mr billy white eagle and how that accident has only been compounded by mr bowman receiving the wrong legal outcome in two thousand and eighteen mr bowman was convicted by a jury of involuntary manslaughter however at that trial neither was the sufficient evidence presented nor was the jury properly instructed in order to sustain that conviction to affirm mr bowman's conviction here which substantially diminished this court's longstanding involuntary man's involuntary manslaughter standard nearly forty years in the making and risk the loss of an essential element to that of fats we respectfully request that this court reverse in favor of a judgment of acquittal or alternatively remain and for further proceedings mr bowman raises two issues here on appeal the  that the united states did not present sufficient evidence on the mens rea requirement of gross negligence in order to sustain that conviction in this district there are two elements to gross negligence while there are two factors to gross negligence i   we look at mcmillan we have something more in addition to intoxication and this case the united states proceeded as if this was a strict liability offense involuntary manslaughter is not a strict liability offense it  officer russo they treated this offense as if it was strict liability officer landis specifically stated that he didn't conduct a forensic examination of the scene specifically because mr bolen had confessed to being intoxicated while driving mr bowman sitting by the the house at three hundred and eleven dollars roster he appears to be intoxicated no additional site investigation was conducted but we don't have here that we had in those previous cases for example mcmillan schmidt we don't have record however what we don't have is it anything beyond that what about that they the testimony or the evidence that not only was the blood alcohol that high he couldn't speak clearly he had actually said and that he was couldn't go in was that he couldn't go into a store he was so drunk and it really he should have been behind that car as are those those factors over and above just a straight forward what you're calling strict liability drunk driving here and i think that those walk to the squad car he had his hands cuffed he had no a sit he had no trouble making that particular walk he asked the officer he believe it was officer officer webb to uncover him because they were hurting his hands so we have your honor is that he was able to conduct himself in a particular way would that be a question then for the jury though to decide whether or not believe he was unable to walk unable to stand very well or whether he was more able to control is physical movement isn't that something for the jury to decide your honor those are jury decisions absolutely but what we don't have here is given the fact that we don't have a reconstruction we don't have a sufficient amount of evidence to justify the conviction we have evidence that he might have been intoxicated but we also have evidence that he did want to drive and it was aware he didn't want to drive he wasn't driving in bismarck that was mr pettitte and when he actually goes out to sleep your honor he says i'm going to go to sleep and how does that help him i'm sorry how does that help him if he knew that he shouldn't drive and knew he didn't want to drive but then did it end up driving your honor that goes to whether his conduct was wanton or reckless if he knows he shouldn't drive and he's just simply backing the car up to go to sleep to it as a sleep off the drunkenness that demonstrates that his conduct was a wanton or reckless i don't understand explain that further i mean if he knows he shouldn't drive any backs up the car then he is driving the car honor goes to his intent about what he want to do when he was driving unlike schmidt unlike the milage he's not planning on driving through the city he's not planning on making a distance all he really really wants to do is back a car up ten to fifteen feet to sleep it off is not someone that wants to drive knowing that he's intoxicated knowing that that may pose a risk to human life what he's trying to do is basically a bait the drunkenness back a car up recline the car and take a nap what not trying t might say once he starts to move the car though whether it's driving across town or driving backwards in an area that's known to have been estranged it's the same thing as a legal matter honor i think i'm sorry ron what about that your honor i think it would go to whether the conduct was wanton or reckless and that's why this particular case here is so deficient is because we don't have anything beyond him being intoxicated and firing the ignition that's all we have but if you look at this court jurors prudes on involuntary manslaughter there's always been something more than simply firing the car up and driving driving into hyper in a high traffic area speeding in the case but malan there actually was a site reconstructions on and they determined that he was driving seventy mph it was ultimately i think a residential area he blew a stop sign he crashed we don't have any of that all we have is that he was tired he fires a car up planning just  back up and go to sleep that's where the site reconstruction would have been so helpful and iran is also additional it's important to know that the united states probably could have brought this case under a different offense if they're treating it as if it's strict liability through the assimilative crimes act there are other offenses by which this could have been brought namely the north dakota vehicular homicide statue that is a classic strict liability offense there will be a question of assimilation of course couldn't say here today that he'd be convicted  offense but that was available to the united states and had they wanted to proceed under a strict liability theory that was available to them as you see how north dakota during the course of cream corn is interpreted that particular statute it's essentially you're intoxicated or over  legal threshold you drive there's either an injury or death that's liability right there involuntary manslaughter requires something different it's not a strict liability is that it has this additional measure a requirement that add something for t offense that wasn't met here and it was impossible to meet here because we just simply runs don't know what happened we know that there was a death but we have no idea how that accident was how it took place i believe it was the friends of path ologist dr william testified mr white who could have been asleep he could have been underneath the car and there's some discussion in the government's brief regarding a camera but we don't know if the camera worked we have some testimony that mr bowman didn't like to use it the actual reconstruction was on an evaluation of the vehicle we simply don't know what state that back a camera was then we don't know the backup camera would have worked and actually saw mr wade eagle sitting there well what would the reconstruction have done and tie the conduct into the something more the science intoxication that that it's been true throughout the circuit's history with regards to specific events charge involuntary manslaughter for example what might of what might have popped up wanted for example we could determine how fast mr bowman was driving when he backed the car up we could have determined if he actually even put the car in reverse or just put it in neutral we don't even know if this point which gear the vehicle was then we could have had perhaps a reconstruction of we could have had a further investigation as to what mr y you was doing you know mr white eagle was intoxicated and there's evidence or testimony that he went to use the restroom but we really don't know where he was really don't know what he was doing we don't know w actually what he actually doing in terms of its relationship to the pickup truck so there was no testimony about what mr whitey eagle was doing shortly before this act and this incident you're on to we have little testimony just that he was planning on using the restroom and that was coming from officer franklin and us we have the testimony that mr white eagle himself was highly intoxicated at the beginning of the trial it was estimated that his be a she was around point three dollars so he's highly intoxicated too and when the forensic pathologist says it's possible that he's on the ground he could have fallen asleep that's something that a reconstruction would be highly beneficial to because we simply don't know at the point in which mr coleman ran him over the wheels which wheeling or is moving faster there were there was a loud collision vaal that is that comes from a line of cases that preceded the application of the actual knowledge standard in the circuit that begins with why isn't this covered in the gross negligence definition you want to because the case holding the whole event in this particular circuit has been clear that actual knowledge a separate and distinct element and you look at how gross negligence functions and the requirements of want in a reckless disregard for human life that's different than how the actual knowledge standard works which is actual knowledge of a threat or actual knowledge of the circumstances by which one could foresee the peril their conduct subjects others to it that language is in the gross negligence definition so in order to find that mr bowman acted beyond a reasonable doubt with gross negligence they had to find that it was either knowing that the comic was a threat or with knowledge that he could for see the conic might be a threat didn't and wouldn't win then you're under the way that the jury was instructed in this project particular case the gross negligence standard without the and without being separated was it collapse on the actual knowledge standard so the jury was instructed as to a definition of actual knowledge but the jury in no way knew that actual knowledge in of itself was an essential element independent of gross negligence what do you mean by independent why does it have to be independent as long as they had to find the element you're right because had to find that he acted with one ton and reckless disregard number one and number two if he had to have done so either with knowledge or the two types of knowledge why isn't that enough it's insufficient here because one the case law is that actual knowledge is an independent element secondly the actual conduct the standards are different it's similar but it's different acting with wanting a reckless disregard is different and an understanding of the threat to human life and that's why there's been a distinction between the two as applied in the circuit i don't understand what difference does it make whether the elements are listed in one instruction or two different instructions just long as the jury's told they have to find them difference around it would be that the jury wasn't aware that they had to find both beyond a reasonable doubt when actual knowledge is a separate and distinct essential element and that's observed by gross negligence the jury is unaware of what the government's burden is as respect was a brownie russell of our office your honor i happen to have another argument or this panel later this morning so near obvious for me to take it to she was on vacation in this particular case you are you know the defense wants to basically look beyond they don't want to look beyond just the dui that took place to dui took place when this moment entered the vehicle started the vehicle put it in gear and moved you want to disregard everything that happened prior to that and what we know what happened prior to that is well mr bowman woke up that morning he started drinking early he admittedly indicated to the agent that he started drinking beer and wine or earlier today was drinking throughout the day he knew at some point he was too intoxicated any arrange for another individual to drive him to bismarck for the sole purpose of stopping in a store and shopping for clothing once he got to bismarck he couldn't even leave the vehicle because of his intoxication nationally driving over the victim in this particular matter he knew or should have known that he had to quit for the roadway make sure that it was clear he had a backup camera on a vehicle no there was no testimony or an occasional backup camera was used however mr bowman was asked during his interview about the backup camera or the safety feature on his vehicle and he said he never got used to that thing so he just didn't use it he got in the vehicle he drove over th model instructions when there was no objection the instructions that were provided by the just the court almost tracked identical was what mr bowman offered to the court prior to the closing arguments of the trial the only maybe it's the case maybe in the confusion between the case law and different cases and instructions but there is language at least in the arctic case that tracks what opposing counsel is saying that gross negligence and natural we look at gross negligence in the manner in which it's given and will involve a manslaughter it actually requires two elements itself so you have sub elements to gross negligence st element is the wanton reckless behavior which i think you have i think i actual knowledge or individual knew from circumstances that behavior could reasonably in foreseeable put someone in power so huge that you have the instructions given out and you have the jury looking at what they need to find here they have was wrong and that he couldn't even shouldn't do that because it could imperil some of the individual in this play in this particular case it he ran over his nephew once he got into the vehicle started up and backed up  there is of the elements the proper elements are given to the jury instructions the jury had everything they needed to instructions were proper there was no objection to him in this particular case these instructions were provided by the district court i believe almost since the particular judge in this matter has come into the into the district these particular instructions were provided in these types of cases we've had these cases previously at least once during the actual closing arguments and then again in the rebuttal arguments in trying to refocus the jury on what the elements were that they needed to find in doing so and believe she went through and she listed out the actual conduct similar to the way i the gross negligence and the actual knowledge was that focused on ars you know in the closing because in my either party i don't think it was focused on specifically like that i believe it was provided to them in that reference in the instructions that the court gave the jury instructions again line you either have to find this with this or this and the jury made a determination that mr bones conduct was the conduct of such that would result in a conviction in this particular matter believe the the court in this particular case was did not hear all i would say what let alone plainly are the instructions were correct and proper a sufficiency evidence again i don't want to go back and belabor the but one interest summarized then i suppose you had just a drunk person all you had was a drunk driver who backed over a person would that be enough or would you need alternate death or that in reality or on your own i think you could be i mean you could be you could be could be enough to if the person you i mean i guess you'd have to look at what kind of knowledge a person had prevent them from driving a vehicle because they can do so say well the defense of course is arguing that if we accept that as ition were collapsing involuntary manslaughter with a strict liability  dui causing death statute what do you think of that i don't i don't believe the pressure on or think will be the distinction between the decision is the dui is nothing more than the year in relation to the nd element of the crime which earlier in the day knew he couldn't drink or couldn't drive had to have somebody else drive him all of that conduct boils over to a point where the jury looked out and said all of that leads to wanton reckless behavior because he knew he could not safely you know pacified that he didn't look in the mirror just say i'm glad that we're on and that's not a that's not that i'm sorry that action but there was no indication that he will be in the mirrors or look clear around the vehicle there was no testimony that he was looking around  vehicle he so if you want to suman him for that he failed to look around to be able which one person would do if you got into your vehicle you tend to look around your vehicle in this particular case he got in the vehicle disregarded everything and backed over's his nephew so the who was negligence require still that wanton reckless behavior on her in the knowledge or the reasonable thank you for your argument that you know would you like one minute for about one hundred you think you've said all that needs to be said mr pennington and you are right for for future reference you know the clock shows your entire time if you want to save some or her battle you've got to those elements would have clued in not only rothko's elegy negligence but also the actual knowledge on it and then we get to the actual definition of those offenses there be an independent definition of gross negligence and independent definition of actual knowledge in our proposed jury instruction which was jury instruction for we had an actual description of gross negli gents we had an independent description of actual knowledge what we didn't have and i proposed jury instruction was a separation of the elements of gross negligence and actual and for these reasons we respectfully request this court either reverse for judgment of acquittal or a man for future proceedings your honor thank you for a little every well you're welcome thank you