there is one main overriding issue which influences the decisions that follow and that is you is that once the government concedes in the breeze that instruction should be given does that instruction have to be given correctly or is there now free rein to have numerous errors and destructive missed instruct the jury based on a theory that the appellant was not entitle to the instruction in the first place ask for things you know we did and we end and that's the point in trials parties gain certain advantages through stipulations through waivers it could be  argument that there was no foundation for the admission of evidence it could be a jury waiver what's that right it's earned it's earned and so that the analysis with regard to error with follow from that point forward there is a government's government saying listen he was made argument agreed that the instruction could be together government had an obligation it could simply state your honor he's not entitled to the lesser included offense the government objects and we want to continuing objection instead what happened all i see that he is entitled to this and we're going to move forward and advise the court so everyone agreed at the trial that this instruction should be made current event it was given included offense must attach to a specific count for the jury to deliberate under three point one two the jury must consider each count separately now if you have three counts of assault with a deadly weapon and you have one lesser included of simple assault which count are we talking about how can the jury meaningfully deliberate if we don't attach the lester to a specific grader and then once we have a decision how do we interpret it that issue was never discussed and the jury can't now meaningfully deliberate because it doesn't know what it's deliberating on which one of these sticks why are transmission's constituted the cow in addition the reasoning of the court and council was wrong each wire transmission is a count sorry go ahead finish it and teach securities fraud misdemeanor with an attached to each one of those counts but let's accept that it was all going to you would say if you were standing here and they had charged your fifty shares of x y z and he sends six wires to do that you would say yes that six counts of securities fraud right i would say yes it is because it has the wire element and that decision has already been made every time there's a wire transmission here now committ the crime but let's accept for the sake of our knitting what crime every time there's a wire transmission well by crime you commit securities fraud because it has the wire element as a requirement but let's just i would i wish we had  issue for the sake of argument we still have one count and it has to attach to a greater things otherwise the jury can't deliberate and decide where the lesser offense would apply it was seems from reading this transcript perfectly clear the consul knew the alternatives he didn't forfeit it he waved no on on some issues he waved it for example the issue about whether or not there would be six count that was weight on the issue of whether or not to attach to a specific count that was never discussed it was forfeited it wasn't weight fraud and he didn't argue that he said you know white house i want you found when you find him not guilty you can't reach a conclusion of whatever it is on the first coun is fraud then one count of securities i don't see anything we've seen any clearly knew what he was doing so it appears in the right you know he didn't have any idea what he's doing he wanted to make an election and he thought that there was no choice in other words the election is if the jurors have any doubt on any element they should turn to the lesser offense which is why he was trying to go with the six count methodology the court thought it was the opposite that you don't have that election dissuaded when he was mis instructed by the judge this is not a waiver because he's making a decision based on incorrect understanding of the law and this happened again and again as to his election after the jury had been instructed and after the jury had been reinspected on this question he then says later on hoops i think maybe i'd like to do it a different one time there is a timing problem and and it's an issue presented by both the government and the defense which was either he had the intent or he did it it's an inconsistent compromise verdict over many many days of deliberation which followed evidence of confusion through the question in the end you can't have a lesser included offense not attached to a specific greater offense so he was deprived of the benefit he gained when the government agreed to the instruction it confused the jury and cause us not to have faith in that result do we want a conviction where we know that the judge was in error the defense was in error nobody really understood what they were doing we can't have faith in that process thank you you have got good morning your honour's counsel john tucci for the government i was trial counsel below the manufacture of a lesser included misdemeanor to wire fraud was done in this case by defense counsel deliberately and with calculation it was not an accident and it was calculated to get a chance at a misdemeanor to reduced the exposure of the defendant here now i understand that the defense doesn't want to own fully that mistake now because it didn't work out it was as it was calculated but the argument that the government is somehow responsible for this instruction and the errors that follow if there were errors by not objecting to the end doesn't make sense because that's not the test for invited here as a preliminary matter the government is not situated in the was that if the defendant is aware of the right that he's giving up and knowingly relinquishes that that's the end of the deal it's waived we don't go to forfeit we don't even go to plain error it's waived so what the government did here whether you advised good good strategy bad strategy to try and manage this instruction once it became inevitable it was given is immaterial except to the extent that the government by objecting initially definitely made sure that the defendant was aware of the right he was given up by pointing out hey there is no lesser included to wire fraud and if there is it isn't the securities fraud statute the elements don't match so when you argue what do we have to decide in this case you know in  my view in the government's view we simply have to decide you simply have to decide that this was a knowing relinquishment of this right to the proper jury and all that flows after that instruction that was accurate on the wall with regard to lesser included to wire fraud if he was not entitle to a lesser included at all it all becomes irrelevant true no well i'll be understanding if it doesn't become irrelevant in the sense that he was told there is no such thing he still wants it at the threshold we ask ourselves doing assuming the government didn't  waive it he says i want to lesser included the government that we have jack securities fraud is not a lesser included offense of wire fraud if you apply the elements test which you the court said i'm going to give it anyway the government all right now if that's not a waiver then he's not entitled to a lesser included in the first place and how he couldn't be harmed no matter what happened after that is that right that is right and so if we were ever to get to the plane error analysis there's no prejudice because because what we end up with in the end is an up or down on the felonies right so so there is a threshold so now we assume the government did flick it in and decide that a lesser included offense was great although it looks like they were instructed on the lesser included felony offense right he was yeah because you pointed out to the court if you're going to go to a lesser included misdemeanor offense now you're really out of sync in terms of saying it's really lesser included right actually this we did say that but we also told the court if you're going if you want right he said we never agreed that the court we never agree that there was only one lesser included and only hooked on if he sat out all of the wire and correct do you disagree with that statement yes i do because because in the record we have a clear colloquy where this is pointed out and mr ross defense counsel it at the time agrees with the court that there is only one misdemeanor for the six and it relates to the transaction the sale transaction as opposed to the six individual wires and you would say that's a waiver not a four picture because he clearly knew what the parameters were is that right i would say it is a waiver your honor ok i guess i would also say that if it's not a waiver and it's a forfeiture and we go to plain error analysis it's not even it's in there not even be error but it's definitely not playing air because at this point  extrapolating on the law which is what was going on here there is no clear precedent to make this plane it may well have been right in that realm moving beyond you don't have to feel compelled to use the time there are no questions i do not thank  statute or dismiss the count and do it again but under that scenario dries and benefits because he hasn't been convicted so there was the potential for prejudice under this scenario and there actually was if the government's not going to be held to the words in their acts on the record when they agree that instruction should be given we're going to have a problem so they greeted the instruction and we have to get it correctly it wasn't given correctly and as to the issue of not attaching to a specific count that wasn't w