good morning and welcome to the th circuit we can we can we can proceed without my glasses for the time being welcome to all the students who are here you're going to see a long list of cases the custom here and you may be a little surprised by what appears to be impoliteness by the judges what happens is that lawyers talk for a while and then we just interrupt and we've got our own questions and so on but that's the way it works we've read the briefs we've thought about the case we don't really need the lawyers to explain a lot of stuff about what happened because we already know and the most efficient way for us to understand what's going on is just interrupt so bear with us and politeness is the ordinary way a lawyer who talks without interruption hates it they expect to be interrupted they want to have questions because they know what's on my mind ok we've got a lot of questions a lot of cases this morning the st of good morning your honour's may please the court carolyn way again here on behalf of mr de forest tubbs john ballasts is also here on behalf of mr michael plants our plan is for me to do the opening and mr violence under the elements clause but we still maintain that aiding and abetting federal armed bank robbery is not a crime of violence under the elms clause it does not include an element requiring the defendant to use attempt to use or threaten to use force you know that's a really interesting and i think hard question do we get to the question i looked at the verdict form for both of both of the two defendants and the question asked the jury is guilty or not guilty of armed bank robbery and aiding and abetting in the jury says guilty as to both so do we reach the question of aiding and  abetting we do your honor if if we look at how the jury was instructed in this case and the government included the jury instructions on pages or a portion of them at least some pages twenty five to twenty six  the government supplemental excerpt of record they are they had the jury had already been given the armed bank robbery instruction and then they're told by the way you can be found guilty of that crime even if you didn't personally commit the act or acts constituting the crime but you aided and abetted and so they're told the aiding and abetting instruction and then they're told the government is not required to prove precisely which defendant committed the crime and which they did in about it so i think both of these gentlemen there was not a special verdict finding whether they are guilty of as a principal or an aider and abettor we verdict forms us the verdict form includes both theories not liability with the word and oh i see what you're saying well i think if we look at the instruction there there's only one verdict form there's not separate check boxes right each and they're told you don't have to decide if it was aiding and abetting or or guilty as a principal so i think we have to assume the jury looked for the jury instructions in the e r are they there and i on either and they don't have to convict on both so i'm now i'm now what it's page twenty six of the government's supplemental e r i think six hundred and fifty eight of the reporter transcript and lines fifteen to seventeen say the government is not required to prove precisely which defendant actually committed the crime and which the clinton aided and ab commission you know ok i think what the jury was told is that you can find them guilty under either theory we're not going to make you decide so we have to assume but then the verdict says and that's true and i don't know if that's because when indictments are drafted usually and can stand in for or well those are very different words yes well i don't know if it's i don't know if we say the jury found them guilty of both i think i think that's hard to say when they're told you can find them guilty on either theory of liability how can you can you be guilty of both you know it seems like the jury would have to make inconsistent factual findings about all of them and i mean i i i haven't researched this i wasn't thinking about it other than just now but it seems to me it's an internal inconsistency well is that what you're thinking well no not necessarily because we've got two defendants i could myself commit the robbery and i can aid and abet my my coke and my my friend who's the committing answers and i think you could do both given that there are two people here and they're both they're both involved in the robbery i think i would say this is where we go back to the that's what the indictment charges although i believe the indictments which would be in the e r and i can go get my read of this more that would count one includes both includes eighteen u s c section two which is aiding and abetting i think for many years and for many purposes still it doesn't matter count one is going to be punished the same way regardless and that's still true but you know no section two does say it ing and abetting will be punished as if it were  so you're guilty of the same crime but it says you'll be punished as if you were exactly and i just was rereading davis the supreme court's decision from still six months ago about nine hundred and twenty four dollars c and some of the predi same as they include all the same elements because all courts federal courts that have looked at this said hobbs act robberies are criminal violence but conspiracy to commit it is not so i think colon analysis just look at the same punishment is the wrong an because the definition of crime of violence itself the elements clause in nine hundred and twenty four ca includes attempt and i think a lot of parts of said there you go could you could you briefly address rosemond i mean because r has committed the you know the functional equivalent of every one of the elements of what why is that view around i believe and if we look at the modern instruction given in this case today's th circuit model instruction for aiding and abetting that the defendant does have to know about the whole crime and intend to help the whole crime but they don't they only have to actively participate in they don't have to actively participate in all the elements they don't have to be in the bank using force they have to know that's going to happen and they're helping that crime so i do agree in these aiding and abetting cases they know if someone's going to do that the government does have to prove someone did that that lynn not only have to low they have to intend intend to help that crime i agree with that i've gone over my time but let's hear from your co counsel and then we will although we're taking over time  actually you'd like us to go in order and then the government not well it will i think so oh oh oh i see no none unless you're from the government and i thought you were splitting the national time frankly you know i got a good morning my name is queen whole culture i'm here on behalf of the united states may it please the court i just want to pick up where we left off on aiding and abetting and mention that this court doesn't need to get there  in the court but shouldn't want to get there because it's not meritorious you don't need to get there because it wasn't in the certificate of appeal ability well b c that's wrong meaning the way certificates of people ability work if it's in a certificate of appeal ability of respond that means that with the properly in front of us if you don't respond it's not properly in front of us unless we ask you to respond but it was in the opening brief you responded it's in fro right has occurred and here they can't do that because there is no intervening case law to suggest that their argument is correct so you don't need to reach the aiding and abetting issue and i don't think that you want to reach it because the case law is clear that in aider and abettor is treated the same as the sorry the principal i don't think the case was at all clear so i think it's a question if the question is appropriately presented th that section two says you will be treated for purposes of sounds as if you were but that doesn't mean it's the same crime you are they they are the same no wait a minute if it's the same crime why do we have two different crimes charge it's another one is that the crime itself and the other one is aiding and abetting the crime and eating in abetting the crime is another theory of liability for the crime but it's not a separate offense you know you're not going to get anywhere with me on that point because they're charged separately they come out of separate sections they have different elements if i actually go into the bank with my firearm and rob them and that's armed robbery bank robbery if i say to my friend who is on his way to go get him that's a better right correct and that little those are not the same crime but under roseman the aiding and abetting requires the same level of intent and knowledge alleged group and they are so therefore are treated the same well the treated the same for a perp that section two they're treated the same but that doesn't mean they are the  same for purposes of of punishment whether that is the same for purposes of it is is it a crime of violence that's a different question that's the question that's a hard question and this court has said that aiding and abetting and six circuit case law that the aiding and abetting is treated the same if it's a crime of violence the original offense then aiding and abetting is treated the same as a crime of violence and that makes sense because throughout case question for a different reason from the one you suggested which is to say the verdict forms guilty of armed bank robbery and aiding and abetting and if the person is actually used the firearm in committing the robbery it was tubbs that this court in its review of the direct appeal suggested there was sufficient evidence that he was the aider and abett if there are no further questions  this case which is what defense conceded the moment they stepped up here watson it is suggesting that this is a crime of violence and there's nothing no intervening case law that gets them around watson so this court is bound by that decision i'm not sure you're quite getting the drift of my question the argument as to why aiding and abetting is not a crime of violence is that there may be some things that the aider and abett does such as merely encouraging an act long before it happens that are not it's not an act not it actually an act of a crime of violence whereas if i'm actually in the bank and my act of aiding and abetting is to hand the person the gun that's a very different proposition but if we're talking categorical is the entire range of possible conduct now so that's the categorical approach but i think the argument we're being given here is a categorical argument is that is that right under rosamond all of the conduct to be guilty of aiding and abetting would be covered roseman requires that there has to be an affirmative act and it has to be in further we looking at as a modified categorical matter as a categorical matter walk because you don't need to go beyond to the facts you can answer the question looking at the law but what happens if i think i can't because this is not we actually have a charge you did this we have a trial you did this this looks to me like a modified category you don't need to get to modified categorical because it can be answered out on well i the only way out i don't know if i can get a categorical because what i actually have years if actual record you have a factual record but you don't need to look towards the factual record having a factual record doesn't require you to look at it should do and i'm not sure when you said based on what's in what you mean i asked you can we decide this as a modified categorical and say that x charged as a betting and found by the jury as a betting that clearly is act of violence a crime of violence and not get to the question well is a crime of violence when the only thing the defendant did was in the morning is the burglary robbery goes out the door go get him that because you have to have the specific intent to further every element that the eight are in a better can be treated for crime of violence purposes as having committed the functional equivalent of the underlying offense yes ye good morning your honour's john ballasts on behalf of michael blanche i want to start with the question about the verdicts in this case i think that the best way to to view the verdicts in conjunction with the jury instructions is that the description on the verdict is just a general summary of the charges a description but it's not really asking the jury to find one and the other but that's exactly what it says it does say the word and but i think it's just basically guilty or not guilty of the charges it's in the indictment it says and that iron bank robbery and aiding and abetting i would say it's poorly worded it probably should have been or but the instructions are what the jury is told to decide the case and that's just a general description of the charge that they say guilty or not guilty but as i wrote at least as the question on the matter modify categorical approach i think if you would look at the modified categorical approach it you're generally limited to the jury instructions the indictment the verdict you don't look at the facts of the case you don't look at the closing arguments or that the facts so i i think that even under that approach it's unclear and i think you have to kind of assume that the the verdict the decision but if we're doing that in order for in my view at least in order for us to say that aiding and abetting is not categorically a crime i've got to go to the outer boundaries of what might constitute aiding and abetting the conviction for aiding and abetting can be can be supported under the act under the modified categorical given the nature of the indictment given the nature of the proof a conviction of aiding and abetting yes i agree there's this is i don't think this is a case where you can say well listen my client was an aider and abettor at least conceivably only because as the actual robber went out the door they said hey i'm really encouraging i hope you hope you succeed that the that factor scenario is simply not present in this case i'd agree that this isn't a situation where someone was outside the bank for the entire time so it's different right so and i'm having trouble treating this as a  be that i think you do look at the categorical product because that's a general purpose a court to take but even if you use that modify category approach the jury's verdict instructions indictment do not rule out a decision by the jury that