crime evidence as really sick counts five and six for the third robbery first on count four in light of the united states supreme court's recent holding in united states versus rosemont there was insufficient evidence to convict mr headley under nine twenty four whereas if there's a flawed jury instruction there can be a new trial with the right jury instruction right so that that's where sufficiency would be a better way to frame it and a wonderful way to win it but i thought we gauge sufficien arguments based on the instructions that were given and there wasn't a rosen instruction and i think there was sufficient evidence on the instructions given so if you're only going to do sufficiency you run the risk of losing whereas if you're willing to argue the instructions were flawed it's true you are you can still make a sufficiency argument but the sufficiency is gauged by the instructions that were given am i making sense yes you ok so what do we do not have to holdings first was that the insurance sections had to be clear and while we don't argue direct review of the jury instructions it is included with our brief as further evidence that advance knowledge is not considered at all by the lower court are in here is the sufficiency of the evidence which is the second holding of rosemont record clearly established in rosemont that the prosecution needs to prove the defendant had advance knowledge beyond reasonable doubt i understand the remedy for sufficiency of argument it might seem harsh and in this court is unwilling to go that far in the alternative it could vacate and be manned discourse for the district court at the minimum the district court should be allowed a chance to provide clear jury instructions so the court can consider can win and so i'm dismissing that count as it is or the district court could say well we're going to trial on that cow with the proper roseman instruction that's currently on or anything within the purview of the district court to do firearm count on the third robbery yes that has a roseman for two but you're not arguing that the third robbery in counts five and six we are arguing insufficient evidence so the rosemont argument goes to that because it's another component of failed to prove beyond a reasonable doubt there was a dance knowledge on the part of mr henry because in provide any direct evidence that mr heney had such advanced knowledge the only evidence the prosecution presented was indirect or circumstantial evidence although rosemont is not clear in what is enough to establish advance knowledge it does very clearly tell us what is not enough and what is not enough is when the government relies solely on the defendant's behavior during the crime when there is no other evidence even infer that he had advance knowledge the government or mr henry's case made a similar argument that the government made in rosemont itself here they argue that because mr henry arrived at the scene saw the gun didn't honor it's included in our brief so it's not considered wave and it's just there as additional evidence to show that the court did not think about advance knowledge at all we didn't know before but we do now because of rosemont that for a conviction under one twenty four c it's a specific intent that's required and in the district court no specific intent was found and no rational jury could have found specific times all of the evidence shows that mr henry did not know the gun was real for instance in exhibit one seventeen which is the interview transcript that was emitted and the jury had a chance of you doing a great job and as proved by the fact we're going to keep asking really hard questions but at least they seem hard to me just to make sure we're on the same page as to what how i think about the case let's just think of this is a different case altogether and that at the time of trial everybody thought the crime had two elements thing a and thing b and everybody was focused on that and the instruction said you have to find beyond a reasonable doubt thing a thing be after a trial the supreme court says oops that statute has three elements all right i wouldn't think anyone would come to us and say we win because there's insufficient evidence because they didn't put on any evidence about elements see and that was because no one knew about it no one argued it just no one knew about it the law changes sometimes and i would have thought the answer in that the way you handle that is not to say the defendant walks because the government never put on evidence of things see when it wasn't argued no one raised it no one even thought about it what you would do is have a plain airing kori about whether the jury was properly instructed to convict only two elements and you just don't be a plain aaron corey and if if the defendant won you wouldn't w insufficiency grounds you've won on the ground that we go back and have a properly instructed jury and give the government the chance to put out evidence as to the third element so that's my that's how i think about this case and that's how i think about why i think you're wrong about much of what you're arguing but why you could be right about the jury instruction points about tom looking at it so tell me that's a good way to look at it or here's what i'm missing that is a good way to look at it you can find on this case  insufficient as this court has some before and u s b richardson i'm making it worse than that i'm saying that's all we can do i have no i see no world in which we can review your sufficiency argument unless to go back to my hypothetical the government actually failed on showing elements one and two that would work that's ok but that's not your argument your argument is to try to hang them on missing evidence and think three that's correct your honor and this court has reviewed prosecution needs to prove beyond a reasonable doubt the defendant had advance knowledge of the rosemont is a jury instructions case the holding is very clear and here there is no evidence that mr henry had advance knowledge if the remedy sufficiency argument seems too harsh for this court and the alternative this court can vacate and remain to the district court and loud them a chance to provide clarifying jury instructions which case we are not penalize in the prosecution for doing something they didn't know they had to do but in light of rosemont we must provide mr henne with a fair trial and in this case the fair trial requires showing that he had advance knowledge of the gun beyond a reasonable doubt as to that argument the last one the dream struct that is because there was evidence that mr henry had he committed a crime would have known that the gun was real as the gun was very different and the second robbery it was a handgun that was concealed by his cohort whereas in the third robbery it was a large rifle and the rifle was also fired because he traveled the same car as the cohort he would have possibly seen it and the prosecution could have said oh well then he definitely had advance knowledge in this case but it's different for the second robbery because a handgun was concealed much like how the handgun was concealed in rosemont itself and the defendant good morning and i'm sorry i apologize for this if you do we are we do have a law student here who is arguing her first argument and in light of the questions asked by this court in some of the responses i felt it was my duty to supplement i do believe the third robbery we do specifically ask this court to review that the jury instruction issue with regard to the third robbery there was no instruction on it and that was a jury question that the jury had to determine beyond a reasonable doubt as well if there was any miscommunication or misunderstanding about that mr our client would like for all of the counts except for the first count where there was a clear confession on the matter to be resubmitted at the very least with improper or with with the proper j instructions otherwise i understand that this court could find some of these arguments waived but in the issue of fundamental fairness and because of what right what roseman tells us the only proper remedy for our client is to send us back with a long what with there's about a third robberies going to be affected by what you say about the second robbery in rosamond you've heard the questions what do you think the right thing to do is on this well it's obvious that  the wrong jury instruction was given but the correct or instruction was given for the law at the time so that if that means the sufficiency claim is measured by the wrong instruction at least for double jeopardy purposes right and you would say you have a pretty good argument in terms that being sufficient evidence of the wrong instructions well you have to concede i would think that it's hard to call it not a plain air violation when it's this kind of state of mind thing  the second robbery i think i can say it's not playing here for certain on the third robbery because middle of the state with the second one i think i mean you can spend all your time about the on the easy stuff but it doesn't help us much right the second robbery we have very strong evidence that mr henry knew a real gun would be used because he had already pulled a robbery with the same gentleman with a real gun which he confessed to be a real gun on tape there was one robbery with a b b gun no that's not true your honor he had it he had a b b gun but his partner had the real gun and that's what he was convicted of count two his partner had same circumstances wearing the same type of outfit he has the same role he's the counter jumper right he's going in he knows it's the same gun many months apart three months three months apart two months apart so two months apart he's going in with the same guy he knows it's the same gun as he confessed it pages eight hundred twenty five twenty six and twenty eight of the tape he knows it's you know it's a real gun and it's the same gun when you say to be specific is that something he's saying before the robbers that discussion after the robbery because it's advance knowledge before the robbery right in the circumstances would indicate  giving a page for us to look at what does it say does it say he knew ahead of time it was going to be the same guy i don't think they used the term ahead of time your honor but he confirmed it was the same gun probably the best quote summary of what henry had been saying throughout the tape no just so there's no confusion henry did have a b b gun as he climbed the counter in the first one and that b b gun was discarded later but his partner had a real gun as he confessed  guarding guarding the doorway income for for counts one and two he can henry did the same thing with the same guy two months later in broad daylight he's going to rob a bank  full of employees the rosemont courtside in a circuit case which had that same circumstance that's that's indicative of the four knowledge that there's going to be a gun involved there's circumstantial evidence of that even if you didn't have even if you didn't have the first robbery that you've already done with the real gun if you just the circumstances that you're going in to rob a bank you're going to you're going to jump the counter and there's a guy back in you that those circumstances indicate that  you know there's a gun involved but it's even better when you've already done a robbery where you know a real gun was involved and in fact you know it's the same gun so by the fact that you know it's the same gun you keep using that but we as you well know when you read the evidence well i don't know whether he's saying that after or what he knew ahead of time there so you're saying here's another factor on or he also said that he  he did that the guy with the real guns in charge it is also possible he that during the robbery she's got the gun right vance knowledge just before the robbery starts it's not what you learned during the robbery the best way to have advance knowledge is of course to have the guy write letters need to sighted not to have even a toy gun the second robbery right because it was climbing all over the counter wasn't helpful for him jumping the counter but he had to have security behind him that there was a scenario here and all three robberies or security at the premises is further evidence that henry knew there is a gun involved henry has to run right past the sky it was a gun drawn to get to the counter so henry fully knows what's happening henry doesn't hesitate you you can count the seconds on this is a twenty eight second robbery there's no hesitation those circumstances indicate a new thing well the only thing i've heard that is meaningful to me is circumstantial like you acknowledge and that's the same partner two months earlier had a real gun that the circumstantial evidence but it doesn't tell you anything about this robbery and you know it's a different bank different robbery and i just don't know different  why approves and he's doing the second robert robbery differently from the way he did the first one so we already know there's one difference i don't know it just seems and it's we're talking about beyond a reasonable doubt i don't know i wouldn't mind being counsel to henry on that coming right i'm not saying there aren't arguments to make your honor and those arguments were made you know they weren't that's the whole problem the advance knowledge argument was not made to the jury and you didn't get a chance to put on the evidence you would like to put on they didn't get to argue it with the proper instruction i mean that's that's the problem yeah i mean i think we put on all the evidence that we had regardless and i'm also discussing it with you today  to advance knowledge there wasn't some other piece of evidence out there that i'm not discussing with you today about advance my knowledge part of it was circumstantial the fact that circumstantial just as good as as is the direct evidence the fact he's already pulled one over the go out you had to show dance knowledge and you did the best you could why didn't you let him have an instruction with advance knowledge why didn't you tell the court let's have the instruction we know this is being looked being litigated let's avoid the problem it wasn't even i guess it wasn't even an issue in anybody's mind it wasn't like had it had i known there is even an issue of course i would want that instruction at the time but the way the timing of the cases came down it just wasn't it wasn't it wasn't an issue but we had had we had instruction i feel we could have proven and that we there is evidence here beyond a reasonable doubt would be answer knowledge if you consider all the circumstances involved and particularly all three robberies lined up they did the exact same way we're going to use the third robbery to help on the second well when you see the full picture and it's ted it does it's ten months later oh of course right well now you get to argue the third or ivory the third robbery in terms of sufficiency i cut you off at the beginning you want to talk about it vance knowledge in the third why it was harmless so right well he's driving and he's driving to the robbery with a long gun in the car there's no way he doesn't know there's a gun involved in this and the fact this is number three now that that's significant this is number three there's already been a real gun to number one and number two which he participated and which he he did he perform the same role and he was the counter jumper in and he had security of a rogue gun at the door that's let's say that now is do make that argument yes the second conviction on the gun is not upheld that that's vacated for on rosen and ground such as say that for the sake of argument so i put it absolutely he's only done the first one now and the second one has been vacated for a proper instruction probably instruct jury now how do you think about that though he's done the same thing he's done he's on his way to number three to do the ig perform the exact same role as he did a number one he's the going to be the counter jumper he's going to have security at the door with a real gun this time it's a long gun this time it's not in the pants there's no question that he sees it well in advance of the robbery at a time where he could say hey you know i'm not with this i'm not going to do this  in perfectly matches up with all the elements that rosemont could ever wish for in terms of the evidence about everyone agrees it's a rifle right i want to freeze that it was in the car had to be they came in and they came in a stolen car in fact number three in the matter i mean it we don't we don't know where that was in the trunk so that's what i'm getting at well no i guess we don't know if they got out got into the trunk but the circumstances indicate they jumped out of the car just like number one and let me remind you number one number three match up on the stolen car pretty nicely to they steal a car from pittsfield township both times about an hour before the robbery in the same city they did they drive the stolen they the ignition they drive a stolen car to the robbery but for some reason they don't want they don't think let's take the stolen car as a getaway they leave the stolen car running sitting there in a parking lot with an open door both times so that matches up pretty nice in terms of similarity but we're not talking about the robbery talking about the firearm or stand but all the similarities oh similarities play together your honor as we talk about the firearm because the firearm yes is one of the similarities but all these other factors help help and that's terminations and that henry knew exactly what was going on of every detail of these things it was well planned and it was very similar in both cases but yes he's you prefer us to address the third robbery or not because one way you could look at the third robbery in the firearm and say well you for forty you didn't raise this and we should say just wasn't raised or we could should say it's forfeited that's a possibility number one possible number two is to say well for dealing with the second one we should deal with the third given twenty to fifty five's in all and decide whether it's plain air or not and satisfies palms three and four which  for you to deal with it if you're going to do a number two if you're not considering it waive the number two then it's probably better that you go ahead and do a number three also and i'm acknowledging certainly argument number three spar better when you the standard no reason would or could not find that enry didn't know a gun was going to number three that's so that's how strong it is now it's a bit so yes i guess if you're going to start dealing with with number two on the i like to focus on two points the advance knowledge for rosemont as well as the robbery three element as well as robbery three first the key question here is whether or not mr cheney had advance knowledge of their gun not whether a real gun was used in the robbery just as justin mentioned it's hard to tell from the transcripts whether he knew of the gun before or after the robbery had occurred he confessed knowing that the gun was real in the first robbery but not the second one if you look at exhibit one seventeen on page eighteen and nineteen the officers asked him if it was the same gun that was used for this first one and he says no in addition michael henry's answers were descriptive and based on the photos he saw  robbery he goes on to say that's not the same gun see this one is all black and this one is silver on the bottom the officers explicitly asked him on page twenty five of exhibit one seventeen did you see your partner load the gun no did you see your partner shoot the gun no there is no evidence that mr henry knew the gun would be real for the second robbery and judge watson yourself mentioned that the robberies are two months apart and in different towns so any sort of evidence circumstantial evidence is very weak and even if the jury could draw an inference that perhaps mr henry may have that inference by itself slowly is not enough to meet the high standard of beyond a reasonable doubt for the advance knowledge  third robbery we're not conceding the rosemont argument we're not conceding the jury instructions argument here that there was no confession on the part of mr henry that he knew the gun was real there's no testimony about what he saw justin you yourself mentioned that the trunk could contained the rifle and you could have not seen the gun and how he was actually there at the bar by himself so there is the rosemont issue as there is no advance knowledge and although we didn't raise the jury instruction argument directly for robbery three it's not conceded and this court can find that has not been waived in the interests of fundamental fairness fundamental fairness is what this case is all about fundamental fares resulting from the new supreme court case rosemont mandates that the jury needs to consider advance knowledge element had the prosecution defense known about the events knowledge element the entire trial would have been different the plea negotiations could have been different defense counsel could have made different arguments in light of that we a the score reversed the convictions on counts four five and six or in the alternative to vacate and remained all of the convictions here there's no advance knowledge on the part of mr henry for the second robbery and there's no advance knowledge