briefs because we are paired we would prefer t v please spend your time arguing d the most critical issues in your case we will soon have issues that are not argued today that you rely upon the arguments contained in your brief i've been told by the the government's burden prove its case the trial judge refused to give the pattern destruction which tells the jury the very important concept that proof beyond a reasonable doubt means proof which is so convincing that you would not hesitate to act on it in making the most important decisions in your own lives in fact there was nothing in the instruction that told the jury that there was a different berger the i mean the obstruction with was basically the michigan standard criminal jury instruction with with some modifications given by the judge clearly in reasonable doubt it talked about reasonable doubt it didn't talk about her much hundreds the evidence haven't we rejected your argument before i mean our don't we have unpublished opinions that have ever said that this basic instruction is is is not thousand and thirteen in which the court criticized the instruction and the judge's refusal to give a better instruction and then made the point by saying that the districts now quote the district court's jury instruction here does not address the near certainty that the reasonable doubt standard and suspects and the court when just some detail about what was wrong with the current the instruction also important to note that this was a one day trial and the proofs seem to be quite overwhelming in that case involving illegal reentry after deportation so the core look to the case under the clean air standard found that under that standard it was not reversible error or here we have if it did the other do the other i published opinions or have a under the usual standard for preserving your injury instructions and they reach different decisions but they are unpublished cases they're not binding on the score in the court can look at this case in the same way that  i know i don't know the complete answer your honor i'm i happen to be on the pattern jury instruction committee and it was among the instructions that had already been adopted before i came on the committee but i know that it is very similar to a number of instructions there are used around the country that particular phrase  about explaining why this is important horton matter in your own lives is a commonly used instruction around the country it's certainly not universal but the concept is necessary to explain to a jury why this is important and how important it is and how different idioms from other words are still case your argument is that this is the only possible way that a jury could get this message is through the use of these magic words not at all your honor there are any number of words that could be used to it so the argument isn't really that this instruction was a given you're not really that way to this language this language that was ose your main point is that the instruction was misleading is not that it is constitutionally required to give the six but it's pattern jury instruction not at all it's necessary to inform the jury that reasonable doubt is a concept that critique or has decided as near certitude of guilt there are any number of words that can be used to describe that concept but those words that concept was not explained here well you said several different things were you say that it didn't explain the difference between civil and criminal it didn't say that it's not a preponderance and you've d used the words near certainty you are there any cases that that adverse to any one of those three things that instructions i didn't find those granted it's a different form of words and i understand the theory but playing behind what you're saying that the end instructions nobody says those things do they well the words quoted are not contained in any jury instruction of which i'm aware of the concept is the importance and are we saying something some form of words that explains to the jury that it's the government's burden is higher on a propos case than it is a civil cats are we telling something to the jury that allows them to understand d that they have to reach a higher degree of certainty than in a civil case if we do they have to and we've met the requirements to assess but if we don't then we've i mean he went on to explain reasonable doubt and so you have to you have to be convinced beyond a reasonable doubt i mean where was the confusion here if we're all you can say all those things about a civil case as well  well i mean he's not referring to preponderance he's referring to reasonable doubt you think maybe he could have defined it better but he told them they had to find beyond a reasonable do doubt that you find reasonable d after you have carefully considered and discussed all the facts and circumstances presented the case i mean he goes on and on explaining it does it a different way than our six circuit instruction but he does define it and is there any time i walk is there anything wrong with the way defined yes your honor he doesn't explain that it's different civil case nice but that's not in any of them are the thing that i found interesting of as a layman i put on my lame and had a listen to both of these the part in judge clearly that negatively defines it says well if it's merely imaginary speculative d sympathy prejudice or guessing then that doesn't count it implies that everything else is reasonable that once you've thought about it if it's not one of those bad things it is probably a good thing whereas i must say i always find the pattern with a little bit confusing there's a double negative you would not hesitate to act i hear what you're saying about d difference it might be nice to have something that says that it's more d than a preponderance but everything about it including the the standard one and this one is it's way above a preponderance it except for the language and car margaux which i found interesting that you didn't raise in your initial brief i haven't seen people d that have criticized alternative versions of the sword government must meet to two of the supreme court has called a near certitude of guilt if there are no more of the instruction that explain that doesn't mean absolute certainty but that sure applies that it means pretty certain doesn't it there's nothing that implies quantitative statement this is things you would not hesitate to act upon and i like math myself and i never found that it was d very useful d and whether it meant ninety four percent or ninety seven percent or ninety nine percent because there's lots of things that i don't hesitate to act upon you know i may i big bet on you of l or u of k for i don't hesitate to act it is there anything about the math in the standard instruction that you could point to well there is no massive in the standard instruction certainly there that would be a useful way to to describe it or there are other analogies that those of us in kentucky would you importance is that the jury has to know that the burden is higher for a criminal case then for a civil case at the burden for the government to prove each element important but i would not like the court to overlook the sentencing issue there we hear grace as well and the judges believe and and single case you know that will is very you know our history with this instruction ask the question to your friend on the other side you know you know all i can say are are and how you know i'm old enough that i should know the  think you're starting with the reason that there might be more than one right answer all of the family be right you're also starting with a presumptive instruction i mean the whole point of a parent instruction is this is the presumptive instruction it should be given no and so to deviate from that  you know sometimes is there a significant step it depends on the case depends on the instruction should we give a higher level of scrutiny if there is a deviation from the instruction or is it a good reason to do so well i think what i think certainly to put themselves in the position of a party and we intentionally do not do that we do not allow attorney to asked the jury to put yourself in the position of the plane and how would you feel  mr member of the jury if it's improper it's an improper argument i think it's an improper jury instruction to that the jury should be asked to view the evidence reasonably objectively ready not subject to this instruction wherever it came from asked them to to look at it from a subject a viewpoint which i think is just totally wrong and i don't know or who the heck came up with this life i've lived with it for years actually tried clearly modify it a little bit i think it's modifications are actually improvement but the michigan instruction is a great d instruction and the michigan committee rejected the six circuit model instruction when their committee met and i think for good reason so maybe i don't know who's on our model jury committee but maybe we ought to be looking at this as well the wire so he wasn't saying that i know there are a couple of folks here then and he was using it as a way to say what you've done is very serious here and that's why the boss the question at the end of the case that if you didn't follow this rule d it would be a way of judge shopping because if you were before d a judge you didn't like you could you could non supervisory seating go to a new indictment which would potentially get you  phrasing of the instructions either i do want to note that the court has approved and approve that phrase as well so it doesn't make any sense to ask the jury to look at the did i don't interpret it to ask the jury to make a subjective well it it asked them if how would it affect their own lives whether it would control that or it would be a factor in decisions in their own heart and normally we really do look at the evidence objectively and not subjectively you would not hesitate to are alive and act upon it in making the most important decision in your own lives i mean how is that proper your honor we're asking the jury or the jury to bring a lot of things to the court room and we have a similar question where where we instruct them to use their common sense that's that's different common sense is common not give your own personal life ou this would have our vote you know guilty or not don't they depended on your own personal life circumstance that's not really what we asked them to do  i understand the point your honor but there must be some way that we tell the jury that this is important and we we can do that by asking them to look back and compare it to other things that are or we can give them some kind of objective measure we've never figured out what that objective measure is going to be but there needs to be some description to explain to the jury that this is important that it is more important that other decisions that they'll be asked to make in other parts of their lives this is not a perfect instruction but it's one that the court has call the next case