experts and particularly that of dr cooper's made out the elements of the self defense defense particularly of course viewed in the light most favorable to mr big since they must be i think the two elements that the district court found most problematic w imminence element and the proportionate response of force element which it characterized somewhat differently as a lack of reasonable alternatives so i would like to focus on those two elements and  problem i think the the place where we're on firm ground is the evidentiary rules argument that there was no problem with the bulk of the either expert's report under federal rule  a little air because everything flows from that right that would be the third element that the court that the court found so problematic that it was not analyzing the case under the appropriate element which is  a use of reasonably proportionate force which is what this circuits case law says is that is the standard but rather under the duress element of lack of reasonable alternative and we argued both in our brief not knowing of judge since the district court in this case has since retired and mr biggs is put back in the position he should he he should be in which is that everything is now open he's now before the district court once again and that there was no trial before your honor it was it was all done on a the government's motion to preclude the experts altogether so there is no real prior record to reach to any jury or exactly or  engaging in other plane negotiations perhaps the same ones i mean i don't know how that would exactly exactly your honor ok coming back to the court's question about the proportionate for issue if again if the court is inclined to view this as a district court's error in the in considering which standard to apply then of course the court should reverse in remand  expert recorder is credited then the attack or at least the the the harm threatened to mr biggs was certainly quite imminent and i would actually also point the court to a portion of the proffer made at the final hearing on this matter it's page one twenty six of the excerpts that mr smith actually did threaten mr b once again as the two men were on the way to the wrecked cages where the incident ultimately occurred  and so i would submit that the the imminence prong of this self defense defense is certainly satisfied moving back again to the guards entered so i would argue that the areas in which the district court had found awkward in this case she really should not be awkward for this court a rever also misplaced does the court have any further questions or should perhaps i should revert reserve the rest of my time and i think you just first as to what the record showed about whether mr biggs was supposed to be transferred whether he was awaiting transfer the information that we have in the record before this court is on page three of dr cooper's report  it says instead he mr biggs was awaiting transfer to another prison and the staff left him in segregation pending transportation so so the court's understanding of the facts is i mean as far as we know from the facts in that case that defendant really could have requested a transfer or we could have gone to protective custody and those would have been meaningful solutions to the issue that he faced but we do have facts in our record that show that that was not the case here as the court has pointed out has already waiting transfer and he couldn't go into protective custody because he wouldn't be safe there it's not the case as the government has has stated just now that mr biggs simply didn't want to undermine his status within the pri n it's the case that he wasn't that doing other than what he did would have left him open to attack and possibly gotten him killed the record does show that he had been attacked five times while in prison stabbed five times once while handcuffed with a guard nearby who did nothing to help and in fact the coopers report i think it's on page six there does say as well that in all of his years in custody and mr biggs has been in federal