i'm going to call the case of united states versus a mr ter ca and you know we've got experience counsel you're familiar with the lighting system and i'm going to enforce it maybe not as harshly as some people but i'm going to enforce it so with that mr herse good morning mayor please the court my name is michael hursey and i'm here for appellate motors there i would like to have reserved five minutes for about i like to start with argument one i think that's one of the more consequential arguments as far as what this court might do to set these things right and argument why basically argue that the government knew or should have know that the information and the reason that's important is that this was a conspiracy charges and there were no seizures of drugs or cash proceeds of drugs from my client so this is the one time in the five month investigation that the government alleges that there was actual cocaine in his hand but i would suggest to the court that when you look at it and the government is presumed to know its case that the evidence even from the government's standpoint so that this transaction tonight take place as far as my client is concerned one of the main reasons we can see that is that this allez event was under surveillance by agents they had followed mr lovell leader of the codefendant that morning and they had my client's auto body shop under surveillance they had agents there and want to raise and even say he could see directly into the auto body shop now they had photos of everyone else that was there but no photos of my client and there was no photo of the actual transfer of the drugs even though the age and say that it was possible for him from his vantage point to see it he said he was not able to take photos because the transaction took place within about three or four seconds and the thing that makes that important in my just be an explanation for why they did not do it another explanation is my client is not there there is a conversation later at five o'clock that day this is again september th two thousand fourteen because the charges were brought in till about three years after these events where my client is talking to mr lovell there and mr lovell there is asking a where are you i'm at this shop and my client so walgreens situation wasn't that five thousand five hundred and eleven pm and the transaction that the agent went on able to take a picture of wasn't that like one hundred and twenty in the afternoon that's according to the government  that's what they argue but as i pointed out in the initial beef and a reply brief the government got days wrong as they had september th listed at one point as a thursday where is actually a of sequence events would be in the government listing of the session number like the call number and the time that that took place so again there's another  that's at eight o'clock that night eight pm this is the same day and my client mr leveler talking again and my client mr i was as i haven't seen you since ten o'clock this morning same day again not saying that he was there at one hundred and twenty with my client and if i can just be real for one second you can be real the lawyer just for a nd who better is going to know if mr lovell there and my client were involved in the drug deal that day a trans transfer those two even you know it might be as good as it gets you know from a from a criminal defendants standpoint and i respect the argument you're making but the jury heard it and there you rejected it it limits our ability to you know adopt your view on appeal yes well keep in mind that this was a conspiracy as one count conspiracy charge that conspiracy charges could still even without this transaction so the reason i say this is important is that this was the only time in the government's whole case and in the whole investigation that there was a alleged hand to guilty of conspiracy because there were other conversations that they could see or could infer a word about drugs why doesn't while doesn't that tire hands even more well because if the government knew or should have know that that transaction did not true and they capitalize on it meaning use it in their opening or closing and that can be seen to have an effect on the jury verdict that denies my client the right to a fair trial what kind of what kind of evidence do you have to show that the government knew or should have known as opposed to you can look at this evidence one of two ways and we think maybe maybe the government thought a different a different thing happened in reality than to ask me the standard here so here's what i think a classic would be you have the smoking gun oh there was a recording that the government didn't know was being recorded oh we know that there really isn't this transaction we're going to do it anyway we do not have that here what we have to travel on who judges that the government is presumed to know is case in and out because they had a five month investigation they review the evidence  they know or should have known by what i just showed you that there was not evidence to show that mr lavalier delivered this to my client they said not have ever posed that in opening statements or closing argument that doesn't mean they can't put on some evidence of that or whatever they have with a civic now it's all these things that i listed and and they're presume to know their case and they shouldn't have been pushing that this one time there's this always hand to hand transaction so we'll with that unless there are any other questions i like to go to the bets and issue quickly the argument number two is hopes of the court looks very seriously at this because bats and it's something that dramatically affects the jury makeup equal protection right to jury trial cetera et cetera et cetera and anga called back the when your person and asked and they conducted further examination of the potential juror defense counsel at that time did not ask him or did not clarify that in fact he was haitian american was there an obligation to do so it would have made it a lot easier for me right now understand right now you didn't have that every time i read that i come on ask him ask but they did not did not but i would suggest to the after the statement was made by both the fence attorney and the government oh you're assuming he's haitian american because of the surname the questions and answers and the court's inquiry travel on that  n i would ask you to use that now because the record does not state that specifically but the parties in the court at that time assume that was the answer and they went for because otherwise the inquiry would not have made sense if you had just been a regular there's no there's no jury questionnaires in the record i didn't see it and no i don't remember there being any then that would have helped as well because there are other cases where this issue comes up and that is a big help but ask you to look at that because american descent was struck by the government everybody kind of chuckles because you can kind of see what's going on there you don't have to be a rocket science to see that we would i would ask the court to apply that type of commonsense to this  decision on the bets and thank you thank please the court jason wu in behalf of the united states with nick counsel table as jonathan kobrin ski with whom i tried the case in the district court the government wholeheartedly agrees that every defendant is entitled to a trial free of racial discrimination and perjured or willfully false testimony and that's exactly what mr tersely are received here a fair trial and his claims to the contrary are unsupported by the record and i think a perfect example is the st claim that he raised today which is a gig leo or  brady style claim that the government utilized perjured testimony in its case one of the panel members asked about the standard of review here and i do think that's very important because mr did not raise this claim below either during the trial or in the form of a motion for new trial this claim is reviewed for plain error and this goes to the question there the point that judge grant was making which is it seems like there are two different views of the evidence here is a view that was adopted by the government and accepted by the jury when they found the defendant guilty and there's a view that's essentially a jury argument reiterated by the defendant here which is that you can't trust the government witness detective billows and that this transaction didn't happen but just merely giving a jury argument on appeal does not demonstrate plain error certainly does not demonstrate that it's plain clear as day that this offer officer perjured himself and taking a step back just looking at the overall body of evidence we have in the case it strongly supports and corroborates the officers testimony the z is place to look for this is government's exhibit sixteen a that's a demonstrative timeline that we use the trial and it's helpful because it cites some of the other evidence in the record and in particular the timeline of september th is important because it shows a pretty clear shift in the conversations between mr sea air and his main coconspirator and supplier mr lovell here so the beginning of the day and throughout the early half of the day mr tur sierra keeps calling mr livelier and pressuring him for a delivery of one point around noon he even says he has people who are about to kill him because they've been here yesterday in other words he has customers waiting and lovelier replies that his source which is mr  witness at trial gave me the two this morning and our interpretation of that and what the jury apparently endorses that was two kilograms of cocaine now as this pressure continues eventually lovelier tells that he's going to leave in about fifteen minutes and indeed our surveillance team verifies that about twenty minutes later leveler does leave his home and goes to mr percy as body shop after that point if you look at the contents of the phone calls the dynamic completely flips between the two men instead of tersely or pressuring while the lear is a lava leer who is calling tourists here and pressuring him for payment he calls him repeatedly trying to schedule another meeting later in the day asking for money he says just give me the people's money why are you guys taking so long and sensually i gave you these affectively implicitly saying i gave you the drugs already now i'm expecting my payment and significantly at eight forty seven pm this is intercept six hundred and twenty three he even asked her theory about his progress on some project you all finish and turns their replies on one the other one in a little bit and a lot of their conversations later seem to center around two things that terse here has a problem with one of those things which is that under weight it weighs less than he expected so the overall sequence of those conversations is crystal clear that before one thousand two hundred and forty five tourists here is waiting on a delivery of two items from level air and then around after that you know this is of course three years later he did not remember whether on that day there was a payment made or whether it was drugs but he agreed that he had met with the air and he testified that as to the specific conversations play for him he agreed they were about a cocaine transaction so in other words he identified like when they were talking about two he said at trial this is about two kilograms of cocaine and when a little subsequent conversations are about payment and about one dollar of the items being underweight being nine hundred and forty five dollars he testified that meant going the batson issue again standard review here is very important this claim is reviewed for clear error because a batson challenge is ultimately resolved by a finding a factual finding by the district court that the government did not act out of discriminatory intent and so here was a student i believe and maybe correct me if i'm if i'm wrong but i thought that prior to that challenge there was also another person who was a student who was going to be in finals and that person was also stricken from the the the jury panel i i actually do not believe that's correct my impression was this was the only student on the panel so earlier in the in the ward year around  pages thirty nine dollars to forty dollars the judge asks a juror who is this juror number seventeen about his class schedule and about whether he can accommodate it and that's at the point when we you know that's the only point in the record where student is identified that is this  who we ended up striking who is the subject of the bateson challenge juror number seventeen you know from my standpoint it seems like to me the defendant made a promise they say case you know is as bet's and requires and then  in turn the government you know offered this race neutral reason for striking but it seemed like to me the rd step never happened because that requires the the trial court to determine whether the person challenge in th strike purposeful discrimination i mean i guess we assume that the court decided that hadn't happened but there was really no finding was there i mean it just seemed to drop off right after the  you disagree i do disagree with that your honor and so the sequence of events is that after the government at step two offered our explanation which was our reason for striking the juror the judge said ok in that case let's bring the juror and let's ask them a few more questions to me that's step three that's saying i'm going to give another opportunity for the defense counsel to mean that the presentation of the evidence is all that needs to happen when the isn't or stand the rule it says the trial haitian american relying solely on the surname assumption or hear a stick and secondly there was no attempt to question other jurors or identify the ethnicity of other jurors and our belief is using that same last name here a stick of course there were probably other on the jury but at the conclusion of that the district court said and i'll quote it i do find the government has provided sufficient reason to exercise a peremptory with regard to this juror number seventeen and has provided a race neutral reason and to me that goes beyond just saying government you've satisfied step two this is after there's been a complete opportunity to make a record we might part ways on that i mean all of us do is say she has to do is say government has shown a nondiscriminatory reason for the strike and that ends the batson but it's more than that it's the word sufficient because to me sufficient means this is a good enough reason it's a reason that's appropriate under the law i don't think of a reason that conceals or mask use going to tory's at the trial court required the district court required to do anything more than magic words i mean do they have to articulate findings of fact as to why that there is they find that there is not a i find there's a supportable reason which to me is very similar to judge also nagan this case saying that there was a sufficient reason for the strike in other words a reason that's acceptable under law a nondiscriminatory reason which we had offered to  moreover even just looking at the record and looking at all the factors that might bear upon a finding of discriminatory discriminatory intent this case is about the farthest thing from a legitimate pass and challenge that i could find and i cited the flowers case in our supplemental authority just because it had that helpful bullet point list of the factors and i'm happy to run through some of them but for instance number one i mean these are all familiar to the court but number one is what the flowers court called a statistical evidence or a pattern of strikes here this is only one strike so already there's no pattern but moreover we have multiple other jurors who fit the same criteria meaning that they're african american in your position that the government did in fact strike somebody for discriminatory reasons but if they only d once then there's no bouts of bile no no i'm going to a different point now you're on i'm going to circumstantial evidence of discriminatory intent obviously of the government strikes a single person but in fact harbors the intent as in permissible under besson i'm saying when we're looking at this question when the district court is trying to determine did the government act out of discriminatory intent the existence of a pattern is highly probative and at the district court didn't say whether she considered that but the pattern is apparent in the record i would argue because there are other jurors who bear the exact same characteristics as the stricken juror in other words there are african americans with french last names there are two jurors that we reached before this point and i won't say their full names in court but one was named riviere and the other was named breville who are both also identified as african final exams and then also an exit exam and so he is stricken or she is stricken i don't know who that your was that also a student oh i see so i thought we're talking about the peremptory is whether another peremptory had been used on a student yes that was someone later in the sequence but was struck in before for cause reasons in other words because they had a clear scheduling conflict ok this juror we did not attempt a strike for cause because they had not claimed that they had a scheduling conflict we were just merely concerned about the the youth and inexperience of that particular juror thank you we're going through briefly some of the other factors again if we look at side by side comparisons there's no other student you know ideally i think what they would show to prove discriminatory intent in their view of the case would be if they could find another student who was white or non haitian no such didn't exist on the panel who was allowed to remain on the jury other factors that are relevant of course are the fact that the government left strikes on the table i think this is a big one so we used three strikes to get to the twelve jurors who sat on the pettit jury and ultimately determined this case if we had been so determined to strike people that might have been haitian based on a last name or something as simple as that we easily could have stricken other jurors including jurors number four and nine who sat in this case who had the exact same characteristics african americans with french last names if there are no further questions on this issue the government respectfully ask that this court on both issues and affirm his convictions and sentence thank you thank you law strongly says yes and when you go back and caucus on this case please keep this in mind because we're having so many problems with step three at the trial level and i think a trial judge has appreciated this a little bit more we have a bit more participation by when you when you say case law early says yes can you tell me what cases you're referring to because i i agree that from the chopped the trial judge might like to protect themselves by saying and now under a t w a t or the court there noted that the when the just merely repeats the proponents reason for exercising the strike the judge has not satisfied the the justice basically repeats or you know the government gave good reasons what she could have done was to say ok here is what the government has done in this case here's what i perceive as whether or not this person is he's an american here's because if those two jurors who sat on the panel are african americans with french last names why should we not presume that they are haitian americans because the record is silent on those dispute on that but they also did not say oh and they might be of hasten descent compress that with juror number seventeen the one that said issue here where there is a comment on the record silence of the record on the other three or four we just don't know maybe they were maybe they want because there are some black people who have friends last names that are not of haitian descent isn't that isn't that same they did not ask but the question and answer from the defense and the government were such that both parties and the court travelled on that area after those comments and that's the difference between juror number seventeen and the other three or four where there was no mention or no question but these are the court or either party of their hasten descent or not and remember this is important because there were haitian creole transcripts idioms the culture there and that has a dramatic impact on how this trial is perceived obviously about the public so with that i would ask that you reverse and either remand for a new trial or at least for a new sentencing hearing thank you thank you always nice to see you both