proceed to the fourth case united states versus hunter americans agree on one thing and that was that there were two white dears for one jury trial and in this case there were starting with thirty's panel members of which were african americans ms edwards and his daughter and in the selection there was one african american who never got on the panel who was in the panel fifty but in the selection judge saad miller went through on the general questions yes to question a boat if anybody found it their way into a court room or something in the back pain and many of the jurors white and black or african american did not come forward the jury selection went on and there was a sidebar right before the strikes and the sidebars matter of contention between both sides cause were discussed judge stott miller and his table saw and full thought she should be struck i was there i objected i want to her question individual lee in chambers both parties t judge and counsel for the government looked at me like i was from mars and we went back into chambers and if you look in the appendix to questioning as it goes through  and i ask specifically questions general and then i go into when was the date was delivered and she says not this wednesday the final comments and at that point i believe it's starts asking her questions which had not been asked and obviously had nothing to do with date now it was about her employment being from earlier with mt sinai on her feelings and carjackings and things like that things that never been asked before excused we get to ms edwards and once she's excused or she was seated i should she was seated issues excuse from the room i'm sorry about that terminology and she we issues and there's a motion by the government to strike visited words for cause for the first time the judge denies that motion and we go forward then we're getting ready to do the strikes and judge stud miller was very clear to the government and says if you strike her we're going to a full blown batson hearing they had made the cause it was clear and then and the judge said if you strike her we're going to have a full blown backs and so it was inferred from the record i think it was pretty clear and we go out we do worse strikes the government's six strike investigation of what was going on and we then go into questioning argument things like that and when i made my record i specifically said that the government had moved to strike his daughters also an african american later on the government disagrees with that but i think when you read judge todd miller's remarks in the appendix there believe it's one twenty four it she is not confronted with the contents of that facebook page and the government moves to strike her again and i asked the court and i told the court i said if they've got something on her that they want to co tables and that this is a website that is anti white and visited words is very clear it is not it's a religious website and it has to do how blacks are treated in family she's asked about her bankruptcy's she's asked about going to court on a big collection matters and she says i went for my bankruptcy i was there for my kids prosecution and juvenile court  proximately fourteen years ago and that is that and they then we go to the second strikes later on after trying to get or excuse for cause failed and they strike or they say that they've struck everybody who was similarly situated well mr costner's who ended up being the four person had the same things bankruptcies foreclosures all of that  they never came up with the original reason they went i'm into a second batson they tried to come up with the post hoc justification but i submit to your honor that these and these the second batson hearing wasn't need he was told not to strike there was no race neutral reason and then we go on of the second one and i'd still to the state on why we did that we should put him back on the other defendant sentenced to thirty four seven years he was a teacher seventeen years old at the time the first thing i'd like to say is that we in our brief in the argument regarding  of the presumption that jurors follow instructions and if any fact could make it more different i can't imagine what it is but we as lawyers practiced in this b other courtrooms you know that's a principle that we rely on it's absolutely necessary in the government argues here that the prejudice to them of us being able to bring out before the jury the tremendous cowley's these fellows cooperate his face would be prejudicial but they then say that being able to say well it's a substantial jail term that's just the  wouldn't heard anything really different well those are two inconsistent arguments they can't meshed with the fact that we we know that juries do follow instructions the vast vast majority of the time the other thing it can i ask i don't want to take you away from the trend argument but i like to get your reaction or mr richards reaction when he stands back up to an impression i had from reading the our dear so can i run that question by y that i i hold that for your colleague my colleague is much more i'll do i really concentrated on this issue  one thing i want to say is that when i read the facts in this case i was surprised because at least in the northern district of illinois this does not happen i'm trying to case right now before judge kendal settled and then other prosecutors say well we can limit the cross examination in this way substantial what is substantial we've listed a number of cases in our brief about what case not being able to tell the jury motive real motive these cooperators had to lie and the bias that they did is essential and this isn't harmless  either because the case rides or falls on the cooperators testimony not being able to discredit them and show the full motive and bias that they had to live and to see and cooperate with the government to american the government used five of its six printers strikes on white jurors as to juror twelve just do it or for which there was a lot of discussion all due respect to defense counsel there misrepresenting the record as to juror twelve the government at no point move to strike juror twelve another african american who did in fact serve on the jury dirty twelve had  all of the jurors that she had nonrefundable travel plans there was a sidebar at which the jurors would be individually questions were determined juror twelve was called that point because she had raised these travel plans not because there would have been a motion to strike at that early phase of a sidebar when the parties were just deciding whom to question more when juror twelve than appeared it was defense counsel in that trial court who asked her as well about her travel plans it quickly became apparent that her plans were not to leave until the following week at which point there was clearly not a basis for a motion to strike and the government never made w bar at what point the motions to strike were made on the record and that's apparent if you look through that i understand that but as you said is it is it made it at the time or at the sidebar  particular juror discussing that particular juror is it at another time you list your strikes i see if you read through the transcript you'll see that the strikes to a particular juror has tended to happen after the after questioning the individuals or and so for example a juror thirty five who was not disclosed by the clerk's office to the parties after further going to europe him then you saw much of the strike on the record but again there is no well and it's this one when i look at the transcript what makes good sense to me is allowing the additional question of mr haber stack number thirty five and the reason is because  me when i have a harder time with though is re opening questions on jurors by and thirty six ok in other words in other words the batson is ue was on the table and the government when this issue with number thirty five mr hammer stack came up i think he was was this when he was in the bathroom or something he was delayed they couldn't finding at that point the government says look we'd like to ask some questions of number five again that's on page ninety of the appendix and then it later comes up the same pattern comes up with number thirty six ok what i'd like you to speak to is does that reflect legal or are as as a batsman procedural matter now the defendants to be sure never objected at the moment to the dish no questions of jurors five and thirty six mr richards in fairness made an elaborate objection later ok but can you address the backs and proceed sure of reopening the question yes thank you your honor it was not legal error because there isn't a particular prescribe rule in the case law in batson itself or this court's decisions that would prevent that instead batson sets forth its three step  framework but otherwise expressly declines to prescribe particular procedures and i would say to you also the city of morgan vs city chicago in which this court rather recently also observed that there's a lot of discretion left to district courts to handle jury selection and how to ferret out how to ferret out the the truth of prosecutors explanations in the district court here was trying to be fair to the parties to allow them to make the records they wanted to make because the defense had raised jurors five and thirty six the government i expressed whether asked sort of pose the question whether there was a need to question those jurors more and as for the first one it was that effect of the district  appropriate and what you see the court doing is trying to allow an open process to get the facts on the table so that it can make the credibility determination and that's what this ultimately is about it's a credibility determination as to the veracity of the prosecutor explanations the reason why the proceedings went to the second day is because of the odd circumstance that juror thirty five hadn't been disclosed before and that just goes to show that trials happen in the real world with real people unexpected things happen and so that's why district courts are given that discretion to be able to fashion very dear and the procedures in a way that makes sense it's not clear that that would've that the additional question in a five or thirty six would have necessarily benefited the government and so it wouldn't be a reason to say that there is a legal error here ultimately the district court examined the government's reasons for straight the major a sudden they remained consistent throughout from the beginning of a batson challenge the government explained that it was striking juror seven because of the criminal involvement that her son and her ex husband had had as well as for lack of candor about civil cases when directly asked about them and then the government as information was brought to light apply those same reasons in an even handed manner striking white jurors three twenty to thirty five all of whom had criminal convictions themselves and then thirty six who had a close family member and so this is an even handed race neutral approach to white and black voters alike while allowing another african american jordan ever twelve to sit on the jury without trying to remove her the defense also puts a lot of emphasis on what it characterizes as the warning from judge tad miller and with all respect that's also not an accurate characterization of what happened if you look at a page fifty of the appendix because the defense counsel is judge caning noted had previously foreshadowed a batson objection to strike in juror seven it was in the context of that the judge stadler was letting the parties know that if juror seven was struck and that if the defense followed through the batsman jackson that the court would take its time and carefully look at this which would then affect the start of trial and so that allow the government to reschedule witnesses for the next day and the court then engaged in what was really a good faith effort to deal with quirky situation of juror thirty five somebody who it turned out had a very serious criminal history had been very recently found mentally deficient who otherwise would have been seated on on the jury panel and so that there was good reason for the court to find a way to both assess prosecutors credibility but also to determine how to handle this this funky jury situation on this very title was in fact reasons there were reasons for concern saying that white historians have lied about history and just a simple look at that same organizations page now is really united in christ shows that there are other postings there that similarly have racially changed posts and so it was a very appropriate thing for the government to inquire about that because there would have been witnesses at this case of a multiple races ultimately the batson issue again comes down to a credibility determination there is no legal error here the offense is not cited any authority to show that there was a legal error and there the does because a district court was able to observe the demeanor of the prosecutor and the jurors there isn't reason on this cold record for this court to set that credibility determination aside i'll now turn attention to the trent issue trend was decided just two years ago without any dissent it was correctly decided and it's consistent with supreme court precedent supreme court made clear in van arsdale that although defendants are allowed not to nitty to make effective cross examination district courts are also still allowed by latitude to place limitations on cross examination particularly when the cross examine examination could elicit information that would be a relevant or potentially confusing as the supreme court and shannon show that this sort of testimony would be the defense suggests that there were multiple cooperating witnesses for whom their process was severely limited and that's just not accurate there was only one cooperate in witness who had a mandatory twenty five year nine twenty four c sentence dismissed that was kelly scott the cross examination i kelly scott was vigorous and it went even beyond the lines that trent laid out the defense was able to elicit not only that kelly scott would have allowed to subside a substantial time that was going to be consecutive to another mandatory minimum but also that at age twenty nine kelly scott would not see the quote light of day and so that gave the jury a very good sense of the fact that killer scott was avoiding substantial time and lengthy time and the point is that a lot of the jury to make an accurate assessment of his potential bias against the government and that's that's the core of the confrontation clause right that the jury not be left with the misimpression about the witnesses potential for bias with all respect i don't think that there's a conflict with the ninth circuit didn't categorically rule that you may always elicit the mandatory minimum penalty rather that case turn on the particulars in larson there was a mandatory life sentence that was being avoided and there wasn't any cost loud about even the existence of a mandatory minimum penalty where is here again kelly scott they brought out that there was a mandatory minimum penalty that was going to be consecutive and would have meant that he never saw the light of day on top of that even if the court were t have any concerns that certainly not that the difference between that cross that was allowed and cross that would have brought out the mandatory twenty five years would not have affected the trial here but from beginning to end the defense counsel vigorously crossed on the bias potential bias of the cooperated and the evidence was overwhelming i want to touch just briefly on the pro se issues raised and hunter's brief in case there are questions on those he is the investigator strasser who was permitted to just give a few a minute or two of testimony showing similarities between the robberies there was no objection to that so your review would be for plain error again i errors whatsoever but certainly not something that would have affected the trial given that the reason the testimony was kept out was that it would have been cumulative of the other substantial amounts of evidence that included pay to the defendants the sufficiency of evidence challenges there was a stipulation s to the interstate commerce of george webb's restaurant on the river and the romans food market and the evidence certainly gave a rational jury reason to think that the commerce there had been interrupted and you only need a de minimus interruption for there to be an interstate commerce nexus and as to the mens rea after the carjackings certainly there was evidence here to find that  there was a at least a conditional intent to cause death or serious bodily injury because as to mr chirac he was forced down to the ground and hit on the head with a gun and as to mr sherman a gun was pressed against his stomach as he was told to remove his possessions including car keys and a commanding tone this fits well with and what a rational juror could find that show the requisite intent i want to make a comment just briefly that these are filed by mr hunter pro se as i think i am concerned we do allow that when he's already represented by counsel but will certainly consider those arguments because we allowed it to be done it in my limited experience i haven't seen that either it does seem a bit unusual at bottom that is defendants had had competent counsel who vigorously try this case and aggressively challenge the government at every turn crossing the witnesses aggressively but there was substantial evidence and a jury found the out of reasonable doubt that they were guilty based on surveillance video identifications physical evidence that corroborated these robberies they were serious questioned but what i was wondering about is is why why was additional questioning allowed on five and thirty six i have no idea and can i offer a hypothesis and what i mean i want in there ok but it's it seemed to me that in the wake of the confusion over the list ok and who's on the list and who's not and who's asking questions of what the judge that mueller just in the exercise of his discretion said all right look if you if we need to ask thirty five paper stats an additional questions i will allow at the government's request additional questioning of of five and thirty six it doesn't seem to be anything more to it than that and that may be but stat was objected to brought up in the terms of the reasons for strikes on edwards and it was very they said oh we didn't know about it but we did get our list on one day whether that's our fault for not picking up on thursday or whatever but he was on one day with us and we were able to once this batson matter came up quote get on our computers and check these things out and that's what we found out the walker shot conviction is it below is it the questioning no on five and thirty six at the end of the day bottom line for you that that's what reflects the legal error there that warrants a new trial and opening up ms edwards questioning on three different occasions you know they need to strike and they haven't confronted her with the facebook judge stan miller says you have to confront her and so then they start asking the questions in the record is i got it i understand the record is full of people w court didn't understand his questions bankruptcy simple things all those things and that's where the problem in this case starts or should have been one patsy hearing should have been one jury and if that doesn't work then you pick a whole new panel and you start over you don't need to say thirty hear the prosecutor say that the evidence was overwhelming i remember being at my parents house i was in the u s attorney's office i tried my first case and my mother said how the case go i said it's a jury the motive for them to lie and to get out from under these sentences and media what we're talking about although many of these cases use of the word confusion and confusing the fact is what the government's concerned about is that the jury will learn that the horrendous nature of their sentence transform that to the defendants and find the defendants not guilty but that goes against every that the juries follow the instructions and prosecutors said they got an accurate account of what these fellows face no they did they didn't get the facts of what they faced that's the a should have been able to do and the problem with a case like this is that the government uses it to curtail across his emanation in just a situation like this that's not done in the northern discommode on it's not done in the