if i may proceed your honor the government has urged that this is not a prosecution involving a person for the mere possession of explosive components but a trial when you look at the evidence when you look at the record they primarily for law it and emphasize two things it was appellants possession of explosive explosive components and his knowledge of how to use those components from the government basically asked the jury to make an assumption that it had to be him who had made those destructive devices so the crux of this appeal is that they failed to present evidence of a nex connecting appellant to the destructive devices that were found on the property and i was on his property yes sir there were six devices that were found inside the home and there had been one further to one other device that was found in another area on the property and then of course there had been not one but two explosions on the property well isn't there a considerable emphasis on how long it might take a string all act together because he had been gone from the house for a long yes there was this on that and in fact there were a core set of facts that included his daily routine basically leaving every morning at about five thirty to meet with his son spend that two hour period at a coffee shop and that two hour period was essential to both sides of the of the courtroom in terms of the presentation that was made but it that was in addition to that however you also it was pretty much undisputed he lived on the property he lived there alone he had a shed where he stored as tools and the explosives that he had used when he had been doing mining work and farming work and that kind of stuff years earlier he definitely had knowledge of explosives but the routine i think was very very important still that routine didn't bring forth or didn't establish anything having to do with knowledge that he had those destructive devices there was no evidence of knowledge and that was essential for proving the case are you saying that you can never prove this crime through the use of only circumstantial evidence is that what your argument boils down to no i'm not saying that at all but i think circumstantial evidence has to show the person is somehow connected to the explosives there has to be a rational reasonable link we don't see the link here a an argument that it had to have been him we that's why we're here  we were urging that that doesn't cut it that's why we made the argument that if we had something such as motive some reason for why he would have done this i think that would have bridged it but we don't have that we don't have that at all and we are talking about someone who was seventy five at the time and we're talking about everything he owned and losing everything he owns and putting his own rig his own life at risk without an explanation for why the whole argument doesn't make any sense and i think the jury was entitled to have some information because that's too big a gap to ignore if we look at the cases from the circuits the oba case or the patterson case for example there you have defendants who were fiddling around with components and made destructive devices but they had reasons not logical reasons but they had reasons they didn't like their county and washington in one case they didn't like the city of oregon another they had targets so there's a there's a connection there's a nexus in our case we don't have that we don't have a motive we don't have targets and we don't have the lead in to we don't have any incriminating statements at all either this was a gentleman that was taken into custody he was interrogated by experienced law enforcement officers and all he kept repeating to them was i don't know what you're talking about and he denied that he had knowledge of these  devices and he answered their questions as best he could he had met ownership of some of the components the ownership of the components is not in question i don't even that was not disputed at the trial but again with everything that the coffee can well the thing is that this wasn't just putting together components this also had the elements of the shrapnel which made it a destructive device that shrapnel had absolutely no commercial use and that that's that's why he was indicted for possession of a destructive device and not necessarily for making one if we get into for example the sequence again of that day his leaving to meet his son for that two hour period the government did urge judge that it was not possible for someone to put those devices together unless they had the level of experience with explosives that mr sure had but from our perspective that's not the only way to look at it because what that really means that there's a two hour window of opportunity for one or more other people with experience to put those devices together that your your argument just is that there's another way to make an inference from the proof the trial that's correct leads one down to two to reasonable doubt yes but the cases tell us that we have to view the evidence in the light most favorable to the prosecution they prevailed in this case and it is an entirely reasonable to string all these things together and come to the fair inference that he knowingly possessed of these devices we don't believe that  that is possible in this case because you've got essentially the government trying to present a line of evidence but then you've got these tremendous valleys and gaps and things that are missing which we don't believe a rational were if our position makes sense which we believe it does then somebody else may have done this thing and certainly the governments assumption that it was not possible to make it within that two hour period that fails to give us your of them are just gap in the evidence that no inference could leap the largest gap in the evidence and has to do with the fact that this man never really entered his home there is no proof that he ever really entered his home after he went to meet his son at five thirty that morning he was on the property at the time of the explosion but from the interview that the that the agents conducted he was taking care of his fish he was tending to the rental property because he had a separate unit on the property at the time of the explosion the first explosion before the second explosion he ran towards the shed and that one went off and that's when he got hurt so you have no evidence that he ever reacted and that's crucial because the government had a witness an agent testify that these devices that were in the house were in plain view and therefore he had to have seen them but if he never really entered and there's no evidence before the jury that he ever really entered then that whole concept that whole theory that's nothing more than an assumption without any substance whatsoever and it was unreasonable for the jury to rely on it so if  or he didn't see it how do you explain the a dynamite for the retina mine residue found on the handkerchief there was testimony that the when when you are in an area where dynamite is stored that particular type of residue is essentially gases can come into contact with you on to your clothes on to the handkerchief just by being in the room it was stored in the shed where he kept his tools and i don't think it was  counsel here from the government at this time connected in the front residence buy buy buy outlet strips and circuit breakers and strung together with wires there was no evidence presented that these devices were capable of being set by remote detonation furthermore the government would argue that even if it were possible to set them by remote detonation it would be an incredible coincidence that exactly at the moment that the defendant entered that shed and placed himself in the position of greatest exposure someone from outside the property could see that and remain unobserved in a residential area and prescot valley in the early morning hours at this time around seven thirty to eight o'clock in the morning your honor in the government did not offer proof as to how those devices were set off nor did the government as the defense notes point out a motive in this case it's not always possible in a case to present either a motive  if there is i just wondered if there were somewhere in the record a description of technically how it occurred and surgeon electric line whenever there was none your honor ok there was evidence that's not part of what was submitted to the court as to how these devices could go off but for the purposes of this appeal will focus on what's in front of the court what's not your you say it's on the record but not in the excerpt that is correct your honor and if it would help the court we can present that as a supplement to this last thank you your honor i'd like to focus in my time on the intent and next this argument then on the gap in the evidence that the defendant proffered and finally on the complimentary forensic evidence in this case the government urges that there is no intent requirement in a possession of an explosive device case and that talking about a nexus is just a back door way of trying to get to intent it's important to recognize that the jury was clearly instructed in this case by the court in a special instruction on the record that the jury could not find the defendant guilty just because the bombs were on his property they also had to find that he knew that the bombs were there and that followed into trajectory of the bombs that went off the explosions corroborate the fact that there are bombs and as a result the motive or the intent that the defendant has is not relevant to this inquiry nexus is also a  funny term to use in this concept in this context it's more akin to a jurisdictional argument whether someone has a connection sufficient to be sued in a particular jurisdiction hypothetical involving a firearm possession case might be any deep set connections of the gun in the past or any intent to use the gun in the present or the future and so for those reasons the government believes that in this case it's the possession the knowledge of its existence with the power and intention to control it or the physical control of it and if i can focus on that timing then the largest gap in the evidence that the defendant talks about is the fact that there is no evidence the defendant entered his home in the hour and a half after the hour and a half to two hour gap in which he was out for coffee government admits that that fact is not really a relevant one to the inquiry the key fact is that the defendant says when i left that morning there was nothing in that house he says that in the interview with agent killed so in the hour and a half to two hours that he was gone even if the court adds the approximately half an hour that he was cleaning up around the yard the defendant speculative version would be irrational a third party i would have had to believe would have had to enter the property find in the garage the dynamite the preludes the shrapnel take those partly to the shed partly to the upper residents go into the upper residence through the security cameras multiple cameras that the defendant talks about in his interview link up the wires and spread them throughout the house tie them with the mining hitch find the cans either find can in the garage or clank up to the house through the residential neighborhood in the early morning hours with these tin cans all without observation and under these circumstances the government contends that that is not even a rational opposite view or alternate view of this case and furthermore that it doesn't detract from the i'm sorry it's clear from the evidence they came from the garage we believe that your one hundred one o three describes more particularly that the companies were stored in the garage the garage that blew up so that there was no evidence of those anymore but that dynamite came from the garage and the blasting caps were also stored in the garage consistent with what was there and that the shrapnel most importantly was from the garage and one piece of shrapnel was identified by the defendant in the interview as having previously been stored in that garage now of course the other thing that was stored in the garage is the dynamite in this case and it's the presence of the dynamite in the garage and the residue on the defendant's handkerchief that the government contends is further corroboration of his presence of his possession of those bombs not with rounds where the tools are so great the some of the tools it was the garage that blew up and went into the neighbor's property mr flippin who observed him and it was the shed in the front of that rental property where some of the tools were stored the jet also had a mine or destructive device in it which is why the government contends that a third party intruder would have had to go into the garage take some to the shed and take the remainder up to the house it's undisputed that the residue on the hanky comes from close proximity to pre explosion dynamite the government contends that its view of the evidence supports the inference that the defendant was touching the gummy dynamite when he was cutting it in half and therefore that's how it got onto the handkerchief it is of course possible that the residue got on the handkerchief from non touching close proximity simply walking around the garage near the box of dynamite the problem with that is that the jury was instructed to consider th sufficiency or consider the evidence in light of all of the evidence in the case and the defendant's statements are instructive here the defendant tells agent hill dick sure i had that dynamite on your one hundred five i had the dynamite but i last used it ten to twelve years ago and since then i've neither seen nor thought about that dynamite that statement which the jury heard is highly unlikely with respect to residue still remaining after not having seen or or thought about that dynamite for ten or twelve years and this gives the jury a reason to disbelieve that statement of the defendant and so for these reasons the government believes that the jury can focus on the circumstantial evidence in this case the defendant's experience and ownership of the dynamite is perhaps not as important a factor as some of the others but his presence on the property is important the timing the limited time to construct this device and the presence of the defendant exactly at the moment of impact combined with his actions and character his son says that he's paranoid and the security cameras may corroborate that he's an old fashioned guy that keeps things locked up says the bowling alley friend he leaves the site after his house is blown up and he doesn't even tell the sun that his house blew up until later in the day and finally the absence of any observed third parties and the testimony of the witness who shortly after the second explosion observed just one person running around mr schuler supports the fact that it's rational that the defendant knew the devices were there and that he knew the devices were bombs and for that reason the government urged the court to uphold the conviction thank you for your argument counsel re yes thank you very very briefly i don't believe the government means to imply that the security cameras were operational i don't believe there was any evidence with regards that suit to them being so with regards to not seeing any dynamite misses the point it was in the dynamite was in the same shed as the tools that this gentleman did nothing but work on his property he had rental property which he maintained he used tools he went into the shed so i don't think that that's necessarily a significant point with regards to being on the property it's his property he can be there whenever he wants he can be outside inside it's his property and the fact that he's there isn't consequential with regards to leaving the site after the explosion all i can tell this court is that it's clear and on this beautiful he was injured after the explosion he was treated by medical personnel he walked away he had head injuries he had a chest injury if a friend found him at the same place because apparently he walked over to the to the bowling alley where he would which he would frequent and then from there he was taken to the hospital so the fact that he didn't remain or didn't act as a rational person after sustaining injuries i don't think it's as significant as the government would ask the court to make it finally i would almost find there's the physical impossibility factor if this is a residential neighborhood and nobody there's no witnesses to show that this seventy five year old man with physical problems carried any heavy shrapnel as was testified to into the house who knows how many times without being seen there's no evidence that's a major gap and that should have been explained to the jury it was not and since the review is the novel we would ask the court to look at the entire picture here and we would ask for a reversal of this conviction thank you counsel thank both count argument the case just argued will be submitted for decision