Legal Case Summary

We'll now hear the cases of United States versus goal tooth and to see. Do you have a time allocation? Yes, Your Honor. Jim Parker, apparently I have Mr. Soci, Mr. Mitchell, and I will split the time we like to reserve to mine three minutes through the bottle. Very good. Thank you. May I proceed? Thank you. May please the court. My name is Jim Park. I'm here for Phoenix. I'm on behalf of my client, Myron Soci, who is currently serving a 78-month sentence imposed in this case, and he'll be spending his four-year year in incarceration as a result of the conviction in this case. The 78-month sentence basically essentially comes down to for taking a approximate value of three to four dollars to the back of products from two victims who are count one, would have been Mr. Crawford, and count two would have been Shelton Davis, or Mr. Davis, two young individuals. And tonight, July 31st, early hours, these two individuals sitting outside a conical gas station at a curb rolling up hand-rolled cigarettes after they had combined their money together and purchased tobacco products. At this point, they appear to have no money on neither of the victims, Mr. Crawford, nor Mr. Davis had any money on them at that point. What exactly is the pertinence? Well, your client was not convicted for the money or wallet, right? That is correct. I should have right to go. Okay. And count one, there's no dispute. That involved, the count one involved Mr. Crawford, who had the tobacco product, and government did prove the case. It's based on the evidence that was presented to the jury at that time

. We don't really, from a legal standard, we don't really have it. No. I mean, somebody took the tobacco, right? Correct. That's the count. And aside from the ones that were rolled, somebody took the tobacco. Yes, they gave. So is the problem they don't know who took it? Or is the problem that that wasn't a robbery or what's the problem? We don't have any dispute with that, Judge. That's count one. What we have at this point is with count two. There was nothing was taken in count two. The victim, in that case, Sheldon Davis did not have anything according to his testimony. He had a wallet in his back pocket, but he had no, he does not recall having any money. Well, explain to me exactly what difference that makes in the sense that nobody ever said give me your money or your wallet or anything else. They never said give me anything. They never, I believe the question was asked is there a, what do you have in your pockets? Yes, do you have anything in your pocket? Right. But they didn't say and give it to me. There was nothing asked of them to be given. It's correct. So what's the, I suppose they, if they had sent give me your, your, your wallet, what difference is it, what, what it had made any difference if they, if they thought there was money in the wall, but there wasn't any? I don't know if you would have made a difference if he said give me your, give me your money and, and they give them the wallet, but there's no money in the wall. Does that make a difference in terms of whether they were attempting to rob the money? I think in the way it would make a difference if it was a house charged, I guess, would be the answer. If the, if the, we have all these, I mean, the reason I'm asking these questions is because we have these cases where people, whether they're in a sting operation, right, where the police convinced somebody that they're going to go and rob a whole bunch of money, of drugs from somewhere, but there are no drugs. In fact, there's no somewhere. And somehow we say, well, as long as you have the intention to rob it, it doesn't matter whether it really exists. I mean, I have some problems with that, but that seems to be the case law. So what, what's the difference if there was money? I think to me, the problem here is that there may not have been any robbery, but was there, what's the difference if there was money? Well, I think the, in those entrantment cases that you're talking about with the sting operation, I think, in fact, there's a term not to be entrant

. Correct. You're correct. However, there, I think they're determined to be, they're usually charged with conspiracy. So as long as there's an intent, the object is there, I think they don't have to actually prove in the case law states whether you think it's a thing. And you wouldn't have the same for a chance? We don't have the same issue because this would be a, because this is not charged with conspiracy. But it's a conspiracy. Charge is an attempt. It is charged. The way the statute is written, it's both taking in a completed offense. You can commit it either way, this statute is constructed and disjointive so that, in a disjunctive, I should say, that it's either take or attempt to take. So the, the way the statute written and the way the government charged it, they charged as a conjunctive, which I understand that they're allowed to do that. I mean, this is clearly case law that says they can charge statutes in conjunctive, but proving to be so. But it was clearly a tab because they didn't take anything. They didn't take anything. They're not sure if it's a tobacco, but that's also capable. I'm correct, Judge. And what happened came down to, with no one, I mean, Mr. Davis did not have any money. I mean, it's pretty clear there was no evidence to present that he had any money. Whatever money he had earlier, they had to be spent it because they had to put it together to buy this three to four dollars worth of tobacco for, between themselves to buy it. So there was really, at this point, there was no evidence that the government produced that there was money that Mr. gave the same. Kagan, okay, but I still try to understand the relevance of that. Sotomayor, yes. Well, the relevance, Judge, is here is what happened

. It ruled 29. The government charged with both having wallet and the money and the government, and the defendants moved to a chiptrip. Kagan, no, he had a wallet either. They didn't know he had a wallet or money. Sotomayor, yes. Kagan, yes. But the notice was given to, as part of the charge, you're not going to be that they had a value and they specifically stated money and wallet is what they stated in the indictment. So I believe the government by putting that note as they're stuck with those things if they were to get the money. But let's assume hypothetically that the indictment just said property, generic property. I mean, I understand your argument is, you know, they checked, there's no proof of the wall, there's no proof of the money, et cetera. But let's say property. It couldn't be a reasonable juror infer that when you go up and you say, what do you have in your patched down that that was an attempt to seal some property? I think that would be correct. Except then, at that point, I think you can ask for, as a defendant, you would ask for specific unanimity instruction that all the jurors would have to agree to what that property would have been as part of to get a unanimous verdict. Okay. So what's different about, you know, we have an indictment that's not the case. It says specific property, which we know that the victim had. And what's different about that, my hypothetical? I think they would get stuck. I think the government, if the evidence came out something different, I think they would be stuck with the indictment as the way they alleged it. In fact, I think the government in fact tried to change it later and argue the exact thing that you stated, Judge Todd, is that we don't have to prove anything of any particular object. We just have to give you proof of notice. And the defendant's object to that instruction. So I can't be here arguing saying, well, they should give specific unanimity instruction because they would be an invited air issue. So since the defendant disputed that, what the government essentially tried to correct the jury, what had been a proper jury instruction. But in this particular case, they noticed the property and the thing of value, they didn't say property. They said, thing of value, specific to which a money and wallet and defendant and the victims did not have, the victim did not have wallet

. I mean, the victim had a wallet and no money. Correct. And it was the rule 20. Q. Do you put into attempt to steal something that the somebody doesn't have? Q. I'm not sure if you could commit that kind of type of crime. I couldn't find any. Q. Well, nobody has, yep, but you have an argument that you couldn't. I don't know why you can't attempt to, I mean, if you can conspire to steal something that doesn't exist, why can't you attempt to steal something that doesn't exist? Q. I don't have an answer for you on that one. I think conspiracy is, I mean, I have a lot of disagreements. I think of course a lot of disagreements about how conspiracy charged and how overused it is. But I think conspiracy is a different beast than itself, whereas this, if they charge of conspiracy, I think I'd be, I'd have a lot harder time, argues, but I'd be. Q. Now, can I just back up for a minute? Did you say that you're not contesting the lead to backer conviction? Q. No, that's count one. We can't, we can't contest the backer conviction. That's- Q. Mr. Mitchell be arguing, count one. Q. Yes. Q. The tobacco issue was from a different victim of this clearly that was noticed in the nightmare and that was what was taking

. And in this particular case, during rule 29 motion, there was no evidence. He should have been granted and the defendant would have never been even, the question should have never been even submitted to the jury. That's all the arguments. Q. Okay. Very good. It will give you some time for a battle, Mr. Mitchell. I'm going to lighten this on count one and other matters. Yes, Your Honor. May the police, the Court, my name is Tyrone Mitchell. I represent Colbert Goldtooth in this matter. Judge, with respect to your honors, with respect to these issues, a lot of Mr. Parks and I won't go back over those two issues, but there was two issues, several issues with respect to Mr. Goldtooth, I'd like to address with the Court. The first issue judges with respect to one of the officers testifying during trial with respect that previous occasions he had booked, Mr. Goldtooth. Q. Can I just clarify something? Are you contesting the tobacco count? Yes, Your Honor. We are contesting that. Q. As to the, as a sufficiency issue. Q. That's correct, Judge. And I think that was briefed in and I'll submit that along with the arguments of the two

. Q. Well, he didn't make an argument on the tobacco count. So if you want to make one, I think you'd better make one. Q. And so, well, and I'll get to it on terms of the rule one on the one on six and the completeness on that, if you like, I'll start to address that, but specifically in regards to the evidentiary issues with regards to Mr. Goldtooth, the issue came about with regards to an officer testifying that he had booked Mr. Goldtooth into custody previous occasions. During that time, Judge, Your Honor's eye after his testimony, I moved for a mistrial to which the court did not grant and gave a curative instructions. Your Honor's with respect to that issue, we believe that a motion for mistrial should have been granted as it relates to Mr. Goldtooth. To my experience, Judge, in terms of when specific issues such as this comes in and a jury understands or hears that there has to be, there have been previous contacts, bookings or convictions without it being properly noticed by the government, it's just no way for a defendant to get a fair trial after this occur. Despite, in fact, the district court gave a curative instructions with regards to this case, ultimately, Judge, it puts you in a decision as to whether or not you ask the court to give an curative instruction right then so that jury gets to hear it for a second time that he's been booked and that the jury should disregard it or as to whether or not later on after you make your motion, you ask for the curative instructions. Ultimately, Your Honor's eye decided to go ahead and have the curative instructions be given after this. So they get the curative instruction. That's the only mention it's brief and no arguments made in closing about it. Why doesn't that sort of fall within the brief, fleeting reference rule that excuses from reversal? Your Honor's eye, I know that it is presumed that the jurors will follow the instructions given by the district court judge from a practical standpoint in terms of an issue with respect to prior convictions or prior contacts with the police. It is one, at least in my belief, Judge, that just prejudices the client and that they hear he's had previous contacts before. I know the law is what it is, but I know that in terms of trying cases, it is one of the most, that you guard against that issue most of all when you're trying cases. Sotomayor, I accept your argument, but our case law seems to indicate that that's not structural error that requires reversal. I mean, you have to look beyond the fact that it's the reference is made and as a practical matter, I understand your point. Tell me how we get around how you think this is different from the other cases. Judge, I don't know necessarily it's necessarily different. In terms of, again, you know, trying cases when you have a situation like this where that issue comes out, the bell is wrong, the toothpaste is out the two, you either address it or you hope that it just lies. I know the court, the judge, was asking with respect to, you know, there's nothing else in the record with regards to addressing that issue again. Well, it's just one or two ways

. Either you're going to address it head on or you just end up letting it die and never addressing it again and hoping that the jury was able to follow the instructions. I don't believe they could. I don't believe. I think it's an issue that is inherently a problematic for a defendant when other acts are out. So, again, are you making this sufficient here? I am. I am. Could you? Let me move on to the rule 106 with regards to the issue of the statements that was brought in. That's not a sufficiency, or anything else. I think she's asking you to get to your sufficiency argument first, if you don't mind going out of order of your presentation. With regards to the sufficiency argument of the, of both counts on the cigarette, that the judge was our belief with regards to the evidence that was presented at trial with regards to whether or not the cigarettes or even had or the tobacco was given over, that it wasn't sufficient to make the purchase. Well, the tobacco wasn't given over. They went and took it. So, that's not the argument. And I'm trying to figure out what is your sufficiency argument. Judge, we just don't believe that with regards to the evidence that was presented by the government that it was sufficient to find them guilty of. You don't have a sufficiency argument. Yes, you're right. Well, without necessarily saying that, Judge, that's where we are. So you want to get to your other argument. Which I think is the strongest. And it probably would have started with that first. This is the issue with regards to the completeness with regards to the confession or lack thereof that my client gave to the de-agent. The government opened the door by asking the agent with regards to questions, he had asked my client, Mr. Goldtooth, with regards to what happened that evening. They picked, they picked, they cherrypicked the portions of that testimony in which to present to the jury, but not to present the ultimate question as it related to his denial of the cigarettes

. Judge, ultimately with regards to whether it's inexplicably intertwined rules, one on six, those issues that should have and should have been allowed to hear my client's denial of taking any and all of that information or the cigarettes as related to this case. When I attempted to ask after the government brought out and chose to bring out and open the door with regards to the questions that were asked during the interview and written down in the 302, I was denied that opportunity by the District Court judge. How? We don't have a tape, is that right? That's correct. We have a report. A written 302. You are a police report, Your Honor. Okay. And how are these two statements linked together in that report? It's the same as kind of how it falls through. The questions are asked about what happened that evening. My client explains that he did have come across the victims, was having this conversation and asked for cigarettes. And that's the portion that comes out. The next question or thereof is his denial, but say, hey, I didn't take those cigarettes from the victim. That is the portions that was not allowed to be introduced to give completeness with regards to, I guess, the full context of what was being said during the interview between the agent and my client. But again, to go back to the other problem, somebody took the actual tobacco, a cyclist in the rest. That's correct, Your Honor. Now, I guess the problem with trying to case with co-definance and as it being a conspiracy or other individuals is quite possible. I guess that a jury could have found that there were other defendants, the other defendants, the tobacco, although one co-definant hung and so that it would only be missed or so that it would have been only the remaining defendant that could have taken the tobacco product. That being said, Judge, I believe that the government is making the argument ultimately that it is self-serving. You're saying it shouldn't be admitant admitant. Judge, my position with regards to that issue is I am not a lawyer, I tell the district court just, I agree with that issue. I agree that it is self-serving, but all of the statement in context and how it could be used can be self-serving. The issue is whether or not the additional statement provides completeness within the context of what was being said. And I don't believe that Rule 106 and the, I think it's 801, precludes that from being brought in. And if in fact it brings context as to the completeness of the statements. Now, the government also says that Rule 106 doesn't apply because it has to, because that's confined to written documents

. After response? Judge, within our brief, we signed a seven-circuit case as well as a district court of New Mexico with regards to that proposition. It was written down with regards to the statements that are my client, my client, made. And I believe it falls within a purview of Rule 106 as the written portion of it. I believe there, and the government presented this to us a couple of days before. There was a ninth-circuit case that came out with regards to addressing this particular issue, I believe it was belails. And in that case, there was an issue with regards to an individual who was distributing child pornography and had given an audio statement with regards to that. But during trial was not allowed to give information that jail time that he went to church, and there was another issue, I believe. I submit to the Court that that issue is a lot different than our case in that I would submit in belails. That is out of the context of which Rule 106, I believe, provides. It is an issue that in terms of Rule 106 and terms and what we're essentially arguing that it is needed, the statements are needed to provide completeness as to the interview that was cut, that was conducted by the officers of my client. Additionally, Your Honours, it's my position that although it may seem small, it is an issue that of which we could have added additional defenses for Mr. Colbert in this case. And ultimately, Judge, it is our position that the Court should grant our motion and grant us relief in this matter. Thank you. We'll hear from the government. Thank you. Good morning, May it please the Court, Rachel Hernandez on behalf of the United States. In this case, we're the defendant's surrounded the victim, the victims, while brandishing knives and a weighted baseball bat, ask them what they had on them, padded them down, announced their gang affiliation, and ultimately took the one thing of value that the victims possess. There was more than sufficient evidence for a jury to convict. It's unclear to me having heard the argument whether there is still a dispute as to count one, I will just say briefly that in the briefing, Mr. Golduth contends that the fact that the victims had offered cigarettes meant that they were free to take the bag of tobacco. I don't think. Well, what do we know about who took the bag of tobacco? It is a bit unclear from the record. However, it appears to be the person who held the bat, which appears to be Mr. Golduth

. Okay. Well, I'm not yet asking, but you're not trying to prove any particular defendant or the principal, the government, any of you doing that is very correct. I'm terribly sorry, Your Honor, I could make that whole question out of you. I have to speak in the word, take it far away. Oh, I can't prove. As I understand your argument, you will not try to prove that any particular defendant was the principal. You will find a proof that they were anything in the bat. That is correct, Your Honor. There was an eating and a betting. And the different ads as an advocate of the standard, you have to prove, say, intentionally intended to commit the crime. Is there any other person on that crime? The other person, whichever is the other person, if we don't know which is the other person. You have to prove that you have to prove a defendant intentionally intended to act as the bat. Is that correct? Yes, knowingly or intentionally. That is correct, Your Honor. And intentionally. And when you don't know who the good is, how do you prove they were knowing an intentional? Well, you can prove that from the circumstantial evidence of the actions that they took surrounding you. Are you aware that there was a case last week or so in the Supreme Court in the Rosemond versus the United States about eating and a betting? I am not aware of that, Your Honor. It seems to be fairly tough about what you have to prove in terms of intent. I apologize, I am not familiar with that case. You've been speaking to me about the two-way from your book, The Fifth Place, in 203, which was a piece of me, all the other people, that there was intimidation, but you know from that there was an intimidation with an end to the wrath of the Iraqis, what was the effort that you were intending to for the Iraqis? Well, the evidence that they were intending to rob them of the tobacco is the fact that they did, that they reached down and grabbed it out of the lap. But only one of them did. See, that's the problem you've got. One of them did. We don't know which. If we know which one that one was, we could assume that he seems to me in the intent to take it, but how can we assume the other guy intended for him to take it, whoever the other guy is. And since we don't know which is which, how have we proven that the ending in a betting with regard to each of them, because you don't know which one took them, right? Well, I believe the record indicates that Mr. Golduth was the one holding the bat, and the testimony was that the person holding the bat was the one who grabbed the bag of tobacco. He was also the one who nudged the victim in the back of the head with the bat. Are you changing your position, and are you, are you, are you, are you, are you, are you Are you, are you changing your position? Are you arguing that Mr. Golduth could do as a principal? I don't believe I'm changing the position that we argued in the briefs, no. All right, well then, you don't know what this was supposed to go, because these are what it was. Is that correct? Well, not now which one is the principal. Right? Will you say you were responding? Yes, Your Honor. I would say that there is some evidence in the record that it was Mr. Golduth. I can't say with certainty standing here. No, I cannot. I believe there's some evidence that he's the one with the bat. I have to prove bathing in a betting and that no one is intentional action by the vendor. And then the question is how do you prove that? Again, I point to the actions that they took when they surrounded the victims with their weapons and taking the tobacco. And if I may repeat myself, you certainly should be so random to them. You should have the torundance knowing and intentionally, you can't let the tobacco get to tobacco. All right. Let me clarify that question a little bit. Are you familiar with the Supreme Court? I think it came down as much. That's the one I just mentioned. The one one. Right. Your Honor, I apologize. Judge Brisson just asked me about that and I am not familiar with that case

. And since we don't know which is which, how have we proven that the ending in a betting with regard to each of them, because you don't know which one took them, right? Well, I believe the record indicates that Mr. Golduth was the one holding the bat, and the testimony was that the person holding the bat was the one who grabbed the bag of tobacco. He was also the one who nudged the victim in the back of the head with the bat. Are you changing your position, and are you, are you, are you, are you, are you, are you Are you, are you changing your position? Are you arguing that Mr. Golduth could do as a principal? I don't believe I'm changing the position that we argued in the briefs, no. All right, well then, you don't know what this was supposed to go, because these are what it was. Is that correct? Well, not now which one is the principal. Right? Will you say you were responding? Yes, Your Honor. I would say that there is some evidence in the record that it was Mr. Golduth. I can't say with certainty standing here. No, I cannot. I believe there's some evidence that he's the one with the bat. I have to prove bathing in a betting and that no one is intentional action by the vendor. And then the question is how do you prove that? Again, I point to the actions that they took when they surrounded the victims with their weapons and taking the tobacco. And if I may repeat myself, you certainly should be so random to them. You should have the torundance knowing and intentionally, you can't let the tobacco get to tobacco. All right. Let me clarify that question a little bit. Are you familiar with the Supreme Court? I think it came down as much. That's the one I just mentioned. The one one. Right. Your Honor, I apologize. Judge Brisson just asked me about that and I am not familiar with that case. Let me draw your attention. We may want to ask the answer, breathing on a company opinion. The intent must go to the specific and entire crime side. Would you think? Your Honor, I would ask permission to provide additional breathing and light of that. I just want to drop this for you to think about it. That's on page 11. On page 13, with a written, just different, would think that means large. At a time, the accomplice can do something with it. Most know the way you ought to walk away. The men have a chance to walk away before somebody grabs the house. Is that? Is that time to walk away? Yes. They had time to walk away. They all arrived in the car together. They walked up to the two victims who were sitting on the curb. They surrounded them. They said, what do you have on you? The victims said nothing. They pated down the front pockets. At that point, they took a hat off of one of the victims' heads, which they ultimately gave back. And they took... All of them knew what the victims had done. So how did they have time to walk away? I missed the first part of that question. At that point, it was responding to nothing on the victim. So why was that? It was in the wrong way

. Let me draw your attention. We may want to ask the answer, breathing on a company opinion. The intent must go to the specific and entire crime side. Would you think? Your Honor, I would ask permission to provide additional breathing and light of that. I just want to drop this for you to think about it. That's on page 11. On page 13, with a written, just different, would think that means large. At a time, the accomplice can do something with it. Most know the way you ought to walk away. The men have a chance to walk away before somebody grabs the house. Is that? Is that time to walk away? Yes. They had time to walk away. They all arrived in the car together. They walked up to the two victims who were sitting on the curb. They surrounded them. They said, what do you have on you? The victims said nothing. They pated down the front pockets. At that point, they took a hat off of one of the victims' heads, which they ultimately gave back. And they took... All of them knew what the victims had done. So how did they have time to walk away? I missed the first part of that question. At that point, it was responding to nothing on the victim. So why was that? It was in the wrong way. There was nothing on the victim, so why was there any reason to walk away? Well, they knew that they had something. They saw the baggage tobacco. The victim said they had nothing, but that doesn't mean that they actually had nothing. But the problem is you keep saying they, and that's the problem. And I don't want you to drive the attention to page 16 of the civil opinion in Rob's one. Are you there? Page 15 of... A drug one. The defendant based those front toys, when the knowledge comes too late, it has to be reasonably able to act upon it. In other words, if the other person, whoever the other person was, didn't know that the first person was going to take the tobacco, and then he took it, then he didn't have a chance to walk away. And again, I have not read that case, and I would ask for permission to brief it. I guess I would say. What about the other count, yes. Well, with regard to that count, there is circumstantial evidence of attempted robbery. Again, pointing to. It's not very strong. I mean, they, they, they, they, they, they were really trying to find out what they had, what did it take what they had in their pocket, to suppose to knowing whether they had weapons. They wouldn't, A, ask them, which they didn't, like give me what's there for some of your pockets, and B, if they were patting down, I mean any, any, most people would know that the likely place to keep a wall is not in your front pockets, in your back pocket. And they didn't do anything about a back pocket, because presumably they were trying to find out about weapons. Well, that's certainly one in France, of course, the jury rejected that inference. At the time that they patted them down, they had already asked the victims, what do you claim? What gang are you a part of? And they said, we're not a part of a gang. Right. That sounds like it's going more towards weapons than robbers. Go ahead

. There was nothing on the victim, so why was there any reason to walk away? Well, they knew that they had something. They saw the baggage tobacco. The victim said they had nothing, but that doesn't mean that they actually had nothing. But the problem is you keep saying they, and that's the problem. And I don't want you to drive the attention to page 16 of the civil opinion in Rob's one. Are you there? Page 15 of... A drug one. The defendant based those front toys, when the knowledge comes too late, it has to be reasonably able to act upon it. In other words, if the other person, whoever the other person was, didn't know that the first person was going to take the tobacco, and then he took it, then he didn't have a chance to walk away. And again, I have not read that case, and I would ask for permission to brief it. I guess I would say. What about the other count, yes. Well, with regard to that count, there is circumstantial evidence of attempted robbery. Again, pointing to. It's not very strong. I mean, they, they, they, they, they, they were really trying to find out what they had, what did it take what they had in their pocket, to suppose to knowing whether they had weapons. They wouldn't, A, ask them, which they didn't, like give me what's there for some of your pockets, and B, if they were patting down, I mean any, any, most people would know that the likely place to keep a wall is not in your front pockets, in your back pocket. And they didn't do anything about a back pocket, because presumably they were trying to find out about weapons. Well, that's certainly one in France, of course, the jury rejected that inference. At the time that they patted them down, they had already asked the victims, what do you claim? What gang are you a part of? And they said, we're not a part of a gang. Right. That sounds like it's going more towards weapons than robbers. Go ahead. But at the point that they had said they're not in the gang, the likelihood that these people are armed diminishes. And so the fact that they then went on to pat their front pockets down, I'll admit they should have done it. Is it not ordinarily the case is that you want to rob something, you say give it to me? Sure. That is ordinarily how it's done. Ordinarily people are more thorough than these people, even if they were searching for weapons, a weapon could be in the back pocket. A knife could be in the back pocket. A knife could be in the back pocket. A knife could be in the back pocket. I mean, that's easily pulled out. So I'll submit. I don't think they were very good at whatever they were trying to do. It does seem to me quite aside from this money and wealth business. It's hard to say that there's a reasonable person could find me beyond a reasonable doubt that they were trying to rob anything. Well, I think the, I think that there is evidence of that when you take a look at the fact that in fact they did take the one thing of value that they found. So in, in, to, as to victim one, he was passed down. It wasn't a much value. It was obviously because they wanted to the tobacco. Well, it wasn't a much value, but it's, it wasn't theirs to take. It wasn't offered to them. And, and they took it having been armed, having surrounded these people, having padded them down. And so we would submit that there, there are other inferences to be drawn, but the jury disregarded those. And at, at the stage of review, the court is required to presume that the jury resolved any conflicts in favor of the government. Additionally, as to whether, as to the jury instruction on wallet and money, the government can charge in the conjunctive and prove in the disjunctive. In this case, the court instructed mistakenly the jury as to wallet and money. So even if this court were to find that the defendant, the victim, didn't have money on him, we know that the jury unanimously found wallet and money

. But at the point that they had said they're not in the gang, the likelihood that these people are armed diminishes. And so the fact that they then went on to pat their front pockets down, I'll admit they should have done it. Is it not ordinarily the case is that you want to rob something, you say give it to me? Sure. That is ordinarily how it's done. Ordinarily people are more thorough than these people, even if they were searching for weapons, a weapon could be in the back pocket. A knife could be in the back pocket. A knife could be in the back pocket. A knife could be in the back pocket. I mean, that's easily pulled out. So I'll submit. I don't think they were very good at whatever they were trying to do. It does seem to me quite aside from this money and wealth business. It's hard to say that there's a reasonable person could find me beyond a reasonable doubt that they were trying to rob anything. Well, I think the, I think that there is evidence of that when you take a look at the fact that in fact they did take the one thing of value that they found. So in, in, to, as to victim one, he was passed down. It wasn't a much value. It was obviously because they wanted to the tobacco. Well, it wasn't a much value, but it's, it wasn't theirs to take. It wasn't offered to them. And, and they took it having been armed, having surrounded these people, having padded them down. And so we would submit that there, there are other inferences to be drawn, but the jury disregarded those. And at, at the stage of review, the court is required to presume that the jury resolved any conflicts in favor of the government. Additionally, as to whether, as to the jury instruction on wallet and money, the government can charge in the conjunctive and prove in the disjunctive. In this case, the court instructed mistakenly the jury as to wallet and money. So even if this court were to find that the defendant, the victim, didn't have money on him, we know that the jury unanimously found wallet and money. But there was no money. I mean, that, that fact is clear from the record. There, the victim said he didn't recall if he had any, that is correct. You said he didn't have any. He, I, I don't dispute that he didn't have money in his wallet. But my point is, what does that leave us because you pled money and wallet and certainly you could have asked for the disjunctive, but the instruction was money and wallet. Well, I think it leaves us that we can excise money and wallet was still found unanimously by the jury because in order for the jury to have returned a guilty verdict on count two, they necessarily had to find wallet and money. So even if this court feels that they should not have been instructed on money based on the evidence, we can remove that and still have a unanimous verdict on wallet, which there was evidence that he had. It's not that you had gone up to them and said, give me your wallet and your money. And they didn't have it. Is that an attempt to rob a wallet and money? Well, this, I'm not sure that there's any nice circuit case on that. There's a fifth circuit case, Dickson, which I cite in my brief in which they said, give me your wallet, the person did not have a wallet. He had a checkbook. He said, I don't have a wallet and that was upheld as attempted robbery. I think it probably is. And that's why I'm, but the problem here is that it didn't ask for anything in particular. Well, I think there's circumstantial evidence that they did, having somebody down asking what do they have in their pocket. But does that change the answer to that question? In other words, the fact that they weren't asking for anything in particular, does that make it matter whether they actually had a particular thing that was charged? I would say in the fact that this case, it doesn't because of their actions in intimidating, in trying to take something, a force by padding down their pockets, I would say under the fact that this case that doesn't change the analysis there. Well, let's say that he didn't even have a wallet on him. Where does that, where, where would that leave you in this case? I think the reasonable inference, again, from the circumstantial evidence here is that they were trying to take something of value from the defendant. It's from the victims, rather. Well, it's supposed to have a ring in his pocket, but it didn't have a wallet or money. Right. The reasonable robber's, the quintessential item. Could you put 10-per-fam guilty of attempting to take a wallet, money in a wallet? Where a wallet? I think that the inference is that robbers typically, quintessential, they are looking for something of value, usually money, and I think that's a fair inference

. But there was no money. I mean, that, that fact is clear from the record. There, the victim said he didn't recall if he had any, that is correct. You said he didn't have any. He, I, I don't dispute that he didn't have money in his wallet. But my point is, what does that leave us because you pled money and wallet and certainly you could have asked for the disjunctive, but the instruction was money and wallet. Well, I think it leaves us that we can excise money and wallet was still found unanimously by the jury because in order for the jury to have returned a guilty verdict on count two, they necessarily had to find wallet and money. So even if this court feels that they should not have been instructed on money based on the evidence, we can remove that and still have a unanimous verdict on wallet, which there was evidence that he had. It's not that you had gone up to them and said, give me your wallet and your money. And they didn't have it. Is that an attempt to rob a wallet and money? Well, this, I'm not sure that there's any nice circuit case on that. There's a fifth circuit case, Dickson, which I cite in my brief in which they said, give me your wallet, the person did not have a wallet. He had a checkbook. He said, I don't have a wallet and that was upheld as attempted robbery. I think it probably is. And that's why I'm, but the problem here is that it didn't ask for anything in particular. Well, I think there's circumstantial evidence that they did, having somebody down asking what do they have in their pocket. But does that change the answer to that question? In other words, the fact that they weren't asking for anything in particular, does that make it matter whether they actually had a particular thing that was charged? I would say in the fact that this case, it doesn't because of their actions in intimidating, in trying to take something, a force by padding down their pockets, I would say under the fact that this case that doesn't change the analysis there. Well, let's say that he didn't even have a wallet on him. Where does that, where, where would that leave you in this case? I think the reasonable inference, again, from the circumstantial evidence here is that they were trying to take something of value from the defendant. It's from the victims, rather. Well, it's supposed to have a ring in his pocket, but it didn't have a wallet or money. Right. The reasonable robber's, the quintessential item. Could you put 10-per-fam guilty of attempting to take a wallet, money in a wallet? Where a wallet? I think that the inference is that robbers typically, quintessential, they are looking for something of value, usually money, and I think that's a fair inference. When you get further and further from something typically found on a person during an encounter like this, I think we move further and further away from. That should subit what I've wring a ring in their pocket or, I don't know, you know, a ring, a cell phone, I agree, at some point. At some point they had a cell phone, but they didn't have a wallet or money. Could they then be guilty of attempting to steal a wallet or money? I would say that that would be, I think you could. I think you could be charged with that. That's something that a person would typically have on them in the absence of any sort of demand for a certain item. I think that's possible. But because we know that that is typically what a robber does, asks for money, is asking for a wallet. But he didn't ask for. I mean, that's for, not only that, don't we get back to the eating and abetting problem at that point. In the sense, now, since neither of them actually, I mean, would you say that both of them had made an attempt to do this, even though neither of them specifically were shown to have an intent to take a money or a wallet, to go get back to the robber's mind problem? Right. And again, I'm not familiar with that case, but I would say that. I mean, if all the intent to do was take something that was in the pocket somebody, and they had no idea what was in the pockets, is that good enough for any embedding? Well, again, I think it's a reasonable inference that a man has a wallet in his pocket. I mean, that's a typical thing that a robber would expect and would look for. Well, I mean, let's assume that you charged him with trying to, you charged the defendants with trying to steal a gun, which might not be unreasonable if they're getting affiliation or carrying on the reservation, and he doesn't have a gun. Can you convict him? And as I said, I think at some point, you lose the reasonable inference. I think that when you've had somebody down, you've asked them what they have on them. They're sitting outside a store. They're holding something that appears that they just purchased it. I think it's a reasonable inference to assume that they were trying to get his wallet and money. Beyond a reasonable doubt? I believe, based on the circumstantial evidence, yes. I mean, it's also a reasonable inference. I mean, I know we're getting a perhapsful far-field, but maybe not, that if you would have found a gun, they would have taken it. But you really can't charge him with trying to steal a gun they didn't have. It's not tough to say you're charging with stealing money you didn't have

. When you get further and further from something typically found on a person during an encounter like this, I think we move further and further away from. That should subit what I've wring a ring in their pocket or, I don't know, you know, a ring, a cell phone, I agree, at some point. At some point they had a cell phone, but they didn't have a wallet or money. Could they then be guilty of attempting to steal a wallet or money? I would say that that would be, I think you could. I think you could be charged with that. That's something that a person would typically have on them in the absence of any sort of demand for a certain item. I think that's possible. But because we know that that is typically what a robber does, asks for money, is asking for a wallet. But he didn't ask for. I mean, that's for, not only that, don't we get back to the eating and abetting problem at that point. In the sense, now, since neither of them actually, I mean, would you say that both of them had made an attempt to do this, even though neither of them specifically were shown to have an intent to take a money or a wallet, to go get back to the robber's mind problem? Right. And again, I'm not familiar with that case, but I would say that. I mean, if all the intent to do was take something that was in the pocket somebody, and they had no idea what was in the pockets, is that good enough for any embedding? Well, again, I think it's a reasonable inference that a man has a wallet in his pocket. I mean, that's a typical thing that a robber would expect and would look for. Well, I mean, let's assume that you charged him with trying to, you charged the defendants with trying to steal a gun, which might not be unreasonable if they're getting affiliation or carrying on the reservation, and he doesn't have a gun. Can you convict him? And as I said, I think at some point, you lose the reasonable inference. I think that when you've had somebody down, you've asked them what they have on them. They're sitting outside a store. They're holding something that appears that they just purchased it. I think it's a reasonable inference to assume that they were trying to get his wallet and money. Beyond a reasonable doubt? I believe, based on the circumstantial evidence, yes. I mean, it's also a reasonable inference. I mean, I know we're getting a perhapsful far-field, but maybe not, that if you would have found a gun, they would have taken it. But you really can't charge him with trying to steal a gun they didn't have. It's not tough to say you're charging with stealing money you didn't have. And then you get to, you charge him with a wallet that they didn't know about and didn't take. Do you have a case, aside from the seven-circuit one, that comes close to this? No, Your Honor. Do you have any case in which somebody was convicted of robbing something that they didn't know about? I didn't ask for it. They didn't specify it, and they didn't know about it. I don't have a case, this is them. Moving on to the arguments raised by Mr. Goldtooth here. The motion for mistrial was properly denied. A curative instruction was given. It was a fleeting comment. And as was discussed, the jury is presumed to follow the instructions given. The defendant cites the bland case in his brief, and this is distinguishable from that case. In that case, the judge said the defendant was suspected murder and a child molester here in a case where the jury has already heard that the defendant possessed a weapon, that he was a gang member, that he had intimidated these victims and that they were scared to hear one fleeting comment that he had been booked previously is not something that cannot be cured by a curative instruction. On to the issue of self-serving. You know, it is pretty damaging in the reality of the courtroom, though, to say, yeah, he's but we've arrested him before. When you're talking about basically credibility assessments. Well, that he's been booked before is not as damaging, for instance, as he's been arrested before, or he, I mean, that he's been convicted before, excuse me, or that he has been convicted of certain types of crimes or anything like that. Even in the Marsh case, this court held where an attorney commented on the defendant's silence that that could be cured by a curative instruction, that the fact that there was substantial independent, credible evidence of guilt overwhelmed that comment. Okay. My turn to the rule one on six issue. Thank you. In that situation, the statements that the defendant sought to introduce were self-serving hearsay. Nothing about rule one, six trumps the hearsay rules. In the cases that I cited in my brief in addition to the Vallejo case, which was just from a few weeks ago, rule one, six applies when it is that when the complete statement is necessary to avoid a misleading impression. The statements that were admitted and the statement that the defendant sought to admit, there's no misleading occurring without that statement

. And then you get to, you charge him with a wallet that they didn't know about and didn't take. Do you have a case, aside from the seven-circuit one, that comes close to this? No, Your Honor. Do you have any case in which somebody was convicted of robbing something that they didn't know about? I didn't ask for it. They didn't specify it, and they didn't know about it. I don't have a case, this is them. Moving on to the arguments raised by Mr. Goldtooth here. The motion for mistrial was properly denied. A curative instruction was given. It was a fleeting comment. And as was discussed, the jury is presumed to follow the instructions given. The defendant cites the bland case in his brief, and this is distinguishable from that case. In that case, the judge said the defendant was suspected murder and a child molester here in a case where the jury has already heard that the defendant possessed a weapon, that he was a gang member, that he had intimidated these victims and that they were scared to hear one fleeting comment that he had been booked previously is not something that cannot be cured by a curative instruction. On to the issue of self-serving. You know, it is pretty damaging in the reality of the courtroom, though, to say, yeah, he's but we've arrested him before. When you're talking about basically credibility assessments. Well, that he's been booked before is not as damaging, for instance, as he's been arrested before, or he, I mean, that he's been convicted before, excuse me, or that he has been convicted of certain types of crimes or anything like that. Even in the Marsh case, this court held where an attorney commented on the defendant's silence that that could be cured by a curative instruction, that the fact that there was substantial independent, credible evidence of guilt overwhelmed that comment. Okay. My turn to the rule one on six issue. Thank you. In that situation, the statements that the defendant sought to introduce were self-serving hearsay. Nothing about rule one, six trumps the hearsay rules. In the cases that I cited in my brief in addition to the Vallejo case, which was just from a few weeks ago, rule one, six applies when it is that when the complete statement is necessary to avoid a misleading impression. The statements that were admitted and the statement that the defendant sought to admit, there's no misleading occurring without that statement. Their jury is not left with the impression having heard the statements from the detective. The jury is not left with an impression one way or another whether he got the cigarettes. If they were, I would agree that the statement that he said he didn't get anything would be necessary, but they're not left with that misleading impression at all. Furthermore, as the Court noted, this wasn't a written statement. This wasn't a recorded statement. And I'm not even sure that rule one, six would apply in that situation, but even assuming that it does, the self-serving hearsay nature of the statement that they sought to introduce was properly excluded. Okay. Any further questions? I would like to say something to you, the government's point here. This is going to be a little bit beyond the deal for innocence, but it's the discretion of the government to prosecute a crime of robbery of three dollars worth of tobacco. Now, one of we use that make that decision and you've come up here like a good told you to defend what the government did. And I think you've been a member of the VAR for almost 20 years. But if you were exercising your own discretion, which you were fighting against somebody who said that put them in the 90s, that's what it was. Is the question, would I have charged the case? Yes. Your Honor, I have not. You've not thought about it. I have not read all, I was not presented with every report and say in the shoes of the person who charged it. I think that it meets the elements of the crime of robbery and attempted robbery. I mean, to follow up, because I was troubled as well, it appeared to me that what was really going on here was that they thought these people had done something else quite terrible because there was noise about what one of them had blood on their hands, or there was something about, they thought that these were weapons in a murder. And so there's a real strong sense that this is all a standard for something else, which is not necessarily the way to proceed. Well, Your Honor, the victims in this case immediately after this happened went in and told the store that they didn't want to prosecute. No, I don't. I don't. I don't. I understand it is that that's what they said. I believe that they went in and told the store owner or the worker, the clerk, what had happened

. Their jury is not left with the impression having heard the statements from the detective. The jury is not left with an impression one way or another whether he got the cigarettes. If they were, I would agree that the statement that he said he didn't get anything would be necessary, but they're not left with that misleading impression at all. Furthermore, as the Court noted, this wasn't a written statement. This wasn't a recorded statement. And I'm not even sure that rule one, six would apply in that situation, but even assuming that it does, the self-serving hearsay nature of the statement that they sought to introduce was properly excluded. Okay. Any further questions? I would like to say something to you, the government's point here. This is going to be a little bit beyond the deal for innocence, but it's the discretion of the government to prosecute a crime of robbery of three dollars worth of tobacco. Now, one of we use that make that decision and you've come up here like a good told you to defend what the government did. And I think you've been a member of the VAR for almost 20 years. But if you were exercising your own discretion, which you were fighting against somebody who said that put them in the 90s, that's what it was. Is the question, would I have charged the case? Yes. Your Honor, I have not. You've not thought about it. I have not read all, I was not presented with every report and say in the shoes of the person who charged it. I think that it meets the elements of the crime of robbery and attempted robbery. I mean, to follow up, because I was troubled as well, it appeared to me that what was really going on here was that they thought these people had done something else quite terrible because there was noise about what one of them had blood on their hands, or there was something about, they thought that these were weapons in a murder. And so there's a real strong sense that this is all a standard for something else, which is not necessarily the way to proceed. Well, Your Honor, the victims in this case immediately after this happened went in and told the store that they didn't want to prosecute. No, I don't. I don't. I don't. I understand it is that that's what they said. I believe that they went in and told the store owner or the worker, the clerk, what had happened. Later, they saw these defendants with the police and they went over and said, these are the guys who robbed us earlier. I really stand that we don't want to press charges. Because they were scared. And the police officers testified that they were scared, that they appeared apprehensive that they kept looking behind them and feared retribution. So it's a while, it is true that these people are suspected of a murder, these weapons were suspected of being used in a murder occurring that same night. It is also true that two people were victimized by the actions of these defendants. They felt intimidated, they felt threatened, and they had their personal property removed from them. And so that is a fair charge under the statute prohibiting robbery. Thank you, counsel. Thank you. And we will give you three minutes cumulatively for rebuttal if you want to take it. I don't have any more questions. All right. Two issues in terms of their addressing the government's comments. One, during trial, it was unclear as to who had the bat or who had the night and who identified who had whatever. And that was not necessarily clear. And you throw in the fact that gauge Goldtooth received a mis-trial with regards to all of his cases does raise an issue as to, I guess, the sufficiency of the evidence. What does it jury? What does it jury chose that had to find who did it and who was the heir and the better? They did not, Your Honor. They were not necessarily told in that. I am the heir. Sure they have it. I mean, you didn't raise the decision. I didn't. And the only issue is when I have heard the Court talk about this, this news case, and I would like an opportunity at least to review that and actually apply, apply additional briefing with respect to that issue. Thank you, Your Honor

. Thank you. Very good. The case, just, argue will be submitted