prejudice based on ethnicity immigration status or substance abuse secondly whether there was sufficient evidence in the case to support a finding beyond a reasonable doubt that mr garcia was condition questions about the third i will stand on our brief with respect that on that first issue the status of my identity question that got to ask you to listen to response with regard to substance abuse and that that asking a general catchall question about whether a person has a reason or prejudice and why they can't sit a single question of that nature is not sufficient and that in this of mexican origin he had two spanish speaking interpreters to help him throughout the court process to be his first language was not english but spanish and  has came into that courtroom in an environment where there was a very politically charged public debate about immigrants there had been comments made including from the presidents of the united states about mexican immigrants being drug dealers and and involved in other sorts of criminal activity and there had been political marches in chicago lots of press attention to the issue and we wanted to make sure that our jurors if they had any strong opinions either for or against or about people of mexican origin or immigrants in general would be able to express that in that and not be seated or at least we would have that information in order to be able to exercise our peremptory challenges in the in the proper way as i think there was or three questions with regard to ethnicity that we sought to have asked first was do you have any close friends family members or colleagues who are mexican american or latino the second is do you have any opinions about immigrants that may interfere with your ability to be fair and impartial in this case and the third was what is your closest relationship with a person of mexican descent and the district court refused to answer or ask any of those questions or to allow counsel to ask any of those questions and there seem to be three reasons that the court gave the first of which was concerned that there were people of all nationalities that would be called to sit on the jury which really didn't address our specific concern which was whether any of these people irrespective of nationalities or backgrounds of the jurors had opinions which would be prejudicial to mr garcia the second reason that he gave was that mr garcia could easily be a citizen as well as a non citizen and so there was no reason to ask the question the problem with that approach to it while in an ordinary case that may be true when you have someone with  with a name like garcia who was also using spanish interpreters and it leaves the impression with the jury first of all that this is not a native english speaker and so the first thing that they may or may not think i don't recall that there was a judge there may have been but i don't recall that there was questions but the standard of review here is deferential to the district judge on the spot that's correct so what was it about this that maybe not just a good who is spanish speaking is not common every day although it happens in our courts that people testify or sit through a trial with interpreters so there is a reason to provoke questions that will go unanswered in the jury's mind and second of all there was the political context in which this trial occurred and that was key to politics of the time well the politics of the time and very specifically the words that were the then president and still president of the united states saying that mexicans come here to deal drugs and rape people and do other other things so it's from the top down and in the in the newspapers all the time this debate about who immigrants are to this country in particular people that come from mexico central america and south america and what they're doing here and th evoked and continues to evoke very strong feelings and reactions so it was particularly key in this case that we find out whether our jurors had any of these kinds of order the jurors with respect to their prejudice because what we have in the evidence a series of tape recorded conversations i believe they were eight of them and those tape recorded conversations were in spanish so they were not actually played for the jurors rather there were agents who read the part of each of the two participants neither of the participants mr garcia nor the people speaking on these tapes were called to testify or did testify and the tapes and the english translations of those tapes were interpreted by another agent who kno themselves were not clear in terms of what was going on at issue was a an alleged drug transaction on a single day april seventeenth  for what a couple years it had the investigation had started in two thousand and ten and mr garcia didn't become a part of that investigation until april march or april of two thousand and twelve and because he first of all was not illegally here he was here and had an application pending for permanent residence he was a young man who came here at the age of fifteen he had no prior pressure criminal background children i believe from two different relationships he his parents are here all of his siblings are here and all but him are either permanent residents or citizens at this point and because of the age at which he was brought here he doesn't have a network of contacts and family members back in mexico so it would be a terrific hardship both for him and all of his kids  until this court makes its decision and so it's unlikely that he would be deported before the case is decided left them as no money no drugs no nothing that was yes that was not a separate day sorry they were two separate days after and the day of the actual transaction there was no stop and there was no follow up to determine what actually happened they believed based on the phone calls that happened on that day that the transaction happened but they had nothing to corroborate that well they are you know there were references  transaction and there was a conversation back and forth that the agent interpreted as being that cocaine that mr narrowness to them allegedly received was bad and that he was going to return it and so based on that conversation they followed mr garcia on another day which was two days later and they believed based on their interpretation of the conversations that when they stopped him he would have the cocaine in his car fourteenth where they stopped him and it turned out that they had either misinterpret there or they were flat wrong or things didn't go the way they were crying and because mr garcia had nothing in his car he had two phones in his car which he that he was involved in drug trafficking so what we were left with at trial was the translated tape recordings and other agents interpretation of those recordings so w that the government has been critical of this approach and used the same house to compare it to i wouldn't know or point out to the court that in say there was an actual participant who testified against the defendant and they had found a large quantity of money in the truck of the people that were on trial which was explained by the the participant that was cooperated in this case we don't have any of that related to possible bias along lines of ethnicity or immigration status is not required by the constitution or by the supreme court's supervisory rule unless that subject is inextricably bound up with the and circumstances of the case that's on trial and this is not a case that was like that this case was about a drug deal that had nothing to do with anyone's ethnicity or immigration status and these were simply not issues that were  any concern to the jurors deciding the case mr bender you're your office does tries a lot of criminal cases downstairs in this building how unusual was this approach two to four dyer this is the right if i've been presiding i would have asked a lot more questions along these lines and i appreciate the the abuse of discretion standard here but i'm just trying to get some sense of actual practices and you within this was an issue that with the side of between the district court of the defendant and did this analysis with regard to the questions happens about five days prior to the actual voir dire correct as i recall the it was yes it questions i i'm not entirely sure but i don't think that there were any proposed for your questions that that the government submitted own and i take it there's nothing in the record concerning the racial composition of the jury the exercise of of fourteen jurors and the other four on the second panel so he was out of print crease by the time they got to the third panel and it was after that after the third panel that the jury was selected the defendant did not ask for more peremptory challenges and i believe all of his cause challenges on the third panel were granted by the district court for granted were granted by the district court as far as the racial or ethnic composition of the jury all i can say is that is that it appears to me that there are four surnames on the jury that was seated that i would say were were hispanic but you know so what that says about the ethnicity of this of this juror that i really don't know in the jury deliberated was thirteen jurors are correct twelve fourteen were selected twelve jurors and two alternates and i think it is that record transcript to nine to ten where the judge has the clerk read the names of the fourteen selected jurors and the first twelve are jury the that decided the case and the last two are the alternate senator in that group of the first twelve that to my eye there are four hispanic names and i may have been correct i think i believe the jury verdict form itself might have thirteen signatures including the foreperson but i with regard to the sufficiency of the evidence that the evidence was supported by sufficient or the verdict was supported by sufficient evidence in this case a properly constructed jury considered properly admitted evidence heard all of the arguments that are being made here today about what to make of that evidence and the jury convicted there's no procedurally irregularity in the way that this came about and there is no there's no there's no basis on which to regard that verdict as has unreliable or i'm trying to figure out mr binney if we've confirmed convictions on an equally  even a case asian but somebody from from outside the case who seems to have the jury's job delegated to him to interpret those of those phone conversations and conclude must have been a fuel cocaine on considerable experience which was put on the record for the jury to consider is experience in investigating narcotics prosecuting him it may well be inspired inference by two for concluding that that must have been twenty four thousand dollars and must have been there for a reference to a queue of cocaine seems all speculative to me in terms of proving beyond a reasonable doubt that well maybe garcia is guilty but did you prove it is a question well again that was it that was a good question for the jury and they did hear all of these arguments made by the defendant with what to and you've got a coconspirator telling testifying in the trial that's a house in fact holding proxy that's sufficient evidence obviously that is sufficient evidence and here well here your honor you have you have the evidence of the defendant the phone conversations are the are the lion's share of the government's evidence in this case yes no question about it and but those phone conversations they're suspicious no doubt about it they're well they're they're obviously is a conversation between two people who are trying very hard not to say exactly what they mean here that someone is listening in and that's common in drug cases that an agent lab know has seen it many times and we've all seen it many times and and agent lab conversation was it's how it's hard to it's hard to see how a jury could make sense out of these conversations without help from expert testimony and there's been there was no objection to the relevance of whether was objection to relevance but not to the basis of lendl's expertise and and that was put before the jury and they considered it the argument was made that it was speculative and they rejected them shifting to the amount the day after both of the transaction took place where there are references to numbers and lab know interprets those to mean i think higher percentages this is laid out in the government's brief i'm not sure exactly what page but quantity calculation at sentencing and you know again this was this was really the primary subject on which leno was cross examined was the meaning of two four and whether it was you know twenty four thousand dollars which would be the price of a  kilogram or twenty four hundred dollars which would be the present something less and his testimony was that that in the context of this conversation and everything else that went on during it it was unlikely that it was anything other than twenty four thousand in a reference to a kilo there was no testimony about what you know the defendant's argument is that they could have been talking about imus's instead of kilos there was no evidence or what the going rate of an ounce of cocaine was in this market have agreed to ask those questions or some variation and those questions in order to get at the issue which is whether anybody is harboring any prejudice that would be difficult with respect to th outright refused to answer ask those questions or questions similar to that and that's just my experience judge yeah i know i don't i don't purport to speak for anybody else with respect to the surnames on the members of the jury that the question is not what their ethnicity was but what they thought about other people's ethnicity and what their experience was and most particularly in the question of immigrants which naturally would have come to their minds under the circumstances that had been the interpreters present because even people of mexican origin and may have strong feelings against immigrants coming depending on which way they came and given that the context of the public debate  that two for could have drug parlance also stood for twenty four hundred twenty four it could have stood for quantities of dollars as well as quantities of drugs and it was his belief in th particular case that it was twenty four thousand and it was that it was a cute little thing we did present other evidence other evidence of other quantities of drugs that were exchanged during the