or the next case on the calendar united states versus r morning again here representing mr floyd so what we're asking the court to do is going to allow him to withdraw his plea he has from our position been committed a state crime of robbery he's now sitting in the federal not asking for acquittal ok we're not saying the law is such that forcing somebody to take money out of an a t m is not bank robbery but more on point not hobbs act robbery we're not claim of legal innocence and i submit a credible claim of legal innocence obviously a frozen for the list claim wouldn't get you anywhere so the question is was there plainly a credible claim of legal innocence and unless your honour's think that the fifth circuit is always unreasonable  you know that this circuit has held this is not a federal crime and i think she should point is really more about the question of the plain arabic is that this issue that the crime did not involve interstate commerce was not raised below so it seems the issue about interstate commerce and these a t m robbers the error is that there was plainly a credible claim of legal innocence and the reason that it is plainly a credible claim of legal innocence is that as far as the fi circuit goes this isn't a federal crime and the definition of credible claim is not made correct which is why we're stuck in plainer if it was made sense so really then if we do what you want then what should do is is what we should caution those in similar situations to your client is don't raise the claim at the outset then later on say you are legally innocent believe me i would rather he had raised the claim because if he had raised the claim and said i am innocent because this didn't affect interstate commerce then i'd be squarely up in front of your honor's asking the substantive question did this impacts you know did this impact interstate commerce and i would be even more squarely in front of you on that front so i don't think that would be the lesson to be taking from and so i struggle with that and clearly oftentimes we're trying to figure out on your favor in terms of the plane being able to make the claim do we go ahead and then and have to decide what is i mean often you don't reach out to go ahead and make that decision absent a developed factual record and so the notion is that he be able to ask you this an argument that has not been made because i looked at these various cases the question debtor to the to the account holder that's the nature of banking right and so the bank always owes money to that person and then when the person because banks borrow the money from the person to go  to other people etc etc so they are a a debtor to the to the to the deposit and if there is a debtor to the deposit or isn't every time you take money out of your account you're basically calling on that debt from the bank and then the bank honors that  to the extent that that you're you're requesting the money to be withdrawn in terms of property law and so and so therefore it does i don't see any way in which you're not robbing the bank you're not citibank and so citibank treated this as an unauthorized withdrawal and therefore paid the money to the victim and then therefore was the recipient of the restitution and the fact that the bank takes that position whether out of customer relations or whyever else it does isn't going to legally determine the underlying question that judge walker's framed correctly which is who are you robbing here and i don't what about the electronic funds transfer act which requires banks to reimburse customers for unauthorized electronic fine transfers and so if their customer relations position is based on the act then it is based on the act i saw the reference to that in some of the other decisions i guess that i simplistically think that when i go to an a t m and take money out the minute it hits my hand it's my money and maybe you know held by the bank in whatever capacity it's held but simplistically and hopefully correctly legally it's my money i'm taking my money back and once it hits my hand this is what the fifth circuit when had a lot of once it hits my hand it's my money and if they decide to take it that second a day later and when it's in my wallet or we're forced him to go to the a t m to take seconds earlier and you see him walking out boom that's a state robbery here what the government is going to rely upon and has relied upon in this argument says well you force the withdrawal but in burton the individual forced the which are all and i  e commerce and they went ahead and relied on the fact that well they had a wealthy clientele etc etc in that case the robbers went ahead and took the gentleman's a t m and went and were instructed to i don't know that it's not clear from the opinion were instructed to go to the a t m and take as much cash out as you can and when this circuit was struggling with are we going to find under products that are we're going to find that this affects interstate commerce sufficiently they don't mention the a t m at all so this notion of a t m withdrawal be in effect interstate commerce given the biggest nature of sorry i know that one but you know they didn't mention it and they didn't mention it and it was a clear fact that was there and yes maybe to be an oversight but i do think it reinforces what what i cited in kane or what we saw in burton which is that where are we going to draw the line here in terms of when is it stealing somebodies money as opposed to stealing the bank's money and our position is that this wasn't there thank you very much  morning may please the court frank belsen all over the united states and i was counsel below in this matter judge did not commit plain error or any error because as the court noted a robbery committed like this one where the victim is forced to engage in a transaction and to withdraw from a citibank and national bank branch has an inherent effect on interstate commerce through the withdrawal of funds from that bank i understand your your your argument but you've got the as as as your adversary points out you've got the fifth circuit decision in burden why should we follow your honor given the procedural history given the way this comes before the court with the plain error standard the fact that there is the burton decision and then the the contrary mccarter in durham decisions in the seventh circuit mean the judge act in could not have committed a clear or obvious error here there is no clear law on that particular issue whether a robbery like this is robbery of the bank itself i don't think there's any dispute robbing citibank affects parata commerce was still affected in a number of ways discussed in that case including that it targeted the assets of an interstate business so citibank was deprived of nine hundred dollars that this victim was forced to do you know think there may be scenarios depending on how much money and depending on what the robber knew about the person who was making withdraw conceivably there's there's a object in there but certainly that is a very different factual scenario had this victim  simp he made his withdraw and walked back out there would have to be a different factual premise i think for for the effect on commerce here he was actually believing he was at gunpoint taking to the bank to get money out of the bank and so part of the robbery as it was conceived by these robbers was to induce an interest a transaction with an interstate entity and to take that money from the bank additionally with respect to the plain error standard cannot show that any alleged error prejudicially affected his substantial rights or in any way impugns the fairness or integrity of judicial proceedings here other than this novel legal question being raised for the first time on appeal counsel the time forced mr rose to take the plea and there was a full hearing on that counsel at the time testify that hearing a judge acting made factual findings with respect to the voluntariness of the plea that's not being pursued here i understand your adversary to say error standard the idea that any arguable legal claim could then be raised in that if the judge the district judge didn't come up with it on his own of illegal claim it's an it's a claim of innocence  suppose a person were engaged in money laundering but they used the wrong prong of the money laundering statute the international prong versus the the domestic problem and so therefore the person was convicted of really repealed i think if there were clear laws that the statute did not reach the conduct in question or there were clear laws they could make it you could make an argument so that what your point is is that you can argue innocence but it depends upon how strong your argument is as to whether it's you got to make it and you depends on the clarity in the obviousness of the legal innocence and here given an existing circuit split and no binding precedent on the issue there is no clear and obvious error and again specifically where this circuit split exists is only with respect to two bank robbery on the issue of the effect on interstate commerce under the hobbs act i think there's even less of a of a clear obvious basis for for a legal innocence claim here this robbery did not actually affect commerce and i understand this to be a legal argument that a robbery like this could never affect commerce as opposed to a factual innocence argument which obviously a record would have to be developed it would have been had it been raised at the time  it could be on a twenty two fifty five but this point the amount of money is too little to fund commerce i don't understand to be making any any factual points like that i think this is a sort of categorical argument that forcing someone to withdraw money from an a t m doesn't affect interstate commerce and for a variety of i think fairly obvious reasons i don't think that that can be a categorical law but i think his point is i'm sorry i thought i thought the point was that if it came from the about i think that is what you want your want your robbing the bank or the bank is affected and somehow deprived of its money or its ability to do business or whatever then that interstate commerce will be affected that is our position yes and that is that is what mr rose pled guilty to that was what he was charged with and i think that that's what's important here that there was no plane error in judgment in accepting on those facts that were before him but that commerce was affected by this robbery interested judge walker was just questioning my opponent in terms of bank robbery and use the term if the bank is deprived of its money you know certainly a bank is rob when somebody goes into an a t m and goes in with a crowbar and takes money out we know that the bank is being robbed whose money is being taken here and our submission is that it's the individual's money he's owed that money back from the bank he gets it in his pocket and hands it over so our position is that it is his money and the  we struggle i've struggled with trying to prove any bank robber who goes into a bank and gets money out of a customer's account as opposed to just money the bank is running around not unless it that would have to go  the customers i mean it's interesting question i don't know i haven't research if you go into a bank and there's all sorts of customers there and you take stuff from behind the window you're robbing the bank if you take somebody from the wallet of the customer query what i assume you're robbing the customer and what's different here is that it goes to the valid owner and then goes to the person as opposed to simply taking it from behind behind the window my client is not asking for acquittal he was asking to go to jury trial he pled guilty he has to demonstrate a fair and just reason to a draw his plea of guilty he may lose at trial he may win a trial and having a credible claim of legal innocence that is the test and our position  he plainly has a credible claim of legal innocence yeah i'd love it to be way on this side of the spectrum where your honor say well of course this is even close to affecting interstate commerce and so therefore and my guess is how strong you find it will weigh more towards a sign of plane but it is different then acquittal and in terms of the stand trial rights obviously an individual on the right to go to trial is incredibly important i understand importance of guilty pleas but he's asking go to trial when we have to determine whether this is a credible claim of legal  that means we have to decide the question whether you're robbing a bank or the person a credible claim of legal innocence requires that there be an objectively reasonable argument i believe would jury be charged don't we have to look at and if it if it went in the jury could be charged that this was the bank's money but that's a question of law lies not that that wouldn't be for the jury to decide which you know as a legal matter what whether this is bank money or individual ultimately it is a question of law and i guess the question is going to be whether then it gets decided now or it gets from our perspective remain and we were to decide against you on that question and against burton