we have for appeals to hear this morning counsel i think you know the drill we're familiar with your cases we've read your grace the authority cited in your brief senate least portions of the records and the limited time did you have this morning you should go straight to the heart of your argument make the key point you want us to understand this morning we're probably going to have some questions be mindful of the clock i will not give tax preparer and was originally charged in a superseding indictment with sixteen counts of aiding in the preparation of false tax returns and three counts of filing false personal tax returns after a jury trial and during jury deliberations a certain journey g d came to be known as g d send out to the court allying statements that two unidentified jurors that came to be known as jurors a and b had made and jury said i quote i just don't like some of those people it's hard to be impartial juror b said and i quote some of those witnesses don't even speak english they shouldn't even be in this country and it's important that i point out to this court at this moment that a large percentage of the government's witnesses were black immigrants of haitian descent that either cannot speak english or if they did speak english that the juror was speaking about the i r s will judge you know when you look at the best place to look at the sea is that right or not just i referring to she says i r s but when i think of that a lot of the i r s witnesses a large percentage of those witnesses were haitian immigrants so just by talking to  know a lot of people in america you know yes judge i understand that but when you look at that comment along with your bs comment it tends me to think and i think that it i think that you could look at it even the court said this when they granted and evidence rehearing on my motion for new trial that it's an over racist statement because it says it's hard i don't like some of those people it's hard to be impartial and then when you look at the next statement it says some of those witnesses don't even speak english they shouldn't even be in this country well it's impossible to tell with the with with just your g d's testimony what the what you're a was actually talking about yes juror b it looks a lot more it seems a lot more racially prejudiced by juries com it could be so as well because if they're referring to the irish witness it is a large percentage of which were haitian immigrants if they were saying if those are the people they were referring to saying i just don't like some of those people it's hard to be impartial then it's an juror so before we started basically reviewing the case again all of the evidence by the way in the case the jurors and i have to clarify this juror and was referring to the i r s europe the was referring to foreign when he when it is you disorder granting the motion for the evidence rehearing and asked the attorneys to submit proposed questions which i did and in those questions anything more because judge that point in time i had already asked numerous times and i don't or stood at the court had denied those requests so at the end of the court's questioning money and he said to me mr bryson i took that to mean mr bryson do you understand my ruling and at that point i didn't ask any more questions or i didn't i didn't have any more requests because i had already requested  that probably six or seven times not in that actual hearing but leading up to it and the proposed questions i asked for it and then again during that hearing when the judge said you have any questions of juror g d i asked him to ask her numerous questions about how certain those statements affected other jurors and and j bias that cast serious doubt on the fairness and impartiality of the jurors deliberations and then it goes on to say that to qualify this statement must tend to show racial bias was a significant motivating factor in voting to convict the judge obviously found that that's the end it was met and wen is what i want to ask you about what's the standard that governs alternately on the decision of whether or not to find bias significant enough to set aside a conviction whether or not it was a significant in fact around we say that the record indicate that any of the jurors prejudge guilt or innocence as a motivating factor and their vote to convict the defendant see what but like it like like this court has ruled in heller it just there he questioned all the jurors and they started they said thank you for doing that because you made a record for us to be able to judge for us to be able to review and i think that would be he would have to question all jurors to see what these statements to fact these statements had on him as i think we understand your answer  referring to the i r s and later in the transcript she she bolsters ad by saying in this on page fourteen that there was bias on both ends and that there were business people that apparently did not like the s so i think it's very clear that that statement was about the i r s there are four iris witnesses that testified at trial and i think it's very clear that your a statement and and again there are several statements from first of all the comment of juror b that that seems to go primarily toward the government's witnesses it was the government's witnesses that needed interpreters my understanding is that the defendant spoke fluent english and then he did so with a slight accent but several of our witnesses needed interpreters i'm sorry he asked the defendant did testify in the case that's correct yes and also all of the acquittals on six of the counts were were where the witness the taxpayer client witness needed an interpreter so that suggested that the bias went against the government actually again we still argue that this was playing error because after complaining juror testified defendant i mean the defense counsel did not be it already before simply because we had heard the testimony of the complaining juror and i think it was up to him to explain to the judge why he believed that testimony was in adequate and therefore we needed to call so there's at least some aspect there for testimony that warrants westerling or juror b do you disagree yes your honor and that's exactly the statement defense counsel should have brought up the trial judge of the time after the testimony instead after the judge said that he thought there wasn't evidence defense counsel simply said ok so i don't think i think he had to preserve this at the end of the testimony and explain why the testimony was insufficient and why it required the additional testimony of at least juror b and the palestinian and and and why didn't this report say it wasn't going to complaining juror and that said that if the court finds additional evidence of racial racially motivated verdict it had discretion to take further measures so they just report left open that it would call additional witnesses but it was  and and had a very good basis for concluding that it wasn't and no one suggested that more inquiry was needed yes your honor that is our argument that he should have explained to the district judge why more inquiry was needed for example maybe the district judge would have decided not to call a juror but decided to call juror b if he had argued that point and you say that the  the complaining juror g d said there was you know she she waffled she said she didn't know what was in people's minds and that people tend to stick to their beliefs but when the court asked the automat question twice and all i read the nd time the court asked was there any indication in your mind that any of the eleven other jurors decision to convict was based on something other than the evidence and the juror g d said i don't think so i don't think so were additional thoughts on race or discrimination maybe that kept them outside i wouldn't be able to comment that the judge asked once more so what's your opinion having been a party to these deliberation the cut the con it was based on the evidence presented and the jurors i believe that it's right and she later basically repeated that statement on page twelve when the judge asked it for a nd time so i don't moreover this court has said that discretion to call a deliberating jurors is is very broad with the trial judge that actually discretion is at its zenith for calling jurors during deliberation and and the supreme court and this court and also said is the correct way to go that you again here we have the complaining juror who is likely who is sensitive to these issues there's no reason to question her credibility in this case she seemed to give very honest testimony about her opinions and so there's no reason to question the finding and her testimony that it did not affect the ultimate verdict and that was a conclusion of the hearing and there is the same question of discretion what this banter that governs the trial court judge here is the standard laid out and hang it which is the standard or reaching the rule and going as a result of racial bias and maybe there's not a lot of difference between that i just i'm just trying to get you to tell me why we have this free jazz standard is on the finding based on compelling evidence that racial animus was significant motivating factor in the decision to convey the standard whether it's compelling evidence or beyond a reasonable doubt that's unclear i mean just to remove one juror you have to have beyond a reasonable doubt that mad juror was unable to reach a verdict based on the evidence so it seems like the removing you know throwing out an entire verdict should be at least as high as the burden as least as high as a standard for throwing out a single juror so again your honor i i don't know the answer to that the supreme court didn't tell us but i think  think instead of just the predicate finding that there was a statement there has to be a finding that it did actually it was actually a significant motivating back during the decision to convict and that  so you have to ask but you have to ask raise care and pressure and so we give a whole lot of discretion to a trial judge but at one point in this call  the judge says i'm talking on page eleven he says ok now even though you indicated you thought some of the jurors were hurried during the deliberations is it still your opinion that all twelve jurors based their verdict upon the evidence he's come at this question more than one of them is the ultimate question the juror says i would like to say yes to that but i can only speak for myself i know i just looked at the evidence some of the jurors were looking at the evidence exclusively basically talked to the rest of the jurors about the evidence ok well was there any indication your mind that any of the other twelve jurors the decision to kill that was based on something other than the evidence i don't think so the court out i don't think so he says that twice then the judge asks him to step outside speak with the jury room the judge says i'm sure you encourage travel expenses coming back down here i'm talking about for thirteen and fourteen and i can assure you that you are reimbursed i appreciate that just by civil duty to be here and he doesn't just stop with that plea he revisits the issue he comes back and says at least this much all of this having been discussed you understand and the judge just bringing them back in to thank him the juror says there is something that i would like to say if you don't mind the court yes ma'am the jury so the reason why i hesitated on your question the last time i was there and that's what he's percent reading about is the question you know did my instruction do the trick or did it so the reason why i h well your honor all jurors come in from the courtroom with some amount of bias based on their experience and history again she said that there is bias against the government against  there was you know there is some bias there but she already explained that she thought that everyone all the jurors deliberated and that the verdict was not based on  bias again she's saying that she believes that she she said that she said that she said that people keep these views and are in their head and she doesn't think they changed them so she says of the people that made the statement she thinks that maybe they all she had said that basically before she had said that there was bias in that and that you know she did not think that people you know lost their bias she thought that people kept their mindsets but she explain what that bias was and she explained that it didn't seem to affect the deliberations and didn't affect the birthday so and we know all jurors come into the courtroom with some type of bias  she had gone over that several times on what she meant by let me ask you just one other very quick question and i know what you see here are are significant enough at least for me i don't think it's too late i mean i would think if the juror is alive they'd still have some memory of their deliberations i don't see how it will help because i think we have the best evidence we have the evidence from the complaining j about how deliberations went and she was sensitive to these issues and saying so calling is a press if i were to reject that and say i still come away with a n it's the same answer your honor i don't think it's too late to do that i just don't think it's necessary because we've had the best witness testify regarding what happened during the trial and what happened during deliberations so i just want to add one more thing when the jurors starts to talk bias on both sides and business owners it appears to be that she's going to start talking about the bias that was against the government really talked about that much before she had talked about d's answer was point blank i don't think it did sir and she in the court said you don't g d said no and the court asked her to explain why and she said once we started talking it was evident that some of the jurors a and b were still in the thought process the thought process that they the comments that they initially made so once we started deliberating the issue of race came up but it wasn't as strong as it was when they st made those comments which is why i raised the issue i believe the mindset was still there that there was a race issue there was a dislike or distaste but they went along with the process and you know so she quit she sang just like you letting about what's going maybe they kept it inside you know everyone goes over every single piece about the dents and the conviction when the district court says do you think it was based on the evidence she says yes right isn't that the rest of the story but it will just by i think you're correct in saying that she was speculating she was speculating about all this and her her testimony here is basically hearsay testimony about what the other jurors had said what they thought and the best evidence would be her testimony it would have been well we requested and that is bringing in those jurors to question them so we wouldn't have these questions and it wouldn't be and complete and inadequate investigation and every time we asked we made that request the government opposed to us and now they say here and everything and everybody is sitting here speculating because they obstructed imposed our questioning of these jurors it was a simple request after overtly racist comments or potentially overtly racist comments were made and so just because because of that mr maher mauls conviction should be vacated and the entire matter should be reman