causation to criminalize it as a five year old attempting to impersonate a police officer no federal statute that criminalizes false speech goes this far now the first amendment issue and the st tory interpretation issue are intertwined the first amendment says the search you can't mean the what the district court interpreted it to mean statutory interpretation then says that the best way to interpret the statute to avoid the was charged with has none of those three i want to address each of those three issues in turn starting with and it's important to start with the fact that the government actually concedes that the district court erred in declining to give a knowing instruction to the jury the disagreement here is that the government doesn't agree that knowing also includes an intent without an intent to deceive however the statu is all this position also contradicts every federal court's alvarez to address a first amendment challenge to an impersonation statute or a related statute let me ask you about that are there other such challenges similar to this or is this the to do the fourth circuit has in a person nation piece it's actually a state impersonation case rather than a federal impersonation case but they still apply alvarez and also include an intent to since then so there still aren't points especially given the conduct that issue in this case and bearing cases again it's both the ninth and fourth circuit for some reason and they both also interpret the statutes to require an intent to excuse me again with your new trial was that he had tried to explain himself as a fugitive recovery agent and did so in terms of what is in terms of being a u s marshal and did so in such a confusing manner that  effect the officers believed he was a u s marshal based on the words they use it's worth even looking at the words he used at trial to explain what is a fugitive recovery act and how confusing his explanation was just to give us an example  we introduced a few mr bone and introduced into evidence his fugitive enforcement id card and was asked to explain to the jury what does the back of the card need he said that it and i'm quoting is that it sets out here for the quote the laws that allow us to pursue fugitives that the u s marshals jobs are that's not really clear exactly what that means but it is the case that one could interpret that statement to mean he's a claim of being a u s marshal even though that's not at all what mr bowen intended to convey in fact he was trying to explain to the jury in that little moment how he's not like a u s marshal so certainly just essentially mistake miscommunication was a theory at trial but there's also just the question of was mr brown and the jury think that mr boehner was being a blowhard this was an instruction excuse me this is something that came up comes up in rippy and it also comes up in the cases basis as well even though that would be improper had the jury been properly instructed about him coming back inside the theater and saying to the other patrons look  doubt is there a reasonable doubt viewing the record as a whole and it's just not clear maybe that was what the jury convicted him on maybe they convicted him on what happened out in the hallway for what happened in the theater it could well be that the jury thought that that didn't rise to the level of an impersonation that it didn't actually involve an assertion of authority he was just blowing off steam that it didn't cause anyone to change their behavior the testimony from mr office was that he stayed in the acted accidentally or portrayed sees me accidentally impersonated a police officer by creating the impression without intending to you that he was a u s marshal and that's via his explanation of the badge and g that he was carrying as part of being a fugitive recovery agents which the officers appear to have interpreted as him being a law enforcement officer he understood that he everything he was doing was trying to convey that he was not a law enforcement officer he just did that very very badly and often the jury could have concluded that the statute prohibits essentially coming off as a u s marshal regardless of whether one intended or trade oneself as a u s marshal i should also add as harmless error that the jury could well have credited mr bowen is testimony that he did not intend to portray himself as a u s marshal he did not intend to deceive anyone and he certainly wasn't trying to get out of some kind of trouble as far as he on to a search of the already or has further questions about intent so after acting under authority there is really a strong textual hook for this requirement the statute requires impersonating a federal agent previous clause into the second class there's also strong case law support for this requirement rippy interprets acting under the authority the same way that we're proposing that it should be interpreted and ruby also incorporates the acting under the authority language from the first part of the statute into the demands requirement in the second part of the statute repeated demands upon castell really is absolutely to me and spontaneous but the watch applies to the act as well and that's no other circuits have interpreted firearm to get out of trouble but they never had to prove that to the jury there's ample evidence to believe that mr bowen and genuinely believed he was not in trouble and therefore he wouldn't have asserted his any authority all we're asking on this issue is that this court say that interpret the statute to require a jury instruction about assertion of authority and that the government be required to prove that if it is indeed the government's theory i'm going to have to trial errors given the amount of time that i have l of illinois executive committee we learned of it on saturday which i understand is the same day the decision was made the saturday before the monday trial that that's part of i think why this case really was unique it was a legally and factually rich case that was reassigned to a visiting judge from out of circuit the saturday before the monday trial the resulting trial was really a perfect storm of error there were two critical trial lawyers that i want to focus on that's the badges and the text messages and together they fundamentally transform the trial now the dissenting judges only words show and abuse of discretion in allowing the government to show the badges and other items that the other act evidence to the a quote i have overruled the objection basically because i don't know what we're looking at that the judge overruled the objection to the evidence because he didn't know what the evidence was now the government offers post talk justifications in its briefing for why the judge lawfully could do that they're wrong and i'm going to address that in a minute but i want to just note that there alternately irrelevant because the district judge who were asked to determine whether he  who testified differently as a basis for introducing a prior consistent statement you need some kind of a claim that the witnesses change their story disagreement isn't enough and the government offers no case law supporting the proposition that mere disagreement is enough and it would actually create a circuit split to hold that mere disagreement is enough to introduce a prior consistent statement and there's really a logic underneath that if di enough then prior statements would become the rule not the exception maybe of making prior statements any time to witnesses disagree with each other on a fact that's important to the to the to the jury's verdict essentially any time there my briefing but the words are something to the effect of n p r charged impeachment excuse me scuse me a charge of recent fabrication is a subset of impeachment for credibility if mere impeachment were enough we really would just be using prior consistency and all the time it would transform the way that a trial works the supreme court and united states versus toe may were actually focus was on this particular danger that even with the prior consistent statement rule trials are supposed to be about the testimony that happens in the court room not who has more prior concerns statements now the introduction of the badges and the text messages was not harmless to fundamentally transform the trial for the text messages it summarize the government's entire case for the jury and there's a first circuit case that's especially helpful on this particular issue united states versus  citation is there but in addition to that the text messages were the only written corroboration of the government's case otherwise the case amounted to a number of eyewitnesses disputing what happened in the theater with characterized mr bonin as drunk and threatening neither of which were things that mr had testified to earlier both of which were of course extremely prejudicial especially the threatening point when we're talking about a gun in a theater here we're talking about law enforcement someone dressed up for halloween purina candy bag is not going to be found or charged with having acted in a manner consistent with federal law enforcement someone acting on a stage is not acting in a manner consistent with being a federal law enforcement officer nor as a child with a fake badge or a fake gun however someone who puts on a law enforcement tactical that is that the f b i on the back puts a gun in their hand and a badge or on their neck and walks around in public or walks into a school ground they are acting in a manner consistent with being federal law enforcement officer because they're projecting federal authority they're doing something that only law enforcement can do and it is that part of the instruction that separates what might be protected speech or  or the kind of conduct that you would want to see prosecuted and what separates that from the kind of conduct we're dealing with here so i don't think there's any danger that in fact this statute could be applied you don't need to violate the statute all the example  you could have the example of someone driving down the highway with flashing lights on their car a badge emblem on the side of the car they're acting in a manner consistent with a police officer they don't have to say a word at all in order to do that here cases of this court was properly the jury was properly instructed to what that means and was instructed such a way that protected conduct would not be implicated squarely implied that all of the testimony that mr elphick and every material respect was false he didn't express they say that but on every single point that matter whether the defendant said he was a u s marshal honor i don't have any further information that's in the record and my recollection sitting here today and again i politics is not reflecting the record is that the judge was here visiting and it may have been the case that whatever cases originally signed it facts and i do take issue with the characterization that it was a legally and actually rich case this is a pretty simple case involving three witnesses describing what was ten minutes of interaction with the defendant in one night in a movie theater so limited number of a very limited factual universe and despite all the briefing that's been filed in this case a relatively discrete legal issue as to whether or not the defendant falsely impersonated u s marshals so i think the judge was more than capable coming on to the the discussing the charges the district court had crafted its own instruction and the government at that time did not notice that no one had dropped out of the instruction and the government missed that it's an error the statute should have at minimum  laboring under some state that he had federal authority it was a federal law enforcement officer he's claiming the other people were mistaken not that he was so i think that the theory at trial was not inconsistent with that and so i think that said they were not instructed on the knowing that there was harmless in this instance united states appeared on the act and in his testimony the defendant tried to distance himself from that i didn't put those words on there i didn't design that clearly implying to the jury that to the extent the words united states or an appearing on the materials in session that that's not something he had anything to do with it and it wasn't his intent to me also express that he never intended anyone to think that would never want anyone to think that he was a u s marshal at that point we believe it was proper impeachment to mention him to point out to the jury through cross examination confronted him with these other items that he had that for example included a hatchet with an almost exact replica of the u s marshal's emblem on it with the mo any thought that that was improper was excessive that the government did not mention that cross examination that part of the cross examination in this closing or its rebuttal did not emphasize that with the jury also the judge gave a limiting instruction to the defense request that they're not to consider that it isn't in judge was assigned to a short civil case that settled on the friday before the monday trial and then he was reassigned to the saturday before the monday trial so in this particular case he certainly wasn't preparing without me knowing about it without the government knowing about it or leave were informed of the reassignment the earliest possible date that he could have known of the reassignment was a day that the party settled the case which was friday before the monday trial and then the case was reassigned that saturday and asked me to stay in and said he reviewed the record are familiar with it was with the ruling or the facts i didn't see where the district judge said that i don't i don't believe he didn't say that i wan specifically address the point about on the cross mr bone and saying that he was never a u s marshal the government repeatedly relies on that but that's a statement the government elicited in its cross examination that was in a statement by mr bonin on direct attack on direct examination that matters because under the collateral evidence rule those kinds of statements can't be in peace with collateral european pieces with with extrinsic evidence which was exactly what the government did with the badges and the social media