good morning i should have of one thing which i don't know if you're aware of or not but the marvel film company is filming and avengers movie right next to us and it's not me thing we had anything to do with their authorizing in any way but there is a possibility that there could be exploding cars and other things as we go through so i did not want anybody to be a long arm to if anything like that happened and i hope you all want to inconvenience getting in given that disruption judge edmondson and i are very pleased to welcome judge kathleen williams here today as our visiting judge many of you probably know that we are a very busy court and we depend heavily on the generous service of time by some of our visiting judges and judge williams is sits on the southern district of florida she was appointed by president  in two thousand and eleven before that she served for many years as a federal public defender in miami in the southern district of florida she was quite well respected i know this because i chaired the criminal law committee of the judicial conference and judge williams was the person selected among all the defenders in the nation to be the liaison and representative to that body so i also should mention one thing i heard that she's recently been honored with a very prestigious award in miami the day of dire professionalism award which will be awarded so we are very honored and very pleased to have judge williams here with us today all right so we're ready to begin the first case mr garrett aggravated assault qualifies under neither of those i'd like to address the enumerated clause first of course application no one b three does list aggravated assault as a crime of violence but then we have to use the categorical approach to compare georgia aggravated assault with this court's generic definition and to qualify as a crime of violence and all conduct including the least culpable conduct criminalized by the georgia aggravated assault statute must also come under this court's generic definition in other words the georgia statute has to be the same or narrower than the generic definition and you say it's not narrow in the respect that the other object definition is not really a deadly weapon that's a main argument here is that correct exactly and we know that all the conduct would have to fit under the deadly weapon prong of the generic definition because the georgia courts have said that aggravated assault rests on simple assault and simple assault includes a general intent variation the reasonable apprehension so there is it can't be the case that if it's under the specific intent to cause serious bodily injury prong of the generic is a really broad definition it doesn't require either a traditionally deadly weapon or serious or i'm sorry specific intent to cause serious bodily injury so you're that you're saying that it criminal conduct if i understand under the numerated portion of the analysis it criminalizes conduct that federal law doesn't so the deadly weapon could be a brick a pen it c anything and federal law has a more circumscribed crime definition or jurisprudence about what a deadly weapon is there are two important points there the first is that the georgia statute it's not just that any kind of object could qualify you're right it could be a brick upin a piece of wood a telephone receiver or anything but it's also that it is kind of defined retroactively after you find out that it caused a serious bo injury then we call that object whatever it was a deadly weapon because georgia has said that that whole phrase in a two deadly weapon or any other object is all part of a deadly weapon aggravated assault for the purpose that it has to be when used to thin civilly against someone else a likely to pour actually result in serious bodily injury but that can't we know that can't imply any specific intent because the georgia supreme court i'm not talking about intent right here we're just talk about whether or not it's a dangerous weapon correct correct and to to answer your question also go back to that of judge williams the palomino garcia court didn't define deadly weapon but it did draw in a lot of familiar sources like the model penal code and black's dictionary and in common was and as i discussed in my brief across all of those deadly weapon is considered to be something that either is inherently dangerous or because of the manner in which it is used is likely to cause that doesn't the pattern instructions in georgia give you just that kind of definition the capability instruction where the jury's asked to look at whether it's capable of causing death or serious bodily injury considering all the circumstances and i just happened last night going through west a little don't apologize for citing something you all haven't but the gibson supreme court case in two thousand and eight in which a person had used flashlight and was convicted of aggravated a ult and there was some question about the instructions and the supreme court said immediately after whatever the statement was made that was at issue the court correctly instructed the jury to determine whether the flashlight which was the object was likely to cause serious bodily injury using evidence of actual injury as part of this inquiry if those are the instructions that georgia courts are endorsing and giving isn't the capability of the weapon something that juries are required to find and then that would handle your objection the fact that it's not necessarily looking at the right element i think i disagree because that was inaccurate instruction because the definition  sixteen five twenty one a tooth does say likely to but it also says or happens to cause serious bodily injury so even though the jury may find someone guilty under the theory that this is a deadly weapon because it has some characteristics that make it as it was used likely to cause serious bodily injury they may also find someone guilty under the second part of that clause which says that it did happen to did result in serious but not under the instruction i just read well as you said i don't have the benefit of gibson in front of me but the statute is is clear and cases like state the kirkland also make clear that there is no intent required and it can just be the case that the defendant happened to cause serious bodily injury after the fact and that the so called deadly weapon there was a car and it wasn't the case that mr kirkland  drove that car in a manner deliberately at the officers or or toward them in the kirkland court assumed for the purpose of deciding the appeal that in fact he had no intent whatsoever other than to flee the infliction of serious injury and dangerous weapon there was nothing along the lines of what you're suggesting about the end and different sort of intent right generally i'm saying statute does and also because the georgia a deadly weapon i just tell you that because it was secure silently as you said that we all know something i want to know that there was one person that does not know that well i appreciate your letting me know that judge edmondson but i think again this this kirkland case is the perfect example of a factual scenario in which a georgia aggravated assault conviction was a paneled where there isn't that kind of intent it was explicitly he under the reasonable apprehension variant of simple assault underlying that they said that by driving away and the officers hand inadvertently getting tangled in the car and him being dragged in that kirkland had to whether he meant to or not cause the officer reasonable apprehension of receiving a violent injury but then i think i think we would agree that a car is not one of those objects that is always a deadly weapon it is and it would depend on having the intent to use it in a way that would cause serious bodily injury i think that's the kind of intent you're suggesting you think is read into aggravated assault by the addition of an aggravator and that's one of the arguments the government has made but i would say that kirkland is a perfect example because nixing the elements clause and the generic as i get it when we're talking when you're talking about the specific intent and accurate than the generic aggravated assault definition is going to be something somewhat different perhaps is not are required the same elements as the elements clause would correct otherwise definition and that required deadly weapon or intent to cause serious bodily injury and you're right that's different from use threatened use or attempted use of force physical  force but i don't think that that that saves the george aggravated assault statute let me or let me ask you maybe i'm conflating understandably maybe i'm conflating in appropriately your argument so there's the enumerated component which i think you argue that is because we have it's likely to result in some bodily injury it over criminalizes in appropriately and therefore we have to go to the elements portion of our program which gets us into the lay a cow intent discussion tell me if i'm correct your you are saying that with the simple assault plus aggravator which the least criminalized conduct would be reasonable apprehension plus deadly weapon you're saying even in that scenario because aggravated assault under collins and adsit in east does not require intent that underlay a it does not conform to the heightened intent requirement is that your argument i agree with both those things i don't think we need the linkage i think the analysis under the enumerated clause and under the elements clause is separate you're correct in that because the least culpable conduct would be reasonable apprehension simple assault and then any other object with just so happens to result in serious bodily injury right just like we see in kirkland  that because that is broader than the generic definition of palomino there see we know that not everything that is criminalized by the georgia statute falls under the enumerated clause and then yes if we would look to the elements clause and believe you're also correct there we how plus johnson won in two thousand and ten said that physical the use of physical force in the context of these elements clauses whether a c c a or or here means an act of employment of violent force and they specifically said there that it requires a higher degree of intent i think they are negligent or accidental conduct but they said that they weren't they they specifically said and i think this is where the government is going to come back we aren't looking at threatened used or attempted use now it seems to me then there is a continuum maybe not of the heightened intend that lay a cow sets in use and then attempted and threatened use which i think at the very least might because of the language suggests some kind of recklessness or disregard where do you think there's a different standard on or attempted use well i mean as you say that the court didn't didn't go that far we don't know the answer from the supreme court to that yet but no i don't think so i think that both threatened and attempted use impl the same kind of heightened bans re i don't think that the court is going to say that reckless or negligent conduct could satisfy either of those so that because the aggravated assault in georgia according to collins and adsit i don't know if i'm pronouncing that correctly says intent to injure is not an element then that  yes because because we account said you had to have that heightened intent and again kirkland's a perfect example where the court upheld the conviction even assuming that mr kirkland did not have any intent except to leave t all right and we will give you back your your three minutes and thirty seconds since we have been asking you questions thank you thank you numerated i like to start with the elements clause which is where my colleague finished but also for the reason that the elements clause has broader application we are still faced with scores of twenty to fifty five since johnson  and the elements clause permeates all of them whereas the aggravated assault is only enumerated in a couple of spots or to be the best assistance to the district court and or litigants i respectfully urge court consider deciding this on the elements clause which would have the protestant occasion and help us the most so curtis johnson tells us the quantity and type of force that's required for the use attempted use and threatened use of force and that's easily met here bodily injury more than just a mere touching force capable of causing  bodily injury or pain and that supplied by either of the simple assault elements because they speak of violent injury so that's not at issue what's at issue is of course legal counsel is there sufficient intent the georgia aggravated assault statute and there is and there is amongst all four of the possible aggravators and i mention this although we know that it is divisible and we could jump straight to the deadly weapon aggravator here because the courts tell us we go to the modified categorical approach when the categorical approach won't do when some qualify and when some won't let you let me ask the predicate simple assault from whence we get the aggravator divisible or non visible non visible ok so for mathis that was less clear right and i mean the district court there was some notion by every one maybe maybe not but even the defendant wasn't sure at that point but now you can see that it's not the bills before locking in this or that i would say there was arguable but of course both locket and math that's are applications of this camp which is an application of taylor so the argument was there but it became court is bound by the ruling of the state's highest court we know that from chris johnson it says the georgia supreme court will tell us what georgia law is fact it could follow that other cases would say we look to the intermediate state courts only where the supreme court hasn't spoken on an issue and only if we don't feel the supreme court come out differently and the georgia supreme court answers this question it answers it in guys or however it's pronounced i apologize to mr guys it sa specifically that that's related to saw with a deadly weapon it requires an intent to injure now it's clear here it does not require a specific intent that is a specific intent to kill or cause serious bodily injury all it requires is a general intent to injure and once we have the georgia supreme court telling us that we're done now the defense tries to take away guys to try to distinguish it by saying that's a first prod simple assault case that's an intent in her case there's two problems with that first of all that's not where justice nami is tells us that there's a general intent to injure this is a felony murder case and they're examining the sufficiency of the evidence for the underlying aggravated assault with a deadly to the other element of aggravated assault first the aggravator but then he goes to simple assault he points out that there's two varieties and he says this is both this is both varieties this is a driver who are from really trying to around to do a head on collision he was intending in enter and cause a reasonable apprehension of immediate violent injury in the victim it's both but under both i'm confused looking at guy and it says on like the first statutory aggravator intent to rob rape or murder the second statutory aggravator does not require proof specific intent or we are are we talking about the second now yes yes in georgia law what that means is it doesn't require the specific intent to kill cause serious bodily injury right after that justice nami says it only requires the general intent to injure he didn't have to intend to kill the people he didn't have to intend a serious bodily injury that's part of that definition of offensive use of the car he merely had to intend to injure to change that car into and if an offensive used in order to satisfy the deadly weapon aggravator and we don't only know it from guys because guys sites turner and turner says the same thing that it requires a general intent to injure under georgia law and this comports with layer colonel yes because it wasn't negligent it wasn't a mistake there's a general intent to injure with the current and then there's a general intent to injure that satisfies leo cal that's the use that the account speaks of it's not negligent and fact we know that from proclaimed and let's talk about proclaimed for a moment because we have to deal kirkland we cited correctly it wasn't in the opening brief we felt it important the court had this information kirkland doesn't apply for two reasons first and foremost crooklyn is a georgia court of appeals decision we don't get to kirkland because we have the georgia supreme court telling us what georgia law is so we don't even get to the intermediate court but second of all there's something going on at the end of kirkland which is telling finally on appeal there the defendant said you know what this is an aggravated assault and all this was reckless conduct and the court says too late you should have brought that up alone but that tells us something if you look at the defendant donnegan case this is what separates georgia reckless conduct from georgia aggravated assault with a deadly weapon where there's intentional conduct legal cal conduct intentional conduct it's aggravated assault with a deadly weapon where there's criminal negligence it's georgia reckless conduct which is a misdemeanor so that's the difference we don't look at crippling because it's the state court of appeals decision we have a supreme court decision and we know the supreme court which says differently it says you require general intent to injure and proclaim tells us and columns and georgia has a rule and it comes down from ads that and ads it says that an unloaded shotgun which is intentionally pointed at another in a threatening manner is aggravated assault with a deadly weapon that is nothing new what they're saying is that a matter of law when you point a gun at somebody that's a threat that's the use attempted use and threatened use of force when you pointed guns at somebody in a threatening manner that's what it says intentionally pointing a gun and another in a threatening manner that's a threat that qualifies under the elements clause now other cases now actually as it doesn't say there's no intent to injure but other cases when they look at this unloaded gun scenario throw out the language there's no intent to injure or look at what adsit if you want to say so is saying there's no intent to injure when you have a threat when you have the intent to threaten that's fine that's fine and really account for two reasons one is your honor mentioned lio cow specifically takes out threats it says we're not talking about threats but even if it were even if required something more than negligence adsit said so as it says intentionally pointing in another in a threatening manner and so that's enough to satisfy leo callus well so we have the gun cases where loaded or unloaded when you threaten somebody with a gun that aggravated assault with a deadly weapon and then the other cases like the carcase are going to flipping it because at and collins in all these cases talk about the reasonable apprehension of the victim and that's where i'm stuck trying to find out what yours what standard you are asking us to cobble together from the use an analysis in lay a col going to attempted or threatened which we have here the courts and adsit and collins and even geese said it's the reasonable apprehension of the of the victim there is no intent to injure that is necessary you seem to be positi the fact of the weapon gives you and i think you said in your brief the fact of the weapon gives you the purposeful component of our of our analysis and then you cite to sylvan the tenth circuit which in fact talked about threatening or menacing conduct language is absent from the georgia statute so that's what i'm trying to to find out yes our position is and is that  the only argument and we need to be clear about this the only argument made by the defense in their briefs of why this isn't an enumerated crime is the language at the end of the offensive use which says that the object is used in such ma is likely to or which does result in serious bodily injury or death that which does language they suggest is an issue now they go to some generic language and there's a bunch of different versions and they all say about the same thing to the same concept with some minor differences and that's telling because we know from taylor and we know from lot laterally that this court's case which we cite as long as it fits the generic this definition or narrower or with minor differences we're ok lastly says that  straight from taylor and all of his you know definitions they match that there are minor differences and argument is ga two that's a minor difference how do we know it's a minor difference we know because of what the supreme court tells us in g federal statute requires more than the application of legal imagination to a state statutes language and here's the punchline after the language we give in our brief ok first or last from brief it requires a realistic probability not a theoretical possibility that the state would apply its statute to conduct beyond the generic version and then it goes on to say the defendant must at least point to his own case or other cases in which the state courts in fact did apply the statute in the special non generic matter for which he argues he has to point to his case or specific cases raj trained in law school to think of interesting hypotheticals the supreme court in this instance says don't do it give us cases and that the defendant does not tip to defend it gives us no cases where there is an object which is not known to be capable of causing serious bodily injury to use the m p c definition yet to us the only us is a golf ball hypothetical and his reply to problems with a golf ball hypothetical well he does cite some cases that talk about weapons of it on guns they talk about this when i said ah you know flashlights he does cite some things that aren't stereotypically it's not inherently deadly weapon but that fits the generic definition as well the generic definition includes use the m p c version any object which in the manner in which it is used is known to be capable of causing serious bodily injury and all of those examples that you cite or that he has cited fit that generic definition so they fit ga and they fit the generic definition he has to give us one which doesn't fit the generic could be a deadly weapon yes under the generic definition because it's not just what it is it's the matter how you use it it always makes me think of agatha christie's dialing for murder when she takes the scissors and stabs him in the back that was using those scissors as a deadly weapon because of the manner in which it was used and that's the generic definition of defense doesn't doubt that in fact there hypothetical the golf ball not only is it not a real case but it doesn't fit george to aggravated assault either was that because he wasn't using the golf ball offensively he drove the golf ball thinking he wouldn't hit the guy but then he does well that's not offensive use of a golf ball and as we know from the other houses he didn't have the intent to injure so even his hypothetical fails under the georgia statute and it's not a real case anyway showing his weakness there he switches over to this new argument which he never made before using kirkland but that's really just the elements analysis in a numerated start by responding to counsel's arguments on the elements clause since we had less time to discuss that before you know at the very beginning he quickly almost skipped over now and curtis johnson requirement about the quantum of force that it's johnson case is not evident in examples that satisfy the georgia aggravated assault statute so you know driving driving a car away from police from everything is not a violent force by itself so i  that courts courts decide lots and lots lots of cases and undoubtedly they get some of them all when the georgia supreme think the guy's case that he's talking about from the georgia supreme court didn't overrule her clinton didn't discuss it but it also doesn't implicitly overrule it because the two decisions are compatible as he admitted this guy's facts come under the first prong of simple assault where there was an attempt to commit a violent entry mr guys in contrast to mr kirkland who just drove his car away with no intent mr guys deliberately rammed other cars with his car at high speeds with the intent to cause injury to the occupants there and so that doesn't come under the reasonable apprehension prong of the statute and therefore i don't see that as being incompatible or inconsistent with the current decision  never does anything for me because we're not dealing with a simple assault case we're dealing with an aggravated assault case which is a different statute and has additional elements which to me superficially first reading not making a final decision looks like it involves something dangerous and hateful  and so the fact that one element is well you don't want to have to be that hurtful and hateful doesn't impress me that much when on down the road there's an element that suggests that maybe for this particular tribe you do have to be either not technical terms you understand hateful and i understand but when we look at that that form of aggravated assault that we're talking about here and under which mr morales was convicted it can and include use of a deadly weapon and we'll assume that means a traditional one but go armed into george's ever expanding definition of deadly weapon is then this possibility that one uses any object without not that was generic i mean i really did think that the scenario to that is that that we're we don't confine the criminal law to the imagination of the perpetrator if the perpetrator uses something that most of us would never think of a deadly weapon in a way that is likely to be in the calls death or serious injury end and he did so narrow what you're talking about from what george actually criminalizes and that is the is likely to cause some kind of injury and attacking mode and when you say it is likely to there is a portion there is a way of committing georgia a two aggravated assault and that includes using an object in a way that is likely to and that would be the example to some fellow gave of stabbing someone in the back with the scissors yes we understand that's likely to cause that but there's also this other opportunity and this is the the crux of why georgia statute is so broad and broader than the generic definition and that is because you can also just do something without any specific intent and without any attacking neither in the context of aggravated assault nor elsewhere that i could find specifically describes offensively but we know from the decisions like chase and guys that judge william cited that georgia doesn't require any specific intent so we can't say that offensively important imports some kind of intent to injure into the georgia statue because that would be contrary to their own case law so that still leaves us the question well what does offensively if it's not to be superfluous you know in some can't legally context offensively means causing an offense or with something that has an offensive effect on someone and that's what i suspect it means here and that is consistent with the eighty language that allows a conviction just for the injurious the fact that this conduct general intent conduct ended up having on someone so i think that reading of offensively is consistent with the general intent only required case law with a deadly weapon and that second wrong doesn't get it all into the intent that you keep talking about true and the palomino garcia panel didn't define deadly weapon for the purposes of that but if we just look at a traditional deadly weapon of the model penal code black sister states here and there statutes all require either that the object be inherently dangerous to be a gun a knife or by the way it's used in that specific application that case is likely to cause that injury they don't go so far as to say what georgia does a deadly weapon is something that we can just look at and say after the fact a look at serious bodily injury occurred that must have been a deadly weapon but th understand it was talking about resisting an officer with the resisting an officer is that right it was the arizona aggravated assault statute and yes that was so that reasons that they didn't or take up the brick or the gun or any of the things we're talking about so if we start which we must with simple assault and the least culpable means of criminalizing that conduct placing in fear would you say that if the aggravator was with the intent to murder or that we wouldn't be having this discussion and all the later call considerations would be taken care of it's just the fact with a deadly weapon without any other language threatening menacing anything else that that the issue arises i think that's correct thank you