good morning mary please the court when he was mario valencia i at the appellate in this case the pew in this case in the middle of the jury deliberations one of the jurors handed a note to the officer who was watching over the the jury and the note said i feel as though someone in this room has poisoned or drugged either my drink or the food i brought for  lunch the court then brought him in questioned him about it and asked him why he felt someone had poisoned his food or his drink and his immediate response was because i am the odd man out i just want to say before i could see if i could reserve two minutes over legal sorry that the court admonished him before the question was asked not to think to talk about where the jury stood totally so he sort of blurted that out in response to the court i think in the very at the very least didn't the court give the general admonition that jurors are not to disclose even in their questions to the chord well if that if that if that happened it might have been juror during the jury instructions  note that you passed which raises concerns on our part would you tell us i don't want to i don't want you to discuss anything that the jury has been deliberating about well and that's what prompted my question ok i read that as saying don't talk about the deliberations tell me about your health right it says don't discuss anything the jury is deliberating about in the poor juror i guess maybe felt that he was complying with it by not actually getting into the discussions that had been adding but then the question is online eighteen why it is you feel that someone has poisoned or drug your food or drink and then he and his he can answer that question with up without telling the court where the jury stand well obviously this juror he's he wants to answer the question asli and you know what he said at the court can't help what people say i mean if just because if a juror blurt something out you tell him i don't want to hear about deliberations and they sank at that doesn't automatically make the court wrong because they don't follow the directions no no insulin nobody what we're saying here is to answer judge hellmann question is he does tell him don't tell us what you're deliberating about but this gentleman has to answer the question why he feels that his food is being poisoned how does he answer that question the only reason and the only reason he ever gives for why he feels this food is being poisoned he's just being honest because he's the odd man out well that could also mean that you're you're you're not  i mean in terms of i mean i tried cases for ten and a half years i sat in a courtroom for twenty years and i've gotten a lot of things from jurors i've never seen anyone say that they thought that they were being poisoned and that is it's pretty reasonable to think that this is a person not suffering that is suffering from not enjoying good mental health but the court doesn't make that finding your honor there's nowhere in the record that the court engages in any more sort of dialogue with them to find out if his mental health is ok well if they ask how you feels and he's got a headache you've got a stomach ache he's got this and then you know and then you put it all together that supposedly he was having mischief with this bike i  mean it that's true he tells him what he was feeling which is what prompted the note that after they went in and had some testimony read to them he says i then began to experience these symptoms and he says i was my heart started  beating fast dizziness a little bit of it was poisoned he was poisoned i've that's the you know this is not you know you're kind of trying to equate this with the situation that this is a man that came in and said i am the holdout on the jury and that the court pulled that out of them that he was the holdout on the jury and therefore people are upset with me and i'm feeling stressed that it does or not the facts of these cases this this case well that's not at all what we're trying to portray if that if that's what it seems like it's not we're saying this gentleman the reason he was feeling that he was poisoned whether right or not he felt he was being poisoned because he was the holdout on the jury i'm not saying that the court cried it out of him or try to get him to admit that but clearly the court even before he calls him in and asks him a single question already said the following this is a direct quote this is on page six this is before any questions even asked mr depew objects to them taking him off of the jury before a question is asked in the courts as i see no way that we can keep  could continue mr depew if he's accusing the other jurors of poisoning him there's just no way that he could do that i can't help but think that if the court had left this juror on and then they came back and convicted your client he would be standing up  forest insane the judge left a nut on the jury and therefore you know set aside this conviction i think your honor with all due respect i don't know what that has to do with i don't know what would happen down the road but we're dealing with the record we have i think that would have been the more serious problem actually i think a sitting district judge that would allow a juror who displayed bizarre irrational behavior  for which there was absolutely no articulable basis to remain on a jury would be a serious problem and again had the court actually said any of that and maybe and you that i mean there's a certain amount of understanding i think that every participant in the courtroom have this is about the process i mean the lawyers are officers of the court so they would know that it would be a judge's responsibility to ensure the defendant gets a fair trial and how do you get a fair trial if you have  juror who thinks for instance and martians are coming down to get them or that somebody is poisoning them for which as i said there's no articulable basis or there's a hitman in the jury that's after him i mean how do how does  does the defendant get a fair trial well again again we're dealing with the record that we have we're not talking about marcion what we know you are you're talking about somebody poisoning and what we're saying here is that no no further testing was done nothing was done  no especially no so why isn't that sufficient for the court to conclude that as a result of whatever the jurors fears are suspicion then another juror is trying to poison him he can no longer carry out his duties as it you're here's why you don't have to trust the other jurors on that your job as a juror is to listen to the evidence and draw your own conclusions but sure you could ask them if you could continue to participate  say no absolutely no i says not not especially no but the court doesn't say anything else about like look your job you don't have to trust anybody like independence case where the district court told that juror who was emotionally distressed look go in there try to deliberate i mean deliberations in that case broke down twice but the judge said go back and the judge never finds i sorry i have feelings are going to judge in this case never once said look i'm going to i'm going to dismiss you because you can't trust anybody he says i'm concerned for his health but this is a guy who had couldn't have a slight symptoms by the mantle now he doesn't say mental health and he didn't make any finding about that and what if in fact his food or something had gone bad he brought his own food and there was some sort of maybe somebody wasn't poisoning it but we put it so far out in the realm of martians that maybe something was wrong with his food and those two just don't they're not in the same ballpark ok nobody's talking martian's it was trailing this did not ask for the food google ab for analysis the court didn't do anything and when they were before the defendant to ask my question well defendant actually says in one part i can preserve my food if you wanted evidence because of course is what evidence do you have but nothing's done  psychologist or psychiatrist for a mental look at the jury for a mental evaluation suspend the deliberations until the mental evaluation came back and then have some kind of a hearing on whether the jury is mentally competent is that what you're suggesting i'm no i'm suggesting that something more than just simply saying ok you don't trust somebody and there you're out should have taken place something more along the lines of what the district courts have done and in bed as in and in other cases such as that  guy who thinks look i'm the holdout and something's wrong with my food with somebody who is mentally ill and we don't have any evidence of that we don't have any finding of that or anything else we also don't have any question into that and to say well that's so far out there as if nothing ever has happened it's inappropriate among jury members is just that i think to put blinders on things can happen and the court could have asked this guy for example it's a friday evening he could have said you only have slight symptoms why don't we just wait by now you're not even experiencing a stomach ache wait until monday why immediately say let's call a new juror and put the new juror in and the only reason was because the the court said it clearly he was concerned about the efficacy of  jury verdict ok i think we have your point thank you morning may have is the court adams like for the united states just briefly i would direct the court's attention to your thirteen where the court says well sir i'm concerned about your health and the court didn't specify necessarily whether he was concerned about the jurors mental health or his physical health the juror said that he was having physical problems he said that he had a headache stomachache he even before deliberations began during the trial he had accused people of vandalizing his bike there was there was certainly something going on with this juror and the district court acted well well within its broad discretion when it made a factual finding that that this juror was bought in the in the health to continue and it acted well within his discretion when i some properties such as like the ten six fifty eight calico pines and the nine seven seven five carmel crossing it counted nine seven seven five cornwell which  explanation can you give about all of this what are we supposed to do you know first of all i noted in my brief that the lack of objection by mr pugh puts the government in an extremely difficult position because i'm not able to bring my case agent up here with me on appeal and have make an additional record and go through and offer an explanation for how we how the the documents came together in this case what we did is we appended a bunch of documents to the sentencing memorandum we but to address your honest concern i don't want to get myself in trouble by going outside of the record but i am happy to say that in your better position is he basically tied your hands and said they're correct even though i can look at it and see certain things that i don't understand that's correct your honor and we would have happily gone through a three day sentencing if we had needed to if mr depew had asked us to prove up the last amount with and  objections we easily could have had our case agent come in and testify and prove these things and prove for example that in a lot of these frauds they they sold the house several times and they didn't use the proceeds to pay off the prior that i mean i can't i can't address this particular property in this particular case because we don't i don't want to go outside the record but that was that was a standard practice and so for mr depew the first time to come along on appeal and say well this looks on and this looks wrong and this looks  he had his chance and he can't just make things up without any evidence he can't just put his own spin on the documents and have deprived us an opportunity to prove up these losses before the district court that th process for doing that is very strictly regulated there's several rounds of objection and there's an opportunity for an evidentiary hearing but mr depew having come in and say it said other than other than my dates of the car park cars aeration the p s r is accurate at this point we just can't i don't think that he should be allowed to do that i think that would put the government in an awkward position going forward where there's no objection but we still are obligated to call to you know to to put on a bunch of evidence out of fear that on we don't make anything up on the record and the government is in an awkward position the awkward position but if you say it's right ok it's right then i remember being a trial judge and if the defendant said it was right and then the prosecutor wants to take a day to really prove it's right the court would say you're not going to waste my time the defendant says it's right and now you get to come up and say well you could take it this way you could take it that way or whatever with the issue that the court brought up two properties listed again on the same document to show a loss twice for the same problem there may be  misstatement counselor need to put its case agent on the stand there justify that you can see it there may well maybe not there may be an explanation for that as counsel has just indicated that property may have been sold and then resold and then there may be some sort of non payment who knows no i'm sorry your honor that's just not accurate the fact is is that right there it shows the date of the sale and the date of the foreclosure sale and they used the wrong calculation first of all which by not raising it no that's playing their standard of review and that's why we're able to raise it is up to the courts and we're saying no to fight their property listed twice the manifest injustice where the where the client stipulates or admit that the p s r computations are accurate well i would just point out your honor that this guy was a guy who was representing himself and i know that's a whole nother ballgame i understand that but the fact is that when he was in prison he mentioned the fact that he all of his stuff that he had from the first trial was taken away from him that he didn't have it anymore and so then there was a statement made by councils and the court ordered them to turn over things i don't even know if mr depew had the one thousand pages and the l chart that the government relied on to show what the dollar amount was but it's incumbent upon the defense whether rich is representing himself or represented by a competent lawyer to raise that issue with the court and say i'm not in a position to respond because i don't have the underlying doc and i understand that but it's also incumbent upon the government to to play fair and what i mean by that is to put in their memo that the calculation how you determine lost some out is by taking the principal amount of the loan and then subtracting the amount that the lender gets from the foreclosure sale and that's how you end up with the loss but then turning around and in their chart presenting to the court that the loss amount is you take the sales price of the property and then subtract the foreclosure is not playing fair and then to be able to say well those are our mistakes we're listing properties twice on there so we're double counting and listing properties that weren't involved in there and we're not providing you with the loan documentation so you can see the principal amount is not playing fair how that evidence found in the thousand pages the evidence is absolutely found that they represent they used the sales price instead of the principle amount after putting in their memo that the right formula is a print but they had a witness who was there at sentencing who would have been prepared to address all these questions and in the absence of an objection there was no reason to call that i have to be i swear i don't know if they had a case agent there or not but never once in the record if you take a look at the says you they say can we put our case it would be very unusual coun experience for the case agent not to be there for sentencing after a major fraud trial well i don't know if that's the case or not but never did they say well we're not going to risk of having you there thank you very much cases argued is submitted we'll get any answers