reasons because of the actions of the government and the district court mr williams did not receive a fair trial in this case and the appellate stage i have to say the government makes a number of mischaracterizations and omissions  n important issues from the record the main one being they argued several points that because of evidence reassures should not be reversed because of the strength of their case they talk about yet in the district court both the government's when asked by the district court do you think the evidence was close between murder and manslaughter and they said absolutely and they had knowledge that the evidence was very close in this case and the district court twice expressed that he thought  thought the evidence was very close in this case between murder and manslaughter that's mentioned nowhere in their brief in his very important it seems to me in this court's review of the various issues in the case of the first issue though is one that would just even a reasonable inference for them to draw no for a number of reasons first of all they say they didn't identify really any date when they lived together they did they not only did they have to they had to reside with each other they didn't even wherever scuse me wherever there might have been is first of all there is evidence of a meeting in june that was not it mr williams house both sims and chairs testified that was a meeting where evidence was given into a book to be kept and they did their testimony was that was not of mr williams so there was no testimony of any other meeting in june it anywhere never mind mr williams sells the meeting in july was the meeting on the third when these unfortunate guess the simple answer is it could have been given every entrance and most favorable to the government it could have been a meeting at the on may thirty first yes but but there's no way when you got to remember right there is no evidence of that but in june i think we all agreed in the end in the district court that it means living with and that he was living with his wife so there was first of all there were separate apartments if they're separate temporarily well that's the key w because there is the spencer case where the guy was separated temporarily but then went back to live with his wife or girlfriend no and that in the spencer case in this case what happened was he left mr williams left germany his mother testified came to live with her and stayed with her and no mention of octavia at all his wife at all so you could a separation could i think a separation could be permanent or temporary in this case all the evidence is that it was permanent because the testimony from sims was that in june he was living elsewhere but it was temporary once the wall your view on whether you are still residing so you on the ballot for a few weeks from your spells because you're having problems  i right but first separation i think you're not living with her anymore whether it's temporary or permanent it's eat it i admit it it may be a tougher case if it's temporary but we don't have that in this case it's permanent because i reside with the with the armed services member to come within the statutory yes i'm sorry base there is nothing in the evidence to show that he ever lived on the base i think actually with or without his w say who they were but there was certainly no evidence that they were on the base either and there's actually no evidence that they were in active duty military at the time here but he clearly was in a dependant of those people in any event so the case was tried on  by the government on the theory that he live without t v and in the government didn't even present any evidence that our tavia still lived in germany on july third they did a crucial day they presented no testimony o so that it's not just it has to be residing with they have to be living together so they just presented absolutely no evidence of that and there's nothing that would allow an inference either there was no meeting no testimony that there was a meeting so i have to concede that it could have been as late as may yes but he but he was quite they were both he and sims were very specific but the june meeting that they referred to with the book was not it mr williams  whole the difference twee murder and involuntary manslaughter which we know the government of the district court conceded was very close the whole difference is the state of mind of the recklessness and that's a subject of one of the main components of  reckless and inherently excessively reckless but the government still has to prove that the defendant knew that and the jury instruction said that in this case and the government hasn't disputed that might be the case law is pretty unanimous on  that that the government has to prove that there's a for the subjective component is an object of a little bit of an object or component but the instructions were the fact that a reasonable person would have been aware of the risk would not sustain a finding of malice so in fact the jury's instructed that they have to find the defendant had this reckless state of mind had the subject of state of mind so i think the jury is i understand your argument you're relying on the fact that when williams was involved in this attack initiation hazing whatever the the fact that johnson did not show signs that he was going to die that that  that ought to factor into our analysis of the state of mind of williams as he's participating with eight other people in beating him up it's a little bit more than that it well guess it's a lot more than that a little bit of a cut lip no blackguard no any southwards sorry but the main thing is he was repeatedly asked both sims and sara who testified he was repeatedly asked are you ok do you want this to continue therefore williams doesn't have the state of mind where he should have known that the person was going to die i don't i don't need to misstate you are going to basically get a bit more nuanced than that but that's basically it but if it's but in the dark by pierce aren't there some types of activities some types of contact that we just really don't care about the assessment that's being made by the victim right then that we agree when we proposed the instruction we said that i manslaughter and i think the answer to that person is no although i don't remember whether it's yes or no at this point but the interest in determining the degree of recklessness while in what put this case in the consent box and we all know you can't consent to be heard that that's right that's not that and i'm just i'm trying to understand why the district court did that and it seems to me there's a strong argument why they did that because this case looks an awful lot like those consent cases in those cases we don't we don't care the state of mind of the victim we don't care that they assented to it because there's a certain type of behavior that crosses the line and and when you cross that line we don't look at the victim and what they're saying and so that's what i'm getting at is why means why don't you think this case is in that in that  k why can't we say this is the type of activity that is so inherently dangerous that it shows such utter disregard for the life of another you get eight people not just one person this is this in a barroom brawl between two people this is people ganging up on some of what why can't the district court say why can't we say in that type of scenario we don't really care what the victim is saying that the victim showing that oh i'm not going to die from this essentially you put a lot of them to assist on that and i'm just wondering how you can get out from under the doctrine of consent which seems to me to be speaking to a situation where there's just you know dangerous activity going on that we don't look to the state of mind of the victim  absolutely obvious of both questions i guess maybe they're yours first judge henderson there was no evidence of that in fact he was described as very hyper at the beginning and he was described as very hyper throughout although it lessened somewhat and excit there was at absolutely no testimony that he was ever payer in any way i'm in fact just the opposite pole seems inseparable who said he looked just like everybody else through this whole thing and he never we just was short of breath and at the end he looked just like everybody else so it's not like somebody under the there was no absolutely no testimony that any of his key expressions please yes i want this to continue in the excitement and he used different words that i to use but the excitement it was anyway the effect had that the initiation had any effect on that at all there's absolutely no testimony about that to answer your question ju griffith we there is a distinction between the state of mind for murder and manslaughter that's always been a distinction the extreme and wanton disregard that's required for a murder conviction and to do that you have to assess the person's state of the defended state of mind to do that you have to look at what he viewed that was going on and every time our sergeant johnson was asked he said yes or held yes or another  word and it's not excluded because we didn't try to exclude it from the manslaughter we understood that but the cases the government sites is one case called dura where there was an inch initiation it's actually a manslaughter conviction and the said you can't consent to a battery yes you can't consent to that activity but this state of mind that distinguishes murder and manslaughter it's not the consented solve it's johnson's actions  extreme so it's not concern i think consensus at the wrong time i think you're absolutely right it was used as a shorthand term but the district court clearly understood it pages three sixty eight in three seventy of the appendix the district court said i suppose the fear is it goes beyond the word yes mr johnson was asked are you all right do you want to keep going he responded hell yes a number of times not just once the question is whether those responses are statement constitute acquiescence and whether acquiescence can ever be considered and then he said about our argument judge freeman said what he says it's not the issue of consent it's the difference between the nature of the reckless disregard for second degree murder question becomes are the instructions relief long or are you complaining about the way the how we proceed in that closings and this year you you said what you say and then the government comes back and says you're r governing council did you have any problem instructions standing on the other side we wanted it does add this thing you may consider consent in determining whether the defendant have the necessary malice of forethought establish the crime of second degree murder in other words we made it clear that when we tried to make it clear that it only went to the distinction between second degree murder and manslaughter we don't risk or call the district court refused to give it the government told the jury the district court's instruction precluded that argument and that they could not consider that consent meaning that short in any for any purpose having a do with mr williams i guess my concerns we're questioning the government is is it possible the jury went back there and someone in the jury room says well he kept saying it was ok so i think it should be manslaughter not murder and another juror says well we can't consider that that's exactly the argument you made to judge told them they can't consider it for any purpose you denied our instruction that they could consider it and therefore not only did so they were precluded from considering it according to the government and according to the instructions so that's exactly the argument we made that was rejected and i don't see how the it seems to me the most crucial piece of evidence in assessing mr williams recklessness state of mind is what that if sergeant johnson was bleeding everywhere had a broken arm sticking out if if the government would have put down on this clear evidence that mr williams knew he was in great danger and was very reckless in continuing if he had said no i can't take it anymore  arm i can't breathe i'm about to die i'm going to fall down the government one percent of that is exhibited has the converse has to be true if that's relevant to mr williams recklessness for first degree murder it has to be relevant that the sergeant johnsons kept saying i'm fine health care continue i want this to go on and not just once but a number of times and judge for human right you recognize the very argument we were trying to make and said no you can't make time of the events there is no case that talks about hours later and if again cherished could have taken the hospital says mr williams at that point as is here but i don't think it has anything to do with his state of mind at the time and in math fact that at the time of seroquel and since both said sergeant johnson looked the same as everybody else did after these initiations and no difference he was winded i mean he was a little tired but he wasn't gasping for breath or out of breath seriously who have medical training said i never would have left if i thought he was in any danger and said that he looked fine even cherice who was his friend said when he first saw him on the ground he looked fine he was mistake that this evidence was irrelevant the government doesn't even acknowledge that their brief they just they argue it was they continue to argue it was relevant under a theory the judge friedman said they had a baby in in the district court this theory that  t meant sergeant johnson didn't want was not in it to be killed which is totally irrelevant what his reasons for wanting to have the initiation or his state of mind as to why he wanted to have the initiation or how he went into  it but so just three minute minute afterwards it was irrelevant so the government doesn't even address the prejudiced issue in their brief they pretend as if judge friedman it said it was relevant the only thing they do say about prejudice is the strength of their case which is i just have talked about i know that in the district court they admitted it was an extremely close case vick case law is that this evidence even when not objected to warrants reversal this three cases i think johnson walked out of the courtroom she was asked how she told them that she got pregnant which was irrelevant on their anniversary he came home to help out while she was pregnant on the first doctor visit and then they brought out the date of birth and the name they had even told judge friedman they want to put into pictures to show that the put baby looked like sergeant johnson when he was a baby i mean i think that tells you what why they were trying to put it in because it was so prejudicial now that that those two pictures didn't come in but this test and i cannot you cannot overstate how prejudicial this testimony was in the courts every court we cited his record i that my government doesn't cite one case because they've more the cases that they talk about that so they don't have any current case that says that it's ok the two cases that don't reverse on one was because the testimony came from the medical examiner and the government never referred to it in their opening or closing and then there's another case where there was overwhelming evidence of a drunk driving with multiple eye witnesses it this case again or close case  testimony was extensive very dramatic can't be overstated and the other thing was the government started its closing argument by saying i'm did went home to his pregnant wife i mean that's the way they started a closing argument that was the first thing he said sufficiency question on the residing when hear the evidence that the government presented was sufficient for rational jerk to conclude that appellant lived with his wife and resided with her at the time of the relevant and  exactly and i agree that there could have been additional evidence in the way that this played out this trial i mean i think at the time m j oh it was made i'm sure that a prosecutor in that position would wish that they could turn the clock back and asking a di question but the question and this is where it has to be addressed is whether given the evidence that there was was it sufficient and this is it's a sufficiency review all of the inferences drawn in that light most favorable to the government and where there are three witnesses who testify and there is a time frame there's a two thousand and four to two thousand and five time frame that's generally put over at the that's their house that's where appellant was living and his wife was living and then you add on top of that a narrowing down the timeframe using that june was different somehow you have charles who has testified that he's joined the gangster disciples organization the group in april or may and you to know that he attended a meeting at at the words that seems testified till he says that he's moved there having marital problems i think we were talking about you know are they separated and what would the effect of a separation be i think it's somewhat telling that no one suggesting that they're separated or divorced they're having some problems marital problems are you staying with people and he was all over the place i think that statement you can draw from dad's that he has not moved out he doesn't have a new know is again the testimony was unqualified that's their house we're live with rocky not that it came appellants house we know that at the time of helen has separated from the military which is in may of two thousand and five said octavia gets dependent status or her has then for a while and which places her still to be independent of someone they must still be located there and serving in the military and then we actually present at that meeting appellant has tried to point to kind of be evidence of what happened after sergeant johnson has died to suggest that that is an indication that  intention to continue residing with their remains as if that moment that's a game changer the fact that he at that point goes to one of the other members of the organization says i need to do this because i've got to get out of here because they're going to come out after me and leaves the country i mean i don't think that that has any bearing or relevance on the question of both for he found out that appellant before he found out that sergeant johnson had died as a result of this suggested that reside with requires that the person be on every night you know surrounding the critical time frame be physically present in the house it must be that issue no i think in looking at that consent question it's important to step back and understand how this all played out over the course of the final everyone was attempted to jail was to me the argument that he's now a very good i wanted to have the jury consider the facts the circumstances you know what how sergeant johnson looked at this kind of the jumping but he tried to make that argument by calling it consent and that's where i think here is the issue here and what the government picked up on in rebuttal and said the judge is going to tell you consent is not a defense so understanding and it's also that in assessing state of mind and that's what the government picked up on in our view you can't consider consent but both parties then went on an appellate court on separate from that passage that kind of spurred the comments from the it multiple times during closing our view to the jury consider the fact that his appearance during the jump and considering that sarah who said that he didn't think that he needed any treatment consider that he was telling you know essentially telling the members of the group at that time that he was ok and the pilot had the opportunity to make that argument the government's rebuttal comments were very focused on consent and then you look at over you know what the judge was the way to instruct them instruct the jury since the jury had not yet been instructed the judge was very clear with the jury that we've made some minor changes after these arguments and i'm going to tell you the line you were to follow the law as i instr the attorneys arguments are not evidence and that is the judge's instructions that are the instructions the duration follow and i think it's important to factor into the consideration here judge friedman also offered to appellant in the defense yet telling the jury that they were free to consider all of the evidence knots you know straightening evidence or argument as improper or not in doors seeing the government's rebuttal that would allow the jury to have understood that to the extent of how it was asking them to look at kind of how everything played out not whether johnson subjectively consented to it s but how the circumstances played out that that was keep going as part of this process but come on let's step back and look at this distinction between second degree murder and manslaughter and how it was presented to this very based on the evidence and based on arguments the distinction between those two the government the argument the government made to the jury was looking at after those statements that i'm you know hell yeah they kind of i'm fine made statements after that what happened during this six minute looked terrified he looks scared and that's the kind of peace that the government latches on to an acid free considering those fats in his closing argument that malice and so have nothing of value kind of this consent issue in whether the jury could have which again i don't think that they could have been confused and they certainly didn't indicate through any questions that they were confused by it as it gets i think it's think that i am going to shows that it was not certainly not once he had fallen back into the group and was on the ground in piecing together i think that the evidence was that he said he was ready at the beginning after the first time she got back up and reaffirmed that he then was knocked down i believe began and then the next piece of the jump and it's testified to is saying of the mass melee when he is falling back in being held up into the group and at that point which i don't know precisely how many seconds but i think he improves there is that it wasn't very far in at that point there's no more testimony or suggestion that he's saying or being asked created in this case of why we how do we get here how did we get to this juncture and the story is not to incite the jury with you know any suggestion of that they should be thinking about a child you know left behind but the story is simply to understand why sergeant jackson want to join the gangster disciples why didn't he you know start this process in his because he was about to separate from the military he had you know was planning for how he was going to start this business at home where his family was going to be and i think it's see it is the first reference but it is not highlighted in any sad and sad as in the manner in which this testimony could be prejudicial is simply part of that background piece of the story the white house your response to the there's no suggestion in the record that there was any emotion at the time that this these particular questions were asked they were asked under actually get then goes through cross and read or at the end there's no further mention of the  pregnancy testimony at the time they can eat or johnson is leaving the work room i think it's understand it's understandable and perhaps to be expected that this was highly emotional both preferred testified to trial related to were in discussing this the legal distinction the degree of recklessness in a sufficiency argument about what needs to be shown for second degree murder as opposed to involuntary manslaughter and i think it's possible understanding that those comments are motivated by the idea that it is a fine distinction it's a distinction of degree of is it reckless or extreme ratliff's and even if you take the even after he you know goes to the analysis of questioning whether the relevance of the pregnancy test mean he himself when it sat through this entire trial and understanding his view of the evidence would find that this was harmless given the cont city except that you are looking in again prosecutors of you in the district court judge if you are night binding on this board it's this court's view of the evidence that is what matters to you saying you are looking did himself but that this pregnancy testimony in context was he said it would have been harmed and steve is it your argument that this type of activity was inherently excessively reckless the people are going to beat up on someone that we're dealing with the type of activity in which we can infer that this requisite malice is there yes it's just such a dangerous activity i think the jury absolutely could have can be proven by the nature of the acts themselves here and i think and what the government nature of that activity it wasn't even just the group it was at the point that he is held up by others and on twice as many if not bored you know based on the various pieces of four to six and nine year there was testimony that there was no picking before that there was a prior jump and you weren't allowed to be held u you hit the ground and couldn't get back up that ended the jump then all of those things led to witness this characterization that this was unusual that this wasn't the norm so to the example you're looking at what was this anger jump issues surrounding the use of the expert why was there an expert needed here what was the point of the action but i think part of the evidence and we came in in the theory in this case was that you have this that's not a standard get the expert was relevant to you put that in context to explain kind of the significance when members were refusing serial cover up their tattoos and appellant was sending messages you know threatening them if they didn't cover the between the gangster disciples international and the morning room star and the expert was asked questions about the specific tattoos on the ramstein members the jewelry the pictures that stances and clothing to make it understandable and aid the jury in crediting testimony that williams would have been the one to firstly deny that he was there and that was one of the defense that is that a jump in was led by the governor of the that his presence would be likely and that that defense was unlikely and that he was the one who would have been directly involved and setting the tone for that and i think that effort was relevant to all of that as well as understanding the witnesses testimony and allowing the jury to understand and make those credibility determinations based on their past money about kind of the interaction between appellant and the  the meter and whether he lived within the government says at the time of the motion for judgment of acquittal you'll remember they incorrectly stated their brief that the court just reviews it is about time we renewed our motions and the defendant's mother mr williams mother and his commanding officer testified and they never asked either one of them did mr williams still live with octavia either so they have ample opportunity if mr williams in fact lived with octavia to add to ask more witnesses about that in this cour it several times he didn't give time frames and whether that was meant in june two in the government never tried to narrow it down it with respect to the meeting since did say then that twice a month what he did say was that one of those june if they were to meet he first of all in say there were two meetings and it was only reference to one and he didn't say and that was not at the house he didn't say there was another meeting syria who said they met sporadically so the notion that there was a second meeting  if there was a second meeting of the it some house that he reside in that is just a sense the speculation not any evidence at all in invade the talk about the dependence status in two thousand and five but there's others and then he and mr williams came in for two or three minutes and it wasn't until after that so that would be five to six minutes according to mr simms sirrah get your brief says by halfway through or at least johnson no longer was good he was not as hyper is that one along yeah there was no testimony about how far into the six minutes that extended so that's just a misstatement by the you know there was testimony right what that that was half way through right there's no testimony the number of minutes of when that occurred in america government left on another important point at the end when the people didn't hear that the six minutes was up sarah who testified that it was mr williams who yelled out stop stop time is up when the people didn't he participating and since testified that it was for him to not not anywhere near eight people punching him it one time was the testimony and sarah who confirmed that testimony about that he and alice did not participate the johnson was one of the nine people there this and then just to make clear what i argued with respect to the consent was we understand the consent is not a defense but it has to factor into wh intent or anything else and that's what that was the crux of the defense in centrally distinguishing between murder and manslaughter they were tall and then just friedman said refused to give any corrective instruction to that by the evidence is there out there that we can determine this from because the government had told the jury they couldn't consider this whole thing about he repeatedly saying yes and we just emphasize that there was no such evidence to determine the state of mind because they had been precluded and we were afraid it would make it even more now the government says the jury didn't send out any questions or seemed confused and i would say that's right they're the nub of the problem they were clearly told by the government they couldn't consider it the district court destruction's gave them  no basis to consider so no wonder they were confused they were told they couldn't consider sergeant johnson's repeated affirmations that he wanted to continue in even if however many minutes thirty seconds  there's no testimony at all in the record of how close to the end he didn't say any more or wasn't asked any more there's no question however marmet is that's not a reason to  life and he was human twenty two years which of course is fourteen years above the maximum for manslaughter so it had dramatic consequences it and it also affect the office level of the destruction charge as well but our theory in the end is that the meijer convictions should be reversed or insufficiency of the evidence and that the threat conviction everything else goes without but even if for some reason the court doesn't think the drug conviction goes with it which i think it does the threat conviction still has to be reversed on the all the prejudicial evidence that came in the pregnancy the expert consent it's going to speak to the expert a little bit  was there was before trial the government told the district court that this group gauged in drugs and robberies and crimes and that there they were they were all initiated in the united states and remembers before they went overseas and of course none of that turned out to be true and judge friedman even said when they tried to when he revisited the issue at trial he said wait a minute everything you told me none of that none of these people were abducted before they went overseas there's not even any evidence mr williams was inducted before he was in germany sarah who said i can't remember and he said this is been presented to me in a different way so he cut it back but for some reason how it would could be possibly to be relevant that the testified that the group was not allowed to use the word union be that was disrespectful to women and yet when the expert testified he twice he said the meeting of the word mob of this expert testimony there was no need for it it was totally irrelevant in most regards almost everything he said was totally irrelevant and a lot of it had been testified to the when the army guys including chairs and sergeant johnson came back from iraq was the first time he ever heard those words in the spring of two thousand and five so this testimony was utterly irrelevant and extremely prejudicial talking about prison gangs and the meter count and the tampering count be sent back we go along with that or if the court thinks that that doesn't go along with that which i think it does for the reasons in our brief that that count be reversed for prejudic hours probably after the events thank you very much ok thank you very much the case is submitted