good morning may please the court daniel to be federal defenders of new york on behalf of one solano in gains and brutus this court held that instructing a jury that a testifying defendant's interest in the outcome of his trial creates a motive to lie undermines the constitutional presumption of innocence because it presupposes the defendant's guilt in may tell this court held that in a close case that turns on witness credibility such an instruction rises to the level of plain error those precedents resolve this appeal but lo the district court instructed the jury that any witness with an interest in the outcome and instruction of the government has conceded applied to someone who had quote a motive to testify falsely as gains explains that instruction impermissibly assumed someone i was guilty because it was only true if he was in fact in brutus we were looking at instructions that identified the defendant individually as having a motive having and interest in the outcome here we have a much more generic instruction that says witnesses may have an interest in the outcome and it curd in the context of a thirty pages or so of transcript of the jury instructions why should we take that as having the same impact on a jury's decision making as the much more specific and targeted observations in the instructions in games and brutus for a few reasons judge carney st this was the instruction on witness credibility that apply to all witnesses including as the government has acknowledged someone in addition in this case solano was by far the most obvious example of an interested witness his interest in the outcome was by far the most profound and it was the only one that was established by evidence evidence that the government itself elicited when it asks the law know whether he was motivated by not wanting to go to jail and he agreed that he was furthermore gains denounces and this is at page two hundred and forty six dollars of the decision quote any instruction that tells a jury that a testifying defendant's interest in the outcome creates a motive to testify falsely and if one examines the express holding of the games decision it's dispositive and that's again at two hundred and forty six games denounces and  visors against but it doesn't prohibit this particular instruction so let me turn to the express holding of games your honor we hold that the trial court's jury instructions about a defendant's testimony must not assume that he is guilty this was an instruction about some llanos testimony it was an instruction for assessing the credibility of every witness including so on oh and when the district court did mention someone in particular it gave no additional or distinct instruction for assessing his credibility this was an instruction about his credibility and it assumed his guilt in clear violation of the express holding of gains and to make the point a little more plain if so long ago was innocent as the th amendment requiring that he be presumed then he did not have a motive to lie he had a motive to tell the truth why impact the jury if i could turn to that matter your honor was this was a close case the best evidence that it was a close case is that the jury returned a split for addict acquitting solano on the conspiracy count the only disputed factual question in this case was so lon knowledge and the key evidence on that point was competing witness testimony the government introduced no contemporaneous documentation of the law enforcement officers testimony that's a lotto inc interests in the outcome of the cases they test left with well what is what we're supposed to say that law enforcement officers have an interest in finding people guilty who were very innocent or not i the range i completely agree your honor but and i'm certain that the government would never request such an instruction or consent to one in a case where a defendant did not testify that said  normal to have such an instruction of a defendant i mean given that the police are testifying the defendant would would it be proper for a jury for a court who to instruct that the police may have an interest in the result and therefore there's no presumption of innocence so that the problem of gains wouldn't apply invent situation so you could give it if it were a proper instruction but why isn't a proper instruction it oh i don't think it is your honor and your honor is correct there would be no constitutional impediment to that instruction but as i've said in the majority of cases as this court's aware defendants don't testify and as a result in the majority of cases where law enforcement officers do this instruction isn't given and as i say i am certain that the government would fight tooth and nail the giving of this instruction with application to testifying law enforcement officers maybe you could turn to harmless error if i were to agree with you there were multiple law enforcement officers who pointed to g p s tracking information about points but as we lay out in our reply brief all reduced to credibility conflicts and i'll put it this way the principle disputed question in this case the only disputed question in this case was knowledge the principal evidence as it's made clear through the government's own jury arguments was the law enforcement officers testimony that's a lot o admitted knowledge so out of took the stand and denied making that admission there was no recording of this interview solano was not asked to execute a written confession the law enforcement officer who took notes of the interview did not record this admission in his notes this is as pure a credibility conflict as there can be and as this court said and may tell when a case close and we know that this one was and the case boils down to witness credibility against error satisfies the rd prong let me also take one step back and say this mr salado was a forty six year old united states citizen with no criminal record he'd been a commercial truck driver for twenty years in this case just as he had done thousands of times before in his professional life he picked up a sealed container at a marine terminal and drove it sealed to a warehouse in the bronx he was paid six hundred dollars the going rate for this action there was no direct evidence of knowledge and no evidence other than the law enforcement officers undocumented testimony of his admission that he in fact possessed the necessary culpable knowledge to put us to sink play as i can this was a credibility case and the erroneous instruction went to witness credibility thank you very much we'll hear from the government states ruling that appellant's counsel wants this court to make these is not the law at present much less is it the clear and obvious law is this court would have to find in order to hold that there was plane air here mr habib's arguing that when the court in games said the district court couldn't tell the jury that testifying defendants had a motive to lie the court was really making a broader fool he says it was also ruling out any statement that included testifying defen could consider when the says interest in the case so so invalid and credibility of witnesses you should take into account that the witness who testified may benefit in some way in the outcome such an interest in the outcome creates a motive on part of the witness to testify falsely may sway the witness to testify in a way that advances his own interest in this tied to a colloquy question answer between counsel for the government and mr salon up in trial there were i didn't see anything else in the collected jury instructions that would have referred to anyone or any other testifying witness or me to anyone no with regard to credibility and how the jury should approach it well your honor it was a key part of the defense argument in this case that in fact the government witnesses were lying and were disposed to see that offended as a criminal and had no regard for the truth then you cite me any case in which there are only police witnesses and that an instruction of this sort has been given your honor i cannot but i know i do not believe that this instruction is has any was selected typically where defend no but i'm just you know in this case doesn't this instruction apply only to solo no no your honor become in it it i know it is said in general terms but you can say anything in general terms and you can say  what that it means only a person you can speak of judges on our court who are more of an eighty years old and you are respecting everybody but how many are very few points in that regard your honor the st is that the defense argued that the government witnesses were lying and had no interest in the truth so in this particular case that instruction could be taken for others as well that it is that they would benefit in the outcome of the case that they had and where there was a lot i would be incarcerated and think case went one way or another what was the benefit of reputational benefit as to  the up testifying officers what was that and how would they benefit in the outcome of the case without adopting the reasoning of this court this court held in gains in a footnote that anyone should understand that law enforcement officers have an interest in the that modern law enforcement officers i think is the phrase have an interest in the outcome of the case and certainly it was helpful to the defense for the jury to be told that because the defense argued for example that supervising you and the police work for the department of justice not for the department of public prosecutions you don't have an interest in convictions you have an interest in convictions if somebody is  guilty and that's a very different interest than the kind of thing we're talking about your honor i agree but as of now certainly as of the time of this trial and as of now it hasn't been held proffered instruction there wasn't a written instruction as it should have been done proper procedure is were this was given at the last minute that this is a very odd claim there are situation where practically speaking the sandbagging which is why we have a plane air rule couldn't possibly have applied here so that you know this is a mighty strange case to turn came for what warrants reversal on dyno a consideration of a preserved issue regarding a violation of federal rule of criminal procedure thirty b and the standard is that this is thirty one dollars f rd fifty eight  standard is that the instruction the reversals warranted where the defendant can show that he was misled in formulating his arguments as a result of his inability to review the charge now again that's for a preserved issue but there's no argument here that defendant would have given his summation differently if he had been aware of the charge and in fact if you look at thirty b it's explicitly crafted to ensure that defense counsel isn't  by giving a summation that incorrectly anticipates what the charge will be he don't do you disagree that this was a credibility case at the end of the day i accept the credibility was important to this case your honor it was critical wasn't i mean they police notes didn't record his the statement that the officers testified as to as reflecting knowledge that there was drugs there were drugs in the containers and he denied knowing and we get this for you know extended chronology of you know protect send messages and when the call to dalrymple was made and so on it it seems it his behavior seems entirely consistent with innocent conduct i think it's a stretch your honor for appellant counsel to stated this case turn on the bare word of one person against three because the officers notes contain numerous other statements that were consistent with their account of what was said and really didn't make any sense in the view of what the appe iran or i'm just making the case that this is not a question of one person's word against what in fact were three but was there any testimony or any record evidence suggesting that mr salana was paid more than six hundred dollars the ordinary rate rate for picking up the container and possibility of that plane eric and flow from principles as opposed to case law as your honor will recall brown was an extremely different case there were a string of supreme court opinions making clear that religious discrimination couldn't be the basis for any number of different government decisions and this court had held in dicta in the nelson case that in fact it should be the basis for a batson challenge so to apply brown in this context and hold that pla should be found where there has never been any application of the gains rule to the context of a general instruction doesn't make sense and i and i'd like to say something else about gaines which is that it it makes it clearly distinguishes between general instructions even tho that by implication refer to the defendant and instructions that in the force of the court single out the defendant and it does that in its discussion of interested witnesses having a deep a deep interest in the case and it makes clear that instruction like that not deep interest but the interest when it's instruction should live in the general section and it's permissible there even though by implication it affects the defendant all right thank you very much you will hear from mr habib you have two minutes nothing could be more obvious to a jury than a defendant's profound interest in his own case as judge carney has pointed out the law enforcement officers did not face a ten year mandatory minimum term of imprisonment if the jury disbelieved them that a witness would benefit from the outcome in this case the government elicited from solano in cross examination that he was motivated by his desire not to go to jail as every defendant is but only guilty defendants take that interest and turn it into a motive to lie innocent defendants as mr solano was presumed do not in addition i would say that even if this court entertains the government's argument that the instruction was potentially applicable to other witnesses that would not mitigate the constitutional violation the constitutional violation here and the violation of the games holding was the assumption that solano was guilty finally judge calibrates the angry would be it would be most most strange for this court to affirm on the basis that police officers also have a motive to lie to secure improper convictions finally on the on the question of prejudice john carney you have it right this is a credibility case i just heard the government concede that credibility was important i heard the government argue for formants on the basis that some honest trial testimony was incredible and i have not heard because there is not one piece of documentary evidence that corroborates the central inculpatory testimony in this case that is the law enforcement officers assertion that salon no admitted knowledge thank you very much thank you for the arguments and i will reserve decision