[00:00:00] Speaker 01:
I'll call the last case of the day.

[00:00:02] Speaker 01:
I'll call the last case of the day, 24-70-63, United States versus Saki.

[00:00:17] Speaker 04:
Is that about right?

[00:00:19] Speaker 01:
Yeah.

[00:00:19] Speaker 01:
Thank you.

[00:00:20] Speaker 04:
May it please the court.

[00:00:21] Speaker 04:
Stuart Sutherland from the Federal Public Defender's Office representing Mr. Saki in this case.

[00:00:27] Speaker 04:
Your honors, the district court correctly found that there was sufficient evidence in this case for the jury to find Mr. Saki guilty of the lesser included offense of voluntary manslaughter based upon evidence of bullying that occurred over years that culminated in the verbal attack that took place on September 8th, 2023.

[00:00:46] Speaker 04:
This case involved the killing of a man who was, for better or worse, in the position of a father figure to Mr. Saki, who bullied Mr. Saki for years telling him that he wasn't good enough, that he didn't belong, that he was worthless.

[00:01:01] Speaker 04:
However, over defense counsel's objection, the district court erroneously added an instruction, a second non-pattern instruction,

[00:01:12] Speaker 04:
that told the jury that Mr. Saki could not be convicted of voluntary manslaughter based upon mere words.

[00:01:18] Speaker 04:
And the statute doesn't really give us any indication that there should be such a limitation there.

[00:01:23] Speaker 04:
In fact, the statute's really not a particularly wordy statute.

[00:01:26] Speaker 04:
18 USC 1112A states only that voluntary manslaughter is the unlawful killing of a human being without malice and upon sudden quarrel or heat of passion.

[00:01:38] Speaker 04:
However, the pattern instruction does define in great detail exactly what that means.

[00:01:43] Speaker 04:
It defines heat of passion as passion, fear, or rage in which the defendant loses his normal self-control.

[00:01:50] Speaker 04:
And that's the key.

[00:01:52] Speaker 04:
As a result of circumstances that provoke such a passion in an ordinary person, but which do not justify the use of deadly force.

[00:01:59] Speaker 00:
Do you agree that the instruction that the district court ultimately gave, the words alone instruction, is consistent with what the Supreme Court said in Allen?

[00:02:10] Speaker 04:
The words are in Alan.

[00:02:11] Speaker 04:
The words are definitely in the Alan decision.

[00:02:14] Speaker 04:
Alan was not really a words alone case though.

[00:02:16] Speaker 04:
I mean Alan confused me frankly from time to time going through three different decisions describing the facts of the case, but essentially it seemed to be a self-defense case.

[00:02:27] Speaker 04:
There was a little bit of evidence that maybe a few days before the altercation there might have been some words exchanged.

[00:02:33] Speaker 04:
You know, there's just not enough facts in there, the way the case is written, to see whether or not that's really the gravamen of the case.

[00:02:39] Speaker 04:
Certainly that was part of the instruction that it gave.

[00:02:43] Speaker 03:
Well, you didn't proffer any instructions at all.

[00:02:47] Speaker 03:
Well, I don't know that that's true.

[00:02:49] Speaker 03:
The problem is that... Well, the problem, you know, it is true.

[00:02:51] Speaker 03:
You did not offer instructions of your own.

[00:02:56] Speaker 04:
Oh, nothing written.

[00:02:58] Speaker 04:
That's correct.

[00:02:58] Speaker 04:
Now, there was an off-the-record discussion of the instructions.

[00:03:02] Speaker 03:
Off-the-record doesn't count.

[00:03:03] Speaker 04:
But the instruction was made.

[00:03:05] Speaker 04:
The instruction was given.

[00:03:06] Speaker 04:
So we didn't request the instructions because the instruction was given.

[00:03:09] Speaker 04:
But that's true.

[00:03:10] Speaker 04:
We did not submit any instructions in writing.

[00:03:14] Speaker 04:
That's true.

[00:03:15] Speaker 03:
And your argument seems to be that words alone are sufficient.

[00:03:22] Speaker 03:
Is that correct?

[00:03:23] Speaker 03:
Well, I don't think that there's really that much dispute that words alone can be sufficient.

[00:03:27] Speaker 03:
Well, it's words alone coupled with something else.

[00:03:32] Speaker 03:
Your wife is an adulteress.

[00:03:36] Speaker 03:
Those words, those are not really words alone.

[00:03:41] Speaker 03:
There's other information that's put forth and that wasn't done here.

[00:03:47] Speaker 04:
No, exactly.

[00:03:48] Speaker 04:
I mean, you know, we've certainly come up with a number of sort of

[00:03:54] Speaker 04:
end runs around the fact that words can be enough.

[00:03:57] Speaker 03:
But not alone.

[00:03:58] Speaker 03:
The Supreme Court said they can't be alone.

[00:04:02] Speaker 04:
Because we're talking about informational words versus non-informational words.

[00:04:07] Speaker 03:
They called him chicken legs, right?

[00:04:09] Speaker 03:
Correct.

[00:04:09] Speaker 03:
And he got really mad at that.

[00:04:11] Speaker 03:
He did.

[00:04:12] Speaker 03:
Yeah.

[00:04:13] Speaker 03:
And if that is the only thing that was an issue as to why he stabbed this guy 20 times,

[00:04:24] Speaker 03:
because he was called chicken legs, that doesn't really seem like any additional information that would ameliorate what he did.

[00:04:38] Speaker 04:
Well, I don't know that there are Supreme Court decisions that make that kind of distinction between additional information, non-additional information.

[00:04:45] Speaker 04:
I think that the jury instruction, honestly, I do think that the words alone instruction does

[00:04:53] Speaker 04:
contravent the instruction that was given, which states that the jury was to consider all facts and circumstances preceding, surrounding, and following the killing, which tend to shed light upon the condition of the defendant's mind before and at the time of the killing.

[00:05:10] Speaker 03:
And you got the voluntary manslaughter instruction.

[00:05:13] Speaker 03:
And we did.

[00:05:14] Speaker 04:
And the judge definitely made the decision.

[00:05:16] Speaker 03:
And that was argued, I assume, to the jury.

[00:05:19] Speaker 04:
Correct.

[00:05:19] Speaker 04:
Yeah, I mean, that was the defense in this case.

[00:05:21] Speaker 04:
That was absolutely the defense in this case.

[00:05:23] Speaker 04:
There was no defense that it didn't happen.

[00:05:25] Speaker 04:
There was no defense that it was self-defense.

[00:05:28] Speaker 04:
There was no defense that the stabbing was justified.

[00:05:31] Speaker 04:
I mean, it was a voluntary manslaughter.

[00:05:33] Speaker 04:
It was a crime.

[00:05:34] Speaker 04:
It was a crime carrying 15 years in prison, unlike the characterization sometimes in arguments in this case that somehow just calling a person's name, that's not an excuse to kill them.

[00:05:46] Speaker 04:
Well, no, of course it's not an excuse to kill him.

[00:05:48] Speaker 04:
It's not a defense to killing someone.

[00:05:50] Speaker 01:
Is it possible to interpret the Allen case, if it applies, post statute, to be saying words alone in a single instance, essentially.

[00:06:06] Speaker 01:
For instance, in this case, had we only had a single reference to chicken legs, and that's what caused him to

[00:06:16] Speaker 01:
The evidence was that's what caused him to react.

[00:06:21] Speaker 01:
But in fact, we have evidence here of much more than that in the sense that it had been a long-term bullying, harassing, humiliating type situation.

[00:06:34] Speaker 01:
And I don't know if I'm understanding your argument correctly, but are you arguing that we have, in a sense, more than words alone, as that term might have been

[00:06:46] Speaker 01:
being discussed by the Supreme Court.

[00:06:48] Speaker 04:
And like I said, they really didn't discuss that, I don't think, in Allen, because I don't think it was really the gravamen of the case.

[00:06:55] Speaker 01:
But that does seem to be how the government is interpreting it.

[00:06:58] Speaker 01:
The words alone, anytime, anyhow, except in some rare circumstances involving men whose wives have been unfaithful, are not enough.

[00:07:07] Speaker 04:
And it's interesting.

[00:07:09] Speaker 01:
So I'm just wondering if that, I couldn't quite see if that was your argument, or if you're taking issue with how they read Allen, I guess.

[00:07:22] Speaker 04:
Yeah, and I apologize for not being clear.

[00:07:23] Speaker 04:
Of course, fundamentally, Allen didn't address the statute that we're dealing with right here, because the statute hadn't been enacted yet.

[00:07:31] Speaker 04:
So we didn't have any of that.

[00:07:33] Speaker 04:
In fact, I think Allen actually stands for the thing, I didn't realize this until after I'd read the case a couple of times, the Allen instruction.

[00:07:40] Speaker 04:
You know, that's honestly the legal doctrine that has survived the decades, I think, since Allen.

[00:07:46] Speaker 04:
It doesn't, the meaning of the words alone portion is somewhat questionable.

[00:07:53] Speaker 04:
I do think, I do think that, for example, there were others, I think, that were calling.

[00:07:59] Speaker 04:
him names this evening.

[00:08:01] Speaker 04:
Aaron Bolin, I think, was another person there who was using the word chicken legs, asked the decedent, you know, how do you say that in Choctaw?

[00:08:10] Speaker 04:
There was some, you know, this wasn't the only person that was calling him that name, but Aaron Bolin, it was the only time, apparently, that he had called him that name.

[00:08:19] Speaker 04:
In fact, he had just moved into the house.

[00:08:20] Speaker 01:
There was no history with him.

[00:08:21] Speaker 01:
I mean, I guess I'm a little confused because it seems to me your best argument is the one that the evidence

[00:08:28] Speaker 01:
showed, which is this was long-term bullying and harassment, and he was done with it, as he said to the victims.

[00:08:37] Speaker 04:
And that's the point that I'm making.

[00:08:39] Speaker 04:
I think that if he had killed Aaron Bolin that evening, we would have a different case.

[00:08:43] Speaker 04:
I think that if we were on appeal saying, for example, that the judge should have instructed on voluntary manslaughter and did not instruct on involuntary manslaughter

[00:08:55] Speaker 04:
say if Aaron Boland had been the victim, we wouldn't have had any of this other background on which to base.

[00:09:00] Speaker 00:
So just to follow up on that, the error here is subject to harmlessness review, right?

[00:09:08] Speaker 00:
You would agree?

[00:09:09] Speaker 04:
Yes.

[00:09:09] Speaker 00:
Okay.

[00:09:10] Speaker 00:
So if we were to conclude that the mirror, the words alone instruction

[00:09:19] Speaker 00:
is erroneous in the sense that it doesn't account for those sort of informational words as Judge Kelly was describing.

[00:09:26] Speaker 00:
And we were to conclude that.

[00:09:28] Speaker 00:
Even though it's consistent with Alan, it doesn't fully capture the state of the law.

[00:09:32] Speaker 00:
It's too narrow.

[00:09:38] Speaker 00:
that understanding, why should we conclude the error isn't harmless?

[00:09:43] Speaker 00:
So in other words, you would need to show, and I think this was your colloquy with Judge Moritz, you would need to show that there were facts that supported that you, with the law correctly understood, have the facts to support that understanding of the law in your case.

[00:09:59] Speaker 00:
And here, it would require something beyond

[00:10:03] Speaker 00:
name calling and demeaning statements, right?

[00:10:07] Speaker 00:
So even if the law is understood to be too narrow, words alone needs to be broader, has to account for informational words.

[00:10:14] Speaker 00:
Do you in this record have anything that would surmount harmless error review here?

[00:10:22] Speaker 04:
Well, I think that the instruction was so broad and so precise.

[00:10:27] Speaker 04:
And since we had no evidence of prior

[00:10:30] Speaker 04:
assaultive, combative, physical conduct, all we had were words, words alone over a very, very long period of time, over a year's period of time that we had in this case, which would in fact have supported a jury finding.

[00:10:48] Speaker 04:
I mean, we can look at cases.

[00:10:49] Speaker 04:
I mean, there are cases

[00:10:51] Speaker 04:
you know, because the words alone instruction isn't in the pattern instructions.

[00:10:55] Speaker 04:
We have cases, you know, such as Sarawap, I thought was an excellent example, where in fact I think the government conceded that the evidence of voluntary manslaughter was overwhelming.

[00:11:07] Speaker 04:
And this was a case involving, if you recall, a crying baby, a baby who was sick, a baby who had been crying for a couple of days, and a baby who suffered extreme traumatic injuries from being beaten.

[00:11:18] Speaker 04:
And the defense in that case actually was that it was an accident.

[00:11:22] Speaker 04:
I think he was looking for probably involuntary manslaughter at a maximum.

[00:11:26] Speaker 04:
But the jury convicted him of voluntary manslaughter.

[00:11:29] Speaker 04:
Because under the facts of that case, it was reasonable for the jury to conclude that this person could be acting under, and once again, I quote from the instructions,

[00:11:40] Speaker 04:
You know, the fact that he lost his normal self-control as a result of circumstances that provoked in such a passion in an ordinary person.

[00:11:49] Speaker 04:
Now, an ordinary person who he just called chicken legs one time, I concede that that would not be that kind of an ordinary person standard.

[00:11:57] Speaker 04:
But we have to take it in light of the person who is actually on trial.

[00:12:01] Speaker 03:
There are other cases involving, say, for example... Well, you had to take it because you didn't know it for one of your own.

[00:12:07] Speaker 03:
I'm sorry?

[00:12:08] Speaker 03:
I say you had to take it.

[00:12:09] Speaker 03:
because you had not requested an instruction of your own modeled after Siroop, for example?

[00:12:19] Speaker ?:
No.

[00:12:20] Speaker 04:
No, we simply stuck with the pattern instruction.

[00:12:22] Speaker 04:
That's what the judge gave.

[00:12:23] Speaker 04:
That's what we were happy with.

[00:12:24] Speaker 04:
Our objection, and we did object, of course, to the words alone instruction, because we felt like it essentially undermined the instruction that required the jury to consider everything, all the facts and circumstances.

[00:12:37] Speaker 03:
For example, that's just because- Well, no, it did not.

[00:12:39] Speaker 03:
negate the other instructions that were given, that they consider all the facts, but they were instructed that words alone are not sufficient, and that's true.

[00:12:52] Speaker 04:
But that's a fact that they weren't allowed to consider, the fact that this had been going on for years, that this was bullying, this was more than just, and for that matter, words that he used afterwards, you know, when he called 911 and he complained to the 911 person, this person needed help, I didn't mean to do it, come help this person.

[00:13:09] Speaker 04:
which also went to, I think, a state of mind and would go to negate malice.

[00:13:13] Speaker 04:
But once again, those were just words.

[00:13:15] Speaker 04:
So the jury was instructed that none of that was going to be relevant and could be used.

[00:13:22] Speaker 04:
There are other cases involving police officers.

[00:13:24] Speaker 04:
In fact, several of the cases cited by the government involve police officers where, for some reason, they seem to use the words alone restriction only in those cases.

[00:13:35] Speaker 04:
I've always called kind of the thick skin doctrine.

[00:13:38] Speaker 04:
that you can't call a police officer a name, you can't call him a pig, you can't use worse language than that, and then the police officer can get angry and kill you.

[00:13:46] Speaker 04:
So there are cases involving prison guards, Cobb, Velasquez, Slager, cited on page 18 of the government's brief that all

[00:13:56] Speaker 04:
you know, seem to limit that words alone instruction to police officers.

[00:14:00] Speaker 00:
Counsel, let me make sure I understand your answer to my question.

[00:14:04] Speaker 00:
Okay.

[00:14:04] Speaker 00:
If we agree with you that there was error in how the district court ultimately instructed the jury because the mere words or the words alone instruction is too narrow in that it doesn't capture informational words that could be sufficient provocation, what

[00:14:25] Speaker 00:
is the evidence in your case that would satisfy the law as properly instructed?

[00:14:34] Speaker 04:
If we're going to use this informational restriction, which I don't think is 10th Circuit case law, I don't even know if it's a Supreme Court case law, but it's something that cases have used, I will concede that these were not informational words.

[00:14:48] Speaker 04:
Okay.

[00:14:50] Speaker 04:
Also, Judge, I'd like you to look at the

[00:14:54] Speaker 04:
See, I'm using up all my time.

[00:14:55] Speaker 04:
If I can reserve what little I have left.

[00:14:57] Speaker 04:
Thank you.

[00:14:58] Speaker 01:
Certainly.

[00:15:02] Speaker 02:
May I proceed?

[00:15:03] Speaker 01:
Oh, I'm sorry.

[00:15:04] Speaker ?:
Go ahead.

[00:15:04] Speaker 02:
Yes.

[00:15:04] Speaker 02:
May it please the court, my name is Benjamin Traster, and I represent the United States.

[00:15:09] Speaker 02:
The words alone instruction that the district court gave at the conclusion of the evidence in this case was an accurate rendering of the law with respect to words alone.

[00:15:19] Speaker 02:
The court followed case law.

[00:15:22] Speaker 01:
We have a statute and the statute doesn't contain that language.

[00:15:25] Speaker 01:
So how do you get there?

[00:15:27] Speaker 01:
How do you get to the case law?

[00:15:28] Speaker 02:
Well, I mean, the statute is essentially, there are other cases, I think the Morris case that talks essentially about the fact that you don't jettison the common law when it comes to terms of art.

[00:15:39] Speaker 01:
And I think it's clear that he... Well, this wasn't definitional, though.

[00:15:42] Speaker 01:
I mean, your brief talks about this as though this was just inserting essentially a common law definition, but it's not a definition at all.

[00:15:49] Speaker 01:
It's telling the jury, oh, by the way, here's some things you can't, here's evidence you can't consider.

[00:15:57] Speaker 02:
I think that's correct.

[00:15:59] Speaker 01:
That's not definitional.

[00:16:00] Speaker 01:
That is limiting.

[00:16:02] Speaker 01:
The jury hears this evidence and is given the voluntary manslaughter instruction, and they hear this evidence, and then they're told, oh, but by the way, you can't consider this evidence.

[00:16:15] Speaker 01:
That's not a definition.

[00:16:17] Speaker 01:
That's something entirely different.

[00:16:21] Speaker 01:
And what case law can you provide to where we have

[00:16:24] Speaker 01:
have ever suggested that somehow this limitation on evidence, considering evidence,

[00:16:37] Speaker 01:
still somehow is relevant to this statute.

[00:16:40] Speaker 02:
I think that this is maybe a longer answer, but I think that there's a couple reasons why such an instruction in this case was appropriate.

[00:16:49] Speaker 02:
I think the court's right that this is a definitional instruction.

[00:16:53] Speaker 02:
It's essentially delimiting what the jury can decide when it comes to the fact that you have a defendant

[00:16:59] Speaker 01:
Can you point to a case where we've ever accepted at common law a delimitation of what the jury can consider as a definitional instruction?

[00:17:08] Speaker 01:
I didn't see any in the cases that you cited.

[00:17:11] Speaker 02:
Offhand, no.

[00:17:12] Speaker 02:
But what I would argue to the court is that

[00:17:15] Speaker 02:
Look, with respect to this question about mere words and how it operates with respect to voluntary manslaughter and second degree murder, counsel cited cases that the government cited in its brief, Slager, Velasquez.

[00:17:27] Speaker 02:
And the reason why those cases are so important is because in those cases, the district court was deciding a sentencing issue.

[00:17:35] Speaker 02:
But because it was a deprivation of civil rights under the color of law,

[00:17:40] Speaker 02:
there had to be a cross reference to what exactly the police officers did in those cases.

[00:17:45] Speaker 02:
In both of those cases, the district court had to go and decide whether or not it was meeting the definition of second degree murder or voluntary manslaughter.

[00:17:54] Speaker 02:
On appeal, the Fourth Circuit and the Second Circuit both said, you have to stick within the boundaries of whether or not mere words are a sufficient provocation.

[00:18:03] Speaker 02:
Even district courts who know the law, who can read Allen, who can go on to Westlaw and do the research,

[00:18:10] Speaker 02:
have to be narrowed and cabined in by the appellate courts.

[00:18:14] Speaker 01:
Is there an intense circuit case law cabining this statute in that way?

[00:18:21] Speaker 01:
Is there a single case where we've said Alan survives?

[00:18:27] Speaker 01:
And essentially we're going to read it into the statute.

[00:18:30] Speaker 01:
I do think that the Stills v. Dorsey case, it's a habeas petition from New Mexico, but this court does talk about that language, that mere words are not alone as a reading of... Not in this setting, not in this setting, whether you're actually going to give an instruction on the one hand telling the jury to consider voluntary manslaughter and on the other hand telling them, nevermind, because the evidence here is only

[00:18:53] Speaker 01:
words alone.

[00:18:54] Speaker 01:
And the prosecutor emphasized that in closing argument.

[00:18:57] Speaker 01:
Oh, by the way, you can't find voluntary manslaughter because we only have words alone here.

[00:19:02] Speaker 01:
And you're being instructed that way.

[00:19:04] Speaker 02:
I think that's true.

[00:19:05] Speaker 02:
But I would also submit to the court that the defense attorney during his closing argument essentially emphasized that words alone were sufficient.

[00:19:12] Speaker 02:
And I think counsel here even overstates what the record says.

[00:19:15] Speaker 02:
It's got to be this bullying over a long period of time.

[00:19:18] Speaker 02:
But again, that overstates the record.

[00:19:20] Speaker 02:
If you look at the record, the only witness that really talks about bullying over time is Renita Tubby, who says it didn't happen many times.

[00:19:29] Speaker 02:
She specifically says it didn't happen many times.

[00:19:32] Speaker 02:
They all engaged in trash talking.

[00:19:34] Speaker 02:
And so the other point I wanted to make in response to Your Honor's question about this definition is the fact that you had a unique kind of defendant here, where this definition had to essentially instruct the jury

[00:19:47] Speaker 02:
Because of the uniqueness of this defendant, you can't just go with words alone.

[00:19:52] Speaker 02:
And the uniqueness of this defendant was that he was intoxicated.

[00:19:56] Speaker 02:
The other witnesses there saw he was slurring his speech, knocking over chess pieces, and he was angry.

[00:20:02] Speaker 02:
Renita Tubby said when she purchased the knife that he used to kill Thurtis Tubby, you don't need that if you're going to be angry.

[00:20:10] Speaker 02:
This is an individual, even counsel.

[00:20:13] Speaker 01:
You're making a factual argument and the district court decided to give the voluntary manslaughter instruction over your strong objection.

[00:20:21] Speaker 01:
I think that's right.

[00:20:23] Speaker 01:
And so these are factual issues.

[00:20:25] Speaker 01:
The jury was entitled to consider all of that.

[00:20:27] Speaker 01:
His drunkenness, the past history that Renita testified to, the jury was entitled to consider all of that.

[00:20:34] Speaker 01:
But then it was told, nevermind, you can't consider this.

[00:20:38] Speaker 02:
The adequacy of the provocation is an objective test.

[00:20:41] Speaker 02:
According to the jury instruction, or not according to the jury instruction, but according to case law, it's that the circumstances have to be such that the response that's provoked, the passion that's provoked, is the passion of an ordinary person.

[00:20:53] Speaker 01:
And the Jack case, out of a ten... But you're arguing the sufficiency of the evidence, and that's not the issue before us.

[00:21:00] Speaker 02:
I'm arguing that on an objective test such as this, or an objective standard such as this, that the district court was within its rights to essentially put boundaries around what is a- To give an instruction and then take it away.

[00:21:11] Speaker 01:
No, I don't think that's what the- How did a district court not take it away with this instruction when everyone apparently agreed it was words alone here?

[00:21:19] Speaker 01:
And the district court said, all right, I'm going to give this instruction that you asked for after the voluntary manslaughter instruction was given over your objection.

[00:21:28] Speaker 01:
Sorry guys.

[00:21:32] Speaker 01:
What's that?

[00:21:33] Speaker 01:
An emergency alert.

[00:21:34] Speaker 01:
Sorry.

[00:21:34] Speaker 01:
I think you're probably all getting it too.

[00:21:37] Speaker 01:
You can turn it off.

[00:21:38] Speaker 03:
It's an emergency alert in Denver.

[00:21:41] Speaker 02:
I didn't do it.

[00:21:42] Speaker 01:
Sorry.

[00:21:45] Speaker 01:
I'll give you a little extra time for that.

[00:21:47] Speaker 01:
I can't remember where I was.

[00:21:50] Speaker 01:
Sorry.

[00:21:53] Speaker 01:
I guess I... My point is,

[00:21:55] Speaker 01:
It seemed to me that throughout your brief, you were really struggling.

[00:21:59] Speaker 01:
And you did actually argue this should never have been submitted to the jury.

[00:22:04] Speaker 01:
The voluntary manslaughter instructions should not have been given.

[00:22:07] Speaker 01:
And that may be true, but that's not our issue.

[00:22:10] Speaker 03:
Well, the subjective element was not removed from the jury's consideration.

[00:22:16] Speaker 02:
No.

[00:22:18] Speaker 02:
Judge Moritz, to respond, and I'm sorry, Judge Kelly, I'm not ignoring your question.

[00:22:22] Speaker 02:
The subjective element wasn't removed.

[00:22:24] Speaker 02:
The voluntary instruction should never have been given.

[00:22:28] Speaker 02:
And I can't stand here and exactly say why exactly the district court decided to give that.

[00:22:34] Speaker 02:
There's no record of why that instruction was given.

[00:22:37] Speaker 02:
We objected to it.

[00:22:38] Speaker 02:
But the point is that I think to try to explain perhaps what the district court was thinking, and I think that this may be appropriate, is that the theory of defense was that this was voluntary manslaughter.

[00:22:50] Speaker 02:
The jury instructions are decided before closing.

[00:22:53] Speaker 02:
And I think the district court was simply giving the defense an opportunity to make an argument outside of what this is objectively unreasonable.

[00:23:00] Speaker 02:
Say go into closing arguments and argue that this was mutual combat if you want.

[00:23:04] Speaker 02:
Maybe there's some scintilla of evidence about mutual combat.

[00:23:07] Speaker 02:
There was no discussion whatsoever about why they were going to give, why the court wanted to give voluntary manslaughter instruction.

[00:23:14] Speaker 02:
But it did.

[00:23:14] Speaker 02:
So it was just given the court, Sue Espante proposed it.

[00:23:17] Speaker 02:
We objected and the court said overruled done.

[00:23:21] Speaker 02:
So, so what we didn't have an opportunity to do was say there was no scintilla of evidence, but I think the district court could have been saying, go ahead and argue it.

[00:23:28] Speaker 02:
Try to make that argument.

[00:23:29] Speaker 02:
But what you can't do is argue what is out of bounds.

[00:23:32] Speaker 02:
If it's out of bounds for district courts on these sentencing issues, it has to be out of bounds for a jury.

[00:23:38] Speaker 02:
When clearly the defense is going to stand in closing arguments and say, words alone, bullying over a long period of time, chicken legs and crybaby are enough.

[00:23:47] Speaker 02:
But the defense conceded that the defendant in this case is different.

[00:23:51] Speaker 02:
He said, look at his mugshot.

[00:23:53] Speaker 02:
He said, he's, he's literally in closing arguments.

[00:23:55] Speaker 02:
He said, look at his mugshot.

[00:23:56] Speaker 02:
He's different.

[00:23:57] Speaker 02:
He's in a feminine ballerina pose.

[00:23:59] Speaker 02:
He was particularly susceptible to being teased.

[00:24:03] Speaker 02:
That is not sufficient.

[00:24:05] Speaker 01:
To that is not a sufficient under an or for an ordinary person susceptible to being teased makes it makes it okay, huh?

[00:24:12] Speaker 02:
It doesn't make it okay for him to respond in the way that he did well

[00:24:16] Speaker 01:
Is it any different than a battered wife syndrome type case?

[00:24:20] Speaker 02:
I think it's very different.

[00:24:21] Speaker 02:
I mean, again, this isn't what counsel has argued that this is three years' worth of every single day.

[00:24:28] Speaker 02:
The only testimony you really have is that, first of all, the trash talking, which is what it was called, was mutual and back and forth, and that it didn't happen many times.

[00:24:38] Speaker 02:
It happened periodically.

[00:24:40] Speaker 02:
And I don't want to stand up here and minimize.

[00:24:43] Speaker 02:
I don't condone

[00:24:44] Speaker 02:
bullying, and I don't condone this sort of behavior, but at the same time, on the record in front of us, whether this is coming from Alan and informing over time what constitutes an adequate provocation.

[00:24:58] Speaker 02:
What constitutes an adequate provocation is based on an objective test.

[00:25:02] Speaker 02:
It's based on how an ordinary person who is not intoxicated, who is not susceptible to anger, who is not different, whatever that means, how an ordinary person would respond.

[00:25:13] Speaker 02:
And an ordinary person

[00:25:14] Speaker 02:
when being teased and called Chicken Legs and Cry Baby, would not go into the room, get a knife, wait two minutes, five minutes, 10 minutes,

[00:25:25] Speaker 02:
Come on out and make a beeline for one person's throat.

[00:25:29] Speaker 01:
But why couldn't the jury, and perhaps they did, why couldn't the jury make that determination on their own based on the instruction that was given?

[00:25:37] Speaker 01:
Well, I will submit to the court that I want to make... If what you're saying, and I think it is, is the evidence simply wasn't sufficient for the voluntary manslaughter instruction, and whether we agree or disagree doesn't really matter, the jury could have figured that out on their own.

[00:25:50] Speaker 01:
And I think they did.

[00:25:51] Speaker 02:
And I think the best explanation for that is the fact that the jury convicted him of first degree murder.

[00:25:56] Speaker 02:
And I would submit to the court that the fact that the jury had defined beyond a reasonable doubt that the defendant was convicted, I'm sorry, that the defendant premeditated the murder is wholly irreconcilable with the notion of, as counsel concedes,

[00:26:11] Speaker 02:
sudden provocation.

[00:26:13] Speaker 02:
It can't be provocation over three years.

[00:26:15] Speaker 02:
There has to be a trigger and it has to be sudden.

[00:26:18] Speaker 00:
Do you agree that the instruction on its face does not correctly state the law?

[00:26:23] Speaker 00:
It doesn't account for informational words, which Jack is unpublished, but it seems to accurately describe the state of the law.

[00:26:33] Speaker 02:
I think that's correct.

[00:26:34] Speaker 02:
I don't know if that's a concession as much as that's simply

[00:26:39] Speaker 02:
you know, we are sort of talking semantics as to whether or not informational words, what, what, how, how capacious the word words is.

[00:26:50] Speaker 02:
Um, but I, but I, sure.

[00:26:51] Speaker 02:
I mean, in this case, as I proposed in, in, in, in the brief that there, there'd be, maybe there'd be no problem.

[00:26:59] Speaker 02:
Maybe there'd be no error if what it said is name calling and insults, um, do not qualify as an adequate provocation.

[00:27:05] Speaker 02:
And if that's the case, then for this particular defendant,

[00:27:09] Speaker 02:
The words alone instruction is both not error and it's harmless because for this defendant, name calling and insults is all that he had.

[00:27:17] Speaker 02:
There is no evidence in the record at all that there was any sort of provocation, physical provocation, informational provocation at all, ever.

[00:27:26] Speaker 02:
It's all about crybaby and chicken legs.

[00:27:29] Speaker 01:
Well, the Jack case is unpublished and as far as I could see, it doesn't even, it doesn't address this issue.

[00:27:35] Speaker 01:
It has a stray comment in it.

[00:27:37] Speaker 01:
there's nothing about Jack that addressed this issue or made some clear finding that, especially that this would need to be an instruction.

[00:27:45] Speaker 01:
There's just nothing in Jack to that effect.

[00:27:48] Speaker 01:
And so we really don't have any 10th Circuit case law on this whole informational aspect of it.

[00:27:57] Speaker 02:
I think that the better case to look at

[00:27:59] Speaker 02:
And of course, I think this may not be sufficient for your honor, but I think the best case to look at is the Scaife case.

[00:28:07] Speaker 02:
I think in a microcosm, obviously there are some differences in Scaife, but the fact is actually in the Scaife case, there's a threat to the defendant's life in that case, which doesn't exist in this case.

[00:28:18] Speaker 02:
In the Scaife case, these are

[00:28:20] Speaker 02:
prisoners and one is threatening the other.

[00:28:22] Speaker 02:
Sure, the premeditation is over.

[00:28:26] Speaker 01:
We don't have the instruction in this case.

[00:28:29] Speaker 01:
That's my point.

[00:28:30] Speaker 01:
We have never talked about whether this 1896 case

[00:28:35] Speaker 01:
is still valid with respect to this statute, whether instruction is needed, whether the jury should be told words alone or not enough, or whether they can figure that on their own.

[00:28:47] Speaker 01:
We don't have anything.

[00:28:48] Speaker 01:
Are you aware of any other circuits?

[00:28:51] Speaker 01:
Sorry.

[00:28:52] Speaker 02:
Yeah.

[00:28:53] Speaker 02:
Yeah, I think the Fourth Circuit and the Second Circuit in the sentencing context.

[00:28:58] Speaker 00:
Sorry, I didn't mean to interrupt my colleague here, but my question was whether you're aware of any other jury instructions from other circuits that use Allen.

[00:29:08] Speaker 02:
For words alone are not sufficient.

[00:29:12] Speaker 02:
Not that I'm aware of.

[00:29:14] Speaker 02:
But again, we're talking about, I mean, first of all, I think I would suggest that I would at least hope

[00:29:20] Speaker 02:
that the circumstances, and I think this shows what an outlier in terms of provocation this is, I would hope that there aren't an excess of murders or an excess of people dying because they're being called names.

[00:29:33] Speaker 02:
I mean, there's really, as a policy matter, I would suggest that there's a difficult limiting principle here, which is how far away do you need to be to get upset by somebody who's bullying you and calling you names?

[00:29:46] Speaker 02:
If I'm down the street and somebody's calling me a name that I don't like, does that entitle, and does it over time?

[00:29:51] Speaker 02:
Does that entitle me to go get a knife?

[00:29:54] Speaker 01:
That's not our circumstance here.

[00:29:55] Speaker 01:
And that's not, we're not talking about sufficiency of the evidence, unfortunately.

[00:30:00] Speaker 01:
But again, I don't think it's- We're talking about a jury instruction that affirmatively told the jury what it couldn't consider.

[00:30:07] Speaker 02:
And I don't think that's a question of sufficiency of the evidence.

[00:30:09] Speaker 02:
I think that's a question of the district court defining the objective circumstances.

[00:30:14] Speaker 02:
And I see I'm basically out of time.

[00:30:15] Speaker 02:
We would ask the court to affirm the conviction.

[00:30:17] Speaker 01:
Thank you.

[00:30:19] Speaker 01:
You had a little bit of time.

[00:30:23] Speaker 01:
Okay.

[00:30:24] Speaker 04:
In 11 seconds, I would just ask this court, please to read the Lofton decision at 776F2-918.

[00:30:29] Speaker 04:
It is a words alone case.

[00:30:32] Speaker 04:
And I know that there were some sexual matters involved, but at the time of the shooting, it was words alone.

[00:30:40] Speaker 04:
And that's my time.

[00:30:41] Speaker 04:
Thank you.

[00:30:41] Speaker 01:
All right.

[00:30:42] Speaker 01:
Thank you.

[00:30:42] Speaker 01:
Thank you both.

[00:30:43] Speaker 01:
Thank you both very much for your very helpful arguments.

[00:30:45] Speaker 01:
We appreciate it.

[00:30:47] Speaker 01:
The case will be submitted and counsel are excused.

[00:30:50] Speaker 01:
And the court will be in recess until tomorrow morning at 830.