next case says united states of america versus christians r prior convictions under florida law for aggravated battery with a deadly weapon and for domestic battery by strangulation qualify as a crime of violence because each involved the necessary element the use of force or threat of physical force  concede that fact so i don't think that's in question now it's only the fourth cause at this stage and turning to the forethought and with respect to its application to aggravated battery with a deadly weapon the statute the relevant statute under florida law defines the crimes being committed when the defendant in committing a simple battery hope uses a deadly weapon now there is no dispute and there can be no dispute under johnson and other cases that simple battery under florida law can be can committed by the mere touching and therefore does not involve application of the standard announced in johnson which was recognized and stokely still cling considered whether resistance sufficient to overcome the victim's resistance qualified under johnson as physical force capable of causing physical pain and injury is on page one seventy two one seventy one of the court's decision and it found that yes indeed it's the ultra cation that you have in terms of overcoming the victim's resistance necessarily involves force capable of causing physical pain or injury so it wasn't a modification of the johnson standard it was approach is the control under the marks a vote counting rule that that's the controlling opinion severance agree or no i don't necessarily agree it's a little bit unclear under florida law how these type of splits would be resolved actually at least at the intermediate level of  so there's two ways to approach this your are one is to assume at least at this point in time that all of the opinions in severance that is the concurring decisions by that stevenson judge mays and including the dissent by judge clark recognize as the majority decision the actual principled decision of the majority that is the one that was joined by six judges so you can look at it now and assume that that was in fact the majority opinion and recognized as such by all the opinions second if you want to drill down further and take something up on mark's approach as your job as your honor simply just reference you can also then you would take the most narrow version of the adopted version of the rule and you still get to a basically the same approach that i'm advocating porn in terms of how florida courts would approach this particular topic and if you go to  deadly weapon there had to be some physical application or physical impact which in judge stevenson's you according to his short decision was in fact there had to be a brandishing of the weapon that is there have to be an actual physical threat imposed upon the victim judge mays didn't go that far to mays did not make that determination if not suggested so he still allowed for something that was not used as a deadly weapon usage didn't need to be brandishing or threatening his disagreement with the majority opinion what i'll call the have a weapon to your hand it could still be a battery even though you don't have a weapon well what severance says is that you do indeed as the statute requires have to use the deadly weapon but what severance and all the most specifically the principle in concurring opinion but also judge stevens are man's opinion also recognized to use is a very expansive term as the supreme court recognized and smith bailey other decision use can cover everything including carrying including holding including bartering those are non threatening uses but they are indeed uses so that is what judge stevenson said is that essentially this is a jury question as to whether it was used the silicate the offense and that's what that stevenson was really drilling down at is that the use of the deadly weapon whatever the use may be is one overwhelming majority of states that hold that a touching why you're having a deadly weapon is a force a physical force because that would be contrary to the supreme court's admonition and johnson in other cases that that is not the appropriate approach in determining whether a state statute involves necessary element use the fourth one must look at the state law and in this case i know it's unlikely we have to accept severance so it's an intermediate decision it's really i'm not sure there's clear law guidance for us typically what we do in this arena we're if it's a diversity case where i know it's not your billy weight but if we were applying state law on a diversity case and we've got an opinion of the spirit court we give it due regard but ultimately our job is to predict what the pennsylvania supreme court of the new jersey supreme court would do you recommend we follow that approach here or we sort of locked in do accepting severance such as it is as the definitive statement of what this statute mean i think that the original question i think in this particular circumstance are not necessarily locked into an intermediate decision of a court of appeals in any state to determine what the actual law of the state would be but in those in which there is some question raised as to whether there's a dispute between intermediate courts for instance that's where that principle comes into play and again your honor as you just indicated the question is what would be the ruling of the state supreme court in this particular instance and the only indication we have in this case severance and i would like to stress that although severance was a decision of one court of appeals an intermediate system within florida it is applicable statewide that is the dearth prudence of florida that would have put you still recommend that we don't predict what the state supreme court would so i think that's a reasonable consideration but i think in this circumstance there's no reason to predict otherwise that that was a question that came into the court's mind and that was for two reasons one severance was a decision of a court of appeals it was there was actually a petition for review filed with  florida which was denied for the for what it's worth that suggested that might have just because they were as confused by severance as we are at could be but in terms of the described but in terms of before the supreme court decisions florida versus hearns is a great example that was the decision that hold that simple battery here i don't believe so at all and because in each of those circumstances including in this court's decision and ramos which again found that an aggravated assault statute which included with a deadly weapon constituted a crime of biology those were based on very particular aspects of state law and in pennsylvania for instance the aggravated assault provision states that the assault must be committed to cause bodily injury with a deadly weapon therefore suggesting as this court help that the use of the deadly weapon must actually be used in the assault and in other states massachusetts tennessee similarly interpret their statutes to and they have similar worded statutes but they require the use of the deadly weapon to actually be involved in a threat or use of the application of force that is what florida does not do and if this court were to hold otherwise it would be a simple rejection of the decision in severance which is while confusing in certain regards it is clear in that use extends be on that and can cover at least a just a mere holding no physical force whatsoever so if this court were to hold otherwise it would be rather unprecedented in rejecting the single authoritative decision statewide authority of the immediate court of florida and substitute its own judgment based on the generic definition which is not applicable in florida and has never been that live in florida but now that sounds persuasive i think generally but it seems to run headlong into what judge me wrote where she said that the weapon must be used in such a way as to assist in accomplishing the battery quite right your honor and that is the facilitator an aspect i was talking about so when you put into context that is an assist to assist the battery and to be used in assisting the battery doesn't mean that it needs to touch the bit but doesn't need that need to be used to threaten the  limited approach that the majority didn't take and judge may didn't take and that's what i was getting to judge hardman's decision in question regarding what is the scope of the holding in this case so if you take together judge may's opinion which is broader than judge stevenson and then the principle opinion at the very least what you see is that you can cover more than threaten more than brandishing and it can cover anything that facilitates the offense which can include holding which can be good use of a weapon to embolden or to arc or and that was the principal example brandishing threatening that sort of behavior and with respect i would disagree specifically on the emboldening case that is if you haul on a concealed weapon a deadly weapon brands and i'll give you a quick example if i may which is if you have a defendant who wants to go collect a debt from a to put his hand on the debtors shoulder not in any physical force way but just to convey the importance of the situation and maybe to convey some fear in terms of what ramifications but result of payment is not made that is assisting it is the use of the deadly weapon to assist in the battery and that would satisfy under both the principal opinion and judge under judge farmers decision and under judge may's decision and that is why in this circumstance under the majority approach wherever you take it from in this case use of physical force is not involved in the use of a of a victim causing or risking a causing or risking a great bodily injury by either applying pressure to the throat and neck of the victim or by blocking the big tim's airways and that alternative disjunctive praising the two ways of the actress reyes may be satisfied is indicative of the legislature's intent that it would cover not only applications not only dangerous cause in this circumstance that are caused by the use of application of physical force that is applying pressure but also situations in which somebody is breathing is impeded through not by physical force but by other means that is a locking and the examples under which that would occur are myriad but i can provide a couple in this circumstance and just very short if somebody was for instance being treated in a hospital in a closed off area air tight room for instance if they were suffering from immunodeficiency disorder or if they were prenatal care and a family member came up and turned off the airway the air ducts into that area restricting the use of oxygen that would not involve any use to physical force whatsoever but it would have actually a lock air from entering and causing or at least a risk of great bodily injury and that would satisfy the statute as it is currently constructed similarly if you had a comatose patient and a family member came in and put a sealed mask over top of the mouth nose blocking their airways without engaging in any physical force the touching that again would satisfy the statute because it would cause a great risk of ottilie heart producing force needs to be applied to the victim's body not at all you are not physical force in the sense that isn't meant by johnson and first of all in my first example there was no physical force at all no contact whatsoever in the second it framework in terms of assessing direct versus indirect injury but i make two points what chapman recognizes that inquiry that this distinction doesn't have anything to do with the definition of physical force in this context it must kill the physical force capable of causing pain or injury and  fact castleman itself recognize not only that the definition of johnson still applies in that particular context but in the context of indirect force force will only be that or being deemed that under castleman chatman johnson if it is quote force exerted by or through a concrete body that is the defendant must still be the one responsible for exerting the force that causes the pain causes the issue and the situation that i've been describing where somebody is deprived of air by blocking their airways that is not an application of force by the defendant either indirectly or directly rather the injury is caused by the driver of a not someone's airway so without doing something that i just explained two ways in which you could certainly do that but that is that in those someone that starts a physical force but that is not the injury causing substance and that is what castleman is so important to say which is that the indirect object must be the injury causing object itself and that is why the defendant acts through it so if there is a bullet for instance that is shot the defendant directs it and that is an injury causing substance it's indirect but it causes the injury similar to poison poison that is sprinkled it to use castleman example which happens example on to somebody that is the injury causing substance and the fact that is indirect but it is still capable of causing pain the mask itself does not cause physical pain or injury rather that is a reaction of the body to the lack of deprivation of oxygen and that is not the application of physical force by the tendon onto the victim either indirectly or directly and actually you have eleven circuit cases of putting the mask on is distinguished from shooting the bullet what they are yes yes it is in fact your honor because in fact the shooting of the  then we'd have to accept the argument why didn't hit him with a bullet i just pulled the trigger but gun not at all you know i didn't i didn't brag i just put a mask the forward the bullet is still in that circumstance the bullet is the instrument of the user that is that is the and if you put it over so much for the nose i can't breathe but my my point here is that through the mat the mask itself does not cause injury the bullet causes injury the mass does not cause injury the mask blocks the body from taking in oxygen it is a deprivation to exactly the opposite of the application of force it is the deprivation and taking away of a substance a life sustaining substance but a substance nonetheless from the body and that's what causes injury and in fact if you look at united states versus mayo this decision in this court this court held that the deprivation of crude but to a victim that is not does not involve the use of force in that circumstance it is withholding of sustenance item and that is the misfeasance nonfeasance distinction i don't believe so that it was an intentional action in that particular case intentionally withholding food intentionally causing injury and that was didn't involve the use of physical force because it was a deprivation of sustenance now that application of an injured causing substance the same point holds here are a both the aggravated battery with a deadly weapon and domestic violence by stamp strangulation is just a reminder as was in the brief that ultimately when we are using the categorical approach in trying to figure out what is criminalized under state statutes we do under gonzalez the dryness alvarez have to have to look at realistic probabilities and what is what evidence is there out there that these types of of frankly fanciful ideas about what could be prosecuted actually have been or that there's an indication that they would be and i think that's an important straight distinction particularly we're looking at this court's decision and mail in mayo that decision was driven by a decision by the pennsylvania courts and thomas which specifically held that the statute the criminal statute issue there could be violated in a way that this court found was ultimately nonviolent and there is no such decision frankly with regards to either aggravated battery or the  strangulation that any of the hypotheticals that mr sorenson has thrown out there would fall under the statutes at issue here and in fact that was a fact that was recognized with regards to the domestic violence by by the the eleven circuits dixie dixon decision when presented with other hypotheticals such as the removal of a sleep apnea mask saying it's not entirely clear that that would be criminal under  under the florida statute because you here and in view of the way that it's going to target or not been interpreted by the florida courts at this point you agree that if they can't be committed through the glass door or mean focusing on the strangulation i think that's probably the most likely where that argument would be made in defense the the statute itself requires you know action it talks about intentionally doing  pointed out that the case didn't even cite severus so what do you make of that and how are we to interpret severs would you address the same line of questioning going to rectitude mr swordsmen about d that may be asked to separate itself it is an intermediate court as the court has identified that the plurality opinion or the name of the first opinion that has the have the most judges or just  signed onto it did not get him majority i think you do take a look at what the most most judges signed onto in that case and what most judges sign onto in that case was the basic idea that you don't actually have to touch someone that there has to be some sort of impact but it doesn't necessarily need to be a touch what you do get from from both mays and farmer is that it has to be involved in the actual battery  itself and mr sorenson is taking issue with the use of the term facilitate however when you take the term as facilitators was used in a variety of the opinions there and you couple it with the fact that the florida supreme court has made a distinction supreme court has made a distinction between caring and use and then you also add in the actual language of the jury instructions which are what we're at issue in severance i think it paints a very clear picture that you know  ning or carrying or having secret in someone on your body is not enough use is facilitation through things like display or blandish ing or indeed if there was a touching involved that would constitute use though that is not require severance and pointing out specifically the definition of a deadly weapon and this is part of the instruction that was upheld in part of the instruction that was given in severance and the instruction that is still the instruction that is on the book is the standard florida jury instruction it says that a weapon is only a deadly weapon if it is used or threatened to be used in a way likely to produce death or great bodily harm giving instructions that were upheld in severance these are the instructions that still guide convictions under this statute in florida and so you know if you hold something that is potentially a deadly weapon a knife even as small as a pocket knife and have it in your pocket if you are not actually using or threatening to use it in such a way that it causes deadly deadly serious bodily injury or deadly harm then you have not used a deadly weapon and the way that that statute is written and how it is instructed by the federal courts maybe not in relation to this specific or the statute but another similar statutes and as you pointed out and windell ten and read reckon and braden you know they look at that the vault meant a deadly weapon elevates the situation and as i pointed out in the briefing when you're holding a deadly weapon it is not all that mean there were in this case it means use it in some way beyond caring in some way where it is not about border barbering that when that came up in the severance opinion and i think the reason that it's been discussed is looking at smith the supreme court's a case method which was interpreted in the statute to talk about using in relation to a drug trafficking crime and there are certainly a number of different drug trafficking crimes that you could use something in relation to one of that would be a commercial transaction of of turning over something in return for drugs so then bargaining would be appropriate so the notion that we would apply t batter someone while you're in the process of a drug deal but that would lead to a battery discussion with battery charges here it's perhaps it's a lack of imagination on my part but i find it hard to think of a way where in the commission of a battery someone is using a firearm or a knife in only a way that would be construed as barbaric it in some way if they're using it in the commission of the battery harboring doesn't seem to have a place there and there is no i'm sorry go ahead and there is there is certainly no evidence from any any cases on record saying that the aggravated battery statute has been violated or charges greed battery well i think again this is where the instruction of held by severance and which is still used in the florida courts today would be the position the united states would take in order for there to be an aggravated battery by the use of a deadly weapon whatever that weapon is has to be used or threatened to be used in a way that can cause serious physical injury that would probably be the best place to draw a line closer just holding your hand you're not aggravated because your whole you know i'm not really going to just get my holster or my belt and well i think at that point it would be display if it's open carry it would be display and i think that there's an important distinction between something that the victim is aware of and something of the victim is not aware of because that's going to alter how threatening the victim believes the situation to be well it's an open carry situation every wanted by community has opened carries and  in relation to a drug crime talks about how a deadly weapon in that case specifically a firearm creates just by its very nature a more threatening situation and i think i think that we did say whether it's being used as an instrument of commerce or as  or here even if you consider it simply an accessory or something that you would normally use for your own protection it nonetheless adds a nother degree to what the actions that you have taken even if normally without the gun you position here should be followed and it is not clear that at least as far as the noxious gas and the drowning that it would go to cover that sort of behavior as to the mask i think in light of stokely if you're placing a mask over someone whether they are comatose very weak or anything but that is enough and exerts enough force that there is going to be able to overcome overcome their resistance and i think you absolutely have a crime of violence their course i also argue as a would also argue as it did in the belief that under castleman even if you do say that the florida statute would cover things like locking someone in a water filled room or a room full of smoke or other noxious gas under castleman you have as the person who is locking that person in the room converted the smoke the water into an instrument that you were using to inflict serious bodily harm on your victim la was as i was sitting at table listening to that kind of wish that maybe i've gone into medical school i'm not sure whether you look at the lack of oxygen or the excessive amount of carbon dioxide is what actually you and i don't think we should be putting ourselves in a position where we make that distinction the fact is the lack of oxygen or poison or a bullet or or noxious gas or any of these things that we've been talking about would severely harm the individual it would be a result of intentional action and an application of force in some way whether it's flicking the lock or placing the mask over someone's head and if we get into the point where we're saying well if you can think of some way you can harm a person seriously or or kill them even even a further affirmatively murder you plan it out you you you will lead them into the room and you walk them in there you know we get to the point where tell it continue to follow things down the path that mr sorenson wants to take you know which i don't think that the current case law involving any of these statutes or in any of the cases that he cited or that i've cited support telling it as far as he wants to take it i don't think we need to go there i don't think you need to go there and i don't think you should go there honor this is not a situation in one month's deposit and simple as it was put it applications of the statute realistic possibility is what was required by the supreme court and here we have a realistic possibility based on case law by the intermediate court of appeals and decision by florida their court system which shows how the staff will be applied and it's directly finding on this record and in the other statutory context we have direct language in the statute that shows that it would be applied without the use of physical force and to address first the deadly weapon provision i think i heard what i conceive as a concession by the government or something close there to that the use of a deadly weapon may be proven under florida law under  application of the florida statute by simply carrying a weapon by simply holding a weapon which is how the principal opinion in severance stated it and if that is the perp or correct interpretation which i think is the case then use can cover situations in which there is no actual threat of violence and that is what was required contrary to the jury instructions though no i don't believe a response to the this is a serious point about the jury instruction reconstruction is actually on the definition of what a deadly weapon it is one that can be used and that it's phrase different but can be used in order to inflict physical injury or to threaten to defend or to threaten the victim if that particular aspect of the instruction was an affirmative requirement in every case then you would have no need for the actual statutory language because if it were with a deadly weapon then it would always be used to actually threaten the victim but that's not how the florida courts have interpreted it and that's not how the standard jerk your instruction is phrase it's framed as a definition of what is a deadly weapon one that is used generally  addressed in the severance that is use of a deadly weapon use is an expansive term that goes on touching the victim assaulting the victim threatening the victim as judge cohen's question pointed out it can be cute proven by carrying something that the silicates and that's the floor offense actually does not appear to require violent force that is blocking of airways does not require violent force rather they reason they come to their conclusion is because they say that causation a bodily injury if it's intentional necessarily requires bodily force but that is precisely the principle that this court rejected in the united states versus mayo and for the same reasons it should be protected in the florida law because florida law like pennsylvania law allows for causation of bodily injury without proof of physical force i see that my time is