and it's the one issue raised by ms the moment where the government and and i disagree as to the standard to review and whether a harmlessness error analysis attaches to but after reading the government's twenty a j letter that that it was missed up until that point to be perfectly honest with you i think it's probably the most stuff the most on point case but as i was preparing for this argument it's it as i was reviewing the materials it dawned on me that  no matter what the standard view may be no matter what harmless error analysis this court may impose the conviction still needs to be overturned sometimes it helps to go back to exactly what happened the district court here instructed in a stand alone instruction and appellants e r it thirteen instruction courts instruction number twenty three a stand alone instruction the district court instructed the jury that it could find ms muhammad guilty of all five counts and then listed the things the jury would have to find none of which adds up to a crime it's just not a crime the fact that this is a stand alone theory of liability can also be seen as penance excerpt of record at forty four when the government begins its closing argument it lists these three separate ways in which the jury can reach guilty verdict and the government actually says in addition to aiding and abetting you can find defendant guilty of making and then goes with the causation instruction so the government's talking to the off that going hey look in addition to that aiding and abetting there's another way that she can be guilty in the streets the street causation causing a crime to happen there what did you show language was needed in the instruction well actually there's some great language  the government cites a case called waldo and this is a case also where section two aiding and abetting instructional error was raised and involved oh it's six ninety nine this was the instruction actually given and this was ok by this court obviously that is whoever willfully cause an act to be done and this is important to me quote which if directly performed by him or another would be an offense against the united states and quote something along those lines because when you look at the actually instruction given to the jury mr muhammad someone has to commit a crime but there's no requirement that the jury has to find that ms muhammad knew that someone committed a crime there is no requirement that ms muhammad cause something with the intent to have a crime committed there's just nothing there it's just that abetting there certainly is whether you want to see is overwhelming aton knopf that's all well and good here's the answer to your question sir the harm any harmless error analysis done in this context there are analysis here is are we certain given what the jury found that it necessarily had to have found other elements that would constitute a crime and that's a wholly different harmless and there a talk about look we need an object we need an object yeah you know in the language it's kind of weird you know this race all finding the object but if you really think about if you read the griffin case that i cited in my reply brief i'm sorry in the opening brief and then you actually for example go to california of the royal which is cited in the police case the harmless in their analysis you have to go look what do we know the jury found right what's the minimum that we know the jury found and first two counts they jury found her guilty correct no there were no i disagree there were five counts well she was found guilty of the first two theories i don't know that and and  convicted the jury that's the problem is we just don't know we can speculate right we can say it's more likely than not they they thought she subsequently committed the crime it's more likely than not that she was made or better as defined in the second theory but that's not a role that's not your role right she has a right to a jury finding there has to be an underlying jury finding from which you can find that the jury necessarily would have had to have found up to a prime and that's just not here well either way though we still have you still have to get over her either it's harmless if it's directly needed or it didn't affect her substantial right to the evidence here is again  page four seventy four justice scalia discusses what type of review applies here and it just it's not a question it just isn't it's just not a question but let's talk for a minute but i wonder if you could answer his question a little more directly ok there was a lot of forget about the cases for a second forget about the standard we're all familiar with the standard there was a lot of evidence in the record that she knew that the statements she was making to the bank were false there i agree there's more and  theory like how would what what's your argument for how the jury could have concluded that she didn't know that the statements that she submitted to the bank were false because there was an argument made by defense coun that she didn't know that was the defense at trial and the instruction by the district court given what evidence of what evidence supported the idea that she didn't know that this information was false you know i am sorry i don't have  aliens forced her to sign the papers and if there was no evidence to support that argument then you know the some error the didn't allow the jury to consider it as harmless  i mean just because the lawyer argues something doesn't mean the jury might have found that argument to be true no and here's why i think ok again sorry i don't have your sights on me look that was the defense it was resting on something more importantly well more importantly sir it could have been the absence of proof and you don't know that is the problem you can't go back because there  over time if there's any other questions ok thank you thank you virtually all instructional errors other than a defective reasonable doubt instruction are subject to harmless error analysis and specifically in that case it was an alternate theory error which is the type of error that is at issue here but the court said we've held that other types of instructional errors such as misstatement of an element omission of an element omission of intent those are all errors that are not structural but rather trial errors  as the same question i've never seen it to be a theory of liability alleged well how does it why was it necessary and how does it fit in this particular things yeah i discreate sapelo dishes for review there are typically that theory is used when you have and unwitting individual who's involved so let's say you have a tax preparer who prepared well on your and that wasn't a theory i think that the concern add of an abundance of caution is she signed the statement but she didn't physically give it to the bank she caused that act to be done she didn't really like cause it to  here had to be harmless because the jury could not have been confused this was not first of all clearly it a causing case and moreover the only contested issue here was knowledge and the jury couldn't have been confused that that's what they were required to find you know basically the defense argument here is if you look at this one instruction in a vacuum doesn't state the knowledge but this court and the supreme court have repeatedly said that that's the wrong an you have to look at the instruction in the context of the entire charge and you have to look at the charge in the context of the entire trial including the arguments of counseling the evidence and then question for you  instructions that they use for these saying well first of all your honor i don't i'm not conceding that it's wrong because causing an act to be done is not a standalone offense and the way that i would explain how this charge had to repeat the knowledge element because section two big just goes to the actus rei it's it's it's it's a different way that the jury can find the actress reyes is satisfied in this it's very similar to a jew instruction in this case there was a jewel instruction on knowledge and that says here's a different way that you can find knowledge you don't have to repeat all of the other elements of the offense or you know the structure that was given the instruction was first the but there certainly could have been any confusion here that the jury had to find intent and knowledge if it was instructed that the defendant that that any causation theory had to be done willfully meaning deliberately and not carelessly that was her defense that she was careless she didn't read the documents there was a big stack of one hundred pages so in other words you can't willfully cause somebody to commit the crime of making a false statement to the bank unless you know the statement to the bank that somebody is making this offer that that's absolutely true and this is not a case where the element was never given the why there is no dispute that the jury was correctly instructed on all of the elements of the offense including knowledge the claim here is that that should have somehow been repeated in this section to be instruction but when you look at the entire charge in the entire trial the jury simply could not have been confused that they have to find knowledge they were told the elements the causation instruction included a willfully requirement and if you look at the closing arguments that was basically the only issue that was discussed in the defendant's closing argument it was the bulk of the government's closing argument because that was the only contested issue so i would submit that this case is pretty similar to the supreme court's park decision that we've cited in our brief that was a  supreme court case where there was a president of a grocery chain who was charged with adulterated food violations for contamination in their warehouses and he said well you know that there were isolated parts of the jury instruction that suggested that he could be convicted just for being the president of the corporation which is not the law and the supreme court said no if you look at the charges the whole it was clear that the jury was advised that he had to have some authority and responsibility to deal with the situation and in particular the supreme court cited the prosecutor's summation and said you know that the jury could not have failed to be aware from the fact that that was a major part of  main issue was the defense accountability for these onset of terror conditions and not simply whether he was the president of the corporation but i still question following up on that you russian the both judge were lawn judge paez had and this stems from my frustration as a district judge  do you ever go back to your office and send around an e mail and say hey you know i just had this argument and can you guys like be a little more thoughtful about you know the instructions you're offering  at trial and think don't just serve blindly submit in instruction the follows the model even if it doesn't have any connection with your theory of the case a trial that is a great question your honor i mean i really think likely and it is absolutely true but you're office i mean your office never should have submitted this instruction you know defense counsel obviously should not have agreed to it and the judge reviewing it should have said this instruction doesn't fit the facts of the case i'm not giving this instruction but i feel like my experience i think is similar to theirs in that you know the u s attorney's office up north is just constantly like blindingly blindly submitting these instructions without thinking about whether it fits the theory of the case or not well i can't speak for the northern district but i am a member of the appeal section in the central district and i can tell you that our practice is every month when we look at the issues that have come up in our cases we definitely circulate throughout the office and concerns that have come up in those cases to let us is in the office know hey you know here's an issue that came up this is how it should be done or you know hey you might want to think about the let's talk about another one i think is pretty clearly an error that was exclusion of the defense witness who would have testified to this ames i mean isn't that something that should have been admissible well your art i would say two things about that first of all i think that everybody agreed at trial that this would even if it the only way it could possibly be relevant is if somehow this other individual family organ had a and am allowed to recruit individuals and then have them unwillingly sign with all the arguments wasn't going to she admitted that she was a straw buyer that the really relevant piece would be that she and within the sign false loan documents there was nothing in the proffer that she and willingly sile signed false loan documents so given the proffer that that was made the district court did not abuse its discretion under rule for a three because simply the fact that she was very different than four or four right well enough even if it was admissible under rule for a four certainly the district court did not abuse its discretion under rule for a three because the actual proffer was of minimal probative evidence at best it would have created a potential mini trial about what evans knew regarding these false statements and i would also point out your honor it's not even clear she would have testified she was appointed counsel given that there were clearly some potential fifth amendment issues and the court didn't reach whether she actually would testify given that a big screw to the evidence but you know as this record correctly pointed out you couldn't call a government witness to say hey you know i signed those false loan documents and i knew that they were false so the defendant did i mean the inference here is not kind of setting up a straw man i mean when it when the defendant is being charged with a crime and their liberty is at stake i mean isn't the analysis a little bit different it is jamie want to call a witness correct but you still have to look at does that proffer show anything about her intent and the fact that somebody oh i got i get it i just want to hear the problem i had with the district court's analysis is the point that you just made which is well if the government wanted to call the witness to show the opposite that would never be allowed i don't think that's the test because i think we have to there's a lot of the defense has a lot more leeway to put on their case somebody that's true but it's because the proffer has nothing to do with the intent that we have to show and the same thing was true here and even if it was excluded it was clearly harmless because there was compelling evidence that she knew that these statements write perform the act of ordering the commission of a crime deliberately cause the crime of making a false statement to the bank to be committed while i just don't understand how that instruction does not call upon the jury to conclude that she knew that the information submitted to the bank was false assuming that the theory applied to the case at all well i mean you could parse out if  only thing it said was willfully ordered the commission of the crime but there's also a it's an or statement or otherwise brought about the commission there's nothing there's nothing in there that says that she needs to know the crime occurred she just had to a done an intentional deliberate act where  lies brought about otherwise brought about across that that's not a crime you know just to have willfully brought about the crime not she has to have wilfully done an act that brought about the crime she has to have willfully brought about the crime that's what the instruction says i disagree this is structured says that i mean it's there in the record says willfully brought about the commission of the crime that's what it says there's nothing to agree or disagree about it's that it's what the instruction to us well ok it's a second the defendant willfully ordered directed or otherwise brought about the issue of right right ok you would say that the defendant knowing a crime would happen wanting the crime to happen anything knowing one committing a crime anything in there what i'm saying is that instruction you could do something intentionally and there's no requirement that you have to know that you're