the argument here is tied intricately to the facts that were charged in that issue and i know the court's aware with each other but to reiterate talking about a two year time period during which my client is having regularly count regular counseling sessions with parker gelbard during which time he's making a variety of statements which in the government's eyes after the facts all work are many of which constituted threats but dr gilbert makes no report during that time pursuant to terrorists he's not making any conclusions that they're actually threats he is however a lying those statements to chevron and so it's clear that this information that's passing from my client through his psychotherapist to chevron and ultimately to chevron civil counsel for a period of two years wasn't sufficiently clear at any given point in time to interrupt those events exactly which of the statements and there's some for reasonable jury members to conclude the threats were uttered and the question is and we were stuck with some of the error occurred when the jury was left without any guidance or without any specific direction telling it that all twelve jury members had to be in agreement to find a particular statement to have actually constituted a threat such as to constitute internal violation of each of the two statutes that were at issue there's a lot of discussion in the briefing about whether or not this issue was preserved and it is clear is mr that knowledge in his briefing that there was not a specific request for the unanimity instruction but the issue has been put into sharp focus during the pretrial litigation that was conducted in this case by five and i respectfully submit very effective defense counsel for the district court they brought appropriate motions including a motion for bill of particulars precisely because of the confusion surrounding the length of the events that reddish hue and the fact there were numerous statements and they couldn't quite be sure what exactly was that issue and the district court in a very detailed in thoughtful written order explained that although it was already a bill of particulars this particular source of potential confusion could be cured by the giving of unanimity instruction i read this and i look at and i think what's in front of the court will make clear that defense counsel were very diligent and there's no way to know whether in fact they just simply dropped the ball when the time came for the jury instruction conference failed to make the necessary request or whether they simply in a reasonable reliance on the district court's previous written order considered that the district court was already aware of the points and for whatever reason it was just left there after i know in unanimity instruction was given but suggest that the council knew what instructions the court was going to give at least to the moment they were being given but really knew sometime before then to and you can look and see there is not something there so if they counted on the previous order kicking  be sure that at least something that he's telling dr gelbart is also being told to chevron and seem to be that that was the remotest view really about the threats being articulated to dr gelbart may be some disagreement as to exactly what it was it was said but the fact of the series of threats was pretty well there the issue seems to turn more on intent what was it intending to have communicated on the chevrons and there was evidence both from dr gelbart and from i forgot the name of was passing on to the higher ups at chevron what sort of maddening looking at it after the fact is that this was isn't all that well defined but if you recognize this is to convert this series of conversations with dr gelbard was not really a matter of saying you know i'm june seventeenth i said i was going to do x and on july fifteenth i said why it's not so much that mr denton is accused of trying to communicate that x threat in particular  chevron but the collection of things that were being told to dr gelbart because mr denton according to the evidence from the jury could fairly find was trying to communicate to chevron they'd better take care of him in some fashion so you  or the intended throughout and for richardson it didn't matter whether it was going to be with a knife or a gun as long as the jurors all agreed on the on the threat could that be translated to this situation it doesn't matter and a reasonable one but one of the particularly troublesome facts here is that dr dale archer specifically told mr langer and this would have been in october of two thousand that in fact mr denton statements were not to be construed as threat so there was a lot of vacillation here although the court indicates a situation where one day perhaps team said one thing and then a month later is that something else if those things are consistent then perhaps the individual instance isn't as particularly critical but your honor here we do have in fluctuating he goes on vacation he comes back he calls he's relaxed he's not indicating any anger or the level of frustration that he had previously and he says things that detract or that remove from the government forced from the government's argument and then on the other hand he blows up when things go awry or when he is the litigation isn't proceeding on the face he thinks it should go how does the court propose to reconcile that statement from the attending psychotherapist dr gallagher that in october of two thousand done something offensive where they have or not that's his faithfulness that is a process of concern because we all know there can be explosions by these people after a calm period and you have no warning that is going to happen except that all three of the experts who submitted reports to the district court in this matter concluded that he was not a high risk for actual perpetration of activity once the two defense experts concluded that he was a low risk and the government's expert concluded that at best he was a moderate risk of actually doing something that's not an anon the non retired greater honors correct mr didn't have a serious issue as a serious problem with anger management it cost him his long term job with chevron he was engaged in the psychotherapy counselling precisely as a condition to receive even the disability benefits that he was receiving during these two years so there's a problem here and i agree that it's correct inappropriate for people to have and positions of responsibility such as mr langer to have been attuned in situation of different concerns about it but the minute we go come back to the question of whether mr didden has been lawfully convicted of these particular offenses and i don't submit to the court that without a specific unanimity instruction here there's no way to know what those jurors found whether all twelve of them were ever in agreement about any specific even separate apartments professional qualifications i mean i've heard people articulate lots of threats and by listening to them i can tell whether they're serious or not and as a witness i would ordinarily be allowed to testify in order to communicate as best i could as a witness observer use that that method of communication to express what it was that the observer witness i respectfully submit no your honor particularly not on these facts where the jury is abundantly clear from the very beginning that this is a cycle therapist who's trained in precisely that's when the error occurred there's no way on these particular facts to divorce this witness from his professional credentials when he starts telling the jury that mr denton in fact made a threat that for all realistic purposes is the end of all inquiries as far as the jurors could have been concerned and that's what makes it so prejudicial and that's an additional reason why admission of exhibit twenty four which in many ways is redundant of dr government testimony except i his sessions with mr denton is extensive and highly damaging to contain numerous prejudicial statements are his assessments again that there were threats but also constant are a number of references to mr denton statements about his ability to carry through on his threats his purchase of firearms he's very own three firearms and his acquisition of books about bombing and so forth all of which are highly prejudicial and damaging straightforward case very straightforward legal issues and straightforward happens the there certainly was no one the defense has made no argument with respect to there being a discrepancy between the indictment and the evidence presented as part of that scheme he made a series of statements that chevron as well as dr gelbart considered to be threats and obviously the jury considered to be right or at least threats of violence and that's that is an important issue the now the jury was also we spoke to count two was told the elements of that offense and the elements of that offensive are very clear that the defendant not only friends he used a weapon of mass destruction weapon of mass destruction was threatened to be used against chevron the result of such use were the fact that interstate commerce in addition to that the jury was instructed what the threat was what it should consider in determining whether or not threats were made and had to settle upon a specific overt articulated threat i don't think so i think it's a part of my i as an alternative argument in the sense that i agree with court that this was a unique sense in that this was a series certainly rely on what was in fact instructed to the jury with the strength of it and that was in terms of the definition of a threat in terms of count two they had to find could find that it was a singular threat and that's i think that the specific unanimity instruction or the concept of the possibility of giving that simply did not rise to the surface at the time the instructions were formulated multiple given even though there had been a reference earlier in the case to the serious about these statements he is serious about these threats and if you guys don't do something about it he's going to commit the violent acts that he claims he's going to commit so the doctor's conclusions as to the seriousness of the threats as to the potential moreover there was no unfair prejudice here because the court specifically instructed the jury not once not twice but three times with respect to how the jury  conclusions for the truth of the matter but only how he interpreted these statements to be what his mental state was at the time so the jury understood that they were supposed to listen to the article was conclusions and consider that to be a true statement i believe he was testifying with respect to the conclusions that he was making about the defendant's statements and the seriousness of those statements as they related to the defendant's demands for money and how he would how he would communicate those demands to chevron not necessary and also professionally yes i think i do believe he did testify that as part of his therapy he wanted to make sure whether or not the therapy was proceeding as he would wish he would proceed which is a leveling down of this anger and this sense of wanting to commit violence against children so it was a mixture of both it was a combination of yes at times i felt that he is and i  believe that his threats were very serious and i was disappointed that because of i wish that the therapy was going better and other times it was a conclusion that these are serious because i need to let  car accident i would not analyze analogize it as to if the doctor is driving down the street and sees a car accident and he or she comes out of the car to help the people that are there hurt in the accident and observes at that particular moment  impact than the first myself or anyone else hearing the same thing without that background but in this case article what was also an eye witness he was the in fact he was the only eyewitness in this case and he used his perception statement was a threat he used the word threats in other words he would say things he testified to i communicated these threats to mr lang or to chevron his his conclusions were always more sense of i consider these statements or i consider these threats to be serious and you should take these statements seriously because if you don't and you don't pay him the money he's going to act out on them and this this case the district court was very explicit and it g r one eighty four and gave him an instruction to the jury and said that his opinions impressions should not be given extra weight and the ultimate decision on whether the statements are specifically argued and and presented a case where he was saying i want to make this these these statements i didn't intend to connect the statements to demands for money that that factual element of further as of a plan to extort money i never connected those statements to demands for money so i figure of art misinterpreted my statements and i didn't intend to threaten those are factual questions it's different from a simple legal question of where he's arguing with the law does not apply to the facts of the issue he was contesting his his guilt and rehabilitated himself or engaged in post offense rehabilitation by taking the same type of medication that he was taking before in fact no one man even the probation officer nor the defense argued for an acceptance of responsibility on those grounds and on the diminished capacity issue again putting aside and also met the initial issue which is that the expenses involved serious threats of violence but e the there was no evidence before the court to indicate that the defendant had eight significantly impaired ability to exercise the power of reason the district court found that simply on her own belief that someone threatening to extort his fortune five hundred company must not have for whatever reason cannot be rational but yet the evidence was presented to the district court that the demands that he made were please the court since there's not anything that the government mentions with regard to the across the field issues that the district court didn't have in front of it and didn't indicate directly on the record with it reviewed our legal issues and most reporters questions pertaining to them to come to his conclusory view that the defendant had made threats there was a motion for a mistrial there was a motion to strike its entire testimony the area was very thoroughly and soundly found offensive by defense counsel and so it's not one particular passage but there is for example as an illustrated passage of page forty four of the a or b where the jury it's murder where the jury heard dr gilbert testify as to how he told the chevron committee that the defendant was quote capable of doing the things he's doing in my opinion i mean the things that he's threatening unquote that's just a representative but it's a sample of the types of statements dr gilbert's notes pervasively also contain the term threat with regards to mr dutton statements and there is no dr gilbert's view that the defendant was capable of carrying these things out of his interesting given the fact that it's actually a direct odds with what the three experts at sentencing upon and about mr then the two defense experts who said he was a low r constitution as well as the statutes and i respectfully submit that it isn't particularly where here these facts are so complex with regard to the varying degrees of interest restoration anger whatever you will have that transpired in those two years between mr denton and his therapist on the record like this where mr denton goes into what he thinks is going to be a counseling therapy session and instead is ambushed if you will by a civil settlement session his own psychotherapist says yes he's very volatile today no he's not perpetrating or making threats at this point and so on and so forth i don't think that they analysis of the government is offering this court is constitutional and i understand the court has a concern about whether or not the issue was preserved on the record below and i can't envision any reason why defense counsel strategically would have foregone requesting a specific unanimity instruction so i don't know what anybody's thinking was but i can see presented at trial was so overwhelmingly broad how could any variance possibly be perceived everything from the kitchen sink in on wasn't thrown into the trial that's where the problem was and i respectfully submit that that's why a specific unanimity instruction