reserve two minutes for rebuttal this case sheds light on two of the most basic tenets of our american system of criminal justice the first is that we don't convict people based on who they are or the fact that they have a horrible past or that in our judgment we think they are immoral people are our social contract is that you answer for the crimes that are charged against you and you are required to respond to those specific allegations a second principle that's fundamental and has been implicated in this case is that we only take away your liberty if you have a jury who has been adequately biased of the facts and is given a clear and accurate understanding of what the law is the reason we're here this morning is because it is our position that neither of those principles were honored in mr kennedy's trial as to the first point begun from it here it made it an incredible amount of forum for be evidence that had very your defense counsel says the only issue is going to be whether he made it a destructive device he admits all the elements that we've stipulated to he's already pled guilty to possessions of chemicals relating to this case and that's what the poor old for be evidence was was in the chemicals and things wasn't hasn't he already told the jury about it your honor so yes the defense position below was that this was a very very narrow issue for the jury what he also admits to the jury when was talking to them that he's pled guilty to the position of the chemicals in those things that make the bomb so were the error by introducing those things since he's already stipulated to our position that the sheer volume in the nature of the evidence that was emitted by the government really far exceeded the scope even of the crimes that he pled guilty to and frankly don't those so i am just saying it seems to me that we can for the evidence argument quarter well i would disagree your honor the reason for that is that this was a case that involved in a simple device it was already it was already put together in a way and according to the government's theory it had performed in the way it was intended to perform and so really the only question before this jury was was the one of intent and so to your point if everything else really technically wasn't at issue in the case then there really was no need for the government to proceed with the  this was a device that was the intent so the and so we believe that under doubt he has intent was not relevant at all to the analysis of whether the device was destructive as a matter of law and you  you whatever he may he intended to make there's no question that he thought he was making one thing and made something else that you took responsibility for whatever it was that he made and the only question says when you're dealing with a case that involves component i mean when you're dealing with a device that is already a question of the defendant subjective intent doesn't matter does not matter at all and this is important because intent was one of the reasons that the government  pretty pretty nearly to what was really at play in this case and so on the defense proposal the instruction would have simply rid this device in order to be destructive has to be an explosive bomb it would have taken all of these other options of the statute off the table it also would have removed the the language in subsection f three relating to the fact that a device could also be assembled from component parts the way that this case was prosecuted below was obviously always as an f one case and the government never want to deviate from that theory from the very beginning their theory was this is an explosive bomb they made that argument in several different places and so based on those representations by the government the defense proposed an instruction that that really narrow things down when the discussion happened on the record it was before the jury had actually been charged and it was clear that the court was not going to accept the defense proffered extra instruction and so what the court had presented to the parties was basically these alternatives that also included the three language and there was some agreement between the government and the defense that if that was going to be the version that went back to the jury they certainly needed to be consistent because in obviously in this instance the definition of destructive device was relevant to a number of different charges that the defendant had faced and so it should have been consistent charge but it was far from that as i've indicated in my brief the way that the court presented the instruction in one part made it such that it gave the jury basically a choice of incendiary and so forth they didn't qualify all of the remaining elements they had the jury instructions in writing they did have a copy of the instructions in writing and how why is it harmless that  particular error under the circumstance that they convicted of the properly instructed of that has the same elements as the one that may have been confusing in this particular analysis i just think the fact that well first of all the jury returned a guilty verdict on all the counts and so i don't we don't have any reason to believe or any indication from the record that they apply  the properly given test as opposed to the improperly given one i mean there's nothing here to indicate and i think that's part of our point is this if this was not a case where the information dispute was really readily available to the average person this was a technically specific case and it involves some things that are just beyond common knowledge and so in that kind of instance i think it's more important than ever to make sure that the jury has a clear charge in the inaccurate charge that they were given just made their burden a lot easier so there's no reason to believe that they used the properly given instruction as opposed to the improperly given instruction frankly i think there's reason logically to believe that they would have used the going to restrict my argument to the to the four four b unless the court has specific questions about sentencing i just want to point out that we didn't there were the evidence on the floor fo b we think was significantly prejudicial for a number of reasons it was in many ways more damning then than the evidence that was actually pertinent at trial i mean this involved a box basically  box that was set outside of a parking lot of a hardware store at the time of closing and really whether or not that that that device itself was destructive in terms of the floor for be evidence it was just really frankly over the top i mean there were an artist cookbook i mean there's a number of documents that we cite in the record a number of writings i would say easily fifteen or more different writings that suggested that the defendant had subversive and terrorist leanings that he was anti government  i thought this was offensive personally but they even pointed to the fact that he had applied for iranian citizen ship in thought that it was evidence that he was in fact in or interested in terrorist activities and they made a reference to him being sort of the next mastermind of columbine during closing i mean this really was salacious and i think it would trigger an emotional response from the jury and it's highlighted by the fact that there were less prejudicial means available to show intent if intent was in fact relevant they have a camp of the testimony from his brother or scuse me his cousin that suggested that he had talked to him about the fact that he had the ability to make explosives that he could with a flip of a switch blow the house up that he was in so i mean if they want to present that evidence there was certainly other evidence other ways for them to presented and so we think the three analysis certainly ways and in favor of reversal i would like to stop talking so that i there the government's response and its motion in response to the motion and do not concede that it was all for for be in fact the prosecutor describe that most of it was actually intrinsic work or do speak up was sure that it was intrinsic  directly relevant to proving the government's case in the second what was the relevance of it sure so for example the do you have any anti government that's not relevant your honor for example i think my colleague is referring to the turner diaries which was prosecutor it was admitted on the fifth day of trial without comment i think it was exactly it was identified as the turner diaries and i think what happened there your honor was that the prosecutor was admitting it as part of a sort of unfocused matter of fact admission of essentially everything that was found in can these two houses and so it was unfocused and on thoughtful but it wasn't used it wasn't mentioned in the closing it wasn't it was available for the jury to look at made the bomb an element of an offense that the government had to prove be an alt out all the good boys he goes and argue that he just has it's not an explosive device well yes and that's one thing i want to clear up with you your honor i think you're for to it as a stipulation there was no stick lation well yet i understand my colleague cites a civil case that says that i don't think that any court would it would say that it relieves the government of its responsibility to prove every element in a criminal case beyond a reasonable doubt in fact all chief says that carved out an exception for felon status and so i think that case is very helpful in showing that even if there had been a stipulation which there wasn't in this case the government was still burdened to prove beyond a reasonable doubt that he made the bomb that  nothing to do with those elements they had to do with interstate access his prior felony so of course we didn't touch that the prosecutor in this case did not even attempt to offer the fact that he had a prior conviction for the same  by my opening statements going all the time and he says here the only issue is going to be wonder this was a destructive good device that's the only issue he admits to making it he admits to putting it there he admits all the elements were stipulated to he's already pled guilty to possession of chemicals related to this case that he wasn't supposed to have and then he says he was a choir boy but the question is whether this device at a call was a destructive device so what's all that evidence and for to show that  he showed his identity to show he made the device to show that ok so let's say that the let's say the opening scene is in that doesn't the trial could still have an obligation to weigh probative value in presence of that and how much probative value is there for overwhelming instead of being a trial about what was this a destructive device or intended to be a weapon you have all this stuff about this guy making bombs and this guy has intentions in this guy's a bad guy yet i think to try to think one one i think a way to answer that is to talk about a question you asked my colleague which was whether or not he had conceded that he had made this device and the question is whether  it's technically destructive but it's i think you asked my colleague he wasn't he did concede this in such a way that he wasn't saying it was a mistake that he accidently made something that became a bomb right and that's and i think my colleague said oh yeah yeah but that's not right t the whole defense was that he had made a smoke mix so his intent as the maker of that bomb that's what stink we should stop the ads from being completely irrelevant for this case in dalkey as the defendant had purchased a commercially available device and even in that scenario and this court has did consider the intent and design of the device just from the commercial manufacturers perspective the government witness said this is meant to be a training device not a weapon and so this court said  in light of that evidence that was admitted at trial and it was a terrible case for the government it sustained the affirmative defense for the defendant that our own witness in that case and this court held in doubt he has that the mere users intent was irrelevant here  kennedy made the bomb and the whole defense that he offered was it's a smoke mix like a firework or something like that and not an explosive device i could see how this would be  school this is what he does you come in and you go no that's not what he does he has all this other stuff that you don't use for that look at you know all the other things that was in his intent but that's not the way they  we know from all of this other evidence right that he makes smoke devices and he has other things he has the capability to make explosive devices but you have to the real issue is what was this device in the person and some of the evidence went to that but that evidence gets obscured when you look at all the evidence and that's where i'd like to disagree with you judge white and i think it's and i think what might be helpful when we look at the harmless argument here is the government's case lasted five days or six days of trial total of the five days of the government parents case we have five hundred sixty eight transcript pages and other things that  i cannot justify cannot defend turner diaries testimony about the two thousand and four application for iranian citizenship those types of items they appear at eight pages out of the five hundred sixty eight if you're towards the end of the trial on the fifth day i think frankly i don't think the trial attorney would be upset with me if i said that i think she was fatigued and unfocused i don't think she was being thoughtful and i don't think she was being the ferrous i don't think she was trying to but i certainly she wanted want me to be here isn't the question what is the effect on the jury yes yes and i think here that's where the fact that it was admitted kind of without without being used is helpful  if we look at the prosecutor's closing argument she doesn't go back to the turner diaries she was in go back to the two thousand and four application there she makes at the very brief cursory remark at the beginning of her closing where she says something about she's referring the testimony of the principal high school principal where he says that he was worried about another columbine type incident that's what that's how it comes up and i would say look that was improper but it wasn't flagrant and the and the way we can tell it's not even on the record is that there was no objection from defense counsel that if we look at what the prosecutor went on to say in her closing i think the high school trenton you know concern about children being in high school being threatened by bombs which is not good that took thirteen lines of her entire closing paragraph and if you look at the rest of her closing she's addressing the issue she says and i'd like to quote her because i think it's like to show you what she was really trying to focus on she says really there's just two things for you to decide back in ensuring room one that the device was made by the defendant was a destructive device and two that the device was designed as a weapon that's at eleven sixty and defense counsel when she gets up and her closing she complements the government on the framing of the case things she says something like the government told you exactly right about what this case is about that's love and seventy four so you know i can't say that this is a perfect trial but i do think it was a fair line in light of the fact that the irrelevant evidence was not the focus and that the admissible evidence against the defendant was overwhelming we have the plans for the bombs in this diaries the map of the bomb site  scape around and the tools and materials to make the bomb in his house and kennedy's position on appeal is that even that should have come in i mean it's a really kind of startlingly broad conception of what a defend and away from a jury in a case just by saying something in an opening statement which by the way the district court advised the jury but that's not evidence that an opening statement or an argument by a lawyer is not evidence could the defendant have actually stipulated formal to elements and then precluded the government from introducing this testimony no i don't believe so your honor not under all chief again we think of all chief as being one that stands for the proposition that you can st away the government's ability to prove its case but that's actually not at all she was very clear that the government still untitled and burdened with proving its case it just carve out an exception for felony status because really the court said under four of three there's just no reason to bring up the details of someone's given without objection from the defense limiting instruction yes and what is it limited to living to be evidence to be considered for what items why i apologize i don't have that in front of me but i do believe it's at five in the transcript but i believe that was jointly submitted by both parties whatever it is that it says i want to also point out one thing that i think we are in agreement on even on appeal of my colleague and i is that the expert testimony was very important here and four experts testified to from the government and two for the defendant and three of them meaning one of his expert said that this was a destructive device which i think is also very important harmlessness argument the fourth couldn't say what it was he just thought it could either be a small or destructive device and his own cousin testified that shortly before the explosion that he had seen all these materials in kennedy's house and the committee had been talking about making bombs not smoke mixes so i think all of that in light of all the also the sophistication of the device and the jury was entitled to find that it was a bomb and not a smoke makes when you've got wires watches delayed timers a poxy soldiering there is an expert evidence of an explosion at the shocked customer who described it as an explosion as well as the eyewitness who could smell and a pillar of smoke ok what's the evidence that there was a robbery there isn't there is not evidence that there was a completed robbery there's evidence that he planned to rob that jewelry store which is right next to the hardware store that he actually in addition to having the google  question that he thought about her right but what is the evidence that there was some sort of that this was in connection with an offense as opposed to some think he was thinking about right and i guess here i think it's thirty five the government's brief where i think there's both a case as well as the guidelines say that the robbery or the other offense does not have to be completed it just seems to have the potential of facilitating i think there was a lot of evidence that showed it was intended to facilitate the dinner night out which is this code name for the jewelry store heist was right there in the same journals with the bomb recipe the district judge explaining why he was denying the downward variance the double counting know it and i understand that robert sends not very good for us on this point i think the one and i'm not going to fight you hard on every man but i do think that one thing that distinguishes he this case perhaps from robertson is that roberts in this court you know i think was published decision this court found not only did the district fail to address double counting argument it also found that the record indicated that he that the district judge hadn't really understood it and i think here i do think we can find from the record that the district court understood the argument because i think that initially  trial counsel was a little unclear about what she was getting at and the district court invited her to come back to that point because he didn't really get it and then she from the record i think it's very clear what she's arguing about the double counting and so that i think would distinguish it from thank you your honor i just want to respond to a couple of things that the government pointed out first of all i want to clarify that the expert testimony that was given about the a by the device being destructive it is true that in response to a question from the prosecutor the expert answered affirmatively would doesn't that mean that it qualifies as a destructive device but on cross examination counsel got back up and posed the question again and the expert was able to clarify i think this device is an incendiary but because the simple fact that it is an incendiary does not mean that it was an incendiary bomb and both are required under the definition of destructive device and that frankly with the instructional air that we claim it was not sufficient for the device to be an explosive on its own or an incendiary or anything else it had to be an incendiary bomb or an explosive by and there wasn't overwhelming evidence on that point  our our expert again did not necessarily think it was an expose a bomb and or an incendiary bomb for that matter and offer testimony to that effect the other expert also talked about the fact that this item wasn't designed for use of a weapon because it didn't have a pressurized container that was sufficient for it to explode and when you look at the evidence of what was left afterwards there really wasn't much  much damage to the premises there were some which if that were displaced there was some charring but there was no indication that some sort of large scale explosion had happened in frankly the government experts suggested that  argument between the experts up to the jury to decide who they want to believe what they want to believe i do think best correct but that's exactly why it's not the by the error here is not harmless there was not overwhelming evidence of guilt on this key question of whether or  destructive and so to the extent you had competing information available to the jury they could have found the other way the evidence and arpa knew was not overwhelming on this point i say much if you address the question of a limiting instruction i found the reference on page twelve o five apparently the district judge instructed the jury if you find the defendant did those crimes x wrong you can consider the evidence only as it relates to the government's claim on the defendant's opportunity preparation planned knowledge and identity you must not consider it for any other purpose did you did your trial counsel agree to that limiting instruction and as a cure of the problem i do think counsel by not objecting and certainly by  i guess as has been discussed the first of all the limiting instruction is not always a ready fix especially when you're dealing with evidence before lay jury that is this inflammatory  and i think this is one of those cases where you can't presume that just because the jury was told to limit their analysis to a few permissible purposes that they were able to do so particularly where the theory wasn't really borne out