we will start with united states versus ke north ok thank you so first i would like to start with issue number one that count one should be vacated because arson is not a crime of violence arson under the holding that we're holding that issue are we for the supreme court's decision and to my own yes your honour's for that you can argue but we probably will not decide pending that decision ok so then i'll move on to issue number two if that's ok so mr ventura respectfully request that the court vacate count one four and five based on the violation of nine twenty four c the ex post facto clauses mr ventura was convicted on those counts based on and on that he was the firearm that he was using or was being used was in furtherance of the crime but those are the crime in one nine hundred ninety eight was amended to have that exact four and five or five or two and three i'm sorry count two and three that is the at the murder for hire counts correct those are the only counts that require the mandatory life sentence that is that is correct and respectfully the district court arrid by giving a full a wrong jury instruction in order for the defendant to have been convicted for the life count the judge should have decided to hold that the firearm and the murder was if death results they left out if death results in the jury charge but then the judge said in his sentencing that he could draw that inference because of the convictions on the gun counts tell me why he was wrong he was wrong because the gun counts were could be separate and distinct from the  murder for hire him commuted the gun counts without death resulting he could have i mean to that does the statutory language of the charge to the jury allow them to convict on the gun counts without death resulting ye honors so that where does the death resulted where does on what basis does he find it in the can in the jury verdict to impose life i believe that the the judge took a leap first do you think he was a legitimately because the if that's results language is an element of the offense i don't believe that we had a special verdict so i think that the judge charged that they had to find that that is correct and so why isn't it out right on its face a violation of away apprentice and all i am of the judge sees it that way we would concur you argue that it is not harmless because it did mandatory life count if that results and in this case that it did judge by sentencing him to the multiple life counts by using the other counts that he was convicted on to get there without a special verdict form i believe that that was doubt that sarah and this judge who we know is a very fine judge said that he didn't have a choice he might have had a choice if it wasn't mandated so we know it's not harmless correct the judge slow it's certainly not harmless no the judge said i didn't have a choice in this so i'm doing it but if he had a choice he might have done something else is that correct that is correct yes it would be the mandatory minimum if if death didn't result in ten years on each count heard concluding that us eighteen u s c nine twenty four j incorporates the mandatory minimum sentences of nine twenty four c i know the court in two thousand and fourteen and young held that it can and other circuit courts also did however the eleventh circuit states that you know for any term of years or life so because we hold that there is a mandatory minimum on in one thousand and four see and say that we did one twenty four  j would have a mandatory minimum it goes against what the what congress intended where they say for any terms or for life for any term of years so any term of years would not be a mandatory minimum so i would respectfully request that the court reconsider that issue are you still pursuing the rosemont issue yes your hon take the record as you find it now yes all right thank you much we'll hear from our own hear from the government the eighth circuit yes but no special interest guitar was given there either but in that case the judge charged deaths resulted so it doesn't really prove your point does it  well the argument that we make in reliance on hiles is that the reasoning of the eighth circuit decision supports the reasoning that we're advancing here and the reasoning is this what the jury was instructed with respect to the nine twenty four j counts was among other things that the defendant's conduct have to quote cause the death of a person and that's what made it a nine twenty four j count as opposed to just a straightforward one twenty four c doesn't have to be achieved it's the intent to cause the deaths but death doesn't have to results on the nine twenty four and that's the difference that it is not correct your honor for an for a nine twenty four j count death has to be caused in other words one twenty four j requires is that the government prove beyond a reasonable doubt that in the course of committing a violation of one twenty four c the defendant's conduct causes the death of a person and that is why a violation of one twenty four j exposes a defendant among other things to the death penalty which would not be the case if it were simply about the defendant's intent if it were possible for one twenty four j violation it's not a mandatory minimum however right not as  concerned about life he said i don't have a choice because of this and yet there was this special verdict that told him that the jury found that death resulted from the murder for hire conspiracy it what we would argue is that the complete set of jury findings establish that death resulted from venter his conduct to the guilty verdict on the nine twenty four jury that's correct your honor so which is to is that mr ventura was guilty of arranging for the hitman to go out and engage in the conduct that van as the jury found with respect to the one twenty four j counts caused those victims deaths and so as as laid out in the jury's findings established beyond any doubt that the conduct that mr ventura engaged in arranging for for hit men to go to a thirty four of a guard is place and shoot and kill eugene garrido that that conduct as the jury's verdict in the one twenty four c counts of stablish caused the death of the two individuals pen's own that have the minimum life sentence attached to them is that correct that is true your honor so that in order to  impose the minimum life sentence which the judge did i'm happily as i read this suggested script he had to take the finding from one count and apply it to another count do we ordinarily do that i think you do your honor i think i find a case that says that this is an approved procedure you don't cite in your brief and i spend days looking for a case that says you can use a finding from one town and apply it to another camp that has a mandatory minimum and the case that you cited highlands does not stand for that proposition and in that case in any event they were instructed that death had a result even though they didn't get a special verdict unlike in this case where they were not instructed the death had a result from the murder for hire from the from the two counts here i would just i would suggest separating two different issues one issue is the jury being instructor not are not being instructed as they were instructed in this case as to an element or what we would say is an element of an offense and then the second question is what are the sentences or what are the sentencing consequences that would flow from a conviction as to a particular offense and so our first point is that it is it is it is true that judge total did not instruct the jury as to an element of the count as to reset the death had to result what triggers th minimum life sentence that's what make that's correct and that's what makes them murder for hire conspiracy count and substantive counts counts that produce either the death penalty or in this case mandatory life sentences now the count charge death resulting and what we what we suggest in our briefing is that the other charges the one thousand four g charges did instruct the jury that they had to find the death resulting and so what we're talking about here is setting aside the sentencing consequences of having been convicted of a murder for hire count with the element of death resulting it's it's a plane error in the sense that yes your honor that would be our position it's plain air because there was no objection the way the way at least i would understand it is that as a general matter the all parties and ever to respect the secrecy of jury deliberations in a special verdict is an exception to that rule it is to some extent an intrusion into the jury's deliberations so we find ourselves now where we're not certain that they found a particular element and this element is very important because that's the one that brings life imprisonment it is an important element your honor we would disagree that there is any uncertainty of life imprisonment is not mandated for the other counts in which they found that death resulted from the use of the god life imprisonment does not mandate from those is that it is not but death resulting is a required element for one twenty four j the jury found that under the supreme court's decision a nadir when a quote in omitted element is uncontested and supported by overwhelming evidence and iranian instruction or failure in that case of the materiality instruction here the element is death about it that he said in the sentencing colloquy said i have had a special verdict and i may ask briefing on that subject and we wind up doing what you say is it's standard operating procedure to take information from one count and apply it to his sentencing in another county is that typically done yes i would take find a case that says that that's how we work i think i think nader takes it even further what the supreme court nater said was even if there isn't a jury verdict as to that particular element if the evidence as to that omitted element in a jury instruction is uncontested and supported by overwhelming evidence is appropriate for the court to treat that as harmless error and here it's not ventura as to the one twenty four j counts related to those individuals deaths the jury then also found that mr ventura was guilty of hiring those hit men who the jury separately found had committed caused those victims deaths and so this is  that says that that's the way judges can or should satins do you know such a case well i would say again i would say that nature earth is different i mean this is different this is sort of work from one case from one account to another account and i think what nader would establish for purposes of this case is that if there were no nine twenty four j counts the court could still find the failure to instruct on death resulting harmless error because the evidence again was uncontested and and overwhelming  the risk of force clause is constitutional but i understand the court is waiting for the decision to my what i what i what i would suggest however is that putting to myatt to the side and assuming argue endo that  find the risk of force clause a constitutional which we don't think it should but assuming that it did we would still argue i think the court could still hold that the arson underlying which is one of the two predicates underlying the nine twenty four j conviction montanus should still be affirmed here and there are a couple of very quick reasons that just flag there laid out in the government's briefing but just to just to raise them now one is because under the elements test so putting aside the risk of force standard under the elements tests the government's position that arson is a crime of violence mr ventura makes the argument that an arson could be committed entirely recklessly we disagree we think that to set a fire or use an explosive there has to be some intent and some intent to see that fire or to use that explosive and what an individual can be reckless toward is the destruction or damage of property and so once there is that intent within the use of the fire the explosive were no longer in the area of leo cal and some of the cases that mr murray below cites in his briefing and that is why under the elements clause putting aside the risk of force closet issue into maya the arson construct in this case it was properly treated as a crime of violence and at a minimum there is no plan or as to that and then second just very briefly there also was an underlying predicate of a drug trafficking crime and the evidence made very clear that the arson was carried out in order to advance the interests of a drug trafficking conspiracy that all the other participants apart from mr ventura were linked in some way to mr ventura at trial was not in any way suggesting that he participated in this arson murder for some reason unrelated to the drug trafficking crime his argument a trial was that he was not involved and so the jury found that he was involved and the fact that the drug trafficking crime under lied the the arson felony murder of no montanus is again another fact that cannot really be controverted mr minturn and try to controvert that at trial so even if arson should not have been treated as a and the best of my knowledge at this point there was no objection so it's plain are correct but there was at the sentencing not a during that not during the trial before the verdict but i'd said it was not any objection to the charge that went to the jury not no one requested a right i don't believe that's in the record your honor sorry that is not in the record i can look at it again but i don't know that the required exception the exception by the federal rules was