did not get to tell his entire story to the jury of his peers when he went to trial for felon in possession of a firearm and felon in possession of ammunition he was found guilty and sentenced to eighteen month in my brief i've outlined a number of issues but i would like to begin with the testimony in which i tried to argue that he should be allowed to argue for innocent possession the government has brought a motion were i'm left with the briefs without reading that testimony carefully is why it isn't what he actually testified to after that in lemony ruling what what didn't he get to say never heard why it was thought because the five after the encounter with the airport police he drove the probation office to turn in the weapon he did not get to say to ten in the weapon i believe it was that he said he drove to hi probation officer sees probation officer many times during the testimony the court reminded him that he could just answer yes or no questions and i was reminded to make sure that i bade by the court's order not to get into that reasoning so he never actually got to say those words that i want to do to him in my firearm count because i want to ask a predicate question that we've that we've sort of turned into a question you ask after so without deciding which is why should we backpack they pick up a backpack and inside that backpack is a firearm and they know it's a firearm they're a felon they've been around guns before they look at it and they're like oh my god now technically they are guilty of knowingly  mediately calling and leaving the bag there felon takes the you know there's a gun takes the backpack and then sees his arch enemy two blocks down pulls out the weapon and fires at him i mean it's a fine if it's somewhat of a farfetched scenario but i mean that that could have been part of what congress did it's just an errant lee dangerous to have felons running around with with guns sure if that part is true but let's take just that five minutes of when he opened up that backpack in looking going oh my god that's what  opens it up it's not a b b gun it's actually a glock so now he's guilty and they find it hard to believe that congress said oh that would be knowing i guess would be knowing possession but what if he immediately threw it down you know and said i got to walk away from this and then he called the police and said hey type of defense do you think i'm not sure about that but i do think it's something that should be left up to the jury that they can hear hear the evidence and decide ok we now have a jury instruction that tells us what  said to the district court judge at the time it would be different if i was asking him the questions and here's why we have to keep in mind mr sarah was an individual that not once but twice had been found incompetent by the bureau of prisons th time they said he is delusional but it is competent and we have to keep his delusions to the side so it's very difficult for him to get up and just proffer and give a statement and then the court may recall in the trial testimony it's not just about what morning to eight o'clock in the morning why it was he was knocking on a probation office door eight o'clock in the morning and why it was that he didn't tell the police about the firearm itself and several times when i attempted to ask that question i was  to and the court sustained that objection so we never really fully got to even tell a story in a profit because it was difficult for him it is somebody that we're dealing with mental illness and again the delusions was still th think it would have been different if he was actually giving trial testimony this is during a proffer well he was able to place in the record  and up the kind of the parameters of his account which was that he had possession of the firearm for seven hours right yes and after discovering it at the airport that's cracked and that there were airport police yes and he made two or three visits to the probation office without dropping off the firearm turning it in and disclosing that he had it that's correct so what you think i mean didn't wasn't that enough for the judge to in this case to understand what his proposed testimony was going to be and to make a to make a decision whether that testimony it really as a matter of law could could support this defense if we were to recognize we're and i think part of the problem is that you have to look to see it what the individual under the mace and you have to look to see did the person trying to attempt to get rid of the gun and that's the part we never got to really explore because there was a reason why he didn't want to turn in the firearm to the  he had a firearm for seven hours and it wasn't until he got to his probation office and actually met with that probation office that he wanted to then tend to the gun however was not allowed to get into why he wasn't turning in the firearm to the police magistrate level about his competency there was also a sealed hearing in which mr starr was not satisfied with my representation had been sending what i would describe as rambling letters to the c continues to have delusions but there's nothing we can do about it well but that sounds like it has to do with his competency for trial things like things like that i'm talking about it proffer of of evidence which would back up what i understand is the claim that for for mental mental reasons mental issues that explains why he didn't turn this weapon ian earlier and more i had it for seven hours so what i'm asking is what's in the record what's in the trial record as far as a proffer of that kind of of evidence or do you think the judge was just to assume that that testimony would be would be offered if that if the defense had been permitted you know the probation officer bobby harrington testified at some point she received a call from minneapolis police and they were con sensical messages a lot of rambling and she didn't know mentally how he was feeling so we did actually have testimony about that that i recall scope of mr basara as trial testimony i think this court asked just the exact right questions one of the right questions let me let me go further than the questions are any other can tell you that my concern about this issue is almost exclusively focused on the bottom of page fifty eight in your brief where you write you don't need to object it's short that the district court correctly found based on this court's precedent that could not meet the prerequisites for the defense because that and particularly the nd prong of of the mason decision if we were to adopt that absent that that use of the word found why isn't this a another words the district court heard a proper i think construed that as as as being what what the substance of the testimony that the motion in limine e was addressing and found that that did not meet the and that's the the the defense that the defendant defense counsel was urging what what case law says that that's a proper role for the court to cut off a defense because i don't think if the jury heard the jury would find that the defense was meant that sounds like a a corruption if you will of  roles i understand your question your honor i believe and ample case law supports that in the sense that the judge is off the district court judge is often tasked with assessing whether there has been a sufficient factual basis presented on a proffer to rise to the level of meriting an affirmative defense in the defense brief they or rather at the trial defense counsel compared this to in a trap and defense or other affirmative defenses that a defendant might raise and it is frequently the role of the district court judge to either hear a proffer or to hear argument on what is what if what's your best case where that the court made the ruling not after hearing the testimony that the jury heard but in a profit and ruling on a motion and women a that the private the the court and the jury of hearing the way the defense would have played out test them in the testimonial environment several cases all present the court with some that are directly on point as to the innocent possession defense the circuit's own cases where the circuit has declined to decide whether the defense applies but has found that the district court properly ruled based on a proffer and the evidence in the record that there wouldn't be a sufficient even if mason applied to this circuit the facts are not sufficient to put that to a jury because they didn't establish and which ones were based on a proffer rather than than the testimony itself and the refusal to instruct after everybody heard the testimony your honor i don't recall whether right involved a proffer or testimony but the role of the district judge is the same in the sense that the proffer is an opportunity to give the best case scenario of what might come in and in fact i'll note so to answer the court's question the site would be six hundred and eighty two f rd one thousand and eighty eight that's united states v right there i think that's in your i think that's in the brief i believe it affirmative defense can apply so that could be the supreme court decision and taylor v illinois which dealt with whether sufficient basis had been given to put in certain experts that weren't relevant a nd also united states versus young which is a supreme court decision in which the court was evaluating whether a defendant was intitled to an affirmative defense and determined prior to putting it to a jury that the facts put in simply weren't sufficient and that that is an assessment for the trial judge think your honor you've asked the right question that if there were a borderline issue if the facts seem to arise on an available affirmative defense then that would be a question for the affirmative defense were available giving the defendants best day in court both based on his proffer but also i'll note the defense counsel had an ample opportunity to extend on the expand on the proffer of the court actually engaged in some testify but i mean this is sort of like judge i have to get in my ten for all four b cases and not just to respectfully your honor the government was seeking to avoid jury nullification that the defense had signaled quite a bit was going to be its primary to the extent to defend that we have we have a notion if you precluded the defense of the jury from hearing an arguably let up on the fence i mean you raise you've poked into the constitutional prohibition that the constitutional provision that allows of fair defense to be heard your honor to that constitutional right although fundamental is not a quote the supreme court on this it is a weapon but it is not a weapon that can be used irresponsibly and so when a defendant is clear in advance of trial that their primary theory of defense is going to be jury nullification it's going to be a defense that is not available under the law and instead an appeal to sympathy or an appeal to a sense of justification that is not available it is appropriate to ensure that the trial limited will go in and possession prosecutions nullification is about the only the only practical argument you've got if you choose to testify but your out of the constitution does not guarantee a defendant the right to argue issues that are neither relevant nor available under the law with this this is this was the court did not rule this was not available under the law and that's the problem the court  the court could have made a prediction that this court would not follow mason and precluded the testimony for that reason you're right your honor the co or the court could have said i'm going to carefully control this is all i mean it it seems awfully close to what you admitted in the borderline case yada yada let the testimony in and then see where it takes you your honor i'll note on the facts of this case and i think i understand the court's concern the cases that other circuits identified as those borderline cases typically involve ten to fifteen minutes of transitory possession and a straight path to forfeiting the gun or distancing yes your honor the question you have this come up i mean if this if this war going to be asserted in this trial as a defense wouldn't there be a jury instruction requested correct your honor was there a jury instruction requested on that on  innocent possession not formally your honor and that raises a interesting procedural problem with the defense's position on this appeal which in their brief they say the court improperly denied us this instruction and we should have been allowed to assert the defense but if the court reviews the record what in fact was put forward in the pretrial motions and at trial itself was we want him to be able to give a innocent possession narrative so that he can tell his entire nullification story but we haven't decided yet whether we will seek the formal defense and the argument by defense was essentially the jury is smart enough that if we present them with a lot of irrelevant nullification type testimony and we don't get an instruction that allows them to use that testimony the elements themselves of nine hundred and twenty two should be enough to keep the jury from being confused it wasn't until the court made its ruling on the proffer that she should not be allowed to stray so far into nullification testimony that the defense essentially said i object to that limit so it is not clear from the record to me that an instruction was formally requested but after and this gets me to a question that i think well i'm not sure i understand all that now what i was talking about is a lawyer drafting a proposed instruction and offering it to the court for him for ruling and judge i would live here to give this instruction would that happen the instructions presented by both parties thought simply to present the elements of nine hundred and twenty two dollars however after mr sarah testified and still was in fact able to tell his entire story the government sought in additional objection there was an objection and so i think that's more there is there was there was by that was an objection to that instruction or act and the objection was it's not necessary that the jury is clear enough on the law that that is overkill in explaining what it is the court overruled that objection and presented it and that's because i and i'll respectfully disagree with ms at wall's description of the record mr basara was in fact able to get his entire story in one direct repeatedly said after i found the gun i went directly to my probation office when it was an open i did some other things and then i went directly back and then on cross he continually repeated twelve times i was trying to do the right thing and that's why i was directly to the probation office after finding my gun i'll also note that during the proffer and in the post proffer discussion with the court the defense was able to delve very deeply into the issue of yes he had these interactions with different law enforcement but he did not trust the law enforcement and that's why he didn't turn it in so the court in reaching its decision on what the scope of his testimony could properly be under the law without putting in irrelevant confusing nullification argument was based on this in his best day in court if he is able to establish he did not trust other law enforcement he was trying to do the right thing he was trying to take it directly to probation to turn it over the court determined that those did not rise to the factual predicate to support the availability of this defense if the defense even exists but judge droste asked if i can segue you asked a question about the statutory language itself and i'll note that post briefing there's actually a th circuit that has joined the position this is not in the statute and it cannot be read into the statute and two cases have come out since briefing from the th circuit that hold that so the other seven it's total that  press the innocent possessor and to doubt six circuits that have said as a matter of law on the statute it doesn't exist the d c circuit is the only stat a circuit that has said we're going to make it available and then we do so yes certainly or i think you yes and i will note just for today's record that both of them involved again short periods of time ten minutes fifteen minutes of possession and immediately trying to get yourself to law enforcement and the record here is extremely clear that mr sarah found a gun if his testimony is to believe he found the gun innocently while he was or shortly after interacting with airport police he could have gone to them did not he then did a series of errands and the court found based on the whether or not he took the gun with him into wal mart that he had handled the gun that he had told officers that he had taken the gun with him to protect himself and then ultimately six plus hours later after he was placed into custody he indicated that he had the possession of the gun this was not a case anywhere like those that found or any thing like mace and where they found it could apply but ultimately the plain language and two makes clear that it is knowing possession of without regard to intent and when we look to what was the congressional intention here a point the court just a few sections later in the same chapter section one hundred and thirty also dealing with firearms violations there congress created a two tiered set of penalties one penalty for knowing possession and one harsh or penalty for knowing possession with intent to commit a crime and so it is very clear that in drafting this firearms regulation although judge  has noted there might be some cases that seem unfair congress has appropriately weighed those considerations and decided that it is absolutely a risk for felons to be in possession and the st circuit used language that i find helpful for that analysis which can very quickly turn into our attention and so to the court's point that a felon having it for even mere moments may decide to then use it in a dangerous way is why congress took this harsh stance and why congress has appropriately weighed that available that on availability of intention based defenses so unless the court has any other remaining questions on that the government rests on its brief on the record and asks this court to affirm below thank you let me ask you a question before you begin your rebuttal just to clarify the court gave an instruction that said the reason the defendant may have had for possessing the firearm and ammunition was irrelevant and apparently there was an objection but it but the giving of that instruction is not objected to on appeal is not it is not one of the issues presented on appeal that i theory of defense doesn't that really kind of put all this to rest no your honor because i do want to address about the jury instruction for the theory of the defense to be very clear after the government filed a motion in limine e the court then did a written ruling saying that she would want more information but was it kind of gave the green kind of give a red light that this is probably not going to go with the defense of innocence to innocent defense during trial after the to the proper made it very clear that this was not going to be a defense that's going to be allowed and at the time i made an objection continuously as the court know sometimes in criminal trials the defense theory instruction doesn't come until the end of the trial the court made it very clear that that was not going to happen and in fact one object had me when i did object to the government's jury instruction i stated that i wanted to continue on with my jackson the court again mentioned the mason ruling in the d hit the jury but it was very clear on the record that that's what i was asking the court basically told me at that point don't address it in your opening and do not bring it up in your closing and you don't bring it up during cross examination and at no time did they argue jury  thirty in the morning when i went to the bins fill police at ten o'clock in the morning i didn't turn in my gun because of these reasons but he did keep going to my probation officer three times to ten and that weapon he didn't get to say that all he said was