investigative agent that was compounded by misconduct by the prosecutor who sought to cover that agent and the only way this kind of misconduct doesn't happen again is accountability and a criminal defense lawyer i hear things like accountability and deterren all the time and yet here we are there me doing this conduct and there's no accountability the agent in this case took the constitution into his own hands he sees an exciting new case on a sports web site in time to use a trial in particular i would add you know any one case from the d c circuit where the d c circuit has been st a district court guilty verdict on the grounds of brady when the brady material was in the hands of the defense at least by the time the defense began its case in chief i think your honor and thank you for that question i believe the court tried valiantly to remedy this trial during the brady evidence and there's two reasons why was insufficient one brady remedy cannot really align government witness and will be it was very specific to where and how this case came out we received the brady the judge quote a mini trial during the trial and during that many trial the agent says the fight outside the presence of the jury and didn't do will realize he'd been caught and by the time he cuts hard for the jury he going to go up and i can't there's nothing as a defense lawyer that i could do to remedy that he said for example from the jury he got consent from a supervisor to conduct surveillance with that made it look more official that had never been given to me i was blindsided the entire time i did the best i could with it but that's not the stance in a lot of these are all these ar that the fence began its no your honor i don't and the judge noted noted that which said that prosecutor was lucky that i got it when i got it if i got in a week later two weeks later be in a different posture and i fully acknowledge that but i believe your honor this is bigger than brady the person as this is a criminal auditors or even about know when he produced the documents in this case we have the th amendment being violated so i think this goes beyond brady and that's the point that i really want to stress which is if the agent sits in a child custody hearing know that even if he had disclosed that he was a government agent that  the government or or the public or anybody could get a transcript of it so there's no like expectation that she has that whatever she says can't be used against her why why would we have any expectation of that well you're absolutely right and there's an irony to that if you know if the government never went they could have easily gotten a transcript and they could have used whatever she said to her best good purposes it's the moment they need to go get insert himself in the days if he had never showed up she would have been just as comfortable and would have said this exact same thing and the government could of obtain the transcript and you would have been where you are i mean it seems to me that if there is any any real misconduct here it's when you know he goes to luncheon you know does the other stuff but i'm just not understanding what constitutional right which witnesses to call and he knew what her defense was to the sitting duck for years the same defense he used then i used later in the trial and it was all out there because he knew about it so yes he and the government and didn't that they need to rivet if use of the testimony that's very clear take it it's it's not your position that the standard there are two standard instructions as far as i can tell that in some sens anti deadlock they are under two dollars of the red book and roman three is the one that's called the thomas instruction there's also a roman one which is called the initial instruction i take it it's not your position that it would be reversible error to give the initial instruction because it's materially different from what's called the thomas instruction the st deadlock notice early in the trial he gives the initial instruction and the juror then the jury deliberates more nd deadlocking have and he gives the thomas instruction is that reversible error for giving the same kind of instruction twice well and that's the big big debate the government said they could not the judge could not given it's a delicate dance and what is your position on that i believe you cannot get more than one it's a deadlock instruction and frankly this court to give us a firm ruling that you cannot do it repetition of suppose suppose we disagree and as to my hypothetical what is it about flipping the order this case is odd because the district court starts with a full blown thomas instruction the st time and then uses the thomas light initial instruction on the rd instruction what why is it five or six times but never said who would you on his condition so he starts with holder on his convictions but does not repeat it which makes it an ethical back to thomas itself which says we have to look to the functional effect on the jury we had a holdout juror clearly voting for acquittal we know that the court gave there and this is not a trick question i'll tell you right now the district the d c circuit said that this additional instruction was not an additional thomas charge it's not the same as sayin thomas twice are saying thomas light and leaving out something that's got to be in thomas so here is an additional instruction now instruct you in response to your question that each juror is entitled to his or her opinion each should however exchange views with his or her fellow jurors that is the very purpose of jury deliberations to discuss and consider the evidence to consider to listen to the arguments of the fellow jurists present your individual views to consult with one another and to reach an agreement based solely and wholly on the evidence if you can do so without violence to your own individual judgment that scene there is similar to what  conviction so i agree it's a bit of wordsmiths cannot go back to my point that it's hard to find you know where to put everything because there's so many different types of cases the word smithing to individual judges and litigate is very challenging when i believe that he did not stress you know holding your own convictions elected and he did say open mind you know this over and over and over again i agree with you on that it's just to me seems like such an almost a truism of a thing for a judge to tell the jury i mean their job is to keep an open mind you might as well just said gee a job four times you know but now it seems almost like the now suggestion just doesn't strike me as  should that's the problem because we know with one year we know what the hold out we don't know at the time which one was which way he was going or she would go that's why it's wrong because it's targeting a juror with coercive language you don't mind that not also telling that you're hey if you still feel that way you should keep  are there any other questions and thanks we'll hear from the government thank you may please the court peter smith on behalf of the united states like to take the arguments in the order that they were addressed this morning by the court starting with appellants brady argument if sr court did not abuse its discretion in and there's no indication that any additional or better impeachment would entitle apology to a leave under the brady standard which is essentially that you would achieve a different outcome at trial a pallant this morning pyre in the oral argument in the district court and in his opening brief apology made this th amendment argument aspect of materiality he said he was raising a brazen she said she was raising brady claim and that an aspect of why the brady alleged right brady violation was material was that she either might not of testified or testimony might have been different if she had known about agent during the lunch break and the district court made a factual finding that a palance testimony at the child custody hearing had been induced by government or altered by the government remedy or this misconduct i'm dismissing the case i could just continue the case to give the fence some time to prepare based on the new information they weren't i could not do a continuance and just kind of make them play mean is dismissing indictment the government would be able to appeal and i think that that would be an abuse of discretion on these facts there needs to be in order to have some sort of due process violation and the dismiss lied to federal court when he was asked what did you talk about at the lunch meeting and you know that's outrageous stop a future valentini from doing all of this again if at the end of the day it didn't the government was not analyzed for it well the government was penalize for it through t courts admonitions through the lengthy brady hearing through the fact that a defense counsel was able to raise all of this before the jury which didn't factor analyze the government's case and i would add the full on the flip end of this is that prosecutors were directing the investigation the prosecutor explained to the district court during the brady hearing why there really wasn't any derivative use of information that agent valjean he had gleaned during the custody hearing was the government never used any statement or never introduced at trial any statement that apology made during the hearing and the prosecutor under viber th in the afternoon transcript of pages sixty to sixty five explaining to the district court why the government had used any of this information to direct its investigation she explained that they had debriefed on time a fan she was the whistleblower before the child custody hearing that the the prosecutors had already done a lot of legwork on the case and already had a game plan for the investigation and so i would urge the court to look at that transcript reference and then i would also say that the or you know it is an interesting hypothetical but appellant simply hasn't raised that claim that would warrant it has never asked for its missile the indictment and therefore this cur court can award relief that appellant is never asked for if there are other questions about the that casts a theocrat you both i'm ready to talk about the instructions three different instructions that are in the general ballpark of thomas you have the st one st one looks like a thomas instruction but there's a lot of improvising there's some improvising about how important a unanimous verdict is to the not just to the parties in the community but the whole country the  thomas like instruction seems like the comments are pretty pointed in the way they are directed to one juror the court hopes that this juror will come around and the rd instruction which looks a little bit look it looks a little bit like a thomas lite instruction that initial instruction from the redbook but it too has a fair amount of improvising with keep an open mind repeated over and over and that might be a truism in the abstract but in the context of these jury notes it sure seems like it's an attempt to bully the the one juror when you put all of that together why isn't that coercive i guess i have a somewhat different responses  to the court's got to view the context of all of these different instructions and everything that's happening in the district court appellant has initially agreed to the giving of the thomas instruction so that's part of the contact went on in the jury would have understood that that was different from the actual legal instruction they would have recognized that difference and they would recognize that as the  urged them to to keep going there are of course two other factual aspects this court's got to consider the jury went back and continued to deliberate for quite a while eventually issued partial verdicts and half or two hours that was very early and judge the district court what did that and felt that the instructions were appropriate at that time because the jury had come back so quickly and such a complicated case and then i guess the final response i would give to your question is that the instructions the three different instructions were not coercive because the core and this goes to the other language not to goes to a collins point about not surrendering your jurors honest convictions so the court several times reminded the jurors to keep an open mind but it also said that the jurors needed to discuss their views indicating that the juror who was refusing to deliberate had a view that was important and that it need that during needed to discuss and the other jurors needed to discuss with the district court also in its final instruction again reminded the jurors that they have to express their own views and that's just judge walker indicated earlier referring to the black ace that is very similar to what the court did in black so when you add all those facts together you have the context where appellant has asked for the times instruction initially you have a note that seems process oriented you have a note where the jurors refusing to follow the court's instructions and it's not liberating earlier you're adding to is not deliberating the note says the juror has made up his mind yes and the district court sort of discussed bat on the st day before giving the thomas instruction and about his the just a part of you about what exactly that meant and just a court found among other things that it indicated that the jury juror wasn't deliberating but if you're sure if the district court made that finding why did the district court give an anti deadlock instruction instead of the part one instruction  admonishment to just you know deliberate instruction yet he said you can't have it both ways and say well this was only an indication that juror wasn't deliberating when the district court essentially made a finding that there was a deadlock rolls there you're not supposed to give the thomas instruction until you found of this court review of the just reports decision is where the opponent is asking for the court to give the thomson struction he's agreeing with that and defense counsel saying it's important to come out strong so that's sort of the evaluation of the district court's decision it district court also thought that the thomas instruction basically reflected or summarized all the points the district court wanted to make at that time  so he did explain the really his reasons for giving that instruction at that point and again pollan agreed with that and therefore that argument timing the instructions in the giving of the thomas instruction initially that is raving's court should also says that a juror has his mind made up and in then there's more instructions that are given where we are deadlocked on two counts so it's reasonable to infer that with respect to each of those three notes  the same juror has made up his mind and is deadlocked and if you give an instruction that says keep an open mind after the juror has said after it's been told to the court three times that this juror has made up his mind how can that be construed reasonably as anything other than an instruction that you are to basically consider changing your mind which is kind of the essential aspect of an anti deadlock instruction which has to be balanced with language that says but don't give up your on this conviction i think i have two responses your honor in in the notes there was also i mean they appreciate honest point about the jurors mind made up but the juror during it also said that the jurors mind was made up based and i'm paraphrasing now regard essentially regardless of the facts and that indicates to me that there was a process element to that i don't first know is he already has that this is in the transcript the st you know it's page twenty five he already has his mind made up and he is not basing his decision on the fact you have a response to that even if it was a deadlock even if the court this court construed that as a deadlock the situation isn't that different from dorsey cited in the government's brief where dorsey says that in that case a juror was singled out that the court had learned essentially the split among the jurors through a jury poll and then instructed the jury to go back into liberate and this court said that the  instruction instruction was not coercive and explained why and i thought so i think that given the constellation of facts in this case dorsey is instructive and i would in addition to what i said earlier i would add a couple of  factual points about what happened here the government's i mean the court's instructions to the jury didn't telegraph in outcome the court told the jury to keep an open mind but it did also t who his or her mind made up to discuss their view with the others and for the others to listen to that juror's point of view and that is similar to what happened or in black and other from our circuit and you cite the mcdonald case from the nd circuit the court bases of its assessment or its ruling or its holding that an instruction  just says keep an open mind and keep deliberating isn't coercive it bases that or one on saying that in context  instruction isn't asking anyone to change their vote to to actually reexamine their views it's just you know telling them that you know the liberation is hard keypad that it cetera you know the essence of an anti deadlock instruction that's  either an explicit statement or an implication that somebody who has made up their mind in isn't budging should consider reexamining their views so my question to you is when the court is told three times that a juror has made up his mind that said explicitly twice  in the rd time it said that the jury is deadlocked on at least two counts which in effect means the same thing in you basically give an instruction targeting that deadlocked juror telling him to keep an open mind putting aside what we've said in thomas and it's progeny about you're supposed to you know not depart from the  why should we interpret that as tantamount to the jerk being told that the juror would reasonably believe that he was being told you should consider changing your mind i guess for several reasons your honor st of all the court's instructions did have this other aspect of not only keeping an open mind but discussing your views and expressing your own point of view which acknowledge s that that juror the juror who was the subject of the note had an important perspective to share i'd also note that this court's low base area decision which is cited and government's brief indicates that reminding the jury of an instruction as opposed to rereading instruction is less coercive and of course each time the just or part gave one of these instructions or three different struction as you pointed out your honor the jury continued to deliberate showing that the jerk who's mind was made up did didn't immediately you know that the interactions weren't unduly coercive because the jury didn't immediately turn their view around the jury continued to deliberate the jury rendered partial verdict after a couple of days and on the rd rd or th day of deliberations finally reached a unanimous verdict on all of the counts so those jurors saw in a note saying that they had a partial verdict in a court responded with an instruction to keep an open mind but the court did not of course have the language in there about not surrendering surrendering honest convictions in the court also didn't reference the earlier instructions or remind the jurors of his earlier instructions including the thomas instruction that he had given earlier that had the language about not surrendering on this convictions right and i agree with that your honor and i think that our answer is that the  instruction on that day the rd day had a component that was similar to thomas that said that that juror must express their own point of view and that is i believe that in the november th transcript  thomas and the holding of several cases after thomas that says that but language of thomas is what's supposed to be given and then anything else is presumptively course event reversible yeah i think the court you know this case is distinguishable from that precedent like yarbrough where this court said that the just report shouldn't make any substantive departure from thomas and the  gave the thomas instruction verbatim the court then later referred back to the thompson struction but didn't really read it and then the final attraction that we just discussed that i would say is not a substantive departure from time it's consistent with it's similar to it on the language isn't exactly the same but the court was giving instruction that included both aspects keeping an open mind but also expressing each juror's point of view with each word listening to what they had to say expressing it telling the jurors that you should feel free to use to speak your point of view to others nothing like saying don't surrender your own convictions soley to reach a verdict or soley because other jurors disagree i think the point is the same your honor and i think the jury would have understood it how is the point the same that you have a right to speak out that's not the saying as a point that you have a right to maintain your convictions well i think i think i think it does not change your vote if if it does violence to you're on this conviction to do so right because the court wouldn't i mean what i'm saying is that the district court wouldn't be telling the jurors to express their point of view if their point if you didn't have the didn't see or if it weren't important that's all i'm saying so that the court is recognizing both aspects keep an open mind and deliberate with the others but also express your point of view which has value so you get both aspects there so i don't think it's a substantive or substantial departure from thomas i think it's consistent with thomas so that would be my answer to the court's question and but as to the overall question of whether you know reversal is warranted i would go back to my answer together unduly course they did not coerce that individual juror to change their settled convictions or their on his convictions judge katz us judge walker do you have any further questions for the government  all right thank you i'll let you make any closing statement tonight and in conclusion coming around is exactly what he's trying to tell me do without giving to not surrender is on his conviction to then the final instruction after the proper verdict was was it was announced he said keep an open mind three times but did not say hold  your honor and you want to end by saying that if this is the way the system works we're all in trouble you know they said they were going to give is about getting a talking to like when my kid you know still do still do things like that's not the response here