it please the court my name is josh howard i'm from raleigh north carolina and i am privileged to have been appointed to represent carlos benson in this consolidated criminal appeal my colleague jeff gillette from franklin north carolina represents jacob hill and we have melted four arguments that you have seen in brief i would like to address one of them and then mr gillette would address the other three the one that i would like to address is the only one that would stand if if our claims are granted to merit  trial mr gillette's will focus on the primarily the sentencing issues that arose from the penalties imposed in this case our argument is mainly about exhibit exhibit eleven d as you have seen in the brace this photograph of the crime scene which showed a bloody head wound and that the victim killed on the spot on the asphalt of a parking lot had been excluded by the trial judge from evidence during the course of the electronic presentation of evidence in that western district north carolina trial the image was accidentally flashed before the jury the judge gave a curate of instruction and ever old the both of tenets mistrial motions through the course of then four more witnesses one hundred pages of trial transcript juror number six wrote a note to the court and that the note explained that she had had a basically a friend who had committed a suicide by gunshot wound to the head that seeing that photograph even briefly had very much that stirred her and that she was unable to focus on the presentation of evidence again the defendants moved for mistrial the judge declined that and gave again a curate of instruction to juror number six that he also suggests or allow you all to consider excusing her altogether he did your honor and that's part of the government's waiver argument where they cite the robinson case in their briefs we think that is not a political here because the remedy we promptly to address the problem or the issue that was identified by juror number six so it may not have been what you wanted but why bust it enough instructions can only go so far and i think we've seen the interest juries follow we do and the government has asserted that they're absolutely correct on that point you're out of instructions have their limits and i think we've seen here in the unique fact pattern of this case  that the limits were reached because your hours i mean there's just no getting around that this was a this was a horrific crime you know that it was a murder and there were some other photos that were introduced into evidence that one could argue were just as terrible from the defense perspective so i thought isn't clear to me why this particular photo stands out among the the photos that were introduced we would suggest that the that analysis has a frailty as well because of two reasons one is substantively the difference in the photograph for instance from the very clinical clean autopsy photographs the same women's compared to the bloody shirt that was underneath and had been taken off the the the seat and for treatment on the scene my substantively different and then also i would point the court to the government's pretrial motions trying to get the exhibits admitted page one twenty seven of the joint appendix they offered those pictures for different reasons the what i call the parking lot photographs were offered by the government and in that brief for the purposes of connecting the weapon so the wounds and the crop and i'm sorry to corroborate through the parking officers were offered to corroborate the testimony of the law enforcement officers mr patterson who's one of the surviving victims the autopsy photos were according to their brief offered for a different purpose which was to connect the weapon to the winds into show that he suffered six different gunshot wounds so i think for those purposes  the purposes they were offered and also for the substance of difference the more grisly nature of the parking lot photos that analysis fails what did the judge asked the lady who was disturbed by the pictures the need to knee examine her about that a little bit he did he also curtailed the gut the defense's examination of her to some extent and beyond that they polled the jury and they had a show of hands that several of them have seen that are now what we know because the standard that applies here is whether or not there was a reasonable possibility that the jury's verdict was influenced by improper material we know this material was improper because he had excluded it and we know that that happened because she of the trial we would also point out your honor that the burden is on the government to show that this was a harmless error and innocent it's an interesting standard whether or not there is a reasonable possibility that the jury's verdict was influenced by improper material not reasonable probability as we often hear there's a possibility here we know for sure it was because she had been disturbed for at least four witnesses and roughly one hundred pages of what is now the transcript with that u  and to pick up some of the other issues as mr howard suggested i like to direct the court's attention for just a couple of minutes to i'm going to call the carjacking issue which is to whoever with the intent to cause death or serious bodily harm takes a motor vehicle has been transported shipped received interstate commerce from the person or the presence of another by force and violence or attempts to do so shall be punished those words the person in the presence of mediately remind us that what we're talking about here is a specie of robbery we're talking about robbing or stealing a car with violence or with the threat of violence and that clearly is not what was going on at this particular situation clearly was they may they took the car of violence what's missing they didn't we would allege that they argue that they didn't take the car they wanted the information in the head of the driver not the vehicle i think anybody who is following this case would understand there was no evidence before the jury that they wanted the impeller is matter of fact i don't believe anybody would have expected that they would have kept the impeller they would have dump the car at the first opportunity just not clear why that matters if someone jumps in in my car in order to kidnap me in take me somewhere to punish me for my horrible opinion in all hypothetical that you have presented is different from the case that i don't see that the purpose is not to take the car the purpose is to kidnap me the car to i just happen to be in the car oh i see so we're talking about the difference between kidnapping and carjacking you know i'm i'm trying to understand the basis can your argument that it makes some difference that the purpose w to keep the car and so for that i call your attention back to the apple with case and the harris case and the issue and apple way which i think is probably the closest parallel here is you remember in that case they were  the defendants were charged with attempting to attempting to assault the victim and after they had completed the assault then they saw a work van and said let's take this and get rid of the body and move on someplace else if those cases i think were either deceased or occurred just in the harris case the issue as it was presented there was that the decision huel the victim arose at some point after the defendant had gotten into the vehicle so i think there are it was kind of a chronology issue and i think here that's why i say here this is a better analogy to the apple weight case the vehicle was just happened to be a way to get the information out of the head of mr patterson that is to say if mr patterson had had not cooperated i believe judge now can you're absolutely right in assuming that he probably would have been the victim of actual violence but he had to be transported in order to do that where he could have been transported in any vehicle or an hour maybe not even transported he could have given the location for these the spot as they refer to it and the defendant have to be there because he was the person known to the no i hear what you're saying just not can but i believe that that woods was was their preferred plan but it certainly wasn't necessary i mean one could construct circumstances or hypotheses and wished they could have shown up waited for mr james the victim to appear and then hijacked him or kidnapped him or whatever they chose to do that the presence of mr patterson certainly made things more convenient but it was not at all necessary just maybe i misunderstood your argument i thought you were you were contesting the element of intent with respect respect to causing serious bodily harm not intent to steal the car thank you judge judy as you're exactly that's a great point because there is a case on from this circuit actually i think which which in turn are you contesting is that the intent to cause serious bodily harm or the intent to steal a car because i don't think you need to the government has to show intent to steal a car yes intent still current judge i do believe that that's a something that the government has shown intent to do and again that is the issue i'm sergeant say that the point you're trying to make is that they didn't intend to harm the victim that's what i because he was trying they were just trying to use him to get the deal or and if they didn't have the intent to commit that it was put in that particular way below it was the subject of the of the motion to dismiss all charges because of the lack of proving all elements but it was  to say into it to the way that it was presented below us specifically was that the kidnapping and carjacking merge because the focus was the kidnapping and not the carjacking i'm not highlighting that particular argument because i think that's poorly put and it's not the the argument in terms of the in terms of the motion to dismiss for substantial evidence really did cover everything that could possibly have come up i'm looking at your summary of the argument you say benson and hill both move the district court to dismiss the carjacking charge because they lack the requisite intent to cause called courts tench to my reply brief and i hope that that will be more able to clarify what the argument actually has well assuming that your argument is as she framed it in the can you briefly address it just briefly tell me what tell us what it is ok judge duncan i would characterize it this way i would say that because carjacking requires the  object of the robbery to be the cause and the object of the robbery or the object of the action was to get the information to find out where this was so they could go there and find mr ham's and then do whatever they were going to do with him but then therefore that the government had not proven that element that is that the current stealing the car was the object of the of the intention of the defen but that doesn't address her question which is ok i thought your your argument seems to be that he didn't have the intent to cause death or serious bodily injury or isn't your argument that they didn't want to hurt the guy because he knew where they could go to get the big deal or with the with all the money and all the drugs and all that stuff yes so they weren't they didn't have that intent when they took the car therefore it's not a carjacking that's your argument and then they're going do with whether they took the course would you address the question about the the life sentence that he got and the fact that he got a life sentence on other things therefore it's really kind of a moot point be glad to just give me i know that there are a number of cases well i've cited in my brief cases stand for the proposition that  that a sentence in excess of the statutory maximum is an illegal sentence i believe the government and i'm sure miss ray will elaborate on that if that's necessary i believe their argument isn't so much that  that this court can just ignore an illegal sentence but in the context of plain air which i think is where she wants to focus on that the court has the opportunity or the discretion not to notice the that some element of the kidnapping offense which created a mandatory life sentence would conceivably change and make that not a mandatory life sentence and these other  life sentences come by way of the cross reference in the guidelines and i think it would be a horrible miscarriage of justice if it could happen that the original mandatory life sentence went away but this court which has also has a strong precedent favoring the finality of judgments and prefer not to come back and revisit judgments down the road when that's not mandated by the supreme court then ended up sticking these people with life sentences that they did not have be that way the remedy is a very simple fix there are no new hearings is just simply asking the district court to go back and correct piece of paper to to issue the statutory  the district court judges just simply go back review the paperwork and assign whatever the proper sentence is i think that would be the appropriate resolution in this kind of case it unless there are any other questions then  step back thank you please the court amy ray for the united states i think i'll begin by just addressing some of the specific questions and maybe beginning judge give me with your question at the end this court in both united states versus allison united states versus foster which are cited in my brief tell us that a defendant cannot show that an error or even imposing a sentence above a statutory maximum affected is substantial rights where there are  ignore it that that authority and with all due respect i don't i don't think it probably can but if it could on remain and it would just be and she have many judgment not under the authority of the crack amendment cases that i think mr chillout was referring to but just generally if the district court chose a life sentence then this court would presume that it could just reduce that sentence to the ten year statutory maximum of ten years but again i don't think that's the appropriate result now  let's go back to mr howard's argument about exhibit eleven i want to begin because i don't believe the jury just record every excluded eleven d if you look at the pages that mr howard refers to you know which are pages one twenty four and four thirty three of the joint appendix the united states offered eleven easy and it offered a series of exhibits it never actually offered eleven and the court didn't exclude that when what the court was correct absolutely but i just want to be clear that that that decision had not been made the court notes that it would have found it miscible although i don't know that that's legally relevant to the question of whether it was prejudicial but it never excluded that that it excluded two different photograph where in the whole body of mr hames was on the ground post post the event and on you know outside of the car and excluded that photograph but that was different from eleven now the question is whether or not the united states has shown that the very brief display an inadvertent display of eleven de prejudiced the defendants and for all of the reasons that were reflected by the court's questions but just very very briefly the evidence of the their guilt was overwhelming it's based on eyewitness testimony and the very similar photographs in twenty four k exhibit twenty four k was gave appropriate instruction to the jury to disregard eleven d and its entirety and there's really no evidence that even juror six was affected that her judgment as to the guilt or innocence of these defendants was affected which is best evidence by the fact that they decided not to exclude her when they just record gave them the opportunity at the close of all of the evidence and before that yuri began deliberating so the united states has satisfied its burden to show that that mistake was harmless on the carjacking there is no support whatsoever that i first seen not that argument was not presented to th  that is united states versus robinson's two thousand and seventeen decision by this court where a judge wilkinson recognizes that look the jury could have perhaps drawn the inference that they intended to get patterson a live and well and able bodied to the windsor hill apartments and therefore at the time that they took the car they had no intent to injure or to kill him if he did not comply maybe the jury could have drawn that inference but the jury could also properly infer that they absolutely would have injured him seriously or killed him and mr chill out really give makes the point that it's possible that once they got the information they would have gone without him affected the same robbery or that they would have just been so angry they would have shot and killed him the two defendants were clearly capable of great violence that day they also could a simple e maimed him shot him in the leg shot him somewhere else and or whacked him upside the head pistol whipped him a little bit that would have been serious bodily injury and they could have a achieve the objective they say that is clear from the evidence but obviously the jury doesn't have to accept their theory of what the defendants had in their mind about what their what they would or would not have done based on this evidence you have two defendants who have have pointed a firearm directly at the head of this the patterson they've kept it trained on him as they ordered him into the car and they told him that if he did not do what they wanted they would kill him so i think the jury could recently infer that they had the intent at the time they took the car and that's the only time that actually matters for purposes of the carjacking offense i think i should also address quickly the nine twenty four c and nine twenty four j issue and one of the reasons i should do that is because i don't think i did a very  i didn't think i did a terrific job in the brief on a couple of points one of them is that hill actually did not receive a consecutive sentence for nine twenty four j if the court looks at his judgment which  is on page two thousand and fifty six of the joint appendix that judgment for whatever reason the district court actually imposed the nine twenty four j life sentence to run concurrently with the kidnapping kidnapping concerned conspiracy carjacking offenses i'm not sure why the court did that we didn't appeal it so he did not receive under any circumstances an unlawful sentence in terms of double jeopardy found every single one of those predicates supported both the nine twenty four c and the nine twenty four j another words we have multiple predicates supporting each of those offenses so there would be no error imposing a sentence on both the nine twenty four c and the one twenty four j because they would be supported by different offenses under block burger now other words you've got the drug trafficking offenses you've got kidnapping you've got carjacking and you've got hobbs act robbery all of those supporting them so you couldn't impose one for for example the drug trafficking offense nine twenty four c and you could do nine hundred forty to support the  was the image that the judge specifically excluded that series of pictures characterized by eleven the number eleven were all taken on the scene at the scene after emergency medical responders had performed some life hopefully they would have said life saving measures and in the process of doing that they did in fact change the position in the location and maybe introduce trauma to the victim although the judge said later on well maybe i would have admitted it i think that that probably he would have used the same analysis that he did with the levante case and saying that that image was a little bit more grisly then maybe it would otherwise have been because of the extraordinary measures that the merchants the medical people had taken and so i believe that offense issue it's not a question of whether or how mr hill or mr benson was or sentence for nine twenty four jay that's the greater of fans the lesser included offenses nine twenty opinion the only circuit that could conceivably be said to go in a different direction is the eleventh and the issue of double jeopardy was not presented to the eleventh circuit the issue in that particular case was whether one twenty four j was a sentencing factor as the government in that case presented it and the eleventh circuit said no nine twenty four c is one kind of offense and nine twenty four j is another kind of fans the eleventh circuit was correct they are two separate offenses however what the eleventh circuit did not deal with what every other circuit has considered the issue has said is that nine twenty four c is a lesser included that is to say  the greater that but miss ray has pointed out that the jury was given a series of different factual predicates these offenses and so you don't have the same set of facts tied into the the offense so how can you say that it's a lesser included offense you've got different factual predicates so my recollection of the jury record i do not have it in front of me right now is that they were given a list of predicates but they were asked to choose which was in the jury verdict so it's impossible to tell what predicate basis they entered judgment or that they they create came back with a verdict in those particular cases where i guess for lack of a better way to phrase  intent to impose violence only we only sent it to the jury if there are facts that would support the intent to the you know the intent to do violence i think in this particular case it was clear that there was no fact that the jury could look at to say that they were intending to you know to to harm and thereby give up the opportunity to find m hames and to affect their robbery of him and therefore we'd say that there wasn't enough evidence to submit to the jury it should not have been a jury issue it wasn't fact a matter of law it was properly brought to the judge in the that you are mr howard a court appointed thank you very much for your service to the court i'll ask the courtroom deputy to intern court for the day and we will come down in