now move to united states versus michel let me just confirm the councils on the line it please the court for an eye only mitchell abraham sure because the district court committed plain error when it instructed the jury using the misleading and guilt presumptive hypothetical this court should vacate the conviction and new trial after two days of testimony and an afternoon of deliberations the jury was at an impasse in a note to the court the jury requested clarification of the difference between  and intent as it relates to the statute this distinction was crucial miss mitchell's defense was that she never intentionally delayed mail but she may have accidentally left some in her car the trial court in responding to the jury no committed playing error prejudicial portion of the instruction a mistake does not mean well i know i did something wrong and i'm sorry that's not the mistake in the context of that in the jury instruction my only mitchell testified she took the stand and she never claimed nor did her lawyers argue that she had made a mistake done something wrong and was start however the trial court instructed the jury on this misleading theory seriously affecting the fairness of the judicial process and persuaded by the presidential instruction nine minutes later the jury returned with a guilty verdict today i will discuss two main issues one why miss mathilda not waive her review of this instruction and to why the instruction was plain air prejudicial jury instruction was to just that and drafted by the trial court and not in the the defendant or defense counsel in response to the jury's question requested that the court only charge the jury with band definition of knowing when the court you have one more minute you i'll point the court to page two hundred and ninety nine of the appendix when discussing this issue the trial court at the court if both sides agree that i should just give the instruction on knowingly and perhaps that will help with count i think so judge i think that will give them the direction they're looking for the government then push the court concluded different prejudicial instruction defense counsel never consented to request to the portion of the instruction stating a mistake does not mean well i know i did something wrong and i'm sorry i think that this is a good point roughly three minutes to open it up for any apparently i left in her instance of this mail was underneath the front seat of her cover car i left i left some mail that i didn't i didn't know that the mail was still in my car implying that she didn't intentionally not deliver the mail but it was listed she just she had not the mail was misplaced and therefore it wasn't intentional on her part that lead with the this is the defense's theory was yes that's correct and in fact the ends up being the difficulty here and i don't what i don't understand is how this is presuming that she's presuming guilt on the part of the defendant to the charge was mistake is defined in the law and law dictionary part is an error or misunderstanding and trial counsel didn't want that appetite i packed my recollection where she said was i think it's helpful to  killer tale had a different interpretation what mistake he thought it meant that she was admitting that she had done something wrong to me that what he said i think that there is people ways to look at his agent like i had the money right now and then that that's where the rubber met the road in this case is that everything turned on whether she was had made a mistake just didn't  she had the mail or that she made a mistake she knew she'd done something wrong and so the word mistake became a cornerstone to understanding whether she had acted intentionally or or or negligently right i think the the the problem with that is that the court when beyond that st by saying i made a mistake and i'm sorry which is clearly not anything that was reflected that's what the court said the st i'm reading i'm reading to  the court said this is a three to cheerios steak is defying the law dictionary in part is an error or a misunderstanding so in the context of this case for in the context of this case for example a mistake would be if the defendant believes she had delivered on the mail but it accidentally run knowingly left behind ok then then she's a mistake does not mean well i know i did with the instruction is being is that it is obviously the nd portion of the instruction where she says that she knew that if you did something wrong it was sorry why the last who asked for the instruction on knowingly  well so how well it's a simple question it's a simple question to ask of the clerk the instruction knowingly the defendant ok thank you let me this is judge sullivan i want to g back to the waiver issue remain you you quoted a portion of the transcript from the trial in which the commune's kelman asked about the you know just instructing the jury on the definition of knowingly but after that there was a discussion in which the court then states the instructions in tennis again including the portion that your knowledge acting to but the judge does it and then ms common says right a mistake does not mean i did something wrong and i'm sorry ms kelman said right and then the court continues and then i would just say to the jury to the extent there is any confusion about what mental state has to be shown here let me define knowingly for you that ms come again says that's fine judge doesn't she endorsed the instruction that was ultimately given i think that and i'll point you to page three hundred of our index which is what you're referring to i did something wrong and i am sorry and you know i'm just too i think it would be helpful to really address the earlier question as well and to did she tell you repeatedly that you never held the mail on purpose right but she also that you made a mistake by holding the mail not delivering the mail question she said that was a mistake she wasn't doing it deliberately is that she told you there's no objection then there's another question in this kelman refreshes his recollection that looking at the document line particularly help you remember whether or not that she didn't hold the mail on purpose answer right she didn't hold the mail on purpose question and that she didn't leave the mail the street she told you that right answer that is correct so our position is of course that that statement not only was prejudicial but it also missed characterize the trial testimony and led the jury to believe that not only mitchell had actually stated something like i know i did something wrong and i'm sorry which is not reflected on the record court nicholas moscow for the united states of america i also represented the united states a trial where the district judge is a charge in response to a jury note that was appropriate any error in the charges not clear obvious there was no prejudice resulting from the charges so far as the evidence against the defendant was overwhelming and the only manifest injustice in this case would be to overturn a journey verdict based on a charge that was proper and was not objected to at the time it was g fortunately this court need not reach any of those plain error factors so far as the defendant did waive any objection to the charge in this case the court has repeatedly held that when a defendant signs off on a charge not really true silence  the charge that's sufficient to constitute a wave this is particularly important in the context of the supplemental instructions which are given by district judges off the fly in response to jury note it's important to prevent and begging rather gamesmanship by defense counsel courts upheld in the context of supplemental instructions that binding off on the instruction by saying something like i don't necessarily have a problem with that question that was the that the court relied upon in the will you cited in the government for you in this case the waiver was substantially stronger the defendant not only heard the charge in full and said right a number of times that's correct and i think the court's right about what the theory of defenses but also modified to charge the court was proposing to give the full black's law dictionary definition of mistake and the defendant rightly noted defense counsel rising noted that the word misconception  was not really appropriate in the context of this case that there was no sirree by which the defendant had a misconception about something error or misunderstanding or more appropriate the colloquy with the court noted on page three hundred  a clear indication of the defense counsel did not have an objection to the charge would be hard to find the fact that the defendant had proposed the charge in the st instance did not defeat a claim of waiver that was the case polizzi in which the government and defense had different charges the court came out and proposed a charge and the defense and off on that charge this court held that the defendant had way projection charge should the court get into the merits of a plane  the facts of the charges balance not go for some presumptive and with a good brit should any inquiry however should the court be inclined to look at the prejudice it's worth noting that the defendant testifies not that she had made a mistake and thought that she delivered the mail but that she never said anything about and moreover the evidence that the defendant was responsible for delivering the mail both in her car and the mail found two minutes from where she worked but far from where it was processed and far from where i'm supposed to be deliver yes your honor so the main cases the government sites in terms of waiver are receiving and williams and receive me the defendant specifically requested the charge it issued we do not have that here  and williams the counsel explicitly accepted the court's instruction in the defendant's position is that we never indorse the prejudicial portion of the charge specifically i know i did something wrong and i'm that this error was preventable and of course as the government has cited had a number of different permissible options the court could have as the government stated in its reply simply cited black's law the definition of the state which is in error misunderstanding is in the works you have a mormon the court could have actually used hypothetical facts not in the context of this case or as and sandals and gleason two other