remanded for a number of reasons as cited in the braves first and foremost there was an error by the trial court in failing to grant the mistrial that was requested by defendant  the conclusion of the rammer hearing as the court has no doubt read it in defendant appellant briefs there was a publication to the jury of materials that had been explicitly prohibited by emotion and women and the decision in order provided by the trial court immediately preceding the commencement of the trial the particular materials discussed the end use applications of the electronic parts at issue in the underlying trial it was determined by the trial court in response to defendant's motion at the time that the information of the end use application would be significantly prejudicial and the prejudice therefrom would significantly outweigh the any probing of interests that the parties may have in attempting to administer that evidence difficultly or would there a particular juror could particularly articulate one from the record what was troubling as i indicated in the very it is that the tenor of the hearing that  vast a number of jurors discussed having been made aware by a small group of jurors as to having read the particular information that had been precluded more particularly they had essentially read these reports that indicated that the items were of use in very sensitive military applications particularly one describing use and the u s s ronald reagan nuclear submarine you said they had read i thought there was only one juror who had who had read it and there was one juror to read it and discussed it with a small group of other jurors a small group of other jurors ha had had discussed the fact that it was that she had to read it and sensually while the larger group of jurors as a whole  head acknowledges that there was discussion that they could hear nuclear and u s s ronald reagan there were certainly so with some jurors who said they had not heard anything and they're not taking part in  right i'm my question is you're are you discussing juror fifty juror number fifty the you know we have the bois here right that took place with respect to that juror that is the juror subsequently subsequently removed by the court to a sponsor so taking taking your argument from there i'm wondering if you can articulate going particularly to the prejudice feature of this i mean when you tell us that it's that there was some knowledge about it being a nuclear submarine or a nuclear vessel and then  that the prejudice or is that the name of the vessel ronald reagan i mean i'm i'm trying to get to the heart of the prejudicial feature of the error you claim given that the were some jurors were dismissed the ones that i think you acknowledge were the most had the most to say during the year that may have led the court to dismiss them speak to the prejudice that they didn't want to think about the application for what the repercussions would be that is the exact horror that was meant to be avoided  by the court's initial decision and limit and when taken in context with the fact that the that you were sixty and the other small group of jurors who had discussed it more in depth than the group as a whole had discussed the fact that it was a nuclear powered submarine i'm sorry nuclear powered aircraft carrier is the prejudice issue and  was asked whether or not they could be fair you know the usual questions and they answered in the affirmative so where exist taking that it to into consideration what is your best argument for saying that this nevertheless was of a jury that couldn't be fairly sanctioned essentially your honor that the that the prejudice was of such a magnitude that even the court's attempts to rehabilitate that witnesses i'm sorry jurors and even the juror temp to articulate their desire to be fair and impartial cannot overcome the overwhelming amount of prejudice caused by these particular circumstances this is  in quite you know place within the trial court perspective the old adage of one cannot the bell and that's what we have here and the significance of the prejudice is self evident because the trial court it deemed that the prejudice was so great that it was going to preclude the introduction of the evidence so the law of the case itself establishes the prejudicial being that beyond which a juror would be able to rehabilitate themselves from hearing and witnessing in terms though the jurors this is judge going then the jurors hear all kinds of secret that they were on kind of a controlled west to ensure that they were from a legitimate source in the legitimate quality that y honor i'm sorry the jurors heard that all through the trial didn't they they did however the differences if i may that the majority but these were military applications  which the court was careful throughout the trial in light of its motion in limine arms our decision and i to keep somewhat vague and the fact that the jury also heard the term critical application item regularly throughout the trial in reference to the contract in any way vitiate the prejudice because these returns and discussions that were vague they were not realists and i think by all parties quite calculated in the sense that they were not necessary in order for the government to prove its case and they were kept in a simplistic form to wade any potential prejudice that may result in regard to the end use application i'm not sure what you just said but are you acknowledge in that the jurors already know that these were all military parts that your client provided and presumptively from the type of party involved they would have known more generally what the what the use on by the military acknowledging that they knew that they were military i do not believe that there would be any suggestion as to what the use was going to be for believe that what you are think is the ronald reagan aircraft carrier is how do you how do you get to the fact that there is prejudice if there's probably ten million parts on the ronald reagan aircraft carrier how do you get to prejudice just simply for the fact that some of the parts are going to be used on that ship that's thousand feet long but i think the course is what we had hoped was going to be the result in our conduct the trial however the articulation of the jurors during the me and the means is that we tried to be vague in the descriptions and not been using anything but articulating what the end use was under the order and the government had not been discussing prior to the jury deliberations  the parts were described as microprocessors and circuits there may have been some discussion that it could be used in certain applications but those were again quite vague and they were not specific as to use then how much to how much is your client prejudice from the fact that it's described as being on the ronald reagan for the very essence that some of the jurors said that they didn't want to think about what would happen if the parts fail they say they didn't want to think about it or that they knew they shouldn't think about it it was as i recall you i would know just for the record that i believe my initial time is up but and you can have your remaining time for rebuttal thank you it please the court mary beth young on behalf of the united states i'd like to begin by addressing a few of the points that were raised by mr goldsmith first that last point under discussion regarding several jurors thinking or stating that they did not want to think about the consequences if the court reviews docket number ninety seven which is the transcript that includes that  jurors fifty and eighteen expressed the sify concerns about or fears over what could happen in the event of malfunction and of course those were the two jurors who were excused so we don't think it fairly represents the record to suggest that there were several jurors who expressed that concern mr go sense also suggested that the judge's pretrial ruling that the end uses were excluded under rule four zero three substantially prejudicial in some way with law of the case or required the court to make a similar conclusion  addressing the mistrial motion that makes is not an accurate description of the long a pretrial ruling on a rule rule four zero three motion first of all is subject to change during the trial itself and it's addressing a different question legally then the court faces when it's addressed with a mistrial motion as the court as focused on the question at the time of a mistrial motion is whether there is actual prejudice demonstrated this court has been clear in cases like walker and cooper that the burden is on the defendant to show actual prejudice not just the risk of prejudice and those cases follow along the supreme court's decision and smith the phillips which stated that due process does not require a new trial every time a juror has been placed a potentially compromising situation that's exactly the point of hearing having the hearing and when the judge here conducted the hearing he was very careful and asking each juror individually what they had seen what they had heard and then getting those jurors assurance about whether they could follow the court's instructions and disregard the information that they had seen or heard the only jurors that the court had any concerns with after that colloquy workers fifty and eighteen and those jurors were replaced by alternate in addition judge  moore as i understand your opponent's oral argument he's contending that there were some other jurors who said something to the effect that they didn't want to think about the and use because it was so troubling i'm paraphrasing what i heard mr goldsmith to say could you address that point that was the point i tried to address at the outset and i don't know what to say about it other than to suggest that the court look at docket ninety seven and look at the colloquy and the only by my reading the only jurors that expressed any concern  leecher eighteen i'm sorry but eighteen was excused and fifty was excused so apart from them you're saying there was nobody who expressed that yes ma'am and indeed the other jurors the jurors who served were really unequivocal in expressing that they could follow the court's instruction that they could disregard and use and that they could serve and partially on that record w hat did the jurors who who served what did they know about the use of the parts from the testimony that was not challenged  bright the the contract documents themselves from the request for a club patients to the contracts said on their famous critical application item and the definition of that term was also admitted that's another of mr goldsmith issues but the definition of critical application item was admitted at trial and refer to it's quoted in our brief i'm not sure i have it right in front of me but referred to the sensitive applications of these products would be used for in addition these parts were on the face of the contract documents a if qualified manufacturer in last or and qualified products with hearts there was testimony by mr adams in particular that described what those lists meant and why they were and the rigorous processes that manufacturers had to go through to get on the list and that part of the reason for that were that the parts may be used and things like weapon systems so the jury  heard these are critical application items they knew they were on a special laughs that required rigorous testing at the manufacturer level to ensure reliability in because the parts may be used for things like weapons systems now no particular end use had been identified that had been excluded by the pretrial order but the united states would submit this is a part a case about fraud and defense department contracts and it should not have been nearly as novel as a pow and suggest to find out of in fact some of the parts were used on an aircraft carrier and again judge moore the jury did know that they were microprocessors and circuits is that right yes absolutely so even the documents them sound the documents that went to the juror any that had sentence sentence but what these documents are is one to two page memoranda that describe in what the ways in which the parts are unacceptable the bulk of these men i'm looking just sets an example at government exhibit nine dash eight three which is at page id two three five five in this part memorandum which is one of the under the active documents in question is against by discussing that the subject material was supplied the contract required part number someone so long number this item as  m l part meaning qualified manufacturer list and the approved sources are kewpie semiconductor and rochester electronics it goes on to describe but the actual material received was submitted t testing center and what was actually provided was a philips semiconductor part with a date range from one thousand nine hundred five to ninety seven keep in mind this is on a contract in two thousand and eight or so the document this testing document goes on to articulate that trace documents were provided from the contractor that indicated that what was being provided was  thousand and six law at part as opposed to the actual nine hundred ninety five to ninety seven part provided the trace documents provided by the contractor also indicated that the part would more so that meant that it was particularly surprising in its own  other evidence is there on each of those counts and these documents were with n eight four anshan binders of government evidence that was put on to demonstrate this fraud through documentary evidence on each contract beginning with the requests for quotation through the quotation representing that that's the part that's going to be provided trace documents representing that's the part that's go inquired about whether some parts were surplus to just take them out of their old bag and put them in another and go ahead and so that them so the jury had heard all this evidence this is what the corpus or when it makes it ruling and the district court was in the best position to understand having spoken with the jurors having seen the evidence whether actual prejudice had been established  and it's my correct counsel that at least in terms of the sidebar that took place with respect to pretty cool the definition of critical application parts were critical application parts it's the record shows that the court said or counsel i guess it to you who said hey that that term appears on all the you know many many of the documents that are before the jury anyway so critical application is no secret am i right the term the term critical application i appeared i think on all but actually yet in every convicted count the term appeared it was written on every contract in every contract other than counts two and four and those were both acquitted so that there was never any question of the term was per basis also and witness testimony the definition had been used by the prosecutor in his opening statement without objection  so and was probably used because given the pervasiveness of the term it was only appropriate that the jury be given some information about what the term means that they are seeing in all these contract documents and then there then there was a witness who gave the definition is that correct and that is one of the things that your opponent objects to yes it was a witness cabin actually the given during his testimony and the objection if any was was very unclear as to it was not an objection to the definition itself but rather with the a usa pointed out that this was the very same definition that had already been used and opening the objection was to going beyond that the definition is taken from the thank you there is also you have any i think you have a sort of amount of time left if you wish to say whatever you'd like to say that i just want to after the janks issue i just want to reiterate  states says this issue is not properly before the court there's a week it was not resolved by the district court for that reason and that there was no suggestion that there was a violation that required a mistrial or a new trial no factual resolution as to what jinx material were provided i and no objection during trial by the defense that there was any lack of drinks material thank you very additional jurors that have voiced concern during the hearing clearly the record will prevail and the panel have the record to review my comments as to the a lot of the case i clearly understand that it is the evidentiary issues of any trial are changing on a day to day witness by witness basis and the one ruling does not automatically force the trial court to abide by that same ruling in all other applications but i discussed it in the sense that it does provide a guidance from the court as to what it will be examining and clearly in this particular case indicates that the court had been aware prior to the jury deliberation of the significant implications of the jury being exposed to this information you are as to what is that i was just reading back through the district court ruling on the motion in limine the in summary though wasn't the district court didn't  say that it was a close question but the government was going to already get in the critical application so that you know the end user on military wasn't much addition to the government and there might be some prejudice so  i don't have the order from iraq at this time but i would certainly say that my recollection was that not only was the consideration of the other evidence being presented it was also in consideration of the prejudicial quality of the evidence now in terms of i hate government but your red light is on here which just check with our clerk to make sure you used up your time the clerk is indicating yes so i think at this point we will rely on the briefs for any any further points and we appreciate both of you arguing on the telephone i think we understand the situation from the motion that he filed and we hope that things work honor certainly