our next case this morning is the united states versus  morning runners michelle jacobs appearing for the defendant deanna m r i'd like to start this point i mean i can start where we wanted obviously we've sort of run the waterfront here but i think there is one issue here that there is an error that is plain that needs correction and i don't want to lose the opportunity to touch on it before we perhaps get into the some of the other johnson issues and that is the sentence on count three that sentence should be vacated  for the sentencing consistent with the jury's verdict here i have the imposition of a seven year sentence without a jury finding the element of brandishing violates the defendant's sixth amendment right to a trial by jury and is controlled directly by the supreme court's decision in a lane elaine obviously held they have to have a jury verdict on a mandatory minimum there was not a verdict here it was not submitted  air review we are on this issue so how could a reasonable jury found given the photos that we've seen who found mr are guilty of when you look at the jury's verdict itself they've acquitted mr moore and other conduct of that same codefendant occurring during the course of the bank robbery making some distinction apparently between what was reasonably forseeable to mr packing a gun in a bag wiping out wiping a gun down and packing it in a bag packing it in a bag knowing that a codefendant is carrying it with him to the robbery dropping him off at the robbery those kinds of things those are all carrying i mean he would be responsible for carrying but as as the jury instructions indicated someone who aids and abets the underlying offense and this is what the jury was told that aids and abets attempted armed bank robbery knowing a firearm would be used or carried does not aid in the commission of a nine twenty four c the defendant must aid in the commission of the use or carrying he must be involved in those elements and so and i mean they didn't they didn't include brandishing or how you would aid and abet a brandish versus how you would aid and abet a user carry at all what the jury the jury got no instruction that it but if but if you have to have some involvement in the brandishing for example in the kirkland case the defendant told the codefendant who was going to carry the gun into the bank don't worry you can shoot because this kind of a gun doesn't leave cartridges behind i mean that's that's some suggestion this that defendant knows that that gun is going to be out and perhaps even discharged cureton the other one that the government relies on here it's the defendant himself who's carrying the gun and who's brandishing the gun in the course of the robbery and this court said there were it would be impossible for the jury to have found that defendant guilty given the facts and not found him guilty of brandishing but here you have a defendant that's not anywhere near the bank in fact at sentencing the district court commented this defendant there had nothing to do with brandishing i mean the court made that comment and so given those facts given the aiding abetting given the location of the defendant given the lack of any  factual basis that this defendant counseled these guys to pull the guns out immediately you know hold these people at gun point there was just there's just a complete absence of those kinds of facts that would support  also the jury would have had to have been properly instructed right now the jury was instructed you can find him guilty of use or carry if you find there's evidence of him aiding and abetting that use or car but there's absolutely no instruction given to the jury about anything more than that right the correct question is not whether the jury could find the brandishing enhanced or on this record but whether a consistent verdict absolutely not absolutely not given his role again and if if the jury instructions are correct and i would suggest that they are that he had to have involvement in aiding or abetting the brandish versus aiding or abetting the carry there is no evidence of that i mean there simply is not is there evidence that a codefendant ultimately brandished yeah it's in the appendix you can see that the that the codefendant has the gun out but that's not the question the question is whether there's evidence in the record that this defendant aided and abetted brandishing did he do the kind of things that were alleged in kirkland did he counsel the defendant make sure you have gone out get it you know get it on the victim immediately social you know do what you're telling her to do or something like that there's just no evidence of that and given that i would say the other i guess frustration here in this this is i'm not sure where this goes but i'm going to throw it out there anywhere anyway you know this should have been instructed the jury should have been given the special verdict right and we're now in a position of fighting the uphill battle of plainer  but it's the government's burden it was the government's burden to prove this it was not mr morris burden to ask the judge make sure make sure i got that seven years of not that five years right make sure the jury gets to decide whether i get that enhanced sentence and we're now up against this player standard where we know that you know had there had there been some sort of dealing with this at the at the district level probably wouldn't be here at all but but certainly there is a certain irony that we are stuck on a plane or standard trying to establish a miscarriage of justice because he didn't ask for a verdict on  a sentencing enhanced this is post elaine cured and kirkland both those trials happened prior to elaine the error that was made in the district court was for an obvious reason nobody thought i would suggest that elaine suggests that the appropriate remedy here is for a reaming and and re sentencing consistent with the jury's verdict and that verdict is on use or carry only  i guess i'll move to the other sentencing issue unless unless again the court wants to move to the bank robbery twenty one thirteen and the given the decision in mcneil and some of the other cases i think that's more of an uphill battle and so i like to spend the remainder of my time on the career of founder and i know you just talked to counsel in the previous argument about the put in fear a couple of things i guess that i would like to add to that the first is it  strikes me as there's a certain redundancy in the indiana statute if if i mean indiana has said the put in fear means put in fear of bodily injury but post two thousand and ten johnson what that means in federal court in determining whether something is a violent crime if we say here that putting someone in fear has as an element that's what that's what this court would have to find has as an element the use of violent force right the threat of violent force the threat of of bodily in pain or bodily injury it really seems like that's the first prong of the indiana statute the first prong of the indiana sat statute says you or threaten the use of force and so by sort of superimposing this two thousand and ten johnson physical force requirement the indiana statute it seems to me we do create a redundancy in that statute the two prongs are being interpreted threatened use of force because it requires that the victim be in fear of bodily injury i think only if well or certainly if we're increasing that threat may lead to bodily injury or even pain without bodily injury is enough right right but but i would say that in louis which is the case that sort of all came out out out of it to me a close reading of lewis there's a complete collapse between the residual clause in the forest clause there really is not a teasing out of does this satisfy in a certain certainly because it occurred before two thousand and ten does this satisfy post two thousand and ten johnson just the forest clause i don't think that we could rely on as the government has in this case to say lewis is sort of the beginning in the end of the question here the other thing i would at least ask the court and i know my time is up and i will sit down but i'm going to ask for one more minute maybe i won't come up on rebuttal but some of this seems to me in this case to be a labels problem we're calling this statute robbery and again and indiana called it that we're not but indiana has called it robbery if they had call if they had put the put in fear subsection of this statute in fact in the theft statute let's say and said you have regular theft and then you have this aggravated theft that if somebody takes something from another person and scares them when they do it we're going to call that some other form of theft i think it would be a different conversation the label have of robbery has sort of made it easy to take to the two thousand and ten physical force johnson requirement here and say well this this satisfies it because we're talking about bodily injury when in fact as you've talked about with previous counsel there really is a much lower standard in indiana then than johnson i think suggests is appropriate when talking about these very enhanced penalties under the federal sentencing scheme all right thank in the argument that i want to specifically respond to first fault just as a as a general statement i would say that the plain error standard has not been met here that there is no miscarriage of justice i understand that mr jacobs views it differently rails against the notion that in a way as she sees it it shifts the burden to mr armor to raise an objection but of course in any case in an adversarial system that plane air standard is what courts have devised to agree it's the government's job also develop the district judge give the instructions right yes your honor  and on that point absolutely if nothing else just to avoid having to deal with this and argue in this plain error context on appeal there should have been i will say that should have been a specific instruction on brandishing however that said that the jury instructions in this case did maybe confusingly but maybe not even in the definition of carry in compas brandish and in the context of what the jury saw in terms of the evidence here it wasn't just the packing of the guy in zip ties and masks and so forth in the bag that is true that was evidence that was presented to the jury the jury also heard the of the bank that is control the employees as they enter the bank and that's exactly what happened here right in the record would be sufficient to support a jury finding a brandishing we just don't have that here and so the question is whether the jury necessarily would have found brandishing by purchase of having found carry i think and this is different from puritan where you had you know a single actor right here and here you've got multiple actors and he's on an aiding and abetting theory aiding and abetting that also your honor conspiracy liability pinkerton liability those instructions were were given by the court there was no objection to the scope of aiding and abetting or the pinkerton liability for anything that happened here it is true that mr armor did not set foot in the bank he was across the street controlling the action by radio all according to his plans so what was the defense theory a trial  mr armor you know was along for the arrived in that that he had no direction over what happened he didn't could not understand that but what happened what did happen would happen right and he was acquitted of the carjacking he was acquitted of the carjacking that's correct i would not have been inconsistent for the jury to acquit him of the brandishing elements had to have been instructed on that well not happening consistent with the carrying conviction your honor the twenty four seat issue here was in the indictment charge does use carry and or brandish and that was exactly was what was also on the verdict form as the court knows use carry or brandish so i think that the jury could in fact it could be said did find that there was a brandishing but there was no instruction given on that there was not a specific instruction that is correct or are but because of for the reasons i would say that the curate can incur can still control here because it's a situation again were there was no objection raised at sentencing the wasn't of an objection raised in the context of the instructions and plain error shit for closing argument here i'll go ahead and move to the indiana robbery discussion i'm not sure there's much more i can add to what my colleague gave a very detailed description of indiana robbery i do think that it does  qualify under the force clause and in response pacifically to what mr jacobs said here about this i guess sort of a redundancy or a merger of the threat of physical force formulation of indiana robbery with the put in fear formulation i think it's certainly up to you and is the province of the state of indiana to define robbery or theft however it chooses to do so this is how they've chosen to define it and i think it's a conceptual matter even one one can i can certainly imagine a case where somebody comes in and actually physically or actively threatens somebody if you give me your property rival do x that is easily put under the physical threat pawn but the put in fear could be something as simple as just coming in and just taking the property a big holding defendant for example i think that a reasonable victim could objectively the objectively be placed in fear by the actions of the defendant in that circumstance and certainly could subjectively be placed in fear or it could be somebody coming in more serious on the spectrum but still covered under the the for clause so one could come in with a gun on their hip never brandish it never say me thing again and take property and put someone in fear so i think it's not necessarily a redundant element and it's not surplusage that the court should should honor because that that the we've we've briefed this of course but i think the fear of bodily injury is something that falls within what what we would in what we would consider a crime of violence  forcible crime of violence at that falls within the forest clause and we don't need to have the residual clauses as sort of a safety net to make that finding your  but you can have one minute to rebut if you have anything else to say the only thing i guess i'd point out is one more time on the instructions i read the one instruction and aiding and abetting when you turn the page which is instruction twenty or at the page thirty three when they talked about again the nine twenty four see a defendant can facilitate the use or carrying of a firearm no mention of brandish in the commission of a violent crime in and of in a numerous wave them and they say things like transporting the principal offender in the firearm to and from the scene you know encouraging others to use a gun in the commission of the offense the instruction set this up for a user carry but did not i don't know how you can say that because the word brandished appears in the verdict along with the