actually know the amount of time because the transcripts please the is don't show time on them they will transcriptions to ship time but these days and didn't show any type of time there were i'm guessing there were sixty even human called that brought out a lot of response from the potential jurors one had to do with whether the juror or anyone they knew had been either hughes of sexual assault or the victim of sexual assault that resulted in thirteen jurors potential jurors raising their hands and then individual questioning and private of those jurors that actually resulted in i believe a granted challenge for cause of five of the jurors and the other question what had to do with homosexual acts and jurors beyond regarding sexual relations between men that resulted in eighteen of the potential jurors indicating that they help very strong believes based on religious and moral grounds of this was wrong and it was six of those potential jurors indicated they could not be fair and they were also stricken from so it was a very combative it was actually more the type of war guard you tend to see in state court than you see in federal court it was a very active were dire a lot of information out there and a lot of information that came out that the purpose built up behind preemptory challenges is for the parties to be able to strike who they believe are going to be biased against their position but there's not enough evidence there to show challenge because now we do we know how long they had to do their strike sheet the we're five or six minutes and then said to the jurors be back in five and then i believe at some point depends counsel said up as much that they were given as much as eight so that's the time route we're looking at and it was sufficient for defense counsel to be able to complete nine of the challenges but not all twelve and the issue is preserved for appeal i know there's a dispute regarding that but when it the deputy of the court and deputy came in and read off the list of jurors of the port ask if there were any objections and defense counsel said that she objected to not being able to complete our list your honor we do object to that we were working as hard as we could the court noted that overruled it and then swore in the jury additionally when defense counsel turned in her primary strike she went over she says are we working our list i mean it is forty four potential jurors and they were working on their on their strike and whether they needed more time to think about it to figure out what they wanted to do the court says well i thought you meant you wanted more time to study it or whether they actually mean complete the form it's still the same process that you're doing at that as a point i don't know that that's really different whether they're thinking about who do we want to drop it or who are actually writing it down the thought that they just had it it's the same process so he said that's actually a friendly question in jest yes i know it is and it is it as i said given the length and complexity of this or dire and the number of responses from jurors that could have indicated a potential bias against the defendant's position it was a more difficult process for the defendant to select the challenge the strikes than it was for the government  first four people listed on the defendant strike sheet were people that she actually challenge for cause that were denied the remaining individual in the strike she one of them had indicated that her niece had been sexually abused by a grandfather there hadn't been a challenge because on it but one can understand why defense counsel would challenge i would want to strike the person three of them had indicated that they had strong beliefs against strong religious beliefs against homosexual acts but they had indicated that they could be fair so if the defense counsel was clearly working through the list and she explained it to the court she also was talking with the defendant regarding who he believed should be struck and in fact this court is noted that that's one of the reasons why jury selection is considered a critical stage is that the defendant actually be involved in the straight selection do we know whether or not the court room deputy failed to give the sheet to the judge want to have had an actual objection on it rather than just the list  write a written objection on your form which is the who you would give it to and that's kind of beyond the scope of the duties of the court room deputy and it needs to be presented to the judge at that point so  counsel indicated that she at the time she made her objection there was nothing about the court's response that would have indicated that he was unaware of what had what she had written on her strike she  she had three points on it and it right and she had written on it we needed more time and it was clear that counsel believe that the court was aware of it when she made the objection because she started it something like other than to not being able to complete our list which would indicate that she believed the court was aware of the fact that she had written on the strike sheet we needed more time ok let's talk about whether webster is still good law and whether or not you have to show i'm going to concede that webster is no longer good law yes i believe that they've given this court given the supreme court's decisions in martina's salazar riviera versus illinois this court's understanding of that case and said that those cases and sanchez hernandez that were no longer looking at automatic reversible error in other words there was no structural cowra and it was no contest to show that is correct your honor  so we go from a situation where this court and many other courts held that the denial of a preemptory strike was automatic reversible error to now we were under harmless error analysis and the reason the courts said this was automatic reversible error was because of the nature of the year for one thing it goes to the composition of the jury which then is present through the entire case the other thing is rules that but so so what i'm wondering what the can you show harm well the rule to do to end this is that harm is the defendant substantial rights have been affected it doesn't say exactly how you determine that and the record show that the depend it would have done something differently and in the other one the court said does the record show that the value or weight of the preemptory strikes was diminished and i'd like well that's it's interesting because of the way the court directed the jury selection in this case the four that the three the depends council said she would have struck three or ten and fourteen w actually been struck from the jury problem and that's because the district court didn't pack sleep follow rule twenty four see the procedure that that rule twenty four c says you're going to follow when you're selecting alternate jurors and have for that the court said told the parties the strength is up to juror forty four and said that includes the alternatives so when the when the parties turned in their stride she one as the fourteen jurors and then at the close of evidence before deliberation the port excused the last two which were numbers thirty or thirty and thirty four ten and fourteen would not have been on the jury according to counsel at trial yes yes because of the way the port said that the jury selection in this case sat in error that you're that you're arguing that that some sort of structural errors of i mean that they didn't follow the normal process that you have to do that separately or is that not for the breeze we believe that it affected the defendant substantial like us we believe that even within harmless have some sort of bestial issue related to the subject matter of the case right or not it is clear the jury amber for defense counsel would have wanted just hype bases for wanting to  strike he had been on a court martial involving rape he was ex military and side law enforcement connection it's a little bit less clear on jurors number ten and fourteen and in fact defense counsel said at one point when she was perfecting the record she said to the court i was moving as rapidly as i could there may have been other jurors that i would have wished to have struck but i wanted to get the three down to get my three strikes you need only juror number four into the bottom of the guideline range did defense counsel request something below that range and could it can the defendant point to something in the record that he might have alec who did about so the court actually looks for record a well you you can i'll give you another minute ok yes sure we're ok talking so i do believe that that that in this case the defendant made it clear that she would have done something differently she strike sheets were given out to the district court did say you've got five to seven minutes but the following day it was clear that defense counsel said it was about twice that much they had about ten minutes to do this but what's more important is that they have all morning that as explained in the district court case from philadelphia was tighten our brief the district judge there is talking about tile and its current three strikes and he said the whole board dire council is tasked with thinking who do i want who do i want to strike who i want to strike for cause this jury of or not i had been there since seven in the morning and it was one pm in the afternoon there was an e and you have to be paying really close attention assimilating a lot of information and then you're saying well you have to be able to make the decisions as you go it ten ten minutes is extraordinarily short you know and counted we needed more time is actually more characters than four ten and fourteen i really think we're confusing the issue when we say they didn't have enough time to write the numbers out i think this was about deliberating and nothing wrong with needing more time for deliberating and once they bring that to the attention of the cork and that's where i assert your honor that it wasn't brought to the attention of the court and i maintain as stated in the brief that it should be on plain error and we know that because the district court released the entire they start the trial and it's the next day when they're having a conference on the record about this issue and judge robert gibbs said in four different times that he did not know this is on page nine of armory that wasn't told to me i wasn't told about it earlier i was not told that you had not written them all in your printer is onto your list so that was never stated to me i was not told about that it did not come to my attention and i think that's where we get back to this idea that was a deliberate or briny but he saying that he was the course saying that he it wasn't told that they had made there that they hadn't written the thing but what's at issue is they needed more deliberative time also so he did the court did know they wanted more deliberative time he's pretty clear that he did not know what they were of juice but he says here i thought what you needed was more time to deliver collaborate when he says that he knows that what they need is more time to deliberate but they're changing their argument though to say we didn't have enough time to write it which i think it's a false argument and if it gets down die i think it's both you have to deliberate and then write down well the judge dredd readers who have been there the entire morning who had listened to all of the questions in his discretion he felt that they had had enough time to deliberate and i think it's interesting re talking about the juror numbers and the proceed to actually look at the sheet and to realize that under federal rule of criminal procedure twenty four c alternate strikes can only be used on alternate alternate strikes can only be used on alternate and when we get to fourteen he was the ten to jerk there was no the court set a strike zone up to forty four and there was no possible way that jerk ten for ten or fourteen were going to be alternates no possible way fourteen was the ten to jerk so if they really had a problem with fourteen or fourteen they should have been in number one in ten they should not have been to the alternates and it was nowhere in the brief was it suggested that the way that the district court set the alternate jurors was error we're not dealing with whether the district court abused its discretion in giving ten minutes or not that's not the question before us the advantage that is not but the court this court has been clear that district courts do have great discretion that's not but that's not the issue the issue is whether or not it was  to establish that that aguilar was harmed in any way there was no harm done this is not a constitutional right this is a law a statutory rule based right is this like a regular harmless error analysis or as in which you would bear the burden and harmless error analysis the government has to show that the person is not harmed or is this some you mean you just said it you switched the burden you said they can't show who bears the burden to show harmless error in this type of scenario well that's an interesting question and given that the wide ranges of cases that have shown that  was there in her the entire for not believe that there was enough time that the government stated we have plenty of time to do this and the record shows that that when if he did your honor and did he put on witnesses any witnesses what kind of evidence to get was a mosque where he was evidence close yes your honor i think you know it was not we had a signed confession which was admitted into evidence as well there was a legal issue whether or not he that the issue argued to the jury was that he this was in the ward and whether or not he had the authority whether it really was a relationship and the jury he works it wasn't it i think it was attack question because he worked in the kitchen this wasn't a situation where he was an armed guard patrolling but all that evidence showed he admitted that he could tell these wards these detainees what to do they had to do what he said he could get them in trouble we introduced into evidence as an exhibit the the rulebook that the defendant aguilar had signed showing that he had this responsibility that he was not to have inappropriate conduct these were not equals and that in so to the extent that that was the issue for the jury and it was that was the issue for the jury in that capacity he had the authority over them as as their words yes exactly and that there was never any doubt of i'm sorry but not what he had done back we had a written confession that he had performed oral sex on one to the detainees was at the very very much testified that he was victimized by this event and certainly felt that he did not have the opportunity to to say no discussing with judge jolly is this what you would respond as to why the error was harmless if there was indeed error ok that's i wanted to make sure i got an answer to the question of assuming you bear the burden assuming that there is error what is how is the error harmless the evidence was overwhelming of gas to go and particularly having anything else to offer on why the error was harmless i think i would would show that we have the written confession we have the testimony we also have you know sometimes the government does things right we had him sign that he had read these rules which showed that he had authority over these folks and could not engage in these types of acts  but i do think it's important to look at a few cases that are similar nothing's quite exactly like this out of this circuit but we do have the wilson case and the thompson case and i would like to talk a little bit about the in showed that if i had been there if the defendant had been present he would have struck a juror that wasn't struck this did not amount to a reversible error even though the panel would have been different even though there w air it was not reversed where turning to wilson there were actually two alleged errors there one was that the the the number of print  random out of the fourteen so i said that was there but they still found that that was not reversal the key issue when we're talking about and i am asserting here that it's his burden under plane air you need a you need an impartial jury me and i think i do think it is important to again emphasize that we're talking about four ten to fourteen or no notice on one of those or was there was a suggestion that there was  going to make it onto the list and i just don't think that that's enough especially under thomas and you know these are very experienced defense attorneys gautrain assistant public federal public defenders a certainly within our recitation of the facts that the facts i've highlighted are resided there and and your honor you know i mean you have a footnote three even if the court decides on harmless error of you when applying harmless error the court must still determine whether arafat substantial rights and there's no effect the error must be disregarded and that's that's the sum total of our most error in your brief isn't it is that right to the that you know the evidence was overwhelming and defense counsel had sufficient time to write out those numbers if they had time to write out we needed more time they could have certainly written for ten and fourteen only one of which would have actually something happens and we come to argument and it's not clear that the errors plain and then we get into a situation where he's harmless error even argued why isn't it just argued in the brief as the backstop can we can consider this argument is the backstop if it's not briefed yes your honor i think the court can consider whatever it wishes to consider and certainly when it's a factual determination we're not talking about cases not talking about case law we're talking about facts have it you're actually a magic reversal then simply finding the air isn't enough so i do think that there is sufficient evidence in this record to show that any error was harmless we have a confession that's that's clearly enunciated in the factual recitation and i and i do you know this is one of those interesting situations where the government is really arguing on behalf of the district court judge and i think judge rodriguez did things that handled this were dire in a manner that that that gave the parties more than most restaurant judges  e counsel even admitted it was more like a state more dire and i think that he shouldn't be criticized for how this can go on to carry the state or guy or you get ten minutes for a soft tissue car wreck so didn't have enough time yes so your argument is that the court abused his discretion and not allowing him to more time of what he set your argument well as it was presented to the court discretion in this that's i personally judge to the point where i'm stumbling because the number of preemptory strikes is actually set by rules so rule twenty four b says the defendant has a right to te comment on it and consequently abused his discretion at york and yes i'm can see that is a way that my argument could be could be viewed and i would point out that the cases that the government cites to the defendants received ninety five minutes there really and i could be wrong but i really think that the issue here comes down to harm and how how we determine harm in this case i believe it's preserved issue to get the burden is on the government it's an issue where we used to apply automatic reversal and now the argument being made by the government is that it always was unless you can show that there's a bias juror well if you can show there's a bias juror that's a separate ground for revers this case had to do with authority our client did admit that he had committed the i dispute the government's representation that there was any issue regarding consent the does report specifically said that consent was not an issue  because it it has to do with authority social abusable ward and there was a lot of disagreement in the matter whether this was consensual or not but that was an issue for the jury to decide the issue for the jury to decide was whether the range of the authority within the position was what was disputed whether that position gave him this type of because the statute says because remember the three it's a custod disciplinary or a third type of authority over the individual ok my time's up thank you very much both probably for a very good employment of argument called the next case of the day