conspiracy the mere presence where crime is being committed or failure to report criminal activities and that is precisely what the case against choose them was based on the government's case against very choose them was based in the main on the testimony of three witnesses tracy brockway steve morey and john herdman is the three members of a group that the media does projects  the testimony in this case was unequivocal that this group was originally formed with the purpose of preparing for a natural disaster or a national emergency and to that end the member of this group stockpiled food and equipment and then gauged in our all kinds of survivalist training and in and including firearms training however importantly in this case government has attempted throughout this case to insinuate that it's gun was a fully automatic gun if this is the testimony was that this group formed in about january of two thousand and one and in february two thousand and two was when the group's leader burkett disappeared which will which i will touch more upon later but which is when the group really basically fell apart during that time there was firearms practice that's over eight years worth of time and it defies logic that if in fact larry choose them was involved in automatic weapons that his weapon was automatic that these training sessions all involve the firing of automatic weapons that during this whole time no one ever heard his gun fire in more than a single shot mode is going to be the important he's going trial for conspiracy to  actions to support the conspiracy whether he had the intention and purpose of controlling automatic weapons whether he had the purpose of helping others to do so whether he had the purpose of helping them to store them like being in charge of the firing range the testimony on being in charge of the firing range was that he was in charge of safety again that that would simply be a mere presence  there when automatic firearms were being fired were being fired his testimony was that he was in charge of states to take aspects and i believe it was more a who testified that about one particular training where everybody was told to just fire a single shot that he wasn't talking of in terms of firing multiple shots at a time when you say he was there the players do as a safety person was this a privately run automatic weapons rapid fire and he's the range minister you say that there's not enough evidence for a jury to conclude that a person in that role would still be associated with the automatic when i was doing my firing on the army firing line in the range minister the sergeant said he did not consider himself a mere presence i mean they have a real functional role so that's why i was asking what whether this was an actual i think that cuts if there was something that would conversion his weapon to an automatic weapon his weapon probably wasn't an automatic weapon and by the same token the i think that there was there with there was testimony to the effect that that that that did that it's illegal to possess certain parts of weapons but there is no evidence that larry  ever went to any of the trailers that projects devon's that projects have and things were stored and that he never inquired about it that he ever tried to get to those trailers and again that goes to his purpose  with the local rules of your own district i try to be there is no local rule as far as criminal cases are concerned but for civil cases so as the clerk shall keep custody of the exhibits that are not no idea they were there and if i had known they were there you'd have done it the way they are always kept either by the a t f or the f b i you'd be on your behind your bench they go back after the case is over but they don't run them back and forth every time they need them i one that we can rely on for this case because it's not in the record because we cannot use my experience fifteen years trying lawsuits and quite a few others hearing that we need to go to the record what does the record  tell us about why the prosecuting attorney in your judgment committed perjury prejudicial the fact that the process cuter put the guns out of the out of the sight of the judge who made it very clear that had he known that those guns were laying on the floor the entire trial would have done something about it that the practic procedure in his courtroom is that they go to the a t f or the f b i after they have been energy used no no no no after the trial i don't think that that's what he said i disagree with you on that so  prosecutor to take the weapon and hand it over to the a t f or f b i and store it out of the jury's behind the tape was really taken out of that not necessarily take it out of the courtroom or get out of the area in front of a jury box certainly your honor there was a reason to have the judge to have the weapons present when this when the prosecutor was using him in reference to testimony introducing them in foundation tests morning with these witnesses when mr chairs them testif his responses were i am put in the he was a person who chose to associate himself with these army and therefore they did not drop it the same type of unfair practice that they did in the in the  kid it's not as if it's not as if the defense in this case was that i've never been around these weapons that i'm not comfortable or that i am comfortable around weapons or that i'm not associated with them that they're that would like  believe that he wasn't associated with these weapons but reasonable inferences from the evidence are that he chose to be very much associated with these weapons and in fact he was the rangemaster and he was comfortable with these questions and further  why the mechanics for that automatic rifle that would make it a fully auto so i think the record when taken as a whole really does not support the finding of any unfair prejudice merely by the presence of those weapons on the unfairly associated with automatic weapons that we've seen yes that was just the purpose in joining this conspiracy you know i have some quote you are i have some question whether you can absolutely say the jury could not see those weapons as i s now i can't see what's in front of me on the floor but that's because i'm serving now the jury i don't know if any of those pictures and there's no evidence to show that those pictures reflect what the jury saw when they walked in and out of the jury box that doesn't take you know much to lean over for somebody on the road to lean over and to think that jurors wouldn't mention it in recess or whatever so i find i don't think i can except the record is clearly established that the jury could i want to know the government's position of course it's a serious allegation of prosecutorial misconduct and you know that the department of justice looks on those issues very seriously is that what is the position of the government as to whether or trial and there was no evidence for anything and no indication from anything in the record that s was somehow used for an unfair advantage well there is the reaction of that excuse me counselor the reaction of the district judge who thought it was a one person we have on the record who was there thinks otherwise so mike my concern is that the government now seems to think this is business as usual and no harm no foul know i find that troubling to your honor because clearly the judge should have been watching the prosecutor hand evidence to the witnesses right in front of them and the photographs would seem to reflect that the judge should have been at least in  clearly if he had been aware of it i know that the government wanted taken the necessary precautions it is clearly a situation where it became to the judge's attention later that it was dealt with at that time and the bottom line here  clearly we know from the record that the jury was able to look at these weapons when it was deliberating i think the judge made those findings it is my understanding that the practice is that the clerk will give a receipt for that evidence and it's returned to a secure