firearm conviction this court concluded in the count's case two thousand and six that quote to obtain a conviction under eighteen u s c nine twenty two g the government must prove that the gun satisfied the federal definition of a firearm eighteen u s c section nine twenty one a three defines firearm as quote any weapon including a starter gun which will or is the zine to or may readily be converted to explode project out by the action of an explosive  here there was no evidence presented to the jury about the gun the jury didn't get to see the gun even though the district court judge urged the prosecutor to show on the gun no expert witness was called to testify about the gun nor was cross examination allowed regarding in the gun mr harden didn't even get to define testified in his own defense about the gun so i think it follows as a matter of a law that there was insufficient evidence to prove that the gun was a firearm the district court's  ruling keeping all this evidence out was simple what once was a gun is always a gun but this is an incorrect legal ruling as a matter of law and the davis case this court's case i this court concluded and i think in the davis case this court noted that a question of fact is quote a good whether the gun was damaged in a way that fundamentally altered its original design and that's the key issue here and the davis case  david that it's just a piece of chalk right and that it can't satisfy the definition of the firearm anymore what the government fails to explain is how the defendant gets ever tease out that information for the government because it's their burden to prove this element beyond the reasonable doubt and i think the problem here is it's undisputed that this gun had missing internal parts didn't have a trigger that was working the jury never got to hear that incomplete legal record here not enough i'd say we know that it's missing internal parts there's a document an exhibit to it's in the record i put it in our exhibits that have been since this court but it's not enough well it says where there was an issue about the gun and that child guess what the government did they called an expert witness who will pint it could be repaired within an hour we don't have a similar record here the government could have put that evidence on  dropped it failed to do so and i think that's a fatal flaw here and i think it raises the real specter of here of that this country not be rehabilitated to ever work as a bar and the government can't foreclose that fact here  so i think congress could have define the term farm differently for example the government argues about there's a risk of violent response to a nonfunctioning but that doesn't work here because in that case there were as your case was analyzing an armed robbery statute so i think there's two other red herrings i want to touch on briefly that the government relies on the issue that it's confusing the jury this is not confusing again you can get an nation agreed and even the government has conceded that a piece of junk even if it's designed if it gets run over by a mack truck it no longer is a firearm right i mean i think that would  screen on the statute that it can't bear and that circuit courts throughout the nation had acknowledged that the other issues is the stipulation entered into the parties and that was about interstate commerce i just don't i think that's incorrect i don't think there is any such concession you can go to the stipulation and it says it's a bar it's a gun that was a three eighty right but that's the extent of the concession and that the point of the and enter a judgment of quibble but alternatively at a minimum i think we need to remain in for a new trial because this implicates his core constitutional rights to be found guilty beyond a reasonable doubt testify on his own behalf and especially because of this offer of proof issue he wrote it wanted to put up this witness i'm robert smith to testify as specifically as to what was wrong with the gun and i think that's really problematic because there's no rule that as you have to make an offer prove prior to trial that's just not support of the government doesn't argue that i'd like to turn briefly because i don't have much time to issue found to be bond and quote i think that's dispositive the issue if it's not clear we need to send it back and notably one of his convictions was for burglary which of course this court is reconsidering whether or not is a violent felony case the problem is is that mr goldberg apparently has the same failure that their trial counsel had which is the inability to understand the distinction between ababil the and how it was made a factor those are two distinct differences in the counts case this court made it very clear that judge guy tons ruling that the evidence of the firearm being irrelevant to determine whether the weapon was a firearm was a mistake the court this court ruled that but what this court then said was the reason that was a mistake is because of the fact that the issue of our ability and how it's manufactured are two separate things the ruling in this case was that you are not going to talk about o y because operability by this court's longstanding rules is not relevant to the issue of felon in possession of firearms what the defense continues to fail to do is distinguish between that issue and the as manufacturing issue i will concede openly mr goldberg that the record is confusing as to whether or not trial counsel ever actually conceded that the gun was manufactured as designed there's about four or five references in the trial transcript which is only like one hundred fifteen pages where that issue comes up and it is hard to say in complete fairness whether or not that was ever conceded but what is not in doubt is that as in the count's case there was never an effort to present to the court or the jury evidence that the gun was not manufactured to expel a projectile by means of explosives there was absolutely an effort to argue operability but that was shut down by the district court because of the fact the rules and the law is very clear on o of firearms but contrary to what the diff it what the appellate is now trying to say which is that this stipulation was only for the purpose of where the gun was manufactured the that maybe that may be in fact what the intent might have been but the evidence was in front of the jury that the firearm was manufactured that it was manufactured as a firearm it's very clear in that stipulation that it was a fire  oh i see your point hit on all you're correct but there was nothing like that in this case that it was fundamentally alter but that's not what they offered to what they're not what they tried to do what they tried to do was put on evidence that it was in operable they did that they want to do it through the defendant for the defendant say hey i thought it was ok to possess is a convicted felon because it didn't operate they wanted put on a witness from the crime lab to say i hate this gun doesn't operate they never offered to or wanted to put on or there's never any evidence submitted about the fact that this gun was not manufactured as it was designed to be that but the distinction in counts is that those are two separate issues the difference between op building versus as manufacturing and the case law out of this circuit is very clear also that the that those decisions i don't dispute judge that if you if you had evidence and you propose that evidence is either offer proof or as a witness that the gun had been changed from its style from how it was manufactured that would be admissible i don't dispute that but that's not the situation here that because they said what they were going to testify to and what they were going to testify do they have of the five o two is an actual report and the record i was there and the record is very clear and my recollection is very clear along with what the record says which is that he was going to testify that the gun was not counts is the is the similar case on this particular issue because it's it is right on point with the exact facts in this case where you have a judge ruling that operability is not going to be talked about the the  statement of the court was what the court took issue with with the court still appeal the ruling because the court made the distinction between the as manufactured versus the op bill the issue because of the fact judge you can have a firearm tha manufactured his firearm has now been converted into something that's not a fire that happens i guess that would happen i mean think sample of a mr go board which came out of one of these cases was i think one one of the judges and out member who was proposed that if you had a gun that had been turned into a light that would be an example where the gun was no longer the in the style of what it was manufactured for which was to expel a project i don't know judge i don't know the answer to that so the other issue judge is judges are is the fact of the the the arm the arm career criminal act and with respect to that judge  the speaking of red herrings i think it was a statement they got thrown out is the a c c a with respect to robbery first there was a there was a conviction for robbery first and in conjunction with that there was also a conviction for burglary and also a conviction for saw along with the sodomy conviction was a conviction for a the missouri version of with a weapon and the criminal act and the confusion at the sentencing was the fact that contrary to the opening brief of the defense there is no issue in the in the record that indicates the judge based his ruling on that felony  there there are two criminal act that's that we believe it does candidly judge that issue about the whether or not the old the archaic robbery one still fits that is a right or at i'm sorry i thought i answered that my point was trying to answer that what my answer is yes i believe it does judge i apologize if i didn't answer the question i believe it does m point was in one times about to run my point that i apparently sidetracked on was the fact that when you when you look at those decisions i believe our brief has laid out a step by step process to how to get to first the sodomy and the birth i recognize the burglaries at an issue currently judge because that's on a i think it's on bank on bok situation you're correct we're at there's no dispute very clearly judge that's actually flint ok i'm sorry unfortunately i have to agree with that that is absolutely true and the reason why is that while there is some dispute between the parties about whether there was a discussion about the the the missouri criminal action statute that were on the sodomy the reason that's not the reason that's a red herring is because that statute sucks out only the separate judge i don't know if there if there was a change or not what i do know is that the eight circuit law for as long as back is i've gone and i think it's into the early nineties have said  not an issue i will say this in missouri although i'm not a missouri lawyer in missouri is my understanding that when they file a firearm charge they do have to prove off the building here and the core issue and the government's in the way it's that we misrepresent their position which is quote the breed page twenty two if it were a heap of twisted metal barely recognizable as having once been a god no longer useful for any purpose even have been different but that's not the case here problem is we don't know what the case is here because we didn't get to put on our opera proof the government also doesn't touch on the davis case  i don't think so i don't think it's clear on the record i think it's what would have been clear here i think there is a suggestion but i think the whole point of offer proof obviously is to be able to get into those details and because the records incomplete here it's really problematic to just presume especially when there is no  just because it violates his fundamental rights he didn't get to testify about the nature of the gun he didn't get to cross examine the witnesses about the gun he didn't get proven beyond a reasonable doubt