of force and then this civil rights conspiracy which was the indictment made some references to route ribbon it also made references the theft that the defendants were stealing people's property in  know way from them and that was depriving citizens of their right to due process and robbery and theft are two entirely different concepts if i steal from someone i rob them and that's the problem that the government has and one that they have have not really simone and if it were just more complicated than that because count three does not rest on a straight up theory of robbery it's got all these other alternatives it's got three alternatives two of which rests on  money was gone somebody stole it nobody really disputes and but when the defendants stop the victims and claim to be arresting one of them they never said anything to anybody about we want your money we know you've got money this is a stick up it's just this bogus encounter saying all we've done in the arrest warrant and then the undercover police officer is tall or you can go on your way and it's only after he leaves and starts checking around in his in his car that he realizes the money is is gone and so that's why the government really desperately needed this very kind of alluded theory in the indictment they needed to pinkerton instruction to cover that problem they couldn't prove that there had been any use of force or threaten force in an effort to bring home to the victim hey you'd better turn your money over or else they need you know the government setting the sting up knew that these defendants wanted to get the money in effect the plan sort of worked out the way the government planned it if the defendants got the money but they did not use any force or threats of force there that is what is really we're where we're at at this is the nd part of it is that the force has to have some impact on the victim him going on with the money yes they they you know they stop the car they're cops they've got guns there is some use of force there but nobody ever says to the victim we want your money or do you have money and that's what made it a theft language whether it's actions whether it's the mule you in general it still has to be tied to the victim surrendering his money you know the undercover cops course he does absolutely nothing he's hoping that the money will be be missing but we can't look at it from that standpoint we have to be looking at it from the standpoint of what effect is there conduct you know on the prototypical victim and  there's nothing that they say or do that we put a victim who's who's not planning on staying in the position of saying oh i better give over my money it's a robbery to well it's a little bit hard to figure out why it's it's attempts i classically robbery requires an unwilling victim and so they start these all common law cases where the victim is  set up in the court say that's not really robbery because the victim knew this was going to happen and wanted this to help and so i think that was a very conscious choice to say this is an attempted robbery in order to get around that that aren't true and unlike the person who's being made to stand there while they go through his his luggage was being impressed upon him were about to to take your your money this this was very different where he's he's not able to see what they're doing he's not able to make any protest and in fact they were not directing their activities towards him they  on the civil rights conspiracy as well as the attempted have robbery is it fails because that instruction did not have a substantial and injurious effect on the determination of the defendant's guilt that the phone don't argues that there's no way to know which predicate the jury relied upon and that that's grounds for granting belief on as of the nd successive twenty to fifty five year but that's incorrect the defendant suggestion basically is that the same standard should apply in this context this would apply to a case on direct review where the read the argument was made to the district court predicate so what we're saying is that the it's a nearly impossible on this record to believe that the the the jury would have found that the defendant guilty on the one hundred and twenty four dollars c charge without finding that the defendant or the that the defendants one hundred and twenty four dollars a c charge was predicated on the on the robbery i mean this was if this is the robbery where the where the firearms were brandished i t it just it defies reason to think that that's what they may have thought they're still there's no good light between as a factual matter or even as a legal matter here because they the civil they have included the robbery and did include the robbery was based on the robbery but in this context on count six it was how as extensive with the robbery in other words this is this is what was being the manner that the defendant suggests in our view i don't in our view you know specifically states i don't know it's our view i mean o'neill says explicitly that it's better just to look at the final evidence does is there looking at the record does the judge believe that the error the claimed error had a substantial injury is the fact on that or the determination of the jury's verdict it doesn't it doesn't it in fact it argues against this idea of trying to measure this this type of analysis based on who bears the burden of proof so it is it is judge who does not necessarily is not necessarily certain that there's been a substantial and injurious effect but has grave doubt about that fact and so there so the question is well will the person well that the assignment the burden of proof be a tiebreaker in that context this isn't such a case this is a case where corrupt police officers conducted eight or committed and attempted robbery armed robbery branching firearms just to yes to steal from the defendant or even from the victim but it is a hobbs act robbery attempt at h robbery that's what happened here to to argue that the jury would have ignored that based on the jury instructions are represented in this case really doesn't it really doesn't make any sense this is a case where it is clear from the nature of the offense and the nature of the ny twenty four dollars c conduct that it is highly unlikely i would say nearly impossible that the jury would have based its decision on a finding that the defendant committed the nine hundred and twenty four c offense based solely on the civil rights conspiracy and not on the attempted robbery and as for the idea that the civil rights conspiracy was talked about stealing theft as as well as armed robbery i mean that's not what happened in the attempted armed robbery that was done that the jury was directed to consider that that's just not what was going on there so we think that this is a case where there's been no substantial injurious effect and therefore the district court's decision should be affirmed just right thank you very much m casey you have used all your time if you have any close in thought you may have another minute thank you anna but the government wants to pursue sort of a free from inquiry as to what a reasonable jury  among other things the elements of the alternatives and this is a case where the alternatives have very different elements perhaps the same evidence could be introduced at a trial either one of those alternatives but when you try to be up trying to do this together then you've got a problem when you tell the jury use either one of those alternatives and it turns out that one of those alternatives is it's legally