and twelve subsection c one that obstruction statue was the subject of a case that was before the core last year and united states versus pew and in that case judge caliber easy wrote a concurring opinion in which he warned of the overexpansion of the scope in the use of this and other obstruction statutes and he recommended that chords review conditions for under these statutes with searching and can text you will an hour and i think if such a review is employed here there  are two points that come to light that i would like to focus my argument on today the st is that the evidence at trial there was a deuced even when viewed in the light most favorable to the government was insufficient to prove the nexus requirement in the foreseeability requirement required by the supreme court's precedent in united states versus arthur andersen and then secondly that the district courts admission of evidence by the government that was of the government's own creation that is evidence of subsequent initiation of a grand jury investigations used in order to prove the foreseeability of nonexistent grand jury investigations earlier was substantially prejudicial and requires of a conviction in this case i'd like to begin with the  seventeen what the government's theory was was that at that time as a that day a grand jury investigation which did not exist was nonetheless foreseeable to mr gro guns to three gentlemen from albany that those guns made their way back to albany new york and then there about a little after a month later mr brooks received a series of phone calls and he came back or he came to albany retrieve those guns and brought them back to ohio the issue here is whether in retrieving those guns mr brooks was aware that he was the target of an investigation such that he knew or should have known that there was a likelihood of a subsequent grand jury investigation into his actions the government relies on a series of cases issued by this court including the united states versus to united states st in they united states st persico and the difference in all those cases sufficiency of the evidence arguments were rejected on the basis that there was evidence induced that the defendants in those he allegedly committed the crime so he was interviewed by a t f agents i'm a rd of two thousand and seven team but he is alleged to have committed the crime that is gone to albany and retrieved the firearms on twenty not but excuse me at the time he went to all the data retrieve the firearms he had previously signed a form th seventy three right which is the a t f form that he signed under penalty of perjury saying that if you a straw purchaser you may be guilty of a fell right correct and the question is whether it was reasonably foreseeable to him that there'd be a grand jury investigation so at the time he goes to retrieve the guns and bring him back you know two things at a minimum you knows he's committed a felony or likely committed a felony because he read in on the former and he test and he told the police right that he knew he was making a mistake when these guys drove back to all that so right off the bat he knows he's a straw purchaser again viewed in the light most favorable to the verdict and that's when he's there in albany and by this point he's been told that he's got to retrieve them because the police have been sniffing around and he's going to be in trouble right and he knows he's going to be in trouble so he knows he's holding them away so that they can't be found by the police right so he knows he's committed a crime a str purchasing and he knows he's taking the guns away in a way that makes it less likely they will be detected in the course of his being investigated for the crime right what else is left well jones i think that i think that the you're correct obviously that he signed the forms and knew potentially that he had committed a crime and knew that he was going to albany in order to get the guns back i think i have to concede that the light most favorable to to the government i think that the difference is where the investigation was importantly what mr brooks knew or did not know about the status of the investigation so in other words it's one thing to say as the case law in those other cases does that a defendant is aware that he is a target of investigation here he had not been contacted by anyone at that point no subpoena no warrant no phone call so it's different just difference of being a potential target and knowing that you are a potential target or council suspect versus being aware that you are in fact a target a as a proceeding before the war a federal or or a federal grand jury and so what the government is asking you to do is rely on those prior cases and say defendant is aware that he's a target and take that one step further further away from the official proceeding requirement to say that if a defendant as you suggest is aware that they done something wrong and is aware that it could be investigated for court was simply saying that where there is evidence that a defendant is aware he's a target of an investigation that is sufficient to prove foreseeability but i didn't read them as saying that that is a necessary condition so that's one thing and i'd be interested in hearing your view of the case is my nd concern is if we were to accept your rule that a defendant must know that he personally is a target wouldn't that incentiv e let's call it early witness tampering so the idea would be i don't know once you know there's an investigation afoot and that the police have not yet identified you as the target well  go out and kill the witness now you should destroy the witness the evidence now so that they never find you so under your theory if there is a murder investigation and two people have committed the crime only two people know the shooter and his accomplice the shooter then decides while the police are sniffing around they don't know who's done it yet but i know that they're looking i should shoot my accomplice case is a destruction of evidence case but it's functionally the same thing aren't you incentivizing people to destroy things and basically get away with it before the police have identified them even know they know that there is an investigation well just i don't think that there is that that would necessarily be a in incentive else or that it might not be criminal under other statutes i think that the issue here is the connection again of the act to the official proceeding congress could have included in that definition an investigation that could have made it even broader than it was  this statue criminalizes setting aside others that may apply to the scenario that you just laid out with this statue criminalizes interference with the judicial system in the form of judicial proceedings and adequate for the government to prove that the defendant is aware that their target that was the government's theory in this case that was what they set out to prove that is what they relied on i think you're correct that there may be potentially other evidence in other cases that could support a causal connection or a nexus between the defendant's acts and the official proceedings but in this  correct you are correct judge that in a prior question there is not any case law that i have seen from the nd circuit saying that contact is a is a requirement on however in the other cases upon which the government has relied there has been direct contact and i think that the reason that that is an important fact is because it gets at the awareness of the defendant of the likelihood of a grand jury investigation again we're talking about degrees of separation from and extant grand jury investigation that exists which you did not in this case we're talking about a foreseeable i put that ago event what the defendant knows at that time and so i think again the fact that he was not directly contacted and there was no evidence that his name was even brought up prior to the time the crime was committed so again the difference between knowing that you could become a subject knowing that you could become a target of a crime and actually being challenge the sufficiency of the abbott ants based on the evidence presented at trial that reasonable jury could have found the following facts that mr brooks knew that he had repeatedly violated federal law by stop purchasing thirteen guns in ohio that he then traveled five hundred miles from ohio to albany to retrieve those guns because he knew he and the others are under investigation for those straw purchases and that he made the trip to prevent the guns from being discovered in the hands of the actual purchasers  mr brooks could have simply told the others in new york to dispose of the guns but he didn't do that because he knew he had to make it look like the guns never left his possession because he with the hook for the straw purchases while ations a federal law or under marcel didn't have to call bricks at all he could have simply disposed of the guns itself it was clear that marcel knew that mr brooks his conduct was a subject of the investigation and the jury was entitled to ensure that that was made clear to mr grant in the pro that during that interview because he was confronted with the agent's knowledge of what he had died and he made attempts to then come clean with that and he then brought them  here he showed them the guns voluntarily so i think at that point the concealment of the evidence was really over during that interview when he was confronted i'm sorry and following up on  the weapons actually were but i think that they just follow up on that just and i just want to make sure i understand your argument are you arguing that the government's position is that they the actus reus was only on that one charged and proved a continuing offense that lasted beyond april twenty nine i guess or i guess i would i would go to the to the former i think what the indictment is can be read to say and and i thought page seventeen of our  marker here yes judge calibrates he did concur in that decision but he also said that he signed on fully to the decision that the defendant in that case have the necessary corrupt intent and enter the country there's no suggestion in queue that the authorities at that point said look you're under investigation for terrorism they bathe him they they disallowed his entry so he flew back to egypt but while he was in the istanbul airport he attempted to destroy and wipe his u s b drives which contain incriminating evidence of his his effort to to join isis but again nothing in q suggests that the received multiple phone calls and then he had numerous back and forth phone calls with the additional members of the of the crew that came to get the guns in ohio and i think the jury was was w rights to ensure that he was aware clearly aware that he was a target of an investigation and therefore that he had he was reasonably forseeable to him that a grand jury investigation would occur  not sure of my time at this moment but if i have another minute or so you have just a minute thank you just to touch on the  that we don't have to prove mr brooks is intent to obstruct explicitly federal proceeding the government still had to prove that the proceeding was in fact a federal one and by extension the the investigation was a federal one and we did that during the trial with mr with the f o hyatt's testimony talking about his investigation and the joint nature of the investigation with a t f and local officials and the fact that he  be used for what it could not be and again the fact that in a that occurs i think is is relevant if not it's not dispositive but it's relevant to whether that that is forseeable and again i think it would a left  off i think we're going down a dangerous route if we're going to allow our government to prove the foreseeability of one grand jury investigation with proof that subsequent grand jury investigations of its own initiation and own instigation occurred i disagree with counsel that those a subsequent grand jury investigations are relevant to prove the foreseeability as of government argued that the act is raised and used concealment and impairment of the evidence continued outside of the district in the northern district of new york into ohio as part of the actus reus over my objection in the jury was permitted to to hear that argument lastly with respect to united states versus pew in that case if you look at the record from the district court and the decision from the district court it's clear that mr pugh unlike mr brooks my client in this case mr pugh when he was arrested in turkey he knew that they knew that he was a member of isis and that he was going to be  deported and charged upon arrival in the united states mr brooks and no such knowledge at the time that he allegedly committed this crime all in there thank you very much all right thank you thank you mr dishonest well argued w