next case that we have for during this morning is united states versus twenty it is docket twenty one thousand and eighty three and we will begin with mr rice when he is ready  did not permit the court to alter the statute in any way including in the indictment and also we would ask the court to find that the jury instructions that were provided to the jury were alleged victim in this particular case if you're a prison officer with some twenty five years of experience as b g only received one notice one note that allegedly contained true threat and therefore she could not have received multiple communications under the colorado stocking statute and therefore the no evidence was in fact sufficient first government did not do so and fact they said we are going to stick with the call revised actually they conceded the fact that they believe that the statute was in fact unconstitutional the court had concerns about the statute be unconstitutional because of u s v aloneness as related to the subject of intent i'm sorry i can hear the court can hear i'm sorry muted myself so what's the timing of of all that when when you brought this up below on the jurisdictional question when are we originally filed a motion to dismiss and we said that the statute was inappropriate under the a cia the people responded say no it's ok it's basically just it's attacking twelve b the matter went forward the court at motions hearings acknowledged that it was a jurisdiction bring a state statutory rape charge that basically expanded the penalties that wasn't available under the rape charge of the federal government had applied and they simply wanted to expand but it was really raised for the st time and spring person you have to go back and do every sentencing that was the only relief that louis asked for on the didn't ask for dismissal like we're asking for in this particular used the federal statute as we argue in this particular case for m  it was raised officially in our motion to dismiss signing the basically this daschle couldn't conform under the e c a and then we also in our reply early on confirmed that argument where we said fact raised and and preserved for appellate issues or are ok and even if our position is your honor that if the court says hey there's sufficient a subjective intent standard under the st member you have to be able to show that the defendant intended to cause the threat under colorado law the colorado supreme court and we cited to thirty one if you can receive retroactive constitutional rulings in your favor if you're on direct appeal which we are in this particular case and in the matter our deal which is actually consistent with people  be stanley which was what we based our proposed jury instructions upon is that you have to have a subjective standard as relates to the listener and we believe that that's not only consistent the colorado supreme court basically clarifies that and they specifically reject the hindman analysis that is basically just you have to show that the defendant intended to put fear into that person that you have and you have to listen to the context particularly this time to the roar of the crowd and the the car a supreme court which was the law here basic says you have to consider what was a subjective intent ok well right there with judge jackson putting in the requirement that it's not enough or reasonable person in the defendant's shoes would have thought that that was a threat but instead state law which the e c a somewhere prohibits now yes it does say that you know under a want us that you have to do that but if you look at colorado law that's not what this in there's a you have to look at the t the objective standard a lot of stuff and talk about that because it's prosecution under age seventy five and there's nothing about the victim and how the victim proceed and whether a particular victim has to feel colorado statute eight hundred and thirty six dollars o two is st what's a credible threat what the statute says credible threat means a threat would cause a reasonable person to be in there and so how can you complain that it had to be this hearing officer who herself was unfair when the element of the statute as defined by the colorado statute is that it's a reasonable person being in there we're you  now i'm sorry to interrupt you but i want to make sure i understand point are you saying that our d and the other cases somehow overrule the statutory language which the standard does cause a reasonable person to be unfair to those on her right that statutory language here i believe that the case law under the st amendment that has been terminated by the course of the car supreme court does in fact change that language just like a lot has changed the statutory language of the particular statute in question there and here yes we believe that it is the subjective intent of the listener and it doesn't matter because the people argued in their closing it doesn't matter what our what's s b g thought about the case the only thing she would say well i was i had a little concern she didn't say i was in fear she does it change my patterns if you look at for example stanley which was the case that preceded our d and that particular case judge rose when threatened had police protection he changed his he did he changed his and all of these supposed the threats that never made it to her she received one she said on the stand jill received one threat and heard both she could say under oath under cross examination was i was concerned that was it she d was in fear she didn't change anything about her lifestyle and that's why torah law has a look and you have to look at the reasonable he had to look at the totality of the circumstances and any of these threats that were going to be made of googling her finding her going off  killing police officers in chicago and atlanta completely unrealistic it wasn't going to happen as mr twitty was not even close to any sort of release date at that particular time as i haven't as other federal offense defined by statute so all state law provides the content of that law the resulting offense of a federal offense and it should be interpreted this one now that point is critical here for at least two reasons st of all it had jurisdiction over this case and their force twenties arguments about the improper assimilation of state law which were raised for the st time after trial and i'll get to that in a moment our untimely non reviewable and nd it means that the  was correct to fall of federal law and interpret and apply in the charge statute and under heineman that met requiring the jury to find subject of intent as a matter of federal constitutional law regardless of what the state court might have done if  offense whether or not the act that was charged in fact met the legal definition of an offense those were issues that go to whether the indictment stated a claim not to whether it was jurisdiction now to respond to the point about langford which is the only i think ten circuit  that opposing counsel mention that is really in and irrelevant cases we're talking about here that case dealt with jurisdiction under the i c c a over a not in india and committing a crime on indian land and there's actually a footnote not taste that says actually this isn't even about subject matter jurisdiction this is an issue of sovereigns or stiction and so there's a footnote that specifically addresses that so that case is not on point for circuits have addressed this exact issue the  th the th the rd the th including most recently the th in a published opinion and it helped that the erroneous assimilation of state law is not jurisdictional and as the th circuit pointed out in chief that conclusion necessarily follows but from the supreme court's opinion in lewis because in lewis the court held that was improper assimilation said that the charge should have been under the federal crime but didn't dismiss the case instead it ultimately held it harmless and property had been added would be covered but rather will statutes and therefore assimilation should not occur or there are other assimilation problems were the subject of those cases know that they were exactly the issue here brief that was a case about the federal assault statute and its state assault statute and the court in that case the same thing as in lewis which is this court said it was improperly assimilated should have been charged under the federal assault  statute but again it didn't dismiss the case it remained it for reset and seen under that federal statute so all of these point out that this is not a jurisdictional issue now i'd like to go to the point that judge carson started with which was whether this issue was raised it was not the pretrial motion to dismiss was essentially his st argument on appeal it was the argument that the colorado statute was unconstitutional because point that he makes in his reply brief where he says that if the government believes that colorado colorado law conflicts with federal law which of course we don't but if the government believe that the government should charge him under the federal statute but he didn't say that he couldn't be charged under the a cia and in fact his whole motion to dismiss was premised on the idea that the a cia and with it this colorado statute that he claimed was unconstitutional did apply so the st time he ever said there was improper assimilation lewis argument that he makes now was post trial and under bowline in rule twelve b three that is a claim that had to be made before trial or it's untimely and unreviewable unless there is good  cause he's made no argument that there was any good cause for failing to raise it earlier so so when i agree with you on that once laughed if you would agree with me on that then what's left is the constitutional question i think i'm happy to answer questions on the jury instruction and the sufficiency claim but to me those are pretty easy issues i would say and i could get to that if i have time but on the constitutional question be one way the court could get to where it got i think it's easier to decided under heineman as a constitutional matter because then we don't have to deal with anything about what the statute means because even if we assume that this colorado statute does not require subjective intent as mr twitty argues then we're in the exact same place as hyman because in hindman footnote to the court had a long footnote where it specifically addressed the question and help that that statute in that case did not require subjective intent and in fact it's precedent for clothes and the argument that it and so that's exactly what mr twitty is arguing here well what did the federal court do with that situation require the jury to find subjective intent as a constitutional matter and so that different court here was correct to take the same approach by doing so it wasn't changing colorado law it wasn't reading an element in the colorado law what it was doing is it was considering the federal ac a crime of colorado stalking on a federal territory and that's federal crime requires subjective intent as a matter of federal constitutional law in this or whether or not the state crime requires intent as a statutory matter the nd point on that that i would like to make is to the extent the court does want to get to the statutory interpretation which again i don't think it needs to unclear on that point because it actually spends a lot of time saying the statute does not require you know ordinarily when you're adopting some kind of constitutional saving construction it's the statute could be read one it could be read one of two ways we're going to interpret it in a constitutional manner heineman is a bit different in that it clearly says the statute itself does not require subjective intent and it never left goes on to say but if the jury finds subjective intent the conviction can be  help so so but i get your point there and i agree that that the ordinary way you would think of this is as is that story interpretation but the nd point i want to make on the statutory interpretation issue law would do the same thing that was done here the court doesn't need to get there because again this is a federal statute same says we are not bound by state court interpretations now the st part of saying that is cited in mr  brief does say that state provisions regarding an element are followed but i think that that if you look at what sane insane the st part of sane is sane you don't follow state procedural statutes but of course you follow state substantive statutes but then the nd part is saying but in interpret in those states substantive statutes the federal court is not bound by the state court interpretations and interprets them in it's in the st instance itself and then finally the point i'd like to make is that if we are looking at what colorado court would do here it would do the same thing the court did here under the scenario here where subjective intent is required and actually the best indication we have of this is what it says about what the st amendment requires is not binding on this court but the one thing that is important that that r d does is that it makes a constitutional determination that there's an objective standard of a certain sort and it then requires that objective standard for that conviction even though significantly the statute in that case has no objective standard at all and so it essentially did exactly what the court di it found a constitutional requirement and then it superimpose that requirement on the statue in order to support a conviction and so if we got way down the line to what a colorado court would do if faced with the constitutional principle here there's no question that a colorado court would do that r d didn't have to address the objective intent and specifically said that it was not addressing the subject of intent at all and of course even if it did as a st amendment principle it would not be behind it  unless the court has anything question of on those st two points i would like to address the merits of the assimilation issue and i recognize i may be walking into a hornet's nest here because i agree it's tougher issue and i think the better way for this court to resolve it is under bowline in rule twelve b three but on the merits of the assimilation issue i'd like to focus on the nd prong of the lewis analysis and that's that even if twenty could have been charged under either of these two federal statutes neither statute indicates an intent to preclude the assimilation of this colorado statute and i think it is that the test is that  to preclude the assimilation of the state statute one of the things that the court can look to in answering that question is a kind of preemption type analysis which is whether there is a detailed comprehensive statute that suggests an intent to cover all possible forms of stock in another part and this is the part that i really want to focus on is that lewis says a factor that weighs in favor of assimilation is where the statutes target different forms of behavior and that's what we have here even if the statute could have or even if the crime could have been charged under the federal stalking statute that statute which appears in a chapter of the u s code focused on domestic violence broadly covers any form of conduct that placed a person in reasonable fear the colorado statute on the other hand targets a narrower and more specific type of conduct which is repeated communications that something that the lewis courts that weighed in favor of assimilation and i think importantly here there is a subsection of tw that covers certain threatening communications but that section doesn't apply here because twitty didn't use facilities of interstate commerce so i think this is the exact kind of scenario where there's a gap for are more precise about the kind of stomping but the states that use these be a lesser included standard of the good rule and so that they get really advances your argument that the federal doesn't cover it  covers it more broadly but it does yes and that was the case with the statutes in lewis as well where there was a federal murder statute that covered all forms of murder and then the statute in that case was a child abuse resulting in death and the court found that this factor the factor the fact that the state statute was talking a more specific type of conduct weight in favor of assimilation now there were other features of the murder statute not present here that ultimately made assimilation improper but we don't have those here because neither of these statutes of the kind of detail comprehensive statute that suggests an intent to cover all possible forms of stalking and so i was really you're hearing it you're saying that lewis says that the the fact that the the state statute is a more specific target even though it would be included really broader language of a federal s prevent preemption and therefore assimilations ok i'm not saying it's enough i'm saying it's a strong factor in favor of assimilation and yeah yeah yeah yeah and so i'm i'm out of time here so unless the court has any further questions become it requests that the defendants conviction be affirmed thank you rush and will give you a minute since counsel and over as well thank you very much your honor we would note that lewis specifically rejected the precise elements test and if you look at lewis williams as well as the rocha case in those particular cases they all tried to simulate a state statute and the court found that there was a statute in the federal law books that was a political and that for whatever reason the state was either trying to lower their burden  or increase the punishment and the court found that that was completely unacceptable and in this particular case our position is is that's really what they were trying to do and by doing so trying to mesh this rd basically creating a hybrid of state federal and this hybrid of a mixed law you're creating what lewis said we specifically want to reject and avoid you cannot do that and even if the  to change the instructions to a dot in law on us we still think that the car law applies and colorado says you have to have the subjective reaction as a relates to the alleged victim of the alleged crime of the alleged speech or are so therefore we believe that one there is no jurisdiction but the court finds his jurisdiction that in this particular case there's structural air throughout as relates to the law that was given to the jury and therefore it's not just missile at least remained for retrial thank you but thank you both for your arguments the case is submitted