rebuttal i am also going to try the feat of discussing two issues in this oral argument and the reason i think that that can be done because on one of them the government has conceded error and that is the issue of whether this case should be remanded for a reset and saying they've agreed that it should end there they have conceded that but they've chipped away a little bit of it and they want to retain the what is it the purity as opposed to the right it's to enter crawl to do that that and i am going to ask them when they come because i've been a trial judge and so when you go back and you do something and you look at a ra and then you have to figure out what you can do it if you're talking about the same drugs and you're analyzing the whole thing it would get kind of complicated say well no this is off limits this is on limits and so yes which is that it should be remanded on an entirely open record so unless are any further questions on that issue the only other thing i would say is if the court of were inclined to close any part of it then it should close all of it but it u nless the court is inclined to do that i would ask that it be an entirely open record the main issue that i would like to discuss here is the inappropriate admission of my client's prior arrest in los angeles two years proceeding this time versus the the unfair prejudicial effect and can we substitute our judgment on how that's weighed well you can look at it for an abuse of discretion and i believe that that's clear here for a couple of reasons st of all just the probative value is extremely small in this case because what the government is saying that this was probative of is the defendant's knowledge of obscure  of drugs in money that's not too obscure item in those two things seem to go together certainly but i think it's not rocket science to middle a deal between two different parties and the thing that they argued that it was probative of is that the defendant wanted to keep the drugs away from the money  that is not really tied to the los angeles arrest it doesn't make any sense from the los angeles arrests there were probably no drugs at all in the los angeles case in the los angeles case the client was only arrested he was not convicted his name never came up during the wiretaps there were two other men who left the room so the evidence from los angeles case is extremely minimal so you've got a very tiny bit probative value here as compared to the overwhelming unfair prejudice of the the danger that this will be used as character evidence by the jury and  it sort of allowed the government to get out of contested what your client contested knowledge right no that isn't that was not said an element of the crime so i mean the government proffered the evidence because they said it showed that realize had gained specialized knowledge from this two thousand and ten arrest that money and drugs should not be in the same place which is private of of his knowledge of his involvement in the charge conspiracy so he was contesting something there and i think the best way to characterize what he was contesting was that the evidence from the government was insufficient because the witnesses that they had were for lack of a better word pretty terrible people they were a multiple murderer money and as i said there's no indication that he learned any of that from the los angeles case you know you got to remember that the money in that case was under a nightstand so we don't even know that he knew it was there that we don't know that he even knew it was there it wasn't necessarily visible or at least there's no evidence that it was so there's no way that you can there's no nexus between the two to say well i use this knowledge that i got in los angeles in this case and i think that's where we reached the abuse of discretion in this case because you got the statement by the judge that she said she understood that mr olson was talking to his co defendants prior to this arrest about lessons  learned and how he would behave differently going forward well that's just not anywhere in the record something governs pleadings it certainly wasn't in the government's proof at trial and so that's that's an incorrect presumption and i can see where she got this from because the government seemed to be so vociferous in saying well see he learned this in los angeles this is where he got it from but we don't know that let's say you went on that you still have to show that it prejudicial airgas and that goes to the the way to the abbot that close to what the the rest of the evidence was here and if i'm not mistaken here this was what sixteen people or something and we're down to the last two is that and so some of the st to deal st disc we'll get the details some of them came in against you and mr hamilton right that's correct so we have  people testifying and then he's in a room that's got seventy five thousand dollars and else so fine if you talk about the strength of the evidence well and what we say and i've spelled out more full in our briefs but what you've got here's a situation where yes there were wiretaps but no mr also never said anything about doing drug deals now maybe they're talking in coded language yes there were meetings between these people and there never  surveillance of these no drug dealers ever seen on the so what you need to put this all together what the government needed was to have these other witnesses say this is what we're talking about on the wiretap this is what we're talking about are what we did at these meetings and the problem that the government had was that the character of these people they just were not believable for you know surprisingly mother teresa doesn't deal drugs so generally the type of people that are involved in a good morning good morning or others may please the court set up file for mr hamilton i too am going to try to address two issues the severance issue and the issue of the jury question related to coach and i'm going to start with the st issue though based on about three or four weeks ago so i've had the opportunity to review the entire record and the natural counsel basically set the judge up by saying oh we don't have anything further and so the judge didn't do anything further no because actually what happened was they came back into the courtroom and additional issues arose and with respect to government's allegation that it was invited error there has to be a known right st i cannot find a case that addressed the precise set of issues that arose in this case the prosecutor was a pretty smart here because the prosecutor obviously lost a little sleep after this and then came back before the jury went out and said oh make sure to tell that juror that he or she can discuss in the jury room that they thought there was some coaching or what they think that they saw so it's not as if and if people are you know their observations so it's not that the jury prop that what that person was beneficial to the defense and that's why no one asked that person to be removed because that person saw faces being made  allegedly and that the prosecutor was trying to coach and winks and this that and the other which would tend to discredit the prosecution witnesses so it when i look at the record having been a former trial lawyer and a former trial judge i'm thinking to myself yeah you question it you look into it and no one watches you do anything else and the prosecutor comes back and i thought that was a good suggestion let the jury talk to the other jurors about it if they think that that's how you evaluate credibility so that takes a little you know and that would be a good defense witness to maybe but the problem that i see is that you have something that may have affected the integrity of the proceedings because you had a prosecutor that was  clearly noticed by at least one juror but was never explored was the extent to which number one other jurors may have noticed it and the extent to which the actual witness may have said yes i was being told what to do and this isn't just potentially an issue of behind on the court made it ascertain that they couldn't see what they said they were seen the court didn't see anything but but this person was still you know it we don't know what the jurors discussed but other people could have said yeah i saw that same thing and i really like it but i still think that the defendant's guilty but your honor touched on precisely what i believe is the primary issue we don't know who else saw it because the court never conducted any kind of word dear the court never questioned any of the other witnesses turman who may have seen something but when but we're not there now but judges aren't you know where some potted plants and judges don't like to interfere with that and when you do something and he asked the lawyers anything else you want me to do and they say no that's great and i absolutely agree with you experian with someone's case i mean you know the same as always hey judge if you're going to try my case don't lose that for me and so you have to be respectful of the trial strategy without question  and i absolutely agree with your honor with respect to that however in this case what distinguishes this from most circumstances is the potential for it having had an impact on the integrity of the proceed ok when you're dealing with a situation like that it is incumbent upon the court to explore in more detail to question the court i think a parallel can be drawn to improper contact with a juror by a rd party where if there is as if there's an issue of a of a substantial impropriety the presumption then becomes that there's something the government has to show there is no harm and it's incumbent upon the court to inquire about that i think the case that explores that is a recent decision from this court called park we should pal and i think a parallel can be drawn to that in this instance now very briefly i'd like to also touch on the severance issue counsel yes before i go on if i could inject a question please on this last issue you're raising to show in light of other evidence i don't believe it's a structural error in that sense i think as i said the analogy to improper juror contact is apt i think that once it's shown that there is something substantially improper which i believe was pretty clear in this case it then becomes a strong burden a heavy burden on the government to show that there is no harm from the error thank you counsel now briefly on the severance issue one point that i do want to raise because i don't think it was clear in the briefing is that originally with the sixteen defendants there was proper joinder under rule eight however once all of these other defendants were removed and we were down to just mr and mr hamilton these two particular defendants had no commonality whatsoever in the series of transactions that they were involved in and i think that bears out when you look at the fact that of the witnesses that testified seven of the witnesses only related to mr well as had nothing to do with mr hamilton five witnesses only related to mr hamilton and had nothing to do with mr well us and of the remaining witnesses all of them were categorized were during the testimony there were clear indications by the state ok now we're going to talk about mr wells ok now we're going to talk about mr hamilton they essentially conducted two separate trials during the course of the proceedings and that's a pretty clear indication that the should not have been tried together and what's troubling about that is that you have a situation where mr hamilton was accused only of selling marijuana or being involved in marijuana sales and mr well this was accused of being involved in meth sales and without question there is a very serious and substantial stigma associated with meth that does not exist with marijuana which has become so de stigmatise nowadays that there's a massive movement across the entire country to legalize it in fact at this time most many many states have legalized it the states that haven't have decriminalized the url on medical marijuana in fact right now our state of arizona is the only state remaining the treats st time possession as a felony so that stigma created a really serious problem for mr hamilton such that at the time that the motion was renewed at the close of evidence the trial court would have been well served in allowing it to go forward to the jury for mr well us but removing mr hamilton for the case for retrial and i see him getting close to my two minute mike so you want to yes thank you  two week trial during which four coconspirators in this drug case who had previously pleaded guilty testified that they personally participated in drug transactions with these defendants their testimony was supported by extensive wiretap evidence surveillance of events bank records and various other pieces of evidence that really amounted to an overwhelming amount of evidence here if if the district court committed any error in the trial and they've raised here we don't think that the district court did it would have been harmless either cumulatively or considered singly just because of that huge weight of the evidence i want to quickly address the sentencing issue that mr riehl ellis raised callahan also had a question about that we agree that the here should be on an open record and our our characterization in the answering brief was going to what we perceived as a suggestion that the  should be limited on the purity issue or that the district court had somehow gotten the purity issue wrong we believe that the district court got the purity issue right under the clear weight of authority in place so you basically what a grade that it would be really hard to do or e mail and say you're stuck with this finding or if you're going to talk about the drugs talk about the drugs and absolutely honor and what we were doing essentially was responding to the defense characterization recognizing that likely we might be in the same position again in terms of the purity question if the district court does come back and decide that question again in the defense raises that it could benefit the district court to have some guidance on that issue but we agree that segmenting out certain parts of you can't look at this you can't decide this is not the way to go in to remain and i think the district court needs on purity well we think that the district court did get it right but obviously mr ellis thinks that the district court didn't get it right in terms of the methodology that the district court used in saying that there wasn't sufficient evidence of these other and these other drug transactions and that these couldn't be used to determine purity well but see i guess what i was concerned about let's take a just a carcass back and here are some other things and then decide i don't think i got this quite right the way that i did it before if you go out and open a record the district court can do what the district court wants to do if we make some kind of findings that could then become law of the case even if the district court thought he or she was wrong on something then you're really sort of you know it's very confusing to address it's very confusing to a lower court when you just were just go back just do it your honor we are fine with go back and just do it that is perfectly fine with us and i understand where that could be more confusing and i also wanted to get to the juror question  question and the coaching and the standard so even setting aside any question there was no prosecutorial misconduct in this case it wasn't raised as an issue of prosecutorial misconduct in the district court we have a very strong invited error argument on this record before the district court but even setting all of that aside this court has consistently held and the supreme court held in gathers that it is not appropriate to reverse on this ground this is not structural error as counsel appropriately conceded cross examination and argument are the primary ways of addressing this and in this case the cross examination the juror questions arose in the middle of the cross examination of this witness so counsel had the ability should he have wished you to ask more questions about the witness proper coaching or anything else as he went forward on cross examination and he had the ability and in fact did raise in closing argument the suggestion that the witness had been coached your honor you're exactly right that this is something that prejudiced the government not the defense as the government clearly stated it a c r nine hundred and twenty four in saying the government would like for the juror to be removed and the defense one of the juror to be kept on the jury in fact it appears he may have had a little bit of an outsized role because journal birth thirteen became before person and was clearly able to share these views with the jury based on what happened with the rest of the jury based on what happened at the at the trial court at the end of the trial if there are no other questions on that i can get to the for oh for the admission the defendant in this case  saying that he was not part of the conspiracy meets the th circuit standard under my ends for the government to have to prove up each and every element of the case including intent and knowledge so in saying i didn't know what was happening on the c air conditioning phone calls these were legitimately calls about air conditioning he was contesting knowledge despite what he may be saying now this was a knowledge question and so the district court conducted a very careful for all three balancing analysis she le in some parts she didn't lead in other parts she did exactly what this court case law instructed her to do in that matter so we would ask on all grounds here that the convictions be affirmed and that just mr realises sentencing be reminded f e government's argument about this being an overwhelming case and so therefore any error was was harmless doesn't make sense when you see what happened here  would refer this court to the valve edges case and you're i'm sure you're familiar with that but that is one where the gentleman had a similar act he was not convicted of that act and this court talks about how harmful that kind of evidence is to the defendant so yes there was a lot of testimony about a lot of things that happened but the only thing that connected that testimony up to mr rule alice was the testimony of these clients are i'm sorry these co defendants who are pointing the finger at him to save their own skin and the people who are making these claims are really some detestable folks the jury could find a lack of believability for those people but this evidence cuts through that like a hot knife through butter it says look this guy's done it before and he's doing it again and so because of that the error was extremely prejudicial to the defense and for that reason the case honors briefly on a couple of issues st again with the weight of the evidence all built on that with respect to mr hamilton the evidence was fairly scant it really came down to one witness and that one witness was one lamas and with respect to mr lamas he was the precise witness that was on the stand when this alleged nodding occurred i will note that mr hamilton was deprived of the opportunity to explore this further going forward because the court specifically said that it did not believe that there needed to be any action going forward that it knew that counsel was professional the government attorney actually made statements with this particular val's and said it may have been nodding but if any nodding was occurring  unconscious mr hamilton never got the opportunity to question the government or the veracity of the government attorney statements through cross examination so mr hamilton was deprived of an opportunity to explore that that actually gets worse when you consider the instructions given to the jury instructions given to the jury specifically noted what the jury couldn't could not consider is that it's had jack had those terrible instructions that were given to the jury i don't believe there was an objection on the on the instructions no south someone didn't think they were that terrible i guess i'm not saying they were terrible they were standard structures given but the problem that occurs with the instructions is when taken in context with the jurors you because the judge who was on the one hand told that he can talk about this particular issue with the rest of the jury in fact the judge held him back and explained that to him however on the other hand and they were told as far as what they could consider as evidence they didn't that never mention observations in the courtroom the did not ever mention in fact they specifically said you cannot consider quote unquote statements of the prosecutor well if nodding during the course of some of these testimony might be construed as agreement we all know from the o'brian test that no nodding and gestures can be considered conduct f certainly they can be in this context as well that could be construed as agreement with mr lomas as saying so the jurors may have been under the impression that they can't consider this when they're considering their evidence i see my time  and i notice we seem to have some students out there oh ok all right i i would welcome what school you from from wall to oh what was here yesterday all right so we met with will yesterday i'm sorry the judge just won't be able to meet with you today we didn't i didn't know that anyone was coming and we have we have other things that we have to do but if i would also indicate my we have we have our some of our law clerks here if the staff attorney's office while we're conferencing if they want to join in we obviously can't talk about the cases that are here today and the lawyers wouldn't be able to do that but if we were happy to see people coming to court and we appreciate  that that you have the interest to do that and watch watch the rd branch of government as it's doing its job and and the justice system so thank you for joining us  luck i know a lot of you are seniors and you're all applying for college right now so i hope you get your st choice how's that and some of us probably want you to go to missouri  think judge gold would have you go to it would be chicago you know what was your undergraduate pen and i would have to go to stanford so and i don't know who all the other lawyers went but i'm sure where ever you decide