may please the court i would like to begin your honors just by noting that i tried this case with john human legendary figure in the western district of new york in buffalo john passed away yesterday and i just wanted to mention for the record that we're thinking of him of course i've got some very large shoes to fill here in john's in john's presence our client in the case was carl randall small five seven he's almost sixty years old at the time of the offen so that's why he's permitted to be at the v a hospital in buffalo in may of two thousand and sixteen he's there because he's having some nightmares he's looking to get some treatment and in fact mr randall is in a good mood that morning comes out of the restroom  and this brings me to the point judge is that you know there's a video of this event and that's pretty unique so what he does is he says hello to a good looking young lady and we know kind of what develops from there your honor because you've seen the video i'm sure and the case is unique for that reason case is unique because there's a video case is unique also because you get to review the record in the light most favorable to the defendant right and that's pretty a rare thing in this court knows that there's two issues before it i'd like to focus on the issue about the jury instruction whether or not karl randall was entitle to a jury instruction as to the justification defense so there are there is a video there's two things i'd like to address with respect to the video the first is what i believe to be a factual and accuracy that was kind of perpetrated both before the jury and before this court and that is that karl rand pulled this b b gun when look he sure hughes's back was turned i'd ask you do examine the video again if your honour's aren't so inclined and you move in a way even if her back was turned wasn't she moving away when he took the gu my my viewing of the video suggests that she is fixing her coffee she's already approached him once kind of aggressively back to fixing her coffee as you know carol standing in line and she's about to come she turns around is about to come back towards karl and at that point i think that the weapon is pulled out and it reminds me judge you know we've kind of argued this back and forth now because as you know we've been in front of the district court to that reminds me of a great line from to kill a mockingbird which is that people see what they look for and maybe both parties are a little bit guilty of that but but i think if you examine the video closely you are going to see that she turns around and it's only when she's in the act of turning belief that karl is a larger or substantially larger figure than the keesha he was you can see the video again for yourselves karl is no body builder he's not a very big man i don't think that there's anything to support and i've scoured the record to  to find some that says that karl is such a much larger figure that that should be a reason that he can't be afraid of the keester he was coming after him is there any question that this is non deadly force i don't think so i don't think so first of all it's a b b gun judge and second of all he doesn't use the thing right i mean that was going to be one of my it doesn't point it or cock it he just holds that exactly right he just shows it basically and isn't there and there are new york cases that sort of thing there are several yes yes in is it your contention that new york law should govern this issue under the similar crimes act well yes and i don't know if it makes much of a difference to be probably not that much different than the new york case law is not exactly crystal and it is not it is not and you know the standard is maybe that's me because it's such a factual inquiry rather whether whether karl is scared enough to believe the physical force is coming his way in order to react in a way that he did and that's a factual kind speculates that maybe she has a gun or knife or but that's total speculation it is it is speculation but but you know you again judge you have to review the evidence as you know in a light most favorable to the defendant and from the beginning in fact i was there at the at the trial and i argued personally to judge mccarthy that it's not a bow exactly what he said it's about viewing it in a light most favorable to karl which is that maybe she had a gun maybe she had a weapon i don't know i was scared you know he doesn't say those words but i think that's a reasonable length record to that effect is no absolutely not but i think that's a reasonable inference he's asked why did you do this and his response s well maybe she had a gun maybe she had a weapon and i think that's a reasonable inference to make that you know basically i was scared so i didn't know what to do why is that i mean what i'm struggling with is why is that a reasonable inference why what's the basis for that other than pure speculation well she comes after him first i think in context right he's actually in a good mood he's being friendly and i think that we both parties can agree that maybe he makes a pass and a young attractive girl and  she's kind of in a bad mood she's kind of belligerent right and if you look at the evidence in the light most favorable again to the defendant there's testimony to capri or there's only three fact witnesses in the case right to preach or as one of the witnesses and she says that  was was belligerent she was ballistic but she also says that there was that she did not hear anything that resembled threat coming from no verbal threats yes judge but but our submission is that maybe it's a different case if she hadn't first got into his personal space this this happens the he doesn't pull the gun it upon the b b gun upon the first time that look you should use moves from her position and kind of aggressively into carol's personal space right here only again it comes back to how you're going to view the video but he only pulls the weapon upon that second time so it's it's in the context of her ready having approached him she goes back to fix her coffee and she's coming back again and the other fact witness was terribly saunders who said all carroll said was haste don't be cussing at me don't be cussing at me and that caused lucky shoes to turn around from her coffee place and it looked like to me  she and i think a jury could conclude that she was going to go back and maybe do something physical to karo and watch what was really interesting in all this we're talking about justification case a self defense case where nobody got hurt there's no there's no injury menacing under new york law yes judge and knew that the new york statute says doesn't have to be a real gun anything that looks like a threatening someone in any way with what looks like a real gun and it is not the crime of the century but it is a misdemeanor under new york law it is judge and the defense to that is obviously that he was he was pulling the gun because he was scared right interesting point that you know the government can prove his state of mind through inference his state of mind that he was intending to but we're not really allowed to get into that either in jury instructions or in opening statements as to why he would you know that in fact he pulled the b b gun because he was trying to scare her that's actually the defense right and we're kind of cut off at the knees because we're not allowed to argue that well with respect to the opening issue i realize you're not arguing it doesn't mean that you're waving it but isn't it moot either way that is to say if you prevail on the jury instruction issue you get a new trial and unquestionably if we say on this record there is enough to warrant the jury instruction in your obvious allowed to argue something that would be available defense for the jury and on the other hand if you fail to prevail on the instruction issue you can argue that you should have been allowed to open on something that at the end of the day you would have been allowed to present to the jury anyway is no prejudice then so isn't this all about the jury instruction this case i suppose perhaps it is judge but the one thing that i would like to note of that is you know judge mccarthy i think did make what it what amounts to a blanket ruling that you have to testify in order to present the self defense trying to introduce in which the defendant said that he was concerned she might have or not i believe that the judge was aware of you know this all transpired in the course of about a day and a half pretrial conference was on the th irteenth and trial began on the nineteenth and i believe he was made aware of it before hand that would have been the evidence that would have been part of the evidence as to his subjective arrest post or his post or a statement and the video itself which we contended a jury could have inferred it as it does in many cases that he was acting out of us that he was scared he was acting out of self defense well the jury got see the video they got to see the video but they didn't get here for the united states if i can direct the court's attention to it's a joint appendix of eighty nine that's where the argument is concerned in the subjective component and what the defendant thought was reasonable is he would have to have his burden to demonstrate that and specifically what mr human argues to the court is that there's been a back and forth as the court notes this issue was looked at several times not only pretrial but during the course of the trial the judge revisit it several times but the defense counsel specifically says that we have the film and witnesses there's no specific reference or proffer with respect to the defendant's post miranda admission his statement and quite frankly that should have been objected to at the time of the trial i sat second chair it was a line assistance first trial we have a practice generally that that person who's doing the presentation you don't have all of us jumping up and down but once again i say that they are specifically that if i would be an interesting question right because didn't the government offer aspects of that statement is that was that they even had incriminating portions we did you know there would be a completeness argument that would be made now i think you're right that objection could have been should have been made by the government the government wanted to keep this out of the self serving part is hearsay but then there would be a completeness argument available on the other side and that feels to me like something that whatever a district court decided on the would be very unlikely to be reversed as a matter of law and since it wasn't presented to the district court it's in the record the jury was not given any limiting instruction they were fully entitled to consider  yes you know i think that bears emphasizing the jury heard a lot in a day and a half it was pretty fast trial what evidence was out there was out in front of the jury they saw the size differential right but how could they but that doesn't the cut the other way they saw all this evidence what does that mean if they weren't given an instruction as to what the law is you know if they saw all the evidence very possibly they would have said this is ridiculous that there was a self defense issue here we don't think that the woman was being threatening to turn a verdict of guilty but they didn't they weren't told that this wasn't a possibility where they got all the evidence or they didn't get all the evidence to the argument is they didn't get the jury instruction comes down to a fundamental premise the government's position on this is there's absolutely no evidence in the record from that that a reasonable person would have been frightened by that correct i'm so mean she might have retreated i don't know i agree changing the facts in that way what absolutely have changed from an oral or verbal fight to he brings a gone to an oral understand but but the issue the issue you're pressing is there was no evidence of his subjective state of mind not an argument that if he had said he was scared no reasonable jury could believe that were no reasonable jury could think it was reasonable for him to be scared because there was no proof exactly i but why couldn't the jury infer that he was scared by the fact that he said he didn't know whether she had a knife or a weapon when someone says i don't know what was going to happen i don't know she didn't have a gun because that doesn't indicate a jury couldn't infer from that kind of statement that he was worried that she did well when you look at it from that little bit yes but the other evidence in this case all of the other witnesses including the witness called by the defense he said he was scared he said he was scared of the gun then didn't yes of the defendant not say no threats no she didn't yes she used very bad language we don't see it we don't hear it on the video because it's only it's a silent video everybody else salut lee says that she is cussing at him terribly right but we don't but it's an important point that we don't hear any sound when you look at silent video you have one kind of experience which is just about what direction is she moving what is she facing what kind of gestures is she making if you had the sound you wouldn't just be hearing dirty language the jury would be able to assess whether it was loud whether it was belligerent whether it was frightening we don't have that we just have the witnesses testimony but the witnesses testimony is she was ballistic and i guess the question is the jury hears that a person is being approached aggressively by somebody getting in his face turns around and comes back after first backing away and is approaching aggressively is he concerned that he would be the victim of some kind of assault with a reasonable person be concerned about that why isn't that something that a jury should decide  whichever way they because they saw the video on the government's position on the video differs in harris it does that's the whole point there's a dispute why shouldn't why should the jury was retreating our argument has always been that she was retreating and her testimony was consistent with that that i was retreating and when the gone and she goes at length during the cross examination to explain why she went to the gun based on her military training that she thought that was her she didn't want to get shot in the was that was exactly has intention was to frighten her because exam her word and that's why he's guilty of menacing unless he was justified in trying to frighten her away because he was frightened that she would assault him do you agree this is non deadly force by the way yes yes yes so the only question is is the question of he needed to worry that she was going to kill him that's not really in the case under either federal law or new york law if this is equivalent to if he pushed her away correct and the judge actually at one point when they're discussing exactly this balancing and what one of the many times that the magistrate looks at the evidence he talks about there and he who listened to all of the witnesses saw the test saw how they testified saw the video bail install of that made a finding that he didn't make a blanket finding once he kept revisiting through the course of the trial and the district court did the same thing looked at those same set of circumstances and said you haven't met your burden of establishing that your  reasonable the subjective part of it i mean i agree we totally disagree with regard to whether or not we don't disagree that she approached what i believe it's twice that she approached him twice and she is cussing like a son of a gun because he continues to get into our space you know it is it is what it is you know i'm not going to go after the victim there was part of it that did happen at the trial you know because she was homeless and all the other myriad of things that happen to you when you end up going to the there to go to the wellness to try to get housing i mean that's the back story on the whole situation and all of that came out it all did at the trial my point on all of this is that judges who listened to the testimony and the witnesses and how they presented in a very thoughtful manner not one in don i'm going to reject this because he's huge and she's little there is a discussion the magistrate talks about it he says i observed her testify she's not hundred sixty pounds or whatever the defendant there's there's calls and i'm not sure that that has been highlighted for the court there's calls for while he's incarcerated where he's bragging about being in a nine millimeter in which is interesting because that's exactly what the sergeant says that he's got to pop the clip where the defendant has hidden the b b gun in the organ up and then the prayer room or the chapel to see and he's a eight year veteran in a seven year at the v a police i mean these are not on mindful people he had to pop the magazine or whatever i think he was in a magazine to see that it isn't a firearm i mean you're right nobody got hurt here but i get it from this perspective you are in the kiosk on the first floor of the veterans hospital in the city of buffalo where you have a lot of people who have a lot of issues who have served the country and they're good they're the mean in the record she's got seven plus years you know and she explains her response to it i'm just saying that i guess if i can bring it back to with i five just one second term to run over is that not one but two judges have looked at this before hand and really thoughtfully evaluated the proof they didn't they didn't give short shrift they understood and to look at it from the perspective of the benefit of the defendant i get that i'm not shying away from met but you have to look at everything and i think judge mccarthy really did a very good job and he struggled with that but he got to this is a discretionary decision is it and we review de novo whether the same way the judge or kara did waltz i didn't see it but then thank you thank you thank you as well mr bradley you've reserved two minutes of thank you judge just just a couple points on that last issue that in over review we've addressed that in our brief i think i think quite thoroughly i point this court to united states versus cop with a k which comes out explicitly that de novo review is appropriate especially in the context of a self defense jury instruction one other thing is it is just it is de novo review and so it doesn't frankly matter  that two courts have to have already dissed you know looked at this issue but judge mccarthy does know that he turned it over in his mind several times and i think to your point judge that if you do have to go back and look at the video a couple times if you do have to think about it and say jeez was she coming after hammer was was was you know what was said and who said it and when and if those kind of issues are percolating then you ought to get the instruction and