Legal Case Summary

Good morning, Mayor Police, the Court. My name is Cameron Blazer and I represent Saul Ramirez Castillo. I was appointed to represent him on appeal after leaving the Federal Public Defender's Office, wherever I represented him at the trial court. And so, you know, it's the dream of every appellate lawyer to have a case that is at trial clearly reversible. That dream becomes a nightmare when you're the trial council below. And some of the reason that the case needs to be remanded and retried is because of error on your part. So I'm here with sort of a dream nightmare scenario before the court. All right. As you know, there are a patchwork of issues present in this case, all of which have to sort of come together to build the quilt that covers me such that I can persuade the court to send the case back to Judge Blot. I'd like to start with the one that I think is the most unusual. And that is the rule 31 issue. These would be the special verdict form and whether we even got a verdict in this case. As this court is aware, it was... You asked for it, didn't you? Yes, sir. I certainly did. And I noted that in... You know, did you ask for it, didn't you? We got a special verdict form. Yes, sir, we did. And as I noted in, I believe footnote one of my opening brief, we do not contest that it was improper to use a special verdict form. It was not improper. Did you say... Nothing wrong with the verdict form. No, sir. There's nothing wrong with a special verdict form

. There's nothing wrong with using special interrogatories. And I would suggest that in light of recent Supreme Court precedent, like aligned, we're going to see more and more and more of these. And that's one reason that it's really important for this court to set forth what the proper parameters are when a special jury verdict form is used. Does it answer any of the questions indicate guilt or innocence? The answering of those questions clearly indicates that the jury found facts that the judge could use to make a finding of law as to guilt. And that's exactly what the judge said he would do prior to issuing his jury instructions. Did a parent wave his right to a jury trial? No, your honor. And... You want us to send it back and just get Judge Black to say, you are guilty. That's a good question. And then give me the same sentence. That's the end of it. No, your honor, because as I said, I think there are a number of other issues. On this issue. On this issue. If this were the only issue... Even if it's not done, on this issue, which is your argument, is because you're saying, this needs to go back into Judge Black's courtroom for him to say, the jury has now reached some findings in this case and they all are not in your favor, you are guilty. And I'm now going to give you the identical sentence you just had. It may seem silly, but yes. And here's what I'm going to say. That's what you asked. You're going to concede that? I don't you want a jury trial? Well, I do want a jury trial, but I'm not going to... You're going to have a jury trial? We did, but I'm not going to be disingenuous with the court and suggest that the jury didn't deliberate and the jury didn't answer some questions. The jury didn't deliberate on all the elements and find him guilty or not

. That's absolutely true. I would submit that there were serious issues with the substance of the special interrogatories if those are the... Because they do not represent the only issues that the jury had to concede. That's why I sound puzzled that you answered Judge Wins' question and all it is is just for Judge... The district court judge to go back and say the verdict. No, you had a jury trial and the jury has to do that. And it has not done so I thought that was your argument. Well, it certainly is. I simply don't want to be disingenuous with the court. I don't think you've been disingenuous. I thought you were saying that you wanted a jury and the jury had to make a general finding of guilt and it did not. I do think so. So if it has not and we agree with you, you would want... I don't think just the judge is going back and say, oh, well, the jury found it and now I'm going to find it now. No, I certainly wouldn't want that. You suggested that your answer. And I understand your honor and I think my miscommunication is that I don't want to... You didn't miscommunicate. That's what you asked us to do. That's what you said. You said the judge did not say you were guilty

. Right? You didn't say anything about you wanted a jury trial to say that he's guilty. So you didn't miscommunicate it. You invited that error. That's the way you set this up and agreed. You say, jurors are okay to answer these questions right here. And then at the end of it, the judge was simply saying, that's a not, you're guilty. Isn't that what you just argued? Yes, Your Honor. There it is, think about you wanted to go back to the jury and hear the jury say he was guilty. Well, except in so far as the juries, the questions that were asked of the jury were insufficient. Exactly what you asked for. No, Your Honor, they were not what I asked. You were an ass-winning else. I asked the judge to... I will read to those. Your Honor, I asked the judge to make specific instructions with regard to specific intent as to item number one. And I asked him to confirm the issue with regard to constructive possession as regards item number two. And... I'm assuming that you entitled to a specific intent. Absolutely, and that's an issue of law for this Court to determine. That'll be determined in the other issue there. So if that goes by the wayside, then that's nothing. Well, I have to make both arguments because as you note, if I lose on one, I've still got the other that I've got to deal with. I do believe that there is an argument as to item number two, vis-a-vis the prohibition on..

. impeachment questioning of the government's witnesses that addresses item number two as well. But if I could just go back because I think... The Court is correct that as counsel for Mr. Ramirez Castillo, it is clear from the record that the judge says, so we'll ask them these two questions, and then depending on their answers to those questions, I will find as a matter of law. And that is proper, that can be done. The problem now... You beat yourself up on it. You need to look at what... Maybe we need to go to other issues in the case. I mean, your client has two items in this pocket. He's a prison. He has two... He has two... He has two... Well, as to number one..

. The other side says, no, you don't need specific intent. You're in prison with a shop office in your pocket. You say if anybody were to attack me, I'd use the defend myself. That's good enough. As to item number one, our argument is that there is a specific intent requirement, and the government disagrees with us about that. As to item number two, that was not on Mr. Ramirez Castillo's person at all. That was completely separate back in his dorm, and was discovered after the pat down that led to the discovery of item number one. But if the court would like me to address the issue of the specific intent argument, the... What is item number one? Item number one was found on Mr. Ramirez Castillo's... Sure. It looks like about a three and a half inch pencil, broken off pencil, and where the lead ought to be, there's a piece of metal that comes out of it that's sharpened to a point, and that piece of metal is lashed to the pencil with some string, and it probably is lashed at about an inch deep into the pencil shank. So, it stands to reason that the person who pated him down and pulled it off of him thought, looks like a weapon to me, and that was never challenged. A prisoner's allowed to carry those kind of things. Nope, and your honor? He clearly has contraband, and throughout the dependency of the case, before trial, during trial, he always conceded that what he had was contraband. Always, under A2, he always conceded that he was not entitled to possess this item, irrespective of its purpose. Well, you know, the 1791 calls it anything that threatens the order and security of the peaceful management of a bureau of... The gun would be called contraband. A gun is certainly a weapon, and it is a specifically itemized piece of contraband under the statute that falls under, I believe, D1E maybe. The government's contention is that Mr. Ramirez Castillo's tool, which is what we called it throughout the trial, because that's what the evidence suggested he had it for. And frankly, I wouldn't have believed it if I hadn't seen it with my own two eyes

. The government's contention is that it falls under D1B, which is the five-year cap for possession of a weapon, or item intended or possessed as a weapon. And the indictment, in the case, lists possession of contraband to whip a homemade weapon. And our argument all along has been that for a homemade item to qualify as a weapon, it must have been intended as a weapon, and there's extensive evidence on the record that item number one was not intended as a weapon. Let's parse that out. Let's cut across the field in your argument. The statute says it can be a weapon or something, right? Yes. That's in a disjunctive. Yes. Does it make a distinction between weapons and a homemade or weapons that were factory made? No. What do you get this additional element of specific intent just because you add homemade to weapon? I get it from US versus Rodriguez, the case out of the seventh circuit, I believe, that indicate that... It's the finished product that defines it, not what your intent is. I don't care. If you're intent with the bill of spaceship, but you came up with a weapon, it's a weapon. But the statute uses the word intended as a weapon. So I think that, as Rodriguez says, transmutes the statute into a specific intent statute with regard to those items which could be more than one thing. I mean, the fact is that a pencil can be used as a weapon. It doesn't become a weapon until it's intended as a weapon. Exactly. But the homemade aspect of it, you know, that, I don't know, that I think that's rather subperfeless to put that in. But that's up to the government, turns out, right there, charges. But I don't think that adds to a specific intent as a weapon, right? And it's in the fabrication. If you fabricate a weapon, what difference does it make in terms of intent would go to what the... Well, we have..

. If you describe it, that's pretty clear a weapon, isn't it? But it's not clearly a weapon based on the evidence provided at trial. That this gentleman was using this item as a tool to poke holes. It was an all. He was using the tool to poke holes in the souls of shoes and then lash the tops of shoes to the bottoms of shoes. It's the most absurd argument in the world except that it happens to be true. And it happened to be presented to the jury with physical evidence that was provided on the morning of trial by the Bureau of Presence to Mr. Ramirez Castillo. And you're relying on Rodriguez for your position, is that the case? Yes, you're wrong. Okay, well, in Rodriguez, the defendant there was actually charged with possession of, quote, an object designer intended to be used as a weapon. That's right. Here, the defendant was not charged in that manner. Isn't that a fatal flaw in your argument? No, your honor, because again, I think that the use of the term hand made takes this out of the... You know, it's not a gun, it's not a knife, it's not a sling shot, it's not an item that has no purpose other than as a weapon. Home made, clearly, when one makes a thing at home, one makes it with an intention, one makes it with a purpose. And if the purpose of this item was to... As mind-boggling as it may seem to cobble shoes, then that is the thing that it is. It is an all. It could become a weapon undoubtedly. And Mr. Bianchi asked the defendant on the stand. If you were attacked, couldn't you have used this as a weapon? And he says, yes, I could. But that is a thing that didn't happen. The argument would be the logical extent of your argument is if you're in prison, if you work somewhere in sheep metal section, if you could get a 12-inch, thin piece of sheep metal and make it into just like a knife and find a piece of wood and stick it in there. You have a 12-inch knife and you say, oh, no, no, no, no, that's home made. You know, it looks like a knife, acts like a knife

. No. Because it's home made, now I got it. Then if you come up with, what do I use this to pick things up while I'm working? In other words, there's no proof? No, because I think that the judge could have found that this was a weapon as a matter of law. He declined to do that. The judge gave an instruction about what the definition of a weapon is. The weapon is a weapon because of what it's intended to be created as. And the government would have no trouble if there was a 12-inch knife as you describe it, made home made. It still would, I think, be very easy for the government to prove that it was intended as a weapon. But it's home made. But how would it be? Excuse what they're using for. Well, and perhaps the record evidence would support that set of facts. I think it's unlikely in a prison. And I frankly think that my argument was unlikely. I didn't believe my client for over a year and then I got on the morning of trial. I got the shoes that had the holes and had the things sewn together. And that's where we found it. I see that my time is up. I don't know if I've satisfied your question. No, I think it. Any further questions? No further questions. You reserve some time. Yes. When you come back, I do want you to discuss Rodriguez a little bit more because it seems like Rodriguez. Basically, you had both of the alternatives under the statute presented. And the court says it couldn't tell which. Here you only have the possession set for an adjure specifically found that alternative. So I'm trying to determine how Rodriguez is applicable to this case. Okay. Mr

. Bioske. Thank you. I want to make please the court judge. When, judge Gregory, Judge Stacker. My name is Nick Bianchi. I'm here on behalf of the United States government. And there's two points I'd like to make. The first is with regard to the verdict that was entered in the special verdict form, that all parties had a complete understanding going into deliberations. What each answer on that verdict form meant in terms of the guilt or not guilty. I wouldn't go as far as innocence. The parties did, but the jury did not. Were there any stipulations read to the jury? It's sufficient to meet all four elements of the crimes charged. There were not your honor. I would say obviously every element that was in there was conceded by both sides in the courts and instructions to the jury. The court covered every element the government must prove. The jury didn't come back with any questions about those elements. So the judge and his instructions to them did provide every element that the government must prove. The court also, in a few other spots, in instructions, in instructions. Those instructions will lead them to a deliberation and a finding of guilt at some point. Correct. You were agreed, though, that special verdict only gave a factual conclusion as to one element. One separate element as to each exhibit those being the only contested elements in this case. So you're still lacking a finding as to the whole, as they say, the Gestalt that is taken as even if you say stipulated plus the found one. They have to make a general verdict on the finding of guilt, don't they? They do your honor in terms of rule 31. And again, the district court gave them those elements. We think we presented evidence as to each of those elements during the question. The district court explained in the instructions to the jury, you said the elements two of the elements weren't contested. Where is that in the evidence for the jury? Well, it comes from the trial. The first element is that he was an inmate at a federal credit correctional institute

. That obviously came out at trial and was never contested by the defense. The second element being that he possessed a prohibited object, specifically a weapon, that was an issue with the exhibit two, the one that was at the locker. That was put out there and I don't think there's any issue as there's no debate over whether his instruction on actual verse constructive possession was proper. So this took this out of the province of the jury, you were saying those elements. See, I'm having some difficulty. I'm following Judge Gregor and Judge Stacken's questions. You know, there's something wrong here, but I can't quite, I'm getting there. When you enter a not guilty plea, every element is in contest and the burden is owned the government to prove it beyond a reasonable doubt. If the other side concedes it, that gives evidence upon which the jury can then consider or the court to probably direct. I direct you to find this element that this is there, but just like a civil case, a propoundum case of a will, you can get up and say, yeah, it's everybody can agree. But in the old days, you had to go ahead and say it. I think in a criminal case, I'm getting to believe that jury has to at least say yes to the elements, even if the other side says it. Don't you think so? I mean, in a criminal case, doesn't the jury, you can't take it from the jury. Can't it? The final five. No, you cannot. So those I can get up and say, I'm guilty as daylight and jury could still come back and say not guilty. Absolutely. jury would still go back and look at the elements as charged by the district court and go through those and make sure that all of those have been met. Unless the court instructs the jury that you are instructed to find that this element here has been satisfied. Correct. And that was not done, was it? I don't believe that was done in the judge's plots and structs in your honor. Is there a problem there? It creates a problem. But I think, and again, obviously going back, we would have done this a lot differently. The appellant, the appellant initially brought up the subject of a special verdict form, the government actually owned page 74 of the J.A. Suggested that the verdict form say it should say guilty or not guilty as to exhibit one. And then guilty or not guilty as to exhibit two. That's what the jury is supposed to find. Right. The defendant has not waved his right to a jury. Correct. The district court then gave a response as to what it was going to do. And then when he said, quote, does that suit you, Ms. Blazer? The answer was, that would be just fine, your honor. So, again, it wasn't done the way we would have liked it to be done. I think both parties wish we could go back and change it. Although that would already be. Waved a constitution in the rules and the jury system required it to be done. Correct. So what? You're on I think I think I think. I think the government in joining, why isn't the government joining this argument to say it should go back because it has to do. I think if you look at the verdict, the question becomes, does it shock the conscious or is it agreed just enough or do it? That's not the standard. I had to shock the conscious at all. I mean, the Supreme Court says in Galdon, the constitution gives a criminal defendant the right to have a jury determined beyond a reasonable doubt his guilt of every element of the crime with which he is charged. Correct. And that didn't happen here, didn't it? Every element was given to the jury. The words guilty and not guilty were not on the verdict form. Which is required. Which is. I think about this. Yes, Your Honor. If a defendant stands up in the court and says, Your Honor, I plead guilty. You can't just walk out. He then has to make findings on the record of the nature of the plea, you got to find his providence. Even when he says I'm guilty. And what you're saying is he's saying these elements are satisfied doing trouble. And no inquiry has been made as to, well, are you certain you want to say this is satisfied or you? This is done. None of that happens

. The defendant has not waved his right to a jury. Correct. The district court then gave a response as to what it was going to do. And then when he said, quote, does that suit you, Ms. Blazer? The answer was, that would be just fine, your honor. So, again, it wasn't done the way we would have liked it to be done. I think both parties wish we could go back and change it. Although that would already be. Waved a constitution in the rules and the jury system required it to be done. Correct. So what? You're on I think I think I think. I think the government in joining, why isn't the government joining this argument to say it should go back because it has to do. I think if you look at the verdict, the question becomes, does it shock the conscious or is it agreed just enough or do it? That's not the standard. I had to shock the conscious at all. I mean, the Supreme Court says in Galdon, the constitution gives a criminal defendant the right to have a jury determined beyond a reasonable doubt his guilt of every element of the crime with which he is charged. Correct. And that didn't happen here, didn't it? Every element was given to the jury. The words guilty and not guilty were not on the verdict form. Which is required. Which is. I think about this. Yes, Your Honor. If a defendant stands up in the court and says, Your Honor, I plead guilty. You can't just walk out. He then has to make findings on the record of the nature of the plea, you got to find his providence. Even when he says I'm guilty. And what you're saying is he's saying these elements are satisfied doing trouble. And no inquiry has been made as to, well, are you certain you want to say this is satisfied or you? This is done. None of that happens. And I'm just saying in terms of what's going on here. Of course, at all is satisfied if you just have the jury to do what you're supposed to do. This is, you're only happy to do the elements. You say guilty, not guilty. Correct. That would have been it. That's what you wanted. And I understand you are against for it, but you didn't get it. So then the question that comes to my mind does invite an error apply to a criminal case. Our position is that it does, Your Honor. And what is, what, give me something to go with that other than just your position. Your Honor, I apologize. You know, we did cite both United States versus Jackson and United States versus Les Pier, which is a 2013 case. And what we cited Les Pier forwards, it recognized an invited error would seriously undermine confidence in the integrity of the courts. So we think invited error, there is a history has been applied in the criminal context. All things in question, invited error can apply in a criminal context, but the problem is this. This is an invited error. The court said that's what they're going to do. And the defense said, okay, they didn't invite it. The court, Suisponte came up with this. So it can't invite means exactly what it is. I invited this concept, I broached it, I insisted, I urged. Yeah, no, I just capitulated to the court, Suisponte suggested. And what you did was you allowed yourself to be talked out of, not, on the whether you or not, but you allowed yourself to be talked out of what was absolutely required. That is a finding of guilt. And when you allowed yourself to be talked out of it, you got to live with that. And defense counsel said, okay, Judge, if that's your grand idea, I'll go with it. But that's not inviting it, it's just conceding. I understand it would be a clear case of it, invited error if a pellet had proposed the jury verdict form itself and said, Judge, let's use this form

. And I'm just saying in terms of what's going on here. Of course, at all is satisfied if you just have the jury to do what you're supposed to do. This is, you're only happy to do the elements. You say guilty, not guilty. Correct. That would have been it. That's what you wanted. And I understand you are against for it, but you didn't get it. So then the question that comes to my mind does invite an error apply to a criminal case. Our position is that it does, Your Honor. And what is, what, give me something to go with that other than just your position. Your Honor, I apologize. You know, we did cite both United States versus Jackson and United States versus Les Pier, which is a 2013 case. And what we cited Les Pier forwards, it recognized an invited error would seriously undermine confidence in the integrity of the courts. So we think invited error, there is a history has been applied in the criminal context. All things in question, invited error can apply in a criminal context, but the problem is this. This is an invited error. The court said that's what they're going to do. And the defense said, okay, they didn't invite it. The court, Suisponte came up with this. So it can't invite means exactly what it is. I invited this concept, I broached it, I insisted, I urged. Yeah, no, I just capitulated to the court, Suisponte suggested. And what you did was you allowed yourself to be talked out of, not, on the whether you or not, but you allowed yourself to be talked out of what was absolutely required. That is a finding of guilt. And when you allowed yourself to be talked out of it, you got to live with that. And defense counsel said, okay, Judge, if that's your grand idea, I'll go with it. But that's not inviting it, it's just conceding. I understand it would be a clear case of it, invited error if a pellet had proposed the jury verdict form itself and said, Judge, let's use this form. So yeah. And the court said, this is a general verdict form and said, this is fine, that's invited, but they just said, listen, for this council is correct. Let's have a special verdict on the question of possession in one, weapon in the other one, and then let's get that element home down to that. That's fine, but it's still to relieve the responsibility to find guilt on every element and come to the conclusion of guilt or innocence. And that's what I'm saying, I just don't see how the government has a real maritalist position, but to concede that we have to do that here. Well, you're on it. And again, the verdict form clearly just addresses the one issue as to each exhibit. One element. One element that is that while the others weren't stipulated within the jury instructions, all parties agreed. This is the crux of the case as to each exhibit. Is there a difference between the exhibit one and the two in terms of the elements? The other side said specific intent was required for the exhibit. No, we don't believe there's any difference in either. Their position is that specific intent is required for exhibit one, which if the court were to get focus on that, you disregarding the verdict form issue itself, we think even if the this court said, appellant, you're correct, there should have been a specific intent or even as to exhibit one, there clearly wasn't one necessary for exhibit two. So with regards to the jury instructions, we don't believe there is air with regard to the intent portion of it. And even if there was, it would be harmless because all parties agree that intent wasn't required for exhibit two, the one in his locker. Why did you add homemade to the charge? Your honor. I couldn't tell you I think I've done a number of these cases. I get tasked with handling the cases out of the one prison that our branch office covers. As we put it there, it's to put on notice of what we are charging them with having. Any question what it was, the object was in this case? I don't believe so. That's the one they found on him, correct? Well, in his locker, he had... No, the locker was possession, it was the question. But the one they found on him was the issue of whether or not it was a weapon. Correct. There was no question of notice, which when you talk about it, it's when they found on him. Sir, this is the one we found on you, it is a weapon. Why did you add homemade? You almost had to talk about it, invited counsel to make, I think, a rather

. So yeah. And the court said, this is a general verdict form and said, this is fine, that's invited, but they just said, listen, for this council is correct. Let's have a special verdict on the question of possession in one, weapon in the other one, and then let's get that element home down to that. That's fine, but it's still to relieve the responsibility to find guilt on every element and come to the conclusion of guilt or innocence. And that's what I'm saying, I just don't see how the government has a real maritalist position, but to concede that we have to do that here. Well, you're on it. And again, the verdict form clearly just addresses the one issue as to each exhibit. One element. One element that is that while the others weren't stipulated within the jury instructions, all parties agreed. This is the crux of the case as to each exhibit. Is there a difference between the exhibit one and the two in terms of the elements? The other side said specific intent was required for the exhibit. No, we don't believe there's any difference in either. Their position is that specific intent is required for exhibit one, which if the court were to get focus on that, you disregarding the verdict form issue itself, we think even if the this court said, appellant, you're correct, there should have been a specific intent or even as to exhibit one, there clearly wasn't one necessary for exhibit two. So with regards to the jury instructions, we don't believe there is air with regard to the intent portion of it. And even if there was, it would be harmless because all parties agree that intent wasn't required for exhibit two, the one in his locker. Why did you add homemade to the charge? Your honor. I couldn't tell you I think I've done a number of these cases. I get tasked with handling the cases out of the one prison that our branch office covers. As we put it there, it's to put on notice of what we are charging them with having. Any question what it was, the object was in this case? I don't believe so. That's the one they found on him, correct? Well, in his locker, he had... No, the locker was possession, it was the question. But the one they found on him was the issue of whether or not it was a weapon. Correct. There was no question of notice, which when you talk about it, it's when they found on him. Sir, this is the one we found on you, it is a weapon. Why did you add homemade? You almost had to talk about it, invited counsel to make, I think, a rather... I won't say creative, but what I would say when found is there a mariturist argument about... When you say homemade, is that the intent to make a weapon when you say homemade? When you add the word, every time you add a word, you perhaps run the danger of adding something to your element. What did homemade add to and mean to that, to put it in the front of it as an adjective for the now weapon? Again, the thought process was to put him on notice of what he was being charged with because the indictment said two homemade weapons. That included the one in the locker. He also had other contraband in that locker that could arguably have been considered weapons that was sharpened plastic and some other tools that were merely discarded. So you really wanted to bring that element there to distinguish it that you intended this to be a weapon? No, it was... That was like the me, you know. I don't believe that wasn't my position. It was... We believe it sort of superfluous. You know, but again, I realize that opens the door at least for them to make the argument. But I do think it is different from a gun or anything, you know, or manufactured weapons, as you mentioned earlier. So to separate those two. And again, a weapon is for offensive or defensive purposes because obviously within the prison context, you can't just say, oh, I wasn't going to use that for any... Again, I wasn't going out to stab anybody right now. I only had it in case someone comes after me. And that was in my argument to the jury. It was going to the intent as to offensive or defense so that the jury understood he didn't have to have that weapon. And going to attack someone at the time he was caught with it

... I won't say creative, but what I would say when found is there a mariturist argument about... When you say homemade, is that the intent to make a weapon when you say homemade? When you add the word, every time you add a word, you perhaps run the danger of adding something to your element. What did homemade add to and mean to that, to put it in the front of it as an adjective for the now weapon? Again, the thought process was to put him on notice of what he was being charged with because the indictment said two homemade weapons. That included the one in the locker. He also had other contraband in that locker that could arguably have been considered weapons that was sharpened plastic and some other tools that were merely discarded. So you really wanted to bring that element there to distinguish it that you intended this to be a weapon? No, it was... That was like the me, you know. I don't believe that wasn't my position. It was... We believe it sort of superfluous. You know, but again, I realize that opens the door at least for them to make the argument. But I do think it is different from a gun or anything, you know, or manufactured weapons, as you mentioned earlier. So to separate those two. And again, a weapon is for offensive or defensive purposes because obviously within the prison context, you can't just say, oh, I wasn't going to use that for any... Again, I wasn't going out to stab anybody right now. I only had it in case someone comes after me. And that was in my argument to the jury. It was going to the intent as to offensive or defense so that the jury understood he didn't have to have that weapon. And going to attack someone at the time he was caught with it. And he can see that I would use it if my life was threatened, didn't he? Correct. If someone came after him, he would use it to defend himself. Going back to the jury instructions, again, the district court told the elements that told the jury every element that the government must prove beyond a reasonable doubt. While the record doesn't reflect it, the jury was not out very long. So it told them the government has to prove these elements beyond a doubt. A reasonable doubt. It also said that the defendant comes into court, clothed with a presumption of innocence, which requires you to acquit him unless the government proves your satisfaction beyond a reasonable doubt that he's guilty. And in page 124 it said before that how are they going to acquit him if they only get to answer one question? Well, there was only one question on the verdict form. I think the district court still instructed them that you have to find all of these elements beyond a reasonable doubt. And I think if there was confusion over that. How do we know they did? You said they weren't out very long. So they only didn't take long to answer those two questions. No, but the district court also said you have to find all of the elements beyond a reasonable doubt. Find that first to find that one thing they found? No, it is instructs to find all of that is that one thing. Sure, they could have, but we don't know. I don't believe that, and again, it's honest and all honesty, it is just speculation. You have a tough case, don't you? I do. And I put myself in this position probably more. Tell us what you have a tough case you need to just acknowledge it's a tough case. It is a... I got a good answer to what I just said. This is really tough. And I admire you for the fact you want to try to represent your case, but it is what it is. No, it is absolutely a tough case, your honor. It's a position that the government put itself into, probably more so than Ms. Blazer feels she put herself into. Don't we have to have a new trial? Can't reconvene a jury now? No, you certainly couldn't do that

. And he can see that I would use it if my life was threatened, didn't he? Correct. If someone came after him, he would use it to defend himself. Going back to the jury instructions, again, the district court told the elements that told the jury every element that the government must prove beyond a reasonable doubt. While the record doesn't reflect it, the jury was not out very long. So it told them the government has to prove these elements beyond a doubt. A reasonable doubt. It also said that the defendant comes into court, clothed with a presumption of innocence, which requires you to acquit him unless the government proves your satisfaction beyond a reasonable doubt that he's guilty. And in page 124 it said before that how are they going to acquit him if they only get to answer one question? Well, there was only one question on the verdict form. I think the district court still instructed them that you have to find all of these elements beyond a reasonable doubt. And I think if there was confusion over that. How do we know they did? You said they weren't out very long. So they only didn't take long to answer those two questions. No, but the district court also said you have to find all of the elements beyond a reasonable doubt. Find that first to find that one thing they found? No, it is instructs to find all of that is that one thing. Sure, they could have, but we don't know. I don't believe that, and again, it's honest and all honesty, it is just speculation. You have a tough case, don't you? I do. And I put myself in this position probably more. Tell us what you have a tough case you need to just acknowledge it's a tough case. It is a... I got a good answer to what I just said. This is really tough. And I admire you for the fact you want to try to represent your case, but it is what it is. No, it is absolutely a tough case, your honor. It's a position that the government put itself into, probably more so than Ms. Blazer feels she put herself into. Don't we have to have a new trial? Can't reconvene a jury now? No, you certainly couldn't do that. So if you feel it gets to that point, then yes, I don't think that you can send it back just for the district court to say... Make those findings right. Correct. He can't make those findings for them. Again, the district court told them they had to make those findings. There were no questions presented to the court. It would just be...it's pure speculation, I would say... What is our review of this? Since it was not objected to... I guess it wasn't even recognized or sort of came up. How do we review this? As far as he verdict for him, if it's... Who wants to try to apologize? It seems to be more than just a verdict form. It really is going to an issue of whether in the first instance he was even properly found guilty. I mean, whether there's a judgment, that's really what it is. How do we review whether there is a judgment? Is it plain error? Or we just...we can just review it. I mean, he either exists or not

. So if you feel it gets to that point, then yes, I don't think that you can send it back just for the district court to say... Make those findings right. Correct. He can't make those findings for them. Again, the district court told them they had to make those findings. There were no questions presented to the court. It would just be...it's pure speculation, I would say... What is our review of this? Since it was not objected to... I guess it wasn't even recognized or sort of came up. How do we review this? As far as he verdict for him, if it's... Who wants to try to apologize? It seems to be more than just a verdict form. It really is going to an issue of whether in the first instance he was even properly found guilty. I mean, whether there's a judgment, that's really what it is. How do we review whether there is a judgment? Is it plain error? Or we just...we can just review it. I mean, he either exists or not. Whether it's plain error or a denovo, you're on our... Don't believe that's a standard review. I'd have to check my brief to see if we address the specific standard. What if any...in a different than if the jury came back and says... Nothing. And then the judge just sentenced it. I don't follow as far as that. What do you mean? The judge just comes back and says, well, we're going home. The judge says, well, I'm going to sentence you this evening. But it'd be any different than if the jury comes back with just one element. And an ultimate conclusion in both instances is there's no judgment. And I'm having a little trouble following up. So again, if a jury...not necessarily this case, but any case... I'm not getting hung up on that. Just if the answer is there's no judgment. And what is the review? Your Honor, I don't have off the top of my head. I don't have a specific

. Whether it's plain error or a denovo, you're on our... Don't believe that's a standard review. I'd have to check my brief to see if we address the specific standard. What if any...in a different than if the jury came back and says... Nothing. And then the judge just sentenced it. I don't follow as far as that. What do you mean? The judge just comes back and says, well, we're going home. The judge says, well, I'm going to sentence you this evening. But it'd be any different than if the jury comes back with just one element. And an ultimate conclusion in both instances is there's no judgment. And I'm having a little trouble following up. So again, if a jury...not necessarily this case, but any case... I'm not getting hung up on that. Just if the answer is there's no judgment. And what is the review? Your Honor, I don't have off the top of my head. I don't have a specific... Correct. Instructural error, wouldn't it? I believe so, Your Honor. And so again, it's a tough case. I don't believe the jury went into those deliberations thinking... I can't get in there, it's been thinking, we'll answer these questions. And then they'll send us back to say whether he'll see or not guilty. I feel like they knew exactly going into it. What the answers to those questions were. Certainly. Good news for you. It's not a tough case to retry, isn't it? No, it took probably all of them about four or five hours, I think. Now you've got everything all there and all goes right back in. I would prefer not to have to do it again, but it's... After you get past those double-jepity arguments. Well, I don't know that those attach. I was not finding what Miss Trial was there. If the conviction itself is reversed and remanded, I think we do start all over. Is there a conviction? Well, Judge Blot clearly sent it to me. I don't want you to answer those, but I'm just saying, don't let Judge Windy. All you're thinking this might be a cake walker. There's some legal questions in the together. No, and we are certainly.

... Correct. Instructural error, wouldn't it? I believe so, Your Honor. And so again, it's a tough case. I don't believe the jury went into those deliberations thinking... I can't get in there, it's been thinking, we'll answer these questions. And then they'll send us back to say whether he'll see or not guilty. I feel like they knew exactly going into it. What the answers to those questions were. Certainly. Good news for you. It's not a tough case to retry, isn't it? No, it took probably all of them about four or five hours, I think. Now you've got everything all there and all goes right back in. I would prefer not to have to do it again, but it's... After you get past those double-jepity arguments. Well, I don't know that those attach. I was not finding what Miss Trial was there. If the conviction itself is reversed and remanded, I think we do start all over. Is there a conviction? Well, Judge Blot clearly sent it to me. I don't want you to answer those, but I'm just saying, don't let Judge Windy. All you're thinking this might be a cake walker. There's some legal questions in the together. No, and we are certainly... But I just... I just... No, that is an issue. Don't pay attention to me, I'm just an issue. Well, I will let you know that is an issue we did actually discuss going into today. All right. Okay. I think I'll stop it all I can say. I think we understand your argument, Council. Thank you, Mr. Bianchi. Mr. Blaser, do you have anything further from the Court? I'm not. I think that it would be unnecessary for me to do more than simply answer Judge Windy's question if he still wants me to answer that question. That's up to you. As Windy's giving you the option, do you have anything further to say? I think that... That's something you want to say. No, I think that the Court has said all it needs to be said. Thank you. I thought so. All right. We're going to come down to Greek Council and proceed to our final case for today