good morning kevin joel page for mr stallings your honour's at the time mr stalin's put his bags down and left them unintended in a wells fargo branching there was no good reason to think that they contained a bomb he didn't say or suggest that they contained a bomb he said they was nothing written on them of significance they made no noise and they were visually indistinguishable and in all other ways indistinguishable from any other piece of luggage o in the bags for vodka it was sort of a hodgepodge of dubious value the most significant thing that was in the bags was mr stallings id or or a bunch of information personal personally identifying information me but mostly it was clothes and and toiletries and so than some other i know there were nothing unsavory dangerous or threatening to anybody no there and in fact that's how the prosecution opened the case was just looking at the testimony this is i believe the examination of the dark bus driver she said he had some kind of disagreement with a white female scholar she was giving our time he was pissed off with her and that he was teaching her a lesson he was going to teach her a lesson yes but i agree that well and the date the inference they are the reasonable inference to draw there is that that he wished for them to believe that there was something harmful in the back right so if he believed there was a reasonable belief that this would be dangerous  counting on it why why can we were versed on the grounds that there was no reasonable belief well because that primarily because his subjective belief that there was that there it's reasonable to think that there is a bomb in the bag unreasonably that's right that's right and i think that's and congress intended that that part of the of the statute that says under circumstances where in where it may be reasonably believed as a check on liability both for scituate for for defendants who intend to make a hoax or a bar or a bomb threat but don't do so in a way that people reasonably believe or for liability for situations in which  other people react to it in a way with that in other words this that the congress intended for this court to exercise its independent judgment as to the reasonableness of that belief of yours if i understand correctly bore bears this out was to try to get a trespass morning for mr stallings because they didn't want him to come back to the bank that he had behaved offensively there in the past and in fact in that call government exhibit five which is only three minutes i committed to the court that they asked the police essentially they begin by asking the police essentially for the for the the right to treat it as abandoned and to put it outside and only when the they were unable to obtain a trespass warning  tain a police officer become an issue of trust press warning if they begin saying i'm comfortable putting the bag outside myself and so the police the call to the police does not substantiate the reasonable belie well i don't know that the police were afraid the police were acting with a a prudent resolve to be safe than sorry rather safe than sorry it took an hour and a half for them to get the bomb squad there for whatever probative value that has but i don't know that necessarily that the police are saying that they believe this is a bomb or as likely to be a bomb they're just they're doing what the police do which is to to err on the side of keeping everybody  safe so so i want to i want to point out that how different this case is from from every other case that seems to be in the reporter about this case that applies the statute which is in that there is nothing in the federal report or no case in the federal court or involves information that is remotely this ambiguous every other case that i can find that's in a federal report or involves a defendant who is being clearer about what kind of threat they're quite they're trying to make and i suggest submit to you part of the reason for that is that that is the usual means by which people make threats and so it is likely what congress is targeting but it's also the definitive language in the statute that the information must indicate that a violation has taken is taking or will take place and so for that reason this is a very different client that the ambiguity in the defendant's actions together with the very unusual nature of an actual credible terrorist attack violation of the terrorist act you ought to give this court very serious pause and i do want to urge the court to of individual people the beliefs of individual people we are watering down the check that congress has intended which is not merely to make sure the libel is not too expansive but probably too to protect st amendment it values in the case and yet you know that maybe it may be reasonable to exercise caution a situation it's not reasonable to believe group to that there is an actual terrorist attack occurring i wanted i do want to make sure that i cover  my issue with the argument but to make chief issue with the the government's argument in this case want one more question to you to mention your concern about reading liability too broadly under the statute and i certainly understand and sympathize with the notion that we don't want this to it's not going to go after people who genuinely do not intend to critique our i disagree with that or at least i disagree with that under the reading of the statute that appears that has prevailed for instance in the th circuit which is that the statute requires a reasonable misunderstanding about what the defendant intends so that that raises a serious person him an issue and also just an issue about the scope of statute or whatever you read the statute as i think you suggest that the information not just the the the jury instructions in this case if they say that and they you know there is a there is a fair reading that they say that but they don't say that very clearly so under jones where you have a jury instruction which doesn't necessarily briefly over objection the prosecution was allowed to argue that the corporal who defuse the bomb in the situation put on his bomb suit had done so for twenty years to protect the community and to contrast that with an image of the snickering defendant walking away from the crime and to do that as part of an extended argument about victim blaming i submit to the court that every relevant consideration about this argument suggests th must reverse on its ground it is it to the extent it is distinguishable from other cases in this court's precedent it is is distinguishable only in that there is a greater call for reversal here there are at least nine considerations that suggest that this you have that reversal is the appropriate remedy for this st of all it was highly emotionally charged it's a discussion of the bravery of a law enforcement of a very brave law enforcement officer trying to protect the community to it is just like it is materially indistinguishable from the arguments in macand in argue are which were both found to be improper augie lower under plain error if you look at it in the briefing at the nature of those arguments it is very difficult to find the meaningful distinction number three is preserved it was not preserved in argue are and still resulted in a plain error reversal number four it was over ruled the argument was overruled and therefore there was no contemporary cautionary instruction about what to make of this of the statement the only thing the jury could have of the most likely message the jury received from the court is that it was ok to consider this and precisely the way the prosecution asked them to consider it number five it was a close case this was this was not a case where there was there was overwhelming evidence that it was reasonable to believe that there was a bomb threat or even that's what the defendant intended based on the mere act of laying the packages number six and gunk or of this court has recognized that an argument made near the time of deliberation that is in rebuttal closing has more may have more power with the jury than other than other arguments number seven it pertained to a non witness to an on testifying witness so there is had no logical  for the entire bolstering case all the probably addition on emotional appeals to the to that to the sensibility of law enforcement appears in the bolstering case law it's in  oh understand how both through the testimony about what was found in the bay her well it was the i mean the reason that it hurts is that it asked the court it asked the jury invites the jury to disregard reasonable doubts about the defendant's guilt and render any in a verdict based on its emotional feelings about the propriety of attacking law enforcement or the propriety of questioning the behavior of to briefly discuss that the sentencing error i submit to the court to see and correct the district court's reliance on their arrest records this court need only take the trial judge at its word  names thirty four offenses that are substantiated only by a bare arrest record the for the probation also notes that eleven of them were violent and that one of the  emphasize that that as the government noted the court proceeded step by step down the chart incrementally rejecting each intermediate range that demonstrates that the substantial right question is cases not merely whether or not the the diff the district court was inclined to depart or vary up or did it it likely was but whether it would have imposed the same sentence and this demonstrates that it was open to sentences between the top of the guideline placed the court good morning amy burch for the united states and i'm appearing with co counsel emily falcone or though mr stallings raises several issues on appeal none warrants a reversal of the jury's verdict or the court sentence i'll be discussing the sufficiency of the evidence and jury instruction arguments and the miss falkner will take the closing arguments issue and the sentencing issues first i'd like to address the the argument that this court should apply the novo review to the nd element the often switches the reasonably under circumstances where such information can be reasonably believe cites supreme court case and publish the circuit case but neither of those cases deal with an element of the often one talks about the reasonable suspicion standard for law enforcement for probable cause and another one talks about whether storen a is a general or specific intent crime and so to the extent that that there is this argument that this court should independently evaluate what a reasonable person would do say or believe separated from the jury verdict that's just not correct the jury verdict or the jury's view of the of the evidence on each one of the elements it's entitled to deference sufficiency challenge to that and so he goes on just then to challenge the nd and rd elements which is whether that information was conveyed under circumstances where it may be reasonably believed which is what the statute requires and where the information indicates that an activity has taken is taking or will take place that would constitute a violation of certain statutes and here the government charged the statute related to explosives so the circumstances as the record bears out is that you know this defendant had an ongoing dispute with the bank he had been not just angry but over the top in his behavior pre previously with the bank he had on three prior occasions had to be asked to leave the bank two of those occasions he had thrown things at the tellers made made a mess on the floor through a soda cup where the soda went everywhere through pamphlets and things that were on the ground and then on the last time he had been escorted out of the bank he turned around and unzipped his trousers and was making lewd gestures at the at the bank staff for that reason he was banned from coming back to the bank there was testimony that he had never brought bags into the bank before they had not seen this man with bags and any sort of notion that ok this is just a transit homeless guy who's carrying all of his life's belongings and his bags wasn't even born out by what was in the bag which was not all of his clothing that we see in the pictures and the testimony from the multiple times he went to other banks so there were there was testimony about him making that the banks now didn't seem to act as if this was a serious aware of the bag there was set some testimony that they were they were not allowed or not some supposed to close the branch without without the higher level approval and that was the security people that wanted them to just move the bags and the people that were inside the bank were the ones saying and i don't feel comfortable doing that i don't think that's safe and there was even some dispute between the two tellers you know there was one person that was maybe a little more willing to move the bag on the other one that was going and that's not safe let's not do that and so at that point they they did call the police but the idea that nobody was that concerned i mean they were well no that's not i mean that's what he said but what what the testimony was is that they were concerned about the bags every one of them testified that they can see that they were concerned about the bags what m look at the nine hundred and eleven call and decide that the testimony that they gave from the stand is a true compared to the nine hundred and eleven call and given the standard of review here which is deference to their verdict this court has to to task to take what they s their word from the witness stand which is they were afraid of the bags and they thought there were explosives in the bag understood but it is just so i understand the record again and that's when the decision to deploy the bomb squad is made i i would like to to let the court know that it is important to remember that when mr  bus and said i left a bomb on the bus i mean i'm sorry he said i left a bomb in the bank balance for the bomb squad had a ride but after it had been deployed and so any sort of idea that oh he saw a bomb squad and then decided to kind of make up the story on the bus it's not borne out by the evidence or the testimony and then when mr stalling  when mr stallings gets on that bus he tells them exactly why he wanted the bank people to believe that there was a bomb and that's because he wanted to teach somebody a lesson but going back to the going back to the the part of the discussion about do the bags convey a bomb threat they did not say bomb he not tell the tellers i have a bomb that came later to the bus to the best person to miss lunk and he was driving that are us what he said what he did as he came in and there was some testimony about the video about how he sort of placed the bags and turned his body a certain way he asked to speak to the manager to make sure they know he's there and then he asked for some extra time and when they turn around he's gone and so just why the presence of bags abandoned in a in an airport or a bus station or whatever i mean the bags them so were the message of that communicated the presence of a bomb and that's not a reasonable that's commonly understood and it's not just what these tellers subjectively believed although their subjective belief is i think relevant to the evaluation of what could be reasonably believed but the jury heard this or that and some believed it judge fitzwater heard this evidence and felt that it was sufficient he didn't deny the  defendant's motions for acquittal and so it's not just what did one or two tellers believe or what did the police on the scene believe although all of those people are presumably reasonable people it's what the twelve people in the box believe photos but he wasn't a witness at trial and so the government did rehabilitate him one point i would make about the a bomb is that even in closing argument defense counsel was the st one to say that he put s you know i did looking into high level all that but the question is really he did it to the extent any of these things were improper did it make it any more unlikely that the jury convicted  proper especially when they are just referring to arguments  i'm uncomfortable having missed the st suggestion that she is uncomfortable moving them or and there's no suggestion no mention of anything dangerous in the bags and in the call on page four hundred and fifty eight the witness does indicate that her motive for making the call to the police was to obtain a trespass warning and that's on page four hundred and fifty eight to answer directly the question joe asked about whether or not they they let customers stand next to the bag on page four hundred and fifty six of the record it indicates that they did permit customers to stand right next to the back and that bit while some of all but one of the employees went behind the bulletproof glass it was the evidence is clear it was business as usual for customers new customers came in some of them stood directly next to the bag ms birch made the point that the defendant bag did not contain all of his worldly possessions but where's the significant point is what a reasonable would have an observer would have thought just upon seeing the bags laid there and at that point mr stallings had certainly presented as homeless for at least  prior occasions to the two visits to the bank he couldn't all of his debit card requests have been returned because he didn't have a stable address he couldn't get an id this is not the kind of person that it is reasonable to think could create a weapon of sections are exceedingly rare people walk out of d m v as in banks and airports angry and in shouting matches all the time and we don't assume a terrorist act as a card merely because they leave a bag and the only other point i want to make as to the abuse of discretion issue