both federal and state law that not all not all murders are the same that simply the state of mind of the defendant is always an issue in determining whether murder was st degree  nd degree or voluntary manslaughter the only issue in this case the parties were pretty much in agreement about everything in this case that there was a murder the only issue was whether there was malice whether not satisfied simply by killing with an intentional reckless mental state it is it is specifically requires committing the wrongful act without justification excuse or mitigation and in this case the defense there were there were two theories to two things going on two defense theories that that the government failed to prove malice beyond a reasonable doubt the st was that that clearly mr walters was in the heat of passion and else but i'll speak briefly about that the nd was the notion that there is a well recognized imperfect self defense which is has been recognized and other circuits which we do believe is important for the court to consider here because when when there is not a lot of direction in the law there's a lot of going back it was very difficult in this case in terms of the different standards but what's most important is when your honour's  or that that the defining characteristic of voluntary manslaughter is intent without malice not the heat of passion and why that is important is because heat of passion encompasses  and then he shoots the other guy six times including when the other guy's lying on the ground so was it clearly erroneous for the trial court to find us a factual matter that there was how he was referenced bully not only was the st aggressor he rob my client mr walters he beat him and then he proceeded to threaten his life fully was the evidence was undisputed that bully was a a member of the bloods gang and during the alter cation there came a time when he when he things changed any point and he made the motion of a gun he pointed out my client and he said you're basically dead at that and he got on his phone and he continued to be on his phone and there was the evidence was was was clear from my client's point of view and there were other standards by that he got on his phone and he called others and this was an ongoing death threat  during the video my client would have been a heat of passion if your client had come back an hour later or a day later and shot him because he was under this threat i think that would have been very different i think the fact that this was i mean does he still have to go away find his gun and come back and you know he did passions seems to me to be dissipated by the deliberation that is required to undertake those acts and that's why i'm pressing you you know it wasn't all one gesture there were intervening actions that he undertook and your honor there was a there is my client's credibility in believe that an hour later or a day later as well i mean if a threat like that had been made and gangs were involved and so on why wouldn't your argument be equally as valid for someone who came back a day later and or stand the court and  the truth that imperfect self defense basically says that if a defendant says his belief a sincere even though it's unreasonable that still negates sincerely say it's not maybe heat of passion then well then i think it might but then i think that i would have i think i would it would fall into a different category and perhaps you know there there would be perhaps an insanity defense but this was never about insanity i think that part of the confusion and the court's decision is and is the focus on the fact that that mr walters was aware of his actions no one ever disputed the fact that he was aware of his actions and that he was conclude that a defendant's actions are malicious one shots are fired because certainly that's the case in every murder in every and every murder where someone is always this record found that of the defendant was did not believe there was reasonable or unreasonable doesn't matter he did not believe that he was in danger of great bodily harm and what is troubling about that finding your honor is that it's completely contradicted by the two expert who's calm cool collected he will look someone you know in a rage of passion and i think that that's why it's important for the consideration of the expert testimony in terms of what his state of mind w i'm troubled by is that the district court did not did not accurately consider the the testimony of the experts and did not one the government's own expert testified in her concluding report and that's government six o two that she she could not be certain that that the defendant was was a free and that his belief was insincere that it could have been possible that he was that he did fear for his life and that the only thing the court relied upon was her interpretation your honour's judge nathan respectfully her interpretation of the video and much like counsel who just appeared before me the standard is that if evidence can be interpreted with within a sense just as much as it can be interpreted with guilt then that's a reasonable doubt and the fact remains that that credit the credibility of  a bully that bully was was and the gang that bully was in and out of prison and these are all things that mr walters knew and that there was an ongoing death threat and and in these gang cases i mean more and more more were getting these gang cases and the reality of life on the streets this was a street where mr walters had been shot twice before he was victimized that was not disputed he had witnessed his own friends but there were at least five instances where friends of his had been shot on this very street bully was a gang member he calls i mean this is if you can think of analogy if you're threatened on the street by the head of the colombo crime family certainly the th may please the court my name is matthew laroche to represent the government as a people and i represented the government at trial below i'd like to start where mr sorry left off a nd ago and that's on the standard on appeal we disagree with her characterization of the standard it's not whether someone could potentially find that this person was not guilty the standard is whether any rational trier of fact could have determined based on the evidence that this person was guilty beyond a reasonable doubt this court will should only overturn that  determination if the evidence is so meager or non existent that no rational trier of fact could to determine that this person was guilty and here as judge nathan found in her very thorough opinion after she found him guilty the facts firmly established that mr walters acted with malice those facts were largely understand disputed bank looted very clear video evidence which captured virtually all of the relevant facts in this case which included the fistfight between the two individuals  included mr walters leaving for approximately six minutes going to get a firearm in a building where the store to come in coming a mediately back to the scene of the crime and essentially sneaking up on mr moore sneaking between two cars approaching  moore had a cell phone in his hand and without any provocation whatsoever as judge nathan said execution style shot him numerous times until he fell to the ground continued to shoot him while he was on the ground those facts are entirely consistent with a finding of malice there is nothing else in the record the defense counsel pointed to that would support an alternate determination in this case the defense counsel's race to arguments one relating to heat of passion one relating to imperfect self defense i submit that judge nathan thoroughly considered both of those arguments and rejected that and she did so by considering all the evidence drawing inferences in the government's favor as the court must on appeal  you mister his his argument just ignores the reality of milton mr walters and certainly the life of a defense and what happened in this particular case matters mr walters was these were not to equals mr walters had no prior record mr walters and all of the witnesses said that this was out of character that he was a peaceful person and that he was self  medicating using marijuana because he had post traumatic stress disorder there was a little bit of a dispute this was not a battle of the experts both experts agreed that that that he had a fear trauma based condition based on the fact that he had been a shop before and that he was using alcohol and self medicating and selling marijuana at ten dollars back of marijuana there was no premeditation this this this all happened because  literally started the fight and punched mr walters and because and robbed him and refused to make payments on the ten dollars that that that mr walters was owed and the fight ensued and it was it was the fight in total was eleven minutes that includes the six minutes and and during that alter cation mr walters explained that based on his living on the streets that he had to that he had to stand up for himself so he initially stood up for himself but it became apparent during the fight that things changed and that and that bully held out his gun and threatened his life and mr walters and all of the people in the vicinity believe that this was a threat but of death that this bully was was the cotton george moore testified he was the government's witness the only eyewitness and he corroborated the fact that these these two men were not the same that billy was a violent person he stayed away from him because he was a troublemaker and he never wanted problems and that mr walters was a different kind of person and when bully threatened mr walters life mr walton's believed that that he this was an imminent threat of death and when he went and got his gun it was simply to protect himself not only from bully but he was a gang member he called on his phone that was in the video and it was undisputed that he was calling you know someone on the phone and mr walters believes that he because he heard him say you know bring me a gun and i'm going to spray everyone up on the street and mr walters video statement to the police he said at the time when he had did not have the opportunity to meet with counsel he self surrender he turned himself in to the police literally walked into a police station and he his his statement to the prosecutors and to law enforcement was exactly corroborated by the video despite the fact that he had never even seen the video or consulted with his lawyers it is a tragedy a tragedy that this man has led a difficult life of hardship and that he was brutalized that he was brutalized by poli who is in and out of prison and none of that seems to matter to anybody the fact that he went and got a gun you know that that's an appropriate i'm sorry i'm sorry i