we do have a a motion before us motion to supplement the record that we should address before we start you know this case involves an extraordinarily the court below earth as a matter of law and failing to instruct the jury on recklessness and negligence gross negligence and as a result of the night us our constitutional rights resent the fact the defense we because you you asked for the instruction and so your best hope is that it not be knocked out immediately by the invited their doctor yes your honor if i get just my position in my argument that issue on the on the plane or will be handled by mr i'm talking about through the charge recklessness and the as it pertains to the non clean water act counts ok and our position is that it was an error as a matter of law and when we want to address that issue i say we just go to basically two pages of the transcript of the charges cotton charge conference on march twentieth of march twenty ninth secretary sure you were urging those charges because you were going to defend that conduct was reckless yes not that it was worth of the that's correct that's that's the big line judge our position was what the unique thing about this case is that the charging document create a situation where negligence could be a basis for a crime and negligence could be the basis theoretically could have done been done but we're precluded from doing that if i just give you just a brief moment we look at what took place on the charge conference on march twentieth the first day the issue of recklessness the government took the position that our charge submitted to the court according to comes in and does a reversal and when you look at the reasons why the court gave for the reversal here you have the prejudiced represent us from having a meaningful defense we go to the march twenty ninth transcript and the joint appendix five seven six eight when we finally realize that reckless is not going to be charged this is what the court says in explaining one eating recklessness is a heightened form of negligence when she said that that was a matter of law that was an error we well that's not can't the transcript be read to understand the district court judge's ruling to be if i insert instruction about another level of mine of mens rea and here one that isn't in play i will be inviting confusion for the jury and i don't want to end it have the jury confirm so i'm not going to start talking about a level of mens rea and that isn't in the case but respectfully it isn't the case and i'll tell you why august eighteenth even pick a jury all this eighteenth of zero five i said to the court at the negligence level right and then there are no one violation correct so how is it that recklessness is in the case at all if those are the two things we asked to quit be mindful of two opinions former versus brett in which scotts is the difference between civil negligence civil recklessness and criminal recklessness and i asked the court to consider justice alito as opinion last year in global tech where they do act as a dichotomy between knowing and w blindness as opposed to recklessness and gross negligence our position is and the court referred to the threshold we have a threshold she gave us on this side of the threshold was innocence and what did she give us on this site she said the defense could be civil negligence if the jury found that you your conduct the not exceed the standard of conduct in order to put in person to make sure they get you you're not disagreeing that if we accepted her ruling that this was under the clean water act negligence your your assertion isn't that recklessness was properly in the case somewhere your assertion is we're worried the jury would be confused if you didn't instruct on reckless i could be you know that's completely opposite our position that when you look at the sliding scale of mental states you have negligence civil negligence you have gross negligence and you have recklessness that side of the balance sheet would be non comparable blameworthy conduct the only time the becomes couple blameworthy conduct is when you cross that threshold and you get to knowing in willful our position is and then you've got me lost i don't know whether i'm your fight my hypothetical or what you guys asked for negligence instruction you asked for the lesser included offense you got it now i'm just asking you to assume for the sake of discussion that that ruling is correct and that and that what the district court was looking at on the playing field was i got some counts that might be found on the basis of ordinary negligence or everything else is got to be knowing was if that would that be an accurate statement for the district court to have assuming she was right about the ordinary risk gross negligence is that is that an accurate   counts because our position was that we may have engaged in conduct that constituted reckless conduct reckless that we're aware of our conduct cannot conduct was unjustifiable and it caused a substantial risk that people would do something they should have done so as your lost i don't understand i don't understand if it's the case that there's negligence and there's knowing and there's no count as to which a guilty verdict could properly have been returned on a reckless  well i guess i should ask you that is that in fact the case that's the case arc and why are we talking about recklessness because the judge said i don't want to confuse the jury about reckless because our position is that when you talk about the sliding scales of mental states reckless is a component the jury could consider as not culpable conduct but if they are arguing is that they were confused they'd be confused if you didn't disabuse them of the notion that recklessness could be in the case that your argument i'm saying that i'm saying that the jury was not given upon anything south of that my words out of that were saying recklessness is a state of mind that the jury should be given an opportunity consider our defense should not of have been on those counts and the just simple negligence and what you want to say what you wanted the judge to say was if they were reckless that's not knowing and you can't find him guilty it's exactly right right so since the judge repeatedly said in fact at one point and example i repeat a defendant cannot be convicted of conspiracy based on a state of mind that does not rise to the level of knowing and willful participation conspiracy the judge is saying to the jury repeatedly except for on those negligence counts you can not where negligence is the basis for a conviction and negligence is charged as a defense that the jerky be confused that if they thought the only option for the only option for the defense was simple negligence then they are i think people said in supreme court that the opera felony conviction and in the process in opting for the felony conviction they were not given the opportunity consider something else which was reckless and i thank you jodi secretly very very much mr i mr critchley i don't know if you you took yes were denied a fair trial in our particular case had we known about this pretrial we would have arguing on behalf of the institution the plant or i am as but there be some parts judge with regard to the individuals because the individuals the five individuals mind the company the five defendants find the company we have to defend them absent them being rogue employees but had we had this information ahead of time we would have investigated i think the record reflects when they see arise this given given the amount of paper which is that asked on the rule sixteen gig leo and the issues here and the limited amount of time give us will you just several of w consider the moves agreed use examples of violations in that area judge like just use one particular aid with regard to that there is this long as it's not one hundred pages yes not a very i picked the short one specifically says if the government intends to use a statement a trial but see this and provide for that charge it provides or if the organizational defendant we get it's a statement described in rule sixteen a and that's correct edge and b we get the statements whether you're going to use the witness a trial you know really stay with us right remember got any of this judge we got no written we when you're talking about it there were statements made by these individuals the grand jury is a copy of a written statement we never got that for a total number of employees when did you eventually get well you know let's separate let's separate word however into problem when you did let's separate the word never which was you were a little bit ago  those situations where you received something that received something the late judge if we can separate those we see if something is in janks some things we never received and some some items for instance rough notes we never received throughout the entire trial we never see those with regard to twenty nine employees that they qualified that are binding the company we never got the opportunity to investigate it and when we did you know when you say we're binding become your your argument is and on an interpretation of sixteen a once you little to right correct which is that it's the  is if you're saying that the behavior of the employee combined company then everything that that particular employee says whether it has anything to do with the case or not we get that's correct ok now charmers decisions when you're on but there's later authority from that court that that rejects that position doesn't it judge i believe that's the correct position believe it's the position that want to be adopted by this cou asserted and i think i understood you guys to accept this that they were giving you that what was bothering you was your reading and it is chalmers is reading as well that we get every statement made by those defendants not not only statements associated with the behavior which allegedly binds and landing is that correct that's correct yes we did it on at least three or four occasions during the course of the discovery pretrial asking for it over and over again individuals that that that means no individual defendant could say as to other witnesses in the case give me everything you've got they would have to wait for jenks sixteen  meant to recognize the duality of employees in an organization and ask the behavior which they could bind the company to you've got to give them but as the other statements you know what's wrong with their rationale that  you'd be giving organizational defendants a windfall to take the chalmers judge the thing that's wrong with that is that assertion is incorrect there were five in a total of thirty four employees that testified twenty nine we say fine the one and twenty four others and we listed all of them for five individuals that were employees we abided by exactly what you're talking metrics we got their trunks material and we cross examine them but for the rest we're entitled to it because we don't it's a constantly moving target as to what we're going to defending us and we were surprised and the prejudice was huge james you know it was you see the prejudice was huge with  who i think you just showed us the paper on the right you cross examine him they say you cross examine probably six days eight eight days a page and just if i had the actual testimony of what mr rush said he a trial lawyer from a jury is these guys don't know what they're doing and i think the eight days of course examination which was basically working one night some to four o'clock in the morning into trying to interview witnesses tripping him up searching over records had we had that thirty days before trial we did kill him because we did prove that he wasn't there on friday night we did prove the same thing we did on december fourth and fifth he wasn't even working we could prove disprove almost everything he said we could have done the same thing with my name is hilary brunelle with the law firm knows the mason i represent craig davidson mr davidson was a supervisor in atlantic states and he was acquitted of all the clean air act and osha violations his clean water convictions were based on the testimony of and i might i should say to the court and we just mutually exclusive verdicts based on russia's testimony the only witness who said that craig david said had anything to do with the night this charges the jury in this case found that mr pretrial in one of its admissions the crime of conspiracy to commit a negligent act simply does not exist under these circumstances this court in gross said that it would be peyton we unfair to leave standing to convictions when one of them is for a crime the and one was based on a very specific finding of negligent and death are the conduct under conspiracy that's the exception and pow that this court braced in gross the cole the government's fallback is that even if conspiracy in this case with interrelated parts and there's no way at this point to just simply say that they can be removed from the case now the trial is over how d would a fare on it by itself without any other objectives and the other conspiracy objective is simply unknown because there were inferences about conspiratorial conduct that arose from those other objectives and i just want to add your honour's at the other the other issue here is that objective d can't i believe can't be retried because of the jurisdictional issue at no i disagree your honor the whole point of palis is that an acquittal is not a specific finding a specific either fact finding or mens rea of finding in this case what we're left is we know that in all of those sixteen counts and you're clean water the jury said negligence every single time and that's your finding that the government can just undo with speculation about what what what the juries intent might have been doesn't how talks about  therefore permitted under the law in this particular case this is why that footnote in power and this court's acceptance of that footnote is so important when you have a specific jury finding that's the record that's the finding it would be it would be painfully unfair to sort of be finalized those jury verdicts with speculation about what they meant what this what what this review importance left with is a specific finding of negligence and in fact like i said the government said that the crime two specific discharges subsume just count well there was there was a claim that it was done over a period of months i think i believe it was from december one nine hundred ninety eight through february of two thousand so it's a factual matter what's factually inconsistent said no there was no overall intentional finding the jury said negligence and again we're speculating and and the thing that so called america this case is that first of all the whole juxtaposition  yes i just want to say with respect directed d in the in the possibility of retry the conspiracy i just want to add because the government never introduced any any evidence like it did under the clean air act about that essential element of jurisdiction under the clean air act they actually called a witness who testified about a joint federal state program there was no witness about this and i just want to caution the court that the face of the permit say nothing about the joint state federal program so it's introduced into the case only by nature of the judges that are now thank you very much thank you s of your colleagues the issue of you invited erica yeah right and my question to use the concede that even if it's not invited there or we're under a plane air review standard that's correct you're ok and if it's plain air review i guess what i want to respond to is that the argument that if there are only two circuit decisions out there and they both go against you how can it be plainer for the district  t to have instructed on ordinary at the time this case was being tried the only decision out there was the hand of sect decision that was directly on point in this case that being the status of the law we couldn't and legitimately argue to the judge that she should give a lesser or greater instruction as related to the clean water act the statute basically held in hand a second that negligently violating the statute had a higher men's rate than criminally violating the statute that was the status of the law at the time since that and judge cooper pointed out in her memorandum opinion a page twenty seven footnote seventeen which i think is documentary seven twenty one characterization of what safeco unequivocally means if the if the ruling made at the time is made on the basis of the only authority extend how can it be plain error to have done what she did because i think your honor your given the on the option of considering whether or not it was plain error based upon the change in the law that has result as an unstated in safeco and in the end that is referring to united states versus indian transport which it similar situation or the court was permitted to what's your authority sort of proposition i mean i understand the authority for the proposition that a later change in the law might get you out from under the invited error doctrine but what's your authority for the position that plain to review is done on the basis of later developing law well i think if you analyze the later develop the law and you look at it in the context of what the model penal code was back which talked about gross negligence in the context of the clean water act so it should have been plain who were then i believe so judge that and also what was tough position to take since you guys are the ones who asked for the instruction safeco and was interesting during the period of time we are trying this case the third circuit model jury charges are being constructed they were complete yet in the third circuit model jury charges it called for a gross negligence standard in a finding under the clean water act so in a matter of fairness i think the argue would be it was plain error in in reviewing what occurred here in the record is certainly affected substantial rights all of the fence particular my client who was convicted of necklet yes judge it seems to me in the context of the criminal case it just seems illogical that you will impose a lesser standard that in the civil case the civil case talks about gross negligence when you're flying in the civil the what the one standard and they say doesn't apply to the other standard that was in it included a willful versus a intentional or grossly intentional conduct interpreted the statute it would it didn't have to do with the clean water act that dealt with  fair credit reporting act but the decision in that case directly directly implicates what happened here so our position is ripe for consideration by this court is plainer because we submitted it clearly was there and of course the rights of our clients were it please the court michael sullivan on behalf of scott folk are mr folk was the human resources director at the plant and i would like to have the court look at the cox accident which is sort of the central theme against mr and i'm going to make a sufficiency of the evidence argument i've been doing this for twenty years i don't think i've ever done that at the court level i am well aware of the degree to which  at this level you're not retrying the case and you don't have the boots on the ground and you didn't sit through the trial but i ask the court respectfully to remember that this is still the venue of last resort for an individual who's who was not in fact proven guilty because there was not sufficiency of the evidence and i hope to grab the court's interest by going first to a quote from the government's brief the government's reef in which the government was trying to boil down why there was sufficient evidence against mr folks about having participated in some kind of a of a cover up the government says in its brief it page two twenty four quote extensive involvement in the activities of the scene of the accident made it highly unlikely that he was unaware of the scheme to repair the breaks and i suggest that that's as good as the government can do and that's not enough and if i can in my short time just freeze frame a couple of moments on that day for the court tragically mr cox is killed by a forklift mr shep police department mr sheppard then testified that mr sheppard was in some kind of a meeting a discussion in which mr shepard was told essentially take the forklift take it down to maintenance and have them fix it i'm paraphrasing but essentially that but critically there was no testimony from mr sheppard or anyone else that placed mr forward at that meeting within earshot of that meeting or being told about that meeting later the next step in the progression was that mr sheppard said essentially he took the mr sheppard accompany the forklift going to the maintenance area that mr shepard tested the brake with his hand that it wasn't working the next day and no one testified that mr folke was involved in that that he was present that mr sheppard ever told fogler that mr sheppard had tested the brake the next and i have only two more steps in this process the next step was that mr ford was told by the ocean inspector to arrange to have the forklift brought back up to the area where they were doing the investigation mr fogler did arrange for that and then mr fuller was asked has anyone talked be as anyone i'm technical correct answer to that should have been i don't know leading to some inference that the jury could draw the conclusion that mr foote was lying about that we remember the facts at this point in the timeline there are no facts as we as i have just discussed or would suggest that mr folk were was involved in any of what the government says were corrupt discussions so when he said to her if he said her and the testimony is that he said to her no no one has manipulated it touched it played with it or or whatever was the jury could draw from that there's no reason there's no evidence in the record as yes that he had any corrupt knowledge that it's very unusual for the court to get involved at this stage in that matter but i i really ask the court to look very hard at the facts with regard to whether mr folks as opposed to anyone else was involved  it may please the court one more bark on behalf of the government i just like to introduce at counsel table i also have andrew goldsmith and john snow from the department of justice who gave a lot of assistance on this very big with this brief so i happen to agree with you so rather than go why don't you start with that that there's nothing really that directly ties missed here yeah i mean this one this one was a little bit then let me let me set the  setting a little bit to that i would point your honour's to the very thorough and meticulous opinion that judge hooper did on on pretty much almost every issue in this case except for the discovery issues which they didn't raise but she she spent over one hundred pages talking about sufficiency point by point by point so you'll be able to see she she focused in on this count and each individual in it the the point that i that i would emphasize the most and just so you know this not only was not perfunctory in terms of length but she actually did throw out three three counts when she was doing her sufficiency review but she said on the remainder the evidence was strong she she did one of the things that i did in my brief as well i guess i took from her unlikely as if that were the standard of proof let me point first to to the to the piece of evidence that i think it's most crucial here the the the mystery action here was all about the  forklift obviously in the fixing of the forklift and between the time of the accident and the time the inspector came a few hours later mr colbert was the one that the conspirators chose to take to eat him in a round in and shower all this so you can have some inferences from that but the key is really the questioning that went on to them is there she said and she's an inspector from osha and she's trying to get to the bottom of this accident and she asks him what is absolutely a crucial question in this case she says was that forklift tampered with did not i'm sorry did anyone touch that forklift now if he legitimately did not know although it was coming from maintenance which is a place that you would think maybe maintenance was working on it he had an absolute obligation to say i mean i don't know to say i don't know rather than mislead that person and say notion that was a representation we through with i don't know oh i don't know would have been fine because then she would have had reason to go and find out more about whether or not it had in fact and this was a representation by the about ordinary people who were mary parlance you know what they're saying is for the best would allow us to use this no rather than i don't know response as a basis for finding some sufficiency here in his rule with respect to the well what you see through the counts is that he's the one who's running human resources and he's the one who who the osha compliance people come to pretty much whenever there's a problem and he you know i i'm sorry i have total recall right now of the individual instances in which he was otherwise caught lying to the ocean specters about accidents that theater or didn't happen but but i do think that judge cooper did  in in her in her opinion but i say it was an inference it was inferential i think there's a lot to be affirmed of representation at a crime scene you know if it were a police officer and someone asked you know you about a crucial fact in the case and you legitimately didn't know what had happened i don't think you would make an affirmative fact something the government rest pretty heavily on in this case this wasn't the crime scene in fact in the context of discovery dispute i'm not mistaken the government's been hit the table pretty hard saying these ocean busters are not criminal investigators and that's why you didn't get certain things associated with so he's the government trying to have it both ways saying oh you know for purposes of criminal liability you should have treated this like you're being faced with a criminal investigation and speaking to a criminal investigator but when it comes to your obligations for discovery that's just regular the more you about that i mean how can you get that ways now i see your point just short and i'm not going to i'm not going to push that one it was about allergies there were police officers there that day investigating obviously because a death had occurred but to the extent that someone from osha was coming around disclosed to the to the defense as part of the well i think i don't know that she kept verbatim notes of the questions and answers my suspicion is that she did not but again this was this was a crucial question that she needed to know about i mean the whole the whole point of this vote isn't that the position the rough notes don't have to be given and i'm i'm wondering if your justification of that is in light of the specific any relevant written or recorded statement by the defendant yeah i mean what what in that what did what do you look at in the rule that says the government's got the authority to say well those written  the word any can have different meanings that if if the if this statement is otherwise i'm codified in a final report and that final report is accurate  then in fact they have gotten they have received the statement that they're entitled to the ordinary meaning of the word any any well there's any and there's all i mean that there they are summarized i mean let me just say  the uniform practice is that we preserve all rough notes as we were ordered to do and we give them to the district court judge to review to see if they're inconsistent upon request of defendants that's an interesting practice but i guess i'm trying to  find out what your other than that's the way we do it what's your position on the law for why you're entitled to take that position where you are the the position is that if it is in fact the problem with rough notes of agents are that they can target they potentially contain and frequently do contain a lot of work product a lot of ask really in camera review well we do we provide them to provided through to not the rough yes and we provide the rough notes to a district court judge and the district court judge reviews them to see if they're consistent and we so the position is a five gotcha correct is u sing the written report is the equivalent of and in fact better than if we'd made a xerox copy and taken a magic marker to it to redact the work product we give you this type of person and if you have some basis for saying we're entitled this occurred during preparation of mr rush for trial testimony so it would have been on the record doesn't precisely reflect it would have been within a few days of of when his testimony went forward the government's position is that the better practice is to turn that over immediately that technically under the rule it does not count as a statement of the witness or the defendant that we intend to introduce at trial because that statement  applies to for example when you're going to have an officer or all anyone a law enforcement person typically testified themselves about the actual statement this was a witness who was going to give sum and substance of the same testimony at trial but it doesn't technically fall within the rule although it's our practice now to turn those over immediately it sounds like what you're saying is the government is the later in the game it gets the less you have to give notice which seems a little upside down doesn't it well it is it is slightly a little bit offend and frankly it's not what the justice department today is urging prosecutors to do when these things develop trial you know these things do happen we're talking about an eight month trial and we're talking about a delay of a couple of days so they say they were severely prejudiced by the failure to turn this material over without a response that absolutely not your honor in fact they can't show any prejudice at all because what's absolutely we could not have turn this over pretrial because we didn't have it so i may have the timing three days before when they when they received it and when they received it and robert rush was on the witness stand they cross examine him for eight days they went to town on this and they did exactly what they would have done if they'd had it three days earlier in fairness to their cross examination it may in fact be that it wouldn't likely have there been a timely disclosure of that matter isn't it  i'm so i could you put that it's i don't understand why it would have i don't see how could have been different that the timeframe is immaterial here i mean he was still on direct when they learned about it when they objected to it he's they start their cross much later i guess if they'd had it three days earlier i don't know what else they could have done but exactly what they did call him a liar time and time again in closing in cross examination say you just made this up and it wasn't there prejudice and i think just sort of standing up here and saying oh our whole trial strategy would have been different what is insufficient let me just say i think that's the fundamental problem here which is they're asking an appellate court in the first instance to make  prejudiced finding i've pointed out several times and in my briefing that they filed a two hundred and sixty some page post trial motion seeking reversal on pretty much every conceivable ground this should have been presented to judge cooper who could have said first if they had objected at trial when when most of these things came in and second she could have said and help this court decide whether or not any of these non disclosures were in fact material to their defense to ask the appellate court to make a determination on a chart of two hundred you know alleged violations is almost impossible and i think there that what they're trying to do is sort of overwhelm the court then if you would speak to the piece that question  asked which is their interpretation sixteen ones to why why is their view which you call a novel one even though chalmers is on the books evidently not novel why are they wrong well i'm let me just  this rule the way the government reads it then see two doesn't have anything this one that's the you know that's at least the judge's view in chalmers so they are pressing the line which has been of him i says it is if you have an individual who is in let's say an employee at atlantic states and they see twenty different things but they are just a mere observer we're not going to tribute any contact to that person but they've seen every bad thing that's happened there their position is and our position is that that's not discoverable you've got a second person who sees one thing that we are going to trigger that does one thing that we are going to attribute and that is discover we both agree on that they say if those two separate people are the same person then all of a sudden they get everything that the witness saw in addition to everything that the participants saw and i just think at a fundamental level the rules of discovery need to make sense they shouldn't turn on the arbitrariness of whether it's seen by two people or one person it needs what discoverable for a defendant depends on what that person is seeing and whether or not it really is something attributable  to recklessly what judge cooper said in phatic lead to them is i'm dividing the world into two parts there is knowing and willful and there's negligence no matter how severe and i'm giving you negligence no matter how severe there's no reason the stor critchley could front of that jury and said ladies and gentlemen my client was negligent he was rowsley negligent he was reckless he was so bad but judge cooper has told you several times that that's not enough knowing and willful now she didn't say reckless she didn't say you know gross negligence but she said you know knowing and willful is absolutely required for everything we can out and for him to say that they were not free to make that argument every was going to jackie point out we didn't object to reckless when it was in the instruction the judge herself concluded that it's just going to confuse the jury but it wasn't you know it's a pure choice of language issue and the notion that a district court judge errors by defining knowingly without reference to recklessness when recklessness is not an element of of the crime is that's an awful one for me your honor more so than the than the chalmers point and i think on the i don't know if you want me to address the mutually exclusive burdick's point or an intentional and that they're not mutually exclusive it's hard to imagine how if it really is a lesser included offense finding on the greater means you can find on the lesser i think that's just common sense may be blah blah blah blah blah the support of the quote but i don't want the word recklessness to be charged or describe to the jury what's next that's what the judge said specifically to us and warned us do not dare go near that on your on your  part is mr moore marko got up and the government would like you to believe that these things with mr rush were done on the day before or two days before three days before you testified not true record mr christie's cross examination others cross examination one month before this trial he met at least five times this is on a cover twenty seven and zero five on page eight and you can take it from line fifteen to the end he met with him in trenton for hours hours is that that the government is just lying when they said it came up in the middle of the trial and your evidence for that is that they met with him and and prepped him pretrial i'm not sure i follow the logic of saying because they have to pretrial that means it must have come out pretty sure we we asked them specifically judge this was cross examination after these things came out and they said it was only one day and then we went out and said when was it was it was a month or five or six me to fix the brakes nobody ever touched the thing i did exactly what jeff mary told me to do leave it there don't let it touch it until she gets here but totally contradicts mr sheppard totally contradicts his testimony and what makes it worse at the time a summation mr goldsmith got up and he says to the jury look ladies in general we have a handshake deal with mr shepard we trust him he trusts us that developing for a witness and you're vouching for your star witness and that's impermissible