we bring a number of claims to the court i'd like to address them in the order stated in the briefs unless the court has some other preference and i'd like to begin at the beginning and start to a selection claim i want to take this claim i think i've argued enough i just don't want to repeat what's in the briefs if you don't mind a little focus the cases seem to say that even in those days when the jury was not the sente cing arm that it was proper to death qualified by the jury because that might have some impact on finding her guilty of the trial in this case  that seems to have borne some fruit because at least one or two of the excluded jurors indicated in the colloquy that in fact it might affect their ability to look at the guilt phase how do you sanctioned discussion of the penalty with the jury well is never a la carte versus mccree sense well i think it says that in the context of a death penalty case where the jury is going to perform both functions they're in on the penalty phase of the case this is not what was going on in montana at the time and our respect we submit that that nine hundred eighty nine legislation that was passed post with his own which came some years after witherspoon in montana that essentially said straight away that you can discuss this aspect of the penalty with the jury was wrong it categorically went against sound in settled rules in the state of montana that said that the penalty should not be discussed with the jury two cases clearly said that that predated the trial in this case so it's one thing to say that the sixth amendment fair cross section  of the arguments we make here today were dressed there apparently was no such record i think we should get some credit for it from the inception at jury selection which is part of the trial proper i think we should get some credit for registering the objection i don't know that that was made in firm versus when i did go back and read the briefs there i could determine whether it was going on so that's a distinguishing feature the second thing is that that's an a pick ace that's a way high standard that i'm certain the court is aware all right there needed to be some supreme court decision that said no this is wrong that's not what's in play here we can amalgamate decisions we can look at the circuit well we can do different things this case is alive under those where they would what's your best case for saying constitutional violation to death qualify jurors in a capital case where the jury will not be doing the sentencing oddly enough i think i'd say respond to versus f 's it stands for the principle that it's a supreme court decision it stands for the principle that people just don't have the right parties just don't have the right in the travel criminal case indiscriminately ask questions about what people think about certain things this was an incendiary issue in this trial and i knew that and i knew that it was going to be from the inception and  i respectfully state that there was an indication that none of the jurors knew that it was a death penalty case precautions had been taken up to a certain point there had been some press activity and so on but there was no direct indication that the jurors themselves that panel that we were going to select from had any specific knowledge of what the penalty was it was introduced essentially because the counsel would not go along with the objection and i think that needs to be taken into account here too if you read this record you can see that the track both the trial judge and the prosecutor the prosecutor was nonplussed by i made the objection and he said well she's i just always don't we do that i guess if you don't want to that be ok by us now there has to be something in that the trial judge made the record and said as a matter of tactics he doesn't want to go there at their might be some merit to that and i submit to you that under frank this court's decision in frank just discussing that penalty with the jury was the wrong thing to do the cases the general cases that talk about discussing the penalty which aren't discussed in firm versus would talk about what they can do it can lessen the burden of proof it introduces irrelevant matters into the equation it's a very dangerous thing people are primed for that will get with later but i make an argument here that we were acquitted on the deliberate homicide charge was this just some kind of well we have to settle for something this was a real serious case somebody got he killed here a real serious matter the answer to that question is we don't know and i'll leave this issue with the point that i said i started the haney study which goes back to was somewhat criticized by the montana supreme court and they picked up where the united states supreme court said well those studies have flaws in them i want to respectfully kentucky and i was showing in a principled way that i had a justification for that tactical argument and that's as far as it goes i don't bear the the onus or we don't bear the  of proving the absolute truth of those studies it's it was good enough for us it seems who was that if we discussed the penalty with the jury we were going to be in trouble that's why we made the objection and i think in the end it bears that out that there is no case that i can cite that accounts for the tension between do not discuss the penalty with the jury process type considerations and we're just trying to enlarge the scope here the next issue that i will talk about quickly unless there would be concerns is the exhaustion on the notice claim make to contentions here first that we clearly exhausted it in direct appeal detail how that comes to well we tried to set out in the our blue brief in this court what we set out in the blue argument and said that if you just read the legislation in its entirety the can ability statute the penalty statutes and i guess i'll go right to a point that i think it's important to try a lot of cases in federal court look at eighteen u s c section two the penalties in the section you are beholden to the government for a penalty that's exactly the one that the principle would get it says it right in the text of legislation it doesn't say that montana district court denied this claim is not exhaustive is that correct so what remedy are you looking to on this on claims well i briefed both the and the procedur problem or the procedural issue and the merits of the claim thinking that the court would reach the merits of the district court rules that the federal district court rules are gone exhausted but i frankly we just don't see how that can be i mean either it was exhausted in direct appeal to her had a minimum it was exhausted in post conviction and i tried to think this through i just didn't want to be standing here having you're actually asked me why i didn't brief the merits i thought it was just comprehensive enough to see a way that i i just went ahead and did the right there's no question that the right thing with regard to that i'm just saying if we were determined that it was an exhausted what would you have this do well i guess my first inclination would be to send it back down to the district court yes and what would the district court do and the district court would have to give us a careful study the analysis of the noticed issue and render a decision on it and if necessary we come back here ruling was that it was not exhausted we just repeatedly kept trying to get beyond that but never did is there enough on the record which would allow us to look at the m be the best receiver so i'll leave those those two claims and move on to the double jeopardy collateral estoppel point i make a concession here this is i thi is a tough go in some ways for us because it's hard to understand i have great these cases repeatedly and some of them are just so w y they're just difficult to comprehend but i stayed more controls on this issue goes well that's added into the mix i think that's what complicates the argument if you want to draw a line in the sand that's a good place to start but i think that the nature of the claim that makes it sort of amorphous this is what actually went on here and what was convicted on or not they were both convicted your honor of homicide by accountability and the not guilty verdicts were marked as to each defendant for deliberate homicide for count one share versus for the end she had versus arizona i think that's really this issue gets resolved here the thing that makes this case different is that you have to draw into it it what the prosecution did here with these charges and if you think this is true from the beginning it's actually kind of interesting to think about it they're charged with illiterate homicide and we go on through the case for a little bit and we're working our case in their work in marriage and the prosecutor who is a very good prosecutor very evil lawyer mr connor he's thinking well jeez you know this could be one of those situations where maybe each blames the other the jury can't figure out who did what and suffice it to say he wants to at this charge so we can see him with this amended information and i think it's important if state law controls here that it should control the way around i think the only case that really discussed this maybe was duncan that was the montana supreme court decision that might have some applicability here but i have misgivings about that but in any case the alternative nature of the charge i think in the the confines of what can the technical aspects of this prosecution didn't allow for that because when the information was amended they broke into two counts and from there the government goes and gives the jury instructions makes argument proper to the to the jury through some nation of the case and says do it one way or the other you have a choice here one way or the other convict him of the deliberate homicide or convict him of the accountability theory but don't convict him of both and respectfully my argument here is if you give a careful reading to share that into shiro versus farley you see that the jury instructions in the style of the charge can have a major impact on how this issue gets analyzed and if you do that what happens here is that maybe there was a prosecutorial error and i don't mean  homicide by accountability and then again we get rewired into the notice argument but suffice it to say that they had to prove the liberal homicide we look at the jury verdict sister not guilty of that so how can the judge case was charged in the way the law the condition of the state law at the time it's very different than what went on here and i think those differences mean something here it's not just something to say well we're the montana supreme court there the remaining issues in one incarnation or another involved essentially non disclosure of evidence just before we move to that at what point in the trial proceedings did the government amend the state amend the information you're on i want to say that was like may of that year i want to say that the first information penn did about six weeks five weeks these last claims to deal with this nondisclosure of evidence and i actually think that in some measure that these claims are set up pretty well in the briefs but i  what i'd like to focus here on is the october seventeenth letter of mr armstrong and we've been arguing this just repeatedly and every jurist to lay eyes on it just doesn't mean anything if you look at this letter over and against the trial testimony there's no material distinction and i think we emphatically come to the court and please ask the court to give that a ask for anything was anything given to you and we got this no other than guaranteed safety now everybody that has looked at this claim since the letter was disclosed in one nine hundred ninety seven well that's what he said he said that he was promised guarantee safety so mox nix he's just telling you what he would he got and it happened to include  maybe the release from prison in montana supreme court says that they make that remark by the way in passing they say we recognize that some extraordinary help was given to this gentleman to get him out of prison but nonetheless at the trial proper he said he was getting guaranteed safety and that's what he was getting at the time that's all he was entitled to what's the prejudice in this particular issue was the prejudice to the heart in terms of that letter y was at the first trial and say yeah you wrote this letter seventy days after the verdict on october twenty fourth and you had you registered some complaints and they were directed to whom to the  get things that you claimed you were entitled to i just can't see or we just can't see how that could not meet committee here ial difference in the outcome of this trial what was in there or impeachment evidence this is a pretty nuanced explanation of what he thinks he was entitle to and he says armstrong in the letter i asked for that before ever coming here that's a very telling statement he's in the county jail now at the trial he says i really didn't ask for anything i just wanted to come forward and he not only said he wanted to be safe he he wanted to be safe but the point i was going to make your honor is that the prosecution picks up on that apparent need for safety and parleys that into this sort of double barreled argument the safety and the goodness of the act in coming forward and that is just stressed at the trial how upstanding this individual  and i think you have to take account of the fact that the government knew going into it that he was going to be attacked and they took the precaution of the case in chief precaution of bringing a lot of that evidence out on the case in chief and say you know you've done this and you've done this and you've had this problem you've had that problem but it's a new day isn't it mr armstrong and they laid that floor they built that structure and none of it was true and that letter shows that and disclosure of this was just absolutely essential and then you think about the timing of it how it compromised us all along the way we went through the entire direct appeal process and had no knowledge of that letter just not if any if it had been disclosed a couple of days after it had been received we still would have been in time for a new trial motion and the cases in this circuit say that's a critical stage of criminal prosecution three orders by judge level that are at issue and in this appeal to concerning the exhaustion issue he ruled a second time on petitioners motion for reconsideration and then of course the main order of january two thousand and five which discusses the merits of all apply to situations where the jury is not involved in the sentencing decision i think this decision was  as appropriate under the circumstances montana of course does not have jury sentencing in capital cases even today arizona did at one point in time and before they amended their statute there were some cases arising with the same issue and i think there are a couple cases pending before the court or at least in the sea away stage that make it come up to the court eventually with this issue concerning the qualification of juries with non sentencing obligations in capital cases i came across to in my research to the goal branson case in the band adam's case out of district court in arizona event there are several things that are clear from the record that were the basis for the decisions by judge lovell and also by the montana supreme court first of all death qualification is specifically provided under and and the creek and just levels order recognizes that there are situations even though the jury is not involved in the sentencing phase of the trial there are situations and the two way street is it possible that there are jurors who are trigger happy with respect to the death penalty that could be your honor and i think the purpose of your diary is to eliminate those jurors as  about the firm and versus word case you heard mr mahoney's effort to distinguish that it's the ninth circuit case what's your response to his efforts to distinguish i think the case interpretation of of not only firman but also the proceeding cases is a correct analysis of the law pplication in this case would would not be appropriate i'd like to turn to the notice issue with the court has no further questions on that qualification as you know i think you're wise to address the notice issue if that's very significant issue in this case merits of the claim seven the merits of never been addressed by any court montana supreme court did not address the merits of this due process fair notice claim so what are we to review there's nothing in the way of court order for this  court review other then judge lovell's conclusion that this claim was an exhausted and therefore procedurally part if we determine that it was exhaust what should we do i would i would agree with counsel that i think correct remedy would be a remand to the judge level to consider the merits of the claim i don't think the court i'm not sure  on to what he considered to be a separate offense deliberate homicide by accountability he argued that the statute should be construed in that manner looking at it on  face and that if there was some ambiguity in the statute that that ambiguity should be resolved in his favor because he was entitled to the rule of l can have it both ways on that it was either in front of that and they're declining to roll again or it wasn't in front of it and they can say it wasn't previously great but they can't say court indicated that it would not reconsider this issue or again look at it i guess i i don't have the quote in front of you going to again address i believe the montana supreme court was essentially stating that it recognized the petitioners argument that petitioner was asking the court for an opinion which would bind the federal district judge with respect to the exhaustion issue in the court accepted the respondents argument that montana supreme court did not have to go down that path there were state law reasons why this issue was not properly presented in the context of a post conviction proceeding and the court recognized there were two reasons that that would preclude consideration of the issue in the context of the post conviction proceeding one was that if the claim was not raised and  and was before it in the post convention proceeding that the claim was procedurally part because it could have been raised in the context of the direct appeal the second was that if arguably the claim had been raised and looking back at the pleadings someone down the road was to conclude that yes that due process argument was in some sense fairly presented to the montana supreme court that the consideration of the issue and post conviction would be barred by the the underlying state court proceedings are what's the guidance to the federal judge if you're just to follow your approach here federal judge of course has has a lot of guidance on the exhaustion etitioner present the facts in the law which underlie this federal claim to the state courts as a matter of first impression to allow the state courts to consider it and  will concluded that the petitioner did not but there's nothing in his argument to montana supreme court that could be construed as a fair presentation of this issue to the state court first but only in the context of the application of the rule of the nitty and her discussion of why gone should be entitled to the benefit of that rule so the notice requirement was not and montana supreme court this this issue and the montana supreme court has stated clearly the majority in call hons on direct appeal that deliberate homicide and  either of both defendants under one theory or the other they could not convict the defendants of both charges and the jury was instructed to find the  if they found the defendant guilty to find the defendant guilty of of one offense and not guilty with respect to the other that's what the jury did and montana supreme court's interpretation of montana law makes it clear that  the charge under the accountability theory that view of the accountability statute i think is has been reinforced by the montana supreme court and numerous decisions since that hundred ninety one of course was written after the trial i understand counsel's argument that somehow this suggested that there were there was in fact some kind of pretrial understanding that  d armstrong eyewitness would be housed at the county jail let me just put this in the context of what the sentencing court knew what the jury knew at the time their lodge and taken to the pal county jail and he remained there more or less and solitary confinement at that at the county jail for about eight or nine months until until the trial while he was in the jail in  july he wrote a letter to present authorities asking them to consider reclassified him so he could become a trustee at the jail and this letter was was made known to defense counsel the letter that came after the trial the trial was in was a response to that letter yes the prison authorities said no we're not going to change  september early october about a week or so after the prison riot and case and following his testimony he did write a letter again asking for trustee status petitioner thinks that this is a reference to some kind of a promise to retain armstrong at the county jail and that circumstances armstrong had to give up quite a few of his privileges with respect to his movement and his activities simply by being in the county jail but he was there and he was not very happy with the fact that he did not receive trustee status and so this letter was simply another request that he made to to attempt to get trustee status for himself when he was deposed in the context of the post conviction proceedings he testified at some length about this letter and confirmed that no there had not been any promised to confine him in any particular location made before the trial fact really wasn't any promise made after trial he hoped that you would not go back to the state prison and and the prosecutor john connor thought that was not going to happen it turned out that it didn't happen at least for a short period of time after armstrong violated the rules at the at the county jail he was taken back and held at the infirmary of the state prison and then a few months later he was transferred out of state to a prison facility in washington but the point is that armstrong never said that there was any promised to housing that at the county jail in polk county or anywhere else in any other facility and  cough cation argument is and on the exhaustion question i would like to respectfully point out in reply that that montana supreme court adopted the wording propose and was not exhausted there was no mention of possible race you to come out of there couldn't be because that would have opened the door to some kind of exhaustion and so it was put in this ambivalent posture over in the montana supreme court at that ruling do you have a specific comment with respect to the passage of the judge wardlaw read well that under the cases we cited in particular last twenty j letter that we lodged if there's a possibility that it was race to the car than the court essentially saying that there's a possibility that it was addressed in the context of the direct appeal which would mean it was exhausted and in any case the claim was clearly fairly presented in the context of the post conviction and there was no down little procedural default ruling by the montana supreme court in that context t business you know it's easy to determine sometimes when an actor or two in a criminal context misbehaves you know because there's a paper trail there's evidence you have to think a print you know there's this blood spatter there since there's that and i don't mean to be sinister here but you know when you get to dealing with the monolithic organization of the government it's hard to keep track of things armstrong to talk to many people if you looked at the trial testimony you would see that when he was initially interviewed it was by a group of persons prison law enforcement those kinds of people and he needs the categorical assertion at the trial that he was never offered there was never any quid pro quo that is  impeached by that letter and in no uncertain terms i was told before i came here that i wanted x y and z and i was told we can do that i would have that and that is immaterial distinction and i'm pleased as the court to keep