control when no longer belonged to the big belong to the bank at the moment the money is transferred from the victims to the we think the district court earth for at least three reasons st the plain language of the statute requires that a defendant or attempt to take money when he and that we believe that occurs in here paint possession of it and that you paint at least constructive possession of it in an a t m robbery when the money appears in the cash dispenser that moment he has power and intends to control the money the nd we think the district court heard by giving effect a statement in the th circuit decision in united states versus burton that customers with the go all in that situation is a valid albeit coerced withdrawal we believe that determination of where the money that he is attempting to take belongs to the bank or is within its custody and control is measured at the time of the picnic not at the time over money and we would contend that the facts of this case a jury could reasonably find that the defendant have constructive possession of the money at the time or it would be whether people have been withdrawn at the time that the money is dispense from in the dispenser anybody can get it if the bank has lost control at that time well our contention as under the statute it is the defendant who has taken control of the money at that moment kill the knowledge and in jail the bank had surrendered control of the money and put it into the so that it is no longer in the bank controlling or owning that money that is just appeared in pin number was injured then we have that in turn at that point we exchanged through gave up our ownership in the property which was manifest but physically getting into the public domain as well and breaking the stick on the property that you're trying to sell the then the we we put that money out there into the public where anyone can get it we no longer have any ability to snatch it back or stop mean isn't that the way of the isn't that the reality of what has happened here in the ordinary case yes that's what happens when a deposit or withdraws money on a ship of the money and control the money changes that got moment description i described you agreed with then it would be a crime by the defendant against the credit card order rather than against the bank gonorrhoea we don't think that's the case that if because it is the defendant who is coercing the withdraw the defendant is taking control of that money directly from the bank the victim is not making a voluntary withdraw less my point is it directly in the bank or has the bank surrendered it into the public domain but for the armed force that this defendant was attempting to use against it since you think it makes any difference whether the defendant this it lead to the money out of the slot busy or whether with the gun to his least constructive possession because of the victim's movements actions are not voluntary they're being coerced by the robber so whichever while whichever's instance is happening it's a taking problem from the bank that you go get some money from your a t m account or i'm going to beat you up and terrified she does that she doesn't have discretionary power would you say that when she puts ricardian d and gets the money out that again that van it's a similar type of situation where the robber is not present the governor argued in that case and i think what still argue that that is a bank robbery because at the core of him being used but the thing that makes that more and more difficult case for us is that the would note to that the van situation is not one that this court needs to resolve in order to run our favor in this case and you're not committing yourself to a certain view of that case if that situation ever arises because you do have the defendant present when the attempted robbery is happening so also can i just get you to walk through the statutes the statutory language and help me understand when each element occurred in this case i mean that would help me it suggests whoever by force and violence or by intimidation takes or attempts to take when did that happen in this case attempting to take part in yet you some the person or presence of another when did that what does that mean in this context well the the the person the presence element is meant to do many victims are sitting right there in their vehicle right next to the a t m and they're the ones being asked to put the card in and start the process of withdrawing the money the money belongs to the bank the next song well it is money that he's asking for and it belongs to the bank because in the district court founders i don't think anyone disputes money inside it is money that belongs right it's also within the bank's custody or control because it's within the a t m so in this case in particular we have a situation where the money and i realize the banks control their last ownership and there's a substantial step taken place we think that cited the u s supreme court's decision in shock or the supreme court said that she said yes when it's within the a t m it's owned by the bank it's control over their bank no one no one has a problem with that i think ok to the or the victim actually hands the money to the defendant whereas art our contention is taking that purse the moment the cash appears in the cash dispenser and it because at that point either the robber federal bank robbery i am not trying to say that mr chavez is innocent he attempted to rob two people who were sitting in a car but he did not attempt to rob a bank charging mr chavez with attempted bank robbery impermissibly expands the scope of the federal bank robbery statute and takes yet one more step toward an encroaching federalization of historically state crimes now if he hit forty interrupt you  counsel but let me ask you this if the couple had taken their debit card in put it in the th and then the money came out it was in a cash dispenser would that money have been remain in the possession of the bank if the money was out in the cash dispenser that if when the money is in the cash dispenser that money is the money of the people who are sitting in the car and let within the bank property in the can't dismiss or without regard to whether it's also within the position of the couple is it also within the bank's position it's in the bank's machinery i don't think at that point the and the money was sitting right there the individuals in the car would have taken that money there would have been no ability for the bank to have that money back that money is entirely in exclusively there's no simultaneous possession of that money that money is entirely exclusively money of the occupants of the car so i don't think that there is any legal basis to say that there is some type of simultaneous boat or ship or control or possession of that money when cash is dispense from a kit from an a t m machine the money is exclusively the property of the individuals who withdrew that money even as even if it is physically deliver to the couple to the to the customer on property owned by the bank i don't think that there's any belief that i'm aware of any legal basis to say that that money is still in the possession or control of the bank i think it's been dispensed by the by the bank at that point that point is no longer that the banks in the thanks custody you control that is exclusively ok hypothetically if in doubt are seeing completely what you're saying but hypothetically if we say take the case to spend the money in the camp dispenser remains at least partially within the bank's position then when we have to reverse because the judge seems to me to have made a factual assumption that is not well again i don't want to see it in any way that the money when it's just danced is in the property is the property of the banker is under the control of the better so i don't know that there's any factual basis from which we can conclude what was going to happen if the money was actually dispensed so that's something that there it's kind of an unstated premise of the district court's decision but i think the government least my recollection of their statement in their opening today is that it was it a relevant legally speaking whether the money was taken directly by mr chop it would have been taken directly by mr chavez from the cash dispenser or if it had been taken by the occupants of the car from the cash register and handed over to m that to the district court's decision what the district court does or court's decision should be upheld because the district court's decision comports closely with the language of the federal bank robbery statu critically under two thousand one hundred and thirteen the federal bank robbery statute the relevant time in which the money must be in the care custody control management position the bank is the moment of transfer from the victim to the defendant and  your honor to go back to your question about who has possession when the money the cash was dispensed from the a t m again i think that i don't think that there's any legal there's no we don't principle or basis that i'm not actual robbery if it were robbery i would i would frankly tell you that i think that that this was no longer the bank's money when it got into the dispenser tray and you if you took the money at that point it was you it was not robbery because the bank didn't have it anymore cast it out into the into the to win this for whoever wanted to get it but attemp is quite a different story all you need is a action in furtherance of a plan to do something illegally and at the time of this plan being handed there's no doubt that the money was the bank's money and so the defendant comes in and says i don't quite know how i'm going to get it but i want to get at this moment it is my attempt to get some money that right now is still now how can i do it i guess i could use a bomb i could use a terrorist i could have seen guns walking in the lobby or i could do it in another way but to me the wildcard in this analysis is the ambiguity and the flexibility of the word attempt i'd like your analysis of that approach certainly your honor let me back up and just highlight what happened in this case mr chavez was not targeting the bank he was not targeting the a he was targeting the people who were sitting in the car when he walked over it that was a that's true originally that's right as you eat something would have made but but but your original target his original target at least according to the charges changed when they didn't have money so then he said ok now i am going to target something different i'm going to start target all this money in the bank and how can you help me get some of it he took the time he developed his plan the money had yet been segregated out to the cardinal and he was saying nobody disagrees at the time he says i want that money that money that he wants was still bank money and he was simply coming trying to come up with a s critical and important component of this case which is that but i want to answer into a spurstow of all again mr chavez was targeting the individuals in the car and the money that he was targeting was the money that belonged to the occupants of the car whether it was money in in their pocket i don't know if that i mean the money didn't belong to the auction until they get certain steps among them being to agree to give a a legal commitment to pay alternative money the bank some day at the moment that money was not that the bank or the credit card or money and i think that's where the language of the bank robbery statutes st of all the language of the bank robbery statute is so important because it requires that the the moment the critical moment for when money is must be in the possession controllers of the bank is the moment of transfer from the victim to the defendant and that would have not taken place had the money then dispensed by the a t m the nd part of the answer that and i want to emphasize your honor is this by saying that attempt in this situation is enough to trigger the federal federalize a number historically state crimes let me give you an example this would be no different than a situation of a feat breaking into somebody's house and demanding money from the home of the homeowner says at a gas station that v m provides i believe a controlling analysis and if we apply fanned the facts of this case i know the government said that by deciding in the government's favor in this to possible bank robbery situations that have historically ben simple state crimes of robbery and i say that for this reason very few people reaching a point where cash having cash in your pocket is a rarity most people have something warm a virtual currency whether it's in a credit card an a t m card some type of app on your phone if every situation where somebody is rob is robbed and had pocket we are so we are saying that that those situations are bank robbery and that's really sunny and i'm sorry you know lunchtime get let me ask you one question about what you're saying no a credit to the word control in other words if i am a bad guy and i have a gun on someone and say go put your debit card in the a t m put in your pin number and and take that out and let's say i agree with you that ok once the money comes out in the cash dispenser it's no longer the banks well from the very inception that person is to use the language of mccarter is an unwilling agent of mine and i am the one that has all of the control because i've got the gun at the person's head and so when they put the debit card in the a t m from from the moment that is pulled out of that person's walk with it i'm the one with control and so when it when it when it hits the the bank and it it it it it which is certainly within the bank's position within the the vaults of the bank from that moment preceding and after i have control and so i have constructive possession of that money at all times what's wrong with that y focus to be and that is to say this the focus of the bank robbery statute is on moneys or property or possessions that are in the care custody control passed as action or management of the bank if the time of the transfer of the property from the victim the defendant and that that moment that's where the district court focused and that's why i believe that this course should uphold the district court because that's the appropriate focus expanding that so this beyond that critical moment of the transfer of  for property risks over expanding to the federal bank robbery statute and getting into terrain that is dangerously federalizes crimes that have historically been state crimes and i that answer your question or i'm in my time thank you thank you judge a bill or judge i did you have any questions for the ability i'm not good but i don't have any further questions no i mean i  think i think you both make really compelling arguments like i mean yes this may be a case where there are sufficient intellectual arguments both ways that practical analysis may have a atypical influence in the outcome by a questions ok proper way in our view whatever happened is happening to the ownership of the money when it's dispensed from the from the a t m or what we do think about the ownership isn't changing but even if you set that aside and disagree with us about it's still going directly from the banks control to the defendant's control the reason that money is leaving a t m is because it is being taken out of the a t m and who is taking that money it is the defense it is that when they ask for all the bank had lost control not when the money is taken out of the slot the bank that lost control when the money was dispensed from the balls d of the a t m into the slot right and that's when the taking is occurring as well in our view of the statute your honor at exactly that moment when the bank is losing the i'm sorry i'm over my time but