mr brown has raised three issues for his appeal to relating to the trial to the sentence i appreciate very much the court's pretty argument order which with respect to those issues directing us to three particular questions i want to jump to those at the beginning of the argument  the first relates to what was the actual obstructive act the district court was focused on to find the enhancement or five c there are four places in the record where the discussions were discussion takes place about that act fourteen where these obstructive ath acts are described and it appears very clear from the way that the sentencing judge discusses them that he is focused on the subsequent e mail with the names and not on the mere statements made by mr brown in the actual proffer with the united states government the testimony or the record about the proffer is really limited to vague testimony by two agents no testimony by the defendant but the testimony from two agents that he was there he kind of said there were other people who had access when asked to describe them he said he didn't know their names they were two african american males that's the extent of the record evidence about that act there is no record of it was that was their understanding between you in the usa where the two african american men were supposed to be in the list of the eight are they separate what's your take on that was a living answer question two is one is i was not the trial attorney we have we have a difficult issue here in that the trial attorney became a magistrate judge over the course appeal no longer has the case obviously i think the presumption was that the way that e mail is framed it's on its face that app to zero nine for the government is that he was attempting to name the people who generally had access to the computer which was a topic that came up with a proffer separate from the two african and there was there's never anything the record that makes me think there may have been a presumption we mention that he didn't know they were in there to people he later gives us a list of names those might be connected but i think the caviar in that e mail make it very clear that we have both mr brown's wife and mr brown coming up with the names of people who are in their house or my reading in the record is that they are the eight names some of which were supplied mr brown's wife and some are supplied by him and i thought the two african american suppose that users were different from the list debate but you're saying there may be some no and i'm saying i don't think that anyone ever took the time of the focus to make that that connection clear particularly because the record is about mr brown saying i don't know who these people were i don't know them and so for them to for him to then be able to produce a list with names of who they were i think is a little bit in congress i think that he came up with what may have just been a vague description i know some people were there i don't know who they were that's what the record evidence says but they want to put that goes back to the wife adding names the wife could have known their names but not him sure but i don't think that then creates an obstruction of justice for him no i'm not saying it undermines i'm just trying to figure out what we're pointing at you know i think so that that music out of the second and third question and the panel's post i don't think this really any record of an answer the question two as to whether the judge believed he was talking about those particular people or not i think the judge was treating this entire series of events as an act starting with the proffer ending with an e mail and it's described that as sort of a one act of obstruction that he found to be i think in his colorful description robin running the rabbit across the trail of the prosecutors  but i don't think because particular that's one of the issues that we've raised and how we've raised it there's anything in the record that you could rely upon to say that there was a false statement that obstructed justice significantly there's absolutely nothing in the record to suggest that the f b i agents who were there for the pro took the time to look for an additional five african american males in his neighborhood who had connections there's a statement the record that mr brown had said those people appeared to have access to facebook that he let them use the computer in those two individuals who were unnamed use facebook there's nothing in the record to suggest that the government went out and subpoenaed facebook for the logon information that day to see what users would have logged in or anything of that sort the entire focus of the government's effort appears to be the eight names in that e mail that they then went out interviewed and called to testify that you would agree that the government could district court if you read its statements than sort of in context so that  computer there was a good i mean i think the government certainly did something in response to those names i think that it falls within williams in terms of post investigative trial preparation and not so much in somehow impeding their actual investigative function i also don't know that those names were false statements or that they were made by mr brown i mean i think that they were made by mr brown's lawyer they were explicitly stated to be individual with access to his computer access to the home even when they testified individuals generally said they had been to their home i think all but two said they had been to their home it was unclear if those two were the names provided by mr brown's wife so i don't know it was clear that they were provided by the way those two yes i think apologize that she's the one of the for the s in the house they were among the two of the wife of the wife's names i believe and i think there's also a question which i haven't seen a case upon where an attorney representation via e mail to an assistant u s attorney in the context of this sort of situation where there's been a proffer is this a four week negotiation what exactly the context this communication is that an obstructive act for purposes of c the government does did argue that it was i think i noted in our initial brief and also in our apply brief the these were not statements of mr brown and then to then use his lawyer as an agent for obstruction i think raises a whole host of questions there is testimony from the lawyer at trial but i don't think based on the page that says that i mean that i could see that case being out there that as long as you communicate this through a lawyer you can't get the client for obstruction i haven't seen that case rather it may exist it's certainly not one that i found in looking at this issue but i think it is i think we're still helped by the fact that it's not actually false a false statement cases you know there is certainly an emphasis on whether or not the statement itself is false or just simply misleading and i think here because of the difference that this the guidelines make between a false statement and it's going to struction or a false statement itself there is some play in the guidelines for recognition that individuals may not be entirely forthcoming in their interactions with the government but the failure to be entirely forthcoming does not require the judge to enhance that by two points and i think at the end of the day on that issue th but no no i remember but that's the point that yes and and i certainly don't think that five c five cs explicitly not meant to include statements which may be this goes back to the bronston perjury lot of cases where you have to have specific als of general falsity or general misleading nature of things i think here he is meant to actually talk about actual false statements and not merely ones which may be incomplete or purposely vague they see indicates that courts of appeals disapprove of this practice this court in collins adopted that same disapproval i recognize that it did so in the context of upholding the practice but here we have a judge who admittedly is out of district because of the sort of judicial issues that you talked about in the last case of the five year delay they were bringing judges in from the district he was a senior judge from arkansas but apparently as part of his regular practice he allows jurors to question  witnesses and to do so without any discussion of the facts of the case with the lawyers as to whether that's appropriate without respect to any sort of examination of whether this is the type of case what your questioning may be more prejudicial or more probative than in any other particular case without providing any final instructions to the jury about those questions and without explaining to the jury really the process or why there might be questions which were unanswered but in the record reflect your that with the district judge took most of these columns precautions  notify the parties in a week or two before hand that he would permit your questioning i think before the actual questioning had you know some sort of when i was actually sent opening  measures he adopted two of them or three of them but not all of them with respect specifically to the notice to counsel my raises in my reply brief there was an attachment made in the district court on a hearing on a post appeal submission that included an e mail from trial apparently to trial counsel he was copied on it from the law clerk of the judge it is not in the record in any way prior to the appeal and the government do not attempt to expand the record in some way under rule ten to make that e mail part of the record so it's our position that is the court's stance are today the presumption is that that there is at least an absence of that and i can't proffer to you one way or another whether the trial judge who is now the maj to translate the responded to that e mail whether he perceived that e mail whether he didn't a thing about it what we know on the record is not in the record what we know is that he comes out and gives an initial series of instructions to the jury i will concede that that attorney friendly could have stood up at that point and objected t practice he did not do so i think i hope this court recognize that it puts the judgment in the tourney in a very difficult position once the judges announce the jury question is going to take place and it does and the attorney then objects so i don't know that that that prong one way or another particularly helps or hurts our case because i think the record is very muddy he certainly did not provide any final instructions to the jury about what to do and he did not explain to the jury why some questions might be proper why some other questions might be improper here what i think separates this case from the case is in the six circuit is the demonstration of prejudice there is not a single question by the jury until michael brown takes the stand not a single one on day one no questions from the jury day two opens up it's going to be the end of the government case and the start of the defense case and judge wilson says oh jury just want to remind you haven't asked any questions yet but you can ask questions if you want mr brown takes the stand and they propose i believe eight separate questions that posture where the jury has sort of waited to get the explanation i want to hear what you know did this guy do it or not and the way these questions are framed are about his alibi or about his defense how because the prejudice is not necessarily the questions that are allowed to be asking the judge hopefully would bar improper anybody there they would just be thinking of sending i mean it's not like their brains are turned off until it's questioned and i think that goes directly and you'd be surprised in some trials and i think that question goes directly to how there is or is there not a change in the jurors perspective of their role when they know they're allowed to ask questions of witnesses or not it may be that a juror who sits to a trial has those sorts of questions in their mind and says i wonder about this i wonder about that i suspect and i think the panel counsel is that that that happens the question is when the judge tells you that you're going to play a role and sussing out the answers that question doesn't change your position in such a way to undermine the right to an impartial jury trial oh because i think the judge would tell you as a jury don't make any conclusions listen to the evidence and the government bears the burden when  then you can ask questions and insisting that i think it tells the panel if there is who tells the jury you should find out whether or not this guy is guilty through your questions through your inquiry moves the burden from the government's role of putting forth evidence of the defendant being able to be silent to having to respond to the questions the jury he did but i think that there's a different this week saying i'm going to testify take questions from the government or i'm going to testify and take questions from individuals who are before me and a truck going to ultimately determine was a fair amount of complexity here when it comes to trying to figure out how you know chase down to use a text links then the servers and you are in the piece been in for shared how it fit together  good the computer the server be accessed from outside the home and or just inside so you know it might be one of those cases where you know a trial judge might determine within his her discretion that it be appropriate for jurors to ask sor technical questions so they understand that complex sort of computer side of the case that makes sense it does make sense and i think i'll say certainly if the judge had done any of that analysis maybe would be in the record and we could we could turn to that as a second point though the majority the questions did not relate to sort of tactical pieces a few of them did but generally they are more broad talking about alibis and things of that sort thank you all for you have your full rebuttal time thank  the i believe the district court considered both the statements at the meeting with agents and representatives of the government as well as the list of eight names that was supplied in the e mail the following you react to this approach to the problem so you have the two african american males it is confusing as to what's going on in the district court is not very clear about this and all ten conceivably counties rabbits across trails designer stand it there's no evidence that the government pursued the two african american men and there's no they didn't start searching for people that maybe met this met this description or tried to get a better description so i'm really struggling with why that did much of anything so that makes me think the only way you can justify that just a course decision is the aide and it is bothersome to me that it's pretty carefully done i mean you know there this is actually working with the government that was their theory of the case they're allowed to have a theory of the case it's says this is not meant to be exculpatory we have the wife participating at least half of them no one's prove that it was a lie in the sense of these eight people didn't exist and didn't have access so i found myself really wondering whether this was appropriate as well be there a lot of questions there let me try to answer all of  them first of all you know between the time of the meeting when we be focused on the eight well i think you have to focus on both to me it was mr brown statement at the meeting that we had actually saying to people we don't know whether it's false or not government i think when i think it's i don't know i think it is false i think there are certain in peter if they follow up on that significant way well there are only twenty eight hours that elapsed between that meeting in names there is very little realizing that you know the very distant credible story that the economy and the government even say ok i just want to know it's just a list of eight include the two african american males to the government asked the lawyer that question it's not in the record but i did ask lawyer by e mail the following director on the record so there's nothing there is ok so that makes me think it's the aide well i mean we we obviously believe that eight would include the two men that he referenced there are four names that are attributed to his wife that he says he doesn't know the names right he did not know the names to argue your theory is the wife supplied this these are two of the two of the other four are wife i find that that's even more hurtful to your theory but so it is just a it is just a all eight are listed in the e mail and the e mail says this is not meant to be exculpatory yes or but it really is is putting that statement in there doesn't change the government's obligation to investigate these claims that third parties were accessing it just ran through these people what's the proof it's not a lie that these eight people didn't have access to the computer it's they all testified they did not use his computer there was evidence that his computer was password protected i thought maybe it i don't have the e mail from me i thought was x the computer the statement was they all computer within days before they were distributed to pricewaterhouse coopers into the political party offices his explanation for that and our prompting was that he had seen he had seen two afghan merican men whose n he didn't know using his computer couldn't provide a win provide any other details about the circumstances of that and if we submit it's pretty incredible to claim that two strangers are using your computer and within various twenty eight hours your honor he his lawyer well ok and then so what what what significant impediment or obstruction then does the eight names because well then we're obliged go find those folks agents interview them have to investigate yes when people are being you know looked at for crimes where what was the impediment to the investigation not just the investigation well your honor he implicated eight people access to my computer now i can me that's what by the room well in the context of this inquiry from us who could have plugged in these three flash drives in that context it's clear he's telling us that we need to get that he's going to assert that these people could have committed this crime using his computer that the four names that he gave to those folks at trial say they did not have any not have access opposed to actually access i mean did they say they didn't have access access to the computer yet they also said every one of them said we've never used his computer that's not my question access is different from use did they say they didn't have access i don't i don't quite understand i mean they're in the same house six of there's a difference between being able to walk to the computer and use it right actually using or my question is did they say they could not be could not so to speak walk to the computer and use it well they say  only ever used it now i don't know but and then another proof was going to wrestle about this kind of basic distinction did they speak to whether they had access if you can just give me yes or no on that they testified right they testified did they speak to this issue whether they could access it as opposed to used it they did not but the proof was that the computer was password protected at the time that the search was executed so i guess i mean i'm struggling to see what the impediment is here i mean let's say i mean he might have been truthful and saying ok well these people had access you might want to check that out ok how is that how is his provision of those names a substantial impediment that's just struggling with that yes or your had we not gone and found those people who have been unable to find those eight people this would have been part of his defense that someone else could have done this trial as the district court portrayed it gave us these eight red herrings require that i just go interview these eight people who had nothing to do with this if you accept the jury's verdict he testify he was going to deny it and a way of seeming to boast risk credibility to say there's eight other people that have access to government said she said thank you because we're going to put every one of them on and they're going to say i don't know what he's talking about and look you've got your conviction it worked that's obstruction of justice but you should be asking for more of it well your honor it was helpful it ended up being helpful it could have easily not been helpful had we not been able to find any one of those eight people and had not been able to produce all the people at trial questions aren't those pretty good questions you said there were eight people who are these people turned out that way but if we had not been able to locate any one of those eight had not been able to compel their testimony a trial it would have left a hole in our proof that was the defendant's and am here was to set up a gauntlet of evidence that we had to track down in hopes that we would fail and in the end he would have someone else to point  finger at if the conclusion is that the eight don't work too don't work whether part of the it or not does that mean the obstruction of justice and hansen has to reversed and that it resents saying there's no instruction justice and answer no i don't think so you know  it's not true that they had access to his computer simply by being in the house certainly it wouldn't true that they'd ever access his computer and so we believe that the district court there was fishing evidence to support by a preponderance of the district court conclusion that the defendants claimed at the meeting coupled with e mail that states that you know his emails themes the if i could switch that if they're not for the questions on that to address the issue of the juror questions of the district court  did follow the advice in collins there was no objection to the practice of juror questions at the time it was not plain error for the judge to conclude that this was a case that was appropriate for juror questions it involved a number of issues as judge poe pointed out involving bitcoin in the use of tor evidence recovered from an allocated space registry records from the defense computer finet raised issues about use of character to prevent automated post piece band there were questions about whether someone else could have infiltrated the network all of that supported the district cour decision that this was an appropriate case defense counsel a trolley acknowledged in opening statement that this was a very it would be a lot of very technical evidence in this case and it is some motion it is very second sentence was that this was a complex and complicated case head the defendant raised an issue about the practice i'm sure would have prompted the district court to make findings on the record that would support his decision from all evidence the record both both sides were amenable acquiesced in this practice the questions there are living questions total eight of them were posed posed during the time that the definit was on the stand but only three of them were put to defend it there was a colloquy mung the lawyers and the judge in which we agreed that five of them were meant for mr brown and so  first i just want to place in the record when reviewing the brief i realize i made in the statement about some of these questions on page sixteen the two questions to agent stevenson or over mr brown's objection they were not the counsel did not object to those i want to clarify that part of the objection that is also true and that's a lot of where it goes and we're in a in a plane or world but looking at the questions themselves i think does say something about that there are only two questions which relate at all to computer topics the rest are things like can we see the brown envelope why wasn't handwriting stun who were the black males that were mentioned why was heather heather daniels not a witness were there other out of order service orders kind of monday and things about the facts of mr brown's testimony and his defense and his assertion of this or why he was doing what he was difficult for jurors to be both active participants in the adversarial process embroiled in the question of witnesses and also be impartial fact finders standing aside and here you have clear evidence of that nature the questions that these jurors have become active participants in the fact finding quote fact finding process they are searching out answers their job is not to do that their job is to sit receive the evidence and in terms of whether that evidence beyond reasonable doubt convict mr brown particularly because there were so few of the collins procedures employed there was not a discussion about evidence there was not a final trucks about how they should briefs thank you thank you thank you for your arguments the morning we really do appreciate the case will be submitted i think that completes our morning calend