seventeen thirty eight ninety five seventeen thirty nine zero zero two united states of america versus kind of one oral argument as follows ten minutes for each defendant twenty minutes for each libya also i want to ask everyone to clean is be conscious of keeping your voices up it's a large room and the end of sentences tend to get lost just because i'm blind good afternoon this honorable court and thank you for allowing me to come down and thank you for allowing me to come down and represent kenneth jackson in this case i would highlight i just want to  out i have a young man who is eighteen years old he did not shoot a gun he didn't seriously injure anyone he currently has a seven hundred seventy one month sentence which in the end is a life sentence i would point out that even with a good time and that sixty four plus years he has to do he will do fifty four years in prison currently at the age of nineteen and a half as we know i sixty four years is a life expectancy to a inmate in the federal system was highlighted in the brief so in essence this gentleman is serving a life sentence folks i would point out that number one issue that i highlighted in here has to do with the consecutive running of the nine twenty four c's in the robbery of the couple and i would point out that this is the same act i would point out that it was current at the same time the victims were laid on the ground at the same time their keys were taken and all points in time they were together so my argument is this is these are not separate predi offenses this is one predicate offense and then therefore there should have been one nine twenty four c we have to focus on the fact that there were individual and separate victim separate  victim and that with an act against the victim well and i think about it in an example if there were four couples that had left a bar or restaurant and they were approached and they'd all driven there together and they were all rubbed at the same time and they were all their vehicles were taken we would have seven twenty five year nine twenty four seas and one seven year nine twenty four seas for a total and i was an english major so i'm going to add that up one hundred eighty two years just in mandatory time on the gun charges and then it seemed to be a reasonable sentence absolutely not in this case there is no question the couple was approached as they walked together they had driven separately but for the fact that they are driven separately there wouldn't even be a question i would think but maybe there would be maybe the u s attorneys would feel still that these are separate predicate offenses but in my argument to you that i knew he was convicted for stealing for carjacking both cars right it is correct he was convicted for stealing the car from a young lady's e n and from a year or from a young lady g b and a young man z and they were a couple together who were going out that evening and they were just going going to go their separate ways t there are two cars there are two vehicles that were taken it can be argued that there was really one carjacking in that they were together they had separate cars however  were both again at the same time and judge going highlighted that no question this was at the same time but she made the determination that just because there were two victims i now have to impose two nine twenty four  and we could have two punishments for two homicides right so i don't know how this case is different there are separate offenses or double jeopardy purposes your honor and i understand that point finley and it was a really great great point and i know that case involved drug trafficking or drug possession but but the point was not in twenty four sees does not clearly manifest an intention to punish a defendant twice for  continuous possession of a firearm in furthermore of simultaneous predicate offenses consisting of virtually the same conduct in the legislative history and that indicates that each time you choose to pick up a  god and do and do an act you should be punished and in this case it was all the same act my client picked up their gun and basically held them at gunpoint and got their vehicles so there is no question that  these two individuals were robbed all right but i would highlight that it should not be two thousand and twenty four c's this was a is one separate predicate offense  the court did rely on chapman and i believe chapman just talks about statutorily that now in twenty four cities are to be run consecutive not concurrent but in this case there should other than this case then being said i would also like to point out another issue obviously then i think is very important to my client is we're having an argument these days over whether  therefore this charge crime carjacking and i know to a layman you say well that's impossible but here what we have to just follow the law in this is strictly statutory how do you deal with the with the analogous case with the robbery statute where you have very similar language in the court has said that intimidation is does satisfy the elements cla not as a main principle and for the life of me have looked at all the evidence in the light most favorable to the government i just don't see it i don't see how the government get pissed large things that i'm sorry which carjacking he's only convicted of want refresh they prove beyond a reasonable doubt to overcome their burke if you look what they have to do what they have to prove i'm out of work with the element you're for me with the elements but he has to encourage things of that nature he said absolutely nothing and this argument kind of goes along with my second and third argument for for being all the evidence that came into my penis should have never commit but i'm jumping ahead a little but the same thing goes with one twenty four s e that it was absolutely no evidence whatsoever that my climbing curch were assisted in the commission of the nine twenty four c none whatsoever i think the testimony is clear the co defends a testify they both said that there was no discussion whatsoever and once if there was a discussion i don't remember what was said so again i'm reserving three minutes because i want to hear from the governor what it was that they said to overcome that because the record is clear and i pointed out  four before they should have never come in with all the motion to exclude a large part of what they want the government to introduce and the court allowed to introduce evidence that i felt was highly prejudicial dealing with you just said your honor allegedly there was a shooting the night before in augusta the to the gang stuff that it should have never commit in my opinion because this is a case where it didn't involve kings the victims were gang members and they got the judge didn't let the shooting in oh yeah it came  shooting the night before yes it came in so this is what i have this is with the testimony that we were we felt highly prejudicial the court was allowed to kill it it could have had to testify that the night before they went out and rode around  and that's why we objected strongly to the gang language that came out because you mention the word gang we all know exactly what it means to a jury nothing positive about that came out and i could see it typically  when people were church all the court allows the u s attorneys to bring that forward by testimony it's because there's an affiliation the victims are gang members there was a something had to do with getting in this case there was absolutely none whatsoever none nothing is in the back seat two individuals both on a commuter carjack how does that overcome the burden of they must prove beyond a reasonable doubt that he ate into bed with those individuals without nothing else and that because i'm telling that was absolutely nothing else would that have been a fair picture for the jury that's what happened that's what he was charged with he was only charged with that he was only charged with that but there was background to it but i think you have to do the bell instead this is it it is it was a prejudicial to a lot of the gaining something that occurred hours was that my client provided the guns to those individuals in the opening statement i know it's not evidence but that was that was their promise and that's how they're going to get around that the ending in a betting if my client would have provided the guns to those individuals i can see that but clearly that's not what happened here all four had their own weapons my client to now provide or assisted in any way whatsoever whatsoever to them possessing those weapons and you know i talked also with the prejudicial value i mean you'll given numerous number stand statements prior to that he was all over the park sometimes something happens sometimes didn't happen as a benefit right before trial to the charges had to be dismissed because he clearly told the government my guy was not mr palmer was not involved in this case you think it's them jumped out and then the others got in the front seat and then they followed the car and then they all got in the car after and searched it prevail you bulls and then use the you know when driving away in the car i would  it's what did you do what mere presence at a crime i would argue would he has to do something else she has to do something else he has to have some knowledge to do those individuals were going to do what they did and there is none here in that testimony that you client participated in a discussion about the need to carjack a second car in order to get rid of so they could have a second car so the other gang members that rival gang wouldn't kno to testify that there was a discussion but he didn't remember what was what was said what you're talking about early on before the shooting but i'm talking as far as the this case is concerned a carjacking that's what he testified  individual i was referring to the codefendant was really shaky he testified at the very end and he cleared my client of all the wrongdoing said the one who was convicted off but yet the jury here numerous numerous evidence it was highly prejudicial we don't know what was said i just i'm just i just don't we don't know what was said we really don't know we don't know what was said because the other could offend deny making that statement and this individual i wrote exactly what he said and my brief but real quick i want to get to the time twenty four see i don't by the color things of that nature and that's why the my it's very important can't get convicted of this offense unless you have intimidation plus and there's enough so that the jury could reasonably in vague and i think that we're not talking about the clothes we're trying but the elements while the one of the elements as you know is intimidation so the question is can you can you be convicted of a crime ok that doesn't require your force or threat of violen context of this particular statute the image the the intimidation has to be such and the circumstances have to be such because of the introductory language unless i'm mistaken to the to the offense that if the person hadn't let you have the car that person would have been either killed or injured or nothing well i don't think you can be convicted of this statute if nothing sure you took the car i'm sorry would be i don't know that each case is different what i'm what i'm concerned what i'm arguing to the court is certainly you could just by your presence by your presence and having a gun i can't by intimidation i get once again just the size without seeing a hoarder doing anything you tell me you could be convicted of this century that your argument and i'm not and i'm sorry that i don't follow you that's why i spoke its first of all having displaying the gun you see just by having a gun in taking the car displaying a gun is a threat offense without satisfying the elements i would say is not is this offense i'm telling you that you can be convicted and you can be convicted of this offense without the force ok or threat of physical force simply going to mitigation and intimidation it's a twenty to fifty five of the eastern virginia i'm under the my case i'm sorry say that is a residual clause i don't think that the elements ok i just want to bring to the court good morning may it please the court mathew call for the government the government presented sufficient evidence at trial to sustain the convictions as to both defendants and specifically for mr palmer as it related to the carjacking on july twenty fifth the testimony a trial relating to that account specifically provided the defendant was out in a car with three other individuals they had stolen one car they'd taken some shots of a rival gang member and once they had done that they realized that the car that they were in was hot and they needed to go get another car and that's exactly what they did in the testimony at trial was that defendant palmer was involved in those discussions  cited the sections of that discussion in our brief i believe it was at page id twenty four a one twenty four zero two and that discussion came with the background of mr palmer's position he was a leader within this heartless felons group in calvin rember testified that because of that he had more power more authority and more control and that was it page twenty three eighty five who would would you just go back and  flesh out the conversation with the palmer that indicated his act culpable participation in mr robert testified he couldn't remember the exact words that were used but they all agreed we were going to go get another car and that was the general nature of the discussion in the car after they had engaged in the first shooting also after the first shooting at the rival gang members they went back to an individual's house mr  inside because he needed more bullets and he asked the other three individuals does anyone else need more ammo to do do it if you need more bullets and rember to ask for more ammo jackson and taylor did not so that shows he knew that they were going to go out and commit other violent acts and on top of that he knew that taylor jackson and rember also possessed firearms when they were going to do that they went out to another side of the city to the treatment area and they looked around and when jackson spotted a victim he pulled over he got out and they had all agreed we're going to go steal another car they didn't get out with a screwdriver to try and jimmy the lock they didn't get out with a rock to break through the window to steal the car taylor in jackson got out with guns and after that happened palmer and rembert were in the back seat and palmer gave rembert instruction get into the front seat i didn't tell him get in the front seat let's get out of here get in the front seat and they waited they were the get away drivers for jackson and for taylor in case something went wrong with that carjacking and that's aiding and abetting they knew what those guys were going out there to do and they sat in the background and waited to provide assistance that's aiding and abetting the carjacking and since palmer had advance knowledge that taylor and jackson had firearms and he was involved in the underlying offense that's aiding and abetting the nine twenty four c under rosemont so we believe there was sufficient evidence to support the carjacking palmers conviction on the july twenty fifth carjacking of the g m c denali and when you add in his conduct after the fact they go back they shar the proceeds they use the credit card together and even when mr palmer was finally arrested his statement to the police was not i didn't have anything to do with it his statement was no one's going to say they saw my face which is an interesting statement because i'm not sure if it comes through in the record but palmer had a number of tattoos and had a fairly distinctive appearance but what it really shows is that his role in this case was more of a leader he was giving instructions to the underlings he had power authority and control he gave instructions to jackson and to taylor and they carried them out so he participated in this carjacking and there was sufficient evidence to convict him of it evidence regarding the shooting that occurred it wasn't the night before the shooting was the same night the shooting was earlier in the evening maybe it did curio over midnight so technically it was the previous day but this was all part of one one instance one episode and it went to the motive for committing the carjacking on july twenty fifth earlier in the testimonies not clear hours rembert testified that they had gone out that night they had gone to a party and then as they were driving around after that they stopped at a gas station and then when they were driving through the neighborhood they saw members of a rival gang and they shot at them immediately after that they realized their car was hot and they needed to get a new one and that's what they did so we're not talking about a significant break in time judge gone in evaluating this evidence found both that it was admissible for motive under rule for a for b which is entirely proper and also that this evidence was inexplicably intertwined with evidence of the car jacking in that seat in record seventy four per order evaluating pat and i would point out mr surat claims that this was significantly prejudicial but really when you look at the way the government argued this evidence the government argued it surely for most it the government was very careful when addressing this evidence in closing argument to limit its argument to motive and so why should if there was any error was harmless because of the limiting instruction that the court  on pages twenty seven fifty five to fifty six in the government's argument that this evidence was properly focused on the motive and that was it pages twenty six eighty one to twenty six eighty two switching bases now to the nine twenty four c count first going to the crime of violence issue whether or not carjacking is a crime of violence for nine twenty four c obviously to my it changes the argument that we initially made in our brief in our brief we cited to taylor which published case out of this circuit that squarely addressed this issue since that time since we filed our brief to my has come out this court doesn't need to specifically address the constitutionality of nine twenty four c three b because under ny twenty four c three eighty the use of force clause carjacking clearly qualifies carjacking must be done with the intent to cause death or serious bodily harm and be must be done with force and violence or by intimidation and they focus on the intimidation portion of that is being potentially problematic but every circuit court that has addressed that and we cited three of them in our rule twenty eight jail letters i believe was evans jones and cregg has said that under nine twenty four c three a intimidation is merely the threat of force and violence and that's consistent with what this court has said in the bank robbery context bank robbery under twenty one thirteen a is a divisible statute but one way to violate that is to act with force and violence or by intimidation and this court held both in mcbride which was a career offender case but it was later made a political statutorily in the henry case that acting by force and violence and by intimidation is a crime of violence it is a use of force and so under nine twenty four c three a carjacking which has the exact same language as that portion of the bank robbery statute can't be distinguished so we believe that carjacking convictions  consecutive nine twenty four c convictions he's asking this court to adopt an episode or an occasion test in this court consider doing that and chapman what defendant let me just read that as a matter of statutory interpretation we hold that the simultaneous violation of federal conspiracy statutes cannot support two nine twenty four c charges on the sole basis of one fire not familiar with that case your honor we don't have two separate conspiracy statutes here we have separate predicate crimes of violence they were committed at the same time but they were still separate predicate crimes of violence mr jackson is not making a multiplicity argument here he's not arguing that he should have only been charged with one carjacking there were two victims they were trying in our state but we're talking about he's arguing there's only there should only be one hundred twenty four c conviction because there was only one gun and one event in some of the cases talk about the choice not to commit the underlying crime but the choice to used to use the gun to commit a crime using the gun and that it's fine you know if it's one gun and you're doing things sequentially because you're making these sequential choices distinct choices but there's only one conviction when you commit to offenses at the same time with one gun to a few responses to that first off there were two guns the other individual who got out of the car did have a firearm on him as well so there were two guns was he convicted of respect to that gun tiller did not go to trial he ultimately entered a guilty plea to me taylor was  of of to nine twenty four's with respect to two different guns he was convicted of two nine twenty four seats your honor yes for the two carjackings on july twenty sixth the carjackings were counts six and ten jackson was convicted of the firearms counts the one thousand and four season under seven and eleven now i think i think you're not really focusing on focusing on the victim in the this or the act and and she's asking you about the quantitative number of weapons jackson had because that case is he's talking about the whole that if there was only one act of use carry  the number of underlying predicate crimes of violence that are committed not the number of firearms does it talk about time parameters in those cases you will in the chapman case it did was your memory or your advice here is this was really one of that i mean bank tellers the bank teller that's the one transaction the argument that that happened sequentially it was all part of the same occurrence though it was but that's that's occurrence writ large you know that sort of the criminal episode we're talking about committing the offenses and i agree with you on that well i'm asking you about committing the offense and simultaneously that's what it like you to focus on when you have one gun and you're committing it simultaneously the the defendant didn't have to commit to carjacking they didn't need to take two cars from two victims they committed to predicate acts at the same time with one firearm i can't dispute that this was part of the same encounter the same instance was he convicted i'm curious about the second one the one that he did was he what was the nature of of the nine twenty four c conviction was it aiding and abetting was each is that what he was charged with yes and i don't have the indictment here i think both of the fire arm counts charged either as a principal or under section two obviously he was possessing one gun and he was aiding and abetting the other individual taylor at the time he was doing it the were these were two individuals acting in concert at the same time so by holding a gun over one of the victims while his codefendant was holding a gun over the other victim the reading the betting each other they're providing support to each other while committing these two carjackings it's easier for two people to carjack two people than for one person to do it so he's obviously aiding and abetting him but by providing backup to him was was the jury instructed it that if you find that he aided or abetted taylor in possessing the other firearm then you can find him guilty or or was this sort of he possessed a gun and he's convicted of two carjackings and therefore there are two because i don't recall the specific instruction on that count your honor i know that a rosemont instruction was given but i don't recall if that specific instruction was given four for those two counts but i would simply argue that under the same theory that this court rejected in chapman a defendant took a firearm unloaded it for four times into a residence there were four counts of aggravated assault with a firearm in a different four counts of attempted murder in eight of racketeering eight nine twenty four c counts and those eight nine twenty four c counts were found in yes it's unpublished but it relied on the same theory is this court found in burnett that one episode is what matters it is not what matters it's the number of underlying violent crimes that are associated with the activity and so multiple nine twenty four sees all the cases that mr jackson site on primarily in the finley case which he pointed out directly deal with instances where there were multiplicity problems in the indictment single drug possession counts that were improperly split into two counts drugs that were found in the defendant's car we get a search warrant they go into the house the government charges possession of the gun in the car and the drugs in the car and one drugs in the house in guns in the house is another of this chord in an  time it's seen that type of fact pattern says no that's really only one underlying predicate act and therefore you can only have one section one twenty four c relying on it here unquestionably we have two separate victims of two separate carjackings there are two separate predicates the possession of the firearm and aiding and abetting his codefendant at the same time is a separate predicate act that can support a separate section one twenty four  conviction and so we would ask the court to find that a consecutive nine twenty four c four both of the two carjackings that occurred on july twenty sixth be affirmed because the unmistakable language in section one twenty four c is that consecutive sentences must be imposed jackson's argument is really trying to bootstrap a concept from the army career criminal act internet in twenty c three in the arm career criminal act we've got to prove that previous convictions were committed on occasions different from one another that's the language straight out of one thousand and forty one there is no such language in nine twenty four in the fact that congress included it in one section but not in the other should be read somewhat as a statement of congressional intent if they wanted to have a separate occasion concept to put people in section one twenty four  three they could have included such language for me earth under nine twenty four in the statute if the court that there are these separate distinct albeit related  are any discretion in the language of mind twenty fourth see that allows concurrency for any reason or is it is it seven plus twenty five plus twenty five twenty i don't believe there is any such discretion for that you honor and i'm trying to find the specific case slipped out of my mind but the supreme court essentially addressed that in deal versus united states where there is no such discretion so we don't believe that the court would have discretion in that instance thank you i think there are no other questions i would rely on my brief for the remaining arguments if you thank you very much carjacking the clause is there's two clauses force and violence or intimidation and we don't know what the jury relied on whether they relied on force and violence or do they rely on intimidation i think that's one of the problems that courts of had and why they feel it's unconstitutionally vague what the jury relied on we don't know we don't feel think carjacking should be a crime of violence as it is situated today and clearly the legislature and i'm sure mr call fine attorney and the u s attorney's office will certainly go to congress to change the makeup potentially of carjacking but i would highlight that intimidation we don't know you could have as ladies and gentlemen as  we can have without right of the use of force we could have intimidation i mean intimidation is basically someone who has a feeling that they are being intimidated but it's not the actual still has not been met it's constitutionally vague and i would ask that we find here today that carjacking as it's written today should not be a crime of violence thank you very much thank  they stole a car ok and and so what did the prove after that what did the the government prove after that to make sure my client knew should of known or assisted to the carjacking do you only have to go defense testified specifically as to one mr taylor did you robbed him yes prior to robbing him was there any discussion at all about that no that was his testimony keep in mind he specifically asked of de jure rob anybody know they chew carjack anybody know now this is the individual has a testify against my client again he was specifically asked about the discussions because the government needed something they didn't have any they had a tide in and he was this was there and it was there any conversation i can remember it was so long ago that's what he said that's when the transcript ok and then they're going to argue but they knew what they were going to do won't maybe they're going to do what they did hours before just steal a car that's what they did in carjacked they just stole a car and that's one of the sufficiency i know it's a it's a very difficult argument to make but in this case if you really look deep in the heart in i think there's there's merit to it and he talked about the motive well the argue the motive at the end were everything ran i think change initially are you with my client provided the guns there goes out the window that didn't happen they said it was a conversation they had didn't happen so then they argue the mood of the night before the gangs and that kind of stuff and i really think if you look deeply into this case as far as what came out of there miles it could have found is because that's all they have all the other with this is the twenty seven of them said absolutely nothing to hurt my client nothing at all ok and what came up is what i just told you that is the only testimony regarding conversations of the head there was about to transpire that evening thank you very much believe you were both appointed under the criminal justice that occurred thank you both very much we appreciate