a discussion of the failure to prove bias it to present sufficient evidence to prove that mr gooch knew ahead of time that there was a gun involved in the third robbery charge that p and c robbery of march thirteenth two thousand and thirteen the proofs in this case  were that this was the third in a series of three robberies and the government's theory was that mr gooch had to know that fire arm was employed in this robbery because firearms had been used in the previous robberies but there was no evidence of actual knowledge and factually the robber of the bank mr williams went into the bank and rob the bank mr gooch was outside on the sidewalk  here there was no evidence that he saw mr williams with the gun and unlike the other two previous robberies mr gooch gave a statement or a confession as to the third robbery there was no discussion about his knowledge the use of a firearm in the robbery was there evidence that he participated in the planning of the third robbery as he did with the first and second the only evidence that i can recall would be some testimony from a girlfriend that he and boys were going to rob another bank but i it wasn't specific discussion or proof overbroad your honor ok the first robbery is the roses they use the same gun in all three no well one gun was used admitted lee in the first two and that was the that dries more over the department store mr gooch is in the car but mr tripp goes in and does whatever he does inside and i don't i don't think there's any particular signature method that we use in terms of robbery that are about to bank robbery of them then we go to the first first bank robbery i would really say that that's a little different scenario altogether the two men in my clan mr williams go into the bank ahead of time to get the lay of the land that's different than the second bank robbery and all three all three of them involved a firearm all yes all three involved fire so but but we can argue about holmes similar to that even though you say there's no evidence of actual knowledge i mean circumstantial evidence is sufficient that right well the answer's yes again i'm going to say that that's true as a general statement i still think you have to look at the specific facts suggested in my brief that that really to protect the presumption of innocence in the in the government's burden of proof that when you're in a situation where you say well one there's two choices that then that's should not be enough but that's not the rule that we follow the six or so i think i think if you and i think it's telling that when the motion for judgment of acquittal is made close  proves that the trial court doesn't talk about advance knowledge on the third being criminally i mean i really do think you have to show something that that would tell you that the person knows under the rosemont case knows ahead of time that they're going to use a gun and i don't think it's automatic just because you robbed a bank in one way with somebody when you were carrying the gun before hand and there's no showing that he had the gun the second time so even though he was a planner of the robert are going to do well i think they think yes in that sense there's they didn't just wake up and go rob a bank without having a discussion there's some discussion of them but aspire is the actual mechanics of the armor itself all three episodes really are distinct and i don't think it's fair to say well just because in general you do a robbery that means automatically are going to do the same way the third time so i guess turning to the issue of the first robbery of the department store and whether  the court may find it very counter intuitive to examine admitted armed robbery and say how can this this not actually qualify as a crime of violence for purposes of one twenty four c but if you look at the language of the hobbs act in the court he has to look at the elements of the of the ch is it not well i think there's an element of the statute separates them right it does but post math us i mean are there different penalties it's the same crime same penalty know i still would submit there's a aspect of threat to property that could be done in the future and with so there's not a lot there but that's the argument that i made my brief and then finally i would ask the court to carefully view the record as far as the finding of mr rich's competence to represent himself this is a very tortured case he was initially found to be incompetent he was file filing a lot of sort of incoherent proceed pleadings and i don't i don't really see the jets oliver was impatient or anything or or but i do think  determination or final ruling that he was competent you have not appealed i don't think instead you're you're arguing that the district judged did not properly i guess question him and determine as voluntariness his knowledge of waiving his right to counsel right which is a little different than the competency sure and you know you're trying to put one into the other oh sure sure  i have perhaps been a little bit in earth full in my presentation a person has to knowingly waive their right to counsel and i just suggesting that on this record with all that went on the multiple examinations the multiple hereis the only reason you say didn't know when we waive it is because you claim he's incompetent but that finding of fact that after a finding of competence and there's the weather hobbs act robbery is a crime of violence under one twenty four c like to start with a crime of violence argument  violence under nine twenty four c categorically because it involves the unlawful taking of personal property from another by the use of actual or threatened use of force robbery was a crime of violence both under the under the only answer and also under the the alternative argument of the residual clause of one twenty four c which this court has mr gooch makes argument to that this could be committed against or in a nonviolent way or in a future way poisoning you could threaten to poison someone and that that somehow wouldn't be a threat of force in here on the second circuit specifically rejected this argument found that that would actually be a crime of violence because it's fear of injury which which controls and if you fear a future distinction tried to try to make a distinction between intangible property and tangible property but neither one twenty four c or the hobbs act makes that distinction they just talk about property  this really doesn't change this math it's really just it's hard to say in some ways what math is today because it's kind of confuse the issue i think a lot of people have a problem trying to understand math but math it's really just to find elements as things you need to prove to the jury the jury needed to find for a conviction means would be maybe alternative ways to commit the same crime so mathis doesn't really alter the landscape in this hearings in this case ordered competency and evaluations initially good was found incompetent and he was sent to the federal facility for further further evaluation after he was there for about eight months the north carolina came back a psychologist and said that they've after further evaluation and review that he was competent they found that he was moving or willing going they observed him interact on a daily basis with other inmates and people at the facility and they realize that or they came to the conclusion that he was that the first i wanted to make the argument that the district court didn't have jurisdiction over his case and that and he any consistently stuck with this argument  he kept saying to the court that he wouldn't serve any time in prison because the court didn't have jurisdiction and his counsel at the time tried to explain to him that that's not a good argument didn't want to make the argument and good still want to make the argument at that point judge oliver after three competent well to compensate hearings and an hearing on a motion notice of not guilty by reason of insanity were gooch was found to be sane at the time  better if was represented by counsel on the court explained the you know somewhat the rules of evidence or rules of federal procedure so a criminal procedure and after all that and before and has also represented him in the competency evaluations some of the argument about competency dealt with stated to believe somehow that he had a maybe a special relationship with god and that god wouldn't let him serve time in jail and and things like that that doesn't well that might be considered bizarre it doesn't make him incompetent doesn't make his decision to waive counsel any less no are voluntary so really the court i think did everything it possibly could to ensure that after he was found competent to make to ensure that he understood his rights with far as self representation and that he knowingly and voluntarily way of those right that advance knowledge can be circumstantial he's also correct that there is no direct evidence that googe knew during the shaker square opery which was the third robbery in march that that  williams was going to use a gun but there is a lot of circumstance circumstantial evidence that gooch was aware of that fact the method that all three of these people used to do these robberies starting with roses robbery and then the lead harvard bank robbery and the secret every was substantially the same sean caldwell drove gooch and the first one learned all trip but then what gregg williams in the second third drove them to location i provided the gun  what who's a cashier at the store this is causing they also split the proceeds of the robbery and the lead harvard robbery you know gooch obviously went in and used a gun so that's really not a question but the but they follow the same plan again caldwell drove them to the harvard bank coach and williams went in last after the interaction with the security guard became back and committed the robbery and then split the  was going to occur any share in the proceeds actually giving money to his girlfriend and also using that money to buy stereo equipment for himself  i think the best i can say about the sufficiency of the evidence argument is that a discussion ahead of time that we're going to rob a bank doesn't but in their care with it the idea that one of the other people is going to use a gun and again you can see it's the same but robberies are robberies all robberies are not the same you've got a different case and the same three people in all three robberies are tripp is the actual robber that goes into the know but aren't there three conspiratorial but we've got mr caldwell who's the same we've got mr gooch is the same for all three we have mr tripp who's only on the first department store robbery and  case which is a first circuit case where the court said well it was reasonable to sustain the jury's verdict finding a person guilty of armed bank robbery where there'd been some advance discussion robbing a bank but not twenty four c so i'd ask the court to review that decision because i think there's that that's at issue in this particular case as well particularly if you look at all this evidence mr gooch readily acknowledge guns on the first two cases and there's no discussion of the gun he's not in the bank you know showing him we're talking about a mandatory twenty five year sentence here so i guess the court