[00:00:00] Speaker 04:
24-1497.

[00:00:00] Speaker 04:
Okay, Councilor Propellen, if you'd proceed, please.

[00:00:08] Speaker 03:
Thank you, Your Honors.

[00:00:09] Speaker 03:
May it please the court and my honorable opponent, I'm Blaine Myrie, counsel for defendant appellant Jonathan Arvey.

[00:00:16] Speaker 03:
The core issue in this appeal is the one I'd like to address, and that's whether the district court's jury instruction on the illegal gambling offense and knowingly instruction related to that were legal error.

[00:00:33] Speaker 03:
inconsistent with this court's decision in O'Brien, such that it was instructional error that requires reversal of that conviction.

[00:00:43] Speaker 03:
Now, in this court's O'Brien case, the court said that the illegal gambling offense is not a specific intent offense, nor is the government required to prove that the defendant knew that the gambling business violated the state law.

[00:01:01] Speaker 03:
But the court in O'Brien said that to establish the required mens rea, the government must demonstrate that a defendant knew that his or her act was one of participating in gambling.

[00:01:16] Speaker 03:
And at the jury instruction conference, this was an issue of dispute between the court and defense counsel.

[00:01:25] Speaker 03:
First, and I want to address this because the government has raised some preservation arguments.

[00:01:33] Speaker 03:
During the conference, Arve's counsel said the following with regard to the elements instruction.

[00:01:38] Speaker 03:
My preference would be to have one instruction that has the 18 USC 1955 and the language from O'Brien that is included in there as the modification.

[00:01:50] Speaker 03:
Now, if you look at the defense proposed jury instruction, it includes in the elements instruction that language from O'Brien that I quoted that the government must demonstrate that a defendant knew that his or her act

[00:02:04] Speaker 03:
was one of participation in gambling.

[00:02:07] Speaker 03:
The court's element instruction did not include that.

[00:02:11] Speaker 03:
Instead, what the court did, and this comes up later in the jury instruction conference, discussing the knowingly component.

[00:02:20] Speaker 03:
And what the instruction was that the court gave, and this is page 445 of volume one of the record,

[00:02:26] Speaker 03:
It modified the last sentence of knowingly to assert that knowledge can be inferred if the defendant was aware of a high probability of the existence of his participation in a business that had the features making it a gambling business, unless the defendant did not actually believe he was participating in a business that had those features.

[00:02:52] Speaker 03:
Now the court indicated that

[00:02:54] Speaker 03:
And this is a page 929 of volume 8.

[00:02:58] Speaker 03:
The court indicated that with this modification, it believed that this instruction tracked O'Brien.

[00:03:08] Speaker 03:
Defense counsel at that point interjected and said, we disagree that detracts O'Brien.

[00:03:14] Speaker 03:
We think O'Brien requires the exact words of O'Brien, the exact words that were included in defense counsel's proposed instruction.

[00:03:23] Speaker 04:
And on your preservation point, Mr. Meier, where exactly did the defense counsel make that last statement?

[00:03:30] Speaker 04:
Because when I looked at what the dispute was below, defense counsel wanted

[00:03:35] Speaker 04:
wanted the instruction actually to track the pattern instruction of the 10th Circuit, and he wanted therefore, and that is not what we're talking about now.

[00:03:45] Speaker 04:
We're talking about some sort of close adherence to the language of O'Brien.

[00:03:49] Speaker 04:
That strikes me as a different thing than what was that issue before the district court.

[00:03:54] Speaker 04:
And so where was this language about, I want you to track the specific language of O'Brien?

[00:04:00] Speaker 04:
What page are you referring to for that?

[00:04:02] Speaker 03:
I'm referring to page 929 where Mr. Bornstein says, we think O'Brien requires the exact words of O'Brien.

[00:04:11] Speaker 03:
In my view, that is specific enough to preserve the record, preserve the issue, particularly where defense counsel had earlier said, we believe the instruction needs, the elements instruction needs to have

[00:04:28] Speaker 03:
the 1955 language and the O'Brien modification, and that's at page 906 of volume 8.

[00:04:44] Speaker 03:
And I think what is clear is the defense counsel raised that it wanted the language from O'Brien in the elements instruction and that it objected to the modification in the knowingly instruction that didn't use the language from O'Brien.

[00:05:05] Speaker 04:
And by language, are you talking about the word participation?

[00:05:10] Speaker 03:
I'm talking the exact wording from their instruction, which was the government must demonstrate that a defendant knew that his or her act was one of participation in gambling.

[00:05:25] Speaker 03:
That's the mens rea requirement from O'Brien.

[00:05:29] Speaker 04:
And the government suggests that that is just shorthand for what the statutory terms are.

[00:05:36] Speaker 04:
And the statutory terms don't use participation.

[00:05:39] Speaker 04:
They list a number of items that would constitute gambling.

[00:05:44] Speaker 04:
They provide a basis for the mens rea.

[00:05:47] Speaker 03:
But Your Honor, when they're saying we want the exact language from O'Brien, what O'Brien says, and this is a verbatim quote, to establish the required mens rea, the government must demonstrate that a defendant knew that his or her act was one of participation in gambling.

[00:06:07] Speaker 04:
And then the question becomes, what does participation mean?

[00:06:10] Speaker 04:
And the statute tells us what participation means.

[00:06:13] Speaker 04:
And so if, if,

[00:06:15] Speaker 04:
the instruction has the statutory language that equals participation, then what difference does it make?

[00:06:23] Speaker 04:
Indeed, if all you had was the word participation, why wouldn't that have not guided the jury as to what was actually necessary?

[00:06:31] Speaker 04:
What knowledge had to run towards or relate to?

[00:06:36] Speaker 03:
Well, I think the difference your honor is between participation in gambling and participating in a business that has the features of a gambling business.

[00:06:47] Speaker 03:
And I think it boils down to a question of proof, really, and what the government had to prove.

[00:06:56] Speaker 03:
In this case, the government had to, based on the court's instructions, and this is where we think the court erred with regard to O'Brien, is on these instructions, particularly the knowingly instruction, the jury could convict Harvey

[00:07:13] Speaker 03:
simply because he owned Player One.

[00:07:16] Speaker 03:
In other words, he knowingly participated in a business.

[00:07:20] Speaker 02:
And I would turn the court's attention to- Mr. Meier, I hate to interrupt your train of thought, but I want to follow up on what you just said in the context of the preservation issue that the chief is asking about.

[00:07:37] Speaker 02:
And let me ask it in this way.

[00:07:39] Speaker 02:
The question, I think you're making a very eloquent point that on 906 and then 929, council was specifically saying, this is what I want.

[00:07:53] Speaker 02:
I want you to use the language in O'Brien.

[00:07:57] Speaker 02:
From the standpoint of Judge Gallagher, and if we were to appoint you as a judge, isn't it the logical nub of a preservation issue is why?

[00:08:13] Speaker 02:
Every defense lawyer wants their proposed language used.

[00:08:17] Speaker 02:
Every prosecutor wants their language used.

[00:08:20] Speaker 02:
For Judge Gallagher, or if I were to

[00:08:22] Speaker 02:
appoints you as Judge Myrie, the question is, why?

[00:08:27] Speaker 02:
And you make a very good argument just now.

[00:08:29] Speaker 02:
Well, the actual instruction only required proof that Mr. Harvey knowingly owned Player One, and that Player One involved features of gambling, but it never showed that he

[00:08:47] Speaker 02:
knew that he was only investing, controlling an act of gambling.

[00:08:59] Speaker 02:
The problem is, on 906 and 929, there's nothing to alert Judge Gallagher

[00:09:05] Speaker 02:
to not just the language, but the thesis that you're presenting to us.

[00:09:10] Speaker 02:
And that's my hesitation on preservation.

[00:09:15] Speaker 02:
But if you can talk me out of that, that I just want to share with you what that trepidation is on preservation.

[00:09:21] Speaker 03:
Yeah, and I appreciate that, Your Honor, and I don't claim to be as smart or eloquent as Judge Gallagher, who I have eminent respect for.

[00:09:33] Speaker 03:
But I think if you look at page 930 of the record, and I think this is where Mr. Bornstein sort of drills down on it,

[00:09:43] Speaker 03:
And this is volume eight, where following the court's comment, my record is that we object.

[00:09:51] Speaker 03:
The way this instruction has been written, because it makes it not a mens rea of general intent, but makes it a strict liability crime.

[00:10:01] Speaker 03:
Now i think what he really means by that and if you look at the last couple sentences there.

[00:10:07] Speaker 03:
He says the way the court is proposing to do this is to make it a strict liability crime because if you own a business.

[00:10:15] Speaker 03:
Then you cannot but have the knowledge that the court is inferring.

[00:10:20] Speaker 03:
And therefore, there is no mens rea.

[00:10:23] Speaker 03:
If you own the business, you have the mens rea.

[00:10:27] Speaker 03:
And I think that's the point that I'm making is are it's clear on the record that are they knowingly owned player one.

[00:10:37] Speaker 03:
no question about that.

[00:10:40] Speaker 03:
And our contention is that under the instruction that was enough to satisfy the mens rea requirement on the instructions as given by Judge Gallagher.

[00:10:49] Speaker 03:
But that's not sufficient to satisfy what O'Brien requires, which is that

[00:10:57] Speaker 03:
Arve's knowledge be that he was engaged in an act, acts that constitute participating in gambling.

[00:11:07] Speaker 03:
And I know it seems somewhat convoluted and somewhat nuanced.

[00:11:11] Speaker 03:
And I know I struggled with it.

[00:11:13] Speaker 03:
But I think there is a real difference that mattered in this case, particularly where you look at the evidence showing a lack of knowledge on Arve's part.

[00:11:22] Speaker 03:
And I would refer the court to the supplemental record

[00:11:26] Speaker 03:
Exhibit 1D, which is the body cam video, five and a half minute excerpt that was recorded by the undercover officer.

[00:11:35] Speaker 01:
Can I interrupt just for a second before we get to that point?

[00:11:39] Speaker 01:
Why doesn't the paragraph that comes after the three elements in instruction number 15 assist the jury if they really have some question about whether he needed to know he was managing, supervising, directing, or owning

[00:11:54] Speaker 01:
all are part of a gambling business, why doesn't that paragraph which says a person conducts a gambling business if he participates in the operation of the gambling business in some function necessary to the operation of the gambling business?

[00:12:11] Speaker 01:
And then it explains the law, which is a mere better customer isn't involved in the conduct of the business.

[00:12:17] Speaker 01:
That should have, if they had any question about it, shouldn't that have clarified to them that

[00:12:22] Speaker 01:
Participation is required in the operation of the gambling business.

[00:12:30] Speaker 01:
Isn't that pretty simple and straightforward for the jury?

[00:12:33] Speaker 01:
It's not just participation.

[00:12:35] Speaker 01:
It's not just management.

[00:12:36] Speaker 01:
It's not just ownership.

[00:12:38] Speaker 01:
It's participation in the gambling business.

[00:12:42] Speaker 03:
But, Your Honor, on the instructions as giving, knowingly owning the business would have been sufficient, because that is participating in the business.

[00:12:52] Speaker 01:
I'm asking, does this clarify if you really think that they're confused or that's somehow ambiguous?

[00:12:58] Speaker 01:
Doesn't this paragraph kind of clarify what?

[00:13:01] Speaker 01:
No, I don't think.

[00:13:02] Speaker 01:
Participation, sorry, but participation encompasses all of those terms that were used in the first element.

[00:13:10] Speaker 01:
Clearly that's all about participation and that's what you're talking about here.

[00:13:14] Speaker 01:
And that first paragraph explains that you've got to participate in the operation of a gambling business.

[00:13:23] Speaker 01:
participation in the operation of a gambling business.

[00:13:26] Speaker 01:
If the jury was confused by that first paragraph, why didn't that help them out, is what I'm saying.

[00:13:33] Speaker 03:
Well, I would point out, Your Honor, that that paragraph is also included in, and I think it comes from the pattern of 10th Circuit instruction, but it's also included in the defendant's proposed instruction.

[00:13:44] Speaker 03:
And I think the problem is that it doesn't have the distinguishing factor between

[00:13:50] Speaker 03:
participation in a business that has the features of a gambling business versus participating in acts that constitute gambling, which is really what O'Brien says.

[00:14:00] Speaker 03:
I think it's a subtle distinction, but I think it's a distinction that has a difference.

[00:14:05] Speaker 03:
And in this case, it was reversible error to not include the O'Brien language.

[00:14:12] Speaker 03:
And I'd like to reserve the last minute for rebuttal, if I may.

[00:14:16] Speaker 04:
Yes.

[00:14:19] Speaker 04:
Well, they were from the government.

[00:14:20] Speaker 00:
May I please the court?

[00:14:22] Speaker 00:
Elizabeth Ford Maloney on behalf of the United States.

[00:14:25] Speaker 00:
The jury instructions here comported with 18 USC 1955 and this court's decision in United States versus O'Brien.

[00:14:34] Speaker 00:
Now, as an initial matter, for the reasons we set out in the answer brief, we believe this issue is unpreserved.

[00:14:39] Speaker 00:
And I'd like to make a few observations with regard to the record sites in the reply brief.

[00:14:44] Speaker 00:
So starting on volume eight, page 905, I think the fairest reading of the record was not that the defense was asking for additional language.

[00:14:54] Speaker 00:
This was in the context of asking that the elemental instruction be split into two different instructions.

[00:15:00] Speaker 00:
And so the defense is saying we would like the federal law in one instruction and basically the state elements in another instruction.

[00:15:07] Speaker 01:
And so is that is that the is the

[00:15:11] Speaker 01:
Volume 8, page 905, the statements of Martha Eskison at the instruction conference.

[00:15:18] Speaker 00:
Yes, 905 and 906.

[00:15:20] Speaker 01:
I think her statements were broader than that.

[00:15:22] Speaker 01:
She asked the district court, you're right, to split the court's proposed instructions into two.

[00:15:27] Speaker 01:
And then she said,

[00:15:28] Speaker 01:
with one instruction combining the elements of Section 1990-1955.

[00:15:33] Speaker 01:
And then I think she made a really important statement right there.

[00:15:35] Speaker 01:
This is along with language from O'Brien included in there.

[00:15:40] Speaker 01:
And by that, it appears she's referring to the instruction that they submitted that the court had rejected.

[00:15:47] Speaker 00:
So I disagree, Your Honor, that that's not clear at all.

[00:15:48] Speaker 01:
I mean, if she was referring to that, if she is referring to that in there,

[00:15:54] Speaker 01:
She said as a modification, meaning she's asking the court to modify the Section 1955 instruction by pulling it away from the state law and by including language from O'Brien included in there.

[00:16:08] Speaker 01:
If she's saying in there, meaning the instruction she's referred to that was submitted, they have the exact language that they're asking for in that instruction, which the court rejected.

[00:16:21] Speaker 01:
and she seems to be repeating her request for it here.

[00:16:24] Speaker 01:
Why isn't that enough?

[00:16:25] Speaker 00:
I disagree, Your Honor, because remember that the instruction as given to the jury, the final instruction on page 441 of volume one, it already did have language from O'Brien, and it's just as possible that that's the language that counsel was referring to.

[00:16:41] Speaker 01:
Well, if she's referring to in there, she wants the language from O'Brien included in there, she may be saying,

[00:16:50] Speaker 01:
The language from O'Brien that she included specifically, which they've now repeated.

[00:16:54] Speaker 01:
I mean, isn't it ambiguous enough that we could give them the, at least having made this along with the comments that Borensohn made about objecting to mens rea, strict liability versus general tent.

[00:17:08] Speaker 01:
The court understood where they were going.

[00:17:10] Speaker 01:
I mean, and what they had proposed specifically, which was this very specific language that they have proposed in their instruction.

[00:17:20] Speaker 00:
So, Your Honor, I guess I disagree to the extent that there's any ambiguity in the record, and I do agree that maybe she was referring to that language from O'Brien, but it's just as possible that Miss Eskason was referring to the language that was already in there.

[00:17:33] Speaker 00:
And to the extent that there is ambiguity, I think the fact that the court never said, counsel, I hear your argument about you want that extra line from O'Brien, and this is why I'm excluding it.

[00:17:43] Speaker 00:
That never happened.

[00:17:44] Speaker 01:
Well, he didn't talk about any of the language.

[00:17:47] Speaker 01:
He specifically referred to O'Brien, whether she was referring to this language that they had already suggested or some other language.

[00:17:55] Speaker 01:
She was referring to O'Brien, and the court never specifically dealt with that language.

[00:18:00] Speaker 01:
So I'm not sure how we can, you know,

[00:18:03] Speaker 00:
I think the absence of a record on that point is particularly telling.

[00:18:07] Speaker 00:
I also think that the discussion.

[00:18:09] Speaker 00:
The discussion on 929 and 930, that was about a wholly separate instruction.

[00:18:14] Speaker 00:
That conversation was about the knowingly instruction.

[00:18:16] Speaker 00:
And the government agrees that that objection, that issue on appeal is preserved because that was the context in which that argument.

[00:18:23] Speaker 00:
And that's the mens rea strict liability versus general intent.

[00:18:27] Speaker 00:
Right.

[00:18:27] Speaker 00:
That entire conversation was prefaced with the court said, okay, knowingly, who disputes this instruction, basically.

[00:18:34] Speaker 00:
But regardless, I'd like to turn to O'Brien because that case is really at the heart of this appeal.

[00:18:40] Speaker 00:
So this court made plain there that 1955 is a general intent crime.

[00:18:47] Speaker 00:
The defendant does not have to know that the gambling business violated state law in order to be guilty of the crime.

[00:18:53] Speaker 00:
He only needs to knowingly commit an act that's made unlawful by statute.

[00:18:58] Speaker 00:
And the act made unlawful by statute, per the statutory text,

[00:19:02] Speaker 00:
is participation in an illegal gambling business.

[00:19:04] Speaker 00:
And yes, that participation is a shorthand for those verbs in the statute.

[00:19:09] Speaker 00:
And we know that from the footnotes of the Supreme Court case, Sanabria.

[00:19:13] Speaker 00:
So the rub of this case is O'Brien's subsequent passage that the government must demonstrate the defendant knew that his or her act was one of participation in gambling.

[00:19:25] Speaker 00:
I read Mr. Arvey's arguments to mean that something more than general intent is required by the statement.

[00:19:31] Speaker 00:
Otherwise, the instructions assertion in the first element that the defendant and four more persons knowingly, verbs, verbs, verbs, all or part of a gambling business would be sufficient.

[00:19:44] Speaker 00:
But to read that language of O'Brien to mean that there's something more than general intent required, that's at odds with the other language of O'Brien and would render that case internally inconsistent.

[00:19:55] Speaker 00:
Because again, O'Brien makes clear 1955 is a general intent crime.

[00:20:01] Speaker 04:
So I think that this court should instead... Well, your argument suggests that they are seeking something more than they being the defendant and seeking something more than general intent.

[00:20:12] Speaker 04:
What do you construe them to be seeking?

[00:20:15] Speaker 04:
I mean, what level of mens rea do you construe them to be seeking?

[00:20:19] Speaker 00:
I think it sounds to me that this is asking for some sort of general intent plus getting toward a willfully or specific meaning.

[00:20:26] Speaker 04:
What would that they would, I mean, to be more concrete, what do you, what do you understand them to think to be saying needs to be shown in terms of intent?

[00:20:37] Speaker 00:
So I don't want to speak for opposing counsel, but I, well, I'm, I'm trying to understand their arguments.

[00:20:42] Speaker 04:
I want to understand, uh, play off of what you understand them to be made.

[00:20:46] Speaker 00:
So I think it means that,

[00:20:48] Speaker 00:
there has to be knowledge that the business was violative of state law.

[00:20:53] Speaker 00:
It's satisfied gambling under state law because that's what knowingly referred to.

[00:20:59] Speaker 04:
I didn't understand.

[00:20:59] Speaker 04:
Mr. Meire, as far as I know, didn't even mention state law when he was talking about mens rea.

[00:21:05] Speaker 04:
So I mean, I don't think I mean, that's a whole separate issue, is it not?

[00:21:08] Speaker 04:
I mean, the idea that you have to know you're violating state law, that would be a willfully to your point, mens rea.

[00:21:14] Speaker 04:
But I don't think I didn't understand that to be what he was saying.

[00:21:18] Speaker 04:
I thought he was saying that and this is where I want your your to to

[00:21:22] Speaker 04:
I understood him to be saying that as the text of the statue is currently constructed, you wouldn't have to know that your acts were participation in a gambling business.

[00:21:39] Speaker 04:
You would just have to know that you had a business that had features of gambling.

[00:21:45] Speaker 00:
I think that that's correct.

[00:21:46] Speaker 00:
And that was conveyed in the knowingly instruction.

[00:21:49] Speaker 04:
And I think that also the first element- And is that statement enough then under O'Brien that you know that you're engaged in a business that has features of gambling?

[00:22:00] Speaker 00:
That adds up to gambling under state law, right.

[00:22:04] Speaker 04:
That's enough.

[00:22:05] Speaker 00:
I think that is enough.

[00:22:06] Speaker 00:
I think that that's what O'Brien tells us.

[00:22:08] Speaker 00:
And I think that the reason that O'Brien tells us that, first of all,

[00:22:11] Speaker 00:
It's supported by the sufficiency analysis that's in O'Brien.

[00:22:15] Speaker 00:
You know, the dispute there wasn't whether or not gambling was occurring at the business.

[00:22:20] Speaker 00:
It was, what did the defendant know about those actions?

[00:22:24] Speaker 00:
Not what they knew about state law that wasn't discussed.

[00:22:27] Speaker 00:
It was what they knew about the specificity of the types of transactions that were going on at that business.

[00:22:34] Speaker 02:
I'm sorry to interrupt you, don't lose your train of thought, but can I ask you a question about your understanding of how this instruction intersects with O'Brien?

[00:22:46] Speaker 02:
Are you saying that O'Brien would uphold a conviction if the undisputed evidence say is that Bob Bacharach owns the Bob Bacharach warehouse

[00:23:00] Speaker 02:
I know it, I specifically purchased the stock for it, and unbeknownst to me, the Bob Baccarat warehouse is a community where there's nothing but blackjack tables.

[00:23:13] Speaker 02:
I've never set foot in this place, and I don't know that it's all weather state law.

[00:23:19] Speaker 02:
characterizes it as gambling.

[00:23:22] Speaker 02:
No human being would do anything but consider it as gambling.

[00:23:26] Speaker 02:
Would that suffice under, under O'Brien?

[00:23:29] Speaker 02:
And I assume not.

[00:23:31] Speaker 02:
And I assume that that, and as I understand it, that's what Mr. Meyer's argument is, is that the instruction would allow a conviction under that scenario.

[00:23:39] Speaker 00:
No, I agree that that's not permissive.

[00:23:42] Speaker 00:
That would not be sufficient evidence under the statute if the defendant did not know the activities that were conducted at the business that they owned.

[00:23:49] Speaker 00:
But and I think that the jury or that the jury instructions really cautioned against a conviction in that regard.

[00:23:55] Speaker 00:
I think the paragraph that Judge Moritz pointed to, as well as the first element of the crime, which says the defendant and former persons must knowingly conduct verb, verb, verb,

[00:24:07] Speaker 00:
a gambling business, so that knowingly applies to the gambling business.

[00:24:11] Speaker 00:
They don't have to know that it's a gambling business under state law, but on the flip side of that instruction, there's a definition of what is a gambling business.

[00:24:19] Speaker 02:
Well, let me play devil's advocate on that, Ms.

[00:24:22] Speaker 02:
Malani.

[00:24:22] Speaker 02:
So under my scenario in instruction 15, I suppose it depends on a grammatical dissection of the sentence.

[00:24:31] Speaker 02:
Under my scenario, I did knowingly own all or part of a gambling business.

[00:24:37] Speaker 02:
you know, it's the modifier gambling that modifies business.

[00:24:41] Speaker 02:
And so I know, I knowingly owned all of that business.

[00:24:45] Speaker 02:
It had the features of gambling.

[00:24:47] Speaker 02:
I just didn't know that it had the features of gambling.

[00:24:49] Speaker 02:
And that seems to be, you know, arguably consistent with the conviction.

[00:24:55] Speaker 02:
If the jury were to strictly follow, uh, jury instruction number 15, I suppose it depends on whether or not the knowingly, um, uh, uh,

[00:25:05] Speaker 02:
the knowing clause modifies gambling or just modifies business?

[00:25:11] Speaker 00:
So I don't think that there's been any argument in this case about that knowingly didn't apply to the gambling business.

[00:25:16] Speaker 00:
And I think that the fair reading of the instruction is that it did, and lest there be any confusion.

[00:25:22] Speaker 00:
Again, this court's authority has said that jury instructions don't need to be perfect.

[00:25:27] Speaker 00:
They just have to give the jury the ideas that they need to resolve, the issues they need to resolve, and not mislead them.

[00:25:32] Speaker 00:
And I think that if there was any reason to be doubtful about whether or not the jury knew its duty here, the knowingly definition

[00:25:41] Speaker 00:
which talked about in when knowledge can be offered, I think that that clarified any dispute about what exactly the defendant need to know in this case.

[00:25:52] Speaker 00:
I think that another reason, because there wasn't really a dispute here that the defendant didn't know what was going on at the business, I think that that is one of the reasons why any instructional error, if there even was one, if this issue is even preserved,

[00:26:09] Speaker 00:
I think that any imprecision in the language really is harmless because the defendant's theory wasn't that he didn't know what was going on and nor was the theory that he couldn't somehow be owning or something of this player one arcade.

[00:26:23] Speaker 00:
It was pretty undisputed that he was very, very involved in this case or in this arcade.

[00:26:29] Speaker 00:
And so I think that's another one of the reasons why this court can affirm.

[00:26:33] Speaker 00:
I did want to touch on to the extent that there is any

[00:26:37] Speaker 00:
question about the definition of gambling, I read the reply brief to sort of concede that issue, that the jury was correctly instructed on the meaning of gambling as it pertained to this case in the proper Colorado framework.

[00:26:51] Speaker 00:
And I also think that for the reasons that we've been having all this discussion about what exactly that second passage in O'Brien meant,

[00:27:00] Speaker 00:
it could have misled the jury.

[00:27:02] Speaker 00:
So I don't think it was an abusive discretion for the court to say this language on its own without this larger context of that basically the discussion that we're having right now would have just confused the jury.

[00:27:12] Speaker 00:
So I think that this was wholly within the district court's authority to exclude this language, not to risk confusion.

[00:27:19] Speaker 00:
And I think that the jury was properly instructed in this regard.

[00:27:23] Speaker 04:
Did they entirely concede on the gambling instruction?

[00:27:27] Speaker 04:
I mean, they spoke in the reply brief, there was a reference to the fact that we understand that game of skill does not apply in the context of simulated gambling.

[00:27:37] Speaker 04:
But then there was some somewhat cryptic reference to the idea that perhaps

[00:27:42] Speaker 04:
game of skill by virtue of the pattern instruction language would still suggest a game of, I mean, by virtue of the pattern instruction, there would be a suggestion that game of skill could still apply in this context.

[00:27:57] Speaker 04:
So I'm not sure there was an entire concession on that.

[00:28:01] Speaker 00:
Right.

[00:28:02] Speaker 00:
And so how I read that language in the footnote of the reply brief was that under the definition of gambling, as the jury was instructed in this case, there are a couple of different ways that that definition can be satisfied.

[00:28:15] Speaker 00:
It's risking money based on lot.

[00:28:18] Speaker 00:
That's one way.

[00:28:18] Speaker 00:
Chance, that's another way.

[00:28:20] Speaker 00:
The operation of a gambling device, that's a third way.

[00:28:23] Speaker 00:
Or the happening or outcome of an event, including a sports event, over which the person has no control.

[00:28:30] Speaker 00:
So I suppose that the jury was instructed in that regard that they could find that that's what gambling, under that theory, if that's what they found, that gambling could be satisfied with that definition, but that's not the only definition that was applicable here.

[00:28:45] Speaker 00:
If there are no further questions,

[00:28:47] Speaker 00:
I think the jury was correctly instructed to the extent that this court reaches the question at all and any error was harmless regardless.

[00:28:53] Speaker 00:
And we'd ask for this court to affirm.

[00:28:59] Speaker 04:
Okay, thank you.

[00:29:05] Speaker 04:
Mr. Myrie, what did you mean by footnote three in the reply brief?

[00:29:09] Speaker 04:
I mean, what is, are you conceding on the gambling instruction or what are you saying there?

[00:29:13] Speaker 03:
Your Honor, we're conceding on the gambling instruction that it was based that the exception for games of skill is not in the 1810.5 version.

[00:29:27] Speaker 03:
That's clear, and the government is correct on that point.

[00:29:31] Speaker 03:
What I'm not conceding is that a game of skill is gambling, or that something that is a game of skill

[00:29:42] Speaker 03:
is is necessarily gambling.

[00:29:46] Speaker 03:
There was some notion in the record that these were games of these couldn't be games of skill.

[00:29:54] Speaker 03:
The government didn't bring in an expert to testify these were merely games of chance.

[00:29:59] Speaker 03:
And I see my time has expired.

[00:30:01] Speaker 04:
Now, and I want to follow up.

[00:30:02] Speaker 04:
So you're saying that there was no statutory exemption, but it's still the case that OK, that that game a game of skill would not be gambling.

[00:30:11] Speaker 03:
A game of skill.

[00:30:13] Speaker 04:
If the jury could have found that a game of skill was not gambling for purposes of this statute.

[00:30:17] Speaker 03:
Correct.

[00:30:17] Speaker 03:
Based on the pattern Colorado jury instructions.

[00:30:23] Speaker 02:
But you don't have a distinct, but you're withdrawing your separate challenge to the instruction.

[00:30:29] Speaker 03:
Correct.

[00:30:30] Speaker 03:
That is correct, Your Honor.

[00:30:31] Speaker 03:
Yes.

[00:30:32] Speaker 03:
Yes.

[00:30:32] Speaker 03:
I know it's quite confusing this.

[00:30:36] Speaker 04:
Okay.

[00:30:37] Speaker 04:
Any other questions for Mr. Murray?

[00:30:39] Speaker 04:
All right.

[00:30:39] Speaker 04:
Thank you, counsel.

[00:30:40] Speaker 04:
Case is submitted.

[00:30:42] Speaker 03:
Okay.

[00:30:42] Speaker 03:
Thank you, your honors.

[00:30:43] Speaker 03:
Thank you.