morning we've all braved the weather and we're all here on time thank you and we have four cases that are scheduled for argument this morning and the first is  its place in the federal scheme involving crimes of violence and violent felonies and the unfair criminal act these two statutes in areas of law share something in common they are both confusing confounding conflicting and the courts are divided in particular relative to the issue of intent and physical force i have referred multiple times to this argument that i have attacking george's aggravated assault statute is failing to meet the generic standard for an aggravated assault if the core would allow my argument would have been better suited by arguing that it fails to meet the criteria for a violent felony which involves the question whether or not there was the active employment of the use of physical force and whether or not the force was violent let me ask you this question because we've got an issue of first impression here today and we've not previously decided whether a conviction for george's aggravated assault statute at least the two thousand and two version qualifies as a our crime other the arm career criminal act and when i compare the two statutes and i'm talking about turner as warden which we decided in two thousand and thirteen when i look at those statutes there i mean it's almost exactly the same how do we say that georgia's statute is not qualified for those does your apologize i did not look at turner in the last few days i know they are similar but i would submit that the georgia statute has a moral maybe quality and florida's aggravated assault there are two problems with georgia's aggravated assault statute they have basically turn and the tradition in aggravated assault law is that once a dangerous weapon is employed it's practically strict liability and there is nothing that requires the use of any physical activity when you look at the georgia assault statute which imposes criminal liability when the support of the victim as a reasonable apprehension of harm it does not require an act of employment of any physical action on behalf of the actor counsel the answer to judge reason it does not control is that the difference and that's why the eleventh circuit tarna decision does not control law is not even persuasive in my opinion goes the government can can tell me why i'm wrong and if if if they think of a reason that i'm wrong but in my judgement as to lance the judge will terms without must be why i didn't remember it because it didn't apply and i thank you for that but if you're in and you brought up patterson and here's a curious thing about patterson and george's aggravated assault statute and case law if you read patterson it tell you that the that the court says no specific intent is required then that same sentence where they tell you that no specific intent is required they are incredibly continue the sentence and tell you in so many words that general intent to injure is required will generally intent to injure that is specific intent so they can't make up their mind what their law means the problem with ga this aggravated assault statue i think is larger than this federal body of law i was just reading the few precious research service a federal crime of violence definition georgia's aggravated assault  just you i've been in the trenches you cannot defend against it and here is a reason why one of the reasons why what is a dangerous weapon or something that is likely to or could be is open to the wild imagination of the jurors in my case under the shepherd document that is allowed the indictment not the police report it says that the aggravated assault was committed with the person's mouth if it was a bit him with his mouth you know what the district attorney would have put that in the indictment fact of the matter evident and biting in his mouth they're trying to extract drugs out of his mouth now given those facts that are part of the facts we look to the elements of the offense it depends on what part of the country you're in whether you look at the categorical the alternative or the visible our or the modified category i think we have a divisible in modified category sounds like you're going there ought to be that we're bound by the georgia supreme court's decision and patterson versus state yes are they being they say that no specific intent is required and i that there is a split of authority as to whether or not a reckless act can qualify onto their elements clones and yeah and in order to prevail you have  convince this court to side with one group of thirtieth birthday is another is beyond my capabilities if you're going to allow the circuit said and that's got to be a fact specific because the line between reckless conduct and intentional conduct in my opinion is is is is i t's a thin blue line in patterson the guy argued that he recklessly drove the car into the house and ten the guy against the house with a car that's not reckless if that's intentional you can say it's reckless but it's intentional so is it like if it's likely i'll call seth the oco if it says there's a difference between whether or not i push somebody or the not i stumbled into them now we have something to work with whether or not you recklessly stumbled into somebody or  you pushed when you stumbled was it because you were being a clown that that would be reckless the stumbling just an innocent that would be an accident so i've read where we're tied up on this reckless notes issue in the mens rea but i think it's great that we're talking about mens rea and in the criminal world in the first place but i think we've got i think george that at the end of the day the georgia statute even goes beyond the issue of whether or not recklessness is included the way georgia statute is written it in compas is any conduct you can say or do anything doesn't matter what you say or do because the victim reasonable apprehension you're guilty of what about in the georgia statute aggravated assault statute it does say with a deadly weapon but it also says when used offensively against a person that is likely to or actually does the problem i have with that is likely to but it you are saying that just the per se use of a weapon but here it is a weapon being used offensively against a person and how do you address that my answer that exact question is anything can be used offensively any object in this room can be used offensively so how do you say that my us pin which is a deadly weapon used properly is a deadly weapon and i understand your question it is a very valid question but the problem is that they have taken anything that could be used as a deadly weapon and that is likely to or could be does that mean hypothetically or that mean in the in the actual facts of the case when she was likely to actions like it's hypothetically if it was capable of something that you say that capable of or you know known to be they've taken this pin and made it a person and they're treating it as a person a dangerous weapon and liability it's parse a you're faulting part of your intended purpose but see that's that's i think where the language is coming into play is you're standing there right now nobody presumes that just because you're holding a pen that that's a deadly weapon but if you were to use it offensively limitless that's not something that's fair to a defendant because then the jury can say anything is an offensive weapon and that's not fair to the defendant i season i'm sorry i thought you said something ladies and gentlemen your honour's council met please the court on the answer greenwood i'm the system united states attorney in the augusta branch office of the southern district of georgia the issue that this court as judge wilson and you pointed out is an issue of first impression whether or not georgia's aggravated assault statute meets the elements clause of the definition of violent felony under the arm or criminal threaten use of force physical force against the person of another and the supreme court has carved out some pretty clear parameters around what physical force means it means by an force the curtis johnson case said that florida's batteries statute did not meet the elements clause did not meet the physical force requirement because a mere unwanted touching was enough and yet violen physical force is what is required for it to be a violent felony under the elements clause under this definition of a violent felony there also bremner's that have been set by the supreme court with regard to what is use that the use cannot be accidental cal said that said it cannot be accidental the use of that force must be bullish and and as this as i believe judge anderson was alluding or seeing case suggest that reckless use of force is sufficient to meet the elements was there the supreme court was examining a different kind of statute it was examining the definition of whether what qualifies as a misdemeanor crime of violence domestic violence but again it had the same sort of elements laws attentive use threat as that or physical use of that this court needs to reach that decision in this case because the elements clause is meant by it categorically by the aggravated assaults actually under the assault prom of the aggravated assault sachi and let me explain how that happens to commit an assault and i know obviously this court knows that we first need to eliminate whether or not the categor applies before we even go and look at modified categorical approach and if either of the elements applies categorically in every circumstance and we don't need to look at modified categorical and in this case i believe that aggravated assault does qualify assault there are two means by which in this a simple assault can be carried out in georgia the first is an attempt to violently injure somebody well that clearly matches up with an attempt to engage in physical force against the person of another and therefore i think that obviously is going to qualify under the elements clause the more questionable means by which simple assault can be accomplished is the secondary clause which requires an intent to commit an act that reasonably causes another person to have apprehension that they're going to suffer immediate violent injury and the reason that cause also qualifies under the under the elements clause is because it as you've stated in patterson patterson says that there's no intent unlike the turner case where the language is very clear in the turner case it states that the definition is an intentional unlawful threat by word or act to do violence to the person of another well importantly this apprehension clause or portion of the simple song requires a demonstration for that apprehension to be reasonable you have to have a reasonable apprehension for it to be reasonable you have to the defendant has to have demonstrated  the fear is what pat patterson says you'd when i'm committing an act of physical forcible and i don't have to intend to cause the fear that's what patterson says but i have to intend circuits are incorrect with respect to the issue of who the recklessness is and to satisfy the elements close then you can prevail unless you can post to a dose of that seems to me you do not prevail and well right am i wrong well i think that i think that that may be true although i believe that in this particular case because the georgia statute with regard to simple assault has the second part to it not just whether or not you intend to commit the act and whether or not you do that whether that intent is reckless or intentional or knowing but that it has this other part to it which really plays into the physical force part of the elements cause and this is the part that has to do with a reasonable apprehension in order to reach in order to meet the reasonable apprehension or sion of and i say if you ever do that again i'm going to stab here is that a simple assault under the two thousand and two georgia statute stating that you intend to commend or or that the force will be immediate and that's where the problem with that hypothetical is but if instead but you have the recent polls a knife and said as you know you really made me mad and you're in trouble now that needs it because not only and with or without the weapon against the weapon and this other element on aggravated assault that under the modified visible violent force to threaten something in the future i think that now you know there's an argument to be made again whether or not the words or the actions are the things to take into consideration if you merely take into consideration and again i think the difficulty here is when you pull in a knife to this part of the analysis you're kind of stepping now of just looking at whether or not not because we know that with a deadly weapon it's enough under the modified categorical approach there's really no question whether or not that aggravator of using an item as a deadly weapon is going to ramp it up to the incentive use or threaten use of physical force against another to meet the elements costs so it's really more about whether or not the apprehension portion of simple assault is enough on its own to carry the day under the elements was and i submit that it is largely because that language that we require that stated in the danos first is georgia case that's brought up in the lewis vs georgia case and that compared in the lewis case against the johnson versus georgia case from one thousand nine hundred one those are the cases that really speak to what it means and what is involved in creating that reasonable apprehension and what it requires is a show a demonstration of violence it doesn't require a weapon it doesn't require the aggravating factors and the daniels case we have a man whose granddaughter is a student at an elementary school and he goes to a meeting and he confronts the teacher and the principal forcibly not with the weapon but he has it in their the aggression it didn't have he can't stepping in her way he can keeping her from leaving and that was a nun that was a reasonable creating a reason let me ask you this branch was talking about a weapon any thing that's used often simply as a weapon against a person i would interpret it to be intentional myself and there's a lot of supreme  forth suggests that absolutely the problem is in the problem for this case and you'll case it seems to me is that the patterson decision of the supreme go to jo jo which is the law of geology say is that it is not intentional and it says that this statute aggravated assault under the same problems we've got can be satisfied with a injure or that paterson intended to place silver's who was the one pressed against right mobile home with the car it was you don't have to have intent to place him in reasonable apprehension and that case involve both simple assault and aggravated assault so it seems to me my natural reading of this language of the statute  aggravated assault was the same as in the lesser included offense it was necessary so it seems clear to me that recklessness is anough under the georgia supreme court pattison case am i wrong about that you honor you're not wrong if i may answer answer your question i think that the patterson case certainly says that it is the mens rea o requirement regarding making a threat or causing somebody to have fear there's no specific intent there but there still is a requirement that you mean to do the act and i read that it was seen case carries the day on whether or not that element is a nun but i think that where we get to couple that intent reckless or not with the fact that the the defendant is demonstrating violence and has the immediate ability carried out similar to the language in the turner case the florida aggravated assault that is categorically determined to be a crime of violence under the elements clause thank you  judges the government says that the statute should require violent force it's required that's not georgia statute georgia statute looks at whether or not there was a reason why apprehension on the part that is in amorphous concept doesn't address the conduct of the actor sufficiently that's what the law should focus on what was the act and the intent of the actor not the victim and this isn't civil court this is criminal court and then the other elemental issue reckless conduct is becoming a huge animal in jurisprudence because of we're ignoring the fact that some of these statutes do not require the proper mens r would submit to you that if you look at the cases where they do allow recklessness they might be similar to the fact pattern in paterson which say reckless conduct if it is included by some circuits i think you're talking about some pretty sloppy maybe there's an intentional floppy act in there it's not like in the car after you've had a few drinks  court of appeals judge can look at the statute and piece together parts of it and say we if you put these together you have a requirement of intent and violent conduct and all that kind of stuff but we don't have eleven circuit judges sitting on a jury panel it's a bad law and it fails to meet the test for a violent felony all right thank you mr