reason for that is that both share the same premise and we would respectfully submit the same flawed premise that there was sufficient evidence to support a conviction for a conspiracy to carry out excessive force now to of course to find a conspiracy to grab a man or the key element is an agreement a criminal agreement a plan a meeting of the minds in it's our view that it's that key element that was missing in this case now i know the court had asked us specifically to discuss the davis case out of the fifth circuit so let me try to address that case and it's our view that that case is actually helpful to the appellant's in so far as the highlights the contrast that so what a true conspiracy and a meeting of the mind looks like or what appropriate evidence to allow that inference looks like compared to the facts of this case factually the davis case spanned over several started with a completely separate criminal activity there was a beating of an in custody witness there were repeated threats and admonitions to inmate witnesses don't cooperate with the authorities or with the investigation and if you do there's going to be trouble one of the inmates did in fact cooperate testified against the jailers and sure enough several days later a group of jailers went down to the cell block and administered a string of beatings to different people that were perceived to have participated in  investigation even going so far somebody diverting a video camera now on the facts of that case perhaps not surprisingly the fifth circuit said well yes there is adequate evidence there to infer a  agreement you can look at the timeline you can look at this common motive to to quell an investigation you can look at in any number of factors to find that meeting of the minds it's our view that that stands in contrast to what we have here the government in i'll start by saying that it's important i think looking at the taliban as we must that each of the governments witnesses expressly disavowed there being this kind of meeting of the minds and people did testify yes i used excessive force yes people testified that it wasn't justified people testified that they participated in a cover up but that nobody even the government's own cooperators who are beholden to tell the truth and had  great deal of motivation to help the governments with their case even those folks said no it in hindsight we realize that this was excessive we didn't go in there with the specific plan to carry this out it's that plan that is the grab them and of the offen and it's this agreement that cannot be inferred from what in essence is a spontaneous act of violence can i ask you because your client is the supervisor right yes sergeant involved do you think that the case law supports the notion that the kind of the standard for two forty one conspiracy liability is different first supervisor in the sense that if you as the supervisor essentially watch your subordinates engage in what you know to be excessive force and you do  not intervene to stop it as you have an obligation to do that that is at least kind of a tacit agreement that you formed with those people even if they're not even aware that you're necessarily doing anything that that that alone is enough to trigger liability for the supervisor no your honor i think certainly that that supervisory position is relevant and could give rise to liability for the subsidy of act under two forty two and i think that's what the risk ace held and it makes sense to draw that distinction because if you have it's a duty based analysis if as a supervisor you have a duty to stop in that duty comes from protecting the constitutional rights of that person and you make an individual personal decision in individual  recess you can be held liable for that criminally and properly probably properly so now whether you can then take that principle and say that that that that individual sin of omission is the same thing as an agreement as as a meeting of the minds with other people i don't think that turns on the position of the supervisor it doesn't make that omission any less troubling quite quite candidly why haven't you why shouldn't  put in these terms why shouldn't the law deem you to have formed a tacit agreement with your subordinates to inflict an unlawful beating and not setting well i think you reach the point where where to do that you start piling inference upon inference which i think is what the i think that when there is the vehicle of personal individual liability for that sin of omission and if the government you know felt that they could prove that to a jury and sought that and didn't this a valid the way in that case that that gives them the tools to do that i  think that allowing a sin of omission to prove agreement is simply going too far and what we're allowing in terms of ok fair enough so the specifics here that yes it seems to me there are three potential additional pieces of information that take us out of the sin of omission case that you were describing the first is that your client if i remember right radioed for additional officers to come under circumstances where there really could be no justifiable need for that because the victim was  behind his back yes right so he wasn't i mean he was already being manhandled i see him at that point there was nothing other than somebody in the other officers couldn't have there was no other purpose for that other than to inflict a more severe beating or at least a jury could reasonably infer so that's one number two i know you dispute this but he does state in his report and the judge i think a reasonable jury might well be able to believe part of it that he says he directed the officers to use force so that there would be two and then number three of course is the post a beating a conspiracy to cover it up and i think our cases suggest that that can't be alone enough to support the you know the excessive force conspiracy but it is it supported so those three pieces seem to me to be pretty much to take us well outside the sin of omission case you describe so what's your response there well acknowledging that we have to take it as a tallahassee let me nevertheless try to injuries address each one in turn and that's not to divide and conquer but just to answer it in an orderly way in terms of the call for back up the way that the evidence came out was that this was a four fifteen disturbance call where does that stand i guess for fifteen under the california penal code is simply disturbing the peace so it's a  shorthand for there's a disturbance basically there's a sort of disturbance in the front lobby i think that that piece of evidence is cuts both ways and also is one of those a damned if you do damned if you don't scenarios and let me explain what i mean by that the way the evidence came out was that this was a general there's a disturbance in the front lobby call and i'm paraphrasing but that that went out to anybody who held it who held a handheld radio in the entire structure of the twin towers so it seems a little curious if if the argument is this is a group of a couple bad apples who agreed to administer this beating to then send sort of an all hands on deck to the literally anyone to add a radio from a staff person up to senior management presumably within the twin towers it just doesn't seem to move the ball in terms of this this even sing in agreement so much as it just being this is operating procedure for when there is a disturbance of whatever stripe now when i said damned if you do damned if you don't what i mean by that is you could envision a situation where if it is standard procedure for a lawful alter cation or a situation of this manner to call for fifteen and a call for backup and if as a supervisor he failed to do that well then i suppose the argument would be well see he's trying to close or this this this area and in keeping the other witnesses away and shrouded in secrecy so i i don't know that moves the ball ok remind me then maybe i don't have the facts clear i thought that at the time he radioed for the other officers officers to come that basically an unlawful beating was already in progress and that there was no need for additional officers to come to the scene to get it under control in other words so why couldn't a reasonable jury infer from that that your client's intent was very much to have the additional officers come in and as i said basically help inflict a more severe a muffled so i guess what i would go back to is is that evidence of his personal subsidy of liability perhaps eating at a batting or something of that nature or perhaps in that the same thing as saying that in that moment he had formed this plan in agreement with the other officers i think we just fall back on the argument that that doesn't that doesn't carry the day in terms of evidentiary value i guess i have to leave it to the using his own report you know the response to that is we sent our briefs is that that's just simply not true that it was the government's premise that the reports were not true and not not in full but many details in the in the reports were accurate well the salient facts were whether he specifically ordered a lawful escalation of i think that the purpose of the false occasion of the reports of course was to justify the use of force that was inflicted and that was what the government allege was false not anything else well except that every review why can't that why couldn't a reasonable jury nonetheless decide look the man said it he admitted it in the report yes we found all these other components of that false but as to that we don't have any reason to disbelieve him on that well i think it's because we're arguing with the way that the government argued it it's not that did he said it or did he say it it's was a true i mean was it the truth the government argued that the jury should believe that portion of the report right even though the government knew based on every witness that testified including its own plea agreement with cooperate or not was i don't know yeah ok well that's he was that man was stating what you know in terms of whether he was directed but he wasn't speaking for your clients directions to every other officer on the scene misconduct i just don't buy that frankly so ok then what about the post beating cover up why isn't that again supportive of the notion that you all really did get together on this i'd love to answer that question i'm hesitant about stealing time begs the question in terms of whether there was an initial agreement in that split second now it because the matrix of facts is not truly in dispute in is the core pointed out this was certainly a moral failing if not potentially giving rise to criminal liability under two forty two for sergeant gibbs aulus not to intervene really all the coverup helps prove is that there was something that happened that shouldn't have happened and whether he's trying to protect his officers whether he's trying to protect himself from civil or other liability again it's sort of begs the question as to whether there was in that split second or those moments when when this was escalating into a beating whether there was an agreement or a meeting of the minds to do so now if it's a davis case or a case where there is this timeline that unfolds and then you can look at you know who was actually involved in it or if there is the undisputed conspiracy in the question is is there sufficient evidence to put defending a defendant be within that acknowledge conspiracy then we can look at things like that like like a cover up and whether that ties them to the conspiracy but i think again on the facts of this case it doesn't it doesn't move the ball so that follows the jurors lead let the him or her explain ask questions to clarify or probe but don't push and ultimately accept the jurors decision now this court in  must be resolved against the juror which makes it critical for the court's colloquy to question the juror in a way that eliminates doubt rather than creates doubt and that the only way to ensure that the jurors ultimate answer yes i can be impartial no i can't is a true expression of the jurors belief rather than words that the court put into the jurors now is to accept to follow the jurors lead on this and the daily case which is cited in the government's brief and which is discussed in further detail in my reply brief i would submit is an example of what to do that the court in dalian a block quoted exact opposite of daily well the could i ask you you've you've chosen daily to focus on i guess i juz bush sure to focus on because it seems to me that case is much closer in terms of being on point factually to ours and then you could help me see why that case is the people rather than any of the what happened in be sure was that the jurors change of mind occurred even before the court intervened the defense counsel question if you're a pettigrew and said well she can't give you know a positive assurance then the prosecutor questions there and she says oh yes i can be fair and then the court intervenes and says well how come you gave two different answers and miss pettigrew stated well the defense attorney asked me about emotions and the prosecutor was asking me about facts so it was the juror herself the drew this distinction there was no the thing that happened here exact same thing well no no it's not i would submit it is not the exact same thing that happened here because here the court did not give that answer on her own it was not her or she that exactly what happened she said i can't remember exactly quince but it was basically you're telling us that you you know have some issues here are you able to put that aside and she says evidence which is not yes i can be impartial or even i think i can be impartial so she was continuing to give equivocal answers even after this took place and do the cases partly due to the cases that are referred it's pretty fundamentally different in the reason i'm suspecting that's true is that you know lawyers put thing put things with shock value before juries all the time and then the other side has to say oh no you we object because it's it's unduly prejudicial or whatever and it's an evidentiary matter we don't normally go and say well when something is actually permitted to be admitted like this picture that then if the juror is shocked that it's somehow a problem that's the difficult him having in this it's not prejudice it's just the reaction that this person hands to the evidence if the evidence is under lee shocking and then it maybe it should have been admitted but if it's properly admin and then you get a shock tour this is at first  said she saw it and the way she saw it was because it was introduced in evidence that correct that is not good it was during opening statements not ok it wasn't shown during for dear no not during board so it was shown during the trial so she's shocked by something or upset by something that's in the trial once the jurors the ones i don't understand the sequence seems like once the jury is determined to be a jury that's been vetted for bias then if something happens that they react strongly negatively that's that's the way cases are tried unless they have an instance improperly cemented or if it is should have been mentioned in the opening up opinion then somebody should objected to and they should have been a struct and not think about it or whatever discipline or have a mistrial i don't know but it seems to me like if it's if it's part of what the trial presents to the jerk to say that then when the  is that what happened here is that the were vetted herself that the she stayed up all night she wrote a note to the court she said you know as a princess with kate eight students she explained at length her personal philosophy and how this seeing this picture affected her under her personal philosophy and that this what she described as a grotesque image is weighing heavy in my heart and you know she think we're familiar with the facts but what i'm submitting here is that four of you know this is not only shock that she expressed she put into question her own impartiality she put into question the issue of whether based on this one picture then judge the totality of the evidence fairly and i would submit probably the t jury questioning her own personality by ultimately saying you're breaking your oath you can't just curl up in a ball and we stay in our rooms that that's the sort of belittling and pushing for an answer that was good morning my name is katie campbell windsor and i represent the appellant fernando levy on am and mr levy honor is the deputy who did not normally work in the visiting center but was called in that day because they were short handed and in has just addressed but he also raised an issue of first impression as to section fifty one thousand so i that was what i would like to address i just also wanted to mention that the jury issue has really two parts that addition to her coming forward after opening statement to say that she was so disturbed that she wasn't sure she could be fair but later on it was observed by all the parties that she wasn't looking at the evidence and that's when the video came  think the first issue was with the still photo but then the parties including the government notice that she wasn't looking at the video and everyone agreed that she should be questioned about that but the district court chose not to ask any their fabrication is not one of the words it's used it's falsify or make a false and trian and it's pretty clear make a false entry and was not the language that the government was primarily relying on they were really using and the fals the the word that's used in the context of the other words and so all of those other words that are used are you know altered destroyed they're all things that are done to existing documents and we know that congress knows how to how to criminal false statements in police reports i mean if you look at section one thousand and one that prohibits making a false writing knowing the same to contain any materially false statement so that fits with with police reports with a false statement in a police report but that when you look at at this language the the word the verb falsify and make a false entry and in the context in other words that are used in the statute that this is not a good f writing a narrative report so if we were to if we wrote an opinion in this way what would we say you would be saying that that looking at the statute that this statute does not criminalize writing narrative false statements that are in narrative police reports because of the debt starting with the dictionary definition of those terms and then looking at the the terms in the context of the other one is your position is that the statue can only apply when there's already an existing document and you do something to it to make it false exactly exactly and really i think the only other court that's looked at this this issue post yates is that second circuit and roland and they really focused on that the word alter that they felt like if we read it that way then alter becomes it's a perfectly us and we responded to that in the brief and our position is that alter is is really a different word and you could actually make a correction for example if let's say there was a document that had errors in it and you knew you were going to be audited and you wanted to to go back and correct those you'd be altering it but not falsifying it so that so that analysis we would submit is is not persuasive   i'm one of those judges who thinks legislative history sometimes can be helpful and i guess i'm the word fabrication does suggest the wholesale creation of if they falsified documents so why wouldn't we perhaps rely on that to shed light on what falsify means given that it's somewhat ambiguous according to you right well i mean i would just say that that that wasn't the length the word that that congress chose to use and that again that there are lots of false statements statutes where the where congress did know how to to initial argument so let me just state that at the outset but it's probably because it is somewhat complex but the diff the defendants never claimed that the that the parents had to prove intent to impede obstruct or influence and actual or contemplated investigation of a federal matter now i'm saying they don't have to have known that it was federal but the government has to prove that the investigation that they were obstructing was indeed federal ok so let me stop you there and so why tell me we're going wrong i say that these folks use excessive force they know that presumably they know that th potential investigation not one that's underway at the moment but a potential investigation that they don't and you're saying they don't need to know that it's potentially federal so why wouldn't all of those the contemplated investigations necessarily fall under the federal umbrella that's a great question and so so essentially what we're what we're saying here is that it's that word presumably that you use that the supreme court and then the ninth circuit the supreme court in fowler and then the ninth circuit in johnson has said that there has to be something more than sort of a hypothetical and it's probably the government probably doesn't have to present much evidence on this but they have to present something they have to show that there was you know that the the the federal government had investigated use of force claims before that there was  training that use of force claims or the use of force could violate someone's constitutional rights there has to be something that shows that there that a federal investigation would have ever happened and there for the los angeles police department does not have a good track record on this well interestingly in the in the in the jails i think at this point you know i mean you know we have read the newspapers are aware that there was this later federal right so it's a different statute but it's in the same obstruction of justice series of statutes and what it says there is the government you know has to just present something about  that the use of force was investigated by federal authorities or that the you know that there was some kind of training there just has to be some evidence of either what they had on the statutes materially different there well statute when i look at these these statutes are all set up very similarly and in fact one of them they set up similarly but they say different things don't think but when you look at the supreme court's rationale for why they read influence to influence the investigation that could be to do that is to deter the investigation that would be influencing an investigation if you tried to deter it you try to forestall it or prevent it but it's still the same the same issue that will that there's something you or to affect and that's well right if this if if if if all of these officers got together and said well we've got to be honest let's just file the reports or just tell him that we beat the crap out of this guy  somebody is going to say you know not only are we going to get fired but we're going to end up with a nine hundred eighty three suit and we're probably going to end up with the feds over here investigating this as well that's just not just not  name on the lot it would've been their own names on the lie well what what the supreme court in the ninth circuit said was it has to be something that has to be some evidence it's more than hypothetical and more than then remote or outlandish or simply hypothetical and we don't have any evidence here that they were acting with an eye toward a federal investigation that everyone if they were acting towards a state investigation and independently the court could conclude that  the same thing that they were worried about could have been the subject of a federal him but these people they just never think about the federal government they just think about state government why wouldn't that be enough it's just a jurisdictional hook is not well what you're saying i mean it's absolutely true that the government there could have been a dual purpose that's what i was having i'm asking about the nature of the statute the nature of the statute seems to say they were trying to forefend an investigation into particular kind of conduct period and second that conduct is subject to a federal investigation we know from what we know from what the feds investigate so that you've got the intent which just goes to avoiding an investigation that might get them in trouble may be thinking only of the states but there's a jurisdictional hook that says and i think should be but that's the way the language of the statute books as well i would just say to look back at the supreme court's analysis in fowler we can go back it looks materially it looks distinguishable that's two statutory language as i don't have them in parallel right in front of me when i did it look like they were distinguishable along that very line is that in one of them it looks like the statu literally says it just has to be something that the feds could investigate well i think i mean in this case though they have to prove that the investigation that they were trying to obstruct was that federal investigation and that's what the structure of these three statutes is very sad and they use similar language as well i think it would be really hard for this court to distinguish fifty one thousand from fifteen ok i'm still unfortunately confused you started out this pro y argument by putting under the heading intent yes and so i'm still struggling you're saying i thought you said that they don't need to know anything about their being a federal investigation it's so then how that they it wouldn't be a defense for them to say you know we wrote these reports because we were concerned about one thousand nine hundred three or a federal investigation into use of excessive force but we thought that those are actually those were state investigations into the unlawful use of force that wouldn't be a defense it's not a defense that you you know made a mistake that you thought that state law enforcement the best get it ok so let me just see if i got this straight i'm sorry for torturing you guys  so they need to intend not to falsify something to get mr creel falsely prosecuted they need to intend to to real some investigation into their own conduct exactly ok if that's your argument then what you you start out by saying well the government has to put on some evidence that the federal government was investigating this or that at the jail and what does that have to do with the tent that you just articulated well that they that there has to have ben that there has to be some evidence that their intent was to violate that federal matter and there just there wasn't any evidence that use of force was investigated in the county jail by federal law enforcement or that there was any training so into it so there's simple things that that johnson you're saying that your client did or your client did have to be thinking about the potential that the federal government would come in to investigate there has to have been and invest in a federal investigation that they were what they were acting with an eye toward and that in this case they were acting with an eye toward that that affairs what whoever it is that has authority they might investigate us and prosecute us under state law for you know some kind of an unlawful assault and so that's why we need to falsify these reports and that's that's the state of the evidence you say they get acquitted because they didn't have in mind that we want to track this potential federal investigation that's your position well you know actually i mean in this case they didn't even have that evidence that the internal affairs there was an internal affairs within the i really want to know the answer the question i think they need to have been acting toward the federal investigation into sourcing in the language of the statute would cover what for just described would no because that wouldn't be a federal investigation i thought it was an investigation of a matter which is within the jurisdiction of the federal so it's a matter of what happens jurisdictionally speaking to be within the doctor's diction of  the federal well that was evidence i mean they called the internal affairs witness witness and even he didn't testify that use of force was routinely investigated there really wasn't much evidence about why these reports  morning honors may please the court bramall them for the united states the defendants in this case be an innocent man and then lied to cover up what they had done their convictions to be affirmed with respect to conspiracy conviction the fifth circuit decision in the united states v davis with that which this court cited approvingly in recess as well as mcqueen the eleventh circuit decision that the government discuss five other out of circuit decisions that the government mentioned in its twenty eight j letter all the numerate factors that this court can look to another a reasonable jury can look to to determine that  conspiratorial agreement was in existence at the time even if defendants don't actually say let's go beat someone up or write out a contract to participate in a conspiracy those factors include the factors that judge wofford mentioned and others that are relevant here first motive that is specifically mentioned in davis and it is relevant here there were at least three motives that would have precipitated this attack on gabriel korea first the defendants knew that gabriel korea and his girlfriend brazil the tourists had brought cellphones into the jail in violation of jail policy that supplied one motive for attacking korea second gonzales and i all of both heard korea oh mouthing off by saying that if he were not in handcuffs he would have fought back before the beating occurred that provided a second motive and most frighteningly is the possible motive that the defendants knew that korea was brother had been beaten up by the sheriff's department two days earlier and that korea and his girlfriend may have been bringing cell phones into the jail to get pictures to document that abuse and while that may seem like wild speculation as the court is aware after this incident gonzales exchanged text messages with a deputy or an officer involved in the abuse of korea's brother in which he compared the two victims and suddenly looks like we did a better job where is my beer big homie to which that deputy responded ha ha ha so all of these potential motives are evidence that the jury could have considered inferring that there was a conspiratorial agreement another factor that davis suggests the court can look at and that all of the cases that the government has side in its twenty  letter suggest the court can look at is the cover up after the fact the fact that the defendants wanted to hide what they had done suggests that what they did was part of a conspiracy to begin with another factor that is mentioned in both davis and in begum one of the cases that the government sites in its twenty eight j letter is whether bystanders would reasonably be expected to be present where the incident took place here the incident took place in a window ss employee break room inside of a custody facility where bystanders could not have been present and moreover before the beating actually happened one of the officers in the room suggested that they remove korea's girlfriend torres from the room and that is what happened in fact in order to presumably remove a witness from what was about to occur another factor is  was in handcuffs with his hands cuffed behind his back there was no need for additional officers and the fact that she did that suggests that she was in on it during the beating gonzales radioed for one five which according to the record me again about that was that to a specific person was a good one of these broadcasts it was a broad call out of far other people to come to the break room before the incident began and that is when deputy louisiana responded along with  didn't know that it was going to be louisiana who would show up she was just broadcasting out to anyone interact and he just happen to be the first one to get there that is my understanding right the other factors that the court consider consider is that the twenty eight j case s suggested as well as some of the as well as davis and mclean are the failure to intervene and i think that there is a completion here between whether the failure to intervene make one substantively liable for a conviction under section two forty two which is a separate question from whether the failure to intervene in turn rationally assist the jury in concluding that there was a conspiratorial agreement other officers particularly when individuals in their custody have a duty to protect that individual however that's not the question i if i'm let's say that i'm a yawa and i did not put out the call i'm just there are trying to get this guy in custody and what not to go so good solace is the only one who puts out the call all these officers russian and they just do they do exactly what happened here ya'll never participate she just stands and watches i don't understand how a rational jury could infer that she had conspired with the other officers just by her mere presence and inaction to have violated his civil right the fact that somebody stands by and watches somebody in their custody or in the custody of their colleagues get beaten to a pulp is something that the court could look to to conclude that that person was in on it particularly given that she didn't disclose to anyone to have to the fact something had gone wrong that there was a violation of protocol rather she walked out of the room laughing and joking about the possibility that she could fake her own injuries in order to cover up what had happened so i think it is appropriate for this court to consider her in action and her participation her watching or as she wrote about in her own reports her potential participation in the incident did you all argue a trial the jury should believe that part of her report that she actually did participate in part of the beating i think the government pointed out in its closing or according to their own reports were involved in the use of force the government pointed out that there was a photo of blood on eye on those pants and on her boot the evidence was introduced that she had gone to seek medical treatment for her suppose that injuries in her participating in this incident so it was entirely rational for the jury to look to that evidence as evidence of the defendant's participation in fact that is what  be a couple times you said in on it which to me is sort of ambiguous in on it could mean prior agreement and then on it could mean that they participated which you also say sometimes participation is not enough for conspiracy is i think i should  try to be more explicit in my terms but i would suggest you have to have an agreement right that's the whole idea yes so the idea is when the person responded to her call the minute that person walked in the door there was sort of an instant agreement oh i see this is one of these awful exciting cases that we're going to beat someone up i would i'm joining the agreement is that the idea is i don't think that the court needs to pinpoint a moment in time when someone we have to wait and see at least some moment when it might have happened only over the course of the incident the court has to be able to conceive that these defendants were in a tacit agreement to use on reasonable force against the victim and that can be gleaned from the entire of the incident itself which involves not just the beating but what led up to that this is an incident in which a man is brought in handcuffs first his girlfriend is brought then the man is brought in handcuffs inter group he's prend up against a refrigerator face first with his hands behind his back is also there while his hands are raised behind his back quote so that he could feel some pain according to the deputy who exercise not force they are there when they call people out on their radio and they were there throughout the beating the fact that they also insist that i only herself instigated the report is finally another factor that the court can look to to determine that say it's one that once they enter the room then it becomes an agreement with the people who enter the room pursuant to or thereafter i would take the position that she has agreed with the people who are in the room before it starts or that she is  forming an agreement at that point with those people and that in addition the other people enter into the room and joined in not agreement just as one conspirator could be somebody who joins a later it turning then to school in a way it's hard to believe they would do what they did unless there was some sort of task i agree with that point completely your honor and i don't think that councils characterization of this as a single or one victim incident makes a difference the cases that the government side in its twenty eight jail letter including the second circuit's decision in lopresti and the sixth circuits decision in the land all involved  victim over the course of one evening or one day and those cases had no trouble concluding that the defendants had entered into a tacit agreement of course the government would reiterate that the court must adopt the interpretation of the evidence that is most favorable to the government the fact that the gonzales and i also argued at trial that their reports were true also supports the idea that the government or the jury was entitle to rely on that it's about the moving then to the juror bias claim the case very clear and in the circuit that when a juror unequivocally an unambiguous that he commits to impartiality that is enough and this sure is a case in which actually the circumstances were much more suggestive of bias than here that germany was the dance instructor for the homicide victims daughter in the very taste that she was going to sit on the jury for she ultimately never even said unequivocally unambiguously that she could be impartial she said quote i think i could be fair so i think that was sufficient to find that a district court did not abuse its discretion in refusing to dismiss to not a fair term maybe to judge king but i think you know what i mean there's a sense that the jurors the judge basically took i'm not going to take no for an answer out of suit and that's what provoked the juror to eventually get around to yes  eggs in not basket of the argument that the colloquy was inappropriate was specifically waived and if you look at i always excerpts of record pages seventy four to seventy five after the entire colloquy took place the of asked the the judge to ask open ended questions which they're now asserting the judge had an obligation to do they could have asked the court to ask additional questions they could have asked the court to allow them to ask questions there were possible remedies if they had wanted to could l this issue they chose not to but i think what that really reflects is that what happened below when the defendants won and manufacture a claim from a cold record they can suggest that judge king did something very wrong when in fact at trial nobody seem to have an issue with this and the cold record what they can glean from it now i think is a serious misinterpretation of what judge king actually did were you there i don't remember if you were drugged i was not there one of my colleagues in the he fairly coerced but you are but i understand where they're coming from you read this transcript and you know the judge was what was clear the answer that he wanted her to get to right i don't think there's any can way you deny that write so i have appeared before the judge king probably not as many times as your honor has but in my experience i found him to be fair and i found him to be reasonable and i found him to be thoughtful and those are the care adjectives i would think i would use to describe this coll y it was lengthy that's not a factor that should weigh in favor of finding it was inappropriate but he expressed empathy he acknowledged that we're all human beings he took great pains i would say to intuition suggests that's true but i'm wondering if it's well founded i fully agree with your intuition in fact the government took the position it's brief that this is a disguised rule for three objection to the evidence and that is what this is  case a juror especially one in which there's a serious instance of abuse it is likely that jersey looking at the evidence are going to be trouble ok can i very strongly disagree with you on that and let me just see if you can persuade me otherwise let's say that in this case the juror said after seeing the photo your honor it doesn't matter what evidence the government puts on this guy is guilty and i'm sorry i came in here with an open mind but after seeing that i just i cannot be fair and just six to that i think you would concede that that person must be excused for cause for i can see that ok so that has nothing to do with four three i mean the evidence it was what it was the juror even if the jurors reaction to it was irrational if it was nonetheless sincere and they were saying i can no longer be fair and impartial in light of this i'm going to convict no matter what the person has to go so the only question it seems to me is whether in fact the colloquy that led to this juror alternately saying i can be fair impartial was you know was sound and  seem i mean that standard is no different from the standard we would use in a for cause challenge on board you're right i would take the business and the judge at least has some discretion to determine whether the jurors reaction to the evidence is a reasonable reaction that other jurors might have or reflects impartiality or bias why does it matter i don't think the judge gets to decide whether the jurors are reaction is reasonable it might be totally unreasonable but if the person nonetheless can no longer be fair and impartial in that and that is made clear i don't see how any there's any way you could say that a defendant who's convicted by a jury with that person on it got somehow a fair trial i don't see how you could take that as if the jurors specifically said i cannot be fair and i said man i am i'm a guilty verdict vote no matter what it doesn't matter if it's reasonable on reasonable rational iraq ok but that's not what this juror said and in the context of a juror expressing concerns or troubled by the evidence or being even very very troubled or extremely troubled or however the defendants want to characterize this when the jury does not say that she cannot be fair and impartial the judge has to exercise his or her discretion to determine whether the jurors still can serve fairly and impartially and here that exercise discretion was appropriate the one other point i would finally make on that or two quick points is that there was no video shown in opening it was a still image it was introduced as part of exhibit six and there was no objection to showing that image in the government's opening statement that's all that  pages two to three and eight to nine and then the final point i would make on this issue is that the tracy case that the defense has relied on now said specifically that the juror in that case quote steadfastly maintained that she could not follow the law or be objective that is the hypothetical i think that judge walker is introducing that was not this case the final issue two issues i nineteen lluvia on those arguments run into a solid wall of out of circuit authority that disagrees with every point that miss kimble windsor made the no case hold there has to be a preexisting document in order to falsify or make a false entry into a record as judge walker pointed out the legislative history does indicate that fabrication is part of false a vacation or eleventh circuit that there must be a brand new document all of those courts have rejected that idea what about the intent part of the argument respond to them so this is a moving target the defendant can i tell the investigation or proper administration of any matter within the jurisdiction of any department or agency of the united states the government's position is what that means is that the defendant must have an intent to impede instruct or influence an so so in every single case in which an officer who has used excessive force or not some other way under color of law violated a person's civil rights constitutional rights if that person falsifies a report about that conduct th i disagree with the characterization of that as a very similar statute that statute is about tampa it's entitled tampering with a witness victim or an informant and it prohibits specific only in ten eight intending to prevent the communication by any person to a law enforcement officer or judge of the united states so what that statute is trying to prohibit is defendants who interfere to prevent information from being given or provided to a federal officer that is why fowler and johnson have said that there must be a reasonable likelihood that the information that the defendants in those sorts of cases impeded or prevented or obstructed would have reached a federal officer and that because section fifteen nineteen includes no such language  parties interpretation of the statute without specifically imposing a federal nexus and reasonable likelihood requirement that fowler and johnson impose in fifteen twelve context and because this is a review of what most are playing  saying first of all addressing the preservation issue the government raised i would point the paid seventy one of ms i allas record excerpts particularly to the statement of mr smith who was her counsel and beginning at the end of line six mr smith says and then the court asked her the final questions which were quite long and involved and when she answered yes he didn't answer affirmatively just it's hard obviously the records not going to reveal it but she whispered it almost it was a whisper and she said it very tentatively so i would submit that at that point on page seventy one the conduct of judge king's colloquy was put in there then on pa seventy four which is the page that the government referred to on line eighteen the court says that's why we made inquiry and that's why the record is what the record is other than that any objection to the court's inquiry itself so at that point the court was soliciting other objections you know in addition to the record being what it was so i don't i would submit that the statements and issues that were raised in the colloquy were not waived on page seventy four and that moreover it was affirmatively put in issue one page seventy one second of all i would make a supreme court case bias and i would submit that the same result is required by the ninth circuit case of dire vs calderon which is cited in my briefs and that in dyer the court held that where colorable evidence of bias emerges the court must conduct an investigation and there's certainly nothing i would submit in either of those cases to suggest that bias means something different after of war gear than b then during  dire so i would submit that the totality of the colloquy here and including you know such phrases as you can't just curl up in a ball and stay in all rooms which i would thank you i just wanted to address the standard of review on the intent element and just to say that the appellant made a rule twenty nine motion and that preserved the sufficiency issue and this is a sufficiency claim that we're making johnson and fowler actually propose a lower standard of you then have review then what i was proposing i was proposing beyond a reasonable doubt and this is the reasonable likelihood standard is actually lower i'm surprised that the government isn't happy about that except that i think that they are they're