what was required under the case law but i read the government's previous arguing that enhanced my defense based kind of alternative grounds other obstructive conduct and i would that issue is that the same district court during the trial proceedings fail to hold an investigative or evidentiary hearing regarding the issue of the sleeping jurors the government's argument is courtroom or the staff that i was referring to the judge never asked and i never specifically stated who there was but in the courtroom there is only the judge the court reporter the clerk and the fact that it's an appearance of justice that we're trying to preserve and we want to hold the public to respect that we know that jury duty isn't something that's highly looked upon isn't something that people want to do all the time they do it grudgingly and it's not something they wanted to and i think it's important this is an opportunity for the court to highlight how important it is to uphold that appearance of justice where we came down to in  jurors and i informed the court that i thought she noticed them i thought she looked at her and talked her sleeping and i asked the court to question this juror what the court concluded was we're all something a little more not as as leading as the judge did in this case he said you've heard all the evidence and you weren't just sweeping she just basically said yes but then i thought you had an opportunity to ask questions of that you're correct that's correct judge and it seems to me that you'd want to set the record straight in the face of that denial it was incumbent upon you to ask questions well i would agree that that's how it would appear at first sight brought in with the attorneys and that he was questioned as to whether or not he was sleeping on the judge's clerk informs us of that so i cannot i think i was on i indicate this in the in the transcript as well kind of in a catch twenty two i mean if i could start asking questions most to the point where it becomes a cross examination i mean she had already said no i wasn't sleeping and yes i heard all the evidence then i'm going to have to kind of be in a position where i have to examine her and get the information that i want only that i have to shit that point but it seems to me that the question and everything is done with that witness the alternative is to say that's exactly what you're saying which is you can't put me in a catch twenty two position but here's a series of things you could ask this juror because just you know that like they asked was it mr whitney or something did you miss anything important no i'm sure i didn't hear you know what it's for me that's the point of the ridiculous question of course  and so i think what we have to decide is whether the judge should've asked different people and has that kind of what it boiled down to whether i was going to go but however i agree with you when i was reading everything in preparation for today's hearing i also agree it kind of like just kind client and so but i agree with you that it seems like we should have if i wanted additional questions asked we could have done it in a way where it was done through the judge that's that's done a lot during why dear some of the judges will not allow us this and i would ask questions but we present our questions to them and i agree that is something that i think should have been done but as well on top of that juror potvin was there and i had told the court that i thought she was sitting in the middle of both of the sleep users and they just said well what does she have to add that we can't everybody speculating well she gets to go in the back and they all talk when they're back there you know very easily jurors also told her i was you know she's she had a very different perspective than we had and i think a smile indicates that well we don't ask the jury about the deliberative process or anything like that we could have asked her do you have any knowledge about whether or not jurors sallust leap in and this is important moreover because as the government is going to argue and be argued in their brief they indicate well we're not the defense isn't arguing sufficiency of the evidence and there was deficiency of the evidence and so no harm basically but what i want to highlight to the court is that again the appearance of the and my client's right to a fair and impartial juror that a jury that is awake and able to process all of the information and on top of that it is not this deficiency of the evidence but the credibility of the jurors that we have to jerk indicated that she hadn't fallen asleep if it came out that she had fallen asleep then that has when her farther implications as to whether or not she told the truth and she's a trustworthy and impartial juror and i think that's where the importance lies in the fact and the burden on the district court judge to go further and he indicated we can ask your part then and i did indicate at that time i said if we don't do this factual inquiry it's an it's an appeal le issue we leave it open and you're going to four minutes for the rebuttal ok i'm i just wanted to make that last point that we did indicate how important it was to lay that his actually had told the defense to lie down in the vehicle i would point the court in the direction of exhibit a at approximately minute twenty four fifteen the question when this follows what happened the friend it was for him to the defendant return to the room to pick you up he told to get in the vam ok downstairs question when you say you are referring to the friend when you say he are you referring to the defendant that's right question what happened after he told you get in the van what stated well nothing he just told he told us to lie down more people god then soon after we were stopped question when you say he told us to get in and lie  down is he referring to defendant that's right that for clarification purposes so that the government's very fierce correct as to that now as to exhibit nine it is true that that particular material witness alien did say that the unloading out of the vehicle the to that the court found had insufficient evidence workpeople that it been in the car that it had been alleged to have had the merit of the cocaine or the narcotics in it but there was no connection shown they knew the drugs were in the car in addition they said that they'd be picked up when they came into the united states illegally he then drove them to the motel room he had rented that motel room through twenty eight that is in the supplemental excerpts of record as number two he took them to that room told them to wait and they'd be taken to phoenix he brought them food he didn't have to go out so much but he had them hiding in that particular location the following day here was the motel with the other coconspirators he arrives there at all the same time he goes up to the room it's observed by a florist watching this and as the material witnesses testified when in the room for approximately two minutes during that time you have the testimony of the material witness this talking that he told them to hurry up get into the vehicle and ask for exhibit a and to lie down in the vehicle make got inside he then left the room there was testimony from agent flores that he led them to that particular van that the real it can be a conspiracy stand even if the defendant's connection conspiracy is slight and we have the case also saying that bringing food aliens can be reasonably construed as  of the conspiracy and that's what we have all here we have not only just the bringing of food we have all the other things looking at each of the things i just talked about picking them up driving the motel telling bringing them food telling him to wait coming back t next day trying to get in the car telling them that they need to lie down in the car actually being in the geek vehicle even in isolation individually these are the type of things that would show acts in furtheran is just found specifically that this is just perjury perjury perjury that the mandates of done again and jimenez's must be followed but looking at the non exhaustive list that is stated within the sentencing guidelines dollars u s currency states that they can be upheld if there is a reason found in the record and the record does provide that the defendant during the material during the miranda hearing said i didn't sign that form for my side i was in english then during the that there actually has to be actual obstruction but i mean just just to be clear your position then and then even though the judge didn't point to any of those things that we should go through the record and try i believe that that would be appropriate because the record does provide a viable basis for that obstruction enhancement and i'm going now to the rest of the statements here talking about where they talks about the material false statements or the material to a judge or to the law enforcement that specifically in looking at the the verbiage because it talks about perjury perjury surgery that the same mandates of dunnigan of men as don't apply to  the case and was able to fairly consider the evidence and the course of you is limited whether there was a determination that the defendant's fifth or sixth amendment rights to a part of the jury are question was asked did you observe mr whitney's leaving government did not observe it work and did not see that and found there was no basis now when he was brought in he did say that he had missed some parts of the thing part of the trial the for mr mom real miranda he said he was i'm sure you sleep but he did take or see her taking notes so combining that plus short on a quizzical statement i was not sleeping i didn't miss anything it's very taking notes and with me and says that they're the best person that would know just like if you had had a doctor and they say do you know how do you feel right now i feel great i think that's the best person be able to tell thanks kate you feel great rather than a correct or honest and looking at this there was the investigation and looking at that it's within the court's discretion to the extent you have these hearings and going through also very shocking about that even if the juror was transportation of illegal aliens the observations of agent flores and agent berry none of those allegations were there and also his confession has to be paid for a debt previously owed to him and he admitted that he had gone into room one thirty investigation i think that encompasses the materiality aspect of any statements made at that time we can just rely on the sufficiency of the evidence here we are entitled to a impartial jury in a jury that is an alert and observing and processing all of the evidence that is presented it was presented during the material witness depositions if the evidence wasn't material or substantial then why is it a material witness deposition it's almost an oxymoron their depositions must have been material or they would not be called material witnesses what i want to highlight again is that the fact that the judge the lower court judge has a responsibility to uphold the proceedings and the lower court judge was told that very clearly by myself i indicated that i saw the jurors were sleeping that my client would be prejudice because of lack of due process and germ this conduct and this is all on my excerpts of record on page fourteen and i said i would ask the court i think if we don't ask the jurors we leave it open for an appeal issue i believe some of the case that i saw is that we need to have a question and answer session from the jurors if i believe i am not the only one that's call them sleeping jurors i think the fact that i put it out right there for him very clearly and this was after i had read through the case law read ramos which in that case the jury came up to the judge and indicated he had been asleep and  didn't bother asking any other questions in that case it was clear the jury himself told him that he was asleep but it now case the court looked at everything the fact that the juror said he was asleep and there was other people a further inquiry that was made and i think that's the bottom line in this case is that the further inquiry should have been made and it should have been made at that time and we're asking the court to remain and and retain jurisdiction while we