were different things and it was the visible statute which is visible yeah yes so if we were to think that that was the right way to approach the statue what w that your client well i guess the way to ask it is not focusing at all on the letter but just looking it at the shepherd dog in the way to the government chose to focus on the threat of bodily injury how is sending a letter which is alleged to be a threat of bodily injury not squarely within the elements that are considered by that portion of guidelines well because  i think is pretty clear that when you're following the modified categorical croce as you just outlined that this is just a tool for what it's really the categorical croce which is to look at the elements of the statute not the conduct of right to defend it so it so we put out of our mind bakshi wetter yes and we look at what was charged because that's a shepherd document we can look at right yes and then they charge that it's a threatening letter that i mean we could pull up the indictment read it but we've all of that it yes how does that explain how that's not what four of you one point one is talking about well it might be talking about that in some respects but we still have to go back to the elements of eight seven six see and see if those if you're looking just at the elements of despair down offense that you're talking about you look at the elements of that pared down offense and the con but really doesn't come into play how about comedy battery statute which is it's not always an issue with a lot of other cases but let me address what i think you're right is the critical question which is does fr question of will call victim frett the injured person a victim street more broadly than threat teams file a physical force against the victim and i would argue that it does in two different ways first of began before the language into the person doesn't rule out non physical injury there's nothing in the language or case law that i could find that prevents threatening injury to reputation or finances which would be without a threat of physical force and these outliers that that you would have as you know the reputation of where these are these are allies how many cases do you have let's look at what the court said in hill you know how many cases you have where you have these unusual types of injury that would you say doesn't fit with the concept i think there may be bodily injury does it not well let me give you a example suppose someone mail the threat and said i'm going to post a sex tape of my ex girlfriend on facebook would it be an injury to force and if you're going to accept the idea that it can be nonphysical injury then certainly there's going to be circumstances where there's non physical force and the instructions for the recipients including orders to engage in sexual conduct in public with other family members and then more recently in the northern district of california and indictment under age seventy six a survive the motion to dismiss w recently recently research after all and some more work but if you're not willing to accept being on bodily injury then you have to look at where there is plain language of the statute in question requires a threat to injure the person or addresses or the person of another the plain language there in the case there has to be an injury to a person and so to the extent you can answer it you have a response is a are you saying that person can only mean the physical person that's a language that's correct and you also have to read it in connection with the word threat and in the stock case this court held with regard to a different statute that another threat statute that has to be a present or future threat that also indicates a threat to a person so again the language here you have to read the word person to include to be part of the statute so i the government's position that this statute the way it's normally charged in the natural way this case has been charged by the government has included threats to harm the person rate that we're hearing  the government has chosen to charge people got convictions when there is there has been no physical harm at all there's been a fake anthrax attack there's  anthrax threats that would involve according to the government i think threat while not threat to the person of another when you're sending anthrax or even fake anthrax threatening directly they're threatening to harm the person of another of the people who would be exposed to the threat now with regard to the reputation i'm not aware of those cases but i don't know that but again the language i would just cite to the plain language of the statute i would have to look at these cases i would say that th means and when something is an element and the third way the mass court said you can determine whether something is an element is to look at the charging documents and when you look at the charging document in this case we charge me a threat to enter  threat to kidnap and therefore that would necessarily involve the fear induced with receiving a letter in the mail that you're threatening to kidnap someone and accordingly it serves the net that issue know maybe you'd lose in any event on that argument but the question the waiver question is an important one it's and it's a new argument that we're hearing with some new citation for support  the course of my preparation and i felt compelled for my clients sake to to raise it and of course the court will deal with it as it feels best thinking all right thank you