that i could go do some last minute christmas shopping every christmas season is busy and this one was no different from the rest and the chaos of the season and some of the household chores had become neglected one of those tours was changing the water of the fish tank we had a bait a fish a three dollar fish we had gotten years before his name was inviolate abigail saw the need and she wanted to help her mommy and daddy so she decided that she would change the fish is water now the thing about beneficent least is that in order to make the water habitable for them you have to add a couple of drops of chemical to the to the water is just plain tap water will kill them but abigail didn't know this so while she did an excellent job of cleaning out the fish tank and all the little accessories t inside she didn't add the chemical to the water as soon as she put violin in the water he died and i came home to a five year old little girl who was beyond distraught you see she felt guilt for what she had done to violet but the timing could not have been any worse remember this was christmas eve and she was five years old santa claus was already on his way to our hell it's a fact that she knew because she had been watching him on the santa tracker since five thirty that morning was convinced that she had just gotten a spot on the naughty list and i set up to go down and i asked her did you mean to do that to violet through saw as she will doubt no and then i said if you didn't mean to do it then why would santa punish you for my little girl looked up at me with chubby tears same cheeks and puffy eyes and she understood punishment is reserved only for those who intentionally do something wrong it is a concept so basic so intuitive that we teach it to our children and they understand it shannon smith will spend an additional five years in federal prison because a jury found him guilty of violating a statute that prohibits possession of a firearm  furtherance of a crime of violence the problem in this case is that the government because of a flawed jury instruction did not have to prove that mr smith intended to use that firearm to further his crime in short mr smith is being punished regardless of his intent and that is the reason that we are here today when i think this case i think about it in three broad categories first the flawed jury instruction second the mens rea a required by the possession statute and third the sufficiency of the evidence supporting the verdict let's first look at the flawed jury instruction now the provision implicated by this case is eighteen u s c section nine twenty four one and what mr smith did was he called a man and he wrote him some letters and the attempt to threaten him out of money he was threatening in the attempt of extorting now during this time he never once made reference to a firearm he never insinuated that anyone would be shot there was no reference to any kind of gun no one even knew or suspected that he had a gun in fact the first time firearms even came into the picture was whenever mr smith was at the drop site with his teenage son and he was on the ground with police above him and mr smith is the one who said i have a firearm it's on my hip there are two rifles that we've been using for hunting tonight there in the car mr smith possessed that far arm legally he had a license to possess that firearm you're not questioning write your own question the additional sentence that is correct the pattern structure that this court has created is i think perfect it almost identically mimics what the statute says that statu jury instruction the pattern jury instruction models that statute so it does have the elevated standard the statute itself does not that doesn't i think that the statute within itself has an elevated standard the instruction is based off of that statute so yes i don't think that the pattern jury instruction requires a c n c or any greater than what the statute imposes but i think the statute itself does require a specific intent that you think this statute does but that our current pattern doesn't require a specific intent i think that no is the short answer it doesn't the statute requires the specific intent the pattern jury instruction mimics that statute so in as much as that is concerned yes it does require a specific intent but if you're asking whether the pattern jury instruction requires a specific intent greater than what the statute requires no i think that they're the same and they both require as i'm asking what in our pattern instruction informs the jury they have to find that the defended intended the gun for the rock what in the pattern instruction tells the jury they have to find  the language itself you must find that the defendant possessed the gun intended to possess the gun in furtherance of his crime and i like that pattern jury instruction i think it's great i just wish the district court would have agreed because the district court whenever it instructed the jury if you look at pages five twenty two into twenty one of the record on appeal you will see that the trial court told the jury the exact opposite the jury instruction that the trial court gave said quote it is not necessary to prove that the defendant intended to possess the firearms in furtherance of the crime charged in count one and that's the biggest problem in this case the statute says one thing the pattern jury instructions say one thing and the court said the opposite and the court said that on the only matter the really mattered at trial and that is why it was mr smith possessed the gun in the first place this cour analysis can begin and end on those jury instructions but if it continues in its analysis the next point that it would look at is what is the intent required by the possession statute now this court has never is specific non theoretical evidence linking this defendant to this firearm to facilitate to further this crime not the government and its response contends that furtherance of is simply a nexus and that the circuit should remove in furtherance of from intent and to that i have two responses the first is i don't think that's accurate and the second is even if it is it doesn't change the result in this case the reason why vast late in saying i don't think it is accurate to say that the next requirement can be separated from the intent requirement is because i can't find that reasoning anywhere in any statute in any case i simply cannot find it i've done hours and hours of research and i can't find that kind of analysis where you separate a nexus requirement from an intent requirement and i think the reason for that is because it there are inseparable they are virtually the same thing it's not a sophisticated example but in my mind i think of it as peanuts and peanut butter you can put the peanuts in the peanut butter you can't separate the peanuts from the peanut butter and it still be the same and yet peanuts on their own that's just not peanut butter and possession has to be in furtherance of that crime you cannot separate out the two but don't take my reasoning my word for it on this reasoning at the united states supreme court has employed similar reasoning in a nexus and intent type situation  has implied lee employed this kind of reasoning in united states versus can't look at the supreme court case it's united states vs i get the cites five fifteen us five ninety three a five ninety nine one thousand nine hundred five case out of the supreme court and in that case the court was dealing with the statute that prohibit i'm still confused because looking again at the circuit pattern instruction i don't see that it requires intent to further the commission of the crime it's unknowing possession of a firearm in furtheran the government must prove the defendant possessed the firearm that furthers the pfister pattern doesn't have the intent you're asking for that in furtherance i think is wrapped up in the intent not just one possession knowing possession and further it i think the whole thing is i think all the intent is wrapped up in that requirement it can't just be no one possession it has that in furtherance of well it can't be but that's what our pattern says it is it seems to me you're asking for the extra c enter and i agree other circuits the can't has suggested that my own reading of it is there's a multi factor test to to look at whether there's something in furtherance it may be that the subjective intent is of that may be factored into but it isn't just purely a subjective it's not objective it's not subjective it's a mix of the two and it when i looked at your closing it looked like you were free and you aggressively argued that hey the guy was just wanting you look at the whole context was the gun loaded what type of gun was it what's his explanation all of that's fair game and that's exactly what came in in this trial that is correct but the problem is in this case is there wasn't any kind of the only thing that linked that possession to the farm to the crime with theories by the government but beyond all of that the problem that we have is at the end of the day maybe we could have said this is how the jury would have held the jury bought this theory but because of that jury instruction that told them they didn't have to prove that we will never know what the jury would have helped so even if the court wants to take that approach then it doesn't matter in this case the result is still the same that was something that the jury could consider had they been told that they could consider it and we have to presume that the jury followed the court's flawed instructions so even if that is the rule that this court in its wisdom crafts but at the end of the day like i say it doesn't matter we have to presume that the that the jury fall of the trial court's instructions but again i don't i'm not seeing exactly why the instruction be wrong the you are arguing that the government always has to prove subjective and t so what the district court was to clarify the government doesn't always have to prove that this individual intended in his head to use this gun or for the crown it may be still that you can argue that among the whole set of factors or jury wouldn't believe  gun further decline was certainly always up to the jury to decide between an alternative theories of ok that are presented but why wouldn't why wouldn't this be a case where they came back they were freely presented with the argument was all hunting that's not what the jury told and that's not what the judge told the jury that the judge specifically limited the government's burden of proof by saying if if we knew your way would that create a split for example the sixth circuit the what is amants were to respond to bailey and to make it more comprehensive not less the amendments i don't believe were to make bailey more comprehensive because whenever it was implying the imposing the amendments congress said we don't even know if they rea would be still found guilty under these amendments so i don't believe that that is what their objective was but at the end of the day i really don't think it makes much of a difference because all of those opinions we're not discussing the specific intent of this provision so i mean it's theoretically impossible to say that this is going to be creating a split on a statute the didn't even exist at the time that these other decisions were handed down and we know that the six are going to would be a problem of the six are going to any event because in the united states versus makea the sixth circuit created a rule that's very much like the rule that we're asking the court to create and it's a rule that by the way would be violated if the governor if the circuit adopts the government's position the government likes to think of the statute a one plus one equals two kind of requirement but that's not what it is you just can't simply have the fact that he knows that he has firearms on him and he knows he's engaging in a crime of violence therefore he has violated the statute that doesn't work with mackey statute but under the rule the government proposes if you were dealing drugs out of a house where there's a firearm out on the wall then under the government's proposal that would violate the statute and adopting that position the position that the government or  the outset to answer a question that was raised recently neither the statute nor the pattern jury instructions as they currently stand require specific intent the in furtherance clause is a nexus requirement that focuses on the firearms objective potential it is not a mens rea a requirement that requires proof of a defendant in this particular case and we're not suggesting that that extra sentence be necessary in every case involving one twenty four c but in this particular case the defense argued from the outset that he did not that smith did not intend to use the firearm in furtherance of the extortionate crime he argued specifically in opening and throughout the case that he did committing extortion he admitted that he admitted that he knowingly possessed the firearms but he argued that he only brought the firearms along as a way to conveniently get out of the house in other words to convince his wife that he was just going hunting as opposed to doing something that he didn't want her to know about and by raising that issue of intent he left a misimpression with the jury that the government had to prove that he intended from the outset to use those firearms in furtherance of this in store extortion a crime that was in misimpression that the government wanted to correct with the jury via the jury instructions so in this particular case because of the unique lack was the statutory language sufficient just because of the  specifically state that the government doesn't have to prove intent it certainly doesn't state that the government has to prove intent but because with such vehemence the defense made that argument and left the misimpression with the jury that that was something i mean their entire case rested on the contention that he did not intend to use those firearms in furtherance well that's not something the government has to prove well that the crime here is the extortion the demand not going to get the money how he's taking a farm to pick up the money when you've been hunting with it you don't expect anything to be there when you pick up the money has and further it's making the threat several circuits your honor have recognized that although all of the elements of a crime have been satisfied for purposes of establishing an indicted war fence the fence itself is ongoing for purposes of nine twenty four c the third circuit the second circuit the eighth circuit all of them have recognized that explicitly in the context of for instance bank robbery and they've all said when addressed with precisely that question that even after defendant commits bank robbery and has  he is fleeing if you use a gun only during that flight phase of the offense that supports that nine twenty four c conviction here it's even closer he hadn't even can that committed the complete offense in the ordinary understanding of the term in the sense that he hadn't even picked up the money he had delivered the extraordinary threats he had committed the elements have been indicted on fence but he was on his way to pick up the money that was the proceeds from that explosion and it would it would really torture the common understanding of what a crime is to say that the crime was over even though he was on the way to pick up the proceeds and canute it doesn't the crime was over but that the threat if the crime is a threat it has using just logically it seems did and then the nexus requirement is that the firearms were possessed in furtherance of the crime and here if you look at the factors that this court art articulated in some biased taurus although that was a drug case many of them still apply here the  firearms furthered helped forge or advance the crime because as he was going to pick up that money he could encounter the very real possibility that the victim would be present he ordered the victim to drop the money off just one half hour before he went out to look for it so the idea that they would have crossed paths is extraordinarily likely possibility here and there is the possibility of course of the victim would not have been alone that he would have brought some sort of back up friends family what have you had the gun to come to prepare for that eventuality had the victim been there he could have used the gun to intimidate the victim to threaten the victim further to ensure that the victim didn't have second thoughts and turn the money over to him he also had the gun available to him should anybody else have happened upon the money why isn't all why are all these arguments just flushed for closing argument with the existing pattern in it's sort of the flip of the same question as to posing counsel when i read the trial record closing argument they fully and easily argue that he didn't intend to do anything but that was fully presented the jury may not of believed it but likewise it seems to me very strange that the government would ask for this extra sentence because when i reach the bios it does have the language about a trafficker the just possesses a gun would have the purpose that's necessary so so here my friend that is a question when you asked the district judge to modify the pattern a did you give any law post amendment to support that sentence i believe what they cited for the request was the wilson case i believe if i recall correctly what they cited but there is a great deal of law post amendment that would support that if in the past in the best cases one post amendment from our court the best case is a purely objective test i think i would argue that the best cases of bias in all of it just read the sentence that seems intention with that nor will a drug trafficker engages in target shooting or hunting likely violate the law by keeping a pistol for that purpose that is otherwise locked or inaccessible it just seems like it's a multi factor task and several of the factors would be what did the in the defendant intend to do and i would argue that that sentence turns on the fact that the gun is locked in inaccessible when we're dealing with the drug crime but it's talks about the purpose it allows the defendant to present to the jury his purpose and my biggest worry with you besides deviating from the pattern is if we were to accept that with the government be able to file a motion in limine a in future trials and say defendant can't even mention to you jury that he was hunting that's irrelevant as a matter of law no i don't think we could say that i don't think we could file that emotion but that but the add on is it is not necessary for prove the defendant intended to possess the farm and further it so i would see the government right away say well you've amended the pattern and pursuant to that we want to keep that out the facts that can support an inference about in furtherance are different then what the law requires the government to prove and the first circuit actually recognized that explicitly in united states persons felt and it recognized that objective factors can be circumstantial evidence of intent and vice versa intent can be circumstantial evidence of objective ability no i see the law but how why doesn't this instruction make it because the instruction allows the parties to present the factual evidence and argue in favor of whatever inferences the jury might draw from those and that respect the two can be separated i would point the court to a very similar statute eighteen u s c nine twenty two g which prohibits possession in or affecting interstate commerce and this court has explicitly held in the united states versus rose that the nexus requirements in or affecting interstate commerce is not one that requires proof of intent and it's a very similar statute in construction to one twenty four c both in construction and purpose it's a very similar statute but in both cases the nexus requirement is separate from the possession requirement which does require intent and the nexus requirement does not require intent and that the court has been very explicit in united states versus rosen and several other cases with respect to nine twenty two g with respect to nine twenty four c the in this court has been rather explicit prior to the amendments with respect to the very similar nex all i think the sequence of events is important here if in fact he had been if he had conceded that he was hunting prior to the offense and then ended his hunting trip with the guns went and looked for the money with the intent to have those guns for self protection while he was looking for the money if you can see that that much then the hunting would be irrelevant but he didn't concede that his claim was that he was hunting throughout that he had brought his son that he only brought the guns along for the purpose of hunting that he had no intention to use those guns during the search for the money and in fact that that was just an incidental thing to use that goes in to search for the money is irrelevant so why would that evidence come in whether or not he intended to use the guns in furtherance of the offense is not something the government has to prove it can be circumstantial evidence of whether or not the nexus is a requirement is the nexus requirement is satisfied the the first circuit recognized that in united states states versus felton it is said that even even if we and the first circuit has not decided this issue in fact they explicitly stated in united states versus felton that they're not going to decide whether this is a subjective intent requirement or an objective potential requirement because in that particular case  that's an that's an approach your honor but again as as the first circuit recognized in felton that evidence could be considered by a jury if we're looking at the objective potential in fact in and felt in the court said specifically that quote if the test were strictly objective and focused on the firearms capacity to advance the crime the defendants confessed purposed to use it would be evidence of feasibility so they're saying that even if we have a purely objective test the defendants an intent in this case intent to cheat by a confession that intent is still evidence of feasibility which would be an objective consideration so we believe they can make the argument that he intended to use the guns purely for hunting that might go to the objective issue of feasibility whether or not the jury buys that argument it's up to the jury circuit the the feltham case fall their pattern instructions  extensive comments in those comments embrace our suppliers decision but in a bracing it they say this is subjective and objective they all come into play and so i'd say this or predicament we're in is it seems to me or maybe that the instruction add on the government got is gearing further towards objective only but i'm not convinced by opposing counsel that we should make this a specific intent and on either pattern to me look pretty darn good as it was allowed everybody to argue everything subjective and objective so what do we do if we have a sentence that's some of us maybe seeming to objective but we aren't in agreement with opposing counsels or we should clarify  how we analyzed structural circumstance here i think in this particular case there was a unique argument made throughout the crime throughout the trial about intent that this add on to clarify amiss and pression that have been left with the jury that's not going to be the case in most circumstances where the patterns are have where the government can get add ons to do its work for us as to impressions where you entry grounds of the evidence is there the jury can draw inferences you can't correct them i can't think of a case that allows you to get instruction at that point it wasn't a factual misimpression left with the jury it was a legal mis impression up and i think understand your argument i guess what i'm asking is are you saying even if that sentence isn't correct or a propre revision of the pattern here after that it would be harmless if you made an enormous argument in this case we have a brief to harmlessness in our argument your honor but i do believe the harmless arse argument would apply here of course because the evidence was overwhelming and whether you're looking at subjective intent or objective potential as the again as the first circuit recognized felton the same set of facts lead to the same set of conclusions in either direction here this court has recognized on many occasions that the district court has broad latitude in crafting jury instructions of course the jury instructions have to be an accurate statement on course our contention is that this instruction was an accurate statement of the law whether or not that particular add on would be necessary in every case we don't contend that it would be it was simply a unique situation here to address a very narrow argument and it's important to remember that the defendant was not defending across the board in this case he conceded that he committed the extortionate offense in fact he had already pled guilty to that offense he conceded that he knowingly possessed the firearms he conceded that he had the firearms knowingly with him while he was out looking for the money so the only issue here was whether he intended to use those firearms in furtherance of the extraordinary crime and because the defense raised that issue and suggested that the government had to prove that he intended to use the firearms what gun what if they'd only been one gun and it were a hunting rifle and it were unloaded in the car would you still get that instruction jury you don't the government doesn't need to prove the defendant intended to possess the firearm in further crime because then it would look like to me they might convict him on the pure hunting rifle in the back of the car based on that sentence would that be an appropriate conviction i think we'd have a different problem if that were the circumstances i think if he only had one hunting rifle in the back of the car and the evidence were such that he was in fact out hunting before looking for the money and left the gun in the car while he went out to look for the money i think would have a factual scenario that simply made it harder to convict him and they could certainly argue whether we're looking at an objective test or subjective test this gun in the back of the car did not further the offense he left it in the car while he went to look for the money he was genuinely hunting beforehand that's what the gun did was they come out with any questions where they can is there any evidence in the record they were confused by did the jury ask any questions to class i don't believe they did your honor and it was a fair it was a fairly quick conviction but over the court reads into that what i heard you just say is that the whole point of the trial was determined if he had the intent to use the firearm in furtherance of the crime and then you just said that the government didn't have the proof didn't have to prove that he had the intent to use the gun in furtherance of the crime why didn't the government have that burden of proof if that's so logically and you're you're confusing the government's burden was to prove that the firearm objectively further the crime that was are being or you've got you used the word intent in your argument i did and i was referring to the argument that the defendant made the dow then he said the only issue in the trial was to determine if he intended to possess firearms in furtherance of the crime i apologize said the government didn't have doesn't have the burden to prove that he intended to possess so what was we do have to prove that he intended to possess and we have to prove that he knowingly possessed the fire and that's that's absolutely absolutely a requirement but there was no other interests of the crime we do not have to prove that he intended the firearm to further the crime he made that argument and i apologize if i were to confusing that he made the argument from the outset that we did have to prove that we disagreed and we argued that the firearm objective lee further the crime we also asked for a jury instruction to clarify that legal distinction but the factual issue that the government introduced evidence about was whether or not the firearm objectively further the crime and the evidence to support that was that he had a firearm in his waistband while he was looking for the money in order to deal with any circumstances that may come up for instance the victim being present on the scene on foresman arriving other individuals coming we're talking about half a million dollars that he's expecting to find in a remote location and that firearm was on his waistband in order to allow him to obtain or defend that money or any other circumstance that might arise in common expectation when one is dealing with such a large sum of cash at the conclusion of an  what do you do with with ms claims hypothetical about an antique for a minute on the wall she says that your argument would extend even i don't believe it would your honor and this court has been clear that an antique firearm on the wall that is not in a usable condition would not further events we would agree that is an objective consideration an antique firearm that can't be used that doesn't by its nature present any kind of intimidation or threat or threat of the use of force because it's an antique firearm hung on the wall and someone's not going to perceive that as a threatening object by an objective analysis that does not further an extortion an offense that doesn't afford the not usable it's different from a rifle that's three pieces that's not one and in the united states versus charles this court found and i apologize if i'm misremembering the site but but the facts of the case i believe i'm remembering correctly said in our briefs that case this court found that a disassembled firearm that could be easily reassembled that was also located near drugs in a storage locker was possessed in furtherance of the fence and  firearm is a different thing because it can't be easily rendered used to we know that well that would be a fact for the jury to consider and if it were an antique that were usable then it would be a different scenario than the one that the court articulated in so bias these are all in the court articulated a broad factors to consider specifically in the context of nine twenty four c and drug dealing which is a little bit different than than what we're dealing with here but those factors would be ones that one  could consider when one's looking at an antique firearm that it's stored whether it's usable whether it's accessible whether it's loaded that was a factor that these bits of speeches specifically articulated these are all objective factors that the court here's the problem with the government position it takes power out of the hands of the jury it additionally essentially writes out in furtherance of requirement from the statute and from the pattern jury instruction that's the tension that this court i believe feels with the government's position object of test there wouldn't be any harm in the instructions that  i think there still harm in that instruction because that instruction is the opposite of what the statute says and i think that to to rebut what the government's contention is the evidence in this case was not overwhelming every single theory that the government provided to explain to somehow connect those firearms to that threat was theoretical and it was either not supported by the evidence or flatly contradicted by the evidence but you know what at the end of the day when you say everything was going to dictate when he's walking towards them what's that going to be when he's with mr smith that that he doesn't know was that pistol loaded i don't know i believe it was there was testimony that that was the firearm that he carried on him consistently every single day and that he had for the past eight years what with the introduction in this case because this instruction was the exact opposite of what the statute in the pattern say but to the extent that the court chooses to adopt some kind of analysis that has both objective and subjective factors in it i think that in the context of this case we would still prevail and i think at least that would in some way speak to the specific intent if you have both subjective and object of factors that you're considering if this embrace that that it is the gun it is in furtherance if a mix of objective and subjective factors can show further it's of the crime and so that add on correctly would say the government doesn't have to prove specific intent not in the statute not in the matter but it doesn't exactly say you can still argue that the whole set of multi factors we've done a finds a bio including the state of mind of your client or relevant to assessing whether objectively a gun is contributing to the fact that add on by the trial court does not do that and that i don't buy saying subjectively god doesn't have to prove what's in the mind of this man but it's still the pattern saying you have to find this gun further did and in connection with whether a gun furthers you may consider all factors including the state of mind of the individual i think that's sort of what they were trying to circle around to it may have it may have then but that's not what the instruction says it's just not what it says no matter what way you analyze this case by what kind of what kind of rules this court craft and its interpretation of the statute at the end of the day everything comes back to what the trial court told the jury and what the trial court  jury with the opposite of what the statute says with the opposite of what this court's pattern jury instructions are accordingly we asked the court to reverse the conviction and remanded for further proceedings in the buffalo thank you for thank you mr clayton your taste under submission we noticed that