[00:00:00] Speaker 05: Case number 24-3033, United States of America versus Mark L. Clark, a balance. [00:00:07] Speaker 05: Mr. Macchiarelli for the balance. [00:00:09] Speaker 05: Mr. Goodhand for the appellee. [00:00:12] Speaker 01: Mr. Macchiarelli, please proceed when you're ready. [00:00:18] Speaker 04: May it please the court. [00:00:19] Speaker 04: I represent Mark Clark, who is directly behind me in the first row. [00:00:24] Speaker 04: We've raised a number of arguments on appeal. [00:00:26] Speaker 04: I would like to begin with the court's permission focusing on the two issues that the district court found were substantial legal questions to warrant bond on appeal. [00:00:36] Speaker 04: One, the instruction regarding willfulness, and two, the finding of sufficient evidence for bodily injury to satisfy count one of the indictment that applied to Mr. Tolan. [00:00:48] Speaker 04: Addressing the issue of the instruction on willfulness, [00:00:52] Speaker 04: The district court instructed the jury that it need not find that Officer Clark knew he was violating the law when he took the actions that he did. [00:01:04] Speaker 04: That is directly in opposite to Supreme Court precedent in Bryant and subsequent cases. [00:01:11] Speaker 04: The government's own proposed jury instruction pre-trial, the Civil Rights Division's position on what is required in order to establish lawfulness, [00:01:22] Speaker 04: In ultimately addressing this issue post trial, Judge Nichols relied upon a 1976 decision, I believe in United States versus Lickman based upon this court's interpretation that willfulness could be satisfied by a recklessness standard. [00:01:41] Speaker 04: Respectfully, Your Honors, I believe that Supreme Court precedent even recognized by the Department of Justice [00:01:48] Speaker 04: portions that the standards should be, that somebody needs to know that they are violating the law, is unimaginable. [00:01:57] Speaker 01: On this score, can I ask you, counsel, do you disagree that under Ehrlichman, your argument can't be correct? [00:02:05] Speaker 04: If this, I would agree if this court upheld our Lickman as current law, that would be correct. [00:02:12] Speaker 04: I would argue that the court in our Lickman did not have the benefit of the Supreme Court precedent in subsequent years interpreting what willfulness means. [00:02:21] Speaker 04: The various different other circuit decisions interpreting willfulness, for example, [00:02:26] Speaker 04: One could not imagine that a criminal defense, the government would be held to a higher standard to prove lawfulness in a anti-kickback statute, as was recently decided that applying Bryant, that the lawfulness, that a defendant has to know what he's doing was unlawful at the time, but apply a lower standard to law enforcement officers who are engaging in civil rights offenses. [00:02:53] Speaker 02: One could not- So that we're clear [00:02:54] Speaker 02: You did not object to the sentence at issue here. [00:03:02] Speaker 04: Respectfully, Your Honor, I think it's a very difficult factual history to kind of review. [00:03:07] Speaker 02: So did you object or not? [00:03:10] Speaker 02: The district court said in denying your motion for a new trial that there was no objection. [00:03:16] Speaker 02: I didn't see in your brief where you cited a transcript [00:03:24] Speaker 02: where you objected? [00:03:26] Speaker 04: So, Your Honor, the defense proposed its own jury instruction. [00:03:30] Speaker 04: That jury instruction was rejected by the court. [00:03:33] Speaker 04: The court also rejected the government's instruction. [00:03:35] Speaker 04: The court fashioned its own instruction. [00:03:38] Speaker 04: The government then objected to that instruction again. [00:03:40] Speaker 04: And that is exactly where this additional language comes in. [00:03:44] Speaker 04: To answer your question, Your Honor, I don't want to dance around it. [00:03:47] Speaker 04: Ultimately, when the judge says are any more objections, I did not object. [00:03:52] Speaker 04: But one, I did not waive my previous objections to the instruction that I proposed pre-trial and throughout the case. [00:03:59] Speaker 02: But where did you object to the instruction ever? [00:04:04] Speaker 02: Well, you said you proposed your own instruction, and that's fine. [00:04:11] Speaker 02: But if the judge declines to give your proposed instruction, then your obligation is to say, Your Honor, I object to the instruction that you're going to give because it's different than my instruction and it's different in a way that's wrong [00:04:32] Speaker 02: and it prejudices my client and you can explain and make a record and give the district court an opportunity to correct the error if there is one. [00:04:42] Speaker 02: That's why we require parties to object. [00:04:46] Speaker 02: and I don't see where that happened. [00:04:49] Speaker 02: Am I missing something? [00:04:51] Speaker 04: Your honor, I would say that there was numerous discussions on the record of what the instruction should be. [00:04:59] Speaker 04: And the district court noted that the defense raised its own objection, that it was not going to be following its proposed instruction, was going to fashion an instruction. [00:05:13] Speaker ?: Sure. [00:05:16] Speaker 05: That case indicates that that word has many meanings. [00:05:20] Speaker 05: It kind of depends on the context. [00:05:22] Speaker 05: And so how does that help you if it's going to depend on the context when we have the later cases of screws and [00:05:29] Speaker 04: Yes, because if you look at the purpose of which this statue was created from its initial statute and screws and other literature, it was to propose a heightened standard of proof of, I wouldn't say evil intent, but much more than very bad purpose. [00:05:49] Speaker 04: And that's why the Civil Rights Division identifies Brian as authority for proving, must prove, that an individual know that he is violating the law when he engages in such action in order to be willful. [00:06:05] Speaker 04: Various courts have [00:06:07] Speaker 04: and scholars have questioned whether the standard should be lower because it is too high. [00:06:12] Speaker 04: There is no, and I'm aware of that, the standard that this is not a case that should not have the normal definition of lawfulness as applied in criminal statutes by Supreme courts and other circuits. [00:06:25] Speaker 04: I would just note the issue of [00:06:36] Speaker 04: I would instruction and start with the language that is directly contradicted by existing precedent. [00:06:43] Speaker 04: It taints that instruction and creates confusion. [00:06:47] Speaker 04: And you could see in jury notes about what was actually the seizure, what was the bodily injury. [00:06:59] Speaker 04: And we're talking about contact to the neck at times during the actions of Officer Clark during the arrest that did not result in any injury, that did not result in any kind of inability to breathe or anything of those circumstances as to. [00:07:27] Speaker 04: Well, as to Tolan, there was no representation that he had even believed he had been choked or any injury as to him. [00:07:34] Speaker 04: His only injury was to his calf. [00:07:36] Speaker 04: As to Coleman, there was a reference to an abrasion, but Mr. Coleman made no reference to being injured in his submission of a medical report where he talked about being schizophrenic and wanted to harm himself and to harm others. [00:07:51] Speaker 04: Judge Wilkins, going back to your point, I would cite that this, I consider this to be plain error. [00:07:58] Speaker 04: Even if the court finds that in raising our own proposed instruction, the district court rejecting that instruction, the district court fashioning its own instruction, the government coming back and saying, well, I don't think that that's correct. [00:08:11] Speaker 04: I don't think somebody needs to know that they violated a constitutional provision. [00:08:16] Speaker 04: giving the government credit, I believe the government meant to say a specific constitutional provision, like the Fourth Amendment or the Fifth Amendment, which the law says you don't need to know the specific law you're violating or the specific amendment, but you need to know you're violating the law. [00:08:31] Speaker 04: The district court ran with that and added in a line that nobody asked for. [00:08:36] Speaker 04: And specifically, the government proposed the exact opposite pretrial, which was, [00:08:41] Speaker 01: You know that you need to know that you are violating the law and even even the instruction that even the things even the instruction that you proposed pretrial didn't contain the language that would have required knowledge right. [00:08:58] Speaker 04: No, that specifically was following the Red Book instruction on specific intent as being the heightened intent element. [00:09:07] Speaker 04: But no, there was nothing in there that said one way or the other. [00:09:10] Speaker 04: But surely nothing was proposed, like the district court ultimately found that you did not need to know that one. [00:09:17] Speaker 01: And in terms of plain error, the district court's instruction was consistent with the Ninth Circuit's decision. [00:09:22] Speaker 01: Right. [00:09:22] Speaker 01: I mean, the Ninth Circuit has a holding directly on this issue under the statute that says that knowledge is not required. [00:09:29] Speaker 04: Um, I, I, your honor, I, I am not, I believe the district court cited that, um, but ultimately relied upon the circuit's decision or Lickman to kind of bypass the kind of, you know, interpretation of, um, cases post. [00:09:45] Speaker 01: I guess I'm just saying that if, if the standard is plain error, actually, so not just that you have to show that, that, that there was error, but that the error was plain. [00:09:54] Speaker 01: The argument that the error was plain would have to overcome the fact that there's circuit decisions outside this. [00:09:59] Speaker 01: Let's just discount Ehrlichman. [00:10:01] Speaker 01: I'll just assume that for present purposes, give you the benefit of that assumption for now. [00:10:06] Speaker 01: But you'd have to overcome the fact that there's decisions from other circuits that would say that not only was it not plainly erroneous, but it wasn't even erroneous because they sanctioned the kind of instruction that the district court gave here. [00:10:18] Speaker 04: And I would think, Your Honor, that is overwhelmed. [00:10:20] Speaker 04: The evidence being the other circuit patent jury instructions, the Civil Rights Division position, the subsequent Supreme Court decisions, the interpretations of the various other statutes where the government simply says, well, that's not 242. [00:10:33] Speaker 04: All of that would establish plain error. [00:10:35] Speaker 04: I seem to be out of time, but I just want to briefly address the issue of bodily injury as to- Before you go there, [00:10:43] Speaker 02: I mean, I think what I understand you to be saying as far as the specific error is, and I have my own concerns about this and I'll have my questions for the government when they stand up about this, is that if you're going to say it's not necessary for you to find that the defendant knew that he was acting unlawfully, [00:11:11] Speaker 02: that that language from Ehrlichman was in the context of somebody, you know, trying to present some sort of mistake of law or advice of counsel or similar defense. [00:11:26] Speaker 02: And Ehrlichman rejected that and said, well, [00:11:32] Speaker 02: Even so, you can, screws says that you can violate the statute if you have a reckless disregard for the constitution or for the law. [00:11:48] Speaker 02: And so is it your contention that if you're going to include this language about it's not necessary for you to find that the defendant knew he was acting unlawfully, you have to couple that [00:12:02] Speaker 02: with what Ehrlichman said that this language was in the context of, which is a requirement that you at least have to find that there was a reckless disregard. [00:12:14] Speaker 02: And this instruction did not include the reckless disregard language. [00:12:20] Speaker 02: And so for that reason, it's wrong. [00:12:22] Speaker 02: Is that your argument? [00:12:23] Speaker 04: My your honor that is what I would consider my secondary argument if I had additional time to get to it would be you just can't drop this in without making any reference to recklessness before a jury, especially when there's been no discussion or analysis of why a conduct was reckless, no expert testimony, anything like that. [00:12:43] Speaker 04: I would ultimately go to the position that's recent Supreme Court precedent, the Civil Rights Division's own position, attempts to amend the statute to bring it to a reckless standard, all evidence that the current standard should be on willfulness as defined by the Supreme Court. [00:12:58] Speaker 04: But your point is extremely well taken. [00:13:00] Speaker 04: It would be my backdrop that you have to provide the context and at least some discussion of recklessness. [00:13:06] Speaker 04: Your Honor, as I apologize, I've raised a number of issues. [00:13:13] Speaker 04: Sure. [00:13:18] Speaker 05: Yes. [00:13:18] Speaker 05: So I wanted to know, are you still coupling that with a separate argument on your instructions? [00:13:27] Speaker 04: You're absolutely right, Your Honor. [00:13:28] Speaker 04: So I think it's correctly a variance. [00:13:30] Speaker 04: I know I've argued both constructive amendment and variance. [00:13:33] Speaker 04: They're talking about the excessive force, which is the objective standard of an officer at the time of using force. [00:13:40] Speaker 04: That being, as you said, applying a chokehold as you framed it. [00:13:43] Speaker 04: not conduct that occurred minutes earlier, not conduct that occurred later. [00:13:48] Speaker 04: And the government's entire proof during trial was, was there a violation of use of force policy by escalating or not deescalating in a McDonald's way before the use of force? [00:13:59] Speaker 04: Was there a violation of the use of force policy after the physical conduct? [00:14:04] Speaker 04: And continuing to talk to Mr. Tolan when Mr. Tolan was using expletives at the officers. [00:14:09] Speaker 04: That expanded what the liability was and the jury asked very specific questions during deliberations which took over five days. [00:14:18] Speaker 04: One, what is the seizure here? [00:14:19] Speaker 04: And Supreme Court precedent under Torres says the seizure is when you apply force with the intent to restrain, I would be arguing applying the physical contact at that time, not the conduct before, not the conduct after. [00:14:32] Speaker 04: And they also asked, well, is the injury focused on the body parts that are described in the jury instructions to the neck area, all part of what you described as a choke hold. [00:14:42] Speaker 04: And again, the district court allowed the liability to be expanded and the government drew it [00:14:49] Speaker 02: But you did not object when the district court asked if there was an objection to how he was going to answer the jury note. [00:15:00] Speaker 02: My recollection is that there was no objection and you said something like, you know, basically under the law, that's what you have to say or something like that. [00:15:12] Speaker 02: Right. [00:15:13] Speaker 04: There was definitely a very strenuous objection to the issue of the scope of what the seizure was and that is at length. [00:15:24] Speaker 02: Well, I'm talking about the injury. [00:15:27] Speaker 02: Where the jury asked is the body part that that? [00:15:33] Speaker 02: Has to be injured as it gotta be the same body parts described in the counts in the indictment. [00:15:39] Speaker 02: And the judge essentially answered that no. [00:15:43] Speaker 02: and I did not see an objection to that answer. [00:15:48] Speaker 02: Was there, did I miss that? [00:15:50] Speaker 04: My recollection is, your honor, that I believe that should have been applied to the charged conduct. [00:15:58] Speaker 04: And I apologize if I don't have a reference handy, but I don't believe that was the case. [00:16:02] Speaker 04: If the court's recollection differs, I trust the court on that issue. [00:16:08] Speaker 04: I believe I've reserved two minutes for additional questions. [00:16:11] Speaker 00: Make sure my colleagues don't have questions. [00:16:13] Speaker 00: We'll give you some time for rebuttal. [00:16:14] Speaker 00: Thank you. [00:16:15] Speaker 00: We'll hear from the government now. [00:16:22] Speaker 03: Thank you, Your Honors. [00:16:22] Speaker 03: May it please the court to give a good hand for the United States if I can take the issues as they've been presented by my opponent. [00:16:28] Speaker 03: First, turning to plain air, I won't dwell on this long, but my opponent has suggested there's a difficult factual history here. [00:16:36] Speaker 03: There's no difficult factual history here. [00:16:38] Speaker 03: The factual history is the judge came up with an instruction. [00:16:42] Speaker 03: The judge gave the instruction to the parties. [00:16:44] Speaker 03: The judge asked if they had any objections in the court. [00:16:48] Speaker 03: the court, and neither the United States nor the defendant objected. [00:16:53] Speaker 03: And in fact, after the court read the instructions pursuant to the federal rules, the court said, any problems, any objections? [00:17:01] Speaker 03: And again, defense counsel said no. [00:17:04] Speaker 03: And as we've described in our brief, frankly, I think if you look at the post-trial hearing in this context, my opponent has actually already conceded that he did not put this particular claim in front of the judge. [00:17:19] Speaker 03: And in that context, I also want to move on to my opponent's other concession, which is that he agrees that if Ehrlichman is somehow not undermined, then he has lost on this issue. [00:17:36] Speaker 03: There is nothing that I've seen him point to that would suggest Ehrlichman has been undermined. [00:17:41] Speaker 03: I know that [00:17:42] Speaker 03: he has suggested that Brian has somehow effected a sea change in the law. [00:17:49] Speaker 03: I would suggest the exact opposite. [00:17:51] Speaker 03: Brian simply recognized that willfulness is subject to a contextual analysis. [00:18:00] Speaker 03: We need to understand what the statute is designed for, what it's getting at. [00:18:05] Speaker 02: I mean, screws did that analysis. [00:18:08] Speaker 02: They did. [00:18:09] Speaker 02: And as did Ehrlichman, and Ehrlichman mentioned the sentence, which let's just review the bidding here. [00:18:19] Speaker 02: The instruction proposed by the government did not include the sentence at issue here. [00:18:27] Speaker 02: You agree with that, right? [00:18:28] Speaker 02: Oh, absolutely. [00:18:29] Speaker 02: And the O'Malley treatise [00:18:34] Speaker 02: that on federal pattern jury instructions, it does not include that sentence. [00:18:42] Speaker 03: That's correct. [00:18:43] Speaker 02: Right. [00:18:44] Speaker 02: The district court basically went out of its way or did its own research and decided to include a sentence that neither party asked for. [00:18:59] Speaker 02: So we're clear that that's the history, right? [00:19:03] Speaker 03: Yes. [00:19:04] Speaker 02: Okay. [00:19:05] Speaker 02: So my question to you is, is the Constitution law... Is... I'm sorry, Your Honor? [00:19:12] Speaker 02: The Constitution law. [00:19:15] Speaker 03: It certainly is. [00:19:18] Speaker 02: Constitutional rights are... So if you violate the Constitution, you're violating law. [00:19:24] Speaker 03: Yes. [00:19:25] Speaker 02: So why are you giving an instruction here that says it's not necessary for you to find that he knew he was acting unlawfully? [00:19:36] Speaker 02: Because that would mean that it's not necessary to prove that he knew that he was violating the Constitution. [00:19:44] Speaker 02: How is that consistent with the rest of the paragraph? [00:19:48] Speaker 03: I think it's entirely consistent, and most particularly, I think it's entirely consistent with screws. [00:19:54] Speaker 02: I understand screws to stand for the proposition that— Screws said that you have to have a purpose to violate the Constitution. [00:20:03] Speaker 02: It did. [00:20:04] Speaker 02: It says those very words, right? [00:20:06] Speaker 02: How can you have a purpose to violate something if you don't know that you're violating? [00:20:11] Speaker 03: Well, Your Honor, I think I would direct the court's attention to the Ninth Circuit decision in Reese, which the District Court relied on. [00:20:19] Speaker 03: I care about the Ninth Circuit. [00:20:20] Speaker 03: I care about the Supreme Court. [00:20:22] Speaker 03: I understand, Your Honor. [00:20:23] Speaker 03: And in Reese, they discussed what they called the apparent paradox in screws. [00:20:31] Speaker 03: That is, the language you've cited relating to purpose to violate a constitutional right. [00:20:38] Speaker 03: On the one hand, and on the other hand, Reese notes, [00:20:41] Speaker 03: um, screws flatly declares when you're, when you are committing your acts, your wrongful acts, you don't have to be thinking in constitutional terms. [00:20:52] Speaker 03: And so what Reese does, Reese says, look at those two things. [00:20:58] Speaker 03: How are they not incompatible? [00:20:59] Speaker 03: And Reese says the paradox is solved by screws is referenced to reckless disregard. [00:21:07] Speaker 02: That is, [00:21:09] Speaker 02: But why is it reckless disregard in this instruction then? [00:21:14] Speaker 03: Well, I think, you know, the district court, and this is Ed Page, excuse me, [00:21:24] Speaker 03: The district court, as it explains in his post trial ruling, is sort of trying to make understandable for the jury, which is its duty, a very difficult area of the law. [00:21:38] Speaker 03: So to import reckless disregard wasn't necessary, I would suggest, when you have this language. [00:21:48] Speaker 03: You must find that the defendant intended to use more force than reasonable under the circumstances. [00:21:55] Speaker 03: And again, Reese, I think, is very instructive on this. [00:21:58] Speaker 03: Reese says, quote, intentionally wrongful conduct that contravenes a right that has been definitely established in the law evidences a reckless disregard for that right, which is the legal equivalent of willfulness. [00:22:15] Speaker 03: And that's at 2F3RD881. [00:22:18] Speaker 03: So you didn't have to dump in reckless disregard into this instruction. [00:22:23] Speaker 02: My concern is that instructions should elucidate rather than confuse the jury and elucidate the law. [00:22:34] Speaker 02: So you have an instruction that says in the first sentence, [00:22:38] Speaker 02: He acts willfully if he acts with specific intent, and that's the intent to interfere with their right not to be subjected to unreasonable force. [00:22:49] Speaker 02: So he has to intend to essentially violate their rights. [00:22:53] Speaker 02: And then that follows with a sentence that says, it's not necessary for you to find that he was acting unlawfully. [00:23:02] Speaker 02: But you've agreed that one acts unlawfully if one violates the Constitution, because the Constitution's law. [00:23:10] Speaker 02: Sure. [00:23:11] Speaker 02: So one acts unlawfully if they are violating someone's constitutional rights. [00:23:17] Speaker 02: So how does the first sentence make sense in light of the second? [00:23:21] Speaker 02: The first sentence says you have to have a specific intent [00:23:25] Speaker 02: to violate a right not to be subjected to unreasonable force, and then you follow it with, it's not necessary that he knew that he was acting unlawfully. [00:23:34] Speaker 02: How does any of that make sense unless you say, as long as he is acting recklessly, which isn't in the instruction? [00:23:45] Speaker 03: Again, I think it makes sense. [00:23:46] Speaker 03: I would have a much more difficult argument, your honor, if screws hadn't expressly [00:23:53] Speaker 03: approved of a reckless disregard mens rea in this in this context i would i wouldn't be able to stand here and make the argument that i'm making if screws the supreme court hadn't already said this well somehow the jury was supposed to know that that sentence meant reckless disregard even though it didn't say reckless disregard [00:24:13] Speaker 03: I don't think, I don't understand jury instructions to require the jury to understand specific terms of art relating to mens rea. [00:24:22] Speaker 03: I think the jury instructions have to ensure that in the context of mens rea, most fundamentally, that wrongful conduct is separated from innocent conduct and that we are not, you know, again, this is all against the backdrop of ignorance of the law, mistake of law to fundamental canon is not an excuse. [00:24:43] Speaker 03: And so the Supreme Court has said- Except that the statute says willful. [00:24:49] Speaker 02: I'm sorry? [00:24:50] Speaker 02: Except that we have a statute that says willful violations. [00:24:54] Speaker 02: And we have a- Right. [00:24:56] Speaker 02: So whatever the general rule about ignorance of the law is no excuse, we still have a statute that we have to be faithful to. [00:25:05] Speaker 02: And that was construed in screws to require that you have a purpose [00:25:11] Speaker 02: to violate the constitution? [00:25:14] Speaker 03: Well, again, I think maybe that's some inartful language in screws, but the paradox that Reese discusses is resolved when you look at the larger context of the screws decision, number one. [00:25:28] Speaker 03: And number two, I want to make sure we understand that willfulness doesn't necessarily mean knowledge that you're breaking the law. [00:25:35] Speaker 03: Brian alone says that. [00:25:37] Speaker 03: And if you look at, [00:25:38] Speaker 03: page 191, note 12 of Brian at 524 US, Brian recognizes that under the wide spectrum of willfulness, it includes quote, conduct marked by conscious disregard. [00:25:53] Speaker 03: So again, in the context of looking at willfulness and looking what it means, we have to look at the context. [00:26:01] Speaker 03: Screws did that for us in this case and said in the context of 242, it can mean [00:26:07] Speaker 03: I mean, excuse me, reckless disregard. [00:26:11] Speaker 02: I'm not going to beat the dead horse. [00:26:13] Speaker 02: I agree with you that that's what Brian says. [00:26:16] Speaker 02: My point is that [00:26:19] Speaker 02: Why doesn't the instruction say conscious disregard is good enough? [00:26:24] Speaker 02: Recklessness is good enough. [00:26:26] Speaker 02: If you're going to put this sentence in that says it's not necessary for you to find that the defendant knew he was acting unlawfully, why shouldn't the rest of the sentence be so long as you find that he was acting with conscious disregard or reckless disregard? [00:26:46] Speaker 03: Your honor, that's certainly a possibility, but if we're in the context of talking about possibilities relating to this instruction, then we're out of the context of plain error. [00:26:54] Speaker 03: So if nothing else, if reasonable minds can disagree about the clarity of this instruction, and if reasonable minds can disagree about whether or not the judge should have had an add-on clause, then I think we're in the context. [00:27:08] Speaker 02: I think that's a fair point. [00:27:09] Speaker 02: So maybe it's not plain error, [00:27:13] Speaker 02: But would you agree with me then that it was error to not have included that language? [00:27:20] Speaker 02: Given that that's what screws and Bryant and Ehrlichman really seem to be getting at. [00:27:27] Speaker 03: Absolutely not. [00:27:28] Speaker 03: Absolutely not. [00:27:29] Speaker 03: I think this instruction is entirely in keeping with [00:27:34] Speaker 03: in the context of excessive force in an unlawful seizure and scenario, I would direct the court to the Reese decision. [00:27:40] Speaker 03: I know it's not from this circuit, but I also direct the court to the Pirano decision from the Seventh Circuit. [00:27:46] Speaker 03: And if you look at those cases, you will see those two decisions have blessed language that is virtually identical to the type of language that district court. [00:27:55] Speaker 01: Can I just ask you, so what does willfulness add in this context? [00:28:00] Speaker 01: So Brian, [00:28:03] Speaker 01: Brian adopts a general rule, a general assumption, at least, that in the criminal context, when the word willful is in a statute, it says, in other words, in order to establish a willful violation of a statute, the government must prove that the defendant acted with knowledge that his conduct was unlawful. [00:28:16] Speaker 01: That's the general rule for a criminal statute. [00:28:19] Speaker 01: You have to be taking the position that that general rule doesn't apply under 242, because if that general rule did apply, then this instruction would have been wrong. [00:28:27] Speaker 01: So this is an exception to the general rule. [00:28:29] Speaker 01: Yes. [00:28:30] Speaker 01: And then I guess my question is, what does willful add in this context? [00:28:37] Speaker 01: Because we already know, as a general matter, the defendant has to intend to do the acts that are unlawful, but doesn't have to know what the law is. [00:28:47] Speaker 01: So it doesn't have to necessarily know that the acts that do violate the law actually violate the law. [00:28:54] Speaker 03: Willful adds a great deal here. [00:28:58] Speaker 03: It is not insignificant that the court instructed the jury, you must find the defendant intended to use more force than was reasonable under the circumstances. [00:29:09] Speaker 03: Not just that he intended to use force. [00:29:11] Speaker 03: You have to find he used more force than was reasonable under the circumstances. [00:29:16] Speaker 03: That is the precise constitutional [00:29:19] Speaker 03: guarantee that is at stake here. [00:29:21] Speaker 03: And in that sentence, I would suggest you were asking the jury to ensure that that was his purpose. [00:29:29] Speaker 03: That adds a lot. [00:29:31] Speaker 03: And if I could back up just one quick point here. [00:29:34] Speaker 03: Again, we operate against the backdrop of the fundamental canon, ignorance of the law is not an excuse. [00:29:42] Speaker 03: The Supreme Court has said, consistent with that canon, and I'm quoting now, courts must read into statutes only the mens rea necessary to separate wrongful conduct from otherwise innocent conduct. [00:29:58] Speaker 03: And that's Carter versus the United States, 530 US at 269. [00:30:02] Speaker 03: And that's what happens in screws. [00:30:05] Speaker 03: Screws looks at the greater [00:30:08] Speaker 03: purpose is what they call it in section 242, which is to protect an individual similarities. [00:30:14] Speaker 03: And screws looks at that greater purpose, the exact context for willfulness here. [00:30:20] Speaker 03: And screw says, you know what, what we are going to do to make sure that we don't ensnare innocent conduct and to make sure that we punish on the other hand, wrongful conduct. [00:30:30] Speaker 03: We are going to ensure that either you act with a specific purpose to violate a constitutional right or at a minimum [00:30:38] Speaker 03: you exercise reckless disregard. [00:30:41] Speaker 03: And again, I think Reese is very powerful on this point. [00:30:45] Speaker 03: Reckless disregard means intentionally wrongful contact that contravenes a right definitely established in the law and evidences a reckless disregard. [00:30:55] Speaker 03: That is a very significant standard to meet. [00:30:59] Speaker 03: And that's a [00:31:01] Speaker 03: a variation on the sentence that I would suggest carries the water here, which is the defendant intended to use more force than was reasonable under the circumstances. [00:31:11] Speaker 03: And again, if nothing else, I'm certainly not at all acknowledging slash conceding slash giving up on the core point here that this instruction was entirely correct. [00:31:24] Speaker 03: The district court obviously spent [00:31:26] Speaker 03: many, many, many hours working on this instruction. [00:31:29] Speaker 03: And if you look at the post-trial ruling, you will see how thoughtful he applied himself to this. [00:31:35] Speaker 03: And now I understand thoughtfulness doesn't necessarily always equate to non-erroneous, but I think you will see that he took some difficult, disparate strands of law that came from a somewhat difficult screws decision and came to a very understandable jury instruction. [00:31:51] Speaker 02: I understand the different input process [00:32:00] Speaker 02: pattern theory instruction is precisely because if you introduce that sentence, it confuses things. [00:32:15] Speaker 02: It essentially raises the paradox that a resource had to try to reconcile [00:32:24] Speaker 03: Again, we obviously are coming at this from different angles, but again, I think this was in fact an instruction that was true to every sentence of screws. [00:32:37] Speaker 03: And in particular, the reckless disregard language in screws. [00:32:41] Speaker 03: That's what this instruction is. [00:32:43] Speaker 03: It's true to the Supreme Court precedent that governs this precise context. [00:32:49] Speaker 02: How is it appropriate to instruct the jury that they could find Mr. Officer Clark guilty based on an injury other than an injury to the body parts mentioned in the indictment? [00:33:10] Speaker 03: Well, a couple of things. [00:33:17] Speaker 03: As I understand the jury's question, they were just asking when the indictment and the court's instructions referred only to the trachea, the windpipe, and the front of his neck, or the jugular vein. [00:33:30] Speaker 03: And this is transcript 267, 268. [00:33:33] Speaker 03: Those are the court's instructions. [00:33:39] Speaker 03: The jury was asking when we're considering injury, are we confined to those body parts? [00:33:46] Speaker 03: And as even the defendant agreed when they were discussing this, and this is his concession is at appendix 1033, the injury did not need to be limited to just those body parts. [00:33:58] Speaker 03: And that's entirely consistent with the statute. [00:34:02] Speaker 03: What did have to happen, and the court ensured this happened, is the jury had to find that the injury that the jury signed off on was a product of the excessive force. [00:34:13] Speaker 03: And so the court instructed it, A1044, [00:34:17] Speaker 03: The injury must result from the willful use of unreasonable force. [00:34:21] Speaker 03: So we have a precise cause and effect. [00:34:23] Speaker 03: The jury couldn't go off on a frolic and a detour and make a decision about, oh, OK, well, this injury may or may not happened with the scooter, which preceded the use of excessive force. [00:34:34] Speaker 03: And so we're finding that that injury suffice here. [00:34:37] Speaker 03: No, the court was very clear. [00:34:39] Speaker 03: The injury must result from the willful use of unreasonable force. [00:34:42] Speaker 03: So again, I think this is precisely what you want district courts to do. [00:34:46] Speaker 03: They considered a question, they clarified the confusion, and did so in complete adherence to the law. [00:34:56] Speaker 01: I'm sure my colleagues don't have additional questions. [00:34:59] Speaker 05: On the issue with respect to the jury question, you shared the challenge about whether or not to deal with a question on legal seizures, I assume, on legal seizures. [00:35:10] Speaker 03: Yes. [00:35:14] Speaker 03: I again I consider the court's approach to that precisely what you want course do that the jury asked for quote the legal definition of seizure. [00:35:23] Speaker 03: The judge gave the legal definition of seizure, but. [00:35:31] Speaker 03: Sure. [00:35:33] Speaker 03: And the court, in its supplementary instruction, the court referred the jury back to the general definition of unreasonableness. [00:35:43] Speaker 03: So the jury asked for something, the court gave it, and the instruction is entirely consistent with section 242 liability, which must depend on the finding of unreasonable physical force. [00:35:59] Speaker 03: and that's at a 1050. [00:36:01] Speaker 03: So I think the judge did what you want courts to do, answer the question correctly. [00:36:08] Speaker 03: Thank you, counsel. [00:36:10] Speaker 03: We would ask that you affirm the judgment and conviction below. [00:36:14] Speaker 03: Thank you. [00:36:17] Speaker 01: Dr. Arlo, we'll give you the two minutes you asked for for rebuttal. [00:36:20] Speaker 04: Thank you, Chief Judge. [00:36:21] Speaker 04: Judge Wilkins, going back to your specific question of the government, not only was the district court's addition of that additional language not requested by either party, it is exactly opposite [00:36:35] Speaker 04: to what the government requested pre-trial, and that's at record 33 of the appendix, when they pre-trial told the court that in order to establish its burden and proof, it must show that the defendant was acting voluntary intentionally and with this specific intent to do something that the law forbids. [00:36:58] Speaker 04: And your honors have been practicing lawyers and on the bench much longer than I have, but I have not seen where the government imposes burdens beyond what it's legally required to do so, especially pretrial when it has all the ability to reflect on what the appropriate law is and what the appropriate standard is in this case. [00:37:16] Speaker 04: to go to the point that the government made in its argument that all is well, members of the court, because the district court instructed that the force not be one iota or more than what was necessary. [00:37:31] Speaker 04: Well, that's the standard of the use of force policy for the Metropolitan Police Department, of which the entire government's case was, was this a violation of policy? [00:37:39] Speaker 04: Was this a violation of policy? [00:37:40] Speaker 04: The problem with that is, as the district court instructed, as the defense requested, that does not establish a constitutional violation, a violation of MPD policy. [00:37:51] Speaker 04: So the jury is left with trying to figure out, well, is more force is a violation of policy, but does that rise to a constitutional violation? [00:38:00] Speaker 04: Is that what establishes willfulness? [00:38:02] Speaker 04: We've argued for about 20 minutes on what the appropriate instruction and the confusion that could result. [00:38:08] Speaker 04: Imagine a jury being told, you don't need to find that Officer Clark knew what he was doing was unlawful or wrong. [00:38:17] Speaker 04: That is very clear terms. [00:38:19] Speaker 04: That's very not complicated words and allows them to find liability based upon arguably, you know, one iota of forced war and violation of an MPD policy, which does not establish a constitutional violation. [00:38:34] Speaker 04: Getting to the issue of bodily injury. [00:38:38] Speaker 04: The government expanded its excessive force analysis to pre-attempted seizure, post-attempted seizure, when the whole crux of the case was, was the force that Officer Clark used when he specifically grabbed Mr. Tolan and ultimately seized him, was that excessive? [00:38:57] Speaker 04: When the jury said, can we consider body parts [00:39:01] Speaker 04: removed from the neck, the head, things of that nature, the district court gives the green light. [00:39:06] Speaker 04: But what does that allow for? [00:39:08] Speaker 04: Well, what is the testimony we heard is Mr. Toland saying he hurt his back of his calf when the officer ran his bike into him. [00:39:17] Speaker 04: That's the evidence in the record. [00:39:19] Speaker 04: They chose not to call Mr. Toland. [00:39:21] Speaker 04: That's Mr. Toland's words. [00:39:23] Speaker 04: The government at trial says, reject that. [00:39:26] Speaker 04: Reject the only evidence we have from the complainant that it occurred when the bike went into his foot and just reject that and interpret it. [00:39:34] Speaker 04: Speculate that the injury to the foot must have occurred. [00:39:39] Speaker 04: No fact witness nothing to support that when he was pushed up to the car. [00:39:43] Speaker 04: And that's what the government relies upon to sustain evidence sufficient to support a bodily injury connected to the alleged excessive force. [00:39:53] Speaker 04: The problem is the indictment charges excessive force relating to the neck, contact, and alleged choke hold as Judge Chiles noted. [00:40:01] Speaker 04: OK. [00:40:02] Speaker 01: Thank you, counsel. [00:40:03] Speaker 01: Thank you. [00:40:04] Speaker 01: Thank you to both counsel. [00:40:06] Speaker 01: Mr. Macherelli, you were appointed by the court to represent the appellant in this matter, and the court thanks you for your assistance. [00:40:12] Speaker 04: Thank you, Chief Judge. [00:40:13] Speaker 01: We'll take this case under submission.