think you are a please the court the issues that are before the court today are number one is a juvenile transfer or and an appeal from that a civil peel or a criminal  and the second question is is the indiana attempted robbery offense does it fit the definition under fifty thirty two of the juvenile act as a violent felony  first of all with regard to the what is what is a juvenile case i believe we pointed out quite extensively in the brief that juvenile cases have been considered civil proceedings in almost every well in every case that we reviewed i would note that the government has pointed to no case where any court has said an appeal from a juvenile order is a criminal appeal they the government talks about status that now the transfer been granted that this is a criminal appeal and would note that the criminal case arose after this order was entered by judge jensen the criminal cases before judge rule otherwise the confusion that i believe it would create in regard to federal juvenile cases would be extensive because at that point in time it becomes a matter if if a juvenile case is quote a criminal case for appeal purposes then why is it also not a criminal case when it comes to regarding the right to have a grand jury indictment the right to a speedy trial under the criminal procedures and do all of the criminal procedures under the at the trial level now applied for proceed so we believe it is timely and moreover we don't believe that the government was in any way persuade or prejudiced by the fact that this notice of appeal was filed under  other lot of hybrid situations such as twenty two fifty five where there certainly is a criminal background i'll just say to the case a powerful criminal background threat they're considered under the the second point suppose you get over this timeliness business and the appeals is timely filed there are some pretty broad language it in hill about attempts being crimes of violence if the underlying thing you're attempted robbery cases for i think somewhat different than every other state attempted robbery interpretation the indiana district court and the court of appeals that made it clear that in indiana you do not have to show that the defendant intended to complete the crime of robbery as an element of attempted robbery i would note that if if you look at intentional taking a property from the person of another by the use of force certify using them in writing the use of force so i wondered how you were saying basically that if you if you take if you threaten to threaten someone if you are taking a substantial step toward threatening maybe you're not taking a substantial step toward the next point down that line the actual use of force that the problem is is that under the substantial step and i believe in the in the brief we talk about this this statute comes from the model criminal code there is an outline of actions that can be substantial steps  and reviewing those there are many of those which have nothing to do we have attempting to use force or attempting to threaten the use of force and so tell what would be the scenario under which a defendant engaged in conduct that constituted a substantial step toward indiana robbery by the in which there was no proof that intended to rob us you know i think the talk about say that driving a getaway car or getting a getaway car you know sitting in that car which could be a substantial step towards commission of a robbery down one of the red herrings that the government uses is in in the indiana cases in trying to define what is a substantial step for committing the crime of robbery ok they they go back and they say that if the actions or conduct suggest that there is an intent to commit robbery then that's a substantial  now that definition is not an element what they're doing is defining what a substantial step is but does the government have to prove that the defendant intended to complete the crime of robbery no well that's a distinction you're drawing here page twenty of your brief specific intent to complete the crime here to rob versus specific sometimes but not for all some raising the indiana courts have to said that does not that specific intent that general tend to complete the crime does not apply with regard to robbery and any other attempted crime beyond murder and so you distinguish i'm just going to summarize because you're pushing up against your rebuttal you would just say hell is fine for statutes that match the illinois statute in indiana doesn't therefore doesn't control yes that's that's our think ok thank you mr right rationally said if you have specific intent to commit the crime and that must mean you have specific intent to put all the elements of the crime in place your honor i think so if it did indiana seems to have a strange and unusual definition started there i don't think it's strange i mean in this context we've always looked to the model penal code and the model penal code says attempt says that attempted with the culpability of requisite for the underlying offense and that's exactly what indiana statutory language is different and i worry about the incident regression a person who knowingly or intentionally takes property from another person attempts to commit a crime when acting with the culpability the person engages in conduct that constitutes a substantial step so if i take a substantial step toward threatening you you know i write a letter to threaten you have i taken substantial step toward robbing you a couple things i think first of all or maybe i threaten to threaten you we think well first of all we think threatening to threatening is contemplated by the statute right into the threatening to threaten well i think there is some line where it would no longer even be attempted robbery and i think we're in the land where we're searching for hypotheticals and using our legal imagination which was to create or to scott you should so what if what if somebody intends to hold up a cashier in a seven eleven and they don't want to use a real gun because you know that would be dangerous and they don't want to suddenly go off and they they're stocking around in front of the seven eleven and a police officer arrests them before the cashier has been threatened conviction for attempted robbery or no i think the jury believed that was a substantial step yes that would surprise so where's the threat for force let me say after twenty three years as a federal judge sometimes you say things you say seem obvious to you in the case before you and then you suddenly discover that there's a set of facts that you didn't know about before and you look at the language from the old case and you say what was never intended to meet this other set of facts so if indiana has a different statute don't we have a duty to look at the indiana statute that is actually the one at issue in this case for whether this young person is going to have a mandatory transfer and make sure that we're looking at indiana law correctly and i think it's fair to say that you have to look to indiana law but again hill was very broad my talking about indiana law that i think you'll have to be understood as feeling attempt is how they normally are and again how the model penal code is and it's very common for attempts statutes to say with the culpability those quotes in two thousand and five defining attempted robbery do not require the the state to prove that the defendant intended to commit robbery that is using intent in the terms of the legal term of right that aren't is not our business yes but that allows for a knowing or intentional robbery which again we're not dipping below the requisite mental state that the supreme court is worried about we're still above the recklessness we're in knowing or intentionally so i think that is so where do you see indiana is indiana doesn't require specific intent to commit the underlying crime then it's different from illinois i don't know why it clearly does require i think it's to distinction based on knowing or intent it wasn't required to it did not have the indiana law in front of it i think that understanding is fair but again the supreme court has never drawn the line for these types of fences billowed knowingly knowingly is counted for all act for sixteen b for everything it's full when you get below the knowing leave that's been the problem and indian it is above reckless we are of no excuse and i think you're talking about something that's off the point we're trying to figure out what whether this is a crime of violence right we're trying to figure out whether in indiana a conviction for attempt is broader than the usual conviction for attempted it seems to me and i think hill adopted more so we would go back to judge hamilton's concurrence and morris and more and more it's positive essentially the exact hypothetical that we would be talking about an attempted murder and it said of course this is the type of crime and in indiana it would be too because of the way the indiana statu indiana in illinois to if it did i'm forgetting your honor i'm sorry about that recently but is it your are is it your argument that indiana does not explicitly  require the men's wear the intent as illinois more clearly does but that it does require a narrowing and time in other words the person asked to know that they're on their way to rob a bank in intend to do it as opposed to play acting for example and so is what you're saying that that indiana doesn't require intentional because you can dip down to knowing because again as many attempts statutes do it's the you have to act with the requisite mental state of the underlying offense so that's what indiana does and to yes there is nothing to suggest that knowingly and knowing attempt is insufficient under this crime of violence jurisprudence i think going back to your honor's question to my opponent about a hypothetical where this wouldn't and there is no hypothetical there certainly no indiana case that's defined attempted robbery in a way that wouldn't square with our common understanding of what a violent offense is it would always have the element the use or the attempted use of force so we're at best for t t p we're in this hypothetical legal imagination world which the supreme court has cautioned against and there is no real world real case example where we would think yes this is clearly a crime of violence because  attempted robbery falls within the language and again i would put i thought you did concede that the link between the substantial step and the use of force at some point becomes two and ten you waited and you agreed in my hypothetical that there would be guilty of attempted robbery even though he is walking around outside with the toy gun and he never even makes it inside and i presume you would agree that that the other threats to you know even in a funny way to scare somebody would would also be attempted robbery but if i could start right if i did concede i certainly did not mean to every think that every single attempted robbery conviction is a crime of violence  because the statute contemplates attempts the statute because so so you could attempt to rob somebody by sending them an e mail saying that i'm going to send the chicago police in to take all of your goods away and that would be attempted robbery that would be threat of violence yes so i think that hypothetical something what this court talk about and duncan the threatening email and that's not really what indiana robber is about in fact  tomorrow what we think that's a threat your honor i don't think there's any distinction between a threat the threat a threat the threat is a threat if i if one says i'm going to threaten you tomorrow that's a threat ok i mean it's a very proof involving the use attempted use or threatened use of physical force the government would have this court defined that section by saying if it's a violent  substantive crime is a violent crime then any attempt therefore is also a violent crime now this use of the word violent crime is just a generic term that we use but the statute talks about elements indiana does not require an element of proof for attempted robbery that to defend it used attempted to use or threatened to the use of physical force now going to this mens rea a requirement that the government is trying now to add on to indiana's attempted robbery if you look at the instructions that the jury is given in an attempted robbery case it does not say that they knowingly or intentionally committed the crime of robbery or that they intend to can commit the kind of the crime of robbery or that they has a conscious objective to commit a crime or robbery it just says they committed a substantial step toward the knowing or intentional taking a property from the person or presence of another by the use of force threat of the use of force or by putting them in fear now if i think it's important if you look where the knowing were intentional is it's not saying they knowingly or intentionally intended to commit the crime of robbery that's not an element of proof under this interpretation of attempted robbery in indiana it is an anomaly hill applies if you have a state statute criminal statute which says that they must be there must be an element of proving that the defendant intended to come met the crime of robbery when they committed the substantial step towards the commission of robbery in vienna does not require that that's the difference and you can't gloss over that and i think in finally i'd point out that the court in hill and just judge hamilton in his opinion looked at specifically the word the phrase intended to commit the attempted crime ok that was what the judges inhale and what judge hamilton was looking at that doesn't exist under indiana  therefore this is not does not have an element a proof that fits that definition under fifty thirty two you know the reference to the model penal code and i made that reference