my perspective mr moore tried this case pro se and given his closing argument he was removed from his duties representing himself and his stand by counsel was a was designated full counsel and standby counsel requested a lesser included offense instruction now for counsel and the discussion with the court is not about whether or not he's correct that the evidence supported such an instruction it instead focuses on  nerd's prior disinclination to request or have such an instruction so it seems to me relatively clear that the evidence did support such an instruction the quantity of drugs found on his person was relatively small seven plus grams of crack ok the police officer testimony about what the street value of that would be is a little ambiguous but i think the best case scenario for the government would be it be about seven hundred thirty dollars about one hundred dollars a of cash too with seven hundred dollars in the circumstances of getting it are a little ambiguous because he did supposedly say to them that he had cash for bail at the house and they went and they spoke to his girlfriend or some female associate of his and she went to a vocation and gave them cash one could draw the inference that would be his cash but that's the pending on her reliability which really wasn't no one really heard from her in this case so jury could if that discretion to believe or not believe each little piece of a government's case as they would and yet if that were the test it would mean the third prong would always mean that in every single case so unless we're to hold that it seems to me that we need to come up with some some addition on to mere possibility of a jury just picking and choosing between parts of the government case and we need to there's some particular reason why they would pick one or the other and here what i'm struggling with is the defendant put on no evidence at all and in closing simply argued for a complete exoneration  words he dealt with the government's case as a single unity and said never happened so how do we get around where is the where is there some point above you always meet the third and he also said and i never intended to distribute a so he said both so here's the distinction i said there's a there's a break in the action so to speak a jury a rational jury could conclude that the cops didn't chase him and make up that they found the drugs on his person that seems relatively credible given his behavior and the corroborative circumstances of his behavior in his throwing up in the car and all the rest of it that seems like something a jury could reasonably excel and then the question becomes will they get him back to the police station is there or is it necessary to believe the rest of the story  in these circumstances we know that the police officer has a motive i don't mean i mean as a generality when there's a motive to enhance a little bit their case and the only way to win here it's their case in this in these circumstances when it's a small quantity packaged in a way that doesn't necessarily suggest that it's not packaged it's individual grants or after rahm's to add a little bit and  there's a particular reason in this case not to trust the police because they have recording devices according to their testimony into all of the three rooms that they used to interrogate people and they had an excuse for not using one of either one of those rooms to my mind a highly suspicious thing counsel was that evident the evidence about the recording was that brought out in the course of trying to cast doubt on the admissions well it's hard to know if you have read the record you would be reason to doubt the statement right because they didn't use the room at that have the recording device the main room because he didn't know the combination to get in the lot all right they didn't use the room that have the  conversation the supreme court of massachusetts says in these circumstances we're at a police station or the functionally equivalent and you're interrogating a suspect the failure to record it is something that we instruct the jury about in other words they were told to to treat that with suspicion and a higher level of scrutiny assuming that there's a basis for along the lines you're suggesting for a rational jury to look at this evidence and include the physical evidence is different then the confession or the statements evidence yes and therefore then all you would look at for purposes of applying whether a rational jury could believe that you should get a lesser included charge you just look at the physical evidence you see how big it is how plausible would it be that a jury could have concluded it was possession not intent to distribute semen all that's right some circuits as you know one of the government argues that you don't address in your brief i think  there's a separate requirement that you not make a general innocence claim in other words if your theory of your defense is i didn't do it at all you can't get the lesser included offense that seems to be what the d c circuit has suggested in some other services suggested that's what the government press isn't every could you just respond to that argument i don't believe the first are going to have taken that position right we have a task that does not include that why shouldn't it and if there is a fear way to read the evidence so that a rational jury could conclude that a lesser included offense is in fact the right decision why would we take it away from  them no matter what the other circumstances are i mean the whole idea is to promote rational fact finding i can't conceive of you know sort of these nitpicking little rules that say well in this circumstance we're not going to try to promote rational fact finding because what difference does it make in the end for the jury we're the evidence comes from whether it's the defendant or somebody else the bottom line is to make a rational  anything that promotes rational fact finding should be encouraged not this curse and in this case especially where you have a pro se litigant to if you read the record clearly does not know what he's doing he might have a motive to get his testimony into the trial record in the form of an opening or closing which the trial judge try to deal with but in terms of what he's doing he clearly doesn't know what he's doing  to impose such a requirement seems particularly wrong to me and in addition he really did argue though he said you know i didn't have it but if i did have it i didn't intend to distribute it that was the short part of his closing argument that actually got in front of the jury so in massachusetts for instance the lawyers do not make this decision  of whether of whether or not a lesser included offense instruction is required because the case law in the state court of those in the us tracy is that if a jury could reach this i'm margaret magoi for the united states if i may begin by trying to answer judge barron's question which i think also will answer judge chaos question your question if i understood it was why should this circuit not agree with the five other circuits that have ruled that where the defense is a categorical denial of all guilt why a lesser included instruction should not be given and the answer is because to do other than agree with that was circuits would effectively eliminate the third requirement of this court's test which is that the evidence would permit a jury rationally to find the defendant guilty of a lesser crime but not guilty of the above the greater crime well if he's not guilty of anything how can he be guilty of the lesser crime but not guilty of the greater crime and to answer the court's questions with respect to the evidence in this case our position is that there is no basis either in the defendant's evidence before you get to the evidence point this responding to the counsel argument it seems to me too quick to say that if  defendant seeks complete exoneration that he's therefore forfeited any interpretation of the evidence that would admit of a rational conclusion that he might have only been responsible for a lesser charge in other words why doesn't just if the objective evidence allows that conclusion why does it matter if he doesn't choose to go for the whole ballgame and say complete innocence as he applies to concede guilt us to some aspect of the case in order to preserve the lesser included offense that is my understanding of why would that make sense it would make sense because there would have to be some evidence from which the jury  nothing if we posit but just looking at the actual evidence regardless of what he argued doubt about the legitimacy of the confessions because of a concern that it wasn't recorded small quantity of drugs not a huge amount of cash just looking at that if he had argued for a lesser included offense we can posit that a jury rationally could have concluded that he was only guilty of possession not intent to see if you grant that why should it matter for whether he's entitled to that instruction as to whether he chooses to concede possession or whether he chooses to assert complete innocence as to all  irrelevant and we just look at the facts of the actual evidence to see whether it would rationally and that of a lesser included charge i understand that argument in your brief i thought you were asked to join the other circuits we are which suggests that even if independently that evidence would admit of such a rational interpretation nonetheless if you argue for complete innocence you forfeit your right to the lesser included of my understanding those cases judge karen is that the case is first look to what the defense evidence presented by the defendant and then as a back up look into whether the government's evidence would permit a lesser included offense instruction which is why i keep coming back to the facts of this case because in our view if you stop at what the defendant said i will quote you two quotes from this closing argument one of them those drugs was not found on the period page one thirty four page one thirty six i did not possess drugs and i did not intend to distribute them on october twenty fifth two thousand and eleven if you stop there it is a defense of complete innocence with no factual basis for finding that there was possession but without with intent to distribute but warming on to the government's case which is probably appropriate under the unusual circumstances of this case where the defendant was representing himself pro se and where a standby can and so did an admirable job of trying to protect his client to start with judge thompson's question isn't this just a tiny bit of cocaine and couldn't the jury infer that it was intended for personal distribution well if you do the math the amount of cocaine that the defendant of crack cocaine that the defendant possessed was worth unemployed and couldn't find a job so he resorted to distributing drugs in order to make a living second he was on route to portland to sell the remaining drugs he had at the time the officers found him third that he was scheduled to pick up additional drugs within a few days that his source was from boston he described the transactions in manners that the officers testified are consistent with the method of operation of drug traffickers coming from boston to maine for that he sold an ounce of cocaine per week fifth that the money that it was in his hotel room and this is found in page one forty two of the record was the proceeds of drug sales don't we know that if i understand it correctly the first time the government put on its proof we do have what we do have on the jury but we have many many bits of information in this record that were led to that hung jury the first time was the defendant's obstreperous conduct but the fact remains that even if there was a hung jury the first time it was a mistrial in which the government was permitted to go forward a second time and the second time the government put on all the evidence that i have described which is you're not trucks that were found the statements the defendant made the amount of money that was before it the question of each element of the claim including the aggravating element distribution and have to decide each of those elements no matter what the defendant ha this admission that the police station looks a little squirrelly to me it's not id so we're going to compromise why is that not or at least the rational scenario well because i think that the scenario that you were positing is really inconsistent with the principles of why lesser included instruction should be given and rationally rational control for different inferences to grieve credibility if you have them and then i come back to your question judge karen at the outset doesn't that mean that a defendant is right not in the case in which then imagine you had a case in which the evidence like and the wording in the d c circuit is a huge pile of heroin how are you going to get a lesser included offense it's not plausible that he was just possessing it so in that case it would not be a rational inclusion here we happen to have physical evidence where i think the readily one can say is rational from that physical evidence of alone to conclude that a jury would say possess and yes intent to distribute i'm not sure beyond a reasonable doubt then we have statements by the defendant which certainly bolster the argument for concluding that he had an intent to distribute since he said so but it's not physical evidence it's not reported and so the jury rationally could doubt whether those statements were in fact made that were being attributed to him in that circumstance why would it be rational for a jury to say i'm convinced of possession but i determination just because a defendant quite rationally chooses to go for the whole ballgame and assert as he's entitled to do constitutionally that i'm innocent of everything and i come back to the original point which is doing away with a third prong of this court's test at the court is prepared to do that this is not the case to do it because in this case we have a flat out denial by the defendant and we have a circus about to direct a case if any admitting he's  argument i'm not sure i'm understanding your question judge dad because if the government argues for complete inculpate yes does it waive the lesser included how would that issue ever get to the court because the instruction the hypotheticals points out of the of the idea that the defendant by arguing for their complete innocence somehow has waived the right to have the lesser included because if they're seeking the lesser includ and they got that instruction they would not be obliged to concede guilt now as to any of it so they could get the instruction and make the exact same argument to the jury that he made which is i'm completely innocent of everything but but he came in last the argument is in order to get the lesser included instruction i have to concede guilt to the lesser included offense which cannot be right well in all the cases in the other circuits and i understand you have to be persuaded  by finding been in all of those other cases the defendant it needed to something he did the defendant it needed that he possessed child pornography but he did not intend to distribute it or the defendant admitted that he killed his life somebody but the person he  thought was not the person that was charged in the indictment in each of the cases that the government has cited the defendant is so completely innocent people don't get the right to a lesser included well if i may but i think everything has to be considered in the context of the particular case in which the issue arises because if you're going to make good law as you always do you need to understand what the ramifications are and to make the law in this case that a defendant is always entitled to a lesser included offense instruction where he is completely denied guilt is in the government's view to create a lot that the court probably does not intend  front of the jury and says i didn't possess drugs and i didn't intend to distribute them does that not t r u the issue for saying either you completely believe the government's case we completely believe the defense case but you can't compromise when there is nothing to suggest that he possessed it purely for his own use that's the government's point that you have to look at the facts of the case in order to make the right law and under the circumstances of this case where you have a defendant specifically telling the jury i didn't do anything it's all a police line that it's not the circumstance under which to say the defendant who does not request a lesser included offense instruction just s about this because in that setting defendant we've done exactly what he did in this case there would have been an instruction on a lesser included offense which must suggest that he jury is capable of understanding that the defendant who's arguing for complete innocence but it's also thought instruction of the lesser included offense might be making a kind of alternative argument i'm completely innocent but given the evidence if you think it's only possession that's enough and i just don't it is hard to understand if that could quit to answer your question baron one answer the question is that if the instruction were improperly given that would not be an issue on appeal because that would be to the government's detriment but we would not have the right to appeal it but second it would fit only if given that instruction the defendant said ok the judge has charged you that you have the option of you have three options you have the option of finding me guilty as charged guilty of the lesser included offense or not guilty at all but there's something to put the issue of the lesser included offense in play and there is nothing in this case to put the lesser included offense in play i'm really puzzled because you're saying if he had simply stood up all he'd said a rational jury could convict the defendant of a lesser offense but a clear of a great offense and on the evidence of this case the jury didn't have that option they had one or three they did not have to same hypothetical suppose he don't think judge hey i think that is a tactical decision to go for either one or three and leave out two because two amounts to a compromise verdict and that's the defendant doesn't want to vertica any deal what he wants is not guilty of everything so for him to get that instruction he has to admit something that permits the jury to find the alternative in between not guilty of anything or guilty as charged but i lesser included of the evidence that there are now he has a right to request it in this case he did what his attorney did his attorney did and under the circumstances of the case and in light of the evidence before him and applying the three part well that's not the only thing judge johnson the judge also pointed out that the defendant was permitted to review the jury instructions before they were given and he noted no objection to the defendant personally in the second trial was given an opportunity to review the instructions he did not object to any of them and he did not ask for a lesser included offense instruction so in terms of what the end defense counsel very candidly said that he had had a conversation with the defendant in the lock up that he didn't want to explain to the judge for very good reason and that he had no authorization from his client to request that instruction so we have an additional wrinkle here of the defendant on the record not wanting the instruction his attorney very conscientiously trying to preserve the record and asking for the instruction and then the facts as we've discussed many times which do not support the giving of the instruction so again this is an instance in which the instruction was appropriately withheld because the defendant personally had not wanted it the court has other questions i'd be happy to answer them i have gone way over my time