we are glad to be with you today and appreciate your adaptability in the appearing by telephone judge newsome and i have been delighted this week to sit with judge paul do good morning this is today i will be concentrating on issue one of my briefs that issue distinctly deals with the court's failure to grant a motion f mistrial after a twenty two day hiatus or separation of church because of a natural disaster therefore denying my client his due process rights i'd like to advise occur court st and foremost that this is a case of st impression in the circuit i want to take about a moment to just go over so very quickly the chronological order of the things that happened in this case because i think that is very important in this case began and after four days of trial on september th in anticipation of the impending hurricane hurricane irene the defense attorney in conjunction with the government both requested that the court jointly recessed the trial for that they do to the impending hurricane and the problems with travel and the lack of gas and the preparation of their home hurricane am i did hit south florida as it continued up the northeast for the haiti new york and new jersey there was a catastrophic injury there was death there was lack of electricity to more than seventy percent of the homes on september th the defense attorney mr stein quite diligently wrote an e mail to the court administrator advising updating of his situation and advising of the court that there was substantial damage to his home and that he had some sort of limited availability at that point it is important to note that during this time the court is closed dade county public schools are closed the court is open according to the schedule of they'd county schools the society or the community at large dealing with the impact of this hurricane on september th two days later without any further correspondence to any of the attorney's the circuit court judge recessed the trial through september  th the district court judge convened the trial on september th at this point nineteen days had passed and the hurricane while it had already passed there was still devastating effects from on september th the lawyers went into trial and there were two jurors from the panel that had left the country at this time the court discussed the lack of these two jurors and gave the attorneys an option to proceed at that time at the st opportunity to address the court defense counsel stying move for a mistrial he moved for a mistrial on a multitude of reasons but because of the impact of the natural occurrence and he also moved for mistrial because of the time frame that had passed and the extra forces that the jury had been impacted with he further asked the court to consider questioning each and every juror as to what impact this hurricane had had on their lives and whether that they could concentrate on this trial and whether whether or not mr pearson's due process rights were being violated after argument on both sides the court denied the defense's motion for a mistrial and subsequent to that the trial was resumed two days later when the juror team back when the jurors arrived back it is important to note judge that the court was able to go forward on the on september th anyways so our position judge is that due to the fact that these that specific incident a careful search of all of the different cases and every different circuit only developed three separate cases on this issue the most important and i believe the one that the quote should consider is u it is the th circuit case out of out of the th circuit and in that case they specifically say that the court need not only consider and i want to read from it exactly the court says that one of the big issues in this is that the court says that that this case had such a play in this case judge i will tell you that it was a forty eight day recess of the trial but it's important what the court determined the course determined that the the probability that prejudice would result that it had been deemed inherently lacking induced process warranting relief regardless of the defendant showing actual presence and prejudice and that is not only considering the length the complexity of the trial and the threat that the jurors would be in xposed to improper outside influences during recess so what this court as bait with this court is basically saying is that you cannot take the days as the only point to consider i think you have to consider it based on the totality of the circumstances it's not a finite number it's not twenty one days twenty days you need to consider it based on the time frame that has passed and the competitive complexity of the trial and i will tell the court that even though this was a sho trial prior to the motion for mistrial the jury had heard from nineteen witnesses and a one hundred and forty eight dollars exhibits had been presented subsequent to the they heard from a agent a quote unquote summary witness and another fifty exhibits had been introduced so i think if the court considers the complexity which it is defense's position that this case was definitely a complex case and the outside influence of what was going on in this community as a whole you need to consider that prejudice is something that can be implied and therefore the due process of my client was violated this is the only so i think the difficulty for you at least in my mind is that your best case is an out of circuit decision that in all  but if you look at them in the will we judge what is going on judges because mistrust there's only three cases on this specific issue so this is not a case of we have a lot of different cases that i can unfortunately rely upon and i think one of the reasons for that is because usually courts i mean this is not the st case where and natural occurrence or something of extraordinary magnitude has happened during a trial i think that quite consider the magnitude of the reason for the delay and grant mistrial so the examples that you have is one that is forty eight days which is quite as stream but you also have this court specifically saying that you need to look at the extra no forces i don't think there's any higher extra forces than that that occurred during a hurricane and the impact on the community coupled with the fact that during jury selection you spend a significant amount of time inquiring with your jury if there is anything that is of significant importance that it impacts the jurors ability to be impartial during the trial because this beyond a doubt is the most important day in mr pearson's life and his rights have to be protected what happens is is that this judge unfortunately even after asked by the defense never goes back and inquires listen mr smith listen mr praed how were you impacted were you displaced because of the hurricane do you even have electricity in your home have one of your family members been injured none of that is really existing so if you consider the impact that this natural disaster has had on the jury and the extent to which it was delayed you have to consider that the client's due process rights are being violated because of that and that's why i started my argument by telling you that this is a case of st impression and it's a different sort of case because it makes the court consider this is a case where you have unfortunately a l the morning here on ars and very often make record andrea hoffmann on behalf of the united states on this i'm going to i'm going to move directly to the issue of miss trial and please feel free to interrupt me even during the initial two minutes if you have a specific question as to the question of this trial in this case the to tell of the of the circumstances kind of argument that defense counsel is just making a key issue to that would be found in the factors that are in that particular trial but just the time and the potential presence to the defendant the killer in this case we're told before they left the proceeding that the court would be if there's speaking with the jurors and giving them if they ask a warning that they are paying attention to this impending hurricane informs them that they are not excuse that they are still in the middle of the trial that their work the point where king with the jurors schedules and that if there is damage that will cause you not to be able to come to court we will certainly assess that at the time in this circumstance when the discussions are occurring on september t to excuse me the court did in fact speak with the jury a stick seeing what their schedules were because they had proceeded to trial and the timeframe that that they thought they would be completed roughly around the week that they adjourned so being in trial at the end of the month of september is all of your are more than well aware the courts probably didn't inquire as to what people's conflicts and difficulties and schedules were through the entirety of the month of september but at the time that the court made the decision to proceed on the twenty set to th instead of the th they did in fact make that inquiries so if jurors had been under some exten pending difficulties they had the opportunity courtesy of the hurricane they had the opportunity to present that information to the court and none of the jurors told the court that they were unavailable or on able to proceed fifteen jurors that began this case were present for the remaining days up until the time the deliberation when they excused the three alternates so the defendant received his original jury completed his trial with his the issue on this that the reason they had the discussion i just summarized to the court on the th was because defense counsel had brought the issue to the court's attention on the set at the conclusion of trial on september th thing the hurricane was completed and defense counsel then is the one who informs the court that he would continue to have extremely limited availability on the th when the court issued its order on the th there this court states the failure to object later to a ruling that has been a result of actions you have taken during the course of the trial would be a classic stamp example of an invited to the question of prejudice here as judge newson alluded to the district court is ordinarily by far in the best position to assess the circumstances for whether the missed trial should or shouldn't be granted  and i will agree that ordinarily miss trial issues come up in the question of something that unexpected that happened in the trial something that happened in the courtroom somebody is particular on availability those are the more typical what is the restoration of power for example such a fact that the court took into consideration when it extended the time of the trial and what are the circumstances that are facing the members of the community that are out being asked to decide this very important issue and based on and then malice this of their personal experience with this hurting and their personal situation being present to watching how this trial played out what kind of witnesses had come in what kind of evidence had been presented what is left to go with the trial this court found that there was not prejudice to the defendant's right and part of that is true because the court is able to give cur instructions to the t concerns that the defense raised about what could cause prejudice for example the question of the consideration of that didn't the court in this jury instructions not on which means every one of the seven aggravated identity theft witnesses who testified before the hiatus courtesy of hurricane and as well as all of the conglomerate the evidence as to each count separately and we have clear evidence that the jury did such because they in fact acquitted on two of the thirty two dollars counts that were also mostly presented to them for their jury deliberation so in this case we have the unique opportunity of learning that the jury chip could and did follow the court's instructions and that they could and did consider the individualized evidence percent across the span of this case we know that the court brought them back in and told them on the th of september as to whether they would be available and able to sit in trial on the th and the th and  exactly how the agent got mr pierce and drake password and also i was kind of interested in what information they got from the search of those files for the extent that you have time to talk about  as to pass works so i believe that they didn't in fact have to do a complicated code breaking thing at the password system for the computer your honor drake was able to provide on the alternative backdoor entry to the computer system and under rule forty one where the knowledge of having both digital forensic analysis and that particular warrant anticipated that as well it was in accordance with  the information that they found under the password protected i can't answer that question with specificity to say to your honor that this sort of evidence was on password protected portion of the computer and this evidence was under the password protected there's nothing in the record that would delineate that for me as it so at best i'm going to be making an assumption to the court that the drake materials that were testified to by a i'm thinking about your question ron i was just thinking if i looked at ms vanderpool trial transcript so i apologize i'm doing a momentary search for you while i look at her testimony because i may be able to answer that question  records which is exhibit seventy three dollars and that appears to be largely the only exhibit that within under her testimony and i can't tell you from just the cold record i can figure that out and form you after to try nancy your question st and foremost mr pearson made only a very generalized objection he was in fact so he's waived the right to raise this argument at this before this court i believe but even if we moved on to considering it on a plane error consideration because the district will very specifically said can you give me more information and then said i can't make any more rulings regarding this because it is too generalized there's not enough direction for the court to know what you're then directed all of the money laundering transactions that happened with related to the one hundred fourteen thousand dollars range for her son she relied upon the statements of a nor who said that he had at least four other tax preparer employee use that he was providing the fall information on index cards to her to use to create the false returns that there were more than thirteen victims in this that has been a complex and using sophisticated means she reiterate the morning hi i'd like canal respond to the government's position unless the court has some questions to begin with first and foremost the government discuss potential prejudice and i think that that is an important term because that is exactly what we have in this case there's no way to actually identify or prove what this potential prejudice is but it's important to to clarify a couple of issues that the government came to light that we do not agree with number one when they asked when defense counsel asked for the original case to be adjourned for that one day for the hurricane preparedness this was joined in by the government and the government specifically said that he was afraid of the jury not having time to be properly prepared and he himself and his aides had to travel back to palm beach the defense counsel did not request that this be a continuance economy for a certain period of time because no one was really aware of what would happen with the hurricane would have passed within one day or would it pass within you know ten days or twenty days which is what happened in this case so as to invite it in error i do not believe that the government can show that somehow the defense invited  in this case the fact that they diligently advise the court of their specific situation on be th and then the court on its own motion on the fifteen move to continue the trial in no way shows that he invited error the case law here as to invited error is completely different the case cited by the government u s v love specifically deals with a case where a lawyer imply disgust encourages the court to sentence a defendant to supervised release and when the court did exactly that and sentenced him to supervised release and received that benefit then later came back and said oh no you couldn't sentence him to supervised release and i think that would be an analogy analogize to the fact that if for some reason if the quit had granted our mistrial and then now we came back and argued well wait a minute double jeopardy applies that would be invited error because we requested the mistrial in this case judge unlike what the government said the judge continued the trial by finding an order it was not done in court so therefore the st opportunity the defense counsel had to object to that continuance was when they came back to court on the th when he immediately upon his st opportunity to there was an error on his part it would have been possible because of course reclose might affect the clothes were the courts were closed several days after that so i do not believe that as to the cases uninvited into the defense in any way invited in or the other things that the court address that i think that she should be further discussed is that as to the other issue that that  was concerned as to whether or not they had a right when they executed the warrant to go into drake and request a protected password our position has been clear on that  drake requesting a protected password without a warrant without an order from the judge and then based on that getting confidential information that was not part and parcel of the original warrant this is important because the testimony of the representative of drake clearly made knowledge was one of the key factors the court relied upon i mean i'm sorry the government reply the government argued to imply that knowledge factor in this case that because he had had so much business with drake because drake had paid them so much money because drake is like a secondary company that collects the money from the i r s and then subsequently transfers it to either the defendant in this case or the person who is receiving the refund due to the excess then to records that they received from drake which extended illegally we believe the four quarters of the warrant they were able to receive this damaging information we believe the proper procedure would have been for them to go and get an additional warrant to get this information i'm sorry i can hear you how much  judge we would just a just in closing this if one more moment we would rely in our brief for all our other arguments and we would ask the court to to reverse the court the district  decision on the motion for mistrial and grant mr pearson a new trial thank you very much appreciate the presentation thank you