[00:00:03] Speaker 01:
Looks like everybody's ready.

[00:00:05] Speaker 01:
Our final case this morning is 23-2097, United States versus Billy.

[00:00:11] Speaker 02:
May it please the court, J.K.

[00:00:12] Speaker 02:
Theodosia-Johnson on behalf of Mr. Billy.

[00:00:14] Speaker 02:
Mr. Billy was charged with a form of aggravated assault that required two elements beyond simple assault, the use of a dangerous weapon and intent to cause bodily harm.

[00:00:23] Speaker 02:
The government's theory was always that Mr. Billy's actions in pistol whipping Mr. Williams and discharging the weapon constituted the aggravated assault.

[00:00:34] Speaker 02:
The jury asked about two acts that the evidence brought forth, brandishing, which did not require an intent to injure, and pistol whipping, which did.

[00:00:44] Speaker 02:
It asked for the court to give the instruction that didn't have the intent, the court acquiesced, and then the jury convicted.

[00:00:51] Speaker 02:
Court, of course, has a duty to instruct the jury correctly, and if there are questions, it should answer them with concrete accuracy.

[00:01:01] Speaker 02:
Any answer has to be impartial, has to refer them to the prior instructions and remind them that this isn't considered an isolation.

[00:01:09] Speaker 02:
The court here gave a truncated definition of assault.

[00:01:15] Speaker 02:
And so doing, it made it appear that the threat to injure was the same as an intent to injure.

[00:01:21] Speaker 02:
This allowed the jury to convict him of aggravated assault when it only found simple assault.

[00:01:31] Speaker 03:
Wasn't there a separate instruction prior to this on the elements of the crime which included what you say is missing here?

[00:01:41] Speaker 02:
It did, but the jury was never referred back to those instructions.

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And as we know, simple assault is an element of aggravated assault.

[00:01:52] Speaker 02:
So by therefore just instructing on the simple assault, you're really just instructing on one element.

[00:02:00] Speaker 02:
It highlights that element beyond what is necessary.

[00:02:02] Speaker 02:
And prejudice is the defendant because it's the last word.

[00:02:09] Speaker 02:
This is also the critical thing, right?

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Whenever the jury interrupts its deliberations and asks questions, special care needs to be taken in that answer because of primacy recency.

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It's the last thing they hear.

[00:02:21] Speaker 02:
We know that judges have great sway over juries.

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And so when it's telling them that this is the only element that matters,

[00:02:29] Speaker 01:
It's problematic.

[00:02:31] Speaker 01:
But don't the instructions as a whole, so including the supplemental instruction, the original, don't the instructions as a whole correctly instruct the jury that intent to injure is necessary for a conviction?

[00:02:50] Speaker 02:
Yes.

[00:02:54] Speaker 02:
But even if you're correctly instructed in the beginning, if there's an error later that overshadows the correct instructions, which is what happened here, they were focused on the element of- There's only an error if we assume that they disregarded the other original instructions.

[00:03:15] Speaker 02:
Yes, but given what this Court has said about how important it is to take care in crafting your instructions,

[00:03:22] Speaker 02:
And the fact that they were not referred back to the previous instructions when this answer was given.

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Were they given copies of the instructions?

[00:03:30] Speaker 02:
I believe so, yes.

[00:03:31] Speaker 03:
So they had written copy to look at?

[00:03:33] Speaker 02:
They had written copies, but then they had the written note that said, this is what assault is.

[00:03:38] Speaker 02:
Essentially, what that answer was, was both these acts are assaults, and it didn't tell them that they needed to differentiate them.

[00:03:45] Speaker 01:
If the court had given the other sentence in the

[00:03:51] Speaker 01:
in this supplemental instruction.

[00:03:55] Speaker 01:
I read the papers, well maybe you wouldn't be here, but I think based on your argument, you would be here, no matter how lengthy the supplemental instruction was, unless it included, incorporated the original instructions, is that right?

[00:04:15] Speaker 02:
Yes, we would probably still be here, but I think the fact that it's truncated makes the error worse,

[00:04:22] Speaker 02:
you know, our assault statute is derived from the common law and it mushes up battery and assault and all these things.

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And so that's why the need to differentiate use of force, threat of force from injury and threat of injury is so critical.

[00:04:45] Speaker 01:
If there are no further questions, I will sit down.

[00:04:48] Speaker 01:
Why don't you just comment quickly on the waiver

[00:04:52] Speaker 02:
So the objection was always that no further instruction should be given.

[00:05:01] Speaker 02:
And it's like when someone's reading my brief for me, and they say, you need to take this out.

[00:05:07] Speaker 02:
And I'm like, eh, I think I'm going to keep it in.

[00:05:08] Speaker 02:
They're like, it's well written, but it needs to come out.

[00:05:12] Speaker 02:
And I think that's what counsel was doing here.

[00:05:14] Speaker 02:
He was being respectfully like, yeah, that's the definition of assault.

[00:05:18] Speaker 02:
But the only answer is no answer to refer them back to the instructions

[00:05:21] Speaker 02:
that they were already given.

[00:05:27] Speaker 01:
Okay, got it.

[00:05:27] Speaker 01:
Thank you, counsel.

[00:05:27] Speaker 01:
We appreciate your concession.

[00:05:31] Speaker 01:
Mr. McGinley.

[00:05:43] Speaker 00:
May I please the court?

[00:05:44] Speaker 00:
Matt McGinley on behalf of the United States.

[00:05:48] Speaker 00:
This appeal fails procedurally because of waiver and the failure to preserve both in the district court and an appellate briefing, and substantively because the district court properly instructed the jury on the definition of assault under 18 USC 113A3.

[00:06:03] Speaker 00:
Beginning with the procedural hurdles, as stated in United States v. McBride,

[00:06:07] Speaker 00:
The failure to argue for plain air review and its application on appeal surely marks the end of the road for reversal for an argument not first presented in the district court.

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And when an appellant fails to argue for plain air review and fails to preserve an issue, this court ordinarily deems that issue waived rather than merely forfeited and declines to review at all for plain air or otherwise.

[00:06:31] Speaker 01:
Why shouldn't we understand the objection here that no supplemental insurance

[00:06:37] Speaker 01:
instruction is proper, isn't that effectively saying the new instruction would mislead and confuse the jury?

[00:06:48] Speaker 01:
What other inference would you make?

[00:06:51] Speaker 00:
Thank you, Your Honor.

[00:06:51] Speaker 00:
I think it helps to look at what the test is.

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And so the test requires objection to the court's action, which we have.

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We don't want the jury instruction.

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And then you have a sufficient definite specific detailed and non-conjectural, or in other words, a precise ground for that objection.

[00:07:08] Speaker 00:
And when you look at the case law, here we have a wholesale objection, whereas case law is Aliyah v. Monarez, we have specific attacks to the court discussing evidence.

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And then the objection being that they can refer to their notes or that no comment on the evidence should be given.

[00:07:26] Speaker 00:
Here was, I don't know what's going to happen at this point, I don't think we should give an objection.

[00:07:31] Speaker 00:
And so that's the exact problem we have.

[00:07:33] Speaker 00:
is trial counsel objected in the district court just because this court can be brutal on waiver.

[00:07:39] Speaker 00:
And then on appeal, trial counsel or appellant counsel is now arguing that the jury was allowed to convict without finding all the necessary elements of assault with a dangerous weapon with the intent to do bodily harm.

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Specifically, now appellant's arguing that we convicted him without two elements.

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And so in an appellant brief, he assumes without more that abuse of discretion applies and fails to mention the plaintiff governs when trial counsel fails to make that sufficiently definite, specific, detailed, and non-conjectural objection in the trial court.

[00:08:14] Speaker 00:
Or as we just stated, the objection of the court's action and then identification of the precise grounds for that objection.

[00:08:22] Speaker 00:
And so we probably do have an objection.

[00:08:24] Speaker 00:
I don't know.

[00:08:27] Speaker 00:
The records are kind of clear where we have it's reasonable and then we should have given an instruction on assault.

[00:08:35] Speaker 00:
So there could have been waiver in the district court.

[00:08:37] Speaker 00:
But assuming we have an objection, that objection is still far too attenuated from the instant attack on the government's burden of proof.

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And it was still in light of this posture that appellant failed to argue Plain Air in his opening brief.

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And it was only when the government challenged Plain Air in waiver

[00:08:55] Speaker 00:
that appellant devoted a mere three pages in reply to that gauntlet of plain air review.

[00:09:01] Speaker 00:
And so with this, the United States' position is the appellant has waived review of his entire claim.

[00:09:07] Speaker 00:
Moving on to the substantive hurdles, that is if this court does apply plain air review, appellant can still not, he still cannot show that he's entitled to relief because district court properly did instruct the jury on the definition of assault.

[00:09:23] Speaker 00:
As stated in United States via Leah Monarez, when a jury does make it clear its difficulties, a judge has a duty to clear them away with concrete accuracy.

[00:09:32] Speaker 00:
And that duty is to guide the jury towards an intelligent understanding of the legal and factual issues, particularly when it's a central issue in the case.

[00:09:42] Speaker 00:
During the trial below, and as noted by the district judge on the record, the jury made clear it had an issue with the definition of assault.

[00:09:50] Speaker 00:
And so the district judge therefore complied with their duty and rectified that with a definition of assault, which is one that Appellants Trial Council admitted was reasonable on the record.

[00:10:01] Speaker 00:
But more importantly, the district judge gave a definition of assault that complied with governing precedent in the 10th Circuit in United States v. Joe, United States v. Wolfname, and United States v. Hathaway.

[00:10:13] Speaker 00:
And those cases tell us simple assault is the willful attempt to inflict injury upon the person of another, the threat to do so coupled with an apparent present ability.

[00:10:21] Speaker 00:
The district judge instructed the jury that assault means any intentional attempt or threat to inflict injury upon the person of another when coupled with an apparent present ability to do so.

[00:10:33] Speaker 00:
So when we look at what the jury actually asked, that is the definition of simple assault, which is a predicate for all 113 convictions, the district judge rightfully

[00:10:43] Speaker 00:
responded in accordance with Joe Wolfname and Hathaway.

[00:10:48] Speaker 01:
And it's important to get- You think there's some risk though, if I understand this, Johnson's argument that, you know, that later supplemental instruction really diverted the jury from the previous instructions and allowed them to, you know, allowed a conviction without finding the intent to injure element.

[00:11:13] Speaker 00:
So that runs a foul of 10th Circuit law, Your Honor.

[00:11:17] Speaker 00:
As we know, there was the governing instruction 11, which specifically charged the jury to find intent to injure and use of a dangerous weapon.

[00:11:25] Speaker 00:
And we had the instruction 2.

[00:11:26] Speaker 00:
They told them they couldn't disregard that instruction.

[00:11:29] Speaker 00:
So the 10th Circuit tells us in weeks of the Angeloni that we presume the jury follows their instructions.

[00:11:35] Speaker 00:
And so, appellant's argument is either that we cannot review the instructions as a whole, which is improper under United States v. Garcia, or now we're gonna delve into the jury deliberation process, which is improper under Alan v. Minister.

[00:11:51] Speaker 00:
And so when we actually get to the heart of the claim of what the jury was actually asking was about 113.

[00:11:58] Speaker 00:
And so that's important because 113 discusses assaults and all subsets of assaults on federal land,

[00:12:04] Speaker 00:
in this case Indian country, and not 18 U.S.C.

[00:12:07] Speaker 00:
111, which governs forcible assaults upon federal officers.

[00:12:12] Speaker 00:
And so with this understanding then, the question becomes why would the jury or the district judge instruct the jury on the difference between force under 111 and assault under 113, when 113 does not feature a force requirement, either statutorily or tacked on through the common law.

[00:12:30] Speaker 00:
we would add even more confusion to the jury about a force finding that doesn't apply.

[00:12:35] Speaker 01:
I think Ms.

[00:12:35] Speaker 01:
Johnson conceded that it didn't matter for her argument that the court dropped off the explanation about force.

[00:12:44] Speaker 00:
So Your Honor, then that again requires us to delve into the jury deliberation process, which the 10th Circuit has told us we cannot do under Alan B. Minister.

[00:12:53] Speaker 00:
And there is no indication in the record whatsoever

[00:12:56] Speaker 00:
that any confusion occurred.

[00:12:58] Speaker 00:
And the jury did specifically ask about assault which ran through the entire jury instruction.

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And so to get to Appellant's conclusion, we have to disregard the jury instructions as a whole and then delve into the jury deliberation process.

[00:13:13] Speaker 00:
And so with that understanding, we know that there was no diminishment by the trial court under 18 U.S.C.

[00:13:22] Speaker 00:
113 because it did

[00:13:24] Speaker 00:
define assault in accordance with Joe Wolfname and Hathaway.

[00:13:28] Speaker 00:
And so when we get to that, we know that the district court didn't err, and let alone have a plain err.

[00:13:34] Speaker 00:
And so assuming that we can overcome the err and plain err, appellate can still not establish that his substantial rights were effective.

[00:13:43] Speaker 00:
Under this standard, we have the but for the error claimed.

[00:13:46] Speaker 00:
The result would have been different.

[00:13:48] Speaker 00:
In that trial, we heard from Erwin Williams, who was John Doe in this matter, and he identified the appellant in open court.

[00:13:55] Speaker 00:
He told the jury that the appellant held him at gunpoint and tried to rob him.

[00:13:59] Speaker 00:
He told the jury that appellant pistol-whipped him on the side of the head, and he told the jury that appellant discharged around in his direction.

[00:14:07] Speaker 00:
We even heard from appellant's sister in Ramona Billy, who corroborated that testimony,

[00:14:11] Speaker 00:
and also told the jury that Appellant tried to influence her testimony during the trial.

[00:14:16] Speaker 00:
And that action, of course, goes towards his guilt.

[00:14:19] Speaker 00:
We also heard from Alvin White, another relative and Appellant's uncle, who provided his testimony, who was a co-assailant and corroborated the evidence.

[00:14:27] Speaker 00:
So, the district court's answer to the jury question aside, there was still sufficient evidence to convict Raydel Billy of assault with a dangerous weapon in violation of 18 U.S.C.

[00:14:38] Speaker 00:
113.

[00:14:38] Speaker 00:
So if there was a requirement for additional force language, or it should have been given, the result, or the standard was nonetheless met.

[00:14:48] Speaker 00:
Appellant did not sneeze that pistol across Ray Dell Billy's head, he forcefully smashed it across his skull.

[00:14:55] Speaker 00:
And that act was done unquestionably with the intent to injure him.

[00:14:59] Speaker 00:
And so at bottom, the outcome would have been the same.

[00:15:02] Speaker 00:
a conviction under 18 U.S.C.

[00:15:04] Speaker 00:
113 A3, that being assault with a dangerous weapon with the intent to cause bodily injury.

[00:15:12] Speaker 00:
Barring any questions from the court, I yield my time back.

[00:15:15] Speaker 00:
Thank you, counsel.

[00:15:16] Speaker 00:
Thank you, your honor.

[00:15:17] Speaker 01:
And there's some rebuttal time if you wish.

[00:15:26] Speaker 02:
First, McBride doesn't apply.

[00:15:28] Speaker 02:
McBride was a sufficiency of the evidence case where

[00:15:32] Speaker 02:
on appeal, they never argued.

[00:15:35] Speaker 02:
They just said that the standard for sophisticated evidence is essentially the same as standard for plain error, and I'm not even going to talk about it.

[00:15:48] Speaker 02:
And even in their reply brief, they maintain that position.

[00:15:52] Speaker 02:
They never talked about plain error.

[00:15:54] Speaker 02:
As we know, raising it in your reply brief is not fatal to your claim.

[00:16:00] Speaker 02:
And we still think that the actual objection was that no instruction should be given.

[00:16:06] Speaker 02:
And that even this case law says, when you say no instruction should be given, we can talk on appeal, like, this is the reason that the instruction that was given was problematic.

[00:16:16] Speaker 02:
And that's exactly what we're doing here.

[00:16:18] Speaker 02:
The decision remains no instruction should have been given at all.

[00:16:22] Speaker 02:
Nor was the evidence as clear cut as the state

[00:16:26] Speaker 02:
the government would have you believe.

[00:16:28] Speaker 02:
Obviously, the jury didn't believe he discharged the weapon they acquitted of the 924C.

[00:16:32] Speaker 02:
And even by the fact that they asked this question, no one had talked about brandishing as a separate assault until the jury brought it out.

[00:16:41] Speaker 02:
So therefore, we know that the jury is not fully convinced of Mr. Williams' take on the melee that was there.

[00:16:51] Speaker 02:
And I mean,

[00:16:55] Speaker 02:
And also, the fact that the jury was asking what it needed to decide.

[00:17:00] Speaker 02:
What facts were true?

[00:17:02] Speaker 02:
What assault is this?

[00:17:07] Speaker 02:
It's improper for you to tell you this is the assault.

[00:17:10] Speaker 02:
The answer was both of these are assaults and it elevates that one element beyond all others.

[00:17:17] Speaker 02:
Any further questions?

[00:17:19] Speaker 01:
Thank you.

[00:17:19] Speaker 01:
Thank you, counsel.

[00:17:20] Speaker 01:
You're excused.

[00:17:21] Speaker 01:
The case is submitted.