to join in the pending cases of ruefully baker and baker because those are the only remaining defendants in the process what happened thereafter is that nothing happened for a we were not we were severed again mr donovan i went off on our own again because it read some of us out again we were then brought back in a status conference that we were required to attend where i made a oral motion to join in the discovery for as of judicial colony that's the order that was discussed in a previous article we were allowed to join in at that point we took part in all the discovery and even though there was no join you're in there and there was no intervention we were allowed to take part in the eviden part of the will leave to a man and we then have an order later on that says well they never amended so i guess they're out of this case and from that point forward you names of any names appearing in we work there is a twenty two thousand to order that you just referred to in which we're given leave to amend there's then status conferences in between and other things that go on but what pending most at that point is the question about the other pending issues and whether we're joined in those issues with or a lot of intervene or somehow nebulously joined in with baker baker and ruefully on the remaining issues and that was and then under some for seventeen the order then comes out regarding ruefully baker and baker saying they're done well your review of the record shows there's as lee no judgment as a notice of appeal that final week sending it over because at some point during that week judge reed becomes concerned that we got left out of the judgement and we should file a notice of appeal and i get that information through his clerk and there's nothing official about that but that's why we end up filing on january twenty first two thousand and three our notice of appeal on january twenty fourth two thousand and three judge reed says ok i've got the notice of appeal i'll accept that  continue to be wandering off in the wilderness you know as the poor stepchildren of this case at times because as your own as well also note on april thirtieth of two thousand and three this court allows me a lot of the two appeals to join thought that this juror and that bailiff that their testimony is not credible on the issue that they had nothing to do with each other i find that not credible i find it the opposite but they're totally unrelated i find their if i find that part of their just one incredible now i'm just going to address this well they're getting up there they're giving me their word there's nothing the verifies this and in fact the facts circumstances because of the dates and the times information about whether this d s o had helped had moved furniture into the house whether he had an actual address for six months during the course of the last or the last six months of the trial at the met at the  did believe what i believe some of her coworkers and that she was an extraordinarily careful person and was very careful about the jury and about not talking about things she was really quite extraordinary says yeah i don't believe that i think they have i think something was going on i don't believe he was residing with or he does but i think something was going on between him had a time and that's and that's inferred by by the fact of how quickly it happened that what is a situation is that judge reed looks at that and then looks at the second prong as oh my goodness what if i have to try this case for sixteen months again which your honor is won't let him because of what you said in the baker decision already and we only have one defendant that point but i think that the inference then is not carried through i don't think that he addresses the second problem in the cases that we've cited in our brief and i understand that my overtly or less overtly to the other members of the jury and i believe that that's that's that second problem it is a much tougher prong question there's no question about that that's a much tougher prong for us to meet but i believe that that's where unintentionally judge read backs off because i believe the information and the appearance itself is clear that if there are that  had access to and contact with a variety of information that this juror was prevented from seeing by proper court rulings and that those are things that this  this so clearly could have could have and we believe did by the very inference of what the information is that was provided did at least discussed if not in detail at least peripherally to a wall regarding witnesses and questionable testimony and things like that defense strategy things like that that juror should never have been privy to that we believe that's what we know that if you that he have his free access to that room he didn't have free access to that room but well i'm not sure that that's true either because the access throughout the building when the defense attorneys are not present  problem there is is this confusion about we're which petitioner was where in the process and whether there was a discovery motion because as you see in one of the orders that we provided we were told that we're not allowed to do  good morning again gregory gamble behalf of the united states representing the government in this matter i'd like to make one correction on the record with respect to the relative newcomers to this case although i excluded by court order from the courtroom from the courtroom during that time the proper scenes were under way yes that's correct that's my understanding that he has sole function was to guard the jury and he was not privy make a specific finding on that i don't i don't believe you made a specific finding on that because it wasn't an issue mr flanagan as i understand it to requested that this court security officer not specifically not be present in the courtroom and just read granted that that request and that happened big beginning of the case one course curio officer harris was tasked with the responsibility of taking care of the jury the court's order of july sixth of this year was provided to me this morning as i mentioned by mr gibson in our cushy it that this court asks whether or not final judgment was entered by the district court with respect to the thirty days expired and mr bought a farm did not me and his twenty to fifty five petition trial court in a minute order that does not appear in any of the excerpts of record entered this minute order on may twenty third of two thousand and two and it's a dark at number thirty three fifty order number thirty three forty two filed on feb twenty eighth two thousand and two thus the status of the case appears to be that all remaining claims have been dismissed without the filing of any amended twenty two fifty five motion and effort to cure the deficiencies we set forth in our order number thirty three forty so it appears to me that when the court he shewed its final order with respect sense that all of the issues relating to his case of have been resolved but he's given leave to a man to correct certain deficiencies he's given thirty days thirty days pass he doesn't he doesn't do that when when a complaint for example is dismissed without leave to amend with leave to a man that is not appealable and if you don't amend within the thirty days it's still not appeal got to get a court order saying something act you must have a court order after that or we have this funnymen an order that comes later which says it appears that such and such is true i don't know judgment at all as a component i do agree but what mr bonafied appeared appeal from was not any any well what do you feel from actually was the december or how we should take a liberal approach to people filing notices of appeal and that sort of thing and i did my my darndest to try and resolve this issue and  case is precluded by the e p a that they they didn't file timely anything that happened in their case seems to me would be void ab initio so then the question becomes well if that's true then how can mr bought a farm art coattail something that happened in their own case and file a notice of appeal from something that should have been voiced from the outset he had his own case defendants the only final judgment that counts for him is the one that gets filed with all the names listed on the caption in the criminal case that's the only thing i can find labeled final judgment if you assume that  him in the caption with a final judgment as to him yes correct otherwise we don't mean to have a final judgment for anybody in this case so if we don't treat that is there anything else labeled final judgment in anything because that's even in the criminal case anything else in that in  r case is not that i'm aware of so that's the only thing that we deem that to be a final judgment for the purposes of the hadiths cases then that's the date for him the fact that his co defendants maybe should never have been there in the first you said a few minutes ago in rolling rolling around my had you talked about the order of the district court that this not be in the courtroom and i heard you say that it sounded familiar and i want rummaging through my papers i can't find a more specific reference to that you have in mind something that's in the record particular or some specific order by the judge that spoke to that my recollection if they have the fact is crystal clear but i can't tell now whether or not it was based upon something i read in the record or when i met with a trial counsel in this case and discussed the matter with him i'm inclined to think that it was something that i've already talked about the merits of the the juror romantic issue and i won't i won't delve into that again with respect to discovery and mr  yes not filed any separate motion to compel discovery if on of one properly files a motion requesting discovery the court will consider the question of whether good cause has been shown in deciding whether to grant him discovery in this case bonafide was given thirty days to file a discovery motion i cannot find anywhere in the record where mr bonafide did in fact file a discovery motion mention discovery whatsoever which leads me to conclude that that in fact mr bond fund never did file his own independent discovery motion and therefore he has nothing to appeal from to this court with respect to the discovery  motion seeking the court delay in considering his twenty to fifty five petitions so he could take part in the discovery join in the discovery motion that have been made by his co defendants and participate in that discovery  we want to do the same discovery that mr ripley in the bakers were doing because our issues were identical and so when we were then thereafter at some subsequent point to this order to do a motion for discovery there of course confusion because we'd already done discovery and on the happiness above and quite honestly i couldn't figure out whether i was supposed to file a motion to get permission to do the discovery had already done and been accepted by the court or whether it was for said judge we need to take some additional discovery on this particular issue because it would allow us to show x y and z and those are the things that are outlined in our brief that in fact i think are more