reasonable jury in light of this new information in light of how we now understand the law would they find beyond a reasonable doubt that he had advance knowledge of the fire the other mistake was that the magistrate judge didn't rely on the transcript of what actually happened with the jury trial which makes it a little bit harder to make a determination as to what the jury would do instead the magistrate judge relied on the tenth circuits summary of the of the nz and that summary had a few defects the main defects were in how involved mr davis was in the initial parts of the robbery what the tenth circuit said what the haslop and that's contradicted by the trial transcript in fact what miss ashton faltered and miss anderson testified to a trial was that was all of the direction of mr hastert who had a gun and was using  coerce the tellers into the vault and then he alone closed the vault the picture that we get through the trial transcripts rather than the tenth circuit summary is one where mr had a six for two hundred forty pound man is directing this bank robbery and he has persuaded his friends five six less than two hundred forty found mr davis time to helping him out mr haslop of course was on parole for murder he had a firearm and he was directing this bank robbery the standard of review really is important the government points to some facts to suggest well maybe a evidence we sort of start the story a trial with him brandishing a firearm they they did later find the firearm in a plastic bag is that bunch of two guns in the car two guns right  again missed the evidence at trial is that mr davis did not have a gun and so right that that that they're caught in the car with two guns afterwards right right but you would you would expect if this is going to be an armed robbery from the outset and there are two guns that mr davis would have had a gun well to handle i mean he's the front guy you know you get the tellers off guard before the guy with a gun and starts the robbery right but i think that the more persuasive way to look at it is to say if there were two guns available to these two men and they had planned in advance that this was going to be an armed robbery it doesn't make sense for one of them to be on armed and the other to only be carrying one fire if if the the point of the firearms is to coerce the tale tellers into handing over money then they ought to both be are now but it works to the bank robbery one of them so and that's a point that the government brings up as they they didn't make a get away together in a in a stolen car that was then discovered after a chase and sort of you're saying they did they didn't go together to the guy we don't know what happened we don't know how they got to the bank i think it's a fair inference to say they arrived in the car together but we don't know what they discussed we don't know whether a firearm was displayed we don't know any of that but the government uses that to say well because they got away together we know that they must have planned this in advance they must have known this this was going to be an armed robbery but those are very actually similar to the facts and outside yes i can look up the you know where in the car the two guns were found after the car chase i don't know i think that they were on a seat so i concede after the robbery mr davis car and that they leave it they can't wait car and there's a chase and they're immediately found with two guns in the car and if they're in plain view you know they would have been obvious to your client and although he didn't carry one into the robbery he you know that that's very powerful evidence that he knew this was going to be an armed robbery and not just a fake right but all of that is after the fact evidence and i i'll look at this one when i sit down my recollection is that the guns were found with the money and it was found in the bags that were used to collect the money so it's not like they were already in those bags when was just sitting in the car obviously mr hasluck carried in a firearm but we don't know we just don't know that and the question on this innocence standard is whether a jury would find beyond a reasonable doubt that there was advance knowledge if if it's just are there inferences the jury could make under sufficiency of the evidence standard i think you know that that's a very difficult hill to climb  the question is beyond a reasonable doubt did the government establish that mr davis said advance knowledge of this firearm do you know anything about their relationship we know that they were in prison together that's take seriously is common sense put the question is not whether he wanted to commit a bank robbery with them he absolutely is guilty of the bank robbery the question is whether he knew that it would be an armed bank robbery and you need evidence of that not just inferences about  probably knew because haslett you know had a had a firearm after the fact the question is before the fact that he had advance knowledge and the government did not prove that they they didn't they maybe felt they didn't have to given the the law right in the tents might get that but the government has an introduce new facts and innocence claim the government can bring in new facts if they think well we didn't present this before but now we have this evidence that is relevant they haven't done that  here so there's just no evidence and that beyond a reasonable doubt standard means something in the innocence thing so i'll reserve the rest of my time for thinking what now has slipped wouldn't haslett have to have told davis that he had a gun oh wise davis wouldn't know what's going to do no i don't think that's true what what davis has been consistent in saying and in this petition was that he believed this was going to be a no robbery well did did haslam tell him that it was just going to be a  and said he wasn't even there and so and so the great we have at it what i would say is you know the fact they met in prison one of the things i've observed this is not the record of course but is this method of committing bank robbery there's a there's a pretty set method when criminals get together and say you know you just go in you say we're robbing place and they give you money that's that's their protocol and then they'll they'll do the silent alarm later there's there's not this need that you and i might perceive of coercing them into giving you money because their protocol is yeah they'd they demand money you give it over you don't well what i just find hard to hard to believe is that haslett would not have  need for the rosemond as a matter of law there's no need then for the roseman decision because if there's there's an armed robbery an armed drug dealing armed anything then under that view the government can come in and say well of course they discussed what was going to happen the first time said i'm going to have a gun this encounter and then they're there would never be a rosemond question because it could be assumed that well they must have met before and so i think the standards a little higher than that i think that we can't use that inference alone that day person present any evidence i don't believe he did i can check that again obviously it was it was ineffective but  into an armed robbery or a drug transaction it is the united states position that that is exactly what mr davis is doing in this case he should have either  folded here what he's trying to do is hedge his bets rosamond basically said that mr davis is required to know in advance that an armed robbery is going to occur in the united states is bound to show that to the jury we are looking at this in a twenty two forty one situation and looking at the facts that were available to the jury and to the magistrate court you're looking at the opinions that were written by the te and also added through the transcript the following facts first and foremost when hayslip entered the bank he entered with mr davis that evidence came from mr anderson who testified that she saw them both walk past her window they came in mr davis went to the first teller and asked for change for a ten dollar bill then mr haye slips stood out pointed a gun and demand money at that point only did mr davis step around the teller stand bring out his plastic bag and ask for money so mr davis did have an opportunity to withdraw from the robbery when mr hay slipped with drew his weapon and demanded money he did not under rosemond he we met the burden necessary he had an opportunity to withdraw and didn't he is not entitle to hedge his bets so he didn't show the teller a note he did not he handed her a ten dollar bill after that time miss ashton forth testified that it's within the reports arms or the transcript listed at the top there are several of the case numbers listed but it says case fifteen dash three six eight one document number twenty two dash two filed on two seven two thousand and seventeen page seventy four lines ten through twelve miss ashton felter testified that mr davis instructed her to go to the vault at no time did the tenth circuit say that mr davis pushed or shabd or score did he just told miss ashley pelter to get into the fault or words to that effect the magistrate judge repeated that and so did the united states in its brief because that's the testimony ms actually felt gave at trial hayslip did order anderson and birch into the vault as has already noted payslip and davis entered and left the bank together also indicative that the plan happened before and they carried it out they gave the same phone number and interestingly that phone number had an area code of five seven three this robbery occurred in kansas that area code is the missouri area code these individuals davis is from springfield missouri payslip is from joplin missouri and those come from pages three sixty and three fifty seven of the transcript so we know that they traveled some distance in order to arrive at this location to commit this robbery it was a gruesome you know that  letter i don't have any direct information he did not testify to go to trial your honor i would be guessing they arrived and left together the crime started again after davis pulled the weapon there were as the court noted two guns that were found after the stolen brown ford probe wrecked on the otel farm two bags the blue bag and the white bag with the money and the two guns were tied together showing that one person or both put it together tied it up and they were making their getaway to get out of the area these individuals were acting in concert the standard again the petition does not meet the threshold requirement unless he persuades the courts that upon receiving proper instructions to the notes are acting recently would have voted to find him guilty beyond a reasonable doubt in this case there's plenty facts for a jury to find that mr davis knew or had an opportunity to win raw from an armed robbery respectfully request that this court upholds a lower court's decision if there are any other questions what i think dooms your case is that if i understand correctly davis did not hand and no to the teller and his teller he just said give me the money knowledge among criminals is as long as you make a demand for money it can be written it can be oral that the tellers are going to comply now the as the government describe it they can see both that not if you walk up to a teller and say give me a thousand dollars she'll just laugh now if you hand or a note which is give me a thousand dollars or i'll shoot you right yes then she'll  comply but he didn't do any of that well he said was you need the money and what he was relying on was the fact that she knew that his companion had a gun there's nothing else there would have been do sure to give him don't i don't think that's true unfortunately it's not testable because no it's not it is true you don't go up to a teller and say give me a thousand dollars you have to have a threat behind and usually the threat is a no but he didn't give her a no he didn't have to because he's standing next to his house that was standing next to him with a drawn gun pointed at another tower rest all you because in my understanding and i can try to find some cases but the the fact that somebody comes up to a towel and says give me a thousand dollars in a demand with nothing else can constitute the crime of bank robbery because there is an implied intimidation or there is an implied or else other cases like that i certainly think so i'll try my best to find one for you i would think i would think the  teller would think he was joking well this this is again i think for teller safety they are trains that somebody somebody does this and you know it's not a joke right then and you just comply you don't take chances you don't say well what are you going to do shoot me right you don't say that you you hand over the money but i'll try to find a case where where they show that the only thing if i can have it now when he says  that just has to tellers right there's so here's what i'll say there's no evidence that they knew that davis was looking to haslop or that he knew the haslop that pulled a gun that there's just not records there is not evidence he's behind the counter right he's already joined the counter right right so he started this robbery prior to the gun being brandished that i thought it was at the same time that it was suggesting coordination right well you know  happened at the same time is there there are a number of inferences that on sufficiency of the evidence review i think the court could say yeah there's enough here for the jury to to make and for a says but there's not evidence beyond a reasonable doubt where he jury would find that mr davis had advance knowledge of this fire it came out at the beginning of the robbery but mr davis had already initiated his part because i understand the schlub standard you've got to show that a reasonable jury would find reasonable doubt on this record that's right that's right and that's assuming reasonable chirps that's right and we think again we don't think that there's enough evidence here to show that advance knowledge and the the last thing that i'll say if i can there is davis didn't present any of this right no that's right because it's it's the government's burden to to prove but he had a different defense because he couldn't