good morning michael bowden on behalf of the government may please the court as both this court and the supreme court have recognized when a federal criminal statute incorporates another state or federal offense congress may have intended for either a categorical or a conduct based circumstance specific approach to apply the text purpose and legislative history of the by car statute compel the conclusion that the circumstance specific and not a categorical approach apply the text of by car identifies specific kinds of violent criminal conduct including murder kidnapping assault with a dangerous weapon and it makes those federal crimes when committed under a narrow set of circumstances by members of criminal enterprises i geisha racketeering activity it then has a nd requirement that the criminal conduct also violate another state or federal law the most natural reading of this text is that the language focuses on the cited as an example of a circumstance specific statute these two statutes are markedly different than those statutes and and sentencing guidelines provisions that take a categorical approach rather than prescribing specific criminal conduct as my car and the terrorism statute do these other statutes like the us crime of violence statute eighteen u s c sixteen define a class of offenses circumstance pacific approach apply as but it sounds like from your it sounded to me miss one of understood it sounded to your briefs it from your briefs that you were still focusing on the elements in the analysis that you say the district court should've gone through and so yeah and i don't want to get too caught up in the labels but it seemed to me that you arguing you look at the elements of generic assault with a deadly weapon mean look at the elements of of virginia brandishing in i think you say charge both of them but  end maybe a little confused in it but it looked to me like you were saying circumstance specific apply that then using the elements and determining the analysis as a mat maybe at didn't understand your argument properly i think i can clarify that what we're asking this court to hold is that the circumstance most effective not a categorical approach applies therefore it is a question of fact for the jury to determine whether the elements of both offenses have been the brief sets forward the elements of both offenses for two for two purposes if you think of my car as a venn diagram we have conduct that makes the generic definition we have conduct that meets the state statute where they overlap that's when that conduct overlaps that's what vicarious for hitting and what the per the purpose of that section the brief was to show that there are such similarities between the two statues to begin with that there are certainly going to be conduct that overlaps between them but more importantly it's to show that as a matter of policy and a matter of fairness to the defendant the government is trying to match a state statute as closely as possible so the generic offense and these two statutes are pretty close i because i had the exact same question is judge probably right now is where i'm not understanding why it matters if your position is that the only question in this case is whether the defendant's actual conduct met the elements of both offenses why do we care if the two offenses are close was just as it lying it seems to me that what you did was maybe backslide a little bit in the beginning and i don't mean to interrupt there but that what would you do you start out by saying this is circumstance match the statutes as closely as possible most of the defend is on notice but that is not that what the requirement of the law is if you're right why would the why would the district court need to george generic assault with a deadly weapon why would that the a matter that judge does as a matter of wall and if the elements of that generic fall within the purview of the predicate statute here butin your brandishing why would it would be an abuse of discretion for the judge not to charge both the elements of the the narrower offense it resulted in prejudiced defendant and in the situation you've outlined here there would be no prejudice of the a situation like this with this statute is it your position that you do need to charge the generic offense elements or you do not it is our position that yes we properly and  amendment purposes the jury has to find that the defendant's conduct violated all of the relevant elements when you swish these two statutes together exactly the safest way obviously as you will better just charge them both  but if there is a mistake the courts are going to analyze whether the narrower element was found in the underlying question is can be did the jury find all the relevant elements that's exactly right can i  question it turns out i'm like the preservation person today and i apologize  but it's seemed to me and i went back i might i'm not sure was in the appendix but i went back and looked at the briefs before the district court in the argument and it seemed to me that before the district court the government was at a minimum emphasizing sort of the nd argument that look if you put the elements together it's a substantial match and that's all that's required we don't need perfect it was sort of a gloss on the categorical approach maybe the elements don't match perfectly but they match substantially they are substantially similar and that is enough and asked the district court to apply that standard to support apply that standard and found that there wasn't a substantial match has this been part has this has what you are now saying the government's approach is was that preserve below did you argue to the district court look doesn't matter if the statutes are a match on the elements what matters is whether the defendant's conduct only to both statutes yes by all of the below in the district court the government made clear that this is at the categorical approach does not apply but then it said instead ask whether there is a substantial match between the elements ask whether the elements are substantially similar  and i don't understand why the government below thought that that was not the categorical approach because you are right the government both said the categorical approach doesn't apply and then it said instead ask whether the elements are substantially similar i don't know how to make sense of that but i'm concerned about faulting the district court for not figuring out that what you really meant is what matters is did the defendants conduct violate both statutes i mean that the government was trying to emphasize to the district court that these two statutes were were close and therefore the conduct that the defendants would are lesser committed and that would have been proved up at trial what if it within both of them you're confident that if i go back and look again i'm going to find some symptoms where the district but answer the government says to the district court look what matters is whether the defendant's actual conduct meets the elements of both offenses because i didn't i couldn't find that and so i'm very concerned that the found i think the principle is clear from what we asked the district court that not to apply the circumstance i mean not to apply the categorical approach it asked a district court to to analyze whether the offense elements were substantially similar we did below present to the district court the elements of both offenses and allow and ask the district court to compare both but again that was for the purpose of demonstrating that there would be overlap between the conduct prohibited by both statutes might like to talk briefly about the purpose of the statute and why that also is important in understanding why this is a circumstance specific crime circumstance specific statute by car is not a catch all violent statute a violent crime statute rather is this court observed an iowa it targets individuals who commit certain kinds of violent crimes to enhance their standing in criminal organizations therefore it's targeting a limited number of acts and only in certain narrow circumstances tied to racketeering activities as this court recognized in price in the context of sorta like cars targeted purpose weighs in favor of a circumstance specific approach finally the legislative history shows that congress intended leichhardt to be to complement rico as a number of circuits have have held and therefore interpretive broadly so as to effectuate its very specific purpose congress could not have intended to prevent the federal prosecution of members of criminal enterprises engaged in murder kidnapping assault with a dangerous weapon merely because the state statute that criminalized that very conduct was broad it was written more broadly to encompass other kinds of conduct as well in this case the government charged the defendants with my car assault with a dangerous weapon committed in violation of the regina brandishing statute because a properly instructed jury could find that the defendant's conduct as charged as set forth in the indictment met all the elements of both generic assault with a dangerous weapon and virginia brandishing it serves as a proper state law offense under vi car therefore it is a question of fact for the jury and therefore this court should reverse the district court and reinstate counts for eight to compare the generic offense to brandishing weren't you well we did ask the court to conduct that analysis what does that mean other than categorical approach it was not it was not strictly as a matter of law but as a matter of demonstrating to the district court in advance that there would be so there would be scenarios in which the conduct criminalized by generic assault with a dangerous weapon and the conduct criminal laws by virginia branching would line up because of the closeness of the the statutory elements why would any of that matter if it's circumstantial specific approach it was not a strictly necessary together but before the district court you only made the nd one what matters is whether virginia brandishing meets the generic definition of federal assault with a dangerous weapon in making that determination a court must determine whether the state offense regardless of how it is legal substantial part to the violent conduct i mean i just i just and so that's what the district court did and you disagree with the way the district court resolved that question and i understand that but but i i guess i would just riette reiterate my concern you know any way i can we can i can kind of a still hypothetically i might agree with you on the reading of the statute but i am concerned that this is not presented below my time as of merit respond better your honor the i think it was clear below that the government was not asking the district court to apply a categorical approach thank your honor and i please the court my name is paul beers i'm in private practice roanoke i represent below in this this pending criminal prosecution jaylen terry also here with me our legal representatives lawyers for the other right it's it's absolutely true that they did not blow the government or argue they said well the categorical approach doesn't apply they did say that but then they turn around say the issue is so comparing the elements to make sure there's a sort of substantial match and they've tried to move from that argument on peel but below that was their argument i never understood that argument because that sounds to me like the categorical approach the government doesn't like t approach but that's essentially what they were doing they were calling up asking the judge to compare the elements that didn't go well so i want to feel they've come up with this completely different argument that we should have a is they've stipulated below and on appeal they're consistent and i agree with them that vi car those violent felonies listed in vi car are generic congress meant for them to be viewed generically murder kidnapping crime of violence assault with a deadly weapon so we start from that joint stipulation of parties to by car is supposed to be read generically those offenses because of that we approach that wouldn't be correct would it it would be correct to judge particularly when you're asked when when the nature of the statute asks you to compare the federal generic offense to an underlying predica look at the language in the by car statute you don't have the things that the supreme court was concerned about you don't have the verbal statutory indicators if you will  you know they didn't use the question of element it wasn't a crime by its nature they didn't refer to convictions generally all those comparative terms and general terms that the supreme court said look we've got to be fair to a defendant certain defendants are going to be swept into this net unfairly if we don't parse these crimes element by element that you don't have that here because there's nothing in the by statute the categorical approach necessarily applies i think the supreme court has said that says we in moncrief often cited three times in our brief when we say generically mean the offenses must be viewed in the abstract to see where that the state statute shares the nature of the federal offense that serves the point of comparison are and this court box sitting on bob consumes just lessen your go although the category  complicated the rationale is simple long established if congress has conditioned a statutory penalty on an offense generally rather than specific acts courts must consider the crime is defined rather than the vendor's conduct  language the judge again was talking about it seems to me this doesn't really fall specifically in in any of that but when you look at subsection a the areas aspects that preserved there are issues that the statute seems to be maybe less helpful to you than there stipulation to two points you want to thank you for the question one is if this is a generic statute they say that and i agree supposed to be concerned generically the categorical approach up necessarily implies they're there they say they point to no case by this court or any other finding that a categorical approach does not apply to a generic statute that could just be because in the other statutes that have been reviewed that use the generic offenses the statutory tax compels a categorical approach i i don't think we've ever said or the supreme court has ever said whatever generic statute we need to apply the categorical approach you read from yes your honor i don't have it in front of me but it started by saying look where the statute requires that we compare offenses and we're using a generic form of the offense and that's categorical that's fine but this statute doesn't require a comparison of the senses it requires that this kind of these acts murder kidnap assault be committed in the course of violating some state law that's that's a conduct emphasis well thank you to interpret the particular statute in front of right and and those decisions into my in davis were tethered to the statute in question and  that's what he had been charged with or are you you know arguably i think you'd be in much stronger footing if he had been charged with threatening to commit a crime of violence in violation of  of violence is generic but that's not what he was charged with he was specifically charged with assault with a dangerous weapon or polonius nowhere does the statute your honor use the term such as the statute they want to talk about conduct murders that's conduct kidnaps that's conduct well all crimes are or conduct section one hundred and twenty freshet but the choice of the decision of congress i think was his point to use the verb the action were the conduct as opposed to using a crime person one hundred and fifty nine doesn't talk it doesn't say the word conduct doesn't say circumstance like that stretch they're pointing to it does start with a bunch of very fact specific serpents sure and i mean circumstances that statute says during during any person who during in relation to a crime of violence so you already have to have someone who during in relation to a crime of violence cherries and uses a firearm there are circumstances of every statute there has to be some purpose language it's no different here this starts off by saying any whoever in order let me yes your hon elements of virginia brandishing is there anything and they are about that to your client is there any prejudice to your client you know a lot of these we got into this because either there's into something that actually i mean we can debate not understand that we understand your argument about the statute but is there any actually policy reason or unfairness to your client with the approach that the government advocates here today absolutely judge the young fairness is that he's entitled to only be charged with an offense that the district court in shore matches the elements yes yes shawna that is true if a jury is charged on both right because i thought you were starting to say look my client has a right to have a finding that he committed the elements of assault with a dangerous weapon but if the jury is charged on both you have to find that this defendant did x and you also have to find that the defendant did why in the same course of conduct it's all contemporaneous we're not looking through any old records or making assumptions what what is the perceived unfairness of that the unfairness is the same problem that's exactly the government's argument in davis that was rejected davis we said look if the statute says clearly and unambiguously you have to apply the categorical approach and that's what we're doing even if we can't think of any policy reason why that would be a good idea but i think what judge called obama's question was went to the idea of assume for a moment we do have a clear and unambiguous command to apply the approach is there any policy or any of the policy justifications for that approach implicated here yes the policy judge particular and indictments challenge pretrial is to ensure that there's a cat approach match between these federally generic generic crimes and various state crimes various state crimes and that's the rule trial judge and this trial judge did exactly what they asked him to do he compared the and he found there was not a substantial and and for purposes of uniformity we don't we want to make sure that people are not don't have to face trial when there's not a categorical match to no it seems to me that the defendant is almost in a better position if the jury has to find in order to convict him under vi chord the jury has to find the elements of both the federal crime of assault with a deadly weapon and brandishing because the failure to prove one element of either of the two crimes results in an acquittal seems like the defendant is it receives an advantage these are the circumstances pacific approach at least as to the elements of the crime doesn't  in terms of the d burden of proof on the government right the course we're not talking of a jury instructions or judge we're talking about what he's charged with he's not he's not address and i'm talking about disadvantage we've been talking about how the defendant is suffering  a constitutional deprivation or a legal disadvantage by applying the circumstance specific approach as opposed to the categorical i think we're trying to do is carry out congressional design legislative intent and the supreme court's jurisprudence on a categorical approach and he's added disadvantage if he can just be they could just say well assault with a deadly weapon generically and just pick any statute without ensuring there a real match between the state elements and the federal generic omes he's at a disadvantage if you faces trial under any other circumstance i think after hearing counsel mr beers it least i can say that i'm left with a real concern led the difference just to court down the wrong path could you address that before you get into the balance of the government was clear in the district court below that the categorical approach was not the right framework to apply in the district asks the district court to compare the element stay depends corresponded to the federal generic when vicarious looking at two steps are different types of conduct conduct the falls within the generic conduct that falls within the the state offense that conduct is going to where the district court said i'm applying the categorical approach but doesn't have to be a perfect match it's enough that there is a substantial match and so it really looks to me like and i'm not blaming anyone it's perfectly reasonably the government came into district court lead decision and said you should do this it's a categorical approach but it doesn't have to be a perfect match it's enough that it's substantially track the common law definition and that's what the district court did and i'm really not faulting anyone in this picture because you believe decision is right there the government doesn't concede that lee said the categorical approach applies there's a footnote i agree that i've spent way too much time on this i agree that above the line it's not exactly clear what the district court is doing but below the line there's a footnote saying like look we can't apply a conduct specific approach to this statute we can't do that under taylor so we're stuck with this categorical approach in this case if the jury is charged on both conduct such a circumstance specific approach would enable the jury to find that the elements of both have been met and that is sufficient are the statu