difficult to talk about his overall position and less it's clear which premise is in play with respect to each claim and what i'm talking about specifically is the notion of whether or not because the government charged this case conjunctive lee and then offered a jury instruction that was also conjunctive i e that mr grech assaulted intimidated and interfered with the u s postal service employee claim gordon that it was then required to prove all three of their the problems of that conjunctive charge an instruction and our position of course is that y not quite there ok whatever they did at the trial level of this or any case and that on appeal they have to demonstrate that they actually prove all three of the ahead not to worry you know i think oh scrounging for it that's all right i just think that all three of the cases it's pretty clear that then the court goes through and checks to make sure that the conjecture prongs were for i was just looking for a change ok i think i thought i missed the case that's the you didn't who can jump in and therefore it's reversed ok it may have happened and i will look and check here in a minute and so getting to whether or not there was reasonable are actually actual fear of immediate bodily harm proved in this case i  argument for the jury there's no question that a jury can find all they will find is gordon was a postal employee and there's no question he used a weapon there's no question that he was waving it around and displaying and i think the question is for what purpose and that's the dispute the jury's going to resolve the court did not say the question is whether or not she actually experienced fear of bodily harm court didn't consider that and so in the court's mind it thought that rule twenty nine motions should be denied without consideration of the fear element and i think the record is pretty clear that she didn't experience fear i mean she was asked whether she felt that she was put in harm's way which i think mr really explains was kind of a way to dance around the more simple question of where you are afraid to government ask that it's an interesting concept we always talk about fear of bodily harm so i suppose you'd say that let's say i'm some really strong guy hit me but i'm not scared because i figure i'm going to take this guy out it doesn't mean i don't have any apprehension necessarily that's what i'm trying to explore instead so this lady she's faced with this idiot waiting this this night that are and threatening you better not do this ever again and she steps back and she says i got to pull this guy down from now but she doesn't you know i was trembling with fear does that mean she didn't have any  well she when she actually did though in her direct testimony say i it never occurred to me that i would be hard if we could take a step further and the case really does mean skeet we recite that whether true or not robert said he had no fear and then the court goes on the say if the jury literally believes that maybe there's not an assault but the fact that he says no fear doesn't preclude the jury from deciding not to situation that person would have to be fearful so we that the fact that the witness may say i feel no fear or i had no fear is not dispositive does not preclude the jury from reaching a conclusion that someone is appropriately fearful in that circumstance and we're going to convict and your honor that case is a situation where there's a couple that are standing pretty close to each other and of rather i think of the of the mayor and shoots a gun in between the two of them and i think that in that situation a jury problem there probably would be less of a sufficiency of the evidence argument then in this situation or you have a  ninety five pound man who's got a countering a nine inch knife a little man with a knife can do a lot of damage right but i still think that the jury can the jury is still left with a different situation than a guy and that's a  firing between two people but the jury is still left with the evidence and titling it to make the decision that it wants to make that that's that's not that's a different issue because the court actually although the instructions said that there is a she talked about the the a defendant being very angry a real scary lock i didn't want to get worse than i already was it was a bad situation and i don't know that it's impossible for a jury to decide it based on that evidence that that the victim or the person who was the target of the alleged assault was sufficiently fearful to close the circle well i suggest your honor that there was an investigation that preceded this case and the government knew which question it was going to  well that's that's not i mean i don't see anything the faulted for not asking the question if skeets says that even testimony saying he had no theory doesn't preclude the jury from reaching a different conclusion and i don't think the government can pop be faulted for not asking a question which obviously the defense is which came down from this court on monday and for the end of the case it deals with the factor of a prosecutor emphasizing as your instruction to the prosecution's advantage which it turns out that instruction was unlawful and therefore this court noted that although a prosecutor statements regarding jury instructions are they don't weigh seventy as the instructions themselves that the prosecutor statements should be taken into account by this court when it considers whether the jury instructions were proper and i think that the relevance of the case will be fairly self evident when when you're honest look at it in the context of this case thank you from the government thank you guys kaczynski again my name is lori i wasn't trial counsel and i didn't write the post race but i'm here arguing on behalf of the united states i would point the court to page nineteen of my brief this is to respond to a comment by judge kozinski i apologize that i don't recognize the other two prices but i do recognize your sister i may be only about whether the government conceded  point just to whether we had to prove three elements of this crime that was not a concession made by the government the government did its charging the conjunctive the jury was instructed in the conjunctive we gave ourselves statute but in this case just using skiis right we don't concede that there wasn't proof on all of the means of this statute including my dear ms gordon was assaulted we believe that there was a reasonable apprehension of fear no matter how you look at it in this case and just because ms golden was professional stood after two mr brett and did her job as  facing a nine inch knife that does not mean that the jury wasn't well within its purview in finding that she was a star started as well as impeded our interfered properly  twenty pages of of judges meeting off trust after july can't probably anyway this is something where the lawyers have it out in the courtroom and the judge take sides and take sides with the government says yeah you don't take in the context of the entire case and in this case we believe that they were given the not only orally but within the instructions that gave them the proper instructions and then there were there were there th certainly was a misstatement but there were other statements in the record by the assistant united states attorney talking about the reasonable apprehension of fear of ms gross so it's not simply that that was ignored by the government we didn't present evidence or argument on that issue this was a misstatement but in the context of the whole record we certainly believe it was harm let me explain what my what my concern might be here i'm not trying to certainly for you for sure where we want where i wind up but in the course of our argument that's when the parties are really focused on the significance of instructions when they hear instructions the whole we believe that they follow them but what's the significance of one instruction given after another is when applied to the evidence that's not so easy so that's one of the jobs in closing argument to relate the particular evidence in particular facts to the instructions they're given and at least some concern that in this context with the prosecutor arguing in so many words that the state of mind gordon is not something they have to be concerned about at least an appreciable chance that the jury will decide well we don't have to go there but it is an error and it needs to be considered i do not believe that definitely would be the last thing that they heard her but the last thing that they read were the correct instructions given to them in the jury box i mean like like they read in the jury  how do we know they didn't or they were given the instructions to read and to refer to how do we know what that had on them as well i mean i don't know how do we know they didn't put on they were given an indictment and instruction that charged all three and something and can you reason from that that the jury must have concluded that all three were satisfied and if you take your legal argument disputed and i'm not trying to get you to back off of that can you infer from that they must've concluded all three so even if as a matter of law they're misled with regard to the element of assault they still found interference and they still found intimidation and under the government's legal argument that sufficient to convict i don't think we can we know whether they found all three or just one or some of them found interference and so they had to find altering they were instructed in conjunctive we have to assume they found all free and i still think i mean the instruction actually i think the government is wrong about whether or not the affirmation of fear only goes to the assault wrong because the instruction says that first the defendant intentionally use force which reasonably causes a person to fear immediate vitally harm and so it's the use of force that brings in the fear and that goes with respect to assault intimidate interfere and the last thing they heard is let's just disregard this use of force and i would your honor is requesting of the government about whether or not the government corrected its position i would note that the three cases that the government cites to in its grief t m cooper and that city all involve situations where th where the mistake was brought to the prosecutor's attention and the prosecutor said you know what i'm wrong and so then the jury was actually instructed correctly about the evidence or the law it was different in the different cases and therefore the jury went back to deliberations with a correct view of the facts and the law in this case the government did not correct itself and this was an issue that was discussed outside the jury's view several times and then in the position you know we were arguing that you've got a proof here and the government was taking a position that it didn't it's not like it accidentally fell into making this mistake i would also note finally that the government has not argued harma stare in its brief and if you don't argue i was there you waive that argument thank you thank