mr know had never participated in a robbery before there was no evidence of that he's never been convicted of that the government has on this appeal try to argue that mr no was a crew member as if that  case is not like a mafia case and that's critical to understand i pointed out in the record when they refer to mr know they're not necessarily referring to him as a crew member he's excluded from that definition was even identified as a crew member by the however if that testimony was believed by the jury there was affirmative testimony in the record that he was yes as to that point and then you go on to the next conversation where crew members used the term crew member is used and the same  overarching case it doesn't have that much significance are you drawing it distinction between a crew member who would have worked for this illegal organization enterprise criminal conspiracy or whatever you are calling for the whole portland to san jose and sold the stolen chips i'd like to yes that's my director saying that is insufficient evidence from which a reasonable finder of fact could conclude that he knowingly joined the conspiracy to commit hobbs act robbery absolutely and finally i do not believe the evidence at all supports the idea that he stole a single store i s not include all the pages i should have in the excerpt of rush but i would ask the court to look at pages twenty to thirty two of the march twenty seventh two thousand and one of the transcript march twenty twenty seven point seven so now let's go back to the robbery and what what is that generally described this is that this is a woman named mr kumar who says i bought chips from fox run about thirty to think i'm just being pollyannish perhaps is the word but the problem that i have is with that scenario is the first i agree that it's a problem that he was at the restaurant me does not mean that he knew that they were going to rob anything that is get the chips through a robbery and that's the problem i have with the have sex what do you think a reasonable compensation for driving a truck load from portland or san happens to be the primary name defended so i don't want to hide that particular fact but he didn't know the change the chips fall even in plainfield or as a site i know government is free but what i think is critical is there were two different trucks one remember it was a crew member yes and then mistress trius asked who was paid money and he starts running through the names of people in fact some people got one hundred sixty thousand some people got one hundred thousand some people got fifty thousand and stolen commodity i want you to rule first then mr no did not know that there was a robbery that took place which did not conspire to commit i am not the finder of fact i can't act what i have to do is look at the record on the facts that you would use that trial and answer the question if the supreme court laid out in jackson the reasonable fact finder test and you really are asking us to say that even if we take all the facts in the record in the light most favorable to the government no reasonable finder of fact could have inferred that he knew the chips were stolen and i have a problem with that given the circumstances under which he acquired and disposed of the chips i  regularly where there are sufficient number of cases to indicate that the court regularly refuse and sets aside for number two i do not want to spend a lot of i mean i could are we could argue i have a problem and i think the dollars for that truck and if you look at the government's excerpt of record at page two thirty eight mr no finance the entirety of the truck so the purchase price was thirteen it was a finance charge of a thousand he finance and now then i'm left with he was important i do have the argument of course that he was sealed off he did not see eight or nine people i think truck stop at the rest stop certainly not before the robbery and indeed not even after the robbery and that's why i'm comfortable in that he could have been a truck stop for a lot of different reasons he could have even understood he was getting chips but that does not mean he knew that that night on october forms to find overt acts in furtherance of a conspiracy yes your honor and they left it blank they left it like a slave like many other ones blanky which considering the evidence in this case it's hard to believe actually that they wouldn't have found them they had to do with the in prior robberies and burglaries but they didn't go they didn't say yes to all of them the second is the payment of the truck now the evidence is not entirely consistent i think it's a fair inference based on the documents that the jury could have found that in fact it was paid by cash there are two conflicting documents in that package but that doesn't really matter what the point was that the testimony was that either looks like from the documents that it was to actually set that up for him of course we have all the very suspicious circumstances surrounding the robbery itself like it took place in the wee hours of the night  involves all these transfers of vans and trucks but even if all that were is just fish and for the jury to find that mr no was aware that the that there was a robbery we don't have the truck being delivered back to the rest they were just in the back of his truck as to neg attack that's just that's after the fact of course but that it would be fair for the jury to infer some knowledge by the fact that he was there there is no testimony was in vietnam mr no closed the business which connotes some level of authority there and finally the fact that mr no was present when the chips were unloaded at the relative know about this robbery from that final destination where he drove the truck to the final destination he did your honor and then he stayed there and then the van arise so he was he was there throughout that process that also and what the jury had to find was that it was reasonably foreseeable for mr know to know that this was an armed robbery or that guns would be used were used as a  natural consequence of this robbery and there are a couple of factors that the jury could base this on first of all of the you can't look at this alone they can look at the nature of the offense this was a robbery and it was a robbery burger is going to be largely just it's just one one factor your honor that it was it's going to be a truckload and maybe more so materiel second that this is a  chance the fact that there isn't at a minimum a security guard after all we're talking about a manufacturing plant someone that makes chips and makes enough that it's worth their while to go through this very elaborate plan to go to portland and steal them so i think it would be a fair inference for the jury and reasonably foreseeable to mr know to assume that again at a minimum there's a security guard and they're not going to leave to chance the fact that man or woman is the security guard is not going to have to be sort of you and you would have to use a gun to do that this court in other contexts has certainly looked at the likelihood of of guns in bank robberies for example and when you even go back as far as the terry tapes didn't we say in the bank robbery case that it's not enough for the for the finder of fact or the district judge you're human hands to say well it's a it's a brain and therefore we know that guns are sometimes used to rob brain that's correct and i'm not arguing that we just should look at the nature of the offense i think it's one factor but not just that i think you have to look at the scope of this crime i think you have to look at how well planned it was in the coordination involved and the fact again that that these people who were doing this are not going to leave to chance just one factor that can throw the  thing that bothers me very candidly is that i think as judges that we have to be very careful in multis the friend and criminal prosecution of the little fish souped up and with the big fish and that's the same rules evidence to establish all the elements and the fans that have been met with regard to the little fish if we take the evidence in the light most favorable to the government you haven't got any evidence that mr no was involved in any of the elaborate planning that obviously occurred and we do have the fact of the very suspicious transfer of the cargo and the midnight rest stop but  and i guess when the fact that he stayed at the same motel where some of the other robbery members and i think i read somewhere in one of your briefs that they all ended up for breakfast or something and they weren't supposed to be seen that would support the jury's conclusion that he knew all about the takeover takedown robbery and your honor i certainly can't offer any other specific evidence that he had actual knowledge of these guns there is no evidence of that now you know as to the planning it is true that he wasn't that there was no evidence that he was that those meetings and in fact at one point just to try and said he wasn't specific meaning when asked but as the district court said certainly he was involved in some planning he would have been able to do what he did if someone had given him instructions and he did you know quite a bit about the truck he shows up in portland he stays in a motel with others so somehow he's getting instructions obviously not from probably from just doesn't so he's involved in some planning but the argument really has to be purely a can fortune one that given the circumstances of this particular crime it was reasonably foreseeable now  jury but that's where i'm having the hard part is is it reasonable to for c s from his conduct after the fact how his came into possession of the chip i guess would have less of a problem if the government could have shown that this guy had joined the conspiracy earlier in the process  and maybe it's enough that he was told go to portland stay at this motel don't associate with other vietnamese or asian appearing people that you run into in the restaurant and meet us at four am in the stop south of portland but beyond that there isn't much there right your honor i agree it would have been easier for me to be up here saying he knew that there were a god he knew that there were guns because he went to some of the meetings where everyone else did and they talked about this and so we're really relying on the way this crime was carried out the care a bad it's the scope of it to say that it was reasonable as to the to the little fish getting caught all that he would be sued but that's not my no no the suit and recovered against and that's where you and i would have a dispute at least because i do not think it's reasonably foreseeable for mr no to be held criminally responsible when most of the in the middle of the night it is not foreseeable that any guards could be at any particular place and if you at the place they didn't even tell him where they were going to rob then there's no it's not reasonably foreseeable that you know the president is going to transport