good morning thank you mike stengel of the memphis tennessee bar and it's my privilege to be here on behalf of calhoun rate this morning there are a couple of reasons two reasons to vacate the think this court should review the issue did novo the united states has suggested that it's subject to abuse of discretion review but this court in united states versus gibbs has said that the abuse of discretion review applies only when the requirements of rule twenty four have been met and in this case that this court has also said that the denial of the right to exercise pere challenges is a structural a we're not subject to harmless error review that was in united states versus mcfadden here the district court did not comply with the minimal requirements of rule twenty bid the impaired think negative impact was only on mr reed the defendant it was not a party neutral impact there was no negative impact on the government when mr reed objected at the erroneous encouragement of the government the district court refused to check the record and so what happened was being told and is why there was beginning that he would be given ten peremptory challenges the rules were changed in the middle of his never denied further challenge though there was no point in which the judge said you've used them up you can't challenge so and so is that correct that is absolutely correct i'm just gonna say i'm having trouble seeing how there's even even assumed prejudice is just categorically no prejudices and there i would i would disagree for what what conceivable prejudice was there so that he would destroys the appearance that mr reed is going to be given a fair trial run by an impartial judge according to the rule that's the identical twelve people are going to be deciding this case if this error had not been made is that correct not necessarily why not because knowing that there were still potential jurors out in the back of the corpora who had not yet been call when missed the only decision that we can assume and it has to be an assumption the government still had several challenges left when the last round of peremptory occur and as the supreme court said in addressing  challenges this was a situation where this was a situation where mr reid had no choice when that peremptorily was taken from him not pay her choice he had a hard choice  in the same variation the same question of the rule twenty four says nothing about the consequences of being denied one right it says nothing about you know the judge miscounts just deciding about that but that's perenna same page there so then why i saw him on the same page that that means criminal fifty two takes over so harmless there so we're honest there is such a thing as harmless there right there there is such a thing as harmless or twenty four is silent about this then we go to the general harmless error all right i disagree because of this court's statement in united states versus mcfadden where it said that it is virtually impossible that a bad thing he's it is a batson can't say it is and frankly all of the cases cited i don't i'm struggling i'm struggling with why it's relevant to bring up constitutional cases when we're talking about a war the twenty four by itself is it's a rule based the numbers pulled out of thin air and the states have different numbers the number ten is not a kind of number right that's that's correct so i just understand why this isn't a rule based problem and  i'm really struggling why the constitution or constitutional case and are into it the rule doesn't tell you what happens if you miss cow everyone agrees it's not a constitutional requirement that they should or will fifty two this court maybe may well choose to apply a harmless error of i think it's inappropriate based upon the case law which discusses how peremptory challenge cases are addressed i will add that this is sort of a purple striped zebra case in that it's sort of hard to fathom until you read the record that one of boils down to it people that because it's so difficult to assume whether or not there was there was an impact that in discussing peremptory challenges albeit in the constitutional context in batson the this court has said that because you don't even talk about case how is it harmful just sort of group now that they they were done in a group and once there was a full panel who was qualified for cause then a round of peremptory spot both parties were submitted and there were no back strikes so the the seats there were filled at that point were permanently failed and so there were a couple of round and i believe it was on the third round where they were down to the final final strikes for the day because at the end of the at the end at the beginning of the third round what was the situation how many people were permanently on the jury and how many people were still subject to her i don't understand medicine for how the system worked my recollection is not necessarily accurate i believe that there were ten people seated at that time i did not try the case it was a two seats left there were two seats left to see either one or two of those one it seems like there can't possibly be any harm because well  at that point if you're saying he wants to save it he's he's conserving these because the person that is replaced for the one that he rejects might also be objectionable and then that person that he objects to well i'd be replaced by someone else and in order to you know the bird in the hand is worth two in the bush kind of idea he might have not objected to somebody that he might otherwise have objected to the idea that to some extent i think that it's absolutely critical that mr reid was erroneous lead down to just want that and that the government had several  mean there's so there are you trying to figure this out because all i want to know i think like driving just the practicalities of this so your theories you know you're playing a card game you've got a trump card in the question is when to play the trump card and if you wait too long the trump card potentially is not useful are you making the point that he there you can you say they were some let's say ten permanently seated at that point he couldn't go back and strike one of those ten no know whoever the so is at the end of you know everyone's just about done with that twelve there you happen to have one current theory left in my not right that you can strike any of the twelve at that point no not in trial the way that the judge did it once somebody had not been struck by either party they were on the jury so with this being the trump card in a card game problem you're not sure you know if you have  understanding i know why you're resisting me it it it's also key i push it to help iran and it's also key that the government had five left so the only decision that we can be certain that mr reid was making at this time mistakingly being told he only had one left was dead whoever was there and whether it was a one or two that he had the opportunity to strike was less objectionable to him then whoever was in back that would replace if the government used one of the five that it had left though and that's used it what would happen they still had five right that's correct and they could have used the five anyway they want to they could have resumes the five on that last one or two that that was being replaced that the government also could not use the five on the the ten that had already been if you had too many to use both of those they still were ahead five that kind of that's absolutely correct so where's the left you were disadvantaged if you think you only have one when you really have to because you're more conservative about challenging somebody in the face of whoever else and you don't know who's next in line is that the idea absolute it's like a draw from the deck you have at the five or six to one with the problem of the prior counties on making because the government on the get sick so they were so round so the reason why there's a five is exactly two rounds but ok we're getting up to the point we're talking about where the alleged prejudice occurs you're relying on the five point where the government is fired because it only used one up to that right that's correct i don't stand back can exaggerate the programming that's part of the card game i mean if you go you watch the government you're nervous about the government having a time at the end that has nothing to do with this one versus two problem we shouldn't be spending eight in these first two rounds if you think that's strategically important i don't i don't understand that there's a point to making they have i because the only used one they were careful about how to use these trump cards i understand that but being denied being reduced to ten her being reduced from ten did not not only changed the ratio but what it did was it meant that when you're down to picking those last two he only has improperly one left and he doesn't control how many the government wants to think the upshot of just your highness question is that if he had to he would still have to today because he was satisfied at the end he despite this anxiety about what the governor was going to do with this five is in this case it seems to me instead of having one left you would have had to that's what that's how it played out i don't think that we know that without speculating because unlike the supreme court case that the government grew out upon there was no question at the end by the judge about whether either party had any objection to the jury it was coming from god it's sort of keep asking the questions and we're going longer but i'm trying to figure this out i'm actually thinking the theory you're sense how is this to make sense of your argument and i know we're keeping you over but if it's interesting let's say you only have one spot left instead of two and you think you only have one objection one challenge left and you get somebody who you kind of uncomfortable with but it's probably better it's probably good it's better than somebody that you really object so knowing that you have yet another one for the possibility of someone you really object to you let that person come on and then that person is on but it's not somebody that you would have objected to if you had record of this i mean saying you know in charge of the next person comes on is x i'm prejudiced because of i mean we're the closest were we get any facts there is in anything in the record is when the how acquit between him and the judge occurs where and i don't remember which one started it but mr reid essentially says i've now used a and the judge says no you've used nine and there's a discussion about whether the record should be checked because it had been very recent at that point to the prior round and  was chief judge mccall at the time said there's no need to check the record i remember you have written seven and you've used to at orally at the bench and he was encouraged by the prosecutor not miss ireland who was but her co counsel said judge your memory is correct i've been taking notes that's the closest there is to anything in the record when mr reed  stand you know you can debate that i suppose but i mean how do we graft some kind of prejudiced on what could maybe be might with nothing it seems to me to go well over the ditch certain his distinguished the constitutional cases i think that it's important that the rule was simply violated and it was to the detriment of the defendant thank you thank you ireland for the united states western district of tennessee i'd like to address the argument regarding jury selection briefly and then move on to calculation of the criminal history if i may i was lead coun at trial mr reed was pro se a mistake was made in the way the parameterise were counted it's not a constitutional problem that's the reason that we have the four cause challenges that's to ensure an unbiased jury the rules  these are criminal procedure rule that is an additional almost like a prophylactic to make sure that if there is a mistake under the cause challenge system that it can be accommodated and a jury can still be seated that isn't biased for or against either party so it really should be a harmless error analysis it is not of constitutional dimension and while you can take things out of context in some cases or dicta in some evidence is prejudicial in one way or another i think anything can be considered potentially harmful the situation when this occurred was at the end of a day of jury selection which had been approaching six hours in court at that point it was near the end of the day the panel had almost been exhausted and there would need to be called additional jurors for the following day to see alternate i mean that's that's the degree to which this had been dealt with in a very painstaking meticulous manner in fact if you'll notice on the record for you to think about for your posing counsel to think about yes i mean i think the way this works is it harmful in the sense of strategy i mean the way you explain to one third of these permanent seating seedings of certain jurors you know when you want to you want to hold on to corrupt is for later rounds i actually think there is a theory of harm in terms of the strategy of using peremptory use and the key point is when the idea of wanting to hold some of the end but i guess what i think this boils down to is a situation where because we can't actually figure out these different jurors what they do we don't know about the jury deliberate deliberations but in a miscounting sense where you're left with at least one left it's always prejudicial or it's never prejudicial it's one of those two because i can i can see the harmfulness point but i think that the harmfulness theory would apply in every single case so every time there's a miscounting doesn't matter whether you're left with  undermines your strategy and so it always has harm which starts to make it look like a structural constitution there which is why that would be tricky for the defendant but i don't know just logically it seems to me it's either one of the other respectfully i understand what you're saying but when you've still got a peremptory left to give use and you've run out of jurors to strike and you've got a panel that has passed constitutional muster and you still had options that you chose not to use i don't see that that d logically have played it differently now maybe that's not const maybe that's not what the rule was intended to protect i guess you could argue that it's kind of hard to argue that you definitely would have played at the same way given the way that you all describe the structure acknowledge that but again that's an interim review that's that's yes i acknowledge there could have been a strategy difference yes to say that this is the same jury that you would have had if there had been no error is not one hundred percent necessarily the case because of the strategy had been different than conceivably might have selected differently and had a different jury because you knew what you were doing when you made that last choice this last person that was only somewhat acceptable to you might not have been the person who got on the jury true it might have been somebody less acceptable in the end but but he didn't get the choice that the rule gave not the constitution but the choice that the rule gave him well i guess the question i ask is why doesn't the rule if it's going to be of if if if it has underlying policies why doesn't the rule have to be complied with i think the answer is in the transcript if you'll look at the transcript of jury selection prior to this situation reed actually used a peremptory challenge on someone who had childcare issues but was otherwise a qualified juror and the court was not going to release and mr reed said i'll let him go i'll use one of my challenges it was done with the other posters to show that he wasn't really using strategy is yes your honor yes absolutely let me ask you was it as i understand the judge was after you pass for causing your preemptory he considered that particular jury gets part of the panel it was it was going to decide the case yes and so i heard your colleague say ten were seated and he still had one pre correct i don't know the numbers off the top of my head without referring back to notes that i don't know if that were true and that's what i thought i heard him say then the eleventh comes on and the defender could have used his kind of from a game theory perspective we don't know whether he would have wanted to strike one of those very all along with the keep one of the end he really had to so he didn't follow that strive didn't need to follow that strategy however  maybe but if he's not arguing is unhappy with the first time i'm not arguing that he's unhappy with the first exactly it was very clear from the start there would be no back strikes you mean your challenges for cause you would then make your peremptory challenges and anyone who passed through that round was on the jury period end of discussion your dark strikes are going to be due to printers were then to be used on the new panelists who are filling in for those who had been so struck with brad do you acknowledge there's a type of strategic disadvantage that might have led to a different twelve i thought you acknowledge that i do i acknowledge that if strategy was being used in that way that that might have altered a strategy but i think it's a very speculative accurate to say he got the same jurors he would have got he necessarily would have got the same twelve jurors he would have gotten if he'd known that he had two left instead of one that's correct johnny's at least playing the game at the last one i think it's different but i'm thinking from what judge said in th about the first with respect to the very last one only it's possible it could have been somebody else if he had known he had to it's possible but there but it is getting a bit far afield into pasar field it's kind of it's kind of it's it's something maybe not very weighty so then the question is what do you do with that when the rule says you get x i don't know what you do i think ultimately it's a harmless error question and again the things that might be speculated upon are not what's what's before you today we have what we have but what if you have a good analogy our whole point is there is some harm so to come back and say it's a homicide question the whole debate for the last two minutes is showing you there are ways in which there was some harm it might be not huge but the work harm is not inaccurate so what do you do with that i mean for you to come back and say harmlessness that i don't know that's  conclusion after we all agree there is a theory of harm i would again refer you to the record and the discussions that took place prior to this situation in which mr reid was using his or her m juries because he wanted to be nice to someone and let them out because they had child care issues that's not evidence of a strategy that's evidence of someone operating procedure who doesn't respectfully know what he's doing because he's not an attorney no i'm not asking you to but i'm saying that it doesn't indicate that he was doing jury selection with an eye toward strategizing i'm still lost with the strategery i mean he doesn't know what he's going to pick up a few uses preemptory could be somebody terrible for her or no different the one you got so what's the strategy well the strategy under the analogy that judge that is using with the card playing deciding apparently that he would want to have two left so he always had a choice as to whether or not to use and had that cushion essentially the strategy being i'm going to reserve a cushion and when you're down to one you don't have that option i but he doesn't use it that indicates to me i don't see this credit that's the government's position your honor if there are no further questions on this matter may i address the criminal history score during the first sentencing hearing on february twenty eighth two thousand and thirteen the exhibits that were submitted to the court included a document that answers the question of custody the fifteen year lookback period includes the date december thirteenth one thousand nine hundred six that is within fifteen years of the date cited in the indictment at that time mr reed was in custody and it can be noted by one of the documents that was submitted as an exhibit at that hearing that document reads that by the allowance of good time disciplinary credits the above named mr reid is now eligible for terminations on one of his sentences that sentence being a two year to four year sentence for possession of a controlled substance he was to continue to serve on a two year to five year sentence for larceny in a building and for a one year and six month to seven year and six month sentence for escape from prison so on that december day mr reed was in custody he was serving two sentences that were separated by an intervening arrest and the escape sentence which was to run consecutive was to begin at the expiration of the sentence that terminated on that day so it is clear that the criminal history points as assessed are accurately assessed mr reed was in custody within that time period that's clearly demonstrated by the document that was submitted as an exhibit at that hearing and it identifies the sentences two that were b two of them which were being served concurrently and one which was to begin at the expiration of one of those sentences as being in place at that time so we would argue that the criminal history scores accurately calculated and that the courts calculation should be should stand i realize that's kind of a confusing issue but finally briefly addressing the forum fo the matter in many cases for a for b issues can get very confusing in this particular case the government believes to very clear situation the reason the evidence was admitted the evidence that mr reid had had sexual intercourse with a four of a thirteen year old victim prior to the day that he took her to mississippi to again have sex with her is because it was part of the government's burden to prove his intent intent is something that can be known only by outward actions because it's within the mind of the defendant it was one of the things we needed to prove the evidence that was admitted had occurred near in time involving the same victim and it was admitted for a proper purpose as the court noted and so having no additional questions we ask that the court affirm the verdict and the sentence as handed down thank you thank you  that jurors zero eleven and twelve were considered at the same time this was not done in suresh in one through twelve with respect to counsel's argument about strategy in a discussion about child care i think that the government to speculating with respect to mr reed's check strategy he may well have used a peremptory on somebody with child care issues because he wanted jurors who didn't have other pressing matters on their mind and would pay attention of so there may well have been strategy there with respect to your question judge so you might have just been a nice guy he may have been a world with respect to whether there is always or never prejudice i would suggest that the answer should be that there is always prejudice in this  where that's what it becomes because that's that's exactly what that is well i realize that it is not constitutional however  know i'm not saying that i'm saying doesn't that seem odd that a problem a violation of the rules gets treated for harmlessness purposes like the constitutional structure structurally or that's what's odd to me we know it's not constitutional so that's what makes it slightly odd and then it makes it really odd to call it a structural play here in the sense of it always requires new trial things pretty amazing i agree with that analysis the reason that i think that it there is always prejudice is because this is a situation where congress mandated this rule and it is an objective simply no discretion here it should be ten this was the court's fault encouraged by the government and it harmed mr raydon it make more sense to say that it should be structural error not because it's constitutional or because  discretionary but because it's impossible to tell whether there was actual error or not for the reasons the judge signed or says there's no way to know that's usually the rationale for having something the structural errors there's no way to know that was going to be my final point is that in a situation like this that what we have to do is speculate in the same manner the government was speculating that mr reed you didn't have strategy when he exercised one of his peremptory i think that that that is a problem we can we can speculate on whether it would have been a better or worse juror were all day long but there was this honorable court is now a