consent and war as i term and have phrased it it's it's no consent instruction which you maintain was erroneous inconsistent with the law undermined that the statute doesn't use the term doesn't use were voluntarily doesn't use the word consensual it uses the words causing jane  question is the question of causation so the it was very important for me in terms of getting jury instructions on the court did tailor its element instructions the way i asked for  issue getting into consent because of the issue that she in fact got injured here and there wasn't any issue about that and it's back both parties agreed that the point of bleeding in injury mr  contact so is very critical here that we that we've aluminite the instructions towards the question of causing to engage in a sexual act and that was my entire argument and that was my entire defense that this started out as mutual behavior at the point of injury he stopped what what happened here is that during the course of the jury instructions judge  gauged in the conduct he did not use force to you engage in the conduct and so the question has to do you have to have force you have to have engagement and you have to have causation soup you have to specifics of the instruction is that so why wouldn't it be relevant and meaningful for the jury to understand the nature of whether the conduct began with violence  was and that was my entire argument and it was my entire human argument in the case is that there wasn't violence to engage in the contact so he didn't cause her to engage in the conduct by the use of force and that and this is a critical issue in terms of the federal law here because the federal law does not use the word consent and actually i think years ago when they drafted the statute they kept th consent out of the statute and they focused on the elements none of which are use the word consent to cause to engage by the use of force now what the court did was it was there to help the victim not to help the defendant i mean  as i understood the history they didn't want to use the word concern because it might make it harder for a victim right in surveillance they didn't use it in the statute so so i thought you said address that specifically what the context of that one statement that i stated to the judge was that also in this this instruction came up during the course of the initial jury instruction conference and i didn't i said i don't know where this came from the government didn't ask for it i didn't ask for it and i probably inappropriate we said the first sentence is ok and then we got into an elaborate discussion about the rest of the next sentence which is the eat probably the greater offending of the two sentences but i understand now that in retrospect that may be your view but and if we're going to evaluate the district judges yes use of discretion once he is  that he's correct to say that the defense is consensual sexual relations then another sentence that speaks to the term consent seems less well if you actionable as a whole page of me objecting to the  entirety of the instruction and then we got to the end of the case and my objections are on page one forty seven and to sixty seven i objected to the entire thing so i think that i did say that it's i record but i do want to point out that the first sentence is also it's clearly erroneous statement of the law because it doesn't use the word cause it should have said they did not use force  the end result that takes me out of my defense were argue that this was all initiated between the two people and that the end result the accomplishment that's what we didn't want to get into in costco he says because it was compas the end cell it's accomplished once ni once that definition is satisfied as well i don't think it's that clear because it doesn't say a limitation in the sexual act i think it's very easy to look at the word accomplishment with the sexual a and then when you equate that by the end of the clause if you accomplish the sexual act by the use of force force is defined by by injury since there was injury here therefore there is force and it was accomplished is virtually directing the verdict here by the use of using the word compliment in equating that with force since there was an injury here there wasn't any question of an injury here and that's at the moment that my client stop the behavior so it was very important that the legal elements in this case be carefully provided to the jury did you offer i know you didn't want this instruction did you offer an of the defense instruction no i actually no i didn't i didn't i didn't and i didn't want to because i wanted to carefully argue the elements of the statute i understand that they mean this is an unusual case to say the least all the way around you know difficult defense case but i wanted to keep it within the narrow confines of the accuracy of the statute as drafted and unfortunately the judge interjected this concept of consent and did it contrary to the the way that the statute was drawn up it was misleading and inaccurate statement of the law because if you look at the consent instruction there's two things there's no causation tied in here and it's also got this idea of accomplishment the end result results from using force or there was an injury here virtually directing a verdict so in your view the way the jury you think the jury could have read this instruction where if you consider if you're the jury number what went wrong here what led them astray what was the result that they came to that was improper  saw that there was an injury she did not and they used that you put that clause in there against their will no one's going to agree to be injured i mean so no one was going to argue that and i didn't want to get in the idea of consent to be injured  we got the problem here is that you got the accomplishment was accomplished the injury was accomplished by the use of force which in the use of force is defined as injury if you take the injury you accomplish meant and then that that resulted in injury no that was my entire defense in this got in the entire defense and i'd like to i'm still struggling with the fact that it doesn't say the injury was accomplished against her will it says the sexual act was a cultist against her will and i thought you just said sexual act is defined elsewhere as in a more limited way if you have any more to say on that might be helpful well i think you mean the sexual act it doesn't limit that sexual act is just  initial sexual acts as the so that i don't think that there is some kind of limitation on the sexual act was accomplished so it would include the fact the the end result of the sexual act and putting the injury so i think that constraint because it doesn't exist in the statute and it's confusing and it's contrary to the elements as we had properly defined which is causing to engage in sex act by the use of force now simply add is that this this got in the prejudicial near nature of this instruction it's so amplified here because the judge said that this is my position it wasn't my position and i had this jury instruction here which is basically offered as my theory a defense i never argued it never referenced it once my closing argument and i was stuck with this which amplifies that somehow i'm agreeing that this is my business my defense position which it wasn't i didn't say that  idea of accomplishment the end result by use of force is actually completely contrary to my entire closing argument never referenced and i'm just kind of stuck with it so it was very prejudicial i am running out of time so i'm going to reserve lacker james lackner for the government i did not try the case below but i have reviewed the record extensively so i am familiar with it and i guess i would start out by saying that the statement that mr alston's that it was well established in the record that the defendant stopped as soon as he saw blood was only established by his own testimony not established by the testimony of the victim who essentially testified that she blacked out when things were going on that she couldn't remember once that they got into a fight where he was slapping around hitting or and getting or two to go into this fisting thing so to the extent that that's a relevant fact it's a relevant contested but i do whether or it's common or not i'm not sure is is gone just curious it's so you seemed unusual to me that the judge would say here's a theory of the defense instruction that the defense has not offered i think it was a bit of an unusual case but i think you also have to understand a little bit of the background one of the flaws that mr olson is arguing with this defense instruction is it defines consent and i'd like to make two points on that one you can hardly blame the judge for doing that when you look at both the opening statement in the closing argument of the defendant defense attorney argued at least four times in the opening statement use the words words consensual sexual activity consent at least once and i stopped counting because i thought i probably would have made my point on this so there may be more but at least once in the closing argument he uses the term consensual sexual activity so why is it improper for the court to inform the jury what consent means and again whether he requested it or not isn't the measure by which you judge the case you use your normal standard of reviewing jury instructions and i guess my main point here is that what you're being asked to do in terms of reviewing this jury instruction is really the exact opposite of what you as a court have said many times before and how you review jury instructions which is you don't look at a single sentence in isolation you don't take a single word and stretch it out you look at what the totality of the jury instructions are to make the determination of whether there's a fair and adequate statement of the law would you consent not an element of this no but i don't have it and it's not a defense it is a defense i don't know how you separate consent because they were concerned about the doctrine of resistance regardless of it but it's not part of it it's not part it it's not an essential element but that's not the same as saying it's not a relevant concept is a prosecutor i don't ever need to prove consent because if i have to prove consent and i have to show that the victim did something to show that she was resisting and that's dangerous for the victim and his congress said look there's no other statute where we require this we're not going to require here as a defense it is a defense to be able to point out that the victim willingly went along with this it's relevant to show hey i didn't use force correct and when you're talking about consensual sexual activity as much as the defense attorney did i think it's a fair thing for the court to say ok this is what consent is and that's what's happened and to state here that that is not is going to the syria defense instruction itself that first sentence is really the only part of that instruction that can be classified as it's theory of defense and it lays it out and to say that that wasn't the theory of defense is just in error because if you look at the language of that first sentence it is very almost it's it's taken from the elements of unst of offense instruction which the second element of it which the defen attorney submitted to the court and which the court adopt it and so to say that's not my theory of defense is just simply an error that if you just look at this the language itself the first sentence the theory of defense that we're talking about here is it is a defendant's position in this case that on the morning of march fourteenth he and jane doe had consensual sexual relations and he did not use force against or to engage in sexual  actual intercourse part is wrong i don't think that's material what's important is that that's what he argued and that is what the element of the offense instruction second element presented by the defendant says and then you get to the part that he disagrees with that there is no consent of the sexual act was accomplished against the will of jane doe by the use of force coercion or threats the standard again as i said in as you've said the funny times if you don't take these things out of isolation what the defendant is doing is in effect a kind of a game of the six degrees of kevin bacon where what you have is we're trying to make weird connections all over the place it's not realistic it's not a it's not how you approach jury instructions and judge college and i you said it better than i did it in in the brief but the point is that when you look at that sentence it's a sexual act that was accomplished and the sexual act was accomplished against the will if the sexual act is accomplished against the will then you have met the statute and there's nothing here that distorts the looking at page or believe it's two seventy of the transcript at the very beginning of the opening of the closing argument that a usa did say did ask the question was physical force used to perform the sexual act mr  objected misstatement of was the court that i'll give the law and you know when you're done then and this is key because i think this clarifies everything the usa then said when the judge instructs you on the  the laws whether the defendant caused the victim to engage in a sexual act by using force against or in other words he read the element of unfenced offense instruction that mr olson provided to the  now there are other instances where he does get into the nature of the act but to get into the physical nature of the act is not improper because the issue in this case was did she willingly undertake this act  one of the key questions that the jury has to do when they're looking about the defendant on one side and the victim on the other she's saying she did not can willingly do this that the defendant used force against her of the victim defendant is saying she willingly undertook this and then he testifies that it's when it's he saw blood he took his fist out and but if she wanted him to continue the question for a jury is who do you believe and one of the questions that a juror i would imagine has to answer is would you willingly undergo this and so the question is of the very nature of the act goes to the issue of whether someone willingly want to long with this  resist it and so that's why the physical nature of this act is not only inherent in as an issue but it's probably paramount because it goes to the question of intent did she was she willing to do this and it's a fair question to to ask given the nature of this act would someone be willing to do this and so that's why it's relevant and you just say he described the is really not to say anything of any significance at all because we're entitled to do that to get into the mindset of the victim when the defense is essentially consent despite what the defendant wants to argue here now when the defense s willingly undertook this then it becomes highly relevant as to why would she want to why would anyone in their right mind want to and maybe the defendant can point to statistics in his brief that there is for seventy percent of the population that might want to great but it's still a fair question to ask and that's why it was not improper to do that and couple that with the fact that at the very beginning he does after the objection state and read the jury instruction and then tell a jury this is the question you have to answer it's just there is it to me at the phys imagination that that is somehow an improper and i don't know that long winded answers your question but the other issue is related to this is not only do you not take things out isolated sentences but again you look at jury instructions as a whole and you have to go back and look at the fact you know even if there was merit to what to defend it was arguing about the sentence which i don't concede at all but you have two other statements by the court and the element of the offense and the first statement in the theory of defense which exact which is exactly what the defendant submitted to the court and so clearly as a whole this instruction was proper and unless the  comments that i think it is improper for a judge to create a defendant's theory of defense instruction and give it and tell inject the jury that this is the defense's position over the defendant's objection  instruction and page two sixty seven of the transcript does not use the word any required element of causation so it should've it's omitting the the element of causation so the first half of the instruction is just error it's wrong and it isn't what i requested the court to give the instruct the jury in the elements and in this case the court's instruction interjecting this concept of which doesn't exist in the statute it's not an affirmative defense it isn't in there it should have been interjected the courts are tailored it's instructions consistent with the law the law doesn't use the word consent it doesn't get into the militia of the this came from because i government hasn't cited any case that this second sentence the consent but accomplishment is is appropriate or consistent with the federal law here and i believe that it was errors agreed just ear because