l of the district court to give the implicit bias unconscious bias instruction now i realize that there has been no court that has reversed on that basis and the government is the one that found one case in iowa state appellate decision in which the court urged this you know trial courts to give this instruction but found it was harmless error in that particular case but maybe just maybe this is an instruction whose time has come after this trial the western district of washington developed a video which is on the court's website and which they show to all prospective jurors unless there's some objection for a particular case that is you know would be too inflammatory or something but that video is you know the chief judge the u s attorney and the head of the a u yes yes that and see only in all of this is moving in that direction but that doesn't mean that it's not it's still not discretionary as to whether or not to give it be given this well i think ordinarily guess it would be a discretion and we could say that it was an abuse of discretion in this particular case and why is that why first of all we do have a defendant a black defendant who is accused of selling crack cocaine from a hamburger stand south central los angeles so we have you know hidden implicit biases all of it and the government also benefits from instruction like this because many of the government's witnesses are minorities hard to believe and so i don't see how the government loses in a case like this but in particular we have the fact that the evidence in this particular case is basically dependent largely on the informant the videos don't show anything the government agency admitted that they didn't do the most thorough pat down before the went in to do the buy and the jury asked to rehear the tapes and the videos over and over and over again so it would seem this is the kind of thing too when we talk about abuse of discretion this is a very difficult type of instruction to show error it's almost a structural error which has remind me please what precisely the district judge did instruct the jury with respect to not being influenced by a person's race color religion national ancestry what exactly to the district judge say the district judge and he gave that instruction at the beginning of the trial and also at the end white why does not cover it it doesn't cover it because what we are talking about here are the unconscious biases that all of us may not even have confronted and and that is what is all of the new you know all of the so is this your argument that although the district judge both from the beginning of the  don't be influenced by any types of prejudices biases sympathies like that what the judge should have done it was error not to have done is and by the way jury let me also tell you you may not know but some people have many of us have implicit biases here's what an implicit bias is don't let that affect you either i believe that's your position yes that is my thing and it was required in this case i guess we have  true and there hasn't really been any you know uproar over the fact that it's not true that we have hidden or unconscious biases and i think one of the california state civil jury instructions now say you may have biases that you are not aware of and so i think it's that we have explicit biases and we have in place that looks like somebody might be sitting on a jury and think oh my committee were to put out a model implicit bias instruction of the light of the sort that you're seeing with the comment that this is discretionary for the court for the for the district judge but if you want to give one here's a model for your consideration if that were to be the ninth circuit model instruction and if we had a criminal case so involving a racial minority if the defendant and the judge didn't give it would you be pointing to the existence of that model structure and evidence for why there was reversible error absolutely i think there should be doesn't that push us towards the problem of the we're not likely to get such a model instruction that's up to the judge's discretion that we can then see how things develop you want to get us there right now right i think you know but i would say that there are many model ninth circuit instructions and just because there is a model ninth circuit it doesn't mean that in every single case it should be given because it has to apply to the particular facts of the case that's right so there's some racial minority of the your theory here is that the jury is partial unless is you have a due process theory is that your the legal underpinning of your argument is that without this huge without this problem search or bias you don't have that in this case you know that's a totally separate issue obviously but what we do have is and i think it goes back to the circumstances of this case i mean who the defendant was what he was charged with you know in fact what is it the overwhelming majority of people charged with selling crack cocaine are black defendants this took place in the south central yeah i mean ask you this was this is this something that can be argued  you you know it could be but without an instruction that tells you you know hey we all have unconscious biases there's nothing right or wrong about that but we need to confront them so that in closing argument it may well come sort of out of left field but what if there was an expert witness would a defendant be allowed to present an expert witness in a case like this who could tell the jury all about implicit biases and if so that wasn't offered here right now there was not an offer for that in you know the expert witness and say this is a thing as an expert witness i mean much more powerful and much more objectionable by the government then benign jury instruction like this would be the objection well i mean i think it's happens a lot i mean the the the objection is that it's over the top it's overly prejudicial or you know there may even be an objection that it's the experts you know relying on faulty data i mean there's all kinds of objections that you can have to that you know you wanted to save a little at a time ok thank you very much is constitutionally required based on nothing more than the fact that the defendant was african american and whether it was abuse of discretion for the court not to assist on it i will address that in your honour's but i do want to first turn to what i believe is not at issue in this appeal or whether implicit biases exist and whether or how to deal with them one would have to be almost blinded not to recognize that i and that they can have effects on people including potentially members of the jury we all have biases of one kind or another some significance less significant so would you advise the ninth circuit jury instructions committee t very complex issue your honor and it is one that certainly is where the worthy of further consideration it's an issue that should draw upon a number of perspectives there are a lot of stakeholders there are all also people who have  any even without a jury instruction i know a lot of trial judges do during the regular process discuss the issue of by some prejudices and emphasize that look sometimes it can be subconscious bias you need to be aware that you need to set that outside the courthouse door you know different judges say differently this particular judge do that during the jury selection process i don't believe he went to quite that extent but as the court noted during the board maybe before the open and at the close of evidence the court did discuss what the jury should and should not consider and then during void year specifically ask the questions that the defendant requested which were questions designed to suss out whether there were any racial biases whether the jury had any feelings about what a drug dealer looked like and i understand that the argument is that these are implicit biases that we may not be aware of but that also presumes that merely saying oh you haven't has a bias these means that prove the problem is solved i think it's much more complex issue because we may not be aware of our implicit biases do you think it would be appropriate for a criminal defend an appropriate case to call an expert witness to tell the jury about implicit biases you know your honor that's a hypothetical i have not given a lot of thought to i could see some objections to it i could also understand why defend might want to to sentence was fifteen years for stare what was the discussion at sentencing about that surely your honor i think that there was a substantial amount of discussion about that at sentencing both by the parties and by the judge who indicated that he felt like the defendant had good qualities but also was a serial drug dealer a recidivist and that he had not learned his lesson or so that there was an inclination to follow to follow the sentence the defense is looking at three sixty to life he was looking at three sixty life and we did our government recommend government i believe recommended seventeen years so my math not great i don't know what twelve times seventeen is but he ended up getting two years less than that and the defense was recommending the mandatory minimum itself which was ten years ok and so just to close at that point believe that the court did do weighing of all the factors required determined particularly based on the risk of recidivism that that that the defendant was was good for those fifteen years he was selling cocaine up until the time of the re and fifteen which was even three years after his sales to the confidential informant so there were a lot of factors that weighed in favor of a lengthy sentence i don't want to suggest that he should have gotten that he's lucky to have only gotten fifteen years but it was half of the guidelines range neurons just to go back to the very briefly to the abuse of discretion argument don't take a more time than the necessary i do think it is important to recognize three points obviously the court is aware of what the defendant submitted to to the to the district court what he didn't indicate however what the defense commission didn't indicate was that the that the juror has juries had any implicit bias that were relevant to this case  not be addressed by the jury instruction and the board your conducted by the district court based on all of these factors the lack of evidence or information presented to presented to the district court and the fact that this simply is  social science research that was before the district court or is before this court certainly would urge the court to continue to consider as the western district of washington has done implicit bias instructions a believe that would be appropriate but it would not be appropriate for this court to use this appeal an imperfect vehicle to legislate that and implicit biases instruction is required in all cases based on these factual circumstances unless the court is any furthe questions i'll submit thank you thank you just briefly regarding the word year yes the judge did ask you know people have any racial biases of course nobody said nobody raised their hand and i think that yeah the united states supreme court also subsequent to the trial set in is that pena roderick colorado versus paying about vegas that asking those kinds of questions during voir dire can really backfire and make things a lot worse and nobody wants to be outed you know that's that's the whole thing so an instruction asking somebody to look inward in themself as he's deliberating i think is the appropriate way to handle that without really solve the problem that it's about let's let's find out you and i i just have one last thing about the sentence yes we asked for ten year mandatory minimum mr so here is there's no doubt that he has you know been convicted of selling drugs over and over again but minute amounts of drugs he's not a major trafficker he is a drug addict and that's why the ten year sentence was more appropriate thank you thank you the matter submit