trial judge's erroneous handling of the jury's requests to have audio and video exhibits admitted by the government replayed during their deliberations the trial judge here erred in several ways first by allowing the alternate jurors to be not only to be present in the courtroom during the replaying of these exhibits but also to sit in the jury box with the regular jurors thereby increasing the chances of being improper communication in addition he did not instruct the alternatives were the jurors to refrain from reacting to these exhibits when they were being replayed he also erred in allowing the jury to confer or discuss what portions and the audio and video exhibits themselves that they wanted to see in the open court room in the presence of the parties spectators the trial judge and the alternate this flawed procedure for handling the replaying of these exhibits expose the jury to outside influences during their deliberation and likely have a chilling effect on this or liberations the procedure violated mr rodriguez says sixth amendment right to a fair trial and impartial jury and it violated the cardinal principle that jury deliberations are to be conducted in secret well this is not structural error and we have all along no case is the main case on this point a lot of just say that under certain circumstances prejudice maybe pursued certainly it is very difficult if not impossible for a defendant ever to show that open courtroom discussion had it or an open courtroom presentation had a chilling effect on jurors a chilling effect which would necessarily involve hesitation of jurors to speak frankly and i'm not sure that that would ever be a pairing on the on the record on the transcript the government contends that these discussions among the jury did not rise to the level of deliberations however the core reporter did not transcribed exactly what was said we do know that the jury conferred or several times that the judge's request concerning the audio and video exhibits that defense counsel felt uncomfortable enough to approach the judge and indicate that he felt that this procedure was making that call him and others in the courtroom part of the jury's deliberations with respect to that particular point in the proceedings there's agreement from both sides that that is not preserved that particular that is not a preserved objection to my right about that i really agree in there he did bring it to the court's attention but not until after the conferring discussion had already taken place and there were no more of these in court conferences after he did bring it to the trial judge attention so i would agree to those circumstances it's not preserved ok so i know that you just said that in that sort of situation it may be extremely difficult if not impossible to to show prejudice so perhaps it should be presumed but but taking a look at the facts here you do have you have the district court judge  making suggestions to the jury in terms of for example i'm paraphrasing here i should send you back to decide what you want to listen to or look at but let's see if you can decide that right now what kind of an impact do you think a statement like that by the judge might have on an individual juror i mean what if i were to ask you to make an argument to make a showing of prejudice can you i think again the prejudice is mostly in the in the chilling effect of having the jurors discuss the evidence in the case in the open open courtroom and again there's also this other issue about whether the alternate swear part of that question or had reactions but i ask you this question because it's something i was thinking about what if one of the jurors listening to the judge say that was thinking actually i want to see the entire thing but we're only given a second to decide this and maybe i better not speak i've got the judge here i've got all these lawyers here is that realistic possibility of intimidation influence and then in the end chilling i think it is i think that's an excellent point i think there was a strong suggestion that by the by the trial judge that they should because the videos were quite lengthy that they should only be specifying certain portion that they wanted to see rather than seeing the whole thing so i think their concern is is a very valid one that they may have wanted to see more and felt inhibited to say that now do you have to make any showing that something like that to the extent it's a realistic concern could have affected the ultimate verdict or is the showing of prejudice short of that i'm not exactly sure what the word chilling means scott well i think if it's go also in addition to the difficulty in showing a chilling effect from the cold record i think that the difficulty for mr rodriguez is also going to be showing that that impacted later discussions in the jury room without probing the prohibition of probing into th the threshold requirement that the defendant in shadow did not meet with his that he he showed that there were actually discussions not just that the judge told the jury to concur but that these discussions actually took place in the open but we reverse simply based on the presumption of prejudice under the standard view how is that different than saying it structural lever which we were saying it was well i think  case it would really depend much more on the specific facts in here right but if we've got nothing in the specific facts that you can point to to show prejudice and we rely only on the presumption then the presumption is going to be present in every case and if the presumption alone in the absence of any actual prejudice is enough to reverse then we would who seems to me would follow reversed would be automatic in every case i don't there anything in the portion of the tape that was not shown that was too not that i'm aware of your honor but again i think we don't you know obviously we're not privy to what happened in the jury room afterwards and there may have been portions that the jury wanted to see there may have been i guess  that was at one point at another point after they went back to the jury room and then they came out again the alternatives were seated at the fence table so there was sort of two different points  initially they were interest first and then later they were seated at counsel's table while they were seated with the other jurors during was that when the jurors discussed among themselves what helps to see who would  entirely clear from the record i think but for the most part it appears that when the substantive discussions were going on that they were at counsel table but i wouldn't it  it's not clear to me that there are also some discussions when they were interspersed and certainly llano talks about the danger of influence over frank miller jurors by body language and sort of maybe nonverbal reactions of alternates and that alternates can participate by through body language  again i would highlight that no contemporary instructions were given to the alternative of the regular jurors before these procedures were employed and that's really oh a big part of the  very carefully for alternatives not to participate or in the case of montserrat for the technician who came into the jury room to replay an exhibit to train from discussion with the morning your honor so may it please the court kelli lawrence for the united states i'd like to just address a couple of factual questions that just came up at the end of counsel's argument the record shows that when the alternate were originally brought in to hear the audio recordings which were the shorter recordings they sat in the jury box in their original seats with the regular tours the record does not suggest there was any conversation by the jury or the alternate or anyone at that time the recordings were simply played without discussion and then the court talked to the jury about whether they wanted to hear the video recordings which portions they want to see when you see the record does not reflect conversations on jurors i've never seen a trial we are the  there were any conversations that could not be heard then by extension there was no participation or infringement on the jury secrecy and deliberations but i would also point out here that we're making great emphasis on apparent that occur in the transcript which indicates in two places toward the end of the procedure that the jury conferred and so we i think we need to look at the transcript as a whole if there is a point where the court reporter thought that the discussion was occurring and noted it then the a well two points in response that i first not every comma between jurors is deliberation in the first instance and so if the court reporter isn't transcribing a excuse me can you move my water bottle closer that wouldn't be deliberation and there would be no concern about that kind of comment and it's the extent that the court reporter noted that the jury conferred when the judge would when the parties the judge and the diff government and the jury were trying to identify which starting and stopping place on the video they wanted to have they conferred so again i just suggest that from a whole reading of the record there's a distinction between perhaps not us comments and whatever conversation the jury had later but turning to the presumption a lot of made quite clear similar context where an alternate the alternate swear in the jury room with the deliberating jurors that not only does the fed have to show that that was a plane error which the court said it was under the previous rule twenty four which said that the alternates had to be dismissed at the end of the jury but also that he has to show prejudice and that prejudice must be specific showing it's not simply a presumption a lot of made quite clear that there may be cases where you would presume prejudice but that was not one of them and respectfully if if the juror alternates presence in the jury room with deliberating jurors does not rise to the level presumption of prejudice then the alternates in your presence in a courtroom with others the judge the parties the defendant's around would certainly not warrant the presumption and other courts that have looked at this have really only presumed prejudice in a case where there was an actual showing that the jurors and alternate stood liberated together i have not found a case in the defendant doesn't cite one where there's a presumption applied when the record is silent as to whether the alternates actually participated in the discussion given that standard the defendant can't make a showing a plain error here there's no presumption to be applied in this record does not permit a finding that the defendant but even if they'll break even if the ultimates presence has some kind of chilling effect which the record does not show that that had any outcome on the verdict as the government noted as we noted in our brief the evidence in this case was overwhelming there were tapes to be sure of each of the three controlled by not only that we had a testimony of the cooperation witness who was present at each of those controlled by as well as several police officers who surveilled those buys and although not all of them identified the defendant one of them did and they also had corroborating evidence of the defendant's presence at his house his coming in and going out the fact that he was driving the same car for two the transactions and for the third the car was parked in front of his house they had descriptions of his clothing they had descriptions of where he was where he was going and they have the drugs that they've cooperated purchased from from the defendant are you saying that that's the showing that house he made with respect produce there's i believe a lot of made clear that not only would you have to show prejudice from the alternate presence with a deliberating jurors but there also has to be a showing that  jury room and started deliberating with the jurors the fact that the evidence was overwhelming would would overcome that sort of influence that would be a case by case basis i believe it might show that there was prejudice from the deliberation but it may not show that it affected the defendant substantial rights in the sense that there was do we have a case that says that's the standard i mean maybe we don't need one if that's what a lot of that is what a lot of says and i have not seen a case here in the prejudice means so why even so i don't have to spend any time trying to figure out what chilling means because we have to go to the the end result anyway the end result i believe is relevant to that analysis of whether it affected the defendant substantial rights i think this is a neat situation where the prejudice is more evident than it sometimes is in other plane air cases so there's a specific prejudice that the the cases discuss including  slightly different but it also involved whether it is show whether the jury's deliberations were violated there was because of whether they might have engaged in premature deliberations and this court was very careful to say we're not sure we don't have a record but the record as it is shows no evidence that the jurors did despite that judge's instruction that they could discuss significant pieces of evidence there was no evidence that they had and therefore the defendant couldn't make that specific showing there wasn't any further discussion is whether this case is different we have a judge telling the jury to confer and frankly i'm not as concerned about the alternate jurors on the facts of this case as i am about the judge prosecutor and defense counsel there it seems to me that there's perhaps even more more than subtle influence or intimidation that could take place with respect to one of more jurors and less we're going to say that the that the conferring among the jurors at that point to  e or to or to respond to the question what is it that you want to see unless unless we're going to say that's not deliberation why wouldn't just the atmosphere it's here constitute an influence on the deliberations the government's position is in fact that that wasn't deliberation the jury didn't deliberate by indicating which portions of the video it wanted to see and here we have a record that suggest how can that be true i don't understand there's no substan discussion about the video it's simply where which minute and seconds on the tape would you like to start and stop there's no discussion when the jury says we want to start here they don't say for example we want to start at the place where the defendant got into the car to buy the drugs they just say we want were i don't i don't see how that is not itself deliberations those are decisions that are typically made in the jury room but that would be it's a similar situation to where  example which are often not sent back to the jury room or drugs and so the mere asking of the question and saying we want to see this and say there were five or this baggy of of heroin reveals something of what the jury thinks is important but it doesn't reveal what they're thinking about in terms of its influence or impact on the verdict there just has to be a line where asking the question is whether this is a bold decision whether to asked to see the isn't made in the presence of judge prosecutor and defense counsel but if the jury were brought into the courtroom to look at a gun and said can you see that one too i respect listen at that wouldn't be evidence of deliberation on the part of the jury to asked to review certain pieces of evidence that were already admitted and it is very clear although even if there is some indicating about what the jury conferred with that parent article means they didn't discuss their thought processes they were looking to view the videotapes and it was confusing as to where they should start and stop and that was what the discussion was about in addition to some malfunctioning jurors or monitor equipment as it went along the way and the judge was trying to be very careful about he wanted to send them back to the jury room the jury said we want to see excerpts so he said ok let's try it so then what do we make of defense counsel expressing discomfort and then the judge saying i agree that happened toward the at the very end of this process and i would know too i think the judge in the sidebars with counsel was of starting to express in frustration with the technical difficulties with me inability to find exactly where the starting point was there was a little bit of pent up frustration with the process and then with the judge expression of discomfort immediately correct me if i'm wrong in response to defense counsel saying i feel like we're part of the liberations the judge did say that and i know that immediately following that defense counsel's and the judge said we're going to get a different system for tomorrow which is what occurred the government brought in a clean laptop but even then defense counsel said well judge maybe we should play the other videos before we break for the day and the judge said ok let's do that even if they thought there was something that was bothering  about this and they were all there to witness it so in this in some sense well there was a new direction so how there was an objection well there wasn't an objection until the very end and even at that point defense counsel said let's play the other tapes so if the defendant's counsel thought that there was something really into word happening or there had been substantive deliberation and that there was some conversation that had occurred that was improper he would have had to raise that objection there and then and and articulate it to the district court which he did not do deliberate shouldn't because they told the court where to start and stop it and respectfully though if they had given the judge a list before they came into the courtroom it's really no different than saying it out loud i would submit but even if we say that that is deliberation there still has to be a showing that it the jury felt chilled by the presence of others and that would include the judge and the court reporter who was there and the parties and also that day or that they actually those other persons actually participated in the deliberation and there's no evidence that the bait that there was any attempt to influence the jury or in any way nor that the jury felt an influence right and again i go back to the situation where if if if we would find prejudice on this record you would have to find prejudice in almost any situation where the jury is in the courtroom reviewing evidence with other persons around if there's no showing that the other person's engaged in discussions with a jury that would rise to the level of deliberation that their mere presence can just be approach and one what i'm suggesting is it is a well accepted procedure to bring a jury back into the courtroom to review and it's sometimes it can be particularly sensitive evidence in a child pornography case that they don't want to send to the jury room it might be a gun it might be drugs it might be any sort of thing that's a well accepted procedure and there are people in the courtroom when the jury hears the evidence that is not held to have a chilling effect on the jury so liberation but here as has something else you have the judge saying tell me what you want to look at and putting a time limit on the time for which the jury can make that decision i don't you have both of those things happen the record i don't have to do it in front of the judge and the prosecutor and defense counsel excerpts i would suggest there is no pause or a time limit there that cortin say you have to have it get to me right now i want you to tell me here he had previously said he would send them from the room i may not be remembering correctly or go back and  i thought the thrust of that was if you know right now let me know otherwise i'm going to send you back but i may have read too much and i think it was i would i'm going to send you back and before he did the jury seem to offer its own answer w q just a few points the government is assuming without record support that these discussions did not involve a substantive discussion of the evidence but i think as several of you pointed out it it's almost impossible to imagine a scenario where they're deciding what they want to see without having some substantive discussion about the evidence itself which i think makes this clear that it's actual deliberation again bringing the jury into the courtroom to review evidence which is a fairly common practice is substantially different from what this occurred in this would point out i haven't seen any other cases where the jury's actually conferring or deliberating in the open courtroom in the presence of all the parties and a lot of those speaks to the issue of alternate it does not speak to this issue i disagree with the government's characterization nothing evidence is overwhelming and i did in this case i did point out some parts in my grief where i disagree with defendant again particularly with respect to the first and third transactions with respect to the instructional issue i would restore my faith in that case thank you