thank you good afternoon your honors my name is sidwell let's be from tucson representing anthony surely the appellant in this case this is a difficult case and i'm going to try to explain to you why i believe this case should be reversed and remanded first of all the court should be aware that under the doctrines and gordon involved though a defendant in a criminal case is entitle to an impartial jury trial and in order for it to be impartial under the fifth and sixth amendments in order for the defendant to receive proper due process they have to be instructed properly by the judge and in this case  they were instructed improperly and i thank the court for the opportunity to file a letter brief in this case pointing out why the defendant was not  the court it is due process rights by virtue of misleading instructions given by the trial court in order to prove up the first count of aggravated sexual abuse which is violation of eighteen us code twenty two forty one eight two as charged in the indictment the government  was required by virtue of the indictment in the statute to state that the defendant appellant in this case acted with the use of force and threat either of herself or of another person this was not in the jury instructions i don't know why it's not in the jury instructions but it was in the jury instructions and therefore as to this issue the friend did not receive a fair trial secondly the term sexual act was completely defined in the jury instructions th were references to what might constitute sexual acts but you eighteen u s c twenty two forty six requires penetration to be done with an intent to abuse you really harass degrade arouse or gratify the sexual desire of any person this was not in the jury instructions it was mandatory that to be in the jury instructions but it wasn't and juries you'd agree that none of this was raised plain and that the ever effect of this substantial rights of the defendant and affected his ability to receive a fair trial that was not raised i was not the trial lawyer in the case but it was difficulty with that is that if those errors are called to the district courts or a trial court's attention and the trial court has an opportunity to correct and counsel agrees with the jury instructions doesn't object to them that agrees with me then it should be subject to reversal but it's basic basic basic law you have to be instructed properly and yes it's true the trial surely one of the questions put to us before coming down here was whether the charges were multiplicities and an indictment is multiplicity this if it charges a single offense and more than specifically stating exactly what the government believes the defendant did illegally some of the counts don't require any additional proof for example in count one contact between the fins penis and the mouth of j v a child who had not yet a thing the age of twelve and who was eight years old by threatening and placing her in fear that another person be subjected to death or serious bodily injury the not just the blanket situation so for example in counts five and six it's lumped together they don't specify the specific acts other than that they committed the alleged to have committed specific sexual acts but we're not told what they are they just lumped together and the during is to consider whether or not the fed is guilty of each individual count rather than  because your honor it as the government has conceded in regards to counts one count three there were essential elements that were missing from the jury instructions that was in error and it was plain however plain error requires one edition step that has to be shown by the defend it in that he has to show that this error affected his substantial rights that is that he was prejudiced now in regards to count one the defendant cannot mean meet his burden to show child and the jury instruction for that matter included the element of force unnecessarily if this involved and it did this involved the same defendant the same victim and involved the same sexual act that being that the defendant forced the little girl to put his penis in her mel if the jury found force was sufficiently found for count two they necessarily found that force was found for count one as such there can be no by themselves independently twenty two forty one hundred two allows a charge of aggravated sexual abuse where the defendant commits the sexual acts or causes somebody to engage in sexual acts through the use of force twenty two forty one a c is a totally separate charge where aggravated sexual abuse can be found merely when it involves a child and youth the age of twelve so in this particular instance the air the government made was in count one we charge something that was in fact   count two only has one the only one of the counts has an element that's different than the other offenses but in this particular instance there is no prejudice to the senate on the deep place city first of all i w again this is not something that was raised by the defendant below second by the way that was charged by the way the elements were given to the jury they had to necessarily find both the force and according to the child so we're not in a situation we're guessing a could they have found one and not the other we know that they found both in this particular case and all the other elements were found so there was also no sense in prejudice and in this particular instance because  the court group counts one through five those all involve the same victim j b in the same series of facts against her and the counts were all wrong concurrent so so you really care if count want to strike to make a difference anyway and i would certainly agree with that analysis your honor we believe given that that counts two three and four were not to multiplicative and they can stand on their own as charged now the court has raised the issue of both the jury instructions didn't require them to make a specific act finding and that by not doing so that may have caused these particular offenses to be deemed to be  however in this particular instance in the way that the jury instructions were faced and it's our obligation to look at these jury instructions as a whole to determine whether or not they were misleading not each individual instruction the jury in fact did not were not put in a position where we can't tell if they found specific expres for specific offenses in this particular instance the jury was instructed that they had to make their findings based off  first the court said for aggravated sexual abuse as charged in the diet meant that they had to make their findings as was set forth in the indictment and this was reiterated in the verdict form where in fact that the jury was instructed that they had to make their findings as was set forth in the indictment and we know that this particular jury luckily was paying attention because when they got the initial instructions that didn't include force for count one but did include it for two three and four they sent out a question noting that and as a result at the end of that specifically asked should they mate based their findings based on what was set forth in the indictment and that's a court record to eighteen so the purpose of having jury instructions were to tell the jury you got to make specific taxes a specific findings so that we know that they in fact made those findings for each count in essence that's what actually occurred by practical application because in this case they asked the question we should make should we make our findings based off what's in the indictment they were given a jury instruction that told them they had to make their findings that the government had to prove their case as was forth in the indictment and the final verdict form reiterated that they made their findings as was set forth in each indictment from the question that they were given it's clear that they had the a date and it's clear they knew what the obligations were in regards to that indictment as such the practical application of the instruction was that they made their findings so for count one or and two the finding was that the defendant forced the little girl to palatial on him four counts of three that he digitally penetrated her and four account for the specific act being that he put his mouth on her genitals and performed a sexual act on her that's what was set forth an indictment and that's what the jury was told they had to make their findings on  the count three being that was raised that there was a missing element in count three that being the sexual gratification the government would argue that there's no prejudice to the defendant there either because there's more than sufficient evidence for the jury to have made that finding the reason beyond a reasonable doubt as the supreme court held netter there are going to be times when unfortunately the jury instructions aren't going to be perfect and an element might be missing however that doesn't mean that the verdict is necessarily unreliable or not a proper vehicle for a conviction it doesn't mean that the trial it has been rendered rendered fundamentally unfair this improper jury instruction imperfect jury instruction is not a basis for overturn the conviction so unless the defendant can show that in the evidence in this case the jury would not have found that missing element of sexual gratification beyond a reasonable doubt he cannot show meet his burden to show prejudice and this overturned and we have conceded that that element should have been here however in this particular instance it's very clear that there could be no other purpose for the acts that the defeat it performed on this little girl in the acts that he performed her perform on him the defendant  victim's testimony is that the abuse of the occurred has occurred if that is accepted by the jury which in this case it clearly was it effectively proves all the elements the defense including that the defendant intended to seek sexual gratification note for the court count five which involved the same victim and the same defect defendant was part of the same series of crimes committed against this little girl involved the defendant putting his penis on her buttocks and that jury instruction properly included the intent element that was missing in three that he did it for purposes of causing sexual recreation to occur in a person if the jury was able to find sexual gratification by that particular act there is no reason to believe and in fact it's proved beyond a reasonable doubt that they would have found the sexual gratification element in it count three which were which was a much more agreed his act that was committed by the defendant i don't believe i have i guess the one thing that i would raise at this court is is considering finding that the because the jury instructions were insufficient and did not properly ensure that the jury made specific findings of specific acts for each count as was set forth in our  i don't see how governments counsel can say that my client wasn't prejudiced when this clearly record of misstating by the lower court of my opponent pointed out a jurist question asking about an inconsistency between the jury instruction in the indictment and if they were to answer the jury foreman using the counsel listed on the indictment and the district court answered yes to that question and advise the correct instructions would be provided shows us that the jury was confused if a juror raises her hand and says there's an inconsistency between the jury instruction and the indictment if he was obviously confused other jurors might have been aerators i don't think he received a fair trial i think the entire case should be remanded in reverse thank you counsel case just argue be submitted for a decision and we'll be in recess for the afternoon