on us my name is ben coleman i represent appellant armaan sharp atros ian who i think is number two on your list of three our plan was that i was going to take ten minutes to addressed the first issue in the joint brief which  is the question about whether there was an improper allen charge after a juror wrote a note asking to be removed and i'm going to take ten minutes since that's its own use you know my co counsel each going to take five minutes to address issues that are particular to their individual clients  of course will modify that if the court has a different design with respect to what i'll call the williams issue it's our position that when the jersey sent the note saying that she couldn't agree with all the other she wanted to get off the jury so that perhaps a replacement jury would agree with everybody else that the district court heard on her williams wanted then gave an allen charge it's a very similar circumstance to williams the government i think essentially has two points that they think distinguished this case from williams in the first is the claim the standard of review is different their contention is that the issue wasn't adequately preserved below we have several responses to that the first is that when the dish announced what it was going to do counsel for mr darwinian objected he said i object to an allen charge at this point it's our position that that objection was good enough to dish record it evidently didn't think it was given an allen charge disagreed given in will and then counsel said i object to an allen charge at this point then the judge said that's not what i'm doing i'm not giving are now in charge then defense counsel said well i thought that is what you're doing and the judge said no i'm going to read this instruction and that's what happened so he didn't say anything about the juror revealing his or her identity but the he did object to an allen charge and then he specifically said when the judge said that's not what i'm doing he said what i thought that's what you're doing which is really what william says is that is what you're doing you're giving an allen charge so i think the record is is you know sufficient to preserve that at this point under under the federal rules of criminal procedure in this court's case that there was nothing further distinction that the government is contending which is that the signature of the juror was sloppy and the judge couldn't quite make out what the signature was it's our position that that really doesn't matter what williams the jurors as a holdout that's the concern that that we have a coercive mess by an allen charge so so doesn't it it doesn't matter whether the the judge could could read that the jury signature from a prospective no it doesn't and that's that's precisely what i was trying to say but probably not heard well which is it's the focus is on what the juror would think and at that point the juror thinks that the allen charges leveled at him or her because they've signed the note they've said i can't convince everybody else i need to get off the jury so when the allen charge comes in the jersey is thinking that the judge is telling that particular juror consider changing your mind it's important that we reach  good morning to we filed on behalf of merit of any and if the court has any questions about the second jury coercion issue i would be happy to answer them if the court does not have any questions about that particular issue i would move into the sentencing and restitution issue for mr darby and i think it's important to clarify what i am not arguing i am not arguing that mr di binion cannot be assessed guideline points or restitution based upon the loss that was proved at the trial i think it was about two hundred seventy eight thousand that was approved for the bank and credit card fraud and about forty eight hundred for the ninety nine cent stores that was proved victims testified and we have no objection to that that's clearly was approved by the government but in order to get the guidelines really high up over a million dollars the court excuse me the government relied on to think exhibit one which was not presented to the jury was totally in comprehensible printouts are you talking about the spread sheets from the banks right while they format that was their argument is that incorrect that is their argument but the problem with that is there was no witness who testified from the bank or the  financial institutions or from the ninety nine cent stores who could verify anything about what these things meant who could say that you know this is the loss to my institution and which is the normal way to go and with terms of the ninety nine cent store first of all you know it doesn't even matter whether it was an electronic form you can't understand it the way to interpret it is totally arbitrary so you did make the point in your prefer that it was illegible and i went and looked at it in the record some of them i could read and some of them were too small for me to read but the government argues well you could see them online and you could read them that way so are you are you a hear what your answer got was yes it was i did look at it on a disk that i got from the trailer i still couldn't it is illegible but the judge who is required you know to rule on these objections  particular exhibit was not presented to the jury at the time of the trial and during the sentencing hearing it was not presented you know blown up on a screen so that you could look at the legibility so sentencing that normally i just if there is issue of reliability which the just record found mean there is no requirement for fake thems to testify for the first set and saying the judge did not actually make a finding that and they're usually presented by the government and it's the victim's statement about what the effect of the crime was on them and i don't recall there are normally is any finding or testimony at all by guarding that as i think that's a very good point but because the issue here was the government did not present any victim impact statements the government did not present either through trial testimony or at the sentencing hearing any  affidavit or any declaration from any bank official from anybody at the ninety nine cent stores or for anybody and it's not a requirement in the same context i believe it is because we still have to look what are you read is there something in the sen guidelines who are cases that would help me understand that well it is true that for example the rules of evidence do not apply in sentencing proceedings but this court has held time and time again that the evidence that is presented must never the less have intuition of reliability and it is our position that none of these printouts had they're totally meaningless and i just didn't talk about the ninety nine cent store for example we don't know what year these printouts came from there was testimony well it was the two thousand and four day it was manually entered that does not mean that it was necessarily there for two thousand and we have all these like swipes that happened that looked like you know it's coming in second after second after second at midnight when the store is not even open the officer who testified said i don't know if their debit lose the gun and ninety nine cent store refused to comply and the government did not want any more continuances if the government really believed that it could prove that there were losses and intended losses way over a million dollars and why couldn't the government bring in any of these witnesses or present some affidavits if i could not find a single case in which these vague in comprehensible illegible and unreliable printouts are used to provide  the loss over a million dollars and that's our position that the sentence should be vacated and remained of them let's start at square one are there any questions i  bank fraud access device fraud case the main issue that i wanted to discuss today was the the new manner in which this simple fraud case against mr  and tried as part of this massive racketeering prosecution against a media and power which included evidence of gangs guns kidnapping extortion a mexican mafia witness who testified about having committed murder and our my argument is that the jointer of mr president keys to the armenian power case coupled with the introduction of it in the simple prejudicial evidence and the way in which that came in the way that the limiting instructions happened are often didn't happen deprive him of a fair trial from the very beginning mr parser danya was linked subtly sometimes and explicitly with armenian power the case agent for example would emphasize mr president isn't charged  with the racketeering counts and there were those sort of subtle distinctions made but then the government repeatedly introduced unnoticed prejudicial other acts which even in the brief they don't call other but which which were evidence of other crimes that mr president in had allegedly committed and the way they came in is that the judge would say on one occasion in any event would say i don't know where you're going with this but ok let's bring it in ok well this sounds prejudicial and then later on with that would let the evidence stay in and then later on strike it and so most of the evidence you complain about the district court the order that it struck and i think did he give the curative instruction to the to the jury regarding th anything you've heard about extortion related to mr percy dani and you were not to consider that that instruction that was the instruction was you're not allowed to consider it against him any more that was after they'd been told that they could consider it as to his knowledge of the council he was charged with and at that point the jury didn't even have an a definition of extortion so it's you know unclear how much they would have what they would have understood was being stricken but that evidence stayed in for a week the other what i think the most prejudicial evidence was in that the colloquy where the prosecutor brought in that and  judge sustain the objection and said don't consider that and so then the prosecutor came back and said ok so you were held in a store but don't you know don't tell me the type of store that you were being held in i mean it was repeatedly sent to clean it up and to erase evidence to destroy the evidence that was the one piece of evidence that remained if we followed the instructions of yes that that remained and that was just supposed to go toward his knowledge of the scheme and that's really the problem is that these if you're going to try a case like that you're going to try the little guy with with the big you know scary racketeering case and the really have to be clear instructions clear with with each witness about whether this is to be allowed to be considered against him if there is evidence you really have to explain to the jury ok you can't consider this as to mr president character you have to this only is going to his knowledge and you know i didn't understand when i wrote the opening brief even what the government's theory was that it was just sort of knowledge that carbon ian was a bad guy wasn't that sort of specific for a for b knowledge that we think of about whether it's you know knowledge of of the knowledge required for the bank fraud and so i really would the like to say that that even the evidence that was stricken was just so prejudicial and coupled with sort of just constant innuendo that mr president really was involved with more than he had been charged with that that is that his case should be reversed on on the grounds of even what had the judge struck from the record what are you basing your your requests reverso on the improper addition of evidence or the  failure to sever well both i if i we also filed a severance motion in this case and i'd like to also just emphasize that because these cases are charged so often in the  district these huge record hearing cases where the little guys are frequently brought in and you don't severance here would not have been and it this would've been a short trial it would have been easy to sever mr p didn't need to be at this trial where there was all this really frightening evidence of gangs and guns and so on i we raised both of those issues the severance and the admission of prejudicial evidence  good morning may it please the court elizabeth gang on behalf of the united states i first like to address the joint issue that all of the defendants have raised in terms of the williams issue when the appellate counsel came up here there was constant juror number and all we have is a signature which we can speculate the first name is jan but there's no evidence that we know there's a lot of harriet life from our cases the the the evil that we're concerned about is not whether the court knows your area is but whether the holdout juror thinks that the court is directing the allen charge continue deliberating change your mind if you think you should too to that individual so that the individual feels that they are the cases where the court does raise the concern about the course of evil that is imposed on a holdout juror the cases are very careful to know that it is the important factors are one that the judge knew holdout jurors identity to the holdout juror knew that the judge knew his or her identity and three that holdout juror was a holdout for acquittal i don't think you have any of those factors in this case i think what you have this is not a case where the district court's instructions work to blast a verdict out of a deadlocked jury i think if you look at the totality of the circumstances and the chronology of deliberations what you see is a jury that had not deliberated for a significantly long period of time in comparison to the length of trial but this  juror i'm sorry to interrupt you but this juror was asking for more than just a hung jury this juror wanted out he said excuse me because i can't go along with the rest of the jury and in response to that the judge says after giving the the pattern instruction he continued and said so the easy answer and the answer means the answer to this juror's question the easy answer is no you can't get excused it's obviously directed to that person who wrote the note and then he goes on to say the jury is the jury and we can excuse one of the jurors you have to come to a decision as to the twelve of you unanimously and he goes on to say and if you can't you can't but that juror obviously takes that instruction to be directed specifically to him or her doesn't really fact that is missing in this case is we don't know if factor was a holdout for acquittal or conviction cares we don't know if the majority were i think the concerns raised by williams and say challenge that progeny is that the course of effect of the court's instruction juror to give up their consciously help belief in the not guilty of the defendant and go with the majority for the guilty here we just don't have any sense of where the majority stood and where the holdout juror stood and important your honor after the district court identity she identified herself by name a number had said she was you know she couldn't be bombarded by the other jurors a change of mind she couldn't face the defendants with convictions and did anything turn on did one in williams did the court know who was hold that the hold out was for acquittal and two did we say anything turned on that it was not a specific finding that it turned on that one fact about conviction or acquittal it was the combination of factors ok so so where were do i look to seems very similar it's hard for me to i think it would be hard to explain why it makes a difference that the juror who identified herself to the court and it would make a difference if the court actually couldn't read the handwriting and i'm not sure why that would make a difference i do i understand her i understand the concerns raised by these horses is the coercive of the belief that the holdout juror has at the judge's instructions or directed at him or her  but my argument is that there are other circumstances that those courts raise in which that concern is paramount because the judge is aware that the hold out for example is for acquittal as opposed to conviction and here we just don't have those types of course of circumstances i mean you can certainly infer from the fact that she said they're all against me and i'm the only one who disagree his words to that effect and and after a delay they all vote guilty i mean you certainly can infer that was a holdout for acquittal of that that seems to be the the most recent poll in forensic can be raised and i just don't remember in the other cases i looked at that that there was any specific discussion that we know that she wants to quit if it were otherwise if she was if there was one holdout who thought that the defendant was guilty we might have reached a different result i just don't remember anything like that the decisions do not turn on that specific fact they would turn on the combination of facts yeah and i do think in this  unclear based on this record if we have the same circumstances that raised the court's concern and williams that would require a reversal of all the convictions but if nothing turns on acquittal or conviction and you say there's nothing specific in the cases and i don't recall anything either then it really doesn't matter right that the issue is if the juror is being coerced or feels the course of us act of the deliberations for action note that comes out where the jury indicates they're unanimous on some verdicts but they are not unanimous on either verdict and asked for guidance on how to fill out the verdict form at the defendant's request the district court instructs the jury to continue deliberating  district court it offered the parties the option of taking a partial verdict or instruction the jury to continue deliberating because they had only deliberated for a day which in the district courts very correct judgment was not very long given the fact that it had been three week trial the court then very briefly instruct the jury to continue deliberating see if they can reach verdicts you know on all the counts the very next morning only approximate thirty minutes off the start jury starts resuming deliberations no six comes out and in substance it's similar verdicts but rather it encourages jury to do so if they can do so and during this exchange the four person does not indicate to the court the further deliberations would not be useful the only true quote unquote allen charge or what can be construed as an allen charge i submit came in response to no number seven which is the whole about journo and that is now in charge under this court's decision and williams but if you look at that note in context instructions including model jury instruction seven point one were perfectly appropriate and do not plainly indicate coercion under these circumstances  would be considered an allen charge although respectfully given the fact that it was inert this court's model seven point one instruction it did not actually have the hallmarks of an allen time it was in had similar to what was given in williams it is which is pretty much the same thing i was your guy to defend our opinion sentencing in restitution argument i just wanted to clarify a couple of things one the loss amount that the district court calculated was not based on the bank's spreadsheets that were provided to the court the sale terminals that law enforcement was were able to recover from ninety nine cents only stores after seeing video of the scheme or swapping them out those records were downloaded duplicates were eliminated and a total of one thousand nine hundred eighty three you not unique access device numbers were obtained now as this court is well aware and it's case law in fraud cases the court only needs to make a reasonable estimate of loss so if you take those access device f numbers you multiply it by the five hundred dollar figure you're out of processing nine hundred ninety one thousand dollars given the fact that there was testimony and evidence that point of sale terminals were seen swapped out at multiple other ninety nine cent stores but were never recovered by law enforcement and at five additional to terminal us were recovered but they had bluetooth skimmers which allowed the downloading of the access device numbers so there was nothing on the skimmer or the point of sale terminal it was perfectly the reason it would be perfectly reasonable for the district court to assess infer that a minimum of eighteen additional access device numbers were a tree from those eleven other access devices which would give the court a very reasonable basis to estimate that losses over never indicated that it could not read the records that they were illegible but they were accordingly unreliable for the court to rely on and secondly your honor it's not in the record but i did go on pacer prior to oral argument and the records are available online and i was i'm sure your honour's have access to such as the district court but again there's nothing in the record us that would indicate how the district court observe those records all we have is there's no indication that they found them to be illegible they also opposing counsel also argues that agent did testify and he did explain how he prepared your honored reference to exhibit one which was a summary chart of those last minutes and he did explain that he had based that summary chart on the bank spread sheets and had been provided to him as well as the subsequent information that they could provided to him to correct some of the calculations the spread sheets themselves are very self explanatory they are not completely devoid of logic what is redacted in the spreadsheets is the identifying information for the victims obviously we have individuals who had been victimized once we did not want to publicly disclose more identifying information so they could be victimized again but those spreadsheets were within the timeframe of the charge ninety nine cents  delineated for the jury the differences between the testimony and importantly your honour's i think looking at the record as a whole you see is agent the foundation for agent seven says testimony was made and the district court was very did conduct this gate keeping function in terms of questioning even stephens when it did not understand the nation first testimony sustaining objections when it found that the test foundation was lacking policing the limits of agent expertise and just ensuring for that the jury had all the information it needed in order to assess agent stephens opinion but isn't that all the more reason for the final instructions to include the dual role your honor and that is and as the record indicates the district court intended to and inadvertently omitted the instruction and the parties the defendants did not raise that omission with the court either the close of the final charge or at the post  after the jury was retired to deliberate the party state afterwards to deal with scheduling issues and they did not raise it then do you think is waived i do think it's a plain error analysis your honor and i think this is a recount back to the purpose of playing or in the purpose obviously is a this issue could have been avoided i do think in terms of the actual substance of agent seven says testimony i think it is clear that his chief completely properly opinion testimony i think under gadson as well as the lev he was a person be a witness and he had adequate foundation to testify and in terms of his expert testimony there's no challenge that to his expertise and the limited expert testimony he gave there was a motion in limine either was or not there calls with the regards the english calls obviously the english recordings are evidence but he again interpreted the english words and you know i think that was enough to preserve their objection to his ability to make those interpretations  regardless of whether you call it expert testimony or lay testimony you know i think that well maybe i misspoke in terms of there i think they did not that's not sufficient to preserve the issue of the dual role instruction i think in terms of the challenge to the testimony that does come to under abuse of discretion psychologize if and then that's fine and it looks like i'm out of time for m on the williams issue i think for the first time the government has argued that the distinction is that we didn't know which way the jury was going technically here whether they were whether the hold out was for acquittal or for conviction they didn't raise conviction in addition i think the sort of the seminal case in this entire area is the supreme court's decision and brassfield which is a from back like the one nine hundred thirty s which was the which was the case where they were the supreme court made a prophylactic rule that a judge is not allowed to inquire of the jury as to how they're divided numerically but there's no there's no difference whether they're inquiring as to guilt or inquiry as to acquittal you know the system is designed court reversed on this dual role failure to instruct on the dual role without a request at all so i think that that's important and i think it's important to remember that agent's devon's testimony and his interpretation of these calls most of which were overwhelming i think there were only a few of them in english constituted one third of the entire government's case and so therefore the failure to instruct on the dual rol