begin with the first case which is united states v baker morning your honour's the rule in this court is that a conviction can be a pill based upon the testimony of a single accomplice alone but when that single accomplice is so inherently unbelievable that even prosecutor urges the jury not to accept her testimony unless it's confirmed by other evidence and as i hope to show during this argument is not confirmed by other evidence then i submit that bill has to bend to the of it may be that it's inherently unreliable i'll give you one example i mean in that it can be impossible i don't know that's a pretty strong word but let me give you the example i'm thinking of because i have been struggling with that question and that is kennedy testified that you're always brought the drugs to her house that's what she said that baker was wearing a g p s monitor throughout the whole time on his ankle and then march they got a g p s monitor on his phone if he always came to her house when he sold to the drugs why is there no evidence of him and her hatters why was he never tracked her house why was he never tracked to anywhere where she you know they could have conducted a drug deal now is that impossible no but it's it skirts the line i think between evidence to contradict  was precisely to check his whereabouts so if they had it it's sort of does contradict because he would have been there if she said he was there and never talking about the absence of it then the  turn right into this and what i think is the key to this case is that confirmation or not ok first centrist before i answer what there was i just want to make sure we understand what there was and there was no evidence of baker having drugs on his person in his car and i don't know why they didn't search his house there's no intercepted phone calls between baker and anyone else as a point and they never see baker with kennedy giving him the drugs and the cia who is a drug dealer with ties to the drug community he didn't give a big he said i don't know from baker selling drugs and he only mentioned candy candy and there's a lot away from a witness to the jury to evaluate credibility and that's where it's going to begin and i think that that is generally true but i think that you have circumstances where the witness problem i've been doing this a while and i don't think i've seen a case where the prosecutor tells the jury if my witness my only witness who implicates the defendant tells you that the courtroom is closed you better go check it yourself and there are two happen one on the day of the sale and one theoretical conversation in april two of those guys if you look at the government's brief then even attempt to show any confirming evidence there's no phone calls and nothing that they point to no presence at the scene nothing which leaves us now with five ok there's two more where as judge chin said surveillance shows that baker is in the mall where kennedy is conducting the transaction he drove her to the mall can he testified if we can believe her that she didn't have a car but driving someone to the scene of the crime is this court has said over and over again is not proof of participation in a conspiracy nor his pres at the scene of the crime and there's nothing to show that he agreed to supply her with drugs when he agreed to drive her to the mall which leaves us now with three transactions to the conformational corroboration relies solely on missed calls from a call log and i'll get to them in a minute because i want to get to what i think the government thinks is the smoking gun in this case in may they obtained a wiretap on kennedy's phone there are one hundred  sixteen i believe phone calls between kennedy and bacon during that time period and at least a hundred that are actually connected that don't go to voicemail from one hundred sixteen phone calls the government comes up with two where one of the kennedy and baker they're not talking in code all you have to do is compare the phone calls with the c i to the phone calls with baker to see the difference between when they're talking in code and when they're not code there there's no context to those phone calls nothing persistent precedes or follows that phone calls that show us what it is that they're really talking about  slender virtually nonexistent thread first of all we only have she starts off by say he wants to know what's up now she had five opportunities to tell the cops to tell the grand red light goes on and i think i want to make clear that the problem there is not that he didn't hold a hearing or evidence might not be admissible the problem here is he didn't allow counsel to find out whether there was something really wrong here and for i would just simply i'm sorry your honor i would disagree because i think that's the threshold for the admission of evidence under six so this is just for the inquiry what if he talked to that juror and that  inquiry could be to hold an evidentiary hearing for the purposes of vacating the verdict and there are certain things  you can find out if a juror comes to you he didn't go to the chair and says there are a lot of things going on here including premature liberations and he can't even speak and what's the harm i mean he he was willing to do it before the judge before the government just talked to the jarrett and find out what it is because maybe it was something that would really undercut the viability of what is a really weak verdict in my mind in this case so no i don't think this i a throw away argument your orders and i thank you and i preserve some time for  please the court and state the district court's judgment should be affirmed both challenges to mr baker's conviction lack merit with respect to the evidence as the government lays out in its brief  following up what my colleague was inquiring about what what do you perceive as the standard for whether an inquiry into a jury an allegation about jury misconduct should be undertak with respect to a potential source of racial animus or just generally generally well i think that it's it's true that full six of six be the no impeachment rule doesn't set forth the standard for talking to jurors but it does set forth the standard for what is the admissible to have a hearing to see if you need to seek a new trial or something similar but the case law makes very clear that the district court has the power and indeed  to oversee any post verdict interrogation of jurors and so if the district court here acted within its discretion in deciding the two issues that this jury is in its e mail wouldn't be admissible for the purpose baker wants them for and so in that case there's no reason to talk to him further so it's the threshold there is considered on a case by case basis but i guess they don't understand that reasoning what it would be the basis for inquiry would be futile say with regard to the comment i knew he was guilty from the very moment i laid eyes on him we don't know why the juror said that that's true and just to be clear it wasn't the juror who e mailed defense counsel who said that he had overheard another juror after the verdict say that before he was sworn in he believed that the defendant was guilty so what that would require would be approaching a juror who had not volunteer ed information to ask about his mental processes and what motivated his vote and those are things that are explicitly prohibited by six zero six b and the general policies that are in place to protect jurors individually and to protect the jury system more generally and there's numerous cases that talk about that the supreme court case ten or that the government cites into its brief it acknowledges that yes when you hear anything the record as to who the other juror was was it a juror who was impaneled or the juror who prospective juror if i understand the e mail correctly it was a mature who is impaneled and after the verdict came out said the first time i saw him i thought he was guilty it was the district court who inserted the idea that that was based on his appearance that's possibly what he was referring to maybe he was talking about the defendant's demeanor and maybe he was even talking about the fact that it was someone sitting in the defendant's chair in federal court but all of that happened before he was sworn in and so it was before he was instructed about keeping an open mind about the presumption of innocence and jurors are presumed to follow the instructions so even they are even if the juror accurately reported what motivating factor in his vote to convict and that's false far short of that again we don't even get to the level where this is shown to be any sort of racially driven comment at all and to meet those other standards it it certainly doesn't meet there in you letter to the to the district court you don't let the defense counsel talk to these jurors if there is to be a any post verdict examination  the hearing find out what was going on i'm not sure that the government erred in what it asked of the court the court did have discretion to hold a hearing and if the court had chosen to do that that may have been within its discretion but that doesn't mean that it was an abuse of its discretion to deny the application to interview the juror who sent the e mail to the defense here if the at the defendant and thought that he was guilty from the outset and nothing could have changed my mind that testimony then just got left on the record because it would be inadmissible under the rules of evidence yes potentially and this is what the tanner case gets to  that when you scratch the surface of any verdict it's possible that you might come up with some sort of juror misconduct that could lead to seeking a new trial but i think in tanner the there were as there was evidence presented that the jurors by af if i'm remembering correctly the jurors said we drinking that we were listening to the evidence that we now have drug runner ok and i think but but i still come back to this idea of a view to a d m and i would have said that maybe this  fits within our case not talking about with the appropriate triggers for holding a hearing in the in our language has been things like a clear substantial non speculative basis we're proceeding further is that not the case law that i should be looking at to consider whether the the district court of abused its discretion and not holding a hearing well i don't think that even the defense was arguing that they'd met that threshold at that point the defense was not saying that they had made that clear showing that was necessary to have a hearing they were just making an application to interview the jurors and essentially what the judge is saying that you can ask him questions about the two things he raised because that goes into internal germ outers so at that point juror number ten the one who sent the e mail is similarly situated to every jury our juror on the panel because the two things he has raised can't be talked about so then it's just a matter of mining for more information to see whether there's any potential misconduct that might be the basis of a new trial and that again is is one of the reasons that the no impeachment was in place is to prevent that type of undermining of a final verdict formed turning to two two things first of all the e mail may not have been explicit about what the what it was that convinced this juror that the defendant was guilty from the get go that's why an increase was needed because yes it could have been that he was sitting in the defense chair but it also could have been something that we now know is something that we can and wire into and just cutting off the inquiry before you find out that crucial piece of information is part of the wrong here the second part is there are certain things you can inquire about and premature to liberations involved something that is not the jurors thought process it's something that they've done in violation of their internet somebody burden something about his criminal history we were talking about this all the time we can't know because the judge didn't allow it in korea and we're moving to the evidentiary hearing before the inquiry and i still don't is returned it will lead to questioning over to harassment of your questioning finality of judgment as opposed to the kind of discretion that's forty two district court judges before the verdict is returned when you can examine the jurors when you can alternate jurors when the verdict is not itself at issue six weeks after the verdict that i don't think we know enough about human nature to know how well he may have been struggling with this verdict he it was but he obviously was thinking about it long enough to to send an email to defense counsel clearly troubled him using do you think that the standard to initiate an inquiry after the verdict is different different from the standard before the verdict is returned no i don't i think just initiating inquiries you have evidence of misconduct that could lead evidence that could be assembled in undercutting the verdict she should have the inquiry i think it should be the same standard it may be different circumstances may be easier logistically when the verdict the jury is in there to bring them into the judge's chambers and fire them i've certainly been involved in cases like that but i think the standard should be the same if a juror has come forward with not incredible allegations that suggests that