our next case of this morning is united states versus convention number fifteen dash two four five zero you may e sort of his innocence and demanded a trial by jury he was afforded a trial by jury through which he also had occasion to take the stand to explain the circumstances of how he came to be in possession of this particular firearm it was a factual issue that we did not result appeal the jury did not believe apparently that he was unaware that the firearm had the obliterated serial number but there were some procedural issues that really we feel tested different than any other case you know if i have done a brandeis brief you would see that in the virgin islands there's approximately one hundred eighty thousand people that would fit into three football stadiums in the big ten you would also see that we average well over priced me thirty thousand ease of homicides a year that's thirty homicides per one hundred thousand is a particularly significant number and as you will see from one perspective jurors sixty tuesday civically said she found a way to somehow address this particular problem in her mind to let it know let the court know that she would have some difficulty with the gate of the case then and read all course the flipside of that is made what ever was asked was effective because this juror got rooted out where i'd take issue with that position it what was said was do you any of you have any information about this case well more than that one of the questions asked was do you know anybody that's been a victim of crime and she didn't respond to that so when later she comes up and says i know six people who were killed don't you think the district court judge might have thought well holy smokes i asked if anybody been you know knew of somebody who was a victim of crime you knew six people that were shot that sort of counts as a victim of crime what it why isn't that enough that the judge had asked the question that should have surfaced juror number sixty three whose problems before but she just didn't respond there is sort of technical edges on these these questions for instance that particular question is how are have any of you been charged with witness to or the victim of a crime it's conceivable she was not tried with or didn't witness and wasn't a victim of the crime and if she's taken an oath to try to answer these questions truthfully perhaps she anticipated a more specific question and when all the questions were asked and we went back to side bar and the judge somewhat begrudgingly agreed das do any of you have any information about this offense and she raised her hand and came to sidebar and that's when she expressed the fact that i don't believe that i could be fair and impartial with the fact that six of my friends five or six of my friends have been murdered and that's why we needed which she came to sidebar to volunteer the information that she had a problem being a juror on a particular case involving firearms that was like the the  clarion call that in this particular case not every felony gun case in this particular case this jury panel may need to be asked that specific question to better guarantee that my client was going to have and impartial jury it's a it was a it was a circumstance when you're balancing the constitutional right to the fair impartial jury against i submit convenience it was just going to take on your ability to be impartial it was it catch on question of do any of you know anything about this case and then she put up her her comment wasn't even responsive to that question she was looking for the opportunity to express some heartfelt belief that at least she had on that panel that she was not going to be able to be a fair and impartial jury and i'm glad because it appears that she was not going to be fair and impartial as to my client and that's the other law that any jury in the virgin islands that's looking at a firearms offense and needs to be asked this question because firearms problems in this and then i'll answer just so severe that the fail to do that is a is a violation of due process not of might my case wouldn't be one for the black letter law in other words the fact that the judge didn't ask the question the first time that's that might go to what you're saying but after the jury came up to say i got a problem with anybody who's got an underaged firearm i can't do it because of all the homicide all the murders so your assertion is because one juror said it then that means you've got to presume that there are other people on the jury who have a problem and who won't answer the general question about bias that's the black letter law you're looking for i'm trying to think if we were to write this case and rule for you what would the rule book like would  well you may not have tests in every case but if one person raises it then you have to raise it then you've got to ask is that the rule you're looking for your honor the idea is is not exactly what you're asking i think that the judge has some discretion except i asked that question i asked the judge asked that question because it was very specific to our theory of defense my client was not to deny having the gun he was going to have the gun under circumstances that would go to the second part of the problem which would be the jury instruction in which the jury could be instructed by the judge that if you find justification if you find good faith then you meet you may find the defendant not guilty to pay just for those reasons so it was your significant to my case and it was out of the idea would be i would like a black letter ruling specific to my case but i don't believe it would be wrong for any case involving a gun for that particular question to be asked because it would assist the  counsel and exercising peremptory challenges even if that particular potential juror said i could be fair and impartial but i have a problem with handguns and the only justification your honor for not giving it is maybe in the interest of judicial economy or because we don't want to spend too much time on why dear and would say it's not perhaps if we ask this question this time we might have to ask it all the time and it's just going to slow up the wheels of justice where the wheels of justice are supposed to take you unfortunate problem with gun violence and it's a right but it takes additional notice of it but if this is typical then you have a problem because you run into our precedent in butler where we said it is the rare case that the failure to ask a particular question has resulted in reverse are you asking us to take this case and back in and overturn butler the rare case and submitted to your honor it is no it's typical and rare that's unusual she mutters i mean you know it's rarely typical or typically rare first in others on a gradual basis i think that my client situation is sufficiently unique as to require that right then let's let's parse that a little bit what what is it about this case that makes it unique rather than just the sort of run of the mill war of the year where you know that some jurors are very forthcoming others are very taciturn most are somewhere in between you know what makes this case unique rather when we speak of parsing it out this is really a two part why their problem the first part he didn't ask my question all right so be it i preserve the objection maybe butler's going to catch me in the in the drawing on that one but the second part when a juror who has not been asked that question goes out of the way to come up raise your hand to come forward to respond not responsibly to explain that the guns cause her a significant problem that's when the judge should have been and i've he was asked to please give that particular instruction because now this shows that's that that's a question that needs to be asked for this particular panel and in this particular case my client has there's no defense he didn't have a gun there was no defense so if the diff a juror has some problem with guns right off the bat and can't be fair impartial i mean a many of them say we can be fair impartial i think go back and use peremptory challenges after that but that's a situation that i just wanted to the court that by the second part you don't have to make black letter if you don't wish you on the whole question but i do suggest respectfully that you have to make a reversal based upon the fact that after that lady germ sixty two came to the side bar then it called for it require that instruction not running and i ask you can i ask you about your religious have come in and a half hearing you've got a second argument which is that there has should have been a good faith instruction given that respond if you would to taste of our skull united states versus crow states from ip ninety two at nine sixty one second ten ninety seven we said a good faith defense instruction is merely surplus and then a little further down the good faith instruction is simply a reiteration that the government must carry its burden in demonstrating that the accused acted knowingly and willfully why isn't why are we just controlled by that language that big the court gave a knowingly and willfully instruction to instruct further about good faith would just be surplusage it doesn't add anything that's not already covered by knowingly and willfully and by getting the jury to understand they have to find the required state of mind but i did go through all of those and five those seven in the in the standard jury instructions for the third circuit and i many of those were non pres presidential and the situation of the state butler having it as surplusage surplusage when you just add a different reason as to why you would not find that my client did something knowingly when in reality the particular good faith instruction or the justification struction which has a lower standard of proof would be a total justification for the jury to be able to say i'm going to find that he was acting in good faith and they have the right in that instruction that says  n find the defendant not guilty if you believe they acted in good faith i also what what what what do we do with our own present this says properly given knowing that instruction about state of mind is to cover any arguments about good faith it if i may go on your honor it does not state that it doesn't draw the jury's attention to the fact that these instructions what authorized the jury in  that's true but can you address mr morse argument head on he says look even if i took him to be saying i'm not asking for a black letter law ruling that everything this is got to be asked in every case but we asked for it in this case because we were concerned and then somebody came up and really put the court on notice that this was a problem i mean yes as he put it she says sponte in response to a different question said i know people want people got shot i don't think i could be fair that should have prompted him to do something when the judge is prompted like that the law should require him to take the step and ask the question i think that could be the defense's argument and i'm wondering if you got a direct be fair and impartial well if if that if that's really it is because in the end that's what you're trying to do is to seek a fair and impartial jury is the government's position that all the judge that really you'd only have to ask wanted him to ask can you be fair and impartial in a gun case now but slightly different spin and says that he has strong feelings would prevent you from being fair impartial in that case but that's a question he wanted asked that specifically can you be fair and impartial in a gun mentions that it is a gun case that's what prompted i think you are sixty two to approach and say well i have issues with guns it is because of this impartial only approached when the judge indicated in void here that this is a gun case then he opposed right which is i i think exactly defense counsel's point i think the fence counts would say yeah that's what i'm sayin if the judge had said first this is a gun case can you be fair and impartial we might have surface more people who had an issue with this but that isn't how the judge asked it the judge can you be fair impartial people thought that i could be fair impartial only then does the jury get that with what we're in a gun case here and it takes will you know one particularly assertive juror to get up and say well you didn't ask me this but i'm telling you now and that shouldn't be the way it works that's kind of the tenor of the argument we're getting what should we be telling the district court judge and this records generally hey tell people the nature of the crime of the case that they're know this is a gun case no way in this and it's a gun case i think i need to come forward and explain why i cannot be why me not be able to feed an impartial knowing no it is a gun case so in the end i think  and again the this is not a very difficult case for a jury to understand you know this defendant had to face i didn't you know he was going to turn a justification and instructions are very detailed knowing instructions are good faith instruction so again the trial judge i think got it right by giving a partial good faith he says that instructions are early and you don't you don't get an instruction not because you request it you have to earn it and you earn it based on the evidence that has been presented at trial and in this case he did not court excused her for cause i wonder how many other people in that jury panel a panel of the near persons was going to are would have raised their hand to say they would have a problem being a fair and impartial is not speculation great question and will never know the answer and you could say the same about every jury that we ever picked as lawyers and judges couldn't you know your honor i don't it's a great the great unknown that the folks that come up and as i said before some are very forthcoming others are reluctant you know you know that it's a hard thing picking a jury whether you're the the advocate or the or the judge and you just want to make sure you get a fair and impartial jury in the box and and we don't have a way to force people to tell us everything they know about everything right the judge when it comes to is not merely speculation because there's no way a defense attorney can protect against the circumstance that can't happen here if you don't get the judge to ask that question of the rest of them then it's not going to happen we're back to read it out and i can exercise my rights or we're back to to it being a necessary question in every gun case really well your honor then again i did want to go have to go that far just in this particular case when you have to salute situation we have when someone comes forward to sort of highlight the issue yes your honor that that is the second secondary weed out for four prejudiced on the good faith instruction it's in the court solution was it just sort of hide it in with the definition of of knowingly that only goes to the mental the mens rea a part of it but the good faith defense and the justification defense go to not just the mens rea but also to the actus reus in other words it would tell the jury that it was ok for my client to pick up that gun for these reasons and if they believed it then they could use than alone to find my client not guilty your honor the only if i may just take one more step when the when the government says that i was allowed to argue it that's that's the the court takes pains to tell the jury that the arguments of counsel is not evidence and you just can listen to him and so me telling the jury something about my good faith defense wouldn't be the same thing as the judge instructing the jury on the