right our fifth case for today now this afternoon is united states against time you present the general question of criminal have two questions for you one of which you concede in your brief is that the government is not required to prove that he either intended or was able to carry out his threats that's par and secondly we have the supreme court's relatively recent decision in the lowness which seems to approve an instruction along the lines of this of the second part of the instruction that you've got you're not complaining complain about part two but it seems that obama's says that that's an appropriate instruction to give in these threat cases in the government says well you know he really thought he was on the verge of you know assassinating the president he would've that we would have charged under different statute well but let me take you to question number one i did concede that they didn't have to show that he was relevant to determine and you know as this court said in part just because they don't have to prove it doesn't mean that it's not relevant those types of facts mean that the circumstances in which the statement is made all of the surrounding circumstances so that's a different ok so it is relevant but i am actually not sure its relevance it helps you the jury obviously this jury may have wondered whether mr dutcher was in full command of his senses which is a different thing that they seem to have said ok travels from tom little cross he has to sling shots he's going around telling everybody who will listen to him that he thinks that the president should be  instruction that was given by the court that other people reasonably would view that's not the language that oh honest use a lot is it doesn't the addition of the word reasonably just he client know because it forces him to judge what other people are thinking of unknown universe of other people isn't that easier to do than than asking them to judge their subjective state of mind hindsight sure that maybe some people would view it that way but the court in a line is said with knowledge that the communication reviewed as a threat that was the alternative there wasn't anything above what other people there wasn't anything about reasonably in the opinion and and you know i obviously didn't do it so do you know this would have been ok if it had just said that he knew other people would view his statement as the truth threat that made the statement anyway no because right i figured you would probably not like it either way well no and here's why a l such manchuria in the statue so the corps in elias was presented with a situation in which silent on the question of  what do we do so i think that's a huge difference here we have knowingly and willfully a want us silence but you know the other thing that i wanted to talk about from and i'm looking at the instructions and selves taking them as a whole which is the way we're supposed to do it it seems to me that the district judge touched on your theories of defense the judge tells the jury if you think this is just idle or careless talk political hyperbole careless then that's not a true threat so the jury knows if they just think this guy says these things to get attention or whatever other reason might and tell you to save them then they have to acquit but they don't they and many goes on explains all of these things what's a true threat what's knowingly mean what's willfully mean very thin needs to willfully is the part that you're talking about the right it's a whole hasn't the judge told the jury what they need to now accurately told them what it was and i don't take issue with that as a matter of fact the initial instruction that was before the employer before the final conference here's here's the dynamic that's going on the cases that have been over the years have service slid back and forth between what the mens rea of for the offense is versus what the definition of true threat question him par which is front and center in their case the court said well in light of you play act and all these other cases perhaps the question is whether a reasonable person under the circumstances would interpret the speaker statement as a threat in other words an object of standard as to the content of the statement and second whether the speaker intended as a threat was some jacked of state of mind for the speaker so the court declined to answer that question but that's the exact position here you better objective as to the content subjective as to his state of right let me just ask you this question with the statements be considered true threats  someone knowing that the individual would not perceive them as a threat yet a reasonable person would have i don't think again i think if i understand your he subjectively intend this as a true threat and with the disjunctive instruction that was given here that did have an impact on his decision whether or not to testify he did not testify in this case of one kid and with a few minutes just think cobalt the cross examination of will other people reasonably   go to the actual jury instruction explain why not only does that comport with the law as but it solves any other issues that exist especially when you interpret as a whole couple of points i'd like to clarify first the court made a comment and  really do need clarify this this was not a slingshot like dennis the menace it was a wrist rocket it's in the record in the court can can view it he had a ball bearings and other things claimed he could take out a man with it so i don't want to minimize that take this into account right and that jury instruction if it is a threaded hole it says one juror has a question and then it's one juror who's saying hey do we can we take into account his juror it just it wasn't there in terms of the instructions really what you have to remember here is that the court went beyond a lot of us by importing three different or four different items into it that i think can assure the court that there is no innocent conduct is being punished here the first one is a that when the court deals with the second part of the disjunctive the court says he knew so that we're not dealing with a reasonable man standard that always relates expression of the intent to do an unlawful act of violence against a particular person so unlawful she has to know that it was an unlawful act to begin with so we know that we're protected because there is true threat when you read the instruction the whole and the instructions there the the third thing that that the court added with to the alatas instruction that it protects the defendant is that they said well even though he he he had as had a serious he knew that other people recently would view the statement as a true threat but he did it anyways lets us know that by doing it anyways we're talking about intentional person will conduct purposeful conduct so that we know that this was not just simply anything other than intentional conduct and finally by the reasonableness contrary to what the defense counsel asserted that does protect him because it narrows the range of people it's no longer just people viewing it as a threat it's it's got to be reasonable people viewing it as a threat such that if you drew the circle of of people that's a smaller group the reasonable time fortunately you're probably right into it but but the critical part is that protects the defendant it makes it harder for the government to meet that part of the burt critical part here is that there is no doubt that the that mr director had to be proved that he did intentional conduct that he knew was unlawful in that second part of the just jumped of sentence so as a result and i won't touch on the sufficiency not necessarily because it's not important it is important i think there's more than sufficient evidence here this is not a place to reweigh the evidence that the that the jury reviewed but simply that he made the statement on facebook made the threat drove the lacrosse reaffirm the threat always reaffirmed the threat made additional threats while in what crossed there was never a point where he says i'm joking oh i'm misunderstood it's always yeah i'm that's i'm here this is the real deal i'm here to do it and then what happens is people lack but it you don't remember correctly that he's taken to the hospital not at the request of the secret service but the police just decide to take him there for a mental that's right under under the state statute that allows that sort of so does that mean the secret service thought this was just so much chatter no i think that the secret service allows  state to take the action and allows that sort of decision to take place because they're not going to frankly drive today and m c c the nearest one being here in chicago and i think that that that really is a perhaps maybe maybe not  the record but i think it's perhaps more of a practical matter of hell things are done up or the part of wisconsin there is a simple fact here that even if even if there was some sort of a or here in the instruction the government truly believes it's harmless at best all the evidence points to mr dutcher making an actual intentional threat against the president there is really nothing more than what you have to read from his own mouth and his actions that day and so the question of whether or not this instruction even if somehow it was an error which the government doesn't believe it was it's a perfectly fine instruction consistent with the law is consistent with the case let's come down to the circuit the question is is there any doubt or is there a risk that somehow again innocent conduct was punished here and the government would submit that it isn't because the evidence is overwhelming that he actually made in one minute to summarize you may do that but i would like to quickly address some of the points question to the court of all various aspects of the case the jury here deliberated almost five hours in a case in which the trial testimony of evidence took about three  second i would be remiss in not mentioning the justices marshall's and douglas is concurrence and rogers of persons us when they see em in the legislative history of eight