is a thirty six year old male who is serving a twenty five year sentence for three separate convictions for felony possession mr black had a well documented history spanning nearly ten years of mental health problems so naturally the defense below is that mental illness was the lens through which the jury should assess the commission of the felon in possession offense and we've laid out the facts quite extensively in the briefing the principal focus of this appeal then is the jury's ability or really their their inability to fully evaluate mr black's not reason but not guilty by reason of insanity claim because the court unfairly placed limitations on the jury instructions related to that issue and specifically as we br it the issue is whether or not the jury should have been advised per the instructions of the consequences of a not guilty by reason of insanity instruction so with the court's permission i would like to focus my argument today principally on that issue otherwise i will make some brief arguments related to the sentencing as well the government's response in this case to the insanity defense was to quite effectively accuse mr black of lingering and they went to great lengths below to clarify that milingo ring is not just a matter of pretending that one has a mental illness but that milling ring also has to be linked to some secondary gain and there were several instances in the record where the government cross examined mr black's primary psychological witnesses on the fact that in previous occasions  there was a there were the defendant chose to not pursue an insanity defense because of the recognition that the sentencing consequences could be more or less beneficial for him so to be to be more specific  mr black was had been prosecuted in connecticut for an offense and there was a point at which after conferring with his this defense counsel he decided that he was not going to pursue the insanity defense because he only got six months as opposed to potentially five years or more that was testimony that was taken at a prior hearing and so on the cross examination of our witness in this case our psychological expert the u s attorney specifically elicited that kind of testimony which clearly had implications for whether or not mr black was melinda ring her choosing not to go with the insanity defense because he thought it would benefit him in terms of time that he would spend in custody so that's one example of that appears in the record courier argument is focusing on the mental illness part where it seems to me the evidence is overwhelming good in the manner in which this crime was committed he knew right from wrong and i don't see that even of a mental illness the fence was established but how he could prevail in this case the manner in which it was committed his prior record of having been convicted convicted of other crimes seems to me an overwhelming case  for worship for a jury to find and he bears the burden of proof that he knew right from wrong but i would i would agree that that is there was there was significant evidence of it was really undisputed and mr black concept different occasions actually possessed weapons but the really the main issue below was what was the reason for it and really from the very beginning there was a very grandiose paranoid view of what was happening in his life and the reasons for the possession of the weapon was evidence that was presented by the government but we also presented a fair amount of evidence that mr black in talking with a number of individuals was asking for things to happen with regard to registration of weapons the handling of weapons because he  felt a duty to protect muslim women other women from attack that he was on a government sponsored michigan from the cia to this regard he's making reference to being on assignment from our gate which could be interpreted as a reference to federal officials and so all of that was very much woven into the question of his mental state and whether the possession of the weapon was in fact knowing and so to that extent we did think that there was enough evidence and there was evidence from which the jury could have inferred that mr black was insane at the time that he committed many of these offenses the other piece of it and only intended to touch briefly on this today but  the there is also an issue that's briefed in our and our pleadings as to as a relates to the court's restriction of the scope of testimony that the jury was allowed to consider and there was a piece of it that related to his family history of mental illness  specifically related to his mother and the court placed a fair number of evidentiary restrictions on that body of evidence because it felt like the psychological expert did not have enough of a personal basis i suppose for confirming that right because the basis was simply a telephone conversation with the mother the basis for having any scientific opinion well the thing about it is that the witness as a psychological expert did put forth i guess he proffer that in a number of respects psychological experts quite frequently rely on or reports of family history of mental illness and so those sort of reports have been received in this case  although there was a fair amount of evidence presented sentencing in particular into the court at the time that mr black's mother was transients she was not the kind of person who might easily find their way into organized systems hospitals things like that in order to be diagnosed and and to have a full medical file that says yes this is you or your mental disorder but dr went did not he was not trying to make an official diagnosis of mr black's mother what he was doing was gathering information that psychologists do from reasonable sources the family members and then from a conversation with her and stuff he was even able to observe evidence of her mental illness and so argument on that point is just that under rule seventy two the consequences of a successful defense of not guilty by reason of insanity would be well yes judge moore would agree that shannon said as a general rule this is not something that should should happen in cases but it did not say that that is a per se in fact the court of course left open room for for that very argument to be made in the appropriate case and so we review for an abuse of discretion is that right  that there were some troubling things in this record that may have warranted an instruction and it seems like the court felt like it was almost handcuffed by the chain of decision and i don't think that was necessarily true the in terms of the fact of the or aside from the institutionalized for a much longer period than a maximum right and but ok yes and i do agree that that is part of that xor but there's also there was also a very direct line questioning where the government polls the government asked and so by asking in gauging this conversation is very much raising the inference the government asked by not pursuing the insanity defense in that case it actually turns out to be a benefit because he only got six months as opposed to potentially five years or more so the inference the specter of modeling the ring for the purposes of secondary gain in the form of freedom was it was a part of this record and as i said the judge the judge below with was troubled by that and the jury even picked up on it because after this line questioning it sent back the court below gave the the jurors an opportunity to ask questions of the witness and the court of course w scream those before it's in the questions that are common practice i was somewhat surprised when i wrote you know i think it varies i'm relatively new to the district so i'm not one hundred percent sure how many judges do that i have seen it in state courts quite frequently  this instance that was the procedure that was allowed and so the judge during the questions with the lawyers and decided not to allow them to be answered but the questions themselves are there illustrative of what the jury was thinking about they said is mr black dangerous case we have no indication of how a particular piece of evidence or a particular ruling has an impact on the jury but by hearing from them in the form of the questions it does give us some insight night i would be willing to agree that there is a difference between deliberations and the question the evidence taking phase of the proceedings but to the extent that it shows us that we are not we were not alone in in the in sharing a concern or a reaction to the government's line of questioning that lingering and and secondary gain in shannon been willing to give the instruction but given that shannon was what it was that he felt that we couldn't go forward on this record but we obviously disagree with that ruling would ask the court to reverse the conviction on this basis just briefly i see my time this quickly running out as to the firearms argument i would just point out that there is a fairly subtle case law that says the agency's regulation the agency's interpretation of his own regulation is not entitled to deference in those instances where the language and being interpreted is unambiguous and we submit that the code of federal regulations which defines the work pistol and uses the language of when a pistol is made and so unambiguous and therefore the court need not afford difference to how the alcohol tobacco and firearms division is interpreting that particular regulation and just to back up a few steps  originally and then it refers to make and make also includes altering so the way it's phrased as originally altered i mean is that doesn't make any sense at all  i think that this statute does not contemplate this sort of modification if that were made here no i don't think to answer your question that the statute is ambiguous on that point when the district judge said it was unambiguous but in favor of the government right originally and then the phrase make in the make includes altering i mean how can it be altered if it's going to be original if it's altered what your honor with respect that would indicate that the language is not that it is originally designed made and altered it's originally designed made and intended and so originally designed by say  whoever the firm is charged with designing weapon whoever manufacture is it and then whoever you know whoever intended it to go into the stream compound interest interstate commerce but when you're arguing that originally designed know in effect that's it's almost it's almost altering the language of the statute at least by the dictionary definition of personal which is i would i would say that many you have the agency that's enforcing the law is bringing this in effect with the concurrence of the justice department bringing this prosecution well that is that that is the feeling reg was not was not statutory language the c f r actually tracks the language of the actual united states code quite closely the only real distinction is that there's a definition of mate that is that doesn't exist in the in the primary statute so we could we could analyze this under the terms of the statute proper but it's sort of response to the government's argument that the c f r becomes relevant in that definition of made which is not made clear in the in the primary statute that govern s why can't we just look at a dictionary definition of pistol pistoles commonly defined as a weapon that's designed to be fired with want to hear and hear there's an alteration there is that for gr that's put on the weapon so now it's designed to be fired with two hands and why can't we just apply the commonsense definition that that makes it not a pistol but other weapon and therefore you have the sorry could you could you repeat the question because i want to make sure that i made my answer responsive and well why can't we look to a just a common commonsense dictionary definition of what a pistol lives and which i i think most dictionaries would find a pistol as a as a weapon that is designed and capable of being fired with want to hand this however this weapon has a fork group that has been placed on it and therefore now it is designed to be fired with two hands and therefore it is no longer a pistol but it is an other weapon and that's what the district court found here for guideline scoring and what's wrong with that that analysis i think part of the problem is that we do have a definition for pistol in the forest but if we throw the i mean if we don't have to use the c f r if the c f r isn't consistent with the statute it shouldn't be provision and you're correct what i will say is this the diction i don't know if the dictionary definition defines pistol that way but we do know that many gun owners would fire a pistol with two hands and i don't know if it's necessarily the case i don't know what  our source of information would be ripped that's been placed this weapon is to put a second hand on that's the only purpose of that as an it is so now it's been designed to be fired with the use of the four grip to be fired with two hands which most people would say that pistols not the way pistols are designed to be fired well i would say it depends again it comes back to the army i think it depends on who designed it and i mean if you're not in the language of the c f r understand we can't necessarily rely on that but the if we are it requires that it be originally designed that way in addition just because the four grip has been installed doesn't mean that it can't actually be fired because of the fact that even though this brick was added it still maintained rifled bore and in those instances you are still it still falls  within it's not it's still falls outside the language of the statute because it has that rifle or that never changes and i think that's an important piece of this situation for the court to consider thank you thank you the problem with interpretive whether the pistol which is actually a picture of it is at twenty two thirty four and the record the problem with interpreting whether or not the draco is a pistol is that pistol is not  in the statute as strange different pointed out and this court recently held in october of this year the miller case that if it's undefined in the statute you can construe a word according to its every day dictionary you believe that originally doesn't modify made as well as originally i think the first word is me affection for you when you say it is ambiguous you're talking about the c f r p f r yes ambiguous because of the placement of the word originally in front of the word designed but not in front made and intended to fire so i mean i think so it's a kind of a conditional agreement if you do think that originally modifies al not bound by the c f r which is confusing where the statute seems pretty clear about what it thinks about the word made now if you spoke with department of justice think so are you that you're advocating the position of the department of justice with if originally is also modifying made because how can you originally alter perhaps you can originally alter at the time that the defendant possesses the point that you mean that by the when it's found when it's recovered that is in that moment in time has been altered but it's not i can see it's not obvious from the c f r if you read it the way the that the defendant wants you to read it whether whether originally  how originally made can work together but then if you look elsewhere in the c f r and the statute made is defined to include altered or for her but it kind of empowered to speak for the department of justice about the c f r in the way that you describe what i can say is that what is clear from the law is that the next step if assuming ambiguity is that we look at the structure and design of the statute the national firearms act and there are several examples where a firearm is made altered into a fifty eight forty five a weapon and the best example i think you want we all kind of know about is when a shotgun is made into a sawed off shotgun one with a barrel that's been cut less than eighteen inches another example where in addition to a firearm makes it into a fifty eight forty five a firearm is when a semi automatic rifle through the addition of a part can be made fully automatic or machine gun which is covered by the n s a so i think that's a another very strong argument about what make this supposed to mean this court also looks  first agency interpretation this what mr black wants you to sort of ignore the a c s interpretation is that if you add an additional four grip it's kind of easy to visualize an additional hand  and the defendant is a rowing on the c of r and you could win by relying on the statutory definition so your department of justice or at least the u s attorney's office in your district is taking a position it's inconsistent with  arguably inconsistent with the with the c r for i may have been i may not have expressed myself well let me try to clarify one more time when i don't believe the c f r when it said  now looking at it so more helpful maybe but it states a pistol is defined as a weapon originally designed comma made a comma and intended etc our position is that originally doesn't modify made i was merely conceding that if you interpret originally to modify made then that would make it and thank us and then we have other steps and interpretation that we go to including looking at the statute first not the c f r including looking at the structure and language of the statute and looking at the agency interpretation the agency doesn't believe this is in the us they believe that you can make a weapon by adding the foreground and the way that we enforce the law isn't inconsistent with that either having a rifle or which follows the word revolver to modify the word pistol as well what basis do you have for the grammatical interpretation the context of the statute the way it the way i read it moore is that it says any pistol or ball for having a rifle or right but there are grammar rules some chords look to the last antecedent rule and things like that what should we do do  another quirk that has read having a rifled bore as pertaining to pistol as well as revolver or not the first court to have to deal with those u e maybe i'm not i don't know the answer if there are other courts who have interpreted that term but i do know that if you look elsewhere within even section fifty eight forty five the section takes great pains to distinguish between pistols that have a smooth bore and pistols that have a rifle and i also just want to point out that the handbook that black sites in support actually doesn't support it actually includes an illustration on the same page that he cites to that he points this court to that shows a pistol being modified in the exact same way that his trachea was modified as an example that the a t f gives of how you can turn a pistol into an any other weapon very obscure more sure the difference is one point and the total offense level he's an arm career criminal his criminal history stays the same because he's earned a six no matter what so his range would go from a two hundred sixty two to three hundred  twenty seven month range to two hundred thirty five to two hundred ninety two month range but if we were to fight in their district court improperly added the one point here we would have to range now he was sentenced to three hundred months so that would mean that the sentence the district court gave him which was solved the in the middle of his range would now be slightly above the high end of the new range eight months would you like to address the other issue that your opponent raised about being struck yes i just point out factually the jury question about whether the defendant was a danger or should be committed was discussed outside bar outside the presence of the jury with the judge and the defendant the government and the district court all agree that that question should not be posed to the witness so using that as a basis now for instruction seems kind of like it wasn't a preserved objection and like to address what he characterizes throughout his argument as the exclusion of family history from the jury and here the use of speculation by a single family member ont isn't family history and using it alone to speculate that the defendant's mother may have had mental illness a which is bipolar disorder and then to try to assert genetic cause ation between bipolar disorder and what he was diagnosing the defendant with which was delusional disorder and to then try to offer this as helpful and relevant and reliable expert opinion testimony to the jury i think that there's absolutely no abuse of discretion in the district court in keeping it out and even if it were the claim that he was prejudiced by the exclusion of this full and accurate account of his family's history is again i would disagree with the premise that wasn't full it wasn't accurate it was speculation and the jury didn't fully hear the defendant's defense in this case dr went was one of four experts even he testified that there was a valid information to support a lingering diagnosis in the defendant and he also testified at page id's eight hundred eighty seven and eight hundred eighty eight that for counts two and three the defendant never actually gave never claimed delusions guided his conduct for those perceptions that in fact that was reality based explanations for his behavior so his defense was in the problem was judge harmon pointed out which was step two of his defense which was that there was so much evidence that he knew right from wrong and the manner of the crimes and even with step one of the defense the mental illness there was strong evidence that he was faking and  erating particularly from his employer who testified that he said he was going to a clinic to get checks there no more questions thank you thank you your honor so i don't have much to add to the discussion the only thing that i would point out is that the modification made to the firearm in this case is not akin to the sorts of modifications that are made to the weapons that sister coun referenced that make those weapons inherently more dangerous sawing off the shotgun makes that weapon inherently more dangerous the installation of a group if anything are good we would allow a person that was three hundred whether it makes it more dangerous or whether because this is the way the statute itself we're not scoring the guidelines based on the dangerousness of the weapon are we were we're determining whether it's a pistol or any other word isn't that what we're deciding here we are deciding that here but i guess the point is that the statute that encompasses the definition of any other weapon it's meant to cover those sorts of modification the sorts of weapons that i mentioned things that are mean what we have to apply the language of the statute  or the guideline i guess we do your honor but this court has has issued opinions that talk about it is sort of the background the legislative history the reasons for the statute being in acted in the first place and so if there are no the question thank you thank you thank you both for your argument the case will be submitted with the court called the next case please