mistrial after it was discovered that the jurors had been distracted throughout the trial by a spectator who later had physical contact with blake or during the course of the liberations this court's concern is that improper contact may well have prevented a juror from thinking about the evidence or paying attention to the judge's instructions and when you look at the record here that's precisely what's a place  that she along with the defendant had had communication with him and had physically touched him while they were on the way to once during the course of deliberations now what's interesting is also read once the court did hold a hearing and had  bleecker explain the situation the jury explained exactly how much both he and the entire jury have been distracted by this individual throughout the entire course of the trial for  example she says she has been in the courtroom since the get go distracting us for the whole entire time putting on makeup and flipping her hair getting up moving her back moving from seat to seat going out of the courtroom the whole time we've been talking about it since day one counsel is your is your concern that the jury was distracted in such a way that they were not able to focus on the evidence of thereby not render a good verdict or if you're concerned that because they were distracted that they sort of that they imputed this to mr overholser and held it again think both your honor in terms of the discretion certainly if mr breaker is able to describe exactly what's been taking place in the courtroom with this woman throughout the course of the trial he's paying attention to this woman in the audience not paying attention to the she distracting them from listening to that to the usa or whether she's distracting from listening to you so we will not that's true that's true we don't have we haven't found that it is sort of a general this is a general distraction problem this is general distraction that that he and the jurors have been talking about and have been focusing on since the very beginning the trial of these this is what laker head had said and then he goes further and discusses once they began deliberations there was a read back that was requested in judge was presiding over the read back and  says to him since laker was the jury foreperson mr blake are you are the jury for person and he says nothing and what he says to to the courtroom hearing and he said my name and to be honest with you with her presence in the court i didn't even  at me and i noticed it and i just thought i was one of their back at her and at that point she winked at me and she and he explains that you know she was so distracting to him he wasn't even able to respond to just follow up during the course of the three back he then goes on to describe the physical contact that's the place and the physical contacts he explains that they were going out to eat lunch during the course of the liberations walking from the the springs record house over to avoid all federal building and some of the jurors had mentioned to him that this same woman was approaching and what later says was and so i just i was determined regardless of whether she was there or whether she was not that i was going to ignore her because i don't have anything to prove to that woman but it's clear that she had something to prove to me and i wasn't sure until she walked right up next to me with the defendant in her arms who looked arm in arm as she walked right up to me as i was standing there and turned and brushed me and said oh let's go somewhere else and needless to say i was a little uncomfortable with that so this juror is distracted throughout the course of the trial he's distracted during the course deliberations he expresses some level of fear that this woman now knows his name he expresses that he's uncomfortable with this this physical contact with the woman he's now identified that this woman is associated with the defendant himself and that clearly then shows he could potentially put that against this robles now there's no indication of course the government doesn't even suggest that mr overholser had played any role in this woman and causing distractions but the bottom line is it did cause distractions at least mr blake or and as a result mr blake or should have been removed from the story it raises significant questions whether or not he could be fair and when you go back and get the court conduct matter whether or not they were they indicated they could be fair impartial this court has decided you know because jurors are often reluctant to disclose whether they were influenced by an improper conduct fact we can't take that into account that they say they can still be there when this physical contact took place now most of them said they didn't see the actual contact but they did in the case that they saw the woman and the woman as we know from mr bleecker was there arm in arm with mr oberholzer so i think that it's reasonable to infer that yes the entire jury was certainly aware that there was some relationship prior to the physical contact which i gather took place fairly late in the trial after number tracking incident was there any reason to connect  records indicate that there was some connection there but there's certainly based on everything that laker said we go back to that the rammer cases from the supreme court when the supreme court actually reversed the conviction based on jury tampering one thing that the court looked at was the effect on a particular juror and in that case it was your smith where the court says quote he's so disturbed listen it's that he told the judge about government certainly this precinct did not suggest they could overcome that standard here and most of these jury tampering cases though isn't it true that the jury tampering could be traced back to the defendant here what you're telling me is there's nothing in the record whatsoever which says there's a connection between this woman whoever she is we don't even know who she is or what relationship she had there's no connection with the fan there's rutherford decision which was a case of jury tampering where the so called tampering was a group of i r s agents sitting behind the prosecutor right to a party here would look it might be just that this woman that she was on an arm and that mr blake or thought it necessary to mention that fact and in fact in the jury no jury no three which is an excerpt of record five fifteen what the jury know from mr blake who said was the defendant and h acquaintance approached me stop next to me that's nothing to me and brushed up against me outside the courthouse so mr blipper certainly connected this this woman to mr overholser and if that's the fourth with the issuance of the mandate for we sensing in light of booker and i assume that was because he had already served at that point half of his sentence and some of the court sent it back even though it was scheduled to be before america district court with the command to read it right not to reach other issues arising prior to the court never reach the other is your honor that this you work the court being a district where the district the district court on rights to educate his appearing on these trial issues and i don't believe that the courts remain as you said perhaps it was a mistake to be held against mr overholser this is his first opportunity to actually  and so i think it's fairly before the court and with that i will reserve the balance of my  case in the circuit and the circumstances the facts in this case are dramatically different from those in the rather case and the most important thing is that there was in the rather case there was actual testimony evidence presented from jurors after the fact that they had been influenced or somehow intimidated by the actions that were attributed to the parties and furthermore the government in that case the government agents furthermore the fact that there was government action involved i think caused the court to of course take a very strict view of the circumstance in that case in this  presumption prejudice simply does not apply in this case there really was no communication contact or tampering with the juror about the matter pending before the jury and in fact the the the actions of this woman in the courtroom and even the incident on the street are really very neutral in their entire just five is pointed out i believe the coming of her hair or the putting on of makeup or something standing alone does not tell us anything that she was trying to influence the jury to distract them from certain evidence or anything of that nature and even the the brush against mr blake are out on the street the the woman simply said something in the nature of oh maybe that none of them actually saw the contact a couple of jurors that they did notice that the woman that was there had approached the place where they were standing waiting to go across the street or whatever it was so in this instance the presumption of prejudice that was defined in the ram a case simply doesn't apply and the judge made a an adequate inquiry in the district court to exercised her discretion and determined that this was not an incident that required some sort of evidentiary hearing at most the the contact by this woman was non substantive ex party contact by third part the proceedings and the the jury would not even know prior to the time that they saw her on the street or one of them saw her at least with the defendant that she was associated with one party or another since the contact was not coercive and was not about a matter that was pending before the jury and since there was no threat or inducement made or offered no suggestion made as to an outcome or an issue that was before the jury no word spoken but can't simply presume prejudice which i think is what the defendant is asking us to do the defendant needs to make some prime facia showing that prejudice occurred or was likely to have occurred and the facts in this case simply don't support that was questioned by the court about whether the woman had he said the woman had nothing to do with the jury's decision in the case and when asked if he would feel negatively towards the defendant because of the contact he repl absolutely not i mean he was very affirmative and direct that this had nothing to do with the evidence or their their work in the case i will move on to another issue unless the court ha beyond a reasonable doubt by the jury and the defendant suggests that the cheek case the sound somehow i changed the standard of proof that's necessary in proving willfulness under the tax statutes that offend misinterprets cheek and the suggestion that it's created some new more stringent requirement proof is simply erroneous there is no authority for that proposition cheek in fact involve a supplemental jury instruction or more than one supplemental jury instruction given by the court to a deadlocked jury and the issue involved whether cheeks testimony that he had had a that he had a good faith belief that his wages or income  reasonable hold in of such belief which the supreme court reversed and said the standard with subjective but the supreme court never suggested that somehow the the elements needed to prove willfulness had been changed the definition of willfulness being a voluntary intentional violation of known legal duty had been around for some time before the chief case went to the supreme court  that the prosecution has to prove his knowledge of some specific statute a rule prohibiting a person from lying about his or her charitable contributions or a on a tax return or a specific statute a rule that proves prohibiting  person from lying about the business expenses slice is a bit too thin i mean carried to its illogical conclusion the argument could be there was no specific statute around or rule that said that  person that only had five thousand dollars of charitable contributions was not allowed to to claim ten thousand dollars it's really absurd the legal duty that the defendant violated was the duty not to assist in the filing and fraudulent tax returns his last clear that will from this can be proved with circumstantial evidence and here's circumstantial evidence is clear the defendant was an experienced tax return prepare for many years he signed the tax returns under penalty of perjury swearing them to be true correct and complete to the best of his knowledge the defendant made up false numbers which he used on the tax return and the defendant told the undercover agent who testified in this case not to worry about receipts if he got audited by the i r s because the defendant would come up with the necessary sees these facts clearly prove willfulness beyond reasonable doubt and viewed in a light most favorable to the government balls already been vacated so yes but to the extent that the court would be guided by the decision in deval or the cases that were recently certified to the supreme court that it would be it would be logical to wait for those so if you don't have any further questions about the the sense initially i make a comment about the fine and be done that's the last issue raised by the defendant is that the fine was it was not legal  thousand dollars of savings and by the time they got to court the fan and shut up he said no it's only thirty eight thousand dollars at this point because i can spend it that's really not a factual dispute and furthermore by the fact that the that's the spectator had no intent to influence the jury and that that somehow makes a difference and that the presumption of prejudice doesn't apply here in fact look just looking at the rutherford case which control us here and i quote from also relies on this decision this court's decision henley which stated that the presumption of prejudice applies upon a showing that the intrusion interfere with the jury's deliberations by distracting one or more of the jurors it's potential prejudice  that's all that has to be shown in order for the presumption of prejudice to apply and we believe that we have established the presumption of prejudice under the government has not what it tells us and wasn't a defendant goes in hires a jester all right who sits out there and there's all kinds of things during the trial and the judge being all like i am and not being able to see too well pays no attention to it all right mike my question is that going to be enough to say that oh well i was prejudiced even though i hired this dress to sit back there i was prejudiced and therefore i should get off free if one of them were jurors indicated to the court that they were so distracted by that just or during the course of the trial and the deliberations by even say you remember a particular case a long time ago but a person comes in he's tried with serious crime he's hires a beautiful young woman you know the whole bit she's most  please throw out judd says she hasn't done anything i could throw her out for ok we still going to reverse just a conviction in those circumstances remembering that ok now the only evidence that this person had any contact whatsoever is evidence that she was seen going to lunch with him right that's what's right and well and the concern there of course is the fact that the jurors it seemed that means that he may have associated that individual with the defendant but whether or not she was associated with the defendant or whatever the issue is whether the juror was distracted and unable to carry out his duties as concerning whether or not he had an who was this woman who was there simple as the defense counsel find out who is this woman who was there what i would submit if the defense didn't bring it up because it certainly wasn't relevan agree that this court needs to wait until will certainly guardians of all i think likely claiborne's and rita before it can address the issues and certainly in the claiborne case it's specifically addressing the issue of