by the judge on that and he did resign on page three ninety three of our of the transcript of the excerpt of the record that he did not believe there was that much listen i'm happy to have to go back on the judge at that point says listen well deal with this later everything if i don't that sounds to me like it was half an invitation if you wish to pursue it sounds to me as i was half maybe the judge from god about it but you did nothing to remind the judge you know you you said you were going to rule on this was that i guess that's grafted in so everybody just kind of dropped it that's right and we're supposed to now rule on it a difficult position but that's that's where the last record was left and i don't really have anything further to add on it in terms of that particular issue i think is that does that mean this is a plain error reveal yes i think the more important issues are the later issues related to the case and those are really the ones i want to concentrate on  centrally we had we had we had raised the argument prior to prior to trial that any of the statements of the informant robert  parks that he might be offering about what mr cordova had said in jail were statements that should not be coming in in the government's case and we lost we lost that our courts said that those statements could come  fact mr davis contacted mr coombs who was in jail at the time knowing that mr cordova came to jail dopesick under the influence of methamphetamine robert park messiah argument here it's we did not because this is the time before i counsel is pointed this is during a period of that the man that the fifth amendment would apply he did not think that it was premature for  evidence in and a case of rebuttal was improper and it was improper because of two reasons it was improper rebuttal and because of the first reason we contend the court rule the third point that i wanted to bring up is that  the other argument we raised and hopefully it's not confusing may be the argument is that the nature in which mr jones was used as a rebuttal unfairly prejudiced the defendant in having a fair trial because of the joint you're issue because he was he was in a position where he was being tried on both the benefit that he was expecting from the government terms of this freedom mr koontz in fact when he contacted mr carville that he admits it's actually in the record that he had a plan for witness of because we did it because in terms of to defend yourself on the witness tampering charge you really have to bring in in detail all the statement that we were contending that coots should not be allowed to bring up in the firearms charge namely the conversation in the conversation between hooves and court bill that however has tremendous relevance in terms of hatching the plan to engage in the witness tampering and the question as to whether or not that behavior on the part of coons could be could advance could have been used against the government in the witness there was a severance there could have been an argument raised as to whether or not that could be used as a as potentially an argument for somehow that there was entrapment could have been used at their severance however when the cases are joining it's you have to fight against they in the gun case all the statements regarding hatching the plan are  are basically prejudicial to your defense in the gun case however all those statements might be useful in terms of in terms of the entrapment argument and b in the case of the witness tampering charge joined with the felon in possession charge meant that the jury would find out that the family had a prior conviction which would not objection to the joint so i suppose there are also as i used to say there was an overlapping concern the other way that the that the gun charge would be compromised by the jury  learning about alleged witness tampering yes but the district judge enjoys a certain amount of discretion those of those with judgment with respect to the defendants ability to defend against the gun charge because of the denial of severance just actually the way it plays out  the the the way it impairs the ability of the fan that you defend against the the firearms court charge in relation to you have the case has been severed these issues could have been fully  fully dealt with in terms of how mr mr simms in fact became a commission agent of the government in terms of how us and you were precluded from doing that because of the jointer no i suppose we could have done it we could have done it anyway but it was it was effectively it would have  ensure the conviction of the guy yes you know you've got about thirty five seconds left why don't we let you save that for  lot of me on the defendant in this case challengers the jury selection and i wanted to point out an error i made in my brief i made a mistake the government used all eleven challengers i should have said all seven challenges what happened in this case your honour's is that we had just the sheet of paper that the court presented to us and we took our challenges to defend it taking two and then i took one minute two and so forth on the third of the government's challenges i challenged cases merino thereafter i challenge four and five and six us exactly when you're supposed to object to a challenge to a juror and i'm just looking over the court's decision and counsels the citation to confer for us i found i believe the solution for this case befor today with respect to the limited babson issue presented by a challenge to a single you're a single juror and in twenty years of bats and there's never been a case i could find where there was a challenge based on a single challenge by a peremptory challenge by a prosecutor or and have a bath and hearing at that time in deference to the trial court it was not in my opinion necessary for him to immediately do that but he waited until after the jury was the jury  veneer was selected and sworn and the other discharge had he brought it up earlier the government was prepared as we indicated our record to withdraw the objection and let that person come on to the jury panel for the reasons stated in  constituted plane air that's of course defensed objections today and his challenge today and surprise me quite frankly that you could waive an objection you could allow the jury to be discharged and then raise a bason objection after the fact and have it considered as plain error on appeal but that's what our circuit is healthy now we go to whether or not the prosecutor's stated reason was on the single cases in those days we convicted them they were called convicted of being a father and the only thing different between that and a criminal case you could call into the witness stand and so i had of a knowledge of perturbing cases i believe he was a returning defendant i don't think you'd appreciate a prosecutor i also said he didn't have i didn't have good eye contact with him and judge pleasuring if you sat on the panel of the case i just found last night which was the verses gomez and i showed it to defense counsel this morning prosecutor in other words is a prosecutor racially biased and if you lie about it that's really what it comes down to on the bass and challenge is the prosecutor racially motivated to keep people of the defense or the defenders race off the jury because of racial animus and is he giving a legitimate answer when asked by the judge why did you challenge this jerk in other words are you lying about in your case where you set a personal history it was acted i write the thing you know your honor you didn't you but those two things come to come to collide in the same case here which is personal history was found in that case not to be race based and also the the case involving  not attention is an inability to relate to other jurors about somebody who was not making good eye contact i didn't know about this case i had researched that some before and i didn't know to say i contact is a neutral  ons were delivered to judge panel and what he could have done and perhaps should have done was make a final determination and say that third step of bats and is this a legitimate explanation do i accept the prosecutor with his explanation in this  and that the court was free to do that we were both free to come and say judge we'd like to have you make that decision as a matter of record but it it went past both of us we just didn't do it it was not a perfect world the case was tried in a day and a half weeks we picked the jury in ninety minutes we made beginning at nine thirty on one day till two thirty in the afternoon we put with this is on the stand left and right until we argued for twenty minutes apiece and i form four minutes in rebuttal the jury got it done two thirty the i thought you described one of the elements of a baptism charges involving racial animus on the part of the prosecutor mister it is not really right i mean of course if you could demonstrate racial animus on the part of the prosecutor that would be pretty persuasive but isn't the real question whether of the prosecutor pursues a line which lead to exclude a potential juror because of  race but if you if you will without necessarily attributing to the prosecutor personally animists but just saying prudentially i don't want blacks or hispanics or or white or whatever on this jury i may like them but but it wouldn't be useful for the purpose of a prosecution much better today that you understand that distinction i believe you have the prosecutor there's two ways we can get in trouble on that and one to challenge all the men or challenge all the women in those cases we saw the sky chief case where the big challenge all the men off so they could have women sit on a sexual discrimination case and we've seen cases where i believe one of the members of th panel had a case where they challenged all the women off a prosecutor from montana kicked them off because all the men off in a sexual abuse case of a defendant wanted all the men off and all the women were there and they convict and they said the gender  necessarily acquit the defendant that would be wrong and unconstitutional and reversible error i believe that's what the holdings are babson now the issue of race is a slippery one because hispanic my first assistant reminded me yesterday hispanic means in latin from spain that if marino could have been a castillian spaniard in the united states you could have been a portuguese speaker who who lived in angola or mozambique or brazil it doesn't help us to talk about languages like i did in my greek i said i thought he was a spanish speaker because i heard an accent i believe mr marino was of the same ethnic background of the defendant in this case that was called in our present as white hispanic and hispanic is something our census bureau uses probably to the consternation of people who are would otherwise call themselves latino or latino or chicano but we call that hispanic in the ninth circuit as hell that's a recognizable distinction for bat purposes and i came across a case just morning i think with huffman which cites ninth circuit approval that recognizable group is fat so that's what we have in the nights or i think it's probably good for you and that the judge properly could have considered it and that you can now consider that even though it wasn't done in perhaps the most precise and timely manner that it was racially neutral and it was not evidence of purposeful discrimination as i said no other cases held that a single cha has been sufficient usually is two and three or four all the men are all the blacks or all the whatever i'm i don't i don't want to waste your time because i know you want to get on to other issues i was just growing a distinction which may not be of use and the question of whether the that the action of exercising their peremptory challenge reflects the determination i don't want a person of that gender or that ethnic instinct driven and it intuition of the parties we can always point to specifics it's kind of a feeling we have that in my case i said i'm i kind of want to just drove there because he spoke spanish and i think you figure out jesse cordova was trying to speak spanish to avoid being detected and that he would have been good for the jury but on balance i said i believe because of the paternity issue we're not going to like me and so i kicked the juror off and in balance i wish i would know i wish we could have had him back on the jury because i think the was overwhelming overwhelming in the sense that the pendent from the very beginning possessed a firearm repeatedly as just as testified to by several defendants he was found on the he never got  gun i see so when you say he have this gun you're telling me that you agree with the decisions of the jury i do you want to be close to our first witness so you're so you're not talking about uncontested he had the gun you're saying we won we won because of the statements that were permitted by the court the defense lost below when the issue of the messiah issue or the miranda issue judge planner held statements made in the county jail to that as bennett's friend richard parks was those statements were admissible and what the jury didn't get to hear that i had a chance to put it produced for them was that offended and he talked about that's the gun we both owned at one time that's the gun that bonnie gave cly he knew about that gun in the defendant told him about how he got caught with it and then he had gone in and he asked jack to hold the strap and when he came back he thought a woman saw him in the parking lot so we put it in the in the red sweater and the police caught up with it  did you speak with that that's going to regarding the person responsible for the charges of felony possession of firearms yes sir what did he say regarding liability who was guilty yes question whoever possessed it yeah what did he have to say about that that it wasn't on his person that it was in an automobile somebody else was automobile and possession is nine tenths of the law did he tell you in the county jail what his intention was regarding blaming somebody and what does this  robot he ever tell you that you have my ask question video ever tell you jack i've been off with the person responsible answer i don't believe so are you sure yes it proves your honor that jack ivan off his good friend the russian speaking jack i this companion was not viewed by him jesse cordova in jail as being responsible for that gun but what was that rebuttal we're calling a vendetta and his testimony of adriana this product injected a black gun into the mix a black gun without a clip and she took the stand to say jack i've been off was at a place that joe joe's with me and he had a black gun and he was careful not what he's prints on it and the evidence was that it had no clip in it and that black gun was something jack said i a paraphrase in here i'm sorry jesse is in trouble for what i did i'm the one who possessed the gun he's the one who at the same residence when he was threatening another man steve canning i wanted to prove that i wanted to prove that jack kenny saw the defendant with what i wanted to prove was july this is not the right day jack i've been off didn't have a black eye on the black gun that they had together didn't have a clip in it and she's making this all up in order to try and cover for jessie or go over her friend so i offered rebuttal testimony that i didn't get to put in was that jesse cordova the day before had a plaque that didn't come in but i was able to ask her about the firearm that she had and present her with with these other two guns to see if she would rise to the bait and say yeah that's the blackout he had but she didn't do that so this was cross examination effort to prove that she was lying committing perjury in my rebuttal was merely to a direct attack against her when she said jessie chordal was not guilty it's jack i have an office building he told me it was his fault that he was he got in trouble that he should have been in trouble for that black gun and what i was trying to show was there's more than one gun around here there's a gun t jack had at one time when he momentarily handled it that didn't have a clip then there's another black gun that jesse cordova had the day before at the same place if she could have been confused in other words she could have had the date wrong i'm entitled to prove that  challenger and that's why i offered that rebuttal yada i've got one minute left and i'd be glad to give that to mr price so he can respond appropriately it unless you have any other questions for me on earth fifty three seconds plus thirty seven