dangerous weapon is an element of that offense and no one disputes that it is a question asked after the jerk still the jury at mr smith's trial with instructed that there are three elements of the crime and none of those three with the use of a dangerous weapon instead the third element that the jury was instructed on was used that the defendant must have used prison need not now there may be some cases in which a prison made night is per read a president made nice is a dangerous weapon if it is used in a way that is capable of causing death or serious bodily injury now we would conceive that if he an element of the offense in this case was use of a dangerous weapon this would be a very appropriate definition of that element but the third element in this case was that the defendant used a prison made knife in not other words this definition was to something that the jury never was never instructed was an element considered a prosecution of tax fraud and in that case an element of the offense was that the defendant acted willfully in that case the jury was instruc to read the statute which included the term willfully they were read the indictment which you included the term willfully they were read a definition of willfully then they were friends russian that said in order for the government to prove will can be said that the definition of dangerous weapon sure the own nation because the jury was instructed it only need to define three elements and one of those elements was not dangerous weapon the of the jury considered that evidence and i think that would go to the question of whether the evidence was sufficient to convict but what i'm choosing to focus on today is the instructional care it is not for this court to come in the re weapon lou it's the one that the defendant proposed which is that one of the elements is use of a dangerous weapon i couldn't find other model jury instructions on this particular offense but in terms of the offense eighteen u s c one eleven which is assault on a federal officer with a dangerous weapon there were three circuits that had knowledge or instructions and all three of them instructed that one of the elements is the use of a dangerous weapon and then there's a definitive dangerous weapon so the nicer if it stands alone drawing instruction which allows basically the court to instruct the jury that the government has met its burden of proof so long as the as the jury finds that the prison made nice was used that's enough and we would submit your honour's that that omission mission of the third element of the advantages is constitutional here in this case the court may believe that the evidence especially from  evidence underlying the argument you presented the same perspective you're trying to present to us now this was a foam quote unquote night and therefore could not meet the requirement and of course they showed no this was a melted all of the argue and he did say at most it was a simple assault but it was not the focus and in any case the jury was not instructed that it needed to find it and the case law especially brought spears clear in bret's be it was the focus of the case the of trial as is constitutionally required and the issue is frankly why wasn't he present the appellant on behalf mr helm i have no dispute that aren't there are circumstances where an individual can w forfeit his right to be present at a trial if he behaved improperly poorly or whatever and in fact mr howland who has admitted lee a difficult client and a difficult inmate acted improperly the first third day and the supreme court made clear that it defendant who is excluded from trial can reclaim his right to be present that's what the al the behavior of the the standard in that case was reprehensible cursing yelling throwing papers trying to do whatever to stop the trial the supreme court said at any time a defendant can  appropriately he didn't even call out once he acted entirely properly as any other defended the third day why wasn't there the record that we found out later after the trial was over is that he was drugged there's no question i believe and the record shows that he was drugged he was given three to six times the normal dosage of  trial his behavior was entirely consistent with someone who had been knocked down by drugs this is not the situation what happened on day one and everything else that happened prior this was not affirmative yelling screaming fighting throwing things or anything else everything he did was consistent with being knocked down he was laying on his bed he had covers over his head he was  so forth but usually the lawyers can take care that this is the day where too many government witnesses are being cross examined and i client can provide assistance to cross examine them and even more importantly this day that the defendant's case started the government rested and the court turned to me and said this is the rover end and i have to you have you call your first witness will you have any witnesses and my client i usually have but the third day they didn't get lucky the point is they run the risk my client had a right to be there at his trial unless he did something to force it he did nothing to forfeit the government run to plain and simple inadvertently recklessly intentionally doesn't matter he has a constitutional right not to to attend his trial and if they do something to him that  evidence you offered well i didn't offer the government put that in response but at that point it didn't seem that there was any mechanism to correct the error because there's no new trial motion available it's more than ten days and i believe that at least one of the four cents and i asked to have the verdict vacated because of the drugging and it was too late i think at a minimum at a minimum that he needs to be a is that you did not raise the question with respect to your client as opposed to this chance for hers as to the number of tests issue which raises the stevens  custody at the time this happened he was imprisoned up in the un that he was taken into custody after the events and faced both additional charges and in this case and prison discipline for the action and when he was asked to speak he did not speak and the government made reference to his failure to come to assert his defense of private he that is no not to he was it seems to me like there's a very strong difference between those two scenarios of not this case but in another case where you have a witness standing there on the accused standing over the body in the witness es in the front of a police officer who murdered him and he doesn't deny it just because he's not in custody yet he hasn't been arrested no miranda warnings have been given that's normal eviden else but he's not in custody with respect to this particular incident he was he was taken at the time by the prison guards and mr hallam has been in prison for a long time and he knows what's coming you know that minimum he didn't tell the prison officials he didn't tell the prison officials what his explanation was so why can you believe it now that's exactly what you can't do so i will leave my time and  by kathleen royce she was the medical administrator at the prison in which you don't need to infer anything from the declaration she says very directly that mr holm was receiving the exact same medication and the exact same dosage for several months i was in the right in barring him from the courtroom on that day clearly that's not what happened here the only issue was whether or not mr hallam gave him gave up his right voluntarily waive his right to be present at trial neath or day and i think if we look at the record of  detention center where he was initially house also jeopardizing a very serious way the health and safety of u s marshal service that was required to bring him to court the bureau of prisons personality throwing one's year in feces at somebody is a very someone who's been in drug it's been referred to i disagree i disagree i think it's entirely inconsistent with someone who's been drug someone that's been drugged and goes to bed will be thrashing about all night they won't be lying there marshal bet it's very clear that mr hellman was again on the third day of trial playing games with the court trying to disrupt the proceedings as he had in the past there was absolutely no evidence to the contrary whatsoever that was  history there was question no in anyone's mind what he was doing even on the third day of trial when this information was brought to our attention this removing himself to not ask for additional time to go talk to the defendant to go check out the allegations and das for recess to even put in a call the prison everyone knew what was going on mr hallam for lack of better word or phrase was up to it again and that's what the court found in his allegation communicated through his client and he through his lawyer that he had been drugged simply not true in the same dosages for several months now i don't know what the effects are i know what the effects of benadryl would be on me i don't necessarily know what they would be on a man that size who had been receiving that cation for that long and i think we need to know all we need to in handcuffs or whatever said to him you know what did you do here and this for how long remain silent that simply did not happen the only instance involving silence of the three that are in dispute is when the prison guards ran up to the lock wrecked cage virtually in the middle of the assault and during the assault the victim was able to get away and crawl towards the sally port where mr helen chased him down that was the sounds like commented on the silence especially during the incident and i was responding mr rubin's argument that the prison guards only seen half the fight they had seen the middle of it not the beginning as in a basketball game so that's a choice you got premer and you've definitely got pre arrest because it's virtually during the assault on the last fairly clear the can comment on that silence the other two situations we're talking about did not involve silence at all involved statements so for mr rubin to say this is exactly the situation where a prosecutor comments on the fact that did not testify at trial completely ignores the fast defendant did not remain silent and if any made two statements and neither one of those statements included the details then mr rubin argued a trial have simply commenting on that inconsistency and i think the cases mr ruben about the on raised issues well now the government's already conceded that one of the issues will have to will require remain and is there any reason why mr helms should get the benefit of that i can't see any reason you about the the with respect to the other other issues assuming just for the sake of argument that we would be man to one of the other issues again any reason why i entirely an element which they which was discussed in a different portion of the jury instruction in this case we have a jury instruction it was a complete unit and if you focus on the complete unit i believe that a reasonable jury would have that middle section and we excluded the first part which refers to a dangerous weapon and we exclude the third part which are refers to a definition of dangerous weapon you know if we look at that i think we're ok because at that point the jury instruction  sufficient i'm not suggesting we do that necessarily because there's more to this instruction the first part of it refers to this is a charge involving assault with a dangerous weapon the third portion of that gives a definition of what a dangerous weapon is in this context and a reasonable jury looking at that jury instruction i believe would it is this sense of peer a prison made knife is a dangerous weapon if it is used in a way that is capable of causing death or serious bodily injury is i'm sorry and you hear  first where the question a prison made night is a dangerous weapon if it is used in a way that is capable of causing death or serious bodily injury it's part of the sentence of against the object marked as government exhibit fifty two and fifty three i believe i believe the court may be referring to there are several versions of the instruction there was one version that the defense proposed i think the court just referred to but the parton instruction is just given did include the sense the court just refer is dangerous weapon if it is used in a way that is capable of causing death or serious bodily injury so the jury first had to decide whether it was a knife and then a prison a knife and then they went to the second portion of last fort and decide whether or not this particular prison made knife was capable of causing death or serious bodily injury so i believe if we look at the jury instruction as a unit and i think we have to presume that the jurors in this case did it contains all the necessary elements for the charge that if it was found guilty of a knife is a dangerous weapon so if a jury confronted with just the middle portion here was given these three elements in the last one being the defendant used to present a knife if you accept what she says that this was not a knife it was a styrofoam caucus sensually in the jurors would have to decide whether or not that was true whether or not it was a styrofoam cup or whether it was national knife if they found it was an actual knife and that's sufficient under the law to find it is a dangerous weapon but that's not what whole the instruction on the elements indicated the third element the government must prove beyond a reasonable doubt that the defendant used a prison made knife in separate paragraphs but part of the same instructions the instructions advise the jury that smith was charged with assault with a dangerous weapon and that a prison made knife is a dangerous weapon if it is used in a way that is capable capable of causing death or serious bodily injury ascribed to our i believe that this jury instruction as a whole adequately instructed the jury on that point proceedings i think if we look at the record it's very clear that even if there was a mistake with respect to the court's application of that subsection on this very clear what the court would have done court did the same thing in both mr holmes or it's harmless error yes  been an error in which subsection of the first two and it's fairly clear that based on the characteristics of these individual defendants the nature of the crimes they were committed that the court felt obligated from a policy perspective not from the guidelines perspective but from a policy perspective from a public policy perspective to impose a consecutive sentence primarily out of its concern for the safety of the public so even if there was a technical  i believe the error was harmless because the court if faced with the issue again would have done exactly the same thing they look at eighteen u s c three four two one if the court of appeals determine just want to clear the record i am not arguing nor did counsel below argue that the prison made knife is per se a dangerous weapon to the contrary in this case the jury clearly was instructed it needed to find a prison made knife and the evidence overwhelmingly supported that there was a prison made knife but the question is why was that prison made knife a dangerous weapon and that is a question that this court can't answer the district court should not have answered it was for the jury to answer it and the jury was never asked to answer that question the government talks about the fourth step the jury would have got to the jury never would have gotten to a fourth step because it was instructed that there are three elements of this offense the third element was use