cork i'd like to focus my argument this morning or merrily on the sufficiency of the venue with respect to the little book robbery which is counts five and six of the redacted indictment there's no dispute that that robbery occurred in the eastern district of new york the district court found that the venue was proper because rezai the victim purchased ice cream in the southern district of new york and therefore quote it would be reasonable for a jury to him for that by robbing was the significant sum of cash accumulated from his ice cream business defendant caused at least a slight effect on his economic ability to purchase ice cream in the bronze based on those on the same on the same quantities the different courts find that is unsupported by the verdict because by the record i should say that even if the stolen cash originated from result of these ice cream business there is no evidence in the record that he continued to use that cash for his ice cream business indeed the district were sustained an objection when the government tried to listen to that very testimony at one hundred and twenty eight o dark and that's what the casson is sealing was for i think the government recognizes as much of the problems with the with that evidence because they now make the argument not relied on by the district or the venue can be based on preparatory acts found venue lacking for charge of its heisman to gauge in unlawful sexual activity there were three different victims in the corridor that went through the evidence of each of them but the government argued that venue was proper in the southern district traveling to the meeting and districts and the houses on one side and the dry on the roads on the other side and they were walking across the crest of the line the border into the house to rob the person the the  in this particular case they drove from the bronx to the victim's home and back to the bronx and and on on on recap and that was on the reconnaissance then they then but the night the night near that they they they it they drove to long island wolf waited nearby and they conducted the robbery and and then hell of a gun point and then you know and then and then they drove drove drove  purcell side and so also with the defendant was driving to commit a security for and the the court said that's not it's not about travelling too it's not about the act of them before that i ask a question on that very point there  here what it was more here though than just traveling as judge walker was discussing there was not only surveillance going back and forth between the bronx but they recruited a coconspirator the correct and they also obtained cars then weapons obtaining the weapon and this is of course robbery you need you know which involved weapons so it isn't that a distinguishing factor that there was so much that was done in the bronx other than just travel it's just absolute i don't i don't think so because every offense is going to involve some preparation well the point is and he could have been charged separately for that preparation he was charged for the substance of the act of robbery and it just it it's you know that evidence would be admissible to show his intenser up but the question are sufficiently supported by that begins and the defendant has a heavy burden here given the jury's verdict and i don't think he has he he meets that burden st of all they got venue is appropriate in the southern district of new york because interstate commerce in the southern district of new york was affected and that was the sort of crux of judge times opinion below regarding venue and it certainly reasonable for the jury to infer that by a significant amount of cash accumulated at least in part from his ice cream business that the defendant caused the requisite very slight effect on interstate commerce by  causing an effect on result of these economic ability to purchase ice cream from the box distributor where he purchased icecream mr azadi was using the money from for money lending that there is no testimony in the record regarding that mystery that he was asked specifically where did that money come from he testified that it was from his work over the years he had when asked at the very beginning of his testimony what was his work he said i'm a wholesale ice cream guy that's what i do he did say he had engaged in other business endeavors that was certainly part of the record as well but there's no evidence that the money that was taken from him with was real it was part of those business endeavors and in any event i think the law is clear that even if some of those proceeds had been from another business evidence presented at trial in addition to that to the interstate commerce basis for venue there there is a basis a strong basis if then davis and in the acts that were performed in connection with this robbery in the southern district of new york as your honour's had pointed out this is this is a case is very different than purcell purcel was a case where the contacts with with the district are much more limited involve traveling through the district and things like that in this case the contacts with the district were really been much more significant than the contract contact with the district at issue in purcell and i mean the davis excuse me davis  that there was a call placed during the course of the robbery to the southern district of new york in order to sort of for the perpetrator to get more assistance with the robbery to to generate more people to help him with the robbery in this case robbery i think cooperate or waltz went to went to from duchess county down to the bronx to meet mackintosh they then went to get to recruit another participant for the robbery known as julian and then that are sort of part and parcel of this robbery they go to conduct the actual robbery and after the robbery in order to conceal that the robbery took place they flee and they go back back to the bronx in order to divide up the proceeds and in conceal the weapons and items that were taken during the robbery so all those things aren't are are not preparatory steps but rather to really get essential parts substantial steps in are a fact could have found the essential elements of the crime here at there was more than sufficient evidence of intent to rob the there is really sort of two circumstantial evidence of macintosh's intent to rob the certainly evidence that the jury was intitled to rely on in reaching its for evidence that mackintosh and his  of the liquor that they had jointly put in money for but that dispute quickly escalated to in attempted robbery this group as the cooperators testify was a group of opportunist opportunist some time to plan the robbery sometimes they did it when they saw an opportunity to for lack of a better term go into the pockets of individuals they understood to be drug dealers or individuals they understood to be businesses they took that opportunity  in this case mackintosh demanded money back from the these other drug dealers a cliff street at his drug dealers a cliff street and then after immediately after he demanded money he went to his car he got a shotgun another member of the crew got a nother firearm and they proceeded to attack these these individuals on the street mackintosh assaulted a both men and in both mackintosh and  shot the victim was hit during the course of this attempted robbery and sure right after this they fled and they conducted yet another robbery so all of those things even i think putting aside the cooperators testimony are circumstantial evidence of macintosh and judge science you know i think inadvertently discounted their testimony and he he did not find them incredible he sort of went back to these principles and in the region decision in our trouble that was a real thirty three decision you discuss there the rule twenty nine principles but i think that even if first of all the is that is the determiner of credibility i guess that would that would apply but it seems a little different than just circumstantial evidence when a when a witnesses testify there  i'm but that certainly not all that the only permissible inference to be drawn this was an argument that was sort of central to trial this was an argument that mackintosh made at trial and and the jury flatly rejected example we don't have to really deal with distinguish our quired were as just walker mentioned in the context of direct evidence that's really not contradicted guess the issue before the court now if that is the timing of the forfeiture order and there's no question that the government made a mistake below in terms of not submitting the formal restitution e i think properly decided that the the the rule here this is a time related directive the rule thirty two dollars which would govern the district court's ability to enter a forfeiture order now or in this case in two thousand and seventeen it is a time related directive in this case it's particularly this is sort of i think  that was sometime i think even before our filing of our main brief and he still has not consented to the sale of b m b m w i think that the regime is in place to allow for the sale of the assets to avoid the depreciation allows the defendant asked for the sale he hasn't done that with the government has not done that the car remains sitting sitting in the in the lot i mean at the west virginia and other ones do you think that  pichon money although not restitution could be pages to victims and i think if you look at the sort of guided by the principles of the supreme court and dolan if you look at  ensure the proper and it's easy in you know to move the court forward to move things forward and not not at not a jurisdictional bar and so i think the principles to understanding that let's just take a hypothetical that it's not two and a half years but several years later and let's also assume that the defendant was notified of the possibility of forfeiture both in the some point there must be a consequence now and what is yeah i mean i don't see it as much as sort of a particular time in which it is sort of a cut off right but rather sort of to relieve you of thinking about that let's just assume that the delay in this hypothetical was so significant that i think everybody would agree that there's some unfairness well i mean in this case this is a case where the delay was long right so that we have a case where because of the the defendant's decision to sort of not pursue the direct appeal very quickly the issue was not raised and tell the defendant briefed it in his direct appeal which was many years after his the trial here right and so then the we with the defendants consent asked this court court to decide forfeiture and at that time the district court determined that it was still appropriate to enter a preliminary order forfeiture against the defendant in this part so in this particular case i don't think the hypothetical you speak of actually i think does is this case right because it's not that we would just miss the deadline for by a week or two but were we i admittedly this it didn't come to the government's attention and tell the defendant raised it in his appeal i mean this is a situation a defendant could have raised with us at any time he did not do that i don't make it it's not his duty to do that the government should and should have should have done us but it's hard for him to argue a prejudice particularly to the to the related to the b m w which i think is only argument of prejudice when he sort of didn't raise the issue with us that's my problem i mean it's a problem that we've got to work out because we have no you don't have precedent in this particular area it seems to me and you know i think that is duncan's opinion and martin is helpful levasseur it is helpful but the problem is that i think you're you're you're suggesting a solution whereby the defendant it's on the defendant to to suggest that you know your i know this was clearly at the government clearly takes responsibility and in this case and as we showed it was we had a directive from the court to do it and we didn't do it i don't that's not a question here and we accept the responsibility for that i think that but in this case i was just speaking to sort of the prejudice here that the defendant  defendant to raise that and once it lapses it lapses i'm well i mean i just think that then we sort of go back to the to the principles of statutory interpretation and the interpretation of this rule right and so  i think that in looking at that the rule doesn't set out any any consequences the rule itself does not set out consequences for noncompliance where this sort of we look at the purposes behind a statue  mr mackintosh stole a lot of money from victims here here we have agreed now to a restitution order for some of those victims but the forfeiture money judgment is another vehicle to under which to to obtain money to remit to those victims and so i think we look at those principles and look at sort of who would be harmed by by an application a sort of a stricter the government already agreed that as far as lynbrook argument where this money is possible was the right from there's no restitution to the victim because these were criminal proceedings and they declined mr peterson on that and frankly i've been in a lot of cases i rarely see yes there is a robbery offense the district court charge were the the obtaining of property by its stilling a fear that if those elements well took place in the eastern district of new york the government's reliance on davis and davis  and forty two dollars mackintosh that quote i want my money back this was all about the money that he was seeking was money because he paid for a bottle of this guy big drank from it the only at the evidence supports that mackintosh obtained from the ice cream business but now there's no evidence that this was anything to do with future purchases of ice cream i would think you know most people don't purchase and also a business i