categorically overbroad child abuse charge and the two thousand and eleven curtis johnson battery the innocent transitory possession instruction that was requested requires defenses that have been applied right but the problem here is you didn't you didn't defend in with a common law defense of necessity rect you didn't say judge if that's an affirmative defense putting the burden on you you didn't say i've got a defense here it's it's a necessity he had no choice you defended on the grounds that you said that this innocent transitory possession defense  here but to do that for that to be proper as a charge and as a matter of law you would have to say and read into the statute willfulness not just knowledge because as someone acted with a bad purpose to disobeyed disregard the law it's a specific intent but this statute is very interesting the way it was written congress did not choose to put i n any specific intent requirement let's hold a side knowledge which we've read in for sound prudential reasons for thought would certainly not found in the text but how do we read in when i make this a specific content statute when congress quite clearly and quite expressly chose not to do because what you're asking us to do is to add an additional element to the statute will thrust of at least my question yes your honor i do follow your question and that was addressed in in the case in the tenth circuit where the tenth circuit adopted the standard that judge newsome just that there is no room for the gu looks in the bag he's guilty there was a petition to hear that on bach and there was a dissent that's in the record by judge mcconnell very reasoned dissent discussing a  en recent decision by the name of dix where the supreme court indicated that that the court is expected courts are expected to apply common law defenses that do not negate the elements of the offense is it a common law defense is innocent transitory position the common law defense as opposed to justification o because they didn't prove beyond a reasonable doubt of the elements in the offense possession that he had on or about his person a firearm that moved in commerce then i guess the trouble i'm having is i don't know how an innocent transitory possession could and the gate anything other than the element that's not there to with the absence of willfulness because that a strict liability offense basically you pick up the gun you're guilty and i know now but it's very interesting the language may be a little loose in calling it technically strict liability call it what you will knowledge is a requirement so if someone unknowingly if a cop wrongfully put a firearm in someone's back and then boss that him for being a felon in possession of a firearm he's defense is i didn't and that would be a perfectly adequate defense i think your honor what i was trying to say is that the court has said on several occasions in this circuit that that vote of the defendant is guilty is a good defense i think necessity is a good defense the absence of knowledge is a basis for challenging what happened here the only thing i'm suggesting is and maybe i'm wrong about this i don't see how mcconnell tenth circuit and also addressed also in mason as to the pedigree of this innocent possession defense he cites other prior cases from other courts might fall under this kind of thing and i thought of a couple but they put a put a remote and so my basic question though you got the common law justification of it certainly justification defense but that those circumstances and a very narrow set of circumstances like the one described in mason required that this defense is it was just too harsh to mailbox where i had to open it with it and i open the mailbox i pull it open and i look inside and i see a three fifty seven magnum  and i shot it i'm not guilty i might have been possessed you are let alone knowingly possess that it may be in my mailbox but i haven't touched it i haven't possessed it you are your well i don't see how there are four requirements for the justification defense and i don't believe that that would fit all four of them that sort of circumstances that your honor just described was a scenario that the court in mason addressed a similar scenario where that delivery driver had returned to his truck and found the truck broken into and saw a gun sitting on the front seat called nine one one and the peace arrived and he had the gun that would not that would not fit the justification at all for criteria but it would necessarily that court found any way require a judgment of acquittal by the court however if the driver had taken the gun home and the police discovered it the next day and he gave the same explanation that would not fit the narrow someone's twenty four year prison term should not depend in the end just on prosecutorial discretion see i agree with that you're speaking for myself i don't think you have to rely on the good faith of the prosecutor maybe they've got it maybe th or and i t p defense you sought to impose and help me as i understood the facts here your client testified he had a cell phone on his person at the time that he went to the mailbox he opened the mailbox you saw the firearm in the mail box he could have closed the mailbox stood there for fear that maybe some kid might come up although you needed a key to get in there he said there was a possibility that maybe the children in his household who would have access to could have stayed there he had a cell phone and just dialed nine one one and said ask the cops to come down there and said there was a firearm in my mailbox i have not taken it out i am concerned that there are kids in the area will you come and retrieve it you could have done all of that which would have involved the the defense of necessity or sounds to me like pretty good defense here if that's what had happened but instead he didn't do that he didn't call anybody he goes in by his own account takes the firearm out of the mailbox puts it in his back pocket and by his account he's going to go into his home and when asked how come you did it  that is answer is well i don't know who put it there and maybe there were some risks and some bad guys were out there and i had to get inside with with the firearm that strikes me as hard to friends if you had asked for that since it seems to me that he had time space and opportunity to warm ensure the protection and the safety and to stay away from that   your honor the the court's points are addressed precisely in mason in that situation and the opening the mailbox was the equivalent of the delivery driver opening the that the defendant's conduct there was within the range of factual scenarios that are described as plausible and debatable for a jury to decide and the court then went into some scenarios what would fit what wouldn't fit and i mentioned one of them minutes ago that would not fit into the very narrow defense and it's important also to note that the standard in this circuit for obtaining a defense theory of defense instruction is  very liberal liberal and includes a very important point that a defendant is entitled to a theory of defense instruction although the sole testimony in support of the defense is his own any foundation we insufficient inconsistent or of doubtful credibility so there's a range of factual scenarios and certainly what your honor has suggested would have been one reasonable course to lock the box but the court in mason said that it would also what that driver did was we it was close enough to the within the range of reasonable knows that the facts were for a jury to decide and they may or may not buy it out of thanks very much and you note united states attorney todd grandy appearing on behalf of the united states of america may please the court your honors your honor the threshold in court is whether there is legal support for the instruction as this court for much the same reasons that this course expressed already during the course of this argument at least five circuits have expressed lee declined to recognize the defense and we respectfully submit that's what this court should do here but versus harkness which is cited at page twenty of our brief it's none published decision which is which bears directly on the facts here because there this court concluded that the defendant's possession of a fire of a cellphone on his it certainly wouldn't be rocky appropriate in that circumstance and that is exactly what we have here there was no reason for mr of rain to remove that gun from a locked mailbox and put it in his right pocket he easily could have closed that lock box and either made a his girlfriend may have had one of them north of i guess what i'm asking is was this like a bank a mailbox yes your honor right so that instead of the mailman having to go to each individual apartment downstairs as a group of mailbox yes your honor it c owner occupied and he yes so the this particular mailbox corresponded to his apartment yes ron's opposed to someone else was pause a yes so the only people who would have had you say he had the weapon as i remember the instruction and constructive it's on or about his perth right and it's in his mailbox we are i think i suggesting you would have but let's just suppose they open the mailbox and reserve the gun into possession of the gun that violence would ensue so that well he could call them he is on stand at the wife but back back to if the justification defense would not work in that particular situation way opens the box sees the gun club as unlocks the gun box back if the justification defense would not work then this might that might be a hypothetical in which you might need a a defense like this but one which had all of the safeguards and all of the restrictions of the justification defense and other words he's our he's guilty because he's got constructive possession but he's doing everything he legally can do which would have to be called immediately police and so forth all the reasons this defendant does not qualify and and he has to maybe even if he has to stay there to guard against somebody else  get in the gun or make immediate arrangements so his wife who has got there the key does not if the justification defense would not apply that might be an example i had a hard time thinking of an example but that might be an example where this guy and of defense would be in some other case appropriate we're out of the problem with that is getting back to the knowing requirement of the statute  honor and i would also point out that the d c circuit decision in the united states versus mason is a clear outlier every other court to address the matter that i'm aware of his either expressly declined to recognize the defense or instead has simply done with this  has done with congress have the i thought what you were going to say in response to judge inducing when congress made a decision here absolutely they chose to make it a crime felon to possess a gun and they wanted to draw it as widely as they could because of the person issues of fact they thought felons in possession of a firearm would support issues for that reason they did it and so they quite intentionally left out of the statute these kinds of bens are a requirement it didn't stop the courts notably including my court from reading knowledge in to the statute although there's nothing at all in the statute that speaks of not knowledge it just says it shall be or unlawful for any person who has been convicted of a felony just said your honor tracks what the ninth circuit said in united states versus johnson which is cited at footnote five page twenty of our brief where the court there noted that congress certainly knows how to create eighteen u s c nine twenty four eighty two that provision adopts a knowing mens rea requirement for nine twenty two g offense so i think it is part of the statutory construct and this court of course no doubt based on that has consistently held that the one of the three elements of a felon in possession offenses that the we government must establish that the possession was in fact knowing and here it clearly was mr green had no reason to physical  to be some statutory us a poet for reading knowledge into this statute tell me that again yes you are believe it's eighteen us c section number nine twenty four eighty two and it adopts a mean that's where it comes from so and in any event i don't think we were just court to not adopt the outlier approach the d c circuit adopted in united states versus mason and instead adopt the approach by factually opposite case we have here is this court's decision in united states for hartness do my normal practice is to address only issues the issues that the opponent raises during his principal argument but i'm gathering this court would like me to address yes and would you  battery and i have a couple of questions i'll go ahead focus you number one do we have binding precedent that touch or strike is divisible  florida simple battery statute is divisible it includes three elements notwithstanding that they could hear of that decision however this court in two thousand and thirteen decided to cases both of which continue to hold that the statute is indeed divisible includes three elements though and those both of those decisions were cited in our october twenty sixth response to one of mr green's twenty a j letters those cases are united states versus d as called her own located at seven sixteen fed third thirteen forty five at page thirteen forty seven and then secondly this court's decision in turner versus warden located at seven o nine  third thirteen twenty eight thirteen thirty nine through forty eight and those cases both of those cases were based on the supreme court's two thousand and ten decision and curtis johnson versus united states which concluded that florida's simple battery statute is indeed divisible it includes three separate touches strikes and bodily harm prongs so they now so based on that yes your honor we the answer to your first question is this court has binding president holding that your honor absolutely your honor and also frankly that the that president relied on the supreme court's two thousand and ten decision and curtis johnson versus united states so the the  but this court is i think the way to harmonize the two approaches is to take the approach that this court held in twenty eighteen in its decision in preston johnson versus united states located at seven thirty five federal appendix one zero zero seven at pages one thirteen through one fourteen we have the site again it's preston johnson versus united states seven thirty five federal appendix one zero zero seven  zero one three two one four and in that case what this court ultimately did was it recognized that the battery statute is divisible into at least two prongs based on the statute the two the two prong structure of the statute this court there declined to determine whether the touches or strikes prong is further to visible instead determined that the they are the defendant had played played or will had been convicted of  two thousand and eleven conviction or offense battery offense establishes that for a period he falsely imprisoned a woman for nine to ten hours and during see him way over time your are you take your time ok varying falsely imprisoned a woman for a period of nine to ten hours and during that time period repeatedly hit and struck her face an arm causing injuries that play colloquy submit a stablish is that mr arena was indeed convicted of both the striking prong of simple battery and as well as the bodily harm prong of the statute and that your honor it is a that approach would enable first in kennedy the issue was whether the massachusetts offense of assault and battery with a dangerous weapon was a violent felony that offense can be committed intentionally or recklessly and the separate documents in that case  not clearly indicate one way or the other whether defendant had been convicted of the attentional intentional version of the offense or the reckless version of the fence and there the court actually assumed divisibility but what the court also noted at page twenty two of the decision is that we may draw inferences from facts in a plea colloquy but not for questions of min's raya and there the issue was mens rea a whether the defendant in that case had committed his offense intentionally or that there was no incentive to contest that additional flag pushed it in that direction and that rationale apply with full force and i don't think so your honor because here are strikes that resulted in injury there is no ambiguity as to what mr varun was convicted of doing and what he was convicted of doing qualified as both a striking offense and a bodily harm offense under florida's  simple battery statute so i think the first service decision in committee is distinguishable because a concert was no and save in that particular case without looking about the collateral effects down the line there was no incentive his guilty plea i can and i mean this is not just a support for us fact it's it's the end result of an encounter that apparently last attended a nine to ten hours and resulted in repeated strikes to a victim on her face and arm causing injuries so i think it's factually different i think the problem what the kennedy court was wrestling with is the inherently difficult notion of trying to divine something is ephemeral as intent from  instrument it's far more difficult here what we have is for simpler do we have any cases that suggest and i'll simulate canaday number one and number two of intentional versus reckless assault that is exactly my understanding of the decision your honor you have any case from where we have rely upon  colloquy united states versus dia's calderon decision and they are really sort of much like our case the charging instrument had charged touching striking him bodily harm in the alternative  colloquy reflected that the victim the defendant had a physical altercation with his with his victim resulting in a quote badly bruised stomach so in that case that would be sort of actually analogous to what we have here and that's this court's twenty thirteen decision in the united states versus dia's calderon owed on the bodily harm of the strike interestingly enough your honor we this court relied on the striking prong and really it wasn't until this court's a wall by the defendant injuring her hand and this court can see characterized as a striking offense but i think it clearly could have could have been a really harm case and that's precisely what this court that was you know says this court applied in president johnson said  regardless of whether he was convicted of a striking offense the defendant was also convicted of a bodily harm offense and i think that is precisely what we have here your honors where your honor i see i'm well beyond my time so unless or any other questions i have one other on this i take it the florida courts themselves i've had occasion to interpret seven eighty four zero three one today and i've treated the two subsections as alternate elements of the crime of battery yes your honor and the florida jury instructions as also or treat it in the same way yes your honor and that's that's part of the analysis that underlies the solicitor general's recent  honor and as the florida law inconsistent with outlaw about the strike well our laws versus touch pre strike derives from the supreme court's two thousand and ten decision in curtis approximately eight months after the curtis johnson opinion issued the florida supreme court issued a decision in james the state of florida located at fifty one southern third four forty five four forty nine in which the co upon the corresponding jury instruction for the offense but curtis the construct in court is johnson of course remains in play and this court's authority relying on johnson certainly remains controlling your honour's this court recently the full court and a number of pages distinguishing nine twenty four see from in terms of the constitutional and practical problems of the being at prior what the prosecutor said about those facts they problem is that since in the last several years what the kennedy court in the first circuit try to address was the change in the law and the more strict application of the ability to look at shepherd dog documents expressed in mathis that indicated that the sole job of the sentencing court is to look back at the plea colloquy to determine if if the court can clearly ascertain which form of the offense if it's a direct can we ignore the procedural posture in which that case arose that is to say the court was struggling there with a very different statute arising out of the massachusetts penal code there they are talking about whether the assault or battery was committed intentionally or recklessly that was the essential problem was it not that i say we're facing in that case whereas in this case when you look at seven eighty four point zero three there's no question that it has to be committed intentionally there's no we don't have that issue here we don't have it factually and we don't have it in terms of the actual language of the penal code in florida as opposed to the yes isn't that distinction very important here not entirely your honor i don't believe that the well they're holding arises in the context of a statute which is profoundly different that's the that's the point that i'm trying  i'm trying to get at yes your honor however struggling with a different statute that raised a different problem we're not struggling with mens rea or whatever else we are struggling with that's not our problem here colloquy clearly establishes so for example if you had agreed to those facts and the state judge had said which he did not i clearly find that you committed a  that you intentionally caused bodily harm to this victim and are therefore guilty of seven hundred four o three curtis johnson battery then i think that would be a difference however it is unclear from the greatest evidence that it is very unclear as to which part of of the battery statute is implicated is the government has argued from the sentencing through all the pleading until the solicitor general's memorandum that this was a toucher strike and didn't fool with whether one a one in turn was divisible that is to say actually an intentionally touches versus actually intentionally s panel got it wrong not not necessarily you know they may have well you're right it wouldn't be bound by them if they got it wrong but i'm just asking you whether they got it wrong that was a twenty two fifty five if i recall the case correctly and the standard was is it more likely than not that this defendant was sentenced under the residual clause that no longer has in effect and the the petitioner could not prove that by the facts and edition only that petitioner had not objected to any of the right but whether it was a twenty to fifty five or a direct appeal the fact remains that the court had to how to address divisibility and did address the visibility and squarely held that want to a one and one a two were divisible is not right yes you're on a plane haven't missed read that that opinion anyway no your honor it was but i believe it's much and i notice counsel that you were court appointed and we very much appreciate you taking on the burden of vigorously representing