seventeen thirty eighty seven zero states of america versus telamon harris arguments not to exceed fifteen minutes per side mr questionnaire for the appellant thank you martin your honour's morning will cushion her on behalf of and harris and if it pleases the court the issue i would like to address first is the obstruction of justice conviction which was count five there the evidence submitted by the government was a single witness mr duran and whose uncorroborated testimony was that mr harris told him to lie to the f in cross examination mr here is his counsel counsel i'm going to i'm going to cut to the chase on this one if i may and just ask you you raise two points in your brief you raise refreshing the recollection and prior inconsistent statement correct in my mind at least clearly the district court erred in both ground so ok you can refresh your recollection with anything and you can  impeach with a prior inconsistent statement i don't know i think she mistakenly thought that it had to be sworn the government response in their brief that they take a new tact which is this wasn't authenticated because it was on the cell phone so i guess i have two questions i'm sorry to do this to you one is it just so i understand and i'm sorry if i missed this the statement on the cell phone is the investigator and the witness talking correct yes so what it is is not actually a phone call but a recording of their conversation correct ok and this second is can you address the government's authentication i know in your reply you say yes your honor as likely what was on the tape yes he described exactly what was on the tape quoting the language i mean that was on the tape was put on the record yes but somebody  was on the record it was in the transcript so i'm looking at page you have the record with the i'm looking at page nine thirty five and he said isn't it a fact mr dreier asked and then he quotes was talman basically saying if anybody comes around just tell the truth and leave it at that and you said it was more in that nature you know didn't you say that me said i don't remember and then mr keller says i have a tape recording of this i guess to follow up on judge sollars question you're saying basically that that sufficient where he asked the question and then says look i have a tape recording of this he doesn't have to say exactly what's on the tape recording yeah i think it satisfies the requirements for a proffer ok yes and i think i think going to know what's on there you know but it record i think keep he told he told her he told her from the question and then your description of what it was he wanted to do right after he got the answer to the question from the witness where he said didn't you say to my investigator x he approaches the judge and says i have a recording where he says x which i'd like to use now and i think that satisfies the requirements for proffer under the three eight two and nobody suggested anything about an obligation to authenticate and if i may can you imagine what it would do to to to trials if after a judge had excluded evidence you then had some procedure where you had to continue to go through and lay foundations for evidence it's not the law and it was and you can see why it would be wildly on we had i mean what irritated trial judge having both of us having been there i think it's unfair to ask defense attorneys to do that let me turn to the harmless error because the final point they make is that this is harmless and if i missed one will correct me but good but go ahead and respond to that well this was the sole evidence of obstruction of justice it was the testimony of mr there was no corroboration for his testimony there was no document corroborating corroborating his testimony so he said paris told him to lie in court outside of court he said there was told him to tell the truth  i don't think the government can meet its burden of showing that it was harmless beyond a reasonable doubt and the cumulative evidence doesn't apply because this is an individual count of obstruction of justice and so you just look at the evidence relating to the count because if you notice in their brief they say the evidence i think it's the evidence from the entire trial was i don't i think your honor is correct and that's how they put it ok do you want to move on to the ram or hearing yes i would you're ok thank you and there after the verdict the defense came forward with credible out with the allegations of juror miss conduct filed a motion what's the standard because i read rammer what is what should be the standard by which a trial porque reviews the evidence to make a determination as to a hearing not as to discovery and i want to know if you think they should be different yeah first i think and i relied upon the this court's language in corrado i think a credible allegation is is sufficient i think that once there's been a credible allegation the court has to do something the court has discretion about what to do to investigate the allegation and for example here a logical first step might have been to get the transcript prepared from the board ear which would have let everybody know because no one knew that ask for that no no the request that was made by  harris's counsel was we'd like a hearing so the court can conduct an investigation they over who asked for discovery no it was the or in the alternative if the court isn't going to grant a hearing give us permission to investigate and the court just denied it entirely and what should the standard be to give you permission to investigate should it be lower than the credible evidence theory  yes it should be ok and then let me give you the eleventh circuit's theory or standard in bar and asking why this how you why this shouldn't be the standard and how you could satisfy it the duty to investigate arises only when the party alleging misconduct makes an adequate showing of extrinsic evidence extrinsic influence not evidence extrinsic influence to overcome the presumption of jury impartiality whereas here what you have and i want you to walk us through it because i'm not sure i fully grasp it but what you have is a linked in contact that by my reading could have occurred after the trial was over i don't think that is right and i would like to walk you through why that is not right ok and the key document there is exhibit c to the rammer motion which is document two thirty three two places where it tells you what time period it's reporting the viewers can i can i go back ok so i'm looking at i guess that's exhibit c i'm looking at exhibit it's this linked in document says tell me and see what your network has been up to and it says you have three notifications ok and this is september sixth right two profile views in one new update now you should assume i know very little about link but then it says three linked in members viewed your profile in this in private mode and then it says christian galina who's the person in question it a week ago right or are you looking at the linked in screen shot now or now i'm looking at the screen shot yeah so explain this to me because if it says three people view during this time period then why would christian leno be during the trial time period versus why couldn't she be in the week after well he's getting notified that there are people public in private who have looked  his linked in page and by the way this occurs this occurred on the day of the verdict the trial but  that he was being notified by linked in that someone he didn't know from youngstown there was no publicity for this trial had gone and checked his linked in the page and he then went and looked at the linked in screen shot which said this person looked at your linked in page during the trial and he went to the fake her facebook page and saw pictures of her and one ok but seeing you is from september twelfth is it not yes i think that's right lower in the lower left that's the date that appears there and then what it has is the ability to see who are the people who looked at your linked in during particular time periods there's a filter but that's but to judge white's point this says a week ago does that mean the last week or does it mean exactly a week ago and if it's exactly a week ago it's the fifth which i guess we're argument would be the verdict came back on the sixth right or the seventh was still during the trial even if it was a week prior to the twelfth but does a week ago mean exactly a week ago or does it mean in the previous week i think it means during the previous week it was the thing that is being so why couldn't it be on the eighth that because the  i mean there's two places on c words indicating the time period that she looked at it one is the what's the word i'm looking for the filter which is on the upper left and then if you look on the upper right is also highlighted area where it's showing you the period of time that it's showing when someone looked you're saying viewers week of august twenty eighth to september third tells you the timeframe but that week would be more than a week ago from the twel yeah i think the way i would think of it is the first we could go is from the week that includes the twelfth they were organized by weeks and in that way the two pieces of data correspond ok your that there is no local rule that would have barred them from contacting her the motion that was filed with the court recited we want we would this is a sensitive area juror misconduct we would like this to be occurring under the court's control and it would be our preference and i can understand why a lawyer would feel that way you don't want to be accused of harassing and jurors or anything and i think they did the right thing to ask in the first instance for it to be under the court's control and say but if the court is prepared to do that please let us do it and once i've made that request to a district court judge i would not feel comfortable doing to confirm that the the only evidence that you presented is that the girlfriend looked him up on linked in and that there's no negative information i'm going  but from that you inferred that she went further and did more research and found negative information actually i would put it differently your honor would view his she did internet research on mr harris you do internet research by doing a google search but in fact during the trial when another issue came up with regard to assure the court did a google search in order to do internet research that is how one does internet research and if one does a google search yes one's a linked in page will come up but also in this case print articles with prejudicial information concerning the defendant which the court had barred from trial come up right at the very top the only time the people do a linked in search is if they're looking for a job or they're trying to determine something about a colleague if you're doing research regarding a person in today's era you do a google search so that's o please the court my name is dan regular present the government on this appeal for the rubber hearing in order to get a hearing mr harris would have had to prevent prevent present a colorable claim of extraneous influence o e presented evidence that the girlfriend of one of the jurors did a google search or a search and found this and it checked the linked in page obviously human nature is such that if you saw some of the other things you might look at them why doesn't a district court date him at at a bare minimum have an obligation to protect the sanctity of the verdict and do it at least allow the defense counsel the opportunity to reach out and interview this up person because they really didn't show enough your honor it didn't show internet research what else could they have done to they're not asking for a full blown ram or hearing they're asking for a hearing or in the off alternative the opportunity to investigate i think they would have needed to show off some clips of unauthorized contact between juror number twelve and galina which they didn't show they lived together they're allowed to live together you know the girl but they live together and she's searching and researching the defendant arguably after a trial maybe but they've made a good case that this happened during trial i mean look the district court could clear this up in ten minutes they could let them investigate or they could have called juror twelve again and simply ask but they didn't do either and i mean doesn't this it looks bad i mean i'm looking at it and thinking geez it looks bad right and this is a criminal someone's liberty's at stake if they had shown more just didn't really show enough they didn't show that turned over twelve looked at them linked in page how are they going to do that without an opportunity to investigate they've gone to the court and said this is what we have judge can we have permission to reach out and contact can we have permission to do something tell me how they do it without this is what they've got they don't have anything well they could have gone and talk to you know once they at it i agree that sometimes it's better to ask for permission than forgiveness is a former district judge it's much better our forgive gives them permission it is a former district judge it's much better to ask for permission they went and they asked the district judge for permission the district judge said no now they can't do it to me if defense counsel were running around and doing these things i know my colleagues in the eastern district of come to kentucky would go crazy but all there is here really is speculation nothing else you know it's speculation when you come to the court and say we don't have anything but em but here's what we think here they brought something to the court all they showed was a glean a look at the linked in page there's no there's no way of explaining why she would have that right the judge kind of a judge person somewhat addressed that in the just you know in this age it's not unlikely that she looked you know it's youngstown federal court there's only one federal judge it would be that hard to look on their website and see which trials and then in progress and look up to and look at it just as likely if not more likely that she asked him a question an sad oh i'm sitting on a jury trial the guy's names talman harris and then her intuition kicked in and she went and googled it well judge pearson found there was that was not a nexus you see made the opposite conclusion that it was just as likely we more likely that she just did this independently what should the standard be and what should the standard for discovery be when the defense comes forward with credible or somewhat credible evidence that someone some showing that there is a communication between and here would have to be there's to be some indication that there is a communication between glendale and juror number twelve and there just wasn't all you had was journal twelve looking at linked in page sometime within a week of september twelfth you know the exhibits really don't show anything else exhibit a doesn't really show anything to do with leno exhibit b just shows when harris looked at looked at his linked in page and exhibit c shows that going to look at it within one week of september twelfth that's the way i you know i read that exhibit c the other exhibits are just their facebook pages and show their relationship but there's still no indication that leno ever talked to and someone else and i think that's what you need to show and here we just came in with this linked in in the end just because i looked at linked in the fact that if you did a google search you might come up with mr here says s c c violations which is really what the concern is there's no evidence of that that's all speculation in and of itself you could look to linked in without going on google and going down three or four entries to see an i c c case against mr harrison you could of you also could have looked at everything and you could've told your boyfriend about it and a simple inquiry would have figured that out but there's no evidence of any of that and or no or that how do they get i don't understand how they get that evidence without permission to conduct discovery once they've asked for permission which of course the united states would prefer the defense counsel come to the court now ask for permission before contacting jurors or their paramour's to use judge sollars language correct ok what about this statement do you have any other questions on the judge why do you have any more questions on the rammer hearing you know ok what about this statement you agree  that it was error for the district court not to allow them to at least refreshes recollection and or under six thirteen federal rule of evidence six thirteen b they clearly i mean the district court misunderstood the rules of evidence here court was looking at what they're trying to do is use the private investigator statement the now his remains mine it's his response it's the private investigator statement was was talman it's a question w talman basically saying if anybody comes around just tell the truth and leave it at that it's a question not even hearsay and the answer is it was more in that nature you know and he says i don't remember saying that to him and that's this whole obstruction of justice i mean i agree with the defense the whole thing comes down to this guy's testimony right to do it's duran duran duran's to durant's testimony there's no other evidence of obstruction it's duran's testimony it's the watch we are going to sell the watches when in reality they were taking these kickbacks right and this statement was direct impeachment of that he told me why isn't that error and why how is it harmless it's there's a little bit more than just during and seeing seeing it's more of that nature you know there was there's a there's a background of this to the factual background that they gave the same story to  we'll set that aside and let the rest of it appear that what you're saying i think would only affect that count documents is that what you had if we did your honor i don't have the page a day for that but i believe we did ok and that said they were both authentic and business records kept in the ordinary course ok they were clearing houses that  can you answer judge sollars question that he just asked do you agree that if we i agree with you on the obstruction count it just affects the obstruction count that is what we have asked yes ok that's what three about us yes  ok and with regard to the remember i just have a couple of points i wanted to pick out pick up on one i really think is a practical matter the defense counsel did everything he could to be by submitting to the court all publicly available information because the no investigation was done the government argued to the court there's not even clear evidence that they really know each other and the court said well you know made a judge speculated really about the probabilities of what might have happened on the assumption that maybe they knew each other it was only had there been some investigation done and it would have led in the first place to the transcript of the voir dire where the juror said that's my live in girlfriend and then we would the whole analysis changes and i think some of your questions your honor picked up on that because you know when somebody is living with somebody during they are communicating every single day they are seeing them every single day during the trial they're seeing them every single day they're spending more time with them than they're spending in court then it takes on a very different quality than if it's just some acquaintance and that's the problem here which is if you do nothing no investigation whatsoever people are left just speculating and wondering over an issue which is a constitutional issue the right to a fair trial that's a serious and important one you can't do nothing ok thank you counsel thank you both for your very thoughtful arguments we appreciate your time in preparation the court might call the next case