of ok the whole matter really was synopsize by the judge of the rule twenty nine a motion when he said that this case turned on the question of intent and the case turned on whether there was mere preparation or a he submitted no intoxication instruction he submitted no abandonment instruction you think you might as part about that i cannot speculate as to what he thought about you know her as a nonbank nine hundred ninety seven case in this correct well that's what i was just going to say is all during the trial people couldn't even agree on what was said before they went what was said after it happened nobody really knew because they couldn't remember so they just gave he was probably intoxicated but everybody was intoxicated consul just didn't want to take a position he had a whole different defense going right his defense was that this g was thinking clearly enough that it walked right up to the walk right up to the edge didn't even complete an attempt didn't even get shown a temp walked up the edge and changed his mind i don't how do you i don't know where you're not having the enough mind to do anything basically with changing your mind make me reason decision i'm not going to do this well we defense counsel actually said was he went out there he had been drinking all night and the bottle around was almost empty and he gets their routine his codefendant through the rock the windows smashed and it's celebrating that it went wait a minute what am i doing i do not think that they were that far away according to the record but i don't know what they agreed to but i thought the government actually the prosecution argued to the jury argued somewhere anyway well  there's no direct evidence of throwing but also the bottle was not just dropped the sidewalk it was on the other side of the bushes and how did he manage to drop it on the other side of the bushes i seem to recall that argument seems strange that the government well actually the first person out there from t j asked to see the bottle said he wasn't worried about it it was about four feet out from the building in the rocks and so he wasn't worried about it that our site is to forty to his testimony and he was the first person to see the bottle and now there's a difference between throwing a bottle and trying to awful lot of strain anyway you really can't abandon and attempt once you take in the final step if you have what you taking the step to make them in an attempt you can't abandon it if you haven't taken that step this is my problem with this i think you're exactly correct and that your honor is that substantial step is a legal concept it is a term of art basically and you're asking the jury w circumstances caused him to fail to complete the attempt you must find the defendant not guilty i think that would have been a great instruction to put in and it could have been made from case law ok i know that it's later thank you  morning gentlemen made please the court counsel and paul police system u s attorney from reno nevada presenting the government's argument in this case and i was the attorney that tried the case that's the first time we've heard what the substantial step towards completion beyond mere preparation and that was that was hit on an argument which granted is not evidence head on during the case the judge instructed him on that so what still near preparation we actually needed the bottle to go through and gentlemen the government just doesn't agree with that they've already gone beyond mere preparation and potro in that rock and then the defendant lighting the fuse that in and of itself is beyond mere preparation if they had not gone beyond mere persian it was still preparation i understand that that wouldn't be a the the evidence the trial was from the position where they were standing on the sidewalk it was landscaping rocks and some bushes it was eleven feet three inches the box the bottle was found approximately three feet from the building and behind t and realize i've gone too far and he dropped the bottle well that just is not what the evidence supporting the only support for that came from counsel's defense counsel's opening and closing arguments that the bottle was dropped came from counsel and that's not evidence and that leads to the voluntary intoxication instruction robert routine routine i was retarded drunk i was intoxicated i came out during this change of play during the trial what routines that was we had been drinking never stand how much they had drank it hallmark's the new owner slamming the speech on able to stand the closest we get is routine describing himself and saying you know when we were helping hallmarks boss move the couch you know we were we knew what we were doing we were able to stand up we were able to accomplish this task of moving the side of the couch without a problem and then the evidence just that itself established established that the defendant had the mental wherewithal one of the government believes that the defense attorney based on the record made a conscious decision he had to have that the voluntary intoxication the instruction ran counter to this abandonment theory where friday's so it's the government's contention that the defense counsel knew of the ninth circuit jury instructions six point eight on voluntary intoxication it's not a novel theory but the so i did know this is not the horse i any evidence of permanent conduct to impairment from drug use that's what he was called in to determine he was not trying to determine how drunk hallmark was the other thing was there is  because voluntary intoxication goes to the attempt element at the end and meant goes to the substantial step element so there are there's no conflict there so i don't see how the