and the st point is that both generic and false resulting in serious bodily injury and generic assault with a dangerous weapon which are the pertinent types of assault of those reach reckless conduct the government contends this is a debatable question but it really is that the general federal assault statue section want to eleven including the section important to setting a generic crime recognized that all these assaults can be committed recklessly now the government tries to argue that even if these crimes reach reckless conduct they're still does not require a high level mens rea of the other whatever conduct the splices under the underlying statute we've cited at page eleven of our reply two examples in the southern district of new york case the nd point black are solved is probably the nub of the matter and it's reckless conduct cannot constitute a crime violence as defined by the th call consistent with all other the question at the time this court has previously so help in its two thousand and sixteen decision in us the moreno which held that reckless assault is not a crime of violence under the materially identified identical  by the by standers person and then further on boy the purpose of the statute here is very different from the misdemeanor domestic violence statute issue and by doing that one with the prophylactic statu honor another point regarding paul is that it is not a crime of violence because it could be committed by omission on this point we call the court's attention to to this court and other kind of the courts march thirty one found guilty of those elements without actually using threatening to use or attempting to use physical force against the person or property of another i commend to the court th circuit judge jacqueline you in powerfully reason opinion dissenting in the th circuit case us vs to judge when references some examples of attempted robbery that really illustrate point one example is stopping an armored vehicle by standing in front of it pointing a gun at the driver and then pulling the trigger but the good jams and the driver escaped with the money another example is planning a robbery buying the necessary year driving to near the target but returning home under the category of approach meet the requirement of the th call now the government argues the contrary because it argues that the attempted use is not the natural ordinary meaning of the words time trying to be something but rather refers t to commit such acts and that's the way the government's reading it that construction is not uncommon in the federal criminal code indeed tasting us the nine hundred and fifty nine dollars that like our statute we're looking at the fines crimes the constitute it's now or so and then i think i can i can you know come up with a sentence that says you know i was recklessly salena my arms around that i swung them against you know the guy standing next to me and i'm using the word against to let's take an example i mean a reckless assault could be a mother driving her car and being while driving and getting in an accident and injuring her child case where they say look to the quote least of the acts are cases where there was no record no appropriate check or separate document term and what offense the defendant here it's clear that only basis for this court to find that assault with a dangerous weapon is not a crime of violence is this claim that it was committed recklessly and there the defendant simply has not established a reasonable profit of probability that the that it was sufficient for the government to show the defendant as a member of the enterprise set out to commit a prescribed act of violence in other words intended to do so in order to be compensated or maintain or  an adjective by the court to describe the nature of the conduct not to describe the type of assault in fact those cases were charged as intentional assaults and attempted murders all  involving intentional conduct not reckless conduct so there really are there isn't a reasonable probability that the viking statute not just assault or assault that dangerous weapon but by car assault a dangerous weapon could be and relied so heavily upon against a property of a person or property of another there's no magic to the word again it simply means hitting something or striking something or someone that does not go to the mens r required to use the force and indeed in voice in itself supreme court distinguishably account and said that nothing in the account suggests a different conclusion that you somehow marked a dividing line between reckless and knowing who has to under the elements of the crime either they can plead to or be convicted of doing the assault committing the top the purpose of gaining a position maintaining a position or compensation there's simply not a realistic probability of mission reckless assault would be still constitute the use of violent force under the supreme court precedent waving and i would note with respect to marino obviously there has been a significant change in the legal landscape over by omission could realistically be prosecuted under the by car statute we would submit that it cannot and and that for that reason among others by car assault under either  determining whether or not the defendant had pled to a reckless assault crime or an attempted intentional assault crime and that was really the focus of the argument and the court decision the idea being that one cannot commit an attempted driving a tar and injure their child in the car and that's not really using force against that person so i think the accident hypo is not a good one because ultimately the accident is on both sides of that equation it's not there's no recklessness or or  the use of force that would be used attempted use or threaten use it would be something else that would be an attempted threatened use so how would that fall under the for or attempted use or not the use of force so if the attempted use and threatened use and i'm not attempting to use force i'm attempting to threaten to use force in that conduct ke criminalizes attempting to do that so that there has to be a specific intent to use actual or threatened force in order to in order to get the property and force but the force called itself distinguishes it says use the terms of use or threatened use it can be that if threatened use of force is the use of force otherwise that would make that part of the statute extraneous right i think the fact that you have pulled the gun if your intention when you buy the con is to rob the store pointing the gun at somebody that pointing  somebody and threatening the person with it constitutes use of force at that stage it's not a threat you are i guess the issue is that threaten use of force and use of force when you're talking about utilizing it weapon and pointing at a time body are overlapping concepts if they virtually you are using force by pointing the gun at the person to get them force no not that i'm aware and so well taking that point one step further it's not a reasonable realistic probability that sort of underlying kind of violence well that might be right all right thanks very much it's an all far fetched i think it's common it's not uncommon for someone to consider pursuing a robbery where they don't tell you in their where in their heart of hearts and there be plenty of evidence substantial to step in intend it it's something else so i think just now he's on to something i think that is exactly right and it's part of the problem with the reading that's being urged getting back to getting back to bite made that argument before they made their pleas at length they never made that argument i think they got it right the st time because if you look at the charging instrument the information it says assault doesn't specify which one the defendant's statements in his don't tell you which one it is in fact they probably would make out either of them will tell you what the charges under the under the terms of the categorical test you want to you have to know what are you being charged you can't tell you have it have the government have cover again i think the government got it right when it ever did make that plain in its original papers with regard to the there's no reasonable chance that the government whatever charge reckless conduct the go i would i would ask if the government is willing to forego a charge to the jury in the two cases that we cite in our brief that page eleven of the government's going to be willing to forego a recklessness charge to the jury when the district judge in both cases described the the government is going to forego a reckless charge because it's it's satisfactory under the statute the course the government's not going to forego reckless charge it's common cause that the fire stopped off at in the in the distance and hit a bystander that's who's who's charging that very case the things like that take the position that will never charge reckless finally with regard to omission i just want to point out that me do we do want to read mention reference waste of homicide by omission in the diplomat the parent child to a sion but rather someone putting the someone taking steps to isolate someone and not rendering assistance when they've taken the steps to isolate that cases like that in our papers they could just as easily have been an assault and then a murder charge an assault around a murder if the person didn't die they were just very seriously injured or are injured and in fact the fact that