[00:00:00] Speaker 03:
Okay, if counsel are ready, let's call the second case, 22-2161, the United States of the University of Bush.

[00:00:06] Speaker 03:
Mr. Lunn, you may proceed.

[00:00:09] Speaker 02:
May it please the court?

[00:00:11] Speaker 02:
Good morning.

[00:00:12] Speaker 02:
I'd like to thank the University of Denver for having us here.

[00:00:16] Speaker 02:
My name is Bill Lund, and I represent the appellant, Alfred Bush, who's been charged among several different charges, but the most important is carjacking with intent to kill or commit serious bodily harm.

[00:00:33] Speaker 02:
The first element of a federal carjacking case is that you have a car.

[00:00:41] Speaker 02:
or that you have under the statute a motor vehicle.

[00:00:46] Speaker 02:
The carjacking statute came about in the Anti-Car Theft Act of 1992, where all references in the legislative history about the type of motor vehicle that they were covering was cars.

[00:01:02] Speaker 04:
We've got plenty of precedent saying that the

[00:01:05] Speaker 04:
the mere title of a statute or the heading of it doesn't control.

[00:01:10] Speaker 04:
And here the text talks about a motor vehicle, not a car.

[00:01:16] Speaker 04:
So even though the title would support your argument as you're making it, I think we really are forced to go into the text.

[00:01:22] Speaker 04:
Don't you agree as a matter of our normal statutory interpretation?

[00:01:26] Speaker 02:
it i don't disagree with that at all are you categorically saying that uh... a motorcycle is not a motor vehicle well i'm saying a dirt bike in this in particularly this dirt bike is not a motor vehicle which is defined in the motor vehicle act of nineteen eighty-four the nineteen ninety-two carjacking act according to the legislative history is an amendment to the motor vehicle act of nineteen eighty-four counsel where did you make that argument to the district court

[00:01:56] Speaker 02:
It was not made.

[00:01:57] Speaker 02:
This is a plain error argument.

[00:01:59] Speaker 00:
So you're on plain error.

[00:02:00] Speaker 02:
Yes, it is not made.

[00:02:01] Speaker 02:
It was forfeited.

[00:02:03] Speaker 02:
So the Motor Vehicle Act of 1984 defines a motor vehicle as a vehicle driven or drawn by mechanical powers and manufactured primarily for use on public streets, roads, and highways.

[00:02:20] Speaker 02:
So during the trial, there's very little question that this dirt bike was not a vehicle that meant that definition.

[00:02:32] Speaker 03:
In fact, that's not the definition that's included in 2119.

[00:02:38] Speaker 03:
There is no definition.

[00:02:40] Speaker 03:
There is no definition.

[00:02:41] Speaker 02:
Yes.

[00:02:42] Speaker 03:
But because it's an amendment.

[00:02:44] Speaker 03:
Nor does the statute refer to the definition that you just

[00:02:48] Speaker 02:
But it is, that's correct, but the definition is, as I said, this is an amendment to the Motor Vehicle Act of 1984, and that is the only place where, to my knowledge, it's been pointed out in this case, in the criminal statutes, the federal criminal statutes, where there is a definition of motor vehicle.

[00:03:10] Speaker 02:
And that definition, and that's in 18 U.S.C.

[00:03:13] Speaker 02:
511C, and that definition has been around for more than 60 years, as the judge in the NRAE race case points out.

[00:03:27] Speaker 02:
In this case, the government's own witness testifies, and he's the owner of Las Cruces Motorsports, that he's got the dirt bike right there in the courtroom.

[00:03:42] Speaker 02:
And he says that this dirt bike is not street legal.

[00:03:46] Speaker 02:
And he points out why it's not street legal.

[00:03:49] Speaker 02:
It doesn't have any front lights.

[00:03:52] Speaker 02:
It doesn't have headlights.

[00:03:54] Speaker 02:
It doesn't have rear lights.

[00:03:55] Speaker 02:
It doesn't have rear reflectors.

[00:03:57] Speaker 02:
It doesn't have turn signals.

[00:04:00] Speaker 02:
But the statute doesn't say a street legal vehicle.

[00:04:04] Speaker 02:
Now it doesn't say that, but it does say that it's primarily manufactured for use on public streets, roads, or highways.

[00:04:10] Speaker 02:
And he's asked, all these components are missing on this type of bike?

[00:04:17] Speaker 02:
And he answers, yes.

[00:04:18] Speaker 02:
And then they say, and that's from birth?

[00:04:20] Speaker 02:
Is that correct?

[00:04:21] Speaker 02:
He answers, correct.

[00:04:23] Speaker 02:
It's not like someone took them off.

[00:04:26] Speaker 02:
From birth, that bike never had flights.

[00:04:29] Speaker 03:
So you could have two motorcycles going down a road.

[00:04:37] Speaker 03:
One's a Kawasaki whatever, designed for street use, and the other's a dirt bike.

[00:04:44] Speaker 03:
And the dirt bike's being operated, I guess, illegally on a public street.

[00:04:50] Speaker 03:
The statute would apply to the carjacking of the Kawasaki motorcycle, but would not apply to

[00:04:59] Speaker 03:
the dirt bike and this is outside the record and anecdotally but on Saturday I was on a public highway and there was a dirt bike you know ahead of me doing wheelies and I thought well how did he know I had this case on Tuesday.

[00:05:14] Speaker 03:
But you can see where a motorcycle, one would be carjacking and one would be not.

[00:05:23] Speaker 03:
Is that right?

[00:05:24] Speaker 03:
Is that your argument?

[00:05:25] Speaker 02:
My argument is that this vehicle does not qualify as a motor vehicle under the statutory definition that's in the criminal federal statutes.

[00:05:38] Speaker 02:
And therefore, what the district court had to do

[00:05:42] Speaker 02:
was expand the statute to make it possible to try this defendant.

[00:05:52] Speaker 02:
Yes.

[00:05:53] Speaker 00:
To satisfy plainness, right?

[00:05:55] Speaker 00:
Your argument is that we have to import the definition from section 511, the vehicle primarily for use on public roads.

[00:06:03] Speaker 00:
We have to import that definition into the 2119 context.

[00:06:07] Speaker 00:
Is that your argument?

[00:06:08] Speaker 02:
Yes.

[00:06:08] Speaker 02:
And that's what the Energy Committee said in the legislative history with regard to this act.

[00:06:16] Speaker 00:
How does that satisfy plainness?

[00:06:18] Speaker 02:
It's not difficult to do.

[00:06:19] Speaker 00:
How does that satisfy the plainness problem?

[00:06:22] Speaker 02:
Because the motor vehicle definition is contained in the criminal statutes of the federal criminal statutes.

[00:06:30] Speaker 02:
It's there just as plain as day.

[00:06:33] Speaker 02:
And there's other things about this, of course, that are pointed out in Ray Ray's case.

[00:06:40] Speaker 02:
The common definition, which you find in Webster's dictionary, not Black's law dictionary that nobody uses other than maybe a few lawyers,

[00:06:51] Speaker 02:
defines a motor vehicle as something that's for use on highways.

[00:06:58] Speaker 02:
The legislative history, there's absolutely no reference to dirt bikes or airplanes or motorboats or anything of that nature.

[00:07:07] Speaker 02:
It primarily deals with cars and other vehicles that are primarily manufactured for use on highways.

[00:07:15] Speaker 02:
There are at least four federal statutes that go back to 1966

[00:07:20] Speaker 02:
The government has not pointed out any single statute that would be so expansive as to allow this vehicle to be on a road to be defined as a motor vehicle.

[00:07:33] Speaker 03:
What if an owner can add tail lights and turn signals to a dirt bike and made it street legal?

[00:07:42] Speaker 02:
I think it wouldn't be because it has to be primarily manufactured for that purpose.

[00:07:50] Speaker 02:
So the answer is that would not work.

[00:07:53] Speaker 02:
It's not primarily manufactured for that purpose.

[00:07:56] Speaker 04:
If somebody came and cut the cord to the lights on the car or took the headlights out, would that now make that car not a

[00:08:07] Speaker 02:
car into the carjacking center?

[00:08:09] Speaker 02:
Same answer.

[00:08:10] Speaker 02:
It's manufactured primarily for use on the road.

[00:08:13] Speaker 04:
So you don't look to what the object is at the moment of the infraction, you look back to how it was made maybe years earlier.

[00:08:23] Speaker 04:
That's kind of an eye.

[00:08:25] Speaker 04:
That's two, isn't it?

[00:08:26] Speaker 04:
Not really.

[00:08:29] Speaker 04:
Why wouldn't you care more about what it was like at the moment of the infraction, whether it was legal or not on the highway, if that's your argument, rather than saying, was it legal or not five years ago when it was made?

[00:08:42] Speaker 04:
Who cares?

[00:08:44] Speaker 02:
Well, because that's the way the federal criminal definition of a motor vehicle is set out in the statute.

[00:08:52] Speaker 02:
If it's primarily manufactured for use on the highways, roads, or public streets, then it qualifies.

[00:09:00] Speaker 02:
But as Mr. Butera has testified, this doesn't fit that definition.

[00:09:06] Speaker 02:
It never was manufactured for the public streets, roads, or highways.

[00:09:11] Speaker 02:
And so the district court had to expand the statute to make it possible to try this defendant.

[00:09:17] Speaker 03:
And that's the reason.

[00:09:21] Speaker 03:
Applying a textualist approach here, there are several of these related statutes that specifically import the 511 definition.

[00:09:31] Speaker 03:
Section 2119 did not.

[00:09:36] Speaker 03:
Why shouldn't we take from that lack of any textual clues that Congress wanted the narrower definition and apply a more broad definition because motor vehicle can be construed to encompass vehicles such as the

[00:09:52] Speaker 03:
the dirt bike you've shown on the posters?

[00:09:54] Speaker 02:
Well, you don't.

[00:09:56] Speaker 02:
I've cited the Dubin case.

[00:09:58] Speaker 02:
In criminal statutes, you don't expand them to try and make it seem criminal.

[00:10:03] Speaker 03:
We're not trying to expand it.

[00:10:04] Speaker 03:
We're just trying to construe what Congress intended.

[00:10:07] Speaker 02:
And this was pointed out by the court that did the race case.

[00:10:14] Speaker 02:
You interpret these statutes more narrowly, particularly when you're dealing with a defendant.

[00:10:19] Speaker 02:
I'd like to move on.

[00:10:22] Speaker 02:
I do think that this is, incidentally, plain error.

[00:10:25] Speaker 02:
Because by expanding a statute to make this clearly, my client was sentenced to prison for 40 years.

[00:10:32] Speaker 02:
His substantial rights were affected.

[00:10:34] Speaker 02:
And the fact that a statute has been expanded to make it fit into his case, as it did here, is an example of a situation where the integrity of the judicial system is affected.

[00:10:47] Speaker 03:
Are you aware of any other case where a dirt bike off-road vehicle was prosecuted as a carjacking?

[00:11:00] Speaker 02:
There's one, but it didn't deal with this issue either.

[00:11:05] Speaker 02:
They didn't raise the issue.

[00:11:06] Speaker 02:
There is a case called United States versus Sanders, but it said the unpublished opinion, 683 Federal Appendix 122, that this issue was not raised.

[00:11:18] Speaker 03:
Mr. Bush's co-defendant raised this issue, so not plain error, and that request was denied in the district court.

[00:11:31] Speaker 03:
Is that case on appeal?

[00:11:32] Speaker 02:
I'm not aware of that.

[00:11:33] Speaker 02:
I don't have that.

[00:11:37] Speaker 02:
I want to go to the jury instruction issue, which has to do with the addition of the paragraph.

[00:11:43] Speaker 02:
This is the entire jury instructions of 52 and 53 of the opening brief.

[00:11:48] Speaker 02:
And this is where they add language at the very end that says that in this case, carjacking with intent to

[00:12:00] Speaker 02:
kill or cause serious bodily harm, it's not necessary to prove the element of intent to kill or cause serious bodily harm.

[00:12:14] Speaker 00:
What's your standard of review on this?

[00:12:15] Speaker 02:
Is this preserved?

[00:12:18] Speaker 00:
How is it preserved?

[00:12:19] Speaker 00:
I was a little bit unclear about your argument.

[00:12:23] Speaker 02:
Yes, on page 1527, my client's attorney at the trial says, I think it would add a lot of confusion to the jury, and then when the government argues that they still won't include this paragraph that they've added to the pattern jury instruction,

[00:12:43] Speaker 02:
He says, I'd rather we not, Your Honor.

[00:12:45] Speaker 02:
Let's leave it out.

[00:12:47] Speaker 02:
And he even repeats that a second time.

[00:12:50] Speaker 02:
I'd rather we not.

[00:12:51] Speaker 02:
Let's leave it out.

[00:12:52] Speaker 00:
So I thought the government asked to separate the death results element into another direction.

[00:12:56] Speaker 02:
No, the government wanted to try to include a separate page, but they still wanted to include the page with the doctored last paragraph in it.

[00:13:07] Speaker 02:
So that's a different issue.

[00:13:09] Speaker 02:
We argued that the last paragraph shouldn't be there at all.

[00:13:11] Speaker 04:
So I'm confused.

[00:13:15] Speaker 04:
I thought that the defendant was OK with that language.

[00:13:22] Speaker 04:
I thought that at some point, they said, I'm OK.

[00:13:25] Speaker 04:
So that's just not what happened.

[00:13:26] Speaker 02:
I don't think so.

[00:13:27] Speaker 02:
I think that he did preserve it.

[00:13:30] Speaker 02:
And it allowed the government, obviously, to get in its closing arguments to argue that you don't be confused, that you have to find five elements.

[00:13:40] Speaker 02:
You don't have to find that he had the intent to kill or cause serious bodily harm.

[00:13:48] Speaker 02:
And that, of course, completely tipped this case.

[00:13:53] Speaker 02:
There is serious doubt as to whether or not the judgment can be trusted.

[00:13:59] Speaker 02:
I want to deal with the self-defense for the same reason.

[00:14:02] Speaker 02:
Self-defense instruction is something that should have been granted if you reasonably believe that there is danger of death or serious bodily harm.

[00:14:11] Speaker 02:
In this case, they have a man who has escalated

[00:14:15] Speaker 02:
this gathering in front of his house where he's pointing a gun at them.

[00:14:20] Speaker 02:
And they, in response to that, it takes them about five to ten seconds to do that.

[00:14:25] Speaker 02:
But they then, at least two of them, have guns.

[00:14:29] Speaker 02:
We're not quite certain what my client has.

[00:14:31] Speaker 02:
But that's a situation that they should have been able to get a self-defense instruction.

[00:14:38] Speaker 04:
Can you have a self-defense

[00:14:41] Speaker 04:
defense when you're the aggressor in the conflict?

[00:14:45] Speaker 04:
Well, the issue is whether he was the aggressor or not.

[00:14:48] Speaker 04:
That's not my question.

[00:14:49] Speaker 04:
That's a facture question.

[00:14:50] Speaker 04:
We'll deal with that from the record.

[00:14:52] Speaker 04:
My question is a legal one.

[00:14:53] Speaker 04:
Can you assert self-defense when you're the aggressor in the encounter?

[00:15:00] Speaker 02:
I don't think you can.

[00:15:03] Speaker 02:
I'll reserve my time.

[00:15:05] Speaker 02:
May I ask one more?

[00:15:08] Speaker 00:
Sure.

[00:15:08] Speaker 00:
I think I'm a broken record today on preservation, but I did have a question for you on the self-defense instruction.

[00:15:14] Speaker 00:
Did your client separately object, or are you relying on Mr. Barnes, your co-defendants,

[00:15:21] Speaker 00:
litigation of the self-defense instruction?

[00:15:23] Speaker 02:
Clearly Mr. Barnes, the attorney, spent the most time on it.

[00:15:27] Speaker 02:
My recollection is that he actually did chime in and say that he agreed, but I'm not.

[00:15:34] Speaker 02:
I don't recall that for certain.

[00:15:35] Speaker 02:
Okay, thank you.

[00:15:36] Speaker 03:
Mr. Malone, I'll give you 30 seconds to rebuttal.

[00:15:41] Speaker 03:
All right, let's hear U.S.

[00:15:43] Speaker 03:
Attorney Mr. Keeney.

[00:15:54] Speaker 01:
Good morning, Your Honors.

[00:15:55] Speaker 01:
May it please the Court.

[00:15:56] Speaker 01:
My name is Amel Keeney.

[00:15:58] Speaker 01:
I'm here for the United States.

[00:16:00] Speaker 01:
addressing the statutory construction issue that Mr. Dunn raised at first.

[00:16:07] Speaker 01:
I would say the statutory definition he's relying on comes from Title 49, Section 32-101.

[00:16:15] Speaker 01:
If you look at Title, that definition specifically applies to Part C, Title 49.

[00:16:22] Speaker 01:
And that contains a lot of provisions, including provisions about the labeling of

[00:16:30] Speaker 01:
vehicles, safety equipment that's to be included on certain vehicles, gathering of information about certain vehicles, and so forth.

[00:16:41] Speaker 01:
It's the kind of requirement that Congress might have thought should be included or applied to vehicles that are designed to run on public highways.

[00:16:51] Speaker 01:
Carver's Nowhere applies that definition to Section 2119.

[00:16:56] Speaker 04:
So you're understanding that the defendant is arguing that if somebody had come in and taken your license plates off the car that you wouldn't be liable if you carjacked that car because it was not legal on the highway.

[00:17:13] Speaker 01:
I mean, I would like to argue that because it's a weaker argument.

[00:17:17] Speaker 01:
I don't think that's the argument he's making because the statute he's relying on says vehicles that are designed to run on public highways.

[00:17:26] Speaker 01:
So I don't want to make a caricature of his argument.

[00:17:29] Speaker 01:
But I don't think that argument doesn't apply.

[00:17:32] Speaker 01:
I think that statute doesn't apply to Section 2119.

[00:17:35] Speaker 01:
And it makes sense that it doesn't do so.

[00:17:39] Speaker 01:
Because the requirements that Congress has in mind in Title 49, it may have had reasons for applying those requirements to certain vehicles, motor vehicles, and not others.

[00:17:52] Speaker 01:
But with respect to Section 119, what Congress is trying to do is deter a certain form of violent crime.

[00:18:01] Speaker 01:
And that doesn't depend on the sort of motor vehicle that is being taken during that crime.

[00:18:09] Speaker 01:
So it makes sense that Congress would apply a broader plain meaning definition to that.

[00:18:15] Speaker 01:
One of the things that Mr. Dennis said is that

[00:18:19] Speaker 01:
Look, Congress did intend to apply that definition to 2119 because the Anti-Car Theft Act of 1992 amended the 1984 Act where that definition is included.

[00:18:35] Speaker 01:
But it's true that

[00:18:39] Speaker 01:
The 1992 Act did amend the 1984 Act.

[00:18:42] Speaker 01:
It amended certain provisions of the Act.

[00:18:45] Speaker 01:
So if you look at Chapter 331 of Title 49, that's what's being discussed there.

[00:18:52] Speaker 01:
And it has to deal with the marking of auto parts to allow their tracing in case they're stolen.

[00:18:58] Speaker 01:
But this wasn't the only thing that the Anti-Car Theft Act did.

[00:19:03] Speaker 01:
It created 2119 out of whole cloth.

[00:19:06] Speaker 01:
So that's not an amendment.

[00:19:08] Speaker 01:
to Section 21, I mean to the 1984 Act.

[00:19:12] Speaker 01:
It also increases the statutory penalties in Section 18 USC 2312 and 2313.

[00:19:21] Speaker 01:
And those have to do with receipt of stolen motor vehicles.

[00:19:27] Speaker 01:
Those are subject to the definition of motor vehicle that's in Section 2311 of Title 18, which includes motorcycles and any sort of self-propelled vehicle.

[00:19:38] Speaker 03:
Would you be making the same argument this morning if the motor vehicle in question here was a scooter like we see on the downtown streets all the time?

[00:19:52] Speaker 01:
I think so, as long as it's self-propelled.

[00:19:55] Speaker 03:
So that included a riding lawn mower?

[00:19:57] Speaker 03:
That could be car jacked?

[00:19:58] Speaker 01:
That could be.

[00:20:00] Speaker 03:
Golf cart?

[00:20:00] Speaker 01:
Yes, as long as it's self-propelled and it has wheels, and it's designed to run on land.

[00:20:05] Speaker 03:
That's what it is.

[00:20:07] Speaker 03:
That takes me full circle to would a reasonable citizen understand that the statute prohibited taking a lawn mower or a golf cart

[00:20:22] Speaker 01:
violently you know really almost a rule of lenity argument you know what's fair what's fair notice to the defendant out there that the statute encompasses that type of behavior well i think they are all vehicle they're all real vehicles that are self-propelled those are not the typical vehicles that are subject of a carjacking that's true i think the definition does apply to them but even if you have some vehicles where you could say well it's a little bit

[00:20:52] Speaker 01:
less clear whether that definition should apply to them.

[00:20:56] Speaker 01:
What we have here is a motorcycle.

[00:20:58] Speaker 03:
Is this the only or first case where the government's prosecuted under the carjacking statute a non-street legal vehicle, whether it's a normal car, truck, or motorcycle?

[00:21:13] Speaker 01:
uh... no your honor the case that that mister uh... one right now senders from the third circuit we did although close that it was a vehicle there uh... it was a dirt bike but it didn't uh... the issue of the defendant didn't raise the issue and say what the dirt bike isn't a uh... a motor vehicle i would also point out that this issue of this claim is waived

[00:21:41] Speaker 01:
And not only did the defendant not raise it below, he's acknowledged that he's on plain-error review, but he did not acknowledge that in his opening brief, even though there's nowhere in the directed verdict motion that this was reserved.

[00:21:53] Speaker 01:
I understand this court has discretion to reach a plain-error argument anyway.

[00:21:58] Speaker 01:
But here, well, if you look at what this court did in Loeffler, in Loeffler the court said, look, we're not going to reach it, even plain argument raised in the reply, because one, it was clear that there was no preservation.

[00:22:15] Speaker 01:
This isn't a case where there's some ambiguity about it and where the benefit of the doubt would go to the defendant.

[00:22:23] Speaker 01:
And second, this is a case where we raise that issue in our answer brief.

[00:22:29] Speaker 01:
I would point out that the second thing that Lefler looked at, rather, was whether it appears to be some kind of mistake that plain error wasn't raised.

[00:22:37] Speaker 01:
If you look at the opening brief here,

[00:22:40] Speaker 01:
The opening brief cites the directed verdict argument, but it includes quoted language in support of the notion that this argument was raised that is not in the transcript anywhere.

[00:22:51] Speaker 01:
So I don't think there's a mistake here, and I don't think there was any doubt that it should have been preserved.

[00:22:57] Speaker 01:
But going on to I think the second issue the defendant raised was the jury instruction issue.

[00:23:05] Speaker 01:
That issue, we think, is

[00:23:08] Speaker 00:
Council, before you move on to that issue, I had a question about the sufficiency on conditional intent.

[00:23:15] Speaker 01:
Yes, ma'am.

[00:23:16] Speaker 00:
So how do you respond to Mr. Bush's argument that the government, you know, essentially fed language to Mr. Bush and Ms.

[00:23:26] Speaker 00:
Hedgecock when it came to words like

[00:23:29] Speaker 00:
jack, punk, f-him-up, things like that, that you attribute now to the defendant in support of satisfying conditional intent.

[00:23:35] Speaker 00:
Is that something we should be concerned about?

[00:23:36] Speaker 01:
No, Your Honor.

[00:23:37] Speaker 01:
If you look at Mr. Bush's statement, and that I think it begins in volume one around age 148, somewhere around there, it is true that the sheriff's deputy asked him whether he used that language.

[00:23:50] Speaker 01:
But Mr. Bush says yes in response to both of those questions.

[00:23:55] Speaker 01:
I think that's at page 148 and 155.

[00:23:57] Speaker 01:
There's two specific things that he's talking about, where he says that this is actually the sheriff's deputy's words.

[00:24:07] Speaker 01:
And it's true.

[00:24:08] Speaker 01:
The sheriff's deputy did ask him those questions.

[00:24:11] Speaker 01:
But Mr. Bush indicated he agreed with the sheriff's deputy.

[00:24:15] Speaker 01:
And I think it's fairly

[00:24:17] Speaker 01:
we can fairly attribute those words to him.

[00:24:20] Speaker 01:
And I'm sorry, you asked about Ms.

[00:24:21] Speaker 01:
Hedgecock as well.

[00:24:22] Speaker 01:
The plea agreement, what she testified is, yes, the government drafted the plea agreement and gave it to her, and she was cross-examined about that.

[00:24:31] Speaker 01:
We draft all of our plea agreements.

[00:24:33] Speaker 01:
And so she was cross-examined very vigorously about her credibility, and it was up to the jury to decide whether to believe her testimony or not.

[00:24:43] Speaker 01:
On the jury instruction issue that

[00:24:49] Speaker 01:
I think one of the panel members, I forget who it was, mentioned that it was the government who asked for the instruction that Mr. Bush now says should have been given.

[00:25:02] Speaker 01:
You can find that instruction in volume 1, page 569 and 70.

[00:25:08] Speaker 01:
We ask that the jury be instructed on the four basic elements of carjacking, which are found in the prefatory paragraph of the statute.

[00:25:16] Speaker 01:
And then another page asking that the jury should be instructed that if you find those four elements, then you have to decide whether there's carjacking resulted in death.

[00:25:29] Speaker 01:
Defendants all oppose that instruction.

[00:25:33] Speaker 01:
I think they've waived any claim.

[00:25:35] Speaker 04:
They opposed that, but I thought

[00:25:39] Speaker 04:
Did the defendant agree with the instruction he was given?

[00:25:43] Speaker 04:
Or did the defendant oppose that language in the instruction he was given, quite apart from the response to the government's tender?

[00:25:53] Speaker 01:
Correct.

[00:25:54] Speaker 01:
Yeah, that's the other sub-part of the claim.

[00:25:56] Speaker 01:
On the one hand, he's arguing, look, there should have been two separate instructions.

[00:26:00] Speaker 01:
They should have been separated out.

[00:26:02] Speaker 01:
And the second thing he's arguing is the but-for language just shouldn't have been given at all.

[00:26:07] Speaker 01:
He never, they never made that argument.

[00:26:09] Speaker 01:
I'm not saying they affirmatively agreed or liked that language.

[00:26:13] Speaker 01:
But they never made that argument.

[00:26:15] Speaker 01:
The whole discussion was about whether the conditional intent paragraph, there's a paragraph right before the paragraph on the but for language which explains the conditional intent argument.

[00:26:27] Speaker 01:
And they had a problem with that language.

[00:26:32] Speaker 04:
He was up here saying, we objected.

[00:26:35] Speaker 04:
The objection was not on the grounds of that disputed last sentence.

[00:26:40] Speaker 01:
Well, it's two sentences.

[00:26:41] Speaker 01:
It's the final paragraph of the instruction.

[00:26:44] Speaker 04:
And you're saying when we look at the transcript, we will agree with you that although we objected to that instruction, it was not directed to those last two sentences.

[00:26:55] Speaker 04:
That's correct.

[00:26:57] Speaker 01:
But even if he had,

[00:26:58] Speaker 01:
The but-for language comes right, the but-for language is based on this court's decision in Boel, which said that that death results element is a but-for, does require but-for causation.

[00:27:09] Speaker 01:
So if he had preserved that objection, then I think we went on the merits too.

[00:27:17] Speaker 01:
So the third,

[00:27:22] Speaker 03:
The denial of the self-defense instruction.

[00:27:24] Speaker 01:
The denial of the self-defense instruction.

[00:27:27] Speaker 01:
What we're arguing is basically two things.

[00:27:31] Speaker 01:
One, that because this is but for causation, that self-defense is not a defense to a but for causation element.

[00:27:44] Speaker 01:
Because, but for causation, as this court has said, Lowell and Moya, Congress is not concerned about why something happens.

[00:27:53] Speaker 01:
It's concerned about whether something happened.

[00:27:56] Speaker 01:
And it serves the deterrent purpose of the statute to show that

[00:28:01] Speaker 01:
If you go and commit a carjacking, then you're responsible for what the result is, no matter how it came about, even if you didn't mean it, even if someone else pulled a gun, and someone else pulling a gun, the victim pulling a gun, is one of the dangers of a robbery, that the victim is going to try to interfere or defend his or her property.

[00:28:21] Speaker 00:
that this issue is on appeal in Barnes.

[00:28:24] Speaker 00:
Is that correct?

[00:28:24] Speaker 00:
That's correct.

[00:28:26] Speaker 00:
And so are we to understand for purposes of this appeal?

[00:28:29] Speaker 00:
I mean, I always sort of understood that when we were looking at jury instructions, you were looking at them in an individualized way in the case.

[00:28:35] Speaker 00:
Right.

[00:28:36] Speaker 00:
And here, I don't see anything in the record that shows the litigation of this instruction by the defendant in this case.

[00:28:43] Speaker 00:
So are Mr. Barnes and Mr. Bush similarly situated?

[00:28:46] Speaker 00:
We shouldn't worry about that.

[00:28:46] Speaker 00:
I mean, the government doesn't point that out.

[00:28:48] Speaker 00:
I just wanted to make sure I understood why.

[00:28:50] Speaker 01:
I think this issue came up several times before trial.

[00:28:56] Speaker 01:
And during one of those discussions, Mr. Bush said that he agreed with Mr. Barnes.

[00:29:04] Speaker 01:
He didn't say that again at trial.

[00:29:06] Speaker 01:
And I did think about that issue, but I thought probably that you all would give him the benefit of the doubt.

[00:29:12] Speaker 01:
So I didn't raise a waiver argument on that point.

[00:29:15] Speaker 01:
So, but it is being litigated in Barnes this court, another panel heard argument on it in January.

[00:29:22] Speaker 01:
The other thing I would say, there is a new argument that Mr. Bush raises in his reply brief on self-defense.

[00:29:33] Speaker 01:
He says, the way it was litigated below was that, and Mr. Barnes was the primary party who litigated this, was it was being asserted as a defense to the death results element.

[00:29:46] Speaker 01:
And Mr. Barnes' argument was, look, even if you find I'm guilty of carjacking and conspiracy, I still satisfy the requirements for the self-defense as to the death results element.

[00:30:00] Speaker 01:
in his reply brief, Mr. Bush is now arguing, well, that claim also goes to the conditional intent element of the government's carjacking charge.

[00:30:12] Speaker 01:
And I just wanted to point out that that was never raised at all in the district court.

[00:30:18] Speaker 01:
The way the defendants argued that element was they said, we just didn't have that intent.

[00:30:24] Speaker 01:
And Mr. Bonds argued,

[00:30:28] Speaker 01:
I thought the vehicle belonged to Bush, and Mr. Bush argued, well, I just wanted to take the bike.

[00:30:35] Speaker 01:
Yeah, I might have been angry with Mr. Swenson, but I didn't intend for any harm to come to him.

[00:30:41] Speaker 01:
So this instruction was never asserted as to the conditional intent element, only as to the last one.

[00:30:50] Speaker 01:
And I see that I have six seconds left unless the court has any other questions.

[00:30:56] Speaker 01:
But we ask that you affirm the judgment.

[00:30:59] Speaker 03:
Thank you, counsel.

[00:30:59] Speaker 03:
We appreciate the argument.

[00:31:00] Speaker 03:
Robert, could you give 30 seconds for a rebuttal?

[00:31:03] Speaker 01:
Thank you.

[00:31:03] Speaker 03:
Mr. Lennon, if you want 30 seconds.

[00:31:16] Speaker 02:
The judge, I think probably at page 1525, stated that, actually read the last line of that jury instruction that we're disputing.

[00:31:29] Speaker 02:
And within two pages of the transcript, you'll find that the attorney is saying that it should be left out and that it shouldn't be allowed.

[00:31:40] Speaker 02:
So that's what we were talking about.

[00:31:42] Speaker 04:
Did you use the word objection?

[00:31:45] Speaker 04:
suggestion.

[00:31:51] Speaker 02:
Let's leave it out twice is what he said.

[00:31:53] Speaker 02:
I think that's pretty strong in terms.

[00:31:56] Speaker 02:
Thank you.

[00:31:57] Speaker 03:
All right counsel your time's expired and counselor excused we appreciate the argument.

[00:32:02] Speaker 03:
The case will be submitted.