cross the border and deliberately chooses not to look at the back and see what's inside those are the cases those cases are the reasons that we have this is so called ostrich instruction but here the jury was allowed to find it doug evans knowingly voluntar joined the alleged conspiracy by deliberate ignorance and that's just an end incorrect statement to circus law but the jury received three different versions of this deliberate ignorance instruction and all of them were incorrect  yes i know the st time there appears st time it was mentioned there appeared not to has been a time to object but at the next conference when the district court announced it would give that  long and i'd love to clarify this is a four week jury drop and the charge conference happened on friday with the closing arguments to happen on that following monday morning at the shore conference there for four weeks a trial of the district court circulated draft instructions to both the government and to my defense counsel and that draft didn't have any deliberate ignorance instruction whatsoever and that's clear from the transcript and this records that the transcript is a three thousand and six dollars total both counts so i want to be clear that there's likely not going to be any changes but then told if there is a toll council the council to make the written objection by sunday at noon with the jury instructions on the closing arguments to happen on that following monday and so by the sunday at noon deadline there was nothing for defense counsel to object to because a deliberate ignorance instruction had not been inserted and the most the defense counsel could do was object generally which is what defense counsel did defense counsel cited two united states versus mitchell which is the case from the circuit in two thousand and twelve where his court notes that in conspiracy cases the deliberate ignorance instruction should be used sparingly it should not be given routinely and it should be given with significant prudence and caution and so the district court came out of that monday morning with jury instructions included hard and give fifty two pages of final jury i my recollection is that the that charge conference happened on this friday and that the district court began the conversation then on that monday morning just before the jury instructions were to be given and so the whole issue here i'm stand with my friends on the other side and say but as a practical reality there's only so much defense counsel can do and it just recorded that monday morning comes out and says i've made these changes i've inserted other things to this fifty two pages of final jury instruction and this report doesn't mention anything about this so you are so i ask mr understood the record so when they jury when the judge decided to include that instruction he did not tell me that that is my reading of that transcript of the closing arguments on that money monday morning your honor and by all means i welcome my friend on the other side to try to correct the record but that's absolutely my understanding of the record you and the record is you never objected they never objected at all i mean once the erroneous jury instruction was given that seems like defense counsel is required to put on the record an objection to the review you know view of all the facts of the case which appears to me that doesn't seem that there's a lot of doubt about the defendant join that my friend on the other side cites to the district court state and i believe their sentence that there was overwhelming l evidence five mr have knowledge there was not overwhelming evidence that he voluntarily knowingly joining the conspiracy i like to think of this as if there was such overwhelming odds overwhelming evidence that he had not knowingly joined this conspiracy then the prosecution wouldn't have had to have requested this instruction right now i hear what you're saying your honor and again i just as a practical matter i think to the fact that the district court originally didn't include this instruction the prosecution objected in the written writing objected to particulary required by the lord philosophy so the question is whether the incorporation doctrine saying i agree with the government there are no magic words specifically required to invoke the incorporation doctrine the agent should not write legal ease and say for example i hereby incorporate this document by reference but even because magic words are require it doesn't mean that just any language on the warrant will do growth tells us that there must be appropriate words of incorporation and i think in this case there are three things that doesn't control the outcome of this case st bransby the obama's decision was decided on qualified immunity grav the surgeon baranski happened in two thousand and one and the supreme court's decision in growth came out in two thousand officer who started it said i brought the yes the daddy did i brought the attachment with me and i explained it to mr evans and then mr evans and his counsel consented to the search isn't that what happens if i may your honor so there is a full transcript of a hearing on this issue and what happened was the st two of the three warrants that issue were simultaneously executed by the government  manifest and justice as required on plain error if you i'd like to jump to why this is in fact plain error review in light of the court's questions and i confess that the record could be clearer on exactly what happened but you can see and are too and that's the transcript of the charge conference and as my co counsel are opposing counsel noted that was on friday the court held the charge conference and the government agree is that the instructions at that time did not include a deliberate ignorance and struction and fact the issue was the district court said it wasn't going to decide that issue right now it was going to take it under advisement and e mail later that day then the parties would have until sunday to file object and so it was it was not the case that nothing happened between the charge conference and monday morning unfortunately what happened frankly is not docket the court indicated that it was going to email and then on monday morning what the court it was addressed some objections by the government that had been filed on sunday as the court required on friday afternoon those objections had nothing to do with deliberate ignorance once those a result the court's clerk put on the screens the final instructions now those everyone agrees at that point monday morning did contain the deliberate ignorance and struct to the court announced before placing them on the screen that i have added to deliberate indifference instruction the monday morning there's nothing in the record of the court making that announcement i would suggest but that's morning is that with the instructions on the screen there is certainly no indication of a change in the liberated it's instruction at that time whereas there is no indication from the court that there are changes responsive to the government's intervening sunday objections which is itself suggests that there was no news on deliberate ignorance and structure and on monday morning  one steps up the there on the monitors the court instructs the jurors and again there's no objection during that time i should jump back because actually after putting those fi on structures on the screen the courts sif a cli invited objections this is that  read again no objection at that point and importantly after the instructions were finished after the court finishes reading of this is at our two  and forty two the court said as do we have to side bar anything before we start and other words before we start closing now that i'm finished with instructions do we have to sidebar anything here's another opportunity to object outside the jury's hearing to the written instruction or to the oral instruction if they thought that the court's reading had departed but again no view here i would suggest that the instruction was incorrect that it was wrong so what had do you overcome two things i think for one under any standard you're looking of course at the instructions as a whole and as our brief points on the other parts of the instructions to make clear that the defendant had to volunt join the conspiracy we think looking at the instructions as a whole this accurately adequately and fairly represented the law but of course on plain error of view that's not the standard the standard is whether it's such an egre as to lead to manifest in justice which brings us to the other piece mr o'connor noted this is not a typical case where you think of deliberate ignorance and the government would sure agree because what we're dealing with here is defendant who it was the evidence might clear it was central to the conspiracy not peripheral not broad and through deliberate ignorance response to your opposing counsel's explanation of how the searches were executed thank you and let me start by just reminding the court that opponents have been very attempted and i have in fact affirmatively stated that's not the argument they're making they're focusing on the time of issuance as baranski teachers as is the correct time as far as particular that look for execution and issues that's just that's reasonable and still entered which probably explains why opponents are not by simply saying exhibit a that was in ad quit and as i understand it the reasoning is because i'm sorry the wording was attachment  and attachment b does that adequately incorporate an attachment that got dr to as any as part of the application frankly at the united states finds this an easy argument this has got to be and to be particular there's no question what's referred to here exhibit a in a simultaneously presented application package that the situation here i'm struggling just a little maybe you can help me conceptually understand it i thought heart of the importance was to give notice to the party that receives it so i understand what you're saying they're not challenging a lack of good stuff but just to diverge just a little bit if what you are saying is that if it was file simultaneously that's good enough but if only the war act goes with an officer and not the application and the exhibits then don't you have a problem with the  i'm not sure that i'm following you there because i thought that mr o'connor says that it wasn't present the there was more than one scene and therefore you couldn't make the argument that the attachments were present at the scene as to separate war and some of course that had their own packages at the tutsi so again though i can i would i would again emphasize we're really warrants not only were issued but were executed because so you're saying that there were that each warrant that went to the separate places each had a package with it that's right thank you and they are judge griffin if in execution of that the only thing that shows up is the war with out the particularity of the application or the attachments to the act application under the rule that's being positive attachments present i believe that's correct but i must say given that this wasn't the issue raised tension to the execution related issue and baranski was not as close you explain to me how you respond to the charge that it was unduly prejudicial for the agent to present the overview of the case prior to the presentation of evidence supporting that and for yes judge stands i think the important thing with what the agent present and a few things the overview witnesses that raise concern are witnesses who are presenting testimony about exhibits or other anticipated testimony that has not yet so when the government for a attempts to use a witness at the beginning to sort of foreshadow that can be problematic that's not what happened here and the reason of the agent's testimony pursuant frankly to the defendant strategy of not objecting to the exhibits when they were offered again and again and they said no objection they did object on some occasions as they note to the agent the extent to which the agent was up to say something about the exam and the district court drew the line trying to limit the agent to simply reading affectively publishing from those already admitted existed those were the only objections that were used so we don't think this is the kind of over  with regard to the jury instruction question i heard my friend on the other side say that mr evans was supposedly central to the scheme and was a core player and yet she conceded that this was these instructions are not typical in conspiracy cases the harmon instructing the jury this way and doing this is it goes to the elements of the offense charge this is some outlier instruction it was voted in so the elements of the offense and so to me that shows the harm i correct that the consensus search was for it another had addresses for three to zero matt cardle rogue and not either of the round bottom wrote addresses where these servers were taken one of the other issues that we talked about was supreme court and rows of it doesn't matter the word still has to comply with the particulary requirements of the warrants clause in here again these warrants don't comply there's nothing attached to it so we don't know what is authorized to be searched or to be files of the following patients then we might understand was intended to be incorporated but when you have all that there is a bare bones attached and have to be and you don't find that document you don't actually attach it and you don't reference another known were left blank completely that would require comply with the particulary requirements and on the other extreme if the field had described with sufficient particulary either what was intended to be incorporated a it just doesn't require to comply with the constitution out constitutionally required particulary to advise both the defendant and subject of the search all the parties  what was authorized to be certain what was authorized to be seized i see my time has run short so unless there are other questions i'll ask you to reverse thank you any further questions judge batchelder a trench thank you all right