contained a request in the first requested contained was for the definition of a typical affective disorder there was evidence of that condition in the record but no evidence of its definition there was reason in the record to conclude that this condition atypical affective disorder was significant to misgovernance diagnosis that it was significant to the reason why she was unable to work but you don't contend that the judge should have given the definition out of a medical dictionary or out of his own head do you do not know so and it's true is it not that the defense did not ask anyone there's nothing in the record that defines the syndrome or illness correct so  you're complaining about is that the judge said besides saying no i can't give you that said you don't need that what is that inaccurate or did they need that to decide the case yes our position is that it is inaccurate  in that the jury could readily interpret that to mean that the condition the evidence of the condition in the record was not significant to its deliberations but he didn't say that no he did not  definition i agree your honor he did not say that and we're not obviously are not contending that he said that because he didn't he said that you don't need a definition of this is not i mean the exact language is your point i t literally said was if you look at the elements of each of the charges i don't know if it's really necessary that you have a definition of that anyway and you're saying that the jury would necessarily have understood that to mean it's irrelevant your hon respectfully i don't want to say what the jury would how the jury would necessarily have understood it but i don't think that's necessary to my argument my argument is that it would be reasonable for the jury to construe that to me that the evidence in the record of a typical affective disorder was not significant but why would you why would you think that after all the immediately preceding sentences you have to rely upon whatever the evidence has been that's been produced and there was evidence that there was such a syndrome and i take it there was at least what was there not something that about a possible affects or something like that the defense expert that yes there was evidence of the possible effects of a typical right so so what was necessary for the jury was to look at the evidence and see whether what they were told if they believed it about the possible effects of it could be called anything would have on ms government actions and beliefs and words and that's what they're supposed to look at they don't need a definition of the term i submit that an ordinary lay person juror in hearing the court's response to their request could very readily construe that to mean that the evidence of this condition is not significant and i would point out that the judge himself clearly in the record where there's a colloquy about yes you see that's what my problem is i think you're reading what he told the jury in the light of what he told the lawyers outside the presence of the jury and the juror the jury never heard that where the judge was dismissive of the effects of this syndrome on the case or the relevance of that to the case but that's not what he didn't say anything like that to the jury right i mean you know i don't want to cross contaminate the jury instruction with the colloquy yeah but should you're saying i should and i should pay attention to the colloquy and interpret in this i mean just say that i hope i didn't suggest that he did i mean i know what he said we know what he said yet here and to the jury and we know what he said to the attorneys so we do we in this case we happen to know what the judge was thinking and he was thinking i said it for the wrong reasons that this evidence was not relevant and indeed i and and i take it your point is  least one reasonable reading of this is you know have to worry about this the suggestion being that it's a real thing he did that we didn't use those words now that me not be the only possible read but then us time to clarify it because of what we now know was his misunderstanding he declined to clarify so my question to you is since what he said was probably literally true but conceivably suggested something that was misleading how does that rise to the even just with your suggestion that he clarified it to anything other than a passing mistake but nothing of consequence well because the they still had all the avenues that you're relying on that went to intent whether they had their definition or not because your honor the jury for reasons that i've explained i hope clearly in this disorder you had the evidence that it affected one's perception it could affect one's perception of pain the defense counsel could have summed up you know that this disorder effects perceptions of pain someone  afflicted by these perceptions and distortion in their perception of pain might have thought that they were more disabled than they are might have been unable to perceive their physical abilities and so this raises a reasonable doubt about intent of that still open to the defense on summation right i mean that wasn't you weren't hidden from the argument no our point is that the the judge threw that charge interfered with the jury's assessment of the evidence assessment of the evidence is to put to your function of the jury not the court the court had its own opinion of the evidence and through that charge he implicitly communicated that view of the evidence to the jury to this defendant's great prejudice and i would just point out that the the decision in this case relied on the absence  relied on the eye and examiners not having any information about that diagnosis to conclude that his opinion that she was able to return to  work was of little or no that the jury could have looked at that and said well you know we don't have any information telling us that she does not have this condition and maybe she can't return to work based on that condition thank you please the court michael perry for the united states i was trial counsel for the united states well in this matter going also to this jury no issue it is the government's position of course that the judge could not properly have provided the definition and that in what he he it was literally true and i also would like to point out that the case was not about the perception of pain or about the perception of her abilities the case by and large hinged on her actual activities so whether she may have been true of false statement charges but isn't there an intent to defraud element for at least some of the charges that were there well certainly there's an intent to defraud element your honor but if she sincerely believed that she was entitle to benefits is it not conceivable that even if she misrepresented certain specific facts she did not do that with the intent to get anything she wasn't intitled to this was front and center at the trial this was dressed in arguments to the jury and the point being that she wouldn't have lied about all of these specific activities for so many years unless she believed that telling the truth would have prevented her from getting the benefits and there are so first and they're asking for a definition which suggests that they think there's something to this argument the least want to consider her and they get not only that there's no his answer as saying that all of that evidence is irrelevant he specifically says that he doesn't know if the definition is is irrelevant as has been pointed out already this morning he the sentence before that he says you have to rely upon whatever the evidence has been important if you look at the l bits of each of the charges i don't know if it's really necessary that you have a definition of that any way to decide the elements of each of these charges so he volunteered that is news and you can tell and i'm not sure what he meant well your honor the governor's position would be that it is important for the jury to understand that they should not be looking outside of the record when they're deciding this and that's in every jury charges in this jury that's not what he said earlier i don't know if it's really necessary that you have a definition not part is true although i'm not sure why he thinks it's important of that any way to decide the elements of each of these charges that their job  is to take account of all the evidence this related and the reason for their no one assumes it related to one of the primary defenses in the case respectfully your honor this was clearly not a primary defense was not mentioned in opening or closing argument it was mentioned in passing a couple of times and it appears in a couple of documents so this was not something that was put forward by the defense all of the explanations that were made to the trial judge in chambers  none of them were made to the jury in terms of how this effects at least in argument and so i would disagree with the idea that it was front and center of the defense case it was when he said earlier hence was front was front and center in the case i think you said i misspoke i apologize that this is what i meant that the idea that she needed to have intent to defraud the government was front and center but this issue of a typical affective disorder was not there's one thing i would like to point out so which you are in the very first and for this definition well if they weren't focused on the point that we've just been talking about because you think the intent was the issue wasn't that specific aspect of  this is a bit of conjecture because there's no way to know why they asked it but the ek decision the decision was discussed at some length the defense counsel was urging the jury to rely on the cab's germination in ministre determination committed fraud that it made a very narrow decision and so and then they went back they deliberated for a few hours and then they came back with this question about the meaning of a term that's in that decision i believe that's what happened although there's no way to know there's one other thing i'd like to what happened after the instruction was given that connally said there was a request for a curative instruction that was read the record a seven thirty one to thirty two thirty four to thirty five of the transcript defense counsel raises the question sort of makes an objection to this it's not necessary statement and then says we would ask for some sort of curative instruction and as far as i can see in the rest of the paragraph speaking there is some general discussion of why atypical affective disorder might have affected something in the case but there is no formulat of any particular curative instruction and i'm missing something from your recollection or from your reading of the record is there some formulated curative instruction that was requested by the defense to my memory and to my reading of the record there was not in fact it was unclear at the time and it is still unclear to me what defense counsel believes the judge should have said what seems to have gone on is that as soon as the jury put this note in defense counsel regretted not making  this real issue at trial and essentially wanted to do over in effect to to put this issue it front and center which would have been improper sure i mean that's the answer to draco's question isn't that why did the jury as the question because the jury picked this up which is something that happens in cases jurors pick up things that the lawyers missed that's why we have jury trials and so they were interested in this subject and the judge told them accurately i cannot define it for you and  secondly what you should look at is the evidence in the record and i don't think you need the definition but the jury was focused on this as something that might be relevant yes your honor and there's also  important thing i neglected to cite this in my brief i apologize but it is in the appendix it's in the record this is appendix page seven fifteen and seven sixteen as soon as the judge finished his jury charge he asked the jury do you have any questions about my instructions and one of the jurors raised my hand and said i'm quoting from a seven fifteen going into a seven sixteen from the defendant's appendix we were shown a lot of writing up on the screens and there was some writing that we could see but our attention wasn't brought to it so is the fact that that other page might be in evidence is that something we can use in our decision and the judge asks a couple of clarification questions and eventually his answer on page  the judge says they didn't argue every point in the exhibits they brought to your attention what they believed is more relevant and probative each side does that but you have all the exhibits if there is something you wish to look at and pursue further you may do so of course it's in evidence and i apologize that i didn't put that in my brief that is in the appendix i do believe it at least has some relevance to this discussion that the jury had another data point which they understood that they could look at all of the evidence one thing also that has been mentioned this morning there was the first exhibit i believe it was exhibit one was more than three thousand pages it was her administrative record we only went through a small fraction of the pages and so that was something else that was addressed you know the jury could look at all of that they could look at the other video that wasn't talked about but we weren't going to extend the trial by another week to go through the record laboriously that way so i think this shows that the jury had every right ability to look at this more closely what was in the record and also i think it's important they did deliberate for several more hours after this jury now came down to see my time's expiring i will urge this court to affirm the conviction all respects including on the sufficiency of the evidence which was not discussed this morning thank you defraud the government and i submitted to jury could have thought that this atypical affective disorder was relevant to that issue of whether she she did have your adversary just  jury yes yes that's substantially true jury pick your argument is that even though this was an essential part of the defense at trial the absence of evidence as to the definition of this disorder could have been taken by the jury into account in its deliberations to suggest that there was that the government failed in its a burden of proof and that this instruction prevented the jury from doing  obstacles in the jury's way calculated to lead the jury to reach the conclusion that the judge thinks the jury should reach and the respect to the a typical affective disorder evidence while the defense did not directly argue that to the jury they did argue to the jury that the jury should consider the decision from nov twenty fifteen reinstating her for clarification after the instruction was given and am i right that that passage on seven thirty one thirty two of the appendix is pretty much the extent of the colloquy from the defense side on the and that if there's not a specific request i'd like you to say this to the jury now is there or am i missing you know i regret to say that i didn't explicitly expressly look at that i should of been preparing for this oh i don't remember for sure i so i don't want to say you may be right or i thought well we have the records yeah i thought they did get into a little bit more explicitly but the court was pretty fast to say no we know we're not going to go i didn't make any mistakes