their time so the have ten minutes ten minutes for each side for each party and if they want to reserve some time for obama then they should stop before the  cooperation with what is necessarily somewhat of an experiment caused by the current crisis and also i should have on the on the system on and twenty minutes per side if judges have questions and they want to take more time i've counseled just you know desperately need another minute or two  court indicating that they wish counsel to focus oral argument on the juror discharged issue and i am one to abide by the court's summoning instructions that was miss rasmussen issuing the joint briefing so that i will  so what happened in this case was a trial that started in t n uare and then was sent to the jury for deliberation on march nd two thousand and seventeen and you know when i was looking at the timing of this in prepping for oral argument today i noticed how how how little time they had actually spent a liberating soldiers we tired to begin to liberation out about nine forty five in the morning it looks like and then at twelve o six that same day less than three hours later they had a request for clarification on a  question pertaining to some of the evidence they were given any answer to that they were sent out at twelve eleven pm and then it one thousand two hundred and twenty they came back with another question issue with the juror who quote unquote according to a no other juror was refusing to deliberate there was a hearing that was held by the district court at this point everyone appeared in person i think the other jury question issues have been handled by phone and everyone showed up at about one o'clock and two o'clock the court had dismissed the juror and replaced juror number five with an alternate so the manner in which the court did this and this is what we alleged in the brief was insufficient inquiry it was it was done with leading questions to a rival to a conclusion that the juror needed to be replaced because she was refusing to deliberate but that's not actually what happened because she wanted to clarify and to provide cont responses to the court and the district court didn't allow her the opportunity to clarify and her by context to those responses counsel so yes i just want to ask one question before you go on because i've also spent some time on this timeline i think the important foundation that the trial spanned several weeks as you vic described but of course it was also shortened trial days and i was trying to figure out how much evidence because they only deliberated as you indicated that morning but it looks to me like what is all else being equal would have been about a two week trial is that a fair assessment well i think that this was i believe day thirty four or thirty five of trial when they finally sent it to the jury and they were doing half days so i had kind of thought it was more more like three to four week a solution and an outcome rather than an open ended with the jurors there were a couple jurors that were brought in as you can see from the record who were asked pointed questions the foreman in particular seemed to believe that they could reach a verdict if they didn't have this one juror that's not the way we do it and that's not a standard in the case file doesn't support that kind of activism i would say  so and under this court's precedents and it's and minutely a tricky task because you can't ask what's going on in the deliberations of the questioning and the way it happened in this case didn't lead to any meaningful inquiry as to whether or not there was a legitimate basis to send them back for further deliberation there was no human consideration giving an allen charge or anything else the decision as this court knows from its own precedents to excuse  is within the court's discretion but the court commits clear error where it doesn't make an adequate inquiry and i think that in this case record statements from the court's prior observations that had never been in the record before there was some communication that the district court discussed that the court had with or that the juror had with the court staff that had never been in the record prior to this day and in all it appears from what occurred that i mean frankly they replaced the ger with an alternate and then still ended up hung on several counts so when this kind of error occurs we don't know we can't ascertain the damage to the process to the right to a fair and impartial jury and we can't ascertain the harm to my client mr letwin or into mr hill's client after went so far and that's why this case should be reversed this is an improper and trends into the deliberations of a juror by a court with with the jury just hours in literally hours into a trial that had started earlier and even if it had run on a full time schedule this would have been a trial that it stands at least two weeks more like three and i understand the playing ball well seems wholly inappropriate in this case i didn't ask when i said i did not ask when i started if i could reserve some of my time i'm since the court has narrowed the live for us in this case if you do you may reserve as much time as you want ok so i'd like to just reserve five minutes if the court house has other questions i'd be happy to answer and i thought it was really important to focus on the timeline and how this played out in court but otherwise i would turn it over to the government if the court doesn't have questions on me on this particular issue eight describe things and how jury ten describe things so maybe you could go through for this dirty dirty eight the st one to speak and he would he says that she made his declaratory statement as soon as they sat down but atory statements why is that not adequate support for the court's finding a judge did you want her to answer now you know i thought i would do what you get would put out those are my questions for both lawyers and then perhaps counsel like to be thinking about that when she comes back but that we can proceed to  searches and seizures of both the safety deposit boxes and the wholesale seizure of all of the medical files and doctor went so far in mr lipman's medical practice certainly before i launch into it as i mentioned earlier the parties were advised to focus their argument on the church's charged issue my analysis was at the more pressing of the two was the wholesale seizure of the medical files from the office so i guess i'll start by asking it if any of that of the judges have any specific questions i know certainly in their review of the briefing must have to term and the jury just charge issues the most important if there aren't any specific questions or kind of discuss the two more analysis as regards the whole cells you're all the medical files sounds that sounds fine to me and peculiar questions but i do want to make sure that you're getting them to argue all issue we have a remarkable close a set of facts here to this court's two more a case which in the comprehensive drug testing case the court referred to it as venerable precedent in terms of how to search and seize large and potentially unmanageable amounts of data so both in this case and in the two more a case we have an office the search and seizure is executed and they in the tumour case they end up taking just all of the files within the relevant time period here they went one step further although the warrant limited the search and seizure files at the medical office to files pertaining to the  subscription of controlled substances they seized not just any limited set of files but every single file in the medical practice and i think now naturally this court is aware that in two mora that search there's a couple of differences though number one to morris set forth this precedent this court set into more of this is a close case they took all of the files they said it's a closed case but they advised in the future and i think that's what the government is missing is the advisory nature of two more we fast forward so that's difference number one tomorrow didn't exist when the tumor a search was executed and now we have this line of cases most recently we can look at the comprehensive drug testing case where the magistrate judge there was advised by the government that there was going to be data in excess of that for which was supported by probable cause  in the search but citing specifically to to mora they asked the government asked the magistrate to set forth guidelines both seizure guidelines how to store all  information and they set up a taped team in the actual search warrant and other words who's going to review the data and access of the probable cause materials how fast is are going to be returned and all of these sorts of guidelines more are pretty strongly suggested should be the case going forward where we have a search and seizure for materials in excess of that supported by probable cause so i think that's difference number one it is it seems like a difficult argument though doesn't it i mean it's more a talks about search being motivated by practicality and not by fishing and here they just went today medical office dr western was there and told them this warrant covered most of the material and i think there's not really a dispute that actually did it so it seems like a fairly extreme remedy to just suppress absolutely everything that was taken from the office under our case law well i think ultimately your honor it was about twenty percent of the files ended up being covered and i i think what i'm asking the court to consider is the reason they called it one of the reasons i think it was a close call in to more is because these guidelines had been set forth there were you know where is the twenty percent point where it where does that come from i am going to counsel maybe you're doing that if i can clarify to follow up on judge press this question my understanding is weren't covered all of the patients files that had prescription medication and that when he was told that your client said then words the fact of the you going to take just about everything is that right i got that wrong your correct wrong ok so if you want to answer judge best as question because even if it ultimately turned out to be only twenty percent which w not my understanding from the records if you've got that other information i'd be interested in it but at the time of course that's two thousand and twenty hindsight and at that time i think the officers were told by your client just about all the files had prescriptions in them so six of the excerpts of record at sixty five to fifteen that the government retained only two hundred and thirty eight medical files and they had  be worth around a one thousand files so that that's where that that twenty percent that roughly twenty percent number so the government only retains two hundred and thirty eight dollars files out of the approximate one thousand fi percentage of files that was covered by the warrants i thought that even at the hearing on this float that delta between your clients and the government on that question was not really exact rate was something like seventy five to ninety percent was covered whether they retained it or not doesn't really speak to the question well i suppose i was drawing one inference there that being that the government would retain the program of files in other words  perhaps the inference i was drawing was yes that if they're going to retain files to use of evidence those ones responsive to the warrant but i suppose to the greater question even i mean i understand it could potentially be a question of degree but even one file in access of those listed in the warrant would be a search and seizure in excess i anticipated the court's question about certainly my client i'm saying as a stabl the record below you're going to have to take all of them and i understand that but that still that alone does not expand the perimeters of the warrant in other words i don't know that that could be categorized as if he's presented with a warrant and they're saying here is what we're here to take and he says well i guess if that's what your excess you're going to have to take almost all of them when it turns out at the end of the day i mean was it was it nerves or was it what who knows but that wasn't the case there united states counsel mr reed and mr reed although this was said with twenty minutes per side i want to say that because we are giving some extra time to the balance for bubble that if you need more than twenty minutes for your argument just deliberate every view when you read the trial transcript it shows that the district court acted skillfully and within his discretion before asking any questions jurors that this report told the parties that it was going to ask questions and attempt to determine whether this was a genuine disagreement or just a refusal to deliberate and before the court questioned your who all it was provided to the core the court told the jury that it needed to ask some questions related to whether juror number five was refusing to deliberate or had a genuine disagreement with the why don't think that's correct i don't think she acknowledged that she said she was that she was given a statement from the court to the effect of you want change your mind no matter what she acknowledged having made that statement but i think that was probably the extent of what she acknowledged wasn't  deliberations no matter what you would not change your mind did you make that statement in her her statement to the court her answer to the court was idea yes she did equivocate but this court has about the soon to be set down but then upon in court he says if as the evidence rule the end and we started to debate juror number ten the nd tour described it the way i think you described it which is it is a much less ambiguous statement he just says that she made this statement no matter what statement as soon as they sat down but here's my other prop while i actually have several other questions but in this colloquy that you were referring to the judge asked at one point the judge said asked her whether she remembered being instructed that she has to listen to her fellow jurors and she responds i do and i did and then another point the judge said i i directed you to deliberate toward of verdict and she said i am willing to do that in fact i haven't done that so the difficulty i have to cut to the chase is that a juror who says i'm not going to change my mind no matter what if that's all we had and and admittedly she's i think she agrees she said it three times but that could be consistent with saying i have a different view of the evidence as opposed to saying i'm not going to listen to the evidence or listen to my fellow jurors so i just in fairness i really want to have a chance to to to to to go to that point why should we not construe her statement as consistent with a juror who has a different view of the evidence important difference where did she ever say i won't consider the evidence i think she says that no matter what statement i don't think you have because i won't consider the evidence that's because that's it that's a big difference do you have that statement in the record i  think you are spread she didn't say to the court greatly i won't consider the evidence the other jurors made that statement to the core and the district court is entitle seem to credit believe determinations involving those other two jurors and with what with respect to what is your head said if i could just find it where she said  because the judge is questioning there was a little more expansive and at one point jury said you know she could she's just confused about one part of the jury instruction and we have tried multiple angles we tr explain it to her and read it to her several times that makes it sound like there is some disagreement about the substance of the case and also makes it sound like there was some amount of deliberation that occurred so i guess district court that the court was in a difficult situation because of this the standards apply the court was very aware of them if you ask if you intrude too much then it is an automatic reversal because of course elicited information is not entitle to have about where the jurors stand respectively on the merits of the case and i would submit that the answer to that question try to follow up on asking what was the problem with the jury structure that is going to open a pandora's box about how that might apply to the evidence and what the jurors have been discussing so the decor had be very skillfully navigate around what's going on behind that the jury room doors and here i think you're i mean you're make a fair point about why the district court judge may not want  to follow up further and i understand that point you're making but we do have regardless of that point we do have these statements about the jury instruction there was some discussion about this jury instruction disagreement over the dirt jury instruction you know typically when there's disagreement over the meaning of the jury instruction it's in the context of the evidence presented so regardless of whether the district court should have followed up further and i take your point on why he may have reasonably decided not to we still have this trying to figure out what why what was a basis of the of the disagreement here and this seems like a disagreement on the merits  evidence that the church more likely than not was refusing to follow the course instructions which we don't know exactly where they may have been but it may have been the  jurors are required to consider the evidence with the jurors and discuss it and work towards a collective decision and deliberate but i don't think that i would respectfully disagree that it an objective fact this coworking consider in determining whether or not just was a refusal to deliberate versus a genuine disagreement as to the merits of the case  potential malice to the court having been put on a jury when it was not convenient when she asked to be taken off the jury is the government defending that aspect of this record decision rely on making this credibility determination about this juror's willingness to requires automatic retrial or do we consider harm some sort of harmless  the substantive controlled substances counts and he was acquitted of the three there were three counts of making false statements to a government agent he was acquitted of those i do have in the pharmacy for the correction and thank you for the correction my other follow up has to do with the four person who was ultimately juror number seven but at this point in the transcript he's juror number eight and i think that's because the numbers shifted by one after the juror was number five was excused is that right i'm not discrepancy i think he actually was the foreperson it's just the by the time he got to that verdict he's number seven because they shifted by one but i will confirm that i also wanted to give you a chance to respond to a statement that i found interesting it's one of the judge's findings he said she's a paralegal with several referring to during her five she's a paralegal with several years experience and given an opportunity to explain she would probably hang our hat on some point she's savvy enough to do that and i look at that finding and there's a couple places in the transcript where she she she uses the word context she wants to give the judge a context for her the no matter what statement and i don't think she's allowed to do that i mean i just don't think she's allowed to finish her sentence so that causes me concern no perhaps cause here no matter what and that context being what the jurors may or may not be discussing this lead might lead to the court does go into the court the ninety six percent of patient files involved prescribe controlled substances then the government's medical expert i believe his testimony was that this was not a legitimate medical practice this did not the court found that the government has seized an extraordinary amount of files it really went beyond the predators a search warrant that simply is not the case here and there was would have been they were your brief makes the point several times that there's overwhelming evidence against guilt as a doctor wetzler and i give you that point i think that we've clarified they convicted him on everything which is my original understanding what i'm wrong about i think is that i thought th deliberate when they came back how long did it take them to reach a verdict and it was a very short period of time is that i believe that that is correct that the jury cave was reconstituted with an alternate juror the following day and and around nine o'clock in the morning or so and then the jurors came back and reported a follow up which i did want to get i'm not sure you answered judge kristen asked a question about some of the comments that that this report made about the this particular juror being savvy she's a paralegal she's you know what she's doing if you give us your assessment of those comments i don't know that you had a chance or or directly answered that one and i i thought it was a good question from judge kristen  position to make credibility determinations about not only witnesses would jurors and especially individuals such as this would have been before the court for the better part of or over a unwillingness to deliberate with other jurors but what was it what was the basis in your view what was the basis for those comments it seems that it would be the district judges view that you're an axe to grind or had th i've agreed or are that the court is somewhat speculating that it felt that there might be some underlying problem that contributed to her unwillingness to deliberations i don't know that we can make that is i don't know that that is it exactly a concrete factual finding but it is it was evidence that unwillingness to participate in the deliberations but there can be no doubt that the court's factual made a correct factual filing did this she did refuse to deliberate with those jurors for whatever reason it may have been been offered this is one potential explanation for why she after being sent back to the other jurors completely refused to consider the evidence and discuss far into the jurors mindset is about where the jurors did on the case and in that case i believe is you're the jury  i may be incorrect about whether it was in my question i'm familiar with the case and i find it as long as that's your best authority i've got it thank you thank you yes that's correct may i proceed there ok so i'm going to try and go back and address some of the questions we talked about earlier so it's it's my position that  cannot go back and say how would this proceeding have been different if we had x juror in the batson context it's an african american church or a minority  on the trial it infects the entire proceeding and so there it can't be harmless error analysis and trying to parse out you know well let's look at how long they deliberated after that did it really matter would it have made a difference it doesn't work for harmless error and alice's much the same way bats and doesn't work for harmless error and now alice's or frankly an ineffective assistance  counsel doesn't work for harmless error analysis you can't parse out certain things and those things where you can't parse them out and go back and do some math and and makes them analysis our structural error because we can't just isolate them and say well was there still enough evidence it would require us to guess what a certain juror or a remaining group of jurors would do so i think i think you might be misunderstanding import of my questions but what about the timing but but but let's set that aside for a minute i appreciate your answer to judge schools question with a very important question is a different question what i was getting at but what's your strongest support for the your position that this is a structural  i was about there ask you the same question i know the supreme court has cautioned us a number of times abo lengthy discussion as to this kind of issue of replacing a juror being plain error and i know that doesn't get me where i'm trying to go on this but i was just you know looking at different standards and  dispute as the government indicated earlier that it's an abuse of discretion standard but that doesn't answer our question of structural error but i think that when things are are reviewable for plain error they are also different error it's like we can't really take apart the components but i don't want to talk about i don't want structural areas i'm just trying to figure out whether we've ever said that structural error applies here but i think in response to go to school question we've covered that so no but he wasn't convicted of everything and we have no way of knowing what what things i mean in some of the the transcript it says that she's stuck on a sentence and it applies to every  that's what juror number eight tells us and going and going back because i know we had this question earlier when we're talking about the initial turd that was question that is juror number eight but i noticed when i was looking at it during well the government was talking juror eight is actually states that he wrote what another juror wanted to put in the jury doubt so there's some other inside the deliberation room who instructs juror number eight by dictation to say write this note to the judge and then that's how this issue gets to the judge so and then there is this whole what the issue here is whether or not there is genuine disagreement or refusal to deliberate there is speculation on the part of the district court that the juror has an ax to grind nobody even  back for an allen charge or send them back to deliberate there was no opportunity for juror number five to clarify and provide context and she clearly stated on the record that she was willing to go back and deliberate that's why in a reasonable which i think this court would be inclined sample of you know if it were searching outside the scope of warrant tends to be a result i think that's the end of the analysis in terms of their prejudices or no prejudice if there's which is in the opening brief and the pinpoint side on that's going to be page four of twenty three dollars to that rarely case say that it is a structural air it did not your honor not not explicitly so what it said they looked at the good faith of the officers that was one of the things they looked at there but in deciding that there was none they said there because there was no justification for how they did it there and that's what led to the wholesale suppression which leads me to the nd point that i wanted to emphasize which is undercover officers had been in dr office and the supervising searching agent had been in the hallways and they were well aware of the state of the files the number of the files i mean they knew what was up in that office and this court set forth very ingenious and simple  guidelines under the under those conditions which would be simply if you know you're going to need to take every file ask the neutral magistrate for that in applying for your search warrant and if you are on scene and you're executing the search and come to learn that you may have to take every file stop and either go back to the neutral magistrate or you have to sort them right there on scene he said it would have taken ten hours you know that's we're not talking a week you're would have taken them ten hours otherwise what they did was took every single file metal medical practice and kept them for half a year so i think with this court what makes this court different from two more is we now have that quote unquote honorable precedent if you're going to seize everything and that's not there's wasn't any and all files in the medical practice more the warrant specified what kind of files are going to be taken and they and when they end and i don't think it's disputed however miniscule you know the government i'm may assign different meanings that were it's not disputed that they seized files in excess of that war it's not like there wasn't anything they could do for decades now this court has advised make sure that your warrant covers those kinds of possibilities up front if you're aware that that's going to be an issue or stop your search for a little bit i go back to the neutral magistrate and expand your warrant make sure that you have a neutral magistrate's permission to kind of confer stat you can't go to the to the client and wave born in their face and we assign whatever or who are the accuser the defendant and use his words to expand a warrant i think that's why this court has  tomorrow for this very reason i think there was something that they could have done it wouldn't have been that that onerous to go to the neutral magistrate and simply request permission to either sort offsite or take all of the files  so i would say that will conclude our human and their lives if the court has questions additional questions and once supplemental preferred bill hear from us otherwise this case is submitted