judge pryor is in atlanta and judge corrigan is in jacksonville and judge pryor and i are delighted to have judge gordon with us today from the middle district of florida  appreciate the assistance that you're giving us on these appeals this week i'm pleased to be with you and i would advise counsel that we have three appeals that are scheduled for argument this morning and the court of course appreciates all of your cooperation and scheduling these arguments to be heard my telephone conference and i will also advise you that we have read the briefs and we've considered relevant parts of the record that will assist you in confining your arguments to the issues on appeal mr geddes is the court room deputy and she will serve as the time keeper and she will alert when your time to argue has expired and before that when there are two minutes left to your a lot of time so we are ready to begin with arguments and we will begin with the st one it is the united states versus travis robinson sarah lane direct is here for robinson and carolyn cain is here for the united states and that's duran are you ready to begin that anon testifying codefendant had pleaded guilty and was awaiting sentencing and that issue two in our brief and then i'd like to briefly touch on the issue seven from our brief which is that the trial court erred in not granting defense counsel's request there is no need to advise the jury or its perspective members that someone not in court not on trial and not to be tried has pleaded guilty to prejudice to the remaining party who are charged with complicity in the acts of the self confessed guilty rather extensive curative instructions for the mention of the guilty plea are you arguing that anytime a coconspirators guilty plea is mentioned that we would have to there would have to be a mistrial well your honor i think what we know other in the act related to one of the name victims notably in count five the substantive count it incorporates all of the acts that mr stuckey and mr robinson were alleged to have committed in furtherance of the seriously so what we have is the jury receiving the instructor receiving notice from the government that mr stuckey had pleaded guilty in this case and was awaiting and saying and then the jury was provided judge not the lawyer that mentioned the guilty plea or or talked about it i'm just wondering does this case are you arguing for per se error here and any time it's mentioned those curative instruction may never be enough to be sufficient to cure the error and so i think there's a dispute there but i'm asking the court to make a broad ruling that every time this happens there needs to be a reversal but i think on this case there certainly should be i can tell you that the problem of notifying notifying the jury of the plea agreement was compounded by several fact in this case st the defense had obviously ability to cross examine mr stuckey about the circumstances or the facts related to his guilty plea the testifying code and if gibbs did not plead to conspiracy she was dismissed from the indictment and she pled to instruct obstruction so the jury was left to determine whether mr stuff mr robinson committed a conspiracy and mr stuckey admitted that he did and rd mr robinson's defense was that he was of him in this case and that the women were willing prostitute this event was that he did not force women to do anything but mr stuckey who admitted guilt was re billed as the enforcer in the indictment and that indictment went back to the jury in the jury asked for more copies of the indictment the indictment lays out numerous acts that he was a lead that committed as the enforcer of the conspiracy and the then capitalized on this becky status as a coconspirator in closing the bulk of the evidence  the case was based on claims by women who were threatened and harassed by the lead detective in that case as noted in our brief he stated there are two lists one that goes to leavenworth prison and one to their kids and he stated the judge would be notified if this how she goes home and if this one doesn't she goes to prison so in short there were no unbiased witnesses in this case everyone who came with their own credibility and their own motive fabricate evidence so when you look at the evidence in the case it's not overwhelming the way the government suggests that it is and i think that that's one of the consider the court has to give further there was no direct evidence that mr robins n there was no videotape or other evidence that he was forcing women prostitute or abusing these with and the government offered pictures and text messages and at least with with victim a g m who did not is just drug wilson counsel you said there was no direct evidence that mr robinson forced these victims and the prostitution wasn't their testimony by several of the victims in this case that they were forced into prosecution didn't that's not the issue the issue was whether the physical violence or the coercion or whatever was used to cause the person to engage in commercial sex that even the judge knew try oh you know after the close of the government case the same yet looks like there's some weakness here in the way they went charging this and trying to prove it but if you add in the idea that mr stuckey pled guilty to being the enforcer that he was the person that enforced this and made the girls or forced them to prostitute it adds weight to the government's case that isn't there when you just look at the testimony of the girls who again were threatened by the lead detective in the case and that all came out at trial that that's what it meant he made when he entered them and of course obviously there was a lot of post trial litigation about whether some victims recanted or whether they were completely truthful but i but i think that all goes to this this is carolyn kane birch on behalf of the united states i will primarily address my remarks to the issue outlined by mr issa regarding the motion for mistrial related to the openings the same about a prosecutor an opening statement a trucker did not abuse its discretion in denying robinson's mistrial motion after opening statement i think that the the panel hit the nail on the head looking at this just the way that this argument is coming the carriage of instruction here was not only the immediate curative instruction after counsel statement but there was a statements and openings are not to be considered by the jury is evident the immediate curative instruction and then there was another curative instruction the next morning before evident began the st thing that that's the st in the absence of aggravated circumstances why don't we have aggravated circumstances here because mr stuckey was listed in the indictment as the enforcer the jury was given a copy of the indictment if they also request another copy of the indictment with his name listed in the indictment as the enforcer and there was testimony at the trial that he was the enforcer and i mean in that sufficient aggravating circumstance to potentially prejudice the jury in consideration of mr that the jury had a copy of and requested an additional copy of but the evidence related to mr stuckey at trial was was considerably limited given the vast testimony that there was from the various victims at trial mr stuckey was mentioned related to a couple of and didn't involving he and mr robinson in violent incidents involving both of them and the testimony as the record will show robinson's enforcer and the jury is told that mr stuckey has pled guilty to being mr robinson's inforce or van gogh's and that prejudice the jury's consideration of mr evidence that the jury did what it was told by the trial judge followed all of the trial judge's instructions including the curative instructions related to the mention of mr stuckey's guilty plea i think that's good recall necessarily the word force or there was a particular incident in the hotel room where when one of the victims walked in mr robinson instructed stuckey to tackle her grab her she testified that involvement in a couple of the violent incidences but i don't recall that the word enforcer was necessarily used and in those incidents mr robinson as best i recall from the record mr robinson was right there with mr stuckey so those incidents where the jury heard evidence about mr stuffy involved mr robinson as well so i don't think that this that on this record that there are aggravating circumstances such that a curative instruction could not could not be effective here i think the curative instructions were more than sufficient here i'll also note that the maybe i'm wrong but it appeared to me that when the objection was made to the opening statement it appeared to me that the assistant united states attorney was not necessarily aware that it was wrong to do  this or certainly didn't act like it was wrong and and then the curative was given i guess the question is what did the united states do during the remainder of the trial to make sure that the error that had occurred there would not be prejudicial and would not and would be deemphasized yes your honor i believe the government did carefully work to make sure that there was not any mention by any of the other witnesses as to seche guilty plea that that was not something that came up again it was obviously not mentioned in closing argument and i think that the evidence related to mr stuckey was was women to his involvement was limited so i don't know that was and was not the same as robinson so i don't know that i can say that was necessarily in reaction to making sure but the government did ensure that there was no further mention of of duckies guilty plea i'm looking at what the district court instructed the jury during the opening statement the district court instructed the jury to quote disregard any statement about what stuckey may have done with regard to charges that may relate to him that would not be evidence that would be able to be considered regarding this defendant this defendant is on trial and he has you must consider the evidence as relates to this defendant separately and distinctly as it relates to him and the fact that any other person may have a other time entered a plea of guilty to whatever charges they may have entered a plea to may not be used to infer in any way that this defendant is guilty of the charges against him in this indictment that's a totally separate matter and should not be considered at all thank you instruction i do think was adequate when the issue was raised again the next morning the trial judge said that he would give another curative instruction and i think certainly between the two curative instructions as well as the initial instruction from the trial judge that statement of counsel are not to be are not evidence and should not be considered as evidence that those are sufficient for the jury to follow that instruction again i think we see  a mixed and mixed verdict form that indicates that this jury was able to follow the instructions including a mixed verdict form with respect to the conspiracy count against mr robinson so i think that i think that those are the curative instructions were were sufficient and were followed i would also point out that the mention in opening did not did not say what mr stuckey had pled to it simply said   case and people in but many other courts in the circuit have relied on fleetwood from the th circuit from nine hundred and seventy six and they are the defendant was acquitted on one count and convicted of three other counts it wasn't a conspiracy case but evidence similar bribes came in regarding the testifying witnesses the witnesses who actually came to court and testified were questioned about their previous plea and the defense could open the door to some of this evidence in the court still reverse the court still found that there was a error in that case that even though there had been what the government might call a mixed verdict form the court still found that the defendant had been prejudiced by that evidence and it could reverse and i would ask the court to do that in this case because i think there is evidence that mr robinson was prejudiced and i just i hope the panel has had a chance to look at the indictment or that it will have a chance to look at the indictment because the allegations against mr sethi are extensive in the indictment in that  attorneys repeatedly said this is just flat out reversible error your honor this is reversible error and then the court said ok well i'll take that up later i'll instruct him and i'll take it up later and later one of his other defense attorney said your honor done a quick search and it looks like there are cases where i'm cured of instructions can heal this so then the parties go home when they come back the next day the court has done additional research and says ok i think i need to give a further curative instruction and defense counsel says i know apply harmless error review to the well your honor i think that if not harmless beyond a reasonable doubt certainly there's a constitutional issue if it denied him the right to a fair trial and the court would have to comments and evidence are you able to convince me that there is not overwhelming evidence of mr robinson's guilt in this record in your honor well i have a couple of things that they and i hate to quote the court back to itself but i know you are aware of your decision from johnson in two thousand and fifteen where you said and the existence of a curative instruction in the strength of the government's case do you not render the error harmless when aggravated circumstances exist and again based on that  fact from nine hundred and sixty nine which is still good law aggravated circumstances exist when the information about the co defendants plea necessarily implicates the defendant who's on trial and that's what we have here and so i don't think stuck he also known history drake who was also with him on the trip but in one instance he was much more than just a shack around dominick told you that in a hotel room in chicago after she tried to escape and came back to the room for her belongings and who was in that room the defendant and freak and what did the defendant they did break drake get her and what did freak do it tackled her break was not just a chaperone break was a coconspirator he was around he knew the actions together with this defendant what caused dominic to robinson and then we heard testimony in court from victim l w and victim at the a about instances of violence and where mr stuckey in this or robinson work together and mr robin allegedly instructed mr stuckey now both of those victims notably are the victims that we alleged there were questionable issues with at trial one of them was very annoyed from the realities of the trial at certain points and the defense asked for her to be declared top in it and the other victim later recanted her statements in a letter to the defense and was the subject of that post three day post trial hearing about whether she provided false testimony in court so we couldn't cross examine this rd freak about his plea and then the two witnesses who provided information about him being the enforcer we were really unable to be sure that their testimony was credible in this case