well will be a reality our tentative plan is to divide the aardman i'll take thirteen minutes and mr zuckerman will take seven minutes and i'm going to try to focus on the public trial in the attack on the bribery count of conviction and mr government's contended that we have either forfeited or even waive the claim it's our position that both rule fifty one in this court's fairly recent decision in rivera addressed that issue in this case the defense counsel trial counsel asked that the brother be allowed to remain in the courtroom and perhaps at most be given all of warning outside the presence of the jury and that's all that's required under rule fifty one and rivera we think makes that fairly clear so we think that the standard of review is a nolo and with that i'll get to the merits of the correct well i was going back to what happened the beginning of the trial was that the there was a i guess a prosecutor or someone from the u s attorney's office was in the audience and apparently was making some faces towards the defendant and defense counsel anything unless the government that's correct and another source of information correct although we don't know exactly what the marshals report was we just know that there was a report that there may be a problem with this particular but we don't have any specific indication and there was no the judge made a decision to exclude the brother there was no discussion of really whether he should just be excluded just for the cooperat because that was we were the only concern was that there were these handful of witnesses who couldn't so say you if your argument is he should have been allowed back in for a closing argument couldn't other witnesses have been allowed in for closing argument and so the same witnesses that that the judge given these reports was worried that he was threatening could have been threatened during closing argument as much as they could have been threatened on the stand well you can assume was i wouldn't have wanted to attend the closing argument there's no indication that they d the judge have some obligation no to just preserve the integrity of the entire system and if we have witnesses who were serious or done testifying just threatened i mean that's not great for a criminal trials either it seems like there is an interest in preserving decorum and preserving safety in a courtroom that the idea that they should have considered a specific thing like that mission back in for a closing argument why should that be something that has to be without the defense counsel arguing it why does the judge have to go through every possible thing that hypothetically might be who is causing the problems and you know so that was an era when he considered whether he could just admonish everyone he said i've already tried that that's not working and he is like you didn't consider anything and didn't narrow it in any way well  pretty strong list of things that he was doing and he said and i admonish everybody in the courtroom that there would be no nonverbal contract to show so forth and support of any with or they would be excluded or the court would take some other action in that regard you were here i remember you sitting in the back by the door at that particular time my thinking from this court room and this floor in light of that conduct do you have anything you'd like to say in that regard he said and now he says no sir now if a defense counsel thought it was important defense counsel could have said well your honor we think that's too harsh we're certainly well the witnesses are on the stand seems the courts justified this is very serious it doesn't just stairs it's confronting these witnesses in the hallway that's not been rebutted and a trial proceeds and counsel wanted the excluded person brought back and allowed back in during the argument they could have broached it at that point and said are no witnesses on the stand and we think mr video files should be able to come back you know none of them or that they did previously say that we think you should be allowed to remain as well as they did previously but they didn't ask this particularly with closing argument was there were witnesses on the stand but this is kind of serious contact is very serious conduct and so to take the generalizations about public trial record also has the ability to control its courtroom and the people sit in the back of our court room for example and use in talk on their cell phone we believe it's the novo in and the reason why as i understand there was no follow up after the judge excluded him it's opposition that under the rivera case that the defense counsel's initial request for him to remain is all that was required to preserve to preserve the a conviction we believe that there's a case that's really very closely on point called gaskins and gaskins holds that if you give a supplemental that it's improper to give a supplemental reading about instruction after deliberations have begun in closing arguments or concluded without at least allowing for the argument so that the phantasm can address this new theory of liability a request for further argument there was not but there was an objection to the instruction and again to the defendants objected that your objections are preserved and this report specifically from the defense counsel that and so we believe that they did actions to the instruction but not necessarily the idea that you need to have another closing argument right correct its opposition that want to defend a subject and said listen we had no notice this is a whole new theory that's being articulated after arguments i think included if the government wanted that theory it would the onus is on them to say  jury sent the note but like what would you have said about eating and abetting how did they have any argument that there was anything and abetting here i haven't seen anything like that what you would have said in your closing argument if you had one that somehow would have changed i just don't see that in your papers or anywhere so i'll he looked at the prejudices whether the defense counsel closing argument was prejudice because he was not afforded at least the opportune it's a response to the theory of liability and that's what occurred here there was no opportune response about theory and that's where i think th obviously raised numerous sentencing issues but the one i would like to focus on is the five g issue because it has a rare quality of being a clear difference of opinion as to what the law requires it is a position of maximums matter sector a maximum under the government's interpretation it is completely irrelevant that the bribery count the only count in that group has a fifteen year cap it simply gets no play under the government's analysis but it is very clear under five g b one point two that the district court should have accounted for that and that the starting level or the starting sentence for that group should have been one hundred eighty months not the life sentences that the district court calculated that er affected the entire sentencing but there was the second grouping error the second grouping error is that when we do grouping we do not consider when we determine whether to how doing implement the total punishment we do not consider departures we consider the heartland that is chapter two in chapter three adjustments the district court clearly consider departures five k things that take the case out of the ordinary but that is not the process that you're supposed to use when doing group it represents you well if we start out with one hundred eighty months as the range on the bribery group then any objection to the order so therefore if we assume we're under plain error i think you have to show us that following the right order would have led to some different range and i haven't seen that in your brief or i start understand if you can even get there when you're making the determination about whether to run something concurrent or consecutive it matters where you start and under the district court's analysis it went to the end of the story and decided well here are sentences that the guidelines for calculating with departures instead of looking at how the weather is right concert concurrent or consecutive in light of the fifteen year cap for bribery this is an error that the government encouraged the government urge that the district court group the  case in this manner it wasn't i mean there's no rule that says that this is how it must be grouped but this is how they encouraged it and even if it's playing error what i'm talking about is a very clear conflict of law all right we're saying that you have to account for the the other thing is this ordering of your which way you do the departures so just on the second one the departures i don't hear yet an explanation for how doing it in the correct order would have given some different sentence i didn't see that in your brief if there there is a citation in our brief to united states versus munoz camerino which six eleven after ten twenty eight and in that case it says if the district court were to use the correct process it might arrive across was that the fifteen year cap like when you do the bribery count and you do the calculations the last point is use the fifteen year cap but that's the brinton errors yeah ok well if you're talking about for when do the departures yeah fo total punishment that is a specific i suppose we don't know since it is plainer under your honour's analysis we don't disclose didn't give us any indication how it might end either of you haven't said if they'd done it the right way this is how it would have been constrained it would have been it would've been a much lower guideline range right it would have been consider without departures and to the extent that the district court is supposed to count correctly calculate the guideline range it is assumed that the guideline related to the nonverbal communication and additionally into figuring the alternatives your honor had a question about the alternatives the admonishment was given after opening statement the judge later on the first day of trial heard a concern from from the marshals about threatening works and the court at that time decided to take no action let it proceed and wanted to hear from the government if any additional things were necessary and then later on when it became too much the government alerted the court to decide sidebar and the court at that point decided to call a given the the serious nature of the nonverbal communication the throat slashing gestures the the repeated approaching of witnesses the court took the appropriate action in removing him for the rest of the trial  believe that into consideration the seriousness and the serial nature of this that that was the appropriate action do you agree the woman is the one person makes it not a public trial and therefore could be a structural  your honor i believe in in this case the rest of the family was there at the trial though the view reales both recognize that they had strong family support throughout the whole trial and i think the supreme court that the purpose of the public trial requirement that the family be supportive or is of the pope public community understand with her why i believe that the four core values would be to ensure a fair trial for both parties to encourage witnesses was picked out for misconduct that was appropriate and any if the court had any concerns about the findings or are what the what the court didn't do or didn't consider that it should be eliminated re man for the court to consider she reversed this altogether would be an absolute when fall and that would not be appropriate and under the circumstances here how can we have limited rem the purpose if for instance this court had concerns about the findings that they they weren't adequate for this court to address or that the court had concerns on whether or not the judge considered alternative there could be a li they talked about having a limited remey and for purposes of evaluating whether or not a sixth amendment violation occurred moving on to the bribery  recommend aiding in a but betting instruction originally when the court had the jury conference or a jury instruction conference this is clearly distinguishable from gaskins first of all there was no rule thirty violation aiding and abetting instruction was not proposed by the government and then the court brought it up on its own so it's distinguishable ball on that basis this is a brand new theory is that a construct that's correct if it is we recognize that it is a new theory there was no detrimental reliance the way that what occurred in gaskins in that case there was no request to reopen as occurred in gaston's gaskins presented in jury instructions is can be a new theory if it wasn't in the original jury instructions so you answered yes the judge does question whether it was a constructive member the indictment i'm in it maybe i'm i apologize i misunderstood the the aiding and abetting to clarify is inherent in every charge as recognizing gaskins in here the supplemental instruction was a new theory but in this case there was absolutely no evidence and no argument whatsoever presented by the government related to any aiding and abetting in fact defense counsel when the objected they said this is on page seventy four of the excerpts that's that's not the case the government presented their case has been banned that each defendant individually received a bribe there's nothing in this trial that they presented that one helped the other receive a bribe there was no testimony whatsoever from anyone that one brother picked up bribes and then gave it to the other brother who did the smuggling or there was any coordination between between the two with respect to the receipt of bribes there was obvious coordination and collaboration in the alien smuggling arrangements but with respect to the receipt of bribes there was no coordination in the testimony was that the each individually picked up or was he the bride's person so this is very interesting because you're hurting your case in my mind because the way i thought we could resolve this is to say this is playing error they didn't object and they can't show that it made a difference because they don't have a theory that there was not aiding and abetting but what you're saying now is there was no waiting in the betting and if that's true then i think they have a really good claim because the jury asked this question whether the question wasn't like gaston's gaskins what was a question about indirect liability and is it enough enough that if someone just provided their their house without allowing of providing a physical space or being aware that the product is being made that was the jury questioning gaskins it was related to indirect liability the question in this case then was related to an awkward the draft instruction with the and or language in there in the jury had a question about injunctive or delighted about whether one particular person had to receive the bribe yes but it didn't have to do with with any comment on the strength is given to the jury of that time which is yes you can under aiding and abetting it does is not necessary for b to accept a crime abroad if you it is not betting while the jury was still out that the defendants had no norms that you were going to prosecute and eating in abetting and all of a sudden the jury comes back with a conviction this is shown doubt as to con honor there was absolutely no evidence whatsoever on that theory under in aiding and abetting theory the only evidence was that they each received their own bribes as principal and so did the because they thought they didn't know whether both of them received bribes and so they asked that question so maybe the your answer could have been was so obvious that they were aiding and abetting that giving the instruction didn't need for losing argument didn't need anything else but instead you're saying they got  instruction and there are they could have convicted on it without there being evidence to convict on it so how can that be something we can affirm that the only evidence and the only argument was with respect to them receiving truly there was there was no prejudice there was no evidence and there was no argument what is why judge tells a jury you can convict on anything in the betting i suppose the jury has to follow the instruction right well i think they would in the clarification was related to the and or if one has it is the other one guilty as well the jury in deliberating after a month long trial would look at all the evidence presented with to see what series anyone is liable on there were given instruction is if there's no factual basis for that instruction otherwise the jury's misled so i don't understand how you can be saying that this instruction didn't matter because there is no evidence to support it that just means there really was a problem here with the it was that it was a suppressed less instruction that didn't impact the deliberations and did not seriously impact the fairness of the trial there was no evidence of it and there was no argument of it and consequently every time you see those were in the building it sounds to me like you're confessing know and why don't you read the instruction to us that was actually given there were two parts to it correct both of which correct ok so why don't you take that instruction then try to clarify for us why you think the amended instruction was the person was and that the jury would not have a gun to aiding and abetting given the state of the record or whatever based on that the second element in this is on page seventy seven of the excerpts the defendant knowingly and intentionally aided counsel commanded interest or procured that person to commit each element of the crime of receiving bribes that is one brother aided it in a better you know the other brother with respect to the receipt of bribes there was no evidence that there was the first part of the instruction the crime of receiving bribes was committed by someone and yes that's that's correct and you're a first part of the instruction directed but it could not trying could not find them guilty is that right on aiding and abetting superfluous it's a perfectly under the state of the record in this case that there was no coordination and aiding and abetting between the two brothers with respect to the receipt  and it's a purple list in that the evidence of their personal receipt of bribes as principals under this standard bribery counts was very strong with multiple witnesses talking about them receiving bribes and additional evidence corroborating that with respect to transporting illions on duty as well as receiving bribes with respect to some of the smuggling of them to involving fidelity or reale all of the evidence related to them receiving bribes personally in directly not indirectly with respect to the  a couple of months i'll be very brief just on the bribery conviction obviously if the bribery commission goes and all the sentencing issues kind of fall away you don't need to address those because the sentencing package becomes on bungled and it would go back  issue i want to say that i think even if i know who applies we win but the defense objected to the aiding and abetting to supplemental aiding and then instruction and specifically if you are seventy seven the district court says the objections are preserved right