race in this case this was a an exceptionally station and bank robbery may well have been the most sensational one in the history of the state unfortunately proud councils attempt to show that to the district court left a little bit to be he's get sent to a different district you know and i agree with that and i think that's the buy you case one thousand two cases people can know about it but unless they're honing in on a particular defendant these gentlemen however particularly the guy that did the shooting mr battle  he was apparently quite famous at the time giving press conferences while he's on the run there's this huge manhunt and finally eight days later he's cracked down we get that from snippets within the briefs and snippets within the trial court we don't have a real good record on that and frankly the pretrial motion on this that was submitted to the magistrate judge if that's all there was i would not have brought this issue what happened though was once they get into the actual jury selection we start getting the feedback from these potential jurors he he was a challenge and i believe the challenge was overruled your biggest reef tells me it turned out his mother was in the area at the time of the robbery right well you've got to get people like that out on the jury panel but that doesn't tell you that everybody's mother was in the area the robberies pretty safe to assume that wasn't  so when you're talking about presumptive prejudice and actual presence on the venue change what truck council tried to do was show presumptive prejudiced and he failed and he didn't do it no doubt about it the way this comes back up i would suggest is actual nonsensical yes although i don't think it was conclusively proven beyond a shadow of a doubt that it was an ar fifteen but i think the government had an expert that said sure looked like one let's assume that it was absolutely conclusively proven that it was an a r fifteen at that point to bring in the sample gun and show it to the jury and it was in fire position and all that lie in the will of the government take that the chance that this is prejudicial material coming before the jury given the rest of the proof in this case they didn't need right again i wouldn't know thank you but most of prejudiced if you have i mean it's true that sometimes people press too far and then you get an appeal and you wish you hadn't done that but you have testimony that this was one of the maybe that alone had it maybe he did it three things back how we saw this gun maybe a smaller gun than i was a visioning but a gun nonetheless it wasn't admitted into evidence but i think that's relevant fact that it was displayed and shrilled shown to the jury just highly prejudicial of an aspect of the case where the defense was actually going to win that point they were allowed to come in and basically negate that argument that look there was no gun found who had it we don't know it's more reasonable doubt w yes this is what goes on and that's why i was going extra on that one the testimony was the flash suppressor could be used on many guns not just they are fifteen and as i understand it the government's position was this connects my clients to this robbery because he had something that could have been put on the on this gun but that's like saying they see some shoes in his apartment or his home and by golly the robbers had shoes on so therefore there's the connection you know the difference you and i agree with that the problem with that though is that there was no flash of press or at the robbery none i mean what was the point this is just like they are fifteen why did the government who probably had the defendant figuratively  certainly these are powerful pieces the evidence was the jury convinced by that point by the time they got there that these guys were already guilty we don't know what was what was the record defense i wasn't the guy or something culpable i specially of what he got assigned for he was assigned with eight levels of increase almost every one of them based on other people's conduct that hears especially by the lowness at some point in this proceeding i think we're going to have to have some kind whatever it was ten years plus that's two that's too much for this person i'm going to recognize that the guidelines are not mandatory longer and seems to be something different right are alternatively you have an approach that which was done which included we just pick one note that the one two level increased for the vitally injury that wasn't appropriate here and so it would go back and if the district judge hears that you get a different money what does that mean the person is restrained tied locked and bound up in this and like every bank robbery has a two level increase for being tied level but to me those are the two most serious ones the other ones obviously are concerned as well because judge would certainly get this case another hard look if she knew that the guidelines were not mandatory especially because my client pled in a very difficult case to government this time questionnaire to all the jurors based upon their review of the questionnaire consul had an opportunity to select and call an individual in any individual who they had concerns about counsel did over the course of almost two days rigorous forty year along with the court and i think the record shows that in addition the court was very careful in asking consul whether or not they if any juror who said they were aware of the crime from the reports of it actually said i'm sure your honor would be just to my record who were removed who clearly had some predisposition based upon news reports or removed from the others which were mentioned forty nine were excuse for various reasons the normal hardship conflicts and schedule knowing police officers or witnesses or being related to or living in the area things like that your honor is with respect to the demonstrative aid  i seriously disagree with consuls characterization of the weapon and the reason why it was put in it wasn't a kick in the head it was not unfettered action by a prosecutor to try to pile on there was a fifth count in this case specifically account dealt with whether or not mr vata lone who was a codefendant carried a fully automatic weapon fully automatic weapon under nine twenty four c carries a thirty year consecutive term that was a very hotly contested issue to which defense counsel at trial called his own expert there were parts found and entered into evidence which the expert testified were removed from an a r fifteen or m sixteen style rifle and those parts are the same parts that would have to be removed to convert the weapon to fully automatic those trigger assembly and some other parts that are relating to the ball carrier and the inner workings were changed out the purpose in bringing in the demonstrative aid were just to show the relevance of the parts that were recovered there was testimony that bought alona and some of the others talked about converting their weapons to fully automatic and as fact had ordered parts those parts that were removed then found at another location with the same parts that would have to be removed the fully automatic parts installed to convert and they are fifteen and sixteen in the fully automatic mode the officer who had military training who responded to his testimony was he believed that he was being fired out fully automatically so that was a hotly contested issue the reason to bring in the car shorty as that our expert described it was to show where in the gun these parts belong and how it worked and why it would converted to fully automatic we were absolutely unsuccessful in persuading the jury that the gun which was not recover was fully automatic count five was not guilty so this couldn't have been unduly prejudicial it couldn't have inflamed the jury to possession of an m sixteen also came into being and was introduced there were three thirty round magazines which specifically fit into an a r fifteen and sixteen found in mr matson office truck when it was searched so this was not an attempt to pile on or throw in irrelevant evidence the judge carefully considered whether or not the flash suppressor went to a fact a consequence and that was whether or not mr matson ought to actually possess and i was sixteen during the robbery the fact that he had that suppressed which fit and a r fifteen m sixteen made it more likely that he actually possessed that weapon in addition to the three magazines located in this truck made it more likely that he other statement made by consul that this was some large weapon and we don't know what the real ones looked like or some some question about whether or not they had seen this type of weapon well they did in fact see this type of weapon the jury  photo which was published to them which was taken off the bank surveillance real which is a picture of one of the robbers in full dark clothing with groups amassed vaulting the counter where the teller spaces coming through that opening w in fact a car shorty and a r fifteen shortened version that was identified by our expert and he said that's what it appeared to be it appears it is same style weapon that we have in court foreseeable of course the ability issue here is the key and pinkerton speaks best to that where basically to find that an act is reasonably foreseeable if it a necessary or natural consequence of the unlawful agreement be a lawful agreement in this case which was laid out they want in any case the bank they geared up with dark clothing move masks so my automatic and arguably fully automatic weapons one individual at least wore body armor they indicated in their discussions from testimony of mr daly and in the  their heinies faves mr daly indicates that if the police were to come the belief is that they are going to use force to escape as soon as that is stated the use of limited remit and not on on a full scope re sentencing because we believe that each one of the two level enhancements that was assigned to to the defendants and there were four  predictable that one guy is going to be more or less like on the many important part of the track and their point yes to go out and carjacks them that's that's kind of it seems to me basically saying that  they said reasonably foreseeable under pinkerton is it is necessary are natural consequences of the unlawful agreement they stole a vehicle well actually they stole two vehicles to make good their escape they had someone in the bank say one time one time that and that was slang for the police for coming so they had a code to know that the police were going to respond and they had to get out of there and they had to take whatever means were necessary to escape their fully arm they're going to use force against the police one of the police arrive there's a high probability that they're going to be separated or somehow planning has to go to plan b or plan city and mr bott alone and decided to jump off the being fired upon so the police are there ready it is totally foreseeable that he is going to use whatever means to escape and he has a firearm so when he jacks for that as in carjacking he jacks the bakery truck  and the older gentleman who was driving at steps out that's that should be anticipated they left him behind with no means to exit the area the gentleman of the bakery truck actually tried to carjacking is always reasonably foreseeable when you do a robbery not necessarily on a body in this way when it be in this particular case it is forseeable and the reason why i argue that to the court is because the two co defendants who are being held responsible for the carjacking are the ones who decided to leave their man behind they created the situation by fleeing that necessitated the carjacking they had to know they left him behind then take no your honor probably probably not in this case the reason being is because they had already stolen two cars so they already knew that the group as a whole was willing to steal vehicles to escape so i think the fact that they had the stolen blazer that this caved in and then they had a second vehicle which was a cadillac which was stolen and that they had preplaced out of the pre determined location that indicates that the theft of an automobile or taking of a  what the court is going to do with this matter i would ask the court to consider going ahead and ruling on the matters particularly the sentencing that is to give guidance to the district court on behalf of mr madison ave we've already lost these issues in the district court