it please the court good morning my name is billy gibbons i represent cornell pendleton i know we've we've raised a lot of issues in this appeal but what i'd like to focus on today is the juror issue of the comment made by the juror by the  bernanke and the money laundering dollar amount calculations which i think the record is somewhat unclear on and you do not waive any issues that are in your midst of an aside and i'm happy to answer any other questions but the  respect to the juror the alternate juror reported to the court that during the trial on the day that the government rested before the defense presented its case that juror number nine said mr pendleton wasn't acting like a man who was about to go to the federal pen he brought that to the court's attention and the district court then decided to interview all of the jurors and join over nine denied making that statement and said all that he said was i said i said i thought he was it seemed relaxed for someone who was on federal trial but the alternate juror adamantly stated that he heard him say federal pen  he said he definitely said pen as in penitentiary he specifically said federal pen and he also said that it seemed as if in his mind the defendant was an innocent and after  yes he was he was but but i think what's important here is what was actually said and and i do think it's worthwhile welcomed it was disputed what he said it was yes or yes or it was kind of i grant you that the comment is troubling if in fact were it is true that the comment was made but i understand it two jurors dispute that that that narrative correct correct is that not the district court's certainly responsible in the first instance if not in the final instance it is but i think what's what's unusual about this case is that ultimately the district court said she believed everybody and and i thought and i think that it's worth looking at it that the entire discussion of this is in the record at twenty three fifty one to twenty three seventy four and this is where the court goes through her findings and initially the district judges first reaction was and then and this is specifically what she said if i were making a credibility call i think the alternate was being honest and then she went on to say that doesn't preclude everybody from being honest i know it's an honest mishearing it's true that that is true judge but but i think what we have here is where that where the dish of court left us is in at best a state of equilibrium between you know what was said and because she didn't she didn't she didn't make the credibility call between these two you know the alternate juror and juror number nine and i think that's what you have in a lot of these cases where the courts do get great discretion about making this credibility calls like in collins which is one of the cases of the government sites in that case the district court said it didn't believe that the that the juror made a negative comment during  and here we have where we are is it even today we really can't say and we don't know who we don't have a judgment call about what what was said and and the what this court says is that when there is a doubt the doubt should be resolved in favor of excusing the juror and so that's why we think that the discord erred here because if we were in a situation where the court did make a judgment call the credibility call and said i believe juror number nine over the alternate then yes i think we're in the area where we've you know we we give the district court discretion on that but but here the court left  really on equal footing on both and it and really true that it's not as if the judge said i believe only one the judge is saying i believe all of them yes which means she believes the innocent explanation she just doesn't think the other person is lying she thinks the other person is mishearing but sincerely mishearing right but i think that that judge that is i mean to me it is hard to it's hard for me to understand how the alternate could have misheard federal pen and he was very adamant that he said i heard him say federal pen and it was enough for him and he had enough concern to bring this to the to the district judge and to say which i know it's mind reading  and i'm not i'm not trying to say that that's correct but he was concerned enough to say that i think that this juror is not in the right state of mind and one other point on the facts here i know this is also a miner too and i'm not trying to split hairs but but that but the district court when she went when when when they disappeared decided not to excuse any jurors she said and this is at twenty three fifty eight in the record that journal bernanke said i would want somebody in my frame of mind to be on the jury if i were the defendant and i can understand how that would give the court some comfort that i think this person and especially from the defendant's perspective you know should be excused that's not exactly what the courts i mean that what what that juror said was i feel like i'm in the frame of mind that you'd like me to be so and i know that's splitting hairs but i do think that to the to the extent that the court was influenced by that or felt like you know this juror number nine went out of his way to say i am i am being fair to this defendant that's not exactly what he said and and so i just think that on the facts you are left in  state of equilibrium that the court should have erred on the side of excusing the juror and i think that's what this court's this court's cases have have said that when in doubt we excuse that you out when in doubt well when in doubt and say well when in doubt whether the the the juror has made a prejudicial comment to to the defendant said the district court gets broad discretion especially in this area of making credibility calls but what we but the reason that this case is it is different i think is that although she made it she made a credibility call that she believed bo and so i think that that on its own is that in a sheep she didn't say she believed one over the other so i think we you know by definition we have to have doubt here it but i do agree judge that it is it is i think we give the discretion to the district court ordinarily about determining whether there's a valid about you know what was said in that and then and one final point on this because the court does go on to say really think we should be getting there in this case because you know before you get to i mean we we have a different a different issue here which is you know honest juror honesty and and i think that we shouldn't get to the innocuous tie goes to status quo then i could see maybe you might have a point and still want to debate it but that's not what she said here i will be clear she said i believe juror number nine is just that i also believe  of a malicious complaint it was a good faith complaint but i at the other day i believe yes yes she did and and really you know i guess some of my main point here on this is that there has to be doubt if she's believed if she even if she believes both of them and she and i think that part of this was was was you know the courts the court accepting that that both of these people were in good faith but there's still a doubt about in your post verdict rule twenty nine motion for the i guess the counts of conviction you're challenging here for a sufficiency of the evidence in your post verdict will twenty nine motion you raised only three of those deficiencies challenges in other words you didn't raise the other six you raised them in your route twenty at the close of the government's evidence through twenty  we we tried to be selective with the with the district court on the three that we thought we had we had our best arguments on we didn't intend to we didn't intend to waive them and i thought we could still raise those on appeal i'm asking you why would we why would they be waived or why on in other words why are they preserved i'm asking so the important question judge i would say because we did we did raise them in our initial rule twenty nine after the verdict but in the analog to civil procedure rooty be they would be waived if this were a civil case on and i'm looking forward to the government's response to that they don't raise it in their brief but i think it's an important question but judge i think that if we if we had not filed the rule twenty nine at all i don't think we would have waived for purposes of appeal that and we're going we didn't we didn't have to you want sufficiency that's right yes no that's the question did being selective did you even inadvertently waive your other six and i would just say judge i didn't we didn't intend to do that and i don't believe we did judges that the the the last issue that i would like to address is on the money laundering amount because what happened it's somewhat unclear what what the district court what amount additional court found the r initially stated that the laundered amount was six hundred seventy three thousand five hundred thirty three dollars and that's at a table at eighty nine sixty three in the record and essentially that is the entire  that's that's the government submission of the of the amount we had disputed several of those items and at that in particular there was a twenty one thousand dollar number that was supposedly proceeds of mr pendleton investing in drug dealing by michael serino and that was the basis of count one which he was acquitted on and there were two other one hundred twenty seven thousand dollars that was for a rent a rental property and there was some testimony at trial that that that fund that was actually funded by rental proceeds from another property and what we said when we raise it with the district court the court said that even if we take out the hanes property which is a hundred twenty one thousand still which was twenty twenty one thousand that we would be above the we would still be above the five hundred fifty thousand dollar  limit because of some other sales of vehicles to three other individuals but the problem is that none of those three other individuals the vehicles for this is larry hardy loni sanders  one versus one hundred twenty month issue that it should be at least remanded for the court to to determine what the what that what that number was because we went from six seventy three she did exclude  about almost two hundred thousand dollars of that and if you exclude that then we're below the five hundred fifty thousand dollars threshold which is a two would be a two level difference in the sentencing and what the court said to get to get us back up above that amount was she sided three other potential transactions but those are not included in the p s r and so we don't even have a finding about what those dollar amounts are and so  you judge smith may please the court your honor i would respond to the both both issues of mr given juries but first judge barksdale quickly on your waiver question i'll just admit right now i don't know the specific answer to you i can tell you we didn't raise waiver in this issue in this case and it's because in looking at some i really believe in more recent cases that the court had for lack of a better word maybe soften the requirement of a further o rule twenty nine raising everything and that if it was raised at the trial that was sufficient i can't i don't have a case in mind and that is my memory of it however obviously we didn't raise waiver in this issue judge barksdale but with the court's permission i'd be glad to look at that jury issue that mr gibbons raised there's no reason for that to upset the court or concern the court of this matter it should not undercut the trial or undercut the verdict or to undercut the jury service in this matter and i think it's important to realize that first this comes in a new trial motion so run an abuse of discretion standard to begin with that's the process this came up with and primarily first judge shows you brought this was debated this was a question of fact that was put to the district court and it's all matters of district factor but there's a fact finder and this court is routinely given that discretion to the court judge barksdale you would ask the question of the case of the laws when in doubt the jury should be removed you said to whom and while i can't find a case on point that would say exactly to whom everything in the literature would say that is a directive to the trial court because the trial court is the one who has to decide it the courts have routinely said the trial court has their discretion is broadest when dealing with claims of internal misconduct such as premature deliberations and even if this was a premature expression of guilt and a man saying it was a thing was an offhand comment which is what the judge found but even if it was a true premature expression of guilt this court still generally refers to the district court's decision of whether the defendant ultimately got a fair trial and that was the language from collins and the reason for that is because the trial judge is in a better position to judge the mood of the jurors the mood of trial than a predilections of the juror than this court would be on what it calls a cold insistent wrecker the statement that i am in a frame of mind the judges and the district  judge is in the best position to determine what that meant and what that was what the juror meant by that and could the jury still be fair and ultimately that is the second court that is the ultimate question could the jury be fair the district court here determine yes it did credit all three it heard all three statements it believed that but found that juror nine and ten and sort of corroborated either more and determine that juror thirteen who really wasn't part of the conversation believed what juror thirteen heard but may have misheard it may misspoken have but ultimately that was the district court's decision and district court did a great job in here taking the entire jury panel in there and interviewing them one on one about whether they had heard off comments and these are all part of the sealed record at twenty five sixty eight and ninety four and twenty five ninety five twenty six twenty three the district court took that chance took that time and interviewed everybody and i think that's a good job to say that she did not abuse discretion and ultimately finding that all three jurors including the alternate could be fair and that the rule to the rule thirty three new trial motion finding that there was a fair trial and there was no prejudice here and the discerning verdict supports that the same juror that opposing counsel says has the premature feeling of guilt had a vote to acquit on certain counts so that juror also rendered a discerning verdict with the rest of the jury or the other cases that the jury common and that was worse than this but in one of them the jury the district court only question the mother of the defendant who had heard the jurors comment and the other the district court declined to investigate altogether this case you have more than that the district court actually investigated did its own interpret did its own investigations on interrogation the jury and made the credibility call that's before this court now that court was in the best position to do it and there's no reason to upset it as to the sentencing calculation that mr given speaks of the p s r came up with an additional fourteen levels of an amount of six hundred seventy three thousand to six hundred ninety two thousand all of this was based on testimony that came from michael serino at trial the claim has been a text that the p s r probation district court accepted the government's version of it pretty much in the chart that was given this was a chart that was given in the government's response to defendant's objection to the p s r importantly in that in that chart there was a record site to every section of michael michael serenus testimony where these moments came from and you can take a look at the p s r and i can give you the records of as well most of these involve the mercedes benz the porsche the chevrolet properties of haines boulevard the property at s has properties in a house of santa cruz these were the main properties that cornell pendleton purchased and helped him seal through the drug money and those alone come out over five hundred fifty thousand dollars if i've done the math right which is the cutoff for the two to be one point one and these are pages fourteen sixty four to seventy four forty nine hundred eighty two fourteen eighty seven nine hundred fifteen zero six to fifteen twenty fifteen nineteen fifteen twenty fifteen thirty three to thirty eight and fifteen thirty nine the forty two of the record so those are all instances in michael serenus testimony where the judge could rely to count more than where the p s r could rely to come up with the numbers to get to the five hundred fifty thousand dollars on top of that you had the additional testimony about property a cavalier a vehicle engine purchased presidential rolex rolex other jewelry and drugs say all profits that mr serina testified he gave back to cornell pendleton because mr ser testified at some point mr pendleton actually invested in the drug by giving money to mr serino and mr sareen invested the twenty thousand dollars that he got from pendleton three times and returned a profit to those are also from the testimony of fifteen fifty seven to sixty two and six hundred seventy four to seventy six of the record so there's testimony underlying the numbers that justified the excuse me the calculation  guidelines your honor then as i said those are those are the issues i had in response to mr givens mr givens points unless the court has any other questions i won't bring anything up and other than that we would rest on our brief and ask could correct it your honor i think sometimes that is the procedure and should if the court can correct it to do that i think that's the easiest thing as well and if there's no other reason to remain on the sentence that would be the most speedy thank you thank you don't you save time for a bubble on the sentencing i was on the last thing that was issued as i didn't mean to interrupt your train of thought to show is there a problem with this court making the i don't see a problem with it but maybe making the correction two hundred twenty one i don't think  site with respect to the the loss amount and that's at twenty five pages twenty five fifty six and twenty five fifty seven and that's where the district court discusses this six hundred seventy three thousand dollar amount that's the sole amount that the that's the amount that the government just explain and that's the sole amount that they advocated for and that was in the p s r in the district court said two things and it had to do with the twenty one thousand dollars alleged drug proceeds and then the haines property in the room and the remodel of haines and the district court said first even deducting the twenty one thousand dollars that was included for mr pendleton's alleged involvement in drug trafficking if you were still above the six hundred six hundred fifty thousand which actually should be five fifty that's the cut off and then she also said i think even when we take out the chains property or the remodel of chains then we still have to include the it calls purchased by three other individuals that were not in the p s r and that we're still we're still above the five hundred fifty thousand dollar mt the problem here is that if you once you do take out those three things that the court it seems to me was was agreeing to take out that brings you from six hundred seventy three thousand to five hundred fifteen thousand which would get us to drop us to levels under the guidelines and what the court has cited as getting us back up above the guidelines are three parties that purchases that are not in the p s r and so we don't know what the court was using for those amounts or really why was we also objected to that there was even a preponderance of evidence to support that and without that being addressed in the p s r we don't know what the court was using to support those amounts so i do think that there an issue on and it's a two level sentencing issue on accepting the removal of these three specific amounts to get a spool oh the guideline range so so so i would  ask the court either to reduce reduce it by two levels accepting what the the district court had taken out or at a minimum remand it for the court to give a final calculation and alternate calculation based on these other properties that it wanted to to substitute in place going back to this question whether it's one twenty one or one twenty months the government knows it's one hundred twenty months they raise that of course you're free you did not respond to it in your reply brief is it one twenty one  one twenty i think it's one twenty one judgment that the court said one twenty one and then went on to say one one hundred twenty as to counts two through six and one hundred twenty as to the other  run concurrently i think that was where the mistake was in the written was also one twenty one of the route your position is written judgment is correct and job with you rupert ultimate tournaments yes i do i do judge i mean i know it's  she said both at sentencing and we'd like i said we didn't even realize that i mean i hate to concede even though it's a one month put out but i do think that that's that that's correct and if there