the court my name is lisa lawrence arguing on behalf of the appellant robert winston this appeal presents a very simple question but the sport is virginia robbery distinguishable from north carolina robbery if it is not do you still have an argument i do your honor and as this court knows and as the gardener car broke down the similarly defined north carolina robbery offense first we look at for some other that qualifies and the gardner court did not reach the second component of north carolina robbery which virginia shares whether or not robbery by intimidation is sufficient and virginia robbery by intimidation is unique and argued by me just let me say this i do want to talk to you about bat but i just want to there was a decision and macneil earlier this year and the government would allege that mcneil conclusively determines what intimidation robbery looks like and i would argue that virginia robbery is different than the federal bank robbery statute that the mcneil court considered and it's different in a very crucial and important way as mcneil court went into in great detail when analyzing federal bank robbery by intimidation the standard to meet this court's prior decision and garcia versus gonzalez and the supreme court's prior decision and lead a cow requires some intentionality and then virginia robbery by intimidation does not require any intentionality by the defendant is judge entirely by the victim's subjective response he think in virginia is truly subject that's one thing that sort of has me a bit of hope i did right here just subjective no matter how we did it was this subjective response might be some objective requirement i think the only objective requirement is that there be some after the defendant to which the victim's response is to so if there is no defendant and no act then that would obviously not  thinking this what is the act by the defendant is so ridiculous that nobody nobody would think that was intimidation except for the victim for instance he walked in the room and the way he had is here combed i could tell he was up to no good and i was intimidated well that's subjective intimidation that wouldn't suffice for a conviction in virginia would it what i think it would your honor in harris vs commonweal the court explain that there's no requirement that we look at the defendant's intimidating words or that the conduct be judged no way to mono by the way that i want to get this straight now do you think a person could begin convicted in virginia if the only evidence only intimidation was the only evidence was the victim says who was calling to the wrong side i think if the victim had a subjective fear based on some well i would argue in that case the defendant didn't take any sure because i've read those cases but the victim house really stand for a conviction in virginia could it if the only testimony was he walked in the room and i didn't like the ways here was gone did he threaten you by the way well absolutely not i applies when judging whether a victim subjectively experience fear and there's no objective standard of reasonableness and the court is clear about this and the supreme court the virginia supreme court and sutton versus commonwealth also pointed out again no authority in virginia in the context robbery supports that we didn't have any reasonable apprehension of danger or fear ok so you're saying harris is your best case then i'm saying it's certainly a good case your honor and i think they can versus commonwealth also makes the same point a more recent language in fagan but i think that the result is still the same that the courts are looking not approving whether a defendant actually had an intentionality which we could determine the way that federal bank robbery but now this is the accused rather than the temperamental timidity of the victim and i tried to set up that situation that to me suggests i know it's not clear i'm not saying you're absolutely won't it's not clear to me that is purely subjective o a defendant so that if a defendant does something that is objective really intimidating but the victim subjectively is not intimidated that doesn't make up the crime if there's just no objective you're saying your honor and i think that the distinction i would draw is between the fact that there has to be some object of action or word of the defendant there has to be some conduct that we're judging but then in terms of whether there is any intimidating still need the defendant to take something right of course still has me thinking we're talking about robbery yet we're not talking about trick or treating right right and so that's why i asked the question thirty i'm with you there i'm just trying to understand i guess i'm trying to understand this case on the border between subjective intimidation which doesn't equal robbery and subjective intimidation the doesn't equal robbery and so obviously one difference is the guy doesn't steal anything but i think a very different your honor would be the clear pickpocketing case which is exempted and separated out from virginia robbery where the victim might not even know they've been robbed or you let me it's not rob a pickpocket so if there's no interaction no interaction between the victim and the defendant at all a person action where someone takes the person underneath  chair then that's that's a clear distinction that's carved out from virginia robbery but the way that the courts have interpreted virginia robbery if there's any interaction essentially between the defendant and the victim and the victim subjectively experiences fear all that oh it's a little more and it's a little more than that i'm afraid i mean i because in pressley the court saying it page three eighty six where the defendants conduct amounts to intimidation or is reasonably calculated to produce  person painting you see what i'm saying over reacting i have to be something reasonable i do radio in bed with the press the court does try to work and some reason on this i think particularly given the facts of that case which were frankly on the borderline of whether turn to that so i think that that's the way the court should primarily dispose of this case is to say that under the jones versus commonwealth case and under the supreme court decision for in virginia and that matches the north carolina supreme court definition for robbery there no distinction between north carolina robbery and virginia robbery and on that basis on that basis alone the same analysis from gardner would require the court to say that virginia robbery can serve as a violent felony the jones case which involves conduct where the defendant came up behind a victim had a person under her arm and in the court language was i think your turn around by pulling her on the shoulder that was the only offensive contact con tact in that case it's indistinguishable from the state versus eldridge case which the why certainly think that the court can rest entirely on the forest argument your honor because i don't think that there is a distinction between the two and that we would never have to reach the intimidation inquiry if the court does find some distinction i think the intimidation inquiry has to be considered and it's not completely well my next best case is it's a discussion of the amount of force that's required it's that the actual facts do not end up supporting my position but the discussion in henderson which is a quote that violence used does not need to be great or cause any actual harm and then we're relying again and falling back on the virginia supreme court decision and maxwell versus commonwealth but just cusses the underlying fact that the need room doesn't moncrief tell us that we've got to look at the least culpable conduct that  prosecuted so it isn't just statements abstract statements and principles of law sure it's going to look at what was actually prosecuted and i so i understand your argument in german so i think you've got a good argument jones but what else anything other than jones i don't have a grief for that to you as culpable conduct that would be prosecuted in virginia but would constitute robbery but that would not in a generic federal crime no but i don't think that the cour should entirely discount the way that the court in henderson versus virginia described the standard that it was applying again and that and setting back to jones that the violence use is not need to be greater cause any actual harm so i would submit that the case on the facts the decision on the facts that i have to offer to the court is only the jones case but that's been repeated by several other cases the mil's case and also the henderson case so it's not a complete outlier that same reasoning has been referenced but you don't want no i don't want the fide state of law to the conduct in jones and it's indistinguishable i would submit to the conduct in state versus alters the north carolina case and while that's only one case the gardener court only pointed to two cases and they were both unpublished decisions at  least the jones versus commonwealth case is the published decision from the virginia court of appeals so i think that the court can certainly just look at the forest clause and find that virginia robbery by force does not match the standard for the aca forced pas and use that as the basis and never reach the virginia intimidation moncrief is warning against is living in a world of complete hypotheticals where we would if i only had the supreme court decision from you know an old chestnut from the eighteen hundreds or the early one nine hundred that described a standard but it had never been applied or discussed by any other state courts i would agree that then moncrief my caution against the court resting its decision entirely on that so you're saying really one case is snuff because it's a luster to the fact that the least culpable conduct that in fact was prosecut conversation is that whether or not the offenses committed by force or threat or intimidation in any case the offense has to overcome the victim's will and whether that force as i said is is an actual force case or an intimidation case or a threat case and any situation under common law robbery for the victim's will must be overcome i think that an associated idea that is the heartland of the government's argument in this situation is that all intimidation cases are not limited to those cases that don't involve any physical force so for  example the slight force argument that appears in some of these cases argued by the defense counsel in this case are not necessarily qualifying cases because of the amount of physical force in the physics it's violent your honor so so for example if if the if the robber pokes somebody in the shoulder and the victim is persuaded and induced to release his property against his will you're not tire you took what about violent force and the are you alleging that in the jones case that there is violent oars by simply taking somebody grabbing someone's shoulder and taking physical injury i think in fact and with all due respect in the in the case that was cited in the in the north carolina case i'm really not quite understanding why pushing someone into a bunch of in virginia is more than the force and that is required in north carolina that you have to do that because if this is if if the four session required in north carolina at a minimum is the same minimum virginia why would we be limited by what we said about the north carolina forces necessary well first of all i would point out that the court itself in gardner pointed out that the virginia statute and the cases interpret in the park in new statute were not relevant to the court's decision in virginia so i think if the virginia courts have interpreted the virginia statute differently then that would be a sufficient distinction to know what we have but we have to look at it to see what force is required for our purposes whatever they say in virginia about summarizing one of the cases or don't we have to look at what is the minimum amount of force that would be required to sustain that conviction under the ginia charge and see if that sufficient and if you've already decided is some level of force in a similar north carolina statute is not sufficient for the four shoe bomb went on a federal wall doesn't that tie our hands i understand the court indicates that the force required under this began you do virginia's dad to accommodate all provision is more then that required in north carolina and it is and my position is that the force required under the bridge in new statute is always for sufficient to overcome the victim i don't know what that means though i don't know what i don't know what that i mean you tell it tell us in the context of jones because i think jones really is the around taking her purse and they said that that was enough you know how does that meet the johnson one requirement of violent force well again i'm fairly certain i think that they also said in that case that the defendant resisted the robber by crooking i can't remember if it was her wrist or her elbow as she tried to keep her purse she tried to keep her purse to the resistance that the victim presented in the face of that robbery in the government's view given that ultimately the robber overcame that he overcame her well the force was sufficient to overcome her well and therefore  resisting the physical actions of another trying to take property away from them against their will well there is the possibility of physical injury which is johnson level force which on fire so talked about substantial degree of force strong strong physical force yes and i really would emphasize in the government's view we don't think the johnson standard should be overstated it is simply a force possibly that could cause physical pain or injury well and so worse would be under that i mean i think johnson trying to make the point that it can't just be ok if you tapped me on the shoulder and i thought you were right you look frightening and i went back and hit the ground well under your analysis you're saying that's force capable of causing physical pain because it did it it's not result oriented it seems to me it has to be something i think johnson is trying to say we don't want to sweep in every single act of force here it's got to be something that's violent has to be something that really puts the victim in danger as opposed to just the average well johnson is also saying in the case saying that it's not just literally what we would consider i think in conversational terms violence but anything that could cause pain and other words a slap in the face could be sufficient to cause johnson level injury so you really  oh you really think yes your honor i think that in the context of robbery it's especially important to focus on that and not to overstate that standard that's articulated in johnson but the other point i wanted to make regarding the po shoulder case which i really think it's critical to this argument is that it's not necessarily the physical force of the actual force in some of those poke in the shoulder cases that causes them to be robberies in virginia and therefore johnson level force cases it's the fact it's not the physical force that was exerted in the pokey if there is question are you going to make any effort i thought you were going to make an effort to distinguish the force required under virginia violation is being more than the force in north carolina which you don't think that's the distinction i know you die happy with the north carolina decision apparently but i thought you would try to distinguish what virginia requires on good force here compared to what north carolina required but you don't you don't eat your distinction is just we need to reconsider that any amount of force could be that just pushing the person's hand in with the cigarettes the state versus eldridge if i recall the case correctly was sufficient that that was the losing argument now how is your argument different from the losing argument in not garner because my argument your honor is not based on evaluating that case in terms of the physics of the physical force it's because in the context of robbery if that slight force or that de minimus force did in fact overcome my property because i got tapped on the shoulder and i feel that i can't resist or i can't overcome the tap on the shoulder i give up my property because implicit in the tap on the shoulder was a threat of worse to come if i don't comply with the robbers that's why that's a robbery and that is why that she was in complying no there was she wasn't giving up her purse he she resisted and he took it from her and so there's no relinquishment of property by intimidation and jo and that's why i'm jones i agreed with the with the question that in fact the resistance there was sufficient to meet the johnson standard because it could result in bottling injury it was a lot of hunching over survive which could have resulted in bodily injury so i do question if if i'm following you you hang your hat almost entirely on this notion of overcoming the will of the victim so those that ostensible victim who fights off a robbery that attempted robbery wouldn't count because an attempted robbery in which the us than civil victim successfully fights off the robber hasn't had her will overcome so what do you everything meets johnson level force perhaps on the shoulder pushes it's certainly the n h l it actually sounds like you're collapsing intimidation and nonviolent force into one sort of category robbery is robbery and everybody's afraid when they're raw and therefore that would satisfy johnson one i don't mean to reduce it you know to an absurdity but that's really what it sounds like you are i do our position is if it is rob if it is a virginia common law of robbery then it's either a robbery by violence threat or intimidation by definition b response the judge said by your silence i think that the amount of force used to commit a virginia robbery is no greater than the amount of force that is necessary to commit a north carolina rob that's what i hear you saying by your non responses the judge should i'm not sure that i can point to anything that says that virginia common law robbery statute definitively requires a greater level of force but the virginia case says that discuss virginia common law robbery as judge moon pointed out in his opinion refer to violence the court and garden are pointed to two north carolina cases as we've discussed that discussed actual force being something less than the court concluded was violent force i agree with judge moon's conclusion that in virginia in the cases interpret in virginia common law there weren't any cases that made those types of conclusions in analyzing the level of force sufficient to sustain a virginia commonwealth robbery and then beyond that our position is that as i said if the force was sufficient to overcome the victim's will whether it was actual force or intimidation or threat then it must be johnson level force but  me and use the word violence because that's how the definition of robbery is understood in virginia about what she can see her right if she tries to write that as an attempted distinction i think that's right around her but i want to point out one thing that i think is becomes very clear when you listen to the government argue about how they think this court should understand johnson one which is of course contrary to how this court understood johnson one and the gardner decision itself but when you listen to what the government thinks should be enough for johnson one force which i believe her exact words were if there's any risk of physical injury you cannot help but think of the reasonable clause which specifically was found to be unconstitutionally vague because they relied on that same line of reasoning just and you think that presents a potential risk of physical injury to somebody else that that's what that cause held that was just found to be unconstitutionally vague and that's the exact way that the government is asking this court to reinterpret john someone in this context and i would strongly caution the court against  changing its clear line of precedent this comes out of johnson one from many different decisions that as a capstone at least in the robbery context in the gardner case  that there is some kind of violence or talk about violence force in virginia cases that just thing that argument would be an attempt to distinguish it from say the north carolina law but there's just  compartmentalize them as neatly as some of the cases seem to suggest that intimidation necessarily bleeds into force so you can't just segregate force  so you have to consider intimidation as an element of or as a circumstance of these other robberies where you such as jones where you're talking about course how would you answer that today we have to understand what force means and so we can't get away from the fact that we have to understand what is the level of force required to commit a virginia robbery to understand and apply what intimidation would mean a threat don't go along with intimidation best the best best the question is on the stand that would be a robbery by intimidation as distinguished from a robbery by force and so we have the intimidation bucket which we discussed earlier and there are reasons why i think the purging is standard fall short but when we just talk about the standard that's sufficient to commit a robbery by yours the bank your answer i don't know where you think that course it would be based on but somebody just doesn't like the way you think your answer was always going to who i don't think but then when you look so you say that's not completely successful what about the fact of intimidation either including some objective standard that people would think is at least subjectively so simple too they just force or threat of force or there's some small degree of force that bridge over into the possibility of greater force if you don't go along with the that we have to keep in mind with the garner court broke these out as distinctive inquiries and they did so for good reason because in a case such as jones intimidation isn't discussed at all we have a shear force situation that's all that the scots bear and then  we look at a threat of intimidation i can see that there could be a case where you have a small amount of force when combined with threatening words and conduct collaboratively looking at the lowest level required the right  that could collectively lead a court to look at intimidation but i do think that there are separate one can't necessarily and i don't think dacian can compensate for the de minimus level of force required to commit a virginia robbery by force it's possible that a demand in this level there's no force required for an intimidation to make an intimidation case so therefore you can't consider any force in your analysis of washing hard for him well it is certainly the case that no force is required and i think the  of that also your position that no amount of intimidation can increase the degree of course i think that's correct your honor i think forced as described by johnson one as it applied by this court since then requires actual strong violent what about a guy who has his hearing him in a jacket pocket in a posture that objectively and reasonably could lead one to think that there's a parent good in the pocket we would you for that in your spectrum and i think that would fall under the threat of force potentially i think that's how virgin your court would probably handle that but it's the threat of force and then they would look at whether the victim was in a subjective