sign so that your counsel don't have to pull you down you can go i had your honor and ms tries is brief the issue during misconduct is raised and the question for the court is whether there was enough of a suggestion of either misconduct or racially biased juror church choir further factual development either by way of an evidentiary hearing more by allowing investigation by trial counsel and i believe that the answer is yes we don't have a lot of information at this stage because just a court judge cut off that investigation even though according to the uncontested deprivation of shondra wife the jerk juror bailey said to her i don't want to give you my contact information you know have the defense lawyers contact me through the court court judge did not give that information or allow defense counsel to obtain that information and so they were not allowed to follow up on that information she also did not bring juror bailey and or shondra white into the courtroom for counsel to to at least have them in front of them to ask questions at a hearing and i think that the precedents of this court make clear that some factual development either by way of investigation or by way of the he occurred in a row and the last one was where she said she talked about her religious beliefs and and she was the one that initiated it and they were there third there appear to be a fairly lengthy discussion there and then i think before she was counsel for at least two of the defendants i think made some comment about well i'm concerned that she might be feeling some racial pressure or whatever or something along those lines so then the judge called juror bailey back again didn't say is anyone making racial epitaphs to you or putting pressure on her that way but after i would say an open ended question are there any other way since are you feeling any other question it's clear that it doesn't really quite cover all of those eventualities the question was is there anything that happened in the jury room in the jury room in terms of anything that was said or done by any of the other jur towards you that brought you in here today with this concern and at the time that probably seems like a fairly complete question but what we don't know is where the things that happened outside the jury room where the things of the jurors were saying to each other were they making the kinds of racial jokes that have been frowned upon by other courts in this country and that has led to factual element that the question was not phrased told by you're not saying that ok but with no evidence of racial jokes or anything i don't think it would be proper for a trial judge to say well did anyone make racial jokes to you know absolutely would not have the proper i don't think at this juncture which is why it is that the problem in this case is that the court relied on some type of focused investigation or hearing just to put that to rest or to find out that there really was a problem we don't know standing here today was getting serious problem or a minor problem what did she mean because from the declaration but if what she meant by that was she had a group of jurors who made comments we don't know but if that had happened that is not necessarily barred by six zero six b if what we discover from that is that there were a racially biased juror sitting on the jury because that was recognized in henley evidence of bias of the jury is something that they bring to the jury room it's not something just really that it is their deliberative process the sixty would not have excluded that evidence so this court actually not dressed addressed this big issue is a racial bias in the jury room actually you know applying that to the fact there would have been a different result as to some of the defendants so you know i guess it isn't a court entitled to say ok i saw you testify at the trial you know i saw this juror at the time i saw the demeanor of this juror this juror was called wanted to talk to me all of  i know i'm taking a little bit of time so i won't i won't have caused a problem but i think this is an important issue and basically said hey this juror initiated the contact we gave this juror every opportunity to say everything that was wrong i believe her she w counsel did not rule out the statement that she allegedly made for a white so i don't know there was no credibility finding in terms of whites testimony at the time of trial and even had there been that doesn't mean that everything she says now mean i don't think that the court is allowed to go to that point and say well i thought she was not credible during the trial so no matter what we ever see from her in the future we're not going to believe it i think that we have to look at the declaration that wa submitted and i argue in my brief there are some indications in that declaration that that support the credibility of it or the fact that she said this statement of i don't want to give you my information you know how have the defense lawyers i technique get the information from the court that seems having done this for a very long time it seems it's exactly like something a potential witness or a germ might say if they were sort of confronted with what might have been a slightly awkward situation didn't didn't develop that idea that she was not telling the truth when she said determined to just use the documenter to be could be a judge in this case and because jihad was great religious views she didn't want to put  one other thing that was at least of interest is the fact that she was clearly deliberating and sending out notes intel the later in the process and so this idea the idea that suddenly realized that her religious views prevented defendants because it was somebody at least with respect to this israel who could have shown that she was not involved in this conspiracy the primary evidence against her related to some tape recordings and this and the confidential source could have shown that mr israel was not involved in meetings or phone number wasn't called a whore her automobile wasn't seen at various meetings and it's our contention when you look at what the legal standard is if that evidence should have come in and it would have just been corroborated than additional evidence to show of her not involvement in this alleged conspiracy it's true that there is a limited privilege in keeping these sources confidential but you have to balance the extent to which disclosure helps the case versus the government's interest in protecting or not have a key element of her defense stipulated away in a piece of paper somewhere so it's always more important i think you have the agent somebody who's on the ground involved in this investigation come in and say she was involved rather than a stipulation automobile a whole series of things that relate to that point your honor that was the primary author of proof serious drug case that if there is going to be any benefit of the doubt it should obviously deal to the defendant with respect to with witnesses can be called i'd like to address just lastly this issue of the government expert who testified regarding drug phrases like to just deal with that for a few moments it's our contention that that there was an insufficient foundation to allow that testimony to come in and there were testimony went on for that extensive i think the transcript covered approximately one hundred pages and there were numerous objections and there was a void dire of the witnesses but the point that i would just like to point out without going through i mean i've cited into the brief there's numerous portions of the record that deal with the specific questions and some of the general questions and that's pretty much contained  roughly in page thirty five of the briefs and thereabouts and the key here appears to be with what methodology is an expert going to use when he reconstructs a drug conversation and i just i cited on page thirty five and thirty six of the brief as to the to the questions that related to the methodology because what happens in these types of cases is you have an expert thank you very much thank you for any other questions or anything else it doesn't appear to be thank law i believe so ok if there was no evidence of rush to the court about any kind of that standardize inventory test employed by the police department secrecy of jury deliberations and that's an interest it's also very important it's been recognized for more than two hundred years as an important policy consideration this court itself and assigning some cases we went to great length in ascribing the importance of the policy that set all right so must i lot of times when we have motions after to examine a juror it's a juror that decided kelter innocence is said sure that asked to be removed and other jurors went on juror was to come back here and make some statements about what occurred in the jury room before she left the next step is to go bring out the twelve other jurors and ask them questions about their deliberations that occurred after she left and clearly there has to fall within and all i i believe you can recognize you can read will six zero six according to its plain language and if you do so jury deliberations what goes on in the jury room would be clearly incompetent would be excluded you can also demonstrate a sixth amendment violation if you had a biased jury racially biased sure that's the standard sixty sixty goes to the type of proof that we are going to allow something completely different where i defend it could come in and prove that the evidence they had nothing to do with went on the jury with for example there was a case that involved in a witness in a trial this was the williams of the price  case written by now justice alito next case you had a witness who overheard a juror say something racist in the courthouse lobby and that evidence could be brought in outside six of six to demonstrate i think the kind of six a violation of the court just alluded to so the government's basic point is that if we read six of six of the in keeping with its two hundred plus year history if we read it in keeping with the its legislative history united states hungary's the house passed a version and then it was changed by the senate and the senate version clearly indicates that was meant to exclude the very kind of information we're talking about here if we're going to explore all of that and what should we do well i think we have to decide whether or not there are couple things we can do we have to decide whether or not something i've said in the jury room where they're not that reflected outright racial prejudice or give more information  not necessarily not necessarily whatnot but i think there might be situations potentially worth a racial epithet was used in a in a jury deliberation then that in and that itself might mean it's perfectly ok for the government to say that deliberations tween twelve jurors after she left pressure put on her by the other jurors and that's clearly incontinent evidence under six or sixty the other possibly a possible scenario is that when she went into the case you not heard any of the evidence she did not has to hear a strong was against defendants maybe in her mind she didn't think she was ever going to have to pass judgment on somebody that she could vote to acquit but then when she got into the jury room after she had heard the evidence after she heard the views of the other jurors she decided if she was going to stay in the jurors you going to have to vote guilty she maybe in her mind and in her good conscience she could not vote not guilty considering the evidence that's just as likely scenario where do you get that idea from what you said well she said that in the declaration she court that she is unwilling to decide the case based on the facts and law that she's going to make her decision based on a completely irrelevant ground i think there are cases specifically to deal with that situation i can remember you say i'm sorry deliberations they can't say anything about what happened after she left in fact it's fairly clear that the jurors continue to deliberate after she left they asked for evidence they listen to tape recordings they need specific findings about a drug quantity this is all after she what i think it's the bass case that was mentioned earlier i think firearm after a prior drug related felony the jury found him guilty of that as well the government filed an eight fifty one information which is then made him eligible for the twenty year mandatory minimum  under twenty one u s c eight forty one so his twenty year mandatory minimum sentence was based on the jury's finding of more than fifty grams of cocaine base the government's finally the fifty one in information and the jury's finding that that prior conviction was in fact true there appears to be an issue that well about whether or not the cocaine base that the jury found was in fact cocaine base or crack or whether it was cocaine in the powder form  into a hard form and then it can be cracked that's where the term comes from it's cracked because it's hard and then once it's in this hard form it can be smoked by contrast you have powder cocaine that  rock solid form is what cocaine based refers to typically there are pairs to be some confusion in the cases over whether or not cocaine based could also include cocaine in the powder form but all of the evidence at trial was that the was crack and then the expert witness testified that the conversations that were intercepted between mr cooed and mr page also were referring to cocaine based in the crack form which is also referred to  it is used to refer to cocaine in that form but in this case it was fairly clear that when referring to cocaine base it was referring to kochi based on the crack or rock form into detail so we really do have a very limited record unfortunately from which to make these very important decisions i think that i would invite the court though not to reach all of these very important decisions in this case i think that a remained for factual development is what's important here imagine a juror vallely walked into the courtroom i mean we don't know what happened she walks into the courthouse and she heard some jurors talking it's just you know they're going to be jurors so we're not injure deliberations and she heard the make comments and she didn't mention it in the jury room she realizes maybe they did really mean those horrible things they said or maybe i didn't mishear that and when they start putting pressure on her she draws that inference and asks to get off we don't have enough facts to know if there were racial things that happened during jury deliberations outside of true deliberations before the trial started just that minimal amount of factual development is what needs to happen in this case to assure ourselves that these defendants received a releasing her i think that the u s attorney addressed that correctly which is she does have to be willing to base her verdict on the evidence and if that had come up at the time the judge would have been i'm sure she would have  you understand my instruction my instruction is that you must you know reach a very least on the evidence before you can you do that and at that point they would have had that discussion and if you said well yes i can based on the evidence i can't bring myself to convict these defendants that would have been a very different statement then i can't do it because they're black and we don't quite have those facts and we don't know that may turn out to be what happened it may also turn out that there were some articulate racist