good morning your honor is may it please the court as a representative keith leon smith and i'd like to try to reserve two minutes of my time for a battle if i may your honor as either the government had to prove that mr smith had the intent to harm deputy buehler or they i if they didn't have to prove it and indeed they didn't prove it then the aggravated assault guideline should not have been applied his offense at sentencing if they did have to prove it then the jury instruction stating that the jury could find him guilty even if he did not have the intent to injure was wrong and i'd first like to turn to the issue of the jury instruction instruction thirty created a very unnecessary confusion for the jury about what kind of intent mr smith had to have at the time of the incident by instructing the jury that mr smith did not have to have the intent to bodily harm the deputy the jury could easily have convicted mr smith if he had no intent towards deputy beeler which mr smith indeed had no intent towards deputy feel his intent was simply to get away was in this issue properly preserved the instructional air was properly preserved we what is the what was the objection raised below compared to the argument that you're now raising on appeal the the objection raised below is actually  similar instruction thirty the the defense counsel stated over and over again was confusing it lowered the burden of proof that the government had to prove mr smith mens rea or the defense counsel repeatedly said that the ninth circuit has affirmed and indeed the united states correct that the jury did not need to find intent to bodily harm but they did need to find intent to frighten and intent to assault your honor so they had to and they had to find that he an intent to frighten him and by saying that he didn't have to intend to cause b injury the jury could easily determine that that meant that they didn't even have to have any sort of intent towards deputy bill or why i mean i can imagine someone intending to frighten someone by running up to them with an axe over their head even though that person really is just playing a practical joke before halloween they may have had an intent to frighten but they never had an intent to really cause bodily harm and when you do that to a federal officer why it's not a violation of the subsection except that they were never instructed that he had to have an intent to assault them right the interest twenty nine said he had to intentionally threaten another and then it was modified by instruction thirty by saying he didn't have the intent he didn't have to cause bodily harm but i'm not i'm not following the because the dress been told you have to intentionally threaten they don't have to intentionally carry out that threat but you have to intentionally threaten what's wrong with that instruction because you can intentionally threaten someone without having intent to frighten them or put them in reasonable apprehension of bodily harm and think that's the definition of threatening it threatened i think you can threaten someone in many many ways and mean that the circuit is even how you can communicate a threat without actually intending the threat and so the idea that a person can incidentally drive past someone and complete no intent towards that person and somehow that be transmuted into an intent a threat just based on the apprehension of fear of the officer without let's let's assume that the jury instruction was a little a little confusing or it was a missed clears it should bureau statements that the defendant stopped twice saw him and was angry and that would imply that he actually knew the position of deputy bueller at any point during his quick backwards and forwards interaction now this again was in deputy bueller's testimony alone all of the other deputies that testified that day said that mr smith never stopped in fact it was all one quick backwards and forwards motion that happened in two seconds they weren't even able to get out of the car so the idea that mr smith stopped twice saw the deputy knew his location intent whether he was intending to threaten or whether he was unfairly and correct and when the jury instruction though than stella's them that he didn't reduces the government to burden of having to prove whether or not mr smith had an intent towards deputy buehler specifically i think it permitted the jury to convict him even if his only intent was to escape justice deputy buehler perceive that escape as threatening even if mr smith himself did not have that intent that's how the jury instructions therefore harmful to mr mr smith's entire defense which is whether or not he had the intent to actually do anything towards deputy bill or that's your position yes your honor and if there's no other questions on the instruction or i would like to turn to the aggravated assault guideline and the application therein and you know i understand that your honors may believe that an intent to frighten sufficient but it's a further jury instruction but it's or the instruction was sufficient about that although again i would argue otherwise under the aggravated assault guideline the government clearly had to reduce more evidence that he actually had the specific intent of bo written bodily harm and that threat involved a dangerous weapon so going back to my analogy hatchet a dangerous weapon if i come after you with a hatchet even though i only intend to harm you even though i only intend to threaten you are not actually bodily harm you then why wouldn't the aggravated assault got mine apply there i have intended to threaten you and that threat involved a dangerous weapon so under the aggravated assault guideline your honor in specifically says in the then the aggravated assault guideline for simply could not apply to his his can his conviction and so what you're saying is that even if the jury was properly instructed if the judge in applying the guidelines and a preponderance standard came up with a fact that was not in the judge making that finding as part of applying the sentencing guideline under a preponderance standard yes your honor i think there's a problem with that is there usurping the jury's verdict and the jury did not find that there was bodily injury in this case and do not find and were required to find th  the morning your honor as may please the court my name is in your anthony and i'm an assistant united states attorney representing the government in this matter i plan to spend the majority of my time addressing the jury instruction issue your honor and i want to start by stating that intent to assault is divisible into attempted battery and it and intent to frighten a solved this appeal rest solely with the intent to frighten assault but the appeal appears to be premised on collapsing the two and importing a specific intent to injure or require mint into intent to frighten  does this i think in two ways first the defendant asserts that the jury was not at all instructed about mens rea but that's not correct your honor and i'll get to that secondly the defendant claims again without support that the instruction that the instruction provided by the district court rock this is an instruction provided by the district court about intent to frighten assault was incorrect because assault requires the intent to injure and i'll get to that as well your honor but i think it's important to consider the practical implications of this which would be to essentially eliminate intent to frighten assault including what this court has referred to as the paradigmatic example of intent to frighten assault which is waving and unloaded firearm at an officer importing an intent to injure requirement would completely get rid of that off things entirely so assuming you're right wouldn't it then be incorrect for a district court to applying application no one on the guideline for aggravated assault guidelines to find by a preponderance when the question was moved before the jury that there was an intention cause bodily injury no your honor i don't blunstone think there are a few reasons first of all as your honor noted it is a preponderance standard at sentencing second there was plentiful evidence presented to the jury and just because the jury didn't specifically find that there was an intent to cause bodily injury doesn't mean that that evidence didn't exist the evidence presented at trial was substantial defendant is citing to a selective rendition of facts making it seem like there's some doubt about whether the defendant drove directly a deputy bill or but there there was no doubt what was the evidence at trial that would allow the judge making a preponderance determination to find intent to cause bodily injury the evidence was testimony deputy beeler get out of his get out of his truck and walk directly to the front of defendants then then all of the officers testified that they saw the defendant drive directly at deputy beeler and several of them testified that they saw the defendant do that without swerving and isn't that entirely consistent with the intent that i assume the deputy is going to jump out of the way and then i have a free path to escape absolutely could be your honor but those two are not mutually exclusive the intent to injure and the intent and the intent to escape are not mutually exclusive when when a defendant has an officer standing directly in front of him one car distance away and makes the decision i want to escape that doesn't the objection and sense of well first of all your honor i think it's unclear that there actually was an objection at sentencing the the the first position that the that the defendant had was that the court should consider applying a different guideline section and then the the defendant went ahead and explained why the dangerous weapon enhancement and the aggravated assault guideline applied and then at sentencing itself the defendant abandoned the argument that the obstruction guideline applied and actually just went with the aggravated assault guideline and a dangerous weapon enhancement so i believe that any argument that the aggravated assault guideline shouldn't apply has been waived and the dangerous weapon spend objection wasn't raised at all defendant affirmatively advocated for application of it that was against that was in order to avoid the application of what  o avoid the application not some profiling or honest question he said the defendant argued for the application of that guideline was that that was and that was the strategic choice ace of it appears to be it appears to be were defending was it was it was a strategic decision to to add to the point i was responding to that your honor raised some of the most compelling testimony was from deputy bill or himself who testified that when he got out of his truck he stood one car length from the defendant he looked up the defendant looked up they made eye contact he saw that the defendant looked angry that incidentally was corroborated by the defendant's post arrest interview where he said he was angry and wanted to get out of there the forensic evidence also shows the dead two shots were directly in front of defendant's van including one of them that was fired at a slightly upward angle into the foot which is consistent the forensic examiner testified with a shot falling backwards as deputy below testified he was doing falling backwards to get out of the way or defend his oncoming backpack your guideline argument would was would the defendant have been worse off from a guidelines calculation perspective under the obstruction of justice guideline i don't believe that the case your honor i think so i'm not understanding why is this one was this an intentional waiver will move away from structure of justice but he concedes the aggravated assault on i would submit it's because the evidence was so clear at trial that twenty nine which was and in an argument which was a jury instruction that was actually proposed by all of the parties both by the defendant and by the government it is the model rule instruction on forcible assault and the defendant below said that it perfectly captured all theories of assault he also said that it was a clear and accurate statement of the law that includes all the proper intent requirement so to the extent of the defendant is now arguing that the jury was not in about intent he was that's not correct it said intentionally threaten but that argument is also waive your honor there's no way to square those there's no way to square those arguments i do want to touch though on the substantive argument assuming that the court reaches it the jury says that says that only the defendant says that the jury was never instructed of about intent obviously they were the requirement was intentionally threatened but i d but the defendant points to across the sierra repeatedly for that support i do want to address across the sierra because i believe that there is a misreading of a costa sierra unconscious here and they explain that it was decided at a time that the model instructions said merely that for there to be a forcible assault there is a forcible assault when one person and i quote makes a threat so the issue in a casa sierra was not whether specific intent was required it's whether any intent was required because makes a threat is something that could be done intentionally or unintentionally and so what it costs us here a decided was that some intent was required a described that as the intent to assault and also as the intentional use of force both of those exist here so just to just to go to what the jury was instructed  they were instructed that they had to find that the defendant forcibly assaulted and then they were instructed that the that there were three types of forcible assault and each one had a separate mens rea a requirement i don't believe the court needs to get into the specifics of whether this is a general intend or a specific intent statute because the defense because the jury was instructed that intentional that intentionally threat and intentional threat was you your honor i just like to use the time to address a few questions that came up including that mr smith actually never said that he saw deputy bueller standing in front of him ever in the course of this post or a statement in fact throughout his post for a statement he said he was standing off to the side he was in in front of me i didn't hit him i didn't mean to hit him is he actually choosing me of hitting me hitting him what he actually seemed surprised that that was the accusation was being faced with again because he did not have the intent to harm deputy bill or he had no their sentence the object the obstruction of justice guidelines is significantly lower than the aggravated assault guideline and defense counsel's arguments at even the sentence position paper and during the hearing really meant to say we understand that eighteen u s c want to levon is one of is listed as one of those you know sections where an aggravated assault guideline has been applied to it but they're still inviting the court to apply the obstruction of justice guideline and the obstruction of justice guidelines sixteen months lower than the aggravated assault there is i mean the  and level off doesn't even compare so there is absolutely no strategic reason why any any defense attorney would give up that argument for the saving of one of like i think ten or twelve often levels to say one offense level and so i you know to the extent if this court holds its weight i would argue that that's definitely ineffective assistance of counsel but it's not waived because once again at no point to be attorney stand there and say i'm giving up my argument that the obstruction of justice guidelines should not apply to this offense relinquishing all right to  the application of that guideline they never said that and in fact invited them to argue and stated that he didn't have the intent to bodily injury and asked the court to respect the jury's verdict to that effect where the jury did not find that he caused partly injury and again back to the jury instruction an intent to a stop salt still requires the jury to find that he had the intent to put deputy buehler in reasonable apprehension of harm so to your example a judge time in where you know a hollowing cost and they're trying to frighten someone if that's a federal officer that wouldn't count because they're not actually intending to put that person in a reasonable apprehension of fear for their life and that's sort of the in what the intent to assault at a cost to sierra was trying to capture in your overtime ok thank you