may please the court your honor on eugene a lot of ski i think appointed to argue the appeal for the defendant to know when he's the appellant so the court knows defense counsel have divided up their argument time of thirty minutes among the five of us or each take in six minutes we've also divided the arguments by subject matter pursuant to the court's order to try to get some sense to that so i'm going to be arguing the jury instructions mr locke second will be arguing the double jeopardy issue mr johns third will be arguing the issue and then will be followed by mr sorrels and mr jordan who are arguing  that we point out in our briefs is actually constitutes a plain error it is the defendant's burden to show that the jury instructions on counts one and two contained an error that was plain that is clear or  obvious and that affected substantial rights under the ilana case an error can affect substantial rights if it's not harmless that is prejudicial or if it falls into a category of mistakes that are so serious that the court thinks that it a should reverse them regardless of prejudice or or maybe it might be in a category where prejudiced should be presumed and then finally of course the court does have discretion under the plane air standard and it typically it does exercise  instructions was structural is we've tried to show that this is a special category of error under the law no that doesn't really lend itself to prejudicial error of you there were two elements missing and what's important about that is that it takes case out of nater against united states the court knows that nature against united states held that the omission of one element from a jury instruction is not necessarily error although i would posit to the court that it could be a structural arab the statute had only two elements and the instruction omitted one of them and it would be an omission of fifty percent of the elements whereas nader if you look at it is an eighty percent case there were five elements and the jury didn't get one but it got eighty percent i would say that until there is more guidance from the supreme court the court should treat any sort of omission of more than one element as really being there a structural type of there are in other words an error that's so  analysis so i think we have to be very careful the two elements that were omitted are quite clearly required by the law the one is the requirement that there be a showing of impact on interstate commerce of course  it was clear under ashton certainly that even a conspiracy must be shown to have a potential impact on interstate commerce it's a separate element the government makes an argument that somehow it's included in the description of the the offense but we really think that it's not and we think the court won't find it the second element that it's omitted requires a few more building blocks but we say that the court omitted the overt act requirements of the hobbs jack conspiracy instruction now the government says well look even if such an error how could it be a plain error because the circuits are split on whether an overt act is required and besides the one circuit hasn't ruled on it the government is correct in stating that but i would say that what is form that interstate commerce was involved your honor i i think i think we do know that i think it's clear but i think that when we're in the when we're in the realm of structural error we really are not looking at the  of the evidence we're looking at whether we have confidence if the jury was instructed to design a stand your argument correct it is hinged on this so called structural error that is no matter what else happened we have to reverse and under the and what is that a yes or no yes it is what case you're relying on that this is structural air i'm relying on the principle that existed certainly before they made her case which is the idea that a defendant is entitled to have all of the elements of a allow two elements to be considered not a structural error moreover in the jury instruction findings or no particular findings about the movement of commerce undercount to which is the hijacking spurious account and i would say to the court that a mere conspiracy and naked conspiracy in agreement with no act in furtherance of it can never have an impact the newspaper if the four of us make an agreement to move that picture of water to the bench there unless one of us does something about it we could have court said that as a matter of construing the statute because the statute doesn't say overt act we're not going to find that there's an overt act in it and indeed the cases that have construed the hijacking spirity as not containing an overt act requirement you rely on surviving i say that your body is a difference that should it was passed nine hundred seventy where is the hijack was passed in one thousand forty eight at the same time of the codification of the criminal code which contains section three seventy one but more importantly i would say that the difference with the hijack is that there is this interstate commerce constraint and that you can't read the overt act requirement out of it because you simply won't have an impact on interstate commerce bonnie's forget don't forget would and might not and might not have been brought to lawyers attention immediately and so what i would say is that if you do consider especially given the constraints of lopez and the constraints on federal power that lopez requires appeals but i think that once you do put lopez and morrison together with the hijacking spirity the rest follows pretty easily and so i would say to the court that because those two you have you have a situation with two elements are missing court the court might find an effect on substantial rights they don't really define it as being a category of structural error and maybe there could be a species where you might want to presume prejudice and it's maybe something like structural error but not quite i don't really know but i think it's certainly a tougher case if it's not structural error if you look at count one we also have a much bigger problem and that is count one is a conspiracy instruction without the conspiracy element the defendants are charged with three seventy one but the judge starts out giving them the instructions on twenty three fourteen the substrate askance now there's arguments in the greeks about whether the instructions as a whole are clear the government points out correctly that the judge tried to correct  and the primary point that i'm making is that the hobbs act conspiracy charge is included in count one and when it is duplicated in count two that creates a double jeopardy problem now count one state that it is a conspiracy to transport stolen property in interstate commerce so you start out saying well it charges a conspiracy under section three seventy one however it goes on to say that the conspiracy was carried out by means of robberies and burglaries and i think everyone agrees that robberies and burglaries  conspiracy charged in count one what the government i think has done is charged the conspiracy in the traditional way that it is under the fraud from case of the conspiracy is the crime no matter how diverse it's objects and so in effect what the government has done is charged in count one a conspiracy with two objects one to transport stolen property interstate commerce and under blockbuster you lose well the blog her blog her task simply does not apply in this case because they're not two separate statutes there's not conduct charged under two separate statutes there's conduct in effect charged robbery in count two they're not two different statutes involved count one charge is a dual object conspiracy one to one object of which is hobbs act robbery count two then duplicate that exact hog zakk robbery so they're not we're not talking about two separate statutes and therefore the the block murder test has no application so what i'm saying is simply by by actually  alleging count one in such a way where interstate transportation the stolen property almost becomes incidental to the charge of robberies and burglaries burglaries are such a large part of the charge in count one that it practically takes over the entire the entire county what i'm saying by doing that is that they've done something that they didn't intend they've charged both conspiracies in count one and then they've gone ahead and charged one of those two conspiracies in count two and the reason that's a reasonable construction i think why that is best illustrated is that the case against my client is entirely inadequate on the issue of did he  transport property in interstate commerce he was a crew member who committed who committed the robbery up in in oregon he had nothing to do with transporting the property in interstate commerce and there was no evidence introduced in the case in the case that he knew that the goods that he stole in the robbery were ever going to be transported he got paid fifty thousand dollars for participating in a nine million dollar robbery there's simply no evidence presented at the trial that he knew the goods were going to be transported in interstate commerce as far as the as far as the evidence was concerned the good stolen in oregon were going to stay in oregon to there were he in fact came to oregon to commit the okee robbery but that's not to say that he had any knowledge what was going to happen to the stolen computer chips after they were after his job was done and in fact it was part of the conspiracy in this case to keep crewmembers like my client as much in the dark about the details of the conspiracy as possible and  the conspiracy as fossil for other stuff that happens they're saying they are saying however that count one charges a conspiracy that has nothing to do with hobbs act robbery they're saying that it's only a conspiracy to transport stolen property in interstate commerce that's what they say the charges i'm saying it was more than that and then they duplicate that charge in the second count but there's there's simply no that he ever participated in the interstate interstate transportation of stolen property part of the conspiracy or even that there is a reasonable basis to infer that he had knowledge of the fact that the goods were stands up and says you can call these cooperated witnesses wherever you want sociopaths criminals right down wind and then says but these are individuals and these are witnesses that the government put up in their case clearly what's going on here is the further and that we put in the context of the entire closing argument they state if track train where the organizer in this case you have to believe that he trained every single one of these defendants in this case and that the government was involved in that knowingly obviously they're putting the government stamp of approval on this witness that's improper that's clearly vouching well clearly watching this and unfortunately counsel didn't see it as clearly as you see it now absolutely no objection situation where these comments to where they repeatedly refer to the government and put it in a context where they're standing up for these witnesses this isn't a reasonable inference we have and there are some argument that was a reasonable inference based on the evidence but when the morning your honor donald sorrels on behalf of kwaku and i raised in my grief two arguments that one of which is unique to him and the one that i would like to address my attention to during the course of my argument given the amount of time that i true principal coconspirators in the same crime in the true crime one was nine tron and the other was the government's principal witness truck they both involve the theft of millions of dollars of computer chips they both district court excluded the fact that the brother had been involved in this other crime six weeks later involving many of the same coconspirators when the same type of that's all you indicate there's a california supreme court decision which of course doesn't bind  the situation one where there's actually two tasks the circuit we haven't cleared up one one of them whether substantial evidence is required and judge where it chose to follow that line of cases and you're holding or your argument is that he can't do that it was an abuse of discretion to follow that line of cases absolutely this court held in morality that if the district court judge used that iranians view of the law evidentiary standards then it necessarily isn't abused beyond that but here we've got two lines of cases in our circuit how you say one is right and one is wrong we haven't told you which is which well one i think is clearly wrong called mendez arline rule of cases that was most recently expressed in people versus green before it was over ruled in people versus hall now this court the first time it addressed the mendez arline court goes on to say that's been criticized by california judges like the district judge we do not doubt that in some situations applicable of the application of the mendez arline rule would violate the constitution so when it was first noticed by the night circuit it was viewed as a rule evidence rule of law that is unique to california and it has potential constitutional implications by creating an undue burden on a defendant's ability to present  now unfortunately it turns into sort of a game of telephone where over a series of cases and a series of screen sites and a series of blind recitations to perry versus russia we now have these other cases decisions you have to petition for a rehearing in bank for that well but what we have is what we have and what we have are cases in our circuit that are serving to decide if wrong you point out but it is if the district court follows our decisions how can we over are those decisions are wrong and i'm not even asking about that and as long as they're there and we haven't overturned them by hand in bank decision how is the district judge reversible on an evidentiary point when he follows our could have done the same thing that i have done on behalf of my client and go back to the roots of these doctrines and find that it has been overruled by the supreme court and perry versus rush the first case addressing this mendez arline rule recognize that as a unique california evidence the government could have done that but that doesn't doesn't obviate the problem i see with the case and there may be a simple solution but i'm having difficulty let's assume you're right  as long as it's our rule right or wrong well there are other standards by which we can judge the admissibility of this evidence other other cases that are not restricted solely to mccormack must have been my brother and the proof that it must have been my brother as look he was he's the kind of guy who did this thing before and therefore he is likely to be the one with the again that in fact was all  client was allowed to argue from half a deck of cards the point that his brother had some very criminal propensity really does a tremendous disservice to what actually happened below four zero four is not a rule of exclusion of other prior act evidence it is a rule of inclusion that it there is a presumption that such evidence is admissible unless all it shows is criminal propensity now i set forth in the breach that the standard of is more like i get i think the evidence shows far more than a simple propensity it shows an association with the brother and two of the principal coconspirators in this case it's more than just somebody robbed the same bank last week it's doing it with the same individual closely in time separated by only six weeks the proper and my client share the same address they had similar physical appearance the principal witnesses against my client to cooperating codefendant who played out in cooperated with the government neither of them recruited my client who was that mostly crew member in this case both of them had a  recalling his presence by clients presence at any of the events leading up to the robbery at the robbery my client according to the government is wearing a stocking masking cannot be identified i said quietly quotations in the transcript in my brief critical telephone calls and what those telephone call show is a series beginning on october twenty sixth prior to the ok robbery and continuing steadily past the okie robbery up to december sixteenth the day before the highway want to one robbery so that they terminate they terminate upon me arrest of quite annoying have the government have the jury been able to view that critical telephone the in terms of this potentially other line of cases that we can draw on so that is that evidence that someone else committed the crime is in truth calculated to cause the jury to doubt the court should not attempt to decide for the jury that no correct your honor thank you are you fine thank you or are you are just wanted to briefly highlight one point that is particularly specific to mr know and that is the this this no for this home invasion robbery it's completely unrelated to the okie robbery if her intention was to try to show a prior relationship between the two co defendants she could have given notice of this and the judge could have limited simply questions about whether there had been a prior automobile transaction that was not done there was a request a motion produced closure of other crimes evidence that my client joined in pretrial this came out of nowhere and then i submit the prosecutor when initially told by the judge and have to do it didn't end around and got it in by harkin repeated really over their suspicions that this car was related to the home invasion robbery she did it on cross examination of that jury instruction again you know but i don't think you should have allowed the evidence to come in again afterwards ok but you're going for a mistrial now you have used discretion when the judge gave curative instruction i really gave him initially but i don't think he gave him after it happened me it please the court i'm purty heller and i represent the government i'll take the issues in order that they were argued in front of the court first as to the hobbs act instructions the government's admits that there were no  conspiracy to commit a hobbs act robbery that there doesn't have to be an actual effect it's merely that if the team were realized what it had a probable or potential effect and that test can be applied whether there's an count one went to the jury without a definition of conspiracy and therefore as effective is infected and has to be reversed your honor as to count one it was our position and laid out in our briefs and i know that when you look at all the instructions in the record as a whole as one must do under a plain arest standard that the jury knew that count one charge to conspiracy and what definition of conspiracy in count one was there in the written instructions which were given to the jury out one the court got it right and my question my question is in count one did the judge ok and then you know sadly the answer is no he did not give the appropriate definition and count one that's your first answer initially yes all right and then your answer is that it's a because it was done honor we believe it's dave because of all the other indications in the record that the jury was instructed that count one was a conspiracy count do you agree do you agree says i will discuss briefly review the law relating to that should be read just count to the conspiracy that's correct that restricted all of the definition of conspiracy under count to two count two now aside from the instructions given and count to one instruction told the jury that they should apply that you think instructed him as to conspiracy on count one the written instructions right  our excerpts of record on page three fifteen three fifteen orally gave to the jury that the supplemental instruction most clearly presents to the jury that count one is also a conspiracy and that's that excerpt three one for yes your hon was this was a misstatement on the part of the court and not that noticeable because no one objected and and said conspiracy applies to count one and can show that this was a misstatement by the courts and no one really picked up on it and in light of all the repeated references to the fact that count one charge to conspiracy it's fair to therefore conclude that the jury was not misled about that well the problem i think there's a generic overarching problem conspiracy if you do one thing you're guilty of everything and i don't understand looking at the closing argument the way it was argued i don't see any difference in the argument as to count one account too although they are dramatically different compounds the problem with the instructions because the instructions defilement the element of agreement on count one and it was a case of argue with you agree to anything you're guilty of conspiracy well so let me know a slightly different issue or a very different issue really than the overlap between count one and count two and one final point on the instructional error is that under a plain error standard it's really unlikely to have any effect on the two individuals who are crew members are not organizers the government doesn't have to prove that they knew that these goods were going across state lines certainly they knew that these goods were being transported there was a truck that came from california they were loading they they robbed gokey but my point is not sufficient to necessarily but the fact that the omission of the description of the elements of the crime and the way the case was argued to the jury might have led the jury to believe that you could convict them on the same on the basis of the same evidence and count one account only round and well i mean it's certainly prejudiced the argument i count one give the material elements of the crime particularly as to those crew members but but the but the mistake if any in the charge didn't really go to the relationship that course that they were included in any mention of the robbery is of course it was included in the count one conspiracy in the indictment and then argued to the jury was that the main intent element that you have to prove our knowledge element you have to prove carefully differentiate the two crimes and when she says here's the count one conspiracy in this is what we have to show an agreement to transport the stolen property then there's count two but  some of the facts will go to both and the fact that she mentioned the fact as to boast merely shows that there's an overlap but that doesn't create necessarily a double jeopardy problem unless you live lock burger and find that it does  i mean that's that's the argument and that's very much for the crew member so you're importing the argument the hobbs act violation conspiracy and to the to count one now the problem i guess what i what i'm driving at is the problem is that when you miss construc commercial kind of a criminal partnership which the position of the government that that is an agreement to accomplish an illegal objective and i understand that argument but in united states versus remember we had a second issue that must be defined and that is the intent to commit the underlying offense there's nothing on page three fifteen that gives that part of the required instruction where does that where where is that instruction part of the instructions understand they can't charge to conspiracy once that is sufficiently charged to the jury and page three fifteen is one place where there is the jury when there's more than one page  one does charge a conspiracy then it would know that court's longer several page instructions on conspiracy law apply to count one as well as count two that's the part of the instructions where he specifically  they applied the count to right and we're arguing it's saved by the written instructions as well as the the per their discussion that count one is a conspiracy well now there is no objection to these instructions that i recall not only are you so they are clearly erroneous i mean they are roni it's the intent was never instructed on count one what you're saying is it's not clear air because they would have now understood that they were to take the intent instructions intent to commit the underlying offense from count two and put it in count one although he instructed originally it was only to count and we told the court didn't leave that we would look at the testimony fairly and without prejudice we would decide for ourselves without regard to what names they were called or what agreements they had that we would decide their testimony and we would evaluate it as we saw fit what is that me when you look at the entire context of those comments that the prosecutor is when she is actually referring to the jury and it's just perhaps i guess an inference could be drawn from that that we would decide for ourselves what their testimony we would decide their testimony and we would have valuated as we saw fit at least susceptible to the implication that the prosecutors if they thought the witness was lying perjury that they would remove the benefits of placing right and can you again directly judge which portion of says the court of the or the prosecutor we have guarantees of truthfulness because we have a lever on these people that we're going to pull and if we don't think they're truthful you know we're going to do something about that apparently was  feature of the plea agreements in this case and the question i have for you isn't a fair implication of the statement that we would look at their testimony fairly and without prejudice we would decide for ourselves without regard to what names they were called or what agreements they have necessarily would have outside their testimony and we would individuals were coming into this case politely agreement with the government we all knew that and we told the court didn't we and i read that comment as well as we can refer to the jury when he says we told the court right statement it is true that for a fact that was in the record i believe again looking at in context it certainly wasn't intentional it was a mistake and that she said that statement in the context of many other statements about why the jury should agreement that they've read the post for i honestly in this case i understand that this was done in direct examination of the witnesses based upon statements made in opening statements by counsel have we got a recall the facts but i can certainly look at that and distinguish it from the court of if you want me to let me turn and there another other questions on these points to the point  court looked at and decided that they weren't sufficiently distinctive to warrant that inference and if one can't make that inference then it does come down to a propensity argument which of course is prohibited if you look at the recruited the crew members he was involved in paying off the crew members his involvement and the highway one are one robbery according to their properties with quite different he was not involved in the robbery he didn't want to be involved in a and therefore you could do this i mean i may that doesn't do much for me but to say he was part of the conspiracy which i gather you think he was because he was involved in this whether over his quite a different matter explain why you don't think that's highly i guess i think it's not highly probative of identity which is the issue in the case the case is whether it's a mistaken identity to this day that the brother was involved in a separate robbery with some differences that i one robbery and in fact there was some specific point that both of them remembered is that because he was one of the taller of the crew members it's his job along with another one of the  identification of both the operators knew no one went to school with him and the other one testified that he had known him for about a year so his from the government witness that there was no hesitation in the identification concerns about not in the district court was very concerned about that aspect of the evidence that was brought up so late in the case with a motion to severance and i was concerned about that aspect of it i see my time is there was direct i should say of a of the government to the f b i agent agent think that no one identified the brother as being involved and i had shown his picture to the cooperators and no one identified him as being involved in the ok robbery the home invasion and after the after it's the same the defense objection to that point no evidence came in on that and it's actually just record compliments of the government about staying within the confines it had said the government was allowed to mother had given it to tithe and then no had taken it back but the testimony that came out about that simply was a child and then don't buy it from knowing he had denied that on the stand and so the government to your honor what is to show an association between these two just pendens and the other was directly contradict or to impeach ty bando who testified that he didn't know any of the defendants and this tended to show tie no into the home invasion not only get this within the objection the witness never answered that question and the court gave the proper cautionary instruction the only other statement it was really one or that it was there two based on again all the circumstances of that opening robbery to tie them to the larger conspiracy for a number of reasons one is that they were involved in what we call the court activity not that they were organizers but that they were involved and committing a crime which was directly at the center of the count one conspiracy that is robbing opie and helping to put these chips on the truck which were then going to be delivered transported and sold and they were of course going to get the benefits from that they were all paid from the proceeds of the opi robbery in addition there are several other factors about this particular robbery that we believe put them members and a larger can and if you say there's nothing we just have to make an inference that's a fine answer but but i'd like i'm interested enough to know there's nothing in the record that ties them to the prior to the other robbery that's true so what  refer you to was actually the one page prior to the one it's not in the supplemental record but if you look in the excerpts of record of mr chen when at page four sixteen and volume two you'll see that some days later after the first set of instructions were given by the judge there were some closing arguments and then the judge in reaction to stuff said that the closing arguments gave some clarifying comments and did at that point state of the jury that charge  one count one charge is a conspiracy and he didn't say three spend the money again he said twenty three fourteen but this is kind point i think is that it's really tough there was no explicit instruction to the jury to snip out that later discussion of conspiracy it into the elements twenty three fourteen so that when they're in the room looking at the evidence and the elements they'd have that they're in private so that was the basis of our arguments that this comment really did not do the job  part of the conspiracy to keep the crew members in the dark and that's the expressively testified to by one of the two primary cooperating witnesses thought in the april third  my reply brief when the government said it in their opening brief and i have to correct that again because i heard it or heard it stated by the government in this argument my client never was in a position to see goods loaded onto a truck for transportation anywhere that's just something that the government has asserted and i pointed out in my reply brief there there is no support for that in the record and i cite the only place where where it could have been to show that it was not in that point in that place either so i think my knowledge that my client had  i just wanted to follow up on the judge thomas comment with regard to the second aspect of vashon the second point i know excerpts of record for twenty five and it's in my brief when we go down further there's a reference to the clear agreements  that they're not only just deciding this case the implication of their decision would affect other cases in which there are plea agreements and i believe that was improper thank you your honor with respect to count one the sufficiency of the evidence the government argued that the evidence that the brother quite annoying was a crew member or was a member of the conspiracy and the highway suggest then that my client at best was only involved in the single incident and if the government is now conceded there is absolutely no evidence that they presented below or argued below that he was involved in anything  thank you very briefly i disagree with the government's position that it was unclear or confusing testimony after the charges that jackson about this home invasion robbery at trial transcript fifteen one sixty nine the prosecutor herself asked and you thought at a later period of time when it was the home invasion it must have been about that particular black b m w if there was any confusion given by the wife the prosecutor made clear to the jury that she was bringing