sought you have to noon and they please the court my name is joseph martini i'm here on behalf of mr preserve our own we raise a number of issues in our brief as the court knows but i'd like to start with the issue that we raise with respect to premeditation murder and simply charged the statute but the way we see the record in the way we've argued this to the court is that the element of premeditation and the concept of premeditation was which takes which distinguishes at least under federal  law nd degree murder and st degree murder that the issue of premeditation was introduced into the case starting with the government's proposed instructions to the jury and in those proposed instructions to the jury  and what happened there is that that carried forward to the court's charge and this is that pages seventy two dollars seventy three cents of the appendix they carried through to the court's charge when the court charged the jury specifically as to the  th element of the offense when the court was describing the elements of the offense for count two the indictment as to the th evidence element of the offense the court charge that the jury had to find that the death  that person qualified as a murderer as i will define that term for you in a moment and then the court and this is that page seventy eight through seventy nine of the appendix proceeded to give the jury a definition of murder which carried forward from the government's proposed instruction in which the court basically read a large part of section one thousand one  any delineation about whether what the court was talking about was st to be murder or nd degree murder and significantly charge the jury by defining and reading the definition using the word premeditation so what i would say to you i thought you were identifying charging error by the district court did i misunderstand that or you were saying that the court fed the st the premeditation was an element of the offense charge what you think know it it introduced the concept of premeditation by defining that as an element when i read the definition of murder let me just me back up one step i've read these two you didn't ask for any charge on this so now you're telling us that the judge introduced the premeditation requirement at in its charge and but and you're saying that therefore the government had to prove it because the judge charged know i'm saying yes exactly did the if this was if this was a nd degree murder case or any other sort of degree of murder or whether the court or the government wanted to leave it to the sentencing judge to determine whether this is a st or nd degree murder the judge charged in extraneous element that the government did not in fact have to prove how does that heighten their burden but the does no indication that this is a this is a moment that the government didn't have to prove they didn't charge st or nd degree murder the that's the case why was there anything higher than what would satisfy nd degree murder because the because they allowed the court to charge the jury that an element of murder which is now so let me stop back to my original question i thought you were alleging charging and now i'm not sure what the charging error is because you're saying the judge did not charge premeditation for example are if it wasn't required to do it all how is that era but we're saying that the concept of premeditation was introduced into the case by the by the way that the court to find the element of murder if this was just that means you got a benefit not that you got harmed no because once you introduce premeditation into the case that i've submitted that changes everything because the charge on premeditation which i've got it i've got a copy of a charge the judge drona gave in the in the current case that we cited in our brief the charge on premeditation is an act is done with premeditation if it is done upon planning or deliberation in order to satisfy the zone that the government must prove that the government that the there's a tape in which your client standing over the body on the street pumping the bullets into land and it strikes me as difficult to argue that this and and the chase started without any without any instigating factor at the time the only instigation was events that happened sometime in the past so how how does this not satisfy premeditate i think your honor that the balkan bounce either way when once you introduce premeditation into the case and you go through the factors and i agree that the amount of time can change when you start talking to the jury about whether there was planning  direct evidence of an advanced intent to kill planning preconceived design a search planning and searching out for the victim somebody that had a cool mind and head of the chance to reflect and make these arguments to the jury the defense is not make these are you this is a part of the problem you didn't challenge the charge at the time you didn't even argue to the jury that the facts wouldn't be enough to establish premeditation and yet now you're making this these arguments to us now starting with your initial concession that but for this charge the government wouldn't have had to prove premeditation but i think at the time during the trial counsel was focused on this being a sensing issue quite frankly and that's because if you look at some of the colloquy with the court they were talking about whether this was a sensing issue but when it got to the point of actually charging the jury i don't know i don't know how you out without an objection you're into plain error and i'm not sure how you can show pla murder it's not ok it's not a covers both but if you're going to charge it as nd degree murder a st wiemer there's a way to do it for example of the court really wanted this was a nd degree murder case all the judge had to do and all the government had to propose was to read the very  st sentence of that statute that's the definition of murder the federal definition every other aspect of that definition including what the court read which included the word premeditation relates to st degree murder that's the argument you limits are as in this case when there was no evidence of drug trafficking at the time of the shooting and in fact there was no evidence of drug trafficking in the three weeks prior to the shooting because the we were  know it's three weeks back that there was no drug trafficking on these two blocks and at the time of that shooting you go back three weeks there's nothing going on but there's also no evidence that they intended to resume trafficking and i think it would be speculative intended to resume we've looked at the record and we can see that testimony and we saw one snippet of testimony from one of the quotes as you said that he would have he personally would have liked to have gone back to drug trafficking but i think that's a stretch to go from that s argument to the jury i suppose but to me it speculative about whether the just because they were dealing drugs for a particular period of time this murder happens and they go back out to speculative as to who's who does it what what the conspiracies going to but why is why doesn't that allow the jury to assume that they were in hiding because they were afraid they were going to get killed by a rival drug gang and when they saw one of the rival drug gang people they shot him dead because they needed to eliminate these folks to resume their activity they weren't interested in remaining in hiding forever but in the mean we are we are now not talking about our ning gauging  circumstances is that right there maybe in the context of the cases that your honor is mentioning where you've got to show an affirmative act of withdrawal and do something to clearly remove yourself from the conspiracy but when you i think when you're talking about a proposition the case was a little different than the argument they were making here which is something similar to a case where premeditation is actually charged in the indictment because here as i was talking in response and same response it was roger's questions are our position is that premeditation was injected into the case not that it exists without some sort of charge or some sort of mention during the course of the jury instruction so i think that's a distinction but i think that that issues before the court now but this one many good afternoon your honors and may it please the court my name is shawn crowley i represent the government on appeal and i also represented the government in the proceedings below ruben bizarros shot and killed david rivera on november and fifteen in broad daylight in front of a daycare center in the bronx the murder was cold and calculated and certainly premeditated it was the culmination of a years long rivalry between  rivera and his drug crew and it followed what the district court referred to at sentencing as a spree of violence that played out in numerous shootings back and forth in october and november of that year oh  out to take over the drug territory on arthur avenue in the bronx it was a drug war one of the cooperating witnesses testified in those exact terms repeatedly a trial and the murder as judge reggie pointed out was pu request to charge introduced element is that correct your honor what our charge when i request a charge which as your honor pointed out defense counsel below did not object to in fact they know i'm just trying to find out was it the government that urged the trial court to charge premeditation to even discuss premeditation with the true mary it was your honor our proposal was just that the judge read the language of section one dollars which is of course the definition of murder that's incorporated into nine hundred and twenty four what didn't get read and what i'm trying to find out if you asked to have charged was the very last sentence that says anything else   nd degree murder that was not read but the judge but that you asked for it to be right no your honor we didn't so we're back to my point you asked the judge to charge this only in terms of premeditated murder well but your honor the next part of the charge when the district court is defining malice it's clear the district court says intentional murder there's no requirement that this murder be intentional it can instead  no course malice aforethought doesn't require intention that the person be killed it requires reckless conduct or wanton disregard for human life the district court did instruct that in any event the evidence here was absolutely overwhelming that this murder was premeditated as judge reggie noted there is video of shooting rivera again and again even after he falls down and tries to get back up but the evidence begin the evidence that this was premeditated began long before that the there was shootings back and forth between rivera and possess for years on the morning of the actual murder spotted rivera he was told by his leave it alone he said no he didn't he i'm going to get back at him essentially for the shootings earlier in the month he crouched behind a car cocked his gun and then chased him down the street shooting him in the back repeatedly as the district court found at sentencing when the same argument was made with respect to the guidelines on the drug count this was the most premeditated of murders so your honors and with respect to the argument on the drug nexus i think you're not judge is absolutely right there was absolutely no evidence this that this conspiracy ended and in fact the murder itself is plainly sufficient evidence that from which the jury could infer that this conspiracy that possessed and his coconspirators intended to after they eliminated their rival go back to the block retake the drug territory and continue sell there were periods there was testimony at trial that there were periods on and off throughout years in which his are i would come to the block start selling drugs engage in violence with with the hughes avenue crew of which david rivera was a member and then leave for a while or stop selling for a while when the block got hot he would then come back again and reengage this is exactly what happened in august of two thousand and fifteen when he came back when he started selling drugs and when the violence started there were three shootings in a row  nathaniel torres testified that position he and his r o had to get off of the block for a while to protect themselves they moved together the two drug sellers who sold every day on the block moved together to a new stash location a couple blocks away they brought their guns with them the same guns that they used every day when they were out selling drugs and when they happened upon their main drug rival they shot and killed him so that was plainly sufficient evidence for the jury to defendant must have acted consciously with the intent to kill another person however in the government need not prove a subjective intent to kill it would be sufficient to satisfy this element the element of acting consciously with the intent to kill if the government proved reckless and wanton conduct on the part of the defendant which grossly deviated from a reasonable standard of care so all of that is an explanation of what it means to evacuate consciously with the intent to kill or my missing something that's correct your honor and that was that is the judge never charged them that they didn't have to find that he acted intentionally it's just he explained that intentionally could be have to find intent is not correct that's correct your honor but he didn't have to charge them as your understandable if anything what we did by by submitting this premeditation charge of the jury was increasing our burden which we clearly met but the judge the judge didn't have to charge them that that premeditation was not required even though the statute doesn't require you coming to the end of your time and i have a question for you about your response to the and why isn't that then takes us to it was forfeited in the district court and we deal with plain error that in any event clearly there is not point here ok so so you're saying you would succeed on   and then going to the jury with a special verdict form which says you have to be unanimous as to whether the guns were brandished or discharged without tying that special verdict form which the government has a burden to propose to  that to a specific one of the specific shootings and then not giving the jury instructions about whether they had to be unanimous about finding which shooting they were finding that they weren't including in this count the murder count that was committed clearly they carved out the murder yes nurse and they only purpose american i could have stopped if they had which was brand that having done that having having gone to the grand jury on that count and having presented that to the jury without any specific unanimity instructions with respect to want to jury had the final of the specter that count insofar as those particular  guarantee that the the jury verdict was unanimous so i think that's the overriding out of waved it because as i said rule twelve's been amended but you had an opportunity to ask for specific findings and you did case from the go it was the government's burden to present a special verdict form here not our burden in that in that particular circumstance but that's a minor point in a sideline to why do you think it's the government's burden to provide and present a special verdict form there's a specific requirement in rule twelve that if you're complaining about the facts in the indictment you have to raise it talking to a different point i mean we didn't raise it under rule twelve clearly but when you get down to the reason why reason talking about it now is because the cases say that even if you don't present it in the context of a rule twelve motion you can still raise it because there are other concerns it at play like yes or like un