juror misconduct and if we prevail on that claim it would have obviously invalidate all for like the juror went out of her way to make friends with the defendant's family and offer them some emotional support and reassurance  contact them despite the judge's expressed plain instruction not to them oh isn't that enough to keep and central reason why that's not enough is because the jury did not violate any such admonition we've identified in our briefing in the judge tell the jurors don't act or have any contact with any anybody uses involved in this trial party use the lawyers the witnesses know your honor what the court said but first of all there was a juror videotape where in something like that was stated to the jurors before the jury was sworn what the court told jurors again and again and again was don't have any discussions with anybody about the case about the case when juror number seven then told them it'll come out all right that be interpreted as an indication of how the case is going to come out but your honor i don't think it it supports the trial court's ruling for this reason when she was initially question when jury seven was initially questioned about her having said that about rather what her contacts were what she said she was up front with the trial court she said you may feel as an advocate she was up front but the district judge drew adverse feelings does not believe her that she was and she was hedging so i'm not sure how far you get on his but my question is if she says it'll come out all right couldn't the district judge interpret that as a comment on the case and therefore she was discussing the case as she was instructed not to do i don't think well i don't think reasonable he could interpret it that way your honor and i think certainly as well that a reasonable jury could certainly interpret it as the jury did in other words this wouldn't be a willful violation if the juror understood that to mean don't get into the merits of the case and yet the court found she was willfully intentionally violating as instructed what the court found was that she in fact did discuss the case you've got to remember that the district judge has got to decide whether he believes or doesn't believe or just taking the face of it it will come out ok it could not it would be a cool would it be clearly erroneous for the district judge to determine as a matter of fact that she was commenting upon the case i think i think for the reasons stated it would and here's one significant point that i think we should focus on when you're seven describes what she said to the others she says i tell them it's going to be all right and she says that's a real that's not a statement on the report says ok and that's his reaction to that i'm not going to dis mr sevan he goes on and to hear about other contacts and it's not it's not the substance of what she said she said and that is very obvious not only in his discussions with trouble to judge that he didn't appear to believe that her having given reassurances with it was a contact of that kind because when he heard about it initially said that doesn't bother me he didn't have the whole case for him at the time but your honor that maybe i'm just addressing your point about about what the significance of the judge apparently but we look now as to whether or not this was an abuse of discretion for the judge to dismiss and the judge made factual findings and when we're going to record  see if they're clearly erroneous that that's that is the court's task your honor and i would submit that based on you know the host of other five that finding particularly but on a host of other findings that the district court was founding his ruling that she committed and that was what she was told to do by the court the court always in his admonition to not discuss this case so therefore it was all right if you can discuss anything she wanted to time after time with the parties as long as she didn't discuss the case t understand if you're shown a videotape and you go into a courtroom and the court says you're here my admonitions any reasonable juror would understand that to supersede anything that was on a video if they don't understand why i would have thought of i've actually been in that situation when we watched the videotape in the jury assembly room that was general instructions for all of us and then the judge gave us more and i don't see why i would think that the one who perceives the other is supposed to there was the videotape in the jury assembly room and then we came into the courtroom and the judge gave us more instructions and then i got bounced but the people that got selected got more instructions and then they got more instructions at the end of the trial well there was found and said this supersedes what you got for well essentially your honor the one instruction that was given at more dear throughout trial again and again and again by the court was one that talked about contacts about the case and it was that admonition that the court relied on he wasn't he did bring out the videotape at the end and put it made a part of the record but what he but what it is his statements and his oral findings earlier on he says i can't believe that this juror violated my admonitions given over and over and over again and if you look at each and every one of those admonitions you'll see that is what what he's talking about is discussions concerning the case but i'd like to segue if i could into into the other great problem with what the trial court get is and that that is the court's failure to apply simonton i mean it's one thing for a court to to have heard allegations of misconduct and to begin to investigate them as the court in this instance did but what happened after that they hearing on misconduct commenced was that the jury the jury foreperson of course is the first one who comes in and tells the jurors about what what the concern was he says other jurors have seen jurors have been making contacts with you know other people i haven't seen him but these other jurors as we thought w bring that to your attention and my concern your by the way is that is having an open mind part of a proper part of liberations is that something that jurors have prior to have a proper and open mind because we did a much survey yesterday in the court cuts him off immediately don't get into the merits i don't want to hear about that that's not what i'm asking a couple of years later sally comes in and she says she was the one that was was apparently the one who who had the discussion with or person that led to the four persons  yesterday when deliberations commenced we did a survey and and jurors seven said she'd made up her mind and she's not going to change her mind and i just want to say and she and the defendants not guilty so she gives of the evidence shows a reasonable possibility if the jurors view of the merits applies the impetus for removal i mean the government says it's only misconduct what we have here is evidence that had gotten in front of the court that the impetus for the removal the reason the jurors came to the court and complained about juror seven was because she was a holdout they didn't like her view on the merits what did the district court say when you cited simonton to him and made this argument he said your honor i'm i'm vote not guilty there are also told other jurors i'm voting not guilty and then one of the other jurors complained to the judge she won't deliberate she just says she's voting not guilty no matter what your the jury room misconduct whether he knows her position or not well i'm not sure that son ethan actually said that but i'll concede your honor that if if the if what the court finds is that the complaint about whatever it is and simonton the complaint was this juror's incoherent we can't fall or we're trying to get a straight answer out of her and she keeps saying that you know she's sticking to her position actually didn't just didn't disclose what that position was it was fairly clear she was holding out for the defendant e lain at the at the bottom of all these complaints and as to your question just as a judge kleinfeld i think that you know i don't think simonton address is the kind of situation you're talking about i just frankly think that's why don't you address it how would it how would it come out under proper application of time with a proper application of simonton would inquire whether first of all the complaint that was made about a specific juror was  pretextual whether it shielded or was a proxy for what in fact was a a opposition to one juror's view on the merits but what let's get concrete could the judge dismissed the juror in my hypothetical because she's to lift the did a bride in exchange for a not guilty verdict even though the way that juror heard the way the judge was led to knowledge of this was by jurors complaining guilty well but it's all it's strange is misconduct for entirely independent reason there's not to be any contact with anybody outside the court about taking a bribe is jury tampering and certainly that would we would excuse the court can do is hope it's not a proxy for really for the complaint in the first place having been we don't like what her views on the merits are but you handle footnote six and signings in which seems to foreclosure argument  u just get your own case is subject to this rule we emphasize or infrequent in general questions of juror bias or competence focus on somebody then or relationship between a juror and a party there's both easily identifiable and subject to investigation and findings with i mean intrusion on the deliberative process is now we have here what we have here is an inquiry that that is quite properly begun by the judge as an as a focusing on germs conduct and there isn't any intrusion into jury deliberations but he can exclude that he he can he can focus upon the relationship between a jury and a party and simonton will not interfere he doesn't need to matters is what started the judge looking into it how it came to the judge i think it's really whether whether the misconduct is something that that would would not have been brought to the court's attention or might not have been so here you have an analogous situation where they would never and interestingly this complaint about jurors they haven't only surfaces after deliberations have begun and after the other jurors realize what her position on the merits is she's holding out for mr and it's only then even though many of these come almost all these contacts are so supposedly happened before never bucked anybody's attention nobody that the court authorized communications from jurors by way of note nobody ever brought this misconduct to the court's attention it was only when she really was absolutely couldn't function and couldn't talk and went into a catatonic state absolutely person is a little nuts goes into the jury room has all kinds of crazy conspiracy theories i'm talking about unable to function completely medically in simonton i don't remember the jury doing something outside the jury room that was bad like sure that your did in this case that's true but the jury in this case k don't worry things will be ok but it could also be she's disclosing how the jury is going or how she thinks it'll go well again your honor i can what i can say is that when the judge that jurors have been described having precisely that thing to somebody connected to the family when he was when she was interviewed and the judge said you know what and result in light of that i'm not going to miss this year so that didn't did not disturb the court he didn't take it that way what bothered him  the first time when he hears the one little thing he takes it is just the kind of gentle reassurance that people say to be nice but then when he hears more he thinks this is the real loose cannon she just can't stay away from the defendant's people again your honor it's not nobody require port's anything other than that than a statement that it's going to be all right she was perfectly upfront about that and the problem with this year was that she was something or it cites as another notes in passing that it was strange behavior it may be strange that she may be over the top in terms of this kind of unrestrained friendliness but it doesn't make her doesn't supply a proper basis for dismiss mark colors assistant united states attorney out of fresno california is one of the trial counsel on the case first of all i got to correct the record there's absolutely no evidence that this journalist seven talk to the prosecutors or anybody else she was gregarious was my first question actually areas to one side and one side only didn't talk to the prosecutors and there's she didn't talk to any of the agents in this case she didn't talk to anybody but the defendants and it's been it's family that was in that is what the record reveals in this ca so i think that needs to be cleared up right away and i think secondly this court needs to understand that the impetus for this juror the note from the four person had nothing to do with the jurors merits you have to remember this took place on the morning of the first day of the deliberations the jury had just started to deliberate and that morning that your walks into the courthouse approaches the magnetometer sees a defendant's family sitting outside the courtroom although she's walking with the rest of the jurors she makes a point to turn around go back outside the courtroom go to the thing as parents and the girl from the defendant's brother top to them and then come back in the courtroom that happened that morning and i think when the court understands that that in the judge was don't discuss the case and i read through the record it looks like to me that in fact what the judge does and counsel says there's no evidence as he sees it that number seven ever discussed the case well you know what do you how do you respond to that i think i responded that this way a trial is more than a trial is more than just the law and the facts it's the appearance of impartiality and this goes beyond the pale and i understand what you're saying is that the basis of your case is that your number seven violated the director's directions of the district judge and that's how he ruled and what counsel is saying is there's no evidence that all she was told to do was don't discuss the case that is as the defendant argues that you can discuss anything long you don't discuss the the judge did say on page one hundred four the transcripts do not talk with anyone else about the case or about anyone who has anything to do with the case and i think what it was just when was that when was that given that was at the pretrial when the jury was sworn in and before the evidence became presented in court it was in court yes you are to all the jurors ok until the trial has ended and you have been discharged by me as jurors now it's on page one ninety four the court goes on to say and this is not exactly on point with your honor question but it's all on the same lines that the attorneys may see you in the vicinity of the courthouse they won't talk to you that's not because they were unfriendly or because they are discourteous rather it is out of your respect for your independence as jurors and i think what the judge was trying not understand that every other juror understood that you cannot talk to these parties any party associated with the case addressed it rather static curiosity and if a juror had a baseball cap with a particular team emblem on and noticed that one of the defendants people had a baseball cap with the team member and that made made a point of seeking them out in the courthouse cafeteria and on the elevator someone talking about the team prospects and some game never said a word about the case no reassurances things would be ok nothing just the team that the good reason for dismissal frankly i probably have to say that isolated incident probably not describe isolated repeated repeated incidents and you know just keep seeking out the defendants people talking about the team and yes i think it would i think that would definitely be the subject of inquiry where the court will then have to do with the defendants parents when the other jurors held back she she affirmatively got on the elevator with the defense parents or just the defendant's parents and that juror alone in that elevator going up in the courthouse nobody to this day knows what was said during that conversation what we do wit t speculating on fact that this juror was so biased towards the defendant's family that it was plainly obvious that she was going to vote no matter what in favor of the defendant's family it was a spontaneous statement uttered by  it was no in no way solicited by the court you have to understand the court the district court in this kind of increase in really much in a catch twenty two because they have to kind of inquire but inquire in such a way that they don't inquire too much into the merits of the case and in this ok we can't we can't do anything i think that the court can say listen he cut off he did right by cutting off that you're saying i don't want to hear anything about that but i find it sufficient on the evidence that exists up to that point that this juror had violated the best way they could because they can only go so far that they can't go too far there's got to be some communication that's ok if you try a case in a small town the jurors and the party east's and the attorneys have other contacts like what i'm saying that one of the jurors is a checker at the grocery store tonight and one of the lawyers goes in shops there and winds up at her captor maybe she's the only checker these things happen all the time in small towns at and lawyers do it with judges too we run into lawyers that we've been friends with since before we're judges we talk all the time we just don't talk about the case so some kind of contact has to be ok think it's ok if it's inadvertent contact i mean we can't we can't help that we can't help i think was the defining all that and it american that i think it's a firm list to those that are judged goes to a bar lunch the bar has a launch it's not inadvertant to go there and it's not inadvertent that the judge comes into contact with the bar at the bar lunch at well i think that's a little bit with all due respect john i think it's a little bit different then when a jury in a juror in a trial situation going to a bar lines where you know are the lawyers who practice before you're going to be there is a little bit different thing in a trial situation where there's a juror and i agree that it is now give me the verbal formula to use to explain what the differences well the verbal formula is that the trial is a unique circumstance a trial is a search for the truth and in order to search for the truth you need impartial you need impartial participants and then partiality has to be based on not one one of the decision makers making affirmative steps to contact one member of one side or the other the fact that they may be inadvertent contacts with that decision maker is different during the trial which is a unique search for the truth that we have in our country and i ok i mean people have so many cut so much continuing personal contact and knowledge of each other outside the courtroom i agree on but i don't think you would have  i think the last point i want to say on that is that both sides in the trials and both sides are entitled to a fair trial and i think this case and this kind of by the jury in a case that undermines that your hon might have been more of a foundation but your honor we felt that if the adequate foundation was laid in the courts seem to feel it was then the his testimony w front of the judge your honor she isn't impartial she's talking to everybody she's talking to prosecutors she's talking to prosecution witnesses particularly the main investigator can't dispute a i think is i mean is she's been talking to him she talks to everybody there's no about that by by the prosecutor the prosecutors attending this he doesn't he doesn't contest next as to the statement that we don't know what was said on the elevator there's no evidence that there was anything said on the elevator but beyond what's in the in this record and as to this suppos approach to the defense family on the first day of trial i don't believe that there's anything in the record that shows that that is when that occurred so the significance of it having happened on the first day of trial is something that the court did not notice and finally on the  quickly on the instructional or your honour's i do think there is plain good faith destruction was absolutely no substitute it doesn't tell the jurors that they have that the prosecution has to disprove ignorance of the law which is a fact which is  instruction the court never proposed it or i understand that but what i'm suggesting is that under present we don't have to put your honor i would just say it's not invited error because it's not there is a strategic giving up or recognition of what the correct  on appeal object to it under birth there was a way around that the end banking suppresses no it's waived and so what do we do with that how do you how would you distinguish for us well your honors just under that it's not an invited error just because it's not there isn't a conscious recognition by the defense counsel and i'm going to have to i'd like to address that and supplemental briefing at the co you've had your chance and i understand it was not cited by the government's right thank you