amendment guarantees every defect however heinous the crime which each version however compelling the evidence against him the right to an impartial jury an impartial jury being defined as a jury in which every single member  their decision in the case solely and completely on the evidence of the deuce to trial free of any extra this court has thought in case wrote that that right that no right goes more directly to the heart a trial in order to secure that right the supreme court has mandated the process and remember versus united states the court held that not separate but related requirement is the hearing the defendant is entitled in certain circumstances to a hearing in which the defendant is allowed to participate and has an opportunity to ferr held that right is protected not only by the six women but also by the due process so now if we agree with you that the district or to abused its discretion here would we re man for a ram or hearing the this trial and why not to why not a ram or hear well early because the trial did more than a year and a half ago and i think it would be very difficult to bring the jury back in we don't know that  don't i'm not saying it be difficult to locate the jurors and bring them a book even assuming that they were located abroad and i think it would be very difficult to to the cockpit that were dear of them at this point in time more than a year and a half after they decided the case is going to get to the heart of what was happening at the time what is what is your core objection here as to what went wrong that nothing's on the record here that rd parties conducted the investigation rather than the district court all that is to court staff according to tell us what the the the government filed twenty eight j letter the other day citing a case this court decided last week now the court did take action each time and if you're talking about the alleged photographing the court took action what was wrong with the action of court the act what was wrong with that action is that under rever that with the court was required to do was to hold a hearing with the participation of the defendant and the defendant's counsel that's so you're saying a failure of the court to conduct the hearing rather than to have it staff members interview the jurors is the the core just plain that you have here in fact i think i mean in rember the court clearly that when there is a reasonable suspicion that more information is needed the record presumption and the record entitlement to a hearing is triggered in rem or the court itself let's bring court itself said that the district court should not conduct an ex party investigation but that investigation should be won before the defendant and in which the defendant has the opportunity to participate in fact what the court did here comes close to what the court found to be problematic  to this point and i think that that was a clear error under remedy you know we have two other cases this year i believe don't we from the same district judge yes i think that's right and  each case the judge each of those cases the jury just did pose questions directly to the jurors that is correct did he not yes any explanation for why god did not occur in this case i don't have and  impose those same questions to each of the jurors we would not have a record and you know because i don't read those cases as posing them to each of the jurors i think that the procedure was very similar to the procedure here  personality found out about the so but it's let's just assume for purposes of my question here that i remember the facts correctly but i understand hope at the real facts i think in those cases i think it particularly in small the district judge wearied the juror who raised the issue right whether that juror had spoken right but i don't like she said he had to talk to all the jurors just thirty seconds ago i think i said that to me yes and i do i do believe that's true because it's clear in this case at least from what we can tell that this juror told all the rest of the jurors that this photographing incident had happened so all the jurors were aware of it but i thought you were telling me that in those earlier cases that the judge talked to all the jurors is that your submission you know it's not ok the judge i think in those cases talked to all the jurors that the judge had reason to believe were aware of the external contact right and if he had members of his staff talk to all of the jurors in this case that he had reason to believe were a problem that would be wrong because it has to be the district judge and that's that so basis for your basis ok i thought that was i thought i'd just say that your core objection to the ram or why i thought you just said that to me what you said was because it have to be the district judge that's what i say asked you in the question we got here and the objection is not simply because it was not the district judge the objection is that the examination of the jurors was not conducted with the participation of the defendant as ok so you would have to say that those earlier cases were conducted with the participation that you think it's necessary right yes i think that's right ok and if they weren't then they w b then then you would be confining to just whether it's the district judge or not in this case directed to where the jurors could remain impartial no that's as far as we know we do not have a record of exactly what the staff asked the jurors there is no written record that the judge constructed the staff to his clerk to take notes very generally about what was asked so we don't know but as far as we can tell the judge told the the his staff to ask them simply whether they were aware of it and he told not to ask anything further so we can we need to assume that know i'm wondering counsel is a practical matter what can you do and i understand your point i think it's well taken but in a case like this how could the jurors not be intimidated by the facts of the case by the  the fact that they cooperated with law enforcement was murdered i mean it's a horror that factually it's a very challenging case it certainly is and what what what things that the jurors pointed to that caused them concern the jurors this is not a case like in in the u s versus king case where the government sites where the jury gave their verdict and said we're concerned about our safety and the court there said they're concerned because these guys were gang members and and violent people there's no external conflict they're related to external contact but here the jury complained about three things one they said that the defendants were passing notes and looking at them but that wasn't extrinsic information i  jury well how how is how are the st three incidents ext and well they're external because they encourage the jury to decide the case based on a factor external to the evidence the jury in this case said look we are concerned that these people may know where we live and they take after me take retaliation against us and they did this immediately after questioning the concern the killing of a of a cooperator and the police's inability to stop so more concerted steps to assure the jury that their information is not being provided to the defense the court can also take steps to prevent the the jury from learning from being exposed to people in and if if if nothing else works it may be that the not a mysterious record i mean the point is you know the judge in this case asked where does it end this is reasonable for a jury to be concerned about this stuff and it ends when the defendant has an impartial jury the constitution doesn't say you're entitled to an impartial jury or the best we can do it says you're entitled to an impartial jury and that doesn't it doesn't change depending on how heinous the crime is that's that's now under these two in this case the really the crux of this case comes down to this the district court held that no remedy hearing was necessary because the defendants had failed to meet their threshold burden right and if it doesn't apply you don't you can't prevail here right that's correct yeah the threshold burden that the judge is referring to obviously this is not an innocuous intervention if a different jerk of a defendant's mother and defense witnesses are photographing jurors who had previously complained about their concerns that's certainly not innocuous so the question boils down to was there a credible allegation of an external contact and the judge in this case found journal or force allegation credible he specifically held as a matter of fact journal before saw something that caused him to believe that he was or likely was being photographed the judge also found it credible in the series juror number four he did excused your number yes the judge also found the allegation credible enough to say that we don't have enough info to fruition we have to find out more from the jury and this court has made clear that when that's the case or hearings required it's not up to the court to do to go to send as his staff and it's a rember hearing with the defendant's participation i'm sorry what triggers it being abram or hearing it credible allegation of an external contact that is more than innocuous well i thought that the judge was taking the position he didn't know whether it was credible or not and that's why he was having this informal investigation well so i mean i take it point but if that was the case you could do this all guess i guess it all depends i mean what what do you rely on to say that this triggered rammer i rely on the fact that a judge found that juror number four saw something that made him believe there was a photograph now that the district judge frankly answered the wrong question the district judge looked at was any photo was any photography actually done here and frankly that's really not the question here i mean if and if if they if the defendant's mother had held her camera up and pretended to take a picture that would be that would be as as injurious as taking an actual picture and you're saying believe this was true and then juror number four told the other jurors that this was the case and none of those jurors was asked do you think do you believe juror number four they were asked did you see anything but the fact that they didn't see the photography happening or whatever it was that happened the fact that they didn't see it doesn't mean they didn't believe it happened we don't know if they believe it happened we don't know if if they believe it happened and and felt that they could be impartial after that all we know is that juror number four who raised the issue was excused and the judge had previously basically told the jurors look stop ask me these questions so frankly we come away from this case with no confidence at all that or any other information that's were brought to the court's attention so the court didn't really make a finding that it was credible it seems to me to your point just more the court did me inquire into partiality or address the issue of impartiality rather than saying where did the juror was credible to begin with i mean isn't that where your argument is going the problem is that those two are linked because the inquiry into partiality is triggered by the credible allegation right that the court doesn't say it was credible are you saying implicitly it did by putting in motion a staff inquiry yes that the court wouldn't done had done it if it had found it was incredible guess  co counsel christina hoffman here on behalf of the united states district judge in this case took a careful measured and proportionate approach to evaluating in responding to the jury's concerns what about the fact that smith and and small cases that were also in front of judge or the defendants did not question the jurors in those cases either and smith judge bernard did conduct individual voir dire of the jurors but yes all of them to questions defense counsel you didn't have the sequence of events like you did in this case where the jurors are concerned about information about no taking about contracts among themselves this was as counsel saying an escalating it's conduct of court and standard procedures for imperiling a jury those are putting any weight on the scale so by the time the photographic graphic allegation comes up there's no there's there's nothing on the scale all right let me let me tell you what bothers me also say that i mean this is a case where i walked in the door i just don't know the answer i mean you know i think it's really hard the what do you do in the situation we're there to record says nothing about could jurors can remain impartial the juror number four said hey guys this is serious or words to that effect they're taking pictures of us and nobody not to staff not the judge nobody in understand the court's question i would say on this record based on the way judge or dark conducted this investigation he didn't need to inquire of the jurors whether they were fair they were could be fair and impartial and here's what after the i like to begin from the moment the allegation st was reported to the court the initial allegation was reported to judgment or by me a prosecutor who heard it from a court security officer who in turn heard from a juror who heard it from another juror it was a th and report and that report was a big it was essentially that an unknown person or persons had attempted to photograph one or more jurors as they were departing the jury room and going to a public hallway during an well i think the reason judge what are decided to do it and where i was going and usually judge but our proposed sending a written communication of the court instructing them that the matter was being investigated period appellants counsel objected to that communication the move mistrial judge but are denied in this trial when he denied this trial defense counsel then requested a break so that they could look to follow up inquiry with the hope of being able to quote rectify the situation by later informing the jury that the matter had been investigated in that  photographs have been taken that is exactly what happened here judge bernard gave the opponents exactly what they requested he was going to talk how can you say no to photographs were taken when multiple people were accused of taking photographs but they only  well i think there is to be sure out of only one phone was examined but we do know from the record of the jurors responses that three other jurors jurors sixteen and eleven all reported having seen individuals  with cell phones in the hallway and none of them believed that the jurors were taking photographs all of those jurors saw the same thing as a journal before but they drew the opposite inference i thought they were as a reporter of multiple people taking pictures or appearing to be taking pictures no i think that came from juror number four and he and when his response was actually put into the record by the law clerk who took notes of the interview it simply reflected that two jurors or two spectators rather had their cellphones out with the cameras facing out ok so two people taken pictures in egypt one photo i think two people holding cell phones in a way that caused a single juror to believe mistakenly as it turned out that they may have been taking photographs  case which you were notified of them having was made in that case that the jurors were told the photograph was taken and yet this court still said they remember hearing which required so how are you going to how do you distinguish hives from your said something to the effect of the opponents were entitled to a hearing which they received on the potential prejudicial impact of the picture taking up the case but a hearing had been held before the district court finds the issue before the court before this court was indeed in small last week wouldn't have come out the way they did so you're saying that what the district court did in this case was effectively determine that there was no prejudicial effect on the jury well he he determined that there hadn't been a credible of the jurors with were he received from the court security officer corroborating the notion that spectators were taking photographs ok puts the perception of the jurors to see whether there is a problem their ability to remain impartial well and why wouldn't the judge then with the participation defended ask them why did this affected their ability to remain impartial when your honor i didn't have the duty to do that under hines i believe that reality matters and is not credible what is a basis for excusing giorno before he got in abundance of caution your honor because during a mere four may have subjectively believed that he had been photographed i think that he was doing it as a prophylactic measure i want to say that the judge didn't stop there and sit to judge canaan's point about ensuring that the jury remained fair and impartial what the judge did here following the dismissal of juror number four following his credibility finding that no actual photographing had taken place before any additional evidence was presented to the jury judge but i was notified that the marshal service and an assistant u s attorney no one baldwin in this case had investigated the matter interviewed a relevant individual examined her smartphone found no evidence of photographs and then at the request of the defendant's judge heard are informed the jury of that investigation's findings that reduced the likelihood of prejudice and judge keenan it corrected any misimpressions that jurors may have received from  it was informing them that his best the investigation could determine there was no evidence of actual tampering but in hand they made the point the judge told the jury no photograph was taken and yet they still feel they were entitled to the hear in fines or out of the affected juror reported be a legit photograph during the middle of the trial he was told essentially by the trial judge don't worry about it he was allowed to remain on the jury through the guilty verdicts and only then was a hearing held the judge and this goes to whether defense counsel participate only the judge asked questions of the effect of juror he said it didn't really affect my deliberations in this court credited or affirmed the district judges crediting of that test in the way this case is different than hines is there was no need for a similar post verdict here in because by the time the verdicts were returned judge her daughter had already dismissed the only person who claims to have seen spectators taking photographs of the procedure and i mean simply wasn't necessary ok but but you have here a situation where a threat to take a photograph could be just as invasive of juror impartiality as the actual taking of a photograph and so the court again it comes down to the perception doesn't it i mean if if the juror saw somebody it didn't matter whether photograph was actually taken or not i mean you're arguing like that closes the case but it seems to me that the further issue is where they was there and intimidation think a good place to start of responding to that question is to appoint a judge wilkinson's opinion last week and small and in that opinion he noted that we tolerate certain instances of extra due to judicial contact a innocuous that we couldn't possibly justify a presumption and what i would say to your honor is that if we're at the point where up during eight weeks into a ten week trial if a spectator encounter a juror encounters a spectator in  it's holding their cellphone out in a way that causes them to believe a photograph maybe great no no i got enough to trigger remember hearing on your own them but really you have to hear more you know we have here more and that is this  allegedly communicating to the panel guys this is serious somebody out there is taking pictures of us or words to that effect so what the judge did was he investigated he collected enough information from each and every juror about what they'd seen and heard he did it in a way you did in the way that was least likely to unsettle the jury that was the point of having the courtroom deputy clerk conduct the question she was the one who had contact with the jury every day she was the one she was the primary point of contact with after co llecting that information he made a credibility finding that this there was not credible evidence before him of an external contact that was more than once and then he provided a curative instruction defense counsel's request i think that that he in  doing being pretty that way in issuing got instruction he wisely watched the lines between looking under the hood and attempting to detect bias or partiality but not unsettling the program or hearing to court staff and then delay a decision on whether to bring the defendant into it isn't it wouldn't that be the take away the court out force the duty to inquire if the jury impartiality your honor i would submit that what happened here wasn't around here and the judge was well no but to outsource questioning the judge can outsource that well i think this would have never said that the court can alex or stay in corrie no your honor we did cite cases of pages forty four and forty five of our brief that stand for the proposition that a district judge hands a lot of tooth has discretion to fix the exact procedures of any inquiry into alleged rd party contact with a jerk and in doing that he has to balance on the one hand the need to better ascertain what happened with on the other unduly magnifying the importance of that significant event which is what we ha and judge the way judge brinn are struck out it's was your comedy it is what defense counsel asked for you look further into the matter to figure out whether photographs worked but he did it in a way that was least likely to unsettle you didn't bring them into the court room for questioning you didn't subject them to cross examination when defense counsel initially proposed to have them questioned as a group but when defense counsel said no we don't want to do that for fear something everybody said ok i'll accept your suggestion we'll have to do it individually the point here is that this was a collaborative process done with the input of defense counsel and under the circumstances here i do submit that it was a wise way of walking the balance between figuring out what happened and  well the defense for sure objected to all of this but did they make a contention to the district court if you're going to follow this procedure that we don't agree with you have to do the question no i don't believe that ever peers anywhere in the record and we object to the to this person question if very hypothetically if we were to disagree with your position i do want to come back to some of this court's cases addressing photograph the one i want to start with as a parent home which was two thousand and fourteen in that case the allegation was that during the middle of a three week trial the the jurors who said you saw the photographs being taken dismissed and so i would say i would submit that when you combine all three of those cases what happened here falls farther along the spectrum towards it the court wrote defendants requested that the court order the jerk after confirming through bear on his counsel that he had not followed the juror the court determined that it but not the parties attorneys would conduct the inquiry so the judge in that case did conduct the board which is started out by saying that the district court here took a careful and make careful measured approach and that the just and the standard number of cases talking about the latitude the district judge has in these cases the difficulty though is if you look at those cases like the the butler case that they cite on page twenty four dollars i believe their brief those are cases where this court held we are not going to micromanage the court's conduct of the war gear in those cases the court can ask the questions the government also said that the other jurors were questioned and none of them believed that anyone was taking pictures we simply don't know that none of the jurors was asked that question the jurors were asked at best did you see anyone taking pictures no one asked did you believe juror number four's report and the government argues that the jurors the jurors responses are on the record or not what's on the because you surely didn't want to examine these jurors yourself but when the judge came up and there was this long discussion about what we're going to do and reveal suggesting this did you say no it can't have you have to be doing the questioning your honor well the point is and the point is that we objected and i understand i gave you all that in my question you objected to the whole thing you don't want  done that way and the bright the point is not so much that the judge did not conduct obviously i thought it was from your argument here the point the it's all part of one package is that the board here that we asked for is for near where the judge asks the questions and we are there right i understand that and in those other cases even where the judge where the defense lawyers didn't ask questions they were the right that i thought that as you said was part and parcel of one argument and i thought also a part of that argument was that the employees were doing this and not the judge i'm not misunderstanding you that you draw significance from the fact that the judge's employees read the judge asked these questions i do you do draw significant just that particularly since it was outside the presence of the defen yes but if we posit the same questions asked by the judge outside the presence of defense attorneys when they're still be there just certainly ok thank you roger thank you  we appreciate your arguments and we will come down to ask a clerk to attorney court and then we'll come down to a group of the lawyers come down in front of the lawyers come down in front of the lawyers come down in front of the