and we're going to try and reserve five minutes for a bottle and this is truly a heartbreaking case people of libya montana have been working living and plain and it's best just contaminated from a kid like that was just festus in the school the government would be prepared to show that the libyan am football including which i did rick's right falls within the definition of all is all the trouble i distrust us and falls within the new shop definition so either way whether we're right or the defendants are right as to which definition  moreover these are substances that the defendants themselves throughout their documents which are in our appendix referred to us that's just mistrust of form so this is somewhat of a sleight of hand on their part second moving on the district court  requirement out of some of the new shop regulations and ignored all of the other requirements  they haven't complied with any other requirements that are marginal surrender acquirements inspection requirements reporting requirements some of these requirements such as warning signs and fencing would have been incredibly helpful to the people of libya to avoid their respects his exposure but  the link between certain overt acts and the knowing indigent object this court held in clawson that section thirty two eighty eight provides a six month waiting six months grace period for bringing for bringing new indictment in the interests of justice require that these issues so forth in the superseding indictment be presented fairly she would jury that is the government's goal in bringing these appeals as mr a card has explained of the of struction conspiracy so he did allow for those purposes fair plenty there for you i'm sorry isn't there quite a bit there for you to go forward with you aren't that the cumulative effect of these workers that we have an appeal just or it's the government's knowing endangerment case these orders taken as a whole make it just about impossible for us to proceed at all in front of a jury and that is all the government to see here is an opportunity conspiracy that was a very big blow to the government's case by creating an affirmative defense that in effect requires the government to prove visible the missions of what is in fact an invisible and judge lloyd prohibited us work didn't allow us to use that for the purpose of proving it releases you know as far as the clean air act substantive counts are concerned the government needs to show annoying released of  that puts persons in places in danger of serious bodily injury or death and so it's we're required to prove these actual releases and what we intended to do was to utilize these historical records the  opinions that in fact after november nine hundred ninety nine there were hazardous conditions existing at livi that place those persons that came into contact with those or make life turtles into danger of serious who i think as far as i know they are presently stayed as a result of the bankruptcy proceeding and the bankruptcy proceeding is ongoing as we speak items of evidence inadmissible and that's why we're searching they say utilized the wrong legal standard in the sestina first of all the admissibility of this evidence and then some respects it colored his a rule for three analysis as well proof of exposures of sufficient duration and intensity to place another person in imminent danger of death or serious bodily injury and this is not the law in fact the government is not required to establish duration and intensity of a particular read the release in order to show imminent danger as this court set forth in kennedy versus college and the fact that a cause and effect relationship between agent has not been conclusively shown does not render an expert expert's testimony and admissible and so judge malloy is decisions with respect to be used by the government's experts of these building blocks really contradicts this course position and law and kennedy versus college in which you know allows experts to look at many many different types of information as long as it's something that is of the type that that expert can rely on infor opinion now the government wants to reserve five minutes for a vital i'm already into that time and so i'm going to sit down now unless you have some specific questions for me thank you your honors thank you counsel for the government says that judgment lawyer failed to apply the quote statutory definition of asbestos under the criminal division of the clean air act the problem with that argument as we explain in our brief is that there is no definition of s best us in the criminal provision o a description it's critical here to understand what chassis is cas is a database maintained by the american chemical society that essentially provides a goodly rafiq resource of of substances so you go on to cast and you have to pay a private database maintained by the american chemical society and in fact depending on which level of of the database you purchase you get different results in other words if you look in the record does not permit the filing of a new indictment or information where the reason for the dismissal was the failure to file the indictment or information within the period described by the applicable statute of limitations c clearly not not correct if you look at the gates opinion the gates opinion stands for the proposition that you have to have it in multiple objects a single conspiracy with multiple objects you look at each object  in that case the supreme court reversed the conviction because there there are one of the objects was sometime the other was that he's proved that the fact that there's only one single conspiracy alleged doesn't mean very the government it's already a very powerful tool in the prosecutor's arsenal and the one check on that is that the prosecutor it's a minor crime which is so dangerous in our society the check on it is you need an overt act within the limitations period that element of the crime goes to the statute of limitations that's why it's a special element it's not like any other element of the crime we have which can be cured science or if they leave out on interstate commerce those very problematic for them to try and smuggle it in kind of collaterally i mean they have this chart to do it and they really should have a clear rule for a clear understanding about what they can or cannot do i think basically you don't need to stretch clawson the way that they're asking you to stretch your perhaps in our family is that it's no error accident that the government is conceding that the mandamus standard applies because there's only a very limited issue and because of this particular posture which is somewhat unusual of the inter this stuff now for five or six years and just briefly covered the evidentiary points me he she recognised that these are the evidence of the government's talking about is very dangerous evidence for a criminal defendant that testimony that's based on that indoor testing because obviously into our air circulates in a very different way than outdoor air i mean you know that from smoking or whatever that there's just a fundamental difference and it's not fair to try to put people in prison for outdoor air they are your i'd respectfully disagree with that i think the government is trying to say that i think the key point here is that the government is relying exclusively on that evidence in other words if the underlying evidence is bad it is tainted in some way or is unreliable that as an issue before you all were not disputing that it's not applicable on it on the document but actually they said but it is where the government is trying to introduce testimony based on a single document in other words to the extent that they are experts  respect to the atheist you are studying you have two rulings for each one you've got an underlying for all three ruling which is the evidence itself and then you've got a seven o two ruling which is the government which is about the expert testimony and so example like this guy just got on the plane right i mean the going on a plane was a very good interesting for that guy to do because it's in a different enclosed environment than it is if you are you know just you know not in that environment is true for smoking all the ones that the district court focused on were in like around the one seventy five yeah and what we did was make clear that the conduct of there not only went to obstruction of justice but also further the releases asked for whether the cast registry is some secret formula that can't be figured out these defendants if you look in the appendix their correspondence back and forth to the side of the cast registry all the time the e p a website that includes the definition of us justices on you're not something that the district court should have decided as a matter of law based purely on factual assumption without any and further information now as to the i would be uncomfortable  general for the pollutant and to as you have to show that you work in accordance with the admissions standard the defendants have focused entirely on the first and say what if the first is true then we can follow that emissions standard regardless of whether it even applies to us to state how that emission contrast that to the facts that are allegedly indictment of children's planes in the pilot vermiculite and you can see just how far the defendants know invisible emission standards fall from the actual football standards that would apply there is no that u p a relied on for the civil cleanup and for that this court relied on in affirming that civil clean up in an earlier decision with no question about the reliability and use of as a basis to confirm that the people of the v face an ongoing danger second i experts were going to rely on a single document look at the expert disclosures that are in the appendix there's a voluminous list for every one of these experts of the multiple documents that they're going to rely on those those are in volume three of our excerpts of record it that going back to justice stevens decision in the joiner in the jointer decision that you have to look at these as building block sometimes the building block is going to be disputed evidence and other documents sometimes it's going to at one of the building how that could go to an element of defense leaves the expert entirely out of the equation contrary to the us justice stevens analysis and as mr mclean cited any of the decisions of this court these are the when it comes down to it many of these evidentiary issues involved the battle of the experts they can come forward with their experts to say that in doing indoor studies doesn't show anything about it out or that doesn't mean just because they can offer an expert to make that to get out of this evidence much of this evidence of this older evidence shows the protests and why it's important not just for knowledge but for the release and the endangerment issue as much of this evidence shows that under a wide variety of circumstances normal