use of restraint the trial courts requiring the defendants to be restrained throughout the proceedings in his matters as well as what we believe is the improper removal of juror number twenty doing deliberations  jurors solve the shackles on her case long gives us the idea that there's other things that can be considered whether or not the use of shackles could interfere with a person in or  honor is there there's a question of does it address whether or not to defend his ability to participate in their own defense and there are just certain things that the trial transcript would not so if a person is sydney or sample your honor mentally they're aware of that that's going to affect their government of us the bengals the fifth circuit cases where no reasons are given by the district court in it's not apparent that the shackling justifies that the second is justified to defend it does not need to demonstrate actual prejudice how in this case you know that the jury or your argument that you know he couldn't communicate with counsel may just help us understand how that happened not the argument that could be a basis on this of these individuals testified in there only to fish on or we don't know how the use of shackles always the will to make the decision it is better for me to remain seated at  crimes there was no history of violence in any of these defendants back going on and there was no doubt all the commotion that was caused there in the extradition hearing no one the agent testified to my knowledge he could not personally testify that he was aware of their and your honor again it was imperative it's just like today there are most people in the courtroom security was needed and some would say is hey on this particular case these individual inner court and security was needed that's not an indication  massive dark is what motel matters on there so again the record before the court is that throughout all the proceedings they participated they were cordial respectfully they are bought about the court's orders so there's not any reason we don't believe that this made no reference to the individual sleeping it made no reference to the into an individual not following the instructions of the law after the first note was received there was a second note on that was received the wanted time the court decides to essentially what i call the juror form in your honor when you review the record your honor it is not that journal twenty was not on the law it was a juror number twenty head especially we believe what it shows that they had a difference of time or two was important and this is a three and a half weeks trial we really have no comparison because we don't know no one ever asks other jurors did you go to sleep did you see anyone else go in to sleep it is william on or there was no point they're trying to do it would have noted that you want to use some point even the what was interesting your honour's after the fact the government's attorney say it i think i may have seen him sleeping a time or two but again your honor they'd never brought that to the court's attention during the trial as such and we believe that they way their right to contest that issue all over the finish owner essentially wait is will their due process and they stated that they desired to continue with the jury and so we don't believe that there was sufficient there there were deliberations he made references to some things that's an indication that he's participating not that he's sitting idly refusing to contribute to the deliberations so we believe your honor all of the evidence shows that he was participating he was court in this case conducted a trial that was meticulously fair in every respect it likewise conducted a thorough sentencing at which it made accurate findings of fact correctly calculated guidelines based on those facts and then imposed sentences that were within the guidelines and sentences that were proportionate with the offenses that these defendants committed now there are a number of issues that appeal i think that are brief covered each of them in some detail so i'm not going to try and retread all that ground this morning i would however like to respond to a couple of the points raised by my colleague on the other side during the opening argument and first being the restraints that this district court found there  or strains at any time second the record is equally clear that the district court took very thorough measures to ensure that no juror would become aware of the restraints and chief judge stuart you mentioned some of those at the beginning but the district court actually had custom wood panels brought into the court room to put in front of counsel table so they would conceal the restraints the district court had these restraints taped up in padded so there was no chance to make any sound and the district court also did away with the normal practice of the parties standing for the jurors when they come in and out so that there was no way that in the movement these are strains would ever become visible and so the lack of any sign that the jurors perceived these things we submit is fatal to the appellant's argument here now there was some suggestion from my colleague that there could be other effects of these restraints apart from their effect on the jury and there is some reference in that in some of the cases such as the fact that the restraints might confuse them more affects their ability to testify but none of that is present here either the it's a kind of interruptions  you know an inability of defend is to you know you to be near council or whatever there is not your honor my recollection from the trial and i believe the transcript reflects this also is that each of the trial counsel initially was not seated next to their client and then that's as the evidence began that they actually moved and were next to the client so just like in any other trial they would have had the opportunity to confer while the evidence was coming in and then the trial also had the ordinary number of recesses and breaks and things of that nature so there's simply no evidence and there's no inference that these restraints would have impeded the communication ability regarding the  defendant's choice to testified the defendants of course at the close of the government's case were offered that opportunity and given the opportunity to consult with their counsel and each of them on the record said that they understood the rights of their waiving and they did not however there were two cooperating defendants who were in custody at the time of their testimony they peered in the courtroom restrained and the process that the court used there was to bring the witness in and have the witness take the witness stand prior to the jurors coming in so in that case there was no suggestion the jurors would see the restraints on those witnesses and i think it's reasonable to infer that the same process would have been used had either of the or any of the three defendants chosen to testify now unlike here had not articulated any particular reasons for the restraints and where the record revealed that it was a possibility that the jurors might have seen them and soap a negative help that in those circumstances the burden is on the government to show that there was no actual prejudice here is exactly the opposite situation and so i think there's a reasonable inference from that that it's the defendants who have got to make some showing because otherwise if the absence of any evidence one way or the other was enough to infer prejudice then the district court really would almost never be able to make the decision to restrain defendants you know without without causing problems at the  the court did articulate specific reasons here those reasons were twofold first was the agent case agent testimony that the defendants had caused a disturbance during the extradition proceedings in south africa a so agents testimony i would respectfully disagree with co count with the opposing counsel did not open any possibility that it was members of the gallery who were observing those proceedings who caused the disturbance he did specifically say it was marshals and again i would disagree that the marshals advice in this case was specific to this particular trial and would not apply to every trial in the country  and united states versus fields from this court says that it is proper for the court to rely heavily on the advice of the u s marshals when making this important termination moving next year honors to the issue of the removal of juror number twenty there was some discussion about the effect of this juror sleeping i don't take the appellant's to contest that he was in fact sleeping the argument from my colleague seemed to be that he may have been sleeping but it didn't have that much of an effect on the trial i think the common sense as well as the record indicate the opposite multiple of these jurors colleagues  testified to the extent of the jurors sleeping they testified that he slept multiple days sometimes multiple times per day sometimes for extended durations and that that sleeping happens during the testimony an evidence so we're not talking about sleeping during an extended sidebar or nothing important is happening but we're talking about the really meet of the trial and the stuff that he's going to need to be able to deliberate properly this was a three week trial  but every day of that three week trial was important so the length of the trial respectfully has nothing to do with the affect of whether a juror was sleeping during that trial and it's also somewhat beside the point that ne parties nor the judge brought any sleeping to the court's attention prior to these notes coming from the jury counsel observes that judge overturned is an experienced trial judge certainly we agree with that and based on that to perceive things and he knows when he's able to rely on the credible testimony of others and judge rose and drew on that experience in determining that the multiple members of the panel who testified about the extent of the jurors twenty sleeping were sufficient to make a finding that this juror was on able to discharge his duties now the sleeping i think may be the most important factor here but judge overturned in fact identified several other factors that cause the church twenty to become disqualified air position would be that any one of those factors standing alone would have been sufficient but all together in the totality of the circumstances certainly there are more enough to compel removed those were first the sleeping second the fact that he was not candid with the court when he was asked about sleeping third the fact that he was failing either because he was unable or because he was on willing to follow the court's instructions and forth that he was refusing or failing to deliberate with the other members of the panel and to amplify that fourth point a bit your honor the record does not show that this juror had a difference of opinions on the merits if he was a vote for acquittal and the others wish to convict that would make him a holdout but that would also make him someone who is actively deliberating with his colleagues  juror who we can't get any opinion from i'm not sure whether it was signs i believe that during the four persons testimony it may have came out that she was the author of the notes but i would have to check the record on that the second note went into more detail about the problems and actually number them one two and three and those related to the sleeping it related to the western union issue that counsel alluded to before and it also said that juror twenty was not following the court's instructions and so i do want to mention that western union piece because it came up in the reply briefs and it also came up at argument in the reply brief there was some discussion over whether it would in fact have been proper for twenty to consider his own experiences or beliefs about western union even if they were contradicted by the trial evidence now whichever way that issue goes that's going to have no bearing on the resolution of this issue because the extrinsic evidence instruction was one of three instructions that the district court found this juror was failing to heed and the other two i would submit were even more important one of those was that your twenty apparently believes that the attorneys closing arguments were evidence that he could consider which is flatly contradicted by the court's instructions and the other is that he was allowing sympathy to guide his deliberations which again multiple other jurors testified to so the western union whether that was right or wrong is largely beside the point and then i would also just briefly address the suggestion by my colleague that the misspelling of western union in the note should be taken as somehow an attack on the intelligence or twenty i think frankly that's worse than speculative and i think if anything it was the four person herself who misspelled this note but that i would submit is entitle to absolutely no again your honors there's just no evidence in the record here that there was a difference of opinion with this jerk the record shows that he wasn't presenting or forming any opinion whatsoever and again the testimony of the jurors suggests multiple reasons for that maybe he just is not capable of following the court's instructions there was evidence that he had trouble comprehending them and that he would retreat to the corner by himself and simply read the same one over and over again but whatever the reasons he was not a holdout this was not a difference of opinion on the merits and so the speculative notion that he may have been targeted by his fellow jurors on that is just it's just not there in the record  brown explained that that rule is only applicable if the dismissal was based entirely on the jurors failure to deliberate and as i've already explained the failure to deliberate was one of the factors here but it was one of four independently sufficient factors so that covers the restraints and the jurors issue i do just want to say a word or two about the sentences because the sentences in this case are substantial but the magnitude of those sentences reflects and is proportionate with the magnitude of the offenses that these defendants committed these defendants were part of a fast international conspiracy it was wide in geographic reach it was vast in temporal scope as the court below found  affected numerous numerous victims and it caused very serious harms now part of those harms are emotional harms upon the victims who are targeted by romance scams but more quantifiable are the financial harms that these defendants sought to inflict and so these guidelines sentences which prior to being kept with the statutory maximums were were guidelines of life in the case of mistrial lowden the strike team those were for the last bracket that these defendants fell into under the guidelines was only twenty five million dollars so they better than double that with their financial harms and in other words even if the district court below or to have cut the loss sentencings now regarding the particulars of the remaining issues were happy to stand in the arguments from the brief i have to answer any question court might have on those that seen non emergencies court to affirm each of the judgments of conviction in each of the sentences question that was never asked we don't know if the jury knew anything about the jurors do you think about the presence of restraints because the record didn't show it does not mean it does not give us an answer because it was never also never acts in jury so we don't know whether or not they were made aware of the purpose of our strength but again we don't believe that that's the most that is the only consideration under derek missouri the defendant does not need to demonstrate actual prejudice think more like us that's a very dangerous president to say it in this circuit your honor again jersey number seven there's no indication the when she wrote that note that she had discussed it with the other members of the jury or certainly not juror number twenty eight your honor and again here she may reference to how he pronounced western union in her no i believe she was belittling him your honor she was using it to attempt to