would like to address two issues in particular the judicial misconduct requiring a new trial when the trial judge intervened into the proceedings and commented on the credibility of the defense witness additionally your honor i would like to address the issue of prosecutorial misconduct requiring a new trial when the government elicited testimony which had been precluded in eliminating and that happened several times throughout the believe exists we have corroboration from independent investigation and disinterested rd parties confirming that there were in fact undisclosed confidential informant agreements  that clearly would have been impeachment material as to the two cooperating witnesses who testified at trial that was the subject of three post trial motions that we filed before the district court requesting disclosure of those very agreements we still have not received production of the six page document that was discussed at the ex parte sidebar that we referenced in our brief but apart from that no eleven day trial that resulted in eight mistrial motions any one of the issues on appeal standing alone is sufficient for reversal for a new trial in accumulation the volume severity and repetition of the errors and misconduct below her clued any notion of a fair trial but the real thrust of mr various means argument and what we hope this court will evaluate is the interplay between the overlapping uncomplimentary instances of prosecutorial misconduct and judicial misconduct and the special prejudice that results when prosecutorial misconduct is either  or ignored even exacerbated by the trial judge so i would like to focus on the two issues i advanced to the court turning now to the st issue the issue of judicial misconduct the question before the court is whether it was an abuse of discretion to deny the motion for mistrial that followed the trial judge's comments on defense witness jason and the relevance of his testimony and the cross examination of both defense witnesses now this th circuit has evaluated practically identical language in this case the trial judge announced in the presence of the jury that the testimony of jason is not relevant in this case in the united states versus daniels the trial court said practically the same words quote all of this is irrelevant to start out with and the six circuit found that that statement created an appearance of bias so undermines the verdict and required reversal so this is the six circuit analysis in daniels is applicable here and warrants the same remedial action this circuit and this panel have addressed very similar types of intervention and statements by the same trial that that's correct your honor the objection that defense counsel made was to the relevance and scope of the government's questioning and i think it is of particular note that the trial judge did not sustain the objection instead he required the defense witness to answer the question about the supplier of drugs and commented again in front of the jury that the jason giambi must have gotten his drugs from somewhere unless he quote grew them up in his this story about your client was manufactured in the right is relevant information that supported the notion that these people concocted the story that's correct critical witness for you he was a critical witness for the defense theory and it is of particular note that his testimony repudiated the testimony of the two cooperating witness witnesses which were the only evidence against there were thirteen law enforcement witnesses that the government presented who did not implicate mr various seen in any way so the cornerstone of the government's case was the credibility of these two defense witnesses and on direct examination jason testified that they had motive and opportunity to coordinate and fabricate their testimony that at the very least it is a loan was one of the operators was being paid by junior cops to do exactly that and that diego offered jason davi the same deal to fabricate testimony in order to implicate people who are associated with a competing drug trafficking organization of junior so this this was absolutely a critical defense witness and the judge's questioning was clearly targeted at impeaching his credibility encouraging an adverse character in friends because of his prior conviction  disagreed with he ruled that there shall be no mentions of murder by any codefendant in this case and that the government should instruct its witnesses a court in mr mr virus in relied on that order in at that moment he released his demand or the corresponding discovery which had not been provided that supported the purported to support the government's allegations of unindicted  unproven murders he forewent his is opportunity to argue the forum for weighing analysis and also his objection that these  acts were not notified pursuant to the four hundred and four b notice requirement however during the testimony of the st cooperating witness the government proceeded to elicit exactly that testimony which had been ruled excluded and i think the the abuse of discretion on the part of the trial judge was allowing the government to do that without notifying its intends to proceed well what the trial judge said is that there shall be no mention of any murder and then when the government proffered its theory of admissibility as to the kernel the response of the trial judge was will cross that bridge when we g well so when you look at the transcript when defense counsel objected for the st time there was a sidebar exchange regarding the admissibility of testimony about the attempted murder of colonel a model and the trial judge himself so the holding of the court eliminate was that there shall be no mention of any murder our submission is that if something had changed between the eliminate litigation and the mode the moment in which the prosecutor intended to elicit that prohibited testimony there was a requirement of that mr very soon be granted the opportunity to litigate that issue outside the presence of the jury and conduct discretion however because this infringed upon the defendant's th amendment right to compulsory process it is the government's burden to prove that any error was harmless beyond a actually totally the defense lawyers were prohibited from questioning witnesses either the other agents or the cooperate in witnesses about car skills notes because any time the attempted to do that the judge intervened and made statements such as you can ask him about that he doesn't know what car askia wrote those on his notes so they were they were completely prohibited from asking about those notes and more are unable to elicit that testimony from other sources so  or does it depend on what you're saying that he is on the nature of the denial yeah i think it would depend on the nature of the denial i mean for instance to with a cooperating witness lawyers were unable to impeach him or ph them they just simply deny that they had made those statements and the defense lawyers were unable to to show otherwise what did the miss drake that this the case against my client and the others rested solely on the testimony of the cooperating witnesses and there was a very little if any in the way of  are there are these issues which everyone is arguing is independent of the brady issues i think it's totally stand alone issues or do we need resolution of the brady issues to be able to make a determination of these i believe  maybe because i don't know exactly the content of the brady i couldn't as for forty i question what i believe that already the record shows insufficient maybe there can be more th trial on that issue or not in rosario perrault this court decided the sufficiency challenges because what were the evidence to be insufficient in those cases there would be no need for the brady remand i mean this case there would be because only to the defendant and that means you should be all the more quick and close in the loop on this which i think because sometimes question well it indeed we are not objecting to for the discovery at all i can tell the court we have not provided any any it maybe we got hit with the appeal without having to do it and there's nothing there well again we took our cue from this court's decision rosario proper which makes quite clear i think that the because the agent left and so i'm trying to figure out if you let it turn you supposedly as missing in action to determine if there's even a great issue i guess there's nothing there's not these people were not cooperat with colleagues in the u s attorney's office and law enforcement community my understanding from my discussions with them is that indeed there is no further information that subject to be disclosed under brady or again the reason again we did not make that assertion answering brief is precisely because we can we took our cue from rosario peralta that this court is not the proper place to develop the evidentiary record or frankly the lack of an evidentiary record but rather the proper procedure is do come back to this court seeking review of whatever brady decision the district court makes i hope that i'm trying to be responsive to honest questions i'm happy to continue to try to do a better job at that if that would be useful to the court and we're certainly not trying to judge any brady obligations that we have we take those obligations seriously and again that's why we thought that the best approach is to allow the parties in the district court to fully develop the record what the record shows was unable to to get the answer to the question about whether there was more there that's obviously something that the occasion the need for the brady remember i'm not ducking that that fa gonzales point in again i think it's important here note that the frame that the defense have put around their claim is a frame of prosecutorial misconduct and in that respect i think it is important as judge thompson noted earlier there was misconduct and it's a list initial elicitation of this testimony from marrow martel now even putting that to the side and even if this court were to think that in fact there was some kind of misconduct there the district court sustained the defendant's objections that and struck that part of merino martell's testimony that referenced that the purpose of the trip was to murder the colonel for cooperating with dominican authorities at that point in time following that it was merrill martel who testified again on interact that the purpose of the trip was to do a task and that was permissible testimony the discourse specifically allowed the government to elicit that it was for a task the next reference to the fact that the purpose of the murder the purpose of the trip was to murder the colonel and not from the government but it came from mr reminded her nedda is on cross examination the next day when he asked her mark tell didn't you just say yesterday that the purpose of the trip was to murder the colonel at that point in time the door had been reopened so that when mr person alone took the stand and he was asked questions that the purpose of the trip was to commit the murder that was permissible given that remind you hernandez had open the door and i would also know there was no objection by any defended either to mr removed hernandez opening the door or to the examination of paris cologne on the issue of the purpose of the trip and so i think all of this is highly relevant not just to the fact that there is no error here but also to the fact that there is no prejudicial air other other factors i think that go toward it in again this is assuming that the court were to find error which we do not think there was but looking to the inquiry there are several considerations here they think militate against their being prejudiced one is the fact that the jury unanimously acquitted three of the defendants including mr versed in cruise on count one the importation conspiracy count and we cite cases from the supreme court and this court that go far toward showing that this kind of split verdict underscores the extent to which any prejudice was minimal and this context the other point i would make with respect to the lack of is that a closing argument the government again in keeping with the way the discourse had viewed as reference that the purpose of the trip was to do a job it was removed you hernandez you referenced testimony that the purpose of the trip was to murder the colonel  that may well be your honor but that was what the dischord allowed the government to do and there was no protest from any of the defendants and for the for that to the extent that we could show that this was for a a task the other point i would make with respect to the the implicated at all in any way with respect to the december two thousand and nine trip to murder the colonel and the discord instructed the jury that the jury was required to consider the evidence on each count as against each defendant separately and so i think that and coupled that instruction coupled with what the supreme court has called the almost invariable assumption of the law that jurors follow their instructions i think goes all the way toward showing that those two defendants cannot have been prejudiced as to mr removing hernandez providing security for the conspiracies leaders and with respect to mr versing proves there was ample testimony that he provided arms security for mr torres a stronger who was one of the leaders of the drug trafficking organization and so just sort of thinking about th gonzalez issue for all of those reasons we think both there was no error and if there was there was no prejudice from that era when you mention ample evidence and ample testimony are you referring to the testimony of the two principal cooperating witnesses so there were three cooperators each defendant was implicated by at least two of them and then there was some law enforcement testimony that referenced for example mr martinez regrown was connected to  sure there was a there were two objections that were raised neither one was a relevance objection they were both overruled the rd time the government asked the question there was a relevance objection and this is when the district court's made its comment his testimony is also not relevant to this case our reading of the record is well our reading of the record is that it's not at all clear that that was an overruling of the objection but rather it is i think fair to read the record as sustaining the relevance objection i think the best evidence of that is that in fact i'll be there is never answered the question the government never returned to the question the dish court never required dobby lotteries to answer the question after that so there's the colloquy about th were overruled we return to the question then there's the relevance objection and then there's the dish the court statement his testimony is also not relevant to this case the next thing that happens is dobbie the rez says i was not a runner in that conspiracy i was an enforcer rightly if i said that i didn't mean to it if there if if in fact the defendants that there was other brady material that we have that should have been disclosed that they were confidential informants and got some kind of benefit it maybe they got paid money or b looks or they got something that we never disclosed there would be a question about whether that would be material in this case and to be sure if if the dish court finds both that there is something that was not disclosed and that it's material being that there's a reasonable probably that had it been disclosed the outcome of trial would have been different than the defendants one or all would be entitled to a new trial well my real question is assuming that there's nothing in there that is of help to th quibble a little bit with the premise of your honor's question i'm not sure it's a fact at all that they were confidential informants what was disclosed to the jury and what was the subject of repeated lines of directing cross examination and the subject of attack by the defense a closing argument was the that these cooperate years were cooperating in the hope that they would receive some leniency in their own criminal cases and that therefore they should be disbelieved the district court gave an instruction to the jury to consider the cooperation testimony and name the cooperate years by name but with particular caution in light of their incentive to shape their testimony so if there was something to be and i'm not trying to quibble with your honor's question too much if there was something else out there if they were confidential forms and other cases if they got undisclosed benefits then that would certainly trigger close scrutiny from the district court on the defendant's brady claims the record as it stands now does not provide any support there's no evidence in the record that these cooperate years were anything other than coop from law enforcement officers or testimony from law enforcement officers that they the operators were not confidential informants or that they did not obtain benefits beyond what was disclosed before a trial that indeed is the very thing that we expect to be developed in  asked for a a limited remain before even filing our brief i know so precisely because we thought eleven expeditious way of allowing the parties in this court to deal with this issue is to press pause on this case entirely send it back to do the  necessary in we can't do that a court below would do it your unilateral log ation to produce stuff there's no reason at all to slow that down and so we go back to with who was almost a year ago that you knew there was an issue how could we be standing here today and the government can say we fully checked it out and we can represent there were there were not confidential informants but again i don't need a fact finding by anybody other than yourselves to t what i'm not what i am comfortable representing to the court that that i have been told that they were not confidential informants and did not obtain benefits the defendants insist that they are and so if we had  supplement the record for example or just started in our answering brief that there were not confidential informants and that they did not obtain benefits there would be a disputed fact because the defendants maintained that they were with as far we're not we're not no one's contesting the if there's a dispute  resolved it but it does seem that by now you would have talked to the lawyer who they say left iraq for us than anyone else who might be a hole and you would be able to confidently say on behalf of the government now and that's what i've been told but but again going back to the result the fact that there was going to be even if we had asserted that in our for example our answering brief in a in a the most forceful of ways there would still be a contested issue  whether it is requested or not when we come into it when we learn that there is undisclosed bravura glioma tiriel we have to turn that over my understanding from colleagues is that there is no information to be turned over are you going to discuss the  they and i looked the defense counsel did their work here they went in they actually asked the witnesses point blank did you tell the following to kind of be of interest gives notes showing they did and already agreed to a closing to be agreement between the parties that this is a case that turned very heavily and rely very heavily on the cooperating witnesses testimony so when they both say that they did not tell the agent something that's very relevant and they told them something different how do you explain the defendant not being able to bring the agent on the stand point to his notes and so they darn well did tell me yes so they have therefore changed their story on material elements of the what i think the answer to your honor's question is is implicated in the premise of it and that's to be sure if it's a discrepancy that the defendants were trying to identify was a material was a matter that is material to this case then the collateral  as was testified to a trial or four million dollars and whether he brought it up khan up or to casa de compo in the dominican republic the essential inculpate inculpate in fact is the same he's bringing drug money to the dominican republic if what the defendants want say well where was he delivering drugs and he says town anyway and then you find out that on a prior occasion he said county and it was a different amount that's how you attack the credibility of a cooperating witness you show that he's obviously making up in the defendant wanted to call law enforcement officers to testify that the witness never said before trial that the victim had his hands up pleading for his life before trial and a majority of this court held that that was barred by the collateral impeachment rule because things that i have to point out is that it's not exactly correct that this issue of undisclosed agreements was exposed in february the requests began pretrial and they became more insistent as we developed more information about the scope of undisclosed information and when the trial judge ordered the government to respond as to whether there were undisclosed agreements the government's response was that the requests for confidential informant agreements are typically made pretrial and the defense is not entitled to that information as a matter of law pursuant to rule sixteen so when the trial judge required an answer none was given and if i could just finish my thought very highly i believe that we have a futility problem here the defense has made three post trial motions for production of the brady material and the trial judge in this case has accepted the non answer from the government we still do not know if there are undisclosed agreements and has declined to rule on on those issues and the procedure that was  provided in rosario peralta is a procedure that this trial judge has repeatedly refused to implement and for that reason we we assert that the limited remains in this case at the very aware of the government's ongoing duty of inquiry in production and that it had jurisdiction to oversee the enforcement of those duties which is all that the defense was asking at that time and the purpose of those post conviction motions were to be able to file a complete rule thirty three motion for a new trial based on the suppression of that information and to complete the issues for appeal in order to have a an intelligent conversation i think the best example of the overlapping and complimentary instances of prosecutorial misconduct and judicial misconduct that we've alluded to however it is separate and apart from the other issues that are currently right for review by this court and we believe that the appropriate remedy for the issues that we've discussed today in the ones included in our brief is remain for a new trial anyway so our opposition our nischelle opposition to the government's request for a limited remained on only the brady issue was simply an objection to holding in abeyance the adjudication of those outstanding issues if in fact there is going to be a new trial we believe very strongly that mr various teams should have the benefit of the suppressed brady information to use effectively in furtherance of his defense theory but we do not believe that it is necessary to a hold in abeyance these outstanding appeal issues or be limit the remain to the to the issue the question of whether in fact there is an undisclosed brady information pursuant to rosario her although we know that that is actually a affected the outcome of the trial and the purpose of briefing that issue is to demonstrate to this court that of of course it affected the outcome of the trial he suppressed information went to the heart of the defense theory which is that these a nation the defense witnesses i mean the whole point is you sit in the fence theory was the credibility him of the cooperators and so if there's something that would attack this outfit to attack the credibility it just seems all intertwined in it and i'm just trying to figure out you have clarity that it should be unbundled and i'm just don't have the same clarity about  why i think we're parsing it i think for example your honor is correct to observe that the type of misconduct that we are complaining of with respect to the brady issue is at work in the incident regarding  jason however we also have provided the court with independent bases to warrant remained for a new trial so if for example this court were to find that there was a structural aired during jury selection because there was no opportunity to exercise challenges for cause the remedy the only remedy is to remain and the entire case for a new trial and so what we're asking this court to do is to decide the other issues independently of the brady issue understanding that remained for a new trial is appropriate and once that occurs then we would ask this court to compel production of the brady material and to assign this case to a different trial i couldn't i couldn't understand why you're saying on the jury selection that you did have a chance to exercise challenges for cause it wasn't not making any allegation but it was an intentional and tensional decision by the trial judge to limit the jury selection process initially however once it was brought to his attention that there had not been anybody here to to elicit whether there were bases to challenge for cause prospective jurors or to exercise those challenges the trial judge decided that he would not go back and that he was going to impanel the jury that had been selected based only on peremptory challenges and the result as you can see during the sidebar exchange that occurred was defense counsel was in  initially question and you're saying at that point there was no every day she from the court to present challenges because that's correct and once defense counsel notified the trial judge that there had not been an opportunity to exercise challenges for cause the trial judge denied the opportunity to do so at that point that caused defense counsel to notify two examples of intentional jurors that raised concern about competency to serve but also pointed out that the defense had not had the opportunity and neither had the judge to further inquired to conduct the bloody are necessary to make that determination and the reason that we know that that is what in fact occurred is the what here that was ultimately conducted in chambers as to juror number one didn't occur until the th day of trial those are questions that should have been asked of her before the jury was even i aneled and on the th day of trial once there was an opportunity to probe into her present potential bias defense counsel of course no longer had access to any of its peremptory challenges but isn't this the responsibility of counsel i mean the juries are being called and then if you suddenly find out you're doing peremptory doesn't someone say time out with that some further questions will we not cause yes and in counsel don't do that here actually with one witness  did us question in retrospect it would have been advisable to bring it to the court's attention sooner and possible it isn't always done that way well it is the custom to do challenges for c always yes but our rule our local rules specifically states that the trilogy has broad discretion to administer the jury selection process and if or some reason he had elected to conduct deferred to the court at that moment however once it became and parents of the trial judge intended to impanel the jury without exercising blood here or the opportunity to do challenges for cause it was brought to his attention and he jury in which challenges for cause had not been exercised at all and because because that is exactly fifty percent of the procedural safeguards that exist to ensure that an impartial and co rely on in order to remand this case for a new trial which which i believe is the is the original question about what to do with this limited thank you for the opportunity on or with respect to the border issue i think one of the main points here is that with the exception of the untimely motion to challenge her one for cause there is not a single thing the district court did during  parties to lawyers have you ever been the victim of a crime do you have family members working for law enforcement is there any reason that you can't serve on this jour face by the way your honor they have not or cause challenges so it was after the twelve just jurors that were going to be seated were chosen and before they started the process of selecting the alternatives is is this idea after the twelve jurors are chosen before they start selecting the alter net's there is this issue of for cause challenges is st raised the discord says well do you have any for cause challenges in the defendant say with the information we have your honor no we don't it was too late and i think it's important note here that although the formulation that mr verity crews use it has come to our attention that might suggest that there was some new piece of information that had come out in fact that's not the case drew one had said during her individual here that her brother had retired from the st division indeed another gerges or eight also said that he had a family connection to the puerto rico police department and one of the parties actually had the record doesn't show which one but exercise of peremptory on  eight no one said anything with respect to juror one and the other point i would make for the court is even if there was something that the just report should have done differently with respect to germline even if the discourse should have heard the four cars challenge before trial we know to a one or even had the dish court entertained the untimely for cause challenge the four questions would have been denied because german one was impartial and unbiased and the defendants were satisfied with her assertions of impartiality and lack of elected not to do so the final point i want to make here is brief the structural error here in this regard is the seating of a biased juror that is if a jersey actually biased there is no question about whether the evidence was of context it was after they had selected the twelve jurors before they moved on to the alternates when mr varian crew said your honor we have not done anything about for cause challenges in the ensuing colloquy the court asked the defendants twice whether they had any for cause challenges and both times the defendant said your honor with the information we have we do not thank you thank you thank you for the opportunity  cooperate in witnesses as judge coming out of pointed out in consistencies between what they told law enforcement and what they testified to at trial is are certainly not collateral impeachment that is material facts this is not impeachment about some unimportant fact this is impeachment about what they claim were the defendants activities in this drug trafficking organization and the whol case i think is in my reply brief is right on point there additionally it is not true that the defendant defendant mystery monday did not point out a specific example page eleven of my and he was asked whether he gave that information to the agents previously he strenuously testified that he did and the defendant was not allowed to impeach him with heels notes which have no indication that he gave that information thank you a i'll be glad to give you th