[00:00:00] Speaker 04:
We have the next case this morning, which is 23-7041, United States versus Brown.

[00:00:09] Speaker 04:
And counsel, for the record, if you would make your appearance and then proceed.

[00:00:16] Speaker 01:
Thank you, Your Honor.

[00:00:17] Speaker 01:
Shira Keebel again for Mr. Brown.

[00:00:20] Speaker 01:
In this second argument, I'm discussing Mr. Brown's trial for killing his friend, Damian Martin.

[00:00:25] Speaker 01:
And the issue on appeal here is the denial of the requested involuntary manslaughter instruction, although on plain error review.

[00:00:33] Speaker 01:
And the main question is whether there was any evidence that would have allowed the jury to rationally acquit Mr. Brown of murder and instead convict him of involuntary manslaughter on the theory of the imperfect defense of another.

[00:00:46] Speaker 01:
And here we have the classic example of this imperfect defense.

[00:00:51] Speaker 00:
That's where you can show me the evidence in this case, counsel.

[00:00:55] Speaker 00:
So proceed.

[00:00:56] Speaker 01:
I mean, every lawyer has the evidence that they have and different amounts are required in different cases.

[00:01:02] Speaker 01:
But here we have significant evidence, right?

[00:01:04] Speaker 01:
This classic case is where you have voluntary intoxication that causes the defendant to misperceive a threat and act honestly but unreasonably on that misperception.

[00:01:16] Speaker 00:
Isn't that the name of the defense?

[00:01:19] Speaker 00:
Like impermissible or?

[00:01:21] Speaker 01:
Imperfect.

[00:01:22] Speaker 00:
Yeah, imperfect is the word.

[00:01:23] Speaker 00:
That's the very name of the defense that

[00:01:25] Speaker 00:
you may be entitled to.

[00:01:27] Speaker 01:
That's right, Your Honor.

[00:01:27] Speaker 01:
And here, I think the district court properly understood that everyone involved in this was high on methamphetamine, recognized that the government had zero evidence of motive, and also rejected the complete justification of defense of another, not because, quote, the defendant did not believe it, but because he didn't reasonably believe it.

[00:01:49] Speaker 01:
And here we have significant evidence.

[00:01:54] Speaker 01:
Not much, but we have significant evidence that Mr. Brown had been on a days-long methamphetamine bender with his friend, Damian Martin, that he would have known that Mr. Martin bought a gun during this time and that he had it with him almost always, even if it wasn't visible.

[00:02:10] Speaker 02:
Can I interrupt for just a minute?

[00:02:11] Speaker 02:
I'm a little confused.

[00:02:13] Speaker 02:
The gun apparently is in the bathroom after the murder, and Mr. Brown is holding the gun.

[00:02:23] Speaker 02:
where the gun was immediately prior to Mr. Brown rushing into the bathroom?

[00:02:30] Speaker 01:
So I would say a few things in response to that.

[00:02:33] Speaker 01:
One, we don't need to know.

[00:02:35] Speaker 01:
We have enough other evidence.

[00:02:37] Speaker 01:
Two, the testimony is that Mr. Brown picked it up from the counter.

[00:02:41] Speaker 01:
The counter in the bathroom.

[00:02:43] Speaker 01:
Correct.

[00:02:44] Speaker 01:
And three, we have habit evidence that this court can rely on.

[00:02:49] Speaker 01:
And we must draw all the inferences in favor of Mr. Brown here.

[00:02:52] Speaker 01:
We have habit evidence that Mr. Martin was carrying this with him all the time.

[00:02:56] Speaker 01:
So from this, and then Lacey Watson, the sister, didn't see who brought it in there.

[00:03:02] Speaker 01:
Combination of that, we view that in the light most favorable to Mr. Brown.

[00:03:07] Speaker 01:
Mr. Martin has that gun with him in the bathroom and Mr. Brown knows it.

[00:03:11] Speaker 01:
Mr. Brown would have known that his sister wanted Mr. Martin to get out of the bathroom, use colorful language to try to get that to happen.

[00:03:20] Speaker 01:
He knew Mr. Martin was not leaving.

[00:03:22] Speaker 01:
He knew that Mr. Martin was demanding physical intimacy.

[00:03:26] Speaker 01:
He had no knowledge that they had ever been consensually intimate with each other before and in fact thought that his sister was dating somebody else.

[00:03:35] Speaker 01:
And when he goes into the bathroom armed with that knife, what does he see?

[00:03:40] Speaker 01:
He sees his sister has wrapped herself in a shower curtain rather than allow Damien Martin to hug her naked body.

[00:03:48] Speaker 01:
He immediately stabs him, and then immediately says, he was going to kill you, Lacey.

[00:03:55] Speaker 01:
Lacey says, no, again, colorfully, that's not what was going to happen.

[00:03:59] Speaker 04:
I like that term, colorful.

[00:04:02] Speaker 01:
Go ahead.

[00:04:02] Speaker 01:
I'd love to swear.

[00:04:04] Speaker 01:
You don't have to tell us what you said.

[00:04:07] Speaker 01:
And even later, he hears that.

[00:04:09] Speaker 01:
Yes, his story changes somewhat based on that, but he never

[00:04:16] Speaker 01:
Even when he expresses remorse, he never waivers in the idea that he did this to protect his sister.

[00:04:24] Speaker 01:
I think the reasons we're here are not because of insufficiency of the evidence, but we're here because it just wasn't talked about.

[00:04:31] Speaker 01:
So that's why we're on plain error.

[00:04:33] Speaker 04:
Well, let me talk about plain error for a second.

[00:04:35] Speaker 04:
Why aren't you guilty of the same waiver on prong two that you accused the government of?

[00:04:42] Speaker 04:
I mean, as I read your brief, you conflate error and clear or obvious error.

[00:04:49] Speaker 04:
And therefore, why do I know that, discreetly, the error that took place here is clear and obvious?

[00:04:57] Speaker 04:
I mean, you're accusing the government in your reply brief of something that amounts to a briefing waiver.

[00:05:02] Speaker 04:
Why haven't you done exactly the same thing?

[00:05:04] Speaker 01:
I don't believe we conflated it at all.

[00:05:06] Speaker 01:
I went out of my way.

[00:05:07] Speaker 04:
You have one section.

[00:05:07] Speaker 04:
You don't have two sections.

[00:05:08] Speaker 04:
You have one section in which you use the word, it's clearly error.

[00:05:13] Speaker 04:
Well, that is not a discrete analysis of whether an error is clear or obvious error for purposes of the plain error standard.

[00:05:23] Speaker 04:
Why is that right?

[00:05:25] Speaker 01:
And Your Honor, in that briefing, we set out a separate section on what the law is and how clear it is.

[00:05:31] Speaker 01:
And the law in this case is very clear that imperfect defense of others is involuntary manslaughter.

[00:05:38] Speaker 04:
That's what the law is.

[00:05:39] Speaker 04:
The question is whether the law maps onto these facts in such a patent way that the district court would have understood that this instruction was required.

[00:05:50] Speaker 04:
That goes to the question of whether any error that you've shown based upon the cases you cite is actually clear or obvious error.

[00:05:58] Speaker 04:
And that is generally, because there are four prongs to plain error, that generally calls for a separate section to talk about prong two.

[00:06:06] Speaker 01:
And your honor, I don't believe we needed a separate section.

[00:06:10] Speaker 01:
I believe that I went through in that section and not only explained exactly why the law is clear, and I think it is patently clear, but why these facts clearly fit that law.

[00:06:22] Speaker 01:
It is very clear and it seemed to be clear to the judge

[00:06:26] Speaker 01:
that there was a subjective belief that the use of force was necessary to prevent imminent death or grave bodily injury.

[00:06:33] Speaker 01:
And that was patently clear.

[00:06:35] Speaker 01:
The government says, I'm not gonna say they conceded it below, but they say at most this is the imperfect defense of another.

[00:06:43] Speaker 01:
This is something that was right there on the record.

[00:06:46] Speaker 01:
These facts, the importance of them, what they mean, and the error, I think potentially induced by the government,

[00:06:54] Speaker 01:
not spoken up, obviously, by anyone, is this error that that was a type of voluntary manslaughter.

[00:07:00] Speaker 01:
And this court's law is very clear.

[00:07:03] Speaker 01:
If it wasn't clear before British, it's certainly clear afterward that these facts give rise to that imperfect defense.

[00:07:14] Speaker 01:
And it is very clear that that requires the giving of an involuntary manslaughter instruction, which is what was proposed here.

[00:07:22] Speaker 00:
Counsel, help me out here, because

[00:07:25] Speaker 00:
At the trial court level, the proper instruction was tendered.

[00:07:31] Speaker 00:
And when the trial court settled the instructions, he did not give your instruction, which would necessitate if it were so plain that the trial court should have given that instruction, but didn't.

[00:07:47] Speaker 00:
So you have an error.

[00:07:51] Speaker 00:
But if it was so plain, why didn't the trial court give it?

[00:07:54] Speaker 00:
What was his explanation?

[00:07:56] Speaker 00:
And there was none because there was no objection.

[00:08:00] Speaker 00:
So the question is, how do you benefit from that?

[00:08:05] Speaker 01:
In general, we don't benefit.

[00:08:06] Speaker 01:
I mean, we would have benefited by objecting below.

[00:08:08] Speaker 01:
We would have benefited by getting this instruction.

[00:08:11] Speaker 00:
But you didn't.

[00:08:12] Speaker 00:
That's the reason why I'm going back to where Judge Holmes is coming from.

[00:08:16] Speaker 00:
How is that error so plain?

[00:08:19] Speaker 00:
And if it was that plain,

[00:08:21] Speaker 00:
Why didn't you say something to the trial court?

[00:08:26] Speaker 00:
So it must have not been quite that plain.

[00:08:29] Speaker 01:
And Your Honor, it can be plain error based on subsequent case law.

[00:08:33] Speaker 01:
It could be plain error in the face of the defense's silence.

[00:08:37] Speaker 01:
The whole point is that we didn't object, and so now we have this burden on prongs three and four.

[00:08:46] Speaker 01:
We also have to show that it's plain.

[00:08:47] Speaker 01:
Mistakes are made.

[00:08:49] Speaker 01:
People submit instructions in the heat of trial, forget what they submitted, forget what the law is, forget to make the objection.

[00:08:56] Speaker 01:
I don't know why this error happened.

[00:08:58] Speaker 01:
I don't know if it was because we had this visiting judge from the District of Louisiana in the Fifth Circuit simply never had a case involving imperfect self-defense or defense of another.

[00:09:07] Speaker 01:
I don't know why the error was made, but that does not make it not plain.

[00:09:12] Speaker 00:
You were not trial court below this.

[00:09:14] Speaker 00:
I mean, trial counsel below.

[00:09:15] Speaker 01:
I was not, Your Honor, but we don't require perfection from the trial counsel.

[00:09:20] Speaker 01:
That's why we have this sort of second way to win an appeal.

[00:09:26] Speaker 01:
And what the law says is that we look to see, was there error?

[00:09:30] Speaker 01:
Is that error plain?

[00:09:31] Speaker 01:
Was it prejudicial?

[00:09:32] Speaker 01:
And then do we have this fourth prong affecting the fairness, integrity, or public reputation proceedings?

[00:09:37] Speaker 04:
And let me focus on three for a second.

[00:09:40] Speaker 04:
Or have you focused on that?

[00:09:41] Speaker 04:
What do we do with the fact that

[00:09:43] Speaker 04:
the jury had initially convicted him of first degree murder.

[00:09:47] Speaker 04:
I mean, does that factor at all into how we view the nature of the evidence that would have supported, whether that evidence would have allowed for an imperfect self-defense?

[00:10:01] Speaker 01:
No, Your Honor, for quite a few reasons.

[00:10:03] Speaker 01:
OK.

[00:10:05] Speaker 01:
One, we're looking at whether a reasonable jury could have

[00:10:10] Speaker 01:
concluded that this was involuntary manslaughter, had a reasonable doubt.

[00:10:14] Speaker 01:
And properly instructed, yes.

[00:10:16] Speaker 01:
So we have, for example, the Hicks case that was just decided where the issue was they weren't properly instructed.

[00:10:22] Speaker 01:
But I also think that these are not inconsistent, right?

[00:10:25] Speaker 01:
The idea that you have realized that you are going to be killing somebody, that you have made that decision,

[00:10:35] Speaker 01:
Whatever it is that we require, which is not much for premeditation, is not inconsistent with the imperfect defense of another.

[00:10:41] Speaker 01:
We don't require the person to have not thought.

[00:10:44] Speaker 01:
We don't require emotion.

[00:10:46] Speaker 01:
We don't require reasonableness.

[00:10:49] Speaker 01:
So I don't see that verdict as inconsistent.

[00:10:53] Speaker 01:
And I do see reaching that verdict because the jury was not properly instructed.

[00:10:57] Speaker 01:
So even if you were to discount the fact that

[00:11:00] Speaker 01:
The judge below thought that that was unreasonable and that this was an unreasonable jury.

[00:11:04] Speaker 01:
I don't see that as applicable.

[00:11:05] Speaker 01:
The government makes another argument, I don't know if your honor's interested in addressing that one, where they say, well, they rejected this kind of voluntary intoxication defense.

[00:11:15] Speaker 01:
But that was very different.

[00:11:16] Speaker 01:
That was so intoxicated, unable to premeditate, like can't formulate the thoughts.

[00:11:23] Speaker 01:
And that is different than intoxicated and so misperceived

[00:11:28] Speaker 01:
reality, but still was able to formulate the intent to kill and realize that they have formulated that intent.

[00:11:35] Speaker 04:
I get that.

[00:11:36] Speaker 04:
Does your argument for the instruction turn on whether he was doped, and I don't mean doped up enough to get the voluntary intoxication instruction, but just the fact that he was on methamphetamine, does that turn, your argument turn on that at all?

[00:11:52] Speaker 01:
No, Your Honor.

[00:11:52] Speaker 01:
I think that if we simply had that only one piece of evidence,

[00:11:56] Speaker 01:
I mean, obviously, you have to have some other evidence of what happened.

[00:11:59] Speaker 01:
But that one piece of evidence of he was going to kill you, Lacey, that is enough.

[00:12:03] Speaker 01:
That is introduced by the government.

[00:12:06] Speaker 01:
So it's not hearsay.

[00:12:07] Speaker 01:
But that would be an excited utterance.

[00:12:09] Speaker 01:
It would be a present sense impression.

[00:12:10] Speaker 01:
It is a statement of what happened, a statement of belief.

[00:12:13] Speaker 01:
And Your Honor, I know that the case law has focused on the testimony of the defendant.

[00:12:18] Speaker 01:
But that has been in cases where the testimony mattered.

[00:12:20] Speaker 01:
This court's job?

[00:12:24] Speaker 01:
is to look at what evidence was there and credit all of it in the light most favorable to the defense.

[00:12:30] Speaker 02:
Which would include his being, as the chief said, doped up.

[00:12:34] Speaker 01:
Yes, Your Honor.

[00:12:35] Speaker 01:
I think all of the other evidence matters to show how obvious this was, to show how prejudicial this was.

[00:12:41] Speaker 01:
but that that one piece of evidence alone would be sufficient.

[00:12:44] Speaker 04:
And I mean, we can include the methamphetamine, which I think you agree with.

[00:12:49] Speaker 04:
And I guess I just wanted to hear you say that your argument does not stand or fall on whether he was doped up.

[00:12:57] Speaker 04:
No, Your Honor.

[00:12:57] Speaker 04:
OK.

[00:12:57] Speaker 01:
All right.

[00:12:58] Speaker 01:
And if I may reserve the remainder of my time.

[00:13:01] Speaker 04:
Yes.

[00:13:20] Speaker 03:
Morning again, Your Honors.

[00:13:21] Speaker 03:
Lisa Williams, representing the United States of America.

[00:13:25] Speaker 03:
You have a tougher case here, right?

[00:13:27] Speaker 03:
Oh, certainly much different than the first one, Your Honor.

[00:13:30] Speaker 03:
Because at least here, as the government acknowledges in its brief, there is some evidence of his subjective belief, which is very different than the first case

[00:13:41] Speaker 03:
But what the defense is trying to do is, again, to push the bounds of Toledo and Britt and lower the standard for what is required.

[00:13:50] Speaker 03:
And what they would like this court to conclude is that as soon as there's any evidence that a defendant subjectively believed that he needed to act in self-defense or defense of others.

[00:14:00] Speaker 00:
Let me kind of get with you here in regards to that because our case law is pretty clear that for this defense, the burden

[00:14:10] Speaker 00:
on the defendant is very, very low.

[00:14:15] Speaker 03:
It's low, Your Honor, but it's not non-existent.

[00:14:17] Speaker 00:
Well, I didn't say that.

[00:14:18] Speaker 00:
It's very low.

[00:14:20] Speaker 00:
And I don't see how you can get much lower than what the evidence, forget about the meth, the statement that was made to his sister, which came into evidence, the statement which is made to the deputy sheriff, which is evidence.

[00:14:36] Speaker 00:
This is just me, not the court.

[00:14:38] Speaker 00:
To me, that is sufficient evidence that may warn that self-defense.

[00:14:45] Speaker 03:
Well, and that's the issue that this court, that is the exact issue that the court has to decide in determining whether there was an error.

[00:14:54] Speaker 00:
And I'm kind of giving you a heads up as to at this point where I am, so you better dissuade me of that thought.

[00:15:01] Speaker 03:
And here's what Toledo says, Your Honor, right?

[00:15:04] Speaker 03:
The evidence is sufficient for a reasonable jury to find in the defendant's favor.

[00:15:12] Speaker 03:
And that's why it can't just be any evidence.

[00:15:15] Speaker 03:
It has to be evidence sufficient for a reasonable jury.

[00:15:19] Speaker 03:
So there is a bar that a defendant has to clear.

[00:15:23] Speaker 02:
Not to believe that what the defendant thought was actually true,

[00:15:31] Speaker 02:
but rather the jury just has to have a reasonable belief that the defendant subjectively believed that.

[00:15:38] Speaker 00:
The word imperfect is the beginning of that instruction.

[00:15:43] Speaker 03:
And it's that a jury could reasonably look at this evidence and say, yes, you were acting an imperfect self-defense.

[00:15:52] Speaker 03:
So it has to be a believable, there's got to be enough there

[00:15:59] Speaker 03:
for a reasonable group of 12 people to believe what the defendant is saying.

[00:16:04] Speaker 02:
The government admits there's no other motive for him to kill his friend.

[00:16:10] Speaker 02:
I mean, that was in... The government admits there's no motive, period.

[00:16:16] Speaker 02:
Well, all right.

[00:16:17] Speaker 02:
That they haven't pointed to some reason why Mr. Brown would suddenly kill his friend.

[00:16:24] Speaker 02:
There is certainly evidence that they were high.

[00:16:30] Speaker 02:
There's a woman who testifies.

[00:16:32] Speaker 02:
They smoked methamphetamine earlier that day.

[00:16:34] Speaker 02:
Yes.

[00:16:34] Speaker 03:
I will absolutely concede that they had smoked methamphetamine earlier that day.

[00:16:39] Speaker 04:
And what effect does that have in this case?

[00:16:41] Speaker 03:
Well, again, I would return to what I said before, Your Honor.

[00:16:44] Speaker 03:
Lots of people smoke methamphetamine and don't kill their friends.

[00:16:48] Speaker 03:
So I don't think that the defense wants to talk about this meth-induced bin.

[00:16:54] Speaker 03:
It's not by itself.

[00:16:56] Speaker 02:
It's not by itself.

[00:16:57] Speaker 02:
Right.

[00:16:57] Speaker 02:
And you have multiple statements by the defendant that, for whatever reason, he thinks that his sister is at risk of rape or murder.

[00:17:13] Speaker 02:
Yes.

[00:17:13] Speaker 02:
I would agree with that, Your Honor.

[00:17:14] Speaker 02:
And then he's outside the bathroom door, and he plausibly heard her tell this gentleman to get out.

[00:17:26] Speaker 02:
twice and colorfully and he doesn't leave and Mr. Brown then comes in, sees him holding onto her while she's wrapped herself in the shower curtain and he stabs him.

[00:17:44] Speaker 02:
Isn't that enough to get an imperfect self-defense instruction?

[00:17:49] Speaker 03:
So the government would say it's not because of a couple things.

[00:17:53] Speaker 03:
And when we talk about what he's hearing in the bathroom, you know, Lacey recounted that conversation in great detail at trial.

[00:18:00] Speaker 03:
And she said, you know, I told him it was because he was rapping and he was annoying me.

[00:18:04] Speaker 03:
So if you're going to accept that he heard some of the things from outside the door, you have to accept that he heard all of the things from outside the door.

[00:18:12] Speaker 03:
And so he knew that she wasn't in danger.

[00:18:14] Speaker 03:
Whoa, whoa, whoa, whoa.

[00:18:17] Speaker 03:
The jury doesn't have to.

[00:18:19] Speaker 03:
It's not black and white, all or nothing.

[00:18:21] Speaker 03:
I just don't understand how it would be a reasonable inference that he would only hear a select amount of the conversation.

[00:18:27] Speaker 03:
I guess it depends on her volume when she said, get the F out of here.

[00:18:31] Speaker 03:
Well, and the government takes issue with whether or not she even said that because that's not clear from her trial testimony.

[00:18:37] Speaker 04:
But in terms of how we're construing the evidence here for purposes of the instruction, we're construing it in the favor of the defendant, are we not?

[00:18:48] Speaker 03:
You are construing the evidence in favor of the defendant, but that doesn't mean you can ignore the evidence that undermines the defendant's evidence or the evidence that supports the government.

[00:18:58] Speaker 03:
I mean, the court has to look at all of the evidence.

[00:19:02] Speaker 03:
We're weighing it instead of the jury?

[00:19:04] Speaker 03:
Well, you are weighing it on appeal to see if there was plain error in the court's weight of the evidence when it decided that a imperfect self-defense instruction was not necessary.

[00:19:16] Speaker 00:
Well, that brings me

[00:19:18] Speaker 00:
Because our discussion right now only gets you maybe the first base as far as, because you've still got to climb the ladder of the plain error that's involved in this question.

[00:19:30] Speaker 00:
So.

[00:19:34] Speaker 03:
And I do just, I want to make one other quick comment.

[00:19:36] Speaker 03:
I think it's really important evidence that the defendant brought the knife into the bathroom without seeing anything of what's going on.

[00:19:44] Speaker 03:
And evidence that this court can't ignore.

[00:19:46] Speaker 03:
That's probably what formed the basis for the jury finding premeditation.

[00:19:49] Speaker 04:
Well, that's entirely congruent with imperfect self-defense.

[00:19:52] Speaker 04:
I mean, the reality is that if he believed that Mr. Martin was going to sexually assault his sister, why wouldn't you bring the knife into the bathroom?

[00:20:03] Speaker 03:
Because the basis for which he formed that belief happens after he's already obtained

[00:20:09] Speaker 04:
If he hears her say, get out, and let's focus for a second on this question of how we view the evidence.

[00:20:18] Speaker 04:
If it is not entirely clear what the jury heard, but they did hear get out, why do we have to infer that they heard everything?

[00:20:28] Speaker 04:
I mean, what we know is the sister told him twice, emphatically, get out.

[00:20:34] Speaker 04:
We also have all the testimony to the effect that Mr. Brown was concerned

[00:20:39] Speaker 04:
that she might, you know, that this guy might have sexual interest in his sister.

[00:20:44] Speaker 04:
Well, okay, get out.

[00:20:46] Speaker 04:
He knows that there's some concern about that.

[00:20:48] Speaker 04:
Why wouldn't he go in with the means to deal with whatever the situation was?

[00:20:56] Speaker 03:
So again, Your Honor, that conclusion

[00:21:00] Speaker 03:
is based on some facts that don't exist, because Lacey said that her brother, the defendant, had no idea that she and Mr. Martin were having any type of sexual intercourse.

[00:21:10] Speaker 04:
No, no, no, no.

[00:21:11] Speaker 04:
That actually would cut against their argument.

[00:21:14] Speaker 04:
If he knew that there was already a relationship between them,

[00:21:19] Speaker 04:
That's one thing.

[00:21:20] Speaker 04:
If he doesn't know that, and so as far as he's concerned, this guy, Mr. Martin, is going to do something for the first time to his sister or do something that's unwanted, period.

[00:21:32] Speaker 04:
Do something, you know, regardless of what the relationship was before that, do something unwanted.

[00:21:37] Speaker 04:
Why wouldn't he want to take some action?

[00:21:40] Speaker 03:
And where is the evidence that he believes that?

[00:21:43] Speaker 03:
Because when he first comes into the bathroom, it's not he's going to rape you.

[00:21:47] Speaker 03:
it's he's going to kill you.

[00:21:48] Speaker 02:
Well, and can we ignore that?

[00:21:50] Speaker 02:
I mean, immediately after the stabbing, when the sister says why, he said he was going to kill you.

[00:21:59] Speaker 02:
I mean, he didn't have a lot of time to come up with an excuse, and whether he's right or wrong, it's pretty good evidence that's what he thought.

[00:22:10] Speaker 03:
You cannot ignore that.

[00:22:12] Speaker 03:
That is evidence.

[00:22:13] Speaker 03:
You have to consider that evidence in determining whether or not he has established sufficient evidence that a reasonable jury would buy his imperfect self-defense claim.

[00:22:25] Speaker 03:
And the government's argument is that that is not enough evidence under this court's precedence to trigger entitlement to self-defense

[00:22:35] Speaker 02:
And that's just the argument.

[00:22:36] Speaker 02:
I agree with Judge Balduck.

[00:22:39] Speaker 02:
We've set the bar pretty low.

[00:22:40] Speaker 02:
I think earlier in the prior argument, you said if the defendant gets on the stand and says, I believe this, it's a not.

[00:22:50] Speaker 03:
I agree.

[00:22:51] Speaker 03:
And I think that if Mr. Brown would have taken the stand in this case and said that,

[00:22:54] Speaker 03:
It would be a different issue.

[00:22:55] Speaker 03:
But we've already established you don't have to take this stand.

[00:22:58] Speaker 03:
You absolutely don't, Your Honor.

[00:23:00] Speaker 03:
And the example I gave was, knowing I'm arguing this case next, I gave that example.

[00:23:07] Speaker 03:
But that doesn't mean that it's sufficient evidence in the context of this case.

[00:23:11] Speaker 03:
Again, a reasonable jury, it has to be enough that a reasonable jury would believe it.

[00:23:18] Speaker 04:
OK, so if he hears

[00:23:21] Speaker 04:
I'm sitting outside the bathroom door.

[00:23:23] Speaker 04:
I hear my sister tell somebody to get out.

[00:23:26] Speaker 04:
She is in that bathroom taking a shower, so she's naked.

[00:23:31] Speaker 04:
So I hear my sister tell somebody to get out twice.

[00:23:35] Speaker 04:
And then I go in there, wrong as day, but I believe that that person is going to kill my sister

[00:23:43] Speaker 04:
Why don't I get the defense?

[00:23:44] Speaker 04:
And the evidence says that the first thing he said, so rape, kill, who cares?

[00:23:50] Speaker 04:
The point was he felt that his sister had a threat of an imminent harm and he acted on it.

[00:23:58] Speaker 04:
What else is necessary?

[00:24:00] Speaker 03:
Well, let's not forget that he barged into that same bathroom with that same man five minutes previous to that and felt that that was a fine thing to do.

[00:24:08] Speaker 03:
So in assessing the reasonableness here of these facts, this defendant brought his friend into the bathroom where the door was locked is what Lacy said.

[00:24:19] Speaker 03:
They unlocked the door and barged in on her.

[00:24:22] Speaker 03:
And he feels comfortable enough to do that.

[00:24:24] Speaker 03:
But now all of a sudden, five minutes later, he's so concerned that she's going to get raped or killed that he barges in and stabs his friend in the head with a knife.

[00:24:34] Speaker 03:
And that's the government's argument in a nutshell.

[00:24:37] Speaker 04:
Nobody's saying he's reasonable.

[00:24:38] Speaker 04:
That's the reason we're here.

[00:24:41] Speaker 03:
But that's the threshold question that this court has to answer is, is this sufficient?

[00:24:48] Speaker 00:
The name of the instruction is an imperfect belief.

[00:24:53] Speaker 00:
In other words, you're arguing, well, he doesn't get that.

[00:24:59] Speaker 00:
We've set a bar low.

[00:25:01] Speaker 00:
So how do I construe the word imperfect?

[00:25:03] Speaker 00:
I think that's the word that's used in this, in this instructor, because definitely everything we're talking about is not perfect on the part, but at least for a jury sake to let them consider, was it imperfect?

[00:25:17] Speaker 03:
So the defendant must have a subjective belief that deadly force was necessary.

[00:25:23] Speaker 00:
And if he has that now?

[00:25:25] Speaker 03:
And then he, and then if it's imperfect, if that belief is unreasonable,

[00:25:31] Speaker 03:
then he's entitled to imperfect self-defense.

[00:25:33] Speaker 03:
If he has a subjective belief that deadly force is needed and it's also reasonable, then that's self-defense.

[00:25:40] Speaker 03:
So under both perfect self-defense or imperfect self-defense, there has to be a subjective belief by the defendant that force was necessary.

[00:25:51] Speaker 00:
But who makes that decision?

[00:25:52] Speaker 03:
The trial judge.

[00:25:54] Speaker 00:
As far as the instruction is concerned, but that's the issue we have was that error.

[00:25:59] Speaker 00:
And that's why I need you to tie now what your argument is with plain error.

[00:26:05] Speaker 00:
How do you still win if we agree the other way?

[00:26:09] Speaker 00:
Do you still win under the plain error?

[00:26:11] Speaker 03:
So the trial judge, as well as defense counsel at the trial stage, what we're arguing about is he had some sort of reason why he needed to rush into the bathroom.

[00:26:22] Speaker 03:
I don't want to call it motive, but it is motive-esque.

[00:26:26] Speaker 03:
It's motive-adjacent.

[00:26:27] Speaker 03:
But there's a reason that he had to go into the bathroom and kill his friend.

[00:26:30] Speaker 03:
And the trial judge and defense counsel all conceded, it's an inexplicable act.

[00:26:36] Speaker 03:
So at the trial stage, looking at this, they didn't say, oh, he was trying to defend Lacey.

[00:26:42] Speaker 03:
he was acting in defense of another.

[00:26:45] Speaker 03:
They talked about it as an inexplicable act.

[00:26:48] Speaker 04:
Well, and the trial court said not that the defendant didn't believe it as it relates to her being under threat.

[00:26:56] Speaker 04:
Well, if he believed it, I mean, even the court acknowledged that he believed it.

[00:27:03] Speaker 04:
And if the court acknowledged that he believed it, isn't that what we're here to talk about?

[00:27:08] Speaker 03:
It is, Your Honor, and I'm remiss that I only have a minute left because, of course, because we're under plain error review, plain error is only the first two steps of the analysis.

[00:27:20] Speaker 03:
We also have to show an effect on a substantial right, and I do want to address something here.

[00:27:25] Speaker 03:
The burden no longer, when looking at the effect on the substantial right, the different outcome in the trial, the burden no longer is for this court to, for everything in favor of the defendant.

[00:27:35] Speaker 03:
And that's what the defense is asking this court to do.

[00:27:38] Speaker 03:
is to take all inferences in favor of the defense when evaluating the effect on the substantial rights.

[00:27:44] Speaker 03:
That is not the law.

[00:27:45] Speaker 03:
This is when we can put on our hats and really critique and judge and tear apart the nature and quality of the evidence in this case and whether or not this jury would have accepted that he did act in imperfect self-defense.

[00:28:00] Speaker 03:
And that's where the government feels that the defendant's burden really is not met and that this case falls apart because

[00:28:08] Speaker 03:
when you look at the nature and quality and quantity of the evidence, it's just not there that a reasonable jury would then buy onto the defense.

[00:28:19] Speaker 03:
And I see my time, oh, I see my time has expired, so I will thank you all very much.

[00:28:24] Speaker 04:
Thank you, counsel.

[00:28:29] Speaker 04:
If you wouldn't mind if you'd start with the third prong in the question of how the evidence plays out in that regard.

[00:28:36] Speaker 01:
Yes, Your Honor, that was my intention.

[00:28:38] Speaker 01:
I don't recall from the government's brief an argument that somehow this way that we view the evidence on third-prong shifts, and we no longer view it in the light most favorable to the defendant.

[00:28:49] Speaker 01:
And I don't think that's true.

[00:28:51] Speaker 01:
I think most instructive here is going to be this court's constructive possession cases.

[00:28:57] Speaker 01:
And as you know, most of those arose on plain error.

[00:29:02] Speaker 01:
There was an incorrect instruction on constructive possession.

[00:29:05] Speaker 01:
And the real question in those cases is if intent to possess, which is where the error was, was actually at issue.

[00:29:13] Speaker 01:
And if the evidence was not so strong that a reasonable jury would be compelled to conclude that that element was proven beyond a reasonable doubt, this court reversed on plain error.

[00:29:24] Speaker 01:
I don't see why the standard would change.

[00:29:27] Speaker 01:
It is not this court's role to weigh evidence.

[00:29:30] Speaker 01:
It is not this court's role to weigh credibility.

[00:29:33] Speaker 01:
What this court's role is, is to say, is this so strong that a reasonable jury would be compelled to conclude that the element at issue here, which is malice, which is what is undermined by the involuntary manslaughter theory, was proven beyond a reasonable doubt.

[00:29:55] Speaker 01:
So you say it's a constitutional error.

[00:29:58] Speaker 01:
This is unquestionably a constitutional error.

[00:30:01] Speaker 01:
Britt evaluates it as such.

[00:30:02] Speaker 01:
Obviously the burden is shifted and it's slightly different because the burden has shifted, but the reasonable doubt standard from constitutional error is kind of doubled up in Britain because both we're looking at is it harmless beyond a reasonable doubt, but also we're looking at the jury's role of finding something beyond a reasonable doubt.

[00:30:22] Speaker 01:
That part of that survives even when the burden shifts and when we need to prove prejudice

[00:30:28] Speaker 01:
This question still remains.

[00:30:30] Speaker 01:
Would the jury have been compelled to conclude that this was proven beyond a reasonable doubt?

[00:30:35] Speaker 01:
And we'd ask this court to reverse.

[00:30:42] Speaker 04:
Thank you, counsel, for your fine arguments.

[00:30:45] Speaker 04:
That concludes the cases that we have before us this morning.