thank you your honor may it please the court to my friend mrs quinn my name's ron parsons appearing on behalf of the united states the subtext of this case is filled with moral philosophical evidentiary and even medical complexities that legislatures and legal systems have grappled with for ages but this case is about statutory text not subtext and we're dealing with a question of law not philosophy united states suggests that the strict question of law in this case is not complex and that the text of the controlling statute congressman acted is plain and without ambiguity the controlling term has been expressly defined by congress there is broad agreement that this court's role is to apply the plain meaning of the statutory text and when it does that we suggest that this court will conclude that the indictment charged a crime as defined by congress involuntary manslaughter by the poisoning and unintentional killing of a native american child born in a hospital insisted in south dakota who we know as baby boy pollute samantha food was charged with involuntary manslaughter under eighteen us c eleven twelve she was past her ninth month of pregnancy the baby was fully formed at thirty eight weeks inside the the womb she snorted lines of hydrocodone took three lorazepam pills and downed cough medicine shortly before giving birth in order to get high admitting she knew it was bad for the child but she needed to get high she gave birth to the boy who lived for four hours and then died from the resulting drug toxicity according to the forensic pathologist who d so i want to ask you a factual question about a procedural question about what's before us specifically there's a subtext to the argument made by opposing counsel that perhaps you know if you look back historically about the born alive rule in the common law basis for the born alive role there seems to be some jurisdictions a lot of jurisdictions that have a common law immunity for the mother and i'm wondering whether that's before us or whether that's something that would need to be sent back on re man no i don't think it's before you i think this is controlled entirely by the statutory text but the state of the common law as it existed when the voluntary manslaughter statute was adopted going back to coke and blackstone specifically stated that if a woman would poison her child and or by potion administer a potion that effects the child in the child dies in the womb that is not a homicide but if the child is born alive it surely is and that was the state of the common law and i think that's the law that was adopted in two thousand and two codified by the united states congress i see and so the text the definition of human being as someone born alive codified as well as the traditional common law rule going back to centuries six hundred years briefs didn't really get into the  that's right i wondered since that seems to be a premise of your argument that the statute is the common law rule but we had no briefing on what the common law was and whether there was a difference between a third party and a mother when it comes to night and honor stand the quote from cook but do you know of any english common law case in which the cook rule was applied do you know how the english common law developed between wrong on on the statutory tax adopted by congress and its plain meaning and i thought you were saying that the statute adopted the common law well you're not suggesting that maybe the statute modified become a law or it doesn't matter what the common law meant because the statute would have modified the common law if there was a common law distinction between mother and third party what's the basis for the well the you know there is no federal common law in this area it's entirely a criminal is entirely controlled by statutory is taxed and so the tax defines a human being and one u s c eight and any person in whatever stage of development who is born alive so that text includes baby bird flu because he was born alive therefore under the plain meaning of the taxed the killing of him by lawful means done in an unlawful manner using gross negligence and recklessness constitutes by the plaintext voluntary manslaughter as charged it's a crime we still have to prove when we go to trial if if the court reverses but there's no doubt that charges a crime in my view under the plain language of the text and see what it's carlton may be asking and certainly i'm wondering so even if you wasn't asking i'm wondering about it as nothing addresses the mother the only thing that addresses the mother is as judge cornerman talks about that two thousand and four act that says nothing in this section right up create applies only to the section but then what do we look at to figure out how to treat the mother maybe we go back and we look at the common law and then we've got to figure out what the common law was has to how to treat the mother and i'm just wondering what your responses to that now i think that's true that's one thing you can do is go back and look at the common law to see what's reasonable for congress to have done but ultimately i think it's controlled by what the text says and the te supplies any human being and it's not focused funds any person who commits the act so the class of persons that were in it it was designed to protect the manslaughter law is any a human being born alive in the class of defendants designed to punish or anyone who commits the acts described in the statute so i don't think this is dividing up into classes defendants up into classes has a has a statutory basis in the voluntary m lot applies to anyone who who commits these acts and i suppose to the extent there is a defense or an immunity some sort of common law immunity that's something that given the fact that we haven't seen a lot of that in the briefing that's something i would assume that could be decided on remain and you know if you want  course from the ninth circuit in the spencer case itself said in view of congress's intent to reflect the state in common law definition of murder they conclude that at least in a third party case the born alive rule applies so what do we do if the common law turns out to distinguish between the third party in the mother why do you say this statute wouldn't reflect that distinction because the text doesn't make that distinction as my only answer you're the t doesn't carbonneau that way the text tells us anyone born alive is subject to being protected by law under under the statute on that view then there really wouldn't be any defense  yours if the even if there were a common law immunity or common law distinction between third party and mother i think we are saying is congress superseded that and eliminated it that's right that's my belief  so we would have to decide now whether we think that distinction is built into the statute yes but that's your view and those positions remain what is your honor i think three men would just reinstate the indictment and we go to the facts proof and go to trial so what is it about the text that you think informs this question well the manslaughter statute itself  case no because we're talking about involuntary manslaughter and there it's it's defined in the commission of an unlawful act not amounting to a felony or as we've charged in the commission in an unlawful manner without d caution and circumspection of the law to act which might produce death and so the lawful act that was done here was the ingestion of prescription medications and over the counter medications in kind of a drug all that was taken but it was done in a lawful act can refer to the act itself i suppose in the i'm lawful point could refer to incorporating or bring in some of those common law immunities and common law concepts am i wrong about that it could i suppose but i interpret it as being in a lawful manner and being that she took three times the daily prescribed dose of lorazepam and snorted it in excess of what she could was prescribed and hydrocodone there so it was done in an unlawful manner but a cause of death and she admitted that you know could harm the child and so it was grossly negligent reckless without due circumspection so i think that's as far as you go there i don't think you go to the common law is my view coursed court i will go but i think the court can start and end with the text in this case ok that's a little different rationale arguably even spencer yes yeah and you know spencer was the case identified by judge korman where he said yeah this clearly was something that was intended to be prosecuted under the common law then as he said that but i don't know if he really  eight right in the labor statute change nothing in this case because it was clearly intended to know that the born alive rule as as where we want to call it the codification of the definition of a human being in section eight established a baseline level of protection that at least there will be this type of protection for anyone born alive any human being at any stage of development born alive in two thousand and four protect that was another area was carved out  with the lacy and connor's act that said that well if you kill or injure an unborn child in the mother's room womb and if it's done by a third party who is not authorized by law to do anything to it so it additional protection it didn't do anything to restrict who could be charged under the involuntary manslaughter statute and it didn't do anything to restrict the otherwise a pleasurable definition of human being  governs all other federal statutes with the exception of this new act with respect to the two thousand and two act the federal definition act change the federal definition statute did that did manslaughter statute was passed now in two thousand and two everyone's a notice this is exactly what is meant by human being in every federal statute including the manslaughter statute and it's anyone born alive and so i think  it's whether or not in one thousand nine hundred five this conduct was part of the common law when the voluntary involuntary manslaughter statute was passed ultimately is not controlling because what controls what congress defined in the two thousand and two statute you know one other question that i have that bothering me is what about our montgomery case i know the parties have talked about that that's the one with the kidnapping and we just flat out say in that opinion that that under the law you know a fetus is not a human being period the end and here are the acts that caused the damage to the fetus which eventually led to the to the child's death under the born alive rule if it applies occurred while the we we didn't have a human being and so is there any is there any significance that montgomery case in your view and how would you how would you propose we get around that i think it is our argument in this case because what judge woman explained in in montgomery was that the statute defines the term unborn child and limits its definition to eight hundred forty one limits its definition to the separate offense created by the least and connor's act and because the definition of unborn child only applies to that act the regular definition in section eight of human being or person applies to the kidnapping statute and so because the victim in the monkey army was not born alive that definition didn't apply the the kidnapping statute didn't apply for that reason the court proceeded to thought your position had been earlier in the briefs that the later statues didn't affect the meaning i think that's true which is true it's true that it doesn't want to add five more minutes to  ok i understood that point yeah i thought you were just a minute ago making a different point about the zero two statute well it made it even more explicit i think it ratified the same thing it made it more explicit it said this is the statutory definition of a human being anyone born alive that text wasn't in the voluntary manslaughter statute i suggest that was the the effect of the meaning of that textual language even in the one thousand hundreds but by night by two thousand and two we know for certain certainty that a human being born alive this is if they're killed that's involuntary manslaughter if we can prove it at trial do you know of any  precedent for this sort of prosecution in in federal court as any other u s attorney brought this kind of case that's unreported or that we might not know i'm not aware of any you know the jumper case was the closest that we could find and that wasn't drugs that were ingested it was a an attempt at home birth where it was involuntary manslaughter conviction was affirmed because a woman very recklessly attempted to give birth at home and then did not call the doctor after the baby was born the baby was born alive and died so that's not very proximate but that's the closest case we could find the reason i think is because normally involuntary manslaughter is not a federal crime it's almost always a state crime here it's different because it with the mother defendant or third party it was a mother defendant and then the other was state versus mcknight south carolina they're not i'm totally on point because in these cases the state law cases depend on there are statutory definitions of person and human being and sometimes the terms are different and child endangerment acts and manslaughter statutes but i don't want to represent that she went on mcknight are directly on point but those were the two cases that seemed closest to the principles that we're relying on  hear from you why don't you put twenty minutes on the clock so everybody has the same amount of time even if the child is born alive and dies after birth the involuntary manslaughter statute perhaps the only awful killing of a human being congress is defined human being as a person who is born alive and in the stage of development misleads alleged conduct was all before the baby's birth it was not against a human being at the time the involuntary manslaughter statute should be read to require a human being victim at all stages of the offense at the time of the actor the conduct as well as at the time of death counsel that's that's been your art from what i can tell that's  argument throughout it's the argument that the judge corn manager asked and what i'm really really struggling with his suggestion in your brief about about the common law immunity really wasn't necessarily developed i'm trying to figure out where that fits and because you know at least in state court i'm not sure if this is the federal role but i assume it is even immunities have to be raised by the party claiming the immunity and so if it's not before us you know is is that particular question to the extent that there's a separate sort of extra statutory immunity or something like that is that something that's before us in your view or not our position is that there really isn't a born alive our position is that if you have to go all the way back to the which is this to you to the defendant here this is a statutory case and i think that's the way that the district court also treated am i right about that yes i think the common law comes into play because i think the piece that is missing from the government's position is that they have to prove that ms fluke or a woman based on her personal conduct could ever have been charged under the statute at any point there are some arguments in the brief about well later statute didn't take away that ability but i think the piece that's missing and that we don't think exists is that there's ever been an ability under this federal statute to charge a woman with respect to her prenatal conduct and so you get that from the zero two statute as opposed to the manslaughter statute right i mean are you saying never i don't have any is even before two thousand and two but that's correct we would take that position we're not a law we're not saying that she's immune from liability we're saying that federal courts have never adopted the theory of liability for mothers prenatal conduct the only articulation of the born alive rule that we can find in federal cases relates to a think spencer is wrong and spencer was the law at the time our position is that now the definition of human being tells us what a human being is the spencer case was using the born alive rule to tell us that a human being included a child who had been born alive but died as a result of prenatal injuries and so now the contract by a third party is that covered so say instead of the drug the drug you know carm say somebody comes in and punches the mother here is that third party liable in the baby dies after being after being born as the mother or is the third party liable under that statute as it exists now no not under the statute and we don't have to resolve the case for all third parties everywhere but i know you weren't interested in looking at eight hundred forty one but i think hundred forty one even though it's not the statute charged here and it doesn't provide a statutory defense to this prosecution congress may clear nine hundred forty one that they're not just kind of patch working liability for a baby who is injured or dies in utero there as the committee report says they're dismantling eliminating and replacing the born alive rule so our position is that as we stand here today we don't believe that a woman could ever have been prosecuted in the united states court in a federal court based on her prenatal conduct that resulted in the death of the leader born child that federal courts have never adopted any statement of the common rule that incorporates that type of liability also there's a definition of human being that is not in the now or in a post two thousand and four world or congress has said we don't like what the the common trend is to abolish that rule we're going to follow that too and we're going to eliminate it and replace it with this definition so your argument really requires us i mean it's sort of a circuit case but the implication of your position is spencer is wrong i mean at least  eliminate the born alive rule i mean the born alive rule was based on the idea that you had to have a human being who is independent of the mother in order to be have a crime but we have it here i think this section eight it's starting to cover conduct that occurs after the birth of a child and i think it is useful to look back at the statement of what the ninth circuit was doing and spencer when they said the born alive rule situation where there does appear to be some ambiguity over whether this definition is intended to reach pre birth conduct and looking at the legislative history of the two thousand and two definition of human being that makes clear that congress is drawing a bright line between pre birth conduct in conduct that takes place the killing or criminal neglect of a child after that at any point after they're born alive that this statute takes effect upon the life birth of an infant so i think if there is any ambiguity over what the definition of human is being with respect to the common again our position is that it has never been adopted in federal courts to include a mother's prenatal conduct but if there's any ambiguity over what that statute is doing with respect to that common law rule the legislative history says we're drawing the line at conduct i think you're right maybe i'm wrong about this and maybe i need a little help to follow your argument but i think you're relying on the two thousand and four law and what i'm trying to figure out is under your view under what you're articulating to us now what does the two thousand that a human being a person an individual a child is any infant includes any infant who has been born alive in any stage of development it provides a definition for what it means to be born alive and that's not limited to any like long term likelihood of survival or age of to station or anything like that died when he or she died that's not inconsistent as that with the two thousand and two law i think it did say that but it also said that a human being includes an infant who was born alive who later dies as a result of fetal injuries and i think well what's wrong with that why is the two thousand two statute inconsistent with that i think if there's any doubt when we look at that legislative history and it says that this definition takes  of in the reason or the reason that that distinction would make sense in the context of the involuntary manslaughter statute or another generally applicable statute is that a third party's conduct is against a human being at the time that human being is the pregnant woman but a woman's prenatal conduct her purely prenatal conduct is not against a human being as that term is defined by statute at the time so that would be one reason why a woman might be treated differently under the common law or by the statute you have any common law that that means that the common law doesn't cover that conduct i think in order to apply a federal criminal statute against a criminal defendant it at least needs to be clear that that was the state of the common law and that congress has incorporated either by statute or just by the way that the comma worked when we enacted statutes that congress has interpret has incorporated that rule as it applies to a mother's prenatal conduct well let me let me help you a little bit if you're right there's not a lot out there on the mother but  e teach criminal law and the born alive rule but the legal fiction underlying the born alive rule is that it's that homicide unlike many other crimes as a result crime it's only can and i think the government's brief makes this point it's only complete when the death occurs no matter when the acts of courts unlike kidnapping like in montgomery and other crimes that we've looked at and so the when the crime is completed you determine whether or not the victim was a human being and here because the child was born alive and died while the child was alive it's a it's the that's what the born alive rules all about and i guess i'm trying to figure out that to me the two thousand and two act says exactly what i  and it certainly does not abrogate the common law if anything it supports the common law so what am i missing here i mean what i just can't get my arms around where you're going with your argument and can't be charged until there is a death but they're saying those cases say that this is a composite crime meaning it is the conduct and the death and you have to have both to make the offense and so our position is that when you're interpret in a federal criminal statute you need to make sure the statute applies in all respects at the time of the conduct not just at the time of the death what's your authority if you do you have any authority that says that i mean the born alive or was nearly a unanimous rule and state jurisdictions i mean there might have been a few that didn't adhere to it but it was overwhelming more than ninety percent of the jurisdictions is there any are there any cases state cases that make the distinction that you're drawing where if the if the conduct the causes the harm preceded the birth that that somehow the that's important to under and disarming a homicide whether somebody committed a homicide not as a matter of common law there is the ashley case from florida that has a broad statement that look the best we can say is that language in one of these days we've been talking about the manslaughter statute or the two thousand and two and can you point to one statutory language that supports your i can i guess i would go back to where i started which is that manslaughter is a killing it is the commission of a law a lawful act in an unlawful manner of a human being and at the time of the commission there isn't a human being victim as that term was defined by statute and then i think our position is that eight hundred forty one although it is in the statute charged here does have a role to play in that congress and that statute says we're covering conduct that occurs or that that that has the terms at the time that at this time the conduct takes place i can see if there's any ambiguity that we can go to the legislative history and that's pretty clear that for whatever reason congress has made the policy decision this takes effect at the time of a at the time of birth and therefore things that happen pre birth don't meet this definition things that happen after birth do the killing or criminal neglect of a child once it is born and i don't want to kind of pick up on that eight hundred forty one point again that again the history of that is clear in the text of that i think is clear and if there's any ambiguity the history makes it clear that at this point after the two thousand and four statute there is no common law born alive  or it has been it's been replaced by that statute that a third party's conduct gets charged under this statute because it covers conduct that occurs when a child is in utero and that otherwise you have this approach where we're in a situation like we're in here where we trying to figure out parsing based on the time of the outcome of figuring out what exactly is the time of the outcome to decide whether a person is liable and not in congress that we don't like the limitations that the born alive creates for third parties and so we're going to dismantle  manslaughter statute and supposed law that there was english common law distinguishing between the mother and the third party or there are some common law basis for that distinction what do you say about mr person's position that the congress overrode any such distinction in the manslaughter statute or versus the position that it adopted the common law which arguably is what spencer was suggesting disagree that congress rejected any immunities that existed at common law and is i'm sorry i'm not sure i understood the question well i don't know if you'd be immunity or just some kind of distinction between mother and third party that was reflected in the column but i think the government's position was that because there's no textual distinction in the statute if there were such a distinction in the common law it's been super seded but we have spencer saying congress was intending to adopt the common law i just wonder if you had a view on that if you thought about that i don't think there's anything in section eight that tells us that if anything i think at best for the government at worst for us it's codifying the born alive rule as it exists at the time and if women were never able to be charged if the common law more liberal just didn't reach a mother's prenatal conduct then there would be nothing for is there you know when they abrogate the common law does anyone state court do you have to abrogate common law you have to be clear about it clear and man a manifest language or whatever is or any such canon and under federal criminal law i guess my point i really don't know if there's a particular rule about whether just in acting a statute would be enough that's defining a term that the common law was addressing or not what about montgomery montgomery actually you got to read it broadly but it's seems may seem to be helpful to you and i'm wondering i'm wondering what your interpretation of montgomery is we definitely think that ruling it misleads whoever is consistent with i'm not going to be case and i think montgomery doesn't evolve factual in statutory differences that just aren't present here but at the core of montgomery i guess with the question being is there a sequential timing requirement for a kidnapping to result from the death does the death have to happen after the kidnapping or not in the answer is no there's no sequential timing because the word results is broad but in order to get to that question the court had to say had to acknowledge that before the child was born the child is not covered by the kidnapping statute in other words the child was not a person within the meaning of the federal code because that does have the same definition as human being in section eight and so i think that from what you what's helpful for my grammar is helpful for our position and that that supports your view particularly as to a conduct crime the only question is whether homicide is different because it's a result of crime and we've already discussed  you your honor there is no taxed that limits the involuntary manslaughter statute to pre birth conduct there's nothing in the text that has a distinction as to when the act that resulted in the killing began and this is a continuous crime we're talking about drug toxicity the snorting of the the hydrocodone in the downing of the other medications occurred pre birth and those drugs then operated eventually to kill this child four hours after he was born and so without the killing there is no crime there's no involuntary manslaughter course that's why there can't be an attempted involuntary manslaughter because you can't attempt to in voluntarily kill someone it is by its own definition unintentional it's grossly negligent and you had fair warning that it could produce death but it is not a crime until there's a killing and so suppose though and that brings up an interesting theoretical question suppose that this was an intentional crime suppose she intended to kill the child she didn't want the child and she started to ingesting these drugs while you know while the baby was in utero babies born no problems with the baby could the united states charge attempted murder under those circumstances i and i don't have the murder statute in front of me but i think if the child was born alive that's quite possible under our argument here but i don't have the text of a federal murder statute in front of me of course it couldn't be manslaughter involuntary manslaughter because it was with malice in the greater scenario there is why i ask is because the might be different because that's a conduct crime versus a result crime you don't have to wait for the death right but clearly with involuntary manslaughter there is no crime without a death the death the killing is the crime and there is no distinction in the definition a human being or a person and section eight that addresses it all draws a line pre birth conduct and post birth conduct that's a line that congress needs to draw and that's where the argument that this is not a crime should be addressed what similar hypothetical scenarios in your briefs as well we don't have to worry about that because those are before us well we might have to worry about it if the logic of what you're asking us to do would authorize all of these scenarios so would you like to address whether there is a limiting principle here that you might suggest or whether we would in fact be endorsing the various scenarios that judge government and other courts have suggested think the limiting principle i think is is the state of mind in the statute extreme recklessness gross negligence involuntary but knowing knowledge that this will stop argument is defeated by the fact that the discretion of the united states attorneys not the discretion of his state's attorneys but by the confines of the statute i think you know drinking caffeinated beverages could never  principle you mean because it wouldn't cause death or because it's not known that it would or what's your point i think both i mean the point is although it's not much of a case if it wouldn't cause death it's never good and the judge korman was talking about alcohol and chemotherapy and negligent driving and perhaps the best example might be drinking alcohol on a friday night or several friday nights you know it eventually harms the baby you know a killer if you know those are the real scenarios that he was he wasn't talking caffeine as i recall thirty eight weeks if you're downing you know two bottles of vodka thirty eight weeks pregnant i think that would have been an potentially reckless state of mind ultimately these are jury questions reckless driving speeding leading to an accident that those are cases that may eventually have to be addressed i think it's unlikely because i don't think those would be charged but if they were charged then then a court ultimately have to address those cases but i think this case next the logic of your position would authorize prosecutions in those cases or not i don't i don't think no necessarily would because when you're a speeding you're not necessarily on notice that what you're doing might produce death to the baby i think the time that's two ten you waited a connection i think i don't think that would be a case of be charged and so i don't think that ultimately of course as you know we all agree that doesn't affect how this case should be resolved the thirty eight week drug poisoning we asked at the court that there would be no little difference in  possibilities here would not be out would not be out of the question you know the chemotherapy that brings up the question of you know the lesser of the lesser of two evils kind of situation but that the others perhaps would be a they perhaps would be and that's why we do have you know united states attorneys make those decisions juries ultimately decide if the conduct qualifies and then oh that's our system we're never going to have a voluntary manslaughter statute that lists all the different types of things that might qualify it's a general intent crime and conduct that rises to the level of extreme recklessness qualifies under the statute and i think that makes the statute vaguer or  madam clerk please call the next case for ar