good afternoon your honour's my name is david nasm with the federal public defender's office in great falls montana to represent mr helmer already called the appellant in this case this case presents a rather straightforward issue at least so far as the first in what wantonness to some rather unique facts mr reddy eagle was convicted of involuntary homicide for the death of his two month old son as the court is aware from reading the briefs the death of his two month old son was caused when mr terms that been defined by the united states supreme court and applied by this court in cases following the farmer granting case as the court is aware recklessness has been defined as a conscious disregard of a known conduct in another itself that would place a person on notice of the risk involved with that conduct and those cases involving a defendant that has received actual notice or been placed on national notice through statute or otherwise that his or her conduct percents unusual and dangerous rifts in this case there was no to the conduct we argued in the  court below we argued to this court here that the act in itself of getting drunk and going to sleep with an infant is not something that is so inherently dangerous that it would place a person nor could it jury reasonably infer that  person is naturally on notice that that type of conduct would result in some sort of serious injury or death nor was there any evidence presented by the government that mr reddy eagle had been placed on any notice that this sort of that action in and of itself that mr reddy eagle acted with an extreme indifference to the life and safety of his son or almost with a knowing conscious disregard for the safety and health nor is there any sort of evidence and this sort of evidence on it is talked about in the seven circuit case of the mcgill case kind of the predecessor to the farmer case that would indicate th ever been placed on notice that his conduct presented these sorts of dangers the mic the mcgill case itself talks about normally that when a prisoner for example tries to establish  deliberate indifference or criminal recklessness on the part of the guards that normally the way they do that is they present evidence that the guards have been placed on notice that the inmate is in danger or something  is associated with her conduct that wasn't done here now the question is this is did the government present through other evidence evidence th without some sort of actual notice to hand that way through with indicate to him that he shouldn't engage in that sort of conduct and i would assert that finding a reckless or a wanton state of mind second issue that i wanted to touch on just very briefly has to do with the district court's decision to depart upward in this case the district court departed upward aren't based upon a number of tribal convictions he did not i don't think is the government states and it's pretty indicates that he was relying on the conduct underline those convictions he repeatedly and chained the forty five so my convictions and he departure and here's what is the sentencing guidelines that lead sentencing judges take into account any number of things that aren't crimes themselves as grounds to independently crimes so i don't see why the they can't say if you get a traffic court conviction your sentence is nancy even if even though we don't require counsel the friend you are in th what am i missing well i think for a walk in kind of a tight find here because because the court can certainly look to underline conduct and can use that underlying conduct to enhance its own and therefore a court could look something to use that to depart upward but where we run into problems i think under the nichols case and and on down through shelter now versus alabama is when you rely strictly on the convictions i think i think if you interpret that rule to say that what the sense in commissions said is that a court can use simple tribal court convictions to enhance someone's sentence what you're going to have is you're going to he was he was placed in jail after having found to have later the conditions of his release i have nominated they all motion yet because it's it's a crime of violence and  extremely difficult to try to prevail on that and it was my intention that as we get closer up to eighteen months which would be the the top of his guideline range if you fell within category one to make that my brief page forty three of my brief indicates that it's ready to go also argues that brady versus maryland dictates result here and i make the comment that that case is no longer a good law obviously brady versus maryland to feel very good law and it has nothing to do with this case it's united states versus brady and ninth circuit case that should be the citation there one twenty eight s second eight forty four ninth circuit nine hundred ninety one and i apologize to the court i found that this morning about two o'clock in the morning when i was yet somewhat of a fashion yes i'd like to first address what i think we all have to agree is the main issue in this case because if in fact you believe the defendant's argument that already go sr was not  very careful in denying the rule twenty one motion and i think he gave some significant thought to this rule twenty one motion as evidenced by the transcript and then again at sentencing this defendant's wrongful conduct in this case this guy has where we are was taking the child from a i'm i'm you know unfortunately this case i think probably accurate in that if in fact the mother had been in bed in the child was sleeping there but this defendant made a conscious effort and that was noticed by the judge in the rule twenty one argument and again it sentencing he made a conscious station to take that child from a position of safety where he's being cared for by his sisters and placed him in the position on the bed and then he even said to the daughter who tried to retrieve him don't take that child or i'm going to spank you and that was the rule twenty nine argument that lling time if being tiny is his wife not to drink because he wanted her to provide care for the children that night and also in mr nasa's closing is different from risk of sleeping with the now it's risk of caring for the base that there were a number of other so there were other children in the residence the baby being the youngest one obviously to max and mom had done that mom had taken care of the child there was some testimony about her changing the baby's pamper and giving the baby a bottle and of a good woken up placing the baby drunk everybody says that thirty to forty beers minimum point to seven hours after this happened and he says to his wife you don't drink so you can take care of the children and in fact he was very careful not to drive that's pointed out in the closing argument  several people needed right home and right here in there and he knew that he was in no shape to do any of those things and the evidence for peg indian reservation or any other community in which he had lived there never been  public incident of an infant being killed in this manner there is no evidence in this record for you to consider about that no easing of you that's correct your honor and if you also look at it th defendants who you know in the prisons report this is a defendant who has a number of alcohol related convictions for not only dui but for child neglect and child endangerment and was convicted in tribal court and i think if you look at there are a number of pages and a host of pages in the pre sentence report that detail his prior criminal history including not just duis but child neglect and child endangerment and if you look at  page thirty four of my brief it talks about a number of other different kinds of child neglect contributing to the minor domestic abuse all of he is undermined conduct of those convictions being alcohol related baby certainly being about eight weeks old didn't prefer the bassinette as much as preferred sleeping with parents but but interestingly the alcohol problem in this case is the defendant's there isn't any discussion of what the mother is doing with the baby when they're all sleeping together she's sober or not and there's also no evidence in the record from which we can infer that this was a continuing pattern of her allowing him to be drunk and sleeping with the baby i think that's the leap we cannot make but the burden  exactly and i believe that that is in his own conduct as saying specifically to his wife i'm going to get drunk and i can't take care of the children i want you to stay sober then so you can take care of the children especially this little baby but if that's all you've got you see that a wish you had more the person that's there watch the children and just say i don't want you to get drunk because i don't want you to sleep with the children but see i think that what we were mistaking years we were taking the position that i relieving agree with you in units of evidence that shows awareness and i believe that that awareness is is a common sense awareness in addition to his own awareness that he shouldn't drive when he was drinking and didn't drive there were various other things that he chose not to do it i'm going to get into going to put the baby in i'm going to get into bed if you think it did snow great if the person wouldn't know the risk wouldn't meet this test disregarding a risk of harm of which you're aware if you got  provide care for and in fact and we have to keep in mind this is a two month old baby that's not a twelve year old child or a two year old child who's absolutely completely helpless and that is the circularity to the argument is i just fell asleep with this child wasn't supposed to be he moved this child specifically into this place and decided that he was going to provide care for this child after he told his wife used to sober i'm going to be drunk i don't want to take care of these kids and that is the whole mess of this i think in this case you can't just say well you can't just say well he fell asleep and so therefore he's not guilty if in fact he had not gone and taken this child away and tried to discipline the other older child the twelve year old who was coming to get the child and to take care of the child baby out of here probably because he's at least he's more than a point to seven that's the problem here is and i think judge had recognized this in crafting his jury instructions this defendant was completely drunk there isn't anybody is going to disagree with that but at the same law clearly says he is responsible for his own actions even though he's particularly toxic it that is not a defense in this case and so that is the whole crux of the case is this is a drunk guy who does something he probably would have done when he was sober and knew there was a problem related convictions some of which include alcohol related convictions involving his children we also have a defendant who knows and not about taking care of a two month old because he did it during the day the testimony was the mother was working during the day and was employed full time and he tender age that is that is the huge problem in this case and his willingness to say well he's drunk and obviously under no great thought process is there to go get this child and decide that he's going to be the caretaker and then puts this child in the lines right under this way so it wasn't even like you place child in bed to sleep next to him as one might do in cradle child this was a baby was just lay here and a dad who just plopped on top of him and passed out drunk briefly with regard to the other issues i think you've made the point about t court convictions that in fact in this case it was very clear from just hadn't sentencing that it was the conduct that this is a defendant who has numerous numerous alcohol related criminal conduct charges that was the reason he and hence the sentence and w happens to that criminal history but it wasn't based on the predicate convictions even if it had been we put some significant authority in our brief for the fact that this guy can be done under certain circumstances the jury instruction issue i think that you also in this case you have to keep in mind all of us do the standard of review which is you look at the evidence in the likeness favorable to the government to see if we have established the essential elements and i think in this case that evidence is there and the jury could from the instructions that were given as a whole which we we believe were absolutely correct to the destruction and reckless disregard was a little bit different than the one the defendant had submitted but it was taken from what i can tell from u s versus alvarez which cites the farmers as brennan case and then wan of the evidence in this case and those jury instructions as a whole and view the evidence in the light most favorable to the government that there is evidence from which this jury could and did make the finding that in fact this was criminal and not just  one second thank just a couple of points i want to and i want to touch the government indicates that this defendant had a long history of alcohol related and offenses and those are outlined in pre sentence report and while that's true i think it's important for this court to know that none of those offenses were entered into evidence a time of trial so the fact that this person had a long history of alcohol related offenses was not something that was a part of this trial record but rather is the record that was only made after trial a time  stands the second thing i think that i would point out and i think that the court has already touched upon this but mr mr reddy gols the alleged comments to his wife to watch the children i don't think of any  way rise to the level of evidence to show that he actually knew that if it is kind of thing going to sleep would result in this sort of tragic accident and it's also i think important to know that although his sister testified that time she overheard him say that to his wife his wife tonight that that he ever made those statements to the way well it wouldn't have to show that he knew it would cause the accident which was that there'd be a risk of it right i think a high probability and it's almost knowing i mean you look at farmer v brennan and when the supreme court describes criminal recklessness they talk about thomas knowing or short of that you're almost looking at a willful blindness sort of situation and they don't know that the that the united states criminal code has any sort of negligent sort of criminal statute that criminalizes negligent conduct as a as opposed to create to reckless conduct  burden was to a spag wish through circumstantial evidence or otherwise that mr reddy equal actually knew or at least knew of the high probability that this sort of action would occur because if you had gone to sleep with