morning well here the case united states is versus ventura please be sure to speak into the mike fifteen mr ventura was convicted on three counts for ordering a murder over control of a marijuana business in upper manhattan the incident occurred nearly twenty years earlier in august  and resulted in two deaths the appeal raises two issues in the first the trial court admitted over objection extensive evidence of what judge cole told called a horrific arson murder that occurred more than a year earlier than the charged offenses and second i'm discussing the improper removal and replacement of a juror during deliberations the district court held that the evidence of the earlier crime was admissible to prove to complete the story or to show the relationship among the conspirators almost to show how they had a relationship of trust and confidence that they had us together before the crime that the jury had right and we look at it under an abuse of discretion standard that's correct and it's a balancing test correct it is not for all three to me the way judge carter frank did it was a ballad yes and we agree  risk of undue prejudice in this case right yes of course not why why did not why did did he not do that within his discretion because not i realize this is a silly little i understand western but it seems to me that he gave that limiting instruction he gave both when it came in and at the end that was not objected to and that he limited what the government could do in regard to your client's lack of direct involvement and prayer that's a lot going on and as they're answering that question the government urges us to look at this this question under plain error you write so you also have to show how the four zero three issue prejudicially affected ventura as a substantial rights given the other evidence against him  was judged by his let me start there if i may with that with the prior question of the standard of review so we address this in the opening brief and got back to it in the reply both we rely on this court's precedent and a very similar case in the third circuit written by the then judge alito holding that this and the that's the murray case and in that in four or three situations of this kind the judge many  issues really need a new objection to be raised again at trial which is the government's position but the pretrial analysis is sometimes sufficient we rely on the cases which show that in a situation like this where nothing so the issue that was preserved pretrial is sufficient to carry the day for on the evidence for ordinary abuse of discretion standard on a plane or standard the reason why the important reason why there is an abuse of discretion here is if there is an underlying legal question that you have to address first essentially the rationale adopted by the trial court and it's not unusual is there is a rest just by theory what used to be called the rest just i theory the completing the story relationship of the parties but the better view and articulated in some of this court's cases and we're urging the court in this case to address it and articulate it and define it better  in our decision is that the proper limitation is one of intrinsic evidence the evidence should be such that it directly tends to prove the charged issue when we're talking about another crime especially a highly prejudicial other crime the evidence should be intrinsic and here we don't have that nor was it necessary and because there was plenty of other evidence about the relationship of the parties including their trust relationship many of them are members of a family or close friends of the family so it was completely unnecessary to go into the details for through five witnesses and two days of testimony of an uncharged murder calculations by pages and by time they came out a little differently one of the most twenty percent and i don't remember which was which but i counted it on my fingers pretty carefully and that's about i think that's that's a fair estimate the government didn't dispute it that that was so was not one witness it wasn't a passing reference it was how the government started their case and this gets right to where i was a second ago the other limitation on this kind of ruling which which tends to undermine rule for the policy of rule for a for b when you're talking about another crime is that the government must never rely on such evidence for propensity and yet the theme of the closing argument and especially the the culmination of the climax of the government's rebuttal argument was the line mr ventura did what he always did he did in this case charged in the charge case what he always did which the jury could readily have thought referred back to the other offense that was charge that was on charge but extensively discussed especially where  he did what he had to do he took care of his business was repeatedly stated in it was a rhetorical flourish that was used repeatedly in the discussion of the earlier offense in the closing instruction says right the you may not consider those crimes as a substitute for proof that the defendant committed the crimes charge and invite and but propensity is more than a substitute propensity is makes it more likely it's not a substitute but it makes it more likely then the jury might otherwise think it was too that he committed this crime given that it was twenty years ago and there's no direct evidence it's all the evidence of highly questionable credibility challenge witnesses you've got there are many many witnesses and they know each other and they are all accused and in making deals with the government that the jury might have doubted and others have said but if i could if i could turn with less than two minutes to the other issue the introduction of any evidence montanus his arson and murder but it at any point did did he object to the government's presentation of evidence at trial is inconsistent with the pretrial representation or the district courts in limon a ruling no he did not but that's not although i talk about that in the brief that's not the error that we're not claiming that the errors that the government broke their promise the error was admitting the evidence in violation of rule for three and that's what was that was what was objected to and i think the mcdermott case tells us i think that's the one we rely on in the second circuit case that says if that's a sufficient yes yes but when you look at pages twenty seven to twenty nine you seem to be arguing at length that the prosecution's evidence at trial violated the promises and representations the government made to the district court at the in limited stage of the proceedings right it did you know it did and that's showing and that's a part of the showing of how unfair it was but it's not the error ok that's that's my point and it would be necessary it's necessary to discuss that thomas this court strongly established a bright line rule and for very good reason and in the fifteen years since then the court sorry and all the years since then the court has not retreated from that rule even though it has sometimes on the facts of particular cases been distinguished the rule is this if i may if the record discloses any possibility that the request to discharge a juror stems from the jurors view of the sufficiency of the government's evidence then the court must deny the request is so it's an object those cases are when there is an indication that the juror is favoring one side yes or the that's right no hear from the jury is honorable code many members of the jury of concerns with juror number two once he said i have a problem with anyone who has an agreement with the government that goes to your point that's our point that's just that is the possibility right there that's just a smidge and he then goes on the no go zone we are concerned that he will not be fair and open minded as well as he will not apply the instructions the law to the evidence is not open to discussion and judge who will properly has any camera discussion with the attorneys present and it turns out that the man was affirmatively is it lying or withholding information about law enforcement contacts why doesn't that really overwhelm the suggestion that he was anti gun you would have to reject the any possibility test articulated in thomas to say that where the jury where there are three suggestions in the jury's notes not a smidgen i mean the three sentence note this is one of the three sentences and it goes directly to the prohibited issue that is what the court meant by the rule there is a possibility and it's not a mere part is a strong possibility that the juror has a concern with the government's evidence because the witnesses are lack credibility and why because they have agreements with the government and if you allow the government to then conduct a targeted overnight investigation of this juror only they come up with the what i call a minor criminal record i think that's fair  and then go back and say he didn't tell the truth during voir dire this is exactly what thomas is talking about it stems from it stems from the request to remove stems from  agreement with the government yes why doesn't that elicit some kind of concern about extremes and extrinsic bias taking that first one it's entirely possible that he is talking about the witnesses in this case many of whom had the key witnesses a need agreements with the government it's also possible the statement is i agree with you and the us it's possible that he had a prior problem with that manner of prosecuting criminal cases but thomas deals with that by using an objective possibility test and what about the concerns about his refusal to deliberate in good faith they did not say that the jury's opinions this is the other they don't quote him they don't say he refuses to deliberate they say he is not open to discussion which it is there's a wide range of circumstances in the jury room that could have led the other jurors to say he's not open to discussion it's not listening to us very well but it doesn't say like some of the other cases we discussed many system cases like this there are some where the jury flat out sitting there with arms crossed and refuses to talk refuses to deliberate there are cases like that if that's note which in substantial part raises more than a mere possibility certainly an objective possibility of a problem of the government's evidence if you allow the test to turn on what the ultimate rationale for the removal of the that prohibits parties from pursuing their forward your concerns throughout the trial and into the deliberations period and targeting age your who they suspect is against them and going back to find some reason to remove that some other reason to remove the juror that will satisfy the court later and that's exactly what thomas prohibits so i'll reserve my my minute i have run over and i appreciate your indulgence thank you mr smith may please the court my name is michael smith and in addition to representing the united states in this appeal i was one of the assistants who represented the united states in the proceedings below  argues that judge total abuse is discretion in two ways first he contends that judge total admitted too much evidence about an arson that led to a murder that was unplanned at the beginning of events an arson that was committed in further findings where he determined based on his familiarity with the witnesses and the facts if they would be testifying about from having presided over a prior prior trial that the government's presentation of proof was appropriate both to develop the background of the conspiracy in the relationship between the witnesses under united states versus dia's in united states versus gonzalez and also because the appellant intended and did not decline that he intended to cross examine the witnesses about giglio making it appropriate under united states versus koonin for the government to present that in its direct examination of the witnesses with respect to the second argument that the appellate makes on appeal the appellate contends that judge total abuse has discretion in excusing a juror who had in the in judge totals factual findings deliberately lied or withheld information during the process in order to secure a seat on the jury and in addition judge going all noted in order to conceal what appeared to be anti police bias judge total carefully handled both the inquiry of the jury and the manner in which  that inquiry arose when the note was initially presented to judge codell on june twenty fourth two thousand and fifteen it said three things first it said that several jurors had concerns about juror number two on one occasion he indicated that he had a problem with anyone who had an agreement with the government that's what mr goldberg focuses on obviously here that he is anti government i have a problem anyone who has an agreement with the government and to extends to goldberg's remarks we don't want any gamesmanship in terms of who the jury is comprised so in more detail in just a moment but united states versus thomas was concerned with a different problem which was the concern that a juror who identifies him or herself or who is identified by fellow jurors is someone who apparently is not willing to follow the judge's instructions on the law that what may in fact be happening is that the juror has concerns about the government's evidence and so united states versus thomas establishes a rule and the rule is that because it is exceedingly difficult to distinguish between a desire to disregard the law which united states versus thomas says is an appropriate basis for removing a juror and on the other hand a juror's view of the evidence which would not be an appropriate basis for removing a juror a court should not remove a juror on the grounds of jury nullification unless there is no possibility that the juror is in fact seeking to be removed or that the removal is based on a view of the evidence position that is his his criminal record could still be used to remove the juror from this case your honor i think that would be a much more difficult case and i can say that's not what happened here  and there would be some limits on what the government is able to do in a situation like that this court has recognized limits on the ability of the government to investigate jurors when they have suspicions about potential juror misconduct or bias sees that is not what happened here your honor what happened in this case was that in response to the note judge asked the parties what they thought the appropriate way of handling the issue was the government indicated that there had been questions during why dear about any biases individuals had with respect to witnesses who had agreements with the government juror number two expressed no concerns about that in addition the note made clear that the jurors felt that juror number two would not be able to faith or hostile interaction between jurors does that necessarily suggest that criminal record review is is appropriate let me take this into set your honor with respect to the no itself the government did not investigate or did not look at your number two's criminal history records in response just so that note what the government did in response to that note in which judge coded in response to that note it was first of all to discuss what the appropriate step should be the government said that the note suggested the possibility that juror number two was not willing to follow the court's instructions on the law and therefore asked judge total to inquire simply whether you're a number two would be able to follow the court's instructions as the government made clear if journey over to said yes your honor i do believe i can follow the court's instructions on the law then the government felt that that would be the end of the inquiry just nevertheless in light of the concerns in united states v thomas and  need for a court to exercise restraint and inquiring of jurors declined to inquire of juror number two at that point the jury later in that day returned to the courtroom and transcript pages nine thirty three to nine thirty four before the jurors were excused for the day your number two had an extraordinarily unusual interaction with the remainder of the jurors and it was in light of the government's perception of something unusual about journal or to in the possibility that he might have a connection to this case that led the government to look at the possibility you describe a bit more yes your honor it's very amorphous because on your unusual interactions could be nothing more than disagreements about the case or the evidence or anything what is what is it that in the lead you then to do a criminal record investigation there reaction that the juror had to the remainder of the jurors in the courtroom  made us feel connected to it when viewed against the backdrop of the note raise concerns for us approximately three weeks after this court had decided you know that's what i'm trying to understand what are you what are you talking about the concerns were simply that juror number two appeared very hostile toward the remainder of the jurors in the jury that hostility reflect is captured at transcript ages nine thirty three to nine thirty four we also mention it later when we're having a conversation with judge total essentially what happens is that juror number one the for the for a moment at the very end of the day when judge codell instructed the jurors that they all needed to follow the court's instructions raise your hand and said that she had a question for the court juror number two in a very hostile way turner and and said it's not a question judge chordal said that the jurors should not raise questions in court in that manner  and before just going to have the opportunity to say that juror number two appeared to be trying to stop the for a woman from saying to judge what her concern was he said it's not a question it's not a question the remainder of the jurors then almost in unison said it is a question the concern that we had was that it was possible in our view that juror number two had somehow indicated either some connection to the parties to the case the locations sort and so we were concerned and and if you'll recall your honor this was happening on june twenty fourth which was approximately two weeks after this court decided united states versus parts in which the court vacated a conviction because a juror turned out to have lied during voir dire about biases that we had in favor of the government and we had no way of knowing what these potential biases could turn out to be if there were any so we conducted a quick check to see if  r number two might have any arrests with any relevant players whether juror number two might have any interactions with law enforcement that could disclose any bias unless it seems that in the district co you seem to rely pretty heavily on your concern about the cooperating witnesses statements the jurors statements but in your brief that seems to more or less drop out mike right i wouldn't say your honor that we rely any more heavily in the district court on the statement about the cooperating witnesses this was after juror number two was was removed the appellant or trial counsel for the appellant argue that there had been government misconduct the government discussed this before judge  cohen explained the reasons why we had concerns that there might be some connection between juror number two in this case and we indicated that the interaction that juror number two had in court was a significant part of the reason why the government had that concern in addition to the concern that that one might have is that his expression about his his views about cooperating witnesses may have been the motivating view as to the government's undertaking a criminal record search i'll address that in two ways your honor the first is that was  not obviously that was something that the government took into consideration but it was not the only reason and it was not the motivating reason why the government inquired into that you're the motoring motivating reasons included as i mentioned before the jury's interaction in court and in addition the jurors described refusal to deliberate and apparent inability to follow the judge's instructions  there was some indication that there might be an industry interest extrinsic bias and so we would never have asked for and we didn't ask for judge total to remove juror number two on the basis of the note alone our request was simply that you judge total inquire of the  and he declined to do so and that's what's significant about judge totals handling of this issue judge total recognizing that it is important to be cautious in how one inquires of a juror did not inquire of the juror at that point he was later then presented yes circumstance where he's cautious but then you can do the criminal record investigation your honor a couple of things about that first of all of the question yes your hon r a couple of things about that the criminal history investigation that the government conducted in this case did not in any way impinge on the juror juries deliberation there was no contact between jurors there was no there were no taken in any way to affect the jury's analysis the government pulled a rap sheet that had a pending case involving an arrest for criminal possession of marijuana for which you're a number two had been arrested just four months before the trial for  i would note that during voir dire there were jurors not your neighbor too but there were other jurors who expressed in understandable concern about whether they'd be able to fairly evaluate the testimony of witnesses who had agreements with the government and all the parties at that point agree that a further inquiry would be appropriate when a juror expressed concerns of that sort and in one instance there was a juror who was able to say that i believe i could still fairly evaluate that evidence and that your was allowed to remain in the veneer and there was another juror who said that i don't think i would be able to fairly evaluate it and all the parties agree that that your should be removed it is not in the government's experience in unusual  suggestion for a juror before any meaningful deliberations had begun to say that there may be some concerns about witnesses who have agreements with the government there is no indication in the note that the juror said that in light  to a trial subpoena and whose testimony would have been sufficient to sustain a conviction so the issue was not any concern that journey over to was a holdout when deliberations and not even gone on for a day  this point the note having come on june twenty fourth and the jury having been charged in the afternoon of the previous day you talk about you characterize it your nose as setting forth as you put it with unusual specificity specificity page forty one juror number two's refusal to write in good faith but that seems to be somewhat different from the district court's understanding of the note which it viewed as and i quote an early indication by the jury that is having some difficulties reaching a verdict evidence that they were quotes disagreements with one drawer and an initial indication that other jurors are not getting along with one juror what he said seems to have been different from what you are saying and i would say your honor that the two sides are not are not actually different what the government was proposing was in light of the concerns that your number two appear not to be willing to deliberate that the court should inquire further what at least as i understand it judge said in response was that it was too early to really have any concerns that that was going removed that was never the government's request and in fact the next day when the government returned with evidence that juror number two may have in a number of significant ways either falsely withheld information or lied reflected some bias or some other reason why journal or two should in fact be removed judge cotto vend conducted an inquiry on the basis of that evidence and reach the conclusion not challenge on appeal that juror number two did in recognizes the importance of preserving every defendant's right to have impartial jurors consider the government's evidence and reach a verdict consistent with their consciences what united states versus thomas  does to protect its jurors is a defendant's right to a partial juror and as this court has recognized in cases following united states versus thomas including united states versus baker and united states versus sproule that if there are reasons unrelated to the possibility that a germ might have doubts about the government's evidence that a district judge considers and relies upon in removing a juror that that falls outside of the concerns that thomas is designed to protect in the two quick points on the second issue the government's four minute testimony of matters outside the record is a perfect illustration of why thomas was  wise in articulating an object of not a subjective rule any possibility that's an object of test if we are going to get into prosecutors testifying about what their motives were to look into a jury which is not on this all parties have a right in civil and criminal cases to an impartial jury and the government has and entitle men to an impartial jury as even in a criminal case so this is a but the defendant's right under the sixth amendment is unique and i would not i don't need to argue and wouldn't argue necessarily that the very strict test articulated in thomas works for the benefit of any party other than defendants whose the objective test looks to what the inquiry the request to remove the juror the original request removed your and the inquiry stemmed from the ultimate reason for removing the jury defeats the benefit of to look only at that they emphasize a very negative interpretation of the supposed so called hostile interaction between the jurors this juror against all the other jurors which by the way during the the colloquy with judge cultural the juror said it's because he was the only smoker on the jury and he kept interrupting the deliberations by needing a break that's why the jurors were against him thank you thank you thank you both for your arguments the