good morning richard roam for mr davis you made the arrangement of time it what we're going to do here just for the courts information on my case i want to address the nine twenty four c e issue  the drug related argument i'll defer to co counsel in joining or legal arguments there i think they're relatively similar here so in this case mr davis was convicted of three drug counts and a count of one count eight of using in hearing a firearm during a crime of violence or drug trafficking fine that's eighteen u s c one thousand and four c it's our contention that that conviction needs to be reversed based on some of the recent case law that's developed for convention on that count it requires two elements using or carrying a deadly weapon and that has to be done during a crime of violence or a drug crime so factually in this case the defendant was found with a weapon a weapon was found after he was involved in a car accident and went into his relatives apartment or residence so the issue here terry make yes he was carrying weapons so that's really not the issue the issue here you're not raise you not continuing with your argument that there was insufficient evidence to find that he was in well it was i don't know if they stipulated i know that it was in the jury instructions it was considered to be a crime of violence the conspiracy to commit rico so let's you completely other i thought that you had stipulated that it was a crime  well i guess if it was in the jury instruction i guess we could look at it as a stipulation whether they stepped separately stipulate on the record i can't recall that specific fact at this point well ok what is your argument as to why i thought your argument was going to be that the rico conspiracy cannot be deemed a crime of well it can't be what happened after the conviction of course how is not argument before as if your client is just you just mentioned well there's been a change in the law since that case came down which is the johnson endemic cases so i think that that allows us to raise the question as to whether that issue was is now a viable issue and that's basically where we're at here because just maybe you know try to let you know where my thinking is yes and because it's in your favor but maybe you'll  me if i've got something wrong it's in my favor it's and you got it right you would say that the only way that the rico conspiracy charge could have been deemed a crime of violence before was under the the residual clause that that's correct it was albert that has been struck down and we go to the elements clause it doesn't match because some of the predicate offenses for rico can be nonviolent crimes that's just well it's that's part of  yeah sixteen b is struck down nine twenty four c three d so the issue now is whether under nine twenty four c three a that conspiracy to commit rico is a crime of violence and  if i can just read the sentence would that what that is the a section is it's a felony which has an element the use attempted use or threatened use of physical force against the person or property property of another and so the conspiracy to commit rico it does not have one of those elements as it well it's really an agreement could do some good because what you're going to end up doing i assume you agree with this is going to look to the predicate offenses that form the basis for the rico charge right well i don't think we need to do that anymore i think and have to there's no other way to the well if you the court looks at the twenty eight j letter and basically the question is is an agreement this is a conspiracy to commit rico is there is an agreement considered to be the use attempted use or threatened use of physical force right and let's say all of the predicate offenses for the rico charge or murder that's all of them that's the only thing the government charge was murder on five ten fifty one hundred different occasions those are all the predicate offenses for the rico conspiracy you're not going to be able to argue that that's not a crime of violence it's not because it's not the use of a motor it's not the attempted use or the attempted murder and it's not the threaten murder it's an agreement i can these any conspiracy would never fulfill well according to it wouldn't it fulfill it under this section and that's with that i think that that's basically what we're what we're finding let me just point i don't that just doesn't make sense any sense to me at all but let me point to you a different argument that i think maybe you could make with a little bit more success am i right in remembering that here are the predicate offenses for this rico conspiracy consisted either mainly or maybe exclusively of nonviolent offenses well they were substantially drug offenses but that's all that's true so why don't you just argue that in this instance we don't know whether the jury necessarily found that your client agreed to commit any act of violence because it could have convicted him of the rico conspiracy soley on the drug trade well that would be one way to look at it i think well i guess i could say to her battle but the government's going to say that he was involved in some type of the murders and i but the jury did not have to find that in order to convict him and under the category approach isn't that what we're supposed to that's correct and the categorical approach is basically in agreement and so i would i thought with the court saying i would say that that is another argument we could say that we don't know what they were agreeing to because it was primarily drug offenses but i would also say that when there's just an agreement to do something and we don't need overt acts for rico then that's that's that's really attempt you're saying conspiracy to commit murder that's not a crime of violence really not not for purposes of not for purposes of i'm sure we have a case that's not the purposes of nine twenty four c three you have a case that says this might be the case it will say it but well we certainly don't have to get there because as i say well the predicate offenses are not murder and well we could say that primarily that it it  understand what the court saying is that it could we could consider it to be a drug offense and that would be another way to fall within where would not be a crime of violence so that's the alternate that would be the alternate argument eat under either of either of those arguments i would i would request that the court set that aside in this particular case there was a five year consecutive sixty month sentence that bump his sentence up to three hundred months  and i think that the court can strike that and get rid of that and perhaps remain and whatever the court would want to do on a sentencing i would like to reserve a few minutes for rebuttal i think co counsel will have an argument on  the government's arguments on the rico conspiracy any time you have a gang member who's selling drugs you're going to have a sufficient evidence for a rico conspiracy and that cannot be the case there has to be some proof that the person who's supposed to have joined the rico conspiracy had the specific intent to move the rico operation enterprise forward and in this case even though there was some expert testimony that some of the different members of the bishop's scaling were splitting up their drug proceeds and sharing them there was no evidence that mr laws was doing that he was primarily just a drug dealer he  been taking advantage of the fact that the bishops controlled fish drug trade area but there was no evidence that he specifically did that it's just he lived in the area he was a gang member and he was selling drugs and there wasn't evidence of the specific intent to move the rico conspiracy forward so i would like the court to consider that when it's there wasn't there testimony that he brought some of the other gang members along that he was helping them working with them in buying and selling and also making crack cocaine and that they were doing it for the the gang i disagree that they were doing quote unquote for the gang he was using another gang members property and i think it was a mentally disabled man named george who he was sort of using to help cook up the crack cocaine that's true if you disagree with that contention or you disagree that there was any evidence that would support that i disagree that there was evidence that he was selling drugs on behalf of the gang that it was it was personal he h drug some of his drug contacts were fellow gang members but i think there's a distinction between doing something for the gang you know for example and it seems like there was a lot of testing people who were former gang members and senior gang members founding gang members i mean this is find a lot of information remarkably actually about the workings of this gang and how one of the  purposes was to enforce this drug monopoly and the measures that gang members talk and in doing that including there was mr laws may have drugs i don't believe i don't recall evidence of him boasting of working with others he did boast about being a gang member he did boast about being a drug dealer well and could draw a reasonable inference which is what we're looking at because you're challenging the sufficiency of the evidence that was presented at trial the jury could draw a reasoned inference from all of that evidence that was pretty presented that that was one of the purpose one of his purposes of selling drugs was to benefit the gang gives further the objectives of the bank and you know i suppose there are game cases in which it's clear people are in that you know committing robberies and selling drugs for example to put money on the books of incarcerated gang members we know that the mexican mafia is very well known for her requiring the people send money to public and they in all the other places they are there wasn't any evidence time specific evidence t mr laws in that way and i think it's too much of a leap to say he was doing it to benefit the gang as opposed to benefiting himself being a selfish individual but i concede that there was quite a bit of thinks is appropriate in that regard the only other point i wanted to make in terms of the government's legal arguments on the drug conspiracy is that the government placed a lot of weight on the fact that mr laws was buying drugs from other gang members then redistribute them does not necessarily make you a member of a drug conspiracy there has to be for the behavior beyond that and with that i'll submit thank you accord on behalf of the united states good morning your honor sir and i was proud counsel at the underlying trial in this case maybe you can start with the nine twenty four c count because as i indicated when your opponent was up here i am troubled by whether that conviction can stand given the way the predicate offenses for the rico conspiracy were charged here so maybe walk me through why you think under existing law that conviction is still valid yes  still believe in re juvenile male provides helpful instruction on how to do that and that that is the fact that you do have to look at the predicates in order to determine what the racketeering conspiracy is there is racketeering conspiracy that involved no balance whatsoever for commercial fraud those have to be offenses here we specifically alleged and it was proven at trial over and over and over again that this was not some white collar record he conspiracy these were murders well robert assaulter saying on and unfortunately don't i don't have the jury instructions and the verdict form in front of me but you know you've got him i guess i recall the jury instructions didn't they mainly say that the predicate offenses were drug trafficking crimes or at least at least one of the predicate offenses mentioned there was drug trafficking which i don't think would be deemed on its own correct yeah it was not exclusively like your example previously wasn't all murders or all robbery murders drug trafficking was one of the predicates and ok so and just then remind me the verdict form didn't require the jury to specify which of the predicates it did not ok so if that's true then why under the supreme court's categorical approach case law aren't we stuck with saying we don't know what the jury actually found as the basis for the rico conspiracy conviction it could have been based soley on drug trafficking offenses which would not qualify as crimes of violence under under the a part of the statute yes and i think even using that approach to the fact that the conspiracy alleged does in fact involve crimes of violence so they're intertwined with each other there are nonviolent racketeering predicates but they go hand in hand with the violent racketeering predicates and my understanding of of that approach and how it was and why it wasn't  was argument regarding whether or not recall was a crime of violence i don't even know if it reached the argument stage but in our proposal for jury instructions we provide support that indicated that rico was a crime of violence where the underlying murder robbery including hobbs act robbery drug trafficking or the three main record predicates along with the witness intimidation so for you to have the jury instruction there i  just forgot to bring it down can you just look at that and just tell us from the jury instruction what the jury was told the predicates were because i thought it was skewed more heavily toward drug trafficking but maybe i'm not remembering that right it would take a second i only have the verdict forms for both of ok well i'm sorry i don't mean to interrupt your argument if you don't have it and that's fine yeah i thought i'd saved it on here but what's my recollection that definitely drug trafficking was them was one of them and a significant one ok so just go back to the my question though and i guess if we're looking at this verdict and we're trying to figure out what did the jury necessarily find as the basis for conviction isn't the most that we can say is that it could have rested just on the drug trafficking offenses alone i think and the way our position at this point is that in the way the case was charged involving the crimes of violence as racket predicates necessarily it was what established that enterprise and we do think if you just look at the the offense itself the conspiracy to engage in racketeering activity here we defined what that record to an activity is and just looking at it from that perspective it does identify crimes of violence but i see your point i mean i just all i'm saying is that the jury could have heard all of your evidence can i agree there was evidence of violence robbery murder whether the defendant davis was directly involved that's another story but certainly was part of the overarching conspiracy but let's say the jury just said no we don't buy any of that or at least we don't think that davis had the requisite mens rea with respect to those offenses but it's clear as day that the guy was involved in drug dealing so we found more than three predicate drug trafficking offenses that's enough under the instructions that the judge gave us to convict him so we're going to convict him and if that's all we had then it seems to me you're not going to be able to s sustained the one twenty four c count as to that conviction as a predicate right and i don't know if that is correct because the argue would be that it is not just coke and it is not just defendant davis's personal activities in the racketeering conspiracy it is all the and no i'm agreeing with you and i'm just saying when we look at a the verdict form which doesn't say we the jury found these predicate offenses are wrecked so could have just found only drug trafficking offenses right because the sole basis for the conviction in that scenario  the remedy here we believe the evidence was overwhelming that the record during conspiracy was a crime of violence and i think enraged juvenile male still in his role as evidence may have been overwhelming yes that the racketeering conspiracy was a crime of violence but the jury was never asked to make that determination of the predicate offenses and we know based on case law that came out subsequent to this that there were at least some predicate offenses that were charged that don't fall under the definition of a crime of well they they fall under the c three c that they do is filed the case and you just answered straightforward what would happen here if you vacate if we they thought it was that would happen we would vacate the nine twenty four c correct and then so the additional how many years did he get based on he got twenty five years so i would be down to twenty years so i would require vacating the one twenty four c in reducing the sentence from twenty five to twenty years and what's your best argument not to do that go back and back to the overwhelming evidence that not only that this case this enterprise was engaged in regularly or significant violence on behalf of the gang on top of that this defendant davis specifically was one of the leaders he was known as a its title because he killed people he shot people he beat people he robbed people almost all of those activities with guns and that was clear from the record it was clear from how many times frankly every witness talked about jason davis some talked about kevin l b a codefendant some talk about the laws and other codefendant but basically every cooperating witness talked about this defendant dave's been engaged in violence and using weapons and that for us that was the strongest reason we brought that one twenty four c because the nine twenty four c legislate history essentially says we want to stop criminals from carrying guns everywhere because it makes everything worse in short this is precisely the defendant who should never have a gun and that's why we think that that's one of the strongest pitch for why it should stand because it does fit we believe we can still fits in the law and it certainly fits  violence and then would still rely on google mail although again it's that's pretty johnson i can turn to the thirty or more questions on that i'll just turn briefly to the one too narrow and i guess as a personal matter there is no requirement that in order to participate as a racketeer you have to do things for the benefit of the game that's one way to satisfy that it's an easy way dissatisfied but is not the only way and sun savings says very clearly that all we really need to show is the nexus the record theory and defendant the rector and conduct what is the nexus here again the record was replete with very territory and as the court already pointed out he also on top of that manufactured crack cocaine for others it is a skill to skill he bragged about he sold drugs to other co defendants for them to resell because there was testimony about they would come to the housing projects to buy crack for decades at any hour and it's because of people like defendant laws moreover it's because he's protected by the gang while he sells drugs his activity to sell drugs lots of drugs regularly as  essentially his full time job there's no testimony had any other job but selling crack cocaine in the projects and multiple locations and we think that easily satisfies again that that nexus requirement is it is the reason he's allowed to sell drugs because he's a member of the enterprise i think you got fleshed out pretty well just want to add one point  on the nine twenty four c there's also a requirement that the weapon has to be used for carried in the furtherance of the crime of violence and i didn't mention this when i was discussing it before but remember this weapon was seized after a car accident there was nothing that show that he was doing any of the drug dealing it was seized after a chase by the police that ended in a car accident and then he fled on foot from the police that's that's correct but we don't know why he was speeding what he was doing in there we don't know what he was driving and was in an auto accident and then leave ran out of the car and how do we know that that's in furtherance of a rico conspiracy because of the evidence at trial that the gang members were encouraged to kang to carry guns while they were in the projects to further intimidate the people that live there but the we don't know at the time other than saying he was in possession of a weapon i guess that would make him a strictly liable we don't  wasn't doing a drug dealing he wasn't doing a robbery he wasn't doing anything he was driving he was eluding the police on a relatively high speed chase in the neighborhood that's true but was a part of the rico conspiracy i think it's a it's a tough one well if i agree the only person i want to anything up other than the i would like to point to courts direction to reading the case that i attach to the twenty eight j which said that conspiracy to commit a h act robbery was not a crime of violence because of the exact reasons that it didn't fit into the a section so that was a two thousand and sixteen unpublished opinion i thought it was very enlightening the other cases were always under the residual clause but i think the court has several ways to go here and in reversing it and i appreciate it thank you thank you you have anything ok thank you very much appreciate your arguments today the the case of united states versus davis is now