should reverse the conviction against used to go because the legal instructions that were given to the jury would not sufficient to assure that the jury was properly guided in his deliberations mr gun's requested to propose instructions that went to elements of the offense forcibly and use of a deadly or dangerous weapon and except for one sentence the court did not give those instructions mr gumbs was hindered in his ability ability to present his defense of accidental and lack of intent to direct force at the officers that failing in the instructions leaves a doubt that cannot be destroyed or removed i would like to address the errors with regard to the legal instructions that were given to the jury including the course response to the jury's question and the fate to grant a lesser included offense instruction you know your argument has been that the jury might not have understood that the term forcibly applies to all means of committing a sexual one on one offense and i don't see where the requested instruction does that any more any better than either the given instruction or what the pattern instruction would have been your i believe that the nd sentence of our request instruction does that where it says to forcibly assault resist oppose impede or interfere with a federal officer so is just repeating that same language they've already heard as to what the charges and to give and the requested instruction i don't see where that in any way further clarifies that the term forcibly applies to directly in some way to do bodily harm to the officer so i am attaching my definition of forcibly to all of those means and there is certainly legal support for it from a number of settings  including the given instruction of forcible saw saw it as an intentional threat or attempt to cause serious bodily injury when the ability to do so is apparent in the media i don't see where that's any less you know any materially different from what you asked the women we were i think the difference is that think it creates confusion even where you list the string of means along with the term forcibly charge or in the chords in essence recitation of the charge but then when you actually define would forcibly is you only use it in the context of assault actually which is which is in our face which is the one office here that actually has an element of force that is inherent to the crime in order to have an assault one actually muzz must attempt to use force or attempted to bodily harm to another or threaten to do bodily harm in such a manner or under circumstances where the that the better practice would be to explicitly tell the jury that forcibly our jury instructions is our standard review jury instructions that they'd be better physically perfect or do courts have leeway in how they write these things that normal people would understand that yes the court does have leeway but do we want to write them down when normal people understand them you would agree with that while yes judge in hightower didn't we say with an identical instruction almost the exact instruction you're quote rather than elaborate on the terms used in the statute the court the court in effect simply read the statute doesn't vote in the indictment as here the instruction excuse me plainly worded included the word forcibly and the requirement that the agent engaged in the performance official duties we think the language of the statute is understandable to the man on the street and needs no elaboration you know i think the difference is that they're going to and even hightower the court with reviewing the charges under a plain erro standard is no doubt about that but it's specifically said even with plain error that giving it is enough for understandable to the man on the street or the woman on the street and needs no elaboration best truth but the court is essentially saying that it would not be a miscarriage of justice let me ask you this as i understand the defense the defense was intent issue in other words he intended to flee not intended to hurt everybody correct yes that why would forcibly matter to that how does that affect your defense if it was forcibly to this or that  rights issue issue and whether intention be applied to the use of deadly force element right yes that was the defense a trial why would this affect the defense even if even if we were to find that it required the metaphysical certainty that you're talking about because it was important for the jury to know that even for the means of violating the statute such as to impede resist interfere with etc that there still had to be an intentional direction of force and that that ties in your argument wasn't that there wasn't some force here there clearly was he ran over a guy the question you brought to the jury was listen he didn't intend to do this he intended to flee but he didn't intend to use this car as a deadly weapon  that's completely divorced from the forcibly issue is an athlete and that's what the arrington cases in fact in arrington the court actually said that it was unnecessary to a tad an element of intent flee and you drive recklessly recklessly and injured someone you are already protected under that a proper construction of these terms because the element of forcible which has an intent element would not be satisfied so so taking all that it bring it into this case that the defendants reckless driving of his vehicle which there may be some support for the in the record of this case it was important for the jury to be able to understand that his reckless driving in causing injury would not be enough for conviction there's still had to be an intentional direction of force at the officers so that that is why the instructions that we x four on both forcibly and use of a dangerous deadly weapon are important and then we get out in turn before you your time runs out when you talk about use of a deadly weapon your instruction on that as opposed to the forcibly aspect of it where that in our request to charge regarding use of a deadly weapon we aks that the jury explicitly be charged on on the terminology in our nd sentence that the defendant was use it as a dangerous deadly weapon and not simply as a mode of transportation that is a statement that you see recurrently in th case law in this area and it comes it is a direct quote from the arrington how is the non essential repetition of the inverse of the st sentence which was given so the st sentence is to be a deadly weapon that has to be used to such a sensually the car has to be used as that and the sentence just as an inverse of that if he doesn't use it as that then it isn't a dummy weapon why do you need both why would the court not say i'm giving the st one and you can argue from that which is exactly what happened the st since that was actually given from a charge right wasn't  well yes it was given yes but the word for word the difference is the thing is that the court actually took only really focus on capability of the vehicle is simply says the court took the took the phrase a motor vehicle is a dangerous mr guns it needed to find that mr gumbs acted forcibly and that he used his motor vehicle as a dangerous or deadly weapon and the district court's instructions properly allowed the jury to consider the defendant's defense of accident or mistake not only because of the force and dangerous and deadly weapon instructions but also because the court instructed the jury on the meaning of knowingly and willfully which explicitly told the jury that knowingly and willfully means intentionally and not by accident or by mistake i'd like to start by addressing the forcibly instruction and then move on to the dangerous or deadly weapon as the court recognized earlier today the language of the jury instruction tracked the language of the statute it told the your honor there are cases as mr graham's counsel indicated that do address language i could be more explicit language where the court instructs the jury in order to convict the defendant you must find that the defendant acted forcibly or you must find that the defendant forcibly assaulted forcibly resisted forcibly opposed etc but the defendant in this case didn't request an instruction like that the defendant instruction didn't add anything to the instruction that the court already gave  d an additional issue here is that the use of a deadly weapon instruction actually also substantially covered the force instruction that the defendant requested because it wouldn't have been possible for the jury to convict mr ganns without finding that he used force that is the use of a of a motor vehicle in a way that was capable of causing death or serious bodily injury necessarily supplied more than the minimal amount of force that section  event the jury instructions didn't impair the defendant from asserting his defense because he didn't have a defense that there was no use of force his defense to the extent it relates to force at all was that the force wasn't directed at anyone which is really more of an intent requirement and was also covered by the instruction that made clear that the force had to be towards an officer thoughts the nd element that the jury was instructed where it was told that the person forcibly assaulted resisted impeded et and preclude in any way the jury instructions facilitated that defense by telling the jury that if it was an accident or a mistake they couldn't convict that was one of the elements was that he acted knowingly and willfully it just was not a specific or as good as it could have been i think it was very clear and courts across the country including this court have upheld jury instructions to that effect but the fact that the defendant can conceive of the language that could be more clear which i don't think he actually request in this case but the fact that he can conceive that doesn't mean that the jury instructions as given didn't properly guide the jury as far as the use of a dangerous or deadly weapon and we've explained in our briefs why plain error review applies here will will rest on that the only thing i would note is that all of the cases and the evidence ferrie ruled that our side in the defendant's reply brief apply to motions in limine a not jury instructions which is governed by a different rule and there was no objection made at any time during the nd trial to the motor vehicle jury instruction but in any event regardless of the standard of review that there is no error here and i think that the best way to see that is to just look at the instructions themselves the  sentence was given the nd sentence as the court recognized is entirely duplicative of the st and to the extent that it is trying to impose a specific intent requirement that's a an intent requirement that doesn't exist in the statute the court held in at injure and the supreme court held in feel that section one hundred and eleven dollars doesn't have a specific intent requirement it's a general intent crime and so to the extent the defendant was trying to instruct the jury that he must have intended to use it as a deadly or dangerous weapon in order to injure or kill that requirement doesn't exist the rd sentence was to show that a weapon was used the government must prove that it was actively employed in some way to further or advance the forcible assault resistance opposition etc with a federal officer the concept of actively employed comes from firearm cases distinguishing between possession of a firearm and actively employing it in some way i think it's very confusing in the context of a motor vehicle but it's also covered by the use instruction because if you are using a car you're necessarily actively employing it in some way if you're just sitting in your car you're neither using it or actively employing it covered by the instructions and the th sentence use can occur through intentionally displaying a weapon during the course of forcibly assaulting resisting opposing and puting stroller interfering almost seems inconsistent with the concept of use because you could be sitting in your car and be intentionally displaying it and you wouldn't be using it in a way that is capable of causing death or serious bodily injury and so you can see where that how that was taken from the  offensive way to the general dressed of all of these arguments is that mr gumbs wanted to be able to argue to the jury that he didn't intend to use his car to kill anyone he used it to flee and part of i think the misunderstanding here in citing the case of arrington is that when arrington refers to using a vehicle purely for flight it's not referring to the defendant's state of mind it's referring to the action the action of using the case purely for flight or using the vehicle purely for flight and an example of that is the sofa and case that mr graham cited in his reply brief from the western district of texas which is a case where the defendant pulled up at a border patrol stop and was being asked questions by the agent and then while the agent turned his head the defendant drove away that's an example where the action is just purely flaying that's not what happened in this case where mr gumbs was surrounded by federal officers they blocked exit from the parking lot they were standing next to his car trying to open his door and he decided to slam on the gas and pin inspector against a car while fleeing from the parking lot the fact that his end goal may have been to for really does not mean that he was using his vehicle purely for flight and in any event he still made that argument to the jury even though it wasn't part of the instructions and so this didn't impair his defense at all he stood up and argued in closing to the jury that he didn't have any intent to use his car to harm anyone and the last thing i would just add on that point is that as to the three officers who were furthest away from mr guns either behind him or near the exit of the parking lot the jury acquitted which shows that as to the people for whom it could arguable of arguably be said that he really did use his vehicle purely for flight that he didn't direct force at then that there was just forward movement of the malibu  to those people the jury thoughtfully applied the jury instructions and acquitted and so it shows that the jury did understand those during instructions and understood that they had to apply them individually as to mr gumbs is intent and actions towards each officer i don't believe that the issue of the jury's question or the lesser included offense came up and opening so unless the court has an questions about those we ask that mr combs conviction be affirmed thank you thank address an opening and the government didn't have an opportunity to respond to an argument you didn't make an opening ok you are the court's instructions in this case while it did use the term knowingly and willfully the court's instructions never attached to term knowingly and willfully with regard to an actual direction of force at the officer undercut because the jury can't find in the instruction that they're what i'm arguing arguing to them is really a viable defense and that's really what my claim is in this case for mr gums that we didn't have the support in the law and i would say you described in the indictment and the person were the officers here does not apply the knowing in willfully to the force having the committing the committing whatever act is prevented with force against those people is not exactly with instruct opposed to force being in the context intentionally directing force at an office but those who argue and they were never told it had to be knowingly and intentionally done that goes back to hightower which seem to suggest that everybody would know what force means it's not that hard of a time or concept right you run away again i guess to to reiterate what i'm saying let me ask you this you're an experienced trial attorney jury instructions as you know in these cases can run dozens of pages sometimes there are lots of words that we don't to find because otherwise they would go on hundreds of pages right those terms undefined actually did undercut our ability to effectively present any defense of lack of intent or accident in with regard to me just briefly touch on the issue put state where effectively preserve that judge and i think that when you look at the charge conference that actually occurred during the nd trial of this case which took place on december th two thousand and seventeen  documentary number one hundred and fifty six dollars basically the court actually go through every one of the jury charge that the defense had already submitted so the court was aware of those charges the court addressed each one of those charges and instructions to follow those and i rested upon the instructions that are already filed and to underscore and to make clear that judge cohen actually was well aware of the fact that i wanted those instructions and that he was overruling my requests for those after the jury's question came back during the course of the trial x again just now will you give my instruction because the instruction of them asking for goes to the question to do is actually actually act asking judge cohen says i've overruled your motion for that instruction so you don't have to continue to make your instruction to mine not given given that portion of your charge it didn't i don't know why we have to keep going over that so the quite basic tells me you've already preserved it to the court say that you're the defendant filed