time that i have this morning i wanted to start with the argument related to the court record supplemental instructions that were given  specifically i think it's important for the court to recognize the context in which these instructions were given had gone to trial and on the second day the jury began communicating that the were struggling that they were confused that they were having problems that was the exact words that were given back on january twenty eighth two thousand and sixteen and there were no this followed with a nother note the next day in which they saw a clarification concerning the acts mister and that began a debate in which the core in our view gave an unbalanced and misleading instruction and the government turn sought to argue a accomplice liability theory for the first time in the trial and before the trial we had emphasized that the court should make it very clear to the jury what the government's theory was and that mr gross esky was the alleged shooter in two homicides their confusion peaked on january twenty ninth with a second no where the jury asked is it possible to be found guilty of murder while engaged in a drug crime without pulling the trigger this was a particularly important note we emphasize that the answer to that question was a clear no in the context that your your client was was the shooter that is correct and i believe that the jury's notes reflected their struggle and their confusion and the side clarity and  seems fairly evident that what they were doing was questioning the one of the he's one of the corporation witnesses as to whether or not that witness might have been the shooter rather than your client those are all possibilities we don't know but i think what's clear here is the jury is struggling and they're confused about valuating the evidence in the case and under rosa mando what was required by the district court was to provide a clear instruction as to what the government's theory actually was with respect to my client and it's a live the statute under which t defendant was indicted and tried included aiding and abetting as part of the offense did it not that's correct your honor or your complaint is that all the evidence presented at trial was that the defendant was the actual shooter and not a major and a better that's correct all throughout the pretrial litigation the government's position whether it's true or it's the government's position you took don't confuse the evidence for the government's position the evidence the government's position was as you say the evidence indicated that the man was shot and the three people were engaged in a conspiracy to to do that and that two of them were there at the time of the shooting  and they had followed in separate cars so let's assume that the jury believed that the other guy who was in the other car was ill and it was the shooter who test the guy who testified and not your client or at least had some doubt about it but accepted the fact that there was a murder and both of them were there and he was killed and both of them participated in one way either either as the shooter or the they were in a better why wouldn't that be consistent with the outcome of the verdict and also consistent with the law that was given i think i think they're all different hypotheticals and all different possibilities that that could have been in the jury's mind or we could be articulating this morning right but i think what system with the instructions is what i'm really coming coming to why couldn't the jury follow the instructions and reach the verdict it did after after the supplementals and but considering the instructions as a whole i think here i go back to the point that the jury was struggling dead issued they had written several notes not unusual for jurors to struggle and they they had clearly indicated that they were in disagreement and needed guidance and the district court judge needed to exercise what is required by hand which is a compelling duty to provide clarity that isn't the isn't the bottom line whether he there was sufficient guidance to enable a jury to reach a verdict taking or taking all the instructions into consideration i don't believe that that was provided i think the jury was searching for that it was not provided what respect wasn't it provided in the sense that the government chose to pursue an accomplice liability theory we emphasized the importance of making it very clear that their theory was mr process he's the shooter and you have to evaluate the evidence and consider instructions based upon that particular theory so they didn't give the government what the government want and they didn't in the judge to give you what you wanted the judge let the let the instructions as they stood prevail and exactly and and and but that so then the question is what were the instructions that were given sufficient under the circumstances  complete and they were unbalanced and it invited the jury to engage in speculation and to and you know me and what respect they were unbalanced as given because they simply did not make it clear to the jury what the government's theory was when the jury asked the question with respect to what acts mr gross esky but if it is but a verdict can be based on the instructions and the evidence as it stands and the jury is free to to to find another theory of guilt if they want to i mean you know that they're not bound by the government's arguments and theories of government government's argument is just argument it's what the evidence shows and then apply and then you apply the the the instructions to those facts and that's how the jury you know it's a case that's that's understood your honor however when the government chooses not to advance a particular theory in a case completely as they did here they're not entitled to an instruction in any way on that particular theory even where there is support evidentiary support for that theory so in this case again the government is arguing unequivocally that mr sethi is the shooter they argued that from start to finish in this case and it only only until deliberations midway through deliberations did they  ot and start seeking to advance an accomplice liability theory and as a result the the district court gave an instruction that in many ways was synonymous with the court's original instructions that ended up itself resulted in a jury continuing to struggle and continuing to be confused the government wasn't required was it to abandon aiding and abetting the aiding and abetting instruction i know it agreed to do that and aiding and abetting was excised from the instructions at certain points in the conference but but but still there was a to get a better clanged within that in the in the instruction forward it wasn't complete but apart from that i mean it's a sort of background but the but the government is is still entitle to aiding and abetting instruction isn't it is it not it didn't have to when the government decides that a charge conference to agree to eliminate aiding and abetting language they've essentially abandoned that theory and then again during deliberations midway through deliberations the government decides to now retract that position pivot and they thought they'd made a mistake they didn't take into account the fact that the witnesses might might be believed in certain respects and not in others i don't know that's a question for for the government like i might get there at some point mr security in my correct though that the original charge included the statutory language council's commands induces procures or causes the intentional kill your honor that is correct when mr gore says he was indicted back in two thousand and ten you know the original charge to the jury i'm sorry oh yes that is correct but again the government agreed to eliminate that language no it agreed to eliminate additional language with respect to eighteen and abetting charges that it had requested but the language i just read from the statute was in the charge originally given to the jury yes that is correct your honor thank you counsel you've reserved two minutes for a bottle and you will hear from the government my name is brendon quickly and i'm an assistant united states attorney in the southern district of new york i represent the government on this appeal and i represented the government at trial blow with respect to the supplemental instructions i think judge gomez agreed to commit this murder that they went out and conducted surveillance and that the night of the murder guerrero and the defendant went they followed their intended victim around manhattan and then one of them shot him and without the green who shot him that would all be sufficient to find a defendant guilty of count one there was no evidence other than that mr squeaky did the shooting there wasn't evidence that mr guerrero did it he was in the car allegedly you put on no evidence that anyone but this defendant did the shooting isn't that correct that is correct your honor but again the jury the jury is well within its rights he is free to make up their own view of the evidence so the jury is free to credit some part of the witness's testimony but not all but there was no other there was no other evidence is what i'm suggesting am i wrong about i convict on that basis exactly there was no evidence that mr guerrero who is the only other person in the car did the shooting right that's that's right was defended never took the stand he did not  so where how could they make up a theory that this defendant aided and abetted rather than was the shooter i don't think i think you know they were trouble that that's why they kept sending notes i don't think it's making up a theory your honor i think it he's he's crediting and again we don't know what happened in the jury room everything is speculation but under the law the jury is entitled to credit some parts that witness's testimony  but given mr guerrero's testimony i don't know how they could credit i don't know what part would allow them to assume that this defendant was not the shooter or or with respect to the argument related supplemental the supplemental instructors that were given i wanted to highlight in the brief limited time that i do have the prejudice that i encountered as a result of those instructions we go further i want you to deal with the question asked by judge cote i mean they were told aiding and abetting at the start and this supplemental instruction said i'm going to read something i read before and i commend that to you as well so they did in front of them did they not that's correct they did so go on with respect to the government's decision again to pivot during deliberations and advance this accomplice liability theory i was prejudiced our defense team was prejudiced in the sense that we were unable to go back in time and cross examine witnesses in a manner that would include such a theory or even argue one summation that particular theory you say they pivoted what did they do i mean they didn't present additional evidence to the jury no but they in oral argument and in written argument sought to advance this accomplice liability theory by asking judge always their eyes you can see it was there theoretically your honor in the sense that it was charged in the indictment but it was never practically irrevocable it's in charge in the indictment the jury is as is told that not to put the evidence is what counts not that the lawyers say and they then are charged that aiding and abetting is is a basis for liability understood your honor however when the government adopts a clear cut period and says that my client was the shooter from start to finish that is going to be my focus on summation and that was my entire focus on so much of what you're your defense here was that he wasn't even there right he was not involved in either murder on involved in either murder and on it or in a better other was that was your defense yes the defense was that that was you know the defense would have been the same no it would not your honor the we would have developed and attacked the cooperators assessment and testimony with respect to how mr recess he would have been an accomplice our focus was he was the shooter and we attacked their testimony on the particular acts in which he was accused of being the shooter that was our focus and when the government abandoned the accomplice liability theory that became our focus and when they pivoted and sought to advance a different theory we were unable at that point to focus on other areas in which he could have been  acted thank you thank you thank you