inspections inspection of the jury records on the merits the court discussed the law and the defendant's burden legal burden in a fair cross section challenge at length and then ruled that the defendant hadn't met his burden of showing a fair cross section violation and so further inspection of the rx of records was not justified any attorney every attorney would think that a ruling that the defendant hadn't met his burd a different attorney to the jury office to get the discovery where the court had discussed the merits of the case the merits of the issue had ruled that he hadn't shown a cross section violation and discovery wasn't justified why couldn't you have just clarified quite why why wouldn't the obviously obvious thing to do here for an attorney be to clarify with the court and say look i filed a motion for a continuance is that what you're r on access to these juries records is and of form of discovery or do you mean to be ruling on this issue for which there is no motion before you i'm going to try to answer the critic question but i'm actually find it really hard to hear with the my question is why wouldn't the obvious thing for an attorney to do in that situation be to ask the district court for clarification because there seemed to be a lot of confusion there is a motion control continuance only found in the jury office when after the court went through an entire analysis of their cross section claims and determined that this defendant hadn't made out a claim and therefore there was no point in going to the jury office there wasn't any confusion there's only confusion on and on appeal really i mean at the moment there was no confusion the judge said you made a fair cross section violation claim i deny it for the following reasons you haven't met your burden and therefore there's no and no inspection i don't think there's any import any significance to the word discovery in the way we i don't think anyone was thinking of it as discovery as we think with will sixteen it was just she wanted to learn more she told the judge exactly what she wanted to learn why she wanted to go to the jury office to learn that she called i don't actually know if she called a discovery the court called a discovery but it meant inspect the jury records so you've moved a defendant moved for a continuance and the continu was denied now well that's that that's what we have in front of us now i don't see you're making an argument that that the denial of the continuance was on an arbitrary or erroneous ground primate ruling didn't prohibit you from going to the jury records i think it absolutely did and it still does we have a court order saying you need to be you need to show a fair cross section violation and you didn't do it you don't need to show that she said if you want a continuance well what you're not getting but you know i mean whatever that court order says if you want to the jury office you can see the records you want it well actually it's my understanding you wouldn't without a court order you can't just walk in and see them you have to have a court order to do that out of and this judge had already said no you know that how do we know what that you need a court order wh i had in my mind was while there's an absolute right what does that you know words if the defendant walks into the jury office today regulation that the defendant must have a court order in order to look at the jury record there is no rule that i'm aware of or regulation there's nothing in the record about what would help and i can tell you from my own your records you need a court order but there's nothing in the record about that and i'm not one hundred percent positive so let me just ask counsel was appointed to represent the accident was he sole coun did that mean in your view that the defendant couldn't go to the jury office or the attorney could not make an appointment yes that meant that now and not then and it means that now there is a court order saying the defendant needed show a fair cross an ocean violation he didn't meet that legal purdon and therefore well that's a different issue i agree the statute is not as clear as it might be because it almost assumes that you have to have the information in order to file a motion so here the defense was trying to get the information and if the trial proceeded couldn't be in two places at once and arguably the only option he had at that point was to seek a continuance rather than waste everybody's time by going to trial and there's a problem arising with the jury but the district court did allow the jury supervisor to testify she did and the attorney pointed out very specifically things that the jury administrator was not able to test about testify about because she didn't have those records before her so from your reading of the cases how has this proceeded under this statute in other words a defendant is before the trial judge and making an objection and then everything stops while the defendant or maybe his attorney goes to the jury office to look at the record that is one way it could proceed in a situation like this where the defense attorneys work from the federal public defender off institution they could perhaps get another attorney to go look at the jury records but that is it's sort of a it's a problem in the statute you can't obviously you can't proceed without getting any information you can't get you can't even make your objection entailment the jury panel walks in and you can't see any information in till the jury walks in and then of course courts to address  cases i've been looking for something else and i just wondered whether your research had made it clear that the statute contemplates that the trial stops because you're not going to know who's been selected for the jury until inspected so yes one other question if your counsel representing a defendant in a trial is set for december one do you have access to the list of the called as a juror myself that the defense counsel is standing there with a list of all the jurors are right who are sitting in the room who are potentially be the jurors sitting on they don't get that list until that first day of trial when they're the jurors are waiting potential jurors are waiting in the wings so you know if it's that same practices follow to find you know if that same practice is followed in other jurisdictions or is that staff somebody on your staff could have gone to if you had the whatever you need to get it and could have gone to the jury record i worked for an institution yes we have other lawyers who could potentially do that in this case there was an order preventing us from doing that and certainly each other exactly there ordinarily when you move for a continuance quite apart from the situation you have to make some showing to you not certainly if you move from continuance you need to make a showing of why you can't we need to and so we need to inspect the record to be able to go to the jury office and get the information that the administrator was unable to provide i would also note that the government representation  oral argument before the district court that it would take months or record months or years to sort through the information you wanted to see and do you agree with that in time assessment i have never done that so i don't know the months or even weeks or even more than a day or two to disk to find that information so what's your understanding then suppose defense counsel had that information this client's jury or more broadly well she'd have to show a systemic yes yes she would have to show that this wasn't just a fluke and that's why she wanted to look time it was counsel's view that by looking it at that information we could make inferences about systemic violations what i'm getting at is the judge heard testimony from the jury supervisor as to what their procedure was and supposed it turned out that everybody was from north west but that every for one from northeast had a valid  a couple of cases where there was a computer glitch all right but but that's not what the questions that you were indicating counsel had were we're focusing on no but if she if she had discovered perhaps that all of the twelve jurors who were sent home had been african american or that you know very few s quadrant other than north west even without hiring an expert to come look at the computer code she could make inferences about a fair cross section violation and frankly i think potentially we know now she was asking for a continuance to find out the answers to those questions and depending on the answers to those questions she could have potentially we don't know what the answers records and i would be interested in ana remained to still exist and then and just to understand the theory again if the defense counsel would go it would take a day or two to answer these questions that she had any other the answer would be there's no there there and the trial would go forward or there would be something in there that would look like the type of problem that could well be a recurring problem and then the court would address it at that stage yes yes and you  obtain a stay of the proceedings a defendant has to show an actual substantial violation of the act the reason for that is because congress recognized that these sorts of claims by their nature would rise at the very outset of  trial when for do your is under way and it would not make much of this isn't this isn't this isn't making any sense to me they don't have the information needed to even identify whether they have an issue under this statute let alone to look at the records to research a motion if they think they need something they don't want to have until the moment the trial begins and so to say at that very moment that first day they have to just by looking across the room at the jury also have a substantial basis for thinking a violation is to empty the statute of any operation how are they supposed to have that substantial basis the first day they do they don't that's th jury person from the office to come in and testify but she left as many unanswered questions as they answered once so what were they supposed to do imagine hypothetically that there was actually some real computer problem this was one of th computer glitch or programming problem situations imagine that's what happened here how would the process of work well the statute specifically addresses this in section eight hundred sixty seven and what it says is that defendants have an absolute  unqualified right to see the records in order to determine whether they can make this motion but what they can't do is delay their proceedings at least they don't have an entitlement to delay their proceedings well they are doing that and that is because otherwise every defendant even if there was no indication of a problem with the jury would have a ready made continuance that they could invoke simply by saying i'd like to go and see the record how is this about first of all they're going to have to have something by looking at the jury pool right if this may be out of hand in order to actually eventually demonstrate a problem yes but but there is no requirement in the statute what is your understanding in other words the defendant would say to the district court judge i would like a continuance to go look at the records the judge has denied the trial proof two weeks into the trial defense counsel comes back filed a motion with the judge saying there's a problem with the jury pool well the r is it's simply an issue for appeal no the statute would give them seven days from the time that they discover the grounds to potentially make the motion they would have those seven days in which to conduct their investigation and if the trial was already underway what the statute says is at that point they can file a motion and if the judge finds that there has been a substantial violation of the act the remedy is to stop the proceedings and reconstitute the jury so why wouldn't that seven day period apply here i mean the trial has started in the sense that there is a judge who is ready to proceed to pick the jury correct yes and it would it would the only thing i think the only debate here is whether the district court had to stop the proceedings while the investigation was awesome but this is what i'm getting at the statute says if the trial was ongoing and mid trial this issue has raised you get seven days no though the seven days means the trial continues and council sends out an investigator to look at to do the investigation i think that's probably correct but it doesn't have to be while the trial  proceeding myself but i'm trying to understand what this seven days was intended to do i mean my understanding here is this experienced trial judge understood that the defendant had raised an chance of succeeding unless you have the data that's correct that's correct but necessarily you have to have an investigator who can do this while a trial let's see what you have to be able to if you want to conduct an investigation and you want to go to the jury office and see the records in an effort to determine whether there is in fact a substantial violation of the act that the statute gives you an unqualified right to do that that was the supreme court's ruling in test but what it doesn't give you it we're with you review the records but that doesn't mean that he or she is relieved from the burden of having to also proceed with trial these are two things that congress in vision would happen in tandem and the reason that it invision they would happen in tandem is were it otherwise the the result would be basically a continuance of the opportunity for a continuance in basically every case and i think that that is why the district court here in gauged in the discussion of whether there was a showing of any violation of the act because that's what the statute says and did it again a step to proceed offense counsel particularly public defenders and c j attorneys have the resources to be doing this type of research at the same time a trials ongoing congress would have thought that there's public defenders sent around twiddling their thumbs ready to go do this research with our colleague during a trial or that during trial they're supposed to be spending their time doing this well i don't i  court or do all courts have the same problem surely someone has figured out how to crack this not and get this to work the statute to work the way it's meant to and not have defense attorneys trying to conduct a trial and examine records like th difference between what a defendant is entitled to under the statute and what a district court might choose to permit and here for example the district court did agree to a stay of the proceedings so that the jury commissioner could come in and testify under some of that raise more questions than answers right and so the problem is how exactly was the defense attorney as a judge roger said supposed to be in two places at one time in the courtroom during the day and in the in the voting really believed that this was worth pursuing would be that they would proceed with or dear but the co counsel or an investigator or someone else could go to the jury office and see the records that is the type of thing that happens every courts prosecutors and defense lawyers have to make judgments about what they are going to devote their resources to and that is something that i think this statute could lead sounds like so then that sounds like your answer is that they have to make a choice between devoting themselves to the defense of their client in the courtroom and exercising that right this unqualified right that the statute gives them and the answers are always going to be we have to give up on that bet right to investigate the jury records because we've got to deal with a trial that's happening right in front of us i don't have extra resources i don't think that will always be the right result but i also think always well how often do you think they'll be defendant had of course not of course not no and we would never suggest that the only the only point here is whether there is an entire don't meant to stop the proceedings well this investigation takes place or whether the government counsel argued was the merits issue about the jury right to the court and the court ruled exclusively on the merits of their showing as to a fair cross section of the community and ruled on their inability to have discovery into those records and that they hadn't met their burden and if the district court had made a rule in terms of a continuance decision i would understand that point but what happened here is you had a motion for a continuance and suddenly the government's arguing a merits issue in the just a court's ruling on a merits issue you never got to sort these things out about how the district court in vision and letting the trial go forward but them still exercising their rights if i think there are two responses to that judge millette if i may i'd just like to explain both of them first is the statute says that in order to obtain a stay of the proceedings you do have to show at least a the untitled one you have to show a substantial violation of the act and so that is why there was that all of this discussion about that and that is why the district court considered these issues the other point is in determining near the end of the court's ruling which again was an oral extemporaneous ruling on a on an oral motion so it was not a written ruling the court did say i cannot continue to provide discovery there's been an insufficient showing for discovery but we think that those references have to be understood in the context of the motion that was pending before the court and that was very much a motion for a continuance and so i think the only reasonable way to understand that is that the court was saying well i'm not going to continue to provide you the kind of discovery that i just provided to you which stopping the trial so that you can in this case provide the testimony of the jury commissioner but it doesn't mean that as i as my friend has suggested that the defendant was precluded  or when they could or reasonably could have discovered the violation both of which at the same day but under the statute says whichever is earlier not later and so under the theory here that they're supposed to go one that starts a clock for the seven day they could if they had discovered if they had gone on as a district court in vision and it took them eight days to discover the problem with the computer they couldn't raise it under  question about whether trying to figure out a statute works and so the right attitude envisions front loading a very strict front loading of this process seven days whichever is earlier and here it appears that i mean the body years when you first have a chance of knowing anything at all so that's going to start the clock every single time that i think that's correct the usual matter judge millette i would just point this court to the court's prior decision in degrees in that in that case it discussed the legislative history of the statute and explained that congress wanted these sorts of issues to be resolved very quickly because they would be arising right at the beginning of trials and it invision that there would be very strict time limits placed on defendants who wanted to raise these kinds of challenges so i do think that that is inherent in the statutory scheme i did want to just quickly respond to a couple of other points judge rogers you had asked whether  records could have been obtained later and i think the question is yes the statute provides that these records do become publicly available after the master degree wheel is refilled repealed every four years this trial occurred six years ago so obviously there have been some period of time in which they've been publicly available and i don't think there would be any impediment at all to seen those records and judge millette you had also said that whether this investigation might theory records office in this jurisdiction deny access without a court order i don't know if as a practical matter that has occurred it certainly is not in the jury plan it's not in the statute it's not consistent with the court's decision in tast and it certainly is not in the record i also think that we can at the very least presume that the jury commissioner and the district court for that matter would resolve these issues in a regular manner that is consistent with the statute and if the defendant presents himself or the defendant's representative presents himself or herself at the jury office and the jury commissioner knows that this individual is a litigant in the case the records that they are asking for are within the scope of what they are entitled to and it's within normal business hours the jury commissioner would have no discretion to refuse to provide those records but we don't know what the actual practices i mean i do know they get a presumption but we don't courts all didn't in the eighth circuit which is cited in our brief as an example of that there are reasons that that might occur but let me ask is this a fair bit and very brief summary of your understanding of the statute that that if the defendant makes a move or a continued partner if the defendant sees on the day of the jury selection what appears to be a are number of links is your best well i think the fact that the compound where it was found was the compound where the defendant lived was running his massive heroin trafficking operation which at one point was responsible for twenty percent of the world's supply of heroin but wait a minute he lived there p didn't live there alone that's correct but we problem well we do know though that there are a number of circumstances that suggest that he was not only fully right that is not the only evidence of individuals working there but i would note there is one point i'd just like to make about that particular one though the thing that is not noted in the reply brief is that what was being farmed on that land was opium poppies for many years so he might have good reason to carry a gun when he's out there in the field right well he could and i think that would be very much connected with his drug trafficking operation argue a coconspirator theri we actually did argue the coconspira theory we argued brief here we argued in our brief here and we also argued i just haven't preserved it that's why we are he didn't arce in our sentencing memorandum below the district court did not address that because found that there was sufficient evidence here for constructive possession so what do you suggest we do with that if there is if the current basis for the district court's decision on the a k forty seven is insufficient what should be done well i think that there would there is undisputed evidence that i think would support it for example an a k forty seven was also found in the compound of farm on shah who was the defendant's chemist and the keeper of his ledgers we know that there were other individuals who worked at the compound it was was to basically go to the heroin lab and bring heroin back to the compound so it could be sold there were his sons who were our sons in law who were apparently engaged for some time in the cultivation of opium poppies although a bag show then later contended that they were d i want to be clear we don't think that the concept of constructive possession changes it's just the type and quantity of proof necessary to prove it changes based on whether it's a sentencing context or a trial cont what i said the premise of my question is why the normal regular principles underlying constructive possession it's not shown here and you push back at the outset we're not saying that the normal requirements for constructive possession aren't met it's simply that in this court's cases discussing constructive possession those have been cases involving an element of the offense proved sorry i didn't hear her say there were cases that you cited i believe that that were turned on the preponderance standard there were two cases from the ninth circuit that's correct and i think both of those cases are  involved at the question of whether the when the defendant was found in a play or gun was found in the defendant's apartment but none of his other co habitants appeared to be connected with the drug trafficking crime here that fact wasn't true the other one involved a case where who was who if you connected the son lots of the drug trafficking well i don't think that this turns on the sons in law i he's only the one that actually lives there are no the sons in law were apparently involved in farming but they were growing opium poppies which are the precursor to heroin the there was a young man who was there who went in for reid that he had a man who would go and pick up the heroin at a drug lab and then bring it back to the compound not the real owner of this property correct that the district court found that he was based on the evidence in the record issachar pointed t owner i think if you look at pages two ninety eight to ninety seven to two ninety eight of the supplemental appendix the district court there is saying that it had concluded that bad show and by the way that there's a guest house on this property well that's true but i think that you also have to remember the fact the bag show had his bag shows residence was here it was by far the largest  more likely than not the bag show had some control over this going in that it was not clearly improbable that it was connected to his drug trafficking offense which is the standard under the guidelines that that is matched by the evidence in this case that is obviously a very different standard than would be and the evidence regarding his son in law was a statement made in two thousand and nine that my son in law by the name of mohammad girl and naga go look after my lands only house load to cater to marco they've grown wheat there now in the past my farmers have grown opium there and at a time but what are you reading i'm sorry i'm reading paragraph ninety one of the final p s r in the past had grown opium there at the time when poppy cultivat and there certainly were plenty of non coconspirators to occupied the residence and even this court cannot firm on any ground on which that ground