morning the morning they please the court my name is peter to mail i represent mr thomas who is the in this case your honour's this is a case in which mr thomas brought a spent shell to the new york city police department and which was investigating a shooting and ended up being arrested and after two trials sentenced to fifty one months as a felon in possession of ammunition and now in the course appeal the government has had ten years to that of say fifteen years that sentence in terms of the a c c a the court should keep in mind that this is a case in which the government argued that mr thomas was in fact a shooter that he had shot an individual several days earlier but that was never charged the fact new york city police department never charged him with that shooting although they initially arrested him they turned him over to the federal government to be prosecuted and the judge the district court judge found they had not even shown that my upon hundreds of evidence and rejected their attempt to use the course reference to increase the s and that's for good reason there was no he never when he was interviewed by the police have admitted being the shooter the police officers knew him who knew him for years before the savannah did not identify him as the shooter and the victim in the victim's girlfriend did not identify it as the shooter but the government now seeks to apply the a c c a to this case and while that's a very important issue and obviously very topical right now there are some other issues that we raised direct appeal that i'd like to spend some time and addressing first year on a is the argument that the government failed to prove that mister thomas even violated the felon in possession of ammunition the only evidence was a spent shell which we argue as a matter of law is not ammunition of the time when it wasn't spent we spent significant circumstantial evidence he's read that the way the shooter was dressed he is seen on the video at what the jury could have included holding the gun  gun and has a somewhat strange story about god why isn't that all evidence that supports the theory that he was the shooter and that he possessed the shells in the gun at the time of the shooting that's what the jury was asked to conclude by the government that's what they asked him to conclude but the government also objected to the jury instructions requested by the defense and they allowed the judge  let's get back to those instructions what the government submitted as an instruction and what the judge originally wanted since they were drafted simply defined ammunition as defined in the statute it was the defense that inserted the spent shell into the charge the government objected to that and the government objected to the language and language was taken out and munition as we generally understand the term which seems to me to be very bad language because congress has defined what ammunition means it's not just what some juror might think is the standard meaning of ammunition but congress never defined ammunition to include a spent sh is not in the judge's draft it's not in the government's grant it's what the defense wanted in was a sentence that referred to the spent shell as and they got it in terms of the as i recall your honor in terms of the a there's a question of knowledge and the defense want to say he has to know that a spent the bench ehlers ammunition in the ordinary sense of the word and i think came out what the defense wanted was in the ordinary sense of the that the case bars us from raising the issue on appeal of fed a matter of law the the evidence to support the conviction your honor well it does talk about critical determination that the defendant through counsel acted  an argument in a summation based upon the instructions to judge it was giving over their objection your honor i just would like to spend also a couple minutes on an issue that's really important and could also get lost in your determination and that is the special conditions to supervised release we appealed the judge's inclusion of three conditions the government was wrong when they said we directed to all of them there were three of them that we appealed one one and they dealt with issues of sexual offenses and there's no record in this case of anything come current current that had anything to do with those sexual offenses how will the u s we'll see how old was the time he served that sentence he was on probation for five years of high parole federal system in the state system for five years afterward six completed that successfully there's no post history of any sexual crimes at all in his record and they reach back and they had this condition and then they had some kind of crazy can do to second condition about registration when sora wasn't even in effect for in one thousand nine hundred eighty three and would ap and those conditions your honor i was totally superfluous the government concedes that that these are conditions that the probation department can impose you know in the present time under their existing under the standard conditions  need for additional conditions they can go back to the judge and at that point ask the judge and they can have he can have a common occur at reckitt and get to process but to reach back thirty five years ago and take a conviction and use that to put these kind of very significant conditions at special conditions we think it is inappropriate and that that should not stand i we also raised it just touched briefly on a dismissal of the of the foreman during deliberations which was also we believe violation of mr thomas's right to have his case heard by the jury he chose the government witness heard it and the government witnesses that in the further from the juror then his fellow jurors are now there's no testimony of it your honor if there was a statement of the prosecutor of the attorney the judge didn't even question the person who supposedly heard it and when it was what was said and there was no indication anybody anybody else heard or that it would affect me how could somebody sit through a lengthy trial and not form pullum in every determinations as to who's telling the truth and who's not telling you know did you hear anybody say anything about a witness being a liar that i think some so i think everybody getting disqualified at that point and maybe that should have happened but if that was so important to the government to trudge it but don't forget the jury when they question the juror did not say because saying that he said he recall thinking it of a different of a different officer but not saying it out loud so we have the very strange thing where one police where one witness tells another wit oh i think i have this juror said something the prosecutor makes a statement the church immediately posed a juror out of deliberations to question him and then the jury gives ambiguous answers and the judge makes a ruling that he's disqualified not because other people may have heard him because the remedy of removing him doesn't solve that problem because those people still heard him but he's removed because he formed a policeman or a decision as to the credibility of the witness i think is incredible  might say no no that person was corroborated by all this other evidence i think that's you know that's an awfully tough stand it and remember the remedy was to remove the juror not to instruct the other jurors that they should not consider that so good morning good afternoon good morning still may please the court kevin trial for the united states i would say we have a cross appeal that i'd like to spend some time on but if it's ok with the court like to begin with the issues that mr tomato raised and what is are going to you like great thank to begin with the challenge he raises in terms of sufficiency is not a factual challenge so i think your honor judge lynch you were asking about the the video recordings and so unrealistic shakeups i'm sorry that's not the basis of his deficient sufficiency challenge it's purely legal and it's based on an argument based on a jury instruction that he himself invited i think your honour's questions are right on point when you note that the government wanted none of the sentence it was not part of the government's theory the government didn't believe it was appropriate and it was not their request and not just the jury instruction right now the jury instruction is that he has to know that what he had whatever it is that the jury just emphasizing there that the that exact point the styles it has a sufficiency challenge yes it's not a typical sufficiency challenge because it's not a challenge to the evidence that the government a deuce the trial that's right it's a challenge to the jury instructions which he believes because the defendant characterized it's not only the jury instructions right because the jury instruction does not actually say a spent shell is ammunition it has this sort of funny feedback loop because the defense version we got from katie that says he has to know that this event has been shelved was in the nation that i suppose implicitly takes the position that a spent shell could be in the nation so i'm just trying to figure out is the issue of whether if he could have been convicted because the jury believed that his then shell was ammunition is that an issue that is properly before us first of all in other words can can mr de mayo is there some reason as to may have planted argue that the jury wasn't fact presented with a theory that a spent shell could be ammunition and that's just legally wrong that the jury based their determination on that that should be thrown out i think there is your honor and i so to to follow up on a point the judge paul asked about spiro certainly discusses waiver true waiver and that's obviously i think that's the government's main point here there are a slew of cases in the circuit that are more specific that apply that principle to the invited error of a jury instruction and as you know one for example would be g o of an alley for sixty four f thirty three forty six a three fifty one where a defendant is seeking a jury instruction because i think it's fair to say the defense viewed this as beneficial to them after all there was a hung jury in the first trial in some where the government in fact pursued this theory was a probably a bad theory and it didn't work out that seemed beneficial i think it's fair to say from the record to the defendant beneficial to the defendant to tell the jury you can convict on the basis of has been failed because that is in the  well here's the reach of the benefit of the defense to argue this is what the government's really saying and it's wrong but the point is it's wrong that's what the defense wants to argue through enough both parties and there's a footnote in our factual recitation at the first trial both parties agreed that a spent shell was ammunition i don't think that's a purpose conclusion after all it says doesn't use the word shell casing but he uses another term that means the empty shell cartridge case and thank you i don't think on this record there's anything to decide the issue of whether those two are the same presumably the government could put on i understand that spent shells can often be reloaded perhaps the government could call an expert that would suggest in a particular case request had been granted that's fair but the statute also talks about primer and that is also not going to be very helpful to you in a foxhole so i think that the statute certainly sweeps broader than a complete bullet but that issue just wasn't here it wasn't the government's theory the government didn't in almost the very last thing that the government said to the jury in the bubbles and that is ladies and gentlemen even if you buy and portion of the defendants he is still guilty of the crime charged because he tells you he got this point there are a few funky things about the trial there's no question about that i think both with respect to the jury instructions and the jury summations this court reviews both of those things in their totality and so even when you're looking at the jury instruction and the sufficient sufficiency challenge that arises from it the court isn't to isn't looking at the sentence both clauses one clause it's reading the instructions as a whole and the jury i think it's fair to say from the the entirety of instructions was given the proper definition the theory of the government was not ninety nine point nine percent i take your point about the sentence the stray sentence in the rebuttal but it was he was the shooter that was the thrust of the government's case that was i mean i think it's fair to say there's no there's no reason to hide from the fact that in the first trial that was the government's theory this trial yet this i mean in some sense the government can't escape that because we offered it in the first trial the spent shell could be ammunition but you're saying we don't need to reach that in this case because it wasn't the government's theory and it wasn't something i think it's it's difficult to address the question of spent shell because we don't have a record a record to discuss that on in the judge korman trial both parties agreed so it was never disputed in the second trial it wasn't the government's theory so it wasn't it wasn't sort of hashed out i mean if we're talking hypotheticals i could imagine a situation where you had someone who was collecting spent shells from a range and refilling them that's that someone who where the spent shell might well constitute us the hypotheticals but in terms of this trial is the government's position that we do not need to decide that issue yes yes that's because of the defense request for the jury instruction and because your position is the government essentially did not this this court's cases suggest that where it's evident from the record that's going to be sufficient and i would submit to your honor and we did from the record yes but here what we have is a sex offense it was from a long time ago there's no question about that the government doesn't  the question is if you if the district judge is assessing with respect to a defendant presumably is weighing in the balance imprisonment and supervised release we have a defendant here who is by all accounts extraordinarily dangerous he's committing crimes well into his fifty's or defying all the literature on recidivism and so on he's got a lengthy history and the court is assessing how well i supervise this individual he imposes two conditions that relate to the one thousand nine hundred three conviction the first one is simply a restatement of the law if he has to register he must register now mr tomato suggests he has no obligation to register heat i don't believe that's true it's certainly not in the record the condition also requires registration under state registries so if for example mr thomas were to move to another state that required him to register this condition would apply it's i don't think so applies and i don't think that new york law would require him to register however states including california alabama and others have registries that date back to the forty's fifty's and sixty's and require lifetime registration under certain conditions so all this condition is saying is if you live in a jurisdiction that requires you to register register and i think that's fair for the district judge to put this defendant on notice of that requirement the second one and that went to me doesn't appear to be particularly onerous because it just mirrors what mirrors existing law the second one is somewhat more onerous but seems to me perfectly related to the district court's need to understand both what supervision would entail and what mr thomas's needs are under supervision he didn't impose unlike the state system i think p s r paragraph seventy three notes that in connection with the state conviction he had sex offense treatment this is a sex offense evaluation and i i may have misheard mr to mail but i thought i heard him concede that if probation and the and that evaluate if an any concerns that might raise a running say what i agree with the first part but not with the second i agree with you that there had not been an evaluation and that to my mind would be a reason to have one the district court is need is under the district yes i mean that plus the fact that the state system at a better more more recent point in time had also seen fit to impose sex offender treatment so i think those facts together all the district court is interested in knowing here is issue surely now defense counsel will be properly aware from this appeal of this is a very live issue and it will be dealt with and maybe we'll have to be aware that the judge imposes it again yes at some future point not i don't think so so maybe you know why did they wait two days after the testimony while they're in deliberations to say judge i could separate first what's in the record from my understanding that's that's extra record i'll start with the first part of then you can tell me if you want to go the second part the first part is it's clear from the record that the government came in that morning said to defense counsel here's what we've become aware of from an agent this happened during his testimony and so there the government is acknowledging to defense counsel that this had happened i think it was two days prior they give them an explanation and had defense counsel thought that that was an issue to raise they could have done it here federal defenders were representing these are repeat players that everyone's known to each other and the government made whatever representations it made and defense council decided not defense counsel pursued other arguments with respect to this juror for sure but not that one so that was the next day you know that was the government comes in that morning and says here's what the agent has told us i think this was two days after his testimony yeah yeah so that's what's in the record is the government told the defen that it happened two days prior the defense didn't inquire about that issue didn't ask the judge to inquire about it so what we don't know is whether the government only the prosecutors only found out from the agent that morning that was only mentioned them then or whether it was mentioned to them two days before and they then spent time thinking about what to do or just were neglectful and then realize they should raise it we don't the record doesn't disclose what at the in those days believe your honor that the record reflects the government saying to the court that they had learned up at the smoke that morning and that's my understanding as well so that's that's the record portion of it i'm happy to discuss sort of my understanding beyond that if it's helpful but but that's what i understand from that's in actually in the transcript felony so i think there are two issues here i think what your honour's referring to is the government's change in position yes so at a certain point in time the government had a phone conversation with the queen's da the queen's da based on i'm not sure what made a representation about what the conviction was for also you ascertained that it under the primitive computer situation at the time it would be recorded as whether it was violent or whether it was statutory rape which may not be there to there are two issues i agree with your honor as to the second question i don't think the government has argued on appeal that if it were subsection two if that were in fact the crime of conviction that that's a violent felony the government is not taking that position i think here because the certificate of disposition says subsection one there's at least reason to question where the queen's assistant district attorney got that information from about it being statutory rape i my assumption is that it was sort of oh you know this is this crime of first degree sexual abuse that's typically statutory rape the ones who ask yes but and again that was not that was not the best procedure on the part of the government the government should have had the certificate of disposition in its hand at that moment they made a representation to the court about what the queen's da da said that turned out to be untrue the certificate says subsection one that's presumptively valid it's not it's not always valid and green makes that clear the issue here is that the district court assumed it was valid without addressing the question of its validity so is the government's position i think the government's is by saying i assume the sexual abuse counts so we're not nothing further is that about that but the robberies don't count and we now know that that is incorrect as a matter of law or at least that's the current state of second circuit lot pending a rehearing in bank petition that's out there as soon meaning not based on any inside information about what's happening because i'm the senior judge  have information about what's happening on the rehearing petition but if it turns out that that bail that the circuit law remains that the robberies are a violent crime don't we need to return it to the district court because the district courts reasoning was incorrect and permitted an inquiry with respect to what the sexual abuse really is because as you something that perhaps the defense could rely on itself and maybe they could go back and get that idea and we could have them in the court and we'll figure out whether this was a violent crime or was not correct although presumably would all have to be relying on shepherd approved was required to rely only on shepherd who documents of which there wouldn't be any to undermine the issue of what it really was and whether this shepherd approved document is as a matter of fact in accurate i read green to suggest that certificates prior to a person a certain point in time the presumption sort of fades or is certainly lessened and that the government needs to support it and i think greene talks about a plea transcript or other similar document to support that so i think the government's position on remand would be we understand that the system at the time for may have defaulted here is there a shepherd approved document that supports that he that in fact shows he was convicted of subsection one but yes i think in answer to your that would be that but then isn't then i think i have to ask you is there one because if there is not and you're saying it would be who the government have won then i don't see what's the point of if you're saying you think you have won and therefore there is a point to read well by all means bring it in that doesn't commit us to a view that you're right about what you represented all it just means that will be tried in the district court in full disclosure i personally have made efforts to locate a document my understanding is that the queens district attorney's office no longer has them that i don't think and the inquiry because i think there may be a court file there may be that we may be able to reach out to the court reporter in some circumstances we've done that but that's all speculative isn't it i mean i was operating on the assumption that the presumption gets you to a fact finder and then the defense would have its shot at whether that's really evidence or can be relied on with your telling me that the government's position in fact is that the government has to have something more than the certificate in this position that as of now there isn't anything and that nobody did this nobody raised this issue before the sentencing judge and in fact the government sort of represented that it probably wasn't a violent crime it seems to me would be reminding on pure speculation that maybe the government can come up with something that would salvage what you're now telling me the present state of the record is inadequate to support that finding but i think it's inadequate because the district court didn't address the issue i mean well i hear that but they didn't address the issue because of the the robbery stuff but as far as what was known at the time you're telling me that all the government had then all the government has now is the certificate of this decision that you were candidly say is not sufficient in itself to carry the day but we should remain anyway in against the secular possibility that you'll come up with something well let me let me say this your honor and i am trying to be candid about this because it certainly would have been the better practice to have resolved this issue internally before in spite of the fact that it wasn't raised before the district court so i certainly recognize that green hasn't been sort of argued about in our briefing here so you know greene talks about a witness who testified in that case about the system at the time i've really re green in an attempt to discern what what the government's what possibilities the government has on remand we have not thought about that so i wouldn't say that that we haven't disputed that here so i would say that that's teed up exactly but i'm not i'm not sure that i read green to say that in the absence of i mean green itself concludes that the system existed so i don't think that the burden shifts to the defendant to disprove this thing i mean i do think that the government needs to support it in some way but that's what prism but i think green goes through an analysis of of of what was happening at the time and concludes you know so so green sort of puts this presumption in place now i think maybe there are i'm not think i'm certain that there are many avenues the government still still can pursue here but i take your honour's point that those haven't been pursued and you know what we have though is a decision on the legal question that is plainly wrong in the government's view and that's what brings us before the circuit and i ask you can think more in that conversation with the queen and the assistant because i'm confused i think it's that the queen's d said it was statutory rape but at the time the statute i think defined challenged and i think what that ultimately goes to is the likely unreliability of the a d a s comment and that it was a sort of informal call that probably was best not relied upon in the course of a filing to be honest you know it's not inconceivable that subsection two was the was the was the subsection of conviction because it's of the the woman was the girl was apparently mentally disabled so it's not inconceivable those two things are not but it could be forcible compulsion because least from the p s absolutely describes force absolutely incident that says that's not a chef correct so i think you have the evidence that exists suggest subsection one and the district court erred in concluding and in assume record erred in the sume in that was correct we should have had an inquiry about that down but then the district court assuming it or not this report aired with the benefit of hindsight and saying i don't need to do yes because of the robberies and the robbery down the cou  any robbery a violent crime for the a c c and you have to take in mind here that the count we're talking about for mister thomas is not a robbery he was convicted threat would not be violent because it didn't convey any sort of put a the victim to put a victim in any risk of harm as a victim doesn't know about this thick thick skin situation which we had there was a case that was brought up in the in the core polow where a individuals was stopped on the way into a robbery and they had with them weapons and if they had gone in and shown the weapons they would have been you except the case was in the second degree not in the third degree the robbery in which the attempted robbery was it was in the second degree where there is a weapon and i believe the definition is as a weapon involved this fails then i'm not sure they're making this argument because that applies to robbery second as well as for robbery third wouldn't be categorical because maybe there was a gun in the particular case but that's not something we can consider anyway right but of attempt attempted robbery in a third degree one of the issues they're raising because robbery in the third degree can be proven by threatening language and but does not cover attempt to tread i know it's a cover here what you're saying but then it sounds like what you're saying is this case is controlled by pro or it's just that maybe there's a good argument that thrower is wrong in this respect which will be decided by the court and bang right in other words i think you know it's to throw a case this argument would be irrelevant in a row or i it's not categorical and you miss the point of an attempted read that argument either wins or loses but it is it still doesn't distinguish this case rower because it doesn't distinguish third degree and second degree well which was that this issue of the on the sexual abuse was not raised in the court below it was in fact raised in the court below in the federal defender's objections to the to the court on minimum you know i'd like to see you affirm the judge on the on the a c c if shoes but if you don't then i think we have to go back and have all these issues handled i would ask not concedes that effectively in the reply brief that we could not determine for ourselves on this record that the sexual abuse is a crime of violence that the most they're actually asking for is that kind