misconduct during closing arguments although the jury did not impose the death penalty mr prisoner still received a death sentence he's currently serving five life sentences consecutive to one another this highlights the fact that the government had when it made the errors during closing arguments cumulative errors when taken together and prejudice the defendant as much as the singular reversible error and violate the defendant's due process of law now the government committed three errors during closing arguments and many of these arguments were committed during the rebuttal the government extensively argued two counts where the court had granted the motion for judgment of acquittal the court had specifically stated was harmless based on all the other evidence regarding his criminal activities your honor there was significant evidence in this case but the problem that we are presenting is that these are some of the last statements that the jury heard the jury right before it goes into live deliberation is being told about the acquitted evidence they are hearing a misstatement of the burden of proof on four other counts the government is vouching for eight of its primary witnesses and these statements cover all of them by car count seven counts that he was ultimately convicted of and due to the fact that there were so many errors right at the very last monette we believe that use other witnesses as examples and corroborate the added and so million joe said that this happened and annie well she said the same things so therefore they're all telling the truth this is very different whereas the government is using evidence and facts that are not in the record to vouch for their own witnesses for example they say things like if i were as was going to lie he would have said something bigger and better to make his testimony better well if that's the case then the government is is basically implying that the witness is telling the truth now the the fact that that was the government just says you know what you could garza testimony where the government brings up a murder and says well garza was going to help himself he would have penned this other murder on one present oh well that murder wasn't even in plain wanders in a wasn't there there were there was no evidence that he was connected to that again they pulled it out to say well look at our witnesses this is a witness case there was no murder weapon there is no d n a there was no fingerprints they the government really relied on the witnesses to testify and if the government believed that it had such a strong case it wouldn't have needed to do this especially at the end to commit these errors while on that list look at some of the non challenge witnesses like taur some herders as well like a sing in testimony the cologne murder phone calls the howard murder video of racine o committing the murder and related phone call your honor i would say that evidence is not significant it might be well we've maintained the position that the the evidence is significant but the significance of the actual witnesses testifying and stating that either one person and told them or they were with him at that time is also very may please the court i'm suggesting that the real reason we're here today at least what i'm arguing today is did the jury instruction dealing with racketeering conspiracy yet acutely provide the jury with a clear understanding of what it was they needed to decide what it was they didn't need to decide it's a who's preparing this case one thing that surprised me early on as i was not the only person that was confused about the rico conspiracy jury instructions i noted that amongst other people judge simon and his discussions with the lawyers in the jury instruction conference raise concerns about the confusing nature of the rico conspiracy jury instructions especially in light of the fact the government at that time was seeking a pinkerton instruction as well  doing so he echoed the this court's concern and the but i'd be case about the confusing nature of rico conspiracy instructions as being challenging and confusing and as we set forth in our brief i believe that the rico jury instructions in this case specifically instruction twenty nine is so confusing that away jury would not be able to understand the issues that they were required to decide and therefore not be able to make the required findings that they were required to m the further confuse the matter the jury was provided a jury instruction thirty four which also dealt with the rico fourth paragraph so but you have a big problem here because there was no objection so we're talking about plain error here and i'm having trouble finding plain erroneous two or more x really it's a seven circuit pattern struction and there was no objection judge we acknowledge that there was was no obstruction here no objection here i would suggest to the court that  generally construes waiver in favor of the defendant and i would ask that the court do so here because there were fifty six overt acts listed in the indictment right there were some of them including those murders where i reference certain testimony that is correct and what i would suggest to the court is that the fact the mere fact that those murders which were the predicate acts that they were committed the government of south concedes that those are separate and  counts nineteen i believe nine thirteen fifteen nineteen and twenty one don't require any kind of a  agreement to commit the offense it's merely committing the offense they are separate and distinct offenses and the government acknowledges that no brief so merely to say that mr bruce and all was found guilty of those offenses misses the point because they're not required to prove the agreement and it's the agreement in the pattern instruction and especially when taken into can consideration with instruction number thirty four which omits some of the this court has also suggested death when the when there is no strategic justification for a for not objecting that the courts have relaxed the waiver principle understands you believe that the question becomes can the government proper some reason why the defense where wouldn't object and there is no reason why the lawyer wouldn't object that no competent criminal defense lawyer would not have objected to these trial the jury convicted him on that conduct now on appeal mr present you know challenges various statements made during closing arguments and one obstruction excuse me instruction none of which were objected to down below so best case scenario for m court i'd like to take a step back for a second and just affirm to the court that the department of justice and our office takes any accusation of prosecutorial misconduct extremely seriously regardless of its merits as we stated in our brief we don't think there was any error in this case but we have looked at this case extremely closely we've gone through multiple people reviewed these this briefing in this case and the trial attorney in particular has reviewed this we will have training on closing arguments going forward but with that being said i think it's important to note where we are in this case and that's that mr presented did not object to a single statement or are you meant in the trial court that he is now objecting  now is he has to show any of these errors were so egregious that a seasoned judge like chief judge simon should've stepped in and said no this is wrong it's impermissible and rectify the situation even if you make that showing he then also has to show that these errors so infected the trial that the jury couldn't rendered an impartial verdict he hasn't made that showing unless this court has particular issues that like me to address i was going to just run through quickly some of the evidence related to that incident and that's because mr present your didn't move to strike all mention of that incident had he i don't know what the court would have rolled but i feel extremely confident the court would have said no it's a reasons we stated in our brief namely that there is independent relevance for that particular the incident it showed mr present standing feet from the gun that was used a couple months later to kill harris brown misrepresenting it was charged with that murder it showed the practical reality of the rule that the imperial gangsters had that if you testify against an imperial gangster you should be killed mr any of us had previously testified against imperial gangster and mr present said that a party we should kill them it showed that mr brasilia was in the gang it showed the existence of put guns and it was an overt act charged in the indictment there was more than independent relevance for this particular incident and had defense counsel thought that any mention that are in the this murder should have been stricken presumably they would have gotten up and objected or the just the court would have said no this is out of bounds you can't discuss it instead defense counsel actually mentions they are in the us murder and closing argument and says the same gun use for the brown murder furthermore we think the error if there was an error which we don't think there was it was harmless those counts didn't go to the jury they didn't get a verdict form on counts twenty five and twenty six defense counsel said you don't have to consider this there's been those are off the table also you know an attempted murder where we can see the defendant didn't say shoot him didn't pull the trigger can hardly be prejudicial when compared to the five the witnesses testified to x if they were really looking to curry favor with the government they would have testified to something much greater mr byzantium hasn't distinguish those cases specifically alexander and clark in tal afar and you know it makes  sense he hasn't challenge the factual statements of the government he says you can't hypothesize that really if a witness were trying to lie or make their story better they would have said something greater i think that's a reasonable inference based on the record and this court's found it's a reasonable  ence based on facts i did want to discuss the burden of proof shifting argument we don't think that there was an error in this case defense counsel's theory of the case throughout had been you have to find that these cooperators are lying he admittedly doesn't say the word liar but when the government objects and says you call them liars he also doesn't say i didn't call them liars he basically concedes that it won't point he says i'm not calling them a liar but which we all know is kind of code for i'm calling you a liar and that was the defense's best shot in this case truthfully there were as judge williams pointed out there were a lot of eyewitnesses there were a lot of individuals to whom mr percent your bragged there were videos there were ballistics it was an extremely strong case based on some cold murders and even if the government did in error and you know maybe cross the line on the burden shifting that error in and of confuse the jury as to that count let alone any of the other counts judge simon made clear that the burden remained on the government in his opening instructions he made clear during the closing instructions the sentence some of the defendants i'm sorry some of the conspirators were facing life imprisonment and they were given a five k or thirty five fifty three emotions which allowed the district court to sentence them below the life sentence that they were otherwise facing and that testimony came  our brief the defendant doesn't have to agree to commit specific act predicate acts he doesn't have to have committed them themselves and that's what the instruction says the jury understood it and even if there was some confusion the jury did understand that mr byzantium committed five predicate acts namely the five murders and it wasn't just that they had to find that he committed the murders if you look at instruction forty three because the were these were murders  to maintain or increases position in the imperial gangster enterprise the jury had to find that this was part of the enterprise and that's what they did we some that even if mr present here has shown that it was plain error to give t your honor we to appreciate the government's statement that they reviewed the closing arguments in that they will have some training on that however we do maintain our position that the government was wrong in these closing arguments and they did commit error and that arguments there was very little if any case law on arguing that after a motion for judgment of acquittal the misstatement of the burden of proof is very clear of what exactly would have to happen for this this for an acquittal to happen in this case and about showing that but again you have a problem because counsel didn't ask that that evidence be stricken that related to that acquitted count right your honor we have multiple problems with the lack of