form of oral argument some of us on this court certainly hope this is a merely a temporary matter that will soon be over with but that said we have a few  rules of the road that i'd like to mention that have been in existence ringback for a while and a couple of new ones are saval please mute any cell phones or other equipment but you or anyone else in the backroom may have so that we don't get interrupted second we're going to allow each council five minutes uninterrupted argument time to correct for the problem of you know delays in transmission of our voices are all the are all roles also pertain st of all please you not video of photographs or record these arguments is of the same as in new orleans and they'll soon be posted online the nd is that we have read your briefs and record excerpts we have not necessarily read all of the records so we the morning please the court opposing counsel objects a privilege to be here with you this morning i wish i could of been in new orleans for my very st oral arguments on the th circuit but i guess this is better than nothing with regard to joseph andrew so i filed my brief on do is i'd like to use my time to begin discussing you for clean air analysis some support out some some things that i think would be relevant for the court to consider with regard to clean air review just have to resist cases distinguishable from any other case that i've been able to read from hunt's perry also of the bergen case that came from this court and then from the i'm not pronouncing this correctly lava lights case i think a way level a hook a the thing i noticed on all those cases is that each and every one of those cases the  to defend it stipulated and agreed in admitted that they were a convicted felon from the very get go from the minute mr de roos a was was indicted in state court in victoria county he's always maintained his factual innocence of any  a motion to quash and state court arguing that his conduct was no nothing more than a misdemeanor because the state had failed to to allege harm and that was the critical issue and so he's always consistently even to this day has always maintained that he did not commit a felony office and ultimately he was vindicated the texas court of criminal appeals agreed with us and they basically they make eight of his sixteen predicate felonies so that makes the russos case horse of a different colors distinguishable from everything that i've read so far as far as it's very is concerned because in hunt's barry this court stated the district court's failure to instruct the jury concerning defend its knowledge of their own status as plainly erroneous so didn't we didn't we didn't object or we didn't ask for an instruction on the issue of the mens rea with regard to status and so it's understandable how this winds up with this really have issue that we're going to be talking about planar review so then the next part of the analysis is going to be the substantial rights issue and in level a that the court declined and i'm going to quote the court demonstrating prejudice under rehab would be difficult for most convicted felons for one simple reason convicted felons typically and other convicted felons and they know the government would have a little trouble proving that they knew and i want to greet with regard to hunt's barry burton him up late in those cases those defendants all stipulated and agreed that they were convicted felon but this at this point at this juncture what i'd like to point the court's attention to the rehab decision specifically page two thousand one hundred and ninety eight and justice priors opinion and on that page justice breyer specifically quotes the model penal code section two four states a mistake of law as if the defense of the mistake negates the knowledge acquired established material element of the office justice briar took issue with the government's opinion and that ignorance of the law is no excuse just in he  stated normally that maxim would be true if the defendant or the appellate in this case were to argue well i was ignorant of the fact that that statute exists but that's not what we have here what we have here is we have a situation where the defendant may have had a mistaken impression about whether his final conviction made him a convicted felon or not and that makes this very distinguishable because it invokes that particular language of the re have to sit our argument is that mr de rousseau was was precluded from arguing that his he was mistaken about his the collateral consequences of that conviction and  if he turns out that it turns out that he was correct as analysis he was ultimately vindicated his conduct well you know even more tragic his conduct resulted in no convictions whatsoever because even after the court criminal appeals vacated his sixteen felonies the the county of victorian never picked up those misdemeanors they never even sought to try to prosecute him so as he stands today he's committed no often whatsoever and that leads me to to the be on us which adds when you have language like this being convicted of a felony that includes a conviction that may very well be later overturned back in specific language i'm looking at is no the substance the substance of the actual conviction it's it's for closing up a collateral attack in the district court re half is a is a horse of a different color because it's talking about mens rea it's talking about what the defendant knew no  here's my question then if you issue is knowledge and you're certainly right that rate half or a how he pronounced it is only a knowledge mens rea case isn't it pretty straightforward that your client knew the following two things at the time he possessed weapons one that he was convicted and to develop and he had a strong appellate remedy which obviously was ultimately successful but the point is you know he was convicted of a time invokes mistake of law and so i think that's the same wishing factor because louis isn't talking about the state of law it's talking about collateral attacks and so the issue here is that mr de roos a was was foreclosed from an opportunity to get a mistake of law instruction he was foreclosed from basically arguing that he was he was misinformed and it's it's telling that justice breyer actually speaks to a mistake of law that he actually effectively what specifically he thought so you know he goes to the jury trial that the jury finds him guilty he knows that but he's still in the appellate process he knows that so is his miss day that he thought it's not a final conviction and that sort of counts until he's done with his appeals or what is a mistake precisely your honor he completely inconsistently felt that he was basically for lack of a better word railroaded and victoria county he's always claimed that they were not final the final convictions now here's another interesting issue and i and i noticed this in the in the government's petition i'm sorry with regard to the binder case i think that there's been a notion that my client acquired his our arms after he was convicted and that's not the case my client if you and i and i and i think that it's in the sentencing transcript and i didn't brief it but i wheelchair with the partial paralysis on his right side is that still the case he's he's better now and he's mobile he's out of prison he was he was at least on compassionate release and he actually had  when the f b i came to his has he was in a in may have been naked but he was in a wheelchair and had a disability of his right side correct your honor that was his contention well that's what he was trying to argue in the district court that he had had a stroke and that that the stroke made him you know as debilitating for him that was basically the impetus for them coming out to see him because he had those weapons in his home prior to ever being convicted of anything he had been can collecting those those farms for years and so he had the stroke and of course the mix on the weapons so whether he had the ability of the other whether it is physically able to dispossess himself that's interesting because he did have a property interest in those firearms before he was you know vindicated of the sixteen felonies that are now nonexistent but that being said that's the reason why we recrossed and we tried to argue that he was on direct appeal before the district court and we were foreclosed from doing it understandably given the state of the law because this is all pretty rehab we didn't we didn't i mean when i was oppression at that point i didn't think that we should bring cases have been tried right now mistake of the mistake of law and i think that would be mr druce was case right there in a nutshell that he should be allowed to argue that he was not on the convicted his cases were on direct appeal whether that does or does not  in light of lewis i understand that lewis would say well you know you're not allowed to collaterally attack it that's not the issue the issue is what was his understand of his of his direct appeal and his understanding was that he was not finally convicted and so that would be man irrespective of here it can you hear me it was broken up just a little bit oh areas well if that happens just let me know irrespective of your  have argument is there anything that would preclude this court from going the way of the majority in a bind or a case i don't leave it there is in other words that you made the constitutional argument did you not that because of the circumstances of this alleged this non crime this is not something to which nine twenty two g one can constitutionally of and that is that's how it would end up thank you for bringing that up your honor because that's the reason why i'm trying to present my arguments than this way taking the miscarriage of justice russo he did seek relief he constantly sought relief i think counsel for the government took issue with with when he filed his petition for discretionary review it came and it seemed to imply to me that my client took his time to file that petition for discretionary review which is not the case at all in texas you can't follow a petition for discretionary review until the mandate issues and so if if he would have waited for a month or two months to file that p b r it would have been untimely and his can his petition was not untimely  something that he had collected since he was twelve years old and because of a you know riding roughshod over his constitutional rights in state court he was put in a situation where he he couldn't defend himsel n to do that he believe that this court could could adopt buy into it but i don't see any distinction in the any other i know that there's some case law pretty binder up that that speaks to whether or not i incarcerated while their convictions are appealed so that is you know if you can be convicted then why can't you just be dispossessed of firearms that's at least of conceptual hurdle that you have to deal with up rationale and i by that i assume the rationale of the controlling opinion of judge ambrose joined by two other judges i think based on the cases that we've cited in our brief and we're not the only people who re read these cases this way you know the everest case the massey case especially that those cases for close as applied challenges to nine hundred and twenty two g one in our view i think other courts of appeals have read them similarly i think been direct itself there were so i think they specifically rule out as applied challenges on that basis they're a little bit less clear about whether there's this you know sort of non serious vs serious distinction but i think there i think heller itself comes pretty close to requiring i  think any court that we think the bigger a court in fact erred in light of heller because the supreme court in heller said at page six hundred and twenty six dollars of course of the of the opinion that nothing in the opinion should be taken to cast doubt on the longstanding prohibition firearms by felons now some judges and some parties have read the footnote in that case but no twenty six to say well the supreme court said those are presumptively lawful regulatory measures so therefore by the word presumption that's something that can always be re d we don't think that that can be read that way in light of what was said in the text of the opinion with nothing to cast doubt on the prohibition and then of course in mcdonald the supreme court followed up on that and repeated his assurance that nothing should be taken to cast a time when the texas c c a hadn't vindicated him as a matter of statutory law louis resolve that as i think judge poe was indicating and there's a footnote in lewis but no i think it's footnote five where the supreme court says  the statute contemplates that when people are on direct appeal as mr drewett so was at best it was after it was after he had the intermediate court had affirmed so he had yet to petition for a discretionary review and put no five lewis says that the statute contemplates that felons will be disarmed during that period the as for tying that into any also ties it into his as applied challenge vindication by the c c a ties it into his as applied challenge under the nd amendment and says i'm now sir i'm here i stand convicted of nothing and therefore i'm i'm not dangerous and shouldn't be prohibited from possessing firearms our response to that i think our complete response any conviction that has been set aside under state law and i don't know of any this is not something that's been discussed at length in the briefs or discussed at all really in the briefs but i don't know of anything that would have precluded mr de route so from taking advantage of that provision of simply dispossessing self dispossessing himself of the firearms at the time he was convicted let the appeals process play out petition the c c a for review bail and then he can possess firearms  and twenty and finally there was a point made about it there's some indication in the record there's some question in the record about whether he would have been physically able to dispossess himself there it's not something he's ever claimed to my knowledge at any point in the state proceedings or here in the federal proceeding so it's not as though there's there is any indication that that there was some dispensation that he could have gotten because of that that's just never it's that's something that's been always been with him in his possession but the statute says what the statute says under louis i think the fine a very quickly on the point about mistake of law i think the supreme court's decision and few does not overrule this court's decision in emerson which says under nine hundred and twenty four a to the defendant doesn't need to know his actions are unlawful and under henry he needs only know the legally relevant facts under louis the legally relevant fact is was he convicted of a crime punishable by imprisonment i went into his home is that i of least have not found a single case where the government had to go after a man while his conviction was on direct appeal and i think that is a grotesque abuse of power when what you are talking about is a regulatory off in this case man was not a felon who had committed sexual assault r that identified himself with the sovereign citizen extreme movement and just like a lot of oddball movements the fact that one person has that kind of literature in their house does not mean they are per se dangerous to anybody and when you go and open up the door and find a guy in a wheelchair naked barely not able to move his right side and having had cognitive difficulties from a stroke it just seems like a like you're trying to like your office in the eastern district i think that where he was yes is trying to put not just as in there rifle without going after real serious criminals i can act to mr cox albeit though he was not u s attorney and time and i don't blame aspect of the case the main reason that the agents were there was mr druitt so hadn't reported for parole he was he simply fell off the radar and it was not in the government's view appropriate for a being there there was a there was a relay from the texas state authorities to agent palomino in this case and that's the testimony in the case is that agent palomino went to his hat went to his apartment had to track him down with an arrest warrant and was soon as he got there with the arrest warrant mr  tried to shut the door on him the government was trying to find somebody who had not reported for parole so i mean just to just to complete the picture normally go after people who are violating state parole i just i don't know the answer to that i mean i think i did already i was just ranting and i guess my mind my more precise question was what i you know the problem i had at the outset as far as no i think i think you're right but i don't think again under lewis i don't think that matter i think under ninety two thousand one hundred and twenty i don't think that matters as a set as a nd amendment issue i don't think that a statue killer is a fundamental nd amendment problem no i'm sorry i believe there are legal procedures for dispossession and i would have assumed that mr druce so was was made aware of those at the relevant point in time and there's again there's no briefing on this question here about the ability to dispossess that and any way that that plays into   nd amendment as applied challenge in this would be an especially poor vehicle i think for this court to re evaluate the nd amendment law in this area whether it has to do that through in bank review or through if it's something it's able to do at the panel stage because mr so much of this comes up in such an awkward posture this wasn't a civil suit the plaintiffs inventor of the plaintiffs in cancer they're all civil plaintiffs there's a inability to play all this out in the context of a proper lawsuit factually different from all those cases i think in the factual differences actually i think the factual differences between this case and binder up are are favorable to us i think this was  in that case and this is in judge ambrose opinion in footnote six and i again i think that's the controlling opinion in the case he emphasized that the plaintiffs there were convicted of state law misdemeanors mr druce i was convicted again at the time that he possessed firearms was convicted of a state law felony that carry between two and ten years in prison and he was sentenced to four years in prison these are the relevant considerations to judge amro for example are for seriousness of the offense that is was this one how much time did the defendant actually receive that's an indication of seriousness this is a much more in that case the binder plaintiffs received at no time to my knowledge i think they received it one of them received like a three hundred dollars fine i think they were both sentenced to probation so as the court put it they're inviter up it was a it was the proverbial slap on the wrist mr druce so state law fence was not a slap on the wrist i think even after the texas c cross examination of sergeant poe the state's lead case agent he asked him was there harm in this case and sergeant post said yes and counsel said what was that presented at the state court level and of course the answer to that is no and again this is because of the way this is come up there was no need for the state to allege and prove harm at the time to prove to prove a felony or at least that was ok it's me go ahead sorry  about analyzing whether something is a legally permissible prosecution you look at the law and you can't claim ignorance along whatever but when you're talking about knowledge like i didn't know this then it doesn't matter what i mean people are not assume to know all the law when they're talking about actual knowledge otherwise there'd be no point to this really hate point as it applies to felons so this is  there is a good argument because even if the jury found him guilty in all of that he may still think he's not convicted you can be jailed even before you're convicted that happens all the time so if you can't you know post a given you know bond and all that so the bottom line is what is wrong with his argument here under rehab i mean the judge did even she under the law at the time but it's just wrong under the law now well how can you say it's not what to speak to his knowledge at the time that he possessed firearms he had served time already in prison he had served a bit he was in the texas department corrections and i don't think he could have been mistaken about whether he'd been convicted after he had gone but after he had gone to prison and i think there are other facts in the case tonight at that prison before they're convicted i mean i guess you call it jail but the bottom line is he could he could construe the law in his mind as a final conviction and he could construe that he doesn't have a final conviction i think i mean i think the henry case and the emerson cases as cited i think those go to the point about what exact knowledge is needed his his only knowledge needed that the statute doesn't say he needed to be convicted of a final conviction that went all the way through direct appeal that he had exhausted all of his alternatives exhausted his appellate avenues again because the lewis plays into it i know only market only it kind of in an indirect way it's the main way is that henry says there's the government knew you  prove that the defendant knew the legally relevant facts the legally relevant fact here in light of lewis it is was he convicted i think the district court in this case and i think are nine hundred and twenty one i think it's nine hundred and twenty one and twenty again that that is defined in terms of state law and as judge crone pointed out in her i think it was the motion or excuse me of the denial of the new trial motion that's a doc at one hundred and twenty four she says looking to that state law the question is was there a argument is not accurate but it's he's consistent i mean even in this case he can't argue he wasn't a felon can't try to put on evidence does that mean this is not something he doesn't think he really did think that and at the end of the day isn't that the question i mean i don't want to prejudge honestly i would be a juror in this case but the jurors may decide no he's making is that he just kept saying this but he didn't believe it but he was very system in this and it strikes me as some evidence that supports a lack of knowledge and if the jury had heard that and been asked about that he might have won and that's exactly what read this talking about i mean we have immigration situations where somebody thinks this certificate is the equivalent of a green card and no lawyer of the you know one hears practice would think so and yet the person thinks that and that is something they can raise even though legally they don't have a green car right i think it evidence of his his consistent assertion on this point is evidence of a legally irrelevant fact which is the irrelevant fact of whether his conviction was final on direct appeal final after exhausting all of his avenues  given the facts today had you know that the conviction would be overturned that there were no there would be no felony conviction no longer on the books are you saying that today you would not have brought this prosecution i think that's right even though we knowledge of time was still what it was that i know that the element was what it was at that time my point though is if you're saying to us today that today you would not bring that conviction do you not bring this prosecution once the conviction is off the books i'm just curious why you're maintaining the prosecution now i don't know about legal principle that requires you to continue this case today and if you judge jones as reference to mr cox may be relevant here is where whether you guys really want to continue with this case i don't  ask i think the central point though and i think the reason the reason we are here today and maybe i misspoke i am getting the chronology confused the point is his flouting the law at the time he possessed fire  let me be very explicit i'm asking a prosecutorial discretion question and so at the risk of wading into practical non evil issues my question is simply i think what you're telling us is let's say his conviction was overturned the day after you all found the guns would you have pulled the plug on the prosecution and if i go why maintain the prosecution today i guess i guess standing here myself i just don't know the answer to that question having not brought law i think that answers the question right there as far as as far as the as applied analysis and as your honor you pointed out and i grappled with this at trial with regard to constructive possession because we discussed this you know he how could he  telling because as it stands right now if you took away the federal conviction that he has for this unlawful possession of a ninety two dollars case he would perfectly be well within his rights to possess all one hundred and one firearms collector's items i mean there was nothing that would preclude him from possessing them so it's under the facts of this case when it comes to that as applied analysis dispossession would be extremely difficult and burdensome you know about a one hundred and one dollars guns and over forty thousand dollars rounds which now he's able to to possess if it were not for this for this felony conviction in federal court and so that's kind of telling when it comes to the the constitutional analysis because these are fundamental rights that were taken away from him and  prove beyond a reasonable doubt harm or so in this case there is no harm whatsoever so how could he say it how could anybody argue that it's inherently binal it to practice medicine without a license it's not just like being a sovereign citizen that's a we were talking about actual innocence and our argument has always been mr druce who has consistently claimed that he was factually innocent he committed no felony he's been extremely consistent about that are and hard part of my forgetting the record medicine without a license has always been a misdemeanor and i think it was in two thousand and three when the texas legislature changed a nd part of that three part statute which which we argued applied to license or minute now you have less than a minute i don't know whether you've been able to see the time running or not now i can see you're on so the court room deputy will have to i'm not we'll have to inform us federal agents came to complain to investigate the probation violation other than the fact that he had written some sovereign citizen letter   evidence of harm to some of the patients i read one of the briefs at least i'm a you're is i suppose saying that there was evidence that he didn't harm anybody giving  and in the state court those people testified that you know they believe they got better and i think that that's one of the reasons why the victoria county district attorney's office chose to read the statute where they they read it because they didn't have any evidence of harm they couldn't prove it