And welcome to the forced circuit. Judge Floyd and I are very pleased to have Judge Max Cogburn sitting with us from the Western District of North Carolina. We'll be proceeding in the first case of the U.S. versus Jordan Ladder-Milt. Mr. Hrenden. Please, the floor of my name is Stephen Hrenden. I represent Jordan Ladder-Milt in the appeal of his conviction of being a felony in possession of a firearm. I've raised three issues and I'm going to try and be brief for once in my life. One of the issues seems to be mildly irrelevant and that is whether or not the one point for a conviction in Miggs County Court counts against Mr. Ladder-Milt's criminal history. It appears to be irrelevant because his criminal history category is going to be six, whether or not the court affirms or disaffirms the trial courts. Conclusion that that should be counted
. How some ever that extra point was sufficient to result in Mr. Ladder-Milt being rated as eligible for USP Terahoot for placement instead of for NFCI. The point that I tried to make in front of Judge Stamp was that even though his criminal history category was six, the BOP relies upon pre-sentence reports and making determinations about placement. That was the case with respect to Mr. Ladder-Milt's one point. The argument I made was that the form that he signed waving his right to counsel was ineffective. He signed a waiver of his right to have counsel present during questioning by law enforcement. Not a general waiver of counsel. We signed that on two separate occasions. Moreover, in State Court in Ohio, the State Court in Ohio have held convictions to be void where there's not a colloquy conducted on the record and annotated on the record. And that's the case in Mr. Ladder-Milt's situation. They've also held a conviction to be void under Rule 22 of the Rules of Trial Courts in Ohio where the waiver of the right to counsel in the entry to plea is not presented on the record or annotated on the record
. That's the case in Mr. Ladder-Milt's case. The second issue I've raised is a plane error issue. It's a series of testimony by, I believe, five police officers that they were responding to an incident where a man had a gun. And I think that's more important in this case than in other cases. And against plane error, it was not objective to the trial. I think it's more important in this case because of the strength or lack of strength of the state's case. The complaining witness was a Sherri Lee Curry. She testified that the fire arm that the government presented as being the fire arm looked like it, but she couldn't say for sure it was it. Her father who was there said it wasn't it. And her brother, John Curry Jr., who was there, said he didn't even see a fire arm. None of the police officers saw a fire arm
. The father testified that it was a shotgun. The gun that was seized was a Ruger 1022, nothing like it. Shotgun, Ms. Curry was high on cocaine and alcohol when she testified. And I am cocaine and alcohol in the night of the event. So I think adding the police officer's testimony to their very weak testimony is more significant than it would normally have been. And I would suggest that the addition of that testimony is only mildly relevant. If at all, that it was extremely cumulative. It was much more prejudicial than a provative and that it does in fact constitute plane error and had it not come in. The result might have been different because of the strength or lack of strength, as I've said before, of the government's evidence. The last issue is whether or not a four level enhancement for having committed the offensive being a felony possession during the commission of a state felony was appropriate. My argument was that the facts of this particular case do not fit the state felony that was charged, which is wanting endangerment. On page 404 of the transcript, Judge Stamp, I think made the same error that the government workers this court to make
. And he made the decision that it constituted wanting endangerment because of the perception of threat by the individuals who were present, whether it was law enforcement officers or the curries. The perception of threat is not one of the elements of want and endangerment. Wanted and engendment requires the performance of an act, wantently, that has a significant risk of putting another endanger of receiving significant bodily injury or death. The first mistake I think is in deciding whether or not it's wanting endangerment based upon the elements of some other offense, which I suggest is brandishing rather than upon the elements of want and endangerment. If you look at want and endangerment in this particular case, you'll find that the gun was found racked in the kitchen that Ms. Curry said the gun was pointed at her. Her father said it was waived around. John Curry said he didn't see it. None of the law enforcement saw it. When the gun was found, it was unloaded. Not only was it unloaded, but there were no cartridges found anywhere near the gun in the house or in the vicinity. I would suggest to the court that you don't perform an act that puts another insignificant risk. And it's another insignificant risk of receiving serious bodily injury or death with an unloaded firearm
. Okay, well, the government makes the argument, however, it doesn't not that you're talking about a very unstable, volatile situation. And when somebody is there with a gun and under those circumstances that it can precipitate a response. How would you respond on that? Well, first I think you have to parse the elements. And the parsing of the elements is that the person has to perform an act with a firearm that puts another endanger. It's not perform an act with a firearm that encourages law enforcement to put himself in danger, but another in danger, someone other than himself. What about other occupants at the house? Wasn't there a young boy in the house? There was a young boy in the house. The arrest was conducted in the driveway outside, not in the house. The young boy was at least at Pearson the record two rooms away. And there's no evidence whatsoever that the acts of Mr. Lawnermill put his younger brother in danger or anyone in danger with the end. Unloaded gun. He was arrested at gunpoint, but that was not an act performed by Mr. Lawnermill, which is what I think the statute requires
. If you abide the government's argument, stop lifting or any offense that's committed by a person puts another person in danger. In fact, you can argue that DUI, which has been rejected as being a violent crime, puts another endanger because. When the police come up on a person who's driving strange, I can tell you if you get out of your car and reach for your wallet, you're about to get shot. Had that happened. Any offense that you commit raises a dangerous law enforcement or react or overreact in a manner that may cause danger to you. And if they're bad shots, I suppose to. My standards, but the statute is not aimed at that particular type of conduct. It's aimed at putting another person in danger by a specific act with a specific firearm. Okay, let me let me ask you just one other question. And if I could, Mr. Hunden, you said the witness was was fairly unspecific about the issue of the gun that miss of Shanley Curry. But didn't she referring you to 205 in the appendix? He threatened to put a few rounds in me and threaten me with the gun. I remember him having the gun
. He pointed the gun at me. Do you know what kind of gun it was? Can you describe the gun as to color? I remember it being long like a shotgun. And it being brown. I saw that gun in the house before. So she's pretty clear. This was a gun, isn't she? Well, if you continue, she's going to say, I can't say that that is the gun when she's talking about the gun. Right, but she was pretty clear that it was a gun. She was very clear that there was a gun. Okay, absolutely. She was also very clear that the gun was pointed at her. Her father was less clear. He said, that is not the gun. And he said it was waived around
. Her brother was even less clear. I didn't see a gun, but I was threatened. And I was threatened with body bags. But don't that just go to the weight of the evidence? It's in time to believe who the won't believe. Excuse me, Your Honor. It does not, it doesn't all that go to the weight of the evidence. Absolutely. And the jury is in time to believe who the won't. Absolutely. And I'm not suggesting that sufficiency of the evidence is an issue that's before the court. What I am suggesting is that in terms of the weight of the evidence, the addition of the testimony of the five police officers, that first, we're going there because there's a guy with a gun there, adds to that weight, which is I think slim. And secondly, when you add in, not only am I going there because there's a gun, I'm thinking about calling out the SWAT team, because there's a gun, adds to the weight, the slim weight of the evidence of a miscarry, and Mr. Curry and Mr
. Curry. I don't think it's a sufficiency evidence question at all. I'm done if y'all were done with it. Okay. Thank you very much. Thank you. Mr. Bernard. If I pronounce that correctly. Mr. Bernard, yes. Okay. Good
. They please the court. I'm Randy Bernard. I've been involved with the case since complaint was filed back in March of 2011. As this court is aware, it came up in a motion to express that was granted, was reversed, and then I tried the case. With respect to the first assignment of error, Mr. Herndon concluded that there was clear error, but as this court is aware, the standard that's applied, there was no objection at trial to the background testimony of the officers. There's no objection either on hearsay grounds or rule 403 grounds. So the standard that's applied is the plain error standard. And obviously the three factors in that standard are that there be an error, that that error be plain, and that it affect the substantial rights of the defendant, and otherwise affect the outcome of the proceedings. As indicated in my brief, the United States position is there was no error whatsoever. The testimony of the officers concerning the background of the dispatch call, and what they did in order to get to the premises and prepare for whatever they were going to do was simply that background testimony. The United States has cited to the love case which recognized that those statements, such statements are not offered for the truth of the matter, asserted also reference the bullet opinion. I would note for the record that the discussion by the government actually related to Judge Russell's dissenting opinion where he again recognized the, where the justice recognized that background testimony and the fact that such testimony is not hearsay. So first of all, there's no error. In fact, if you look at the transcript, counsel and the brief makes much ado about that testimony claiming that it was somehow turned the tide of the trial or caused some effect on the trial. Testimony for each officer, and each officer was important and necessary because each did a different thing at the scene. Some controlled the curries, some arrested the defendant, the others went and did the protect the sweep of the home. So all six officers. All of them didn't have to say I was what they were responding to initially. I mean, it is sort of system overload. Isn't your argument really that they can't meet the plain error standard? I believe they can't meet the plain error standard, but again, is it overload at the time? It didn't seem overload. You call the witness to the stand. Again, if you're in the trial, it's much more apparent that you call the witness to the stand. How did you get, what did you do? How did you get there? Or why were you there? I think for each witness, it was simple background. Is it system overload? I don't think so because once you look at their testimony, we're talking about one or two answers. And if you look at the actual testimony of the officers, most of them said I received a dispatch call of a domestic involving a weapon
. So first of all, there's no error. In fact, if you look at the transcript, counsel and the brief makes much ado about that testimony claiming that it was somehow turned the tide of the trial or caused some effect on the trial. Testimony for each officer, and each officer was important and necessary because each did a different thing at the scene. Some controlled the curries, some arrested the defendant, the others went and did the protect the sweep of the home. So all six officers. All of them didn't have to say I was what they were responding to initially. I mean, it is sort of system overload. Isn't your argument really that they can't meet the plain error standard? I believe they can't meet the plain error standard, but again, is it overload at the time? It didn't seem overload. You call the witness to the stand. Again, if you're in the trial, it's much more apparent that you call the witness to the stand. How did you get, what did you do? How did you get there? Or why were you there? I think for each witness, it was simple background. Is it system overload? I don't think so because once you look at their testimony, we're talking about one or two answers. And if you look at the actual testimony of the officers, most of them said I received a dispatch call of a domestic involving a weapon. It wasn't as specific as a defendant makes it. Now, the officer also said, I understood that Jordan, Laudermont, and Sean O'Leary, were involved. But again, I don't think it's system overload. And I certainly don't think it has the prejudice, or had the prejudice, or the fact that the defendant has given it. However, alternatively, assuming that it was not necessary, the question is, and that's where we get the plain error analysis. First of all, was it plain if there was error? If it was here, say was the error plain. Again, during the trial, simply was background testimony, no objection, and did not appear that it was prejudicial whatsoever during trial. And even after trial, looking at the entire record, it doesn't appear to be prejudicial, certainly not. Does not have, or did not have the same effect that the Pellance Council gives it. More importantly, however, the key question is, did it affect the outcome of the proceedings? Did it affect the substantial rights of the defendant? And I submitted it did not, as the court has already recognized. Sean O'Leary, who was the declarer on the 9-1-1 call. She's the one that called the 9-1-1 said, hey, Jordan Laudermont has a gun. He's pointing at me
. It wasn't as specific as a defendant makes it. Now, the officer also said, I understood that Jordan, Laudermont, and Sean O'Leary, were involved. But again, I don't think it's system overload. And I certainly don't think it has the prejudice, or had the prejudice, or the fact that the defendant has given it. However, alternatively, assuming that it was not necessary, the question is, and that's where we get the plain error analysis. First of all, was it plain if there was error? If it was here, say was the error plain. Again, during the trial, simply was background testimony, no objection, and did not appear that it was prejudicial whatsoever during trial. And even after trial, looking at the entire record, it doesn't appear to be prejudicial, certainly not. Does not have, or did not have the same effect that the Pellance Council gives it. More importantly, however, the key question is, did it affect the outcome of the proceedings? Did it affect the substantial rights of the defendant? And I submitted it did not, as the court has already recognized. Sean O'Leary, who was the declarer on the 9-1-1 call. She's the one that called the 9-1-1 said, hey, Jordan Laudermont has a gun. He's pointing at me. He said he's going to put some rounds in me. And we played the 9-1-1 call. That was admissible under Davis. Sean O'Leary testified, and she was specific. The firearm was pointed at her. Threats were made, and she was never, never backed off. There was substantial extensive prosecution examination of her. Even her father, Mr. Kerry, indicated that there was a firearm present. Now, trial, it's true. He wasn't sure and said it, in fact, that wasn't the weapon that was there. However, you couple their testimony. The specific 9-1-1 call and the specific, specific testimony of Ms
. He said he's going to put some rounds in me. And we played the 9-1-1 call. That was admissible under Davis. Sean O'Leary testified, and she was specific. The firearm was pointed at her. Threats were made, and she was never, never backed off. There was substantial extensive prosecution examination of her. Even her father, Mr. Kerry, indicated that there was a firearm present. Now, trial, it's true. He wasn't sure and said it, in fact, that wasn't the weapon that was there. However, you couple their testimony. The specific 9-1-1 call and the specific, specific testimony of Ms. Curry with the fact that when there was a search of the premises, only one firearm was located, and that was a Ruger 22. And then you add into that the fact that during the jail calls to the defendant when his sister asked him, why'd you have a gun? His response was, I didn't have a gun. It was not. I didn't have a gun. His response was, well, because I thought, and there was an explitative relating to Ms. Curry, I thought she'd pay me my money. And it wasn't loaded. There were no bullets in it anyway. So you couple all that evidence. And the fact that there was no objection. You couple all that with a background testimony of the officers. And it's quite clear that the evidence was overwhelming, was specific. And despite the cross-examination of the witnesses, there was much more corroborating evidence than a pellant has indicated
. Curry with the fact that when there was a search of the premises, only one firearm was located, and that was a Ruger 22. And then you add into that the fact that during the jail calls to the defendant when his sister asked him, why'd you have a gun? His response was, I didn't have a gun. It was not. I didn't have a gun. His response was, well, because I thought, and there was an explitative relating to Ms. Curry, I thought she'd pay me my money. And it wasn't loaded. There were no bullets in it anyway. So you couple all that evidence. And the fact that there was no objection. You couple all that with a background testimony of the officers. And it's quite clear that the evidence was overwhelming, was specific. And despite the cross-examination of the witnesses, there was much more corroborating evidence than a pellant has indicated. So I do believe the answer to the question is maybe a long way to get there, is that even if it was not necessary in its entirety, the defendant still can't meet that third prong of the plain error challenge. And of course, this court in order to, even if those prongs were met, this court would still have to look at whether it had seriously affected or undermined the fairness, the reputation of the judicial proceedings, and it did not. It simply did not. And that is why the defendant's arguments with respect to Simon, a variant number one, should not be well taken. What about the point for the uncountable, Mr. Metably? Looking at the uncount, I do believe there was a question, I still believe there's a question as to whether there was an adequate waiver of counsel. There was certainly two forms that were filled out on May 2nd and May 7th, before the defendant actually entered his pleas on May 7th. I think under the Shelton case, Alabama versus Shelton, the uncountable misdemeanor, the two misdemeanor pleas, in this case, would fall under that they should have been counseled. Question is, did the defendant waive his right to counsel through those waivers? There's nothing about right counsel trial. It talks about right counsel during making the statements, and that sort of thing. There's nothing in there about waiving counsel trial. And that's what I was getting at, Mr. Hurned, and it argued below that there was a waiver of the Fifth Amendment versus the Sixth Amendment, right? And I think there's some facial pill to that
. So I do believe the answer to the question is maybe a long way to get there, is that even if it was not necessary in its entirety, the defendant still can't meet that third prong of the plain error challenge. And of course, this court in order to, even if those prongs were met, this court would still have to look at whether it had seriously affected or undermined the fairness, the reputation of the judicial proceedings, and it did not. It simply did not. And that is why the defendant's arguments with respect to Simon, a variant number one, should not be well taken. What about the point for the uncountable, Mr. Metably? Looking at the uncount, I do believe there was a question, I still believe there's a question as to whether there was an adequate waiver of counsel. There was certainly two forms that were filled out on May 2nd and May 7th, before the defendant actually entered his pleas on May 7th. I think under the Shelton case, Alabama versus Shelton, the uncountable misdemeanor, the two misdemeanor pleas, in this case, would fall under that they should have been counseled. Question is, did the defendant waive his right to counsel through those waivers? There's nothing about right counsel trial. It talks about right counsel during making the statements, and that sort of thing. There's nothing in there about waiving counsel trial. And that's what I was getting at, Mr. Hurned, and it argued below that there was a waiver of the Fifth Amendment versus the Sixth Amendment, right? And I think there's some facial pill to that. The record is unclear whether there actually was a waiver of the Sixth Amendment, right to counsel. So I think we can assume that the position is the government helped the district court at that time, by saying maybe you don't want to include those points. Judge, before we send it up, did you all help him out a little bit there? I don't think I helped him out in a sense that, basically, I don't think the standards been met. The court moved into it and said, I do believe those points caught, or that I do believe that they were, that the probation officer should be sustained. Looking back on it now, as I look at the record, look at the entire transcript, I do believe there's an argument that those unconcilled that one criminal history point should not have been counted. The question is whether the inclusion of that created any prejudiced or harm. The defendant's record, he's got the gun conviction in this case, he's got a prior drug, prior domestic assault, he's a criminal history six, whether we include that, one criminal history point or not. I believe Mr. Hurned, the trial court said it might affect some BOP classification possibly, but here, I think in the brief, it says that it probably, well, have an effect that as I heard Councillor A indicated that he believed there actually was an effect, however, I think that's all speculation. I don't think the defendant has proven any prejudices that's resolved, in fact. I don't think there is any prejudice, particularly the fact that he's a criminal history six, no matter what, he's got those prior convictions, including this gun conviction, all of which are not being attacked. He's just simply attacking the driving while suspended and the driving while under the influence of a controlled substance. So I don't believe that there's any proof or evidence, in fact, I doubt, sincerely, that that would affect his BOP classification much more so than any of the other convictions and his criminal history category
. The record is unclear whether there actually was a waiver of the Sixth Amendment, right to counsel. So I think we can assume that the position is the government helped the district court at that time, by saying maybe you don't want to include those points. Judge, before we send it up, did you all help him out a little bit there? I don't think I helped him out in a sense that, basically, I don't think the standards been met. The court moved into it and said, I do believe those points caught, or that I do believe that they were, that the probation officer should be sustained. Looking back on it now, as I look at the record, look at the entire transcript, I do believe there's an argument that those unconcilled that one criminal history point should not have been counted. The question is whether the inclusion of that created any prejudiced or harm. The defendant's record, he's got the gun conviction in this case, he's got a prior drug, prior domestic assault, he's a criminal history six, whether we include that, one criminal history point or not. I believe Mr. Hurned, the trial court said it might affect some BOP classification possibly, but here, I think in the brief, it says that it probably, well, have an effect that as I heard Councillor A indicated that he believed there actually was an effect, however, I think that's all speculation. I don't think the defendant has proven any prejudices that's resolved, in fact. I don't think there is any prejudice, particularly the fact that he's a criminal history six, no matter what, he's got those prior convictions, including this gun conviction, all of which are not being attacked. He's just simply attacking the driving while suspended and the driving while under the influence of a controlled substance. So I don't believe that there's any proof or evidence, in fact, I doubt, sincerely, that that would affect his BOP classification much more so than any of the other convictions and his criminal history category. And the burden to show prejudice in this case would be all offended, wouldn't it? Yes, Your Honor. And that's why I don't think the defendant has shown that. I think the defendant has shown that it probably should not have been counted, that it should be 15, as opposed to 16 points, however, that does not affect anything, and the defendant has improved that it's affected anything. With respect to the second assignment of the assignment, I do believe as Justice Keenan noted, in this case, a firearm was possessed. That's what the conviction resulted in, that's what the witnesses said. Admittedly, it was not loaded. I don't think there's any proof that it was loaded or that there were any cartridges located near the weapon. But I don't think the Hallbird case stands for the proposition that a firearm does not have to be discharged, pursued to one endangement. But what I think is important about that case is that it sites to some other state jurisdictions, which stand for the proposition that an unloaded firearm itself can present a reckless endangerment or one endangement situation. And here, it is based upon the facts of this case. I don't know the shoplifting example that Council gave, really doesn't address the facts of this case in which we do have a firearm. We have a 911 call where somebody is upset. It's a volatile situation in which Sean Lee Curry's on the phone saying he's got a gun, he's threatening to shoot me
. And the burden to show prejudice in this case would be all offended, wouldn't it? Yes, Your Honor. And that's why I don't think the defendant has shown that. I think the defendant has shown that it probably should not have been counted, that it should be 15, as opposed to 16 points, however, that does not affect anything, and the defendant has improved that it's affected anything. With respect to the second assignment of the assignment, I do believe as Justice Keenan noted, in this case, a firearm was possessed. That's what the conviction resulted in, that's what the witnesses said. Admittedly, it was not loaded. I don't think there's any proof that it was loaded or that there were any cartridges located near the weapon. But I don't think the Hallbird case stands for the proposition that a firearm does not have to be discharged, pursued to one endangement. But what I think is important about that case is that it sites to some other state jurisdictions, which stand for the proposition that an unloaded firearm itself can present a reckless endangerment or one endangement situation. And here, it is based upon the facts of this case. I don't know the shoplifting example that Council gave, really doesn't address the facts of this case in which we do have a firearm. We have a 911 call where somebody is upset. It's a volatile situation in which Sean Lee Curry's on the phone saying he's got a gun, he's threatening to shoot me. The officers all respond armed. In fact, they have long weapons out. If you notice in the transcript at one point, they actually stop a car that's leaving the Laudermilt residence and take the occupants of that car out of the car by gunpoint because they're not sure if any of the subjects in the domestic or in that car, they go up to the property with their guns pulled. They're hiding in the weeds and themselves worried that this is a situation where there might be a sniper situation. The defendant comes out there, rest of them at gunpoint. The curries are there at the same time, not necessarily at that point, caught in any crossfire situation. Then you have the 15-year-old son, the boot, who's in the house when they're doing the protective sweep with their guns drawn. I mean, I can't envision a more volatile or dangerous situation where you have officers forced to respond in this manner because the defendant's one that chose to grab the gun pointed and threaten it. People, yeah, it may not have been unloaded, but that does not mitigate or minimize the dangerousness of the situation due to the circumstances of this case. And for that reason, I do believe that assignment errors should not be well taken as well. That's all I have. Thank you. All right
. The officers all respond armed. In fact, they have long weapons out. If you notice in the transcript at one point, they actually stop a car that's leaving the Laudermilt residence and take the occupants of that car out of the car by gunpoint because they're not sure if any of the subjects in the domestic or in that car, they go up to the property with their guns pulled. They're hiding in the weeds and themselves worried that this is a situation where there might be a sniper situation. The defendant comes out there, rest of them at gunpoint. The curries are there at the same time, not necessarily at that point, caught in any crossfire situation. Then you have the 15-year-old son, the boot, who's in the house when they're doing the protective sweep with their guns drawn. I mean, I can't envision a more volatile or dangerous situation where you have officers forced to respond in this manner because the defendant's one that chose to grab the gun pointed and threaten it. People, yeah, it may not have been unloaded, but that does not mitigate or minimize the dangerousness of the situation due to the circumstances of this case. And for that reason, I do believe that assignment errors should not be well taken as well. That's all I have. Thank you. All right. Thank you. The act of wanting and dangerment is designed to impact on the action of the person with the fire arm, not the action of the person, around the person with a fire arm. The only case at West Virginia is addressed with sufficient evidence had a case where it was a 6.5-pound trigger pull, a loaded fire arm pointed at the victim, a threat, consumption of alcohol, finger on the trigger, and the safety obviously off. This doesn't even come close to that. When the government argues that other people may have performed acts that place other people in danger, it isn't looking at the elements of this particular offense. It's extending those elements beyond what the legislature of West Virginia intended when it passed. This issue should be judged solely upon the elements of the offense. And I would suggest to the court that one of the important issues that hasn't even been addressed is the fact that the trial judge analyzed this not based upon the elements of the offense, but based upon page 404 of the transcripts, the joint appendix and volume 1, he says, I think there's enough perception of threat by others for me to find the four level enhancement. So he's using the wrong standard even if the government is correct, which the government is not. I think the objection to the four level enhancement was and is well taken. Our sir, thank you very much. The court will come down to greet council at this time