thank you judge will consent and may please the court brand boxer on behalf of mr small there are three grounds for relief in this case st there is insufficient evidence that mr small that the robbers who took the keys  because of the identifying individuals staring at them as they left the court room created a presumption of prejudice under rammer that the government failed to rebut on the sufficiency issue your honor although the man who robbed mr rowe had a handgun that night and pointed  rowe there is no evidence that the gun was loaded that was operational that it was used to strike mr rowe that men did any other sorts of act of violence towards mr o and that is true even though mr rove w defied the robbers demand whenever the robbers demanded that he hand over everything mr o said no you're not getting my house keys handed over only his car keys of an actor that act of defiance have to be evidence that the gun was loaded no your honor that there could be other things that only the element of the act it's race that you have the typical robbery case where there's an act of intimidation something you're trying to scare the individual or take property we're not speaking of there was a law here in the classic sense under the statute has the demands of the robbers repeatedly said do you want to die here we don't have a loaded gun we don't have the additional verbal the case i'm example i gave you and you say doesn't make a difference the teller levy has a gun and all but another says  right and we're not arguing that this wasn't everybody around isn't title to believe that to tell the truth right right and it certainly was it was scary and terrifying and we don't dispute that at all i did there pointing the gun at his head and he had resisted realize it's not a question of a fear that he might be you know it's a question of whether the specific untampered perpetrators minute intended but the question is could i jury find that if robinson had resisted  to inflict the most serious kind of harm upon him all the circumstances all the evidence mass comes in and i order your vehicle doesn't take place with car that what they want with their demand was for everything that he had and when the victim said no you're not getting my house clean they were satisfied they well they must have been right there or at least i tried not to shoot him that they rogers did not have any sort of intent to follow through with their threats by brandishing the weapon at that case the with the robbers asked for the victims to empty their pockets and don't make a scene they understand when somebody is just there is a job or all the weapon is just being used as some kind of pretext or you know a system in the state and the difference between that and when somebody ostrich but i think that this is the cell phone search the abandonment question is actually fairly straightforward because of the government's concession below that there is no evidence one way or the other whether the phone was intentionally abandoned or accidentally dropped and that means that the government is not established preponderate evidence that it was intentionally abandoned and therefore it wasn't abandoned so i think that the analysis is is rather straightforward on the issue of abandonment and there in the record confirms that that the the search that night discovered a phone fifty yards from a vehicle with langham next laying alongside a busy footpath where hundreds of people live there is no blood on the phone there is nothing people live that's on the lead national security agency it's one of the the location of that of the location of the crash affects the abandonment analysis that there is no evidence one way or the other that whether they found the phone with the report and heard it has to be has to be perfect all this off to the side of the rubber hot pursuit start you left behind your expectations of privacy or out of the very least the officers could reasonably consider their cell phone controlling law if there are no national but if there are in the circumstances here at night in the national security agency and on a high p this intentional ditching that it was tossed in here as a government c there is no evidence one way or the other of that although it may have been a hot pursuit no one saw the personally or through senses that's what they call circumstantial evidence the a lot of people do a and what the jury found was the carjacked car and then go home barreling through the gates at four me and the national security agency as good police work to say lucky this is a hyper sensitive installation that we are dealing with here we don't know why so far we don't know whether there's one or whether there are accompli es you know there in the middle of this thing trying to figure out what really happened and frankly it's an emergency situation and you know there is no injustice jury listened intently to his testimony about how he had just gotten home and tropfest wife off on a street in baltimore maryland all residential area parked his car and then w by three masked men right and i think clearly i don't want anyone to be challenging that the element of out to the car by threat of retaliation obviously the victim had every reason to feel that he was in fear for his life but you wonder holloway it's a one hundred percent clear these are two different things or has to be a category of cases where you have satisfied the st element by showing that you put the victim in reasonable fear of his life but still not satisfy the nd element the specific in town because that was an empty threat or intimidating so my question is what is it about this case from which a jury could find beyond a reasonable  has to decide is both that the car was taken by force and intimidation the actus reus so to speak and then with the specific content to do death or serious bodily harm and i was thinking about that because with regard to the force an intimation obviously what congress wanted to essential to stealing her car right there and that's not a carjacking because there was no intent to do death or serious bodily harm he used force and intimidation to push up in a way in that two seconds and drive the car away but he did not take a gun with two other colleagues in the middle of the night and literally with from his face put that conflict between his eyes where he is staring down the barrel of it and that's what makes this case himself which seemed like it was persuasive to the court of appeals that he did not intend to do harm or conduct serious bodily harm or kick to kill this witness and i think that they respect fully that the court actually credited that task to moni that is an accident if you are something even better here which is well i don't mean to say suggest anything about this was good but from a defense perspective instead of just the testimony i didn't intend to harm him if he didn't comply we have all these instances where they don't comply and there is no that's what seems very distinctive about this case to me except in holloway of course the moment of that matter is that forbidden intent is supposed to come up when they get the that this isn't the kind of case where any act of defiance is going to lead to the use of force of our cause there were several acts of defiance and none of them led to even like a repeat request for compliance they just sort of let him walk away and was the last thing they asked him please walk us to your happened that night but they told him to come with them to the car and he did but they already had the car keys at that point and that's when the carjacking already occurred when that gun was pointed to i understand i understand but i'm i do understand the point at which the car and they fly off the handle and they commit speakable acts of violence this isn't that happens except that we don't know what would happen if he had given his car keys or if he had jerked his head or if he had something that mr rove had somehow moved in some way that was upsetting to these defendants and that is why it matters how close the gun was where it was pointed and his face with two other people with the math after planning it after watching him get out of the way yes because the elements of the crowd were set forth in the instructions were not objective but this this is the whole reason we have juries to decide whether somebody was just you know going to let it go were it's either an extremely serious offense because you used force to take a car but you didn't have the intent to kill i don't think crank was one of the choices well i think some of the case thought were far too intimidating lawful and i think maybe that's where a judge welcome in getting some of that representing mr small they made exactly these arguments to the court in fact on feel like i'm giving my closing argument right because it is exactly what the jury heard the pros and cons you know what they didn't do anything when he didn't give them a task you know but they pointed a sufficient it was that they said you need circumstantial evidence it's loaded a verbal threat that you're going to kill the person we're pointing the gun by itself even though it's sort of the equivalent of a right it's not enough i mean i just alternative leigh look at the other issues but obviously it's the abandonment issues that's here your honor and i you know one of the issues that kind of got overlooked in all of this when mr boxer was up here arguing for mr small is that whe mr small took off his shirt because obviously he had to take off certain hat when he ditched and when you get rid of a phone the st thing that a commonsense relies upon here is that that phone is the immediate thing that can make the law enforcement find you right because it is that phone that lets them pain it or look for you when you have it now it's not what happened here but when you're in the heat of the moment and we're talking about that abandonment of that phone that vandeman of the car the running from the car the throwing the clothes off the the phone being found fifty yards from all of that we're talking about is the phone to the i really i'm unclear on the geography how close was the phone to the storm and the path it's now so your and i'm sorry about that because usually i do like to include those things but i was thinking here the description was a not so was within about fifty of with with regard to the the area where i have to think about i'm not good about measuring even know your honor but there are people that clearly live there and so there's no way of knowing that the phone it wouldn't you put your coincidence taken to do you got that shirt belonged to somebody in the dorm to all the shots all bloody like that that's a less common thing to think i think a phone is also something common for people to get rid of when they're in the wrong because it helps us find them that wasn't my point my point was people drop phone sometimes they rarely drop like the shots when they're just out why they talk how they are but not bloody shirt harris that unique circumstances of this case are that when they found the phone and clues yes it could possibly be the defendant's possibly not take it back plug it in maybe to make that in working see if it's old and within twenty minutes it's raining they don't do it search per se of the phone and this goes more to the exclusionary rule issues that church wilkinson is saying they are not immediately opening the phone and going th whether or not and they can do a very limited mission to try to do on the owner of the lost home but did you argue that i mean it does yes that's different from abandonment and it's different from exigent circumstance yes i know that and that's why i put the picture of the phone to show answering of the phone or the calling the pushing of just thirdly i want to fight it allows you to make perhaps at least some words of how as you can do this very limited area inquiry just going to fire your own i don't think you know allows you to do continued searches once you know who the owner and they and they didn't do continued searches your honor this was all about now at this point striking a high you're trying to find this individual now that they have identified him and only speaking to the person that's called that was yeah i don't think that those cases don't allow you to do things like once you  five you look at the serial number answer few more phone calls i think they're pretty limited to it's reasonable to try to figure out who owns the phone but then you have to stop and then we have to go to what is i mean the officer did get a war yeah you know but only after there phone right where you have to consider you mean in terms of their good to know in terms of whether or not the search was permissible you always look at what the officers knew at the time like stuff they find that the officers found after they searched and i think th clear without even considering what happened at the trial about but i didn't at the trial about what the officers knew at the time would come in i think but not i mean there's i can't think of any for them if the police come in and search my house without a warrant they're not allowed to say good somehow matters of love but but this there's something to be said at least for credit the people who made the because of that based on the facts again to go back to the government's concession that there is no way one way or the other to teach to you into the intent to abandon verses accidentally last and that resolved that tie and has to be resolved in favor of mr small there was a was not and the victim had every reason to be fearful for his life and the court said that's the wrong focus of the analysis the question is no that part of it i mean there are two parts of why his intimidation there is there is testimony that the con was loaded we don't have that here but also in those cases there wasn't the repeated defiance by the victim which we have here despite the commands that the robbers gave to the victim