the court to reverse and remain and for a new trial the district court committed reversible error by denying spotted horses request to see the alternate juror in the place of emotionally distraught or and by denying his request to have an individual dire with that you're before distraught jurors all the time i mean you know if you get to the point where they're showing a baby being raped and screams and hollering and it's in open court people are described right and sometimes people are in tears and we just don't get rid of all the jurors who happen to have a human reaction to what is a horrible crime right now if there's something going on at that precise moment that is different in degree in kind than what we usually see why wasn't that brought up immediately following the production of that evidence you know instead this looks like the worst kind of juror shopping that you wait till the very end and you wait to see what happens and then you pass it out  at the close evidence isn't the right thing to say hey judge i don't know if you noticed but juror thirteen looked like she was a mess and not just the ordinary an average kind of mass that woman looks like she is really really really struggling and we ought to be looking at the alternate at this point because it looks like you waited you just sandbagged on this so there was really very little opportunity for anybody to fix it i can't say why there was an objection in the middle of the witness's testimony i it's not just your shopping because it isn't just that we're asking for every emotional journey to be removed from a case automatically defense counsel said look her level of emotional distress raises questions in my mind that we need to die here to make sure that she can remain fair and impartial and the district court didn't do that and i think that makes it so that we can say that there's no abuse of discretion here because because we just can't say that that juror could continue decide the case fairly and impartially and so i think to circle back on the question of whether this was adequately preserved or whether was is an appropriate time to do it counsel specifically asked to make sure that she could exercise her duty to be fair and impartial notwithstanding what she saw in those images so he's raising a specific concern that's not a problem that's not a problem question i think if i mean if if the jury if the jurors were disobeying instruction not to not to talk to each other about the evidence and still are in deliberations that's one thing but you don't get to call it you know you get to ask every juror in the middle of the trial of you made were jurors reaction to the evidence the trial prompted this kind of was there an exclusion because the juror had reacted to the evidence i don't there are cases about general doesn't the proposition's wrong i'll answer that by circling back to we're not asking for every emotionally destructor to be automatically removed we're saying that where it's bad enough that defense counsel notices and is willing to make a record and to ask a college or an individual in question here where the court employers have all time that's that's an absurdly unworkable standard it wasn't just defense counsel here it was the court and clerk noticed her level of distress and approached her individually to see if she needed a break or continue with the trial the district court also said in his words that she's obviously emotionally distraught and  emotional as opposed to inwardly see that and somebody says ok judge now you got it now you got i want to hear whether he or she can can remain with us or is over reacting to the evidence doesn't that sound like absolutely contrary to our jury system i think the jury trial system is to have a fair and impartial jury and defense counsel is concerned impartial jurors react to the evidence and decide accordingly that's their mission told to do in we're not saying that they shouldn't be taking in the evidence as the case is going on we're saying that where there's such a level of emotional distress that multiple people in the courtroom are noticing in approaching the juror that that raises concerns already i mean give me a state court questioning there are cases about an edgers general level of emotional distress being a reason to remove the juror from trial and again that's a slightly different scenario and there are give me your best case along those lines that i believe that is the campbell case but i can confirm that excuse me the canon case and it is cited at least in the reply brief ok i also point this court to the jones case and that's a case where this was in the pretrial body or the initial jury questioning the juror said that she believed that law enforcement specter what you're talking about is retrospective and i think there's a big difference i guess in terms of the standards that we apply that there needs to be a legitimate basis on the record to retain the juror and that we look at the end question to see if that person can rehabilitate themselves or say that i can remain fair and impartial to the satisfaction of the district court judge those standards are the same in the two scenarios and so this is a situation where defense counsel had concerns about this jurors ability to decide the evidence fairly and impartially that came up during trial he maybe could have made the objection on the record that afternoon he did make it first thing the next morning before the closing arguments before the jury instructions he did continue to make  as any relevance to whether you're fair and version i think that's a fair and impartial juror may or may not be emotional as the particular evidence or a particular party i think there's no way for me i think that's true as a general matter but the concern here is that the district court denied the request to question the jury she very well could have said yes i'm upset but i would i mean you want to ask what can you still be fair and impartial even though you're crying in the in the jury by jury but that's right she could have said yes and that if that happened then that the district court's decision would have been afforded a high level of deference by well but i actually didn't have a chance to say that she could have said that she could have said differently  well actually something similar to that did in fact happen right because you've got in the transcript judge korman says i am not going to conduct an individual voir dire but i'm going to make an inquiry and he doesn't fact two seventy nine of the transcript where he asked the question are you able to proceed with no problem told the jurors and nobody volunteered that they were under such emotional distress that it that they couldn't do anything i mean now it might have been worded a little differently but i mean this is not a case where there's absolutely no inquiry and so the question really is did he abuses discretion by not making any further inquiry he did abuses discussion because that inquiry gets that just are you are you feeling ok as ever the judge has to deal with twelve jurors if you want to mess up a case place concentration on one juror and clear he was asking for an individual questioning outside the presence of the rest of the jury i think that might have been assumed in your question but i don't want to make that clear you don't think that be no that's right i think the rest of the jurors are  impartial jury so i want to return to that that that check in that the district court to do with the jurors again is not adequate because it didn't get out the question of can you continue to remain fair and impartial notwithstanding what you've seen here there's no indication that any of the jurors responded there's no show of hands there's no certainly no verbal responses no indication that anybody nodded yes or no i'm so it just doesn't get out the concern here there are general concerns with jurors that come up during trial about life's circumstances or i'm not feeling well or i've got a time pressure at children at home or somebody to take care of something like that those are the concerns that are afforded a clear abuse of discretion standard and that that seems like that question is getting out it's not getting at the question of whether there was a fair and impartial jury you know in these types of cases are always hard to me they're hard to select yours there's a lot of jurors that just feel like i just can't do this there are lots of people that that find the i mean if we will be really just anybody here feel uncomfortable about making a decision on this particular case whether they feel like they've been i mean there's that's a problem i mean there's it's always a problem in these kinds of cases i mean you know these kinds of cases we routinely tell people that that they may have that we have available an employee assistance plan that they're covered by and if they feel they need to have counseling that they and so it's well within the purview when you watch  people engage in orrible acts of violence against children and then we ask other people to view that and make a decision i mean by nature people distraught all the time and  m just having a hard time figuring out like what this judge could have done that though that would have gotten to your problem without causing just a whole mess of other problems right i mean you could end up with like a level of i'm saying no at this point i can't be fair and impartial because he's guilty as sin now they've heard all the evidence and they've heard all the arguments at that point they're perfectly free to hold that opinion right  you know and but i think you open this thing up at this late stage it's a it's a problem and i think that the solution that defense council is proposing was to difficult nature of the trial if they were about t that's true and i would i just want to clarify that our argument is that i don't know where the line is but this case crossed that line if somebody is clear emotional distress giving rise to at least an obligation to check in with a jury make sure she can still decide the case based on the evidence before her  good morning your owner's counsel may please the court again my name is troy morley and i'm here for the united states in this prosecution under eighteen united states code sections twenty two fifty two and twenty two fifty  six the evidence of guilt was really overwhelming you know mr spotted horse gave a confession to the f b i in this matter and you know if you look at the transcript everyone on these terms tor when he served online he knew that this was a federal case he would probably end up sitting behind federal behind bars he felt guilty when he saw things you shouldn't use programs to  races ideas and remove the things he viewed the children and the images were between the ages of ten to seventeen that he had been viewing the images for two to three years during that time frame he was viewing child pornography approximately three to five times a month he began looking at the images out of curiosity he set up the computer hard drives in a raid configuration he knew how to think with computers he viewed child pornography only issue that's been and argued this morning that this structure is there harmless error is that even relevant to this issue i would with overwhelming evidence of guilt permit us to be frank i didn't even notice the crime this wasn't a juror wailing in the courtroom there that i didn't notice i can't remember if i responded it might be i can't remember if i responded when they brought it up that i didn't even notice but there's nothing in there that she was way way there's no pass in the proceedings there's nothing showing by the defense that she stopped and started glaring at the defendant she we are making a leap that she couldn't make a disconnect that she was just what king at images of horrific crimes happening to children and did this gentleman possessed them did mr spotted horse possess there's nothing nothing in the record saying she was looking at the images started crying crying and immediately glared at mr spotted horse immediately directed her anguish at mr spotted horse she was looking at photographs she was looking at photographs of unspeakable crimes against children and she showed emotion as you've noted judge lo stand on the stand we don't start to individually avoid your own this juror saw an image people observe the fact that she was crying this juror didn't feel she needed a break a break wasn't taken there's no break indicated in the trial at the behest of this injure the trial went on the evidence went on again this wasn't brought up in tell the very end there's nothing in the record that shows that she directed her anguish her grief directly at mr spot of course there's nothing showing she prejudged there's nothing showing that this juror had made up their mind when asked if everyone was able to proceed all the jurors responded they were and it was that that time the alternate was released basis for the district court's decision to retain a juror there is no abuse of discretion judge korman wasn't going to single this der out wasn't going to individual leave why durham but did ask all the jurors if they were able to proceed if they graphic but this there's there's no no hint of outside influence here right this is reaction to the trial of correct this was soley a one time incident when so i believe you have all the exhibit s with the file and so they were printed out with a cover sheet that had a path directory that covered up the images and they had to flip them they were handed to the jury and this is when she was crying was when these pictures would be handed out when she had flipped certain cover sheets over and viewed the images that's when this crying occurred it did not occur at any other point during the trial and again there's nothing to indicate that it influenced her there's nothing to indicate that she media we shot glares or disk ain towards the fan and there's nothing to indicate that it was even an audible outburst that other jurors would have heard  whether she was sitting in front or behind there's nothing to indicate that other jurors even observed this behavior of this particular juror at some point judge korman talks about that there he  references as i said in chambers and as i'm looking at this record we've got this record that that we have in front of us what the heck was going on in chambers and is there anything that not in this record that is is relevant from the government's point of view you know you're on the way the judge herman has a lot of in chamber conferences and i'm struggling to recall if there are not and i don't want to go off the record outside the record either he wasn't the trial counsel but i'm struggling to recall anything i'm just a little bit concerned about the fact that what we're going on here it looks to me like there was some super secret in chambers conversation where people make their real arguments and then everybody shows up in court and somebody tosses out  rather abbreviated ruling and and when you had said well i think i may have said that i didn't even notice anyone crying and i'm saying well there's a look in the record and then i stumble across the well as we said in chambers and i'm going this is just no way to conduct trial but that's not between you and nine that's something else but and judge like i said i don't recall any in chamber conference there it might have been when it was brought up for the first time in this particular issue but it seemed to me that it happened semi contemporaneously because i rest the government rested immediately at the conclusion of mis testimony which is when these exhibits came in and the defendant also rest he didn't present any evidence on his own and typically there is a sidebar i know that judge korman does where the defendant makes his motions at the close of evidence so i i do not recall in chambers all right thank you there no are no other questions for me i would ask that the guilty thank you i know the defense counsel did make a record to thirty five the transcript as each photograph came by you could tell she would look at it and you could see the tears coming from her eyes and i saw one point after she looked at an image a photograph she looked over at my client so the record does reflect some linking of the images to the particular defendant in this case and also it's undisputed from the record that we have that everybody who addressed it saw this juror crying the courtroom clerk addressed her in the district her referred to as mostly distraught there's nobody who