a small store and i believe perivale missouri by agreeing to serve as a getaway driver with importantly at banff knowledge that his confederate would use a weapon in that robbery now the first efficiency count concerns the section one twenty four sixty counts of this crime and that requires generally using a weapon which put a heightened burden on the government to demonstrate evidence demonstrate through evidence that mr daniel as an aider and abettor had advance knowledge that his confederates would use a weapon the robber walking across a field saw the robber enter a car that was driven by mr daniel and in a later stop of that car in search of that car deep in a console the police found a black nine millimeter and the record will show to find that it required taking drinks out of a drink holder opening sort of  of the car that held the drink holders and finding this nine millimeter stored deep within that was there sufficient time for that to happen that's arguable it was so quickly that these particular robbers were this particular robber it was happening and it took a matter of something like i believe four minutes it was a matter of minutes after the robbery and that will go to my second point as well later but in order for that to happen concealing that weapon so quickly to happen the two gentlemen would need to remove these styrofoam drinks so they were drinks they could have spilled if you were moving them they weren't they weren't cans or anything like that they were the s eleven style reform cups with lives that they would have need to pull a soda i believe that they would have needed to take out lift the piece of the car out so the weapon into the actual dashboard and then which was a wallet one of the things was a wallet into the back seat so he would have needed to very elaborately hide the weapon just would be incriminating how you used it in the way in that robbery and then sort of casually dispose of other items that would also be that way are there any fingerprints anybody test fingerprints or could you test fingerprints on the  the united states attorney may have to correct me on this i don't believe that happened i don't believe that i know there was no fingerprints presented but i don't know from the record if that was actually done by law enforcement so to  to meet its burden the government attempted to kind of construct this chain of inference which would be because there was a black gun in the car that they incidentally were able to link to mr daniel through his uncle think so much of the gun to his uncle who then transferred to mr daniel's father and the car notably actually belonged to mr vance girlfriend so  ok i'll agree to drive you away from the scene it was that here's a gun you can please use this in the robbery or at least some sort of not so i mean that brings us to the peculiar his arm around her the gun was on her back and then later as he was leaving the scene that she did see the gun and numerous well there was a nine one one call and  just a minute or so into that nine one one call she describes the gun as a silver handgun she says she saw it she doesn't equivocate on that at all and then later when the police arrive she also gives them information  and described just a silver gun was she ever confronted with the appearance of the gun that was found in the car the record doesn't reflect that you can tell a little bit from the record from her attempted to you know question that was her a little bit not aggressively but you know what part of the gun did you see i saw the barrel at one point she says she saw the tip of the gun and  indicate that the gun that was found could not have been the gun at the robbery other than the discrepancy between the caller's yes  the evidence that was put on by the eyewitness was that it was a silver gun she never at any point says well it might have been black or anything like that now the government very conveniently included in his how was it presented to the jury in closing argument regarding the gun identification the government argued essentially that the video the jury was able to view the video and essentially argue that the robbery victim was mistaken that she likely you know a black millimeter is usually sort of matt she she never indicated that she didn't show any sort of doubt at any time but i can tell from the record i know it's a little hard to tell from the record for the court but she didn't appear to contradict herself was there any evidence or testimony about the possibility of another gun no there is some evidence that they did search for silver gun after she told them it was silver the evidence the records they looked i believe for about fifteen minutes in the field that the robber crossed in order to reach a road where the vehicle was so they believe from the record that this show that they  searched i don't know my colleague might be able to correct me on this but i don't believe the record shows that they searched through any trash cans she didn't see him do they do that the natural inference would be to dispose of the gun at some point as he was walking that this case would have some similarity for you and i couldn't find a case like this unfortunately but where a video that you know the court can see with its eyes would contradict what a witness said he or she saw but we don't have that i mean do we the i don't i find found it difficult to to determine even where the gun was correct i thought the video if there was a dispute about whether the robbery occurred if there was a dispute about his positioning if there was a dispute about  things like that it would be probative on that issue certainly on the issue of what whether you know i mean you can tell by his arm that he has a weapon i believe i think you could have reasonably infer from that but as far as what the gun looks like i think it's it's almost as if it doesn't it has such low probative value and that leaves so i suppose that's my point as far as the idea that if the court had conclusive video evidence and contradictory testimonial evidence could certainly affirm here we have video that essentially shows nothing has no probative value at all and i don't know how to characterize that otherwise i think it's you cannot be anything else and then we only other evidence to being something that completely is clear and unequivocal and so what is a jury left with that isn't just pure speculation facts about this case that would set it apart from some of the court's other precedent goes back to the farmer and that is that the timing you know this particular robbery happened when the store w dobbs happened while a store was open and you know what store was forced to either their actual commercial activities were interrupted here also the money was gone for a very short amount of time as well as an assistant united states attorney in cape gerardo missouri and i were to speak in the trial of the case that's currently before the court and if i may i'll start off with the same issue that counsel has as far as the color of the gun and whether there was sufficient evidence to convict mr mckeen daniel of course the color of the gun was only one issue before there are one fact that was before the jury there were several other facts that came into play the jury heard and resolve those all those issues that res adversely to mr daniel but dealing with the color of the gun one of the questions that came in was how was that presented in closing argument how was it developed the color of the gun was an issue that was developed all through the trial mr welby who is trial counsel argued that and presented evidence to the effect that called talked all the officers questioned them about the color of the gun where they search for a silver gun do they find us over gun how long do they look and went through that in quite a bit of detail in his closing argument mr will be probably spent eight to ten minutes the first part of his argument arguing that the gun that was used by mr gibson in this robbery was a silver gun and yet the the evidence was in front of the jury for for them to resolve and i did play the tape of the robbery as you've noted it's very short but to play the tape of what was actually what they could actually see now the object in that or clerks back was certainly not silver it's difficult to tell what is it from the film as grainy as most of those small can mean stores are they don't have really high quality surveillance equipment but it's clear to see that the object that was in his hand was black and no the other thing is the witness clearly testified miss course testified that she only saw the tip into the gun the barrel into the gun it was a high point pistol and i showed it to the jury at the end where i put my hand around the barrel where only the tip was showing and displayed it and it was a hard finish a hard flat finish that would reflect light and it's possible that she simply saw a reflection of white and thought it was graeme or silver but she also described his dark and her testimony right after she said that she saw the tip in the gun she said it was dark and so it again that was just a fact that was in front of a jury the year the government's theory was that it was the gun that was found in the console of the car that it that way so if if there wasn't sufficient evidence to show that that was the gun that mr gibson yes it did used in the robbery then then that count would fall correct it would but the weighing of that evidence is for the jury that we don't really weigh the evidence in in this particular transaction or this this appeal and was there any evidence and i asked your posing counsel about any evidence or testimony or possibility theory presented to the jury about another gun no there wasn't there that there was only this one piece of evidence we played the nine one one call where the miss course reported that she had been robbed it was a victim of an armed robbery that the robber had a silver gun and that was all played for the jury all of this was played out in front of the jury for them to to hear we did not display the gun to miss course did not ask mr robey did neither quite honestly i thought that might be somewhat prejudicial to because i think she might be expected to recognize the tip in of that gun and i didn't want to do that i thought that might be stretching what would be permissible because she told us an interview she was not a expert didn't know whether with a revolver or a pistol and didn't know anything about it and so we thought that would be stretching the bounds of what we ought to try to put on and i think mr will be thought the same thing but what about the theory of in of near impossibility of the timing that you get back in a car you you toss the proceeds in the back and you remove two big drinks that are full of presumably i don't know if there is testimony are they full of during all of liquid and yes and somebody's got to hold them while the other guys driving and you lift up the console and somehow you did yes it was four to five minutes between the robbery the time the car was stopped and yet that cup holder lifted directly out the officers testified how they pulled it out it would have been very easy for the driver mr daniel to pull the cup out and mr gibson to do the remainder and put the gun in the whole the whole p s calls out with anything that is yes there's lifts completely out in one unit standard design and it is not a some kind of modified i thought it had been modified but i actually contacted a chevrolet dealer who told me that's the way it was made and so i was surprised to find out that's actually the the way the couple came from the factory so it wasn't a special design that's just the way it was that's what i understand there were no no fingerprint evidence presented whether effort was there any effort to do fingerprints on the on the gun that was found in there was not and mainly because of the fingerprint evidence we found is very difficult to obtain from farms as well as d n a evidence sometimes it happens but the chemicals that are on guns for cleaning and taking care of them basically destroy a lot of times the d n a and there are enough flat surfaces to to really to get a usable fingerprint with we've had very poor results it happens on occasion but we did not do that in this case in any event the jury did hear all of that evidence from both sides mr will be actually did a very good job of exploring that silver gun black dichotomy he did as much as anyone possibly could but twelve jurors unanimously found that it was that that was this gu used by mr gibson and furnished by mr daniel but so that that issue as it as it turns out to be a credibility issue or a wing of the facts should be resolved by th court be left in the hands of the jury i ask you about the hobbs act yes robbery i but the case law seems pretty clear that the fact that it's a mom and pop convenience store is not doesn't necessarily take it out of the scope of the act but what about this case here where you actually have testimony that there was no effect i mean does this push does this type of case push the act into the realm of simply if if a store does anything in connection with interstate commerce and then is is rob that that's sufficient is that is that sort of where we've gotten to with that statute bill if i may stealing the goods on the shelves that go through interstate commerce or stealing the money and so the issue is always well is it the proceeds that are can can be shown to affect interstate commerce and the case i had before this court a commercial enterprise of any sort that would not fall within the scope of the statute if you rob a business i agree that it's very difficult to conceive we were actually arguing about that in the in preparing for this case what if the person stole a piece of bubble gum i don't think it's the article that was stolen that's how that business affects commerce and i guess that that sort of is the back door of that question we have says i can't to cut up the lumber that certainly wasn't well i don't know certainly likely wasn't all manufactured and kind of just pushing it to the edge here because i'm just struggling to find to think of an example where where the where the how exactly right i understand is just that in the parameters of this case it seems clear that a mom and pop store clearly falls within the parameters of the act and that meant this robbery was clearly a hobbs act permissible permissible charge to make under hobbs act case where where that's going to be a legitimate issue we were not going to get so close to the edge that you folks can push us off i would hope that we wouldn't and i would hope that we would exercise that discretion not to do so but in this case with all that got him that were that were manufactured and sold and transported interstate commerce the gas the cigarettes the liquor almost every item in that store came from a location outside the state of missouri and so i would argue that the question is how did this wro in the last robbery in farmer it was an attempted robbery and he was caught before anything was taken caught actually in the store and so to that extent there was no effect at all because no money was taken nothing was taken but yet that was permissible  was a chain case where we would do but they looked at each individual store they looked at whether suppliers came from and resolved it on the basis that their image or it came from other states and and that's been true in every one of these object cases that come before this panel in this court is that they are the proof is in the nature of where the goods come from that the store sells that that's how they're proven that's how it's been accepted in numerous cases before and we would argue should continue to be so even though that does this just really pointed out sort of expand the burden or expand the parameters of what is a permissible hobbs act robbery if i could address one further issue here and that's the  jury instruction the committed are committing complete argument that was made the argument that counsel for mr daniel made was that that there ought to be some limit on what the jury should consider that basically the instruction was improper because we should have used the word committing rather than complete in the aiding and abetting instruction and inferring that you shouldn't really the jury shouldn't be allowed to is to look at facts beyond the scope of the robbery itself once robbery is complete well then that's that's it but rosemont actually settles that and footnote number nine and in that case it talks about what the jury can consider so as of course if a defendant continues to participate in a crime after a gun was displayed or used by a confederate the jury can print permissibly infer from his failure to object or withdraw that he had no such that he had such knowledge in any criminal case after all the facts are in your can draw inferences about a defendant's intent based on all the facts and circumstances of a crimes commission and so rosemont tells us that all those facts are to be considered what the color of the gun you know how it was found where it was found what opportunity the part the people had to dispose of it all those things come into evidence in determining did mr daniel know before the robbery that mr gibson was going to use the farm and it uses it in past tense and that the jury can consider those things after the gun displayed or used again reaffirming the jury instruction used by the model instruction used by the eighth circuit that the jury can make those inferences based on all the facts after the robbery is complete i just wanted to address that one additional topic of a man if there excuse me if there are no further questions i'll tender back the remainder of my time thank you trial court  was retained by the government pending the prosecution is that legally significant because that three hundred sixty nine dollars is then taken out of interstate commerce i didn't glean that from the record your honor but i would defer to what the record says my impression was that it was not clear from the record what when the money was returned and so i see i'm actually running out of time that i wasn't quite sure either i thought that's what it was and so