brown knew when she drove the car that a bank as distinct from some other place would be or had been wrong and it is insufficient for the government to introduce evidence that points equally or nearly equally to knowledge of a robbery of a bank or of a gas station or a residence now the fact also sticking with the disputed grounds over a car boyfriends to the right or for his friends in the back they stopped at a gas station around went in made a purchase actually didn't pump the gas they drove on the drove into a residential neighborhood and brown parked the car in the residential neighborhood it is undisputed and this bears emphasis undisputed the brown could not see the bank from her parked vantage point two megs of the decor wearing all black they walked away from the bank and deeper into the residential neighborhood and out of brown sign brown then telephoned her sister in florida had a conversation lasted nearly ten minutes then ran back to the car emerging from the side yard of another residence got in the car d carrying cash around drove away the men changed clothes now boyfriend who was the lead and she spoke to mr young as well they drove past the back there was what is there to suggest that there was any other possibility but robbing the bank that she just drove by come around through the neighborhood to park within a minute's run of and then when they ran to her carrying cash bundles and front of them what does it suggest was anything other than the bank robbery that the district court charged the there was no evidence that round engaged in any conversations that was addressed specifically a bank robbery no phone call the contents of the phone calls on no this case is entirely well you can see it in your briefs that you could infer from the the frequency of the phone call so difficult that occurred before the robbery that they were discussing plans for the robbery but then you say but these calls were about the robbery of what you say it might as it might have been a convenience store it might have been a residence but if it's evidence that they were discussing plans for the robbery in advance isn't the robbery the robbery that actually happened which is the robbery of the bank why would they be talking about the robbery of the convenience store if no one ever planned to the convenience store how do we know no one ever planned to rob a convenience store we don't see the circumstances point equally to three targets of a robbery and in fact around two of these men leave her car and walk into a residential neighborhood and then sort of them emerge from the side yard of the residence i suggested so it would be only if the only information that brown had was was whatever she gathered from sitting in the car assuming that she was totally ignorant of what she was doing there how she got there and so on maybe that's race that if we have evidence that they discussed plans in advance why isn't the natural inference from that that they discussed plans about the things they were planning to do which is to rob a bank because you don't have any evidence in the record your honor of a discussion of a plan to rob a bank there is no is there a discussion of the evidence of applying to rob a convenience store you know there's no discussion of any evidence there's no evidence of any robbers had cooperated with the government and taken the stand and said yes we told her specifically we were going to rob a bank fine i'd have no argument about sufficiency because the jury could have believed that but there is absolutely no evidence the ground discuss anything and therefore the case is entirely circumstantial and i suggest to you that the circumstances indicate equal possibility or plausibility of three targets of a robbery and in fact i think the most plausible is that the robbery a residence because look at what she saw she saw these men walk into a residential neighborhood and then she saw as an emerge from the side yard of the residence and what did she not see never saw the bank could not  that's not quite accurate right because she drove up south toward avenue whatever it took a left of the street where the back and the back parking lot were located they drove past the fact that they that they don't actually propped yes what i meant  from where she was parked she could not see the bank and she could not have seen them exit the back they did drive past the bank but they also drove past many residences and this convenience store and probably a few restaurants and lots of other places  just driving past somewhere it is not an absolutely no basis to infer that that gave her knowledge of that particular twelve was a girl as she was riding in a circle around the bank and then they go from the front of the bank themselves in appropriate distance from the bank in order to effectuate a robbery well ok but they drove that equally can be argued about the convenience store absolutely the same argument can be made about the convenience store they drove around the block that they could the robbers could actually run back to the car the same thing can be said about every residence on that's every residence on that street the problem here for the government is that the inference and allow jury the evidence was sufficient to allow the together when she came when when when the two robbers approached the car one was carrying our bundled up cash said as i understand it was not in a bag that yes that is true but that could have come from anywhere in there's no reason to think that a bundle of cash but not of come from a convenience store gas station there's no reason  cash even even bundles of cash that are wrapped with people straps yes absolutely there's nothing on this is one bundle that of course i have to assume taking the evidence in the light most favorable to the government i have to assume that this a money launderer can have a strap lot of cash with a strap around it that says two thousand dollars that could have come from a house that they robbed that could come from the the gas station now contrast that with another bundle honor thank you this morning your honors may please the court my name is emily dining and i'm an assistant united states attorney for the southern district of new york i represent the government on this appeal as i get it during the trial below the jury's verdict here was sufficiently comported by the government's evidence and further bolstered by brown's own admission an incredible denial a reasonable juror could have easily inferred that brown knew she was participating in a bank robbery noticed that phrase in your brief also the classic trappings of a bank robbery which seemed to me to be the black pants of black hoodie and you know a robber looking period but  a convenience store would use the very same things that really sure you know you as as well as retrieving cash it's bundles like that but you know the money that has been just withdrawn from the bank also and put in a trappings here are not limited just to the gun and the black masks and black clothing which they use to disguise their appearance but also the cash itself and i want the record to be clear here defense counsel has suggested got there's only evidence in the record that one bundle was rocking the bank strapped that data came from key banc but that's that's actually not correct i was a trial counsel below and i can represent to the court that the full quantity of the cash that was recovered from the car was admitted into ringback evidence as government exhibit three and that fast cash was in the same condition as it had been found in the car that the majority in a majority of it was wrapped in bank straps of different colors indicating quantity and i thought i mean so i thought it was put this is just kind of i thought it was put in the bag it was found in a bag in the car there was evidence however that the robbers had run to paris specifically had run to the car carrying it in his hands and so must have placed the cash in the bag when he reached the car and  included civilian witness testimony that she saw him running with it in his hands and also the cash dropped all along the route between the bank and the car and indicating that the cash had not been fully secure at the time that they're running but want to get this this happened fact robbed the bank but that's beside the point because i think the government's position be that a very specific plan was to always to rob the bank and not some other target if there is more than ample evidence supporting an inference that brown was part of and knew in advance of the bank because because there is evidence that brown was discussing plans with them right there was discussed that the brown spoke on the phone with young which is the st time she'd ever discussions the substance of which we do not know the government didn't prove involved the brain that right well again there is there is evidence that the s paraffin young was to rob the bank based on their conduct in the bank and the fact the place where they chose the getaway car had strategic advantages specifically to the bank as a composer as opposed to any other can reasonably infer from the fact that they had a plan to bank robbery bank and hertz and the extensive evidence that she was involved in whatever the plan was in advance that she knew what the target of that robbery stefano where there was evidence that the individual who we found this condition we found supported by insufficient evidence had actually cased the bank been before i guess i believe that to stefano although tim although obviously it involves a bank robbery the fact into stuff you know otherwise really aren't all that similar there was no evidence not keep the defendant knew there was going to be a robbery of any type period the fact that cooperating witnesses testify in that case was that they purposely never talk to the defendant about the fact that they had a robbery point after putting up with it the very morning of the robbery  and that she was not there at the time of the actual robbery there was no particular party don't have to be there in order to participate diminishing that that could have been a material advantage to them to have her information they gave her about how things were positioned in the bank and the fact that she was kate described as casing the back to just that she didn't know what the plant was well i think the court my understanding is the court in that case actually found that there was no evidence she knew she was casing the bank because they had not told her what the plan of the robbery was and well you don't have to be paraffin young talking about robbing the bank which she thought they were joking and i guess i have two questions one is why didn't the government introduce that evidence and it's key soon it's in its affirmative case process from that evidence well i think you have inconsistent statements obviously about whether or not she heard them talking about robbing a bank and well that isn't direct evidence that she did hear them talk about a bank i think the jury is entitled to take into account the fact that her statements are inconsistent way that in finding that her gentle testimony is not credible and specifically that her denial that she ever knew about a bank robbery is not attempted not to find out whether there was a bank robbery with a target was it just that she never had any idea what the plan was or that there was going to be a bank robbery very good i think that credibility the government made a tactical decision that they didn't want to fight the motion to suppress and therefore could only use brown's post arrest statements to impeach him find this stuff with the consequences of that tactical decision which means that evidence was the robbery with paris and you know in advance and then the jury sees her lying on the stand claiming that she never had a conversation about those plans in advance doesn't that to what you said what you said a moment ago which is you know that having the communications with harrison young in advance suggest they were talking about their plan but maybe the plan was to rob something else like a convenience store or whatever but if she's on the stand and we know that she's not credible she's lying when she says she never heard them talk about a bank robbery doesn't that bolster the inference that when she was talking to them about their plans it was about the robbery that happened with was the bank robbery no it doesn't some affirmative evidence to which we which the lack of credibility supplements and you simply don't have that here now let me turn to a couple of the other points here judge carney mentioned the final i suggest to the it's it's very likely that they did that they discussed the bank robbery but that's not enough we don't put people in prison because the evidence is very likely they have not proven their case beyond a reasonable doubt now if i may just by chris so i think you have about thirty seconds left just let me scan my notes right this whole bank strap issue i'm going to make a point here one is a total i have to for this bank's draft point was   let's go by the arguments that were made here and i think there's no way of mr caruso i'm going to keep your time we have junk briefs i thank you for your argument thank you know it's been a very interesting unique experience on the phone  glad to have smart both arguing