may i please the court good morning i'm fed link from the federal defenders on behalf of mr gomes i'm going to attempt to save two minutes ok we're asking the court to vacate mr gomez's conviction at trial for second degree murder this is a trial where the jury was left wondering why mr gomes pulled the trigger and killed his cousin and lifelong friend had the jury been properly instructed that the government for the burden of proving the absence of the heat of passion or coral there's a realistic possibility that the verdict would have been different i want to focus on the error issue that issue has a factual component which is whether mr gomes was entitled to a voluntary manslaughter instruction and a legal component which is whether the district court's instruction was correct the factual component is probably the crux of this appeal but in the context of the government's evidence in this case the jury that's what i thought ok yes we asked for a voluntary manslaughter instruction but not with the language that should have been given but the evidence that goes both the prejudice and the propriety of this instruction is first the defendant and the victim are relatives who've lived together on and off for most of their lives there's friends their friends who have an interaction earlier in the day so mean it mean if you use them in at the at the very end of the of the case that's it feels a little a little late to be saying gee this was this was just you know this is inexplicable it was clearly heat of passion or something else i mean did you are you arguing diminished capacity no no no alcohol related drug related i mean there was evidence that the defendant was intoxicated but didn't ask for a diminished capacity instruction anything that i should clarify judge by are you asking whether we use those words when asking the district court judge for the instruction no did use those words to use those words in the course of the trial generally i can't i can't i don't recall whether those exact words are used in closing and the the reason i ask is because the the voluntary met the voluntary manslaughter instruction that the district court gives suggests that the voluntary manslaughter would be the absence of malice aforethought not necessarily the presence of  of sudden quarrel or heat of passion those might be reasons for it but i'm wondering why the government would have to would have to prove that and if you haven't raised this is a defense why is this why should this have been plain error to the district court i mean why why why should we say she just a court even though skilled counsel didn't ask for this you should have recognized the problem well what divides second degree murder versus voluntary manslaughter is the absence or presence of the heat of or absence of it is this and it were then shouldn't that be should that be a standard instruction well if it i mean isn't that going to be in the ninth circuit's model model instructions it is in the comment to the second degree murder instruction it in fact suggested it's not a part of our of our  model instructions it's part of the comment it's attached to the instruction it's in it's in the packet that you look at but not in the instruction it's not the no it's the comment of the instruction right  but i mean it's it's from a case it's from can taro and it's from les sina and it's right there if you read the entirety of the instruction and it's common in the cases that it cites oh everybody just missed this why didn't  there's nothing in the record that explains why they didn't ask for well the record doesn't show any quarrel though right as i read it the witness says the cousin came over there was some discussion there was no argument between them the defendant was aggravated about a high speed chase that he'd been in the night before not involving the cousin he was complaining about that the victim and the witness went into another room and then he shows up and says i want to shoot you but no no coral proceeding that if i read the record correctly think gave the instruction it's a little record that we have because most of this was off of it just based on mr rebate the victim's statement where the defendant who has had a friendship with this person is expressing all of a sudden antagonism and the need that he feels that it's appropriate to shoot him but the other circumstances are earlier in the day they have an interaction where mr diaz come back comes back and says he's upset and it's unclear what it's about something about a high speed chase but there's not that not having to do with the victim no unclear i mean all that we know is that there's this sect thirdhand miss your rebate reporting that mr diaz said about what mr gomez said that he's very upset he's drunk something about a high speed chase and mr diaz feels the need to go to this house and have a follow up or conversation or whatever confrontation with mr g s and then it's relevant that they're both extremely intoxicated mr diaz under a very high level of methamphetamine and mr gomez is very intoxicated which case like aren't says that that makes it more plausible that there is some sort of quarrel that's irrational these parties aren't acting rationally i'm having trouble in the absence of real evidence of heat of passion or real evidence of have been guilty of the lesser included when there's very little evidence of malice itself it's really the only testimony of malice is in the the government is forthright in its closing argument it's miss your rebids testimony about what she heard immediately before the shooting and there's no explanation as to what occurred or why mr diaz had that state of mind why he felt that way and miss your rebase chronology of the events of the day i think it's aforethought it was only heat of passion or it was sudden quarrel but i don't see how list ciena helps you because le sina is quite explicit that there were that the instruction was requested there and aren't that we say that it must be given where the defense is raised and since you haven't been using those terms during the course of the trial i don't see that the defense has been raised so i'm i'm struggling to figure out where the plane error is well your honor it's theirs it's it's requested reraising that issue just by requesting a lesser included a voluntary manslaughter there's there's really no basis on which you can ask for it or get it unless you're suggesting that there's provocation or heat of but you couldn't but you couldn't you didn't use the words yourself i mean by you i mean the trial or trial counsel he's talking about a struggle he's talking about a quarrel and and what you're asking about is what the basis for the judge giving it was and that's off the record but the law is list ciena moloney the text of the statute itself what distinguishes voluntary from second degree is the existence of heat or passion or a quarrel so even by submitting the proposed jury instructions yourself being that that's a that's an alternate i mean there's a there's a number of things that could be besides those i mean the could have been you could have been playing with the gun recklessly could have been doing a lot of things they could in playing russian roulette and those things would would have gotten your client acquitted of second degree a second degree murder and possibly convicted of involuntary manslaughter and ri describing the district court elected not to give that instruction because there wasn't any evidence of accidental conduct so i mean the last the law defines voluntary manslaughter as you know same as second degree murder which describes it's a case where voluntary manslaughter instruction is given the defendant is playing he's out in the yard with his two year old daughter and his four year old son his two year old daughter dies his theory is that she fell off the truck and hit his head the government's theories that he hit her several times there's almost no evidence of motive why he did that but the district court elected to give a voluntary manslaughter instruction because the government's theory was that he was angry at his daughter just as an end and then the jury convicted on that so there is sufficient evidence in that circumstance it's comparable in terms of the lack of mens rea as here ok let we can you have your limit we'll give you just respond  good morning your honor it's me it please the court serena case hargrove on behalf of the united states your honors know plain error occurred in this case the court was correct to provide a lesser included offense instruction under aren't a lesser included offense instruction is required if there is indeed a lesser included offense and everyone agrees here that voluntary manslaughter is that and record evidence supports the lesser included offense in this case the whole question was whether the government could prove malice aforethought and the defense did an excellent job of highlighting one of the trickiest parts of this case for the government and that was the total absence of a motive these gentlemen were friends they were cousins and and it was it was hard to explain why this this murder had happened and counsel consistently focused on that in the closing argument indeed the defendant had acknowledged that he was guilty of voluntary manslaughter and in the closing defense counsel acknowledges that again on page three seventy of the excerpts of record so the only question was whether the government had introduced sufficient proof of malice aforethought the district court was also correct that negating provocation was not required of the government in this case and that's because there was no evidence of provocation whatsoever in the defendant's brief they cite to three pages in the eggs or page sixteen to forty one in three fifty four arguing that the district court found evidence of provocation but none of those none of those pages establish that  honour's the first is part of the defendant's motion for a new trial and the other two simply establish that the court gave the lesser included instruction for voluntary manslaughter the defendant in his closing did argue that there was a struggle and he based that on the testimony of dr garrison which interestingly was going over his negative findings dr kerrison found that there was no evidence of a struggle and defense counsel elicited from him the fact that it would be possible to have a struggle even with no physical evidence and so he couldn't rule that out that possibility turned into in defense counsel's closing argument a statement first that we don't know if they struggled and then several pages later a statement that dr garrisons testimony strongly suggested that there was some kind of a struggle  would you put two minutes on the clock pl honour's i want to just point to the statute underlies all this eighteen u s code one one twelve and it just it says manslaughter is unlawful killing of a human being without malice it is of two kinds of voluntary a put upon a sudden quarrel or heat of passion you can't ask for a lesser included on voluntary manslaughter without raising the issue of sudden quarrel or heat of passion and it's true the defense counsel in closing didn't use the word sudden quarrel heat or passion he described a struggle but the prosecutor understood him to be arguing passion or quarrel because that's what he addressed in his rebuttal and it's the judge's instructions section sixteen was a model instruction and it does use what what you want to do something different that says the government's got to prove that it wasn't these things that's right that's right endlessness says that when that is raised and it was raised in this case when defendant submitted that requested instruction to the judge was seen as says that the jury has to be instructed that the government bears the burden of disproving sudden quarrel or heat of passion the bottom line in this case is with so little evidence of mr gomes a state of mind so little evidence of malice a reasonable jury could have found that he was guilty of voluntary manslaughter a killing in the context of a quarrel or heat of passion and the judge properly instructed the jury gave the instruction gave the wrong instruction that the verdict very possibly would have been different if they didn't you're actually the plainer challenge that you're making is actually a challenge to our to our model instructions it's a challenge to the instruction given in the context of this case but which was the model instruction which was the model instruction the plane errors because this violated list siena i mean it's an on point case that follows a supreme court case that is referenced in the comment to the model jury instruction that all of the parties looked at when they filed their proposed instructions and when the judge adopted it so if you right about that though it seems that the additional language ought to be part of the instruction in every case if you say that there's only two ways to negate malice which by the way i'm not sure is correct there are other ways that one can the defendant can i think that's correct i'm not certain but i think that's correct based on so the reason that this is in the commentary rather than the instruction itself is that it really depends on what the circumstances of the case are and it's incumbent upon the lawyer requesting this additional language to say there are circumstances here that justify the giving of of this additional language in the instruction that that's where i'm hung up because i don't see circumstances that trial counsel pointed to well the  first for your question your honor the voluntary manslaughter the pattern instruction would be appropriate in a case where the government just charges voluntary manslaughter as opposed to when it's used as a lesser included for second degree murder charge but the  emphasize that really the key dividing line between second degree murder except maybe in some ancillary circumstances is this existence or absent a few companies why isn't why isn't the burden satisfied with instruction fifteen which is the which is the murder instruction because if you're correct that heat of passion and sudden quarrel negate the malice aforethought then hasn't the government prove that it was not very similar to the instructions given in this case and the instruction requested was i don't i don't think i think it was you know that was the only thing charged i'd have to check but i request for the instruction the argument that was made and if it had been given this that probably would have been the verdict in this case so we ask you to vacate the conviction thank you thank you i think both sides for their argument united states versus goma's emitted for decision  this morning united states versus kim