at least the court my name is wendy holt and i represent mr stamper the only issue in this case was whether mr stamper knew that kay was physically incapable of declining consent but that's not how the jury was instructed the jury was instructed only that he had to know that he was having sex with her and that she was incapable of declining consent in fact in this case the jury was specifically told that it that the government was not required to prove that he knew his acts or omissions were unlawful in essence under the facts of this case the jury was instructed was direct a verdict was directed against him to question a to request the appropriate jury instruction in this case stampers trial counsel did not have to anticipate a change in the law nor did the eight circuit cases brew chair and really hard add an element to the offense of sexual assault had his counsel he did the admonition contained in that at the beginning of the pattern jury instructions of this court he would have seen the admonition that they are not mandatory and must be reviewed carefully before use in a particular case so if he had requested a modification of the instruction what authority would he have cited at that time he could have cited  actually a plethora of supreme united states supreme court precedent he could have gone to the rule in particular case where the statutory the statute did issue was  very very similar to the structure of the statute in stampers case in excitement video that statute is set out at page four of my reply brief that the structure of that statute is almost exactly the same as the structure in case and there the court held relying on even older than one thousand nine hundred and ninety four cases morris said reinforced by staples instructs that the presumption in favor of a say enter requirement should apply to each of the statutory authorities from the united states supreme court and said we need this element read in to our jury instruction but he didn't do that that's correct since this time our case our court has come down with additional case law that says that that's not an element right no your honor we have an ineffective that's almost identical if it is but in the case that i believe that you're referring to price in that case the there's a footnote that specifically says we don't we're not saying that proves there isn't controlling here we're just saying that the penalty isn't such that it can't essentially be matters today here's my problem we have our you know are you aware that we have a petition on bank activity pending on this issue i'm not ok just take that as a hypothetical if we have pending and bank activity on this issue in this case does that mean we should hold this case or what should we do for grappling with the question for both of you if we're grappling with the question about whether or not the defendant awareness of her incapacity should be an element is that going to be outcome determinative here yes i mean if if the knowingly element applies to her inability to consent or to not consent actually is an issue of her inability to decline participation then the instruction on that is determinative so just to be clear we're talking about i don't think there's any question he if that in that hypothetical world would be that this statute still requires the jury to find that he knew she was and capable of consenting that's what we're talking about right yes specially under the facts of this case where there was a lot of evidence that she you know even though she said i was blacked out nobody else was seeing that ok so blacked out as in blacked out not passed out blacked out as and walking talking but has consume so much alcohol she's not recording memories that's what we're talking about right and that's what the medical people such of a saw ok ok so we're talking about ineffective assistance of counsel right right and he didn't do any research he's testified to that so so the case this united states supreme court case out that you're citing he didn't find he didn't argue for any variation he did not he did he have any other defense that he was running at this trial he interesting way enough he didn't even identify this as a defense connected to that element he sort of did he said it was a consent defense but lack of consent is not an issue under this statute it's whether the person is incapable of declining that consent was the fence would be what he said i mean what stampers position is that he could not possibly know that she was incapable of declining consent because she was not only walking and talking she was sexually aggressive toward him there's another witness who testified she passed out passed out not blacked out and ronnie and that he carried her to a back bedroom so this is a this is a disputed trial right but there's also her own testimony contradicts ronnie and marlene's because she said i was kicking and screaming and then she gives a very detailed description of what happened after ronnie and marlon and marlene came in and she says that she remembers drinking right and that she blacks out and then she woke up and mr stamper was on top of her right ronnie says that she bet passed out and he cared about better before leaving to go get more alcohol and then a police officer enough to be i agent testified about the statement your client gave that night which is very different he says it was all consensual she walked back under her own steam so the jury had to resolve all of that and i have i want to add one fact to what you said when she she said i woke up and he was on top of me and then i was kicking and screaming ronnie and marlene said when we walked into the room she was a dead limb those are two completely different yes but those are all those are all for the jury to decide right right we're just talking about as a matter of law whether or not the jury needed to be instructed that he had to know that she lacked consent exactly so my question is did he have any and this is what i think was getting know that the victim was incapable of consent or could not convey that consent to the defendant i do not believe a ruling in that is determinative in this case here today because the ultimate issue here is whether counsel was ineffective provide an effective assistance of counsel back in two thousand and eleven when this trial took place and then also on appeal which carry through two thousand and twelve and was ultimately decided in february of two thousand and thirteen prong because if this instruction had been presented to the jury there is no indication or no reasonable probability that the outcome would have been different here because  agent who did testify at trial no see when stamper when the f b i agent initially spoke with stamper following this offense a couple days after stamper immediately ought to himself into a story his defense was cemented at that him and ryan stomp the victims cousin well actually ryan stump had a left which had left the defendant mr stamper and the victim homo no one else was there that is contradictory to all the other witnesses that testified at trial he said that then she said come with me which he interpreted as being the sexual aggressor to go back to the bedroom at that point he says they had consensual sex but stamper even goes a point further and states he knew how actually intoxicated she was f b i asked you know on a scale of one to ten with one being the least amount of intoxicated with ten being the most intoxicated how intoxicated was the victim and he said in eight he even compared himself in intoxication levels to the victim and even the other witnesses and said he was less intoxicated and so this directly goes to whether the defendant knew that the victim was incapacitated that she could not communicate an unwillingness to engage or was physically incapable and that was all presented to the jury and again the government's position is that you can deny his claim on the objective reasonableness prong but also you don't even need to come to that conclusion you can deny his claim on the prejudice probably because there is no reasonable probability that the result of this trial would have been different given the defense that stamper cemented himself into when he spoke to the f agent and what was presented and again the jury considered all of that and they listened to a completely contradictory stories of the other witnesses including the victim who said may interrupt you right here because when you're going to give us some really important facts and the witnesses that testified ronnie stompin marlene u p they left the house that is that portion of time where they leave the house to go find more alcohol and they were gone for a while right it must have been three thousand and forty five because they when they went to a convenience store they got stuck in a ditch you know that whole sequence i don't want to take up your time but they must have been gone an appreciable period of time correct which chris ok and then the other thing is that was confusing there's two ryans it took a while to figure that actually my clerk figured he's watching right now i want to give him credit so there's two ryans right correct and one to cut can you give me that ryan stump is a cousin the testimony from all of the witnesses besides the defendant was that he was also very intoxicated he passed out i believe on a chair on the floor in the living room and i'm trying to keep track of the two ryans because there's this discrepancy about whether they all left or not ronnie and marlene left where the two ryans ryan sangre was the other witness it is a little unclear he did not testify at trial but i think he left to go get more alcohol but he didn't come back right that's correct left as well and somewhere in between the car in the ditch he did not return to the house and again i don't mean to belabor the point but i tend to well i tend to believe these points when they came back the rights ronnie and marlene the go to the back bedroom ronnie decides he's going to go check on his cousin and so our other ryan is missing in action is he passed out somewhere or he's not part of the he didn't go back to check that was the concern when ronnie and marlene returned to the house after getting dropped off was they did not see mr stamper but ryan ronnie's brother was still passed out on the floor and so that's when the concern came of oh my gosh where is mr stamper and kay and kay and at that point they go to the back bedroom and it is telling that the jury sorry they meaning ronnie and marlena did they wake up ryan ryan from my understanding was still passed out on the ground but then they went back to wake him up there is a discrepancy when they get to the back bedroom and i think it's just the two of them arlene and ronnie yes about turning on the light and seeing what about that discrepancy opposing counsel mention that they say the witness is standing in the doorway i think say that she's limp as in passed out and she describes it differently yes ronny's testimony is that once you cannot see mr stamper and ryan his brother is still passed out on the hour he immediately goes back and he describes mr stamper as having sex with a dead limb that the victim was completely unresponsive her eyes were closed no movement whatsoever and that he was engaged in a sexual act with her at that point the lights are out the lights were out so if the jury had been instructed that you have to figure out whether he'd make a finding whether he knew that she was incapable of consenting i guess the best they could argue is that  was she went back there under her own steam minute some point in this sexual act that she passed out went from blacked out condition to passed out conditions that what they would have to argue your own i believe the evidence  was that she had blacked out or was essentially asleep in the living room and at that point they carried her to the back that clearly except for the defendant's testimony which is that she you know he didn't testify his version of events is that she walked back there did ronnie and the other a runny said he carried her back there did the where the other witnesses asked about whether she walked back or whether ronnie carried her back i believe they were clearing marlene  testimony she said that marlene ubi said that ronnie had carried the victim to the back bedroom ok and she also had stated marlene and that and actually at page thirty seven dollars of volume three marlene specifically said that ronnie picked her up and took her to the back bedroom except she also said she was blacked out to she wouldn't know that and must have been told that right that's that's my later so that all there goes to the nd prong of strickland the prejudice that there is no reasonable probability that the result would have been different because the defendant this was present in the jury that the defendant subjectively knew  the six men and guarantees reasonable competence not perfect advice advocacy and judge with the benefit of hindsight and i wonder if i can use just a moment of the remaining time to touch on the st prong but if you look at the cases that were available to counsel in in law that's her argument that staples in the earlier case law was out there from the united states supreme court to district court relied on problem one it's just and i'm asking you questions about prong too because probably one sounds pretty sticky to me what's your best shot on problem one your honor the government's position on problem one is given that the model instruction in two thousand and eleven that counsel used is still the same model instruction today that has not changed in fact there has not been a change in the law and the court is correct that  exists in two thousand and eleven is still the same today in the th circuit we do have the case of bruges year out of the th circuit which has gone contrary but given this court's opinion in price that appears to be contradictory to the th circuit and my last point with the applying the knowing standard to every element this court in judge word was very well reasoned opinion and price states we have explicitly rejected the notion that the courts reading of knowingly and florists figure compels the same reading in every criminal statute that uses the word knowingly that has to be evaluated independently here in this circuit of two thousand two hundred and forty two to be and that question is still unsettled which comes to the conclusion and the government's position that counsel is not in effect of in two thousand and eleven thank you in versus united states where they very clearly applied the knowingly element and basically said there's this plethora of case law out there this is well federal law so i think that they ha answered that question are best to argument on the issue of prejudice the jury instructions in this case substantially lowered the government's burden of proof and essentially to corrected the verdict against mr stamper without the correct instruction he didn't have a defense with the correct instruction the jury could have found what the evidence showed that she didn't take the position that he was unable to perceive the victim was unable to grant consent he never took that position he took the position that she had gresley consented so then how was he produced by the failure of instruction that for a position  didn't take if he didn't if she was a great sexually aggressive toward him how could he know that she was incapable of consent no he would have thought she is capable of consent how would how would incapable of declining consent because of her actions oh come on