[00:00:00] Speaker 02:
Our final argument for today is 23-395, U.S.

[00:00:06] Speaker 02:
versus CAPS.

[00:00:41] Speaker 00:
May it please the court, Jake Rochebeau, for the appellant, Michael Caps.

[00:00:46] Speaker 00:
The district court gave the entire slate of substantive legal instructions at the very beginning of trial before opening statements and a presentation of evidence and then refused to re-instruct the jury at the close of evidence.

[00:00:59] Speaker 00:
This was error.

[00:01:01] Speaker 00:
Rule 30C provides that the court may instruct the jury before or after the arguments are completed or at both times.

[00:01:09] Speaker 00:
But the plain meaning, the context, and history of the rule clearly indicate that before or after means right before or after closing arguments, i.e.

[00:01:19] Speaker 00:
at the close of evidence.

[00:01:21] Speaker 00:
In common usage, when somebody refers to doing something before or after an event, they typically mean close in time to that event, like right before or after, not literally any time.

[00:01:33] Speaker 03:
Council, what if I were to say, before you give your argument, will you give us your appearance?

[00:01:41] Speaker 03:
Take your appearance before you present your argument.

[00:01:45] Speaker 03:
That makes sense.

[00:01:46] Speaker 03:
But there are other contexts.

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Before you file a motion in limiting, you need to file an entry of appearance.

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That could be two weeks earlier.

[00:01:55] Speaker 03:
So it's all context driven, right?

[00:01:59] Speaker 00:
Yeah, certainly it is context driven, and here the context clearly indicates that it means, the rule means, right before or right after closing arguments.

[00:02:09] Speaker 00:
And I do think just in general common usage, typically when we talk about right before and right after, or before or after, we mean close in time to that event.

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Of course we can think of certain examples, but I think it's fair to say that in common usage we typically mean in relationship to that event.

[00:02:25] Speaker 00:
What about preservation?

[00:02:27] Speaker 03:
I mean, I know you rely on the futility exception, but for the futility exception, isn't that predicated on the district court already have been alerted to the basis for the objection?

[00:02:39] Speaker 03:
And there was never any utterance to the district court, Judge Melgren, about Rule 30C, right?

[00:02:46] Speaker 03:
Well, it's true that we didn't cite the specific rule, but... Or even said that it is mandatory.

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I mean, the counsel presented arguments saying, you know, you should do this.

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We assume that you were going to do this.

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But even apart from Rule 30C, nobody said the rules require it.

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It's mandatory.

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You don't have the discretion.

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I know you don't want to do it, but you don't have that choice judgment.

[00:03:14] Speaker 03:
Nobody ever said it was either mandatory or the substance of Rule 30C, right?

[00:03:19] Speaker 00:
That's true, and I don't think any of that is necessary just to preserve a claim for appeal.

[00:03:23] Speaker 00:
Rule 51 says you just need to inform the court of the action the party wishes the court to take.

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And the reason for it, right?

[00:03:32] Speaker 03:
Well, so the rule... So if you say, you know, Judge, I want you to instruct on self-defense, I don't have to tell you why.

[00:03:40] Speaker 03:
You can present a completely different theory on appeal than you presented in this report, because you told the district court what you wanted him or her to do, right?

[00:03:50] Speaker 00:
Right, and I think that's the same is true here.

[00:03:52] Speaker 00:
He says, we're requesting that you read instructions of the close of evidence.

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That's all that's required.

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And I think the same is true with the jury instruction.

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We're requesting a jury instruction on self-defense.

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That's all you need to say.

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You don't have to even give the specific parameters of that.

[00:04:10] Speaker 02:
It seems to me that Rule 30D addresses this very point, objections to instructions.

[00:04:18] Speaker 02:
I don't know why you're looking at Rule 50 or whatever it was, but a party who objects to any portion of the instructions or, and I think this is what applies here, to a failure to give a requested instruction must inform the court of the specific objection and the grounds for the objection before the jury retires to deliberate.

[00:04:37] Speaker 00:
Well, I don't think 30D is talking about the timing or the oral reputation of the instruction.

[00:04:42] Speaker 02:
Sure, I mean, it's talking about how you give instructions.

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And they say, must inform the court, failure to give a requested instruction.

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And that's the argument here.

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You didn't give this instruction at this time.

[00:04:57] Speaker 00:
At this time?

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The argument is not that the jury didn't receive the instructions.

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The instructions were all given.

[00:05:02] Speaker 00:
So you don't think 30D applies?

[00:05:04] Speaker 00:
No, Your Honor, I don't at all.

[00:05:05] Speaker 02:
Even though it's the rule on preservation with respect to instructions?

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is referring to the substance of

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failure to give a requested instruction.

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Because it's not that the jury didn't get the instruction.

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The judge did not fail to give the jury the instructions.

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The jury got the instructions.

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The only question, the only issue that we're arguing, we argued below is that it's the timing as to when those instructions

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are orally recited to the jury and that's what rule 30C talks about and rule 30C is the only rule that applies in talking about the timing of when these instructions must be given.

[00:06:00] Speaker 04:
But actually to some extent you did make a 30D objection because

[00:06:06] Speaker 04:
Council moved to have the court reread 12 of the instructions.

[00:06:14] Speaker 04:
That seems to me functionally a 30-D specific objection, at least to that subset of the entire instructions.

[00:06:22] Speaker 00:
That's right, Your Honor.

[00:06:23] Speaker 04:
So at the initial... Well, is that a 30-D objection?

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I think it would qualify, certainly.

[00:06:29] Speaker 02:
Except 30-D says, and the grounds for the objection.

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And if you don't cite the rule,

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If you just sort of say, it's unfair not to give it again, that was the argument.

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That's not the same saying as Judge Bacharach said.

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There's a rule that requires you to give these.

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Right, Your Honor.

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So I don't see, regardless of whether 30D applies, I don't think you can say that the defense counsel gave the grounds for the objection.

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when he said you should give these instructions again.

[00:07:11] Speaker 00:
He did not give the specific ground, didn't cite rule 30.

[00:07:14] Speaker 00:
He did give some grounds.

[00:07:16] Speaker 02:
Don't you think that makes a difference?

[00:07:18] Speaker 00:
I don't, Your Honor.

[00:07:20] Speaker 00:
But even if it did, I think that would only apply to whether, as a matter of law, the district court erred by not

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complying with Rule 30C's mandate that you have to give it immediately before or immediately after.

[00:07:37] Speaker 00:
It still would preserve the argument that district court abused its discretion in failing to give the instructions at that time.

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And here, under the unique circumstances of this case, the district court certainly abused its discretion in not orally giving the instructions at the close of evidence.

[00:07:55] Speaker 04:
I have one fact question that I neglected to confirm before I came out here.

[00:08:01] Speaker 04:
And just looking at the colloquy between the counsel and the ruling on the motion to reread 12 instructions, the court said, well, you can refer to them in your closing arguments.

[00:08:16] Speaker 04:
If you think that they're important, you want to focus the jury's attention to them.

[00:08:22] Speaker 04:
Did the defense counsel in closing ask the jury to look at some of the jury instructions?

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Can you answer that question?

[00:08:33] Speaker 00:
Your Honor, I can't.

[00:08:34] Speaker 00:
I'm happy to look at the record, and I can file a 28-J letter about that.

[00:08:38] Speaker 00:
But my recollection is that, and the government, I believe, mentioned this in their brief that there might have been some allusion to them, but the defense counsel didn't read the instructions aloud.

[00:08:52] Speaker 04:
Would that cure the error here, to some extent?

[00:08:56] Speaker 00:
If defense counsel had taken the time to read the instructions,

[00:09:01] Speaker 00:
That could be an argument that there was no harm, but it certainly wouldn't cure the error.

[00:09:07] Speaker 00:
A district court can't just pawn off on defense counsel the obligation to... What's the prejudice to defense counsel?

[00:09:15] Speaker 02:
He made the arguments with respect to several of them.

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regarding, I think, beyond reasonable doubt, maybe even the fact that you're presumed innocent.

[00:09:28] Speaker 02:
I'm not sure about that one.

[00:09:30] Speaker 02:
And could easily, if you thought it was helpful, said, as the judge has instructed you, you have to find guilt beyond a reasonable doubt.

[00:09:40] Speaker 02:
That means such and such.

[00:09:41] Speaker 02:
Nothing kept defense counsel from doing that.

[00:09:44] Speaker 00:
Nothing kept defense counsel from doing that, but it's also not the defendant's obligation to help the district court cure its error.

[00:09:53] Speaker 00:
So while that could have mitigated the effect of the error, there was nothing obligating defense counsel to preserve the issue for appeal or to... So what's the... If we review for plain error...

[00:10:06] Speaker 02:
what's your evidence of prejudice to the defendant when this was not some technical point that defendant is concerned about.

[00:10:18] Speaker 02:
It's the more general instructions such as beyond a reasonable doubt.

[00:10:24] Speaker 02:
How is there prejudice here when defense counsel argued it?

[00:10:31] Speaker 02:
Could have called attention to the specific instructions.

[00:10:34] Speaker 02:
the jury actually had heard the instruction and had had the printed copies of the instructions since day one and had them during their deliberations.

[00:10:47] Speaker 02:
Where's the prejudice?

[00:10:50] Speaker 00:
So in order to show prejudice, this is assuming plain error because obviously it's preserved its government's burden and they haven't met that burden.

[00:10:56] Speaker 00:
But if it is our burden, we just have to show that there's a reasonable probability that it affected the failure to re-instruct the jury on the most critical instructions to the defense.

[00:11:08] Speaker 00:
There's a reasonable probability that the jury, even one jury, would have reached a different

[00:11:13] Speaker 00:
a different verdict on any of the counts.

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And here, the evidence of guilt was not overwhelming.

[00:11:20] Speaker 00:
It was a close case as evidenced by the split verdict.

[00:11:24] Speaker 00:
Starks goes on at length about how written instructions are no substitute for oral delivery of instructions.

[00:11:31] Speaker 00:
The Ninth Circuit even says that it's structural error not to orally announce the instructions just to provide- Did you read Judge Garber's dissent in that case?

[00:11:43] Speaker 02:
I don't recall it.

[00:11:46] Speaker 00:
I have not re-read it in preparation for oral argument.

[00:11:54] Speaker 00:
Well, it lost itself.

[00:11:56] Speaker 00:
But, I mean, and the Ninth Circuit points out that

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There are good reasons for requiring oral delivery instructions.

[00:12:02] Speaker 00:
As they say, only 13% of laypersons in the United States are capable of reading long prose that describes complex issues.

[00:12:14] Speaker 03:
That's a good segue for my next question.

[00:12:17] Speaker 03:
Assuming that you preserve the policy, the argument, the argument based on the empirical data, there's all sorts of, through your wonderful advocacy to us in your briefing, of statistics.

[00:12:34] Speaker 03:
But there's all sorts of things that are outside certainly our domain.

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The judge, the district court, really wasn't privy to this.

[00:12:44] Speaker 03:
And certainly outside any Article III judge's typical expertise on recency, you know, the recency phenomenon, or to say, I think Judge Melgren said he read the 52-page instructions in 45 minutes, which seems pretty fast.

[00:13:04] Speaker 03:
And so if you got your wish and Judge Melgren sped-read through the 52 pages in 45 minutes, would that have been better than saying, go back and reread the jury instructions at your leisure as soon as you pick a foreman?

[00:13:22] Speaker 03:
Which is better?

[00:13:24] Speaker 03:
Presumably reasonable people could come to different conclusions about that.

[00:13:30] Speaker 03:
But your argument seems predicated on a lot of

[00:13:33] Speaker 03:
empirical data that really nobody had alerted the judge to.

[00:13:37] Speaker 03:
And it seems like a fair call for the judge to say, as Judge Hart said, you had the printed instructions from day one.

[00:13:46] Speaker 03:
You were free to look back at them.

[00:13:48] Speaker 03:
I told you, jury, as soon as you pick a form, and that's the next thing you do to reread the jury instructions.

[00:13:56] Speaker 03:
So why isn't that, at least within the district judge's broad realm of discretion?

[00:14:01] Speaker 00:
So I'd like to try to reserve some time for rebuttal to quickly answer your question.

[00:14:06] Speaker 00:
All this information that we're relying on, it's not just data that I have gone and dug through.

[00:14:12] Speaker 00:
It's all in published

[00:14:15] Speaker 00:
It's in Starks.

[00:14:16] Speaker 00:
It's a published opinion that came out months before this case went to trial, right before the air.

[00:14:23] Speaker 00:
So all of this information was in binding 10-circuit precedent for the district judge to be aware of.

[00:14:29] Speaker 00:
And I'd like to reserve the remainder of my time for butthole, if that's all right.

[00:14:34] Speaker 03:
Sorry for stealing your butthole time.

[00:14:36] Speaker 03:
What no purpose.

[00:14:47] Speaker 01:
May it please the court, Kerry Capwell for the United States.

[00:14:50] Speaker 01:
Mr. Capps did not preserve the precise issue that he now raises on appeal.

[00:14:55] Speaker 01:
And for that reason, plain error review applies here.

[00:14:58] Speaker 01:
Mr. Capps agreed to the district court's plan to instruct the jury in full before opening statements.

[00:15:05] Speaker 01:
And although Mr. Capps argues that once he learned that the district court did not plan to re-instruct the jury at the close of the case,

[00:15:14] Speaker 01:
At that point, he only asked the district court to reread eight specific instructions, and he filed a motion over the weekend on that point.

[00:15:24] Speaker 01:
But he did not ask the judge to reread the full set of instructions, and at no point, as this court has already observed, did Mr. Capps bring to the court's attention Rule 30C as the basis for his request.

[00:15:39] Speaker 01:
the motion makes clear that the basis for their request was to assist the jury and also to ensure due process and a fair trial for the defendant.

[00:15:50] Speaker 01:
For those reasons, the 30C argument was never made below.

[00:15:55] Speaker 01:
And in fact, under affinity, I would argue that the defendant actually diverted the district court's attention to a different issue, which was the rereading of eight specific instructions

[00:16:08] Speaker 01:
Rather, and the court there said, I'm not going to highlight certain instructions over others.

[00:16:13] Speaker 01:
I don't believe that would be proper.

[00:16:16] Speaker 01:
That issue is not up on appeal, the eight instructions.

[00:16:19] Speaker 01:
The issue up on appeal is a different issue.

[00:16:22] Speaker 01:
It's the rereading of the full set of instructions at the end of the trial, which is something that the district court never was asked to pass on, and especially not in terms of the Rule 30C argument.

[00:16:34] Speaker 03:
What if the judge had said, instead of, I forget his language, no way, do not

[00:16:41] Speaker 03:
mentioned this to me one more time about rereading the instructions.

[00:16:47] Speaker 03:
Does he still have to object to preserve the argument?

[00:16:51] Speaker 01:
Well, yes, that assumes that it was already brought to the court's attention that the defendant wanted a full rereading of the instructions, which did not happen here, but assuming there was an initial... Assuming the judge says, do not ask me one more time, knucklehead, to reread all of the jury instructions.

[00:17:09] Speaker 03:
I'm not going to do that.

[00:17:11] Speaker 03:
Do not even ask me.

[00:17:15] Speaker 01:
I think that would be a different case, and that would put the defense attorney in a much more difficult position in terms of warning.

[00:17:21] Speaker 03:
Didn't he say basically the same thing here?

[00:17:24] Speaker 03:
No way am I going to torture myself again.

[00:17:27] Speaker 03:
I forget his language.

[00:17:28] Speaker 03:
But that was the gist of it.

[00:17:29] Speaker 03:
No way am I going to do that.

[00:17:32] Speaker 01:
Right.

[00:17:32] Speaker 01:
But there was no threat to the defense attorney to don't you dare raise this in my court again with a threat of possible contempt of court for doing so.

[00:17:42] Speaker 01:
So here, I think the district court made clear that that's not something he planned to do.

[00:17:48] Speaker 01:
But certainly he did not in any way prevent the defense attorney who had the obligation and the duty at that point, if he wanted a full rereading of the instructions at the very least to preserve the issue for appeal, he had to raise that issue to the court with the specific reasons and grounds

[00:18:07] Speaker 01:
for his request, which now on appeal is Rule 30C.

[00:18:12] Speaker 01:
But that was not the basis of the request.

[00:18:15] Speaker 01:
So it did not give the district court any notice that that was the issue.

[00:18:19] Speaker 01:
It did not give the district court an opportunity to present his reasoning on the record as to Rule 30C and as to why the district court

[00:18:28] Speaker 01:
did not plan to reread all of the instructions.

[00:18:32] Speaker 01:
And I do want to answer Judge Timkovich's question.

[00:18:35] Speaker 01:
I looked at the record, and so I can give you a partial answer.

[00:18:39] Speaker 01:
I can't promise this is a full answer.

[00:18:41] Speaker 01:
But in volume 3 at pages 11, 44 to 48, during the defense closing,

[00:18:48] Speaker 01:
The defense attorney does specifically mention instruction number six, which is that the government bears the burden of proving beyond a reasonable doubt every element of every count.

[00:18:59] Speaker 01:
He also mentioned specifically instruction number seven, which is the presumption of innocence.

[00:19:05] Speaker 01:
And then later at page 1146, he mentions and discusses the good faith instruction from the jury instructions.

[00:19:13] Speaker 01:
So the defense attorney did take advantage of his time during closing argument.

[00:19:18] Speaker 01:
to bring to the attention of the jury, again, at least some of, and there may be more that I did not notice while I was sitting at council table, but at least to bring forward to the jury's attention the instructions that he felt were important for his client and to, again, emphasize to the court.

[00:19:40] Speaker 04:
you know, relatively complex fraud prosecution and, you know, the timing of this, you know, the skip in the day and the other, some unique aspects to this trial that may have militated, you know, towards the torturous rereading at the end because of the way this thing had been staged.

[00:20:02] Speaker 04:
You know, so instead of a three-day sequential easy case, we have a complex case over eight days or whatever.

[00:20:10] Speaker 01:
Well, I agree with Your Honor, and I think this is the implication of your question.

[00:20:14] Speaker 01:
It is a case by case analysis.

[00:20:16] Speaker 01:
I do agree to that.

[00:20:17] Speaker 01:
So there could be situations, and Starks is an example of where not reading the instructions at the end of the case

[00:20:26] Speaker 01:
resulted in the jury instructions not being able to provide a potential cure to the errors that occurred during trial, and more importantly, during the closing arguments.

[00:20:37] Speaker 01:
But going back to your Honor's question.

[00:20:39] Speaker 04:
And we're drifting a little towards prejudice.

[00:20:41] Speaker 04:
If we're in plain error, towards prong three, that you can construct an argument that this may be prejudicial to the defendant because the jury did not have a clear

[00:20:56] Speaker 04:
idea of what they were supposed to do and what law they should apply.

[00:20:59] Speaker 01:
Your honor, I would push back against that.

[00:21:02] Speaker 01:
I think it's very fact driven.

[00:21:04] Speaker 01:
Here, I would disagree respectfully, as we did in our brief, that it was a complex case.

[00:21:09] Speaker 01:
It was a single defendant.

[00:21:11] Speaker 01:
It was basically a scheme to defraud by submitting false documents to different entities under COVID relief in order to get money from those entities and then to launder or remove the money between accounts.

[00:21:25] Speaker 01:
disagree that it's a complex case.

[00:21:29] Speaker 01:
Also, the evidence came in in two and a half days, and less than two days was the government's evidence.

[00:21:35] Speaker 01:
So the defense evidence took up at least half a day, if not more.

[00:21:40] Speaker 01:
And going to the third prong of plain error review, under these facts, the defendant just cannot meet his burden or does not meet his burden to prove that third prong, which is that the alleged error substantially affected his substantial rights

[00:21:56] Speaker 01:
And in doing so, he'd have to show that the confidence in the outcome of the trial is undermined because of the alleged error.

[00:22:06] Speaker 01:
And he cannot do that here.

[00:22:08] Speaker 01:
He cannot show that the proceeding or the outcome of the proceeding would have been different if the district court had in fact reread the full set of instructions.

[00:22:17] Speaker 01:
And some of those reasons which we outline in the brief are

[00:22:20] Speaker 01:
There's no dispute that the district court fully read word for word, out loud, all of the instructions before opening statements.

[00:22:29] Speaker 01:
All the jurors were provided with their own set of the written jury instructions before the court orally instructed the jury, and they were able to maintain that written set with them throughout the trial.

[00:22:42] Speaker 01:
in their notebooks.

[00:22:43] Speaker 01:
Additionally, after closing arguments, the district court reminded the jurors that they were still under the obligation to follow in full and that all the jury instructions that the court had previously read still applied in full during deliberations.

[00:22:59] Speaker 01:
He also advised the jury that the second thing they should do once they enter the jury room after picking a foreperson was to, again, reread those instructions.

[00:23:08] Speaker 01:
And this court presumes

[00:23:11] Speaker 01:
that the jury does follow the court's instructions absent an overwhelming probability to the contrary, which is not evident here, and the defendant has not, I don't believe, even attempted to establish that.

[00:23:24] Speaker 01:
Another very important factor is that the defendant does not claim there were any other errors or omissions in the jury instructions themselves, that they were erroneous in any way, and unlike Stark's,

[00:23:39] Speaker 01:
The defendant does not claim that there were any separate errors, for example, with the admissibility of evidence.

[00:23:47] Speaker 01:
or misstatements by the prosecutor during his closing argument.

[00:23:51] Speaker 01:
So there are no other issues here where, had instructions been given at the end, they could have mitigated against any potential prejudice or harm that came up from the trial.

[00:24:03] Speaker 01:
So looking at this on a kind of specific case basis, the defendant cannot meet that burden.

[00:24:10] Speaker 01:
And I do want to go back to the second problem of plain error, because I do think that's...

[00:24:17] Speaker 02:
Instructions that were requested.

[00:24:18] Speaker 02:
What was the subject matter of those eight points?

[00:24:21] Speaker 01:
Let me try to find those very quickly your honor.

[00:24:25] Speaker 01:
Let's see All right, it's not gonna be quick but I can find There it's in my brief.

[00:24:33] Speaker 01:
So I'm gonna find them.

[00:24:35] Speaker 01:
Let's see.

[00:24:35] Speaker 01:
Okay.

[00:24:36] Speaker 01:
Okay.

[00:24:37] Speaker 01:
Let's see motion Okay, specifically

[00:24:41] Speaker 02:
Instructions, well, I got the numbers and then somewhere... Do you know if any of them related to the elements of the offense or were they general, like the unreasonable doubt?

[00:24:50] Speaker 01:
I think 23 and... They were more, I believe, general.

[00:24:53] Speaker 04:
Wasn't 23, I'm looking at the motion, 23 and 27, weren't those elements, instructions?

[00:25:00] Speaker 01:
I believe the good faith instruction was one of those.

[00:25:04] Speaker 01:
And I would have to see if that, I wanna say that might have been instruction 23 or 27.

[00:25:10] Speaker 01:
Give me one second, I'll see if I can.

[00:25:14] Speaker 02:
Well, I'm gonna take your time.

[00:25:15] Speaker 02:
You wanted to go to prong two, you said.

[00:25:18] Speaker 01:
I did, your honor.

[00:25:20] Speaker 01:
frustrated, I can't find this for you.

[00:25:22] Speaker 01:
So under the second prong, the plain error, here essentially the defendant concedes that issue because they agree that this issue is a matter of first impression for this court.

[00:25:37] Speaker 01:
And generally that would preclude a finding that it's a plain error, meaning it's well settled or it's obvious or it's clear and there's no

[00:25:48] Speaker 01:
precedent out of this court or the Supreme Court that would answer that question and make it well settled whether rule 30C does require reading of the instructions if it's before arguments to be immediately before or just before or close in time.

[00:26:07] Speaker 01:
There's no ruling or clear settled law on that.

[00:26:10] Speaker 01:
And in fact, I couldn't find anything in other court of appeals published decisions either to give us an answer on that.

[00:26:18] Speaker 01:
So for that reason, any alleged error could not be plain on that basis.

[00:26:27] Speaker 01:
And even if this court were to apply the abuse of discretion standard of review, the government

[00:26:36] Speaker 01:
while disputing that there's any error, we also would have the ability to establish that it's a harmless error for many of the same reasons that we argued under prong three of plain error review.

[00:26:51] Speaker 03:
Obviously, you challenged preservation on the Rule 30C issue, but what about the empirical research and the policy considerations?

[00:27:00] Speaker 03:
Do we apply abusive discretion on that or plain error?

[00:27:06] Speaker 01:
I'm sorry, Your Honor, I don't understand your question.

[00:27:07] Speaker 01:
Let's try again.

[00:27:08] Speaker 03:
Well, I think he's made three arguments.

[00:27:10] Speaker 03:
One is basically policy considerations, empirical research, and Rule 30C.

[00:27:16] Speaker 03:
Obviously on Rule 30C he challenged preservation, but didn't he adequately preserve the argument about policy considerations and empirical research?

[00:27:26] Speaker 01:
I don't believe so, Your Honor.

[00:27:28] Speaker 01:
I read the defense, the appellant's brief as

[00:27:32] Speaker 01:
arguing rule 30C as really his one and only ground on appeal with perhaps the empirical research and case law and articles that might support recency to be support for why to read the rule in the manner that Ellen argues.

[00:27:53] Speaker 01:
That's my reading of it, Your Honor.

[00:27:55] Speaker 04:
What's your response to

[00:27:57] Speaker 04:
Judge Hartz's suggestion about the 30D.

[00:28:04] Speaker 01:
Specific objections.

[00:28:05] Speaker 01:
Yeah.

[00:28:06] Speaker 01:
I regret that I did not brief that.

[00:28:08] Speaker 01:
I noticed that in the last couple days while re-reviewing everything.

[00:28:14] Speaker 01:
And I did ask myself why I didn't look at that more carefully and raise that for your honors.

[00:28:21] Speaker 01:
So I do think that that's a valid argument.

[00:28:25] Speaker 01:
I didn't make that argument.

[00:28:27] Speaker 01:
I think it could apply here because I do think, well, I had a similar hesitation as my colleague that doesn't really fit the situation or not.

[00:28:38] Speaker 01:
I do think under that second part or a failure to give a requested instruction.

[00:28:43] Speaker 01:
So while the court gave all the requested instructions, it didn't give them when they, well,

[00:28:50] Speaker 01:
The aid instructions, it did not give them again.

[00:28:52] Speaker 02:
It requested aid instructions, right?

[00:28:54] Speaker 01:
Right, to be given again.

[00:28:57] Speaker 02:
And if the judge had granted that, there'd be no appeal issue.

[00:29:01] Speaker 02:
But the judge didn't grant that request.

[00:29:04] Speaker 02:
So how do we review that?

[00:29:06] Speaker 01:
Correct.

[00:29:07] Speaker 01:
Well, I think the government has a very strong plain error argument, regardless of 30D.

[00:29:14] Speaker 01:
And so that's the one I'll have to stick to, because I didn't brief 30D and didn't raise it for your honors.

[00:29:20] Speaker 01:
But I do, as I mentioned, I did regret that I did not add that as another argument for plain error review.

[00:29:28] Speaker 02:
Thank you.

[00:29:28] Speaker 02:
You've got another second, so.

[00:29:31] Speaker 01:
I will forfeit that second.

[00:29:32] Speaker 01:
Thank you so much.

[00:29:33] Speaker 01:
And we do ask that this Court affirm the convention.

[00:29:46] Speaker 00:
First, I just want to quickly address

[00:29:49] Speaker 00:
preservation in terms of not whether rule 30, where the rule 30 argument was made, but versus these, whether the argument is preserved about eight versus every single instruction.

[00:29:58] Speaker 00:
Here in context at that initial discussion, it was clear that the defendant wanted and expected the district court to read all of the instructions again, that defendant's expectation all along.

[00:30:08] Speaker 00:
He was taken aback when the judge said that he absolutely wasn't going to do that.

[00:30:11] Speaker 00:
So when he filed the motion to read eight instructions, that was clearly like a fallback compromise position after his initial position, which was to read all of them.

[00:30:20] Speaker 04:
You'd be here on plain air even if he'd granted the motion.

[00:30:23] Speaker 04:
Is that what you're suggesting?

[00:30:25] Speaker 04:
If he'd given the eight instructions, then you'd still have appeal to the failure to give all of them, right?

[00:30:31] Speaker 04:
Yes, Your Honor.

[00:30:32] Speaker 04:
Yes.

[00:30:32] Speaker 02:
Yes.

[00:30:33] Speaker 02:
But the fact that he was surprised is not a motion.

[00:30:36] Speaker 02:
It's not a request to the court to act.

[00:30:40] Speaker 02:
Did he say,

[00:30:42] Speaker 02:
I want you to, I'm asking you to give all the instructions again.

[00:30:47] Speaker 02:
He probably preferred getting just eight instructions because those would focus on the issues he wanted to raise, which is exactly why the judge, that was the main reason the judge gave for not giving selected requests.

[00:31:00] Speaker 02:
But I've never, I've never heard that you preserve an issue by being surprised by what the judge does.

[00:31:06] Speaker 00:
Well, I think it's in, I would just say that in context,

[00:31:10] Speaker 00:
What the defendant wanted was clear and when... It was.

[00:31:16] Speaker 02:
Even if not... What you said was it was what he expected.

[00:31:20] Speaker 02:
What he wanted, you make what you want clear by making a request.

[00:31:26] Speaker 00:
Yes, Your Honor.

[00:31:28] Speaker 00:
Alternatively, even after filing the motion for just the eight, the issue of giving all the instructions is preserved because even if that wasn't requested, the district court, Sue Esponte, ruled on it multiple times at that initial discussion.

[00:31:40] Speaker 00:
And then at the follow-up conference about the motion, the defense counsel said, I want at least these eight instructions.

[00:31:50] Speaker 00:
And the district court said, I'm not gonna do that.

[00:31:53] Speaker 00:
And I'm also, again, I'll tell you why I'm not gonna read all of it.

[00:31:57] Speaker 00:
And so when a district court's sua sponte raises an issue and rules on it, it's treated as preserved.

[00:32:02] Speaker 00:
That's the amount of time I think, Your Honors.