establishing this procedure which has been extremely helpful in getting our cases heard what we want to try to do is make this as close to any person oral argument as possible if you will where it has been for us in the games on your screen counsel duly given and witnessed in these you know by my count there were at least twenty four improper outbursts questions or remarks during the course of a four hour trial from opening to closing which is actually two hours when you're with a break that's twenty instructed you to be careful and tread lightly after mr mcmahon she assured him that he had the record and expressed the sir in the end might want to close the senate what they say thing i'll let you do what you want and that's exactly how this trial proceed case you could be called as a witness maybe mr boies going to cover that in his presentation but in so far as your answer to my question mr sandman was not in the courtroom as a counsel of record prosecuting attorney pervasive that it infected the entire criminal process and infected it unchecked without any real cure and so in our view that necessarily renders this trial fundamentally unfair this is the type of constitutional violation that must result in a believe that prejudice is required because it's judge jim preflight the question is the extent to which the misconduct contributed to the guilty party did it in fact the jury room and did it influence the verdict and judge just pop it when you how an trial and that's absolutely incorrect and really good evidence of that is that i mr mcmahon best effort the jury deliberated almost two hours that's double the amount of time that the witnesses were given on the stand and they also asked to question directly relevant to mr mcmahon and inaccurate for you if you and i would urge the court to reject the government's argument that you believe in entitled to a fair trial because the jury necessarily was going to i don't think that certainly isn't what prosecutor in this case the court the defendant the public certainly have a right to expect better and expect high class professionalism we fell short of that in this case with knowledge of them but the presence of misconduct does not that's all we're asking the court to do is to do its traditional fine work it's routine work to see how this if it did in fact prejudice the stroller and looking at that in light of the record it structural error call it prejudice i understand obviously would change and i agree with you that it's an important one but it's really hard to understand how you don't find presidents where the in your face talking about the facts of who said what in conversations about  understand your honor and i think general zinni goes into some other issues that we talked about is let's focus on what the misconduct was about and what it relates because i think with the one exception of the statement in closing argument about don't return a verdict goes into where we're talking about that that the fence is really in a relevant sense this court case as we talked about with defendants who refuse to testify after grants of immunity mostly in grand jury context but they're there and where people have said and brahma for example i fear for the prosecution in the or other cases we've talked about where i feel reprisals i fear that someone's going to come after me i fear that my family might be the courts have said the reason you choose not to testify is not relevant in this context if you're ordered to testify and you will only decide not to testify it doesn't matter what your reasons for doing so or that is the l so our argument here is that the misconduct several occasions we don't dispute that there was an order to testify we don't dispute that he chose not to test what we're disputing is why he didn't testify but that is motive and motive is not a relevant defense so i think when you look at the prejudice you've got to look at the facts of what was the misconduct related to the hypothetical you talk to a judge over i think a prosecutor seeing drugs change in a drug distribution if he's testifying about that that's going to ose issues and it was only related to let me tell you why i did it that's not a good faith defense where it's not mr polio saying i thought i was in good faith i thought i complied with the order i thought i followed the or wasn't that this was i was i had a unity i was told to testify i chose not to testify but let me tell you what that's not a good thing the fence that's an improper motive so i think the reason the prejudice doesn't go there your honor is because the misconduct was related to that irrelevant offense and in a way that's not really any different than what this court normally does in other concepts for example if this court were on sufficiency of the elements and let's say the prosecution had this court certainly could find that those were arabs and those are ignorant but then it would still analyze it in light of the other evidence to say what's an armless and that's what you can do here and i think that's why the importance of the language in jones more than thirty years ago  assume an error like opposing counsel has recommended which is the only argument that really present system i mean once the totality of the evidence admitted this conviction and i have another question for you about the case so mr the agent took the stand described the interview the f b i three o two containing a summary of mr folio statement was what was placed in them a copy of the immunity letter from the department of justice that was given for mr olivia was placed in evidence the transcript from the wind is to has no trial in which the district court ordered mr foley to testify and made sure that he recognized he could be healthy if he didn't testify of your meaning is the dispute as i understand it maybe miss rose will come back to this in her rebuttal because i'm asking both of you the dispute and i understand your argument about how it's not relevant  the motive for not testifying is not relevant but isn't isn't the the complaint that when once mr bowen gets immunity the government provides a ladder and community for the fence that he's going to testify about and is participation in it is that correct you know every minute that i understand it is that put that aside he did testify because mr mcmahon said when you get on that witness stand you bet i've done well say x y and z or i'll prosecute you for perjury or what have you that's the rub on this thing that's the argument your honor that  point to the record any finding specifically the exact words but they are a mistake in any case right when the government has a statement of some so on whether it's a three hundred and two are recorded statement on grand jury testimony or what have you the government it rarely does so at least in my experience i can always prosecute a cooperating witness who testified falsely or directly contrary to prior testimony under oath is that that's correct your honor because because no immunity statement can give you immunity to live in the future and that's a point mr and i think everybody agree with that mr cole you know got on the stand even with immunity and why during the wind is just no trial that stand at the line and stews no problem now he could have said something different he could have said i've said this before that was wrong he could have explained why there would be a difference but the thing is you're not allowed to disobey order to test and that's why the evidence in this and that is contempt and i want to tell the jury why i didn't do it that's not relevant and that's what the misconduct related so i think you have to take that into consideration when you look into whether this is were personal er judge just allow a procedure to come in trial where after each witness the prosecutor was allowed to be a basically a summation of that witness and argue to the to the jury the the court that affected the presumption of evidence just upset the natural order of the trial the criminal trials we know it and allowed the jury to start forming opinions before the case was submitted to them and really put the defense on the position of i cannot now rely on my presumption of innocence i may have on the stand so it's not the same and as far as ball in this case is not going for at least three reasons one the facts and bowens as this court noted were very novel and exceptional it involved blogging incidents anonymous blogging hundreds of them if not more from members of the u s attorney's office in the department of justice that were not part of the trial and therefore attacking the structure of the trial from outside it wasn't the misconduct that occurred  trial celt and also because the government refused to adequately investigate the hours covered up with a new to be misleading omissions and in some instances line directly to the court the district court couldn't cover the extent of the prosecutor's transgressions that's not cloning the supreme court's decision and when the misconduct occurs during the presentation of evidence it's a lot nearly quantifiable and amenable to harmless error analysis all the misconduct that really affected the trial  happens in the presentation of evidence and so you can quantify even quantify that and look at it in light of the other outs but the rd most important difference here is the procedural posture that this case is in in light of this court in in fact prosecutorial misconduct we agree that we're not challenging that but we do not concede that the prejudice error and in fact in looking at the case that was presented that opposing counsel brought the only argument they here in light of everything we don't think the defendant has proven that because it's not the case they presented and they actually haven't made up prejudice announcers again even if you would look at it alone even though that's not what they thought but even if you would look at him alone or look at it here we still think that because of the irrelevant defense because that was the relation of it especially and because of the clear simple evidence of intent here that you can affirm for that show that we will not stand i think judge when or you can make that point clear i think you can make that point saying your your expressed disagreement and disbelief with the conduct but i still think your case law says we don't reverse just for the just rejected this framework and called upon brac i want to just very quickly clarify that brask just talked about sort of the inability to determine prejudice because the government had a truck with the investigation render a decision in due course and with this the conclusion of this argument the oral arguments for this panel