soon the next case this morning is the united states versus duncan in a place the court of the indiana statute criminalizing robbery by fear is not a violent felony for two reasons each independently sufficient to reverse mr duncan sentence in this case first all of the in all of the indiana statute requires is that the victim be afraid of me or bodily injury which the indiana legislator legislature and the courts have repeatedly defined as any physical impairment including but not limited to physical pain in florence versus ashcroft this court held that indiana's bodily injury requirement was the defendant's prior conviction was for domestic battery with the additional specific element of bodily injury indiana has a normal body battery statute that does not require any additional finding  property if you say give me your car or i will give you have her cod i'm likely to take the paper cut you made that wish for us from robbery cases the fact that the fear is sufficient to cause someone to park their property implies a particular level of threat you know that brings me to my second  point as to why indiana robbery by fear is not a violent felony because unlike other robberies statutes indiana's robbery by fear not by force but by fear is entirely focused on the subjective perception of the victim the court is absolutely correct that if i said give me your car i will inflict upon you a paper cut if that compelled me for because of my deep and abiding fear papercuts to depart with my property that would satisfy the indiana statute however that is not the kind of violent physical force that the supreme court noted was required under the armed career criminal act in johnson the two thousand and ten case the supreme court entirely adopted this court's reasoning in florida johnson the supreme court signal so but but what's the signal from the clearest signal i guess that you can point us to from the indiana courts that a fear of something less violent than a slap in the faces sufficient to support  robbery conviction you're another india and a cases such as cross and jones and butler all of which describe conduct that would not be ordinarily considered force under johnson and cloris i'd also point the court to the jury instructions and the c cation of bodily injury in the end in the indiana code and there as the indiana courts in the case called bailey discussed the indiana legislature and a common law had made the very particular and deliberate decision to not require more th in bodily injury indiana unlike other states a separately defined moderate injury and serious injury from bodily injury and in bailey that the indiana supreme court explicitly rejected any attempt to elevate that threshold requirement to talk about more directly your question in the the admittedly slightly older case of costs to defend its walk into a gas station didn't say anything to anyone in the gas station didn't display a weapon didn't touch anyone picked up the cash register back in the days before they were bolted down assume and walked right out the victim testified that he was afraid but not of anything in particular there was nothing that those defendants did that could be described as force either actual attempted or threatened use of force fair statutes as the supreme court in this court has has noted and as the fourth circuit in gardner just last week noted each state is entitled to define their own criminal code as they see fit indiana's criminal code especially especially their bodily injury requirement is extremely different analogous to illinois offensive or provoking conduct i'm not asking this court to overturn lewis because i believe the combination of the most recent johnson opinion and the two thousand and ten johnson opinion do that for this court  specifically in lewis the court makes sort of a two part holding in the first part they conflate robbery by fear with robbery by threats which is nowhere found in the indiana code and say that in the second part of that holding the indiana interprets the fear version of the robbery of sense to him to include and to require in fact not just include but require a finding of fear of physical injury your honor what the indiana code requires is a fear of if have bodily harm not of your physical injury and those those things are different because the indiana code explicitly and repeatedly has defined bodily injury both to their common law but also in their code itself the indiana jury instructions particularly excuse me particularly fourteen point six explicitly defines bodily injury in the same way that it is defined in the code pain any physical impairment including pain any physical impairment and so and so is the the court described some fire as if a defendant inflicts a paper cut on a person even if that paper cut causes no pain that is sufficient under indiana's code in bailey indiana the indiana supreme court made it very very clear  defense efforts to suggest otherwise that there was no threshold requirement for the duration of the pain the intensity of the pain the type of the physical impairment as long as there was a physical impairment and for example in that case the defendant repeatedly poked his ex wife in the and the government has made the point either in this case or in one of the others and i'm sure that when we're dealing with these problems we should really treat these as not just an exercise you know legal imagination but should focus on realistic possibilities for applying the law in this way i've never seen a papercut robbery conviction in the analog you say bailey is a tap on the forehead this is in a domestic violence situation as you know where the basis for fear would be fairly clear so in terms of robbery you know the hand in the part that menacing gestures and so on obviously can be perceived as a threat a very serious bodily injury or death so in the robbery into the gas station walked up to the cafe just written up a simulated gun that is not in the record at the certainly one could assume that perhaps that's what happened but that's not in the record well that was what the victim quotation marks in the opinion itself there is no mention of the weapon except to note that there was no weapon seen at any point similarly in the case of jones which is a bank robbery the defendant walked up to the teller said give me the money i'd like to we need to do this quickly as possible never made any threatening gestures never threatened any force never used any force certainly the victim was afraid in that case but i think what we have here is an example of the state legislature very very purposefully defining the robbery by fear statute broadly this was a choice by the legislature to encapsulate a broad range of conduct into their robbery by fear prong as as opposed to narrowing it after many opportunities to do so in an in an effort to capture more con duncan sentence accordingly we ask that you offer about a decade ago this court in us me lewis found that indian robberies a crime of violence under both the force and the residual causes of the sensing guidelines it's a firm that holding numerous times supplied it to aca and to the extent that it samuel johnson which is what i refer to the two thousand and fifteen case affects that it affects the residual clause aspect of the holding but the forced clause aspect of the holding is it in any event this court has reaffirmed that holding that indiana robberies a crime of violence numerous times since two thousand and ten since curtis johnson additionally says the court in the us didn't consider flores in the force required the court cited florus in the lewis decision and i think it was well aware of that standard but ultimately the court got it right in the us and did apply the right level of force and mr duncan's made the argument has a qualify as a crime of violence your honor i think i'm sorry i think as judge hamilton pointed out the supreme court has told this court to consider reasonable probabilities of how indiana would apply the statute and not just legal or loyally imagination and i haven't found a case that involves a paper cut resulting in a robbery and i don't think mr duncan is cited on the case that he relies on most it appears now is cross that's a hundred fifty six indiana supreme court case and if you look at the structure of that opinion the supreme court went through the facts of the case but ultimately the question they consider they ask a hypothetical question is the court able to conclude there was no evidence before the lower court of probative value or reasonable inferences indicate appellant did not threaten the collie by his gesture suggesting a gun in his right hand in his side coat pocket so the way the indiana supreme court was interpreted the facts of the case is the defendant was gesturing implying that he had a gun in his pocket and that's the threat in use of force that's threatening a victim with bodily injury that if you don't comply with my demands i'm going to hurt you in some way with the gun in terms of the argument that indiana robbery has some lower threshold of bodily injury then other states i don't think that's borne out by the law and this court's precedent what flo says is you need force intended to cause bodily injury or at a minimum likely to do so curtis johnson the two thousand and ten supreme court says is you need force capable of causing physical pain or injury to another person indiana basically tracks that there's no requirement that it substantial injury or more than just any bodily injury and that's yang an opinion that post dates samuel johnson this court found that minnesota domestic salts which can be committed by putting another in fear of bodily harm is sufficient minnesota defines bodily harm is physical pain or injury illness or any impairment of physical condition and  post curtis johnson case the court considered illinois bodily injury illinois bodily injury is some sort of physical pain or damage to the body like lacerations bruises or abrasions whether temporary or permanent this court had no problem finding that that is sufficient bodily injury to meet the threshold of curtis johnson and i think this court's consideration of bodily injury or excuse me injury under indiana law is probably most evident in the ellis case that's the case where this court found indiana intimidation is not a crime of violence because it just says you can intimidate by putting someone in fear or injury and what this court said is if indiana had said fear bodily injury then it would be a crime of violence under the force clause that implies that indiana bodily injury is enough to constitute force under the force laws and i'd like to just quickly touch on the other points that mr duncan says shows that lewis isn't good law and that's that it focuses on the subjective perspective of the victim indiana does allow like common law a conviction for robbery by putting the victim in fear and as the court said it's the flip side at the core of the coin excuse me it's another way of looking at it but what's important about indiana robbery is judge grosvenor noted is you have to take someone's property by putting them in fear it can't just be an incidental hey you happen to be in fear i'm going to walk up and take your property the defendant has to put the victim in fear and that's the causation element that the indiana courts of talked about unless the court has a questions i'd like to briefly address the twenty a j letter that was filed yesterday i don't understand mr duncan to be making an argument now that indiana robbery by force is not a crime of violence to the extent that he is that argument's been waived it was brief down below in pages seven to eleven of  relying on this court's numerous precedent finding that indiana robberies a crime of violence so unless this court has any other questions you would ask that you affirm the sentence thank you thank you  specifically specifically related to the argument that we make about robbery by fear as these this court and numerous courts to recognize repeatedly states are entitled to define their own criminal codes as they see fit and therefore th opinion interpreting other state statutes and other states definitions of their own bodily injury requirement do not direct this court's decision today rather what does is this court's decision in fluoresce which very carefully and specifically evaluated the definition of indiana bodily injury indiana has could not be clear about what is required to satisfy their operate by fear statute unlike many other states indiana has gone to the t find their bodily but bodily injury standard they've gone through the trouble of including it very explicitly in their jury instructions while at the same time developing it through the common law the government asked this court to sort of disregard all of that but that was precisely the persuasive argument that this court adopted implore us this court looked at the indiana state law and said under the indiana law this would be enough that categorical approach that method for set forth in taylor asking this court to consider the scope of conduct that could be criminalized by a particular state statute should be applied equally today and for that reason indiana's robbery by fear should not be considered a violent felony all right thank you thank