at the outset judge black and i wanted to welcome again and introduce to you are visiting judge our friend and colleague judge jane rist ani who was appointed by president reagan and three to the united states court of international trade in new york where she served with great distinction she was the chief judge of that court from two thousand and three to two thousand and ten and we've had the good fortune of being able to have her come join us and sit with us many times for more than twenty years and we're delighted to have her and wanted to again judge astonied to welcome you to our court thank you to other very brief observations at the outset before we begin for those of you who may not be familiar with our practices and procedures you will note the lighting system that we have the timing system that we have green light of course means you may proceed yellow was a two minute warning red means your time is up and we'd be much appreciative when that like goes on if you could bring your remarks to a conclusion rd in last observation again as you proceed with your argument you may safely assume that we've had a chance to read the briefs the the instances we've had a chance to look at the record as well so feel free to go right to the heart of your argument with that will begin with the st case which is the united states versus lee on the corner good morning in may it please the court my name is amy lee copeland and i represent the appellant leon carter forty one days ago i would have argued this case in an entirely different manner because forty days ago a prior panel decided united states versus moss so as i stand here before you today forty days after moss i believe this case really is about today two different jurisprudential doctrines the law of the case doctrine and the prior panel precedent rule as for the form of the law in the case doctrine yes in a two thousand and sixteen appeal brought by the government carter across a field whether he was eligible as an arm career criminal or under the aca act at all he had a different trial counsel so it was plain review it was not an argument raised before the trial court the court found this court found no plain error in carter's acca status based on the lack of binding precedent on remain and where the government propel prevailed on this appeal i preserve this argument no one sided law of the case not the government not the probation officer not the court i disclosed the fact of the court's opinion to the court of course the government didn't argue it in this appeal brief either so there seems to be little doubt that today you can sue a spotty appl the law of the case doctrine but there is an exception where controlling authority has since made a contrary decision of the law applicable to such issues which brings us to the mosque case that was decided on on april the th on april the  will note in the mosque case a judge did withhold the mandate in that case but there is internal operating procedure number two to rule thirty six that says the status of the mandate doesn't affect whether a binding precedent is binding this case has been published it is noted on that the there is a side in the fed rd any of that moss is a published opinion that analyzed george's aggravated assault statute which requires a simple assault and a statutory aggravator her mr carter my client was convicted in one thousand nine hundred and two under the georgia aggravated assault assault statute it does not discuss in any of the shepherd documents under which prong of simple assault he committed the crime it simply just says he committed aggravated assault the plea colloquy in its essence is a page and a half long but in march the panel decided that both prongs are divisible in both the simple assault and statutory aggravator and because it's not clear what type of simple our all fours but what i wanted you to help me with specifically was with the holder of the supreme court there where they said quite on ambiguously quote a person who assaults another recklessly uses force no less than one who carries out that same action knowingly or intentionally so the distinction is between accidental and volitional and reckless conduct falls on one side of the equation accidental or negligent behavior for use on the other how do you distinguish the logic or rationale of what the supreme court said and if was even from what you have here on several bases number one was in seems to be very results oriented it does talk about the misdemeanor crime of domestic violence and how thirty four states in the district of columbia all have various misdemeanor assault statues or misdemeanor domestic violence statutes that can be satisfied by a recklessness component if was in were to imply the l cal intentional force to these statutes it would pretty much gut the entire nine hundred and twenty two dollars g nine system of whether or not a person would be convicted of a misdemeanor crime of domestic violence violence and the  majority opinion does start with that very fact noticing how many different states have this particular recklessness component of the misdemeanor crime of domestic violence without a recklessness component read into these the defendant need not intend to cause the apprehension itself such as mens rea a requirement is more than enough to satisfy the low volitional conduct standard for the use of force why is that account talks about the use of violent and intentional force it talks about a component in the misdemeanor domestic violence statute also does not contain any indication that it's against the person of another when you look at the  st circuits opinion you look at the th circuit dissent they talk about how that's that's very different from castleman even in the midst of minor crime of domestic violence arena has imported a different standard you have to have a forceful touching to be ak eligible violent felony but in the misdemeanor crime of domestic violence it can just simply be an unwanted or an offensive touching so the supreme court has always treated these misdemeanor crimes of domestic violence different than they have treated the intentional forceful conduct required for an aqua felony the it would the point of the misdemeanor crime and i know you know the shot of the point of this is to keep people who have had problems with their spouses away from having guns to come back and kill somebody aca is to keep people who have been repeatedly convicted of violent felonies and drug offenses from possessing firearms this requires intentional volitional conduct that has always been the rule from lee a cow even even was in realizes that when it says we're not trying to regulate that that is a case for another day and perhaps that is a case for another day in the circuit also under the prior criminal you put the focal point of my question was how do i distinguish the logic if you come back and you say that's different the statutory framework is different that holding cannot dispose of this case it's not all force i would agree with every one of those points but what i don't understand is how we reject the force of the russia now the logic to use force recklessly is all that the law requires that's the same thing the supreme court tells us as using force intentionally the supreme court says tells us that though in an entirely separate context the misdemeanor domestic violence statute doesn't require the use of force against a person and aca does it just says that it has the use of force so what's the use of force going to be if not against the person against a tree some of toward a mobile home said it wasn't his fault basically that his ex girlfriend and her son were standing in front of the mobile home so with the recklessness component it does talk about recklessness directed to other objects and not people specifically yes just have a question about the georgia statute and if he satisfied by mere negligence that would be my concern because it looks to what the victim is in reasonable apprehension of  to a candidate had a shotgun and the barrel of the shotgun was pointed about six to eight inches away from a young man he was sitting there and the candidate his pitch was to to date my daughters what do you need  the kid said sir you need a healthy respect for women and nd amendment anybody who has taken a gun safety course would know that you never point a gun to anybody even if it's unloaded or not but if this kid had been reasonably concerned for his safety the georgia supreme court would have allowed that to satisfy the aggravated assault statute because it's all dictum oriented and based on that i think even that might be a negligence standard because you do know that it please the court i'm nancy greenwood i'm an assistant united states attorney out of the southern district of georgia the distinction judge mark is that you're looking for is that there is no distinction  in the vo scene case when the scene cases that the reckless use of force counts the same and the same amount of force as intentional or knowing use of force and that is why see some logical problems but if both seen one came out before moss and two is not on off force what can we do well your honor the the reality is is that under the supreme court case of kaman versus kemper financial services appellate courts are given a few different options when it comes to issues that have not been briefed for instance in moss that the case wasn't brief but it was argued at oral argument it was discussed there the court was aware of that but presumably because it involves a circuit split and and some some areas of confusion it back court decided to consider the argument waived presumptively an issued an opinion without considering the votes seen case unfortunately that court did not follow the supreme court instruction in the cayman case where it asked that if courts are going to issue an opinion based on truncated law not considering the entire scope of the law that may apply that it should issue  refrain from issuing a binding opinion and that's where the concern is here and that's what we've been titian for rehearing in moss and while we think but it is the law of the circuit and it is resolution of four ezine whether it was cited or not it does seem to me to be on all fours with this case am i missing something no your honor you're not missing that the the issue is that decision is withdrawn or vacated prior to a decision being reached in this or that it would be no different if it hadn't decided the case that way at all correct and that's what we think it's important to consider votes seen here and at a minimum for the government to certainly that apply those seen to find that reckless use of force is enough what they're finding is the statutes that they're analyzing require an intentional act that led to the reckless use of force whereas the circuits that have decided not to find that recklessness min's re is enough are looking at statutes that require a reckless act that leads to the accidental use of force and i think that's an important distinction because if you look at the cases that the st circuit is analyzing those statutes the assault and battery with a deadly weapon can encompass in their least culpable form dui type offens where individuals are injured well that's so like the lyric health case and that their argument is that the act of getting in the car drunk was reckless but the injury of another was to rule today and at the end of the we ruled what would you ask us to do i would ask you to recognize that the moss opinion presumptively deemed the and therefore this court following the direction of cayman vs kemper financial services is going to look beyond the legal theories presented by the parties is going to consider the full scope of the analysis that's required for the arm career criminal act and that would include votes scene but what do you mean by this presumptively didn't decide it and did they say we refuse to consider the scene it's waived no that's one of the concerns is that the mos opinion is silent but the oral argument at the oral argument both seen was discussed case so they decided that it was distinguish well i mean it's a different statute and with different statutory terms there is as your opponent said there's no against person or property language so they thought it was distinguishable while the discussion and the oral argument was not that it was distinguishable it was that it was imperative that the parties who were arguing the case make the distinction between whether or not the th circuit should follow the st in the th circuit in its analysis or whether it should follow the way that sent the six the other circuits that it considered it so and in fact i'm the one who argued that opinion and when i said you know if this court if that panel were to find that recklessness was the standard required under paterson then certainly vote seeing was the overlay that would apply and would allow georgia's aggravated assault to squirm a cut to the chase and ask the question this way let's just assume for the purposes of my question that the mandate is shoes and moss are we not bound to follow morse in this case and if the answer is no is it because they didn't discuss fawzi i think i think the answer is no and it's because there's a supreme court decision out there that is although not on all fours is a it is extremely instructive on this issue and it was not the even if you were right about the russian now obviously mor rule in that way so was the problem that moss didn't discuss foreseen i want you to assume again for the purpose of my question mandate issues why we do the mandate let's just write assume the mandate has issued on moss as a binding law does it not bind this court if the writ does or it doesn't i think that under the precedent that exist it would bind this court for this particular statute but i think that and that's why we'll this is the problem line is we would be obliged to follow a rule against you and rule in your colleague's favor in this instant case you would hear us all we have in front of us this instant case it is but what we know in the context of this is that the moss opinion was only issued forty days ago that there is a petition rehearing in place that a judge has withheld all you are saying is we should wait until issues and see if it does i think that that would be prudent to also think that this court can still analyze opposing even if it doesn't apply it and recognize its importan because i do believe that this is an issue that is going to record well perhaps not under the georgia aggravated assault statute but with regard to manslaughter statutes and other statutes within the state of georgia and elsewhere that are being applied i think palomino garcia is no longer sufficient precedent to be applying in these sorts of analysis and that's have to wait for a different case we can't this run around can i ask you to think question i as for the airplane it is georgia assault statute truly about recklessness well again i mean and that is i think that is one of the reasons that  has not come up in some of the earlier or arguments is because it wasn't clear whether or not recklessness was in the now of course last court has said recklessness is the stand i'm asking you whether the door to statute even requires neck recklessness statute under patterson states that in the patterson case the analysis there was an individual had driven a car toward an individual who was standing near a mobile home and in between that between the vehicle in the mobile home that particular defendant in challenging the assault on the state level was asking for a reckless driving lesser included offense jury instruction the court there on the state court level indicated that that lesser included offense of reckless driving was the same standard that was applicable for the aggravated assault itself and therefore it wasn't going to give of an additional jury charge a lesser included recklessness jury charge because recklessness is what was required for georgia's aggravated assault statute so under the patterson case patterson states that recklessness is the same mens rea as the reckless driving offense and therefore that's where i believe the moss court in and the georgia supreme court has come down that recklessness is the standard for georgia's aggravated assault now in the patterson decision there's a dissent that was written that talks about how georgia's aggravated assault is really more of a strict liability crime and so forth but that was the dissent the opinion of the court the georgia supreme court which this court obviously you know followed in its holding in  moscow and would follow here is that recklessness is the standard for george that debate as saul and that's where votes seen becomes important but until that decision was made the scene wasn't we but we did sign that active employment is what was required not of force and and that's what is present and required in the aggravated assault statute we didn't cite of those scenes specifically but we distinguished between lee account and we also talked about the morale is alonzo case that this court in its published opinion issued related to whether or not the aggravated assault whether or not the george  enumerated definition of in the guidelines but in that situation again this court said that active employment is required active employment of the weapon was required under the aggravators statute and that's the argument that the government made there but at the oral argument we did argue the application of those seen and the fact that if recklessness was determined to be the standard for aggravated assault that those seen would still carry the day for its use as an a c c a predicate i think that again the important distinction when looking at the cases that have examined votes seen is that the cases that have gone against applying it have done so either under the rule of lenity that there's too much confusion in the issue in the in the area others under the georgia aggravated assault statute where an individual in their least culpable way intends to commit an act towards another person that then causes the reasonable apprehension that they are going to incur a violent injury and that is it's interesting because the context was brought up by ms copeland and the reality is is that the supreme court possibly doing the exact same analysis it did with misdemeanor domestic violence may reach the same conclusion if it looked at aggravated assault so it shoots across the nation the importance here is to just remember that the purpose behind those is to determine what enhanced misapply when an individual has a prior violent history thank you thank you very much if i hear what your colleague is saying it amounts to this mosque didn't probably take into account the importance of recklessness as defined by the supreme court in  since mosques mandate has not yet is should we ought to do nothing until the mandate issues if the mandate issues well then you're right she agrees as she must it's absolute fours if not well then we'll have to wait and see what happens is that a wise way to proceed you know that is those a difficult question which is i'm sure why you're asking it to me  a defense attorney this is an extremely important issue and i understand that everybody disagrees about it there is a circuit split i suspect there is even a split among the circuit privately as to how this should be viewed this is an important case we have this case in front of us what i suspect will happen with moss because of the withholding of the mandate i have handled many appeals and i have rarely seen a mandate withheld i suspect that somebody will ask for an banchory hearing the government didn't ask banker hearing it simply asked for panel rehearing i think that that's probably going to happen and i think it's an important issue and i think it will be decided by the entire court my problem today and perhaps this is a very practical one is as a litigant it is difficult to have a case decided on an issue that has only been raised in letter briefs in response to a lot of the case doctrine and then one filed bout a week or two weeks prior to this argument this should have been advanced under the prior panel present rule it looks to an intervening supreme court decision this is an intervening it was filed two years prior to the government filing its brief in this case and based upon the analysis that i had this is the statute and this is the this is the argument we have today so my question is a very simple one what would you have this court do would you have us wait until the mandate issues or not i would have you wait until the mandate issues ok i what i didn't mean to cut you off still i know your time i think that that that would be my response understand the need for the uniformity of legal decisions  i suspect that today if if the court were to write an opinion i would invision it would be an opinion and then if there were any difficulties with with moss that would be taken forth in a dissenting or can qualify if the mandate had issued the actually looking again at it internal operating procedure to to frappe thirty six dollars the court's own role effect of mandate on presidential value of opinion under law of the circuit published opinions are binding precedent the issuance or non issuance of the mandate does not affect the right result so it is binding if there no further questions thank you very much i note that you were court appointed and we very much appreciate you taking on the burden of well in vigorously representing your client thank you it was a pleasure and thank you as well mr greenwood for your efforts and will proceed to the next case s