provided the jury with an instruction and i wish to correct the record in my brief i did cite to the instruction that the judge had said he was going to give rather than the strict instruction that was actually given so i  the instruction that was actually given was different in some material way it's actually relevant ways to my argument that in any way he did he did the court did provide an instruction was specifically stated that the jury was to trial so the court perhaps rightly thought that the jury would be confused that it would have to think about what happened at the time of the stop of that that issue was up against or did to some factual issues that perhaps need to blame themselves to consciousness of guilt and so it was the defense is bringing those issues to bear in shipment my mistress towards testifying in this case and talking and talking with closing please the court mark levin on behalf of the united states if i may begin with the second issue and before you begin because i ask you a hypothetical on that second because of what you raise let's assume you have a to pick up the bag and i walk over the door and fortunately for the woman the cameras pick me up and i'm stopped and it's clear that i'm armed i robbed her bag it law that really was what he supreme judicial court was deciding the commonwealth versus jem's because the court was rejecting the majority rule amongst the states that an armed robbery has to  a takes property without making any attempt to hide the fact that they are doing so it comes with it beyond the present threat that force will be used in the event that any jones is it is making clear in taking that most innocent conduct again that that qualifies as an armed robbery because of the readiness of the perpetrator in all situations to use force if it that's why the s j c adopted the rule it did in jumps because again the majority rule focused on the subject of response of the victim read it in the objective act fear because there is no physical touching it's just an assault it's just an attempted or threatened application of physical force with the force and violence yes you're absolutely right the force in terms of  him so force the force itself in all instances doesn't satisfy johnson one but the application of force with no attempt to hide that fact carries with it the the wrath of violen the test for others and so i understand and i'm just saying that i'm just pointing out that the in that small category of cases in which it is not violent for support the use of violent force is minimal you get to the most innocent next conduct which is again we go back to jones that's why b s j c departed from the majority rule and extended armed robbery this court first said that bats in correct because the defendant failed to recognize that the a c c a definition includes the use attempted or threatened use of physical force this coronet said to the extent the defendant contending that the persian valving threatening words or just yours doesn't involve the use of worse but that were the threat of force but the threat of something else massachusetts case law makes clear that it's the threat of force and finally this court said that the defendant has given or has said nothing to show why any warmed robbery case is not cabin to the threatening words and gestures but enormous robbery the level of force doesn't fall within the definition of johnson one and lest there be any possible doubt on the subject and but nobody chain of its decision this court said we have to decide whether or not the defendant was convicted of be force and violence or assault and putting in fear version because as explained below both are proper credit cards i don't think this court could have been any more plain that it was deciding that armed robbery qualifies under the fourth clause across the board and i would know dat but district court decisions that my friend has relied on don't grapple with footnote eighteen of that decision i would point out as well that several other district courts in this district have found that it is indeed controlling in our view again i would think it would be it's a strong departure from the law of the circuit doctrine for a panel to say bad bad statement which is as straightforward as one can be that this court was making it cross the board constitutional a lawful stop or not and go on from there is opposed to saying i have found that it was lawful would you read that the will call it the lesser instruction would have done the job i would just assume but i would also say that i think at that point we're talking about differences of degree rather than of kind in the sense that we're beyond the point of arguing whether or not in the structure of this is per se  there is that question whether given this specific wording of this instruction was never objected to i think there's a serious question whether that was in that argument was preserved but yes justice souter actual force that there be any decision by a jury beyond a reasonable doubt of there being an inherent threat underlying the actual force and so i would argue that it's not part of an actual force and was not