docket and there's a lot to one pack in this case so it would be helpful as you're discussing it if you're discussing a particular camp just don't tell us it's count ten you might tell us which defend applies to and what the charge was there because there's a lot of players in a lot of campaigns so with that ms wall bomb you'll hear from  rico conspiracy the racketeering activities need not occur you agree with that right so you can have an agreement or you can have an agreement to commit and so the point of the racketeering conspiracy i get here you charge that you did commit the murder not you obviously but the defendants actually killed somebody but you by by virtue of the way you framed this that you know is an element that you have to prove that the crime of violence occurred and that's just not true with the rico conspiracy because you don't have to prove any activity took place right is just the agreement to commit murder would be sufficient to charge the aggravated form of rico conspiracy that utilized here so what what am i missing there not necessarily your honor it would with judge when he and i we agree we're going to kill ten people and then it turns out after you catch us on a wire agreeing mitt going to do it we get arrested before we actually do it you have a rico conspiracy of sue meaning you got everything else that goes with rico but you have the conspiracy and the violation on which it's based is murder it just never happened and that's exactly what can't be a crime of vio so i that if you could help me i don't want to take up all your time because this isn't seem like the most interesting issue but why why is that not correct well your honor so st of all i think the basic premise is correct not every aggravated rico conspiracy would be a crime of violence but since rico there are two things in play your st a print the imap a switch say whatever increases the statutory maximum becomes an element of the since these are charged murder they are elements of the crime once they're charged proven and here found by a special jury verdict that the specific crimes were committed math increases a thetan becomes an element of the cot and that that right understand that that's that's there is a factual difference between an illegal difference between that and generic rico conspiracy perhaps but in this case for instance there are five separate murders as special sentencing factors was the jury instructed as to the elements of murder under virginia law as part of the elements of this crime yet your honor and moreover are the elements of murder as that crime is defined that under virginia law or those instructed as to count one that the jury must find those as independent elements themselves didn't start off as the th circuit did in ross in a in a kidnapping case and because the additional facts of government had proved under virginia law to increase the statutory maximum was murder and because this court upheld and united states seems very strange because because rico is conspiracy but as far enough and ross has made clear the conspiracy is not be a crime violence is that the pole position when there is a nd type of crime conspiracy does not require any over that or specific acts so the question is what did you have to do what if you did let me put it this way if you off under the categorical approach then what is you honor let me let me put it this way others there are other standards rico conspiracy without the aggravating factor has been found not to be a crime of violence that is correct this is a different version of the rico crime just as kidnapping the conspiracy is converted into a new form of offense that can itself meet the th clause and since there are completed murders here the fact that there's other theoretical ways that are aggravated rico could be committed but didn't result in it being a crime of violence that doesn't undermine what happened here that it was proven that the crime of violence under under a friendly and that this and that at the end of the day they were charged with the jury was instructed on the elements of the original murder and they specifically found in conspiracy that was qualify the crime of violence your honor given my mouth i'm happy to answer any other questions on that point otherwise i think i would just reserve the remainder of my time to answer defendant argument point while ob the defendants did not present any through counsel present any jury instructions but the government did and the government presented the wall jury instructions to judge davis they present jury instructions that instructed under eighteen two hundred and fifty three which is a different statute as well as eighteen two thousand two hundred and eighty two mr bears witness what we understand we understand that there was an error there i think the government acknowledges that the wrong statute was cited as such as i recollect from the record there was no objection the half of the defendants were th circuit and said no no no that's not right whatever you might say about the st three prongs of a plane or even if there's a grand jury failure to indict you still can look at the i mean we we often say now maybe it's not right i can see that but we have a wealth of case law on the th circuit says you can't waive the standard of review right and so will the manner in which the standard to review different very different crimes i mean that is a much broader crime than the one for which he was a doctor before it has all kind of standing and all kinds of stuff in there so it's two different things here sean can i just get you to respond to that so not exempting the argument there can you know better stand because god self was a case where the grand jury it failed to make a finding on an issue that was given to the pettitte jury so help me understand why do not at all hope that again let me be very clear i don't hold that against you what i woulda we're going to talk to your colleague on the other side about why this argument what may but i don't hold it against you that you're not familiar with it i  wootton that subject cute to at a minimum plain error review for harmlessness which would be your bird in fact that in that the exact result that the example subject to trial the supreme court's has one of those near one of those statutes on constitutional so one becomes invalid then we can then we can launch a new harmless review harmlessness review but that's not what a constructive amendment is through jury instructions that construct an amendment as you changing the bases of the indictment bases of conviction or change right on if this if this were for floor rest and you only had the one predicate i think that's a winner for you you're sure but that's not this case you have a nd predicate or there is no constructive amendment why didn't the that seems to be on all fours with the supreme thank you your honor may it please the court your ataman representing appellate symons i had prepared some arguments on the sufficiency of the evidence and i would just point out that of the five by carr parents that were constructively amended we have substantial challenges to the fish and sea of the evidence i count eight and also on count twenty seven so if there is time remaining after i have responded to the government's appeal i'd like to double back and sort of address those  those questions with respect to count one the rico conspiracy i would point out to the court that the conspiracy that was charged by the government did not i give you a little extra time here i'm not sure who represents who but i do have some questions on the sufficiency with regard to two particular counts twenty two and twenty three the attempted murders of land as and i think the other guy's name was nino so some point if somebody wants to address that because i want to be asking the government about it not what happened that apartment complex i don't i don't mean to cut you short here but we know what happened can you tell just about why or why not it's attempt on your virginia law i'll be having to address it but with the court permission i'll let mr pearce to address that i yes i can't really judge i can tell you that taking twenty two that's what nez the evidence they are aside from the mains rail question they have to have a specific intent to attempt murder but it's side from that they need to nina in his honor judge regions correct in that case they got out of the car they got out of a car and they knocked on the door and then you know didn't answer they drive away and then you know call so they need knowing i was there but they didn't he was there and they never go back that's insufficient because if you look at the jones case they say driving to the side of the crime robbery where or with an armed with a weapon wearing a mask for lands you know that mean like they don't just drop they're like big they show up they bang on the door they've got the guns if that's not enough you know that just basically saying you gotta shoot the guy before  subdue him something more than simply knocking on a door that's probably more like you know all right thank you mr bear's all right we're back to you ms taman and we're going to give you a few extra minutes thank you sir going back to the government's appeal and i had just started to argue that the sentencing factors were actually charged outside of count one the understanding pretrial was that they were not elements of the offense we moved to strike them as surplusage and was denied but there was no suggestion at that time that they were elements of the offense and i would point out that there is no reference to nine hundred and sixty three dollars any at all in this indictment  one of the things that's really important is that at the time of the charge conference so during trial but before the jury was charged the topic of the dimaio being pending at the supreme court was much discussed and and considered and it was at that point in time that judge gave us wanted to confirm that the government wanted to go forward with the crime of violence residual cla instruction and so in the context of that judge davis spoke to government counsel about what would happen if the maya came out if the supreme court affirmed demaio and the residual clause was no longer available and at that point in time the government argued that each of the ninety four dollars c counts was charged was tied to a high park crime and also to be in coate conspiracy that's charged in count one and it was their position that if the mind was decided as it has been that they would still be able to say these night when for seat counts because each one was tied to a by car crime and so now with respect to count thirty the by car crime was struck down and the government's arguing for the st time that this is an aggravated rico conspiracy when she was specifically asked at the charge conference what would happen if the jury only checked the rico conspiracy and not the viacom murder she responded that will probably lose that count understanding that the rico conspiracy charges and count one was not a crime of the three elements of the rico conspiracy that the judge instructed the jury they need to find were simply the agreement between who are more people element one moment to do that the defendant to liberally joined the agreement an element three that the defendant knowingly agreed that a coconspirator would commit at least two over acts at that point in time everyone understood that if the object of that agreement was a murder under virginia law that then the maximum penalty would be life imprisonment and in this case i would point out that both mr simmons and mr mitchell did receive a life sentence on count one which has not been challenge the court then went on to tell the jury specifically that the essence of the offense charged in count one is the agreement and specifically told them that no overt act was required and so the issue before the court is that really whether we should be using the  modified categorical approach under either situation the government's appeal does not prevail they do not prevail on this appeal the modified categorical approach would permit the court to look at the indictment and also the th i would point out to the court that you know none of these crimes of violence were mr simmons actually present there was no situation where he provided firearms and there's really sparse temblor it was after they left mr simmons residence that those people traveling in the car had a substantial change with respect to their specific intent when they left him they got the specific direction that black people were not to be harmed and so when they then leave and are traveling there's no communication back with mr simmons they're on the phone with nino and black oh but not on the phone with mr simmons and there was no action that mr simmons took that sanctioned their change in specific intent it's quite the opposite after they shot miss parker morris who's as them in the briefs the next morning mr simmons was confess that i don't have it immediately call but my recollection was that simmons told him that black black over blanco avaricious name that he had a vest on but they were mashing the gas on everybody else in you seem to say that when they got something out of him that constituted admission it was that he had given clear direction and that black was people were not to be harmed that this crime was not permanent was directed or sanctioned in any way by h who were all under this person's you know who they were at war with at the time if those people didn't flip then they were to match the new with multiple interpretations of what math aghast that of men but there was always the conditional it you start by going directly to count twenty four and tell us your view of why the attempted murder of nino is valid and what why isn't that just a important in jones is brandishing a gun if somebody is required because robbery requires a threat and so that's that was focused on that virginia law has been very consistent but tempted murder is when you do something more than mere preparation and including getting into a car with loaded guns and going to look for people in the case of nino they got out of the car and they knocked on the door and he saw them but he was did not answer the door to avoid alerting it both of those cases thirty four dollars men get into a car three of them have loaded weapons they have instructions to kill people and they go and they think it's a look for them and they are calling around trying to lure people out under the virginia law that is more than sufficient to establish attempted murder and i would and and obviously as that was the st person who opened the door when they stopped and it was clear that their intent was to kill people because she was shot six times and jeff they will and when taken all together the jury had more than sufficient evidence especially when there was no objection to the to the instruction for this  plane there was no there was no there was a direct act of instruction from the from district court in terms of the attempt liability and there was no objection to that another point of my name on the top of this number twenty seven event i believe was a question or be killed and that was the several well before december one step so that's sort of the background and given all of that information i believe there is more than sufficient evidence and something and overt act on all of the  people and they were armed and they had direction and so it was aiding and abetting liability for mr salmon and he can he did exactly what a person in a nice place to do so he gave the orders and he stayed behind so you wouldn't get arrested because he would be about all so there is more than sufficient evidence on the count your honor if i may turn very quickly to the various argument your honor i would this is the government the government did not quite hot and we did government's evidence and theory never changed and ultimately the defendants were kicked committed were convicted of by far a thought there was no fatal barrier they were convicted of what they were charged up and no well i thank all counsel for their arguments in particular i want to thank mr beers and miss taman because your court appointed and the court as of deeply grateful to you for the devotion of your time to handling cases we could not do what we do without your assistance so with that as you know we we come down and greet you with the th circuit we can't do that today so consider this y