trial but in this case the district court's rulings prevent the government from being able to have a fair trial on a grand jury's indictment the district court committed truly or legal error in ruling that evidence of mr holmes as motive is reason for wanting to obtain machine guns was not relatives that contradicts this court's decisions and she met siebel and others in which it's clear that in the government's case evidence for why a defendant wanted to commit a crime is relevant but legal error is all the more problematic as tom's a has put at issue explained why he wanted to go to jordan the benefits that came from him having an american passport he doesn't demonstrated knowledge of the ways the israeli army works and this the targets he would want to hit and that's why the government proffer somewhat more extended discussion of his detailed planning it also is critically important to it entrapment because it shows that as early as october of two thousand and fifteen he himself was leading and having the detailed discussions for why he wanted a machine gun why he needed to be able to spray bullets and that happened months before the actual solicitation for him to purchase a machine gun in this case i think your honour's question demonstrates precisely why the error by the district judge is so star because entrapment puts that issue as you see even in the appellate brief here questions of his sophistication the timeline delivery the consistency with which he demonstrated a desire to have a machine gun and it critically puts at issue the defense's argument of who is really the leader here  going to claim that he wanted just a handgun or a different type of weapon or he will be arguing that he was just carrying a weapon for steve or someone else and that there wasn't constructive possession and so possession is at issue not he he has argued in his appellate brief and below that he was here actually hearing but carrying a weapon for steve for someone else and in that way appears to be denying that asked that weapon in any real way but even setting that aside the entrapment defense also makes the mode of evidence very relevant because by permitting a trach make to go to the jury the government has to show that he was predisposed to obtain this weapon even of tarc from the government solicitation but if you just want to have a machine you were did where did this come from that was caught with the approach that car that particular machine gun at issue was furnished by one of the government agents but he's the government needs to show that he was predisposed to obtain an illegal machine gun and a machine gun that could spray bullets of course there's no requirement that the government show that he knew it was illegal but the point is we have to show he was predisposed to obtain a machine operation so the government asked to prove that he possessed an illegal machine gun so at trial to be evidence that the machine gun that he possessed was illegal and the government's evidence will be that he paid money and then shook possession of it that will be shown at trial the repeat but the motive that it ends is important and i don't know if this gets to your honor's question but the motive evidence is particularly relevant to show that he wanted to possess that machine gun one that could spray bullets and that shows that it wasn't just something he was carrying to the car for steve just because steve needed his car loading it's something that he himself wanted and how do we know that he wanted it because he had a plan a plan that he expressed as early as october and again in november and december to spray bullets and attack people now i try to tell mr holmes is going to argue that he only wanted a handgun and this was a bait and switch that he was only interested in self defense and the government needs to be able to meet those arguments by showing that actually he was the leader holmes or was the leader of the discussions was talking about committing a mass shooting early in the fall and then continued in that desire so that shows that i january and the government offered these weapons it's something that he himself wanted to do and that's critical i would i'm not so sure that you know mode in though it's been highly contested motive she proceeded to determine that the evidence was relevant to counter the claim of  she acknowledged that in some instances this evidence could be relevant but what's so critical here is to see that over fifty times she ruled over fifty times that a recorded statement was just flat not relevant even as to entrapment which cited those in the brief saying that they were not probative irrelevant or not relevant also as to entrapment and so that's a clear legal error to fail to recognize the relevance of this particularly again given that outright well i'm just going to argue that mike and steve were leading this charge or that he only wanted a handgun and so a recorded statement where the jury can hear his  leadership and desire that is plainly irrelevant under under this or its decisions and so going to go ahead but i kind of like to go on to your positional pre determination arguments because you argue that the that you should be permitted to introduce evidence that hamsa could have committed the crime by purchasing conversion kits online but are you then arguing that  is merely the ability to commit a crime regardless of whether the defendant was aware of that ability and if so if you are within that mean that nearly everyone in this country of yours but your honor i think the safeguard and the argument is that predisposition also also requires the use the defendant's own natural desire and predisposition is not only a matter of him being ready and willing but that willingness is a critical safeguard and the most recent on back decision by this court is of course may feel and the legal standard announced there is th and expensive means that the government has to be able to show that actually he was ready and willing and could have found the means so that that distinguishes him from a case in which the government has created a criminal defendant look government show the defendant had another way to find ten or fifteen kilograms cocaine it's enough that the defendant could have found some other stash else perhaps of many much less drugs are of different quality or different purity because again the heart of entrapment is trying to distinguish between somebody who is ready and willing even if they haven't found the means as opposed to somebody that the government has really over form and that's why it's important to show that hamza you know homs is somebody who even back in the fall was looking for a way to get a machine gun that's why the evidence of him to going to the middle east is important and now they're going to show that he could have gotten this particular machine gun on his own the fact that he could get machine guns shows that the that he was on his way to committing this crime and it's it was not entrapment for the government to stop well i have to tell you it seems to me that the if they all ability of conversion somebody was actually trying to talk him out of this original mode it and i all of the original motive this so maybe to me it sounds hypothetical which is some guy be done with it that i can project that but it just seems to me that this has the extreme statements that he was making initially seem to them they say and what we have which is not a whole lot the government would not be trying to put in his statements from the fall of two thousand and fifteen because as you say it will be a simple possession charge but because pepper is allowing the jury to hear entrapment it's important for the government to show that he had the desire for this sort of weapon long before he was offered it and you know so that so the question of his his his desire i would point the court to eighty five of the appendix this is just two days before he purchases the machine guns so if you're asking what was he wanted to do just before he obtained there the machine guns at the bottom of two hundred and eighty five he says listen what we need from the u s people to machine guns and three silencers and three magazines so he states very clearly his desire to do this and yet the court excluded that statement which could not be more relevant i see my time is up your honor i have reserved some time for rebuttal unless you have further questions to look at the record your honor and you st want to go to record to seventy two and then two to ninety eight in the other places the government arguing about i q being relevant and these statements coming in that are there if you go to two hundred and ninety eight it's actually pages eleven through seventeen that's their entire brief as they getting these statements in and countering our objections as to the bait and switch your honor mr krieger is a little bit mistaken we never argue that he wanted a handgun when he went to the  media what he wanted was a ar fifteen that had been shown repeatedly and then he had the lie and say i thought it was going to be like your gun the same gun that had been introduced the whole time now as far as blitz goes that means the but to back up your honors if you give you a clear idea of this case you have to understand the judge's rulings as important to highlight the chronology of the government's investigation turned over every aspect of honda's life his e mails his phone calls his text messages internet search all of his banking records are subpoena interview his family his friends even interview the doctor who delivered all the effort is put in there and there's not a shred of evidence that honda has any interest in firearms let alone a legal firearms or even terrorist organizations in august two thousand and fifteen and i stress august two thousand and fifteen because that's the important date that's precisely when steve approaches hans that's when steve becomes an f b i informant and the government's statements the statements that they want to bring into evidence don't take place until october two thousand and fifteen a full two months later there's one recorded statement the end of september but the ones who they want into evidence are all two months later right at a time when the informant decided what they were going to record and when they were going to record the government wants to use those recordings to show that i had an interest in illegal firearms that he was predisposed and judged pepper to the extent that the statement spoke to an interest in machine guns so there are a lot of presented to the extent that it was superb listen flamage story statements they were cut this was not going to be a trial consumed by middle eastern politics generational feelings towards other ethnic as fantasies as judge man and it said encouraged by the informants or talking jihad or suicide attacks this trial is going to be governed by the jury instructions are going to govern by may feel to get this case to trial and this was a big case the district court did exactly what we want from a trial court she took in all the arguments she dissected the transcripts taking out the portions that she thought were unfair or there was a risk of unfair prejudice which she acknowledged the parts the government needed and commands it's hard to look at her orders and not sit saying that we want anything more from a district court judge there thorough ordering our comprehensive i mean you don't often get a fifty one page order and then a thirty nine page order from from th report rule and all the statements not only that judges judge they move cases to trial making calls balls and strikes a lot of the case to be tried and so long as the calls are reasonable they that's why we want to move this case towards trial and the government wants to escape that process they took an interlocutory appeal and they say well it's very rare that we do this and this should be rare because it's a crushing task the judge pepper endured and  the government wants to throw up its arms and have you guys say look this is just too much they want every statement admit every statement you have it only present fifteen here and that's only parts of fifteen and they only brief thirteen of those and below it never defended these transcripts that's the great error here is that if you look at our two hundred and ninety eight pages eleven through seventeen that's their entire argument about why the students who come in there is no i q evidence and the judge was quick to acknowledge that this isn't what we bring it in for this is going to be a decision that we're going to focus on what are the elements and what is the government need to allow them to have a nd bite at the apple we feel that there is a risk that it will not going to fair trial because of so much of the evidence that's brought in but when it comes to his intent to do anything with these machine guns mayfield is very clear it's the crime charge that's why judge preppers order w as focused as it was what's the crime charges it wasn't that he was going to go overseas and commit some terrorism and that was just provided and i believe judge me as a fantasy as far as the relevancy goes when it did speak to a desire for machine guns  t if they're even getting and parts were just pepper was very careful some parts couldn't be entered undone where he would talk about his discount spirit for people of jewish heritage it's hard to t ake that out when you can look at what she did and i believe it's a november sixty six discussion he talks about it using a handgun and then taking the weapons from the soldiers she's getting that in but as far as what he wanted to do with the jewish soldiers that's coming out because that part showed an interest in a firearm that is predisposition and that's the correct call you make because the judge has to make this kind of a fine deicing the government can't say that that's a per s the government appreciate that the government's argument it or just peppers ruling is that nobody can speak about what was said you know there were meeting every day with mr hobbs or they were they both that both informants had jobs at the same restaurant so there's going to be conversations that weren't captured on the audio but you know mitt whether it's trial testimony that it live testimony from the stand or it's the recordings for all three still a plot you can't escape for all three at some point we would object consider judge you know this is the th time you've heard this you know about this conversation or this is that you know this is irrelevant and the judge might have a sidebar and then you know sustain or overrule and those are the cause of the judge is going to make you're you're right about that i mean i guess it would have been a better question for government you know arguments and those are what exactly we're going to be making to the jury and there's a reason that our client's out on bond there's a reason we're presenting then trap the defense is because of that but your honor i just highlight two facts within the scenario you presented one the recording stopped on december th they don't resume until thirty five days later and they resume and we're told hey the last couple days despite meeting with hounds every day and there never being a mention of the masons and all of these recorded conversations and thousands of pages o reports the masons suddenly come up and that unfortunately was not recorded nor was a day prior so all we have is homs and talking about the masons and the statements are that my kids showed in these videos though those statements are actually recorded and they're the said to steve who was also recording at the time and hounds are within four days has or five days has abandoned all of those plans as mere bravado and he leaves and says guys we can't do this you can't do this despite my can still you are pressuring and continually in the car saying what you can trust in a mom who used to be a christian you can't do we can't abandon this he says we let me out of this let me out of this and he doesn't want to be part of it so your honor as i was just down two more small points that i felt i really wish i would have brought out in the briefing but fourteen thousand words is the cap as to the motive evidence george romney your person has the right you know fuller and schmidt those are both constructive possession cases when everybody rolls of their hand so it's not my gun you get in the mode of that means and for v wilson which is really the quote that they keep on using that it's always relevant that was a murder case and it's actually not even a quote from this court it's  cult within this court's opinion for the rules when it comes to what judge pepper did here this court can't embrace the government's desire or now in their argument that there's going to be this on mosque just order and all it as trials progress as a court makes these decisions everyone has to have an idea where things go and statements that weren't relevant before trial they can be relevant because the testimony changes that's for judge pepper to make the decision and this court is poorly equipped and you can see it even right now how many facts judge pepper had to be immersed in and that's part of it with the government statement when they say she wasn't really that familiar with this case judge pepper knew this cas we filed six pretrial motions to dismiss you know in the government's right part of our argument was that he shouldn't be held accountable for steve's gone because it's a taxing statute and there was no taxable event when he takes it over do you have to know all these  you ruled on bond twice twice you had huge bond motions i mean we put it over seven hundred pages of pleadings we put in there she had also finally rule on the jury instructions she had to rule on our discovery and she also had all of the exposure to the government secret disclosures this even disclosures we had no idea about the ex parte meetings with the judge to say that she didn't know this case intimately it's an insult she knew this case better than some of the waters is this machine gun that he was to say caught with as he approached his car that machine gun i saw was some kind of a machine gun and that weapons that he's taking the whole time so nobody's ever denied that we've always fully embrace that there's never been a time nor are we every argue that you know he really wanted in the car to get a pistol early on many of the conversations about pistols but we have fully embraced always sure has the bat is the video is very clear that holmes is carrying the bag so we never deny that the government needs to backfill or use motive that for an undisputed point just shows why the balancing you look at