about the jurisdictional element of the offense and it seems to me and i could be wrong that the government's position in this case is essentially that any commercial enterprise automatically satisfies the jurisdictional requirement exactly what the holding was in the russell well that was for rental property that there are certain there are certain and as an effect i like to turn well i didn't interrupt you go ahead your honor that was  two thousand and fifteen this court went into this whole business and there are certain activities that are per se affecting commerce rental property is one of them and in may in this court extended it to restaurants ok then there are on the other hand situations where as a matter of law the commerce clause is not the jurisdictional element is not met like in private enterprise private house completely i think that was the jones right precisely as i said put this wasn't a no this is a private house used for business it was and i'm just what i'm what i'm proposing to your honor is that that's not enough that there that between the two extremes of well not offhand but however i do say that the principle that each case must be decided on its own facts holders but as but the question is what's the standard and then and the question taking their honda and hitachi where is that they use for their business and moving them outside the house before birth and if they're using foreign equipment for their business why isn't that like the gum in the seven eleven store because what that would mean is that as long as you have a commercial enterprise you've passed the test and me and specifically refuses to agree to go that far which case united states versus may and it's cited in my review and relied on by the government as well they specifically decline that and then they go into an extended analysis showing that in that case it was a diversity office  so did the supreme court in jones indicate although it's in dicta that where a home is the quote the locus of any commercial undertaking that they would look at it differently well no what they said is that that well you're right it's dicta and what does that imply that if a home is in fact a locus of a commercial undertaking that you would look at it as potentially connected to interstate but that doesn't mean that every murderer you know facts commerce i mean it's a question of i suppose there are two streams that you could follow one is the that judge wallace followed in papadopoulos saying we don't want to federalize typically state law crimes because that affects the balance of power and that certainly got traction in lopez and morris and in those cases on the other hand there's a tendency to want to read the the  commerce clause broadly as it like in wickard versus feel that anything by that reading anything that is commercial is necessarily affecting commerce with exactly this the instruction given instruction number twenty that the supreme court has reached out and said tell manner of law why is an apartment house interstate commerce if it's used but a plumbing and handyman operation not use the commerce well because in the one case the connection is obvious was right in the case of rental because basically your honor because the supreme court said so in russia ok but that doesn't how far can you take that out under eight forty four i arson and i why does this not go in that same general realm because our president is different and more precise that the that the inquiry is always as the court said in odom which i  i think that's an eleventh circuit case i'm not sure that what you do once you decide that it's a commercial enterprise then there's a three part inquiry what is the function of the building is the function of the building involved in commerce and three does the commerce in which the building is involved sufficiently affect interstate commerce and i say the only evidence that the government presented you know that for a sort of worker type analysis in this case came after the case had after they've been found guilty by the jury conviction on counts one through three that's a page seventeen of my will be in the argument counts one through three i do challenge the conviction by stating that the fraud counts have to be vacated because of the attorney testimony if the  and three have to be vacated because of the attorney testimony that count one also has to be that was arson to commit the fraud but i would like to to stick with the issue that just left with my co counsel here specifically this court brought up in minutes in minutes could not be more different there was twenty years of activity at the house in mina's where employees came and got their paychecks from the entire business a big business was operated out of the house actually and attached part of the house in this case the cancer he was a plumber he was engaged as a plumber if an attorney works for a firm and comes home at night maybe brings their lap that isn't what happened he had a business in his house what she expired how else are they a go and then he had an application in for another one so there was really no gap if he had twenty different business licenses for twenty different businesses but never acted on it there's no active employment there's no act of employment from that house from that building in commerce in any way he simply a plumber whose tools he took to his tools were supplied by year's employer and he was a deputy employee that was expired about an hour before this all happened and that he applied for a new one another with expiry of maple thirtieth an and hand new application in from a first i mean it isn't like he had given it up i think you have to have some active employment in commerce just having a license and doing nothing more and that was just indication that he had of business it wasn't that he wasn't doing anything else it takes a resident thinks an average home where one goes out during the day and work somewhere and has also applied for a business license at some point that will have nothing to do with the home the business license means a business where you'll go to other homes you won't build from there you want have employees there you will do the work from other homes yes you apply for a business license and that's the sum total but contrary to that is the actual evidence that he never did that this is are you saying that he did not in fact run a business out of his home is that your position i am saying that yes that is my position even though he had tools that were supplied there even though he had a truck that was kept business did he do other than the business that was run from his house he did no business run from his house he did no business of any kind at all you're saying oh there's no evidence in the trial that he did does not you saying that a plumber doesn't do any business it plumber who employed by a plumbing company are you saying that all of the work that he did was as an employee for another person and he had no independent business where he took customers of his own that's correct and there's no absolutely no evidence of that in the drug court none is my strong position here now to me it's no different than someone wanting or having the desire to do something different but in modern day that's everyone many people have a job one area and think i'm going to become someday a computer programmer or something or whatever they're going to do or build websites or something and so they then get it business license not meaning they're going to operate out of the home but a business license now there's no evidence i know the government had some small evidence that in a banking account that he had deposited money well there were a number of deposits where there's no evidence those weren't the pay checks from his employer but it was an account for alex's some made into the accountant in may of two thousand and ten just before and after the fire where he had his employer come testify that he worked for him and worked for him only well yes but this was a an account from the business it wasn't  a personal account i understand what the court just said that that's not incorrect but i can go open a business account right now somewhere for electrical job to catch them but sure but it's is it is this it's possible he was put against private pay checks and there but the indication i mean you account for the business for some reason i was putting money on it was he a subcontractor or was he an employee is an employee pursuant to the testimony of mr  starts with a c i don't have it from me think it's conrad mr conrad was the employee who was with them in the sense of the day of the fire was the employer who was with him the day the fire and he says he was a w two employee and he supplied the tools very importantly i texted him or called him and told him where to shop where the job site was because mr conrad was the owner of the company and then mr secant showed up i just think it transforms every home into the subject of an eight forty plane he was having difficulty getting a plumber's license so he was doing general contracting work an employee doesn't need a plumbing license an employee doesn't do general contracting work that's that's correct your honor she has no time frame she was a next door neighbor for a long period of time and she talked about things during the recession and so forth but she didn't talk about the time frame of twenty ten that he was employed we put his employer on and said from twenty five to thirty hours a week when he left me he picked up the kids they had seven kids or whatever it is and miss may said my understanding in conversations with them was that there's no time frame get so the defense put on specific time frame to prove he was an employee good morning runners my name is neuron and i represent the united states in this matter this court should affirm the just the defendant's convictions in the district court's decisions below because the evidence presented to the jury was sufficient for a rational jury a business either the handyman or a plumber or general contractor or any business at all he wasn't involved in any commercial transaction love it was house he was simply coming home with his employer provided tools and going out from this home using those tools and truck for his employer do you agree with that analysis i do not your honor well during the trial two witnesses that worked with m secant testified for the defense there was scott komarr who did testify that he and he provided work to use a can see from time to time i disagree with counsel's representation that on the day of the fire that scott komarr testified that on the day of the fire that  was just an employee of somebody else that yes but that wasn't the expo extent of mr spitzer can't he's business i've worked on that but the first example would not support your position that he was beyond simply performing some tasks for scott komarr as the court has pointed out the defendant had business licenses that ran from the time prior to the fire to after the fire the defendant was not up on this what you don't a customer of hers for at for alex's hand and you have you have any evidence that alexander alex's handyman business actually did the business aside from the licenses that showed that this was an act of business are the evidence of the bank records that the united states put into trial were two accounts one account was for alice's plumbing and the other was for alex's handyman the alice's handyman business checking account it's a business checking account in the name of alexander's a can't see doing business as alexander's handyman has deposits and withdrawals going in and out of the account including on just before the fire and just after the fire where these deposits simply f his employer as was represented a moment ago by mr eichler where they deposits by customers that he was doing work for as alex is handing him the deposits the deposit detail was not in evidence and was not present the irrational jury can draw is that that money is going into a business checking account for this individual's business which is independently put in an account call himself a literal golden mare and deposit as payroll  house advertises itself but where's the evidence that he actually and to them is to just bruise on top of the question i actually did any billing as an independent contractor or the proving that he actually did any business it seems like he should have brought somebody in and said you know i are just mad as my handyman i paid him a check he didn't do that well you're out of the united states presented evidence that irrational jury could infer support a conclusion this besides we're not interested too much at this point and you conclusion we would like you to do is to point to some evidence of some actual fact which shows that this was an independent contractor and not an employee of the contractor could you do that please yes you are so scott scott komarr testified that he had on occasion here he provided worked alexander secant ski but the record taking out business licenses and the essence wanting to have a business i mean trying to get business and we don't know that he ever gotten this is that sufficient for purposes of this trashing he was he was he was you know aspiring to do business as alex has had him and that you've proven whether it doesn't matter whether he actually ever did business as alex's handyman you're out of that could be sufficient there are cases such as clarke out of the  seventh circuit where you have a commercial property that is not actively in rental circulation or being leased that's being prepared to be leased and that has been held to be actively avoided and conceptual question on occasion that mr sick on secure work for him is and we can examine that carefully word for word but did he testified that it was a now and then type of relationship or he testify that he was his employee and he worked for me all the time my understanding of the testimony was that mr komarr testify that it was that it that it was on occasion that employees state that it was as an employee or was he it's important to take a step back to where the rule from from russell and jones with those rules with the with supreme court was pointing to and russell and jones in russell the supreme court stated that congress at least intended to protect all business property as well as additional property that might not fit the description but perhaps not every home but to cover all business property and jones held that a home that's not used for any commercial purpose  business concern again it seems to me perfectly well proven that he was playing himself out to conduct business but the only evidence that i can tell from which one one could infer that he actually from the home to all these outbuildings and vehicles and he did put he put them on the list for the insurance he was representing them as belonging to himself yes your honor at the time sixty four to sixty sixty to that they didn't belong to his employer they belonged to director are the thousands and thousands of dollars of tools listed in the insurance claim that was made under is homeowner's insurance policy that would not be the employer's tools and what about the truck what what what connects that chain own personal business europe your honor in the in the business is business licensed excuse me licensing records that have listed that chevy silverado fifteen hundred truck as the vehicle to be used in connection with the business he listed as being his business vehicle for alex's handyman's not for scott komarr not for some other employer but for his business so taking the evidence together the tools the business licensing records the bank records the truck how he described his home based business in the licensing record and was there some testimony that he by people who knew him that he actually you may be right that it doesn't matter whether he actually did business as long as he put himself out as a business person going to the government position is that if even if you were preparing to do business he would be engaging in a commercial concern similar to the case property was being used for a commercial purpose for the reasons that we discussed with regard to the evidence that the united states position is that taking the evidence together the inference the jury could have reached and did reach was communication from mr chung's office to opposing counsel in the insurance matter and mr truong was not asked any questions that would divulge an attorney client communication or a confidential  thank you i will note that although we don't have any evidence of where the checks came from the two deposits in may of twenty ten and the month of the fire were on may tenth and may twenty fourth which is fourteen days apart which appears to be a two week cycle wasn't an ongoing business there were tools that he claimed as his own a substantial number of them didn't attribute to his employer right for which she submitted a mean person into the insurance company a private business he said he didn't give said he did not have his own business i thought he said that he he did know he mr heath testifies in redirect that he didn't have his own business well look ok there were the ads there were the licenses there was the fact that he were new to licenses every year which would be an odd thing to do if you were not to have to pay bother to do that if you weren't running a business another is it would be one thing to do it once or twice but he he did it right at this point then for purposes of planning we'll take a very short recess after that