[00:00:00] Speaker 03: 22-2147, United States versus Barnes. [00:00:04] Speaker 03: Counsel for Appellant, if you would make your appearance and proceed, please. [00:00:11] Speaker 04: Yes, Your Honor. [00:00:12] Speaker 04: Good morning. [00:00:12] Speaker 04: Good morning. [00:00:13] Speaker 04: Martin Pincus from the Federal Public Defender, and I represent Stetson Barnes. [00:00:18] Speaker 04: I want to focus this morning on the issue of self-defense on the kind of carjacking resulting in death. [00:00:23] Speaker 04: There was proof here both that Mr. Barnes withdrew from the carjacking and that the danger from it had dissipated so that his right to self-defense was restored. [00:00:33] Speaker 04: The district court therefore erred in not instructing the jury on self-defense on the carjacking count. [00:00:40] Speaker 04: The government does not deny that there was evidence that Mr. Barnes communicated his intent to withdraw to Mr. Swenson. [00:00:47] Speaker 04: Instead, it argues that as a matter of law, [00:00:50] Speaker 04: Mr. Barnes did not in fact withdraw when Mr. Swenson went back in the house, and that is wrong. [00:00:56] Speaker 04: Mr. Barnes and Ms. [00:00:57] Speaker 04: Hedgecock both put their guns away. [00:01:00] Speaker 04: They seemed largely indifferent on the video to what Mr. Bush was doing, and the jury could easily have found that they were just waiting for Mr. Terrell so that they could leave. [00:01:11] Speaker 02: Well, the issue isn't whether they were still engaged in violence. [00:01:16] Speaker 02: The issue is whether they were still engaged in the crime. [00:01:19] Speaker 02: And the crime here is carjacking. [00:01:22] Speaker 02: And they hadn't loaded the motorcycle yet. [00:01:26] Speaker 02: And they stayed there, continued loaded the motorcycle, and then left. [00:01:30] Speaker 04: Well, they didn't load the... The motorcycle was not loaded at the scene. [00:01:34] Speaker 02: Well, they pushed it down. [00:01:36] Speaker 04: Well, not they. [00:01:37] Speaker 04: Mr. Bush, he tried to start it. [00:01:40] Speaker 04: Mr. Barnes and Ms. [00:01:43] Speaker 04: Hedgecock were standing by the truck, occasionally looking at him, but mostly not, looking mostly at the carport where Mr. Turrell was. [00:01:51] Speaker 04: And Mr. Bush eventually pushes, he's unable to start the bike, and he pushes it down the driveway and off the property. [00:01:57] Speaker 04: Now, Mr. Turrell does at one point come out of the carport [00:02:01] Speaker 04: on the video and walk over to where Mr. Bush was and is there for about 30 seconds. [00:02:07] Speaker 04: It's too dark to see what was going on. [00:02:09] Speaker 04: There's not evidence about what was happening at that point. [00:02:12] Speaker 04: But he then saunters back and goes kind of towards the truck and then goes back into the carport, stays there for another 20, 30 seconds, finally comes out. [00:02:24] Speaker 04: By this point, by the time they all get in the truck, Mr. Bush is off the scene. [00:02:31] Speaker 04: And the motorcycle is off the property. [00:02:34] Speaker 04: If there was a carjacking going on at that point, which again is when Mr. Swenson opened fire, it was not anything on site. [00:02:42] Speaker 04: It was not anything done by the people still at the house. [00:02:46] Speaker 04: It was Mr. Bush who was off the property with the bike, taking the bike, if that is carjack. [00:02:53] Speaker 02: Well, they took the bike. [00:02:57] Speaker 02: It's a taking of the bike. [00:02:59] Speaker 02: I don't see anything in the statute that requires that your crime all occur at the site. [00:03:07] Speaker 02: I mean, if you push the car down the road a little bit and then you jump start it and steal it, I mean, [00:03:13] Speaker 02: How is that different? [00:03:15] Speaker 04: Well, it may be that it goes on for some time, at least until you, as the government puts it, reach a point of relative safety. [00:03:22] Speaker 04: There's no indication here that there wasn't a point of relative safety by Mr. Bush at that point. [00:03:26] Speaker 04: He's offsite. [00:03:27] Speaker 04: We don't have video of what was going on. [00:03:30] Speaker 04: And certainly to Mr. Swenson, he doesn't know what was going on. [00:03:33] Speaker 04: And more importantly, Mr. Barnes, Ms. [00:03:36] Speaker 04: Hedgecock, Mr. Turrell are all still at the scene. [00:03:38] Speaker 04: And when I said if this is carjacking, I was referencing our first argument, which we also contend we should get relief on as to both the conspiracy and the substantive count, that one cannot [00:03:50] Speaker 04: carjack their own car or vehicle or what they in good faith believe to be their own, nor can they do so if they're helping somebody who's retrieving his or her own vehicle or something that that person believes in good faith. [00:04:05] Speaker 04: the person who's helping believes in good faith is that person's vehicle. [00:04:09] Speaker 02: Well, and you would agree, would you not, that section 2,119 doesn't include, or maybe I need my glasses because I'm reading them. [00:04:18] Speaker 02: Yeah, 2,119. [00:04:20] Speaker 02: That it doesn't include a specific intent like the common law. [00:04:26] Speaker 04: It does not include an intent to deprive. [00:04:31] Speaker 04: There's now a specific intent in the carjacking statute, but it's a different specific intent. [00:04:34] Speaker 04: It's the intent to kill or cause serious bodily injury that the Supreme Court in Holloway said can be a conditional intent. [00:04:42] Speaker 04: It doesn't contain on its own an intent to deprive the owner of the vehicle of the property. [00:04:52] Speaker 04: But that flows, and I'll touch on this and then hopefully get back to the self-defense. [00:05:00] Speaker 04: The notion that it has to be somebody else's vehicle and it has to partake of stealing is reflected in this court's decision in both Garulli and Payne. [00:05:10] Speaker 04: In Garulli, this court identified the conduct for carjacking to be the taking of a vehicle, but when it then later spoke of it, it tied it to the victim's vehicle. [00:05:20] Speaker 04: It said the prohibited conduct was, quote, acquiring possession or control of the victim's vehicle by force or violence or by intimidation. [00:05:28] Speaker 04: And pain is consistent with that. [00:05:29] Speaker 03: And as a matter of fact, wasn't it the victim's vehicle? [00:05:32] Speaker 03: It was. [00:05:33] Speaker 03: All right, then. [00:05:34] Speaker 03: I mean, were we necessarily stating a proposition of law that has universal application there? [00:05:39] Speaker 03: I mean, the statute speaks for itself as to what it says. [00:05:42] Speaker 04: Well, I think this court, it's reasonable to read this court's statements there as, in fact, saying something that does state a proposition. [00:05:51] Speaker 04: Because earlier, it had defined it as taking a vehicle. [00:05:55] Speaker 04: And then it specifically put the prohibited conduct [00:05:58] Speaker 04: in the context of the victim's... Of the facts of this case, which is the victim, right? [00:06:04] Speaker 04: It was the facts of that case, yes. [00:06:05] Speaker 02: And we also said in Gruley that the subjective motivation in acquiring possession of controlling the victim's vehicle is irrelevant. [00:06:17] Speaker 04: I don't know if that was Geruli or pain. [00:06:20] Speaker 04: Pain certainly says that. [00:06:23] Speaker 04: Geruli may reference pain, but pain in saying that was making the point that it doesn't have to be a permanent deprivation, that any deprivation [00:06:34] Speaker 04: any infringement will do. [00:06:37] Speaker 02: Well, Grule argued, you know, I was just going to use it as a getaway car. [00:06:44] Speaker 02: I didn't have any intent to keep it. [00:06:48] Speaker 02: And we said that doesn't matter. [00:06:50] Speaker 02: And when in Grule, they actually [00:06:53] Speaker 02: cite the elements of the carjacking statute. [00:06:57] Speaker 02: There's nothing in there about that you have to have intended to steal it. [00:07:06] Speaker 04: It's certainly true that a common law [00:07:09] Speaker 04: It had to be the felonious taking or the taking with the intent to permanently deprive and had to be the property of another. [00:07:17] Speaker 04: Those are elements that are not specifically in this statute. [00:07:21] Speaker 04: And Carter versus the United States, the carjacking, the bank robbery case that we cite in a footnote in the reply brief does make the point that [00:07:31] Speaker 04: the importation of the common law is kind of a term by term analysis. [00:07:39] Speaker 04: And so we're relying, as we did in the open brief, on the taking element. [00:07:43] Speaker 04: But our point now is that the taking element is infused by [00:07:50] Speaker 04: Guruli, Payne, where, again, they talk about the stealing of the car, the motive for the stealing of the car. [00:07:57] Speaker 04: And one doesn't be irrelevant, and one doesn't steal one's own car. [00:08:02] Speaker 04: And it's the same in Holloway, where the Supreme Court used stealing a couple of paragraphs after putting it in terms of taking. [00:08:13] Speaker 04: And they could easily have said taking if they wanted to, but they actually used stealing. [00:08:17] Speaker 04: Now, again, that was the facts of that case as well. [00:08:20] Speaker 04: But I think that it shows that it confirms what the common sense proposition is, which is that one can't steal their own car. [00:08:30] Speaker 04: And that is reflected further by the purpose of the statute. [00:08:35] Speaker 04: The carjacking provision was added as part of an anti-car theft act. [00:08:40] Speaker 03: And this common law related argument that you're making, and I do want to get back to your self-defense position, but this common law related argument that you're making, that argument, [00:08:50] Speaker 03: Did you make that in the district court? [00:08:53] Speaker 03: We argued that the taking element wasn't satisfied. [00:08:56] Speaker 03: Well, no, no, no. [00:08:57] Speaker 03: This importation of the common law as justifying and supporting your argument that in a situation where one says that they don't own the vehicle, you don't satisfy the elements of the offense. [00:09:09] Speaker 03: That argument. [00:09:10] Speaker 03: The exact argument you're making now [00:09:13] Speaker 03: On appeal, did you make that argument in the district court, and if so, where? [00:09:17] Speaker 03: I'm not sure that we did. [00:09:19] Speaker 04: I know the government hasn't argued that we didn't make the common law argument. [00:09:22] Speaker 03: I hear you, but that's not what I asked. [00:09:24] Speaker 04: I know it's not, but there can be a waiver of the waiver, or a waiver of the forfeiture. [00:09:29] Speaker 04: Maybe a forfeiture or a forfeiture, I don't know. [00:09:32] Speaker 04: Yeah. [00:09:34] Speaker 04: And again, what we're arguing, given Carter versus the United States, is a little bit different, which is that it's [00:09:42] Speaker 04: Yes, there is some indication in the common law from Blackstone that taking is about how this can be negated by a good faith belief. [00:09:54] Speaker 04: And Blackstone talks about taking and feloniously and intent to deprive a separate. [00:10:00] Speaker 04: But mostly it's how this court has, this court and the Supreme Court have spoken about the taking element and how that is [00:10:12] Speaker 04: reflects that you can't steal your own property, so therefore the fact that you in good faith believe it's your property would negate the mental state, and if it is your property, [00:10:25] Speaker 04: it's not carjacking at all, and that is consistent with the common law. [00:10:28] Speaker 03: So that's more what we're arguing right now. [00:10:30] Speaker 03: May I shift you for a second to the self-defense argument then? [00:10:33] Speaker 03: You were talking about the sort of factual basis for whether there was an argument for the self-defense and whether that you could have asserted it. [00:10:41] Speaker 03: The government also makes sort of a categorical legal argument to the effect that self-defense is not a viable defense. [00:10:48] Speaker 03: in the context of the carjacking statute resulting in death. [00:10:54] Speaker 03: And I'd like to hear you, why isn't that reasonable? [00:10:59] Speaker 03: Why isn't it correct, more to the point? [00:11:03] Speaker 03: And particularly, if you would address the analogy, I think the government makes the 924C in terms of talking about that statute. [00:11:15] Speaker 03: I don't have in mind exactly what the reference to 924C is. [00:11:18] Speaker 03: I may be misremembering, but let's talk about specifically their point that it's not a viable defense, period. [00:11:27] Speaker 04: Well, what I understand them to be arguing is that while the carjacking is underway and while it's still ongoing, you can't have self-defense. [00:11:37] Speaker 04: And what we're saying is he had withdrawn from it [00:11:41] Speaker 04: the danger from the carjacking at the house had dissipated, there was not at the house an ongoing carjacking. [00:11:48] Speaker 04: Anything that was happening with respect to the carjacking was happening offsite. [00:11:51] Speaker 04: It was happening by Mr. Bush. [00:11:53] Speaker 04: It wasn't happening by Mr. Barnes or anybody with him at the house. [00:11:59] Speaker 03: I'm sorry to cut you off, but there are two discrete things that one could be arguing here. [00:12:03] Speaker 03: One is that on the facts that are here, [00:12:07] Speaker 03: they do not either justify self-defense instruction or not. [00:12:12] Speaker 03: That's one argument. [00:12:13] Speaker 03: The other is you aren't entitled to any, under any set of facts, you are not entitled to a self-defense instruction. [00:12:20] Speaker 03: This statute does not allow for a self-defense defense. [00:12:26] Speaker 03: I understood the argument that the government to be making that argument, too. [00:12:29] Speaker 03: And that's the one I'm asking you to respond to. [00:12:31] Speaker 04: And I understood it to be that it has to have the carjacking be ongoing. [00:12:36] Speaker 04: And my point is that the carjacking certainly at the House is not ongoing. [00:12:39] Speaker 03: Well, that goes to the facts of this case and whether, in fact, the facts would justify the defense, right? [00:12:45] Speaker 04: No, because I think if, for example, this was the next day, you couldn't say, well, Swenson could shoot somebody who had been involved in the carjacking. [00:12:55] Speaker 04: Our point is that there is a basis for the jury to believe that the carjacking at the house had ended. [00:13:01] Speaker 04: He had withdrawn from it. [00:13:02] Speaker 04: If there was anything going on at the carjacking, anything that allowed Mr. Swenson to use force, it was as to Mr. Bush off the property. [00:13:09] Speaker 04: It wasn't as to Mr. Barnes. [00:13:12] Speaker 03: and the people with him at the house. [00:13:14] Speaker 03: There's a basis for the jury to believe that the action was in self-defense. [00:13:19] Speaker 03: Therefore, I would have been entitled to a jury instruction. [00:13:23] Speaker 03: That's one theory. [00:13:24] Speaker 03: The point I'm making is, aren't there certain statutes that you just aren't entitled to a self-defense instruction too? [00:13:31] Speaker 03: If the carjacking were still ongoing, he couldn't argue self-defense. [00:13:34] Speaker 03: That goes to the facts of what was going on here. [00:13:37] Speaker 03: I'm saying that just by virtue of the nature of resulting in death, that this statute did not permit, period, a self-defense instruction. [00:13:47] Speaker 03: It was not a viable instruction in the context of what that statute [00:13:52] Speaker 04: But I think it has to be while the carjacking is going on. [00:13:56] Speaker 04: And there was nothing at the house about an ongoing carjacking. [00:14:00] Speaker 04: And that's where the force was used and that's when it was used. [00:14:03] Speaker 04: And that's why [00:14:05] Speaker 04: the dissipation of the danger and the withdrawal go kind of hand-in-hand with the availability of the defense. [00:14:12] Speaker 04: So we would add, and when the jury was, because there was evidence, sufficient evidence of withdrawal and dissipation of the danger, the court should have instructed on self-defense as it did on count five with the 924C and 924J on which the jury hung. [00:14:30] Speaker 04: And we'd ask the court to vacate Mr. Barnes' conviction on [00:14:34] Speaker 04: the carjacking count and for the other reasons about the fact you can't carjack your own car on that count and the conspiracy count as well, and I'll save the remaining 15 seconds. [00:14:45] Speaker 04: Thank you. [00:14:46] Speaker 04: Thank you. [00:14:52] Speaker 00: Good morning, Your Honors. [00:14:54] Speaker 00: May it please the Court, my name is Amal Keeney and I'm with the U.S. [00:14:58] Speaker 00: Attorney's Office in Albuquerque. [00:15:00] Speaker 00: And I'll start by addressing the self-defense claim, unless you want to go to the first claim. [00:15:06] Speaker 03: I'm all about self-defense. [00:15:07] Speaker 03: And if you would explain to me, am I remembering? [00:15:10] Speaker 03: I thought you made a 924C analogy in your brief in terms of supporting the view that self-defense is not a viable defense to this statute. [00:15:20] Speaker 00: That's correct. [00:15:21] Speaker 00: We cited the case of United States versus Johnson from this court, in which that was the case where these gentlemen defendants were [00:15:30] Speaker 00: had a drug operation going in rural Oklahoma, and they had firearms with them, and they said, when federal agents approached, they said, we don't know who those guys are, so we're not using them for our drug operation, we're using them as self-defense. [00:15:47] Speaker 00: And what this court said is, [00:15:49] Speaker 00: The evidence is sufficient to show that those guns are being used for your drug operation. [00:15:56] Speaker 00: You were using them in connection with that. [00:15:59] Speaker 00: And after that, it doesn't matter why you say you used them or what was in your mind when you used them. [00:16:05] Speaker 00: You shouldn't have those at all. [00:16:07] Speaker 00: And that is the argument we're making. [00:16:08] Speaker 03: And let me play that out to make sure I understand that. [00:16:12] Speaker 03: What I understand that argument to be is a statement that because of the nature of the statute and what it penalizes, [00:16:21] Speaker 03: No set of facts would justify you under this statute to a self-defense instruction. [00:16:27] Speaker 03: I mean, that's different than saying, oh, had the danger dissipated? [00:16:32] Speaker 03: Had the crime dissipated? [00:16:33] Speaker 03: One can talk about whether a reasonable jury would find that. [00:16:36] Speaker 03: That's one argument. [00:16:38] Speaker 03: The other argument is, as in this 924C idea, I don't care why you had the gun, you could never get a self-defense instruction in that statute. [00:16:50] Speaker 03: Is that an argument that you're making? [00:16:52] Speaker 03: Because that's what I saw you to be making. [00:16:54] Speaker 00: That's correct. [00:16:54] Speaker 03: There are two discreet arguments here. [00:16:56] Speaker 00: Those are two arguments. [00:16:57] Speaker 00: We are arguing the statutory argument that you just described. [00:17:00] Speaker 00: And then if you didn't accept that, [00:17:03] Speaker 00: My other argument is that the evidence wasn't sufficient to support or allow the defense. [00:17:06] Speaker 02: And that argument that there's no self-defense available, defense available at all in carjacking was specifically rejected by the Fifth Circuit, wasn't it? [00:17:18] Speaker 00: Well, that wasn't the issue in the Fifth Circuit. [00:17:21] Speaker 00: We cited that in a footnote. [00:17:24] Speaker 00: The parties appear to have assumed that self-defense would be a viable defense. [00:17:29] Speaker 00: And the legal issue that we're raising here, for whatever reason, it just wasn't raised or discussed in that case. [00:17:36] Speaker 00: So what we're saying here is that once you've committed the basic elements of carjacking, what I mean by that is the elements that are in the prefatory paragraph. [00:17:48] Speaker 00: Once you've committed a carjacking, what the statute then says, if death results [00:17:55] Speaker 00: And this court has said that's a but for cause, and that's a strict liability element. [00:18:00] Speaker 00: This court said that in Lowell and with a similar statute in Moya. [00:18:05] Speaker 00: I'm sorry, Your Honor, are you? [00:18:07] Speaker 02: No. [00:18:07] Speaker 02: So I'm trying to steal a car. [00:18:10] Speaker 02: Somebody confronts me. [00:18:13] Speaker 02: I turn around and run. [00:18:14] Speaker 02: I abandon my activity. [00:18:17] Speaker 02: And they start shooting me. [00:18:20] Speaker 02: I turn around and shoot back. [00:18:23] Speaker 02: There's no possibility of a self-defense. [00:18:26] Speaker 00: No, not because that's but for causation. [00:18:30] Speaker 00: The whole reason where that person is shooting at you is because you committed a carjacking. [00:18:36] Speaker 00: You shouldn't be committing a carjacking. [00:18:38] Speaker 00: What Congress is saying here, we think, is that this activity is so dangerous that if the carjacking is a but for cause of the death, you are responsible. [00:18:50] Speaker 00: You shouldn't have been doing that in the first place. [00:18:53] Speaker 00: And I think that applies here, too. [00:18:55] Speaker 00: What we have here, I'm sorry, Your Honor. [00:18:58] Speaker 02: That would be an issue of first impression for us to decide that. [00:19:01] Speaker 00: That's correct, that precise issue. [00:19:02] Speaker 02: And that would be the first case from a circuit. [00:19:06] Speaker 02: If the Fifth Circuit didn't decide that, or actually didn't reject it, it would be the First Circuit to have ruled that. [00:19:15] Speaker 00: That's correct. [00:19:16] Speaker 00: That's correct. [00:19:16] Speaker 00: I think that's because in the vast majority of carjackings occur in situations where there's not even [00:19:23] Speaker 00: I won't say a viable or even an articulable claim of self-defense. [00:19:30] Speaker 00: So I think it's a product of the way these crimes normally occur. [00:19:33] Speaker 00: And this is an atypical carjacking. [00:19:36] Speaker 02: So if we don't go that route and we are looking at self-defense in terms of whether Mr. Barnes withdrew from the carjacking, is there a factual dispute there? [00:19:53] Speaker 02: I've watched those videos. [00:19:54] Speaker 02: It's difficult to see what's going on. [00:19:58] Speaker 02: But the argument is that he was retreating. [00:20:02] Speaker 02: He was done when he was then being shot at. [00:20:08] Speaker 02: And he responded. [00:20:10] Speaker 00: Yeah, that is his argument. [00:20:12] Speaker 00: And our argument response is a jury withdrawal isn't just [00:20:17] Speaker 00: physically starting to remove yourself from the scene. [00:20:20] Speaker 00: It's abandoning the enterprise. [00:20:23] Speaker 00: And he's not abandoning the enterprise. [00:20:25] Speaker 00: He never does anything from what the jury could say. [00:20:28] Speaker 00: Mr. Barnes is no longer committing carjacking. [00:20:34] Speaker 00: Now, he does say earlier, two and a half minutes earlier, when Mr. Swenson came out on his porch. [00:20:41] Speaker 00: You probably saw that on the video. [00:20:42] Speaker 00: He said, I told him that we would be leaving. [00:20:45] Speaker 00: But he makes no move to leave. [00:20:48] Speaker 00: And Mr. Bush, his co-conspirator, goes right back to starting to try to take the motorcycle again. [00:20:55] Speaker 00: And then after they leave, after the truck leaves, the Barnes and the other two leave, they circle around and take the motorcycle. [00:21:04] Speaker 00: Mr. Barnes, and he admitted this in his testimony, said, we got out and loaded up the motorcycle. [00:21:10] Speaker 00: If he's not committing the carjacking, he would have said, [00:21:13] Speaker 00: I'm not part of this anymore. [00:21:14] Speaker 00: I'm not helping anyone. [00:21:15] Speaker 00: I'm not doing any of this. [00:21:16] Speaker 00: And then they took it back to his house and left the motorcycle there. [00:21:20] Speaker 00: So he's providing a place to keep the motorcycle afterward. [00:21:23] Speaker 00: At no stage does he abandon the enterprise. [00:21:26] Speaker 00: And no jury could reasonably fight that. [00:21:28] Speaker 00: That's our position. [00:21:33] Speaker 00: Okay, I thought you were going to ask me something more. [00:21:35] Speaker 00: On the, I'm sorry, the taking element claim, ownership of the vehicle is not relevant to the taking element. [00:21:47] Speaker 00: What this court and other courts, and we've cited a number of other circuits, when they talk about the taking element, they refer to it as the physical acquisition of control over the vehicle, where [00:22:01] Speaker 00: intent comes in where Mr. Barnes' beliefs about ownership of the vehicle comes in, it's relevant to the intent element, to the conditional intent element. [00:22:11] Speaker 00: And the reason for that is because it's unlikely, if he did believe that, look, we have permission to go take this bike and it belongs to my friend Mr. Bush, [00:22:21] Speaker 00: It's unlikely that someone in that situation would be contemplating that they're going to use violence and need to kill or hurt someone to take the motorcycle. [00:22:33] Speaker 00: And the district court instructed the jury on that defense. [00:22:37] Speaker 00: If you look at volume one of the record, page 854, the jury was instructed that Mr. Barnes' defense, [00:22:48] Speaker 00: is because he did not know the other participants were taking the motorcycle without permission or might take the motorcycle by force and violence or intimidation, he didn't commit carjacking, conspiracy, and so forth. [00:23:02] Speaker 00: And then in the last paragraph of that instruction, it says, if you find that defendant Barnes did not knowingly or intentionally join any conspiracy to commit carjacking, you must find him not guilty of counts one, two, and five. [00:23:16] Speaker 00: So he received that defense. [00:23:18] Speaker 00: The jury didn't accept it. [00:23:20] Speaker 00: So even if there were some doubt in your minds about the meaning of the taking element, [00:23:26] Speaker 00: It doesn't matter, because the jury didn't buy his defense to begin with. [00:23:30] Speaker 00: And we know that, because it found him guilty of count one. [00:23:39] Speaker 00: Unless the court has any other questions, that's really all I had to say about the taking claim, too. [00:23:46] Speaker 00: And if you have a doubt about everything I've just said about the taking element, [00:23:53] Speaker 00: He actually waived this claim too, because during the jury instruction conference he said, I don't like the law, but this instruction is clear and I don't object. [00:24:04] Speaker 02: Well, you know, if you just look at that statement, and you don't look at it in the context of the prior discussions on this issue, you could think that. [00:24:17] Speaker 02: But when you go back and you look, this was stated after he had made repeated objections. [00:24:23] Speaker 02: And I did not see it as a complete compitulation. [00:24:30] Speaker 02: I thought it was just saying, I've been beating my head against this brick wall for a while, and I don't have any objections to the way you have framed this instruction, and I'm going to abide by your ruling. [00:24:44] Speaker 02: I'm not sure. [00:24:46] Speaker 02: Maybe I'm being too generous, but I didn't really think there was a waiver there. [00:24:52] Speaker 00: I think that the earlier discussions of that had occurred in this court made rulings in June and August of 21 or 22. [00:25:05] Speaker 00: I forget the year in which the trial was, but it was those months. [00:25:09] Speaker 00: And then in the beginning of October, the defendant also submitted jury instructions. [00:25:17] Speaker 00: And he didn't submit a jury instruction with his taking the theory. [00:25:21] Speaker 00: He moved his defense to the intent theory. [00:25:25] Speaker 00: And this is the instruction that the district court gave that I just read from is the one, I think, almost identical to the one the defendant submitted. [00:25:34] Speaker 00: And then he made those remarks. [00:25:36] Speaker 00: I think if he had said, Your Honor, I understand you've ruled against me several times. [00:25:44] Speaker 00: I understand your view of the law, but I still object to this. [00:25:47] Speaker 00: I think he could have said that. [00:25:48] Speaker 00: But if you don't agree with me on the waiver, I think my arguments on the merits should still carry the day. [00:25:53] Speaker 02: I will take another look at it. [00:25:56] Speaker 02: When you're in trial, you always have to gauge how many times I can make the same objection to the same judge before anyone. [00:26:10] Speaker 00: That's true. [00:26:11] Speaker 00: What I would tell you is, [00:26:12] Speaker 00: My waiver argument, I can make it in good faith, but I think it's not as strong as my merits arguments, for sure. [00:26:20] Speaker 01: Counsel, before you sit down, could you address your view of the role of the common law here in the take definition? [00:26:30] Speaker 00: Well, I think the common law is kind of there. [00:26:36] Speaker 00: I quoted from Blackstone that there were some passage in there that lent support to Mr. Barnes' argument now. [00:26:43] Speaker 00: But a lot of the other treatises and sources that we've cited really refer to the intent to really refer to ownership of the property in terms of intent to steal. [00:26:55] Speaker 00: And that's the one that appears to be what the federal circuits have done as well. [00:27:00] Speaker 00: And if Congress had wanted to adopt [00:27:03] Speaker 00: the intent to steal into this statute, it could have done that. [00:27:10] Speaker 00: Because in the bank rent larceny statute, which we've cited, it's 2113B. [00:27:13] Speaker 00: The Congress refers to you can't commit this crime without it makes intent to steal or purloin an element of that offense. [00:27:21] Speaker 00: And so it could have done so here. [00:27:23] Speaker 00: So I think what Congress has done here is, certainly Congress is acting against the background of the common law. [00:27:30] Speaker 00: I think most of the common law sources support our position. [00:27:37] Speaker 00: And Congress has divided. [00:27:39] Speaker 00: I think what Congress has done here is rational. [00:27:41] Speaker 00: It's made the taking the actus reus and the intent the mens rea. [00:27:46] Speaker 00: And if that's where any beliefs about ownership or what we were thinking on our way over to Mr. Swenson's house goes with the intent element. [00:27:56] Speaker 01: Thank you. [00:27:57] Speaker 00: Unless there's any other questions, I would ask this court to affirm the judgment. [00:28:01] Speaker 03: Thank you, counsel. [00:28:01] Speaker 00: Thank you very much. [00:28:06] Speaker 03: We've got one minute. [00:28:09] Speaker 04: Thank you. [00:28:12] Speaker 04: Very briefly on Johnson's, obviously, my lack of memory in terms of that being a 924C case. [00:28:18] Speaker 04: But in that case, the offense was still ongoing. [00:28:20] Speaker 04: They were still manufacturing the drugs with the guns. [00:28:23] Speaker 04: So it was something that happened during the course of it. [00:28:26] Speaker 04: Here, if Mr. Barnes withdrew, [00:28:30] Speaker 04: and communicated that, and the danger had dissipated at the house, there was nothing ongoing about the carjacking at the house. [00:28:37] Speaker 04: And it doesn't give the right to use force against people who have withdrawn and where the danger has dissipated. [00:28:46] Speaker 03: It's all lost sight. [00:28:47] Speaker 03: But the argument was that the but for causation is what's at play here, which means that even if Mr. Barnes deemed it all to be over, [00:28:57] Speaker 03: the whole idea of the shooting, the death would not have occurred but for the initial carjacking. [00:29:05] Speaker 03: Whether one could claim the initial carjacking was over or not, the but-for causation would have resulted in the death, and that would be all that would be necessary. [00:29:14] Speaker 04: Well, if you take that logically to the extreme, it would allow Mr. Swenson to the next day to come and shoot people who had been involved in the carjacking. [00:29:22] Speaker 04: And that's clearly not right. [00:29:24] Speaker 04: So I think it has to be while the carjacking is ongoing as to the people involved. [00:29:29] Speaker 04: And if it's ongoing offsite with somebody else, force can be used there. [00:29:33] Speaker 04: But it's not foreseeable consequence of carjacking that there'd be a shooting of people who had communicated or intended to withdraw and where the danger at the place of the shooting had dissipated. [00:29:43] Speaker 04: And again, we'd ask the court to vacate both counts one and count two. [00:29:47] Speaker 04: Thank you, Mr. Pincus. [00:29:49] Speaker 04: Thank you, counsel. [00:29:50] Speaker 04: The case is submitted.