it's number thirteen six five three six and fourteen five one six eight united states of america versus the reginald strong and yes the banks argument not to exceed ten minutes for each defendant and twenty minutes for plaintiff  tailor and mr sullivan for the minutes for rebuttal your honor we appear before the court with three assignments of error at the district court level the first is that the district court erred in sustaining the besson challenge by the government when the defense offered a racially neutral explanation for the struggle for the juror that we attempted to strike next that the evidence as it relates to the dream and then it proceeded to the second step of the analysis in that step we offered to the court two reasons that this potential juror or prospective juror should be eliminated those reasons were that the juror worked or worked for another perspective drew or there was in the panel in the second reason was that the mr strong noticed that the jurors who were staring at him made him uncomfortable in the analysis the court completely disregarded those reasons and as pretext but he went onto to eliminate that your honor your honour's the district court failed to do any analysis as it relates to the reason proffered in that the prospective offered him doing this the court said the district court said that he observed this particular prospective juror and that he did not observe or observe personally that the tour prospective juror was staring at mr straw mr strong now i would point out to the record at record id number five eighty four through five eighty seven wherein there was an exit another example the district court maintained control over his court room and maintain quite an extensive amount of control of the selection process he was not in the position to completely observe all of the actions of all the prospective jurors entirely in the record id that i cited to it was a situation where one of the prospective jurors was in fact in the jury pool reading a book and i called it to the district court's attention and when you read the record you will indeed it will indicate that once i called it to the district judges attention he indicated that the juror was reading but that's not hyde actually happened once i caught it to the judge's attention he turned and looked towards the juror and saw this he was feeling reading before he observed that that is an important that's an important fact because it goes to show that although the district court simply disregarded to the race perspective drawer staring at my client wow the selection process was going on and that was the reason for the elimination but what are we supposed to do when the district judge says that he didn't observe the staring behavior and your client and you say that you did we don't we have to have some kind of principle that we defer to the district judge who's there yes i mean we could say that we think the district judge is incredible i mean it we're in a very awkward position let's put it that way and we don't want to say that you're incredible we don't want to say the district judge is incredible but  principle but in fact i'm not asking the court to say that the district court was incredible when he said when he indicated that he did not observe it but the fact that he didn't observe it doesn't mean it didn't happen  in fact he took the position as it relates to my credibility when i told him that i actually saw it so although you're not in position to attack the credibility of the district court  in the district court does in their position but i guess to attack my credibility but my point is in referring to the other example where there were things going on in the district at the court that he was not aware of that he was not consciously observing this is another situation where he may not have observed this but prospective juror staring at my client at the time my client observed this action which caused him concern but but your principle would then be that if you or alternatively if the prosecutor had made a statement that you observed a particular juror looking in a funny way that either you or the prosecutor should prevail on the bats challenge so i'm i'm trying to say that you know it applies both to challenges by defense attorneys and challenges by prosecutors and if it is a situation where we could expect that the district judge we would have to say that you met your burden and step three is right that we've been our burden step to actually in and that was say that this event happened at this event happened and that it was a race neutral ok but but then we have to get to step three so what's wrong with what the district judge did in step three was what the district judge did step three was he completely disregarded  that particular assertion as pretextual in manufacturing and then he he went on through his analysis and failed to address and all the assertion that that particular prospective was they were no longer working together that was and gone to the step three analysis by the district court that was before he even turned to the step to analysis so it's the order in which it's done is the order and was just done because this is our position then those comments went  to the fact that he rejected our race neutral explanation but the judge moore's point in that it's a totality of circumstances test with a lot of deference to district court judge and so we're really looking for something that shows boy this is really a pretty serious disconnect my sense of your argument is the key evidence  pretty serious disconnect is you have other evidence or there were times where the judge was not watching jurors completely and so just could not have completely known whether there was staring whether someone really was reading a book or not reading a book and but i don't know if that's enough i mean it seems to me the judge is assessing the whole the whole situation and you know we reduce it to these race neutral explanations and so then we say is that prete that second question is based on a whole lot of things about what include not including just whether you saw the staring or not but the law on the record before the court as relates to my assertion is that we we're in a situation where we're offering explanations for our actions in the judges who are reliant completely on his own observations as if things are occurring that it please the court if i may reserve two minutes for rebuttal please i'm christopher sullivan here on behalf of appellant joseph banks the codefendant in this matter this is a carjacking case essentially and just briefly that the facts that the touch on the the five assignments of air that we've raised or that these two individuals approached the driveway of a gentleman named albert hall who was the victim approached him and gentleman w exchanged the taser apparently was used and in the course of the struggle keys fell on the ground this is according to mr bowles testimony and mr hall ran off now there is a dispute whether or not a firearm was discharged mr hall clearly testified that it was and the jury so found the issue with that that touches on the matter of the two errors that we raise here concerning the intent that is a career prerequisite for a conviction for carjacking and the cross reference for attempted murder are that the firearm that mr banks that the gentleman with the orange sleeves and you'll see that reference throughout the striver seat where mr banks was and the revolver was in the seat on top of it where mr strong had been pulled out of the car what matters about that is that also actually no cartridges were found and no other testing was done to determine whether these farms had been discharged the revolver however had a spent casing under the hammer or the firing pin and that's important because the two errors that we assign related to that are one and i'm going in reverse order the sentencing issue as to the cross reference for attempted murder because the factual conclusion that the district court drew from that is that the revolver must have been the one that was discharged and that's contrary to mr hall testimony which is the only direct testimony on the point is far as an eyewitness and so that is a iranian's conclusion we would submit or it simply was the case that mr banks isn't the one the fire the weapon but in either case we've that matter who of the two of them fired the weapon i think for purposes of the attempted murder cross reference i think it does because one has to be to be foreseeable and it also has to be specifically intended i believe the braxton case speaks of that pretty clearly that that has to be the goal here is to murder the person and based on the facts here were it's not clear or that the gun that mr franks had was fired or was it the one mr strong had that just undermines the idea that mr banks was the one that had some intention or even mr strong but that there was the intention to murder  is regard to the firearm or in regard to the far right is that the sequence of events that caused this to be in the category of a carjacking versus a aggravated assault and the auto theft or  robbery or some other combination of individual crimes versus a carjacking that you have here you've got the fact that this pistol was brandished and that's not disputed but what is disputed is that it was used to wrest control of the vehicle because the point at which the vehicle is taken hold of and i believe the homan decision speaks of this is the key is what was the this is such a complicated case with all these different things going you say you said there is no dispute that the pistol was brandished in other words mr holmes testimony was clear that the individuals or families approached him with a firearm drawn and there's nothing you know in the refutes that that specific now what else was done in the foreign absolutely that's disputed and so and also your main proof as to why it was not this banks who brandish the revolver is that the revolver is found close to mr straw in the car eventually that's correct it's on top of the seat in the vehicle not under it but actually where mr strong had been seated firearm according to mr hall and again the evidence later when the car was recovered is is that there is more to it than that so that's that's the other issues that the timing of the events where mr hall drops his keys and runs off and so at that point i would submit the vehicle becomes an escape mechanism and i think the applewhite k from the case from the third circuit speaks to this that it's it's the the timing that matters if i can get back to the issue because that's a threshold issue and certainly these other issues may not even be addressed if that one is that is to say in the favor of the appellant's one of the other issues here is that not only do we submit that the district also the fact that the district court had something of a problematic analysis in terms of deciding that the reasons proffered by the proponents of the strike were pretextual based on the basically the complection of the juror that was challenge and that is problematic because i would submit that that test can't be applied in another situation without getting into gradations of skin color which is this entire that's an analysis is meant to  avoid to prevent and so that's that's a bit troubling and clearly you know the district court was trying to go through the steps and clearly the parties were trying to do their best to offer either you know reasons that they  making that strike so so it problem in these kinds of cases could be that some of the things that the district judge says are clearly wrong so one example could be that the district judge says that they fail at step two when we might think no they don't fail at step two but then the district judge goes on to step three so couldn't a district judge cure a problem by moving on to step three and saying in any event  three i believe that the reason that is given is does not meet the burden when i think it is i understand the way the district court addressed it was that in step three he determined that this was a pretext or a reason and the reason he stated he thought it was protection was the complection of this juror as being particularly pale and so i think that that's you know getting at the step three so he definitely have the district judge definitely says that this person was remarkably white and then says that probably sounds bad so the district judge himself is realizing that he is going in improper direction but then doesn't he go on to address other factors well then certainly the issue of whether or not he observed personally where the district judge or jury of the staring was addressed but in terms of it being a pretext i think that's as much a part of that conclusion as the idea that the judge didn't injure himself and certainly that's a factor that whether the trial judge sautner not but also that's just one of many many of the circumstances would be considered are to be considered rather and so you know the judge has to assess the credibility of the proponents of the strike but here it almost seems that was your key point is the staring point but part of it now i mean granted that is as mr strong but we're at the same table and essentially in the same boat so that is one issue but the other issue is also that the fact that the juror had worked for one of the other but no longer did right but i believe he had eyes and that you know a good reason to be skeptical of that explanation well i mean i think that you have the potential particularly where this year i believe it helped hire him and it wasn't just that they had been coworkers but that he had she been part of the process to hire him you know as it turns out she ended up being the four person but you know i think that that was you know the concern in this was addressed earlier on in the record i believe i don't want to misquote it around that it was clear that they still had an ongoing but they you know they knew each other that well i mean you know again you're saying you can't have jurors who know each other not automatically but if there's a concern about it certainly with the circumstances where that in of my times over from a if you've got a situation where that is a concern where one juror had secured or helped secure employment for another juror you know that is a  research neutral reason in the burden here is light it's creamy light it believes the harris opinion says and that is not the only reason and you also have the staring issue which again you know that is more has to mr strong but it still applies we joined in the objection and you know apparent hostility to one defendant could easily translate to another so we think that's also a valid reason that that was not adequately addressed her would how would the district judge properly have addressed these two reasons in your mind what should the district judge have done it step three well i think that other than rule for you certainly but have dressed more adequately or at all the issue of the employment as to whether that was explored why is that i mean the courts doing that now but that wasn't done at the time so i think that could have been fleshed out better the other issue is that the way that they have no relationship now but i mean that was the conclusion that they drew but that still doesn't alleviate the concern entirely should the district judge have had have called the juror up and asked whether he would be influenced by being on the same jury as the other person who had helped him get the job certainly that could have been done and the other issue too is that you know the burden at this point is relieved from the zero point of the strike and so in weighing those factors that whether the prime fish a case outweighs the valid or officially valid reasons that have been made by the proponent of the  strike you know that burden doesn't shift at that point back to the in this case defendants and so this case that the prime official case was strictly these three individuals were struck two of them were for undoubtedly valid reasons that no one is questioning and so you only have this one and so is that enough on balance and i submit that it isn't and we've asked the court to answer judge moore's question the court actually did inquire of mr freeman as to whether or not his relationship with ms roberts had an effect would have an effect on his ability to be fair and impartial throughout proceedings and as such a question there i mean it sounds like the judge was thinking this whole inquiry turns in whether you get to four cause and that kid that can't be this all doesn't collapse into four cause right i mean i need is a race neutral explanation you don't have to say it's it's so good that it would allow for a for cause because then you're for lemonade the whole point of crime respectfully on the court the lower court the district court did not think that before cause a conclusion was the government that non o to ten jurors struck by the defense while caucasian a wipe the court then moved on to the specific three last row jurors that were being contested before accepting  any reason from the defendant the court reviewed it snopes for each juror struck in reviewing those notes the court pointed out that mr freeh and did work with the juror at some point in time it was clear that they no longer work together and they when they did work together they did not work in the same department and had no contact it was after it was after that analysis and after the of the course notes on all three jurors that the court band went to mr freeman and asked the defense for its reason race neutral reason at that time defense counsel defense counsel for to finish strong stated that the reason was the employee employment relationship with the other juror there was nothing that he had to add and in fact mr sullivan had it that there had been a dress and that was not a big deal business over to say that on the record the time that was proffered the court then moved great deference to determine whether or not the credibility of the reason provided by the defendant outweighs the prom the picture showing given by the government and in this particular case the court found that it did not moving on to the sufficiency of evidence claim the standard for submission of evidence is looking at evidence in the light most favorable to the government specifically dealing with the carjacking for both defenders it's clear that the elements of carjacking were proven beyond a reasonable doubt before the jury the government had to prove that with the intent to cause physical serious physical injury or death the defense took a card from the person and presence of another individual that had been effected interstate commerce and they did so by force balance or intimidation they only think your answer to the two attempted murder and more to means i'm sorry i didn't hear what your answer to the attempted murder sentencing hearings and one on the record how vivid the description of the advance word from the victim albert hall throughout his testimony how specific he was in that defendant banks the person dressed in the same clothing the different banks was found in driving his vehicle came up to him with a taser with a gun in hand pointed the gun in his face tase them as he tried to resist he was chased into his backyard as a victim on the ground face down the route to terminology he use was he jumped over the fence suicide it hit the ground here first he lay there prong to make it appear as though he was there and that is when the defendant banks then walked back to the vehicle and he heard his car crank up and he saw it leaving on the role way as he crossed the street to run to his neighbor's home so going to attempt to murder a cross reference it it was properly applied in this particular case because  the defendants in this case clearly show their specific intent to commit murder in this particular case that cross reference is applied in cases like bart where the court found that the attempted murder cross reference was applicable where the did not even fired shots he merely made statements on a previous occasion about his intent or desire to kill someone and then was found driving the past a person's home with a firearm in his possession but there are many theories i think that your opponents have to contest what what you've just said one of which is going to the sufficiency of the evidence in the carjacking was this really just an attempt to rob them of money and only because the keys dropped and hopping over the fence and the lying prone did the sort of second decision to flee in the car her how do you respond to that look at three specific things first how did the defendants both defendants come to approach the victim is the hall it was clear on the record that these individuals were all strangers to one another mr howe testified that he first saw both in this as they were walking together down the street and he was still driving his vehicle vehicle along the roadway as he pulled into his driveway he says by the defendants both to finish or walking from his home it was only once he got into his driveway and got out of his car and as he was getting out mr hall was getting out of his car they both to finish ran up the driveway as defendant banks ran up the driveway with finish strong he has a gun in his hand the pistol in his hand secondly if you look at the fact that the weapon is in his hand as he approached they come up the driveway to a stranger with going out the only thing the only thing that the big that the defenders know the big them has in his possession is the vehicle and along with a sound system so this is a very noticeable vehicle once they get up to draw with a third thing look at what was taking there's no indication that there were any statements made as to what the dippin is want they didn't ask him to pull out his pockets they didn't demand money even after defendant banks chased the victim around the home bar shots at him and thought he was lying on the ground did he have the keys to go in his home if you want to get into that look at what was taking the only thing that was taken in this case was the vehicle furthermore look to the jail cost in the jail caused to finish strong stakes that he was going to get the rooms off vehicle that was what he was going to get from the carjacking s you do with the argument that your opponents were making that the placement of the guns in their car when the defendants were apprehended is critical here the government is not critical the attempted murder cross reference is applied based on the actions that occurred outside of vehicle when definit banks fired a shot fired shots at the victim paul as he jumped over the fence in order to obtain his vehicle the case law was clear that defendants in committing a carjacking offense must possess the intent to commit serious bodily injury or death in this particular case defended banks i did exhibit though those actions in that he fired shots at victim reference does it and reflect my lack of knowledge here does it matter that there is only one evidence of one shot being fired and from the revolver in my misunderstanding that was facts very credible in his description of the events when he of his carjacking that occurred on that day i would hope it was clear that the person mentioned description of finger banks was in possession of a black pistol that with that defendant fired the shots at him as he jumped over the fence and multiple shots more than one ever i don't recall just one or two shots or but it was the least was one or two shots fired you also ground and they came out with a metal detector to attempt to an attempt to obtain shell casings but they did not the government admitted it does not mean that she ok's and did not exist just because they were not about the testimony of the shooting that was the basis for the cross reference to attempt murder is based on the testimony of our whole if you look at this the nexus between the carjacking and the balance the shooting that occurred the defense counsel's samit the apple apple way case as well as the hairs case those cases are there's correct and and i thought there was evidence that that that revolver was found in a particular place and that there was only evidence that would suggest one shot and i'm  sure about either of those and if you could clarify that that would be helpful and yes more you absolutely correct that was that from albert hall was it shots were fired at him by the person   it does not matter which film was fired because if the basis for the application of the cross reference has to do with what the big them perceived and testified to as syncing which the court hav jackings that occurred in those two cases in this case there's not those are not the facts and the defendant knew the victim the only thing that drew them to the victim albert hall was his legs the g s three hundred and that was the only thing tak banks along the ropes out of the road when they first saw both saw victim home drive into his vehicle both to finish ran up the driveway towards a victim how as he got out of his vehicle the mere fact th also consider whether or not the victim but that if in it had an opportunity to remove himself from the crime in this particular case not only did the finished room see the gun prior to the initiation of the on carjacking calls to finish wrong talks about he was the one to do supposed to receive the room from the vehicle and he also boasted about how this carjacking would both his credibility in the in the community or the using that number she pulled all the calls associated with under their pin number that has to be in it before you make any calls that was not the only step she took the sure that it wasn't at the defendant she also looked at the numbers in using the same number she tracked the numbers call from the intake area the intake areas you need because pin numbers are not required to be submitted before placing calls but of the hairs testified that she match the numbers some difficulty with some of the ways that the district judge handled the bats and challenge what what is a court of appeals supposed to do then if i make yes it  depends on two things first the question is whether or not they believe this court has a problem with how the district court or whether or not district court review both reasons asserted by the defendants first being staring secondly the employment issue if the court finds that the district court properly review both reasons then the government submit that the third prong observe mr frey and he says i didn't observe him do it frequently but i did notice and i just thought he was looking in this in our direction that's what mr smith the palest say as the court made its room so the the two caused the crime in the specific intent to have the crime committed in reviewing the record in this matter to the extent  mister strong was involved in this case it talks about mr strong in the middle of the driveway of mr holmes home there is nothing in the record that indicates at what point in time mr banks pull that far  out of his possession and confronted mr hall with their firearm there's that in the record at all that mr bates prior to the action mr strong prior to the actions of mr banks was aware that mr banks possessed a firearm at all there is nothing that points to a specific intent that this crime be committed by mr strong whatsoever there was one shot according to the testimony in the record in that testimony was from mr hall that he heard one shot fired don't do throughout this this particular incident as it relates to the placement of the farm in the core there's nothing that indicates that the pistol that or the revolver that mr strong was in possession of as it relates to construct the position because it wasn't found on his person it was found in the court in the seat that he was actually sitting on there was nothing that indicated at what point in time that that far along was in fact fired if it had been fired that day fired mr hall said that he jumped over the fence and lay prone i'm just trying to add up whether there's a reason probably one shot that he got in the first time you know that there was actually an objection about that c he thought that's what banks was thinking and certainly that's not you can't speculate as to that you know i guess just ask is there any evidence about the timing of his landing on the ground in connection with the shot the i know the government's position is that he fill as if it were lying prone as if he had just been shot there were some contradictions about that sequence but what i guess i'm i'm only saying this because you said it's significant that the evidence showed one shot and right now i'm trying to understand why it's helpful to you that there was one shot i think if you look at a case like like the braxton case where you you can have actually multiple shots at law enforcement through a doorway and that is not specifically intended to kill and so our position here is that you have a single shot  and if at all and again we're not conceding that there was a single shot but that's what mr paulson but under the circumstances where you know he's some distance away moving if the intent was to murder there were certainly those opportunities much sooner than that and it simply it just doesn't make sense if i may just quickly on the issue of the career offender certainly the dorland martin cases control that were the qualifying offense was evading arrest but i would just point out that the supreme court has recently called for a resubmission of briefs in the johnson case as to whether or not the residual clause is unconstitutionally vague so that that is an issue that we have raised not that specific about johnson but but the residual clause in the the vagueness of that so