the next case on our calendar is united states versus andrew o good morning you may take the podium in this matter the certainly more no surprises there was a rare house robbery or burglary better put that was you could determine that from the start of the case  pretrial during the evidence and throughout the case and certainly the closing of the case you wouldn't be here if the state of connecticut decided to bring the charges state charge of robbery or burglary a interstate shipment as opposed to what your honor indicated which is i guess the question is six fifty nine has a provision that says the judgment of conviction under the laws of connecticut in this case shall be a bar to any process federal prosecution so you wouldn't be here if the connecticut state officials had decided to and successfully prosecuted you client that's correct under u s c section six fifty nine interstate from interstate shipment that is different than what we see and what's considered a hard fact or a larceny matter  no surprises there were no surprises again there were indeed a burglary at a warehouse where i had had stolen the cigarette cartons from the trucks that were on the trucks would you have an argument available to you under six fifty nine and if if not why not no your honor i would not because of what was considered by this court in a stall as the the loadstone issue here stone was where there were bills of lading for those items that were already in the truck they were certainly loaded on the truck there had not been bills of lading but they were on the truck ready to go to massachusetts for example would you have an argument possibly there are other factors that we would have to consider but possibly in a stolen as there were several factors and its progeny there were several factors just loading the truck is just one of those certain factors there has to be a way bill because that is indicated specifically in the statute there has to be a segment or separation of the items from from from the stands there has to be some type of shipping mechanism that happens so you separate you load the truck you create a bill o lading and you there has to be a way bill for this statute it is indicated in the statute you know it's simply saying that a way bill is going to be prime a facia evidence about where the shipment came from and where it was going it doesn't say you had to have you have to have one of the statute doesn't apply is that the position you're taking that absent away bill there can be no violation of the statute i don't want to take such a hard position but i do want to indicate that in a stone which is what stole those tracks perfectly the statute indicates all of the factors whether it's the weight bill whether it's the items were separated whether they were loaded those is in this year of interstate ship absolutely not as full proof the necessary requirements that's correct your honor but why you answer to my question in the way that not be dispositive that was if we're looking at six fifty nine or if it's triage in the state i believe was what you're on or no no no it was talking about six fifty nine i thought you answered my not the end of the story for us what i believe is we need to know where those items are headed and it is with cigarettes they needed their tax stamp absolutely that is different that in us dollars absolutely requirement for interstate chipping is that the tax stamp had to be put on for either connecticut or massachusetts is not correct that's correct it's different than ana's as a stone was but it's just one more part of showing how those items those cartons would have been part of a shipment intrastate shipment and that's what we don't have with the items that were stolen in terms of what was found on the truck all those were stamped already those really just to help us out assume that we disagree with you that bills of lading and specific shipping documents are necessary to support a conviction under six fifty nine and then then how do you prevail give me a way to to where you want us to be in this case eight thousand cartons were stolen roughly if we follow what the warehouse indicated eighty eight percent of those cartons would have stayed all remained in connecticut twelve percent of those cartons would have been shipped to massachusetts none of those cartons none of the eight thousand or stamped we don't know where they would have headed we don't know  they weren't separated or or into individual shipments no pickers were involved there was no way bill were no envoys to indicate where they were headed there were disputes that cigarettes are not made in connecticut right they are came from somewhere that's correct and nobody was going to smoke them at the warehouse right certainly not what he was going to sell them out of the back certainly not they were on their way someplace they weren't off now  no sir they were going to keep them there what we don't know the cigarettes that were already loaded on the truck they were on the way someplace the cigarettes that were in fact still on the in the containers were not separated were not taxed but you think if they were going to stay in the warehouse we don't know what would have happened to them how the argument is that they were going to stay in connecticut so eighty eight percent might have stayed in these food whatever stores or been shipped to connecticut stores twelve percent would be shipped to massachusetts or new york that is that's the argument that's our argument what we're saying is that here in the district court as well as the government indicated that well their future shipments dollar number and that's just a threshold minimum that triggers a higher statutory maximum of a criminal liability all you needed was to show one card under six fifty nine seems to  separate and apart from a thousand dollars but let's just let's just stick with the thousand dollar number twenty five cartons all i think i wanted to show the correct me if i'm wrong is that twenty five cartons would have gone on would have been shipped out of state new york and massachusetts out of the eight thousand cards is that right or wrong that's that's what the government argues asking you that's not right i believe that's wrong because there is no way to show that you're on how they had they had their own person their own employee who testified to precisely that point which was incorrect he could have testified which he did what the court considered and what the government argued was look at the future shipments let's look at the past twenty three weeks and let's consider no let's consider the future shipments but we don't know what would have happened to those cigarettes those twenty five cards that were purportedly on their way out of out of state to massachusetts we don't know what would happen to them we don't know that's a metaphysical we don't know not a every week we shipped these cartons out massachusetts and new york and of the eight thousand cartons of these twenty five of them would have gone to massachusetts new york we can rest assured of that you know you're asking for metaphysical doubt i'm not what i'm asking for what i'm asking the court is to consider the horns of cigarettes that were stolen were a product of and owned by the candy company they were not ready to be shipped out they were not in any way met any part of the statute they were not separated were not taxed there was no bill of lading no steps had been taken no steps segregate them or to transform them to put them back into interstate commerce none whatsoever and what we have to consider is perhaps it was the food bad company that's where these items are sent to perhaps food bad would not have placed an order for twenty five or twelve of the twenty five so we have a concern there perhaps anything could have happened at the warehouse look what happened there could have been a fire could have been a flood anything could have happened maybe i don't know  happen no year on and those other pieces the cathodes the many bikes the sugar cases the gas cases those items were already in transit and interstate transit everything that we ha that had to be met regarding six fifty nine was already met there were bills of lading they were in transport and a truck they were already separated people were buying them they were invoices here those items were again there were no bills of lading none of the other steps had had taken place so unlike those temporary cases where you have items that were already in transit that's not what happened here these were still sitting in the warehouse still owned by the company one is about of then it's owned by a company installers carriage of property by the owner does not put the property outside of the protection of section six fifty nine so this was the owner had the property in a warehouse awaiting shipment to various places in and out of state but it's one pile of stuff that gets stolen right now we don't know that and  it was owned here by new britain candy we don't know where these items would have gone we don't know if how this how they're segmented we don't know what would cigarettes what would have been more popular from week to week from any of these food  hasty you have just a moment you're right things change from week to week and i don't want to saying that things don't change from week to week for this company he was but we don't what we're doing is looking to the future and that's what the district court did it expanded the statute here what makes a different then in other companies and some of the temporary cases those items were not necessarily owned they were on their way from one state to another here there was nothing created nothing whatsoever no order the orders that were placed were for the items that were already on those trucks outside those items were headed out of state they weren't taken you are asking us for a ruling that wires some shipment water step i'm not asking the court to create any new any new law as what we see here i'm asking the court to follow its precedent in a stall is to look at the statute and to follow that i'm asking the court to consider that that was not done in this case there was an expansion of the statute that clearly worked against mr kent i'm asking the court to look at its its president would it was an interesting case connecticut does not have a grand jury system and the facts underlying this case the investigators that have frankly very fantastic job investigating the case  put it sweatshirt and gloves left no d n a traces but for analysis of cell phones that was exploited in the investigation with the federal grand jury the case never would've been solved so that's you took the goods passed connecticut i don't know that all in goods at the time that's twenty three fourteen of title eighteen right yes your honor i don't know i thought about it ultimately said not to do it because it's not clear we know that mr based on cell phone analysis to mr can return to left connecticut and return to new jersey the next day returned the truck or if there is a truck was recover back in connecticut we could not show as a matter of fact with the proof that we had that the cigarettes ever left connecticut it's theoretically possible the truck stopped in stamford where it was found the next day and was offloaded there  set aside again second so criminal liability as i understand it under six fifty nine is just so this stealing a shipment as it's going interstate right stead of eight thousand cartons had stolen substantially less than that so one hundred cartons i think where your telling us to go is to embrace this case the eight thousand cartons was substantially entire warehouse practically seventy five percent of the goods in the warehouse the cigarettes and or else or other goods there as well deal with the i favorable facts in this case that the things move in and out of interstate commerce my understanding thing landed in the warehouse they were there right true and they stayed there for a while we don't know how long but for a while we know from mr test hastie's testimony that it was the  business practice of new britain candy to hold the cigarettes in inventory for no more than ten days and he that that's when they were stolen during that period when they were inhibitory yes but they had the boxes have been cut open in they've been placed on conveyor belts upstairs in the warehouse next to a safe that had the tax stamps the stamps are very frankly very valuable so they keep them in a safe the cigarettes were going anywhere without the text that's correct which leads to the point that they had not reached their final destination because they had not yet been stamped with either connecticut or out of state in this case or stamped six fifty nine and to think that they have to do some steps taken to put these cigarettes back into state well depends on the cases you're looking at and i think it's a case by case basis in the goods and the timing of when the case was decided for instance gasoline's in a pipeline and it's coming i think as to williams case from texas to north carolina and it's taken out of the pipeline and placed in a tank and then placed on a truck or into a tanker truck i stole this was a different set of facts interstate shipments with these and not yet far enough enough i would say yes your honor because if you look at the max case that was sugar come from puerto rico and a warehouse in baltimore there was no customer orders placed yet and there is no never that precise i think it's it's there the statute is designed to promote the flow of goods interstate shipment interstate shipment and interstate commerce the certainty in this case was mr hayes he said the cigarettes were going to go up twelve percent or more have been taken the massachusetts monday and wednesday of that week all twelve percent would have gone out of state monday and was in a mass thursday and as still as compared to the cigarette since the cigarettes needed i keep coming back to transformation in order to be able to be no they needed to be packed and tax stamped that's for that's a very big step in the selling of cigarettes is absolutely it's highly regulated by the states so they're going to attack a stamp it's important they couldn't sell them at all they could ship them without the tax stamps they could not sell them legally i think what carton of cigarettes they were going to correct they were going to be shipped to the food bank convenience stores which is the government's contention is that's why they were still in interstate shipment i'll be it a temporary pause at a warehouse and then the ok and that's where we may disagree turned on is that it began out of state where the cigarettes were manufactured and it ended whatever the food been a bag store where they're going to be sold retail is correct your point correct and so this warehouse was just a stop in the middle where they be sort of put in different piles correct and the government took a conservative approach here because i think ultimately even the cigarettes for food back warehouses in connecticut had not yet reached that saying it was the really the ultimately that should know better than that when the cigarettes got to their retail location ok but if if you began at the manufacturer of virginia at the retailer then it would seem to me what you're saying the statute started the second year and now i think that's the argument but i don't have to speak for mr you know i think the jury rejected that and judge meyer rejected that but i think that is his argument was there was there an instruction on this notion of a temporary st instead of twelve percent the percentage was point point point five at some point it's got it right or correct what point is that i don't know your honor i don't have an answer there i understand the concept of we're getting closer to a why this wasn't a temporary stop thank you it wasn't because of the facts of the case this was not a warehouse that was temporarily housing these cigarettes it had made its final stop their invoices they were paid for they remained at the warehouse in till something else happened and it didn't happen here until something else would have triggered they become part and parcel of the interstate shipment it did not happen here in returning briefly to whether this was a thousand cigarettes one hundred ten cigarettes or point five percent falling i believe that and i guess what he's saying is we don't have to answer that question in this case i think that this case should i think that should be considered here because if we allow this to be a part of now how we look at these cases what we're doing is in not only expanding the statue we're making this look like again some type of federal larceny or some type of how hobbs act there's a statute for that but aren't you asking us to do exactly what the circuit in a stall is said not to do the language there and it repeats other cases here and elsewhere is that the court has repeatedly held given the all inclusive sweep of its terminology that section six fifty nine is designed by congress to promote the flow of goods in interstate commerce and carrying out this purpose is not to be hampered by technical legal conceptions it seems to me that you're asking us to do need in a sort of line drawing game in a warehouse if they had stamps if they were in this pile if they were big pile and one of those lines means the statute applies and one means it doesn't and that seems to be exactly the kind of technical legal conceptional process that they've told us not to do you have don't believe so the other cases that are cited even after stole this one was cited the maddux case with the sugar there the sugar was transported from puerto rico ends up here in the states it's a fungible item so it needs to be moved off the shelf similar to to what we have here with the cigarettes in that case contracts were drawn weeks in advance that's not what's done here so when i the bills of lading the way bills something to show here nothing nothing happened if we look at what's technical we go back to the maddox case estimate of a testimony why isn't from philip morris and the other cigarette company to say that we purchased these items we being britain candy purchased the items now owns the items the invoices have nothing to do with they are now going on their way to to the food bank operations that's a separate contract and that's a separate bill that needs to be drafted so that's different than what we see here and i just briefly get back to the to that sugar case because if we look at what's done there why not we follow that here similarly why not we draft those contracts week weeks and events if we can now argue or if the government can argue that twenty three weeks before this is what we saw so we're guaranteed that will happen in this case we can't look in the future with this because it's not indicated in the statute that's not how the statute a statute is constructed and