good morning made think of the court my name is in that smock and i represent the wrong i'm going to try to preserve two minutes for rebuttal robbery has typically been viewed as an offense that is reserved to the states  and to preserve the federal state distinction hobbs act requires proof that a person affected commerce by committing the robbery that's involved what we had in this case was a purely local robbery of a local person there was no evidence in this case that anyone or anything tangible moved across state lines no court no decision from any court whether it's this quarter any other court has ever extended federal jurisdiction to conduct that as attenuated from interstate commerce as we saw in this case the district court in this case repeatedly expressed misgivings about the evidence and the government's theory in this case and also repeatedly expressed a desire to have some guidance from this commerce we have an interest we have a we have a use of the internet here and i understand i understand about the about the craigslist of the locality i wonder if you if you've identified any case from any court that have said well even though there was use of the internet here that insufficient for interstate commerce i'm not aware of any case that says any case of anything else well the reason i say hobbs act is because it's important to recognize the language of the hobbs act statute and recognize the basis upon suggest that mere use of the internet is not sufficient to affect commerce that's not sufficient proof no but i think the reason for that is that hobbs act is is unique because it requires proof of an effect on interstate commerce the cases and statutes of the government relied upon in support of its theory that a use of the means of interstate commerce is sufficient are our statutes that actually discuss the sufficient jurisdictional basis being conduct that in interstate commerce acting in interstate commerce use of a means of interstate commerce and that's where there is an important distinction to make which is that the hobbs act requires an effect on interstate commerce so there's a real distinction between actually using the internet and affecting commerce between states and what i want to make clear is that this court actually gave guidance to the district court with the new model jury instruction that it has issued we would not be here today had the court instructed the jury consistent with this new model jury instruction no rational juror could have found mr long guilty based on the evidence that was presented at trial if they had applied the standard set forth in this court's model jury instruction i want to focus on a couple things on that point the model jury instruction makes clear that conduct affects interstate commerce if it in any way involves interferes with changes or alters the movement or transportation or flow of goods merchandise money or other property in commerce between or among the states so what what's that speaking to is actual movement of goods across state lines commerce moving of merchandise money the existence of a of a signal that crossed state lines that was exclusively related to conduct within california commerce it has but but that's where i think this court's instruction has to be taken into account which is use of a means of interstate commerce use of the channels of interstate commerce is not the same as an effect on interstate commerce so for example there are statutes like a sex trafficking statute or other statutes that speak to use of a means of interstate commerce if you use the internet that establishes federal jurisdiction that's entirely different than the  requires an effect and if we look at this court's model during structuring which which appropriately interprets the existing law on this issue the conduct has to actually affect movement of goods across state lines movement of money merchandise property it's not speaking to signals that relate to conduct it's entirely within this state the only case that the government sites in support of this theory is from the seventh circuit the horn case that case first is wrongly decided but even if it were correctly decided you have to point to the differences between those two cases in that case judge posner spoke to e bay as e bay his relationship with interstate asking for a bright line rule saying that use of the internet or use of craig's list is never sufficient to a stab stiction under the hobbs act it's a fact dependent inquiry and it depends on what the defendant did so for example if mr along had posted an ad on craigslist in another state if mr long had posted an ad for something extremely valuable for a very low price such that it was likely that someone from another state might come to get it we might be in a different position but it's a fact opinion inquiry and what we had in this case was an advertisement for a car with two hundred twenty four thousand miles on it with salvage title posted on a site that was specifically for the san francisco bay area narrowed down to the east bay narrowed down to a particular city and we saw what the natural result of that advertise minutes we saw that a person who lived ten minutes away is the person who responded to that advertisement the government presented no evidence that could could result in a finding that there was a natural result of the local ad creating an effect on interstate commerce there was no evidence that anyone from another state ever looked at this advertisement there was no evidence that anyone on an out state site could have seen this advertisement when they were looking on their out of state site there was no evidence that anyone looked at it from another state or even evidence with respect to the how often people look at out of state craigslist site so we had no basis for a jury to make a finding based on this court's instruction that there was an effect on interstate commerce the court the second part of this court's effect on interstate commerce instruction is applicable here as well when we speak of potential effects the way that the government interpreted the word potential in the way that the district court allowed them to proceed was to essentially say potential effect means you take this robbery and imagine hypothetical scenarios that it might have been carried out had there been a different victim or had it been carried out in an entirely different way that's a different way of interpreting potential than this court has allowed the attentional it speaks to the natural result of the offense would be to cause an effect on interstate commerce in any agree to any degree so it's speaking to the offense itself it's not speaking to circumstances that might have arisen so when you think about a robbery there are any number of circumstances that take place during a robbery the government's position seem to be you take one of those circumstances the fact that craigslist was involved and then you spin that out using hypothetical after hypothetical if there had been another victim if the victim had been from another state there was a possibility that interstate commerce could have been affected how would you how would you go about proving that would you have to call witnesses who i i would  interstate commerce as a natural consequence of the crime well so her focusing on the facts of this case i think the government to prove some effect on interstate commerce might presented evidence with respect to from craigslist saying when news about these robberies comes about it diminishes the number of times that people would come from another state to purchase something  on craigslist but the problem they had is that there really was no such evidence and the facts of this case made it absolutely clear that this was an entirely interest a transaction carried out by a person who was seeking a buyer a victim very nearby and that's what he got there was absolutely no way of finding that the natural result of this offense would result in an effect on interstate commerce i'd like to turn to speaking about the constructive amendment of the indictment which i think is an important point this court reviews the district court's decision to novo and star roan and its progeny have said that when the grand jury  told that one particular type of commerce has been charged with been burdened by a defendant's conduct they can't then go in front of the trial jury and allege and new complex of facts a new a new theory of commerce a trial here it's also important important to remember that this jurisdictional fact is an element of the offense it's the third element of the offense so what we know from the government is that they went into the grand jury with a specific theory of jurisdiction to establish that third element the government said the defendant used craigslist craigslist is in is something that could look could possibly have gotten someone to come from out of state that created this potential effect on interstate commerce that's why there is jurisdiction and that's how we establish this third element of the offense they then came in at the second trial and presented an entirely new complex of facts which is that after the posting of the craigslist ad after the robbery itself mr long goes to an a t m machine and does balance inquiries and tries to withdraw money on one occasion and as part of that  separate act by mr long what happened was that there were signals that were sent to servers that happened to be in other states as part of this effort to withdraw money from a california a t m from a california bank and that those signals amounted to interstate commerce and the creation of those signals somehow amounted to an effect on interstate commerce you suggesting the government is required in the indictment to list the the precise ways in which commerce was was  of effect on commerce at trial that's true but case law says that when they make a specific allegation in the indictment it changes things and here the government did make that specific allegation that craig's list was the jurisdictional hook  acknowledged that before the district court they acknowledged before the district court that they didn't present this alternative complex of facts and that's the problem understeer own that thrown involved a very similar scenario where there is one complex facts presented to the grand jury and an entirely separate conflicts of facts and theory presented at trial and the fact that this the court did not read to the jury a specific unanimity instruction shows that require reversal the last thing i just want to quickly talk to talk about is acceptance of responsibility this was a clear legal error by the court the guidelines allow a defendant to go to trial do not take away acceptance points for a person to go to trial is their only reason for going to trial is challenging the application of a statute to his or her conduct that's precisely what mr long did in this case mr long acknowledged guilt from the beginning with respect to the actual factual elements that the opening statement involved an admission that mr long committed this robbery mr long himself admitted guilt during his probation interview the probation department recommended that  this two level reduction be applied the court made it in correct legal conclusion that a basis for denying these acceptance points was the evidentiary objections that counsel made during trial only with respect to that one challenged element nothing in the guidelines says that one defense counsel is required to simply sit on his or her hands during a trial and ignore the federal rules of evidence with respect to the one factual element that they're disputing which they're legitimately disputing under the guidelines that's what that's what defense counsel did in this case many of these objections were sustained by the court as correct interpretations of the federal rules of evidence and what taken one step further these were all tactical decisions by me defense counsel mr long had nothing to do with these decisions about objecting to evidence mr long did everything in his power to accept responsibility for these factual elements and he should not face an extra year in good morning may please the court my name is phil cops and second i represent the united states again if i may with the question about the commerce clause mr spock describe this is a purely local offense and we think that obscures the facts here the defendant can use the internet to lure his victim all robberies in a sense are local they occur at one place in the country that happened here but i take issue with a local version of craigslist but i'll get to that in a second even accepting that because the internet is an instrumentality and a channel of commerce and the fundamental legal problem with the defendants argument is that it is a restrictive yeah i think perhaps that would be sufficient yes your honor i think so i think so tell me tell me something that would be sufficient use using the internet using the internet that would not be sufficient so like i say i think it would have to be something that's relatively i suppose mr wong had mug somebody right and then and then jumped in jumped in the car and realized there was a detour and uses google maps to plot is  i think if it if it's all one of and all the robbery yes i think that's probably sufficient mere use of the internet will be sufficient i think that's right we don't have to ask whether pinged off any satellites you don't have to ask if they're with the servers were located in california if they were located in arizona or not brasco or someplace else not about all that might be relevant but it would be it would be icing on the cake well the lower the server location i think remains relevant here we had testimony that craigslist has servers in arizona i don't know whether the any of the signals actually went to arizona do we do the crisis representative testify that it's a redundant server system so the moment the defendant put the post on the for sale website it's it's in california at a server and it's in arizona server so we know for sure whether in this day and age a jury can just sort of use their common sense what they know about the internet without that testimony and still rationally can decide that the internet goes over state i think the court would say that this jury could and did rationally conclude that there was an effect on interstate commerce here because how are you questioning i'm sorry because in effect on to give the federal government jurisdiction to prosecute crime to lure your victim posting on the commerce website again i don't think it has to be as broad as the internet full stop maybe that's right i just haven't spent a lot of time thinking about it i focus on these pulled it out of a box at a grocery store the census will chronicle is shipped to other two other states and put into stands that would be sufficient i think it might be i think newspapers are not a channel or instrument ty of commerce you'd have to have a different theory on that one but assuming the chronicle has a sufficient interstate circulation it might be yeah i think it could be but again i think here  this all goes back to the fundamental mistake in the defense argument which is this narrow meaning of what commerce means so the supreme court looked at this just last term and taylor and they said the  be read as as far as congress can go and any other reading argument i want to say i'm glad you brought up to learn i'm sorry to give it a chance to mr smart about this but it seems like the court in taylor is saying that because congress regulates marijuana that any robbery involving marijuana is it hard to act robbery what congress regulates the internet could regulate the internet is not much does i don't think there's any dispute about that so if the robbery involves the internet doesn't the logic of taylor suggest  that involves the internet affects interstate commerce in the same way that marijuana sales affect interstate commerce i think that's absolutely right marijuana sales could be a purely in trust state activity you could grow the marijuana in california you could sell it in california a person could smoke it in california and never leave california right that's exactly right but if you rob the money and it's a hobby and there was an old second circuit case needham that taylor cites in that case the second circuit had accepted a narrower conception of hobbs actor stiction and they thought that the hobbs act by using the word effect on commerce and putting it as an element  the offense had somehow heightened the burden for the government the super supreme court overturned that case and similarly there's peterson that's an old seventh circuit case similar logic in that case  court focuses on as your honor was saying the idea that the product was purely in trust state in that case the seventh circuit said well the hobbs act is only category three of the lopez morrison framework it's only affects on commerce it's not channels and instrumentalities defense makes the same argument here seventh circuit accepted it in peterson supreme court over rules it in taylor and they say the only way to escape that congress has really delineated and had hearings on the lack of it at least for federal purposes medicinal purposes we don't have a similar involvement by congress in regulating the internet so i'm not sure that that analogy gets you very far well i do think there are certainly federal regulation of the internet to the extent the of course not just as it's not a crime to have a prescription drug with a prescription but there can be related to the difference between this and taylor this case and taylor is  this case doesn't involve a robbery of the internet taylor was a robbery of the of the thing that was being regulated here the robbery was of a person selling a car to use the internet this was on the internet that was getting robbed right so isn't that a significant distinction that would that would move this case outside of holiness i don't think it moves outside it's a valid distinction but i think the reasoning of taylor still controls and so we see that for example in child pornography cases the jurisdictional hawk is that the internet is used to facilitate the crime same thing here the internet is considered part of an international or the national and international market in illegal drugs child pornography is is illegal there's a there's an up market concern that by creating demand for child pornography that we're encouraging  pornographers inside the united states outside the united states to to pull in young kids to these schemes that just as these are orders of magnitude away from what mr long  i just disagree on these facts your honor i think again using a site like craigslist and your honor i said earlier the idea that it's a local site that that's just not accurate what he did here this really has no relationship to something like the flyer at the or the billboard at the gym or the flyer like the elephant and on e bay might have been a little different case that's horn seven circuits case correct but evasive little bit different because that is a bit of a national market and there may be there may be cars that are deliberately advertised on e bay that wouldn't be put locally on craigslist because you're looking for a much larger market an antique or a specialty car of some kind that it was you know cost effective to i ask you sir the same question let me put it in different terms for the government but what's the what's the best case that you got from any jurisdiction suggesting that any use of the internet affects interstate commerce satisfies the jurisdictional hook for any internet i don't think i do i don't know of any court that says the universe for this is unbounded once you use the internet that involves congress as commerce power and congress may exercise it to the to the nth degree no i know of no court that's put in quite those terms because i think that would never be necessary or not or no one comes close horn comes close horn we certainly think is directly on  internet the fact is that society is very interconnected now and this goes to a second point that was argued to the jury about the way this affects interstate commerce is that there really was a very real had received an inquiry from an out of state buyers that we do that somebody was looking at at the you know the east bay craigslist that would be that would be sufficient because somebody else had access to the even though his victim here was was from the east bay think absolutely your honor and there's no way to distinguish that sort of scenario from a case like taylor or similar cases of this court that talk about potential effects of the crime in taylor they were trying to rob marijuana dealers they didn't actually get the marijuana or any cash it was a bust but that didn't affect the analysis similarly here this easily had the potential to get him out of state by or our victim who the government didn't select for the the trial but it just so happened you ask the victim and he says oh sure i sold a motorcycle to someone in reno when i posted cars on craigslist i get inquiries from texas nevada new york florida is a very real possibility that would you put a post on it website that has fifty billion page views per month sixty million users in the u s per month that you may get i think what you're hearing from the government is that their interpretation of effect on interstate commerce with respect to use of the internet has no limits that limit actually does exist it exists in the law it exists in this court on model jury instruction which is that if the use of the internet does not involve movement or transportations or a good goods or money between or among states then there is no jurisdiction the fact that i don't tailor cover this  that taylor involved the drug trade there have been findings by by this court the supreme court that the drug trade necessarily involves movement of goods and money across state lines we don't have an equivalent finding with respect to the internet and we have to keep this at this inquiry anchored to the wording of the statute so we have lots of cases that say the internet internet is an instrumentality channel of interstate commerce in lots of cases that hold that when the internet is used it satisfies the commerce element of that particular statute like sex trafficking that's right sharpen our view statutes it's utter so and i don't think you can seriously contend that congress can't regulate so the government clearly regulates the internet just like it regulates drugs and all of that would be relevant and might be decisive if the statute were worded as the statute in such cliff is worded the the statute in sutcliffe as with the other statutes that the government relies on speak to conduct that in a word affecting interstate commerce including the transfer of a document by electronic means or the other statute involved in such a cliff which in transmitting in interstate or foreign commerce that's not the language of the hobbs act the hardback speaks to obstructing interstate commerce not to conduct in interstate commerce and therein lies the distinction and so all of the cases and statutes that the government relies for its theory about use of the means of interstate commerce and use of the internet are not decisive in this case in fact they go towards the we're told the congress was legislating to the maximum extent its power under the commerce clause in the hobbs act right so so irrespective of those distinctions that you just drew if congress is legislating to its maximum power and taylor says if you regulate the area it's applies it seems like you're boxed in well we're not because you can't ignore the language of the statute and you can ignore the ninth circuit's own model jury instruction on this and if you isolate your inquiry to that you see that there is no or potential record or potential effect yes not potential use of the means of interstate commerce its potential effect on interstate commerce and movement of goods and money across state lines and in the absence of that the government must lose all right thank