things a world of the experience to this task he has sat with great distinction as a district judge in the southern district of florida has sat with our court and many other circuits over the years and we are delighted to have him two other very brief observations that i want to make before we begin and for those  you with with our lighting system and the timing system we there's a time clock and you'll see that there are three lights there's a green light which means of course you may proceed a yellow or amber you've got to stop right in the middle of a sentence but if you could bring your remarks to a close we'd be much appreciative one of my colleagues was fond of saying with regularity that the red light is not aspiration  nd observation for you as you proceed with your arguments you may safely assume that we've had a chance not only to have the briefs in the record excerpts but in some instances you've had a chance to review the record as well so feel free as you proceed with your argument to really go right part of your argument with that welcome again it will begin with the st case the united states versus  i would like to address three issues for the court today the st is why a violation of one hundred and eleven b is not a crime of violence the nd is how mr bates was completely deprived of his defense to the one  by the exclusion of all evidence related to him being the victim of a prior shooting and finally the rd issue is why mr bates mr bates is conviction for felon in possession of a firearm should be vacated in light of commission of any act described in one hundred and eleven dollars a which includes forcibly assaulting resisting opposing impeding intimidating or interfering of these means this court's pattern jury instruction only states that assault needs to be forcible and is silent on whether the other means need to be forcible and indeed in many instances these other means can be accomplished by less than intentional force and therefore do not meet the requirement in leo cow of active employment of force for example someone could violate one hundred and eleven b by driving recklessly crashing with a police car and therefore interfering with an officer's pursuit of a suspect or someone could shoot out a lock to open a door to escape while officers are approaching thereby intimidating those officers by using a by returning to my scenarios they illustrate why the presence of a deadly or dangerous weapon cannot transform one hundred and eleven b into a crime of violence a crime of violence requires the use of force against a person but in these examples the force was not directed at a person and therefore is not intentional the other way to violate one hundred and eleven dollars b by inflicting bodily injury is also not enough it is  result results oriented and does not necessarily equate to active employment of force for example what if someone is preventing an officer from arresting him by stiffening such that the officer struggles to pick him up and therefore strained his back this person could be charged with violating one hundred and eleven b even though they did not use any force against the officer or what about a suspect who is fleeing from an officer and during the chase the officer break his leg although this suspect had no intent to cause the officers injury he can be charged with the one hundred and eleven dollars b because he impeded the officer and an injury occurred under the categorical approach which applies here the court looks only at the statutory definition of the prior offense rather than the facts and presumes that the conviction rested upon the least of these acts criminal using this approach it is clear that the least of the acts criminalizing want to lebanon for example intimidating or interfering do not require the active employment of physical force would you agree that are proud that the dollars defines three separate crimes and therefore it's divisible yes you're ok and so if it's divisible why would we not be applying the modified categorical approach you i believe the only apply the modified carrot categorical approach to described in subsection uses a deadly or dangerous weapon including the weapon intended to cause death would be or inflict bodily injury shall be blah blah blah but the is in commission of any acts described in the subsection and when you go back to a you will note that both of them have as preface forcibly assaults forcibly intimidates et so the problem that you have here is that you've got a crime that's described as falsely assaulting with a deadly weapon or falsely assaulting in a way that inflicts bodily injury how could either of those formulations not be a crime of violence it's because the the level of force in this statute is not the same level of force required by leo col there are cases where someone has been convicted of one hundred and eleven a violation where the force was very minute for example poking someone in the chest and so the fact that forcibly is there doesn't mean that it rises to the level the force required under local nd though the way it's rare and does not mean that forcibly applies to all of those other means the statute says forcibly assaults and then follows with resist opposes it's not clear that forcibly applies to those other means and indeed the fact that the pattern jury instructions just define forcible assault that's all they a fine all it's a fine read to mean that these are all different means and that forcible doesn't attach to all of them do you want to go into the other argument yes please thank you the nd issue was is that mr bates was deprived of his rights to present a complete defense to the one hundred and eleven dollars charge by the exclusion of all of the eval evidence related to his prior shooting which was factually similar to what occurred in november of two thousand and thirteen basically where in years prior mr bates was shot when he went to answer and knock at  two prior shooting mr bates suffered from a trauma related disorder that made him hyper vigilant particularly when he was in his home and that that was she would have done so far as to say how what would have been rationally impaired as a result of the trauma no i believe our intent was only to get in the fact that this prior shooting had happened under under similar circumstances and that those circumstances sorry that he was traumatized in a way that we could then argue to the jury where's the link between what he did or what he says he did and why he did it and her testimony it seems to me is just out there he had a trauma and this is a consequence that he was hyper anxious but there's no point to anything in the record before the jury i believe the link is in the nine hundred and eleven call where mr bates is heard stating that he thought they were trying to break in and try to come in we can make that link and then i think the thrust of the question is that shrinky never seem to make it clear that bates trauma misunderstood i don't think she made that distinction right she never said that this trauma made it more likely than not or even to a degree of medical certainty that he could say that he believed the it was we're likely to believe that the officers were it was just that any intruder would have triggered this irrational response is that right yes given the circumstances that happened yes thank you thank you i didn't mean to cut you off if you wanted to finish they finished that point you preserve your full your full five minutes and i'm fine thank you please the court gabriel mendell for the united states every violation of want to leaven whether it be under subsection a or subsection b requires a forcible assault the reason why the jury instructions only court as this court held in the fall in case of violation of one hundred and eleven a requires quote a willful threat or attempt to inflict bodily injury cannot be reckless or negligent or accidental it must be will violence you would concede that one hundred and eleven dollars to a one in two comprehends the possibility that that crime as committed might not be a crime of islands but that simply any crime arising you have the use of a deadly or dangerous weapon which is a weapon that is capable obviously of causing death or serious bodily injury and then you have force that in fact inflicts bodily injury those are two variants and either one qualifies starting force capable of causing any physical pain or injury or a weapon a deadly weapon it is more than enough and in the words of the st circuit in taylor quote the element of a dangerous weapon imports the violent force required by johnson if anything the bodily injury aversion is even easier because any force that results in bodily injury is necessarily a force that was capable of causing bodily injury and again in the words this time of the th circuit in kendall an assault that causes bodily injury by definition involves the use of physical this is an easy question and that was the charge here correct wrong did inflict bodily him that's correct your honor and in fact in this case either either apply not just to the act itself but to the injury that results in other words they're trying to argue that leah cal imposes a specific intent requirement but that of course is is incorrect all that is required is that the act itself  eleven has different tiers and the nd tier which was at issue there was battery simple offensive touching resulting in bodily injury and the defend in that case tried the same argument mr bates is trying here and says well up turn even though miss cover didn't get to the re for issue i think it's important that this court addressed it and so i'm going to discuss it there hafe issue as as the panel is aware is that previous to the decision to take tear into the issue that excuse justification is just plainly prohibited and this court is only recognized one exception to that it's in the cameron case and that is the exception where a diminished capacity defense is offered that negates the mens rea of a specific intent crime but as this court already held and here i want to levin is not a specific intent crime and therefore the cameron exception doesn't apply and just talk to your question i think one of the issues the district court struggled with is it wasn't clear in the st place what this evidence was being offered for because the st thing that they say in the dish record below when they say it in their briefs there is no this this isn't diminished capacity and i understand why they say that because they can't fit themselves into the cameron exception but when you look at the report what they were offering it clearly was a diminished capacity defense the report said quote it is likely that mr bates where he experienced increased anxiety and had a heightened need to protect himself which rendered his ability to think rationally impaired that is just pure diminished capacity and so the district court understandably made clear it wasn't going to allow that so they start to backtrack and say no that's not what we're offering it for but nowhere make clear what are they offering it for because their problem is if it's not diminished capacity there is no other exception that gets the psychiatric evidence and and their effort to link it to a mistake of fact i don't work because it's court held in alvarez now which of the victims federal status is never an element of this crime and quote even a claim of self defense based on lack of knowledge does not make knowledge an element of the crime or if it's not an element of a crime psychiatric evidence can't negate that element it's not an element in the st place so that's why the district or properly excluded that evidence and didn't abused its discretion if you're right why would the brother's testimony be admissible the brother yeah well it depends what the brother was going to say if the brother is going to tell we had a problem for though did we not about what the brother was going to say i believe there was an argument that he was going to testify that the defendant was more scared after the after the shooting and i think any testimony that is going to go to his mental state or his mental status is just lay testimony that falls into the same probation if an expert witness can't testify about it there's no reason a lay witness is going to get in the same i thought the district judge said that he would allow the brother to test them on the facts surrounding the two thousand and two  psychiatric have it and is excluded under idea right and importantly it's not a relevant question and that's when you read their brief and you read the argument they keep saying well it's relevant to our defense idea ray took relevance off the table relevance was the problem right there w lots of psychiatric evidence coming in on a relevant standard but what congress decided is that's not going to be that i understand the argument that psychiatric evidence to go to the miniscule passage in mens rea it was inadmissible i'm asking a different question the trial judge said if i had it right that the brother could testify he could get on the stand and say well done here's what happened to my brother it was an intruder there was a trauma blah blah blah blah blah and this was my view of the consequence this is what i saw in the behavior of my brother how would that be admissible particularly the latter portion of  intent even as a general in ted why would one be in and the other out i guess that's really the question and if you can see that the st could come in the nd the brother then why couldn't the but it would have been of no real moment unless somebody turned the circle complete right and i think that was the problem your honour's of course mr bates didn't have to take the stand he had absolute right not to but without doing that how you make a self defense claim based on his mental sta based on what he was thinking at the time and it's very tricky i think the district court was trying to give them some leeway in that regard because as they knowledge that was their that was their only defense and without that they were going to have no witnesses and no evidence and that's what they ended up having and so it without trying to speculate too much on what motivated the shooter a judge i think that may have been it was to try to give them something knowing the psychiatric evidence under idea is clearly barred maybe this is a way of giving them as you said half a loaf if the court a llama i'd like to turn to the race sure to you because i think it's important that the court right on this issue what we have here is a a indictment and guilty plea that were accepted on one hundred and twenty two dollars g without what we now know of as the so called element which is the knowledge once he got convicted in this went to a p s r they were going to indicate that he had three prior criminal convictions and we think it's important when we know that that he be apprised of that at his guilty plea and be aware that unlike the ordinary ten year statutory max it mandatory minimum and he was apprised of that the problem we have in this is we all agree on this the problem is our indictment didn't have the knowledge of status that mr bates knew at the time he possessed that he was a convicted felon and similarly he wasn't apprised  guilty now this is a non jurisdictional defect as this court recognized in the reid case three weeks ago the defect in this indictment is a missing mens rea element and that's all it was and so mr bates waives the his indictment and therefore we don't get to par but he was wrong and i think it's very important that the panel right on this issue because we already have a district in the district courts we have prisoners trying to bring twenty to fifty five's and avoid procedural default on the same  jurisdiction argument so why is the argument flawed you go to the twenty four team decision and brown where this court's opinion very thoroughly discusses this court's jurisprudence on indictment defects and delineates the vast majority of them which are non jurisdictional from the few that are jurisdictional and in particular on the on the jurisdictional side is peter which is the case that mr bates relies on so having and what the peter kay says is that if the specific allegations in the indictment criminality then you have a jurisdictional defect and you look at the peter case he was charged with mail fraud the object of his mail fraud was an alcohol license and a couple years after his conviction the supreme court says alcohol licenses don't count as property for purposes of mail fraud so the language of the indictment itself the specific conduct that defendant was charged with affirmatively took his conduct outside of the criminal that's what peter stands for and that's what all three cases the brown court could find or a jurisdictional defect was found that's what they all had in common by contrast what we have here is a mere missing mens rea element there is nothing in this indictment that is inconsistent with criminality that negates criminality we didn't for example charge him with being a felon in possession of a lawnmower we didn't allege that he was ignorant of his status as a felon we just omitted that element and so what brown tells us brown is on all fours that he that is the exact can't show plane air he would have pled guilty anyway the evidence of his now age is abundant he had seven felony convictions he had multiple sentences ten years confinement ten years confinement cetera but more to the point the huge benefit he got from pleading guilty was he kept this jury that was still deciding the more serious charges from ever knowing that he was a convicted felon and his own attorneys and making sure that there was no mention of that discuss how extremely prejudicial it would have been to him if they had known of that so he cannot  yes i think it is when you look at his conduct overall with respect to all of the counts mr bates initially did enter a guilty plea to the assault then moved to a tried and went to trial and back out his his lawyer not to plead guilty what would the trial look like in terms of his knowledge that he was a convicted felon i believe the government has suggested that they would put forth evidence of the transcript transcripts of his plea colloquy he's right and assuming that they do say that i don't know that they do say in all of them that you are not supposed to have a firearm i don't know but at the issue is not whether mr bates would have prevailed on this count it's whether he would have actually decided to go to trial and even if that evidence came in we would still have a defense of that saying that these transcripts did not necessarily prove his knowledge or that he recalled it years later when the assault occurred in two thousand and thirteen or we still would have had a defense for the assault because none of these priors were violent where mr bates was actually using a firearm so just th evidence overwhelming yes because of mr bates his prior conduct especially with a plea and then deciding to go to trial i think the record shows that he is someone who would have gone to trial if he thought he had a defense maybe not a good defense but a defense on that count