next case united states versus capers morning your honour's made these the court benjamin sulpher men this is andrew patel for james capers i'd like to argue two points this morning if there's one minute towards the end i'd like to address the end sufficiency of the evidence on the apprentice conviction but i'd like to start with the argument that we raised and are supplemental that in light of sessions there was a plain error and the jury instruction on the crime of violence aliment nine twenty four j conviction can i ask a question  charge that was with the pattern of fraud to get activity was exclusively a series of narcotics offenses wouldn't one twenty four see a violation be able to be predicated on that as a drug trafficking crime i don't think so your honor because nine twenty four c two defines drug trafficking crime very narrowly only as crimes that fall under the controlled substances act and the controlled substance and port export act and i think a violation of rico regardless of the predicates can never fall within that clear definition but we think that error was in instructing the jury that no amount of congress aggravated felony is can be things that aren't aggravated in some cases aren't felonies and things that are crimes exclusively related to drug trafficking aren't drug trafficking crimes and god bless them as the term is narrowly defined understand work with the law we're given yes trotter and we think that the law where it is now is that in order for the racketeering conspiracy and count one to qualify as a crime of violence it has to have at least it has to be a conspiracy to operate the affairs of an enterprise through the commission at least two predicate acts honor we believe plan errors appropriate for the following reasons first this is an unusual circumstances where you have to intervene in controlling authority before the judgement is final and the waiver case is that the government sided at least from what on the face of the opinion is salads didn't involve intervening controlling authority and we respectfully submit johnson already on the books yes your honor and terms of the modified plan air standard we don't think that this case requires a determination of whether viola on the modified plane era standard is still good law we think that we've proven prejudice but i do think that those cases are important because they show a decades long tradition in this court of recognizing that it would it would not make sense to force defense lawyers to have been invalidated if you assume it was on the books and it was pursuant to hell at the time of the trial then you know racketeering conspiracy that involves narcotics i think anybody would say it involves the risk that force could be used would been a frivolous argument would say that perhaps with the supreme court thinks no one could possibly tell who you know i was to you know looking at the opinion in hell and i was looking at the my and i thought i don't know who's right i just know where they got five votes and so we think that  you know back then the objection would have been frivolous if that were deemed to be a waiver to have assented to the government's template in those circumstance and the message to the defense bar would be that effective assistance requires renames or frivolous objection that will drive district courts and the government crazy and inability to issue in any stipulations or concessions that efficiently move criminal justice it was already decided discusses the risk of force clause because two weeks ago the supreme court invalidated as void for vagueness materially identical language in eighteen u s c sixteen b hill and this court's opinion the cost to have recognized that the two statutes are to be r together it's the only sensible application we think we think this panel has free to disregard the the authority of him or two or two to regard it as abrogated when it when it when this it has not specifically been aggravated your argument is that it follows inevitably from another decision but i believe that's hard to believe it follows now believed from straight from application of the supreme court's decision to my in terms of whether it would require on bank rehearing and if that's the question i don't think it would i think it's a pretty clear application of demaio you have the supreme court having and validated prevailing that's the identical words in another statute and wondering why you even bother to say materially authority if it would if that if the rule was that the defense's agreement to join a charge that was then sound under control and on this process that is waiver of an issue that couldn't have been  forseen defense counsel will never be able to stipulate to anything what the government will never be able to agree to a joint request to charge and it will dramatically hender the efficient administration of justice within the circuit and you know it how could it be in effect it would certainly be ineffect assistance to waive the dispositive jury charge and a murder case and we don't think it could be an affective not to have you know it we don't think it could be ineffective to forego what would have been a frivolous objection so we think under these unusual circumstances that don't come guideline instead of thirty six levels for the drug guideline the p s r paragraph fifty four fifty five and page five of the sentencing transcript make clear that that in turn was based off the jury's finding which we believe a sense of you know what you ask for you might at least if you win on count five get five years off are you suggesting that the judge gets to do a de novo resentencing now that's our argument and why couldn't the judge consider so long as there is a life sentence of the on the narcotics charge why couldn't the judge consider the murder of which he was convicted after all found guilty beyond a reasonable doubt by the jury is relevant conduct there's no question he could but he did well but he couldn't resentencing and maybe and maybe he did after all the supreme court has told us that a judge can consider the availability or the mandatory nature of the consecutive sentence in sentencing on some other count right now is that the judge doesn't have to say here's your sentence for count one and that's totally blind to the five year mandatory and then i'll put on the mandatory on top of it because they don't do that you can recognize the five year mandatory and therefore give a lower sentence on the other count so why why shouldn't we and any event send this back if you're right with respect to count five and tell the judge you know rethink your freedom to do whatever you think is appropriate in the new circumstances of only having these counts rather than those counts to deal with your hon i agree with that and i and i think it would be relevant because the p s r which appears to be what the district court adopted you know grounded application of our guideline of the jury's findings we believe that you know if there was no sufficient evidence to support that finding that would be a relevant argument for defense counsel to raise at that time on that reset and say no sufficient evidence for what we believe there's no sufficient evidence to support the finding that the murder was that that  why isn't the i thought the rico predicate included murder under state law it did your honor but then in order in one way or the other if there was a murder under state law whether it was charged anywhere in the indictment or not that is something that is available to the judge as relevant conduct because the judge thinks that it is even by a preponderance of the evidence related to the narcotics conspiracy even if you are right somehow that the it isn't connected beyond reasonable doubt in a jury couldn't find that as a stand alone crime i'm having trouble understanding why a judge faced with a tent a life sentence on an unchallenged narcotics sentence could not take into account the fact that the person standing before him had been found but a jury without challenge beyond a reasonable doubt to have committed a murder under new york state law he  bronx for murder and everything your honor saying we agree with that could be considered henrique response in your honor false right our main point as to the nine twenty four j count should be vacated because of what it can to a directed verdict that count one automatically qualified as a crime of violence even absent jerry findings with respect to the predicates that would be necessary to render it a crime of violence because you know this court has had a conspiracy to commit a crime of violence at the at the object  conspiracy is a crime of violence the conspiracy is a crime of violence but this court an event that also said that a substantive rico offense is only a crime of violence if it involves commission of two racketeering acts that themselves a crime of violence so a conspiracy to commit substantive rico offense that only involves a commission of one racketeering act that would be a crime of actual threat and attempted use of physical force would not be a conspiracy to commit a crime of violence under this one would have been the robberies all predicates is recommended but not required so there was only a special interactive toys with respect to the apprentice shoes that under one nine hundred sixty three could raise the maximum possible exposure if there'd been a complete verdict sheet as to proven not proven what racketeering acts every single one wasn't within the scope of the conspiracy things would be a lot clearer now but it's not and because it's not we don't know what the jury thought you know but emphasise that mr capers was acquitted of murder in connection with drug dealing with respect to this exact same murder right so the jury had a very nuanced understanding of what was going on there were two presentations and summations there was one presentation by the government this block that  the jets the sharks very monolithic you know using almost like the organized crime framework and there was the defense presentation which is you had kids who hang out with each other on this block and that block it's all very informal and obviously the jury found that at least some of those kids could form an please the court my name's scott hartman i represent the government on this appeal and i represent the government in the district court below with the court's permission i'd like to start by addressing this argument that was made about violent predicates because i think that's something that should really be focused on here it is true that the verdict form only asked the jury to make findings with respect to the predicates or the objects of a conspiracy that increased the statutory maximum the apprentice factors so that was asked questions found by the jury in order for the statutory maximum to increase but there was lots of evidence and the indictment did charge other violent acts as part of this record tearing conspiracy which is why the parties all agreed at the time of the charge conference that if the jury that this conspiracy existed in that the defendant joined it it would constitute a crime of violence i know that in the defendant's opening brief he says specifically that he doesn't contest the sufficiency of evidence establishing that he conspired with  challenging the sufficiency of the evidence but that's different from saying the jury found and we don't we don't know because no one asked the jury to return a verdict on all  you know maybe next time you'll ask i think the point here is that no one could look at this record hearing conspiracy and view it as anything other than a crime of violence there was ample testimony here about the exchange of shootings between the two gangs and the defendant's joining of this gang with the understanding that one of the objectives of the gang was to commit acts involving murder including attempts at murder against rival gang members and that there is evidence about that that set forth  our brief at pages twenty four and twenty eight twenty eight about the defendant's involvement in the gang and the gang's activities specifically targeting rival gang members there was a cooperating witness named jesse ervin who testified about the fact that in order to stay a member of the gang you had to put in work which meant to retaliate against rival gang members and that included through things like shootings and other acts of violence that there is testimony about the transcript of pages to a six and ten but so what is the jury verdict is really a question of those well i think the point here is that again this is something that was not really contested below and that's and that's the point of the waiver doctorin here is that there was no dispute that this was a violent enterprise that the enterprise was engaged in violence and the only real dispute the issue that was being tried in this case is whether or not the murder itself was committed as part of the record tearing enterprise and so it wasn't unreasonable for counsel to waive this argument and they did waive it and the idea that somehow it was just dictated by waive it or forfeit it well i think they did both actually i mean they waived it in a sense they joined our request to charge it was a joint request to charge we what happened here is we drafted a request a charge we sent it to defense counsel they marked it up and then we provided the joint markup to the court and that was the parties joint request to charge so there was nothing in the parties joint submission that indicated that the defendant had any question about whether or not this enterprise would constitute a violent criminal enterprise a violent predicate for the one twenty four j you think the defendant would agree to the church today after tomorrow he may or he given the position that he's taking here i imagine he would not it's not a very big difference between saying to the court the parties jointly request this i mean if the if the objective is to get the court to charge at the defendant can do the same effect by saying the government is requesting this we don't object well i think that would be a waiver as well if he said we don't object we don't object is not a waiver it's a forfeiture i guess the that's true here well the failure to object and that's right to a wall i mean i think here it is different should have happened here is if the view was that this should have been preserved one thing to note here is that it was not a surprise that done miles was bubbling up through the through the court system and this was an issue that at the time was being hotly litigated in the district court there was a companion case that charged the rival gang where there were motions made about the johnson issues and there were issues with respect to the court's decision in hill and whether it applied to a record hearing conspiracy so this was very much something that was in the in the air and the de my decision by the ninth circuit had already been issued at the time that this case went to trial so there was a circuit split  that was that was president already on this issue and so it's not as though you know i take it part of the argument here with respect to the waiver in the forfeiture is that defense counsel couldn't have anticipated that the supreme court might ultimately come out on the other side from this court on this issue it's not it's not correct that they couldn't have anticipated that there was certainly a lot of disagreement in the circuits about that issue but i'd like to shift to the argument about plain error here because i do think that even if you apply a plain error and you know there are in justice thomas dissent as well as in justice course as concurrence they both talk about the fact that under certain circumstances it may be appropriate to apply a more fact intensive inquiry in determining whether or not something is a crime of violence nine twenty four c is very different from section sixteen be in the reason for that is because the facts are all before the district court judge there is no need to speculate about and they are contested in the in the case in which the in which the consequences of factual findings are apparent absolutely the unfairness of using the fact based approach in prior convictions  that there are certain things that can can become established fact in those cases that weren't contested because they didn't matter at all in that case but they can turn out to matter a lot years later that's absolutely right  it's very different to be dealing with the prior conviction that was you know rendered years ago and dealing with conduct that is an issue before the district court and so the district court could properly view the facts and make a determination about whether or not this kind of was in fact a crime of violence on these particular facts that's true that didn't happen here that's correct there was there was no need for the district court to make that finding again because this this issue was waived it wasn't raised before the district court but if i could just speak briefly to this issue of plain error because i think it's really important to understand you know judge lynch raised this question about whether or not the fact that the jury found in a hot narcotics predicate could itself renderer the conspiracy a drug trafficking crime we agree with defense counsel that what the statute says is in order for a crime to constitute drug trafficking crime it has to be punishable under twenty one there is an argument that that's true here because section one hundred sixty three cross references title twenty one and so you could make an argument that what happened here because of the b one a finding is that the defendant was sent in and sentence also under title twenty one but even putting that aside i think what's really important understand here is that the rico conspiracy and the drug conspiracy in this case were inseparable the testimony established overwhelmingly that what motivated this violence was the desire to control the drug trafficking turf in this area and there was there was ample testimony about this from jesse irvin from and rebel who are the cooperating witnesses who testified at page twenty one of the trent two hundred ten of the transcript mr irvin talks about the fact that one of the reasons you retaliate is because if you don't you can't continue to sell drugs in the area so so that's one thing to keep in mind is that in terms of the presentation the evidence and what the jury heard that there was no light in between what the drug conspiracy was and what the record conspiracy was and you know the jury agreed with that because they found that be you want a drug conspiracy as a predicate on the apprentice factors for the record tearing conspiracy there was no other drug conspiracy that was presented to the jury it's not as though there were some separate drug conspiracy that was being tried or there was some argument that there was a separate drug conspiracy other than the record knows you have to show that the defendant sought to maintain or increase position in the enterprise and in our view what the jury concluded here is that the defendant may have wanted to commit the murder in order to service the enterprise but he wasn't specifically focused on maintaining or increasing nuanced conception brings so they were instructed they were instructed and they didn't i think what the verdict shows is that the jury did have a nuanced understanding of this because what the jury did is they they made a finding with respect to the see that the murder had been committed as part of the record conspiracy they made a finding that the murder had been committed as part of the nine twenty four j firearms count which was to both the drug conspiracy and erecting conspiracy they they didn't agree with us on the murder native records hearing and the murder during the course of the of the drug crime but those again are statutes that have different language different elements and the jury was entitled to make that finding i think what the jury's verdict shows is exactly that that they were sort of just lumping this all together and saying ok you know we agree with the government's theory they were really looking at what the elements were for each of these crimes and making thank you so i think that it's pretty much agreed now that the instruction was wrong and the issues are waiver and harm with respect to waiver the idea that defense should lodge an objection despite controlling press and people were puzzled as to whether that was consistent with supreme court law when there is a case finding its way up to the supreme court at that time might well call that into question this is not does not like your routine all these johnson issues these are not well this has been well settled for a million years in the circuit and it's just sort of a hail mary that maybe someday the supreme court will reach a different conclusion thi controversial set of issues i agree but hill was very intensely litigated the defense of our made its presentation of the circuit ruled and we live with the rule that's handed down in terms of harm i think the most important  to address judge tony from his point about the court on count two is also the acquittal on count four that the jury found this was not in support of drug dealing and i think the notion that these were all definitely the same is just something that the jury rejected mr capers was also acquitted on  the nine twenty four c count i think it's pretty clear and again this is not a sufficiency argument we don't need to construe everything and the government's favor we're talking about reasonable likelihood of a different outcome for purposes of marcus the fourth prong of the play an error standard  what i think for those purposes the counts of acquittal all three of them are just as important to consider as the counts of conviction and i think what the counts of acquittal show and the jury didn't believe these are all necessarily enter twined and in terms of the question mr hartman said you know that the judge could find it was a crime of violence no we don't think so that's our point in any event as was pointed out there was no judicial finding but we think that this is clearly of the offense is a factual determination about the offense that's a prerequisite to the infliction of punishment in a finding of guilt we think under the supreme court's precedent and eileen versus united states that's an element that should have been submitted to the jury to decide and we think that given that there were no findings as to the predicate on the rico and given that the jury acquitted on three other counts it's impossible to say that the error was harmless if there are no other questions i would just like to renew we put in an application for a reply brief the government has informed the court that their submitting a brief on may fourth in the united states be buried before this court and we think we obviously understand the court would want to know the fully fleshed out views of the department of justice on this