very well known as wine men will hear from you st thank you your honor good morning and may it please the court sara wine men assistant federal defender on behalf of ahmed ferrara your honor i'd like to use ten of the twenty minutes the court has allowed for argument this morning reserving two minutes of my time for rebuttal mr cooper you know i just need to watch the clock and stop on your own because it will continue and you know ok thank you mr for on mr spencer raised two issues in comment on appeal was the courts indulgence i'd like to focus my portion of the argument time on the prosecutorial misconduct issue and counsel for mr spencer will focus on the jury instruction issue but of course i'm happy to answer any questions the panel may have on any of the issues mr f to fully appreciate the gravel men of the prosecutorial misconduct that occurred in this case it's important to keep in mind to background facts one is what the theory of defense was a trial and two is when the prosecution became aware of that theory the theory of defense was that the government could prove neither that the knowledge element nor the taking of the element of robbery because the theft was an inside job involving as of the th morning of trial which was the day before closing arguments the government was fully aware of the theory of defense and in fact summarized it for the district judge at a sidebar this is a trial transcript page six  when the prosecutors summarized the defense theory as ali mohamed was quote somehow involved with this robbery on this date in question are somehow complicit in this robbery and this tape in question and then it pages six  as to whether there really was force or consent and that it led to the theory that the government had not properly investigated the case so i think it's important to keep that in mind because that's what the prosecution knew going into closing argument that the theory of defense was not identity but was instead this missing witness issue and an inside job theory well knowing that we'll go through a question so you prosecutor stood up and at the outset of closing statements this is that pages eight hundred and fifty six through eight hundred and fifty eight the prosecutors said some of you may have thought to yourself last week while we were presenting you methodically and thoroughly with all of this evidence that why are we even here are we missing something is there some big mystery is there some twist that we're waiting for and then he continued on page fifty seven and you bet that the government is going to present and methodical case presenting as much relevant evidence as it can in order for you to make a fair and just determination that's what i was and all last week presenting all of that evidence to you you're not missing anything  the following page eight hundred and fifty eight the government state the prosecutor stated since you haven't heard things you might be guessing about that speculation and that's not a reasonable doubt now your honor i think this goes to the prejudiced question because this is the beginning of a crescendo of cumulative statements that the prosecutor made during closing arguments at the end of the initial closing argument in eighty eight dollars the present you're reiterated i wouldn't be doing my job if we weren't thorough or methodical but ladies and gentlemen your job is got to be really easy with all of the evidence so adopt point the defense counsel gave their estimation in which true to their word they focus on this missing witness theory and stop investigation theory focusing on the evidence that wasn't there and arguing that it passed because this smells of an inside job the government could prove perhaps meet twelve jurors that can disregard an overwhelming amount of evidence and go after some speculation and argument that is proposed by two defense attorneys and then at nine hundred and forty and here i think is where we really get to the heart of the matter in this case there are many reasons why we might call one witness and not the other you saw it repeatedly with the officers partners we call the one witness that we did not call their partner and we are he spent five days on everything maybe mr muhammad wasn't able to be obtained maybe mr muhammad is dead that statement right there maybe mr muhammad is dead went too far it is in you waited a facts not in evidence and insinuated a fact for which there was no basis in reality it took the leap from saying disregard the missing evidence to actually asserting a fact that the prosecution simply had no reason to believe was true and i think it because that because of the nature of the statement and maybe this missing witness was dead there was also this kind of subversive or sinister element to the comment particularly since the jury had heard evidence that mr muhammad kind of vanished after the robbery the prosecutor has heightened ethical responsibilities that's been clear since the supreme court's case berger going back to nine hundred and thirty five here by by insinuating that this missing witness was dead the prosecutor crossed the line of those ethical responsibilities it would have been one thing to say perhaps as a present hitter the it would have been one thing for the prosecutorial team was thorough and methodical and that all of the relevant evidence had been presented that there was no missing evidence and that this key witness perhaps was dead  prejudicial effect on mr ferrara as well as mr spencer and beyond that there was no curative instruction given which is the nd point in the prejudice analysis objection that's an interesting question your honor and it's one that i think this court is answered in cruise to d m where which was go ahead go ahead with your thought sure it was also a plain error case and yet and it's prejudice analysis the court noted the lack of a curative instruction did prejudice the defendant and remanded the case for that reason so while certainly there was instruction so if the if the comments were so prejudicial that one was necessary to solve the prejudice problem there wasn't one and granted that sure and again that's just one factor in the prejudice analysis so however much weight that the court wants to find that factor i do think it favors a finding of prejudice as does the cumulative nature of the comments so that would you care to save your remaining thirty  constitutional challenge to the object since we recognize that would require the bond keep circuit to reverse on that issue instead i'll be focusing on the jury instruction challenge to the hobbs construction that's raised by both mr spencer cheney and his concurrence and that he stated and i quote it is hard to imagine a robbery of a commercial establishment with less of a connection to interstate commerce than this one well this is that case in dobbs at least convenience store was located at the tri state border and thus older residents of three different states this case instead involved a local of the local penn would market that serve the local neighborhood residents of the north and the ups community what that means is that under this court current jobs act jurisprudence this case is at the very outer problems of congress authority under the commerce clause and that's what makes the jury instruction that was given with respect to the interstate commerce requirement under the hob particularly harmful and prejudicial the instruction was confusing and inconsistent because while it started by stating that the required element was proving an effect on interstate commerce then as the instruction went on it referred soley to commerce no longer referring to its interstate commerce and referring to examples of commerce as being ones that could have a strictly in trust state a fact that gave the jury the community store for example was at the tri state border a fact that's not here and critically some of the examples that were given in the jury instruction for how in effect on commerce again not qualifying as interstate commerce could be proven were things like depletion of the assets of the business operating in commerce will hear all the cash from the convenience store was deposited in a local in state bank temporary closing of a business to recover from the robbery or business slowdown as a result of the robber again the customers who weren't going to the pen would market during the limited amount of time that it was closed due to the robbery were local community residents transcript fifty four thousand five hundred and forty four reflect and which uses the term interstate commerce and gives that the meaning of you know involving more than one state and then and then at the end different from the a circuit instruction which again uses of the term commerce law and reflects this court's precedent and specifically what was requested there is that the term commerce be used and that specifically in that in that docket instruction and was critically different about the th circuit instruction it would have consistently used the term commerce all the way throughout including specifically defining commerce as having an intrinsically interstate component for purposes but the object and the jury instruction definition that wasn't there in the instruction that was given  for that reason there should be a reversal for a new trial with a properly constructed jury that element i'd also like to bring your obviously to the obstruction question was there any instructions conference after the submission of the letter to which transcript for that instruction in that instructions conference was this objection raised well the objection that was raised was again generally to the elements i will acknowledge that the specific discussion concerned largely the mens rea a component but but but again the general objection was made i would also make the point that even under a plain error standard the error here is is clear because this case was at the very outer prompt and prejudicial for that reason that there is the risk here that the jury convicted based on in trust e commerce which would succeed congress's authority under the constitution so under a plane your analysis you get the same place but we maintain that the issue was preserved but telling someone to exercise their constitutional right as opposed to threatening or intimidating cannot be obstruction and the comment makes this clear it says obstruction includes threatening intimidating or otherwise unlawfully influencing a witness but there's nothing look to two things your honor it's not clear that that's from an entirely separate conversation so you have exhibit a in an earlier audio conversation that's where that comment was made separate from when you listen to the audio of exhibit a it's not talking about the context per testifying at court proceedings it's pretty clear from the evidence from the audio what they're talking about are girlfriend issues this mccarver was you know they had previously been involved mr spencer had a different girlfriend at the time don't it's also lawful to leave the country or hide from investigators and so forth and i suppose encouraging someone to do that could be obstruction so while there's not a concept what was recommended see two things st as a factual matter it in the context it clearly was for her benefit if you look at exhibit b and this would be at five hundred and thirty five what he says is do some legal research on its called pleading that if they ain't giving you no favors they ain't giving your nothing in exchange for what's going on get on your phone and book that up so he wasn't saying don't don't testify no matter what the government wouldn't give you immunity look at the pleading that i see that the district court if you look at transcripts thirty eight thousand three hundred and ninety seven i know my time is up but the district court acknowledged the risk of jeopardy here and would not allow the witness d to testify unless you're given immunity or st give them the right to counsel unless the government restricted his testimony which it did mcmanus is entirely an app because they're the th amendment was never specifically invoked because it was here as a matter of law that was a privilege against her self incrimination and for that reason it was improper to apply the enhancement here under both the sense of guidelines and the constitution very well thank you for human nature now some will hear from you thank your honor may it please the court my name's nathan nelson a represent the united states on appeal i was also one of the trial counsel at the trial below this court should affirm the district court in all respects i'm going to focus my argument however on the same two issues that were focused on by defense counsel namely the issue of whether there was a pla error in a district court failing to intervene during the prosecutor's closing argument without objection from defense counsel and whether the district courts erred in instructing the jury i'll start with the issue of the pr misconduct and here you are i do think it is helpful to break down the closing argument into the initial closing argument and the rebuttal argument because at the time of the government's closing argument the defendant were as far as the government knew still contesting the issue of identity despite this one said they were disputing whether they were the masked men in the store and you can see that on page eight hundred and thirty one of the transcript where the district court explicitly asked mr far as counsel if he was conceding his presence in the store and defense counsel declined to make that concession as far as the government knew it was being held to each and every one of its elements and its burden of proof and all those elements and that context is important in analyzing the government's closing because the evidence of identity that they were the masked men in the store as everyone now seems to agree was overwhelming so when the government began its closing argument by stating that some jurors might be wondering why are we here or are we missing something and then argued to the jury you're not missing anything that was a proper arguments and a proper reference to the fact that identity was not more difficult of a question and it seemed the government wasn't implying to the jury that it that it had heard everything there was to hear about the case we were arguing to the jury that the jury wasn't missing anything in its understanding of the case at the obvious answer regarding identity was in fact the correct one the same thing is true for the government's argument that the evidence was overwhelming there is nothing improper or with arguing that evidence was overwhelming if that argument is grounded in things that the jury has heard and that's what the government did here it used the term overwhelming in connection with an extensive analysis of the witnesses and the exhibits that the jury had heard and in fact again as everyone now agrees that evidence was overwhelming at least with respect to the issue of identity  the statement about reasonable doubt the prosecutor argued that reasonable doubt is not based on what ifs it's not based on things you haven't heard or things you might be guessing about this too is proper argument that reasonable doubt is not based on speculation viewed in context the prosecutor was not implying that reasonable doubt could not be based on a lack of evidence as mr far argued in fact the prosecutor three separate times told the jury that reasonable doubt was based on the evidence or lack there of the prosecutor also told the jury to follow the judge's instructions and the judge instructed that reasonable doubt could arise from a lack of  i will admit that the context on republic is somewhat different because during the defendant's closing argument the defense did a couple of things st mr far as counsel directly called into question the prosecutor's confidence in the case claiming that the competence was hollow and it was not sincere and mr far as counsel went even one step further and he urged the jury to acquit based on the government's lack of confidence in its case saying and i quote if they have a doubt you should have doubt and these arguments having been made by the defendants the district court did not clearly abused its discretion in allowing the government to respond so when the prosecutor argued he was he was in fact confidence because he yet to meet twelve jurors that could disregard an overwhelming amount of evidence and go in for speculation that was a comment that was directly invited by the defendant's attacks on the prosecutor's confidence and the government's so called doubts in its own case and to be fair  of the supreme court's guidance in young that typically a prosecutor ought not to make such comments even when invited but if we look at the concerns underlying prosecutorial misconduct the concern is that the government should not be inviting the jury to decide the case on an improper basis and here the government did not invite the jury to decide the case based on his competence mr forrest counsel that and throw the government's closing the government repeatedly admonished the jury to decide the case on a proper basis that the prosecutor argues as are all the talk about how methodical and thorough we were and how good the cops are why is not proper argument well here i do believe it is proper argument nala displaying with respect to the thorough and methodical present ation of the case first of all that was a comment that was tied directly to what the prosecutor called the defendant's sacred presumption of innocence and i don't think there's anything improper with arguing to the jury that they have had a thorough and complete look at the evidence of the case and can rely on the evidence and making their decision this robbery lasted your honor about thirty minutes or about ninety minutes between the beginning of the robbery and the apprehension the government called twenty witnesses over a four day trial to address that and i what the prosecutor said was he was responding to a defense comment about the failure to call mr muhammad and what the prosecutor said was that maybe mr hamud let me back up he said there there might be many reasons why we don't call someone or why we call me one of two people that were witness to something and the prosecutor one argued maybe mr muhammad was unable to be but obtained maybe mr muhammad is dead but then he followed with nobody knows and i think that was properly calling attention to the jury that there was no evidence before the jury as to why mr muhammad didn't testify the prosecutor didn't imply special knowledge in fact the prosecutor said explicitly nobody knows why this guy's not here why he's not testifying and that was a proper response to the defense argument that the government did not call mr muhammad because it was quote investigating him that was the that was the insinuation in the argument made by mr spencer's counsel during his closing and the government is responding to that by saying that there is no evidence before you as to why the government didn't call mr muhammad and you shouldn't draw a negative inference from the fact that the government did not call mr muhammad and in fact your honor i think this was showing some restraint underside of the government because it could have been pointed out properly under this court's case law that the defendants also had the opportunity to call mr muhammad that they had the subpoena power and could have called him this isn't a situation where mr muhammad was particularly within the power of the united states to call and in any case your honor the other bit of context i think is important is that the prosecutor immediately reminded the jury that they must base their decision on the evidence not arguments of attorneys including myself that statement was made immediately following the references to the mr muhammad you see a difference between arguing that you've heard a lot of evidence twenty  forth and arguing then we have a job to be methodical and thorough we have done a thorough and methodical job as prosecutors and we as police officers have done a good job on this case do you see a difference between the two i think yes your honor i think there is a qualitative difference between the two but as a supreme court has recognized there's a lot of gray area when it comes to closing arguments closing arguments are made at the end of a long trial sometimes in case rebuttal in the heat of the moment and the district court is the one vested with the discretion to draw the lines between what is or is not proper argument especially in that great area here i don't know you're saying it the prosecutor can go over the line it's up to the district judge to cool him back why wouldn't it be up to the prosecutor to be trained properly on the distinction between those two qualitatively different types of arguments you're right you're either of course the government has a duty to refrain from making improper arguments that that's absolutely true i don't believe that these arguments were plainly improper and that of course is the standard for this court on an appeal there might be things of statements of questionable propriety or that there are some looking back in hindsight we wonder what should it have been phrased that way should it have been stated that way but that was a question for the district court the only reversible error is if the prosecutor made comments that were so so clearly out of bounds that the district court didn't have any discretion and should have intervened and under the plain error standard that that that error was so obvious that it deserves to be over the lack of objection serves to be overlooked and i do want to turn to the other elements of the play there are a standard here because the defendants can't establish prejudice in this case the district court gave not curative instructions but general instructions to the jury stating that statements of attorneys are not evidence telling the jury to base their decision on the evidence presented at trial and as i stated the prosecutor himself repeatedly admonish the jury to decide the case based on the evidence and not on things he was saying finally the evidence was in fact overwhelming as to guilt because even under the defendant's own theory of the defense there was still a forcible taking a property from the custody of the other employee mr and the defense would be guilty even under their own theory of defense under which one of the employees was involved turning to the issue of that but there are any before you go to the next issue is there any evidence presented about attempts to find the mr muhammad or why he was not call'd me sometimes the government puts on evidence you know that we send somebody out looking farm we couldn't find him and so forth was there anything in the record about that  i believe there was your honor i'm not recalling exactly what they were there was a officer who responded immediately after the robbery who interviewed mr muhammad and i believe the testimony was that mr muhammad confirmed a robbery had occurred and then the government's case agents i believe testified that he had tried to contact mr muhammad but was unable to locate him i don't recall specifically what the testimony was in that regard however the government's counsel appropriate for this court's review because the defendants have waived their claim and the context here is is important one week before trial the defendants requested the very essence of the hobbs act instruction which they now object following the close of the government's case the defendants for the st time requested to a circuit model instruction but they explicitly in fact three times premised their request on an issue with the for robbery that was stated during the district court's charge conference following the charge conference party submitted written submissions and if you look at docket entry to a one that was one of mr spencer a mr far as written submissions in which they stated quote from the defense perspective our concern is that the modern instruction the one the part of submitted dilutes men's reda specifically by not making clear that the mens rea element applies to two of the modern instruction and then again the following day before closing arguments the district court after overruling the defendant's objection the defendants requested if they could just add one word to the parties joint instruction add knowingly and the district court explicitly asked mr forrest counsel if adding that word would address the issue and he confirmed that it would so the bottom line your honor is that the defendant got the exact instruction they requested as to the issue of interstate commerce they never raised any objection concern or issue with that instruction as it applied to interstate commerce and they told the district court  addressed their concerns even your honor if the defendants had not waived the claim the district court did not plainly abuse its discretion and here i do want to address  standard review for a moment because i believe mr far argues in its brief that this should be did novo review but all the parties agreed on what the law was the district court agreed on what the laws as to interstate commerce it was just a question of did the court properly communicate or articulate that law to the jury and this court has held that the proper standard is abuse of discretion when you're dealing with the wording of jury instructions and because the is a letter and which they asked the court to use a four element formulation under the is circuit model it's true is mr druggy indicated that that the model instruction does not use the word interstate commerce in fact it just says commerce in the elements of the final element but where the defendants have repeatedly represented to the court that their concern relates to mens rea not to interstate commerce where they make that representation three separate times i'm not sure what the district court is is supposed to do that the district court made an alteration true that jury instruction and the defendants told the court that  addressed their concerns the in any case the instruction or i was not a clear abuse of discretion the rd element of the instruction clearly stated explicitly stated that the jury could only convict if it found an effect on interstate commerce and that's a particular significance because it's in the language of the element itself instruction then defined interstate commerce as commerce that goes through or between different states again reinforcing an interstate nature to the type of commerce commerce necessary to support a conviction the fact that the final paragraphs drop the modifier interstate didn't undermine that clear language of the rd element because what those paragraphs are discussing is what does it mean to delay obstruct or effect the government presented the government's theory was this the evidence was very clear from trial that only mr far and mr spencer were occupants of the vehicle that fled from police so the was that it spurred an was simply to show which one of the defendants was more likely the driver than the other the government cited three categories of evidence the st was that mr spencer told the registered owner of the vehicle that he had a licensed driver with him and in essence that the defendants themselves intended that mr farrer would be driving the car that was confirmed by the location of personal property in the vehicle mr far as wallet with this idea he was in the driver side door his phone was at the center console where as mr spencer's debit card was in the passenger side glove box and mr spencer's phone was on the passenger side floor the government explicitly argued to the court that those pieces of evidence standing alone were sufficient to meet the the the low burden preponderance the government  history but explicitly said it was doing so just based just as solely corroborative and the district court cited all three categories of the evidence in making its finding in light of that evidence it was not clear error for the district court to find that mr farrer was in fact the driver of the call and the court should affirm the district court on that sentencing issue as well i see my time is up and i thank you for and hearing this argument per well thank you for your argument as weinmann will give you two minutes for a bottle you may proceed i appreciate that your honor thank you i have three quick points on the misconduct issue st insinuations implications suggestions for a burger to young that's what the court and this court has held cannot lead to a finding of misconduct the statement need not be an out and out lie nor need it be direct if it were we would be arguing error here here is a cut the prosecutor made implications suggestions and insinuations that they were that they had thoroughly and methodically presented every piece of relevant evidence but there was no missing evidence that everyone had done that they had job on the prosecutorial team and that one of the missing witnesses may be ted that was clear to the jury that if mr muhammad was involved then the government could at best prove only larceny and that's because both unknowingness element and the taking element could not be proved beyond a reasonable doubt defense counsel also pointed out two other important facts that's that the other store clerk who was present mr bari had made some strange comments during his testimony and could be observed during the  video having some kind of strange behavior thinking that the whole thing was a joke chatting on his phone asking to go smoke a cigarette in the middle of this incident so injury very reasonably could have found that this was all tooled an inside job or that at least the defendants knew that didn't know that it was not an inside job so for that reason as to the strength of the government's case on the defense theory this also weren't  finding of prejudiced the government simply had no evidence in the record to rebut the defense theory and for that reason they treated these insinuations and implications rd and finally with regard to this idea of invited error i do want to acknowledge that defense counsel statements were inappropriate by calling into question the prosecutor's personal ideas on the case that was that was not appropriate and when the prosecutor st showed up in rebuttal he responded when the defense counsel made those comments the prosecutor did not object he instead self help he stood up affirmed his confidence and