good morning my name is scott freeman and along with co counsel david houston who is present here with me i represent john the gone he represented cow mysel at the trial level and now an appeal i'll be arguing the was the only one prior case the alleged decision that ever involved the acquisition or theft of archaeological resources in this particular case the defendant pellets were accused of  stealing pepper with rocks from a local palace site in reno a lot of the trial if not the majority the trial was related to our defense that the defendants talents that ground they were not acquitted of theft of government profit we see a lot of theft of government property type cases and the elements are very specific and very significant the theft of government property case they have to show of course that property was taken they have to show it was government property and more importantly the government has to show for felony purposes a prosecution a property is valued over a thousand dollars that is  when the government did not produce any value over a thousand dollars in the traditional sense pursuant to statute and of course what i'm referring to is states are market value or cost price court on three different occasions to submit defense special instruction number two which was related to the definition of value then it's reversible on issue number one that you're referring to your honor or related to whether or not  converted into a conviction of a misdemeanor that is correct and then if we prevail and that's the remedy you're seeking and if we if we rule for you on that point actually that becomes a remedy but i'm asking for a reversal and i'm asking for a twenty three eleven and it gives you the definitions i asked the court to instruct the jury so i could argue a closing argument i think the government had not provided those elements of that statutory scheme in six forty one the court said instead of doing that i'm going to instruct the jury that if they find the defendants not guilty of an archaeological resource theft if you will then i'm in essence going to direct them to find not guilty because the value has not been established in that way instruction number eighteen you just decided that the cell case just recently in may of two thousand and five where you said if the jury instruction fails to list the necessary element of the offense that is a reversible error and that is where i'm asking for reversal in combination of the two because if you understand the fundamental argument that in this case value was not established and the government sought to use archaeological value as that substitute which we would submit is inappropriate and not part of the exertion hershel's required because the jury didn't have an opportunity to review or examine the elements of the offense related to the felony prosecution this was a misdemeanor prosecutor asked and i understand that but i mean let's let's assume for the sake of argument that you know concerned were met but for the purposes of reversal there can play stankovic of a felony so for the purposes of reversal if the judge doesn't instruct the jury the way we have requested with the elements of the offense reversal is meant for is what i'm not arguing about that is reversible error that's instruction as opposed to factual error as a matter of law the instruction error should have instructed the jury as to the elements the government was trying to produce they were trying to show of establishing value the government put forth a value so they put forth a family value for purposes of a felony conviction for the purposes of harmless error they would have to have done no value it would have been harmless because they it was on the table it was an option so why do you think we have the option of converting a felony to a misdemeanor seems that what you're arguing is we either have to reverse entirely or not at all well i'm asking you to find that the element was not i know you sign with with  respect your first argument that we have the option of converting it into a misdemeanor and yet what you seem to be suggesting on the second is that we it's a zero sum game if you're falling or nothing i do but i'm not saying that you have the option of reducing to a misdemeanor that is the answer to your question in terms of what's the net effect of your decision i'm not asking for that i don't understand your answer to the first question i'm sorry the first question posed by dr art is that what you're asking for on  established so the issue then becomes number one whether it has the net effect of use to a misdemeanor or number two you reverse based upon the jury instructions and that's really the focus of my argument was turned and convicted on one count t that the government put on evidence of value as defined by the statute that is correct and thank you what i was alluding to previously is the fact that archaeological value that the government cited to is actually a value related to civil damages pursuant to or seventy f f and what that statute talks about as if somebody in a civil context appropriates an archaeological resource and one of the aspects of damage is archaeological value an archaeological value is the cost of doing reports for the information that was lost as a result of the violation that is different than a jurisdictional amount of a thousand dollars either it is or it isn't circumstances if it's less than a thousand dollars worse one dollar it is a misdemeanor i mean that's statutes written and is it a misdemeanor or even it has never been charged as a misdemeanor i do not believe that it is i mean i know the circumstances that the government is an all or nothing situation they charge as a family they didn't charge a misdemeanor in the alternative if we can't prove value they said we can prove value they said we can prove value over a thousand dollars and they didn't and what is significant about that is they have the evidence when i anticipate the government's going to argue in a few moments to you is that because they didn't have any evidence of value using the traditional sense because archaeological objects are so unique that they couldn't find a value that's just that's not true that's disingenuous at best they have the proof and in my brief appearing at the extra printer on on the record at page zero one five four we indicated to you the report of mark body mark body was an individual who the government had retained to do a commercial value pursuant to the that's correct but there was no evidence that our clients incidentally created a program because there was a may or may not have been an englishman but there was assuming that's the case but that goes right to your question which is you know it's not a dollar in my argument it's eight hundred nine hundred dollars and it was a tactical decision by the government not to introduce them so when they fall back on the archaeological value argument and make the argument to you that under the circumstances because it's archaeological value that you should consider and because there was no available market they cited cases citing thieves market they cited cases involving price accepted and he said that wasn't available so please make a new law related to these elements please accept and embrace our archaeological value argument i've got to tell you we have the evidence it just wasn't introduced at that level it is part of the record is available for your consideration and i made the argument to the court below now will tell you it was a very inconsistent ferg in this case because of instruction number eighteen the judge said if you find him not guilty of an archaeological resource then in essence they have not found a value in essence under the circumstance you find him not guilty of theft of government property in this case they ignored that instruction and that's why i say instruction number two was so critical because if you supplemented judges instruction over eighteen with the instruction related to the fact that here are the elements of the offense the government's got to prove this element of value beyond a reasonable doubt i incorporated the statutory language to the government's request a special instruction and i put them together and then when i could see direction the court was going in related to no evidence from the government because i made the request at the close of the government's case and i made a request at the close of the case and the judge loudest time scuse me to prepare our motion for acquittal under all the circumstances i knew the government had not presented six forty one value and as a result of not providing that i was comfortable that we would have been successful the trial court below that's why we've been anticipating anticipating this morning's time to be able to speak with you because if there acquitted of the theft of archaeological resources fans and we litigated that to the point of acquittal and they're found guilty of an offense that requires a thousand dollars or more and you look at the instructions and you look at what the government is trying to claim i value instead of giving you the information or giving the jury the information that they needed to make a determination allow us to cross examine the expert let's see where it lies that was a missing element in this case let me put this up on a practical standpoint  we agree with your arguments and you say that's our only remedy is to vacate convection i go back the government is now wiser about what it means to prove what's on the evidence when you're convicted of a felony and can because of the theft as undisputed the only amount of questions about you so argues you really want to argue to us that our only only option is to reverse the colony and send it back her new trial no i didn't ask for that i asked you to reverse i did gnash turn option i don't i don't see the option  but the thousand dollars required for the statue and that leaves as a misdemeanor and storage we don't retry on the misdemeanor that's the instruction i'm asking for on the first issue on the second issue if you find that the jury instruction should have been giv clean reversal not remand for a new trial and that's what i meant and i'd suggest to you that's the situation it was an extremely close call in response to judge reinhart's question related to harmless error this was not a case with overwhelming evidence related to the al you this was an extremely close call where the government was able to convince the court below to go with the archaeological value which is the cost of garnering information it's not a jurisdictional amount it is a civil damage upon judge thomas question is the government free to retry i my request is that they are not my request is that it is a full reversal not with instructions for a new trial not especially with instructions to retry what we just outright reverse thank you can i reserve some time for but if there is a well if there was a commercial value your honor i would say that that it would it would have been presented at trial if the if there is no other value that can be presented but there is some value such as an archaeological value and that should be a value that should that a court should be able to consider but if there is a commercial then you would be required to show the commercial yes you are i would 'm not asking preferred i'm asking a yes or no if could be required oh require no sir no your honor so even if there is say take a market value you say you can go says there is no if there is no commercial market then another market may be considered and the definition of saying that there is commercial value means that there is a commercial market for writing i would agree i would agree so if there is a commercial market don't you have to use the commercial value rather than archaeological value or some other value then i would agree so then what you make of these the supplemental submission of the forest service experts and i use this commercially one hundred dollars say when questioned about how he arrived at these at these numbers he had no foundation there's no way that this evidence whatever to make it to a jury because when you asked him why why did you bas said his value was based on a foundation because it was based on the current damaged condition it was worth of only one thousand nine hundred dollars otherwise it was over fifteen hundred dollars my only point a commercial value if it was meaning that there was a commercial value of mailable and so we follow the logic in terms of commercial value available for this particular item you can't use archaeological value i would agree but the issue is there w trial as soon as i would have put him up i would have to lay a foundation for what his value was based on and he had no foundation what do you mean there's no foundation you're not an expert his findings were based on were based on anything he had even viewed commercial value and here you've got an expert who says you know undamaged condition these would have been worth fifteen hundred dollars there he was contacted as to try to repair these i mean he's not an expert and he's in this because this commercial value has as much weight as is it coming from the common man on the street we contacted the smithsonian we contacted insurance companies that insure museums we contacted the gilchrist native american false because i think he's a bill is a bill to would not be what would not be sufficient the the thing is now while the defense never has an obligation to put on any sort of evidence they did they did choose to put on evidence since they since this evidence was this evidence that would show it was a value of less than a thousand dollars but they know that it would not it had no mr and mrs ability it had no value and i think they were just waiting for you to hang yourself or excuse me i think they were just waiting for you to hang yourself and you didn't know not necessarily are we use archaeological value simply because that was the only value that was known for these patrick willis mr bottoms report is carries no credibility  he would say well it's worth over fifteen hundred dollars but we did not we didn't like that you know we didn't like what he didn't have that was based on anything so we were i don't archaeological value which archaeological value is made up of a lot of different things i mean come believe that if they put a wanted out of the paper or maybe we don't all buy craigslist today and said fifty bucks genuine indian petroglyphs no one would have bought them i think someone could would have bought well then you got problems with using archaeological value well in a case where there were still i r s credentials in that case that i started there was no market swarm but these are these are indian available they did not put it up for sale they put it in their yard in fact one of the cases the doesn't mean it has known how you why why are you why are you not understanding as maybe because you don't want to fifty dollars fine these petroglyphs long to a native american tribe that goes for cultural history for once when the government stands up on behalf of they try to spin that truth in their culture we're saying well you don't it they sell those kinds of items all the time i mean the question is though statutory and i think where we began with if there is a commercial value you have to prove it and if you're relying on something else you have to prove that there is no purposes of argument that there is a commercial value and assume therefore that archaeological value was not available as a basis for proving value where then are we what are we supposed to do this case is converted into a misdemeanor proof that there is absolutely zero value that these are absolutely worthless stock that that they're worth nothing and it would seem that there has to be some value placed upon it if you if we can't use archaeological value and there is no the well the i guess in this case the defendants would have to request a finding from injury less than a thousand dollars for them to have the the opportunity to consider whether or value the only thing that would differentiate that makes it a and i'm sorry i don't have i haven't thought about the misdemeanor aspect of it but i'm not sure whether or not value is really a issue if it's less than a thousand i've got there's nothing in the statute requiring that that it requires a value of one's ten or more for to be a misdemeanor anything over a thousand is a felony i believe that the statute only outlines the fact that if it's if it is government property that is stolen if it's greater than the thousand then it's a felony if it's not greater than a thousand then it's a misdemeanor right so where does that leave us if you charge the felony elements reverse and let you decide when you want to retry them i'm not familiar with any instances in which the reversal would convert something from a felony to a misdemeanor i don't we do sometimes on sensing issues purely but that's a it's a it's a different well received several phone calls since this since this case because it was very interesting and there are some folks up virginia that are putting together a book and they were very important to sell a book so after the decision i didn't establish that the defendants knew or had reasonably to know that these were archaeological resources an archaeological resource is made up of several different parts now why is that relevant generally an acquittal on that one that's off the table right well not quite and that's that's why that's that's transitioning over their concern was that the ny circuit being the largest that it is in comes to some of the largest largest land areas in the united decision made it very difficult to prosecute these cases in order to prosecute these cases one of the things that's left is theft of government property value itself is not construed to only what was listed in under under so under the statute six forty one i've been trying cases for over twenty years in northern nevada and sometimes i know when it's time not to say anything else at the risk of taking just one more minute i want to say this we litigated this case the core indicated to the government prior to their close of the case are you sure you want to use archaeological value as your six forty one alan the government in case they did and in their view archaeological value was the same thing as commercial value that would stand that's in the record that's not true that's not the state of the case that's not the state of the law you capture a flavor of what occurred in this case you want to stand that from your questions to the government that archaeological resource value is not commercial value now as far as mark body was concerned i just fletcher you indicated and when you read that you saw that they could have called and they could have made him a better witness if you will that discovery came from a package as you know when agents put case together to give to united states attorney they have different elements of the particular offense they want the government to see how they found that element and they knew being the forest service that one of the elements of theft of government on a witness that sort of maybe maybe they decided they didn't want to use him or maybe they decided that in fact they didn't want to tender the witness because they didn't have qualifications that that's a trial judgment but even they disclose that to you then dismiss the case and do what you started to do and litigate it on the archaeological theft of the resource dismiss the case if you can prove provide value don't say to the jury that because we talked about terry burke who was the expert who provided the archaeological resource value in their presentation