the sole statutory provision at issue in this case perhaps it's bias motivated assaults that interfere with commercial or other economic activity in which a victim is engaged at the time of the assault a jury here found that the defendant violated that statute by assaulting his coworker who is actively preparing packages for interstate shipment in an amazon warehouse the question presented is whether this prosecution is constitutional under the commerce the jury found anything about interstate commerce  juror the jury found something about commerce which is that but not interstate commerce no that was not the jury did not need to make such a finding and that flows from the arson cases where this court has held for example in the case with the daycare center that even though the daycare center operated fully within the city of raleigh that it was still federalize a little bit federally criminalize a ball to prosecute the defendant for setting fire to such a business and one way to think about this case is that if it was a property that was in that was with the act was done upon and here that act was done upon the victim who yes honor and the victim was also directly engaged in ongoing active commercial activity and the assault here interfered with his ability to continue doing  me an unusual case you know you're going to look at the statute you have multiple problems to proceed all of which include specific provisions regarding crossing international border interstate or foreign kirmani commerce using an instrument towie of interstate or of for foreign commerce except this one which doesn't have that requirement now you owe you an amended the indictment to take out the interstate or foreign commerce provision that was in the original indictment and it's the way i read most of these cases that deal with this is that there's an underlying economic activity that like in the arson cases animal fighting marijuana business and the action is upon that here it seems arson which is a non economic act only where it targets a building that is actively employed for some commercial purpose same thing here this structure targets bias motivated assaults which is conceitedly not economic conduct but only where it interferes with ongoing commercial activity and so if you think one way to think about this case is that if amazon had a machine that did exactly what curtis types was doing in this case collecting items putting them in a box and packaging the box and james held the defendant here and set fire to such a machine he would be prosecute could be prosecuted for fraud or arson fully consistent with the commerce clause in line of but this court's precedent and supreme court precedent just and it makes no difference here that it's a person who is actively engaged in ongoing commercial activity as opposed to up to a piece of property that is engaged in ongoing commercial activity because the defendants acts directly interfered with that ongoing act actually but these other cases have some instrumentality think that has some direct interstate commerce impact here all you've got is a finding by the jury that there was some impact on commerce and that's the same finding that you have in the arson cases where there is no there's no requirement in the arson cases that a jury find that the daycare center affected interstate commerce in any way even if the daycare center were operating fully within intrastate commerce and a defendant's arson targeted such a building non economic active part arson targeted a building that was fully engaged in interesting commerce this court is still held that the federal directly interfering with a property that is you that is actively employed for a commercial purpose and interfering with the person who is actively engaged in some ongoing commerce can see or do you can see that doesn't matter if the physical assault itself is economic we would consider that a physical assault by itself is not is not economic the physical assault has to be there needs to be some sort of subsequent element in the statute that requires a kind of commercial k yes your honor i think that you know there are courts have been sensitive to that these are different fact that the fact pattern really matters in these commerce cases so if you look at the federal arson statute or the hobbs act it really matters what exactly is going on and how exactly the relationship is working and again the statute requires place here because it's an amazon and here we engage is interstate commerce and yet here we have a confluence of factors we have the victim who is engaged in work for out an amazon warehouse where he is packaging goods for interstate shipment so we have all of these facts here and so on so the narrowest sort of basis for this court to conclude that this prosecution is within the commerce clause is just say that when you have direct interference with that sort of ongoing commercial activity that's certainly sufficient and so there may be an interstate and foreign commerce out of the and no i don't have a jury finding to that effect and in these other cases whether it's firearms or randomly fighting or arson it's the act of defendant upon this particular product that's an instrument telling in commerce here you've got an extra step which may be sufficient but it's the act upon the victim who in turn has some other relationship to an economic factor and i don't think there's a case that's done that no i don't i don't think that's quite right or i think that the statute the arsons i shoot is exactly how this works which is that the building is actively employed for some commercial purpose or the property can be building or property and it's actively being used for some commercial purpose in an arson targets that it can be interests it can be purely in trust it commerce it doesn't need to substantially affect interstate commerce and i don't think you have a case where you have the action of the defendant the other cases it's the action of the defendant upon the object that matters here it's the action of the victim upon the object  say brings you a jurisdictional hook and i would disagree with that just because you're the defendant's action upon the object the object here being a person who's packaging goods for interstate shipment is what brings us within congress in the same way that a defendant's fire to the object a building that is actively used for commercial purpose is what brings it within the commerce clause so it's the same i think it works the same way whether it's  statute i think has some specific language that really shows the narrowness of it which is that you have to have interference you have to have commercial or economic activity and that activity has to be going on at the time of the assault itself so factually we have congress gave a limiting principle and all the other sections of the statute get specific on which everywhere but here specifically dealing with interstate or foreign commerce it's not in this particular which is would you chose to prosecute so it seems like to me that you've gotta add quite a few inferences in order to get to where you need to go no your honor i think that the  ensures that no inferences are needed because you have to have direct interference with commercial economic activity that's going on at the time so in each case there needs to be a commercial or other in our economic activity that the victim is engaged in at the time where he or she is assaulted and he must no longer be able to engage in whatever commercial or economic activity that he's in and use an appetite question what's the limiting principle if there is one that separates this particular was literally put it carrying boxes he turned around to pick up another package and he gets punched in the face in the boxes fly through the air and the facts really matter in these cases as this court recognizes and it's prior opinion when it's said that a complex constitutional issues can be avoided if a prosecution doesn't result in conviction so so all the court has to do is these facts where you have a victim who is actively packaging goods for shipment and he gets punched in the face the goods fly through the air scatter across the floor and he's no longer able to package goods for interstate shipment which is work that he was doing for compensation under that very specific set of facts this as applied challenge must fail  addressed sort of at the various threshold steps of whether the attorney general would certify the prosecution whether a grand jury would indict and whether a particular would convect and you need all those steps before answering that sort of constant broad ruling of this for one into it with me yes again a do you glean anything from the fact that for two says otherwise effects interstate or foreign commerce in other words that suggesting that one affects interstate government espouse that position yes your honor i think the way that these two provisions relate is that for one is about direct interference with ongoing commercial activity and for two is about more attenuated perhaps connections to commerce otherwise effects you would say you read the language of two telling you about one correct you know and i think you know we removed four too from this case because we wanted to remove the idea that you need to think about other more attenuated connection so the district court was concerned about you know if somebody is commuting to work and they get assaulted and they're not able to go to work would that fall what then congress is commerce clause authority and things like that and i just don't think you need to think about things like that in this narrow as applied challenge because we're only relying on the sachet language about the time not the more broad i think more sort of attenuated connection otherwise the facts and the two and response to judgments this question to include interstate or foreign commerce i mean want to include that for was not require that a jury find in each individual case that there is an impact on interstate commerce and trying to decipher is there a clue from the statutory language seems like to me you could read that subsection two to indicate the purposes of exclusion to otherwise affects interstate or foreign commerce because one does not know your honor so so for one it's interfere you disagree with them but it seems like to me that is a plausible reading right but i think that's incorrect for this reason so for one is a category of conduct that congress has chosen to regulate which is direct interference with ongoing active commercial activity it doesn't need to be interstate commercial activity and it doesn't need to be substantial commerce congress can rationally regulate that category of conduct because this court and the supreme court have always sad that congress has the power to regulate direct interference with ongoing active commerce even if the interference only affects in trust and commerce and only even if the interference doesn't substantially affect interstate commerce by itself in each case so this category of conduct and compassed by for one i think is a rational choice that congress made in light of this court's precedent in the supreme court precedent or marson and other even things in order for aggregation to apply it only applies where there is an underlying economic activity so the depends on whether or not you say well what does the statute regulate is it the punch in the face or is the punch in the face statute instrument elegy of foreign commerce short on his bit past isn't his true talent for commerce but yes your honor but the underlying premise is the same is that congress took something that it could not otherwise regulate gun free school zones and made it constitutional by adding in another element of the government has to prove in each case and so when you're deciding whether the statute criminalizes economic conduct or violent conduct you have to look at all of the elements of the statute and this statute perhaps violent conduct that interferes with morning ma'am please the court what the government is asserting here is a power to regulate all economic activity and congress doesn't have that power so i'd like to push back on the government's analogy of the arson statute because i think it's distinct from this arson is an economic activity although not all arsons are federal arsons if i burn your house down you've suffered an economic harm because you've lost your property and you have to rebuild your house but not all arsons are federal arsons if those buildings are used in interstate commerce and my experience is that the jury does have to find use in interstate commerce as an element of those crimes it's not something that's that's a profit that's true here you have an individual who is actively engaged in the neck to vittie that is regulated by the united states government and you're saying that that falls outside of it where as simply and also on real property falls with it does that make in a sense well what i can tell your honor is that congress has different and broader tools when it comes to regulating the economy and businesses and markets than it does when it comes to regulating people that's why congress can regulate the health care market but can't force people to buy health care because it's just a different it's a step too far and so the jurisdictional hook here has to bring the regulated activity within the lopez categories and all of the other jurisdictional prongs here do that by tying it to for example the channels or instrumentalities of interstate commerce but if the problem here is as broad as the government says it is all of those would be superfluous because the truck driver is engaged in economic or commercial activity and you would need the other jurisdiction well a couple responses one is lopez tells us that has to be a substantial interference and the jury here didn't find that and then second as judge a g pointed out the jury didn't find in the facts in the record don't show your client not someone who came from the outside is right there working in the same faith gauged and in working on an activity that clearly is within in a state comment is false because the united states government regulates it and is part of  but congress doesn't have the power to regulate everything that happens in the workplace when it comes to you know personal conduct when we're not talking about an economic regulation and the jurisdictional hook doesn't make this an economic regulation so to take a tourist be lynched the supreme court case that examined the jurisdictional hook of the arson statute said that you don't want to tail wagging the dog situation that the jurisdictional hook is not the regulated activity the essence the nature of the the statute is here interpersonal violence the government is conceded that's not an economic activity and so when congress wants to regulate something that's not an economic activity it can only do so when that act has a substantial interference with interstate commerce and the jury didn't find that here the facts don't support that fine mail lawyers and you know states post offices well even leaving differentiation is what well that person is is in the channels or instrumentalities of commerce by being part of the shipping conduit of that and it may be a closer case if it's for example this is not language that's the term of art that's been used construed by courts it's only been applied as far as we know one other case in the country and in that when the defendant pled guilty to an information so it wasn't even litigated so  this is is so overbroad that it would sweep in any commercial activity and gonzales v rage in a question that congress has at least in this instance regulated the preparation of these goods that are going to be shipped in the state congress has the power to regulate that yes and so someone who interferes with bad you maintain that we don't have a situation that allows for interstate commerce only if there is a substantial interference as output that you're saying that is in a fair it's what you say is not substantial i'm saying that congress can't regulate and interference that is not so strange that point you make using it because when we look at it at  well because amazon didn't miss a beat here there were no packages that were not shipped as scheduled there was no difference with any other shift and any other time that's the expert testimony that came out at trial and all of a sudden we can do question whether it is substantial do we decide it's it would be a jury question a fact but it's a legal question about whether this is activity that congress can regulate and all the jury decided only that the victim was engaged in commercial activity that's all it was required to find it didn't and found an interference with that now we dispute that there's an interference at all as viewed from amazon perspective if you say it's not substantial where is partly in the jurors found that they had found it was substantial though you disagree with your the word substantial was not in the jury instructions the jury only had to find an interference with any commercial activity that include the word substantial in the jury instruction we have preserved that argument but we think as a matter of law as a question of law the judge the district judge was correct to say that this activity is not something that the jury should have you been allowed to address because it's not something the congress can regulate that it has to be a substantial interference with interstate commerce in order for because  apply challenge it's what as applied to what it's a legal theory applied to the facts of this case and we argue that the legal theory is wrong and so it simply is not match up with the facts in this case is something fellow comes in he's got a gun he comes in well let's just say he comes in he beats up three or four people or christmas sees when amazon has all these packages going out you're saying if there's any i guess slowing down of the service it stops that'll be enough but in this instance he comes in and individuals don't as he's in this preparation of the packages or whatever he does over there and he does a purely for hate reason it seems to me what we hope and your position in the future individual can simply look and says well what services got to be substantial and substantial is not just working and in a place like amazon or somewhere like it was the government that wouldn't that would be anything that the defendant has to know any different than an arson if a defendant burns down a building the defendant doesn't have to know that that building is being used in interstate commerce and or prosecution fixin's up pretty well make sure between what is truly local and truly federal and i think lopez tells us when we're looking at these cases we have to come back to first principles and what lopez says is when there is a trivial impact on interstate commerce congress doesn't have the power to regulate it simply doesn't have the power to regulate the government seems to think this is what one of the things the government argues is that in order to reach the threshold of substantially affecting interstate commerce they can aggregate a clay s of activities they're not limited to what actually occurred in this case i think that's i think that is their argument what's your response to that or morrison says that the only time we can aggregate those effects is when the regulated activity itself is an economic activity and so that's why for example when we're talking about something that that there's a market for like home grown we home grown marijuana homemade child pornography for example even if even if those items never crossed state lines it affects the national market there's no national market for an assault  punch in the face is not a commodity that has any impact on on internet or interstate or international commerce and so because of the regulated activity here is not an economic act which the government acknowledges the regulated activity said that robbery is an involuntary transfer it's a loss to the victim and again to the defendant and even a local robbery affects national markets because if i take money from you i don't have to get it from the a t m and so that's why we can aggregate even if an individual then the problem with that theory when you're talking about taylor is that's the theory that we adopted we said that rested conclusion in part on the notion that robbery is itself fundamentally economic the supreme court said no no no that's not necessary instead i'll read you the language the court found straightforward and the case was straightforward and dictated by precedent because the underlying activity the sale of marijuana is unquestionably economic in nature so it didn't matter whether the robbery was fundamentally economic or not well the realm that congress can regulate because it affects the national market homegrown drugs affect the national more and international market for drugs and so that's why the robbery of that person is a robbery whereas a mugging on the street for a person who is not engaged in any kind of commercial activity is not a federal rob that's the distinction with taylor  i think if we look back at the first opinion in this appeal the court in footnote five said that what the had to happen on remained was to determine whether there was a substantial interference substantial effect on interstate commerce we took it back to the trial we develop those facts and they didn't pan out as the government had anticipated and the facts as it were developed did not show substantial effect on interstate commerce for that reason the district judge was correct to rule that the government had not met its burden correctly granted the rule twenty nine motion and we asked this court to affirm that judgment th any other questions thank you and that's what this court has consistently how what's really happening here is there's a conflation of two different things one is what congress must find to regulate in a category of conduct and the second is what must be found in each individual case congress can only regulate a category of conduct under lopez or morris and if that category of conduct substantially affects interstate commerce and this category of conduct which is interference with commercial or economic activity in which a victim is engaged at the time of the conduct is congress could rationally find out that category of conduct substantially affect interstate commerce because this court and the supreme court have repeatedly told congress that in other direct interference cases such as the arson cases and the hobbs act and so once congress had made has that the purpose of the jurisdictional element is to show on a case by case basis that there is a specific connection to a cognizable commerce clause a floor so to me that render aggregate argument more difficult to make because the generally have a clear underlying economic activity otherwise see how you get to the case by case application an eric jurisdictional element your honor but that's exactly what you have in the arson cases the generic jurisdictional element that says you can't set fire to a piece of property that is used for some commercial purpose  so and that's been interpreted to mean that the building is actively employed for some commercial activity and this jurisdictional language just makes that language more specific and more narrow in some ways by requiring that the victim used in commercial activity at the time of the conduct and that's the underlying activity here is just must pointed out in taylor the underlying activity that was interfered with was drug dealing and here the underlying activity that's being interfered with is the victim's act of preparation of goods for interstate shipment and this amazon warehouse which is unable to continue doing so so so i think that sort of answers the question and then in terms of whether there needs to be an effect on amazon there's no case that says that you can own that data that a violent crime must affect the commercial activity of a corporate entity for congress to criminalize it individuals and gauging commercial economic activity and if and if violent crime directly interferes with an individual's ongoing act of commerce that in and of itself is sufficient and that's exactly what the statute requires if there are no further questions i'll just conclude by saying that congress has made a rational determination here to protect people the dignity and right of people to be able to participate actively in the commercial marketplace without facing violence on one of these protected classes a jury has been to cuba that right in this case by saying that curtis  should not be subjected to violence in his workplace because of who he is and we ask that this court continue to vindicate that right by reversing the district court's decision and reinstating the jury's verdict thank you we will come down to a little lawyers and then go to