like to start out with stating that the government has characterized the arguments in this case as the defendant's arguing in favor of a claim of them of the prophecy as to my client mr trad he possessed a promissory note and the amount of seventy eight thousand dollars which represented money that he put into the custody or control of mr murdoch as an investment and he had every right to get that money back and by virtue of having a promissory note aperture force it's always someone always you money  all stop and you tell us exactly why this is not a violation of federal absolutely look at and that is a supreme court of the united states case you have to go over twelve seventy one joe's words refer to violence one that furthers a plant or purpose to affect commerce by robbery or extortion or to violence to that refer that furthers a platter purpose simply to fact commers we believe the former more restrictive reading the text what that case doesn't a nutshell is it supports our position because if in this case government had misstated and they've pointed out in the record that indeed we in dany this is william only not to read and he told mr sturgis that he had brought guns with him there was nothing testify that the fence intended to scare the victims into a green to perform a wire transfer of money and quote and the government i don't believe has any support in the record for that statement now has a fifty caliber and it's twenty two in her vehicle william dany has a thirty eight and a forty four magnum now there is no discussion which states about about farms that treat any broth there's not there's nothing in the record whatsoever but one portly we have a judgment of acquittal and that language that the reason the court granted judgment of acquittal on count for carrying out the three the crimes in counts one two and three what how can it be then that there are even relevant the government says well they were going to be used  to commit the crime the court has acquitted on that count more so as to retain e she was never charged with a firearm charge there is no statement attributed to her with respect the firearms she's got in evidence against sort of course all the defendants on the conspiracy theory fifty caliber and the twenty two so how can it be said that its relevance and b even if relevant the prejudice does not outweigh probative value not i realize my task is to stretch another court that's the standard of review and that's that's not an easy task but it's not insurmountable and here we've got fact that the government did apparently overlook an issue that he raised in his opening brief relates to the jury instructions regarding the effect on interstate commerce in the briefing mr trent did argue that the district court erred instructing on interstate commerce when the district court told the jury that it's not necessary that the government prove that the defendants intended to affect commerce government only needs to prove that the conduct would have had some effect on commerce define your thinking then they aren't really focusing on the interstate commerce aspect they're focusing more on whether or not it was wrongful i understand that he made that point in arguments today your honor but the briefing did raise the issue when the government did overlook that issue so the government did not address it in its reply brief and i just want to point out to your honor's this morning there's far as that issue goes in the defense one of the defense posed instructions the one that was cited in the government's excerpts of record at page one ninety it was the defense that actually requested that language in the proposed instruction and in addition to that i believe according to our united states versus nelson this court has held that that languages in fact correct statement of the law  moving on to the argument concerning the end is decision and whether or not the government failed in proving that if the defendant's conduct in this case was wrongful the government as stated in its brief disagrees with the defendant's position the government does believe that the element of wrongfulness was established in this case because it was shown that the defendants intended to use force or fear of force or violence in order to induce mr murdoch to give money over to the defendant's opposing counsel the argument that there was a federal crime of the government and the first place the government doesn't dispute that the defendants may have had some legitimate claim to some of the money that the government believes they were going to attempt to extort more murder you know your honor that was that's the next point of my position which is that even if the defendants did have some entitlement to some of the property that they were seeking as the saying goes you such a claim of rights issue exists in the context of a labor management dispute and when you look at facts similar to those before us which involve situations other than a  at least can avoid federal prosecution even when they use force or violence to seek legitimate union objectives i think the issue in your honor's hypothetical would be whether recognizing the union is a  legitimate union objective and i don't know the answer to that question but in any men's they used force i believe in and many of the force was using rifles to shoot out power transformers during the course of a strike where they were seeking higher wages that the government also believes that to some extent the language cited by defense from the supreme court is incorrect  language related to wrongful doesn't lose all means if the defendant didn't have or if the defendants did have rather a claim of right to the property they were seeking i think this case provides a prime example of that if you look to the discussion concerning the jury instructions in this case the defense requested a self defense instruction the court gave the self defense instruction and the reason for that was the defense argued that they believe that the use of force that occurred in this case was not wrongful because it was done in self defense so the government believes that having the language wrong full in addition to case scheidler versus now which was cited by the defense the government does not believe there's a flexible defense case in scheidler vs now the issue before the supreme court in the issue that was resolved by the supreme court concern what the definition of property is for the purposes of the taking required by a hobbs act extortion and so the language there didn't have anything at all to do very choosey that decision didn't have anything at all to do with whether or not the defendants had a claim of right to the property that they were sleeping on the four hundred three issue that was argued by the defense regarding the firearms one point that i wanted to clarify regarding the reply brief was that in the flaw in the reply brief defense argued that the government made false claims or relied on false expectations when it represented the expected testimony from the cooperator to the district court during the motion and  that was made in the reply brief the record does not contain it but i can represent to the court that the representations made in the motion in limine a were based on pretrial interviews with the  because the rule twenty nine motion was granted at the conclusion of the first trial the significant difference between the first trial and the second trial is that mr stitch the cooperator testified at the second trial he did not testify at the first regarding the sequence of events on the day that the path and mr stitch testified that when they found mr murdoch's car and in a saw or received a report at least that mr murdoch was leaving the law offices that it out point mr trial the government introduced the evidence of the firearms as evidence of the defendant's intent on the remaining counts which would be the conspiracy and the attempted extortion and not intend to use the guns w evidence in both trials regarding the intent of the defendants was the same its relevance regarding the issue of intent was the same i think your honour's correct about that i think that your argument is if i'm wrong but there's a difference between proof beyond a reasonable doubt and relevance which just passed from tendency to make a fact more more likely to occur than not yes your honor that that is correct and in a related context i believe this court although i don't have a case off the top of my head to cite but i believe this court has held in a related context that in the four or four be a rina even if a defendant had been acquitted of the prior acts that the government wants to introduce under four or four b the south doesn't automatically preclude its admission because as your honor points out there is a difference between proof beyond a reasonable doubt and the level of proof necessary to make a piece of evidence relevant here in the second trial the defendant was not charged with using the firearms the government introduced the firearms as relevant evidence to prove his intent to commit the extortion and the government does not believe that the concept of race judicata based on the earlier rule twenty nine motion prevents the government from using that evidence the government does believe that the evidence was sufficient to establish that he used the guns certainly in light of the testimony from the cooperator that the trial court did not have before it at the first trial when it granted the rule twenty nine motion the evidence the government believes was sufficient to make a threshold relevant to finding that the defendant possessed the guns and that the defendant intended to use the guns in some i also even though it hasn't been argued i just wanted to touch briefly upon the speedy trial issue as well be government believes that there are four separate grounds upon which  this court could affirm the district court's denial of the defense motion to dismiss on speedy trial grounds three of those relate to the pleadings that were filed by the defense to fit government believes provide for automatic exclusion of time and the fourth ground is the district court's excludable time order itself which although it was answered a few days after the expiration of the seventy days under the analysis of excludable time findings given that there were three applications i think they were titled pending before the court during the relevant time period and each one of those applications alone would provide for sufficient excludable time the government believes that the district court's ruling on the speedy trial issue should be affirmed and on the chevy issue the government believes that  excludable time findings themselves are sufficient to justify the delay in light of the fact that the defendants in this case have never relied upon their speedy trial rights a a matter of fact in terms of the sequence of events in this case the defense filed a motion to dismiss claiming a violation of their speedy trial rights and then i believe it was a week or two after that filed yet another motion to continue the defense has never contested at all the excludable time findings themselves in fact they stipulated to those findings and now we're simply trying to rely on the timing of the submission of the order as a basis to couple of points first of all we're not arguing at least i'm not arguing on behalf of mr arnold to the extent that the other defendants and join my argument we're not arguing that the evidence was insufficient or that the government could not have proved its case the question before the court is whether the jury instruction which the district court modified from the ninth circuit had an instruction was adequate the question of intent the ultimate question of intent is a factual one for the jury and the jury instruction of course provided that the jury could make a finding that the defense intent was wrongful yes they found that the defendants either attempted you know the usual wanted list and attempted or intended to use force or threat of fo and the problem with that is that turns on the statutory construction of the harms act which essentially renders the trial wrongful meaningless or redundant because as the supreme court pointed out and th specific crime there was a general intent instruction on you know knowingly and willfully the standard instruction but the instruction that was requested sad second the defendant acted with the intent to obtain the property that the defendant knew he was not  ralston you brought up the issue of whether the defendants were demanding more than they were entitle to but yeah that's a factual question for that which would have been fair for the jury to resolve but in any event it was very little evidence that in fact the defendants were seeking any more than what they were entitled to the government relied on a spreadsheet was which was prepared by my client and it did total up to about one million dollars i think but first of all well to begin with the spread sheet was on behalf of  so at a minimum there was a significant question of fact for the jury to resolve regarding whether the defendant's intention was wrongful all of that evidence went to the jury all of the evidence if you like there was no instruction that they told the jury it is not unlimited it has a limit that's a very dim in the us interstate commerce requirement and it's limited by the what really limits it is the defendants intent and the supreme court in the only case that the supreme court has decided on this particular if you look at the evidence all of the the this discussion about what to do mr miller comes in at the very last minute he's in a hotel room with the othe handgun which i don't know how many inches it is but when i hold out in front of the jury that's cries out for reversal one rule for zero three three they fail to point out with a court indicated and it's attached it's part of the motion for under rule for three and a stock at number three ninety three and it begins at page two it's not in the exit of record but it's a motion in the record and the defendant's quote exactly what the court said as to build any why bill daley was acquitted and it wasn't some close call as to reasonable doubt he talks about how bill daley had firearms all his life he used them in the army was on this rifle expert rifle team he was an avid hunter and he had absolutely no intention of using those he had every opportunity using during that scuffle he could have walked over the car picked up a firearm and used it in the court points all this out so this isn't some close case of of well disgusting now two roman numeral two i was discussing now three which is the latest schneider the now they came out on to twenty six zero six thank you thank you t