may please the court good morning my name is michael burke appearing this morning on behalf of ms angle i will watch my time and attempt to reserve three minutes for rebuttal here in her briefing to this court ms angle raised several challenges to both her convictions and her sentences and with the court's permission i would like to spend time today discussing ms ingles batson challenges to the prosecution's strike of three three of their seven peremptory strikes just and could you focus first on juror forty one certainly your honor and our position with regard to jury forty one is that it is subject to a different form of analysis for this court for one reason which is that in that instance the district court judge found only that the government had made a prime a facia showing of nondiscrimination that is not what is required of the third step of the bats and  requires him to quote from bateson a sensitive inquiry looking at the all the evidence available and this case the judge did not do that she simply found a prime of facia showing which is merely an inference so under this court's case forty one was a mother of a one year old she lived in tolleson arizona she had never served on a jury she had a bachelor's in economics from a university in mexico and she also indicated that she had had two uncles two fraternal on close who had served time for drug transportation one in the united states and one of mexico the judge asked  struck the defense counsel raised a bass and challenge the government's response was that they struck this juror because she has uncles who went to prison for drug smuggling these are the types of cases u s attorney the u s attorney's office regularly prosecutions now under a comparative juror analysis which is commonly used under bat's analysis there was a nother juror juror twenty eight who actually served whose sister had been convicted of drug transportation that no questions were asked of either juror about potential bias that those family members convictions might create but the government chose to strike juror forty one intro chose to allow juror twenty eight to serve in their briefing the government seems to suggest that there may be some distinction in the fact that juror twenty eight s was convicted in michigan and that she received probation but that really doesn't explain the issue of bias if someone has a family member who has been convicted of transportation the bias may well exist i mean there is no indication that the government was concerned about specific bias against the u s attorney's office in the district of arizona and even if it was they never inquired of juror forty one where her uncle who was convicted in the united states was allowed to serve juror forty one was not no questions were asked of juror forty one at all for that reason alone this court should reverse ms ingles convictions and remain for a new trial unless the court has additional questions about juror forty one we also submit the jurors nine and twenty seven were improperly struck now with regard to juror nine the court would proceed to the third step of the bateson analysis the government found that the this court would therefore review for clear error the first reason the primary reason given by the government for the strike of juror number nine was that he i will read from a e r two he stated that everyone should be allowed to carry firearms so long as they do so legally that indicates an expansive view of fire own farm firearm ownership and possession and as we argue in the briefs juror nine statement was a truism i may believe that people should follow the law that doesn't make me an outlier among citizens all he said was i believe people should be able to carry guns as long as they do so legally the i will note that the district court noted that she tended to agree with defense counsel on this particular issue the other issues that scuse me for a juror nine was that he had early on indicated that the drive from yuma to the courthouse and in phoenix was inconvenient to the district judge was not persuaded by this reasoning either she indicated that the entire jury pool came from throughout the state of arizona district of arizona is one one district and that he had indicated it really wouldn't be that much of an inconvenience also other jurors who were not struck had indicated really more specific and more troubling inconveniences had they been required to serve one juror had a business trip that he would have had to postpone another was a teacher of special needs children who indicated that her district would have difficulty finding every placement for her those jurors were not struck and they were allowed to serve well there's as one quick question here up nine twenty were i will tell you that there is a juror list that has not been made part of the record and then we are happy to make it part of the record i used it in my preparation for for oral argument the government obtained a copy of this juror list which has the last names of the jurors and i could i could look very quickly your honor to to tell but our argument would be that even if a juror who was hispanics serve that would not vitiate the the equal protection and due process error that occurred when these individual jurors were struck the striking thing the even one minority juror is is a violation of the constitution but it seems counsel if there is a sheet of paper or something that's  not you say it's not the record you say it's not the it's not in the court record it is in it is not in the arts it is it is part of the record in our opinion ok it wasn't was it filed in the district court record i don't remember that we used there was a there was a motion filed by the government in their preparation of the answering brief in this case asking for its disclosure every day acted version was disclosed the government did not choose to file it as an  supplemental excerpt of record and my my colleague who wrote the reply brief did not either but i disclosed to the court that it does exist we would be happy to provide it to the court at its request but as the district court never had access to this list yes your honor the district court actually ruled on juror forty one was not a native speaker of the english language so it may not even be necessary to do that if the question is was during forty one in fact a minority i think having not myself been involved in this case i think this transcript itself may provide sufficient information to do that but yes this court could simply remain to the district court for it to conduct the third step of the analysis with regard to juror forty one with regard to jurors nine and twenty seven the district court already conducted that factual finding and so our argument is that it need not remand to the district court on those two jurors which if the court doesn't mind i'd like to briefly discuss juror twenty seven a juror twenty seven is almost up i have i have we have probably one more minute that i could have four minutes and thirty seconds still remaining on a so very very quickly the point that i would might to make about your twenty seven is there was some indication that the investigator for the government may have had thought the name was similar to the investigation he was aware of may have involved the stepson the adult stepson of the juror knowing where he was made of the juror and he no question was ever asked of him whether his adult stepson who had been convicted of a crime in california even share his last name it was a complete su the government's part that there might be some correlation between juror twenty seven and this name with which the investigator was was familiar and on those facts we would submit it was clear error for the district court to deny that baton challenge as well so we would ask on either or any of these the arguments that the court reversed missing those conviction and remained for further proceedings i will reserve the remainder of my time think please the court my name is ryan powell i represent the united states district court did not clearly air when it concluded that the government had genuine race neutral reasons for striking jurors nine twenty seven and forty one didn't grade didn't make that conclusion with respect to forty one of the government's position your honor is that the district court did and you should have example is where well in the record the it shows the page with respect to germany for forty one the district court considered the reasons of the government i believe it was at page i'm looking at two fifty five and fifty six of the are yes that those are the  correct sites where the where the district court did consider the baton challenge with respect to journey or forty one of the government's position is that the court did hear the government's reasoning and listen to the defendant's  objections before ultimately ruling overruling the defendant's bath and challenge the court did use the words prime aphasia case however the record also illustrates that the court was well aware of its obligations under batson having already addressed the baton challenges with respect to jurors number nine and twenty seven however even if this court determines that the district court did not complete the third step of the baton analysis this court can undertake a d voter of you with respect to the strike of juror number forty one and if the court does that the record illustrates that the government did have a genuine race neutral reason for striking juror number forty one and the record illustra the government had two primary areas of concern when exercising its peremptory strikes firearms and criminal convictions every juror struck by the government with a prime to restrike fell into one of those two categories and with respect to criminal convictions the record illustrates that the government was primarily concerned with criminal convictions related to drugs the only juror struck by the government that did not have a drug related conviction was journal for fifteen and that was a juror who personally had been prosecuted by the united states and noted the ambition of the u s attorney's office and the f b i all the other jurors struck with peremptory strikes by the government who had criminal convictions or had a connection to somebody with a criminal conviction all of those other jurors the criminal convictions related to drugs were drugs  tangentially and the reason is that the crime the defendant was charged with in this case was not that it was illegal for her to possess the firearms but that she illegally transferred the firearms to her codefendant at the very beginning of the trial the jury was instructed that her codefendant had numerous prior felony convictions and that two of those prior felony convictions were for drug related crimes and so given that his the felonies that made it illegal for him to possess firearms were related to drugs that fact the government used when exercising its peremptory strikes and focused primarily with respect to criminal convictions on individuals who had connections to drug related convictions with respect to journal before the one as juror forty one compares to juror number twenty eight which counsel brought up doing the comparative juror analysis when the court and gauges in this type of analysis must consider the totality of relevant facts and must consider the whole record of the jury selection process when doing this comparative analysis again other than criminal convictions the other area of concern for the prosecution in this case were issues related to firearms one of the questions that the district court asked the jury panel as a whole was who here believes there should be more restrictions on guns or gun ownership gertie twenty eight answered that question in the affirmative and juror twenty eight noted that she believed there should be more restrictions on firearms juror forty one did not answer that question either way so if doing a comparative journalist is between  or forty one and journal twenty eight the fact that juror twenty eight felt there should be more restrictions on guns made that's a reasonable reason for the government to believe that juror number twenty eight would be a more favorable juror for the government then juror number forty one counts i'm sorry to interrupt here but for juror forty one the the court's comments and they appear on page thirty one of your briefs and it's very helpful the way you laid it out can you can you cite a case in the ninth circuit where a judge is given a similar type of well called step three analysis but a similar type analysis that here current her and that we end up to any other case where to get us where you want to go no your honor but i will note for the court that because the batson analysis  essentially is a credibility determination at the end of the day and because of that that's why there is such a deferential standard in this case now i understand that this court is saying well if the district court in a complete the third step of the bass analysis obviously that difference would not apply however if this court looks at the record and because that's and it's such a fact specific inquiry if this court does look at the totality of the relevant circumstances looks at  the jurors that the government did strike with its peremptory strikes and the fact that every one of those jurors either had issues related to firearms or criminal convictions and then looked at journal for forty one juror forty one fal squarely within the criteria the government used to strike the other jurors that it struck with its peremptory strikes as well now in this case jumping ahead a little bit i think you agree that there need to be some supervised release conditions need to be kind of thing that's correct the government does not oppose a limited remained with respect to the alcohol condition because the oral pronouncement at sentencing was different than the written judgment and the government also does not object to a limited remain and with respect to the defendant's father with respect to contact with him either to allow the district court to make additional findings or simply to strike that requirement are so so here comes that kind of a not very fair question i'm asked anyway since we're going to those two other conditions that need to be reminded however the the record is sufficient in this case for this court to conduct and did no full review if it finds that that's necessary which seems to be the case and conclude that there was a genuine race neutral reason that the government was not motivated by discriminatory intent when it struck a juror number forty one now if this were any just facts left on the jury your honor that is not clear from the record i know that  when opposing counsel was discussing this list that exists that's not that has not been made part of this record but as your honor noted a juror's last name is not a good proxy for that juror's race and so the record is not clear with respect to the racial makeup of the final jury panel that actually consider the case briefly i would like to address a couple of issues brought up by that he would not get the days off from work and that he'd have to use vacation days if he were to be seated on the jury panel also that was not the primary reason that the government structure number nine as the government explained the primary reason was cause or for hardship additionally with respect to journal twenty seven the reason that the government struck that juror was not only that the case agent recognized that last name but the first reason that the government gave for striking juror number twenty seven was that his stepson had been convicted of a firearms related crime and also drug related drug related crimes and had been sent to prison for those crimes because this case directly involved firearms and tangentially involved drugs there was a race neutral genuine reason for the government to strike that your ultimate lien the government had race neutral genuine reason reasons to strike jurors nine twenty multiplicities argument all this court has to do is apply the block berger test each of the crimes the defendant was charged with in this case requires proof of the fact the other does not therefore they are not multiplicity is it is also possible each count without necessarily committing the other count and therefore neither count as a lesser included offense of the other individual given the charge crimes in this case could commit count one which was aiding and abetting a felon in possession of a firearm by driving that individual to a gun store giving a felon money to go buy a gun and by doing that would have committed count one but not count two which requires a transfer of a firearm similarly an individual could commit count two and not commit count one by providing a felon with a firearm that had been manufactured in the state where they were and that firearm had never traveled in interstate commerce that would be a violation of count two but not a violation of count one because it's possible to commit each count without necessarily committing the other of the counts or not lesser included offenses of each other nor are they multiplicity us and in terms of sentencing consequences i was trying to figure out what the practical effect would be if we were to decide disagree with your analysis just hypothetically or is it just a special assessment that's the only that's the only thing that appears on the record that would be the difference the offense level  wouldn't change the sentencing range want to change the defendant was given a below guideline sentence anyway but the only impact on sentencing if the court were to find that the counts were multiplicities would be the special assessment honour's judge given and i'm i feel awkward answer your question about what jurors served on the panel without having this made part of the record again we would offer to make this part of the record the court likes would like to see it my review of the journalist indicates that with an obviously hispanic name served as a juror in the trial of this case that's an answer to your question now i agree with the government that last name is not necessarily a good indication of what someone's heritage or racial background is but i i answer to your question on that and also very quickly the government's argument with regard to the strike of juror forty one is an excellent example of why remain and would not be appropriate in this case counsel for the government explained to you  analysis of the difference between juror twenty eight and the twenty forty one that the government has now had two years to manufacture it was not presented in the district court and as the court noted in miller l a challenge to a strike under batson must rise or fall on the prosecutor's answer in court what actually motivated the strike in that case and there was no discussion at all about the distinction between juror twenty eight's comments of restrictions on guns and miss a number forty one silence on that point if the court has no other questions we would ask that the court reverse the convictions