allen charge is often thought of and considered by other courts to be a quote unquote dynamite charge for the intense impact it can have on the jury's deliberations given the specific time of this given that specifically that the circus that was deviated from this case there are two distinct points on the sushi the first is that an allen charge frankly should have been given in this case given the fact the jury had not once but twice issued a note to the court indicating that it could not reaching adam's verdict in the second issue is that the allen charge was improperly modified from the circuit pattern with regard to the first issue i believe the timing specifically of the events in this case is important as noted in the brief the jury was charged on a tuesday about two twenty five pm and they were sent back to liberate they then deliberated the rest of that day all morning the following morning and in past launch until about three fifteen when they sent out a note asking and frankly very detailed question about government's exhibit fifty six a five hundred ninety page exhibit full of medical records and in order to notice that the medical records in that exhibit were actually from two different individuals one mary i's smith one mar a smith they would have had to review the documents up through past page five hundred and notice different dates of birth and the different initials my point only being that this is a jury that was clearly very much focused on the evidence very willing to go through things conscientiously doing their job after that they issued a notice saying that there was no unanimous opinion they could give to every board excuse me as to ecuador on those counts they asked if they should continue deliberating against the court issued as an instruction simply saying yes continue your deliberations after that they issued a second note saying they were unable to reach a unanimous verdict on certain counts what should they do with it at that point and now in charge was given prejudicial language that frankly unique timing in terms of circuit pressed and i couldn't find a case that was directly going to leave saying that the upshot of the first no to the judge was that we were unable to reach a verdict the upshot of the first note was they could not that they were not able to at that time after that the second it was issued then the allen charge was given and with regard to the specific note itself i actually complement the government in their reply brief they enter into on page twenty two they give a comparison side by side of the different allen charge the pattern allen charge from the circuit and the answer is actually given in this case and it notes specifically the different language specifically a sentence is added which says on the other house are you suggesting that the judge should have given the allen charge after the first no no your honor i'm suggesting that the out first of all it's just in the district judge should not have given the allen charge at all who declared a codefendant i certainly would understand if the court would have wanted the jury to continue against the codefendant but i did request a mistrial at that point with regards to the language specifically that was given eventually after the second note from the jury the language on the other hand if the evidence establishes guilt beyond a reasonable doubt on the count as to the defendant the verdict should be guilty on that count and i know this is a belief this is a deviation in which the court is that in one sentence which points out to a jury under certain circumstances where they must by law find the defendant guilty if we are to presume that the first circuit pattern charge is in fact balanced which i think is a fair assumption the judge improperly unbalanced the charge by adding language that indicated one potential result without correspondingly balancing the other result as your daughters know from earlier in that same charge that was given there as corresponding sentences were both are stated but all three what the district judge may have been trying to do is that the addition earlier in that paragraph it is modifications on this trip seem primarily to be dealing with the fact there are multiple counts on multiple defendants and the allen charge and pattern jury instruction to other counts verdict should be guilty on that is what i mean i think he was looking at value one way to interpret this and one way i hope that is that he was expecting a jury would interpret it is this once he starts to talk about individual counsel needs to be some agree with us to the point of having a specific language as to account or for a particular defendant which is added several different times but i think that that actually serves a different purpose than adding the thought of a long sentence that i am actually taking issue with i think that making it clear delineation for the jury that there are certain counts as to each defendant and they must consider the evidence on each count as to each to find that perfectly valid point and i believe that some of the changes that the district judge made were for that purpose however i think that when the government's attorney a trial specifically requested this additional sentence that additional sentence did not in fact serve to balance it serve to suggest and i understand that the language used is not necessarily as prejudicial as say go find this guy guilty i of that yes yes your honor certainly short of that but i do believe that the effect of the additional language is such that it unbalanced charge that was already carefully balanced which is why it's the pattern instruction in the first place if i may move on to my second point your honour's the second point relates to the providing of jury testimony for the jury with testimony from trudy bell in the form of the transcript now this is frankly a unique fact pattern from what i could see in that both parties agreed to provide the jury with a transcript of a prior witness before the jury requested this so in terms of the timeline i explained earlier after the allen charge is given the jury comes back having already see the copy of the one witness couple of reasons first he was the primary witness at he testified the longest he was a cooperating codefendant he only cooperated codefendant and the only person who could testify as to working with the defendant in that case additionally it was also because he was a native of nigeria he spoke with a heavy accent and as i noted in my motion for the trial the district level it seemed very reasonable to me for a jury to want to actually be able to go back and make sure they understood everything he said under th circumstances so your honor is correct there was no objection from the defendant to that testimony going back however as to the second testimony when that happened that was for trudy bell trudy bell was an investigator who was employed by health integrity who work on contract for the government she was a native of the united states she spoke with no accent her testimony was substantially shorter and at that point i raised the issue of i think frankly this is a cumulative matter and i understand that there's a standard review issue that opposing counsel have a disagreement with but the second reason why was improper was that there was no limiting instruction and i understand that the government in their brief has issued a tsunami has argued that the standard of review should be different on that matter but i would actually argue that previously in that case there was a limiting instruction given by the district court there was a conversation about that earlier when we were in such conducting the jury charge at that time it's in the record on appeal page nine sixty two nine sixty one and in it the district judge specifically notes that a living structure is appropriate for certain portion of the two requests limiting instruction when the first transcript was provided a big part in the first transcript no your honor for m as there was no request for a limiting instruction for that i believe that the record is actually silent in terms of the proceedings that happened i believe it's simply the note that the judge sent back saying attaches a copy of the transcript but no your honor limiting struction was not requested for  is the need for any different your honor i've got to the first transcript and then second your honor i think it's a matter it relates back to the other argument which is it's what is in the sense of if a jury wants to simply check to make sure they heard one or two reader just can't handle too much witness testimony but we have transcript i had it i think your honor it tenderly it due to my handling too much is not the way i'd phrase it the way i would phrase it is that they become reliant on that and the issue is that when you have something sitting in front of you that makes it so easy to see what believe was well over one hundred pages so when you also have on top of that the additional pages of truth bell's testimony my point to the judge was we're simply at this point trying it based on what was printed on the paper as opposed to what they actually observed and i think that that point the us their unique nature of this is such that obviously someone who has issues in terms of not speaking clear english because he learned that as a second language that is different than someone who spoke very briefly in terms of comparisons of the length of other witnesses testimony and only spoke about something that was a brief conversation and a little bit about medicare regulations besides i don't believe frankly that that was an appropriate decision i think it was beyond the scope of judge cade's reasonable deference and i think that what we had was we had a jury that started to look at just the transcripts and i think up until then again noting the timing of  the timing of all this is such that the allen charge was given and then the jury after this request pretty bells testimony they requested it for ten pm is then given to them a verdict came in at four forty five so in terms of viewing these used together i think that there was a problem with this the jury had done their job they didn't they had contemplated the evidence they had gone through in detail and they simply got to a point where the judge told them go back to  verdict they got this transcript and in my opinion as a result of that they split the baby they found not guilty on three counts that had him guilty on one count and because of that i think the jury ignored their conscientious police and instead imposed a verdict that they thought they needed to to get the heck out of there it was monday of the third week the judge informed them that might take up their third week they've been there for a long time they've been working at it and i think that it simply wasn't reasonable and if there's no further questions this time i actually  aguilar and then says can we continue deliberating as a doctor might but there was no indication in the first note that the jury was hopelessly deadlocked or that no further deliberations would be possible any of that sort of language that you sometimes see so i think the idea that a mistrial would have been appropriate at that point is just not supported by the record with respect to the allen charge also in the reply brief there is an argument made that some in discussing some of the cases cited in the government's brief that in those cases the allen charge was given on the first day of deliberations which in the cases discussed is true whereas the argument goes in this case the allen charge was given essentially during the second full day of deliberations and that should make some kind of difference and i think there really is no support for the idea that an allen charge would be impermissible on the second day of deliberations and would have been on the first day of deliberations in fact we cite the united states first versus heath's h v eight th in our brief that's an example of a case where now in charge is given after seven days of deliberation and the court you know found no error in that case so we have instances of allen charges being given relatively early on the first day of deliberations we have instances of allen charges being given later in the liberations this case is kind of in the middle it's essentially the second full day but nothing in the circumstances and certainly nothing in the president compels a result that this allen charge should not have been given or was impossibly worded the additional language to the one pattern charge com the judge is doing or did you suggested or adi how did this addition to the allen charge come out the record does not reflect where the language came from i was not the trial counsel and i'm counsel appealed i was not the trial lawyer so but the record certainly does not suggest that the government you know insisted on this language minder standing from the record is the district judge you know prepared the allen charge that this is the charge of a given the language was in there there was an objection and he over additional example of this trying to sort of craft the charge which is written in the context of a single defendant single count trial and make it make sense and not confuse the jury as to well you know maybe we found you know that we found that there's one verdict here and that has to apply across the board i think that was the the issue that the district judge is trying to resolve and again and giving these kinds of instructions the district court has a wide range of discretion there's certainly no contention that the added sentence was legally erroneous or legally been know that for example in there's another pattern charges they use similar language of if you find such and such you know your verdict should be guilty i believe that's in the charge for lesser included offenses and there's no what there are any language in any of the instructions that said instead of saying you should convict if there's enough evidence you should acquit if there's not enough evidence to but i believe that was the immediately preceding sentence in the allen charge and said if the evidence in this case fails to establish guilt beyond a reasonable doubt as to account the accused should have your unanimous verdict of not guilty on that count and certainly in the in the normal portion of the charge there's repeated references to the fact that you know the government's burden is to prove is to prove beyond a reasonable doubt and standard allen charge and the idea that this is a balance charged it's been worked at and been prepared as a model who had or had previously had in the judge added proper balance that explanation and if that were the proper balance this new language that was added put it out of balance the on the other hand language i considered and i'm concerned about taking to get the jury to reach a resolution that the district judge did create an imbalance from what had been accepted as the proper way to put this but we disagree that there was any kind of permissible once and i understand the argument but i think this is a and relatively innocuous sentence that simply gives some instructions about you know standard burden of proof issue so it's not that there's nothing improper that truly you know sets the the balance of the charge and i do think th sense that you wouldn't need anything after that because not guilty resolves the whole case there's no other charges to consider the calculus changes though when there's multiple counts in multiple defendants and so i think at that point it was certainly reasonable for the district judge to think well i don't want to risk confusing the jury that if they find a not guilty on one count then they can just ignore the rest of the counts or render some kind of across the board verdict so i think again within his sort of broad range of discretion in crafting this sort of charge and starting this language here was not erroneous and i  add that the circumstances of the verdict that was actually delivered i think dispel any notion that this was a coerced verdict we have you know the jury continued to deliberate for multiple hours something like four and a half hours after the allen charge was read that's a that's a where the court has said the existence of this kind of mixed verdict shows that the jury the jury was you know discriminating and truly what did each count on a count like count basis and did not just rush to a verdict are you arguing that that this addition to the  change to the pattern charge is it is ok in all cases are in just specific unique cases like this one i mean if we if we rule in your favor  ashland then expanding the allen charge and expanding the pattern charge and telling district court chapter oh you got to change your allen charge could now the fifth circuit said you can add this additional language are there something unique to the facts and circumstances as to how it came to the judge that in this particular situation you can add like that language i think it's a case by case basis because it depends on you know how many counts are there how many defendants are there i don't think that you know to  you know single defendant single count case i think the district court would be you know wise probably just to follow strictly the allen charge and not there would be no need to to make any sort of modifications to it so i don't think that to affirm here you have to create a sort of rule that goes to every case but certainly on the facts of this case and the language in this case i think that there's no there's no abuse of discretion certainly it's it was a reasonable thing for the district court to do and given the totality of all the instructions you know the numerous times that the jury was reminded of the burden of proof in these things that there's just no evidence and there's no reason to think that this language was so prejudicial to require a reversal which is the language that this court has used you know only within the bounds of what was reasonable and proper here and there's now for the course about the allen charge i would like to talk a little bit about the transcript issue that was discussed counsel said a few times that this was a unique fact pattern in that the parties have agreed to give another transcript to the jury before this request for a second witness this transcript was made i think you know assuming that it is a unique fact pattern there's no precedent the district court's decision here certainly can't be said to be an abus if this is not something that this court has said no you cannot do this you can only you know you can only give one transcript but not the other there is no president like that in that circumstance i think the district judge acted very reasonably in correctly here by saying i'm not going to draw a distinction between this transcript and that transcript at least already agreed to have this one go back and i do want to point out that two things one is this issue of mr being a nigerian native and speaking english i guess with an accent that was raised and the motion for new trial that was filed after the trial as an explanation of why counsel at the time thought it was appropriate there's nothing in the record though at the time the in the transcript was given to the jury where there's nothing in the record where the party said well we'll give this one because you know he has a nigerian accent or something like that so that that was not a consideration at the time whereas where the district judge would have sort of been drawing some sort of distinction it was agreed they gave it black and white and riding in front of the jurors for them to be examining at some length who turns out not of much length as i recall how this played out what do you say about the importance of bell testimony and the kinds of information that would have been in that transcript the could have been unduly infrasound and what's a fair understanding of what her transcript would have been contained thirty bell was a she was a medicare contractor  what happened during this meeting what kind of information came out during this meeting she was not it was not particularly like the testimony she asked if i think maybe the key points of the testimony were see it ask mr eko bar if the health care agency i'm not sure and i think i think that i don't think there's been an argument why anything any particular fact or statement in this bell's testimony would have somehow improperly been emphasized that there's been nothing identified in that testimony other than just the fact that the testimony was given there's no argument that you know this particular statement was particularly damning against my client or something like that it's it seems that it's just the fact that the testame and if it's simply the fact that the testimony was given and then i think you know there's nothing you can point to that says well this you know right here was something that was unduly emphasized because there's been organ of that and i do and i do want to point out that the district court gave instructions elsewhere to the jury and these are instructions that were not only given in court but also were given to the jury on paper form and to take back into the into the deliberation room other instructions that said make sure to you know look at every consider all the evidence you know the sort of instructions that are sort of proactively telling the jury don't have size one quantum of evidence over the other so given the existence of these other instructions given the parties prior agreements you know unopposed agreement to send back another transcript i just i don't think you can say that there was some sort of reversible error especially given that there's been nothing in the testimony itself that's been identified as something that they think is you know was under something unique about each witness's testimony that you can say describe script goes back but this other one does not i mean i think it it all is very tasteless ific in the district court is in the best position to be able to assess things like how long is this going to take a is that something that's deliberations if you look at the cases these are the sort of on the ground practical things that the courts recognize that the district court is in the best position to account for you know there's cases out of the ninth circuit i believe that are cited in in mr  where the jury gave notes that were very specific saying we want to look at only like one line of testimony where the witness made a crucial identification and in those cases i think the ninth circuit said well given that the jury specifically wanted to only look at this one you know a line about the identification of the defendant and we need to make sure they look at all that witnesses testimony including the cross examination so it's a very much a case by case basis depending on the circumstances i think if there's no more questions on the transcript i do want to make one point about the sufficiency the evidence and apologize for something i called in the brief we have a citation error in footnote four and on page forty four we cite to a number of these medical records that were introduced at trial that were medical records of two women who testified at trial and they essentially testified that they did not have any of the conditions that were reflected in these medical records including records that mr aguilar prepared and they they were certainly not home back at the time that they were being billed out as homebound one of those medical records that we we cite it is a december twentieth two thousand and eight form it actually relates to this other mary smith mary a smith so and the jury was instructed to disregard the records relating to mary a smith the correct mary smith as mary i smith and we've cited numerous other records that are of the mary i's smith who is the woman who testified at trial and those are again given means it's not innocuous the language in there is specifically heard by a jury after they have already considered the instructions that were given to the court after they have already deliberated after they have already come to a place where they can't reach in this position and then in that moment of wanting clarity because they don't know the law and they don't know what to do then the allen charge comes in no language in that charge can truly be innocuous based on the nature of the charge itself now again i do agree that the way the specific words in the sentence are phrased it's not suggesting that they have to go find him guilty but that is not the point the point as the bench made previously in a question is simply that once you already have a tear fully crafted from the circuit pattern charts you cannot then try to tilt the scale a bit by put your finger on one side or the other to try and suggest one way or another because the jury is not lawyers the jury is not people that studied the law gone through all this and understand this they are relying on the words they hear and the copy of the allen charge that they're getting and it was unbalanced improperly and that is the argument now with regard to counselor saying that the acts an issue of ferguson that he later was not brought up in the moment he's corrected it on the record it was not brought up in the moment and i'm not going to get into what was argued off the record that's not proper but i will say that the district to allow one transcript to be given to the jury i think generally for me my view is any time you give a transcript to a jury you risk that that testimony could be given undue emphasis which is why i think a judge ought to be very reluctant to allow any transcript of witness testimony go back to the jury but in this case the parties agreed that it could and so once that happens and then there's another request for more transcripts of testimony couldn't it be viewed as a comment by the court on the worth the wait the value of a witness testimony if you have a situation where they ask for one transcript and then they get it and then now they ask for a second transcript and of course there's well you can't have that don't you run that risk if the judge announced starts to decide you know you can't have this one oh well how about this one well you can have them you don't think that's problematic respect for your honor no i don't because the district court is certainly capable of sending back an explanation as to why the district court decided not to give that transcript it could simply be a reminder that they are to rely on what they observe the testimony they can reference the notes in the still read amongst themselves the issue why couldn't that reminder have come when they asked for the first transcript all everything you just said would have been appropriate when they asked for the first phrase well your honor i think again based on this particular witness what he testified to his accent i think that is the reason why it was done i can't speak to what the district court thought but certainly the district court had the concern your honor just espoused he would have overruled those both sides agree to go back that does not bind the district court to give the transcript to the jury and if this judge had this concern with this witness i believe he would have told myself and the government to that i'm not doing it and so i think that while i understand your point i'm not sure it's an issue in this case for that reason based on what the judge saw now i don't think the government is trying to insinuate that i'm being disingenuous in bringing up the action thing but again i did mention it in the motion for new trial only because i didn't think i needed to point out to the district judge who heard the entire testimony that there was an accent i think that frankly was kind of obvious from listening to it and with regards to  regards to the timing issue again i think that you can look at air points one and two in aggregate almost because of the quick succession of events which happens of to me allen charge the getting of the testimony and the final rendering of a verdict and i think when you consider together the specifics of what happened there was an abuse of discretion by the trial court in not saying to the jury ok in this trial this is too much at that point justice was not