morning if it please the court my name is richard cornell and c g a counsel for legal and banks let me start by saying what's not in dispute number one banks attempted to murder gilmore on january sixth two thousand and four in las vegas nevada number two banks was a member of the rolling sixty's crips on that date gilmore was of member of the valley view crips and number three the rolling sixty crips are a racketeering enterprise within the meaning of the statue of question in this case for jury instruction purposes and also for sufficiency of evidence purposes is did banks attempt to murder gilmore for the purpose of maintaining or increasing his position in the rolling sixty's council i'm sympathetic to your position on that but it looks to me is that we'd be setting up a circuit split that all the circuits that have ruled on it say it only has to be among the purposes not a principal or primary purpose is that true so that is true the second circuit was the first circuit really to speak of this issue in depth in concepcion and all of the circuits are pretty much more or less fall in line and our position is if that's the case if we're not going to set up a circuit split but we're going to follow concepcion then at best language for the purpose of nine hundred fifty nine and means a violent act that was an int aspect of membership that the defendant's general purpose was to maintain his position in the enterprise and that he committed a violent act because he knew it was in expected of him by reason of his membership in the enterprise as i that's the key language if the court agrees our position is that instructions ten seventeen diluted the government's burden of proof because there's nothing in there about general purpose there's nothing in there about integral aspect of membership and what it actually says is that he did what he did at least in part because he knew it was expected of him in other words under these instructions if the jury found that the enterprise motive was secondary or incidental the government met it gang right our position all along is that this is a state court case and bank should be in the nevada department of corrections as we speak there's no question he's guilty of an attempted murder now are the position that i'm arguing and maybe i'm the only person in the united states who believes this but the language for the purpose means for the purpose at worst for the purpose i take it the distinction you're drawing his for the purpose rather than for a purpose correct or and how do the how did the jury instruction read it didn't say for the purpose or for a purpose or any purpose instruction number  seventeen and i know it's in the excerpt but the language that it used was that he did what he did because he least in part he knew it was expected of him you've lost me i thought your argument was a very interesting one when you say the statute says the and the jury instructions had a that's what i got of out of your brief but i don't understand what you're telling me now i would expect that you would know what the language is so the jury instructions to you could help ok and the argument of why this has should not be a purpose here is what instead of the purpose which is in the statute here's what the instructions said and it's at page ninety or as to the fifth element the government must prove that at least one of the defendants purposes or motives in committing the offense was to maintain or increase his position in any criminal enterprise in this case the alleged enterprise rolling sixty scripts it's not necessary for the government to prove that this motive was the sole purpose or even the primary purpose of the defendant in committing the charge you need only find that it was one of his purposes this element is satisfied if the defendant committed the charge of violent crime at least in part because he knew it was expected of him by reason of his membership and you what you're saying is that the statute used the word the correct and that this is inconsistent with the statute that is our position it looks like the legislative history that they relied on was an absence of discussion on what do you do in a mixed mode of case well an absence of discussion means an absence of discussion in a way to me it's a now it's just a absence of evidence this court doesn't countenance absence of evidence to meet a jackson versus virginia standard how can we use an absence of discussion to prove what congress was thinking over little different situations because in a criminal case the government bears a certain burden of said for the purpose well discussing this probably the answer in all candor would be we don't want to interpret a statute to create an absurdity or create something totally beyond what congress intended  most times we do what we do or not most times but many times often times we do what we do for mixed reasons for mixed motives and it would seem therefore that if we're using language for the purpose a reasonable interpretation would be the primary purpose and i would agree with that i think that's a reasonable read of the statute but secondary purpose incidental purpose i do not believe is and a reasonable read of the back again the basic plain language of the statute for the purpose now and really this becomes important in this case because of the factual background that's brought out in the record sometime in two thousand and three and i'm not real clear when from the record gilmore's girlfriend called banks a crap is a very even salt in the rolling sixty scripts language and when gilmore wouldn't correct the situation on demand the custom of the sixty's was to retaliate violently against the offender and this one when banks attempted to do so during a dice game gilmore wrestled banks to gun away from him and right exactly exactly but what happens between the sniper shot and the insult is this violent pistol whipping and putting in a coma could you could you put a little more light on how the purposed which suggests singular or at least primary turned into a purposed in concepcion i frankly did not fully understand the exposition available in the street frankly i mean maybe that's mr marche argument because i don't understand it either what happened during jury instructions is that this instruction seventeen that i read was proposed by the government defense counsel objected government said no this is consistent with concepcion concepcion what objection did you make to the instruction to the court and he well first off i was not the trial counsel he was you as generic counsel correct  instruction our laws clear is playing fair and if the instruction mr defines the crime and lessens the government's burden of proof the court will reach it through under plane air we do have exception of course of playing a rule you may well qualify if i may in a few minutes fuck about the allen charge issue as well i'm going to submit the other two issues on the brief but the allen charge issue really flows from from the purpose issue because even with what we say is th diluted burden of proof the jury almost tongue in this case ninety three for conviction which is to say initially three jurors thought that must of thought that the motive in this case was purely personal the jury twice told  was deadlocked on two different calendar days the trial court never asked and the jury never volunteered that it thought it could reach a verdict through further deliberation and we submit that the court's actual instruction which the court will find  pages one seventy one through seventy three in my opinion was more coercive than the circuit proved valid instruction of seven point seven court told the jury at that point so many words that they hadn't been deliberating long enough to reach a decision and that quote unquote folding their arms and refusing to discuss the evidence was not what was expected of them and i have to take issue with one thing in the red brief that i did in the gray brief after the jury was sent back there was discussion amongst the parties about substituting the tape that was in evidence for redacted tape but i don't see anything especially one seventy five of the excerpt indicate that the jury specifically asked for that said a specific note saying we want a that that instruction was every bit as course of as the defective ones in the man and i had trouble seeing what was the matter with the instruction the problem with an allen charge instruction is that at least theoretically  it may tell the minority shapeup lot of people just as smart as you think the other way if they're just a couple of you consider that you may be wrong so puts pressure on the minority to go with a majority that's the theory for what's wrong with an allen instruction and this one just tells them look you've only been in there a couple hours that's pretty short time for a case like this you're not really ready to be hung i don't see where that tells anyone to change their position well had the judge not knowing what the breakdown was i would probably be forced to agree the difficulty i have nine to listen to the three is much is it tells the three to listen to the nine it just says they have to talk to each other right well and where is the evidence that they didn't do that i mean for all we know we had three jurors who understood the him out of time and  n evidence very quickly and jumped right to it and said look look at all this evidence look at what gilmore said it was by the time of the sniper shot it was a personal beef between the two of them and a story this is a personal on the other hand i really have trouble understanding concepcion if looks like they just ignored the word v and i can't quite understand their discussion of legislative history i'll try to walk through it and obviously the other two or three sort of looked at it have done the same thing and followed concepcion and it would set up an inner circle split they looked at the language of the purpose to maintain  increase a position within the enterprise and they said that they needed to look at the legislative history the legislative history of my car is that it is meant to compliment rico it's supposed to be a remedial hear about the legislative history aside from all the things that justice scalia has discussed and that so many opinions and in his book a matter of interpretation is a criminal law you can expect  criminal defendant community to be reading u s code congressional and ministry of news that we require that they read the statute or act in parallel if they just don't read it right that's all well obviously what we did here was we looked at concepcion and we drafted our jury instructions based on that because that was the law on every circuit that i make really ask you how it's defensible since the word is used in the statute and the answer is there are other well in mixed motive cases we have to deal with this issue and if it was the government's burden to prove that it was the only purpose this guy had such a strong revenge mo on a ton of time so it is one of those where it's a general mix mody this is a kicker that goes out the top like three strikes in california if you get there you're going to go in for way for a long time so why would it be a mix motive case the statute says the mixed motives is where it's a purpose i'm having difficulty seeing how either the second circuit did or we should interpret the to mean a when it's so the purposes just like the jury instruction here that it's a general purpose and i think that's what the second circuit meant by general purpose by the way is that it was simply one of the purposes of jury instruction to use the word general and it didn't need just sort of the reason for doing it even though there might be other other motives for being there and you said it doesn't ask be the primary purpose so his major purpose could have been i'm going to get that guy you know by the way he helps me out with the gang statue wants to get to this that is that's the context the statue is trying to get to what the statute is trying to do is to federalize cases where people who are in these violent street gangs commit acts of violence like here with  purpose to maintain or increase their position there's a distinction to be drawn though and i think the statute draws that it doesn't just say if you commit any of these crimes and your gang member your sentence is a lot higher what it says is if you commit any of these crimes for the purpose of advancing your position in the gang your sentence is a lot higher so it's not like a special  all gangbangers that they get hammered on the sentence and it looks like that's how it's used the way the jury is instructed it's not just the sentencing enhanced it's the only way we're in federal court and the government doesn't take lightly which cases it chooses to bring under this statute certainly shouldn't because it does have this burden of showing that it's at least one of the purposes if it's a gang hit we'll next corner you don't own  corner you're selling dope on this corner you're interfering with our gang i would think that it would be the street down the middle federal prosecution in this case this was one of several dozen members jones case which is cited by the defendant and there's a footnote at the end that says well we can always retry this case in state court that's not the case in nevada we have a double jeopardy issue if we will try to go back and and try this defendant for the underlying state charge is an element as it was here we have to show state attempted murder and state aggravated assault and it cannot be retried early so it's not really our problem though is that i mean if you swing for the stands and that because of the remedial purpose the legislative history and its use point out the absence of any indication to the contrary that one of the purposes is enough the general purpose and i believe that that's what general purpose means is one of the i'm trying to read it like like regular english and i'm thinking there are some things if somebody walked into my office and said how can we read that mountain of boring looking paper and i said because it's my job and if they ask me another day i'd say the same thing that's that's why i'm reading it it's my duty to have there are other things where somebody could ask me and i could give them three different answers on three different days and they'd all be true because they really do have multiple purposes for doing it this seems more like the latter and i would think that and it's hard to see where the gang purpose is a real big part of  it looks like just personal revenge for twenty reasons not related to gang activity i'd say even under your first hypothetical a clever defense attorney could say you know that it isn't just because it's your job that you're looking through that boring papers that's because some time a few years ago you decided that the president appointed you you wanted to be a circuit judge and come down from alaska and do this just in the same thing fancy your words all right well here the fact that the victim's girlfriend or he overheard what he thought was a slight use the word crap which actually was directed at somebody else that's what started this whole thing whole thing going and if we had to prove it was the only purpose we would not have had a chance here we wouldn't we want to broaden if we knew going in that that was what was required in this type of case we look at the case law when i when i fly back i'm not going to be working i work on a trip down i'm not going to work on a flight back i'm going to read a mystery story on a flight back the only reason that i will be reading the mystery story is that i'll be sitting on an airplane hired on a long airplane trip so you could say the only reason that i'm doing it is my job but my purpose in doing it well not there won't be any job motives to reading the mystery story why isn't that analogous to this case no doubt the only reason he's on the roof you only reason he's in the situation is he's a rolling sixty script but his purpose but that's no more than my reading the mystery story on the airplane from back to his purpose has nothing to do with being a rolling sixty script it's just to it and he would we had two members of this gang former members of this gang talk about what they would do if they had been called the crab or thought they were called the crab one said they would spit in the other person's face the other said that they would have to take care of it and there could be anything from beating a person up or all the way to killing and i don't actually like to focus on the language of the statute which i think that's fit here which is the to come back and just using the statutory language purpose but instead there's added on to this it doesn't have to be the primary purse and maybe oh by the way  like this where there are some other motives or there's really bad blood between these two and if they didn't the gang thing was set aside it would be a surprise they got sniped i'm just wondering if  issue of moving that is now there's nothing as i understand it in the statute that tells us there's nothing in the legislative history that tells us according to judge kirsch it's just we don't think that's what they meant that's all but more than that in that in looking at a statute that is to be expansively read as opposed to other criminal statutes the fact that this is a remedial instruction is very clear and we were just trying to follow the language that come out of those cases and from the other circuit and say one of the purposes i just can't i'm not faulting the government it's everything you had before you that time was going your direction from any circuit district court to go stray bad but the difficulty now is before us so the argument is that that was wrong and it should have been the how would you argue that it's not clear it may be error but it's not clear under our statute have looking at that review how would you argue that it's not clear well i would argue that if it just left the word be in that th would be very confusing because the jury could read the to mean one of three things you could read the to mean only it could read either being primary and it could read mean to be one of the reasons and given those three choices the  even under the plain language of the statute he had to do it to increase or maintain his position within the rolling sixty's he had to do that to get back and you know the really the defendants is i recall from trial the defense whole whether the jury instruction incorrectly states an element of a crime and as far as i can see tell you're not arguing that we just review under a law no for plain error in your brief  second i think that that course discussion with counsel for the defendant i think it's accurate that we look to me like each of you conceded the other sites case one standard of review i don't know that we you know i looked very closely at the standard admission of evidence and also on the i was thinking you might have done it on here i was thinking you might have done it on purpose because you didn't want to lie on a review you wanted to get us in line with the second circuit so your real briefly it occurs to me that quite possibly indeed quite probably what congress intended by the specific language ninety eight was to limit federal jurisdiction to guys who really deserve the severe increase penalties such as mr concepcion such as mr fernandez who was the leader of a rival faction of the emmy and who had didn't do anything per for personal reasons per the fact in the published opinion so counsel maybe you could explain to me your position on counsel's i think argument to that because that is i think has weight there is nothing in the legislative history that tells us whether it's the or a council says and that big but we do have history that they're trying to make this statute like rico and rico courts generally across the united states have been very expansive in the language and i think that's an argument with weight and i'd like to hear your response to it that does sound like the best argument i've heard and  position as we speak right now and by the way i do want to know one thing factually is after this pistol whipping incident that puts banks in a coma there's no evidence that anyone in the sixty's even knew anything about the incident