[00:00:00] Speaker 01:
257003, United States versus Phillips, counsel for appellant, if you would make your appearance and proceed, please.

[00:00:12] Speaker 03:
May it please the court?

[00:00:13] Speaker 03:
I'm Neil van Dalsum.

[00:00:15] Speaker 03:
I'm here for the defendant appellant, Thomas Raymond Phillips.

[00:00:23] Speaker 03:
Under the law of this circuit, in a murder case,

[00:00:30] Speaker 03:
When the issue of imperfect self-defense is raised and supported by the evidence, it is plain error for the court to fail to instruct the jury of the government's burden to disprove imperfect self-defense beyond a reasonable doubt.

[00:00:53] Speaker 03:
That was the court's holding in Maryboy.

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And that is what happened at trial in this case.

[00:01:00] Speaker 01:
Even though the government in a footnote seemed somewhat questioning about whether there was invited error, why isn't there invited error here?

[00:01:14] Speaker 01:
I mean, you had a situation where didn't the defense counsel ask for an instruction and have an opportunity to review the instruction and that the district court gave the instruction that the defendant wanted?

[00:01:30] Speaker 03:
No, I believe there you're referring to a discussion of the diminished capacity instruction.

[00:01:41] Speaker 01:
No, I don't think so, but you can talk about that one if you want.

[00:01:44] Speaker 01:
I think that in both instances, was it not a situation where the defense asked for those instructions?

[00:01:52] Speaker 03:
What happened is the defendant did not submit an instruction pre-trial that requested a not imperfect self-defense element.

[00:02:04] Speaker 03:
Then at trial, the district court produced an instruction that was intended to instruct the jury on the ideas of self-defense and imperfect self-defense.

[00:02:15] Speaker 03:
The government objected to any instructions about self-defense or imperfect self-defense.

[00:02:23] Speaker 03:
Defense counsel argued in favor of giving an instruction, and then there was no objection made to the instructions as actually given.

[00:02:33] Speaker 03:
But what we really have is the district court, Sue Esponte, deciding to instruct on imperfect self-defense and then a lack of an objection to the instruction as given.

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And under the law of this circuit, just failing to object to an instruction is reviewed for plain error.

[00:02:58] Speaker 01:
But it's not just failing to object.

[00:03:00] Speaker 01:
You the defense counsel, when the court presented the instructions, the defense counsel advocated for it.

[00:03:07] Speaker 01:
Right.

[00:03:08] Speaker 01:
I mean, the the prosecutor said we don't need them and you advocated for it.

[00:03:12] Speaker 01:
So it's not that you it's not a situation where you just didn't object to the presentation of the instruction.

[00:03:18] Speaker 01:
You said, I want that instruction.

[00:03:21] Speaker 01:
Right.

[00:03:22] Speaker 03:
We want an instruction on the issues of

[00:03:26] Speaker 03:
In reality, if you go to the argument that was made, which is quoted at page 22 of my opening brief, the argument is, look, Judge, this could be involuntary manslaughter.

[00:03:43] Speaker 03:
And the involuntary manslaughter would be based upon a finding of imperfect self-defense.

[00:03:52] Speaker 03:
And that is what the debate was about, was is imperfect self-defense, is self-defense at issue in this case?

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And defense counsel said, yes, those are at issue.

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This could be an involuntary manslaughter case.

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And the court proceeded with the instruction as given.

[00:04:16] Speaker 03:
As the court drafted, but there was not a, yes, that is a perfect explanation of the law.

[00:04:24] Speaker 03:
The other thing is the error in the instruction is really in the first degree murder and second degree murder in voluntary manslaughter instructions.

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That's where the problem arises that is the plain error.

[00:04:41] Speaker 03:
It is the failure to add as an element to those offenses that it's not imperfect self-defense.

[00:04:50] Speaker 01:
No, I'm sorry.

[00:04:52] Speaker 01:
I didn't mean to interrupt.

[00:04:53] Speaker 01:
But OK, let's go with that for a second.

[00:04:56] Speaker 01:
OK, the error as you identify it relates to the who has the burden of proof on imperfect self-defense, right?

[00:05:05] Speaker 03:
Correct.

[00:05:06] Speaker 01:
Okay, and let's assume for the moment we are under plain error rubric and we'll put aside the question of invited error.

[00:05:14] Speaker 01:
Okay, because I understood you to start your argument on that basis.

[00:05:18] Speaker 01:
Let's go with that for a second.

[00:05:19] Speaker 01:
If we are under plain error, what would stop

[00:05:25] Speaker 01:
how did you satisfy your burden as to prom three?

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I mean, it seems to me that in this situation, there was no suggestion that he was threatened at all, that Mr. Phelps was threatened, who threatened him, and how would the, and so why would he have been prejudiced by the instruction as it relates to plain error and effect on substantial rights?

[00:05:53] Speaker 01:
Clarify that for me, please.

[00:05:55] Speaker 03:
The court, the district court, exercising its discretion, having reviewed all of the evidence, determined that imperfect self-defense was a question for this jury to resolve.

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That determination was supported by quite a bit of evidence.

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The defendant had just been beaten up.

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He'd just sustained three blows to the head that were pretty serious.

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So serious that a witness testified that any one of those blows could have killed the person.

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He is then, then leaves the bar.

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He's disoriented.

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He doesn't know his own wife, according to her, strikes his- That's a little bit of a liberal interpretation,

[00:06:46] Speaker 04:
Well, she never says that.

[00:06:49] Speaker 03:
She actually testifies.

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She actually testifies that I don't think he knew who I was as part of her testimony.

[00:06:59] Speaker 04:
Okay.

[00:07:00] Speaker 03:
He doesn't know where he is.

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He doesn't know what's going on.

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He had post-traumatic stress disorder before this event even happened that was diagnosed by the VA.

[00:07:16] Speaker 03:
After he's reviewed, it's confirmed, yes, he does have PTSD.

[00:07:21] Speaker 03:
There was expert testimony that his behavior was consistent with having a traumatic brain injury.

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There was expert testimony that a person with PTSD and suffering from a traumatic brain injury, which he appeared to be, would experience an inability to assess dangers.

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properly respond to dangers and could be in a disassociative state, meaning that you are not in connection with reality.

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The shots were not fired immediately upon him reaching his truck.

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The shots were fired when one of the people who had been involved in smacking his head real hard three times exited the door of the bar.

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That's when the shooting began.

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Taking all of this together, there is a factual basis and the district court correctly found there was a factual basis for a jury to develop reasonable doubt.

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And that's a key point too.

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For purposes of this error, the question is not whether Mr. Phillips proved that he acted in imperfect self-defense, it's whether a juror could have a reasonable doubt about that fact.

[00:08:40] Speaker 05:
Mr. Dobson, I'm sorry to interrupt you, so I hope you remember your train of thought.

[00:08:47] Speaker 05:
But I have a couple of questions.

[00:08:49] Speaker 05:
But the first, the antecedent question is, can we take into account that the jury found beyond a reasonable doubt that he committed premeditated murder?

[00:09:02] Speaker 05:
I know you have an argument that you alluded to a moment ago that, well, the court, that may have been attributable defect in the instructions because maybe the imperfect self-defense was not included among the elements that the government had to disprove.

[00:09:18] Speaker 05:
But I'm just asking you, can we take into account that the jury found premeditated murder?

[00:09:29] Speaker 03:
I don't think you should on the record presented in this case.

[00:09:33] Speaker 05:
Well, that's a different question.

[00:09:35] Speaker 05:
That's my second question.

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So I'm just asking you if legally, if there was some legal impediment to considering it.

[00:09:43] Speaker 03:
But I would say judge is in two cases, Sago and Walker.

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This court has commented on the idea that, well, in this case, the jury found premeditation.

[00:09:57] Speaker 05:
Well, and also in Rainford, and in Maryboy.

[00:10:06] Speaker 05:
But that's really a good prelude to my question.

[00:10:09] Speaker 05:
So Judge Hartz, although he did include saying in the facts of this case, how likely is it on the facts of this case that the jury would conclude that he premeditated the murder, but then in fact decided to kill out of fear?

[00:10:26] Speaker 05:
There's a sentence in Mary Boy itself where Judge Phillips specifically says that if the jury found that Mary Boy had intentionally shot Montewine, the decedent,

[00:10:40] Speaker 05:
the instructional error would not have affected his substantial rights.

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And then in the Rainford case that you cited, we actually included language interpreting Sago to mean that a conviction for first degree murder could reduce the likelihood that a jury could have found involuntary manslaughter based on self-defense.

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So it seems to me that this trilogy of cases that we've recently stated

[00:11:05] Speaker 05:
It doesn't say it forecloses the finding that a jury might have found imperfect self-defense, but basically it elicitates Judge Hart's skepticism that if the jury finds that I decided in advance to go and kill Joe Shmoe, then how likely is it that if the jury had said, well, the government had a burden to prove beyond a reasonable doubt that I had not acted in

[00:11:30] Speaker 05:
in imperfect self-defense, how likely is it that I acted defensively, irrationally, if the jury also found that I had premeditated the murder?

[00:11:45] Speaker 05:
And that seems to be at least a fairly logical reason to at least express skepticism, particularly in Prong 3 of plain error.

[00:11:55] Speaker 05:
So anyway, that's my long-winded question for you.

[00:11:58] Speaker 03:
In both Sago and Walker, if you look at the facts of the case,

[00:12:04] Speaker 03:
There is simply no evidence to support the idea of self-defense at all.

[00:12:12] Speaker 03:
In SIGO, a guy goes over to somebody's house and he comes, he's trying to get him to come out, and then with no violence, no anything, no threats, no nothing, he shoots the person when he comes out of his house.

[00:12:25] Speaker 05:
But he thinks that he's coming, but he thinks he's mad.

[00:12:29] Speaker 05:
Right?

[00:12:31] Speaker 03:
There's no evidence to suggest that he had any reason to think he was mad.

[00:12:37] Speaker 05:
And it, well, you can make an argument that Tommy didn't have a reason to think that when he opened the door that he was, you know, that he was going out to, you know, uh, to, to renew this, this, this, this killing, but it, but I don't know that the quibbling on about the facts and you really get to argue, but I'm not trying to be argumentative with you, but I, but it just seems to be that if,

[00:13:00] Speaker 05:
If my memory is right is that he's just sitting there.

[00:13:07] Speaker 05:
The guy is coming to him, the decedent is coming to him.

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He's not armed.

[00:13:16] Speaker 05:
His wife had testified that he's got a smile on his face.

[00:13:19] Speaker 05:
He's happy to see this young kid.

[00:13:22] Speaker 05:
and the guy irrationally thinks he's bad, that he shouldn't have been coming to his house, and then he kills him.

[00:13:29] Speaker 05:
And then Judge Hart says, well, how likely is it that if the jury found that the guy had come over to the house with a premeditated design to murder the guy, how likely is it that the jury would have come to a different conclusion?

[00:13:44] Speaker 05:
And that seems to be a pretty good paraphrase of,

[00:13:50] Speaker 05:
of the facts of this case.

[00:13:53] Speaker 03:
But anyway, I would point out in both Britt and Rainford, neither one of those were plain error review.

[00:14:02] Speaker 03:
But in both of those cases, this court reversed first degree murder convictions because of errors in the instructions on imperfect self-defense.

[00:14:12] Speaker 03:
So the fact that the conviction is first degree murder is certainly not dispositive.

[00:14:18] Speaker 03:
And what should be dispositive more so are two things.

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One, the underlying facts.

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This case is different than Sago and Walker in that

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This is a person who has PTSD, who just got hit in the head three times very hard and appears to be very disoriented about what's going on and reported after the fact that he believed he was tackled in the parking lot.

[00:14:46] Speaker 03:
So he thought that there was, there is evidence that he thought that he had been assaulted in the parking lot also.

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Additionally, there's a case that's been cited by both parties, United States versus Iran.

[00:15:03] Speaker 03:
If the court finds that there is a basis to give the instruction and it's not given, a plainly erroneous jury instruction affects a defendant's substantial rights if the instruction concerns a principal element of the defense or an element of the crime, thus suggesting that the error affected the outcome of the case.

[00:15:25] Speaker 03:
And I would submit that's what we have here.

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If the instruction left out,

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malice aforethought, everybody would say, yep, that seems like a big problem.

[00:15:36] Speaker 03:
Leaving out something that negates malice aforethought is also a big problem and affects a substantial right.

[00:15:44] Speaker 03:
If the instruction was warranted as the district court basically found, then it affects a substantial right to not instruct on the burden of proof and mislead the jury

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about who has the burden and not really even tell them what that burden is.

[00:16:06] Speaker 03:
And I'm out of time.

[00:16:09] Speaker 01:
Anything more for defense counsel?

[00:16:12] Speaker 01:
All right, thank you, counsel.

[00:16:14] Speaker 01:
We'll hear from the government now.

[00:16:16] Speaker 05:
Thank you.

[00:16:18] Speaker 02:
Good afternoon, Your Honor.

[00:16:19] Speaker 02:
Jared Lehman for the United States.

[00:16:22] Speaker 02:
I think the facts of this case are really what's driving the answer of plain error.

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And it's extraordinarily important to understand that the defendant was not in some sort of dazed or confused or disoriented state.

[00:16:37] Speaker 02:
This was not the type of bar fight where the other patrons

[00:16:41] Speaker 02:
beat or punched or struck or kicked the defendant.

[00:16:46] Speaker 02:
This was their attempt to get him out of the bar.

[00:16:49] Speaker 02:
Were they rough with him?

[00:16:51] Speaker 02:
Absolutely.

[00:16:51] Speaker 02:
Did they take him to the ground?

[00:16:53] Speaker 02:
Absolutely.

[00:16:54] Speaker 02:
But no one was kicking him.

[00:16:56] Speaker 02:
No one was beating him or anything like that.

[00:16:59] Speaker 05:
They stood him up.

[00:17:01] Speaker 05:
You're saying from the video that a jury couldn't find

[00:17:08] Speaker 05:
that when these three rather large fellows grab, and I'm not saying he wasn't provocative or shouldn't have been acting the way he did.

[00:17:18] Speaker 05:
I don't think Mr. Van Dalsum was arguing that, but are you saying when they, those three big guys took his head and slammed it against the bar, and then when you call it talking, taking to the ground, I call it throwing them to the ground, his head hits the concrete.

[00:17:38] Speaker 05:
The evidence is, as Mr. Van Dalsum said, that the testimony was that this could very well have caused a traumatic brain injury.

[00:17:46] Speaker 05:
Are you saying that he wasn't entitled to the instruction on proof beyond a reasonable doubt because these guys were just being gentle with him?

[00:17:59] Speaker 02:
Correct.

[00:18:00] Speaker 02:
We have to take it a step further.

[00:18:01] Speaker 04:
That's the same video that I watched.

[00:18:03] Speaker 02:
Your Honor, we have to take it a step further and we have to couple it with what they did after that.

[00:18:08] Speaker 02:
They gave, they stood him up.

[00:18:10] Speaker 02:
They gave him his things.

[00:18:12] Speaker 02:
They told him they were calling the police.

[00:18:14] Speaker 02:
They sent him out of the bar.

[00:18:17] Speaker 02:
The fight was done.

[00:18:18] Speaker 02:
Everything was over.

[00:18:19] Speaker 02:
It was clear that patrons intent was to kick him out of the ball.

[00:18:24] Speaker 02:
And so again, sure, the video displays what it displays, but we also have to take into context what they did, stood him up, gave him his things, send him outside.

[00:18:34] Speaker 02:
He was absolutely free to go.

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He had his possessions.

[00:18:38] Speaker 02:
He had his car keys.

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His spouse came out there with him a short time later.

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He was 100% free to go.

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And in fact, the patrons had told him

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We've called the police.

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The police are on their way.

[00:18:50] Speaker 05:
All that is great for a defense of perfect self-defense.

[00:18:56] Speaker 05:
How does any of that have any relevance to an imperfect self-defense?

[00:19:00] Speaker 05:
Let's say hypothetically that he was high on methamphetamine.

[00:19:03] Speaker 05:
Are you saying, well, you know, we told him that he could go.

[00:19:07] Speaker 05:
He was he was drugged out out of his mind and he thought, you know, he was elucidated that the guy that when he came out of the door that he was actually afraid that he was going to come back at him.

[00:19:16] Speaker 05:
After all, he had just been beaten up by this guy along with two of his accomplices.

[00:19:24] Speaker 05:
And so how does the fact that he was free to go have anything to do with whether or not

[00:19:32] Speaker 05:
He was entitled to a proof beyond a reasonable doubt instruction on a defense that the judge acknowledged that the jury could have found, imperfect self-defense.

[00:19:43] Speaker 05:
And this is not perfect self-defense, it's imperfect self-defense.

[00:19:47] Speaker 05:
He could have had traumatic brain injury.

[00:19:50] Speaker 05:
He had been diagnosed with PTSD.

[00:19:53] Speaker 05:
And it certainly could have been, at least according to the district judge, a basis for an imperfect self-defense.

[00:20:01] Speaker 05:
I don't understand how your argument really pertains to the legal issue that we have to confront.

[00:20:10] Speaker 02:
Your Honor, I think it gets to the core of what was in the defendant's mind.

[00:20:14] Speaker 02:
There's no evidence in the record that I can find where the defendant subjectively believed that he had to use lethal force to repel an imminent serious bodily injury or death upon his person or another individual.

[00:20:27] Speaker 02:
There's nothing in there for the trial judge to have hung his hat on to support that jury instruction.

[00:20:33] Speaker 05:
Do you have to have that?

[00:20:35] Speaker 02:
Yes, Your Honor.

[00:20:36] Speaker 05:
In Toledo, for example, the court said that, as you point out, that the defendant did testify that he was under the subjective apprehension of bodily harm, but the court also said, but there was other evidence involving his psychological defects.

[00:20:56] Speaker 05:
And those would have contributed to maybe a subjective apprehension of bodily injury.

[00:21:03] Speaker 05:
How do you distinguish Toledo?

[00:21:07] Speaker 02:
Your honor, I think the defendant tells us that he's no longer in a defensive state of mind.

[00:21:12] Speaker 02:
So remember, when the fight's over and they stand him up and they're walking him out of the door, he goes on the offensive.

[00:21:18] Speaker 02:
It's gone from a defensive situation to an offensive situation, and his state of mind reflects that.

[00:21:24] Speaker 02:
He uses a anti-gay slur and says that he's going to kill the bar patrons.

[00:21:29] Speaker 02:
He goes outside.

[00:21:31] Speaker 02:
He's combative with his wife.

[00:21:33] Speaker 02:
And this whole concept that he doesn't recognize his wife is substantially hard to credit.

[00:21:38] Speaker 02:
She comes out and she stumbles, and he swears to her and calls her a very bad thing.

[00:21:43] Speaker 02:
I won't quote it here.

[00:21:43] Speaker 02:
It's in the brief.

[00:21:44] Speaker 02:
But he's clearly being combative and insulting towards his wife.

[00:21:49] Speaker 02:
And then he pistol whips his wife.

[00:21:51] Speaker 02:
Clearly, again, the defendant is on the offensive.

[00:21:53] Speaker 02:
This isn't some defensive state of mind.

[00:21:56] Speaker 02:
He doesn't tell his wife, look out, they're coming to get us.

[00:21:59] Speaker 02:
He doesn't tell his wife, hey, we need to get in the car and go.

[00:22:02] Speaker 02:
He doesn't tell his wife, run.

[00:22:04] Speaker 02:
He doesn't tell his wife, call the cops.

[00:22:06] Speaker 02:
I'll stand here and make sure they don't come and get us.

[00:22:08] Speaker 02:
He's very abrasive and offensive towards his wife.

[00:22:12] Speaker 00:
She goes, can I interrupt because I want to

[00:22:15] Speaker 00:
kind of back you up and I think we're all familiar with these facts and you're arguing facts and I don't understand why we're talking about facts at the error stage, whether there was plain error.

[00:22:26] Speaker 00:
What is this?

[00:22:27] Speaker 00:
Are we talking about substantial rights now?

[00:22:29] Speaker 00:
Because you have to concede there was error here based on Mary Boy.

[00:22:34] Speaker 00:
I mean, at the point of error or plain error, we don't look at whether or not this instruction should not have been given.

[00:22:44] Speaker 00:
We are assuming the district court gave the instruction.

[00:22:47] Speaker 00:
There was a reason for it.

[00:22:49] Speaker 00:
And now our case law is clear.

[00:22:53] Speaker 00:
It was error.

[00:22:54] Speaker 00:
It was error not to, and it was plain error.

[00:22:57] Speaker 00:
It's clear that it's plain error.

[00:22:58] Speaker 00:
It was error not to explain that it was the government's burden to disprove.

[00:23:07] Speaker 00:
This this point, but my I guess where I'm going with this is I think you're talking about this might have some relevance to substantial rights, but I don't see any case where we've looked at this as a substantial rights on the third prong and you cite some case from.

[00:23:24] Speaker 00:
Second Circuit.

[00:23:25] Speaker 00:
I don't even know if that was plain error case, but if it was, that was a completely different case that they looked at.

[00:23:33] Speaker 00:
They looked at this issue and the the defendant actually committed an armed robbery and essentially they found he invited the error.

[00:23:40] Speaker 00:
But I don't see any authority that says once we find that there was plain error on this instruction.

[00:23:46] Speaker 00:
That we don't just reverse in terms of how this might have impacted the jury.

[00:23:52] Speaker 00:
We don't go back and say, well,

[00:23:54] Speaker 00:
Let's take a look at these facts again and let's judge for ourselves whether this should have ever been given in the first place.

[00:24:02] Speaker 00:
Is that something we do at prong three?

[00:24:04] Speaker 02:
Your Honor, I think Sago indicates that that's the case.

[00:24:09] Speaker 02:
That was very important in the Sago case is that it wouldn't have made a difference in that particular set of facts.

[00:24:16] Speaker 00:
Additionally, the court's recent decision... Was that a prong three in Sago?

[00:24:22] Speaker 02:
Your honor, I believe that's how they analyze that case, your honor.

[00:24:25] Speaker 02:
I believe that's correct.

[00:24:26] Speaker 02:
It was under prong three of plain error.

[00:24:28] Speaker 02:
Additionally, the court's recent case in Brown, I believe it's a March of 2025 case.

[00:24:35] Speaker 02:
In that case, as I recall, one of the themes that they analyzed, maybe even under prong four, prong three and four of plain error, was there wasn't an overwhelming amount of evidence regarding the premeditation, regarding

[00:24:51] Speaker 02:
the facts of the case.

[00:24:52] Speaker 02:
Well, here we have the opposite.

[00:24:53] Speaker 02:
I would submit to this court that we do have an overwhelming amount of evidence.

[00:24:58] Speaker 02:
The defendant committed premeditated murder and had no subjective belief that he was under some sort of immediate or imminent threat of serious bodily injury to himself or another.

[00:25:07] Speaker 01:
So that's what I'm struggling with is I think what Judge Maritz is struggling with.

[00:25:13] Speaker 01:
It sounds like you're arguing that that there was no error

[00:25:18] Speaker 01:
in the instruction.

[00:25:19] Speaker 01:
That's not where we are, is it?

[00:25:27] Speaker 01:
We are accepting that the court should have given the instruction, that the court erred in not putting the burden where it should be, and the question is what the consequence of that is.

[00:25:37] Speaker 01:
Isn't that where we are?

[00:25:39] Speaker 02:
I'll agree with half of half of that your honor I agree the instruction is wrong.

[00:25:43] Speaker 02:
I agree the instruction as given is an error.

[00:25:46] Speaker 02:
I can't agree your honor that the defendant was entitled to it in the first place and so what I'm trying to argue your honor is, even if the court hadn't given it, then we wouldn't be error so therefore if the defendant got it.

[00:25:58] Speaker 02:
The error and nerd in a way to his benefit because he got to argue for something that frankly, the United States does not believe he was entitled to argue he did not present enough evidence, although the standard is remarkably low did not present enough evidence to show that he actually possessed.

[00:26:13] Speaker 02:
the belief that he was in imminent fear of death or serious bodily injury.

[00:26:18] Speaker 02:
There's not enough evidence there to even warrant the instruction.

[00:26:21] Speaker 02:
And so that's my proposition that there's not an error because he wasn't even entitled to the instruction to the extent that he was.

[00:26:28] Speaker 02:
Then we really get into prong three.

[00:26:30] Speaker 02:
where it wouldn't have made a difference because the defendant's guilt in this case was substantially overwhelming.

[00:26:37] Speaker 02:
He said two different times, I'm going to kill you.

[00:26:40] Speaker 02:
He walked 50 feet to his car, got his gun, loaded it according to the testimony, didn't get his gun straight out and fire, and most importantly, didn't shoot at the door where the patron came out and asked him what he was doing, but shot nine times in a spread pattern across the width of the bar.

[00:26:59] Speaker 02:
There is no doubt at all that this it just would not have made any difference.

[00:27:05] Speaker 02:
There's no jury instruction in the world on self defense that would have made a single bit of difference in this case.

[00:27:10] Speaker 05:
Every problem that imperfect self defense was not included among the elements that the government didn't need to disprove.

[00:27:18] Speaker 05:
In other words, if we disagree with you and think that you and the evidence of life most favorable to the defendant, that he would have been entitled to the very instruction that the district court did give, but not in the context of one of the elements that the government had to disprove in order to convict the defendant of

[00:27:41] Speaker 05:
first-degree murder, is that a problem?

[00:27:46] Speaker 05:
If we think that the jury could have found imperfect self-defense, even if the evidence was overwhelming.

[00:27:57] Speaker 02:
If it would have made a difference, I think is the question that the court has to answer.

[00:28:01] Speaker 02:
And if it would have made a difference, then the jury was improperly instructed.

[00:28:05] Speaker 02:
And that has historically in the circuit survived plain error review, starting with, I don't think Brit was plain error, but in the cases after Brit in the plain error context, when that instruction is given poorly or doesn't identify the government's burden, then that has constituted plain error.

[00:28:20] Speaker 05:
Yeah, but you understand that is not my question.

[00:28:26] Speaker 05:
You know, there's two separate arguments that I think Mr. Van Delsen has made.

[00:28:31] Speaker 05:
Most of the attention has been focused in his briefing and today on his argument that the government wasn't put to its burden of disproving imperfect self-defense beyond a reasonable doubt.

[00:28:43] Speaker 05:
But one of the problems that he's identified is when the judge gave the elements for first degree murder, he did not include the need to disprove at all.

[00:28:53] Speaker 05:
Um, uh, imperfect self-defense.

[00:28:55] Speaker 05:
So theoretically the jury could have gotten into the liberation room and said, well, let's look through the elements of first degree murder.

[00:29:03] Speaker 05:
Uh, and I don't see anything about it in perfect self-defense.

[00:29:06] Speaker 05:
Yeah.

[00:29:07] Speaker 05:
He, uh, had a design to, to kill the person, uh, never considered whether or not he had a design because he was afraid that he was going to be killed, uh, or beaten up.

[00:29:17] Speaker 05:
And, and so is that a problem?

[00:29:20] Speaker 02:
In light of Sago and in light of the jury finding premeditation, Your Honor, I don't think that it is under a Planner or standard review.

[00:29:29] Speaker 05:
How can Sago help you?

[00:29:30] Speaker 05:
I mean, I understand Sago is a good case on the second argument that Mr. Van Delsom has made, but I don't understand the whole premise of Judge Hart's analysis in Sago is that the jury had found imperfect self-defense and somehow had factored into

[00:29:51] Speaker 05:
the consideration of the circumstances.

[00:29:55] Speaker 05:
But if the jury finds, let's say that I intend to go out and kill somebody, I think that the person is setting out to kill me.

[00:30:09] Speaker 05:
And the judge tells the jury only, well, to find Baccarat convicted of guilty of first degree murder, you have to find that he had a design to kill the person.

[00:30:19] Speaker 05:
that he intended to kill, balance of forethought, that he struck the fatal blow.

[00:30:26] Speaker 05:
Well, I'm guilty of all that.

[00:30:29] Speaker 05:
I don't know that that would implicate Judge Hart's analysis.

[00:30:32] Speaker 05:
I do think Judge Hart's analysis would apply to the second element, and that is,

[00:30:37] Speaker 05:
if the government had the burden to disprove it beyond a reasonable doubt, whether that would affect the analysis of imperfect self-defense.

[00:30:46] Speaker 05:
But the problem that he's identifying, Mr. Van Delsen, in his first argument, is the jury never had to consider imperfect self-defense at all in order to convict this guy of first-degree murder.

[00:31:00] Speaker 02:
Your honor, I don't think that it would have made a difference.

[00:31:03] Speaker 02:
And so it gave back to the government's original argument.

[00:31:05] Speaker 02:
We don't have error because the defendant was never entitled to the instruction.

[00:31:11] Speaker 02:
That's the United States' position in this case.

[00:31:13] Speaker 02:
Your honor, I'm very, very close to out of time, happy to answer any additional questions.

[00:31:19] Speaker 01:
I don't think we have any, and I think your time, Mr. Van Delsum, is out.

[00:31:26] Speaker 01:
And so, case is submitted.

[00:31:28] Speaker 01:
Thank you, counsel.

[00:31:30] Speaker 01:
We appreciate your arguments.