[00:00:00] Speaker 04:
United States versus Mary Boyd, 23-4117.

[00:00:09] Speaker 01:
May please the court.

[00:00:11] Speaker 01:
Excuse me.

[00:00:11] Speaker 01:
May please the court, Jake Rochebeau, for the appellant, Mr. Mary Boyd.

[00:00:16] Speaker 01:
Two errors prevented the jury from properly considering whether Mr. Mary Boyd lacked the mens rea for second degree murder.

[00:00:25] Speaker 01:
First, jeez, sorry.

[00:00:29] Speaker 01:
First, a government expert testified that Mr. Maryboy's conduct was the ultimate expression of recklessness, which violated Rule 704B.

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And second, the instructions failed to inform the jury that the government had the burden to prove beyond a reasonable doubt that Mr. Maryboy did not subjectively believe he was acting in self-defense, and in fact erroneously told the jury it could convict him of second-degree murder even if he subjectively believed he was acting in self-defense.

[00:00:55] Speaker 01:
Given that mens rea was the only disputed element to trial, both errors independently warrant reversal.

[00:01:02] Speaker 01:
Under Rule 704B, an expert cannot expressly draw the conclusion that a defendant acted with the necessary mens rea.

[00:01:09] Speaker 01:
Here, Agent Olson repeatedly opined that Mr. Maryboy's conduct was reckless, gross, negligent, reckless, even the ultimate expression of recklessness.

[00:01:18] Speaker 01:
This clearly violated the rule.

[00:01:21] Speaker 01:
Wood makes this absolutely clear.

[00:01:23] Speaker 01:
There, a government expert testified that the defendant's conduct or his actions were reckless because they were fraught with the perils of causing death.

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This court recognized that although his testimony was not cast in precisely the same terminology as the statute, case law, or instructions, they still recited the critical components they identify and therefore violated rule 704B.

[00:01:48] Speaker 01:
The exact same thing happened here.

[00:01:50] Speaker 01:
Agent Olson testified

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that he was reckless, gross, negligent, reckless, and the ultimate expression of recklessness.

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And this is materially indistinguishable from the definition of extreme recklessness malice that the jury received in the instructions.

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The only distinction between this case and Wood would be that in Wood,

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the government experts specifically testified that the defendant's conduct was reckless.

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Whereas here, the government asked the experts a series of hypotheticals.

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But this court's precedent in Denison and other cases and the Supreme Court recently in Diaz confirmed that experts cannot circumvent Rule 704B by answering questions about hypotheticals.

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unless they actually qualify their responses by saying most defendants in this situation would have this mens rea.

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Here, Agent Olson did not qualify his testimony in any way and therefore expressly drew the conclusion for the jury that Mr. Maryboy's conduct was extremely reckless.

[00:03:02] Speaker 02:
Counsel, can we go backwards a little bit to talk about preservation and whether or not the objection as to form

[00:03:09] Speaker 02:
believe, is the objection that was made preserved this issue sufficiently so that we look at it for abuse of discretion versus plain air?

[00:03:19] Speaker 02:
Can you help me understand your argument as to what standard of review we apply?

[00:03:23] Speaker 01:
Sure.

[00:03:25] Speaker 01:
I understand that the form of the question is not a specific objection.

[00:03:28] Speaker 01:
I think there's an argument that, based on context, the district court understood what he was objecting to, mainly because that's the only thing that he could be objecting to.

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when he later objected to the government's question about how does this compare to extreme recklessness, that was objected to, again, as to the form of the question.

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And the district court sustained that.

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So I think that shows that the district court understood what the substance of the objection was.

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But I also think, and I've addressed plain air proactively in my briefs, because I think this court's precedent in Wood and Denison and the Supreme Court's recent decision in Diaz

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make this error absolutely plain.

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So under either standard of review.

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I don't think this court really needs to decide which standard of review applies because we can prevail under both.

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Now the government's main argument is that this issue has been waived because defense counsel conceded recklessness and abandoned the misfired warning shot theory of defense.

[00:04:24] Speaker 01:
This is incorrect both factually and legally.

[00:04:28] Speaker 01:
Factually,

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The defense counsel did not abandon this theory at all.

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In fact, in closing argument, he specifically argued, quote, they were warning shots, not reckless.

[00:04:38] Speaker 01:
Therefore, he did not concede that the actions were reckless or abandon the misfire warning shot theory.

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But even if he had, that's just not how waiver works.

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The theory of the defense, that the defense pursuit has nothing to do with whether they affirmatively abandoned or waived an evidentiary issue.

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The government also argues that there was no violation because recklessness is not the mens rea, malice is.

[00:05:04] Speaker 01:
But Wood is directly on point there.

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The expert doesn't have to testify directly to the mens rea as defined in the statute.

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He just has to recite the critical components, which he clearly did here.

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The government also argues that the statements are unclear, that he might not be talking about Mary Boy's specific conduct, ultimate expression could be

[00:05:26] Speaker 01:
of recklessness could just mean it was a great example or the best possible example of ordinary recklessness or that he meant those terms in the colloquial sense.

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But we know that's not true because he was responding to the question, how reckless was that act?

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So he's clearly talking about the degree of recklessness.

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And when he says the degree of recklessness was the ultimate expression of recklessness, clearly he's saying that this conduct is extreme, but not more than extremely reckless.

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It is the ultimate of recklessness.

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And even if he was trying to use colloquial language, there's no way the jury would have known that.

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And it's clearly not how the parties understood it at the time, because- Remind me of the specific testimony.

[00:06:12] Speaker 04:
You think the question makes it clear that the witness was referring specifically to the defendants being reckless.

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Is that right?

[00:06:20] Speaker 04:
Right.

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Would you read the question and what the response was?

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Do you have that in?

[00:06:23] Speaker 01:
Read the question.

[00:06:24] Speaker 01:
The question was, how reckless was that act?

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So he had- Act.

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Yeah.

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So he had just- so the way that the- in-

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The objectionable testimony occurred both on direct and on redirect.

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On direct examination, he posed three hypotheticals.

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One was if somebody had pointed this firearm, because this was the firearms expert.

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So he testified that if somebody had pointed the firearm directly at this person and fired, would that be consistent with, or somebody pointed them

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The first two hypotheticals were one, if you had raised it at like a 45 degree angle of fire.

[00:07:02] Speaker 04:
But the first questions were clearly hypothetical, not necessarily... Yeah.

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And then the third hypothetical was, please refer to Rachel Green's diagram that she has provided.

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And here, now I'm going to add 10 to 12 new facts to this hypothetical.

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And then, all based on Rachel Green's testimony.

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And then on redirect, he changed the hypothetical to

[00:07:29] Speaker 01:
Um, if he had fired, uh, intended to fire a warning shot as he's raising, um, the firearm, it went off while it was pointed at.

[00:07:40] Speaker 04:
Did the experts say that was reckless or that would have been reckless?

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Which, what was the language used?

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Um, I think it's the exact language.

[00:07:48] Speaker 04:
Diaz suggests the very particular concern with what precise words were used, it seems to me.

[00:07:56] Speaker 01:
Right.

[00:07:56] Speaker 01:
So he says, how reckless is that act?

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So the government is specifically referring to the act.

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That's the question.

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And the answer was, that act was or that act would be?

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That is the ultimate expression of recklessness.

[00:08:17] Speaker 01:
you just used the term reckless.

[00:08:20] Speaker 01:
So first he referred to recklessness, then the government says, you just used the term reckless.

[00:08:24] Speaker 01:
That scenario that we just went through, how reckless is that act?

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And then the witness says, anytime you handle a weapon in an unsafe manner, it could take another human life.

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And so to me, that's the ultimate expression of recklessness.

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So he's asking how reckless was that conduct?

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And the answer is that,

[00:08:42] Speaker 01:
was the ultimate expression of recklessness, because it can take a human life.

[00:08:48] Speaker 01:
So he's not qualifying it by saying, well, I would say most defendants in that situation would probably be acting recklessly.

[00:08:55] Speaker 01:
And that's what it was in Diaz, as long as you're just saying, that's the blind mule case, where as long as you're saying, well, most defendants in this scenario probably know that the drugs are in the car.

[00:09:07] Speaker 01:
That is OK, because you're not telling

[00:09:10] Speaker 01:
the jury that it has to draw, or that they are, it's not drawing the conclusion for the jury that this specific defendant was.

[00:09:16] Speaker 01:
But if you don't qualify and you just say, this hypothetical defendant was acting recklessly, then you're saying every person in the defendant's shoes are acting recklessly, and that's what's prohibited.

[00:09:28] Speaker 02:
Counsel, let's assume that we were to conclude there is a 704B violation.

[00:09:34] Speaker 02:
Help me understand your argument as to why that would merit reversal.

[00:09:39] Speaker 02:
when the context of this case is maybe that Olson's testimony was regarding extreme recklessness, but at the end of the day, the victim was shot in the back of the head.

[00:09:48] Speaker 02:
So how do we balance the testimony of Olson and that error with what seems to be pretty strong evidence for the government about the forensics of him being shot in the back of the head, but also the blood spatter showing that he was standing with an open door to his van?

[00:10:05] Speaker 01:
So I agree that the physical evidence is overwhelming that he died near the van and was shot in the back right side of the head.

[00:10:15] Speaker 01:
But that's circumstantial evidence of intent.

[00:10:19] Speaker 01:
But it's not inconsistent in any way with Mr. Maryboy's defense, which was that I was intending to fire a warning shot, and it must have gone off prematurely as I was raising the firearm.

[00:10:30] Speaker 01:
Unfortunate, certainly, and perhaps unlikely how

[00:10:35] Speaker 01:
to actually hit them in the head, but it's not inconsistent at all.

[00:10:38] Speaker 01:
The physical evidence doesn't contradict Mr. Mary Boy's defense in any way.

[00:10:44] Speaker 03:
What would be the need for a second warning shot if the deceased is facing away from you?

[00:10:54] Speaker 03:
How many warning shots does he get?

[00:10:58] Speaker 01:
I'm not sure.

[00:10:58] Speaker 01:
I don't know that there's any sort of

[00:11:01] Speaker 01:
I'm not aware that we can say that one warning shot is reasonable, a second warning shot is unreasonable.

[00:11:07] Speaker 01:
Perhaps the logic at the time was to

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show him that he really did mean it, that it wasn't like a hollow gesture or something, I'm not really sure.

[00:11:15] Speaker 01:
But I don't know that we can read too much into the government's argument at trial was, well, if the first one didn't work, why would you fire a second one?

[00:11:24] Speaker 01:
I think it was an extremely tense moment.

[00:11:27] Speaker 01:
And the argument, the alternative argument below and the argument on appeal now is not that he took a reasonable course of action, just that he

[00:11:38] Speaker 01:
He did what he did because he subjectively was in fear and thought that this was subjectively was acting in self-defense in the moment.

[00:11:49] Speaker 01:
The testimony was also prejudicial because mens rea was the only disputed element, as I've mentioned.

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The law enforcement expert testimony is extremely persuasive to jurors, and this court has said that.

[00:12:01] Speaker 01:
The mens rea between second degree murder and involuntary manslaughter

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The difference between those two is an extremely fine line.

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It just exists on a spectrum.

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So it's likely that his testimony was exactly what the jury needed to push the line from regular recklessness to extreme recklessness.

[00:12:24] Speaker 01:
I see I'm running low on time, so I would like to touch on the instructional error, too, very briefly.

[00:12:30] Speaker 01:
So the second issue is that it was plain error not to instruct the jury that the government had the burden

[00:12:36] Speaker 01:
to prove beyond a reasonable doubt that Mr. Merriam-Boy did not subjectively believe he was acting in self-defense.

[00:12:41] Speaker 01:
And it also erroneously instructed the jury that it could convict him of second degree murder, even if he acted and subjectively acted in self-defense.

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And those are plainly erroneous.

[00:12:53] Speaker 04:
Haven't we recently said that failure to give such an instruction when it's not requested is not plain error?

[00:12:59] Speaker 01:
Yes, Your Honor, if you're referring to Sago and that.

[00:13:03] Speaker 01:
You may disagree with Sago.

[00:13:05] Speaker 04:
I think we're stuck with it.

[00:13:07] Speaker 01:
How do you distinguish it?

[00:13:09] Speaker 01:
Because Sago, as Your Honor well knows, is there was no request for an imperfect self-defense instruction at all, and there was no lesser included offense instruction given.

[00:13:22] Speaker 01:
So Your Honor's main point there was that a district court's not on our obligation to sua sponte provide this theory of the defense instruction

[00:13:31] Speaker 01:
when it wasn't requested, and there is no involuntary manslaughter instruction given.

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But here, the lesser included offense than voluntary manslaughter was given.

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The elements of imperfect self-defense were provided to the jury in the instructions.

[00:13:43] Speaker 01:
The only thing that's missing is the government's burden to disprove it.

[00:13:48] Speaker 01:
Lofton.

[00:13:49] Speaker 04:
I think that's a reasonable distinction for Sago.

[00:13:51] Speaker 04:
Thank you.

[00:13:53] Speaker 04:
But is it plain?

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Is that obvious that that distinguishes Sago

[00:14:01] Speaker 04:
The second element of plain error is satisfied here.

[00:14:04] Speaker 01:
Yes, Your Honor, because this case is indistinguishable from Lofton.

[00:14:08] Speaker 01:
Lofton, the only difference there is, which I don't think is material, is that Lofton was a heat of passion defense.

[00:14:15] Speaker 01:
And here, we're talking about imperfect self-defense.

[00:14:18] Speaker 01:
There, the jury was instructed on the elements of a heat of passion defense.

[00:14:23] Speaker 01:
But those elements appeared only in the involuntary manslaughter instruction.

[00:14:27] Speaker 01:
And that's exactly what we have here.

[00:14:29] Speaker 01:
This court said that.

[00:14:31] Speaker 01:
that that's not enough, you have to instruct its plain error not to instruct the jury that it's the government's burden to disprove heat of passion.

[00:14:40] Speaker 01:
And compounding the error there, which is exactly what we have here, is that the structure of the instructions was such that the jury was never going to get to involuntary manslaughter to find the elements because they had to consider second degree murder first.

[00:14:55] Speaker 01:
I'd like to preserve 15 seconds of time for a bottle.

[00:15:00] Speaker 01:
Sorry.

[00:15:00] Speaker 01:
Thanks.

[00:15:03] Speaker 00:
May it please the court, Nathan Jack of the United States.

[00:15:06] Speaker 00:
Mary Boy killed Montwine.

[00:15:09] Speaker 00:
A trial for second degree murder, the jury heard two accounts.

[00:15:13] Speaker 00:
One from Ms.

[00:15:13] Speaker 00:
Green of a shot to the back of Mr. Montwine's head as he stood at the van door after having walked away.

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The other from Mr. Mary Boy of an accidental misfired warning shot as the two stood face to face across the truck bed.

[00:15:29] Speaker 00:
The evidence thoroughly corroborated Ms.

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Green's account.

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Mr. Maryboy's account, on the other hand, was so incompatible with the evidence that trial counsel was forced to abandon key aspects of his testimony below.

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Now on appeal, Mr. Maryboy asked his court to reverse his convictions based on two issues he did not raise below and on theories that he discarded.

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He cannot satisfy plain error on either one.

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His 704B claim fails for three reasons.

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First, recklessness was not at issue.

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as trial counsel abandoned key facts from Mr. Maryboy's testimony and conceded recklessness to the jury during closing argument.

[00:16:10] Speaker 04:
How do you say he conceded that when the defendant said, I didn't mean to kill him when I shot?

[00:16:22] Speaker 04:
Then the issue is, was he reckless?

[00:16:26] Speaker 00:
Yes, go ahead.

[00:16:27] Speaker 00:
So I encourage, if this court hasn't, to read

[00:16:30] Speaker 00:
defense counsel's closing arguments in the full to really get a sense of what the argument was.

[00:16:33] Speaker 00:
And we see around 1817, 1818 in the record that the defense counsel concedes, yes, Mr. Maryboy knew what the rules of gun safety were, but he ignored those rules of gun safety because he feared for his life.

[00:16:50] Speaker 00:
That's textbook ordinary recklessness, consciously disregarding

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a known risk.

[00:16:55] Speaker 00:
He told the jury that Mr. Mary Boyd consciously disregarded the known risk of the gun safety rules because he feared for his life.

[00:17:06] Speaker 04:
You seem to be making the instructional error more consequential when you approach it that way.

[00:17:16] Speaker 00:
And I'm not, if I could clarify it,

[00:17:20] Speaker 00:
There's the use of reckless here and many different senses.

[00:17:24] Speaker 00:
And my friend said that the difference between reckless and malice is a fine line.

[00:17:29] Speaker 00:
But I direct this court to its decision in Kepler and also the circus opinion in Janus, which this court agreed with in Kepler, when it says that malice of forethought is close to knowledge and a far cry from reckless.

[00:17:45] Speaker 00:
And I think the best evidence, this goes to whether the error was plain here, the best evidence that it's not clear

[00:17:50] Speaker 00:
or obvious that this was an error is in the jury instructions itself, where the court defined for the jury, malice of forethought in three ways, each of which requires the consciously directed use of force against a person.

[00:18:03] Speaker 00:
That it was deliberate.

[00:18:04] Speaker 02:
But the instructions also, as I recall, on the murder two and the definition of malice of forethought says wanton and reckless.

[00:18:14] Speaker 02:
And then

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The lesser included instruction on the voluntary manslaughter also says wanton and reckless.

[00:18:21] Speaker 02:
But then, correct me if I'm wrong on this, but the definition then goes on to distinguish the difference between malice aforethought and wanton and reckless and the lesser included in that it says for malice aforethought it must be extreme recklessness.

[00:18:37] Speaker 02:
So isn't that word kind of key here as it relates to the evidence itself because, you know, probably no accident.

[00:18:45] Speaker 02:
Agent Olson says that is extreme recklessness.

[00:18:47] Speaker 02:
Isn't that sort of zeroing in on the distinction between the lesser included and the murder too?

[00:18:53] Speaker 00:
So, Agent Olson never testified that it was extreme recklessness.

[00:18:57] Speaker 00:
Again, the prosecutor attempted to follow up.

[00:18:58] Speaker 00:
Well, how would you compare that statement

[00:19:00] Speaker 00:
with the treatment.

[00:19:01] Speaker 00:
There, the objection was sustained.

[00:19:03] Speaker 00:
But again, going back to the instructions, so yes, we get into that.

[00:19:07] Speaker 00:
But again, first, we define malice of forethought in three ways that require the consciously directed use of force against a person.

[00:19:13] Speaker 00:
So that is a critical component of malice of forethought.

[00:19:18] Speaker 00:
Agent Olson never testified of that critical component.

[00:19:22] Speaker 00:
Then we get to the language of it may be established by,

[00:19:28] Speaker 00:
evidence of conduct that is reckless and wanton, a gross deviation from a standard of care.

[00:19:32] Speaker 00:
But again, that itself is not the final conclusion.

[00:19:35] Speaker 00:
What matters is of such a nature that it can be reasonably inferred that the defendant was aware of a serious risk of death or serious bodily harm.

[00:19:44] Speaker 00:
So that's the final conclusion, again, this use of consciously directed use of force.

[00:19:50] Speaker 00:
So even if

[00:19:51] Speaker 00:
Agent Olson's testimony could be cast in the same language as this reckless and wanton gross deviation language, which I don't think it does.

[00:19:59] Speaker 00:
That still is not the final conclusion.

[00:20:02] Speaker 00:
As the jury instructions state, it is up to the jury.

[00:20:05] Speaker 04:
It's important to you because under the rule of evidence, it's only the final conclusion that the witness can't.

[00:20:12] Speaker 00:
Exactly.

[00:20:12] Speaker 00:
Diaz reiterates that it is only when the expert testifies that the defendant held the final conclusion of the mental state.

[00:20:22] Speaker 00:
And the jury specifically says, or sorry, the instructions specifically says, the jury, even if that language matches, which it doesn't, is still up to the jury to infer the defendant was aware of the risk of death.

[00:20:35] Speaker 04:
And you're also saying, as I understand, with respect to the third problem of plain error, that, or maybe you're saying this with respect to harmless error, that defense counsel in closing argument acknowledged

[00:20:53] Speaker 00:
Correct.

[00:20:55] Speaker 00:
Correct.

[00:20:56] Speaker 00:
So with or without Agent Olson's testimony, the result here would be unchanged.

[00:21:02] Speaker 00:
The prosecutor argued throughout trial that the evidence showed a deliberate shot.

[00:21:10] Speaker 00:
Mary Boy shot Mr. Montewine in the back of the head after he'd walked away.

[00:21:17] Speaker 00:
That is a deliberate shot.

[00:21:20] Speaker 03:
So what do you make of this language where Olson said it was at least cavalier, if not gross, grossly negligent, reckless to point a loaded weapon at another person?

[00:21:32] Speaker 03:
That's testimony, not a sustained objection.

[00:21:36] Speaker 00:
Correct.

[00:21:36] Speaker 00:
There's no objection there.

[00:21:37] Speaker 00:
In that testimony, he's not even saying that it is, in fact, grossly negligible.

[00:21:42] Speaker 00:
He says it's cavalier, if not, grossly negligible and reckless.

[00:21:45] Speaker 00:
But again, this is where he's talking about it in more of a colloquial sense.

[00:21:49] Speaker 00:
If you look at what he's actually talking about, he's talking about someone who is failing to follow a standard of care.

[00:21:55] Speaker 00:
What matters for malice aforethought is a consciously directed use of force against a person, and Agent Olson never testified to that critical component.

[00:22:04] Speaker 02:
Well, he also said, I know you, I think, corrected me to say he didn't testify about extreme recklessness, but he did say the ultimate expression of recklessness.

[00:22:12] Speaker 02:
So that seems to be beyond extreme recklessness, because if it's the ultimate, there's no degree of recklessness above it.

[00:22:18] Speaker 02:
So, I mean, I think you hear us struggling a little bit with trying to square your argument with saying, well, he's not really testifying about the element of mens rea because there are more components to malice of forethought.

[00:22:33] Speaker 02:
But is it sufficient if he hits one of them?

[00:22:36] Speaker 00:
Again, we're on plain error here.

[00:22:38] Speaker 00:
So the question is, is it clear or obvious?

[00:22:41] Speaker 00:
And again, no, because if there are several things that are required for Miles to forethought, one of them being the use of consciously directed force against a person, and Agent Olson never testifies about that, then he never gives the final conclusion of what Mary Boy's mental state was.

[00:22:58] Speaker 02:
I was also going to ask you about your argument about the closing argument of counsel, relinquishing or abandoning the theory of defense.

[00:23:06] Speaker 02:
And I think Judge Harts asked this, but how do we get to abandon it through closing argument when the evidence of the defendant himself differed maybe from what was argued?

[00:23:15] Speaker 02:
I mean, I think in your brief you cited cases that talked about you can't raise new issues on appeal if they're abandoned below, but not specific to this scenario.

[00:23:26] Speaker 02:
Do you have any cases that tell us

[00:23:27] Speaker 02:
In closing argument, what counsel says can abandon a theory that the defendant testified to?

[00:23:33] Speaker 00:
I mean, I think whether we call it waiver or whether we call it lack of prejudice, it's the same argument, essentially, in that recklessness was really taken out of dispute by abandoning the only theory on which recklessness matter, which was Mary Boy's account of a face-to-face shooting across the truck.

[00:23:52] Speaker 00:
And my friend says, oh, well, it's not

[00:23:54] Speaker 00:
inconsistent with a mis-fired warning defense, but it is inconsistent with Mary Boy's testimony.

[00:24:04] Speaker 00:
And that was the only theory of the mis-fired warning shot that the jury heard.

[00:24:08] Speaker 02:
So in other words, you're saying even if we don't conclude it was abandoned, it diminishes the prejudice that may have been suffered in the Plain Air analysis.

[00:24:16] Speaker 00:
Exactly.

[00:24:17] Speaker 00:
By counsels taking recklessness out of dispute, it essentially made

[00:24:21] Speaker 00:
Agent Olson's use of the word reckless completely meaningless.

[00:24:26] Speaker 04:
Or perhaps, even if it doesn't do that, it shows that defense counsel thought they really didn't have any defense on the recklessness aspect.

[00:24:36] Speaker 00:
Exactly.

[00:24:37] Speaker 00:
Exactly.

[00:24:37] Speaker 00:
And that's why I encourage this court to read closing arguments, where you see that's why there's this pivot to self-defense.

[00:24:44] Speaker 00:
And that really became the focal point.

[00:24:46] Speaker 00:
So that makes the instruction all the more important.

[00:24:48] Speaker 00:
So why don't you address the instruction

[00:24:51] Speaker 00:
Yes, on the imperfect self-defense instruction, again, we have three reasons why Mary Borey fails plaintiff review here.

[00:24:59] Speaker 00:
First, it was not requested.

[00:25:03] Speaker 00:
Second, he was not untied to it.

[00:25:05] Speaker 00:
And third, again, we have a lack of prejudice here.

[00:25:08] Speaker 00:
So as this court pointed out in Sago.

[00:25:12] Speaker 00:
Well, I think he distinguished Sago.

[00:25:16] Speaker 00:
But not plainly.

[00:25:17] Speaker 00:
And also, I think that the key difference here, or the key point here,

[00:25:21] Speaker 00:
is that an affirmative defense is a strategic decision.

[00:25:26] Speaker 00:
And that's why this court.

[00:25:27] Speaker 04:
Yeah, but that was important in Sago.

[00:25:31] Speaker 04:
It's hard to see how it's a strategic decision when the lesser included offense instruction is given.

[00:25:38] Speaker 04:
Because the tactical reason for not going into that issue is you want an all or non-verdict from the jury.

[00:25:48] Speaker 04:
You've already got the intermediate.

[00:25:53] Speaker 00:
That's true, but I think given that even my friend recognizes the unreasonableness of whatever alleged belief that he had, there's an argument to be made that including an imperfect self-defense just draws attention to that.

[00:26:09] Speaker 00:
And so you could see a reason why he may want to omit that altogether.

[00:26:13] Speaker 00:
But regardless, we're on plain error here.

[00:26:16] Speaker 00:
And so the question is, is it clear or obvious that Mr. Maryboy was entitled to an imperfect self-defense instruction?

[00:26:23] Speaker 00:
And the answer to that is no.

[00:26:26] Speaker 00:
We have no threatening gestures.

[00:26:29] Speaker 00:
We have no, you know, I again point to how this court described it in Sago.

[00:26:37] Speaker 00:
Recall there was no evidence that the victim was about to use deadly force against Mr. Sago.

[00:26:46] Speaker 00:
We have that here.

[00:26:48] Speaker 00:
What about the show me your hands part?

[00:26:52] Speaker 00:
So again, that doesn't mean that there was any threatening gesture that he was armed.

[00:27:00] Speaker 00:
And in fact, after he fired the first warning shot, again, Mr. Maryboy admitted, yeah, if he had a firearm, I would have suspected that he would have shown it by then.

[00:27:11] Speaker 00:
But even in Sago, the defendant testified, I thought that he was armed.

[00:27:18] Speaker 00:
That's why I fired.

[00:27:19] Speaker 00:
And still, that wasn't enough.

[00:27:21] Speaker 02:
Why couldn't we conclude that the circumstances themselves were threatening to Mr. Maryboy when he's just pulled over on the side of the road and all of a sudden this truck pulls up and a guy jumps out as he testified, was yelling and cussing at him.

[00:27:36] Speaker 02:
He doesn't even know this person.

[00:27:38] Speaker 02:
You know, we know from later evidence that the victim was extremely intoxicated, so one could assume he presented that way.

[00:27:45] Speaker 02:
Why weren't those circumstances threatening in and of themselves to Mr. Maryboy?

[00:27:49] Speaker 00:
The circumstance that we have here is a shot to the back of the head from some distance away after Mr. Montwine had walked away.

[00:27:56] Speaker 00:
That's the circumstances.

[00:27:57] Speaker 02:
And in case after case, which we notice in our brief, a shot to the back of the head under... He's not entitled in instruction because there were essentially no threat to him at all.

[00:28:06] Speaker 02:
There's no evidence that he felt imperiled.

[00:28:10] Speaker 02:
But I guess I'm asking, why can't we conclude that there is evidence there?

[00:28:14] Speaker 02:
And ultimately, I get your argument as to maybe why that defense would fail.

[00:28:18] Speaker 02:
But we're talking about whether he's entitled to the instruction.

[00:28:21] Speaker 00:
Yes.

[00:28:22] Speaker 00:
I think those circumstances are not enough, again, because there's no evidence that Mr. Marantuano is about to use physical force such that Mr. Maryboy had to resort to shooting him.

[00:28:34] Speaker 00:
So again, I turn this court's attention to Crow Ghost, in which the defendant testified that his girlfriend was headbutting him and grabbing knives

[00:28:44] Speaker 00:
and reaching for a gun, and there was a physical struggle.

[00:28:48] Speaker 00:
And despite all that, the court still found that he was not entitled to an imperfect self-defense instruction because... Didn't the party stipulate one?

[00:28:59] Speaker 03:
Sorry, what was that?

[00:28:59] Speaker 03:
Did the party stipulate to an imperfect self-defense instruction and the district court remodified them?

[00:29:09] Speaker 00:
So there was an initial set of joint stipulated instructions.

[00:29:12] Speaker 00:
And it included that.

[00:29:14] Speaker 00:
It included imperfect self-defense.

[00:29:15] Speaker 00:
But the government was clear that it believed that there wasn't going to be evidence of it.

[00:29:19] Speaker 00:
So it was to be given if there was evidence.

[00:29:21] Speaker 00:
But then we have the district court coming back.

[00:29:23] Speaker 00:
There was a mistrial on that one because of COVID.

[00:29:25] Speaker 00:
The district court had come back with its own set of instructions and said, these are what we're working from.

[00:29:30] Speaker 00:
And we have no objection there, no request for imperfect self-defense in that one.

[00:29:37] Speaker 00:
But again, turning back to Krogost, the court found one significant hurdle for Krogost is the undisputed forensic evidence that the victim was shot in the back of the head from some distance away.

[00:29:51] Speaker 00:
Stanton's stark contrast to his claim of how the gun was discharged.

[00:29:56] Speaker 00:
And so because of that, there was no entitlement to imperfect self-defense.

[00:30:02] Speaker 00:
And again, even if there were,

[00:30:04] Speaker 00:
Mr. Mondermine shot in the back of the head from some distance away, so there is no prejudice here, as multiple cases have found.

[00:30:10] Speaker 00:
I ask this court to affirm.

[00:30:13] Speaker 01:
We're trying to make two points.

[00:30:15] Speaker 01:
First, this idea that the jury would have to make this additional finding about consciously directed force at the victim.

[00:30:22] Speaker 01:
That's based on case law, not the actual instructions.

[00:30:25] Speaker 01:
The actual instructions distinguish the two different mens reas by saying that second remorse has to be recklessness that is extreme in nature.

[00:30:33] Speaker 01:
And that's all it says to distinguish the two.

[00:30:35] Speaker 01:
I realize that I'm out of time if the court has any further questions.

[00:30:38] Speaker 04:
You wouldn't make two points?

[00:30:40] Speaker 04:
You wouldn't make the second one, or did you just make two points?

[00:30:42] Speaker 01:
No, I didn't make the second one.

[00:30:43] Speaker 01:
I would love to.

[00:30:45] Speaker 01:
So the case that the government is relying on about the shot to the back of the head weren't even entitled to instructions, that's an out-of-circuit case that's contrary to this court's precedent about whether you're entitled to instructions.

[00:31:00] Speaker 01:
As I explained in the reply brief,

[00:31:01] Speaker 01:
And to distinguish Segoe once more, where this court found that there was no prejudice, that was in large part because the jury found that he was guilty of premeditated murder, which necessarily meant they rejected the defendant's actual theory of defense, which is that it wasn't premeditated because I feared for my life.

[00:31:22] Speaker 01:
So they clearly rejected any imperfect self-defense.

[00:31:25] Speaker 01:
Thank you, Your Honors.

[00:31:35] Speaker 04:
Thank you counsel.

[00:31:36] Speaker 04:
Case submitted.

[00:31:37] Speaker 04:
Council excused.