your morning our final case for today is charles kevin simpson versus the u s attorney general case number nine eleven thousand one hundred and fifty six mr bell's before we begin i want to thank you on behalf of the court for taking this case through a court appointment will be have mr simpson i know that we really appreciate your service and i know mr simpson duns as well is as was just argued in the supreme court miss chavez versus barr i'm in november and i don't know that the jurisdictional issues going to be on the table there but you know you we don't know but that case is up in the supreme court and they will be addressing the effect the effect of a defect in the notice to appear so i'm not going to address that because this court has already ruled that the defect is not jurisdictional i want to go straight i wanted to start off with a hypothetical if the court would indulge me because i think it at least it's helpful to me it might have been helpful to the court but i think it's helpful to me to explain in explaining why this statute is clearly in  the place locked into a situation they see a bunch of bags they're full of weapons all different kinds of weapons you've got firearms you've got you've got ammunition devices you've got electric  weapons of all different shapes and sizes and there's an issue as to whether the person is about to be arrested they're arrested there's going to be an issue a trial as to possession and because the weapons were in different places in different bags and so possessions going to be an issue but you've got all different kinds of weapons now under the statute the prosecutor does not have to pick a particular type of device the prosecutor does not have to take a firearm they're not stuck with that they don't have to because to a jury the jury does not have to agree on what device was in the possession of this convicted felon the two elements are is the person a convicted felon the nd element is where they in possession of an unlawful device and then they're instructed as to the various devices that there are these devices or alternative means of committing this offense which is essentially a felon in possession of an unlawful device but the jury doesn't have to agree you can have two jurors that they decide is a firearm or two jurors that decide that he was in possession of an electric weapon and two jurors might decide that he was only in possession of ammunition  don't have to agree as to the specific device but if the jurors agree that he was in possession of one of these and he's committed to the offense so that hypothetical and there is under the standard jury instruction  we're allowed to look at that to at least determine whether it's in the visible under the standard jury instruction the prosecutor does not have to identify whether it's going to be a firearm and  weapon is being presented to the jury now i'm not a weapons person but i can tell you i know i know that when we get it they're going to visit bill the argument there to say we can look at the facts and in the facts indictment and the other papers show that there was a shocker well i can tell you again i'm not on the weapons guy but there are electric shock and so the fact that they're shocked and doesn't really mean anything because you can have electric shock and you can have all kinds of luck to weapons so if you look at dish hypothetical and you agree with me that a prosecutor doesn't have to identify specific weapon and the jury doesn't have to agree  electric weapon or a device the prosecutor has to use one of the bracketed items and in fact in this case the information driving simpson provided devices whether we call them elements or means of course is the your ship but the government going to was obliged to lay out that it was a fire  that it was a shotgun in particular and instructions themselves required choosing from the list of three possibilities because actually have any life on whether it's divisible or in well let's go back to the instructions because the instructions do not say that you have to pick one or the other if you go down later in the instructions when you do have to pick it says game only if we could spin it is charged with this but when you go through the devices it doesn't say give only it just says give as appropriate which to me means that you can give all three of them as you get down later the instructions it tells you a restrict in giving a certain instruction only if that is what's being charged so up earlier in the standard instruction it gives the prosecutors the discretion to throw in the kitchen sink while you can hardly charge the controlled substances law if they just describe it as a controlled substance and they didn't tell you whether it was cocaine or heroin let's say but if the prosecutor had said the it was an electric weapon and in fact it was a glock nine millimeter you would have said they haven't met the element and the charge the charge require them to prove i don't back to weapon they proved o'clock nine mil you're absolutely right and what we're doing here in this discussion is we're getting into the facts of the case which is just i mean that's just natural facts well i'm a that was the indictment itself or the charge of instrument i didn't go behind the charging instrument and look at the record although maybe i could even do that if it is unclear and i needed more clarification whether it was categorical or modif or i'm just saying if indeed he had charged the wrong weapon you would be arguing they couldn't if he wasn't guilty of the crime chart it doesn't matter that he had a sho or ten trackers it was car and electric backup and you would have said that was an hour well he's charged with violating statute in the statute includes a number of different weapons including firearms including electric weapons he doesn't admit to any of this mean there's never been a jury that found that he was in possession of anything it please no contest and the problem here is the government has the burden of proof deportation counterpart and you know i don't know if you'd be light on an attorney to tell him look you're safe here because this statute has things in there that that do not subjected you to deportation and you plead no contest you have you have the right to rely on mathis which says look if these statutes don't match up you cannot be deported in the statues do not match up and the fact that they put in firearm that's still a means it's not an element of the crime us results before you finish up let me ask your question how i'm sympathetic to your position and mr simpson's argument that there are two or more cases which were decided relatively visible and then we have done the one of them is called dylan the other what it's called gandhi wanted balls that burglary statute and the other one involves the florida narcotics that you which deals with different types of narcotics your situation i know i know goody because i you know that was what i focused on and all the debates about statutes including goody all talk about the fact that the different let's say elements create separate crimes and i know i'm going to they talk about that the different elements a different location elements created separate crimes here you don't have separate crimes we side with the state yesterday this is one unit of prosecution the different that's statute has a m b a creates one crime b creates another crime you could be prosecuted for both both crimes here this is when you need a prosecution one crime with various means of being a felon in possession of an unlawful device i don't know that answers your question but you look you look at your prior cases and when you find that is divisible you find that there are these elements create separate crimes and we know i think you're on mute general your honour's respectfully this case is not about hypotheticals or raising factual situations in our mind that we can speculate on we have a clearly defined roadmap that was set forth in the supreme court decision of map this in as a strap a lead in these court this court's decisions in united states versus davis united states versus gandhi centro and verse of the attorney general and must in turn fold that road map and when you follow that road map there is really only one unequivocal decision that this court can make is that could spread to shooters conviction for felon in possession of a just really beyond that i think we can all agree that there is that facial overbred component here with regard to the application of the categorical approach i e when i say facial over breath that they are or i and others in this particular statute of conviction that are more broadly than the underlying facts the underlying federal firearm conviction here and what we have here really is the visibility test and what mathis and davis in gundy tell us is that we have the fall of the roadmap again with regard to discussions of divisibility whether or not this particular statute is the visible and i think your hon judge marcus hit the nail squarely on the proverbial head here that said this is a visible statute in that it lays out elements for purposes of being convicted of this particular crime and now the petitioners counsel goes on and on about separate crimes and its seven hundred separate crimes but i think his analysis is misplaced for the simple fact that even a gun in the georgia burglary statute have a real will car or a vehicle no it just simply said that there are separate and distinct locational elements for purposes of a conviction under the georgia burglary statute in god the and really when you look at  the particular statute here and when you go through really the analysis that's commanded by this by the supreme supreme court i'm out this in these court discourse decisions is you really have to take a look at what our statutory  that is correct your honor and you know and countless researches indicated there really nothing scores it away and i know petitioners counsel sent forth a couple twenty a j letters yesterday which i responded to citing to the bell case inciting to jones which in turn science behind state law case and i say that as i mentioned in my twenty j letters those cases are clearly distinguishable one is really a double jeopardy challenged regarding this simultaneous possession of not only a revolver but a speed loader if you know a speed loader for the purposes of that particular revolver and were not he could be convicted twice for possession of the firearm and the ammunition and in the other case with regard to this in the statutory definition is there the term quote d unquote gun there is firearm electric weapon or device and the like but nothing of a gun so even that interpretation has a hatless case which is a very limited analysis and really distinguishable from the present case so it into your question is what we do have here and i think quite clearly is the jury instructions but i think what's what really is are on is the approach here and what mapped this in davis and gun you really in shrunk this court to do is we don't just stop at the jury instructions but if i think the jury instructions provide a pretty clear answer i think his honor his or his are indicating such in his questioning on petitioner it sets forth bracketing brackets around the terms firearm any nation electric weapon or device clearly delineated in what has to be proven beyond a reasonable doubt to a jury and i and i and i and again respect i respectfully disagree with opposing counsel for his position is well you can simply charge possession of firearm in mediation a letter whatever device and satisfied with certainty with regard to what orotate of sources of state law we can take what's known as this limited peek at the documents and so if we take this limited peek at the documents and i would invite th documents but this pete that justice kagan wants us to do with these particular cases right is not about hypotheticals let's see what happened here and we have a situation usually it's not for us to question supreme court davis judge carnes himself mentions his frustration in literally saying we now go down and out always that a rabbit down this rabbit hole of this approach and i agree unfortunately i applying the this this particular approach to doing it and again when you take that old together when you follow what is the case law on the books with regard to conducting this trip this is a this visibility analysis there isn't really only one place you end up all be in a rabbit hole but there's only one place with that around the whole lanes and that rabbit hole ends as this is an all over broad statute that is in fact divisible now the case law and the standard your ear i think it's a lead biggest part to your honor and i think that's really what the supreme court says in mout this is that when looking at it when those supreme court amount is applied some examples of whether ner well i think you neglected the final step which is the peek at the documents which is what matters says right so we could if your position was if it was one hundred percent correct and we stopped after information that's what it really hits you like a two by four right it's your lead here it says firearm on equivocally and then you look that says so that he was convicted of the possession of a firearm in an  of the prohibit it i don't see in the florida statute ok and trial the truth is that he had both an electric whatever and a shotgun and the jury gets a general verdict that doesn't ask it to explain which one it found that this individual possessed ok jury returns the general verdict of guilty what happens in a case like this in the immigration setting the base the polling that hypothetical we don't have any answers that pete doesn't satisfy that level of certainty that is it so in short your honour's i mean we have a situation here where we have an overbroad statute that is the visible petitioner was convicted as being a foot felon possession possession of a firearm that a felon in possession of visible and that you can have multiple devices and you don't have to pick one and you can send it to the jury and the jury doesn't have to agree on what the device was as long as it's one of the unlawful devices he can be convicted under the  statute the case law and the standard jury instructions and i would you know i actually did go back to the standard jury instructions because i read the standard jury instructions as demonstrating that this statute is in the visible  pragmatic says ok under some circumstances you're going to go a step further and take a peek at the charging instrument and the charging instrument plainly answer the question so we have to bury deep in the ground the charging instrument and say we cannot look at it under the circumstances to discern whether or not he was found guilty a judge guilty of possessing a shot which we know would qualify correct you can't look at what you're suggesting we ought to be doing here correct judge you cannot look at the facts you just look at the statute and you look at the fact that it's indivisible it itself it was kind of interesting the way they structured the florida legislative act they spoke of they said some awful for a person to own or have in this fair custody  and then it says any and then it lists three things a firearm comma ammunition or in a destructive or an electric weapon or device and there it whether that house me decide whether the statute on its face is the visible or invisible i have i haven't i didn't get that far that's an interesting observation i do know that  and how does that how does that help your argument else my argument is that you have so that is still least of those for purposes of this exercise that is the least of those and you have to assume that it's