if they will mention at the beginning of their argument issues they wish to address if time permits and after dressing is if they will polish to see if there's any questions  the court course we may ask questions during the discussion of an issue for that purpose and ask the attorneys to speak in a normal well more conversational style as opposed the jury and the failure to give it seriously impaired mr smith's ability to percent an effective defense that instruction was based on this court's decision in that a state sources d s that decision is still controlling law has not been abrogated by an on by a panel of this court nor by the united states supreme court and it's brief the government makes the argument that diaz has somehow been limited or weakened by subsequent  decisions in fact those decisions if anything demonstrate that the as is still good control in law and also especially the kiowa decision makes clear that the district court here committed a legal error and not giving the requested instruction there was another case carsey own but that case the language dealing with diaz in that case which was in a footnote had nothing to do with the holding of cards and under this thousand and five because in from this court actually supports mr smith's argument that diaz is in fact still controlling along there the defendant challenge four different ways in which the government could have proved interstate nexus on a hobbs act violation to the st way that the government could have proven interstate nexus that the victim in that case was directly engaged in interstate commerce and then the loss or potential l this court without any kind of reservation said that when the government is prosecuting someone for an attack on an individual you can happen but it must prove one of those things test for the d s has passed with the only way in which hobbs act robbery can be proved against an individual it's the only language that seems to be contradicted by at least two of our subsequent cases interpreted what we meant  and your jury instruction that you requested did say only d s doesn't say those three conditions are exclusive and even if they did said that it didn't have before it a situation in which there was the present circumstances and conditions and therefore it couldn't have made any law about what happens if a th condition circumstance was m followed pretty much verbatim the language in d s t as it is controlling but if the district court had struck and followed d s it wouldn't have done you any good because what it would have been telling the jury is o a wait if they had met one of these three conditions that's enough and also other conditions can show i know benefit only if the instruction is given the way you wrote which is these three conditions are exclusive and that's not the scale couldn't have failed that because it didn't have the facts and circumstances of the present case before offered to have the proposed instruction altered so that they would need any kind of requirements from the court the court still denied it and didn't and the court as the government points in the brief define it in the same exact way for both and then for the parties to argue that the evidence didn't meet it with regard to one count that dealt with an individual or another company that was in business i'm having trouble seeing how the language is the same the trial court would be says actually in this regard it provides that whoever quote in any way or degree obstruct delays or affects commerce or the movement of any article or commodity in karma  up being not had any marijuana if the government's theory is correct and if what the court just said was correct and that would have been an easy decision for the supreme court to say yes it's obviously just akin to all our other decisions regarding  end of that decision at twenty two dollars that's one hundred and thirty six supreme court a two thousand and eighty two the supreme court specifically said we do not resolve that the government must prove what the government must prove to establish ha ha that robbery or some other type of business or victim is targeted so if the government's theory is correct and what the court just said that that jeering instruction was proper and would have covered an attack on an individual it would been no need for the taylor decision but there is a need for the taylor decision because the dad general three with the court's permission one go ahead thank you very pleased as to that and i know all the cases that from the other circuits but i would argue that congress is presumed to know how the words and uses know there's not a one local store that deals with all the local people and there's very little interaction between community one and a community three towns over people just a localized and so my concern is that by allowing these sorts of claims against individual robberies when someone is robbed and put that person out of commission for any length of time that it's almost always going to have an effect at least some minimal effect on home and beaten over the face thing and i put them out of commission for three weeks and the law firm is no longer able to get their ip person out to have their computers done their computers working and  essentially had a business for two or three weeks as a result meaning that they're no longer able to do both national international business is that what i just described in effect on interstate commerce if that's what the evidence prov honor i would say likely not and i think your concern is a valid one in the context of this case i think it would be helpful to think about what this case is not before we think about what this case is this case does not present a scenario where for instance mr smith happened to choose a victim at random just so happens to run a business that operates interstate commerce just so happens to i'm sorry but your question can i thought can i stop you there because as i understand it the elements don't require affect interstate commerce so it's really not one whether the whether someone intended or not if i understand the jury instructions does not really matter even though i know here that this person was targeted because of the protocols equipment i get that but that's not really  s hinged in the court's word on whether the victim's role with regard to her business was not coincidental and so that's exactly what we have here mr smith tracked down targeted and ultimately robbed and assaulted brutally assaulted the victim here specifically so we could get his hands on her pro tools software that she use in connection with your business this wasn't a case where m in other words if i my robbery i shut down let's say delta airlines not purposely because that's what i did i don't think there'd be a dispute that that would have an effect on fact that the defendant targeted the victim specifically because of the victim's association with the business owners don't need to engage in that sort of line drawing exercise in this particular me action to follow up question with this judge mar hands on a piece of software that she used in the course of her business now with an essential part of her business problem that i have is we we have said repeatedly in our case law and pretty much everywhere else the reason why a minimal of fact is all that's required in the micro sense because tireless was legislating in the macro sense in other words if you went into a seven eleven store and you stock up the storekeeper and made off with fifty dollars in the register even though the amount was very small that would affect commerce we have said because  was looking in the broadest sense if you had a one thousand or ten thousand dollars or fifty thousand robberies of a store life that that would not be did minutes but i'm asking the question wouldn't it wouldn't qualify right in this particular case the evidence shows that the victim was running a business that bought products from other states so that undisputed are essentially undisputed that the business operated interstate commerce and again the victim was targeted specifically for a tool that she used in the course of her business well let's just suppose i used the pro tools editing software and had it on me was directly related to a business that was in common that's the test the reason i ask the question is as i look at all of these cases i cannot find a single case and our circuit where we've discussed at length and the problem was armed robbery of someone on the street something that was valuable and that object in and of itself moved in commerce but the person w or i don't know that there is but again going back to judge blocks initial point you know you've now live in an age where increasingly businesses are changing from brick and mortar physical locations to sole proprietorship and ask you if it helps to limit the distinction you're trying to draw i'm a grocery store business i've received a couple of checks i go to the bank i cash the checks they amounted some way of degree i would say probably not enough again going back to the square from it was the proceeds for checks that i have received i just brought into the bag and i cash the n i put the money in my pocket i walked out of the bank  correct but again going back to this court's decision and part of the analysis at least in that case hinged on whether the victim's role with regard to the business was purely coincidental i mean if if you were intentionally targeted you know in a situation where the defendant knew that you worked for this business that you know that you were going to be walking out with that particular check that would be a stronger case and that's exactly what we have here  reasons you discussed is is an incumbent on the government to solicit testimony about what effect that would have another words because the probes were gone i was no longer able to purchase ten thousand dollars worth of  quitman interstate commerce or i was no longer able to conduct my business for the three weeks that i was laid up in the hospital as a result of that because that was targeted for business related activities is it that some of that evidence have to be there  i don't think so for two reasons one i think based on the evidence in this case the jury could have made a reasonable to duction that that's exactly what happened as i read i read i the entire testimony there's no indication of how long he was in the hospital they talk about how many surgeries he had and that he had a hospital stay but knowing how she was there and there's no discussion as i can tell about the impact that the robbery essentially bedridden she was sedated she was highly medicated she really didn't know what was going on and she said that that essentially that that state essentially continued until her follow up surgery which happened on january nd so a piece of intellectual property that was taken that he otherwise has a license to and appears to still been able to use after that and there's no testimony about how much financial impact that other wife had how can you know what the  robbery for instance i mean there could well be a scenario where the charges for attempted homicide property rather than just top sex robbery where there would be no actual financial impact because you know the defense is never actually committed and in that situation again tools i would have a one million dollars worth of business something like that i mean i think it again at a minimum i think the jury logically could have inferred that she would be that the victim here would need to repurchase the pro tools the line that this court has drawn vs is that the victim has to be directly engaged in interstate commerce here there was no evidence so on the sufficiency issue there was no evidence that the victim here was directly engaged in whether that there's some evidence that that some of the licenses or the eyelets have believe she said were on the thumb drive but her computer with somewhere else she had already started computer at a friend's there was no evidence from the government saying that she did not have the pro tools on the computer which is the logical thing or that the that the robbery completely took the pro tools away from her but again to th keep to ensure that federal crimes state federal and state crime state faced a crime what the what the what this court has said is you have to demonstrate that the victim was directly involved in interstate commerce dictums and d s there were actually three clearly established the defendant the song goes was never recovered that was established and supposed evidence was that she had to purchase another the same thing on the software suppose she had purchased more software with the fact that she had to make purchases in interstate commerce as a result of the robbery base offici under d s m garbus guy your honor i would say no that it would still have to be a demonstration that the victim was engaged in interstate commerce and that's how you have a robbery on an individual affecting interstate commerce to make it into a hans act to make it into a federal thirteen and rd at thirty three it's a two thousand and two nd circuit decision there the victim worked for a company that was engaged in interstate commerce but the nd circuit that said that the nexus with insufficient because there was no evidence heard by the jury proving that interstate comes again i would point the court to the taylor decision from the supreme court if the government's theory is correct that if somebody is buying something off the internet and then just having a business that is completely in trust state w sufficient in that case the victims in that case have their cell phone stolen cell phones that they bought in a fake amir's that they use for their business of selling marijuana if that was sufficient then the supreme court's decision tailored would have been easy but the