ehlers argument although i do think that there is something a little stronger here there was absolutely no objection i think united states in the sense to mr gonzalez case and in fact the government noticed the error and you know judge barnes lee i don't know what the impetus for that was if it was just not to talk out of turn of judge what i was feeling philanthropic i don't know if he i don't know what the motivation was because i was with mr guy's there's his lawyer from the onset and i have no institutional memory of any connection to the to the shelter turning to the the guilt phase issues  to have the money paid over to the united states if that's the law it would seem to me if the money was never paid to the clerk of court in the first instance redirecting the money at this juncture i could have snuck in a federal court created something that tried the murder then maybe that would have to stop or jeopardy came out stateside and i want to bring that to the court's attention from the beginning situation and then come back to their record when that case was resolved and the government resisted that and i think that that point although it's not something that i bring here in terms of  the merits claim being denied the continuance it should be looked at as a concert context will feature to my entire argument here the government wanted to move forward and then when the government stood up and were not here to try a murder case and i had no alternative but to put my two cents in and it led to that argument that became difficult at times i think creature this but in the end i submit that the defense was vindicated in why we've indicated because all the instructions at the end of the case turned out to be what i envisioned it would be at the beginning of the case and they had nothing to do with the indictment that was brought up by that green jury now what that turns on is factually what was the importance of mr medleys testimony thereupon became incumbent upon the united states to prove the falsity of that statement and that statement was never proved false and that's why my rule twenty nine motions to have been creat d there was nothing and in fact the last minute discovery that we got which i know the government didn't have so i'm not really claiming any sort of hide the ball of brady violation it was learned the night before the trial which is routine it happens a government witness says oh by the way and we got a letter where this witness guy johnson said apparently in that interview  submitted any kind of justification theory the jury instruction that i had long since passed but when i got that information i felt it incumbent upon me to go ahead and submit the instructions now before  smalling the government makes a big deal about that i submitted that instruction and that they were therefore entitled to rearrange their entire case to meet with they perceive this what was going to be my defense i'm sorry i didn't tell you i think that's not the law judge malloy did grasp that fact eventually just because i submit a jury instruction doesn't mean that the government should alter its entire strategy now those being the what were the good well that's a tough question and you know i flip this around in my mind and i'm not here to after skate or or do things you know that will just clearly give me the advantage but i want to stick to my guns here and say just because i crafted an instruction doesn't mean the government you know laterally gets to rearrange all the crew burdens and do preemptively with they should do defensively but they was there any kind of justification theory quick to the grand jury in this case and we don't know that because that motion was tonight and i did show particularized need i think in this study those grand jury transcripts should be if anything if i don't prevail on anything here in terms of the merits i think we at least need of a kid to go back down with an order please to have those grand jury transcripts released so we can see the government the government tried at the trial of this case a preemptive justification theory if you look at some of the excerpts of record and passages where the government spoke the government spoke and said part i'll assume the burden will assume the burden to prove these new elements but then later in the trial when we were settling three instructions there was discussion that i shouldn't have to shoulder these burdens and we were whipsawed into that kind of thinking it was on again off again we really didn't know where we were besides w nine and ten and then wanted to drop in for purposes of impact the murder into august nine a person in a homeless shelter hence months down the road from something happening could have self serving elements to it and a jury could dice that up and they can shoot but not so after we know the smithy suffering from post traumatic stress disorder he was suffering from depression he was suicidal he had all the markings in tracking of a person who wanted to commit suicide therefore if that was the case and he was with fourteen motions separate that count from the other count and you don't think that i would have hired my own expert to talk about compassion chart guns and struggles and how many times you can go off we didn't have any opportunity to do any of that kind of stuff and until i started making noises i submit that the united states was fully prepared to have the medical examiner testified all of that but judge one made known his displeasure and he was not happy with the way that the government was trying t and i think they backed off a little bit for that reason and dr dale the medical examiner his testimony came out to be a lot softer i think that originally expected but i prepare my case your honor in particular  t completely differently if that justification theory is contained in the account and i'm not saying that the government is not entitle to indict that case they are certainly entitled to do that if they want to grand jury process and if that's true and i'm right about that then he was indicted for one crime and try for another and that's a fifth amendment violation i'd like to reserve the remaining in possession of the firearm based on the fact that he was the last person to be seen with bronson's male who was obviously a murder victim united states file federal firearms that henry his friend who had met at the shelter had admitted shooting a man in montana named bronson our victim was bronson smith we pursued the felon in possession charges after that that we had file prior to the filing of any homicide charges by the state of montana during the course of pretrial proceedings and during the course of the pretrial interview it was determined  smith well let me back up henry told medley that he shot bronson during the course of the struggle where in bronson was attempting to commit suicide because he was a cancer victim during the course of a pretrial interview i thirty five that mr smith was a cancer victim that he did take the drinking from time to time was depressed and even talked of suicide with pills but never with a gun and actually was in possession of his own firearm separate in the stink than from any firearm that mr gosden may have had now during the course of the pretrial time period and instruction was submitted which basically announced to me that justification was going to be the defense and mak mistake looking at that record justification was the defense defense counsel argued that there was a struggle for the jury even went through motions before the jury and how the struggle could have happened and destruction justification was the defense the united states has no obligation to put whatever counsel is talking about about justification in an indictment i don't understand that there's no such requirement therefore his request for grand jury transcripts has no particular eyes need because we have no such obligation whatsoever pretrial i before you even get the justification instruction they are that he was i'm awful under and on lawful and present threat of death or serious bodily injury as an aside i point out to you that the test in this circuit appears that the defendant has to be under threat of death and other circuits and encompasses third party but i don't see that in over second he did not recklessly place himself in a situation where it would be and for would be forced to engage in criminal conduct that was my point pretrial i demonstrated i thought adequately to the judge that where in this tale and i call it the tale was true he was the one that put the gun into the mix based on that you cannot meet the second prong offered therefore in my view well for didn't allow the justification defense instruction in this case does miller did not agree with me i think without knowing that he was concerned that he would he allowed the justification defense when there could when there was not the problems to i'm not a meeting of the test and then he added to the situation by requiring the united states to prove beyond a reasonable have a dog in the third which say that the burden for a justification defense is on the defendant by a preponderance talbott which the other to criticize and don't agree with the government has the burden of proof all well and good eyesight coming i met i believe that's what a good prosecutor does i met the defense i convinced the jury beyond a reasonable doubt that justification was not appropriate here there could not have been a struggle those two wounds were mortal either one of those wounds would have the  victim to the point that there was no struggle in the need for a second shot this truly was a homicide case there and the facts were in extra completely intertwined with the position look at in this case from the felon in possession conduct so what happened here what happened here is that the defendant got more than he was in piloting he got an instruction requiring the united states to prove beyond a reasonable doubt that justification didn't apply he asked for and he got it so where is the prejudice to this than there is he got more than he was entitle to judge malloy went overboard to give him the area of defense when in my view he was not entitled to it not only did he given the theory of the defense without meeting the four prong standard of law but then he put the burden on in the united states to prove beyond a reasonable doubt that there was no justification to this which i did now with regard to the argument about what could have charged two crimes one again to counsel charged this circuit held that that is double jeopardy what the defense is trying to persuade you to believe is that the government should have charged two co what he's trying to persuade you to buy into a theory that's what he's trying to do is persuade you to buy into a theory that's unconstitutional it would violate double jeopardy standards why because possession is a continuous crime you cannot pigeonhole possessions because possession charges a continuing cutter pattern of conduct consequently the bottom line here what i ask you to do in this case is affirm the conviction because the got more than he was entitle to he asked for justification instruction he got it plus he got an extra element that the united states have approved but in affirming the decision i don't i ask you not to affirm the practice on time and i think it probably would have been less you can't how can you prove his possession in this case without addressing the facts of the case that was that the woman in the case granted in answer to your question yes i think that there would have been proof of the shooting but i had to bring in the medical examiner to show that the arm was destroyed to show that there was a shot in the torso the probably took out his heart probably not we're talking speculation here and i'd rather not do that but you make a good point by by turning wilford on its head and failing to follow it created the situation here just my level the playing field i put in the extra element on the united states to prove beyond a reasonable doubt but that i urge you not to make that as the procedure for the future because talbot is wrong dell of all and why did we prosecute it the united states has a compelling federal interest in prosecuting federal vajra for firearms violations just because there's a homicide that the state my dealing with soviet we charged first we proceeded through with our charges there's nothing illegal there's nothing dirty there's nothing wrong with that at the fine issue i can tell you what happened in this case i handled everything that the sentencing like to say that i would have picked up so i'm not trying to say that i would have had a better judgment we had a u didn't object but it's going to take that off we did as quick as we can we got it on the second the seventh day we think we preserved it if not we don't believe we've waited and i'm bothered by the waiver notion here that is that there must be situations that arise that need correction like maybe simply missing the boat and tell you recognize it if you go on stri or how would we ever have a legal issue come before this court that wasn't raised for the first time in the district court we don't we have all kinds of those cases and our argument is if we didn't preserve that which we think we didn't we don't win that argument here but if we if we didn't preserve it at that time by object then we did by rolf this rule thirty five motion if we didn't do it there the argument that you heard from mr gallagher when he says we mr kerry have no dog in the fight you know i don't think the shelters had any dog in the fight because it was an illegal sounds so therefore i think you're polling in third parties here that don't belong here because they were anything about it i think that's wrong i think you impugn the integrity of the judicial system and that's why we're here because we think that's what's happened we want to stop we want to turn it around we want to reverse to give the the legal just a spectacular judge under these circumstances trying to sort this problem and because he went on the giving the needy more than i was entitle to to err on the side of caution is not the issue the issue is what kate's was indicted and what case statement was made and i started to make the objections and judge why i indicated that we were not going to try the murder case and if you look at this record carefully and forgive me i don't have precise references but where we they wound up calling mr medley and mr johnson at the end of their case despite not implied warnings i think very direct warnings by judge moore that this case was going to turn into something that it was never envisioned to be and that's what happened and mr gast of this not indicted for that crime and i'll tell you if there had been something about that murder and just occasionally one of those counts anyone here worth his salt would have tried it differently he wouldn't want to sever the cancer and that's the way it should have been tried if this is the case the government wanted to try and this is the case the government wanted to try because we can see it in the record that's the proof of that