one instance in discharging a jury and in two instances in maintaining or allowing the juror to continue with respect to discharging the juror during the deliberations a jury did not appear when the court finally reached the jury the juror the juror explained that she woke up late was not feeling well and was dizzy and discussing the matter with counsel the court said basically that it had three choices either to hold a mistrial excuse the juror discharge the juror leaving only eleven jurors to deliberate or wait one day the defendant sought either a mistrial or was willing to wait the one day however i have to further discussions the court determined that it would discharge the juror and it is the defendant's position this was error losing the jury was the reason that the court gave for discharging this one juror and quite frankly it's our position that was in essence speculative  notably it was also inconsistent with the court's determination in parallel issues of keeping a juror early on in the case and i'll get into that a little later the court's view that the juror which they turned juror number eleven may not be able to or was uncertain if they would be able to deliberate the next day does not rise to the level of good cause or just cause there is there is a point i think in the trajectory of when these determinations that ma that would fall below the threshold but the government's argument is that there really shouldn't be a threshold that there should be discretion full discretion in the court to determine when a jury should be discharged however there ought to be some threshold below which no reasonable jurist would act to discharge a juror and it's our position that simply saying that one is does the without further information as to whether or not the juror could continue the next day was something that fell below that threshold in this court's decision in simmons is distinguishable because court said the district court was not required to conduct a further inquiry only because there was clearly a another juror who they believed would be absent and they would definitely lose that a juror but in this case there was no real basis to believe that other jurors were going to drop out or have any for the difficulties if they had waited the one day and we don't know because the records not clear as to what happened with that other jerk there was certainly no other discussion with that juror's far as the record indicates as to whether or not they could appear the next day or what their situation was even later on in the day there was no risk of as i indicated of an absence of another jury and that it's our position that the court exercise of discretion in this particular case was not prudent the government accuses the defense of being inconsistent having an inconsistent argument and that the defense has raised the issue of the pregnant juror that now claims no risk to the jury however i don't believe that those two arguments are inconsistent in fact the juror was already se the the pregnant juror which we'll discuss a little later and there was no indication that she was going to leave at the late date where during the deliberation process  the government in fact it's our position is being inconsistent in that it or abused that the pregnant sure it could serve but now argue that she was at risk of being lost it was really no imminent threat that the jury would fall apart at the time of the deliberations and therefore it's our position that the court should have waited the additional day to determine whether or not the juror number eleven continue moving on to the two jurors that the court heard in not discharging that being the pregnant juror and the sleeping j certainly when the court observed that the juror was sleeping the it was clear to the to the judge not only that he was nodding off at one point but he had continued to exhibit this kind of behavior later on in the trial the pregnant juror was clearly upset and in distress at the commencement of the proceedings and gave the court every indication that she really did not believe that she could properly serve instead of releasing either of these jurors or discharging them t as to the pregnant sure try to accommodate the needs of the juror and refuse to replace her but the government argues that this waived the defendant's objection it's our position that clearly the defendant did not waive the objection but found himself in a position where the court made it very clear that it was not going to remove the juror and so when the court suggested certain accommodations of course the defendant would have preferred accommodating the juror not accommodating the juror but certainly did not waive the objection that it raised that the defense attorney raised to really abused its discretion in both discharging that juror that was simply dizzy and not waiting for the extra day and also keeping the jurors certainly the pregnant juror who was asking very much that she not to serve and had a lot of concerns about staying on the juror on the jury as to the rest of the arguments i would rest on my grief thank you very much your honor thank you michele i'm just curious any questions no question thank you that's beyond all yes thank you on the jury during defense counsel said well if you not gonna grant the mistrial we want you to wait till tomorrow determining that the judge must make a decision at that point right now i don't know that the judge had to make a decision at that point i mean i think the judge could have waited i believe it was in one of the other cases that was cited in the brief way that  infected wait they waited to the next day and when when in actuality on the next day there was still a problem then they did discharge the juror so the judge just wait a day the judges have the discretion if a jury says you know i'm busy i don't know when i'm going to be better the judge has to wait a day to see if the jury gets better alleged abuses its discretion well the question is that the judge know that when the jur than someone who's sick and you don't know what the jury says when you call them you've no idea what they're going to feel like the next day and spent i understand exactly what the court is what the court is thinking but in this particular case you it now going into not just an alternate jury this is this took the jury from twelve to eleven which is a really a deprivation of the defendant's right to have a full j exactly the scenario that the deprivation of any right the rule well it does but i think that there has to be a higher threshold i don't i think that you can't simply just rely on the jury saying  today and not even you know wait especially i don't think the government indicated that it didn't want to wait the defense indicated that it would wait and  certainly i think that this this particular set of facts fell below the threshold that this court has ever thought was appropriate for the court to go from a twelve to eleven i know the rule a llows for that but where where do we draw the line do we just say well if if i said i had a headache and i didn't want to come in is that sufficient to deprive the defendant of a full jury even though it's the rule allows for a smaller jury that's not the jury that that necessarily was picked so i would just argue that in this particular case and certainly under this back pattern there has to be some  her absolute beyond the one day that she would not be able to deliberate but the court knew it would be at least that day the juror had indicated to the court that she had broken up late she was not feeling well she was  decision until it could reach or after an hour of continuance to see if the juror could be located or information could be found it was at that point that the court indicated there were these options  determine whether or not there was good cause beyond the simple fact that one juror would be missing one day of use the liberation i think the court acknowledged there was a fairly lengthy task before the jury the jury was going to be deliberating on thirty four counts hundreds of exhibits and after hearing from plenty of witnesses over the course of a three week trial i think the court considered that path before the jury also in the jury and then you had the pregnant juror who i can of the fuss next but who basically told the court the quicker the better i think those were her words she acknowledged that it was uncomfortable being pregnant on the jury but  quicker things moved along the more she likely would be that she would be able to to do her job i think the court also looked at the impact of a pencil mistrial or the impact of losing the jury if they waited that extra day and it was in terms of the time and resources of not just the court but there were a number of victims and particularly vulnerable vulnerable pick victims i think  of their own lives their own job to hear the evidence and to begin to deliberate the court also considered the fact that there would be a significant strain on everyone if the court was required to do it again when i think that it's not simply that there was one secure and no risk elsewhere the court in fact made a fairly clear record that it was considering everything when determining that good if there was good cause to let the i think the court was very much aware of that when it's all of a juror who was crying in the hallway and with the right things over and to determine in front of the parties the reason for not she could continue or should be going to and the court made a very clear observation that the suggestion seemed to be working the pregnant or she was able to make take those accommodations  continue to serve there's no evidence for the little transcript for the rest of the trial that laning will spend then or the government so any thing that would lead them to believe she was not able to do her service and the court also didn't  not being is being somewhat duplicative to the others in that again it was a scheme and some of the evidence may have been reiterated by previous that they all met him on brief that that the defense counsel said that if the that he had chosen the postponement so and if not then he wanted a mistrial and i wanted to bring that to the court's a ttention with respect to the pregnant juror the government wants a court to believe that she was willing to act with the you know continue with the then and the court said to be completely frank if we get under twelve jurors and excuse her the court would have to start all over again so there was certainly this belief by the judge at the time that he was concerned that he was not going to have the requisite number of jurors and made it very clear to her that that he did not want to excuse her and people are not always artful in the way that they ask for things and certainly the jurors sitting before a federal judge in a federal trial asking quite frankly that you know i'm very uncomfortable this is going to be very difficult for me i want to take the time off that i can from work to spend with my other child before i give birth and so on and so forth and she was forwarded in in her pleas to be relieved from her service so  i think that all in all the record is replete with unfortunately an abuse of discretion by the district court in not properly addressing the juror issues