my name is taylor women and i'm arguing on behalf of the appellant donald rennie ridley as appointed counsel there are four issues before you here on appeal first the district court's instructions the deadlocked jury is reversible error and requires a new trial second the district court committed plain air in admitting agent man's testimony and evidence concerning really in johnson cell phone location and related mapping under federal rules of evidence seven zero one seven zero two and six  therefore this court should release conviction should be reversed in the matter should be remanded for a new trial third if there is insufficient evidence to convict really of knowingly possessing carrying or using a firearm in furtherance of a crime of violence under instruction are totally different yes but when there is a deadlocked jury it is upon the judge to give the seller an instruction was given before so therefore in this case the judge should have given especially in light of the disputed evidence on count two and the possession and option for the jury just so it's clear the silver instruction had been given in the original set that's correct all right and when this no came comes along it's your position it the judge had an obligation to do nothing more or less than really read this over instruction crack your honor you have not reversed based on just the statement continue your deliberations but that is not the case here first of all there are two separate components that make this different in those cases that you are probably citing to the jur a variation of a dynamite charge and so one would wonder on his shoulder it would be would be given in lieu of it but still i'm trying to figure out what the scope of our review is given that we're here on play their re where they just sat continue your deliberation there was no question from the jury that's different than what we have here they're basically saying first over an infection by saying in a way to tell you there's an agreement is reached or is there another option for the jury that's entirely said request and make an effort you know command and let me tell you what troubles me about this i'm trying to imagine if we were to reverse this case and  when this theory in the case went before the u s supreme court so vern is not a rule of anything other than the management of the district courts in this kick in the circuit right not constitutionally mandated or anything else but it understandably seemed like a good idea so i'm not quite forty years ago but i suspect if the supreme court were to look at this case  would wonder where is there some prejudicial harm from some unfair danger to the defendant in this rather polite mild and objected to a request to make an effort to continue deliberations trial the trial is three days two days of evidence right so he's expecting that they're going to be able to reach a verdict today and after three hours they send in this note he says continue deliberations in an effort to get i think your again your argument which is that it's case where there is not been some type of silver an instruction red included and what the judge says this would be entirely different and it would be coercive and prejudicial in light of the disputed evidence for the gun charges as well as  defect that is noted in hindsight on appeal is something to that could easily have been corrected at the time of trial by bringing in the other one of the other witnesses that's correct your honor but then again as we were talking about before it's clean air because it affects his substantial trial rights the cell phone evidence he could just he could just stipulate to this right but he didn't stipulates here he could but he he also could raise an objection in the defense's interest your your argument is that as soon as a non expert begins to testify about cell tower information it is the judge's job without request from the defense to cram an expert down the defenses throat even though the defense might prefer somebody who could be impeached as not very knowledgeable about this the judge will force the prosecutor to bring in somebody who's  want somebody on the stand who will would admit as this witness did admit i'm not very tech savvy then you can tell the jury this guy's a klutz don't pay him much heed but if the judge himself is going to force an expert on the defense then that line of impeachment won't be available next month basis of my question i think george and i don't how can this make the defendant better off to force the judge in every case to make sure there's an expert on this kind of testimony your honor because they were able to submit evidence that went to the jury to place the defendant at a certain location based on evidence that doesn't the defense want a weak witness rather than a strong you have two witnesses they're going to say the same thing one is subject to impeachment on the ground that he doesn't know what he's talking about the other is not subject to impeachment on that ground and your argument seems to be the defense would prefer the second kind of witness and i'm afraid i don't get that you're assuming the evidence is not coming in without this witness and i guess and i'm not buying into that assumption either i'm thinking it's coming in one way or another if the government gets told you can't use this evidence this witness will get somebody and and that would be it and it's to my mind there's this other issue that it's not all that highly technical but let's assume that it is  expert you really aren't a better position as a defense is defense counsel pekin say to the jury look that person was he doesn't know much more about this than you do we can we don't have any reasonable line there it's an argument that would be for closed if you tell the the government you're not going to have about an expert and they get one the problem is he's proffering opinions about what this evidence means he's placing that offended at certain places because of this of it and that he  rules of evidence there should have been an expert giving that testimony at least some courts have allowed nine experts to offer testimony like that's correct that's correct but they all had experience with either cell phone work or cell phone company had given evidence before about cell phones so they never admitted that they weren't tech savvy in any respect that's completely different but i think i'm running out of time so i'd like to turn to the firearm argument quickly there was no evidence that there was not enough evidence to prove that really either because that's a firearm or brandish that as you can see the government brought upon a star witness who had signed a plea agreement promise to tell the truth in joe johnson and he that there were no he had no guns this is indisputable evidence by two other eyewitnesses that there were guns coming towards the bank and ryan had who said there was only one gun which is all consistent joe johnson's other testimony and even if you do find that really because that's the firearm there is absolutely no evidence that he brandished a firearm which is a two year enhancement how can there i thought it least calmly in another customer of say was  a customer in the bank robbery sees a gun and it's been branded a straight maybe it's to intimidate them that's what rob how robbery works right a perfect perhaps she said he set down the gun so that's because the two eye witnesses had muddled evidence that there were two gardens the two guns were claimed by johnson and when the government brought on their star witness they were utterly surprised when you say that really had no guidance and instead of to with is exactly correct and in fact that's the way this district judge who is a highly experienced read to the jury so it was within the discretion to decide whether or not the jury was deadlocked the jury went out and actually muttley let's i want to  and you seem to be arguing that's not enough to invoke the silver right and i'm frankly troubled by that well i think the court looked at the the car obviously the content  know and part of the know gave the court cause to believe that they weren't deadlocked and well not now not not finally deadlocked correct not not to the point that you just give up and declare a mistrial obviously but the notion that a judge who if your argument is correct and the defense had asked that any response be a silver an instruction your theory is the judge has discretion not to give it i think the judge has the discretion to decide whether or not in his judgment based upon the know as well as other factors the jury's deadline that's that drives a truck through the sylvan rationale right the jury saying we're stuck well i think the exercise of caution i'm going to give an allen charge and then he just repeats the language from i don't think that would be reversible error no one knew whether or not they were continuing deliberations over that lunch break i think those are things that played a factor into it they did they obviously are highly relevant in deciding how you respond do you do you give any answer at all you know obviously figured into judge turned ins crafting of this note without a request for a silver instruction from the defense but i've got to say i'm very very troubled by this this and this idea that when the jury says we're stuck the judge can decide on his or her own i don't think so and do something other than get the story asked you know should we continue to deliberate is there another option right so they were kind of throwing the line out there that that were not done were willing to work and the court politely asked them and did not demand work so what what's the what's what's standard would you have apply to such notes from juries in deciding whether silver and applies or not when when does a district judge have discretion under your theory not to give the silver an instruction when the defense asked for it i think based upon the factors that how how strong the note is written were absolutely deadlocked were high we're tired of this we've been deliberating three days you know when they've been out for less than three hours with five counts with multiple witnesses with certain things that issue i think that this is why you give district court judges some discretion that's the discretion to decide whether to declare a mistrial then here it obviously would have been way premature for exactly all those reasons but that's not what silver's about it had had the judge on his own given silver at this point without being asked by anybody to do it had the judgment had a judge but i mean had that happened oh i hadn't given it yet that you wouldn't if you that it's improper no no absolutely  not whether or not it was within his discretion certainly the instruction he gave was not prejudicial course of and did not influence so therefore this court should find that there was nowhere in turning to the the second issue of cellphone testimony i think that this wasn't a highly seventy tech issue this was simply records that any lay person in fact a child could read objection are you saying it should have been overruled since mans is presenting isn't a map that somebody else has prepared for him based on information that he doesn't really understand that first of age a man's did understand the information i think that needs to be clarified he understood the information and it were is not highly technical or difficult for him to understand so he had a basis to talk about this information and he explained how the information a and legit from the original records yes from the original records he could have prepared that man what had occurred was the map was may almost immediately as soon as the records were changed the r of may seventh of two thousand and eight records or taint on an emergency order they were turned over to a nudge it another agent to prepare those records so that agent mans and other agents can go pursue other leads it's not that he couldn't have done it he could have very well did it was already done and as i said this was not in fact a man's explained twice that it self explanatory information when you look at those cell records and cells time day number called location you plug it into google maps it's going to print it out it's not highly technical and then finally turning to the last issue the government had proven and as the court is well aware that this is going to light most favorable to the government the government had proven effective and if the best a gun in the court is right one credible witness can in fact carry the day on that and kimberly c testified that she saw both defendants enter the banks with the guns hold and display she watched them during the entire robbery she said back and watch them so she clearly had the best  interestingly enough miss cali was able to testify that because she had been addicted before and didn't want to be a again victim she had a keen sense of paying attention so that one witness would have been enough however the other witness michelle and directly over his codefendant the co defendants job judge johnson's job was to secure the place they had discussed it the night before they discussed it immediately before going in a take over robbery is a division of labor t gun so the government proved it literally i think on every single theory that could have been proven is whether the meeting in the belly or pinkerton series were presented to the jury yes they were and struction were and were definitely given on aiding and abetting and i believe likewise on pinkerton