first case is united states versus i allen number seventeen dash two four two two with the geraldine ok so leave those arguments for that that case momentarily so the three points of error that i want to address before this this case is one the trial heir to the section one of four air and three the shackling era as to the trial or the discord improperly restricted my cross examination of the government witnesses as to the reputation in the community for the violence of boca bogus referenced it in in the in the reply brief where she talked about how she was afraid of afraid of them and knew of their knew of their propensity for violence but i think as a general proposition no i don't actually believe that that testimony from my client is absolutely necessary i believe that my client need to have a  fen has ice and it has a hit their testing with self serving and that the trial of the jury can discount the testimony of the kernel of it and i take that as a given that's fair but in order to get around that in order to actually prove all the objects reasonless portion of it arrest offense and needs to be done through the third party certain individuals in that case it was the codefendant and it was the detective and in particular the detective as it was very important because the detective their understanding of the reputation in the community reputation violence i would submit is much more extensive and i didn't really argue that while an individual codefendant has when you really get we're looking for i mean i'm looking at some of miller's testimony and he says i i did this out if you know i i was fearful of this of this person coming and it isn't is that i didn't really get we were looking for i didn't believe i was in fear from you know in an individual i can claim to rest offense but if if i claimed that i was in fear of the individual was a three year old child even though i for some reason subjectively believe that i had to fear no one would say that subjectively reasonable so i think that the subject upon has a comfort from the defendant so now turning to might my second point the one of for error i raise it below and i under section one zero for a conviction for in local level offense that effectively is paired with a federal offense violates local level law and i would submit that the  court together with the fact that you have one sovereign that allows one punishment and one punishment alone i submit it is in this context i don't believe this at best it is a ambiguous particular guideline within the range or you discounted my argument that she should should have gotten it below guidelines the sentence you're able to two reasons in new and look at the case of a fresh maybe it doesn't move move the needle but maybe does but i don't think from the ninth circuit i believe is well reasoned and really a pretrial the taney decision it was the detainees decision in this case your client been convicted correct that it's true that distinction we should make i don't believe so because within th as opinion itself it was clear that that the rationale why not just a trial before a jury but apply pretrial even applied to sentencing and it was explicit that that that rationale plied to sentencing it was also clear that was a blanket rule in the district that that was not discretionary with the district judge that that is true so here it seemed the record seems pretty clear that the judge exercise discretion i want to go that far because yes if you look at the in isolation i can understand where the record is not sufficiently well the belt but when you put it in conjunction with the two cases i have well but we're here on the iowa case and i understand that but you know i've got the record that i mean the best the best so i think that that needs to be done as to that's at every level in other words this is this is not before a jury obviously you know and use but you would like a bright line rule with findings at every every know he or she had some type of history in the past had a history of escape something along those lines the match the judge could have made a determination for dangerousness and you want a full blown hearing with findings of fact in conclusions of law about whether the person can be restrained i wan say we don't have to go that far and i think could be an initial the determination that's what we had here right i mean the issue was raised right yes so you know the issue was presented to the the district judge in the district  considered it and disagreed with your position is that not a find yes i would agree that that that that's a finding so why isn't the best course to just have this court devolve that or continue to allow that power to be reposed in all of our district judges within the circuit in each of their discretion in each individual case i don't have a problem that i think it actually has to be especially where where a defendant raises it and i would submit that most have not but where a defendant raises it and i say judge miller there's no individual eyes assessment of much of coat of my client defendant john doe and then she makes a determination that the end the matter if the government doesn't test the contest it you know he might be a nineteen year old kid and get his who's a female who just you know committed you know some relatively minor offense then  might be that no there's no reasonable to have this person you know shackled during during during the proceed proceedings and then that could be the end of the matter of course if things change during well clients in custody or any particular defense in custody he goes ahead and enchant someone you know that can be brought to the defense of the judge and the judge like well based upon this these new recent events i find your client you know is dangerous and therefore needs to be shackles nisa true in this case there's a least a reference to a conversation the judge had with the u s marshals  so they had a conversation not on the record correct and so he then as i understand the first to the marshals recommendation that she be shackled correct it's not enough no so of the conversation that he had with the u s marshals should be put on the record explaining why he's making this determination again because if it was a if the conversation was just we don't have the manpower we don't want to do we can't deal with this as a matter of course we don't think it's a good idea that will be a broad based policy of the marshal service whatsoever and this is what the defense counsel argued here today and i don't think that anything that he argued would permit this court to overturn the judge's with the jury's verdict in this case and i would start i could start in the same order as counsel do that for ok so the first thing is the trial error with respect to the cross examination with respect to the reputation evidence one of the things that i want to point out to the court is that the  the defense attorney played for the jury the portion of the audio recording of the defendant the defendant confession to the jury during the trial that believe that was exhibit number fifteen so at his request it was played and i believe that at that point the defendant did state that she did what she did had a fear for so then the question becomes whether or not there was era  the court overruling the objection as to reputation evidence and what is interesting about this record is that i think that more of the defendants or at least of i'm sorry of the witnesses whether i guess  the alleged violent criminals that cause this robbery to occur bogus and was more of their conduct came out through the cross examination by the defense attorney all of the witnesses i think at least something came out  he's saying it would have been more powerful had it been from a state witness government witness well the problem that is in the his argument it might have been if it was the right witness but if we look at detective rashid and if we look at her process the cro first name was john rod and it's not the same with the council spells it in his written pleading for the reputation of it is to be admitted as a pretrial motion she indicated that he was in jail she was sustained as to his reputation for violence in the community but it's witness and you know adding to the knowledge as to their reputation in the community where as we have and i'll just go to if i might take a man who well who was one who went into the store with the gun and he was one who said that he didn't want to be interviewed by the police after you know they found out that he was the one who had committed the crime along with the others because he felt threatened and that was a drawn appendix at three o six he felt that his life was in danger and he said says the problem is the police didn't get to testify were how do you respond well i mean he doesn't have to produce any evidence but certainly he had the opportunity to cross examine the witnesses who were proffered by the government and he did not  if he i would say that there's no harm in or abuse of discretion with respect to it and if i can just move on to the legal part of this judge we have work things i'm concerned about is not much of a rule for three  here well i think that the judge pretty much rules for zero three and you know it's obvious that he has to avoid it's abuse of discretion he has to avoid risk of prejudice and a mini trial but i'd submit that doesn't  supply some sort of analysis for us to review overall for three i don't get with the abuse of discretion i don't think it's clearly fanciful or meets the standard whereby this court could question whether or not this was within his discretion especially as to the reputation evidence because the main argument that counsel makes in his brief is that reputation evidence is not hearsay but the reputation evidence has to come in under another rule of  evidence and if you look at the rules of evidence it doesn't provide for reputation of events of violence it provides from a petition evidence of truth or acidy so clearly this isn't a denial of the ability to introduce reputation evidence it's just limiting evidence which the court thought what create perhaps many trials or confuse the jury or be a waste of time or or prejudice so that would be my response that the argument in the brief doesn't really support what or the argument of the district court as a legal matter doesn't support what he was trying to do at trial and the evidence that came out clearly provided his client with what she needed for her dress instruction to be given and the jury rejected that on her own testimony which they've heard they heard her entire confession and she testified so they rejected her defense and that would be my response to that so the government's position is that he didn't abuse his discretion for those reasons and the make of that what you make of counsel is double jeopardy or i think he's wrong and the reason i think he's wrong is because i think he's sort of melding different theories he seems to think that because the government charged a hobbs act with the robbery under the local criminal code the virgin islands code that somehow that present double jeopardy it clearly doesn't this circuit has already found and i think the court noted that in hodge but also she also fails to recognize that the district of the virgin islands under forty eight u s c six hundred twelve has concurrent jurisdiction over the robbery third degree it arose out of the same set of circumstances and so they just a court had the jurisdiction pursuant to congress to try that alone with the heart attack while he was there any need for us to certify the question to the virgin islands supreme court not at absolutely yeah i think that all of that is it isn't this a little different than our two thousand decision actually that hard decision i don't think so it's the same it's the same charges the hobbs act and then this is a robbery with a dangerous weapon it's the same section of cited i think it's eight hundred sixty two of the virgin islands code section fourteen title fourteen eight hundred sixty two and so you have  have the hots act obviously you know it's interference with commerce by you know intimidation or violence and then you have the robbery first degree which is you know taking permanently from someone property without their permission under force in fear and using a dangerous weapon so each has an element that the other does not and here you also have the distinction that the hobbs act was directed against some signature jewelry jewelry store as the victim whereas the robbery the testimony at trial established was directed against the store owner's son who lost his chain from his neck it was pulled off of his neck and also the  the money that they were setting for their temple was taken and i believe one of the perps when he testified at trial said that he had used the money for his own personal whim it was he said it was like change to him a thousand dollars but they had taken that as well so they took that from them which is their personal property so you have the distinction also of having to local robbery within the context of the hobs are exactly ok yes with respect to the now the third circuit and i think judge harman is on the panel of that case held that in the context of a jury trial there can be no shackling because there would be the specter of prejudice in the words in that case and here you don't have that and that's what the eleventh circuit in the second circuit case said so in terms of like the legal basis for it being error it's not there in terms of the facts this was brought up by the defense at the very beginning of the as far as i know that was done it was preserved for by the defense and so so so you know obviously we're going to approach opinion on this is it do we need to duck some sort of a bright line rule or do we just leave it to the discretion of the judge depending on the facts and circumstances you can leave it to the discretion of the judge and i think that that would be appropriate given that that is the standard of review the one thing now is that the ninth circuit cases it's vacated and they actually said that specific direction when we when it comes to shackle in a sense you know just leave it open only if you want to join the eleventh and second circuit city hall that it's not an abuse of discretion to shackle the defendant during sentencing but other than that no because i think the only direction is given by the supreme court in the deck versus illinois and the other cases that when it's a trial situation and court has to give some reason for it but not when it's not a trial situation anymore counsel no ok well thank you thank you matt close detective i believe this was the first witness call so to the extent that there could be any argument that this is human lives or something along those lines it could be business and the government's first witness and i would submit that where you have a for a three determination which is what the district or you cited there needs to be something more there has to be something so i can give a response so i can a properly tailor my offer of proof maybe so i  can can tailor the subsequent testimony or the cross examination but as a defense counsel you got to give me at least a little bit of something so i can then navigate whatever errors whatever problems are might be so that and minimum i'm able to make a better record for this court's review and i don't think just a a a a naked citation two four three is sufficient now as to the the se of conduct might result in a multiplicity of crimes yes and as i understood miss choose i'm sorry i'm an she said you know this jewelry store robbery in clude a hobbs act robbery under in violation of federal crimes within the same course of conduct and but i don't believe in you know the record is with what the record is but i don't believe that that was it was charged as such i'm it may have been the the the evidence or it was everything became that a legislature spoke to local level law but congress has not spoken and changed black border for purposes of federal law so hopefully that then answers your question but i don't think that i can answer to say that blocker does not apply them as a matter of course man think very much thank you before you leave the podium though i see you actually are the next lawyer to to speak would you rather us take the next case you can gather yourself for than i did because we do have a third nother argument today