morning everyone welcome to the ninth circuit we're delighted to be here with you we are just schroeder and i would expect to extend a special welcome to our colleagues such as ron who is sitting with us by designation from the district of hawaii is that still accurate whenever you're ready thank you your honor job ellis on behalf of the defendant percy love i'm intending to reserve three minutes for rebuttal mr love's first claim is that the district court violated his sixth amendment right to a public trial by including his mother and his sister from the courtroom after they had finished testifying during the trial after his mother had testified both in  the government's case in chief and the defense case he asked that his mother be allowed to remain in the courtroom to observe the trial the they asked the prosecutor for the position the prosecutor said they had no objection to the mother remaining in the trial except during the testimony of one witness because the dynamic between the mother and the witness would make it disruptive when that went to the judge the judge then said that that was not a sufficient justification to close the trial and he would deny the request because it's a public hearing but then he noted that under rule six six one five they have a right to exclude witnesses if the witnesses would still be called as a witness the prosecutor then took the hint their changed course and said well we might call the mother back as a witness later and then the  judge excluded the mother and then ultimately his sister as well so your position is what you'd like us to do i gather is to say that the prosecutor's statement was not truthful or it was not genuine and that the district court should have seen through the smoke screen and so as especially to accept the prosecutor's first representation that they didn't object to the mother remaining in the courtroom under those circumstances it was like to experience prosecutors in the courtroom mr hit and his co counsel and they knew about rule six six one five and they didn't make any objection to excluding the witness at the time so in those circumstances i don't think it's proper to wrong is that it didn't just when it made its initial ruling it should have just accepted the ruling and allowed his mother and then his sister remain in the courtroom for the remaining of the trial for the seven more witnesses  because that's what the prosecutor said it didn't have any objection it was no intention at that time to call the witnesses back and at that point it was proper to allow the witnesses to remain in the courtroom to observe the trial that is a public trial and it's a sixth amendment right  and there was an objection made the there was not a sufficient i said that there were there was no objection made right whether wasn't of jackson in terms of mr love for acting pro se asking that his mother and his sister remain in the courtroom there wasn't a sufficient justification to close the court room of a partial closing but i thought there was no objection made to the judges of the subsequent reliance on on the rule well after  after your right there was not a further objection or a continued objection but mr love by asking that is his mother and his sister remain in the court room was raising it as a i think that's certainly the best way to try to argue it from your client standpoint but i guess i just view it differently what happened was the judge shifted the basis for the ruling and there was at that point no objection to kind of the in the argument you're making now obviously that factually there wasn't a further objection but i think that the fact that the objection was made initially and the judge made the rowing that's when the error occurred that their character hurt by going further and i don't think it in those circumstances a further objection is warranted i do want it there's a number of juror to jury instruction issues and misconduct issue in closing argument but i do want to get to the sentencing issue because a i think it's one point five b was for a pattern of sexual engaging in a pattern of sexual misconduct in the past that statute or that guideline specifically says it only applies when the career offender guideline does not apply in this case there's no dispute that mr love qualify for the current fender guideline in the present report it says that it applied it just didn't have the effect of increasing the guideline because he was also an offense level i mean a criminal history category six and he was greater than an offense level of thirty seven which is what substantial punishment and it wasn't i don't believe it's the purpose of the guideline to add an additional five levels when you're already getting a sentence at or above the career fender guideline why  would i guess i'm in your reading is certainly one plausible way to look at it but why wouldn't the commission have instead wanted the to avoid kind of a sort of a double counting problem we don't want to hit you with you know an artificial sort of an artificial boost to your son's long criminal history category by way of their career offender provision and then also hit you with this extra five levels but you know if you're already had trouble history  offense level of twenty two and if you look at that structure in the context of talking about the career offender guideline it does give more credence to the service the viewpoint that it would it what it's intended to do is not allow someone the kind of skate enough issue there's probably occurred in other cases it's not not just mr mr love's case as well i would just think if your reading were correct the word that would have been used was qualifies as a supposed to apply is right if somebody has the status of you know being in the category of someone who can be doesn't use your friend or please don't give that person the five levels but the apply makes it sounds like that guideline i mean the clear front of provisions having some effect it's certainly would've been clearer if the use the word qualifies rather than applies but you know in this context if someone is a career offender with these kinds of offenses where the maximum of life the offense level is even even under my view is three hundred sixty months to life you know so we're looking at thirty years to life and it doesn't it seems like the terms of the structure of the guideline and the purpose behind a guideline the way the it it wasn't intended to and that's going to be essentially the vast majority of fifty nine fifteen ninety one cases is going to be three sixty to life if you're a career founder i don't know if it's reasonable to assume they actually intended to push it up to life in every single case where someone is a career fender i think it's more reasonable that if they they thought that someone was not a career offender they still wanted them to get a substantial sen e maybe in my two minutes before i reserve time for a bottle i might the third argument i would like to touch briefly and that's love's conviction on count two should be vacated because the district court made some jury immediate instruction and before the two thousand and eight amendment the statute said that it was a violation if you committed certain acts by force fraud or a correlation and then in two thousand and eight they added or in any combination of those three so it's by adding the amendment it was clear that congress was concerned that it did not apply any combination of those before hand and  refusing the instruction it's an error here and it would affect only count two because that occurred in two thousand and seven yet the offense occurred in two thousand and seven while the other counts all occurred it with the multiple counts that's possible that's right it might depend on whether or not you granted my argument on the five level enhancement you know it seems  it seems to me that with the overwhelming weight of the evidence show that your client committed actually all of those well so the government argued both forests are violent force as well as for all the lifestyle playing up the lifestyle and they argue that in closing and the the woman testified f w testified that but mr love denied a lot of the conduct a lot of the allegations he denied that the extreme force that some of the witnesses that testified a jury couldn't weighing all the  evidence it's not it should be a jury decision based on a proper instructions and i think that the error is not harmless because the it's not it's unclear which which terms or which  good morning your honour's pardon me my name is jason head i'm from the u s attorney's office in the eastern district of california may it please the court i'd like to briefly respond to some of the arguments made by mr ballasts starting with the sixth amendment issue and i think the court has a as your honour's questions pointed out first this wasn't a total closure of the sixth amendment this is what's known as a partial closure and when the interaction of rule six fifteen which is mandatory in nature comes into play i think the district court didn't have any choice mr love had requested the seaquest ration order the court had granted it and suddenly midstream mr lott was acting for an exception to the mandatory order that had been given i don't think the court could find a sixth amendment violation and to the extent a substantial interest is required under sherlock i think will six fifteen's compliance here was not abuse of discretion and supplies that substantial you know there seems to be a fairness issue here also i mean if you have a party request a  in order to exclude you know potential witnesses and the court will of course grant the order i think compelled to grant the order and then you go three quarters through the trial and then one party stands up and says but wait a minute i'd like this particular witness to be able to stay in here in the meantime maybe the other side would have wanted some witnesses to stay in two but they've lost that opportunity it seems like a fairness issue also i think that's a good point you honor and the other thing that was touched upon in mr dallas his argument was the question and i don't think it turns on the government's intent but i can explain we did have a good faith belief that mrs love the mother might have been recalled in a rebuttal or a retrial specifically because as we were going through the trial we were getting jail calls each night that revealed there was potentially some coordination between the defendant and his mother and that's in the record so it was equally plausible that when we got through with the defendant's case in chief we recovered additional recordings that we would potentially show through ms love's calling in rebuttal that you tailored your testimony in the defendant's case we have a recording that was very common in this case and there are a number of other areas in the record demonstrating the defendant's attempts to sort of tailor the testimony and i think that comes through in the did excuse me in the district court record of deciding why very thoughtfully why will six fifteen did not allow the mother to remain  the other two quick issues that i would touch on i can i can stop now how did how did the defendant sister become involved she was called during the government's case in chief because she had a lot of interaction with some of the victims she was there on the night that k a l the last victim was contacted by police mrs lovett provided testimony and said that she was present shortly before police arrived and during the case and she for the defense she claimed cayle looked fine there was nothing going on and that was completely inconsistent with what the officer who arrived that night in sacramento found there was also some testimony during her testimony in the government's case and she gave that in her position as a c p s type worker for the state of california she may have attempted to influence or threaten victim l c who had a child with the defendant the mother she will love had custody of the son percy jr the sister at least according to l c had suggested her insinuated that through her position in the state she may make sure elsie never sees her child again so you could call your the government i call this is the sister in its case and she does and she was recalled in the defendant's case and she ok and then and then that's the same argument about the prospect of perhaps calling her in your rebuttal case is what led to the expense it was very common not only for these two women the sister and the mother but there was a defense witness named simone young who was revealed in the further excerpts of record she admitted that getting daily updates from the was who was saying what we also had a witness from the defense named natalie trejo who admitted she had essentially gone out and scouted and hunted down various witnesses once james was provided to try and test them on their to accuracy and would they stand up on that state so we were this is a very serious concern and that the district court obviously took it very seriously and also commend on that point p s r paragraph forty three which talks about two efforts by the defendant to persuade two victims to commit perjury in our trial and the judge was aware of that that two weeks your honor and then i can briefly address i think on the sentencing and show that started jump around but i think this one is easily disposed of in that if you look at the text of career offender for b one point one instead of focusing on the qualification paragraph of a i would direct the court's attention to paragraph b which sort of gives us the rule that applies here and that is it says if the offense level for a career from the table in this subsection is greater than the offense level otherwise applicable right there i think it's internally consistent with four b one point five it says if you're over thirty seven go over to the other offense level that's what happened here the district court did make an error they sort of come together very nicely as if it was it was at least forty i think it alternately it was forty and that's greater than thirty seven and it would be sort of an absurd result to give a defendant a benefit for  however if the five level enhanced meant it was taken off then it would decrease the offense level by one level further than what i was asking for from the fans level forty two thirty nine ok thank you