possession being a felon in possession of a firearm just wanted to give a context to that and ultimately like to address the jurisdictional challenge to his conviction that there are a couple of matters that have arisen that were not addressed in the briefs that have to do with the respective sentencing and that is those are two intervening developments one of them being the supreme court's decision in blakely as interpreted by am line which again we twenty eight family and and likely don't apply then they don't apply to but the second intervening development occurred within the specific legal landscape of this case and that is that mr berger has been charged with and has pled guilty to a conspiracy to and so even if a mind is overruled there's now a record in the second prosecution and i've filed a motion on mr burris to have to have the record supplemented with a component of the new prosecution that motion was of opposition to that and i don't know if your honour's have read what was added to that to the record but it's quite brief and i can read it to you there's actually two two components one of them is  the indictment itself which alleges quite a number of overt acts and the other one is an operative proof that was made a part of the record before mr berger the change of plea and it specifically addresses the conduct that we say shows that mr berger cannot be enhanced or spanish can be enhanced in this case because miss tracy brockway was a willing participant both in his illegal conduct and also in the flight and that is  or about february eighth two thousand and two defendant david gergen and tracy brockway having determined law enforcement were nearby attempting to execute a warrant for defendant david burgers or rest from law enforcement in a vehicle on that same day she was a participant a flight and also a codefendant and even on the record before this stuff lamentation the records showed that guns were stored at her house and there was nothing in the record to suggest that he had somehow government office visit mr berger doesn't say that the indictment failed to invoke the district court's jurisdiction by stating in effect an actual offense regarding the first point mr berger to read that the record i mean it possibly could more strongly reflect whether the gun was made how much craft went into making the machine gun but the fact of the matter is that that's the problem with one twenty two zero is that it doesn't require any proof of that and that's one of the reasons it's unconstitutional interested his argument is that after stewart and you know we wish that we had come up with stewart's argument but after stewart that no longer is a federal crime intrastate possession of a machine gun and for that matter i think actually was made from parts from three different kinds of guns which was a lot more similar to what's going on in stuart where it's not just a simple matter of removing one piece from a gun or adding one to the gun but it's removal and admission and there are several completely legal and so were the servers the effect is remarkably similar in stewart case he was actually a guy who sold guns parts and kits that could be then made in the guy and intrastate but he also made some of his own mr berger didn't sell these kind of things but he ordered them from north carolina and they would come and then he would put together you know add pieces take a few pieces off and his gun which came from massachusetts but when it did it was a legal gun but he turned it into something moocher so it terms of judicial economy return in this case for recent saying it's not difficult however i am going to argue that it is also not necessary even if ms just noise ruling or his finding his and i'm quoting from excerpts record page sixty that the presence of some other person in the vehicle and with the rec conduct involved in the driving and the events that occurred as set forth in the present report there just was potential risk of death or serious bodily injury to another person that would have been a person who was with him in the vehicle i think those with respect to the foot chase through the woods the reckless driving generally show that even in this brockway does not count as a person who is appropriately endangered i guess reckless driving i think itself a vehicle chase which mister berg is not challenged as a factual basis certainly is a sort of thing that endangers other people and i believe you cannot say the judge will lawyer  judgment was finding that it was reckless driving implicitly suggests that there are other people who would have been in danger or other people on the road who are flying past and of course are they able to identify as the chase is going on people who are involved in militias is too vague and i would suggest that that is certainly sufficient information for mr berger specially someone who's been in elections to know what kind of people he cannot spend time with and we offer other kinds of restrictions on people's being able to be with other people in a variety of contexts for instance people who are convicted of dealing drugs are restricted from hanging around other drug dealers no it's not a certain legal your honor but it's also easy just as easy to identify someone who's associated with this kind of movement as it is to identify someone who's involved in drug dealing or for instance for someone who's a  probationers can expect some kinds of the structures and this is really a fairly narrowly tailored one a court might have said something like you can't the safety the public you can't associate with people who are gun owners which would be a far broader  certainly montana would be far broader cross section of the population here it's a very narrowly drawn group of people that he can't be around and therefore i suggest it's a reasonable restriction with respect to the  case they required more than what stewart's case required was more than a simple turn of the screwdriver or a hit of a hammer to become machine guns and of course this court of stuart was worried about the increasing  of the the commerce clause requirement with the facts of the case so in our modern society just about anything straddled in commerce at some point where does that connection have to be stuart actually machines he makes the parts in some respects himself there's no record that mr berger does anything more than exactly the thing stuart is trying to distinguish himself from the simple turn of a screwdriver hit of a hammer there's a big difference between assembl a an item in your machine gun buy i think facts do or reference just putting together an ikea chair you get it in a box and you put all the parts that are the parts by themselves on a chair but when you're done it is it's the same thing with the machine big difference is you're not making the parts in the first place that i think is the thing stuart that makes it an interest state as opposed to an interstate nexus and i would disagree with m save myself a little more time regarding be enhancements i would just point out on page twenty five of our brief there are several cases cited which deal with vehicle pursuit the facts are much different than the record in this case  but even if judge lloyd had found that there was reckless driving he would have been in violation of rule thirty two of the rules of criminal procedure in doing so because he is to expressly disputed the fact that there had been reckless driving during the course of the flight that is the car pursuit and there was never any proof put on that it was otherwise and so even emmeline i recently had said that if there's a to this kind of event i don't know what i mean that just shows how vague the militia movement is is i don't know what that really means different people take it to mean different things mr berger is not going to know people from the militia but what would happen if he'd seen what happened a trial in this case there were parts from an f and f out a machine gun there was a charge from a half century arms rifle and then there were other parts and mr berger did engage in this and it took several hours to do it