right this laboratory yes they may proceed when you're ready thank you your honor may it please the court counsel good morning my name is sam lafferty a practice in cedar rapids iowa i represent mr anthony hall jr of cedar rapids  i'm substitute counsel because mr hall's prior attorney sadly passed away about two months ago there are a couple of interesting or if not novel issues in this case in addition to the the mathis issue i don't know if the court has any specific questions that come to mind immediately otherwise i'll start my discussion first the defendant had  his plea and go back to trial he was allowed to do so and that in itself i think is somewhat novel but of course coming up to the trial the government wants to use the you statements in that plea are all far correct it is but whether the government can use statements from the plea contract a trial apparently is a denote a review and it could be in part because we're looking ations and people proceed on that basis and then oh maybe we don't want to do this whether there's a mistake or whether there's additional evidence that comes out but he has to change his mind and so when the court allows the government to rely on that waiver and allows that evidence against the defendant at the trial lawyers that prejudicial there is not much more  if it very well could have been accidental and there was the defense witness ms merlin his girlfriend who had a very reasonable explanation for it and so without the confession it's very very likely that the defendant would have secured an acquittal and that's in that situation the other interesting facts from this case have to do with an incident that occurred to me when a juror i believe it was following the close of the defense case and before closing arguments and as the jurors left for the day one juror got in her car and she saw the only defense witness the defendant's girlfriend i get in her car and apparently followed her down on a busy or thoroughfare in cedar rapids maybe a couple of miles it might have been probably was just a coincidence but this juror comes to court the next day and talks to the other jurors about it and she is upset disturbed enough and so are the other jurors disturbed enough that their quest of an escort to their cars so yes ok sort of double hearsay but beyond that there's no i don't see i don't see any real evidence of that  were affected by this of brad i think the concern is that she had not kept it to herself if she had kept it to herself it might have been alleviated just by a conversation with her in open court or even a little bit of fact finding and and explain ssion explaining to her oh that that person lives right near you or something like that but she had discussed it with the other jurors and i believe they were allowed to have an escort to their cars so but i can take a look at the record while i'm waiting for counsel to ensure argument and in the at some point the court gave out like a cautionary instruction that's correct i wasn't that it wasn't that suppose so this court would then have to decide whether it's a cautionary instruction and it wasn't bad it's if it directly addressed the very situation that was was the concern there but was that enough to alleviate the prejudice there there again when we're talking something about safety of jurors where a juror's emotions are going to be coming into into play it really really starts to disturb some of the assumptions and guarantees that we have for a fair trial for defendant if he's denied an impartial jury if he's denied a fair trial obviously those are  juror that brought this to the attention of the court that express of concern doesn't the record show that that juror was satisfied and stated that transcript does appear to say that but again when we're talking about something as serious as having an impartial jury or having a jury that might be swayed by their figures it we need to take a  five ninety thank you so then the last two issues that are briefed are somewhat similar the defendant was again scored as a a career offender in an criminal in the final final final p s i i and he was allowed to make his objections which were overruled by the district court the that the law under mathis is continuously evolving but it appears that this particular law in texas robbery does have a lower level of conduct that can support a convictions that's below the level of a violent force or a violent felony and so the position of the defense is that it's not a it's not a crime of violence for purposes of career offender and because of the language under career fender is so intentionally knowingly or recklessly causing bodily injury to another and that's not the same thing as intentional or knowing infliction of bodily injury and  also the focus on physical force of course prior cases clarify that physical force means force capable of causing physical pain or injury to another person and you know the traditional view of this would be one person touching another or using an instrument of lethality against another it would seem that under the texas statute it's possible for someone to for example oil barrels of fuel oil from a manufacturing company spill some of the fuel oil the next morning somebody comes in and slips and falls did they cause an injury yes is that the kind of thing that violent for know likewise if the if a person breaks into his ex wife's house takes property and then leaves a threatening note that i want to be coming over for you in the next couple of days that's not an immediate harm information delivery of narcotics and that the two were based on something that occurred within one day of each other i think there was two of them are controlled by the defendant was convicted of both of those and they're both a drug felonies but it's in the same charging instrument it was not separated by an arrest the sentences were imposed on the same day so they should not count as separate convictions for purposes of  transport this court into the courtroom so that you can understand the demeanor and character of the jury when she's telling the court about this and of course on a dry record that's hard to do but i would know that  what was that after the hearing by myself by the government i said i think what is not captured on the record was her demeanor she seemed very casual she was not nervous she was not upset and the judge read  escort to her car the next night and i will say i think the confusion about who requested the escort is because during the questioning the juror said i mentioned that i felt a little nervous and asked if they w is very different but i think that's where the confusion about who is asking for what i think she was asking on behalf of the jury pool not that all of the juror suddenly thought that this was such an issue that they needed an escort but i strongly disagree with marijuana were in the center console right next to where he was driving and then on his phone there were facebook there was a facebook video of him mixing up a drink and right next to that drink was a gun that appeared identical to the gun that was found in the it could be of the marijuana he was smoking but officer heber testified that in a case that where someone is facing a lesser misdemeanor charges the degree of flight that he exhibited would have been unusual the fact that he punched the officer in the safe is really an extraordinary attempt to get away from the car that an officer hiebert experience he didn't typically associate with people who had who were driving without a flight took place your honor prior to the police discovering the firearm in the car well but he may have known it that would be the government's argument that he knew that that firearm was in the vehicle and that's why he on that point your honor i would return to the video though because they do think that this video is strong evidence he's mixing a drink and the firearm that appears identical to the gun in the car is sitting on the table and the video is showing somebody m and then he turns the camera on to his face and speaks into the camera and so you know by his video that he is within inches of this fire of of what appears to be the identical firearm on a different occasion and when you have that type of possession evidence combined with the knowledge perhaps that is flight shows that the gun is in the car i think that is strong evidence of knowing possession of the firearm i would also note that when it was found in a car it was next to sixty four individually wrapped bags of marijuana and i believe that miss merwyn testified that she does not deal marijuana and that she does not have anything to do with distributing marijuana so then you have his knowledge of the gun next to his marijuana and then you tie in the expert testimony from special agent magers about how firearms are tools of the trade for drug dealers and they carry them to possess their drugs or to protect their drugs and their cash and then i i think that there is in light of all of that very strong strong case that he possessed that gun absent the stipulation of fact how you violate the texas robbery statue it is a crime of violence and so we don't need to get into mathison whether these are elements and whether it's divisible this is categorically a crime of violence putting aside whether it's a cat or a crime of violence under the use prong what's interesting about this case is that the court can reach the issue under the guidelines calculation  ex post facto rule but what the rule is the one book rule is that you then go back and use the guidelines manual in effect at the time mr hall committed his crime which is the pre august two thousand and sixteen edition which did contain the residual cla holes that residual clause is still good and so to reach whether or not this robbery crime is a crime of violence this court can analyze it under the residual clause analysis so you can put mathis aside you can put does it involve the threatened use of force you can you can set all of that aside and look at the law does robbery in texas fit into that residual  cases back cited in the governor's race i believe it's from two thousand and seven and interpret the net and finding that yes this robbery is a crime of violence under the residual clause if the court find that then he has the one other controlled substance offense because of the nine twenty four c he guidelines out of the three sixty to life and of course the judge sentenced him to three six three hundred sixty months at the bottom of the advisory guideline range and under that analysis the court should uphold the conviction if the court wants to analyze it under the use prong either in the a c c a or the used in the guidelines i still think that the court reaches the conclusion that it is a crime of violence in texas you have two different ways to commit a robbery the first one is intentionally knowingly or recklessly causing injury causing bodily injury and i think that there's a long life and cases out of a circuit that says if you actually cause bodily injury then that is the use of force i would spend a moment talking cause an injury you're still using force no less than someone who knowingly or intentionally causes that injury so under the first prong it meets the force test the second prong is just intentional an all or knowingly interpret the crime and i don't think we have that in this case  i think with the rest of the earth respect the rest of the use of force issues i believe that the government briefed at the fifth circuit interpretation of using force is not applicable in our district the villa hernande decision cited by the defense talks about the concern with wow you could give somebody a place and drink and that would cause them harm and so we don't consider that we have squarely rejected that analysis in rice and castleman in fact  lido rose rose this as the threat of use of force and how we interpret those in the circuit and unless there are questions from the panel i will again rest on the rest of the government's briefing  ten to i guess thirteen in this the transcript is called excerpt of jury trial proceedings on june fourteenth so in the middle of the trial the court questioning the individual juror said ok so she didn't say anything or she didn't make any gesture to you in the in the juror said no it was probably nothing but she also has said i was just a little nervous the court said anything about that that would keep you from being fair and impartial when you make your decisions on this case and the juror said no then the court asked when you had this occur did you talk to any of the jurors of moderate and the juror said just th morning and the court so what you say to them and the juror replied i just mentioned that i felt a little nervous in the course that ok the juror continued and asked if they would walk us to our car tonight so the court asked other she apparently spoke to some of the jurors about it but the event happened to her so if this juror feels comfortable incline that it's not a big deal i see no way that the other jurors would think that it's a bigger deal since it didn't personally happen to them in defense counsel says well what i guess concerns me is that the jurors asked for security from the courthouse to the parking lot so that's where i took the sunshine repeat of last night of this was defense counsel statement well i guess what concerns me is that the jurors asked for security from the courthouse to the parking lot after the case today so i'm not sure it's clear but i wanted two hours of that's what he said that's what he said but the  problem is that the juror had spoken with the other jurors about it and i don't know that we can go so far as to assume that the other jurors would be less of a problem with it sometimes it didn't personally happen to them they if they heard about something like that they could very well be more upset and again we don't really know who asked for security to take them to their cars it sounds like perhaps it was just that juror but in the presence of the other