for four b whether mr andrus was entrapped as a matter of law and finally whether the district court's condition of supervised release that mean that mr andrews may not look at anything violent is too vague your honour's i'd like to start with the second issue that mr andrews was entrapped as a matter of law but i knew at the outset that this issue is closely linked to the evidentially issue in jacobson the supreme court held that the government agents may not originate a criminal design in an innocent person's mind the disposition to commit a criminal act and then induce commission of the crime so that the government may prosecute the court also required that defendants promptly accept the government's offer to participate in the criminal act there is no dispute in this case that the purchasing of a firearm within a blitter rated serial number was a criminal design completely originated by the government the idea was first proposed by the informant who did so at the direction of the handling agents and that is that to an appendix one twenty two at the time mr anders was nineteen years old  suffered from mild autism and he had no criminal record his reactions to the government's offer which was made in october included the following i want to do paperwork if he's going to sell it to me that's a j a three fifty one it has to be legit like i have to make him sign some papers that said you're an appendix three fifty two and finally i don't want it to be like it's stolen or something that's also a joint appendix three fifty two contact did not resume between the informant and mr andrus until december almost three months later during the and finally and what we obviously offered as an obvious sign the mr andrus was confused about what was happening at the conclusion of the f b i post arrest interview mr anderson quired whether he would be getting the firearm back based on those based on the prompt response if i can move to the evidentiary issue as well at trial the government's initial theory was that mr andrus was engaged in some undefined activity involving terrorism once that evidence was excluded by the district judge the government reformulate its theory of the case and instead relied on three recorded conversations which it offered to show that mr that's correct your honor is that you're none of those three discussions one involving a supposed cartel member one involving a hypothetical robbery and the other one involving a hypothetical straw purchase nothing was offered  trial to show that any of those were more than simply talk and in fact we would emphasize that mr enders had no connection to the criminal underworld none the less the government doesn't that go to is precisely your honor  for three it's well your honor it's four and four which which would include the four zero three argument we offered under four hundred four because as this court is point out the mclaren case the analysis for predisposition under four four is somewhat different and i would actually turn the court to look at the mclaren case because they're in mclaren the defendant challenge the defendant had been charged or convicted of a robbery and the defendant challenge admission of evidence involving his previous possession of a firearm this court allowed that evidence to be introduced for two reasons the first is that possession of the firearm was necessary to the completion of the robbery and the second was that the firearm itself was unique there was discussion in the mclaren case about whether the firing could be used to quote chop ligaments and the court in this court noted that the firearm discussed by the defendant there had unique characteristics with made it particularly powerful in contrast to this case possession the possession of a fine with obliterate serial number was not necessary to any of the three conversations that were admitted nor do any of the three conversations that were admitted even informant involved mr andrus going to places where he could legally purchase a firearm such as dick's sporting goods in a pawn shop informant however was instructed to discourage mr andrus from purchasing any sort of fire offer that for two reasons the first is that the informant discouraged him the informant discouraged him at every turn to purchase any of those firearms and mr andrewes was quite young and had other issues which made  insisted it well your honor i would offer that it's not inconsistent based on the specific circumstances of the case for example when he went to go try to purchase the firearm from the pawn shop and he looked at there's the specific instance was broken and he asked the pawn shop owner whether he could purchase it if the pawn shop owner fixed it the informant at that time strongly discouraged mr anderson not purchasing it saying that it was nothing more than a paperweight and anderson's conversations and comments throughout his interactions with the informant in particular his repeated emphasis on wanting to do paperwork in his understanding to legally purchase a firearm he need to show his identification and in fact m argument at trial and ordered we are in fact we emphasized at trial that mr anderson did want to purchase a firearm and we pointed out that he had visited these places where he could legally purchase the firearm but that he had no opportunity to purchase any sort of illegal the validity of the supreme of the supervised release condition needs to be addressed at this time on direct appeal this court has said that as opposed to what the district court said the condition cannot be clarified at a later date whether it's too vague should be decided by this court on direct appeal the second is that this court has noted in other contexts dealing with access to media that broad bans on media are in fact too vague the idea that mr cannot look at any sort of any sort of media dealing with any sort of violence is simply too because he has no direction but what he has access to and in fact just walking around during the day seeing the news seeing the new york times could potentially violate this points not only from this court but it's the same arguments that they present to the jury and namely that mr interest was only in the market for a legal gun that he wanted to do paperwork and that he really never had any intention of buying an illegal weapon or an untraceable weapon and the facts of this case and the facts there present to the jury really undercut that as early as april twenty fourth he made twenty fourteen mr andrus made statements to the undercover to the effect that he wanted gun that couldn't be tracked by the government  tried that could not be tracked by the government when the recording it when he went to the july the july twenty fourth teen pawn shop he indicated prior that the guy in the pawn shop was selling guns no strings attached when they went into the pawn shop only gun that he was interested in buying was a gun that didn't require paperwork one of the arguments that they repeatedly make is well the the c h s the confidential human source was really had an overpowering influence on them and it's notable that in that july pawnshop meeting the c h s head don't buy that gun it's a paperweight it doesn't work and what did mr interest to do he made an offer for the gun so it undercuts this claim that the c h s really had this powerful influence on him and it should be noted that the only gun that mr andrews was interested in that day in the punch up was the one that didn't require paperwork the guns that were more expensive and that worked those required papers and he said i'm not interested in those after the pawn shop meeting there's subsequent text messages and conversations and this was all present of the jury to the effect that mr interest wanted a gun that didn't require papers there's a conversation where he's talking about and this is excluding the three contested sufficiency of the evidence before this court you know there's a government present interest to the effect that mr andrews went and tried to have a street purchase for a firearm when discussing why they wouldn't purchase the firearm in a public location he indicated it's too hot out i don't want to do it and there are you know in again in in september in continues and when this this near a course of conduct mr interest is on tape saying they're talking about going in purchasing farms going to the pawnshop and he says yeah but upon shop they're going to ask me for id and they're going to be like you need to be twenty one there's this repeated theme you think you have a better answer the question as to why you didn't go and buy it  somewhere oh absolutely your honor and i think this is all prior to the government actually offering mr andrews the firearm if you look at the case law makes very clear that that that the point of the actual offer a ready response is also in and of itself sufficient to establish predisposition and what happened when mr interest was off of the farm the c h s went to him and said hey i've got this gun but there's something you need to know about it it's missing it serial number and it's illegal he says it and mr anderson's response is no no no don't talk to me about that over the phone that same day they went they met mr andrews offered for offered for the gun one hundred dollars and some pills the c h s turned him down because the f b i had told him we need three hundred dollars because that's the street value of this weapon after that initial offer there was a two month cooling off period where mr interest told the c h s he was going overseas s didn't push him on the gun didn't ask him and in december who reinitiate mr andrews he repeatedly texts the c h s and says hey remember that gun i told you to hold for me you still have it hey is told twice that possession of the firearm is illegal and yet he still goes forward with it and it's notable because when we're looking at the hunt case for example the fourth circuit the court makes clear that a failure to withdrawal is can be evidence  predisposition here there's this two month period where the government offered had offered the weapon once and in this two month period mr interested in go out and buy a legal firearm instead the only firearm he came back to was the firearm that been offered by the government at one time there's also the evidence at the time of the transaction itself of the gun still self that strongly suggested that mr interest knew that the firearm was again illegal at the transaction he kept on saying that the undercover f b i agent was making it hot he kept on saying your guys making it hot he's got to get in the car your guys making it hot at a certain point time he has the undercover where did you get the gun from and the undercover he cover says it's a hot gun and mr a does it have any bodies on it he clearly knew at the time of the transaction that he was not purchasing a lawful weapon and while there is some conversations about paperwork the overwhelming the the evidence is overwhelming that mr interest knew at the time that he was possessing a weapon purchasing a weapon that purchasing a weapon that had in the blitter rated serial number at the time of the transaction he also took out a flashlight he looked at the gun he turned it over  and he examined the weapon after the fact the f b i interviewed him after he had been arrested and after initially denying that he had purchased the weapon he said yes i purchased the weapon and he admitted yes i knew that it was missing the condition  so the government's can it's the government's position that that that condition can be read in the comments and fashion your honor i mean the fourth circuit and the fifth circuit have indicated that when fashioning it primarily in the sense understanding of of what the court was going that we saw this and is that all that what is the person to make of that it was objected to was a person to make of wh you know known use of you know physical force right it's physical force against the use against another person and well you know the court made very clear in contextualizing that that what she was concerned about was real world issues it obviously the supreme court it took him sixteen years to figure out what obscenity met and i think here i think here that its context allies in part by by the courts statements that she doesn't want to be looking at images or information relating to firearms she doesn't want to looking at information or images ruling to soldiers of fortune and and by the her broader context in which she said listen  there's a potent combination we're talking about mental illness and access to firearms and that she doesn't want to involve it it seems in reading the entire sentencing transcript that she was very concerned about his involvement and like internet subcultures that reading the new york times you know in the context of in the context of information that could be considered excuse me that he that sort of a commonsense approach and in that context she wanted to keep him away from social work and those type of gun violence those types his parents were concerned about him and gun right and so she just looked at it trying to say it was a break them up was  that if he engages in these types if he actively looks out for these types of images of violence that he you know is it sufficiently defined or has he given enough notice as to what that could be we're not necessarily talking  looking at like a magazine that has this isn't this the way it would have to world for that to be a violation of his conditions at some point either he would say to the probation official or the probation official would otherwise found out on visit or otherwise find out they think that he's been looking at something somebody deems violent or else he moves to look at something that probation might be violent at which case either the judge would be approached by the lawyers and the probation officer or else they would be a supervised release violation we were not and submitted to with a chance to respond to it submitted to the judge and then the judge would look at that side that's not what i  it's similar conditions in u s b shaab this is the seventh circuit case that court of public condition that the defendant prohibited that the defendant was prohibited from associating with organizations or their members that quote unquote espouse violence you know we think that's analogous in the president's case because they could have indicated there were what is an organization that espouses violence and that's really difficult for us to define and and the court there said you know what that's fine likewise the notion that he's going to be violated for you know reading the for viewing sexually stimulating materials so we do think that it could be read in a common sense explanation we do think that it would be more difficult for you know for the court to find with particularly in a way you know with helping overly prolix to define the term but if the court were to disagree you know we do think that the appropriate the there are two kind of options as far as we understand or two or three you could strike it down its entirety you could limit it you can impose a narrowing construction there are other courts have done that or you could remanded back to judge brinkema and we think any of those would also be fully appropriate if you really want to do one of those no your honor we charge rather the crime only need to be similar enough and close enough in time to be relevant to the matter at issue and i think it's important that you know the underlying purpose of the predisposition increases for the court to assess  the defendant's state of mind before the government's making the suggestion that he commit the act and if the defense is correct in that and extrinsic statements can't go to that it leads to a somewhat perverse outcome where i could tell my best friend that i have an intention to been prior statements in these statements that occurred months previously to an undercover that those parsed statements were proper evidence of the defendant's predisposition the second circuit in crummy t says really you know we're more concerned about actions but statements it's less likely that a statement from a person is going to be prompted by the government and so it's one of the clearest and dish of the person's intent and so i think under those circumstances because fundamentally we're trying to assess whether it's an unwary innocent or an unwary criminal and what that person is saying within the context of you know the limitation has to be similar enough in time and in close enough in the subject matter you know this isn't just we're not just letting in all general criminality and that seems to be the concern that the defense is going to is that this is going to open the barn door and there's an act of limitation there so i don't think that that's the case they also in their briefs they talk about how  evidence after the government is introduced to the defendant that that evidence isn't permissible and they cite for that premise jacobson and brand this court in skillet code the second c addressed that point and they say and they make clear that all of the evidence the evidence even after the government has made conduct is relevant towards the determination of whether the defendant's conduct was independent and so i would point the court in that direction for  we kind of debunked that but just to kind of put a gloss on you know they say that these three statements were the central points in the opening and closing arguments that they were kind of the linchpin to our case these three statements were never mentioned in opening arguments they sure wanted to use them so i don't know why you protest and so no and really all i'm saying here is that if some of these statements were properly admitted or the court were that we would think that they're harmless error given the fact that they weren't or that they weren't emphasized in opening and closing arguments and they really weren't what the government centrally focused on when it present its case to the jury i think we understand your argument thank you can't punish him for that because it is just a fair reading of that and give somebody notice of it because you're on i believe the jacobsen case says that an understanding to scope of the supervised release condition that has to be determined now as opposed to after mr say that you could that's not a an appropriate violation because no fair person would understand that to be the reading of the word gun i think that's correct your honor but i would i would offer that you're i would offer that would be a factual dispute as opposed to here which i believe that we're much more into a legal question but exactly how broad no was he got a question of what is violence was a fair violence under that condition it would be it wouldn't be that same analysis what did she say well i don't know why she would say but say she did say well you violating you have violated i'm revoking your supervised release because you did something that violated my probation on a condition i'm not saying that's what we have to do but i'm saying it seems to me that's one way in a commonsense approach that you would get to a remedy iran of that then that could very well be a possibility but in doing that we would still have to go through the process which your honor pointed out a second ago which is that mr andrews still be technically violated he would eventually still have to serve a sanction at the time of found in violation below even if we appealed it to this court and i think that is why it's so important to have notice in clarification now about what that condition means especially as opposed to dealing with a circumscribed issue for example what would define a firearm i said to pose as opposed to what would constitute violence which is much broader and much vaguer so i think the specifics of the commission itself would warrant clarification at this time as well i believe the government's argument and turning to the predisposition issue i think the government's argument a second ago also illustrates really at the core problem of this case which is that the government was allowed to pick that trial that mr andrews was a hardened criminal even though he's nineteen years old had no criminal record and i know had no previous connections to so far as we know anybody with any sort of criminal record aside from the government informant yet the government was able to use these conversations was able to use the government the recorded conversations with the informant to depict him as somebody who he was not and the government's offering of such as statements that mr andrews said i want to go on by is that untraceable was the only conversation that was unrecorded and in conversation with the informant based on that your honor we would ask that this court remand the case to the destroy find