one is a bank robbery in september of two thousand and eleven and he never admitted any thing to do with that in the other is a robbery allegedly affecting interstate commerce of a smoke shop which he admitted as far as being the person who  involved in that robbery but but defended the case so hard for him not to indeed it would have been foolish to try my purpose in oral argument will be to show that both of those convictions should be reversed specifically speaking first of the bank robbery because it was not properly tried it was tried together in an improper way with the smoke shop robbery too dissimilar charges to belong under rule eight a in the same trial the smoke shop hobbs act conviction for the interstate commerce issue is reversible because the jury instructions took away the one thing that my client did argue at trial which was that the interstate commerce element was not satisfied in the case kind of remarkable that those instructions were not object i understand i would have to agree with that because every case where plain error is found there is also a failure on the part of the advocates it really cannot be laid entirely at the feet of the judge that the advocates always start off as the responsible ones they should have spotted what the merits of that argument would be but i think really for our purposes it's a question of plain error which is obviously a much higher standard it's not something that can be expected except in cases where the effect of the  honor first of all the i would have a proposed two reasons why the error here was not harmless one was that the prosecutor did exactly what the jointer rule is designed to prevent or missed jointer rule is  is offended by which is the prosecutor used to the bank of i'm sorry the smoke shop robbery as proof that my client committed the the bank robber he said basically if a guy's going to commit this this smoke shop robbery for a few hundred dollars he's going to do the same thing for a few hundred thousand dollars if he's going to rob a bank if the cases were separate that argument could never been made there was no evidentiary overlap there was no connection under four hundred four be ever even attempted to be drawn by the prosecutor and in fact the prosecutor toll the judge in pretrial proceedings that two were unconnected that the smoke shop robbery had no connection to the bank robbery and with respect to the bank robbery the reason why it was hurtful to have that smoke shop robbery used against my client was because the all of the evidence the only evidence against mr hatton came exclusively from th people who had already pleaded guilty who had definitely committed the bank robbery and were testifying under agreements that promised a significant benefit to them in their testimony there was nothing to corroborate it there were no fingerprints there was nothing found in mr hatton's home to suggest that that he had had anything to do with the bank robbery all the evidence came from miss will host he so she was the the kingpin  there was no prior statements offered against john happened and it's almost i think it's extremely rare when there's nobody who comes forward to say yeah i was talking with john and he told me such and such this procedurally what if we were to disagree with you on your jury instruction issue but to agree with you on your severance issue would we only reverse the one i think that was there an objection made to the er request for guess what the judge said the judge said no that he would not under sever but didn't explain why reason at all none none stated their limited instruction  there was there was an instruction the typical instruction where the judge told the jury keep these charges separate consider them separately i would submit the prosecutor circumvented that by arguing that no keep them together think about these two as a unit and that that was improper as to the jury instructions i think that the smoke shop robbery is infirm and should be reversed but on  the question a plane there is did it affect the outcome and did it affect the fairness and here the only thing that the defense argued at trial was interstate commerce that was the only issue and it was not i but let me let me ask how many times the court has ever had a case where on the interstate commerce issue the victim the store shop proprietor did not confirm in his testimony that he purchased products that were made outside the state of kentucky he said he didn't know it's yet but you can still not know in the jury would make that's i guess what the proper intent of that instruction was was that if you found something like this that would be enough r now but you know given the broad interpretation of what in or interstate commerce is under the but allow me to submit your man understand you could get a jury maybe to disagree and i'm fine in the other way almost have to be it was through misunderstanding to go except if i make your honor there was never any proof as to the amount of money that was in the cash register at the time that john had was there i think that's that's the most that any robber could have gotten away with there was no testimony about whether maybe the owner had a safe and kept most of his extra cash in the safe the owner was never asked how much money was in the in the till the prosecutors a few hundred dollars being at issue in terms of the theft the defense and i don't know where the trial attorney got his number but he said it was forty five dollars the question as as this court said in the brown case which is cited in  the united states brief brown says can it be shown a reasonable probability that if the the that that the crime would have so depleted the assets of the victim that the purchases of inventory would have been affected that really was never shown i would submit that the loss of a small enough amount of money not not that is to be excused because it's just a few dollars but that the loss of a small enough amount of money does not affect you should get looked at one place i think if let's see my brief pages ten to eleven has the my first brief has the the instruction where it says in determining that whether the robbery affected interstate commerce you should consider that a portion of goods sold or shipped from outside makes it sound like they were shipped from outside yes something like you can you should consider that if you find yes that a portion of the goods sold were shipped from outside the state of kentucky and sold in this state or that a portion something like that then it would be ok it would it would have and it's just hard to imagine that none of those things were not the case well as opposed to other how much money was in his box are you with me yes or the defense attorney when it says portion of goods sold that doesn't mean sold to him just means generally sold there that would be ok if they said that if the jury found that a portion of the goods sold by the smoke shop were shipped from outside the state of kentucky you've got a pretty big hill to climb to say that a jury is going to find no portion of the goods sold in a small shop in louisville were shipped from outside the state of kentucky although i well that obviously is is the case and i wouldn't suggest otherwise except that the  the question is not whether that that business had products from outside the state but whether the crime would have affected his purchases of products now the fact that he buys products that are manufactured outside the state suggest that if he loses enough money he's not going to buy products that are better manufactured it or he's going to buy fewer products manufactured outside the state and there's the effect of interstate commerce and what the judge's instruction did was basically took that my time is up if i could finish it there was no i would say direct evidence no proof although one might very well infer that was no proof that the shop owner lost any business or that the people who didn't come that night wouldn't have come the next morning that there wasn't maybe just a tiny tiny gap but through that gap a reasonable error could have immerse had the jury instruction to do just briefly this substantial assistance from the spouse issue yes  very briefly so certainly outline of your argument that the judge basically said if if there's no five k motion from the government i cannot consider substantial assistance rendered by anybody i think is really what the judge said that's incorrect the judge can consider both the defendant's own substantial assistance and in this case it was his wife who came forward after he was arrested for the smoke's of robbery what happened yes or for the idea that that would be ok under thirty three point five three with respect to the wife you know there's a back to the wife where there's no evidence that he caused the wife to give systems i do not have a case that says that i would surprised by analogy that i think just the sheer breadth of thirty five fifty three in the fact that frank language and thirty five fifty three most supports the nature of the crime or nature and circumstances of the crime isn't the nature and circumstance of the crime when when she's giving help with respect other crimes yes but so how can you tie that argument it's an interesting argument  of the crime in that the characteristics of it i think that if you take a larger or larger view just as every judge does the judge basically looks at the defendant from date of birth to the president turns of trying to decide what is the proper punishment for this man or woman i would use language and i have thirty five fifty three in front of me but there's language which suggests that's appropriate or permissible and what language suggests it's permissible to look  help to the police from people who are in support of what they look for instance somebody in california say i can i i help the police capture somebody please use my credit for doing that or for my brother in new york i mean i don't think any judge would go that far i would guess i'm trying to tie that limit to the language of the statute the stat well wouldn't cover three five five three lissa lot of things but it would cover that w well i wouldn't cover what you're talking about that's my question we want to encourage people to help the government that's why you want to help people in los angeles to help the government but five k exists so that the government can reward people who help in there is there is certainly precedent for the government asking for a downward departure for this man because someone else had on this man's behalf rendered substantial assistance i agree that there is a concern about whether one truly motivated the other i would say in other words that that the wife just helped for no reason to connect or has literally doing it to help her or at least wants it to count yes absolutely and we want to encourage that that that's why we have done but you don't want to encourage it when it's as distant as what i just know snow and a judge would be good to encourage as well right well under thirty five fifty three i think a judge has only can only go so far afield and i think this court would say that's doug government doesn't request it and so really there's no way in the sentencing guidelines that i can see that that sort of reward could be given it's only a variance under thirty five fifty three th it down because it's written in the disjunctive there are four really circumstances in which joyner is proper one is same or similar character to is same actor transaction and the third one can be broken down into two more because it's this is where we get into the common scheme or plan but one of them is is connected with a common scheme or plan and then the second part is constitutes a part of the common scheme or plan my colleague on the other side here is focusing strictly on the constitutes a part of a common scheme or plan where as we can also show proper joinder by showing that it's connected with a common scheme or plan in the indictment in this case shows that connection in that john hatton was a robbery and john hatton in the smoke shop robbery and i'll get to robbery in a minute because again same or similar character but if we can focus strictly on the contributor connected with the superseding indictment shows that john hatton was a part of this bank robbery and other business conspiracy with wotcha hobbs and the others but when he got arrested on the smoke shop robbery that affected the conspiracy because they had to find construed in favor of joint or and if we construe out any connection with a another crime it's in the indictment then we're violating that basic rule so saying that to  crimes can be tried together because each one separately is connected to a third crime that isn't being tried together yes as long as this i'm sorry that a little bit of a stretch no judge me what happened here is you had a whole bunch of things that were tied together in some sense and then a month bunch of them went away from one reason or another and you're left with the yes judge but no and that six circumstance though were out of rule eight because we look at rule eight in terms of joinder and if the time of the indictment when it was indicted was it properly joint if something comes along later to say that these two really shouldn't be tried together then  and we're talking about severance discretionary severance based on prejudice and mike on the other sad to not raise that issue the roof fourteen issue maybe because they didn't renew any rule fourteen motions at the into the proof in this case so they they don't have that issue that's not in this case the focus here has to be on at the time and all of those things are within the yes your honor so looking at it that way we have not only robbery and robbery same or similar character same actor same modus operandi good hooded sweatshirt intuition into a store into a business with a gun whether it be a business as a bank business as a smoke shop or in with a gun those are also very close in time within a month of each other but we've got certainly without doubt that connection with this even set out in the indictment so these were apologize for that mistake in our initial brief but we wouldn't give that up altogether and i don't can see that altogether that he didn't have an accomplice there are reasonable inferences here that he had a few male accomplice in this whether it was that woman who was in the store who we never identified or captured so we don't know whether she was an accomplice or not there's a reasonable inference to be that she may have been but the strongest inference is that sarah hatton was part of that robbery because if we look at the timestamps on the pictures  that my colleague here put in his reply brief we see that the timing from the tam that he made his phone call to his wife to the time she entered the shop was was within just a couple of minutes two maybe three at the longest so she was there she was there close probably the getaway driver and a reasonable inference that she was the get away driver so yes there is an inference to be made here that he also had a female cases well there's an additional parallel that there was a woman involved or some well that he had a woman accomplice that was the that an accomplice to help him out with this robbery whether it be coming in with him or or having a getaway driver in the original didn't have to be a woman in the original i understand the red bank robbery he had a right if they were in two very different ways yes yes i agree certainly there are differences but the rule doesn't say if there are any differences there's there's no jointer because there are always going to be differences and again we construe this in favor of joint or for the efficiency of trials so we've got joint or proper joint or in the beginning we never get to prejudice death row fourteen we're in a different rule the only way we get to prejudice is we say there was a mistrial to begin with and then we're talking about harmless error and then our burden is to show that there was no effect on substantial rights which we also believe that the  record here shows that that there was there was not because of the strong evidence involved we again are prosecutor made a very bad argument wrong argument in in the case and that's something that we've discussed and and believe very strongly it was taken care of but despite that argument the judge gave limiting instructions as the court has recognized several times and the defense  stressed evidence of one of if they had been tried safely could evidence with respect to one of these had been used in the later prime possibly the bank robbery had been tried separately i guess my question then is could the smokehouse robbery have been used under any evidence if it's possible under four or four b but i strong evidence so you know but i did do is get the smoke house robbery away from the bank robbery not the other way around that's right that's right back that there's other bank robberies i don't see how that the fact i was just discussing what we would have used in a separate trial whether we would have used that that one or not and i'm saying we probably would not have it's not that strong evidence of any proper the proper factors under for a four b either way the argument was a wrong argument whether wouldn't have or or couldn't have doesn't that go go to prejudice just saying we can't look at prejudice because that's rule fourteen rather than well you only look at prejudice in terms of whether a defect is substantial right if we go to harmless error analysis if we say it was mis joined to begin with only under harmless error analysis do you get something akin to prejudicial prejudice looking at prejudice and that is whether defect is substantial rights and i guess my question is why wasn't trial doesn't necessarily mean it but it leans in that direction doesn't mean it's a factor but it's not a very strong factor big especially when you compare it to the factors of the strength of the evidence on the bank robbery and when you compare it to the strength of the structures that the judge gave to the jury when you compared on the strength of the argument evidence on the bank robbery that it was once the strongest thing that compels us to conclude that the strongest thing is that his cohorts testified against him and said that was him the colleague makes some good points about how the video isn't perfect because of the angles in the stretching out but we had evidence from the tellers about how tall they were and they could compare the person in the video with the tellers that he was accompanying in and those sorts of things but the strongest thing on the teller testimony is that they could see this part of his face and that the teller described his as and particularly the color of his eyebrows which matched john that that bank robber apart from the smoke shop robbery if i'm not sure why you gave up on the fact that you could use some of the similarities you know separate trial under or b well i didn't give up on a judge if i sounded like i did i  those similarities but my argument was that we had so much stronger evidence from other robberies he committed with watching hosking that we probably wouldn't have used it but we could have used it unless my colleagues have questions  consider it or not is is an open question in this circuit this court has never ruled on whether a third party assistance can be used to give a break to a defendant i agree with the look at the nature and characteristics of the defendant and i think part of that is what he did to help he's a helpful person is something about his nature correct and it is in the gadgets sure and it is in the guidelines itself there's acceptance of responsibility and then of course there's the substantial assistance departure that requires our motion but the god is themselves recognize that that's part of the factors that the judge can consider in the sentence so in those in the guidelines of course are based on thirty five fifty three in several of the statutes and twenty eight i know it's very or is it your contention so i understand what the nature of the are in this is your contention that even though under three five five three it makes sense for the individuals in nature that we look to whether he's helped but it doesn't make sense to look at somebody else's nature to see where so therefore it's not it's categor i don't know that i would say was categorically not admissible but i would say this is not the case to make that decision because the other cases that allow it most emerge from the eighth circuit and district court cases in the eighth circuit they look at what the defendant did to did he didn't give any help at all did he was he responsible for the third person helping him my time's up can i finish that thought that relates to the i to the limit implicitly in three five three is th looking at it in order figure out something about the individual defendant or not looking at it just to see whether the government was helped or not absolutely judge and so the fact that it might be permissible if the united states made a motion under five one point one doesn't necessarily mean it would also be permissible as a variance under thirty five fifty three here under whether your argument there though is is in the interest of the government isn't this making it harder for you to get assistance you could go to someone and say look you're us once in jail because you know we might be able to cut him a break if you are the judge may be able to cut him a break if you help us now that you can't do that now right if we rule your way in this case in a published and if you rule that the third party's assistance would not be something the judge could take into account under five one point one or two hundred thirty five fifty three he what you're asking us to rule as long as that assistance wasn't obtained by the defense right yes judge i think that the cases in the we would be arguing that the a circus reasoning makes sense and that we can go along with that and said what circuit said you could use this yes and those were on the united states motion but all those cases are five one point one cases i believe  and i know my colleague will correct me if i'm wrong on rebuttal but i believe all those war years government motion if i understand you correctly it can't be in five k unless somewhere in three five three because the whole guidelines are and are intended to make t how to construct the guidelines and what's important to the congress to be in the catalans so and the bottom line here is even under the most generous view of the law toward the defense  permissibly taken into account it has to be help from a third party that was somehow pained by the phone either encouraged directed by the defendant or key got the ball rolling by some cooperation on his part thank you ron we've gone long and if you'll give me just thirty seconds maybe to touch i just want to hear your answer and i'm sorry i want to hear your response please proceed oh thank you ok it's on the roof for b question could that smoke shop robbery have been used as for a for b evidence i can see a prosecutor submitting it to a judge i cannot see a judge agreeing if there were just the prosecution for the bank robbery the second robbery was not a signature didn't use the same notable things you couldn't possibly make a connection as far as identity is concerned the motive if anything the the later smoke up robbery suggests that he he didn't commit the bank robbery because he would not if he had had sixty thousand dollars he would have been motivated to knock over a small smoke shop that was the only thing i meant to