had advance knowledge of the firearms the trial evidence establishes that four men agreed to go hit a lick and wayne where loaded the firearms into the blazer without trying to hide what he was doing for mr steiner and could have been in the back storage compartment of the blazer don so let me let me just say this it seems to me that if the crime of violence at issue was armed robbery you might have an argument this is armed carjacking though right well that's correct your honor but this the guns were out before they ever decided to take the car that's correct your honor but roseman clarified that advance knowledge is not strictly a temporal  inquiry advance knowledge is knowledge that enables a defendant to make the relevant legal choice therefore when i accomplish knows nothing of a gun until it appears on the scene he may at that late late point have no realistic opportunity to  the perpetrators huddled up and discussed what to do you know one of the st time in the record that we can say for sure mr steiner was aware of the firearms was when his co defendants jumped out and started shooting at the victims so at that point mr steiner assuming this is the st time he sees the firearms he's nineteen years old he has no prior criminal history and suddenly he's in a situation where when where and torrie wilson are holding these teenagers a gunpoint and firing their weapons whenever they feel they are not one hundred percent in control of the cell so am i wrong though that at that point doesn't he also approach the girls threaten them get in the car back out of the ditch but you know i don't think there's any evidence that he was the one threatening him i mean we're not disputing that he assisted in the completion of this carjacking and that he went over and asked for the girls keys and then he helped get the the he and paul out of the ditch and then drove it away however the girl's boyfriends having fled rosamond the supreme court explicitly rejected the government's argument that advanced knowledge exists whenever the accomplice having learned of the firearm continues any act of assisting the drug for his action or in this circumstance the crime of violence so  why don't we meet that standard you say guns are out and then we agree i think that steiner still approaches the car whether or not he's the one issuing the threats or not he approaches the car gets the keys back to the thing out of  the ditch and at that point the carjacking has been accomplished right so why didn't he do like three at least three discrete things after the guns came out again i'm going to take us right back to roseman the court explain that running away or confronting the was not necessarily a reasonable opportunity to quit the crime because doing so would in fact increase the risk of gun violence to the defendant other participants and vice cantors if in contrast if completing the drug sale without in best or only way to avoid danger then the jury would be entitled to find that the defendant not and who intend to facilitate a drug deal carried out with a firearm this is exactly the same situation we have here mr steiner would have become aware of the firearms when his started shooting but at that point he could not have run away or confronted his coconspirators without increasing the risk of gun violence and harm to the victims under the very strange circumstances of this case where the blazer was immobilized again we all agree no one set out to commit a carjacking it became a carjacking by necessity our point is that completing the carjacking and driving himself and his co defendants away from the scene may very well have been the best way to avert for violence towards the victims and towards good samaritans who were passing along their way and another point again related to roseman is i think this case involves even less evidence of advance knowledge in the supreme court had before it and roseman when it vacated and remanded for further proceedings so factually i think rosemond is kind of similar in that we've got a car full of coconspirators one of whom who may have been mr roseman himself jumped out and started shooting it's a little bit unclear if the evidence that the others knew that was going to happen but in bozeman the shooter then reentered the vehicle and all three coconspirators chased after the drug dealers continuing to fire shots in our case we have two co defendants jump out and start shooting and we know that the shooter was not mr steiner and then we have mr steiner driving his co defendants and the impala away from the victims and so i think that's a big distinction to make here is that mr steiner's assistance in the carjacking actually served to remove himself and his co defendants from the victims so this isn't that almost by definition true in a car jacking you separate the victim from the car well i suppose that's true your honor but again we have we have sort of a division of labor between the elements of this carjacking offense where we have wayne where an torrie wilson doing the threatening they're firing the weapons and mr steiner is simply he gets the impala out of the ditch and drives it away and then more than that once they are away from the victims the police show up there in pursuit of mr steiner makes what i think we would be fair to characterize as an attempt to quit the crime he slows down the impala jihad walker testifies that he's fixing to tell the police what happened but mr ware and mr  wilson who are in the back and our mind the court are armed and have just been firing started braiding him ask him what are you doing keep going so he continues to drive one thing you have to deal with is our prior opinion on direct all and i mean in that context the court was addressing whether mr steiner had associated with himself with the criminal bench or not whether he had advance knowledge and furthermore this court does not make factual findings that's the province of the factual  and so i think under on this record we've shown that mr steiner's previous conviction for aiding and abetting a nine hundred and twenty four c violation necessarily carries so i'm still struggling with your argument that there wasn't sufficient time for him to have advanced notice and really consider this would drawl seems like your argument be stronger if the evidence was he did nothing other than get in the car when they carjacked it and take off the evidence that's not the evidence the evidence is that while they were at gunpoint he went and retrieve the keys he drove the car i don't know how you can say that he didn't his confederates at weapons that point and to actively participate in the carjacking well i'm not saying he didn't but roseman requires that he intend not that his intent be not just to facilitate a carjacking but an arm carjacking and there's no question that is actions are facilitating in this case the carjacking but at this point he does not have any reasonable opportunity to disassociate himself from the use of the firearm and his actions at this point getting the impala out of the ditch and driving it away i think are calculated in order to decrease the risk of gun violence i'm not sure that was well perhaps it was we need a car to get out of your well exactly you're on  to get out of there to preserve the status quo and decrease the risk of gun violence decrease the risk of us getting arrested that is well you are not as well so i mean i think his conviction in this case necessarily carries a significant risk that he stands convicted of an act of the law does not make criminal and i think we can make this showing from the trial transcript as a said before there is no evidence of advance knowledge and conduct without this level of knowledge is simply non criminal following rosemon another point i wanted to make in terms of their advance knowledge before as they're loading up the car so the evidence is that when where and only when where was loading the guns into the into the vehicle she had walker testified  as but i think beyond that on cross examination mr ware's attorney asked jihad walker to agree that he saw two individuals load some firearms into the back of a chevy blazer and she had walker correct  one individual wayne where loading firearms so i mean if the point if the conspirators collectively are aware of the guns and collectively are intending to go commit an armed robbery there's no reason for jihad walker to make this this odd clarification and correction and again jihad walker testified on direct examination not that steiner observed the firearms being loaded into the car that he otherwise knew or was aware of the firearms but that where did not try and hide the guns from mr steiner this is just this is very odd wording and we can't assume that this is advance knowledge that that mr steiner possessed advance knowledge of firearms would be used in the commission of any offense until they actually appeared on the scene but it would a jury without direct testimony would a jury be reasonable in inferring any kind of weapon i mean like i guess maybe i'm too taken by the fact that one of the two weapons an ok but i mean if it were a bazooka or a shell you know a shoulder fired missile launcher or something could the jury reasonably infer that steiner would have noticed the thing being loaded into the car well certainly if he has a personal grenade launcher that's taking up the entire back seat i don't think that could go unnoticed but an a k forty seven is not so giant that it could not be placed relatively comfortably on the floorboard of the back seat and again remember mr steiner it's undisputed was the driver so presumably he's watching the road and is not really paying attention to what his co defendants are doing in the back seat or what they may or may not be loading in the very back of the vehicle is this is the question what the route the jury reasonably could have  or is the question was there enough evidence that he was aware of the gun beyond a reasonable doubt which is that i think it's closer to the latter your honor the government has to prove that layouts knowledge beyond a framework in that we're looking for whether there's a reasonable probability that mr steiner stands convicted of an offense that the law is no longer makes criminal and i think given the absence of evidence there is such a reasonable opportunity there is evidence in the record plenty of evidence in the record that he had advance knowledge of these less it's all star the advance knowledge and we can get to the crime itself it's not just that mr walker who is a coconspira witnesses actually testified at trial she saw this gun and she was struck by it she said it was quote very big and very long and it also had a banana magazine attached to it so it's even bigger the gun itself is part of the evidence here the stores where the guns are located yet  that the guns were in the backseat yes because the way the crime happened ok when he was the driver of the car so he was in the front seat mr sanders in the frenzy was driving the car and there's a gentleman behind him of the john a k forty seven mr steiner yes lands on a bright was  hole in the a k forty seven in his lap or was it down on the floorboard there is no evidence about the position of the gun but given the size of the gun it is difficult to imagine that someone driving a car well that's a good argument but see that's a good argument that you could make to a jury but aren't we speculating here about whether or not he was holding the gun so that the driver of the car could see the gun i mean it's possible that it's probable but we don't you know that the government has to prove it beyond a reasonable doubt that he had  slams on the back of the car at this point the testimony is where and the other gentleman jump up start shooting their guns at that point the people who were in the car the young lady is driving she's ducking to avoid getting shot throws a corner of backed into a ditch it's not reasonable to say that mr ware jumped out when to where the cars were connected somehow open the back seat got the gun and then start shooting he had that gun ready to go they were ready to commit this crime do we know whether or not the guns were in a remote but could the guns have been covered with a blanket there's no evidence there was a brought blanket out of the car that i mean that's my point we don't really we're going to have to speculate well one thing though we don't have to speculate about is what  everybody jumps out of the car and i was and the bullets start flying and exactly so help me with the because i do take your you said companion so much nicer than i had said adversary or your companion a do take her position that look this is all happening very quickly and roseman says in effect sort of like conspiracy like you've got to have a reasonable opportunity to withdraw yourself and he didn't take issue with one thing he said your honor is did not happen quickly this is the keystone cops or robberies who said it  if you just look at what happened they wrecked the car they robbed the girls then at the end after that they have a conversation but one of the one of the ladies testified they started talking about it amongst themselves and then one of was one was more watching us at that moment they were still talking themselves one of the girls had enough time she's caught a mop and this is the before they started on the car and they had down in the ditch while cars were passing by including a good samaritan who they shot at a run off exact and they told the girls over the boyfriends around in the woods just because i think it's important jewels and i really want to lay out everything that happened a year they wrecked the car they still the stuff they try to drive their car away it's broken down they try to get the other car it's stuck in a ditch there's a point where all four of them are in the ditch the girls are appeal and we're deciding this after we're arguing this after roseman came out the government doesn't have to show beyond a reasonable doubt here that mr sonner had the opportunity to a draw though quite frankly on or given all says untimely but in any event roseman the rosen claim fails on the merits because there was an adequate opportunity to withdraw i think that's correct ok i think that's correct are there any more questions on the  your position here is that it is that is correct or so that was the dominant force of the opinion it seemed to me but on page six of the district court opinion judge watkins said as the mash judge found steiner's continued participation acquittal arguing that the evidence was insufficient he did not concede guilt as to any element he preserved his challenge by presenting sufficiency of the evidence argument on appeal and more importantly as the government affirmatively conceded in the district will quote from their brief steiner properly preserved his broken claim at all stages in prior proceedings i think we're with you on that i think you preserve you have a timely roseman claim i think the force of this argument goes not to whether you're precluded from advancing it so much as whether your argument makes sense on the merits so it seems to me this whole whether he had a chance with drawl is easily solved by this they huddled together the carjacking but i do dispute that he had advance knowledge that firearms would be used in the commission of an armed carjacking and so his assistance is facilitating the carjacking but how can you argue that he should have had a chance to a draw from an armed guard jacking at the top the same time conceding that he actively participated in the armed carjacking he wasn't a bump on the road bystander on this this is rosemond all over again the the defendant can continue his acts of assistance with respect to the drug sale without his intent going further for it being an armed drug sale of the drug sale was already in place before the guns came out that was already in motion right well yes or no i think it was sort of a continuing offense in that they turned and kind of went after i c might time has expired you can continue and i have another question that if we look at the testimony at the trial and to look at it again i thought the testimony was that they planned the participate in a carjacking but they didn't plan the participate in the armed carjacking am i wrong about that there in terms of the meeting before hand they agreed to go hit a lick and then the testimony was that they understood this to mean that they would go get some money or commit a robbery there was no indication that anyone understood this to be an armed robbery or that firearms would be involved in the