and i want to make as the key point and sort of an overarching point on this appeal that there was a singular fact that drove every important aspect of this prosecution but it was a singular fact that should not have affected anything more than the question of federal jurisdiction and that is the fact that the victim the alleged victim in the indictment was a federal law enforcement this was a prosecution because of that fact that became engulfed in a highly charged pretty emotional atmosphere there required from the prosecution and i can say this is someone who was a federal prosecutor for almost two decades meticulous care that it not become inflammatory that that jurisdictional fact not drive the arguments the cold evaluation of facts that was required and certainly it should not have driven the sentencing confess some confusion this is what your overarching point that you're leading with  what argument does this relate to that it relates to the argument of mr mobley's knowledge whether or not he agreed whether or not he reached an agreement with the charge to rob and assault ok but so that you're talking about the conspiracy charge yes the other offenses the knowledge we know as a model matter of such it still matters in the assault charge because well it doesn't it is not the supreme court is already resolved right i mean we get to your i know there's an open legal question as to the conspiracy charge so is that what you're trying to focus or to at this point it's the conspiracy charge that i'm speaking to i think of all the charges against mr mobley that one really must be reversed because there was no proof that he ever agreed with anyone to either assault or rob agent palmer or anyone who was likely to be a federal officer and i refer the court to the united states supreme court decision and feel where there is a very applicable section on that it's that page six ninety five six ninety six where the court specifically says that if the object the person of the intended attack is likely to be a federal officer or would have been a federal officer had it succeeded that creates a sufficient threat to federal personnel and interests to give rise to federal jurisdiction if however the other side of that is the object of the agreement was not someone who would have turned out to be a your client the intelligence that if he'd known that the undercover person was in fact a federal agent of course it wouldn't have done that or he would have been horrified i mean they would rather have reached such i'm going to say that it can't be a crime because of that because he didn't know he was being stung as it were it it just you know i mean it was normally thinking that it was just going to be a sailor when he call up i walked or something along those lines but but then the facts allege that then he decided to make it a robbery but he didn't know it was a federal agent and then it goes downhill from there so i don't that's critical that's now somehow doesn't that mean that's not a crime and it's not the conspiracy that was charged that he was on notice over that he was defending against the conspiracy that was charged was that he with otis mobley and more such as soon conspired to forcibly assault an undercover agent employed by the bureau of alcohol tobacco firearms and explosives they did not conspire or reach that agreement and the agreement involved in the conspiracy must precede the crime i understand that the substantive crime especially because the informant fled the car immediately the only person left in the car was the agent so i understand that the crime was otherwise than the agreement but that's the point you cannot have it both ways i understand how you can construe it the way you did but of course you've got other people that are determining what the fa that the fact that he had a gun could at least lead a trier of fact to conclude that this wasn't just going to be a garden variety target exchange  you know he bought a gun for some reason yes and the reason he can he conspired with somebody else to enter the car and why couldn't the jury assume that there was a conspiracy  to use the guy to take the money particularly since there was no grenade launcher that was rob as i understand it they just came with they got well the jury can assume on him they can certainly infer can they not that there was a preexisting agreement between those two to jump what turned out to be an agent and get the thousand dollars they didn't bring a grenade launcher is that correct no no it's not you know there was no grenade launcher ok so why did they go they were going to they were going to consummate the sale and then having to sell the agent thought they were going to bring the grenade launcher right well i think you're with all due respect with the court is doing is the same confusion that happened at the trial coos are mostly who is the appellant here came with a firearm the sale of which he had already negotiated a week before to that informant not to any one who was going to turn out to be a federal agent but to a street thug that he knew and that he believed to be a private actor he going to sell him the gun wasn't there testimony though that he was also whatever about the gun he was going to sell a grenade launcher for thousand you know the entirety of the grenade launcher negotiations were conducted by his older had arranged the sale of that firearm and that's documented that's how much was the firearm going to be sold for seven hundred dollars ok well they had a thousand you're saying that the evidence does not permit the jury to infer that your client stand i mean i refer you to i have the entire portion of the testimony where he admits that he had the separate well i mean let me just  on the time date place location would take place he then confirmed on the group via text he really did have the money to satisfy the pair and of his brother no he did not say that first of all because he didn't have a brother who was there he said my bro we don't know who that was i see we don't there was no evidence to see who that wanted for i refer you to page twenty two of my opening brief at footnote four where there is clear testimony from aaron mcgruder asked and then on march twentieth appellant my client texted you again and says how much do you want to spend if i find you some guns mcgrew says yes on the twentieth he says seven hundred dollars and the seven hundred dollars was for a gun counts trial counsel asked mr mcgrew that seven hundred dollars was for a gun correct and we grew says correct ok wasn't for a grenade launcher you had negotiated with coup started by a gun for seven hundred dollars fair enough answer from aaron mcgrew fair enough and it was corroborated with text messages that were put into evidence there's no question there's really no question but that negotiation happened for the jury to disregard all of this evidence in favor of what basically is an assumption on their part that something completely different was going on in qusayr movies do you want to research about i'm going to reserve it now i think i am i got through page one of my eight notes so i'll be back fortunately that's why we have bra fisa court morning the morning you're on it's own marduk and for united states sufficient evidence supported the defendants convictions in this case a federal agent testified that he had federal money the jury had ample evidence to conclude that the mobley defendant and his accomplices were working together with the aim of robbing someone and a video leaves little room for doubt was not evidence your opposing counsel as suggested that we got the wrong mobley here rob the federal agent knowing that he had a thousand dollars what would you point to all right well i'd begin with what your honor pointed out earlier page eighty two of the supplemental excerpts of record where otis mobley says when he's dealing with mcgrew because there's no question that they are dealing with about the supposed grenade launcher deal that they mean involved they meaning modus mobley and mr mcgrew feeling all right ok about it so that much  guess is beyond dispute then during that conversation there's the comment my bro's paranoid my bro needs to know that you're serious so clearly he's bringing someone else and there's no question that he's referring to a third party who appears to be the one who's really going to bring the goods and who wants to know that the money is coming to the other end of the deal second of all there's there's evidence from who's our mobley testimony page one fifty three at the supplemental excerpts of record where mcgrew and cruz are mobley are in contact that there are numerous calls right so mcgrew says it's clear that these three parties then are also in contact  this is page eleven of the supplemental excerpts of record he testifies that he was present during the speaker phone conversation involving himself mcgrew and otis mobley where they're setting up the terms of the deal that where who's going to shop when where and when and where then mcgrew there's a text message seventy two supplemental excerpts of record group testifies about he says he texts otus mobley he is third party is on his way to my house so so everyone knows there are multiple parties involved in this deal including both of the mo cousins mr mcgrew and the other person who turns out to be agent palmer invent at page eighty five of the supplemental excerpts of record because again his mcgrew is testimony he testifies that when they got to the deal everyone introduced each other first so this is before anyone gets in the car and before the the actual robbery goes down everyone's introducing everyone else so that so it's no surprise at that point that  launcher so clearly otis mobley is trying to lead the grew on to believe that there is this grenade launcher he's going to get for a thousand dollars and the fact that no great launcher was brought to the scene everyone knew that this was not about this deal to sell a grenade launcher and it i don't think it was a surprise that cruiser mobley is asking agent palmer to empty his  pockets and that he is or mostly is pulling the gun on agent palmer now in the reply brief the defendant argues that well that aaron mcgruder run out of the car at that point so there was no one else to pull a gun on but that's actually not the record and the defendant himself testifies and this is this is cruz arm over his testimony he testifies that where there was a murder i'm sorry i palmer batted the gun away that mcgrew was still in the car so everyone was in the car the jury was heard all this testimony was entitle to infer from it that there was a reason after all this other evidence drive a private citizen privately held fund that it should be the conspiracy should be reversed because they obviously didn't know he was a federal agent yes that's a whole undercover thing so it's that you know that's legally there's no way that fiola can be read to permit that you know but i think she's arguing that yes and i don't think i think that's contrary to feel that feel what cannot be read to say that there can be circuit decision and so yeah though that goes the other way on that if we were to follow so gado instead of the eleventh circuit you the government's second theory for the conspiracy conviction would be invalid and i guess my problem supreme court case on that issue but i'd like to hear your response if if we were to assume that the conspiracy to obtain federal money conviction was not going to be valid theory was not going to be valid here how could we nonetheless affirm on the conspiracy conviction but i would say if that would be a problem if this court were to follow salgado and say that that case is persuasive enough that it's going to consider it binding but  different and actually makes a distinction about how theo applies in that case because of a government strategy that happened in that case in install gado there was no money federal or otherwise so that was the government's problem in that case what the government then tried to do is back the conspiracy up and say well the overt acts in this conspiracy don't involve the actual robbery of the money so therefore it's really a different kind of conspiracy it's not a conspiracy that involves this is the actual robbery of the money and the court and salgado says well not so fast because that may solve the problem of not having the money but then you have a new mens rea a problem because if you don't have the robbery then you have this kind of in cohen conspiracy and there has to be an agreement that then there's a mens rea issue because then you know what are they exactly going to do if the overt act isn't the actual robbery it's just it's somehow completed before the robbery took place so there was a very special situation there and the government tried to get out of it by backing the conspiracy up and say it was a different kind of conspiracy it does not involve the robbery here it's very clear this was  charged to include the robbery the actual robberies an overt act so i think it brings it back to fiola and i got ok i maybe i need to reread the seventh circuit decision because i didn't read it that way i read it as haven't resolved the mens rea question against the government but let me go back to something you said before and let's just assume that we were to find a men's red for the for purpose of conspiracy to obtain federal money the defense has to know that it's federal money let's assume that we were going to find that you said that you thought that the convict the conspiracy conviction in this case would be vulnerable to attack and i guess i'm not sure why are you conceding that wouldn't let me back up is i want to be careful about how i put this i'm not conceding anything terms of the legal issues to decide this case versus what we don't well let's assume that we were to rule against you on that point the jury was nonetheless charged with alternative theories on which you could convict for conspiracy why does the can why would a conviction need to be reversed just because one of those theories was potentially invalid well i don't think it would need to be reversed in this case because the verdict is actually in the conjunctive so the jury if this co verdict form in this case the conspiracy charge piece of that is conjunctive you found robbery federal money and assault on a federal officer so i think if you lose one of conspired to the defendant's conspired to assault a federal officer and rob money belonging to the united states or the jury instruction i do have from me and it's definitely in the  that's what they said maybe yes ok but but i don't think the court needs to get even halfway down that road because i think that if so gado were actually read that way as simply saying well the twenty one fourteen a conspiracy is fundamentally different from the one eleven a conspiracy because you have to prove that it's federal money that would be contrary to feel his feel was as a little bit more than that than the narrow holding  that says that the offender in this kind of a case takes the victim is evil and the reason for this statute that the statute was passed when eleven in that case is to protect federal agents in the performance of their duties even if they're under cover twenty one fourteen a is to protect people carrying federal money no longer now i mean the the statue could be violated if there's no people involved it just has to be property taken it c taken from a cap and right so but so that the argument for why the one who haven't charged would be different from the twenty one fourteen charges simply that feel a created a a relaxation of the mens rea requirement because of the special interest the federal government has in protecting federal officers there's no such need for a special protection of a proper your money i think i disagree and i think that fernandez says something different this court in fernandez that the purpose of twenty one fourteen a day is to protect people who are carrying the mail and who are carrying federal money and the way that it's written is the robbery of the money or mail but the reason congress passed it was to protect it was to protect the testifies that he said i'm editing out my pockets because i was going to give them the money so clearly he had the money in the sentencing issue this this mastermind comment wasn't really part of the judge's imposition of sentence it was done it response to the defense argument that he was just subject to peer pressure which the judge just was not willing to believe but even had it been part of that sentence it wasn't an abuse of discretion for the judge to  read to make that conclusion based on the records where otis mobley you know told the group he was setting up this deal for this other person my my bro mobley crews are said that he told  s mobley to drive him to this deal mobley seems to be driving the situation on the video when he gets there he's the one with the gun he's the one telling the agent what to do and he testifies that  that he had he had told him to get out of the car and come with them so that's all of pages one sixty two one sixty three his testimony about how the deal went down it basically out of you first judge what for let me address your question if in fact there was an unconstitutionally big verdict because there were two possible grounds one of which was unlawful the u s supreme court decisions and yates and griffin was on what does it say does it say what he said it said yes well the film both and one of them we know is valid because i just think you're wrong in reading feel if you think that it left open the question well as to the conspiracy i don't think i am wrong because we're talking two different things you're talking about mens rea i'm talking about the agreement that the alleged agreement never happened which was as counsel said you take the victim right as you find him well the victim who was the object of this agreement was not anyone who turned out to be a federal officer it was aaron mcgruder all the way through so they didn't really hang on hang on you're question the jury could probably have reasonably determined otherwise right on these facts could have determined that the agreement was otherwise i don't believe they could reasonably have found that out and you're conceding that there was an agreement to rob baron no i'm saying if you want to that the evidence was that there was enough evidence to show that agreement it should have been prosecuted in state court it wasn't a federal crime but you would you just before that there was a degree murder rob that's what you remember you're trying to distinguish that between him and federal agent i'm saying if there was an agreement and the jury obviously found there was i'm clarifying my statement if there was an agreement the agreement was directed to a private actor and fiola specifically talks about that and would specifically exempt that and i refer you again to feel the page six ninety five to six ninety six where the supreme court addresses that and i would also refer you to the transcript at page six forty six the reporter's transcript in my opening brief on page sixteen i'm sorry the reply brief the prosecutor's arguments to the jury were owed a small blade another cousin set the whole deal up the fake deal for a grenade launcher that was not here otis mobley set up that fake grenade launcher transaction oldest mobley set up a fake grenade launcher deal to lure in the victim for a thousand dollars he drove his two cousins the two gunmen to the robbery he was the one who set up the deal i don't think that it's appropriate for the government to come in here at this late stage and switch its theory to something else but the government always but again aren't you hoist yourself on your own butt tard because even by your own language you're saying no to set this up and then you've got the other people involved that ties a little bit you conspiracy he drove them there well they didn't just talk about chewing gum they were going to rob somebody right well that is that if you're at the certain with the video shows they didn't just sit there and reasonable in determining that the parties to this agreement didn't just conspire to rob only aaron mcgruder i can't remember the names aaron mcgruder but that they were going to rob whoever showed up and that's it that explains why your client drew the gun on the agent here's the problem is there's no evidence of that the evidence is that the agreement was reached with aaron mcgruder and that he was the he was the person they were communicating with the person who said he was going to buy mcgruder testified that the minute the second he saw that gun he was out the door because he didn't realize that it was crew star mobley he'd been negotiating with he hadn't made that connection himself so he wasn't expecting that he fl