good morning honors may please the court many researchers in the united states and i'll keep an eye on my own clock but make every effort to preserve about five minutes of time for a battle the evidence presented during the trial in this case including testimony from three cooperat witnesses proved that mr henning was a member of a violent robbery crew who was committing a string of armed robberies throughout los angeles area and one of those robberies was the delano robbery and the evidence in connection with that robbery proved that mr henning attended two separate planning meetings on two different days the day of the aborted robbery february th and the day of the successful robbery three days later on february th and i'm both days he met in the same park with the same people and in both days immediately after those meetings he got in the car in his own car and he drove himself down to torrance california which is where the malls located to serve as a back up getaway driver and on the day of the successful robbery he was in regular communication with the leaders and organizers m johnson and miserable forest in the fifteen minutes before in the fifteen minutes after the robbery before he then left the area at the same time of all of his coconspirator assume for just purposes of discussion that that's sufficient evidence to make the judge watched the trial saw the witnesses heard the testimony tell me why we should find if the district court abused its discretion in the conditional grant of a new trial now the government understands that the standard of course is much more deferential to district court i just said that right here and there are legal errors that the district court committed that so undermined the analysis that it that there is a significant risk that mr that the district court did in fact abuses discretion by committing an error of law and the that infected the judgment of acquittal in this case in fact in the district courts analysis of the rule thirty nine or thirty three motion and that was the evidence for the refusal to consider evidence relating to the acquitted counts there's absolutely no support for the idea that evidence that relates to acquit counts cannot possibly became considered an informant analysis of conviction on r and now so the propriety of conviction on counts of conviction and i think more significantly the district court refused to consider evidence relating to robberies and events that were not specifically p the indictment and this court's law is quite clear that the government is not required to plead all of its evidence an indictment in order to offer proof or evidence during trial to prove out the full scope of the conspiracy and were there were issues here when the that would give some pause to its somebody including the judge it looks like you know you had the whole gang of people here but m or his participation was somewhat i guess questionable didn't have all the evidence against him that you had against some of the other gang members i think for example his name and number were not written on the piece of paper listing the robbery participants found in the coconspirators car there's no footage of his car in the parking lot of the mall around the time of the robbery there was no evidence that mr henning spoke at either of the of the meetings i mean it seems like there were some there was some evidence that the district court found disconcerting he saw all the testimony he heard all of the witnesses  why is this in a piece of discretion so again i think the abuse of discretion issue is separate from the from the rule twenty nine issue on the abuse of discretion or again the government understands that that the court can consider that conceding then on the motion for new trial no your honor the government's position is that there were legal errors that should cause this court to at least ask the district court to re evaluate its rule thirty three grand didn't the judge in the nation of a exercising my discretion in the interests of justice to order a new trial i'm just not sure why i should import your judgment for of acquittal arguments into your new trial of discretion i think the interest that question is there are arguments on what evidence as a matter of law a jury can consider and reaching a verdict applies with equal force you don't thirty three contact i take your point i am agreeing with you for purposes of argument that the jury could consider all the evidence the judge having looked at all the evidence i think impliedly us i don't find it that strong so i'd like to see a new trial we need for some justice what's wrong with that of the just what may do exactly that if it's given the opportunity to reconsider its rule thirty that i know what the standard is for a new trial and i think this evidence warrants it why why shouldn't we imply that in to read that into what the judge said i think because what the district court said was in case i'm wrong about whether the evidence is a matter of law is insufficient i'm conditionally granting this rule thirty three when the just a court said that it incorporated into that conclusion its analysis of the law that it should be applying and what evidence to consider the district court seems to indicate it understands i mean i know he did this in a footnote but you know in that footnote he says a motion for new trial is and he quotes pimentel directed to the discretion of the district judge and should be granted only in exceptional cases such as where despite the abstract sufficiency of the evidence to sustain the verdict the evidence preponderate sufficiently heavily against the verdict that a serious miscarriage of justice may have occurred he's also citing united states versus alston so it seems that he has a very clear understanding of the standard and he's making a determination in light of that standard now i understand that your are green on the motion for acquittal that may have been flawed but seems like you're arguing that he didn't really understand what he needed to do and it was problematic from the spill over of the motion for acquittal but i'm just trying to based on what i see here it seems like he had a clear understanding so he had serious concerns about mr henning conviction that footnote does correctly articulate the rule thirty three standard that the district has to apply the government does not does not take any issue with that again the issue is just because a district court didn't explain its reasoning and its rationale this court should assume that the district court applied the exact same  saying because the court said what the right standard was you're asking us to assume it applied the wrong standard because it entered a judgment of acquittal and that's what i'm having difficulty if you want to argue to us that the court just abused its discretion in thinking that there was a miscarriage of justice or that the evidence preponderate or the other way i don't understand the argument but i don't understand the argument that we should import error into an analysis where the district court stated the right standard so this court stated the right standard but it also stated set standards separate and apart from its articulation what the rule thirty three dollars standard is and those standards were i'm not allowed to consider evidence that relates to counts that for which acquittal was was handed down and i'm not allowed to consider evidence relating to i'm robberies that weren't specifically pleaded in the indictment now that's two legal errors and those two legal errors carried out throughout the course entire analysis now of course they haven't position is is also frankly that the evidence here was not made that's what i've been waiting for from you tell me why the evidence made what the judge did an abuse of discretion i think what the evidence and made what the court did in abuse of discretion is the frankly quite strong evidence of the role that mr henning played in this particular robbery he was at again to planning meetings relating to the del arm robbery immediately after those two planning meetings he twice and self into his own car and he took affirmative steps to drive himself down to the torrance mall and during that time that he was in the area of the torrance mall mall which is in torrance california during that time he was in really regular communication with mr forrester mr johnson who were the primary leaders in organizers and those phone calls went just to you know they were they were regular they were pete they weren't just mr h right that's the the basis for the evidence that you're saying exists yes it's that the three accomplices he had some real concerns in the jury may not have but if he had some real concerns about what was kind of going on and how mr henning got caught up in this isn't it fair for him to say i have real concerns that there may be a serious miscarriage of justice for him going forward and so i mean the evidence to rely on is the evidence that a judge could question yes it is it is evidence that a judge and it's discretion could question and again we we understand that the standard is much more deferential to the district court we may diverge with the district court's analysis of whether the evidence  sufficiently preponderance against the verdict to make it a concern that there might have been a serious miscarriage of justice and i do want to point to two pieces of evidence relating to the phone calls around the time of the dhamma robbery which the district court really didn't give sufficient attention to morning your honor my name is void and i represent just i'm having they just occurred in this case an experience just a court judge said i've had a lot of cases but i've never had the evidence be so thin based on that the district court correctly acquitted mr henning on the three judgment of acquittal de novo right that's correct as as much as i respect a district judge and experience doesn't matter we look at the evidence and see whether it meets the sufficiency standard utilizing at the evidence favorable to the government your guys at two meetings he drives to the scene the st time he drives to the scene of the robbery the nd time he goes in the area the robbery somebody says a coconspirator to be sure maybe not to be believe he was the emergency backup driver there's a bunch of phone calls back and forth between your guy and the conspirators isn't that enough for you to meet the sufficiency the evidence stand play why short what they needed was a court had some evidence that would support mr henning actually actively participating the furthest that the court thought the evidence supported was something that was consistent with but however that mr having said nothing at all i understand i mean it just to me see if i'm trying to take the evidence in the light was favorable to the government when we get back to your new trial argument those are all great arguments the nd time he drives to the area of the robbery and communicates with the coconspirators during the robbery so if i could address that point yes so st off it's whether he was in the area of the robbery and i think that overstates what agent boles testimony actually was how far away was he from the robber to a number that the government attributed to mr henning so why isn't why isn't that even if you put aside his presence in the area the nd time why isn't that enough to to get past the relatively low bar of sufficiency because  st he was reachable to the only evidence of calls is between numbers that were attributed to johnson and the forest so the individual who was the can the cooperate or who drove the getaway car had a list of the people who were involved in their phone number don't mind i want to give you your opportunity on the motion for acquittal but i would like to ask you about the motion for new trial because even though you know the district court you know dropped the footnote here is that enough in doing it in a footnote i think that maybe what was reese is talking about in terms of a not a robust analysis and do we need more and then also i mean the law is clear in fact it states a motion for new trial should only be done in exceptional cases and is this one of those exceptional cases and if you have any case cases that tell me why this is i may not be a lot of cases and i think that the court had looked for cases and didn't find much i think it's comparable to the knowing presence cases both in this circuit and in others but i think it is fair to say that all of his assessment of the evidence applies equally within the new trial contact or if you see that's the problem did you or your  colleague puts me into the judge says i don't think this evidence was admissible are sufficiently robust enough to reach a relatively low standard to get to the jury so how do i know the judge separately  whether or not the evidence if it misses a bore if sufficient was enough to was still somehow fell below the miscarriage of justice that we have a footnote she doesn't say you have to make a separate analysis but that's the concerning part about this misstates or is is a misplaced concern i think the court here was very concerned i mean he expressed again and again his concern with health in the evidence was against mr henning and i think there are as we've set forth with all  discretion going to the motion for acquittal there really were extraordinary concerns about how thin the evidence was against him and the government's arguments to the contrary depend on the lighting differences in what was actually said in the testimony for example saying that mr forrest and mr johnson were dispatchers that they were in the role of coordinating connecting mr henning with others when in fact when they did the testimony about what roles they played never mentioned anything about having them be dispatchers was exposed to exhibits that had not they were not part of evidence i think that's a legitimate concern another reason to affirm the conditional grant of a new trial here because when we were looking at the evidence against mr henning it consisted of three things it consisted of the cooperators testimony which he doesn't have to credit on a motion for a new trial it consisted of phone records which again required inference upon inference to attribute them to mr hunt and to assume something about content that i witness or any defendant in any particular place that at best you could say they were within you know one or two mile range of particular area which when you're talking about someone being an emergency getaway driver it matters how close they are it matters that you can reach them in case of emergency was somebody testified that he was the emergency backup driver did and they did but they also testified that it was somebody who had come in after the robbery would be able to help and they never testified for example that mr forrester mr johnson were intended to be the dispatcher who w coordinate with mr henning they testified that they didn't have mr henning's phone number they didn't know how to reach him one of them to cooperate said i didn't have it in my contacts i didn't have it on the list well i think i'm not a bastard stephen testified that during the nd meeting another  because live for us told me so again most of the evidence here is what's being told it's sort of like a game of telephone it's through several links none of this is about mr henning his own statements none of it really is about his own actions and so here given the fact that some of the demonstrative that went back were about the cell phone location and they the district court of the time when it realized that these are going back said this is highly prejudicial this is really problematic and the government tries to distinguish that by saying yes but look  do you have any cases that say hey this is this is not an exceptional case this is not an exceptional case i think that the cases that most strongly support our argument that there is evidence of intentional participation sufficient to survive the rule for three standard or frankly the rule of the mere presence line of authority that predates novels and even in all of those cases the evidence the evidence was such that you could still infer that mr henning in this extraordinary case tell us tell us there's a case out there that helps us help my convince us that this is not the extraordinary case this is a case in which the judge shouldn't i think i think killington is a good case there which which case i think i'm more referring to just the general application of this article ation of the standard in that case and the general articulation of the standard there is that although the court is not obliged to view the evidence the light most favorable to the verdict it's free to weigh the evidence and evaluate for itself the credibility of the witness case the district court did not ever say that it found that the cooperate in witnesses to be incredible and your position is based on the absence of some specific findings by the district judges yes and i think i do want alternative fight he had kind of laid out all of his concerns regarding the move in his motion to quibble for acquittal and then he basically says all in the alternative basically everything i've said here i mean that's what we can certainly you know infer from what he's written here that all supports goes to my decision in the alternative for a motion for a new trial and so on just trying to figure out why that's not sufficient so i say i'm out of time and i was soon to answer your question i want to talk about the three pieces of evidence that both the district court and mr henning pointed to as being so indicative of innocence that they would preclude the jury from drawing any cold beverages ok i would say i would say the best one for us is this idea  that that mr johnson and mr the forest could not possibly have coordinated mr henning with the other individuals who were in the store and they were in this were during actually carrying out the robbery now of course we have evidence that they're the primary organizers we have evidence that they're actually in contact with the people who are the drop off person the getaway driver and then you have testimony from one of those cooperate in witnesses and this is it g e r three hundred and thirty eight when it when that cooperating witness was pressed on this issue on the issue of not having somebody else's contact information and a quote it says you act like as if i was the one that was setting it up just because i can't contact the person doesn't mean the person can't be next to me now that is a person who was involved in this robbery saying look these people i this the fact that i didn't have his phone number was not an impediment to him serving the role that he was supposed to play in this robbery and just because we might have preferred if we were planning it we would have had their direct contact information doesn't mean that the way that they planned this robbery precludes a conviction if there's no further questions thank you miss reese those words very much appreciate your argument presentations here today the case of united states of america versus justice marcus any submitted