testimony up until that fourth time that you're talking about where there is a relevance i had only implicated mr goings that was making mr there was at the time the government started questioning whether or not mr cottier was involved is when i objected based on relevance and it wasn't caught here wasn't involved in this through the testimony of goings until that point and at that point is one there was an objection based on relevance before that all it was doing was granted possibly inflame the jury but it was him playing the jury against mr goings he's the one who admitted that he had trained girls in the past he's the one who admitted that it wasn't necessarily gang activity this whole rest guessed you guys it was just an attempt to inflame the jury and the judge again in an attempt probably out of desperation for not exactly known i believe made the situation much more worse by insinuating to the jury that mr cottier raped an underage girl when the testimony that had been brought in before that statement was that a group of individuals were taking turns having sex with a girl in the bushes there was no talk of force there was no talk of it was a mistrial motion made when the judge  wasn't done so far as the judge knows he had attempted to make the best of a surprising situation the defense of defendant's advantage and and saying the cure is worse than the the that's the argument you're making this morning that is correct he did nobody nobody told the judge you just made it work right you've got to you've got to correct your own out that this was a purely consensual course of conduct and didn't they find out that those things because the judge said we have to fix this problem and that happened  so in the end what this jury knew is they were told they weren't to consider that this defendant did commit bad was involved in you son charged in any criminal activity involving this woman that it's understood that the mood in the activity involved with the woman was consensual and that she was thirty years old there was a and so there's no evidence at the end when the jury was off to deliberate that anyone could rationally believe anybody had anything to do with a minor woman girl i don't i don't believe that that's that that there's no way that anybody could have that because the judge specifically stated his mindset that he believed that the jury could think that there was an underage girl that was raped i agree that there was testimony after the fact that the damage had been done thank you very well we'll give you some time for revival in light of our question ok we're hearing from the government good morning you may proceed morning your honor if pleased the court of health has now united states are going to raise the microphone i will i will try to stay close to the microphone your honor very well thank you i'll just do these  sometimes a combination of both sometimes in writing what strikes me as unusual is that somehow this factual basis statement gets in front of the jury right i mean that to me is is the somewhat baffling  position because in all the courts that i've sat and i've sat in a number of districts in our you know our circuit as a trial judge i haven't i've never seen that as a practice so is this routine in south dakota where these statements actually come into evidence it is i can't say that it's routine or that it happens all the time but it does happen at times i know that it does when a cooperative that has been anywhere else that you're  honor i believe in my experience in in the northern division in the central division of the district of south dakota i have seen it happen i believe it is perhaps more frequent in the western division and i can't say exactly statement of the witness where the witness is unavailable because they're going to assert a fifth amendment privilege and there's it it's an odd thing in it and just don't you just don't see that in my experience anywhere and your honor i guess i can't speak to that but what i can say is that part of the rationale behind it i believe is that the plea agreement is coming in and so you've got a cooperating witness often in drug cases but you have a cooperating witness and part of the effort is to show part of the effort in the rationale behind submitting them is to show that this witness has agreed to cooperate this witness has been made no promises other than that their testimony can be considered later on in the rule thirty five motion that it would come without the stipulation and that could be done your honor here in this case the documents went in and why does it have to come in before here here  it comes in and then the witness doesn't test doesn't testify because he's going to take the fifth that happened with one of them your honor the actual factual basis troubles i'm sorry that's the one that's most troublesome in this case it was the defense who also wanted to have these factual basis statements in the defense wanted to use that strategy as you pointed out judge moments ago when the defense counsel read the nation that they read the factual basis statement for both mr goings and mr steele looting them including the find by and so forth i believe i don't know if that opening paragraph actually was read i believe it started with just what was asserted to be a factual basis statement it is i'm sorry go ahead i was just going to try to find the page number where that happened your honor it was during the testimony of the defense investigator within two pages of each other in the transcript the defense investigator read both factual basis statements the factual portions of them was it received as an exhibit in tab in stan or was it received as according to him and my question is is it really true that this particular written statement then went back to the jury in the course of its deliberations i don't believe that there was any limitations put on how the jury could use them i believe that they did ok again they went in without objection from the defense and offered it right the defendant offered the third one  least the defendant affirmatively consented to the factual basis statements coming in he was asked if there was any objection no objection your honor with with regard to all three factual basis statements but the defense had a strategy they wanted to show that these two statements by steele and goings were so similar that they couldn't possibly be true and then they had a recording a recording of their investigator and counsel in the jail with mr steele where mr steele makes a comment made a comment that something about it being b s the factual basis statement or something about it it's not clear because the recording of that interview or the testimony about that interview never indicated that mr steele said this was false that is factual basis say it was fault he just called it b s there's no context for exactly why he made that  comment but again the defense wanted to use the strategy of showing that these two statements were so similar that they couldn't be true for some reason because they were signed by two different individuals again they were shown the testimony showed that these were signed and affirmed by the witnesses except with regard to mr steele that one didn't come in quite the same way because he refused to take the stand or was going to take the fifth he did not want to testify in the district court allowed him to remain off the stand but these are factual basis statements that are affirmed to be true by defense counsel i'm sorry by the defendants in each individual case where they admitted i evidence with goings it was i believe he was the second witness at trial it was early on in his testimony but still didn't testify why did it come in if goings statement didn't come in until he testified the court actually had a hearing with regard to mr steele and brought him in and the defense wanted to call him and the judge i guess the judge with a contrary to be answered the fact is the statement in evidence at that point not yet at that point as i recall it wasn't true that at that point the trial judge said that we need context so we understand what the statement is this be ason and without the entire context it doesn't mean the jury's going to be utterly baffled and and then at that point the defense say could come in that's exactly right your honor that's a good paraphrase of exactly how it happened but that was the hearing with mr steele it was outside the presence of the jury because the defense wants off the recording right that's right the defense wanted to offer the  interview to show something about what mr steele was saying was b s and so the judge said well we need this to have the the context for everything that mr steel would be talking about or what would have been with regard to the sexual encounter the charges against the defendant were aiding and abetting second degree murder and also conspiracy to commit assault both of those charges require in some way that the united states show a concert of activity joint activity on behalf of the defendants in this case the sexual encounter which was clarified as as you noted judge erickson it was clarified that it was not in a minor that it was not a rape it was just something that the men of it was something where it was being done as part of the gang i believe mr going to testified that it happened as part of part of what they did as a group it is a fairly it was overwhelming evidence of joint activity your honor i'm sorry there was that this that the sequence of events was all joint activity you didn't need everything these gangsters did before during and after this  this incident this isn't your honor it was very early in the testimony it was very early in the evidence that makes it worth but but and you know what you know what the evidence was going to come in a joint activity what bothers me about this is really is that this judge was never afforded the opportunity to do a rule for three balancing on this highly inflammatory prejudicial information right and when we even when we get to sidebar  there's a there's i mean there's a complete dropping of the ball by both lawyers nobody explains to the judge what was really going on there and what it was or how it was supposed to come in and what it was relevant to if you read the sidebar it's completely baffling and at the end judge like innocent oh i guess it's it's one to either judge patty would have called raised gestae or something and explain something it cat's out of the bag now we've got to figure out a way to fix it right and so what happened in the lawyer working here was that nobody bothered to give this judge a heads up on this piece of evidence that it really is so tangential as to have the slightest of weight and is very very and that's on you and it's on the defense lawyers these lawyers let the system down your honor i can't speak exactly to the motives behind it but i do know that the prosecutor explained to the court that it was all about the concert of activity it was about the  joint activity by these defendants it's not necessarily the depend defense burden to move eliminate to preclude everything but there was no motion in limine and to i don't know that the district judge knows every detail of everything that can come in a trial i understand your honor and i do know that you know what he's always i do that the trial judge the only people in that courtroom that knows less than through your courtroom and now you are supposed to try and pick up the pieces and and there's no way that that these lawyers didn't understand this evidence to be you know highly inflammatory so why didn't somebody bring that to the judge's  attention i agree your honor that perhaps a warning could have happened i i i don't have an explanation for why it did not happen but again it was it was something that the united states knew that it had to prove that these men were acting in concert that they were acting together this is evidence that the united states had that tended to show that it showed the aiding and abetting or that they were acting together and  plenty concerted action here you didn't need yes this was not an issue this was pure inflammatory overkill i can see in any of your honor to that i would respond that the evidence was overwhelming as it did come in the evidence of the case was overwhelming and this was something that you had the jury duty had third party witnesses who saw the joint activity matter right away and then it asked for the clarifying testimony about the person the woman involved in the sex that she was an adult and that it was consensual and so there was a clarification of it as well the district judge took care of it immediately and told the jury what it can be considered for and what it cannot be considered for and is the issue then at this point you know as we do this analysis from plain air is that is is is it capable of being fixed once it's out there isn't that really the at the end of the day the question we've got to ask their response or does it what is the primarily does it seriously affect the integrity of the process i mean that's the question we have as judges have to ask ourselves who are in charge whether it's primarily the point where it's reversible well jurors are assumed presumed to follow the instructions that are given to them and so that was the action that was taken here and so at this point we have to presume that they did follow that instruction and that it was taken care of on the record at that time thank your honour's and further apparently we have no for you plenty of evidence in the record to show the group activity in the gang beating i would argue that's not actually true i think on first glance of the transcripts it's it's possible you may actually get that and simulation but that's likely from statements made in closing argument if you really scrutinize the record the only testimony about mr cottier having the intent for group or gang beating is extremely minimal mr goings use the word we the group discuss looks i'm turned remember who was the leader or the instigator of this trip with the machetes and all that honor there's testimony that mr cottier wanted to go up there there's testimony that he may have been the leader of going up there but we're the confusion in this record is the intent there is well wait a minute the confusion think about this you walk out with a machete and sticks and it's are not going up there to to sing songs that these guys and it's arguable your honor that that the machete wasn't known to be present in the discussion of going up there it's arguable that the discussion was going to be a one on one fight and that it was mr goings with machete who he tested there's testimony that he always had machete with and that he kept it in his pants and he specifically said he keeps it as a defense to defend himself and then he chops could have been handled much better but it wasn't and in this case that information was brought to the jury i don't see how mr cottier could have a fair trial when the jury is hearing information like this completely unrelated to the acts that he was charged with and statements again in an effort to try to cure the problem just made it worse statements by judges insinuating to the jury that mr cottier raped a minor girl i mean it's it's apparently have no further questions we thank you for the argument both sides of the argument and the case is now submitted and we will take it under consideration