for violating section one hundred and twenty four c should be vacated because the courts jury instruction on that count did not describe a federal crime to prove that a person violated section nine hundred and twenty four c the government  demonstrate that the defendant used the firearm in relation to a federal crime of violence in this case the indictment identified violations of section one hundred and fifty nine alleged in counts one and three as wide for any case not so fine a night nine hundred and twenty four seat case or a situation where a court did not describe a federal crime in its jury instructions and we were unable to find a single case where a judge or a judge failed to describe a federal crime now what was what seemed contemporaneous objection to this so it's  think and if it's plain air and you can't find any case on it that that doesn't bode well for your argument am i correct if it was plain error but your honor a federal court cannot enter judgment judge was never told that i understand i i was in the trial judge and i mean the trial of the trial and trial lawyer and i don't know why there wasn't an objection but there wasn't but st principles state that in order to be a judge guilty of a federal crime and be sent to jail for a federal crime you have to be found guilty by a jury of a federal crime and for whatever reason the court  told the jury as a matter of law that the new york state crime of assault with a dangerous weapon was a crime of violence and we all know that's not true not accurate ready i don't know why the  prosecutors with that in their proposed jury instructions the judge repeated it both at the beginning of this jury instructions and specifically one he charged in one hundred and twenty four c violation i have no explanation for why it happened it and i i just can't see how mr matthews can be sent to jail or conduct that the jury found him guilty of it wasn't a federal crime if it's really it's in the most unusual situation i've ever seen and i've been doing this for a long time there's no suggestion that this kind of crime could be committed recklessly correct this crime can be committed recklessly and if you use a categorical approach you look at the minimum conduct required to commit that crime and i say in vermont as crazy as it seems it's negligent conduct in connecticut in the york it's reckless it's just to go back to just jacobs's question are you are you arguing because it's not clear that that is playing there or are you arguing something to the deficiency in the instruction or are you arguing some sort of a structural war from then all other just like my primary argument judge is that the court didn't have jurisdiction to enter judgment on that count because the jury did not convict a crime nd argument is that there was a structural era because it affected three basic tenants of constitutional law one you have to be found guilty guilty beyond a reasonable doubt of the crime in which you wasn't because we know that the fundamental jurisdictional element wasn't in the courts jurors in the courts charge to the jury have to have have to follow the court's instructions on the law and three and charge by the judge could not have convicted him of nine hundred and twenty four c because the jury was not given that element of the crime and it's a real problem and if you the government and its brief suggests that assault with a dangerous weapon is categorically a crime of violence regardless of the state offense charge and if that statement is accurate if that statement is in their analysis is accurate to strike that part of the judgment and remanded to the court for the proceedings primarily to readjust and sentence because he received the ten year mandatory minimum consecutive gentilly i'm an assistant united states attorney for the southern district of new york i represent the government on appeal and i represented the government before the district court with the court's commission i'm going to turn st t conviction was not properly predicated on a crime of violence matthews argues that count three the assault with a dangerous weapon in aid of racketeering probably does not qualify as a federal crime of violence because it cross references five sections of new york state penal code including a section that encompasses medicine which falls under penal code section one hundred and twenty dollars subdivision fo but matthews was convicted of a violent crime in eight of record cheering namely assault with a dangerous weapon in violation of penal law section one hundred and twenty point zero five subdivision two and that's the date difference your honor we know that by car statute and the new york state penal code with respect to assault with a dangerous weapon is the art of visible a modified categorical approach is appropriate here is allows the court to examine the trial record to determine which statutory phrase form the basis of the defendant's conviction including jury instructions verdict forms and transcripts all of which are relevant here as recently as february of this year  but he was convicted of count three which is the other vi car count which is forms the basis of the nine hundred and twenty four dollars c charge judge so he was convicted of a federal crime a federal crime encompass is an examination of new york state penal code and that that was expressly each of the viper counts were quite proof of violations of state law nearer state penal code which i just discussed but the vi course statute express charge the governor has to prove that attempted murder or assault with a dangerous weapon which we were required to prove for additional elements so the defendant's argument that there was no there was no federal crime committed and that the court had to have no jurisdiction as a result really it just fails on its face but even if it were any error in judge atkins shorthand descriptions of the attempted murder in count one and the assault with a dangerous weapon in count two there's no evidence that it was plain error and he cites no legal authority as your honest point that because there is not there has been no court in this country that has negated of my court can based on the fact that they had to prove a state charge the statute expires expressly provides for i think your emissaries argument is that there is no such case because it's not conceivable that there would be such a case that somebody would be convicted on this without having committed a federal crime i think end of the road yes you're here each one of you is drawing a different inferen the judge in this case with the charge i would i would i respectfully disagree with my adversaries assessment or or evaluation of that that there have been there have every by car routinely incorporate stabler charges as the statute itself so to say that there is no he's he's trying to prove a negative in other words that there are no cases that overturned a bike or a conviction on the state law charge clearly that's true because the statute itself permits the state board charge to be incorporated as a cr with respect to the defendant's other arguments regarding the doyle violation the argues that the district court committed plain error when it did not sue a spontaneous issue of limited instruction or preclude witness testimony about invocation of his right to counsel but using the standards invoked by the supreme court's decision in the miller as guy posts an isolated reference to matthew's invocation of his right to counsel during the testimony of a single witness does not amount to a violation of the th amendment as he argues for one thing defense counsel didn't object he didn't ask for a limited instruction there were no additional references to his indication of the right to silence slaves exchanged consists of two lines at one thousand two hundred and eleven dollars pages of trial transcript and more importantly judges it wasn't used to impeach an explanation offered by the defendant during the trial moreover mister matthews wasn't prejudiced by the brief testimony because it wasn't used for any adverse purpose nor did it add to the strength of the government's case which was i would say overwhelming with respect to the defendant's argument regarding the frank's hearing he argues that the district court erred when it denied his request for a frank hearing in connection with this motion to challenge the validity of a search warrant affidavit for a that phone that appears nowhere in the search warrant affidavit notwithstanding the defendant's repeated reference to that quote all the phone all the technical said was that it appears to be the same subject  device that appeared in the video in other words he was expressing his opinion about the subject cell phone and he did this after reviewing the videotape and after reviewing and examining the physical cellphone that was taken from the defendant when he was arrested a couple of months later rather than provide an affidavit himself the defendant had his attorney provide an affirmation in support of his option and that affirmation challenged the identification of the subject cell phone on the basis of the security camera footage it tony affirmation made no reference because he could not he did not examine the physical phone because a physical phone was in the possession of the police  it wasn't based on personal knowledge there was no indication that he had any st hand knowledge about the cell phone that the defendant was using in the video and as i said before he was unable to examine the physical phone that was taken from him  you look at the if you look at the video and the video reflects that there's a cellphone with no no salient or detectable features that would that would cause a question as to whether the detective looking at the same video could conclude that that that that the phone that appears in it is the same as the one that the nd hasn't been well i would suggest your honor that since the detective looked at both the video and the physical device that he had in front of him and was able to make that comparison as opposed to someone who looked at only the video had no idea of what type or what type of cell phone was seized from the subject when he was arrested it's difficult to make a comparison when you're only looking at one vice and i would suggest that the tectum scoles examination is much more accurate and and should be afforded much more  but even if even if detective cole's identification was was in correct he does not come close to establishing that the detective intentionally misled the court or recklessly disregarded tru it was just the detective's opinion that he offered and even without that opinion it was sufficient probable cause for the magistrate to issue the warrant the subjects cell phone was taken from the defendant when he was arrested two months later he was seen using a cell phone in the video and he was seen using it know his testimony that he used it in connection with the shooting that occurred on october twenty there are other cases we cited in our brief one is united states  a district court found that such a connection that identical connection where a cell phone was used was you get a video and it was also a cell phone was taken from a defendant at a later time that was using connection with  crime was sufficient i had sufficient probable cause to establish war on another and on another point what what could justify eliciting from the detective that when the defendant was was a passing reference and it was a mistake that wasn't material to the case it didn't prejudice the fact that the way as i went through the steps before the doorbell factors that we are factors one passing reference in  there was no request for a limiting instruction to the jury but you would you would agree the record question a limited instruction would do more harm than good might it i mean i can't get into the mind of the defense counsel judge i can only tell you that it wasn't used to impeach him you don't have to go very deeply into the mind defense counsel to say that that when when a potent statement like that is a listened in the last thing you need is that the judge underline it and repeat it and then send don't don't pay any attention to well i would also add and point out that there was no objection during the exchange as well i'm so i began as i can't get into the least in my mind set and set aside the standard of of you for a nd can you hear me yes or with respect to whether nine hundred and fifty nine is a crime of violence it appears favor that correct what what the what the but the court said that you can that can fit in this count unless you determine that the defendant is guilty of one of the predicate federal indictment i understand your honor but there are a court only has jurisdiction to enter judgment on a federal crime if the jury found the person guilty of a federal crime that's what makes this case so unusual i'm not saying that the court had no jurisdiction to adjudicate the issue but as charged to the jury the jury could not possibly have found him assault with a deadly dangerous weapon was a crime of violence and we know it isn't it can't be never in a one million years because it requires a federal crime of violence and the jury could not have convicted wide for a case that came anywhere near this word a judge a federal judge failed to properly instructed jury about the elements of a federal crime and we can find a single one what if what if the underlying conduct is conduct for which the defendant may be prosecutor in a court of the united states but was prosecuted in a state court you're saying you're saying that even if even if that even if you can a time of violence i could be prosecuted in just in the say court or in the united states court that this is only referring dollars it takes a different tack and it says commits commits a any number of crimes including a phone with a dangerous weapon in violation of the laws of any state or of the united states so that encompasses both state and federal crimes and the underlying federal crime of violence in this case would have been the nine hundred and fifty nine  but for whatever reason and the u s attorney's office still does not explain this why they chose to propose a jury instruction that referred to a state crime of violence to the prosecution's argument but i think you think it's a categorical crime of violence following the six so it's analysis and then they they they said oh no you can use the modified categor approach but they waive that argument because they never made it in their brief they ask you to find that it was a categorical crime of violence that's the single crime so those are the elements and we know that assault with a dangerous weapon doesn't have to be committed with intent to cause bodily injury that's the it isn't because it can be committed negligently in vermont and reckless in connecticut and new york and i'm sure throughout the country there are probably similar similar statutes because firing  because in those situations with our criminal the the the court can look to both prior federal and state convictions to see whether or not there are been prior crimes of violence committed if you use the categorical approach if a crime to get can be committed recklessly for example as crazy as it seems the th circuit how the federal murder can be committed recklessly and is not categorically a crime of violence i don't know what the parties argued and walker but i know what i'm arguing here and i'm arguing that a categorical approach means that nine hundred fifty nine exactly what new york law prohibits and which the new york courts have said is reckless conduct and if you just want to scare people you can act wreck of recklessly to scare people you don't you don't have it but it's  and i want to scare away a rival group that's on a different corner and i just fired gone in their direction with no intent to cause physical injury that's reckless