question the government contains that this claim is not adequately preserved it's our position that there was a pretrial motion to dismiss the indictment and although the indictment was catching the motion to display to dismiss for duplicity in the body of the motion itself it argued that the indictment failed to provide sufficient notice it lacked the specific threat that was charged it was ambiguous and so our position that our case based on cases like united states versus pyaar is along that the claim is adequate preserve and that this court should review to know with respect to the merits of the claim it's our position that this is the type of offense that requires more specificity in the indictment that the actual threat articulate many many statements within the course of the day with what i thought the government charge a course of conduct that was happening some of it involved woods some of it i must say your client certainly was very smart and this words and actions should have been alleged me and i why i don't think that's what i don't hear the question to be asking that it's a it's a sequence and i think there are three different stops along the way and the threat keeps getting repeated right but it's the all three threats or are allegedly threatening comments the jury believe can happen it over a course of that's the that's the series right but it's a pretty compact timeframe it's not like over a long period of time it happened one day it happened probably within thirty minutes or something how is your client at a disadvantage or or surprised well we had one example is we have both a what i would call a direct threat theory and then there's extra mile incomes an indirect threat theory that he said something to the neighbor well what difference does that make if he's saying the words it's not like conduct in the sense of threatening gestures it's words your client uttered in three different stops right the driveway and down the street and into neighbors i mean i'm summarizing but what was unfair to your client about any of this and why would it be a good idea for us to enter an opinion suggesting that this should have been three different charges that's what i think you're arguing no i'm not arguing three different charges i'm just arguing that if you want to charge on one count fine ok but then allege what is the specific threat or threats whether it's conduct or whether it's verbal of conduct alleged what it is in the count in the one count so you can allege three what they could have done based on the way the case went to the jury is they could have said one count threat number one is telling the neighbor that he kill someone the points a gun at him threat number two is when he stopped at the stop sign and said next time you're dead and threat number three is when he came back later and told the neighbor again i'd kill someone points a gun at me so what we are should i look at to see exactly how it was charged where you think that it's the indictments insufficient well the indictment you are so i can turn to quickly ok the indictment that's it and so what i what i propose is that in addition to what they put in that in that there be a two week clause which we see for example in a false statements charge what they typically will do is say the defendant committed a false made a false statement in a federal proceeding on this particular date to which here are the two false statements of the three false statements or whatever it may be and we just don't have that in this indictment and what is the what here in the context of threats that they can do one count but just specify what whether it's a conduct or whether it's a verbal indication what is  well you can't cure again if the grand jury doesn't file the charge he can't cure it with a bill a bill of particulars just because the government or a judge want to say ok we're going to trial on these three threats if the grand jury didn't find it that doesn't cure the prejudice because you've now been tried on a charge that the grand jury didn't file so that that's the problem there isn't a prejudice analysis here but if the court thinks that somehow you have to show prejudice in addition to what i just said we have a situation now where it's our position that for example the third thread where he comes back afterwards and asked says to his neighbor did you know that guy do you know his name in the neighbors has knowledge as i'm going to call that guy supervisor no one points a gun at me i'm  kill him well how that could be sufficient evidence that he intended to threaten the officer to interfere with his official duties when the person he's telling this to says i don't even know the officer is that he estimate ten that the threat be communi indictment you can't that's a union instruction can maybe cure duplicity so for example if the indictment had alleged the three threats that i'm saying then the court could have given a union a mini instruction and then this court would know ok the grand jury returned an indictment on these three threats and we know that the jury unanimously agreed as to as to at least one of the three threats but the problem here is that we have no idea what threat the grand jury returned an indictment on and the union instruction it just tells please the court kathy palmer united states the defense was arguing that the indictment was duplicitous apparently that is waves but because there they seem to have abandoned it here but i would note that this court has repeatedly held that in in the interest of linnet he lenity an indictment should not be split into three separate counts where it could be charged as  and that's right and i read his briefing to be suggesting the contrary but today he corrected me and said now what he really means is that there should be more specificity about the threats because there are three different threats right and judge kozinski is asked a question about the three different threats  a continuous really one incident because it's over a pretty compacted period of time it's not there different days or different weeks at least i think that's what he was asking and that's sure my read of this so is there something in the record that tells us how long the sequence of events took back about fifteen minutes after he was pursuing the officer and so when he was pursuing the officer of course is when he was first yelling out the window and said to mr seren mr how i'm going to kill him if anyone points a gun at me i'm going to kill him that he followed him and then he said next time you're dead and then he came back and said again that he was going to kill him ok so defense counsel's argument today i think is really goes to the the most generous interpretation that i can think of as it goes to this third incident that you're just referring to because the indictment doesn't specify the three different even that there were three different threats and then it says as you know that he threatened to assault or murder a federal officer with intent to infere interfere with c well while c e was engaged in the performance of his official duties that third threat that wasn't made directly to the officer but is made at the end of the sequence officers i think heading back to he's getting out of dodge i think he's heading out or getting out of there  is there if the grand jury had indicted on that would he have an argument that this is a different you know just even going to the elements it would be a different defense no your honor the jury was instructed that eighteen is the is this threat instruction and in that front instruction the court informed the jury that they could that it's not necessary that the government prove the exact words of the threat and that law cannot communicate the threat directly to the intended target the end of the threat only by third party is sufficient if all of the other other elements have been proven beyond a reasonable doubt right but what he argues is this this last clause and i didn't make that clear forgive me but about that the intent was to interfere while he's performing communicated well or was he didn't have any way of knowing whether c was still performing his duties i think that's the argument yes it's a creative argument your honor but i think considering the instruction i just pointed to the jury's supposed to consider th his official duties that's correct in fact the officer did testify that when he was he went back to the forest to continue investigating the trash dump and indeed there was also evidence that the defendant saw the officer talking to these two neighbors when he got in his car pursued him the officer was talking to them and he saw that the defendant was right behind him and then finally there was also evidence in the record that these two witnesses did in fact communicate the threats to the officers so the jury had all of that information this was not an issue this third threat theory being insufficient was not raised below so i just also like to point that out and then  one sixty to one sixty five the government's proposal and the defense objected and said the only possibility is an election here they refused to try to explain what the threat should be and that's it g e r one seventy one and one seventy two and so the court ultimately adopted the defense's unanimity instruction was no one you're right it's rights and so now saying that it's not clear what the jury convicted on  be disagreement amongst judges when they're looking at the record and so it's very important to put that fact to indictment here murder assault can be said to be the topic of inquiry any statements relating to murder or assault the defendant would be on notice and any argument that he was not on notice notice is the live by the fact that in his motion to dismiss he tells the threats he had discovery he didn't that such statements must be pled there was there were binding holdings or persuasive authority no court has held that the actual words of a threat or the classification of a threat actual threats weren't pled in robin there was a single threat to kill that involved three different threatening statements and to kill the president and that's a fifth circuit that was not required and then of course the government cases where there are different threats made in different locations was a series like here yes well in class and in robin in class at there were threats over a six month period they were directed towards two different persons there were  mails letters and also threats to personnel at the court to be conveyed to these other people and even though that was over a six month period the court held that that was sufficient and then raavan there were three threatening statements i'll be quick the i think the false statements cases are a good analogy because there isn't a background first amanda principle here which is that a court has to make an independent evaluation about whether something is a true threat and so when their statements are at issue that is why i think the courts are requiring greater particularities in the indictment and that's why i think there should be greater particularity here and then just one final point on the record why does every thing that goes into it have to be when i agree if the indictment said he threatened him by doing things by doing this by doing that that would be a great indictment but we don't we  has said some offenses you don't have to do that you don't have to say the various things that make up the specific theory of the case but there are other types of offenses where there is a greater there's a requirement of greater specificity and in this type of case and just as an example if you read this indictment i'm not sure what what does this type of case read what does the universe of cases you're talking about i think that  yes and i think that there are two critical reasons why one is it's based on world statements of the defendant and two there are background first amendment principles involved that the court must make an independent determination of whether something is a true threat they can do that or they are there are cases where for example one of the cases they rely on which is unpublished i believe involved a mailing a specific mail and it said that the senate mailed this particular item which was a threatening letter well in that case you know it's this mailing that is the threat in this case when i've given anything we're just saying that he threatened him on this day and that's it and to lead this indictment and think that all what they meant was when he came back several minutes later ten or fifteen minutes later and said to the neighbor do you know that guy i know you don't know him well if someone points a gun at me i'm going to kill him to think that that was a threat to interfere with his official duties and that's what the grand jury actually found  based on this indictment is is surprising i wouldn't read that indictment and think that that would possibly be the threat that interfered with his official duties and that's the problem is that the jury could have very well returned conviction based on a charge that was never found by the grand jury and the defense did move from rule twenty nine so they did they did preserve this issue they moved for