good morning your honors i'm going to direct my remarks to the two one one three argument the argument about whether or not the asportation was substantial and out or within the meaning of title eighteen united states code section two one one three our position is that the asportation for the purposes of two on one three easy must be substantial to justify a departure from the underlying bank robbery in this case it was an arm bank robbery two one one three a and d and other words the actions of the robber we believe must be more than routine they must be substantial what the robber did in this case with respect to the critical witness whose victory lay the security guard is our position was part of a routine bank robbery and other words it was not i don't understand that concept you are switching from substantial to routine and how does one i mean what's a routine bank robbery the guy in this case was outside the bank and was forced from outside in the parking lot into the bank now a routine bank robbery you know all the t v so it comes in movies and all my experience in back robberies is that the security guards are inside the bank and there may be some movement with inside the back but this case involves moving from one from an outside public environment into an enclosed building so how's that how does routine fit into the safe and do all those things that's clearly kidnapping under two one one three eight on the other end of the scale i would say robber maybe like the robber in your movies goes to the bank that bank didn't happen to have a security guard posted outside maybe the security guard was inside the robber goes in says to the teller number one at the window clear out your drawer and go over there and get your number two hundred three and go to the vault and get and maybe he goes along with her that is the routine bank robbery that we would probably normally see on t v right and i would put that at the other end of of the extreme spectrum what i'm talking about in this case is where that line should be drawn on adding underlying robbery and i would say in my analogy on that spectrum with that the teller goes from window one to window three the to the vault that's part of the underlying robbery our case i'm arguing is on that side of the two one one three spectrum in other words does not justify a two one one three conviction because in part because of the facts and i just want to state what the facts were at the trial the bank hired a guard of pickers and guard there were two of them they switched turns being outside the bank they were still on the bank property in fact the bank a little path that went around it i think was referred to in the trial as a little sidewalk but it's the path that leads up to the bank doors it's not a public property it's a bank property and right adjacent side i mean it's outside the doors right in a parking area i mean the customers i would assume would park in their slots and maybe walk in those front doors so the robber comes up behind that guard on that path and forces him to go inside the work force by word force i mean he has a gun the guy doesn't see the gun it doesn't him with the gun he tells them to go inside and the guy moves because he doesn't he doesn't want to get shot or he lies down immediately inside the front door on the doormat and that's clear from the photos in the bank robbery just right there you never moves another inch so it's a it's a matter of feet from the path that they moved down to inside the front doors until what was the instruction that was the instruction was you to find is that as a matter of law the facts in this case did not support forced the company in that he says do we end the marriage the only case we have is the district court are there is much support for my position first i would say that the underlying intent of two one one three which is described and the purpose it is the average case as well as the marsh case talking about how this statute two one one three envisage making it a federal crime to kill or kidnap anyone in an attempt to avoid escape or imprisonment or arrest for talk about a company meant without consent and then went on to talk about how the legislative history required more it required and in fact the march case the reasoning of which i think is solid is that there isn't a reference or i would say comparison to the kidnapping statute in title eighteen section twelve one which requires an unlawful seizure of holding and other words more than just  they could have said that they did well though the language that they used to force the company is the kidnapping enhancement for the bank robbery the underlying intent isn't that it's a it's a good forehand way to refer well i think what i'm asking for is that the court look at the purpose behind the enhancement to it and the court then look at how is the jury to decide whether something is forced a company within the meaning of two one one three or are part of the underlying crime itself how do they make that determination we know that the guard did it because he thought it would be fine as the facts were different they're there robert took a hostage in the face of a police response to a robbery and essentially was using those two bank employees purse to try to get away when he saw that the police response was overwhelming he sent one of their employees out with a gun to say ok i'm going to surrender and i would say that did ratchet ratchet up the level of risk one of the things that i'm saying is that we should have some sort of a statutory crime of kidnapping so both in the circuit and in the government at the time sanchez was the assumption was that the forcible accompaniment was the functional equivalent of kidnapping now it doesn't say  consent in an ordinary bank robbery sense and that's why i think what judge to shima did is he looked at the legislative intent and then he looked at the purposes behind it and he he made the comments in his opinion about if you don't do that then it's just left  that's should not be left just to whether or not a prosecutor's office decides we're going to charge everything we can charge or we're going to be overbearing or one decides to do and one doesn't we have to have some standard and i think that's part of why he looked at the legislative intent to see that this ten year mandatory minimum required something more and it came about because of all the kidnappings and killings that were happening and bank robbery get away i one of the things that i would  in looking at adopting a test for how can a determination be made whether it was an asportation that is substantial meaning more than the underlying bank robbery or not is a look at the different categories of offenses that come up within the bank robbery because i think one of the factors is if one of the categories of the offenses is committing the offense and the second is in it in avoid apprehension and the third as in freeing yourself from confinement maybe escape from the jail the test might be different in those different circumstances but those different circumstances do play into how someone should look at whether something suggest that goes to seymour laid out a standard we should adopt i'm having trouble understanding why in this case it isn't sam's why he doesn't talk about whether it's routine or not he says to be measured by duration distance in the changing change of environment for me when i said public it was a cordial world lives on a public sidewalk he was out in an open area chances to escape to be observed by others but the question of the change of environment really has to do with and this addresses don't let your question about some of the other circuit law cases about turner i think were the fourth circuit case and they talk in those cases about this change of environment and that being something to look at and the change of environment really has more to do with is the person who is with the bank robber being put in a position of isolation or being taken to a place where they're sort of at the mercy of the robber in other words like  in an empty building where it's taken to a vaults where there's just the robber with the gun in this case my position is that moving the guardian side with him did not raise the to the guard any more than was their present anyway in the underlying robbery the robber had a gun he was going to get people to move around in the bank because he had a gun in other words nobody was going to not go to teller door number three if they were at number one after the vault though the underlying risk was already there the change of environment did not increase the risk in fact what happened is the guard moved just inside the door and laid down just as the robber told them and never moved another inch it was a matter of a couple of seconds to walk down those few car lengths it was a matter of feet to walk those few par lengths he was not isolated or sight it was all within i guess what i consider sort of the curtilage of the bank although i think that even all the cases cited by the government don't urge a test to draw a property line i think there's it's a number of factors that that you have to look at so i was a even though factually some of the government's cases can be distinguished they still support the defense argument in the sense that courts have tried to come up with a test to make a determination of whether or not  something is part of the underlying offense or additional and separate and in addition to those arguments and i want to reserve a couple of minutes for response so in addition to those arguments i would say that what supports my argument is the analogy to twelve zero one the kidnapping statute which requires an appreciable holding more than an incidental part of an underlying crime and as well the california penal code kidnapping statute which requires more th something is part of the underlying offense and if i could i'd like to reserve the rest of my time  good morning honors me please the court on your offer yalom behalf of the united states i want to begin by explaining to clarify some of the facts in this case with regard to where the security guard was standing outside the bank  mentioned that he was standing a few feet outside now when the security guard was on the stand that's the this just in the money is on starting on page seventy nine of the government's expert of record he was shown exhibit forty four which is an aerial photograph  of the of the bank in the parking lot and he was asked to show the jury where he was standing at the time that the bank robber came behind him and mr lee stated and he told the jury that he was standing at the end of the photograph and when you look at exhibit forty four your honour's what you'll see is that in front of the main entrance to the bank you have a concrete area then you have car slots that are facing the bank and then beyond that you have the parking lot and he pointed to the end of the photograph at the edge so essentially you have the concrete area so a car length or so in front of the bank and another parking lot area right beyond the parking slots facing the bank that's more than a few feet that's more than a couple seconds and what you see your honour's in the surveillance video that were provided to the jury is that as he walked in through as he entered the bank with mr lay the defendant pushed him down so you have the distance for that from the time he accosted him outside the bank beyond the put the parking slots all the way into the bank two months later your honour's the eleventh circuit came down with power and about rejected the notion that you need a kidnapping elements that you need to look at the young at the distance or the time and bar that's when the robber walked with the same argument that his actions were simply incidental to the bank robbery and the courts in read again relying on dollar rejected that notion and the court specifically set what supports the force the complement in this case is the defendant taking the victim from the outside to the inside all the other movements in the bank we're not going to rely on for this and the court noted that there  the defendant in those cases relied on and again the seven circuits that taken in from outside to the inside is enough and your honor just that you want to bring up to the court's attention about a week or so after the government filed it sixteenth of zero four three eighty nine the third one eleven i do have an extra copy and in that case your honor the defendant walks into the bank goes up to the bank manager right before closing time lifts his shirt shows the bank manager the  then he tells the bank manager let's get some money and the two of them walk to the vault no one else notices anything inside the bank he gets the money from the vault leave the bank manager inside the vault and then comes out and on the way out that's when he tells everyone robbery all of you go to the pool and the four circuit in that case also relying on power and on davis stated kidnapping elements are not required in this case the movements and this is where the force well i mean we didn't and the government argued with kidnapping to judge the sheema but in jones we didn't reject kidnapping it was assumed that in fact that's exactly what the statute was all about  been focused on this issue but all of that not only jones but follow on to judge the shame of the government's arguing it now granted that's not  than simple force the company meant for you know a couple feet or whatever so what is the standard then are you saying on the facts of this case movement from outside to inside government there was arguing that the asportation need only be more than slight is that what the government argues here or you are arguing for something greater or or even lesser than whether the movement sanchez would have been enough with this court has before it is a movement from outside the bank several feet away several car lengths away into the bank y can say that movement from outside to inside this person a force the company in all cases is your honor just pointed out what if the security guard was standing holding the door and the defendant walked up grabbed him forced him to go inside or just open the door but only one or two feet and and then released him maybe in that case under those circumstances where he doesn't have the sustained focus on the victim it's not forced accompaniment in both cases  you're out of the government that's not asking that the court reads that the statute so broadly that every garden variety bank robbery or t v bank robbery becomes force the company and there's always going to be movements within the bank the tellers with that isn't necessarily enough ok so we're up above just the mere fact of going from point you know a few feet just to let the surly get where the victim would have to get to accomplish the the victim and saying you're coming with me it's me and you if i go down you go down and that's exactly it your honor you don't see one reason why you don't see the twenty one thirteen statute it's because there aren't that many cases the ordinary think obvious do not involve the movements do not involve grabbing someone from the parking lot they can into a bank they can someone from the bank outside were taken into the vault and that's why we don't see that many decided cases on twenty one thirteen a finds the bank manager or the employee on the street he walks in forces into the bank on lock the door to go inside that was the example the court gave invicta it didn't look at the distance it didn't consider the kidnapping elements  it seems to me that accompaniment the read case similarly follows that line of thought the turner case which the government just offered to the court today also makes this distinction between routine and something amounting to force the company met within the reasoning of two one one three there was no so i'm not really sure what the government means by its phrase sustained focus it seems that any time you would tell a teller go to window number three or go to the vault you could argue that's a sustained focus of that that can't be a test in terms of whether or not it amounts to force the company and it seems to me that the question of the movement should be tied to the question of is there is risk of the increased danger and that's why it's important in the substantiality of the movement and again my argument would be that moving him inside and telling him to lie  down did not increase the danger to him is no support for the government's argument that there was some danger of confrontation outside the bank that argument they make in their brief there's just no factual support for it especially just to clearly state should also be considered in terms of sanchez there's the purpose of the movement here the movement was attenuated from the actual robbery and he moved them inside there's no direct evidence of the intent but i think you could infer from it that the movement would be so the guard wouldn't run away and make a phone call i guess but there is a direct relationship between the movement and the actual accomplishment of flight or the accomplishment of getting away with the robbery and during the commission of the robbery and some of these cases that just doesn't exist here thank you very much thank you counsel your argument started