last case of the afternoon is oregon services versus attorney general number eighteen desh one one two five deliberate indifference or plain indifference and then a deliberate just out violation of it and i have some examples that i think may help with that a little bit as well as an example to kind of put things into a field you may be familiar with the kind of keep in the back your mind here is we're going through some of the stuff so the example i want to start off with one mr prince kind of already covered but it comes from fair amount cash management where a t f put in undercover agent into the store undercover agent says i'm a felon shop him a gun they put the information into nics incorrectly so that it goes through first time second transaction same guy comes in the gun puts it in correctly gets the denial notice transfers the gun third time comes in with a woman straw purchase transfers the gun i think for that example we call greed very deliberate not clean indifference such as the deliberate action taken is for is the cleaning difference example there's that's really where we need parse things out here and i think the example it may help you in the back your mind as we're going through this is your have law clerks right let's say that there's a statute that criminalizes the distribution certain information absent the government providing approval with a form your walk or you direct them to send documents back and forth to individuals the office clearly aware of the long regulations because they do this for a living only really the government contends that the information went to an individual who should have had it criminally prosecute you and they say that your walker can no longer continue to do what they do because they were acting at your direction and they had familiarity with the regulations you know the law clerk had no idea that that person should have had that information but that's sort of that's where the rabbit goes in the that that she did know that there was correspondence with the sheriff's office the sheriff's sure personal accounts there were things communicated the media clear she knew exactly what was going on so let's stick with that fact pattern why why is it wrong for or excuse me this record to have looked at that set of facts and said yeah it was at a minimum there was a plane difference sure so let's let's take those and turn his best and i can remember them as far as the personal email being involved there was testimony from  perkins at the administrative hearing that most people just hit reply they don't look to see the e mail address that it's coming from if we can accept that as a valid argument there we can move on to the next part of this is for the e mails themselves those e mails that were sent back and forth they were done of the direction of volume in e mails if you look to see what was actually sent a lot of it was requests for paperwork that was required by a t f some there were some sample demonstration letter sent out  sample demonstration letters were also found in e t s and if a handbook h and k the company that manufactured some of the machine guns that issue in here provided a sample demonstration to the mrs corteen to pass along to the department misunderstanding this but i thought there were letters that were sent there were saying on the one hand these are for exclusive use of the sheriff's office on the other hand communications were going to the sheriff exhibits in the ministry to record and i can try and dig for them tommy had i can also try to portray the bottle for you but they have a whole section of emails that marco urging specifically had been involved in in i went through and looked at the e mails that they had in the administrative records from the first second and third machine gun transactions anything that had to do with the procurement of the guns as far as how he would be divvied up amongst the that please copy my system involving travelling so forward all the paperwork but as far as the actual distribution of parts how things would be broken up amongst chief deputy whom star presumably mr keller tina and i morris is not a coconspirator i read that i read the transcript i didn't mean you can point out where they say that i read it as i mean somebody pushed for that in with the court found was well at least there's an agency status going on that's as far as i think it went is there a place where the court holds she is not a coconspirator the court in that and you're referring to the criminal trial of mr lindsey and yes my understanding of the way i re anyway was that under the santiago standard in order to have somebody brought in as a coconspirator for the purposes of you need at least an agency status right well in the they found that she by the proponents of the evidence that didn't rise to that level they  it is a given that for a discussion that there was a ruling that they in statements would not come in under the coconspirator exception to the hearsay rule how does an evidentiary ruling like that think in the context of if you look at it as if they can't show by preponderance of the evidence which is a fairly low evidentiary burden that you the coconspirator how can they show that her actions were willful willful and this goes back to you now we're going back to it well willful is inserted into the gun contract it should have some meaning now we're going back to deliberate more plain indifference well if she didn't know her actions were unlawful she believed that everything was above board she didn't have any information i don't see anywhere in the record where it shows that she had information this was not a lawful transaction how can they argue that she's now aiding and abetting a conspiracy with no knowledge of a conspiracy actually happening there there you go when you that's the problem right when you say how can it be when she had no knowledge of the government is there is circumstantial evidence that she did know and the fact that a trial judge in the middle in the midst of a criminal trial with respect your husband makes an evidentiary ruling that statements are not going to come in on earth that statements are not going to qualify as coconspirators statements that that doesn't seem to resolve the issue in a way that prevents another tribunals and look at  and say you know there's enough circumstantial evidence here for us to reach a conclusion of aiding and abetting i understood you are going to be just around the district court just couldn't even look at that that was blocked off by collateral estoppel and i'm not following you to the end of that logical trail ok you are i think in that vein if you are looking at it the best way to kind of go about it is it is just simply going to be bad as far as eating in a betting let's just remove you stop all even let's just go to meeting in a betting because i think that's really where we ultimately have to right end up we're going to reject the stop argument is that if she didn't have knowledge of it and again  machine gun she is involved in with with them in a way that they that sheriff says it was just like deal with mr was just like deal with mrs and vice versa their perspective they were the same and knew what was going on if there's that evidence in the record why can't the government rely on that record as the basis for saying no there's evidence that she she did know that she understood what was going on i mean you're saying take it as a given she did i need you to address we need you to address what what they say is evidence that she did know i see my time's up would you like develop ok so i think when we're looking at it there's a couple things i mean one if we're talking about the financial aspects of it there was testimony from ernest lipner the governor's expert the government's expert witness that it's not uncommon for others to pay for department government if we're talking about the e mails that were exchanged particularly things that sort of demonstration letters invoices that's all in the regular course of business very licensee to do so i don't know if there's anything abnormal about that conduct even even the destruction of a machine gun or receiver for that matter i mean you can you can remove the machine gun aspect out of it there are certain ways that you can cut up receivers in order to make them no longer harm for the purpose of the gun control act so i 'm not sure that any of that this fishley if at the time point in time she didn't know if i was getting any of these parts back and so things like that i don't know if there's a way that you can push that ball so far to say that she knew ok thank you thank you  ok but but my question to you is as a matter of law does it matter whether evidence is disputed or not assumed there's only one if it's disputed does the court say well that's it it's disputed we can't deal with this or can the courts say substantial evidence supports this decision even if it is disputed i think the jur lies i'm trying to figure out the legal piece here not dispute that specific case we see language sometimes the talks about substantial undisputed evidence why does that undisputed word show up if if we start using that kind of language are we are we saying in the wrong song matter ended prior to denying the applications up until then they continued to issue letters of authorization for a side to continue doing business this is clear from the application of one of them until after that the guilty verdict came in so she can be would seem anyway that you can infer that the government believed if you didn't get a guilty conviction action on that license may not have ended up the way it did maybe it would have i think it's i think it's fair to say could have gone either way but you've got to prove you've got to prove criminal doubt is acquitted and they still will decline to give the license right well and therein lies an interesting question in a little bit of a problem at least from my perspective if you will if they're saying that the to push other than the burden being less or saying that the the corporation did something wrong well indeed there is and there are statutes that says if you're acquitted of certain acts nine twenty three they can't the government can't go after you to to do something negative to your license right correct in the part here that becomes problematic if you will mr clinton has his own license in his own name and then he's also responsible party ion site so in that sense let's let's go down the hypothetical road let's say some circuit overturns conviction and he's acquitted of wrongdoing he gets to keep his license and his name however this court finds that relation to it because of nine twenty three for right in relation to his license yes so that has seen a curious outcome but the government can do curious things right they can say they want well ok we give you a pass even though you're the one we chose to go after atsic you and prosecute but these are responsible parties over here and they don't get the benefit of nine twenty three of four right well and that becomes a question as to whether or not it's a just outcome even even if we thought we thought that was somehow you know didn't strike us as particularly good policy if it's the policy decision congress has made it is what it is isn't it