anyway we wanted to argument because of the united states or the bond versus united states issue elements of this your honor may preserve the court the elements of the crime here simple possession here that he knowingly possessed but the russian and i'd like to focus on the bond issue as well since that is yes your honor and if you look at the government's reading of the statue and look at it in a very narrow and literal sense mr levin darr says conduct certainly meets the criteria of section one seventy five but as the court instructed in bonn one has to look beyond the statute and look to the legislative history the biological weapons convention was enact it in order to combat weapons of mass destruction terrorism the threats of germ warfare just as the chemicals weapons chemical weapons convention was that treaty was there to combat those types of concerns as you know the problem though that the unfair reisen is one of the deadliest and it has been used for terroristic purposes internationally and if it gets loose in the air it can do a whole lot more damage than what the situation was and certainly your honor and if there had been more facts in this case to indicate that mr levin dearest had intended some type of mass harm plot or something that would engage in in mass casualties terroristic activity then certainly this well there was some interesting testimony that what he was going to do was set the house on fire and use the rice and to try to keep the firefighters away but in fact if it had gotten loose it certainly was a danger to the fire fighters and might have been a danger to the entire neighborhood so it's not it's not entirely i mean it's not just one person that it's and that as it was and it has the potential for that much larger than that i would disagree your honor at page one eighty five of the record indicates on cross examination that even the government's expert stated that could only have harmed two hundred fifty six people if it had been injected into each of those individuals that there wasn't that no danger through inhalation and again it's important to point out that mr levin dearest had this rise in in his freezer in a government's evidence indicates that he would is set the house on fire and he was hoping that the firefighters wouldn't enter his house and wouldn't therefore stop his son they gonna hang it from the door or something and what the know that it was right and that would keep them out  belief so it was an elaborate suicide attempt i'm not sure how successful it would have been but little that the firefighters would have understood their rights and was inert at one hundred eighty degrees and would therefore not have entered the building but even if he had done so the ohio co provides the appropriate satch used to sachi to combat that type of criminal behavior for example if that firefighter scenario did in fact happen if he had taken some affirmative steps to actually engage in that elaborate suicide plot then there are codes in the ohio revised code that would have combated that type of activity misconduct at an emergency inducing panic it's twenty nine seventeen point thirteen and twenty nine seventeen point thirty one respectively in fact as the government alleges he tried to poison his stepfather by putting that poison in a soup well that's just like carolan bonds activity where she tried to perhaps have a rash for her husband's mistress by putting used in a different way for example put into water supply or use in greater quantity could in fact have been lethal and the court want pointed that out enough if mr levin dearest had put enough just dish detergent in his stepfather suit if he had actually done so that could have killed his stepfather too but the testimony was that it certainly would have caused some type of g i discomfort but it wouldn't have killed him but even then an attempted murder statute an assault statute would have been appropriate in fact of the ohio revised code twenty nine twenty seven point twenty four has a code for contaminating substance for human consumption with use of a biological substance such as rice and and even the mere possession twenty nine seventeen point forty one improperly handling infectious agents that would have been something that the state of ohio could have chosen to prosecute mr levin terrorists for because an infectious agent is defined as a microorganism such as a virus a bacterium or similar agent that can cause so almost anything could opinion i mean what did they mean and where would you draw the line almost anything could be could be brought under the ohio statutes does that mean it can't be brought under the the federal statute just because it can be to locally know your honor just because there are current state crimes doesn't necessarily mean that it couldn't be prosecuted under section one seventy five however bond does try to draw some type of line there has to be some type of commonsense limit to where there's a difference in carolan bonds actions or mr levin there is his actions and that of a terrorist and that's by looking at the backdrop of the biological weapons convention and its actual congress enact it section one seventy five they did so with the hundred eighty nine anti terrorism act they weren't the impetus of the day of the act wasn't a suburban man driving a castor beans in his basement instead it was weapons of mass destruction or mass casualties terror terrorism and there's nothing in the record to indicate that mr levin dares had any of this type of intent that this bond local situation plus the way this case was tried seems to indicate that just possession is not sufficient and then the question would be well what is the other element that would make it sufficient and it would seem to me that the other element would have to be intent to use it in some way that is to say if you just possessive for fun you got it in your refrigerator for ten years or whatever and you don't intend to do anything with it and and apparently this case was of tried on that basis be in fact they introduced evidence of two different ways in his imagination he thought he could use it or you might use it or even though he had not created it for that particular purpose apparently well so him so there's some intent problem here the government must of thought existed otherwise they wouldn't approve of what they thought his intent was right yes you're alive why did the government want to prove something they didn't have to prove about intent if they didn't have to prove it i'm not sure your honor in that something that you would that the government but knowing possession of the rice and with an intent to use it as a weapon is in section one seventy five and they have been appropriate prosecutions for possession and use as a weapon under the foreign state or in the organization to do so that isn't this case and then there's been a additional offense whoever knowingly possesses any biological agent toxin it  prosecution when it goes to a statute that was in acted in order to enact the biological weapons convention that was clearly drafted in order to combat something far different far from the scope of mr levin there says local and unremarkable conduct and this circuits have considered other cases were section one seventy five was prosecuted appropriately and all of those cases have an element of mass harm and of terrorism for example in united states versus hale when the eleventh circuit considered a case where the defendant mailed what was purported to be the hanta virus which is deadly to a u s bankruptcy trustee in that case the court analyzed the facts of that case and stated explicitly that in natural parlance that would be referred to as terrorism when mr eleven terrorists did certainly wouldn't be referred to as terrorism and doesn't even fit within the definition of terrorism within the us code and the u s code the definition is  to influence the policy of a government by intimidation or coercion to affect the conduct of government by mass destruction those are not the facts of this case and this court has considered the application of bond in two recent cases in u s versus tovia this court considered a case where the defendant had committed the local crime of child abuse and instead he was charged and convicted under the federal force labor statute and this court in applying bond determined that there was a harm to making a presumption that there should be some type of change to the balance of powers between federal and state government and that there should be there is some type of harm in upsetting that balance and stripping the police powers away from the state and in that case they reversed the conviction because it went beyond that federal forced labor statutes purpose also most recently just a few weeks ago in united states versus callahan the court considered a similar case also under the forced labor statute and in that case the court went on for several pages describing the grievous facts in that case involving a minor and stated that the federal forced labor statute was passed pacifically to it spanned the forms of coercion that could result in forced labor and in fact the defendants charged conduct went to the very heart of section fifteen eighty nine and fifty nine hundred nine seconds served well the heart of section one seventy five concern is the horrors of war the the atrocities of war weapons of mass destruction concerns of germ warfare none of those are apparent in this case mr levin dearest didn't have the intent to do so and therefore it goes far beyond the biological weapons  roger and me because the court at that you bombs on behalf of the united states this case arises out of defendant's decision to process and to possess rice in a highly lethal biological toxin it's capable of killing an adult human with a dose the size falls squarely within the heart of section one seventy five the different the department of health and human services has placed rights and he possessed what is the other element that has got to be proved to me well your another element that is true your honor maybe it is another oh that's true and it's because under one seventy five a which is the provision that's at issue on this particular appeal there's an element that says that the  defendant has to possess for use as a weapon and as a result the government put forward after kerry that defendant did in fact possess this raisen for use as a weapon but on two different theories about down and oren off the fire department that's correct your honor those were among the pieces of evidence that the jury heard there was also evidence from defended cellmate that he may have somehow dispersed the rice in in a crowd on the street or something of that nature so there were various different fish it wouldn't work if he had put it in the soup right well your honor you're correct that with this particular mix of price and it would have been fatal if ingested it would have been fatal on the evidence that was before the jury if injected or inhaled and there's an issue that that is mentioned in the briefs about whether it would have been fatal were lethal if if inhaled and that really goes to one of the problems here is the jury got two or three theories of intent to intent to do what and one of the intense to put it in the soup was not possible so we don't know or what basis this jury returned as a verdict of guilt which into that did the jury find look your honor i don't know if that really makes that much of a difference because the statute requires us requires to prove that the defendant possessed rights in and it was  for use as a weapon and we met both we got a lot of case law that says where jury is left with two different theories one of which is not a crime yet they are instructed with respect to the theories theory of the case and they are allowed would be allowed and the jury would be allowed in this case to fight on the internet in connection with the soup and the occasional always where you have a theory that works for that doesn't work that's a problem your honor so my response to that would be that regardless of how defendant planned to use the regardless of whether the way in which defendant planned to use the rights and whether that would actually be successful he didn't plan in fact plan to use it for uses a weapon and he didn't fact have the rights and so  of intent to do that your honor i'm a i would just refer to the to the language of the statute which is that the we have to show that the defendant possessed the rice and for use as a weapon and the fact that the way in which  dismissed one of the charges after trial as it was for include a defense of the other and this may go to your question your honor that you had to my friend on the other side about what's the difference between section one seventy five eighty and one seventy five feet and i would point the record to the language in the one seventy five a which has this for use as a weapon text which is not included in one seventy five feet and one seventy five b has a exclusion for a biological agent or toxin that is in its quote naturally occurring environment and so essentially what congress was trying to do is in one seventy five they would say you have a stockpile of castor beans but you we have the government can show that you possess them for use as a weapon that is a crime under one seventy five a day under one seventy five b let's say you have the castor beans it's not a crime because it's an it's naturally occurring environment so there's a distinction between these two statutes and in this case defendant was guilty under both respects one respect is the statutes that are stake and in either case section two twenty nine which is the chemical weapons convention statute it's taken bond in section one seventy five a which is the biological weapons convention statute it states here one difference biological weapons don't you well your honor the biological weapons provision just has a definition of toxin that is different from the one in the chemical weapons convention convention the second ever but i mean the purpose of it is the same as well the second so that's just one difference on the language the second difference that i would point to is the for use as a weapon language which is in the biological weapons convention implementing statute and not in the chemical weapons convention implementing statute and third is that the biological weapons convention implementing statute was cited by the supreme court in raich as an appropriate way in which congress can prohibit the possession of an article of interstate commerce and so be the limiting construction that the court gave in bond applies to the biological weapons convention implemented statute there nevertheless a number of differences on the facts in this case criminal division has said to the united states offices hal you should try to deal with bond and what the position of the solicitor general is not to be your of the criminal division when there are yet to the supreme court about what to say here on this biological you don't have anything like that is up to you to come up with something your honor i'm not at liberty unfortunately to discuss the internal goodbyes that the criminal division may or may not have given but nevertheless position of the united states and that is that the facts of this case are very different from the case in bonn and there are a number of differences so first i would point to the fact that in bond and this is in the opinion the court said that that the case is quote unusual and it's announced as was therefore quote appropriately limited to that strongly indicates that the court did not intend a lower court should extend to be announced in opposite cases second bond involved substances and raisen is clearly an extremely dangerous substance that would fall within the scope of two twenty nine so we submit that for the same reason extremely dangerous substances went possessed that falls within the scope of section one seventy five day and then finally i point out that the the court in bond cited cases that it said a case with approval in which it believed that section twenty nine could properly be applied and those cases include the  to use as a weapon and for words used as a weapon so the question then is was it possessed with intent to use it as a weapon it was not used as a weapon and the question is one of intent right so do you have to show that that's correct your honor and the only reason why i'm hesitating before answering with a straight up yes is just the intent sometimes means something specific under the criminal law and i didn't didn't want to suggest that the language was used in that very technical way a lot in general and came specific in caresses a specific intent gaze the you're absolutely right that there is an intent style component in one seventy five days and that's for use as a weapon text and so i just wanted to point out that the gun case seems very much on point here because in that case the defendant possessed potassium cyanide with a plan to commit suicide and potentially that the second charge was a lesser included offense of the first that was an issue that the government disputed and it's a resolution the government doesn't agree with but the government elected not to appeal that to th statutes section two twenty nine and section one seventy five contain the same type of broad language which is why it's problematic and why the the broad language defining biological toxin could bring in anything from influenza or infecting a sexual partner with hiv any of those cases could fall under section one seventy five bond provides some type of limit and and mr levin dare says submitting that bond provides the appropriate limit in this case and that these should have been state local criminal conduct that should have been charged under the sate of ohio's criminal code also the government continues to refer to the five hundred people that could have been harmed by this the record indicates that again it can only be through the injections not through inhalation and really be the fact that the amount of rice and could have hurt five hundred people or two hundred fifty six people is not the question before this court it's what mr levin derose is intent your honor and also to go to your question judge merit about the way your analogy with the gun we just because you know there may be evidence that a person kills one other person but he had ten bullets in there there's not suddenly the implication that well he could created you could cause mass harm just because he had the ability to do so and the evidence in this case does not suggest any type of mass casualty that would fall under these anti terrorism statutes thank you for and thank you for accepting the