in jury deliberations the court misapplied the standard which the government and i agree that the standard should have been informed by the local rules the supreme court on page eight sixty nine of pena rodriquez which came out just a couple of months before the trial in this case  says that investigations of potential claims should be informed by the local rules and professional conduct rules of the various jurisdictions local rule twenty four city of the eastern district of virginia where this trial happened said that you needed good cause to have a motion granted to talk to jurors after a trial and in this case my my colleague trial counsel went directly back to the courthouse and informed the assistant united states attorneys of the so statements made by germ artan what do you do with the trial cour intertwining errors i do not think that it was a finding of fact there the only fact in this case right now is the affidavit from from the paralegal in our office who said that the one statement is that you have you're only doing this because of race the other primary statement is it's a race thing for you those are the two most important statements that germ martin made judge the gist judge did not find that these statements did not happen that would be a disputed finding a fact finding the factual finding is these statements exist and then the question is a legal question is the allegation of these statements good cause under local rule twenty four city to investigate to the jurors and so the district judge that made to sort of intertwining legal errors in applying the good cau under your not your into the court's decision and i don't know if it's gravelly or gravely let's go gravelly under gravelly good cause requires only a threshold shelling it's a very low bar and so in this case the existence of germ artin statements voluntarily offered to defense counsel when we couldn't ask follow up question is the threshold showing i mean the court in pain your honor it is also says not every offhand comment indicating racial bias on hostility were justified setting aside the no impeachment bar to allow furthe judicial inquiry to qualify the statement must him to show that racial animus was a significant motivating factor in the jurors vote to convict now so the question then becomes an offhand comment it's not it would seem to me that you know a trial judge who is close to the trial and the dynamics of the trial and has had some interaction with jurors or observed interaction with the jurors would be revered classic discretionary call on the part of a reason a second inner twined legal error of the good caused and i think that gets to the motion for new trial phase that we never got to all we're asking for is to interview the church this is an investigation stage and so the district court required us to prove a painter rodriguez violation of racial bias infecting jury deliberations in order to investigate whether or not we could see whether there was racial bias i told mike so i understand your point so you are not arguing that you're making right now right now you're saying that doesn't rise to the level but that's not the question under twenty four c but i think the way the district court was approaching this was look under twenty i'm not requiring you to prove anything you don't have to prove that the white lady actually said that you don't have to prove that white lady refers to a juror and that the two of you are the two black jurors i'm going to sort of go if you're right this threshold level fine you've made a threshold as sort of giving you all of that great you all those inferences that you might be able to clear up if you talk to him but even with all those inferences going your way there's just not enough here so i guess given the low part of bar a threshold showing that there was overt statements about race made from one juror to taking all that it made from wonder to other jurors that given the allen charge given juror williams request to be excused from the jury given everything else that the limited facts we do know without being lodged an investigation i am not at this point saying that that would be enough for the motion for a new trial though again i don't want to say that for any future litigation if we get that far it's certainly a threshold showing to the language from from gravelly says that it should not be a fishing expedition in that case there was no allegation that was an tell me what exactly is the standard that you are proposing for when a defendant is entitled as a matter of law so it's an abuse of discretion to a good cause interview of a juror under rule twenty four c regarding racial bias if it's not the same if it's not that you rodriguez they say that a juror voluntarily coming forward is a backstop right that that is a way that you would know that that's happened that's what we have here is what you're martin did in a jurisdiction such as the e p a where we have this local rule so in a world with local rule twenty four see where a jerk provide information that overt statements directly about race were made in jury deliberations a just report must allow some form of an investigation of that claim we're not saying whether it has to be a hearing whether add to the burdens of jury service so post post verdict collateral interrogation i don't know is going to be a discouragement to people coming forward and serving on juries which use is something i think every judge in the circuit wants to encourage which is making jury service is as  good an option as possible and and not unduly burdensome and that's that's the danger and so i race aspect of the comments you have to be able to investigate what else was said and what effect that had and so again this distinguishes our case from baker the case that my colleague from the u s attorney's office cited in the twenty j letter last week what about the fact that there was no overt out need to hear the statements right out of the supreme court the statement must tender so that racial animus was a significant motivating factor in the jurors vote to convict and seriously cold how can we show that we're supposed to overturn a district court's assessment you know in this regard the only thing i'm asking the court to overturn is the denial of the right to investigate the claim we're not saying that we have made  s or animists directed to the defense what would be your response to that i think that jurors pressuring other jurors particularly of the same race or of any minority race so i think we have a not about the defendant which is analogous during the course of jury deliberations the liberations could be heated certainly sir and if so when the jury or also told your attorneys we worked it all he also said i'm sorry we had to do that i think this is all requiring further investigation because we don't know if that means that they caved to the racial pressure not just the board moves the investigation moves the bird which is all are asking for your honest is the right to investigate our claim can please the court caitlin cook and brian samuels on behalf of the united states i would like to start by answering the court's question about when the united states first learned of the request to interview jurors and that was on direct appeal on the filing of the docketing statement in this matter it was not disclosed in till it was appealed to this court i think the questions before the court today underscore a simple point and that is that context matters will standard of review here and here the court did not prevent all of us a geisha and the court's ruling was that the defense could not conduct one sided juror interviews in secret based on the limited facts that it accepted ex court can be assured that that was the scope of judge allen's finding because of the context in which it was made since the moment the verdict was returned the quote the defense repeatedly assured judge allen that there would be  motion for a new trial or mistrial to include in its motions to withdraw and the first motion to interview jurors and the court clearly anticipated that motion in ruling on the matters before it in the motion to withdraw the court reserve's decision about withdraw on the basis of defense counsel having witnessed this interaction until the filing of a motion for a new trial something that the defense had offered in a footnote to their brief in the ex parte context the court declined to draw inferences and specifically the possible equivalency between racial statements toward another juror and racial bias of the defendant in an ex parte setting because it transcended the scope and nature of those filings and she declined to make further findings without input from the government and then with respect to the alternate alternate request to interview jurors thousands the court rejected that very literal reading of the text of rule twenty four c because it was made in an ex parte setting and despite having done that the court left open the possibility for further proceedings twice testifying in her final order how such proceedings were to be conducted under seal with service to the government absent written good cause for further  parte filing this cannot be an abuse of the judge's discretion particularly for a judge who sat and observed this jury for three days answered numerous questions from the jury that evinced their careful and conscientious consideration of the evidence presented specifically they asked for a password to the laptop there were some questions about accessing the different jail calls that were presented and despite her own awareness of the timing significance of what occurred at trial including defense counsel's concerns when mrs williams asked to be withdrawn that perhaps she may have been a holdout and that she was a minority and then after the jury returned the verdict and they were polled and everyone individually affirmed without raising any questions of bias or pressure in the deliberations judge allen was again aware that defense counsel was concerned about how deliberations may proceeded after ms williams request was denied and with those awarenesses she went back into the jury room and interacted with the jury before before they were excused and there's nothing in the record to suggest that there was any concerns raised to her in that context and so with with that knowledge with that experience she's faced with these ex parte requests and absent any valid justification for presenting them ex she repeatedly entertained them and then after finding no indication of racial bias nevertheless left her open for defense to move further which they chose not to do here and i will i guess what she found right  s no indication that any juror relied on racial stereotypes or animists to convict the defendant and i totally get that the kind of the kind of racial issue that was raised in this case is very different from being a rodriguez because it seems like it's if we draw all inferences in favor of the defendant for just for a moment and hypothetically that it's sort of between jurors as opposed to directed at the defendant but there is language in pena rodriguez that suggests that you know this is a problem too when some jurors views are being discounted during deliberations because of their race and painter rodriguez does talk about overt racial bias casting serious doubt on the fairness and impartiality of the deliberations or the verdict i mean the deliberation that's not how deliberations are supposed to work injuries where the black jurors don't get listened to because somebody thinks you're you just think that because of your race so why isn't that enough to at least raise some issues for us i think although the supreme court did acknowledge those dangers there was a real there was a countervailing consideration here and those were the very important policies were ok don't know impeachment but then let me ask you about that too because of the concern behind the no impeachment release one of them and definitely the rule behind twenty four see is juror harassment i mean we've got one juror in this case who obviously is willing to talk so willing to talk that he approached defense counsel and the only question is can you let a phone defense counsel talk to him for five minutes could be under the supervision of the judge you could have to tell him first if you don't want to talk to us anymore you don't have to just give us five minutes so we can figure out what he meant we were not allowed to even as a follow up question like say well what's going on here why can't we have that there's this juror is not going to feel harassed this jerk approached us i think your honor's question goes right to the core of the standard here and i think the court did apply the standard that defense counsel is seeking she in her own reconsideration look to good cause and the thrust of showing the threshold showing must be a threshold showing of a statement sufficient to set aside the no pietschmann will and here in striking that balance the supreme court said to qualify it does have to show that the statement was a significant motivating factor in the juror and is just to convey just as one more follow question i'll stop so opinion rodriguez it certainly says look there's all these local rules and we get they're going to play a rule and then it says kind of the safety valve for that is some times jurors will come forward and that is how we will solve this problem that there might be restrictions on the evidence available to make this case because sometimes a juror will come forward but that's what happened here and then to sort of double back and say even when a juror comes forward so you don't have to worry about harassment you can't even ask a simple follow up question what exactly are you saying it seems like that at least  threatens to undermine any meaningful in fauresmith of this pinger rodriguez standard that's my concern and i prefer your honour's concerned i think the supreme court in affirming the limits on post verdict contact would not you know it doesn't go so far as to say if you're approached and the rule says you can't contact set it aside immediately ask the question so defense counsel made the motion we disagree with the manner in which it was made but here the statement as it was reported was there was this the two of you are doing this because of race and it's immediately followed by we worked it all out and that has to mean something nothing that was presented before the district judge gave that portion of the jurors statement any meeting and so i think she was right to say this isn't a statement that exhibits overt racial bias toward the defendant suggesting that it may have resulted in his conviction on an improper basis and when it's directed toward another juror it comes with this assurance that the juror was able to work it out with the other jurors in deliberations and so i think it's not an abuse of discretion to reject a possible equivalency particularly in an ex parte setting i would submit to the court here there was limits on juror contact it affirms the principles underlying the no impeachment rule and so in that context you have a heightened need for advocacy to ferret these things out to determine whether the point out some districts have a no contact rules on districts no rules on district permit contact with jew or so across the nation apparently we have a wide variety of approaches in terms of  these things came forward in a jurisdiction with a lesser were strict the lawyers might be able to approach and at least ask questions but in your jurisdiction because there's this good call standard and again ask anything the lawyers behaved as they should have they were approached they made note of what they were told and in the inquire further without seeking permission of the of the court is the fact that different jurisdictions have different standards in any way or should it in any way affect our evaluation of what's a problem in every show i don't think that it should your honor in light of the language from penn or rodriguez that affirmed the application of limits in the the court by virtue of its review of those rules and the districts that allowed impeachment for these towards sorts of statements and those that did not were clearly aware of this  impeachment rule more specifically we're looking here and they certainly have a local rule that has this good calls standard in it and that our first step in the in the halls i believe that it is your honor in the court in th though in interpretating what good cause mess look first to gravely which was an older opinion based on improper bias but in order to show good cause for juror interviews there there had to have been a threshold shelling of improper bias that is a reason under six o six the to set aside the no impeachment rule here then in response to judge terrorists do you or maybe i missed your answer greer disagree should the jurors have been deliberating on the basis of some type of improper racial animus not necessarily directed to the defendant but liberating all as that i think it that there may be a case in which that argument could be made i would submit to your honor's that this is not the case given the ambiguity of the statements and i think that the the threshold there is the one step by the supreme court that there has to be some indication that as that came up in deliberations it was a significant motivating factor to convict that's the reason been considered balance that the supreme court struck between the need to protect the sixth amendment right to have an impartial jury trial and the need to protect the integrity of our jury system which the public confidence and trust is a compelling interest there and the court struck that balance in a in a narrow way opening a door that has may not be listened to that seems to be true or unlike them a context where decisions are made by a majority vote seven someone says we worked it all out we collectively worked it all out that's the way a jury is supposed to function yes  presumed to follow their oath and in this case the court from flawed tear through jury instructions through answering multiple questions very carefully here especially and why deer in the jury instructions made clear you're not to have formed an opinion about is not dispositive it's not your honour's but i do think it weighs in favor here when you have a juror yes he's made a statement the court said it's pertaining to race but she looked to pena rodriguez to say well is pertaining to race enough no it's not because not every hot offhand comment not just not every off yet but i feel like there are two questions there right one is is this statement if it proves up enough to get you the the relief you're entitle to underpin your rodriguez does this statement mean pain you're rodriguez and as i understand it although your colleague is kind of preserving that issue and not conserving not conceding it that's not her main argument today her main argument today is fine this one isn't good enough for pena rodriguez but boy why isn't  good enough for us to talk to a juror who has indicated already his willingness to talk to us for five minutes to see what else was going on in that jury room because there was something there this is not nothing it's not a fishing expedition there's a juror who is concerned enough about racial dynamics to come forward to defense counsel to talk about it that's it's somewhere between pena rodriguez and zero and why why isn't that enough given the minimal i just don't know what is on the other side of the scale when you're dealing with a juror who has indicated willingness to come forward what just practically speaking what's on the other side of the scale then i think what's on the other side of the scale is the consideration that it has to be a statement that just practically speaking on the one hand i just totally understand your argument i really do i and i am i was never a trial judge i'm actually trying to work out what is the big deal here if on one side of the scale you have something that let's just concede or assume for a moment it's not being a rodriguez level but it is more than zero it is a juror sufficiently concerned about the racial dynamics during deliberations that he came forward to the defense lawyers to talk about it what's on the other side of the scale if a district court judge said something like look just this one juror only the one who's already indicated a willingness to come forward i'm not letting you go on some fishing expedition with other jurors just to find out what did he mean is there anything more that he wanted to tell you that's it five minutes you know whatever other conditions one can imagine tell him first if you don't want to tell us anymore you don't have to i think first and foremost actually what's on the other side of the scale is his assurance that we worked it all out as judge welcomes and observe the collective we the jury you know the statement but what's the big i totally understand why you think that might be an excess of caution but say the defense counsel wants to know what do you mean by we worked it all out do you mean two of you are just like never mind we want to go home or do you mean something else and i think your honor get at the point that judge wilkinson made with my colleague which is it is the investigation it is the interrogation  that brings about the harms of the no impeachment rule and what you can jurors who have already expressed a willingness to talk about the matter i think your honor that the and if you tell them first if you don't want to talk more we're out of here this is only with your permission i way there will be question after question and their answers were already questions and it will be a lot of these things are going to be  harassment and they're going to be badgered and did say the court can control the court does the court has an awful lot of crimes to do with this is opening the door to badgering and then the juror goes back and tails their friends and their neighbors and say look i gave my gave of my pam to participate in this trial and to down and then you know you build up i can tell you with this kind of stuff you build up in the community a resistance to jury service and that's the whole purpose of than no impeachment rule at this simple notion that at some point a jury's job is complete is done you render just civic service it's very much appreciated and at some point you can get on with your life rather than hearings afterwards which i promise you will not be five minutes it will be other questions raised if it is it's view that they did so on an improper basis and after that seed is planted at the truth it's hard to know so much as the person that's going to be doing the questioning is an advocate yet and that person is going to come to that question with an extra a man about the verdict they're angry about the verdict they're going to try at all costs to make it racially tinge and they're going to they're they're coming at it from the standpoint of the adversary system and as think you are so i have five quick points that i would like to make in rebuttal with regard to the statement we worked all out that has got a lot of attention i would like to add that german also said i'm sorry we had to do that i think without further investigation which is what we're asking of the other statements made however with you know that you have you're doing this because of race it's a race thing we were i'm saying if you if you want to put weight on we worked it out to be there's no problem here i think that it's counterbalanced both by the fact that he felt the need to approach need to make a preliminary showing but i have been so many situations where something has been advertised to me as just a baby still and then it gets and deeper and deeper and deeper and pretty soon steps so call baby steps that you know how appalling one and all and change the nature of their jury service and the danger here is that this kind of thing is going to you know it's going to be litigated litigated requests was very limited and the court made that call and pena rule success six gives way to racial bias and so must rule twenty four that's the whole thing opinion and that's the supreme court has made its decision and we'll have to figure out how to apply should not change my client's ability to investigate the potential constitutional claim and so much as will success six gave way so much will twenty four if we can make a threshold showing that it's not a fishing expedition this is a colorable claim and we had a right to