client is scheduled to surrender to a federal correctional institute in central pennsylvania on friday we hope that your honour's will be able to decide this bail application before then but if that's not possible we ask that you extend  surrender date until some reasonable time after you've decided that motion the issue that the bail application raises is releasing a single issue does our appeal on the merits raise a substantial question of law or fact and it's not our burden to establish a substantial question to show that we're likely to prevail on appeal simply that we have raised a substantial question and that if that question were decided in our favor it would require a reversal or a new trial now we have argued all of the substantial questions that we think people will raises in our briefs and what i'd like to do is simply highlight points that i want to make certain don't get lost and i'm going to take this a little out of order and start with the juror misconduct issue because there's a case that i apologize we did not cite in our briefs we cited below that fell on the cutting room floor  jews here where the judge began an investigation of potential church misconduct but terminated the investigation without thoroughly following up on whether in fact or misconduct in the judgment of  the rd circuit and what a rd circuit did in that case is said i have to reverse and order a new trial even though we don't know for sure whether there was prejudice to the defendant i have to do that because the reason we don't know for sure is that the judge terminated the investigation prematurely and we contend that that's what happened here and that here is in rezko a new trial is the remedy here the issue is there is such a stark conflict between the accusations of juror number six who wrote the letter and the testimony an interview with juror number three who deny the accusations in a letter that we can find it was an abus discretion for the court to make it credibility finding without hearing in person from juror number one journo ologists so that's jervis conduct on the main issue which is our contention that the judge failed to consider whether the conduct issue in the case was governed by the per se rule or the rule of reason i want to highlight two points st it's clear that judge total was troubled by the fact that in his judgment there was no precedent for the review that we asked him to do most of the cases we cited were civil cases and the judge was authored by the procedural posture in which he could make this decision and by the absence of any authority in criminal case law directing him to do what we asked him to do and i submit that under the miller case which this court approved in randell the very fact that there is no can rowling nd circuit precedent on this makes this a novel issue that is itself a substantial question under the test in miller and we think that the very fact that there isn't elling not compelling but there isn't controlling nd circuit criminal authority is reason alone to create a substantial question this is the nd thing i want to address on this is the government's contention the judge totally did in fact make the determination we asked him to and concluded that the conduct issue was per se if you look at his opinions during and after trial you will never find him saying that and in fact the whole thrust of his argument that there's no procedural mechanism in a criminal case to do this and no controlling authority directing him to do it are inconsistent with the notion that he actually did it but for sure he did not discuss any of our arguments about why the conduct should be considered under the rule of reason and and and even if he had the analysis and reached a conclusion it would be a ruling of law that your honors has been released on bail for the entirety of the case he's always complied with the terms of the judge approved him to continue on bail after the jury returned its verdict before work before sentencing and the judge both then handling this motion found that he's not a risk of flight or danger to the community and this is then let me let me get to my conclusion and wrap up quickly as i said the issue really is just do we raise a substantial question on appeal but we that issue has to be addressed in context if mr ayers is required to surrender on friday there is a high likelihood that he will serve his entire sentence before this court can decide his appeal he will serve that sentence at the height of a runaway pandemic the worst and most dangerous time to send a st time nonviolent offender to prison and at the very least he will serve the  st three weeks of that sentence in solitary confinement lots of questions with respect to the jury and its conduct issue what he has just total stated reason for not undertaking sensitive matter we don't want to make jury service any more burdensome than that otherwise it is and it's only with reluctance that you call people in to examine them after a trial has concluded now in our respon injected himself into the process so if ever there were someone who you could call in an interview and it would not be unduly disruptive i would have thought it was turned over sex and it just seems to me that that should have been done and judge total simply accepted it as a matter of credibility journal three's denials which frankly i thought were entirely self serving and that was the end of it all right thank you william but i  could i just make my final final point in addition to a sentence of imprisonment judge probably imposed a one hundred and fifty thousand dollars fine mr ayers has paid that fine he can get that back if he is successful want to appeal he can't get the eight months as mr cohen mr klotz correctly pointed out is that the court has to find there is a substantial question they all statute is mandatory in its language and it says that the defendant shall be detained unless the defendant shows a substantial question on if he or so with respect the duration of his sentence and health considerations are only factors for this court's consideration if the defendant shows a substantial question so what it was  result and the novelty of the question itself raises a substantial issue that might warrant bail pending appeal i would disagree that this is something this court has not resolved in the criminal context certainly with respect to been drinking copper said the federating is per se illegal and i think it's important to look at what the defendant is actually arguing here he's saying that my conduct should not be considered price opposition says as those are not considerations for the jury what the per se will does is say as a matter of law if you engage in price fixing or bad rigging among competitors that is as a matter of law anti competitive and therefore any factual arguments are whether it is in fact anti competitive or is in fact instead pro competitive or ill relevant and mr potts says that just total prior to trial assess the government's evidence to determine whether it is raised a genuine issue and of issue of material facts about whether this conspiracy that is not a procedural mechanism available in a criminal case which this court confirms i'm sampson that is a question for the jury to decide whether the facts as charged by the government exist and i the court will instruct you on what per se price fixing and to which was when it identified what the district court should have done but allegedly did not do the court this is the quote life was none the last of term and whether the object of the charge conspiracy was itself per se eight months and the fact that he's not a flight risk or a danger to the community the circumstances of the pandemic don't see with his way in favor of granting bail pending appeal i think that you only reach that question if you well with what her whether something is a substantial question is a fuzzy thing and we do we not look at the equities  in deciding whether this is a substantial enough question no i think in fact the mandatory language of the veil statute says that it not only be a substantial question but one that is likely to result if resolved in the defendant's favor and a new trial or reversal conviction so i just missed i think i think there's the technicality and then there is the  harm i believe the randell case randall case he's been from this court said that the presumption of bail pending post conviction serves two purposes both is what we've been talking about which is that you know dangerous individuals that released are one he would not and fact report to jail but it's also respect for a judgment a conviction and i quote miller once a person has been convicted  jail there is absolutely no reason for the law to favor released pending appeal or even permit it in the absence of the exceptional circumstances and i don't think that means that they defendant can leapfrog over the statutory requirements which are mandatory in nature just by putting ethical reason and the district court analyzed this question very closely below and said look there's mechanisms for health reasons for you to see compassionate release if that's what you what reason you gave for not interviewing also juror number six and this is on the opinion that page eighteen where the court said moreover even crediting juror number six is hearsay account that some information came to the attention of the jury in the form of and formation about to counsel such extraneous information does not rise to the level there would be likely to influence a typical juror so the court held that even if i believe everything juror number six doesn't reach the level required to have great relief therefore there's no need for me to enter in juror number six with you you would have no objection i would hope if we i mean it's supposed we decide amongst just put a stay on everything while we dig into this would you have an objection to respectfully we don't think that there's any likelihood of success on the appeal so you know the chase much better than we do i mean that's and it's a most motion that was brought quickly and it's lying here on top of a very full schedule i just think could be nice for us to get it right we would have jackets given the presumption in favor of bail pending appeal but obviously  understood i thank you both well we'll certainly rule in terms of friday before friday you know it's certainly possible we'll do s and saxons but you'll hear from us one way or