when your honors may please the court counsel my name is david partovi here for the victor on gulo i'm going to endeavor to keep as much time for a rebuttal as possible i'm going to shoot for six minutes the reason that i think i might be able to do that is my argument is very very some months after that occurred this court held that it is plain error for the district court to not sue a sponsor give the instruction he proposed so in other words you're his issue and would be that he erred in he should have overruled the objections  both parties and nonetheless proceeded to give the broken out verdict special verdict form that he had initially proposed yes your honor having sat through the immediately preceding oral argument it seems to me that both parties can agree and the court can say no we don't see it that way and that's what what he yeah but it's a little bit different and you know in a dynamic trial situation well there he so it's like the judge says i want to do this i think this will fix the problem the parties the parties in the trial of their case as to how it's going to be argued so no i don't think that will fix the problem for whatever reason i don't want that because i'm worried that while saying my not guilty verdict or whatever the ones are your i guess your rule is he should have done it anyway yeah honestly i mean we all make mistakes that's what we're here for this court is i'm not so sure that it was a mistake i think it was actually were you  it actually might be a tactical move on the part of the defense because the nature of the evidence the the evidence of the finding of the gun and tying it to mr anglo was much weaker than the fact that he had live rounds and in the pocket of his sweatpants but that reason well ok i guess where the court's going what i would suggest is the language in my reading of live here would say that we're not going to second guess those kinds of things what what the jury was thinking the judge was thinking the trial counsel was thinking clearly the government at this point argues that it was strategic i don't know that it was strategic i can see a counterargument which would be if you have the breakout verdict form because the evidence is so strong of the one round of ammunition but so weak with regard to the firearm if you had a broken out you would only get convicted of the ammunition and you could have made successfully the sensing argument that mr eagan trial counsel attempted to make so that would be an argument to have gone with what judge shay proposed because you could have gotten a not guilty on a and a guilty on b for a lesser sentence which is why it looked to me like it was a strategic move i'm not sure it was actually a bad move on the part of the defense but but i am a little bit bothered by the fact that the that mr egan concurred consented whatever you wan call it to the special verdict form that was given to the jury and now you're up here are going on appeal it that was reversible error and that's what the invited error doctrine is all about will there be a group that but there are there are two keys at play here why why this should go back down one is the constitutional right of mr angulo to unanimous verdict is substantial and was prejudiced but number two and perhaps more importantly well i don't know what's more important but th the integrity of the system i mean here we are arguing about whether it was strategic whether it was an error or whether a judge she could have known well not here was going to hold the su a sponsor language was new in la pierre and what it really comes down to is we don't know what angulo was convicted of and regardless again that gets back to whether or not you read you declare the special verdict form to be ambiguous and i what does it for me is that that last clause at the very end my argument that all of you agree to the gun or the ammunition so there were three things done in this case to assure and big a unanimous verdict one was we find him guilty not guilty and then of the firearm and or ammunition the second was where a unanimous as to which firearm and or and unishe and he possessed which i don't think helps think it makes it worse but the number three he had the ability to poll the jury and he did poll the jury the district court and said is this your verdict on the verdict of the jury and that yes it's you but you normally when you pull a jury you normally don't go through each question on the special verdict form and ask them is this your verdict on one a how about one to be well i agree and i think that they're the years my position essentially an opportunity for the hol raise his or her hand and say you know well i voted that way but i'm now i'm having second but i think your argument is that your argument the bipolar jury what he got was unanimity that they all agree that it was either the firearm or and or the bullet yes right yes and that's the fatal ambiguity in the in the verdict and or when it comes down to to the bottom it comes down to and or but it's very difficult in this case counsel because the judge not only foresaw the problem he had proposed break out forms and and there was an affirmative waiver threshold findings that this court has to make for the ambiguity or at least the possibility was there and here i think we could all agree the possibility was not only present but was seen by the district court so at that point he had an obligation to remedy it at that time he did not under law pure in my opinion ok in my own my reading of up here it is sort of plainer for a district court not to sue a sponte give a specific unanimity instruction when the possibility for confusion exists  should we consider this as the fill your to make an objection to the particular jury instruction this offer which is a wave a bowl objection is well my reading of the law is that that would change the standard of review from abuses question to plain or i am of the opinion as the as this court was in garcia rivera that it it is plain error therefore you needn't determine whether or not the abuse of discretion or the plane or standard of  difference between waiver and forfeiture isn't that well words if you wave something it's a known right as opposed to just flat out missing it correct and i think that at the time if you could say that he was waving a integrity of the additional system and ensure a unanimous verdict by refusing the request of the parties which courts do on a regular basis you want to save your remaining time i would like to thank you for your six minutes first is that it was invited air and therefore the whole issue of the jury verdict form is waived and then the second one is that if it is not if it was not if the court finds it it was applies by a waiver when a defendant induces or or causes and i'm paraphrasing here itself i would submit that in this case fans counsel did inducing cause we're presuming it's an error the government's position don't i don't well i think that in terms of a constitutional right i think that that would be something that would still well that is true it would there are two cases i believe in terms of invited there that being inducing and causing the air and then there's also actively waiving a constitutional right in the case which we addressed in the brief in this case again we don't believe that it was an error but ll your attention back to yes you're ok thanks so much so i think opposing counsel's strongest argument is the argument that the verdict form was ambiguous and that what we have is twelve jurors saying yep we agree he possessed the gun or the bullet and or so so we could have twelve it could be the case that we don't have twelve folks saying that he possess the gun and that's a big problem because there's a much more severe penalty so what's your response to that please without the language that the united states argument is that that wasn't sufficiently curative because they all agree that it's one of the first if instructions and a verdict form is also considered an instruction if they're read in their possessed firearm or ammunition and then we have the verdict form which said yep we all agree it was firearm and or ammunition right and i guess i take take your point that the verdict form is treated as an instruction but because the added language of all of the grieving and or which i would respectfully submit is language that common ordinary people would understand and which is made up of the jury is in the verdict federal forty five caliber ammunition or winchester and so it adds one more layer of ambiguity here as to what ammunition or we've been talking about right i think i don't believe that there's ambiguity in fact in terms of the ammunition it doesn't and i thought about that too and it looked to me like the winchester round was in that clip that was inside the gun that it was the rest of the rounds were federal and the round that was found in his pocket was i believe one round in it and i read winchester one round in his pocket was a winchester i believe and then there and then the rounds that were in the gun i believe included one round instructions as in reading the case law there is a general unanimity instruction i believe that's instruction nineteen right if that was in there just by itself then argument as well as to specific unanimity instruction that an instruction three and also in the jury four in the jury verdict so that while again the argument may be that well it's just general the court  did place specific instructions to the jury on that i did want to address a couple of the items raised by that by the defendant by counsel in that one the record i believe is clear that the defendant did in fact object to the breakout form as it was written and while prior to the instruction prior to instructing the jury the defendant's words were that he concurred that the record does indicate that does indicate in the colloquy during sentencing that the defendant the court actually asked him when he brought up that the government objected that you also objected that both parties objected and rejected that first form and it was the united states that sought to cure the form as initially written without the end or agreement part language the united states sought to bring that it why didn't you agree as i understood the court proposal there were actually three different boxes one for the gun one for ammunition in the pocket and one for the ammunition in the gun you don't mind my coming into this case after a trial what i found was that that was that appeared to be what the court was articulating but the actual breakout form was what the united states submitted as a supplemental and it was actually to appeared more confusing because it had look like two charges but really just one charge i did my time is dwindling but i didn't want to comment on here united states respectfully believe distinguishable was the court said it was the perfect storm there was clear evidence of multiple conspiracies the indictment was vague as to who was involved in the conspiracies there was a colloquy with the court as to whether or not there were multiple conspiracies because of the evidence presented and my reading unless i missed it what never was any discussion of the jury the actual form as there thought we find him guilty not guilty of possessing a firearm and or i mean ition and we're all unanimous as to which firearm and or ammunition he possessed that doesn't fix it if anything it makes it worse well what what would confuse the lay person about the fact that they all had to agree on the verdict well my answer to that is you put yourself in that jury box as a lay person not as a lawyer you know before i came before your honors i read all of the wikipedia entries and sort of research your backgrounds a little bit none of you are laypeople ok i'm not a lay person i understood what was happening here i understood the error i understood the fix i understood why judge she didn't give the fix i believe he had a legal obligation under lock here to give that fix and that that is what i assigning plain error to a lay person depending on how the court does it and i don't remember how judge she does it whether they get copies of this in comprehensibly complex packet of information or if it's just read to them blindly which i think is much much worse so the state courts do that in spokane but why can't we read this in conjunction with the three instruction numbers that specifically address what the jury had to find because you are not able to answer the question what was mr angulo convicted possessing that's the fundamental problem he was convicted of both or maybe both firearm and ammunition know how i read that's how i read it that you use the word or fire an i'm sorry you use the word and i see my time's up i want to be careful use the word end and i agree that that's one interpretation however i think that or is another interpretation and we have to be clear i mean if you want an understandable supportable verdict that does not impugn the integrity of the system and ensures a constitutional right you can't use and or the last thing i will just say is the reason i have not addressed mr on glos issues of ineffective assistance on appeal is my understanding is that is not properly brought on direct appeal ok thank you thank you both for your arguments this morning case of united states v