morning your honor may it please the court my name is rachel paulo some a partner at d l a piper along with my co counsel robert richman and our colleague julian stone we represent mr gammell mr gemmell does maintain all the arguments articulated in his briefs or honors and respecting the court's prerogative to determine issues for oral argument i would like to focus on the following two issues and reserve five minutes for rebuttal time place first mr gammell contests his a c t a classification hundred eighty four minnesota aiding and abetting burglary conviction is under a statute that was to substantially broader than the generic aiding and abetting understanding the issue is whether the district court failed to apply the supreme court's decision in gonzales versus join us alvarez second the indigent and elderly mr gammell contest a nearly one million dollars restitution order in this case the issue is whether the government's proof in this case flunked the standards of the supreme court's decision and law goes to the end the ira and eighth circuit case law your honour's with this case the government asserts that taylor a categorical analysis may never be applied to an aiding and abetting conviction as an i c c a predicate as a matter of law that specific contention has been considered and rejected by the united states supreme court and we're not aware of a single case in a country that has embraced such a radical position the principle at stake here is the fidelity of this court's jurisprudence under the a c c a framework established by the supreme court the government's proposed new rule would in fact with legal error every aiding and abetting and alternative liability case to appear in this circuit and specifically your honour's the supreme court rejected the government's theory in a doing us alvarez which we respectfully ask the court to consider and apply here indeed the government's whole argument is predicated on its failure to wrestle with when asked alvarez and the consequences that it has in that case and in others like under the taylor framework as applied to the a c c a underlying conviction the case is them that the government sites on these issues your honour's have nothing to do with the specific question before this court which is is it possible for an aiding and abetting theory of liability to be so broad so as to remove a predicate crime from from beyond or make it go beyond the generic definition embraced by the supreme court embraced by the common law embraced by federal statutes embraced by other state council what's your best minnesota case  the backs up your contention that the aiding and abetting is overbroad of are those cases with respect there's different lines of thinking in there and honestly i'm having a hard time pinning down what the rule is in minnesota i think the minnesota supreme court has had difficulty pinning down what the role is your honor but it seems that the modern understanding of aiding and abetting in minnesota embraces two things that are not mentioned some of the concepts that are problematic so the first problematic concept is that minnesota does not require an overt act which is a fundamental under rosemont aiding abetting consists of intent as well as action minnesota does not require action and in fact defendants including in the parker case were found guilty by merely being present secondly minnesota conflates conspiracy and aiding and abetting and the difference of course between those two is that conspiracy again does not require an overt act by a particular defendant whereas aiding and abetting does require the defendant convicted to have committed an action as well as to have the necessary intent so that that's the problem with how minnesota is applying the aiding and abetting statute the bigger issue here the legal issue is the framework that the united states  where the litigant there challenge his aiding and abetting faffed conviction saying that because california defined aiding and abetting true broadly that that took it out of the it took it out of a a predicate crime and the ninth circuit embraced really the mirror opposite of the government's argument in this case and to a radical position saying no aiding and abetting case and ever be an a predicate that's not the argument that we're making here your honour's we're saying consistent with when a sabras it is possible that a state aiding and abetting statute may be so broad as to put an underlying supreme court looked at the california statute that examination would not have been necessary if you accept the government's proposition here that aiding and abetting is never relevant nevertheless  at that statute subjected it to a tailor categorical analysis and said because over forty states define intent in aiding and abetting the same as california does here we are not going to grant relief to this particular defendant defendant lost the factual battle however he won the legal war that is the same war that mr gammell is waging here which is the court does need to consider wherever a theory of liability places a statute beyond the reach of the well you know your are you referring to the second degree burglary yes your honor  and as i understand it if you're not making the argument that second degree burglary is not a predicate offense we are not making that argument your honor nor are we making the argument that aiding and abetting or alternative liability statutes are removed we're saying it needs to be considered you're saying that in minnesota it's possible for someone to be convicted of aiding and abetting second degree burglary without that person committing whatever is required in a particular jurisdiction to constitute aiding and abetting historically has an eating and abetting simply been viewed as another way of committing the  considered that question and when it's avarice your honor and it said historically the answer is usually yes but sometimes the answer is no so using the categorical analysis not looking at the particular facts of this crime but looking at the categor looking at the elements as minnesota defined them minnesota statute still has to fit within historical aiding and abetting we're saying in this case it does not so the difference that it makes your honor to use an example that we use before the district court if minnesota defined aiding and abetting as a counseling procuring or living with a burglar one could understand how that statute would exceed the traditional understanding of aiding met here because of how minnesota defines aiding and abetting so if we agree with you i'm trying to understand what the practical consequences might be  otherwise qualifying predicate offenses that were committed in minnesota while this is being in abetting statute was in effect so from one thousand nine hundred four i don't recall when that the statute changed but is that is that where we're going if we if we accept your argument if we you know kind of walk through the door that the supreme court has opened here is that the result well i think under taylor the result is that the state statute is subjected to that comparison and it is possible that if the statute exceeds the bounds of the generic definition as it did in taylor another eight circuit case that that those convictions cannot stand as an a c c a predicate that does not mean a defendant gets off scot free it does not mean that there are no consequences for his action it simply means that he's not in a c c a criminal your honour's with the with the court leave i'd like to reserve the balance of my time for c will probably take the most of the time based on the court's questions but i did i just did did want to say with respect to restitution that while out relying primarily on the briefs judge wright's restitution in order in this case was extraordinary and it was and stole money and money was the proper value there of the property that was damaged lost or stolen lagos also the victims also sought to recover additional restitution under subdivision a for which the court didn't permit because it wasn't connected with a criminal prosecution here judge wright was tasked with determining what the proper measure of loss was where gammel had repeatedly impaired the reliability functionality inaccessibility of their websites and she did not abuse her discretion which is the standard applied for her determination of what loss controls including labor costs and d das mitigation services based on the nature of gambles offenses unless the court had additional questions outside the briefing on that minnesota aiding and abetting a substantially broader than generic in abetting is true you agree counsel though that some of the language and join us alvarez opens the door to this sort of argument if not in this case  as extreme that is in fact this court's position and that's a direct quote from a swing decision which says it's irrelevant whether a defendant is convicted under an aiding and abetting theory of liability saline comes not only comes after us this court cite and quote and follows duenas alvarez in so many so the characterization that the government is taking some sort of extreme position  is frankly just off base the government is asking this court to a pious on precedent it's also not true that no court no in the case in the circuit has raised the challenges that mr gammell racers in fact that in the douglas case they were raised and just this week the court issued a peer curiam order citing saline for the proposition that it's irrelevant whether a defendant is convicted under an aiding and abetting theory so in response to your question your honor  already construed to an s l for us and in the government's view construed it properly but really the government's view is beside the point that is the court's law and it's been applied as recently as the douglas case just a few days ago with respect to the over as opinion your honor and what what the government believes is going on and to win us all for us and to win us over as the supreme court identifies for a categories of liability for criminal offenses and they say they have canvassed all fifty states aiding and abetting statutes as well as federal law and concluded that all fifty states treat aiders and abettors falling into categories two and three of those four categories as liable for the acts of the principal and as judge sheppard you pointed out sheppard that second degree burglary under the version of the statute mr graham was convicted of is and a c c a predicate offense there's also should be no dispute that mr gamma was not convicted of aiding and abetting second degree burglary he was convicted of second degree burglary under an aiding and abetting theory of liability and under this court's jurisprudence including celine it goes back further than selene the the court in brown the year before selene that's five natural and probable consequences doctrine creates a subspecies of theft under the california vehicle code that takes it outside of generic theft and the comparisons undertaken into witness alvarez are about whether california applied its natural consequences natural consequences doctrine in a way that took twenty takes california vehicle theft code outside of generic that there is nothing at issue here that take a second to rebury statute here outside of what the supreme court to find a burglary as and taylor which is the unlawful entry of a building or structure with intent to commit a crime nothing takes what gamble did outside of the purview of  second degree burglary or taylor and although gamma was convicted of second degree burglary hundred eighty in abetting theory of liability in docket ninety nine exhibit two you'll see that he actually was convicted as a principal as he he pled guilty to facts that made him guilty as a principal he was charged as a principal and an aider and abettor and he pled guilty straight up to a complaint the charge both but that's really beside the point as to whether he was a he was johnson and was not about generic burglary certainly it was an immigration case addressing natural probable consequences doctor in california now look if any state whether aiding and abetting or not defined burglary to mean co habitation there's going to be a problem if the statutes amended beyond what aiding and abetting was at the time saved when it's alvarez or if minnesota adopt some other doctrine that takes burglary outside of generic burglary as defined in taylor this court is going to retain the authority to review that state law but that's not that's not what it's you here and the second half of the do as alvarez opinion was really sat apart but i do want to make this this point what the court was saying there was not that in even a better activities have to satisfy the generic definition of burglary i e the aider and abettor has to enter the structure with with intent to commit that's what dennis alvarez was arguing what the ninth circuit held and was reversed in the into print court the supreme court then reviewed the question after the ninth circuit opinion the question before us is whether one who aids or abets a theft falls like a principle within the scope of this generic definition when the supreme court said the criminal activities of these editors and abettors of the generic theft must themselves fall within the scope of the term theft in the federal statute the overbroad it clearly minnesota law is not substantially overbroad as to aiding and abetting and must take each of the contentions in order first that minnesota law doesn't require an overt act and that parker is the best case for that gamble argued to you a few moments ago that parker was convicted based on his mere presence at the scene here's what the perky decision says we conclude the defendant's close association with the other men who appeared in the stolen car in front of the victims house before and after the crimes charges were committed and the fact that the three of them were apprehended fleeing from the convertible stolen from the victim all tend to recently justify the conclusion that defendant joined with the other two cohorts in the common purpose of assaulting the victim robbing him and stealing his automobile parker is not a mere presence case there is no case in the state of minnesota and recall that when us however a says if you're going to argue that minnesota applies its law broader than generic you've got to come up with a case there's and rosemont distinguish mere presence is present married to an intent to aid the offense and a reading a straightforward reading of parker demonstrates that parker is entirely consistent with rosemont as a matter of law and that in its application parker is not a mere presence case is also a good recitation of the law recall that in rosemont the court said that aiding and abetting encompasses all acts or all assistance incurring incurred including acts encouragement support or presence there's no question that the supreme court recognized the pres is part of an appropriate aiding and abetting application but you've also got to have the intent to aid and there's no question that throughout all of the cases cited in both parties briefs under the law minnesota  that both of those need to be present with respect to conspiracy the defendant is a brief cites cases federal cases that say well if you're convicted of conspiracy you're that's not good enough under the a c c and that's certainly right but the reason for that is because a conspiracy isn't in code offense and aiding and abetting requires the completion of a committee of a completed crime that's where the aviator are better becomes liable for the acts of the principal if the principal commit advice someone to commit a crime if i counsel them they commit a crime or if i say hey i'll commit the crime with you those are not substantially different in terms of the encouragement to use grossman's term that the aider and abettor is providing to the principle so even if and there's also no case that the defendant can cite that shows that minnesota statute including conspiracy somehow takes it outside of the mill run application of aiding and minnesota law substantially comports with with generic aiding and abetting liability it clearly does as to requiring an affirmative act that include can include the act of being present at the scene with the intent to advance the crime and it clearly does with respect to including conspiracy as among the means by which a defendant can act encouraged to support status presents to assist  the practical implications your honor a potentially severe if aiding and abetting if minnesota aiding abetting is declared to be overbroad in all circumstances we'd have to get into whether aiding and abetting is implicit in every charge but it's not true that the main circuit has said that no aiding and abetting statute passes muster they said the washington eating and abetting statute doesn't pass muster so it's not that the ninth circuit takes an extreme position that no aiding and abetting counts you'd also be lay in wait there your honor but potentially by taking that step that's not mandated by doing us alvarez and that permitted by celine yes it opens the door to a verse or a ding all convictions under minnesota much time as must policy have gone off the well your honor to go back to the question it that your honor judge shepard asked me about the difference between a minnesota statute and the federal statute the federal definition or understanding of aiding abetting is contained in rosemont and it clearly embraces both action and intent and it says quote an aiding in a bit about in conviction requires not just an act the still attaining one or another element but also a state of mind extending to the entire crime that's what minnesota lacks is a definition that includes action and intent secondly i think counsel just conceded the legal issue that it is possible for a state to define a theory of defendant does not make the example you gave earlier of a statute that would permit someone to be convicted of a crime under an aiding and abetting theory because they cohabit with the principle offender i mean there you'd be talking about something that would be would raise issues of black due process one constitutional provision is violated doesn't mean another isn't as well your honor we're saying that that definition would not comport with the supreme court's framework in taylor that framework was not challenged in saline the defendant in saline never made the argument that we're making here what he did what he challenged aiding and abetting generally as a as a predicate for a c c a that's not what we're doing she never asked the court to subject the aiding and abetting statute to a taylor analysis and that's very clear not only from the opinion but from the brief that the defendant submitted in that case as well douglas submitted this week we agree this analysis applies to a n do you maintain your argument on the aggravated robbery issue in light of stokely decision we do your honor and in part because minnesota does not require forced at the time of the robbery which is the distinction in that same to the florida statute in stalking with respect to restitution your honor the government did not submit a well documented record of costs that are allowable under the m the ira the m p r a is a statute that must be strictly construed just required judges do not have the authority to independently order expenses the expenses in this case most egregiously involved expenses for upgrade put victims in positions that they were that were better than the positions that they occupied before the attacks and repeatedly if you look at the transcript of the evidentiary hearing in this case repeatedly the government concedes that victims admitted they were seeking to insulate themselves not just from mr gammell but from any and all future attackers repeatedly they admitted that they upgraded their entire infrastructure to prevent future attacks repeatedly they admitted that because mr gammell put them on notice of vulnerability generally which is just the state of the cyber world that we live in that they claimed costs that quote would not go away that is not the standard that the m p r a sets out claimants may claim cost to repair their property or to put them in a position that they occupied before the damage but they cannot claim costs for instance infrastructure that puts them in a position better than they occupied before the attacks the the second problem with their restitution order is that the costs were not documented under this court line of cases and shake