good morning your honor some may please the court alexandra gates on behalf of mr wallenstein who is challenging his conviction for making criminal threats against presidential candidates after mr wallenstein called the f b i to self report his own disturbing thoughts and ask for help here on as we've raised some overlapping issues that all circle around and relate to the lack of proof and some instructional problems regarding m like to focus my initial comments this morning on what i think is the clearest lens through which the court might view those errors and that's willfulness your honour's under the plain text of the of the governing statute and the supreme court's decision in brian we know that if mr weinstein didn't act willfully if he didn't have a bad or unlawful purpose in making his statements then he could not be convicted he should have been acquitted now at trial the government offered no evidence at all of a bad purpose instead what the government told the jurors was even if mr one sense of purpose was to get help even if he was trying to do the right thing that didn't matter that was in the government's words not jurors were told is they could convict mr wallenstein if he made a statement that he intended to be understood as a serious expression of an intent to harm somebody else but of course mr wants to its entire defense in this case why is it he was expressing an harm not for some batter on lawful purpose not because he was trying to threaten anyone but because he needed to explain why he was calling for help the jury could as the jury could as believe that there was there was other evidence in the records so i am concerned that i am going to count on assassination of donald trump and hillary clinton i'm very serious this will be attempted i understand that you presented your theory of the case to the jury but i don't with that very sentence and i cannot see that happen i cannot so i'm trying to reach out and hopefully there will be someone i may be able to talk to in this matter and he goes on at other points throughout the call to say i don't want to see this happening i'm trying to stop it that's why i'm calling a bad purpose and unlawful purpose so it may well have been perhaps the jury credited that that the government's argument but perhaps they didn't perhaps they thought that mr wallenstein in fact was calling for help think the ad purpose it had to be shown beyond the purpose of making a serious threat do you think there's some other purpose that the government had to show well the language of the instructions was not from his boils for agent baumgartner to believe he was seriously expressing these intense that he had in his head these intentions of harming someone but he wasn't doing that with about professor book that was jury the the difficulty i'm having yeah this is as very close case but the difficulty i'm having is that that was the jury's obligation to sort out because your client had the opportunity to present his theory of defense to the jury and the jury never the less came back with the guilty verdict and i'm curious as to what case are you relying upon in the context of making a threat that specifically requires elements for the jury that doesn't necessarily bind a later case if based on the actual facts that leader case a jury would have been misled and so that we get our instructions we get our instructions from the cases and that the case tells us the elements of the offense that's what we put in the instructions as judges will respect i'd respectfully disagree your honor if the facts of the case at hand don't need to fit what those prior instructions talked about and so this this court cases are very clear that if the jury is given no outlet for acquitting based on the of the defendant's theory of defense which is which is precisely what happened here the jury may well have believed he had no battery unlawful purpose but problem with the instructions really crystallized when in rebuttal closing the government argued this this point his purpose didn't matter it didn't matter if he was seeking help at which point the defense objected  and the court did nothing so we believe that would be preserved and additionally problems with the instructions about omitting the willfulness element that is a pure question of law that this court would review do novo to answer the have a long standing presence in our circuit but the asking for help defense doesn't have a long standing presence in our circuit well i wouldn't necessarily frame it as asking for help defense because of course this case is very silly generous i mean it is the rare defend into before acting on their intentions call the law enforcement to say please help me i don't want to do this so we have a very unique case but there is a long history of willfulness being required and i mean it's written into the statute there's also a long history under supreme court case law of subjective intent to threaten being required and those those coincide the jury was instructed as we've gone over and ten that the state interest as a threat and so what more do you think understood as a threat is what the statute you know prohibits so that is that the at per well if if the instructions have stopped it instructions thirteen of fourteen and simply said threat i would agree with your honor the problem is the waste that was defined in this case is   point the court to the to a nd problem with the instructions that i think is worth addressing and that is because this court's case law is very clear that the other element the objective element is about a reasonable person and here into the element should have been whether a reasonable person who heard the statement would have interpreted it as a threat the instruction here however told the jury they could convict if mr wallenstein made a statement that would be president so when that same string say this case is the court will see the eleven thousand five hundred dollars in u s currency case and that's a case where the instructions tracked the statute verbatim verbatim there was no in terfel late but here this is our construction of eight hundred and seventy nine i don't believe there's another one and the other languages are different statutes yes and so if the court looks at back to syria at the next page after after the one the court was quoting earlier it does mention the reasonable person standard over and over and over and so again that those limited quotations from which the court or the district court drew its instructions was not the full picture there's no question under kaiser and back to sarin that reasonable person is the standard there was nothing in these instructions at all about whether the person had to be reasonable and in fact the instructions suggested it might have been the recipients i do want to save some time for  this morning your honour's may please the court graham all then for the united states the jury was correctly instructed using this court's controlling language and found defendant guilty he asks this court not to sweep aside the jury's verdict hook line and sinker an engage in an appellate retrial that is not how the process works there was no prejudicial error here and this court should therefore affirm to address the instructional issues the defendant raises on appeal i think the st point that is critical is one that the court has raised which is that almost all of these claims are reviewed for plain error the only objection the defendant made below was that the subjective intent element of the instruction didn't include the words in context of course that is not what bag to seri and has in the language it has the words in context in the objective element and defense counsel has not raised that argument here today all of the other instructional errors th defendants and now claiming are therefore reviewed for plane are under federal rule of criminal procedure thirty the bad purpose or language or instruction the defendant is now  requesting which of course there was no such instruction proposed below is as judge a critter has pointed out exactly what a threat is the point of the government's case was that you cannot obtain even a  objective by seeking help or by looking for something that is right by making a threat and the reason that is is because a threat was defined as a serious expression of an inten to kill or injure another person so i think that's exactly the point is that the bad purpose is in compas to within the idea that the defendant is making a threat that's also consistent with the supreme court's decision in alatas where the supreme court pointed out that even if somebody thinks that a bank owes them money and they therefore have a rightful claim they can't go rob the bank it is the means by which you attempt to obtain your benign objective order and that makes it criminal and that is what happened here and that is why the defendant was guilty to address the reasonable person language that defense counsel is mentioning now again as judge it could have pointed out back to s the case on eight hundred and seventy nine the statute issue here the only other case that the parties are relying on that decided an eight hundred and seventy nine dollars conviction was gordon neither of those cases indorsed or said that there needs to be the words re cents both parties use that language of the instruction to argue the reasonable person standard the other instructional claims the defendant makes there's no case that requires any separate instruction beyond what was given in fact the bad debts are in language as well as gordon says that because congress construed knowingly and willfully in section eight hundred and seventy nine dollars as requiring proof of  subjective intent to make a threat the jury must find that there was a subjective intent to make that breath so the whole point of the statute is that because it uses the words knowingly and willfully the subjective intent instruction must be  the fence that the district court conducted in the attic were dear regarding law enforcement so i would start with the proposition that this was something that the defendant either waived or been is reviewable only for playing at the defendant asked for one extra what your question that had nothing to do with law enforcement biased and now tries to bootstrap his claim by saying that the government actually requested it and instruction to the testimony of a law enforcement officer wasn't that one that's certainly an issue on appeal it was never an issue below public could you address that absolutely it's my understanding that the court conduct of the board was correct but the court asked the parties do they have additional what are your questions that they would like the court to ask the jurors and defendants one additional question had nothing to do with this kind of was a little bit troubling to me because  government knew that the bulk of the evidence that was going to be present it would be from law enforcement and generally that is a question that's asking if they're if the bulk of the testimony is coming from law enforce is generally that question is asked of the jury pool whether or not they would have a tendency to give more weight to testimony simply because it's coming from law enforcement so i'm curious as to why that why that's not playing  or two to feel to get that ask about that i would say that fairly the district court did ask that question she introduced these two witnesses the only two witnesses as law enforcement agents or in the case ms boyles a law enforcement employee and then specifically asked jurors multiple times do you understand that you cannot give anyone a leg up or an anchor down based on their profession those questions you certainly those kind of questions suffice to elicit that if anyone had any law enforcement went to the district court also told the person's job doesn't affect their favor of law enforcement witness was struck by agreement of the parties and defendant had multiple peremptory challenges that he never used so had he wanted to strike any a lot any prospective juror who had even express when in a prospective juror indicated any connection to law enforcement even if a prospective juror had just been interviewed by law enforcement in the context of gaining a security clearance or some sort of t s a clearance then the court then ask that prospective juror would that affect your ability to judge the evidence fairly and so i do think the record illuminates that the defendant was able to judge whether any potential jurors might have any bias and then the defendant decided to stick with the jury as selected under those circumstances i don't believe there was plainer to address the sufficiency is here just briefly i think that judge bennett hit the nail on the head which is that this was a theory that the defendant presented to the jury that this was a cry for help and i think judge rawlinson you've been in alumina that point to was this was the defense theory to the jury at trial the jury rejected that very and under this court sufficiency review there has to be at least some deference paid to the jury's verdict or there would have been no point to going through the trial whatsoever so under the sufficiency review and given the statements that were very threatening and that the agents took seriously and that even the district court ended up taking seriously saying that she didn't want this defendant released even prior to the inauguration this court should follow find that the thank you your honor is one point on the st amendment issue and then if hopefully i can just touch on for dear briefly we're not this court does not need to sweep aside some jury verdict here the problem is the jury never rendered opinion on whether wallenstein had a bad or unlawful purpose moreover under this court's precedent the court takes it in noval review of the constitutional question of whether there was a true threat and does so of course keeping in mind that this is a statute that criminalizes pure speech and the supreme court has said over and over that pure speech is is constitutionally protected except in very narrow limited well defined circumstance told someone will contact you tomorrow and he gets off the line thinking great help is being provided that person comes and asks him questions mr wallenstein doesn't open the door and say i'm threatening to do this and on this is how i'm going to do it he says great you're here to help me how can i answer your questions in egypt bumgarner or asks him tell me more how are you planning to do this and he says i don't know i'm not there yet maybe a sniper rifle or a bomb i'm not sure so i think this court cases are very clear we have to look at the full context the context of him calling a hotline where one tries to stop a crime from happening the context of him asking for help and keep doing that all with the amount in mind the doctrine of constitutional avoidance and the fact that the st amendment protects speech that has some value societal value and this is precisely what we'd want someone to do call and ask for help in these circumstances does the court wish me to address our dear i do see him over my time  thank you your honor i will be brief st of all this issue was preserved in issues preserved when it's brought to the courts trial court's attention the government submitted the precise question we say should have been asked and at the hearing preached at the pretrial hearing before our dear the defense said we agree with it or the government's questions we have one to add so this is preserved but even on plain error this court said in durban when important law enforcement testimony is expected i expected the court must inquire as to law enforcement bias here the only testimony that was expected from the government was to law enforcement officers yet not a single inquiry was made and in the country castro case that was explored explicitly anyone who expressed a bias in terms of law enforcement was eliminated from the jury pool and i would i would disagree with that characterization of the record through this in the fax section of our brief all had significant ties to law enforcement family law enforcement some volunteered themselves in law enforcement at the l a p d these are the sheriff's one had interned for the d a s office all of these people put