have tested it without this microphone before and it's worse without the microphone so please forgive my having a headset on and i'll try to talk loudly your honour's i'm going to try to say three minutes for rebuttal and i'll try to keep track of my time i'd like to start with the premeditation issue to avoid using up all my time on the re which i could envision happening ideally i'm going to try to slip my time between those two issues there are two questions to consider  premeditation issue st was the evidence sufficient to be clear and convincing evidence of premeditation even if the court applied the correct legal standard seconds is there some indication that the court did not apply compare the facts there is no case that is calm even close to saying that this sort of tension that then erupts into a spontaneous struggle over a gun with an attempted shooting in the space of a minute is premeditation well so let me let me pose pose a different scenario for you see if you can respond to it i understand when two people are struggling over a gun and it goes off there might not be premeditation well excuse but here here here's your peers that the evidence is that your client got so possession of the gun pointed at the officer and pull the trigger maybe there's not extended premeditation under those facts why is near enough for a reasonable finder  attempted murder it also got going to get lee we're not even there so there isn't is where you draw the line between intent premeditation i have not tried to argue that there wasn't an attempted murder here we have conceded there's sufficient that is your honor is intent to kill there is no planning activity which is one of the factors the courts look at there's no carrying a weapon to the scene there's no other calculated behavior there's an agitated defendant as opposed to an agitated defendant no prior relationship with the victim suggesting a motive those are all factors this court has emphasized in rejecting other situations he challenges compare the facts in the four th circuit cases that are out there they don't even facts and find either five be meditation or don't so i'm still stuck with the question if somebody takes a gun from somebody else in a struggle has enough time to take it away pointed at someone and then pull the trigger and you say he's within a minute but we don't really know how many seconds i can tell from this even after having taken it away is that you saying as a matter of law one can find premeditation or yes what we can tell in this case is basically one continuous action and i think one is one continuous action that's not enough and i think the this really is intent rather premeditation of the district court possibly applying any correct legal standard if you look at the takes the district court pointed to and it's reasoning and the prosecutor in making her argument they're all things that show intent the court says the defendant took the gun out of the holster and then started to fire it at the agent that's premeditation that's intentional conduct no explanation of why it's premeditation instead of just intent to stand it was attempt just incapacitate yasser he didn't just want to get his gun away from him these are i'm actually actions of a man who is trying to kill someone again the prosecutor's reasons all focus on intent as opposed to premeditation was if we were dealing with the st sentencing i think i tend to agree with you about the wrong way go standard but judge you're going to seems to have gotten the legal standard right the nd time she stated what it was so  facts are insufficient under that standard to constitute premeditation but i'm also seeing saying your honor that the way she applied it is in the words of ruiz some indication that she applied it to the wrong legal standard about felony i would concede that if the cell any was murder and that was in the record i think any distant inner is certainly the average this and it would know that murder is unusual by more than a year is a felony was possession of a cultural substance then it might not know that you might you know maybe that's a spell any maybe it's not and this stipulation of course says nothing about what type of felony it was and i think without something more than just felony or crime that he'd been convicted of a felony for which the penalty was more than one year why wasn't he couldn't one infer from that stipulation that he knew that because the stipulation is just something  deemed to have knowledge of the facts that reciprocated if they if they've been proved at trial if somebody if the government had put on evidence that he was convicted of a felony and for which the penalty was more than a  places and there was no evidence of this he served as opposed to i think not your honor you just yass at the beginning of that question about whether his willingness to late shows knowledge at most premeditation issue as well and i will try to take some time to discuss any concerns that the court may have about the right height and knowledge issue and my argument as well your that there certainly was clear and convincing evidence that the district court relied upon it to find that the defendant did have sufficient time to form the the intent to kill the officer that this court has told us that we are to look at these particular facts circumstances of that case as well as the person themselves the defendant themselves which is why defendant reliance on other cases   information that suggests that this is someone that is perfectly capable of forming the intent to kill reflecting upon that intent to kill an acting upon that intent to kill we have the defendant making statement that he had served ten years in these are these are fact that were before understandably before the jury at trial but were before the district court at the same thing so this court also has this ability to look at the defendant as a person to decide is this someone that is capable of forming the intent to kill and reflecting upon it and then i don't have any doubt that this defendant is capable of forming intent to kill and maybe a bad guy my question is in this case how long does a struggle for the gun and then there's a period after the struggle when mr adams has the gun by him self before he fires could i tell him this record how long that was i don't believe we can tell for the record how enough time for the material witness to get off the ground with a blank flat on the ground for the st shot it off the ground run and at with that point running force them out and are in the mountains running for the top of the mountain or the nd or  rd shot and i believe i made it out a few minutes had gone by there we don't have any shots or none of the shots are fatal in this case so i guess one of them could have attempted murder with a final shot that do we have any we have the material witness saying he's running and gets some distance away before he hears the search shot he also hears the victim's yell something in the meantime you protection service vehicle that says that he was calling his his supervisor to help the defendant in a material witness the defendant that expresses concern that border patrol is coming for them and he said at that time you decide i am not going into custody i'm not going to go to prison i'm not going to get caught he starts forming the intent right then and there to do whatever it takes to avoid being apprehended then we have the response of the victim officer lynndie from the very very beginning officer that he described aggressive behavior by the defendant the material witness is compliant with the defendant is wearing up he's showing aggression then the defendant fails to comply with man officer linda gives them several more command defendant fails the defendant deliberately pretend not to be able to understand english even though he admits he fully understands english but he did that purposely in order to distract the officer then while the officers he reaches for the officer's gun any doesn't get it right away the officer puts his hand on the holder and blocks the defendant from getting that again these are all maybe a maybe a quick but d interaction but these are all all of these things are taking officer not giving up his gun so he chooses to put the officer in a headlock to try to get him to lose consciousness this again takes some time and it takes some deliberation and planning for a specific purpose he puts the officer in a headlo consciousness is not able to successfully regina so that if it does get the gun away from the officer these are all the things that happen before even the st shot the gun get the defendant get the gun away from the officer fires the st shot and i would submit right there we have attempted murder premeditation is in a sense of st degree murder then we have a continued struggle well the officer is on the ground and i fail to mention before that the defendant  fighting for the defendant then again the struggle continues and the defendant is pushing that gun into the officers he deliberately takes the gun puts the barrel right into the officers seven shots total and these are by his own admissions these are this is rob rated by the number of things a bullet found at the scene this is the defendant is struggling so much that the fire they are still on the trigger at the time so this is not a just a moment without reflection this is deliberate calculated actions all this all decided to see one and the district court even stated that it was interpreting the rules twenty nine motion as to the count argued not as for the other counts but in any event there was no argument made it far as the requisite knowledge that not required reading a understandably because it wasn't clearly have that evidence that shows the amount the plan the senate was in custody showing that he knew his conviction with punishable by more than one year because if so even just the pre sentence report alone those back with the court can rely upon of justice because here the defendant if the late so the fact of the prior conviction at the time all of the elements that were required at that time predate cue for his benefit so that the jury doesn't hear more details about the fact that it was honor two quick points on the premeditation issued an alternative the re hafe issue the question here is not whether there was attempted murder it's a question of attempted st degree murder it's a question of whether mr moreno will serve thirty plus years of forty plus years the government has pointed you to no case suggesting that a continuous struggle like this over a span of perhaps a minute leads to shooting is premeditated attempted st degree murder i really hate i want to address a couple route twenty nine motion addressed towards the felon position don't know but it doesn't have to be it was a general rule twenty nine motion and the defense attorney specifically said and i quote this in my brief that he was raising it as to all issues and all  elements that is sufficient under the case law on motions for judgment of acquittal to preserve rule twenty nine motion you do not need to make specific arguments i think your honor hit it on the head and the prosecutor pointed out the way you prove this would be very easy prove it by quoting and records of how long the time served and served in prison maybe records about showing what was said in court about the sentence that evidence of course is not in this record defendants cases like meter from the supreme court where they said well you didn't prove up one of the essential elements of the crime but on this record it's so clear that you could have we're still that we're going to fight here to be harmless why isn't the error harmless here well i the all we know is he got two and a half years in arizona we know he was released early because he's arrested for being in the country illegally after less than two and a half years