case mr hernandez and another person with whom he was acting in concert approached three victims standing in a driveway and opened fire hitting two of the men if mr hernandez's claim that he was acting under duress was supported and found by the jury he'd be not guilty of all six of the charges that were submitted and likewise if the if the duress defense was rejected by the jury he rationally would have been convicted of all six of the charges and if a frog had wings and if you rode fly yes i don't understand what's the argument you may judge of the these are all hypothetical if a lot of ifs there it's an all or nothing situation and then it means that all six charges the verdict on all six charges rationally and logically would be the same one way or another the fact that the rest defense applied in the way you argued it so all of the charge oh yes the rest of the fence was raised and argued as to all of the charges lied equally to all of the judges yes yes because the there was a a single act by mr may be that the jury didn't reject the dressed offense and found insufficient proof which was on the other charges which is what was argued by which is what's argued by the government it may also be though that the jury compromised the fact as we as we submit and it was an argument went on the divest offense on the in reaching its verdict acquitting mr hernandez of for the charges and convicting him of the last two but they could think compromise they could all agree in their rejection rejection of the divest offense but compromise for some other reason there are many possibilities judge the fact is we don't know that's the bottom line in terms of mice the second argument that i've raised in my brief relating to the use of the acquitted conduct for a for the guideline analysis and for sentencing purposes the verdict we submit that was irrational and in explicable given the nature of the factual  situation in this case it's the the verdict was inexplicable was the government's evidence identical with respect to each of the two victims yes really yes it was there were one of them was shot before the other that is that is not my reading of the record your honor i don't believe that is accurate each one of the victims indicated in their testimony that they saw of the two guns being fired simultaneously that they saw the flash from each gun and that immediately each one testified that they felt something being meaning that they were hit by a bullet that's the testimony of the two victims as well as the testimony of the third victim who was not hit by any shot all three testified that two men approached both had guns drawn and that they and that they open fire that they shot simultaneously there was no indication of one firing first there's no indication in the testimony of either victim that one of them was hit first or one of them wasn't hit immediately upon the firing of the shots and i know that's an argument that the government has made but if you look at the testimony of the victims themselves that simply is not supported by the record so there's two men acting in concert who opened fire and it is it my formulation that i'm making to you today which i believe are supported by the record that this was presented by both sides as an all or nothing matter indicates that certainly highlights the importance of the rest instruction that's given to the jury but also our concern as to the likelihood of a that this was an inconsistent verdict actually i do but i won't get into likelihoods because in my view that doesn't matter the fact is because there was no special verdict nothing asked of the jurors to indicate what the basis was for that what was for their verdict it is possible that the jury found that the rest offense and compromised the whole nature of a compromise verdict which has been accepted by this court by the by the supreme court is that it  is inconsistent that it's irrational that it may be the result of not following the specific law that was given in the case and yet the courts have recognized that they are permissible  certainly saying that's what they agreed on and that would explain none of us here i don't say that i'm not asking for a transcript of what the jury saw and i'm asking you if the jury agreed and mr williams was shot first now was there unanimous view of the evidence would that explain this friday no not entirely ok what was no argument made by either side going to a difference in intent one versus another it's certainly the question that you pose your honor certainly could or would explain mr williams versus mr faber the other victim but again we can't know that my argument to the court while we recognize that acquitted conduct may be used as relevant conduct for purposes of sentencing the law on that is clear the point that we raise is that when or if an affirmative defense has been established which is also a possibility in this case given this verdict that if that is the case that to use that acquitted conduct would be caught would be completely opposite of what the jury found because the affirmative defense has to be a stand or as to the possibility it would be contrary to  possibility it would be contrary to anything that we know for sure we don't know anything for sure on the basis for the jury's verdict we don't know anything at all and that's why this matter is left hanging out there is the it is a reasonable and rational conclusion to argue that the jury found the rest by a preponderance of the evidence and yet compromised that that is also one of the possibilities that is out there that a jury may have found and that is not despair and is not refuted by any specific verdict asked of the jurors since that is a possibility how can it then it how can a sentenc court then use information that may have been found by a preponderance of the evidence and rule the other way that's where our concern is with the sentencing that guideline analysis in the sentencing by the lower co if i may dress briefly the issue raised in point one is to the charge itself it's our view that the trial court added an element to the charge of duress that is not supported a many years of case law by this by this court and the factual basis that the court was relying on is simply not supported by the facts of this case the court was attempting to indicate that you know posing possibilities you know if the defendant had knowingly gotten in this gang if you know he would know that certain things were going to happen and yet that is not the testimony of the cooperating witnesses in this case that was not and certainly not supported by the record so the factual basis for the judge's determination that this additional element was needed  we submit was not supported by the factual record and and that adding this particular element the reckless recklessly getting putting himself in a position where we given was an accurate statement of law and should also declined to vacate the appellant sentence because the district or properly considered the evidence before regarding the acquitted conduct taking those points reverse order as opposing counsel by i miss the same before we reach the sentencing what do you make of the argument that the jury had necessarily rejected the duress the friend when it convicted mr  honor it's our position that there that there were the compromises not implicit in all this instead when as district judge reviewed the record and the evidence that was offered it was really an irrational to two to be the case of the jury did not reject arrest offense here the jury convicted the defendant of assaulting curtis williams but not attempted murder correct so the attempted murder and the assault arise out of the same transaction your honor and here the jury convicted us the assault but not the attempted murder and the only difference between those two crimes are the state of mind and the defendant and contrary to the argument that the appellant has made there was indeed testimony in the record regarding the defendant's state of mind because he himself testified that he did not intentionally aim at the people that he was aiming at the property because he did not want to hurt anyone and so the fact that the jury acquitted on the first count is instead consistent with the fact that the jury  perhaps credit terms of the intent correct your honor and so the fact that the jury acquitted on the first account but not with the second is consistent with the fact that it found that the government did not prove beyond a reasonable doubt the first count and that is a rational interpretation of the jury's conclusion unlike the interpretation that the pound is off for now and what underscores that point is the fact that the district judge here gave an incredibly detailed and careful instruction regarding the verdict sheet and it explained to the jury that they were only supposed to consider dressed if they found that the defendant was guilty on all counts and so was specific that it was on each count they should look at whether or not the defendant was guilty and so the jurors were given an opportunity to consider their question additionally additionally the cases that are cited by the defendant in support of the notion that the sentencing enhanced moment was improper or are really irrelevant in this case  was different between the two victims although as stated it was not different with respect to the victim's testimony it was different with respect to the defendant's own testimony because the defendant himself admitted that he shot first and the defendant also made  arrest interview and so as previously suggested by the court the verdict is consistent with the notion that the victim curtis williams was shot first and that perhaps the reason why there was a full acqui it is argument among the very best you got to the extent that it wasn't sufficiently detailed which the government would knock it and see it was certainly made up for by the district court's instruction which was which was very detailed and very clear in response to the jury's question about about how much you consider that arrest offense and so is more than made up for any argument that the verdict sheet is not clear was there any request by the defendants to have a verdict form  on which the jury would specify the basis on which it reached a not guilty you know your honor neither side requested a special verdict and well we have here basically is a general verdict with respect there was no objection to the verdict form correct and they didn't ask for a special and they didn't us for  versus a guardian united states versus paul are still the law and the jury instruction that was given is articulated very clearly in those cases being that when a defendant has recklessly or negligently placed himself in a situation in which i probable that he would be subject to the arrest the defense is not available and those cases have not been have not been abrogated by by this court and in fact the cases that are cited by do that by the appellant in support of this argument are cases where this where the defendant did not receive address charge at all because the court found that there was a reasonable opportunity to escape and so and here in the district court actually noted that it was conceivable that the defendant had not even offered enough evidence to marriage or a charge but nonetheless gave that charge out of an abundance of caution and so that event in here can hardly argue that he was prejudiced by the fact that the charge was given in a way that was fully consistent with the law of this circuit judge just briefly with regard to a compromise verdict but the whole notion of a compromise verdict is that it is inconsistent is that is that the jury has gone off on a frolic of their own a few well that's not to shoot anybody that he really meant to shoot at probably the test he did in fact testify that he didn't mean to shoot anybody yet so that does not provide a distinction for attempted murder or or or assault that would provide a distinction if he was acquitted completely but it doesn't provide a distinction between those two counts that he was about with regard to one conviction want to quibble with regard to mr williams it's just that the fact that it may well have been that it could have been a compromise verdict we were looking for rationality where there may not have been any and if we can't and we can always sort out in our own minds what we believe the basis of the jury's verdict was but without knowing that how do we make it how do we then go forward that's are can we trial counsel yes i was judge it's clear that you didn't object to the verdict form no judge neither side did because as i said at the very beginning this was clearly understood by all involved that this was an all or nothing case thank you very much w