reversal of the conviction of nd degree murder and ice case and the reason for that is there are many as outlined in appellants three so i will begin with one of the central arguments that we have and that your honor is is that the district court errored and denying the argument it sufficiency of the evidence argument both under motion for could have been dead when it was alleged that the appellant kicked mr tarting crow and so even if it is assumed that mr target are my client mr charging crowe's death and it just didn't happen in this case the government's own witness dr hobby testified that what was the cause of death was a lacerated vascular artery and dr harvey the government's expert testified that what caused that laceration is blunt trauma and dr hobbie testified that but of course trauma is general and can be any number of things it can be  finessed it could be from falling it could be from hitting the head with falling and the government's own witnesses l t nicole and my client's recorded interrogation all can essentially it kills you instantaneously or very shortly thereafter but how if it's so so your position is that you believe that the evidence show three that the likely took place immediately either impacts on the floor or by the cyst is that cracks correct so what and if there is also so let's let's just take that as the premise for this question if there's also  stopping that i believe was presented at trial would that be relevant to his intense and to the idea of malice even if it was not the cause of the death well yes your honor would absolutely that route your honor at the good question it is absolutely relevant to proving mauer's and it's our position that that piece of alleged evidence which we dispute but would be the only evidence which would show malice aforethought because mere fistfight is not nd degree murder and accidental killing is not nd degree murder stomping on someone's face arguably a nd degree murder and the point is marland stomped on his face which meet him at least to speak but even if that occurred the government cannot prove that that was the cause of his dad and it is that act which needs to be the cause of death to but regardless the point is that to prove a murder you have to prove what caused that murder and in a hypothetical let's say someone's dad and another person comes up and shoots them in the had they have not committed a murder why because they didn't cause the death the person was already that and so the point is the government's own witness made it that you either there was no there is nothing that can prove beyond a reasonable doubt that that isn't what killed up and if it is then there's there's no there's no proof beyond reasonable doubt of malice aforethought and therefore the district court  very important to my client is this that not only is that a point but there are several other ways that mr crow could have died and i've outlined that the priest and i do want to spend a little time and the prejudice that my client maintains occurred in this case and i don't think that that could be at taken away from the argument of sufficiency of the evidence and how  it wasn't just an isolated incident but it occurred because the met from the beginning of the case to the very end and the back pattern of the jury scene the government continually defied court order or the five court or don't know i don't know what are in the minds of the individual jury in this case a case we'll never know but it's from my perspective reasonable that it inflamed the jury to believe that they were being held some information that the government knew something because the government after all and even though the law says that the defendant is presumed innocent it's my humble position that when the united states government speaks it matters and so if the united states government is continually define court order in front of the jury that their version of the truth it out to me is that what you mean by the government's leading the jury to believe that they were withholding something because of the interaction between the prosecutor and the key witness because it could be interpreted that your honor but that more so for instance in the t shirt incident where the government spent a long time trying to get a t shirt and that the court kept ruling was  prejudiced the jury so that essentially they turned off and decided you know what the jury is trying to present a stuff we can't hear it they're telling us the truth that's what they keep saying and and the case is pretty much done and and that would help explain why in my opinion we have an irrational jury result because from our perspective nd degree murder was not proved beyond reasonable doubt  wondering if we can by the nature of the misconduct which is not great but not as serious as what i described before why do you think you would have instructions to the job thank you for that question your honor well because meant that in a case where there is a violation of court order from the beginning to the and which i think that occurred in this case not just an improper but in for instance the t shirt  and for instance the government said what did i tell you about telling the truth and the more that the truth will set me free and i will feel more better and it goes on and the government by saying i told you that the truth will be the story that was so didn't do anything wrong isn't that true and i objected and the court we had a bench court conference but the court overruled it so there was no period of instruction there was no sustaining objection the jury just heard ok well i guess that improper both ring was ok so then you have a confusion of period of instruction power fact of our day when there are inconsistent instructions coming from the court if that would make any sense your hon that you'll see a nd degree murder not not that i want to start off with the argument that miss patterson started with and that is that the evidence in this case isn't sufficient to sustain a guilty verdict  that he could get his construction workers on and on the fiancee and that is what the court instructed on balance in this case which is instruction number court before the jury in this case and much but there's i'm just in visioning a stopping by a man to another man's face i would think that there might be broken bones or there might be something more than just a  instruction in this case when they're there that doesn't show a substantial amount of prejudice to the defendant now just to kind of back up a little bit i want to go into the issue regarding testifies to the actions that she saw and these were rejected she testifies who what she observed every witness the defendant wanted to call was to testify and the any improper s our statements to counsel and then the curative instruction my reading is that she did not think it was proper now that's a different question as to whether the curative instruction is suspici pull more fat and i agree it was in artful it was an eloquent it wasn't the best way to pose it but it doesn't rise to the level of misconduct nor do i believe that rises to level off outing or trying to bolster the witnesses to put on evidence and or if you need rather they were given every opportunity that propagandize or present evidence that they felt necessary this is a jury trial process none of these alleged  and never got any better there were things going on that that that were just showed that the letters were out sort of up on the same page and they weren't really get d it all done and it starts off and bloodier and  questions about well what do you think the judge's instructions on ballasts thanks i mean is this is this common insult to kota i mean that it struck me as very odd in that there were statements that were being made frankly up both sides well what those instructions play and he made it and then it kind of went downhill from there i mean it started off sloppy and it didn't really seem to be getting any better and i just like your input on that this was a very unusual piece in this the court has found that it directly goes in opposition to that the defense was allowed every opportunity in could to present the facts in the light that they wanted to and if any there was any alleged misconduct on mi hath it wasn't so that it violated their right to a fair trial in fact it was the defendant himself that wanted this questioning around more set her testimony to come in and i don't think that the defendant that this court affirm the district court's decision to sentence iron two hundred and forty months because it was reasonable finally after days of testimony and evidence including eyewitness testimony in a forensic  face would not sustain a verdict of nd degree murder because as the court correctly i believe notes a stomping which the testimony of i'll see you was that mr charging crow was laying flat on the floor and that cross on his face with a heavy workload that there would have been broken bones and in fact defense expert brian levinson testified to just that and that was an issue your honor because that t shirt was sent top to d the government's forensic lab and we had to call their agent to put into the record and that's reference on the pounds brief page there was not enough detail in the imprint on the shirt to compare to the blues which would have allowed him to say those boots caused that imprint so that was that would have been and the testimony of an expert but would have had to have continued the trial to get that actual expert put that in so it came in through the f b i agent the growth in the defense had to call and it the boot that was put into evidence if you feel that they're heavy