morning good morning and may please the court my name is michael caliph and i want to represent defendant appellant robbie bush unit the court should reverse mr bush units convictions for arson and arson conspiracy with respect to a march two thousand fourteen and february two thousand and fifteen fire with respect to mr bush units march two thousand and fourteen fire arson conviction the government failed to introduce sufficient evidence at trial that seven hundred twenty five university ave engaged in interstate commerce or an activity affecting interstate commerce at the time of that fire the undisputed evidence a trial demonstrated that the building which previously house the ninety nine cent store was vacant plans to go to go and yes your honor in in united states versus iodized this court held that temporarily vacant property can still be in the stream of commerce or an activity affecting interstate commerce so long as there is evidence  this thinking that this this shot this shop is going to be turned into a park your honor but the evidence here a trial however did not establish that there were any there was any active preparation any plans kept the jury infer from the overall sequence of events from two thousand and thirteen to two thousand and fifteen that there was every intent on the part of the owner of this particular property to get back into business and the that was the whole reason for the delay the government's theory whole reason for the for these are our sins more is to stop him from getting back into business and it happened repeatedly over time that's evidence is it not of preparation and intent no your honor that the government appointed post trial to five pieces of evidence that they claim demonstrate that the building was still engaged in interstate commerce first they point to the owner's testimony that he wanted to reopen the store but the owner didn't provide any plans or any arrangements that were actually be being undertaken to bring the store back into the stream of commerce  talking about in march two thousand and fourteen so for the so for the first charge fire second they point to a sign that was posted outside of the building on the day after the fire which they claim shows that the building was under construction at the time in march two thousand and fourteen fire however no witness talked about this construction and its anticipated date for completion or any any other information regarding the supposed construction it fear that if the store opened up in the future it would hurt his business but the subjective fear of the defendant is not relevant to whether actual plans existed by the responsible parties to bring the store back into the stream of commerce did the owner of the shop say he he wanted to open up right away but you know so you have all of these regulations and things you have to comply with and that is causing delay that doesn't mean that the the work of bringing it back he's not trying yes your honor but there has to be evidence at trial and has held that the federal arson statute doesn't cover everybody they can building that may someday be brought into the stream of commerce or every building whose owner desires that some day it will be brought into the stream of commerce  what this circuit requires is that there are there is evidence at trial of sufficiently definite plans to bring that story and including the plant the owners plans in arrangements to bring it into the stream of commerce the store owners desire to you know reopen it right away is has has no bearing on that because he did it well what if the plan to open it right away is delayed in retarded by compliance with trial there was no evidence at trial saying that they were you know having issues complying with with any regulations and any administrative requirements in the owner say he planned to reopen it right away but he was being delayed by compliance  n as as i recall mr buy out testified that he wanted to open it because it is a very good store but but he he you know first and foremost couldn't connect the dates to any of the fires and  secondly he i don't recall any testimony concerning you know any regulations that he was dealing with just well just his the store officially did reopen in january of two thousand and fifteen fact that the store did eventually reopen also doesn't demonstrate the existence of sufficiently definite plans at the time of the march two thousand and fourteen fire and d well under under jones versus united states pass passing or passive connection to interstate commerce is not enough what happened to the building in the future the character of the building in the past has no bearing to the district court was referring to a photograph the photograph of the photograph was in evidence however there was no testimony concerning these work permits the work permits it to the extent that they were work  permits i'm sorry the building they were posted on a on a a board that was that was outside of the building but there was no testimony you know regarding any work part permits frankly during  trial it's it's literally you know a photograph and pieces of paper that are hanging up on on a wooden plank but there is no testimony about you know whether these in fact were work permits what the work permits concerned to show you know the out the outside we didn't object to the photograph and because there was no discussion of the work permits we didn't we didn't have occasion to object introduction of that but they drew can look at the photographs and see pieces of paper the issue of whether these were you know were actually work permits was was never addressed during during trial this this was a a post trial characterization of you know pieces of paper that are out of focus on a  pitcher and so no rational juror could have inferred that you know these pieces of paper that were never talked about during trial work permits and not only work permits work permits that were related to work that was being done to bring seven hundred twenty five university ave back into the stream of commerce morning may it please the court my name is stephanie lake and i'm an assistant united states attorney in the southern district of new york i represent the united states on this appeal and i represented the united states at trial as the jury and judge pauley concluded there was ample evidence of guilt on all four counts presented at trial in this case this is the third time that the defendant has made the very same arguments and they are no more compelling now than they were at the trial in this case this court should uphold the jury's verdict and affirm the defendant's convictions all address very briefly one of the points that the defendant has made about the interstate commerce element in the proof of interstate commerce with respect to the march two thousand and fourteen trial and there was an abundance of proof that there was an intent to return the store to the stream of commerce or direct the court to the case united states versus i a dice which discusses some of the facts that may provide adequate proof of an intent to return currently a store that's not currently in operation to the stream of commerce and i had ice the court looked at the fact that the owner of the movable diner said that he intended to reopen the diner in approximately six months and the fact that it was ready to open and the fact that somebody had gone through the trouble of commissioning an arson of that building here you have far more proof than they had and i advise you're saying that the fact that somebody burn down a burned out building and the answer to that is because they believe that it's going to be reintroduced into the stream of commerce here the victim store was only closed for three months at the time of the march twenty four thousand fire and it only closed because there had already been a fire and i had a movable diner had never been opened before it was purchased a year and a half earlier and had never been opened here and the owner of the store testified that he intended to reopen the store immediately after the after the december tw thirteen fire because it was a very good store it was a profitable store for him and buttressing that is testimony from jonathan martin that the store was coming back together at the time of the march twenty four thousand fire that the defendant told him that he commissioned fire because he was concerned that if the store came back it would damage his business and again the fact that why would somebody burn down a burned out store and last they were concerned about competition and  up at that point where there was a board in front of it and i want to address the work permits that have been discussed the court can view the front of the store at appendix page four twenty two and their permits very clearly displayed on the board in the front of the store saying if you have any complaints about this work site call this number the general contractor for this work site is e m f contracting and then you can see which are a little blurry of the new york city department of work permits that are posted next about there's every indication that this was an active work site at the time of the march two thousand and fourteen fire and it's not speculation to look at that photograph and say that photograph shows that there was an act of planning and preparation to bring the store back and he concluded that it was not i think the clue was an arson and that no gasoline was so with respect to the march two thousand and fourteen fire which is the first fire that was charged here the fire marshal who came to investigate the scene twelve hours after the fire said that he didn't smell any gasoline but the firefighter who was the first person into the building who responded to the fire put out the fire as it was happening testified that he did smell gasoline at the scene of that  thank your honour's going back to united states for the evidence in that case was far stronger than the evidence we had here there was testimony by the owner of the responsible party that the diner was ready to open and in fact there was an actual date april two thousand and two that they were going to open the store that there may be more and there is another case doesn't necessarily mean that lesser amount of evidence is insufficient yes what however the evidence here none of it as stablish is that it was either in interstate commerce or that it was the owners were preparing to bring it back into the  stream of of commerce and it would have been easy if there actually were plans one of the store owners there were two owners that testified one of the managers one of the employees could have testified as to the plants that were actually in place at the time of the march two thousand and fourteen fire and when they planned on reopening similar to what there was testimony concerning in united states for saya dice but there was there was no testimony regarding that and it wasn't their testimony that the time of the second for the two thousand and fourteen for their words star or provisions for sale would be for sale in the in the store at that time new york your honor firefighter michael farrel who was the responding firefighter for that fire to testify that he saw it stopped in the bottom floor  however he wasn't sure if it was historical stock or new stock and specified that there was nothing of value in the store so it wasn't as if it was stock that that was ready for sale it was it was you know literally rubbish going back to to the photograph there are you know the government claims that there was every indication from that photograph that this was an active work site but there's simply no testimony in the record concerning that and even if it was the jury could take an inference that there was construction there was no there was no testimony or evidence to tie that construction into bringing seventeen twenty five university ave back into the stream of commerce and therefore the evidence was insufficient to establish that the store was in an interstate commerce at the time of that fire for the same reasons that  government failed to establish that the march two thousand and fourteen fire violated the federal arson statue it's conspiracy count regarding that fire must also fail the government government would have been required to prove either that  the building was in interstate commerce which for the reasons i stated earlier it was not or that one of the conspirators believed that it was engaged in interstate commerce and there was no evidence that mr diaz believed it mr martin test inconsistent at best with respect to whether he thought the building was going to reopen and all the testimony concerning mr bush units belief was that his bill suppose a belief that if the store reopened in the future it would hurt his business but there is no testimony that he actually believed at the time that it was going to reopen thank you thank your decision