motorcycle were engaging in conversation with the purported seller of a motorcycle and apparently a third individual was alleged to be a lookout a little further down the street during the course of the transaction one of the two men sat on top of the perp like gun and an observer across the street who was related to one of the sellers sadly and unfortunately shot someone in the area the police arrived within approximately thirty seconds and found my client a pellet much sanders why on the ground in a pool of blood the a gun was a basket case sort of redefines add insult to injury it really does sadly and at the time mr sanders was only nineteen years old then unfortunately as a result of the shooting is now blind in both eyes and have to live that way for the rest of his life but the legal issue has to do with his distinction between foreign commerce intrastate commerce as it does your honor and that's primarily should i anticipated and in my correction reading that that seems to say that even though the words used here in aruba different we're going to read them as a in our statute that in section ten that even though the language is not precisely the indication of a non exclusive list whether that can fairly be read to expand the definition of foreign commerce to be broad enough to include honor if that's the case it would make the use of the word interstate commerce a purpose we have to assume that congress uses words intentionally and that there are distinct and different words used in section twenty one nineteen and would it be super of circumstances so if you are if you are correct on this what's what's her motive analysis out of me how do we proceed on i'm sorry i did and yet i don't know how what is the method of our analysis under your point of view then that i think it's a you have to look at the evidence that was presented by the government from the perspective of the indictment of course only alleges and impact on the interstate commerce allan it and i'd respect trial in terms of the elements of the offense when it's really i submit a fatal that's a very it's i would say your honor and i would say this is different than a variance this is something that is a lead to any indictment it's elemental  turns on the fact that for congress was not mentioned in the indictment because it wasn't there was a constructive amendment to me and i was a bit yes that's in a nutshell that's the  judge's instructions and the judge said this had to travel in interesting commerce and the reason gentlemen the jury to pay it is not a state of the united states in which this did traveling foreign commerce i'm not accepting that it did but if it did it's immaterial and requested there in that sense so do not know unless we find according to your contract unless we find that this is terry concept and that the terms are interchangeable you will prevail at least on not i don't want to use the term too loosely rocket science in the sense of the indictment alleges are we interstate if the government provides alternative options for the jury to base it on which to base its verdict understood and the other cases that are not putting aside for a moment the issue of the standard of review here it's a very simple principle that the government has cited its brief in water he did a and that is if something no matter where it was manufactured came into a state it had to congo into that state from a place outside of that state whether it was japan or whether it was new york came from a place outside of pennsylvania into pennsylvania on the date of the offense now are you saying you prove the interstate commerce i think we d didn't see that anywhere in the record i saw your pay and i saw florida congressman i didn't see interstate in the record dependent pennsylvania well yes yes you are i think under the principle that interstate commerce and someone commerce unitary concept was that as long as you prove one way or the other you have proved an essential element of the case it doesn't mean they're the same thing doesn't it well i think that there's maybe a distinction here from the government's but it seems like a mistake was made was it not frankly your honor i'm not in a position to to to tell you why that decision was made i was not involved in that decision at the time the case was indicted but frankly your honor whether it was in stake or not whether the government had been guided on foreign commerce interstate commerce or adopted the exact language of the statute really had no material impact based on the precedent that's been established in many circuit courses courts looking at the same exact language way that provision defines for the purpose of firearms offenses interstate or foreign commerce within one set of quotation marks defining it in the singular as the term or the term as opposed to the stack that we have which separately in separate paragraph sets out definitions for interstate commerce and foreign commerce they are two separate terms they each between any place in a state and any place outside of the state so putting aside for a moment punctuation the actual syntax is exactly the same in it to sack shoots and i think it's important to look at the time period when congress pas the carjacking statute i think it's fair to assume that congress knew a lot he would be sort of looking back to the firearm statute for the same exact language to inform as to how statute in the same exact language is used to grow and it's really a trap for the unwary if we're to to look at the carjacking statute and think that it has a materially different definition then in the same language used in  unitary term and it's mom is something that government proved beyond a reasonable doubt a trial that something moved from outside of pennsylvania into pennsylvania whether it came by way of japan or ohio something moved interstate  was an alternative basis of jurisdiction in the statute where could be charged under for commerce or special territorial jurisdiction and there the court found the fifth circuit found that there was a construct of a man who is the defendant had been properly put on notice months before the trial and we saw a stipulation and then more immediately before the trial when there was the notice the expert notice was provided all right so it appears you put them on notice if you did there is evidence of record that you controlling precedent but persuasive authority from another circuit is found albeit with different statutes that the same exact difference in that young case interstate commerce was charged for commerce was grooved conviction resulted and the defendant appealed stating that he had been on notice of foreign commerce in that case the gun which was manufactured in finance and it ended up in texas so it's really an analogous situation i would think that that would be persuasive why would the government have just conceded that point it allowed for in commerce to be taken out of the jury instructions after just sitting through a relatively brief trial through government proof or honor only because i think it all falls back on to a unitary concept that it does but it doesn't really matter and i don't mean to be glib but it doesn't matter which word is invoked in the charging document whether it's interstate or foreign or which makes the two terms mean the same thing that's the government's position in this case rather if you were wrong about that and listen at trial the trial judge had charged interstate or foreign commerce leaving the alternative grounds there would be a proof problem but we have the same argument that the court confronted and sharon how do we the stream movement of steel i think that's different than what we have here i understand that there were two different variables that that is both it was saying versus i guess concrete and importation versus exploitation and i understand that that's a complicating factor that's not present here but the bottom line is still the same you would still have a defendant argue with the ref to guess where the jury decided i was guilty that it did shows i mean i think that we can fairly infer that the jury saw interstate and foreign commerce fungible as well or they saw a carjacking well yes i agree that identity with the same approach that says that congress always means maybe something really bit more generously read than what they perhaps precisely wrote making we rigorous we can say that yes we think that the jury fully appreciated what the court was trying to say even though the court said something perhaps more expansive like well i think very clearly the government did explain to the jury what the elements of carjacking were and that the jury found the interstate element as charged by the court after hearing only evidence of foreign so and they had an opportunity to ask a question the judge even referenced that during the jury charge that really fun for common isn't that what the government's trial were argue your honor yes but that based on the argument from or from questions from the panel that wasn't what was indicted that wasn't what was charged to the jury so if the jury found foreign commerce or not interstate which was presented to them in the case has to go back again your honor i would fall back on the position that that it's a unitary concept that that the terms that were used in the charging document whether it's foreign or interstate they have the same meaning for this case and other have danced around the issue that he identified the fact that there was something mentioned in the indictment and something different was proved interstate an indictment for congress proved at trial but constructed mend it was never discussed and never put the district determining the standard of error again rests on finding missing one terry concept i think so your honor i think that would be the government's position just in the heat of the moment at that point probably didn't use this or the words but i preserved the argument i put the court on notice of what the argument was rather than just use the words instructed the men it would be form over substance to not i told the court exactly what the issue young where here is assuming as the government did that another section in a different chapter which has a definition applied to a completely unrelated chapter in which congress chose not to cross reference the definition and that's that you i think that's the trap for the i'm wary with respect of being on notice of the attempt to prove respectfully the government the only thing that the defendant has to rely on for the notice of intent to prove something are the elements of the offense as alleged in the indictment constructed by the grand jury the government can't just change what the grand jury under the fifth amendment did constitutionally by suggesting we're going to prove something different since you have notice of it we get the right to change what the grand jury did and to change the can just grab the ball i have that we've and again what i believe i said in terms of that issue was that fault of the defendant and he wasn't on notice that matter he was but the only notice it's important is that which is constitutionally provided by virtue of the indictment but does that does that you should notice then come down to was is rosenthal's question seem to probe our decision on the entire unitary concept because i think clearly if instead of using the words for congress in your state congress will use the words intentional and reckless