the issues may be tied together but i'm going to try to go through the issues with with the court in order as they are presented in the brief and discuss and try and some additional points of those so i'll start first with m that's the first issues raised mr fritz contends that the district court abused its discretion by denying his motion without the benefit of a and essentially summarily stripped him of the opportunity to meet the burden which is placed upon the defendant the defendant case the burden both of the stablish ing the misconduct of the juror as well as establishing some prejudicial fact to the defense without the evidence you're hearing mr fritz contention is that he was stripped of the ability to further establish and meet his burdens as required in understanding case law and this a situation unlike some of the cases like kennedy which is cited by the united states and its response brief where jurors were sleeping during the reading of jur instructions that is a situation where it is q curative there do abrasions the jurors are able to read those instructions are provided through the end they're able to discuss the instructions with their fellow jurors and make sure they understand it because at those points the court doesn't provide any guidance regarding the instructions they are writ this is a situation where the affidavit of this for its which was the proceedings no indication that anyone else in the courtroom observed any juror sleeping this was not raised at any point by counsel by any other jerk by the judge a apparently not by the fight before the conclusion of a trial that is stricter as i indicated i was trial counsel as well and i did not observe i'm what was law does not indicate that i think i don't think it's just a blanket right to the hearing the but i think the issue raised by the motion with the affidavit was a clear indication that that was at critical stages both in the cross examination of some of the government of witnesses as well as the direct testimony of the defend himself which of them on the court is a person who has  right to remain silent but just to forego that and testify because the seriousness of the charges and what he wanted the jury to know for sure to fall asleep during that testimony is very about the threshold analysis would you disagree that if there is no falling asleep napping by one or more yours that there would be no need then for the determination of prejudicial effect and then even the greater issue no need for an evidentiary hearing if i understand your arse question my response is yes you have to establish the misconduct i'm not agreeing that the telling of it negates the ability to make that letter well just the fact that it's look then let's talk about the fact that the judge who is remarkably observ i think that's why there's an importance for the evidence you're hearing we have in a filing says that swearing under oath that this is what they observed putting that person before the judge questioning that person more in detail regarding what truth or are they saying this to assist her son who is the defendant but i think that without the questioning and bringing that in you're basically the court object to methodology that was used by the united states probation office which was an averaging system but to the number and really to the reliability of the information that he left in their court i'm sure as well where the nothing guidelines that section six a one point three a contains a policy statement which indicates that since in court are permitted to rely on real of an information without regard to miss ability under the rules of evidence provided that information has sufficient condition of reliability to support its probable accuracy and that's the heart of the argument here mr pritchett raising is the really loud built of the information that was to calculate the pill count which both in a way results in the offense a little calculation for him was so her luck the information came from one particular witness lay witness who his numbers and his time frames to calculate this that was the basis as indicated in the precincts report if they were allowed to point his testimony so his credibility comes into play which makes his he testified it this occurred for a three year period of time one year of which was after mr fritz was arrested also part of that was her objection to this testimony there was no it was brought up cross examination purposefully to deal with his credibility with the jury and then there was objections since right at the sentencing there was an objection to sentencing on the basis of his stuff  interesting that the time frames that were testified to by the witness were not utilized by the probation office they did not find them reliable actually cut down the three years that the witness testified to to twenty two months which was the time when mr fr released from jail until the time that he was arrested on the underlying charge here they utilize a twenty two month me period so his information that he provided regarding the timing was unreliable but yet the information that he provided court judge who is in the best position to determine the nature of any alleged misconduct did not observe any sleeping jurors the district court has a duty to ensure that each party receives a fair trial and doing so they constantly monitor the jury to make sure they're fulfilling their duties as a member of the jury this includes not sleeping during the trial and the judge is located at the bench in which is an elevated seat position which allows him to have an unobstructed view of the entire courtroom specifically the jury box given the fact that the judge has an obligation to ensure that a fair trial as well as his position in the courtroom where he is has the ability to watch the jury didn't notice the sleeping jurors it was also the courtroom personnel the district court judge usually watches the jury as well as the courtroom security officers and the deputy marshal all have eyes on the jury yet none of them noticed the sleeping jurors new jersey reportedly sleeping jurors and finally the trial attorneys didn't notice or report any sleeping jurors therefore in this case there was other eyes on the jury outside and just this district court judge in this case there were many eyes on the jury in fact and no no no one noticed the sleeping jurors outside mr france's own mother who like any mother only wants what's best for her son the district court has the discretion  determine what type of investigation is necessary into an allegation of germans conduct an evidentiary hearing isn't always required the district court has the ability to craft its own procedures to determine the nature of any germs conduct as well as whether added prejudicial effect on the defendant in the case where there's an allegation of a sleeping juror the district court is allowed to rely on observations as a form of investigation and that's exactly with this court did the district court in this case relied on its own observations as well as a lack of reports by others that there was no sleeping jurors during this trial this case is similar to free dig where the court of appeals found that the district court didn't abuse its discretion by failing to inquire into an inattentive ness of a juror especially since a judge didn't notice any extensive sleeping problems in this case there would be little to no benefit actually to holding an evidentiary hearing because the judge the courtroom personality and the trial attorneys didn't notice the sleeping jurors as well as the fact that the jurors would be prohibited from testifying at it evidentiary hearing under federal rule of evidence six o six b deferent should be given to the district court judge in his determination not to hold an evidentiary hearing because if it weren't any time a defendant was unhappy with the verdict they would raise an allegation of a sleeping juror juror and therefore an evidentiary hearing when need to be held this would put a great strain on the judicial system as well as the finality of the jury's verdict in this case an evidentiary hearing wasn't necessary to determine whether there was a sleep a sleeping juror had a prejudicial effect on mr francis right to a fair trial because he presented no credible evidence that jurors missed a large critical portion of the trial if this were the case someone other than his own mother would have noticed this sleeping juror mr fritz is vague in general assertions are there sort for an insufficient to prove that this alleged or misconduct had a prejudicial effect on his case simply this is similar to in tyranny where the district court did not air by finding that there was no prejudicial effect where the defendant asserted general assertions that jurors slept through parts of the critical presentation of the defendant evidence as well as the cross examination of the witnesses for the prosecution for these reasons mr prince's requests for an evident during hearing should be not denied and the district court's denial mr fritz's motion for a new trial should be responsible for distributing six hundred pills of oxy co down the district court relying on jack scott douglas's testimony as well as other controlled by is made during a twenty two month time period found that this number to be a very fair estimation of the pills that mr fritz distributed in fact to the district court judge said that this number could have been a lot higher or could have been a lot lower that's why in fairness it kept was calculated where it deference should be given to the district court reliance on witness testimony in this case six hundred pills over a twenty two month time period equates to less than one pill day this is a very fair calculation based on witnesses testimony at trial jack scott douglas mr douglas testified that he sold pills to mr frantz on a daily basis over a three year period of time prior to his ret arrest mr douglas further stated that he sold one to ten twenty or thirty pills to mr fritz on this daily basis some of the period  mr douglas his testimony had to be somewhat accurate and accurate as i recall based upon the fact that mr hurst was incarcerated for some period of time during that three year period so this twenty two month period is what the window where mr praed was not incarcerated and when mr douglas says he was selling to go down to mr atlantic that's correct and in case mr douglas his testimony should not be discounted simply because he couldn't recall the exact time period that he sold pills to mr fritz in that mr fritz is sentencing hearing the district court actually said that it's quite unusual for a witness to know the precise time period that they were selling drugs to the defendant and the exact number of drugs that were sold generally this type of testimony is general and  mr bunch testified at trial that he observed mr freights selling pills during at work during this time period in addition the the district court there's nothing unreasonable about the district court taking the reliable and mr douglas as testimony in discounting the unreliable portions of it and that's exactly what they did in this particular case other witness testimony also put so also supports the district court's pill calculation  mention mr bunch testified that mr fritz would sell pills at work during the time of his employment with him john kantor testified that he purchased pills from mr freights on at least three occasions j d singh dav testified that he purchased three pills from mr franks during a controlled by him on february twenty fifth two thousand and eleven aaron no sin in lindsay rose testified that they purchased fifteen pills from mr fred string of controlled by on march fourth two thousand and eleven miss rose also testified that later that day of the control by she purchased a pill and the following day she purchased another pill mr nelson also testified that he had been purchasing pills from mr frets prior to the control by when his brother charles wasn't available mr britt is own politike sharon also supports the district court's pill calculation he stated that he did have a pill addiction and given this addiction he would need to be distributing a great number of pills just to maintain his own addiction the district court finding that mr fritz was responsible for six hundred pills is also very reasonable because it didn't take into account charles's pill distribution or mr francis other suppliers in this case charles was mr fritz his brother and his coconspirator and he was found to be responsible for distributing one thousand three hundred pills yet none of these pills work calculations those pills that were directly attributable to him mr fritz also testified that he had three total suppliers however only one of these suppliers testified at trial therefore that we there's no that these other two is that the government's view that both of these and handsomest arise out of the century the same conduct the i guess that was the sale of the proceed during during this time period of the conspiracy at a location where drugs were being trafficked specifically mr for his own residence do we know whether the where the gun was located in the residence in terms of the drugs in the record reflect whether they were in proximity to one another the mr west testified at trial that the gun was mr fritz stated that the gun was kept at his mother's house his mother's house was also mr fritz his primary residence and mr west testified that he went into a bedroom obtain the gun brought it out and handed it to him now mr fritz also testified that he kept investigators testified that individuals commonly knew that drugs were being sold at this location so it was it was many drugs are being sold within very close proximity to where mr fritz possess this firearm many of these drugs  t are being sold by the brother charles in fritz so so so you've got the for what it has been as well which is for possession of a firearm in connection with a felony is that how does does  stated that he knew that charles was selling pills to the sheriff prior to the trade as well as he testified that the sheriff showed him this fire and therefore she could for see that his brother would engage in th transaction in addition to that transaction mr france also possess this firearm a drug proceed at the location of his residence a location where drug trafficking was occurring during the time period in listening to united states argument they're handling this on mr own door frits foreseeability that his brother would trade pills for again there's indications but yet arguing that he knew his brother was selling pills to the sheriff but i don't see where that specifically the fact that i am selling a person is selling drugs to show another person how that gives rise foreseeability that there's like some likel and mr fish should be aware that his brother might receive a gun in exchange for those pills as opposed to the money if that's the course of dealing that they had always had the result in the record that mr fri was least connected with the negotiations to buy the fire that michael incorrect that is incorrect your own and that there's a subsequent that's we don't know and that's one of the issues there the indictment for negotiating the sale of a firearm to a third party it had nothing to do with the trade of the gun with the sheriff in fact there's been no evidence that the gu that was sold was actually the same gun that was traded with the ship so while there were well the courts correct that there was some involvement with setting up a sale of a firearm it is different from the trade it took place a doorbell fritz knew that his brother had the shotgun because he made some cuts comment to the fact that i'm a felon in possession and i don't need to be around the gun or something to that effect that's correct and he was aware that his brother had this gun and where whether his brother was selling drugs i think he knew where the gun came from the the underlying facts of how his brother received the gun the timing of that  there's a lot of factual questions even though mr fritz was found to have been in possession of a jury the question is is the same gun the truth out about that was traded because that's the reliance is that that gun was connected to a felony offense because the gun was traded for drugs the timing of that whether it was actually within the conspiracy there's insufficient evidence to support it but that's really there's no nexus between that form and the felony for application of the enhanced ok well thank you very much counsel both of you for your arguments today we very much appreciate that the case will be submitted and the clerk may call the next case thank you