challenge to his conviction under eighteen u s c section one one three a three which criminalizes assault with a dangerous weapon an assault done within a federal excuse is actually an element of the offense to be disproven essentially by the government to be addressed by the government and obviously the government is of the view that this is an affirmative the fence to be treated under the dixon slash allston analysis and this is really the highlight or that the highlight of the differences in the party share summing up the burden of the government then the government by showing by having the testimony of the one guard who said he would have removed mr taylor had he from the yard had he been aware of this situation doesn't that knock out one element of the justification defense in any event so the properly submitted to the jury for all i know is the jury may have rejected that testimony as not having been proven beyond a reasonable doubt the point is or the problem is that it was not submitted to the jury on the  on the theory that this was an affirm that this was an element to be proven interestingly the government in its pleadings treated it at least in its initial clique's treated it as an element to be proven because they pled without  cause an excuse in the indictment unlike many of the cases upon which they rely on now and say well this this this isn't an element to be proven most of those cases or many of those cases are really pleadings cases where the  language of just cause and excuse was not pled in the indictment and there was a challenge to be and most time passing in stating the crime they have to put it without just cause or so you say that they wouldn't have set forth but it seems to me that that going in it was treated as an element of how do we know they played it as an element of the answers of the just pleading at the way many other things are pleading and we don't there are except that the indictment is very statute you know as as this court has said i think it's the penalty case that interpret in criminal statutes we want to give you know plain and simple language and give definition to through to and through language and statutes we don't want to ren again you're not going to find none of the smart people in the room are going to help the court find any and he's referencing by congress in the legislative history i spend an inordinate amount of time looking for references and legislative history and my friends on the other side of the table i'm sure if they would have found something it would be in here you know the murderous in that vein kicking to explain why congress would place a greater burden on the government when it's trying to prove assault with a dangerous weapon then when it's trying to prove under section one assault with intent to commit murder i'm going to place a greater burden on on the assault with a dangerous weapon i can't answer that question or i mean i could sit in speculate i could sit and say that that for whatever reason congress decided that because the crime here is really court causing bodily harm with a danger it well merely as an affirmative defenses and i'm sorry for ordinarily this is an affirmative defense and isn't it a justification ordinary in case in situations where the statute does not address the this concept of just cause or excuse it is an affirmative defense and that is the dixon also the mcilvanney you lose all the way back to the twenty's on that oh yeah right absolutely but so your brief though i think points out we've got a different scenario here and the rule against sir perfumery means that we have to give some it has to do some work this clause without just cause or excuse has to do some work otherwise that's where rendering it's so that's our arguments are yet all the all the circuits that have looked i don't have to mention a mention the second the third the night in the eleventh all of them have suggested that this is a burden that is more appropriate placed on the defendant because after all it's the defendant that has the information that would allow a court or a jury to assess the difference i could the government for example have to be self defense in the context of an assault statute like i i guess i could i could sit and conjure up a fury under which it would be you know maybe arrest would be just cause i think use or excuse the the court in passing makes reference to the fact that it's i think it's an eleventh circuit case i'm sorry make reference of the fact that it's and it's not an element of the offense the issue in gilbert was whether there were two issues in your part that the court decided whether the element or could have been something that should have been addressed by you know by the court i mean it seems to me that if the government and idea of the just cause or excuse really comes from the the mouth of the defendant as to what was going on what had been experienced and what the situation was and in all of this all the drama that we know the defendant talked about now so how do you how do you get that as the question is in this case is it a defense theory to that that that the government hasn't proven an element of the if i mean the government well that's really all the government should have to do is is anticipated defense area as compared to prove the lack of a justification defense just as a as a practical matter what and are we talking about the difference here with congress had said provided that as compared to without just cause i mean you are talking about language but isn't it really you know we're talking about an exception to the crime is the crime and then without just cause or excuse it's not really part of the actus reus it's it's a you know an after however if the defendant doesn't have had just use then he's not going to be found guilty of this i beg to differ with the court's interpretation first of all to the extent the court accepts the government's in the  consider this a proviso by exception one that has to look at the cases that establish proviso by exceptions and improvisers by exception are generally for example in which case talk about provided that this doesn't apply if the person acted in good faith look at this this this is basically the same thing i've in terms of you know without just cause or excuse is not part of the act to sort of what the defendant had to have done to committed the crime it's  in mind when it's through that language in there we don't know exactly what it was because nothing in the legislative history or i want to through that language in there and especially and it's at and if would if for example if they would have put it in the beginning of the statute or at the end or in a separate supper in a separate sub section as if tends to do with affirmative defenses for example if you look at eighteen u s c section six six six see that is an affirmative defense to the effect the government funds case if you look at  there's an affirmative defense and in eighteen u s c section fifteen twelve when congress thinks of something as an affirmative defense it clearly structures the statute as a sock if the government doesn't have the information necessary for example to certain defenses where rules provide for disclosure up of you know insanity defenses public authority defenses i mean those are situations where it where if if and hypothetically a defendant raises a public authority defense he's required to give a notice  government and it's you know has and then gets the opportunity to address whether there is public authority so so i don't think it's impossible for the government to to have addressed these matters you know may be difficult but but again we're here because but then we have to address that with congress right i mean but that's what congress seems to have intended through the language of the senate doesn't dixon hurt you yes dixon hurts i  one thirteen a which lays out those three elements and as the court correctly pointed out that first of all in cook for example it doesn't matter where the language is where statute as a description of the crime so the crime as to be proven by the government includes the without just cause or excuse part and it's very tough to figure out whether it's an element or not it appears to be congress appeared to say or they have this crime you've got to show blah blah blah and without just cause you choose how do we get around  common law really controls here and that congress has given us just cause it or excuse is not is not an element is a justification if it's been around for centuries and i think it is on a practical aspect if you look at it if the government had to prove just cause or excuse or the lack of a lack of how on earth could that do you have you meet that burden because you have other examples of statutes by congress where they include the defense inside in the description of the offense where they included offense like justification in the description of  o'connor has said so on multiple occasions but how do we get around the fact that the language is in the statute because you are congress has made it easy force they have placed it here they have a funny way of making mentioned so the justification defense is an affirmative defense it's a no brainer but the court had to go through this long analysis through reached the point to to to come to the point that because duress in that case then that negate an element that  that they put it in the description of the crime itself where they were that surely they had to be saying that it's not just common law from an offense when was this statute and acted rest those defenses it's just another affirmative defense and therefore they tried it so because it would have to go through this this hurdle they put it out for you that just week that here legislative history to tell us that that's why they put it in and we can expect a new trend of criminal statutes from congress where they're going to put it in so we don't have to resort to the common law well what put the supreme court has said that in all circumstances of justification i mean the supreme court assumes that the district court knows that far as justification that it's burden on a definit to prove it so and so if you look at the language they say that in all of in future i get statu what they did they just put it as you know i guess if the defendant is able to prove just cause a defense then is the defense to the underlying charge of in this case is a sop with a dangerous weapon they put it there so for example definit use the bordal case as an example in his brief and he argued today that it was missing as an element i said it was not listen and the fact that case had nothing to do with this fourth element he claims it without just cause and its use had nothing to do with it at all if that case focused on whether or not the defendant intended to commit bonny harm and what i believe is that the court in just reading the statute included that as an element but if you notice that that case it is a circuit case they never said a government had a burden of proving that element in fact another case in the district herron did not mention is a circuit case herron do not when they outlined the elements congress wasn't quite as specific then they say as they are now my god how do you how do you proceed with this then i mean it and you suggesting that the defendant go forward and go ahead and prove as in this guy with a razor required only fifty two stitches with a guy handcuffed behind his back but at the prospect of having the defendant establish some sort of threshold a prima fascia case of self defense and then the government having to disprove it as the idea the right to remain silent absolutely you can remain silent if it is a burden is not ours we've carried hours once we've proven our elements and it's i mean it's just insurmountable mountain of i mean we just don't have the facts to be able to support to be able to prove just cause an offense i suppose we go to three hundred reasons why we think he would use as a just cause excuse because there's no way you could meet the burden of showing what was in his head at the time because you can't you can't put him on the stand so it creates a a legal impracticality are in possibility be tying your hands i mean there would be other things you could show such as the guard could remove him and set it but you wouldn't have the ability to really prove that  in this case and witness well interesting service fac witnesses you are what he attempted to do were tried to call witnesses who were not present at all before the attack is interesting they did not call anyone who was present inside the cell with him during the attack as witnesses they were all individuals who may have heard comments therefore but none of their witnesses that he listed to call were in the cell where  briefly how about his right to remain silent and the government couldn't call him to find out what just cause or excuse he felt he had well your honor just me in the defense i mean let me let me play this out in the context of a trial government puts  of all getting back to that point i was sitting here and and just if the government is aware i was giving the government some credit here of was going to even make them aware of the fence at first but if the government if just cause or excuse is an element  in the language and then you can simply put the government would simply have the burden of proving the or the very same elements that the defendant has to prove in the instance when it an affirmative defense so the government would have to look at that let's say in the yard he when they when he starts attacking him you know taylor starts yelling you know you threaten me threaten me and then the government in order to figure out whether that's going to be a justification as to find out about what or what that entailed so it was a take the defense deposition no you can't do that all the defendant can't you you can you simply call the victim in this case mr to stream oh yeah he's going to have one side of the story isn't he right but the government always has one side of this i mean the government's prove always has one side of the story and the defense has the other it's one hand tied behind its back terms of proving element it literally and for you actually this case had the opportunity and in fact charged assault to commit serious bodily injury under a six which would not have required would not have required them to disprove just cause and excuse they chose not to proceed on that case charging options in this case actually helen obviously it it pled it but it didn't believe it had the virtue no my point it has others are other sections of the statute under which you could have charge like a six which you didn't this case right evidence in the case and in that case it clearly treated the element just cause without excuse as an element to be proven by the government because part of its holding was that the evidence was sufficient to show the absence of just cause an excuse so clearly at least in that case the court interpreted the statute as requiring some burden on the government if it in gauged in a sufficiency of our of evidence argument and unless the court has any further questions well here's in one circuit case very second it says it is incumbent on one side it was not necessary to recite your so it was without just cause or excuse if there was such was or excuse t