going to to make the point that the plane there i want to focus on the second of the two instructions that is of concern the one dealing with section two that's what i call the willfully causing destruction and i think we all know that that instruction has been given probably thousands of times i just read judge use it's probably been objected  to very rarely because it's a pattern instruction and yet that instruction is plainly wrong most obviously it wrong because it substituted the middle state knowingly or the statutory term willfully and that's not academic differ there is a real meaningful difference between a requirement that a person act willfully and a requirement that a person act knowingly willfully as defined by the supreme court and bryan and by several circuits in their pattern instructions means acting with a bad purpose with with knowledge that you're violating the  that is a state burden it and it's an important obstacle to conviction for the governor the term knowingly which is what used in the pattern instruction and what was used here particularly as defined by the prove it is correct let me put it this way or that definition of knowingly mir's a standard definition of knowing i'm not quarrelling with that definition and knowing what i'm saying is that the than yours that the problem is that most fundamentally the substitution of knowingly for willfully and here's why that makes a difference that the term knowingly as your honor points out is standard in the criminal law to basically mean that you know what conduct you're engaging in there is no requirement that you know that your act with that purpose that you act with the knowledge that you are behaving illegally the term willfully that actually the conference the divert the discussion about jury instructions was pretty prolonged in this case and the defense raised the number of objections some of which were sustained  and then the defense version was accepted that's true what we've had our recent cases that say well we'll treat this kind of rote call and response no objection is maybe just going with a forfeit e instead of a waiver we compare that to with the way we handle sentencing cases where if somebody if a defendant raises let's say two or three or four specific guideline objections or p s r objections we will treat that as a deliberate decision to forgo raising other objections that might have been raised at the time as apparently nobody really cared about the eating of benteke destruction once the other defendant dropped out of the case well let me say this you are first of all it's true that there was a lengthy jury instruction conference in this case and there were objections raised on this particular one though it was a pure call and response instruction number propose instruction number twenty defense counsel who are very capable lawyers who are asleep at the switch you're is that the idea well here's what i would say about that they were very capable i have no dispute with that but it's a fact your client got a pretty phenomenal result many he might take you sitting in prison so he might disagree with you i understand that but i also have someone familiar with the evidence in the case but the here's what i would say i think that because this is a pattern instruction it lawyers including very good lawyers to kind of gloss over it without really thinking about it and i say that because i try cases myself and i've done that myself so i'm not saying that to cast aspersions on the trial lawyers it happened and what happens when these instructions are given time after time after time sort of by rote people stop thinking about them and this instruction is a classic example and you make in your aren't eating in a betting instruction and the government says that was aimed primarily at the defendant who dropped out let's focus for a second on the willfully causing obstruction because that's an instruction that and now we're talking now about eighteen u s c section to be in charge who don't do all the acts themselves but who direct others to do and that's mr freeh at least that's the government's view and he was in charge of a lot of the things that happened in this case he didn't do he didn't prepare the power he didn't draft the affidavit he a lot of the communications back and forth with the banks he didn't handle so that instruction in a close case where the jury is seven not guilty late guilty is  i interpret the verdict to be a pretty clear compromise because it's wildly inconsistent that type of instruction for a man like mr freed who is in charge and who didn't do a lot of the individual action itself could be a crucial instruction of intent argument which and you know i get that manifests itself in different ways for different counts because there are several different sort of discrete factual settings here but that was the basic argument and and again going back to the willfully versus knowingly issue that's a critical distinction because if you're arguing good faith and instruction that you have to have a that purpose to disobey or disregard the law is much different than an instruction that you merely have to act knowingly meaning you knew the conduct that you were engaging so it's it's an instruction and i'm particularly focusing now on the on the section to be instruction it's an instruction that really could make a difference in  particularly the way it played out in the vote where you have a split verdict inconsistent verdicts the only way to read that i believe is two factions that compromise and where you have an instruction that waters down the educated away because i've been there and i've done that i know how it is with pattern instructions after a while people don't look at them anymore they just they just gloss over them and the judges give them lawyers your honor let me talk to touch go back for a second to the waiver issue because that is a threshold issue the government raised and it obviously could be determinative if you find that it is a waiver that the cases that we rely on  waived and the reason is that it waiver is a knowing and intentional surrender it's a it's a conscious knowing intentional decision not to challenge something and where you simply having no objection it's sort of hard to lose and if you find if you do a plain error analysis and again i'm particularly focusing on the section to be instruction i think all of the requirements are playing a plane or are met here  i particularly want to comment on it's it's a an agreement between j f k which is the mr preacher company or one of those companies and bank of america and it includes a provision that sets obtain the release of the test note by a certain dish in the government says when that was signed on september seventeenth two thousand and nine there was no intention to try to get a release back over thirty first two thousand the problem with count sixteen is there is no statement at all there is simply a provision that says in an agreement that takes you can't withdraw money and that certain conditions are met and the allegation that those conditions weren't met and that's translated into a false statement count that should not be a false statement because out mr freeh did ready all sorts of objections to the other instructions in the case some of them were meritorious some were granted by the district court destruction surprise things were taken out he offered no objection to this required for the offense now that instruction of course is rated context for all the in our instructions in the case which define the offenses under consideration by the jury and the elements of each of those offenses there is a mental state required for we were like ships passing in the night on that structure i don't see it as a section to be instruction i see it rather as a relatively common  real estate development companies huge t v which is the uptown girl venture there's all sorts of organizations freed had employees working for him for he had employees preparing power from his partner can come in the streets and would feel project i thought was it so the statement that for the instruction that one may knowingly act through another if you cause that person to do something means you're of accounts with can come out or somebody else performed the mailing or the wiring or something like that so the government's argument that the use of knowing or knowingly in the subsequent instructions w or is as a defense under consideration by the jury and other portions of the instruction then of course that when you say that way then the jury's course destructed in to make the next paragraph or the following page of instructions as i understand him the argument today he would be essentially requiring the government to prove in a case like this where previous acting through others to commit willfully element that must be layered on top of the all the other mental state requirements of bank fraud wire fraud false statement so i just  up i think it's a relatively unobjectionable statement of agency responsibility that is appropriate for a case where freed is the head of a large organization all time many many millions of required for return of security deposits to its tenets and so on a reasonable working reserve is what the agreement called now the evidence was big when  and the day before that that agreement was made by cash reserves of streets of which there were something like sixteen thousand dollars now this is an entity was a real estate tax bill of something like four million dollars believe rationally believe that when we made that statement to the bank to get that loan modification he had no intention of the fighting by that agreement making it false and you know i would advocate for the stricter rules namely that if and as i had always understood it your instruction kind of his you're supposed to be on your a game right every word in those instructions is important to the way the thank you don thanks very much mr klein pre buttal i'm going to talk fast i believe the government just said that using the lesser knowingly standard rather than willfully is consistent with sort of standard agency principles here's here's my response to that federal there is no federal common wrong a federal theory of liability has to have a statutory basis when