morning honors the name is robert spector and i represent the government on this appeal and respectfully asked for two minutes for rebuttal you are in the in the government's view this appeal really comes down to one  issue one issue that we think is governed by this court's prior decisions and that is whether the united states versus walker is really the decision that we think is most on point in that case in two thousand and six which necessarily is to use physical force that decision in two thousand and six and in this case the statute issue the first degree assault statute talks about serious physical injury and in our view that word means a lot in our view the first degree assault the subsection we're talking about the use of that word serious reason it means a lot is because the way it's defined under connecticut law is it means something capable of causing on in our view it could not have been committed without using violent force and in our view is based on a few things primarily it's based on the wording in the statute and when the statute says you have to intend to cause serious physical injury by use of a deadly weapon or dangerous instrument and you cause that injury you're guilty and under walker this court said that counts what judge paul was was troubled by is that in walker the court didn't talk about the word dangerous or the phrase dangerous instrument because dangerous instrument could count could you be a poison or a drug she felt the walker decision didn't address that our view is that very issue as have been addressed by three other circuits by castleman and then by this court in two thousand and sixteen in hill so while the court didn't address it in two thousand and six the court did address it in two thousand and sixteen by saying indirect force or indirect harm counts in other words yes you're right i think i could be wrong obviously your honour's know better than i do but i think it's being held back on the because of the demain ok so in the supreme court which is considering whether i think to invalidate the residual clause of the immigration a statute which does if which wouldn't impact the portion of hill that we're talking about the portion of hill that we're talking about really addresses this issue in the hill it had to do with some language in the h act statute about fear of injury but the bottom line is what hill says which to me is powerful is in this decision from two thousand and three the court didn't have this castleman decision from the supreme court and what castleman stands for is yes by by poisoning someone that's use of force and the analogy that is drawn is firing a gun when you  that that essentially helps the government and cast amen which is the language of this court repeated in hill had nothing to do with the definition of domestic violence it had to do with the definition of force and how in other words the bottom line question for this court  is can you hold that causing serious physical injury is equivalent to using violent force that's the bottom line our view is you've already held that in walker you've reaffirmed it in hill on two of those so the seventh and eighth circuit post dated johnson two i believe it was rice and waters the anderson decision out of the sixth circuit predated johnson two but significantly for us post david johnson one which is really the decision that we're that's the decision of issue here is what is violent force because johnson to really doesn't matter our position is the residual clause really has nothing to do with this case it's johnson one what is the violent force mean and in this anderson case it's literally the identical language a serious physical injury by use of a deadly weapon or dangerous instrument the sixth circuit did was open the door and i think this court said it in its decision here by granting the permission for a second twenty two fifty five we don't we don't quarrel with that johnson to open the door of the procedural door to allow the defendant to go in and make these claims is to kill that person absolutely it's an allergy and i know i'm out of time the analogy would be pushing that trigger that gentle push on the trigger you shoot somebody in the head it's the bullet that exerted the violent force if you gently put cyanide in somebody is drink if you intend to cause them serious physical injury under a connecticut law you've certainly exerted violent force on their body and that's that's really the pain when you just mind the the year of the conviction that's at issue here as to whether  right we do not have the transcript of the colloquy that attended that plea i don't believe we have the certified judgment and i don't know if we have the i know we had some transcript don't know the whole problem would go away if in the colloquy when the judge was ascertaining the factual basis and it was an assault conviction yes he did not did and did you did you point a gun at him and he says yes i did he did not that it i believe it was a nolo plea and he did not admit to it was an almost yes your honor so we don't we don't not have the argument vailable to us that he admitted the factual basis was that he shot somebody in the shoulder with fire but he didn't admit to that and so what we're left with is the literally the fact of the conviction we have the certified judgment it's in the appendix but it said he shot he shot somebody we don't have i don't believe we have the charging document you don't have the indictment either we have this sort of i copy the judgment and i believe we have the the judge back for the statute yes so i think the bottom line answer to question and i apologize for not having the specifics is we're left with this issue is fifty three a one man is probably written retrievable i think what we retrieved was a hand written document and again i'll trust defense counsel correct me if i'm wrong which simply said fifty three a dash a one without specifying the shooting the fact that it was a shooting how do you know it was if you it's it well it's in the i believe it's in the factual basis for the plea and then repeated in the don't think so under your case law your honor i certainly wish it were enough but i think under your case law your honor the defendant would have to explicitly admit or acknowledge that he did what the prosecutor i think it's the modified approach you're going with the you absolutely can your honor and if in this case we had in some cases you have a long form indictment which is typical the what we use in federal court which says on this date this person used a firearm to shoot victim x and it violated the statute i think we would be in a very different position we don't have that i think the document we have just says violated fifty three a dash or fifty for this reason well it's the state court that is in charge of the state prosecutors i can assure you we've talked to them about the ways of charging and perhaps could be better done in the audience it wasn't it's not sure they really thought what we were had to say was that he'd lose in cases as for a lot of the other comments by the government in terms of its view on things i have to say i think judge called addressed them all in in her decision it's a lengthy decision and i know she hit upon a kassam in which had been decided question goes to about the breadth of castleman kasman is a domestic violence provision it's very broad they take pains to give out three or four different reasons why it's different than johnson in the primary opinion in that they didn't say depend on the victim but it depends on what how you're going to define force in castleman they define force really really broad they go for the common law definition a definition that seems to be broader than what we have issue here in the arm criminal act one issue that i want to emphasize a little bit i don't know what's the daylight between castle means talking about sprinkling poison and the district courts example of what it was using poison well i think there's a couple of things about what's the deal of difference one is we're talking about a connecticut statute connecticut cases connecticut jury instructions and so we have to examine it in light of that context when we look at the connecticut statute obviously the word force is not in there so that's the first thing they'll tell you it's not an element at all when we look to the connecticut jury instructions again the term force is not in there again signaling that a jury doesn't have to find force in the end i think when we look at a few cases that we have cited in our briefs and then other statutes in connecticut about sexual assault robbery connecticut knows how to use the term force when it wants to use the term force there's another johnson appeal that's coming up before the court the case where we talk about robbery because robbery has the term force in it in the question there is going to be how much force is enough force and and things of that nature here when we look at the problem that's left a vacuum that really is the only one at issue here where i was called the elements clause it's requiring that there be an element when we look at the term element especially in light of mathis for example in justice kagan's decision there that word element means legal element when i get a plea agreement it's the thing at the bottom of the pages that basically my client has to have done in order to be guilty of the offense or if we go to trial is the things that the jury has to find in order to find the person guilty the government when we were arguing this case before judge paul more often used the term involves force you know first degree assault often involves force and i don't know that i can dispute that really involves is a much broader term that's the term that was in the residual clause that's now struck but it's obviously meant to be something different than involves if you have the term element in that remaining clause there at some point the rhetoric turned to force clause because then you were avoiding the term element but just judge paul in her decision picks up on this you know that the term element means element that it in its elements are not elements of force are not found in the connecticut statutes you know that i understand that they don't use the word force what they say is physical cause this is a serious physical injury by means of a deadly weapon or a dangerous  you either way this is the guy's getting her well if he gets murdered you got a murder statute but the issue that judge brought up that frankly is one that we i'm waiting to see in a case from the government  is the idea of you know the seller of heroin substitutes in something else makes a bad heroin in today's world we would know to call that fentanyl you know and gives that to a purchaser because maybe the purchaser still owes him money into that's going to rise a level first degree assault potentially where there's no real force that's used you know but i'm hesitant to go down the analogy route i will i will recognize it with the good with the other government argument here if you have under the modified you know the girl who wrote a statute that in most of its imaginable applications involves force shooting lee weapon dangers instrument yammer things like that and the district judge can say yeah but it could involve poison and poison might have been administered without force the government says the modified category or approach of i understand them right doesn't entitle a district judge to think up a possible non force use if the why do you tell us that she is entitle to think up of it i haven't what obscure it dampens i have many responses that first of all you brought up sort of the classic stuff we think of first degree assault mr specter did the same when he pulled the trigger on the gun in connecticut this is the subsection that we're talking about the first degree assault statute has dangerous weapon that's the pulling the trigger that's using a bat a knife all my cases back when i was in state court everyone was stabbing each other that was always what was going under that statute but it also talks about dangerous instrument and when we look to the statutory definition substance is one of them so invites us to go down that road quite frankly are most of the cases guns knives bax sure they are but the fact that the logic of the proposition with the intent or serious physical injury you do a gentle thing like putting the cyanide pill in the person's tray what's the logic of the proposition that that does not mean it is not an episode of use of force well first has to be violent force about the injury not how we get there i've got one of the thing i want to address to the judge's comments and then also i think you came up with the government as well we're talking you mentioned the modified category of approach right which is let's get the transcript let's figure out what really happened here if we had to change if you're on or suggested if we had the plea colloquy from state court way back in one thousand nine hundred whatever year it was that he got convicted we would know what he did and the government saying well looks like he probably shot somebody because that's what it says in the p s r i don't know that we're even allowed to do that anymore under mathes right under mathis we have to stick to this higher level categorical approach look at the elements of the offense and how that's defined and we only go to look at transcripts or indictments which in connecticut we agree with the government it's an odd process it's very inconsistent but when we go to we only go to do those to figure out well which subsection are we talking about if we have alternative elements  while it would be nice if we had a transcript in some ways can tell us more about the case and i guess i have one more hill to climb and i use the word hill wasn't intentional i don't think the court wants to peaces decision here on the idea that we are going to solve things by the categorical approach i would point out just one thing about hill as my time runs out is that's a hobbs act robbery case hobbs act robbery has the word force in it but a one is the one that we're operating under they did produce a judgment at some point when we were here originally on the motion for leave to file the successive petition that makes reference to a one in and that's the one that says you do it with a weapon or a dangerous instrument there's a lot of subsections so there's no requirement of violent injuries serious physical injury right there's no requirement of the use of violence that's a great point  court system they don't have to show that force was involved they don't have to show the violence was involved they have to show that the person had an intent to cause a serious bodily injury that they did cause a serious bodily injury and then in this case because it's a one it has to be either with the weapon or dangerous instrument or another way to look at it you know who with this is this fake or requires a showing of what the supreme court says for federal on you know i want to just go back to the answer to your question on where to find the documents because i blew that one on the opening it is j a one seventy six is the judgment of conviction it's a nine hundred ninety first degree assault conviction and it's that one seventy six of the joint appendix and then we did have the charging document which is at page two thirty four of the joint appendix in that charging document does not specify how the first square sought was committed it just cites the statue so our view is just to summarize here is when you look at the statute which really to us is the most powerful source of information what does the statute says the say the statute says you have to have the inten and that's important because there's plenty of statutes that have been analyzed which just talk about causing injury without saying intending here you have to have the specific intent to cause serious physical injury and when you buy a deadly weapon or dangerous instrument and when you look at the connecticut's definition of serious physical injury that is injury which is capable of causing death a bodily disfigurement failure of an organ i mean no matter how see i don't have an issue with judge hall hypotheticals at all but my issue is where she drew her conclusion you can create any hypothetical you want as long as you stick to the language of that of that statute so if you want to say that you use that you're dangerous instrument was a feather well let's say you view stab somebody in the eye with that with the intention of causing a brain injury you know that's violent force it really doesn't matter how you define the dangerous instrument because you have to have that specific intent to cause that serious physical injury and in the government's view that really he separates out this statute from many of the other sort of more generalized statutes that we've looked at causing physical injury touching this is not that i mean this is a statute that to be guilty of it you have to have that specific intent and if you have that intent then you absolutely have used violent force so your honor what the government asks here is that