after jury trial through the jury didn't get to hear his one and only events what was his evidence of duress i think it's a great question your honor and the evidence was that he told the police when he was arrested that it was either that or take a bullet and that's a mr ross and mr ross had a gun and that wasn't his st story we see that is a story for over time but it's a story that he told the police and it's one i think that the jury should have been struck the dog was i think even on that base level that he was entitled any place himself in the situation i mean there's undisputed sort of evidence that there are communications between amman and ultimate so called the doctor juries do we have to ignore the evidence of i think there are text messages or something between the two of them about kidnapping some people or mexicans or so i don't exactly remember but do we ignore that or because it's sort of undisputed that's out there do we take that you have give the instruction regardless of how good that have been it's it's and that's the case from this court of the evidence from the government's perspective which is very simple ross had the gun process shot the victim and killed them that ross did these things and so when mr king knows the police say it was either that or take a bullet i think that's something the jury believe she needs to hear i think it's particularly don't think the government needs a marriage with the fact that generally kidnapping federal government that napping is not a crime of violence what the government instead arguing is that mr king's unique is not being crime is in order to get to that conclusion though i think the court or the government has to kind of mishmash a bunch of different elements from different statutes together which is a creative argument the problem is is the supreme court in this court has  d that type of analysis in the categorical yes and we know what this court should look at because nine hundred and twenty four c three a is unambiguous statutory that statute says the term crime of you can't jump around and build a nine hundred and twenty a m and i think it's the government that really doesn't have any support roots on precedent does it matter that it's kidnapping resulting in death or i think that's it's  and how do we know that i think based on this case you have the montgomery case in the browser gates that says the term results is interpreted broad and and the government makes an argument that it should be a we believe that the i prophetical scenarios about dying of natural causes are overbroad we do consider it though you think nine point four j s a separate crime what statue you're referring to i'm referring to twelve to one all right that's my point so we can only look at twelve o on when you look at instruction dirty the way that they were actually instructed it just says that jimmy patents that  to go there and not analysis because the only thing that's relevant in the statute is the kidnapping and the death from a kidnapping well again that goes back to those hyp good morning your owners justin johnson i represent howard ross in this case and i'm going to focus on mr ross's argument set forth in one of his briefs regarding the sufficiency of it the standard of reviews the court well knows is viewing and be evidence in a light most favorable to the government and the court will overturn if no reasonable jury would have found defendant guilty beyond a reasonable doubt and specifically we're focusing in this case in the st instance on those counts that are predicated on kidnapping and those are counts one and two of the indictment the government must show must have shown the jury that mr ross either agreed voluntarily and intentionally transporting the victim and that the transportation was in interstate commerce and it was indicted that way in this case that's how it was charged in the indictment was transporting between state  evidence was not sufficient to show that your honour's that mr ross either participated or conspired to wasn't there proof that there was a transfer between states that there were there was travel across cable on so there was some proof that there was travel across state lines and that was specifically st there was a there was an a t m transaction receipt six o five am from the wells fargo  and if the court inspects the documentary and video evidence relating to that what you end up seeing is that because of a failed transaction was the testimony that it didn't record who was at  is basically left what you see in that video is in the background at some point there's a dark colored vehicle that drives away you can't see the occupants of the vehicle you can't see how many occupants are well you can't even identify the vehicle to and so i've i've actually provided as part of the record in this case in addition to the but appendix of trial exhibit on a flash drive that video should the courts are that view it in connection with this case the nd piece of evidence that actually would tend to show that state lines were crossed the only one that i can gather was from st person evidence would be the statement of the codefendant mr r now king statement at one point what was shown to the jury because of burton issues he said that they went to the wells fargo and that someone else was involved in being at the wells fargo however it's well established that the jury could not have considered that statement of mr right now in connection with deciding whether mr ross in fact agreed to cross state lines or himself participated in that now these were charged i think one of the most charges the conspiracy count and when i was charged as an accomplice liability or at least that was an alternative the jury was presented with and so i guess my question this is what i'm really struggling with is if there's enough to show an agreement to kidnap  which probably satisfies both aiding and abetting and conspiracy do they have to agree to cross state lines in other words for agreement or do you only have to agree to the kidnapping itself though i think you have to agree you have to show letter briefing or something of that nature but that i think is essentially black letter law if you don't it's suppose you don't and this is what i'm struggling with then do you lose because if there's enough evidence to agree to the kidnapping and it so happens that not your client but king ended up crossing state lines best based on his own testimony that would seem to be sufficient evidence i don't think so your honor and the reason is that st i don't think that there was sufficient evidence agree message judge had nothing to do with this particular robbery i believe the record shows that it would st it was a day at least a day before the robbery and this secondly there was no evidence that any mexicans were robbed or anything of that and so it's my argument that that we make it a separate point the brief should have been admitted in the st place because it's not our horses or race just a with this fence but he came in and they gave me the jury had that information to decide whether they were plotting a robbery of someone would be mexicans or a person of opportunity but not this robbery or honor and this is the robbery that they were charged with not with the robbery of someone else and so i don't think that is sufficient  show that there was a conspiracy to commit a robbery of the to this case which i that's the charge card i don't think body some other offer is sufficient to show that there was you to commit this robbery it's certainly not sufficient for purposes of the kidnapping and and and other charges in this case but secondly that judge stross is is that the evidence of any other evidence that was presented does not show that there was an agreement to cross the state line and i do think that that's an essential element this case so as far as some agreement in place to commit the crime of kidnapping i don't think there's evidence of that and it's been shown one other by the way way that there was an attempt to prove a crossing of state lines because this forensic evidence regarding that i think is commonly referred to as cast testimony which is the cellphone testimony based on historic cellphone data we walked through that in a brief but basically what that showed was the victim jamie patton's phone was present at the a t m or in the vicinity of the wells fargo a t m at around six o five am but there is no other evidence concerning mr ross's phone history no king's phone and  and so that would not show that state lines were crossed by mister there's also no evidence in the cast materials to show that mr ross was  was the phone was present at the time of the alleged homicide there is no evidence whatsoever to show that as far as the cast evidence is concerned that that that that occur prove intent to cross the state why i look at my record to see if we had cited that proposition i did see a case that said that told for the court to the jury instructions instruction number thirty explicitly states i'm quoting the government does not have to government is as instructed to the jury the government doesn't have to prove that there was an agreement to cross a state line there was agreement to kidnap and you have entered as you mentioned that there was no no cite your brief did you just what you just read was that a site for me or was that a quote from a his instructions i believe that's correct i'm coupled up representing that's where the trouble i'm having with and you know you also have to have agreement to the actus reus usually which is here kidnapping you have to have agreement to the intent and this is more of an attendant circumstance  just don't know what the black letter law is on agreement as to an attendant circumstance and so that's i guess that's what i'm struggling with here yet i don't think you can principle liability you don't have to prove that they knew it was a state line just intense transport that's  respond to the argument that would in the absence of video with the card transaction absence of any direct evidence that they were actually actually at that bank w does that fit within the timing of the abduction and that it was in the timing of the object abduction so if so what the evidence shows is that the victim mr patten had returned to his house had his phone connected to his home and fifty five and then at six o five about to miss later he several blocks away across the state line at the a t m and there's the failed transaction and so we know that what somewhere in there is  abduction happened and the video is really just corroborating video shows because of the way the video was captured that particular banks does not capture or does not say that video of fail transactions it happened to be the case that right after the failed transaction involving the victim's card in another person had walked up to the bank and done a completed transaction and so the video went back and saved you i think it was two minutes before and that got us to glimpse and it was just a glimpse of a of a dark i should be consistent with the victim's jeep patriot driving away so that corroborates that that was the car and we know that that was the car i don't worry any of the defendants viewed on any of the so we have you know seven minutes later a few blocks away about seven a drive away photo of both if it so we have not only that direct evidence of them in the car at the time of the transactions you also have the evidence before of them as well as all the forensic evidence including evidence d n a evidence that it could be a one in sixty likelihood that he was sitting exactly where the surveillance video showed that he was sitting in the car so i think you know you put it all together you have more than sufficient evidence that  for the jury to conclude that mr ross was in that patriots entire time instruction is that this was not a case where he didn't get to put on his defense mr king got to put on his defense the evidence that he is talking about was evidence that the jury heard evidence that we're talking about here was the definitive statement and the government put it on and the government put it on both for the purpose of admissions and for the purpose to pursue to argue that or statements the defendant would not have been able to put on that statement it would have been self serving hearsay and would have been inadmissible why does that matter though if it was introduced for a proper purpose by the government because what now the definitive trying to do is take a statement that the government exculpatory statements and asking this court to parse out little pieces of it and say it's a highly very baring statement i tried to go through and i came up with a about eleven or twelve different variations it's hard to say when he changes the story or not but there's different points at which he changes a story is around a dozen times the defendant is now asking this court to pick out the most best story for him and say that was his story but it simply wasn't true that the risk though that the government the government took on when they introduced evidence that sort of had an unintended consequence which is that supported potentially addr instruction if taken literally and it was it was it was introduced by the government as as subset of evidence not as impeachment evidence obviously i think completely and had it supported the instruction maybe we'd be having a different conversation your honor but if you look at the statement i so inconsistent at one point he says i am not a victim it wasn't like that it's only after the agents really believe it was detectives at the time point out that this could be a federal crime that you crossed the state line this could go federal and they say in this with a willful kidnapping does he begin to say well it wasn't willful and then we start to see a change in his story again so it really is kind of inherently incredible the he st starts talking about when ross pointed the gun happy it's a c c he's asked repeatedly well what did that mean well i just knew what it meant it was time to go and i had to get in with him you know so he really isn't saying that he's threatened at that point and that part of the story he's consistently saying that ross let him out of the car ross let him out at the state line a t m he was unable to walk home it's only later when he's confronted with evidence does he start to admit that no he didn't walk home from state line because they were able to disprove that he was he was wrong about the order of the banks and it was sort of showed that he couldn't walk where he walked things like that and so it's as he's been confronted the story start to change and so what mr king is asking this court is to he's both arguing that any evidence is enough to get the instruction so don't weigh the evidence court weight whether a reasonable jury could find all four elements because these were very very inconsistent statements some of which were flat out disproved by evidence that wasn't contested and had to be basically contrary to that enough evidence for the instruction but maybe i'm wrong about well your honor i looked at this pretty hard and i think it's a wonderful question because i think this court cases are kind of everywhere ok i think one case i found instructive and honestly it was it was a case cited by a defense is the young case and the young case is and i thought instructive because it tries to really lay out what try to reconcile this course law and this is whether the instruction is appropriate is they know that's the legal question whether the facts supported the instruction is clear air and whether in the wording or the formulation of the instruction is abuse of discretion and that's what the young case that's what the young case why would it why would there be a clear standard if the findings would be made by a jury the judges and make findings is whether the facts support the instructions of the judge the judge has to make whether to give in giving the instruction the judge has to make certain factual determination and and i thought you said all the judge is supposed to do is decide whether a reasonable jury could believe well that you are i think assess i think that the facts of the reasonable jury would rely on is what that means if if there's sufficient evidence to satisfy the  imminent threat prong we've got i don't think there's fished out of this is satisfy the imminent threat for i know you know him but i'm saying assume that the court thought the jury was allowed to pick and choose like it is with any testimony which to believe in it could believe his claim that he made at one point that he was under a threat what's the evidence on reasonable legal alternative is there any evidence that he had opportunities to  withdraw our decline our report and didn't take advantage of them if it had three at the state line at wells fargo that was not a drive up a t m in fact you can't park at the side of the building and this is feet from the a t m in the car he actually does get out of the car and walk up and there's nothing in the surveillance video showing working is out of the car that ross is holding a gun up in the window or anything like that is very clear in the court to look at the photos in the video very clear that he could have left at that point as well and then after the crime but while one i think d the criminal activity is still being committed by they're still trying to rob and steal from the victim  they go to a seven hundred and eleven and mr king leaves this point they've gotten out of the g patriot into mr king's pontiac grand prix that car comes to seven hundred and eleven parks three different occasions and on three different occasions mr king walks into the seven could have easily said that there is someone in the car and it goes but this also goes back to the st point about the about the whether he has been threatened it has to be a well rounded fear if you read mr king statement is fear he said why don't you in for a large part of his statement is he got to walk away and the and the police are asking why didn't why didn't you turn this in why didn't you do something and he's like we'll just rush would have a rest rush knew where i lived he knew where my family and that is exactly the kind of statement that this court i believe in the d a s case is set on a low ground here just as general fear of well he knew or my family lived does not absolve him of the duty to get away from the crime to stop his criminal activity and if you really had a fear of mr ross you could have easily called nine  of for some further questions on this issue i'd like to go to then the government's argument that kidnapping resulting in death remains a crime of violence after the davis case and i want to be very clear on this issue make a significant effort to say well kidnapping is not a forced cause offense because it can be committed in through means that do not require violent force in particular in particular the statutory means of  t and yet it government has conceded that the governor has conceded that kidnapping in violation of twelve to one is not categorically a crime of violence because it could be committed through him back well it and also his argument that i def could result without it being by force and that's the argument of the government positions can never resulting in death as a different crime and it does have an element of force that the resulting in death does create the element of force and somebody die somewhere during every kidnapping there has to be something that brings it to the facts of this particular kidnapping that a death resulted from it and that has to be that connection is what creates the cause of connection that is the government relying on that or does the government agree with opposing counsel that it can't be considered your honor i'm going to be completely honest we added that argument to address this court's decision and feels i believe one of the ways kidnapping resulting in we've added an additional argument about nine hundred and twenty four j to address the fields so you think it does apply but i mean that we should st go we should in your view in the government's view you st go and look at kidnapping resulting in death and then if you don't get there with that then you also look at jay as well i think you can you are because it's a compliment that the government had to prove and so the particular crime here the whole point of divisibility is is there a way to commit the crime  in this case the elements of the government had to prove based on how the charges crime there was no way to commit this crime that was not if there is no further questions just very briefly i think the government can rely on its brief with regard to mr ross's jury instruction about eyewitness testimony mr ross's argument about  falls out of the sky there is one case that talks about lightning and says well that wouldn't wouldn't get us there and then in their reply briefs that if in a site development case and say well here's an example where there was a kidnapping and he's driving really fast and at least according to that if in in that case his story the victim died because she hopped out of a speeding car but that wasn't a kidnapping resulting in death case that was just a kidnapping case and so it was never been cited by the court and i count anyway right but i think i said why was she jumps out if she hadn't been kidnapped well i think and i think that the restrain of her body in that case would be violent force and i think what's important to the government's argument here is that recklessness isn't available mens rea because kidnapping requires the unlawful seizure and at that point anything that happens will be reckless conduct you mean no negligence could satisfy the law that needs to be followed as far as the government's been on the evidence i don't think that's how this court to use it is in the light most favorable to the government i think there is case law that we need to you know look at it fairly  that the notion that you could you know do call nine hundred and eleven when someone's threatening to shoot you you know i just i think that's a factual determination for jury of as to whether that's a reasonable thing to do what about the and eleven incident where king ross was in the current king was in the seven hundred and eleven according to those in council my thought would be if i was in his position i'd be afraid to get shot before the police got there if i were to say eight clerks call the police and then things that could happen where process thinking well what's the hold up i'm coming in there i'm going to figure out what's going on and he's going to tell that it's not going well turning to to kidnapping it just quickly a news article which were during a kidnapping there was a car crash and there is an element that you have to take the person across state lines so the notion that you could get in a park crash i don't think is hypothetical or are out  person to defend his willfully driving the person somewhere he's willfully doing it but the car crash is an intervening of that he didn't intend the car to crash