at this time we'll hear united states versus jo jones what qualifies as a crime of violence in this situation and i know you're familiar with the underlying case mr jones was charged in a rico substantive and rico conspiracy count to nine twenty four seize one of which this court reversed as multiplicity this what we're left with is whether in the rico and rico conspiracy to crimes charged and attempted murder under new york state law and kidnapping under new york state law qualify as crimes of violence under the categorical approach that this court uses seated by the supreme court if they do not and the reason they do not is because neither crime in all circumstances requires force both please get in my car well you can bring somebody or under false pretenses lor somebody or other lost a deal with that yes there are a judge but when you look at these crimes and you even look at the jury instructions regarding these crimes yes but the technical possibility that such a case could be brought really isn't enough i mean you you need to indicate that this is this is a use or an application of the statute that is done i understand that and i understand that even making an argument such as this seems to shock the conscience so to speak because you're actually very interesting it is very interesting i don't mean with regard to that but if you as a former counsel said speak to someone over a beer and say i'm going to the circuit to discuss whether an attempted murder or a kidnapping qualifies as a crime of violence the responses i'll buy you another beer chances are you'll not make any headway on that i believe that that would not be the case here i believe that when you look at these crimes and you go into their generic elements arguments can be made that those underlying crimes which form the basis of the racketeering acts for both counts one in two murder that doesn't involve this is attempted murder first of all and one can to do something that involves but doesn't have to involve force even we just saw what's happened in england and i'm just going across the pond for purpose of example you have two individuals who were poisoned there was no active force involved and that constitutes an attempted murder so the element of force how can you be the case that poisoned a minister in poison to someone to murder to kill them does not involve the use of force you may not be the poison may be doing its work on the human body you may not be hitting them over a head but you have exercised force in poisoning them well there if by that argument i think if you shoot a gun because it's the bullet that actually touches the  with all due respect even pulling the trigger one could say is an act of force and certainly a bullet going into a body is forceful example i mean i think that's a kinda giving someone poisoned right it doesn't have any physical velocity associated with it but it's clearly force electrocution would be different a gas is not necessarily a situation that would involve force as it would be defined in applying this situation but isn't the test a substantial risk of force even putting aside whether something is force or not i mean isn't that what makes attempted murder certainly a violent crime well i think we also have to tease out the difference between murder and attempted murder and i think we would all agree that attempt takes us somewhat further away from the actual situation of of one losing their life one can attempt to kill somebody by attempted murder by purchasing something that could be used and certainly that would apply in the conspiratorial sense and it may even apply in aiding and abetting sense and i i understand that i'm really slicing this in in the thin fashion but under the categorical approach  if there is a explanation that does not involve force then an argument can be made with regard to that the law will hear one republican thank you very much and we ask whether there is a realistic probability that force can be used that a crime could be convicted without at least some force being used we look at two things one is the case law in the state which the fellow hasn't pointed us to a single case of kidnapping completed kidnapping where force not used or two we'll look to the appellants own case in this case involved very violent kidnapping was a pistol whipping that lasted for an hour as the victim blood and fled for his life that's why this kidnapping and attempted murder satisfies the forced clause but the court does not need to reach that issue because we can stop at the risk of force clause which this court has upheld and hill and that analysis we just look at the ordinary case the kind of case that you can you know talk to a colleague over a beer and say that you know arguing over kidnapping and murder does that put an ordinary person i noticed that is a crime of violence and i submit that it does we've cited numerous examples throughout the country in castleman which echoed what you said judge livingston you know i heard it somewhere it is it isn't the sprinkling it's the it's the act it's the it's the activity of the poison on the body which which is but may i offer this even though i think you're facing some mighty headwinds in this regard is the best argument you have united states versus van mead which is in terms of how the law defines the offense and not in terms of how an individual fender might have committed it on a particular occasion is the categorical approach well i thank you for saving thirty seconds of my rebuttal because that is precisely what i was going to say in response it is not how it was committed in this situation but how the law defines the crime that should control and i believe under an analysis one can argue that kidnapping and attempted murder do not always require full force or risk of force thank you thank you but will reserve decision