or the took place i'll start with the insufficiency of the evidence as to the interstate commerce element of the arson statute eight forty four in a criminal prosecution every element of an offense even in interstate commerce element must be proven individualized proof beyond a reasonable doubt so let me ask you why that isn't the case i mean there is a lot of individual ised proof here nobody's just saying because there was a fire it affected interstate commerce and jones after you know one doesn't do that but there's proof that there are actually three commercial units in this building two for residents that have actively says one that's for rent but  that's that's individual lies to prove and under russell when you've got to the point of proving that the building is being used in a commercial capacity you are not anymore the situation that jones treated you know with private residences with say intern state gas hookups or something that was the line the the court was drawing so i'm not clear what else you think needs to happen well i think that what the do you think russell calls for russell says congress means to use its full converse clause power and so we know we can simply affect interstate commerce and we know from you know i'm thinking actually in the any trust area of the cases like some of health against penn asserts or so on the you know even if you're one little ophthalmologist in los angeles you know you affect interstate commerce so i can't see why there's anything but you insubstantial argument that this that the being in the business of renting property whether for residence or for commercial activities doesn't satisfy that as well i don't think that russell was purporting to set forth anything about the sufficiency of the evidence in that case or a question of whether or not individualized proof was required what russell was addressing was a statutory argument that originally originated from this court which was a question of  jurisdiction an attempt to dismiss the indictment for lack of jurisdiction that the office was not within the scope of the statute so it was a question of statutory interpretation and there were the statements as you mentioned about congressional power to enact the statu which is very broad and we have held that any commercial building actively used for commercial business does meet the interstate commerce element and there are the holdings of this of this court that do say that but as i set forth in the brief i think that those decisions should be read narrowly or potentially narrowed under circuit will forty because they're in conflict with other decisions of this court which interpret interstate commerce elements of other federal criminal offenses such as united states versus peterson united states versus groves where there was an interstate commerce element the government did try to resort to an argument oh you can just find this is a matter of law because the supreme court has said drug dealings in interstate commerce those are different such as i think i'm going to redirect you and ask you to talk about vs testimony he's been before us personally and in more than one case and he does in this instance qualify what he's saying he's saying you know i can tell you about which tower this phone is able to make contact with i can't really tell you whether he's inside the apartment or down on the street or or whatever so why isn't that something that just goes to the weight of the evidence russians but when you look at what age in russia was testifying to we're not challenging here to testimony that the cell phone connected to cower x at a given time that is testimony that has been accepted that's not challenged the question is what does that mean what does it mean what can you take from the fact that the cell phone tower connected and even rashly doesn't have the time the the qualifications his methodology for extrapolating from that isn't reliable because he does do does he ever actually say though that because when i'm standing in this apartment my sprint phone is connecting with whatever the number was you know tower seventy five or whatever gets you know he doesn't say that last thing and so is that enough to qualify it in a way that that we can have confidence in and i guess the second question has is when you have the evidence that he leaves the car that never read drops him off he comes back to the car two hours later with the two full garbage bags you see the stuff in the garbage bags came from a damaged residence are there they find it in the residence to see that it was the stuff from ortiz's apartment why isn't this cell tower analysis cumulative and so even if it was a mistake to do admitted harmon's why i think that the way it was used was to place mr adamic in the apartment right and i am saying that the garbage bag evidence also places mr dami in hartman and i think that's certainly a permissible inference for purposes of of an analysis that the jury could have undertaken but garbage bags for a minute you know if never it drops him off he comes back with these garbage bags and then we have testimony that the stuff inside of the garbage bags came from ortiz's apartment i don't see how he gets it without going in  element which was beyond presence it's a tiny right the garbage bags don't convey any element of when allegedly mr diamond was in this apartment a two hour window don't you think that perhaps is permissible but would be a permissible inference from the evidence  testimony i think is really important miscible it's almost overwhelming i mean given the scenario that happened that night i mean that the thing is even if this testimony i don't think the cell phone testimony was too far but at any rate the evidence was overwhelming lacking the crucial evidence of the connection to the gasoline in this case and i think that that's where all of the evidence that the government some it would go towards location but i think the tenth circuit case in yoakum is is on point which is you know presence isn't just she sees the number of the pump go up but she doesn't think gas going into the field day and on top of that he washes his hands in january by cleaning the windshield i mean who does that well i think there was somebody wants to maybe get gas off their hands i think well i think there was also testimony from miss never at herself that he was clean the windows because they had their gun fogged up with his their hands well i think that he probably wouldn't have wanted to get his his gloves so wet in that circumstance if he was if it was washing the windshield but i think that the keep going that those activities the idea of just going to a gas station asking someone to go in and put the cash in those aren't the kinds of facts that would carry the weight of the entire inference that not only go to a gas station but he took the gas he put it unseen into an unseen container without getting any trace of it on him without any smell of it and that's enough to put on just the simple fact of going to gas station which is something obviously that millions of americans do every day every week i think it's too much for that one fact to bear if there were other was other incremental evidence perhaps but i think that's a crucial element here and i think that the evidence there's at least opportunity to get to get i mean obviously the government's case is built up of you know little facts here built on the next little  on the next little fact all circumstantial as judge william says but why a jury can't draw the inference from all of that and that's what your position has to be that it's actually impermissible for a jury to draw the inference that he in because i think that those are a lot of inference is put just on the fact of being at a gas station i think on its own that's not enough i think that's what this court would sort of regard as perhaps a suspicion or a speculative inference but this court has held that speculative inferences suspicions aren't enough i think you have cases d p s koski case the jones case where you also have a circumstance where you say some was in a place where they could have done something been involved in criminal activity but that alone is not going to be enough we're not going to just go on the suspicion of the possibility or the speculative inference you know ends piers koski it was the presence right before a murder in jones it was cooking crack cocaine i believe and no i mean that's a perfectly sound proposition of law whether it applies to this set of sacks is a different question why would certainly posit that it does and i think the other piece of prejudicial evidence that i'd like to address to this court is this purported incriminating statement that mr adama makes allegedly to officer garcia and i didn't mean to i didn't mean to hurt jimmy statement right and that's a statement that the government referred to multiple times in his closing arguments said these are the words of a man who's guilty why something very very serious to hide so it's obviously something that the government thought was important was you know very helpful to its case and i think as a result be very prejudicial now prior to that and that and that statement there was no motion to suppress right that's right your honor but this court has recognized that even when no submersion is suppressed was fall before the district court this court may consider a suppression argument where had a motion been presented to the district court it would have been an abuse of discretion for the court to deny it and i would posit that that's the case here because the government argues that when he says i don't want to talk about this anymore that it's an ambiguous statement well i would respond that this court in davis versus greer could but the jury heard evidence about the defendant's turbulent obsessive relationship with ortiz the facts stop you there because i was very unhappy with this video that was that went back to the jury's room it seemed to me utterly beside the point that there was no reason the government would have wanted them to hear ortiz saying she looks like she's on fire if it wasn't trying through the back door to get the idea of fire in there there was  and there were several videos that show the defendant's obsessive his to his motive and his obsessive relationship with the victim even if the judges for three analysis had been insufficient any error was harmless as your honor points out because the jury had already viewed the video in open court and it was pure speculation that the jury would view the video repeatedly to the exclusion of other evidence if at all so i mean you see your argument has saying wasn't enough to spoil the whole trial your honor well the the the video was probative of the defendant's state of mind and his relationship with miss ortiz the video was taken yet i matter is you had several videos that show his obsession so why did you even need video set fire in the first instance i understand it was an objective to correct your honor and we do agree that it was harmless in light of all the other up and so you're you're throwing the fire in is just is viking terror it just seems so needless when you have this other evidence and commenting she looks like she's on fire and for jobs of fire case maybe it's time to burn her up to you know it just leads to this speculation chain that's completely unnecessary well as your owners have pointed out in an arson case there is it's usually reliant on circumstantial evidence in the defendant's motive in this case was yet but i like her but you know the state of the thing is to say that you look like you're on fire in this video took place like not the day of something like wait before right it was about two weeks before he ran or it does and you can't really show any real connection between that video in the fire is just like this like excess it's like why did the government even need to introduce it you know because the case would be cleaner you already had all these other videos showing you i mean that's the point why invite error i mean yes i mean if you don't like extras this work why do this when that that's going to be the thing that will probably be the most controversial should you get a conviction right which is i believe why the government decided to fi up before trial and there was no objection there was no for three objection at all it came in clean with no objection at all you know i mean you can't count on that but anyway but let me ask you about agent brash because we've had a number of of the cell tower cases and that the risk here might mean the first thing i want to say is that even though he doesn't really tee up the rule seven o two objection the way he might ideally done it looks to me as though the trial judge does actually consider this objection during the trial he says things like in any event i'm over ruling your jabbered objection and then he discusses the merits and then at risk the jury is going to attribute too much specificity of these sell things they're all kinds of factors and we have agent rashly here talking about some software program we don't know what it is we don't know how it's liability is we phone is going to make a difference to how we'll fix up signals and which tower and there's just so much about this that seems to me not really to meet the requirements of daubert seven o two i prefer to think of it as seven o two jobber but in any event you know software we've never heard of you know telling the jury you know i'm standing here my phone is doing the same thing his phone did just strikes me again is as overreach which i think is part of the reason why the fact that this argument was waived it's not weight of that i'm telling you with the district judges saying i'm ruling on the daubert motion i'm you know this you can bring your gabbert thing i understand your motion to strike based on those of the district judges words that's not waiver but the dabur motion was raised for the first time in the middle of the cross examination but it doesn't matter if the judge reaches it then you had a chance to say what you needed to say they had a chance to  say he does object after the direct and right before cross and the judge comments you're a little late but then he goes on and addresses it on the merits so that's if he had said you're a little late i'm not going to think about it then were an abuse of discretion manager on trial territory and largely we defer to the district judges of things like that but that's not what he does he entertains it on the merits and he says he's overruling it  correct and i think that was based on a long line of line of cases including this court's most recent opinion which found that historical self and nothing can show with sufficient reliability that a phone was in a general area especially well populated one well that's right so general area so if the question had been was mr adama in rockford or was he in chicago this would have been great evidence because that level of specificity really can't be contested was e inside  ortiz's apartment or was he two blocks away at a convenience store not at all clear on this record that the cell tower could distinguish those two like here i believe that  you know what is it i mean there there's software in there software we don't have any idea of somebody so i have some software you know that doesn't tell me a thing have you ever looked at the app store in your i phone it's like a lot of software out there  you have this software was not a subject to cross examination here in software he testified to similar to what some standard phones maybe not judge powers but some can show you watched which signal is the strongest and he testified that he is not making a statement that a cell phone always connects to the strongest signal and he testified only and he testified that this is not g p s he said he's not making any assumptions connecting to the this tower he just outside the record on appeal the circumstances under which she should consider such information is limited in a different kind of opportunity to file a motion to suppress in the district court had the opportunity to cross examine the testifying officer charles about the statements but it shows naturally and as a result this course operating on a very limited record without sufficient information about this team and what do you think we can't even get to this comparison to what's said in davis against greer for example i don't want to talk about it any more because statement i don't want to talk about this anymore isn't sufficiently it's not on the record that's correct your honor it's not in the record at all and the identical situation was presented in a cox case and also in the case which is cited in the defendant's brief and under similar facts this court held that it would not reach the merits of hypothetical motion to suppress based on hypothetical testimony and material that the district court in the dinos case this court held that the defendants knew all they needed no they didn't crown the shifts press and because good cause did not exclude excuse the lapse that you could not consider their argument on appeal and your honor should do the same in this case that one question i know that it was three hours to the congress in the to the interview that he said i can't tell you why in response to a question and so i don't want to talk about this anymore how far is it is that just just a few brief points first with respect to the testimony from agent rashly while the government has talked about sort of agent rash he was being cautious i just want to focus that despite the language in which his conclusions were couched he actually purported to make very specific findings that aren't supported so for example and i would point to i think it's a one forty four in the record is a place where agent actually says the cell phone testimony is consistent with mr dami being in his in misc ortiz's apartment but it's inconsistent with him being at the parking spot it's three buildings down on the same apartment block that's the kind of specificity these purporting to testify despite the guise of i can't tell you what specific address it's at when you look at what he's really testifying to it's granular in a way that i don't think either this court's precedents or the precedents of other courts would support with respect to the preservation of the record issue and to judge williams question the question about what is my understanding and to the preservation of the record i and to the preservation of the record i would just say that this court standard for reviewing motions to suppress based on what would a district court have done had it been presented with a motion is only realized if you actually consider the full body of evidence that could have been presented this record in such a motion but you need to make proffers usually i mean you know there is there is a way to handle that kind of thing that was not followed here i know it's not your fault but  here that's right your honor but i think that to truly analyze what would a district court have done you should look at a limited scope of evidence i don't think that looking at the extra record evidence in this case would fully expand this to some kind of mini havey is proceeding