there to attend his daughter's wedding stood beneath a tree when a limb fell crushing his leg and foot that limb came from a diseased and rotting tree there was no warning there was no notice seven surgeries later were here before this court because sandals is claiming they don't do business in connecticut sandals advertises in connecticut on their airways t v they publish ads in magazines and newspapers all delivered to my client's home they have dedicated specialized agents who are trained by sandals to obtain the title of specialized sandals agent they are given promotional materials by sandals even a car wrap so they can drive around connecticut promoting sandals interests yet we're here because the district court found and required an element that simply is not required the district court found that minimum contacts were insufficient to hail sandals into connecticut because the minimum contacts in connecticut did not cause this injury that is an element that is simply not required by the supreme court all that we need to show is that sandals contacts with the forum state were related to the basis of the lawsuit how can one say that a company such as sandals who has dedicated sales representatives on the ground in connecticut in stamford in greenwich who openly solicit connecticut residents to come visit their resorts all over the world how can we not say that that conduct is related to what gave rise here your client erect and he was not actually standing at the sandals resort where he was injured he was staying at his sandals we had a sandals but yes this one that's correct your honor he was saying saying at a different sandals resort in st lucia but the fact that he was simply staying at a different resort doesn't in the analysis the advertising in the contacts that were being put forward by sandals in connecticut were all related to those properties in st lucia how can sandal say they didn't expect to be brought into a connecticut court to defend a lawsuit brought by a connecticut resident when they were spending these efforts to solicit these residents to visit their resorts all over the world including st lucia you're suggest world no i'm not your honor what i am what i am specifically saying is connecticut would have jurisdiction for actions brought by connecticut residents which is an important distinction to be made because the defendants rely upon the supreme court decision in bristol myers but that dealt with nonresidents scott hurley he is a resident of connecticut so what i'm proposing your honor is that connecticut would have jurisdiction for lawsuits brought by connecticut residents against st lucia for torts that specific personal use under specific jurisdiction yes your honor and the nd prong of that analysis your honor to allow your concerns about opening up a floodgate to litigation is the conduct that gives rise to the action needs to be related to what the advertising is and what the is here they're advertising the resorts the lawsuit here or arises out of the negligence in properly maintaining that resort it's not the case that your honor is decided involving dealer renzo involving somebody that had no connection to the contacts this is a situation in which the very advertising has to do with the resort if mr hurley he was at it tiki bar three miles from the resort and slipped and fell we wouldn't be here this actually happened on the resort this is a result of their failure to maintain the resort the very same resort they have or ties in on the internet through their specialized travel agents and for sandals to say it's fundamentally unfair for them to be brought into connecticut court because they simply didn't anticipate being brought into connecticut kind of belies common sense when their entire corporate structure is designed to avoid liability in connecticut they have agents upon agents upon agents and they sit there and they maintain we simply didn't know what wedding venue is that and sandals resort don't have jurisdiction no  it's just because the daughter chose to have her wedding sandals that he has a cause matching and sandals no your honor it's because sandals chose to advertise in connecticut to connecticut residents and a connecticut resident was on sandals property it doesn't have to be specifically to the plaintiff in fact this court has disregarded that analysis it's not based on the contacts with the plaintiff it's based on the contacts with the foreign state and here is the contacts in connecticut are substantial the contacts in connecticut are thorough and specifically designed to do what occurred here solicit residents bristol myers squibb specifically rejected the causal relationship analysis justice sotomayor specifically stated in her dissent that the court chooses not to take this as far as a bu for analysis that was rejected that's what bristol myers tried to get the court to adopt that was rejected it needs to be related to and here's why because the whole basis of this analysis is premised on fundamental fairness and if it's not related to the contacts in the form state it's understandable that would be an reasonable to bring in the fenton into a state that they have no contact with but when the contacts are related to the basis of the lawsuit how can you say it's fundamentally unfair how can you say it's unforeseeable how can you say sandals didn't know that the people that they solicit in connecticut might bring them home to cannot it to answer for their negligence  law and the evidence in the case and reaches the correct conclusion judge maher began by saying ok under a due process personal jurisdiction analysis was a long arm statute requirement was a due process  avoided the next problem of analyzing the connecticut statute he went directly to due process he then went to the due process and to the due process consideration i'm not going to consider the nd element reasonable inquiry i'm going to consider the st element minimum contacts because that's the specific issue in this case he considered the minimum context question under the minimum context question the st issue was the general jurisdiction the is the at the time of oral argument and the transcript is not in your record but it's even in the record below but at the time of the oral argument plaintiffs conceded there was no general jurisdiction so when specific steps to set weekly then to the issue of the specific and that was what the case turned on now pardon me exactly so that's where we're at right now so let's talk just briefly about the facts there is evidence  sandals which was uncontested uncontroverted in which the talk is a hotel it does not solicit it does not do anything sri is a management company it does not solicit it does not do anything neither of these companies leader let talk or or sri had anything to do with the state of connecticut neither maintains office years they don't solicit business here they don't have a target connecticut here they don't have any contact t c it's world wide it's a panamanian corporation it's a standalone company sandals has nothing to do with u t c u t c entered into a contract with you the i in american corporation and this is all in the record uncon i does the promotion and travel and things of that nature u p i runs the website you the i has contacts with it with the travel agents u p i does everything in american corporation in connecticut not sri not let talk there is no record evidence of that let me suggest the evidence of my television set and the connecticut resident i see an awful lot of ads for precisely this look body sound of resorts and that's not significant just not part of the record but that's part of the record absolutely an agency relationship there were no specific facts it was conclusory allegation and that's what he found and that's what it shows and the record reef completely supports that so he felt that under an abuse of discretion standard there was no need for discovery here on that question right judge i don't think it's required in this case honestly don't think it was required i'm just suggesting that it's just such strong and vivid views on the minor it appears that you would have no concern  for your objective in this your court judge i don't believe that under an abuse of discretion standard and under the requirements which they have to show a prime aphasia case specific there's also another question judge which you're going to have to consider in this agency issue and that is under under specific jurisdiction is agency even a plausible theory you know in gambler they suggested very strongly they suggested very strongly in a general jurisdiction setting that that agency should not be considered and in this court in the case of sonera holdings which is cited in our brief said the nd circuit observer the damage to the supreme court expressed doubts as to the usefulness  agency analysis that focuses on the form states affiliates importance to the defendant other than on whether the philip is so dominated and i will tell the court that there had been other decisions nationwide hold and that is a matter of law in post one there is no longer an agency relationship theory an agency relationship theory that you could even plead so there's a legal hurdle right there that they have to be able to establish that that agency theory is viable we also cited other law in our that said that a defendant's relationship with the rd party standing alone is insufficient basis rigorous stiction that's us bank and that spare celebrations of agency just like in this case if there were any at all or exercise of control based upon the realities of the relationship that was the case which we cited in our brief here there is no reality use of relationship because there is no relationship these are separate standalone companies that have cigarettes we don't even have that here we have separate corporations to insulate itself from liability which is one of the concerns of one of the panel members that there's nothing wrong with that that's the law and they're entitled to do it here that's exactly what happened so from a factual standpoint they have not established they have not established any type of agency let alone put it from of from a from a and from a legal standpoint there is good law questioning whether even an agency relationship in a specific personal jurisdiction can lie and i believe it cannot lie so for both factually and legal reasons it's my position and my client's position that the court should reject that particular contention you know judge u t c and you are not subs are separate companies talk is a management company it is a hotel owner s or is a management company they have nothing to do with these ads they cannot be hailed into this court and in view and that is the issue of specific jurisdiction you have asked that you have to view the defendant's conduct and protect the defendant under due process standards here this judge looked at the law he looked at the bristol myers and the walton case and said there has to be a direct connection to the cause of action he looked at two cases or three from your court charles schwab and bank holding versus b o way they said the same thing and he looked at a case of this course decided just a year ago deal or renzo which is very factually similar as a sexual assault on in and they've made the same allegation website advertising it was rejected by this court and it was a decision so in some u t c and u v are separate there is no evidence and there is no specific allegations of any type of an agency relationship agency should not even apply in personal jurisdiction and the fact is the court concluded that this tree fell on him in a distant far away island is the exact standard under which rest will meyers your own you separate counsel i am separate counsel from miami florida southern district of florida i practiced down for forty years and because the the the fitzpatrick lawyer got sick before i left so i mean i have been around the block and i have i've been great belief and you know trial court discretion as you can probably tell from the argument and i thought this judge wrote a good order and went right to the point thank whose is it the case that the district court had oral argument earlier band bending his claims against the friend sandals resorts international that's correct and through due diligence we realised that one of them were simply a for lack of a better word a company offshore located in jamaica that is a bit of a shell corporation we don't believe they have any affiliation with this particular court did not in any way find that specific jurisdiction failed to be met due to lack of minimum contacts and to due process that case was specifically found that the new york long arm statute did not apply it was not based on d process taking a look at unique vacations and their relationship with sandals i indulge the court the next time perhaps your honor you see a connecticut t v ad jump on the website because if you take a look at the website this corporation has no affiliation with sandals use words such as we are the world wide representative of sandals international our chairman our c e o and i our family of resorts resubmit outtakes from the website representations made on the website about the c e o about the relationship between these resorts we believe that a opportunity to conduct jurisdictional discovery would at least give us an opportunity to demonstrate to the lower court the exercising control that sandals had over these companies  well our client did allege that the tickets were purchased through jet blue that offered sandals packages to my client at specific sandals resorts including the sandals resort where the accident happened we asked talks about agency between the defendants and sandals in the i don't believe in the complaint there was an allegation of agency was not the problem well your honor i believe that the allegations that were brought out in our opposition through testimony that sandals through their agency induced connecticut residents to travel to st lucia was certainly enough to at least provide us with the opportunity minimum contacts we believe the lower court added an element that the supreme court never required simply being only one at this point that you would be satisfied with the opportunity for jurisdictional discovery we'd be thrilled with that opportunity your hon we'd be even more thrilled if a court would find sufficient jurisdiction so we could proceed with discovery on this case but to summarily dismiss our opportunity to at least investigate the agency relationship between these two companies and sandals we believe is an abuse of discretion before coming into open court this morning we had the opportunity to have the next party hearing in there and as part of that hearing mr stern and his coll i would like to address two core issues in the case one of which is the clearly erroneous failure of the district court to consider the whole record on the issue of suggestive identification and its omission of salient facts that were reduced in that record of suggestive identification and indeed his consideration according to his opinion of matters outside the record which were not introduced during the week hearing and to the failure of the court to apply to i preclusion of defense cross examination of the fingerprint expert its own rule which it invoked in favor of the prosecution that when the jury would struggle  y with its biases and preconceptions on a matter it should be allowed to hear about other cases that it dress that bias and that preconception the st of these issues is the one which as i understand it the court will address in closed session  so i will address the nd one st and then we'll take the break as i understand the procedure that st issue is about whether or not the court balanced its rule its own rule that it created in this case and i'm using its words when the jury would struggle enormously quote unquote with its preconceptions about whether or not a clean cut kid could become a terrorist an issue which as i understand it wasn't even raised in the case then the government would be allowed to bring in an expert to testify about other cases to tell the jury that in fact essentially a clean cut kid could become a terrorist hence permitted the testimony of an expert named the dino to testify that he interviewed thirty people thirty other terrorists and he concluded that  anybody essentially could be a terrorist but when it came to the fingerprint request during the examination of the print thing a print expert for the prosecution that the defense wanted to question the expert about the now famous mayfield incident and the report by the f b i which involved the f b i s conclusion for many many months that two people two different people had the same thing or print when the defense asked to bring and that report to the attention of the jury through cross examination of the fingerprint expert given the bias in the preconceptions that juries have that fingerprint evidence is infallible that it's a science that there's absolute certainty about it notwithstanding that preconception and that bias and the fact that the jury would struggle enormously to overcome that the corporate clouded testimony about his interviews with thirty terrorists and the mayfield report deal with another case and other cases and this was the reason the court said it was precluding examination using the mayfield report that it's another case it's going to distract a jury with other cases well with with the d no he didn't say i interviewed this person and i found x y and z and then i talked to this other person and these were her characteristics he didn't go into he just said there is no stereotype of who becomes a terrorist  can be anybody and what you wanted to do is not just introduce that there could be a mistake with fingerprints if you got in on cross but in that particular case using different agents they had made a mistake and it would have required some background into those individual characteristics of what happened in that case so it is are those differences to asians or how would you harmonize just a general opinion no stereotype of  terrorist as opposed to going into the specifics of a case of talking about what happened there what was wrong there i think your honor that the what was supposedly a no profile testimony the dino became a profile testimony in that now the court's question could a clean cut kid as apparently mr for it looked like to the jury  become a terrorist the answer which is is according to our profiles a clean cut kid can be a terrorist so indeed these other cases inform this profile which was presented to the jury don't worry about that this defendant could be a terrorist as much of the other evidence in the case was about could be could be this could be that could be his hair could be his hand writing no definite opinions but a lot of could be here with the mayfield report which to water which the f b i itself in the report said is a watershed case the st time that two people mayfield and the actual bomber indeed madrid bombing case shared at least ten points of characteristics at least the experts thought so for many many months until finally the f b i with droom the mayfield identification but for many many months contrary to everything that juries have heard since since their childhoods my childhood i think the courts as well i think a prince don't lie well here were two people with the same fingerprints according to the f b i and according to the spanish authorities in fact your honour's the f b i met with the spanish authorities and were not convinced at st that their conclusion was wrong it was important absolutely important for the jury to know this if that was going to be any substance to cross examination of a fingerprint expert in fact the perceptions are so strong that this court in the case of far haim said that it was plausible for a prosecutor to use a batson challenge against a juror who watched a lot of television forensic science shows it was ok to excuse that juror because he was going to expect infallibility infallible scientific testimony in the case th the american association for the advancement of science has repeatedly said that the public perception has been shaped by decades of overstatement by fingerprint experts most people think fingerprints are infallible the f b i itself said that fingerprints are the gold standard of forensic science absolute certainty now what about the significance of that the government cites the case of united states against michel martin in the th circuit a case in which there was a full blown attempt by the defense in that case to make a daubert finding that fingerprints were not science and shouldn't be admitted as such the conclusion in the case was well most factors don't disfavor the admission of fingerprints however in that case which was handed down before the mayfield report there were to address all of the mistakes and the problems that the mayfield report brought up but that the preclusion was about the mayfield report words itself there's another one in the th circuit called bonds from two thousand and nineteen actually but they haven't had that right court didn't have the advantage of the american association for the advancement of sciences recent report and seventeen based on mayfield concluding finally fingerprints are not science plain and simple that there is no scientific basis for concluding that two people can't please the court my name is richard tucker i'm an assistant united states attorney in the eastern district of new york i also represented the government at trial in this matter i think the court has as anticipated my two responses on these two tenuously related issues dealing st with the fingerprint evidence i think it's important to note just from the outset that the mayfield case which as your honor noted involved different f b i personnel and very different facts including and this is the point i want to make in that particular instance in the mayfield case there is a single fingerprint match and in this instance the government a deuce the trial evidence that there were eighteen fingerprint matches that is fingerprints from think the argument itself illustrated it takes a substantial amount of time to even explain the facts of the mayfield case and in a case like this where the defendant's conduct spanned continence and more than almost a decade judge cohen correctly ruled that allowing this frolic into a completely unrelated case was going to run the risk of potentially confusing the jury and  complicated facts before it now that said judge kogan was careful to permit defense counsel to pursue the substantive lines of cross examination that i think mr stern has articulated here today and and the theme throughout much of the defense in this case was one of subjectivity that theme was the route the cross examination of the fingerprint evidence and continued through the closing argument the idea that mistakes could happen was a licit and the fingerprint expert did not contest that that there was an element of subjectivity in her process she explained her process in detail and she acknowledged that mistakes could happen there's absolutely no basis to overturn judge kogan is ruling that precluded defense counsel from pursuing this totally unrelated constellation of facts involving different people with a significantly smaller quantity of evidence just because dr videos testimony was raised i'd like to address that briefly and your honor again anticipated my points dr videos testimony the vast majority of it related to questions about the history of al qaeda the structure of al leadership the location of al qaeda training facilities and the means by which individuals traveled to those facilities the discussion about whether there was a specific profile for an individual who could radicalize was at the very conclusion of his direct examination was really not a core part of what his testimony involved and also as your own identified and just so everyone is clear there was absolutely no discussion of other terrorists that dr vino had interview specifically by names or the nature of their conduct and judge kogan again was extremely careful both with respect to dr video and with respect to the testimony of our other witnesses to make certain that we stayed focused as much as we could on the facts involving this case again to avoid undue delay and complicating what is already a factually rigorous case so i think the analogy fails here i do not believe that the idea of allowing this one bit of testimony from fingerprint expert was able to testify without challenge that fingerprint experts and fingerprint examination is no that fingerprint examiners make mistakes but that but she also presented herself and five times it was referred to she referred to herself as a forensic scientist five times in the record she introduced herself she was questioned as a forensic scientist when mayfield and its progeny say there's no science to it because there is no evidence that in fact two people don't share the same fingerprints she was able to say that she may decide by side comparison of mayfield's print with the latent prints when in fact that very thing that mayfield report criticized the f b i for doing it's a confirmation bias when the suspects print is compared to the weight and she was able to say that the  ten point comparison is a legitimate basis when mayfield said ten point comparison in both cases didn't sufficiently identify the prints she was able to say that no two people have the same print which may feel the itself said it's extraordinarily rare but it happened in this case that as far as our analysis two people did have the same print at least until they finally said no research has shown she said that that this is accurate and reliable evidence but the national association the american association they all say there's no reason to believe that at all but we were precluded from bringing that to the jury she was able to say that herc findings was an identification she made an identification that to frag friction ridge prince originated from the same source that should not be said says the the advance of the american association for the advancement of science all of these things work precluded because we couldn't show the very report from which this extraordinary as the f b i itself said extraordinary evidence watershed evidence of how fingerprints are not scientific and the jury shouldn't expect them to be infallible thank you very much mr now and i want the record briefly and i will return to open court as quickly as a pro was to take on please this court and how kentucky set forth the requirements the court needs the findings the court must make to properly seal a district court i presume those rules would apply here your honor will tell me if i'm presuming that and this is a joint motion and i think we're in agreement that all of the factors in question are part of the record that we are in agreement that they had been met but if you want to restate them for the argument we're delighted to hear i appreciate that your honor and i think i can do so succinctly the court must find that there is a substantial probability that the public argument would prejudice a compelling interest of the government the parties or a rd party that's the factual point that i want to make in our sealed in the tucker affidavit which is part of the court sealed appendix that page is sealed five and we identify that individuals in similar circumstances as the witness in the deposition have been in danger and their family members have been in danger in the past if the fact of their cooperation  made known i also would just make a note for the record that certain techniques employed here are potentially sensitive and there is a compelling u s government interest to avoid those becoming public i believe that there is no reasonable alternative to closure in this matter given the dynamic nature or oral argument and the importance that appellant's counsel have the ability to answer your honor's questions i believe that we have devised a narrowly tailored approach to this in as much as we've had some oral argument in open court already and i would submit that the prejudice is overriding of the qualified st amendment right to access so i think if your honor agrees with those propositions of fact then i think the record is more than very much where the court is in recess until we reconvene as quickly as possible thank you