dig in jefferson this case i think it's fascinating that there's sort of two things going on one prostitute or misconduct the other kind of violence issue involving robbery and i think at this point when we see those two things we think oh no not this again but i do want to make clear that i think what we've done in this case is different than what people then doing in this in this area and especially in the one  it's different in two ways the first is the statutory argument we've made under the categorical pro choice don't think anyone's really approached that issue this issue in that way talking about whether federal robbery actually has an element of force and not just a means of force and the second way in which we've approached this that's different is that you know even below we asked that the element of force  argument i think what i would say is that we're just making is that this is an argument that wasn't made there and i think you can consider it for that reason and use threat and actual or threatened force violence or fear of injury or what the government in what has been done is that people take in this term fear of injury inside of me and say and have said it means threatened for and all we're basically saying just state your interpretation want to warn that can't be right and that can't be right because threaten force is already in the statute so what you've done if you take that interpretation except that is that you've created a redundancy and you've read fear of injury out of the statute because if it means threaten force then it means something that congress has already said that and we know i mean i think the case that we and is really the best case that the supreme court has talked about when you have a list of disjunctive you can interpret that to mean the same thing and that's what is ben done so far and that's what we're asking this court not to do and essential to correct and if you if you if you understand it is that the basic indie game with this argument is that i won't hear of injury becomes something other than threat and force it is something other than force and if it's other than force absolutely but i think that if you if we transition to the one twenty four city town to live in what you said wouldn't apply because nine twenty four c requires an element of force does that make sense so i think you're right if the government just wants a conviction on the robbery offenses they can ask for the lower means and do away with the other stuff but we need but if they need a conviction on one twenty four case isn't about the convictions with underlying robbery convictions mr jepson sentence was you know thirty of the thirty two years is controlled by the nine twenty four city council what we want to  why we're arguing categorically robbery has a force and means not a force that want if there aren't any more questions on the maps i can move to the alternative argument and understand that this will require some work with president by the intially what we did below was ask that this issue be submitted to the jury and not decided by the judge  conviction must be submitted to a jury in proven beyond reasonable doubt we know that in this context we're not dealing with the fact of a prior conviction so it follows that this is something that should be submitted to the jury and i think what we see the argument that we need in the district court is very similar to your concurrence in united states he created judge o'brien and i know there is some movement on this and ultimately i don't know of course will change so i think that this court without overruling president can address that sort of as an issue of first impression that's so i see it and if that's true you know here we go it's a really you know i think what we did below made a lot of sense you know we asked for the instruction we asked the court to determine truck with a jury that to find this argument isn't developed yet in terms of court cases on it and it's something that's were brand new for the court and i recognize that so i don't have a ton of cases despite i don't think the government has done a case of the site the other way and i really think when you get down to first principles if you consider first principles you know randi rosemont these cases really do you bend our way so if there are end up agreeing that at least one but not all of the hobbs act convictions should be reversed based on the jury instruction argument you're making or what is the what what what should we do if that's where we end up so you want to it if you if you affirm two of three right now i mean i guess if you did that i would i would think we would get a new trial the third that makes sense well that's what i'm asking i'm trying to make sense of it that is that if that's how it's played out to me it seems like an all or nothing thing but if you're going to send one back for a new trial you might as well send him all back but because if you're talking about the same instructional error i mean i guess you're telling me you think one of is not harmless to in kansas city there's this practice with the prosecutors finding sufficiency of the evidence cases in trying to inquire after that language in the jury instructions and this is sort of the protocol example of that this is what happened in this case it happens all the time court says we're going to take all of the evidence you would in the light most favorable to the government and determine whether it's good enough to pass that super low burden to see that you take that language and then use it to instruct the jury in the first instance really means that what you're telling the jury you're essentially instructing the jury under the premise that it's going to review view the evidence so i'm most terrible of a government that's certainly not what should happen so it really is that simple and you are reserved in time for battle but in this case it was the nine twenty four c is so important because it adds so much time and there was evidence about this not being a real gun it really was vital that the jury determine that issue in the first instance and we think what the prosecutor did it just was very unhelpful it was not right certainly wasn't the law and it was confusing and it was done right it in the trial and we think was super said after this happened i thought it was a b b gun and i thought it was become because the way it law looked any test by the new guy mean i think that is really strong evidence that meant that there was doubt that the and i think what the prosecutor said basically negated that defense so i think this this case is even worse than the one that came before if you surveyed of what it was saying robson mark was that the jury us and what he decides to say two years later as a government with a witness is beneficial to the government now that the jury can believe either one of those we're not saying that it can't all we're saying is that the jury shouldn't have been told that it couldn't accept it that it there the possibility that it was fake isn't a reason to acquit because it's most certainly years and it is in the context of a witness who made a statement that it wasn't a real gun that man please the court my name is carrie kaplan i represent the government on this appeal and i guess i'll start where i was in council left off on the issue of whether there was misconduct or not during the closing argument and here there was no counsel raised this argument that unless you have it really came down to a you just never know unless you have ballistics unless you actually have the firearm a lot you have evidence of holes in a wall you really can't trust the appearance you actually need to have the weapon in evidence or test it and that is what the usa was responding to this argument that there could be this theoretical possibility that if you don't have the gun here i evidence then you just cannot ever ever comes except on a nine twenty four c without the weapon in evidence and that's what the response was here it was a response to the argument you just never know and it was consistent with what the judge instructed the jury in the reasonable doubt instruction and that instruction as opposing counsel concedes in his brief was a follow this course pattern instruction on reasonable doubt you can see concedes that that was the correct instruction and there are the court instructed the jury part of that brings the instruction that the law does not require proof that overcomes every possible out and that is is what the prosecutor was trying to bar is the prosecutor then immediately restate the burden of proof the government has the burden to prove the defendant guilty on every element beyond a reasonable doubt including that this is an actual firearm so the prosecutor does not shy away from her burden she actually embraces her burden and then she makes clear to the jury we're talking about theoretical possibilities and the government doesn't have to view a theoretical possibility it's just reasonable doubt here  so i think that is what the prosecutor was responding to and when viewed in context there was no improper statement made here and even if there was which there wasn't we have a harmless error beyond a reasonable doubt argument and here looking at the court's instruction they are very clear to the jury from the guy goes that you are to follow the instructions that i get you on only the instructions that i give you not whatever the attorneys the closing argument but then after the rebuttal summation and right before the jury went to deliberate the district court judge gave another short instruction which again included the burden of proof and again clue to the fact that you have to follow my instructions and only my instruction and as this court has stated in a number of decisions that there was a presumption that the jury does follow the court's instructions and letters overwhelming evidence of the contrary which there is not in this question of whether that satisfies crime violence was that was really presented that wasn't argued and so it's still open to this panel to look at the i disagree with that argument point out and i think this could be helpful after i mean i haven't really fully developed and exploited this argument but this court case in paris which is another fairly recent case the involving colorado robbery and i do know there i believe it's paragraph in footnote to this court does notes and there the court found that that colorado robbery statute categorically was a crime of nd i mentioned the morning case which states that it's very well settled that whether a crime fits the definition of a crime of violence under perth for one twenty four c is a matter of law and so that would be an issue that the district court judge would instruct the jury on it's not an issue that would be given to the jury as finders of fact to decide and that's well settled so unless there is on bond reconsideration  jury instruction was harmless but i wasn't sure whether you were saying her conceding that there was or so where where are you on that well your honor was very perceptive on that  that is an element now in the guard cabrera has made that clear so i mean i'm constrained to agree that the jury has to be instructed under hobbs act robbery that they might find that violent force get to the different counts and seems like especially on count two i've been watching that video and i'm just wondering why it is harmless beyond a reasonable doubt on that filed discussing you know tasers are here i think that helps us a lot there because it talks about force resisting force overcoming resistance and i also was watching the video right before coming  and not doing anything they are using all of their strength you can see the entire body leaning back we hold it in or she is using all of it the strength in his body to keep these two men out of his store because obviously quickly get back in that store and pick up that cash drawer that they drop so it's clearly a struggle over property so it clearly falls under the statute and they're using all the two men on one side and then the clerk on the one side they're using the requirement for a violent force and so that's why i would say all of the hobbs act robbery conviction should be affirmed even if the there was instructional error because there was no violent force interpret intimidation is going to force them to say that that individual statute didn't need didn't have this sort of argument is just to beg the question whether a statute that has the sort of force or fear of injury because the statute is indivisible there means the question is will it whether one of the means is not force and if one of them was not forced then the individual statute is not does not have an element of force that's the basic make the argument doesn't mean that mr jefferson who preserved the argument below shouldn't get his day in court in the end of the day we we made this argument below we shouldn't be at a disadvantage because some other attorney came before us and it make it i mean mr jefferson serving you know thirty years in prison on these nine twenty four c counts and we think we have a strong argument that he shouldn't be and the thought that this court wouldn't address those arguments because some other cases came down that didn't address the arguments doesn't just sit well so we have this court to address the argument taking this very calm then hopefully agree with those reverse nine twenty four c convictions and whatever else