six a federal bribery case we're here on the issue today of whether or not mr hall received a fair trial in this case now will be candid with according to you that i understand the law as it relates to the standards for a mistrial we have argued in two particular issues here serious issues we believe that mr prouse should have been granted one of the statement of the wife of the defendant they were going undergoing a very difficult divorce at the time of this particular trial and the other one issue and i will start with the why but the other issue involves the use by the prosecutor in his rebuttal closing argument of comments the defendant's right to remain silent now i understand under a mistrial standard it's abuse of discretion i understand it's a very difficult high standard but where there is substantial legal or  that has occurred or with a defendant's constitutional rights are violated or there's a clear reversible error then you meet that standard and we believe in this case it happened for example your right to the heart of the issue a relates to the wife's comments we filed pretrial and motion regarding the marital privilege in this case because we knew all along that the government been talking to the wife and we were not sure exactly what she was going to say so we wanted to have an issue a hearing to determine what's privilege what's not privilege as it relates to her testimony we did it the district judge after a hearing into her or granting sustaining our motion that various comments should not come into the trial and one of those comments to them really but one in particular dealt with a comment regarding the questions of the prosecutor related to what did the meaning the hearing and i've got the transcript of the other hearing and it's in your record of the hearing we had on our motion regarding the spousal privilege the prosecutor went through these questions and in there he says didn't you meet with the agents and didn't you have knowledge of some other kind of under cover kind of stuff regarding under the table actions as a prosecutor need that he had read the f b i reports on of the interviews that she had said there were other activities involved that involved under the cover kickbacks so when he asked this question the trauma he already knew he knew what the proposed answer what he hoped would be the answer would come out  says well there was an incident where it was under cover under the table things were guarded kickbacks frankly there without a courtroom at that point this is the third day i think of the trial and once you have a spouse on the witness stand saying there's something about unrelated uncharged activities under the under the table kickbacks case over that jury didn't listen anything else they said here yet spice the spouse who worked in the office of my client who wrote checks for the business saying i'm aware of other unrelated activities and charged activities not a part of this case involving kickbacks so what's a jury going to think now the government's going to argue and i think the court ruled in her motion and only mistrial motion there's overwhelming evidence there's overwhelming evidence but we're talking about a fair trial here what is fair to the defendant in a statement like that gets me it's over and it was over in this case and as you probably read the verdict in this case after a long five day trial involving over hundreds of documents  there the gentleman is shorter is did testify others no question he testified he testified concerning what he believed these payments were far there was no direct testimony about any quid pro quo and under six hundred six you don't have to prove a direct quid pro quo but he was saying i think i got these payments because i was expected to do something for this man in the future in the allegation was that you later he would lay off of him on the strip mines citation violations so there was there was testimony about that and we wanted to you know great lengths to try to attack there so there's no question there was there was evidence we never disputed payments really for example on this whole issue about and this is kind of secondary this issue about whether a settlement agreement documents should have been admitted into evidence to show that he didn't have a motive because these fines were going to be paid by another mining telephony and that was not admitted it was admitted that there was a document in the beginning that showed there was agreement with this mining operator to indemnify him later on two thousand and fourteen there was a settlement agreement with the state of kentucky that show that confirmed that the settlement agreement was two a you know i understand it in terms of evidence issues that may not be where you got there's an agreement on which was the key to you and the fact that it was actually pay five ultimately commentating and in showing later that there was an agreement by this other money coming to pay all these fine they assumed all these fines my client didn't mind he just hailed the permit he had the property he contracted out to a mining company to do it's back to the wife's testimony do you remember the introduction of the wife my memory is that there was an indication that she was a hostile witness or that she i that his response to the jury was adequate you could have asked to approach the bench nor did you at that point so you then did of jet one of the instruction the testimony at trial you know i'm asking you did you object to the instruction to the jury no no that you could have asked to approach and you could have had a conference with the court at the hearing and me and if he want to or she want to offer gotten the judge wanted to elaborate further based on your objection your statements would not be made to the jury only an additional instruction would have so there was no i don't disagree then i think we talked about that a minute ago when she made an emanation to the jury i did not make another objection  yes and twenty five thousand dollars fine to believe it was in this now the up and all the time is probably going to struggle of talk a little bit about the issue concerning which i think is another issue whether you agree with the big issue about her specter and they took that seriously they cited investigate in the process the inspector general for department of natural resources was to interview had rotted of people he says my client either an e mail or text message and we have that and it's in the record here requesting that he meet with my client e mails back and we have that here it's in the record that he respectfully declined to talk at that point in time and so he did not talk he refused to go in to talk any further he made the original complaint and then did not talk we believe that there is a clear and unequivocal and unequivocal bow talk it is true but there's just a series of cases one is salinas versus texas from the supreme court right and the other is abby versus how from our court and why can you say that this is an express invocation right remain silent what once when i say is it well what's your best case that says that his words or what he did or said is express invocation of his right to remain silent as opposed to just being silent your opponent is going to argue that there was no express case and that was right when you know i don't know how much more clear you can be when you say i don't want to be interviewed around the clock to be interviewed don't bother me go talk to somebody else i mean that's a very expressive statement it's no different than to express statement but is it an express invocation of the right to remain silent i think it sure is when you're in the midst of an investigation you know there's no i g investigation which could lead to various sorts of and then they in the midst of that they call him or they send him this message saying would you come in to be interviewed and he plans to be interviewed now i frankly don't see a lot of difference in it and if i'm stopped on the street or picked up on a and he tried to get the inspector general to to speculate as to why he didn't testify in any inspector general being a lawyer said i'm not going to answer that i don't know i can't read as mine i'm not going to do that and so he did this issue came up in the rebuttal closing argument the prosecution i don't know what i said in closing that struck a nerve but i must have said something because he came back in closing in basically jammed this thing down our throat and he has a question if you read those statements in a closing argument he didn't just ask the question why what was his intent and why did he refuse to cooperate with the investigation and talk we had an argument at the bench with the judge and she let him go ahead and say that and she said to mr tiger i'm not sure you will go down this rabbit hole that's in the text i don't think you want to go down this piece of why do i want to ask that question again he asked that question again and then he proceeded to to to the jury in rebuttal closing comment on what that meant it was his theory his belief his opinion on what his refusal mean which was basically the damaging good morning may please the court john grant for the united states attorney to the first issue about the statement that kickback statement as this court is aware for the this court to fine that the district court abused its discretion we have to look at five factors and we've we've already talked about several of them was the remark unsolicited i think everyone agrees that it was was the question reasonable yes it was a relevant question it could have led to relevant information she blurted out something about a kickback we don't really even know what she mean because that was the end of the inquiry was never remarked on again at the trial was there only me instruction yes i did the government act in bad faith there's nothing in the record that shows that was it only a small part of the evidence yes it was and judge moore as you pointed out the man that was receiving the key products testified and explained that he received for that well the total amount of money he received was forty seven thousand dollars in bribes and because of that he laid off  relaxed his inspections and didn't cite the mines for lots of violations and other people that work for the state other inspectors also testified that they saw there were violations when they came in and wondered why those had not been cited so his testimony was backed up in that regard so that the district court then we did not abuse its discretion in saying that one comment did not entitle the defendant to a mistrial now their closing argument you would have to concede it was a pretty inflammatory state yes yes it was i don't know why we do not dispute that it was an improper statement when she says about a kickback and it's not clear it's really not clear what she was talking about but if you look at the whole trial and as judge moore i think you were pointing out that it's pretty clear that she was adverse they've been separated for three years was what was said just so that they were adverse was it said that they were engaged in a divorce yes she was she testified they've actually been separated for three years and actually heard testimony to really add that much to the case because she had signed that huge check of twenty five thousand dollars that went to the quote consulting firm that the mine inspectors wife owned which was just a ruse to try to put the brocks in to make him look legitimate so she said since she was the secretary and wrote the check that when they coded that in the book she looked back and saw that it was coded as consulting but she said she didn't know of any activity that that company had done for her husband's mind companies that was consulting that's basically what she said and so then he further as and said well had that he said have you know mr hall to use the notation insulting before and she said yes in situations where there was no consulting we had met that was an improper answer but i think the way that judge cowell handle the situation is appropriate i think judge francis you're talking about he had every opportunity to say just not adequate this is so inflammatory that i think we could take a more drastic remedy here and give a more forceful instruction just wasn't done so i don't think you know that no one you know of course always in trial to perfect trial this wasn't a perv trauma of him are it was clearly improper comment we agree with that but it certainly does not justify a new trial give us the background for why the investigation began and i thought there was some other independent investigation or question that resulted in this investigation as opposed to it being solely on the basis of the defendants complained that the he was that this mine inspector was on the radar because of these other inspectors going in and seeing that there were these violations were not being cited so he was he was the inference from all the testimony be that he looked like he was a bad employee he was a bad man inspector but basically the defendant got himself in trouble when he actually made the allegation there was extortion going on because what happened is after about the payments had been made the man inspector wanted more money so he was approaching the defendant saying and trying to get more money out of him and so that they were for they all this friction had developed between the defendant and the mine inspector and then this that mr hall was that in the state represent the house representatives of the time he then made a complaint about that this money specter was trying to extort money from them but then by the time that the investigation actually started and the office of inspector general  inspector said email which is on appendix page fourteen he said my name is alan wagers and i work for the i g is office key factor gave me your cell we are investigating a state employee would like to interview the relative to the sta allegedly made to mr thacker in the end you please call me on my cell so we can and we can set up an interview that was in response to him making the point the defendant mr hall and then i think it's interesting to look at exactly what the text says it says respectfully mr this is the response mr hall this is the pin expects fifteen respectively mr wager no comments were made directly to me i'm in the coal business and do not want to be interviewed and politely decline your offer mr thacker my partner mining electric gave you all the info you need i have no further comments thank you for the invitation representative debbie keith hall so i'm not sure judge moore you were talking about the parameters of the invocation t to remain silent certainly there's clearly there's some statements that were clearly the the right and some that aren't i'm not sure you draw the line but i was suggested this clearly isn't even approaching the law because he did make statements he said i don't have any  having further comments versus what my business partner told you he told you all the information i don't have any other comments to make and it was quite strange because he was the one that initiated the investigation but i really think the court even has to get into all of the legalities of whether that right to silence was invoked because when the government moved to introduce these e mails the defendant said there was no objection and he even asked the state inspector about these e mails and the defendant himself testified about that so once it was properly admitted the government then can forcefully argue any inferences from the evidence in it in his closing argument so therefore i don't can't see that there could possibly be an error really to the closing argument i would her argument is that there was not even a violation of the right to remain silent because there was by the failure to object to the introduction and they are they not only did they not object they said they're what they had no objection when the judge asked them do they object to the emphasis that there was no objection so you know if there was some kind of right to remain silent then the i mean just a couple of points to reiterate if mr grant is read to you that the e mail text message i think it's very clear he's declining he says it two three times and i'm not going to be interviewed yes he made the complete initially and then he decides not to talk i think that's a clear indication not to talk or does he say all the information if you have been given he says i think you're almost verbatim quoting that judge he says no comment no comments were made respect lead to me i'm in the coal business do not want to be interviewed and politely declined your offer mr thacker my partner with drake a mining electric gave you all the info you need i have no further comments and the only comments he ever made is when he made the original complaint saying i mean shaken down by the mine inspector and i don't and they don't let him have any contact this guy never any contact this guy is a relat 's a laughter object when you're getting into this the judge allows him after warning him you may not want to be on this rabbit whoa and i think the only the cinco and he said i only want to ask one question and he says i gave him a yes this is i submit to you that the reason was because he didn't want to go into the details and answer the question do you have any business have you had any business with kelly short ribs have you ever paid him anything what's this underlying dispute that you have why does he say he owes you this can we see your make records