morning your honour's claims carl again i'm representing mr kirkland i will start with the destructive device efficiency of evidence issue unless your honour's want to direct me somewhere else  there are at least three reasons the statutory language should be interpreted to require possession of all the parts first there's the plain language as pointed out in the malone case the statute says this m pointed out quote from which a destructive device may be readily assembled unquote doesn't say quote from which a destructive device may be related readily assembled with the addition of other parts unquote and there's at least three other cases that agree that means all the parts leave out that little extra sentence they threw him which said that we're limiting our holdings just to the circumstance where the explosive material itself is not present so that well no they actually say were eliminated to the facts of our case or something to that effect yes ok so we got that and then each of the other gun definition they specifically include any part that's soley designed to make a machine gun so they're clearly envisioning just individual parts in that case the third problem and i think the biggest one here in a way is that you just get on a horrible slippery slope if you don't draw the line at all the parts consider the proposed options that i've seen out there in the sheehan case they had this quote key components unquote distinction the government's reef has this quote nearly fully assembled unquote suggestion at one point another suggestion in the government's brief is all but the things you can drive to buy at the corner store and quote how do you decide those things if you go with key components well are batteries a key component frankly i would argue the batteries are a key component key component doesn't mean a key component that is dangerous like the dynamite or illegal like the dynamite for some people to possess if you go with nearly fully assembled what's nearly if you go with all the things you can buy at the corner store what corner we talking about what store how easily do they need to be purchased now batteries may seem easy or does it is it enough if it said a specialized auto parts type store i mean that you know already doesn't it because it talks about readily converted and readily assembled i mean there is this notion of how easy it is to finish it in the statute itself when you have all the parts maybe i'm not sure that any court has taken that readily and talked about how if it's too hard to put together that doesn't count i think the way the courts have interpreted and the and the right place to draw the line is having all the parts and they can be put together if you buy toys for your kid and it needs batteries and you think the batteries are included and it turns out they're not you've got the box with the car and the battery is it do you have a claim that it's not readily assembly that's actually says read only right and here's your toy and all you need is batteries it's not that hard it's not a combination of parts from which the device can be readily assembled there's lots of frustrated kids on christmas when their parents didn't get them the batteries and they found out the it's not readily available no no you go and buy the batteries but you don't have the toy the kid can't play with the toy until you get the batteries you don't have the twenty you have the batteries you don't have the device until you have the batteries now the problem to go back to my slippery slope no batteries the statute says prettily assembled right but it says that you've got the whole thing ready that's done well it's a combination of parts from which it can be readily assembled that doesn't mean going out and getting other parts at least that's what about if the radio frequency receiver wasn't there what about if the push button switch which was one of the things in the other box wasn't there you just where does the line it has to be something more than just the explosives it seems to me and and then the place to draw the line and what's consistent with the statutory language and contrasts with what they said for machine guns is all the parts and now you mention the hsien case your honor the c n case  i think is first of all problematic because it is key components distinction a second you were talking about the missing part if there was a missing part there was tape but there was actually tape somewhere else on the device so he actually had tape that he could have taken a piece off and then moved to where he needed it to make the device work you don't have to have it put together you'd have to have the things that if my client had the batteries you know sitting in his kitchen aid of  you would necessarily because you might in your mind that first of all you could you can certainly point out that the tape was there and she and second of all i would submit the batteries are a key component they may be a key component that you can buy at a drugstore but they're pretty key component this thing does it a power source in the word power source that sounds pretty important to  me so i think you can you don't have to actually vary from she and if you adopt sheehan's key component standard i think you find the batteries here a key component what about the fact that in this case that if there was s designed to be and or intended to be and i think you would have to find that this was designed to go off by static a list electricity or intended to go off by static electricity and i don't think that finding could could be made by any reasonable jury so i think that's why the static electricity doesn't doesn't work as a theory i know what courts as readily available materials and she has and you don't think that means two the government need not offer evidence that the defendant possessed commonly available material such as tape if the defendant otherwise possesses all of the quote key components unquote so i think that's the problem with she and sort of have this exception that's not in the statute the readily available materials whatever that means and then there's an exception to the exception of oh but if there are key components there's this other articulation rational jury could conclude that she has device which indisputably lacked a functional fusing system was partially was a partially completed device designed in such a way that with readily available materials it could have been converted into a functional device well but then i think that's qualified by the language i just read which is at page one twenty five i don't remember exactly where yonder and when we wanted to page one twenty five it says the government need not offer evidence that the defendant possessed commonly available material such as tape if the defendant otherwise possesses all of the key component sense as to what congress was trying to get at with with that last clause looking from the readily right there to there's two things to this but there's two competing concerns and i think your honest thinking of one of them and forgetting the other one is they want to keep these dangerous devices the you know this was the fire arms acted controls like guns federally and so on back in sixty eight and they were worried about violence on the streets and things like that and people making bombs and so on on the other hand they knew there were a lot of people out there in the commercial industries that use dynamite and explosives and blasting caps and they didn't want someone who happened to have dynamite blasting caps to all the get scripts so what they decided to do is when it's like when it's commercial explosives like that a combination of things that could be made into a bomb we're going to require first of all the designer intent and then they chose to require all the parts they chose i mean that they drew they drew a line this device i have a legitimate use separately right and so what they said is i think what they said is basically in order to draw the line between things that might be intended for commercial use and things that are we're going to require it is there anyway this is a common day for all parties i mean even on the line you're describing wouldn't congress have wanted this to be criminalized sure but let me read you the description in malone because i think congress would want that criminalizing this is this  sounds as senator if not more of the second paragraph of malone one pressure release spring top box containing a military m k two fragmentation hand grenade hole inserted rigidly to the inside of the box miscellaneous electrical wires inserted into the top of the hand grenade body one micro switch one electrical small annoyed switch one transistor battery one small low voltage electrical ball glue tape small lumina metal nails waterproofing splays spray and one container play the that sounds just a senator is what my client had and congress i think would have liked that also if the person didn't actually acquire the explosives well but  least when we're talking about the combination of parts right because we don't want somebody who just has a bunch of random stray things scattered about their house which you know unbeknownst to them maybe could actually be combined into an explosive device right that they're going to punish that person so we want some indication that the person is actually taking intentional steps to gather together the things to produce something and that's why you have the designer intent language but i think the readily assemble which gets at that same thing  and here we don't have much of a crn that your client was up to no good right that's why it seems to me it's actually i'm not totally sure of that your honor he said he was goofing off many times he said he'd put this thing together to basically show this woman who was jumping over his fence something to scare her away with on necessarily saying he was going to put it out there to try to blow or up if she tried to come over so there's actually some suggestion in the record and his own statements not so clear he wasn't just sort of goofing around and putting some together and certainly if we're talking about something like psych themselves if there wasn't dynamite in there the jury found in a special did not find dynamite it only found shock and shell shock and shells yeah if you blow up chalk and sells the birdshot in him it's dangerous but that's not what you typically make a bomb out of you typically make a bomb out of something like a high explosive or you know plastic over dynamite or something so actually i think there's an argument that he was not at that point yet and i think i'm saying he it's not like he had a bunch of parts scattered about he had gathered them all together and had basically assembled the thing but for the insertion of the power source right maybe and maybe but for insertion of additional real explosive if he intended to do that well that the jury was instructed to find that so i know what i'm saying you're i don't know i guess i'm not bothered by upholding your client's conviction because it doesn't seem to me we're in the category of cases that congress was trying to exclude the problems in the heart of the problem is you don't you don't know you just create this line drawing a problem the slippery slope problem i mean batteries you know but certainly i think if you're looking at how sinister it seems what's described to malone sounds just a sinister that's what we have here why this has been framed as a sufficiency of the evidence have a deficiency in the jury instructions because there's nothing in the jury instructions telling the jury a little bit odd to be talking about sufficiency when the jury was never asked to find this so it's like a mental leap it feels more like it's been a jury instruction issue and i'm wondering if the difference has any meaning for us i think i do broach in the footnote that if there's a key component standard that you take if there's not a key component standard out of c n n then it seems to me the defense prevails here if they he really has to have all the parts he didn't have all the parts because i want any batteries but if we rule that that in the future the jury instructions we'll need to say that right i think i think think so though arguably depending on how you interpret you know from which can be readily assembled the jury instructions might say that but i think you're right i think and then the place i think there might need to be i mean if there's a key component standard you know then it would be a jury can question whether the batteries are a key component i suppose i frankly think as a matter of law batteries are a key component if you don't agree then there's a jury instruction problem here and there's plain air in the jury instructions i morning and may it please the court angela scott for united states there was no plane air in this case particularly where we were dealing with a device that had no legitimate purpose and which was assembled to the point that as in as in most instances i the government does not believe that it's hard to distinguish between what a common item is and batteries are certainly put yourself in our shoes assuming that we were going to publish an opinion in this case what what's the legal rule that you would have us announce what's the line that you would have a strong i believe actually that the line to be drawn here is very fact specific and looking even looking at malone let's say that the evidence was that he had the explosive material at his house i think that would be a different a different and how is that how do you know that he had the explosive material at his house i think that would be a very yes he was in his car if he had the explosive material at his house i have a feeling the fifth circuit might have had a very different decision there because then it perhaps would have been readily assembled so i i don't i'm sorry i was asking for clear great go go on about your business i don't think that works so you don't have you don't have something to offer you know your opponent said that while there are these kind of three alternatives none of which he finds attractive you want to pick one of those do you have another one that's what i'm asking right i believe that in this instance key components is is not the the appropriate selection because something can can perhaps be  readily available yet may seem to be more in trouble to the device than something like tape however that doesn't make it any of last readily appropriate because that is in line with the radically assembled statutory language so that batteries do seem to be readily obtainable but dynamite is maybe readily obtainable i've never tried to buy it is there anything that makes dynamite harder to obtain than batteries i do believe two hundred individual dynamite would be harder to obtain the batteries but again that's why i think it's very important to look at them is that true can you buy it at the hardware store i don't actually i didn't try to do research outside the record on  sorry i i don't now i don't think i think that it can change a little bit because here the explosive found by the jury was merely shotgun shells and i soon that you would have to concede that those go to the sporting goods store here in pasadena get that right right under my loan it would seem that that would not be there would be sufficient evidence but under your rule i guess you'd say we would have to uphold the conviction no no i don't believe so because in this case what's very important here is that  the device was quite constructed and so let's talk about a quite constructed device that doesn't have the shotgun shells this device with batteries but not the shotgun shells when you get convicted then without the shotgun shells that i think the government easily as opposed to explosives as was the case in my own additionally in our particular case i would like to point out that this device was capable of explosion without a battery and that's why we're we're also in a different scenario than than the malone cases that are there was there was much evidence at trial that if you if you hit that device to forcefully ifs if there by design a destructive device because it was an anti personnel device so now the only question is could it depicts floated and it actually in its current form could have and was very much readily assembled if static electricity passed by  there was a safe that had totally unassembled parts and there was no evidence of intent and in that case the ninth circuit said you have to show with them intent here that it's not not in this case because of the way the device was but you know the white truck there lot of white trucks around this forget the white truck a second with a fingerprint be enough to get the search warrant yes i believe the fingerprint would be  when this all happened no one's sure who was in a way and how long they were in whether more people were in there's any fingerprint in that home on a beer can i mean you know there was a fresh beer can or empty beer can there's any fingerprint give probable cause to search a person so i believe in in this situation where it's at there's evidence of a party there's fresh fruit there's there's beer cans in that instance a fingerprint on the beer can is very relevant relevant would would any fingerprint and any home in any case and the i don't think so and i certainly can't say but in this instance because of the scene the fingerprint was very relevant and i know we all white trucks are everywhere i think the white truck was actually quite relevant too because this was a burglary and he was there the accusation which was the stolen goods were a generator and life jackets and these things need to be hauled away and so the truck is relevant for that for that purpose as well as wow and because of those unique the uniqueness of those items is also relevant to  that it would still be in someone's home after a month after is there any indication the fingerprint was fresh i mean how do we know the figure for it wasn't from stocking a store shelf i think the indication that the fingerprint was fresh was because of the party  in that the instance in which it was found i we don't have any scientific evidence saying that it was under or over something else or anything like that but under a fair probability standard i do think  the magistrate judge certainly had probable cause in this instance if the court doesn't have any other questions and there is not think you could i actually ask you your so one thing about this jury instruction versus sufficiency do you think there's any difference in how we should view this issue yes your honor in fact when i rather than initially i thought is the jury instruction question and i i i think perhaps you're right in that it would require another element and so perhaps it is a jury instruction question and under mr guns and about sufficiency of the evidence versus plain error there might be a difference in the in the standard i know in the appellant i think it was the reply brief they pointed out that you know plain error in the jury instruction so i don't have a particular position on that although i do think it begs the question that in that regard ok thank you very much for your going to let's give you some time for both a few minutes potentially sufficient evidence for a new trial that it should i don't think i mean argument i don't think the defendant in this case if you if you articulate the standard in some better way are more clear way i don't think it's fair the defendant to have expected him to have anticipated with that standard would be i think the questions you asked the prosecutor misguide highlight the line drawing problem here and we just can't go part way down that slope and draw the line she answers with things like in this instance the line to be drawn is very fact intensive we can't create a legal standard that way i think shotgun shells are if you're going to have some readily obtainable standard there is readily obtainable a batteries i wrote down some other things what if the capacitor wasn't there what if the battery box wasn't there what if the radio frequency receiver wasn't there are those things readily obtainable i don't know the answer to that this readily assemble will readily assemble because it can be readily simple that's not that's that's just that makes the point that you could have you could have these parts all over the house under the statutory language i mean mr president's case the reason he was found not guilty is there was a district court finding that he didn't have the requisite intent because of this but so you're saying he should have a new trial i guess i guess there seems to be a little bit of a waiver problem both sides like you had said we need a jury instruction saying it has to be in the house maybe i don't know maybe the government would have come up with evidence that there were batteries in the house where this wasn't really litigate which is why it feels weird though actually i think i think the jury instructions did say he had to possess the parts it said possess a combination of parts so except that we're having this debate about whether that includes batteries or not right but it's not it's not where they were in the house that was not covered by the jury instructions it's what he had to half i think fairly read the instructions  require him to have all the parts because i think that's what's basically repeats the statutory language and that's my position but statutory language mean it's but it's just as you start getting into where you would draw the line in how you would write the language i just think you get into a tremendous problem maybe key components out of she and works but that's still pretty fuzzy and frankly i think batteries are key components here so the government doesn't prevail there so i think i think the questions your honor to ask illustrate the problem of why the interpretation i'm arguing is the one you should take i could spend that a couple seconds on the probable cause issue if you  maybe your honor there's a split between two state cases that i cited and the breeze may be a fingerprint alone might establish probable cause mr kirkland was in the house but it's not just that ambiguity or uncertainty there's the uncertainty about who took the stuff to whose house there's the answer would be about whether it's still there a month later when you layer all of those uncertainties on top of each other i think probable causes and there are so first of all there's a real issue about the fingerprints to answer your questions as though there is nothing at all in the search warrant affidavit which is of course what we look at that suggests when that fingerprint got on there so you're right it could have come from stocking a shelf it could have been at his house and some prints came over and took the six pack or whatever it might be and that's the problem with fingerprints the problem with fingerprints if you don't know how and when they got there the mcmillian case that's discussed in both briefs is different because in the mcgoohan case it's still a condensation on it so we knew it was fresh from that store and it was on the counter right beside where the clerk was shot so there is good reason to think that the person who had that can was the person who shot the clerk and you had a false  defendant because he'd initially denied even being in the store and he said i touched this a few hours earlier and there was testimony from the owner that about reasons that would have been possible so i think it's it's not just the thinker prints maybe not enough and  very least we could see it's piled on top of two or three other weak things ok thank you very much the case just or he will be submitted th