good morning to please the court and pike thompson on behalf of requirements laid hers i'd like to first start addressing sort of where the last argument left off in terms of the government's argument in  the robinson case that they've also made in mr slade's case about essentially i think what it boils down to is the government is arguing that the prosecutor or the washington state prosecutor in any individual case essential gets to define the elements of the crime  that particular defendant and that's simply not the case prosecutors don't define elements of crimes legislators do and the washington supreme court has a very very clearly said that washington assault in the second degree is a single offense that can be accomplished by a number of means and today in argument and also in briefing the government has pointed this court to a number of cases and arguing essentially that this court has always taken the approach of focusing on a particular subsection one that's the way that a statute is organized but all of the cases to which the government sites are distinguishable from the statute the court is presented with in this case because in those cases this subsections of the statute  different crimes and in my reply brief at pages that leave it was twelve and thirteen i just english each of the cases upon which the government relies on provide citations to state court holdings demonstrating that this statutes of issue there in fact included multiple crimes which then render the the statute divisible and make looking at a single subsection appropriate specifically with regard to the two cases that were addressed here in court willis was an oregon statute where the oregon supreme court had clearly held that the subsections of the statute and i believe it was one a and one b that were at issue in that case define distinct crimes and so we don't dispute that under that circumstance it is appropriate to look at a particular subsection but that's not the way that the salt in the second degree is structured so looking at your reply brief and then referencing what the government reference which is the second guy goes case yes would you address that because some of the cases cited were of course by the government and others were before this whole the camp and the various complete change in how we analyze things but this particular one is from two thousand and fifteen so i'd appreciate your comments on that certainly honor that was also that case dealt with an arizona statute where the arizona supreme court had also held that  subsections that were issued to find distinct crimes i think that under the analysis this court is required to follow those would be distinct crimes to which the that would be divisible the statute that was an issue in that case would be divisible into it simply not it has a presidential value in this case because we're not dealing with a statute that involves distinct crime this certainly this a little bit different from the last case bases it c e where is lawrence dealt with subsection one day in this case we have the same concession as the prior case by the government that the statute on the whole is overbroad and there is at least agreement between us and the government that subsection one is overbroad so i don't think that that materially changes their changes the an thank you only thing that i would note also and counsel for mr robinson addressed if the steps that mathis gives us and so i won't go through and repeat those again but i do think that it's telling that state smith the washington supreme court decision that we have provided to the court the analysis in that case really mirrors the analysis in the iowa supreme court cases that the supreme court in mathis said is the type of case that will make these types of decisions easy and essentially what the iowa supreme court said is that because the statute contained all turner said that the alternative the statute contained alternative methods of committing want to fence and that so that the jury may not agree as to the method of commission and that's the same analysis that we have in smith with regard to washington is that an assault in the second degree we have the washington supreme court unequivocal saying that washington assault in the second degree defines a single crime and that the subsections are merely means by which that crime may be committed and the government has argued that that statute isn't framed in terms of sort of assaults as kind of a and overarching heading which may be committed by a number of means but that's precisely how the jury instructions that deal with alternative means lay out the crime we cited to the court in her reply brief washington pattern jury instruction it was thirty five point six teen which deals with the alternative means of subsection one either the intent to commit a felony and one see the assault with a deadly weapon and the way that that instruction is laid out essentially is that the defendant assaulted a named person as one in the instruction and then it lists a as and i may be flipping that too but it lists a and b as with intent to commit a felony or with a deadly weapon and i think that's precisely how these crimes are instructed to the juries i would also note that even beyond just permitting juries to disagree as to the means and sort of by either just listing the alternatives offset by or the instruction actually invites in a sentence the jurors to consider the possibility that they could split as to means and still be unanimous as to guilt of the crime charge which is assault in the second degree and the instruction explicitly tells them that they don't have to be unanimous as to which means they believe the defendant by which means the defendant committed the crime so long as they agree on guilt of the crime charge which is assault in the second degree unanim through as a way for robinson to have committed so i think as a matter of practice in washington when the prosecutor has a lek did certain means of committing the offense in the charging document jurors are instructed solely based upon the means that were included in the charging document the government has argued that this essentially makes the means elements i think that it's within that mean lapses they they get thrown out basically in this instruction i mean i know you've argued that you look to this state supreme court law and to the instruction but as a practical matter you wouldn't go in and say to convict the defendant of the crime of a song you have to say that and i think that and this is something that we had as to also in reply that the fact that that is the way or that's the practice in washington state is not reflective of the prosecutor's having in any sense the power to change the means of a crime it's to intentionally assaults on the other and thereby recklessly inflicts where they could find anyone from a through g making it something they've got to find  think so your honor again i don't think that the the facts of a particular case can alter the elements of a statute as a whole and i think that what washington case law says about the reason that it's narrowed down is that it's a no to space concern  as to the means of the crime so for the same reasons that if i was charged of committing a robbery in one location the government can't then later at trial allege that prevent facts to prove an entirely different robbery a mile away and that's not because location is an element of the crime it simply a matter of notice well the worry that i have is that there are and i try to go here with counsel there are in fact in this particular statute a talks about those old he talks about the salt if talks about an assault anyone talk about an assault but the way you do the assault are different yeah i have to prove that difference in order to make one guilty i don't i mean i think that they prosecutor has to prove unanimously one or multiple  prove washington says he doesn't have to prove unanimously any one the jury can come out with some salt under g but if we have charging document the charge is only a and therefore limiting the elements of the government must prove as that make it more than a means i don't believe so because i think that it deals with a different issue than with what the elements of the single crime of assault in the second degree are and so i think washington courts rightfully are concerned with defendants having notice of the general facts that they need to defend against during a trial and while i understand that it's all the same crime and i understood your argument about that fact that's why i went after the government just a little bit about that seems to me that they're all the same crime they're not different crimes but my worry about that even though washington what it has is that when one is making his case to the jury if he has to prove tensional assault recklessly inflicted in order to prove that and that makes a more than just means i think that the challenge with that analysis is that it again gets us back to kind of what the government is asking the court to do which is i think in my view putting the cart before the horse and just not conduct the government if we went with the government's argument i find it difficult to understand why they stipulate that this is not a categorical crime because if we go with way that well  understand what they are saying they have to but what they're really saying they say on one hand the general statute of one is not categorical but then they say i am to focus on one or one c or one e and that that is how i have to do it well it seems to me that doesn't lead to the same result as generally saying they're not categorical and that's why i'm pressing you a little bit seems to me when you say they have to prove certain things and the things they have to prove are in a way and not it be not in c that that makes it more than means well i think that you know that we would dispute that the that there may be differences between that way that washington state and sort of deals means that sense but  section and statute under which the man was convicted i think that they meant the statute of conviction which is the crime as it's defined by the state and also so for example if you look down that big list you could say to the jury to convict this person of the crime of assault uku would show beyond a reasonable doubt either one that there was use of a deadly weapon or that the assault was committed with intent to commit a felony and either of those would suffice but you would need unanimity as to which or whatever correct exactly and that is that and that is a realistic charging scenario yes that's precisely the scenario that pattern jury instruction thirty five point sixteen addresses and that instruction adds to just the general description of the elements a specific admonition to the jurors that they do not need to unanimously agree as to the subsection in i don't know if you know the answer to this or not but in washington state law there is a there's a definition in the washington pattern instructions on what assault on the second degree is and then it has this big list so is the big list typically included in the jury instruction plus this more narrowly tailored second you can convict or mrs so and so if you know deadly weapon or intent to commit or you know maybe there is even a possibility there were strangulation are both of those you so i have not perfectly at personally practiced in washington state and can say based upon my reading of the instructions and in talking with people who have i think that the way that the washington and tractions are set up is there are these essentially definitional statutes of the type that your honor first described with a long list of each of the alternative means and then are the two convict instructions that kind of now with a bit more detail that means themselves all right thank you thank you when you get your honors i want to pick up on a point about charging it's not a matter of practice that the prosecutor has to specify it's not about his discretion it's that that is a legal requirement in washington for a valid charging instrument and that and the charging instrument has consequences for example and if you were to charge one a and the proof or make it even better i think is the facts of the case if you were to charge one see and the proof at trial proves up one day and one c it would be reversible error to submit one aide to the jury because the information didn't charge money so that is that goes to show that these individual subsections are really defining separate crimes if they were just alternative means just just facts and again that's i think that's critical to remember that when mathis was talking about means they were talking about facts they used the phrase from richardson brute facts to support an element that's not what's going on here one a is not a is not a fact one a isn't it is to intent elements and the actus reus of assault that's that's much more than a means and i'd like to briefly discuss the washington case and smith just to sort of understand how that relates to what was going on in mathis and the kind of statute issue and mathis mathes involved a burglary statute and the question was whether the issue the definition of premises in the burglary statute swept more broadly than generic burglary i think just as an aside there hasn't been a supreme court case dealing with this categorical approach in a statute structured like washington's they've never actually had to deal with it they've always been dealing with a single statute that defines one single crime with one single set of elements so in math you had the problem of the definition of structure was too broad and iowa had said well look that's just a fact that proves up the element of the location that's a means no problem the issue in smith the actual holding in smith is perfectly consistent with that the issue in smith was not the statute as a whole and what do you have to do for one a one b it was what do you have to prove for an assault there are three types of assault in washington that proves an element so washington is consistent with how they apply this they just used what is frankly confusing terminology when you're trying to talk about means in what is means in washington mean versus what is means in math  question supreme court talks because because again mathis is talking about means equals facts facts to prove a quote unquote as in matheson's terms a single element of the crime the facts you need to prove the building in this case which is a which is a death saw with a deadly weapon the equivalent would be the deadly weapon the facts needed to prove a deadly weapon is it is it a gun or a knife that you know that kind of  what washington says alternative means they're talking about the different legal theories from which an assault can be charged intentional assault sought with a deadly weapon assault by strangulation these are different legal theories that themselves have distinct elements again it's like if you look at the pattern instructions in just look at the statute each subsection has distinct elements distinct intent elements distinct actus reus elements they are functionally defining different crimes i understand that washington has codified it as a single statute and that the washington supreme court has said yeah there's one crime of assault that can be committed by these alternative means but you're not wedded to the fact that they say alternative means doesn't mean that these are alternative means as that term is used in math and i think that's where the assists kind of gets confusing but his judgment pointed out it's like if you actually look at how this operates in practice when you charge one see you got to prove up one c and one  alone it is one c the provides the elements that the jury will have to find to convict it again as i pointed out in the case law supports this it would be reversible error in the case charging one see the charge the jury on one  will again if these were just if these were just facts just facts to prove an element that wouldn't be true but that is in fact true and that is in fact how washington applies its statute the confusion in this case frankly is just because the washing supreme court has used confusing language and that again i guess that leads me to my question i asked you before if that's really your argument i don't know why you stipulated then that there's not a court categorical matt well what what  you're doing in one sense is you're saying that the overall statute is not a categorical match and therefore it's got to be divisible because you've got to go look down to see what being proved and i don't know that argument it is a different argument and i'll try to briefly and that's why i ask you the question seems to me you confuse the issues if i'm going to say it's not a core categorical match then at that point i've got to go through and determine if that means or if it isn't a means well and washington very well says it is a means and the bottom line is counsel's been pretty great and pretty sharp she says they're not different crimes they're one crime well they don't have to be different crimes i e codified in separate statutes they have to be quote functionally different crimes and that's what they are i understand that they have a unitary label but the elements of one a are distinctly different from the elements of one c one half now to answer your honor's question about the government's argument the government's making a two step argument step one is that the the function inquiry focuses on the statute of conviction the elements of the statute of conviction and we contend the statute of conviction in these cases is one a and one c respectively so you don't need to get to divisibility but the government has argued in the alternative that ok if you disagree with this then the statute is visible and i would point out that even if in the hypothetical not the hypothetical the the actual case that comes up most often in washington is where you charge a violation of one a and a violation of one c ok to sustain that verdict both elements of both elements have to be proven beyond a reasonable doubt government that they think the court sustain that conviction unless both want to and once we are proven beyond a reasonable doubt what the prosecutor has to prove beyond a reasonable doubt is what i have always understood to be the elements of the crime the fact that the washing does not require an expression of jury unanimity on that point can't change the fact that they still have to be proven beyond a reasonable doubt will the crime one and one see can be violated by the same act yes they still whipping yes they can and that's and that's why i say like that's usually the variant you see charged in a if you're going to have a single count with one a and one c and it makes sense to charge it in a single count because actually to split it out is kind of multiplicity it really should be because it's a single act but the point is that when you charge it like that you have to prove both beyond a reasonable doubt when the let's go back the other thing is what you're really telling us is that the washington supreme court didn't mean what it said and so i think well if i'm right so then you go to the washington jury instructions with which the supreme court is quite familiar and they talk about three different kind of crime as it exists under washington law the kind where you basically have a single element which we don't really have here so that's out then there's two other kinds one is statute that set forth multiple offenses each constituting a separate and distinct crime and then there's a third kind they set out single offense that may be committed by alternative means and the washing supreme court says it's that latter that we have here and you're telling us i think it's the one before that correct that it's basically multiple offenses in a single statute is that what you're saying no i would certainly never say the washing supreme court did not mean what it says what i would say is that when if we if they meant what they said and we read it then you lose i don't think so your honor because when they say again is when they say it's a single crime well turn o means they're not using that term as it's used in math us alternatively let me ask you this if you go to washington pattern instruction for twenty and it uses that phrase which mirrors the washington court that one way you can look at a category of statutes or statutes that fourth set forth a single offense that may be committed by alternative means or in more than one way are you saying that the worsens print court doesn't mean that category of statute no and if you go look at the cases where they're talking about this you have statutes often it they had the originally start the this distinction originally drew from charging streams and whether something is charges multiplicity so not normally the rule is if it's two separate statutes you can charge two separate counts if it's one statute you charge it in one count that's how this whole business started as a matter of historical practice but that doesn't answer the question of what are the elements of the crime that have to be proven and again that's what we're focusing on here it's important not to get hung up on the terminology because again math is never said a divisible statute has to be separate statutes decamps actually use the phrase no most of course it doesn't because we have and we have limited circuit examples where we said a statute is divisible sure and it's in the same you know religion in this and it's in the same quote statute sure and i would suggest that when de camp says quote multiple alternative versions of the crime singular this is exactly what they're talking about there is a crime singular but there are alternative versions of it seven different ways to prove it each with their own elements that has to be what the supreme court had in mind when they said alternative versions of the crime singular that's what they're talking about they're talking about this kind of statutory structure right we've taken you over your time thank you there's only a minute for  and they also took you over your time so thank you i would just very briefly i think that your honor in looking at washington pattern jury instruction four point twenty that the court was just referencing i think that demonstrates that especially when we consider that washington means what it says in the state we say that this is and that there are statutes under washington law that have that contain distinct crimes and would be divisible under mathes which is that second category of remembering that such as correctly the second court category of crime that's described in four point two zero this is an entirely a different kind of gory of crime where the alternatives within the statutes are means they do not rise to the level of elements as that is contemplated madness and therefore the statute is not divisible the only other thing i would note very briefly is in the government's discussion of fuller i think that if the court looks to footnote four of that decision i think that that's informative in some respects because it notes how unusual the practice is to have alternative means charged in separate counts and the court there didn't address the issue because it wasn't raised by trial counsel whether that presented i think the language they use has other problems but i think that the other problems that would have been alluding to would have been that the charging document was multiplicity us because in that instance the prosecutor has made two separate counts of what is very clearly under washington last single crime thank you thank you the case just argued united states versus slate is submitted i would like to think mr morgan thompson and also ms hartfield for this discussion i'm not saying we've completely exhausted it but we're nearly there i might say as to the next two cases unless you have something very distinct to add to the discussion i know some of you have individual issues in your cases that weren't present in these previous two cases so we'll now hear argument in united states versus painter