expressly listed in the discretionary restitution statute the v w p a thirty six sixty three that's an indication from congress that restitution in a case like this is supposed to be other than an offense set out in the m v r a but they did so with specific reference to this statute the amending language says after four six five zero four of title forty nine insert intended it to always stand under the m v already and of course the government has never pointed to any type of situation when discretion would ever when restitution would ever be discretionary in a four six five four case and that would is over whether the restitution award should be twenty two thousand dollars or more like ten thousand dollars but that's clear ok and your position is that if the district court had considered the restitution under the discretionary provision and might have brought the number down to a five ability to considered it under the mandatory provision under a view that i believe the government has now disclaimed that it was enough that there was an identifiable victim i think unitary was that was enough to get you to the mandatory vision that's my reading of what this record i don't specifically i read ok so is there a reason we shouldn't just send this back to the district court and say look you got this wrong you need to figure out whether it was a crime of violence and also maybe whether you're inclined to whether this makes any difference or whether you might order the same restitution award under either provision anyway is there a reason this seems like there was an error below is there a reason we can't send this back and make sure it makes a difference before we get into all of these questions about what's a crime of violence in the residual of that well we'll certainly be happy with another opportunity to argue before the district judge but this is a purely legal threshold issue about whether the judge can take these factors into account at all and i think it would almost be something of an advisory opinion for a judge to say well if it if it weren't mandatory i might consider this and i might find these certain factors so i don't think that's necessary here certainly that is a way to resolve it that that we would be satisfied with but it is a legal issue of statutory construction and this is a statute that's not infrequently the sections that say if it's a crime of violence and there's a victim that sort of kin leader bikini or loss yes that there would be a requirement and the government has argued on that theory the d c circuit has found that that's the case and that's really the only  statutory construction that makes sense with the word and there in the statute because otherwise you would have a situation where something could be deemed a crime of violence or one of the other enumerated offenses but there's no l s and the judge would be required to impose restitution so it's kind of a nonsensical standard and so that's why it has to be kunj on to for both of those to set out and again that was something that the government argued mistakenly below but i believe they have effectively conceded at this stage your honour's can you give me an example world how well a person can a soul or intimidate crew member would out a threat of violence yes and there are plenty of cases where that happens and it typically comes up in the situation where the passenger creates a disturbance or does disobedient perhaps violate some rule like smokes in the lavatory and simply refuses to obey the flight crew member's instructions and those cases do get charged under this statute we pointed specifically to the hicks case from the fifth circuit which is a case where passengers on a plane would not turn off the radio and were being very loud and using profanity towards the flight crew member and there was never any sense of of a threat than in fact the fifth circuit found that this statute does not require a direct were even a very old threat in order for there to satisfy the statute on the guilt lady case which is a four circuit unpublished decision involved the defendant thought were comparable cases to aid the judge in determining a sentence but there's a case called our back from alaska i can provide a citation if you'd like where a diff passenger rose running up and down refused to get in her seat and was simply so disruptive that the flight crew decided to divert the airplane and i what's the theory in these cases because i think everyone agrees right that intimidation means for intimidation you have to show wor conduct that would give a reasonable reasonable person fear for bodily safety and so is the idea that passengers are reasonably afraid the plane is going to crash is that what's going on i think that's the chain of logic but the inference is that if the flight crew member  not able to perform his or her duties but that could have complications down the road but of course endangering the aircraft is not an element of this offense it's only interference with the duties so it could be something as minor as not being able to serve drinks in a timely fashion  and i can provide this our purpose is rightly we have to look at what the statute putting to one side by their failures of proof in individual cases we have to look at here is what the statute requires words or conduct that would give reason a reasonable person fear for bodily safety and compare that to the four squads right so i guess i'm asking you  how can something put someone in reasonable fear for their bodily safety but not be not involved as of course well for two reasons one because the force close requires the use of vio physical force on the part of the defendant that's of course not required here and intimidation could just be that someone is a large hulking individual that simply scares the flight attendant by his very stature or presence or the fact that he's disobedient and so what we have to keep in mind is the purpose of this statute is to prevent that interference and so i think the way that we would define it is intimidation is words or conduct on the part of the defendant that have the result of putting a reasonable person in apprehension that who do these might be interfered with but so you don't think it requires fear from bottle e c i don't think so which is sort of a downstream effect and it's not required under the statute as as an element of the offense and so that's again i think we have to keep in mind the overall purpose of the statute when we're constru real what we might think of colloquially as intimidation would be covered by the assault statute as threats to do bodily harm and so that's why i'd like to i'd like to also focus on the court's attention to the predecessor version of the statute we discussed this a little bit in a footnote in our reply brief but in the original version of this statute was at thirteen seventy two of title forty nine and it set out a real laundry list of all kinds of aviation regulations and offenses and since then it's been editorially so spread out into several different individual sections but the cases continue to construe the statutory language the same way and in the original version of the statute the immediately preceding subsection this offense was fourteen seventy two j the immediately preceding section was fourteen seventy two ah i that's now four six five zero two which is aircraft piracy that statute says that aircraft piracy is taking over an airplane by force or violence or threat of force or violence or any other form of intimidation and congress intentionally added that phrase any other form of intimidation to be something different form force or violence or threat of force or violence and so that's an indication that in the original statute in an immediately preceding subsection congress  something other than a threat of force or force or violence and there's no reason to think that just because it's now spread out into different subsets is sections for readability but those definitions should mean anything different  and so that's why the government's relied some cases like mcneill are really in opposite here because mcneil is written completely differently to the bank robber statute is written differently to juxtapose intimidation with force or violence where is he or it's it's clearly set up to be something different and the the the language of those statutes is different but this what is said in cases distinguishing macneil for example the most recent winston case there was decided just a few weeks ago from the court that he really depends on what the statutory language is and it has to be reading context and so the context of robbery or carjacking statutes like the ones that were at issue in mcneil were evidence really matters and so even another robbery case might not follow the same definition of fear or intimidation and here where it's a completely different stash tory scheme a completely different statutory popov this that will really should not be dispositive for our case and of course all of this is depending on whether the statute is divisible in the first place  involves a threat of force or violence and the cases are very clear that even simple assault what would effectively be misdemeanor assault on the ground is covered by the statute and so if the court finds that this is an individual statute we think we would that's correct and there's a case from the eleventh circuit dealing with the air piracy statute that i just discussed that's a case called figure roa that specifically said that those are i think the exact language that uses different ways of different means of violating that statute and so the government relied very heavily on its charging decision then this and other cases to say that that indicates that this statute is divisible and there are two important reasons that that really can't carry the day running is it's not the government's power to describe elements of offenses are so from a policy standpoint that's really not appropriate and then at the same time  defendant has no incentive to object if the government decides to narrow the grounds for conviction and to elect one means versus another and require jury unanimity as to that means versus another and so when the government makes that charging decision that's your choice but that doesn't necessarily redefine the statute can i just ask you could i totally understand what you're saying about that but as you square that with the thing in math that's about what maybe take a peek at the charging documents be reconciled yes because that comes at the end if everything else doesn't give us any indication the statutory language legislative history the case law if we really can't tell then we can take a peek at what the government does  and of course so we think that that puts a cart before the horse to let the government look at that first and say that that this is going to be dispositive but then as a larger matter we think there are plenty of cases where this is treated as means even if we want to look at government charging decisions and i think the good lady case very clearly sets out that element one is interference and element two is by assault or intimidation  discretionary line if its view was and every single case is actually going to be under the mandatory i don't know that congress had the view that in every single case it's going to be in the mandatory when i can pick up that determination up to the court your honor so just to give you a little bit of background it but i don't understand how you can reconcile the statutes with without the the phrase other than an offense described in three six six three has to have some meaning and so clearly what congress is trying to say is that you have our position is that the v w p a a prize because there were thirty six five in first expressly listed in that statute they didn't say anything else now we're going to appeal they're continuing to make that argument and so they properly preserve that argument and i believe that the court could consider that under an abuse of discretion standard but on appeal they're making a new argument for the first time which is actually their real argument their argument on appeal is that the v w p a prize because thirty six five zero four is not a crime of violence they never said that before all the district court before as long as we're talking about arguments are maybe for the district court and maybe are not being made here am i right that in the district court you argue that i don't have is you personally but that the government argued that the mandatory provision appl argument they never made the argument that the n p r way does not apply are that the d w p a a a prize because thirty six by before is not a crime of violence they didn't raise that argument for the district court so that argument should be reviewed for plane air not under a plane or standard you know under any standard i don't think the court erred in determining that interfering with a flight attendant by intimidation is a crime of violence but certainly it's not clear obvious under the well that it's a that it's not test for determining whether statute is the visible i understand that case i'm so incredibly difficult to follow and understand but justice kagan set out a very clear test she said first you look to the statute itself the statute itself could give you clues for example if there were she went on to say that but the case the statute in the case for all are clear and you can't figure it out from the session a case that you get to take the turkey peek at the underlying underlying documents you get to look at it but the charging document but please remember th jury instructions that was kind of the test and she said and at the end of that analysis she said no after going through that analysis it should be pretty clear in this case the statute doesn't tell you one way or the other whether it's because of our whether it's the principle or not the five ten and went back to explain to him that he need to stop smoking he grabbed her and jerked her and not their head in the in the bulkhead and cause some injuries and he was charged with assault assaulting threatening or intimidating a flight attendant and during trial he was acquitted of assault but he was convicted of intimidation pong and so on appeal he made the argument that the evidence wasn't sufficient for the intimidation prong because the jury rejected because the jury rejected the assault charge they must have rejected the allegations that he assaulted the flight attendant and he just you know grabbed her and threw into the boat head and so all that was left was you know the discussion that he had with her and that was enough for intimidation equipment rejected that argument but that's not with them what's important is that in that indictment we never mentioned assault in the in the police colloquy so under mathis yeah it does i mean i took i understand what you're saying i said it is hard to make sense of this part of mathis this kind of like piece that's not cutting is there something i'm missing about math as that makes this a sensible approach i mean is there any answer to what to what appears to follow as the argument you're making that it is entirely up to you from now on whether this is a divisible  not simply by how you whether you want to write what might well be means into the indictment as a prosecutor your honor if these things are just means and not elements there's no reason for me not to charge and put them both in the i always charge both and then the jury will be instructed it's charging the conjunctive but the government can prove the disjunctive can or it doesn't have to prove beyond a reasonable doubt one or the other it just matters that ever if you decide that when you're going to both were satisfied so it i think i know a lot of cases courts have determined that statutes are invisible because they look at jury instructions and they see kind of the first jury instruction that you get when you get to an offense so if you charge this offense and at trial the judge would issue an instruction that says the elements of the this offense and he would go through the elements of the offense and really all he would do is take the statute and kind of put them into categories he wouldn't really identify whether there were elements or conjunctive we can prove a destructive as long as you well agree unanimously beyond a reasonable doubt which part of the statute the government has proved was committed here and at many of the cases under three six five before the government is asking for that instruction so if the idea as far as whether intimidation in the government's view this is the principal statute and the issue here is whether or not interference by intimidation is a crime of violence i think under a very straightforward application of the categorical approach this is clearly a crime of violen minimum conduct covered by that statute and then you determine where the minimum conduct meets meets the definition importantly in doing that you look at realistic probabilities not theoretical possibilities and if the defendant is going to say that a statute cover certain conduct to be realistic probability he's got a point the facts of his case were the facts of some other case you can't just come in and offer hypotheticals to the court in this case intimidation is no question that intimidation means were to conduct that  reasonable person fear bodily harm i've no idea what defense counsel is now saying that will argument about how that is not the standard it's the standard in meeker it's a standard in every single case no one has ever said that the standard for an intimidation under this statute is anything different from be an especially reasonable kind of issue when you're talking about plain safety where someone will turn off his boom box the plane may crash and so you may be very worried about your safety but only for failure to act failure turned off of  the defense can offer up hypotheticals that are unrealistic you have to look at realistic probabilities not theoretical possibilities and no one's ever been convicted under forty six public work for releasing snakes on a plane or poisoning food in every case it's been typically for people acting aggressively towards flight attendants whether that they're drunk or not they're screaming or yelling they're using profanity and they are acting in a menacing manner that causes the the for a reason the person the flight attendants position to be scared of a bit of a  they're going to do some crazy and cause the plane to crash but that the doing create something create this is what i'm concerned about it seems very reasonable to me that you could read this language about intimidation to cover doing something crazy that would make a plane crash but that is not necessarily going to involve physical force it could just be opening the door of the airplane and then people would very reasonably have a fear for their bodily safety it doesn't seem far afield people do act crazy on planes this is not some kind of fanciful hypothetical you could be convicted of intimidation because you reasonably made people on that plane think the plane would crash but you didn't apply violent force as johnson understands that if you look at a plane on it but you open the door of a plane that's in flight you are absolutely going to be convicted the common law definition of force which is what the us to disregard another panel's decision in the circuit let's be clear about it like are you telling us that we should no longer look at that case in light of castleman if the court is reading inter personal to say that in the record use of force and never be covered  gun in the bullet hits you in the head but that would be the use of force two and you would just say that i didn't punch you i pulled the trigger i didn't use any force thank you your honor just a few brief points in rebuttal first with reference to the to baka case we don't with that in the reply brief we think that that's not the best reading of what happened in that case the district court clearly said with respect to the second element of the offense the government must prove that the defendant knowingly and intentionally performed an act of assault threat will intimidation we think that's an indication that then we don't have  complete jury instruction so i would just rely on a reply brief with the baka case with regard to whether this is preserved or not we preserved the claim they were the issue we may have modified it clarified our arguments in support of that claim but our claim all along has been that west to to sion is discretionary in this case and the only way it would not be discretionary is if this crime is a crime of violence and so we're really talking about at most two sides of the same and then just very briefly with regard to whether there are realistic cases where people could be convicted of doing something very minor that might be on the level of refusing to obey a flight crew members instructions we've cited the hicks case the mimms case where the person did something that might indirectly cause problems with the plane but it was not a direct application of force and then there's one final case i apologize for just discovering yesterday and i can submit the citation to the court i'll do that when i get back to my office it's a german name that i have little trouble pronouncing the citation is eight forty one one one six nine a southern district of florida case where a gentleman person on a flight from florida to germany got up and tried to use the restroom when he wasn't supposed to be up and got in a discussion with the flight and tenet and used a german colloquialism to the effect of if i don't go to the restroom the roof will come off then the flight attendant took that to be a reference to a bomb even though he never said bomb never indicated anything about a bomb thought that those words the roof would come off meant that he was threatening the airplane they diverted the airplane that person was convicted under the statute that's about the most minimal conduct that that i can find anywhere but somebody this is a realistic case it's not a hypothetical scenario out of a movie or imagination that somebody who has a conviction under this statute for doing something that completely indirectly was taken by the flight attendant as something that could cause bodily harm if the the statutory argument we're not trying to read the other day and language out of the statute d v d b p a it is very broad and says any offense under title eighteen were these other individual statutes and then as amended by p r a says other than an offense in the n p r a and so the other then language is still operative because it would take anything out of title eighteen that is a crime of violence or any of the drug statutes that might be determined to be crimes of violence or any of these aircraft statutes like the air piracy statute that might be considered a crime of violence but we think it's at least some strong indication on congress part by leaving this statute in are when it could have very easily taken it out that it did not indicate that it should always be treated as a crime of violence and the government really hasn't done anything to say that this that language in the statute would not just be