attorneys will be addressing the other arguments that have been presented in the briefs the in this case the right to a public trial that city issue has two aspects the closure during the jury selection process which was a complete closure which is reviewed under the plane errors standard of review and then a closure during closing arguments which was a partial closure to the exclusion  and we submit that that clearly erroneous if you look at going through the the testimony that was presented at the end you hearing you had the court security officer who testified deputy u s marshal and two for four people who had attempted to get into the courtroom and were excluded and five the five attorneys who represented the defendants at trial the court security officer testified that the he was at the door at various times when members of the pool were dismissed the that the court doors were closed and that they were opened by either by the deputy u s marshal or him as the as people left we're not suggest we're not arguing or saying that the courts that the court ordered a closure the court found that he didn't and we are not contesting  order from the court or a direct order from anybody it was the practice of the courts both of the lawyers the lawyers said that and i will i suggest that's also supported by the statement of the assistant the assistant u s attorney in discussing presley which had come down i believe the day of the trial started distinguish pressley from the situation that they were addressing in terms of the partial closure and said that that describe pressley as a process similar to what's done in puerto rico during voir dire everyone is excluded so i suggest that it's not only the defense attorneys who are testifying who testified that this was the practice for as long as they could remember but verified by the assistant u s attorney that this was the practice in puerto rico but with this  ing that it was the practice in all of the district courts in puerto rico or just with some judges the testimony was that it was the general practice in the district court in puerto rico to close the courtroom to exclude members of the public during the jury selection process and the deputy marshal and the c s have testified that their testimony confirms it and they said if there was a special request then members of the fence family were some judges allowed members of the and family in if there was a special request if you need a special request in order to come in that i think also suggests that the general practice was that the courtroom was not open to the public during jury selection well you  ms rosa that she could not go in but you know i think for the other people who tried to get in your courtroom who they didn't couldn't identify precise couldn't give a name or precise description but that they are trying to get in and were told by courtroom personnel that they could not come in or it these were confirm saying i'm not we're not contesting the courtroom not locked or should but in turn and we're not contesting the judge's finding that he did not personally what are in this case the court room to because we are contesting as us to conclude that the trial court's credibility determination on that issue was erroneous because the district court very explosive and basically believes the court officers and doesn't believe anybody else is that cigarettes you're asking us to say that that credibility determination by the district court was clearly erroneous and saying to the  court's specific statement i believe the court officers and the deputy u s marshal was made in connection with the testimony about a piece of paper being put in the window at some point in time  and the focus here i think is before that and what the judge ignored was the testimony of the deputy marshal that at some point he but he told them to move away from the door he didn't tell them they could come in and any any with which to any person standing at the door looking in trying to get and having been told that they could not come in and the judge didn't say that the people were not told that they could not come in he found that they did not come in because they were told by the attorneys and not as a result of any conduct by the court personnel and i'm suggesting that the deputy marshals testimony about telling people to move away from the door is telling them that they can't come in this is your position the but whether in th specific cross a judge ordered the courtroom closed or whether a court officer pursuant to the court officers understanding of the general policy was keeping the doors closed that really doesn't matter but i understand your position to be that this evidence you're hearing would support a conclusion that there was a longstanding well understood practice here in puerto rico the turn the border process no member of the public goes into the courtroom and the judge understood that so there was no need to order it in this case of the court officers understood that and to the extent that somebody would try to get in they would they would keep them out but it's not long standing policy understood by the attorneys as well that's that's the problem here isn't well that underlies that that caused the problem i am saying we are saying that here in this case there was in fact an exclusion of members of the public eye be court personnel and not simply from the instructions or advice of counsel that the court personnel told them they could not come in that case an exclusion and i believe that deputy part of teens testimony supports the testimony of four people who said we came we tried to get in we were told we could not come  if the court room was full at the beginning but jurors were excused potential jurors were excused and they and people were still kept in and in terms of whether the court room was fo and you have to have an overriding interest you have to have a closure that's no broader than necessary you have to have a consideration of reasonable alternatives by the court whether they're proposed by the defense or not and you have to have adequate findings to support the closure and in this case even if the potential jurors filled the courtroom at the outset that is not an overriding interest there are ways that you could address that you could have additional chairs brought in and it's not clear whether there were seventy five potential jurors there whether there was a way of seeking additional people  particularly clear on it was not made clear on the record at the tenth hearing and here there was no consideration of any alternatives there were actually no findings made by the district court at the time of the closure the findings that he made came after the fact so i don't think that the the standards were met for justifying maybe it doesn't matter but is a rather amazing that it in light of that the solution the attorneys here would think it was following to keep the court room closed to meet with the owners can be clear on the proposition  unless the kind of analysis that you've just described is done you can't you can't close the trigger of the public when the order process while some of the attorneys has to find hearing that they were not familiar with  hoping well some also justify that they were aware that they couldn't close the court room but because of the practice down here didn't they chose not to speak up because they felt that this was the practice here regardless of what the court had sent in who wins and i think that the way they didn't practice it was confirm that speaking up leads to nothing more than laying there what we agree it's fine or i know that i'm a dissenter there the problem with them not speaking up is that it makes your job more difficult is opposed to easier to human straight what you're saying well i think that we have matt the pla error standard you review i think we have error it's plain it affects the substantial rights of the defendants the problem is the way the district court is set it up that the court is set it up so that erroneous the but to address the exclusion of mysteries are you have a sister which is a partial closure and this court has said that a partial closure has to be justified by substantial interest she was the exclusion that we're talking about is the exclusion during front from closing arguments which occurred on april nineteenth and her exclusion at that time stamped from an incident on april fourteenth arguments came from the altercation between the deputy u s marshal and the defendant and the deputy u s marshal to described it as the defendant coming at him and then he pushed the defendant if you watch the video that triggered the education in the defendant which then as a lawyer yes but the sister comply with the orders of the death of the courtroom security officer and yet the marshal and i suggest that their actions in going off and telling her to go out also suggest that they were controlling who stayed in the courtroom and who didn't they told her she had to take the children out children had been in that courtroom throughout the months on prachi proceedings she questioned it yes but she took the children out and she came back alone she sat down and she was taught that the children had watched the rest of the trial there were two children had been in the courtroom during the rest during other parts of the tree because there's another portion of the transferred when the prosecution was going to show some particularly bloody pictures where they brought this up and the person who had a child in there at that time took the child out but there had been children and there was no evidence that there was a rule that children under twelve could not be in the courtroom  what what then gave rise to them for these particular children to be removed there it was their decision the there was no suggestion that the children were rally or had made any noise they were she was just told to take them out and she did and she came back and she sat down and she was talking with other people again courtroom was not in session and she was complaining and the deputy u s marshal came over and said you can talk but don't complain about what we're doing and it was after that that she was taken out and told to leave again which she did and then was excluded told to leave the courthouse which she did and it was after that when she came back on five days later when she was told she could not stay out now she did not she did not she complied with the orders even though she felt that they were unfair so i don't think it's appropriate to say that she that it was her precipitation of the incident that justified the court's exclusion rule five days later and in fact she simply said well the marshals believe that things will go better if she's not here and they're in control of the courtroom which also supports the the conclusion that they were the ones who were excluding people and that it's simply he didn't the court didn't consider alternatives and there alternatives were propose the defense counsel said bring bring her in and monitor and there was and he rejected that out of hand and said it's up to the marshals and she has to stay out and i don't think that that rises to a substantial interest and it certainly doesn't rise to adequate findings to support the exclusion given the fact that she had previously complied with  so i am allison corey and i will be very quickly as dressing the very important issue of jury taint there are a few aspects to this issue number one we have three deliberating jurors who admittedly felt threatened and intimidated by members of the defendant's families even if the government says well one of them said she was more uncomfortable than intimidated even if you discuss disregard that juror who did say she felt more uncomfortable under leading questioning by the trial judge we still have to deliberating jurors who admittedly felt threatened and intimidated the second part of this is that we have a majority of the deliberating jurors heard about these incidents so they had bits and pieces maybe they didn't know everything that's ok that doesn't diminish the fact that a majority of jurors knew something was going on but the kicker is the really bad thing is that jurors lied to the judge when they told him that they had not talked about this about the incidents and we know that they did lie to the johns under questioning maybe they were worried maybe they're afraid because they knew they weren't supposed to but they did lie and we know this because the other jurors who were aware of these incidences said so yes i heard about the smoking incidents we did you hear about them from the smokers oh i heard about the intimidation you know are they told me that and i said did they intimidate me too the problem the the grave problem is that because jurors lied to the judge we cannot you cannot accept their claims of continued impartiality the judge or even more than that excuse me or the could too little too late your honor he said the jury shouldn't eat in the cafeteria anymore  you know they can't go outside smoking way too little too late it didn't cure the harm continue your use your honor the district judge made a finding that this was quote unquote predictable and harmless now i know i don't practice in a district court here but the the judge i suggest at a minimum should have dismissed the affected jurors perhaps not go the whole mistrial as the defendants wanted  jurors who are intent on the defendants have a constitutional right to an impartial jury and when you have two jurors who are intimidated and lied to the judge that cannot stand against  told not to discuss the incidences and they did and we have that's pretty good indication that they are they're not necessarily following the instructions of the court and given the seriousness of the con contact in this case the intimidation and the lying this is there should have been a mistrial this was not an impartial jury there are no further question issues concerning sentencing and we understand that in this case the sent the lie sentence imposed and the twenty year sentence imposed on count six which i believe is the consider your honor ok then the other issue also sentencing that we would like to address is the fact that the lies sent in itself when one reads the transcript and when we see factors or information about it if ended that the court took into account that would support a life sentence the problem with that testimony is that mr ramos was there only from june or july of two thousand and seven before that had been out for rico for a few years and then he returned in june of two thousand and seven went back to the drug point on july of two thousand and seven and then by june two thousand and eight he was arrested in addition to that he only worked three nights a week  selling and then in two days they time according to the record be two days and he were take time he did that only for a month the resolute for two months and the rest of the time basically he was that there was a very long trial and it was difficult trial in terms of time and density i believe after taking a look at the transcript and that is the record will that in the end if we take a look at the commutative error doctrine and apply it to this case a new trial should be granted i know that there is no perfect trial but as we pointed out in our briefs there are several errors committed by the district court that if they may be consider harmless independently they certainly are not harmless when they are looked at jointly since the very beginning of trial stated they had trouble with the jury aside from the argument that was presented by me miss meissner which is a structural error i believe that errors continued going on for instance very early in the trial there was a the court permit unrelated or testimony of a murder that was on related to the indict the conspiracy that was going on the whole thing and that was yet it was permitted on the rule four hundred four b and it was extremely prejudicial towards my clients aside from that specific error for instance in many occasions while cross examining  on that cross examination to have proceeded all of the circumstances so i believe that those two errors there were errors all saw and provision of late materials that may be understood as cross examination he said that the core room was packed with jurors meaning that there was nobody else there was no public in the in the court room except just the jurors eternity's the under the fence and he went on to say and i quote like i mentioned before we didn't have space so i didn't have to tell anyone don't let anybody on anybody and i'm sorry because we didn't have space the court room was packed that was the closure and he was performed by the marshals and that of that this record certainly there was no order by the judge we are not disputing that but you could tell by the gist of the testimony from the the court officers say they didn't exclude anyone but if anyone if any member of the public or a family member have asked them to enter the courtroom they would not be allowed to do so it is that the inference that you want us to draw from this record yes that there was a face policy of closure longstanding these deputies understood that putting and he was so one understood that according to court kind of thing he didn't have to give any instructions it was sort of a given sort of speak and that corroborates the testimony of all the attorneys of all the witnesses the from the window getting to just the latest comment he actually told them he actually prevented them from coming in i believe some of the witnesses testify some of the family members to supply i'm sure one of them did that she tried to comment and actually i'm trying to figure out and i always wrestle with this when these cases come about what kind of does this is the judge have an affirmative duty when the judge looks around and sees that every see is because this is a structural her and i think it's from the ultimate guarantor sort of speak on the constitution is the judge and if we if we are talking about a structural error i think it is it is up to the judge a good enough reason then this court has to over rule us be bared were the this court established three specific requirements for the district court to give multiple conspiracy instructions conspiracies i mean i think it's not it's undisputed that drugs were being sold there but the uncontested testimony of all five government witnesses was pretty much every owner had complete control over their own business he in fact the well for example my con was never on a meeting some some of them had meetings and and one of the meetings that was relied heavily by the government was based on the testimony from in the evidence show that it was that there were multiple conspiracies and this court said well your honor just sat that you know both instructions whether the jury chose one instruction and chose one very that's the end of the matter that's the difference between bear in this case in this case instructions were asked and they weren't but they were not given while the revered yes you're on maybe i do  it was not one one conspiracy there were actually multiple conspiracies i think that's a little unfair to presume that jurors can come up with that with with that conclusion by itself especially when stand up on appeal but that's that's that's i mean that's my job as an awful how are you prejudice by the single conspiracy i am yes you are i am prejudiced by the conviction itself i am prejudice because i was co without the jury being properly instructed on what must my theory of the fence there is my prejudice your honor and i think that's very serious i mean i think that's a that's a very serious prejudice i mean not that i assume you argued to the jury the very point that you're making the the evidence is not support a conviction for the conspiracy charge that in fact there were other conspiracies that may have been shown by the evidence here but those don't come out so you were able to make the very argument that your advanced you were up you were allowed permitted to make that argument to the jury were you  arguments but jury has to follow the judge's instructions not not not the oh noes always pointed out the those who told the juries that the state has to prove that they were guilty of the conspiracy charge and if the fence counsel is arguing that the evidence only proves a different conspiracy they'll surely understand but that doesn't work under the under the instruction was given is not true well it depends i mean i the answer i would say respectfully is no because understand that each drum owner had a different conspiracy that that could happen and that had legal significance i'm going please remember i'm not arguing insufficiency of the evidence ok i'm not making that point there were certainly i mean i could not meet that standard here i'm just saying that on the to standard sent in baird the defense was entirely don't do that instruction that's all i'm saying and if you look at the evidence in the light most favorable then you should consider multiple conspiracies and if you found that there are multiple conspiracies you have to acquit that is very different from from from counsel making arguments to the misconduct which were several incidents that happen at the onset of the trial i believe that these incidents that are really very in defendant's the parents briefs court and can be described as three separate incidents one was at the very beginning of the trial in which with one of the family members complained that what the jurors were discussing the case and  questions and this is when the two halls was interviewed that word coming to two to the knowledge that in fact there were several individuals that had some knowledge of the incident but the  court made a determination that there was no such discussion among the jurors as to what had been the discussion but some of them were part of the first incident and some others were  specific in their more specific knowledge that they reported to the judge that something had happened they knew that something specific that happened and went with this that counsel's argument that the jurors were instructed not s number thirty thirty one thirty three which we don't want into smoking he said and the other ones they had even mentioned that they were called then but there was no specific discussion as to what had been discussed but even so when the court instructed them at the very onset of the trial that instead of of that do not discuss the matters that were discussed in camera and do not discuss the case with anybody prior to deliberations and the court did step did take steps furder to control the jury and because a court made a finding that there was not just no such thing as the jury room where they were the way they were going to take their dinner lunches or the way they were going to actually be assembled in the court in the court room and as i from those incidents the court did take the appropriate measures in order to avoid declaring and mistrial in the case and those those measures were the correct ones due to the circumstances that there was no actual taint there was no  specific intervention that my lead the defendants to understand that there was an actual prejudice by by the ensigns that happened in the cafeteria so if there is no any other questions who were representing the defendants at the time remained silent and at no point during the jury selection gave any indication to the quiet that the family members were not present in the c had also the right to bring that to their attention to quiet and they decided not to do it well the u s attorney should overbroad up to the court yes but that was a situation that was nobody was aware of the fact that family members were not even present because we're talking about the the beginning of the trial the family members were not even identifiable by the quite so there was no way that the court could identify that people who were present in the courtroom there were certain individuals that were family members or testimony that has been presented to the court that were talented deputy marshal mark part of you stated that at some point there were no seats but there's also evidence in the record that as the jurors were being interviewed and they were being dismissed for cause they were being allowed to exit the courtroom by the before we get to the jurors beginning to exit when will jury selection began there were no seats in the court room wasn't it and it seems from what i've read that it's apparent that everyone knew that everything was being occupied by a prospective juror seems to be that there was a situation at some point due to the testimony after the marshal that the that the courtroom was was full at some point if it's not a cunt to the attention of the court at the time that there are no seats available and nobody is put in that situation under the court's attention at the time maybe the point it's handing on their matters and he was not oppressive the situation but now you know having been a trial judge one thing i know is that judges get this even in the room to observe what's going on including work where all the seats are taken that is correct but i understand respectfully that at the no seats available but there was no statement from the witness that stated that then they were not people going in an order their family members were forbidden to enter into the court room and there was no allegation and this one  in the trial transcript there is one claim from one of the attorneys requesting from the from the point that the court be sealed so so it's contradictory from the allegations additional evidence aside from that claim and which was vague that it was the usual practice and certainly has been raised before this court that that public has been excluded but there had been there was no indication that there was an order issued by the court whatsoever that was followed by this report in and the different judges in this district because by by standing so and this these attorneys were asked if they were familiar with the press the case and they were familiar with the always case and that they knew that they had the right to if the if that was the situation at the time and and in taking as true what they what the family member stated that they had come forward to them and stated that they were not allow that they had the right to claim that before the quite and they said that just because a practice they decided to choose a practice over a constitutional right so making that that that for it for the court personnel who was in charge of the safety and the quorum of the court room and the incidents even though there have been a mention that there was a video that depict what happened and  those five days because several attorneys and one of the defendants had to receive attention because they got upset by this whole situation that it's still the next court date it's the day of the closing arguments so is immediately thereafter that she shows up to the court room and even the attorney that was represented rosario at the time did accept that she did not behave properly and even though he posed the ex by the marshals and therefore she was excluded and the defendant had failed to to to state to the court in this case what was the president's that he received by by by means reconstruct being allowed to go court that that has been the practice and i understand that the case of presley and and and the georgia case and also this court's decision in a ghost of a i was really clear as to the instructions that the courts they must follow in terms of the of the right of the public to be present in the public trial and the reasons that are are are under life or for that com minimum term that that he could have been even though the court made a finding that he was reasonable for c foreseeable for him to be exposed to a higher amount of drugs to quit did in fact when and  should it be given to the jury are you saying that there was no evidence now that could support a multiple counts and if there was it isn't the court obligated to so instruct the jury evidence of a multiple conspiracy and that was and that was just a theory of the defense but that was not supported by the overwhelming amount of evidence that was present in throughout the trial to point can't deny the defense request for that i n and the poor did in fact instruct the jurors when they charged them that the law of the conspiracy so i'm trying to figure out that there was certainly evidence that these folks operated independent of one another so are you saying that there was substantial evidence to support multiple conspiracy theories i understand respectfully to the contrary that there was ample evidence that sustain also evidence that is or a multiple conspiracy theory but that the multiple conspiracy theory was not supported by the evidence or so this this is the government's position it was not supported by any of his because if evidence by by not only by did videos and and the interventions and the testimony of law enforcement that all these individuals were dispensing distributing selling drugs at the same location and for the later part of the of the conspiracy was a more specific location one street want separate point in which these all these brands were sold just by owning a brand not necessarily create the multiple conspiracies because the rest of the evidence the entirety of the evidence supported that there was the overlapping of the participants and they were using the same that they were deciding the shifts that they were going to work and the lookouts who were working at the drug point were being paid by the sellers who in turn were being paid by the owners themselves and they explained and we take objection for example and intrinsic part an important part of how these cases and how these this conspiracy case was presented because if meetings are held i'm on the owners of the different brands and decisions are taken by the group of individuals and they're using the same place regardless of what they own it's simple conspiracy and what that was wanted yuri when they received the charge they were instructed to do so and they were instructed that if they found that they had the defendants to be to be a judge separately and independently that's one of the instructions and secondly that if they found that they were part of another whether there was a whether it was prejudicial what what what standard should a district court judge apply and deciding whether there is enough evidence to justify to justify an instruction but i think a moment appropriate at the time if there is no other question as to that matter i would like to move then to the argument of the prosecutor misconduct which i know it's going to be addressed by vis ms mis presented and because the testimony is was contradicted by have you that was taken during the investigation of the case and that what the witness relayed it to the members of the jury was not what presented to the jury was even though several portions were played when the direct testimony was being carried out by the prosecutor see the witness had related to also he was relating to an incident that happened in february of the year two thousand and eight and when he's relating to the incident he identified that we federal side it was present on that meeting and he furder explained that he was he during this incident when in fact he did testify as to it and that later on during closing arguments the government did misstate the evidence and the same  immaterial to the guilt of the defendant how much of because he was a test of sort of how much of that was overwhelming evidence and during just trial that he was a participant and that he was an active member of the conspiracy and there were several maybe the confusion that you can see the video and he went up the hill that could not amount to the fact that defendant's rights were violated and there is substantial prejudice out waiving the fact that there's overwhelming evidence against the defendant the prosecutor when when making reference to the video and it was in rebuttal in response to to the testimony the the prosecutor stated what the witnesses testify during trial and not only did that but he invited the members of the jury to watch the video in its entirety and to trial both of them had the opportunity to be cross examined by the defense and so it is a contention that of the government and respectfully that this court finds that there was no prosecutorial misconduct on the government's verdict form had a space in plank in which the jurors made no the termination as to what was the amount of drugs that there were proven to them in beyond chris reasonable doubt and as to that for the time frame that the witnesses had testified that these in the with were participating in the conspiracy and the court was very specific that as to each calculation the point was using the lowest amount of drugs that could be attributed to each defendant and the lowest amount of terms that could be each could be found in each of those controlled substances that were seized and were later later on presented to the to the jury  none of the defendants were in fact that this murder was not in furtherance of the conspiracy but only to take it to consideration for a limited purpose of examining want witness testimony as to the evidence make for owning and to attend all of that and and the reference was passing by the fact that one of the appellant's there in fact was seen carrying a gun on that particular day no additional evidence was presented as to the details of the murder in in in that particular act testimony as to the allegations that it was improper admission of evidence because the witness did in fact read if there's no additional questions we are going to to render to the rest of the a lot of time to this court is that there is overwhelming evidence that there was one single conspiracy in this case that the defendants each one of them knowingly in voluntarily participating in the in the charge conduct which was a conspiracy there were also some substantial and overwhelming evidence that they also engage in the in in the  in in this location if you thank you decided on august eighteenth of two thousand and ten which was many months afterwards on going to the court's findings that no specific evidence was ever presented however the demonstrated this supposed long standing district policy of not allowing the public into the courtroom was ever followed i'd suggest there was specific evidence you had four people who testified they were not allowed in and  scene testified and this is in volume three of the appendix two eighty six i believe  he was asked i believe you testified on direct that you would one point had to tell some people to move away from the door from the outside yes question those were people who were not jurors answer yes and were those people who are attempting to enter the court room answer they would stand by the door to look inside question and they were not allowed to come in and answer no so he did testify that he did not allow people to come in  the deputy sierra also testified that there he recalled nothing contrary to what he had described his tendency to keep people out of you refer to the policy of exclusion as a tendency neither he nor seen ever done on keeping people out or telling people to stay out they simply did not recall anyone coming in they did not specifically say we did not and not specifically were but the testimony of the people who said we asked to come in and we were told we couldn't  asked whether there is an affirmative obligation on the court to do anything and i would suggest that if the court after particularly after presley and augusta vega but even before that after owens that the the courts does have an obligation if it looks out and sees that all of the courtroom was full and here the court found that it was full with prospective jurors not with anybody else that could you have some a few additional seats brought in chairs brought into the well to allow at least some people to be in there at the beginning and should the court have instructed the marshals and court security people to let people come in to tell people that they could come in when jurors were when prepared when prospective jurors who had been dismissed were leaving so there are steps that the court could and should have taken in order to allow people to come in in terms of whether there was any kind of waiver by counsel i don't augusta cologne in christie where this court found waivers were cases were cases in which the district court district court had directly addressed the attorneys about a particular procedure of proceeding and they had remained silent i think we are under just plain your review here all of the attorneys testified that there was no strategic decision or tactical decision not to do anything it was just simply they felt that this was the procedure of the court and they were going to follow it  in terms of the misconduct argument i would like just to suggest to the court that they should take a look at the video of the incident and the courts and the prosecutor's closing argument in which it's specific rebuttal argument specifically talking about you saw with aria camacho going up the hill this is this meeting was important because it was the only piece of testimony that the government was arguing was corroborated by something other than the witness's testimony about rosario camacho's role or leadership in or participation in this organization there were no drugs or weapons that were seized from him there were no undercover buys made from him he was not identified in any drug transactions on the video so this was an important piece of evidence in the government's efforts to make him part of the overall conspiracy that they charge you sister regard him i believe with what i understood from my sister's argument is that the district judge found it was no evidence to support a multiple conspiracy theory of