kevin page and i represent women mclachlan and i work for the federal public defender i will of course be pleased to talk about anything the court orton but my goal today is to cover at least the first and fourth arguments in the initial brief  time permitting the third and actually like to begin with the fourth argument which is the sentencing claim because i think it's clear and given the grouping rules in this case the operation of those rules it probably has about as much effect on the sentence says it would to vacate any one count conviction mr mclaughlin received a two level enhanced meant on counts five and six here for acting as a leader and leader organizer submit to the court that the evidence in support of that enhancement was clearly an adequate at least as to count six and if it is removed from either count the guideline range will be reduced by twenty months for every count the government has cited two pieces of evidence in support of the enhancement and i don't think you could find getting more if you scoured the record and these two pieces of evidence are very very slender reads for this and handsome and first the government cites the fact that the defendant told his driver where to go and the count to to get to the count site of the count five robbery this is not really acting as a leader it is about as much leadership as i hope to show my over driver on the way home it isn't really directing another participant so much as it is giving directions to somebody the record is would not be dependent on what the driver knew at the time he directed driver doesn't know that when he drops you off at the grocery store what you're going to go in there and do whereas in this case wouldn't it be important if the driver knew the purpose of the trip it would be part it would be relevant to the question of whether or not the driver is a participant but there's really two questions here and when one is is that is miss colton a participant in the other question is is he showing leadership and so the defendant has been to the site of the count five robbery before it was the site of the count three robbery unfortunately and so she knows where this place is and she doesn't so all he's really doing is giving her directions to the spot  choosing the location even if we were to call that leadership sufficient to trigger the enhancement it has to be seem broadly in the context of the entire excursion this entire excursion involved trips to four banks to to motels to waco and back and to the houses of two relatives of the participants and he gave the driver money and and he gave the driver money because he had the money to begin with he went in and that's the limit of the defeat of the court's finding that's the limit of the of the court's finding on page nine fifty three nine fifty four you know she he says one of the reasons that i went ahead in the direction that i did was that while she was saying she wasn't involved from all the circumstances that you look at it would be at least willful blindness i thought on her part to say that she didn't know what was going on and maybe even more than that that she actually did know you  think a normal rational person would know that something nefarious was going on and probably even specific like there was bank robbery so so so this federal funding stopped short and to pump and two ways of what's necessary for the first it doesn't say that she actually knows it says a a rational person would know so it so it stops short of actual subjective knowledge and second of all he says it stopped short of saying that she knew that it was robbery and in fact she told the f b i that that she knew it was something illegal but not that she knew that it was robbery so so those are both serious deficiencies as to the question of whether she's a participant the question of whether she has to know that it's robbery i think binns in my favor and mr mclaughlin favor based on the clear language of the of the enhancement the enhancement says that a person is a is a participant if they are criminally responsible for the commission of the office it's the definite article v there are limits us to the statute of conviction there she has to know not merely that it is something illegal but that it is bank robbery based on based on the guidelines use of the word the there and that is kind of a bank don't thing i mean she didn't go in there and sell drugs or something i mean they went to a bank and he came out with the money i mean at some point subject has to give way to the judge's finding it's a finding usenet a preponderance of the evidence at sentencing that the judge can find relevant facts to points about that it is but but that's not the finding that the court here the court said maybe bank robbery or but certainly something and second of all it's not at all implausible that you could go into a bank and and commit checks or something else that would get you that would get you the money there is that nothing about going into a bank and coming out with money even if you assume that it's illegal and and and the you know that the evidence room is of course that is getting more than a driver but tells us that it's that it's by accomplished by intimidation but even putting all that aside putting aside the question of whether the the participation excuse me whether that she was a participant if there's still an adequate evidence of leadership here there's still an adequate very very slender evidence that he's calling the shots or telling anybody what to do here he goes in and he gets the money he has the money first so the fact that he's that it's arrested in his in his possession doesn't tell us who's alternately going to the money and in fact the evidence is really rather to the contrary to the suggestion that he's ultimately going to get ever all of the money that's found with his possessions and the reason that we know that is because m all parties agree is trying to bail out her boyfriend from jail that day and she is found arrested with twenty dollars you know inflation as it is twenty dollars isn't going to bail anybody out of jail so the final cut the final distributions that money has clearly not been made at the time of the arrest so we really don't know anything about who has access to to who has the claimed right to the greater share of money all we know is at best who is an immediate possession of the money and we we don't really know that without any ambiguity because the people in immediate possession of the money one would think are the people in the motel with the money and not the guy down the street at the convenience store he isn't even arrested in the motel w money so in one sense he's an immediate possession of the money because it's with his his possessions but in another sense he's not even at the scene where the money is and finally i want to call the court's attentions t and four which which provide which really grip create significant doubt about whether or not the distribution of the assets reclaim the right to the distribution of the assets can be independently sufficient  order to get to the role and handsome and no two says that you have to direct a participant in order to get the lead organizer enhancement and control over the assets maybe a basis for upward departure so would so this really isn't independently sufficient evidence under no two and note for which does mention the claim right for the share of the assets says that it is something to consider when deciding between different kinds of enhancements to two points three points four points there but not doesn't say to use it to determine whether the defendant gets  enhancement at all and indeed no two was is to the contrary of the proposition so if the court doesn't have questions about the fourth issue i'd like to move on to the first that there's only one set of elements to the bank robbery statute there's not one set of bit of elements that we use in jury instructions and another one that we used to decide the categorical approach and brewer told us that bank robbery triggers for b one point two because it has the threatened use of force and all that mr mclaughlin wanted to hear it was for the jury  threat of force but that brewer does tell us that we were it requires at least an implicit threat of force and that's all that and if it hadn't said that requires at least a threatened use of force there's no way it could have qualified under for being one point two  a which requires either the use of force the attempted use of force as a threat and use of force as we're all extremely familiar with from or from our colleague oracle approach litigation in that case so the government s argument about the insufficiency or the unit and inaccuracy of mr mclaughlin's jury instruction is essentially that it does it's not explicit about the fact that the threat of force may be  implicit but it doesn't say that it has to be explicit it just said there has to be at least a threatened use of force in order to sustain the conviction under intimidation and brewer directly supports that principle balance you believe brewer impacts the pattern jury instruction as i understand it the district judge who used the pattern instruction isn't that correct yes to the letter do you believe that brewer changes the pattern instruction in some way that the judge should have modified the pattern instruction yes but we don't need to reach that i think it does upon the the defendant's request the defendant ought to be entitled to a an instruction that that the threatened use of force required under brewer and that's not because it's changed the laws because it's it's amplified a certain proposition of law that what had been really discussed before before brewer that's doesn't have to be in every case but upon the defendant's request and in a case where you have a note that is this innocuous this is bank robber give me twenty stiff these hundreds of the definit gone in and you know taking the place over and displayed a weapon and made very explicit rumors of sentencing case a stand your position is makes no difference but brewer's a sentencing case it does not in any way suggest that the elements of the crime part of the statute are changed does it the elements that are set forth elements of bank robbery are the same in the for the categorical approach as they are for jury instructions that the point of a categorical approach is that the defendant is held accountable only for the elements of of the khan of the the  s during search was communicated by the pattern jury instruction which says that the that he has to put another in feet but brewer communicates a little bit more than that and so that and so did the defendant's requested instruction for one thing a threat inquiry requires something more than putting another in fear it requires and it is the defendant's intent to put another man in fear the only reference to intent in the the jury instruction is that it says that the defendant has to intentionally obtain property it doesn't say that the defendant's it the causation of fear in another must be intentional so a threat is something more than putting another in fear it is a an act of communication whereas putting another in fear is causing a sensation or in another person those are in the case of a robbery which is on the innocuous at least as count five and six those are significant questions jury questions that the defendant should have been allowed to litigate and finally i want to point out that just to point out to the court it doesn't need to modify the pattern jury instruct say that they should be modified in order to find for the defendant in this case because in this case this very unique case we had this exercise of the jury crossing out by force themselves in the pattern jury instruction and a reasonable jury asked to cross out the words take money by force could think that that also means that the defendant doesn't have to take money by threatening force acting by force to a reasonable jury not to us we because of the  kennedy can surplusage might they might understand that to mean that a threat of force is not necessary because they've been through their practice thank verdict in all respects it should first find that the district court did not clearly err when a when applying the two level enhancement to mr mclaughlin sentence for acting as a leader organizer with respect to miss calls and on counts five and six and alternatively not alternatively but additionally the court should also find that the district court did not hear by using this court's pattern jury instruction when defining bank robbery by intimidation for the jury rather than use mr mclaughlin has proposed an incorrect instruction and i'll start now where mr mclaughlin started with the sentencing and here it's an issue and i believe my friend mr page has passed over unfortunately a few important facts here first this is a clear error standard to review it's highly deferential to the district court finding on the respect and when the court is assessing whether or not somebody is criminally responsible for an office this court in the in the glynn's each case said that all that must be shown is that the person participated knowingly in some part of the criminal enterprise and the evidence before the court demonstrates this in droves miss calls and testified that mr mclaughlin directed her to the fifth bank which he robbed she also drove him to the sixth bank which she robbed she knew he went into the bank carrying the white envelope and she also knew based on testimony based on rather interviews with the f b i that she was doing so that he was doing something illegal to obtain the money but she didn't exactly say what so given this low standard  that the court utilized here and based on the clearer standard of review i think it is clear that the district court did not clearly or on this front additionally would she ever charged with any certainly not as a coconspirator in this case but misprision or anything no your honor miss colton was not but i think in terms of passing along the money that's another aspect of the court looks at when considering whether or not this leader organizer and hansen is appropriate and in a case where the leader organizer keeps the lion's share of the money that's another tick in the favor of finding that they were a leader organizer and on the day of the that robbery on may twenty seventh two thousand and sixteen investigator testified that mr mccloy often had robbed approximately forty two hundred dollars between the two first convenient banks he robbed and among his possessions in the hotel room which he rented that day there was found about thirty two hundred dollars which demonstrates that he kept the lion's share of the proceeds while the other people involved with the oftens had much less so i'd like to tur now to the jury instruction it is well settled in this court that a district court does not care when it charges the jury based on this court's pattern jury instruction so long as that instruction correctly states the law and judging the heart as you previously reference district court took this circuit's pattern jury instruction section two point eight zero a word for word which defines bank robbery by intimidation as a taking in which a defendant says or does something in such a way that a person of ordinary sense abilities would be fearful of bodily harm the district court again took that instruction word for word and provided it to the now it's important to remember where this instruction comes from to explain why was appropriately used here the basis for this instruction came from the nine hundred eighty seven decision expressed threat either expressed a verbal threat of bodily harm or an expressed threat used by displaying a threat in only displaying a weapon and this court disagreed and it found that bank robbery by intimidation is accomplished when a person a defendant puts an ordinary and reasonable victim in fear of bodily harm as a result of the defendant's actions so based on this instruction the court found in subsequent cases united states versus mccarty united states versus baker both of which are cited in this court pattern jury instruction in this court found that that was sufficient to higdon case the mccarty case the big case none of these cases have been overruled by an in bank panel this court or by the supreme court or superseded by congressional legislation as well as a result this remains good law mclaughlin would have this court believe that the united states versus brewer case represents some sort of sea change when it comes to charging and proving a bank robbery by intimidation case but all that happened in the brewer case was that this court acknowledged that a bank robbery by intimidation necessarily meets the crime of violence standard because when someone accomplishes a bank robbery by intimidation by putting a person an ordinary reasonable person in fear it's used language in the broader case much like the court used in the case and much like language which is already in the pattern jury instruction is somewhat complex the bank robbery by intimidation and they necessarily have used an implicit threat of force but mr mclaughlin would take this crime of violence standard and invert it and put it in place of the time tested narrow language with this which this court has utilized in its pattern jury instructions and this is wrong for two specific reasons and judge comment i think you alluded to one of these earlier this week law firms proposed instruction would require the government to prove a bank robbery by intimidation by either the use of force or the t the use of force is plainly an inappropriate language to use in this sort of instruction because bank robbery under twenty one thirteen can be accomplished in two ways one way is by force and violence in another way is by intimidation simple principles of consent statutory construction indicate that bank robbery by intimidation does not require the use of force so on that front alone his proposed instruction with flatly and correct and again to have an unqualified threat of violence i think still overstates what the government is required to prove  in case this court rejected mr higgins argument that an express threat of bodily injury is required to prove bank robbery by intimidation you don't think brewer has any impact whatsoever on the pattern and structure no your honor it does not because i think what brewer acknowledge is that when somebody topless a bank robbery by intimidation they necessarily use an implicit threat of force but that language is already covered in the event in the pattern jury instructions so i don't think brewer has any impact on the on the instructions let me ask you about the search of the handcuffed has bearing on whether or not they can reach something within you know their reaching distance in that second category of cases what the robinson decision held and what the this court's decision in johnson to which we cite in our brief held is that one if somebody carrying a container at the time of their arrest the officer is absolutely entitled to inspect the contents of that container without regard to serially to the distance of the arrestee to that can now there is obviously a few boundaries on this the fifth circuit i'm sorry the seventh and then the search took place at the scene the rest within five minutes of the arrest it was certainly appropriate right material to that what kind of envelope what we talking about i have seen when you say that there's a potential of a weapon or something in it we're not talking about the kind of that if the defendant had access to this envelope that the law enforcement might be at some risk you're absolutely right your honor and i should have made it clear in the brief but just to give some perspective this is a white envelope that is so big that he fed ex letter envelop could fit inside the envelope without it being folded so if there's pictures of in the record in the court is interested i would urge the court to look at those because it gives a better perspective than perhaps my brief did of how big it was it was big enough that officer connor who is a twenty five year officer of the fort worth police department believed it was big enough to carry a firearm a blade or some other type of contraband and i don't believe that is so not only big enough but also wide enough almost i mean we're talking about almost like up a box of some sort not quite a would still it's still a paper envelope but i think it is expansive enough that it could hold a great deal of paper so big enough to hold a firearm in off a pond all right would you go back to finish answering the question as to why the government thinks it's also an inventory search sure your honor officer conner testified ages three fifty five and three fifty six of the record that the fort worth police department has standardizing tory policies that in every case they are required to search the  make a listing of what was on the on the law but he did not you know ok so why is that different than a female search where is the inventory search done at the same place and time as the field searches are wasted on a later time unknown maybe at the police station or she was done at the same time and i appreciate that that was that the facts on this are somewhat conflated and not particularly clear from the record but i think based on her testimony that both the fourth police department acquires an inventory search in every case of the personal property  can independently support the officers you don't need to know your own if it's a search incident to arrest we do have the testimony of the officer of sir connor who said she did not feel threatened at the time of the search so that's one thing of course another reason would be the potentiality of losing evidence but in this case i guess i'm asking you because i'm hard pressed to see the reason why evidence would be lost if the scene is secure  why would there be any type of imperative to to conduct a warrantless search of an envelope if there is no threat to the officer safety and there's no fear that evidence could be lost subjective fear is not controlling in terms of whether or not they're permitted to search a container that's found in the course of a certain segment and secondly i think another thing that the robinson court made clear is that in the course of a search incident to arrest an officer is necessarily going to have to make quick ad hoc determinations and instructed courts i think going forward that they shouldn't necessarily gauging the step by step review i think of course bounded by reasonable reasonable notice but the court is not necessarily supposed to engage in the step by step review i do know that officer connor testified at the suppression hearing that it was a windy night and so i think that was the reason that she did not extract certain pieces of evidence from the envelope and left them inside because she had concern that if she did pull something out it could blow away so that's another independent reason for what she did i'd like to also point out a given the focus on the fourth amendment issue even if this court finds that the district court should have great at the motions present that's just as you can see in the robbery footage additionally mr mclaughlin admitted to officer thompson that he used the same robbery note in the course of each robbery now with respect to each individual robbery there's a tremendous amount of evidence tying mr mclaughlin to them as well with respect where that money was going officers responded to that and went to the site of the g p s location finding mr mclaughlin's car in the area engaged in two high speed chases that day and after he abandoned that car later that night on may twentieth two thousand and sixteen the distinct pair of black eye glasses with an emblem on the side and a gray new york yankees cap and it should be noted it's much easier to see that it is mr mclaughlin committing those robberies but he walks into the bank with a white envelope that miss colton said he was carrying as you drove him to the site of those two robberies on may twenty seventh two thousand and sixteen he accomplishes the robberies and then when he was arrested later that night he was found in the great new york yankees cap with the pair of black reading glasses and his officer collar  testified the exact clothing he was wearing at the time he was arrested that taken together with the fact that thirty two hundred of the forty two hundred that was stoned that day was found among his possessions and nights in room one twelve the motel room he rented demonstrates that beyond a reasonable doubt even setting this robbery notice side mr mclachlan was guilty beyond a reasonable if the court has no further questions i will see the balance of my tour are five of these robberies you have five minutes or a bottle is like a letter you would get in the mail it's certainly lore buddy but it isn't the kind of thing that that you could look into and see you know without without manipulating any papers i don't think and on top of that there is an envelope within the invalid and the robbery notes within that so we are talking about really you know a pretty significant manipulation of the pages in order to to take to bring the robber not interview  to judge comments questions i think that this cannot be there a search cannot be both a search incident to arrest and an inventory and the reason for that is that unlike in other areas of the fourth amendment subjective intent of the officer matters in the inventory search context and so the actual subjective intent of the officer must be to perform an inventory and to and to comply with inventory policy and the clear record evidence here is that the that the intent of the officer here was to perform a search of seven to to arrest the most at the government could make of the inventory search here is to say is to use it as a basis of inevitable discovery so the most they can say is that an inventory search would have been performed even if the illegal search incident to arrest hadn't been performed here but then at that point we start to look at the inventory policy and there isn't anything in the inventory posies which suggests that the officer could read the defendant the defendant's medical records in a prominently marked medical record on the only that they could you know perform i'm the kind of search that you would need to exclude contrabands or or weapons there weren't any medical records or there were there were i guess i thought it was just marked medical records but there weren't any in there i believe there were there search as into a rest pages thirty nine thru forty one of the initial brief make quite clear it's not merely that the officer was not in subjective fear of him acquiring the  it's that she had removed property had removed it from his reaching distance about that there are five passages on there that make that point quite clear that he was not getting to that on follow up at the time so it's not merely between the question of whether the officer feared for her safety it's whether objectively there was any reason to think that this was within lunging distance and and it wasn't and and gantt on this point is very helpful to mr mclaughlin because it makes clear that an object might be properly subject to a certain student to arrest at one moment i eat when the defendants in the car are here within reaching distance and then that the scope proper scope of a search incident to rest might change once once the defendant is removed from reaching distance from that from that that situation so i think that's precisely the the the situation we have here as two of my colleagues discussion of harm the defendant's confessions to agent thompson that the mask was blue not white might be helpful to the government on counts three and four they're a very little help to the government on counts five and six where there was no mask use the mask was recovered in the car after count fo and so i don't think there are any help there him saying i used the same note in every robbery you know that says that tells the jury that there's more than one robbery it doesn't tell them that there were four robberies and in any case it probably is a product of the note being seized in the first place and the text of that note matches exactly the text that was described by the tellers and counts five and six the only real corroborated on counts five and six is miss colton who is an interested witness and a hat but they couldn't that there was a other person who left before the arrest so i think it's clearly harmful