Legal Case Summary

The honorable, the judges of the United States Court of Appeals for the Fourth Circuit. OAA, OAA, OAA. All persons having any manner of former business before the honorable, the United States Court of Appeals for the Fourth Circuit are admonished to draw a nine, give their attention for the court, it's now sitting. God save the United States and the honorable court. Be seated. When I welcome you all to the Fourth Circuit today, please to have you here. Two interesting cases. The first, the United States versus Jose Brand. Ms. McGuire. Good morning, Your Honors. I'm here because the District Court aired in denying our rule 29 motion on the 924J count, J count, count in count three of the indictment in this case. Our position is based upon the special verdict form that was provided that the jury was, in fact, properly found the facts and properly instructed and did not find an element of the 924J offense, which is the use of a firearm. In this instance, the government has conceded that 924C and 924J are, in fact, separate offenses. And because they are sub... I think I've conceded that, but that doesn't mean we have to agree with it. Your Honor, that is true. I guess you don't have to agree with them, but I think that you're bound by the record that was made at the District Court. And clearly at our arguments at the time of the 924... I mean, I'm sorry, the rule 29 motion, the government conceded that under DOJ policy, it is their position based upon the Julian case that 924C and 924J are in fact separate offenses. That doesn't matter. We decide what the law is and then we apply to the facts of the case. Because you could maybe cut the justice department to get up and say we can see that having crack cocaine isn't illegal. I know they would, but you get my point. What they can see doesn't matter. Okay, well, actually, it might. You stipulate to the facts, but you can't stipulate to the law. Okay. In the case, we may have trouble figuring it out. I think you may need your house figured it out. Do you think there was a conviction under C? Yes. In count three? In count three, we believe that there was a conviction under C. Why isn't it a duplicitous indictment? It charges two offenses. It does charge two offenses and in retrospect, it probably would have been better to separate them out into separate counts

. But this all happened in a pre-aligned world and they were in the same count. And it is our position that through the special verdict form, the jury was properly instructed. It is a duplicitous indictment. What's that do to you and the government? That duplicity, I mean, charges multiple of two offenses in one indictment, right? Correct. In one count, two charges in one count. That's not necessarily defective. It is not if the jury was properly instructed. And it is our position that in this case, through the special verdict form, the jury was properly instructed on both J and C. Because the elements of each offense were presented in the special findings that were... Would C be a lesser included offensive, J? C is not a lesser included offensive, J. Because J requires a separate element, which is the use of the firearm. I'm sorry, it is the use of a firearm to cause the death of the person. And that is a separate element of J that is not present in 924C. And so therefore, it is our position that they are in fact separate offenses with separate elements and are not lesser included offenses. You argue to the district court that they were separate offenses? Yes, we argue to the district court that they were separate offenses. The argument that was a duplicitous indictment? No, I did not argue that it was a duplicitous indictment, but we did argue that they were separate offenses at the time of the Rule 29 motion. If what happened before that, when you were doing jury instructions? Right. When we were doing jury instructions, we believed that the special verdict form that was, in fact, drafted by the government in this case, adequately set forth the elements of both... Yes, you're right. We did have a jury... We did have jury instruction conference in charge and we all agreed to it and there was no objection... No objection to the instructions. And they were given as you all agreed to. Correct? Yes. And there was no objection after the thing came in. I mean, the judge even commented on from the bench, it looks like it's an erroneous verdict. Did you object to the verdict form? No, we did not object to the verdict form. So the judge gave and the verdict form sent to the jury, you did not object to that. That is correct

. We believe that the jury was properly instructed on both 924C and 924J, because... And this is, I think, a point... I thought... The district court judge said in order to get a conviction here that you had to find all the elements that are in J, including death. And there wasn't anything set out separately that would cover C. Your honor, we'll all do respect it. I'm not sure that I think that that's what the record reflects. And I'd bring the court's attention to J, A, 1268, which is where, in fact, the court is instructing the jurors on count three. And the district court is very clear with them that if you find the defending guilty of count three, you then have to answer the next questions. And then he goes through with them... Wait a minute, wait a minute. Where does he say in instructing the jury before he gets to the special verdict about that they have to find death in order to find guilt? I don't think he says you have to find death in order to find guilt, because this was not a death penalty case. It was not authorized for death. So... But in order to get a conviction under J, you would have to, right? So in order to get a conviction under J, you have to show that there is a use of a fire arm. You don't have to show that that... The argument is if you meet those elements under J, then death is a potential sentence, but death is taken out of the table by the government. That is correct, Your Honor, thank you. It was in any term, reviewers, or life. That is correct. I don't mean death, individual subject to death, but there was a death, it caused a death of the victim. And that is what the statute says. Right, use of the fire arm. There is a person who, in the course of a violation of subsection C, this is subsection J. Right

. In the course of a violation of subsection C, causes the death of a person through the use of a firearm. Shell, if it's murder, be punished by any term of yours or for life. That is correct. Is that your position as what you were convicted of, or you convicted of both offenses, or two offenses in there? No, we were, I believe that Mr. Brand was convicted of the commission of a 924C violation, which is the discharge, the aiding and abetting, the discharge of the fire arm. What difference does J make in this case? The difference that J makes in this case is that a 924C conviction under discharge has the mandatory minimum of 10 years, whereas the conviction under J is any number of years up to life. So in other words, is the mandatory minimum that bothers you? Well, what also bothers us, I can't figure this out. Because the way I looked at it under C, or under J in this case, and I'm not sure J is a separate, that's quite frankly. I bet it's not written in an unfulfilled opinion, this says it's not in this circuit. Will you wear that? No, you're right. Well, at any rate, in this case, and it looks to me like, C allows a term of years, or life, J allows a term of years for life. The court has all the facts in front of it, and it decides that under these facts, you don't care about the mandatory minimum. Don't they give a life sentence? Didn't the court give a life sentence? The court gave a life sentence on count three. So why would that matter then? Why would it matter if it's C or J? You just told me, if I understand you correctly, because I've been puzzled over this as I reviewed the case, you said you are concerned because J doesn't have a mandatory minimum, and C does. Now what you said? Yes, that's a distinction between the two statutes. That's a distinction, but why does it matter in this case? Because I'm just asking because the court looked at it, and the court didn't care anything about that mandatory minimum. They didn't send us near that mandatory minimum. They gave life. They gave the maximum. So in the real world, does it matter? It really does matter because there's a whole issue, which is our second issue in the brief about if you are convicted under J, does that require the consecutive sentence that 924C conviction carries? Does he require a consecutive? A conviction under 924C does require a consecutive sentence. What does J matter? We were to say this is conviction under C, in which you can see, what do we even need to talk about? Well, we need to talk about J because it's a legal question that needs to be decided. I believe as to whether J is a separate offense from C. That matter in this case, what would it matter in this case? Third circuits, that it didn't matter. Well, if your honor is talking about the Barrios case, our position is that the Barrios case is not correctly decided because what they did is what I think your honor may be suggesting is kind of taking a functional approach to this as opposed to a literal approach. In this case, in front of us right now, it would matter, perhaps, if death had been included and death had been given under the death sentence had been given under J. But it wasn't even a factor in this case. The way it makes me to again and just tell me why it matters. You say there is a conviction under C. Yes. A fair reading of the charge in the verdict form, you can see what you do. That sentence, isn't it correct? That sentence, under C alone, would be a term of years or life. Yes, with the mandatory minimum for discharge, of course. And it has to be consecutive. Correct. Correct. In this case, under J, if you look at that separately, it would be a term of years or life. Same thing, right? And we just don't know if it has to be consecutive or not

. Right? You want to argue that to us. Correct. What does that matter? What does that even matter in this case? Why does that matter in this case? As to J. Well, I think it matters because the court convicted Mr. Brand of a of a count in which the jury acquitted him on in terms of. If we can look at that and agree with you, that it's kind of convoluted, but in when you just, just what you said, we could accept your argument, say this is a conviction under C. You could win. You want to argue against you, when did the case? I'm not trying to be flip, but it seems to me you can win under C. You know, I think it's a fair reading that that was a charge under C. And the element says you agree to in the verdict led leads to a conviction under C. I'm just saying that's the case. What does it matter? You said because C has a mandatory minimum. This judge didn't care about a mandatory minimum in sin of sin, did he? I can't speculate. I would I would concede he gave the life sentence. Right. I don't think he cares about 10 a mandatory mental. I got two life sentences. He'd because count to carried life as well, a mandatory life sentence. Are they consecutive? Well, that is the whole point right now. Yes, they are. They are consecutive now. They shouldn't be. Or you're saying the judge mistakenly believed he had to make them consecutive. That's correct. And so that was a sentencing error by the court because, but that's only if this court finds that the judge was correct in finding that Mr. Brand was convicted under J. So if this court back to the jury instructions on count three, which I'm looking at now at 1259 and 1260. And the district court, as far as I know, you tell me if I'm wrong, this is the only charge on count three. It tells the jury if you're going to convict the defendant, you have to find three elements. Committing the crime under count two, it tells them what that is. In relation to the commission of count two, he used character discharge to firearm and three that the firearm caused the death of Mr. Gonzalez. That seems to me to be all the elements of J. And that was what the conviction was rendered on count three under these instructions and only these instructions. Isn't that right? These are the instructions that the jury, the trial judge instructed the jury gave them these elements and they came back with a guilty verdict. Wouldn't that indicate that they found him guilty of the crime that was charged and those are the elements of J. Whether it's a separate crime or a sentencing enhancement

. No, you're honor because both the 924C and the 924J were charged in count three, which is why there had to be special findings and count and J has an element of use that was not found by the jury. And I don't before there were any special findings, the jury said he's guilty of count three. He did, but then guilty, guilty of count three. And if they just stopped right there, if you disregard any findings, what's the result here? He's guilty of what? Well, I think that if he's, if he's just guilty of count three, you don't have the charge in count three. Whether, if it's, if it's two offenses, he's guilty of both of them. Well, I don't really think that that's a fair reading of the record because at 1268. Reading of the verdict, because as they said, he's guilty of count three. And you didn't object to the verdict, the judge offered to send it back. Or talked about sending it back and you and the prosecutor said, oh, we'll settle it. We'll, we'll, we'll fight about it from here on. I guess leave it to the court of appeals. We trust the court of appeals to get it taken down. And you'll, I mean, that might have settled the whole thing. I mean, judge, pain, senders, maybe a problem here. What's counsel want to do? You all didn't want to do anything. I mean, if we review, if there's an error in there and that verdict seems to me, it's reviewed for playing error. If we knew what we were looking, whatever we're looking for. Oh, as you all said, we don't want to go back and about to get straight down. Well, you're right. I think that if the court is to look at 1268, the judge pain makes it clear when he's instructing them on count three, that simply entering a guilty verdict or it is not enough if they find him guilty. And I see my time is just about to expire. So I'll make this very quick. But then he goes on and 1268 of the record to say that you have to check which ones plural you think are correct and be unanimous in that finding. The instructions. I thought about the verdict. They got the instructions. You didn't object to those either. So no objections preserved. That's all reviewed would be reviewed for playing error. If we're going to figure out something wrong with those, but on the verdict form, they plainly say straight up guilty of count three. Whatever's in there, right, but then they went on to address the special findings and they only found discharge. That he discharged the discharge. Plain English, you sure used it. Well, you're on with all due respect. I don't think that that's. Discharge the opponent trigger. It's that kind of a weapon

. What did you have to pull the trigger? Yes, but, but I think that the case all makes clear and the Supreme Court has made clear that you, Sprandish and discharge are separate elements of 924 C. They have separate meanings and the Dean case while we certainly are not sitting here, advocating that this is. Let me add your time. Let me just ask you this just so I'm sure what was Mr. Brand's sentence to on count one. Count to honestly, you're on count one. I can't remember on count to it was life. Okay. All right. Thank you very much. Thank you. And my encounter was the was the re co murder. Yes, your honor. Thank you very much, Mr. Boyard. You say some time. Mr. Cook. Why didn't you all do a better indictment here? You all the United States of America. Government. Your honor. I don't think there's a problem with the indictment. There's the special. This is this if that's if these are separate offenses in J and C. That if there is a duplicity problem, it is certainly waived by not having made a motion on a rule 12. This courts opinion and king, I think, address that. What's up with the situation today as to whether it's separate offenses or not. It is the government's view is that separate offenses and there are a couple of reasons. So you meant that it's duplicitous because you can only you should know you should only charge one offense in each count. You should only charge one offense, but our view is that C is. So you can charge this in two counts. Well, I think that you can have a lesser included within a particular count. I don't think that that. We can have a lesser included in the count and judge a G.S. Question about that. You take a position and it's a lesser included defense

. Yes. Which one's the lesser included? C is the lesser included. I think that that flows fairly naturally from the fact that the text of J says. A person who in the course of a violation of subsection C. Then if a slasher included, you can only be convicted of one or the other. Right. And here the verdict says guilty of count three. Right. And how do we know which one they're convicted of? Who do we read in favor of? Well, the jury instructions in this particular case only. Come back to jury structures. No objections. So that was which. How do we read the verdict? The verdict is a parody. We're talking about the jury that nobody objected to. Correct. The verdict form says we the jury find them guilty of count three. The jury was given instructions on count three that were solely J. And so you ended up with a conviction under J, which is what the judgment form. Judgment reflects in here. But if we if we were to decide this is a government's position. If we were to decide there's not a conviction under J, then count free fall. There's nothing on the count free. Is that correct? I think that's it's all is all J as a separate offense or no conviction under C. There were not jury instructions on C. I think that's a yes or no there. Yeah, I agree. But I mean, here's what I think is getting lots of your position. It's count three is a conviction of J only. It was convicted of one count. Baphic convicted move J they excluded C because it was a lesser included. That's right. But I really don't think that this is critical. Well, you have to figure it out. Right. It was happens that we knew what he was convicted of. And it would have helped a lot of y'all to go out and things right now. Well, not critical to know what a person can think of that

. Why is that not critical? Well, I think it is clear that it's J, but the what the well clear to you may not be clear to us is the point. So it's not a question of whether or not it's clear. The question is you suggested it doesn't matter. What three doesn't matter. And I think perhaps it does. Well, let me go back to what I'm doing. Life sentence on it. I'm sorry. He's doing a life sentence. That's right. On whatever he was convicted of. That's right. Sam, you know, just as a matter of making the system look right. Oh, absolutely. I'm not disputing that. He ought to know the system. I don't know. But I was convicted of it. But under the substance under substance in this case. Why? Just tell me in a quick sentence why. Why it doesn't matter whether we see three is J or C or one or both. Why? Why doesn't that matter? Well, and here, let me explain that. What I take to be. Right. What would I take to be the critical issue in this case is the problem with count three is one that would be shared by C or J. Let me ask you this. Just talk to you there. The other side is set up and they said you'd conceded. It was two different offenses. Right. The other side now is standing up and conceding and agreeing that it's conviction under C. You disagree with their concession? No, and that's enormously helpful for what I think is the key point about why this J-conviction might be in question. If you accept their position at C, right, difference does it make in this case? It makes it not. And let me explain that again. It makes no difference. And I can explain that I think very simply. Can you explain why you're arguing it then if it didn't make any difference? Yes

. I mean, and I think that, well, let me first explain why if you're in the 11th circuit, for example, as a prosecutor. I don't care about that. We're in the 4th circuit. And we have this case in front of us. You're a good lawyer. You've been in front of me before. Tell me, you heard my questions to the defense, the lawyer. What does it matter in this case? She said it matter because of mandatory minimum, but realistically, that didn't matter in this case. The judge didn't say, can I give him any less than mandatory minimum? No, I'll give him why. It didn't matter. What does it matter to you? Why are you arguing about J? Well, it does matter because he was convicted under J and... And if you accept her conviction that he was convicted under C, you accept that. You accept that concession. What do we have for this side, J? Well, you wouldn't have to, but let me... Make monos too. No, you don't... I'm content if you want to affirm saying this is a C. You satisfied with that? Yes, but let me get to what I think was... What I understood to be the core problem with this verdict form in the district court, and on appeal that I feel has gotten a bit lost. What the core problem was is you had a verdict form that had three options for a special finding. Carry, use, discharge. And the jury only checked the discharge box. Now, that then led to the argument that they didn't find, use, or carry. But of course, use or carry has to be found for both C and J. So, their position that there was a C conviction here is puzzling in the sense that their whole point was that they didn't check... By not checking use or carry, the jury meant we are saying that use or carry did not occur. And if that were true, you couldn't have a C conviction here because use or carry is required for C

. So, the government's position in this case is... The defense says, by the way, don't you think the charge and the verdict form could have been clearer than it is? Oh, absolutely, I agree with that. So, now, in a case where it's not completely clear, just let me say this, but it's not articulated in the best fashion. And there's some question whether J is mandatory or not as far as many consecutive centers. And the defense says, we think you can read the jury instructions and the verdict form fairly to say a conviction under C. Right. And therefore, we talk about Senate and would lose like you would get like. The government stands up and goes, nope. Now, I've had... Look, I'm perfectly content for this court to avoid the issues of J by just saying this is a C conviction, C as a maximum of life, the sentence wouldn't change one bit. And that's the end of the case. We say for purposes of this case, it doesn't matter whether it's a C or a J. I agree. I mean, the only reason I resist that is that the core problem the defendant has identified is that the jury didn't check user carry. And if that were really a problem, that would be a problem with the C and it would be a problem with a J because you got to find user carry. But we don't have to accept their argument for their concession, do we? No, you don't. And we say a fair reading of the instructions as a whole lead to our determination there was a proper instruction under C and looking at the verdict, whatever it is, it clearly as has conceded in the government's willing to accept all sorts of things in that light is a conviction under C. Now, but if we say C or J, then all we face with the question under J of mandatory or permissive consecutive. Yes, yes, yes, you see the way I say just avoids that issue. That's that's true. And it might allow for you and an defense attorney in a case where everything else is not a mishmash, it's cleared straight up the elements of their verdict forms right. And then you would come back in front of us, you or somebody, you know, you're reprimanding the position and say this question on J is now fairly presented and it's important and necessary to this case. I know your position is J is important to the world. And so was the other side and it may well be, but you understand my distinction about important to the world and important to the case in front of it. Sure, I'm not trying to get extra issues decided. I just want my, you know, convictions. Impact is. If it's a J conviction on the Senate. I don't think that there is any on the two concurring seconded life sentence. I don't think there's. If the J conviction we sustain the sentences. Right. The judge didn't have any discretion. Right. He had no discretion of its a J conviction. Right. If it's a C conviction, he had discretion, one of me had discretion. No. Well, one of me had discretion on whether to make a consecutive or not. That's all I'm trying to know. No, both of them. No, no, no, no. It's an open question as to J isn't it? Right. I mean, there's a non published opinion of this court, Hatton that said that it's, it's consecutive other circuits. We can't say the other circuits. The other circuits are and. I can run through them very. Whether it's consecutive or concurrent. Right. They disagree. Only the 11th circuit has said that it's concurrent for J. Whether it doesn't have to be concurrent, it could be the judge had. Right. It could be. Right. And the 11th circuit under Julian, if a judge wanted to, he could make the. It's not mandatory. Right. It's not mandatory. Exactly. And judge, pain thought it was mandatory here. Right. I would agree with that. If it really not mandatory, and he thought it was mandatory, it would have to be sent back to rescinds and go in that camp. But if it's a conviction under C, it's your position. I'm studying this correctly. That it is a mandatory. That's right. And if I could step back, but if it's a conviction under J, and we adopt that other view, it would be permissive under. Correct

. Right. He had no discretion of its a J conviction. Right. If it's a C conviction, he had discretion, one of me had discretion. No. Well, one of me had discretion on whether to make a consecutive or not. That's all I'm trying to know. No, both of them. No, no, no, no. It's an open question as to J isn't it? Right. I mean, there's a non published opinion of this court, Hatton that said that it's, it's consecutive other circuits. We can't say the other circuits. The other circuits are and. I can run through them very. Whether it's consecutive or concurrent. Right. They disagree. Only the 11th circuit has said that it's concurrent for J. Whether it doesn't have to be concurrent, it could be the judge had. Right. It could be. Right. And the 11th circuit under Julian, if a judge wanted to, he could make the. It's not mandatory. Right. It's not mandatory. Exactly. And judge, pain thought it was mandatory here. Right. I would agree with that. If it really not mandatory, and he thought it was mandatory, it would have to be sent back to rescinds and go in that camp. But if it's a conviction under C, it's your position. I'm studying this correctly. That it is a mandatory. That's right. And if I could step back, but if it's a conviction under J, and we adopt that other view, it would be permissive under. Correct. Correct. And in your, in your contention is, it's a J conviction. Right. Government plants its feet on that. Right. Right. But I mean, I'm not objecting if this court wants to affirm everything saying this is just a scene. I mean, I'm sitting here. I think it's a J conviction. That's what I thought of coming in here. I mean, you might accommodate you people back saying it's done making a difference or will go down the road or. Something like that. I don't know. But you know, were you throwing licenses around whether they're consecutive or. Or in current. I mean, it's a. Maybe the judicial system. These look right. Let me ask you this question. This guy didn't a lot of bad stuff. Sure. But you all proved it. But it's actually that jury. But when you said you started using the same language, you said you, you think. That J is is mandatory consecutive. Right. But under C is not just not you think it isn't that the law. Oh, absolutely. Yeah, let's just make that clear. There's no question that question doesn't come up under C. Yeah. And that is C is a life sentence and C consecutive to what. The life sentences to the predicate offense, which here was the. Yeah, which itself has a mandatory life sentence. So, listen, so this case is a person who has two life sentences, right? Right. That are consecutive. Right

. Correct. And in your, in your contention is, it's a J conviction. Right. Government plants its feet on that. Right. Right. But I mean, I'm not objecting if this court wants to affirm everything saying this is just a scene. I mean, I'm sitting here. I think it's a J conviction. That's what I thought of coming in here. I mean, you might accommodate you people back saying it's done making a difference or will go down the road or. Something like that. I don't know. But you know, were you throwing licenses around whether they're consecutive or. Or in current. I mean, it's a. Maybe the judicial system. These look right. Let me ask you this question. This guy didn't a lot of bad stuff. Sure. But you all proved it. But it's actually that jury. But when you said you started using the same language, you said you, you think. That J is is mandatory consecutive. Right. But under C is not just not you think it isn't that the law. Oh, absolutely. Yeah, let's just make that clear. There's no question that question doesn't come up under C. Yeah. And that is C is a life sentence and C consecutive to what. The life sentences to the predicate offense, which here was the. Yeah, which itself has a mandatory life sentence. So, listen, so this case is a person who has two life sentences, right? Right. That are consecutive. Right. And as far as sentencing, the issue is whether or not we're going to give you a third. Is that correct? No, that's not right. So the question was the second one is mandatory. Right. So what you have is let me walk through the count. No, no, the second one is mandatory. Yeah. Account to is a life sentence. Right. See if there's a C conviction. That's a life sentence that's mandatory. And there's consecutive. But if it's a J conviction, it's not. No, well, and it's not if you were off to one of the views. Right. So it's up in the air. If it's a J conviction and you say it's a J conviction. Right. But now. And I just want to be clear, though. So this is where we stand today and you may be standard that because you think you have to. The defense attorneys say he has to have consecutive life sentence. And the government's going, no, he does not. He does not. He has to have one life sentence and maybe a concurrent life sentence. That's what we are in this case. No, that's not where we are. Yes. We are too. If you say it's a jconviction only, then it and the question of mandatory consecutive, and that to be decided by this court. Yes. So I mean, the interposition following the majority of the other circuits that you treat the jconviction as if we're seeking conviction for the mandatory concurrent term. But that's an open question in the circle. Yeah, right. They say that some of them say that the j as a sentencing factor is really not a separate offense. Those are all pre-apprendy and before a lot of this. That's not up in the air anymore

. And as far as sentencing, the issue is whether or not we're going to give you a third. Is that correct? No, that's not right. So the question was the second one is mandatory. Right. So what you have is let me walk through the count. No, no, the second one is mandatory. Yeah. Account to is a life sentence. Right. See if there's a C conviction. That's a life sentence that's mandatory. And there's consecutive. But if it's a J conviction, it's not. No, well, and it's not if you were off to one of the views. Right. So it's up in the air. If it's a J conviction and you say it's a J conviction. Right. But now. And I just want to be clear, though. So this is where we stand today and you may be standard that because you think you have to. The defense attorneys say he has to have consecutive life sentence. And the government's going, no, he does not. He does not. He has to have one life sentence and maybe a concurrent life sentence. That's what we are in this case. No, that's not where we are. Yes. We are too. If you say it's a jconviction only, then it and the question of mandatory consecutive, and that to be decided by this court. Yes. So I mean, the interposition following the majority of the other circuits that you treat the jconviction as if we're seeking conviction for the mandatory concurrent term. But that's an open question in the circle. Yeah, right. They say that some of them say that the j as a sentencing factor is really not a separate offense. Those are all pre-apprendy and before a lot of this. That's not up in the air anymore. Right. It's not a sentencing factor. It's a separate offense. Right. And the key point is, wait, wait, wait, wait. Have we decided this much? No. You have not. The worst up in the air and this. But that's the government's position. Oh, yeah. Right. And I would say, It's based on what? You're reading a law. It's not based on any circuit precedent. Not this circuit precedent, but the Supreme Court's opinion of Brian dealing with the machine gun enhancement in 2010, which said that that was a separate offense created an element, I think is certainly supportive of the trend in the cases that has treated. Do you think that it might be better to make this argument having front of the court in a case where that J issue was clearly presented? Seems odd to me to be personal that issue when the defense is standing up and saying, it is a conviction and we are, we have to get. They argue mandatory minimum issue. But if the judge is going to give us a life sentence, it has to be, or this sentence, whatever it is, has to be consecutive. They say that. Right. And to me, that you also are almost have flipped positions. Well, and let me try and restate what I hope has come across as my position. My position. I think I know your position. You can restate it. You think it's a J conviction or nothing. I think it's a J conviction because that's what the jury instruction said. No, you think it's a J conviction or nothing. And so if you lose on that, if we this court were to find it's not a conviction under J, there's no punishment under that count. That's your position. There weren't C instructions in this case. I said that's your position. Yes. And the other side says, we don't, it's, it's kind of a mess. We don't think it's a J. It is a C conviction and we therefore have to have, leaving this innocent question aside, that little mental amendment. Whatever the sentence is, it has to be consecutive. That, that's your, do I not understand your position? J has to be consecutive

. Right. It's not a sentencing factor. It's a separate offense. Right. And the key point is, wait, wait, wait, wait. Have we decided this much? No. You have not. The worst up in the air and this. But that's the government's position. Oh, yeah. Right. And I would say, It's based on what? You're reading a law. It's not based on any circuit precedent. Not this circuit precedent, but the Supreme Court's opinion of Brian dealing with the machine gun enhancement in 2010, which said that that was a separate offense created an element, I think is certainly supportive of the trend in the cases that has treated. Do you think that it might be better to make this argument having front of the court in a case where that J issue was clearly presented? Seems odd to me to be personal that issue when the defense is standing up and saying, it is a conviction and we are, we have to get. They argue mandatory minimum issue. But if the judge is going to give us a life sentence, it has to be, or this sentence, whatever it is, has to be consecutive. They say that. Right. And to me, that you also are almost have flipped positions. Well, and let me try and restate what I hope has come across as my position. My position. I think I know your position. You can restate it. You think it's a J conviction or nothing. I think it's a J conviction because that's what the jury instruction said. No, you think it's a J conviction or nothing. And so if you lose on that, if we this court were to find it's not a conviction under J, there's no punishment under that count. That's your position. There weren't C instructions in this case. I said that's your position. Yes. And the other side says, we don't, it's, it's kind of a mess. We don't think it's a J. It is a C conviction and we therefore have to have, leaving this innocent question aside, that little mental amendment. Whatever the sentence is, it has to be consecutive. That, that's your, do I not understand your position? J has to be consecutive. That's the four of you. I'm sorry. It's like it's almost like the, the fence is argued the case for you. They've been seated. And you are asking for them. Right. Well, it's a consecutive life sentence. But the concession on the C kills them on the J because you have to have a use to get a C conviction. We don't have to find that. We don't have to find that. Do we? Well, it's an absolute dead-sense guaranteed precedent. We have to find that. You don't argue in that. You want us to find it. Well, I think it's very clear that the elements of C require user carry. There wasn't possession and furtherance charged here. So, to have a C conviction, you must have a user carry. Their view is the problem with this jury verdict. And your position nets you what? Your position nets you what? What? The government wins on that argument. It nets you what in this case. A consecutive life sentence. Right. That we may decide may or may not be mandatory. Send it back for recennencing. That's what it means. If the government wins across the board, this case has to go back for recennencing. No, absolutely not. Oh, if we have to decide the question of if it's mandatory, this court has to decide it. You say it's mandatory. Right. You say it's a j-conviction and it's mandatory. But if we find it, if we conclude it's a j-conviction and it's permissive, then it has to go back. We have to decide. On the sentencing of the second vice-centred. I mean, it doesn't, unless you think it's harmless because, I mean, count two is a mandatory life sentence. So the court had no discretion on that. It's a consecutive is the question

. That's the four of you. I'm sorry. It's like it's almost like the, the fence is argued the case for you. They've been seated. And you are asking for them. Right. Well, it's a consecutive life sentence. But the concession on the C kills them on the J because you have to have a use to get a C conviction. We don't have to find that. We don't have to find that. Do we? Well, it's an absolute dead-sense guaranteed precedent. We have to find that. You don't argue in that. You want us to find it. Well, I think it's very clear that the elements of C require user carry. There wasn't possession and furtherance charged here. So, to have a C conviction, you must have a user carry. Their view is the problem with this jury verdict. And your position nets you what? Your position nets you what? What? The government wins on that argument. It nets you what in this case. A consecutive life sentence. Right. That we may decide may or may not be mandatory. Send it back for recennencing. That's what it means. If the government wins across the board, this case has to go back for recennencing. No, absolutely not. Oh, if we have to decide the question of if it's mandatory, this court has to decide it. You say it's mandatory. Right. You say it's a j-conviction and it's mandatory. But if we find it, if we conclude it's a j-conviction and it's permissive, then it has to go back. We have to decide. On the sentencing of the second vice-centred. I mean, it doesn't, unless you think it's harmless because, I mean, count two is a mandatory life sentence. So the court had no discretion on that. It's a consecutive is the question. Right. And so you could win your basic argument and have to go back for recennencing. You recognize that, don't you? I do. But I mean, I'm here on behalf of the United States. The United States has a view about what J requires. And the government's view nationwide on what J requires is that in line with six circuits that it is. But you represent the government, but your position is for the government that because you want to make the point on J, you want willing to accept their concession under C and go ahead and get what you know is a mandatory consecutive life sentence. Well, let me step back. I mean, I hope I have made clear repeatedly that if this court wants to just treat this as a C and be clear. You've done with this case and affirm everything that is perfectly fine with the government. I mean, that is perfectly fine. Okay, well, and I will. But I will suggest. But if I was legally wrong, we can't accept that. I will suggest this that it would save courts, your office and defense attorneys a lot of aggravation. If the attorney general notwithstanding, it doesn't get along with the house too good. Would go to the Congress and say, let's fix this statute so that it's easy to read. C or J or both. That should be a very simple fix. It would save a lot of time, a lot of money. And you might carry that back up the chain of command. Well, and I, you know, there are many. The arm career criminal act would be wonderful effects too. Next time you have breakfast with the attorney general, would you mention that too? Yeah, I mean, I, I, at one point I want to make very quickly that I think is important too, not to get lost in the big picture, which is the only reason to charge a J as a prosecutor, is if you're seeking a death sentence. Oh, you're seeking a death sentence there? No, we did not initially, but we have to. It was death eligible. There's a review process. And so it has to be charged in a way that permits the review process to play out. You have to keep your flexibility. Exactly. And so not to, but you have to charge there. So you got to go through with it when you go to the, went to the jury. Right. So if you have a death eligible offense that has to go through the review process, it's going to get charged as a J. But, but you knew at some point before the verdict, didn't you? You did that before the verdict, didn't you? Absolutely. Would you not stand up and ask the court that asked to amend that count? The other side would not have objected, would they? Well, they might have, because that, on their view, would put them in a worse position, because the max would still be the same. If they're standing here right now, they're not objecting to it

. Right. And so you could win your basic argument and have to go back for recennencing. You recognize that, don't you? I do. But I mean, I'm here on behalf of the United States. The United States has a view about what J requires. And the government's view nationwide on what J requires is that in line with six circuits that it is. But you represent the government, but your position is for the government that because you want to make the point on J, you want willing to accept their concession under C and go ahead and get what you know is a mandatory consecutive life sentence. Well, let me step back. I mean, I hope I have made clear repeatedly that if this court wants to just treat this as a C and be clear. You've done with this case and affirm everything that is perfectly fine with the government. I mean, that is perfectly fine. Okay, well, and I will. But I will suggest. But if I was legally wrong, we can't accept that. I will suggest this that it would save courts, your office and defense attorneys a lot of aggravation. If the attorney general notwithstanding, it doesn't get along with the house too good. Would go to the Congress and say, let's fix this statute so that it's easy to read. C or J or both. That should be a very simple fix. It would save a lot of time, a lot of money. And you might carry that back up the chain of command. Well, and I, you know, there are many. The arm career criminal act would be wonderful effects too. Next time you have breakfast with the attorney general, would you mention that too? Yeah, I mean, I, I, at one point I want to make very quickly that I think is important too, not to get lost in the big picture, which is the only reason to charge a J as a prosecutor, is if you're seeking a death sentence. Oh, you're seeking a death sentence there? No, we did not initially, but we have to. It was death eligible. There's a review process. And so it has to be charged in a way that permits the review process to play out. You have to keep your flexibility. Exactly. And so not to, but you have to charge there. So you got to go through with it when you go to the, went to the jury. Right. So if you have a death eligible offense that has to go through the review process, it's going to get charged as a J. But, but you knew at some point before the verdict, didn't you? You did that before the verdict, didn't you? Absolutely. Would you not stand up and ask the court that asked to amend that count? The other side would not have objected, would they? Well, they might have, because that, on their view, would put them in a worse position, because the max would still be the same. If they're standing here right now, they're not objecting to it. Sure. And we're happy to, you know, go at treating this as a C and confirm everything. Other than talking to the attorney general, they may ask you this. Why don't you just charge this properly in a case? If you think it's a separate offense, charge it as a separate offense, and ask a jury instructor, or then have the judge sentence under it, wouldn't that then absolutely square this issue up for the issue you care about? It would, wouldn't it? You could then come to the court and argue whether or not it's a separate offense, and you could argue whether or not the sentence there under must be consecutive. Wouldn't that, instead of this case, which, let me say, the favorable comment is just a mishmash, all crawls. They're errors, but the government didn't, didn't want to say anything. I'm talking about, they say errors. It's not as clear as it should be. The defense didn't say anything to the judge. The government didn't say anything to the judge. Then when the judge sees his own work, looks to me, he's not completely sure, even what it means. Why isn't it a better case to present it? You don't have to talk to the attorney general. Can't you just talk to the office and to charge somebody specifically on that count and then make in the argument to the judge about the consecutive sentence? Isn't that a simple way to frame it up? I mean, it would have been simpler, but... I'm going to end it a future. Sure. I mean, trials have mistakes like this that come up. I mean, they just do. This is one that really doesn't matter, because on any scenario, defense counsel stood up in opening and enclosing and said that... You mentioned my question, Mark. I think I asked you the first time for the first question that you got up here, why didn't you charge it in two pounds? Well, that's... My judge said not a great one. We did agree. That was a simpler one. It would have been... It would have been duplicitous, or whatever you want to call it. In my experience, it's not unusual to have a lesser included charge in one count. Not unusual. I mean, in the state courts, I used practice. You know, the charge from my promoter, you had three or four lesser included centers

. Sure. And we're happy to, you know, go at treating this as a C and confirm everything. Other than talking to the attorney general, they may ask you this. Why don't you just charge this properly in a case? If you think it's a separate offense, charge it as a separate offense, and ask a jury instructor, or then have the judge sentence under it, wouldn't that then absolutely square this issue up for the issue you care about? It would, wouldn't it? You could then come to the court and argue whether or not it's a separate offense, and you could argue whether or not the sentence there under must be consecutive. Wouldn't that, instead of this case, which, let me say, the favorable comment is just a mishmash, all crawls. They're errors, but the government didn't, didn't want to say anything. I'm talking about, they say errors. It's not as clear as it should be. The defense didn't say anything to the judge. The government didn't say anything to the judge. Then when the judge sees his own work, looks to me, he's not completely sure, even what it means. Why isn't it a better case to present it? You don't have to talk to the attorney general. Can't you just talk to the office and to charge somebody specifically on that count and then make in the argument to the judge about the consecutive sentence? Isn't that a simple way to frame it up? I mean, it would have been simpler, but... I'm going to end it a future. Sure. I mean, trials have mistakes like this that come up. I mean, they just do. This is one that really doesn't matter, because on any scenario, defense counsel stood up in opening and enclosing and said that... You mentioned my question, Mark. I think I asked you the first time for the first question that you got up here, why didn't you charge it in two pounds? Well, that's... My judge said not a great one. We did agree. That was a simpler one. It would have been... It would have been duplicitous, or whatever you want to call it. In my experience, it's not unusual to have a lesser included charge in one count. Not unusual. I mean, in the state courts, I used practice. You know, the charge from my promoter, you had three or four lesser included centers. Let me say this to you. I tried a lot of cases in district court, and I guarantee you, the lawyers know I would have gotten to the point with this jury charge, and this verdict on with these questions. Now, the mistakes happen in trial? I will just tell you. I won't respond to that. Never would have happened, because I would have counted on the defense lawyer or the government to understand the positions and explain them to me, or to raise the question, if you think something's unclear, or I would have counted myself, I mean, I don't know the answer, but I would have gone, this doesn't really make sense to me. Is that one or two? Or what are you trying to do? And so maybe it happens in cases you used to. I don't think that's the standard fare for this circuit. I don't think... When you say in the statute that violates 924C and 924J, somebody ought to properly maybe we're charging two offenses in one count, and then probably there's not the proper way to do it. Anyway, we're talking about hypotheticals. Those will be all got to play the cards we got. Pretty much know what we have. I appreciate Mr. Cook. You did a good job. It's usual. Thank you, Your Honor. We ask that you affirm. Mr. McGuire? Thank you, Your Honor. Just to go back to one of the early points of the court made that obviously it's up to this court to decide what the law is, in this case, and upon consulting with my co-counsel, we would withdraw the concession on the 924C and ask the court to review it for plain error, because in fact, Mr. Brand was convicted by the district court on J. And so it would be legally wrong for this court just in an effort to... If you don't make that decision into rebuttal in an oral argument, why is that? You argued it repeatedly in your papers, didn't you? At the district court level on the rules of play. You did argue to, didn't you argue? To us in your brief, you conceded it was 924C, wasn't that a concession in your brief? Your Honor, I think it may have been in there, but... I think it had been. Wasn't it? It was, I'll just say it was, because I looked at it for a walk in here. And so you argued through your opening that it was 924C, and now you argue that it's not? All I would say is I... Obviously the court has to decide what the law is

. Let me say this to you. I tried a lot of cases in district court, and I guarantee you, the lawyers know I would have gotten to the point with this jury charge, and this verdict on with these questions. Now, the mistakes happen in trial? I will just tell you. I won't respond to that. Never would have happened, because I would have counted on the defense lawyer or the government to understand the positions and explain them to me, or to raise the question, if you think something's unclear, or I would have counted myself, I mean, I don't know the answer, but I would have gone, this doesn't really make sense to me. Is that one or two? Or what are you trying to do? And so maybe it happens in cases you used to. I don't think that's the standard fare for this circuit. I don't think... When you say in the statute that violates 924C and 924J, somebody ought to properly maybe we're charging two offenses in one count, and then probably there's not the proper way to do it. Anyway, we're talking about hypotheticals. Those will be all got to play the cards we got. Pretty much know what we have. I appreciate Mr. Cook. You did a good job. It's usual. Thank you, Your Honor. We ask that you affirm. Mr. McGuire? Thank you, Your Honor. Just to go back to one of the early points of the court made that obviously it's up to this court to decide what the law is, in this case, and upon consulting with my co-counsel, we would withdraw the concession on the 924C and ask the court to review it for plain error, because in fact, Mr. Brand was convicted by the district court on J. And so it would be legally wrong for this court just in an effort to... If you don't make that decision into rebuttal in an oral argument, why is that? You argued it repeatedly in your papers, didn't you? At the district court level on the rules of play. You did argue to, didn't you argue? To us in your brief, you conceded it was 924C, wasn't that a concession in your brief? Your Honor, I think it may have been in there, but... I think it had been. Wasn't it? It was, I'll just say it was, because I looked at it for a walk in here. And so you argued through your opening that it was 924C, and now you argue that it's not? All I would say is I... Obviously the court has to decide what the law is. No, that, but we know that. But your view is you conceded that it... This was a conviction, but now you're saying not only do you not concede, but it was not a conviction. No, what I'm saying is that it should be reviewed for playing error by this court, based upon the questions of the court. No, that's the question I'm asking you. As you stand there right now, do you think this was a conviction under C, yes or no? I guess I would say no, because the court convicted him under 924J. That was the finding of the judge. And in fact, just to respond to an earlier question about what did the court think and why didn't you send the verdict back, I would just note that in the J.A. on 1298, what Judge Payne actually said, at the time he reviewed the verdict form, was that he didn't think that they had a finding based upon the verdict on guilt, on C, on 924C, or J, was the position of the district court at that point. Is your change of view here in the last two or three minutes, because if you adhere to the prior view of your opening argument in here? I would say that it's a 924C, then that has to lead to the conclusion that your client gets to, to life sentences, and they are consecutive. I would think that that would be the conclusion, Your Honor, yes, but I would also say that the district court motivated factor in your change of view. I think that that's part of the motivating factor, but I also think part of the motivating factor is clearly that this is a question of law that the court has to decide, and that even though it might be a more streamlined approach to say, well, look, let's just say it was convicted of C, and not real-dressed the J question, the problem is the district court convicted him on J. And so I don't think this court can simply ignore what the district court did. You knew that, you knew that, and all that until three minutes ago didn't you? Everything you were saying now, you knew before you just got up, you knew that, didn't you? Isn't that correct? What the judge did, what the charge was, but until three minutes ago, you said not only could it allow for a conviction on the seat, it absolutely did. It was a conviction under seat, isn't that correct? Yes. Is it something the government said that made you change your mind? But the court said that made you change your mind. Yes. The bench? Perhaps? Yes, yes, your honor. You're having an obligation to act in the best interest of your client. Yes. We have to do that. All stages of the procedure. That's the question. Thank you. Thank you very much. Let me just ask one question. So you say you think account three rises to fall, falls under J being a separate offense, and there being a conviction under J. Correct. Thank you. We appreciate it. We'll be a break. We'll go and come down and greet Council and go to one with the next case.

The honorable, the judges of the United States Court of Appeals for the Fourth Circuit. OAA, OAA, OAA. All persons having any manner of former business before the honorable, the United States Court of Appeals for the Fourth Circuit are admonished to draw a nine, give their attention for the court, it's now sitting. God save the United States and the honorable court. Be seated. When I welcome you all to the Fourth Circuit today, please to have you here. Two interesting cases. The first, the United States versus Jose Brand. Ms. McGuire. Good morning, Your Honors. I'm here because the District Court aired in denying our rule 29 motion on the 924J count, J count, count in count three of the indictment in this case. Our position is based upon the special verdict form that was provided that the jury was, in fact, properly found the facts and properly instructed and did not find an element of the 924J offense, which is the use of a firearm. In this instance, the government has conceded that 924C and 924J are, in fact, separate offenses. And because they are sub... I think I've conceded that, but that doesn't mean we have to agree with it. Your Honor, that is true. I guess you don't have to agree with them, but I think that you're bound by the record that was made at the District Court. And clearly at our arguments at the time of the 924... I mean, I'm sorry, the rule 29 motion, the government conceded that under DOJ policy, it is their position based upon the Julian case that 924C and 924J are in fact separate offenses. That doesn't matter. We decide what the law is and then we apply to the facts of the case. Because you could maybe cut the justice department to get up and say we can see that having crack cocaine isn't illegal. I know they would, but you get my point. What they can see doesn't matter. Okay, well, actually, it might. You stipulate to the facts, but you can't stipulate to the law. Okay. In the case, we may have trouble figuring it out. I think you may need your house figured it out. Do you think there was a conviction under C? Yes. In count three? In count three, we believe that there was a conviction under C. Why isn't it a duplicitous indictment? It charges two offenses. It does charge two offenses and in retrospect, it probably would have been better to separate them out into separate counts. But this all happened in a pre-aligned world and they were in the same count. And it is our position that through the special verdict form, the jury was properly instructed. It is a duplicitous indictment. What's that do to you and the government? That duplicity, I mean, charges multiple of two offenses in one indictment, right? Correct. In one count, two charges in one count. That's not necessarily defective. It is not if the jury was properly instructed. And it is our position that in this case, through the special verdict form, the jury was properly instructed on both J and C. Because the elements of each offense were presented in the special findings that were... Would C be a lesser included offensive, J? C is not a lesser included offensive, J. Because J requires a separate element, which is the use of the firearm. I'm sorry, it is the use of a firearm to cause the death of the person. And that is a separate element of J that is not present in 924C. And so therefore, it is our position that they are in fact separate offenses with separate elements and are not lesser included offenses. You argue to the district court that they were separate offenses? Yes, we argue to the district court that they were separate offenses. The argument that was a duplicitous indictment? No, I did not argue that it was a duplicitous indictment, but we did argue that they were separate offenses at the time of the Rule 29 motion. If what happened before that, when you were doing jury instructions? Right. When we were doing jury instructions, we believed that the special verdict form that was, in fact, drafted by the government in this case, adequately set forth the elements of both... Yes, you're right. We did have a jury... We did have jury instruction conference in charge and we all agreed to it and there was no objection... No objection to the instructions. And they were given as you all agreed to. Correct? Yes. And there was no objection after the thing came in. I mean, the judge even commented on from the bench, it looks like it's an erroneous verdict. Did you object to the verdict form? No, we did not object to the verdict form. So the judge gave and the verdict form sent to the jury, you did not object to that. That is correct. We believe that the jury was properly instructed on both 924C and 924J, because... And this is, I think, a point... I thought... The district court judge said in order to get a conviction here that you had to find all the elements that are in J, including death. And there wasn't anything set out separately that would cover C. Your honor, we'll all do respect it. I'm not sure that I think that that's what the record reflects. And I'd bring the court's attention to J, A, 1268, which is where, in fact, the court is instructing the jurors on count three. And the district court is very clear with them that if you find the defending guilty of count three, you then have to answer the next questions. And then he goes through with them... Wait a minute, wait a minute. Where does he say in instructing the jury before he gets to the special verdict about that they have to find death in order to find guilt? I don't think he says you have to find death in order to find guilt, because this was not a death penalty case. It was not authorized for death. So... But in order to get a conviction under J, you would have to, right? So in order to get a conviction under J, you have to show that there is a use of a fire arm. You don't have to show that that... The argument is if you meet those elements under J, then death is a potential sentence, but death is taken out of the table by the government. That is correct, Your Honor, thank you. It was in any term, reviewers, or life. That is correct. I don't mean death, individual subject to death, but there was a death, it caused a death of the victim. And that is what the statute says. Right, use of the fire arm. There is a person who, in the course of a violation of subsection C, this is subsection J. Right. In the course of a violation of subsection C, causes the death of a person through the use of a firearm. Shell, if it's murder, be punished by any term of yours or for life. That is correct. Is that your position as what you were convicted of, or you convicted of both offenses, or two offenses in there? No, we were, I believe that Mr. Brand was convicted of the commission of a 924C violation, which is the discharge, the aiding and abetting, the discharge of the fire arm. What difference does J make in this case? The difference that J makes in this case is that a 924C conviction under discharge has the mandatory minimum of 10 years, whereas the conviction under J is any number of years up to life. So in other words, is the mandatory minimum that bothers you? Well, what also bothers us, I can't figure this out. Because the way I looked at it under C, or under J in this case, and I'm not sure J is a separate, that's quite frankly. I bet it's not written in an unfulfilled opinion, this says it's not in this circuit. Will you wear that? No, you're right. Well, at any rate, in this case, and it looks to me like, C allows a term of years, or life, J allows a term of years for life. The court has all the facts in front of it, and it decides that under these facts, you don't care about the mandatory minimum. Don't they give a life sentence? Didn't the court give a life sentence? The court gave a life sentence on count three. So why would that matter then? Why would it matter if it's C or J? You just told me, if I understand you correctly, because I've been puzzled over this as I reviewed the case, you said you are concerned because J doesn't have a mandatory minimum, and C does. Now what you said? Yes, that's a distinction between the two statutes. That's a distinction, but why does it matter in this case? Because I'm just asking because the court looked at it, and the court didn't care anything about that mandatory minimum. They didn't send us near that mandatory minimum. They gave life. They gave the maximum. So in the real world, does it matter? It really does matter because there's a whole issue, which is our second issue in the brief about if you are convicted under J, does that require the consecutive sentence that 924C conviction carries? Does he require a consecutive? A conviction under 924C does require a consecutive sentence. What does J matter? We were to say this is conviction under C, in which you can see, what do we even need to talk about? Well, we need to talk about J because it's a legal question that needs to be decided. I believe as to whether J is a separate offense from C. That matter in this case, what would it matter in this case? Third circuits, that it didn't matter. Well, if your honor is talking about the Barrios case, our position is that the Barrios case is not correctly decided because what they did is what I think your honor may be suggesting is kind of taking a functional approach to this as opposed to a literal approach. In this case, in front of us right now, it would matter, perhaps, if death had been included and death had been given under the death sentence had been given under J. But it wasn't even a factor in this case. The way it makes me to again and just tell me why it matters. You say there is a conviction under C. Yes. A fair reading of the charge in the verdict form, you can see what you do. That sentence, isn't it correct? That sentence, under C alone, would be a term of years or life. Yes, with the mandatory minimum for discharge, of course. And it has to be consecutive. Correct. Correct. In this case, under J, if you look at that separately, it would be a term of years or life. Same thing, right? And we just don't know if it has to be consecutive or not. Right? You want to argue that to us. Correct. What does that matter? What does that even matter in this case? Why does that matter in this case? As to J. Well, I think it matters because the court convicted Mr. Brand of a of a count in which the jury acquitted him on in terms of. If we can look at that and agree with you, that it's kind of convoluted, but in when you just, just what you said, we could accept your argument, say this is a conviction under C. You could win. You want to argue against you, when did the case? I'm not trying to be flip, but it seems to me you can win under C. You know, I think it's a fair reading that that was a charge under C. And the element says you agree to in the verdict led leads to a conviction under C. I'm just saying that's the case. What does it matter? You said because C has a mandatory minimum. This judge didn't care about a mandatory minimum in sin of sin, did he? I can't speculate. I would I would concede he gave the life sentence. Right. I don't think he cares about 10 a mandatory mental. I got two life sentences. He'd because count to carried life as well, a mandatory life sentence. Are they consecutive? Well, that is the whole point right now. Yes, they are. They are consecutive now. They shouldn't be. Or you're saying the judge mistakenly believed he had to make them consecutive. That's correct. And so that was a sentencing error by the court because, but that's only if this court finds that the judge was correct in finding that Mr. Brand was convicted under J. So if this court back to the jury instructions on count three, which I'm looking at now at 1259 and 1260. And the district court, as far as I know, you tell me if I'm wrong, this is the only charge on count three. It tells the jury if you're going to convict the defendant, you have to find three elements. Committing the crime under count two, it tells them what that is. In relation to the commission of count two, he used character discharge to firearm and three that the firearm caused the death of Mr. Gonzalez. That seems to me to be all the elements of J. And that was what the conviction was rendered on count three under these instructions and only these instructions. Isn't that right? These are the instructions that the jury, the trial judge instructed the jury gave them these elements and they came back with a guilty verdict. Wouldn't that indicate that they found him guilty of the crime that was charged and those are the elements of J. Whether it's a separate crime or a sentencing enhancement. No, you're honor because both the 924C and the 924J were charged in count three, which is why there had to be special findings and count and J has an element of use that was not found by the jury. And I don't before there were any special findings, the jury said he's guilty of count three. He did, but then guilty, guilty of count three. And if they just stopped right there, if you disregard any findings, what's the result here? He's guilty of what? Well, I think that if he's, if he's just guilty of count three, you don't have the charge in count three. Whether, if it's, if it's two offenses, he's guilty of both of them. Well, I don't really think that that's a fair reading of the record because at 1268. Reading of the verdict, because as they said, he's guilty of count three. And you didn't object to the verdict, the judge offered to send it back. Or talked about sending it back and you and the prosecutor said, oh, we'll settle it. We'll, we'll, we'll fight about it from here on. I guess leave it to the court of appeals. We trust the court of appeals to get it taken down. And you'll, I mean, that might have settled the whole thing. I mean, judge, pain, senders, maybe a problem here. What's counsel want to do? You all didn't want to do anything. I mean, if we review, if there's an error in there and that verdict seems to me, it's reviewed for playing error. If we knew what we were looking, whatever we're looking for. Oh, as you all said, we don't want to go back and about to get straight down. Well, you're right. I think that if the court is to look at 1268, the judge pain makes it clear when he's instructing them on count three, that simply entering a guilty verdict or it is not enough if they find him guilty. And I see my time is just about to expire. So I'll make this very quick. But then he goes on and 1268 of the record to say that you have to check which ones plural you think are correct and be unanimous in that finding. The instructions. I thought about the verdict. They got the instructions. You didn't object to those either. So no objections preserved. That's all reviewed would be reviewed for playing error. If we're going to figure out something wrong with those, but on the verdict form, they plainly say straight up guilty of count three. Whatever's in there, right, but then they went on to address the special findings and they only found discharge. That he discharged the discharge. Plain English, you sure used it. Well, you're on with all due respect. I don't think that that's. Discharge the opponent trigger. It's that kind of a weapon. What did you have to pull the trigger? Yes, but, but I think that the case all makes clear and the Supreme Court has made clear that you, Sprandish and discharge are separate elements of 924 C. They have separate meanings and the Dean case while we certainly are not sitting here, advocating that this is. Let me add your time. Let me just ask you this just so I'm sure what was Mr. Brand's sentence to on count one. Count to honestly, you're on count one. I can't remember on count to it was life. Okay. All right. Thank you very much. Thank you. And my encounter was the was the re co murder. Yes, your honor. Thank you very much, Mr. Boyard. You say some time. Mr. Cook. Why didn't you all do a better indictment here? You all the United States of America. Government. Your honor. I don't think there's a problem with the indictment. There's the special. This is this if that's if these are separate offenses in J and C. That if there is a duplicity problem, it is certainly waived by not having made a motion on a rule 12. This courts opinion and king, I think, address that. What's up with the situation today as to whether it's separate offenses or not. It is the government's view is that separate offenses and there are a couple of reasons. So you meant that it's duplicitous because you can only you should know you should only charge one offense in each count. You should only charge one offense, but our view is that C is. So you can charge this in two counts. Well, I think that you can have a lesser included within a particular count. I don't think that that. We can have a lesser included in the count and judge a G.S. Question about that. You take a position and it's a lesser included defense. Yes. Which one's the lesser included? C is the lesser included. I think that that flows fairly naturally from the fact that the text of J says. A person who in the course of a violation of subsection C. Then if a slasher included, you can only be convicted of one or the other. Right. And here the verdict says guilty of count three. Right. And how do we know which one they're convicted of? Who do we read in favor of? Well, the jury instructions in this particular case only. Come back to jury structures. No objections. So that was which. How do we read the verdict? The verdict is a parody. We're talking about the jury that nobody objected to. Correct. The verdict form says we the jury find them guilty of count three. The jury was given instructions on count three that were solely J. And so you ended up with a conviction under J, which is what the judgment form. Judgment reflects in here. But if we if we were to decide this is a government's position. If we were to decide there's not a conviction under J, then count free fall. There's nothing on the count free. Is that correct? I think that's it's all is all J as a separate offense or no conviction under C. There were not jury instructions on C. I think that's a yes or no there. Yeah, I agree. But I mean, here's what I think is getting lots of your position. It's count three is a conviction of J only. It was convicted of one count. Baphic convicted move J they excluded C because it was a lesser included. That's right. But I really don't think that this is critical. Well, you have to figure it out. Right. It was happens that we knew what he was convicted of. And it would have helped a lot of y'all to go out and things right now. Well, not critical to know what a person can think of that. Why is that not critical? Well, I think it is clear that it's J, but the what the well clear to you may not be clear to us is the point. So it's not a question of whether or not it's clear. The question is you suggested it doesn't matter. What three doesn't matter. And I think perhaps it does. Well, let me go back to what I'm doing. Life sentence on it. I'm sorry. He's doing a life sentence. That's right. On whatever he was convicted of. That's right. Sam, you know, just as a matter of making the system look right. Oh, absolutely. I'm not disputing that. He ought to know the system. I don't know. But I was convicted of it. But under the substance under substance in this case. Why? Just tell me in a quick sentence why. Why it doesn't matter whether we see three is J or C or one or both. Why? Why doesn't that matter? Well, and here, let me explain that. What I take to be. Right. What would I take to be the critical issue in this case is the problem with count three is one that would be shared by C or J. Let me ask you this. Just talk to you there. The other side is set up and they said you'd conceded. It was two different offenses. Right. The other side now is standing up and conceding and agreeing that it's conviction under C. You disagree with their concession? No, and that's enormously helpful for what I think is the key point about why this J-conviction might be in question. If you accept their position at C, right, difference does it make in this case? It makes it not. And let me explain that again. It makes no difference. And I can explain that I think very simply. Can you explain why you're arguing it then if it didn't make any difference? Yes. I mean, and I think that, well, let me first explain why if you're in the 11th circuit, for example, as a prosecutor. I don't care about that. We're in the 4th circuit. And we have this case in front of us. You're a good lawyer. You've been in front of me before. Tell me, you heard my questions to the defense, the lawyer. What does it matter in this case? She said it matter because of mandatory minimum, but realistically, that didn't matter in this case. The judge didn't say, can I give him any less than mandatory minimum? No, I'll give him why. It didn't matter. What does it matter to you? Why are you arguing about J? Well, it does matter because he was convicted under J and... And if you accept her conviction that he was convicted under C, you accept that. You accept that concession. What do we have for this side, J? Well, you wouldn't have to, but let me... Make monos too. No, you don't... I'm content if you want to affirm saying this is a C. You satisfied with that? Yes, but let me get to what I think was... What I understood to be the core problem with this verdict form in the district court, and on appeal that I feel has gotten a bit lost. What the core problem was is you had a verdict form that had three options for a special finding. Carry, use, discharge. And the jury only checked the discharge box. Now, that then led to the argument that they didn't find, use, or carry. But of course, use or carry has to be found for both C and J. So, their position that there was a C conviction here is puzzling in the sense that their whole point was that they didn't check... By not checking use or carry, the jury meant we are saying that use or carry did not occur. And if that were true, you couldn't have a C conviction here because use or carry is required for C. So, the government's position in this case is... The defense says, by the way, don't you think the charge and the verdict form could have been clearer than it is? Oh, absolutely, I agree with that. So, now, in a case where it's not completely clear, just let me say this, but it's not articulated in the best fashion. And there's some question whether J is mandatory or not as far as many consecutive centers. And the defense says, we think you can read the jury instructions and the verdict form fairly to say a conviction under C. Right. And therefore, we talk about Senate and would lose like you would get like. The government stands up and goes, nope. Now, I've had... Look, I'm perfectly content for this court to avoid the issues of J by just saying this is a C conviction, C as a maximum of life, the sentence wouldn't change one bit. And that's the end of the case. We say for purposes of this case, it doesn't matter whether it's a C or a J. I agree. I mean, the only reason I resist that is that the core problem the defendant has identified is that the jury didn't check user carry. And if that were really a problem, that would be a problem with the C and it would be a problem with a J because you got to find user carry. But we don't have to accept their argument for their concession, do we? No, you don't. And we say a fair reading of the instructions as a whole lead to our determination there was a proper instruction under C and looking at the verdict, whatever it is, it clearly as has conceded in the government's willing to accept all sorts of things in that light is a conviction under C. Now, but if we say C or J, then all we face with the question under J of mandatory or permissive consecutive. Yes, yes, yes, you see the way I say just avoids that issue. That's that's true. And it might allow for you and an defense attorney in a case where everything else is not a mishmash, it's cleared straight up the elements of their verdict forms right. And then you would come back in front of us, you or somebody, you know, you're reprimanding the position and say this question on J is now fairly presented and it's important and necessary to this case. I know your position is J is important to the world. And so was the other side and it may well be, but you understand my distinction about important to the world and important to the case in front of it. Sure, I'm not trying to get extra issues decided. I just want my, you know, convictions. Impact is. If it's a J conviction on the Senate. I don't think that there is any on the two concurring seconded life sentence. I don't think there's. If the J conviction we sustain the sentences. Right. The judge didn't have any discretion. Right. He had no discretion of its a J conviction. Right. If it's a C conviction, he had discretion, one of me had discretion. No. Well, one of me had discretion on whether to make a consecutive or not. That's all I'm trying to know. No, both of them. No, no, no, no. It's an open question as to J isn't it? Right. I mean, there's a non published opinion of this court, Hatton that said that it's, it's consecutive other circuits. We can't say the other circuits. The other circuits are and. I can run through them very. Whether it's consecutive or concurrent. Right. They disagree. Only the 11th circuit has said that it's concurrent for J. Whether it doesn't have to be concurrent, it could be the judge had. Right. It could be. Right. And the 11th circuit under Julian, if a judge wanted to, he could make the. It's not mandatory. Right. It's not mandatory. Exactly. And judge, pain thought it was mandatory here. Right. I would agree with that. If it really not mandatory, and he thought it was mandatory, it would have to be sent back to rescinds and go in that camp. But if it's a conviction under C, it's your position. I'm studying this correctly. That it is a mandatory. That's right. And if I could step back, but if it's a conviction under J, and we adopt that other view, it would be permissive under. Correct. Correct. And in your, in your contention is, it's a J conviction. Right. Government plants its feet on that. Right. Right. But I mean, I'm not objecting if this court wants to affirm everything saying this is just a scene. I mean, I'm sitting here. I think it's a J conviction. That's what I thought of coming in here. I mean, you might accommodate you people back saying it's done making a difference or will go down the road or. Something like that. I don't know. But you know, were you throwing licenses around whether they're consecutive or. Or in current. I mean, it's a. Maybe the judicial system. These look right. Let me ask you this question. This guy didn't a lot of bad stuff. Sure. But you all proved it. But it's actually that jury. But when you said you started using the same language, you said you, you think. That J is is mandatory consecutive. Right. But under C is not just not you think it isn't that the law. Oh, absolutely. Yeah, let's just make that clear. There's no question that question doesn't come up under C. Yeah. And that is C is a life sentence and C consecutive to what. The life sentences to the predicate offense, which here was the. Yeah, which itself has a mandatory life sentence. So, listen, so this case is a person who has two life sentences, right? Right. That are consecutive. Right. And as far as sentencing, the issue is whether or not we're going to give you a third. Is that correct? No, that's not right. So the question was the second one is mandatory. Right. So what you have is let me walk through the count. No, no, the second one is mandatory. Yeah. Account to is a life sentence. Right. See if there's a C conviction. That's a life sentence that's mandatory. And there's consecutive. But if it's a J conviction, it's not. No, well, and it's not if you were off to one of the views. Right. So it's up in the air. If it's a J conviction and you say it's a J conviction. Right. But now. And I just want to be clear, though. So this is where we stand today and you may be standard that because you think you have to. The defense attorneys say he has to have consecutive life sentence. And the government's going, no, he does not. He does not. He has to have one life sentence and maybe a concurrent life sentence. That's what we are in this case. No, that's not where we are. Yes. We are too. If you say it's a jconviction only, then it and the question of mandatory consecutive, and that to be decided by this court. Yes. So I mean, the interposition following the majority of the other circuits that you treat the jconviction as if we're seeking conviction for the mandatory concurrent term. But that's an open question in the circle. Yeah, right. They say that some of them say that the j as a sentencing factor is really not a separate offense. Those are all pre-apprendy and before a lot of this. That's not up in the air anymore. Right. It's not a sentencing factor. It's a separate offense. Right. And the key point is, wait, wait, wait, wait. Have we decided this much? No. You have not. The worst up in the air and this. But that's the government's position. Oh, yeah. Right. And I would say, It's based on what? You're reading a law. It's not based on any circuit precedent. Not this circuit precedent, but the Supreme Court's opinion of Brian dealing with the machine gun enhancement in 2010, which said that that was a separate offense created an element, I think is certainly supportive of the trend in the cases that has treated. Do you think that it might be better to make this argument having front of the court in a case where that J issue was clearly presented? Seems odd to me to be personal that issue when the defense is standing up and saying, it is a conviction and we are, we have to get. They argue mandatory minimum issue. But if the judge is going to give us a life sentence, it has to be, or this sentence, whatever it is, has to be consecutive. They say that. Right. And to me, that you also are almost have flipped positions. Well, and let me try and restate what I hope has come across as my position. My position. I think I know your position. You can restate it. You think it's a J conviction or nothing. I think it's a J conviction because that's what the jury instruction said. No, you think it's a J conviction or nothing. And so if you lose on that, if we this court were to find it's not a conviction under J, there's no punishment under that count. That's your position. There weren't C instructions in this case. I said that's your position. Yes. And the other side says, we don't, it's, it's kind of a mess. We don't think it's a J. It is a C conviction and we therefore have to have, leaving this innocent question aside, that little mental amendment. Whatever the sentence is, it has to be consecutive. That, that's your, do I not understand your position? J has to be consecutive. That's the four of you. I'm sorry. It's like it's almost like the, the fence is argued the case for you. They've been seated. And you are asking for them. Right. Well, it's a consecutive life sentence. But the concession on the C kills them on the J because you have to have a use to get a C conviction. We don't have to find that. We don't have to find that. Do we? Well, it's an absolute dead-sense guaranteed precedent. We have to find that. You don't argue in that. You want us to find it. Well, I think it's very clear that the elements of C require user carry. There wasn't possession and furtherance charged here. So, to have a C conviction, you must have a user carry. Their view is the problem with this jury verdict. And your position nets you what? Your position nets you what? What? The government wins on that argument. It nets you what in this case. A consecutive life sentence. Right. That we may decide may or may not be mandatory. Send it back for recennencing. That's what it means. If the government wins across the board, this case has to go back for recennencing. No, absolutely not. Oh, if we have to decide the question of if it's mandatory, this court has to decide it. You say it's mandatory. Right. You say it's a j-conviction and it's mandatory. But if we find it, if we conclude it's a j-conviction and it's permissive, then it has to go back. We have to decide. On the sentencing of the second vice-centred. I mean, it doesn't, unless you think it's harmless because, I mean, count two is a mandatory life sentence. So the court had no discretion on that. It's a consecutive is the question. Right. And so you could win your basic argument and have to go back for recennencing. You recognize that, don't you? I do. But I mean, I'm here on behalf of the United States. The United States has a view about what J requires. And the government's view nationwide on what J requires is that in line with six circuits that it is. But you represent the government, but your position is for the government that because you want to make the point on J, you want willing to accept their concession under C and go ahead and get what you know is a mandatory consecutive life sentence. Well, let me step back. I mean, I hope I have made clear repeatedly that if this court wants to just treat this as a C and be clear. You've done with this case and affirm everything that is perfectly fine with the government. I mean, that is perfectly fine. Okay, well, and I will. But I will suggest. But if I was legally wrong, we can't accept that. I will suggest this that it would save courts, your office and defense attorneys a lot of aggravation. If the attorney general notwithstanding, it doesn't get along with the house too good. Would go to the Congress and say, let's fix this statute so that it's easy to read. C or J or both. That should be a very simple fix. It would save a lot of time, a lot of money. And you might carry that back up the chain of command. Well, and I, you know, there are many. The arm career criminal act would be wonderful effects too. Next time you have breakfast with the attorney general, would you mention that too? Yeah, I mean, I, I, at one point I want to make very quickly that I think is important too, not to get lost in the big picture, which is the only reason to charge a J as a prosecutor, is if you're seeking a death sentence. Oh, you're seeking a death sentence there? No, we did not initially, but we have to. It was death eligible. There's a review process. And so it has to be charged in a way that permits the review process to play out. You have to keep your flexibility. Exactly. And so not to, but you have to charge there. So you got to go through with it when you go to the, went to the jury. Right. So if you have a death eligible offense that has to go through the review process, it's going to get charged as a J. But, but you knew at some point before the verdict, didn't you? You did that before the verdict, didn't you? Absolutely. Would you not stand up and ask the court that asked to amend that count? The other side would not have objected, would they? Well, they might have, because that, on their view, would put them in a worse position, because the max would still be the same. If they're standing here right now, they're not objecting to it. Sure. And we're happy to, you know, go at treating this as a C and confirm everything. Other than talking to the attorney general, they may ask you this. Why don't you just charge this properly in a case? If you think it's a separate offense, charge it as a separate offense, and ask a jury instructor, or then have the judge sentence under it, wouldn't that then absolutely square this issue up for the issue you care about? It would, wouldn't it? You could then come to the court and argue whether or not it's a separate offense, and you could argue whether or not the sentence there under must be consecutive. Wouldn't that, instead of this case, which, let me say, the favorable comment is just a mishmash, all crawls. They're errors, but the government didn't, didn't want to say anything. I'm talking about, they say errors. It's not as clear as it should be. The defense didn't say anything to the judge. The government didn't say anything to the judge. Then when the judge sees his own work, looks to me, he's not completely sure, even what it means. Why isn't it a better case to present it? You don't have to talk to the attorney general. Can't you just talk to the office and to charge somebody specifically on that count and then make in the argument to the judge about the consecutive sentence? Isn't that a simple way to frame it up? I mean, it would have been simpler, but... I'm going to end it a future. Sure. I mean, trials have mistakes like this that come up. I mean, they just do. This is one that really doesn't matter, because on any scenario, defense counsel stood up in opening and enclosing and said that... You mentioned my question, Mark. I think I asked you the first time for the first question that you got up here, why didn't you charge it in two pounds? Well, that's... My judge said not a great one. We did agree. That was a simpler one. It would have been... It would have been duplicitous, or whatever you want to call it. In my experience, it's not unusual to have a lesser included charge in one count. Not unusual. I mean, in the state courts, I used practice. You know, the charge from my promoter, you had three or four lesser included centers. Let me say this to you. I tried a lot of cases in district court, and I guarantee you, the lawyers know I would have gotten to the point with this jury charge, and this verdict on with these questions. Now, the mistakes happen in trial? I will just tell you. I won't respond to that. Never would have happened, because I would have counted on the defense lawyer or the government to understand the positions and explain them to me, or to raise the question, if you think something's unclear, or I would have counted myself, I mean, I don't know the answer, but I would have gone, this doesn't really make sense to me. Is that one or two? Or what are you trying to do? And so maybe it happens in cases you used to. I don't think that's the standard fare for this circuit. I don't think... When you say in the statute that violates 924C and 924J, somebody ought to properly maybe we're charging two offenses in one count, and then probably there's not the proper way to do it. Anyway, we're talking about hypotheticals. Those will be all got to play the cards we got. Pretty much know what we have. I appreciate Mr. Cook. You did a good job. It's usual. Thank you, Your Honor. We ask that you affirm. Mr. McGuire? Thank you, Your Honor. Just to go back to one of the early points of the court made that obviously it's up to this court to decide what the law is, in this case, and upon consulting with my co-counsel, we would withdraw the concession on the 924C and ask the court to review it for plain error, because in fact, Mr. Brand was convicted by the district court on J. And so it would be legally wrong for this court just in an effort to... If you don't make that decision into rebuttal in an oral argument, why is that? You argued it repeatedly in your papers, didn't you? At the district court level on the rules of play. You did argue to, didn't you argue? To us in your brief, you conceded it was 924C, wasn't that a concession in your brief? Your Honor, I think it may have been in there, but... I think it had been. Wasn't it? It was, I'll just say it was, because I looked at it for a walk in here. And so you argued through your opening that it was 924C, and now you argue that it's not? All I would say is I... Obviously the court has to decide what the law is. No, that, but we know that. But your view is you conceded that it... This was a conviction, but now you're saying not only do you not concede, but it was not a conviction. No, what I'm saying is that it should be reviewed for playing error by this court, based upon the questions of the court. No, that's the question I'm asking you. As you stand there right now, do you think this was a conviction under C, yes or no? I guess I would say no, because the court convicted him under 924J. That was the finding of the judge. And in fact, just to respond to an earlier question about what did the court think and why didn't you send the verdict back, I would just note that in the J.A. on 1298, what Judge Payne actually said, at the time he reviewed the verdict form, was that he didn't think that they had a finding based upon the verdict on guilt, on C, on 924C, or J, was the position of the district court at that point. Is your change of view here in the last two or three minutes, because if you adhere to the prior view of your opening argument in here? I would say that it's a 924C, then that has to lead to the conclusion that your client gets to, to life sentences, and they are consecutive. I would think that that would be the conclusion, Your Honor, yes, but I would also say that the district court motivated factor in your change of view. I think that that's part of the motivating factor, but I also think part of the motivating factor is clearly that this is a question of law that the court has to decide, and that even though it might be a more streamlined approach to say, well, look, let's just say it was convicted of C, and not real-dressed the J question, the problem is the district court convicted him on J. And so I don't think this court can simply ignore what the district court did. You knew that, you knew that, and all that until three minutes ago didn't you? Everything you were saying now, you knew before you just got up, you knew that, didn't you? Isn't that correct? What the judge did, what the charge was, but until three minutes ago, you said not only could it allow for a conviction on the seat, it absolutely did. It was a conviction under seat, isn't that correct? Yes. Is it something the government said that made you change your mind? But the court said that made you change your mind. Yes. The bench? Perhaps? Yes, yes, your honor. You're having an obligation to act in the best interest of your client. Yes. We have to do that. All stages of the procedure. That's the question. Thank you. Thank you very much. Let me just ask one question. So you say you think account three rises to fall, falls under J being a separate offense, and there being a conviction under J. Correct. Thank you. We appreciate it. We'll be a break. We'll go and come down and greet Council and go to one with the next case