if it please the court my name is dominick genteel i am the attorney for terre might say on the very second paragraph of the introduction to the ninth circuit model instructions it reads the instructions in this manual are models they are not mandatory and must be reviewed carefully before use in a particular case they are not a substitute for the individual research and drafting that may be required in a particular case nor are they intended to discourage judges from using their own forms and techniques for instructing juries the second page is kaviak it says the ninth circuit court of appeals does not adopt these instructions as the finot indeed occasionally the correctness of a given instruction may be the subject of a ny circuit opinion and that's why we're here may was the instruction given  trial correct the instruction given a trial it seems to me they said he answered with a yes or no no it was not correct it was not khurana correct represent the l at the time in the ninth circuit but it totally ignored bryan and there's a reason for that but what you saying is the instruction was correct and circuit we should take consideration of attention the existence of brian which he did not nor that the government got it into toy and the courts said that it was consistent with current supreme court law and it wasn't assuming you're right i'm not sure you are but assume you're right that shaw somehow is inconsistent with the toy where the twenty to fifty five is it doesn't fall below the applicable standard professional care for somebody to not object to circuit law perhaps that law should be changed by the supreme court is it is it strickland efficient in incompetent representation not to object to that instruction in order to preserve the issue for the supreme court yes that is outside the range of reasonably competent professional a competent no competent lawyer would simply say the ninth circuit's decided this i'm not going to challenge it no competent lawyer would say that without researching it that's what this is all about here's the ultimate error in the case was the failure to object and the failure to propose and bryant instruction but the root of it was the failure to do anything at all other than accept the pro instructions given by the prosecutor your adversary in a case and not follow the introductory kevvy of the model instructions themselves that's where the error comes and that's where the standard lies and the standard the basis of the stand you know we put in some declarations and those are nice i understand that they are also something that the court can look to you can also look to the a b a standards or the nevada rules of professional conduct but the real strength of our argument is the introductory language that the model rules themselves they tell the lawyer that he's supposed to research them so let's get back to your basic contention answer to judge hawkins is question why is to toy in wrong brian just says as a general matter when used in your criminal context willful is one which of the defendant acted with knowledge but it doesn't say in every case  with a specific statute and that is under that statute willfulness doesn't require knowledge that your conduct is unlawful why is why is to toy inconsistent with brian brian doesn't set down a universal r as a general matter but you've got to look at each individual statute well every application of brian since brian by any appellate court has any appellate court found that that actual knowledge of that your conduct violates a statute thirty's required with respect to this statute one thousand and one yes the third circuit and then i hate to mention his name but in the d c circuit were very articulate opinion and that issue was written by judge kavanagh why do you keep mentioning me i'm not trying to curry favor and maybe i wouldn't be anyhow if it's going to be the opposite but but be that as it may this is at this point in time as between brian a joke you and i know you know you can't be too pleased with the joke because it was the solicitor general that turned that around but he did it for the purpose of recognizing that brian applies to that situation basically says that this is the law of the circuit so i recognize that the toy and has not been reversed but perhaps as a matter of being affective anymore it isn't and the reason that is that is not because it was wrongly decided it was the cited based on the briefs that were submitted to the court which totally omitted any reference to brian elizabeth white for the united states really quickly before i begin i apologize i need to make a correction to the government's answering brief yesterday as i was preparing for argument i realized that i actually cited two cases in our answer in brief that i should not have one thousand i cited to united states versus field which is an unpublished decision from the tenth circuit from two thousand and six and on page twenty i cited to this court's unpublished decision and parker from two thousand and six neither of those should have been cited because they were unpublished decisions prior to two thousand and seven that is actually the second time in three days i've had to make such a concession about the government's answering brief and i will institute new editing procedures that happened while the case with on appeal at the time that the jury instructions were filed in this case the jury instruction for one thousand and one followed to toy in which was ninth circuit which was which was and technically still  the ninth circuit law in one thousand and one but that's really not the issue the issue is whether a competent defense lawyer would recognize that he or to preserve this issue for appeal even if he could convince the district judge that issue i think that what a bottom that's what we're talking about the question is is it constitutionally deficient performance for a defense attorney to rely on the ninth circuit model jury instructions well is it conscious is constitutionally deficient performance for somebody for example not to challenge plessy versus ferguson and when to schools are segregated in kansas there may be a case on point but there's a very good argument to be made that it ought to be re considered and the defense counsel did nothing to to preserve that argument for appeal and i would i would submit that that is the difference between the very the the the minimal threshold standard of competent coun best practices that declarations that the defense filed with their twenty two fifty five talk about best practice practices and i will say those those declarations one was from the attorney in a joke to a joke who involved eighteen u s c ten thirty five for which there was no ninth circuit law and there was no ninth circuit model jury instruction so that the defense bernie researched and discovered this problem with thousand and one and came up with an argument to be made but but i think that the question is well while best practices yes if every defense attorney had the time and the resource and the ability to do research every one of these jury instructions and keep in mind the district court judge here gave eighteen jury instructions now the time that it takes to make sure that  instructions the judge is going to give are consistent with the model jury instructions as maybe one minute the time to to check that the model jury instructions are consistent with ninth circuit law takes a little bit longer and if the if the judge here i mean i'm sorry if the defense counsel here had taken the time to look at this jury instruction what the first thing he would have found is that it's consistent with ninth circuit law then the question is how far as a minimal threshold standard of competent assistance is a defense attorney obligated to go to research to figure out if there's any way to poke holes in current ninth circuit law and what the what the court said in strickland and what the court said in the supreme court in harrington is we're not supposed to engage in twenty twenty hindsight here so while they say that the that the defense attorney was ineffective was constitutionally deficient for failing to challenge instructions eleven and twelve you know really that he didn't challenge issues why what possible benefit is there to the defendant from not preserving an objection to this instruction i'm i'm having difficulty seeing what the what the game is from not making an objection  a defense attorney to determine whether there is a you know whether there's a hook to challenge a jury instruction right that requires time that requires research on whether it's competent representation what i just think that if you're going to say that it is as a minimal threshold constitutional competence every defense attorney has to research every model there's no there's no that's not not what anybody you say so the question is given what had gone on with respect to this instruction at the time forget what happens afterwards would a competent lawyer have said you know there's a good argument you made here i might not win it but i want to make it i mean really the question right i don't know whether he should research every instruction no research presumably is needed with respect to the instruction that says you should be the gills must be proved beyond a reasonable doubt this is the we're focusing on one instruction why use it why was it not excuse me why should we have challenged the two responses that i would give so that one is the reason that we're focusing on this one is because with twenty twenty hindsight we see that this is the one that there might have known i don't want to do twenty twenty hindsight i want to focus on what a reasonably competent lawyer should have known at the time not what we know today somebody doesn't challenge you today i have a very easy time finding yes yes let's what was right what would a lawyer have no one at the time and why law the testimony at trial was that they told her it was imperative for her to tell the truth there was because this wasn't an issue at the trial because the jury instructions that had been proposed and not objected to were the current ninth circuit instructions  there was no testimony about that and and that simply wasn't that issue was not explored at trial because it was not at issue at trial i don't know so so based on the record that we have you know the  one of the agents testified that they told her the quote was that it was imperative for her to tell the for her to answer their questions truthfully like the answer to my question is no only that we don't know i mean there is nothing in the record that they would that went further than that there was no follow up questions after that testimony because as i say that question was not at issue in this case i do want to just say very quickly that defense counsel it cites to the a b a professional standards and those standards say that in representing a client a defense counsel may engage in good faith challenge of applicable law if done so openly now i believe that that at bottom what the defense is arguing here or what the is arguing here is that that needs to be turned on its head and to say that in representing a client a defense counsel must make a challenge to applicable applicable law whenever there is a good faith basis to do so now that may very well be best did advise a client as to how to plead unless you can know what's going to be admissible at trial what facts are of consequence to the resolution of the proceedings you can't know that without knowing the elements and so i suggest to you that you don't have to the a b a standards i agree with her if they're nice ok but they don't establish a stand there they say what you can do one case you got in trouble for doing it but  but with regard to the elements of an offense that is the starting point you cannot prepare even for a guilty plea but i want to go back to the question i asked you before yeah talk that's what you're telling me the case you have to in a twenty to fifty five you not only have to demonstrate that somebody fell below the standard of care you have to demonstrate prejudice and the only right and the only prejudice you could have in this case is if this instruction was erroneous correct the prejudice that flows from that right it has to be an erroneous instruction yes because of you and therefore what you're saying to us is we should say that it was an erroneous instruction to toy and it's not the law if this panel if this panel and i don't know the answer so i'm going to just say that but if this panel has the ability to go back we don't we although we could say that because it's it's decided by a panel of this court so what you're really telling us is that you want to file a petition for hearing it back on to toy that's just what i was looking for that's that's the box i can see that's the problem we have i don't know that that is necessary i don't know that this panel cannot analyze to try and recognise that brian wasn't called to the attention of the panel and if it wasn't called to the attention  be that as it may look there is for there's no question there's prejudice while there's only prejudice if the instruction was incorrect that instruction caused a forfeiture of a complete the fence like what only if it only cost mean the next case on the calendar is the united states of america versus dominique w