clock thank your honor i like to start with the issue of attempts on count four we obviously argued at trial that there was no attempt that was committed by our clients if if we  on count three does it matter no your honor on count three regarding the constructive amendment now let's assume it is i understand it may be i've got this from the judge vacated some of the convictions because was insufficient evidence at trial that these individuals committed a substantial step thereby committing attempted robbery so as to that why isn't that a substantial step to come into this area where you expect to find people that you're going to rob right because then and then begin firing when somebody starts firing back isn't this all part of the of an attempt to commit a robbery it is not because when you talk about area we're talking about an area that is miles wide that by the government's evidence was numerous trails numerous canyons it's not a specific area now that obviously the interdiction occurred in a specific area but when they attempted this or they entered this area they had no knowledge and there was no evidence presented whatsoever that they believe they were going to find a specific target but there was evidence that the smugglers went through that right and there was no evidence that there were any evidence that was presented at trial was that this was a target rich area but when we keep saying the word area we're not talking about a hundred by hundred yard they  all of the equipment and that this is what troubled me they had all the equipment they had the guns they had their food supplies and they were hunting they were it went to an area where they thought their prey was going to appear and if that's the next thing that would happen would be if the smugglers went through that area they would wrap them and i don't think that you have to wait for the robbery to actually occur so i guess my question to you is what is it that had  different context that if your clients intended to rob a bank yeah they went to the front door of the bank but didn't go in because that's where the money is inside they didn't go in they went to the front door the bank and they were apprehended there with that be enough for attempted bank robbery yes according to the case and more it would be so here they went to they went to the place where they expected to find the victims and so why is not exactly the same because this area so large and there's no particular target in sight when identified victim the object of a hunting is to kill an elephant obviously to harvest an animal and you can't attempt to harvest an animal until you actually have one in your sight and that's the difference between so it's the the second  cited actually even the government cited that dealt with armed robbery or any type of robbery there was always a particular target would let me let me ask you something quick turn rates to this both counsel both you and counsel for his codefendant or process said it a fact in their openings and to the court were guilty of hobbs act conspiracy we can see that what we did where we were not guilty of is the more serious stuff so given that  count four no your honor because again the conspiracy is not attempt a conspiracy is just an agreement the attempt in count four was never consummated because there was never a so i don't understand your argument i'm just trying to figure out what  said when you look at all the pain cases when you look at buffington still harbor all of them not only had a particular target but they had movement towards that particular target what we've argued here and i understand that the courts are to question me on it but we argued here is simply that without a particular target and without any movement towards that particular target without any real immediacy and real immediacy has been expounded a couple or expanded on a couple cases in har talked about it was ninety minutes away this robber here we had evidence that we had no idea when this robbery might have occurred we had evidence that these individuals had just started on this endeavor we had evidence an argument by the government that this could have been happen to day a week sometime later so here we have none of the things that are in buffington but what are we to make of the gunfight is that is i argued at trial that that was that the gun fight with in response to being fired upon by the agents and the i and that's if you could argue but i guess my question is if you go out and nobody doubts you go out with the intent to rob some people and you run into some people who fire on you is that is that a reasonable inference for the jury to say that all your firing back is part of your part of your continual attempts to commit a robbery you know because i would be the same to say that if in buffington when they were approached by the officers then they began firing at the officers and and that was part of the attempt i believe the attempt and or the temp and or the possible attempts and at the interdiction in buffington and still in harbor all of these cases there was an interjection but the interdiction wasn't the intervening cause for the attempt not to happen and all of those cases how that you know there was a there was nothing in this case the they didn't do everything they could possibly do because they still had to focus on a particular target before they can attempt to rob that target i understand that you know they can arm themselves they can prepare question if they were charged with attempted hunting on a federal reservation and they went out with shotguns on the reservation and they saw no deer why would they have attempted what i think the crime would be actually harvesting or attempting to harvest an animal not necessarily i don't know i'm not you see you don't get to change the hypothetical let's let's assume that let's assume that the crime there's no hunting allowed on this federal reservation right and they go out you know end it with their shotguns and they look for deer and they're charged with attempted hunting on the reservation haven't they done haven't they completed the crime by going out there and looking for the deer but no because again i think the case while there are that's required that we have in front of us requires more than just preparing and then going to an area for example in your son thorne they talked about counter surveillance not being a substantial step in buffington they talked about  they weren't surveilling the area they were searching for there were a which is which is a similar almost exactly the same as reconnoitering which was done in buffington and buffington they wrote but the action they were doing was to try to rob the bank and they were they are willing to shoot it out with the police to further their activity i don't you know i disagree with that statement simply because we have more than ample evidence that the agents believe that they would drop and run and i believe that this particular firefight was induced or was at least somehow provocator on the fact that the the agent started flying first with the bin bags already i was not deadly force but there was no difference in the middle of the night with no no like in a slightly closer hypothetical to robbers decide that they're going to go to beverly hills because that's where the rich people are and they're going to wait on a street corner until a mercedes comes by and they go there and they've got the that we have to have a particular target and then they have to be some action towards that some some actions analytically similar to walking towards the ban so when the mercedes rounds a corner is when they have it in their sights and they shoot at what i'm not  is that unless you actually see the intended victim the robbery hasn't been attempted robbery hasn't yet occurred when you don't have that you don't have to see them to end it big time i think you have to have a particular target in mind or if you have to either identify a truck in the city of san francisco or any armored truck in the city of san francisco and i'm coming up from tucson to do so i get all the quitman that i need whether it's a weapon or a everything that i need to do it a weapon wig mask whatever and i travel to the city of san francisco i have no idea of the route or the location so let me let me just let me add to your hypothetical because i get to do this ok and so you go to an overpass in san francisco where you're pretty sure that well so far go trucks pass beneath and you set yourself up at the top of the overpass waiting for the wells fargo truck you don't know when it's going to come but you have pretty good knowledge of this is the area where wells fargo trucks come by is that an attempt well no because i mean there's no way that's because that's what your clients did but they set themselves up in an area to wait for people to come but they travel to an area and again if i were to travel to san francisco without any knowledge no you protect me and i was saying you leave your hotel room you know you go to the you go to the creek corner where you expect the wells fargo trucks to come by and you're sitting there with your rifle waiting for them to come by my question is is that an attempt if i had actual knowledge that where they were camped out on a specific location they're walking through a canyon that the happen also have an inner diction team from the united states border patrol so it's not the same because here we have someone moving and that was called patrolling by how can how can we have plain error if you say to the district court please give the jury this instruction and the jury gives that it in the judge gives that instruction how can that be played here well your honor i think there's a there's a case president basically said that it's it's in forfeited committee for model rules thinks it's ok how how can it be plain error error that is playing under those circumstances when you look when you look at the instruction and when you look at the law of robbery attempt to be taken by force well not only that wall induce yes but it also requires against his will for robbery and also requires fear of injury which puts which you really are it's not really a constructive amendment case in my view which you really arguing is that that they were going to use another black man know what you can use force as well as or threat of force as part of extortion as well it's also an element of extortion the evidence that was suggested by the by my cross examination of the government's expert was that individuals been confronted by armed individuals would drop and run another they would voluntarily give up their marijuana and that would be a robbery because they wouldn't  but in the end what what the real issue here is that the instruction is an extortion and just like the stand your argument but i don't understand your constructive amendment argument with they were charged with robbery the judge told the jury they had to find robbery or attempted robbery and then in your view the judge gave them an instruction that didn't have the correct elements for robbery but rather have the elements for extortion right and that is the same how does how does how is that a constructive amendment it's just no it's not it's not only is it erroneous but it's also construct the amount tell me what case says that giving the jury the wrong you're giving the jury instruction with the wrong elements of the offense is a constructive amendment there is the united states versus were going to use intimidation along with the fear of actual violence to obtain this property so not only that is it part of the evidence but it's also part of the government's and i proceed to arguments i don't want to i don't want to trivialize i about a fifth amendment grand jury clause violation which is a fundamentally fundamental of right to fair trial it's a substantial right and therefore the the the violation of that right is a substantial prejudice and it also calls into question the good morning may please the court david lesson for the united states i'd like to begin if i may judge acquitted by answering your question asked early in my colleague's argument as to what was left for appellants and their fellow rip crew members to do to carry out their plan and the answer was nothing the only thing missing from their equation was that they had not yet found drug traffickers to rob poor that's not nothing your colleague says that's that's it that's an important something why of the offense it's not an element of the offense because when this court looks to substantial step the court looks to the actions of the defendant and determines whether those actions show that the crime will occur unless interrupted by independent circumstances the fact that the rip crew had not yet found their prey does not change the host of steps that they took to effect to wait their plan which culminated in mesquite c in the dead of night when they were carrying their loaded assault rifles and this is an important fact that did not come up in the opening at the ready position there was testimony goza and keller that when the rip crew members came through the wash they were armed and they were care in the rifles at the ready position they didn't have their assault rifle slung over their shoulders if they were slung over their shoulders would this not be an attempt no so i mean but if i didn't i'm not sure why you are green that it seems to me a friend your theory of the case if they were slung over their shoulders they would still be committed attempt with the not i would agree with that however this is additional evidence supporting the jury's conclusion that these defendants were ready willing and able at that moment that they encountered the board tacked to commit the robbery are there any cases so the theory of opposing counsel is absent and identify them there can't be an attempt you have to at least identify the victim are there any cases  in which the victim was not identified where we've held there was an attempt i'm not sure under this court's case law and part of the reason for that your honor is that the majority of this court's cases that we were able to find occur in the context of a bank right to go to the building and there it is and you have how far along are you on your plan to rob it which it isn't like this the sort of hunting united states versus ten can for example that impossibility is not a defense to attempt and i think that is an important point because whether or not there were in fact drug traffickers in mesquite see on the night of december fourteenth is in and of itself an independent circumstance that does not diminish with these appellants did to carry out their plan is the host of actions that they took beginning in mexico crossing the border illegally walking eleven no later than the point at which these defendants and the fellow rip crew members retrieve their loaded firearms and proceed toward mesquite seed i think it is arguable that when they crossed the border committing an illegal act in furtherance of their plan that that in and of itself could demonstrate the firm commitment to complete the robbery because this court's case law is to the extent i  as have not seen a case talking about an illegal act in furtherance of an attempt that could constitute a substantial step so that's that is an important point but certainly by no later than the point at which they have their loaded assault rifles and are proceeding toward mesquite c and if i may your honor mr flores in his argument positive that well this testimony about a target rich environment refers to a huge area and i respectfully submit the record shows otherwise the testimony of agent weatherby was specifically toward the vicinity of mesquite seep and that is from s t r thirteen sixty nine where he talks about the seizures that he's made over one hundred seizures are these observations you made while personally participating in our treatments used by drug traffickers yes they are was that also true in december of two thousand and ten yes it was a low i take it mr floors argument using the mercedes sort of analogy is it really doesn't matter whether it's a limited area it doesn't it's not an attempted robbery unless you have an identified victim or you us you have an identified victim whether you see that victim or not i actually agree with mr forrest for an entirely different reason it was the government's position that agent whether b s testimony about the documented drug traffickers in mesquite seat was not in and of itself essential to show a substantial step it's certainly provided additional evidence from which the jury reasonably concluded a substantial step existed but it is what these defendants did that is of critical importance and to take the analogy your honor that you drew where an individual intends to rob a wells fargo truck and as in this case there is testimony that well if fargo armored trucks take a particular route away from a bank and the defendant retrieves his loaded assault rifle and sets up at the ready position waiting along that known route that absolutely is a substantial to step in furtherance of the attempt it is squarely consistent with the rationale for a substantial step that this court articulated in hernandez cruz versus holder it clearly allows a reasonable observer to distinguish between someone with criminal intent and those without and the jury in this case rationally concluded that the defendants engaged in a substantial step in furtherance of their admitted plan to commit armed robberies of drug traffickers and to the court as noted there was no dispute as to their intent that was clear from mr flores his opening statement they don't dispute that it was clear from even the cross examination of agent polly regarding defendant sanchez masers written declaration where he specifically says we intended to take drugs from the backpackers at firearm point and that's s t r i believe that's twenty one sixteen that was even on cross examination can i ask you a question about a topic that may not turn out to be very important for the supreme court to decide to my reports but to my yes that's a little bit different but that's why we're holding similar cases because we're waiting for to my government agrees we should we should not adjudicate count nine until till that that issues ma clear we do so agree with that and i would note of course that i don't want to take you off track but i want to i want to make sure we talk to know that when the government does believe it will be appropriate to wait for a resolution to my and robbery cases obviously the instructions given was  accord with united states versus mendez but the supreme court's decision to my it's expected will resolve that issue we have several cases lined up that have priority over this one once the supreme court issues correct relevant to the substantial step in the defense position is you know no it's not and i would respectfully differ with that the fact that these defendants were willing with their assault rifles at the ready position in the evidence at trial was that there was no noise before agent because tanya announced alysia and when he announced the defendants with the rifles at the ready position turned toward the agents with their guns pointed at the it's the government's position that the defendants would be liable for attempted notwithstanding the exchange of gunfire but in response to your honor's question what is the gunfire relevant to as additional evidence proving the existence of a substantial step the answer is yes in the government's view because it is further evidence of the actions that these defendants are willing to take to effect to wait their planned it is the substantial step conduct that demonstrates a firm commitment to the robbery and it first firmly conrado you to how do you deal with buffington buffington is distinguishable for a number of reasons i will go through them quickly the conduct in buffington was entirely different from the conduct here the defendants in buffington parked their car about one hundred fifty feet away from a series of businesses one of the defendants went into a nearby payless shoe store two of the other defendants sat in their car and then stood outside of the car there was an electrical or power outage and they drove away and what this court found critical in buffington first there was insufficient evidence that they defend it's intended to rob a bank they were charged bank robbery there was insufficient evidence that they intended to rob a bank as opposed to another business and the second aspect of the court's opinion with respect to a substantial step the defendant's actions were in this court's words tentative and unfocused they never made a move toward the bank and they never showed their weapons as distinguished from united states versus more where the defendant is walking toward the bank with a ski mask and a gun and what these defendants did in this case is far closer to united states versus more in that not only have they retrieved weapons they are walking with their weapons at the ready position in the area where drug traffickers utilized foot trails to smuggle marijuana to the extent the bank robbery cases are analogous your honor there's not just movement toward the bank in this case which would be sufficient to sustain an attempted addiction there in the bank they are in mesquite they are in the bank looking for the vault to empty and that is the manner in which buffington and still and harper are distinguishable because in none of those cases was there movement toward the bank which you your question does highlight in some respects the difficulty of importing bank robbery cases into this context of hunting victims in the arizona desert and this court's recognition that and united states versus scott that the substantial step analysis is so fact specific that each case of course must be judged on its own facts and there cannot be a litmus test and i understand this court must look to its own precedent and the bank robbery cases to the extent they inform the courts  support the finding of a substantial step here but in addition on these facts to go back to your honor's question there was nothing remaining for these defendants to do when the victims had the victims appeared either before or tac had seen the defendants it was a virtual certainty that an armed robbery was going to occur and to be clear there is nothing there's no extortion here walking into a bank and pointing your gun at a bank teller and saying hand over the money and the bank teller then hands over the money that is a robbery that is not extortion this is not like united states versus carbo where there were threats about hey pay me the money that you owe me from a boxing match from two thousand miles away or your honor's question judge a coup to about i'm going to post a photograph of your mistress unless you pay me money this was to be a taking of marijuana from the backpackers against their will and their the evidence was consistent with robbery and only robbery in this case what would you deal with the instruction we now have a model instruction that deals with object robbery but in those days i guess it was it was more designed like an extortionist instruction so i'm sorry but i'm not sure there's anything wrong with the instruction analyzed you know under under a deferential right but would you deal with the instruction i would your honor and i would say this everyone is in agreement that plane error review applies here because both parties where does it apply if he ever was invited is just playing a re the waiver is in the intentional relinquishment of a known right and there are cases from this court where even though the defendant proposed the instruction that may not be enough to say that the  is for if it fair enough so why wasn't it play there it wasn't plain error because you claimed the error first in the government's view was it was not plain especially under this court's new model instruction eight point one fo three a which is functionally identical to the robbery instruction given by the district court in this case so what could you claim for the what is there or is it your position that the instruction doesn't capture the elements of robbery in this case it was it is our position that an ideal instruction would specifically say against the will against the victim's will the taking the against the victim's will and we forthright finding a jury can make otherwise that is absolutely right and that's why that there could be no prejudice which is the third prong of plain error review we were reviewing before let's assume that objection had been made to the instruction would we reversed absolutely not you would not reverse engineer versus united states because even if this court replying harmless error review it is clear beyond a reasonable doubt that any error would have been harmless that much is clear from neither itself where the supreme court there faced an instruction that did not include the element of materiality and the supreme court noted that the evidence of materiality was undisputed in fact the appellant in that case never challenged or raised the issue of materiality and even in united states versus conti which was a plain error case but this court was actually articulated the standard of neither of strong and convincing evidence this court found that even where the defendant challenge the element that dishonest or deceitful means for purposes of a three seventy one conspiracy to defraud the government the evidence at trial was strong and convincing that the defendants acted with dismissal if i want to admitted that they intended to rob and the  evidence is even stronger here there was no dispute that these defendants were out to commit a robbery to take property from the backpackers at gunpoint and for that reason even if there could be some conceivable error in that the instruction did not specifically say against the drug traffickers will there was no other conclusion to be drawn in this case the conviction would be affirmed under either harmless  review if there had been an objection of course there was not an absolutely survives under plain error review amongst the quarters for the questions for me i i would say thank you please the court andrea matheson for appellant the government itemized five steps that the parents took that constituted in their mind a substantial step five and only five and those were also referenced in the order by judge beurre at the district court why in fact the rule twenty nine c was to be denied and those five elements those five steps under the precedent of this circuit cannot reach that substantial step not only was there a problem with this vastness of this area the most important thing is first of all it relies on a target rich determination which was actually testified to ex post facto and that necessarily is the only situation that the government would be required to show is that this is a target rich area for it to be substantial step congress could not have intended that this massive area be a place in which there's no notice no signs there's numerous fit  five square miles and it's very treacherous terrain so but not only do we have the problem but it isn't the area in which the drug traffickers would necessarily have to wend their way through the canyon or rather limited area no absolutely not please look at excerpts of record for thirty eight d and see some of the different paths that the agents were able to map out but more than the issue with regard to the space i also wanted to mention there has to be some determined amount of time and time is very crucial in this case because the government even conceded that it could have taken days or even a week and that that case was that there had to be some immediacy it was just so much speculation so many intervening in events that could've taken place and then i just want to quickly go to construction constructive suggestion in the wrong direction it gave the elements the essential elements of extortion and that's where you can see the argument of the government you could even see my argument that we all went down this wrong path and because of that very erroneous jury instruction reversal is required there you go just one quick question do you have as i read the briefs are much more discerned that either defendant has arguments that are different than the other defendant your abs are they identical they're