please the court devean a chant on behalf of thomas who smile i'm going to try to sort of five minutes for a bottle the government has conceded that one of the counts must be dismissed based on a double jeopardy violations so i plan to focus today on the arguments that would require dismissal or reversal of both counts and those are the arguments that center around the definition of machine gun if you agree that on the double jeopardy issue we should leave it to the district court to decide which  the you have a position on which one should be dismissed of course i would prefer that you just missed the harder count for me however i do think that the th circuit rule is that it should be we mandate to the district court for the district court to determine so t kosmo was the designated responsible person for a federal firearms license holder which held a class seven manufacturing life as such it's undisputed that he was authorized to manufacture and tool receiver to permit him to manually insert a sample machine gun bolt to determine whether it would safely extract the cartridge whether that action converted the shock tool receiver into a machine itself rendered this item a machine gun because it was a weapon it was the receiver of a weapon that was designed to shoot automatically this appeal races four separate issues with respect to that content n turning st to the question of whether the statute is unconstitutional leave big a criminal statute is unconstitutional if it is not sufficiently definite that ordinary people can understand what conduct is prohibited or if it encourages arbitrary enforcement the record in this case shows that the definition that they purported to use in this case fails both of these tests and the only clause you're challenging in this statute is unconstitutionally vague is that designed to shoot clauses that's cracked ok but that was also charged and and in the jury instructions as shoot yes and the evidence that the government offered showed that when you took the frame receiver and added the parts he did why do we even need to reach the issue of the other clause when the frame will receiver such a weapon and then you go up to the types of weapons and one of them a shoot right so right it's a frame a receiver and you want to know whether it's the frame or receiver of a weapon that shoot you had the remaining parts to make it into an o weapon and see if it shoots and that it did so here well i want to be really clear that if you're correct it says which shoots it did not say which will shoot and that really distinguishes this definition from the definition of a firearm which is which will expel a projectile or which is designed to expel a projectile or it which is readily restored to x so it uses the term will this statute does not use the term will and as the a t f agent in this case interpret it this was not a receiver of a firearm that shoots it was the receiver of a firearm that would shoot now if the court were correct that this firearm was a machine gun because when you put all the other stuff that was designed to shoot automatically so i think it was that quite interesting to read the testimony and what was the difference between governments exhibit twelve and defense so they talk about defense exhibit one hundred and forty five and he says it's not a weapon that shoots it's not designed to shoot you can't be readily restored to shoot right and then this particular item had already been  classified by the a t f as a firearm because it was a receiver so it was a firearm and it was a receiver it just wasn't a machine gun receiver if government's exhibit twelve was a machine gun that shot then defense exhibit one hundred and forty five dollars was equally a machine gun that was shot because each one of them if fully assembled would in fact shoot automatically but even setting that aside if in fact in this particular case the a t f agent did not rely on that portion of the definition he relied on the designed portion so even if a jury could on its own have determined that this item was in fact a machine gun under a different definition there would still be a problem of the vagueness of the portion of the statute on which the government purported to rely the instruction and the testimony because all automatically not which shoots automatically because there was absolutely no evidence that the receiver had ever been part of a weapon at all much was a lot much less one that shot or shot automatically but this the statu covers certain types of weapons but then it also says the frame or receiver of such a weapon so is it your position that the shoots clause never applies to a frame or receiver now automatically but now it can't be she can't shoot automatically but it could be restored to shoot automatically the shoots automatically speaks in the present tense not the future tense and i would ask the court to look at the definition of firearm which is at eighteen why governor defense exhibit one hundred and forty five was a firearm and a receiver but not a machine i've looked at the page you cited for twenty two and i do not see where he says that one hundred and forty five was a receiver  now of course this receiver stamping isn't actually a firearm it's the receiver of a firearm and under this definition the receiver of a firearm is a firearm so the a t f believes that the stamping itself is a firearm and then it says no i know it says that it's a firearm but but i thought their position was that the stamping alone is not a receiver no that's not their position fact their position is that the stamping alone is a another receiver components then it would be but you know what that seems to say that it's not currently receive it says right here since the receiver so this is a starts at your fifty five dollars since the receiver stamping you submitted is a weapon which will project will spell a projectile etc or the receiver of something i read with you that that firearm sentence makes no sense but on the next page  precisely that for the reason you say it doesn't seem to fit the definition of firearm but on the next page what they say clearly seems not to say it's received i don't i don't mean that this makes no sense i think actually that it makes perfect sense because the definition of fire arm also includes the framer receiver of the weapon when right so because this is the frame or receiver of a firearm it is in fact a firearm so the a t f believes that that item is a is in fact a firearm it is in fact the receiver of a firearm it's just a semi automatic receiver not an automatic receiver and if that's the case and they say it very clearly exhibit one it is not readily automatically and does not in its present condition and other words they go through the definition of machine gun in the nd bullet point and there would be no reason to do that at all if they thought it wasn't a receiver at all they go through the fact that it does it possess doesn't possess the design features of a machine gun is not readily restorable to should automatically and that does not in its present condition she automatically and other words they believe it's a receiver they just believe that it is a semi is different from the one that was included in the instructor yes that is another one of my arguments and i do believe that the government actually seems to agree that designed should mean designed by the person who designed it not some sort of objective test and if that test were applied in this case the evidence was not sufficient there was absolutely no evidence that mr cruz my designed this item to be part of a weapon which shot automatically i see i only have one minute left and i ha good morning your honour's leave please the court angela wooldridge appearing on behalf of the united states so focusing on this definition of as the government has stated both the trial and its brief consistently that this firearm this machine gun possessed by the defendant met this statutory definition of machine gun in two ways that it was designed to shoot and that it did in fact shoot or was the receiver of a weapon that didn't fact shoot more than one projectile with one function of the trigger pull the defendant mischaracterizes i believe officer swift's testimony who specifically stated that he tested that receiver with a clickable machine gun parts and it did in fact shoot as a machine gun so to say that the government focused only on the designed by portion is five letter said that consistently it consistently talked about why it was not a full receiver and officer swift testified consistently with that he in fact he talked about the parts that were missing from exhibit one hundred and forty five the and forty five doesn't fit is because it's not a receiver correct is not a completed why use the two thousand and five nd letter say that it's a firearm because that doesn't seem to make any sense if it's not a receiver your honor i am not sure but but it is that is actually a that's different that the definition that is and it's found in a different part of i guess but when you turn to it and you look at what words are there the fact that it's not a receiver there seems to be no other place to fit it in and make it a firearm so it is puzzling as counsel says why it's called the firearm in that letter i lack the expertise of understanding why it might or might not be be a firearm in that regard but even if we accept roominess the classification of one hundred and forty five as a firearm that has no effect on exhibit twelve which is the actual machine gun in this case and the reason in the testimony was clear and consistent with that letter with regard to what made exhibit one hundred and forty five dollars not be a machine gun and what made exhibit twelve a machine gun and how the two were able to be distinguished and the defendant's testim testimony and his statements show that he was able to distinguish them as well and so the fact that the defendant doesn't want the statute to apply to this particular machine gun doesn't make the statute vague notions that the government agrees it's not an objective  standard for designed to shoot do you agree with i don't agree with that and i'm not sure what led to that interpretation but i do believe that it is a it's an objective standard it's something that can be  that can be tested that the words have clear meaning and in this particular case the defendant designed that that receiver he designed it to be a machine gun receiver whether he ever intended to shoot it shoot a bullet through it is of no moment he designed it to function in that capacity by designing it to function in that capacity he was able to use it at least for the purpose that he proport it to use it to test machine gun bolts had it not had that capacity it would have been useless to him and that and that function that said there was certainly evidence that that was not a legitimate purpose in fact officer swift testified he himself was a federal license federal firearms licensee he was very familiar with the practices and the legitimate business practice says he's testified that there was no legitimate use for this machine gun so the defendant cannot for business purposes for for conceivably a his intent to make a profit by selling parts he can't possess and make something not some awful just for the fact that it makes his job  or allows him to make more profits by doing so just whether he never intended to actually fire bullets through that machine gun is of no moment and and your honor pointed out the distinction here in specifically including receivers of any such weapons congress intended the statute to apply to not just fully assembled machine guns but for the receivers of those of those items as well and it was uncontroverted that that was in fact a receiver and then it did in fact shoot as a machine gun and was designed to shoot as a machine gun and the defendant himself explained having designed it and how he and codefendant sink were able to make that modification he doesn't say designed as machine gun he says he designed it as a shock to leave was just going to use it for certain purposes correct why is that an incorrect in your view reading of the phrase designed to shoot because that whether he again whether he intended to shoot it in that capacity he designed it to be to function as a machine gun any said when pressed in his statement when he was questioned by special agent test in this recording statement he says as it sits right now yeah it will function as a machine gun for him to be able to say been aware of that but that's not what he designed it for so how does that fit the definition because the definition does not say that that that the must there's no intent requirement of intending to shoot he designed it to be a weapon that have the capability of shooting with the men's rib here mens rea is knowingly and clearly that was meant the defendant knew asked this item and he knew it functioned as a machine gun and those are the two knowing components of the government had to prove that evidence was uncontroverted he stated that in his statement he testified to that and so he certainly had that knowledge the defense the government never has to prove that the defendant intended to shoot it that he intended to do anything with that at all that he that he intended to do any more than have it sit on a shelf as as he did and so i think it's a bit of a red herring at this all of this focus on whether or not he designed it what his intent was when he designed it because the fact of the matter is when you when we really boil it down it's very simple the defendant knew about the weapon he possessed the weapon and he knew that it functioned as a machine gun and those are that those are really all the elements the government was entirely required to prove it was in fact a machine gun we have that that testimony those are all the elements the government was wasn't it was required to prove whether or not we accept the defendant story about a shop tool is really of no moment because either way those elements that the evidence was clear and all and overwhelming i would submit on all of those elements do the jury instructions adequately instruct the jury on how to evaluate whether it was design your honor i believe that they did i would st of all point out that that portion of the st paragraph of the jury instruction was the this court instructions if you don't take the position that it's invited error that isn't considered at all but rather that we should look at it as plain or yes your honor but but in any event the defendant wasn't prejudiced here because we  misstatement of the law i think it was a i don't think it was a misstatement of the law i it was consistent with a t f rulings it was actually language taking from taken from those rulings the defense now be i guess in a remorse from having picked that language because it didn't work out well for him now makes makes a lot of hate finding trying to find fault with the a t f rulings but it was he himself who proffered this this edition to the jury instruction so there's no there's no authority saying that anything in this instruction is incorrect it simply wasn't a theory that worked out for the defense and now he is complaining of it and i don't believe that in any event there is he's met his burden of showing that he was prejudiced by it you agree on the double jeopardy issue that we should leave the district court the decision which count to vacate i do your honor and i believe that was our that was our proposal and conceding that it that it is in here a violation of the confrontation clause your honor there are a few things here st of all the defend the defendant did not object to introduction of that certificate and so again we usually do audits going back to nine hundred and ninety eight of the and a fart he said he wanted somebody on the stand so he could ask about this record system as part of that he did with regard to the record system it but not with regard to this particular  report the f r c are finding relief he says he wants someone on the and to tell me that this is a valid determination of what's in the record system that isn't a proper preservation of an objection on confrontation clause grounds when it's a terrific it says here it is your are that objection at least from the court standpoint from the government standpoint and i believe how it was actually phrased at the at both the trial and in the motion hearing was that the defense wanted to challenge not the actual n f r t r finding in this report in this particular case but but go back to audits done in a we wanted to witness to talk about these audits that dated back to one thousand nine hundred and ninety eight which is the government's position in the which is in the court affirmed that those were relevant to the finding in this particular case and in any event the defendant himself testified that he had made this weapon and he had not registered it and so the evidence was uncontroverted that  the that in this particular case even if there were some fault with the n f r t r dating back you know twenty years before this case that it did not apply here because the evidence of non registration was clear it came from the defendant it was on controverted and we our position is there's no error for introduction of that certificate because it was merely cumulative as we had all that other evidence why it would be harmless error but focus on the question whether or not it's a confrontation clause violation to produce a testimonial declaration for purposes of trial and and explain why that isn't a confrontation  honor i would concede that if the defendant had objected to it and requested to to question a witness with regard to that particular certificate that that would be a confrontation clause violation based on based on the case law however to the planers day makes a difference there for your party it would it would your honor in any event we would we would still take the position that any are arrow is harmless and it is our position as well that that wasn't the objection that that the defendant did not have a problem with the introduction of that certificate that his that his challenge to the n f r t r was one of broad accuracy regarding audit's that had taken several years prior to your honor here though again going back to to the the evidence that that was submitted that that is that is clear that that is not arguably any sort of fair we have the defendant's own statements the defendant knew that the item functioned as a machine gun he knew that that it was not registered he himself had not registered it there was no bona fide business purpose or business ownership of this particular firearm in fact the evidence was clear that this f l did not have a license for machine guns and that was something that we received testimony about and the defendant clearly had the knowledge of the requisite characteristics of this particular machine gun but simply did not want to apply to him and felt his conduct would be an exception an exception that is not recognized in the law and that and that clearly does not apply in this particular case that in itself does not make the statute v statute is clear the statute was was appropriately applied to the defendant and his dissatisfaction with that does not create a constitutional infirmity with the statute itself are any other questions i see mine i don't think so so thank you very much twelve a defense exhibit one hundred and forty five it starts with defense exhibit one hundred and forty five and he says st i can explain the stamping and why this is classified as a firearm and as the court recognizes it's clearly not a full firearm it's the receiver of a firearm so this testimony indicated that the stamping itself was a receiver and then the witness goes on to explain why even though it's a receiver it's not a machine gun should receive it says st i can line five i can explain the stamping and why this is classified as a firearm and as the court noticed earlier that this definition of firearm must mean a receiver well  i agree that it doesn't seem to be a firearm but he doesn't explain that he's saying firearm because it's receiver he then seems to go on in the remaining paragraph say it's not a receiver it's internally inconsistent he goes on to explain why it's not a machine gun receiver he's not explaining that it's not a receiver he says it's why he explains why it's not a machine gun receiver it says at line thirteen this also has four hole similar blah blah blah which is also later on when he's talking about governments exhibit twelve he said if you took everything off if you took everything off and all you had was the metal channel this would still be a machine gun so it's sort of like no matter what you do with defense exhibit one hundred and forty five dollars it's not a machine gun and no matter what you do with government's exhibit twelve it is a machine gun and so if it's that inconsistent and even the a t f cannot clarify for three judges then for me what makes something a machine gun or not relates to his use of the term firearm frame or receiver it doesn't really go to the issue i think it does because where we got off on this track was whether or not the government's exhibit twelve that the other definition which is to shoot a magically whether it was something that shot automatically and if it was a fire a machine gun because it was the receiver of a weapon that shot automatically then government defense exhibit one hundred and forty five dollars was also that's the point is that if no way to distinguish these two based on the law it's just that the a t f has announced it and not in full dress regulation in these kind of letter rulings that they think they give to people and so in this case they gave one  the sales in march of two thousand and five saying yes it is a machine gun so it's not just it is a receiver it is a firearm and it is a machine gun and then six months later to say well actually it's not a machine gun so the a t f itself cannot determine whether something