may please the court good morning your honor is my name is james healey and i represent appellant defendant anthony matheson well of course we're happy to address any issue the court has raised in our brief said like to focus attention on two particular issue the first being a violation of brady in the trial on count three where the government failed to disclose the d n a evidence during the trial and the second being the application of the sentencing guidelines which found that mr matheson had committed a violent felony is defined in section four b one point two with respect to the brady claim at the trial mr matheson was charged with possession of two weapons which were found in a backpack and next to the backpack outside an apartment the government brought in six police officer witnesses the tried to establish stand simply a constructive possession theory for the two guns there was an arm that was outside the window the arm was described as wearing a white sweatshirt they also presented d n a evidence with respect and also testimony that  mr matheson was showing they saw mr matheson showing a gun to walks and respectfully one of there was testimony from one of the six officers in the hallway that he saw a man in a white hooded sweatshirt holding a gun the other five officers did not see that he couldn't describe the gun that was seen at trial there was d n a evidence presented and the d n a evidence evidence implicated mr matheson's d n a on one of the guns it was found that his d n a was mixed with other d n a that could not be identified the second gun had d n a from one donor and then other d n a that could not be identified at trial the decision was made by defense counsel not to provide their own d n a expert and the cross examination with respect to the government's d n a expert was very limited it was about two pages it's our contention that had that d n a evidence d n a evidence been disclosed it would have fundamentally changed the confidence why wouldn't you have brought in a d n a expert anyway given the fact that your whole argument was that this was secondary d n a that argument would certainly have been strengthened  notion that you wouldn't ball over with a d n a expert would validate a bit postal well your honor as we were not trial counsel i can only and answer you as my opinion as a defense attorney why i would make a decision in that respect if you have your client's d n a and you have no other identifiable source of any other d n a what you hope for is to get the government's witness to say is it possible that that could be someone else's or that it got there through the transfer that secondary low card principle transfer bringing in your own expert you're not going to get anything different in fact what you will get is a good cross examination that that goes into numbers and juries of course love to hear one in three billion or one in one hundred million so you can achieve given the limited window that you have with what's been disclosed you can achieve what you need through cross examination the problem became a think you allude to is that if you refer to the record i believe it's page seven twenty seven or seven twenty eight where the cross examination of the with witness takes place counsel says well there's a mixture of mr matheson's d n a and other on identify d n a on this weapon and he concedes yes and she says is it possible that it could have got there so the secondary transfer and the and the witness says it's possible well the next logical question would shook hands with troy watson that night before the police arrived if they high five if they were passing back and forth something could mr watson's d n a have done that given that he was initially watson was initially arrested was not george there was some evidence wasn't the d n a evidence that the gun was here's i mean if there was some evidence of that from the way it was this yes the argument could be the in summation the counsel could have argued to the jury ladies and gentlemen this could have been true watson's day but with the evidence before the jury you could have easily said it's judge chin's d n a the judge curses d n a because there was that's precisely the prejudice your honor because despite all of those witnesses all those police officer witnesses the tried to tie him to the other gun despite as you point out the witness that said oh i saw a man in a white sweater holding the gun the jury convicted only on the d n a didn't do it and constructive ownership correct that is clearly souls who they must have done it on actual ownership but even so the link to having watson's d n a on it and this goes to i think one of our arguments regarding for a three balancing had the jury been able to hear that actually not to contradict your honor but mr watson was initially charged with possession on that weapon and the charges were dismissed and if the information had been put before the jury ladies and gentleman mr watson's d n a was found on this gun and the charges were dismissed it would have undermined the media bias that the juries place on d n a evidence in fact i think it would have undercut their their belief that perhaps the d n a was as compelling as it was if i could turn to my argument regarding the yeah y honor i think there's been a lot of litigation in and around what is the meaning of the violent criminal  ca definition as applied to the guidelines i think that to try to summarise it as briefly as possible it all comes down to this can the commentary on the guidelines be held as dispositive when it is inconsistent with the guideline above above the line as it were the challenge is this if you look closely at the commentary every word of the guideline section a and b is in that commentary it says the exact same thing except it adds other enumerated crimes i believe that this clearly because joel was dealing with robbery in the first degree but i really read that opinion i was on the panel and it seemed to leave it at least in the court acted as if it was cover your honor i see my time as it may answer your question i agree that there is dicta in jones too but i would suggest that what that dictum means is this court has not considered the issue and i would point you to footnote number six on stuckey vs the united states decided subsequent to jones that's eight seventy eight f three d sixty two and in footnote six the court this court says we do not need to address in this opinion the question of whether all that's higher emphasis in the original new york robberies qualify as violent felonies under the a c a a c c eg i e whether just forcible stealing requires the degree of force mandated by the two thousand and ten johnson decision now the point is this if you are going to assume that the commentary is of equal weight to the statute then this is a meaningless statement because rapped forcibly steals what does that mean well according not imply the use of force according to the supreme court in i call it johnson and johnson one johnson two thousand and ten there were very clear that forcible means in this context must be violent physical force it is not enough to have incidental physical force and in fact as we said in our brief there are several so my question is with respect to the language in the robbery in the second degree statute when it's us it says you've forcibly steals property what does that mean in fact i think the statute says through force or threat and use of force your honor but i think that what new york state has indicated is that any force new york state has indicated that any force constitutes requisite force but johnson  said that's not enough it's got to be violent physical force and that's where the first clause but our argument is that first clause becomes meaningless it can become superfluous if you are going to look at the commentary as being dispositive and i see my time is up and i'll reserve all right thank you all here from the government violation i think there are two points worth emphasizing in response to defense counsel's arguments first as the court has noted there was evidence of actual possession of the gun officer  a gun of acquittal is simply too attenuated to cast doubt on the gun of conviction and the reason for that is because every question that defense counsel wanted to raise during cross examination every argument that she wanted to raise during closing she was equipped to raise and did raise there was evidence presented the troy watson another male was standing next to the defendant and talking to him about the gun there was evidence presented that there were numerous other males at least three in the apartment there was evidence presented that the d n a on the gun of acquittal was associated with male a and male b two identified d n a profiles and defense counsel went out of her way to cross examine the officers and establish that the officers touched both guns and that the officers refused to be swabs for purposes of d n a matching and therefore the defense counsel did argue and had full rein to argue that there was clear evidence that other people possessed the second gun and that that could have been troy watson one of the other males in the apartment or any of the officers and it goes back her that there was vent evidence with  really was was right because she could argue that and actually argue even better than that not knowing that it was actually watson's and with respect to the relevance to the count of conviction which is the transfer argument for the same reasons she had every ability to argue transfer from any one of those sources that were already established to try moving on to the argument with respect to jones first the council argues that the commentary is inconsistent you you  is a preliminary matter that commentary is written contemporaneously with the guideline by the same body so i think it is a stretch of reason to say that when the same body is writing and revising these guidelines that they are simultaneously creating commentary that is self contradictory second that commentary does in numerate several other crimes that fall into what the guidelines are there specify otherwise put in a category under the guideline itself under the residual clause of crimes that present a serious potential risk of physical injury to another now this court has already done the relevant analysis and jones and i understand that it's dicta to the extent that we look narrowly at jones's holding as applying only to first degree robbery however jones is reasoning is quite extensive and then we look at robbery two there are cases where there's a second person involved in the second person is is blocking the victim and those cases are robbery in the second degree but they don't seem to involve violence in the sense that's contemplat or do them i think they do your honor because if it regardless of the particular positioning as long as there's a force or threat of force the way that new york law any force or is it is a what kind of fo talking about i mean it's forced to some extent if someone stands in the way and the victim can't get out the door right and there's another what about the case where the second person is driving a getaway car and that seems to fall under robbery in the second degree and does that case involve violent force i think your honor with the getaway car that would fall under a conspiracy theory so i'm not sure that that would be the substantive crime but others that there is people versus washington and i'm what i'm looking at what convictions for robbery in the second degree under new york law sure right because we're we're we're looking at what's theoretically possible yes  so first of all on what constitutes force i think you have to look at the new york the new york statute and its definition and johnson two thousand and ten is interpret in force for purposes of the a c c a and that does not necessarily translate to the guidelines beccles establishes that the same interpretive methods may not be applied between the statute and the guidelines because the guidelines are not subject to vagueness concerns so that the real reference point should be the new york statute and as this court s it doesn't say it one way or the other and i would submit that the proper way to read the guideline is in the context of the guideline and it's commentary and not necessarily to equate it with the a c c a and as an argument opposing counsel is making is with nature of the argument they are making that or give it was not met directly in jones and frankly i'd like to hear an answer to it i think or maybe will be a good answer but so far i haven't  the i think the answer to that question is for b one point two has a phrase in it that is rather general listen series of offenses and then says or offenses that otherwise involve conduct that presents a serious potential risk official physical injury to another and the cometary serves to add color to that general phrase as commentaries often do and particularly in the in the context of guidelines commentors we look at the language of the robber statute a person is guilty of robbery in the second degree when he forcibly steals property and when he is aided by another person actually present i think the defendant argue something that is the least of the  several acts does that language necessarily involve the serious potential risk of physical injury to another i think it does and i think this court has already explained why it does because in the reasoning to jones to the court explain that even the baseline new york robbery statute and y p l one sixty when requires forcibly stealing meets the jeff definition the generic definition of robbery and because robbery is a new married in the commentary it is that that is a what's the reasoning there i mean how you're saying the forcibly stealing necessarily implies a serious potential risk of physical injury to another and that the four and that the fact that it's because the guidelines commentary then enumerates robbery the relevant comparison as this court has explained is whether the generics are conclusions i'm trying to understand why i mean why is want want it because i do see these other examples that aren't we do not involve the risk of serious risk of physical injury to another i  think and i'm referring back to joan's to in in explaining this because i think the reasoning is on point and it's that the generic definition of of robbery although conventionally involves the use or threat of force which would would pertain to the force clause that's not being discussed at this moment it also as the court explained a majority of states have departed from that common law definition broadened broadening it to also prohibit the peaceful assertion of dominion followed by the use or threat of force and the court then finds that because of the narrow way in that new york actually defines the restrictions on the temporal ation ship between the underlying theft and the use of force or threat of force let's do this i think we're counsel argued that the fact that mr watson is were dismissed despite the d n a should have been raising could have been raised at trial i want to make one thing just clear for the factual record there's no evidence in the record what the reason for the state's dismissal mr watson's charges were there's no evidence whether the state prosecutors knew about the d n a match before or after that dismissal there's simply nothing in the record about that thank i'm going to try to dispense with the brady part of the rebuttal very quickly because we can get lost down that rabbit hole posing council argued that council could make a better argument for transfer not knowing who the d n a belonged to and as  legal exercise that memory may very well be true but a more effective argument an argument that would have undermined confidence and a guilty verdict would have been the guy standing next to him that night who he had implicitly had contact with his d n a was on one of the other guns and it can't be excluded from the gun that had his d n a on it going to the jones case i think that the critical part of the analysis here is that if you hold the commentary to be dispositive then you can take a pen and strike through section a and strike through section b they're superfluous every single word in those is in the commentary the only thing that was done was they added another i think in general your honor commentaries can be duplicative i think often their morals straight if in this case i think that judge chen is really focused on the question which is above the line we have the force clause what is physical force i think the supreme court has answered that question the second clause which is the residual clause which as you point out bekele said is still in force because it's  language serious risk of physical harm and the question is what in robbery to implies by death by a categorical approach to serious risk of physical harm if there are no other question w supplemental brief on the jones issue ten pages double spaced within a week and then the defendant can respond within a week thereafter