the court will now hear argument in the case of united states of america versus todd russell three he's number thirteen dash one zero six five four spot appeal and these arguments represented a severed portion of his case the first case had the opportunity to argue in front of this court about a year ago which was the chemical event and the false statements so i'd like to start off with first talking about mr friezes sentence that he received in in this case in front of your honor's it's the defense is because the pellets position that  sixty months forty months were to run concurrent and he received a twenty month consecutive sentence and in the appeal that has been advanced on behalf of mr freese i would the court is probably well aware of all the sentencing guidelines i would just call your honor's attention to for a one point two small a two and it says that if there is no intervening arrest prior sentences are counted separately unless the sentence resulted from offenses contained in the same charged instrument and these two counts  completely different conduct because that counts can you hear me right the are you hear me ok yes or the counts on which he was sentenced in the most recent trial arose from the execution of the search warrant at his home when these devices were found and i thought your argument in support of severance was it would be unduly prejudicial because that didn't have anything to do with the assaults and harassment and basically the weapons the chemical weapons issue that we talked about the last time that that's that's that's correct one of the the honorable judge pile was a magistrate did his findings and one of the reasons for the severance was that there was no victim and no motive connected with these devices and it was the government really was very vocal in attempting to oppose the request for a severance but if i didn't file for a severance my doing my might have been responsible to the client and what i'm not criticizing your lawyer  i guess what i'm if i'm being critical at all it's in the analysis of whether or not under for a one point two a one the conduct on which he was convicted in the second trial was part of the instant offense that he was convicted of in the first trial do you understand my question i understand your question but if you get it i don't know if the the language under the it says trial then does and that continue to sentencing if they're unrelated for trial how can they then become related for a sentencing purpose well i can only go by what's what i was  controlling language in the under the sentencing guidelines i understand that the government said and the pre sentence report said that this is relevant conduct and that's why the sentence part of the sentence was was consecutive but it's the same charging document and there's a case that talks about that it's the gonzales case which is a night circuit case united states versus  separate days so i think that but it does cite the the very beginning of the case it says the section i said provides or prior sentences must be counted separately unless the sentence but that wasn't the issue if he didn't file the severance does that mean that he wouldn't have got any consecutive time so i would kind of like accordions not i let me i think let me come out from this perspective the government could have charged in two separate indictments that counts that were before us the last time and the counts that bring you here today and if that were the case there'd be no question under gonzales that the district court could treat the conviction on the first set of counts as prior offenses would you agree yes so then the question becomes whether the government which shows to include all four counts in the same indictment but granted your motion to sever them into two trials in a fact created the same situation that was before the court in gonzales right so why not well because that's not what happened what happened again it is the it was in the same charging document and i know the court's position and i felt that was a legitimate issue to raise for the court ok i just i have a lot of issues in those let me if i may win this point let's assume that we adopt a bright line test as you say nevertheless i come down to what difference did it make under both guideline ranges the sixteen months is within the range secondly there's no quote action as to the sixteen months the action is the twenty months of consecutive time and what is there to indicate a probability that the judge if he reduced the sentence to fifteen months would have would have reduced the consecutive time and make a difference she gave him one hundred fifty one months on the first event and that was so she heard this case and she felt forty of the months should run concurrent you know the other twenty months ran consecutive and again  i don't want to waste your time here but i just go back to the language in that in that sense i think i understand what the court's has sort of responded to me but i just look at that language i guess the question is do we look at the fact that it was contained in the same charging instrument or do we look at whether or not it arises out of the same offense conduct but this is the same charging document doesn't say that you say no no no i'm not i'm not disagreeing over that but but the question is do we focus for purposes of establishing your bright line position soley on the fact that it was contain all four counts were contained in the same instrument versus what the rule the sentencing guideline seems to talk about which is whether or not they arose out of the same often right i'm hating my head on that ok now what would you like to move onto to do a different very quickly the next argument i'd like to talk to you about is the  warrant and supported with the approval of a federal judge she says on may the thirteenth two thousand and eleven law enforcement officers executed a search warrant on the defendant's hall she gave her personal opinion on guilt she said the defendant basis of defense a concern the trial court had limited the explanation as to why the agents were at mr rises whole wen when the devices were found right but she still argued on may thirteenth law enforcement officers executed search one of the fence house and this judge jorgensen told you not just guess or speculate about the reason for that but law enforcement officers were lawfully at the home of todd freeze and they searched the house well i guess my question to in light of the district courts a to him to limit the impact of why the officers were there how there was prejudiced error from what the court instructed the witnesses to say well i basically outlined a number and that was just specifically with regard to whether or not a federal judge had authorized them to be present that's what i'm focusing on right now i just  obviously i did have a discussion with the judge i was concerned about that i could future that tried to have something it was going to come in i felt and letter so that we review that for abuse of distress do we review that for abuse of discretion what's the standard of review of the district court's ruling on what amounts to a motion in limine i would respectfully say that i would ask the court to look at all of the areas that i felt that the prosecutor may have stepped over the line and look at them both sort of a cumulative human error wrote i felt she misstated the evidence she said that my client knew this was a bomb he went to new mexico get these devices because they are illegal here in arizona but  testify that he had purchased them at a roadside stand house in new mexico right at a roadside stand so what's improper about the prosecutor recounting admission that your client made on the witness  she's saying that they were illegal here in arizona so she was claiming they were illegal in the state of arizona giving her opinion about whether or not all in arizona or new mexico i know he said she said he went to new mexico to get these devices because they are illegal here in illegal in arizona and of course he was being tried in arizona for possession of illegal improvised explosive devices right then and she gave her personal impression she said about the club says you may recall  the gloves were in a drawer in his home where there were the b b s and there were these devices and the cement and she claimed or she made an argument he didn't want to leave any kind of fingerprints you can assume the reason why is because he didn't want to leave any fingerprints on the device it didn't he had made on cross examination that he wore gloves yes why is that not a fair in for authority from the facts that are already in evidence before the jury well i thought it was her personal opinion her personal giving her personal impression and i thought that i'm a prosecutor has no business telling the jury in visual impressions of the evidence so you don't think that the prosecutor can ask the three draw that in really had a problem with she said that if we know what he really wanted to do with them the defendants intention was something different than the pack rats so and again the motion for the severance was based upon that there was no motive for no victim yet in her rebuttal she's saying that these devices and her whole defense was to eradicate these nuisances packrat was something different than he was going to go out and do something with these so that was his defense right the reason i had these things was to get rid of berman right right so what's wrong in arguing to the jury that that defense is not worthy of belief because of the other evidence that the jury heard about the book and you know how to get people in that sort of thing is not a fair are about the about what other about the book and and you know how to to do bad things to people that you don't like but i had a problem with that book too i understand i understand but i think i'm still trying to understand what i just what's wrong with the prosecutor arguing to the jury that the defendant's defense is not credible or worthy of belief based on the other admissible evidence in the case that isn't that fair argument or right but it puts in the mind of the jury's going to do something for you know nefarious with these things go after people or something when she gives it indicted for that i mean that's the whole question the jury has to decide whether or not the government has proved beyond a reasonable doubt that that's what he intended to do i have about your marriage and forty seven seconds and i would ok and so it's not going to use our parole as i remember right but that's a different analysis then for prior sentence would you agree you know my analysis is because i have like a nice circuit published opinion that that discusses that's really true it makes no mention of that but it doesn't analyze that particular ok ok we're on the same page ok thank you dr about four minutes left  ultimate question to the to the district court properly apply the sense in guidelines in this situation i think that the guidelines really don't have much wiggle room here it's a straightforward application of the guidelines and the conduct in counts three two prior convictions and the question is how do we calculate the criminal history based on those true to park and convictions here to defend it really only had one and gonzales would perhaps come into play if the defendant in this situation was  convicted for a third offense and the question wasn't sensing hey what do we do with these two prior convictions but that's really not at play in this case the next issue about the sensing is one of fairness was the defendant punished twice for the alleviated by the actual sentence that was imposed in this situation twenty months which was significantly below the fifty seven to seventy one month guideline range finally as to the sentence another issue  then it in some limited circumstances the admission of that material is appropriate and that's what happened in this case the counts of conviction were simply the knowing the action of unregistered explosive devices don't isn't the only mens rea knowing that you possess the devices without regard to what your purpose is for doing so there's two sides to  count three are your original count three which we can count one which was knowing the characteristics of the devices they required them to be registered you don't have to know that it needs to be registered you just need to be aware of those characteristics and then for count four which became count two there is a requirement that the defendant intended to use the components that were found as a weapon so the contents of the book go both to showing defendant's intent to use the components as a weapon and also should help show that he was aware of the characteristics that require to be registered the argument the one of the arguments that i want to make in the last couple minutes i have is the tapestry of all of these statutes under title twenty six and right sorry about that f the chance you take when you don't trust an issue on direct when you're giving your argument because if the government doesn't go into it then technically you're so i never got to talk about the registration requirement i never got to talk about twenty six fifty eight twenty one how the taxes supposed to be made i never got to say that this was an excise tax  because because the court said those issues were relevant that that was not the that was those issues were not related to the charges that were being brought it was kind of an effort to  is as to those devices as to whether first of all that to pay the tax you have to be a manufacturer importer or a maker and i was unable to develop that what he had here were these he had these  figures and they said they were the size of a plum and then he had these cylinders and he had i believe twenty one twenty one cylinders so he had twenty one so he modified them but he didn't you know why wouldn't that be manufacturing even if even if as you say there are the regulations contemplate the payment of the tax by manufacturer  well i think that he would have at the end the jury instruction was a general knowledge instruction and then there was a staples instruction it got very very i think ivery confusing and i  just felt that on his behalf i was unable to develop the tax aspect of the of this of this situation and what needs to be done i have these devices had no marks on them they could have been made at in  another in another country the the plum size spherical devices and the cylinders but i just really felt judged testified that he crossed state lines and purchased them in new mexico and then brought them back to arizona so what difference does it make whether they were made in a foreign country or well there's there was one case goodson that says that they have to show they were manufactured in the united states  and also if you look at this case coombes that i cited and i'm almost done i have eleven seconds it just says that this was a short barrel case of mere possession of a short barrel rifle is not illegal under this section it's possession of a firearm made in violation of some other provision of the code that is prohibited under section fifty eight sixty one c so i just thought that this these tax arguments were could co joined with the the devices and i felt i was unable to fully explore that with all due respect to judge jorgensen thank you judge thank you mr sacks i will give you a minute if you wish to rebut solely on the title twenty just very briefly the goodson case was over forty years old it's never been cited by any court in this and i circuit and it really has no application here in terms of it being a tax  case really not relevant and because these devices had no markings they couldn't be registered at the testimony from the custodian of records or that the expert related to the registry testified that if someone had submitted these devices for registration they would have been returned as rejected because be impossible to read register them that's that supplemental excerpt of record page one of three all right gentlemen thank you for coming to san francisco to argue the case the case just argued is submitted we hope to get to a decision now fairly we'll get it to you as soon as we can