[00:00:09] Speaker 04:
You can wait a minute.

[00:00:10] Speaker 04:
That's all.

[00:00:11] Speaker 04:
There's a lot of screen going around behind you.

[00:00:14] Speaker 04:
Thank you, Your Honor.

[00:00:49] Speaker 04:
Okay, I think we're ready.

[00:00:51] Speaker 01:
Good morning.

[00:00:52] Speaker 01:
Good morning, your honors.

[00:00:53] Speaker 01:
Amy Cleary on behalf of Michael Burciaga.

[00:00:56] Speaker 01:
I'll reserve four minutes for my rebuttal and we'll watch my... How many for rebuttal?

[00:01:00] Speaker 01:
Four.

[00:01:01] Speaker 04:
Okay, thanks.

[00:01:04] Speaker 01:
In this jury trial appeal, I'd like to focus on two issues unless the court directs me otherwise.

[00:01:10] Speaker 01:
I'd like to first address the jury instruction error regarding the element of malice.

[00:01:16] Speaker 01:
and I'd also like to address the government's failure to prove premeditation beyond a reasonable doubt.

[00:01:23] Speaker 01:
Time permitting, I'll also address the effects of this on count two.

[00:01:27] Speaker 01:
With regard to the instructional error, there are two principles that should guide this court's decision.

[00:01:33] Speaker 01:
The first is that the constitutional due process clause

[00:01:38] Speaker 01:
required that the government prove all the elements of the offenses beyond a reasonable doubt.

[00:01:44] Speaker 01:
The second principle is that when there's evidence of heat of passion or sudden quarrel, Supreme Court case law, this court's case law, and case law from the other circuits all require that the jurors be instructed that

[00:02:02] Speaker 01:
the government bears the burden of proving the absence of heat of passion or sudden quarrel beyond a reasonable doubt.

[00:02:10] Speaker 01:
Unfortunately, that did not happen in this case.

[00:02:13] Speaker 01:
The district court did not instruct jurors that the government bore the burden of proving heat of passion or sudden quarrel.

[00:02:21] Speaker 04:
So initially, the government wasn't going to give the instruction.

[00:02:25] Speaker 04:
Is that correct?

[00:02:26] Speaker 01:
Initially, the district court was going to give the instruction, Your Honor.

[00:02:31] Speaker 01:
The reason that... No, no, no.

[00:02:33] Speaker 04:
On the heat of passion.

[00:02:35] Speaker 04:
Initially, there wasn't going to be a heat of passion, and then there was a heat of passion, right?

[00:02:39] Speaker 04:
No?

[00:02:40] Speaker 04:
No, Your Honor.

[00:02:42] Speaker 01:
What am I... From the outset, that was Mr. Berciaga's defense.

[00:02:46] Speaker 01:
So that was always something that was before the court.

[00:02:49] Speaker 01:
Well, he was always claiming that.

[00:02:50] Speaker 04:
But we have to decide... You're entitled to the instructions if there's evidence to support it.

[00:02:57] Speaker 04:
So the issue seems to turn on to me whether there was sufficient evidence of provocation to entitle Mr. Berciaga to the defense instruction.

[00:03:07] Speaker 04:
And in, can you tell me what evidence in the record there was that supported that?

[00:03:13] Speaker 04:
Because I didn't see there were words exchanged, but I didn't see any physical altercation before he grabbed the knife and started stabbing her.

[00:03:26] Speaker 01:
There were words Certainly your honor and I'll direct your honor to 1 er 38 and that is where the district court Addressed the evidence that she believed in her discretion supported that and that included More broadly This couple was in the midst of determining whether they were going to provide any care for this fetus prior to delivery So this was a larger discussion

[00:03:54] Speaker 01:
But when Miss Davis told Mr. Barciaga, I don't want your baby, she is conveying to him very provocating language that I'm not going to take any medical steps to try and save what is a very dismal diagnosis.

[00:04:15] Speaker 04:
But what, I guess, can you give me, you know, so those are the facts.

[00:04:20] Speaker 04:
Those are words.

[00:04:21] Speaker 04:
It's not like she,

[00:04:22] Speaker 04:
you know, was holding a chair or she was holding a bat at that point or anything like that.

[00:04:27] Speaker 04:
I don't want your baby.

[00:04:28] Speaker 04:
And then he goes and stabs her a whole bunch of times.

[00:04:31] Speaker 04:
I think that so, you know, if that, if that me asking you a hard question,

[00:04:38] Speaker 01:
is provocation to start stabbing me you know that's that you know so that i'm wondering well your honor brings up a good point we're not talking about name-calling we're not even talking about racial slurs we're not talking about just mere words that could offend somebody we're talking about telling the father of your child i don't want your baby which in the context of this specific case was telling him

[00:05:08] Speaker 01:
I'm doing palliative care, if anything.

[00:05:10] Speaker 01:
I'm not going to take steps to have a cardiac thoracic surgeon available to try and save this baby.

[00:05:20] Speaker 01:
I don't want this baby.

[00:05:22] Speaker 03:
And for someone... So then the response is, well, let me kill you.

[00:05:25] Speaker 03:
You're the carrier of this baby.

[00:05:27] Speaker 03:
I just find that a little bit difficult to find that as provocation of intent and to justify killing the carrier of the baby that

[00:05:38] Speaker 03:
Mr. Berziaga was caring so much about.

[00:05:41] Speaker 01:
Which is the very heart of the heat of passion.

[00:05:44] Speaker 03:
Let me ask you something.

[00:05:47] Speaker 03:
Premeditation requires planning, deliberation, forming the intent to kill, considering the intent to kill, being fully conscious of the intent to kill.

[00:05:57] Speaker 03:
How is that consistent with heat of passion?

[00:05:59] Speaker 03:
How can you have both in the same person at the same moment?

[00:06:04] Speaker 01:
Premeditation has

[00:06:09] Speaker 01:
The case law is clear.

[00:06:11] Speaker 01:
Malice is negated by heat of passion.

[00:06:14] Speaker 01:
Premeditation, you don't get to that consideration until you first have proof that this was intended with malice.

[00:06:24] Speaker 01:
When heat of passion negates malice... Then you never get to whether it's not a murder.

[00:06:31] Speaker 04:
Correct.

[00:06:31] Speaker 04:
It's not a murder because first or second degree murder requires malice of forethought.

[00:06:37] Speaker 04:
first degree murder requires premeditation.

[00:06:41] Speaker 04:
But I think what Judge Koh is saying here, this jury did find that he premeditated.

[00:06:49] Speaker 04:
And I think a lot of the instructions, I mean, I heard them and gave them a million times, but they all take on a different meaning in every case.

[00:06:59] Speaker 04:
That he left the room to go get the knife, right?

[00:07:05] Speaker 04:
And then he came back and stabbed her a number of times and then didn't he leave again because something happened to that knife and get another knife and then things went downhill continually, right?

[00:07:23] Speaker 01:
There was conflicting testimony as to that, Your Honor.

[00:07:26] Speaker 04:
But obviously, if you are looking for sufficiency of the evidence on the premeditation, you have to look at the facts that would be most favorable

[00:07:35] Speaker 04:
to that particular verdict.

[00:07:38] Speaker 04:
And how many stab wounds did she have?

[00:07:42] Speaker 01:
She had 18 stab wounds, Your Honor, and I believe 20 individual or superficial incised wounds.

[00:07:49] Speaker 01:
Okay.

[00:07:50] Speaker 03:
I guess, you know, let me clarify my point.

[00:07:52] Speaker 03:
I'm looking at Frady, okay?

[00:07:54] Speaker 03:
Frady says, look, if a jury found premeditation, deliberate planning, they're not going to find heat of passion.

[00:08:01] Speaker 03:
They're not going to find the provocation.

[00:08:03] Speaker 03:
And if I look at the jury instruction you wanted, okay, for count one,

[00:08:09] Speaker 03:
third element is the killing was premeditated, right?

[00:08:12] Speaker 03:
But then you wanted this whole paragraph at the end, which the district court didn't adopt, that said, you know, premedication, heat of passion, and what I'm saying is in Frady,

[00:08:26] Speaker 03:
the Supreme Court found that, hey, if a jury found premeditation, they're not going to find heat of passion, so there's no prejudice here.

[00:08:35] Speaker 03:
And if I look at the Ninth Circuit case, people of territory of Guam versus Quechocho, that comes to the same conclusion.

[00:08:41] Speaker 03:
If a jury is going to find premeditation and deliberation, they're not going to find passion and provocation.

[00:08:47] Speaker 03:
So where is the...

[00:08:49] Speaker 03:
Assuming there's error here, where is the prejudice?

[00:08:53] Speaker 03:
Because if the jury found premeditation, they were not going to find provocation and heat of passion.

[00:08:57] Speaker 03:
That was my point.

[00:08:59] Speaker 01:
I understand now, Your Honor.

[00:09:00] Speaker 01:
Let me address Frady.

[00:09:02] Speaker 01:
Frady makes clear in several parts of the decision and also in footnote 19 that this case, the Frady case, would have been different had the defendant challenged malice or had then or bear any evidence of self-defense or heat of passion.

[00:09:20] Speaker 01:
That is why each case is on its own merits.

[00:09:26] Speaker 03:
Well, I'm going to just read from Frady.

[00:09:27] Speaker 03:
Plainly, a rational jury that believed Frady had formed, quote, a plan to kill, a positive design to kill, end quote, with, quote, reflection and consideration amounting to deliberation, end quote, could not also have believed that he acted in, quote, sudden passion aroused by adequate provocation, causing him to lose his self-control, end quote.

[00:09:50] Speaker 03:
So where is the prejudice here if the jury found premeditation?

[00:09:55] Speaker 01:
because the premeditation instruction did not advise jurors that the government had to prove the absence of heat of passion.

[00:10:06] Speaker 01:
If this court were to undo Mulaney versus Wilbur, United States versus Lasina, and even Frady and say that the two were inconsistent, then the court would also need to take the additional step to say, well,

[00:10:22] Speaker 01:
maybe the government doesn't have to prove the absence of heat of passion for malice, but it does have to, jurors do have to be told that they, government has to prove the absence of

[00:10:34] Speaker 01:
heat of passion for premeditation.

[00:10:36] Speaker 01:
It's not the law, but at some point due process requires that the jurors be told what the government's burden is on each of the elements.

[00:10:46] Speaker 01:
So Judge Koh, whether it is in accord with circuit authority that it must be tied to malice,

[00:10:53] Speaker 01:
or if it's viewed as theoretically something that could be inconsistent with premeditation, jurors still need to be told because we have no idea how jurors would have responded if the government was held to its burden to prove that this particular circumstance with these particular people was something that was a heat of passion that negated the count one murder count.

[00:11:19] Speaker 04:
I've always found this to be a tricky area.

[00:11:24] Speaker 04:
Is there a difference between the legal standard used to determine whether a defendant is entitled to a lesser included defense instruction and whether a defendant is entitled to a defense instruction like the one at issue here?

[00:11:44] Speaker 04:
It seems to me both standards require some evidence from the defendant

[00:11:49] Speaker 04:
but is the standard the same?

[00:11:54] Speaker 04:
Do you know what I'm saying?

[00:11:55] Speaker 04:
I do know what you're saying.

[00:11:58] Speaker 01:
It's interesting.

[00:11:59] Speaker 01:
I think that the some evidence standard I think is an across the board generalization as to what's necessary.

[00:12:09] Speaker 01:
So I'm not immediately seeing that there is a different standard per se.

[00:12:15] Speaker 01:
Because even with lesser included, the courts would have been obligated if they found sufficient evidence of lesser included, even if the defendant didn't want it.

[00:12:24] Speaker 01:
So I think it's a very low bar to get the lesser included and get the defense instruction.

[00:12:31] Speaker 01:
But the difference is the defense instruction here, as the Supreme Court said in Mulaney versus Wilbur, is part of the element of malice.

[00:12:43] Speaker 01:
So to not give that instruction here, regardless of whether there were less or included, is reversible error on this record.

[00:12:56] Speaker 01:
I'd also like to address the government's failure to prove premeditation.

[00:13:04] Speaker 01:
We have a defendant who was highly intoxicated

[00:13:09] Speaker 01:
who came to his girlfriend's home after having consumed methamphetamine in the last few days.

[00:13:17] Speaker 01:
They get into a disagreement.

[00:13:19] Speaker 01:
They are struggling with a fetus who is diagnosed with trisomy 18 and is very likely going to die before delivery.

[00:13:29] Speaker 01:
And they're disagreeing on how to handle this very difficult situation.

[00:13:34] Speaker 01:
He did not walk into his home that night.

[00:13:37] Speaker 01:
with any intention to do any harm to anyone.

[00:13:42] Speaker 01:
What he wanted to do, in his words, and he gave a very lengthy confession as to what happened, is he wanted to come home, he wanted to hold Miss Davis, he wanted to go to sleep.

[00:13:54] Speaker 01:
When that didn't happen, the two engaged in additional conversation.

[00:13:58] Speaker 01:
She calls him some nasty names, and she tells him she doesn't want his baby.

[00:14:05] Speaker 01:
When he then became enraged, there is not sufficient evidence that he planned to do anything to harm her or the fetus.

[00:14:18] Speaker 04:
Well, I just got to play the devil's advocate here, because any time you do a sufficiency of the evidence, and I think you were sitting out there when people say there's no evidence or there's not, okay.

[00:14:29] Speaker 04:
But what we have to look at is every piece of evidence that supports a verdict.

[00:14:34] Speaker 04:
and where an inference can come from that.

[00:14:37] Speaker 04:
And the type of things that

[00:14:41] Speaker 04:
don't go in your favor now arguably were you the trial lawyer?

[00:14:46] Speaker 04:
no your honor but obviously you make all those arguments at trial and someone could have said okay I don't think you could have formed malice I don't think you could have premeditated any number of things and could have come back with a verdict of voluntary manslaughter but that didn't happen here all those arguments were made but then you don't have to

[00:15:09] Speaker 04:
You don't have to stab someone this many times.

[00:15:13] Speaker 04:
You don't have to leave the room and come back and go think.

[00:15:17] Speaker 04:
There's a lot of things there that a jury could look at differently than the way that you're saying that.

[00:15:24] Speaker 04:
They could have bought your argument, but on the other hand, they could have bought the prosecution argument.

[00:15:29] Speaker 04:
Yeah, maybe he didn't say, I want to kill her and the baby today.

[00:15:33] Speaker 04:
he wanted another result, but when he wasn't getting, when the argument wasn't going where he wanted, then he leaves the room, goes and gets a knife, stabs her a whole bunch of times, leaves the room again, gets, because that, did the first knife break or something happen like that, and then he comes back again, continues on the whole thing, and then one of the kids, and it's in front of what the children, as what the other children in the house.

[00:16:01] Speaker 04:
So,

[00:16:02] Speaker 04:
They could look at it differently.

[00:16:04] Speaker 04:
So there is some evidence that, because premeditation, it says it's no period of time.

[00:16:11] Speaker 04:
It could be ever so slight.

[00:16:14] Speaker 04:
And he had to go get the weapon.

[00:16:17] Speaker 04:
He had to leave the room.

[00:16:18] Speaker 04:
He left the room, came back, continued.

[00:16:21] Speaker 04:
I have trouble with the sufficiency of the evidence on that.

[00:16:26] Speaker 01:
Let me try and address your concerns.

[00:16:27] Speaker 01:
Yeah, I just want to be honest.

[00:16:29] Speaker 01:
Absolutely.

[00:16:30] Speaker 01:
And I appreciate that.

[00:16:33] Speaker 01:
When looking at premeditation, what we have here is a scene, basically.

[00:16:39] Speaker 01:
We have a bedroom and a kitchen, and they're connected by a wall.

[00:16:45] Speaker 01:
And we put in our excerpts of record, ER 2368, which shows how small this home is.

[00:16:55] Speaker 01:
When he ran, and he ran,

[00:16:59] Speaker 01:
from the bedroom to the kitchen, whether it's once or twice.

[00:17:06] Speaker 01:
The government did not present sufficient evidence to show that maybe that was enough time perhaps, but that he actually stopped and considered.

[00:17:17] Speaker 01:
And I'll compare this case to United States versus Begay, which had a fairly similar situation, but the court was looking at how was the defendant acting when he went from the victim's car in Begay to his truck to get the rifle,

[00:17:32] Speaker 01:
and he came back and shot the victims.

[00:17:36] Speaker 01:
What was very important to this court in Begay was how the defendant walked to the truck and back to the victim's car and that there was a lack of evidence that the defendant was agitated or upset.

[00:17:50] Speaker 01:
What we have here is

[00:17:52] Speaker 01:
Mr. Bersiaga saying he ran into the kitchen, one of the child witnesses saying he ran into the kitchen, both child witnesses saying that they did hear an argument between the parties.

[00:18:03] Speaker 01:
This was a relatively quick, rageful event by Mr. Bersiaga that spanned until the time that he ran out of the house and he finally understood what he had done.

[00:18:18] Speaker 02:
Wasn't there also some additional time for him to consider because she barricaded the door and he had to break through the barricade and kick the door in to come in and kill her finished killing her with the second night.

[00:18:32] Speaker 01:
I would submit your honor at that point the the.

[00:18:36] Speaker 01:
argument in the coral and the fight between the two is still ongoing.

[00:18:42] Speaker 01:
It's not as if she locked him out of the house and he had time to like walk around and you know be outside and get some cool air and calm down.

[00:18:51] Speaker 01:
This is all happening rather quickly in the couple.

[00:18:54] Speaker 02:
But our case law says that premeditation can be formed very very quickly.

[00:18:59] Speaker 02:
So even if we accepted that

[00:19:03] Speaker 02:
The argument they had was sufficient to be heat of passion and that he initially attacked her without premeditation.

[00:19:11] Speaker 02:
The events continued.

[00:19:15] Speaker 02:
I don't think our case law says you have to have time to go outside and smoke a cigarette and get some cool air and calm down.

[00:19:19] Speaker 02:
I mean, he had time to go to the kitchen, get a second weapon, come in, break down the door, and then kill her.

[00:19:24] Speaker 01:
And I think that's what comes down to what was his state when he went from the kitchen, and it was a

[00:19:33] Speaker 01:
He ran both directions.

[00:19:35] Speaker 01:
He was very upset.

[00:19:38] Speaker 01:
While the government doesn't have to show he went outside and smoked a cigarette, they do have to show that he actually stopped and considered.

[00:19:45] Speaker 01:
And because of the nature of the way that... But how did they show that, right?

[00:19:49] Speaker 02:
We can't read his mind.

[00:19:50] Speaker 02:
The jurors can't read the defendant's mind.

[00:19:53] Speaker 02:
So they're looking at, as you said, in Begay, the way he walked here.

[00:19:57] Speaker 02:
Can they not look at his leaving the room and returning?

[00:20:03] Speaker 01:
They did in Begay, and if you did that here, when someone is running back and forth, that is not indicative of someone who's stopping to take time to consider the consequences of their actions.

[00:20:17] Speaker 01:
And in Begay, they also looked at how did the defendant act afterwards.

[00:20:22] Speaker 01:
In Begay, the defendant told the witnesses, don't want to talk about it, be quiet about it.

[00:20:30] Speaker 01:
Here we have Mr. Bersiaga coming, walking back on his own to the police, hands up in the air.

[00:20:37] Speaker 01:
I did it.

[00:20:38] Speaker 01:
I'm here.

[00:20:38] Speaker 01:
He proceeds to the hospital, gives a full confession.

[00:20:41] Speaker 01:
He explains, I didn't think about this.

[00:20:43] Speaker 01:
I didn't plan this.

[00:20:44] Speaker 01:
I didn't want this.

[00:20:45] Speaker 01:
I love her.

[00:20:46] Speaker 01:
And yes, I understand the ironic nature of the offense.

[00:20:53] Speaker 01:
But that is part of the reason why this is so difficult.

[00:20:58] Speaker 01:
If we were to find that premeditation in a heat of passion argument in a situation like this where there is no reasonable inference that someone actually stopped and thought about what he or she was doing, then there is largely no difference

[00:21:19] Speaker 01:
in the evidence that needs to be presented between second and first degree murder and we know that there is.

[00:21:24] Speaker 01:
We know that this premeditation needs to be carried beyond a reasonable doubt and the government did not do that.

[00:21:30] Speaker 03:
Can I ask you a question on the provocation?

[00:21:33] Speaker 03:
So that's an objective standard but you're asking us to take into account a lot of subjective circumstances about Mr. Berciaga.

[00:21:40] Speaker 03:
He had used meth that day, he was intoxicated.

[00:21:43] Speaker 03:
So, sort of help us think about what's the legal analysis here.

[00:21:50] Speaker 03:
Do we take into a lot of Mr. Berciaga's subjective situation in determining whether, you know, there was provocation here?

[00:22:02] Speaker 01:
When looking at what he knew, I think you take what an objective person would have done under the circumstances with what he knew.

[00:22:11] Speaker 04:
With regard to the intoxication, I think that the case law suggests that... Well, wouldn't it be whether a reasonable person would be provoked under these circumstances?

[00:22:21] Speaker 04:
Yes, not whether he was.

[00:22:24] Speaker 04:
He clearly was provoked.

[00:22:26] Speaker 01:
Correct.

[00:22:26] Speaker 01:
And if I misspoke, I apologize.

[00:22:29] Speaker 04:
But it has to be.

[00:22:30] Speaker 04:
But you got people sitting up there on the jury box, 12 of them, thinking to themselves, well, yeah, I wouldn't be happy that my

[00:22:41] Speaker 04:
that the mother of my child cut me out of going to the doctor's appointment, that we don't really agree on whether we give palliative care or whether we, you know, we're confronted with a horrible situation about a baby that's probably going to, could die before delivery with good, but then also even if it's delivered,

[00:23:03] Speaker 04:
There's nothing that they can really do to save it.

[00:23:05] Speaker 04:
It's going to die.

[00:23:06] Speaker 04:
It's going to die.

[00:23:07] Speaker 04:
It's going to die.

[00:23:08] Speaker 04:
So the question is how you get there.

[00:23:09] Speaker 04:
So it's a horrible situation.

[00:23:11] Speaker 04:
But you've got all those people sitting up there, and they're thinking, well, what would I have done in that situation?

[00:23:17] Speaker 04:
And obviously, they're thinking in themselves, well, stabbing someone a whole lot of times in front of three children, that barricade, then I come back in and try it again, and one of the kids is trying to stop you with a bat, and you still keep going.

[00:23:32] Speaker 04:
They obviously didn't buy it.

[00:23:36] Speaker 04:
They're thinking from their standpoint, that's awful, but I wouldn't have done that.

[00:23:41] Speaker 01:
And I appreciate that, Your Honor.

[00:23:42] Speaker 01:
And that's why I began this discussion this morning with, if you're going to get there, you need to properly instruct the jury.

[00:23:52] Speaker 01:
And because they didn't on malice, this requires reversal.

[00:23:57] Speaker 01:
And the reason it will also impact count two is because the

[00:24:02] Speaker 01:
punishment for count two is mirrored by the punishment that the jury believed he undertook so if the jury believed he undertook murder as it was explained to them that's why he got the life sentence for the count two but because count one needs to come back with the correct

[00:24:19] Speaker 04:
Lee instructed jury counts you should also be vacated and I'll reserve the rest of my time for rebuttal unless the court has additional oh yeah let me ask you I can ask the government you can come back on this there there was a discrepancy and what the oral and the written

[00:24:38] Speaker 04:
And I think the government's point is it was just a clarification, so it doesn't have to go back.

[00:24:43] Speaker 04:
And your point is that the court has to clarify that.

[00:24:47] Speaker 04:
And it has to go back on remand, regardless of the other issues.

[00:24:50] Speaker 01:
It would have to go back on remand, Your Honor, because what the court said was not ambiguous at sentencing.

[00:24:56] Speaker 01:
And the only way you get to clarify something is if it was ambiguous.

[00:25:00] Speaker 01:
Because her oral pronunciation doesn't match what the written was as far as which counts

[00:25:05] Speaker 01:
Count two would run consecutive two for the, or concurrent two for the remaining.

[00:25:10] Speaker 01:
That needs to be corrected.

[00:25:11] Speaker 04:
Okay.

[00:25:13] Speaker 04:
I'll give you three minutes for a rebuttal.

[00:25:14] Speaker 01:
Thank you, your honor.

[00:25:22] Speaker 04:
Good morning.

[00:25:23] Speaker 00:
Good morning.

[00:25:24] Speaker 00:
May it please the court?

[00:25:26] Speaker 00:
Peter Walkinshaw on behalf of the United States.

[00:25:29] Speaker 00:
Unless there are any immediate questions from the court, I think I'd start by just summarizing quickly the facts and evidence that support the jury's conclusion that this is a premeditated crime.

[00:25:40] Speaker 00:
On the night of the murder, the defendant announced that he would kill his victim and stabbed her in the arm hard enough that his knife broke.

[00:25:47] Speaker 00:
He then went to the kitchen to retrieve another.

[00:25:49] Speaker 00:
while the victim and her children barricaded themselves in the victim's bedroom.

[00:25:54] Speaker 00:
The victim's eldest daughter spent a minute and a half on the phone with 911 before Berciaga was able to enter the room.

[00:26:02] Speaker 00:
Now, it's not clear how long they were in the room prior to that, though we do know that the children seriatim gathered each other into the defendant's bedroom before the door was barricaded.

[00:26:13] Speaker 00:
After a minute and a half on the phone, and I

[00:26:16] Speaker 00:
Recognize that the 9-1-1 call is a hard listen But from that 9-1-1 call we know that for five subsequent minutes Berciaga attacked the victim here and From the testimony there's there's some dispute with the defense as to whether or not Mr.. Berciaga went back once to the kitchen or twice and while obviously this court will draw inferences in favor of the jury's verdict and

[00:26:44] Speaker 00:
I think if you look at the citations that the defense provides, they actually support the conclusion and the testimony given by the victim's eldest daughter that Berciaga repeatedly went back to the kitchen to retrieve knives to commit this crime.

[00:27:04] Speaker 03:
And I'll return to that briefly, but just... He also broke the lower half of a dresser that the Miss Davis and her kids were using to barricade the door.

[00:27:13] Speaker 00:
He did.

[00:27:14] Speaker 00:
He kicked through the door.

[00:27:15] Speaker 03:
He kicked through the door.

[00:27:16] Speaker 00:
He kicked through the door.

[00:27:18] Speaker 00:
So after returning, after stabbing the victim in the head and torso, losing his knife, and then again returning to the kitchen after the children had tried to fight him off, he returned for the third time.

[00:27:34] Speaker 00:
and completed the murder, at which point he fled the residence.

[00:27:37] Speaker 00:
When he returned to the scene of the crime shortly later, he told police that he knew what he had done and that he was going to get 20 years for it.

[00:27:44] Speaker 00:
And then when asked the following day, having had time to sleep off whatever substances he had ingested, he told the interviewing FBI agent that he didn't snap.

[00:27:57] Speaker 00:
This is just more than sufficient evidence to support the jury's finding of premeditation.

[00:28:01] Speaker 00:
I'm happy to answer any questions.

[00:28:03] Speaker 04:
Well, the instructional situation's a little more convoluted to me from the standpoint that obviously they were confronted as a couple with a horrible situation with a baby that just faced a doomsday verdict and

[00:28:27] Speaker 04:
It doesn't sound like really any of the alternatives were really very positive or very had a, but the victim had cut Mr. Bersiaga out of going to the last doctor's appointment.

[00:28:43] Speaker 04:
So he was already mad about that, right?

[00:28:46] Speaker 04:
Because he had a different view about how they should

[00:28:51] Speaker 04:
what they should do in the interim, whether palliative care or how they should let this work out.

[00:28:59] Speaker 04:
So what is your position about, there was no, she was not, it seems undisputed, she was not physically threatening to him or whatever.

[00:29:10] Speaker 04:
She said some words that

[00:29:12] Speaker 04:
They had an argument and it was a really difficult situation for any couple to have to deal with.

[00:29:20] Speaker 04:
Should the court have given that instruction or is that just as a matter of law not enough to merit a heat of passion?

[00:29:29] Speaker 00:
Your Honor, the government objected to the giving of the heat of passion instruction.

[00:29:34] Speaker 00:
The government's objection is set forth in the record at page 2083 on the basis that there's no evidence that could support that from which a jury... But the district court found that there was.

[00:29:46] Speaker 00:
That's correct, Your Honor.

[00:29:47] Speaker 03:
So why isn't it an error that the judge didn't include the statement, it's not first or second degree murder, if Mr. Berciaga acted upon a sudden quarrel or heat of passion,

[00:29:56] Speaker 03:
or otherwise acted without malice of forethought.

[00:29:58] Speaker 03:
She should have given that instruction.

[00:30:00] Speaker 00:
Well, Your Honor, Mulaney versus Wilbur, which is where this line of cases come from, say that this instruction needs to be given in cases where the issue is fairly presented.

[00:30:09] Speaker 03:
Right, but here we have a district court that said that the defense did fairly present it.

[00:30:14] Speaker 00:
Right.

[00:30:15] Speaker 03:
So I know you disagree, but we have the court finding it was necessary, but not doing it.

[00:30:23] Speaker 00:
Right.

[00:30:24] Speaker 00:
Your Honor, I believe

[00:30:26] Speaker 00:
The district court didn't identify the evidence from which a jury could rationally find that Berciaga had been adequately provoked in this instance.

[00:30:37] Speaker 00:
And we would put forth that it simply just doesn't exist in this case.

[00:30:41] Speaker 04:
So if we have to get into, if there was error, it seems strange to me.

[00:30:47] Speaker 04:
The Mulaney case seems very strange to me because it does seem strange.

[00:30:53] Speaker 04:
It's hard for me to see how a jury would find someone premeditated.

[00:31:00] Speaker 04:
But yet on the other hand, I mean they look at all the facts and they just look at everything and that obviously you don't find someone in my view guilty of malice, a forethought and then premeditated murder if you really thought that they were acting in a heat of passion.

[00:31:18] Speaker 04:
But there does seem to be

[00:31:20] Speaker 04:
some case law that says within that you're supposed to prove beyond a reasonable doubt that the person didn't have malice for thought.

[00:31:28] Speaker 04:
So how does the harmless error analysis work there?

[00:31:33] Speaker 00:
Right.

[00:31:33] Speaker 00:
So I think there are two separate questions going on here.

[00:31:35] Speaker 00:
So Malini versus Weber says that this instruction needs to be given when the issue is fairly presented.

[00:31:41] Speaker 00:
And we certainly don't dispute that.

[00:31:42] Speaker 00:
But even then,

[00:31:44] Speaker 04:
We could find if we wanted and I don't know what we're going to do because we don't conference before we come here We could say the jury that the judge didn't have to give it so end it there And we but if we don't and say once you did give it you have to give the other part of it Assuming the heat of passion instruction was appropriately given in this case your honor.

[00:32:05] Speaker 00:
It's still set the form of the instruction and

[00:32:07] Speaker 00:
And in this case, it would be the lack of the instruction to the jury that the government bears the burden of disproving heat of passion beyond a reasonable doubt.

[00:32:14] Speaker 00:
That's still subject to harmless error review.

[00:32:18] Speaker 00:
And in this case, in order to determine whether that error is harmless, the question the court really only needs to ask is, what is premeditation

[00:32:27] Speaker 00:
and what is heat of passion.

[00:32:28] Speaker 00:
Now, often in the case law, heat of passion isn't given any further definition beyond its sort of common everyday meaning, but when it does, it makes it very clear that a heat of passion is an absence of an ability to think clearly.

[00:32:44] Speaker 04:
Now, in... Well, heat of passion negates malice, right?

[00:32:49] Speaker 04:
Isn't that what it negates?

[00:32:51] Speaker 00:
Well, it's, yes.

[00:32:52] Speaker 04:
And then, because

[00:32:54] Speaker 04:
and therefore if you don't have malice you never get to premeditation.

[00:32:59] Speaker 00:
It's a partial defense or partial justification.

[00:33:01] Speaker 00:
I think that the phrase negates malice is sometimes used but I believe in the literature it's more commonly understood as basically a justification for why something like that happens.

[00:33:12] Speaker 00:
A defendant can't properly be held responsible for his actions when he's in such an emotional state that he can't properly reason.

[00:33:20] Speaker 00:
But again when

[00:33:22] Speaker 00:
When defined beyond just the plain language of the term, and I believe it's United States v. Boudreaux on our papers, it's also in United States v. Martinez, it's an emotional state that causes a defendant to lose self-control and act on impulse without reflection.

[00:33:38] Speaker 00:
And I think really the key aspect of that definition is the phrase without reflection.

[00:33:44] Speaker 00:
That's really what the heat of passion is.

[00:33:47] Speaker 00:
If a defendant has reflected

[00:33:50] Speaker 00:
if they've, and this is the words of the jury instructions, if they are fully conscious of their intent and have considered the killing, they simply cannot be in the heat of passion.

[00:34:03] Speaker 00:
And by proving beyond a reasonable doubt that Berciaga premeditated this crime, the government, the jury found, without having to be instructed by the court, that the government disproved that he was in a state of mind in which he couldn't think or reflect.

[00:34:20] Speaker 04:
Well, it is implicit to that, so I don't understand why that instruction's... I think that case is a stupid case, but it is a case that we have to follow.

[00:34:29] Speaker 00:
Well, to be clear, Your Honor, Mulaney v. Wilder does not deal with premeditated murder.

[00:34:36] Speaker 00:
So it's not a case in which the Supreme Court considered whether or not the error was harmless.

[00:34:42] Speaker 00:
It really was a main statute which, by operation of law,

[00:34:48] Speaker 00:
placed the burden on the defendant to prove that he was in the heat of passion to provide a defense to murder generally.

[00:34:57] Speaker 00:
What the Supreme Court said was that violates due process.

[00:34:59] Speaker 00:
You can't do it that way.

[00:35:00] Speaker 00:
But what it did not say is this defendant was convicted of first degree murder.

[00:35:05] Speaker 00:
We find that that error was not harmless and therefore reversible.

[00:35:09] Speaker 00:
That's nowhere in Mulaney versus Wilbur.

[00:35:13] Speaker 00:
And so I would say, while we don't disagree with, we obviously don't disagree with Mulaney v. Wilmer's Supreme Court case, but it doesn't speak to the issue here, Your Honor.

[00:35:24] Speaker 04:
It doesn't speak to what... So you're reading Mulaney to say, if we get to the point where the instruction was given, Mulaney would require this to be given, but what you're saying is it does not,

[00:35:39] Speaker 04:
And that error is not a what an error that can't be reviewed for harmless error.

[00:35:46] Speaker 04:
And in this case, they could have only gotten to premeditated first degree murder without rejecting all of that.

[00:35:56] Speaker 00:
Precisely, both the parties agree that this is a this is if an error, which again we dispute, but assuming that the district court should have given this instruction.

[00:36:05] Speaker 00:
that the government bore this burden.

[00:36:07] Speaker 00:
Parties agree that it's subject to harmless error review, harmless when a reasonable doubt, and the analysis that the court conducts, and these are from the cases cited in our papers, is it looks to what the jury actually found.

[00:36:19] Speaker 00:
And if the jury found the thing that it was not instructed it needed to find, then there's no error.

[00:36:26] Speaker 00:
There's no prejudice to the defendant that would subject their conviction to reversal.

[00:36:33] Speaker 04:
So on the oral pronouncement and the written judgment appear to say different things.

[00:36:41] Speaker 00:
That's correct.

[00:36:42] Speaker 04:
And you explain to me how they are the same or alternatively how the written judgment clarifies the oral pronouncement.

[00:36:49] Speaker 00:
Certainly understood.

[00:36:50] Speaker 04:
And then if we find, if we don't agree with you and find the written judgment oral pronouncement to be inconsistent, what's the proper remedy?

[00:36:57] Speaker 00:
So, Your Honor, if the

[00:37:02] Speaker 00:
The oral pronouncements ambiguous and the reason that it's ambiguous is because it says that count two is both concurrent to and consecutive to count three.

[00:37:12] Speaker 00:
That's the problem, is that when announcing count three, the court said this will be consecutive to all our counts.

[00:37:19] Speaker 00:
But then when announcing count two, the court said that 10 years will run consecutive and the remainder will run concurrent to all other counts.

[00:37:28] Speaker 00:
And I think part of this arises from the fact that two of these sentences are life sentences.

[00:37:32] Speaker 00:
And so, you know, just conceptually, as a practical matter,

[00:37:38] Speaker 00:
doesn't actually make a difference in terms of the time that the defendant will actually serve.

[00:37:42] Speaker 00:
But there is an ambiguity in terms of the court's intent regarding the extent.

[00:37:47] Speaker 04:
Well, but always down the line, one life sentence could be overturned.

[00:37:51] Speaker 00:
Oh, certainly.

[00:37:52] Speaker 04:
And then if they were that, you know, so it can have implications.

[00:38:00] Speaker 00:
Right.

[00:38:00] Speaker 00:
I beg your pardon.

[00:38:01] Speaker 00:
I don't mean to suggest that it couldn't.

[00:38:03] Speaker 00:
I'm just sort of trying to explain what I've

[00:38:06] Speaker 00:
believe is fairly read to be the origin of the error.

[00:38:08] Speaker 00:
But again, it's ambiguous because what the court did is it said that count two is both consecutive and concurrent to count three.

[00:38:16] Speaker 00:
I think this is honestly just most fairly read as a slip of the tongue by the court.

[00:38:21] Speaker 00:
And then it clarified that ambiguity in the written judgment, which under this court's precedence is entirely appropriate for it to do.

[00:38:30] Speaker 04:
So we would say... If we want to be sure, shouldn't we just send it back to the judge and say, what did you mean here?

[00:38:36] Speaker 00:
Well, Your Honor, I think that the court made clear what, I mean, that's in some respects an important purpose of codifying the judgment in a writing, is that the court can clarify what it meant, and it did here.

[00:38:50] Speaker 04:
And so, because the- But a lot of times what you do is you say it, and then a clerk prepares something, and then you sign it later.

[00:38:58] Speaker 00:
That's true, Your Honor.

[00:39:01] Speaker 00:
I think the signing-

[00:39:04] Speaker 00:
I think the signing is important, Your Honor, though I think we should assume that the district court in this case reviewed the papers before signing them.

[00:39:10] Speaker 04:
And again... Yeah, but sometimes you think you could be... We see what we want to see.

[00:39:17] Speaker 04:
We see what we think we did.

[00:39:18] Speaker 00:
So... I don't dispute that, Your Honor, but I think under this court's precedence, it's very clear that if the oral pronouncement is ambiguous,

[00:39:30] Speaker 00:
that it's entirely appropriate for the written judgment to clarify it.

[00:39:33] Speaker 00:
And that's what happens.

[00:39:34] Speaker 00:
There's no suggestion that there's any ambiguity in the written judgment.

[00:39:39] Speaker 00:
It's crystal clear.

[00:39:41] Speaker 00:
And because there's no ambiguity in the written judgment and there is ambiguity in the oral pronouncement that the written judgment resolves, there's really no need for a remand here.

[00:39:48] Speaker 00:
The district court's made its intent clear.

[00:39:50] Speaker 04:
So you're sure that the district court didn't mean what the district court said in the oral pronouncement and that the written one, you've

[00:40:00] Speaker 04:
You've got the mind reader here going on.

[00:40:02] Speaker 00:
The district court could not possibly have meant what it said in the oral pronouncement because it says two things about count two that are mutually exclusive, that it's both consecutive to count three and concurrent.

[00:40:15] Speaker 00:
So the oral pronouncement, for lack of a better word, doesn't entirely make sense, but the written judgment does.

[00:40:23] Speaker 00:
And it's basically, it follows from

[00:40:27] Speaker 00:
If one assumes that the oral pronouncement arose from a slip of the tongue by the district court, then the oral pronouncement would make very clear what the district court actually meant.

[00:40:38] Speaker 00:
And it is a fair reading of what one can infer the district court intended when it made its oral pronouncement.

[00:40:45] Speaker 04:
If I'd rather really know what the district court's meant, we could remand it, couldn't we, in the district court?

[00:40:53] Speaker 04:
I mean, the district court's not going to make something up here.

[00:40:57] Speaker 00:
Certainly, honor.

[00:40:58] Speaker 00:
I think if that's the sole issue on which this court intends to remand to the district court, I think the government would not protest too strongly, although we think it's unnecessary.

[00:41:08] Speaker 03:
Why isn't it a constructive amendment to count two to include involuntary manslaughter as a predicate offense when it has a different mens rea from murder and voluntary manslaughter?

[00:41:19] Speaker 00:
So the Supreme Court and this court's precedents are quite clear that a

[00:41:25] Speaker 00:
indictment, which again conceptually is a set of allegations, is improperly amended when those allegations are expanded.

[00:41:37] Speaker 00:
Now while in some respects the defense makes the point that the defendant's liability was in some sense expanded by allowing manslaughter to be a predicate of count offense, predicate of count two, if you consider the indictment again as a set of allegations,

[00:41:55] Speaker 00:
What that's done by including manslaughter as a predicate is removing one allegation from the elements of premeditated murder.

[00:42:06] Speaker 00:
So the elements set forth in count two are defendant committed premeditated murder, it caused the death of an unborn child, it happened in Indian country, and the victim was an Indian.

[00:42:19] Speaker 03:
So within... What we're talking about here is the inclusion of in element one, the defendant committed the crime of murder or manslaughter as alleged in count one, which would include both the involuntary and the voluntary manslaughter.

[00:42:34] Speaker 00:
Correct, Your Honor.

[00:42:34] Speaker 00:
And again, both voluntary and involuntary manslaughter are lesser included offenses of premeditated murder.

[00:42:43] Speaker 00:
And so the allegations contained in voluntary and involuntary manslaughter

[00:42:48] Speaker 00:
are all contained in the allegation of premeditated murder, you just subtract out the mens rea, effectively.

[00:42:56] Speaker 00:
So it's, in fact, one fewer allegation.

[00:43:00] Speaker 00:
Really, the question is, did the grand jury find probable cause to allege all the facts necessary to support this charge?

[00:43:10] Speaker 00:
And so the district court found that the

[00:43:18] Speaker 00:
that all the facts necessary to support a charge of premeditated murder as a predicate for count two were supported by probable cause.

[00:43:27] Speaker 00:
They necessarily found that all the allegations necessary to support

[00:43:33] Speaker 00:
voluntary manslaughter or involuntary manslaughter effectively that he killed the victim unintentionally or that he killed the victim in a heat of passion or any other means through which voluntary manslaughter might be achieved.

[00:43:47] Speaker 04:
Did the defendant ask not to have those lessers?

[00:43:52] Speaker 00:
He did.

[00:43:53] Speaker 00:
Well, I beg your pardon.

[00:43:54] Speaker 00:
He asked not to have those lesser included offenses as part of count two, but he asked for the jury to be instructed on those offenses with respect to count one.

[00:44:05] Speaker 00:
So there's no question the defense thought that these were appropriate theories here.

[00:44:09] Speaker 00:
It's just that he didn't want them included in the instructions for count two.

[00:44:14] Speaker 04:
Well, because if, well, if a defendant said after listening, you know, after the whole trial and usually jury instructions, obviously, then you meet and the judge says, I'm going to give these instructions and people have a chance to object.

[00:44:29] Speaker 04:
And let's, let's just say that a defendant felt like, well, I just don't think the prosecutor's proven what they've charged.

[00:44:39] Speaker 04:
They just haven't proven what they've charged.

[00:44:41] Speaker 04:
And I don't want any lesser included offenses.

[00:44:45] Speaker 04:
So they could do that, right?

[00:44:51] Speaker 00:
I believe this court, and I apologize.

[00:44:54] Speaker 00:
I don't have a case side.

[00:44:56] Speaker 04:
They could say, but it would generally not be under this.

[00:45:00] Speaker 04:
This isn't a situation of a whodunit.

[00:45:03] Speaker 04:
Let's just say after a whodunit that it was clearly a

[00:45:08] Speaker 04:
the defense felt pretty comfortable that they hadn't established that the client had done it.

[00:45:15] Speaker 04:
So they don't want lesser included, they don't want to give, they're just going all or nothing on the whole thing.

[00:45:21] Speaker 04:
But here, obviously, the facts are what they are no matter what.

[00:45:25] Speaker 04:
This defendant clearly did what happened here.

[00:45:28] Speaker 04:
It's a question of what is it at the end of the day?

[00:45:31] Speaker 04:
Was it a heat of passion?

[00:45:32] Speaker 04:
Was it

[00:45:35] Speaker 04:
They did did they argue that he was not guilty at all?

[00:45:40] Speaker 00:
No your honor and again, I think I take your honor's point It's kind of all meshed together, and then so you don't want them on One count, but you do want them on the other count that that was effectively defenses position here your honor I think the district was correct to reject that Let me ask on the question about whether or not

[00:46:03] Speaker 03:
Your office will provide key and culpatory information to the defense.

[00:46:10] Speaker 03:
I'm looking at Chief Judge Dew's order, and she says, look, you may not be legally required to produce it, but, you know, it is going to lead to trial by ambush if you don't.

[00:46:22] Speaker 03:
Has your office implemented any changes that, you know, the Assistant U.S.

[00:46:28] Speaker 03:
Attorney said, you know, I don't include in culpatory evidence because I'd be recording an impractically large amount of information.

[00:46:36] Speaker 03:
But why not include the key pieces of evidence?

[00:46:39] Speaker 03:
If you're going to charge count two, you know causation of causing death to the unborn child is going to be a major element that you need to prove.

[00:46:49] Speaker 03:
And so why not include the key inculpatory information that you need to satisfy the elements of the counts you're charging?

[00:46:56] Speaker 00:
All right.

[00:46:56] Speaker 00:
And I think I'd start off, Your Honor, just by noting

[00:46:59] Speaker 00:
This was not a deliberate decision by the government to not disclose this particular information.

[00:47:06] Speaker 00:
It's simply an implementation of the attorney's regular practice to attempt to abide by the rules.

[00:47:16] Speaker 00:
But I don't mean to accept your question.

[00:47:18] Speaker 03:
But this is what that attorney, that AUSA said.

[00:47:22] Speaker 03:
She only ensures exculpatory or impeachment evidence is recorded, not inculpatory evidence.

[00:47:30] Speaker 03:
And I understand what you're saying.

[00:47:31] Speaker 03:
They want to comply with Brady and Giglio obligations on the exculpatory evidence, but not to include the key inculpatory evidence in the government's 302's witness statements just seems to be not consistent with the government's role here, which is to be advancing justice and to be making sure that the jury is able to fulfill a truth-seeking mission and function

[00:47:59] Speaker 00:
Well your honor, I'll just have to step a little bit outside the record here to answer the court's question, but I'll just note that there has been continued development with the district court to I believe the district court issued a discovery order in another case with the United States or Spurlock to address the concerns here.

[00:48:18] Speaker 00:
I think you know forming a it's difficult to know which evidence is going to be

[00:48:24] Speaker 00:
you know, particularly key or how to delineate which inculpatory evidence is or is not subject to disclosure.

[00:48:32] Speaker 00:
But I would say, again, the government acted in good faith here.

[00:48:36] Speaker 00:
It continues to do so.

[00:48:37] Speaker 03:
But that is the second element, right, of count two.

[00:48:39] Speaker 03:
The defendant did thereby cause the death of a child who was in utero at the time the conduct took place.

[00:48:45] Speaker 03:
It seems that at a minimum, you should be providing witness statements that cover elements that you're intending to prove beyond a reasonable doubt at trial, right?

[00:48:54] Speaker 00:
Yes, Your Honor.

[00:48:54] Speaker 00:
And again, I think, you know, as the court, as the AUSA said at the hearing, you know, these things are almost always covered by the investigative reports.

[00:49:04] Speaker 00:
In this case, I don't think there's anything, there's any reason to believe this is anything more than an oversight.

[00:49:09] Speaker 00:
But again, the government is aware of its discovery.

[00:49:12] Speaker 04:
Now we're talking about the statement of the mother, the grandmother.

[00:49:15] Speaker 04:
Yes, who felt the baby move a day before.

[00:49:19] Speaker 04:
The day before.

[00:49:20] Speaker 00:
Yes, Your Honor.

[00:49:21] Speaker 04:
because the defense was trying to prove that the baby might have already been dead, so.

[00:49:27] Speaker 04:
That's correct, Your Honor.

[00:49:30] Speaker 00:
So again, I would say, Your Honor, this is something that we are working to address, that the district court is working to address.

[00:49:36] Speaker 00:
And again, the government, you know, as put forth in the hearing, acted in good faith here.

[00:49:43] Speaker 04:
So the doctor's appointment had been

[00:49:48] Speaker 04:
How much before?

[00:49:49] Speaker 04:
It was five days prior to that.

[00:49:50] Speaker 04:
Five days before, and that was already, that the baby was alive.

[00:49:56] Speaker 04:
Correct, Your Honor.

[00:49:57] Speaker 03:
What about the evidence that says six days before?

[00:49:59] Speaker 03:
Why is there that discrepancy between five and six?

[00:50:01] Speaker 00:
So I think measuring the time, Your Honor, I think the thing to remember is that while the murder happened on December 15th, it happened somewhere in the vicinity of about a half an hour after midnight.

[00:50:13] Speaker 00:
And so it's not like it's the next day, effectively, is what's happening there.

[00:50:18] Speaker 04:
Okay, so you're just about out of time.

[00:50:20] Speaker 00:
I thank the court for its time.

[00:50:23] Speaker 00:
We would ask the court to affirm the judgment in full.

[00:50:26] Speaker 00:
Thank you.

[00:50:26] Speaker 04:
Thank you.

[00:50:38] Speaker 01:
Your Honor, the government is confusing and conflating premeditation and heat of passion.

[00:50:46] Speaker 01:
Heat of passion is specifically dealing with anger, rage.

[00:50:54] Speaker 01:
Premeditation deals with the planning.

[00:50:59] Speaker 01:
That is why the heat of passion goes to malice, because if you are enraged, you cannot form the intent to kill under the defense.

[00:51:11] Speaker 01:
For purposes of harmlessness, this court would have to ask, if the jury found the government did not prove the absence of heat of passion beyond a reasonable doubt, could the jury convict?

[00:51:25] Speaker 01:
And the answer to that is no.

[00:51:28] Speaker 01:
The harmlessness has to take into account what would have properly occurred.

[00:51:34] Speaker 01:
Because this goes directly to an element of the offense, this is not a harmless error.

[00:51:41] Speaker 01:
And with regard to the government's disclosure.

[00:51:45] Speaker 04:
So if there were less, these, there were also given, was it also given lesser included?

[00:51:51] Speaker 04:
Yes.

[00:51:51] Speaker 04:
Were they given, and isn't my recollection, and admittedly it goes back a bit,

[00:51:57] Speaker 04:
to being a trial judge, but there's an instruction that goes along with that that says, before you look at the lesser included, you have to find, you have to acquit the people of what they're charged with.

[00:52:13] Speaker 04:
Am I wrong on that?

[00:52:15] Speaker 01:
This transitional paragraph did not occur here, but the verdict form at ER 333 specifically tells jurors, if you agree that he was guilty of first degree murder, basically stop there.

[00:52:29] Speaker 01:
So they wouldn't have gotten to the lesser included if they agreed.

[00:52:34] Speaker 04:
But there used to be an instruction that would say it wouldn't be like, okay, we're going to send all these verdict forms back to you and you can just pick what you want to do.

[00:52:43] Speaker 04:
There was an instruction with lesser included that said you must acquit the people of the greater before you look at the lesser.

[00:52:51] Speaker 01:
The district court here declined to give that transitional instruction, but the verdict form basically says the same thing to jurors.

[00:52:59] Speaker 01:
If you convict on count one, you're done.

[00:53:02] Speaker 01:
You don't go to the lesser included unless you don't agree on count one, first degree.

[00:53:08] Speaker 01:
Okay.

[00:53:09] Speaker 04:
With regard to the... Didn't they get a second degree verdict too?

[00:53:13] Speaker 01:
I'm sorry, Your Honor?

[00:53:14] Speaker 04:
Didn't they get a second degree verdict too?

[00:53:16] Speaker 01:
No, there was slashes through the lesser included that was meant... Couldn't they have found your client guilty of second degree murder?

[00:53:25] Speaker 01:
They could have.

[00:53:26] Speaker 04:
Yeah, so there was a first degree, a second degree, and then voluntary.

[00:53:31] Speaker 04:
The second degree would be without premeditation, right?

[00:53:35] Speaker 01:
Correct.

[00:53:35] Speaker 01:
All the lessors were in there.

[00:53:37] Speaker 01:
Okay.

[00:53:38] Speaker 01:
With regard to the government's failure to disclose that Ms.

[00:53:44] Speaker 01:
Davis's mother alleged to have felt fetal movement the day before Ms.

[00:53:49] Speaker 01:
Davis died, I appreciate that the government is now relying on the district court for discovery orders to correct this issue in the future.

[00:53:57] Speaker 01:
But this did not help Mr. Berciaga's defense team here.

[00:54:01] Speaker 01:
The government was well aware through the expert disclosures

[00:54:05] Speaker 01:
that one of the chief defenses was the government could not prove causation on count two given the trisomy 50 18 diagnosis and the more than 50 percent chance that this fetus could die at any moment at any time at any day this was trial by ambush on count two and the government

[00:54:27] Speaker 01:
The government should know better.

[00:54:29] Speaker 01:
And the government is expected to do better.

[00:54:31] Speaker 01:
And we would ask the court to find that, just like in United States versus Powell,

[00:54:39] Speaker 01:
the government's conduct here was not becoming of what is expected of U.S.

[00:54:43] Speaker 01:
attorneys who know exactly what the elements and the evidence are and what the government's, what the defense is.

[00:54:50] Speaker 01:
All right.

[00:54:52] Speaker 01:
Thank you.

[00:54:53] Speaker 04:
Thank you both for your argument.

[00:54:54] Speaker 04:
This matter will stand submitted.

[00:54:56] Speaker 04:
The court's just going to take a short recess, five to ten minutes, so don't go far.

[00:55:00] Speaker 04:
We'll be back to hear the last case on calendar.