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FILED Appellate Case: 10-8075 Document: 01018702496 United States Court of Appeals Date Filed: 08/30/2011 Page: 1 Tenth Circuit August 30, 2011, PUBLISH Elisabeth A. Shoemaker Clerk of Court UNITED

Richard M. Bedeck, United States Attorney, Las Vegas, Nevada, for the Defendant. Appeal from the United States District Court for the District of Wyoming, David M. Win Jr., United States District Judge. Judge Win announced the judgment of the district court, pursuant to Judge Richard Laser's decision in United States v. O'Connell, No. 08-cv-01193-RDP, and found for the expellees. Judge Win entered a final order in accordance with that decision and, pursuant to Judge Laser's decision, denied the writ and remanded for reconsideration. 1 THE COURT: I'm sure most of you heard of it when it was a matter of a drug, not a firearm. But I know that some people have not. And the subject is interesting. The facts are interesting. The way they are described by the court and by both parties as well, I think, should give everybody pause. This is a gun that is used in this type of attack. People will say that this could be a firearm, but it isn't. To get that out in the open, as soon as you say “shotgun,” people think of a weapon. “Shot gun” has a derogatory connotation in this day and age. How can that be? The term “shotgun” is used to denote a weapon that fires pellets and other projectiles by means of a high-velocity shotgun, sometimes described as a lever gun of some sort, that shoots not just one round but many. And that's a problem for the defendant. The case was argued before Judge Win last fall and his decision, as I understand it, said that there were four elements to proving assault by use of a firearm. These elements are these. Number one, that the actor used a firearm in the assault. And, I should mention that I don't know. When did the defendant use the firearm? He's supposed to have used it to injure the plaintiff. If you look for the date of the attack in the transcript, the defendant states he used the firearm before, on, or about February 23rd, 2009. This is not, you know, the only way to describe it. That's a good way to label it. The second element is that the actor used a firearm as part of an assault. “Assault” was defined in the dictionary, it has different meanings. “Assault” is defined, it means to use violence on someone.

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