convictions which were potentially coerced by the delivery of multiple alledged charges the improper submission of demonstrative exhibits to the jury's deliberations and racial bullying of minority jury members i'll address the allen charge issue as well as demonstrative exhibits of time permits counsel for appellant robinson will address racial bullying in counsel for appellant floyd will address sentencing and forfeiture issues the validity of an allen charge is evaluated under the totality of the circumstances here this jury was reminded no fewer than five times that it should seek to reach a unanimous verdict and the language of the second four allen charge was modified to include independent comment that the jurors should behave like mature adults under these circumstances that second allen charge is rendered unduly coercive and that's prejudiced mr martin's fundamental right to a fair trial the defendant has the right to rely on the possibility of disagreement by the jury it is making the jury think that it must reach a unanimous decision is plenty of i mean the allen charge was given today has been a crude by multiple courts and i mean so the issue here is not the allen charge itself it seems to me the issue is the number of tabs that was given and indian language that the party probably i don't think the allen charge and sale is really the problem if there is a problem that's correct your honor  been explicitly approved for use by this court however as you know this court has expressed a strong preference that trial judges and here to the language of the six circuit pattern jury instructions when delivering an allen charge in order to avoid the charge having improper coercive effect on the jury and he is there anything about the timing in which the church were given be they the circuit approved church or the modified charge over what period of time with these given him did that impact in any way what you believe to be the thing that room at the the beginning of the charges inappropriate the number of times that this jury was reaching a verdict of five charges over to correct your honor along with the trial the trial was about two weeks long i believe your honor and again the language of that second that modified allen charge significantly departed from the language that this court has expressed a preference for a trial judges to use when giving an allen charge in order to avoid a coercive effect the judge instructed the jury that sorry the judge instructed the jury that if the jurors could not agree that they were not behaving like mature adults it suggested that at some point in your lives had a disagreement and you've been able to behave like mature adults and this comment runs the risk of suggesting to the jury that if they cannot come to an agreement on this on the verdict on the charges in this situation that they are not behaving like mature adults and this was indeed harmful to mr martin and the resulting prejudice year is demonstrated with the speed with which this verdict was rendered after that second allen charge was offered and i think this goes to your honor's question about the timing here where this jury had been deliberating over the course of three days and after that final allen charge was given it took the jury only three hours to reach a verdict and it's also important to note that three hour period after the final allen charge also contained a lunch and so three hours is a maximum amount of time that this jury deliberated after hearing this allen charge it's possible that they may have charges for example and here if the judge commented to the jury that this lawsuit must be decided it must be decided at some time by some jury and the court this court in that case found that this comment in and of itself was an unauthorized extension of the allen charge that was are right or wrong about there that's correct your honor and here is after the judge gave this comment that the lawsuit must be decided the judge then went on to give a much more lengthy instruction which involves several of the elements that are currently contained in the six circuit pattern jury instruction it's important to note though that in that case the court found that in spite of offering these clarifications on the intent of the allen charge that clarification did not hear any prejudicial effect of the judge's earlier comment to give an individual determination to arriving at that decision that's correct your honor the risk here is that by continuously encouraging the jury to reach a unanimous decision it's this thing that the jury must evidence or you know the type of that evidence yes your honor that certainly that certainly the risk and the risk of coercion inherent to an allen charge especially when given under circumstances such as these i the four persons racially charged accusations against the quote colored women and quote reduced injured to tears almost incited physical violence and marginalized the voices of african american jurors based solely on their race race they shared with the defendants in this case they only two african american on the cure their work or any other people of color or other racial miss of the on the jury the record does not so indicate but in the interviews only some of the white jurors are mentioned  now and building upon well established principles that seek to purge racial prejudice from our criminal justice system including tanner batson and others as as an additional failsafe by mandating added precaution for racial bias during deliberations and the district courts failure in this case to afford an evidentiary hearing coupled with its insistence on a unanimous verdict as my co counsel discussed requires a reversal or at the very least  racial bias is explicit and when it implicates the jury's proceedings when it implicates the impartiality of the proceedings and the resulting verdict when it acts as a significant motivating factor in a jersey decision to convict now under the  functional equivalent of a racial slur and that was indicated not only by the reactions of the two african american jurors in this case a r and s but the reactions of the remainder of the jury there was a germ to tears not once but twice throughout deliberations jurors were running out of the room and there were two important instances in which two important aspects in which the four persons bias implicated the verdict which is really the crux of this case not don't know how you get that i mean certainly the account of what happened is not a positive what is forest for person dros concern but i don't know that you can ju from they are to influence on the african american jurors certainly your honor my answer to your question is twofold first this current obviously can't be sure can't jump in chargers mind and decide whether one hundred percent that the verdict was implicated by bias or choir's is doubt and this inquiry must be objective as it was and pena the law already recognizes that people are poor judges of their own personal bias which is why we have the protections we already have in place including bats and tanner the ability to ask questions about racial bias during why gear and the ability to paul the jurors after the verdict when the when the jury was polled after the what was the what was the polling question is this your verdict yes so your position is that if in the deliberations the jurors were coerced to whatever here or join in the position of the minority that they could very well have been responding that this coerced verdict is the way they voted absent your position absolutely your honor and actually this and so and so your position really is that the the racial animus taint that arriving at that verdict that ultimately reported out yes yes absolutely and i'd like to bring to your honor's attention a verdict but the district court judge noticed that two jerseys spoke hesitatingly and with some equivocation and after polling the jurors then individually privately one of the jurors disowned the verdict and a mistrial was declared and this  inquiry for the district court which is why an evidentiary hearing should have been granted in this case perhaps there is more information perhaps there are more comments in this case where where racial bias breaks down deliberations in light of what are we supposed to do about that mr robinson's attorney invalidated a specific court order as well with the wog rules your honor the fact that the explicitly less as it were the state rules of professional ethics and local court rules which limit counsels post trial contact with jurors i'm reading from opinion rodriguez yes and penn also in in penny rodriguez there was no such violation is that true that's true your honor so if if and when the cordon pena rodriguez sounded like they were very careful about creating just an open to challenges to juries based on need anything he said we've we've got we can't turn this into a complete change of the rule that we don't examine jury verdicts and one of the aspects of that is to point out that there are ethics and local rules that will help in that regard now you seem to be reading pena rodriguez to say that all of that is by the boards isn't that a strange would pain you rodriguez effect his analysis of his analysis was to follow to enforce his own local rules when pena rodriguez says this case involves no violation of local his opinion longstanding principles governing inquiries into the validity of jury verdicts and these principles no longer apply but the rules about enforcing ethics in local court rules do apply why isn't that enough i guess that's not enough because the underlying premise of a guess is that an administrative barrier such as an evidentiary role cannot trump a constitutional right to a fair trial if but that's that's what i'm finding trouble seeing in pain you it wasn't the issue there there wasn't a court rule that was violated there and indeed in their opinion they limited it by saying we're not talking about a case where there's a violation of local rules kenya is very broadly written your honor and it talks about purging racial prejudice from the criminal justice system allowing a local corporal and light of the totality of the circumstances here in light of these comments and of disagreeing with the dictum in rodriguez i agree i agree it's dictum i mean they're talking about something that wasn't before them but what they seem to say is that case would be different you're saying oh no even though they said such a case would be different the really important is that that case would that did the court have any ways of dealing with the lawyer because you said in your papers that this sort of undermined the defendant's right to a fair and impartial trial under the sixth amendment that right goes to the defendant up a lawyer right when the right to the fair trial the defendant's right the sixth amendment right not the lawyers and so the court rule here that that the lawyer broke other sanctions for the lawyer that would be up to the district court's discretion your honor but that is an alternative i mean this is a possibility of dealing with that to sanction the lawyer to sanction the lawyer however to grant an evidentiary hearing so as not to deny the defendant's right to a fair trial furthermore the district court should have the opportunity remand to consider whether or not a local court rule is a place of all in light of which i think your time's up and i'm not sure that there are more questions but i will point out that it wasn't just the local rule i mean the court made  see one point one b two and to be one point one which resulted in a fourteen point increase to duck to mr floyd's offense level in this case and also restitution now the government has the burden of proof to prove contested sentencing and handsome factors by a preponderance of the evidence in this case it has failed to prove that they wrap the amount of actual loss to the state of ohio was four hundred twenty thousand nine hundred  dollars it is a longstanding rule of this court that the government bears the burden of proof to prove sentencing enhancements it has held so in fineman in one nine hundred ninety one which in turn cites silverman which cites numerous cases in other circuits which hold that it's the government's burden to prove enhanced ments sentencing enhancements under the guidelines by preponderance of the evidence and more specifically this court held in jones in two thousand and eleven and in watkins in one nine hundred ninety three this court held that the government bears the burden to prove the amount of loss under the guidelines that are political in this very case that is to see to see one one two and two be one point one which are those are at issue in this very case and nevertheless the government contends that the the amount of the contract that if burden shifts to the defendant to prove offset against this loss by proving the fair market value of his services or of the services of global in this case in arriving at this conclusion the government relies on comment three two something guideline to be one to be one point one and the comment to that guideline only provides that if there is  loss which has to be proven by the government the offset the defendant has an opportunity to prove offset by the fair market value of services rendered or property returned before the loss discovered it does not say that the defendant bears the burden of proof to prove any offsets it never switches the burden of proof from the defendant to prove either the amount of loss or an offset against the l moreover this court held and us vs parks two thousand and nine and other cases that the district courts must follow the rule of lenity when faced with ambiguity in sentencing laws thus any ambiguity should be construed in favor of the defendant applying the rule on to here or to comment three to two guideline to be one point one because of the fact that guideline does not use any language which suggests or places the burden on the defen r who has the burden of proof did mr floyd out and looking at his objections to the pre sentence report and i don't have  i don't have the transcript of this of the sentence in front of me but it looks like he is objecting to the total amount of loss but not making the specific argument as to what should be considered in reducing the four hundred twenty thousand dollars is that right or wrong well that's that's not correct he objected first to the p s i i you know  articulate the argument that the value of the service is actually rendered had to be subtracted from the total loss figure that the government had proved to trial he did not specifically say that because he never accepted the proposition as happened in washington that he had a burden to prove an offset the burden is necessary that he have a burden to have articulated that argument but he has to at least let the district court of calculating the laws well the available evidence that in some sense he did that because the available evidence that that comment see allows to be considered at sentencing is evidence at trial and dr floyd actually testified at length he took the stand testified about how he came to evaluate the value of the contract at two hundred sixty five thousand dollars for an annual contract and he also discussed all the work that was performed on that contract which was significant at the the evidence that was presented at trial whether it's the government trying to have a problem with writing but i do think it is important to articulate the alternative basis on which the law should be calculated and you know the district court didn't know what he was looking at then the district court didn't have too much opportunity to capture like logs in the way of mr floyd suggest well the district court only relied on the trial evidence presented by the government of the gross contract amount so it was it was only relying on trust and that question is pretty simple i'm asking you whether mr for he didn't specifically go into you know additions and subtractions in terms of you know but what he apparently based it on was the eleven months worth of services at twenty two thousand dollars a month and i think the court understood that because the court didn't go into trying to have the government establish the lost by proprietors evidence except just looking at what happened at trial i mean both parties have a burden if we're going to put put the whole burden  sentencing to then you know prove their case the loss and then the offset against the loss all of that the the judge is basis was was the trial evidence not any really evidence submitted sentencing just some small amount of argument he just basically used the trial the court record trial court testimony and the gross contract amount which i know you're  the court ken robinson on behalf of the united states in light of the court's questions us morning i'm going to focus on three of the issues in order that they were presented by the appellants the allen charges the juror interviews and the loss calculation to start with the alan charges i'd like to clarify there are some questions on the number of allen charges and a number of comments over the period of time but there were two alan charges given those with a six circuit pattern and instructions they were given on the second and third day of three days of deliberations one there's one additional comment that's separate from those charges that the opponents have raised that was made on the morning of the second day i believe and that's the comment regarding in response to the jury's charge and then there were a number of model you modified charges no we don't think that there is to cut in jury instructions given on days two and three and on the second jury allen charge there was there one additional comment that was not second allen charge was before any of the i believe the second allen charge on the second day was before any of the offensive comments had been made the third or the second allen charge on the third day  am not certain whether it was before or after but there is no indication on the record that the court had knowledge of any of the comments by the jurors and in fact the argument of the defendants here has been that the court should have been notified and when the bailiff when the bailiff intervene to basically quiet things that was that there is a record show that that was brought to the attention of the judge no the record does not show that that was brought to the attention of the judge and court noted that the both of the island charges were model six circuit on charges there is no issue with any of those in which the court was singling out minority jurors and asking viewpoint jurors with a minority viewpoint and asking them to change their view let me go to get one the current good thing because i'm not sure if there's a big difference between in this case between two and five so were there five occasions on which the jurors were brought back into the courtroom and address of the judge whether you stay with the allen charge and i believe there were three occasions i could be wrong on the number but the i think there are three occasions on which there were things said that are in dispute here so the the allen charges were model and they weren't pressuring it was on the second that the three notes came that one tie and one of those was not saddened by the entire jury but only bad two of the jurors including four person and it said how are we to proceed if one or more jury members feel like the jury is intentionally being district court responded by giving the standard cool allen charge but the next da ak when the jury said it didn't think it was going to be able to reach agreement again that was the point at which the district court gave them the charge that included the mature  the one that has the mature adults comment i think it's helpful to focus on the first of these three comments that's the when the jury sent back the question can we just move on to the additional charges without first assigning the conspiracy charge and the judge responded with a explanation that they could consider the charges in any order they wanted to and made the comment that is subject of the briefing here one of them was said because eventually all of these charges need to be decided and in the briefing the parties have taken that one comment slightly out of context both globally and immediately immediately the district court was responding to a question about not about deadlock which is the situation but whether they could move on to discuss the charges without having decided the and the judges response clearly indicates that he's dealing with a sequential issue with says you know it's not my place to tell you the order of the questions or certain amount of sense that in addressing the argue the issues as addressed but i'm not going to tell you how to deliberate you can address them in any order you want to and then he made this one isolated comment about all these issues need to be decided and i think in the context of the question by the jury and the comments by the district court it's clear that he's talking about the order jury had not said we are deadlocked the jury had not said anything along those lines and the district court had not said anything about how to proceed and globally there's a question about how we consider timing it's not appropriate when considering whether there is error to consider how much time proceeded between under the circuit's law how much time proceeded between allen charge in the deliberation over between now and charges it is appropriate to consider in terms of harmless error and it also is important i think to consider in is that a distinction without a difference it is essential that the cases have made the so we could not argue for example that there was no error in the court's  allen charge because they deliberated for a certain amount of time because the length of the error question focuses on what the language is and what the court's instructions were otherwise the prejudice question is separate so it is maybe a distinction without a difference but as the distinction in our core it's case law  the but i do think that the timing question that we the court can consider that's important to consider is the sequence of the comments the eventually decision needs to be reached was made before the two allen interviews first we'll talk about the violation of the local rules and then i'll move on to the substantive claim as this court noted that the interviews were conducted both in violation of local rules and the district court's order  the beginning of deliberations for the close of evidence of the return of the verdict the district court said because the interviews had not any interviews had not been pre approved as required by the local rules did the attorney should not contact the jurors and of course the local rule requires permission before contacting jurors and these are part of a series of protections by this court intended to protect the jurors from harassment and protect the finality of judgment here or the verdict was returned the first week of june the interviews were conducted without leave the court by a private investigator in mid july and the new trial motion was submitted in september two days before sentencing with these publicly filed transcripts that were taken that were recorded without knowledge of the jurors and submitted including their personal information cell phone numbers names et would be appropriate but did not lobby any and you've you've spoken to the mechanisms in place to protect the jurors from harassment from the lawyers what's the protection in place to protect the jurors from to the instructions by the court which the jury is presumed go follow about how to deliberate themselves which encourages them to look at the evidence the year which adversary harassed her or bullet that's what i'm getting how what is the institutional protection they are anything beyond the wording of the instructions unfortunately no is the short answer where there could be protection if the court had been aware of what was going direct and it is within the jurors certainly are able to notify the court that something is going on the court has the power to interview the jury during deliberations they could have sent a question back to the court specifically and so i think that does offer a significant protections and if i guess that you know a situation warranted did the court could instruct the jurors not to have further contact with each other after the close sure but it but the judge had to know about it first sure and i think here the disclosure of the juror information does not help protecting the jurors from each other because that allows them to have access to their information post elaborations good juror consistent with the orders and the rules have made a complaint afterwards to the core gone to the oil or maybe even gone to the lawyer for the defendant yes certainly i think r recognizes that the jurors are certainly permitted to of their own initiative talk about the deliberations of the issue here the first issue here and i think an important one is that here the lawyers did it and so that involves different concerns the jurors are going to the court does nothing to risk their own safety in future trials  but having a lawyer who is willing to look up the jurors and file their information really does and what the other side argue that holding in that case said that if in order to get to an evidentiary hearing if the defendant can show that one of the jurors made racist statements and indicated that there was a nexus with their own vote in that case then it was possible to ignore the new impeachment rule and proceed to an evidentiary hearing on what happened during jury appeal regarding the racist statements by the jurors the claim is that the racist statements by the jury foreperson influenced anything report you don't think that statement that says why can't you women or i find it strange that the two of you are the only two that can't see the defendant i certainly think that's racist well in that you but you don't see that that's come that that is like evidence of a connection to their they're a juror for person's vote be rodriguez announces that explicitly narrow rule there has to be an express  indication and not an implication i think in light of the concerns of invading the district of the jury they stated i think aggressively limited and so i think the question is not here whether that implies a possible influence on their own vote p rodriguez said racist statements alone are not enough and i think that makes it clear here don't you have those statements would be when we're looking at the allen charge i think it would be inappropriate to look at the statements by the jury which is a slightly different bus in the us but i think it's worth noting because the district court did not have any knowledge of the deliberations i think it would be  district court did have knowledge that there was i mean i think if if if i had been a district judge and got a note that basically was if it was not from mary i was basically asking questions about whether another jury juror or jurors were seeking to intentionally hang the jury i think i might have felt that so grow up and work at two differen been mission was appropriate and i'll sort of took it in that in that valley and yes certainly what i meant was that they didn't have any knowledge of the content of the deliberation certainly he knew that they were having trouble coming to a decision but he had no claim and i think it's when you consider the if we were to address that sub simply it be fine to consider the judge's instructions in that context but i don't think that that those comments american jurors voted on a racial bias or the other i guess that's take care of three of them or one of the other nine my understanding is that their argument is that the  i think it's also important because the focus here has been on the substantive claim of racism i think it's important to note not just the procedural violations below and the violations of the local rule but also what the claim was that the district court judge was considering for the new motion i believe it had been argued before although i can't actually i'm not certain about but no comment based no argument raised below based on the racist comments this that their claim is that the racist comments by the four person influenced the votes of the minority jurors if this court is looking at the transcript which we urge it not to i think it's worth noting that the jurors themselves stood by their verdict and indicated that the comments had not influenced their vote so to the extent that can rodriguez allows this court to ignore the no impeachment rule and procedure not entry hearing i'm having a problem  through this there's nothing else that would allow this court certainly i think cases involving the violation of local rules and the importance of the finality of the verdict and protection of the jurors are important in terms of the substantive  claim you can look at if to the extent that they're still raising the external influence claim below you can certainly look at external influence claims because those that's one way of jumping through the no impeachment rule and the only other way that is relevant here conclude my argument here unless the court has further questions because there was some questions from the court on what was argued below i'd like to clarify that in the united states sentencing memo below it indicated because global services were it was appropriate to use the entire amount that they received as the last figure here district court didn't rely on that the district court did not make an express finding on that in their final comments to the defendant it did indicate that it thought the purpose of this was to was a sham so i didn't make an express ruling on that you're right but i think it's clear from the record of what it would have been and i don't think there's anything that required it to make an express finding on that basis why not make it certainly is required to announce it's going to decline to reduce the loss for or services given the i mean there were there were some people who were who were actually on site doing clerical work and getting a two thousand dollars a month or whatever it was right i mean that was the only being there that included in what's being treated as a loss you would think that that should be reduced the by cause and effect of coconspirator and so at the sentencing hearing the district court judge addressed that argument and made a last finding so they addressed all the specific arguments raised by the defendants which is their obligation and certainly they're obligated to me to announce their finding on loss which they did here but they weren't obligated to address an argument that was not made the argument you're saying that the argument that was raised below add to do with apportioning among the it's not necessary to make any subtraction for services provided and here we have testimony from mr ward indicating that they only form global to facilitate the scheme we had the comments by the district court at the end of sort of had that purpose still provided some services there was evidence that service in the trial that there were services provided by they could have but the cases in this circuit indicate that if they provide some services but the purpose of the service is a cover for it they're sham organization you don't need to subtract those and here that is what happened in addition the court didn't make any findings on that because the argument was not formulated that now the argument was not formulated but i there were no sir their services that they included over the figures that they pointed to were not included in the proper form there's some discussion of the salaries of two employees and the figure that represents the amount of students who were recruited to the school by mr ward the proper figure if there had been an argument below which there was not would have been the fair market value of the services not how much they were paid it doesn't really matter what they were paid what matters is what they were worth similarly the dollar value of the students is not the appropriate valid recruit it was not the appropriate value it's the fair market value of the salary of the man who recruited the students here the district court said at the end of sentencing the only reason you're recruiting students was to get more money to line your pockets some of these i understand that but some of what there were is vague memory from  important question i think here the fact that they paid people they were just in an office they were doing a lot of paperwork it's unclear what they were doing they did not have this school ever actually operate the school operated yes but so for the period of the year in which this conspiracy was going on at the beginning of the year was operational and teachers were getting paid by the end of the year teachers were not getting paid their health insurance was not paid for their was in significant debt and they weren't able to pay all the other vendors even though global was getting half a million dollars and within about another year then the school went under government theory is that even though there were powerpoint presentations even though there were employees who were paid to be in the building that all that was just window dressing cover up the fact that they were getting money and all that stuff is worthless that is correct and i think it's important to know that we were not charging a services not rendered case but beyond that the only services that were good were the paid employee salaries of the two employees and two teacher training sessions of the teachers that's it for a year and a half million dollars that's not argue that was not argue that's correct u court has any further questions i don't think so thank you that there were two allen charges this is incorrect there were five this court has expressed a strong preference outside any language that comes outside of the traditional jury instruction this is a totality of the circumstances analysis you are three modified alan charges were given in addition to the two pattern instructions first the judge said i would encourage you to resolve the conspiracy issue because ultimately all of these issues have to be resolved and this directly mirrors language given by the judge in united states we harris there the judge said this lawsuit must be decided in must be decided at some point this was decided to be coercive by that this court and it was decided to be a honor i don't have any language in front of me that would correlate to in addition to that modified allen charge in the two pattern instructions another statement came on day two of the deliberations in which the judge said i want to be clear that i expected to continue your deliberations toward a unanimous verdict and on the third day there was a mature adult language attached to the second pattern allen charge considering that this court in the united states scott said that they have a strong preference outside of any language coming out of the pattern instruction and the tally of the circumstances analysis as well as the continued insistence by the jury that they cannot come to it and you never miss an agreement agreement at one point saying if we can agree to all of all of this if we can't agree on count one can we were on the other counts and one point they said i think we're being in titian intentionally hung on another point they said that they don't think they can come to  judge continued to push the jury into doing so and under the totality of the circumstances analysis this is simply playing air second and i would like to address the that the record doesn't show when the allen charges were made in relation to racial bullying issues and that this could be explored on remain and your honor as i see that my time is nearly up it agreed that players stand or review applies to the or humans you're making i believe that this falls under the pla charge yes or ality of the allen charges or the content of the subsequent comments is playing there yes your honor thank you you thank  three points on rebuttal today for mr robinson first miss categorizes the application of pena in this case the there were two ways that the bias implicated the verdict one of which was a harassment of jurors and m s and as your honor mentioned other jurors as well however as in pena the four persons bias in this case at is enough to satisfy pena this was not one straight comment one isolated incident the four persons immediate assumption that there was some deficiency for the two african american woman based solely on their race this was after the initial jury pool without any deliberations having taken place the foreperson assumed that the african american jurors were not capable of honestly voting their conscience this goes to the heart of the charges against the defendants in this case and translates hurt the four persons bias translates directly to the defendants in fact even prior to our drug as courts have recognized that bias against a class of persons can translate directly and applies with equal force against the defend it to a specific instances for the court the connecticut supreme court in state versus santiago back in one thousand nine hundred eight stated that a jerk who displayed racial bias toward other jurors for the same reason as the defendant would not be able to impartially judge the guilt of the defendant the second circuit used similar logic racial bias can lead people to lie and distort their testimony even though the bias is directed generally against a class of persons and not directly against the accused and even counsel for the government admitted that these comments were in fact racist and the four persons comments alone are enough to satisfy p rodriguez my second point is with respect to judge roger's question about the jurors being able to come forward voluntarily to report the misconduct there's a key difference between this case and pena rhetoric as which is that the judge in p instructed jurors at the end of the trial that coming forward voluntarily was an option and the judge conceded in this case that he failed to do so and under the totality of the circumstances in this case the multiple allen charges the deputy clerks communications with jurors in the bathroom telling them to continue deliberating under the totality of the circumstances coupled with the fact that the judge forgot to mention the jurors could come forward voluntarily or excuse me what would lead you to believe that judges normally totality of the circumstances the jurors in this case were not likely to come forward as the jurors were in pain yet to report the misconduct i see that i am out of time and i respectfully ask that this court reverse under the of the  the government saying now that this entire contract was a sham was not the position that it took below nor did the district court to my recollection ever say that it was a sham during sentencing proceedings and even mike ward did not testify that when this whole what he called the scheme this bribery screen was concocted that this educational consulting firm was just going to be a sham and that it was not going to be providing any educational services and in fact if it only provided less than twenty one thousand dollars worth of services so it's offense level would be two points lower than it is now and when when the district court improperly apportionment among the various conspiracy tours rather than based on a reduction for services supplied is that a mischaracterization of what was argued below i believe that it is because he didn't say talk about conspirators what was the basis that was are well the basis was based upon the trial evidence where in mr floyd's own testimony in the testimony of other witnesses established that global did earn at sentencing if we go look at the trance the trends at the transcript at sentencing we're going to find arguments about services supplied rather than her instead of arguments about a portion  different conspirators where as your opposing counsel says the opposite we can go look at see that one or the other but is that fair that's what you're saying it will say no because he didn't specifically  he did not specifically say you know propound any any calculations he based his figure on the trial testimony and he didn't you know specifically going to ask me i may have been a comment about apportionment but it was it would have been as i remember whether there was a comment about a portion of them concerned about whether there was something indicating that this reduction was based on the services they look at the trial court evidence as part of the available evidence in order to determine the amount of loss of court evidence i'm not arguing about i'm not questioning i'm not concerned about that i'm concerned about whether you raise this argument that you're making now that there should have been a writ duction for services rendered and before you answer that i understood you to tell me earlier that that argument was not r at sentencing in terms of i was q earlier about whether as an analytical brain work for sentencing your client argued to the district court that the total amount of law should have been reduced by services rendered actual services rendered he did not sit he says it will use those terms he said his calculation of the loss was one hundred sixty five thousand dollars which corresponded to the evidence presented at trial by both by the government witness and by his own witnesses didn't didn't say what the theory was so it could have been in the portion minor it could have been services rendered one or the other is that right we'll go look for them but i don't see how you could if i don't if they don't ra trial but i mean that the defendant has some of their bases which he thinks the law should be accountability regardless of who has the burden of proof he's got the obligation to articulate the argument so the district court can have some clue as to what the alternative methodology might be well i would just simply argue that the problem is that we're shifting burdens whereas we had all of this trial  huge problem is not the true shifting burdens but whether you raise the argument or not and the answer to that question as far as i can tell is no we did not raise the argument the argument was raised in a brief way in terms of thing the value of the services was a have i have read what the jacksons to the pre sentence reports and they all say a thing about value of services at cent and at the sentencing dr floyd's attorney said he thought that the court's four hundred twenty thousand dollar calculation of mine of loss was wrong and wish it would be approximately one hundred sixty five thousand dollars i think we got we got it right we appreciate the argument all of you have given we're particularly grateful to the appellate litigation clinics at the university of michigan and the