take your time our second case is united states versus edwin that shows your case number sixteen that one one seven three seven good morning may it please the court katie carmen assistant federal defender on behalf of edwin dish a shirt your honor there are multiple issues in this case but quite frankly the case rises and falls on whether or not this court finds that florida sexual battery particularly florida sexual battery statute seven nine four point zero one one subsection three whether that qualifies as a violent felony pursuant to the arm career criminal act can i ask you a procedural question fans before you dive into your argument there he has a number of prior convictions yes your honor and so my question to you and i'll ask mr cole in the same thing when he gets up is which ones of those did the district court rely on in imposing an aka enhanced sentence and which ones the district court either reject or not address at all because it believed the didn't have to de as worn out by the senate seemed transcript here there were no specific findings as to which prior convictions that judgment works relied on and what we did was we argued all of them and in fact the district court here said that he believed to some of them and he did not specify which but some of them were precluded by precedent and that he found that they were violent but did not make specific findings as to i find that sexual battery is violent i find that kidnapping as violent did not make any specific findings there so that's why you addressed and that's why we have to go through correct every single one of them the i think this case rises and falls on the sexual battery count and i'll tell your honor why i believe that two of mr prior convictions are resisting with violence and aggravated assault which i believe this court with its prior precedent has already ruled upon in its briefing the government did not address defendant's argument regarding kidnapping although they have a statement in their that they don't concede that they asked the court or acknowledge to the court that the court didn't have to make a decision as to that and so i believe if your honour's find that the government has waived that argument that what is left is sexual battery two the charging document reads attempted sexual battery and kidnapping now it was argued to the district court that the nine hundred eighty nine charging document could not be considered because of an issue with the judgment that was presented by the government and what happened was the judgment of conviction was not the original judgment of conviction that would have outlined the oftens in statutes of conviction what the government presented as a shepherd document was a judgment from a subsequent probation violation and so relied upon to repeat myself day and spell and what day and spell note and hold is that the charge of conviction to rely on a charging document to decide what the charge of conviction was there has to be certainty that the charge charged is the same charge of conviction and i'll take your honor to the government's appendix it's page twenty eight of sixty one that is the one nine hundred eighty nine judgment where you don't see what substantive charge he was convicted of the statute number and then what level felony were you do see that is the one thousand nine hundred two judgment which is page forty of sixty one in the government's appendix and so there is no confidence in the one thousand nine hundred nine judgment that what he was charged with is the office of conviction is the one nine hundred ninety two document that you object to related to the attempted sexual battery charges are independent of the nineteenth i'm objecting to the one nine hundred eighty nine judgment and i know because you say the one nine hundred ninety two document oh i see on a proper my question is is that nine hundred ninety two document that you say is insufficient is that related in any way to the attempted sexual battery charges from that year sorry i think i've actually gotten the court confused so let me clarify the one thousand nine hundred two judgment is for the attempted sexual battery and the florida kidnapping that is a proper judgment which actually shows for comparison purposes the charge name he was convicted of the statute under which he was convicted and then the ultimate sentence for comparison purposes the nine hundred eighty nine judgment which are the two florida sexual batteries the substantive counts that judgment is from a prior or a subsequent probation violation that does not list as the one thousand nine hundred two does what charges he was convicted of and under what statute he was convicted of one was that document from that document was also in one thousand nine hundred two because when he got convicted of the attempted sexual battery that constituted a probation violation for the ninety nine substantive charge that's correct your honor they got it yes and so it's our position that this court cannot rely on the nine hundred eighty nine judgment to figure out exactly what were the counts of conviction pursu it's precedent and day and spell and so what we are left with is the one thousand nine hundred two judgment for attempted sexual battery in florida kidnapping well it's i don't want you to forego this argument as you may run on to something else and then not get to it so let's assume the purpose of discussion that that document that the government introduced was sufficient on the merits you think that there is an argument that sexual battery is not a violent felony a violent offense under the aco i do your honor and i reach that now that the the four elements of the state has to prove to prove that florida sexual battery and the and i don't know for the court that in hundred eighty nine if the court is going to assume that the charging document is sufficient in one thousand nine hundred two it is the same subsection so when i'm discussing sexual battery in these elements they do apply to the merits of both and so those elements are one the age of the victim to union or penetration three the use or threatened use of a deadly weapon and for lack of consent and so what i want to concentrate the court on here is element number three which is the use or threaten use of a deadly weapon and just briefly your honour's the age of the victim obviously does not contain an element of violent physical force lack of consent does not either consent can be given  said no verbally no physical resistance is required and so the element here that needs discussion about whether or not it contains violent physical force is a use or threatened use of a deadly weapon and i want to point  court to some florida precedent in deciding that the least of the acts criminalized here and looking into how florida courts to define and discuss these elements the first case i want to draw the court's attention to is shelby versus state  district court of appeal case and what shall be held is that the mere representation that a defendant has a deadly weapon is sufficient for a conviction under this subsection and so the facts in shelby were that the defendant told the victim i have a gun the victim never saw the gun the victim didn't feel the gun the victim was never threatened with the brandishing of the but isn't that a threat to say that i have a gun in fact the court uses the term threat a number of times and shelby why doesn't that make a difference it does your honor in in shelby you are correct that the court held that that was sufficient and that was a threat and so what i want to move on next in using shelby is that one now we know the mere representation that i have a deadly weapon is sufficient so i now think what the court has to consider is what the deadly weapon is and does that deadly weapon and its implementation necessarily require violent physical force and so because of shelby we know that the representation that i have x is sufficient as a threat and so i think what the court then has to analyze is what is x and so there are t florida cases that i'll point your honour's to where courts have found these items to be a deadly weapon and it's our position that the implementation of these items does not include violent physical force and i am mindful of the court's admonition against excessive legal imagination and implausibility and so in these two cases i am demonstrating to the court that these have been found to be deadly weapons in florida state courts the first is smith versus state and that is a first district court of appeal case from two thousand and seven and in smith bleach which is considered to be a deadly weapon when it was in in the victim's face and the facts of that case were that a boyfriend sloshed bleach into a girlfriend's face and the officer at the trial testified about the properties of the bleach and that she had to go get her eyes flushed out and the jury found that that was indeed a deadly weapon and it's our position that that implement ation of that deadly weapon does not require the violent physical force mandated by curtis johnson the second is morris versus state it's a first district court of appeal case from one thousand nine hundred eight and in that case the court quoted in florida the definition of deadly weapon is broad and it does not preclude finding a dog to be a deadly weapon and in that case the a dog who by the officers observations was a large mixed breed dog attacked a police officer and bit him i believe on the right calf and a jury found that the dog was a deadly weapon pursuant to an aggravated battery with a deadly weapon but there are any florida cases where the person was convicted under the statute subject section at issue here where the deadly weapon was something like bleach or a dog not that i found quite frankly your honor but i will note to the court that the definition of deadly weapon for aggravated battery aggravated assault and sexual battery is the same exact definition and it's always a jury question and so it's a little bit of a hindsight looking well it's a jury question because a judge can direct a verdict in favor of the state in a criminal case well and there is no list there's this is not a statute where there is a list of these by law are deadly weapons and so but why why do you think going back to judge priors question that the type of deadly weapon no matter how broad the definition makes the violence either less likely to occur or less forceful or the like bleach can be really problematic a large dog thrown at you in an attack mode can be really problematic you know sharp object in your ear can be really really problematic so why should that be a governing principle it's our position your honor that deadly weapons are not created equal and when the court has admonished us against this excessive legal imagination and we've talking about sprinkling the poison or tapping the jogger who then falls off the cliff what the court has recognized is that there are ways to use deadly weapons that do not require that violent physical force however none of that has been rooted in case law and so the courts have said that excessive legal imagination in those circumstances letting a dog out of its cage or sloshing bleach is not the same as stabbing or pulling at the trigger of a gun and so those deadly weapons do not the implementation of those deadly weapons do not require the violent physical force mandated by curtis johnson about that weapon for a moment you would assume that use of using a deadly weapon would be said yes it is but there's something inherently different to if i had a case to show you sprinkling poison that doesn't require violent physical act opening up the gate for the dog doesn't require a violent  isn't the key here the result that that's setting and setting in motion a series of events that results in an injury or death to another person that's certainly that indirect causation is certainly being debated and it's pursuant to the united states court supreme supreme court's decision in castleman the eleventh circuit has not imported that common law force into its jurisprudence yet some circuits have the fifth circuit has flat out rejected it and what i would tell your own words does not extend to the arm current criminal act you think one more question you think putting aside that element that non consensual sexual battery is a violen violent felony putting inside the deadly weapon element you know your honor all that's required is that the victim is over the age of eleven union which simply means contact it doesn't even require penetration in this court has held and opens that slight penetration is not enough for a violent felony here all that's required is union which is defined as contact and then lack of consent but how do you overcome lack of consent the considerations from the jury instructions are mental capacity no but how do you overcome concerns lack of consent without force unless you have a victim who is not conscious or awake the florida state courts have said that no physical resistance is required and so the lack of consent can come from the mental state of the victim a lack of consent can come from a verbal no so it does not require the struggle that i think would be violent physical force that's not required by the element all right thank you very much yes one quick horse jordan as i recall it you don't make a different argument with respect to attempt to commit sexual battery is that correct that's correct thank you right thank you very much you save your time for twenty three of the ask you one thing before you do that mr cohen so you although you are not conceding the issue you've essentially given it away in practical terms on the kidnapping charge right because you've chosen not to address it in your brief substantively right with that without without waiving the argument we believe we want to you've waved it you don't want us to hold that it's not a violent offense but you're you've given up an argument to the contrary in this case we agree with with the defense counsel that the attempted sexual battery conviction would make the third acca predicate and so the court need not reach the kidnapping ok move but if we disagree with you on that you've given up kidnapping as a basis sentence right well we put the elements in our brief your honor and i think if the court could look at those elements and could make its ruling you can't you can't just put the elements out there without a substantive argument right i suppose your honor but i think th e defense counsel says the attend this case rises and falls on sexual betty attempted sexual battery conviction and paragraph twenty three of the p s i i which is the one that does have clear judgment documents show in which particular sub n was the offense of conviction and the other two the aggregate assault and resisting an officer with violence are supported by binding precedent so the complicated matters as to the record as to the substantive sexual battery the kidnapping count are things that this court need not address ok now let's talk about that one short now the elements the key element that is undisputed it was required for the subsection three attempted sexual battery with a deadly weapon is the use or threatened use of a deadly weapon or actual physical force likely to cause serious personal injury the charging document as to this account this was in the attached as document twenty seven d to twenty one the charging document said deadly weapon the statute subsection says deadly weapon or actual physical force likely to cause serious personal injury as defense counsel herself cited under florida law a deadly weapon is one that is used or threatened to be used in a way likely to produce death or great bodily harm in vale bail on a page thirteen zero three this court recognized that great bodily harm under florida law means severe physical injury not slight or trivial something this court reaffirmed just this week and dixon and as this court held in turner with regards to the elements of aggravated assault that categorically includes the use or threat to do violence is to use or threat to do causing severe physical injury what do you know what would florida law requires for an attempt offense to be chargeable you have to take a substantial commission a substantial step in the commission of the offense or do you have to commit one or more of the elements is it like federal law different than federal law you are i actually haven't attempted but an attempt necessarily means that you haven't committed every element of the offense because if you had you would have completed the substantive offense right threat don't believe you can your honor i grant i haven't fully explored that question i can i can supplement that argument with the letter of the court if you request but i don't think that's necessary to reach here because i think the element that had to ways one could use a deadly weapon there are various deadly weapons but all of them involve categorically threatening the use of great bodily harm whether that is acid or bleach into the face or an attack dog i think what curtis johnson shows is that we're not talking about forth in the sense of physics we're not talking about mass times acceleration we're talking about the infliction of serious physical harm to a person which is what florida law requires for a deadly weapon and so i think it's a perfect it would be perfectly suitable if if one is tempted a rape by holding a gun to the victim's head or by holding a syringe filled with potassium chloride to their neck either way you are threatening infliction of death or serious physical injury to that person in order to accomplish the right as you as you said your honor you are  overcoming the person's will not is what the threat of the force is in in a great context you're overcoming the person's lack of consent by threatening them with death or great bodily injury so whether it is acid or bleach or a gun it doesn't matter it's a deadly weapon that is going to be a threat to do violence which is what this court found in turner was sufficient to make i graduated assault and aca predicate i did look your honor also and could not find any cases under florida law where a person was prosecuted for sexual battery or attempted sexual battery with poison chemical weapons anthrax bleach any of those kinds of examples  i think this court has made it clear that those kinds of legal imagination really don't affect the outcome of this analysis in any event shelby as the court pointed out included the explicit threat what the court shelby said was that in order to carry out the assaults the the assailant informs the victim that he has such a weapon under circumstances that caused the victim to have reason to believe that the assailant has the ability to carry out his threat and what is the use or threatened use or attempted use of physical force and i think that sexual battery both the substantive sexual battery or the attempted sexual battery the legal arguments are the same the reason we focused on the attempted sexual battery is because the judgment of conviction was part of the record showing that this was subsection three sexual assault with the use or threaten use of a deadly weapon or serious physical personal injury and the law is clear that is a threat to do violence is this court found in turner unless the court has any further questions i think the other two predicates that were relying on the aggravated assault and resisting with violence are supported by binding precedent i'm sure i will go back to one question that the court had raise as to which counts the trial court had relied upon i'll point to the court to the sentencing transcript at page five where the district court rejected the objections to the aggravated assault and resisting an officer with violence so those two were clearly relied upon by the district court the other was a little bit on the others a little bit more unclear well again i'll point the courts of the transcript at page nine of the sentencing transcript where the court said that the i think addressed the sexual battery and attempted sexual battery the court i don't think distinguished between the two and ruling on that and that's a page nine of the sentencing transcript and then just to be clear that the government was was relying on the attempted one as low as well as the substantive ones the substantive ones because there was dispute in the trial court as to what the documentation was to support the exact offense of conviction as to the substantive sexual battery charges that was a great topic of discussion at the sentencing hearing but the government made clear at page fourteen of the sentencing transcript that we were relying just as strongly attempted sexual battery is carmen argues in part that you can overcome lack of consent without force could you address the contention whether one could in the hypothetical sense that you one can't be convicted under this subsection without force i think personally i think that no i think that well you know clearly other subsections do address cases for example of where a victim is unconscious and that is where one is you know clearly acting without the victim's consent that was the unconscious cases but this subsection requires by its own terms the use or threatened use of a deadly weapon or actual physical force i don't think one can be convicted of this subsection without the use of violent force the threat to do violence either with a deadly weapon which is the use or threaten use to do great bodily harm or cause death or physical force likely to cause serious personal injury so no i think at this sub head at that applies to the substantive sexual battery so as to that well i think we have to concede that the record is a bit unclear here the documents that supported the substantive sexual battery appear to be the documents regarding the sentencing the violation in the later case and what's confusing is that the the sentencing document in this is a docket and three twenty unclear and it doesn't and the sentencing document does not state what the statute particular subsection is which is why we're relying on the attempted sexual battery for which the legal arguments are identical if attempted sexual battery qualifies then so does the sexual battery and vice versa and therefore this court doesn't need to address that is correct you're left there any further questions i think that there are three qualifying try to get out of felonies and the aca sentence  should be affirmed thank you thank you very much are ready thank you judge let me first address the government's contentions regarding the lack of consent in the force that may be necessary to overcome that and i'll direct your honour's to  appendix docket entry twenty five dash one which holds the jury instructions for sexual battery and particularly of note here it defines consent to mean intelligent knowing and voluntary and then it goes on to discuss that evidence of the victim's mental incapacity or defect may be considered in determining whether consent was giving bar given voluntary great excuse me given voluntarily and then it goes further to defined mentally incapacitated so the jury instructions that the jury would be read in every case certainly leave room for consent not being voluntary because of a mental defect or in capacity or something like that which does not require force element for the lack of consent could be that the person is physically or mentally unable to consent and so i think really where the court is focused is element three which is the use or threaten use of a deadly weapon and i just want to reiterate that because a deadly weapon is defined so broadly and it is defined the exact same whether it's the aggravated assault statute whether it's aggravated battery or sexual battery that definition of deadly weapon is identical it's not asking the court to do legal gymnastics or to embrace implausibilities because in fact there are two florida courts that have found one a dog and to bleach to be deadly weapons and so this is not a case where i'm proposing hypotheticals that are not grounded in any sort of law these are two examples from florida courts where a deadly weapon has been found and the implementation of that deadly weapon does not require the violent physical force level message an artist johnson i don't understand that if you view so let's take the dog example if you threaten to commit sexual battery on someone who refuses consent and the threat to overcome that person's ultimate will is an attack dog on a leash on your right hand why is that not the threatened use of physical force so in shelby we know that the representation that i have the deadly weapon is sufficient so in that case  defendant to say to the victim i have a large mixed breed dog that would be sufficient under shelby as a threat and sufficient under morris because that could a dog could be a deadly weapon but the implementation of that force you letting go of the leash or opening up the gate that doesn't require violent physical force of course it does you're just doing it through a different object so when courts have desserts go to the bleach one then if you if you throw acid on someone face you don't think that that is inherently violent and the use of physical force the sloshing as discussed in smith i don't think is the violent physical force like matter it is matter what your sloshing the the object is it's what you've done right and so even when courts have sort of issued these sprinkling of the poison etc they've not said that the sprinkling requires violent physical force what they've said is that's illegal in probability and so it's know it but why why is this charging something that is inherently  corrosive or damaging not an act of physical force no less so than the firing of a gun and putting a bullet into somebody where you are not physically touching the person but you're expanding a projectile which then causes untold damage i'm trying to figure out where your dividing line is in the case of the sloshing and i use sloshing because that's the testimony that was used or that was you know borne out by the trial the sloshing if it were sloshing of a bucket is not a violent physical force like punching kicking dragging so even though the result could be harm result in the direction implementing well in the courts one this court case dixon just recently and again unveiled the law on you had an injury that you could work backwards from you had a result that then you could say violent physical force must have been necessary to achieve this result we don't have that here and so what we have are is a very very broad definition of a deadly weapon  acknowledged by florida courts and that leaves open the possibility that there is a deadly weapon at there that could be threatened to a victim that does not require the violent physical force that curtis johnson mandates and it's our position that smith and morris are two examples that are grounded in florida law there are examples of that and so we believe according to smith morris shelby that this does not have is an element the violent physical force