the jury and maybe that's one of the fundamental parts of the sixth amendment it's certainly possible that all the jurors agreed she took my each of the three times the government claims but it's also possible given the instructions that plan to rip off the bank i think it does your honor because i don't think it necessarily looks like a continuous plan to rip off the bank and there certainly wasn't any allegation in the indictment of that that to take some money and see if this works and she took it and then later on she thought she that seemed easy maybe i'll try the second time and she took it and then she tried a third time because it was easy the second time and that what i think clearly be under any circuits version of the of the law three separate takings and three separate tests and i think the evidence i mean there's nothing in the evidence that seems to me that says one way or the other whether it was the version i just suggested or a version like your honor suggested where there was some plan at the beginning of the second day or the beginning of the first day that i'm going to take seventy thousand dollars and several steps over that start the one thing that seems to come out from the video and you know fairly first of all i think there is some debate about whether it was exactly the same sort of organization the time we went back and forth i think in closing arguments about what the videotape really showed for example i think m what matters i think an argument could be strongly be made that at least the second time there wasn't any sorting of money for example going on which is one of the big points they make about the way it was done the same each time now i'm not sure the government actually argue differently on that i think ms rivera the bank investigator basically admitted that maybe the government could argue different but i think it could be argued differently second of all your honor i don't think using a same modus operandi so to speak means there's a preconceived plan each time it equal if you do it one way the first time it works when you decide a second time to do it later on you're probably going to do the same way they work just like when you rob a bank you're probably going to rob a bank each way the three thousand ways each three times but it doesn't mean you're planning all three bank pro same time so i don't think the fact of a similar modus operandi really goes at all strongly to the idea of some preexisting common intend at the beginning about all three takings how do you think the jury instruction well the jury instruction i think that should be given is the specific unanimity instruction i get i requested which was that the jurors had to agree on one of the three takings the government was are going to place they had to be unanimous as to at least one of those three takings if you're going to say that the government could argue this common preexisting and type a theory i wouldn't post that because i don't believe it was sufficiently alleged in the indictment but if the government was going to be allowed to do that i think the instruction needed to track something similar to the language in the billingsley case if it was going to be allowed and feelings lee talks about it believe  finer almost useless right and i believe the videotape is far from clear enough ok and i don't mean like that here let me explain i first of all i think it's a it's a a sort of weird application of harmless error for your honor to be having to do frankly because it's not like this putting together inferences and deciding when it persons can be drawn from the evidence you're actually sort of looking at the evidence and making your own judgement now if you saw something like this then i think probably harmless exist but you have to remember when you're looking at the videotape that what you're really analyzing is not what you think you see or not even what you're pretty sure you see or not even what you are convinced beyond a reasonable doubt you see or not even what all three of you are convinced beyond a reasonable doubt what you see it's whether you can stay beyond a reasonable doubt that no reasonable juror could have a reasonable doubt about what they saw on the videotape but why is there any different  d that if you saw me do this on a videotape that would work but you have to be a little more careful can't tell beyond a reasonable doubt that the number of employees that comes up is different than the number of envelopes that goes down so if one of the things on the video was absolutely clear no reasonable juror reasonable jury could have a reasonable doubt and i'm sorry yes i think probably you have to combine the two with i mean it has to be more than a thousand dollars correct yes and then so we have this other evidence that money is missing correct instruction along the lines of we have all of you agreeing on a particular occasion plenty of took more than one thousand dollars would have cured the problem yes and i think in the context of the circumstances of this case we're where the only argument was about three specific times points that you might have made instruction more specific to say on one of the three points the government's argued so in theory it could be some other point i suppose but the curiosity was your argument about  was and the judge thought actually i didn't try to argue for less than thirty thousand dollars which would have been the next step down under the guidelines i did convince just talking to you that was under seventy thousand dollars and between thirty and seven he doesn't matter so there was no argument about that good morning may please the court anthony montero for the united states the district court in this case did not abuse its discretion in denying thing and in any instruction and that is the issue before this court the government properly aggregated that is the result that you have to accept and i think you see that in the persian case once the government is allowed to aggregate individual misdemeanors into one to get reach a felony conviction you by definition are saying that if any one particular one wasn't enough by aggregating it you get to a felony but the difference here is that you have three separate staffs that the government emphasize both in the accounting and the argument well i think respect respectfully your honor if you look at the entire argument the government always referred to it as one step to did they did talk about three separate takings and those four words are used a lot them for taking so yes you're right but i think that the government's argument was consistent and in fact i think that if you look at the first superseding indictment the government talks about the theft occurring over two days you know beginning on march twenty third and continuing the march twenty fourth i understand that defense might say that well there's some plan or scheme when she goes home at least in the train some of these steps right she does your honor but it's so you show up for work you take the line take two then you go home and you come back and then you have a third that we've she was in the cash bar she was in the cast about wednesday and thursday and she quit friday morning i think that if you look at all the facts as they come in the fact that it's under a twenty four hour period that she does the three takings the fact that she follows the same pattern and the same modus operandi every time i think that she maximized i mean in three taking she got approximately seventy two thousand dollars i don't think this was and the fact that as she's counting she is as as even came into evidence two hours before her taking she segregating one hundred dollar bills into her pile so this is not a situation where she just reaches into a bag of money and you know shoves it in her shirt this is the situation whe maximizing her potential she's maximizing her ill gotten gains she's making sure she's got the hundreds and the high bills how does that that might work for either one that same day but it doesn't really count well i think that you see the second i think you see the same pattern in the same scheme on the second day and on that third takings and i think that you see her employ the same techniques the fact that she's also evidence came in that she's destroying documents over this period she's doing everything to maximize her gain and to make it is impossible to trace as fine and then as soon as the investigation starts she quits so but i also to go back to one of the biggest issues because it's really just brushed on  that i think the geographic of the temporal proximity strongly support in this situation that it was a common scheme i think that when you're looking at nevins richardson and some of those other cases that are talking about they're not really dealing with aggregation they're dealing with some other issues that pop up for example trying to go outside the statute of limitations or trying to go into a creek guidelines in a post guidelines analysis none of those issues none of those fairness issues would not cause equity issues are present separately well your honor i don't think the underlying equity issues are in the continuing criminal enterprise i think that there are specific reasons why you'd want to prove it based on those facts and richardson which keep in mind all of the cases tell us these are very fact specific issues i think that those facts there are equity reasons why you'd want to prove that i don't think your word is so clearly part of a one common plan i just don't think if you need you need to get to the instruction raised with all of you agreeing on a particular overt act that took place why doesn't there need to be some instruction here that all of you need to agree have to occur at a particular time well i think that there there is a special jury finding that says all of you need to agree that the aggregated thefts were over a thousand dollars and i think that satisfies the concerns that would be addressed by such a by such an instruction so that the jury is agreeing that they has met the elements of the crime but what the jury is doing is able to take all three of her actions and aggregate them into one theft which is in fact what it was in this case even though they may disagree on which which to have took place or which taking place yes your honor i think you either have to if you to accept the government's argument you have to be willing to take that step which is that yes three could agree on that it was the first one three could agree a second and six on the third separately if the court were were inclined to disagree i just want to address the harmless error analysis because i think that as the court noted that even if the court did disagree with the government that aggregation was not proper in this case i think that there is an overabundance of evidence that it was harmless error not to give the united any instruction in this case and that is really what we're dealing with the harmless error with regards to an end of any instruction leaving aside the video evidence leaving aside the photographic evidence i want to highlight that there was the testimony of pat rivera and the defense refers to that in its papers as argument that's not argument that was evidence she was the only person who viewed all forty eight hours of the relevant videotape from the nine different camera angles she talked about that this was the only person she observed not following prepping procedures destroying documents segregating cash and then sticking her hands beneath the counter and stealing it she talked about how there were hundred dollars being segregated and respectfully if you look to her rebuttal i think the government cleared up any misconceptions she makes it very clear that this pattern was followed for all three thefts not just the first one and if you look at her rebuttal around governments extort of record one fifty seven you'll see that she makes it clear that it was the same pattern and that she observed this throughout the videotape so her evidence comes in i think that from even from watching the videotape and the amount of times that she's putting hundred dollar bills on the pile i think you clearly get that it's harmless error that the defendant clearly established clearly stole over seventy now around seventy thousand dollars over the twenty four hour period if there are no further first of all here i don't think pat rivera the bank investors conclusionary opinions about the videotape gets a lot of weight when the rest of the videotape was made is it your i mean she was a witness who was on the side in the case it's interesting that mr montero just referred to quote rebuttal unquote so i think the real evidence that it comes down to here is the videotape and whether you can say beyond a reasonable doubt that no reasonable juror could have a reasonable doubt i submit you can't do that when the cement blocks go for the counter and you see some envelopes come out mr montero made a very nice argument about how and why there might be an argument that there's a preexisting intent here the problem is there has to be a three finding to that effect and it jury instruction requested by the government an allegation of that theory and the indictment and there wasn't here your honor made a very good point that here we not only have severna time but separated by and over night being gone from the bank even the first two takings alleged takings were separated by a lunch break and a mid morning break in between you know it could be argued that there was a preexisting common intent here it could equally be argued what i just suggested that there was one taking t that worked and later on she decided not try the second time if there was a preexisting someone convicted of a felony crime when you might have four jurors agreeing thinking it might be four to eight a minority even on each step are taking and i'm not sure you could even have it then but i don't think this court needs to reach that re united states versus webster it's admitted