sat with our court many times and we are delighted to have her she sat with distinction on the united states court of international trade for many years she was appointed to that position by president reagan in and eighty three she served as the chief judge of that court as well from two thousand and three to two thousand and ten and we are delighted to have are help us with our work once again  second just pre fab savation for those of you who may not be familiar with our lighting system you will note that there is a green light which means obviously you can go an amber li which is a two minute warning and the red light means your time is up we'd be much appreciated if you could bring your remarks to a conclusion when the red light goes on it doesn't mean you have to stop in that sentence but if you could wrap it up would be much much appreciated rd in the last observation as you proceed with your oral arguments you can safely assume we've read not just the briefs and the record excerpts but in many of the instances we've had a chance to review the record as well so feel free to go right to the the heart of the argument you don't have a whole lot of time and you don't have to spend a whole lot that if you don't want to just as prefatory matter about things that we've had a chance to fully we're review that we welcome you again to our court will begin with the st case which is the united states versus marl good morning good morning and may have please the court without publicity at all other checks are insufficient in comparison to published today all other checks are small account that quote comes from the supreme court's opinion in richmond newspapers issue i'd like to address the question of whether or not that issue is preserved the government has argued that that issue has not preserved but and sealed document two hundred and fifty four dollars mr miller move to the o p o report and move for the production of brady materials or an alternative for a dismissal of the indictment but i thought he i thought the claim was that it was brady material there was never a st amendment or th amendment claim raised he i think that he argued that that record should be unsealed in this motion and document two hundred and fifty four if it had to be tell the court that it was a st amendment or th amendment issue i'm not sure that he specified necessarily the exact basis for the argument of which amendment it was and so i but i think that's reflected in this court's decision and the united states versus ignazio act which doesn't really go into the basis for the constitutional pinnings for the issue or for the doctrine it just says that when you're sealing a case are sealing documents or closing a courtroom there's a test that you have to meet and so  this it was filed on december the th two thousand and fifteen motion where he acknowledges that he is compelled to file his motions under seal but he i think disputes the basis for that sealing and says that it is are objecting and saying that there is insufficient basis for sealing these documents so we were arguing at that point that the issue is preserved and as the court knows it the issue  preserved the issue is structural error and therefore as calls for automatic reversal if there are as error running the test and why the kind why the documents here should not have been sealed and terms of the structural error i think those cases are weaver versus massachusetts wallaby georgia and presently georgia and those  miller would have been convicted and that's why a structural error and therefore leads to automatic reversal and where those sealed records issues in all those cases you just cited it as the act as a sealed records are the ceiling of courtrooms but this court and the supreme court have recognized that the same rights the st amendment rights the th amendment rights go to air extend towards the ceiling of records and certainly that's the case here where there's an entire category of information that was not available to the public so a member of the public could look at the docket and would never know that this was an issue that there was any sort of problem our government misconduct at issue in this case and so when you see all not just the investigative reports but all of the pleadings and shut the courtroom people were kicked out of a pretrial conference because of the order sealing the records so when you have all those factors i don't think there is any open question as to whether or not the right to a public trial and the st amendment rights extend to cover that that's pretty clear that they do i take it with respect to the sealed materials you had the opportunity to review them out be it under in a limited way that is so you couldn't take command of the u s attorney's office you were viewed them there but you had to access at least to discern whether there was something there that you wanted to use and if so how and that you were able to flesh out with the court to have that right i should be clear that neither i nor my co counsel represent a mistrial so when i say you are really i just mean counsel way back when yes so he had the opportunity to review the materials i think because of the trial deadline it was maybe compressed but he certainly you know there was taking handwritten notes as to those documents and did not was not allowed to have a copy of them when copies were requested the district court denied the request for copies and therefore he was pretty hamstrung in his ability to maybe i got into this wrong f the record but i thought i recall that one of the problems was even though he was allowed to take notes he didn't identify which documents to the judge particular documents that he thought he needed that he didn't get and i thought that was one of the problems for the judge i think ok so he specifically requested a series of documents from the government and a letter and i'm not sure that that letter was ever made put on the docket but in the letter he identified all the different pieces of materials that he wanted and that was discussed at a pretrial conference and so that is the say there was a detailed explication by number understanding of what he was looking for was incredibly limited and was not did not reflect what the argument he was actually making at the pretrial conferences so after preacha conferences he made several comments where he was explaining that he wanted this information because it was relevant not necessarily the overarching investigation but the information contained in those reports regarding c s three and needed griffin parks that information was entirely relevant to his defense because she's the one who set up the deal that's at issue in this case and there is evidence of communication between her and you know what's fascinating when i reviewed the thing here was that in no way did the district court preclude the defense from calling the witness if you want to call that witness and a tactical decision that was made that i wouldn't call it no doubt because there were collateral consequences of the other stuff that might well have come in and that was sort of a decision by counsel was it not that a strategic call that better may come in it was that he was incorrect and it was impossible for someone to call witnesses that would be hostile to him at trial and ask them to provide information that they did not want to approach in open court without any of the documents to show them to refresh their recollection to impeach them it's so you could if you if the decision had been made the right it seems to me that may not accurately state the record and maybe i don't have it right but it seems to me if defense counsel has said to the judge i propose to call jones as a witness here's why i think it's tremaine and relevant i've got a th amendment right to confront and cross examine and present evidence on my own behalf and this is what i want to do you may rule subsequently that this that or the other thing comes in i'll take it up when it happens all argue it enough i lose i'm happy to live with it but i need access to a b and c the sole that i can properly interrogate a witness that i want to call i want those documents judge i'm holding none of that there was that they were communications or that her belief was that they were ongoing communications with between mr griffin parks and agent cromer and she made that clear she and she says i would like to have impeachment material for anita griffin parks when she is a witness at this trial or some prior consistent statements that that's what they turn out to be that's what i want and then she goes on to say this woman has had a raft of arrest judge and very process and very few no i'm familiar with th did decide not to call her but if she had been given these records i think she would have called her what did she say that to the judge did she judge if i had access to a b c when he then i will call her as a witness because it will make it even though i've reviewed in camera under seal conditions i want to use them in a public forum to beat up the witness to impeach her credibility i didn't read is that she thinks that they need to be a witness i think she says in this preacha conference when she is a witness at this trial which we believe she needs to be a witness and so she's making clear that this is the reason for her request to have copies  one of the other purposes for this so the defense that we articulated and issue to it goes much much further beyond the entrapment defense it shows that the documents that are at issue and that she was requesting and i should have been unsealed are relevant because they show that anita park's crippen had prior multiple prior arrests for drug distribution deals managed to escape those prosecution for any of those arrests including by her husband willie parks her husband and this case terence beebe they were they were all arrested and charged rashi managed to escape prosecution and the reason for that we would submit is that she has some sort of ongoing relationship with agent cromer that is i'm just trying to figure what's the defense and the defense of the mere presence defense and it shows that he was the fall guy basically our client mr miller was the fall guy for this exchange because he was not there i think the records are clear that he was not the one setting it up that miss parks griffin was the one who orchestrated the deal but you would not prevent it from doing any of that i don't think that it was practical to do that when you don't have any of the documents we've seen the documents and you never went to the judge and said i needed them in order to conduct a direct examination of griffin and by god i want  it's the quote that i indicated earlier where she says that we believe she needs to be a witness and that that's why they are asking for that information and there's a quote from the january the th i'm so sorry i'm trying to find the answer consistent state says i would like to have some impeachment here for i need a griffon parts when she is a witness at this trial which we believe she needs to be a witness or some prior consistent statements and that's what they turn out to be that's what i want so i think she's saying i would like to call i criminal parks i need the materials in order to question her and without them there will be impossible to call her i think it also ties into the rd issue where the government  changed completely changed its position prior to trial in the search evidence so we would argue that those are the two reasons why they were called but none of these issues that we've raised are an effective assistance of counsel claims where strategic decisions are are relevant are part appeal preserved below the answer was obstructed we know the procedural posture is the appeal the decision that the district court that mr miller seeking to review is the denial of the motion to unseal mr miller's counsel what is it exactly that you want me to review is brady the only ground that you're actually asking me to consider and counts actually answered yes so there was no mention of the st ground of st amendment rights access neither to common law right to access to judicial records as a result this course of review the decision to deny the motion to disclose based on a plan or standard which obviously you're very familiar with mr m cannot meet any of the four elements of that test if there was no error in this case could the district court apply the proper standard by looking at the evidence and applied a determination that this is actually a discovery matter  this court's decision and prayer in chicago tribune case and u s versus andersen case make clear that discovery matter surely not within the purview of the st amendment or to calm a right to access and it's more and recorded in that case even the water case realize even if you don't have to show prejudice to get a new trial you recognize the proper remedy is not a reversal of the entire conviction but merely every man to determine get it suppression hearing to determine whether or not that have impact and so wallers doesn't mean even if you find that there is a structural in the case doesn't mean that misdemeanor miller gets a brand new trial it just means that there's a suppression hearing that the court needs to determine whether or not it impacted his substantial rights for any consideration of future motions so no it was not it did not apply in this case the problem i think judge marcus and just black has point out in this case is that mr miller failed to specify have pointed out judge i'm making a strategic decision not to call ms griffin to the stand because of your ruling or judge i cannot i'm going to call ms griffin but i'm not going to call her because i don't have access to the documents w actually reviewing the materials in camera and determine whether or not the items are brady material and whether or not the items that are under seal relate to the entrapment defense bad mr miller tried to raise the district or looked at it even afterwards in an order entered on january th of the following year two thousand and sixteen that i do not want to prevent counsel from actually raising the defense we do not see any materials that are under seal in my view that would justify an entrapment defense as a result but he still did not prevent mr miller's counsel from arguing that arguing mere presence what mr miller's counsel did at trial is made a strategic decision to argue that instead of miss griffin being the mastermind the case that it took an approach that mr beebe was the mastermind of the case and in fact that mr miller did raise a defense of mere presence in the case there's absolutely no prejudice on their plane or a standard that they can meet that rd prong and government aren't respect we argue that they would not err at all in this case argument mr miller's counsel did raise that mr beebe was the mastermind and then mr miller was not a mastermind or a participant in any material way miss griffin although was mentioned throughout the trial was never called to testify mr b v was a cooperating coconspirator kate did testify and did testify as to miss kristen's participation in the drug conspiracy to the extent that mr miller argues that lack of information judge that i need these documents to in fact impeach miss griffin or any testimony with respect to ms griffin by way of note even if the materials the opi are investigative report which by the way it's under s contained in the report may be relevant for impeachment purposes to the extent that they're trying to test the failure of to refresh memory we're pretty we're assuming in a hypothetical sense that the witness would be lacking in memory  have that document available again mr miller counsel could have done that and in fact that there was a actual prejudice or a need for the document she could have asked for the documents again but unfortunately  not to do that and so the district court did not have an opportunity to actually make the ruling that mr missed their miller's counsel is asking the appellate court to reverse thanks very much thank you in motion to unseal the up your reports document two hundred and fifty four dollars counsel for mr miller specifically said mr miller intends to cobble subject witnesses even if the government declines to call them so that she made clear at that point that she did intend to if you look for example at a later hearing held on january th two thousand and sixteen the court can defense counsel had a lengthy discussion outside the presence of the government about the potential evidence real facts delving into griffen and her role and the judge said he could not hypothetically rule at that time about how pursuing this point could open the door to other evidence but offer the view that if indeed if it were called and that was your call the defendant's call then it seemed to the judge that the other stuff would come in as as well and the defense counsel at one point says i understand the risks i run i truly do we've been agonizing over what to do in this case it seemed to me when you read the whole record the defendant had a difficult call to basic and the call boiled down to this if they called griffin they ran the risk that other stuff would come in and the other stuff was more damaging than the benefit they thought would endure them from calling it worse when they made the tactical calls they knew what was in the record because they reviewed it and never said judge my decision turns on be being able to undermine cross examined and impeach with these materials i need him that never happened and that's the trouble that i'm i'm having here because it looks to me like you had a district court judge that was very receptive to the concern and the problem that the defendant had reduced what am i missing here i think there are a couple of issues st we've raised that the government should not have been able to change its position to threaten to bring and additional search material and so that's a rd separate issue that we're raising even if the court disagrees with us that this issue has seen the threat to bring in that material there is the judge saying to the fans it might have to come in the the government said at the beginning that it didn't intend to use that search for any purpose but it also didn't say oh if mr griffin testifies we want you anything they said not for impeachment but i didn't understand he didn't say impeachment of mr griffin at the beginning right and at this point it's the judge  saying i think that's in response to what the government was saying at the initial i believe the december th hearing the government is the one who brought it up and said and judge if we're going to go into this then we're going to bring in th search material and so that's when the judge has ok well if you're going to if we get into this then you're allowed to do that and so that is the issues that we raised i'd like to address the issue even if this issue isn't preserved even if  suffice to show that the issue or that the error affected the defendant substantial rights even if it didn't affect the outcome of the trial so even if the issue was not preserved where are the i think that it's