experience may not be able to appreciate the emotional you think none of those jurors can ever be fair jurors again i'm not saying none of the jurors would ever be fair when i am saying is there's a real probability that's done even if it was just one of those jurors may not have been empty room and when we do it in public and basically it was something that might be personal embarrassment we take them into the ante room like have any of you had incidents in your personal life that might affect your ability to be fair in this case just interview and contacted had contact with the media repeatedly and when the judge asked in open court if there had been any such questions of any of the jurors about the instant if there were any problems she failed to even respond which is an example of why that media in fact the media that's provided she when the record shows that the that one of the jurors was explicitly named as a team interviewed in contacted by the media the judge never asked the jurors who were photographed to come and speak with her to see if they had any issues if their be correct based on the timing of the stories that were issued that they were speaking to people as they were fleeing the courthouse and the fact that the photographs occurred as they were they were coming out and then when the trial start this is like the jury in the morning and believe i wasn't there i ability to pay attention to be fair to be impartial they maintain their their view of defendants in criminal cases there's a number of reasons and we can only speculate because there was not a thorough examination ok and i'm still district court questioned separately would nobody asked and i think that the the reality is the court has to look at the entire circumstances in this kind of a case and i can only speculate why defense counsel didn't ask for further inquiry but the fact remains that they did not was true that the court is the one that bears the responsibility of ensuring the impartially of the jury and knowing the court knowing that those jurors were on the front page of the newspaper and perhaps and presumably reading the interview the if the judge had taken folks into chambers which occurred in one of the other cases that was cited she would have that information to know whether then her determination was reasonable my argument here today is that the judge's decision to not make any further in very market value or as you called it gray market it seemed like black market it's like selling something out of the trunk of a car and seeing it fell off the crockett you're selling stolen goods stolen goods prices  various prices wholesale from microsoft the others talk prices maybe four thousand dollars they used to price around three thousand dollars fairly typical wholesale price  seven hundred thousand dollars valuation and even if the judgments off a fair amount and it still be over five hundred thousand dollars so you get the same guideline level so i couldn't see what was really reversible  concluding the probation persons report writer concluded that the distribution price was the wholesale price but i didn't see that as having been challenged with some other distribution prices as i understand it the the the argument was whether or not it should be the price that it costs microsoft to make each one of these little software applications which just like sticks i think i understand the complication that you're both getting at which is that that defense counsel was focusing his argument on that it should either be the actual cost the six dollars and eleven cents right or on the amount of steam since the other amount is too difficult to determine but manager for the company store taking it when it was inflated microscopic microsoft testified that the company store cost of this particular software was two hundred fifty dollars and those prices were typically derived by determining ten percent of the retail value so if he was inferring that it would be twenty five and we're not here for twenty five hundred brand cast company employees we get a few to fifty and the evidence of the natural price at which the me but at the foot of the retail value is twenty five hundred dollars they're certainly not wholesaling this product for thirty one seventy nine and so it grazes the question what is their actual wholesale value of the and there's no evidence that's been reliable that was to be needed to that effect and in the software license some times are actually just some organizations will get one just with a certain number of years in life just as there's a number of ways in a number of different pricing structures that microsoft uses which wasn't really brought out very well in the sentencing he i mean sometimes crack to manufacture sells for oh a large sum and then something supersedes sort of becomes obsolete or not as attractive and liquidators re at the very back of the present report your honor and it does not have a specific page number to it but it follows if seventeen of the prisons report the cost of production was from the defense account defense counsel six dollars and eleven cents figure because it was well there was testimony from calling gracie during the trial the six dollars and eleven cents was an eternal internal accounting agendum which says this is the whole cell value we've now satisfied your objection and still is it your position that that the subject to cross examination really the foundation of personal knowledge looks to me as though it comes down to exeter page eleven o five and look at that and there are two people offering to sell the software for nine hundred forty nine ninety five ninety forty nine ninety nine new now i can think of and then it says up at the top it says list price of three thousand five hundred thirty dollars so i can think these two sellers that night forty basically nine hundred fifty dollars but regarding the internet price yes sure rob steiner testified at trial rough start or worse than small internet company in white thief strikes me as no evidence of fair market value at all because he didn't acquire title that's like a that's what the defense of i mean that's like me buy in a bottle a sixty dollars bottle of scotch for ten dollars out of the trunk  yes and then when when that eventually you're saying that after there was an objection to that based on there should be these other standards that the district what it could sell for what he received or the cost of their alternatives when there is not sufficient evidence that those are the kinds of cases that the guidelines would anticipate going outside the wholesale  evidence when there's no reliable evidence that if you can reliably determine what the whole self value is then the court i believe has authority as you say that this is hearsay and i don't understand quite what what i believe that there's no sentencing instead they're just asked to be some reasonable trustworthy mr reasonable guarantee of trustworthiness something like that and the case to say they have to and under that standard i don't see why microsoft's letter isn't evidence and this has led some of these other things your evidence for example the fact that a thief sells it for a thousand dollars to me is evidence that the wholesale value must be more  that think that it should go back for a rehearing that i think the government can show some evidence from microsoft if they're willing to come forward and open their books which they really are to to show what they're all still value and then maybe we would have something reliable to count on but in  fact we don't have any of that here in the government didn't meet its burden i would like to respond briefly your honor because you asked about the microsoft letter and the record and we received a call from the court asking for a copy of the  the letter came from the government to defense counsel i was not aware that probation submitted it to the court and so it wasn't part of the actual record until probation responded to a request that in later on when the court hans it was a part of the record and we determined that in we understood that they were going to be providing it to the