the briefing cover is all the bases including cumulative error and however this morning i'd like to focus on that denial of the direct instruction and briefly touch on the prosecutor's misconduct so allison was entitled to an instruction on the defense of duress because she presented a prime a fashion case on all three elements of duress and i will talk about the evidence that supports each element but it's important to also think about the framework that we're in here alison has a sixth amendment right to present her defen and the defense instruction should be provided as long as there is some evidence supporting it no one argues here that there isn't a basis in the law for it and we take the evidence in the light most favorable to allison and the evidence can be weak or it can be inconsistent or it can be of doubtful credibility those are issues for the jury to decide not for the trial court or the reviewing court so turning to the evidence we have really dozens of pieces of contemporaneous evidence here from multiple witnesses that support the elements so the first element is an impending or immediate threat of serious injury and while there are eight pieces of evidence i can talk about here today really only two of them are necessary to support this element and that's the bodily injury that allison had sustained and the email at exhibit seventy three year one fifty one so the e mail is from allison to jane nichols and in that e mail she discusses that she was threatened that she was blackmailed that by more by the individual that for which dress claimed and that this was a continuous threat throughout for years and that she wanted to quit but she was scared and emotionally exhausted so that e mail really primarily lays out the elements of duress but understandably it doesn't talk about specifically and explicitly a bodily injury however we know that allison testimony showed that allison had been strangled attempted strangling at least by more shit hand prints around her neck that at least leads to an inference of bodily injury but there's more because we also know that her son received a bloody lip at the hands of moore and we know that moore was controlling and abusive to allison and her kids we know that allison called her ex husband to the house at least ten times over the course of a period to deal with more we know that allison also told jane nichols that she needed help and needed protection from more and nichols offered to fly her up to seattle  was in texas to remove her from the situation we also know that more benefited from the fraud which leads an inference that he had a hand in it and we know that alison's ex husband testified that moore had the capacity to force allison to imposed arrest on her to commit this offense so those pieces of evidence all go to the impending threat of serious injury the second element is a well grounded fear that that threat will be carried out and there's at least three bases for that moore had prior convictions for manslaughter and terroristic threats he was also controlling and abusive to allison and had and had sustained physical injuries on both her and her son as i discussed and we also know that he abused alcohol steroids and prescription medications and he was known to regularly be using steroids that could induce more rage and third we know that there was a lack of a reasonable opportunity for allison to escape as i said in the e mail she discussed how she was continuously under the threat but she also was living with more and he would and there was testimony that he was constantly around her that neither she nor her children were really able to even get out of the house her son sustained a bloody nose and just trying to leave the home be able to wire for a we don't know that we don't have that evidence but we don't need that evidence because we did anybody present any of the agents testify to the agents testified that she that allison told them that she was blackmailed and and  we know that there was evidence that she the police were in a point of safety they came to the house the cure was called at least twenty times so i think this is the element that you might have the most difficult because it doesn't just take this covers that about a four year the times he was working at times he was but i said rarely and there the evidence so this is the court doesn't need to weigh inconsistent evidence here to the extent there is even inconsistent evidence but this is where in alison's the mouse she says she was continuously under the threat right and then we have other evidence that supports that as well which is that there was there was no one who would help her and the police were called on several occasions  that makes it very different than a no or vasquez we don't know what she told the police or do we we don't but i don't think allison had that burden now the jury could choose to disbelieve the defense but the point is that  doesn't it doesn't actually go to any of the elements it's a separate defense right which is why without the instruction the jury had no basis to acquit her now these are can all be jury questions as to whether there is sufficient evidence or whether the evidence is consistent or whether it's believable but the evidence was there to establish a prime a fashion case we also know that when allison when that allison confess this and she confessed to consistently starting in two thousand and fifteen and that makes it unlike marino who was kicking the officer and tried to run away from him when he was first subjected to the inquiry about the offense and we also know that that makes it more like content to press shown which in that case the individual submitted to a stomach x ray and started to cooperate upon being caught the case law does not require that an individual immediately cease the activity it requires that once there is a point of safety that the individual confess or cooperate and that allison did that hears it specially on a prima fashion case and i can briefly touch on the prosecutorial misconduct i would just say especially on the second instance the emotional appeal to the jury it was entirely irrelevant to this case whether more receive justice whether the prosecutor believed more deserve justice and whether the prosecutor prayed for morris justice and that in viewing of emotion into this case prejudice alice in addition to miller on behalf of the united states i'll get right to the point under us more alison told jane nichols that more moved out of her house in august of twenty fourteen if charged offenses here began in in june of twenty fourteen but last until march of twenty fifteen so allison simply didn't establish a prime a fashion case of duress because duress requires an immediate threat and here there's some general evidence of threat and domestic abuse but nothing ties and a criminal act being done in response to an immediate threat and more is by no worth that evidence in the record it's a s e r twenty six and this evidence is coming from which witness it comes from allison in a text two more excuse me it comes from allison in a text to nichols i was introduced by the government and in there she says that more moved yeah but i thought he moved back in she says he was finally gone in twenty fourteen and in august twenty fourth this is it as you are twenty one what is the time period for the for the so it was it was a sustained period of about four years in iraq but the charges go from june of twenty fourteen to march of twenty fifteen the six counts of wire fraud that were charged here and i think if you look at vasquez love and her this court's decision in baskets it live under it's abundantly clear that you have to have an immediate threat and the can't be time for it to dissipate and it has to be tied to the criminal act if you look at content of the checco which mr zink referred to there the defend it was in colombia and the court was very clear that he was under duress for every moment until he confessed and it contrasts the case where the defendant had fifty three days and says you know it's very hard to establish to rest when you're talking about that kind of a sustained period of criminal activity which is what we have here i also think that the evidence shows that there was an opportunity the judge exclude any evidence on the derisive issue no the judge did was simply a situation where the judge let all the evidence offered come in and then decided there wasn't enough to give these instructions that's right that's exactly right your honor and i think there are two points that are really telling on the out of court the prosecutor actually said you're allowing this evidence in from  argument that it was warranted and the court rejected it but during the during the argument when counseling defense counsel argued he did raise address in his closing he was effectively making a dress argument that's right or left and the court let him do it that's right but yet there was no instruction so what was that what was that all about i think i mean i think it was effectively an off cation argument she was she said repeatedly our counsel said repeatedly she should be left holding the bag for us more rule fifty one requires a contemporaneous objection so there can be a cure here or if he had said the judge could have brought the jury back in and given us the middle management on the other hand if he'd stood up during the argument the judge could have given the prosecutor a chance to correct the statement i think i don't like the defense counsel didn't here for a couple of different reasons first at page five of the record you'll see that the prosecutor in his rebuttal said we have the burden she has no burden so this is a case quite like other cases where this court has said when the prosecutor doesn't you know affirmatively says we have the burden or not shifting it that counts in terms of assessing prejudice and it counts and in favor of the argument and then as i said under younger reference about credibility what was his reference about credibility all about it was a response was what was that meant to what was what was he trying to highlight he was trying to highlight that the all of the evidence that more was coerced or most of the evidence that more was coerced that that allison sorry that allison was coerced that allison was depending on came from allison and in particular in in defense counsel's closing argument and this is at counsel's closing argument over the course of several pages he goes through why the jury should should accept the view that moore was coercing allison and forced her to do this and the prosecutor was responding to that at pages eight o nine through eight ten when he made this comment and what he was saying is look yes one of the things defense counsel highlighted was that agent spies said there was some element of domestic violence and what the prosecutor was saying is but agent spies was quick to say that all of that evidence came from allison herself in that the evidence that the agent was referring to and if you look at page if you look at that e mail at page one fifty one of the record it is abundantly true that she complained that he was coercive but she did not can't complain that he was violent and so the prosecutor was merely responding to it and saying you have to you have to look at what it actually says and then you have to consider the source and the source is someone who confessed to this crime twice and i think ultimately this is an easy case even on error review because we have two confessions neither of which pointed to more when allison confessed to nichols she did not say i did this because i was the victim of domestic abuse she said i did it because he was manipulating me coercing me but she didn't say she did it because she was the victim of domestic abuse i went to was the worst you could be threatening her but she didn't she said he was threatening to expose her criminal conduct she had been misusing government benefits and of course that's not an excuse if you put yourself in a position of being vulnerable to coercion because you're committing fraud that doesn't excuse further for a lot and then she confessed to the secret service agent and she said i was having a difficult time financially she did not point to more at all in her confession to the secret service agent and for that reason the you in the prosecutor's argument here makes clear what was also part of the problem at trial which was that not only did alison not have an instruction to provide the jury with a legal basis for which to acquit her which is not nearly the same as the possibility of arguing for jury this court recognized so much and evidence was presented in that case as well but an instruction on the defense was denied and reversal was required so the x the admission of the evidence isn't sufficient without an instruction but not only that the government tried to take advantage of the admission of the evidence and and insert its own opinion on credibility and shift the burden notably the prosecutor now tries to rely on argument from five pages earlier and i correctly stated the burden but it was five pages later that the prosecutor made this improper argument what about the government's point just a moment ago that more moved down the list and mentioned to nichols that moore had finally period in which more allegedly moved that's correct but i think that in a domestic violence situation stopping at the moment that the individual is no longer in the house is not necessarily the proper basis for when there's a reasonable opportunity to  but even if allison had a reasonable opportunity to escape which we have no means concede that element is also satisfied if she if the police were in a point of safety for her which they had repeatedly not have to go back and look at the record a little bit more  never and i don't know we don't know what she was but a bad ending to the right and we have to look at the evidence in the light most favorable to her for her to have the instruction so these could all be questions for the jury but we don't know that they are controlling and abusive behavior stopped the moment he moved out in domestic violence situations that's often not true she didn't say that we have no contact in fact she said i've been continuously under this threat that should be enough for the instruction to go to the jury and support the evidence and as we are going in the briefing cumulative  is now submitted