evidence is so critical to the defense as to render the trial fundamentally unfair, we would have little difficulty concluding on the facts before us that this is not such a case. Id. at 1300. At the hearing on Gutierrez’s motion to dismiss, the district court noted: [Gutierrez] is still free to argue these claims to the jury, which in fact, in my view, provides him with an avenue that he might not have had if the evidence had been preserved. Similarly, the defendant’s expert, if you have one, would still be able to provide testimony about how the firearm could have been expelled from the vehicle after the crash, even without knowing the exact speed and impact that may or may not have been shown by the vehicle’s black box or sensors. (R. Vol. 3 at 220-21.); see Hood, 615 F.3d at 1300 (<HOLDING>). It is highly unlikely Gutierrez’s defense
holding that unpleaded affirmative defense was properly considered by the district court where plaintiff had notice of the defense and an opportunity to respond holding that it is not reversible error to reject a defendants proposed instruction on his theory of the ease if other instructions adequately cover the defense theory internal quotation marks omitted holding hood had ample opportunity to advance his defense theory before the jury in other ways holding that the jury need not agree on the theory supporting the conviction if there is sufficient evidence to support either theory holding that the district court did not err in continuing the trial without defendant when the trial had commenced in defendants presence he vigorously expressed his desire to be absent he was given ample opportunity to change his mind despite the disturbance he had created he had competent counsel and he knew of his right to be present