conviction at the outset of the trial you have a batson issue where the prosecutor exercised two of its strikes against african american sprecher perspective jurors mr williams also as an african american individual  and then at the conclusion of the trial we have significant issues related to jury coordination i would like to start with the batson issue and specifically the argument that the issue was waived by the failure to raise it prior to the jury being sworn in and we will concede that several circuits have adopted the sort of categorical rule that's proposed by the prosecution in this case but i would submit to you that this is not the of the ninth circuit in the contrary is contrary case it seems to me to be reasonable as as soon as possible preferably before the jury is sworn i mean i would certainly concede that to the extent you have the opportunity the reasonable opportunity to raise the issue before the jury of swore and that would be a profitable course of action here i don't think that defense counsel really had a reasonable opportunity and i will tell you why the process of  jury selection in this case involved passing a list of jurors back and forth starting with the government who had six strikes the defense had ten so you go back and forth the government has its final strike and with that final strike it strikes juror number twenty seven who is one of the jurors that's at issue here so at that point that's the all that's the point when you can observe some level of pattern i mean to the extent that you can observe a pattern with only four african american jurors on the panel but  that's when the batson issue is sort of joined and almost immediately immediately after that they publish the panel of the jury that's been selected and then they swear men so defense counsel really on that cold list being passed back and forth he doesn't have time to really absorb that strike think about it in the context of batson and i think the six circuits recent opinion and tomlinson although it doesn't it does take them more categorical pro choice doesn't make clear it's very salute federal trial in essence to have the the spine to say to the judge could you wait a minute while we think through the we need to evaluate strikes before you excuse the panel and before you swear in the new jury mean if most cases there is no passage alledge but if if somebody wants time i would think the judge would have to give them at least some time to think right i agree that would have been reasonable for defense counsel to do here i will say that the district court was moving very quickly in this case because he was simultaneously conducting a civil jury trial and so this was kind of an unusual circumstance in terms of i think the judge really wanted to move things along and was this exchange of notes back and forth the judge wasn't present for that right it was an exchange of strikes back and forth yes it was happening while the judge was given preliminary instructions to the jury the prosecutor exercise i think a disproportionate number of our percentage of his strikes against african american members so i think the ultimate composition of the jury is not really the question it's whether he exercised a disproportionate number of his strikes and whether that those strikes made sense and here we would submit to you that they they did not but i think by the same logic didn't the defense exercise i know you think that's moot but i'm just we're dealing with such small numbers here but i mean the defenses of entitle to exercise strikes on a racial basis any more than the prosecution right it's  so let me get back to this rule for you so if it's not strictly it has to be done before the panels excuse it's more flexible like you said with in a timely fashion so a short fashion whatever that is under this particular circumstances from a practical standpoint since that initial jury or those jurors were excused the poor it would have to bring in the other jurors assuming a pass and challenge to sustain it was i just want to know from a practical standpoint select a new jury now i will say none of the proceedings had been conducted yet so that's less of a burden than you'd have from what it was raised after trying many people were brought in for jury selection that's a big deal right so we're just going to have to declare the waste of all forty people's time for today right well your honor i think the same circumstance could happen even under a categorical role under some jury selection procedure so for example the tomlinson case you had a situation where they were selecting sort of many panels and dismissing the jurors that were not selected for those many panels and then ultimately have the complete jury and in that case it did it would have necessitated bringing in a new panel because of the way that jury selection been conducted nothing wrong with you know that practice per se but because jury selection process procedures vary so much from court to court i think that you know the same result could happen even under a category  and would you have to necessarily declare a mistrial couldn't you just couldn't judge also order an additional twenty jurors to show up for the next day now let's assume that it's some well i guess it depends if you have it if you in that circumstance you don't need to bring in an entire new panel will feel that once i'm just trying to get to what practical in terms of how it would work yes that's correct and you should spend some first the polling process we have a juror saying no judge didn't hear her say no in the individual polling of the jury and then called a sidebar from speaking with defense counsel below my understanding is that the judge just sort of said i'm going to poll the jury again he hadn't and he hadn't heard the no answer on the first go around and so i decided to just conduct a whole new pool so that was an opportunity for defense counsel really had input into the  the course of action that was taken and again goes through the entire jury panel hold on a second time highlights a numerical diversion division a second time decides again without consulting with counsel to send them honor i think my understanding and i was i was not trial counsel so i didn't actually observe what happened but my understanding is that there was not time and i'd like to point to the wording of the supplemental instruction that the court  give to the jury in particularly the last line so he told that the jury to continue with deliberations until you have reached a unanimous verdict not attempts to reach a unanimous verdict not use your best efforts to reach unanimous verdict but continue with deliberations until you have reached unanimous for not the silver and instruction which is the standard not the sole or instruction and your honor and i'm not necessarily saying that it would have been required for him to give us over generally speaking and i agree that no objection was made and generally would be abuse of discretion personal mental instruction where you have a number of different issues that lead to jury coersion some of which were objected to and some of which were not i have not found a case that's directly on point there under the totality of circumstances now i will say it plain there of you does apply at least to some of these issues in brass was a misunderstanding any discussion or as to how the district court should proceed the district or that trial council did move for a mistrial yes i would my answer was specific to the jury instruction and i don't think you specifically were lodged an objection to the wording of the jury instruction but i don't know for a mistrial and you raised the jury coersion issue generally speaking when exactly remind me was that objection of the motion for mist so after the court gave the jury instructions that immediately called for recess ran to attend to the civil trial and defense counsel told the prosecution at that point that he intended to move for a mistrial rather than try to call the court back from  the other trial that it was proceeding over they then they agreed to that if the jury returned a verdict again but he could move for a mistrial at that point so it was right at the beginning of when the jury had returned the ridge for the i'm going to zoom deliberation but but but  the issue was first raised when the jury returned to deliberations after the poll correct thank you and then when the judge hit the bench again that's when defense counsel made the motion for mistrial correct and there was and was there any discussion at that point of defense counsel saying how are we going to proceed now judge you know any suggestion that there be any questioning of the juror anything there was it was just assume to whether defense counsel properly have preserved an objection to the border of the jar he submitted an affidavit before the district court that says hey i stood i attempted to be recognized to make this motion that you at least question this juror further and the trial judge did not see him did not give him the opportunity to make that motion and so there was there was no specific objection at that point now after the verdict came  exactly what was said he said he had concerns about coercion of juror number one given the the polling in the fast return of the verdict and her demeanor that trial counsel believed like credence to the fact that she was a holdout juror you know so but he was able to lay out his argument as to why there was a problem with what had happened before that is  where she spoke well you know i guess he later asked this question about this she understand the question is she says yes i misunderstood the question so just so i want to get exactly what he said it all in this jury the juror one on the mistrial exactly what was said do you know i mean i know that he said she was adamant twice in her refusal in open court to support good morning may please the court my name is scott campbell i'm an assistant u s attorney and represent united states in this matter united states asked this court affirm the judgment of the district court for the reason such work in our brief but like to briefly address some bat issues and morse most pacifically addressed why this court should adopt the rule that we proposed the district court and the district court apply in this case and holding that up a bat's unchallenged that's not reason timely manner should be at least forfeit and by timely and jury instruction issues relating to want to continue deliberations as the batson united states assets but this court do three things first hold that a batson challenge is waived if not raised before it is forfeited rather if not raised before the jury is impaneled second we ask this court find that the district court did not plainly err in holding that the defendant had failed to state a prima fascia case that the government had exercised this print through challenges in a racially discriminatory manner and third we ask that this court conclude that the district court did not plainly error in holding that the that the government offered a race neutral but it doesn't have to be done immediately for two reasons your honor first it's this rule is fair i think that the ninth circuit rule gives too much of an out because says if possible and my case would be that as a factual matter going to judge hamilton's point as a factual matter at least the way we picture is in the eastern district was constant the defense lawyer has ample time either lawyer is ample time before the jury is sworn in to see the composition of the jury and that stems from one common sense notion no matter how a jury is picked after that last wreck is exercised and here the government concedes that under the pump of practice that judge that money uses and that in my experience most the district judges use the eastern district the government gets of course the customary six trikes t senate gets ten and the government strikes first the government strikes last so i recognize that in this case and another case it's coming out of milwaukee that you will see the government gets the last strike but the judge hamilton's point once the government exercises last strike the bailiff takes that piece of paper brings it back to the fence table and the defense lawyer gets a look at that and one might say well gee scott is that always the rule yes it is fly common sense the court through the bailiff wants to make sure that both lawyers understand who is to be on that jury so the defense lawyer gets to see that sheet of paper to make sure that when that jury is called up by the clerk that what is on the prosecution's juror list and what's on the defense of strike juror list is consistent with people sitting in that jury box as judge hamilton pointed out in his question if the defense or i meet needs more time after the government makes its last strike they can ask for it judge i need a time out here i just want to analyze the government's strikes and certainly any defense lawyers on his game and wants to look for a p if you should be monitoring this as the strikes were won in this case i think the jury selection process took about twenty minutes before the jury was pop the jury lists published so it's an ongoing monitoring but certainly after that last strike the defense lawyer has that opportunity to say time all i want to look at this carefully and see if there's any pattern that might give rise to an inference of a discriminatory pattern of strikes so this rule your honor is the ninth circuit rule gives an out if possible my argument is when is it not possible to raise this challenge before the jury impaneled my second argument judge whims of the simply this but there's such a huge advantage to getting this done a timely manner that the court should not given out we're not asking for a waiver here we're simply asking for forfeiture this can still be reviewed for planner review but i think it's fair to have a bright line rule that applies its forfeiture analysis because there are huge benefits to having a bright line rule that this patent challenge must be raised before the juries impaneled number one it would give effect to this court's longstanding rule that a specific and timely objection must be raised to bring about some challenges this court has not yet ruled as to when a bason challenge timely in the trial court but it has held that it must be raised in the trial court this court simply is not out of the opportunity as eight other circuits have to address the question as to what it must be time to raise in the trial court let me just let me just go back to one of the things juror but given that i filed that brief after a trial that no longer made sense it's something that i had simply fronted with the court at the beginning and defense counsel and said this is what i intended to do but there were two or three reasons for it judge number one is that we didn't believe that the batson challenge was preserved number part very troubling that you're honor i think upon reflection i could have done it better to that doesn't change the result in this case and i have four reasons for that i would like to argue most so are you saying no but this is not a practice this was just your ideal on th and we thought had been waived and we didn't want to waive waiver as happened in hernandez mcmath or the prosecutor said i'm going right to the merits and then that was the whole prima fascia case analysis we believe that until the defense offered some pri because defense counsel is obviously entitled to see everything but right i think it came up in the context of me saying the judge judge we'd like to just creep along this because we don't think we have to give a reason i limit my brief to the law and he said no give the facts two and i said i'm going to do number two the defendant did not object to this until his portrayal brief in three i don't think you've shown any harm because in any of that the defendant now has the benefit of having seen or reasons and still not offered any argument that our strikes were either somebody traffic tickets including operation after occasion that he couldn't recall them with individual blood here on this reason to see whether he should be struck for cause and that what you're transcript is in the record on appeal and  those tickets have been issued by the walky police department our principal officers and witnesses in this case were from waukee police department the case turned on their eyewitness testimony and we were concerned that this juror and your person sixteen or potential jurors rather would he had gotten so many tickets from them still than have his driver's license and still was on a payment plan to even get to drive the letter and the problem if i could just go for a moment i understand that's your position yes your honor the judge didn't disagree with  it on appeal however now that the defense has had a chance to look at those reasons the defense is called to those into some question suggesting that for example nobody else raised their hands about parking tickets when they were asked about law enforcement cetera and what troubles me is that it is it's very nice to have a credibility finding from the district court on this but if that is reached without the opportunity for critique for rebuttal by the defense to say you know you really shouldn't believe that judge because of these other in consistencies it's hard to treat that as a result of a fair process this is entirely separate from the waiver forfeiture issues but you are in the only focusing on the ex parte process shirt i agree that if the court were called upon to reach that if this court needs to reach the merits that the better process would have been to of allowed to a put those four before the district process also to the plain early view and the fact is that the defendant besides having sat his hands until after the jury was sworn in and the other veneer persons dismissed and deprived us of the opportunity to defend our challenge or striking of rule your person twenty seven on a demeanor based ground because she was out of the building then we couldn't call her and say hey did you give a big smile the defendant setting that aside the judge judge hamilton is still relevant here is why were we raise the demeanor of a strike and the defendant sits on his hands until the jury is gone we would like to have the opportunity to number one bring that juror in so that we could create a record of whether she didn't fact in this case miles at the defendant we'd like to have the calling people back in to justify strikes in that what you should have says no why did well we could still call our case agent i mean ordinarily of course these bats and challenges are handle before the jury is sworn in and if that person is still in the building my point is that the court would have the opportunity to have a quality set of facts for this court of appeals to review we could for example call them have a follow up with the potentially structure because of course that strike isn't final yet it's been challenged the court would retain the possibility of receiving that jerk so we could have a follow up why deal with a potential juror and if the court found the government exercised that strike a discriminatory manner if order are receding of the juror have to decide what what rule we adopt but and i appreciate that if there's the problem of facia case we don't get to the other issue yes one on the other on the other issue counsel i mean there's no time lost fact could be done more quickly to retreating to and camera well i think for one thing the jury had been picked we were ready to go with the trial number one so we didn't want to like the hearing on this to we believe what you it best to cause time to go in camera didn't well i mean did you go in camera on this on the on the jury selection issue we never did says after the jury is gone we come back to court and the defense as a judge i have some concerns i conceived i can understand for the government strikes of the three whites and one asian american but i can't understand the basis for the two strikes are americans and at that point we said judge we've got a jury it's too late there's no prima fascia case here mere speculation about why isn't enough to know showing a pattern and in that regard if i may just say that sophistic lee as the judge hamill to point out before so since yes the defense lawyer had raised it i think right around the lunch break with us and we just said sure go ahead and raise awareness he raised it with the judge after lunch as i recall after the break at least yes said judge view that the privatization cases made that's correct and the judge was persuaded by the fact that there were two african americans on the german jury number one and as we pointed out in our brief the percentage of after american jurors on the trial jury exceeded veneer panel and i did the math and i believe it's a fifteen point but thirty point eight percent runs when a number of near fifteen point three percent of the thirteen jurors including the alternate were african american so actually it was about brought to him no it was not for the verdict usually there's a sidebar and there was some discussion about the house and we proceed when we get that kind of answer and then there's usually both defense counsel and prosecutor have input on what the next  no all the rest said yes the judge didn't hear it quite obviously because he's about dismissed the jury we look back to the defense table and thought we have to have a side bar so we not are heads we merely ask for a sidebar judge we advise the judge a sidebar jennifer once said no and that the defense lawyer and the prosecution both wanted to raise but i believe that mr wilmot was the person who actually raised going to actually spoke with the judge and as i recall he asked for a second polling but he did not at the time say oh and by the way stop after g if jour says no again stop and he didn't say that and that's why we are getting are we've argued that this should be reviewed on a four put your analysis so the judge continue with the polling and at that point the journal once said no again the rest yes and the judge then issue gave that instruction no there was a request to discuss what he was going to say that's right but that said your honor we would contend that the continuation of the polling was not inherently coercive that is that it was not a reconvene about an hour hour and twenty minutes later at that point mr wilmot made a move for a mistrial but by that time the judge really knew that the jury come back with a verdict because the judge had the benefit of having received a note from the jury to the effect that we misunderstood the there any discussion of how things should proceed from a that is to determine you know when they get somebody misunderstood is there any discussion about perhaps pulling in camera the juror no or anything like that the first time we heard about that was i believe in his post trial motion where he indicated that he hadn't had the opportunity to raise that but the district court did not find that obviously persuasive the district court thought that the that the defense counsel would have had time i think he would have had time and it took several minutes this whole process to go down i believe you could object it and i would like to just distinguish this case briefly from a case of this court considered recently and i know your honor wrote the opinion on behalf of the court and that was the  case i believe this case is distinguishable from bletch if i made draw that distinction which is another minute or sell one minute is the time you have to take on negative five right now you're sorry but i think this is different from blitz because the court might recall and glitch the jury asked for permission to leave on a friday afternoon at three thirty and when the court said keep deliberating i believe that came down about three twenty and could have given the jury the impression that they had to come up with a verdict by three thirty if they wanted to leave on time it's like cheney the case that this court decided in seventy think like seventy four where at about midnight the judge said ok if you don't have a unanimous verdict soon we're going to reconvene at nine thirty and the jury might have gotten impression to deliberate all night that was not the case here you know they've just been given a silver instruction only three hours earlier easy trial short trial and they'd only been out for bond hour so for all these reasons your honor as we i apologize that i created an issue by submitting that document camera i appreciate the additional time and i note that i had promised judge williams that i would find specifically where the motion for mistrial was made in the record that's an apt one he won through forty three juror who declined the handling of a firearm during the course of the trial the actual physical firing that the jury publish to the jury and one of them to feel the weight as it related issues germane to the trial it is this jury when polled two times indicated the guilty verdict returned by the jury of twelve as signed by the four person i've seen the verdict i seem it is in proper form was not her final verdict now looking at the advisory committee notes to thirty one d and i will tell you all with candor judges is a first for me as i'm educating myself since this happened indicate the purpose of individual polling is determine certainty that each of the jurors approve of the verdict overturned that no one has been course during duce to sign a verdict which he or she does not fully assent you know how the verdict got signed by the foreperson again assuming in proper form under these circumstances i think is a mystery to everybody i mean there's very speculation additional scenarios regardless of what happened juror number one's demeanor suggested when we were polling that she was adamant in her refusal in open court just a bit to support the guilty verdict i noted some but not all of the balance of the jurors appeared by their demeanor frustrated with the process juror on the second go around currently responding yeah when asked the second time about a verdict yet another juror softly indicating yes during the second go around clearly judge i simply under these circumstances have a concern about a war zone on the part of some of the there are stories or upon juror number one not even years not outside the presence of the other jurors correct not in that that motion that was only an issue that he raised by affidavit after the fact saying he had stood to be recognized and didn't have the opportunity to raise this but i tend to so on the just in terms of the timing i want to make sure we were clear about how the bats and challenge was raised because i think there may have been some confusion about what exactly happened at the district court level so it was raised immediately after the court recessed following the jury being sworn in and the court said i think this is a nonstarter because two african americans have been impaneled on the jury  jury is sworn and mr campbell said he went to lunch and then this came up are you suggesting that's not an accurate description that the jury was sworn and that's  to you immediately after recess or lunch or after lunch yes with you know before lunch or after lunch just will not make his record he makes his record after the recess after lunch but he does bring it to the court attention immediately after the court calls for recess so the court's not in session he he give meaning defense lawyers limited says that he will speak to the issue after lunch and correct that with the record now correct serves well i think it had he been intending to conclude that there was not a prima facia case made he wouldn't have required written submissions to be made later he would have just said this is a nonstarter i don't think you've stated a prima facia case and move along so i don't i don't know that it's fair to say that he just has summary statement which i think frankly is entering iranian statement of law was a determination one where another on the prima facia case and he actually says in his opinion that he thinks it's a close call whether the prima facia case has been made and so that to me is inconsistent with his earlier statement that this is a nonstarter if you was unclear intending to conclude that no prima facia case had been made that one so if i could just finish  at least the summary of the proceedings just to clarify the record so the government says nothing at that point the court moves on to trial proceedings calls in the jury and my understanding is  only before closing argument that this colloquy about well the government needs to make a written submission on the bats and challenge occurs and so that didn't happen until basically after a trial run and so the the ex submission was not something that came up at the beginning of the trial as is my point on that and so to summarize we would ask that mr williams conviction be