well as it actually required don't you have to have some evidence that goes to each of the elements of the defense and isn't there evidence that he could have walked away where he was dropped off it was in a position where he did not need to undertake the activities he did do to effectuate what essentially was that the alleged robbery or theft your honor in every duress case that i've review from the th circuit or the supreme court or there that is always an issue that's discussed but is that a vision for the judge or the jury to decide in this case he's dropped off fifty feet from the same he dangerous he knew they had a propensity for selling guns i think you could look at the testimony even of the investigative officer he had supervised three prior gun searches for this c i from these two people i believe the evidence clearly shows that the issue of whether he had that opportunity to recognize that fifty feet in a car if you're traveling thirty miles an hour is one sec d i don't believe that the evidence should be the jury the judge should be allowed to make that decision based on the evidence that's in this record but as i said m if you look at this he didn't even know that this was going down until just before it happened he had run into these two earlier that day by accident as he was walking near leavenworth  and they had got out of their car threatened him you can look at exhibit one hundred and two you can see that it has nothing to do with his shoes in this case they threatened him because he owed him money to why that thing happens other than that testimony that the individual that supposedly had the guns didn't show up they leave in for the next forty five minutes to an hour to to  mister taft and mister yard drive around looking for somebody to be a patsy they drive back upon my client they cut him out from his friends they take him into hanscom park s down and he's testifies on the record that they determine that one of them threatened to shoot him if he doesn't do it they put him in the car they drove back to the same location they were originally which is a location i'm familiar with because it's kind of in the neighborhood i grew up but it's near the intersection saddle creek and the radio highway they drop him off fifty feet away now the question is could be a runaway in every case that i've seen including bailey where the split court case where the the the defense or the jury instruction was given you can always make the argument the question is whether that's a question that should be determined by the jury or the judge it out let's just say i don't know you're getting close to rebuttals so i don't want to know that's the whole thing up i want to jump ahead to this something that you would said you're going to argue and that is that you were not allowed to argue the question of voluntariness in intent and when i went through and read the closing arguments i saw some argument that  client got up in the morning not intended to commit a crime and he did intend to commit the crime during the day and he didn't commit intend to commit the crime and there was tempus the testimony that you highlighted that emphasized that honor interesting fight a lark and i sat there with judge russell to rule over my left shoulder the u s attorney over my right shoulder and if you start looking around i think in the transcript about two hundred and sixteen you'll see the discussions with the judge very severely limits he can argue duress he says i can tell the jury why not argue and sense that was discussed before them it doesn't tell me that i can are doing any more than that it is when i ask him about whether i can argue voluntariness he says a page two hundred and seventy four he's likely to say in an argument so the whole time i'm arguing every time i get to any of it's kind of a light situation i feel like there's going to be a hawk come out and let me off d the stage but d in fact i do not argue that if you read my st argument is essentially a reading voluntary n'est instruction the court found that he did not meet his elements with respect to each element of either of those defenses corey just or duress and therefore those instructions were not proper as a matter of law in particular he was and so did this scuse me is a really a distinction between duress and poor in our circuit i mean i'll just tell you that i was on the pattern jury instruction committee when we read the pattern instruction and we arrived at the conclusion then that remarkable for very obvious reason dixon didn't go to address this efficiency of evidence to entitle the defendant to get a jury instruction on on duress your audience simply stands for the proposition that by placing the burden of proof on the defendant or by showing a preponderance of evidence on each element of an affirmative defense that's what it does what it stands for now the defendant in this case suggested stands for the idea that these are things that you go to the jury is still the district court doesn't play a role gatekeeper of evidence to decide the legal sufficiency and whether that's been met by the defendant in this case the district   during in my cross examination of a yes asked you know you said the magic word credibility to me and that sounds like you're making an argument to the defense credibility so the jury no it's not one most importantly it's  thing that has to happen is the district court has to determine whether or not based upon the standard the objective standard or whether or not serious bodily injury or death actually occurred that's the st thing that we have to determine and the only thing that the defendant testified to were these vague and ambiguous statements that something to the effect of you'll find out what time of day it is and then he makes a reference to you know if ands or i don't think there's any evidence to show that he knew that there were gun runner judges nothing in the record because he wasn't part of any prior deal relative to the c i purchasing the guns so there's nothing in the record suggest they knew that there were gun runners under these circumstances i don't think it would be material anyway he stated that he had previously dealt with at least one individual with your previous drug the lankan ship that just having a reputation for violence or just having been known as somebody to to be tough or intimidating is not enough sense that in logan that was an individual had a reputation for violence and he made the statement that the aggressor says he was going to put logan six feet under a p was ever across this court help that wasn't enough there was no evidence of past retaliation on the part of the aggressor in that case and there was no evidence of what crossing that juxtaposed so this was really going to question of the immediacy and her absence absolutely so harper logan blankenship all addressed the issue of neighbor now the this court held that you know at the point that blankenship had escaped the threats over there no there's no additional couper so affects there at that point in i was very specific  asking sharon about that issue specifically about when he was dropped off some one hundred feet away in the auto zone there's a number of questions that i asked him about could they see you could you see them he makes a statement of having to peek around the corner that he was free of them in the actually testifies to having made a choice no words you could have left or you could have stayed you chose to stay he acknowledged that and what he said was that it was the fear of future harm that made him do this is well i know the words they know where i live and at some point even if they were to get trouble they would be released from prison and they would come come find me again that doesn't meet meet it's insufficient to provide him with the necessary coercive effect to continue on with that this court as well as you know in blankenship logan harper the threat of future harm is general it's speculative and it's not enough to meet his burden of proof so it's just with respect to that element alone yes failed his ability to avoid it by either contacting the police or some through some other legal mechanism again you fail the element in that regard not to mention the fact that the proffered instructions that he gave did not owe d any of the pattern jury instructions they tended to be a the burden of proof for the jury to determine here that it's not for the judge it's settled a conflict among the various circuits on what the jury should view when looking at the evidence  rest if you go back to the other supreme court case bailie case where the core in a case where the dress instruction was given or excuse me what was not because of failure to show a special lender but the supreme court said it is precisely because the defendant is entitled to have the credibility of his testimony judged by a jury it is  very much and also i should thank you for taking the assignment under the criminal justice a appreciate you doing that and ms duncan mckie that exhaust the calendar for today