good morning and welcome to the eleventh circuit call the first case united states versus gillis mr bashir thank you may please the court good morning statutory interpretation any court to look at the elements clause language a felony that has as an element the use attempted use or threatened use of physical force has concluded the categorical approach applies and the elements clause in the solicitation statute is no different so the question here boils down to this it is not a question of whether mr gillis his conduct constitutes federal kidnapping because that is not what the statute requires the sole question on this issue is whether federal kidnapping itself is a felony that has as an element use attempted use or threatened use physical force and the supreme court has already definitively answered that question no it has told us that congress intentionally drafted the federal kidnapping statue broadly to cover a wide variety of federal kidnappings and that physical force violence or injury harm to the victim is not an essential part of the offense by design specifically so that federal kidnapping can include a wide variety  one judge anderson and the supreme court is quite clear that the essence and the man if you will of the federal kidnapping statute is the use of either physical or mental restraint it is very clear that for over half a century the supreme court has and every court to look at the federal kidnapping statutes since then will there be the seventh circuit the ninth circuit the fifth circuit and even this court's decision in boone has all reiterated chatwin's main principle that federal kidnapping includes either physical or mental restraint and it did not equivocate there is no mention at all that physical force is a requirement of the statute for a very specific reason because the historical context of where federal kidnapping emerges from is on the heels of perhaps the most infamous infant kidnapping in american history in the lindbergh kidnapping this predecessor statute was called the lindbergh act and the purpose of congress using a wide variety of verbs and means by which kidnapping can occur is to cover and of an area of kidnapping where kidnappers could use non physical means or mental deception or  lure their victims across state line and what congress the harm they were trying to seek out is to capture those type of kidnappers see where congress was concerned with this we don't want the creative kidnapper to get away with this crime so i can the defendant necessarily has to have the intent to use physical force in case the deception fails so why does that not mean that  some kind of physical fullest is required the reason for that is because boone not correct your honor boone actually says the requirement is physical or mental restraint citing back to is on point and i would contend that boone in fact supports entirely what we're saying because boone is reiterating the principle of chapman and what boone and boon the use of mental restraint in that context is far fetched in a mere legal imagination then we disregard it because it's not real world it's hard for me to imagine when deception has failed and of mental psychological force could possibly be in the real world i'm very glad you brought that up because i think that actually gets to the heart of the dispute here and point back again to chap one because this gets to the heart i think of the dispute here there's a contention that what we asserting is a hypothetical if you will that if the confinement fails is a far fetched imagination it's decidedly not that case because when we're talking about the reasonable probability of where the federal kidnapping statute specifically by composite confinement where that extends the supreme court used the confinement example specifically to explain that confinement if you have an individual is incapable of being unveiled or decoy such as an infant again going back to the very purpose of the statute that victim does not even need to be aware of their confinement so far from a hypothetical yes but in the end fund case another element is is he the  victim has to be hell for ransom and so it seems to me there's an implied threat to the health of the injury to the infant tell us that thankfully for congress his purpose the answer to that question is no there does not need to be a slide threat there does not need to be held for ransom because and i don't mean this is a hypothetical but what congress is actually saying is suppose you do have that infant scenario and someone who is holding a child doesn't say i'm going to harm your child if you don't give me a ransom or i'm going to keep your child but just says i want x amount of monies or your you'll never see your child again and if we were to show up at court and our defense was well i never actually threatened to harm the victim or i never threatened to harm the family i am quite confident our friends would either move to strike us from raising that defense or argue to the court that's not a valid defense under the statute there needs to be no threat it's involuntary unless or coercion that is which one says specifically to that confinement and this is just reading exactly what the supreme court about a situation where a relative who doesn't have custody of a child takes the child because he or she wants to have the child yes you're right yes your honor i think that any no harm to the child but just wishes to take the child away from the other parent that that is the essence of the crime that's exactly what the supreme court is saying so you're a judge prior absolutely correct that the the point of kidnapping is and what the supreme court says what our jury instructions track involuntary ness or coercion and that involuntary coersion could be against will of parents could be against the will of another there's no it is by design the that the kidnapping statue extends to this wide variety because i have a two record questions i certainly understand your argument categorically look at the statue we can't look at conduct and my question is i could not find any case that applies the categorical approach supreme court case two yes right and so this statue is also unusual in that we're not looking for a definition somewhere else in another statue we're looking at a single statue is that correct yes your honor there is a nine to four c we have to go look at another crime to find another statue correct i'm not sure i mean we have to go look for the crime of violence definition of the statute well the nine twenty fo defines what it means to be a crime of violence and here we have the elements clause so it's the same language of of using that and it uses the same physical force language as well and this is all in one count we don't have to look at another account we just have to look at this one count of the statute yes and i see my time is now you are not you can keep answering the questions you have to look at this one count of the statute and compared to all the other cases where you had to look back everything the district court needs to know about what this defendant did it is in the record before the district court is that correct yes ok but if i may be my time is up i think this is a very important point because it is in its dressed in st hubert's i really want to make sure i explain the contemporaneous conviction of those two quick points that i'll just make one and if you look back to the cases that are cited in st hubert robinson from the third circuit the key even in the contempora circuit yes at this categorical approach applying it this way it doesn't make sense if we are still looking at the text of the statute the word element cannot be read out of that statute so the inquiry at the end of the day is including an element and from the previous discussion is just having with judge anderson even if you take the word verbs inveigling to there is confinement in the supreme court without mincing words and boone says that as well is clear confinement does not need to include  also have to read into the language of the statute something that's not present in other statues is quote engage in conduct and twice it says in the statute engage in conduct and the statue is telling you you're looking to see whether the conduct here the conduct this defendant did had an element of force why is that not a plausible one possible reasonable reading of the statute answer the reason that's not a plausible reading is because it would read out of the statute the phrase felony that has as an element the use or attempted use the word felony would be taken out if judge you and i fully agree that the cut i'll engage in conduct constituting at fallon me that has all of this conduct in the statute is a felony the felony is the possessive phrase has applies to felony the natural english reading of that phrase if it is if the statute of congress had intended the inquiry the entire inquiry to be a conduct question the statute would read to the effect conduct constituting we have an issue of first impression it the phrase felony has as an element is a question well settled in the court the conduct question here as the best analogy i can give your judge holt just take nine twenty four see there is a there is a conduct question there are two did the defendant use or possess and further and that's for the jury the pure question of law is is a king is the predicate offense a felony crime or violence it's the same thing here we're identifying the predicate climate violence if our opponents  argument is true you could conceivably take mail fraud or lying to a federal official thousand and one and put that before a jury and the government put our last thing you agree that in the seizing and combining well that's just one of the three i know but i'm just saying so every kidnapping has to have hoarding for ransom or some type of gain in some sort thank you yes thank your honour's have your full four minutes for a bottle mr  for the united states gillis the list today of violent kidnapping he asked for manpower and bondage equipment he planned for the attackers to grab the victim in the early morning darkness hood  rape and sexually torture her that's the reality that's the reality that was before the jury that was the reality that was before the district court and there's no reason one section three seventy three directs courts to consider the conduct solicited for the court to put on those blinders that it wears in the categorical approach when it's trying to reconstruct some stale state conviction that happened decades ago the supreme court explained and mathis the reason why you apply the approach under the ca is because we're concerned with a variety of concerns first the sixth amendment concern stan that none of those concerns apply in the contemporaneous situation that we have and that we had contemporaneous sort of situation and i do think the law is likely moving in the direction that this court suggested in st hubert we're going to distinguish between contemporaneous crimes charged in the same federal indictment and reconstructing you know sort of an archaeological excavation of prior conviction certainly should do that but can we with mcguire or one of the differences between the statutory language and mcguire one twenty four see it talks about an offense that has an element one twenty four c even though the fourth clause a similar doesn't have that language conduct constituting which as churchill pointed out is repeated twice a year so here we have language conduct doesn't have elements right only of the felony has elements that's correct your honor but here is the starting point has to be the defendant's conduct the the conduct and in this statute distinguishes mcguire which was not twenty four so you're right yes you're on a nine twenty four c say something to the effect that it has to be used to carry something like that one twenty four c uses the word an offense that has an element but here it's conduct constituting and this language actually parallels the seventy one point one the revocation of supervised release that also talks about conduct constituting a crime of language that is comparable to the conduct language here i think you might argue it's comparable but you don't have that that conduct constituting language which i think is key i think that statutory difference where i don't think maguire controls and this court you know i guess conceivably could extend it but i'd see no reason to extend what appears to be as this court pointed out in hubert perhaps a mistaken view of the law already this court was founded i think we should it is just not in involving three seventy three but you know that really makes sense if if all the reasons in mcguire would also apply here you see what i mean well i think i think it would be an extension because as judge pointed out this would this is an issue of first impressions you're not bound by mcquire and i see no reason to extend mcquire when all those reasons that required the categorical we can't we can say talking about the language of the stature you're talking about and a lot of approach and it's whether you now apply it to another wholly independent statute that has materially different language that's about what you have to argue that and i understand and mcquarrie you have it's about whether it was used are carried during a crime of violence this is materially different statutory language is what you have to argue because it refers to conduct twice and you just have to read the statues and hear the indictment is is directly they are and it's all on one count so you just have to make those material whether they're well some might posit are done different here and the reasoning the holding of the case includes the holding and the reasoning that was necessary to get to that holding and hear the reasoning necessary to get to that holding in was this analytical approach and i guess again because it's a different statute and here we have an answer to that that i'm sorry that application is binding as to nine twenty four see this court had to apply it in st hubert but it's not binding here because the judge pointed out it told pointed out it's a different statute with different language dixi we can here i mean that's the dilemma and we also have here we know it's actually i think an interesting issue and perhaps a difficult issue about whether invade woman to kidnappings would qualify but satisfy the source cause but in this case conduct in this case no i think it absolutely matters that we know that these were the only alternatives that conceivably could have formed the basis of the jury's verdict and the defendant has never argued on appeal that found correct that correct but under mathis when it's talking about what the elements are it says what the jury necessarily agreed on and here we know the jury only could have agreed on the five physical takings because those other alternatives were never even before it under the modified categor useful notion when we're trying to reconstruct some prior twenty years ago still state conviction we have to discern what necessarily was the basis of the jury's finding but now we are in the real world and here in the real world we know we can look at  the jury instructions and we can look at the charging document and we know that the only takings that were before the jury were the five physical takings and the maclin case which the defendant cites in the reply brief at one actually is a really good sort of explanation of the different requirements of kidnapping the five physical takings season confining kidnapping abducting and carrying away all the informant all involve an actual physical or bodily carrying away a restriction of the victim i don't see where you argued that the statute is divisible in your briefs you acknowledges in his opening brief that those alternatives weren't even before the jury so he said the least culpable conduct is kidnapping by confinement so we shouldn't even be talking about and they were mentioned equally those are off the table they were off the table in the district court they're off the table because you never argued that in his opening brief frankly i think you're wrong but even if you were right confinement has precisely the same problems as in beagle money because somebody could be confined by deception  much well as your honor pointed out the application has to be plausible and in every single case that i found the defendant hasn't cited a single case where the mental restraints were anything other than fear or threat and jenkins those were cases where they both depended on them they've all been declared alternatives which again are not before the jury but in our circuit we know that the involvement must be backed up with force so in that sense the force is always late alone isn't a kidnapping crime the court said that in boone force is held in reserve only because the kidnapping the kidnappers deception is operating successfully but in order for it to be a kidnapping there needs to be backed up with that force that enough well mental restraint in that context is i think fear i think that's putting the victim in fear just like putting the victim in fear robbery if you say you know if you leave that room i'm going to kill you i'm going to kill your family i think to the want to answer to the mental restraint issue might be that they also has to be and you have to put it in the box with this mental wrist right you have to be he ransom or reward or otherwise and i think there is certainly for reward and ransom there's an implied threat of force what about otherwise  relative and that could happen you could have a relative who saw that this was being not taken care of well and or you could even have a woman who couldn't have a baby and wanted to baby real bad and so this baby and just snatched it you know that is not held for ransom or reward but is it and then we have the holding which is always going to be the holding element by itself it always has to be against the will of the victim and as far as judge prior is question about what about you know somebody who takes you know a non parent who takes a child with them the case law that i'm looking chaplain chat one involved a fifteen year old for instance with the mental age of seven this was the supreme court decision and the supreme court decision said that that wasn't kidnapping you know even if that was against the parents well in that case because there was no evidence that it was against the child's well she could accompany the kidnapper willingly it was the plural marriage case and similarly and maclin that involved an adult who had to basically run away children who were in his company and in that case the court said there was insufficient evidence that these victims were being held because there was no showing that they were against their being held sort of against their wishes so i think that holding element also in addition to the fact that we know here that this is one of the five physical takings there's also that requirement of holding and under the law of this circuit there's always going to be either actual or late force that achieves that holding back to judge anderson's question curtis johnson tells us that it has to be violent force so the greatest johnson definition is playing again the ac ca which is a more narrow definition of force this definition of force and com both it says that they see the requires that the physical force be used against a person and under the statute it could be used against a person or property so the mcguire case actually uses sort of a broader reading of and i see my time has expired  or violence how that would even apply to a force clause that also includes force against property which obviously isn't capable of causing pain so i think this force clause is broader than they ca because it reaches not just persons but also property and if it does reach also property it's very bizarre to say that carrying away an infant wouldn't be the use of force against that infant that's far more than the de minimus touching even if we were to apply the johnson standard which again i don't think should apply given the able to prove the facts of the kidnapping in that situation and you know there would still be three seventy three offenses that right right the i think the government needs to show needs to establish what was the conduct that was solicited and does that conduct and have as an element the use of force distinguishing for instance like a mail fraud case where the actual facts of the offense included somebody punching somebody that's not a federal you know that's where we get the meaning of that has an element it still has to be a crime that requires violence here kidnapping by seizure not just nonviolent federal crime that happened to involve federal kind of this crime itself which has to be identified so the jury can decide if you solicited that version of the crime so here the version of the crime is kidnapping by one of the five physical takings and that's the basis the jury for well let me give you an example what if all the government had here was a craigslist craigslist message from gillis to somebody else with a photo of the victim and said here's a picture of the victim of the unsuspecting will you bring her to my storage unit such an address what would be the result there so in that case i don't think you could necessarily use  the conduct solicited to narrow down the versions of the kidnap except you because you wouldn't know is he going to bring her there by deceiving her or is he going to bring her there by as the defendant wanted grabbing so this is a kidnapping by seizure we can see but in that hypothetical we wouldn't know what kind of kidnapping so maybe you would have to look more broadly and say you know in a kidnapping by deception would that still count and i think the answer even there even if those alternatives were before the jury the answer should still be yes under the law the circuit  thank your honour's three three points that i just want to address first i'm a bit confounded by the distinction between the five physical and nonphysical because there's not a single case in the entire federal court that draws that distinction and it would be light chop when itself second and it's to judge anderson's point yes we are applying the categorical approach and confinement clearly includes nonphysical force but even if we were to  the modified categorical approach there is no jury again and immunity on any physical force it's not in the jury instructions it was never brought before the court so we would have a serious sixth amendment problem if we were to follow the argument here because the question of whether fit credible kidnapping was a crime of violence by the government's own urging of the district court is a question of law the jury was not even asked that question so the element in the under the solicitation yes they have to decide that was that an injury and struction yes and her objection was overruled when we had argued under our jail way argument was that if we argued that as a matter of law federal kidnapping is not a crime of violence so under a jail way and if you take st hubert peters as well this is a jurisdictional question that you cannot even bring this charge if when that objection was overruled we said well if this is a conduct question then the next  like i just got i'm sorry well the computer and i don't mean to be confusing but the confusion actually stems from the fact that respectfully our opponents are making it very inconsistent argument on the one hand they are saying that this is a conduct question but on the other hand their argument which is correct is that this is a question of law it's a question of law because the categorical approach applies it is not a conduct your argument really here is the indictment should have been dismissed should have never gone to trial well because kidnapping cannot be a predicate crime under three seventy three so that's really the bottom line here you're saying under no way can it always be that there should have been a dismissal of the indictment that's that's one argument to look at and that's the logical extent of your argument you cannot convict somebody under three seventy three for the federal crime of twelve all one kidnapping that's what you're saying here yes your honor and no matter what he did here that crime no never constitute a predicate for the three seventy three conviction yes but i want to be what i want to be clear because i think that's really where you end up here i wouldn't disagree with that but i do want to you got it up with a motion to dismiss and really live on judgment of acquittal no matter what it's not w t just thinks and hubert's made that clear no matter this type of klein we're not mostly white if you're saying there's no conduct i could have done that's what you're saying here it's a non offense doesn't matter how i did this kidnapping it doesn't matter why they are strangled somebody did anything because there was a ways i could have done it without a threat of violent i cannot be indicted or convicted for this of sense y i'm going back to judge example of the relative taking the child not asking for any reward or ransom  but just morton to bring the child up instead of the person that posted it seems to me that would not be kidnapping but because it's not for ransom or reward or otherwise in other words i don't think the other way would include that hypothetical i'm not sure if that that's entirely correct and that probably would be more of a bit of a jury question in  statute as it were also taking the same principle of statutory construction we are we have to look at the full context of kidnapping the whole the subset of kidnapping offense and i think we can all agree is an extremely broad statute it is meant to cover a wide variety of offenses a fairly confident congress would want to cover at that hypothetical is significant in my mind because they may not be the implied threat of force in that hypothetical layer and that's about the only one i can think of the only other one i could think of is somebody kidnapped somebody in said if you could be believed i'm not going to  dismiss as being far fetched that doctoring and i don't think we need to go any far fetched because i would just bring it right back to chad when we don't even need to get creative at all confinement can be against the will the parent you take the child there needs to be absolutely no threat whatsoever if you want your child back give me your money that it's as simple that's an implied threat well the implied threat there is not there is no implied threat there because there is nothing that the jury would have to find ever that there was a threat in fact the kidnapper could say you know i'm going to raise this child my own i'm going to tell them their own and theirs i mean classic again if that then he's not holding the child the kidnapper say i'm going to keep the child if you don't do something no implied threat or express threat to harm the child at all but simply not to give the child back absolutely that's exactly and that is the impetus for the kidnapping statute itself because you do that's exactly what kidnappers were doing taking rich infants and saying we're not going to give you your child back unless you give us money no threat whatsoever both raise your holding the child and confinement though yes if you have to have a holding against the will of the parents are against the will of the child i mean it can be the one yes your honor so why isn't just the mere holding against well holding holes against the how in the statue has to be against the will of the victim or against the will of the parents and where i found the will of the parent it's in chat when it's self chat when specifically says that and we're  would that not holding even if it's against the will of it's a child who doesn't know any better why isn't that a threat of violence even if it's against the will of the parent and you're holding the child best physical force for i know your hon the reason that and because because being is not physical force the chat when itself makes that absolutely clear and i would agree that a domestic violence case i mean kidnapping no child when is a seminal supreme court case else but i will leave and see i've gone far over my time but i will leave on this point because where i could see where there might be some equivocation and invite the court to read the seven circuits decision in jenkins that addresses exactly this holding element or the seventh circuit said the holding element under plainer review so on a much tougher standard oeuvre you said does not include the use of physical force and i would be remiss not to point out that the solicitor general in filing to the supreme court has not even of raised  this as an argument and far be it for me to disagree with the solicitor general about what constitutes a valid argument for the supreme court so there is as plain as day and i've read it the solicitor general is said a lot of these not raising this physical force argument and even in that context it's the same thing the third circuit said it is impossible to read the statute taking the word element out so while we're using categorical or modified categorical the inquiry goes back to elements the element of the offense and i will conclude by saying every court to look at this has said federal kidnapping does not have as an element the use or attempted use of direct physical force and thank you for let me exceed my time in the argument thank you very much