honor this case involves a road initially started as a road stop on the interstate with a fellow by the name of repond who is a mule carrying drugs from one location to the central arkansas delivery to persons in little rock the central part of little rock and so during the course of this cooperation for the control box controlled delivery there were many telephone calls that there were intercepted by law enforcement there were calls to people that we don't we're not exactly sure who they were in other states or even maybe in other countries and there were calls which led to a person who is later he got out of my client's car and got into the other vehicle the two vehicles then drove to senor tequila and a short time later both vehicles drove to to get there when my fine arrived his family was in the front yard his wife you know had just come from the grocery store it's a tiny little house in a poor neighborhood and a tiny tiny house the place come in you know groceries and knocked around everybody has to lie on the floor my clients and nowhere near where the the vehicle was where the drugs were the police would run through the house you know to do a safety sweep and  and you know and then eventually ask my client your client if they could search the house you know after they've already run through you know run through the house so i am respectfully advocating that that the government needed a search warrant or already or there needed to be consent that the consent wasn't wasn't actually or granted in this case at the hearing on the motion to suppress or this was done by  another attorney who was retained at the time on appointed i'm just going by the record in that that the and that the witnesses for the government testified at both at the suppression hearing and at the trial that they could have easily obtained a search warrant but they didn't which you know makes the the burden of proof or consent even more important so what was wrong with the consent well and i'm what what happened factually was was that that the police were were ransacking were running through the house to say you know if there's any anything you know harmful in the house you know firearms or other persons whatever so of the police then you know engage mark line in a conversation and he he he would basically it's a little it's a little confusing on the record but basically he's they ask him what can we search your house and he says you're already searching my house and and then they go well we want to search your house or you're already searching my house and so the house and the testimony is a little unclear because some of the officer said they weren't sure if it's the senate already been signed file they were searching or whatever but that was i was a little bit unclear about that but it's unclear as to whether they were actually starting search before what they took my client inside the house and he signed the consent now judge miller well let me ask you is there any evidence that they went beyond a protective sweep in other words you know there's not opening a drawer there's not a fear that there's a person in a drawer is there any evidence that they were doing a search that might be considered something beyond a protective sweep prior to the consent your honor i don't do not believe there's any evidence of that that i can speak to but the court said that he believed mr maule or not he believed mr mahbubnagar when mr manalo said the police were already searching his house and his mind hey we're already searching the house and and under these facts where we have an undereducated man and make the who's who was born in mexico they made their record indicates that they had been threatened with need to be deported that that he did not he was never advised that he could refuse can sample he was later advised of his miranda rights after he executed the consent and he had no criminal history and so and you're the basis of my argument is that is that if the court would when the court makes the finding that he believes mr malvo nado then i am respectfully arguing that he could not h found that the are that the officers reasonably believed that there was a valid consent that's the basis of m the consent he believed that they were already searching the house but couldn't he have said no he was never advised that he couldn't say now that the law says he doesn't need to he could have said no but but basically what margi meant is that he acquiesced he just he he sat there with with with no indication that he was consenting or denying that except that he signed a for of that's margaret your arm now as far as the substantial evidence this is what the testimony actually proves that my client did know my client actually walgreens he followed that employee to senior tequila and he went home that that that's that's the testimony but there was lots of evidence of that there was a drug transaction or a drug conspiracy or something going on there w nothing illegal about him possessing a firearm and there's no he's not a convicted felon and there's nothing illegal about him having forty five thousand dollars in his home he had scales he had he had there were there were scales which the police could not seem to know whether they worked or not entire tools entire tools in the back and of course he's in the construction trade and he had and he had he had a lot of you know there were several other tires in the back and he had a trailer  you when you think in terms of there being a million dollars worth of methamphetamine in the car forty five thousand dollars isn't very much are they trying to say that he's going to give forty five thousand dollars for all this methamphetamine of course not and they now the phone calls that were made in this case did not involve my client at all and repond who was the courier i mean the the the the mule that brought the drugs in he testified when i ask never he had no knowledge of my client's existence and so there's there's not enough evidence that my client you know joined in the conspiracy knew the nature of it and helped facilitate it now my last point i'd like to make and i do appreciate the government because i never would have known but there was an alternate back there deliberating with the jury how did your body miss that i mean just think of all the people involved in this case i'm no trial expert judge and and so you know odd the judge had had given me that the jurors telephone numbers for another purpose that i could he said it was fine for me to call them to see how i did in the trial so i had their number so i started calling and i and that's what i put in my motion for a new trial that they allowed this juror to deliberate but they thought they knew better than the letter vote now they knew she was supposed to be back there i guess but they let her deliberate and then the government says that you that is not i that is not correct and i would respectfully argue that that looking at a law no was it there was one alternate juror yes sir and when because as you say i think the normal procedure is prior to sending the jury back you dismissed the alternate you're right that didn't happen obviously there was no objection at that point that's correct so you just mentioned a line a where you conceding that plain error applies here not well what i am what i am arguing about a law no is that is that by the fact that the alternate this is the first time i've ever seen this in twenty three years of an extra juror going back and deliberating you know all kinds of stay cases and you federal cases so i'm going to know it's not really fair of you but would you start with the jury honor because that after this is this is a wild case i agree and to be honest i don't know how we all missed it i was we were all sitting there and it wasn't until that we why she was still there is that when she came back into the courtroom to deliver the verdict this was after yes after the verdict was deliberating leaving we were wondering why she still there says that the first time you saw it yes well so so when you say that you don't think that depends council objected are you saying nobody objected at the time she went back and so therefore to play an error or are you saying it's seems like you objected it's really easy found out what your position on the prison that is it is plainer nobody objected when she went back to deliberate and nobody objected when the verdict was rendered you did the next day right the next day yes  morning the next afternoon percy yes after we were discussing what do you do when that happens because it never happened anyone in my office three on it but yes i believe it's plainer and the government see that it was error and it was plain but that the defense hasn't shown any prejudice or hasn't he has the burden to show that he was prejudiced by the alternate deliberating with the jury and hasn't done that and ha is enough your honor i would point to the case of united states versus pill which was decided by the eighth circuit after i want to know where we have a situation a little more similar to the one here where a alternate was allowed to inadvertently deliberate for two and a half hours and that the court found that they cannot presume prejudice that the defendant did make an affirmative showing that he was prejudiced by the district court's error that so that i can hear all they did nothing the defend nt did nothing presented nothing right from what i can tell from the opinion due to your graciousness here we have a set of facts you agree with the facts that are apparently found by the district court there are certain in the motion you kind of agree with them because you say is prejudice in fact that you set there and if they chill it by body language or i think it or anything else in my reading of them want to know that you have to show that they influence the other jurors or in some way till the deliberations by their body language or gestures or something of the like and i'm with them at that there's there's no evidence in the record of that here like the court in a lot of noted that when before all twelve before the jurors go back into the jury room when the alternate is there the alternate is indistinguishable from the other twelve they've been issued the same instructions and they've been present to hear all of the evidence and defendant got to be an open book and examined books as a supreme door a closed book that acts like if they open the book that's back there and there are a lot of cases on opening books in jury room maps  i don't know that this juror wasn't i think that the juror participated in the deliberation that that's not contested i don't know what her effect of her dissipation was on the other twelve that voted and i don't think the defense certain if the defense requested a hearing but there was not a hearing and so we did not have the opportunity to ask the jurors under oath what her effect on the deliberations was so we don't have that in this record i bet you've seen some of these other circuit cases some the other circuits are you know pretty tough on us if the alternate participates in any way through words or gestures this is also they don't this is the eleventh circuit prejudices manifest says the eleventh circuit why should we follow that line of cases and there are others i think that the course you follow the one case that i could find from the to turn back to the if there are any other questions on that the alternate juror point to turn back to the because the consent to search issue and that the government needed a search warrant it's our position that the government could have gotten a search warrant and did have probable cause that it was necessary because the defendant consented to the search of the home the evidence that the moat the suppression hearing was that when officers in the car with already searching i think the testimony was that and he was thinking they're already searching so i'm going to tell me as well son missed out of who testified to his thoughts mr maldonado testified at the suppression  reasonably reasonably believe that the content was voluntary in based on what they knew and what was going on a believe that that standard is met also and i understand counsel did say that he's not challenging the protective suite but there's the testimony the suppression hearing was that when they got there there were a lot of people present and people coming out of the house they only went in to secure the residence and came back out no evidence was seen in plain view or found during that protective sleep and all the evidence that was recovered was found after the content was obtained and they went back to search more thoroughly s with intent to distribute methamphetamine before the evidence was that there was a traffic stop with mr upin and they found a large amount of methamphetamine in a tire he agreed to cooperate made several recorded calls with the person that he was delivering this for in california and to the person he was going to deliver it to in little rock officers didn't know where it's going or who it was going to at the time arriving at his own house behind the car with the methamphetamine after he's arrested in the house the searched they find over forty five thousand dollars in cash a firearm digital scales that have methamphetamine residue on them and they also found tires entire tools in the backyard which are consistent with how they're going to unload the methamphetamine that's in the tire the mr payne with delivery based on all of that evidence with this highly deferential standards our position that a reasonable reasonable juror could find and they did find that there was an agreement to distribute suppress and to find that although there was plain error with the alternate jury deliberating that the defense has not shown prejudice sufficient to overturn that verdict thank there was no indication that the juror delivery and that the jury was there for two and a half hours or something like that during during deliberation right but there is no indication there's no evidence that the jury deliberated designed just for  notice that when the thirteenth came back to deliver the judge i was joining a trial i don't have i mean i try to be aware of everything but but that was just something that you know i have a client i'm trying you know trying to do with and i just never deliberate and the fact that the juror did deliberate is prejudiced and that's the government would know whether that juror sat silent or you know participated in i think they can concede something they couldn't possibly kno well they they they're they're their answer more or less dead but but i know as soon as i spoke with the jurors i call them this gardener and told her i discussed it with her did you ask for a hearing where you might have been able to establish how she you know the extent and any influence she might have had your honor i did not ask her here and i was not i have wasn't i wasn't able to have the time to do that when you can i'll just motion you could i should have asked for a hearing immediately i did not your honor i'm five  guess i just the same you that i would call the courtroom deputy or the of the law clerk and ask for hearing i should have done that because i only talked to two or three of the jurors before i realized what was that what had actually happened i used up some of your f the court would look at the evidence of the the box where the money was you know it was found in a closet and if if if so and so when that i took a picture of the box in the closet and it's literally  closet there's nothing in the closet except for this box and so during the protect us we obviously they would have seen that and i don't know if that's relevant to anything but i just want to make sure that small point gets addressed again we appreciate well thank you so much th thank you for your writing cases submitted will issue an opinion