[00:00:00] Speaker 03: in 23-4095, United States v. Teerling. [00:00:06] Speaker 00: May it please the court? [00:00:07] Speaker 00: Bretta Peery on behalf of Cody Teerling. [00:00:10] Speaker 00: This case rests on the well-established distinction between waiver and forfeiture. [00:00:15] Speaker 00: Waiver, of course, is when a party knowingly and intelligently chooses to advance or abandon a claim. [00:00:22] Speaker 00: Forfeiture is what comes about when a party misses a claim. [00:00:25] Speaker 00: It comes about through neglect and mistake. [00:00:30] Speaker 00: The government's position is that because the prosecutor submitted a stipulated set of jury instructions in this case, that Mr. Tierling can make no complaint about any of them. [00:00:40] Speaker 00: But this court's jurisprudence regarding waiver, even with regard to waiver involving a document that a party submitted, is much more nuanced than the government suggests. [00:00:52] Speaker 00: There are at least two threads that can be followed through this court's law on waiver regarding things that a party submitted. [00:00:58] Speaker 00: In Maloide, for example, the parties were arguing about a generic definition of conspiracy, and so they submitted documents. [00:01:06] Speaker 00: The defendants submitted something that covered a broad range of time and a broad range of geography, a 50-state survey. [00:01:14] Speaker 00: But then an appeal went, oh no, wait a minute, wait a minute, it's actually 1989, is the only time that matters. [00:01:20] Speaker 00: The government responded with invited error, saying, look, you submitted contemporary definitions, so clearly you invited this error, [00:01:28] Speaker 00: This court looked at what the parties actually submitted and said, it doesn't make sense. [00:01:33] Speaker 00: If he really gave his mind to the argument at the time before the district court that 1989 was the date that mattered, then he wouldn't have submitted what the court termed a hodgepodge that covered decades. [00:01:45] Speaker 00: And so this court reviewed it for plain error. [00:01:48] Speaker 00: And this case falls neatly within that analysis. [00:01:51] Speaker 00: There's simply nothing to suggest, no reason that the defendant would have stipulated to an instruction that's been wrong for 70 years, that this court said in 1990 it was constitutionally defective, that this court in 2000 said trivialized the decision of whether to convict or not. [00:02:09] Speaker 00: So looking at whether the defendant gave his mind to that particular question, [00:02:16] Speaker 00: The evidence, just like in Molloy, suggests he didn't. [00:02:19] Speaker 03: Haven't we upheld or affirmed convictions that contain this type of language, even though it's been criticized for a couple decades? [00:02:30] Speaker 00: Well, seven. [00:02:31] Speaker 00: But I think that those cases look at the actual language of the instruction overall and find that it cures the defect. [00:02:40] Speaker 00: And there's been no argument for that. [00:02:41] Speaker 03: Why isn't that the case here? [00:02:42] Speaker 00: Because there's been no argument for the government [00:02:45] Speaker 00: the language of the jury instruction in this case, fixing that evident error. [00:02:50] Speaker 00: And so I think it's important to note that in the government's cases, to the extent it was evident in the case itself, the language of the jury instructions was different from the jury instruction given in this case. [00:03:01] Speaker 02: Wasn't there in this jury instruction a statement you have to, in order to convict, you have to find the defendant guilty beyond reasonable doubt? [00:03:09] Speaker 02: Wasn't that statement somewhere in that jury instruction? [00:03:13] Speaker 02: Yes. [00:03:14] Speaker 02: And that is the precise language that several of our cases hark back to as fixing the otherwise questionable analogy that you're complaining about now. [00:03:24] Speaker 00: I'm not sure that I would read the cases the same way, Judge Ebell, because I think that what that jury instruction is trying to define is reasonable doubt. [00:03:33] Speaker 00: So the fact that the jury instruction uses the term reasonable doubt doesn't really move the ball in terms of explaining it, particularly when you then have this sort of homely analogy, which is very tempting. [00:03:45] Speaker 00: We all know how we make decisions in our personal life. [00:03:49] Speaker 00: But the problem is, as this court has noticed when it looked at that language, that it does trivialize the decision of whether to convict or not. [00:03:56] Speaker 00: So just repeating reasonable doubt, I don't think cures the problem. [00:03:59] Speaker 00: The instruction does use it a couple times. [00:04:01] Speaker 00: It says you don't have to go beyond all doubt, just a reasonable doubt. [00:04:07] Speaker 00: And a reasonable doubt is a doubt founded on reason. [00:04:09] Speaker 00: So again, we don't have this argument from the government that there was any language in this jury instruction that cured this. [00:04:16] Speaker 00: And it's important to focus on this jury instruction. [00:04:20] Speaker 00: The Supreme Court has said over and over again, this is a very important jury instruction. [00:04:25] Speaker 03: This is a little off your argument, but is this instruction regularly used in the District of Utah in criminal cases? [00:04:35] Speaker 00: This does have some differences from the stock instruction. [00:04:39] Speaker 00: And it has part from the 10th Circuit stock instruction. [00:04:44] Speaker 00: And it also has some differences from Judge Stewart's instruction. [00:04:48] Speaker 00: So it is a bit of a mix. [00:04:49] Speaker 03: But it's part of Judge Stewart's basket of instructions. [00:04:54] Speaker 00: Yes, the personal decision making analysis. [00:04:57] Speaker 03: Because I know we're on a plain error review, but I would, you know, your office could have preserved this and, you know, given a direct challenge to that instruction over the years. [00:05:07] Speaker 03: It just kind of surprised me that, you know, we're looking at this in a plain error context when it seems like there would be dozens of opportunities for your office to have challenged it on direct review. [00:05:18] Speaker 00: I think that is a fair comment, but I also think it's a fair comment that this court has over and over and over again not reversed on this instruction. [00:05:28] Speaker 00: I know, but . [00:05:30] Speaker 00: . [00:05:30] Speaker 00: . [00:05:31] Speaker 00: Faults on both sides, perhaps, Judge Shinkovich. [00:05:33] Speaker 02: If over and over and over we have not reversed on this instruction, why is your case different? [00:05:38] Speaker 02: Are you arguing that we should reverse on this instruction? [00:05:43] Speaker 00: My case is different in part because there's been no argument that other language in the instruction cures this instruction, cures the evident error. [00:05:54] Speaker 00: And because I don't know if it's been put to the court clearly before that this court has over and over and over again emphasized that this instruction is highly problematic, that it does trivialize the decision of whether to convict or not. [00:06:11] Speaker 02: Well, I can see from a management point of view, sometimes it's very hard to get the attention of district courts unless we deliver that in a bottle of reversal. [00:06:23] Speaker 02: But I'm not sure that that is a legal argument that a particular client or party can make. [00:06:30] Speaker 02: It's more of an administrative problem that we have. [00:06:33] Speaker 00: I think the legal argument, as I've said before, Judge Abel, is that there's been no argument from the government that there's any other language in this jury instruction. [00:06:41] Speaker 00: So what we have is what this court has acknowledged to be an error. [00:06:45] Speaker 00: So that meets that aspect of the plain error. [00:06:48] Speaker 00: It's been plain for 70 years. [00:06:50] Speaker 00: And we've had no argument about the language of this jury instruction that cures that error, which takes us on to the next prong of plain error review and whether we analyze it under the third or sort of the modified fourth that we've argued in the briefing. [00:07:06] Speaker 00: This is a close case. [00:07:07] Speaker 03: I'm still stuck a little bit on invited error because [00:07:13] Speaker 03: I don't know if it's a policy argument or really firmly supported by the rules or the cases, but it's designed to prevent a party from sandbagging the court. [00:07:28] Speaker 03: If you've got 70 years of precedent supporting an interpretation of the instruction, [00:07:34] Speaker 03: It's great to get that in front of Judge Stewart and see if he can fix his stock jury instructions. [00:07:40] Speaker 03: And if you don't give him the argument, he gives, you know, our cases say waiver, you try to preserve it through the footnote. [00:07:48] Speaker 03: But, you know, again, it does seem, you know, I guess the case the government relies on is stern, but it seems pretty close. [00:07:56] Speaker 03: to the situation there, but it just seems to me, you know, you want the defense bar to be going after this jury instruction if it's been defective for 70 years. [00:08:07] Speaker 00: I think actually Sturm, I'm glad you brought it up, Judge Timkovich, is a case on our side. [00:08:12] Speaker 00: Sturm is the flip side of Molloyd, which I talked about at the beginning. [00:08:16] Speaker 00: In Sturm, the challenged instruction embodied the defendant's theory of the case. [00:08:21] Speaker 00: So it makes sense to think that the defendant had given his attention to that very instruction. [00:08:28] Speaker 00: And with regard to the fact that we're here on plain error review or invited error, [00:08:34] Speaker 00: I want to make a point about the stipulation. [00:08:36] Speaker 00: It's been the government's position that the trial order that requires stipulation isn't all that coercive. [00:08:42] Speaker 00: That you get to stipulate to things you don't have a fight about, and then you can brief things that you do have a fight about. [00:08:51] Speaker 00: But what that means is that you're given a binary choice as a trial lawyer in front of Judge Stewart, which is that what the trial order says is [00:09:00] Speaker 00: in the event that the parties can't produce a complete set of jury instructions. [00:09:07] Speaker 00: then they may submit separately the ones they have an issue with. [00:09:13] Speaker 00: So what that means is, as I pointed out in the briefing, if you don't know there's a problem, you've invited error. [00:09:19] Speaker 00: If you do know there's a problem, it's fully preserved. [00:09:22] Speaker 00: So there's really no choice at all. [00:09:24] Speaker 00: So this creates a problem, as I pointed out, for lawyers who are appearing in the District of Utah [00:09:31] Speaker 00: where there are trial orders like this. [00:09:33] Speaker 00: So the extent to which you can stipulate to a jury instruction if we take a strict approach to waiver is zero. [00:09:41] Speaker 00: So you can't comply at all. [00:09:43] Speaker 02: What weight do we give to this odd footnote he said? [00:09:46] Speaker 02: I'm agreeing to submit this, but if we find a problem later, I reserve the right to challenge it. [00:09:55] Speaker 02: That's a bit odd. [00:09:57] Speaker 02: I don't quite know whether that takes away the effective waiver, the sting of it. [00:10:03] Speaker 02: If I were a district judge and I got that, what would I make of it? [00:10:10] Speaker 00: I think what you would make of it is that that footnote places us within this tradition of waiver versus forfeiture. [00:10:17] Speaker 00: I think they're okay. [00:10:19] Speaker 00: But if I've made a mistake, I haven't waived it. [00:10:22] Speaker 00: And given the difficulties, as I've said, of obeying this trial order and submitting stipulated instructions, [00:10:29] Speaker 00: This is an effort to ensure that plain error review still exists. [00:10:33] Speaker 00: And I would also like to point out that the government is the party who actually submitted these stipulated instructions. [00:10:39] Speaker 00: So presumably the prosecutor either typed or at least cut and paste that language that's in the footnote. [00:10:46] Speaker 00: So arguably the government stipulated by filing a stipulation containing this that the defendant was not waiving plain error review. [00:10:55] Speaker 00: I mean, that seems like a clear case of sandbagging to me than the government's argument about the footnote. [00:11:00] Speaker 03: But if we endorse the footnote technique, then haven't we allowed the defense [00:11:06] Speaker 03: bar to eviscerate invited air in circumstances like this. [00:11:12] Speaker 03: Every lawyer will put in the footnote, and then this opinion would endorse that practice, and voila, no more invited air, at least as to jury instructions. [00:11:25] Speaker 00: I would argue that this court already looks at what the parties intended. [00:11:32] Speaker 00: So a stipulation probably would be evidence that this court would take into account that a party may have invited error, but it's not sufficient. [00:11:43] Speaker 00: If I go to the second thread that I wanted to mention about the way this court explores invited error, [00:11:51] Speaker 00: Cornelius is the case that's the linchpin for that, where the party originally agreed to a jury instruction, but then when this jury sent out a question, this court said he implored the district court to stick with the original instruction and then argued on appeal that it was erroneous. [00:12:08] Speaker 00: And this court based the invited error decision, not on that original agreement, but on the fact that he expressly endorsed it at trial. [00:12:17] Speaker 00: And that thread runs through this court's jurisprudence as well. [00:12:20] Speaker 00: In Jerob, where the court devoted pages [00:12:24] Speaker 00: to the pages in the transcript where the parties argued about the precise instruction on appeal. [00:12:29] Speaker 00: So I don't think this is going to open the floodgates to plain error review and eviscerate invited error. [00:12:36] Speaker 00: I think the reverse danger is more real, that obeying this [00:12:40] Speaker 00: Trial order does in fact eliminate plain error review of jury instructions altogether or create a trial management problem for district judges in Utah Because defense lawyers are going to say sorry. [00:12:52] Speaker 00: I can't stipulate to anything I'm going to object to this instruction on the elements and that's all I can do to participate in this And if there are no further questions on reserve my remaining time for thank you counsel I [00:13:24] Speaker 04: Good morning and may it please the court. [00:13:25] Speaker 04: I'm Joseph Palmer from the Justice Department. [00:13:29] Speaker 04: This is a textbook case of invited error. [00:13:33] Speaker 04: When a party proposes an instruction, he relinquishes his ability on appeal to challenge the same instruction. [00:13:41] Speaker 04: There's no requirement that the defendant at the time that he proposes the instruction have subjectively had in mind the legal theory that he later raises on appeal. [00:13:51] Speaker 04: And the absence of that requirement is made clear by this court's recent decision in McBride. [00:13:57] Speaker 04: In McBride, the parties jointly proposed an instruction as here. [00:14:02] Speaker 04: And there was no hint of any evidence that at the time of proposing the instruction, the defendant had in mind the legal theory that he later raised. [00:14:12] Speaker 04: And in fact, this court explicitly found that he didn't. [00:14:16] Speaker 04: A few quick details on McBride to explain that. [00:14:19] Speaker 04: In McBride, [00:14:20] Speaker 04: the jury instruction at issue defined a scheme to defraud. [00:14:26] Speaker 04: And the defendant claimed on appeal that this instruction was faulty because it failed to incorporate the analysis from a recent Supreme Court decision. [00:14:36] Speaker 04: And so the court considered on appeal whether the supervening exception, supervening decision exception to the invited error doctrine applied. [00:14:44] Speaker 04: And in doing so, it determined that the [00:14:48] Speaker 04: The right to control theory, the theory that was embodied in the Supreme Court case, had played no role in the defendant's original decision to propose the instruction. [00:14:57] Speaker 04: And yet the court applied the invited error doctrine anyway. [00:15:01] Speaker 04: And so McBride makes clear that it doesn't matter whether the defendant was specifically had in mind the legal basis for the appeal that he later raises. [00:15:11] Speaker 04: It is enough for the invited error doctrine to apply that the defendant [00:15:16] Speaker 04: proposed the jury instruction to the court. [00:15:20] Speaker 04: That's also confirmed by this court's decision in Jared. [00:15:23] Speaker 02: Well, that generally makes sense, because courts are not very well equipped to get inside the mind of litigants or lawyers. [00:15:32] Speaker 02: We don't like to make that a standard, except, importantly, when it involves a defendant doing something. [00:15:42] Speaker 04: That's correct, Your Honor. [00:15:44] Speaker 04: Particularly in the context of jointly proposed instructions, there's not ordinarily going to be any on-the-record evidence about how the crafting of the language in the instruction took place. [00:15:54] Speaker 04: The negotiation, who wanted what language, the crafting of the language will have happened between the parties. [00:16:00] Speaker 04: And then when there's a joint submission to the court, then [00:16:03] Speaker 04: and the court accepts the language that the parties said, we want you to give this language, then there's generally not going to be a record about what the parties had in mind at the time that they proposed that language. [00:16:16] Speaker 03: Do you think this instruction is plainly erroneous? [00:16:19] Speaker 03: No, Your Honor. [00:16:20] Speaker 03: Why not? [00:16:21] Speaker 04: This court has twice upheld instructions that use [00:16:26] Speaker 04: a similar willingness to act formulation that the defendant challenges here. [00:16:30] Speaker 04: On De Novo review, applying De Novo review in those cases, the court made clear that while that language is problematic, [00:16:39] Speaker 04: In and of itself, it doesn't constitute a constitutional violation. [00:16:44] Speaker 04: There has to be additional deficiencies in the instruction. [00:16:47] Speaker 04: Now that the defendant has argued that the government hasn't. [00:16:51] Speaker 03: Yeah, I thought her argument was that you hadn't really made that specific argument. [00:16:54] Speaker 03: So if you could address that. [00:16:56] Speaker 04: Well, so the first thing I would say is that on plain error review, it's the defendant's burden to identify some deficiency in the instruction other than the deficiency that this court has twice held on de novo review isn't enough [00:17:09] Speaker 04: to reverse a conviction. [00:17:12] Speaker 04: In addition, the instruction is otherwise exemplary. [00:17:15] Speaker 03: Well, you didn't make the argument. [00:17:18] Speaker 03: I mean, are you agreeing with Ms. [00:17:20] Speaker 03: Perry that you did not make that argument? [00:17:21] Speaker 03: I don't think so, Your Honor. [00:17:22] Speaker 03: I know it's her burden on plain error. [00:17:24] Speaker 04: It's her burden, and we've quoted it. [00:17:26] Speaker 03: It's kind of ironic in an invited error case that you wouldn't make that good argument. [00:17:30] Speaker 04: Well, I think we have made the argument. [00:17:32] Speaker 04: We've quoted the instruction, and we've said that the deficiency that the defendant identifies isn't enough. [00:17:38] Speaker 04: And the instruction is otherwise closely tracks this court's pattern instruction. [00:17:44] Speaker 04: The instruction in this case is essentially, aside from the willingness to act language, this court's pattern instruction. [00:17:53] Speaker 04: And we've argued that the instruction adequately conveyed the concept of reasonable doubt to the jury, and there's no reasonable probability that the jury would have [00:18:03] Speaker 04: believe that the instruction allowed conviction based on insufficient proof. [00:18:10] Speaker 03: This is a bit of an aside, but the United States has no interest in sanctioning jury instructions that lower the burden of proof in these cases. [00:18:20] Speaker 03: It seems like you may have a joint interest with the defense bar to have the best possible burden of proof jury instruction in the District of Utah. [00:18:31] Speaker 03: However, this case comes out, it will, but it seems like there ought to be some unified interest in making sure that our 10th Circuit pattern instructions are not being diluted by local practice. [00:18:45] Speaker 04: I don't disagree with that, Your Honor. [00:18:46] Speaker 04: And in this case, we're not asking the court to specifically endorse this language. [00:18:52] Speaker 04: I want to make one quick point, though, about the stock jury instructions. [00:18:56] Speaker 04: Judge Stewart's stock instruction does not contain the willingness to act language that the defendant objects to here. [00:19:02] Speaker 04: His formulation is in terms of hesitate to act. [00:19:05] Speaker 04: Where did this language come from, then? [00:19:08] Speaker 04: The record doesn't make it clear, Your Honor. [00:19:10] Speaker 04: It's definitely willingness to act language is [00:19:14] Speaker 04: has been around for a long time. [00:19:15] Speaker 04: Cases that use it are... It's been criticized for a long time. [00:19:19] Speaker 04: It's been criticized for a long time. [00:19:20] Speaker 04: We don't dispute that. [00:19:21] Speaker 04: But the important point for this court's task in this case is whether it's... Assuming you get past the invited error and you shouldn't. [00:19:29] Speaker 04: But if you do, [00:19:31] Speaker 04: Whether it's a clear and obvious constitutional violation for an instruction that is otherwise exemplary and closely tracks the pattern instruction to include this willingness to act formulation, this court has twice held on de novo review that it isn't. [00:19:47] Speaker 04: And so even on de novo review, we should prevail all the more so on plain error that the defendant concedes would apply if the invited error doctrine doesn't. [00:19:58] Speaker 01: Gilsel, could I get you to address the footnote? [00:20:03] Speaker 04: Yes, Your Honor. [00:20:03] Speaker 04: The footnote can't alter the consequences of having jointly proposed the instruction. [00:20:10] Speaker 04: And the footnote acknowledges that the defense is jointly proposing the instruction. [00:20:15] Speaker 04: The footnote says, as a result of jointly proposing this instruction, [00:20:20] Speaker 04: the defendant asserts that plain is not intending to waive the application of plain error. [00:20:26] Speaker 04: But once the defendant acknowledges that they are joining in proposing the instruction, what consequences follow from that are a function of this court's cases and not of the defendant's stated preference in the footnote. [00:20:39] Speaker 01: The footnote is- What authority do you have for that? [00:20:44] Speaker 04: Well, I think I would just point to the court's cases that set forth the principle that when a defendant proposes an instruction, the consequences of that are invited error. [00:20:56] Speaker 04: And there's no requirement that there be evidence that the defendant specifically intended to and had in mind the legal claim that he later raises. [00:21:05] Speaker 01: Well, are you saying that that's the rule of McBride? [00:21:08] Speaker 01: That's what you're saying? [00:21:09] Speaker 01: Yes. [00:21:10] Speaker 01: And that you can't alter that as the defendant under any circumstance? [00:21:15] Speaker 01: You can't essentially say something different as this defendant apparently tried to do in a footnote? [00:21:23] Speaker 01: You just can't do that? [00:21:25] Speaker 04: You can't do that if you're still jointly proposing the instruction. [00:21:28] Speaker 04: So the defendant can choose, and the district court's order allowed this, the defendant can choose not to jointly propose an instruction and submit his own or object to one that's proposed by the government or formulated by the court. [00:21:40] Speaker 04: And the defendant had opportunity to do that, both at the time that the destructions were submitted and immediately before trial began. [00:21:48] Speaker 04: The court gave another opportunity for the parties to object to the instructions. [00:21:52] Speaker 04: But what the defendant can't do is [00:21:55] Speaker 04: jointly propose the instruction, and then drop a footnote that tries to disclaim the consequences of having done that. [00:22:02] Speaker 04: If the defendant doesn't want to jointly propose the instruction, they have to clearly not jointly propose the instruction. [00:22:08] Speaker 04: But the footnote that we're discussing explicitly says that the defendant is still jointly proposing the instruction. [00:22:16] Speaker 04: And so this court's decision in McBride and in Storm made clear that [00:22:22] Speaker 04: That is enough to trigger the invited error doctrine. [00:22:24] Speaker 04: There's no requirement that the defendant be subjectively aware of the claim that he later raises on appeal. [00:22:31] Speaker 04: In footnote 10 of this court's decision in Jerob, the court made clear that there is no such requirement in analyzing this court's previous decision in Storm [00:22:42] Speaker 04: The dissent in Jerob said that Storm was different because in Storm, the defendant had made a tactical decision to propose the instruction. [00:22:50] Speaker 04: But the majority in Jerob rejected that reading of Storm. [00:22:54] Speaker 04: And it stated, and I'm quoting now from footnote 10 in Jerob, nothing in Storm indicates that Mr. Storm or his counsel had given a moment's thought to how the relevant term should be defined for the jury. [00:23:06] Speaker 04: Quote, we have no idea whether that omission was a tactical decision or a failure to consider the issue at all. [00:23:11] Speaker 04: So the court is making clear that it doesn't matter whether it was a tactical decision or whether it was simply a failure to consider it. [00:23:19] Speaker 04: When a defendant or when any party proposes an instruction, that affirmative act is enough for this court to infer that that party has relinquished his ability to challenge that instruction on appeal. [00:23:37] Speaker 04: I want to make one quick point about the Cornelius case, Your Honor. [00:23:41] Speaker 04: In Cornelius, the defendant did not originally propose the instruction. [00:23:49] Speaker 04: This court's decision in Jared makes clear that the original submission of the instructions was merely a forfeiture by the defendant, and it only became a [00:24:00] Speaker 04: in case of invited error afterward in the context of the defendant's proposal for how the court should respond to a jury question. [00:24:10] Speaker 04: So Cornelius helps rather than undermines the point that we're making here, which is that when a party endorses an instruction by tendering it to the court, by submitting it to the court, by proposing it, that's enough to trigger an invited error. [00:24:27] Speaker 04: The defendant also argues that this invited error principle would vitiate plain error review. [00:24:36] Speaker 04: I don't think that there's any shortage of plain error review of jury instruction claims in the federal report or any reason to think that they will become extinct if the court continues to apply invited error as it has. [00:24:47] Speaker 04: If the plain error would apply even when parties jointly propose instructions, if the district court gives a different instruction from the ones that the parties submit, or if there's an omission to which neither party objected, or any number of other circumstances, I just don't think that there's any risk that that plain error review of jury instructions would become extinct. [00:25:06] Speaker 04: And in any event, it's not a bad thing for parties to be given an incentive to be very careful about the language that they propose that the district court give. [00:25:24] Speaker 04: Unless the court has any further questions. [00:25:27] Speaker 03: Thank you. [00:25:27] Speaker 03: Thank you, Council. [00:25:28] Speaker 03: Ms. [00:25:28] Speaker 03: Perry, you have some rebuttal. [00:25:40] Speaker 00: I have two observations. [00:25:42] Speaker 00: The first is that my learned friend and I are arguing about this court's footnotes in a series of cases that involve invited error and jury instructions. [00:25:51] Speaker 00: I would point to note seven in McBride, which talks about Jerob and says, waiver is always subjective. [00:25:59] Speaker 00: And we look in Jerob at whether the defendant's actions, including, which means not limited to, proposing the jury instruction, converted forfeiture into knowing an intelligent waiver. [00:26:12] Speaker 00: And this point suggests to me that we need clarification, that the District of Utah needs clarification about what trial lawyers can and cannot do to have the option of plain error. [00:26:26] Speaker 00: The footnote attempts to chart a course between the government's reading of JAROP and what's required in the trial order. [00:26:33] Speaker 00: And this brings me to my second point, which is, [00:26:37] Speaker 00: There is a stipulation in this case, but it's not an ordinary stipulation. [00:26:41] Speaker 00: The parties offered stipulations that are quite ordinary, like this was a registered firearm dealer. [00:26:47] Speaker 00: We agree to that. [00:26:48] Speaker 00: The gun traveled in interstate commerce. [00:26:50] Speaker 00: Those are sort of ordinary stipulations. [00:26:53] Speaker 00: But the stipulation to the instructions [00:26:57] Speaker 00: is more of a coerced stipulation. [00:27:00] Speaker 00: Because as I said, the trial order says, if you can't give me a complete set, then you're free to argue the ones you disagree about. [00:27:09] Speaker 00: It doesn't say you are free to just submit the arguments, the instructions that you disagree about. [00:27:18] Speaker 00: So this is an unusual kind of stipulation. [00:27:21] Speaker 00: And the footnote to which the government arguably stipulated [00:27:25] Speaker 00: is an effort to chart a course and again this court's guidance would be useful on these matters. [00:27:32] Speaker 03: Thank you counsel and you know before you sit down just on that on that point this is [00:27:37] Speaker 03: beyond these issues, but it seems to me if there's a real problem with these jury instructions that there's potential air being infected in cases in the district of Utah, that both the government and the organized defense bar might have an interest in trying to fix that. [00:27:55] Speaker 03: I'm sure Chief Judge Shelby and the other district judges would entertain in good faith [00:28:01] Speaker 03: recommendations, you know, if the U.S. [00:28:04] Speaker 03: Attorney's Office agrees with that reading, I think it might be productive to try to fix that so that we don't have future cases where we have to fight over footnotes and contacts and the like, which we do. [00:28:19] Speaker 03: That's our job. [00:28:19] Speaker 03: But this seems like an area where maybe both sides have an alignment of interest in getting the instructions done correctly. [00:28:26] Speaker 03: So I throw that out there. [00:28:28] Speaker 03: Take it back to your bosses. [00:28:29] Speaker 03: See what they think. [00:28:29] Speaker 03: Thanks. [00:28:31] Speaker 03: Council excused, the case is submitted.