percent even fifty percent certain that a defendant was justified in possessing a firearm is required to convict the defendant nonetheless under the formulation of the defense propounded by the government and adopted by the district co as likely as not innocent the jury would be required to convict the defendant because the defendant can only under the government's formulation meet the issue if you proved by a preponderance of the evidence that he meets the elements of the d your honour's mr beazley argued that he and it turned out to be an unloaded gun away from a person who was causing danger to other people and to himself and that he did so for good reasons under our formulation the government should formulations in any other context and i think that this is a very important point that was not adequately addressed in the government's brief in other words if there is a fight and a person takes any other kind of a weapon a person takes a baseball bat or takes the element of the crime and element of the well it's all to the general intent crime so all the defendant has to have been proved guilty is that he intended to strike another person and so it is actually it's not an element of the crime that he intended to cause harm in other words some defense doesn't go to the issue of whether the defendant actually did or did not intend to strike a blow with them with a hand or a baseball bat or anything else it goes to the issue of why did the person do that what were their motives  jewing that and so what happens under the government's formulation is that if we take the exact same example of a street fight and in the course of that fight someone causes even even fatal injury to another person  is required to prove beyond a reasonable doubt that the defendant was not acting in self defense assuming and this is the important info an important part is telling the defendant meets his burden of production in other words if the defendant introduces enough evidence such to justification that the answer to the answer that question is that the defense that mr these they raised is exactly analogous to defense of self or others and is actually much less similar to the defense of the if you had a person engaged in importation of drugs into the united states and there was a long convoluted story about all of the events that happened in mexico that created an internal pressure to go through this long drawn out plan direct here it was the that whether it's called justification or something else it was self defense or defense of others in other words mr beasley grabs the gun in a crisis situation the split second decision in order to protect himself and others it is exactly on all fours with defense of self and others and only somewhat similar to the direct the other issue and related to that is indeed mr masters the court was concerned about the government's inability to possibly dealing with a routine felon in possession case why when the dept of defense has met its burden of production has introduced credible testimony that the gun was used for defense of self and others there's absolutely no reason why that creates an insurmountable and in my office i've been there for four years and i believe that this case that only one other case brought out of our office in that time we're able to raise the justification defense of self or others and the reason for that is the vast majority of guns are not are found in cars are found in home they're not that they're not grabbed away from somebody and that in a highly pressured situation and i think that's almost every case that's reported on the defense whether it's called defensive stuff or others or justification involved that kind of unusual circumstance  proving that he cried out somebody pretty thoroughly we would expect them to go on to prove that it was on privileged not every boxer would have a prime aphasia case of assault against him we would expect that it was there would be proof of that not lack of privilege right i think actually the issue is can and when you come to self defense once that becomes a factor that would be a privilege that the government has to disprove now in this case the government could prove this man is a convicted felon he possess a firearm and it progressed it wouldn't have to go into any other  legal alternative and the court rejected that argument and said that the phone focused on the time period the true date time for which which in which the defendant had taken possession of the gun the court did not find that the defendant was precluded from having this defense simply cia agent for a relatively short period of time three years had no experience that he spoke of looking at foreign firearms and ultimately ultimately reached this conclusion in a way that any of us could have reached the conclusion if we had been so inclined which was that he looked at manuals and compared it to the gun issue and said there are similarities between markings on the gun and the manuals when it didn't match up in other words when there was no manual for which there were unknown person without providing a picture of the gun photographs of the gun or even the actual gun she was to this other expert it was then that he said that you could determine under supposed person had said that the gun was manufactur actually confront the person on who he was relying for his expert opinion and i believe that this court has made it very clear that an expert is not supposed to while an expert can rely on otherwise inadmissible material an expert cannot take the stand and say this  there was simply insufficient evidence in particular because this gun resembled a gun that was used by the nazis in world war two the reference material specifically the where of counterfeit markings in other words if this were just and wesson or some other some other gun that's very common you wouldn't think that there would be a danger that there would be counterfeit guns that were similar however the reference materials specifically said that anyone examining this gun had to be where counterfeit markings and that when the expert looked at the gun he simply discounted variations by saying i think i have found variations which again is circular reasoning finally doesn't really go to the weight of the evidence rather the expertise i believe it does go to the weight of well there are two issues the first is that i don't believe he had a reliable methodology and herman it that the court said just because this agent is used to interpreting conversations with respect to sufficiency of the evidence under article twenty nine motion and you're as if i would reserve two minutes for my rebuttal but the final point i wanted to make with respect to the commerce clause is that i'm aware of no case in the circuit or anywhere else that deals with a gun that never actually moved in it was taken just as much that stone from the graveyard might have been it was in the mentality it never moved in commerce it was never purchased by anybody and it was never when it was brought into the united states it was not brought in as part of the chain of commerce thank you thank defenses are closely related and in fact if you look at the elements of the raft they are first that there is an immediate threat of death or serious bodily injury to the defendant or another person second a well grounded fear that the threat will be carried out and third a lack of reasonable opportunity to skate through skate with the right and harm those elements are just like the elements of a justification offense and it doesn't answer the question say that because the defense is based upon a threat to another person or a threat to a defendant there for self defense a defense to committing a harm against another to rest in contrast never will could justify something such as murder it was never a justification for committing harm against another person it was always the justification for committing another type of crime considerations when allocating the burden of proof on the defense and what it said was it was practically practical considerations relevant to how the court would formulate its federal procedural rules and a court went on to say that it's not practical to require the government to prove a negative the absence of the raf's beyond a reasonable doubt and to quote the court said to require the government to prove beyond a reasonable doubt the absence of the ras would create a standard that would be nearly impossible to used quite broad language in the biggest mass just to point out the difficulties inherent in requiring the government to prove a negative and in that case this court rejected the idea that the dressed offense to shift from case the fake case the pending on the terrible which goes the other way and makes the point that it would be more prudent in reassigning the burden which technically could be done constitutionally but be more prudent to look for some sort of affirmative the matter of federal common law and said that the defendant should bear the burden of proof on the defense as a matter of federal procedural rules there was no congressional statute at issue there there recognizing that the fans there's no congressional statute allocating the burden of proof if the court recognizes authority as a matter of matter of fact federal common law to formulate the defense and allocate the burden of proof tell but that the scorching have done that tell the fans for the proposition that this court violated some some separation of powers princip also favored requiring the defendant to bear the burden of proof in this issue and that's because the defendant is in the best position to prove his justification defense the defense is based upon facts and relies upon events that occurred prior to the arrest that are known mainly and sometimes exclusively by the defendant and those events are necessarily also antecedent to the arrest so to levon circuit held requiring the government to just prove justification beyond a reasonable doubt which place and i really realistic burden on the government i think that's particularly true when you take into consideration the procedural rules that apply want to defend it raises a defense like this and that so this is a case where the defense is always known to the defendant almost and sometimes exclusively down to the defendant and would be very difficult for the government to rebut beyond a reasonable doubt two asian was very similar to don't think it's enough that it was a series of threats over a long period of time and the defendant claims he took possession of the firearm because of those threats he said he went to the fleet over and over and over again but the police never helped him any go z the court held that the defendant was allowed to present a defense so in formulating the rule of practice it's not proper just to focus on one particular factual situation but the court can also look at the other situations in which the fence is presented and the fact said does the third justification element no reason illegal alternative refers to taking possession of the gun or maintaining possession of the gun after the police ordered him to stop the district court and the question is the third element refers to the entire period of a physician the defendant that instructions fine but i want you to add something else what the defendant now calls a corollary and what the defendant asked the court to add was that the defendant has to get rid of the gun at soon as a safe opportunity arises the district court rejected that proposed additional supplemental traction for two reasons neither of which were in beef of discretion first of this report said that the instruction the additional structure requested by the defendant w not responsive to the jury's question and that's true the jury was only asking about the third element the no reasonable legal alternative element second the district court said or found that the defendant theory of the case w that he had no reasonable legal alternative when he saw the police on the street corner because he was afraid of the police and that's why he ran and therefore his conduct was reasonable and you can find that argument page five ninety six of the record the government argued in response  nonsense the police said stop the defendant should've put up his hands and stopped so the parties argued extensively about the concept of reasonable reason and whether or not it was safe for him to give the gun to the police when the police arrived so the argument that the defendant wanted to make through the supplemental jury instruction was argument to the jury in closing arguments in the context of the existing instruction now on appeal that the instruction the defendant says he requested w that he have a reasonable amount of time to safely both of the firearm first but that's not what was requested but it's also not the law the law is that the defendant have to get rid of the gun as soon as he can and then the defense will wind when single as the defendant is safe from the alleged threat that caused him to take the gun you have to get rid of the gun as soon as he can and the other cases cited by the defendant relating to this proposition can change them or language nathan for example in closing argument defense counsel began yarning by saying he took the gun and he got rid of it as soon as he can so there was really no confusion that that was a requirement of the that's what the law required on lest he relied upon documents provided by the manufacturer you'll see that at page eight of the record so what he did was contact the manufacturer to obtain the records now the defense would like to say that his his opinion testimony was based only evidence of the guns foreign manufacture is sufficient to support a finding that the gun moved interstate commerce period that's what this court held in that case the evidence of the foreign manufacture with the markings on the gun karnik of example that is united states versus castro line which is often cited and in the papers or on or in that case there was just the only evidence in the record was that the gun was manufactured in new york and found in oregon and the court noted that the gun could have traveled in interstate commerce at some time although that may have been decades in the past and the court went on to say that that's not a sufficient evidence of movement in interstate commerce because there's no reason for the requirement to define it argues in its papers the holding was based upon a clear holding it for a period that the government would say was too long an issue that has really been generated on appeal by the jury's questions it was it argue it was it was argued to the jury the issue of duration and whether or not he met the third element but i think what does get lost on appeal your honor is that every element of this defense was disputed and not just the only issue in the case was and whether or not he held onto it too long because of the government the facts show that the defendant went to the tenderloin district which is yes but three blocks away with five other friends really beat another man and then at the end of the fight while the other man one of his friends was waving a gun and while they were walking away and the police were coming to defend it took the gun of the hand off he saw the police the police said stop stop he had the gun in his pocket at that time he kept on walking away the police police officer got the car told him to stop kept on walking towards i mean it seems the police officer approached him to defend both the down the street round of almost a block through the gun underneath a parked car attempted to throw it on our parked car but but it strikes me as if the issue is means that he disposed of in the wrong manner rather than at the right time and he as far as getting rid of it if you will he probably got rid of this quickly as he could if he did hand it to the police i mean if we're focused on time and that anyway that was fully argue to the jury about the duration and the circumstances of his party yes your honor if you look at the closing arguments you'll see that the the defense main argument or one of the main arguments was what different stuff and make the police would have gotten done five seconds later actually paraphrase from that argument i mean the government's argument response was he didn't try to get rid of the gun because he did some good thing he was he ran because he wanted to get away any just the gun so he can get away and he kept running after he threw the gun down all right thank you counsel during your time here expired possession is a term of art in which there are many cases that say that a person doesn't intend to possess a firearm and a person doesn't necessarily knowingly possess a firearm when you're dealing with very temporary possession so i think that the defense is bound up in the elements of possession of defendant has to know the characteristics of the firearm that make it a firearm under federal law they defend it has to also intend to possess the firearm so it is bound up with with that the elements of the offense regarding to mean just maestas the ninth surprise in the justification defense i just wanted to mention to the court that for months before the trial that the government litigator that we should not be allowed to present a justification defense in these cases it's never a surprise and your honor just very briefly two more points the difference the main difference in debate the duration issue is whether the defendant behaved reasonably we argued that he was reasonable in running across the street and throwing away the gun the government argued it was unreasonable but under the way the jury was instructed it didn't matter whether he behaved reasonably all that was whether he had a reasonable legal alternative and so even if what he did was reasonable if there was some other alternative the jury was required to convict him and that was our central bone of contention and the final point i wanted to ma briefly i would ask if the the government said that the ref the reference materials indicated there would be variations with the markings on the gun that's incorrect it was the expert not the reference materials and with regard to recently i would just refer to court this court cases