the bottom line in this case is that the mr cho was a broker not a dealer of firearms how do you distinguish between a broker and a dealer  the statute nine twenty two a one twenty two seems to talk about dealing with a broker who is not a dealer that becomes a grea sixty eight with nine twenty two a one which says dealing in firearms and in one nine hundred sixty eight a dealer was defined as any person engaged in the business of would fall under the ambit of a dealer but that you concede that your client brokered the firearm sells here is that correct yes all right so i guess i'm trying to figure out why are holding it in is king united states versus king it's a two thousand and thirteen case why isn't that directly on point in that case we said that nine twenty two a one a reaches persons who hold themselves very same statute one twenty two a a one a where the defendant held himself out as a firearms dealer it's enough to prove that the accused has guns on hand or is ready and able to  procure them for the purpose of selling them from time to time to such persons as might be accepted as as customers or people are running to get firearms and you look at the facts here your client was very much holding him self out as somebody who could acquire firearms for who he thought were were clients which were really undercover agents sure so he he found sellers and put the buyer the locker transported the firearm some of those firearms were missing unaccounted for three were probably sold tried to sell them to people and held himself out as a firearm dealer he specifically incorporated as a firearm dealer and and tried to sell guns prop probably did sell guns because guns were missing and so so i'm like this case  king ordered guns received guns podesta guns transported gun and disposed of guns and attempted to sell guns here mr o put together the c i with sellers there was only one fact scenario where he temporarily handled and he had the money or guns and there was the c i and the seller  for cause of so i mean yes so so and a broker dealer can can take your order for us thousand shares of u s steel without having possession of them  right and he's dealing with you yes and i and a broker could be convicted under the statute if charged properly in this case the government chose not to charge him or proceed under the theory of either conspiracy or aiding and abetting and that was their choice and they're stuck with that choice they very the government argues is brokering a d dealer is a person who one devotes time attention and labor to dealing in firearms so what is dealing mean that goes back to the definition of what a dealer is a dealer who is someone who's engaged in the business of selling firearms not appropriate firearms sales but selling them as a regular course of trade and business here mr ochoa was you know he's convicted of the heroin sale he's basically putting together you know that cia and people who are selling guns and saying if you give me a you know if you blast me at one point the cia blasted him with one hundred dollars he's not selling g trade or business you have to have the principal objective of livelihood and profit here all he says is you know if you'll blast me he asking for a tip are you saying that he was the source of the sale of firearms out of a gratuitous nature that he possesses or i mean it's pretty obvious it was the principle motive profit in this somewhere whether it was chaos or something else there was a quid pro quo wasn't there there was never an agreement that he would get paid there was mean in writing and signed well even oral agreement there was testimony that up for deal flow three to go through and one that doesn't yes and there was an opinion that bless me means give it give him some money but it was and it's but it's all called dog you know it's i'm not trippin dog if you'll bless me so it's a it's a request it's not a deal and then finally one twenty two a one twenty two a twenty one c also provides that there must be repetitive purchase and resale of firearms i see that i only have less than two minutes left win incorporates the conduct committed by this particular defendant so there's the plain language of the statute there's also the structure history and purpose of the statute the gun control act of nine hundred sixty eight the fuel plain language of this or a much more to the term dealer for what dealing means in nine twenty one eleven you'll find that if any person engaged in the business of selling firearms why i would submit your honor that this defendant who is constantly facilitating the movement of firearms on the black market by arranging the date time and location of transactions by negotiating the price by attending the sales of those firearms and overseeing their occurrence  and by sending his son off to to try to get firearms for resale this is a person that's engaged in the business of selling a blessing getting paid from the record here i mean he asked for this whole thing in light of all of these business of dealing in firearms and that's defended model truck bird spooky and should feel no the ultimate sources of the firearms in each of the three deals three to four deals are all engaged in only those deals so bird is engaged in the first deal spooky is engaging in second and chief you know is engaging the third and fourth the government didn't have evidence here that any of those particular individuals was engaged in a regular course of trade or business with a profit motive it as a result are my i doing this because i'm going to get hooked up all of that viewing evidence most favorable to the government easily makes out a profit motive for this particular defending your honor so conspiracy liability would have required the government to show that mr cho was cho was agreeing with someone else to commit this crime to engage in this regular course of business again there's no one else who we can see with dealing without a license engaged in a regular course of business that if somebody engages in the conduct this defendant and asian he can't be prosecuted at all it any time the government doesn't have evidence that the source of the firearms is is engaged in a regular course of trade or business with a profit motive the government could not charge that person at all your honor with regard to the nine hundred eighty six and then the purpose of that is very clearly to carve out a specific subset of actors from the reach of the statute it is not to wipe out all the old himself out as a source of firearms the defendant's brief in part there's there's one little sort of almost there's a there's a portion that well the statute defines engage in the business as devoting time attention and labor to dealing in firearms as a regular course of trade and business with the king case doesn't actually directly quote the statute it actually it instead it quotes the comment to the model during instruction and it replaces the word dealing with the words out and so defendant in his brief in his reply lights upon that and essentially the argument is aha selling is the key word well it's not it's not in the statute and that it's source in the model jury instruction is the briar case from one thousand and seven which doesn't have some sort of considered distinction between dealing and selling but instead it's just sort of an error in the language in the model jury instruction comment and in the king case if this case if the defendant's conduct in this case were found not to fall within the statute a person would be free to engage in the conduct that this defendant engaged in without liability so that includes roving gun store keeping no records of his the disposition of all these firearms and without keeping long foresman apprised of the conduct which is which is all required if you are a licensed dealer this individual wants to sidestep all of that and continually and repeatedly facilitate the movement of guns on the black market without any liability and that undermines the statute with the instruction given by the trial court concerning engaging in the business of dealing in firearms one offered by the defendant it was your honor and it was the model jury instruction circuit that's correct with an instruction issue should so much as it was a sufficiency of evidence certainly they preserved their motion to dismiss under rule twenty nine but the jury instruction issue was not heavily litigated also the government has decided to stop the investigation and bring in a helicopter and confiscate the guns well if you didn't object to the instructions the court gave in this whole or the law here i don't think your argument may be with congress and not because the court gave the jury instruction that you requested a judge can you point it out and you didn't i mean why would you objected it was it was the this case from a rule twenty nine so that this court is presented with the issue of whether a broker and the district court found that he was just a broker that he didn't make any sales and so the question is what were his actions was there sufficient evidence that he was a dealer and you're saying i'm looking at it but we have to look at it in the light most favorable to the government and say the jury was wrong that the actions that they heard about and the evidence was presented under contract in which the title doesn't pass and agrees that the possession is on behalf of the owner and sells on consignment charges a commission he's not  so you can get there so i would refer the court to the two a t f rulings it depends on the facts you can receive a commission and not have to have a license if you're an firearms in advance and for the op then you do need a license so what so there are there are different ways that the government can prosecute what happened in this case but they chose the wrong statute and they they should have done and if they want to stick with the statute they need aiding and abetting or conspiracy his actions under the law under correct interpretation especially looking at nine twenty two a twenty one