assisting us with our caseload he has been here for three days this week and we are very grateful he's here from the northern district of illinois and we're just very grateful for all of your systems this week and including today  t thank you it's a it was a privilege to be invited to sit on the th circuit in a particular pleasure to be able to sit on the same panel as judges schooled in so i think  this is the only case the case of united states of america versus damien slow or slue slip is the only case on the docket today so it's a turn he's already come forward and we can less i'm going to start with the lesser included offenses i do want to are you the sergeant turner linguist issue and i hope to get to the pinkerton error with respect to the insufficient mens rea and why should not apply to counts three to five regarding the lesser included offenses it's a very the standard is it's undisputed set forth by this court of art if there is some evidence to support the jury instruction it is the jury's province to determine which evidence has to believe most accurately reflect the events surrounding and that case it was the stabbing he would be the shooting and already explained at the end of its opinion why this is that when there is a dead body  might be loath to choose between a wall and the murderer acquittal and as we know whenever there is a passing of human life there's an incredibly broad spectrum of how that came to be whether it's natural causes or negligent death accidental death gross negligent reckless all the way to homicide there's defenses like self defense and is improper defense that lead to land slaughter and that's what we want to talk about here so want to focus on voluntary manslaughter and the district judge made an express finding in the original run up at the rule thirty conference judge excuse me can solace rogers said because slew in his testimony denied pulling the trigger he was not entitled to an instruction which of course that be clearer as a matter of law that the definition abused discretion because whether he testified to that or not or whether he shot him or not would not be legally dispositive as to his ability to get the instruction ultimately she says and her finding on the record is there are absolutely no facts records no facts to support the instruction which is why she withheld it and we disagree and i want to identify the facts by which a rational juror could have found that this was voluntary manslaughter and in fact this case jumps  manslaughter case as a as a drug deal gone bad not a premeditated attack and the facts would be one as the government admits the shooting happened in response by being punished by muzak on page six of the answering brief the government candidly tells us the testimony from its star cooperate or boyd was as follows and i quote they had an argument over the quality music had tried to hit him in the mouth and stewardship pulled out a gun and shot music in the had then taken the money in the marijuana and pushed music out of the car even the government's harsher spin supports what boyd actually said that st muzak the victim attempted to hit him there was an auto cation then again mister slew he did punch him in a math and that's when the shooting occurred nd we know it's a small confined space rd we know from boy that muzak is extraordinarily strong he's a man so strong he can carry a couch by himself we know he shot in the arm and we know that from the five k letter that the description that boyd gave of being shot in the arm was accurate and truthful according to united states of america and supported three year sen we know that slue did not believe it was fatal because he said he should be all right and judgment especially credited that testimony he stated he had no intent to kill this is for the record  record but i will make that error again i apologize for our judgment rogers credited that that finding and it's just on the record that's boyd's testimony so we have that testimony establishes rachleff and not intentional which supports is if if the appellant pulled out a gun and shot the did the guy dealing the drugs why would that be manslaughter as opposed congress or a narrow mantic situation that inspires ire we say if you over react either by killing the param or or your spouse or partner that's not murder it's manslaughter and it's almost medieval this is a sudden quarrel case which is different than heat of passion but i'll ask your question that context and you say why wouldn't it be nd degree murder or something else and that's a great question the answer is i don't know that's why you get the jury instructions because it's a fact finding a what's the mens r so for voluntary manslaughter in this case if you're in a tie conspiring to find case and you get attacked and you overreact if you all react recklessly with extreme indifference that would support a finding of manslaughter because you didn't intend to kill him but you  reckless with extreme regard for human life and there was that death involved if you were brandishing the gun and waving it it was accidental that would support involuntary manslaughter nd murder also as intent to kill you have to want to kill him so it depends what the jury found or what you were the jury the district judge would be required to do is instruct on each of them and let the jury make that finding which is what aren't and anderson and crows say and i really want to recommend to this court of the united states versus crow opinion it's by judge paez at all the opinions and that was cited by the government st their answer in brief that of all the opinions and this is definitely a detailed complex area of law it does the best job i have seen of laying out the different levels of culpability of homicide and the facts that would will would not support such a finding the last thing i want to say on this before i pivot as mike as my clock rolls is actually answer all questions honor is i think the government assisted the district court to its error because they told judge gonzales rogers that the defense cannot argue in the alternative and she agreed and she barred them so the government could say the shooting was intentional even though boy didn't say that he didn't say one way or the other whether he intentionally shot him or accidentally shot him we know he thought it wasn't fatal the governor was permitted to argue intentional shooting but she barred the defense from even argue accidental acted in self defense but if not it was manslaughter so defendants are allowed to argue the alternative in by the government by telling the judge gonzales rogers and her adopting that incorrect formulation prejudice the defense  objection he was submitted by the defense counsel defense counsel yes when they submitted so he was martyred by the government that's true but at the critical point in time when he starts translating for he should've been allowed to testify to pat's watch translation objections and if it's going to be a standing objection after the record shows that that has been repeated then you look at that in this case there was one of jackson early on regarding one aspect of the testimony earth you know where mr turner was translating and the defense counsel stood up and said all this has gone beyond the scope he's offering opinion and then there was a question about laying foundation i think it was at that point you and then never was no other objection and despite the fact that from time to time the translation that was being given by mr turner was and this is unique because a jamaican patwa there was english that was discernible arguably and then there was a language that was not discernible that that mr turner was to assist and one example of that was when  the seriousness in the letters and don't write letters and he the transcript from what mister lew said is you can't write anything too serious in the letters and then the question was when with mr turner was asked to interpret did you have an understanding of what that means what that meant and he answered from what it sounded like to me was he was hoping that she would write him some letters in jail but just explaining to her don't write anything too serious in the letters because the jail guards they read them and they read the letters now that was arguably not a direct translation of what was said there was no objection made by the defense counsel and yet you're saying that the district court here should have been making some sort of realization here and doing something without this is how the testimony was coming in and i agree that they have our sponsor and then you get to this point and then there was no objection so i guess i'd like to hear what i'll take it in three parts one i understand objections they also followed the circuits rules and the circuit said freeman and i can give you twenty cases if you like district courts must be ver vigilant gatekeepers on next on expects protest money it's a height moment of trial they have special powers they get instructions to jurors they can give opinion testimony it's a critical point in time too he made the right objection at the right time english to english interpretation is improper there was one answer that there was one response that from a district judge that would have improper so sustained councilor she didn't say that she said lay foundation and of the united states of america can come up here and tell me the proper foundation that was later could have been laid to admit sergeant turner to give english to english interpretations i will listen to that proper foundation but i was no other objection as writer that he made a perfect objection it was not sustained and it was the basis of blame or foundation is nonsensical in the legal world what foundation could they have laid off that you didn't there was no objection at the time when this the the word robbery came out do you agree with that i agree with that but my so it is to if there was no objection at that time plainly erroneous ok and so we're looking at this under plain error i think it's abuse discretion because when judge gonzales watches didn't sustain the st objection and suggested that additional foundation could permit this testimony she was clearly wrong as a matter of law there was no foundational planet earth that permitted this line of questioning but there wasn't a follow up o was turner saying that they were talking about a robbery that's not an english to english problem that's a put twat english problem so even if it had been a standing objection on english to english it wouldn't carry forward into the robbery conjuring  prejudicial there is no robbery except for the sergeant turner boy doesn't give him a robbery he didn't plan a robbery he didn't participate in robbery she doesn't give him a robbery there is no robbery except one conjured bias a detective saying he's pulling it from his ideas because his it's meaningful though why not because whether or not he tried to take apart that testimony doesn't answer the question of whether was probably presented to the jury in the st place that error had been made and of that error was prejudicial and affected the fact finding process supports reversal and if that ever was either not ever or was not prejudicial then our claim will be sustained but whether or not the defense attorney took additional action later on to ameliorate a potential problem or sought or understood how to deal with it does not during the yes there was a direct examination cross examination of damien so that you and so does the church jury not can't assess the credibility of your client at that point of course all right and doesn't that back because if we are looking under pla  the governor has a star witness named boyd he's cooperating he his buddy who he brings the he brings to the whole deal right he is the connection of the buyer he's connection the seller his connection to the watchman driver hugh which is odd that we never find q in my experience the government can they had a cell phone they had his car they have a cooperative says he hangs on a corner how do we not know his real name at this time with the united states being his supporter i don't understand it but that aside  they none of none of them say it's a robbery it's a drug deal gone bad they're not planning to rob peter muzak they're planning to make a deal with him in a car for thirty thousand dollars worth of marijuana i will except a jury throws away that's what sluices on the phone it just went bad it's a drug deal gone bad it looks like that and all the independent evidence does the only solitary piece of evidence that says robbery is conjured by a police sergeant where and that was known to the jury wasn't the jury didn't know it's not like i'm bringing out an out so now i know i know that just so the jury understood a police detective came in and said i'm an x pert the judge has ordered you to accept my translation i'm an expert and i interpret this conversation as he was doing a robbery and he planned a robbery when that it's conjured the i get the letter i've been going to ask the government to come back with a what kind of foundation would have supported this errant testimony show me where it says robbery and these translating it and we look at his translation right there we have a translation it doesn't say robbery anywhere on the stand live they say something like so what of that other part sound like unspecific a spring loaded witness and he comes up with transcript right oh he said me deuced i can't do that good at sorry that's why and that means we did a robbery now that would have been permissible testimony and you could get a cataract spur you could have said that's not what that means he's misinterpreting we can slow down that tape we can understand why it was missing right now it just went bad because i didn't want to give it fighting back you know it is you know give me back with a bunch serious too serious in the letters because of the jail guards and and then the additional of they read the the letters ok i mean how much interpretation do we allow for the when we know that language especially when they're slang terms and we have a case i think it's virgin garcia that says we give some latitude i guess the way i mean i'm interpreted that way and so this is a very  you know important point here and so i'm just trying to figure out how much of this is just interpretation none of it is none of it took this is he wasn't tempted to interpret it all it's translation and that no more there's no want and give the translation with respect to the concepts and to how that language is spoken and then break it down in the best way possible for the english language i understand this is a little bit different i'm just trying to figure out how much different because you have this unique language issue in that this is jamaican patch which how so has some parts of it are english and then some parts of it goes into some sort of syllable sound dean and words that let me answer and to have a right to what is completely different we know that doesn't apply here because the government approved it they gave us the written translation that provides a translation this is what the jury was entitle to to listen to the tape while reading along that's what they were entitled so they could even get this to go to the jury box with them they had to listen and read along those are the rules of the circuit and the government said in real time so united states district court we have the ability to translate it here is our official translation full stop it's over there is no need to interpret nd and i don't i think the core pi's and so it's really i don't think a very good argument when you the jails tell the have this entire body of law and it says warn others when they're subject to this privacy invasion that we respect and expect people to make so when damian sloot tells his girlfriend what we expect and he's been told to do hey these recorded lines or they read  my letters he's saying what he's supposed to say there is nothing nefarious about it in the least lawyers talk to their clients and it's not attorney client call they say hey i'm going to come visit you i don't want to we don't talk on the phone they're recording our phone ok for the defense attorney not object at that point is that what you're saying no i think it's i think the point that whether there's no basis for interpretation at all of english to english and it's plainly once he objects whether he should object to later or not and we can disagree you win the argument i'm saying all to me doesn't matter because the robbery evidence is interpretation evidence is so far beyond the pale that a vigilant district court judge having been alerted that a police detective is is about to go off the rails and she thinks further and she says when she says for lay further foundation she says something interesting but i don't know what kind of foundation you can lay to get there so she's ultimately sustaining it it's a just recognizes this is bad testimony and she should have stopped it she should have said full stop damali tale of the prosecutors can we approach sidebar judge gonzales roger says no and there was a right answer there which was you can't do this this is not you have the he's allowed to give the interpretation no more no less that's what he was a that was the scope of his expertise that's what was disclosed that was what was proper and all of this interpret what he's saying is incorrect but i was i that's felony murder and that's not right as a matter of law drug dealing is not inherently violent felony so it doesn't qualify felony murder if they believe drug deal gone wrong and even if they wanted to believe robbery under pinkerton putting aside that it wasn't part an object to the conspiracy so it wasn't pled that way you would still need to instruct the jury that the defendant had a specific mens rea of the inherently dangerous felony which supports felony murder so they would have to make a finding that he intended to rob him and he died in the course the robbery and none of that was done so here on this record it is clear that they mean slew may be doing a life in prison because there was a drug deal and music died and there was no finding  sulu a lot of extra time i think we don't have any other cases here this morning and this is a really interesting case and presents will a lot of difficult i think question claims presented today those are meritless i'd like to start off by talking about why the district court was correct and did not abuse this discretion in declining to give the manslaughter instructions to begin with i think that the record shows that slew the defense waived their claim to voluntary manslaughter and now a defense counsel just came up and said we're withdrawing our claim on heat of passion but if you look at the record on excerpts of record of forty dollars not only did defense counsel withdraw that at trial but he also withdrew the imperfecta defense theory he said granted that does not seem to be case either for the heat of passion aspect on the top or the honest but unreasonable belief at the bottom part so he has withdrawn very specifically and waived that claim in district court again that's on excerpts of record forty seven that i think is what about the sudden what the defense counsel at trial did was to say essentially ok we withdraw after listening to all the evidence both the voluntary manslaughter but we are seeking involuntary manslaughter so we're not saying or contending that defense counsel waived the excuse me the involuntary manslaughter request but there was no basis no evidentiary basis for giving this instruction and the district court in involuntary may involuntary  voluntary i'm just saying that on the voluntary there was no evidentiary basis and defense counsel actually agreed and waived it so i think the focus should really be on the involuntary manslaughter instruction which they did request and the either i suppose if there was a sudden quarrel and it overcame the defendant's ability to really kind of control himself that would i think amount to heat of passion if it was reasonable for a reasonable person if the sudd quarrel caused him to think that he needed to kill the defendant in the victim excuse me in order to preserve his own livelihood and prevent you know serious bodily injury that would go to the imperfect self defense so the idea that there was a sudden  think could go to either either way of making the voluntary manslaughter argument both of which or waived and i think that there is there is no evidence for a basis for any of the manslaughter instructions  as defense counsel got up and said really the only bases are two and they're both stem from boyd's testimony the st one is boy's testimony that what sluice said in confessing to killing who was that music had st tried to or actually had hit him in the mouth and nd the next day when boyd said that he believed that's who was actually trying to threaten him by saying you're lucky i didn't shoot him here in the forehead or shoot him here in the chest he should be all right but that meant that sleuth thought that he hadn't actually kill muzak now those two pieces of evidence are not enough for a rational jury to find that there was gross negligence or on the involuntary manslaughter side of things involuntary manslaughter is a low mens rea it's a situation where there is no malice there was an accident there is no intent to kill and it has to be reasonable for a person to think that they are employing that would be non deadly but somehow negligently caused a death and in this case what the evidence showed and what boyd's testimony actually was the full context of it was that slew said that he pointed the gun while muzak had his arm reins and said no wait so while he while muzak that is was pleading for his life he took a gun and the pathology reports show this and put th gun towards the man's torso while the two were sitting side by side in the front seat of a car front of a car put that gun towards the torso and shot it within an inch of the person's arm where the person moves that was holding his arm to protect his torso this is not a situation where you have evidence that he is shooting at some person's extremity where it was maybe unrelated to his torso we're talking about close confines close quarters of a car deadly that's lethal deadly force and no reasonable person would think that that might not kill somebody or are or have a high likelihood of doing so so for those reasons the district court did not abused his discretion in finding there was no evidence of gross negligence and mr as is asking us to look at the crow opinion in our decision and matthew is there anything in there that you want to highlight that would support what you're saying i do i i do want to say that in the crow decision the court said very clearly that the involuntary manslaughter instruction was consistent with the evidence that is the evidence would allow for that in the current opinion and the crow case you had a woman who had swung a knife during an altercation with her romantic partner and then the person ran off and then came back and it turned out that he she had actually dealt a lethal blow her defense at trial was self defense but she didn't say in her testimony that she had intended to kill him she said that she had intentionally struck the blow because she was trying to protect herself not that she intended to kill and so the district court in that case found that the intentional striking of a blow with a knife was not necessarily the intention to kill somebody and that a reasonable person could find that that would be consistent with both self defense the intentional striking of the blow and also involuntary manslaughter where there was the use of non deadly force or what you believe to be non deadly force that accidentally caused the death that i think is consistent with the government's position here which is you have to look at what the evidence supports and that the district court gets to evaluate whether that evidence supports the instruction and that a rational injury could make  such a finding in this case we have a very different situation we don't have a situation where somebody is you know a pregnant woman is trying to fight off her husband and takes a knife to kind of you know prevent more harm what we have is a drug deal we have a situation where there are two people in a car and the person potentially maybe is trying to fight off and then say you know maybe maybe there's a quarrel over the quality of the marijuana and then the perpetrator the killer takes out a gun and point blank within in of the defend a of the victim's arm shoots him causing the burning and the blackening and the hardening of the gun  as it goes from the arm through the armpit through the law through the you know aorta and lodges within the body of the victim this is not a situation of gross negligence and the district court did not abuse destruction in trial showed very conclusively that that was it was not can it was not consistent with the pathologist report because the idea was that he had taken it out and using his left arm had shot basically at the waist level instead of up towards the arm but even if you were to say that it was slim who had done the shooting we're still talking about taking a gun in close close quarters and shooting somebody at their body this isn't sort of in some open space where you have a hunting you know party and then maybe a gun goes off or somebody about quantity and never try to hit him or do anything like that and suddenly slim took out the gun and shot him so there is no version in slews version there is no no recounting excuse me slim's trial testimony that is does not include any account of muzak trying to hit slim slews account to boyd which was requoted in boy's trial testimony includes some reference to potentially music trying to hit him but again this is also a person the testimony was that muzak was a five foot nine hundred and sixty dollars pound person sitting in the car even if he had hit him the testimony was that before the shooting he had basically raised up his arms and said you know please no don't like stop let's not do this he had basically raised any white flag to the extent that there was a quarrel and so the idea that somehow that would be adequate provocation for voluntary manslaughter or that the shooting itself was accidental or negligent there's no basis for that and the idea that somehow because there was a gun it might have just been brandished and it went off accidentally that's based purely on speculation there's no actual evidence to support that slew never said whether at trial or to boyd oh i took out a gun to threaten muzak and accidentally it went off so this is all kind of constructed occurring with your colleague across the i guess i have a couple questions and for you regarding this and did you need to charge robbery what was your evidence of robbery what was the government's evidence of robbery and the basis for the indictment well the evidence for the robbery was that you had a slew basically setting up a situation where he was the only person in a car with muzak who came with the marijuana that he then part of the translation indicates and you don't even need the entire mission but the translation indicates that he says well you know people feel brave and they try to sort of fight indicating that he was trying to maybe take take that marijuana without paying for it that the marijuana after the shooting mr slue took off with four bags of marijuana and all of the cash he didn't try to give back the marijuana and he didn't try to pay the cash he took that and then he went and proceeded as though everything was fine he didn't really say anything about the accident initially so it was circumstantial the basis for the robbery you're evidence while i think that there is no direct evidence in the sense that he didn't say i'm going to plan to rob him but yes and afterwards the pictures on his phone that indicated that he was for a flashing and showing the marijuana and that he was profiting from this and that he wanted the marijuana and that he drove the whole deal so it is circumstantial in that respect your honor but it was i think strong circumstantial evidence he took the marijuana which was eleven thousand dollars worth of marijuana he kept the cash and he was selling it and acting like everything was ok until sort of forced to so why isn't it in significant that the translator was the i think the only reference to the word robbery came from the translator and it wasn't apparently a direct english translation well i think that st i want to start off by saying that i think that there was a waiver in this case again and that's partly because as the court knows the defense counsel had a very specific strategy he said and this is on excerpts supp a supplemental excerpts of record for forty four dollars if there are any material differences in the interpretation or in the testimony of turner quote i can ask mr slow about what he meant in english what was stated in the dialect and in fact he implemented the strategy because during the direct examination of mr slow he asked him you know when you said i did it were you confessing and he mr sulu said no i was just saying that i was the one who had been accused of things and then he specifically talked about this robbery language at that that's that supplemental excerpts of record six hundred and twenty six and he said he was not describing a robbery incident but quote the verbal aspect of what happened in the car between muzak and slim so this i think constitutes a waiver or the the defense counsel made an objection on the english to english translation and then no and then sort of sat back and said i don't i know i can make objections but i'm not going to make objections because i have a specific strategy and that strategy will be to clear anything up through slews testimony he did that so i think that's waiver let's assume it's not waiver assuming it's not waiver it's not clean air and it's not plain error because as said well but the but the other side is arguing that it's a piece of discretion because of the one objection that was made earlier regarding the fire  something the burning papers the burning papers right well i think that's just wrong because we don't have he didn't make it as a running objection and it was not to specific pieces of evidence that was to a different piece of evidence and i think it goes to the waiver argument because defense counsel knew that he could make objections and chose not to but in all every defense counsel knows that he or she can make objections but specifically on this ground with this test i was and i think it's a different ground english to english objection is different from conjuring a robbery objection well i think is that i think i think that is right i mean there's a completely different conceptual way they are different conceptually but it's all the basis of his was where is the foundation for because that's the english the english right what the judge said is you can do english english if you lay a foundation there was nothing about importing the robbery concept and the translation of the interpretation  point so at the very most then though i think what we have here is that if there are distinct objections we have an issue of plain error he didn't make the objection and there is no plain error here because we are talking about translation interpretation and pet taught is a little bit different we're not talking about let's say japanese to english is kind of this dialect or what the translator called broken english where you have english and the path while kind of filtering in and out of each other especially the way mr  slew was implement employing it in the conversation and so you do have this kind of in and out and part of this is to understand what mr turner's translation was and to understand the methodology behind it which this court has said is very important when you have expert testimony it made sense to present to the jury what he thought he was listening to and how he interpreted that and whether he thought they were talking about a robbery he didn't say that the word is robbery or that he admitted to a robbery his exact testimony was it sounded to me like they he was talking about where he was involved in a robbery and what that that was the basis for that testimony it certainly wasn't his knowledge of patois well i think  that there wasn't very much more than just sort of the language which is that the language which is on excerpts of record for ninety eight dollars in which the court read earlier which is that he says well it went bad didn't want to give it fighting back you know how it is you know give me that people feel brave you feel you really are going to you see what i'm saying it was like really one of them type situations did he do one of your moves and get it is what the girlfriend says and he says people are not smart like me and they don't move like me so it is kind of based on that language and the jury i think it was important for that's not a translation you know saying what what he was really saying that at that point was he committed a robbery i think what mr turner was saying was this is what it sounds to me like what they were talking about right which stands for that's not that's not a translation no i think it's methodology i think it's methodology testimony i think it goes into this is what i heard or what i thought they were talking about why did he target and why did he need well i don't even i don't even understand how you get from point a to point c here ok what what does the fact that they were talking about a robbery how does that bear on translating the words from pat's white english well i think that words i mean if you put words into a google translate without any context you might get something that's jibberish i mean we know that language translation is a little bit of an art it's not an exact science so if you think that you are listening to people talking about a robbery you might translate in a certain way if you think you're talking about people talking about getting ready for a party you would might translate and use different words to translate that and it was important to the jury or certainly not harmful to let the jury know what he thought he was listening to and that might you know bleed into his bias and whether the jury should be transiting his translation how it translation have changed if at all had turner not imposed the robbery overlay on it i don't know specifically back can't for the life of me i can't figure out how the translation would have changed if turner didn't think that there was a robbery going on so what is it about this translation that required the methodology of superimposing a robbery construct and what they were talking about well your honor i'm not saying that it's required but i'm saying that it was not objected to evidence and it wasn't particularly plainly in the air or wasn't very plain because we know that we're allowed to have methodology evidence before the jury and so it isn't something where you know the district court should have let you know up from her seat and said this is clearly wrong because it's in the vein of methodology it's saying this is what i thought i was hearing this is how i translated it and we didn't get into it any deeper than that so the argument is that there is no clean air but even if this court were to find that there were some plain air this did not affect the defense substantial rights because you have so the testimony is not actually very controversial you do have the his interpretation of them talking about a robbery but you also have the eggs the words themselves the jury looking at these words about the person feeling brave that you don't think you're going to you see what i'm saying and then you have a one thousand pages of other testimony and hundreds of other exhibits showing that for through text messages that you have slew orchestrating these this drug deal you have cast reports showing the locations making it impossible that slew was correct when he said that slim and he were driving in the car together you have photographs of him gloating after the the death of muzak over the the drugs and you find the murder weapon likely murder weapon in his house you find but none of that comes to that none of that goes to the intent element of robbery what's the best evidence that you can point to that goes to that intent element of robbery that you intended to rob yes well as opposed to a drug deal gone bad as opposed to a drug deal gone bad or as opposed to this just happening during a drug deal i guess i mean even if it's not a drug deal gone bad i mean that this was a robbery well he you have music saying don't kill me essentially no wait then him killing him pushing him out the car and then taking the drugs and then parceling them out as though nothing really bad happened until there was some concern on boyd's part about whether it was that why music wasn't responding to him and then finally saying ok well it went bad and i killed him so are you saying that after the shooting slew should have stuck around incomplete at the transaction and you know made sure that whoever supposed to have the money has the money whoever supposed to have the marijuana has marijuana or do you think it's more likely that when somebody gets shot during a drug deal everybody scraps and doesn't really think about allocating the fruit the monetary or the drug fruits of the transaction i'm saying that he shouldn't have sought the victim at all and that part of the reason he shot him and i think the evidence bears this out is that he wanted to get the drugs from him without giving over the money and worse as counsel it's a little bit like inject a question if if did they did they use a mixture of english and pet and that discussion yes there was a mixture of english and pat and if you look at for example excerpts of record for ninety eight dollars which is the i think the keep the discussion that we've been talking about the translation shows on one sort of call and all the english the other side would have the patch  which is sometimes in current intermingled with english so you might have a sentence that's half in english in half and so is there any evidence in the record about how often in immigrant communities people mix together their native tongue and then in english when they're speaking i don't believe there was any evidence other than what mr turner said from his own experience that sometimes his own mother would strategically choose to insert or say certain things and patwa in public  my final question and this can be answered briefly probably is this assuming that the issue here on this testimony is an issue  would impair the fairness integrity or repeat titian of the court absolutely your honor there are all four elements and those are not met here in part for example because nobody really mentioned turner in the closing argument if you go through and look at the closing arguments the government's closing argument never mentioned turner's but the government's raising argument did mention what slue told only at the jail well and i want to i want to clarify this which is there was no objection and there continues not to be an objection to the actual transcript which was admitted in trial this is not a situation where you sometimes have a transcript that's just an aid or translation that's just an aid for the recording in this case both that exhibit the recording itself as well as the translation were admitted as jury exhibits they were both given to the jury the jury was allowed to take this transcript back and read it it wasn't it wasn't sort of like here all you have to rely on is turn right so right place right live on slews oh they relied on slews own words and they also relied on all the other evidence here that supported that he had committed the murder and ultimately i think which goes to sort of the th especially discretionary aspect of the plain error standard this court should have no concerns that the integrity or their fear the proceedings were impaired even if there had been an error here we have a mountain of evidence this is  relative sort of guilt ultimately the question was is is boyd's testimony which is corroborated by the cell cast of the cell site records that all this evidence is that right or a slews but there is a lot of participating in a drug transaction of even killing the victim here the bain question is whether there's a lot of evidence or at least enough evidence under our standard of review a plain error to support that it was during or in the course of a robbery and i take it that you charged robbery for a particular reason i guess to get to the murder charge is that right to be able to show felony murder or to be able to show what because why charge robbery when you have a killing that occurred during the course of this drug trafficking well i i would say st of all that you don't have to do that to get to them murder you have the murder serve independently and you also have the drug conspiracy then why did you do that the robbery why the robbery because i think a robbery i did why didn't the charging decision but i believe that the evidence supports that there was a robbery which was that you have somebody who is setting up and the text messages show this he's driving the entire drug transaction he's asking for them to meet he's driving when they meet where they meet how music is going to come up walk up not just right up with the drugs and then you have this two persons or drug transaction where then he then shoots the holder of the marijuana takes off with the marijuana takes off the money and then has all these pictures on his phone so of showcasing all the money showcasing the drugs showcasing himself in the car hours after the murder and so we believe that i think the evidence shows that and i suspect that is why we charge that way so you could have conspiracy to distribute marijuana that it was forseeable to him and part of the course is that somebody would bring a gun and there's certainly a lot of precedent in this court to show that when you have large amounts of money and large drug deals that that can be forseeable that somebody would bring and that would go off and hurt somebody or kill somebody that's one route for the twenty four day twenty four to twenty four day i do want to just go quickly go back and say that even on the sort of instructional issue that if this court ever goes to the harmlessness issue the fact that the jury found st degree murder in this case i think is dispositive for why it was any error would be harmless they have the choice of finding nd degree murder finding a lesser they found premeditation which is inconsistent with any manslaughter instruction and in this case i think if you review the evidence as i did in preparation for this trial you'll find that there was a mountain of evidence in finding in favor of the guilt and that under the properly instructed pinkerton instructions and all of that the evidence that the jury's verdict should be short points one the government's incorrect sudden quarrel and heat of passion are different offenses period just do some historical research they're not even close to the same offense the standard and i disagree with their citation electo which does not apply here it is sudden quarrel and so for voluntary manslaughter that's intentional killing without malice or a reckless act that is done with extreme regard to human life that is likely to result  that's a voluntary manslaughter and an involuntary is when you do a lawful act in an unlawful matter typical unreasonable self defense you really over react to what you're confronted with but it's accidental related to that point i disagree with m with my colleague boyd's testimony which we we accept we have to in this posture and the government has sworn in the to the to give them three years that it was truthful doesn't say there's a robbery and he describes events so everything in th as we presented stands on boyd's testimony we have to accept that we must we indulge it we have to but so does the government and i say no robbery and he doesn't say it's an intentional shooting or an accidental shooting and that's when they day it's are you circumstantial evidence to suit their needs why can't mr slow it's as likely it was accidental as it was intentional and when there's no evidence either way both sides can argue the facts tight quarters quick confrontation he said he should be all right the government's a big deal about somehow shooting in a torso your four hundred and eighty one shows the loon he shot him in the shoulder and i'm not saying that's a good idea it's more than frowned upon a missed music passed that's a horrible thing but it wasn't murder and it fits within the manslaughter rubric if he was trying to kill him it was an intentional killing he shoots him in the head or the chest as even he recognized last the government sort of notes in close they say st degree murder settles it no they almost give it away then they say it's because of pinkerton so b and then method they get to st degree murder if the jury found he was in a drug deal and i think there was substantial evidence to support that and that muzak died and there's undeniable evidence to support that that that it was reason for siebel he's guilty of st we murder without any finding of any criminal mens rea other than to deal drugs that is an unlawful finding that is in sufficient as a matter of law you can't be a murderer because you did a drug deal that left the body it's not inherently fair it's not only inherently inherently dangerous homicide so i'll leave you with the points that i think are most important turner changes case it's obvious how we change it and change it by making up words that don't appear anywhere he translated this transcript or that a problem but he went beyond that in a way that has no justification and the notion that slew is the driver of this deal is can't be sustained boyd brought the buyer he brought the seller he brought the muscle cue he brought the ride he set it up it went south and it's a terrible tragedy that mr music's not with us but it's also a miscarriage of justice that the notion that slew was convicted of murder without the jury's ability to one not be infected by improper testimony and to continue the full spectrum of options aren't close it's this court not close its opinion with a great discussion of why lesser included clue instructions are so important to ensure that juries get it right because all the parties and we're all guilty of it those fact finders or jurors the district judge has to make sure they have all the options to make sure they get the right outcome they didn't in this case because they didn't have the ability thank you for your patience and your gracious sean thank you both very much they were excellent  arguments here today were pretty shaky your preparation thank you will be in what will be adjourned for we're done for the week today thank you very much for that the case i'm sorry the case of united states versus l