this case at trial in spirit in its totality and in the light most amenable to the jury's verdict limited the jury to reasonably conclude that mr guerrero was prepared to inflict serious physical harm or death if empty empty threat and the district court yes those those things were were said to the driver quite understandabl felt threatened by what was happening but the court said looking at the other circumstances that will tell you the circumstances concluded that this was empty threat and that it did not which you described did not contribute to a rational funny that the defendant was prepared to resort to whatever force was necessary perhaps causing serious bodily injury or death in order to take control over this over the vehicle so what was the discord right to view this as the classic empty threat it on right really that the nub of the the issue here is could the jury reasonably conclude that mr grove meant what he said were they compelled to conclude that he was faking it in other words is it irrational to conclude that he meant what he said when he said i'm going to harm you don't leave this car and all of the collectively the evidence in this case permitted the jury to reasonably conclude to be to rationally conclude ringback that mr guerrero meant what he said he wasn't faking it and there are several factors of several circumstances in this case that point toward that conclusion st you have mr g conduct at the time of making the threats he was standing directly in front of miss in front of her blocking her exit from the car she could not get out of the car he was right in front of her right up in front of the car she could not get out and at the same time emotions to his his waist and to her which to her indicated that he was armed at the time when he was saying i'm going to harm you if you don't get out then he also but there's nothing in the record the says he motioned to his waist it said it says he touched his body but one of the points that the defendant makes is that there was never a question as to exactly what he wanted to and given you know that bless him given that outfit he had on that day with the were saying that that it's possible and the jury could recently for that he had said some sort of what the weather was a pocket knife or whatever that would help him carry out this this carjacking but aside from the weapon i mean you don't even even if it's in if it was such a threat she even waited twenty minutes before calling the police and it didn't it didn't even seem as if she took it that seriously you got you don't i don't think that the record supports that inference i i think that this is all again these are jury arguments that the defendant was permitted to tell to argue to the cherry and say well look maybe missile that didn't think that we think that's absolutely not correct we think she did think she was threatened she was scared she told him  not in the nine hundred and eleven call that she was scared about leaving the premises because she didn't know if he had a gun or a knife so all and again this is you have to look at all the facts in the matter most favorable to the jury's verdict and here you have  guerrero and mr kind of pena were at that gas station for about an hour before they carried out this carjacking and they were looking for victims trying to select the victim that they could that they could victimize and steal a car from and they selected mr guerrero the larger one to carried out and then they selected a vulnerable person to against whom mr guerrero could use physical force to carry out to even to finish a carjacking here you so it's akin to for example when courts look to if someone is in a relative it's what's relevant is can the defendant was he capable of carrying out the threat and here the choosing the victim and the huge size differential met that mr guerrero could if necessary use physical force to to carry out the carjacking here so it's for example courts have look to if someone holds up a gun to someone and says i'm going to shoot you if you don't get out courts consider among other any other factors was the gun loaded because if someone says i'm going to shoot you but the guns not loaded now just in terms of the district court seem to  someone an individual who facing someone much larger in size would just say yeah take it i mean that can suggest perhaps i don't see how that supports the other inference which we believe is true miscible not irrational at all is that they chose a victim because it was smaller because if that victim resisted mr grow the much larger person could use force to finish the carjacking cases involving this carjacking statute and could not find any capes that was remotely the end of any evidence the use of a weapon some car and resort to some physical course of some kind nothing seemed to come close to the facts of this case suggested being that this passes and the line of rationality in terms of how the these kind of categorical rules like there has to be other gun or there has to be force and that's just not that's not correct is not the correct anetta method of analysis what the correct method of analysis is to look at the totality of the evidence in the case in th particular case and conclude could a jury reasonably conclude or was it totally irrational for the trade to include that the defendant here was prepared to commit violence to carry out the carjacking and by that but the fact that other cases may have had different types of evidence and in some respects perhaps stronger evidence doesn't mean that the evidence in this case was met renders that the jury's conclusion utterly irrational so i mean and again the jury has to be permitted to make commonsense conclusions and it defies common sense to suggest that mr guerrero was prepared to use force and armed missiles but he was going to stop just short of serious arm he was prepared to do what out and call a serious physical harm to miss silva the fact that he was ordered to take the vehicle the evidence establish that he was under order to take the wheel the ickle which establishes that he's prepared to do what was necessary to complete that task the evidence that they' him in order to take the vehicle that he was supposedly they gave an order that he has to take the vehicle that's what the evidence was and then there's also the fact that is only means of escape was on foot if you were unsuccessful he would have had to run on foot flee on foot in a public area with other people there suggesting that he would have done what was necessary to get in that car to leave that's another factor all of these factors collectively establish that the jury was reasonable it was it was rational for the jury to conclude that mr guerrero if miss silver had resisted  should have would have attempted to cause serious physical harm in the fact that mr silva acquiesced because her children were there and she didn't want to risk than just the mere fact that she acquiesced shouldn't seek counsel thank you this case it involves a car theft not a carjacking this car theft involved no weapon no force no violence not even touching video evidence presented at trial showed that after a the evidence so the case for what it was federal overreach and it correctly concluded that the evidence was legally insufficient to support it beyond a reasonable doubt finding that mr gately i don't have the requisite intent to kill or seriously harm anyone to take the car now the government built its argument by repeatedly characterizing as speculation and conjecture as it were reasonable inference and by virtually ignoring the beyond a reasonable doubt standard which it barely mentions some information that raises the possibility of something better reasonable inference is something very specific a reasonable inference is a conclusion which follows logically from an established fact through the use of of  logical argument of law of logic and reason so instead of presenting evidence the government really relies on on us to use our imagination to find the requisite intent in this case all carjacking cases in this circuit and in other circuits required choir affirmative evidence that a defendant was willing to engage in the kind of violence that would cause death or serious bodily ringback injury in order to find the requisite intent for a carjacking based on objective visible conduct now that could be either so when when he says when when this to guerrero sit that he would not harm her or her children if she cooperated and then touched his why why isn't why isn't there sufficient for a reasonable jury to conclude that he intended serious bodily harm or they as you may have noticed from our brief that we actually take issue with finding that there was a bonafide threat included in that that's that's necessarily suggested by that conduct but even if if the jury had been permitted to enter are reasonable at inference o elven actual threat then it would the which is actually what the district court below assumed the district court assumed and credited the government requested in france that that actually constituted a bonafide threat but even if it had that something or harm that was suggested by the threat was not bodily harm necessarily nor was it nor was it serious bodily harm which is what  the statute when or when i mean what's what is hard to what is unreasonable by believing that this man who was facing a a woman to put a foot shorter with her children in the car what is an reasonable or logical about assuming that he would do what he threatened to do which was harm her if she didn't obey him and inflict serious bodily harm he could've he could have easily broken bones short term with his bare hands could done any number of  he approached the door when she was going to open the door to get out of the car and her testimony is that he stated to her that he had been sent to take the car and she actually thought it was a joke or a prank so she asked if he had something to if this had something to do with the previous owner of the car he responded yes and immediately said look i'm not going to i'm not going to hurt you or do anything to you or your children as long as you cooperate so if you look at the context the context does not necessarily imply a bonafide threat but even if we were to assume that if there was an implicit threat to do something or to do harm that's different from a threat to and i know that you're right about that but so it sounds like you're arguing that when there's an affirmative threat because the defendant used the word harm then he has to describe the harm or he or she has to describe the harm to be inflicted if we're to or otherwise we can't infer serious bodily harm while in the size different enough because the adams case that you sent your brief says that the test for intent is the present ability to follow through on the threat that's certainly well the thing is that the cases they focus on on having the means to carry out the threat are really focusing on having prepared in some way to carry out a threat usually by having a weapon writers or some other design which would which would facilitate the use of violence but he can't be penalized because he's a he's a bigger guy i mean that's what the judge said but can't he on a month penalized be bigger but can a jury actually sounds like you are you were you were asserting what he could perceive before he made a decision for scott were designed come from i don't i'm not aware that there's any evidence on the record to support the proposition well he approached the car before he had he may have had an opportunity to see and there's nothing in the record that shows that he did have an opportunity to appreciate her size and stature before he approached the car and before she opened the door so but even if that were the case even if that were the case the truth is there's no evidence here that he was willing to engage in the kind of violence and just to make a  clarification the government seems to think that the padding may have been made and threat or some kind of affirmative defense it's not an affirmative defense it's an obligation of the government to prove beyond a reasonable doubt that it wasn't an de threat and especially since the government relies on the implied threat with a gun and there's zero evidence in this record of a guy and zero though that the jury was not entitled to infer that there seeing the driver waiting and then approaching he saw the driver you saw the drummer signs yes he saw the car but if you look at the video evidence it appears that there were tented windows you cannot see from the video evidence you cannot see inside the car at least that what i and when i saw it about and times i could not tell if anyone who was close to the car could have seen into the inside the car so it was a sunny day there may have been glare or  video evidence doesn't show that he could appreciate what you know what she looked like inside the car and the judge in don't study inference even so and the problem here is that his conduct at all times he approached the car and it was sort of talked about that he was going to take the car to the i'm that he left with the car almost a full two minutes transpired and every time and he allowed her to take his things out of the  go through an entire process it was almost a business like transaction so the government's insertion of facts that are not supported by the record show that the that the you described your statement of facts in your brief and based not only on the trial record but on the p s r which frankly i think what you've done is insert back into the record that weren't there were possible in the trial record i think that's impermissible and i think there are some instances in your brief of them oakland take you to task for them right now but if you're going to suggest that the prosecution did that and then your brief actually shows the opposite you even can see that you grew facts and i'm thirsty and i'm going to go get a drink you can infer that i got a drink but you can infer that i drank a coke that is to insert an additional fact so when the person when when mr get it all says i'm not going to do anything to infer that he would have that that means and that he meant to communicate that he would have committed that he would have committed violence that would have cost the kind of serious bodily injury that is required by the statute this i was i was in fear and so i so i complied and she says i was in fear i was in fear that if i did not do what he said he would hurt me  how what is the relevance of her fear her reaction her sense of to mitigation to the intent element the the jury has to find in order to compare to  what is relevant what is that all the all the important thing is that what we're trying to determine is his state of mind not her state of mind her state of mind is not equivalent to his state of mind and she can draw conclusions and be suspicious and jump to conclusions whatever she finds useful her life but unless the jury has specific facts from which they can determine that her percepts and are reasonable then then we have a problem which is the problem i guess i guess we're trying to figure out why was the term perception reasonable her per her well there is she she states various perceptions one perception this she was being threatened and i've already addressed a little bit why that perception may have been problematic but even if we even if we did credit that that there would still be no evidence that it was anything beyond an empty threat and  perception of a gesture some kind of a gesture we really just have no facts we could have had a description of the gesture but we don't the government stated in its opening argument that he touched his waistband but that's nowhere in the record and she never said that and the government never asked her what the gesture was so this this gesture which she never mentioned in the i'm eleven call and which she describes in really equivocal language sort of an intimidating gesture  and her account putin's this was this was truly an emotional event but i would think your point would be that even if her perception was reasonable reasonable to fear this large man who's saying that on i'm going to hurt you i mean i won't determination under rule twenty nine credited those those perceptions and what it concluded was that even if even if that had been an a bonafide threat and then there was no evidence to support the inference that it was anything beyond she and her and that it and in of itself we have to use the defendant's conduct as the primary indicator of his intent and his conduct throughout the throughout this encounter was accommodating to the owner and avoidant of all violence and that is that sex this case completely apart from virtually any other carjacking case and even if the court looks at the estoril sather which this court found was a close case there we had a defendant who was on armed but who engaged in ever escalating violence even up to the point of putting the car and here while a desperate grandmother was trying to get a child out of the back of the car and here there was nothing even closely similar this is exactly the opposite the mr gabriel accommodated miss miss sylvia and allowed her to do everything she needed to do before he took the car there's just no information and there are just no facts that suggest that he would have done anything other than allow this to go on anything else is speculation anything else is imagining what might have happened if the facts had been a little different and the truth is we just don't know and in addition to the reasonable inferences that might be drawn we have to remember that the case the government had to prove its case beyond a reasonable doubt so the idea that because it's possible that he might have been gauged in violence  it would not support a conviction because the case had to be proven beyond a reasonable doubt thank you counsel wheels good wheels good wills meaning a pretty cocky so when the other person on the other person missile the plainly believed mr grove when he said he was going to harm or unless he gave up the car and the jury was reasonably entitled given all the totality of the circumstances in this case to reach the same conclusion that graham meant what he said was not bluffing the defendants asked this court to turn the rule twenty one motion the jackson people to new standard on its head and to entertain inferences that would cut against the jury's verdict but obviously the court has to entertain that they went to the get the gas station with the intent with had made a decision that they were going to commit a carjacking steal a car and then they waited an hour looking at various potential victims and then only when m here in terms of the resort to violence to physical force why the defendant there was nothing remotely like that in this case so if that was a close case why isn't this that this was a premeditated crime that the defense had were waiting at least an hour to commit and look for a victim a much larger defended capable of carrying out this go on to carry out was selected and went there there was an oral serious bodily injury or harm we honest that it's the method of planning and all the facts that go to the planning you know which is waiting for eight victims against whom they could use harm and selecting the ringback one of the two  perpetrators who is able to carry out that harm and physical harm and that kind of premeditation was not was not present india as there's also no explicit explicit threat in that case there was is that you can't really tell how tall they are so you know you know we had a how do we assume that he chose her because she was small because he isn't really any way of knowing that before she actually got out of the car two things on earth one is that the jury could reasonably infer from the circumstances that because the defendants were waiting in selected someone at that point they were waiting for someone vulnerable but also they c like that are well your honor you can also reason for that when someone situated in their car and you can tell generally from their vantage point whether they're higher law and that's a reasonable inference a jury can make and also can see very well we think you maybe this is of a vulnerable d person a smart person but then he wasn't going to make the final choice intil he was actually there and he did see her so he did see her before he made that threat he only made that threat after he saw miss silva right in front of him so he are intended to conclude that that was a factor both in selecting it and then in finalizing it actually carrying it out and i would say in terms of all this evidence about that that it was a calm situation that all goes to the point that you have to look at the moment that mr silver and mr guerrero took control of the car and and made the threat at that point he said i'm going to hurt you if you don't if you don't cooperate then missal the acquiesced and she said that got her i'm sorry that he made that threat the import of this the this substance that was conveyed is get out of the car or you're or you're going to get hurt you and your children are going to hurt you and at that point then not certainly the way he treated her after that moment that you focus on the way that he allowed her to get her stuff out the car the way in which he hoped or certainly that informs what his mindset was at that moment that you're referring was in his mind at the moment the truth functional not certainly it's a jury argument that could have been made that look he was calm afterwards but let me tell you why certainly does not compel a finding of jerry irrationality here that's because the as as the supreme court holloway stated what's important is the mindset at the point when the defendant took control of the vehicle at that point didn't intend if necessary to carry it out and in this case mr grown made the threat mr s time he had used the threat of force and the intended use of force to take control that vehicle and at that point he had no use for potentially threatening her equal he was under in control of the situation at that point in control of the car and he let her  than let it escalate even or get her things out and that that doesn't compel the conclusion that at the moment that he took control of the car he made that threat he didn't need to carry it out and i would point the court to the th circuit decision and small in that case the the defendant's help the gun to the victim said give me a kit a pattern down give me your keys take your keys he said here you got the car keys can have my house keys they said fine but they only took the house keys and then they said you're coming with us to your car and he said i'm not going same thing here mr guerrero took control of the car at the moment he he threatened miss silva and she acquiesced and got out of the car at that point in time is that it's the equivalent of the the victim in small walking lane saying i'm not  house and at that point in time yes he didn't want to perhaps perhaps maybe he didn't want to commit violence at that point as he had control of the car and for all these reasons we think that the jury reasonably conclude it wasn't  rational for the jury to do that mr guerrero intended to not use to take lot of serious physical harm or death that necessary to carry out the carjacking in this case we've asked the court to reverse and remand with instructions to reinstate the