in this case apple and morton was convicted by a jury of aiding and abetting on credit union robbery and aiding and abetting the brandishing of a firearm in relationship to demonstrate that mr mr jordan in fact participated in the in the form the robbery or in aiding and abetting in rendition of the firearm in this case the government those robberies however the evidence at trial showed that on the video no one could actually say that mr jordan participated in the robbery they have against us not show th witnesses on the stand and shortly testified that they could not even tell whether those participants in the attempted robbery that they were male or female as a matter fact there was some testimony by someone in the bank that one of the attempted robbers actually carried a forty five some automatic weapon in his hip but no one could actually identify that it was mr jordan carrying the weapon or who was carrying the weapon at all as a matter of fact the officers also testified at trial that they did d n a analysis on five pieces of evidence some clothing that was supposed to have been dumped in a backpack post a robbery no d n a test alice has demonstrated that mr jordan was a participant in him during the robbery the entire time but then she comes back and says she could not hear him in the bank she actually said that she could not testify that he made any statements from the bank she changed her testimony  anderson's testimony when she cheated justified also the she did not know who walked into the bank to commit the robbery and there she never heard him on the phone right now the jury had all of that and so why isn't that just  jury issue whether she can believed about what she did say in light of what she didn't know when mr george's argument is that under under jackson here the government had to prove it beyond a reasonable doubt and that in order to get this conviction it was done by powell and inference upon inference and we we believe that in this case the jury got it wrong because when you compare the testimony that she really didn't know who went in the bank she really didn't know who she was talking to on the phone and then she actually made it that none of what she had testified to on direct regarding these matters could be verified on cross that her direct the jordan asked him to rob the bank on cross examination he testified that he really didn't know who was in the tundra truck on the day of the robbery because the government's theory of the case is that  it was mr jordan who actually jumped into the tenet tendre to commit the robbery but there was nobody who could say that jordan was in the robbery jordan was actually in that two hundred dollars which leads me to the nd issue that the nothing really linking mr jordan to the crimes that evidence is prejudicial because by entering that into the trial it allows the jury to infer that because mr wise was robbery being mr jordan must have been involved in the robbery as well so aiding and abetting does he have to actually be in the robbery itself or the fact that he's hiring the people and doing the drive is in all of that is that sufficient well there's no evidence in this in the record here that he actually hired anyone to miss loring or god said want to make some easy money or something where there's no evidence of that asked does she want to make some money but there's no evidence in the record that mr jordan hired her to participate fully in the matter and do you want to make some money come meet here at this place is net are in somebody i don't think they have a woman gauge many agreement or something if if it were true that mr jordan extradition want to make some money then that would mean that she voluntarily went with someone to in this trial wise was convicted his sentence for aiding and abetting aggravated credit union robbery absent any evidence of an affirmative act in furtherance or dance knowledge of the aggravating circumstances instead the government substituted a suppose it sibling relationship between short in n y s that was eroni asli admitted over defense counsel's objection for an affirmative act or full scope of knowledge the prejudice of this is admission was shown because the trial court prosecutor referenced it four times in closing argument every time he got to jonathan go weis he referenced the fact that he was walter freeman  brother so there are three issues the insufficient evidence on the whole and then also as it's required the advance knowledge of the aggravating elements under rosemont analysis in this court's  carvings and the erroneous admission of the hearsay about the supposed the alleged sibling relationship because these had a cascading effect across the entire trial particularly with respect to the firearm enhanced when under the sentencing guidelines and then the lack of a mitigating role were duction in sentencing now rosen says that for aiding and abetting you have to have affirmative knowledge you have to share the intent for the full scope and you have to take an affirmative act there is no affirmative act in this case in fact the only thing there are reasonable are inferences which are unreasonable this court has held that you can't pile on reasonable you can't pil inferences upon inferences of the os so that you can't use reasonable inference as the sustain the conviction but that's what is happened in this case because when that got in the government's response to our brief they point to two things saying the suggest inferences whined that weiss went along to instruct the entre santy into that he went to use the phone because santy was driving neither of these is reasonable because the record demonstrates darryl anderson testified that after he received instructions from jordan outside of wise's presence he told santi what they were going to do he also testified that the citations are in the record the heat was on the phone was santy for the whole ride he also told him who to follow and they were near the bank and that car of followed a constable and lastly sands he knew walter jordan according the evidence just not as well y of the offense in particular in this case there's no evidence of an act in furtherance but also under the supreme court's decision in rosemont jonathan nikko weiss would have had to have it vance knowledge of the use of a firearm or of the soul which are the aggravated circumstances of this because what they're charged with is aggravated credit union robbery it's a bank or credit union or savings and loan robbery plus an aggravating opinion to a seth of government money case now what's interesting about that is the difference between those two dollars often says it is much more stark in the credit union than it is in that case because they said that in that aggravated identity theft case a one thousand and twenty eight dollars a violation that the defendant had to not only know that you had to have intent to commit the underlying theft of tax money but how do you know they were going to use other people's identities to do it it's hard as the government argued in that case it's hard to see how you can know you're stealing other people's tax money and not know you're using their identities at the same time that's not in the government excuse me this  it's a crime and then if you hurt somebody or use a gun it's a higher office the sentencing commission which is brand part of the judiciary does to him to be one dollar or three dollars because you get extra points for using the gun and then last doesn't it say that it was a natural of course it basically what the government's arguing it does it it's as if we're talking about the same case i believe that it's applying a mississippi bank robbery statute but again that is if you're looking at this it's not supported by this court's published jurisprudence it's not supported by the text of the statute itself the sentencing commission or f data if it was a natural forseeable consequence there'd be no point it be superfluous to have the aggravating portion of the bank robbery statute or the sentencing enhance sentencing portion your honor yes that is were switched back and forth what because the way the government responded they wanted to shift this court to reasonably foreseeable to justify the natural problem consequence theory or something being reasonably foreseeable doesn't necessarily rise to the level of being a natural consequence what i'm suggesting is that it's not reasonably foreseeable under the data that's available from the f b i same department of justice argue this case it's not necessarily but it certainly doesn't rise to a natural  probable which would be the only way they could get around to rosemont sufficiency analysis under carbons you save time for rebuttal counsel thank you thank you gagliardi for the united states his honor may please the court mr wise is guilty of a greater bank robbery because the evidence heat evidence is sufficient in this case and as courts of where the center of us highly favorable to the prosecution in this case because all the evidence and all reasonable inferences against the defendant are to be drawn in favor of the prosecution in this case while this is a circumstantial case and it is closer than mr jordan's case the reasonable inferences in the circumstantial evidence in this case establish the guilt beyond a reasonable belt of mr was and that is what the rational jury in this case found the question is whether any rational jury can find this and that's given a very favorable starer view in this court towards the verdict now in this case the observed mr jordan driving the red sox wagon armor and roach wagon out to the cinco ranch area of katy about thirty miles away from the rd ward area of houston the day before the robbery and their belief was that mr jordan was surveilling a bank or credit union out there in preparation for robbery well as we know from miss anderson a miss miss mr anderson a missed loring's testimony that robbery was set up for july th and did in fact take place afterward after mr jordan recruited that comes into play as regards to mr wise because he is observed driving that jetta that next morning and then the phone that is also associated with mr jordan is found on that nissan road when it's pulled over after the robbery and mr anderson testimony establishes that that phone was not in that east on road before mr anderson chaired his place in the room with mr wise for his place in the boats wagon jetta before these four vehicles the votes wagon that's associated with mr jordan from the recognizance from the day before and also in the nissan road mr anderson's testimony established that there were two phones in that road before mr which is associated mr jordan through the same circumstantial evidence but the six thousand six hundred and one phone is associated it belongs and is registered to anna rogers who is the girlfriend of mr jordan the hour leading up to the robbery at the credit union in which miss lawrence has lauren testifies that she hears voices particularly mr jordan in the course of this robbery she's instructed to go into the bank by mr jordan to see if there is security in the bank and mr wise is in the vehicle now mr wise presented this theory to the jury at trial that he's merely present he has no knowledge and the jurors to say that he got into that road because as mr anderson testified mr santee didn't know what was going on and they used the circumstantial evidence in that case and a reasonable airframes to the car where he was it's the circumstantial evidence and that inference from the circumstantial evidence but still there's going to have been said he was in the phone on in the car where the phone was on and the phone was involved in the ca dr testimony mr anderson stating what that vehicle was doing was following the march units it was doing counter surveillance runs we have testimony of that vehicles parked right across from the bank when this all was going on and the theory of the case presented trial was that mr was was really president had no idea what was going on couldn't have known the jurors rejected that there they didn't find it reasonable that in find it rational now that vehicle also pursues the tundra out up north on ninety nine dollars as it flees from this credit union robbery mr wise is still in that vehicle at that point in time a come out in front of the credit union and it had been plundered a customer mr nolan who was attempting to enter that bank now there is no direct testimony or evidence that mr wise observed that but it was certainly out in front of the bank and it was directly across from where that robot ringback was parked observing the bank and looking out for law enforcement so again circumstantial evidence that  less mr wise was you know paying absolutely zero attention from the pastor see that vehicle which the jury rejected that he would be aware of what was going on at the bank in front of that bank and the actions that were going on that day as to the roseman instruction i'm happy to answer questions about that particularly the carbons opinion i think is far too much read into that case as far as i don't think of the plain narrow view standard that that is a clear and obvious error given the status of the case law both at the time and presently in fact mr weiss certain is brief the baker opinion which was later reforms and is superseded to not address this issue and specifically in roseman note seven says that the natural and probable consequences theory that we had vance in our brief is not being addressed by that court so that the application of the law that time is unclear it remains unclear and i just wanted to point out to the court that on the day of the robbery it's alleged that mr jordan was driving a black tundra miss loring in her testimony she she testified that she never heard his voice coming from a tundra she testified that she didn't really know who walked into the bank to commit the robbery and that she never heard jordan on the phone at all asked to mr anderson m anderson also testified that on the day of the library july th he never saw mr jordan enter into any blacktown tundra and that the windows were tinted and no one could actually see inside the tundra or who was in the tundra and neither of those cell phone numbers were found in his possession the sixty six all one was found in mr pace's possession and as the government indicated the in their argument the government repeatedly references what mr weiss may or may not have known but they failed to address the other prong that's required in aiding and abetting which is an actual formative act in furtherance the defendant has to seek not only share the criminal intent the house to take some active part to carry it out and the record in this case is completely devoid of any evidence by an affirmative act by john is simply no evidence of that and the evidence that is presented is incorrect weiss did not trade cars with daryl anderson there was evidence in the record on camera that earlier in the day before the vehicles went on the caravan to katy texas that he had been in the v w at least an hour before that's in their records on camera it's not in dispute he did not trade vehicles and he did not  switch he was a passenger in the nissan broke and this is on camera both from the officers sitting in the parking lot in the bank camera the rope was parked they sing cinco ranch boulevard with a hedge between it and the boulevard trees in the median between it and the credit union and in the credit union the gentleman who approached the bank that was confronted with a gone the surveillance cameras in the record office trial exhibits show that the robber the masked robber in the bay pointed the gun he was not in front of the bank that did not occur in front of the bank it occurred in what we would call for your narthex if it was a church between the bank lobby and the sidewalk there's a stub a set of doors an area where you have  another set of doors that gentleman mr nolan was approaching the bank robber was inside the st set of doors and he showed the gone in to that gentleman and he turned around walked away and called the police there's no evidence in the record in fact to the contrary through the indisputable video evidence admitted that that is an obstructed view from where these people work even then there's no evidence of an affirmative act if i was his getting in the car with mr santee could not be affirmative act not according to your instructions no you're on not according this court case law mere knowing being a merely a knowing spectator to a crime does not rise to the level of aiding about his getting in the car with for the circumstantial evidence point of him helping in order to be helpful to mr sanity there is no evidence of what he would have done or what he did to be helpful it's curious because around when he gets instructions from jordan nine hundred and sixty five to seventy and that he was on the phone with santi the whole ride he never says wise is on the phone so it's unclear what wises role would have been ok i think your thank