i'd like to address the batson you shoot st on behalf of gregorio get reality when the prosecution made a belated observation after the jury selection was complete and the excuse jurors had already left the court itself immediately noted that the objection had come late it created a hornet's nest of problems and it didn't allow for workable solution nevertheless the court went against its better judgment and ultimately received two jurors including one where the prosecution did not even object this was structural error and requires a new trial takes is a miss in what you say that the jury selection had been completed but the selection of alternate seddon been completed right that is correct although the original twelve jurors now and said i did is there any case law that addresses this situation that is that  the cases that i've seen and i may have missed something are ones in which the objection was raised after the trial began in effect and of course that would be too late but when the cases referred to  after jury selection you know the objections made before jury selection is completed were any of those either distinguishing were or deliberately choosing not to distinguish between selection of the st group of jurors a big part of the problem here as judge during recognized immediately the same issues that arise under any circumstance where the jurors have already been sent home where twelve from  conceded where you know time has elapsed since the since the challenges were made and suddenly council is asked to account for those challenges they apply regardless of whether the alternate superceded whether the trial has began or not here we're talking about hours afterwards and a decision that was made two days afterwards in which jurors were asked to there any was there any evidence that or any request for the judge to interrogate those recalled jurist whether they had done any research or looked at any newspapers or anything in the interim well  there was a news story which defines counsel brought to the brought to the court's attention in which it pointed out and this created a concern that defense counsel trying to understand exactly what the issue is here you suggested that there was a problem because the jurors had already been the potential jurors who later were seated had already been excused and sent away and your concern was that they may have read up on the case in the interim and what i asked you was a pretty simple question was there any evidence that they had done that and if there is none was there any is that because there was a request of the judge for near those jurors on that and it was denied you know your honor ok moving on and then you then you then you suggested that maybe there was prejudice because the female jurors were exposed to the fact that there was a batson challenge because only men had been challenged where  judge conduct the discussion of the batson challenge in front of the other members of the jury panel no your honor but but as i noted there was a story and need knowledge that there was no board on the subject but but that concern was was an act but i am just trying to say see if you're making the argument that this was simply improper and the judge had no power to do it or the judge abused his discretion if i understand that argument but if what your idea shift into saying things like the women jurors were prejudiced or the jurors who were recalled probably did research this is all speculation right there moving on to the even more procedurally improper and troubling fact of the decision to receive jury sixteen when the government expressly did not object to the challenge of  jurisprudence several courts within the circuit have made clear that the burden of persuasion at all times remains ject and party in several cases upheld the work party did not advance a batson objection to a batson objection the objections waived and that's exactly what happened here the government had time to look at there at the challenges determined that there was nothing inappropriate about juror sixteen but again going back to the court's decision to allow the including extended over several days there was a problem the judge had reached its own conclusion and it compounded the er and i'm going to rely on that even when the government did not object finally with respect to the court's decision to receive those two jurors the credibility determination itself was incorrect  was clearly erroneous with respect to juror sixteen the court did not even mention the fact that that juror had a family member with recently retired from the n y p d which is always a very common basis  that factor wasn't wasn't raised by defense counsel at the time right as a rationale for the strike let's turn your agenda item now that goes back to the original sin in this case that this all took place well after the challenges had been made and required as this mccreary has said is inherently problematic it requires everybody including the proponent of the strike to go back and  himself is a party to the challenges d and as a very real and well recognized input into the into those decisions and it just creates further problems where now you're not only asking the court and the attorneys who might be expected to have some basis that to be able articulate regarding the challenge but now having to go back and examined the defendant himself and relate to be italian tape recordings from the very beginning of this case the defense always had reason to believe that the initial wiretaps had been based on a tiny interceptions that had been made at the behest of u s law enforcement in an effort to circumvent what the men requirements in violation of material and if that was the entire investigation and everything that followed from it was a lot it's most basic level the new information raised in the anyone else connected to them in fact the circumstances and around the statements make it clear that u s officials were working closely with the iranian in the existing american investigation called newbridge which was related to another older investigation all of this was well known to the government throughout the pendency of the case and certainly warranted at least a hearing as the genesis of the investigation but was this information was not disclosed to the defense or to the district court is important to that the defense was not even aware of move on existence until after the initial thirty three motion had been filed although the pretrial rulings of the district court denying hearing arguably make a little more sense in light of ruling will barely even mentioning the existence of moroni let alone how his statements undercut the court's earlier rulings and the government's representations that contrary to this court's reasoning jibe which position that the circumstances here provide grounds to formally recognize a joint investigation exception under maturer the circumstances here do fall under the virtual agent standard more than tarkin dissipated and the rest in italy notably neither in the turow norma marker were called as witnesses in this case despite their heavy involvement presumably because it would have opened them up to cross examination regarding thank you mr white will hear from the government you've reserved some time for about all that's correct thank you thank you your honor may please the court keep adelman for the government and i was trial counsel below beginning with the reversed back and challenge and the defense's claim that the challenge was late as judge lynch noted the government raised its objection while the alternate jurors were being selected the primary jurors had not been sworn they had not even left the courthouse they were sent down stairs while the jury selection was ongoing while the alternate jury selection was ongoing and when the government raised the issue to judge theory lumps after trial had ended and there the court noted the concerns that the defense counsel might or the government might not be able to recall the reasons for the strike the court might not be able to have sufficient memory as to the demeanor of the jurors and defense counsel and therefore the challenge must be made before jury selection and and here we submit that jury selection had not ended no jury had been selected  argument that judge the jury did so improperly because the government didn't press the objection that was not raised at the time to judge theory but in any event the government did in fact object to all ten  before him to make a factual determination to which of course this court must afford great deference and therefore the government's failure to keep pressing during number sixteen doesn't deprive judge dearie of his the ability to remedy what he determined w constitutional violation indeed bad itself is a doctrine that is created to protect the rights of the juror to avoid being discriminated against and that's what judge deary did here and i also note that to the exten argued that the jury and bringing them back two days later with somehow the jury was tainted or there was some improper communication i will also confirm there was never a request to board here the jury as to the newspaper article and judge  gave a very bland reason as to why there was a switch in the jurors that was actually made at the government's request to try to avoid any suspicion as to why there was a change and this is that the glory of giglio these appendix at the re eighteen where he just says that the change was made in consultation we make our final adjustments to the jury turning briefly to the purported material violation this is the argument that was raised three times the judge deary and three times he rejected it and that's because there is no evidence that the that the the italian authorities were the agents who were virtual agents of the u s authorities there was no evidence of any direction or control and certainly no evade constitutional requirements and that is what is required by this course to precedence in ghetto and we this is the case where there was to be sure information sharing but that's appropriate and should be encouraged not  discourage in a case like this and the defense focuses a lot on the testimony at the italian trial of inspector moroni who who testified that he began to focus on the giglio based on information provided by the i but that was also the case in this court's decision in get where us and went to israel is what prompted the israeli investigation they then conducted surveillance and recording devices and then that information was then used by u s authorities just four months later to invite the defendant in the united states and that was upheld by this court and there was no hearing needed to go further in that and here all the facts and circumstances  wiretapping or vice versa there was no live monitoring of each other's wiretaps was this was going and the scope d of the investigations were different and the recession overlap to be sure and some information sharing but what is crucially missing is that there is no  agency or no direction from the u s to the italian authorities that would require any analysis or suppression of mature i believe my three minutes have elapsed your honor i'm happy to answer questions also happy to address the other issues that are raised by the defense certainly is true that at the time when they st brought to the court attention they noted that all men had been stricken but when they were express lee asked by the court to identify did not have an issue and my adversary certainly in writing and correct me if i'm wrong about this but they said they did not believe that there was any discriminatory at ten with the other jurors which would have included juror sixteen so did i sense of that point when the the judge nevertheless excused number sixteen did defense counsel object to that on the ground that the government had waived that exception of course i only came into the case at the time of the appeal but i mean were presented with a logistical nightmare that made it extraordinary difficult to bring the rule thirty three world twelve b three motion board we did the best we could but you know there were many many pages which became available to us you know at various times through the pendency of that motion  i do not speak italian my clients be limited talian and from what we were able to put together from this there was a extensive amount of actual work between these two agencies throughout the entire pendency of the investigation and prosecution it was not the kind of circumstance in which believe was mark although he never testified to can know it sure and agent maloney who was heavily involved in this case but we were never able to cross examine either of these people with respect to the nature of the italian investigation the nature of the relationship how it had come about that they got the gory oath information to begin with and decided to start recording him  without that we were ham strong the court with him strong in being able to accurately decide this information yes it's true that the court did deny this three times the st two times the court had very limited information to rely on the earth on it had a lot more information i submit there's a lot more out there but the court had more information the court unfortunately at that point without that i just do not believe that that decision accurately reflected the circumstances that really occurred here and at the very least a hearing at this point should be ordered to go back and truly evaluate the information that came from inspector moroney thank you very much your honest thank you mr white thank you both a well argued on both sides and will take the matter under it