prove that answering the question as to whether he was subject to a court restraining order that the answer was false while it's true that it was for him ok great which michael bremer was given actual notice and in which he had an opportunity to participate to contest that's what's contested you're right that's the only thing contested in this case is whether the evidence met that requirement and that that's an issue of st impression in this court what was the problem with the hearing that he had before the ten justice ok so i think whether you read this whether you read those terms given the full scop due process requirements or just the minimal due process requirements inherent in the plain language what's what's wrong with the order is that the hearing wasn't a hearing the defendant didn't consent to the  order he didn't wave a hearing there and there's no evidence that the court was ready to hear from either side to make a prayer and no evidence that had michael bremer said anything that the strongest heavy present of the strongest evidence that it would have affected he was told to to come right and to to meet with the with the judge right that yes and he understood what the nature of the issue was and that this was a criminal arraignment is not correct that's correct what more did he need to know he knew that the judge would be doing something i think what is probably fair to assume is that he knew that he would be told what the charges were against him that he would be appointed counsel at that hearing that proceeding the arraignment and that of a future court date would be set there's no evidence that he was informed or a protection might issue against him and certainly there's no evidence that he had counsel assigned to him in advance so that he could discuss with counsel how best to approach this arraignment but that all goes i suppose to to the notice requirement and i think this court can actually decide this on the hearing after hearing language and the opportunity to participate requirement although i still contest the evidence is insufficient as to the notice and the reason is as i just mention order or the court has made a finding that the order is necessary and this is best described in the fizzer gets decision in sproule from two thousand and three which talks about why it's necessary and it's and it's necessary because otherwise you would be infringing on china's due process rights and also nd minute rights and could you explain more to me about the new york law i understand that in new provides in that the order can issue because the judge flips a coin or feels like entering it or must enter it in any case in which somebody is being released on bail in this kind of case the statute five  if you don't make a determination the order is still valid so effectively but isn't the water still valid and you're not contending that if exactly the same procedure that is shown here and taking it in the light most favorable to you seems a rather extraordinary thing for us to presume as you argue that the judge would have been a blank wall that if your client or a lawyer on his behalf if you had won had made an argument that the judge would have said i'm not interested in arguments i don't have to hear arguments i don't care i think it's automatic and i'm not going to make any determinations or any fact findings for all i know you're going to really write about the facts and legal things i don't care i'm going to do it anyway why would we imagine that that's what that's what new york law allows and they and they set a future date and future date was set for november th which was thirty days later at which a hearing would be conducted as to and therefore contest them before a judge was prepared to hear arguments about why whether this order should continue i would like your strongest argument is the opportunity to participate on the theory that the fact that the man is standing there but he's a lay person who doesn't know anything about what his ability to speak of this proceeding is that without at a minimum the judge saying ok the next thing on the agenda is the order of protection of the government wants or that is frequently issued in this case you mean to say about that in the absence of that some difficulty in saying that he had an opportunity to participate just because he was there quaking in his boots presumably about being charged with a crime that is starting or else in it and i think the flipside of that is whether the court there's any evidence the court was prepared to hear anything from the senate so th both sides i mean the debate is the defendant being at invited courts have said there's no reason require an invitation but then again the court has made in those cases and making a determination on the record that it finds probably cause to believe that this is necessary so at that point at least there isn't there's a trigger like that there is some standard being met here and that the defendant is on notice that he can at least even process a make an objection and i can i ask you after you please on the  the absence of a lawyer i understand of course that is concerning that there was no lawyer there but is it is it required in this kind of proceeding u  be permitted to make arguments about this order and anything else about the case you want to your position is that in a circumstance involving a criminal arraignment where there is no lawyer there is no meaningful opportunity that's certainly part of the argument yes and that and that's i think that's not specific in the language of the g eight but if opportunity to but one of the things you're arguing is that this language in the federal statute somehow incorporates or is in its meaning is informed by the due process clause and i suppose that  of these the that sort of scotches that doesn't because it you know you're not taking on the burden nor do you need to of saying that new york's ex parte proceedings  are unconstitutional you know maybe in a case of an emergency there doesn't need to be a prior opportunity to be heard so long as there is an opportunity after the fact so i mean maybe taking on a little more than you need to talk about due process requirements and complicating the argument when the sort of ordinary language on the facts of this case where the there's not a transcript and i feel rather differently i think you get much harder road oh anyway if you had a transcript where the judge addresses the defendant even without an attorney and says do you have anything to say about this and he says no that would be a rather different matter but in a in a situation where for all we know right and it isn't that you are in for all we know there met that's basically you know like it's down to and as to the expert take issue in the due process but obviously that's part take orders are valid but they don't they don't to probably don't qualify under this statute but that's not because this statute somehow incorporates the requirements of the due process clause because the requirements of the due process clause would not require necessarily an opportunity to be heard in that circumstance i think that you know going back to least the sixt temporary and they're in emergency circumstances right and in this case the temporary order didn't deprive bremer directly of tennis in a firearm by a biased term that didn't make it would have to actually have a hearing on the statute before court in new york and deprive somebody of their of their rights as a firearm or to purchase one because this was not a hearing in your act since well you making any argument with respect to how the defendant or all firearms purchasers  advised with respect to this requirement on the federal firearms form four thousand four hundred and seventy three which i know you know part includes says that the hearing includes a finding that such person represents a credible threat to the physical safety of such intimate partner right that's the or the so g eight has a b and c and c has one and two and you're talking about one there's also two which is essentially a th clause if by its terms it always there any jurisprudence that explains that if all these other boxes are checked then jury finding must have been made no no no not that these were just checked and no findings were made in the record something i don't know but anyway just curious aside thank you nothing to do with this case until now no i did review the brief but i was brought in to do the oral argument and in preparing for like when i struggled a bit to figure out how to frame the central question here because we are in a sense a couple steps removed from the new york state procedures we he was prosecuted here for making a false statement and on the form that he filled out it then refers to the federal  definition which derives from a federal statute and so i think when you when you think about how to approach this case i think that it's very important to say that the defendant here is not contesting his knowledge or intent  the only issue on appeal is whether a rational trier of fact could have found that mr bremer was subject to a qualifying court order yes if there was an attempt statute that applied to this this would be we call it conceivably an impossible attempt that he in he thought he was making a false statement or at least the jury could so find because he had been clearly informed that not subject to this order and he checked off on the form that he was not subject to any such order and he also agreed that he never read the fine print that provides the all the exception but but still whether he intended to make a false statement or not it's a required element of the offense that it actually be a false statement and that irrational whether the evidence was sufficient that a rational trier of fact could have found that it was a false statement and also important here is that in trial defense counsel expressly rejected any attempt to elaborate on the key terms yes but we judge the sufficiency of the evidence against whatever the elements are not necessarily the elements the judge charged in the case i think your honor here i think when you're thinking about it i think because of the way this this comes to i think because we're going to this rational trier of fact position i think it's a mixed question here and i think what that gives you is a little you come across united states against things called lost track or plays act that was decided on december the th i have not and it's a it's not a case about guns and lies and lies in a way it's a case about misappropriation of government confidential information and it seems to me that the there's a waiver argument made by the government there and our court is exactly the same structural situation the insufficiency argument hinges on an interpretation of the statute there had not been a request to instruct the jury and the court held both that the were given to the jury but it didn't but now i mean you weren't actually formulating this take it as a waiver argument now just as as how to approach this term the the what happened here in terms of the jury's assessment of these terms and i think what i was going to get to is that the terms hearing and actual notice an opportunity which has many courts it looked at those terms and said they have a fairly that's what the defendant and the government was saying below do we have to get into that and focusing on the opportunity to participate i don't know that i would it's not exactly a case where one blames the jury by saying oh my god how could they have been so irrational same time if of the meaning of opportunity to participate in fact is something more and then we're in law it is an actual law is something like some real understanding that you have a right to say something and there is no evidence that would support that and indeed there are aspects of new york law and  then doesn't seem to me anyway a fanciful notion that a judge might think well i've got this statute that says it encourages me to issue orders of protection here he's charged with this kind of offen e seems to me without elaborating there's a putting it on the record that looks like the kind of case where at least until hearing can be had we'll just make that one of the conditions of  dell and without ever asking the person just says to him ok so you know you come back with your lawyer and thirty days will proceed further with the case but in the meantime you're released on your o objected to the entry of the order otherwise engaged with the court as to the merits of the restraining order and that's and you know i will say in the th circuit opportunity implies a little more than a possibility or a chance of giving rise to some result and i think here is the evidence was that he was in court he had been brought there with the state trooper who advised him that it was going to be an arraignment taking the light evidence in li only put you know some reliance on the form and then the form sad is that the judge advised him of the order and the contents the form itself which he signed gives him a clear indication of the consequences under federal law for this  and there is there is no objection by the defendants i think here that means a minimum requirement of opportunity and i think stepping back from this and especially given the vehicle you have here i would think the court would hesitate to people who have these orders of protection against them and often time it takes things like a lot of things the congress has a general purpose of doing it's valid saying that against other consideration it did and here there is an explicit balance th has to be notice and an opportunity to participate right now an ex parte order that might be entirely valid as a matter of state law and as a matter of constitutional law and that   that interest to sacrificed to congress's desire that people have notice and an opportunity to be heard whatever that means to them in the before they lose the right to really wants is the defendant has to have ab advance notice well he says that and rightly so he's an advocate he wants to argue for the maximum possibilities but i'm focused on like the minimum here what are the minimum things that notice requires and it's one thing to argue notice doesn't have to be three days in advance notice can be well here you are and this is what we're going to consider and you're on notice that this is a possibility hearing and you learn of the and if you've arrived at the here you've been told of the date and time of the hearing you were there you had actual notice it's the courts have been clear that that is not that is distinct from have made an argument that this is not necessary in this case he was and he doesn't have it's one thing he doesn't have a notice even thirty seconds in advance as far as we know right i mean there's no statement by the judge now we're going to consider this right i'd be pretty happy i think to say that's actual notice and that maybe even if not coupled with do you want to say anything about that and it gives an opportunity to be heard but if one imagines a proceeding in which the judge believes as mr egan suggests the new york judge would be entitled to believe that he can impose this without making a finding without any particular discussion just as an automatic incident of the elephant in the judge's judgment that's a good idea  issued ex parte and congress are taking a significant step by requiring actual new yes and that requires the defendant be present and here he signed the form after being advised of the protection order  after being advised of its contents so we know that have well because if it boxes are checked and his signature is next to them so it's it's as i was you know that the court and  look at the we've all had clients i think if we hadn't practiced you know who signed a lot of things without reading them right i mean it's again here you go let me just part of part of my problem with all of this is the absence of a record from the mall to city corner mall to town court i mean and i don't have it on and all you got is the state trooper who says this is what happened right i mean if you had a transcript if you had the in village courts where these are issues that there's not going to be a very easily readable and accessible record and that memories will fade over time but i think that there's something in the record to the effect that we're narrowly these proceedings are recorded in malt yes in this one wasn't is that my understanding it's i don't believe it's in the records i should explain explain that it's my understanding there was just no record we couldn't get one or whatever reason there was no recordings i was not a case of any negligence on the part of the government or any choice to choose to prove its case with the trooper right there was no recording made but then when you go back to the fact that i mean there's an argument in the brief to the effect that oh this is going to make it virtually impossible ever to enforce this statute but i don't know if there's anything in the record or anything that we could take notice of to indicate in how many courts across the country is  our criminal arraignments and local courts not recorded in any way shape or form this could be just an isolated instance where somebody forgot to push the button and i think but i think the argument in the brief is also that you have these  the system of background checks and you know making sure that a person who has a temporary restraining order can't get a guy i'm and our argument is also that would make that that system much harder to work because a layperson looking at found out that there that he wasn't telling the truth or he was that he really did have this order right here i think there is nothing in the record about that but it did work in this case but i guess i would emphasize that adding additional steps i think congress is of sad and i think you know we did meet that minimum acquired i fully acknowledge the proof was not overwhelming here about what happened but i think when you look at the terms of the plain meaning of the terms without this extra due process gloss we met that standard and going back to squiggly to the question of counsel i think that is one of those situations where for a federal court to say that in order for these to be valid that there are in order for the statute to be in for a start for this to be a false statement there have to be counsel present at the rainman i think again that would defeat the purpose of the statutes which is to in an emergency situation where time is of the absence where studies show that most of the violence be to undermine the purpose that congress had here unless there is other questions all rest on the arguments in the brief to be clear about one thing in terms of their not not being a recording is it is it generally the case that there is a there the record indicates that they're the multitask or at least does have a practice of recording these proceedings and for whatever reason we don't know the reason no recording was made of this this proceeding  and that was argued to the to the jury as well as as in an indication perhaps of an effort to perhaps cover over something but the jury rejected that argument actually pointing point here that this case can be decided even if you don't incorporate the full due process protections and the answer to your question is that is in the language that the government cited from young the th circuit decision which says that the opportunity to be heard to participate hearing requires that the defendant be given an opportunity to participate in the merits of a decision making process and as judge lynch indicated there is no evidence that there was a merit determination so there's no evidence the court was prepared and ready to hear from anybody about whether this or this order should be issued and there's no evidence then that the defendant could have only arguing that the due process clause the additional due process is waived not the plain language interpretation i would argue that it doesn't matter but just to make that point also as to the right to counsel i  to position that defendant must have a right to counsel and every one of these proceedings but in the facts of these cases it shows that the procedural weren't met and in light of the fact that there's no evidence that court was ready to hear anything there's no evidence that the brain was given opportunity presented a thing and therefore the lack of counsel i think pushes this case towards another way if you had a lawyer it would be a different case that's not necessarily the same thing as i mean he was understand everything you're saying he was given one day's notice the allegations he knew it was a criminal proceeding right and he was aware   the other argument would be on the other side which would not come out come as a surprise and so the issue for you is why he was actually given an opportunity to a meaningful opportunity to participate in the proceeding and you're saying now you know i think that's the easiest way to decide this case but i would push back against your notice them factual and argument just made in that i'm not sure exactly how much was discussed between the sheriff and mr bremer about what would happen at the arraignment other than that there was a charge and that he was going to come court and you know be told that he was being charged as to whether there had been or protection bail hearing of any sort and determination nothing like that or even the fact that an order why did a shoe well that's certainly yeah nothing in the record about that and filing these proceedings are different  different from was it practiced over vermont not not in new york state but are different from an arraignment do you i right i mean you're not going to be subject to some restraining order you're brought in on a range for  it in this case it's not clear why the judge both parties at the defense counsel and the prosecuting u s attorneys you say spoke with the judge before this case and asked him if you had any recollection he said he didn't  you thank you both for your arguments