Beware of Oral Argument Concessions

U.S. v. Gonzales, 2012 WL 3291862 (8/14/12) (Okl.) (unpub'd) - This case points out the need to be careful what you say at oral argument. The 10th supports its conclusion the defendant did not preserve the argument she was making on appeal by quoting extensively from the oral argument where counsel seemed to concede a lack of preservation. The 10th held it was not enough for trial counsel to have requested a fleeting-possession jury instruction to preserve the argument that the instruction was necessary to support a coercion defense. Trial counsel had argued to the trial court that the instruction was necessary for other reasons. Any error was not plain because the 10th has explored but never adopted the notion of a fleeting-possession defense and no case law supported the defendant's appellate argument. And it was not plainly wrong for the d. ct. to conclude the brief duration of the defendant's possession of the gun [the defendant's boyfriend had her pose for a photo holding his sawed-off shotgun] was more properly a subject of argument by counsel rather than of a separate jury instruction.