want to start with your stiction juvenile jurisdiction yes yes i am going to start with you in all jurisdictions and it seems to me that the proceedings in this matter began october one thousand nine hundred nine the government cites in rate martin as the triggering date for jurisdiction as the initiation of criminal proceedings the fact is what they did is they dismissed the initial indictment and filed another indictment after the kid is twenty one years old after they found out no you know they found out years before your own years before and let me tell you why they found out years before in their opening grief the government  litany of things that tells us why they knew this kid was a juvenile back in one thousand nine hundred seven in their brief piece he says the government says it starts no way in february one thousand nine hundred six the government says they knew about his booking in los angeles they knew about the complaint in los angeles they knew about the charges in los angeles they went down to los angeles they interviewed the district court in the eastern district of california what is true name once the first time was about a week actor's initial arraignment i think that was in the summer he said i'm not with the other name jeffery stan yolles stood up and said the federal defender in about a week after the indictment i think it was december i want to see december tenth i could be wrong on that date but in december and says your honor i wish to be relieved i wish to be released because my client is a juvenile we don't want to represent the juvenile in this capital case we want to represent the adult we are there for asking us to be handled out i'm paraphrasing present at that hearing was assistant united states attorney mikhail rodriguez who was mr  know prior to your client's twenty first birthday what is true name was and that you in fact was a juvenile what should they have done at that point what they should have done is commenced an investigation grokked everything that if you file i think i think i hope i've got this right if you file a second indictment and it's identical to the first indictment your speedy trial time is only told from the end of the beginning of the first indictment to the beginning of worry about it but you don't have one but we've got prejudiced because they didn't try him as a juvenile well prejudice under speedy trial he's had to wait for years to get to get to trial which sort of dovetails into the speedy trial thing and that's one that has to do with my argument about whether just shove was reasonable in permitting co coun me and said that's the briefing schedule judge and the judge says no i can see the briefing schedule because the ninth circuit will object to it if i do sort of briefing schedule and so in fact they're still making motions new motions in that same trial  have tried him as a juvenile that was an option severed and tried as a juvenile who have severed and proceeded against him is that you as a juvenile or or they could have just missed or they could have proceeded as a juvenile pending during the pendency of the rest of the trial and if they got a transfer then joined him back up with the rest of it or they could have just messed in referred the matter back to state  in order to gain a benefit and i don't think i submit to the court the government can do that you can't he you can't do an end run around and stealing state court for the p k i events or whatever it was in los angeles right and that no your honor i know because what happened in los angeles is he stood up and he said i'm a juvenile in the middle of trial he said i'm a juvenile that's federal juvenile justice act would he have been sort of liable to be tried as an adult i would have liked to have been able to make that argument i have made that argument in cases that have been equally as beaches without a  death in front of the same judge shot and i prevailed where again he was not treated as an adult i do not know in fact the government says at the beginning of this argument he would have absolutely been transferred but if the conclusion of their argument the government concedes that it is only likely that he would been transferred i would have liked to have had the opportunity to make that argument and i did not i think we're court my name is james greiner i represent songs on the when i'm going to argue a couple of things but before i do that i'm going to do two things number one i'm going to trust the court and apologize for the and artful at times brief that i submitted  i'm not here trying to waste the court's time i will try to make clear on my arguments and answer your questions i'm going to address a couple of issues and leave those that i don't address just on the br because i think these are the important ones that this court should look at and reversing or remanding the case number one is the four zero four b evidence issue number two is the instructional air and the alibi instruction you go until you hear me or one of the three of us because the evidence that came in regarding p k i in los angeles was not sufficiently similar under the case law to have it brought in the hawkins i'm not sure that that's true i think during the course of the trial at least one witness identified at least from the testimony th gave an identification to the jury of indifference was an unearned quiet issue you certainly didn't on the defense so i concede it well not conceding that certainly not conceding it here especially with my client because we had an alibi defense and we even had that in were scanners the type of crime in los angeles was not similar that involved the same group it involved many members of the same group correct all of the persons involved in the  jewelry store scenario that this case is involved with involved in the los angeles events the answer is yes isn't it it is it is and that was like this one it was certainly one so the owner of an enterprise with a plan to carjack kidnap whatever and get information to gain entry to a place of business was that it was in the planning stages to the leaders down that long i mean when they had dean but that never got conveyed to the people that were circling the parking lot at p k i that were arrested so whatever vandy and john that long and then when planned that information never made its way down to the people that got arrested p k i that's why i say it's not similar because whatever my client and others in the parking lot got arrested for they weren't doing the same thing the next issue is the instructional error in this case we're looking at a conspiracy to commit hobbs act robbery the government is trying to uphold a jury alternative theories didn't intend to permanently deprive the jewelry store of its jewelry there wasn't the specific intent instruction missing the specific intent instruction is what deprived the defense of being able to argue to the jury it was almost like a moving target conspiracy to commit hobbs act robbery robbery home invasion when in fact what it actually was was a burglary in the jewelry store not crime under section eleven eleven which is really what the government was trying to fit my hands to the house from the babysitter the binding of people inside the house all terrible acts all the need to talk alibi here i think it points out that what occurred at the trial level and why it should be reversed the jury came back with a question regarding alibi does my client need to be  robbery versus burglary of a jewelry store my client's not there he cannot be convicted of aiding and abetting because he isn't knowingly helping out any of the coconspirators in the house the jury believe the alibi defense at least to that question therefore i submit based upon the instructions that should be reversed and i appreciate the opportunity twenty six and he gave me press permission to proceed with the appeal in light of this court's order i went downtown sacramento in the rain yesterday morning to see him again and the just the how many days and robbery occurred over ten years ago ten years and two months ago there are still four defendants in this case who get to come to trial in the eastern district on this particular case one of the reasons is that what should have been a state court case has been made a federal case with all the attendant difficulties and it's our position clearly your honour's and i can see this in our brief or my brief there is concurrent jurisdiction on a number of state and federal issues in criminal cases however there are significant problems with hobbs actual restriction in this particular case they are fact intensive and i'd like to argue those briefly first of all your honor  opinion the home grown marijuana for medical purposes normal tare within the state of california and partly through the personal use of someone who had an authorization from a physician under a law passed by the people of state court was reversed i think that what we're looking at here is a business as opposed to the individual robbers that was really what look was looked at in lynch we're also saying your honor in terms of the evidence in this terms of the jurisdictional aspect of this case these hung clearly had the most information about which is that he was doing the purchasing the hong testify again that the gold and diamonds were them and they could have been interest into state in nature by many and i think this is an important point which was touched on briefly in my brief but i think it's crucial in terms of whether or not there was an impact on interstate commerce first of all as i said hans seeing was really the purchasing agent and not the know it finally what i was going to mention and bring up is that there was no was not a robbery it's really a store it was an attempted burglary of a jewelry store and there was literally no evidence presented by the government as to what would have been found in the safe in the jewelry store if rob was going to go in mid day and there's jewelry everywhere and there's money and there's gold then clearly if that was rob there would have been some effect holds a gun to the head of the wife of the bank president and says i'm going to kill you unless you call your husband and tell him to withdraw money from the bank that's a burglary and not a robbery they never got in and that's important because the goal which the government is basically saying is the jurisdictional hump here was order by honk theme next door so gold which is largely from inside of california the fact that the gold actually went to hong theme rather than finance it and there's no evidence presented as to what w loss of jewelry inside the jewelry store they had made several trips to the jewish store to see wolf inside the scoped out a jewelry store so that that doesn't hold water let me first start by saying there's the indictment clearly charges that the defendants with trying to rob property that's in the custody of the person the possession or the custody clearly in this case like in a bank the custody of the victim the jewels are inside the store it's in the custody of who's hong the target was the jewelry store and make no mistake about it they wanted to do is store if you wanted only a home invasion instructional era i think there is a red herring here the reason why it is a red herring is this the defense that's wrong then when proffered at trial was that he was not there he asked and received an alibi taking but what is the a lawful taking it means the absence of the state the absence of acts accident or some type of legal claim unlawful taking has to be with a specific intent to de for taking or obtain a personal property from the person or the presence of another against his will by means actual or threatened force or violence or the fear of injury immediate or future to his person or property property custody there is some case law that points to the fact that the hobbs act was derived from the i think the state of new york penal code right in there are cases out there aren't there that say that a specific intent robbery instruction requires lying about the intent to permanently deprive yes much pretty much the same effect that isn't specific intent to do something a lawful no in both cases the p t i and the stock in case they were committed around sixty five and six o'clock and the reason for that was the intent was to go and take the owner asked to get that information get to keys and go back to the business establishment after it had closed he did not want to have a situation where employees and customers were coming inside the building council is incorrect when she says that stockton case furthermore in p k i it was just two weeks after the start in case the composition of a robbery crew was about the same the hierarchy of the leadership was similar it required a hostage taking testified that the owner his brother the victim the murder victim in this case traveled to cambodia with gold and jewelry manufactured them in cambodia because the labor was cheaper there and then those items were brought back to phnom pick and then sold the impact on interstate commerce can be both probable and in this case i think it's direct and as your honor pointed out the recent lynch case your honor the first time that the government i believe was aware and i'd have to defer to mr wong on the specifics as i was not part of the case at that point but the first time that the government becomes aware is when the announcement in motion is made in court and believe is the first time the argument asserted by just that counsel is correct it isn't he mr bigelow is absolutely correct to say that at some earlier point potentially appointed public defender someone of that nature stood up and said we don't want this assignment this guy's a juvenile your honor that i don't think that's an accurate statement of the record i think what what the federal defender said is there may be an issue and the new counsel bob peters who is coming in  counsel reference to the court i'll get back to you and as laid out in the government's brief he then signs a stipulation an order as long and when and before then later filing the juvenile issue in other words the court left it to the defense twenty thousand pages that are available the government has information on an individual it knows this one and when the information about bow lou actually indicates it's someone who looks different in size and and wait  and ninety pounds i don't want to use both names in the indictment i'm sorry not the government use both names in the indictment in the original indictment yes your honor i believe that the government did include both names the understanding being the loop yes your honor but i think the issue here what doing that what efforts to the government make to determine the age your honor i think that the the efforts that are laid out in the government's very far that essentially if you weigh all the facts known most of the facts lead to wanting a win and then the defendant in court who as mr bigelow points out in march of one thousand nine hundred seven apparently in a still proceeding stands up and indicates to a court he knows full well how to address the court say i'm a juvenile through my attorney he gets the federal court he doesn't have that he goes in and essentially misleads the district court and the government throughout the proceeding and he's the one in the best position to know announcement in court i think the inference is he believes he has a safe harbor he's twenty one and now the government can't take any action against him while obscuring this from the district court in a ruling in this favor on this jurisdictional issue i think would encourage defendants delighted district court judges and put a district court judge in the position of trying to figure out everyone's true identity and i don't think that that's appropriate and as you have pointed out earlier in mr bigelow's argument anything if it were known to the government at that time i think there's a very good chance in fact without a doubt the government would pursue for transfer to adult proceedings it already happened in l a county and a state judge has decided an adult sentence and until treatment of the criminal justice system  appropriate there's nothing in the record suggesting this would have been about lou's fate as well that he would be treated in the federal system as it as a an adult and in addition i don't believe it's in the briefs but he had also been convicted of manslaughter in santa to an adult sentence after l a and before the federal so system so the government would have had quite a bit of evidence to present at the time of any hypothetical juvenile proceeding had mr lew been forthcoming with that identity i also wanted to briefly address unless the court has more questions a juvenile status on four or four b i think it was asked of one of the defense counsel whether identity was an issue in the case and it was sort of a convoluted answer but i think it's fairly straightforward that identity was an issue in this trial and you can look at mr chance opening brief at page ten where it essentially is asserted that identity was part of the issue and part of the defense in this case and finally on instruction if anything in this case i think the additional hobbs act element of interstate commerce different from common law robbery may have a for these defendants additional process because it essentially was the  focus of most of their defense in addition to the plan was a home invasion was that it was interstate commerce was not and that and the record in the in this case the age in both interstate and foreign commerce and for those reasons i think the each of the defendants sentences and convictions should be upheld   was found in state prison we took him out of state prison he had been convicted of killing a sixteen year old girl in santa clara county was doing a seventeen year sentence for that he was doing a thirteen year sentence at p k i for the attempted burglary and robbery of that particular case so if this case had gone to a transfer type of hearing in district court the district court hearing these these these facts about the defendant were not have i don't think the court  defendant in his background as well as the crime he's charged with