[00:00:02] Speaker 01:
All right, the last case this morning before this panel is United States versus Kirby, number 247070.

[00:00:13] Speaker 01:
Counsel, you may proceed.

[00:00:23] Speaker 04:
Good morning, Your Honors.

[00:00:24] Speaker 04:
Leah Yaffe with the Federal Public Defender's Office for Mr. Danny Kirby.

[00:00:30] Speaker 04:
This case stems from a tragic motorcycle accident.

[00:00:33] Speaker 04:
Mr. Kirby was driving, and his girlfriend, the passenger, was killed.

[00:00:38] Speaker 04:
And Mr. Kirby was charged with involuntary manslaughter by way of Oklahoma's DUI statute.

[00:00:45] Speaker 04:
And at his trial, the jury sent a note expressing confusion about the under-the-influence element of that statute.

[00:00:52] Speaker 03:
Counsel, should we proceed on the understanding that the government isn't contesting confusion, that we can assume the jury was confused?

[00:01:00] Speaker 04:
Yes, I read the government's answer brief as accepting that there was a basis for the confusion in how the statute was written and in fact that the jury expressed confusion.

[00:01:09] Speaker 04:
I also just think that's the obvious conclusion to draw from this question.

[00:01:14] Speaker 04:
They're specifically asking, the quote is, is it okay?

[00:01:17] Speaker 03:
Well, we don't infer confusion from any time a jury asks a question, right?

[00:01:23] Speaker 03:
I think it depends on the question that the jury's asking sure.

[00:01:25] Speaker 03:
Here I think it's clear that it's... And so Bolenbach is our confusion, the Supreme Court's confusion case.

[00:01:31] Speaker 03:
Yes, that's correct.

[00:01:32] Speaker 03:
What is the duty on a court under Bolenbach?

[00:01:36] Speaker 03:
What is a court supposed to do?

[00:01:37] Speaker 04:
So when the jury asks a question about the law that they're supposed to be applying, and it is...

[00:01:45] Speaker 04:
appears that the jury is confused about the law, then the court has to dispel that confusion with concrete accuracy.

[00:01:51] Speaker 04:
That's the language from Bolambok.

[00:01:54] Speaker 04:
This court has used Bolambok in Zimmerman and Duran, so I think Zimmerman is really similar to this case.

[00:02:02] Speaker 04:
There was an apparent basis for the jury's confusion in the existing instructions themselves.

[00:02:08] Speaker 04:
The court, rather than give a clear, well-established legal answer to the jury's question, pointed back to the existing instructions packet as a whole.

[00:02:17] Speaker 04:
This court said, that didn't clear up the jury's confusion.

[00:02:20] Speaker 04:
You have to do it with concrete accuracy.

[00:02:22] Speaker 04:
There cannot remain a possibility that the jury convicted somebody on an incorrect legal basis.

[00:02:31] Speaker 03:
I want to ask you some questions about how we should think about party presentation when it comes to the court's duty under Bolenbach.

[00:02:38] Speaker 03:
Sure.

[00:02:38] Speaker 03:
So in the district court, defense counsel presented a version of an answer that was the defense preferred response, right?

[00:02:49] Speaker 03:
In this case, yes.

[00:02:50] Speaker 03:
In this case.

[00:02:51] Speaker 03:
And in your appellate brief, you offer a number of ways in which the district court could have answered the jury's question.

[00:02:59] Speaker 03:
And so is it your understanding that the duty that Boland Bach speaks to just inheres in what the district court is required to do and is not at all driven by what the defense is asking or what the parties are asking the district court to do?

[00:03:15] Speaker 03:
And I guess the reason I'm asking you this is because I want to make sure I understand

[00:03:19] Speaker 03:
how to assess your argument.

[00:03:21] Speaker 03:
What are we looking at?

[00:03:22] Speaker 03:
Is the district, you're alleging the district court or arguing the district court abused its discretion because it didn't, or aired because it didn't carry out its bollenbach duty in general, or because it didn't give the answer to the question that the defense asked it to give?

[00:03:38] Speaker 04:
The former, although I think the defense counsel's suggestion here was good and we can go with that.

[00:03:46] Speaker 04:
I think what a defense lawyer puts forward or what the parties say during the colloquy with the judge can impact preservation in some cases.

[00:03:53] Speaker 04:
I don't think it did here.

[00:03:54] Speaker 04:
Clearly what the defense counsel was asking was, please make it clear to the jury that mere presence of drugs is not enough to convict my client.

[00:04:02] Speaker 04:
That's not the law.

[00:04:03] Speaker 04:
agrees to formulate a response, comes up with something that I think is an accurate statement of law and pretty clear.

[00:04:09] Speaker 04:
But the question isn't, did the defense counsel get it right?

[00:04:12] Speaker 04:
It's, did the jury get their question answered?

[00:04:15] Speaker 04:
And that's what Bullenbach requires.

[00:04:16] Speaker 04:
It requires the jury to have their confusion dispelled.

[00:04:20] Speaker 04:
And if the defense counsel had proposed something incorrect here, we might be on plain error, but that's not the case, and the government certainly hasn't argued that.

[00:04:28] Speaker 01:
Is it possible, in a given case,

[00:04:32] Speaker 01:
looking at the instructions of the hall, considering the record, trial evidence record, for a court to dispel jury confusion by telling them to read the instructions again.

[00:04:43] Speaker 04:
I don't think there's a bright line rule against that.

[00:04:46] Speaker 04:
I don't know that it would ever work in a case like this one, where the apparent source of the confusion is the instructions themselves.

[00:04:54] Speaker 04:
That's very similar to Zimmerman.

[00:04:56] Speaker 04:
I think if you have a case where the jury's confused about something, it appears that the instructions fully cover this and are clear.

[00:05:04] Speaker 04:
and the note doesn't indicate source of confusion, then maybe it would be enough.

[00:05:09] Speaker 01:
I don't have a... What if the district judge gets the question and thinks, well, I wonder if the jury really has read the instructions as carefully as they should have.

[00:05:24] Speaker 01:
I'm going to tell them to go back and read the instructions.

[00:05:27] Speaker 01:
I'm not going to do something else.

[00:05:30] Speaker 01:
Why is that unreasonable?

[00:05:32] Speaker 04:
I think as a general matter, the cases that this circuit has, Zimmerman, Duran, say essentially you don't second guess if the jury's confusion is real confusion.

[00:05:42] Speaker 04:
It might be that there is a hypothetical case out there where you can infer pretty clearly from the record that the jury just didn't read the instructions well enough.

[00:05:51] Speaker 04:
Even if we assume that was true here though, the instructions don't answer the jury's question.

[00:05:57] Speaker 01:
Let me ask you about that.

[00:05:58] Speaker 01:
Instruction number 12, the words operating a motor vehicle under the combined influence.

[00:06:06] Speaker 01:
Why doesn't that tell the jury it had to find Mr. Kirby was impaired?

[00:06:11] Speaker 01:
Isn't under the influence the same as impaired?

[00:06:14] Speaker 04:
So the jury asked about under the influence, what does that mean?

[00:06:19] Speaker 04:
So this court has said when the jury expresses confusion about something here under the influence, under the combined influence is the same, you can't just use the same confusing term to the jury in the response.

[00:06:30] Speaker 03:
So this was Durand.

[00:06:32] Speaker 03:
What about Cope?

[00:06:32] Speaker 03:
I mean, when we said in our United States versus Cope that under the influence is reasonably understood due to the ordinary meaning of the words.

[00:06:40] Speaker 03:
I mean, how should we be thinking about that here?

[00:06:42] Speaker 04:
I think we should look at what Oklahoma says the law is in this case.

[00:06:45] Speaker 04:
You have to be rendered incapable of safely driving.

[00:06:48] Speaker 04:
And we know that states criminalize under the influence and define that differently.

[00:06:52] Speaker 04:
I cited a few examples in the reply brief.

[00:06:55] Speaker 04:
So when you're talking about a state DUI statute, that is a legal term of art with a different meaning.

[00:07:01] Speaker 04:
And even if we could say that there was a common understanding, we're not talking about what did the judge need to do in the existing instructions packet.

[00:07:10] Speaker 04:
Once the jury has expressed confusion, whether we think as lawyers that confusion is valid or not, the judge needs to clear it away.

[00:07:20] Speaker 02:
Is the instruction defective under influence?

[00:07:28] Speaker 02:
And particularly in this way, you reference the Oklahoma standard and it's certainly more clarifying what this OCCA has said than the instruction says.

[00:07:39] Speaker 04:
Sure, so the OCCA would say, yes, this is defective.

[00:07:43] Speaker 04:
We haven't raised that argument on appeal.

[00:07:46] Speaker 04:
I think this is really similar to Duran, where the argument on appeal was you should have answered the jury question about what agent means more clearly.

[00:07:55] Speaker 04:
That's the reason it got reversed.

[00:07:57] Speaker 04:
And this court noted, we're not sure the initial instruction on agent was really clear enough from the get-go, but that's not part of the analysis.

[00:08:04] Speaker 03:
But isn't that because of what the trial evidence showed in Duran?

[00:08:07] Speaker 03:
I mean, the trial evidence in Duran

[00:08:09] Speaker 03:
implicated three possible agents and so it was it was confusing and one of the ways in which you could discern that was by reference to what happened at trial.

[00:08:19] Speaker 04:
I think that is part of what's going into Duran.

[00:08:22] Speaker 04:
And also, the court is just saying we don't think agent is a self-defining term.

[00:08:26] Speaker 03:
But what I'm trying to understand is how to think about what actually happened at trial here in terms of determining whether the district court fulfilled its duty under Bolenbach to do concrete accuracy.

[00:08:41] Speaker 03:
And if everything at trial was about whether Mr. Kirby was

[00:08:47] Speaker 03:
in fact impaired.

[00:08:49] Speaker 03:
I mean, that was what the whole trial was about.

[00:08:51] Speaker 03:
How do we think about that in discerning whether telling the jury to go back to the instructions and specifically that last paragraph in the contested instruction or in the instruction that's at issue about the elements that says if you find the thing about the chemical analysis.

[00:09:11] Speaker 03:
So if you could speak to that, looking at what the trial record shows and that last piece of the instruction.

[00:09:17] Speaker 04:
Absolutely.

[00:09:18] Speaker 04:
So to the first part about what does the trial record show, the jury's instructed clearly that lawyers' argument about what is going on is not evidence.

[00:09:30] Speaker 04:
And this court has reaffirmed that we don't look to what the parties argued throughout the trial to decide whether the jury had sufficient clarity in the law, just recently in Kearney, I think earlier this month.

[00:09:45] Speaker 04:
Jury is informed that their responsibility is to follow the law as the judge instructs it.

[00:09:50] Speaker 04:
And they're confused about the instruction the judge gives them.

[00:09:52] Speaker 04:
That invokes Bullenbach and Zimmerman.

[00:09:56] Speaker 04:
We don't look and say, could they have figured it out by something the parties argued during trial?

[00:10:01] Speaker 04:
With respect to the chemical analysis paragraph, I think there's two main responses here.

[00:10:07] Speaker 04:
The first is, even if you read it the way that the government reads it,

[00:10:11] Speaker 04:
that's at best a clue.

[00:10:13] Speaker 04:
It doesn't clearly and concretely and with concrete accuracy dispel the jury's confusion about what the legal standard is.

[00:10:21] Speaker 04:
I also don't think that that was a fair way of reading what the jury would think about the chemical analysis paragraph.

[00:10:27] Speaker 04:
If you look at the

[00:10:30] Speaker 04:
The specific language of the jury note, they equate the word impaired with unlawful, with under the influence as this is the standard we're unsure about.

[00:10:39] Speaker 04:
Can you be per se impaired if there are drugs in your system is basically what the jury note is asking.

[00:10:44] Speaker 03:
Well, it seemed like the answer that the defense counsel proposed was better than what the statute says.

[00:10:52] Speaker 03:
The statute says may render, but what you need is actually rendered, this defendant, right?

[00:10:58] Speaker 03:
If we didn't have that last paragraph, that might make sense that there was confusion that was unanswered by referring the jury back to the instructions.

[00:11:08] Speaker 03:
But when this last paragraph clarifies and says the issue of whether the defendant's ability to drive a motor vehicle was impaired, it's focusing specifically on the defendant's impairment, which seems to me what the jury was actually confused about.

[00:11:25] Speaker 04:
So a couple of things there.

[00:11:27] Speaker 04:
It's not listed as an element in that section.

[00:11:30] Speaker 04:
It doesn't say mere presence of drugs in your system means you're not impaired, which is how I read the jury's question.

[00:11:38] Speaker 04:
Can the mere presence of drugs in your system mean that you're impaired under Oklahoma DUI?

[00:11:43] Speaker 04:
The fact that the issue is whether the defendant is impaired doesn't dispel that confusion at all as I read it.

[00:11:50] Speaker 04:
Just generally, I don't think it's unreasonable that the jury had this confusion here, both because, as the government concedes, the statutory language, which is what's in the instructions, is awkwardly written.

[00:12:01] Speaker 04:
It's confusing.

[00:12:02] Speaker 04:
There's this weird conditional phrase.

[00:12:04] Speaker 04:
And because the evidence of actual intoxication in this case was very equivocal.

[00:12:10] Speaker 02:
Well, every jury could be confused by this instruction, right?

[00:12:14] Speaker 04:
I agree.

[00:12:15] Speaker 02:
And so if that's the case, that every jury can be confused by this and think that in is enough, that it's in the system is enough, you'd say we would affirm unless the jury asked the note in this case, even though the jury misconvicted.

[00:12:32] Speaker 02:
In other words, I'm wondering why this isn't a jury instruction problem rather than a ball and bug.

[00:12:38] Speaker 04:
It could be both, but we've only raised the Bullenbach problem, and this court doesn't need the first thing to get to the Bullenbach problem.

[00:12:46] Speaker 04:
So this is Zimmerman.

[00:12:47] Speaker 04:
There, the court didn't analyze whether the existing instruction packet on its face for another jury would have been error or not.

[00:12:55] Speaker 04:
They just said, once we know that the jury's confused about this,

[00:12:59] Speaker 04:
We have to answer the question.

[00:13:00] Speaker 04:
So I think this court could assume that this instruction would have been erroneous in another case.

[00:13:05] Speaker 04:
We don't argue that, and we don't need the court to hold that.

[00:13:08] Speaker 04:
What has to happen when the jury asks a question, they're confused.

[00:13:12] Speaker 04:
We all agree that they're confused.

[00:13:14] Speaker 04:
We know the basis for their confusion.

[00:13:16] Speaker 04:
It's the statutory language that's in the instructions.

[00:13:19] Speaker 04:
The law is very clear.

[00:13:21] Speaker 04:
Jury's confusion has to be dispelled so that there's no possibility that they're convicting under an incorrect legal basis.

[00:13:28] Speaker 04:
And I think that's just where this court can stay.

[00:13:30] Speaker 02:
And here we have a really strong indication that that happened, which is all 12 jurors would know that there was an intoxicating substance in the defendant because of the blood alcohol and admissions.

[00:13:43] Speaker 02:
And so the only reason to ask the question, I'm kind of talking to the government here too, the only reason for asking the question is because there wasn't a full agreement on whether or not there was under the influence slash impaired.

[00:13:56] Speaker 02:
And so then the jury comes back five minutes after getting the response from the court as I recollect it.

[00:14:02] Speaker 02:
And so that strongly suggests that they said, oh, well, OK, in is good enough.

[00:14:08] Speaker 04:
I 100% agree with that, and I also think that's what this court has already said in Duran.

[00:14:13] Speaker 04:
So a jury's question indicates that at least one juror thinks this is important and has this confusion.

[00:14:20] Speaker 03:
But just to clarify, you don't contend in this appeal that this instruction misstates the law, right?

[00:14:27] Speaker 03:
We just haven't raised that as an appellate issue.

[00:14:30] Speaker 03:
That's not an issue.

[00:14:31] Speaker 03:
We're not going to look at this as a jury instruction case, an ordinary jury instruction case, because that's not how you litigated it.

[00:14:38] Speaker 03:
What relevance are these first principles that we go to in jury instruction cases where we look at all the instructions to see what the jury was, how the jury understood the law, we assume the jury read the instructions.

[00:14:51] Speaker 03:
Are those principles relevant to our disposition of the Boulevard question?

[00:14:55] Speaker 04:
I think they can be relevant.

[00:14:57] Speaker 04:
It's not how this court goes about the analysis in Zimmerman and Duran.

[00:15:01] Speaker 04:
Just look at the question.

[00:15:02] Speaker 04:
Look at the answer.

[00:15:03] Speaker 04:
Did this clear away the confusion?

[00:15:05] Speaker 04:
I don't think there's any reason this court can't look to the packet of instructions when the judge's response was to look at the packet of instructions.

[00:15:12] Speaker 04:
But I don't think that you can say anything in these instructions completely cleared away the jury's confusion in this case.

[00:15:19] Speaker 01:
Let me ask you about one other instruction.

[00:15:21] Speaker 01:
I was meaning to add that to instruction 12.

[00:15:24] Speaker 01:
13, which in part refers to the issue of whether the defendant's ability to drive a motor vehicle was impaired.

[00:15:35] Speaker 01:
What if they went back and read that one?

[00:15:37] Speaker 01:
Why wouldn't that potentially clear up the confusion?

[00:15:41] Speaker 04:
And I just want to make sure your honor was referring to the chemical analysis paragraph.

[00:15:46] Speaker 01:
Well, I meant 14, yeah.

[00:15:49] Speaker 04:
So this, again,

[00:15:51] Speaker 04:
I read the jury's question.

[00:15:54] Speaker 04:
Well, the jury's question says, is it enough to convict Mr. Kirby, basically, for the mere presence of drugs?

[00:16:02] Speaker 04:
Is that enough to find him impaired?

[00:16:04] Speaker 04:
They use the word impaired.

[00:16:05] Speaker 04:
Is it enough to find him unlawful?

[00:16:06] Speaker 04:
They use the word unlawful, just same as impaired.

[00:16:09] Speaker 04:
They're essentially asking, can somebody be considered impaired, per se, because they have substances in their system?

[00:16:16] Speaker 04:
So if they read this part of the jury instructions and that's their understanding of impaired, it doesn't answer the question at all.

[00:16:23] Speaker 04:
Even if my reading is incorrect, this is not an answer to the question.

[00:16:28] Speaker 04:
This element does not mean that you can convict him because there are drugs in his system.

[00:16:33] Speaker 01:
What if the judge had said, I think the jury instructions on this are enough for you.

[00:16:40] Speaker 01:
I would like you to go back and look at them again.

[00:16:44] Speaker 01:
And if you're still confused, you can come back and ask for clarification.

[00:16:49] Speaker 01:
What about that scenario?

[00:16:51] Speaker 04:
Two points there.

[00:16:53] Speaker 04:
I don't know that would be best practice, but then if the jury- I didn't say it was best practice.

[00:16:58] Speaker 04:
I'm just saying what if the judge had done- I think we'd have to see if the jury asks a follow-up question there, but it reminds me of a really key point here, which is the district court isn't doing that in this case.

[00:17:07] Speaker 04:
In fact, the exact tension that we're talking about here of whether which may render means the same thing as actually rendered someone incapable of safely driving.

[00:17:17] Speaker 04:
This came up explicitly to the district judge.

[00:17:20] Speaker 04:
As the government notes, he was uncomfortable with the defense counsel's accurate statement of law because the court wasn't sure about the law.

[00:17:29] Speaker 04:
determined that, he left that legal ambiguity to the jury.

[00:17:32] Speaker 03:
Well, was it an accurate statement of law?

[00:17:34] Speaker 04:
Yes.

[00:17:34] Speaker 04:
Why?

[00:17:35] Speaker 04:
I mean, using different statutory language.

[00:17:38] Speaker 04:
Because in Breger, the OCCA case, they said that the definitional standard for Oklahoma DUI is that you're rendered incapable of safely driving, which is exactly what the defense counsel asked the court to say to the jury in this case.

[00:17:50] Speaker 04:
I'm aware I'm out of time, so we'd ask for a reversal and a new trial.

[00:17:54] Speaker 04:
Thank you.

[00:17:55] Speaker 00:
Thank you, counsel.

[00:17:57] Speaker 00:
May it please the court?

[00:17:58] Speaker 00:
My name is Linda Epperly.

[00:17:59] Speaker 00:
I'm an Assistant United States Attorney, and I represent the United States in this matter.

[00:18:05] Speaker 00:
Your Honor, this is a case where a experienced jurist looked at a packet of instructions, sent the jury off.

[00:18:16] Speaker 00:
The jury comes back with two notes, the first of which got off into negligence, gross negligence, et cetera.

[00:18:24] Speaker 00:
Every question the jury asked in that first note, the court accurately responded to by saying, I define negligence.

[00:18:32] Speaker 00:
The instructions define gross negligence.

[00:18:36] Speaker 00:
Basically, go back and read the instructions.

[00:18:39] Speaker 00:
With that as a backdrop, the court then receives the note that is at issue here.

[00:18:48] Speaker 00:
in which the jury asked when stating under the influence, does this mean as long as it's in his system, it is unlawful, or do we need to determine if he was affected by the substances or impaired to be unlawful?

[00:19:03] Speaker 00:
This is not a case where the court made an arbitrary

[00:19:07] Speaker 00:
capricious or whimsical response.

[00:19:10] Speaker 03:
Well, to determine whether that's so, we're looking at Bolenbach, you agree, right?

[00:19:15] Speaker 03:
That's our case, the jury confusion case that applies.

[00:19:19] Speaker 00:
That is the overall case.

[00:19:20] Speaker 03:
Yeah, that's the overall case, which requires a district court to respond with concrete accuracy, right?

[00:19:26] Speaker 00:
Correct.

[00:19:27] Speaker 03:
And dispel the jury's confusion.

[00:19:29] Speaker 03:
with concrete accuracy.

[00:19:30] Speaker 03:
How does a court fulfill its duty under Bolenbach to clear away jury confusion with concrete accuracy by referring the jury back to instructions that were confusing to the jury in the first place?

[00:19:45] Speaker 03:
It's this loop.

[00:19:46] Speaker 03:
Maybe in some cases, but why here should we say the court fulfilled its duty under Bolenbach by referring the jury back to the instructions?

[00:19:57] Speaker 00:
For several reasons, Your Honor.

[00:20:00] Speaker 00:
I think that the phrase from Bolenbach of defining something with clear accuracy for the jury or complete accuracy, I don't see, I don't read that as saying that the government has the responsibility to provide the most comprehensive instruction possible.

[00:20:23] Speaker 00:
I think that it has to be read in light of the facts in Bolenbach where the court actually

[00:20:30] Speaker 00:
issued a wrong instruction, the Supreme Court indicated that they believed that the answer the court gave was palpably incorrect and just flat wrong.

[00:20:41] Speaker 00:
That's not what we have here.

[00:20:43] Speaker 00:
We further would direct the court's attention to the recent decisions of this case in Woodmore, which indicated that

[00:20:58] Speaker 00:
We don't, the court need not go further and define terms that have an ordinary meaning.

[00:21:05] Speaker 00:
And where a definition would insert more questions by adopting a more technical look at the jury's question, the court is not required to do so.

[00:21:17] Speaker 00:
Secondly, in the Murray case, this court indicated

[00:21:21] Speaker 00:
that a clearer understanding of the issues is not the response that the trial court is to pursue.

[00:21:30] Speaker 03:
So is it the government's position that if so long as there's no dispute that the instructions don't misstate the law, the instructions are correct, then

[00:21:40] Speaker 03:
it's always appropriate to resolve jury confusion by just referring the jury back to the instructions.

[00:21:48] Speaker 03:
Is that the government's position?

[00:21:49] Speaker 00:
No, the government's position is not that that is always appropriate.

[00:21:52] Speaker 00:
I can certainly think of examples where simply on a snap decision saying go back and read the instructions would be arbitrary, capricious, or whimsical.

[00:22:03] Speaker 00:
But that is not what happened here.

[00:22:05] Speaker 00:
Here the judge took several pages of the transcript

[00:22:09] Speaker 00:
to discuss this matter in a thoughtful way with both counsel, took time to offer the defense an opportunity to present a proposed definition, if they wanted a definition of DUI, and then engaged in more discussion with the party.

[00:22:25] Speaker 00:
So this is not a judge who made a snap decision off the hip, but a judge who went through a reasonable process.

[00:22:34] Speaker 00:
Secondly.

[00:22:35] Speaker 02:
Talking about the defendant here,

[00:22:36] Speaker 02:
and the conviction, do you agree that there is a very realistic possibility, if not probability, that the jury convicted here on the basis of an intoxicant in this system, in this person's system?

[00:22:54] Speaker 00:
I would agree it is a closer case than we would normally see, because I think in most DUI cases, we have a BAC content that puts it over the edge.

[00:23:03] Speaker 02:
But here... If you don't want to answer it, I don't want to answer it.

[00:23:07] Speaker 02:
But the question is, do you agree that there is a realistic possibility, if not probability, that the jury convicted on

[00:23:14] Speaker 02:
this person having the intoxicant in the system rather than the person being impaired.

[00:23:20] Speaker 02:
And my reason for that, I kind of gave you a preview, is all 12 jurors knew that this person had alcohol and other substances in his body.

[00:23:32] Speaker 02:
So no need for a note on that.

[00:23:34] Speaker 02:
But they sent a note on tell us which one we have to have and if

[00:23:39] Speaker 02:
All of them agreed that the person were impaired.

[00:23:42] Speaker 02:
There'd be no reason to send a note, be convicted under either one of those.

[00:23:47] Speaker 02:
So by sending the note, doesn't that tell us that at least one and maybe more jurors were like, I'm not convicting until I find out whether or not he has to be impaired?

[00:23:58] Speaker 02:
And then when it comes back to the jury, my recollection, if I'm mistaken, correct me because it's dim.

[00:24:03] Speaker 02:
But five minutes later, the jury convicts.

[00:24:08] Speaker 02:
Should I not be very concerned that we have a wrongly convicted person here?

[00:24:13] Speaker 00:
No, Your Honor, for two reasons.

[00:24:15] Speaker 00:
First of all, if the jury went back and then re-looked at the instructions, as they'd been told to do, as Judge Matheson was stating in instruction number 13, they're specifically told that there's got to be impairment.

[00:24:32] Speaker 02:
And secondly, it's not... There's a lot of chaff before you get to the wheat.

[00:24:36] Speaker 02:
I mean, you can pick and you can say the word impaired is used in that sentence.

[00:24:41] Speaker 02:
And so surely the jury must have known that there had to be impaired.

[00:24:45] Speaker 02:
But this language is so awful.

[00:24:47] Speaker 02:
And as far as the witch, when you pick up with the witch and any other intoxicating substance, no comma, witch,

[00:24:58] Speaker 02:
So we got a relative pronoun there, needs an antecedent, which is controlled substance, I think, may render any person incapable of safely driving.

[00:25:07] Speaker 02:
That means the intoxicant can do that.

[00:25:11] Speaker 02:
The jury can't use any sort of a substance that doesn't intoxicate and render someone.

[00:25:17] Speaker 02:
In other words, if you got any grammarians on the jury, then that person is instantly confused by that language.

[00:25:25] Speaker 00:
But short of going through a grammarical exercise in an answer in return, which might be more confusing to the jury,

[00:25:33] Speaker 02:
It's not that hard to correct it, because the Oklahoma Court of OCCA has given a very lucid sentence on what it takes to be convicted here that clearly tells the jury or reader that there has to be impairment that made the difference, that caused the death.

[00:25:59] Speaker 00:
The government, first of all, the government does not admit that the Oklahoma law is horrible or that in the end, after consideration, is confusing.

[00:26:11] Speaker 00:
I think that we introduce the phrases that are quoted back to us today as simply explanatory phrases in order to get into an argument.

[00:26:22] Speaker 00:
So we've not made that concession back.

[00:26:23] Speaker 03:
Well, you don't disagree that the jury was confused, right?

[00:26:24] Speaker 03:
You don't disagree the jury was confused here.

[00:26:26] Speaker 03:
You conceded that, it seems, from your briefing.

[00:26:35] Speaker 00:
At least one juror wanted more clarification.

[00:26:38] Speaker 03:
I mean, you say the jury instructions were confusing.

[00:26:40] Speaker 03:
A clarifying instruction might have been helpful.

[00:26:42] Speaker 03:
The jury, in fact, experienced confusion.

[00:26:44] Speaker 03:
I mean, this is all in your brief.

[00:26:45] Speaker 03:
So I'm asking you this because it attends to our point of departure for doing the Bolenbach analysis here.

[00:26:51] Speaker 03:
Are we spotting jury confusion?

[00:26:52] Speaker 03:
Seems like we are.

[00:26:53] Speaker 03:
You've conceded it.

[00:26:54] Speaker 00:
Again, I think that this goes toward, is it

[00:26:57] Speaker 00:
Is there confusion because they have not clearly read the instructions, as in the first jury note?

[00:27:03] Speaker 00:
Or is there confusion because the Oklahoma statute itself is confusing, at which point you give a definition.

[00:27:10] Speaker 00:
I think the important qualifier on all of that, though, is that when the defense was offered the opportunity to present

[00:27:17] Speaker 00:
a definition.

[00:27:18] Speaker 00:
They did not present the definition that has been written by the Oklahoma Court.

[00:27:23] Speaker 03:
Well, that goes back to my question to Appellants Council that how much should we be thinking about preservation or party presentation when it comes to how a district court accomplishes its duty under

[00:27:36] Speaker 03:
because it seems like to the extent waiver principles of any kind would apply, you've waived them because you haven't insisted that we're confined to looking just at what the defense counsel presented to the district court.

[00:27:48] Speaker 03:
You respond to appellant's suggestions about what else the court may have considered doing on its own.

[00:27:55] Speaker 00:
I agree that we have discussed issues with the defense instruction.

[00:28:03] Speaker 00:
To the extent that the court is asking me to address

[00:28:06] Speaker 00:
address a similar question posed in counsel about whether or not looking at that definition sort of as a matter of law from the outset was waived by their failure to argue it here.

[00:28:19] Speaker 00:
If that is what the court is arguing, we would agree that this is not a case where

[00:28:26] Speaker 00:
this court is looking at, is that instruction necessary in order to sustain any conviction?

[00:28:32] Speaker 00:
If so, we would have had an instruction question as part of this appeal, and we don't.

[00:28:37] Speaker 00:
That was waived.

[00:28:39] Speaker 00:
So we only have to look at that in the context of this note of potential jury confusion.

[00:28:44] Speaker 01:
At that point, I believe- So, counsel, I'd like to turn to-

[00:28:51] Speaker 01:
hearing your views on if there was error or whether it was harmless.

[00:28:56] Speaker 01:
And first of all, if there was error, is the burden on the government to show harmlessness beyond a reasonable doubt?

[00:29:06] Speaker 01:
And whether it's reasonable doubt or preponderance, how have you shown that, again, assuming error, that it was harmless?

[00:29:16] Speaker 00:
I appreciate the question, Your Honor.

[00:29:19] Speaker 00:
And in addressing harmless error, I hopefully will get back to some of the things that I didn't mean to be dodging your question about.

[00:29:25] Speaker 00:
Judge Phillips was saying, was it just the intoxicant itself?

[00:29:29] Speaker 00:
We believe that it was intoxicant, plus the evidence that I'll discuss in a moment.

[00:29:34] Speaker 00:
We would agree that harmless error requires the government to show beyond a reasonable doubt that but for that error, the result would have been different.

[00:29:42] Speaker 02:
So you're saying constitutional error.

[00:29:45] Speaker 02:
That's the only time you have to do it beyond a reasonable doubt, isn't it?

[00:29:48] Speaker 00:
then perhaps I am mistaken, Your Honor, because I do believe that at least the state of Oklahoma, in their evaluation of this kind of issue, has said that the instruction itself is not a constitutional error.

[00:30:04] Speaker 00:
It depends.

[00:30:05] Speaker 00:
And the government is.

[00:30:06] Speaker 02:
It depends on the case.

[00:30:07] Speaker 02:
You cite Freeman, and there we have omitted instructions or elements, I should say, or neither.

[00:30:12] Speaker 02:
There's an element that is not included, and then we

[00:30:16] Speaker 02:
Evaluate is the evidence so overwhelming that it beyond a reasonable doubt, but this one.

[00:30:21] Speaker 00:
I'm not so sure as that it's This is a case that that initially when I began looking at it to argue seemed like it should be clear-cut And I would agree the further I get into it the more confused I get but in this case there are

[00:30:38] Speaker 00:
facts under either one of those sufficient to support the jury's verdict.

[00:30:43] Speaker 03:
But harmlessness is not about sufficiency, is it?

[00:30:46] Speaker 00:
Excuse me.

[00:30:47] Speaker 03:
Harmlessness is not about the sufficiency of the evidence.

[00:30:50] Speaker 00:
No, we need to show, if we have to show beyond a reasonable doubt, it would have to be overwhelming.

[00:30:55] Speaker 00:
But we believe that it is here based upon the troopers who saw independent

[00:31:01] Speaker 00:
objective bodily sensations from this defendant that indicated that there was intoxication.

[00:31:08] Speaker 00:
We had a nurse at the hospital sometime later in a whole other town.

[00:31:12] Speaker 03:
The sufficiency of the evidence is not how we're doing harmless error review, right?

[00:31:17] Speaker 03:
I mean, we're looking at whether the confusion about the legal standard explains the jury verdict or not.

[00:31:23] Speaker 03:
I mean, assuming the jury was confused about

[00:31:27] Speaker 03:
the legal standard and you don't prevail on error, then don't we ask whether that's why or that's how we understand why the verdict we got was actually rendered?

[00:31:42] Speaker 03:
Is it attributable to the error or not?

[00:31:44] Speaker 00:
I think that the way the court could look at this is to look at

[00:31:49] Speaker 00:
the instruction that was suggested.

[00:31:52] Speaker 00:
I guess you could look at the instruction that the Oklahoma court suggests, but you could also look at the one suggested by defendant and require a request and figure out whether, if that instruction had been given, have we proved overwhelmingly that the result would have been the same.

[00:32:09] Speaker 00:
And here, based on the testimony of the troopers, the nurse at the hospital, the experts who talked about

[00:32:17] Speaker 00:
the impact that those kind of chemicals would have on anyone, particularly when it's combined with things like oxycodone.

[00:32:25] Speaker 03:
Do you agree that it's the government's burden to establish harmless air?

[00:32:29] Speaker 03:
Yes.

[00:32:32] Speaker 03:
I agree with you.

[00:32:33] Speaker 03:
These are challenging cases, especially this intersection of jury confusion cases or jury instructional error cases.

[00:32:38] Speaker 03:
But it's important that the government carries its burden by positing for us what the standard is.

[00:32:46] Speaker 03:
And I don't see that you have done that.

[00:32:49] Speaker 03:
Tell me why I'm wrong.

[00:32:50] Speaker 00:
The standard here, as shown by the district court, and I see I'm out of time.

[00:32:56] Speaker 00:
Would you like me to continue briefly?

[00:33:00] Speaker 00:
is that there is actual impairment.

[00:33:04] Speaker 00:
In other words, there was an issue of whether a defendant's ability to drive a motor vehicle was impaired.

[00:33:09] Speaker 00:
They were told that in instruction 13, and we have no argument with that.

[00:33:15] Speaker 00:
If that is the case, then I believe that we are showing even if that instruction had been given, would the jury have reached the same verdict.

[00:33:25] Speaker 00:
and here they would have for the factual reasons that are present in the record.

[00:33:29] Speaker 00:
We'd note that state and federal law alarms harmless, allows harmless error in such cases.

[00:33:35] Speaker 00:
And I also would go back to where I began, which is a trial judge who is

[00:33:41] Speaker 00:
attempted to go through a reasoned response with the jury and based upon all the circumstances before it, including the first note, has determined that the correct response in order to avoid error and giving a probably incorrect answer or creating more confusion for the jury was simply to say, please go back and read the instructions.

[00:34:04] Speaker 00:
They did and they came back with a verdict.

[00:34:06] Speaker 00:
We'd ask you to affirm.

[00:34:08] Speaker 01:
Thank you, counsel.

[00:34:10] Speaker 01:
I think we're out of time.

[00:34:12] Speaker 01:
So we'll consider this case submitted.

[00:34:15] Speaker 01:
Counsel may be excused, and the court will stand in recess until September 24 in Laramie, Wyoming.

[00:34:24] Speaker 01:
Am I right about that, Judge Phillips?

[00:34:26] Speaker 01:
All right.

[00:34:27] Speaker 01:
Thank you.