of the defendant's twenty minutes time and i'd like to reserve three minutes for rebuttal if i may ok and mr salesman do you want to i think you should probably respond and then have rebuttal and then we'll go to the next five minutes that makes the interstate commerce issues i'd like to turn first to what i submit may be the most striking aspect of this record and that's witness to rhonda gaskins testimony that she feared for her life because and i quote for a fact i know the g box is a killer now g box is a nickname by which the jury had come to know my client gloria shavers and i think it's worth pausing over the substance of this extraordinary testimony this was a witness stating that she feared the defendant would kill her for testifying when a jury hears something like that there needs to be a mistrial and both this court and the supreme court have made clear that there are instances when a witness can say something so outrageous that no curative instruction can suffice to cure the prejudice although isn't this the the type of case where we really should let the district court assess the impact compared to the the evidence that's the other evidence that's presented the fact that it was one remark not repeated not referred to the fact that there was an instruction given you know we don't know the credibility of this witness perhaps the district court should be in a better position to say you know she seemed like she was acting out the whole time she was testifying and this is just another i mean just to court and say that but isn't this the type of case where we should let the district court decide and really be careful about abuse of discretion well the most substantive comment that the district court made about what happened was that the prejudice was significant and the district court lamented that ms gaskin didn't simply say she heard he killed someone the district court paused to say she testified i know he murdered someone so that's that's most of what we have the district court saying no i think in the typical case some deference to the district court's rulings on mistrial motions is certainly do but unfortunately district courts can get it wrong sure courts may have an interest in moving a trial along we do have a three factor test that takes account of the matters your honor has identified so while it was immediately and then one read before the case went to the jury there was a generic period of instruction when the case went to the jury about not considering arguments or stricken testimony and one very specific instruction about this on instruction found out seventy five minutes after the testimony was given the jury is actually been sent into recess and have lunch in the meantime so that that's a problem for her yes that helps me a great the odd is that help well those seventy five minutes that the jury was sitting there without having been admonished at all let this really become in granite in their minds that's a metaphor used in the united states the hacking case it just sat there and if you look very closely at the record you'll notice that during that seventy five minutes they went to lunch they disperse they'd been instructed don't talk about the case don't talk to anyone doesn't that really hurt your argument i don't i don't think so i think that's where dominant significance of the delay is that it left that testimony sink into their heads and become harder to remove it is your real problem our standard of review and this issue i mean it's busa discretion standard when you're asking us to find a no reasonable person could have come to the same conclusion that the district court did very heavy burden under these facts under this applicable law i think it is a heavy burden that these facts satisfy your honor i mean if you look at the united states v gray case the court in that on bank decision was also aware of the deference that owed the district court there was in that case the prosecutor had stated to the witness you killed your wife right it wasn't even testimony from the witness it was a statement by the prosecutor well was also state and by the prosecutor to find wasn't that part of it that the prosecution went far afield here prosecution only asked what do you what do you mean and seems to me if they said what do you mean it could have bolstered her credibility because she said you know it's dangerous for me to be testifying here in my neighborhood people don't snitch and that you know i could see here the prosecutor didn't really do something on was just reciting the district court chastisement of the prosecutor for having asked an open ended question you know find the judge chastising the prosecutor very severely and the record and telling her shortly before the jurors come back  this case is tossed if something like this happens again you've got these statements by the district court that show it's the third the shorts the star it's so disturbing it tells the jurors you can't even talk about this well i don't question a zealot effort of the district judge to cure the matter but unfortunately it was a task beyond his ability to achieve the very notion don't talk about this is somewhat telling it calls to mind an idiom the court used several years ago in united states me leave where the court said we won't blindly assume that joris turn a blind eye to the elephant in the deliberations room i can't emphasize enough how unique i feel this statement is i think the statement is iams more prejudicial than the state running gray or carney it witness testifying she fears for her life because the defendant is going to kill her no matter how conscientious a juror may be that is going to ring in their ears inevitably well it's interesting i think that when we think of prejudice we don't think of harmful we think of prejudice me the emotion outweighs the evidence here you had evidence of guilt and that's one of the one of the tests but would you address the witness tampering because there it occurred to me you know if we look at the at the statement and we look at the witness tampering i'm one i think that's a close case in terms of the the actual  guilt and so the fact that maybe that maybe that evidence waive in terms of witness tampering i don't know but isn't one of the tests that the weight of the evidence in the the amount of evidence and don't we have a situation here that really is that close from a few people on a dining room table could ever have an effect on interstate commerce that's an element of the charge that was brought here the defendants were charged not with robbery but with interfering with interstate commerce by robbery when it comes to that element was we cement not existed at the very least it was weak and as your honor says that we were instructed that a minimal or potential what was the instruction under the hobbs that it was along the lines of the united states the urban standard of minimal your honor we don't think there was proof you have a minimal effect on interstate commerce i mean it's a unusual case the government talked about a robbery of a few people at a dining room table robbers took some money took some cell phones ordered everyone down into the basement and then started rummaging around up stairs but it's clear that the reason the robbers went to that house was because it was there was and they thought there'd be a lot of money there so they were the targeting a business and haven't we in our case law talked about the fact that targeted interstate commerce that has the potential effect of that and be sufficient i think that after they sent everyone downstairs so that people would be out of their way so they could rummage around the first floor for drugs now the evidence is fairly i'm going on this ranch here tonight we're going to speak easy was downstairs that's right ok so you're honor in fact at sentencing the prosecutor stated that apparently this house was robbed some supposition that there were drugs there well that maybe there was defendants rummaged through refrigerators an expert testified that p c p is stored in refrigerators and there is also testimony that the defendants kept yelling out where's the wet and there was expert testimony that wet is a slang term for p p now so if the government had tried the case on the premise that this was a robbery affecting interstate commerce because it was directed at a drug dealing operation judgment i think we'd have a much different situation they did not prove a robbery directed at the speakeasy robbery wasn't in the speakeasy which was downstairs it was an aisle of the speakeasy none of the speakeasies proces were taken to paraphrase the government's argument that i think they make mr mccann speak for himself they argue that the interstate commerce that was affected by the robbery was some liquor bottles that may have been taken in the course of the robbery and the fact that the woman who ran the speakeasy testified that she discontinued the operation the speakeasy after this robbery now or either one of those substantially enough interstate commerce to be affected i don't think they're always surprised if i say you know i don't believe they are for several reasons first of all in this case because the robbery was of individuals in a home and not a robbery of the speakeasy for the reasons i've just stated we don't think it's a fact it's appropriate to even be looking at any theoretical of facts there may have been on the alcohol sales that's attenuated if this robbery had taken place outside a bar in a chestnut hill and the bar got a bad rez reputation because of it and went out of business that would not be a hobbs act robbery not not a street mugging in front of a would be enough if the robbery was just the mugging of a pedestrian in front of the bar even if it ended up having an effect on the bar and i think that analogy is the same here it doesn't matter what happened to jeanette catch more cells sales of alcohol because this robbery was not directed at her speakeasy it was not a robbery of her business or you're seeing it in the fact well you know i would also say that or at least i would say that no rational trier of fact could find beyond a reasonable doubt either of the things you mention either that her business went down or that bottles were stolen i don't think those things could be found on a reasonable doubt but more fundamentally i think that there are elements of analysis because the robbery was not of the anybody to which those things relate  you know another analogy might be a robbery referred to just point looking at walker we were if we preferred cases where it's target and it clearly was evidence here that business was targeted they said because it had a lot of money and it was sweet all the money is in the basement they clearly were targeting the  revenues speaking yes i mean there is a letter you're on i think it's the last sentence of what you said that's a step too far there is this the testimony there about how they thought there would be money in the house i'm willing to grant you that that would support an inference they thought there was some kind of enterprise going on in the house but all of the other evidence is that the enterprise they thought was generating the money was drug dealing they were not concerned about the speakeasy you won't find any statement of any different you or hurt you because they were targeting well it  that this is really far removed from interesting and yet we have language in us behavior with any interference with or effect upon whether slight subtle or even potential we have that language in our case and we have to and bank this because you have a slight subtler potential maybe that's the deal here maybe it should be i don't think you have to on bank it i mean involves a theft of currency which is of course the medium of interstate commerce right so theoretically every robbery affects interstate commerce and some kind of line has to be drawn and traditionally the line has been green robberies of individuals and robberies of businesses circuit draw a line in us versus wang in two thousand and didn't our walker or we recent decision and walker sort of say that the third circuit was not going to and i still think it's a good case for us i don't think walker completely disavowed way walker makes a point of saying the robbery where looking at is different from and i'm quoting the home invasion robberies of the type at issue and weighing or here so we have a home slash business and here it's a way of looking at that says that's that's that's what we can argue about all that i'm going to argue it wasn't a robbery at the business because it didn't enter the business the robbers only interest in the basement was a place to go stole away the people so they could search through elsewhere in the house they were not robbery robbing the speakeasy since it wasn't directed at the speakeasy it's different from cases like walker you're not only did the court expressly distinguish home invasion robberies but it said what really made walker easy is that it was a robbery of a drug dealer on the street selling drugs that individual was engaged in interstate commerce at the time of the robbery are you going to address witness tampering am going to address it your honor you want me to move on i don't know how much that matters in terms of the overall scheme of things the sentencing or whatever but well in the end about a year or two our client sentence and i did make it not as good as a that and i respectfully disagree with my colleague that with regard to the briefs because we do have the fouler case that was decided by the supreme court after the briefing was concluded in this case i want to make sure to to leave some time to address that let me first if i may go through the couple issues that mr donohue referred to that i'd myself do not find challenging the first involves this unfortunate statement that miss gaskin made during her testimony in saying that she knows for a fact that the mr shavers is a killer this wasn't you know i know for a fact that he's committed crimes this was he's done something so egregious that nobody is going to want to on the street oh absolutely and judge joyner very experienced district judge assess the situation point that the jurors let that sink in for a while well they did they did go to lunch and they did just first there obviously was no discussion could could they have thought about it individually of course but then they come back and they get this very clear instruction my problem with the defense argument here and i think members of this court have have probably heard this rant from me before it as i'm critical of arguments that take a dim view of our jurors and treat jurors as anything other what they are which is very intelligent qualified adult citizens of by the same token if the judge does not say anything immediately and i'll never forget my first my first trial counsel tried to pull something and the minute it was sad i said to that jury you are not to pay any attention that has no bearing whatsoever and you know so but if the judge doesn't do that right away  people who are loyal jurors who are told them phatic lead by a judge whether it's seventy five minutes later or even a day later ignore it don't consider it you may not discuss it but people follow judge's instructions that's a holding of this court on the supreme court and so sure it would have been preferable to say the media play but i don't think it's watered down in any way and that we can assume that the jurors did not follow this instruction the other thing to consider here is that again looking at the president of this court it's one state isolated it's never repeated it's a case in which there's an overwhelming amount of evidence with regard to mr shavers but more importantly we think already those angles means well in carney for example the i believe it was the court held th evidence that case was not over with and there you had a much more specific allegation and i'm this what i'm getting in terms of miss gaskins credibility you had a specific allegation that that out defendant try to murder me and my children so you have a presumption here is that this jury of gullible people is sitting there they hear one witness say i know he's a killer and at that moment they lose all rationality they go back in the jury room and they're going to get convict him of anything whether he is innocent or not of course jury doesn't even convict mr she as of everything he actually is acquitted of counts in addition to the counts of conviction but with regard to ms gaston her she isn't peached from one end of the courtroom to the other throughout this trial and in fact if you look at the closing arguments page eight hundred eighty seven of the appendix is mr shavers closing his counsel says this is a witness who lied admitted she lied lied on several occasions and the next page says with regard to miss gaskin and others who are these witnesses they are criminals they are drug dealers they are drug users they lie on the witness stand that's who they are so we're supposed to believe that this witness who did have the vulnerabilities that were identified there that this witness says one thing way that that was that there was an official proceeding as we have construed official proceeding that should have been a contemplation could have been in the connotation at that time and i just i have great difficulty with the jury's finding on that evidence was underwhelming if not not exist let me address that in this this as i said it's a little complex if you didn't ultimately to go through this step by step the most interesting thing at the outset is that this was an argue to the jury here this is basically a sufficiency question and here we have defense counsel saying there was insufficient evidence for this jury to find that it was a federal proceeding they didn't even have the temerity to argue that to the jury at trial which i think is relevant they actually did argue federal jurisdiction with regard to the hobbs act which is a separate issue but here they did not think it was worthy enough to go to the twelve people and then they come to this court and say there was no evidence whatsoever that point number one but point number two i important to walk through the lawyers who want to start here that doesn't stop them from coming in are you absolutely not i'm just saying it reflects the strength of the argument but of course that's true but in working through the law here the government has to show that there was an official proceeding that there was an effort to obstruct and that there has to be a particular official proceeding that's what arthur andersen says but none of this has anything to do with the defendant's state of mind because the statute explicitly says first of all that the official proceeding doesn't have to be pending at the time of the obstruction and second of all says that there is no requirement with regard to intent with regard to the federal nature of the proceeding so in other words what the government has to show is  this obstruction was directed at a particular federal proceeding but does not have to show that the defendant was aware of that new it contemplated the predicted that it would anyone in the federal proceeding it was again and again what was the federal proceeding you have disagree on the evidence that was submitted was that when the certainly be investigation began with the investigation of the postal robbery but the media play was relevant to the investigation of this matter as well the search was conducted guest house or guest house or pronounced that within about ten days or nine days after the trial period it was during that search that they found evidence in her house from these people of this robbery of the speakeasy robbery  at the same time those of us that's right and they didn't learn about the cell phones the much later but at the same time these same federal investigators then requested the phone calls in the prison and immediately heard all sorts of evidence of the speakeasy robbery and this is where fowler becomes important what the supreme court empowered resolved is what does the link me today given that there does have to be again any anticipation or knowledge by the defendant what the government does have to show that there's a link to an official proceeding even if there's a proceeding isn't in existence and what fowler says is a reasonable likelihood they've been different standards from different courts over the years and the and the supreme court says you need to show that there was a reasonable likelihood that there would be a federal proceeding and i would and that's where this case lies i would submit that given that these federal investigators working this case given what the jury knew a jury reasonably could find a reasonable likel again we're dealing with a sufficiency of the evidence and here was there sufficient evidence that a reasonable jury could rely on an interesting way this jury was instructed to make a finding a well beyond this reasonable likely that's standard and that's probably why none of the defendants have argued any infirmity in the jury instructions the jury instructions simply told the jury and it's at page twenty twenty four there has to be a federal proceeding and at the end the proceeding has to be that took place and if this robbery is covered by the hobbs act what would not be covered what kind of robbery would not be covered well there are plenty of robberies that are not covered by the house only to stick up robbery on the street one person walks up to another points a gun at him and takes his money is that if the person is stuck up on the street was a drug dealer that would be covered under walker correct it seems to me that here what makes this the hobbs that part not difficult i said that the witness tampering i knowledge is is we need to address based on totally different standards but first of all you have the robbery here of a business the question is against sufficiency of the evidence is there evidence in the record on which a reasonable jury could rely and what we have first and foremost you see is this was not i disagree your honor how was a business the first of all that they even question whether it was a business they describe this is some kind of social dinner party so we started evidence from which they could say if i may be for jeanette catch more as the owner of the of the speakeasy she testifies page eleven fifty six of the record this catch more was there a time in the past you operated a business at your house yes i did what kind of business if you operate well i used to sell beer alcoholic beverages but she wasn't doing that when the rap because she was upstairs asleep well let me get to that your honor when they come in the house the evidence is from those women who heard the planning for this that this fellow khan who was in on the planning said this place has a lot of money the money is in the basement let's go rob it again a jury can infer from that this is a robbery targeting the business the speakeasy and finally  importantly the missed catch more going back to jeanette that's one page eleven sixty seven she says that when she was brought downstairs a whopper took her to the basement and kept asking her where's the money now if that's not evidence that effect on interstate commerce i mean you can say you know there's an individual walking down the street and you think he's a big money manager and he has diamonds on his person and therefore you want to rob him and he'll stop his diamond business but you stop him and all he has is money and turns out you know he's maybe the wrong person or maybe it's the right person but it doesn't have any effect on interstate commerce the fact that they anyone across the country your honor but what i can say is that this court has very clearly said and i reasonable americans can debate whether this is an appropriate division of federal and state authority but what this court has said is that this is the maximum exercise of congress's power under congress that any robbery or extortion that has even a potential effect on interstate commerce is sufficient to bring it within the scope of the h that's correct the but again in terms of the effect on the business this is the reason this isn't a difficult case i submit is that this is a robbery in the premises of the business and then miss kotch more is asked this is page eleven seventy five did you continue to operate this business after this occurred she said no the question was at all and she said no i got scared then you know that was enough now again this year maybe two parties could argue this evidence but this is evidence that a reasonable jury can rely on the fact that it's closed your honor that which we don't think is totally clear on the record but even if the bar is closed in the last customers are finishing their car game before heading out the door that doesn't mean that this doesn't have an effect on there's the commerce if you just take away the illegal nature of the business if you have a restaurant that has stopped serving and the last patrons are there and the armed gunman come through the door and terrorize everyone to the point that the business closes obviously that's for what if the records show that they went there because they know there was a big cargo go on and there was a card game going on every so many nights and that was one of the nights would that be sufficient probably not it's a harder question why would the card game well if the card game were one of the things that the speakeasy offered in or how much ice just marking this place was now have a big guard game every wednesday night and they knew there was a focus on how does a this how is that differ from a speakeasy because in a speakeasy as i said his apartments catch more is going to a supplier she's buying beer and wine and cognac and other products sold in interstate commerce she's bringing them back to  bar she's selling them at a markup at two dollars a beer four dollars a shot she has a bar but she is making what if miss catch more risk cutting the proceeds of the card game the house got you know ten dollars a hand well then every if we're starting to turn the house into a casino and yeah i guess the point i'm getting then yes then i would say that at some point we do get to a business that affects interstate commerce because this would be an instance of a business that certainly when aggregated does affect interstate co games well i don't know it's the card games because we're not we don't want to get into court yeah well we didn't present this case that way i mean sure i wanted to the first is the congress have the power under the commerce clause to regulate the operation of a private home that is being us you are saying what i was there next well that was that was the nexus we showed just like in hayward and you know it's the exact same thing if you look at the testimony of the customers that's sort of interesting they were going the way that defense counsel wanted them to go in saying that this was come kind inside the bars the close to two o'clock it's known on the streets is a speakeasy you know it's a business same thing with brian anderson and page eight seventy one it was set up like a bar eight ninety nine he says when i got there i saw it was a speakeasy this is a known business establishment in the city of philadelphia the only thing different about it from the bar down the street is it's illegal and it's serving a market of people who want to continue to to enjoy alcoholic beverages after two in the morning when the bars close commerce is a close question does that impact on the gas can stay busy and there's the gas can the statement have an impact on that question as to the weight of the evidence of that particular fa theoretically it could but again i don't think the gascon statement being a single isolated statement really even the it's a concern to us about the evidence but with regard to the hobbs act robbery on or with respect i don't believe it's a close question when you have a trying to answer as well your honor i don't believe that that element is a close question ok under the sufficiency standard or even under what's before the jury when they hear the owner of the business say i ran a business and i profited from the best something i haven't mentioned she says she took some of the proceeds to pay for her children's education associates telling a profit and i shut down the business as a result of this this isn't one of those tough questions i fully acknowledge i respect what judge pollak wrote in the walker case that we take very seriously about the need for federal prosecutors to be careful in what cases they prosecute given the expanse of the hobbs act we recognize all of them what i respectfully suggest is this isn't a tough one this is a business and the only difference it don't have a license if you didn't have that statement from her that she shut down if she continued to operate it what you're saying well we suggested other things with my limited time i want to focus on that but certainly the jury can infer that all those dollar bills dozens of them that were on the robbers when they were caught within minutes were proceeds of the business and that would satisfy hayward the two bottles that some moved from the basement to the first floor when they were seen by ricky catch more that could satisfy hayward but this is a much stronger case than hayward and that's why i prefer to focus on the fact that the business closed all right thank you  i'd just like to highlight first of all that mr allison are agreed that no proceeds were stolen from the bar during this robbery and i think that's a very important fact in judgment out that's that's at the heart of how we're dealing with that language in all of our cases urban and the many important authorities before it the fact is that the robbery was of a business so we know that when there's a robbery of a business a de minimus impact is enough this court has never to my knowledge in a presidential decision up held a hub back prosecution where the robbery was over an individual i mean the plumbers may have been individual contractors and urban but they were robbed in their capacity as a sole proprietor of a plumbing business i don't think there's a precedent from this court holding that and the cases we've cited in our brief from wang to parag to madison and all show robberies of individuals where those individuals have a much closer connection to commerce and do alberto vas brian anderson on the other people who say they had money stolen from them so you're saying if someone is in let's say someone is in a store a shopper and someone comes in and robs them and then the store owner decides to curtail their business hours that's really what happened here and individuals were robbed and then the store owner who was not robbed basically decides to curtail business that that's like another leap if you will right this is essentially a robbery of an individual what about the fact that the business was clearly the target or you but your honor i disagree with you i don't think the evidence can even be found to show that the speakeasy was the target i think the evidence is beyond dispute that if there was an enterprise that was a target it was a p c p dealing operation that was separate and apart from the speakeasy now i don't like therefore you know the government has gone from one theory to another several weeks before trial they filed a second superseding indictment to try to prosecute on the theory that the defendants attempted to rob controlled substances and therefore it was a hobbs act robbery judge joyner precluded evidence on that theory due to a discovery violations about theory did not go to the jury it would presumably be open to the prosecution on remand we never heard from the prosecution the district court that that the defendant stole bottles this is idea this is one point where somebody seen holding bottles that was never argued to the jury it's something that's come up on appeal now that the government has realized their evidence was not strong at all what was testified to that there was testimony simply that at one point from ricky couch more he saw one of the men holding two bottles have been targeted even if we find it wasn't the target if it affected interstate commerce is it done enough it because it's robbery what's being penalized here is the robbery right well that shows that your honor every robbery in some abstract sense affects interstate well that's what some of our cases and get very close to say well i think ultimate weight and walk are included which is very thoughtful decision and the court's been very sensitive that there has to be some kind of line it is pretty far out there but there is a line and of course during trial and i know that this court has discussed at great length the hobbs act issue i want to dovetail that issue with the four if we're being for three evidence that was admitted at the time of trial on the poster robert on the line this entire investigation was this notion that somehow a group of individuals at ebony just this house were also involved in this postal robbery not one shred of shred of evidence connected my client nor the co defendants to this post of robbery but there was a tremendous amount of innuendo including the direct evidence that in fact appeal in response to my brief that in fact well the seven demonstrated a federal interest in the underlying investigation and that's where i'm concerned we have a case that is by razor edge on the hobbs act issue presented just simply presented with this backdrop this underlying notion that there is a postal robbery looming out there somehow connecting our clients to this when there's not one shred of evidence of that in fact even if that had been the motivation for the underlying federal investigation that evidence certainly should never have been admitted  trial there was a motion in limine to exclude that evidence the government sought introduce it the government in its in its in its relief and by the way if i could reserve just a moment of time to respond to the government on this but the government argues in its brief that well it's not really for a for  because we never really connected to any of the named defendants or really what uncharged crimes problem is it doesn't escape the four three analysis here the first three analysis is significant because you've got an underlying case of allegedly a postal robbery not fact same scenario neither witness identified in the post since any confrontation the photo array the defendant that case however there is a in court identification following this out of court on prejudicial december it was bifurcated for scheduling reasons until june we know on that june break that that motion is not going to go forward with that yet the government did not cancel the bring down they had brought in mr anderson from out of state he's brought to the f t c he's been tra certain without a reasonable without any doubt in his mind that the birthmark on my client's face with the identifying feature despite a generalized description until cross examination when i stablish that in fact it was in the photograph that he was shown in the photo array and in fact it was a tattoo placed on my client's cheek use after the fact two years after the fact so when he makes that identification it is not a reliable identification he says it looks like number one the prime mr loose and it also looks like number four so we have right there  were briefly very briefly on with regard to the postal robbery when an interesting situation where we sort of can't win we we have to show under fowler as i said that there was a reasonable likelihood of an official proceeding that was federal whether the defendants were aware of it or not and here we're told we can't tell anything to the jury about why the federal investigators were even there that's the reason the evidence was admitted it was carefully admitted and monitored by the district court so they would not be prejudicial there was never any suggestion made to the the jury that these three gentlemen were involved in the postal robbery instead ms brady was the main investigator who testified that she was conducting investigation the purser operate it letter to do a search this house they found cell phones federal investigators got involved leading virtually immediately to an investigation that touched on the speakeasy robbery as well so if we have written i that evidence there's really no way to prove the official proceeding element of the witness tampering charge there was no prejudice of defendants because they weren't accused of anything involving the postal robbery in any evidence with regard to the identification of louis it's very important here and i think art i heard of that in the questions to break down with the legal standards are here with the legal standard there's a distinction as i know the your honour's know well between due process which is the government's obligation to not do anything unfair to the defendant and that the propriety sufficiency of the evidence the persuasiveness of the evidence putting an identification evidence by itself is not a due process issue it's something that can readily be argued to a jury what mr lewis is complaint is here with regard to mr anderson is how could he identify me it was three and a half years later i was standing there with shavers and white that's something you readily can argue to the jury and it's a proper issue for the jury the question though and remand you have biggers all these other cases is is that the government engage in any violation of the defendant's constitutional  process rights that happens where the government engineers and i'm totally suggestive identification procedure there was no identification procedure this was inadvertent they were they happened to be with a large group of inmates in the same place brief that wasn't the focus of my argument here but certainly we think percy's of the bar were taken and more importantly a reasonable jury can infer from something like sixty or seventy one dollar bills that were found on the two men immediately after the escape from the robbery proceeds worker there and he died and he didn't testify wasn't available testify at the trial with dell is the guy selling it so what did he was his money there's no test of evidence regarding that but given that there is evidence that sales w i'm not saying it's conclusive but i'm saying it's evidence of jury could rely on they could rely bill seem like what you have in a card except for the fact that we didn't put in evidence regarding the prices of these drugs two dollars for a beer or three on appellate review this court is required to accept the reasonable inferences that favor the verdict here you have it you could have an inference that darryl has the proceeds of the bar you could also have an inference or that there were proceeds downstairs you could also have a difference in all these one dollar bills were held by the customers the jury is entitle to make the decision now again we don't rest on that because and this is the last thing i'd like to say we have to keep in mind also this court's repeated holding that the effect on commerce can be potential now the reason for that hold and the reason it's right is that the statute itself prohibits attempt and in fact attempt was charged in this indictment not just the substantive robbery so an attempt to affect interstate commerce this is why it also doesn't matter if commerce i agree if this quote seclusion is that only the individuals were targeted and robbed we probably lose this case but there is evidence in the record that this was an ongoing regular business that was targeted that they took this case went down to the salesman emphasizes that jeanette catch more may have been wrong about x or y or z but she did state absolutely that she took the proceeds to bed and nobody else stated anything else to would submit and this is laid out in our reply brief that it's actually not directly a pleasurable there is a subjective element here and that's that the defendant had to have in contemplation an official proceeding thank basis very well are you take it under advisement