born in your honor they would leave party to representing appellant jeffrey hoagland and i speaking in my fourth if you keep your voice will be appreciated thank you i will mr hogan was convicted of the use of a destructive device during a crime of violence based on a brief glimpse by a single individual i mean a round green and probably not certainly but probably metallic object this witness was a non expert no item was ever recovered no expert testimony was presented you left out one fact she called it a hand grenade she called it a hand grenade but there was no evidence that she had any basis for reaching that conclusion  handgun no but the whether it is a hand grenade or not is an element of the crime that wasn't very entitled to bully the only evidence on what it was if we were talking trial if we were talking about a handgun a firearm in that sense i would completely agree with your honor but the section of the statute that deals with destructive devices uses a very specific use very specific language and the case law interpreted in that language is very specific and that is why i cited the court not only to several the several decisions contained in my opening brief certainly i think very least imply that the device in question must be capable at the very minimum of an explosion it must be an explosive or incendiary device but all that's true that's true bang grenade isn't it that's true of a hand grenade if it indeed is a hand grenade  but the only evidence here appears to be that she testified it was that it was a grenade and they made a perfectly legitimate tactical reasons for the defense not a probe that very much but it didn't and so that that's something the jury's entitled to rely upon i would say that the characterization of a device viewed for perhaps no more than a second or two in the middle of a robbery by a non expert witness when there is no further evidence is unique in the case law and is not sufficient to meet the very specific requirements of the definitional section of a destructive device the lanigan case makes it very clear that it must speak at the very minimum capable of explosion all of the cases on the pack cited by either side that deal with destructive devices are cases in which there was some evidence that the item had the ability of not only exploding but of causing the requisite level of damage or meeting the other requirements of the statute it might not necessarily require expert testimony had there been a statement from the defendant for example that yes this was a government could have proven that that this was a destructive device why isn't it sufficient that he displayed it in a in a threatening way because intent is not neither required nor is it sufficient to prove a destructive device there is case law that indicates that it's intent in a close case if you have a device that may or may not be used as a weapon the intent may be relevant at least on subsection i is a destructive device for that reason or it's not the intent to use it is not sufficient the firearm cases cited by the government deal with with guns guns are much more common much more commonplace item in our society people can identify those so they've cited you to the jones case and the harris case which discussed circumstances where where victims or witnesses  had a view of a weapon that was never recovered clearly with no requirement of operability for that type of a firearm that that was sufficient but there is no case that i that i think either side  s first of all the penalties are much more severe for destructive device a second the statutory language is is very different there is a particular exception built into the statute for non weapon  devices there is a very there is language in the statute that is far more specific that does not include the the language in the general firearms definitional statute that talks about the frame or there were seaver of a to you that this device had to have been shown to have been at the minimum capable of explosion and merely a statement from awake and not an expert witness who viewed it for the briefest of instants instances and could only describe it as a round green probably metallic object does not meet that level it is an anomaly it seems to me at the very least to have cases in which the destructive capability of devices that in some cases were capable of maiming or killing that is found to be insufficient to meet this definitional statute and therefore constitute a violation of the that may or may not have been the nine is found to subject another defended mr hogan to that same thirty year penalty let's assume for the sake of discussion it was a real grenade and then the grenade is not recovered whose gurdon is it to negate that it's a real grenade if someone says i saw a grenade i know a grenade look like i was in the army and i know what a hand grenade looks like and it was a real grenade but the grenade is not recovered or taken the next step and you now have a situation in which someone with a little more of an opportunity to view the unrecovered object says it looks like a grenade that may carry a little more w towers opinion but i think you still have the burden of proof still rests with the government because the statute still requires that it be capable of explode was you're saying is they always have to recover the object  no i was suggesting some other ways for example if the item actually does explode obviously they don't have to recover it then you know you've got that fact if the defendant makes a statement as a indicated earlier then that would be one way of the stop pushing it or if the item is recovered then probably through expert testimony it can be determined that if it's not recovered and somebody says it was a grenade i think part of should it be to say well it was really a toy or a cigarette lighter because it's an element of the crime i believe it is the government's burden even in that circumstance which is a step beyond this case did you want to reserve some time i did i would like to make a brief comment on issue two and that is that even if the even if the evidence was deficient there was no instruction given and since this was an element of the crime that instruction needed to be given so the jury could have had a legal as well as a factual basis to make a determination of whether it was or was not instructed as to that point was there an argument to the jury that the item may have been a toy or there was an argument consider cock there was an argument one well as a practical matter he is serving a state court sentence that is true but it might or it might not make a difference consequence not that i'm aware of but i'm not really sure what the status of that sentence is but it certainly would reduce his federal court sentence or could potentially reduce that if you made a limited greenland on the single count that was a forty five month sentence consecutive to three hundred sixty one sems in the federal situation where the grenade or the weapon whatever it would be when it was not recovered and whose burden would it be and the answer was that it would still be the government's burden and that is simply not the case and that goes to the second issue that the defendant raises here today because that the request a jury instruction by the defendant i'm sorry it was not requested it's being reviewed for plain error what the defendant now believes the instruction that should have been given and was not given as to what a destructive device is not clearly is an exception underneath the state under the statute and the case law even cited by the defendant to holds that that's an exception and that's an affirmative defense there has to be the burden is on the defendant to produce some decision and it clearly says that where there is an exception in the statute the same exact exception was applicable in that case it is up to the defendant to present some evidence and then it's an affirmative defense which the government has to just prove beyond a reasonable doubt and following up also on the court's question as to a grenade whether it's a toy and it's the same thing that would have to be that would be a situation where the got the defendant would have to present some sort of evidence that it was a toy that it was a for some sophisticated facsimile and then if that is the case if that ever meet evidence does come before the court and the government would have to disprove if you had a reasonable doubt it is an affirmative defense and specifically i fi a firearm or an explosive was recovered the jones case was a case where it was not recovered and in x case there were three witnesses who testified that jones the defendant met case who was committing an armed bank robbery a sole evidence which three witnesses had he had a gun which was described as being silver with a white handle and the second circuit found that that was a sufficient evidence to sustain the bank robbery at the one twenty four conviction they did not at any time they specifically said if you mean he specifically said that it is not the burden of the government to disprove every possibility that the thing they have been a sophisticated toity or a sophisticated facsimile with respect to the  something that is within a layman's purview just like a firearm or something along those lines to say that it was a hand grenade she specifically described it as a hand grenade she described that he came up to her teller window and she even described what it looked like that it was round it was green it had a handle on it and that it was metal not probably metal the exact language that she was used was asked a question by the prosecutor if you look like it was plastic or metal  was it looked like it was metal that does not mean that it was probably metal and means that it was metal she did not hear it drop on the floor so she could not say that it sounded like it was metal she could not she did i feel it was you can i say touch like metal it felt like metal what her words were it looked like metal and based on the rule that this court has to evaluate the evidence in the light most favorable to sustaining the jury's verdict we have to assume that that wasn't metal object she described it as a hand grenade it was round it was green it was metal and it had a little handle on it and he clutched it and as far as whether or not it was a brief glimpse or not there's nothing in the record to indicate exactly how long she s but she did testify that she saw mr hoagland come up to the window where she was a bank teller pulled it out of his pocket or waist area held it up and at that point she was able to get a good description of it certainly good enough to describe that it was a hand grenade round as to recognize that she was not that was not brought up that was not she was there was only one question on cross examination and that had to do with whether the video surveillance had blocked her view of  it but she was not cross examined at all she was not not even touched on this question as to whether or not she had any sort of expertise so we have to assume that she knew the hand grenade was a hand grenade so and also suppose the robber had come in and hell of a box and said inside this and got a bomb everything else is just the same she doesn't see anything other than a box but she testifies inside this box has a bomb i get the same result could he be convicted for further instruction device no i think that would be a clearly different circumstance because she did not actually see the object itself she saw this is in a grenade and remember under the statute she described  grenade but quite frankly i don't think i've ever seen a real grenade i'm confident what i've seen i've seen things were pretty train is grenades but they were all dummies de charged whatever the appropriate term would be and i think it's pretty likely the explain under the statute statute first all destructive devices would be firearms by definition under the statute then it goes on to say what a destructive devices and it specifically mentions grenada no congress did not define that any further as they did if you compare that with rockets and missiles where they said that there has to be a certain amount of propellant or explosive they just said a grenade so certainly i would think that it would be within certainly congress included that a layman could determine that that object is a a grenade just by observing it just as you can a firearm that is within a layman's purview to be able to make that determination as far as something that's in a box that you're taking another layer with a person doesn't even see the explosive and maybe is represented by the person's words or actions else was not a box full of something that looks like what you see in t v shows with a clock attached and some red tubes and some wires and so forth of course again the witness would have no when if it were just out somewhere in the middle of the street and just came back and said oh i think that's a bomb i see some wires or something but the context is very important i just i mean it's your eyes on halloween and kids going door to door but the cases do make distinctions with regard to real guns and twenty guns even in the context of a bank robbery and so what i'm probing for here is recognizing that this statute is and it's something that's real that can shoot that can blow up really to say whether it can blow up well she did say well she did say that it was a grenade and that's all that is required under the statute whether or not it's a sophisticated twenty whether or not it was a hollowed out and could readily be made into some sort of explosive device i don't think is the point of this case she did say the evidence is absolutely understood and tested that it was a grenade and this came back that saucy it was saw what was it described as a grenade and she described it as that very much thank you thank you first on the question of whether and i suppose this relates the issue to whether it's an affirmative defense i think they can still case  disposes of that they were dealing with machine guns but it's a part of the same statute it's in this this junk you phrase with destructive device and they discussed destructive device as well in conceal and clearly it is a separate crime and therefore the definition of destructive device is an element of the crime which puts the burden on the government the jones case as the harris case as well i deal with guns they deal with that type of firearm in the