good afternoon my name is dan paulson i'm with the federal defenders i'm representing mr peterson our st claim in this direct appeal is that the trial court abused its discretion in denying the defense motion for a mistrial  pierson was prosecuted for felon in possession of a firearm based on an assault rifle that was located in the back of a vehicle that he was occupying when police responded to his girlfriend's residence to serve a search warrant i'm sorry to actually  execute an arrest warrant and they later obtained a search warrant for the property for items relating to a burglary investigation now the government in its pretrial trial brief stated that they were going to refrain from indicating that mr peterson had been the subject of a burglary investigation and during a pretrial conference the government stated that they were going to try to sanitize this information to basically state broadly that the reason why officers were in the area and why mr peterson was contacted was because they were doing a follow up on a theft investigation but the government agreed that it would refrain from indicating that mr peterson had been the subject of a burglary investigation and so despite that on the st day of trial i think within the st ten minutes one of the government's witnesses indicated that they were in the area doing a follow up on a burglary and best occasion there was a lot of testimony presented about the officers attempts to attain that search warrant the process by which they obtained the search warrant and then later on there were references made to mr peterson being placed in custody and transported from the scene charges again just because of the number of police officers who on the scene the fact that there was a lengthy discussion about the search warrant application process and again you're you're in memory motion was predicated upon  t you wanted to let the jury know that one george was dismissed or something like that right yeah the defense made a number of attempts to try to minimize the prejudice because testify broadly that they had been there for a theft investigation but what we are saying is that the cumulative effect of all these references again to burglary to the fact that mr peterson was placed in custody had the effect i think of helping the jur consideration of the evidence in a way that unfairly benefit of the government try being a fair amount of knowledge to the jury of procedure i mean that my suspicion is the custody thing hyland by them i mean the of the police were there they knew that he ended up being arrested whether they focused on when he was arrested or the fact that it would have been proper to arrest him at that point unless they had something else i mean there was nothing in the trial that went into subject of concern the alaska legislature recently repealed a number of criminal sentencing reforms because of concerns that it was too lenient for people who are charge of property based offenses so burglary carries a certain kind of message i think with alaska juries but in any event we would say that you know this was a case in which the defendant testified this is a case where his credibility was at issue certainly if the jury was under the impression that he had been charged prosecuted for burglary that obviously carries weight as to his credibility and obviously the specter of mr peterson having outstanding criminal charges or having criminal history is obviously carries a risk that the jury is going to have a pretty good reasons to not believe this time well and i'll talk about that when we talk about the obstruction of justice and huntsman but ultimately this was a case where mr peters its credibility was on the line and again the the message that i think that was sent to the jury was that you should believe mr peterson for any number of reasons but certainly the fact that he was prosecuted for burglary tipped the balance i think for the government's arguments and just to be clear were i think the fent i'm sorry the government made some arguments that we may have forfeited or objection but just to be clear we are arguing  failing to do an inquiry a follow up inquiry with juror number three that's because midway through trial it came to the attention of the court that one of the jurors who had stated that she was good friends with an assistant u s attorney later in the middle of the while they were there was some bad weather and she needed apparently to make arrangements for her child or children who couldn't go to school and she contacted the household of that u s attorney assist s attorney she said in the word year that she was friends yeah yeah this is no news well i think there is all of a friend about this sort of stuff all the time that's what friends do sure enough but i think there's a material difference between saying on the one hand i'm good friends with somebody on the other hand i rely on them to look after my kids are helping raise my kids i think there's a difference in kind i don't think helping raise will happen but pick up and drop off pick up drop off and i think maybe even babysitting and that's the other question that's the other issue that we have here is if i would actually submit that the fact that we raised for cause challenge to that juror i think is sufficient to preserve the issue and we would say that even under plane air review the court was obligated to do a follow up inquiry just because  case unfortunately that states that in so many ways that it's not necessary for the defense to exhaust as your time is running i speak only for myself but i think your rd argument when you haven't got to is that is is the one that has any  to so we're saying that this situation that we're dealing with with the obstruction of justice and hansen is basically identical to what this court confronted in castro ponce and that's a case where the court said that i find that the defendant testified falsely is that the the court made very deliberate findings she stated that she believed that mr peterson had influenced his girlfriend to testify falsely then any of in the absence of materiality findings that's a question for the district court to make in the st instance the case law is very clear on that reviewing court to make a finding on the issue materiality and again the district court's decision and hansing senses for obstruction of justice must be reminded that when i ask you what you have responded to is there was a reason for being persnickety in that context which was so as not to discourage people from testifying in their own behalf let's back mr peterson's own testimony out of here there was still another basis for the obstruction that what you're saying right right and i still don't think she made findings as to and i'll just put it this way the government's argument throughout was that mr peterson induced or influenced mr arden to testify falsely but ultimately i'm not from carry out is the opposite could they have a lot right and i'm saying that i don't think they necessarily relied on the government's arguments that mr peterson you know was falsifying or lying about the circumstances of how the gun ended up in the vehicle i think the jury could have said we don't care about how the gun ended up in the vehicle mr peterson came into possession of the firearm at that point and then convict him on that basis that when we when the government we've taken you will give you a little time to respond court was clearly erroneous in finding and here i think she did tag all of the the elements he said he willfully obstructed justice obviously related to the charged offense here which i think covers that this wasn't those factors right and i think the record shows she did address all those factors she said it obviously relates the charge of the fence here she is obviously a reference to the testimony about the gun because she's talking about the jail calls  well i mean i mean she didn't find materiality and finding is finding relevance and a substitute finding materiality well i don't know that she said relevance i think when she made the statement that it obviously related to the charge of the fence here that's her materiality finding i mean when you say the way to get fancy relates to the elements of this charge and really the only element dispute was that he possessed the gun something could relate to it and not the material is there in the case that says something like this  a decision of the lower court based on any support in the record and here i think it again is well supported in the record there was a record that would make it apparent that this is a material issue correct again our position is that the judge that's what she was saying when you read the entirety of her comments and the discussion of what she was reviewing when she was making that finding she was making a materiality finding as far as that this testimony related to an essential element at trial again when she's saying that it relates to the charged offense year the only element in dispute was whether he possessed the firearm so she was saying the testimony related to that one element and therefore it's immaterial and again i mean it sounds like this court's concern on whether she said she actually kicked off the alamance you know again i think she i think the record shows she did  heard the obstruction only on peterson's own testimony and not on some foreign perjury or something to that effect that are part of the witness no this record found both she also said  he attempted and i guess succeeded in having his girlfriend testify falsely so those were there were two independent basis he's for that and again if she make any statement with regard to the girlfriend about even the bigger con that you're talking about i think when she was making the finding she was when she said the obvious relates to the charge offense here she was referring to both both the testimony because the core false testimony there was that he had no idea about the guy kind of theme that they're trying to run away with was that he had no idea it just got put in the back this car in order to be transported to her own color her grandfather's house or someone of that nature and that question about the girlfriend what think the jail calls alone would have been potentially enough but obviously with her actually going in and then testifying falsely she actually completed the perjury process so again our position is that  guess i mean it didn't it wasn't an allegation of misconduct we brought it to the court's attention just because generally disclosure is better than concealment and you know maybe the defendant had a specific reason to request further questioning or he had a case that i wasn't aware of but there wasn't even an allegation that she had done anything wrong she made this known during the school board there there was actually no cause for chat there was no  conduct and this court said and i know it's in slightly different context when this court said that the this record has wide discretion based on the nature of the information that they are provided on what the next steps are what's a little disconcerting is that they're getting the information from the government who got it from her and if she while she was on the phone had said oh you know when this case is going seems to me that the  odd that he didn't ask well i mean it seems that were there was no request to do so and it seemed that if anyone was really concerned they could have made that request initially went he said he found the call itself objectionable therefore accepting the premise of why the call was made so there was no need to further investigate it and then just he said the juror was making faces at him and he didn't like that and i think based on those allegations and the kind of acceptance of what the government said was true there didn't seem to be a ne you know as the court said when addressing some of these issues you know it's a smaller jury pool up here and it's often the people know each other socially not you know in anchorage in smaller communities so if there's not an allegation that she had done something wrong then there's really guess i mean he could have requested additional additional inquiry on that but he didn't again when he said i find the call itself objectionable he accepted that what the premise was true that this was just a call about child care and he was just saying that that is that was self he thought was a problem there was no allegation other than speculation the case was talked about more so than any other of the jurors who were talking to people at the grocery store their family members where the court left off our position is that there's a couple of possible issues here one is that the germy have had contact with a member of the prosecutor's family and talked about the case but more and more i think specifically there might be a situation of implied bias given that the jurors initial statement saying that she was good friends with the prosecutor may not have disclosed the full nature of the relationship to you or you know i did not understand you during your brains that absent this phone call you you would make that you were making a general implied by its claim because of her relationship with the right with the member of the u s attorney's office what we say the fields be brown and we talked about implied we st just what you knew at the time of the original volunteer you have an implicit bias claim and again i think that the phrase good friends is different than saying that i have a familial relationship clear that this is a question for this reporter just we heard you on that point ok thank you thank you very much for your arguments case of united states versus peterson n