hundred six thereby permitting a jury to convict mr faucheux of conduct that was not covered under the express language of the statute when combined the three preserved instructional errors in this case expanded liability beyond what was permitted under the plain language the statute and the objection phrased in what it was taken as an exception your honor to the jury instructions as they were being read no i mean what was the objection stated exactly you can't just say exception right mr bush actually asked them to include the language or for a hobby he also asked them to remove the language supplementing one's income and he asked the court to remove the language even if it's not that person's primary business  something else all of that's not covered i'm not entirely sure what the percentages would be your honor in this well i mean you said primary care he's asked far primary so i suppose that it could be read that way around or in this case however mr poacher was shown to on the trial evidence in the record was shown to have shipped two guns over the course of a period of approximately four of those two guns sold for approximately six dollars well i mean there was also evidence about the eighteen firearms to australia that you can look at how everyone but of course we have to look at it in the light most favorable to the government and there was other evidence about guns there were recovered in his house during the search  evidence about i guess three missing guns that had appeared on the website that weren't in his house so it seems i mean it seems like there was more than evidence and your honor with respect to the eighteen guns that went to australia went internationally that evidence was not presented at the trial itself that was present but with respect to those three guns that had been shown as having been listed on the dark website your honor is correct there were eight handguns recovered in  and twelve and twenty third the trial occurred in thirteen or the investigation and the government's theory of evidence i suppose is look he didn't report any income so there's no evidence he had any income the evidence says he didn't have any other income this is the income you had by definition anything is primary over nothing and your honor that is true that that may have been the government's theory i would note however that with respect to the government's closing argument in this case they did rely on the erroneous or what we assert erroneous instruction and that is the government argued that mr bush was guilty of defense because a person is guilty of that offense quote when it when quote it's how you make a living or how you supple so the government obviously believes to some extent that they may not have satisfied the jury by presenting sufficient evidence that this was his primary source for all we know mr faucheux had a trust fund or various other things mr faucheux was not required in other words to disprove his income and because the congress has made a deliberate choice to state that this is supposed to be a person's livelihood and as we point out the primary objective is livelihood we believe that that bill that should result in a narrowing reading of the term livelihood although it's not defined by stat but under the rule of lenity giving full effect to all the words in the statute we would note that defining livelihood as something broader than congress intended would violate the rule of len by doing so the jury instruction permitted a jury to convict mr faucheux even if it believed that he was a part time gun salesman who supplemented his otherwise lawful or otherwise legal  livelihood through the occasional sale of firearms on the internet and we would note that this error could not be held to be harmless assuming this court finds error because unlike a need or where one of the elements was not in dispute in need of the tax whether or not the false report on the tax return whether the income was material or not the false statement on the return was material was as the supreme court noted the evidence on that was quote so overwhelming in fact that neither did not argue to the jury and does not argue here that his false statements could be found immaterial in this case mr fischer specifically argued to the jury that he assuming that it believed he was the shipper of the two guns that were at issue in counts two and three and by implication count one that assuming that he was the shipper that that was nothing more than an occasional sale permitted under the statute because of the instructional air however mr faucheux was not able to argue to the jury that this could be hobby sales that he could be a hobbyist salesperson much the way that a person might be a hobby stamp dealer or a hobby baseball card and you learn what not moving on to counts two and three the sufficiency of the evidence with respect to transfer of a firearm to a resident of another state it's not surprising that the evidence mr faucheux was  bush's state of residence was inadequate the government didn't appear to realize that this was an element that they were proud to prove at trial in fact in response to mr bush's motion for judgment of acquittal on the counts the government argued quote to violate the statute one simply has to ship a gun to an out of state resident one does not necessarily have to be a resident of a state other than the recipient of the firearm the government's evidence more than established that mr faucheux was in alabama when he shipped the firearm to nebraska the government that adopted the same argument for purposes of the gun was shipped to new jersey now in fairness the government did at the end throw in a catch all that said otherwise we believe the evidence was of what it is clear that this case in this case the reason that the evidence is so insecure is because the government did not understand what the elements of this offense were now which count you talking now counts two and three your  and in that case under eighteen u s c nine twenty two eight five the government was required to prove three elements that mr approach to transfer to firearm to another person i don't think that that's in dispute well he may dispute his identity but a firearm was transfer that when mr faucheux neither mr postman or the recipient was a federal firearms licensee and that mr new york had reasonable cause to believe that the recipient was not a resident of the state as mr fellowship in this case the government presented state august twenty third teen in october two thousand when the two transfers occurred during surveillance spanning those fourteen months agent conway saw mr bush at near a residence near a residence in eclectic alabama once she was able to say it was either in may of twenty fourteen or in two that on october thirty one twenty fourteenth searching the eclectic residents near which she saw him located three items with some variation of the name michael faucheux one was an expired driver's license one was a receipt from the year twenty ten which preceded these charges considerably and a final was and the trade financial document bearing the name michael a photo shop and among them reality my address i would note that the evidence in the record was that mr faucheux had a father by the name of michael faucheux who had among them redress at that time the government provided no testimony that anyone found any of those typical items that you would find in your home for example a toothbrush clothes that fit mr faucheux any sort of voter registration card any sort of magazine subscription in his name a utility bill a bill for an internet provider as we know mr faucheux was accused of selling guns through the internet it seems remarkable to me that the government was unable to establish that there was an internet connection that was his mother's house your honor was in montgomery alabama one in it like the one in eclectic was not his mother's house around and there is no evidence in the record as to whether anyone who owns the eclectic address whether there was a lease on the eclectic address no property tax records no testimony from a neighbor a landlord that they'd seen mr faucheux so it is his father's driver's license your honor why is it that well your honor at the time it has to do with whether at the time of the sale mr fisher was a resident of the state and with respect to that driver's license the testimony was that it was expired didn't one witness also testified that between two thousand and five and two thousand and eight he actually lurked with your client at a month yes your honor absolutely strong circumstantial evidence he was live in who has the time or not that is very strong circumstantial evidence or direct evidence even that he was living years two thousand and five and two thousand and eight however your honor the evidence is that after two thousand and ten mr faucheux sort of drops off the radar in terms of anything and the government actually presented evidence that mr faucheux had no employment record with the state of alabama and they contacted  us industrial relations to try to find out if he had in some ways to try to find out if he had bible income and they learned that mr fisher was not employed by an alabama employer during the time of this one more question about that the alabama driver's license that was expired expired on december twenty second twenty thirteen right i'll take your honour's word for that on that here well the sale occurred in august of twenty three so why isn't  he the license that was not expired at that time that reflected in alabama residence for mr faucheux not sufficient to establish or as well assuming that that light assuming you're hon twenty seventh two thousand and fourteen or to note that october twenty seventh two thousand and fourteen mr posner ship the firearm to new jersey october thirty first of two thousand and fourteen four days later the a t f agents and local law enforcement poaches shipped the firearm and talking about those documents first mr hahn made a point to bring up mr bush's father had a similar name there was no evidence in the record as to mr phocians father's name  now the address on the paperwork was not the boat house road address it was the seminal drive address however there was a mug omri address and you also had the receipt from the pawn shop moreover you had all of the inventory in the guns all that was there just four days after he shipped the firearm to the close proximity in time the strongest evidence mr bush's residence on count three you also had those special agent conway regard just as to count three viewing the evidence in the light most favorable to the government reasonable jury could easily be that as to count three at least at the time ship that gun mr bowser was not a resident of new york and it was new york that mr potion believe question that the government asked the witness at trial was are you a federal firearms licensee the witness said no the government then asked did you ever hold yourself out as being a federal firearms like government said no now admittedly the government did  in august of two thousand and thirteen did you have a federal firearms license however the jury could easily draw an inference from the testimony you know are you and in this transaction did you ever hold yourself out the jury could draw an inference that that present tense also extended back to august of two thousand and thirteen moreover the special agent had just testified that at the at that point he'd been with the a t f for twenty five years reasonable jury could draw a conclusion that the special agent did not in august of two thousand and thirteen have a federal firearms license that he didn't have in fifteen and he didn't tell the mr bush about when he was engaged in this transaction how long after the transaction was the trial occurred in june of two thousand and fifty and this transaction occurred in august wouldn't be shielded from criminal liability simply by having another job to defendants might sell the same number of guns in a year make the same profit any but one had a second job the other one didn't have a second job makes no sense of the one with a second that point both of those packages had a return address of computer doctor for seven a dope like a road and often so the undercover agents went over to four seven eight zero zero like a rodent although it's hard not to cover they were just agents went over to four seven eight it all over and there's no computer doctor business the owner of the business said yet way back when there was some or the owner of that building said way back when there was a business call computer doctor here but it wasn't open in two thousand and thirteen  so the agents talked to the guy who had run computer dr way back in two thousand and thirteen and that person said i've never heard of we didn't ship any guns we didn't ship anything folks just dropped the computers off i fixed them and then they came back and picked them up so we didn't ship anything in the mail upwards and said he would have had these enhanced months not a plot that works only if the upward variance would have been reasonable yes i had that happened well it would be an upward variance to simply take two levels off that would still be a within guidelines  i'm sorry if if if the defendant is correct as to all three sentences you're saying he wouldn't have been i'm saying even if he was correct as to all three issues then we get to harmless doesn't mean much because we never found it within the guidelines right age senates unreasonable but here it would have been if all three arguments were accepted and we found three errors the judge still said i forever and frankly this license this is similar to fry's i would also note that in fry's the testifying agent was a an a t f agent and that didn't seem to make a difference to this court that there is no prohibition that we've been able to identify and  and that's in a case where livelihood is not does not accompanied by principle objective we would note that there they talk about multiplying by two thousand hours and determining that any other income the person has is not the kind of line is  to twenty five in my brief the guidelines it's a comment number two to four hundred three engaged in a livelihood means that quote a defendant derived income from the pattern of criminal conduct than any twelve month period exceeded two thousand times  existing hourly minimum wage under federal law and be the totality of circumstances shows that such criminal conduct was the defendant's primary occupation where's that your honor that's the united states sentencing guideline manual for b one point three i'm using it as evidence of how we can how this court could interpret livelihood and why this court should interpret livelihood narrowly and that is where it's undefined and we need to look at other sources and other possible sources i think probably one of the best sources of the sentencing guidelines they are not exactly charitable to defend