fiola the court held supreme court held a section one eleven liability attaches at the acar has the criminal intent to do the accept forth in the statute which in this case would mean the criminal intent to forcibly assault impede interfere this is specific intent language in the elemental sense also the instruction used for one of levon below allow the jury to find liability for attempted assault which is defined under six point one eight and use case and why that doesn't control this case well i think what has happened with hanssen and other circuit opinions around the country is that later these courts are holding that section want to love and as a general intent crime so i don't feel as controlling authority for that proposition but they're confusing the issue of the common law simple solve intent requirement for simple assault with the knowledge requirement of the victim's official status the latter is not required to be proved after fiola and in mn and in hanson there's the i'd say it's wrongly decided it's it's confusing the issue the fact is that in my view law there is authority stating that if if the statute is is missing an element step the the the rules for statutory construction  hold that in order to incur a liability under section one eleven and actor must contain merely the criminal intent to do the acts there is specified here the criminal intent to forcibly a solvent theater interfere that in our view voluntarily and intentionally so the district court as i understand it in this case instructed the jury that it had to find that mr augustus acted voluntarily and intentionally absolutely and it goes on to say jury instruction as also an attempt as well so yes that's correct so so so if if it was if the district court instructed the voluntary and intentional that trigger the defendant's view i'm just trying to put together the idea that it's not a specific intent crime which is why you can get your defense cracked that's what the district court held that's correct well it was briefed by the government and the district judge just wrong agreed with the government that this this section is a that this statute is a general intent crime but it was in but it was instructed to the jury what you're saying in your representation it was instructed to the jury as a specific crime of well that i would interpret acts set forth in the statute this is all specific intent language in the elemental sense i picked up this case i didn't try this case below my colleagues and so when i when i started before i judge kelly says you know the in jury instructions got one theory in the law in the sky has got another theory the hanssen case has another theory what does that leave your client to think about it from your client's perspective what's your best argument for your reviewed these footnotes there is a gates that at now at this case is not in the brief your honor but it is in the court's committee comments it in the gates the court look to the definition of the common law definition of simple  reasons i just think that the a lot of these other courts have misapplied feel of focusing on that knowledge of the victims official status but this crime it's always been a specific intent crime from the very beginning and the language used in the statue or in the in the in the jury instruction supports our view i mean at what it's i don't think it needs a lot of parsing intentionally assaulted  and suppose first second we see it is your client got a break in the trial court because there was a tougher standard and required by law intentionally and voluntarily how does that translate into a break on appeal he was denied the opportunity to present a affirmative defense to his charge and this is just a you know due process and fundamental fairness of his proceeding below and these are the reasons why this court should reverse the conviction on i think the discussion here that that i've just heard really demonstrates the difficulty that the lawyers will face with here in terms of the law and  i i have read cases i can't cite the case to the court but i have read riyadh fiola and if you go back in and look at the opinion the court was not asked to address whether this was  of discussion it starts at six thirty six in continues through six nine and five so they they concluded that the in terms of specific intent and into the extent that they addressed to only had to do with whether or not a conspiracy to commit assault required a higher mental state and they concluded that it did not obviously our position is that hansen is controlling and  set out a number of options in my brief about how the court can treat that precedent and i won't go into those discussions but i thought it was interesting that hanssen was decided in one nine hundred eighty and it wasn't until nine that of the other circuits who have considered the issue that there are i think there are seven other circuits that have found that a defendant acts knowingly but not with specific intent to injure  and that this is a general intent crime for purposes of those other the other circuit court precedent  voluntarily and intentionally quote and it's difficult for me to at answer that question if the court views that as a higher standard in terms of minimal state happy how do you view the mental state of voluntary and intentional well i'm not sure that it comports with with wilfully so if the court of the is of the view that that is a higher i think it would include some concept here that somebody is violating a known legal duty i mean that's certainly the standard for tax cases so it's a higher standard of knowledge or higher middle state then acting knowingly well using the language here what he what his defense was if you just if you just look at the instruction struction and told the jury that they had to find that he voluntarily and intentionally did this he proposed a defense that said i this is why i couldn't voluntarily and intentionally do this under that instruction why isn't that intoxicated talks to the weapon charge and so you know we're we have a situation here where there's a model jury instruction and that the court i think presumed was correct in instructive cording  controls and it may be that there was a new correct jury instruction i don't but but again we were the government was held to a higher state standard of proof then with a lesser instruction i think it's also the way it was indicted was and with the indictment also have that language we believe characterized it as a no rodeos jury instruction but it's the government itself that is charged that way does that make it different your honor we are the only way i know to answer this is will we rely on the jury instructions that offered in setting out the elements of the offense and so that's the way we charge instruction i'm not sure that we would have thought we were doing it correctly if we had worded the indictment otherwise she think voluntarily must mean generally voluntarily and generally intentionally the evidence was excluded you know you are i'm sorry i want to make sure i'm not suggesting i'm simply saying there was no evidence in the trial record but the way the brief was but i'm what i'm asking is is the reason there's no evidence is because the trial judge not a defense i'm excluding the evidence that's correct your honor well then you can argue that there's no evidence i was trying to argue there was no evidence in the trial record there was no evidence before the jury was there a motion in limine they did to if they could i think i have nothing to add at this point and if the court has any questions i'd like to try to answer them saying none thank you for your argument mr byrd respect to the other circuits the gym opinion in the ninth circuit your honor ultimately held that it was a general intent crime but first it did a two step analysis in a first look to the common law definition of simple  on the law analyzing the law yes and then i pushed i disagree with its its interview reviewing the purpose and then changing its mind but this underscores the the point that per person with respect to common law it's always been a specific rhyme and in and so intentionally in the jury instruction it's it's it's right there on its face a black letter of the instruction the committee comments i believe support our position as well to the jury instructions for one eleven and intoxication thank you for your argument counsel case number eighteen dash twenty three zero three is submitted for decision