order of protection issue sure and the second amendment claim it's my understanding from the argument that the the specific item that you're contesting direction of the protection order as indefinite in other words as what indefinite in light that's one issue so it is i understand it that is the crux of the problem in your view of the second amendment issue that is that it's potentially life time and my question to you is this did mr freiberg ever go back to the answer that might help what you have well let me let me ask my questions and then you can explain because is that enough vailable procedure to follow in order to reduce the length of a protection  order first of all we're dealing with tribal courts here and they're not as efficient and i don't mean that when you judge men away as some of the other courts that we're dealing with first of all secondly it was an interesting issue in this case which you're talking about i believe is the subject of the protection order was mr freiberg son who ultimately committed the offense at the high school so the question really when that son turns eighteen is there still a protection order  he who was the designated shoe tribal leader of the tribe to teach young men how to shoot and and women was the wife also protected under the protecti government has that in twenty twelve he went back to the court because he had violated the protective order that's correct is that correct that is correct and that was that and we'll get to that coll would separate two questions here because i think judge graber was asking you about first about a second amendment argument and whether or not whether or not you had difficulty making that argument and having tried to modify the  injunction on the if you're if you're now addressing a different point which is the whether the order whether the return of service should have been admitted into evidence because that's what showed that he knew of the hearing it was so let me ask you on that it seems to me you're making two arguments one is that this is not a public record are you making that argument yes during the civil the under the evidence rules yes in the second one is even if it is it's not from the nature of the evidence and that's a legal determination but as to the as to your major argument which is you can't trust this because the guy was the brother in law of the wife don't we have to review that for abuse of discretion i make an objection to this isn't a bit emitted because it was hearsay and you say it's it's not a public record but even if it is it's not sufficiently reliable given who served it that a fair summary of what you argue yes ok so as to the second part i'm really focusing on just one part of it now as to the question of whether or not there are sufficient and dishy of reliability and trustworthiness as the rule requires don't we have to defer to the t to the trial judge's determination that there were he heard the evidence he made a determination actually somebody came in and testified that it was important to the family that it be served as to that not a confrontation clause issue however i believe that the discussion was abused on that matter so that's my why whites did it must can is the only reasonable inference that it was served by it was purportedly served by a family member that he did he that he dumped it in the trash and didn't serve it strikes me that at the end equally reasonable inference and maybe even a more reasonable inference is that it would be a big deal to serve it because he was trying to protect his family well that wasn't an argument the government made  and somebody testified well no it was important that he served another family member said a member at the time we really wanted to serve because we wanted her protected is not enough from which the judge can make a determination of trustworthiness i don't think so i don't think the fact th any evidence or in which the finder of fact could make the determination if you're looking at the abuse the discretion issue the fact that there was actually testimony in this trial that a member of the exact words this is the most important thing in our family right now it's up nothing most important thing in the police department that contains thirty seven other officers who could have done the service doesn't that make it much more likely that service occurred if it was really really really important to the family that this protection order take a fact or occur then wouldn't that suggest that that family member definitely would have wanted to do it no i think it would suggest that somebody other than a family members the person that should do it that's a different question you were at where asked to look at what actually occurred and draw the miscible inferences from what did occur not what would have been better departmental policy that's not  us but if someone says this getting a protection order was super important to us and and i was responsible for making that happen doesn't think i'd like to get back to judge capers prior question about whether the remedy was available to go to the tribal court and have the domestic violence protective order lifted and whether that was an option this case given twelve so could you answer that question first and then we can get to crawford certainly he was never advised that he could come back into court and mend that order any time by fact that order which is the order which is amazing to me they were talking about a core constitutional right whether we agree with it or not politically second amendment right can be subject to a big boilerplate order that says that this box isn't checked then that though ok thank you is one of the problems on that that this issue wasn't really raised below their point to where the second amendment issue ok yeah and therefore you didn't need any record to respond to but judge a curious question or judge quavers question you're to you're doing your best to tell us what you know but had this been raised at the trial court presumably we would have had some some record on which to base the surmises i believe and is my notes are n d not very important i guess but the ninth circuit has not decided that issue as to whether now it's ok that i thought let me just say speaking only for myself i think it properly raised it would be a serious issue one of my concerns is it wasn't raised and so we don't have a lot of things a lot of the questions we're asking are ones we're asking that are on and record the d c circuit case that we've cited in our brief which i can give you the name of i minute if you like basically says when he dealing with this core constitutional issue like the second amendment then you have to do it you can raise that at any time anything and i think that's what we are talking about is like did somebody forgot in this in this circuit i'm aware only of the idea that a jurisdictional issue may be raised at any time but other issues if not raised even constitutional raise we review only for playing her when they are not raised in the district court i think that's correct and i think this is near let me go i want to let you give you a chance to get your justice because well i mean i guess i'm really asking whether the supreme court would view this return of service as testimonial hearsay well of course testimonial hearsay must be hearsay prepared with anticipation of use in the proceeding doubt that it was a civil hearing that's a really big good question because the documents which i've cited in my brief and i was going to get to indicate that this is a civil matter but if you don't come to court i'm going to send you to jail it says that on the top of the hearsay document that is at issue in this case exhibit number three at the top of that it says in bo letters if you do not comply with this order show up you will go to jail you know where to make that has to do with noncompliance that doesn't have to do with the proceeding at which the order is entered it considering whether to enter a domestic violence protection order he's proceeding involving the issuance or not of an injunction and i save an injunction  itself which is the basis what criminal sanction was imposed on your client boy i'm not normal and normally follows a criminal trial so if you're found guilty and they do something to you what they do to from my opinion as a father the raised at the lower court it is a plain air standard which applies and because this air with not playing in other words there has been no supreme court we're district court case that has ruled on this or settle this we may have some dispute about whether or not a permanent order is constitutional or not but there has been no cases where decisions on that may we ask it slightly different what's the government's position about whether a tribal court order of protection can deprive an individual of the exercise of his second amendment rights for the remainder of his life well your honor i think the tribal court has the authority to issue the protection order and i'm in no doubt no doubt and in effect then that has a residual effect of restricting his gun rights and in fact in the tribal code itself which is in the supplemental excerpts of record it says that the anybody who is under this protection order for the duration of that protection order cannot but that's a fire not we're not worried here it seems to me about whether the tribal law is constitutional we're worried here if we reach the issue about whether or not a statute which allows a tribal court order that may or may not be subject to being changed to deprive somebody of the exercise of his second amendment rights that strikes me as a series issue it is a serious issue but as you would point out this was not raised below and so this court doesn't even need to get to the merits i would say that although this protection order was characterized and has been called permanent or indefinite in the tribal code itself he did have the opportunity to go and seek modification and that was my question and so it is that portion of the tribal says the court in its discretion may upon request of either party or the knesset violence offender treatment program modify an order of protection so it was open to him to come to the tribal court and say i'm no longer a danger or i'm  moved to wisconsin or whatever and i want this lift that's at least an opportunity that he has and did not take advantage of that that opportunity was available to him and in fact although counsel said he didn't know about it i would point the court to the fact that he was convicted of violating this order in two thousand and twelve and at that time he came to court admitted that he had been served with this order actually was assigned counsel was given a copy of this order which said that it was not only permanent in nature but also that he had been served personally with it and he never raised any of those issues he never  know i read that as him saying he knew he was served to show up at the at the hearing where he was going to get anxious in that's the point what he said is that there were two times where he made the statement he made it  or made a statement about it it was during the i believe a september two thousand and twelve hearing where he went to the court was june twelfth of two thousand and june twenty ninth of two thousand and twelve when he showed up to quash a bench warrant and it was during that hearing he indicated that he about nine or it's what i'm looking at is the the bench warrant cooption that's supplemental experts a record three thirty one and that's just the order well i'd have to refer to my brief to find out  sure i look at the same document i've got it yeah it then is for is a statement that he made during his post arrest he indicated that he had been served he didn't say with what he said he had been served he decided to stay order of protection it doesn't say it in that on that order there was a tape that was of that recording that we made part of the record and i apologize i don't have that ok my fingertips but it was during that  y with the court where he indicates that he had been served about eight or nine years ago and then asked for a copy of the protection order so i think when you look at although it is it's not crystal clear there could be a reasonable inference that he had actually been served with the actual protection order i'd also say that there's some circumstantial evidence and about that and it's really because when he was in this  violate violation of the protection order proceedings after assigned counsel as i said indicated he received a copy of that order and on the order itself it's more clearly personally served he never raised that issue of an order of protection entered by the trial of the tribal court that was still valid at the time that it was entered in in two thousand and two and so in order for it to have been valid under even the tribal code he had to have been personally served or he wouldn't have known that the personal service issue could affect his constitutional right to bear arms at that point and he would have the same sort of in and of the challenge that well i guess i would disagree because in the tribal code itself and and remember he was he had counsel during this hearing it explicitly says that a person who is subject of a protection order cannot possess a firearms i would agree with you that in the judgment or even during the sentencing he was not advised of that explicitly but he did have counsel he i would assume that that would have been something that at least potentially could have been discussed i mean i don't know if it was or not so and even if  i would also say too that beginning in two thousand and seven he purchased a firearm and then after this violation he continued to purchase firearms he certainly was advised then when he filled out the a t f form forty four seventy three it's a question eleven h it says are you the subject of a court order restraining you from harassing stalking or threatening your child or intimate partner or child at that intimate partner and then in the acknowledgment section which he signed a numerous occasions it says i understand a person who answers yes to any question eleven b through eleven k is prohibited from purchasing or receiving a firearm that he bought and after twenty twelve after hearing is that that's correct in fact he started buying guns two months after that hearing and he continued to buy guns even though he was called back into court for violating well not for violations but for failing to pay the  modest fine that they imposed on him let me ask a question about your last point let's assume just for purposes discussion that the evidence was clear that he wasn't served with the original protective order is it your view nonetheless since the one was when existed and he knew about it that the answer to eleven be subject to criminal penalties well i suppose that's a fine point to draw on it he you know i don't know if it's a fine point the argument on the other side is there's not sufficient evidence that i was ever served you're saying well but he knew by two thousand and twelve that he had a protective order and he checked off this poxon so my question is assuming that to be true  never served but knew by two thousand and twelve that there was a protective order nonetheless answered incorrectly would that be sufficient to subject him to criminal penalties that was my understanding of a statutory scheme so what you're what you're asking is if he had not been here you're the one who brought up to two thousand and twelve and said well by two thousand and twelve you knew we had a protective order and he checked off eleven be so my question is is that fact those two facts themselves sufficient to establish criminal liability i would think that i do it not the way the statute reaches it it's not the way the central good statute reads that you have to have actual no right i mean entrapment argument but i on that point i would say that number one it's an abuse of discretion whether that instruction should have been given and under the circumstances because there was evidence that he actually had been served and had actual notice that and that he didn't make that fact known to the federal firearms dealers that that were so to put it differently it seems to me that if we were to conclude that he that the evidence did not establish notice for whatever reason then these convictions would have to be set aside wouldn't they if you were to conclude that yes you're pushing me to say yes i want you to say yes because it seems to me that's what statute says well that's what the statute i understand you don't think there's any way in the world we can conclude that that's not my question my question is that's an essential element of your proof it is an essential element ok is that a better yet a better way to put it for yeah if we can't prove that yes then then we're out of luck here as far as the conviction is concerned i would say though that when you look at the circumstances of the service of that route as well when you look at the evidence of service there's strong evidence that he was the circumstances surrounding it the fact that we did have this return that was filed with the court and the fact that he showed up in court with counsel was given a protection order and never raised it i think that's certain strong circumstantial evidence that in fact he was and combining in the reasonable inferences from the statements that he made can i ask you just getting away from those points about the motion for a change of venue when you read and characteristics of the community of the large size of western district of washington and that the news was up late only prejudicial at least by skilling standards but when i look at the lapse of time there are just a few months between the the shooting how do we weigh the skilling factor since at least some number of them would weigh in favor of mr freiberg argument it was an abuse of discretion to change the venue what you're i think that you have to first of all i would say that it's the defendant's burden to to show that there was a need for a change of venue but the other thing that i think what's most compelling here is of our dear itself there were fifty one jurors that were questioned they were given questionnaires and we questioned twenty two of them nine were excused for cause for a variety of reasons not all of which was because we read the accounts in the media and we've got our mind made up and nothing including our duty to follow the law is going to change that not all of them said that there were some that said that they simply couldn't be fair i would point out that three jurors did make it on on the panel but all three of those were question they had maybe heard the name they didn't have intimate knowledge of the details of or connecting mr freiberg to the shooting and the defense passed for them on cause they said that they could be fair and impartial and i think when you look at that that's that's the best evidence that there was no prejudice or we had a poisoned jury pool if you will and it's far is the skilling factors so if somebody has a change of venue argument is it your view that they waive it by then not challenging the seated yours because no i don't think they necessarily waive it but i think it's we can use the fact that they didn't challenge these jurors for cos to show that they weren't prejudiced by the least the defense passed on those people for caution meaning that they didn't believe that the actual prejudice that skilling was also looking after for edge this i agree but i think that we can look at the as showing that there wasn't presumed prejudice as well and to get to answer your point directly there are a number of factors that skilling raises i don't think skilling says that you have to give each one of the factors the same w you balance those and while you're right that the period of time in this case was it was about a year between the incident and when the mr probert went to trial and that argu is not the longest period of time but what we were able to show to the district court is that over that period of time the press coverage well it was very hot when mr freiberg was charged it kind of waned over time it would spike at different points but it's going to overtime and so we think that the passage of time caused this to someone say from the public side for a period of time and skilling i think it was like four years so it was a much longer period of time so that would became a greater factor but i think weighing the other factors the size of the jury pool the nature and content of the publicity being primarily factual as opposed to highly prejudicial i think those weighed very strongly in our favor and those are what the district court rule to find that the change of venue was not appropriate thank you counsel thank you mr brown you use your time but we'll hear you two minutes question your honor about what it was a civil criminal when we were talking about that page thirteen of our responses brief has the exact terms of the order in question exhibit three and exhibit to three keep in mind i think you do clearly have a good handle on the fact that there are two orders at issue here there's the original one come to court and there's the second one and there were the legal importance is the first order only and this is what it says page thirteen is an exact quote in in bold letters warning to the respondent mr freiberg by lation of this order with actual notice of its terms is a criminal offense of contempt of court and punishable by prison and or a fine you are notified that this court sells the jail time shall seek jail time as a remedy for the violation this court order and the respondent shall be responsible for the costs and of course ration you can and then it goes on to say you can be arrested even if the protected person initiated contact with you which is kind  so that answers that question is definitely a criminal matter secondly and frustrated myself a little bit and it's my fault because as probably should have started off with the whole change of venue children were killed there by my client's son that's going to affect you do i asked that question why not ask that question that would not even be an issue of this case had been tried in los angeles or san francisco then then you get to the whole venue issue and one of the things the courts the ninth circuit particularly has been really good about and what appropriate i think about is looking at the actions of the u s attorneys in the publish to the surrounding the case page seven of my response to brief has the exact press release from the press from the prosecuting attorneys in this case headline in caps father marysville school shooter charged with illegal firearms possession murder weapon illegally purchased in violation of protection order i'm reading still reading yes castle and you've exceeded your time so that that press release unnecessarily mentions all kinds of things about this case this case is about whether a person was properly served with the this and had an opportunity to go to a hearing and whether he was actually served by his brother in law that is what the case is about and it's apparently you clearly have understanding there's two orders at issue here mr milwaukee because he's an honest guy and a very good prosecutor did indicate the audio that is now part of the record that you're talking about clearly mr freiberg is referring to the second order not the first order which is the basis of the prosecution in this case but the second order which was the protection order thank you counsel you have you have exceeded your time and we understand your arguments i believe some of the case just argued you submitted but i want to thank you for being prepared so that's great i mean i'm used to being it is houston versus ke