good morning your honor my name is jennifer wells and i represent the appellant for me that we need a blunt and i have preserved two minutes for about a break in this work to peel ms blood has argued that she was wrongfully convicted and sentenced and she's raised five issues attacking her conviction and sentence i'm mindful of the court's directive prior to argument and then the further elaboration today and so i'll begin by focusing on the duress issue and then of course time permits time to the sufferance issue to begin testimony which is that the pages seven ninety three and seven ninety four of the record is that she she perceived that there was an immediate threat she there's a perception how it would have to be a reasonable  certainly but her testimony which was on contradicted by the government was that she perceived a threat she believed it to be real and that she acted upon which the threat from because there seems to be some ambiguity in her testimony as to who might represent that threat and that may be really important or at least relevant to the immediacy aspect here that's right your honor and actually if i may refer specifically because that it's a very brief portion of her testimony but very important and i don't want to misstate her testimony if i may grab those if you use the page number of it's peter seven ninety three and seven ninety four in the appellate record and  i understand the discrepancy or i don't know if it's a discrepancy i understand the two different statements that the court is is likely referring to initially her statement on page seven ninety three of the record was in answer to the question  winds four and five on page seven ninety three she stated again this is in answer to the question what was mr hall saying to you and her testimony was there was that there was going to be problems and then he told me if i didn't make this call that he was going to kill us the he becomes kind of the crucial work because several lines down the line one thousand to twenty again she was asked what were you told that people was going to bring harm to our family they was going to pretty much kill it's necessary he becomes a brewery unspecific told them this obviously i think the concern is from my essentially what did you think that meant the whole household is her answer what is clear from her testimony and what didn't change at any point was that the speaker the person who conveyed or called the information to her about a threat was her husband would what i'm interested in hearing from two points one is if you agree with me that this under our own case on the third circuit is a high hurdle for your client at least with respect to the immediacy aspect of the test and we've we've said in one case in allston only in rare circumstances will anything but an immediate emergency constitute present threat that's a high her isn't it and if it is  or even if you did not agree with my characterization what is it about this case that allows you to meet that test well that's multiple questions she does math and i'll do my  you to meet that test ok well first of all i think the sort of the heightened level of scrutiny if you will that seems to be applied in some cases to the defense of duress seems to take place most frequently in felon in possession cases so the allston case and so many other cases this defense is raised in felon in possession cases i carried the gun because somebody yeah and this court and others have held defendants in that specific factual circumstance to a very high standard the immediacy needs to be to be very short right so i don't recall whether it's the allston case or perhaps one of the other felon in possession cases that i reviewed police argument but to the extent that an individual who is not permitted to possess a firearm feels that they are threatened there has to be a a momentary there needs to not be a significant lapse in time i would agree that there's nothing you know cases that somehow suggest that a different test is applied in the felon in possession cases and i'm not opposed to a case like this you just that they happen to preponderate in our case law of among those cases that are immediate emergency i would agree i would agree and so with respect to my client i think it's a you know it's a very fact intensive inquiry and so her testimony was she's in her her home husband has told her that there is a threat either to him or to their whole household by someone that they will be harmed or possibly killed if she will not help them by making this call so it's a subjective state of mind at that point well as thinking right right her so if she has to reasonably believe that there is a threat that directly then causes her to take the criminal action and she has to that the standard is there has to be no reasonable opportunity to avoid the harm without committing the criminal act there's also testimony support that she suffered chipped tooth and the husband's very hoping her spouse looks let's go to that proceeding itself for a perhaps more accurately that stage of the proceedings am i correct that the severance motions pre trial were decided in cairo in the papers yes it was no hearing no world are you that correct they were decided approximately a week before that no less than a week before the trial began we are required to look at the condition of the record to make a decision in a vacuum either she has to deal with what's been presented to her but it may also be that the district court here should have required mor conjectural matter to try to determine how this is going to play out in a court but that's exactly what the district which job is and who do you think that from the papers suggesting the marital relationship and the dilemma that was presented to your client that that should have been some kind of a signal to the district court that the district we're really needed to probe more here why absolutely are we were welcome the opportunity to have an opportunity to elaborate on the papers with the district court to answer the court's questions but fundamentally what my client represented through counsel and her pretrial pleading was that she was married  if she testifies she's going to in cold pay her husband yes yes and that was that was the fundamental dilemma presented to my hindsight the desire to exculpate her softer on testimony but that her own testimony exculpating herself would simultaneously in here right right absolutely and so right under zero you have to be contending that what we have here what the district court had before her was were mutually antagonistic defen attorneys right so how were they mutually antagonistic well my client maintained that she the one and only action that she took in this case which was placing a phone call was at the direction and under threat from her codefendant i think that is the antagonism between the two in addition what emerged at trial was that she felt it was exculpatory for the jury to know that she had reported what persuades she perceived to be suspicious conduct by her or her then boyfriend now husband to law enforcement in two instances well and but it in addition to the defenses being mutually antagonistic she has to trial whether or not she would testify here she found herself on the horns of a dilemma and determined that it was best for test absolutely absolutely but worrisome with the murder privilege to what extent if at all with honor judge rambo in this case your honor i think reached the appropriate and only conclusion with respect to the apt ability of this affirmative defense directs there are four clear elements arguments of counsel after she heard we need to balance testimony she really went into the charge conference but she concluded number one is i believe this court had some questions that there was no immediate threat of death or serious injury here presented by the testimony of her need to blent as though they were also in case makes it very clear this must be an immediate emergency and that certainly wasn't the situation we were talking about a host in the wife alone in their home in illinois talking about what might happen to them by third parties if they didn't make this phone call when to leave it where they has been in life and not at that time no your honor they were not became  in two thousand and sixteen this was in two thousand and fourteen when this particular phone call to points but they had been cohabitation together and they did have children judge rambo not only found that there was no immediate threat of death she also found there a second requirement missing and that was there was no reasonable legal alternative to engaging in this criminal misconduct she noted that this blunt testified think this first request for mr hall to make this phone call took place two or three days before the actual date the call was made he repeated his request and finally on the on june twenty fifth that's when he started telling her about this threat from the this criminal phone call and i think the third requirement that the often court a story about this fear must be well grounded this wasn't a well rounded fear it was her husband telling her something something about somebody undescribed who might harm them kill in fact the whole entire family two adults and five children over the failure to make a phone call kinds of thoughts from sometimes get carried out of turning are think there's a subjective component to this but all in all i think the court also has a duty to look at this from a reasonable objective viewpoint in deciding whether or instruction and indeed and and i think it was relevant germane to the court's instructions with respect to the intent requirement of the mail fraud and money laundering charges bank your honor we must look to the time the judge rambo had when she made this decision and this court has become to determine that this was a clear up use of discretion  that this was an totally unreasonable for judge round to do and i think under the circumstances based on her careful whistling to that testimony she made the right decision but both issues we want to hear from you on decided a severance question in explicitly context of a conflict between the right to testifying and the privilege of the marital privilege that's the scenario we have right i mean you had the wife in this case confronted with a decision and i'm going to testify and present evidence that i know is going to be in copa two or to my husband or not so she's forced to choose between one of the other right it is and the judge knew that and the judge knew that why should she have to choose because they should she be put in that position because it is the difference between a right a fundamental right and a privilege and what this circuit's case law into farrel has instructed is that the court must look at the following factors the likelihood of the fan testifying she affirmative represent she was going to testify if she did win and she in fact testified well what specifically would happen a week before trial there was a written proper put forth that detail be exactly what this plot was about to say four days later a second motion was filed for severance this one by mr hall in that motion that detail proffer we presume that's the way it's going today and we responded to the court by focusing on these factors that came out from this circuits trilogy of opinions in two real fundamental right is being infringed upon here in this conflict situation the right to testify and what you look at is whether the proper testimony of the of the spouse doesn't fact is in fact testimony and when you look at exactly at the proffer where mr blunt was going to say i'm going to admit i made a phone call to the pennsylvania department of labor and i'm going to net i impersonated another individual and i gave them maintain is important here that you're making exact difference between a fundamental right and a privilege and that's the distinction that this middle district made in the fairer case in two thousand and eight after our trilogy came and the privilege it's just a million privilege the question is whether or not the party is suffering prejudice to all right as your question the into my question where you have to surrender that spousal privilege well all your honor when you look at the overall context of her testimony her ninety pages of testimony it dovetails with mr hall's defense will straighten out and that surely you can see that there is at least fact defended blunt's motion and brief upon which made its decision lay down the prospect of some testimony of a threat of violence wouldn't you conceive day after the larry least i'm absolutely but your honor my point we're trying to make here is that plants testimony got incriminated mr hall really was to the jury if it defensive he presented to counsel in closing argument was that this wasn't me this was somebody else these checks that were mailed to illinois for which i was convicted the mail fraud were m the closing argument of defense counsel was pretty brief and targeted toward that area the two ships referred to so i am taking what you're saying  being that this testimony actually you say it helped there it didn't it it really directed defense counsel in a specific way toward a specific defen strategy or at least tactic which he did cook up in his hearing your own i think the proof of the pudding here's to whether or not this blunts testimony was really hurtful prejudicial mr hall and i don't believe these  testified for some ninety pages i don't know two hours or more went the first person that had an opportunity cost me sponsor about her testimony was mr all his counsel two questions his bank card yes thank you very much no further questions again her testimony was supporting his defense that this was a third party and then third party and that force card to her probation officer and then judge graham also water to see that you report to a second person but that wasn't specific good geared to a you know this false claim the unemployment benefits claim she described as a debit card are lying on a table the bottom line in all of this is even if you determine the judge rambo abused her discretion they still have the defense still has to show a demonstration of clear substantial prejudice resolving  bottom line even if you conclude that judge member will be used for discretion in keeping this these trials together it there must be an affirmative demonstration of clear and substantial prejudice resulting to either miss and more importantly the financial evidence follow the money the benefits that repeat in these claims wound up in mr hall bank account and that's the bottom line there was no pre hear from wilson thank you again your honour's the place of the record where you will find the proper that we've been referring to is in the joint appendix filed actually by mr hall in volume two at page fifty nine paragraph five i think that's the most a saying to page fifty nine of mr hall's volume to join appendix there are a few points i wanted to address that mr daniel raised and there was a question actually was there a curative instruction from the court on the issue of durant's and there was not doubt that that was and said well it wasn't curious i was confused and thinking about the instruction that is applicable to severance here and keeping s yes i did want to do with you because the court had raised the question of instructions from the court i think what i'd like to leave the court with on the issue of duress is what the instruction to the jury would have been and it would have been very important in this case  only one act by ms client that was testified to at the trial she claimed she committed that act under duress what the jury would have been told had judge remember given the instruction is that she bore the burden of proof on that defense by a preponderance of the evidence not beyond reasonable doubt that explanation was not given to the jury and that would have been a complete defense right in other words they could the jury could have concluded that she committed that act but was nonetheless not guilty that instruction was not given that's an important point and that's from the model circuit instruction so that that the instruction would have been that is not in dispute in this case just briefly on severance mr daniels presenting to the court that there's a huge difference between the right to testify and the privilege against a commish against  spouse and that there is somehow this choice that could only be resolved by having the kind either testify or not but there was another option available to judge which was hold separate trials there are only two defendants in this case yes there's a cost yes there's  inefficiency but that would have been the perfect solution to resolve this dilemma on behalf of my client i see that my time is up my course happy to answer question at trial this will be taken to trial you claim as difficult say it was a five day trial and inclusive of jury selection and deliberation i thought i'd i think the government may be in a better position to answer that question so thank you ana thank you very much