they place the court i'd like to be that begin by addressing issues number two and five in our brief issue two deals with the court's instruction number twelve which defines the second element of the section two forty two offen and that is deprivation of the constitutional right to be free from one reasonable seizure and issue five deals with court's instruction number fifteen the definition which defines willfulness with respect to an instruction twelve the this case implicates the location of the line the page the new york draws in situations valving warrantless entries into homes in this case shows that the lie that lying is flexible instruction twelve is prejudicial to several reasons first of all the jury was not instructed on the whole law of of arrest because this instruction was based soley on on the peyton case although the evidence supported instruction based and the last and perhaps most prejudicial aspect of this instruction is that you serve the jury spac finding role to decide whether mr bayh's was standing in the doorway a public place or what was inside his home when the arrest occurred in other words the instruction printed the jury from deciding where the peyton santana law line is drawn and whether the case is controlled by paperless it dan in in arguing about the instructions counsel pointed out that the arrest was not illegal because mr bayh's was standing in the doorway at the time and the jury should be instructed allowed to decide where he was to get where his location was at the time of arrest because that's a question of fact that was directly related to the ability of this arrest the court in instruction twelve the court told the jury that arrests that occur in someone's home are presumed unreasonable unless one of several conditions are true and the court also instructed that the jury could find that mr mr quarter arrested mr bayh's in his home without a warrant if they found that he arrested mr bass in his home without a warrant without without a warrant without consent and in the absence of exigent circumstances then they could presume that the arrest was reasonable but defense counsel wanted an instruction that was consistent with santana case and counsel proposed instruction that said that the doorway to one's home is a public place where no one has a neck and reasonable expectation of privacy and they are subject to  in the course of the trial the court recognized that the pagan and santana presented competing case law and the judge said that that competing case law would be hashed out in the instructions but the fact of the matter is that it was not during the discussion about instructions the judge took the position that santana was actually different from the case here because in santa anna the diff the defendant had some evidence in her hand she went back into her house and left the door open and the court noted that peyton was the more recently decided case and it held that under the fourth amendment a firm line is drawn at the entrance of the house well exigent circumstances and consent the threshold cannot be crossed without a warrant but the court also said in this case that it could sit in the doorway to be different from the threshold and that no reasonable jury  that mr mr bayh's was in the doorway as opposed to the to the to being in his residence but the courts the courts come i did the court reached that was the video important at the trial oh absolutely a yes in the video as course we've we've watched the video there was a screen door or some kind of anti first and then and then you can see that there's a sort of a glass partition or in the in the doorway you can see mr bass come to the door mr mr bass opens the inside do because i i think i think that the threshold can be my definition of what a threshold the a threshold would ordinarily be outside just outside the door and when you open the door the person who is inside the door is not would not be in that direction but in the house now sour unified in a different videotape i think gives it a reasonable juror could conclude that he's in the doorway as as if it actually your jury was they were working from that video so they drew their own conclusions some fact the the the instruction of the instruction said he was inside that's that's true right i'm sorry it's good so i'm just figuring where's the the court decided as a matter of law that he was inside from the video but it's not a question of a matter of law it's a quick matter of fact a question i understand but your argument has to be that the instruction is that's an error of  instruction which was rejected is that when you add in the first line or the state rather not aspect the doorway of one's home is considered a public place as the discussion you've just had with the other members of the panel indicates  case that's inside the house and as judge cook pointed out the jury was best fable to see from the camera footage just where the parties were at all relative so i think i can see an error  should have been allowed to answer and they could have answered that if the court had given defense counsel's tendered smarmily it's up to the court to define terminology not the jury him or stand in front of it you are still in the doorway and i again i think that's a question that the jury has to resolve where women's debases location was in terms of peyton and sa him let me in the time that i have judge let me sign some up because i just want to touch briefly on the second issue and that is instruction of a fifteen defining  there's there's a significant problem with that instruction because the last sentence of paragraph one allows the jury to find that mr couper acted willfully if he sees mr bayh's knowing or recklessly disregarding the possibility that this the seizure was constitutionally and reasonable and what that says and what that does is it allows the jury to convict based on  possibility that mr mr couper violated the law of violating a specific indefinite constitutional right just the possibility did they be evaluated the law that's that's the question that the instruction of the fifteen poses it allows a conviction just based on the possibility that the law was violated and that that instruction conflicts with the reasonable doubt standard and believe the government of it's proof  judge givens question regarding the def mission of what is the doorway santana itself defines when somebody is in the doorway and therefore in a public place and the way that's intended defines it is when somebody is subject to public view speech hearing and touch and hear baze was not subject to public touch because a judge could noted there was a screen door between where officer quarter was and where derek bays was and counsel didn't directly answer your question judge cooke about who opened the screen door because the video is crystal clear it's not blurry officer quarter opens the screen door you can see this a few seconds in after he gets to the door he knocks on the screen door opens the inside door quarter opens the outside screen door and then proceeds into the room so that's the first reason why santana doesn't apply here the second reason santana doesn't apply here is that this court's decision in the sorry case this court held that santana doesn't apply when somebody comes to their doorway in response to a knock from a police officer so a police officer can't deprive somebody of the fourth amendment rights that they enjoy in their home by knocking on the door them coming to their door and then saying hey you don't get any of the rights that were attached to you while you were in your home because you responded to my not so and here it's undisputed that baze only came to his doorway in response to officer quarters for these two independent reasons the district court properly held that the case was governed by peyton and not santana if the court doesn't have any specific questions on that issue i'll turn to the w fulness in the statute in two forty two includes acting in reckless disregard of a constitutional right so the second argument that he had is which which is the one that he emphasized this morning is the language relating to possibility in the last sentence and his argument seems to be that the jury was allowed to convict based on a mere possibility of a constitutional right that's simply not the case to reach that argument you would need to ignore the rest of the jury instructions so instruction nine says that you have to find each element of this offense beyond a reasonable doubt and one of the elements of this offense to find instruction twelve is the actus reus an actual violation of a definite constitutional right so the jury here had to find separately beyond a reasonable doubt that  had violated an actual constitutional right and in this element the willfulness element defined by an instruction fifteen just find whether officer quarter did so willfully and reckless disregarding a risk of or possibility of a constitutional violation falls within the definition of woeful miss as the case we say state in the third and fourth circuits have held in more in johnstone as well upholding the possibility language and b its very nature a reckless disregard incorporates some uncertainty about in the office or has had about the right issue linguistically reckless disregard as a concept has that gray area and so including something like risk or possibility was entirely appropriate and in any event here there's overwhelming evidence that officer quarter knew exactly what the rights at issue were he was trained on three separate occasions and there was extensive testimony on this there's testimony from kirk quarter himself that he knew about all of these rights and there's just overwhelming proof that he knew the rights at issue here if there are no questions on the wo misconstruction i'll just note that quarter raises a number of other challenges to areas conviction and sentence in this in his briefs i'm not planning on addressing those because his counsel didn't focus on those today if the court has any questions about any of the other  structure that was given was proposed by the government so it came from our proposal and our proposal in turn came from those two cases that i mention johnstone and more from the third and fourth  circuit is where the language the challenge language in the second sentence comes from and so we prepared this proposed instruction based on on those cases because there was no model instruction in the  on this particular issue thank you thank your own question is just curiosity also how did this incident come to the to the u s attorney's attention i don't actually know the answer the question one point is missed missed the base did not have to answer the door and the fact that he did put it put himself in the doorway at that point another point that i think is worth making is with regard to the screws case and recklessly those those mental states are mutually exclusive and inherently contradictory and if you look at instruction for fifteen as a whole it nullifies all of the other instructions that the court  it talks about the possibility that the seizure was constitutionally unreasonable even though the other instruction instruction twelve for example told the jury that they had to find that mr  a constitutional right well maybe so but then instruction fifteen it says you can convict if you find that there was a possibility that the the seizure was constitutionally reasonable so no matter what other instructions were given th the bottom line is the jury could still convict mr couper based on only the possibility that he violated the law with him but the jury would have had to answer the other question first that he did  first you said they are asked two questions the first one seems to undercut your argument about the the prejudice that would arise from the answering the second that reckless you said they had to find that he first that he arrested him in wrong i think instruction fifteen to specifically said that that the conviction could be based on the possibility that the jury with also instructed as to the elements of the c bit was told that the government had to prove beyond a reasonable doubt and when it's discussing the will on this requirement the intent requirement that's one of the elements the the client and the jury's not required to find that there's a constitutional violation until it has also found the requisite intent head or at least not a constitutional violation but one that validates the statute although they have to they have to find the constitution that's one of the have to find the constitutional violation but they also have to find that t violation was was willful and that's where the problem that's where the problem arises in instruction fifteen because willful is defined as yet the willfully if he sees mr bayh's knowing or recklessly disregarding the possibility that the seizure w