attorneys who will take that will i guess depend on the questioning but this usually doesn't work real well i hope we can do ok today but why don't you begin i acts this morning and then hand things off to mr stein's counsel to discuss entrapment and then mr rights council will finish up with his case specific issues and work to save that rebuttal time may it please the court the district court found here that in practice citizens from the dodge city fort scott and so line a jury divisions do not have an opportunity to serve on petty juries in the district of kansas and nobody disputes that finding the district court then held that it would not make any change to that practice in mr allen's case because according to the district court mr allen did not have prudential standing to bring to argue the rights under the all citizens provision of the act now the government no longer contests are standing so today's issues appear to be three timeliness whether the district court substantially failed to comply with the act in this case and what the remedy for that violation is today i'm happy to go in any order but i'll start with timeliness and till the court leaves me some other direction now the district court did not find our jury act motion untimely for two good reasons one the government never asked the district court to find it on timely despite having many opportunities to do that and two it was timely why was it timely it was timely because it was filed within seven days of the judge's january order that st made the factual finding on which the motion was based on the finding that these jury divisions do not have an opportunity and number two in that january order that's when the district court said i am not going to change that practice in this case that triggered the seven day clock mr allen filed his motion within that clock and so it was a timely motion i have a hard time seeing that decision was made hand and it was the understanding and the practice and that was concluded with the local rules and was an aberration i mean that's the book world which one could have readily gone to look at so how can it be that you have to wait for some sort of it was a determination that there would be no change to be on notice to contests no this is not a question of fidelity this is of course you know these two contests so the notice was not as definite as the court's finding later on the notice was we tend not to draw from dodge city and the the rule itself doesn't give us the notice because it doesn't explicitly say we don't draw from these divisions or trials in these locations so this case is quite different also i think the best way for me to explain the timeliness is really to contrast the situation here with the situation in when tricks and green where this court found that there were not timely motions made and one reason here is that the problem in winter x in green was up at the master jury will step one of the process so that was already done it was a completed act and it was explicitly called for under those rules so you had two things that are different here we're down here at step three it's not a done deal until the judge said it was a done deal in fact at the hearing on that summons motion the judge is still at that point undecided about what he's going to do and he says i'm getting ready to send some summonses out i'm going to start with wichita and then i will expand to dodge city depending on my ruling on the summons motion and so we have a very particular and i don't understand why you would not have been readily apparent by just looking at that language and that there was something to contest and all aspect question but then the follow up question is this where in even if they're not going to follow in every case you know what the true minute is you know what they've done as a traditional matter you would have known at least based on what took place on november th ok so i think  i might have an answer that combines the two questions and ok i'll start with does it does the rule give us notice the rule did not give us notice because it doesn't specify that these other divisions will not be called for jury trials in these locations and everybody seemed to agree on that below the district court judge the government the parties when they had the discussion at the hearing on the summons motion  everybody seem to agree that the rule doesn't specify so the rule itself doesn't give notice and as to whether there is case law i don't know that i have found a case from this court or another court where the problem being challenged is at step three as opposed to step one where step two step three is always going to come up closer to trial because that's i just don't understand how your or your you must be or you that random selection of jurors is is not permitted or is is not able to happen when you just have to  d nobody's being discriminated against and i don't i just don't i don't see your argument on that side i'm lying ok so what's happening as a matter of fact under that district court's finding is that half of the divisions in kansas don't have the opportunity to serve or to be considered for service and the reason for that will  community that's excluded because a bit of a geographic restriction because there was no court has the ok so i believe what your honor is referring to is the standards a violation of the fair cross section requirement in the act but that's not the only requirement in the act the act also requires that all citizens shall have an opportunity to be considered for service and then when we look at how the act plays out random selection rick depends on all juror divisions being included at some point having an opportunity to be summoned to trial here we don't have the kind of situation where sometimes you end up with you having union where is your permissible discrimination the district court intentionally decided we don't call we are bringing here there is no law that says to us that we are required to identify the same type of group that you have to identify to show an equal protection claim or a fair cross section clay the reason that we don't have  randomly generated result here is because we have total exclusion not under representation and i think what your honor is saying ok i know you have that but we don't care that these groups are excluded there's nothing in the law that says they have to be have to be included not right for the purpose of a fair cross section claims this isn't a fair cross section claim it's a claim that the prop practice in kansas did not comply with the jury acted as a whole which includes the fair cross section requirement but also includes the requirement that all citizens shall have an opportunity to be considered and that is the requirement of if they don't have an equal opportunity to be considered v day you have different divisions if wichita has very few trials and kansas city has a lot of trials people in the wichita area will have a much smaller which area how much crime is committed but as i understand the way the act works it uses divisions that are decided by statute the division divisions are are defined in eight places and several of those are almost never maybe never these days are having trials and all the statute requires is that for each division and that's the counties surrounding a place record is held for each division every county must be proportionally represented in the jury and so it seems to me that there might be a policy statement in the st section of their act but then when you go to the specifics of the act it tells you exactly how you're supposed to have this equal portion an equal portion that is within each division and the division is defined by statute as places where court can be held and that and those places record can be held or set forth in the act so the fact that while in new mexico for example we can have court in santa fe roswell last through says actually also silver city were i don't think we've ever had a federal trial in my lifetime and the fact that people who live in silver city or in roswell rarely get to serve on trial juries is just a matter of their not being very make trials and russell and the act recognizes that people should not travel too far to serve on a jury i said i've spoken to quite a while there but i don't see how there's a violation of the act and i really think that specifics  policy statement in the and this congress used the same strong shall there but more importantly throughout the act there are continual references back to eight hundred and sixty one there are things that the district court can do in its plan long as it's consistent with one thousand eight hundred and sixty one right so what about this problem yes of course there are going to be divisions that don't have the same likelihood of citizens having a chance to go sit on a jury trial and that is probably fine but what we have here is a district court decision to exclude jurors knowing that we at any made a finding here we have a pretty strong broad finding that these jurors do not have an opportunity and that is a district court decision and the act allows district courts to adopt the kinds of things that people can be excused for if they raise their hand on an individual request and ask for an excuse all such as that traveling hardship but here it's by court order the citizens don't have that opportunity it's not my you know their you show it's you keep saying that but i'm not sure why they don't have an opportunity large i mean to use just aren't hypothetical the juror in silver city has an opportunity it just happens that they are holding trials and voices but would not draw from that individual i mean from from from solar city if there is nothing to categorically are they from hell holding a trial in silver city and if they did it that person would have their opportunity i mean if the statue does you know i go i see except the promise of the policy statement has op operational it seems to me it is anyway but but it is cabin by the rest of the statue than the rest of the statue defines what opportunity means an opportunity means that if you're in the division where there's a surrounding a corner and there's a that be the case it's it's a substantial failure to comply with the act comes from the fact that the courts practice which is an intentional practice well meaning or not has created over decades this situation where we don't have courthouses in those divisions and so we are a full step away from the cases where there are courthouses in the division but they aren't very active and there are plenty of jury plans out there utah comes to mind i don't not sure about colorado where the plans allow for people to be pulled into other courthouses and other physicians so that they will have an opportunity to serve just like the district court did in its standing order that it adopted two years after mr allen's case and that would be entirely fine the court but we're not talking about what is the best practice  it comes from i think i'm going to start repeating myself here so i don't know either that but there's the fact there's a definite violation of the statute when the district court makes a decision to exclude divisions from an opportunity for service and that is what the record reflects happened here if i may i'd like to hand things off to mr stein's counsel to talk about entrap yes thank you defense can point to any evidence that would create a tribal issue from which a reasonable juror could arrive reasonable doubt in the light most favorable to the accused this cour i would like to draw the court's attention to the fact that the district judge actually actually used the wrong standard well in assessing whether or not to give the instruction the district court incorrectly agreed with the government that the threshold requirement for entrap t defense is quote relatively high that's not the standard the standard is not a relatively high bar actually it's the opposite it's a family needs enough evidence to create a triable issue and use of this wrong standard polo led to the wrong result the district court also got caught up in factual disputes and credited the government's version of the facts this was also an error because under this court's law although all the defendant  to show is any evidence that would create a tribal issue in the light most favorable to him since co defendants in this case and mr stein in particular can easily point to evidence of both  h in the morning mr stein calls mr day and tells mr day that that essentially that we need to act in light of the polls night clubs unity i don't see in that any inducement at all and so if you're going to give me some inducement give me some of these before that phone call because when that phone call gets made there's nobody telling him to pick up a phone call in the middle of night to do that so what do you have before then sure i think that we need to start earlier in the timeline which is when the mr de and mr stein go on this drive i call it ride along in garden city and mr gay is actually pointing i surveillance of a separate militia group for months and months before he even met mr stein and was sort of he's from garden city here and sort of the expert in that  mr day had already been sort of infiltrated in this whole community and i think it's important to note that all of the testimony that mr de presented about this right along was just that it was dave's testimony that the jury could was continually directing the co defendants to this particular target ok if i'm i'm in a plot to kill the president of the united states i deal with an informant in the informant in order to allow me to be captur says well why don't you go get em at x point i tell all the informant that's what i'm going to do that's what i want to do i want to take care of this problem well the informant is trying to control the situation so he spends sims need to somewhere where law enforcement w the extremist views but views that have never materialized into anything criminal prior to that and i think the coin that i'd like to come back to you is it doesn't we this court doesn't need to resolve the issue of final yes avery there is a lot to work with here and so i think like i said the fact that mr stein didn't know about this location before meeting mr de the fact of mr dav position the fact that nothing like this had ever materialized before even though mr stein had been exhibiting inflammatory language and sort of grandiose scheming all of this was just was rather as admitt are those are in terms of lack of insurance and you said it's the fact that he was radicalizing them over a long period of time a director you know into this location and then in terms of lack of predisposition there was you know they ha the question predisposition the fact that he decided then to alex he's the one second yes that is the turning point i have the absolute fact that nothing has happened before the what does that tell you well at that point and i will say that predisposition has davis involvement and in addition i mean we've got two conflicting testimony about the polls michael shooting which again is this really doesn't point saying this was just blowing smoke i mean everybody was really emotional about this and it just you know nobody really thought that this was going to materialize and this is just blowing smoke this was just venting and so i think they are yes there is conflicting testimony but that's the point that the testimony and evidence  viewed in the light most favorable to the co defendants in this case and i think that there is enough to have that for the just reporting have given the entrapment instruction at this point i think i need to turn things over to my or this court's job to determine what a jury may have found as to entrapment but the question is whether it should have been submitted to the jury based on the evidence in the record and we believe that it should have been and i believe co counsel has outlined the law and that quite well with that we join the important thing your honor is that in this particular case on these facts dan de the informant was not as to gavin wright attempting to infiltrate an organization or to take actions to do that as what was going on for example in the vincent case by the time particularly as to gavin reich he was already involved in this organization he was already actively involved in the design of the plot but in fact by the time he got to mr wright his job for the was no longer to try and identify criminal conduct but to actually work crute mr right into that conduct and to continue to build the plot and if you look at the evidence that was in the record your honor it's clear as to inducement mr wright just went to a meeting mr de spoke at that meeting he was already there trying to promote dan de was one of the speakers the rivers were also there and there were some of the other individuals involved day in day by his own testimony became a recruiter that's how he described himself years her persona as an f b i informant and it's also important to remember that the crime here and i think this was very well set forth by co counsel was not the crime of being charged for aiding or abetting or follow follow through it was the crime of conspiracy so the object of day and day ringback involvement was just to get somebody to agree and that is a very very low bar when we compare it to other types of crimes where we have entrapment dan de was the recruiter his job by his own testimony was to get others to agree day and date identified himself as the betting officer he then added gavin right again trying to persuade him which was the element of this crime to persuade him to join in this activity so there was evidence in the record that should have been and this is not the way the courts have generally identified this but i identify it similar to a burden shifting that once there is any evidence presented by the defendants then the burden shifts to the united states in a criminal case to prove that beyond a reasonable doubt that in this case they did not induce gavin ronnie to agree to engage in a conspiracy to use a weapon of mass destruction and it is incumbent on the court to view the evidence in the light most favorable to the defend if it seems to me that this whole the idea that the charges conspiracy doesn't necessarily work to your favor because what we've been talking about is the timeline in part between mr day's contact with mr right if the evidence were to show the mr right had already been in a conspiracy with these two defendants prior to the time that have his contact with mr de then and then it will he because the charges conspiracy the fact that he had not had individual contact with mr de when change anything  question would be did he induce the promise of the charge and the charges in to conspire to do some act using mass destruction and so i'm not sure why all i'm saying is it doesn't necessarily cut in your favor that the charge is a conspiracy because it is an agreement it is not necessarily contingent upon contact between mr de and mr right is that i don't disagree disagree with your honor that  that is that those things are true but the point i think that we are all making is that the jury should have made that determination that that burden shifting did in fact occur and then when you look at the nd piece of entrapment as to mr right there was a sizable evidence as to the fact that he was not predisposed to engage in this and and those things can't be taken in a vacuum your honor i'd like to go ahead and move on to the jane's issue i will try to be timely here is that i can reserve rebuttal time i think the most important thing is to to look at the  coconspirator exception in this case as it's grounded in the due process rights of the criminally accused in the right to confrontation and the right to a fair trial and i know that this court is well versed in the requirements of jayne's and we cited that in fact gave to the district judge the copy of the daily on district court opinion that came out right before the trial started in this case from the new mexico district case  something more than a ball proffered by the united states and it requires the united states to put on some corroborating evidence of proper statements it did not happen in this case now it would be easy and cavalier to say well so what it's a big deal because gavin wright was denied of the following due process which james was designed to confront he was denied the right to have united states identify discrete williamson statements an assertion he was denied the right to require identification in a timely manner by the united states  what those statements would be not after the beginning of trial he was the night right let me interrupt you to get reversal tell you have to point to one statement at least that was not that was improperly admitted and have you done that your honor it is a difficult thing to do in this case because of the process problem there were one thousand eight hundred pages of asserting statements that were being to give you that gives you plenty of accurate which turned out to not be true we don't know because of the volume and the process that was filed here and the denial of the court to even test the evidence what statements ultimately were not true we know in the one instance that we've identified in the in the case in the in the transcript that happened during trial but it was already after trial and at some point the denial of the process itself own transcript is funny audio recordings if you needed to do that you have plenty of time to do these things whereas the fundamental unfairness here your honor i'm going to answer that and i'm going to have to move on in order to research rebuttal time and i  those transcripts were revised and revised and edited in all the attorneys worked on them for hours and hours and hours the problem was that there were errors along the way in to the extent that we could we identified all of that but then fast forward to the chain's hearing and at that point it becomes an issue that miss ability and preliminary disability and the process was fundamentally unfair and yet we cannot ignore this because it becomes a slippery slope your honor at make it please the court baron went on behalf of the united states as your honour's no defendants were convicted of conspiring to use a weapon of mass destruction and to violate civil rights based on their plan to bomb an used primarily by muslim refugees in defendant's view the complex represented not only a growing muslim threat but everything wrong with the government's immigration and refugee policies because defendants  also fails on the merits in exchange for judicial relief without a showing of prejudice to the defendants congress squarely placed the burden on the defendants to do two things one challenging federal jury selection and the  st is to comply with section eight hundred and sixty seven's procedural requirements and the nd is to establish a substantial violation of the act and here defendants did neither st as to the procedural requirements of the defendant's move the players were merely provided for just selection from within the division but the judge decided whether or not there would be additional jurors brought in from other divisions so that was still pending and therefore the objection of that time would be premature so tell me your response to that now so i think that's an incorrect characterization of the record in terms of how this came up and how the judge was thinking about the issue so at the november th conference your honor the defendant had raised an issue about potentially prejudicial media coverage in southwest kansas and so the district court judge said at that time what we tend not to because the jury coordinator was there to discuss the timing of jury questionnaires given the need to potentially have a fairly large jury pool in this case the jury coordinator confirmed at the november th conference at that time that it was the district court's practiced poll only for our wichita hutchinson division for wichita based trials and so when the district court said well we tend not to pull that far west we can look at the local rules what's clear and then looking at the local rules is that the court was i'm talking about the delineation of that western boundary of the watch which wichita which it's in division which stops at pratt county and so the district court at that time  indication that it was taking under consideration whether to pull in the dodge city division jurors at all and that question didn't arise until the defendant's december th motion which sought to include the dodge city division the december th motion and we would argue it was still untimely at that point in time because it wasn't within seven days of the november th conference but absent that st motion what the defendants were doing was saying to the judge that they were legally required he was legally required to sweep in the dodge city division jurors into their trial and so at that point in time they should have included this all citizens claim in that st motion when he was considering whether there was any legal basis to increase the scope of the jury pool and certainly there was no basis for any nd motion once the district court had already decided that there was no reason to pull in those jurors  as a legal matter judge kelly as you recognized a fundamental purpose of the jury act is to prevent him from a civil discrimination and in the selection of federal jurors the act accomplishes that through the operative provisions which are sections eight hundred and sixty two view this claim the st policy statement talks about a right to a fair cross section and pulled from a random selection through random selection means and the the jury act itself recognize machinery through which the act is implemented and so when we talk about operative or substantive provisions we're simply saying what you're on has recognized earlier was that you have to look at the provisions of the act and determine is there something that has gone  sentences like that talks about the random selection from in order to assure a fair cross section and then the fact in policy statements when it talks about all that is than having the opportunity to be considered for service that simply implemented through the objective criteria and this is clear from the court case law from contemporaneous decisions with the passage of the jury act whether here it in or taylor or even a whit that all of these cases  recognize that what the nd policy statement is doing was making sure that jury coordinators and district court were going to treat that act as both a ceiling on the floor in terms of proper federal jur selection and so they couldn't add subjective notion of what it meant to be a competent juror on top of those provisions that congress has decided what insurer would insure or sort of  opportunity and equal opportunity for people in the same division to be selected for federal jury service and so on and if the opportunity would be to in some sense the meaning of that term would be constrained by division that there's a fair opportunity and an equal opportunity for the jurors in that division to both populate the division full of five jury we all and to be pulled from that wheel and so in the wichita hutchinson division for example the jurors are selected randomly selected from the registered voter less they're pulled into the jury will they go through the same process of qualification forms and from this court's decision and cast that you don't have to cross division lines to sweep in jurors from elsewhere in the division and elsewhere in the district and that's consistent with the th amendment right to have only a under rule eighteen to move their frail elsewhere then it may be in that circumstance that the court is holding final elsewhere and pulling from one of those outer division so to speak but once that occurs the selection within that decision is still happening pursuant to the act and under the random selection and objective criteria and so for all of those reason we don't see any violation in the act because the court precedent and the act itself sort of recognizes that there may be these geographic imbalances in test one of the challenges was that the defendants in that case said look you know jurors in the grand junction and well below divisions are effectively being excluded from jury service because the vast majority of trials are held in denver and this court said absent some sort of intentional gerrymanderin of the act and again even if that were a violation the defendants would have to show a substantial violation and there is simply no basis for the court to conclude that random selection is impeded here or that there is any effect on fair cross section which the defendants have conceded there is that and that there is anything happening but an application of objective criteria within the division that the court is actually pulling from unless there are other questions on the jury act claim a move to entrapment as to entrapment have the defendants failed to offer sufficient evidence of inducement or predisposition and therefore the district court correctly decided that they weren't entrapped as a matter of law and declined to give the instruction and there was a reason that the district court concluded that the evidence didn't at all warrant the instruction in this case and that was because defendants not day hatched this plan and never express any doubt about carrying it out it was because defendants used racial slurs spewed anti muslim brother rick and repeatedly raised killing muslims throughout the entire course of the conspiracy the defendants tried to recruit others and when the other k s i f member stepped back and sort of expressed doubt and said well this isn't what the militia is about what are you guys doing the defendant simply thought to shut them up and cut them out and move on with their plan the same way it was the defendants who debated when to strike and where to strike and how best to maim and kill innocent victims they assembled the knowledge and materials for explosives they read those materials watched the videos printed out the recipes gathered the ingredients and tools in manufactured tested the explosives they were the ones who drafted the manifesto and decided that if this attack weren't enough to get their message across that they were attacks and threw out the conspiracy as i said there was no concern about committing these crimes to the end the defendant's only concern was about not getting caught and here where the evidence simply shows that it was the defendants w hosting these meetings convening these meetings giving day instructions as to what it is they wanted what intelligence they needed and what it is that he needed to do for them that there was simply no basis on the largely undisputed record that there was no reason to give the instruction that all your honor the defense in their briefing and the reply briefs in particular talk about sort of credibility issues to resolve but really there was no conflicting evidence here at all the day and days of testimony was consistent with the recordings it was consistent with the testimony  balanced and it was consistent with the testimony of little harrisson it was consistent with the testimony of all of the items that were seized from defendants holmes and from g n g and so the defend arguments without and of any evidence and sufficient foundation in the record to support those arguments simply isn't enough to get the instruction here mr right in his argument identify a few different things recordings it's clear at this is the same meeting where the defendants were seeking to recruit the spooners dan de is the person in that recording who says to china spooner look if you're really nervous about this and don't want to be involved in that you can step away other people have stepped away and you can do so too so the fact that at that meeting dan de is the only person and telling people to step away and the defendants are moving ahead with that really shows that there's no basis on which to conclude or no evidence from which the jury could find a genuine triable issue that the ending is the person here seeking to recruit the defendant d in the same way for that july th meeting dan de had not been in contact independently with mr right at all it's unclear how mr wright shows up at the meeting whether curtis allen or after stein had invited him to that meeting but it's clear that at the end of the meeting mr right is the individual who offered up his business is a private place for the defendants to meet because defendants starring the defendant allan were both concerns that they wouldn't be able to hatch this plan in public and they needed a secret location in which to forward with our plans there it's this a meeting where defense at right also offers to help dan de in terms of gathering information from garden city because he knows garden city having grown up there and said that he could easily get landlord addresses in garden city if that's what the defendants wanted and so the notion that you know dan de is the one who's inducing defendants to commit this crime and and sort of moving forward with plans is completely belied by the record and the reason that the district court declined to give the instruction in this case if there are no other questions on entrapment unless the conspiracy this thing here and this is the question then i raised posed earlier if you know in this situation and the evidence were to show that that there had been communication prior to the interaction between mr wright and in van de at that meeting there had been communication between the two defendants i mean the two other defendants it would give rise to the notion that they themselves had formed a conspiracy would how would that cut in terms of the notion of there having to be individual contact between the government informant and each individual i mean you know the notion of the government created this and how does that interact with the notion of a conspiracy were could be that there was already existing green that's correct your honor so i think that what that it does involve many of the other chaos her dining curtis out and was talking about using high explosives against muslims and garden city or liberal kansas and van de isn't there for that conversation and notably dan de also is the person with probably the least  knowledge of explosives throughout the whole conspiracy so this isn't an instance like where the f b i has an undercover who is in contact with the defendants and they seek to sort of have in particular were taking all of the steps to independently create explosives were and were getting closer and closer with both the ingredients that they were collecting the materials that they were using in the time that they were spending u what i mean we're dealing with two elements decent and predisposition the predisposition and correct me if i'm wrong this predisposition is determined by whether you had the predisposition prior to concept of law enforcement  meeting he's there during the entire time that there's a conversation between brody benson shelby louis and patrick star and he passes out it's taken away by ambulance shelby lewis leaves at approximately the same time properly admitted coconspirator statements all you know budgets are point it to the extent that the essence of the argument is one of process at the end of the day aren't they required to show some prejudice as a result of the process and doesn't that go to the point that that there has to be at least one statement that they can point to that should have been a minute that was the form of this defect that allegedly foundational determinations is because at the core ends up in a place where having not had a james proceeding the court can provisionally admit certain statements and then that evidence doesn't later connect up and the testimony which was the independent evidence that the district court had to live on and making its determinations at the james hearing harris that also testified about her observations and interactions with the defendants and law enforcement had testified about the various evidence that they had seized and so at the time that you dan de on took the stand and the government you know sought to move to admit the actual recordings there understand you correctly is your understanding of the case law is that ordinarily when one is talking about defective process it's an explanation for the it mission of in improper admission of evidence yes your honor me who was responding and but all of you three decided of take a quick shot i would like to make two points one test is different from this case in test there was a single well that all three divisions contributed to the fact that some people were effectively excluded had to do with the fact that they would frequently seek hardship excuse alls and were granted those so they were excluded by citizen choice so that is really well understood if you read footnote four in test along with the background point number two please read the government's response to our jury act motion carefully they did not argue a time bar they argued that it was an improper motion for rehearing and now i will yield to the other counsel they would like a quick rebuttal time