evidence and one of the essential elements namely mr carter was convicted of witness retaliation and it's our position that the government presented insufficient evidence that he intended to retaliate against a witness for his attendance that or testimony and he specifically said roe proceeding and official federal proceeding is a federal element of that  jurisdictional element i don't think it is judge i don't think to to you to you to be clear as far as i can tell there are no decisions directly directly on point with the exception of the denim district court  decision that is cited in our brief the on the supreme court's decision if you know it's pretty causes a difference that you but that's obviously assaulting a federal officer right yes and they made clear inaccuracies that the federal status of the officer is not something that you  it seems to me that the plain sort of language of the way the statute plays out leads to the conclusion that it's not merely jurisdictional the intent retaliate extends through the nd clause to the attendants in testimony at an official federal proceeding there's no suggestion in the statute that the mens rea are somehow cut off after attendance and testimony leaving official proceeding merely as a fact to be but secondly this statute was enacted at the same time proceeding part of the proceeding part has to be known you have to know that the the person is is testifying at  is testifying in a proceeding with a group the question is do you have to know the part about the proceeding being federal why why is that something that the defendant should know why should we read the statute as requiring that the defendant know the proceeding  was it was a federal criminal trial as opposed to a state criminal trial i mean people who retaliate against cooperators generally don't care at all whether whether it's with the  federal offense or our federal officer kind of provision of that statute is expressly excluded from the mens rea requirement in other words congress made it clear clear in a ese any ambiguity i think points to the significant amount of legislative history that clarifies it and clarifies that there are really two reasons for that one the supposition that about something that's that already transpired and is more likely to be known and therefore more provable and another consideration might be the sort of thing that the supreme court talked about in bond which is that you know in some cases congress really might want to just confine the federal criminal criminal jurisdiction to you know make it really clear that we're not we're not aiming to where we're aiming specifically at cases where there is an anti federal scienter basically involved and i think that that based on the language of the statute and the companion statute and the legislative history is what we have here and here we have no there's definitely a sense in here that this person was a snitch or a rat there's really no evidence that mr coelho news difficulty that he was a federal rat of some piece and one within the congress is intent to try to protect all federal proceedings from any type of interference regardless of the person who was federal or not why would that be the basic thing that congress want to do in this type is that you we don't anybody tampering really fearing with federal proceedings why would they narrow it to say we to preserve the sort of traditional line between federal and state criminal jurisdiction the states are perfectly well capable of course of and that in these sorts of stashes to protect their own judicial proceeding this just cabined this off in the fit in the federal case due to federal proceedings and you might have joint proceeding where the person where is actual interference of the person doesn't know whether it's federal or not who's going to protect them well you're just not going to be able to proceeding i understand the question i'm sorry to be about a federal proceeding where the person didn't know that i was there that that would be i assume just a not guilty verdict that a federal proceeding where the person did not government wouldn't have a constitutional basis for a four criminalizing retaliation against a witness in a state perceived to be no federal interest to be enforced when this was put in because federal law has no constitutional basis for recovering retaliation against a witness in a state proceeding that's a reason for the record that's a reason for requiring that's not just a reason it's an essential reason for the inclusion of the requirement to be a federal proceeding not a matter of interstate commerce is not a matter of copyright it's not a matter of taxation what brings it within the competence of congress it has to be a federal there has to be a substantial probability that there was an attempt to take henry the communication of information about a federal offense so in other words you know even if even if no federal funds results or  is prosecuted the possibility that there could have been interviews answer that's one that's what makes it a matter of federal concern and that's what makes it a matter of prop properly legislated by congress and it's something it's that you don't know of any case law that supports you on this i don't i don't think there is any case that's been decided that specifically decide this although this court in the brown case did in passing said and say that there has to be some kind of adequate awareness of the of the federal scope of the of no i didn't mean question he didn't say in any way that there has to be awareness of the federal scope it said that it said that the evidence supported that there was awareness that there was a federal proceeding that's for that is i'm saying in any way that there has to be awareness of the federal nature of the proceed i didn't i didn't intend to imply that the court held that i don't even think that was really whether they held the resendiz neither held nor said that there has to be awareness of the federal nature it said that there was evidence that would support awareness of that there with you perceive that the deficient i'm sorry i was just going to i was just going to clarify one other thing which is that why do you think the construction of the statute that i'm urging is the right construction i would also and i understand that the court has to enter into the law as the court reads it you know here the government not only didn't make the argument that you know now edge of the federal nature of the proceeding wasn't a requirement if you know it half actively conceded that it was in the jury was so instructed so it seems to me that in this case anyway you have a fact finder that was instructed these are the elements of the offense and so on this a sufficiency question the question is was there transmission of that integral piece of knowledge to mr coelho or to hecht and you know i think pretty convincingly everybody knew this guy was was cooperating but not where and certainly not mr cardona you address that for just a moment i mean i realize there's a new conversation at least that i've been able to find in the record maybe the government will tell me i'm wrong where i witness says this was directly communicated to me to mr carro to your client that there is testimony that mr holland testified that people are suspicious because you go to federal court day after day every single day there is your seems to be evidence it's that other that others in the jail were aware that there was a van that think that the court has errors isolated the one instance of testimony in which somebody says mr cohen says yeah i think he was going to federal court every day and that made me suspicious i would point out also that on cross examination he then directly contradicts himself and says he does not he doesn't know where he was going as to the sort of more general question and i don't think it's true i mean really moats most of this is confined over two days may nd and may rd so while it's certainly true that people were aware that he was frequently out of the jail and there's that kind of general testimony what were the federal stuff really comes the lack of a connection between those federal inmates over that sort of twenty four hour period in terms of transmitting the essential information to mr prado who after all is a state prisoner and there's no indication that  he was suspicious previous to this message being what allegedly sent by mr as calera that this is in there in the nature of federal testimony in fact mr ramos says that it's only after the assault actually takes place that mr caudle communicated to him that mr maldonado was a snitch which is the exact reverse sort of of what one would hypothesize having happened had there been a sort of general awareness that the person or you know complete awareness on everybody's part that he was a snitch and then there was this ledge in federal court and notwithstanding his guilty plea to the indictment testified at trial that i didn't know if he was testifying at all at the time i didn't and i certainly didn't know where he was testifying and i understand that later jury was no out to credit the direct testimony mr grant because they were never able to do that certainly a reason when france could be drawn if you if he was told this guy's testifying and knew that he was going back and forth to federal court that the place that he was i realize i'm greatly over my time so i'll step aside here but that is our so why the cross examination of occasion and presentation of extensive evidence that mr hecht state of mind and the curtailing of that is  essential here because it seems to me that is the essential point on which this conviction rises or fa sorry monica richards of the of the united states please the court the testimony here certainly was crystal clear that somebody said to somebody go beat him up because he was testifying in federal court that's just not the world that we were dealing and that's not what this case was about we had folks who were in jail who were being transported back and forth to federal court in federal court only that that's all the testimony was about escalator i was in an adjoining cell with marcial who is on trial in federal court there was only at the end going to federal court the three defendants who were in the van were going to and from federal court yet we don't know if there was also the and with operating together i don't know no i mean well not at the main level but the courtroom level i'm the one floor of our district courthouse and it was at that moment that it's an entirely reasonable inference that escalator had the knowledge that he was testifying in a federal court proceeding there they were in federal court there they were being transported to and from federal court all together so i personally find it find it highly dubious that this statute should be interpreted to require knowledge by the retaliate or was being prosecuted knowledge of the thing retaliating for was testimony in a federal court proceeding as opposed to any court proceeding i don't know why that knowledge should be required and i'm puzzled why the government seems to have just accepted that position i don't know your honor i hate it that i was sitting there and you are talking about things that i wasn't prepared to address and i apologize for that and if it's a post argument that are brief then i'm happy to do that but i think that the point in this case have the asking that the parties in the past argument let it be on a couple of issues ok a little bit later ok even if arguably sufficient your evidence your evidence of his and of this person that the cooperation of the the the writing was in federal court is very very weak oh i disagree i'm sorry but i disagree that's right thought i was going to be able to go on other people  oh i certainly do your honor respectfully mr escalera who was in the van who was on the th floor is one of the co defendants was one of the original co defendants he was on trial with mr condo so he knew because he was in federal court beatty who was a witness i just playing tennis st name i'm sorry but there was he told kotto he passed the message along from mescalero to kotto saying again that they were and this is word federal that's really what always comes down to the only person who use the word federal in the presence of the defendant is cohen which may be enough but i was doing a nice one make sure that the record is clear i guess i don't understand i understand the court's concern with regard to that specific that citation that i referred the court to is not is in general is he people knew he was going back and forth the federal court and the snitch part so that's that's accurate i'm sorry that i that i went in that direction but with regard to evidence that says that this was no cologne overheard ra they all know that he was in court today in court today is court with everyone who was in that van which included ramos is one of the speakers also have ramos to kotto that was per the testimony of cologne and then we have caught a hexed and hecht again was one of the people in cologne frankly who were talking about him being a rat and generally yes that was talking about being a rat generally the talking about in court today your honor everybody was in federal court that day court today and let's go beat this guy up it's a federal proceeding against the king and we do not get that specific so we have a back up your honor respect we'll back up then to page fifty six these witnesses and actors were living in the same housing unit that was testimony from one of the officers that they all lived in the same section of the housing unit with the exception that m in which things proceeded was also corroborated by the housing records and the testimony regarding the different transports that occurred let alone the fact that after the testimony that was more evidence of  relying largely on the argument that i don't we don't have to point to a specific conversation in which we can prove that the defendant was told this is a federal proceeding that's in the transcript we think that the circumstantial evidence of how the different conversations that it's heard in and around this crime and the fact of the van going back and forth every day to federal court and the fact of how the communications flowed from th to the ethical aren't back to the courthouse are sufficient for a jury to was made the inference that this that he knew it was a federal proceeding yes your honor can i ask you in last we said moving on there we may come back to that but moving on for just a moment this three level enhancement that is for in the sense that resulted in substantial interference with the administration of justice could you describe the reason that's an appropriate enhancement here and then and maybe address the question whether such an enhancement would be appropriate in a in this circumstance about think either party brief and that itself is an interference with the administration of justice generally so you could st get what you're relying on to say there is substantial interference and then address my more general question isn't any offense of this sort and it's a substantial interference because it's sending a general message that people that people should be intimidated from cooperating with the government just perhaps just as if somebody made an announcement in prison well that's obstruction of justice generally sure and i don't but with this particular guideline and commentary no one may have the more specific indications of one such thing is appropriate and that's what the district court relied on  there's no i don't think it gets more specific than that that's correct but that this is just inclusive not exclusive and it's not mandatory i'm not sure that i'm going to be able to answer the hours your honour's questions with regard to a more general topic i do know that in this instance based on these facts where we had case the defendant beats up or kills a witness when the particular circumstances of the case it has no effect on the trial in which the witness was because  trial proceeds without that witness or because the beating or killing occurs after the thing was all over and retaliation after the fact or because the person pleads guilty respected him of it so that he has no effect of the sort that's mentioned in the note on the on the progress of that particular trial and nothing changes becomes a peculiarity of this witness retaliates thought it does have the effect of communicating a message to all the population of the prison that this is a dangerous thing if you think about cooperating you know perceiving that federal proceeding you're going to get killed given you the facts well but there's more to it than that there's what type of proceeding justin is in this case we had somebody who couldn't testify for a number of weeks so i'm not prepared to answer your honor's question generally i'm sorry so in this but in fact here this is just this is a lot more than what your honour's hypothetical what the included list are interfering or providing a false statement this is actual physical harm intended to entirely prevent someone from furthering their testimony that on the rd day of his testimony when this happened so that when the statements were made that were clearly made that this was supposed to be a very severe beating that he was supposed to have that was supposed to have profound effect in that immediate matter immunity actual effect well i think this goes both ways i think right this is a case where we could have had worse we could have had less me ask you this in the sentencing the judge said in connection with this that the assistant u s attorney who prosecuted the underlying case testified credi proceeding yes he was in the same person that he was ok yes and the other complicating that is where i was going next let alone that problem but that also in that case the jury was never the jury wasn't there was question to the jury for why he came back with a different appearance and different after that many event the effect here was was in my opinion and i understand the court's concern with the general problems but just i think that would be a harder case for the government to present her sure that would be difficult to show that impact of course in this case again the direct impact was clear so i think the application as outlined the judge didn't do it lightly he provided the explanation of that and the record as stated in the record at nine hundred and thirty dollars to nine hundred and thirty three dollars and found and with regard to those findings there was no clear air there was nothing in there when you're making that finding by a preponderance the evidence here there is nothing in those findings that the judge made that will augment that were incorrect that were factually incorrect so with regard to that matter this court should affirmed the application briefly respond on the last matter first of all i i i have a difficult time conceptualizing how that guideline can be applied in the more general way that that you've been describing for couples reasons st it's my understanding that the specific offense characteristics from chapter two are really sort of represent the compromise of the sentencing commission between a charge based sentencing system and then having these little bump up sir decreases for the manner in which a specific offense it is is actually carried out and i understand that your hypothetical doesn't necessarily mean that you know some cases might not qualify some cases of this nature but it seems to me that if the effect the substantiality can pertain or because ation as well that this court is required to completely other proceedings other than the one in which the retaliation or interference takes place that that sweeps that's going to sweep in a whole lot of cases to the point where you know  don't like in front of me but i think i'm up to correct to say that each of the examples in the note which this court has required the the interference to be at least as severe as substantial as really suggests that it is the proceeding just by the matter in which there phrased that the defendant was being tried for example first to proceed so i think by the tech that it's a guideline applies as i understand the court's point that you know the extent that the commentary so long as it's not adding something to the guideline is it's sort of you know a binding interpretation of it if  resemble you have suggest that it is talking about the proceeding in which the defendant interfered and that would suggest to me that that's the way the guideline is supposed to apply as to the evidence in this case i don't want to diminish what happened remembering some things his answers were shorter and his capacity was substantially impaired i think was the phrase he used and i think that's about the extent of the testimony about how this at the trial that the district court relied on imposing that enhanced why would i would also point out that he was on his nd or rd day of testimony he had already completed his direct testimony and had begun his cross examination so it was a theory here is that he was so often on cross examination which we have no evidence you know out unless you want to work backward and say that the acquittal on some counts is somehow cross examination was scheduled for tomorrow but there had not yet been redirect what he completed his direct testimony and had done at least one day of cross examination i can't remember if it was more than s attorney to tell witnesses on cross examination give short answers don't go down don't go talking beyond what the what the question asked was asked a question and nothing else so it's very difficult to tell what the actual picture looks like here just from what attorneys ask of atlanta just and it's his mental capacities were affected by the beating well he said he seemed to not be able to clearly remember some things that he previously recalled like and one could interpret that as a physical deficit or is being unwilling and and there's no clarification of it really i don't think  exactly what but i but i think then you run into the problem here of this being a two month trial right and when a tree much trial with multiple many many witnesses many many cooperate ers and the question becomes then you get to the ca question i guess what is the connection between that deficit whether it's a matter of well or whether it's a matter of damage and the benefit that when the government buys doesn't it was all give actually to show that it would change it change the nature of that the outcome of the trial or something like that if it interfered with that particular witness's ability to testify that would be substantial interference in of itself regardless of whether or not to commit a lot of other saying you have to show that it somehow affected the government's overall proof now i think i wouldn't go that far but what i do think is that the simple vague statement that he seemed to have some difficulty recalling something that he previously recalled more clearly about basically unable to communicate but he was on able to communicate for several weeks but then he went back and he testified i mean there was definitely an interruption there was a delay in the trial there's no question about that  enough i mean if you if you felt a witness even definitely substantially interfere with that witness's ability to show up in the regular course and present his testimony the next day and that seems a substantial are furious with the having for example of an example i keep thinking of is it a judicial decision founded on perjured testimony i think it is one of the not examples sure i'm not i'm not denying that it had some impact i don't was that no longer no longer impaired the government's presentation with evidence to the jury because before being beaten up and done everything that was to do for the government and  what point of view this guideline is aiming at after all it is an enhancement it's something that that bump that not a pretty anchoring point of the sentence right i mean it is sort of it does seem sort of to be aimed at did this conduct you know somehow either tenke the ability of the government to adequately present its case or lead the court into some kind of error the fact finder into some that should be considered an adverse effect on he was just as i think that's a fair point and i think that that's what i was getting at when i was saying that you know conceivably you could do so poorly on cross examination even that that  you know that that would count but then i think we can loop back to the stream of evidence jury point in this case which is that we have these we we definitely have the delay and but but in terms of the actual description of what went wrong with this witness or what once complained of about this witness after the beating it's very very vague and one would have liked i suppose some example of you know what was he unable to answer it you know was it a material matter was it was it something important or we talking about forgetting a detail or are we talking about forgetting the substance or something important and we simply just have this sort of like his capacity substantially diminished which i don't even know what that really means to the parties i think we could use a little bit more help on the two issues we've spent a good amount of time this morning so if we could get as a say single spaced no more than twelve pages a letter brief two weeks from today addressing st the briefing on whether knowledge of the federal nature of the special proceeding is an a cooperator with the beating of this sort can constitute substantial administration of justice because of its effects outside of this particular case but more generally on the intimidation of witnesses that understandable thank you thank you both and we will take the