situation where it would be the regulation of interstate commerce would be undercut if you did not also reach the in state activity this would be like the railroad cars in the southern railroad case the bridge in the overstreet case the telephone united states and here we have in this case we have no effect on interstate commerce even even being alleged or charged in this case although there is a possibility of such a charge under the statute and that brings us into what would phones compete with legitimate phones that are in interstate commerce and thereby also have a substantial relation and as we pointed out in our brief there's an inability to segregate between the interstate and intrastate use of these phones in the same way that there's an inability to segregate in the wife's case between which kind of cause intersection with your wiretap and so you have to reach both of them so applying the correct substantial relation test would clinton was dealing with a different a different situation where there is to be proper substantial relation create in the next years when a state commerce which doesn't exist in this activities affecting interstate commerce has been the same for it for all through this with the supreme court's jurgens on the commerce clause and in fact the requirement of a substantial relation actually originated for instrument constitutional power regarding the post office which would come into play that doesn't come in here in so far as we're talking about the commerce clause and then it would depend on whether whether they're doing so had any substantial relation to interstate applicable instrumentalities and other and other matters it's like you can't you can't tie up a dog over here and leave its tail wagging all by itself over there it's always been one dollar and what the court didn't look at is it's tied up the whole now this reading now that we've seen since then where if you can that something can be an instrument of commerce then it can be than it always is it just goes around the back of locus where lopez plug the dyke over here the water just starts coming out on the other side because it opens the door to this boundless power of regulation where anything that's ever used as an instrument of commerce street a car could be gasoline could even be the air which is used used for anything because a computer can be used to transmit e mail or get on the internet or engage in a distant commerce that means that even when it's just used for word processing something you could do just as well on a typewriter and has no bearing on interstate commerce and all that that still can be reached th secret service and when you threaten the president by picking up a phone in vermont or wherever it goes into some secret service data bank and it's not regarded as being a serious possibility of really injuring  maybe that's the short answer and in terms of that guideline i would also want to point out that that guideline and it was recently amended and the old guidelines said it has to be a crime of no nonviolent offenders and that created a split in the sort it created some dissension within within circuits particularly with respect to the question of how that relates to a threat which the person does not have the ability or the intention to carry out and i think one of the cases that resulted in the injustice of the application or the denial of the application of that guideline to somebody who made a threat that had no ability or instructions to carry it out and as a result of that sort of history you have this newly amended line talking about a serious may please the court my name is john rice is just a united states attorney for the northern mariana islands and you are the first issue i would like to address is the clayton case and as the court pointed out i think that basically what councils arguing are separate and that they don't have any effect one phone call doesn't have an affair act on any other phone call and i think when you think about that it's not really true and i think it helps explain why instrumentalities of interstate commerce like cell phones is very possible is is that people would be reluctant to answer their phones and businesses schools courthouses individual employees it's not a general policy we want to avoid court being canceled for instance the judges in this case within several weeks on three separate occasions had their calendars canceled they don't want that to happen they tell of course office from two o'clock to five o'clock the only answer the phone and that is going to have an can you know i think but the point is is that it's much less likely that someone is going to make a threat if they don't intend to carry it out and if it's a threat just to disrupt but to be taken seriously then the phone is much more of a danger because the anonymity you don't answer the phone to someone wants to make a threat they have to come in person and then they're exposing themselves much more to the possibility of prosecution and quite frankly you are if there is a real danger and there is go appellants argument in his reply papers that the government's position means that any use of the phone albeit a phone if you write on the back of a phone that there's a bar and therefore that use of the telephone is we constitute a violation of eight forty forty eight and i don't think that's the case i think it's clear from the language of the statute that i people can call in to that line precisely and they can case yes i think as you pointed out judge nelson even if there are restrictions on outgoing calls and there were some restrictions but they could be made the calling card to come in and that was that a trial that that international interstate foreign calls could be taken on these phones directly earlier i think that the threats to the president are different i think they're much more numerous and they're dealt with in a different fashion and i think it was clear in water that there was no evacuation there was no necessarily altering of that the president's schedule not to say that there can't be a threat to the president that would require the exception because if it is made and it's made by someone who has the wherewithal to carry it out and it's treated by the secret service and it does result in an evacuation then i think that it could the exemption could apply and i think in this case important to know that the judge munson in making that ruling had access to trial had heard the threats had heard evidence about the threats had heard what happened so i think when the court found that this was exempted as a serious threat you consider both the generic fact that it was a bomb am i believe a serious threat to cause physical harm not intent to carry it out i think that walther does not require the actual intent to carry it out i think the same exemption that applies with a jury instruction  for the threat that it did not have to be a true threat still applies and that the mental capacity reduction is exempted if someone makes a true threat the government need not prove more the court find that there was the intent to carry  the issue there is whether there was a true threat in the sense that the person making the threat intended for the person receiving the threat to take it seriously which would clearly have here in fact was testimony from this because duma from the emergency commerce this was made to rest wholly on it just being a telephone and when you do start talking about things like the cause like people becoming reluctant to answer their phones or other other things that as you start piling want to talk of another