, appearing on behalf of Petitioner Appellant Reginald Elmore.

[00:00:08] Speaker 01:
Do you plan to reserve any time for a rebuttal?

[00:00:11] Speaker 01:
Best case scenario, I do.

[00:00:13] Speaker 01:
OK.

[00:00:14] Speaker 03:
Just please remember to watch the clock.

[00:00:16] Speaker 03:
Thank you, Your Honor.

[00:00:17] Speaker 03:
I was thinking this morning about the fact that 40 years ago, I was a third year law student across the bay.

[00:00:22] Speaker 03:
And this case really could have been the McBain competition.

[00:00:27] Speaker 03:
question.

[00:00:29] Speaker 03:
Looked at one way, it's a very complicated case.

[00:00:32] Speaker 03:
It has lots of layers that we can talk about this morning.

[00:00:36] Speaker 03:
My position, obviously, is that looked at another way, it's very straightforward.

[00:00:42] Speaker 03:
There's a 924J conviction

[00:00:47] Speaker 03:
924C is part of that, which requires a very specific type of crime of violence.

[00:00:54] Speaker 03:
The specific crime of violence under the categorical approach is the Vicar Counts that were alleged in the indictment, which were specifically alleged by the government in the indictment to rest on California murder law.

[00:01:11] Speaker 03:
And there is nothing in the plea colloquy or any of the other shepherd documents that can be looked at that suggests that the plea was based on anything else.

[00:01:22] Speaker 01:
So at one point in the plea colloquy, I believe the government represents that they're going to prove killing with malice aforethought or murder, which they define as killing with malice aforethought.

[00:01:34] Speaker 01:
And then I believe in

[00:01:37] Speaker 01:
Begay we held that at least under the federal generic definition killing with malice of forethought would qualify as a crime of violence because malice of forethought would be defined as including the least mens rea of depraved heart recklessness.

[00:01:55] Speaker 01:
But then we have California law which seems to potentially have a different definition, statutory definition of malice of forethought.

[00:02:04] Speaker 01:
It seems to me that comes down to the

[00:02:07] Speaker 01:
crux of whether there's a categorical match, and then the question is, which definition are we looking at?

[00:02:13] Speaker 01:
What's your best argument for why we should be looking at the state law definition instead of the federal?

[00:02:21] Speaker 03:
The entire prosecution of this case rested on the state law definition and included implied malice, and that can be seen both in the indictment.

[00:02:29] Speaker 03:
That's alleged in the indictment.

[00:02:31] Speaker 03:
Yeah, alleged in the indictment, and it appears in all the jury instructions that were given for the co-defendants.

[00:02:37] Speaker 03:
The language, you can look at the language.

[00:02:40] Speaker 01:
They wear those in the record?

[00:02:41] Speaker 03:
I do, somewhere.

[00:02:43] Speaker 03:
CR 2274 at page 40.

[00:02:46] Speaker 03:
are the jury instructions for the co-defendants who are tried after the fact, and I can get you the one for the heard instructions that are referenced in their cert petition and in their appeal.

[00:03:03] Speaker 03:
That was clearly that language, and I think that if the court compares that language, the language of those jury instructions, to the language of this court's model jury instructions for second-degree murder under 18 U.S.C.

[00:03:18] Speaker 03:
1111, you can see the difference in the language, because 1111 doesn't have the implied malice, natural consequences.

[00:03:26] Speaker 03:
type of language.

[00:03:27] Speaker 03:
It has the very specific language that the en banc panel relied upon in Begay 2 to find that it rose to the level of some kind of uber recklessness that got it out of Borden's holding and addressed the question that was left open in Borden.

[00:03:46] Speaker 03:
And so the best case, Vertahoff out of this court, had a very similar analysis with regard to Washington State's

[00:03:55] Speaker 03:
second degree murder.

[00:03:57] Speaker 03:
California murder is very similar.

[00:03:59] Speaker 03:
I mean, the government has been relying on California murder as the basis forever because of the understanding of the structure of Vicar.

[00:04:10] Speaker 03:
It can't be federal murder because it's not on a federal enclave, right?

[00:04:15] Speaker 03:
They have to be able to be charged with that.

[00:04:17] Speaker 03:
So it has to be something that they could, assumedly, be charged with, and you can't, if you're just in a street gang in the Bay Area,

[00:04:26] Speaker 03:
not on a military base.

[00:04:28] Speaker 03:
You can't be charged with that.

[00:04:31] Speaker 02:
So they have to allege a state predicate.

[00:04:35] Speaker 03:
That clearly has been the understanding for at least 20 years, that you have to allege a state murder in order to come within the Vicar statute.

[00:04:42] Speaker 03:
And then this is why it gets complicated, and I understand it can be seen as complicated.

[00:04:47] Speaker 03:
There are a lot of cases that talk about how you analyze Vicar murder itself standing alone.

[00:04:53] Speaker 03:
And as I said in my reply brief, we're not analyzing a Vicar conviction.

[00:04:59] Speaker 03:
We're analyzing Vicar as alleged as the predicate because he agreed under a Pinkerton theory that that was the predicate.

[00:05:07] Speaker 03:
But a Vicar conviction, whether a Vicar conviction itself has to meet any kind of categorical standard is a separate question.

[00:05:16] Speaker 03:
I mean, it's clear that under 924C, you have to apply the categorical approach.

[00:05:21] Speaker 03:
The Supreme Court just did that in Taylor.

[00:05:23] Speaker 01:
It seems to me that the 4th Circuit just has a different interpretation of the elements of Vicar.

[00:05:30] Speaker 01:
They actually have cases holding that the government has to prove both the elements of federal generic murder and the state law predicate.

[00:05:41] Speaker 01:
And if they're not an exact match, they have to prove all of them.

[00:05:44] Speaker 01:
I don't see any case law in the 9th squarely holding that.

[00:05:49] Speaker 03:
The Fourth Circuit actually just as the preamble to answering Your Honor's question, the Fourth Circuit has gone all over the map on this.

[00:05:57] Speaker 03:
I mean, the two cases in the 28-J letter have bizarre, in my personal opinion, bizarre analyses of how you interpret, you know, Vicar, which includes the purpose element of Vicar can somehow satisfy the better than reckless intent requirement.

[00:06:15] Speaker 03:
And I'm not familiar with that.

[00:06:17] Speaker 03:
I mean, I get it.

[00:06:18] Speaker 03:
I get that when you have a case where someone has a murder, you expect, as a layperson, that that's a crime of violence.

[00:06:27] Speaker 03:
I get that, but we're looking at something that's a very strict rule from the Supreme Court, despite Justice Thomas thinking we should do away with it.

[00:06:36] Speaker 03:
We have a very specific analysis with the crime of violence, and we've got, you know, the residual clause is gone, and so second-degree murder under California law, which may have qualified under the residual clause, now has to qualify under the elements clause.

[00:06:49] Speaker 01:
Well, it seems to me that the interpretation of Vicar that the government is advocating for here, if they actually took it in a case where they were seeking a conviction for Vicar murder, would make it more difficult for them to prove.

[00:07:02] Speaker 01:
But it's not clear to me we've ever actually required what they're arguing we should require here in a question of categorical match.

[00:07:11] Speaker 03:
Right.

[00:07:11] Speaker 03:
To get back to your honest question, I apologize for not getting back to it.

[00:07:14] Speaker 03:
I don't believe there is any published Ninth Circuit decision that discusses most of the issues that we have here today.

[00:07:21] Speaker 03:
And I don't think there's even an unpublished decision that really addresses this sort of Fourth Circuit purpose.

[00:07:29] Speaker 03:
It has to also be federal generic murder.

[00:07:33] Speaker 02:
Now, the Second Circuit basically goes along with your approach, correct?

[00:07:36] Speaker 03:
Yes.

[00:07:37] Speaker 03:
Yes, Your Honor.

[00:07:39] Speaker 02:
The recent opinion by, I forget the name of the case, by Judge Sullivan.

[00:07:43] Speaker 03:
If I didn't cite it, I apologize.

[00:07:45] Speaker 03:
And the Second Circuit previously had gone along with this approach, yes.

[00:07:50] Speaker 01:
And the 11th.

[00:07:51] Speaker 03:
I think we have a clutch, and possibly even the 6th.

[00:07:53] Speaker 03:
But I'd have to look back at my briefing to make sure I'm getting the correct circuits.

[00:07:58] Speaker 03:
But I think that's right.

[00:07:59] Speaker 03:
I'm not aware of a prior analysis.

[00:08:01] Speaker 03:
I do think if the government's going to have trouble

[00:08:04] Speaker 03:
getting convictions when they now have decided that this is what they want to do because they're going to have to prove up this depraved heart murder situation.

[00:08:16] Speaker 03:
And a lot of these gang prosecutions going back to Shriok will not satisfy that standard.

[00:08:22] Speaker 01:
Do you want to reserve your time?

[00:08:23] Speaker 03:
I would like to reserve my time.

[00:08:24] Speaker 03:
Thank you, Your Honor.

[00:08:36] Speaker 04:
May it please the court, Sangita Rao on behalf of the United States.

[00:08:42] Speaker 04:
This court should affirm the district court's careful opinion holding that Elmore's 924-J conviction is supported by a valid crime of violence.

[00:08:50] Speaker 04:
That's second degree, Vicar's second degree, non-felony murder.

[00:08:55] Speaker 04:
Now there are a lot of procedural barriers to the defendant's claims and his claim fails on the merits.

[00:08:59] Speaker 04:
I'm going to focus on the merits here because time is short.

[00:09:03] Speaker 04:
The charged FICAR murder qualifies as a categorical crime of crime of violence.

[00:09:09] Speaker 04:
The argument has three major steps.

[00:09:11] Speaker 04:
I'm going to say them quickly and then go back.

[00:09:13] Speaker 01:
Counsel, since your time is limited, I'll just cut to the chase.

[00:09:16] Speaker 01:
What can you point to in this case, either in the charging document or the plea colloquy that shows that the government actually represented that it could prove and the defendant admitted that the government could prove malice of Hortha under the federal definition?

[00:09:35] Speaker 04:
Sure.

[00:09:37] Speaker 04:
So under the federal definition, the indictment pledged that Elmore unlawfully and knowingly did murder Helton and Turner.

[00:09:47] Speaker 04:
That's an indictment count six and seven.

[00:09:49] Speaker 04:
So that charges an intentional knowing murder.

[00:09:54] Speaker 02:
That was for purposes of the death penalty, correct?

[00:09:57] Speaker 04:
No, I'm sorry.

[00:09:58] Speaker 04:
Your Honor, that was in Counts 6 and 7.

[00:09:59] Speaker 04:
That was not in the death... That's 924J.

[00:10:03] Speaker 02:
That's 8.

[00:10:04] Speaker 02:
I'm sorry, that was Count 8.

[00:10:06] Speaker 04:
For Counts 6 and 7, which is the predicate, it charged a knowing murder.

[00:10:10] Speaker 04:
It didn't charge premeditation, and that's why it's not first degree murder.

[00:10:14] Speaker 02:
But it's based on... I'm sorry, mixed up the counts.

[00:10:18] Speaker 02:
But Counts 6 and 7

[00:10:22] Speaker 02:
reference or specifically alleged murder under California Penal Code section 187, 188, 189, and 31 to 33, correct?

[00:10:31] Speaker 04:
So the Vicar murder counts charged in the language of the Vicar statute.

[00:10:35] Speaker 04:
So they charged murder in violation of the California statutes.

[00:10:39] Speaker 04:
Our argument, in line with the Fourth Circuit's argument, is that the text of the Vicar statute requires both elements.

[00:10:46] Speaker 04:
It requires the generic federal offense.

[00:10:49] Speaker 04:
And we believe that's supported by Supreme Court case law.

[00:10:52] Speaker 02:
But if the case had gone to trial on these counts, you would have had to prove up the elements of 187, 188, or whatever.

[00:11:00] Speaker 04:
That's because the government believes both elements need to be proved.

[00:11:03] Speaker 02:
So the government believes that both... So at trial you would have had to prove both?

[00:11:07] Speaker 02:
Murder under 1111 and murder under 187, 188, and 189?

[00:11:14] Speaker 04:
It's not 1111 by itself.

[00:11:16] Speaker 04:
We argue you have to prove federal generic murder, which we agree is equivalent, which we say is equivalent to 1111 murder.

[00:11:23] Speaker 04:
But it's not 1111 murder.

[00:11:25] Speaker 01:
Do you have any evidence that that's the position the government took in the related cases?

[00:11:31] Speaker 01:
In the related cases, the co-defending cases.

[00:11:34] Speaker 04:
So the jury instructions, the defendant is bringing up the jury instructions in those related cases for the first time, but those jury instructions would have needed to allege the state law violation because the government's position is that you have to prove both.

[00:11:47] Speaker 01:
But I understand they would have needed to show the state, but your argument turns on also needing to show the federal version.

[00:11:56] Speaker 01:
And I think in this case, specifying the mens rea of depraved heart recklessness or greater.

[00:12:03] Speaker 01:
So is there anything you can point to in the record that shows that that's what the government either would have

[00:12:09] Speaker 01:
proven in this case, or at least would have proven in the co-dependent cases.

[00:12:13] Speaker 04:
Your Honor, let's look at the indictment and the plea colloquy here.

[00:12:16] Speaker 04:
The plea colloquy here did not talk about California law at all.

[00:12:20] Speaker 04:
Now, there's not one word.

[00:12:22] Speaker 04:
It doesn't talk about implied malice.

[00:12:23] Speaker 02:
But he pled to count eight, correct?

[00:12:28] Speaker 04:
Yes.

[00:12:29] Speaker 04:
He pled guilty to count eight.

[00:12:30] Speaker 02:
And count eight, you have to go back.

[00:12:31] Speaker 02:
And then you have to go back.

[00:12:33] Speaker 02:
Do you have to do the analysis?

[00:12:35] Speaker 02:
You have to step back and then step down?

[00:12:37] Speaker 04:
You absolutely do.

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

[00:12:39] Speaker 04:
And because you have to go back, you have to look at the Vicar counts.

[00:12:43] Speaker 04:
Counts 6 and 7 charged the Vicar offense by a generic federal murder and the violation.

[00:12:50] Speaker 04:
It did it by using the words of the Vicar statute.

[00:12:53] Speaker 04:
The words of the Vicar statute, they named the enumerated offense, murder, maims, assaults, in violation of state law.

[00:13:01] Speaker 01:
The problem here is it's not specified.

[00:13:05] Speaker 01:
That's why we have different courts coming out different ways.

[00:13:08] Speaker 01:
But I think the problem here is that the government, as far as I can tell, never represented specifically that they were showing malice of forethought.

[00:13:15] Speaker 01:
They could prove malice of forethought as defined under the federal generic or statutory definition.

[00:13:20] Speaker 01:
They just referred to malice of forethought generally and referred specifically to the California law, which has a broader definition of malice of forethought, includes implied malice of forethought.

[00:13:31] Speaker 01:
So I think there's an ambiguity here, and I have the government hear you saying, well, now we think that Vicar should be interpreted more narrowly as requiring proof of both the federal generic crime and

[00:13:43] Speaker 01:
the state law predicate, but I'm looking for evidence that that's actually specifically and expressly the position that the government took either in this case or the code of end cases or really any vicar case in the Ninth Circuit ever.

[00:13:56] Speaker 04:
Well, Your Honor, in terms of this case, it's up to the defendant to bring up these arguments.

[00:14:00] Speaker 04:
The defendant didn't raise the mens rea challenge below.

[00:14:03] Speaker 04:
So these issues are not teed up in exactly the way they would be otherwise because of the defendant's defaults, which this court has to look very seriously at, as we said in our brief.

[00:14:13] Speaker 04:
But if you do just look at the records, you have an indictment that charges in the words of the Vicar statute.

[00:14:18] Speaker 04:
If you look at Nardello and Shidler from the Supreme Court.

[00:14:21] Speaker 02:
Let me ask you this.

[00:14:22] Speaker 02:
Which paragraphs are you specifically referring to?

[00:14:24] Speaker 04:
In the record, it's at 2 er 196 to 197.

[00:14:28] Speaker 04:
Well, what paragraphs?

[00:14:33] Speaker 04:
I'm sorry.

[00:14:33] Speaker 04:
I left it behind, but it's count six and seven.

[00:14:36] Speaker 04:
It's the indictment counts for six and seven that use just the words of the vicar statute.

[00:14:42] Speaker 04:
And we think that the words of the vicar statute.

[00:14:44] Speaker 02:
Let's start trying to figure out which are the words of the vicar statute that you're talking about, because all it says is the defendants, Elmore,

[00:14:51] Speaker 02:
and heard, each aided and abetted by the other, unlawfully and knowingly did murder Adrian Hilton in violation of California Penal Code sections 187, 188, 189, and 31 to 33.

[00:15:03] Speaker 02:
Right, Your Honor.

[00:15:06] Speaker 04:
So just if you look at Nardello, for example, the same stretcher, Nardello and the Supreme Court.

[00:15:10] Speaker 04:
There it said, extortion, bribery, or arson in violation of the laws of the state.

[00:15:15] Speaker 04:
And the Supreme Court said that required both the proof of the generic crime and a violation of state law.

[00:15:22] Speaker 04:
Same thing happens in Shiler, where they're interpreting 1961, the RICO statute, extortion, which is chargeable under state law.

[00:15:29] Speaker 01:
If we had, if we were, if we, if this case was coming in the posture of

[00:15:35] Speaker 01:
What was the government required to convict?

[00:15:38] Speaker 01:
And you were taking the position that you're taking now, right?

[00:15:41] Speaker 01:
I think we would be squarely addressing that question.

[00:15:44] Speaker 01:
The problem is I don't see evidence that that was the position that the government took when it was seeking a conviction of the defendant.

[00:15:52] Speaker 04:
But Your Honor, for the plea colloquy, California murder isn't even mentioned.

[00:15:59] Speaker 04:
187, 188, 189, they're not mentioned.

[00:16:01] Speaker 04:
Implied malice isn't mentioned.

[00:16:03] Speaker 04:
It's charged in the plea colloquy.

[00:16:05] Speaker 01:
Right, but the cross-reference back is to the count in the charging document.

[00:16:08] Speaker 04:
It is, yes.

[00:16:09] Speaker 04:
And we've explained why the count in the charging document charges in the words of the statute.

[00:16:13] Speaker 04:
If you interpret the statute, that means that the indictment is the same.

[00:16:16] Speaker 04:
If I could point out two more cases, United States versus Atkins in this court,

[00:16:21] Speaker 04:
And then it cites United States versus Joseph, which is an unpublished case.

[00:16:24] Speaker 04:
So in both those cases, this court said that.

[00:16:27] Speaker 04:
that charging in terms of the generic offense is enough.

[00:16:31] Speaker 04:
Now, while this court doesn't decide the issues here, it shows that this court has put emphasis on the generic element.

[00:16:38] Speaker 01:
But we said it permissively.

[00:16:39] Speaker 01:
You can use the federal generic, but you might want to use the state law predicate.

[00:16:44] Speaker 01:
So I don't see anything saying that the government always must prove all the elements of the federal generic.

[00:16:49] Speaker 01:
And I don't see anything in this record indicating that that is, in fact, what the government was representing it was going to do here.

[00:16:56] Speaker 04:
Well, Adkin said that you needed to do the state law violation in that case because it was narrower.

[00:17:05] Speaker 04:
But this court does need to, even if it hasn't been raised before, this court needs to interpret the statute.

[00:17:11] Speaker 04:
There's not a default by the government below.

[00:17:14] Speaker 04:
It's up to the defendant to raise these challenges, especially on collateral review, the extraordinary remedy of collateral review.

[00:17:20] Speaker 04:
There's a very high burden, and the defendant has the burden to show prejudice.

[00:17:25] Speaker 00:
How does Pinkerton bear upon your analysis?

[00:17:28] Speaker 00:
Because opposing counsel relied on Pinkerton.

[00:17:32] Speaker 04:
Pinkerton doesn't at all.

[00:17:34] Speaker 04:
Under this court's case law, United States versus Henry, Pinkerton liability is just another way of proving substantive guilt of the charge.

[00:17:42] Speaker 04:
So the charge here, the underlying charge is substantive vicar murder, and that was proved.

[00:17:47] Speaker 04:
The defendant admitted the liability for that.

[00:17:49] Speaker 04:
So we know that that was the case.

[00:17:53] Speaker 04:
Either way, this court

[00:17:56] Speaker 04:
it believes that these issues were preserved.

[00:17:58] Speaker 04:
It still has to look at cause and prejudice.

[00:18:01] Speaker 04:
It has to look at actual innocence.

[00:18:03] Speaker 04:
For actual innocence, it needs to look at the more serious or equally serious charges.

[00:18:08] Speaker 04:
The Sixth Circuit just yesterday held that

[00:18:11] Speaker 04:
The Boozley exception for actual innocence extends to equally serious charges as well.

[00:18:16] Speaker 04:
The Seventh Circuit has already held that.

[00:18:18] Speaker 04:
I also don't believe that there's any circuit split on this.

[00:18:20] Speaker 04:
The Fourth Circuit has clearly held that you need a federal generic offense element and another one.

[00:18:27] Speaker 04:
The Second Circuit has not held to the contrary.

[00:18:29] Speaker 04:
In cases where the government can rely on the state law element, courts rely on the state law element,

[00:18:35] Speaker 01:
If hypothetically we were to hold squarely that we agree with the Fourth Circuit's interpretation of Vicar and that it requires the government to prove both the federal generic and the state law predicate, the elements of both, and if they don't overlap, they have to prove all of them, would that have implications for past Vicar convictions that didn't meet that standard?

[00:19:03] Speaker 04:
It would depend, Your Honor, on each case.

[00:19:06] Speaker 04:
You'd have to see whether the jury instructions were sufficient in other ways, whether the defendant preserved the challenges.

[00:19:11] Speaker 04:
So we're just looking at the statute and interpreting it how we think that the words require.

[00:19:16] Speaker 04:
And just the words of the statute, especially when you see what the Supreme Court has done interpreting very structurally similar statutes, requires both elements.

[00:19:40] Speaker 03:
Well, okay then, if this court adopts the Fourth Circuit position, I have a lot of work to do on my prior Vicar murder cases going back 21 years.

[00:19:49] Speaker 03:
So that would be exciting for all of us, which I think will be a problem for the government going forward in every pending Vicar murder case in the Ninth Circuit, certainly in California.

[00:20:02] Speaker 03:
I want to look briefly in rebuttal at this court's model jury instructions for Vicar, which very specifically use the or and say that what should be charged in the jury instruction, when it says, you know, the defendant is charged in count blank with doing, committing, attempting, conspiring, a crime of violence specifically brackets specify the crime.

[00:20:29] Speaker 03:
And that's what the courts have been doing for all this time, is they specify the crime, and that is what the government does when they submit their proposed jury instructions.

[00:20:39] Speaker 03:
And this is the understanding which is supported by the Shepard documents.

[00:20:43] Speaker 03:
I mean, I don't really need to go to the understanding.

[00:20:46] Speaker 03:
to say that the language in the plea colloquy and the language in the indictment is based on California law because it does not match the jury instruction for 1111.

[00:20:58] Speaker 03:
Yes.

[00:20:59] Speaker 02:
Let me just, I want you to finish your point.

[00:21:01] Speaker 03:
I understand the government's argument that somehow there's an overlay of a generic crime.

[00:21:06] Speaker 02:
You had referenced in your opening argument the subsequent cases that actually went to trial.

[00:21:12] Speaker 03:
Yes.

[00:21:13] Speaker 02:
And was there an instruction about generic murder?

[00:21:19] Speaker 03:
Not that I found.

[00:21:20] Speaker 03:
I did that this morning again in my hotel and I don't want to represent that I did an

[00:21:27] Speaker 02:
Or an instruction regarding a murder under 1111?

[00:21:33] Speaker 03:
The way the instructions were organized that I saw this morning, again, was that they basically had the jury instruction for murder for purposes of RICO, right?

[00:21:43] Speaker 03:
So for a RICO predicate, they said, this is what a murder is, and it used the California language.

[00:21:48] Speaker 03:
And in the proposed instructions, they referenced CalGIC and all of that, which is the normal thing that is done in these cases.

[00:21:54] Speaker 03:
And I have 20 seconds.

[00:21:56] Speaker 03:
But the, now I lost my thought.

[00:22:03] Speaker 03:
I'm sorry, Your Honor, I lost it.

[00:22:04] Speaker 01:
I'll give you an extra minute to answer the question.

[00:22:06] Speaker 03:
Yeah, but I've lost my thought.

[00:22:07] Speaker 02:
I was curious whether or not they instructed on generic murder or murder under 1111.

[00:22:13] Speaker 03:
All I saw that they did for the Vicar was reference back to the RICO instruction.

[00:22:18] Speaker 03:
So there wasn't a separate Vicar murder instruction.

[00:22:22] Speaker 03:
It was, here's what Vicar is, and for purposes of determining what murder is, look back at our murder instruction for the RICO predicament.

[00:22:28] Speaker 02:
Which was based on California law.

[00:22:31] Speaker ?:
Yes.

[00:22:31] Speaker 03:
I mean, I see nothing in the record that suggests that the government's argument was extant at the time of any of the trials or pleas in this case.

[00:22:40] Speaker 01:
And do you assume then that I also included the California definition of malice aforethought?

[00:22:45] Speaker 03:
Or implied malice, which is what was in the instructions.

[00:22:48] Speaker 03:
Yes, implied malice, which as you know, I've got details in the brief about what implied malice under California law looks like, which is far broader than depraved heart.

[00:22:57] Speaker 03:
Thank you, Your Honor.

[00:22:58] Speaker 01:
Thank you.