now you may proceed but thank you we're here we're here again that facts of this case actually go back now more than ten years i think the first time i was here i talked about we've been going to this case for about ten years the jury ok we had a hearing and during the hearing we brought in a number of jurors there was also a person a witness that was brought in because one of the jurors  had died and he was allowed to give some testimony we brought in the private investigator who had changed the information initially and discussed the matters with the jurors and and his that in the supreme court holds in chapman versus california the supreme court holds that there is little if any difference between the statement whether there is a reasonable profit possibility that the evidence complained of might have contributed to the conviction and reasonable doubt that the error complained of did not contribute to the verdict complained that then the chapman case adopts the appropriate a harmless error beyond a reasonable doubt because as we know once you get past the initial the first part of the test there's a presumption where the burden shifts to the government and the government has to prove beyond a reasonable doubt verdict being affected but the jury being affected in any way then then then we should get a new trial and i believe that's the correct standard and i'll tell you why i think it's the correct  and in this case there's been some some statements pled in and i was there for for the trial where people said that there was only one juror came out and said that the people staring there was up to eighteen these people were these people were staring we brought in we brought it we tried a good case you know there are times when we are known as lawyers we're going to lose a case and we try a great case and we're going to lose we're going to walk away and we feel time i go to court i cause this is prompted into my mind there's so much power and there's so much importance in what we do look at this this is this is the reason i first started as a lawyer twenty five years or twenty years ago i came into first timers here and i thought well why don't we do this i now understand why we do this it's very honorable it's the i think it's the most important thing that we do so we sit jurors for the first time in their li the verdict but only the juror i think the standard is all we can look at is what's in their minds we can't ask him that question did you vote differently and i think in his ruling he asked that house i can't lose my house my family and i we have we have our whole lives are in this and i don't want to give you an affidavit i don't want to come to court of lose my house a question was natural fear i agree with you of their us but i think that if there were ten people in the room is what i think ten people are i'm staring at them there wouldn't have been a problem especially based upon the comments they made there are certain comments made that would lead you to believe they were going to work with for instance as a comment when they go into the jury into before they go into the liberations and they say are we going to be  happening is there was an on there were statements like if they can do with they did to the rutherfords and think of what they can do to us in while there while they have that they have ten people in the room and then we have one juror standing there saying that they stared at me for one whole week one week all i need is one juror in this to to at least get a new trial no for one for one week if somebody is staring at me and they have to look past me at least the press will have to look past and police are looking at me or looking at the i r s they're not listening to me they're not that it's not just the jurors being affected at the time of the verdict your contention is that we look to whether the juries the jurors are affected at any time during the trial now am i want to go back to judge was sufficiently serious that it might prejudice the jurors the steering was potentially prejudicial we therefore find the presumption of prejudice arises we venture into the question of whether the government has rebutte the presumption of prejudice by proving conduct involved first staring it's harmless beyond reasonable doubt and you raised a very good question twice now there's been a finding that the scaring satisfy the first part of the test and now we go to the second part of the test and all we have in the second part of the test is do we apply chapman or do we apply henley i am partial to handling heavily says that if any time during the case there's a possibility that there could be a possibility to prove beyond reasonable doubt that there is no risk there's no possibility that anybody's affected we have one that's for one full week that she was there that she was intimidated by this one for weeks i think these people have a right especially under the facts of the case if you take a look at the facts of the people on no money they did the right thing they have a bad break there was a dispute between the government and then they get the wrong side of the deal and then and then you don't get an acqui whether they receive the trial presided over by a fair and impartial jury the case and the veteran district court judge in this case too carefully and scrupulous followed discourse for only your opinion referring to it on several occasions as its blueprint as his blueprint in deciding how to resolve the issues in this case he concluded that while this court's very present what the government did to rebut the presumption your honor was we called the government called the eight eleven remaining living jurors to the stand and those eight yours together with the three other jurors view credibly that the conduct of the i arrest agents did not affect the outcome of the case and found the staring harmless on that basis the court also found a stary was far most beyond a reasonable doubt because there was no credible basis to infer here in the circumstances that's the jurors would have hesitated to act because of the staring and it's the facts in matters of such importance as the verdicts in the case this court affected the jurors impartiality in receiving and reaching a verdict but whether the agents could have impacted the jurors impartiality to do such things as fairly and impartially receive the  listen to the other didn't think about the evidence stick pay attention to the court's instructions and ability to deliberate in this context the district court properly determined that the defendant's new trial motion should be denied through concentrate on a particular witness at a particular point in the trial if your was intimidated during a portion of the trial that that would be enough your hon when she was asked if there was any question about possible retaliation he said we joked about being audited then and this is on the direct direct examination from the defense during the first week of time that you were intimidated distract you now i'm going to talk just to look over there well when you would think about it though we were thinking about that that we're thinking about the trial the trial i didn't i just or both i didn't i just wouldn't look over there or i would be listening to the trial these are complete just nineteen and twenty of the transcript or are so sure walker was not distracted and indeed the district court here in the case noted that and said that her possible distraction would not be a reason for granted the defendants a new trial motion so your answer was as to whether it would be enough here as it was that's not the case here but what's your answer to the question of whether if a deer is distracted your honor mere distraction at an instance in the trial could not be sufficient for the fact that her ability to pay attention to the witnesses that would not be enough a momentary distraction i would have to say no i mean let's say an hour is long discraft or a weeks long str there it may be possible your honor but certainly here certainly here where you have or you you don't even necessarily  you don't have any manner of really communication you have you have looking at we're staring at jurors and that's i think that's a very different circumstance than most of the other a momentary stare or a periodic stay or could result in new trials i mean you have you have here we have a seven inch a sixteen or seventeen day trial that lasted over the course of about four weeks there were there are so far this far there has been just a court judge just held to more than two today hearings on this matter and findings are you thinking out when you say that the trial wasn't affected in any  way if i could point to you know the district court said in this is that when after ms walker's testimony so she wants them wants to say that i'm perceiving her testimony regarding the effect of the bouyeri tracking and i started language it was two fairly and impartially receive the evidence listen to the evidence think about the evidence pay attention to the evidence and ability to deliberate at any time understanding that not from the standpoint to not affect the outcome of the case staring us harmless on that basis also staring us harmless beyond a reasonable doubt because there was no credible basis to infer here in circumstances that the jurors would have hesitated to act because of the staring its effects your jury panel of retaliation by the i r s being audited yes you testified in direct response to one of the questions that sense of intimidation did not bother you as much as time went on he would call it yes it remained with you when we knew they were there it didn't bother me as much after the first week because they knew they were going to be sitting there think that shows that there was no effect honor if we could have if i could continue with reference to testimony again during the direct examination of ms walker counsel asked during the first time first week that you were intimidated did it distract you you know i would like to go through some of the some of the other the other testimony in the case i also note that the court found that she was not distracted and that her possible distraction was not a basis to trying to ask you if caring glaring as she testified caused her to feel concerned about being audited and then she also testifies however i didn't let anything affect my vote what is the what is the correct ruling with respect to that if that were the effect that she worked she was concerned by the staring glaring made her worry about being audited but then when she got to the point and there's there's other the others other testimony here that she was not she was not seriously concerned about being rich eliot against by the i r s their concern about retaliation by the i r s adversely affect your ability to be fair and impartial intimidated but i put that aside and in the end i received all the evidence properly and i made my decision you know you keep focusing on the steering that's not which i just reinhart's asking about he's asking ok interference has occurred some time then the question is then what do we do in that instance your honor where you would have you where you would have you know ok you're not answering the question i wanted you to equate staring we have somebody coming up to her and grabbing her by the arm in the hallway you know i want you to equate those two things and then answer the question the court the court found that it might you know that that act makes an act might prejudice the jurors so that the first part of the test that you have the presumption that's right he did then the court once went to the next step is to whether the government that shouldered its very heavy burden of showing that the foremost beyond a reasonable doubt and so your your answer is i believe what you're trying to answer is that just because and a juror is affected by a tampering act at some time during the trial if it doesn't impact essential things like receiving evidence and making an ultimate decision  minutes i think it's important to note that during at the very beginning of the hearing i said i asked a number of questions or try to ask questions memory questions to see what they remember during the first part when when they were being stared out in the reason that i did that is because it's just not staring glaring it's at least in my mind ten people staring in clearing and the testimony of other people up to sixteen i count any questions that would show that these people remember what happened during their first week of trial during an important stage of trials the best part of our trial they bring their trial on in the very beginning of the case naturally we cross examine we have to two attorneys have tried a lot of cases cross examining and doing a very good job at showing that these people are paid one hundred ten thousand dollars over hand over were more than they should have paid  going through all these things what kind of tests did you do and didn't list walk to testify that she was not correct she she testified that she wasn't distracted but then we brought in an eyewitness mrs wiseman who testified that she went out to her ho you understood you understood what happens i'm afraid i'm afraid i've been here a lot of times i get afraid every time i walk from that hotel where you come up the stairs i walk down here in the in the morning to come to these things it scares me and mrs walker wasn't affected so the judge heard the testimony and obviously he thought it went to her state of mind after take her time and not at the time of the trial  person that person these people sitting over here for for a second for a minute for five minutes for a week didn't understand what was going on didn't understand that there were these lawyers that were sitting there stopping every  piece of information that was coming in and she was she was distracted just a little bit by that she she has the right to not have that distraction and  them for a week of trial and how did it affect you it was like looking in the mirror of my car and seeing a highway patrolman behind me driving behind me and i thought to myself when i'm looking in the mirror did wrong and then i thought to myself this morning