as it is our contention that the trial for to use his discretion in the decision to convict mr milan was clearly erroneous standard that mr milan was convicted under is is somewhat  precise since the judge has never issued a written order pursuant to the conviction date of the eleventh or the tenth of november two thousand and five  my review of the record he did not make such a fine really found that the contact with the with the jurors in and of itself was disturbing and contemptuous as the government will to the standard that that they will use is that he misbehaved and i believe the government did quote the court on this it is in the record that the did the court did say that he found that mr milan had very close case at least speaking from my perspective when i look at this mr case and it seems the holders of patience that he knowingly and willingly targeted the jurors we see where the jurors and then he made his statements what is your response to that your honor first of all the smith case did say a juror and in this case the contact came before anyone was a jerk the panel had just  court became aware of the comments at about two fifty in the afternoon the jury was seated at four thirty in that little more than an hour's time at sidebar eight jurors were examined that supposedly heard mr milan the two that he had said is that the jury she had overheard someone say is that the jury she looked over and he said that as mr milan is alleged to have said that you get to make the law which i believe is the most damning statement and then you get to decide not only one tell you how to decide the other witness testified that he did not hear that first statement what he heard was you're the jury don't let anyone tell you how to vote or words to that effect so if whether or not that had a tendency to influence the judge i think extent that yes you did it influence the jury i'm sure i think you're right the first witness that is the one who the female juror said that she thought it was enough if she had disregarded him and she may have even been the one who said if let me preface my response by saying that i feel a little bit like the punter who's now thought upon the be the quarterback picked up this case for argument and i don't know how i might have argued the elements of for a one but it seems to me that the elements of four a one as described by the statute are misbehavior of a person near the presence of the court and asked to obstruct the administration of justice with the requisite intent which is not defined either in this case or in the government's brief but i think that comes very nearly the same as the clear and convincing test that brand of birth person on ca did that is that the destruction or the having reviewed the record and the law that i don't believe that there's any defense in any correlation in the cases as to what kind of intent had to be there i think you're talking about a clear and convincing act didn't say that the other women or didn't say he said that let's put it that way one side for yourself right that's the second one right now did that mean that he didn't quite hear everything and that was you get to decide the law for that regardless of intent the statement made had the tendency to influence the jury yes because in order for the statement to be misconduct it had to be material doesn't matter who he is as to the tendency to influence the jury couldn't the foundation for that was the misstatement material did it have a tendency to influence well that's true but all i'm pointing out is that the fact that the judge but chose to take the time to investigate it can't prove the obstruction if if the judge in this case does not have the power to address that type of misconduct he has the power but it doesn't necessarily have the power to call that a criminal act then because because you chose to investigate it either to the court to reject the government's invitation to go outside of the record of the case and instead concentrate directly on what this defendant knew and what the record shows about his conduct only statement in the record anywhere of what he believed about the tax laws is his own statement of on the eleventh hour as he has me on the tenth of november when he was convicted and he did say he sympathised with shift and the other defendants he said no more he never said that he believed that this believed in the federal tax laws and he never said he sympathized them because they were being prosecuted for tax laws that's the only record and i would say that smith should guide the court in in this way what we have here is a person who may have been a careless loud mouth expressing his own opinion in the vicinity of a juror in smith he said don't go with these communistic tax laws in this