good morning may it please the court carol hartzler federal defenders on behalf of mr fultz and i are also counsel in the next case jackson and we've conferred and we think that we can probably cover most of the issues in both cases because they're pretty much the same so we're but we're happy to do wherever the court would like all right well let's proceed and see how we feel real sometime always happy to have you see your time that's in case if you feel like you've adequately covered all the issues and we know the court has a busy morning so we'll do our best so there's two main issues in this case in both of these cases the first issue is whether the residual clause of eighteen u s c nine hundred twenty four c is void for vagueness and then the second issue is whether the statute at issue here could alternatively satisfy the force clause now as to the first issue of the void for vagueness as the court is probably aware that is now pending before the supreme court in a case called davis and we expect a decision out by june and so i think it doesn't necessarily make sense for this court to decide that issue we're missing are both happy to have the court wait on that issue so i'll focus most of my comments on the second issue of whether robbery and in a federal jurisdiction could alternatively satisfy the force cost so the reason it and i just want to clarify its position if we decide that twenty eleven is a crime of violence under the force then we don't need to reach the other issue that the supreme will be deciding us versus davis correct that's where we would lose so but let me try and convince you that that's not the case so what i'd like to to do is sort of take a step back and look at the statutory scheme because i think the government has pointed out correctly that there are other statutes other federal robbery statutes that contain the same clause this taking by force and violence or by intimidation and while twenty one eleven has that same clause we think that twenty one eleven is fundamentally different and i'll tell you why first of all it's different then the carjacking statute the carjacking robbery statute twenty  one nineteen and one of the reasons for that is because the carjacking statute while it contains the same clause it also contains an additional clause that says that the taking must be with the intent to commit or with the intent to cause great bodily harm or death by contrast twenty one eleven doesn't have that so twenty one eleven is actually the type of federal robbery statute where it doesn't require you to intend to carry out your threat it's much more of sort of the type of snatching taking that the supreme court recently talked about in stokely where there need not be any kind of victim resistance so that's one reason why we think that this case this statute is different than some of the others that this court has found to be a crime of violence i'll go ahead and compare it to another statute the federal bank robbery set you in bank robbery you have a situation where it's a federally insured bank and you have a person who's coming in usually premeditated and it's a very public crime with other people around where the person basically sort of is threatening if you don't give me money i will cause you harm and take that by contrast twenty one eleven is basically it could be for instance committed by a person who goes into a seven eleven on a military base and grabs a bag of chips out of someone's hand and that's why we think that the the gold tooth case is actually really relevant here because that's exactly the kind of just quick spontaneous snatching of property and walking away that the supreme court has held really would not be the kind of crime of violence that would satisfy the force clause and so that's basically our reasons why we think that the twenty one eleven is a different animal altogether then the other statutes that this court has held to be a crime of violence and that's pretty much what i was just saying my points i wanted to get out if the court would have any other questions i'm happy to answer them but otherwise i think will reserve the rest of my contain the identical language that force in violence or by intimidation necessarily and categorically includes or is a crime of violence and to the force clause there is no different result that should obtain here the identical language is used for robbery in two twenty one eleven as it is used for bank probably in twenty one thirteen as it is used for carjacking and twenty one nineteen the distinctions that miss hartzler has identified are distinctions without a difference in light of the statutory language at issue here indeed that this court held that force and violence would obviously constitute a crime of violence under the force clause that same result obtains here in watson this same both quick cases help that the term intimidation includes the threatened use of physical force and really the supreme court's recent decision in stokely confirms that the terms force and violence particularly if they're used in robbery schemes and robbery statutes means the type of violent force that congress intended when an inactive one twenty four c and no different result is required for the purposes of twenty one eleven and as your honor noted if this court does find that twenty one eleven is a crime of violence just as twenty one thirteen and twenty one one thousand are then this court need not wade into whether nine twenty four c three b the residual clause is also vague gold tooth your honour's does not establish a reasonable probability that robbery offenses can be committed by snatching we are unaware of any conviction under twenty one eleven that would have occurred without with mere snatching without intimidation  we don't think the court needs to address whether gold tooth actually found a robbery had occurred because the court never addressed it but the facts of the gold tooth alone reflect that there was a type of intimidation that would have put an ordinary reasonable person in fear of bodily harm there were men that surrounded the victims at two am one with a baseball bat two with pocket knives they surrounded the men they asked the victims if they had anything of value they potted them  down those are the types of actions that would constitute enough certainly enough for a reasonable jury to conclude that the defendants had acted with intimidation meaning they had threatened physical force meaning they had committed a crime of violence unless the court has any what separates this case from the other statutes from bank robbery under twenty one thirteen and carjacking under twenty one thousand nine hundred basically no one no defendant has ever pointed to a case like gold tooth that occurred under those statutes and because of that we don't necessarily we are bound by the language of the clause force and violence by intimidation we have to look at how courts have interpreted the contours of that statute and for the purposes of twenty one eleven what this court has said is that basically the conduct at issue in gold tooth would satisfy the twenty one eleven statute and there's no comparative  is basically in terms of first of all i think in good at is what this court relied on in part was that extra clause that i mentioned earlier that there has to be an intent to  commit to to cause great bodily harm or death and so in good stead is this court basically said well we're relying on that to say that this has to be an intimidation where you're ready to cause harm to  what happened though is in gold to this court said that a robbery had been committed it didn't doubt that the conduct in gold tooth satisfy the definition of twenty one eleven it basically vacated the convictions for another reason because in that case there was an eight and a betting theory and they didn't know who was the principal and who was the aider and abettor so even though there was no actual conviction we agree in gold tooth the gold tooth court did say that a robbery had been committed and so that's why the conduct at issue in gold tooth is is able to show us a realistic probability now one of the other things that ms hong said is that even if you look at gold tooth the actions there were intimidation they were a threat of force and we respectfully disagree with that because what was basically going on in gold tooth is that you had a bunch of young man who were acting tough now when they were going over granted you know they they seemed like they were doing some harassment but you didn't have any sort of conduct that would necessarily rise to the level of you know if they don't give me this tobacco then basically i'm going to cause them harm i'm trying to you know threaten great bodily harm or death use of force that sort of thing and i think the other thing that we can look at in gold tooth is the fact that in gold tooth the actual taking of the tobacco the snatching was completely separate from the question of whether they had me in other words they didn't snatch the tobacco while they were holding a baseball bat at the person they were basically waiting for the guy to roll them a cigarette they were kind of harassing him they were standing around they nudged him a little bit but then when they actually went to grab the tobacco that wasn't the result of intimidation it wasn't them standing there saying give me that tobacco are going to hit you they grabbed it they walked away and that's exactly the kind of conduct that is the sort of did minimalists not a threat or an intimidation of violent force the way that the statute and so unless the court has any further questions i will submit on  us versus jackson