tenseness united states versus rico it is docket twenty dust and mr hopkins please proceed when you're ready please the court i'm a lawyer it's hopkins i'm here for mr riccio this is the one issue evidence that mr rico was not acting in self defense at the time he fired as far in the direction of mr right rico a shot at multiple times far right which resulted in and his arm just one moment right there so i'm sure that i understand we're on the same page we hopped in except the district courts backed findings unless you show us that they're clear clearly erroneous so accepting those fact findings where are you well those were the facts that was in the record these guys encountered each other and shot at each other basically there are more facts on that the all the district court sets out the sequence and hitting it an initial an aggressor was and so forth and so for you to prevail you have to overcome those facts point to ways the facts don't matter because i still went on number two that the district court was clearly an error and finding those facts ok well i really do believe that this situation what we really have we had two guys that you know to be honest with were from probably from rival gangs or had connections rival gangs they encountered each other and they saw each other and the shots hand and the other guy was was hit as well in that our argument is this is that when these when these got that this all happened so fast that there's just no way that you  the government had to as part of its case refute your self defense claim that they had to prove that that was wrong i mean typically self the at the hearing that my client's counsel they put forth enough evidence that he was acting in self defense that to or to rebut that ok sagal i just want to get past the idea i mean you're not say are are you  you not saying that it was the government's job to prove that there wasn't self defense i mean you had an initial burden didn't chew of proving that your client acted in self defense and you have to make some showing there yourself on as i read it was there was a security guard who said that your client shot parts what's the evidence that your client didn't shoot st to controver to your honor i i think my client probably did shoot st however the the other guy was in the process of also shooting him st it was it was it was kind of a a wild west type scene out there for sure my spine how much time separated the two shots from your guy and the other way they're almost simultaneous from my reading of the record almost simultaneous i mean it was it was all it was for the most part but what i was also wanted to point out to the court is that right was the guy that that my client had this exchange get exchange of gunfire with is a rice actions after being shot were consistent with him being the initial aggressor right was shot in the right in the right side as with any gunshot wound the injury could have been life threatening but right did not call nine hundred and eleven he did not seek immediate medical attention or immediate medical treatment and he did not report the shooting to law enforcement but are those behaviors equally explainable as just a game played on even if he was not the initial shooter i would think that those same motivate the his potential being complicit in again shooting would be enough that you'd want to say off the radar screen that does a valid point your honor but but it's also medical condition or add treatment was because he was apprehended that's possible i mean i don't know whether he would have gotten immediate medical attention or not you know when when this happened and i thought that he drove i thought that he had somebody drive him away rather than being taken from the scene in the hospital or anything and then then he was dropped off at her and the more remote us that that was the other guy that was right which is almost five miles from downtown denver and there are a lot of other hospitals closer downtown denver than the rose medical center such as denver health when he got to the hospital he lied the evidence is he lied to the medical people as to what happened you know you talking about your guy or you talking about right i'm talking about right yeah  the right but when he got to the hospital he has the evidence is he had he told the people at the hospital that two guys drove him to the hospital and dropped him off he would not give the names of those two guys and he told the people at the hospital that he made up a story as to how it was shot and who shot him and he refused to give the names of those guys it took him to the hospital it was certainly of a city council do you know i mean it sounded like when you started off your argument you were talking about the preponderance standard  do you you concede that that's the standard that applies here the preponderance of the evidence standard as opposed to the clear and convincing yeah i think so the the his his counsel and district court made a big argument out of a clear and convincing standard and cited the th circuit case law and in my opening brief i talked about that quite a bit but as i reflected on it and looked at it  i think this court will probably find it is a preponderance of the evidence standard so in a reply brief and from this point on you know our argument is that even if it's in the proponents of the evidence standard as opposed to a clear and convincing there's just no evidence even by proponents of the evidence standard that he was on acting in self defense and that he was not the initial aggressor but it all candor when i think we have here is we have two guys a got a gun fight and there's really no way to tell who was the original aggressor the rule it really isn't there's really no more evidence than my that my guy my client was the initial aggressor then the other guy don't hinder it's a wild west situation for sure pride and judge for hammer was more careful than that he went through what the video showed he went through what the witnesses said and he concluded as a matter of fact that your client was the initial aggressor and that your client provoked the confrontation and those i think are fact finding subject clearer and so i don't know but it does hurt for you to come in and say well i disagree with judge burma you have to show us why what judge bremer sent bush clearly erroneous fact find and he had a basis he explain the record at the sentencing all of the reasons that he comes to that conclusion he doesn't just come out of left field without well that's true he did spend a lot of time and was very thorough in  that but i do believe that with this court looks at the record and looks at the facts that this all happened simultaneously so let's let's assume that let's assume that they drew their guns at the same time and started firing at each other wouldn't the government still be able to support the enhancement on that basis d i mean do you think that the same that your client on the same evidence that judge bremer could have could have found that your client was was a shooting at the other guy with the intent to kill i don't think so because i can make just as strong an argument that you can bridge the facts also support self defense that if you look at it this all happened simultaneous only once it was the other guy also shot candor but i think we do have self defense first i think you could not find a stronger case of self defense then my client his situation that night i mean he had a guy shoot at him and and it also the guy's behavior after he was shot a good he does to a hospital as five miles away from downtown there are a lot of other close hospitals closer to downtown denver ten to forty five minutes to get to the hospital but even before the shooting it looks like rico was kind of a provocateur i mean he opened up his coat or whatever it was to show a gun on his on his waistband and he placed gang symbols so if you are the provocateur to are and that propagation turns out to be successful and you go the other guy and to take in the st physical act against you and you then claim self defense well i mean i'll be the st to admit that my clients in a choir boy but the guy they're not using the choir boy standard but but my question is simply if you provoke the other person to take the st act of violence can you then assert self defense because you provoked the initial assault against you or do you have to prove that you did not unreasonably provoke the st attack against  and i think here it's really not all that clear that he necessarily provoked that question that he fired st making him the initial aggressor on these facts now the language of the stipulation is that mr right returned fire but the clear implication of that was that he fired st and not only was that the clear implication that's what defendant understood the implication of that statement and his plea agreement being because he later challenge then withdrew whether he fired st now it's not just dependent stipulation on this point there's other evidence in the said that after the person in blue fired five or six shots the person on the other side of the street returned fire and th other person interviewed by police said he only saw one person with a gun and it was not mr right so i think that in this case this fact alone supports the district court's conclusion that mr rico was the initial aggressor he fired st on these facts not only that i disagree with the cause in counsel's contention that shooting was somehow simultaneous and it was a duel in some way that person's one prong or weapons at some time the record doesn't state that we don't know that from the record what we do know is that after mr rico fired several shots there found the defendant provoked any attack now the district court didn't cite the colorado statutory exception a soft offense a provocation but i think that those facts provide a basis for that exception here defendant piece to the parking lot throwing gang signs using on gang related language and as the p s r points out mr right and mr rico were each members of two different games with issues so i think under the prosecution exception defendant still would defense and i think also we just don't have any facts that at the time defendant fired he was doing so because he saw mr wright with a gun on mr wright was threatening him the reality is the record just doesn't disclose to a different hospital when he needed to necessarily go to not being entirely can with thomas happened while those could have given rise to a different in prince about what happened the question on clear review is what facts are the district inclusion and is it support and in this case that initial aggressor exception is supported by defendant's own admission in the stipulated facts in the plea agreement if there's any other scenario because this or court never found that there was the requisite mental state for purposes of attempted murder that's not the case here or here the court said you're attempting to kill that person and the plain language of one of the things i'd like to point out there was another party another defended involved in the set of facts and i believe the government as a method to my client mr rico was not the