good morning may please the court my name is andy nelson i'm here on behalf of the appellant co robert wick i'm an assistant federal public defender in the missoula division of the month in a court we're here today on a following a trial mr wick was charged by superseding indictment with twelve counts twelve distinct criminal counts eleven of those the title twenty six counts we call the machine gun counts that's how i referred to them in the briefing the final count the sole count a conviction in this case and the reason we're here is count twelve which was charged under title eighteen and basically says that he manufactured and dealt in firearms as defined in federal law without a license definitions of firearms and machine guns in titles twenty eight twenty six and eighteen are different that the language of construction of animation of moving from incomplete to complete appears only in title twenty six in the jury acquitted mr wick on all of those counts so we have no finding in this case recognizing that it's hard to decode precise jury findings based on a verdict it's not like a civil case with findings of fact but what i can say unequivocally is that there is no finding in this case that there is any machine gun at trial presented as evidence at this trial does it does it rest really on the re converted phrase i think it does your honor because that's where the district court and its order based its decision on that language the red eye is not looked at your prefer i think it was your proposed instruction did you represent i did right that's why i did say mr nelson yes in the transcript and your proposed jury instruction there didn't define readily converted that it well you know there is a there's a provision in the model of the argument was that phrase doesn't apply and it doesn't apply for several reasons one is the government's own firearms expert mr curtis whose testimony is quoted somewhat extensively in the brief and we have the advantage of a trial record  here didn't rely on that phrase in fact at one point and i probably put this in the briefing too often because i wanted to make the point he specifically disavowed that language he said that's not the basis for any of my opinions here whether something is a machine gun or a fire statute and that's the lens through which i'm looking at this but it was that testimony regarded how long it would take to assemble the pieces of the receiver section that's really the focus of the charge the investigation the trial everything in this case was about those receiver sections which is like the body of a car to which all the other parts are appended and then make it a car or in this case of a gun right so that that testimony was about how long it would take someone to weld those back together yes your honor that is in the record but that language the readily be converted language importantly and i think determinant of lee doesn't appear in title eighteen we don't have that phrase in the  sorry that's not right what yeah it's right in there in the us let me let me phrase it differently title twenty six talks about combination of parts from which machine gun can be assembled all that animating those verbs and phrases are in title twenty six and not entitle to eighteen is the title eighteen has its own way of of referring to that then does the problem for the government i think based on your question is that that's not the case they tried to the jury their agent curtis never said this could readily be converted in fact he said i'm not relying on that phrase i mean it's an odd case because you have an expert coming in and telling the jury what is and what isn't a machine gun or a firearm under the statutes clearly the jury at least in part disagreed with that expert's conclusions as to the machine gun counts they acquitted him that's what makes this case  question on that please does the fact the jury acquits and says it's not a machine gun does that really say anything about whether it's a firearm couldn't something be thought to be not a machine gun but be thought to be a firearm could a jury be making sort of a compromise because they didn't want him convicted on all the counts that's that's a great question judge certainly those universes of what is a machine gun and what's a firearm overlap and that's explored in the briefing  the jury wasn't equipped to make that decision because the language doesn't appear in title eighteen there is a lot of pretrial motion practice about what exactly is the charge here what's a machine gun and what's a firearm and why  waited through that whole morass just to get to trial and say ok here's the charges these are machine guns these are firearms mid trial the district court was pressing the government to say which of these items of evidence go to count twelve the firearm count in the in the middle of the trial the government was saying well these two thurstan items exhibits twenty three and twenty four are the only two by the end of the trial they're saying everything in the implication is there's this universe of guns and all these things in the jury can can conclude some of them are farms and not machine and but the problem is the tropics was extremely limited and that's explored in the briefing as well so i think our core contention is the district court's error was not directing a verdict on that count because of the legal complexity  part of that issue the jury couldn't decipher what was and what wasn't the expert is telling them on the stand i'm not relying on converts at all how do you how do you figure that the jury couldn't reach an informed decision they know enough to drop out a leaven fine to quit right on eleven out of the twelve so it seems to demonstrate they could tell exactly what was going on i see another good question they weren't equipped to make the distinction between title twenty six and title eighteen think only one's got some around it's a thicket i mean that this this it's the flavor this case sort of this is this because we say it isn't this is that because we say it is injury said something along those lines when they acquitted mr wick on eleven counts and i think that has meaning and has legal meaning so let me try to answer the question better could could the jury have found that some of these items were firearms and not machine guns i think i take that to be the essence of your question my point is not on the conver language because the expert says no the government explores this alternate theory about the designed the first prong of nine twenty one and three the problem there is that isn't the case they tried there's no testimony about  design the nature and number of the other parts that you need to make a functioning weapon were was extremely lacking they weren't pursuing that theory that wasn't important to them at trial so we're kind of constructing this backwards in time and so and that's all in the brief two did you want to save some time for rebuttal i want to answer your question so if you don't have any more i will but i'm happy to stand here and i don't want to want your honors made please the court my name is lee johnson for the united states so nine twenty one eighty three a at issue here is the definition of firearm and it includes three sub provisions first that gun will either shoot or it's designed to shoot or it can be readily converted to shoot and i position is that we've had sufficient evidence in this case of all three of those sub definitions three of the his client and those guns were simply fired and then the mysterious gun was a complete gun that was simply assembled and fired so on that basis alone we have will shoot turning to the readily convert pro t of the statute i would point the court to judge mchugh ruling in the t r w rifle case which indicates to us that in fact the title eighteen provision does anticipate the assemblage of parts and in that case this court held that pulling together two halves of an m fourteen rifle into a sort of a hybrid semi automatic car being could be found to be readily restoring a fully automatic rifle if that semiautomatic carbin could be further modified with additional parts and labor to shoot automatically and in in that case the court held that readily restored was two hours or so and in that case the court exam of the term readily which we think has the same meaning in title eighteen as it has in title twenty six so here the question is could this gun or could these guns be readily converted in the testimony at trial over and over again was that with the addition of a single weld or two depending on how many cuts the defendant left in these firearms they could be converted to fire within thirty to thirty minutes to two hours depending on whether it was one or two cuts so given the t r w rifle case and given and we would simply ask the court to apply that same reasoning here if you use the dictionary definition of converts rather than restore i think i was looking at webster's and webster's the i think the appropriate definition would be to change from one form or function to another and in the context of the statute that would clearly mean taking something from an inoperable state into an operable state in which it can fire a projectile finally we have the design praga the statute which we argue in our brief and i just wanted to point out for the court there that the evidence on the design prying was quite strong as well given what the the defendant himself said about these rifles and in the record at exhibit four mr witt made all these statements in his advertisements on gun broker dot com and this is part of his cross examination testimony at trial but the exhibit also came in and it basically is mr wix saying look these are kits that you can finish out as a gun you can finish them as a semiautomatic or as a as a machine gun you can finish them out and you will appreciate how the mill the feed ramp uses ammunition he's essentially admitting in these statements that the design of these kits is to be put together and shot and that's really all that design prong of the statute requires i think actually the reason we argue designed first in our brief is because it is a little bit broader concept than the readily converts sta of the first part of the definition but in any event in this case there's complete crossover these these gun kits were both designed to shoot and they could readily be converted to do so to get your question judge about the acquittals and what effect that may have had and how that could sort of be explained i would i would ask the court to look at the statements that the defendant made in his interview and there in the record at page five ten to five twenty the defendant really did a nice job of protecting himself in his statement on the title twenty six charges he basically said i think you know i was trying to do what was legal here he had some interactions with the gun broker dot com and they basically told him you can't have one cut you have to have two and so he adjusted his practice he was trying to sort of not sell machine guns but at the same time those statements while they may have helped him on the machine gun charges with the jury and certainly must have he he essentially admits the title eighteen charge because he says in that same statement that this is his business this is what he's decided to do he quit his job he took a welding and that's what he does he remanufacture these formerly de mille kits they were useless and he remanufactured is them to the point where they can be put together readily and shot and so by making those statements it's it helps explain the verdict and how you could have a conviction on a title eighteen charge and not on the title twenty six charge it may have been a compromise but i think in the in that light it makes some sense your honor and finally i guess i would address the between simply manufacturing and selling a firearm as opposed to machine guns which is a much more serious charge if the court has no questions i will sit down and think  well i'll start with the notion that this is sort of a compromise verdict the problem with that that is there's no language in one twenty one a to get them there so it's a matter of statutory construction the district court there was allowing that count to go to the jury in the first place i want to be clear on the record there the government did not test fire these guns that's not how they charge this case only two or test fired well into the prosecution those are the thurston items twenty three and twenty four the testimony there is not controver whitwell did the receiver sections that that client got from other online vendors together in his garage for a nominal fee i think that's the government's best argument that there's a factual basis for count twelve they don't make that argument but i would say the a carry occasional repairs language in the jury instruction f twenty five covers that that's the reason we even raise the second issue in case you decide the case that way so the design idea is interesting but the record reflects from the expert testimony was all these are uzis every cousy was manufactured in israel originally to come into this country legally they're de milled chopped into pieces so at some point the design function as a line is sort of cut off i mean you can move them back that way but under the government's construction of that phrase in the statutory definition all of those the mill that was the receivers would remain title eighteen firearms or title twenty six machine guns i suppose because they were designed to shoot so there are some there are some problems with using phrases that the jury didn't rely on if you give me ten seconds converted is a term of art it usually means from roughly co equal states all the classic example in the cases is you got a starter gun where you file the pin down or you take a semi auto gun remove the blocking bar and make it fully automatic that's usually how converts is used it's not used how everybody wants it to be used here including the district court thank you thank you thank both of you for coming over from montana and for your arguments this