we'll move now to the next case on the counter united states of america versus robert coston jose diaz and we have mr eddie who's arguing on behalf of  a court will recall this is double homicide prosecuted twenty years after the murders on the basis of testimony ever shifting testimony of a paid but it minutely double and seven murder and we believe that the debate is resolved by looking at the rule governing sufficiency cases which is that the evidence must be viewed in its totality rather than in isolation considered testified that he began working for mr acosta's drug organization in the months after the murder so you know which drug activity related to your client you're just saying it's a different here see is that what i heard you say well i'd like to go in a little further to that you know go keys are in the supervisor accounts top lieutenant and appellant himself immediately instead of presenting any sort of united front immediately it unfroze my client under the bus and tell the supplier that appellant had to rob themself because he didn't do the robbery so already the things are falling apart then getting testifies i mean if you're going to look at robberies there was a preceding robbery at an edge mine location and then there was this burglary he met the supplier both times because it suppliers showed up to find out whether that was a real you know really was a robbery that supplier is identified in the transcript as somebody named chaco thereafter when it gets into the conspiracy a separate conspiracy six months after the murders he tries to set up a pellet supplier at that point  that point is now named maurice's so they're two different suppliers we don't know if if a pellet was ever to able to pay they backed collateral testified that the murders were because appellant was obligated to pay back  six or seven people there were identified in testimony as being involved in this three of them were ventura brothers one of them appellate issue or has robbed them there after he sees it he sees that all of the ventura's are now flashing money have more stuff than the supposed to have and both kolob go and hit it to vera says he saw this on its own so you got one person that he doesn't trust he's going to kill one of these brothers he's not going to keep the other two brothers around one of them who is flashing a gun in the neighborhood and wearing a bulletproof vest he's going to keep them in the business and i mean the testimony is it was over so i'm sorry i'm getting a little passionate here that's fine michael to your other points because you are right well point three is another challenge to the same convictions it forty one but only with respect to the murder of the woods and two or alex ventura there is no dispute that the brother that appellant wanted to kill was hit in ventura alex is the one and him was shot at one point but because the brothers looked exactly alike eventually it was alex that was killed been recognized both by this court in the supreme court would permit a properly instructed jury to transfer the intent to kill it to the ultimate victim who was his younger brother alex but the government done which could show his intent that he whoever was responsible he wanted dead st of all your honor him with actually shot in between so the the target that he sought to have killed was shot st of all before the ultimate murders which would certainly say that you know hidden is the person that is look at the to kill and he got shot so at that point he ought to know this man has tried to kill  he tells at the funeral he tells collado that he still wants him to die he feels terrible that is brother died that was not intentional and he's still going to get it that could be the reason why he i mean st of all he's paying a hitman you don't want to be the hitman because the hitman may come for you nd of all he may still you can't conclude from the fact that the money got that he endorsed the mistake he could have been paying for the murder to go r and for him to still be murdered so i mean the key here really of your honor to me is that the jury can only follow instructions it's undisputed that appellate never never wanted alex to be killed he wanted it to be killed so what what i want to know i mean my argument here is that the jury needs a pair through the instructions to get to the goal that the government wants they were given ok that's in this case they just can't jump out it can pick him of anything so work what whether the woman said something or the man said something in the man said well i'm glad he broke it down that i don't want to send the person to prison if he didn't do it so i'm glad they are handling it that way that those are the facts  case we asked that the juror that the judge excused the male juror from the jury and inquire of the female juror as to whether any of that had any effect now the judge declined to do that seems to me that the judge and the government too in discussing this issue makes two errors k the st is that conversation that the witness heard is the full sum of all the conversation between those two jurors but that witness made clear you didn't hear the beginning of the conversation she didn't follow the jury's out and say maybe if we don't know whether when the jurors got to the courthouse steps it was handled it that way they argued in terms of you know maybe that's what it means but maybe what it means is i'm glad that that juror and i deliberations broke it down and show us the evidence against each of the defendants because i don't want to send an innocent guy to jail i want to send a person to prison if he if you didn't do it i mean the jury is following his oath right what would be the basis for dismissing that juror without further inquiry while i think maybe when they inquired if the judge had granted our best juror what were you talking about and i think it correct me if i'm wrong i think what was asked in passing with respect to the female jury was not what was said which is sastre was anything that was said impact your ability to be fair and impartial so there was no request  upis is a request that i call him i mean see the trial judge in this case spencer spencer considered the instant about a time explaining why he's not going to call the jurors so i'm not sure that that kind of i don't agree with you on that just because you request mr be excused that doesn't encompass necessarily that you want the jury to be questioned we've said over and over again that questioning jurors can fight something unnecessarily it could impair the jurors ability to go forward they could take what you're asking the wrong way it could should we should excuse this year and bring this woman and to find out if it had any effect on her and then the isle judge says i'm not running the plan yet you guys have a request but i'm not in the people and for this reason for this reason and for this reason it seems to me that the defense counsel really isn't isn't you know what when the trial and has indicated that he's made that his mind not to bring in the a what defense counsel says it doesn't seem to mean that anything are on the  it be brought in and that with respect to what you just said about it is that those concerns the iran are just expressed about influencing the jury's deliberations or learning about the course of their supposed if you said what were you talking about that could disclose what the details of the deliberative process would be a terrible question i don't think the the the sessions the place in the in the quarter against the t think that that would be that would be significant enough that it would be it's so i'm just i'm just suggesting when deciding whether or not to question jurors and what a cure for something that occurs like that you have to consider that in the nature of what happened and the judge to give an inch to talk to the judge did nothing the judge gave an instruction emphasizing to the jurors that they that you know i insisted that this happen and some discussion and you shouldn't do that so it's not like the judge didn't do anything just what we're saying exactly the same thing it what what i'm saying is t right yes good afternoon good afternoon your honour's may please the court my name is nicholas churchill oh i'm an assistant united states attorney in the southern district of new york i represent the united states on th i did in the proceedings below i'd like to start by responding to some of the points made about a legit germans conda the district court did not abuse its considerable discretion here in declining to dismiss your doors for legit misconduct it is not even clear that the alleged incident constituted misconduct and nd even assuming the wonder is legit statement rose to the level of misconduct judge has delved responsible comfortably within his considerable or broad flexibility in such matters as to whether there was a claim of misconduct here that the state and that goes to whether or not the jurors issues were deliberating that's far from clear whether they were deliberating in in the court or five hundred dollars pearl this court has repeatedly recognized not every comment germane make to one another about a case is discussion of the defendant's guilt or innocence that comes with any common sense definition of deliberations are the two statements at issue so what do you think and in substance i am glad he's handling it that way i don't want to see an innocent person to jail i do not necessarily reflect discussion of the defendant's guilt or innocence and back they reflect the jurors commitment to their oaths and the presumption of innocence but even if we were to to to take the view that that constituted deliberations judge cast l did exactly what this court has has asked district courts to do in such situations  he investigated the claim judge cast called in the witness and questioned the witness who overheard these alleged statements after after hearing from that witness requesting that witness judge castle called in the full jury gave a curative instruction that he was aware of the incident and said it was not to happen again and and that they were not to discuss it and then judge test l explain why he was not going to question any of the jurors even though none bianca correctly points out that none of the parties requested that any jurors be questioned judge castille nonetheless set a record as to why he was not going to to question the jurors and and judge bianco pointed out some of the reasons why this court has  posh right correct and and judge castille explained why he was not going to to call any of the jurors in because it's dangerous ground you never know what you're going to hear in fact if you go to that the portion of the transcript where judge pastel gives the cur possibly questioning a juror as to as to whether judge pastel abused his discretion by not by not questioning the jurors even even just the question that was posed by d s as counsel of did that did that conversation affect your ability to remain impartial this court has recognized that within the district courts discretion is a decision whether or not to question jurors to determine more about misconduct and it's united states versus  would i would note that the one case one of the cases that the defense relies on heavily united states versus haynes which was was a re mantra failure to investigate the the failure to investigate there was the also noticed the the alleged statement that was overheard in haines was was much different than the statement here and in haynes there were the jurors were essentially questioning the presumption of innocence in substance if they're on trial they must be guilty so  counsel to go to the sufficiency of the evidence here and starting with the ongoing or contacts conspiracy and just beyond go with with was was correct in pointing out the considerable evidence in the record that showed that the conspiracy was ongoing at the time of the murders else takes over that drug location mr cassatt completely ignores the evidence of mr collage who says he began working for mr drug organization after the murders and he works mr callao testified that he as mr bin tore also testified he after mr bin tora was shot at he left he wasn't around anymore he stayed away from the drug location and that testimony was corroborated by mr tomorrow abandoning the drug location simply was not in a position to observe the full extent of the casa's drug organization following the murders the judge correctly charged the jury here on the requirement of an ongoing arcata conspiracy and this is not a case of an accidental or mistaken killing this was this was cold blooded murder mr diaz held the gun to the victim's head said bye bye and shot him from point blank range if the thanksgiving collage the individual who set up the murders were facilitated the murders approachable diaz and a cast and they say keep your mouth shut the plans have changed so there was there was evidence in the record for that a that doesn't say how could you do that that's the wrong person he pays mr diaz for the murders so there was there was more than sufficient evidence here for the jury to find the jury to find out that this was an intentional kill street selling drugs themselves i think the inference that can be drawn to these guys on that block that's where they grew up and whether or not a pellet was involved and he was their source they were still trying to hold down the block for themselves in fact the two victims on the night they got killed it walked away from the block against the various is or over his protestations and would often get if they didn't care about working they already had the money they stole they had no reason to stand out on the street and sell drugs and risk getting arrest they said one hundred thousand dollars now to just very briefly piggyback on mr donovan's point with respect to the standard of you where the trial judge neglected to make any inquiry whatsoever and the debt defendant th amendment rights are implicated we believe that the review should not be of earp should not be abuse of discretion but should be dunno about the war here according to haynes and this court faced with the credible allegation of juror misconduct during the trial a court has an obligation independent of any requests from defense counsel to investigate and if necessary correct the problem court didn't do that ok and if you want to review it for played error because there wasn't a specific objection but i think your auditors are aware that judge casto commands a courtroom he said what he was going to do he broke no talkback turn on you like mr donovan that he should have remembered that witness she only heard three lines she didn't know when the conversation began she didn't follow them that's not the complete conversation that they had so yes i thought judge for not calling in it so you your rule is that any time anyone hears a juror talking about something and they say something that rim that mind in any way be connected to the trial that there's a duty as a matter of law to inquire the jurors  involves the calling of the of the jury is in order to determine when either even in the presence of one of the defense counsel specifically requesting that one of the jurors not be question nobody requests they not because you didn't ask the you didn't ask with regard to the mill jury you wanted the female juror question you did not want the military question did you that's too strong jet it wasn't that they didn't want it they didn't they didn't germ wants to acquire the other the judge errors as a matter of law is that it but i do vacillate from time to time but yeah i mean if you plan i really think you could bring them both in but just we but we don't know what the body is if you don't know what is judge if it's like i don't want i don't want to into jail because because he's innocent but i'm never going to allow any big deal or to be to be i don't know what the evidence is that's real