a fair trial before a neutral magistrate is at the heart of our adversarial system of justice it's a fundamental principle particularly in a case of a criminal defendant that when she comes before the court faced with the overwhelming nearly limitless power of the government with all of its resources arrayed against her that the court that will hear the matter will be neutral patient and unbiased in favor of one side or the other it's so that the court doesn't show that it has you know it's not supposed to have any skin in the game it's not supposed to take sides in this case the record below shows that the trial judge here spent a considerable amount of time going far beyond the clarifying questioning that rule six fourteen permits went far beyond asking a clarifying question of a particular witness because she didn't hear the answer or wanted to you know the juror a juror had raised a question about gosh i didn't hear that answer i'd like to have that i'd like to deal with that answer was here the drug trials housel never objected to the questioning or comment that's correct your honor and they absence of of multiple contemporaneous objections on the record to the multiple instances of the trial court's intervention and i  improper intervention whether or not whatever you would argue we were looking at it plain eric erection is the highest standard week we have to reverse a district judge on a question of this sort correct that's correct your honor you have to point to some precedent instructive is both the mets case which is its own reported case but it's it was cited in my brief and also on the right case i think both of those cases they discuss and identify the proper role of the court the proper role of the of what is permissible and what is not and in take it in the context of the entire case the context of the question in the context of the of the conduct that trial translated of course into the into the context of sentencing that followed i believe that they will hill says that the conduct of the district judge has to have a clear effect on the jury it doesn't seem there's any evidence in the record or development of any other than the conviction that would indicate the question had any palpable outward effect on the jury your honor i would if i may i mean i know i mean in my rebuttal time but but if your honor would i can tell you that understanding what the jury what the jury decided or didn't decide what effect it had on the jury or not that cannot be known that simply cannot be kno absent trial counsel going back in the jury room sitting there taking notes that's the only way that's can that can be done and so i agree that hill sets that up but the conclusion that the jury that we have to show that we have to show evidence that the jury was affected simply cannot be done the point of it is the say the jury could have been impacted and if they could have been impacted then there was the then the error is but it does have the court counsel my name is charles scott latin i represented howard monarch caraway at trial i also represent him here on appeal mr caraway very raises two issues on appeal one concern the two substantive obstruction of justice counts in the indictment count fifty nine and sixty as it relates to the application of sentencing guidelines three c one point one without abandoning particular issue i want to say i want to confine most of my comments to the second issue in that case and that concerns of sufficiency of the evidence presented by the government to justify guilty verdicts and the substantive obstruction counts the nine hundred sixty can i ask you question certainly i tend to agree with your briefing on the issue of the i mean the statements the defendant made to the f b i and probation in the supreme court is that materiality after all these years is now a question for the for the jury and the jury found materiality because they convicted so how do we review what appear to be pretty bizarre statements that law enforcement might not rely on in light of what was a factual finding for of a jury that with that we may not you know without serious consideration take away from the judge i believe materiality is not and not a material issue in the obstruction of justice counts and of course your your interpretation of my issue is heavily fact dependent and so what i'd like to do is just kind of explain what the facts are concerning these two particular counts same for both of these people and there was a handwritten telephone number at the top of the script caraway told these two people separately to call that number and whoever answered the telephone read this script to them neither one of these people did that as a matter of fact ms fleet and i believe gave a copy of the script to her lawyer but there was never any real effort on the part of fleeting or dale to communicate any obstructive information to a federal law enforcement agency it it's simply a script that was handed to them by caraway he says call this number actually the number turned out to be the number of the u s attorney's office in birmingham which i've called many times so i recognized it right away but there were there was no real interference on the part of these people concerning the ongoing investigation and by the way  this particular obstructive behavior took place about a year after the charge to conspiracy was over with now that doesn't mean the investigation wasn't ongoing i understand that but it does put things fower after the u s supreme court reversed and remanded it back to this court for further proceedings the chaff and case stands for the proposition that the burden of or the evidence in this case must be reasonably likely to influence the federal investigation you had previously held that they were required only a possibility that this influence or this  would influence the federal and investigation but that reasonable likelihood standard has now raised the bar so judge blackburn didn't know i didn't know no one knew at the  time about chaffin because it was decided about three months after we filed our briefs so that's that's our position that the standard proof is changed the burden of proof is changed the reasonable likelihood standard was not quoted in the interpretate ard quoted by judge blackburn and her consideration of by rule twenty nine motion it was not quoted in the jury instructions which were pattern instructions from the eleventh circuit at the time good morning jason for the appellant more t davis i did not represent him in the initial trial would come before this court on this morning was several issues on a interference with the trial judge in the trial i wasn't there but i read the transcript as this court has but mistrusts i believe also had an objection that was left  open or not ruled on which we've listed as one of our arguments as well thank you so by not ruling on mr davis's objection and then moving on to sentencing essentially c n n understand how the argument it looked pretty clear to me that the kelso withdrew the objection i didn't see where during the objection your honor we're talking about the objection to the role of the a fan yes ma'am well i guess you know the record all speaks for itself but when i read the record it appeared to what i recall is that she just moved forward with the sentencing him i think she said something to the effect of is that all and then there was no statement otherwise so she didn't move on at that point but the that particular objection and this particular defendant's role in the conspiracy overall drastically would have impacted what his sentencing was more specifically she penalize tim for going to trial and more than once she pointed out that he should have pled orsen the case should i think in one one of her quote she said i wish she had made different choices about whether to admit responsibility and then what it seems it seemed like she couldn't make out the factual basis for the plea on day one the judge said you can plead guilty if you like on day two but we have to get the trial moving here and then and then ultimately  he certainly could have but for her to enhance his sentence just because he didn't plea or more specifically the statement that she main that he did not admit responsibility even at sentencing and she increased his sentence by fourteen months and you know which is more was a case recently the eleventh circuit u s b george where the allocution was left out for that particular defendant and i think if you take that in context what we're dealing with here  objection in form of a an allocution if you will to be able to defend yourself at sensing and then the fact that she penalize him but i feel for going to trial and not standing before the court and emitting his guilt at that time and certainly if he felt he's not guilty he has a right to appeal which is why we're here as well good morning michael going to be for the united states may please the court just to address a couple things really quick that you're correct that the judge was withdrawn this document one twenty one in the record where it was issues of the other pellets however because they're really specific teach one i think the only one that actually is adopted by all three in the government's opinion would be the one about the district courts conduct  sort of go backwards and the order that they had to issues will address were addressed will and will of course tend to ask answer the questions that the court had but quickly with regard to the being punished for going to trial the record just simply doesn't reflect that courts are allowed to give defendants lower sentences when they accept responsibility it's built into the guidelines the record reflects here that the court was just expressing that she didn't have any reason to give them when he had seen in that regard because neither mr davis nor mistrust frustrated these were substantial sentences and in the fact that during the sentencing of miss trust the government read from her facebook post after the convictions had been there where she was still expressing that she didn't do anything wrong that she was a victim and light of the overwhelming evidence in this case it was frustrating to the court and mr truss at sentencing said your honor if i'd known this was a scam i would have been involved again the evidence in this case exercising their right to go to trial as to the caraway issue i would just say that the number was for the u s attorney's office and there was testimony a document to a five page thirty seven that it was for the united states attorney's office which meets the definition of a law enforcement agency under the statute he gave these two witnesses what they called one of them called the script where he instructed them to call the number and to give this information to the united states attorney's office he knew he was  it by the f b i so as far as the whether it's reasonably likely that it would go to a federal law enforcement officer i think that question's appropriate to ask when it's not clear here it's clear that he this information to go to a federal law enforcement officer with regard to the district court's conduct recognizes plainly or there's no objection we would just simply disagree that the court cross the line showed any bias towards one party or the other cour are not required to sit silently and be disinterested parties during trial obviously a court in every case i can remember reviewing is asked to rule on a motion for judgment of acquittal at the end of the case so the court needs to hear the evidence the court needs to understand the evidence and it's perfectly acceptable for the court to ask them questions during the trial nothing here in the case of the court cross line it became an advocate for the government fact one example of where the court got frustrated because the government didn't get evidence out of the cooperati witness that the cooperate or expected something out of the plea agreement the court prodded prodded that the government to get that information out it didn't come out of the court got it out and she did that appropriately in our  view because she said the jury needs to know that the jury needs to know this proper any witness is expecting you to recommend a lower sentence completely completely appropriate so we don't think there is anything to show that there was misconduct on the part of the trial court if there are no further questions the government is satisfied to rest on its briefs with regard to the remaining issues thank you that right united states v right is an appropriate case and here's why right stay as that the trial judge has a duty to conduct the trial carefully patiently and impartially  must be above even the appearance of being impartial to the prosecution this record is plain and complete and fall of instances where the trial court went out of its way not only not just asking for some clarification so it could understand the evidence then it went out of its way to help the government make its case because the judge wanted the jury to convict that's the that's the only reasonable interpretation of the trial court's actions and even the appearance of partiality to the prosecution is she questioned the government's witness about the fact that they were getting a benefit for their testimony against your clients i mean seemed to not be harmful to your client that seemed to be helpful his example the weather said well if it's so judge if i if i can see like a minute i just want make sure i understand the point of the question is that so if if it's helpful to my client then it's ok but if it's not helpful my client it's not ok i think the concept has to be that none of it is ok your argument is that counsel was ineffective i haven't raised that effect as a matter of law practically i haven't raised that argument because that any judge would know it any lawyer would know to call it to the judge's attention that's all i'm saying and i don't i don't disagree but when the trial court below response to an objection saying judge i think you're leading the prosecution's case the judge says well i hope i don't do that gee i hope the lawyers think i don't do that but then repeats and continues to do exactly what i think whether standpoint i think had please the court let me clarify something mr billingsley said he was correct but he didn't give you all the information when it came out that the numbers of her hand written on the top of the page of exhibits forty eight and forty six were to the u s attorney office i believe it came out through the testimony of andre dale the indicted coconspirator who said at the time he was asked i did not know that that was the number of the u s attorney when mr caraway gave me that script but now i know that was the only reference to the fact that there was a federal investigative agency so and mr billingsley says it wasn't clear to him or it was clear to him at the time but of course it was clear to him at the time the issue is was it clear to the jury and it was not clear to the jury so the government has not carried its its burden of proof and in regard to those two counts and let me say something about judge blackburn before my time and found i'm the only person in this room that sat through two weeks backwards to conduct a boy can call if we would them so that they could enter their pleas and they would not so if you can tell that i like