thank you and may it please the court my name is michael thompson i represent the defendant appellant john smith in this case mr smith appeals his conviction which resulted from a rather a typical jury deliberation process in the district court there were a series of jury notes set sent out to the court during deliberations two of which involved jurors who indicated that they were unable to reach a decision a unanimous verdict but their fellow jurors  of about this your primary concern seems to be no four correct but first of all counsel heartily endorse the district court's response to no four and secondly by my count looking at the little timestamps in the margin the response tonight to note for comes in about forty minutes after the response to no three and i just wonder how often do you think the jury has to hear the silvered instruction the day they were hearing it and here think they could be got it with the original instructions and they found again with no three i find it hard to imagine that they had completely yes it was but if it is their verdict only because it was reaching a coercive manner then the verdict is in firm even if they believe at that time that it's still their verdict and as to the timing that when the notes were sad i think that actually exacerbates the problem because the jury's first halt reach a verdict if you can but don't give up your beliefs after that within forty minutes as your honor noted one of the jurors says hey i can't do that i  one it says keep deliberating i am having trouble seeing why i keep deliberating doesn't mean under the rules that i've given you which includes talk but listen stick to your views you know all the things that are there in the instructions so yours your understanding the idea of keep deliberating as you know given to other people and it seems to me that said i don't see that i wasn't part of that instruction  included remember to keep your own counsel and that is the instruction that was given both originally and after the third night but then when a juror basically said i can't follow that instruction the court told them to keep deliberating anyway and to reach a verdict and i think the sequence of events is what creates the coercive effect there if the if the third note and then there if that had just been one no if we ignore the third no and the fourth note was the first one that came out regarding the deliberation difficulty and the juror hey i'm unable to do this and they said well keep deliberating and try i don't think we have the same situation that confuses me even more to tell you the truth because i just don't know why the jury wouldn't understand these instructions it's cumulative especially i mean you know we're not even talking about the waiver issue which we probably should be talking about on the merits i don't see what's so coercive about it maybe you should talk about waiver though because it really seems to me by the time they have this lengthy back and forth about how they're going to respond to you know for an defense counsel i recognize now you the defense counsel says perfect that i mean the district judge should thought that was waiver and i would like to hear you tell me why is it i think it should be considered more of a forfeiture than a waiver because the issue of course in wasn't really considered it wasn't an identified issue it wasn't something that there's any reason to believe that a trial counsel even considered when making that decision but it's not worse than of every word of the judge's response it does seem to be yes i agree with you your honor however there's no valid strategic reason for him to have done that if he was actually thinking about whether the jury should be instructed about not giving up their honestly held beliefs and because there wouldn't have been as i want to tell you again you mean about not giving up here i'm guessing in light of the timing of these notes instructed again that hey you should really try if you can do it without doing violence to your own beliefs and even if it was some sort of waiver i think it would be a sort of situation where the issue should be considered anyway because of the interest of justice and not having coerced jurors if well that's interesting point because i'm again i guess just to ask i'm not sure why you're better off if we were to consider this centerpiece there's nothing better than playing here for your client that we could use and it's hard for me to see why the judge looking at the instructions as a whole couldn't see this as an entirely appropriate sequence it's not like it was three days later and thought the jury would have forgotten the silvered instruction and i think it's basically because the effect of note was to say even in light of the soviet instruction i can't reach a decision here perhaps because of this over and instructions you told allen charge or anything to the jury there's not you know you lock you up here forever until you come up with a verdict known but that may be sort of what the jury's interpretating that response is being when they say hey i can't do this you told me not to do violence to my individual decisions not to give up i honestly held beliefs i can't reach a verdict and the response to that is hey you need to keep deliberating and reach a verdict you the idea that you're talking about which response were which question from the juror the disappoint i'm feeling disrespected that was the third note to the when one of the individuals on the jury indicated they felt has previously approved so there was some back and forth right about whether this instruction would somehow be directed exclusively to the juror who sent that no or whether it would be a generic a jury you know keep deliberating opted for the generic right at the defendant's request the defense attorney was specifically asked a couple of times how he would like it to go to the jury and he indicated match her herself and we knew it was a female  to the entire jury there was also discussion upbringing the jury back out the defense truly do not want that in this case at each stage the district court actually presented it first to the defendant and his attorney said how would you like to handle this and ultimately what was presented was exactly what the decide what the defense attorney requested i would think the judge would want to do that either i'm sorry i wouldn't think the judge would be inclined to do it individually either no sir and that really was the crux of the put i can't say that he specifically pulled them out and dressed them he may have done that prior to us returning to the courtroom for something i've just was from the pattern or at least with the additional caveat his note said i'm going to direct you attend it again to the southern instruction so there was a a preamble as it were in addition your honor the instructions language as you noted was expressly approved by defense counsel well defense counsel first responds as i recall when the note comes out and the judge says here we have there's no you know everybody gathered together he says words should be effective continue to deliberate that is correct keeps you doesn't so so i guess mr thompson's point seems to be that's fine as far as it goes but when you are reminding the jury about what deliberation actually means you need to tell them that deliberation means all the things i was ticking off means listening to other people it means you know respecting the court's instructions it means being true to your own view i think a first of all if that's the case then essentially we'd be required to provide the silver language every single time we go back to the jury and answer notes and tell them to continue deliberations and that's not what this court has said and in fact in digraph and read this court noted that p continue to deliberate to this court said was not course of its language which is neutral such an instruction quote carries no plausible potential for coercing the jury to surrender their honest opinions their argument is that the almost an  identical struction did just that but that's contrary to this court's prior rulings it's contrary to what was going on in this case this was not a situation in which the jury was indicating they were at an impasse or they were deadlocked it was one juror who indicate did that she was having difficulty and essentially was asking to be excused from the case this was not a deadlock situation and that is when this court has said that silver is necessary but as you noted it had just been given to them a short time before and there is a catch twenty two they want to on the one hand to tether their argument the to the previous note there's no indication that the two were related in any way but when they do so the silver language was there so they they really are stuck between those two discussed and it was overlooked by mistake and so he desexed this and he says well yes we like the instruction but nobody realized that there was a potential coersion issue and so that sounds more like  forfeiture waiver the defendant's argument really stands waiver on its head it basically says any omission can never be waived as long as the district court didn't expressly address it prior to offering the opportunity to the defense counsel that's simply not this court's prior rulings this court really distinguishes between a failure to object and an approval and even in the cases the defense sites and the reply brief such as hamilton that was a failure to object to one fifty pages of an instruction in that case the that this court noted that it was unclear that the defendant agreed at all to the instruction that's where dischord distinguishes under the emission theory they're putting forth even even instructs the defense rights intended to the court cannot be waiver if they fail to address an argument and that simply is contrary to this court's prior holdings and the waiver or even forfeiture unless the court has other question as the government respectfully asked the court to affirm defendants conviction that sentence thank you thank you very much mr townson i would put to the court that this was not as neutral of an instruction as the government would like the court to believe because of the way it was worded it wasn't simply continue to look to the liberated in response of the jurors know which says i cannot reach a sound decision on this case the court said each of you has been chosen as a juror each of you is part of the jury that has been picked to decide this case so the jury says i can't decide and the court says you've been picked to decide continue to deliberate so in that respect  use from my native texas ya'll have been picked to decide all of the sure so it wasn't directed specifically to the juror to the one juror but it did say in response to juror no four which was written by that specific jerks so that the other  know that they might think well for some reason the court's decided to remind us again that we're the jury i'm not sure that makes it better your honor in regards to that one juror it has to be a unanimous verdict that jurors saying we can't reach a unanimous verdict because i can't decide and the court says you have to do it anyway and i think under those circumstances that is coercive and it's the kind of thing that wasn't weighed by the even enthusiastic approval of the instruction that was given so we asked that the conviction be over overturned and crushed all right thank you very much and thanks to the government as well we'll take case hundred guys