good morning the fisa court the opportunity to enquire during void year when jury juror bias is suggested is a guarantee of the defendant's right to an impartial juror none of us knows whether juror so it really isn't about juror one five four seven it's about the reasons why you're all five one four might have failed to take her seat and how that might have affected her te detail that a court left out which is that she failed to follow the judge's instructions to report to the jury room but she did come back on monday she was called i don't know why she responded all morning long to her juror number but failed to respond in the moment when it counted i don't know why the other juror responded to his juror number all morning long and then responded to someone else's in the moment juror one five four seven agreed to take over five one forced place then we you know we don't know why she might have wanted to avoid jury duty but having tried and failed and now being c then there's i mean there are cases discussing that kind of prejudice because the juror would or might naturally think that they need to curry favor with the government in order not to be prosecuted prevail we don't need to speculate we just need to see that he had a right to an impartial and different jury and this the circumstances were so odd that they simply required take her seat and he takes her seat so the two of them would have to be making the same mistake at the same time which seems highly unlikely and all we have to show is right so assuming that you're right that they would have had the right to question than how do we translate that to the standard of review here it was plain he was in error that was clear and obvious that when variance between the grand jury's indictment and the proof that trial the testimony could not have been more clear that the check in question was the valid check of the company and ask it so i'm not understanding why actually both sides are describing this is the variance question rather than just the sufficiency of the evidence question i mean isn't it correct that if we assume you're right that there was insufficient evidence to establish the charge of counterfeiting there would be prejudice and a variance right there be a prejudicial very clear that if you were right about the insufficiency of the evidence that there would be a variance right ye is not a trick i'm just trying to figure out just the way you raise the sufficiency i did and i think personally i think it's better for you to argue this is as a lack of sufficiency i don't understand why both sides have all these pages on variance one this is not the kind of case where that makes any difference the question is if there's sufficient evidence then you have no prejudice and so many various arguments have nothing and if you have insufficient evidence you do have a prejudice and so your variance argument a enough so is there any reason why i shouldn't think of this just as the question of whether there's sufficient  at least leaning toward agreeing with me  think it was the actual check and the sec and the same with respect to the i'm assuming for the moment forged check that was also just copy because the version we have has obviously both has a front and a back on the same piece of paper so i'm guessing this is also they only put on a copy but i don't know i think that it was a copy yes i think they were all so what what what  testified that the company had issued a check to its insurance carrier and that that check had been for altered fraudulently to change that pays name but how would he had put stop payment on that check and his insurance company had not received the check that young company had had written to them and he had to issue a new check to them so called forgery was p e singing was changed right yes i mean somebody could have made a copy of the check with the name blocked out and put in the new k right and that would have been counterfeit correct yes if they recreated it well if you create something out of whole cloth and i suppose they do use some sort of copying method  you why why is this check different from those others there's an this check is different because all of the other checks were created from whole cloth they were not stolen from the banks or the checks purporting to be from their bank coming in and none of those were actual cashiers checks that they had created they were created from whole cloth by whoever was doing  that and i think that that's true for all of the other companies and banks as well what is your understanding as to how this one was created that is to say have the change was made in the name i don't our insurance company was that the original physical kick in any of it whether it be a new one or whether it's counterfeit or whether it's forged was the exhibit the actual original physical you know i don't really know the answer to that question i wasn't the trial so we really know from the evidence he has that a check with that number would be if you do a different pay he never run then we have information suggesting misconduct on the part of the jurors only speculation offered for the first time here on appeal it was never raised below zero it's not quite right that there is a motion there was a motion after the judgment right it is there was no there was the only thing that was suggested at the end of the end of the motion was a perfunctory parent repellant request the court to grant this motion population interview the juror regarding possible misconduct without any further it there is no information suggesting collusion in fact there's no information suggesting that either of the two various ever spoke they were sitting on different sides of the court room as appellant briefs so aptly notes so they're not even yes i have here is that what the physical john that has the void on right now i see that but i have as a copy obviously arise the original actual physical check produce you know my understanding is that the file exhibit were both photocopies of the original no evidence showing that it is counted and it says i'm reading because the paper information is different from the original check and also the fonts and type set is different from all other aspects of the check from the original check but so on that could easily mean defined the word counterfeit to the witness that no your honor and the rule is counterfeit must be entirely different right as to be manufactured in its entirety that is the step that is the statutory line so we don't have any idea whether the the witness was aware of the statutory require no but we certainly were that counsel was aware of that and in closing argument at page page seventy of closing argument counsel acknowledged twice that if this was a counterfeit check so you're taking this as an admission by that in other words you're taking this as a mission by defendant that's how i think it is and it certainly is sick suggests that there was no surprise in fact in his opening statement he said the same thing  what seventeen and eighteen ok so now mr marker had nothing to do with creating these counterfeit checks or distributing these counterfeit checks at the bottom especially me on forty understood that there was sufficient evidence to support the counterfeiter there was never to be action to the prosecutor's question to the witness how do you know that this is a counterfeit chat and no objection to the answer that he gave and so when the light was very well the government that is sufficient as how if i look i'm looking at these two checks and i don't see how i could tell that he beyond a reasonable doubt so a reasonable juror would have to find this beyond a reasonable doubt to sports physicians right i don't see how reasonable thirty nine of the transcript of the original check exhibit number sixty four the an alter checked was also presented to the bank separately so the jury had before it that each of these checks were you related to the bank there's unfortunately i read that section as meaning the original shack meaning they altered check that's a problem when he's talking about that that on that page i appreciated as ambiguous which doesn't help you any well to you then it's ambiguous in the light most favorable to the government has to be ambiguous in the light that would allow the jury to find beyond a reasonable doubt not just and that it's not enough that the jury could speculate right is not enough for the jury to speculate correct that's our classic statement of the law well there's no there's no question of that but i don't think it calls on speculation if the witnesses said the original check which i think reasonably understood by the jury  altered presented for payment to the bank the painting had been altered rogering lee was detected by the bank and was brought to the attention of our corporate offices that sounds like to me like what he's saying is that the forest jack or our fit or all whatever you want to say was presented to the bank is it is i think is it the government's position that this check which is government exhibit sixty four at page thirty two that fact check was presented to records or anything like that i'm not sure of these checks came from the bank they must have because it also includes the bear with me on the i'm time i check number sixty four i was no doubt about it  is because it's got the markings on it rock so i'm not sure if that was thirty two days in from the young the company that wrote the check or from the bank i don't know void on the check on thirty two i don't know the answer i'm not sure that there was testimony with respect to that but i believe that the witness testified i read the witness's testimony to refer to government sixty four as the original check and of course here's a lay witness talking about and by the way the corded asked counsel as as the public copy in testimony that was found that they eighty four of the december sixth transcript a no other witness m certainly not clear but in the modern times when one is creating a check and one is them not necessarily altering the original check but capture an image on a copier of it in a regional check and then manipulating that image to create a counterfeit check and i think under those circumstances the jury could reasonably infer that that's exactly how this counterfeit check was created in the witness was directly asked how do you know that this check is counterfeit who'd be allowed either be a lot easier so i don't know government exhibit sixty four there is a dark insufficient for a reasonable juror to conclude beyond a reasonable doubt that there was  know there's no question that but that cuts both ways no question with respect to that  district court had jurisdiction and yet there's no doubt that we have jurisdiction to rule on the motion that they filed with us right i think that's right because when the district  good cause element of what the district court did regardless of whether there's jurisdiction that's correct and that's what we're reviewing of use of discretion with respect to the course of finding of no of no good cause and with respect to that i don't i the record shows there was no good cause they have the i read to you they are the only reference in the motion with respect to the possibility of misconduct without further elaboration but i don't believe that that constitutes the cause in a court clearly ok i think the court well he left with five extra seconds which like if you add another whole minute about that could you could you address as some of the it wasn't on this ground so there was a specific objection about this at but right before the jury here here here's to be conceding that i think it's fair to say that he didn't focus in on this if he had he would have done something specific about it but i don't think that using the terms of the indictment is a concession on his part the word forgery never came up at the trial it's not in the indictment it wasn't me instructions testimony that was that governments had a sixty four was it we original check and was presented to the back i don't think that they stopped payment on it and then they reissued a check and he testifies that this is a replacement check that we were required to issue because the first check that i just issued on september twenty eighth had been altered fraudulently altered and brought to our attention by the bank we were required to put a stop payment on the original check and reissue the replacement so i don't think that there was any reason for them to put a stop payment in reissue if it had not been a fraudulent lee altered check