our fifth case for this morning is united states against edge w first mr edwards right to due process was violated when his motion to suppress was denied without an evidentiary hearing second mr edwards right to an impartial jury was violated when the district court seated and retained  of dispute as to material fact that is definite specific and not conjectural so can we just stop there i mean because he does assert more vaguely you know that there was a physical assault and he is is that more and more vaguely that he's told that he doesn't cooperate hill go to prison for a long time but i can't figure out and i don't think that just report could figure out what we were really talking about with the with the physical assault once he was in custody you know what was an assault he just get shoved into the interrogation room was somebody beat him up let me feel i could be some evidence so so some context to make you think that there's something you've got to pinch you and i would say the same thing police officers very frequently are not experts on the u s sentencing guidelines and they might say you know if you cooperate life will be better for you or they might put it the other way around they might say if you don't cooperate you're likely to face a longer prison term in the whether it's true for mr edgeworth or not to one side in general those are true statements so where do we have the detail that would make this an abuse of discretion and just record not to hold the hearing your honor your honor while the additional facts as to what the abuse was and exactly what the statement was would have been helpful and mr edwards motion to suppress they were not necessary here because another dense here hearing is exactly what that is exactly what is needed in order to a duce those facts but they are facts at least at particularly is to do  are facts that he knows about this is his own experience that we're trying to get a little bit more information about so he surely i don't see any indication that they knocked him out at any point you know at what stage in the process he thinks undue force was being applied right so i wouldn't know that yes you are and he would know that and he asserts that force was applied once he was taken into custody and before he was in now exactly what the force was he does not allege or exactly what the statement was he does not specifically say but and that may be the problem and yes your honor that may be a problem but the district court here abused its discretion by not inquiring further into what that abuse was and what those statements were the district court judge could not have properly exercised his discretion because he simply didn't have enough information to make an adequate ruling on this motion to suppress a district court judge judge really self had to take over and pro for a while and see it and evidence for hearings needed yes your honor it would be the disc it would be the it would be in the purview of the district court to inquire further because in court's discretion well but then you you have an almost insuperable problem on appeal why was it an abuse of discretion just to rely on what the defendant himself it said or more accurately not said your honor it was an material fact and that's that's the problem there there don't appear to be any issues of fact that the motion was pretty much back free your honor we come back to the question of burden why doesn't the defendant have the duty to show that there are just beauticians of material fact then you will be hearing respectfully your honor the defendant here did show that there was a disputed issue of material  his motion that his confession was coerced both physically and psychologically if your honour's have no further questions i'd like to turn it over to mr pinata to address a germ issue and that's fine and it's been out o me please the court my neighbors daniel payne otto and i will discuss the juror issue all right so the big issue in the jurors shoe frankly is when all is said and done after she wrote the letter to the court mr edwards lawyer says that the defense has no objection to the way the district court chose to handle it so why aren't we about the on page four twelve to fourteen thirteen of the transcript the court said that it was the court's decision it was not a decision by either party and even if  adequate border the district court has a duty to be vigilant to ask follow up questions and this event affected the defendant substantial rights because the defense was unable to detect juror bias and to intelligently use their print three challenges what evidence is there of bias on her part other than this was inconvenient for her return to school yes your honor it is our position that there was no prejudice against the defendant jure did not want to be there a lot of jurors have others as the judge pointed out most people have a life you know and jury duty disrupts that in the judge was reluctant to say just because it's some inconvenient for you all of a sudden you're either not going to be seated to begin with or particular little trial you're not going to continue yes your honor to elaborate there were there are two reasons why her unwillingness to be there was problematic first she wanted to leave thursday january twelfth and they were entered into deliberate and on that same day it ended in less than two hours so not only did she probably have a chilling effect the fact that she wanted to leave but also  juror is not committed to leaving additionally the fact that she was unwilling to follow the judge's instructions or the fact that she did not ask whether she could leave she told the judge that she wanted to leave but then she acquiesced when he said actually no right yes your honor she did act yes but it's our position that the judge should not administer an oath to a chair who seems so unwilling to follow through because he not only excused students but he also may please the court this court should affirm the district court's judgment and sentence in this case because the district court did not abuse its discretion in denying the defendant's motions to suppress without a hearing as has been discussed the defendant has to put something get issue is to make a prima fascia showing of some good legality i mean it has to be so more than a conclusory there's no magic formula to it the type of officer the location where it happened whether to happen on the subway platform or in the officers removing him from the subway train tracks up to the platform or in the car right over to the f b i facility he could have identified what was done whether it was punched or kicked or pushed more information from which the district court could determine whether there was some showing made but works of some genuine issue that needed to be decided through and evidentiary hearing none of that was made rather you just that would warrant a hearing and without that the district court properly denied the defendant's motion to suppress importantly here the defendant had opportunities to fill that could provide that information the government filed its brief and noted that the defendant did not provide those types of factual allegations the defendant did not follow the reply brief at motion hearing on the defendant's motion to suppress the government stated its position in the district court  asked the defendant whether he had anything more to say the defendant's lawyer said no and he rested on the allegations in the brief and those allegations consistent simply of that officers physically coursed him that officers physically assaulted and that officers made statements there were again no factual assertions leading up to those conclusions that he contained from which the district court could assess whether there was anything to any substance whether there was a substantial claim made which is what the district court must decide when determining whether an evidentiary hearing is necessary now the likelihood that co operation was going to lead to a lower sentence in his particular case was minimal at best given that there were mandatory minimum that apply to the firearms offense and there is some law to say that leading a defendant to think that he's going to get lenience when as a matter of fact that's just not within the structure of the law is is improper that's correct your honor the case law does indicate that here we don't have any information as to what the sentence was our what the statement made to defend just was and as noted or at the time the defendant had been charged with robbing a bank while brandishing a weapon and that brandishing count does carry a seven year mandatory minimum sentence however no charges were filed at the time that was just those were the facts that the officers law enforcement officers had before them and so it's a it could have been all likelihood probably not your honor the charges that's what troubles me at all like that i agree with you probably would not have done anything and so some point surely we crossed the line from at least somewhat plausible promises that there are there may be benefits to one of course of action to just out and out false or inaccurate statements and we've agreed that false or inaccurate statements can be in permissible form of coercion that's just looking at one of the charges that were eventually brought up which would do the nine twenty four seats there would still remain discretion with respect to the bank robbery couch and that that would be subject to the advisory guidelines range  parties arguments with respect to whether he cooperated or whether he admitted in which case the that portion of the sentence could he could still qualify for the acceptance of responsibility or something like that so technically it's again technically still true and that the three points off with the fact that the advisory portion of the sentence for the bank robbery violation stepping back from that there's still no indication as to the what statements are made and without that type of information it's worried about everybody one officer did have the third rail cut off they power cut to that third rail so there was no train stopped and there was no harm to the officers or to the defendant once that was done statement by defense counsel was i'm in agreement with the government your honor i think she should stay that's a clear waiver that's clear except in so the court's decision and when the jurist came out the district court indicating that it was the court's decision challenge for cause to a student earlier in the volunteer who said he had to return to school and the district court explained no notably the defendant did not agree with that challenge to the juror in the discord eventually denied and that's where the explains that individuals have various reasons why they might not want to serve jury duty but nonetheless it's important that they do the decisions where the individuals who are the district court judge did strike four calls for individuals with some type of medical concern where the concern at least expressed where the district court was whether the individuals would be able to focus on the jury or the trial at hand but nonetheless it's waived issue you don't get to the sufficiency of the four deer  intended to return to school on thursday and that had all the information necessary to make either a cause challenge to challenge but chose not to do so and for those reasons the unless there are any further questions  where the corps and happened in the f b i facility who committed that the officers who were interrogating at and when it happened right prior to his interrogation knowing those facts the district court should have conducted an evidentiary hearing to determine the validity of mr edwards allegations with respect to the juror issue your honor the district court simply did not take the steps necessary to in form themselves and counsel  probable reasons for needing to be excused mr harris had undue hardship and the district court should have inquired further during board year and should have allowed mr tears to be excused when she gave the no on thursday for those reasons we