proceed with our st case good morning may have pleased the court and i'm assuming that  appeal he also mr meek in the trial court challenge the sufficiency of the evidence regarding the counts fourteen and fifteen those were counts relating to tampering with the witness or obstruction of official proceedings he received sentences of two hundred and forty months for those two counts  sentence for that major component seven sentence whereas three hundred and sixty months sentence for  violence now my understanding that the government has conceded that your underlying offense is not a crime of violence you know that sentence should be set aside well it would be both i think that the conviction would have to be vacated because the underlying of the fence is not a crime of violence  formed sensing package in that then sensing package should be revisited by the sentencing judge and we send that back and i didn't see any place where you disagreed with that is that your understanding ye absence of mistake modus operandi all those sorts of issues and what evidence in particular came in on counts twelve and three that would not have come in otherwise because it strikes me that most of what was coming in fitted fits into either a common scheme or plan or a method of operation and minimum shows an absence of mistake or intent related to essentially mr kahn can correct me if i'm wrong but mister taking is stealing a motor vehicle and attempting to run another vehicle off the remote in time and the separation of time is a factor that we need to consider too that the only commonality is that the victim is the same that the actual crimes that were committed are  were sort of meshed together in a sort of he's a bad man and i'm sure he did it because of that taint from all of the other counts and it is that really a fair summary of your argument it is your honor and why you were talking i thought it one more thing is that in connection with both sets you know that the charges that relate to n i think we all turned to now are is the other major component of the six hundred month sentence was capturing and in order to be guilty of those offenses there would have to be either an official proceeding pending which i think everyone agrees that no or mr mintz conduct would have to be connected with a specific official federal proceeding that was recently forseeable  to not from or from reading the government's brief both in the statement of the case and then in the section relating to this offense i didn't or in from reading the tra under way there was a supreme court case arthur andersen where the supreme court decided that arthur andersen was an accounting firm without it being linked to well i want to hide evidence what i won't be prosecuted in federal court i think that's what's absent so he may have been concerned that there was with special agent jason past nine zero of alcohol tobacco and firearms the there are a number of issues raised by mr manc i think some of them can be handled quickly i want the court to feel free to ask me anything i have a slight advantage over mr meyer given that he didn't try the case and he wasn't involved until after the jury if we if we look at the tampering and destruction of evidence charges and the indictment counts fourteen dollars fifteen cents and we look at it with the view that mr meyer has given it it would essentially  eviscerate those crimes if we can't show the defendant knew that there was likely to be a in other words that it's completely unfair seeable to him that a crime or a criminal investigation was underway here the defendant was actually prosecuted in federal court in two thousand thirteen and was sentenced about a month before this bomb was found at the quad city n he was told that the a t f had been to his father's house and was asking questions about the bomb mr menke asked his father to destroy d specific evidence in connection with that bomb mr ma clearly knew that the federal government was investigating him and he knew how the federal investigations worked he had been an informant for the f b i and he had been prosecuted in federal court had been indicted in federal court he knew full well that there was going to be a federal investigation and that one had already commenced and that the way those go is you present matters to the grand jury you have a trial and he clearly has a motive to destroy evidence that would subvert that official those official proceedings so we feel strongly that the evidence was sufficient to submit to the jury on the issue of foreseeability and would ask the court to deny relief to mr mink on this basis the defendant also  focused in his brief on this means of identification issue and i want to talk about that for a minute he focuses on the debit card as being the means of identification but i'd ask the court to look at the indictment the indictment admitted that mr sheets was a real person and we know that he used mr sheets actual date of birth and social security number and he set up an account so that he could purchase items that would conceal his possession of a firearm as a found the statute and and the indictment talk about committing identity theft in this situation in connection with their o lawful activity in connection with is fairly broad language and clearly mr mink took this man's means of identification in connection with his possession of a firearm and he was a convicted felon there's no there's no question about him being a convicted felon knowing he was a convicted felon and he admitted at trial that he knew he was prohibited from having a fire very complicated case i think in a way mr manc is shooting himself in the foot when he says there wasn't enough evidence to give that convict him even in light of all the evidence that he was guilty and in this case all of the evidence overlaps and relates especially forensic evidence i want to remind the court that on the day after the bomb was discovered mr manc was traveling to my island michigan to check in to federal prison and from the hotel room in milan he sent an e mail tip to the city of davenport admitting that he had set the bomb at the quad city and or left the bomb there and he connected it to that only family cemetery in his email if we were not allowed to bring in that there was a holy family cemetery bomb which we would have been able to prove mr we may have difficulty proving that mr meek was associated with it but by his own words he was associated with it and of course all the forensic evidence that connected the firearm that was buried the bomb at the quad city and the bomb at the holy family cemetery i remind the court that the bomb at the holy family cemetery was discovered just a short distance away from where the victim resided it's quite clear that mr mink from the beginning in october of two thousand and thirteen sensually started his  efforts to harass injure and the alleged victim or the victim laura leslie and he did it repeatedly over time we feel very strongly that all of this evidence would have been admitted in a joint in a severed trial simply because it showed motive and identification and lack of absence of mistake  intent almost every reason for a joint trial as well as the fact that there was commonality in his efforts that he repeatedly the defense counsel there was there's just simply no reason to strike the entire for an error based on an off handed comment by a juror and of course all the jurors indicated they could be fair with mr manc i want to talk of for a minute about this dangerous weapon idea and that mister make is claiming that to commit an offense that involves a deadly or dangerous weapon as a crime of violence for instance in this case the allegations that he committed is aggravated battery  and that he crossed a state line using a deadly weapon or a dangerous weapon that you can't have both you can have the death the data deadly weapon do double double duty or punish him  twice that those are arguments made by mr meyer st of all the defendant wasn't charged with aggravated battery ever involving the truck he clearly was driving the truck when he rammed it into the vehicle  s leslie was a passenger the fact that the truck could be a dangerous or deadly weapon the jury wasn't instructed that he in fact used a deadly or dangerous weapon the jury was given the identity of the weapon that is an apparent thetic will when it went to court when the when the court instructed the jury on deadly weapon it focused on the truck that was the only item that could be considered a deadly or dangerous weapon i've asked the court to consider a sort of a different hypothetical if found in possession of a firearm was a crime of violence and  er mr minnick committed felon in possession of a firearm when he got a gun in iowa and when it crossed the state lines to injure harm heard a victim and used the same firearm there'd be no double duty there for the firearm and there wouldn't be no double punishment for the firearm the federal crime so that you may not use a dangerous weapon when you cross lines to harm injure harass annoy the victim and commit a crime of violence in so doing should we don't cross strongly that there's absolutely no no no harm or no impediment to charging mr mink with the enhancement for carrying or had or using a dangerous weapon i ask the court to look at case that says that you may not use the same item for both a higher sentence and an enhancement and the supreme court sided that of hand because that's what the california statute says cunningham versus california is a blakely booker case that requires that the jury not the judge makes a decision about sentenc hansen's there's no question that the jury here was given an instruction that required that they determine whether a dangerous weapon was used and they checked the box sang that they unanimously agreed used in this particular company it is not an element but instead it is a sensing and has meant it's a factor because it does increase like the sens needed to be submitted to the jury which is exactly what the judge did  ten where dangerous weapon is actually an element and it doesn't say anything about dangerous weapon the definition is the same i mean it doesn't really matter but it you know it could is that as used in this in these instructions a dangerous weapon he has blah blah blah blah blah but instead it had element directors and it doesn't then relate back to the enhanced meant year by it's plain language i think read you can read it is all and say well a dangerous weapons dangerous weapon but mr myers argument is quite subtle here he is arguing that when you have the parent that goal it tends to be a direct door in this context rather then just an example or right for example the automobile could be a dangerous weapon that's question for you as the jury but the way that it's constructed and when you read it in conjunction with the dangerous weapon definition it might it might be something different i know you don't agree with that tell me why you don't well let's let's start with the jury being advised of what the charges are and their toll what mr monk is indicted for and in the indictment specifically lays out each offense including all of the elements and count two it includes that the offense was committed with a dangerous weapon three does have so so that's my st point the jury was provided the indictment the language of the indictment they know what he's charged with  all in the preliminary instructions the jury is told these are the things that you look at i think that probably for me the thing that mr meyers helped me with and in the many many years i've been a prosecutor is understanding really that the jury all juries are trying to do exactly what the judge told them to do and they're following the judge's instructions to the best of their ability but if they have questions they present them to the core and say we're confused about this we don't understand this and there's really no reason to believe the jury was somehow confused or didn't understand that mr make was being charged with this domestic violence charge and the stocking charge eat in counts two dollars and three dollars and that in each of those he's alleged to have used a vehicle and motor vehicle as a dangerous weapon there's no other weapon identified during the trial so when you put all those things together i think you don't get to a point where the jury just was too confused didn't understand didn't follow the law and in this case i think it's quite clear that they did follow the law and they did not have confusion about about the  the elements or the use of a dangerous weapon i'm not sure if there's anything else i can help the court with i do think when you consider all of these instructions as a whole d when you consider the nature of the evidence here and its overlapping nature when you consider the instructions and the lack of any jury issues with respect to this the fact that almost all of this was not raised at trial and had it been we clearly would have been able think in the end we got a fair verdict based on the law on the evidence and we're asking the court to affirm if there's no other questions i'll yield the rest of my time thank you very much allegation without mentioning mr sheets and mr sheets they were information didn't come up whatsoever in connection with that actual purchase i think the debit card doesn't have a name on it  mr sheets means of it then if occasion wasn't what was just incidental to the purchase of that gun barrel if that's what it was i think it was issued it may be just incidental but it also may be evidence of an intent to evade being identified as the person prohibited from possessing firearms or constituent parts thereof and that isn't that a jury question what are you following what i'm saying you know he uses the identity of a real live human being the debit card can be traced back to that individual eventually in the event that there is an investigation he uses that in theory to avoid any tracing of the purchase of a component part of a  firearm back to him but it traces back then to mr sheets i mean that's the idea argument the allegation is and i may have this incorrect but my understanding is that