good morning your honour's bradley was saucy for the united states they please the court counsel your honors we believe this is a fairly simple appeal this court has held that when the district court receives credible allegations of outside influence on the jury it's an abuse of discretion and reversible error not to hold a hearing in this case the district court obviously found credible allegations of an outside influence having hearing your honor we were requested what two things at that there's a teleconference a week after the verdict at which we raised the issue of how can the defendants support their motion for a new  parties would get together jointly submit questions and then the judge would make a ruling on those questions and submit them to the c s o so when was it that you formally requested an evidentiary hearing or told the district court the district court was airing for not having a formal hearing on the record that would have been in our response to the most for a new trial now we did argue that the court could deny the most for new trial without a hearing and  you object to the procedures that were employed in a timely manner well the district court could still change them well your honor we were never given the opportunity to raise such an objection because at the time of proposal was still out there and also in our response to the most for new trial we argued that the court could not grant the motion without an evidentiary hearing you file for reconsideration at that point or tried to make and damages the court objected to the procedures employed no no your honor but the court the district court itself understood us as requesting evidence or how you might have requested it but how did the district court know that what you were doing what the district court chose to do is sort of a compromise was something that you actually believed was error and reversible error of the a decision serious error well we st raised the issue at the well the district court understood us as requesting an evidentiary hearing and and judge was in ruled in his written order i understand the government has a question and evidentiary hearing but it would be essential a pointless in this case  because in his mind the record was sufficient and a hearing would raise us all sorts of difficult issues about just like him why it wasn't pointless and say no your honor you're wrong it's not pointless we have other if you don't do it this way it's a it's a big deal to us we have it to proceed your matters to us so your accommodations don't work here your honor well your to tell him well i don't think that we had an obligation to to question or file a motion for reconsideration based on the court's order granting a new trial that the statute allows the government to appeal from the order for a new trial  loose maybe not the right word some in formality in the way that the juror had been talked to earlier and everybody agreed that the court could talk to i mean there had been some things already where the court had had some leeway and everybody is the ex parte meetings with with the district court with the george and that occurred during the liberations all parties agreed to that process and i think it's important to point out that that was in response to a jury no and it was not a jury note saying that the jury was hopelessly deadlocked it was that a note about the physical condition of juror number eleven that she could not continue and all parties consented to have have the district court meet with that  that issue of course the parties had no notice that of course security officer would speak with a juror during the deliberations and they acted and i happened why isn't that  why did you how are you prejudiced by not having an evidentiary hearing given that we know what the substance of it was in general and the substance is of course was inappropriate well two things your honor one we don't  the substance of it so you think that we just have what the c is so told the law clerks we have what the c s o told the log for in casual conversations in like six amendment terms it was not a testimonial statement he was not telling  your position it just says upon the defendant's motion the court may vacate any judgment and grid a new trial if the interest of justice so requires why why isn't that text pretty broad in giving the district court discretion i think it is your honor it's in it's broad but it's but our argument is based on this court's construction over many years of this precise scenario when there is a hand or an allegation of outside influence on the jury and that the court has said over and over again and most particularly in the sylvester case that if you that happens no matter how diligent the court's ex parte inquiry no matter how dealt diligent that is it's revers error not to hold a hearing in that situation and it's not just the a pelleas argue that oh well here there's already sufficient reliable evidence in the record so a hearing would be pointless well one we have issues a hearing based on documentary evidence as opposed to oral evidence well it's how the courts over the years and they call this case oh christ is not an expert it's not like it called in the c a so into his chambers and talk to him and then said based on that i'm going to green a new trial he publicized what it is he relied on which was documentary evidence from the law clerks that was the hearing it just wasn't an get something outside the presence of the parties but here the law clerk submitted these documents stating what happened and that was furnished to the parties similar to you falling in affidavit and copying your opponent you wouldn't consider that because the other part a saw it well but i think an examination of of the cases helps understand this issue for example in sylvester there were various reports of outside avail that of those meetings of able to the parties and at from all we can tell from the published decision they were made of built vailable in the court this court said that that still was not sufficient that no matter how diligent the court's ex parte inquiry and there you had actual the jury after this conversation and so i ceased to be that further elaboration of exactly what was said is still not going to get to the key question of what influence did this have on that  that an abuse discretion because this court's case law requires an evidence you're hearing under those circumstances that there is no case that needs to be a purpose for the evidence you're hearing and what i'm trying to suggest is going to just you judge to decide there's no purpose for an evidence you hear in this case despite good mr sylvester and whoever else is out there well and the purpose is to determine what happened and that's what this court said in the death of the forest case but what i'm trying to get to is what happened is not the key here we know basically what happened you had this conversation and basically the words that were used and what happened is what effect did that have on the juror and you're not going to find that out as an evidentiary hearing well but but that's always was a difficult situation for judgments on a mood in a bright line rule that you say is already there so we don't need to worry about creating it that they're always positive and has to be which is really the case for is not that stringent in your mi cases where you say mr abbas i'm pregnant and then he says you're fired we typically think that kind of timing is highly relevant well i think that's exactly what needs to be explored at the hearing your honor there's a lot of discussion a holdout in the sense that she was going to hang the jury because she was going to find the defendants not guilty and everything from the from the available records that we have and the only true record that we have is the court conversations with the juror during his ex parte conversations the suggestion from that i think the reasonable inference is that this was not a juror that was going to vote not guilty she was just uncomfortable sitting in judgment of these particular defendants and that's a very different issue and i think that that puts a different light on the outcome if for example which we don't know at this point if this is your thought in fact that these defendants were guilty but she just felt uncomfortable sitting in judgment of them and the things that she said the judge was in for example i'm a nice person i just can't do this she never said that the jury is deadlocked that this was not a deadlocked jury this is a mere month long trial and the jury can only deliberated a day and a half so it wasn't like that this was a jury that required an al instruction not the only reason he spoke of the georgia began with was because of her physical sort of physical illness and that is something that could and it would not be the case that's what you argue in your brief but you could have expeditiously requested well you could have tried to man damages the court if they were not going to grant you that hearing that you sought but also you could have filed for an expeditious appeal so that it wouldn't be nine months or almost a year after the fact now by the time we get around to this well and almost a year now almost a year your honor but in lighter people don't even necessarily live how do they remember i mean that's a long time to have before the hearing so how can we give you what you see you sick of hearing how can we give a hearing this long after the fact and how do you respond to our case law that says at some point too late well just as this court did in hearing where it was one year and eight months between the time and so that's or was one year and nine months into rango in one circuit case relied on by the jordans it was ten years and four months this  not even a year has passed we're at eleven months right now so we're actually less the time then in cases where this court has remained in for an evidentiary hearing hearing when in those cases there was far better evidence before the court on which to make a decision there were affidavit there were meetings with the judge with the jurors hear we don't have an affidavit we have no statement from the c e o so we have no statement from the jurors all we have is after the fact recollection of the law courts and what the c e o s of the c s o said anything i mean do motion for new trial at this stage based on the lack of competent evidence it cannot grant the motion at least without holding it at an injury hearing the government provides no cite for that proposition rather it goes on to say a district court is not required to conduct a full blown open entry hearing in every instance in which an outside influence is brought to bear upon a petted jury the government does not argue at all as it does here that in fact the court is required in every case t actually actually quite different seems to me but nonetheless seem to have these broad statements you've got to have a hearing well i think your honor that the government reads too much into where i would agree there is some loose language about holding a hearing but st of all none of those cases say that it has to be a full blown said the procedures used to investigate allegations of german conduct in the decision as to whether to hold an evidentiary hearing are matters which rests solely within the sound discretion of the district court now the government argues well that might be true when we're talking about germ misconduct in intrinsic influence but it's not true when we're talking about an extra influence but the case law that the government itself cites does not support that distinction there is a case influence case but this is tell a court said regardless of the extrinsic intrinsic classification the trial court has broad discretion and the ultimate inquiry is did the intrusion affect the deliberations and  is no decision of this court that says that there is a bright line rule in terms of you can't use reliable evidence of what somebody says because even if it is reliable it didn't comply with the rules of evidence and that really is the argument the government is making you can't determine what the c s o said based on then your contemporaneous recording of the unbiased law courts were under it duty to report accurately and there are three of them awkward revelations from actual questioning friendly questioning but nonetheless actual questioning to figure out all of what was said context for might have uncovered useful additional information what your reaction to that it might have were reviewing to know both whether or not he employed the optimal procedure i think that that would be a good argument maybe we could have learned more if we had heard directly from the c s o but i think the case law is very clear that that is not what this court does rather this court defers the broad discretion of the trial court because the trial court has a better feel for these issues and the decision as to how to proceed how to conduct the interview of the inquiry falls within the broad discretion of the talk further to the juror of is are concerned enough of concern here about possible reaction to it we need to know better what happened i mean would you accept that that the reason in this record pretty good support the is not just did not want to call this you know i think it's a bit mixed your honor this st of all one problem that we all have here is that the judge was on initially calls the parties attention to this issue  engine conference the day after the verdicts returned so we don't have a transcript of that conference a week later on march th there is a telephonic conference that there is a transcript in that conference judg and says that he had previously offered that this c s o could be made available for examination presumably meaning at a hearing of some sort and that quote not of the parties had taken him up on that offer then he asked the parties to confer to see if they can reach some agreement the government suggests what about in iraq the tories in the c s o the parties don't reach an agreement the defense says we'll set forth our position in our motions will do this more formally and in the motion the defense says we don't think that there is a need for a hearing the court can in should reverse on this record but in the alternative if the court is not  satisfied that the current record supports that result that there ought to be in evidence rehearing the government doesn't pile its own motion for an evidentiary hearing it doesn't repeat its request for iraq to tory's of the c s so it simply opposes the government's motion and i read to the court precisely the totality of what it had to say about the need for any further fact finding from the government complaint about the triple hearsay but the court specifically dealt with in an attack evidence three manner the court i don't see that the government actually said you must have an evid hearing you know at this at that stage ever it certainly regionally said something about it just in general but never said were objecting not that this evidence were not just to the hearsay of it but that the procedure itself is fundamentally flawed and can't be cured it when you're correct about that your honor they after the judge issued his decision on the defense motion the government did not ask for things one they come up in the context of a defense motion where the court felt there was no need to to hold a hearing the government seems to suggest that there should be a different standard that applies and that the government judge southwick you would ask about whether or not there's ever been if the government has ever been successful in getting a reversal of a new trial motion on that basis and i think the closest we have is united states versus williams your honor which is the case of this court that i think j e might have been alluding to where it was a defense motion the trial court did not hold a hearing and this court said even without a hearing we can determine that there was an improper outside  influence and it reversed the government then asked for reconsideration and said well don't reverse outright remanded for an evidentiary hearing we're entitled to at least an evidentiary hearing to try to disprove you know is now shifted to us but we want evidence rehearing to try to prove it and this court said no in deciding the motion bring consideration the government doesn't get a hearing now whether that's because of the passage of the time or because they're not always entitle to a hearing in the st instance i don't think the court was entirely clear but in either event it certainly undermines the government's argument here that they're always entitle to hearing because this court has under very similar standard where the record is void of any specific information regarding the occurrence and the nature of it as well as the impact on the jurors a hearing is necessary so if the court or adopt that standard as to when the government gets a hearing here they're out obviously is not a void of any specific information regarding the occurrence we have three different law clerks who have told us what th said the problem there was that we didn't even know the juror had seen a newspaper article that was the problem and here so like you say here there's not a question of whether there was a conversation the precise details of the conversations but there was a conversation there is reliable evidence that that conversation occurred the government doesn't contend otherwise in terms of the differences in the details they're not material differences and the judge  reservations about the verdict and then the c s o said was you know if she boyce's those reservations that the arctic won't be accepted and it was unclear whether he had actually said that to the juror or not it was clear that the juror had said to him my brother vacations but it was unclear whether he voiced that response or only thought that response and then told the locker judge was and was very careful not to rely on that disputed statement every time that there was a dispute as to what was said the judge was and very carefully noted in this instance there is a dispute but regardless i find that the undisputed statements are sufficient to warrant a new judged on abuse of discretion but in any event to answer the court's question i think that the passage that i just read from the th circuit case it is a pretty good standard in other words the court the proper does have broad discretion we are not going to adopt a per se rule that there has to be a hearing in every case much less dictate who has to testify at that hearing which is what the government is seeking here we are going to give the information regarding the occurrence and nature of the extra limb fluence then it would be an abuse of discretion not to hold a hearing to determine the occurrence in but that is not this case under that standard judgment was well within his discretion not to hold a hearing because there is specific information not information that necessarily is admissible in a perceiving to which the rules of evidence apply but the rules of evidence themselves say that they don't apply to miscellaneous proceedings and cite a specific example any number of criminal proceedings that are post trial proceedings such southwick that the rule that i'm that you've asked me to posit the one that i have posited is fully consistent with the rules of evidence which say that they don't apply to miscellaneous proceedings is fully consistent with rule and so i guess it is my time's running out i'd like to finish on one point and that really was yours judge cellphones about what are you hearing would accomplish the government concluded its arguments by talking about how we don't know whether the juror that was the holdout juror was going to acquit because of the fact that she didn't believe the case had been proven beyond a reasonable doubt or if she was going to acquit because of emotions half of deliberations in just thirty to forty five minutes after talking to see the so in after a juror who i think it's a fair inference was the same juror expressed that she had reservations does she come around in vote we're hearing is not going to establish that all a hearing can establish is what did the c s o say to the door and and how did the juror respond and we have the almost near contemporaneous reliable record of that and so holding to your hearing a year after the fact i don't think accomplishes anything we know what statements were made and the judge very thoughtfully analyzed them and concluded that under his very broad discretion the interests of justice warranted to do trial thank you our case says we do not understand smith to require a full blown evidence rehearing in every instance in which an outside influence is brought to bear upon a predator or are precedents allow the trial judge the flexibility within broadly defined parameters to handle such situations in the least disruptive manner possible and judgment zant determined that the least disruptive manner possible in this circumstance was to rely on these documents and have these conferences be and gave reasons for that about trial publicity about the reed trial so why isn't that entirely consistent with our opportunity to address anybody much less the relevant witnesses the court and the day the day after the verdict instructed us i mean appropriately not to talk to the c s o not to talk to the jurors but were barred from access getting that influence it is the failure to hold a hearing is reversible error that's because they're ignoring it the idea is you can't just ignore the outside influence and move on and go on your day so that's not what's happening here in fact our prior instruction is that the trial court flexible and can go by the type of case it is and what the particular circumstances are well if they had ignored it then yes that would be reversible error if the judge knew all this and pretended like he didn't then that would be if that ever came to light it would be a big deal well the case is emphasised that even w relief so that they can try to try to explore it to see if it does merit really it doesn't mean if you are ready if overcover come the threshold that you still get to try to ward off the new trial but what they do say that you can't overcome the threshold without an opportunity the process is very important here that townsell must have an opportunity to examine the relevant witnesses remember says that sylvester says that in ask exactly what happened so that was in the record of what happened between those communications and the court's tells a remanded it for an evidentiary hearing in place of the marshal shall be questioned the jurors shall be questioned and there must be the right to cross hearing you not arguing here that anybody needed to be questioned other than the see a show or that you needed a hearing to call anybody other than the c s no we think yes your honor that we can get everything that we need from the c s o which gives me back to in this particular set of facts which well i'll just leave it at that with you time up and i want to ask a question