court there are two main issues in this appeal the first one concerns instead this is constitutional right to a fair trial and whether there's a reasonable possibility that her verdict was affected by extraneous evidence  because the jury was exposed to two instances of extraneous information the first one on the third day of trial involved so members of the audience were sorted out the court room and they started cursing and shouting at the court or at the jurors in the hawaiian english and at least eight members of the jury saw this instant the other instance involves one juror on the fourth day of trial brought to the court of the issues that you appeal and rendered findings that were adverse to the position you are now arguing don't we have to find that those findings are clearly erroneous before we can grant re just to the extent that the district court made the proper findings but the district court did not inquire into the effect on the jurors at least especially with the guilty notebook well let's start with the with the people who were conducting the outburst in other words they were her supporters well to be clear about that the court found that the protesters are the you know the people who are scared of the courtroom were connected with the all over there was absolutely no finding that these people were connected but there was a fine then because the district court asked each prospective juror who had heard any portion of the outburst whether they could remain fa impartial and not hold the fact of the outburst against either party is that right the court did make that inquiry and how is that how can we overturn that finding is clearly erroneous what what evidence would you absolutely nothing to do with the parties in the case that's what he did not my question my question is what evidence do you have that is contrary to the district court's factual determination that you would point us reported that he felt very intimidated and threatened and this was after five days went by tween when he saw the incident and when he came back and reported that he felt very threatened and very intimidated now the court did advise that juror i'm telling you this has nothing to do with the case you should disregard it and then he had been in there a couple of times asking can you be fair and impartial kind of equi made an affirmative declaration that he could be fair and impartial so it seems to me that what you're arguing essentially is that you want to reweigh the facts and come out opposite to that factual conclusion that the trial judge made and i'm not sure that the law permits us to do that on appeal i think it also depends on whether the court is looking at this as a matter of extraneous information or an ex parte contact as the government suggests because if it is a matter of extraneous information that the government has the burden of sewing that there is no reasonable possible effects that influence the verdict watch the new evidence counsel for  sense they were in the courtroom but extraneous evidence is quite different the next party evidence i mean some of the jurors here suggested that they were annoyed by it that understand what the problem was  why should we treat this as ex parte as extraneous evidence instead of actually party because my understanding of the case law as rosenthal stated is it has to have some impact on a fact  controversy or the law and out of it do that in this case the entire case had to do with this program having to do with helping the typical mayans and this is tell this is entire defense was based on she did not intend to defraud anybody because she was a native hawaiian who was helping others miss minturn all over her codefendant had a long history of teaching and helping people to restore their land right for native hawaiians the fact that these people were in the courtroom and the judge noted they were in the first row they were native hawaiians they were escorted out of the courtroom for unknown reasons to the jury but they were clearly upset they were cursing in hawaii and in english there is a cut and even the judge found that it's possible there was some correlation between the outburst i don't want to take up your time i just i'm just i'm struggling to see where this is and i was that it was upsetting to somebody i get that that's but that's ex party where's the new evidence that's what i'm struggling with why is this new  i wasn't aware that it had to be my understanding was that had to be related to the case to a case you to the facts of the law and that's that's if that's so then watch x party the next party contact what's the difference between the two well ex parte contact has absolutely nothing to do with any of the law or the facts of the case and the government is i didn't quite have to example that's what i'm struggling with in this thing what is the operative have to do with the law or the facts in this case because they were native hawaiians they were protesting they were obviously upset several members of the audience had identified them as being i'm sorry several members of the jury had identified this being members of the a span ics whatever in a particular community or members of certain religious communities it may be considered minorities so there's a criminal offense and somebody is involved in that particular group is charged that infects almost every trial and so far as i can tell the fact that there may be members of the audience who are members of the same minority group who are upset does not turn over the trial now they're excluded from juries and so on that's a different issue but here  you simply have the fact that there was a protest they went out the judge very properly conducted of why dear as my colleague mentioned this pacifically talked to each juror th potentially impacted each said that it would not impact an ability go forward fairly as far as at the outburst i don't think anybody even quite understood what it was what the point was all of that taken together at least in my mind means that it's an ex party contact as opposed to extremist evidence can you help me how do you bridge that gap i think the gap is bridge because in this particular case  it had to do with and i see i'm almost out of time you know i finish because i see that the entire case the government's case was based on this program being a new program geared towards need of home lions both of the defendants defense was based on the fact that they did not intend to defraud anyone they intended to help other hawaiians and restore them to their land rights so very clearly there was a correlation between why an activism going on as demonstrated by the protesters and the defense in the entire case and i see that i'm out of time thank you council time for your side has expired we will hear from the government honor larry tang on the assistant united states attorney here in hawaii and i'm representing the government i think you're absolutely correct in focusing on what the standard of review should be i think that's a critical issue here and that turns on where there we're dealing with  incidents that the defense complains about if you break it down with this case dealt with from the defense standpoint it may have been about hawaiian rights from the government standpoint however it was about a mill fraud scheme that grew out of debt elimination scheme whereby these defendants marketed bogus financial instruments which they claim could be used to relieve debt and the critical issue from the government standpoint as submitted to the jury was w defendants acted with intent to defraud did they know did they have knowledge and intent that was criminal and those were the issues of before the court and before the jury so here we are on the third day of trial i believe it is at the end on the end of a week and we have these two incidents occur the first incident is these two spectators begin protesting after they are ejected if i may judge tom and i want to make one clarification of the record judge seabright did make comments that they appeared to be  but earlier in the proceeding he had talked to miss mentor all over and says i see that you are friends with them make sure that they abide by the court rules and to a certain degree i don't really know what they were protesting about either the best i can derive out of it is that they were protesting the court's jurisdiction over them as native hawaiians and that's what led to them being thrown out of the courtroom outside of the presence of the jury and this out of the courthouse demonstration which was witnessed by some of the jurors themselves but the point was none of the jurors were in the box when judge seabright made any statement that gee there seems to be a connection between the defendant and these two so i didn't mean to suggest that there are there was and i was just i think i was  discussing with opposing counsel the district court's factual findings on the record that essentially confirms what you just said i guess one of the things that  he mentioned that resonated with me was the policy about how we handle disruptive behavior in the courtroom and particularly where the disruptive behavior stems from individuals who may be supporters or warner more of the defendants i think he rightly observed that we have to be careful about sanctioning such conduct where we don't want to incentivize further disruptive behavior in the the benefit of reducing the total amount to reflect only the amount derived during her participation in the conspiracy so the amount that was imposed is absolutely consistent with the casey case as reaffirmed by the newman case on which i believe judge will stand and you were on that panel as well and we concede that under the prevailing law or we would submit rather that under the prevailing law the amount of the money judgment sets a cap on the recovery on that money judgment that's the masters case which is out of circuit but cited in human i believe and thereby there is going to be no double recovery because both the specific assets that were seized here and the money judgment were taken on the theory that they are all proceeds of the offense so to the extent any of the assets are later forfeited sold and used they will be used to reduce the money judgment so by operation of law she will get the reduction there's no plain error because there's no case that requires that it be done in advance before the sale occurs and there is no double recovery as a matter of law so we submit that in the absence of controlling authority that is plain and obvious that would have required a judge as skilled as judges right to see that there should have been an automatic reduction without a request there's just no plane or the oil in the corning so if you have to be sold  disposition of this appeal in the companion appeal so once assuming the judgments are affirmed they will then be sold then of course in today's market especially the value of the go this fluctuating but i should also point out that if you look at the value of the assets seized even with the offset the offset was far less than the total money judgment so there's just no possibility of a double recovery here and there's no plain error and there's no equal protection of violation which incidentally was raise for the first time in the replied but equal protection doesn't mean that you get identical results particularly where one defendant raises the issue and another did not employ as or any would there be any benefit to our construing the district court's order to make clear the government's concession there will be no double counting were done change result from your perspective but since there is no controlling case law would it be best to construe the meaning of the district court's order to that effect or would the government feel that there should be some clarifying case law on the issue well number one i think the court's order should be construed as permitting or requiring an offset of the money judgment by the value of assets that are later seized and and sold whether that be through construction of this quarter through some case law i leave that to the court i just want to make clear though that i think that the case existing case law is the money judgment sets a cap and it's like a personal money judgment that can be essentially satisfied through any assets of the defendant which would include the us it's overseas is this issue right for review i think not because it's in state and we don't know the value and to the extent she is arguing double recovery in an awkward position of arguing an issue that was really never raised by this defendant before and we don't know what the ultimate value will be well other than to say it won't exceed the amount of the month i was also thinking that  her worst case scenario occurred and for whatever reason the government refused to credit the proceeds from the sale of the assets and then sought other assets of the defendant it seems to me that she would still have an opportunity to object to any recovery in excess of the amount of the judgment and if the district court refused to impose that cap she could then bring another appeal and challenge that ruling at the time you know judge common you're absolutely right in fact the end of the order does say that the district court retains jurisdiction to deal with any later forfeiture issues that should arise any counsel no your honor i'm happy to answer any other questions but if the court has none so for the questions thank you counsel the case just argued will be submitted for decision and we will hurt your argument next in whoa and