instruction for the court to get which was the theory of the defense instruction in this case in the first trial in the excerpt records we personally told the judge this was a theory for the defense questions came out in the first trial on the meaning of control which was precisely the instruction that we start the court to give the court almost gave it the government it objected after the court had written out that instruction was based on three cases from this court rodriguez and so which were very close factually and went to what is tradition what is not position and the meaning of the word control within the standard possession instruction there are a lots of things that possession is not there lots of things that everything is not the real question for a district court it seems to me instructing the jury is what t we should hold perhaps for the first time ever that it was improper not to give an instruction about what something is not yet oftentimes it's difficult to define terms as to what they or any particular case is oftentimes difficult to define what justice is so i've heard what an injustice to define what justice is in this case after giving the pos instruction the first jury came back and struggled with the meaning of control the word control was then the subject of the further definition within three one and because the jury struggled and hung about it during the first trial we went directly to this court's cases to show what is not control to give that instruction in the second trial we had not only problems in terms of questions but there were three specific questions that went to confession first question do you have to own something to register it which went directly to four five and six second question is there a period of time instruction that if it is believed would allow an acquittal is per se unreasonable if there isn't anything in the instructions to say that if these it is ok for these facts and we have foundation the evidence first actual association with somebody who had actual possession of the firearm cheryl main testified that rick maine did so we have that fact secondly had simply a confession or a statement that is so interpreted doesn't end the trial process in this case we explained that many of these witnesses were in fear of the individual who has an armament and all of the weapons were traced to rick main this individual and so what we're talking about is one day in the life of chad harwood it was clear that the evidence show that up until august eighteenth of that year that these firearms were all changed traced to rick maine he'd clue when he drove up there so we're talking about is just the events of one day that's where the the first confession was i brought them on the plane no one believes that the second statement was i found them at a rest stop but tween sacramento and reno nobody believed that so the jury looked at it and said this was all garbage even the a t f agent said he didn't believe mr harwood so what it came down to the end is the jury quite rightly saw these are written means guns we're talking about one day we're talking about a rental vehicle we're talking about guns found in the vehicle the government conceded that chad harwood did not have actual possession a witness testified that rick mayne had actual possession so what you're talking about then is mere proximity and mere association in a case that there was no other instruction that gave those elements in the eye of the law sometimes in cases when there is an aiding and abetting instruction five point one those areas are otherwise covered in this case they were not so there was foundation in the evidence it was a correct statement of the law and it was the theory of defense at twelve a before and b i submitted to draft instructions for the court we're not claiming that we needed any particular language we submitted two options for the court to give but if there's foundation in the evidence and it's a correct statement of the wall it is reversible error to give to fail to give the stand outside the presence of the jury asked him every conceivable question that could come out and he took the fifth during trial during the second trial we had two questions that came where is remaining the first time that question came out was when chad harwood was testifying the second time it came out was right after we completed our closing argument after the first question i requested the missing witness instruction after the second question i or requested it again it's not proper in every case but in this case what the court failed to do was one instructed all to give them is doing witness instruction or three allow proper argument in this court's case i believe this judge kozinski case that it's clear you're going in there probably pronouncing it incorrectly the eight bed third i asked the judge can i tell this jury that i am powerless to bring this man to court he said no that's exactly what was permitted in that case at that point we had merely form over substance you could subpoena him but at that point he had exhausted all of his fifth amendment privilege under oath in front of the judge the district court found that he was not available so once again the timing of the questions shown that the jury expected us to bring him the government itself did not have them under subpoena and had the ability in that cloying case if i remember the argument was he has chosen not to testify the government has the power to bring him here i do not and the court said that that case the argument that was found by this court was that the government has the power to bring him as a witness because they alone have the right to use that power i am powerless to bring him here and i did i made an argument in closing argument that went as close to that line as i could and then the question followed up so there was obviously a question in the jury's mind i believe the argument that was given was that every citizen has the right to not speak or to be pulled into court or something along that line under direct because we had already had one question so the combination of those instruction issues rehearsal in this case following that there were five items of argument by the government one a representation that the government counsel had knowledge that david booth had spoken to rick mayne about a follow up subsequent sale which was here a misrepresentation of twenty five hundred dollars for guns a misrepresentation following up that look at who they subpoenaed and who they could have subpoenaed when in court rick mayne took the fifth so there was follow up on those questions that were essential because we have one jury that hung on the issue of headroom is your question comment about the twenty five hundred dollars for guns and that the court overruled that objection and said it was improper for me to make it the second one was when there was a comment about a subsequent sale one two and three conviction that is directly on point all of the testimony shows that these were homemade firearm has your question in storage what the defendant had  of firearms including some machine guns so there wasn't any testimony that they had been made from the kids in our case in the case of the chips for the way that they got the search warrant in the beginning and there was evidence from mr stewart that he himself had made the alterations with various parts and there was no there was no dispute that some of those parts had traveled in interstate commerce and some of those firearms down but to answer the that it was put together that machines are going to make us make us but the machine gun was put together and so you're altering like in our case exhibits two and three were parts those were parts step of the way it is jurisdictional and with respect to the ninth twenty one with respect to the counts four five and six i went back and looked at the jury instructions and i believe they're at eleven eighty five eleven eighty the nine twenty two zero instructions were lesser included of the of the twenty six u s c fifty eight sixty ones in that the first two elements of each instruction with the same the only different element is the firearm was not registered the only reason that a firearm these to be registered under twenty eight sixty one is that it's defined to be a firearm which is a machine gun so it's  just that the court would have to look at the record and see if there were facts that would put it into one of the three areas i don't believe there are the court can make those findings if it does but i think usually what it is to the district court to consider and then if there are any issues we would come up again i think that would be the more prudent thank you of the fans i think congress does have a very good concern to know about where machine guns are located who owns them i think these are the type of weapons that are inherently dangerous i don't think that since it is not since it's been tried and true that the books whether it is correct or incorrect it's on the books at the moment at this time also what he would what do you think we should do with it you think we should distinguish me think we should wait for it or what do you think we should thought we're talking about a gun that was not a machine gun that was modified there are three machines there or there are three machine guns they are they were all to the three that we know of were at one point regular firearms they were modified into machine guns as far as what it takes to modify a weapon into a machine gun and then you start getting into a question of what you know do we distinguish between modify versus make from several parts to create  that indicates where the weapons came from my understanding is that there are no foreign manufacturers in the statement about at this time but since there was interstate commerce is not earth showing interstate next just actually testimony in the record about where the guns came state lines was it already a machine gun in this case we will we don't know exactly where it where it was modified that i think that you know you can make an argument or we could speculate and guess but we have really no idea but we know at one point it was a firearm if if if stewart is pivotal in this case which i don't believe it it is that i think it's i would ask for the briefing especially since i think that there's i guess the government does have an interest in this case  will be changing her you know i guess that was part of the briefing on the issue not the government would like to take advantage of that opportunity just just in response to a two to  kennedy he said that that he only wanted to tell the jury that he was powerless to bring means to the court that i would disagree with that he wanted to tell the jury that rick man took the subpoenaed for the second trial he had a defense investigator interviewing him that would be that would be one of the first things is that i believe that it was the the break it was that the bramble case came down to three issues you know the investigator interviewed him so either knew what he had to say was helpful parts to his client harwood not help not helpful to him at all or didn't really matter either way in in the in the case we know what was said in fact that the defense never we just said that all all that they were only going to call rick manning to testify consistently with what he had previously told a t s the only thing that he ever told a was one he sold those weapons and he didn't he didn't remember who sold them to and number two he didn't know who chad harwood was that's not helpful to the defendant and so that he has no right to make a missing witness instruction  as far as as far as the evidence that they've shown the evidence that he's relying on are coming from defense witnesses who each and every single one of them war and peace for one reason or another a jury is free to believe certain things are free to believe nothing of what the sensed and they can  believe things in piecemeal what is your it started back in the deliberation room is for only a jury of your decision in this case we have an individual who made not one but two different confessions the farms found in his vehicle  he for some unknown bit and that was what was what was at issue now and she also stated that she did not know the business because she knew that she had harwood and her ex husband i mean they were in a business and she said she knew nothing about that business so the only thing that here's a possible theory and i even tell the jury that i you know i don't even know what i don't know we don't know what all the details are but based on everything that you've heard today here here's here's a reasonable assumption we know that she had harwood came down there to pick up for motorcycles to satisfy a debt of twenty five hundred dollars for some unknown debt and chad harwood i think he even even even confirmed that as well now we don't know what that is for now we know that he was out shooting we don't we had no idea if he was wanted by machine guns or if he was just out playing with them if they were his and he brought them with him down from oregon we don't know any of that but all of that was statements and evidence that came from the witness stand not be correct but it's a reasonable inference i have no idea i mean the fact is that he went to great mates house who it meant was no longer living there went there it took four bikes off of his property you know and he said you know and he said well the reason i'm taking them because they're min well you know that's that's his position thanks yes ma'am i i don't know i think i've covered all the points that i wanted to cover if there's any questions i'll be glad to told those parts to rick maine his testimony was he received them on august ninth he then told them on the chance that or the eleventh of august and the date in question was august nineteenth the evidence was th portland oregon at home during that entire time period if you simply took and assemble those parts you would have a legal firearm but they were modified should be machine guns which required unique firearms  and a t f agent how do i believe it's just lasting who has about thirty years in work have to actually take exhibit number three put a different bolt part on it to make it work because there restricted as to who can only where they travel to there's a registration process that i believe the court's opinion and stuart mentioned as i think it's eighteen u s c nine twenty three still there are channels of commerce where machine guns were purchased and there and i believe it's the rambo case if i'm correct is that type of case when the court was using homemade on the facts these are as homemade as they can get and the absence is clear that point government counsel indicated that we're not certain where these weapons were we are dead certain where those weapons were because the government's own witnesses in in the a t f agents booth and house testified to that and gave schildt testified to that and i believe one of the defense exhibits in the five hundred series because judge which starts at five hundred shows the receipt of the gun parts for exhibits two and three coming from the minton store but those parts alone don't make the machine gun these were homemade parts that rick may now was charged with having numerous of these under the new trial motion with the videotape of him shooting machine guns which could very well  i ever got a chance to look at the video thank you