please the court my name is emily harrell and i represent appellate karim doctor south carolina strong arm robbery does not meet the definition of a violent felony under the force clause of the armed career criminal act for three reasons first south carolina strong arm robbery is an overbroad and indivisible offense which can be committed by either a de minimus use of actual force or constructive force neither of which is necessarily equivalent to the level of physical or to bring south carolina strong arm robbery under the act as force clause second to force clause of soft on a strong arm robbery lacks any specified men's rights therefore this element can be satisfied by either criminally negligent or reckless conduct both of which are insufficient under this court's precedent to qualify the offense as a violent felony under the aca and you give us an example of how a robbery  in south carolina would have all been negligent or threatened use of force well if i hear it it is that necessary i mean obviously it's to be more than a theoretical possibility right overnight yes roger and if if there's no no case out there i mean just the common sense of the matter would be that a strong armed robbery would either be y negligently carried out the whole idea is to apply violence or threat of violence in order to get someone to partner with their valuables it could be your honor that under common law definition of force that you could divert someone's attention and turn around and steal their car and negligent  as you probably know south carolina defines strong arm robbery as the felonious or unlawful taking of money goods or other personal property of value from the person of another by violence or by putting the person in fear putting him first in the person in fear is when an ordinary reasonable person in the victim's position would feel a threat of bodily harm from the perpetrators  offense overbroad and indivisible because south carolina juries are not instructed that they have to decide whether the perpetrator used actual force or i think a perfect case in this area is the rosemont case in which the defendant simply glared at the victim she fled as it were and hid behind a nearby freezer door and he then the actual force that he used was against the cash registers when he flipped them up in the air he was convicted based on his constructive use of force against her and the r freezer door wouldn't you feel threatened or intimidated i mean normally that doesn't really happen the robbery was to get her to part with the money it wasn't against her it was the object of the robbery was not cash register a ruse to get her to part with her money against her will well that's true but his use of constructive force was simply glaring her he did not say anything he did not move toward her he just the way he looked at her and that's not sufficient under the force clause of the arc or criminal act that's not int demand a misuse of force and it's how an ordinary reasonable person would feel that doesn't show you that the objective actions of the of the defendant does were threatened because it it results in how the victim under south carolina law it's based on how the victim feels versus the objective actions of the unprovable actions of the defendant him so don't want to use that case think of you know how she feels she flew in trying to phone refuse right that's correct but i think the standard has to be that the defendant knew his actions were objectively intimidating i don't think so in these circumstances i mean you walk into the place and you glare at the cash er i mean that kind of thing what would what would you need to do i think you would have to there have to be some evidence that the defendant knew that his actions were intimidating and there's that this case is based on how the victim felt it's not based on the cash register and thrown it down in the store that i wouldn't be some indication that something is or it could be but  arc or criminal acts force clause says that the force used has to be against the person of another and so the intimidation and the that's what the chief judge is question ind there's no doubt in my mind however store clerks these convenience store felt or what the intruder intended when we look at it from the standpoint of the victim or the intruder there's a meeting of a man i want your money you don't want to give it to me but you better i think it has to be that the elements of the offense are such that the use of force meets the standard of the acas force clause and our position is is that the south carolina cases under particularly this one under constructive force a conviction could be reached by the use of some minimal force but south carolina law is not copious agree but the statement in rows of seems to match up honor at the south carolina court of appeals version of of the resident case and the case that the constructive forces accomplished by all demonstrations of force no matter how sli cannot act as force clause in the gag of case that the individual pulled on the victim's arm looked at her in a unkind manner threw some groceries on the ground and made off with her purse of having grabbed the victim's arm and placing something in her back she never saw a weapon she didn't know what it was and then he proceeded to the cash register and then emptied it so those demonstrations of actual force are to minimalists and therefore takes the  e i'm sorry the the offense itself strong arm robbery is overbroad because a jury doesn't have to decide whether the defendant used actual force or constructive force in accomplishing his or her task would you actually argue in your briefs that the robbery in south carolina can be accomplished through the minimus force was it that i may have missed that i don't think you made that point i did not make that point but it's raised in those cases or in the government's brief and so i thought it prudent to make sure that are you  your colleague as well but are you familiar with the south carolina pattern your instructions that suggest it would respect to this offense the jury is to be instructed that the degree of force use is immaterial honor i was not aware of that it might be helpful it might be helpful thank you so much those pattern instructions have recently been removed from the supreme court's website i'm not entirely sure why they was removed after most of our briefs were filed so i can't speak to that that connect me a related question is it your position that the law is crystal clear here that so that we can decide this issue i mean north carolina's case law was fairly clear which led glare which certainly cannot in any form be you know the threatened use of physical force and based on the actual force cases may please the court robert daly on behalf of the united states south carolina come all robbery strong arm robbery is a violent felony under the force clause and the reason why that is is because this case is actually controlled by the mcneil case if you look at the definition of intimidation and mcneil it cites the wagstaff case uses that specific language whether an ordinary reasonable person in the victim's position could in for a threat of bodily harm from the defendant's acts that is the identical definition by the south carolina supreme court  say north carolina there's no question that these are these are and these are on par they are they are the identical standard there's no sound basis to conclude somehow that the intimidation element in south carolina robbery is different than the intimidation element in federal bank robbery it is at least in four circuits it's identical and part of the reason why the standard that was used in the court of appeals decision isn't binding on this court is because the south carolina supreme court changed that standard by adopting the wagstaff standard of intimidation so that's the reason to start with that you  i don't i don't know i mean i think it's the same standard in south carolina the larceny aspect of robbery is actually a specific intent or i'm so  clearly if you look at the examples we cited in the brief there's no instance where a defendant none of the factual circumstances present an instance where there'd be somebody who didn't know what they were or what they were doing they are general all of them at least meet the general intent threshold although it's not spelled out in the common law there's there's no accidental or negligent use of force or intimidation in any of these cases that we cited and i looked as far back as i could couple hundred years looking at ones that didn't even have had notes which is a real challenge when you get used to that  there just isn't any so i think i don't think that's makes a difference in the two cases that she cited and i don't think they did actually make the argument i think she made it here but i would say that both gaggle which actually involve a little more maybe than than what was summarized earlier the defendant actually took the purse from the victim after staring at her in a frightening manner and told her you're going to give me your purse he pulled on her arm repeatedly and then pulled groceries out of her hands and threw them on the ground that is clearly not some encounter and then the other case it was the use of what anybody would perceive as a gun in the back of somebody and so clearly another instance where you would think  the victim would think that they would that this is the use of threat and force on them so in those instances i don't see how south carolina strong arm robbery could be anything but a violent felony now the the cases are are not many that the defense has brought up and the truth is the only one they really brought up and spend any time on is the roseman case and the russian case is a little more than what i think you may have heard earlier because not only was there a glare but before there was a glare the roseman came out of the bathroom where he had been for a few minutes came around the counter to the cash register and started trying to open it glared at the victim she then moved away but if you look at the testimony it may be in the court of appeals where the the the trial testimony is laid out but she says she's only a few feet away and at that point he flips the cash register and then  when that doesn't succeed in opening the cash register he then slams it to the ground which anyone nearby a few feet away would know it would be like saying if you  if i don't get this if you don't let me have this money i'm going to body slam you in fact the reason roseman went to the state supreme court is because the court of appeals also used the fact that rosem after he left got into an encounter with the police and body slammed to one of the police officers so that could the supreme court said state supreme court said you can't use that as a basis for what went on in the store but it does show us that that it would be a reasonable belief that if someone slams a cash register hard enough to break to break it open that they might very well if you got in their way do the same thing with you the only other two points i guess i'd make is with regard to the man i think men troy is now post voice in recklessness and again no cases out there in south carolina where there is anything less and really at least in at least meets the recklessness standard there's not a case for going to find that that would be negligent or accidental use of force and then the final thing is with regard to  being directed against the victim the whole point of robbery is that it is larceny but it's then larceny against a person because that's who's intimidated that's who gets   i called opposing counsel and said you know a few a month or two ago and said well what happened to the pattern it wasn't just this one it was they're all gone so i don't know you know it's a mystery that i don't think any of us can solve but i did not i did not see that pattern jury instruction that dealt with it being immaterial and i don't think there's any case law that says that that says that your  know a few different judges at some point i think maybe send in suggested or what they had used and i don't know if that is how it started to get compiled in perhaps somebody took a look at it and decided maybe i don't know i don't i don't want to speculate but those instructions are gone and we can't seem to get i haven't i called and i couldn't get an answer exactly why they were taken down i hope the others are still charging yuri because mcneil is a case involving federal bank robbery and while there is useful language in mcneil it does not dictate whether south carolina strong arm robbery meets the definition of  most of these robberies are committed through intimidation it's a different kind of crime from i think from burglary and larceny and many of those which can occur really or even assault and battery which can be involved in a minimum of force and in some cases a burglary larceny you don't have to have personal intimidation and then assault and battery you don't have to necessarily have accomplished unlike those other crimes force actual force or threat of force which translates to me is intimidation of other words i think this is different from burglary and can be accomplished with minimal or nonviolent means it's different i mean all these crimes crimes and after said they have different general characteristics  to the use of force you know that you have to have some indication in the evidence that the defendant knew or intended that his actions were objectively interrogating i think in the rip the individual leaped over the counter at the teller and then after he was arrested he said oh my gosh i sure hope she didn't have a heart attack so that was some evidence that facts the victim testified that yes she was a few feet away from the petitioner but when petitioner went behind the counter murray stated she ran behind the freezer door because she was scared this is prior to him glaring at her so a step up behind the counter was enough and in response to the question about what exactly scared her mari stated just the way he looked i mean he didn't say anything he didn't move toward anybody just the way that's all it was like a glare and my time is up