there some issues in this case which i'll address first which pertain only to mr mcneil and the initial brief section of the adequacy of the evidence against him we then will break up the discussion of johnson versus united states knowledge dress for the court the issue of first c it looking back now to the trial and the issues that pertain exclusively to mr mcneil bluntly we think that the court should dismiss the counts of conviction against him because there's insufficient evidence in this case a count one the court will recall was a conspiracy to commit armed bank robbery the government elected to reach for that higher level rather than the twenty year count of just a conspiracy to commit bank robbery and charge the higher offense of its peers who commit harming in doing so they increase the burden of proof the government included into its burden to prove that mr mcneil when he joined a conspiracy joined with an awareness knowing in agreeing to the fact that these bankers with this bank robber did he was found guilty of would involve the use of a firearm not just to any joint but is some point the only issue in that town well at some point during the case that the existence of a conspiracy when he joins it he has to join with awareness of nother person not identified as the other robber on december thirty one from maryland into region they park in arlington wait for a while and then leave for days later he's follow from maryland into region with mr started again and now mostly he parks dotted in link exit the vehicle go to a bank robber bank return to his vehicle and that is wells fargo bank exactly and as they are returning to him they had overhead what do you think the wall is you have got what it what is the wall in the government's case there's no evidence for purposes of the conspiracy to commit armed bank your man was a driver he didn't have a gun on me well but more than that but you're all charged with what everybody did a supreme court case that makes the point that for an aider and abettor not somebody in the bank but the eater and a better has to have knowledge before he actually becomes an aider and abettor that there is a firearm involved in this armed bank robbery and to answer your question ju are where we look at it in the light most at this stage in the light most favorable to the government we perform d n a tests on that weapon that revolver that was seized from the home in maryland because link is the alleged robber who actually holds the lobby with a gun and at our request quite a struggle we got d n a test to show when it was tested mr link's d n a was not on that revolver cebes seized in maryland that happen to be a revolver a witness at an earlier bank robbery said that man had a revolver in his hand but well that's nice had but they don't have to they don't have to the jury can decide each count the way it was indeed i was only responding to the idea that that weapon that was a point i was glad of might want to use that to go back to yet they didn't have to charge only that all they have is mr mcneil writing and they have no state from anybody that was a conversation about a weapon they have no statements and that you can go conspiracy from circumstantial evidence you can but you can't pile inference upon him for you can do it you and a weapon that was used in that in what was one of the looks like they could believe was something this group did they found in his home that that all of this mama greatly what i think wrong about that here's what's wrong the weapon was found there was no evidence of that then laying on top the next inference was because you infer he occupied that room on a waiting list that when saying it will mail it when he was there it with mail items in that room right inference is standing alone can be acceptable but when they rely on predicate inferences rather than predicate proven facts you haven't told me any employers that this is not proper years here's the next one ok that he must have exclusive control over that would be the next difference and because he had exclusive control over that room that revolver must have been his then have to have exclusive control over that over his one it is but we don't know who put that revolver there we never have to know that if i go in and out of move to the fourth boss for a quick second because i'm running out of johnson issues and the johnson if you really really focuses on the residual clause and whether that is unconstitutional the force clause is really a separate issue in what we're doing law makes clear that that when we talking about physical force between the pilot is a force capable of injury further we're talking about men and intentional mandrake not the negligent with the inadvertent use of that force which makes sense because you have to keep in mind one twenty have nobody in the court bigger than well they're moving from that framework of what the use attempting to use or threatened use of force is we go to twenty one thirteen the bank robbers that you think that brandishing a weapon in a bank robbery in somebody fire well it could very well be and we certainly can go one better there are many ways one can use force during the commission of a by iran that was valid here because the categorical approach says we're not looking at all the ways you can accomplish it by the use of force we're trying to find out if there's a way that bank robbery can be accomplished with out that use of force required by nine twenty four and woodruff is a case out of this building where the court found that woodruff was guilty of that bank robbery by intimidation where he well no so i don't think it is i would respectfully disagree that the you have to apply the categorical rights which means that you have to look at the ordinary case and the ordinary case may be him going up to the teller arms the p r no it may be coming in and threatening to poison her it could be coming in with five people with guns shooting but what you're doing against a person a property of another that your position of if your view of what the lawyers yes it is an interesting state of the law when if you think anybody in the world over than those of us on the court voice you have to argue to us with everything that the people that a person goes in a bank to rob a bank and with a gun and fires the weapon that anybody in any other context would ever think that's not writ and that is these fences have been used for nine twenty four c is predicates since the since congress added the crime of violence definition in one nine hundred eighty four to nine twenty four c and indeed specifically because there are a great number of convictions just a broad range of yeah right right extends far far beyond just this case is not the most important necessary in this case that's right it was media underlying question of the for intimidation as whether an ordinary person reasonably couldn't for a threat of bodily harm from the defendant's acts those tests meet the hast or physical force and the two thousand and ten  which goes back to the thirty's started using it here avenger e language but then move to intimidation those standards are viewed as the same there was an intended to be a change in the meaning of the statutes and  these intimidation fear of injury have been consistently construed using the common law standards that were explicated asli and in subsequent cases so in light  the differences between nine twenty four c three d and the career of the criminal acts residual odds turning to this case the macneill's argument that there is not sufficient evidence that he knew that you had a gun is a circumstantial case but there is a host of evidence that the combined easily meets the standard for the sufficiency water  there's a series first there's the evidence that all three of them were out casing the wells fargo and bank of america banks on december twenty seventh they started off and  and obviously link has a gun or that last december thirty first robbery he's when he returns to the car after the bank robbery he's got it on his person gets in the car but as that  once they find out something they didn't know so sure i'm just saying in the gun after the fact that they did make a case no it helps that's part of the bigger totality of circumstances and a fact that i think helps a lot is that exactly and he left that house immediately before this robbery and in a room that had his it had male items of clothing and then boil it presented there was a gun that was silver robbery and right before thanksgiving in the robbery in on the thirty first that those were both glocks and so that explains why you could conclude that there was any other male in that house but testimony you know there were there were three other women in other testimony but other male living they were being there know there was none and they also notable is that the gun was found with cash  scalia in johnson aka one twenty four each unconstitutional because the ordinary case was impossible to conjure that's the problem that one twenty four she has that's a problem that may have found in the ny circuit section sixteen and therefore we are reduced to the force cost to determine whether the bank robbery constitutes a crime of violence there's a reason for that that there's a discussion about achatz actions is twenty year old case still good law if you know that it's twenty years old doesn't make it bad l for cases as defense practitioners and as courts trying to decide if he's was a crime of violence whether it was a use of or attempt use or for use of force oftentimes got lost in the discussion because in any event there was a risk of harm for people and so there was this natural inclination just to find a crime of violence now that the supreme court has got that the residual clause force always gets more scrutiny than it used to ever get and it's a more narrow be able by which we decide whether there is active crime of violence in that case sill with the decision of the supreme court under johnson's two thousand and we're still talking about the violent use of physical force capable of harming with an intentional mens rea and the truth of the matter is the fact under twenty one thirteen is  this court has found and woodruff you can by inadvertence commit a bank robbery and you're going to be punished for that but you're not going to be punished for the follow on one twenty four c count if you in at burrton late commit that bank robbery by intimidating the  under twenty one thirteen whether you also bring a dangerous device or not doesn't remove from the equation inadvertent intimidation and because you can always whether it's a bank robbery or an armed bank robbery under twenty one thirteen because you can always commit that hear a little bit with the government for mr mcneil it doesn't matter because the fact of the matter is there's insufficient evidence to show that at the time he entered the conspiracy he had knowledge that a weapon was involved and that was an element of their proof they had to prove that and they did in fact they never proved ever in this trial that big meal knew there was a weapon involved by anybody he simply let somebody out of the car on new year's eve they come back and they're arrested there was no evidence he saw a weapon discussed a weapon handed anybody a weapon or did anything with regard to that back robbery and that was the only bank robbery for which he was found guilty so because he didn't join the conspiracy to commit our back robbery he can't be an aider and abettor under thank the event that we've already had this discussion being in a conspiracy with on a bank because the courts for sentences is mistaken that is what i asked the court to drill down on is you say he's in a conspiracy the question for the court that has to wrestle with this what conspiracy he have to first find that he robbery only i think that what's exactly right because once you are a member of the conspiracy under pinkerton liability the courts exactly right but they went further they got greedy they didn't indict just on a bank robbery conspiracy they indicted on armed bank robbery conspiracy so they injected another element charged with the subordinate conspiracy to commit simple bank and then you discover they were charged with that but if they were charged goes way well there were charges by the way but the dilemma is when you're charged with armed bank robbery conspirac i don't think you did leave out a general verdict kind of guilty of both objects i i suggest to the court what they found guilty was a conspiracy to commit armed bank robbery it did find him guilty of that but they found him guilty of commit bank that spirity had to object well that was a point the government made but we in our brief we pointed out for the court that under didn't cain they don't get to retreat to the lesser included conspiracy theory if they didn't present that to the jury that is they can't really have to that he is evidence that the jury could find that even if he was involved in it he knew these people robbed banks using weapons and then he joined in with them and into the conspiracy under which they committed all bank robbery