Oral Argument Legal Case Summary

Oral Audio Transcript(Beta version)

. She was testifying and this was just another, I mean, district court didn't say that. But isn't this the type of case where we should let the district court decide and really be careful about abusive discretion? Well, the most substantive comment that the district court made about what happened was that the prejudice was significance. And the district court lamented that Ms. Gaskin didn't simply say she'd heard, he killed someone. The district court paused to say, she testified, I know he murdered someone. So that's that's most of what we have the district court saying. Now, I think in the typical case, some deference to the district courts rulings on mistrial motions is certainly due. But unfortunately, district courts can get it wrong. District courts may have an interest in moving a trial along. We do have a three factor test that takes account of the matters your honor has identified. So while it was one remark, I think that it was a very persistent and pronounced remark. Well, the third factor of that law, law test is a curative instruction you had to, right? I mean, you had a curative instruction immediately and then one right before the case went to the jury, right? There was a generic curative instruction when the case went to the jury about not considering arguments or strict in testimony. Right. And one very specific instruction about this one. The specific instruction came about 75 minutes after the testimony was given. The jury had actually been sent into recess and had lunch in the meantime. So that's a problem. That was to me. It was to me. It was curious. That helps me a great deal

. How does that help you? Well, those 75 minutes that the jury was sitting there without having been admonished at all, let this really become etched in granite in their minds. That's a metaphor used in the United States via a keen case. It just sat there. And if you look very closely at the record, you'll notice that during that 75 minutes, they went to lunch. They disperse, they had been instructed. Don't talk about the case. Don't talk to anyone. Doesn't that really hurt your argument, to say? I don't think so. I think the predominant significance of the delay is that it let that testimony sink into their heads and become harder to remove. All right. I think that's the issue. I mean, it's an abusive discretion standard. And you're asking us to find that no reasonable person could have come to the same conclusion that the district court did. Is that a very heavy burden under these facts under this apical law? I think it is a heavy burden that these facts satisfy your honor. I mean, if you look at the United States via gray case, the court in that on-bunk decision was also aware of the death prints that owed the district court. There was, in that case, the prosecutor had stated to the witness, you killed your wife, right? It wasn't even testimony from the witness. It was a statement by the prosecutor. Well, it was also stated by the prosecutor, too. And wasn't that part of it that the prosecution went far afield here. Prosecution only asked, what do you mean? And it seems to me if they said, what do you mean? It could have bolstered her credibility because she said, you know, it's dangerous for me to be testifying here. In my neighborhood, people don't snitch

. And that, you know, I could see here the prosecutor didn't really do something on tour. Doesn't that hurt? Certainly not, as on tour doesn't gray. I don't mean to incendiate that at all. You stated in your brief, you thought that the prosecutor did bid, or how do you come across that? How do you come to that conclusion? That was just reciting the district courts. Chastisement of the prosecutor for having asked an open-ended question. You'll find the judge chastising the prosecutor very severely in the record and telling her shortly before the jurors come back in that this case is tossed if something like this happens again. Again, you've got these statements by the district court that show it's disturbed. The district court's disturbed. It's so disturbed. It tells the jurors, you can't even talk about this. Well, I don't question at all the zealous effort of the district judge to cure the matter. But unfortunately, it was a task beyond his ability to achieve. The very notion, don't talk about this, is somewhat telling. It calls to mind an idiom the court used several years ago in the United States, the elite, where the court said, we won't blindly assume that jurors turn a blind eye to the elephant in the deliberations room. I can't emphasize enough how unique I feel this statement is. I think this statement is eons more prejudicial than the statement in gray or carny. A witness testifying she fears for her life because the defendant is going to kill her. No matter how conscientious a juror may be, that is going to ring in their ears inevitably. Well, it's interesting. I think that when we think of prejudice, we don't think of harmful. We think of prejudice meaning the emotion outweighs the evidence

. Here you had evidence of guilt, and that's one of the tests. But would you address the witness tampering? Because there it occurred to me, if we look at the statement and we look at the witness tampering, I think that's a close case in terms of the actual guilt. The fact that maybe that evidence swade in terms of witness tampering, I don't know. But isn't one of the tests that the weight of the evidence, the amount of evidence, and don't we have a situation here that really isn't that close? One of the tests certainly is the weight of the evidence. I do think the evidence here is weak. There is a lot of testimony of a vicious episode inside a home. What there is virtually no evidence of is how a theft of $100 from a few people at a dining room table could ever have an effect on interstate commerce. That's an element of the charge that was brought here. The defendants were charged not with robbery, but with interfering with interstate commerce by robbery. When it comes to that element, the evidence was we cement none existed, but at the very least it was weak. And as your Honor says it- It was very instructed that a minimal or potential, what was the instruction under the Hobbes Act? It was along the lines of the United States, the urban standard of minimal. Your Honor, we don't think there was proof here of a minimal effect on interstate commerce. I mean, it's an unusual case. The government talked about a robbery of a few people at a dining room table. Robbers took some money, took some cell phones, ordered everyone down into the basement, and then started rummaging around upstairs. But it's clear that the reason the robbers went to that house was because it was- there was a speak easy, and they thought there'd be a lot of money there. So they were there targeting a business. And haven't we in our case law talked about the fact that they've targeted interstate commerce, that that has the potential effect that that can be sufficient? I think that it would be a factor for the court's consideration if the robbery had been directed at the speak easy. And your Honor, respectfully, the evidence cannot support a conclusion that the defendants targeted the speak easy. It absolutely cannot. They took up many downstairs after the- They sent everyone downstairs so that people would be out of their way so they could rummage around the first floor for drugs

. The evidence is fairly uncon- differentiated in that regard. The speak easy was downstairs. That's right. So your Honor, in fact, at sentencing, the prosecutor stated that apparently this house was robbed on some supposition that there were drugs there. Well, that may be there was evidence that the defendants rummage through refrigerators and an expert testified that PCP is stored in refrigerators. And there was also testimony that the defendants kept yelling out, where's the wet? And there was expert testimony that wet is a slang term for PCP. Now- So if the government had tried the case on the premise that this was a robbery affecting interstate commerce because it was directed at a drug dealing operation, Judge Rendell, I think we'd have a much different situation. They did not prove a robbery directed at the speak easy. The robbery wasn't in the speak easy, which was downstairs. It wasn't of the speak easy. None of the speak easy's proceeds were taken. And it wasn't directed at the speak easy. But the paraphrase- The government's argument that I think they make, Mr. G- The Osmer can speak for himself. They argued that the interstate commerce that was affected by the robbery was some liquor bottles that may have been taken in the course of the robbery. And the fact that the woman who ran the speak easy testified that she discontinued the operation of the speak easy after this robbery. Now, are either one of those substantially enough interstate commerce to be affected? Well, I don't think you're going to be surprised if I say no. I don't believe they are. For several reasons. First of all, in this case, because the robbery was of individuals in a home and not a robbery of the speak easy, for the reasons I've just stated, we don't think it's effective. It's appropriate to even be looking at any theoretical effects

. There may have been on the alcohol sales. That's too attenuated. If this robbery had taken place outside a bar in Chestnut Hill, and the bar got a bad reputation because of it and went out of business, that would not be a Hobbes Act robbery. Not a street mugging in front of a bar that turned out to have consequences for the bar's business. Well, unless the person stopped, unless the person closed their shop, if they said, I don't need this aggravation, I'm moving to Florida and they close up shop. Well, what I'm suggesting is I don't think it would be enough if the robbery, which is the mugging of a pedestrian in front of the bar, even if it ended up having an effect on the bar. And I think that analogy is the same here. It doesn't matter what happened to Jeanette Catchmore's sales of alcohol because this robbery was not directed at her speakings and it was not a robbery of her business. No, you're saying it didn't affect. Well, I would also say that, or at least I would say that no rational trial effect could find beyond a reasonable doubt either of the things you mentioned, either that her business went down or that bottles were stolen. I don't think those things could be found beyond a reasonable doubt. More fundamentally, I think that there are relevance in the analysis because the robbery was not of the entity to which those things related. You know, another analogy might be a robbery. I prefer it. I'm just looking at Walker. We've referred cases where it's targeted. And it clearly was evidence here that it business was targeted. They said because it had a lot of money and it was sweet. All the money is in the basement. They clearly were targeting the revenues of the speakings. I mean, there is evidence

. Your Honor, I think it's the last sentence of what you said that's a step too far. There is the testimony there about how they thought there would be money in the house. I'm willing to grant you that that would support an inference. They thought there was some kind of enterprise going on in the house. But all of the other evidence is that the enterprise they thought was generating the money was drug dealing. They were not concerned about the speak easy. You won't find any statement of any defense. It helped you or hurt you because they were targeting drug dealing. It helped it. It helps us because that was not a theory ever presented to the jury. And it was here. There were no facts. It could be retried on that theory. There were no facts about drug dealing even in the record. Before the jury. Yeah, there are quite a few. I mean, there's quite an emphasis on the testimony of both Ricky Catchmore and Jeanette Catchmore that the men in the house were yelling, where's the wet? Where's the weed? And that they rummaged through refrigerators. All right. Would we have to overturn precedent? I mean, I think you're you have a good point in that this is really far removed from interesting comments. And yet we have language in USV Heywood. Any interference with or effect upon whether slight subtle or even potential

. We have that language in our case. Do we have to embank this because you have a slight subtle or potential. Maybe that's fulfill here, but maybe it shouldn't be. I don't think you have to unbunk it. I mean, yes, there's that language. It is subtle. If any any potential. Well, it's you know, I think as a matter of law, it's just. It's so low that anything can meet it. Well, I think we're heading in that direction. You know, I mean, look, any robbery involves a theft of currency, which is of course the medium of interstate commerce, right? So theoretically, every robbery affects interstate commerce. Some kind of line has to be drawn. And traditionally, the line has been seen robberies of individuals and robberies of businesses. Now, it didn't a six circuit draw a line in US versus Wang in 2000 and didn't our walker. Our recent decision in Walker sort of say that the third circuit was not going to adopt that line. I wouldn't I wouldn't read Walker as rejecting that line. I read Walker. He would extinguishing those cases. You would agree that Wang would be a good case for you if it was a third circuit decision. Absolutely. And I still think it's a good case for us

. I don't think Walker completely disavowed Wang. Walker makes a point of saying the robbery we're looking at is different from. And I'm quoting the home invasion robberies of the type at issue in Wang or here. So we have a home slash business invasion here. That's a way of looking at that. Certainly that's that's what we can argue about all day. I'm going to argue it wasn't a robbery of the business because it didn't enter the business. The robber's only interest in the basement was as a place to go stow away the people so they could search through elsewhere in the house. They were not robbering robbing the speak easy. Since it wasn't directed at the speak easy it's different from cases like Walker. You know not only did the court expressly distinguish home invasion robberies but it said what really made Walker easy is that it was a robbery of a drug dealer on the street selling drugs. That individual was engaged in interstate commerce at the time of the robbery. Are you going to address witness tampering or? I am going to address it. You want me to move on? I don't know how much that matters in terms of the overall scheme of things is sentencing or whatever. Well it means about a year to our client sentence and I do think it. Not as good as a mistrown. It actually think the issue is extraordinarily clear at your honor. Really extraordinary. The reason I haven't come to it until now is I think to brief slide out fairly well. The United States V. Bell case says that it's not witness tampering if it's solely motivated by a state proceeding and here that is the only possible conclusion from the record

. There was nothing contemplated or foreseeable from a. Nothing contemplated or foreseeable plus the speaker is affirmatively stating I'm talking about my preliminary and the municipal court. The state court proceeding. Thank you Your Honours. Thank you. Mr. Zazmer. Thank you Your Honours Mayor please the court on Robert Zazmer on behalf of the government. To be very frank I agree with Judge Randall's observation if it is an observation that the witness tampering issues present a challenge and issue in this case and I want to make sure to spend time on that and I respectfully disagree with my colleague that with regards to the briefs because we do have the foulard case that was decided by the Supreme Court after the briefing was concluded in this case so I want to make sure to leave some time to address that. Let me first if I may go through the couple issues that Mr. Dada here refer to that I myself do not find challenging. The first involves this unfortunate statement that Ms. Gaskin made during her testimony and saying that she knows for a fact that the Mr. Shavers is a killer. This wasn't you know I know for a fact that he's committed crimes. This was that he's done something so egregious that nobody is going to want him on the street. Oh absolutely and Judge Joiner very experienced district judge assessed the situation and gave an emphatic instruction to the jury to disregard it had them orally promised that they were not only not considerate but never mentioned it and not discuss it. What's the effect of the time period there was there was mention that it was 75 minutes later. I mean they bring up a point I mean the jurors let that sink in for a while and well they did go to lunch and they did disperse there obviously was no discussion could they have thought about it individually of course but then they come back and they get this very clear instruction. My problem with the defense argument here and I think members of this court have have probably heard this rant from me before is I'm critical of of arguments that take a dim view of our jurors and treat jurors as anything other than what they are which is very intelligent qualified adult citizens. Well by the same token if the judge does not say anything immediately and I'll never forget my first my first trial council tried to pull something and the minute it was said I said to that jury you are not to pay any attention to that that has no bearing whatsoever and you know so but if a judge doesn't do that right away well but when I then you know what do they go out in their eyes are bulging like oh my god this poor woman thinks she's going to get killed you know what what about us well sure that that's preferable but again my suggestion is that when you have intelligent people who are loyal jurors who are told them fatically by a judge whether it's 75 minutes later or even a day later ignore it don't consider it you may not discuss it people follow judges instructions that's a holding of this court and the supreme court and so sure it would have been preferable to say it immediately but I don't think it's watered down in any way and then we can assume that the jurors did not follow this instruction the other thing to consider here is that again and looking at the precedent of this court it's one statement isolated it's never repeated it's a case in which there's an overwhelming amount of evidence with regard to mr. shavers but more importantly with that in karni and gray were those single statements well in karni for example the I believe it was the court held that the evidence in that case was not overwhelming and there you had a much more specific allegation and I'm this is what I'm getting at in terms of misgaskin's credibility you had a specific allegation that that defendant tried to murder me and my children so you have a much more substantive allegation grave for sure you have prosecutor on this conduct which is a whole different ball of wax in which the prosecutor says uh denier murder your wife uh we don't have that here but I want to highlight gaskin's credibility again the the presumption here is that this jury of of gullible people is sitting there they hear one witness say I know he's a killer and at that moment they lose all rationality they go back in the jury room and they're couldn't get convicted of anything whether he's innocent or not now of course this jury doesn't even convict mr. shavers of everything he actually is acquitted of counts in addition to the counts of conviction but with regard to misgaskin her she is impeached from one end of the courtroom to the other um throughout this trial and in fact if you look at the closing arguments page 1887 of the appendix is mr. shavers closing his counsel says this is a witness who lied admitted she lied lied on several occasions and the next page says with regard to misgaskin and others who are these witnesses they are criminals they are drug dealers they are drug users they lie on the witness stand that's who they are uh so we're supposed to believe that this witness who did have the vulnerabilities that were identified there that this witness says one thing about the killer the judge emphatically tells the jury to ignore it and we're to believe that the jury has nevertheless lost all reason we don't accept that based on the court's press. The one that was in the tampering conviction because quite frankly mr. shavers i can't find a way that that was that there was an official proceeding as we have construed official proceeding that should have been in the contemplation could have been in the contemplation at that time and I just I have great difficulty with the jury's finding guilt on that the evidence was underwhelming if not nonexistent. Let me address that and this this as I said is a little complex if you'd indulge me to go through this step by step the most interesting thing at the outset is that this wasn't argued to the jury. Here this is basically a sufficiency question and here we have defense counsel saying there was insufficient evidence for this jury to find that it was a federal proceeding they didn't even have the temerity to argue that to the jury at trial which I think is relevant they actually did argue federal jurisdiction with regard to the Hobbes Act which is a separate issue but here they did not think it was worthy enough to go to the 12 people and then they come to this court and say there was no evidence whatsoever that's point number one but point number two it's and very important to walk through the law. Just just want to stop you that doesn't stop them from coming and arguing. Absolutely not. I'm just saying it reflects the strength of the argument but of course that's true but in working through the law here the government has to show that there was an official proceeding that there was an effort to obstruct and that there has to be a particular official proceeding that's what Arthur Anderson says but none of this has anything to do with the defendants state of mind because the statute explicitly says first of all that the official proceeding doesn't have to be pending at the time of the obstruction and second of all says that there's no requirement with regard to intent with regard to the federal nature of the proceeding. So in other words what the government has to show is that this obstruction was directed at a particular federal proceeding but does not have to show that the defendant was aware of that new it contemplated it predicted it and it was no federal proceeding. There wasn't and again but what was the federal proceeding? You have to have an underlying federal proceeding at least. Wait the federal proceeding here is the pro-post office? No no no not at all the federal proceeding that's in the future is the prosecution of this robbery. The evidence in the tapes was having to do with their hearing on the 19th or the 18th and the Philadelphia court so there was no time to tamper with any. There was no in top of what you had turned out to say there was no anticipation on the part of the federal government that there was even going to be a proceed. Well there I just disagree on it. The evidence that was submitted was that with the certainly the investigation began with the investigation of the postal robbery but immediately was relevant to the investigation of this matter as well. The search was conducted of Miss Guest House or Guest House I every pronounce that. Within about 10 days or nine days after the robbery and it was during that search that they found evidence in her house from these people of this robbery of the Speakeasy robbery. At the same time those were the cell phones. That's right and they didn't learn about the cell phones too much later but at the same time the same federal investigators then requested the phone calls in the prison and immediately heard all sorts of evidence of the Speakeasy robbery and this is where Fowler becomes important

. shavers but more importantly with that in karni and gray were those single statements well in karni for example the I believe it was the court held that the evidence in that case was not overwhelming and there you had a much more specific allegation and I'm this is what I'm getting at in terms of misgaskin's credibility you had a specific allegation that that defendant tried to murder me and my children so you have a much more substantive allegation grave for sure you have prosecutor on this conduct which is a whole different ball of wax in which the prosecutor says uh denier murder your wife uh we don't have that here but I want to highlight gaskin's credibility again the the presumption here is that this jury of of gullible people is sitting there they hear one witness say I know he's a killer and at that moment they lose all rationality they go back in the jury room and they're couldn't get convicted of anything whether he's innocent or not now of course this jury doesn't even convict mr. shavers of everything he actually is acquitted of counts in addition to the counts of conviction but with regard to misgaskin her she is impeached from one end of the courtroom to the other um throughout this trial and in fact if you look at the closing arguments page 1887 of the appendix is mr. shavers closing his counsel says this is a witness who lied admitted she lied lied on several occasions and the next page says with regard to misgaskin and others who are these witnesses they are criminals they are drug dealers they are drug users they lie on the witness stand that's who they are uh so we're supposed to believe that this witness who did have the vulnerabilities that were identified there that this witness says one thing about the killer the judge emphatically tells the jury to ignore it and we're to believe that the jury has nevertheless lost all reason we don't accept that based on the court's press. The one that was in the tampering conviction because quite frankly mr. shavers i can't find a way that that was that there was an official proceeding as we have construed official proceeding that should have been in the contemplation could have been in the contemplation at that time and I just I have great difficulty with the jury's finding guilt on that the evidence was underwhelming if not nonexistent. Let me address that and this this as I said is a little complex if you'd indulge me to go through this step by step the most interesting thing at the outset is that this wasn't argued to the jury. Here this is basically a sufficiency question and here we have defense counsel saying there was insufficient evidence for this jury to find that it was a federal proceeding they didn't even have the temerity to argue that to the jury at trial which I think is relevant they actually did argue federal jurisdiction with regard to the Hobbes Act which is a separate issue but here they did not think it was worthy enough to go to the 12 people and then they come to this court and say there was no evidence whatsoever that's point number one but point number two it's and very important to walk through the law. Just just want to stop you that doesn't stop them from coming and arguing. Absolutely not. I'm just saying it reflects the strength of the argument but of course that's true but in working through the law here the government has to show that there was an official proceeding that there was an effort to obstruct and that there has to be a particular official proceeding that's what Arthur Anderson says but none of this has anything to do with the defendants state of mind because the statute explicitly says first of all that the official proceeding doesn't have to be pending at the time of the obstruction and second of all says that there's no requirement with regard to intent with regard to the federal nature of the proceeding. So in other words what the government has to show is that this obstruction was directed at a particular federal proceeding but does not have to show that the defendant was aware of that new it contemplated it predicted it and it was no federal proceeding. There wasn't and again but what was the federal proceeding? You have to have an underlying federal proceeding at least. Wait the federal proceeding here is the pro-post office? No no no not at all the federal proceeding that's in the future is the prosecution of this robbery. The evidence in the tapes was having to do with their hearing on the 19th or the 18th and the Philadelphia court so there was no time to tamper with any. There was no in top of what you had turned out to say there was no anticipation on the part of the federal government that there was even going to be a proceed. Well there I just disagree on it. The evidence that was submitted was that with the certainly the investigation began with the investigation of the postal robbery but immediately was relevant to the investigation of this matter as well. The search was conducted of Miss Guest House or Guest House I every pronounce that. Within about 10 days or nine days after the robbery and it was during that search that they found evidence in her house from these people of this robbery of the Speakeasy robbery. At the same time those were the cell phones. That's right and they didn't learn about the cell phones too much later but at the same time the same federal investigators then requested the phone calls in the prison and immediately heard all sorts of evidence of the Speakeasy robbery and this is where Fowler becomes important. What the Supreme Court and Fowler resolved is what does the link need to be given that there doesn't have to be again any anticipation or knowledge by the defendant but the government does have to show that there's a link to an official proceeding even if the official proceeding isn't an existence yet and what Fowler says is a reasonable likelihood. There have been different standards from different courts over the years and the Supreme Court says you need to show that there was a reasonable likelihood that there would be a federal proceeding and that's where this case lies. I would submit that given that these federal investigators were working in this case given what the jury knew a jury reasonably could find a reasonable likelihood. Again we're dealing with the sufficiency of the evidence standard here. Was there sufficient evidence that a reasonable jury could rely on? Now interestingly this jury was instructed to make a finding well beyond this reasonable likelihood standard and that's probably why none of the defendants have argued any infirmity in the jury instructions. The jury instruction simply told the jury and it's at page 2024. There has to be a federal proceeding and the proceeding has to be pending or likely to be instituted. So the judge was at likelihood. Now the Supreme Court tells us it's a reasonable likelihood which the Supreme Court says in Fowler is less than a proofy on a reasonable doubt. Mr. Zanzim, let's go to the interstate commerce question in the Hobbes Act violation. This seems to me that this event seems to me to be a rather run of the mill state law robbery that took place and if this robbery is covered by the Hobbes Act what would not be covered? What kind of robbery would not be covered? Well there are plenty of robberies that are not covered by the Hobbes. Tell me one. Let's stick up robbery on the street. One person walks up to another, points a gun at him and takes his money. How is that? I mean if the person you stuck up on the street was a drug dealer that would be covered under Walker. Correct. It seems to me that here the only real difference was instead of being on the street it's inside someone's home. Well that's why I disagree and I strongly disagree with the characterization of the evidence that we heard from my friend Mr. Lange. Tell us how we do this

. What the Supreme Court and Fowler resolved is what does the link need to be given that there doesn't have to be again any anticipation or knowledge by the defendant but the government does have to show that there's a link to an official proceeding even if the official proceeding isn't an existence yet and what Fowler says is a reasonable likelihood. There have been different standards from different courts over the years and the Supreme Court says you need to show that there was a reasonable likelihood that there would be a federal proceeding and that's where this case lies. I would submit that given that these federal investigators were working in this case given what the jury knew a jury reasonably could find a reasonable likelihood. Again we're dealing with the sufficiency of the evidence standard here. Was there sufficient evidence that a reasonable jury could rely on? Now interestingly this jury was instructed to make a finding well beyond this reasonable likelihood standard and that's probably why none of the defendants have argued any infirmity in the jury instructions. The jury instruction simply told the jury and it's at page 2024. There has to be a federal proceeding and the proceeding has to be pending or likely to be instituted. So the judge was at likelihood. Now the Supreme Court tells us it's a reasonable likelihood which the Supreme Court says in Fowler is less than a proofy on a reasonable doubt. Mr. Zanzim, let's go to the interstate commerce question in the Hobbes Act violation. This seems to me that this event seems to me to be a rather run of the mill state law robbery that took place and if this robbery is covered by the Hobbes Act what would not be covered? What kind of robbery would not be covered? Well there are plenty of robberies that are not covered by the Hobbes. Tell me one. Let's stick up robbery on the street. One person walks up to another, points a gun at him and takes his money. How is that? I mean if the person you stuck up on the street was a drug dealer that would be covered under Walker. Correct. It seems to me that here the only real difference was instead of being on the street it's inside someone's home. Well that's why I disagree and I strongly disagree with the characterization of the evidence that we heard from my friend Mr. Lange. Tell us how we do this. Well we heard a jury argument that really just omitted the key facts. What makes this the Hobbes Act part not difficult I said that the the witness tampering I acknowledge is we need to address based on totally different standards. But first of all you have the robbery here of a business. The question is again sufficiency of the evidence. Is there evidence in the record on which a reasonable jury could rely? And what we have first and foremost, I disagree your honor. How was a business robbery? Well first of all they even questioned whether it was a business. They described this as some kind of social dinner party. So we start. What was evidence from which they could say? If I may the for Jeanette Catchmore is the owner of the of the speed DC. She testifies page 1156 of the record. This Catchmore was there a time in the past that you operated a business at your house. Yes I did. What kind of business did you operate? Well I used to sell beer alcoholic beverages. But she wasn't doing that when the robbery occurred. She was upstairs asleep. Well let me get to that your honor. When they come in the house the evidence is from those women who heard the planning for this. That this fellow con who was in on the planning said this place has a lot of money. The money's in the basement. Let's go rob it again. A jury can infer from that

. Well we heard a jury argument that really just omitted the key facts. What makes this the Hobbes Act part not difficult I said that the the witness tampering I acknowledge is we need to address based on totally different standards. But first of all you have the robbery here of a business. The question is again sufficiency of the evidence. Is there evidence in the record on which a reasonable jury could rely? And what we have first and foremost, I disagree your honor. How was a business robbery? Well first of all they even questioned whether it was a business. They described this as some kind of social dinner party. So we start. What was evidence from which they could say? If I may the for Jeanette Catchmore is the owner of the of the speed DC. She testifies page 1156 of the record. This Catchmore was there a time in the past that you operated a business at your house. Yes I did. What kind of business did you operate? Well I used to sell beer alcoholic beverages. But she wasn't doing that when the robbery occurred. She was upstairs asleep. Well let me get to that your honor. When they come in the house the evidence is from those women who heard the planning for this. That this fellow con who was in on the planning said this place has a lot of money. The money's in the basement. Let's go rob it again. A jury can infer from that. This is a robbery targeting the business. The speak easy. And finally and most importantly the Miss Catchmore going back to Jeanette Catchmore page 1167. She says that when she was brought downstairs a robber took her to the basement and kept asking her where's the money. Now if that's not evidence that a jury can rely on to find that this is a targeting the money of the speak easy. And I don't know where our case log gets this targeting. I mean the second circuit in Wilkerson talks about targeting. We talk about targeting but the law is an effect on interstate commerce. I mean you can say there's an individual walking down the street and you think he's a big money manager and he has diamonds on his person and therefore you want to rob him and he'll stop his diamond business. But you stop him and he has his money and turns out he's maybe the wrong person or maybe it's the right person but it doesn't have any effect on interstate commerce. It's the fact that they've targeted something that could have an effect. Do we read that into the the Commerce Coast jurisprudence? Well yes this court has the. Has a Supreme Court which case? Well urban the Whitmer. The urban. Urban's a different case. Well it isn't that they're all different cases but what the cases have uniformly said and there are at least 10 cases going point not one where we said that a robbery of a home that also may have served as a speak easy could constitute interstate commerce. No I cannot identify a prior speak easy. There's not any even across the country. Your honor but what I can say is that this court has very clearly said and I you know reasonable Americans can debate whether this is an appropriate division of federal and state authority but what this court has said is that this is the maximum exercise of Congress's power under the Commerce Act that any robbery or extortion that has even a potential effect on interstate commerce is sufficient to bring it within the scope of the Hobbit. Now Mr. Zaz, just stop here

. This is a robbery targeting the business. The speak easy. And finally and most importantly the Miss Catchmore going back to Jeanette Catchmore page 1167. She says that when she was brought downstairs a robber took her to the basement and kept asking her where's the money. Now if that's not evidence that a jury can rely on to find that this is a targeting the money of the speak easy. And I don't know where our case log gets this targeting. I mean the second circuit in Wilkerson talks about targeting. We talk about targeting but the law is an effect on interstate commerce. I mean you can say there's an individual walking down the street and you think he's a big money manager and he has diamonds on his person and therefore you want to rob him and he'll stop his diamond business. But you stop him and he has his money and turns out he's maybe the wrong person or maybe it's the right person but it doesn't have any effect on interstate commerce. It's the fact that they've targeted something that could have an effect. Do we read that into the the Commerce Coast jurisprudence? Well yes this court has the. Has a Supreme Court which case? Well urban the Whitmer. The urban. Urban's a different case. Well it isn't that they're all different cases but what the cases have uniformly said and there are at least 10 cases going point not one where we said that a robbery of a home that also may have served as a speak easy could constitute interstate commerce. No I cannot identify a prior speak easy. There's not any even across the country. Your honor but what I can say is that this court has very clearly said and I you know reasonable Americans can debate whether this is an appropriate division of federal and state authority but what this court has said is that this is the maximum exercise of Congress's power under the Commerce Act that any robbery or extortion that has even a potential effect on interstate commerce is sufficient to bring it within the scope of the Hobbit. Now Mr. Zaz, just stop here. I want to stop you just right there. Tell me what the interstate commerce is. The interstate commerce is essentially running a bar. It's just an illegal bar. It's an unlicensed bar. That's why I this case your honor does not strike me as that difficult. This is what it fits you have on the bar. Well it closed down is the easiest answer. This is what evidence the record that money or property was taken from Catchmore right? The actual owners of the bar. That's correct. But again in terms of the effect on the business, the reason this isn't a difficult case I submit is that this is a robbery in the premises of the business. And then Ms. Catchmore is asked this is page 1175. Did you continue to operate this business after this occurred? She said no. The question was at all and she said no I got scared then. You know that was enough. Now again this maybe two parties could argue this evidence but this is evidence that a reasonable jury can rely on. The fact that it's closed your honor which we don't think is totally clear on the record. But even if the bar is closed and the last customers are finishing their card game before heading out the door. That doesn't mean that this doesn't have an effect on their state commerce. If you just take away the illegal nature of the business, if you have a restaurant that has stopped serving and the last patrons are there and the arm gunman come through the door and terrorize everyone to the point that the business closes

. I want to stop you just right there. Tell me what the interstate commerce is. The interstate commerce is essentially running a bar. It's just an illegal bar. It's an unlicensed bar. That's why I this case your honor does not strike me as that difficult. This is what it fits you have on the bar. Well it closed down is the easiest answer. This is what evidence the record that money or property was taken from Catchmore right? The actual owners of the bar. That's correct. But again in terms of the effect on the business, the reason this isn't a difficult case I submit is that this is a robbery in the premises of the business. And then Ms. Catchmore is asked this is page 1175. Did you continue to operate this business after this occurred? She said no. The question was at all and she said no I got scared then. You know that was enough. Now again this maybe two parties could argue this evidence but this is evidence that a reasonable jury can rely on. The fact that it's closed your honor which we don't think is totally clear on the record. But even if the bar is closed and the last customers are finishing their card game before heading out the door. That doesn't mean that this doesn't have an effect on their state commerce. If you just take away the illegal nature of the business, if you have a restaurant that has stopped serving and the last patrons are there and the arm gunman come through the door and terrorize everyone to the point that the business closes. Obviously that's an effect on their state. Mr. Zaz, for what if the record showed that they went there because they know there was a big card game going on. I know there was a card game going on every so many nights and that was one of the nights. Would that be sufficient? Probably not. It's a harder question. Why not? Why would the card game differ from the Speakies? Well if the card game were one of the things that the Speakies offered in order to entice customers. This is a big card game. Ms. Place was known to have a big card game every Wednesday night and they knew there was a lot of money on the table when that card game and that's why they went there. People come to go and they went there. I would say the reason I would at least hesitate before approving that case is that we don't have a business engaged in their state commerce which is what are the cases tend to focus on how does that how is that differ from a Speakies? Because in a Speakies, as I said, is a bar. It's catch more is going to a supplier. She's buying beer and wine and cognac and other products sold in interstate commerce. She's bringing them back to her bar. She's selling them at a markup at $2 a beer, $4 a shot. She is a bar. What if Ms. Catchmore was cutting the proceeds at the card game? The house got $10 a hand. Well then if we're starting to turn the house into a casino. I got to a point I'm getting

. Obviously that's an effect on their state. Mr. Zaz, for what if the record showed that they went there because they know there was a big card game going on. I know there was a card game going on every so many nights and that was one of the nights. Would that be sufficient? Probably not. It's a harder question. Why not? Why would the card game differ from the Speakies? Well if the card game were one of the things that the Speakies offered in order to entice customers. This is a big card game. Ms. Place was known to have a big card game every Wednesday night and they knew there was a lot of money on the table when that card game and that's why they went there. People come to go and they went there. I would say the reason I would at least hesitate before approving that case is that we don't have a business engaged in their state commerce which is what are the cases tend to focus on how does that how is that differ from a Speakies? Because in a Speakies, as I said, is a bar. It's catch more is going to a supplier. She's buying beer and wine and cognac and other products sold in interstate commerce. She's bringing them back to her bar. She's selling them at a markup at $2 a beer, $4 a shot. She is a bar. What if Ms. Catchmore was cutting the proceeds at the card game? The house got $10 a hand. Well then if we're starting to turn the house into a casino. I got to a point I'm getting. Then yes, then I would say that at some point we do get to a business that affects interstate commerce because this would be an instance of a business that certainly went aggregated. It does affect interstate commerce. The question becomes. The question for us to answer here is does the commerce under the commerce clause have the ability to regulate Speakies and card games? Well I don't know as to card games because we're not we did not get into card games. Well we didn't present this case that way. Let me enjoy it to the first. Is the Congress have the power under the commerce clause to regulate the operation of a private home that is being used as a Speakies? And my answer to that is yes. That's the question I prefer to focus on and that is that this is a bar. This is an establishment serving alcoholic beverages. If you look at the distance. It comes from out of state and what else? You were saying what how is there next? Well that was the next as we showed just like in Hayward and it's the exact same thing. If you look at the testimony of the customers that's sort of interesting. They weren't going the way the defense council wanted them to go in saying that this was come kind of social gathering sort of dinner at aid in which people happened to pay a couple dollars for their alcohol. When Alberto Vasquez was one of the customers and he was asking what is this? Page 961. He says the place people would go after the time inside the bars that closed to two o'clock. It's known on the streets as a Speakies. It's a business. Same thing with Brian Anderson. Page 871. It was set up like a bar. 899

. Then yes, then I would say that at some point we do get to a business that affects interstate commerce because this would be an instance of a business that certainly went aggregated. It does affect interstate commerce. The question becomes. The question for us to answer here is does the commerce under the commerce clause have the ability to regulate Speakies and card games? Well I don't know as to card games because we're not we did not get into card games. Well we didn't present this case that way. Let me enjoy it to the first. Is the Congress have the power under the commerce clause to regulate the operation of a private home that is being used as a Speakies? And my answer to that is yes. That's the question I prefer to focus on and that is that this is a bar. This is an establishment serving alcoholic beverages. If you look at the distance. It comes from out of state and what else? You were saying what how is there next? Well that was the next as we showed just like in Hayward and it's the exact same thing. If you look at the testimony of the customers that's sort of interesting. They weren't going the way the defense council wanted them to go in saying that this was come kind of social gathering sort of dinner at aid in which people happened to pay a couple dollars for their alcohol. When Alberto Vasquez was one of the customers and he was asking what is this? Page 961. He says the place people would go after the time inside the bars that closed to two o'clock. It's known on the streets as a Speakies. It's a business. Same thing with Brian Anderson. Page 871. It was set up like a bar. 899. He says when I got there I thought it wasn't Speakies. This is a known business establishment in the city of Philadelphia. The only thing different about it from the bar down the street is it's illegal and it's serving a market of people who want to continue to enjoy alcoholic beverages after two in the morning when the bars closed. So that's why I suggest this is not the challenging Wang and cases like that which do take us to that outer edge. We're not there. Does the fact that the evidence of interstate commerce is a close question? Does that impact on the gas, does the gas, does the gas, does the statement have an impact on that question as to the weight of the evidence of that particular facet of the Hobbes Act? Theoretically it could but again I don't think the gas and statement being a single isolated statement really even needs to concern us about the evidence but with regards to the Hobbes Act robbery honor with respect I don't believe it's a close question. When you have a witness testify I operated a big deal with you on the robbery. Okay so the witness standpoint my point was directed more to the second or third element of the Hobbes Act violation here that it had to affect interstate commerce. Wait and that's what I'm trying to answer as well Your Honor I don't believe that that element is a close question. Okay. The under the sufficiency standard or even under what's before the jury when they hear the owner of the business say I ran a business I profited from the business that's something I haven't mentioned she says she took some of the proceeds to pay for her children's education so she's selling it a profit and I shut down the business as a result of this this isn't one of those tough cases I fully acknowledge I respect what Judge Pollock wrote in the Walker case that we take very seriously about the need for federal prosecutors to be careful in what cases they prosecute given the expense of the Hobbes Act we recognize all of that what I respectfully suggest is this isn't a tough one this is a business and the only difference is it doesn't have a license if you didn't have that statement from her that she shut down if she had continued to operate it would you have the same well we we suggested other things with my limited time I wanted to focus on that but certainly the jury can infer that all those dollar bills dozens of them that were on the robbers when they were caught within minutes were proceeds of the business and that would satisfy Hayward the two bottles that some move from the basement to the first floor when they were seen by Ricky catch more that could satisfy Hayward but this is a much stronger case in Hayward and that's why I prefer to focus on the fact that the business closed all right thank you thank you very much for a little later we're bottle thank you Your Honors I just like to highlight first of all that mr's Ausmer agreed that no proceeds were stolen from the bar during this robbery and I think that's a very important fact and judge rend out that's that's at the heart of how we're dealing with that diminimous language in all of our cases urban and the many important authorities before it the fact is that the robbery was of a business so we know that when there's a robbery of a business a diminimous impact is enough this court has never to my knowledge an appresadential decision upheld a Hobbes Act prosecution where the robbery was of an individual okay I mean the plumbers may have been individual contractors and urban but they were robbed in their capacity as a sole proprietor of a plumbing business I don't think there's a precedent from this court holding that and the cases we've cited in our brief from weighing to parada to Madison all show robberies of individuals where those individuals have a much closer connection to commerce then do Alberto Vasquez and Brian Anderson and the other people who say they have money stolen from them so you're saying if someone is in let's say someone is in a store and a shopper and someone comes in and robs them and then the store owner decides to curtail their business hours because that's really what happened here and individuals were robbed and then the store owner who was not robbed basically decides to curtail a business that that's like another leap if you will right because this was essentially a robbery of an individual what about the fact that the business was clearly the target but you but you're on or I disagree with you I don't think the evidence can even be found to show that the speak easy was the target I think the evidence is beyond dispute that if there was an enterprise that was a target it was a PCP dealing operation that was separate and apart from the speak easy now I'd like to refer you know the government has gone from one theory to another several weeks before trial they filed a second superseding indictment to try to prosecute on the theory that the defendant's attempted to rob controlled substances and therefore it was a Hobbes act robbery judge joiner precluded evidence on that theory due to a discovery violation so that theory did not go to the jury it would presumably be open to the prosecution on remand we never heard from the prosecution the district court that that the defendant stole bottles this is idea this is at one point where somebody's seen holding bottles that was never argued to the jury it's something that's come up on appeal now that the government has realized their evidence was not strong at all well that was testified to right that there was testimony simply that at one point from Ricky catchmore he saw one of them and holding two bottles but there's no evidence that the bottles were actually taken out I guess or moved anywhere yeah this is speak easy have to be the target to affect interstate comments well it did on the theory the government tried this case on yeah I know that but does it have to have been the target even if we find it it wasn't the target if it affected interstate commerce isn't that enough if it because it's it's robbery what's being penalized here is the robbery right well that's just that you're on every robbery in some abstract sense affects interstate well that's what some of our cases and get very close to say well I think ultimately and Walker included which is a very thoughtful decision the court's been very sensitive but there has to be some kind of line it is pretty far out there but there is a line and the best proxy for it is whether the robbery is of an individual so I think that you know where you have it as a tenuated relationship with the speak easy as here no it doesn't matter if the speak easy was targeted judgment else so I just was uh I think you're right that the jurors would perhaps have been frightened for their own safety on hearing it's from Mark from a witness and and just I know mr. Zousmer doesn't like people insulting jurors intelligence but frankly I think that very upstanding citizens very intelligent citizens would have a very hard time putting them out of their head this out of their heads thank you thank you thank you mr. Hicks I don't know whether you were before me when I was a district court judge long ago I was your honor and cases like this bring back those thoughts well this this particular case is brought with a number of problems both pre-trial and of course during trial and I know that this court has discussed a great length of Hobbes Act issue I want to dovetail that issue with the 404b and 403 evidence that was admitted at the time of trial on the postal robbery underlying this entire investigation was this notion that somehow a group of individuals at Ebony Jist's house were also involved in this postal robbery not once tried the shred of evidence connected my client nor the code of offense to this postal robbery but there was a tremendous amount of any window including the direct evidence that in fact the pre-trial overwhelming and prejudicial evidence admitted by the testimony of Kathleen Grady who testified as the postal inspector then in fact they secured a search warrant for that house and then in doing so they did it based on information that they had received now the government argues in its appeal in its response to my brief that in fact well this evidence demonstrated a federal interest in the underlying investigation and that's where I'm concerned we have a case that is by razor man edge on the Hobbes Act issue presented the Jist's injury presented with this backdrop this underlying notion that there is a postal robbery looming out there somehow connecting our clients to this when there's not one shred of evidence of that and in fact even if that had been the motivation for the underlying federal investigation that evidence certainly should never have been admitted a trial there was a motion in lemonade to exclude that evidence the government sought to introduce it the government in its in its brief and by the way if I could reserve just a moment of time to respond to the government on this but the government argues in its brief that well it's not really 404b because we never really connected it to any of the name defendants so there really aren't unchanged crimes a problem is that doesn't escape the 403 analysis here the 403 analysis is significant because you've got an underlying case of allegedly a postal robbery not connected in any clear evidentiary way but a clear inference drawn by the jury that the same group of individuals where there had been a discussion about post incident with my client Jermal Lewis about what had occurred that night intertwined with this postal robbery what specific evidence was objected to before the district court it was objected I think throughout we had a motion in lemonade was objected pretrial and it was objected I believe at the time of trial um the government argues that that you're evaluated on plain error but even on the plain error analysis this is clearly beyond the realm of what I believe to be the court's gatekeeping function on the issue of 403 and the reason why I think it's important in this particular case is because as I stated before the the evidence on the Hobbes act was so minimal and so tenuous and I agree with with my co-council that in fact a line of demarcation should be drawn in this case it this is precisely the case to draw and limit the excretion extent of federal power into the commerce clause but you're saying they hear about something else that has to do with federal government federal so they put two and two together absolutely I I agree that when mr. Zosmer says the juries are very intelligent I absolutely agree with that and I think that under the circumstances in this case when when you don't have strong federal evidence or federal connection in this case and in fact you have the jury grappling with that coming back with a question on federal jurisdiction which is what they do while they're deliberating when you have that in conjunction with this what I believe to be clearly unduly prejudicial information about the backdrop of a postal investigation it undermines my question do you have a I do have an issue and I want to argue that Brian Anderson this is this is also a very important issue and I want to respond to and anticipate the government's response on a harmless error because I think it's not a harmless error issue here's the question with Brian Anderson Brian Anderson makes no identification of my client the incident occurs at night as you've heard and you've read the record he has 20 seconds to have seen my client allegedly the witness he had personally allegedly identifies as my client according to his testimony but the assailant 22nds who have viewed him that's it three and a half years later he's viewed he's shown a photo array and does not make an identification now this is squarely within the United States versus a manual because in a manual as the court remembers there are two bank tellers outside the courtroom the defendant is brought in shackles to the courtroom no prior identification in fact same scenario neither witness identified in the post-incident confrontation the photo array the defendant in that case however there is a in court identification following this out of court unduly prejudicial out of court identification unduly suggested out of court identification with the defendant being brought in shackles it's no different here the government seems to argue in a very first of all it doesn't argue a manual with respect to my client at all if you look at their response they argue a manual with respect to the show up issues raised by co-council and whether or not the show up identification was legitimate but when it comes to my argument on Brian Anderson they don't argue a manual in fact they skirt the issue a manual is direct now in point in this case what we have was we had a bifurcated motion to suppress it began in December it was bifurcated for scheduling until June we knew on that June date that that motion was not going to go forward we knew that yet the government did not cancel the bring down they had brought in mr. Anderson from out of state he's brought to the FDC he's then transported with the same group of inmates that include my client who had never ever been identified by mr. Anderson before so he's brought over the testimony was this become this becomes uh I become aware of this because I receive a 302 from the prosecutor indicating that in fact oh by the way he was seen in the marshals holding cell and he was standing and talking with the other two co-defendants who had been previously mr. white mr. shavers but previously been identified on seeing by this witness. The government says that was all inadvertent. You're on it actually actually it doesn't matter because Emmanuel doesn't say that the confrontation outside the courtroom was anything but an inadvertent the marshals brought Emmanuel into the courtroom and there was no evidence of a setup that the prosecution tried to arrange this post-incident out of court identification so I don't think it's well over here and I think it's interesting that the government would add this bad faith kind of issue as if it somehow affects the court's decision on whether or not it's under the prejudicial it does not this was a completely unduly suggestive posting to the identification three and a half years later after he'd all I'm sorry Judge I'm so sorry although if it's harmless I mean we do have evidence here we have phone conversations with Lewis suggesting his participation we have everything just in shuranda gaskins testimony as to his statements we have shuranda gaskins testimony about the meeting where they all learned about the speak easy and prepared to rob it um I mean we have evidence here that he was involved there is let me respond and I respond to that precise argument in my brief I give you 60 seconds thank you that in response yeah give 60 seconds now right now yeah very quickly it's not harmless error I agree with mr. zazberg that Ebony just was cross again in a great length she was not a credible witness she admitted to perjury before the grand jury that's number one shuranda gaskins was a jilted ex girlfriend essentially or shuranda gaskins was the one perjury Ebony gist was a jilted ex girlfriend so you had two witnesses that were under mind their credibility was under mind third you have one witness Alberto Vasquez who identifies my client and is absolutely certain without a reason without any doubt in his mind that the birthmark on my client's face was the identifying feature despite a generalized description until cross-addomination when I established that in fact it wasn't in the photograph that he was shown in the photo array and in fact it was a tattoo placed on my client's cheek years after the fact two years after the fact so when he makes an identification it is not a reliable identification he says it looks like number one the prime mr

. He says when I got there I thought it wasn't Speakies. This is a known business establishment in the city of Philadelphia. The only thing different about it from the bar down the street is it's illegal and it's serving a market of people who want to continue to enjoy alcoholic beverages after two in the morning when the bars closed. So that's why I suggest this is not the challenging Wang and cases like that which do take us to that outer edge. We're not there. Does the fact that the evidence of interstate commerce is a close question? Does that impact on the gas, does the gas, does the gas, does the statement have an impact on that question as to the weight of the evidence of that particular facet of the Hobbes Act? Theoretically it could but again I don't think the gas and statement being a single isolated statement really even needs to concern us about the evidence but with regards to the Hobbes Act robbery honor with respect I don't believe it's a close question. When you have a witness testify I operated a big deal with you on the robbery. Okay so the witness standpoint my point was directed more to the second or third element of the Hobbes Act violation here that it had to affect interstate commerce. Wait and that's what I'm trying to answer as well Your Honor I don't believe that that element is a close question. Okay. The under the sufficiency standard or even under what's before the jury when they hear the owner of the business say I ran a business I profited from the business that's something I haven't mentioned she says she took some of the proceeds to pay for her children's education so she's selling it a profit and I shut down the business as a result of this this isn't one of those tough cases I fully acknowledge I respect what Judge Pollock wrote in the Walker case that we take very seriously about the need for federal prosecutors to be careful in what cases they prosecute given the expense of the Hobbes Act we recognize all of that what I respectfully suggest is this isn't a tough one this is a business and the only difference is it doesn't have a license if you didn't have that statement from her that she shut down if she had continued to operate it would you have the same well we we suggested other things with my limited time I wanted to focus on that but certainly the jury can infer that all those dollar bills dozens of them that were on the robbers when they were caught within minutes were proceeds of the business and that would satisfy Hayward the two bottles that some move from the basement to the first floor when they were seen by Ricky catch more that could satisfy Hayward but this is a much stronger case in Hayward and that's why I prefer to focus on the fact that the business closed all right thank you thank you very much for a little later we're bottle thank you Your Honors I just like to highlight first of all that mr's Ausmer agreed that no proceeds were stolen from the bar during this robbery and I think that's a very important fact and judge rend out that's that's at the heart of how we're dealing with that diminimous language in all of our cases urban and the many important authorities before it the fact is that the robbery was of a business so we know that when there's a robbery of a business a diminimous impact is enough this court has never to my knowledge an appresadential decision upheld a Hobbes Act prosecution where the robbery was of an individual okay I mean the plumbers may have been individual contractors and urban but they were robbed in their capacity as a sole proprietor of a plumbing business I don't think there's a precedent from this court holding that and the cases we've cited in our brief from weighing to parada to Madison all show robberies of individuals where those individuals have a much closer connection to commerce then do Alberto Vasquez and Brian Anderson and the other people who say they have money stolen from them so you're saying if someone is in let's say someone is in a store and a shopper and someone comes in and robs them and then the store owner decides to curtail their business hours because that's really what happened here and individuals were robbed and then the store owner who was not robbed basically decides to curtail a business that that's like another leap if you will right because this was essentially a robbery of an individual what about the fact that the business was clearly the target but you but you're on or I disagree with you I don't think the evidence can even be found to show that the speak easy was the target I think the evidence is beyond dispute that if there was an enterprise that was a target it was a PCP dealing operation that was separate and apart from the speak easy now I'd like to refer you know the government has gone from one theory to another several weeks before trial they filed a second superseding indictment to try to prosecute on the theory that the defendant's attempted to rob controlled substances and therefore it was a Hobbes act robbery judge joiner precluded evidence on that theory due to a discovery violation so that theory did not go to the jury it would presumably be open to the prosecution on remand we never heard from the prosecution the district court that that the defendant stole bottles this is idea this is at one point where somebody's seen holding bottles that was never argued to the jury it's something that's come up on appeal now that the government has realized their evidence was not strong at all well that was testified to right that there was testimony simply that at one point from Ricky catchmore he saw one of them and holding two bottles but there's no evidence that the bottles were actually taken out I guess or moved anywhere yeah this is speak easy have to be the target to affect interstate comments well it did on the theory the government tried this case on yeah I know that but does it have to have been the target even if we find it it wasn't the target if it affected interstate commerce isn't that enough if it because it's it's robbery what's being penalized here is the robbery right well that's just that you're on every robbery in some abstract sense affects interstate well that's what some of our cases and get very close to say well I think ultimately and Walker included which is a very thoughtful decision the court's been very sensitive but there has to be some kind of line it is pretty far out there but there is a line and the best proxy for it is whether the robbery is of an individual so I think that you know where you have it as a tenuated relationship with the speak easy as here no it doesn't matter if the speak easy was targeted judgment else so I just was uh I think you're right that the jurors would perhaps have been frightened for their own safety on hearing it's from Mark from a witness and and just I know mr. Zousmer doesn't like people insulting jurors intelligence but frankly I think that very upstanding citizens very intelligent citizens would have a very hard time putting them out of their head this out of their heads thank you thank you thank you mr. Hicks I don't know whether you were before me when I was a district court judge long ago I was your honor and cases like this bring back those thoughts well this this particular case is brought with a number of problems both pre-trial and of course during trial and I know that this court has discussed a great length of Hobbes Act issue I want to dovetail that issue with the 404b and 403 evidence that was admitted at the time of trial on the postal robbery underlying this entire investigation was this notion that somehow a group of individuals at Ebony Jist's house were also involved in this postal robbery not once tried the shred of evidence connected my client nor the code of offense to this postal robbery but there was a tremendous amount of any window including the direct evidence that in fact the pre-trial overwhelming and prejudicial evidence admitted by the testimony of Kathleen Grady who testified as the postal inspector then in fact they secured a search warrant for that house and then in doing so they did it based on information that they had received now the government argues in its appeal in its response to my brief that in fact well this evidence demonstrated a federal interest in the underlying investigation and that's where I'm concerned we have a case that is by razor man edge on the Hobbes Act issue presented the Jist's injury presented with this backdrop this underlying notion that there is a postal robbery looming out there somehow connecting our clients to this when there's not one shred of evidence of that and in fact even if that had been the motivation for the underlying federal investigation that evidence certainly should never have been admitted a trial there was a motion in lemonade to exclude that evidence the government sought to introduce it the government in its in its brief and by the way if I could reserve just a moment of time to respond to the government on this but the government argues in its brief that well it's not really 404b because we never really connected it to any of the name defendants so there really aren't unchanged crimes a problem is that doesn't escape the 403 analysis here the 403 analysis is significant because you've got an underlying case of allegedly a postal robbery not connected in any clear evidentiary way but a clear inference drawn by the jury that the same group of individuals where there had been a discussion about post incident with my client Jermal Lewis about what had occurred that night intertwined with this postal robbery what specific evidence was objected to before the district court it was objected I think throughout we had a motion in lemonade was objected pretrial and it was objected I believe at the time of trial um the government argues that that you're evaluated on plain error but even on the plain error analysis this is clearly beyond the realm of what I believe to be the court's gatekeeping function on the issue of 403 and the reason why I think it's important in this particular case is because as I stated before the the evidence on the Hobbes act was so minimal and so tenuous and I agree with with my co-council that in fact a line of demarcation should be drawn in this case it this is precisely the case to draw and limit the excretion extent of federal power into the commerce clause but you're saying they hear about something else that has to do with federal government federal so they put two and two together absolutely I I agree that when mr. Zosmer says the juries are very intelligent I absolutely agree with that and I think that under the circumstances in this case when when you don't have strong federal evidence or federal connection in this case and in fact you have the jury grappling with that coming back with a question on federal jurisdiction which is what they do while they're deliberating when you have that in conjunction with this what I believe to be clearly unduly prejudicial information about the backdrop of a postal investigation it undermines my question do you have a I do have an issue and I want to argue that Brian Anderson this is this is also a very important issue and I want to respond to and anticipate the government's response on a harmless error because I think it's not a harmless error issue here's the question with Brian Anderson Brian Anderson makes no identification of my client the incident occurs at night as you've heard and you've read the record he has 20 seconds to have seen my client allegedly the witness he had personally allegedly identifies as my client according to his testimony but the assailant 22nds who have viewed him that's it three and a half years later he's viewed he's shown a photo array and does not make an identification now this is squarely within the United States versus a manual because in a manual as the court remembers there are two bank tellers outside the courtroom the defendant is brought in shackles to the courtroom no prior identification in fact same scenario neither witness identified in the post-incident confrontation the photo array the defendant in that case however there is a in court identification following this out of court unduly prejudicial out of court identification unduly suggested out of court identification with the defendant being brought in shackles it's no different here the government seems to argue in a very first of all it doesn't argue a manual with respect to my client at all if you look at their response they argue a manual with respect to the show up issues raised by co-council and whether or not the show up identification was legitimate but when it comes to my argument on Brian Anderson they don't argue a manual in fact they skirt the issue a manual is direct now in point in this case what we have was we had a bifurcated motion to suppress it began in December it was bifurcated for scheduling until June we knew on that June date that that motion was not going to go forward we knew that yet the government did not cancel the bring down they had brought in mr. Anderson from out of state he's brought to the FDC he's then transported with the same group of inmates that include my client who had never ever been identified by mr. Anderson before so he's brought over the testimony was this become this becomes uh I become aware of this because I receive a 302 from the prosecutor indicating that in fact oh by the way he was seen in the marshals holding cell and he was standing and talking with the other two co-defendants who had been previously mr. white mr. shavers but previously been identified on seeing by this witness. The government says that was all inadvertent. You're on it actually actually it doesn't matter because Emmanuel doesn't say that the confrontation outside the courtroom was anything but an inadvertent the marshals brought Emmanuel into the courtroom and there was no evidence of a setup that the prosecution tried to arrange this post-incident out of court identification so I don't think it's well over here and I think it's interesting that the government would add this bad faith kind of issue as if it somehow affects the court's decision on whether or not it's under the prejudicial it does not this was a completely unduly suggestive posting to the identification three and a half years later after he'd all I'm sorry Judge I'm so sorry although if it's harmless I mean we do have evidence here we have phone conversations with Lewis suggesting his participation we have everything just in shuranda gaskins testimony as to his statements we have shuranda gaskins testimony about the meeting where they all learned about the speak easy and prepared to rob it um I mean we have evidence here that he was involved there is let me respond and I respond to that precise argument in my brief I give you 60 seconds thank you that in response yeah give 60 seconds now right now yeah very quickly it's not harmless error I agree with mr. zazberg that Ebony just was cross again in a great length she was not a credible witness she admitted to perjury before the grand jury that's number one shuranda gaskins was a jilted ex girlfriend essentially or shuranda gaskins was the one perjury Ebony gist was a jilted ex girlfriend so you had two witnesses that were under mind their credibility was under mind third you have one witness Alberto Vasquez who identifies my client and is absolutely certain without a reason without any doubt in his mind that the birthmark on my client's face was the identifying feature despite a generalized description until cross-addomination when I established that in fact it wasn't in the photograph that he was shown in the photo array and in fact it was a tattoo placed on my client's cheek years after the fact two years after the fact so when he makes an identification it is not a reliable identification he says it looks like number one the prime mr. Lewis and it also looks like like number four so we have right there an instruction to the jury photo right yeah this is the second this is the only other though unduly suggestive is not the first step we have to look at i think if you look at the question of whether i i i i i think you look at the question of of in annual the photo arrays were both shown to the witnesses initially the bank tells and they didn't identify it was a factor to consider the suggestive nature of the adequate confrontation was the marshals bringing the defendant into the courtroom and likewise here my client being putting the cellroom with the two co-defendants and the key witness standing next to them being able to now put it together all that must be the third individual all right we'll hear from you thank you very much well briefly excuse me briefly you're on it with regard to the postal robbery we're in an interesting situation where we sort of can't win we we have to show on your father as i said that there was a reasonable likelihood of an official proceeding that was federal whether the defendants were aware of it or not and here we're told we can't tell anything to the jury about why the federal investigators were even there that's the reason the evidence was admitted it was carefully admitted and monitored by the district court so there would not be prejudicial there was never any suggestion made to the the jury that these three gentlemen were involved in the postal robbery instead miss Brady was the main investigator who testified that she was conducting investigation of the postal robbery it led her to do a search of this house they found cell phones that belong to vestibus or witness tampering exactly and but you didn't argue that it was the official proceeding in the witness no we didn't and we never but we also never argued that these men had anything to do with the postal robbery it was the essential background of how federal investigators got involved leading virtually immediately to an investigation that touched on the speak easy robbery as well so if we if we're denied that evidence there's really no way to prove the official proceeding element of the witness tampering charge there was no prejudice of the defendants though because they weren't accused of anything involving the postal robbery in any evidence with regard to the identification of Lewis it's very important here and i think i heard a bit in the questions to break down what the legal standards are here uh the legal standard there's a distinction as i know the your honors know well between due process which is the government's obligation to not do anything unfair toward the defendant and the the the propriet this efficiency of the evidence the persuasiveness of the evidence putting an identification evidence by itself is not a due process issue it's something that can readily be argued to a jury what mr. Lewis's complaint is here with regard to mr. Anderson is how could he identify me it was three and a half years later i was standing there with shavers and white that's something you readily can argue to the jury and it's a proper issue for the question though under a manual bigger as all these other cases is did the government engage in any violation of the defendants constitutional due process rights that happens where the government engineers an unduly suggestive identification procedure there was no identification procedure this was inadvertent they were they happened to be with a large group of inmates in the same place at the same time Anderson saw what he saw he reported it it was told the jury and the jury could evaluate that we don't get to the due process that's true uh the last thing just a final word on on the hops act if i may i don't think that what mr. hessnecker argued spills over to those hops act questions which i think i did fully address if i could just make one other point uh on with regard to mr. dotty you said um i don't agree that he said we conceded that no proceeds of the bar were taken that's not accurate uh we have argued it it's in our brief uh that wasn't the focus of my argument here but certainly we think proceeds of the bar were taken at more importantly a reasonable jury could infer it from something like 60 or 70 one dollar bills that were found on the two men immediately after they escaped from the robbery these are customers with the bar we don't get proceeds Mrs. whatever upstairs a sleep she took the money upstairs and put it under the mattress and went to sleep or the proceeds well no because here's where we get into the weeds of the evidence miss catch mark testifies that she went to sleep around 3 a.m. and that she didn't believe that any further sales were going on but if we read vast quizzes testimony it's pretty clear that sales were still going on now he why would the customers have and that would because there's there's this fellow named Darrell who is the bartender he's the worker there and then he died and he didn't testify was an available testify at the trial but Darrell is the guy selling and so what did he was his money taken there's no test evidence regarding that given that there is evidence that sales were continuing i'm not saying it's conclusive but i'm saying it's evidence of jury could rely on they could rely a dollar bill seemed like what you'd have in a card game not proceeds except for the fact that we did put in evidence regarding the prices of these drinks two dollars for it be here three dollars no evidence at any of those dollars for proceeds is that is it's an inference your honor and the jury this has changed they got for buying the that's an inference also the the the jury is entitled to make a reasonable inference there can be conflicting inferences and on a pellet review this court is required to accept the reasonable inferences that favor the verdict here you have it you could have an inference that Darrell has the proceeds of the bar you could also have an inference or that there were proceeds downstairs you could also have an inference that all these one dollar bills were held by the customers the jury is entitled to make the decision now again we don't rest on that because in this the last thing i'd like to say we have to keep in mind also this court's repeated holding that the effect on commerce can be potential now the reason for that holding and the reason it's right is that the statute itself prohibits attempt and in fact attempt was charged in this indictment not just the substantive robbery so an attempt to affect interstate commerce this is why it also doesn't matter if the bar closed five minutes before if there's a potential impact that's sufficient businesses robbed but if we if we conclude that individuals only were robbed here i think it's very tough to say that the potential effect on interstate commerce i agree if this court's conclusion is that only the individuals were targeted and robbed we probably lose this case but there is evidence in the record that this was an ongoing regular business that was targeted that they took miscatch more down to the basement asking where the money was and that's why on a pellet review with all respect we don't believe that would be an appropriate conclusion thank you very much thank you last word mr. your honor i would actually i see to my colleagues since mr. sasrism most of his time in response to the the harvester issue i would then defer to mr. donny if you would allow him to respond mr. donny one any last words to leave us with is an interesting and difficult and important case mr. sasr emphasizes that do not catch more may have been wrong about x or y or z but she did state absolutely that she took the proceeds to bed and nobody else stated anything else to the effect that there were still proceeds out there okay you could infer that she's not credible but there's no affirmative evidence the proceeds were stolen um fowler is a is a case certainly important to the witness tampering counts that mr. sasrism has been addressing but i would submit and this is laid out in our reply brief that it's actually not directly applicable there is a subjective element here and that's that the defendant had to have in contemplation an official proceeding thank you thank you places very well argued take it under advisement you

Good afternoon, Your Honours and May it please the Court. My name is Keith Donahue and I'm here for Appellant Gloria Shavers with me at the Defense Table or Paul Hetznecker Council for Jamal Lewis and Karina Laguzzi Council for Andrew White. I'm going to be speaking for 15 minutes of the defendant's 20 minutes time and I'd like to reserve 3 minutes for Rebuttal if I may. Okay. And Mr. Zalzmer, do you want to, I think you should probably respond and then have Rebuttal and then we'll go to the next 5 minutes. Does that make sense? I think that makes sense. We'll do your argument, Mr. Zalzmer and your Rebuttal and then Mr. Hetznecker. Very well, Your Honour. Thank you. If I may, although I have a good deal to say about the interstate commerce issues, I'd like to turn first to what I submit maybe the most striking aspect of this record. And that's witness Shuranda Gaskin's testimony that she feared for her life because, and I quote, for a fact, I know that G-Box is a killer. Now G-Box is a nickname by which the jury had come to know my client Gloria Shavers. And I think it's worth pausing over the substance of this extraordinary testimony. This was a witness stating that she feared the defendant would kill her for testifying. When a jury hears something like that, there needs to be a mistrial. And both this court and the Supreme Court have made clear that there are instances when a witness can say something so outrageous that no curative instruction can suffice to cure the prejudice. Although isn't this the type of case where we really should let the district court assess the impact as compared to the evidence that's the other evidence that's presented, the fact that it was one remark, not repeated, not referred to, the fact that there was an instruction given. We don't know the credibility of this witness. Perhaps the district court should be in a better position to say, you know, she seemed like she was acting out the whole time. She was testifying and this was just another, I mean, district court didn't say that. But isn't this the type of case where we should let the district court decide and really be careful about abusive discretion? Well, the most substantive comment that the district court made about what happened was that the prejudice was significance. And the district court lamented that Ms. Gaskin didn't simply say she'd heard, he killed someone. The district court paused to say, she testified, I know he murdered someone. So that's that's most of what we have the district court saying. Now, I think in the typical case, some deference to the district courts rulings on mistrial motions is certainly due. But unfortunately, district courts can get it wrong. District courts may have an interest in moving a trial along. We do have a three factor test that takes account of the matters your honor has identified. So while it was one remark, I think that it was a very persistent and pronounced remark. Well, the third factor of that law, law test is a curative instruction you had to, right? I mean, you had a curative instruction immediately and then one right before the case went to the jury, right? There was a generic curative instruction when the case went to the jury about not considering arguments or strict in testimony. Right. And one very specific instruction about this one. The specific instruction came about 75 minutes after the testimony was given. The jury had actually been sent into recess and had lunch in the meantime. So that's a problem. That was to me. It was to me. It was curious. That helps me a great deal. How does that help you? Well, those 75 minutes that the jury was sitting there without having been admonished at all, let this really become etched in granite in their minds. That's a metaphor used in the United States via a keen case. It just sat there. And if you look very closely at the record, you'll notice that during that 75 minutes, they went to lunch. They disperse, they had been instructed. Don't talk about the case. Don't talk to anyone. Doesn't that really hurt your argument, to say? I don't think so. I think the predominant significance of the delay is that it let that testimony sink into their heads and become harder to remove. All right. I think that's the issue. I mean, it's an abusive discretion standard. And you're asking us to find that no reasonable person could have come to the same conclusion that the district court did. Is that a very heavy burden under these facts under this apical law? I think it is a heavy burden that these facts satisfy your honor. I mean, if you look at the United States via gray case, the court in that on-bunk decision was also aware of the death prints that owed the district court. There was, in that case, the prosecutor had stated to the witness, you killed your wife, right? It wasn't even testimony from the witness. It was a statement by the prosecutor. Well, it was also stated by the prosecutor, too. And wasn't that part of it that the prosecution went far afield here. Prosecution only asked, what do you mean? And it seems to me if they said, what do you mean? It could have bolstered her credibility because she said, you know, it's dangerous for me to be testifying here. In my neighborhood, people don't snitch. And that, you know, I could see here the prosecutor didn't really do something on tour. Doesn't that hurt? Certainly not, as on tour doesn't gray. I don't mean to incendiate that at all. You stated in your brief, you thought that the prosecutor did bid, or how do you come across that? How do you come to that conclusion? That was just reciting the district courts. Chastisement of the prosecutor for having asked an open-ended question. You'll find the judge chastising the prosecutor very severely in the record and telling her shortly before the jurors come back in that this case is tossed if something like this happens again. Again, you've got these statements by the district court that show it's disturbed. The district court's disturbed. It's so disturbed. It tells the jurors, you can't even talk about this. Well, I don't question at all the zealous effort of the district judge to cure the matter. But unfortunately, it was a task beyond his ability to achieve. The very notion, don't talk about this, is somewhat telling. It calls to mind an idiom the court used several years ago in the United States, the elite, where the court said, we won't blindly assume that jurors turn a blind eye to the elephant in the deliberations room. I can't emphasize enough how unique I feel this statement is. I think this statement is eons more prejudicial than the statement in gray or carny. A witness testifying she fears for her life because the defendant is going to kill her. No matter how conscientious a juror may be, that is going to ring in their ears inevitably. Well, it's interesting. I think that when we think of prejudice, we don't think of harmful. We think of prejudice meaning the emotion outweighs the evidence. Here you had evidence of guilt, and that's one of the tests. But would you address the witness tampering? Because there it occurred to me, if we look at the statement and we look at the witness tampering, I think that's a close case in terms of the actual guilt. The fact that maybe that evidence swade in terms of witness tampering, I don't know. But isn't one of the tests that the weight of the evidence, the amount of evidence, and don't we have a situation here that really isn't that close? One of the tests certainly is the weight of the evidence. I do think the evidence here is weak. There is a lot of testimony of a vicious episode inside a home. What there is virtually no evidence of is how a theft of $100 from a few people at a dining room table could ever have an effect on interstate commerce. That's an element of the charge that was brought here. The defendants were charged not with robbery, but with interfering with interstate commerce by robbery. When it comes to that element, the evidence was we cement none existed, but at the very least it was weak. And as your Honor says it- It was very instructed that a minimal or potential, what was the instruction under the Hobbes Act? It was along the lines of the United States, the urban standard of minimal. Your Honor, we don't think there was proof here of a minimal effect on interstate commerce. I mean, it's an unusual case. The government talked about a robbery of a few people at a dining room table. Robbers took some money, took some cell phones, ordered everyone down into the basement, and then started rummaging around upstairs. But it's clear that the reason the robbers went to that house was because it was- there was a speak easy, and they thought there'd be a lot of money there. So they were there targeting a business. And haven't we in our case law talked about the fact that they've targeted interstate commerce, that that has the potential effect that that can be sufficient? I think that it would be a factor for the court's consideration if the robbery had been directed at the speak easy. And your Honor, respectfully, the evidence cannot support a conclusion that the defendants targeted the speak easy. It absolutely cannot. They took up many downstairs after the- They sent everyone downstairs so that people would be out of their way so they could rummage around the first floor for drugs. The evidence is fairly uncon- differentiated in that regard. The speak easy was downstairs. That's right. So your Honor, in fact, at sentencing, the prosecutor stated that apparently this house was robbed on some supposition that there were drugs there. Well, that may be there was evidence that the defendants rummage through refrigerators and an expert testified that PCP is stored in refrigerators. And there was also testimony that the defendants kept yelling out, where's the wet? And there was expert testimony that wet is a slang term for PCP. Now- So if the government had tried the case on the premise that this was a robbery affecting interstate commerce because it was directed at a drug dealing operation, Judge Rendell, I think we'd have a much different situation. They did not prove a robbery directed at the speak easy. The robbery wasn't in the speak easy, which was downstairs. It wasn't of the speak easy. None of the speak easy's proceeds were taken. And it wasn't directed at the speak easy. But the paraphrase- The government's argument that I think they make, Mr. G- The Osmer can speak for himself. They argued that the interstate commerce that was affected by the robbery was some liquor bottles that may have been taken in the course of the robbery. And the fact that the woman who ran the speak easy testified that she discontinued the operation of the speak easy after this robbery. Now, are either one of those substantially enough interstate commerce to be affected? Well, I don't think you're going to be surprised if I say no. I don't believe they are. For several reasons. First of all, in this case, because the robbery was of individuals in a home and not a robbery of the speak easy, for the reasons I've just stated, we don't think it's effective. It's appropriate to even be looking at any theoretical effects. There may have been on the alcohol sales. That's too attenuated. If this robbery had taken place outside a bar in Chestnut Hill, and the bar got a bad reputation because of it and went out of business, that would not be a Hobbes Act robbery. Not a street mugging in front of a bar that turned out to have consequences for the bar's business. Well, unless the person stopped, unless the person closed their shop, if they said, I don't need this aggravation, I'm moving to Florida and they close up shop. Well, what I'm suggesting is I don't think it would be enough if the robbery, which is the mugging of a pedestrian in front of the bar, even if it ended up having an effect on the bar. And I think that analogy is the same here. It doesn't matter what happened to Jeanette Catchmore's sales of alcohol because this robbery was not directed at her speakings and it was not a robbery of her business. No, you're saying it didn't affect. Well, I would also say that, or at least I would say that no rational trial effect could find beyond a reasonable doubt either of the things you mentioned, either that her business went down or that bottles were stolen. I don't think those things could be found beyond a reasonable doubt. More fundamentally, I think that there are relevance in the analysis because the robbery was not of the entity to which those things related. You know, another analogy might be a robbery. I prefer it. I'm just looking at Walker. We've referred cases where it's targeted. And it clearly was evidence here that it business was targeted. They said because it had a lot of money and it was sweet. All the money is in the basement. They clearly were targeting the revenues of the speakings. I mean, there is evidence. Your Honor, I think it's the last sentence of what you said that's a step too far. There is the testimony there about how they thought there would be money in the house. I'm willing to grant you that that would support an inference. They thought there was some kind of enterprise going on in the house. But all of the other evidence is that the enterprise they thought was generating the money was drug dealing. They were not concerned about the speak easy. You won't find any statement of any defense. It helped you or hurt you because they were targeting drug dealing. It helped it. It helps us because that was not a theory ever presented to the jury. And it was here. There were no facts. It could be retried on that theory. There were no facts about drug dealing even in the record. Before the jury. Yeah, there are quite a few. I mean, there's quite an emphasis on the testimony of both Ricky Catchmore and Jeanette Catchmore that the men in the house were yelling, where's the wet? Where's the weed? And that they rummaged through refrigerators. All right. Would we have to overturn precedent? I mean, I think you're you have a good point in that this is really far removed from interesting comments. And yet we have language in USV Heywood. Any interference with or effect upon whether slight subtle or even potential. We have that language in our case. Do we have to embank this because you have a slight subtle or potential. Maybe that's fulfill here, but maybe it shouldn't be. I don't think you have to unbunk it. I mean, yes, there's that language. It is subtle. If any any potential. Well, it's you know, I think as a matter of law, it's just. It's so low that anything can meet it. Well, I think we're heading in that direction. You know, I mean, look, any robbery involves a theft of currency, which is of course the medium of interstate commerce, right? So theoretically, every robbery affects interstate commerce. Some kind of line has to be drawn. And traditionally, the line has been seen robberies of individuals and robberies of businesses. Now, it didn't a six circuit draw a line in US versus Wang in 2000 and didn't our walker. Our recent decision in Walker sort of say that the third circuit was not going to adopt that line. I wouldn't I wouldn't read Walker as rejecting that line. I read Walker. He would extinguishing those cases. You would agree that Wang would be a good case for you if it was a third circuit decision. Absolutely. And I still think it's a good case for us. I don't think Walker completely disavowed Wang. Walker makes a point of saying the robbery we're looking at is different from. And I'm quoting the home invasion robberies of the type at issue in Wang or here. So we have a home slash business invasion here. That's a way of looking at that. Certainly that's that's what we can argue about all day. I'm going to argue it wasn't a robbery of the business because it didn't enter the business. The robber's only interest in the basement was as a place to go stow away the people so they could search through elsewhere in the house. They were not robbering robbing the speak easy. Since it wasn't directed at the speak easy it's different from cases like Walker. You know not only did the court expressly distinguish home invasion robberies but it said what really made Walker easy is that it was a robbery of a drug dealer on the street selling drugs. That individual was engaged in interstate commerce at the time of the robbery. Are you going to address witness tampering or? I am going to address it. You want me to move on? I don't know how much that matters in terms of the overall scheme of things is sentencing or whatever. Well it means about a year to our client sentence and I do think it. Not as good as a mistrown. It actually think the issue is extraordinarily clear at your honor. Really extraordinary. The reason I haven't come to it until now is I think to brief slide out fairly well. The United States V. Bell case says that it's not witness tampering if it's solely motivated by a state proceeding and here that is the only possible conclusion from the record. There was nothing contemplated or foreseeable from a. Nothing contemplated or foreseeable plus the speaker is affirmatively stating I'm talking about my preliminary and the municipal court. The state court proceeding. Thank you Your Honours. Thank you. Mr. Zazmer. Thank you Your Honours Mayor please the court on Robert Zazmer on behalf of the government. To be very frank I agree with Judge Randall's observation if it is an observation that the witness tampering issues present a challenge and issue in this case and I want to make sure to spend time on that and I respectfully disagree with my colleague that with regards to the briefs because we do have the foulard case that was decided by the Supreme Court after the briefing was concluded in this case so I want to make sure to leave some time to address that. Let me first if I may go through the couple issues that Mr. Dada here refer to that I myself do not find challenging. The first involves this unfortunate statement that Ms. Gaskin made during her testimony and saying that she knows for a fact that the Mr. Shavers is a killer. This wasn't you know I know for a fact that he's committed crimes. This was that he's done something so egregious that nobody is going to want him on the street. Oh absolutely and Judge Joiner very experienced district judge assessed the situation and gave an emphatic instruction to the jury to disregard it had them orally promised that they were not only not considerate but never mentioned it and not discuss it. What's the effect of the time period there was there was mention that it was 75 minutes later. I mean they bring up a point I mean the jurors let that sink in for a while and well they did go to lunch and they did disperse there obviously was no discussion could they have thought about it individually of course but then they come back and they get this very clear instruction. My problem with the defense argument here and I think members of this court have have probably heard this rant from me before is I'm critical of of arguments that take a dim view of our jurors and treat jurors as anything other than what they are which is very intelligent qualified adult citizens. Well by the same token if the judge does not say anything immediately and I'll never forget my first my first trial council tried to pull something and the minute it was said I said to that jury you are not to pay any attention to that that has no bearing whatsoever and you know so but if a judge doesn't do that right away well but when I then you know what do they go out in their eyes are bulging like oh my god this poor woman thinks she's going to get killed you know what what about us well sure that that's preferable but again my suggestion is that when you have intelligent people who are loyal jurors who are told them fatically by a judge whether it's 75 minutes later or even a day later ignore it don't consider it you may not discuss it people follow judges instructions that's a holding of this court and the supreme court and so sure it would have been preferable to say it immediately but I don't think it's watered down in any way and then we can assume that the jurors did not follow this instruction the other thing to consider here is that again and looking at the precedent of this court it's one statement isolated it's never repeated it's a case in which there's an overwhelming amount of evidence with regard to mr. shavers but more importantly with that in karni and gray were those single statements well in karni for example the I believe it was the court held that the evidence in that case was not overwhelming and there you had a much more specific allegation and I'm this is what I'm getting at in terms of misgaskin's credibility you had a specific allegation that that defendant tried to murder me and my children so you have a much more substantive allegation grave for sure you have prosecutor on this conduct which is a whole different ball of wax in which the prosecutor says uh denier murder your wife uh we don't have that here but I want to highlight gaskin's credibility again the the presumption here is that this jury of of gullible people is sitting there they hear one witness say I know he's a killer and at that moment they lose all rationality they go back in the jury room and they're couldn't get convicted of anything whether he's innocent or not now of course this jury doesn't even convict mr. shavers of everything he actually is acquitted of counts in addition to the counts of conviction but with regard to misgaskin her she is impeached from one end of the courtroom to the other um throughout this trial and in fact if you look at the closing arguments page 1887 of the appendix is mr. shavers closing his counsel says this is a witness who lied admitted she lied lied on several occasions and the next page says with regard to misgaskin and others who are these witnesses they are criminals they are drug dealers they are drug users they lie on the witness stand that's who they are uh so we're supposed to believe that this witness who did have the vulnerabilities that were identified there that this witness says one thing about the killer the judge emphatically tells the jury to ignore it and we're to believe that the jury has nevertheless lost all reason we don't accept that based on the court's press. The one that was in the tampering conviction because quite frankly mr. shavers i can't find a way that that was that there was an official proceeding as we have construed official proceeding that should have been in the contemplation could have been in the contemplation at that time and I just I have great difficulty with the jury's finding guilt on that the evidence was underwhelming if not nonexistent. Let me address that and this this as I said is a little complex if you'd indulge me to go through this step by step the most interesting thing at the outset is that this wasn't argued to the jury. Here this is basically a sufficiency question and here we have defense counsel saying there was insufficient evidence for this jury to find that it was a federal proceeding they didn't even have the temerity to argue that to the jury at trial which I think is relevant they actually did argue federal jurisdiction with regard to the Hobbes Act which is a separate issue but here they did not think it was worthy enough to go to the 12 people and then they come to this court and say there was no evidence whatsoever that's point number one but point number two it's and very important to walk through the law. Just just want to stop you that doesn't stop them from coming and arguing. Absolutely not. I'm just saying it reflects the strength of the argument but of course that's true but in working through the law here the government has to show that there was an official proceeding that there was an effort to obstruct and that there has to be a particular official proceeding that's what Arthur Anderson says but none of this has anything to do with the defendants state of mind because the statute explicitly says first of all that the official proceeding doesn't have to be pending at the time of the obstruction and second of all says that there's no requirement with regard to intent with regard to the federal nature of the proceeding. So in other words what the government has to show is that this obstruction was directed at a particular federal proceeding but does not have to show that the defendant was aware of that new it contemplated it predicted it and it was no federal proceeding. There wasn't and again but what was the federal proceeding? You have to have an underlying federal proceeding at least. Wait the federal proceeding here is the pro-post office? No no no not at all the federal proceeding that's in the future is the prosecution of this robbery. The evidence in the tapes was having to do with their hearing on the 19th or the 18th and the Philadelphia court so there was no time to tamper with any. There was no in top of what you had turned out to say there was no anticipation on the part of the federal government that there was even going to be a proceed. Well there I just disagree on it. The evidence that was submitted was that with the certainly the investigation began with the investigation of the postal robbery but immediately was relevant to the investigation of this matter as well. The search was conducted of Miss Guest House or Guest House I every pronounce that. Within about 10 days or nine days after the robbery and it was during that search that they found evidence in her house from these people of this robbery of the Speakeasy robbery. At the same time those were the cell phones. That's right and they didn't learn about the cell phones too much later but at the same time the same federal investigators then requested the phone calls in the prison and immediately heard all sorts of evidence of the Speakeasy robbery and this is where Fowler becomes important. What the Supreme Court and Fowler resolved is what does the link need to be given that there doesn't have to be again any anticipation or knowledge by the defendant but the government does have to show that there's a link to an official proceeding even if the official proceeding isn't an existence yet and what Fowler says is a reasonable likelihood. There have been different standards from different courts over the years and the Supreme Court says you need to show that there was a reasonable likelihood that there would be a federal proceeding and that's where this case lies. I would submit that given that these federal investigators were working in this case given what the jury knew a jury reasonably could find a reasonable likelihood. Again we're dealing with the sufficiency of the evidence standard here. Was there sufficient evidence that a reasonable jury could rely on? Now interestingly this jury was instructed to make a finding well beyond this reasonable likelihood standard and that's probably why none of the defendants have argued any infirmity in the jury instructions. The jury instruction simply told the jury and it's at page 2024. There has to be a federal proceeding and the proceeding has to be pending or likely to be instituted. So the judge was at likelihood. Now the Supreme Court tells us it's a reasonable likelihood which the Supreme Court says in Fowler is less than a proofy on a reasonable doubt. Mr. Zanzim, let's go to the interstate commerce question in the Hobbes Act violation. This seems to me that this event seems to me to be a rather run of the mill state law robbery that took place and if this robbery is covered by the Hobbes Act what would not be covered? What kind of robbery would not be covered? Well there are plenty of robberies that are not covered by the Hobbes. Tell me one. Let's stick up robbery on the street. One person walks up to another, points a gun at him and takes his money. How is that? I mean if the person you stuck up on the street was a drug dealer that would be covered under Walker. Correct. It seems to me that here the only real difference was instead of being on the street it's inside someone's home. Well that's why I disagree and I strongly disagree with the characterization of the evidence that we heard from my friend Mr. Lange. Tell us how we do this. Well we heard a jury argument that really just omitted the key facts. What makes this the Hobbes Act part not difficult I said that the the witness tampering I acknowledge is we need to address based on totally different standards. But first of all you have the robbery here of a business. The question is again sufficiency of the evidence. Is there evidence in the record on which a reasonable jury could rely? And what we have first and foremost, I disagree your honor. How was a business robbery? Well first of all they even questioned whether it was a business. They described this as some kind of social dinner party. So we start. What was evidence from which they could say? If I may the for Jeanette Catchmore is the owner of the of the speed DC. She testifies page 1156 of the record. This Catchmore was there a time in the past that you operated a business at your house. Yes I did. What kind of business did you operate? Well I used to sell beer alcoholic beverages. But she wasn't doing that when the robbery occurred. She was upstairs asleep. Well let me get to that your honor. When they come in the house the evidence is from those women who heard the planning for this. That this fellow con who was in on the planning said this place has a lot of money. The money's in the basement. Let's go rob it again. A jury can infer from that. This is a robbery targeting the business. The speak easy. And finally and most importantly the Miss Catchmore going back to Jeanette Catchmore page 1167. She says that when she was brought downstairs a robber took her to the basement and kept asking her where's the money. Now if that's not evidence that a jury can rely on to find that this is a targeting the money of the speak easy. And I don't know where our case log gets this targeting. I mean the second circuit in Wilkerson talks about targeting. We talk about targeting but the law is an effect on interstate commerce. I mean you can say there's an individual walking down the street and you think he's a big money manager and he has diamonds on his person and therefore you want to rob him and he'll stop his diamond business. But you stop him and he has his money and turns out he's maybe the wrong person or maybe it's the right person but it doesn't have any effect on interstate commerce. It's the fact that they've targeted something that could have an effect. Do we read that into the the Commerce Coast jurisprudence? Well yes this court has the. Has a Supreme Court which case? Well urban the Whitmer. The urban. Urban's a different case. Well it isn't that they're all different cases but what the cases have uniformly said and there are at least 10 cases going point not one where we said that a robbery of a home that also may have served as a speak easy could constitute interstate commerce. No I cannot identify a prior speak easy. There's not any even across the country. Your honor but what I can say is that this court has very clearly said and I you know reasonable Americans can debate whether this is an appropriate division of federal and state authority but what this court has said is that this is the maximum exercise of Congress's power under the Commerce Act that any robbery or extortion that has even a potential effect on interstate commerce is sufficient to bring it within the scope of the Hobbit. Now Mr. Zaz, just stop here. I want to stop you just right there. Tell me what the interstate commerce is. The interstate commerce is essentially running a bar. It's just an illegal bar. It's an unlicensed bar. That's why I this case your honor does not strike me as that difficult. This is what it fits you have on the bar. Well it closed down is the easiest answer. This is what evidence the record that money or property was taken from Catchmore right? The actual owners of the bar. That's correct. But again in terms of the effect on the business, the reason this isn't a difficult case I submit is that this is a robbery in the premises of the business. And then Ms. Catchmore is asked this is page 1175. Did you continue to operate this business after this occurred? She said no. The question was at all and she said no I got scared then. You know that was enough. Now again this maybe two parties could argue this evidence but this is evidence that a reasonable jury can rely on. The fact that it's closed your honor which we don't think is totally clear on the record. But even if the bar is closed and the last customers are finishing their card game before heading out the door. That doesn't mean that this doesn't have an effect on their state commerce. If you just take away the illegal nature of the business, if you have a restaurant that has stopped serving and the last patrons are there and the arm gunman come through the door and terrorize everyone to the point that the business closes. Obviously that's an effect on their state. Mr. Zaz, for what if the record showed that they went there because they know there was a big card game going on. I know there was a card game going on every so many nights and that was one of the nights. Would that be sufficient? Probably not. It's a harder question. Why not? Why would the card game differ from the Speakies? Well if the card game were one of the things that the Speakies offered in order to entice customers. This is a big card game. Ms. Place was known to have a big card game every Wednesday night and they knew there was a lot of money on the table when that card game and that's why they went there. People come to go and they went there. I would say the reason I would at least hesitate before approving that case is that we don't have a business engaged in their state commerce which is what are the cases tend to focus on how does that how is that differ from a Speakies? Because in a Speakies, as I said, is a bar. It's catch more is going to a supplier. She's buying beer and wine and cognac and other products sold in interstate commerce. She's bringing them back to her bar. She's selling them at a markup at $2 a beer, $4 a shot. She is a bar. What if Ms. Catchmore was cutting the proceeds at the card game? The house got $10 a hand. Well then if we're starting to turn the house into a casino. I got to a point I'm getting. Then yes, then I would say that at some point we do get to a business that affects interstate commerce because this would be an instance of a business that certainly went aggregated. It does affect interstate commerce. The question becomes. The question for us to answer here is does the commerce under the commerce clause have the ability to regulate Speakies and card games? Well I don't know as to card games because we're not we did not get into card games. Well we didn't present this case that way. Let me enjoy it to the first. Is the Congress have the power under the commerce clause to regulate the operation of a private home that is being used as a Speakies? And my answer to that is yes. That's the question I prefer to focus on and that is that this is a bar. This is an establishment serving alcoholic beverages. If you look at the distance. It comes from out of state and what else? You were saying what how is there next? Well that was the next as we showed just like in Hayward and it's the exact same thing. If you look at the testimony of the customers that's sort of interesting. They weren't going the way the defense council wanted them to go in saying that this was come kind of social gathering sort of dinner at aid in which people happened to pay a couple dollars for their alcohol. When Alberto Vasquez was one of the customers and he was asking what is this? Page 961. He says the place people would go after the time inside the bars that closed to two o'clock. It's known on the streets as a Speakies. It's a business. Same thing with Brian Anderson. Page 871. It was set up like a bar. 899. He says when I got there I thought it wasn't Speakies. This is a known business establishment in the city of Philadelphia. The only thing different about it from the bar down the street is it's illegal and it's serving a market of people who want to continue to enjoy alcoholic beverages after two in the morning when the bars closed. So that's why I suggest this is not the challenging Wang and cases like that which do take us to that outer edge. We're not there. Does the fact that the evidence of interstate commerce is a close question? Does that impact on the gas, does the gas, does the gas, does the statement have an impact on that question as to the weight of the evidence of that particular facet of the Hobbes Act? Theoretically it could but again I don't think the gas and statement being a single isolated statement really even needs to concern us about the evidence but with regards to the Hobbes Act robbery honor with respect I don't believe it's a close question. When you have a witness testify I operated a big deal with you on the robbery. Okay so the witness standpoint my point was directed more to the second or third element of the Hobbes Act violation here that it had to affect interstate commerce. Wait and that's what I'm trying to answer as well Your Honor I don't believe that that element is a close question. Okay. The under the sufficiency standard or even under what's before the jury when they hear the owner of the business say I ran a business I profited from the business that's something I haven't mentioned she says she took some of the proceeds to pay for her children's education so she's selling it a profit and I shut down the business as a result of this this isn't one of those tough cases I fully acknowledge I respect what Judge Pollock wrote in the Walker case that we take very seriously about the need for federal prosecutors to be careful in what cases they prosecute given the expense of the Hobbes Act we recognize all of that what I respectfully suggest is this isn't a tough one this is a business and the only difference is it doesn't have a license if you didn't have that statement from her that she shut down if she had continued to operate it would you have the same well we we suggested other things with my limited time I wanted to focus on that but certainly the jury can infer that all those dollar bills dozens of them that were on the robbers when they were caught within minutes were proceeds of the business and that would satisfy Hayward the two bottles that some move from the basement to the first floor when they were seen by Ricky catch more that could satisfy Hayward but this is a much stronger case in Hayward and that's why I prefer to focus on the fact that the business closed all right thank you thank you very much for a little later we're bottle thank you Your Honors I just like to highlight first of all that mr's Ausmer agreed that no proceeds were stolen from the bar during this robbery and I think that's a very important fact and judge rend out that's that's at the heart of how we're dealing with that diminimous language in all of our cases urban and the many important authorities before it the fact is that the robbery was of a business so we know that when there's a robbery of a business a diminimous impact is enough this court has never to my knowledge an appresadential decision upheld a Hobbes Act prosecution where the robbery was of an individual okay I mean the plumbers may have been individual contractors and urban but they were robbed in their capacity as a sole proprietor of a plumbing business I don't think there's a precedent from this court holding that and the cases we've cited in our brief from weighing to parada to Madison all show robberies of individuals where those individuals have a much closer connection to commerce then do Alberto Vasquez and Brian Anderson and the other people who say they have money stolen from them so you're saying if someone is in let's say someone is in a store and a shopper and someone comes in and robs them and then the store owner decides to curtail their business hours because that's really what happened here and individuals were robbed and then the store owner who was not robbed basically decides to curtail a business that that's like another leap if you will right because this was essentially a robbery of an individual what about the fact that the business was clearly the target but you but you're on or I disagree with you I don't think the evidence can even be found to show that the speak easy was the target I think the evidence is beyond dispute that if there was an enterprise that was a target it was a PCP dealing operation that was separate and apart from the speak easy now I'd like to refer you know the government has gone from one theory to another several weeks before trial they filed a second superseding indictment to try to prosecute on the theory that the defendant's attempted to rob controlled substances and therefore it was a Hobbes act robbery judge joiner precluded evidence on that theory due to a discovery violation so that theory did not go to the jury it would presumably be open to the prosecution on remand we never heard from the prosecution the district court that that the defendant stole bottles this is idea this is at one point where somebody's seen holding bottles that was never argued to the jury it's something that's come up on appeal now that the government has realized their evidence was not strong at all well that was testified to right that there was testimony simply that at one point from Ricky catchmore he saw one of them and holding two bottles but there's no evidence that the bottles were actually taken out I guess or moved anywhere yeah this is speak easy have to be the target to affect interstate comments well it did on the theory the government tried this case on yeah I know that but does it have to have been the target even if we find it it wasn't the target if it affected interstate commerce isn't that enough if it because it's it's robbery what's being penalized here is the robbery right well that's just that you're on every robbery in some abstract sense affects interstate well that's what some of our cases and get very close to say well I think ultimately and Walker included which is a very thoughtful decision the court's been very sensitive but there has to be some kind of line it is pretty far out there but there is a line and the best proxy for it is whether the robbery is of an individual so I think that you know where you have it as a tenuated relationship with the speak easy as here no it doesn't matter if the speak easy was targeted judgment else so I just was uh I think you're right that the jurors would perhaps have been frightened for their own safety on hearing it's from Mark from a witness and and just I know mr. Zousmer doesn't like people insulting jurors intelligence but frankly I think that very upstanding citizens very intelligent citizens would have a very hard time putting them out of their head this out of their heads thank you thank you thank you mr. Hicks I don't know whether you were before me when I was a district court judge long ago I was your honor and cases like this bring back those thoughts well this this particular case is brought with a number of problems both pre-trial and of course during trial and I know that this court has discussed a great length of Hobbes Act issue I want to dovetail that issue with the 404b and 403 evidence that was admitted at the time of trial on the postal robbery underlying this entire investigation was this notion that somehow a group of individuals at Ebony Jist's house were also involved in this postal robbery not once tried the shred of evidence connected my client nor the code of offense to this postal robbery but there was a tremendous amount of any window including the direct evidence that in fact the pre-trial overwhelming and prejudicial evidence admitted by the testimony of Kathleen Grady who testified as the postal inspector then in fact they secured a search warrant for that house and then in doing so they did it based on information that they had received now the government argues in its appeal in its response to my brief that in fact well this evidence demonstrated a federal interest in the underlying investigation and that's where I'm concerned we have a case that is by razor man edge on the Hobbes Act issue presented the Jist's injury presented with this backdrop this underlying notion that there is a postal robbery looming out there somehow connecting our clients to this when there's not one shred of evidence of that and in fact even if that had been the motivation for the underlying federal investigation that evidence certainly should never have been admitted a trial there was a motion in lemonade to exclude that evidence the government sought to introduce it the government in its in its brief and by the way if I could reserve just a moment of time to respond to the government on this but the government argues in its brief that well it's not really 404b because we never really connected it to any of the name defendants so there really aren't unchanged crimes a problem is that doesn't escape the 403 analysis here the 403 analysis is significant because you've got an underlying case of allegedly a postal robbery not connected in any clear evidentiary way but a clear inference drawn by the jury that the same group of individuals where there had been a discussion about post incident with my client Jermal Lewis about what had occurred that night intertwined with this postal robbery what specific evidence was objected to before the district court it was objected I think throughout we had a motion in lemonade was objected pretrial and it was objected I believe at the time of trial um the government argues that that you're evaluated on plain error but even on the plain error analysis this is clearly beyond the realm of what I believe to be the court's gatekeeping function on the issue of 403 and the reason why I think it's important in this particular case is because as I stated before the the evidence on the Hobbes act was so minimal and so tenuous and I agree with with my co-council that in fact a line of demarcation should be drawn in this case it this is precisely the case to draw and limit the excretion extent of federal power into the commerce clause but you're saying they hear about something else that has to do with federal government federal so they put two and two together absolutely I I agree that when mr. Zosmer says the juries are very intelligent I absolutely agree with that and I think that under the circumstances in this case when when you don't have strong federal evidence or federal connection in this case and in fact you have the jury grappling with that coming back with a question on federal jurisdiction which is what they do while they're deliberating when you have that in conjunction with this what I believe to be clearly unduly prejudicial information about the backdrop of a postal investigation it undermines my question do you have a I do have an issue and I want to argue that Brian Anderson this is this is also a very important issue and I want to respond to and anticipate the government's response on a harmless error because I think it's not a harmless error issue here's the question with Brian Anderson Brian Anderson makes no identification of my client the incident occurs at night as you've heard and you've read the record he has 20 seconds to have seen my client allegedly the witness he had personally allegedly identifies as my client according to his testimony but the assailant 22nds who have viewed him that's it three and a half years later he's viewed he's shown a photo array and does not make an identification now this is squarely within the United States versus a manual because in a manual as the court remembers there are two bank tellers outside the courtroom the defendant is brought in shackles to the courtroom no prior identification in fact same scenario neither witness identified in the post-incident confrontation the photo array the defendant in that case however there is a in court identification following this out of court unduly prejudicial out of court identification unduly suggested out of court identification with the defendant being brought in shackles it's no different here the government seems to argue in a very first of all it doesn't argue a manual with respect to my client at all if you look at their response they argue a manual with respect to the show up issues raised by co-council and whether or not the show up identification was legitimate but when it comes to my argument on Brian Anderson they don't argue a manual in fact they skirt the issue a manual is direct now in point in this case what we have was we had a bifurcated motion to suppress it began in December it was bifurcated for scheduling until June we knew on that June date that that motion was not going to go forward we knew that yet the government did not cancel the bring down they had brought in mr. Anderson from out of state he's brought to the FDC he's then transported with the same group of inmates that include my client who had never ever been identified by mr. Anderson before so he's brought over the testimony was this become this becomes uh I become aware of this because I receive a 302 from the prosecutor indicating that in fact oh by the way he was seen in the marshals holding cell and he was standing and talking with the other two co-defendants who had been previously mr. white mr. shavers but previously been identified on seeing by this witness. The government says that was all inadvertent. You're on it actually actually it doesn't matter because Emmanuel doesn't say that the confrontation outside the courtroom was anything but an inadvertent the marshals brought Emmanuel into the courtroom and there was no evidence of a setup that the prosecution tried to arrange this post-incident out of court identification so I don't think it's well over here and I think it's interesting that the government would add this bad faith kind of issue as if it somehow affects the court's decision on whether or not it's under the prejudicial it does not this was a completely unduly suggestive posting to the identification three and a half years later after he'd all I'm sorry Judge I'm so sorry although if it's harmless I mean we do have evidence here we have phone conversations with Lewis suggesting his participation we have everything just in shuranda gaskins testimony as to his statements we have shuranda gaskins testimony about the meeting where they all learned about the speak easy and prepared to rob it um I mean we have evidence here that he was involved there is let me respond and I respond to that precise argument in my brief I give you 60 seconds thank you that in response yeah give 60 seconds now right now yeah very quickly it's not harmless error I agree with mr. zazberg that Ebony just was cross again in a great length she was not a credible witness she admitted to perjury before the grand jury that's number one shuranda gaskins was a jilted ex girlfriend essentially or shuranda gaskins was the one perjury Ebony gist was a jilted ex girlfriend so you had two witnesses that were under mind their credibility was under mind third you have one witness Alberto Vasquez who identifies my client and is absolutely certain without a reason without any doubt in his mind that the birthmark on my client's face was the identifying feature despite a generalized description until cross-addomination when I established that in fact it wasn't in the photograph that he was shown in the photo array and in fact it was a tattoo placed on my client's cheek years after the fact two years after the fact so when he makes an identification it is not a reliable identification he says it looks like number one the prime mr. Lewis and it also looks like like number four so we have right there an instruction to the jury photo right yeah this is the second this is the only other though unduly suggestive is not the first step we have to look at i think if you look at the question of whether i i i i i think you look at the question of of in annual the photo arrays were both shown to the witnesses initially the bank tells and they didn't identify it was a factor to consider the suggestive nature of the adequate confrontation was the marshals bringing the defendant into the courtroom and likewise here my client being putting the cellroom with the two co-defendants and the key witness standing next to them being able to now put it together all that must be the third individual all right we'll hear from you thank you very much well briefly excuse me briefly you're on it with regard to the postal robbery we're in an interesting situation where we sort of can't win we we have to show on your father as i said that there was a reasonable likelihood of an official proceeding that was federal whether the defendants were aware of it or not and here we're told we can't tell anything to the jury about why the federal investigators were even there that's the reason the evidence was admitted it was carefully admitted and monitored by the district court so there would not be prejudicial there was never any suggestion made to the the jury that these three gentlemen were involved in the postal robbery instead miss Brady was the main investigator who testified that she was conducting investigation of the postal robbery it led her to do a search of this house they found cell phones that belong to vestibus or witness tampering exactly and but you didn't argue that it was the official proceeding in the witness no we didn't and we never but we also never argued that these men had anything to do with the postal robbery it was the essential background of how federal investigators got involved leading virtually immediately to an investigation that touched on the speak easy robbery as well so if we if we're denied that evidence there's really no way to prove the official proceeding element of the witness tampering charge there was no prejudice of the defendants though because they weren't accused of anything involving the postal robbery in any evidence with regard to the identification of Lewis it's very important here and i think i heard a bit in the questions to break down what the legal standards are here uh the legal standard there's a distinction as i know the your honors know well between due process which is the government's obligation to not do anything unfair toward the defendant and the the the propriet this efficiency of the evidence the persuasiveness of the evidence putting an identification evidence by itself is not a due process issue it's something that can readily be argued to a jury what mr. Lewis's complaint is here with regard to mr. Anderson is how could he identify me it was three and a half years later i was standing there with shavers and white that's something you readily can argue to the jury and it's a proper issue for the question though under a manual bigger as all these other cases is did the government engage in any violation of the defendants constitutional due process rights that happens where the government engineers an unduly suggestive identification procedure there was no identification procedure this was inadvertent they were they happened to be with a large group of inmates in the same place at the same time Anderson saw what he saw he reported it it was told the jury and the jury could evaluate that we don't get to the due process that's true uh the last thing just a final word on on the hops act if i may i don't think that what mr. hessnecker argued spills over to those hops act questions which i think i did fully address if i could just make one other point uh on with regard to mr. dotty you said um i don't agree that he said we conceded that no proceeds of the bar were taken that's not accurate uh we have argued it it's in our brief uh that wasn't the focus of my argument here but certainly we think proceeds of the bar were taken at more importantly a reasonable jury could infer it from something like 60 or 70 one dollar bills that were found on the two men immediately after they escaped from the robbery these are customers with the bar we don't get proceeds Mrs. whatever upstairs a sleep she took the money upstairs and put it under the mattress and went to sleep or the proceeds well no because here's where we get into the weeds of the evidence miss catch mark testifies that she went to sleep around 3 a.m. and that she didn't believe that any further sales were going on but if we read vast quizzes testimony it's pretty clear that sales were still going on now he why would the customers have and that would because there's there's this fellow named Darrell who is the bartender he's the worker there and then he died and he didn't testify was an available testify at the trial but Darrell is the guy selling and so what did he was his money taken there's no test evidence regarding that given that there is evidence that sales were continuing i'm not saying it's conclusive but i'm saying it's evidence of jury could rely on they could rely a dollar bill seemed like what you'd have in a card game not proceeds except for the fact that we did put in evidence regarding the prices of these drinks two dollars for it be here three dollars no evidence at any of those dollars for proceeds is that is it's an inference your honor and the jury this has changed they got for buying the that's an inference also the the the jury is entitled to make a reasonable inference there can be conflicting inferences and on a pellet review this court is required to accept the reasonable inferences that favor the verdict here you have it you could have an inference that Darrell has the proceeds of the bar you could also have an inference or that there were proceeds downstairs you could also have an inference that all these one dollar bills were held by the customers the jury is entitled to make the decision now again we don't rest on that because in this the last thing i'd like to say we have to keep in mind also this court's repeated holding that the effect on commerce can be potential now the reason for that holding and the reason it's right is that the statute itself prohibits attempt and in fact attempt was charged in this indictment not just the substantive robbery so an attempt to affect interstate commerce this is why it also doesn't matter if the bar closed five minutes before if there's a potential impact that's sufficient businesses robbed but if we if we conclude that individuals only were robbed here i think it's very tough to say that the potential effect on interstate commerce i agree if this court's conclusion is that only the individuals were targeted and robbed we probably lose this case but there is evidence in the record that this was an ongoing regular business that was targeted that they took miscatch more down to the basement asking where the money was and that's why on a pellet review with all respect we don't believe that would be an appropriate conclusion thank you very much thank you last word mr. your honor i would actually i see to my colleagues since mr. sasrism most of his time in response to the the harvester issue i would then defer to mr. donny if you would allow him to respond mr. donny one any last words to leave us with is an interesting and difficult and important case mr. sasr emphasizes that do not catch more may have been wrong about x or y or z but she did state absolutely that she took the proceeds to bed and nobody else stated anything else to the effect that there were still proceeds out there okay you could infer that she's not credible but there's no affirmative evidence the proceeds were stolen um fowler is a is a case certainly important to the witness tampering counts that mr. sasrism has been addressing but i would submit and this is laid out in our reply brief that it's actually not directly applicable there is a subjective element here and that's that the defendant had to have in contemplation an official proceeding thank you thank you places very well argued take it under advisement yo

Legal Case Summary

USAv.Shavers

Date Argued: Wed Mar 21 2012

Case Number: 13-50657

Docket Number: 2598707

Judges:Not available

Duration: 59 minutes

Court Name: Court of Appeals for the Third Circuit

Case Summary

USAv.Shavers

Oral Audio Transcript(Beta version)