asker thank you and we know you were on time and we appreciate it as you always are please the court laurie barrister assistant federal public defender on behalf of gina oscar issue i will be discussing this morning is whether to just record actions in removing the lone holdout juror violated mr askers due process right to be found guilty only upon proof beyond a reasonable doubt as well as a six amendment right to an impartial uncoerced jury did the juror no did the judge know that this was a holdout juror as i read the transcript he was pretty careful to say don't tell me what's going on well there was two different discussions and the first discussion i don't believe that on monday the first day he knew that she was a holdout juror although she did say i cannot agree with what the other jurors are saying so perhaps he didn't know but by the second day he certainly because the four person identified her and said it's miss ill and it counts three and eight and there were fifteen counts so the jury had reached verdicts as to thirteen of the fifteen counts the constitution requires a jury that is capable and willing to decide a case solely on the evidence before it and the judge ever watchful to prevent prejudicial occurrences and mr oscar had neither from the very beginning of the deliberations in this case on a friday afternoon i juror another juror complained to the judge that she was getting pressured she was being not she's getting nazia heated and she was getting physically ill as a result of the pressure being exerted they're not as you indicated those were two different jurors right it was not the same one this is the first day the deliberations right but it turned out that that person was not the juror who was removed different right the deliberations resumed after the weekend and soon after the judge received a note saying does it have to be a majority decision or does it have to be anonymous or is majority enough and then he received the note from ms hill stating that while she stressed having no biased that is changed and she wants to be excused so over objection the district court interviewed miss hill she explained that the other judges had biases about certain kinds of people had already made up their minds and were not willing to discuss the case from the very beginning when the judge said well is there anything specific that that a juror has said she said not directly the judge asked her whether her beliefs were based on the evidence and the law and she said yes she said i just do not agree with the other jurors so maybe in answer to your question judge biogs on the first day the judge despite the government's request to dismiss her and mr jean's motion for a mistrial the judge said that there was no basis to remove her instead i'm going to give an allen charge and the deliberations continued for the rest of that day they start the next day now we're on the third day tuesday they started around nine o'clock in the morning everything was going along about twelve thirty the judge got three different questions from the juror asking to see the guns asking questions about possession and also questions about a witness's testimony the judge answered those questions just before five the court received a note from one of the jurors stating that one of our jurors wants a hung jury as to counts three and eight and she isn't following the law at this time mr oscar move for a mistrial again which was denied and then the court interviewed the four person establish that it was miss hill that it was only counts three and eight he said to the juror to the four person has she said i'm not going to follow the law no has she said i'm not going to be fair or i'm going to be biased no but it is your fine it's your feeling that she is not following the law yes judge all of us feel that way so  next the court interviewed miss hill he established that verdicts had been reached on many of the counts she said she wasn't sure if it was three and eight but verdicts had been reached and then he asked her in the verdicts that you are not in agreement with the other jurors do you believe you were following the law and applying it to the evidence and she said i try to have then he asked her are you following the law and you have a different opinion about what the results should be are are you absolutely refusing to follow the law and she didn't say that she was refusing to follow the law she said that i don't think that some of the decisions i made i really did follow the law there was a lot of emotions it was back and forth some of the stuff i can't say was fair to the defendants and she told the judge that it got a little better after he spoke to them i guess  charge things cooled down a little but it's just butting heads and we're not getting anywhere she told the court that she was a civics teacher that she had come in thinking that it was a system that was fair and equal to everybody but these people come in here biased they have feelings about people that are different from them you look like me meaning her are and whatever you say must be wrong the judge said well is there anything objective that you can point to or is it a feeling because they have a different view of the evidence and then she told the judge they're disrespecting me as i speak they're making little noises i'm trying to speak but there haha i want to go home i'm ready to go i wish as i was out work she said they're ready to go home i'm ready to go home and we're stagnated here then she started crying and told the judge that this bullying never would have stopped never would have slowed down if she hadn't come in there and said something and she's been hurt by system she believed in she thought everybody should get a fair trial and she doesn't think like them the other jurors because they just want to send everybody to jail and they don't care again mr oscar move for a mistrial stating that intimidation has no place in the jury room and instead the court dismissed miss hill and seated another alternate who who was also  black female this was ever the case law is clear a district court should only dismiss a juror during deliberations when no substantial possibility exists that she is basing her decision on the sufficiency of the evidence and in a bell this court stated that this must be a beyond a reasonable doubt standard the court's actual findings in this case do not rise to that level first he found that m judge what mrs hill was written was refusing to deliberate she was not refusing to deliberate she had reached verdicts in thirteen of the fifteen counts simply found as to those other two counts that there was insufficient evidence in excusing miss hill the court stated that this is the second time that her possible bias has been brought to our attention and possible bias is not actual bias and it's also not proof beyond a reasonable doubt he said she couldn't identify anything other juror said showing that they were biased she told the judge these are intelligent people they are not going to come right out and say i'm not going to listen to anything you have to say just because you're of a different race than me he said that by her own admission she was not following the law but she told the judge that in the verdicts that she did it did not agree with the other jurors she tried to follow the law and with the verdicts that she did agree with she wasn't sure maybe she did not really follow the law but still is that is that where the the judge was referring it's on page one of my references page twenty seven i don't think that some of the decisions i really did follow the law is that probably what he's referring to yes that was that was the decisions that she agreed with the other jurors and we don't know how many but but why why do you say that that the what he referred to he asked are we talking about the decisions that i'm looking at page twenty seven  line fourteen fifteen was the quote i just gave you and i didn't say i'm not focusing on something that would imply that that has to do with the ones that were agreed to she answered him i don't think that some of decisions i really did follow the law and he said are you talking it goes on are you talking about the sit ins you made where you agreed with the other jurors or the decisions you made that you did not agree with the other jurors she goes on that page twenty seven the decisions i said i agreed with that it was a back and forth saying but decisions i agreed with well i'm not sure the it was back and forth whether  that that ok but that's what you're referring to i can look at it thank you yes judge and again you said it i mean that is still not proof beyond a reasonable doubt that she was not following the law did did either see the the question of the standard from eleventh circuit precedent did either side ask the judge to state what standard he was using but it's not necessary for the judge to have stated under the eleventh circuit case law as long as he is required to find beyond a reasonable doubt that there was no substantial possibility but does he have to say those exact words no substantial possibility not under the ok that was what i was referring to thank you finally he pointed to her diatribe about injustice going on for more than one hundred years meaning that she had some humungous racial chip on her shoulder which was making her on able to participate just because you have opinions about the hundred years of racial inequality and injustice in this country doesn't mean you can't deliberate or follow the law and so what if she felt protective of her people she was making sure the law was being followed and she had in fact returned thirteen of the fifteen counts a bell specifically cautions about this exact situation where the other jurors in favor of conviction are trying to strong arm the holdout and when that doesn't work they falsely report to the judge that she's not following the law unlike the other court's decisions in a bell ug a sting and godwin where the district court interviewed all the other jurors here he just took the one of the more person that we all agree that ms hill is not following the law and as the judge a judge bug's pointed out the standard in reviewing the district court's findings on whether good cause existed is deferential to the district court this court is not required to rubber stamp its findings a review for clear error does not mean no review and particularly in light of the recent supreme court decision of penna rodriguez which recognized that juror misconduct strikes at the very heart of the sixth amendment the court must be extra vigilant to ensure that racial prejudice or intimidation has no place in this jury room the only other issue i had was that once he removed miss hill then another juror had a family member who was dying and then he removed her also brought in a so now we have to alternate jurors and he did not he did tell them to begin their deliberate deliberations a new but unlike the other cases in this district he did not ensure that they began their deliberations and knew he did not ask the jurors whether they can start from scratch he didn't ask the two new alternates who have been gone for five days now whether they have read anything about the case or had any exposure to experience the evidence about h didn't remove the original jurors notes he did remove the original jurors verdict forms he did give them new verdict forms told them to new the use the new verdict forms and he did not reince struck the end entire panel as to those alleged of the jury or we don't know that from the right we don't know but from what i can gather from reading it but that's just my opinion she was the only black on there because he made a point of when he removed her stating ok now we're bringing on wasn't well she was a she ok the first one was a she but the second the second one was a thought you just said another african no no no the the first person he replace miss hill with let's just call up the next person right it was a black female that's what that's what i meant to mean he wasn't so like i'm that alternate she was the next ultimate in line right and then the next one i don't know the man of the woman ok what it was basically this violated this was inconsistent with mr six a member right when the four person announced the jury was hung as to three and eight there should have been a mistrial as the word stated in re our jury system has not malfunctioned when the jury cannot reach a verdict there was no necessity for the judge to invade the province of the jury or the private you save time for a bottle so if you don't have any other questions about issue two i will just stand on my brief that you don't want even a thing by joint or th adopted many of the arguments that you know oscar has put forward before this court that particular issue in this case concerning juror juror hill who was the hill who was the juror that was dismissed is particularly important to mr bellew because the counts that the juror or miss him or the jury indicated that they were hung on and were counts three and count  count three and count and eight apply specifically to mr bellew count three was a a drug distribution case in count eight was a possession of a firearm by a convicted felon i think it's important for the court to realize that the rule that governed these proceedings and whether or not miss hill could be dismissed as a deliberate and your rule twenty three b of the federal rules of promote procedure and that rule basically says that if a judge finds that it deliberating mature for good cause can no longer perform their duties then the judge may dismiss that juror and proceed with eleven jurors good cause though is never defined and that's important as far as this case is concerned because there are different standards that the district court has to apply in determining whether or not a  jury that's deliberating should be removed for instance if a juror has a heart attack certainly under those circumstances it would be good cause for the judge to remove that particular juror or if god forbid a juror who's on a deliberative jury should get arrested in the middle of deliberations certainly under those circumstances that would be good cause for the judge to remove that particular juror however the appellate courts in this court's pacific we have pointed out that when you're dealing with the issue of no if occasion nullification means basically that you have a deliberating juror who is not following the law and not applying it sufficiency of the evidence in that case the standard that district court has to apply is much higher than any of the other standards that the district court has to apply in removing a deliberative juror in their case as this court held sufficiency of the evidence and in the able court in the able opinion this court made clear that as far as that standard is concerned that is proof beyond a reasonable doubt and that's the standard that should have been applied in this particular case proved beyond reasonable doubt that miss hill was not basing her opinion on anything other than the sufficiency of the evidence and the law that the court has applied now as far as that case is concerned abel referred to two other court cases in its opinion it referred to united states v thomas which was the second circuit court case and also  united states v brown and in united states the thomas you had a similar situation to the situation that you had as far as mrs juror ms juror hill is concerned in that particular case you had a black  who throughout the summation of the defense consistently said yes yes yes and indicated that they had agreed there was a number of notes from the jury to the clerk indicating that the deliberations were jurors were racists and so forth the court in their case questioned juror number five and your number five stud that he was following the law and basing it on the sufficiency of the events and the evidence had to be sufficient before he could find before beyond a reasonable doubt that the defendants in that case were not guilty and in their case the judge dismissed the juror claiming that he didn't feel that this particular under any circumstances could find the defendant guilty and the second circuit reversed and the second circuit basically said that one of the principles that's involved in nullification is jury secrecy and the court has to be very careful not to invade the seeker's process of the deliberations that are occurring in the jury room and the court in their case in the thomas case said that if there is any evidence they are the juror is basing their decision on the law and the sufficiency of the evidence then the juror cannot be dismissed and the second circuit reversed that particular case in this case would you point to anything in the interrogation of juror hill that was as a strong and eloquent as the second circuit case on thomas that is to say at least by my reading of it there's at least a fair amount of back and forth about i'm biased i'm not biased i wasn't bias but now maybe i am and certainly nothing is as eloquent as as you just quoted me from thomas well i dance for the court this way first of all in questioning miss hale she specifically said over and over again that she had based her decision on the law and the sufficien of the evidence now judge scola when he made his decision to remove a judge or jury hill said that she had engaged in a diatribe and that he she had to you monkish racial chip on her shoulder and that is the reason why he was dismissing her what i would put forward to this court is what may be a diatribe to a judge or a lawyer to a common average person is not a diatribe counsel if you use said that she said she was basing it on the law on the evidence can you point me to your best quotation for that if the court could give me a second  well first of all at one point the court asks are in the first discussion he had with her earning her feeling that she was biased the court says to her sounds like you have an open mind in her  i have an open mind unquote and she says since i know they don't have an open mind i had an open mind i don't have an open mind now so that sounds contrary with the rippin the first one at least i didn't know of the see if you had something better in the second one well i would point out to the court as far as that conversation is concerned with judge scola that would seem to indicate to a reasonable individual that basics basically she went in there with an open mind she was discussing the evidence and applying it to the law and then tell that that's fine i just wanted to see if you had a a quote that i had missed more like i do at one point in time when the court is questioning this hill and this is after the al judge skoal is question sounds like the middle of page twenty seven do you think you're following the law and acting in good conscience and then she says i don't think that some of the decisions i really did follow the law and then i had the  your with your co counsel or your your co defendants counsel so if they if that's the part you're talking about then i've i've got it so go ahead with your time i think would she if the court reads the statement that mrs hill made to judge school at that point in talking it's important to remember that she had already been through more than ten hours the deliberations with this particular jury it was obvious that she was in the minority whether or not she was the holdout your or she there were other minority jurors that held her position is unclear because we don't really know what was going back there but which she stressed over and over and over again was that she was basing the law she was big cedar decision on the law and the sufficiency of the evidence and that when she did this and tried to discuss this with the other group of jurors they were entrenched as far as their position is concerned that she was trying to discuss this and argue these points with the other jurors and they were disrespecting her so when she says i think i made a fair decision but i'm not sure whether or not i made a fair decision it's important to remember that that was she made that susan after the court had already given her the allen charge so in all probability when she made that decision i think i'm following the law but i'm not sure whether or not i'm following the law i think she was referring to whether or not finding the other defendants guilty on the other counts was in fact fair to them and at some point in her answers to the  she indicates that she feels that she did give them a fair trial i can only imagine then it must be very difficult for a juror who is in a minute in the minority especially a holdout juror or i'd say hey out an abiding conviction so far as their opinion is concerned and have to argue against eleven other individuals this obviously was a very emotional situation i don't think that miss hill under these circumstances should be paralyzed because she emotional about deciding whether or not these individuals deserved to go to jail everything she said indicated that she was doing the best she could i think it's also important for the court to see the tying he agree with the reading of southern district of florida anybody has to do that our number asked for a mistrial a number of attorneys in the record asked for the court to declare a mistrial or counts three and eight and take the remaining eighty to take the verdict on t amendment right i'm working with you that's why we have a large image here today because it's a difficult case for you here in in this situation i mean we can all guess on what the verdicts were on the remaining cou three and it's concerned but nobody knows for sure what those as the the and the deliberation at least was stated to start a new that is the new after the new two new jurors came in they could flipped the people in either direction because we don't know what the original set was assuming that they were all decided right that's very possible and i think also what's critical here is that there's a time line i mean in the able case all right the juror the judge in that case first of all made a finding on the record concerning the standard that he was applying no possible reason to believe that the juror was basing the decision of the the augustine case which is cited by the government again the district court in their case before dismissing the juror made a finding that there was no suspense or possibility that the juror was following the law on the evidence in this case there's no finding whatsoever as to what standard judge skoal applied in dismissing juror help was he required to because i asked your colleague the i thought the similar question i thought i heard her say that that  he didn't have to but that our review for a clear error is not no review at all the way a with we would apply some searching review but nevertheless under the clear or standard well from that is that your viewers or a difference of you know i have a difference of opinion because every case i read concerning the the district court specifically spelled out the standard that it was using in order to find that the judge or the juror was not found i mean that's certainly helpful but i guess i'm asking is that required under eleventh circuit precedent well i can find no precedent that says that it's required but who in the united states which is which is a supreme court case pacifically says that before the court can decide whether or not a district court abused its discretion the appellate court has to know what the standard the what apply certainly the district court in able and the district court and augustine both cases out of the southern district of florida specifically made the finding on the record that there was no substantial possibility that they were basing their review or their decision based on the law on the evidence when one other question judge all that raised about whether we knew that they had agreed on the others the the note as i understand it the note that came out at one point says a juror has expressed that the evidence is irrelevant and once a hung jury four counts three and eight is that the only reference that we have because that seems to me to be possibly ambiguous she wants a hung jury on those two and we may still be deciding the others is that the only relevant piece of evidence as far as the decision on three hundred eight yes yes but i think it's also important to realize that the jury foreperson when he was questioned by the just the court specifically as to whether or not she had used those words i'm not following the law i want to jury the other i'm not going to follow the evidence in this case had to constantly say no and the other thing that is different from this case than in the able case in the augustine case is the chain of events in this case you're out of time you've got to have hers or thank you i appreciate thank brief in this case your honor as the court's been discussing with the appellants rule twenty three allows a district court to exercise its discretion to dismiss a juror good cause and good cause includes  situation in which there is no substantial possibility that a juror is basing his or her decision on the evidence and the law in a bell itself this court noted that a substantial possibility means more than a than a speculative hope this of course decision on whether to on whether to excuse your is reviewed is reviewed for clear or now this matter first came to the district court's attention on the second day of deliberations with the notes completed and submitted by juror number eleven the disqualifying juror herself and that note read i respectfully request your attention to a matter concerning this case i'm aware that i stressed having no bias concerning this case however this has changed please excuse me from this case so straight away in the it right away in the initial consideration of this issue the juror has described herself as having been biased to the extent that she should be disqualified from the case now she was actually accusing other jurors of of of being biased it certainly of note that at no time during that initial quote colloquy did she of her own volition indicate that she was taking her position based on the evidence or the law the best that that juror could offer in that regard during that initial colloquy was a series of three just straight yes answers in response to what were effectively leading questions by the district court about whether she was properly doing her duties and and based on her position on the evidence in the law to which she ultimately did answer yes a couple of times that's a documentary of five or nine pages seventeen and eighteen about which judge barnes was asking a little bit but other than to take the other side of that coin the four person couldn't say directly that she wasn't following the law either well that and i apologize ron or yes and  the four person when being instructed when being colloquy by judge school had been in instructed directly to answer yes or no and that was because the district court of it was understandably inclined to exercise a substantial amount asked the foreperson has she used the words meaning miss him number eleven i'm refusing to follow the law or she just not agreeing with you and that's your assumption and for person answer i don't know how to say this but i mean without the dish of course it will let me ask you a question just answer yes or no has she used the term i'm not going to follow the law and the foreperson answered no not in those terms and i think that's important to clarify because i think those in counsel ms barest suggested on your her argument that the foreperson answer just no but actually the answer was no not in those terms and you continue with that is your court asking ok and has she ever said i'm not going to be fair or i'm going to be biased and again the answer was not in those words why is why isn't this a case where given that they had apparently reached verdicts on all counts except two because not only did not only did the four person indicate that but in response to one of the questions judge boggs asked she also says that in response to a question from judge cola why isn't this a case where one juror is that loggerheads with the others on two of the counts and they just one agree and the people on different sides that divide think that the other side is being unfair and irrational and biased well they may have been to agree on some counts but there really i think of a rather thin evidentiary basis for concluding on which counts they may have been able to agree to i know the juror sent a four person sent a note indicating that there were two particular counts as to which there were a problems reaching a unanimous decision and we have no way of knowing whether that could have changed subsequent to subsequent to that in the substantial additional deliberations that occurred after that even prior to in the in the second interview this may and i think is what the judge jordan was a diverting to the judge says so is it my understanding you've been able to reach a verdict on many counts except for three in eight she responds i'm not sure of th counts but there were about a few that work is that the only part of the jurors colloquy that adverts to that that's the only part of the jurors quality yes your honor and the only other indication would be the note from the foreperson from from records to you but again the jury deliberations are could be quite fluid we don't even if they had breached even if they had reached what they may be at that time considered to be final decisions on certain counts counts other than counts three and gave so i think it's quite clear from the record that any inability to reach a unanimous decision whether whether it's to count to three in eight or or any other counts were not based on the jurors view or eleven's view of the evidence or the law as applied to the evidence but really everything but juror number eleven said among other things in the call in the course of her second colloquy with the district court she said i don't i don't think that some of the decisions i really did follow the law i just you know too many emotions are involved in it and of course of the emotion would be entirely impermissible  factor to influence deliberations that's on page twenty seven a documentary for four on the same on the same page juror number eleven said some of the stuff i you know i can honestly say that i you know that it's fair to them you know i think what decision i made was fair to them but then it wasn't fair to them and i had to also clarify something here that ms barrister suggested mr baer suggest both in her brief and also in her argument or at that when juror eleven said that she was not being fair to them that she meant to the defendants that she was not being fair to the defendants and that's that's not supported by the record whatsoever i don't know i served a trial counsel in the case i don't know that there was any indication in the record you know one where the other of to whom mr ms hill was referring when she said that but there is certainly no indication that she was referring to the defendants as the parties to whom she could not be to be fair in the case and so what were the other possibilities that the government so in the end i don't think it even and i'm not suggesting that that's you know that that was recorded in the transcript either but you know certainly through a not the contrary wasn't and so in the end i don't think it actually even really matters if the identity of the party to whom you're eleven cannot be fair if you can't be fair to both parties and she's not qualified to serve as a juror that wasn't the only thing that ms that ms hill said she ended up she next page i searched myself and i i cannot deal with that foolishness you know you're dealing with too many emotions and too many too much baggage and it's just hard dealing with that she criticized the criminal justice system in general at some length she you know she opined i came in here thinking blindly that we had a system that was fair and equal to all people and  skipping ahead a bit she did she she commented you know my people didn't used to be here but since i'm here you know this is what we're all about we're all about freedom and equality and that's not true that's not true if she says she did you comment when you put me in  situation and i know i know what people how people are thinking that i can't i can't i can't do anything but say look you know it's not going to be like that she went on the moment page thirty she said there's a situation where i can't even be fair because they're not fair no i'm not fair yes i am biased but biased but i didn't cause it i'm just defending myself and several pages ahead on page thirty three again documentary for four she said i you know i'm not a good juror i'm not because i've been hurt by a system that i really really believed in i believe that everybody should get a fair trial oh lord and it's not true and it was about it was at this moment that ms hill dissolved and in tears and it became it's noted in there th interaction that we have with juror number eleven years said there was a note yes your honor a documentary five or nine page seven approximately ten am on monday june ninth and the first interaction was the receipt by the court of a no ok i now see it i respectfully request your attention i'm aware that i have stressed having no however this is change please excuse me from this case then it says r describing herself as as being biased such that she and then you say i don't think she's asking to be excuse and you start asking for all time that right then that's correct my head and see an alternate i had an excuse or she's saying right there and handwriting is turnout i'm aware that i've stressed no bias however this is change please excuse me the judge doesn't leap at the opportunity to correct you are that he deny the government's request and the government that requests i know before she just indicated in the note that she was biased without knowing towards or against which is  note back correct and actually the intervening period of approximately a day and a half between the first note and colloquy with ms hill and then the next no with a four person the ra actually several inquiries and questions by the jury as a whole asking to see certain evidence i think one of them requested a transcript of certain testimony and so forth so the so in that intervening period there were some additional other questions just about the evidence and not pertaining to this issue with george or number a lot i think when the court considers the particular to the clearly erroneous standard by which this court refused reviews the discourse decision reflects the fact that the district courts of terminations about whether a juror is following the law or not is a finding of fact and and i think the reason for that is it's very important for  not once when i looked at the transcript and i noted that the colloquy took about seventeen minutes not all of which but most of which juror number eleven ms hill was permitted to speak in narrative form about the issues that she was having with the other jurors not once in that seventeen minute colloquy did juror hill mention anything about the evidence and the law it would be one thing if ms hill had said something like i just i don't believe that i don't believe that he really gave the statement of i don't really believe that they found this gun there in the end the other jurors all believe it and we just can't we can agree there's nothing like that there is no reference at all in a very lengthy narrative portion of her colloquy that discusses anything about the evidence or the law instead what ms hill did mention many times was the overwhelming power of her emotions that she found to have infiltrated her decision making in the case she mentioned several times that someone with her disappointment  the criminal justice system overall and also her felt a need to i suppose to to to defend herself as she said and after the first colloquy miss snyder was there says the government's position is the same asked to be excused because of a bias and she should be excused because of her by us she said she answered questions during jury selection about her previous case apparently she'd been on a previous federal case and the hung jury and anybody knows about where anybody is on the verdict is that correct it was before any note from the four person yeah right so this is just first have her asking to be excused and then we have this own statements identifying herself repeatedly as biased repeatedly as considering impermissible factors like emotion i just say this a miss paris can probably tell me it's irrelevant but the judge does say in twenty years as a judge i've never moved to jar and i hesitate to do that and the judges i don't know where that's accurate or not so he keeps me and has not to do it and keeps going back at it well i don't i do think it reflects and i i don't know me please the court i just have a couple of answers to the questions that the court raised first of all judge by the district court is required to apply the the the standard of no possibility exists no substantial does he have to say the words i find that no no but he doesn't agreement ok now there was a question as how do we know that they had other verdicts as to all the other counts i point the court to page twenty three of the transcript for a four page twenty three interview with the four person have you been able to reach verdicts on all other counts yes court is it only those two remaining count a i don't know of that it matters to the outcome here but mr fourteen and fifteen actually that was fifteen counts so he's only charged in fourteen and fifteen but he's not in three in eight he's not in three and a that's correct yes three is  know just know how it came out you know how it was ok and then with respect to the just proceed with the love and then we probably could have taken the verdict there but i think we started over so we can't go back to what it was it could have been really we don't know what it was a rape and also the district court on when he interviewed miss hill about her note when she said i express i have fifteen five o nine i'm trying to figure out why you think you have a bias what you're telling me is i have an open mind and other people are biased and then he repeatedly asked her in that first colloquy do you believe that but then but then you quote the judge accurately but her response at least the grammar is i had an open mind and then he says i had an open mind i don't have an open mind now i mean the judge you're right at lines fourteen fifteen sixteen the judge is kind of giving her a life raft and she is contradicting him when he says i have an open mind she says i have an open right but then he goes on to say do you think that the people that these people came in and from the very first second they were open they weren't open to a discussion and she said they already figured out what they're going to do he said are you saying that they're close minded and not willing to fully deliberate yes i do sir and then he said do you believe that you have a strongly held belief after you have kept an open mind after you have fully discussed the case with the other jurors this is page seventeen and you and the other jurors just can't agree yes i believe so and you believe that belief you have is based upon the evidence and the law yes are i do you're not just taking this position to be against the other jurors this is your is your own personal belief after following the law yes sir about the jury makeup here but he says her comments about everybody being the whole juries against me he points out that our bias for isis is as well there are two other african american women that are on the jury you're not the only want oh i don't know the fastest to discredit her saying everybody is against me what do you think it's about or maybe it's are all of us to be honest with you judge i don't remember seeing and i'd like to answer your question your honor judge hill i think whether or not there were two other black female jurors on this jury is not relevant what's relevant here is whether or not miss hill who was chosen as one of the jurors by both the defense and the government was impermissibly discharged just like we had stopped did just that first note she says i can't be fair i'm biased please excuse me i thought i could be i can't could they have it could the judge of excused her at that time though i don't believe the judge could and that's based on precedent in the abel case because the able case as i indicated originally cited to two other cases united states versus thomas which was the second circuit case and also another case which was united states versus brown which was a district court case i mean really isn't isn't that love the first interview if anything the judge is trying to rehabilitate her right i mean those questions which i think your adversary use the words leading questions they sort of are but he's doing his best to keep her on the way i read that first interview well i certainly don't think that george school that was doing anything but following the law as he understood as the court had made clear before judge scola who i've known for a long time i had the privilege of working with i wasn't i wasn't saying something wrong with that because the standard really should lean in that direction well it i think united states the brown which were side of the in the able court basically answers or squarely addresses the issue of when a juror comes out and says you should dismiss me because i'm biased say well in united states versus brown you had one this is a complicated what does it say that judges posted it well the judge is supposed to conduct an investigation and determine whether or not the juror is applying the law to the sufficiency of the evidence and reaching their decision and if there is any specific question as to whether or not he's doing that the presumption that the court is to take is that in fact he is applying the law and examining the sufficient evidence this court has held over and over again that the court presumes that jurors follow the law so there's a presumption that miss hill in this particular case was following the law in the brown case the juror at issue sent a note just like ms hill did to the district court judge and said i need to be removed i'm biased so the district court brought him out and questioned him like you think you're biased and you specifically started to discuss the rico act the way the rico act is written to sufficiency of the audience as far as the rico act is concerned and the court when i'm told that he doesn't circumstances of the accusations of ms hill i know that two of the remaining tourers of the eleven are african american women and he's just saying normally i wouldn't saying about it but under these circumstances the accusations ms hill is making about the jury he notes it i don't know whether it's relevant or not but i did want to give you that record cite the cases submitted to move out of the final