the government is absolutely clear regarding its position on the jury instructions in this case as it states on page fifty five of the appleby's brief there simply is no reason why a defendant cannot agree to act in a wanton disregard of the consequences to human life that is conspiracy to murder and the instructions properly reflected the law the government is wrong in agreement to commit an act with a c disregard of the consequences to human life is not an agreement to act that is not going to greenock to commit an act that would constitute the offense of murder if committed within the territorial jurisdiction of the united states because such an act not resulting in death or not accompanied by an intent to kill does not constitute the offense of murder may please the court counsel my name is bruce nestor it's my honor to stand before you today and opening remarks a starting point for this position is the statute itself the statute requires an agreement to commit an act that would constitute the offense of murder acting in cow us and wanton disregard by itself without the intent to kill or without result in death is simply not such an act the government is unable to point to a single case where the subs and to offense of murder is fulfilled by an act that merely involves callous and wan there is no there's no no reckless act that causes a homicide that can properly be convicted of second degree murder no that's your honor if if that's what i heard you say then i wasn't clear if a person with callous and wanton disregard any death results that is a subs into the fence of second degree murder but when we turn that into a conspiracy instruction the government seeks to eliminate the requirement of either an intent to kill or a death and so if someone who merely conspires to act in a callous and wanton disregard of human life has not by that alone committed an act which would constitute the offense of murder the offense of second degree murder requires a result death for that act to constitute murder saying that a murder when they actually had to occur you know that i'm saying that you can't conspire to commit second degree murder because obviously you don't need to achieve the objective of the conspiracy to be guilty of conspiracy it's why you can't conspire to commit second degree murder because merely conspiring to commit a callous and act is not an act that constitutes murder under the statute  or to act recklessly absolutely i was thinking of he's not so common anymore maybe it still is teenage drag racing where the years and if it's done if there is a conspiracy to drive with total reckless disregard of everything anything and everything and it's on a rural road and a pedestrian or a passer by or another automobile is in a crash and someone  which was foreseeable for the recklessness of conspiracy is there a difference between doing it on a rural road and doing it in an urban neighborhood from the standpoint of your argument that there can't be a conspiracy to commit second degree murder teams to me or reckless murder seems to me there is a difference well the issue i don't think is before this court as to whether it's possible to conspire to second degree murder if you conspire to commit element was that the government had to prove the death resulted the government's position is that mere agreement to commit the an act with callous and wanton disregard is enough and it appears in it sandoval letter the twenty eight jail letter recently submitted the government submits for the first time that somehow eighteen us c nine fifty six a has a d is a different conspiracy than what we're accustomed to under eighteen u s c three seventy one in the very last paragraph they seem to argue that nine fifty six a only focuses on conduct in the result doesn't matter now that argument is not raised in their briefs and i don't see anything in the statute in the statute that would indicate that moreover the use of congress's use of the word act that what you conspired to do is to commit an act that must constitute murder clearly implies that the complete act by itself must be sufficient to constitute murder and that requires the intent to kill and that's really what is set forth by the north dakota supreme court in the border decision where they analyze whether it's possible to conspire to commit extreme indifference to murder now the  jury doesn't care about three seventy one versus nine fifty six say the jury gets its instructions correct and what the government is trying to do is to justify the flawed instructions that given on the basis that somehow this was this isn't a conspiracy with the same traditional elements of a three seventy one and that lead into the government's harmless error argument well there was so much murder that was almost certain to result and did result in the in the conflicts that were supported certainly that the government did a fine job proving that isis like many organisations in gaijin armed combat kills people what they didn't prove and they didn't have to prove was that mr di would have a specific or specific intent to kill or an agreement with other implied when you when you join and fight with a paramilitary or terrorist group that's known to do that not net not necessarily and that's really a transfer of associational guilt onto the individual and the  it if the the that certainly could be an argument made by the government to a properly instructed jury but the jury wasn't properly instructed in this matter and instead was encouraged to convict based on association because i mean in that courtroom three weeks of listening and watching those videos association with i still was a callous and wanton disregard for human life but that wasn't tied to proof of an agreement to kill or an intent to kill on behalf of any of the defendants and it's simply to logically inconsistent that you can that you can agree to commit a risk that you can agree to conspire to commit murder without intending to commit murder and that's again that's what the border decision analyzes and that's what cha grow in crawford circuit court of appeals they really get around this issue because the jury instructions in the charge in the indictment in those three cases was so complete requiring in agreement with that specific intent to kill that's not what we had in this case you know i appreciate that but but it seems to fly in the face that it's possible to get convicted of attempted second degree murder without a killing and you can fire a fire into a crowded room would someone grievously and be charged with attempted second degree murder right i think that's an issue and i don't think that's a decided issue in all jurisdiction i mean and i've never had that specific case on the federal bench and i did on the state bench and the conviction late in that case under north dakota law didn't require killing in seoul the question is what's the what's what's so magical about the idea that you have to have a specific intent to kill someone as opposed to just to engage in an act which might logically result in the death of someone because congress said in the statue the a thank you may please the court my name is jordan kushner and i represent mohamed fara i'm going to briefly touch on the arguments about the jury instructions as they apply to my client and then i'm planing to discuss the issue of the failure to replace mr ferrars counsel after mr farrer discussed his lack of complete lack of communication with counsel and access to the evidence in his case so that the court asked about harmless error and i think it's indicative of the facts on my client's case are that he hear the acts that the government came up with that they said concluded that he was part of a conspiracy to commit murder and that's that he  he watched videos of isis committing killings and at some point came up with a phrase from the koran which he said justified what happened in another time he left at the video and generally expressed his desire to join isis these this is not anything like overwhelming give evidence of a conspiracy to commit murder the jury nice decide whether that sufficient and based on the instructions and allow the jury to conclude that merely a desire to or to join in order ization that commits murder would be sufficient to make him guilty of conspiracy to commit murder which is almost duplicative of the of under the lesser offense of material support conspiracy to materially support a terrorist organization which isn't challenged on appeal the jury's intel to decide whether mr fara by wanting to join this group at a specific inten engage in murder the government's own expert conceded that a lot of people who belong to be part of these organised part of isis don't engage in combat they need another assignment and whether mr far ahead a specific intent to kill was something that the jury needed to decide and based on these instructions they didn't have to decide that now i want to move into the issue about mr farmer's issues with coun well they weren't his issues he had no control over them but you know about a month before trial it came out that a paralegal working for one of his lead counsel was accused of making statements jihad that influence witnesses and witness in the case and that he had had contact with with family of other of called defendants and encourage them not to plead guilty based on that  a farmer's lead counsel withdrew from representation a month before trial was scheduled and he was left with his co counsel who had not been primarily it wasn't clear that he a prime it was really on top of all the evidence wasn't clear how much he had prepared the district court expressed grave reservations at such a late stage whether he would be ready on his own to just complete to take over the case  government's brief had accurate at that at that time mr mohamed said that he was prepared to go forward and he also said he thought he would need the help of another counsel and he wanted to get someone else appointed because he thought it was too much to handle his own which is something he never followed up on and mr farrer who said did say at that point he had complete confidence in his counsel he did subsequently write a letter to the judge where or he would instructed his he instructed his counsel that he wanted him off the case and his counsel and made a motion to get off the case what mr farrer could not have predicted was that the his counsel was never going to go over the evidence with him and he didn't see the evidence in his case prior to trial and didn't have any substantive discussions with his counsel about trier trial preparation mr ferrars testimony years statements where that is counsel only came and tried to encourage him to plead guilty and discussed issues about trying to get compensated for his work on the case and the main area that the district court made here was the failure to conduct a thorough inquiry the case of united states vers jones in two thousand and eleven as the operative language that when someone raises substantial issues about counsel the district court has an obligation to conduct a thorough inquiry and what happened here was judge davis was anxious to proceed due to the trial and did not flush out the facts you had conquered conflicting claims here mister muhammad the counsel at the time claimed that he had done over the case mr farrer but didn't provide details to back it up mr farrer stated no i haven't seen the evidence in my case i haven't had any substantive discussions with my turn he came to me with me wants to pressure me to plead guilty and say have him help them you know make i believe that i think it was i think it's ambiguous mr for one point said once i think mr mohammad said that there were several phone calls and it was never flat i don't think was ever really fleshed out how many times he met in so his attorney you know should have had a record that he could or should i believe that oh his attorney howard before trials well is his attorney should have a record that he should be able to look at his records and say ok i met with him on april first twenty second attorney was supporting the request right while he you know he was supporting it he was not supporting it and that's what me did make the motion to be removed from the case he didn't he did claim that he had the meeting that he had communication with mr farrer but did not provide details and that's where the district court fell short is that the district court didn't flush out the details that had a pre determined i doing while asking f t for how long well he i think he first he needed to get specific you know what dates did you meet with mr fara how long is that going to take i think morning of trial i think if the judge asked me tell me what dates you met of the conversations in each meeting i know finke if it was prepared counsel i don't think it's something that would have taken more than a few minutes to figure out and they are understand that it was on the eve of trial the motion was made i think about a little bit less than a week before trial judge davis made a decision even though often he held hearings on short notice he made the decision here not to take up the matter just until just before trial which i think is indicative of that he never really intended to take the motion seriously because if he was going to take the substantial issue seriously he would have would have had a hearing before trial so that if there were prophylactic measures made it would be some kind of events notice no doubt it would be you know there's a potential here for inconvenience but with that's being balanced here against the fundamental right sixth amendment right to competent counsel that mr fur ahead and that was not was not honored in this case and that overrides the desire to expeditiously whole trial in the case that you're taking a matter of years to try anyway and i reserve the rest of my time for buttle thank you thank you please the court my name is glenn brooder and i represent god omar i am going to confine my arguments this morning to the issue of the challenge to jury instruction but certainly the court has questions about the other issues that i've raised in my brief i'll be happy to answer those questions together with this court color palettes mr omar challenges the jury instruction with respect to the elements under section nine fifty six a it's our position that the district court essentially allowed the government to conflate two distinct statutes and the use of evidence of appellants wish to support isis which is deemed a violation of e the defense position is that that instruction is inherently flawed because it confuses the object and the means of a conspiracy and by that let's look at to begin with what exactly section nine fifty six criminalizes it criminalizes a conspiracy to commit any place outside the united states and act which would constitute the offense of murder and then we turned eighteen u s c section eleven eleven which defines what a murder is in the very first sentence of that statute says murder is the unlawful killing of a human being with malice aforethought in other words the object of any conspiracy that's made criminal under section nine fifty six needs to be a killing it can't be a conspiracy to act with callous disregard to human life the conspiracy has to be one to commit a killing unfortunately the challenge instructions submitted by the district court judge essentially ignored the signposts and instructed the jury that if the appellant's acted with callous disregard for human life they could be convicted of murder on that and that alone even if no death occurred and without reference to any killing being the object of the conspiracy in other words that instruction not only perverted section nine fifty six but conflated it entirely with section twenty three thirty nine  instruct the jury differently than judge davis did and got affirmed well actually your honor i guess i disagree to the extent that i think shawn was helpful in at least a couple of her staff flags the issue no question about it but i'm asking is any court ever excepted your argument that that since the statute in corporate in core invites the reference to the definition of federal definition of instruction for the crime of murder under that federal statute was given here and you're saying well that doesn't that doesn't work for nine fifty six a because of the conspiracy overriding aspect and i agree that creates definitely an issue but i don't i don't it doesn't carry me where you're arguing frankly well i think judge the the court made it clear that in order to sustain a conviction the government needed to show that ms entered the conspiracy with the objective of killing the judge that that was in fact the the the core requirement for any conspiracy to commit murder there is also a district court case which i cited in my reply brief but i have  district court case the staffer case the court made a very clear distinction and holder essentially does the same thing that you can conspire to provide material assistance to a foreign terrorist organization without necessarily conspiring to commit murder the government's position in this case flips that on its head and i'll give the government's attorneys credit for candor they essentially say that that if you offer to join isis you are essentially conspiring to commit murder simply because of the dangerous propensities of that organization well if that's the case well your honor it's not just on the facts of this case if that's their us if that's their analysis then it seems to apply willingly and you've got the introductory the instruction begins with the elements of nine fifty six which include murder and then the court goes on to give the federal definition the federal instruction the improved instruction for however the concept of murder is is you know exists under federal law but you put it all together and you've got willing we malice maliciously conspiring to commit an act of murder i just think you are you are quite properly as an advocate you're taking the instruction and expanding it way beyond the way a jury is likely to have understood it in the context of this trial and you think your honor i'm going to use up all my rebuttal time answering this but i'm going to because i think it's an important issue willingly does nothing to move this matter forward because after that the judge says or using the disjunctive and he talks about a callous and disregard and other words he tells the jury jury it can be one or the other it can be willingly or it can merely be callous disregard for human life so the word willingly in that instruction gives the jury nothing and doesn't cure the problem and at this point i'm not going to have a rebuttal thank you it please the court good morning your honor me please the court and counsel my name is john daugherty i'm an assistant u s attorney here in minnesota it was my privilege to represent the united states one of the prosecutors who represented the united states at the trial of this case and it's my privilege to be here this morning on appeal representing the united states i should mention i'm joined of counsel table this morning by my colleagues assistant u s attorney andrew winter who is also on the brief and on the trial team you will to the issues that were raised by the defense the jury instruction issue and the issue of the withdrawal of counsel attempted withdrawal of counsel on the morning of trial just before jury selection was going to begin defendant claim really comes in two parts that it's both logically and legally impossible to conspire to commit second degree murder if the elements of second degree murder of malice aforethought  takes the form of and to quote the jury instruction exactly and intent willfully to act in callous and wanton disregard of the consequences to human life as judge logan was  asking one of the defense attorneys there is no federal appellate court that has ever held that this is legally impossible and i will respectfully submit that the defendants this morning and in their briefs have given this court nor good reason why this court should be the first to do so i will also address defendant mohamad far as claim that the district court under talked to short an inquiry into his counsel's motion to withdraw and the essence of my argument at that point will be number one that that was within well within the discretion of the trial court particularly given the timing but second of all that mr fara ha not identified with specificity any shortcomings in his trial counsel's performance or any prejudice that he suffered as a result of the denial of his counsel's motion beginning your honor with the mental state argument the defendants all claim in their briefs that conspiracy to commit second degree murder is not a crime because in the words of defendant brief a person cannot specifically intend to commit a reckless killing the argument misread the law and it ignores the facts in this case jury instructions passed muster if taken as a whole and viewed in light of the evidence in the  law they fairly and adequately submitted the issues in the case of the jury and the any alleged shortcoming in jury instructions is reviewed by this court for an abuse of discretion and legal conclusions in the jury instructions are reviewed the north pole recklessness although used frequently by the defendants both in their briefs and in oral argument this morning does not occur anywhere within the text of either nine fifty six say or eleven eleven a it also is not on the jury instruction the judge davis gave which is the pattern jury instruction defining the federal crime of murder which this court has approved the giving of many times the elements of count one as the jury was instructed were an agreement to commit an act outside the united states that would constitute the act of murder if committed inside the united states the defendant knowingly and willfully becoming a member of that conspiracy the defendant being within the jurisdiction of the united states of the time he conspired and at least one offered act committed by at least one conspirator the mental state of murder is malice aforethought that is not recklessness malice of forethought is intent and that intent can be established in one of forethought can be proven by the prosecution by an intent again an intentional act to willfully act in callous and wanton disregard of the consequences to human life so either way that the element of malice of forethought is proven it requires intent and any claim that second degree murder can be committed recklessly is not an accurate statement of the federal law of murder my problem with the instruction as you word it is  doesn't allow the argument that in this environment simply conspiring to join or support isis satisfies this definition i know there are not only does there not have to be a killing but your act as an after be linked to efforts to kill the jury in this case your honor was carefully instructed by judge davis that they had to consider each count of the indictment e very ascough right this is this is the most serious count this is the top count in the indictment the the conflation argument as i shorthand call it certainly there are ways that one can provide material support to a terrorist organization which accompanied with an intent either to kill or to act in wanton and or callous and wanton disregard of the consequences to human life would constitute the crime of just from that proof no short answer you there in this instruction that differentiates the conduct of these defendants from i prefer article person in my church no i understand and instruction well the jury in this case as i say was separately instructed on both and on the the murder instruction they were told that they had to find either an specific intent to kill or an intent to act willfully and callous and want to disregard and that second part one can provide material support to a terrorist organisation not having it be an wanton and call disregard one can provide money one can provide communications facilities one can provide transportation one can provide all sorts of things the defendants in this case were charged with conspiring to provide themselves personnel s going over and cooking for the fighters would that qualify that would not qualify unless it was accompanied by a specific intent to kill with joining he conspiracy by playing a support role in a many many jurors would read it that way in this in these times the second part of the instruction tells the jury only that to commit to this is one of the ways they can commit the crime of murder they're charged with conspiring to commit murder and the district court judge quite properly instructed them here's what murder is under federal law and if it were death or killing is not in that second part driving on the highways these days half the populace seems guilty of a bunch of the time chilling is in the second part because it talks about consequences to human life  you know any kind of injury with respect sir no i don't think that it could mean that because it talks about human life it doesn't talk about injury it doesn't talk about bodily harm it talks about life and that to me saying that to me is life and death and  disregard of the consequences to human life and the fact that it only resulted in serious injury this time you're not left at your last guilty if i may have two responses so that first of all are you know obviously no conspiracy requires for liability to attach that the crime itself be completed but over and above that there was here that hole crossed the spectrum in  way for the most part in and certainly in this case and also in this case there was evidence of killing having resulted there were other individuals who had gone to syria  and there was evidence at trial that both of them had been killed fighting for eisel outside a syrian town called ko bani it's in the haifa i don't have the exact transcript site because i'm responding to a question but it's in the high six hundreds that there were there were people who were killed and who lost their lives as a result of being associated conspiring with this group to travel to syria and fight for eisel so if it's a question i don't think that evidence of actual death is required but if it is required there what there is evidence in the record of actual death resulting in this case of people who are example that i can i i mean i drive to i take your point about the way people drive these days but i think more i think of the example of a group of people conspiring to hand partially loaded revolvers russian roulette if you will to a group of people and having them having them pull the trigger polling to trigger themselves and then it becomes a fact weston is one bullet out of six chambers enough to need to do you need three but certainly everyone would say that someone who does that if death results is guilty of murder under the second prong of the malice aforethought instruction and in this case yes traveling to syria and fighting for ice all in the current state of affairs there is definitely overlap in the proof between the two crimes than that of why there can be conspiracy to commit second degree murder but in those in those cases hypothetically you're going to have the six people who sat around with a revolver and pulled the trigger as many times it took as a new one on the back here we have air we have a much more remote consider it an enemy i agree that there is some remoteness and i not to transition to abruptly but i think that that is that is the reason that the defendant's claims of either self defense are imperfect self defense or fail however it's also worth pointing out i believe that the reason that there was some distance yet to travel for these defendants before they got to syria and could carry out their plans was the alert work of law enforcement which multiple times stopped members of this conspiracy at airports here and in new york who are on their way to syria to join and fight for myself and to carry out this conspiracy as i mentioned a few minutes ago they didn't stop all of them some of them got overseas of that on this on this point the jury was told that the charge was conspiracy to murder they were then told here's what murder is under federal law it was black letter law from a jury instruction that as i say is no argument that this does not properly define the crime of murder of federal law the jury was also instructed on material support the jury was instructed to be careful and consider each count separately i believe it worth pointing out in this context that the jury did return one not guilty verdict in this case so they obviously i believe followed that instruction of separate consideration of each and every met their own proposed instruction they did your honor what was they did from memory i believe that the defense instructions sought a specific intent to kill i'm sorry i don't i'm not calling them to mind on the spot here but they are alice disregard portion is that they are in the record your honor and i would feel more comfortable referring you to the record than me trying to extend pariahs about it because i'll probably get it wrong so if you think you i don't want to spend a lot of time on that but the gov but the government does the government think there's a combatant immunity defense to nine fifty six say yes but not on the facts of this case  combatants yes but there would have to be an instruction of course from the district court judge about the four criteria there laid out there would try to write the instruction i haven't and i'm not eager to try but  it seems to me that's very very troublesome he is if you go if you go into that and in some situations i mean take take a recent rebellion that resulted in south sudan before that there was violence but there were combatants on both sides of the ass with whom were considered invaders others were invaded so an american citizen who conspired to join either side of that without a band with that of that they have been entitled to a combatant immunity defense i am not at all familiar with the with the situation in south sudan but i would say who thinks on the saudi arabian forces fighting them this week i would say your honor that like any affirmative defense it's on the defense to come forward with a sufficient quantum of evidence to put the issue in play once  has done that then it's then it's a part of the trial but it's interesting in this case that the defense says as to the jury instruction that there their main argument is there was a lack of a specific intent to kill in the instructions and then raise a fine affirmative defense that would have to mean i'm not i'm not sure your brief solve that problem but we'll move on ok i would like to just briefly finish up on their point your honor which is that the defense by criticizing the jury instruction raised at least the intimation that if the government had to prove a specific intent to kill there might not have been one and yet at the same time argues for an affirmative defense that begins with i mean if they're in combat they are affirmatively specifically intending to kill the enemy and that's the only contradiction i would not just look at this whole competent immunity defense of in some cases are easy you know you join the  canadian air force before the united states becomes involved in the second world war you're part of a military organization engaged in a war that's declared it becomes a much narrower question when all of a sudden what you've got is some sort of paramilitary organization engaged in some sort of action against some state actors and also against other you know paramilitary organizations do you have any idea of what quantum of evidence would be necessary in order to immunity i mean we catalog in our brief the atrocities that are committed by eisel they are not by any stretch of the imagination a properly constituted professional fighting force they are a terrorist organization and by joining them you prosecutable under nine fifty six a for that they were prosecuted i don't read i don't know what counts they were prosecuted on but they were prosecuted and that is one of the criteria that the geneva conventions stamp lish which is that your army discipline you if you violate the laws and customs of war which i simply does not do the the government any error in the jury instructions and i don't for a moment concede that there was any but if there was any error in the jury instructions it was harmless beyond reasonable doubt because as i said at the outset the record in this case is replete with evidence of specific intent to kill this defendant  in the car going to san diego saying being caught on tape saying the first thing he's going to do when he gets to syria is boron ek forty seven he's going to shoot the lights out of that thing he's going to quote unquote call a number of shia muslims he is going to become a martyr even before he reaches training camp defendant goulet all maher watches a video of people shooting at tanks with rocket propelled grenades and says that he wants to be just like the man in that video the tank hunter he talks about wanting to kill turkish security officials we refers to as quote freaking pigs unquote he thought too that he executions recorded in government exhibit one seventy eight on the prophetic methodology the there is absolutely no evidence of these defendants anywhere in the record of this case even a scrap of evidence that these defend were going to syria to do anything but kill for eisel just as their companions who did make it out of the country apparently wound up doing specifics any examples of how he suffered prejudice as a result of that he simply asserts without citation to the record without a do so in any examples and this is a quote from his brief quote cross examination of government witnesses that often did more to help the government than mr farrer mr farrer not presenting evidence on his own behalf and his not being able to make an informed decision whether or not to testify one month before the motion to withdraw judge davis even gauged in a lengthy colloquy with both counsel and client about this about going forward after mr one neary had withdrawn his counsel at that time pointed out to the record is three or four times they're also in a normal number of telephone calls and i think very importantly judge davis told defendant muhammad fara if there are any problems call me write me get in touch with me because and i quote we've got to make sure you are adequately represented and then on the morning of trial counsel wants to withdraw and mr mohammed fara the defendant has not in any way been in touch with judge davis to let judge davis know that there's any dissatisfaction before coming into court that morning there was no irreconcilable conflict here there was a dispute over trial strategy whether to plead guilty or whether to go to trial apparently mohamed fara won that argument because he had in fact did not plead guilty there was no complete breakdown in communications because there were multiple meetings during that month as well as telephone calls as to access to discovery judge davis had ordered and the government have complied with having a computer and a hard drive in the jails where the defendants were confined so that the defendants could go and look at the evidence at any time that they please they were not dependent upon their lawyers bringing the evidence to the jails for them to look  t there was therefore absolutely no abuse of discretion on these facts that would cause this court to second guess judge davis's decision not to allow withdrawal of counsel literally while the jury was down the hall the jury panel was down the hall waiting to be brought into the courtroom your honor as i have about three minutes left i have  i'm happy to answer any further questions that the court might have in the absence of any questions however i'll conclude this time thank you very much i know the fans how far have a rebuttal time you can you can pull it or you can take it individually i leave that to you i'll take my time now your honor to briefly address the questions that you raised judge logan regarding the combatant immunity instruction good seek an imperfect self defense instruction which was perfectly appropriate when you're charged with a thought crime what he asked for is he asked for the question to be submitted to the jury as to whether he had a belief that he would be a lawful combatant and not be committing unlawful killing he submit insufficient evidence to support the giving of that instruction in this trial that it struck that evidence came from the government's own witnesses who testified they used to be coconspirators before they became informants that they thought that they were going to go and serve as police that they believe that the allegations of atrocities committed by isis for fabrications of the western media and the government's own experts said isis has a sophisticated propaganda machine that portrays itself as a government in a legitimate army we're not saying any of that was true but we're saying that was an actual even and reasonable belief that mr dowd could have had based on the evidence the question should have been submitted to the jury it was not in response to your question judge grander than mr dow did submit a proposed instruction all he asked the court to do was do instruct the jury that conspiracy to commit murder requires proof that two or more persons reached an agreement or came to an understanding to unlawfully and with malice aforethought kill another person now the court instead used the word murder and that's really a crucial distinction murder is a legal term that encompasses the intent to kill or a killing that results from callous and wanton disregard that's not appropriate in conspiracy this instruction was appropriate because it substituted the factual word of killing for the legal term of murder which encompasses both an intent killing and killing that results from callous and wanton disregard clearly the jury could have been confused by these instructions the government's position on page fifty five of its brief is that mere agreement to commit an act that demonstrates a callous and wanton disregard for human life was sufficient for a conviction if the government believes that clearly the jury couldn't believe that meaning they did not have to find an intent to kill they did not have to find an agreement to kill both charger in crofter court of appeals cases that on the  first surface appear to contradict our position but take the position that that agreement to kill is a necessary part of a conspiracy to commit murder mr di would be sitting in prison for thirty years because of the erroneous jury reversed in response to the government's claim that there was harmless error because there is overwhelming evidence of intent to kill only evidence about mr fars response to isis was his approvingly watching isis propaganda videos coming up with a qur'anic explanation to justify a particular act and laughing in another video the jury needs to decide whether that sufficient to conclude that he actually intended to commit murder that's a jury question and the jury wasn't able to answer that question based on the instructions which permitted them to infer just the mere act of deciding to join an organization with sufficient  motion to withdraw from counsel the government raises for the first time that mr farrer didn't demonstrate prejudice from the dial the motion to withdraw it's inappropriate to raise it at this time had they raised it in their brief i would have extensively brief that question in my reply given specific examples of how opposing mr forrest trial counsel was unprepared for trial how his cross examination questions did more to help the government than they did to help mr farrer about how mr farrer could have testified and help himself if he had adequate consultation with counsel and subsequently it could have supplemented that with information about disbarment proceedings that are currently pending against farmer's trial counsel before the minnesota supreme court for multiple acts of misconduct in terms of representation of his clients the motion to withdraw was submitted by his count so four days before trial wasn't submitted on the eve of trial judge davis decided to hold the hearing on the eve of trial and mr foreign couldn't help the fact that he'd found out that his client was inadequate right before trial because his counsel's only representing him alone for a month that was the only time in so was it within that time period that mr farrer found that he did not have communication with his counsel we don't know how many times it communicated that could have been confirmed with his counsel records or  records that show meetings or phone calls would not have taken long for the district court to find that information and that's where the district court filled by failing to conduct a thorough inquiry to determine if his counsel is really prepared to represent mr farrah and for that mr farrer deserves a new trial with counsel that's adequately prepared and communicates with him about the trial decisions thank you  thank you your honor it gives me a chance to say the one thing i want to say which is the government takes the position that what's the big deal here this is essentially a boiler plate circuit instruction as a dress and my reply brief it's not quite that simple first of all well it is based on a model it's circuit jury instruction the comments to that jury instruction make it very clear that it's to be used in a murder case where the accused is a principal in this case it's a conspiracy it's not intended for that particular situation the note itself says it needs to be modified if it's something other than a principal in johnson this court approved it that instruction but that was a situation where johnson was acting as a principal not as a conspirator so really the government's reliance on the fact that it was a boilerplate instruction its prior approvals by the court are all meaningless in the context of this conspiracy case and the draft recognized that it might need to be modified thank you thank you thank all of all counsel for a thoroughly prepared and well argued the case cases they are three separate cases although they' been heard together this morning they're important and we will take them under advisement advisement and to our best with the