journey instructions that stated you know you have you have to prove the absence of direct beyond the government has to prove the absence of duress beyond a reasonable doubt were sufficient evidence to raise defenses raised yes  ok go ahead then you want to address whether there was enough to get to the jury yes so in this case there are four elements through the course  was saying the defend in this case witnessed a shooting in one of the iowa she reported the shooting and the identification of the shooter to the police and that's important to note that when there was no threat made to her she was very forthcoming and glad to cooperate when she received the threats that changed she moved out of her house she moved in with her sister because she was scared to be alone she stopped going to public events such as church her pastor testified that she was a very active member of the church not only going to  study to bingo the pastor testified that it was like she had disappeared after this she had received the threats the defense sister testified as  the evidence of the threats the sister testified that she had received or had overheard talk at the beauty salon of the threats that this shooter mr what she heard from a customer in the beauty salon something that wasn't clear as to who she had heard it from also there was evidence that the defendants nice also heard the threats from from people in the well they heard that there would be harm done to miss miles if she touched if she testified against the shooter now we know that the shooter knew that she had earlier given information given earlier identification because in a defense exhibit a which it was a search warrant that police obtained based upon miss miles identification her name was clearly listed in that application for a search us a somebody at a beauty salon that she would be harmed if she testified well it did the did well person at the beauty salon identify who made the threat i it's our position that we don't even have to show that there was a specific threat there was a threat made does it have to rise to the level of getting something in writing well no but does it harper say it's got to be it b d a it and it has to induce a well grounded apprehension of death or serious bodily injury and then that's proven are dirty dirty as they have to be an absence of any alternative like goal of the next week two weeks from now or a month from now it does not require immediate going to the nd minute me going to the nd point  would be an any necessity defense right you start up i've got this horrible thing that's happened to me my choice is either going to get to die or suffer serious bodily injury or i or i break the law that's all this really is right i mean it's  and i know that the analysis is just slightly different but but that's the deal and so the question becomes is is why i want the why weren't there reasonable alternatives i mean this is a generalized threat there's no person w their job she thought that she did not have enough evidence of the threat that was made to her so was an imminent nuffin it was too generalized right no i respectfully disagree why couldn't she have simply decline to answer the questions i mean you know she testified as opposed to not answer your questions if you look at what happens with credit grand juries you know every day there are people lock in and say i had pocket and then everybody knows exactly what the situation  grand jury there are reasonable people they can draw inferences they a usa understands what happens they get a lawyer appointed they do some talking they try and all but the whole statement is very different than just declining hear this thing all the time and we appoint lawyers and and and usually they work themselves out what she did just she just chose to lie well i think the difference between this case and many of mentioned in that case the defendant was accused of stealing so farms and then stealing a chevy truck he claimed that a sheriff's deputy put a gun to his head and threatened him to kill him if you didn't do these kinds of she the defendant knowing gladly cooperated with the police at the beginning she received the threats no matter how specific or general they were i would hesitate to say that in most cases where threats are made their their son by a letter or text messages or made that explicitly in this case we have a woman who is so fearful of what happened of the thrust she received that she moved out of her house and that she quit going out in public so and this wasn't a case where she believed that the police would have not done their job she didn't have enough evidence of the threats that significant affected her life the case law shows and i'm running out of time as i started the defense has to only show that there was some evidence thank you for your argument as williams will hear from you review we agree that it is to novo i know that the defense brought up in their brief a perhaps improper burden applied by the district court the difference between the prima fascia standard in the preponderance of the evidence and the government further refinement you can give to that term i don't think that there's any technical refinement i mean i always think of it as a football field and so i think you know twenty yards i mean it's something it's certainly not preponderance it's not reasonable doubt in that it is not a tough issue to be it's one of the least standards of proof out there but it's something you do have to prove something to entitle yourself to th but but in this case the defense the defendant failed to prove any evidence with respect to the imminency of the threat and the reason illegal alternatives let's talk about what these threats were that she  overheard her sister or excuse me miss miles herself testified and she said her sister came to her shortly after the incident and said that she heard from sallust sister and mother that something was going to happen to her if she and her family i so that that's one source of a threat then in a subsequent event her sister was at the nail salon and overheard some girl talking that something may happen to the defendant if she was a snatcher if she cooperated that is the entirety of the threats that we are talking about and they happened in january of two sept two thousand and seventeen or earlier  served with her grand jury subpoena in march of two thousand and seventeen and appeared to testify before the grand jury in april of two thousand and seventeen so there is a three approximately three month gap between when any of these threats took place and her coming in her receiving notice that she was going to be required to testify a grand jury and then her ultimately coming to a grand jury there is no immediate threat in this case she is and i would go back to the the blankenship case from the circuit that that was the one that really struck me as if you're going to give a direct money that you owe me this man has a reputation for violence he's known to carry knives blankenship says just back it closes the door and then runs out of his trailer over to his dad's house gets a gun come back and he shoots the guy who's threatening him and his family that man doesn't get the dress or crew or ship and instruction in part because the threat was an immediate enough because the court found that he had time to put on a pair of pants leave the trailer and go to another residence so if that is not a media there is no way that the delay of three and a half months can rise to this level of immedia one's from the time that these threats were made all but the threat was if you testify supposedly the threat was if you testify so they wouldn't kill or before she testifies well it was if you cooperate i don't know if there's inform the night the night of the show she gave a statement at and then she was outed i mean they put her name in the search warrant and so she was exposed as a cooperate or in december to the community some sort of obligation to proactively go seek police intervention this woman had two opportunities where she was talking to police about that she didn't have to go and reach out and  right then and there when she was served with her grand jury subpoena they had called her and asked her to come to the police station and she did and they served her with a grand jury subpoena at that time she did not say anything to police about her concerns of testifying and then of course when she showed up a grand jury she spoke with an f b i agent before going into the grand jury room and didn't raise any concerns in fact if you go back and look at her testimony from the motion hearing you will see that what she  the f b i agent is that she spoke with her pastor and had a kind of come to god moment where she could no longer lie about the shooting and that she needed to tell the truth and that the truth is now mr sheets presents a lot of reasons that she was lying that she was fearful for her life other than her testimony that's just an inference that the disk that he argued before the just crime before this court the man who shot the man who did the shooting is her daughter's boyfriend her daughter is pregnant with his child and she has a lot of reasons other than fear to maybe not want  go to federal prison and i think that it's one thing when the states involved and when the federal government comes in with the grand jury subpoena and now your daughter's boyfriend is looking at serious time maybe you do have a motive to fabricate your story at that time that is not at all based on a well grounded fear of threatening behavior just just to clear one thing up you did talk a number of times about the immediacy of the threat that is exactly the language that was used at harm for  harper also says that a prior threat and then a generalized fear going forward is insufficient that is insufficient to to create the necessary facts to support  offense and i would submit that's exactly it if you want to construe in its best light the conversation at the nail salon as a specific threat that's a specific threat but it's been a generalized threat moving forward and that's the prior threat generalized fear moving forward and that's insufficient to trigger entitlement to this jury instruction and so the diff the defendant just failed to me alternatives available to her i'd also like to spend just a few moments on the guideline range calculation argument i know mr she didn't have time to address it davis has gone off course here with respect to the base often level calculation that literally the exact same circumstances and facts the only issue that davis doesn't address is whether or not this defendant knew or should have reasonably know when that  she knew that salah shot tyrion and so he felt like displaying a weapon what she argues though is that she had no idea if the shooting was justified or not and so you cannot apply that specific characteristic of the government with the go was convicted well she frames the issue as i think that she admits based on the record that she knew that salah shot collins but what she doesn't know is if the shooting was justified and she argues because we didn't the government didn't establish that the shooting was justified that the specific options characteristics should not have been applied  the defendant quote was leaving t c entered the residence and ballasts fired multiple shots at so that's what she stipulated to in her plea agreement it was in the p s r s one objected to and so i think that there is sufficient evidence that she knew that salah shot tyrion in the house so to kind of overcome the knowledge hurdle what she's arguing on appeal is that she knew that the shooting happened but maybe it was justified maybe salish didn't commit a crime when he was shooting at tyrone and because it could have been a justified shooting the it would be improper to apply that guideline range that he possessed the firearm in connection with the shooting and so what shit what the defendant would like to do is kind of go back and attack that prior judy cation so much s and because of that because we've already adjudicated that the only thing that the government has to prove is that she knew or reasonably should have no one that those facts took place which not immediate it could include immediate but it does are you know secondly the blankenship case that the government relies on saying if there was an immediate and that case well when  i mean because it's the ideas you have no logical alternative i keep looking at i mean you know and i just don't get that well i didn't have enough evidence therefore i couldn't go to the godfather part two there was going to have any of these you know movie godfather two there's a classic part of that movie where the witness was coming in to testify against requires some kind of specific direct threat that doesn't happen in a lot of times and i use that example with some hesitation because i know it's fiction but it gives c example  of there doesn't have to be a text message or the government wanted some message in social media it can be a general threat and i think in this case where we have the subsequent actions of the defendant and moving out of this and not going out in public anymore the threat was real all right thank you for your argument case committed and the court in due course thank you to both