courtroom there is a strong presumption in favor of public access to court proceedings there are only limited circumstances for sealing a court room the motion to seal did not discuss the relevant president the motion also did not identify the type of confidential or sensitive medical information that would require closing the court room the members of this court are familiar with the medical issues referenced in appellant pre sentence report which is part of the sealed materials during oral argument the medical issues may simply be referred to as such thank you heard here we respectfully argue that where there is evidence of mental illness and an absence of an oral colloquy a new trial is warranted what is the who require what is rule twenty three or higher rule twenty three requires that the properly estimated yes but the rule twenty three a waiver alone isn't sufficient to waive her right to injury trial in addition to that the defendant must be competent to waive his right to a jury trial and the waiver must be made knowingly intelligently and competently is  colloquy required in certain circles it is yes in this circuit your honor no there's no supervisory rule but it's certainly been encouraged for example in david and the reason for that i think is them that intelligence does not equal competence think that the person may not be competent what do the district court have in front of her at the time that would have been a red flag to her and that perhaps because he was not nothing in front of the judge that she needs to engage in colloquy every time but that's not what the rule requires and that's not what our case law requires the law requires that this require as a response ability to evaluate the mental ability of a defendant to evaluate if there's nothing in is required in every instance but here where there is evidence of mental illness and there is no what was the sort of what was the evidence of mental illness before judge because there was nothing before just how far the time that this court can take it's a no go over with this issue and looking at all of the evidence in this any suggestion that that he was incapable of understanding this was something that's significant but fairly routine there's simply no evidence one way or the other because the questions weren't asked you know the bench this case what the judge had before her was a seasoned defense attorney and an attorney who was represented by counsel and neither said anything or submitted anything in writing to the district court that's correct your honor so the only way you can prevail under this theory is if we adopt the rule judge griffith has suggested your argument at least implies namely that in every instance in which there is a waiver purported waiver of a right to a jury trial the district court who was on today must engage in a series of questions and what those questions are will be litigated ad infinitum but you are basically saying there must be a rule of an inquiry no your honor that's not our position in fact i don't think the court needs to reach that conclusion to find in our favor here today in our in our particular case you know these issues need to be evaluated based on the facts of the case in front of the court demonstrated there's no medical evidence per se in the record and you want to make a ruling on the basis of this record which i'm suggesting to you is best that there must be a colloquy in every case your honor i think in this case i mean there is evidence in the record that he was suffering from panic attacks and i know i know i listened to your honor's announcement beginning that  should refer to it generally but i want to clarify what's in the record for the purpose we are familiar with ok on this basis i think that there is an insufficient basis on which this court can judge the validity of that waiver we're not asking for a blanket rule that  every circumstance a court has to conduct an oral colloquy and sometimes i do not tell the police i'm not the implication there was nothing you acknowledged before the district court to indicate any reason to doubt your client competence to stand trial and no council made that point at the time we would certainly support such a supervisory role that's been adopted in the seventh circuit but that it's not necessary for this particular case as in david there is an proceeding that would give the district court some notice that there's a problem that the more the lawyer said nothing about it right said nothing about it there's nothing from mr trump's conduct that would suggest that there was a problem here should have triggered that there is nothing in front of her but that but the point is that a rule twenty three a a waiver alone isn't sufficient to waive a right to a jury trial that the district has a responsibility to determine whether that waiver is being made voluntarily intelligently  i think is that any defended who is convicted could likely make the saying argument based on the same type of medical evidence that is in this  record it's certainly possible your honor but i think you know it's the same argument that the government's making to a certain extent is relying on the image of a cunning defendant who's trying to game the system but relying on that image fails to protect defendants who are suffering from real something but you heard because you're arguing for just that rule you're telling this is i understand it that when a district court judge has no evidence whatsoever that there may be any problem with the competency of  the defendant and the defense attorneys say nothing about it that under that circumstance a district court judge must engage in a colloquy to discover if there's a mental health problem that is a significant  amendment of the rule and maybe it's a good one but typically we say take those good ideas to congress they're the ones who sets these rules so our position is simply that where there is no evidence of mental illness in the absence of an oral colloquy and you have just discover decline to impose a supervisory role at this point because we don't mind a necessary but we strongly encourage district courts to conduct this colloquy and on the record in front of us there's an insufficient basis to determine the validity of that waiver and i see him out of time i still have two arguments and i'm happy to address them on rebuttal unless further what are the other two that you want to address on a bottle raise the second issue that i want to address is that the district court effectively read the word correctly out of the obstruction of justice statute and to the third the third is that relates to the subornation of perjury convictions and here we're arguing that subornation of perjury has been interpreted to require other defendant knowingly and willfully induced her jury and these are issues that were never raised in the agreed that under david in this court's precedents red flags are required on the record to trigger a negro college we would submit that in amman's case there were three the first was that this was a multi defendant trial with several unique aspects the second is that the waiver forms that were submitted attorney present at all the critical moments she was present at the sole court room discussion of the waiver issue but what's a little bit different about this case than others is that that courtroom discussion didn't involve the final relinquishment of the right expected that if they expected that all defendants would be waiving their jury wasn't there some discussion that it was a tough call there's been lots of conversation back and forth that's true those suggest it was considered in detail by competent we' they said back and forth whether that means there was indecision or disagreement but the other defendant's attorney said back and forth but it wasn't done hastily right i mean that you can read from that that somehow the decision was made hastily there was a lot to this right died there and so the conversation ended with the government receiving a few days to think about it and the district court then proceeding to read her jury selection procedures apparently on the expectation that there was still some real chance that the case would go forward  so we would submit that that would have been an inappropriate time for amman to stand up and interject in and object the next time that the defendants are in the court room it's opening statements so we think that's a different case than some of the others from other  money she's been involved in the criminal justice system and if professionally professionally i think close to a decade at that point there's nothing in the record of how familiar she was with courtroom procedure however of even though she was certainly working from her criminal defense attorney counsel can be reversible error and we think in this model a defendant trial context particularly with him on trial with the boss and her mother there were two questions that a copy could have bantered in and should have answered the first was whether i'm on understood or that she couldn't be outvoted on this question by those two individuals and the second was whether she understood that she could retain her jury right without a care and her interest that is on i understand all of this if i was sitting as a district court right now on appeal and none of this was mentioned to the district court and it sounds like you know the fact that counsel didn't say i agree on that basis you're seeking  represent i apologize for that and so in any event she's been in the system for ten years she's an investigator she works for an attorney she was represented by her own attorney trials happen every day but it's certainly true that can't be one burst one basis for reversal no but i i think not a stranger to the criminal justice system there's no indication that she suffers from any mental defect or his slow mental right although that this course presents as ever first convictions on an inappropriate waivers without evidence of mental health issues and now i agree but i'm just trying to understand what counsel are asking us to do these trials go on every day counsel know how to make objections to the district court the district court knows how to respond here everybody is quiet right and then they come to the court of appeals and want everything reversed that's what i'm getting sure and that i think this is a case where it is you know everyone was quite a trial stage much like the boarding case where the waiver occurred based on what this court described this misinformation from the attorney that could have been resolved in a calm and that's why i mentioned no one has even hinted at  assistance of counsel so we are faced with a situation where the client is fully satisfied with her attorney there's no suggestion that the attorney did not do what he or she was supposed to do properly advising your client and yet we should say were hers that's what you're asking but that's not what it was a multi defendant trial but we it was it was a multi defended trial there's a question that  it's a situation where this defendant's attorney was never engaged in any discussion with the district court which we would submit is unusual compared with other cases and why why wasn't he i mean was there it was there something about the proceeding that forbade him from being a kid i think there's two reasons one other attorneys council were speaking at the time and saying i decide when i was an attorney i was called in plenty of multiparty litigation and it would just be absurd if i had told the client so if you were just so many lawyers there i couldn't speak up for you that might be ineffective assistance of counsel what is did rogers pointed at you there's no hint of that at all so that it's a mere fact that there are a couple of the lawyers there and her lawyer chose not to speak somehow that that's a red flag that that's i think it is a red flag when it's not when it's not the final this there's no indication from that discussion that it would be the last time that it was taking up this issue that that discussion ends in a  of course fundamental error with respect to mr foster was failing to separately evaluate the evidence against specifically and instead unfairly lumping her together with the other defendants in this case the overwhelming majority of the evidence cited in the district cour because you originally testified that miss pasha was there then he said well i can't remember who was there but an investigator was there and then he said i don't know i can't remember if the investigators were on the up stairs room where these discussions about the conspiracy were happening  she had conflicting testimony between him and none of them were characters who were particularly see very right and were had a particularly good track record when it came to credibility right  but i think her reasoning when looked at specifically with respect to diet pasha does not does not point to anything that would lend credence to the testimony of otherwise incredible winds for example and we've got a column here in that we're dealing with you evidence with respect to die a posture none of that implicates her in this case it might say something about mr daunt or some of the other defendants but when you look at her specifically none of that evidence implicates sort of the thousands of telephone call records that the government has between the with this is in this case which just had other information she did and she gave two reasons for that she said first of all she said all the other evidence upon which the court relied in its final for some reason she gave for why there was no prejudice here and again to refute back to my sufficiency argument if you if you look at the evidence with respect to my client specifically there is not a ton of other evidence against her this case with respect to diet pasha was on the razor's edge it was if the various and it was it was the testimony of one individual who said it was a man would realize the problems here and try to strike a deal no cross examination that was a clever move yet you know put him on but no cross examination why do you think that he didn't want to cross examine what i said that it's because the government  hayward to waive their theory of trial right but because they were spraying it really for the first time in front of the board in the government it wasn't going to happen then the government then go back and think about it which did it in the end and then well committable defendant who to the average person appears perfectly normal and ten answer simple questions and a with your attorney yes are you satisfied with your attorney's representation yes then what so my hypothetical is you have this certifiable person does the government's position post judgment motion district court is totally oblivious to any concern it isn't until we get to the court of appea let's assume that there was an error because somehow this caught somehow there wasn't enough on the record to satisfy the job done not sure there was under your hypothetical i was under my hypothetical i was trying to come up with a situation where it's perfectly obvious there is a problem but that would be fact finding by this court and a minimum unless we reading them today to the district court form are the purpose of making a further inquiry and certainly the court could do that but in your hypothetical because that is reviewed for a play there it's going to be up to the defendant to satisfy the burden of showing the error that it's played and most significantly the th determine whether or not there was some reason for our district court to have inquired further and i think our position would be a revenge would be appropriate in that circumstance that council says the implication of the argument on behalf of your client is not that there must be a colloquy in every case but that at the point when the court has some information then following up on judge wilkins point the court may find itself looking at the case again we don't believe that this this case even close to the hypothetical that your honor was positing in this case we have just a variety of circumstances that certainly show that this was a knowing waiver  investigators we have that from all three witnesses including the witness who put who didn't identify the guy and we have that corroborated by the phone conversation there are at least three or four phone conversations where they talk about the invest them investigators at the time similarly that paralegal work and her been down talked about how he interacted with the two of them over the stage photos he had both houses names in his cell phone we have diane nash going with mr down to inspect the evidence that's not incriminating but it shows that she's one of the investigators and shay's that's what i'm trying to find is the sure if the evidence is sufficient to show that they were the ones who were there then we would submit that the evidence was certainly sufficient to show and they knew the purpose it's a reasonable inference they knew the purpose of the shoot absolutely absolutely i think let me ask you about the previous you know this is really troubling i mean what the government has done here why shouldn't we when we meet this sort of misconduct say that it just is a game changer sorry government you act that way and that's the end of it right now is your honor asking where i'm asking you to defend the result in light of the clear for trial a month before trial after the defendants have strategized on their defense don their investigation interviewed their potential witnesses and the prosecutor  prosecutors are busy they have a lot of cases maybe this particular prosecutor hadn't started to focus on the trial preparation until a month before the trial date but then i thought  these proceedings events so the prosecutor had focused on the case before then he was she remembered one newly assigned to the case you know i think that they had certainly started trial i didn't believe yes so we didn't talk to you well that's absolutely wrong well you're right that's true your honor but i don't believe that was the reason for not turning it over that we didn't believe in the prosecutor acknowledge it passed from when he took a statement until when he disclosed it to me so that's true that's true that is true that is true when you just said is not true well as soon as he saw it he did not turn it over this soon as he saw it he put it somewhere else and only a month and then the information is turned over nine months later so to say that the evidence was fresh in the witnesses mind after three years but that this nine month period was the critical memory losing time is really not a very credible art argument but that's not the government's judgment to make well that's true i mean that the government should have turned it over but i'm saying you were trying to figure out what the prejudice is the issue is this witness w available to testify and what was important about his memory was what he was going to stay on the stand they told him they subpoenaed him if he was offered an opening statement by i believe diet  the the fact is that he did have a bunch of inconsistent statements that he wouldn't have been a very he wouldn't have been the witness that turned the tide in brady evaluation the court has look about whether there's a reasonable probability that it that testimony would have affected the outcome and we stay in this case there is that not only because of the evidence that there were that was there already but because he was that it credible with this they never asked for a continuance that they needed more time to look for other witnesses or even evidence based on this information none of that happened they had a month basically after they got this information and no doubt the witnesses state that his memory  robbery cases in armed robberies anything what the guy looked like he landed on the mess right what did they tell you that day when the head of the bass like comes in every day that's a description women but but even if even if his version was two women descriptions of two women does not include paid dial because she didn't match the description of the two women how good this witness was that identify ages of bacteria is there for the jury right but the facts are there and so what you're saying we have to find that there is a reasonable probability of a different outcome whether we have established that and i believe in this case that we have a staff just that given the fact that no other testimony says that it's a man and a woman the fact that this was a a witness who gave many inconsistent statements and the fact that all the other evidence shows that it was not only to women but it was also down to investigators that there was no evidence of a male in this or that you had the what did you call him not the intern i'm sorry there was another person needed to go explore it but as to this paralegal they obviously had found him because they called him as a witness so that evidence could have come out didn't come out the way it  in my time is up anything further well your honor i don't want it which raises issues that haven't been addressed that's fine i mean the other two issues are plain error issues that have been argued in the  the month before trial in two thousand and twelve the information was disclosed on april tenth the defendant or some member of the defense team interviewed the witness for the first time  then the government interviewed him and talked about what the witness had seen and then the defense interviewed him two times thereafter and the government interviewed him one time there pleading not guilty and that's that's the way you presented the error your honor it's also true that the first time we had noticed the district court's application of law in this case was in the verdicts so this is really our first meaningful opportunity to get review of that and we think because of that you can file a motion in the district court is under rule fifty one b i don't think that's required your honor i see no anything required you said this was the only opportunity and i asked you whether you could have filed circuit stating that in the after criminal bench trial the defendant needs to file a pleading to preserve view of the legal issues in that case and i want to just say briefly with respect to the obstruction of justice argument at least four circuit courts have held that for a defendant to act corruptly his actions must be prompted by a corrupt motive so even if you apply a plain error if you for this there's an absolutely clear legal norm that every word in a statute has to be given meaning and the only courts that have done that that have given some meaning to the word correctly have held that it requires an inquiry into the defendant's motive same thing with of our nation of perjury willfully at its core requires an action taken of one's own free will the district the district court but there were no red flags because the questions weren't asked a simple question about are you taking any medications today would have resulted in that red flag this court is looking for i think the value of finality shouldn't be place about the value of  words it is undeniably the responsibility of the district court to evaluate whether a defendant can competently make the decision to waive his story shall yes or honor thank you thank you i counsel  evidence with respect to the evidence against her specifically there is not overwhelming evidence there was hardly any evidence because the diet is specifically the government says well because they missions are investigators there are other invented individuals involved in this case including other investigators there's a woman who gets a lot of play in the governor's governments brief one by the name of tiffany archer the government discusses the pages thirteen and fifteen of its brief who was involved in the monterey white case and participated in a number of activities in the case there are other investigator y your position certainly the the statement is this close to the defense on april fifth the defense on that they asked for no help in finding mr montgomery the government had provided an out of date address for him the defense interview with the government his first interview with the defense and then when he's approached by the government is the first time he waivers we would submit when this court's looking at reasonable probability of whether the statement would have made a difference the right statement to look at is that statement nine months earlier