are to the proceedings before you today of course the judge found at page two eleven of the trial transcript that he found that the order by the ranger to my client to go back to his car was lawful he found that for two reasons first he said because there was cars whizzing by and was a danger to you then that in this case and also because he did not respond to his or her original request to do so it turned into a direction and finally a demand to return to the car and the judge found under the law that was lawful so that is no longer an issue before the court today it was the major issue at that time because that case was held almost a year before the williams case came down the ninth circuit that found that or not officer does have the right to all order eight traffic passenger back inside the car talk about the minimal  discretion to the person a minimum impact the judge also found most importantly at page two eleven of his of the trial transcript that in fact dr lynn was suffering from an asthma attack at the time th he found that he had an asthma attack in the car that he unsuccessfully tried to use his inhaler inside the car to page to eleven and he was also under mental and physical distress from that attack when he got out of the car and that is an extremely important finding by the trial judge a finding of fact in this case now the judge also said that this is the case of credibility and i believe the ranger you're under stress etc and what is the significance of that funny by the judge are just a very few areas of conflict between my client and officer arranger greco and as we'll see that none of those even taking ranger greco side is dispositive the issue of necessity the first one to take my my medicine so there was a conflict there but again if you find a major greco favor as a judge that credibility in his favor all that shows is a reason to find the order lawful the second prong that is his noncompliance with the order led to a second reason why he had a right to order him back to the car has got nothing to do with the issue of the sense that the second conflict which is more interesting one again has no real issue on the question of the sestak he is that ranger greco testified that my client came towards him that he ranger greco pulled out his pepper spray pointed at my client and that my client then reached into his pocket pulled out a cylindrical object and said oh you have one of those i have one of these and started shaking the object my client said no i had the inhaler in my hand from the beginning when i got out of the approaching the officer who testified at the trial that he tried to tell the officer he was having an asthma attack it's in the transcript more importantly off granger harrison testified at age eighty six of the transcript of the as a witness and he testified that when he got to the scene officer records told him the same thing that my client said that the suspect my client was approaching him with this lethal object and that is that the the defendant prove that he was faced with a choice of two evil and chose the lesser evil right two evils here was to return to the car or not so well the evil even he reckless testimony that my client didn't pull out is his inhaler right and until after director was pointed at him it still has no significance on the issue of necessity the amazing testimony of record was when i and doesn't pull his weapon to the things the other person going for a pepper spray when he had nothing at that point i mean it was totally incredible testimony but again if it's in the benefit of the back of the doubt it has nothing to do with the issue of necessity i just on this record based on what in the record i have some of the same question that judge nothing does which is in i don't understand the relevance of walking away from the car for seventy five feet which is what the testimony was as opposed to you know turn waving turning around a walking back towards the car if you were standing next to the car and said you know sitting down is really hard on me i'd have a lot better understanding of the necessity to fans but walking away from the car  walking back towards my car i just don't understand how that is you know itself necessary part that my client testified that and there's two reasons why he didn't wanna go back inside the car the most important reason ninety percent of it was claim at the time and remember even the judge said he was under physical and emotional stress at this time is like in a money monday morning quarterback and strange thought absolutely clearly he felt that walking around getting the fresh air was glad to answer them the first prong requires that there's two evils and choose the lesser evil obviously the first evil is to is violate in the order not to be in the order of an officer on a scale of one to ten terms of aggravation ra block the fire engine he says i got it you know and doesn't and doesn't move it at the depth of the very low evil on a scale of one to ten and that's important what are the evils that he was trying to avoid he was trying to evils to harms one the president's attack he was having at that time the president symptoms of having an asthma attack that did judge ruled as a matter of fact occurred he was distressed he was having an attack it was harmful at that time plus the possibility of a much more aggravated situation where he where the with a systems exacerbated into a much more serious attack and he's testified he's actually been hospitalized in the past and death can occur from that so those two harms here he was presently stuffings from asthma attack the judge ruled so and i suggest when you weigh those two clearly the evil he was trying to avoid is present symptoms and the possibility of much more serious problems outweighs the evil of simply not of being a in order to get back in the car when there was no real danger anybody by him being out of the car the second pro and to get fresh air no wenger seemed to suggest that there was no imminent danger because it was only a possibility but he forgets number one is there was immediate danger because our harm because he was still in the effects right then and there in the very beginning of an asthma attack and that is our he was suffering from that had yet exacerbated to a more serious harm but there was definite harm right there and again that was  potential for to become very serious he hadn't taken a drag of the inhalation inside the car as the judge found based on his testimony in his findings that did not work and that made dr lynn more concerned because when the first time the medicine doesn't work that can lead more likely to in a worse condition and if it works the first time so clearly there was imminent harm here twice that the present conditions he was feeling right then and the possibility of much more severe harm if in fact it got exacerbated judge langar said it page twenty eight of his decision lyn's behavior is totally inconsistent with that of a person experiencing a breathing emergency he's forgetting that the trial judge already found as a matter of fact the law in this case that he was having an asthma attack at that time response to a question by me which combine the question and the officers later who questioned him at a later time after he had taken his medicine describing that at that time later on when he taken the medicine at that important time he was feeling better and if you look carefully at page one seventy four and one seventy five the be very obvious that that question was a and three a compound question mainly talking about later on in the situation not earlier when this alleged crime took place with the third prong is not even it in contention no one is contending that the third factor that he believed that his conduct from had a causal relationship to what we were trying to avoid that's pretty clear that he believed that going back to the car would cause relationship to the harm he's trying to avoid that is a more severe attack and getting over the attack he was having at that time the last prong that there was no other legal alternative to violating the law and you have to use some kind of common sense to look at this we have one statute the cover conceivably millions of scenarios where this law might apply so we have to use some common sense again we're not monday morning quarterbacks we have to look at this situation dr len found himself in the stuff we're in physically emotionally at the time of the as a judge so found and what judge wagner said at page twenty six lines fifteen to eighteen of his decision he says well dr lynn should have standing on behalf of the united states one of the central issues in this case that was argued in the brief was the issue of whether specific intent applies to the particular statute or c f r in question second issue which is staggering is the necessity but before i begin and the necessity analysis since that's what we've been talking about this morning i'd like to point out that the issue of the sufficiency of the evidence as to as to the charge was not stuff but you have to look at it in the context of the seventy national park where there are hundreds of codes of federal violations filed for various things including improper food storage and you may ask why are we here on improper food storage these were promulgated by the secretary of interior that are important for management and ministration of the national parks the government sometimes chooses to not bring cases we cannot look at it in this starlin vironment of a court of appeal to say well why here when we have these people out here doing these things because the local government and the local police and everything we are because it's exclusive jurisdiction there is no other no other means by which a case can be brought its exclusive jurisdiction within many itself so that's why this case is brought in there are many other cases that are brought that would even be lesser of an extent but this case is extremely important in terms of management and law enforcement the issue is if the court find that the defendant is not guilty of the fans then that then they are acquitted they are entitled to day in court and this defendant did receive his day in court so i think you have to look at the facts as what occurred in this case as true and those facts are that the defendant moved towards the officer the defendant said i don't have to comply with the order the defendant according to testimony the ranger said that they never said i'm having an asthma attack there is nothing there is nothing to suggest why the rangers that that's what the defendant was conveying there is nothing in the trial memorandum that sets forth in this defense a necessity there is nothing in the opening statement that sets forth the defense of necessity and there is nothing in the end other but i think that again looking at that by itself i think you have to look at that i don't have to comply i'm moving forward it's in the evening it's dark this officer doesn't know anything about what's occurring here you have to look at it in the full picture if you would if you just said that outside of the context that would be that would be a lot that would be i wouldn't you know it wouldn't be something that i would say i want to take a look at but you have to look at in the entire context of this individual going on saying sir move to the car these rangers and is the record shows these rangers are e m t trained these people save thousands of people every year they know how to deal that they're not going to be calling people out to the scene if an individual is having an asthma attack this happens all the time where defendants are drunk there may be charged but they're still being serviced by these law enforcement officers there's two prongs to what they do that's where the necessity defense in looking at those facts that's where the necessity offense fails and the defendant failed to meet his burden in this case it differently there the defendant testified on cross examination that he did not have a serious a real serious serious or real real serious situation that's not the same thing as imminent attack that we're describing here that they're describing here for you today and that's set forth in our brief that the defendant on cross said these things that's not to suggest that he had a choice and he chose the lesser of the two evils that's not defense i'd like to address very briefly the issue of the specific intent because that is something that the defendant does focus on in the briefs and while that was not a discussion today in that the specific content for the crime here was a defendant says i don't have to now i'm not arguing that the order was lawful we have to get into that but there is a roundabout way of doing it by saying you have to have a specific intent in other words i have to know that the this regulation is intended to protect it's intended to protect law enforcement officers during the course of law enforcement actions emergency actions in to deal with their duties in terms of you know move here do this except for a you cannot in any situation explain or any defendant unless they're an absolute if they're criminal defense lawyer they're a prosecutor would know what the parameters of the fourth amendment did he have to intend he i think it's a general intent crime i don't think that there's no i'm not saying that's a strict liability i think that he had to have heard the order and understood the order and failed to comply that's a knowingly requirement that's the mens rea that is associated with that and that's different than the a two point three to a one which says with the intent to interfere in intentionally interfering that's what that's us and that's a different analysis then a two which has no requirement of an intent to disobey not everything that's set forth in a in a regulation except iraq requires a man's right to be up to that action and the government is contending it is and knowingly requirement with regard to this thing that he didn't have to intend to prevent the officer from doing his absurd result and that's not what we're arguing we do have to understand and i think the evidence is clear that mr lindh did here did hear that the order and refused to get back in and that's simply what it came to he was shaking his finger saying i don't have to comply again it's not consistent with the necessity defense and even if somehow you apply some sort of specific intent analysis it's clear that he was affirmative in his actions in saying i don't have to comply i think that is even even a higher form but it's clearly meets the knowing standard for the sufficiency evidence and that's that's the analysis that the defense raises in terms of their service to the evidence that evidence is insufficient when you apply the specific intent aspect and i think that's absolutely correct i think that the issue of necessity is kind of where we've been centering it again again today and i submit to the court that the court we have set forth in our brief ad nauseum as to the basis by which this is not going through the the test except for a it's where that is and i think the record is absolutely clear that this defendant that was not their contention that was their contention of necessity at any point in time where the court was on any form of notice that this was what it was about the fact that the judge that the that the trial judge says that this is an asthma attack does not equate to some sort of immediate danger the hundreds of thousands of people have asthma that is not the basis by which asthma attack therefore necessity because then you'd be deciding as a matter of law that asthma attacks equate to some sort of necessity defen i understand i my job is to defend and the decision but with the c f r as those are bench trials every one of them is a bench trial because they're petty offenses they're not entitled to trial by jury which is another aspect of whether or not we give a higher mental state the defendants to cite some immigration cases those are dealing with the severity of the penalty in terms of been incorporating a mens rea into a fence where it doesn't appear that amends raids this but those cases before this court have said because of the severity of the penalties and think five and twenty years in terms of the severity of the one they were focused on and when was five years that was a result of that penalty and therefore it wasn't appropriate i thank you for your time