rule thirty three is there a number of a large part of the evidence some stanch aiding our rule thirty three request our motion was left out twelve years now with the internal revenue service and they during during the term of that dispute they hired several experts in the city of reno to try them on the street now the number of problems that existed in their affairs and during that period of time paid literally hundreds of thousands of dollars to the government to make sure that they they did not have the problems that they faced certainly today backs or you know or to the gallery like in like this and other places and throughout the trial there were a number of people that were sitting near very near to the jury box and following following the this matter was up on was up on appeal we received some information actually a third party who came to us and said that she was working for somebody who was who was a stranger and they said th and and proved at least another point i guess not other people but it to our point that these people didn't owe any money in fact they were owed money and they were part of just kind of a mess and a vendetta that existed because a whole bunch of and we feel that there was some error we should have been successful on a little the reasons that we weren't successful is because we felt the court applied a rule that that we understood work differently than it did in which is which is how  w sometimes works in particular we believed that if you know if a if there was a contact any type of the contact between a juror and a person on the other side that it would create a situation where the burden of proof for prejudice which shifts then to the government and then the government would have the burden of showing that there was not any type of prejudice that had occurre up every day we believe that was ten and they say it was seven people showed up and then these people think they think they were trying to get their message across and the message that district court's decision that the you had to show that the agent's intended to influence the jury is that one thing you're claiming just ok all right the judge made a finding of fact in that fraction without them staring directly into her eyes that she has to turn her body to get out of the way something so that she does not become intimidated i think that's more than  of an objective standard what is the test to think should be applied i think the second test should be applying then once once it's determined that there are there is what i call a contract but what we've described that then at that point in time the the judge has an objective standard he looks as if he and he looks at everything is that he is unsure and says will this cause me consternation in performing my them could not be discussed ok and the parts that couldn't be discussed were basically taken out and so we were left with other things that we could discuss and that gets and not gets into an errand or under rule thirty three  you know she she was she was intimidated for the first couple of weeks if i remember correctly well it's not about her and at that point in time at that point in time she turned her head away and she case which it was the case i think the last sixteen sixteen days and she should have been allowed to have a fair trial during the entire sixteen days she shouldn't have been intimidated during those sixteen days because i don't i don't recall you tell you honestly i all i know is that in page thirty eight of my opening preach the question was at the beginning when it was occurring in the first couple of weeks did you staring that was going on going with and it was in the trial and and there were other people within the courtroom i don't have a list that also stated the same thing but let me make one point in one point i think is very important is before before we got going on this whole process and you know again and the new thirty a rule thirty three motion on we had affidavits and we were our affidavits were restricted and we were told we couldn't go into certain areas where you have an appeal any of those rulings i felt we had but i guess we haven't if you don't think so but we saw informed the witnesses that certain things could not be discussed much like emotion and women e ant for instance and if you take a look at the vicky walker testimony she says she was intimidated for two weeks because of that to me in my mind if she's been terminated for two weeks i'm concerned because to which my my client may not have received well he's entitled to under the sixth amendment and if you take a look then at her or her  i think that what she was referring to is that as time went on in the trial she described how she stopped looking towards these people that were staring at her well first that quote broke because the first question on the top of the period if you  glaring at the jury and this one's very unsettling to some of the jurors also given the behavior of the i r s towards the rutherfords over a nearly ten year period we were aware that the i r s could make it him did not testify and it says one of the other things discussed during deliberations was the fact that mr rutherford did not testify several jurors wondered why misrata mrs reference would not testify we felt that under the unless you have something that would help us get around or over that we do know that there's two jurisdictions that seem to take their position very strongly but what our position was that they were currently not very well is that that is part and parcel of what was occurring here because of this very large group of people attending every day and staring  something like this if there's been a contact and in fact there's a number of i r s our internal revenue service people in the courtroom and those individuals every day show up and those individuals every day  among normal jurors it is that and nothing when there's ten of them for a sixteen day trial is that enough enough something that could these people there mr young co counsel in this case he asked that those people leave they were not required to leave and so when it basically was one of those it's scary i mean i  by judge really for the most part those types of retaliatory remarks were excluded but that's they went into the jury room talking about whether or not retaliating was going to occur and i think in those tighten those types of situations that's very good evidence that these people after having gone through this very intense staring match of these people that normally would not be in their walk into into the jury in this case you have you have the probe more prosaic type of pondok here you had of the testimony presented at trial from the jurors two of the jurors said they weren't influenced at all one said he wasn't intimidated juror walker's testimony was it was ambiguous i mean i suppose on the outer edges if you had a case where you were in fact did have a past courtroom agents staring down the jury box for two full weeks to me as we say in our brief there was at most seven and several of them of the two of them a few of them case agents one of them's the the expert witness we're going to be putting on another one was in the courtroom for an hour because he thought his fellow summary agent was going to be testifying but turns out he didn't testify so it's but  he could show that most if he could show that the government employees in  and i know i quoted i know i quoted them in the beginning of the opening brief a number of them so i would i would say in that respect i did argue them and hopefully i did so diligently it was it was an issue for me because the issue was that this person claimed that she wasn't committing it one point got there and then at the end she gave us and affidavit after the trial was done and said she was worried about losing everything she had and yet we could not we could not get into that that topic was excluded from missing and we were diligent in and telling everyone not to get into that retaliate and hurt these people but i i have a small for lack of a better word a small army sitting in there looking at these these jurors are right next to them and then have at the end of the trial after the out one of two things at least find out number one what was there really some violence going on in that room has been related back to the original you know location of all these people in the courtroom because this case involved these people that for a long long period of time an awful lot of taxes and literally got it i mean they got hurt on this deal and as you can these people they weren't just citing this case based upon what they saw in that courtroom they were deciding these things based upon what the government could do and the reason they really believe the government could do that is because these people were sitting in a courtroom know at least in our opinion we're staring very harshly as these people as they turn their heads i don't believe in fact that a juror should have to turn halfway through a trial or two weeks into a trial turn start to look away at somebody else so that they can get over here because i think they lose the evidence that they certainly lose the impact if every time they're looking at somebody that's very runs through their body then they come back and i mean it