represent the appellant charles simic in this matter charles was convicted after trial in the northern district of new york of drug conspiracy charges charles and i contest the government's facts that he provided drugs to his request to george came in very late in the process yes the it came in late but was considered by the court to governments came afterwards and the court actually accepted the government's  submitted almost word for word what the government had requested the judge however had told the parties to anticipate that the count on the traditional charge dresses provided by sans modern federal jury instructions without notice however the judge then delivered a confusing nonstandard jury charge on dress that is sent was almost word for word with what the government's requested after charles was convicted during the pre sentencing phase information came to light about charles long history of mental illness the judge do not consider that as a mitigating since you factor in or do you consider the arrests as well in fact the judge's comments evinced animus towards charles and his lawyer prejudice trial suffered when the lower court did not deliver the standard instruction on dress did not provide a written charge to review and then gave a charge to what the government requested which had confusing language but didn't inform the defense and that was the charge that he was going to use prior to closing when the judge indicated that he would use sans modern federal jury instructions the prejudice cannot be understated  the jury that the arguments basically we put forth in our brief that you have to consider a reasonable person in charles's situation knowing which charles knew  history of the relationship between these two men but that's not the standard duress that's correct and the standard charge and dress and what we submitted was are virtually identical in fact at the time of the charge of the case of trial what we submitted was identical to what this court held and zach and if you look at our church we dress in our reply brief the charge that we rules must be made before closing arguments the court never ruled in our basic fairness should allow counsel to make it to conform his arguments to the charge when your honour's asking me what i would have done  into question basically at worst gave a i'm sorry at best confusing jury at worst basically implying to the jury that you should ignore history so that was the problem with the charge it while judge sharp said that we had the opportunity to address it the way the instruction was given at best confused the jury your honor and this was central to your argument because what are you saying is that all of this history which came out through charles through master joseph his own testimony where the government's witness mr massa just basically confirmed much of what we had argued as well i'm sorry  but by judge sharp's instruction which is not part of the standard jury instruction it basically confuses jury at best is what i'm saying and basically told them in essence you can ignore it because it's saying that he's subject to belief as to the threats are not to be considered here now the government raises on in its response that the defense request was untimely and i think that's your honor was going initially however the government did not raise that do not object  it was at least confused at best confusing so as a statement of the law you're not arguing that the charge itself is a statement of the law was wrong you're arguing that you got i'm looking submitted by both parties you have to actually look at it almost case by case and take into consideration what have been put forth at trial and in this case to say that the subjective belief should be disregarded is confusing when you say it's an objective test because what it's saying to the jury is his history what he believed should not be taken in consideration but that was the crux of our case even if you know he was going to object as you would have argued the objective you would have made you would have had a way to argue to the jury to fit within what you knew was coming down the pike certainly ron i mean has to be a request and a request under the rule is something that comes in a timely fashion and the rule is very clear that it has to be and under the rule out the judge to set when that and i might disagree that the the charge that was given is is is is not sand what the government did was propose additional explanation of certain terms that are drawn from directly from the sands commentary and i think also your honor here is what's remarkable about the delay is that this was his only defense and this was he had not he had indicated to the court  bly two months before and that the rest would be an issue but never proposed a request for a charge and the judge was left at last moment to come up with a charge under wraps because in that defendant had not indicated either at the pretrial conference or at the charge conference that was going to submit a written request so you know once you ignore the rule the defense so why couldn't he get the charge into their hands before they summed up your honor and that may have been a better practice here i'm not going to say that it was it was it was not you know something that he may have should he should have done but as you're talking about a violation of the rule here are the requirements the rule here have to be invoked properly by the parties and this last minute requests i think you cannot reverse a conviction here and for a violation of rule thirty when throughout the proceedings the defendant to ignore those those requirements that the government has submitted requested charges and a timely fashion there's plenty of opportunity to argue about whether to rest instruction should been i think there's also another factor that's important is that on the morning of before closing arguments both parties knew that they had different ideas of what the charge for direction should be cynic never quested clarification of what the final charge would be even even knowing that there was two different versions and i think what that means suggests is that he was not going to be substantially misled by what the the court i'm sad he knew it was possible the court was going to give the instruction that it dead went ahead and made a closing argument where he argued clearly that mr masters justice prior threats created  so he knew that the court was going to draw on the immediacy issue i understood that that was an issue and i argued for it and in any event your honor i think what what what this ultimately would come down to also is plattsburgh there was an numerous opportunities for mr cynic to report this to the police to believe his family was under threat but this this court has been very clear and that those kind of threats don't  you look at the whole record here he sent over forty packages to mr master joseph over the course of the conspiracy and again he's in california he had every opportunity to take take steps to alert  the case law in our brief that that kind of claim doesn't alleviate you from seeking other means of avoiding the harm you can alert other authorities besides the d n a you can learn the local authorities riggs explain those concerns to them you could have learnt your family members that they can take steps themselves to avoid it this is there's no set of facts here based on the evidence that would have permitted arrest these facts the judge the judge and an abun ground and was also very clear to say i don't know what it what a departure is and i would have variance as i know that there are two different things and the court was correct in st had to decide what the guideline offense level was whether it includes any departures and and i also with the issues of departure i think there's just no good no establishment here that the court misconstrued its authority to depart so i think that prevents further review because he has to as a national matter stab to understand the tests for derisory didn't somehow mistook its authority and it was not it did not say that the jury's verdict prevented a departure i just said that look i sat through the the evidence at trial which is relevant to whether he acted under the rats also is moot but i do i do not think that the court's comments over the course of the trial suggest that it could not put its views of the conduct of the proceedings out of its it the counterargument no we didn't because we know that the court had enough time to consider it because it did and chose to go with the government's actual request and use the charge word for word so it's in the court's discretion whether to judge we don't know what evidence was going to be allowed in fact he has an argument i mean and the courts issue scheduling orders for purposes of managing the case of actively and you as representative of def as you do can to say well we got a way to evidence comes in before i'm going to tell you what i want you to ask you please to charge the jury in the following way but putting assuming all that's correct your honor the court told us he  going to instruct sense and give us that instruction there's nothing that i argued in summation that would have gone against anything in the standard charge of sands what he did was take the government requested additional language that was in the commentary out of an eight circuit case and so when you asked me earlier you know whether the instruction itself was wrong you have to look at the the actual particular circumstances and we quote on page forty of our brief case at the d c circuit talking about the circumstance that juries have historically considered in assessing reasonable ness have been factors that are known to the defendant at the time in question such as the defense knowledge assailants violent reputation here you have more than that you all rule thirty requires is that when requested which i did for a written charge you great given that written charge so we know what's doing so even with late submissions we take all that out the court still didn't give a written charge and told us to rely on sense not on any commentary no it's below the standard instructions this isn't a harmless error case because had so without it with my giving this language that as i've written is at best confusing at worst basically directing the jury to disregard historical data and the testimony open court excludes both prior threats and threats of future harm there is that he had no reasonable opportunity to avoid the threatened harm without committing the crime this is an objective test measure from the viewpoint of a reasonable person a subjective belief then mr cynic was going to the police they're going to the police would not alleviated page the case out of the d c circuit which spoke about the knowledge available to the defendant also has to be considered its argument that this is at best confusing to a jury and essence under