and your time we always just hope you sort of get in what you want to get in his little nuggets in these little nuggets but we'll see how it goes all right first case united states rodriguez pointed out that actually there should be a two step process when or whenever you have a mission and the record first as there should be a renewed to reconsider to at least attempt to reconstruct that record will rodriguez's opening brief for this court know relations as everybody agree it's missing or is it a contested issue of whether there's something amiss will it appears from reading the actual transcript court reporter you want on i mean what do you want to do about it is this gap in a record and so forth senate a whole thing back down to make it a limited agreement to reconstruct the record and then after that this court  mean i don't know i can't say that i know for sure i'm there there's apparently a conflict and there could have been a conflict which would have required over the top obviously we know there was a severance of one of the defendants right ok so at some point either the government or somebody presented the issue or it emerged over you know need to sever it or not sever or not the court granted  necessary or the fucking me if the judge did not make the findings necessary to close the i don't know why that decision was made there was just simply an order for most of the parties and their attorneys  the word texas syndicate i think that that was one of the  do it in the final jury charge the court knew the court knew it was being requested and chose to handle it in its own way what is the jury supposed to be thinking at this point you've had two words such as he's been here this whole trial you've heard  all of this evidence and they come out and all of a sudden george sometimes says he's gone there's only two things at this point the jury can be thinking one some sort of medical emergency occurred to our son says or two that he pled guilty that to you at this point united states versus jones four zero three f thirty eight one seven four three f thirty eight one seven the sixth circuit court of appeals said that it were requests would be sufficient as to specificity the first circuit in the united states appeals explained then oral requests could be sufficient now i know that the timing of the questions ought to didn't happen at the actual jury charge but already expressly provides that that both the request to see made the close of the evidence or any earlier time that the court reasonably sets and i think the point here is that the court agreed to a specific request and a granted that request would explain what the concert in shops in would be it aired i had met that that the was also aired and not renewing the requests but i still think that should be reviewed under an abuse of discretion standard a and b easily five one nine s second two three three this court held that version i do represent but here's the thing i wasn't a trial attorney i was going on appeal i there was missing portions of my record and i filed paperwork with the trial court to get it done and it was completed all i know is that my defendant was severed it was basically in the transcript that i saw it was just like there was a conflict and he was removed so that's about all the light i can shed on that so it's like it it just says conflict in the record so i really can't it didn't  an issue that i want to focus on is one where the question is was the integrity of the trial process corrupted when we had a on cross examination an eighteen year veteran of the f b i inject into the record your your client can get on the stand and testify it's our position that that's absolutely corrupted the process in looking at this this court of set part a two part test typically how you evaluate a person is can the statement even be construed as a statement on the individual's fifth amendment right and i think there can be no doubt in this case you have a witness saying he can get on the stand and testify the trial court down below acknowledge it just what he said it wasn't fair he had the prosecutor conceding down below that that it was improper and you have to sense counsel criticizing the state they're living in and given immediately after she made the statement to the i'm not suggesting that you agree that no i'm just when it happened in the trial the statement even a comment on his right to testify because on page seventy six and seventy seven of the government's brief it seemed to appear that there were tracting from that this is you know a statement and i want to make clear that this was a statement you have a case united states where it was an ambiguous statement and it the core analyze whether it can be construed as a statement of his silence or another reason and the court said in that statement it was in big us let it go but here there can be no that this was a direct statement so you're going to accuracy that there's a test that once you find there's a statement you go up to three things typically to see what was the effect of this on the jury one of them is the charges federal judges are expected to give a balanced and moderate explanation of the inferences to be drawn from a defense silence in response to a fifth amendment violation to keep with its high degree of responsibility to conduct a fair trial i think the statement the analyzing experiment where they give eight tests an area of a case where a murder occurred in a weapon was introduced in one sterile they said it was admissible the other they gave the minimalist instruction which is like what happened here disregarded strike that and then they did two other and shut ins where they actually did a little more in depth explain to the jury that they highlight the evidence and say why it was bad and the findings in that study show that the minimize destruction is actually worse because the jury ends of using the evidence anyways over the line but not not not true i just do that because you can look at johnston he's even in johnston there was that clearly mary disregard statement but then further in the jury charges they gave a more elaborate detail construction work cover similar to ours that event is presumed innocent no inference may be drawn from a silence i do not consider evidence that was removed from the record in johnston they said despite that instruction when there such a direct statement on the defendant's right to testify or is absolute silence even instruction in that case is not the be all end all you have to look at the three things you also look at the strength of the evidence against them in one of them one of the these witnesses were truthful he got a jury going back and saying you know what the government saying you're truthful you know what i'm green you know why didn't he why didn't you get up there and testify to the contrary so it's it's a big picture you got to look not shed much light on on the severance issue the judge just says marshall spoke other than mr sanchez mr king that's mr sanchez attorney and the attorneys for the government let's clear out the court and then my staff of course instead and then just as other matters taken up before the defendant george is canceled be excused and that's what that's what and the first thing out of the mouth of the defense counsel is about a missing piece of the record they're not ordinarily an appellate issue that we deal with a judge who wants it you know baffles us why somebody had filed a motion for now asking us to order to court or something but we find out you know at the beginning of all argument you know that something's missing in all of that and so it is it began we do this and we order it and we have supplemental briefing on it and so forth so it's i'm really coming on the irregularity of who knows within the purview of the government or somebody what they answer is oh my best my best  that would give evidence against his attorney discipline you know when the trial was going on it's noticed that this witness is on rodriguez's witness list so mr king says i would be in a bad position if i had to cross examine someone who's going to help me in this completely different  that there's there's no problem i'm still you you also could say th interesting part is that even though this witness was on mr rodriguez his witness list they get up it's time for defense to call witnesses and he calls no w so it ends up being severance really occur over nothing something that didn't happen and so the next issue yes i heard objection to the jury instructions and so plain error and then i i set forth in the brief the interstate commerce is discussed that says it's only necessary that the natural consequences of the enterprises con affected interstate affected commerce in some way and then the one hundred sixty two d instruction incorporates the one thousand nine hundred sixty two c statement making it a crime for any one employer associated with an enterprise there is no request for an instruction this is exactly what is but i'm not going to tell them why i mean i'm just going to tell them when it comes to the final charge to just consider the defendants before them and not anybody else and then the judge says is that what you're asking  or one of the factors is whether a spontaneous comment by the witness or a comment prompted by the prosecutor we'll hear it's prompted by defense counsel it's definitely spontaneous it's certainly not part there was no reference to this includes the general reference made by the prosecutor was there and in the face cross examination of all the witnesses that they didn't retreat from there from their test amendment claim there's no objection and that's on your that's on your plate here at theirs they talk about parading the witnesses this jury was out when they took their shirts off and the jury was out again when they put their shirts back on th ten thousand one of six and ten doesn't tell that many of the photographs didn't show a face with a tattoo so you didn't know you didn't know who the tattoo belonged to and so that was to release you mean when you said the jury was out when they took the shirt song and were out when they put the the last class i mean there are lots of ways to get that in musical form as opposed to make you stand up  suspicion or that it really would be relevant i mean given what the government's lawyer said here the reason for the servers that doesn't sound like they're give you any kind of right at all to a picture the picture was of a ts it ts is key to this case because they're trying to link rico membership to an organized criminal organization the ts there were statements saying if you got the t you're a member it was emphasized by counsel in closing argument saying yes they made highlights of the fact that he had the stamps and so this is just not the ordinary context words are visible and that would be not a fifteen minute violation arguments and we do appreciate your service was to e book i want to say within ten days of to date if you will do your due diligence relative to this missing grant to determine from the inquiries whether that's still you know a viable issue in terms of quest for us to remain or otherwise it may be that you're satisfied and we press on with the case of so notify the court by letter now whether or not that remains a matter you're either requesting relief or something and indeed if so you need to file a motion to which the government would have the opportunity to respond and weil deal with that issue expeditiously so either we've got something else waiting or we press on to the site in case you haven't but me all right thank you