in any event you're on to the primary and principal issue in this case is that the issue of the element known as the interstate commerce element it affects each of the three counts that mr white stands convicted of and it also found its way into the instructions of this case which we contend are also commerce in that they were first to present tense and that the court in jones was quite specific in saying that the matter of past passing or passive u use of a or a burning of a private residence in that's has been used to try to distinguish the arguments which we are making here today from jones but i submit to the court that bed the emphasis in jones and the emphasis that must be given the language of eight forty four are has to do with used in and certainly jones says look at the function of the  vacant and there was no intent in this is important no intent on the part and no evidence of the same to ever rant that premises again there was no commerce going on at all under any sense of that word as to facts and in jones and as a consequence we say that not only is mr white not not properly convicted but that  that that fixes to each of the three counts as you will note that the third count which mr white was convicted has to do with a violation of eighteen u s c said three three after the fact which requires that in order to be guilty of that particular section of our code that has to be within the federal jurisdiction it was not for the same reason that count eleven and i quote it i believe accurately on pages nine and ten of my brief that indicates the defect in the court's list of cagle can you hear testimony and and could be none in the record that indicated that it was occupied there is a gray there is there were some articles of personal property that appeared to have been left behind that are shown in the personal belongings that were being actually stored in the property correct i don't agree with that you're on the testimony was that that the person left in that she left behind article so that  actually the person who had been out literally for months from that premises well sir your attention to two sixty three the appendix question back to the apartment during this time and spend the night there was stored for no commercial purpose and go it was not in interstate commerce at the tatt and simply leaving when you abandon an apartment leaving behind personal property  would not make it into interstate commerce so that in fact even if one interprets that is somehow a person who's left the premises wants to spend more for jurisdictional nexus misplaced or the wouldn't mr weight wouldn't mr weight seek rental monies for the period of time that are personal belongings were kept on the premises better point he could not your honor should they had been a victim under court order so the he would have no right to see can eat there was one that wasn't a victim correct no sir they reach the subject of an eviction fact let's say that there was no intent to bring this property back as commercial property are you saying that because it was an intent to burn it well you know i have to say this in all fairness and candor with this court if one assumes then as we must that miss kindersley version of the facts is the accurate version we have to assume that for purposes of this appeal then the agreement was that it would be torched after all tenants were out mob point with that is excepting that for purpose of this appeal and i think the knowledge i think we have to accepting that fact that would be a conspiracy under the state law of the state of west virginia not a federal conspiracy if the object is to burn a vacant building taken out of interstate commerce then the intent was one that's that's on the state law not federal law and i understand it's hard for courts in the i'm sure would be hard for a jury to adopt that but i submit to this court that is the law that this there is a reach that the federal government has in there is in into that reach in this case is when it's out of interstate commerce let me ask you that that seems to present an interesting argument in light of  that you had a commercial insurance policy and if he intended to burn it and no longer ever occupy it how is it that he kept the commercial insurance going on it it w seem consistent with actions that you're going to no longer ever have it will commercial property you know want to have it that you would terminate that at the very least but not only did he maintain it he went on let our own collected it looks like to me he really wanted this to be commercial property well ya know he didn't cancel the insurance that he had it was still within the insured period but i will point out to this court that in jones the presence of insurance was deemed not sufficient to put it in interstate commerce just like the utilities that is the teaching of jones and that's the teaching i rely on on behalf of mr white in this case you know all those things  rental property and there are cases i take it you can on knowledge from this circuit and other circuits that deal pretty direct with the issue at hand here and that is that if you have property that it's no longer being occupied and yet it is same time there are indications that it could be occupied again for rental purposes that it falls within the ambit of this statute i mean there are cases that seem to be fifth circuit seems to have a case pretty much on after the fact i want to emphasize then and i think i can you cannot over answer emphasize that there was one witness to testify mr thompson he worked for nationwide he was not interviewing mr white for the fire in question in this litigation it was a one question interview as it would relate to this have you had other fires do you think happened or something to that effect  mr thompson testified at trial there is nothing in that response there is nothing in all of the evidence presented that would meet the test of the requisite intent to hinder the prosecution in any way of kim candor who became a government witness in this case so that i submit that on the record mr white is entitle to a verdict of not guilty and that in failing to do so that there was absolute vacuum of evidence which would support the criminal intent required moreover as i pointed out earlier count three would require that the base level of the offense in this case the court puts the base level of the offense at twenty four as opposed to twenty based on the finding that the property burned was a do well there is no definition it was in another context but it is federal housing administration versus darlington and it's three fifty eight us eighty four hits nineteen fifty eight was a date of that decision it s taken from the dictionary taken from watch law and dictionary you can not come to the conclusion that the district court came to in this case and that i think mr white is entitle to the benefit of that and of course blakely believe that when a judge without benefit of a jury finding determines that someone has testified falsely that is committed perjury it is trial  think you're denying to that person the benefit of the sixth amendment right in as a consequence in view of the a book or in in its progeny i asked the court to take a look at that issue as it would relate to the two level enhancement for obstruction which were argued in the senate saying of mr white appreciate this court's attention appreciate likewise hope that i don't i don't get things out of order here and step on someone i'll try my best not to i would like to begin by answering some of the questions that were posed by the panel during mr cl argument i have different answers for those questions of course i believe the first question the judge when asked if i'm correct was does the record show at the time the fire was plan there was occupancy and i believe mr cagle said there was none and actually i would contend that the record clearly establishes that at the time the fire was planned there was occupancy now the woman who left the apartment our daughter died there and she just came out to dinner and after that miss kept her side what was not sleeping there regularly at the time but the other tenant was at the time the scheme was hatched which was in mid september if we go by the record at the time the scheme was hatched miss shannon dickens kitty the other tenant was living there her testimony is and this is uncontradicted her testimony is that she left the apartment some time after the proceeding the eviction proceeding was actually served on her on september eleventh i believe the hearing in the magistrate court in boone county excuse me was on the twenty order by its terms was not effective until october the fifteenth at midnight only some few hours before the fire was actually set but miss dickens kitty at trial testified that she did not leave the apartment until sometime in late september early october so the record it is at the very least a fair inference from this record that at the time this scheme was planned these mr wright you know the the final hearing on the eviction was on the twenty first but she still had time to get out and so he mr white may have said to the cantors i've already finished the eviction proceedings which which he had at and  kitty remained in the apartment for some time so it's quite logical and very plausible that the eviction proceedings were over the order hadn't taken effect yet but the proceeding was actually over and she was still in the apartment in fact that's the best way to read the record that's the most logical way to read this record so the court is right the tkinter is when my to for a yes to the apartments in van found someone there and made a decision not to do it so the answer finally your honor is yes the second question that that with that the panel raised during mr cable's argument was i believe this question did the defendant s rental money from the tenant for the time that she kept her belongings there and mr cagle answered that no he didn't and i don't believe the record supports that  it doesn't it doesn't numerate the months and we have a five thousand dollar limit that the magistrate can award but there's there's you know there's no way to say that that was not for the  that she was had left her things there and was still was out ten around with her friends while she was recovering from her daughter's death so i'll believe the the the record supports and inference or the idea that in with were both of these tenants eviction and i believe it did and i believe that mr cable's answer was both were the subject of an eviction and depending on what you mean by subject that's true but the legal reality of it is that this capture shod was not a victim in fact this mr white though he filed the suit never got service on here her if you read her testimony she didn't even know about and eviction proceedings she kept coming to the apartment to check on things in fact she found out about the fire rocking there one day to check on and get some clothes she was she was never a victim she had the furniture and other belongings there would not suffice as evidence on the interstate commerce element because her belongings were not stored there for a commercial purpose well that's not a question when tenants stay in an apartment they don't have to stay there for a commercial purpose to make it a commercial building by the same token if we are to consider mr miss catcher saga someone who had a legal right to enter the proper property and used it to store her personal belongings then it is it does not matter whether those personal belongings were actually used for commercial purpose or not is clearly that he intended to burn it down that's what he intended to do so it is your case depended on the tendencies of those two people continuing up until the time or existing there in the time the conspiracy was formed your honor i believe that the the record meets that test i believe we meet the test because of the evidence of the of the occupancy and continuing use of the building even at the time the match was struck so is not dependent on there being a belief of the jury that it would that this building would continue to be used as an apartment building no it's not now the other the other thing that i think is is at issue here is a is a matter that is dealt with by this court in both milligan and parsons and that is the issue of whether someone who is possessed of a building that's clearly involved in interstate commerce under the case law or under that legal definitions that we have here whether a person who has a building like that and then plans to burn it down through that plan removes the building from the reach of the statute and i think that this court's opinions in both parsons and milligan say that the answer to that is no that that you it is fair to look at what the character of the building was what the function of the building was at the time the scheme was hatched well let me ask you a follow up on the chief question on the intent and so far as whether it was intended to have tenet's again intended to burn it what is our focus here if it's intend to burn and we're looking at that it would seem to me an owner of a building could make that determination at any time and take it out in a state commerce by saying from now on i don't intend to have this is cursed commercial property because i intend to burn it and yet it seems like the act is a criminal act and the question is an intent to commit a criminal act be sufficient to remove something from interstate commerce where it where it would be it probably can be assumed that if the criminal act it not occur the building would can probably be continued to use as commercial property if your honor that that's exactly that's exactly our point if you would read it the way mr cagle or urges it's almost a catch twenty two situation it's almost ok i have a building that's involved interstate commerce i'll burn it down that'll take it out of interstate commerce i don't intend to use an interstate commerce in the future therefore the feds can't come after me that's what we believe is absurd and ridiculous and would in essence defeat the statute we have no case that that embraces that kind of logic or the statute concern and we believe an urgent court that both milligan and parsons view it the other way that is that it is fair and in keeping with the statute to look at what this building was used for at the time the scheme was hatched  well it does pose a rather interesting argument and i'm thinking in terms of some of the other cases out there that i don't think i've seen that where the the intent to commit a criminal act that would destroy the property would be sufficient to defeat interstate commerce claim for property that he had to a full had been used as commercial property and in fact is still being maintained commercial insurance and it would seem logical to me that the act didn't occur you would assume well this is not there's no intent to do anything else with it but return back to commercial profit there was certainly no indication another way look to how the building was use it to tom the plot was hatched and that the criminal enterprise was put in motion just as was done in milligan the other thing that's relevant on this point it seems to me is that count one is a continuing offense counting one is a conspiracy that begins sometime in believe september and maybe even earlier when miss kitty was still there when he was when miss catch or materials are lined up in other words the question on count one and count two might be a little different we believe that the evidence is sufficient and that the legal theory is sufficient as established in parsons and milligan  to justify and to affirm the convictions on all three counts but count one is a little different it's a continuing offense and it took place over a believe a several week and maybe more than more than a month period unless the court has other questions i'm ready to rest on my brief one one question out of curiosity and that is is it seems clear to me that even without the federal offense there will be a state of fan it that the state cannot see is so much less than a federal penalty or that is missed to prosecute this is less you know it it it it would seem to doesn't matter what color he goes to he's going to be prosecuted and he's basically r i am i would love to answer the question it's a fair question and i would love to engage i'm not sure i can answer that question without going outside the record  here we're in west virginia we're a poor state our counties are poor counties there is a lot of corruption and a lot of bad stuff the one in southern west virginia and we don't like this to get to that let's not crazy about if my wife gets to the remote before i do after dinner that's what we watch question has to do with that period lissa pose owner of this building this apartment building says i will these two ten able to use it for the purpose i wanted to use of force of once they're gone i want you to burn the house down if those were the facts would that affect the jurisdiction of the federal court yes your honor i believe that's a completely different kettle of gatos and another case the situation was like your honor just put it to me where there were other intervening things where someone said you know i'm going to change that building i'm going to let my daughter live there and you know i'm just right now i'm not going to rent that thing out anymore it's too much trouble i think then our situation as prosecutors is a totally different but what we have in this case is that the only intent to do anything with that building was to destroy destroy it through a gave he pointed out quite clearly it was intent not to come back and yet you answered it saying well that's a big difference because here you don't have that you see where we go with that well your honor again  that the distinction and this is a distinction that has been made already in cases decided on this very point it is a distinction that this court makes in milligan that distinguishes this case from gatos and that is in this case the only intent we have on the perpetrators part is an intent to destroy the building through a commercial through a criminal scheme in dados and in other cases i think one of which may have involved an old fitness center you have other things like judge traxler threw into the equation for me just here that you know outside of the criminal scheme something other than this plan with the killers to burn down there is evidence and maybe a good deal of evidence that we're taking this out of interstate commerce anyway it's out of it we're not going to use it anymore in our case in mr y case the only intent is to destroy it criminally there is no other intent and we submit that under milligan and parsons that is not and that does not remove it from federal jurisdiction a plan to to destroy a building involved interstate commerce and very bought through that plan to destroy it to remove from interstate commerce thank you very much your honor in the three minutes i have left i want to focus on the intent because is i heard the questions asked and the answers being provided  mr ellis believed that the difference if you want to put a china light on it has to do with the intent it seems to be the argument of the government that they wish to stretch federal jurisdiction to stretch the element of interstate commerce but basically assumptions and in cases fictions in the in the question propose our heard a question that was suggesting a scenario very close to jones in which there is a private residence no commercial activity involved no intent to have commercial activity involved and that is the gist of the defendant's argument in this case the testimony and the only testimony describes an intent to burn or a conspiracy to burn and empty building which was out of interstate commerce that is the case that was  you say that that the evidence in that case show there was no intent to convert that own a property into commercial property yet the issue here is whether this evidence to show an intent to take commercial property to another type of property which would be owner or something else outside of commercial property and outside of the indication that he intended to burn it is there any evidence of that the evidence was that well there was no evidence by the government indicating an intent to re rant or to offer it for sale none well let me make sure you understand my question so we get it it's established that it's already being used as commercial property and unless something shows that it's not being used as commercial property it i mean it would seem that that establishment stance my question is is there any evidence other than the indication that he intends to burn it that it would not be used as commercial property as some of the case of it in the case other than mr white's testimony mr white's testimony was that being that the intent was purely one of state law arson which we do have a statute of that and the penalties are severe perhaps not so much as the government in this it completely irrelevant what the future use of the property is going to be after it stops being used as a apartment building and what would be your answer to  answer is it is not completely irrelevant but my further answer is under the evidence in the record of this case there is no suggestion even of any intent to put it back into any commercial endeavor whether it be renting or are selling that property there is none whatsoever that we have to view the testimony and evidence in the light most favorable to the government they answer that question  somehow a question all i think it's i think in large parts this question a lot but i don't believe that the court will find anything in this record there would be indicate any intent to return this property to some commercial endeavor in the truth of the matter is it hadn't been a commercial endeavor for months there was no economic activity associated with it in the  judge in all due respect i think litigation in which a person seeks damages is not cut his it is not contemplated is a commercial activity as a legal activity but it's not commercial activity within the