for six is answer of no join the pulling of the jury our position on that issue is simply put in a supplemental authority that we filed last week that that notes that  audio recordings are relied on by courts of appeals and in this case it's across the country really this case the audio recording is clear the juror says no and this court can rely on that the the no answer doesn't come out of nowhere there was a the jury here had been deliberating for a day and a half nearly for a case that was tried for only a day and a half it had been sending out notes durin deliberations indicating that it was at a deadlock with jurors ask you how are we review the decision of the district court with regard to correcting the transcript for make sure that it's accurately high bar and could we say that judge middlebrooks determination was plainly unreasonable or that he intentionally falsified record in this case after making credibility evaluations you conducted falsified the record or that is the solution was plainly unreasonable that's a pretty high standard that you have to overcome in the let's stay with plain unreasonable notice which we have not discussed intentional  honors allow me before going into the standard of review i believe this record is so strong that we can meet the plain on reasonable standard if that's the standard that your honors feel is applicable here are you disputing that that's the controlling standard as i  and we need to step back for a second and recognize that there are very very few cases that address this the case judge wilson as you just noted is the fifth circuit in one nine hundred seventy one that most of the people in this courtroom were not born in hundred seventy one the so i mean they get to the art of the matter your your your argument is that the judge's decision is plainly unreasonable you're going to do you want to apply yes also by the record your argument is that his decision was plainly on reason that was correct when you add up the audio recording which is very clear contemporaneous notes of the court reporter which are very clear and she even made a note to herself again and again that the juror had answered  h the and the fact is i just noted that the no answer doesn't come out of the blue it comes after a deadlocked jury so it's a fact the court reporter appears to be the only person in the entire courtroom that heard to know that the judge who was clearly listening to every juror or guesses from everyone the courtroom deputy heard jess's there are prosecutors two prosecutors at the table one jury is being polled everybody is listening carefully to the jury yet no one reacted no one heard it other than the court reporter right well the court reporter is the person who was charged with listening carefully she was sitting most closely to the jury that's her that's her job that she's focused on the judge's job to right now the judge to actually come to think of it your honor the judge really in that  case is waiting for the parties to react i mean the judge is not in charge in that situation that it's t as the defense counsel who did hear the no on the recording said you know that the fence counsel become you don't think a district judge has an obligation to blow the whistle as the jury is being polled before a person comes in and says we've got a unanimous verdict here is the verdict form the judge turns to the courtroom deputy and says read the verdict and poll the jury juror number one is that your verdict yes two yes three yes and you come to number five and number five says no that's not my verdict you don't think the federal district judge has an obligation at that point to say or do something like saying that the jury verdict has to be unanimous in the absence of unanimity i'm going to send you back into the jury room to continue to deliberate wouldn't that be the clear obligation of the judge i haven't seen a case that says that so i can't answer the question and i will say this for some reason the judge apparently missed it because it's very clear in the recording it's very clear in the in the stands your answer is in the absence of control in case that's not the obligation of the federal judge well i don't want to think about a little judge of course the way you put it the answer is temptingly yes but at the same time it's the defense counsel who typically and the adversary process reacts to events that happen in the courtroom and makes motions and objections so i am not accept that the system is adversarial but that does not the new the judge of his own obligation to ensure that that might explain a lawyer might be asleep at the switch i don't know but it seems to me if a jury says no it's not my verdict the judge is not in a position to accept that verdict at that time regardless of what the other seven jurors say thereafter and regardless of what the other the first four jurors said at the outset you're very persuasive judge so let's let's i'll agree with you but and unfortunately that might exist is a lot to argue about but i don't know that i would i fight over that principle a great and that might explain why judge middlebrooks here knowing that one could say he had an obligation to do something is is frankly bending over backwards in terms of his projecting his his preference frankly for what happened to what the record shows happened and the way he gets problem for you as i see it  question the jurors on any aspect of their recollection with it so that is not a fight at the to say that they were credible is not even possible because well there was no cross examination and adding to the fact that it is as we take it th judge does not have the authority to simply recall jurors a year after a verdict and start questioning about what happened here and what happened there during the trial i don't have a couple minutes left i actually think your strongest issue the first issue and see the evidence because i spent shell casing is not ammunition you haven't argued that you want to devote some time in that argument sure the the problem if you look at the plain language of the statute it's let's it looks at ammunition that's designed for use in a firearm and a spent shell casing can not can not be used in a firearm it's from the treasury department's bureau of alcohol tobacco and firearms who got on the witness stand and said it showcase the shell casing is qualifies as the ammunition within the meaning of the within the meaning of the statute what do we do with that i don't think an expert's testimony on the law should influence is actually permitted to influence a judge's reading of a statute you read the statute you determine the law that's that's the role of appellate courts you didn't object to the jury instruction that instructed the jury that a spent casing was a munition right that's correct your honor but the the  argument on appeal is not an objection to a jury instruction it's an objection to the government's theory throughout including what judge wilson was just saying a moment ago having an expert testified spent shell casing constitutes ammuni the evidence from a series of other pieces of the evidence including the statement by the defendant that he sprayed the place from the car from the fact that the bullet appeared to have been shot from within the car through the car outside the car from the nine one one call there were two of them wasn't there sufficient extrinsic evidence to permit a jury to infer beyond a reasonable doubt the possession of ammunition independent of whether you say a spent casing falls within or without the m that of the statute let me give two answers that the first i see over my time but that's right you take your time you're answering our questions the first one is the legal one it's that if you look at the shots case which is a very important case which we submitted supplemental authority citing written in shots there was also plenty of evidence that the defendant had shot said property i'm sorry a license issued by alabama is not property i'll be brief judge at story the the your court said no that's incorrect an alabama license is not property therefore fraud was not proven because property is an essential element of fraud so the government came back along the lines judge marcus that you were just saying saying well what we have plenty of evidence in the record that this defendant stole money and this court said yeah but your theory was that he stole property not money so we can't as an appellate court go back and look through the record and find sufficient evidence you present your argument that there was insufficient evidence to establish that he possessed the ammunition independent of the spend cartridges or is your argument the no there was enough to take that to the jury but they didn't argue it or is it your argument that they didn't properly pleaded in the indictment i'm not sure i have the thrust in iraq indictment was five indictment charge possession of ammunition that we can all agree on the problem was that if say those spent shell casings had been in my client's car not as a result of his firing a weapon but they were just in the car they'd been there before they got there or somewhere somehow else the jury was never asked to make the critical determination that the government now says in it its theory did my client fire that live ammunition and that is what's missing from this case we don't have that critical conclusion to validate this conviction good morning good morning may it please the court counsel she and inch on behalf of the united states with me a counsel table is assistant united states attorney my you should darrow she was a trial prosecutor on this matter unless the court directs otherwise all begin discussing the sufficiency of the evidence that's what judge wilson indicated was the key issue for him and the government has a has a strong argument on this as it was the theory that the government presented to the jury simply that notice of supplemental authority the indictment charged possession of ammunition by a person who had been convicted of a felony and this immunization affected interstate and foreign commerce in the case cited by defendant the shots case the indictment specifically charged business places or property and that's why the appellate court said hey you can't change your theory now because you said in the indictment x y and z business licenses are property here in our indictment we charge that wilcher possessed ammunition and what the united states did with the indictment did not reference spent cartridges correct your honor and so when we came into court the trial prosecutor stood up she said ladies and gentlemen what we have here is a video we have a video showing will wilcher he's in a convenience store he's waving around in a k forty seven what he does with that a k forty seven is he tells the people in the store hey tell those guys from the projects that he was looking for them he was here if they want to find me what if and what do we have next we have him getting into a great car and the surveillance video shows this the government presented testimony that was the first thing they presented they presented testimony of that surveillance video will be water gets into the car he tucks the firearm behind his back two minutes later two police officers in two different locations testify that they heard shots fired there in the area there in liberty city they respond within a couple minutes when they get to the scene where the shot spotter had indicated the shots had come from a bystander comes up a bystander said pee wee just shot a pork and beans for no reason and there's testimony that he was the only name that will be what your head used and he had identified himself as pee wee in the security video in the surveillance video so here we have we have a bystander who saying if you we just shot up the pork and beans for no reason the officers looked at me area they said ok what evidence do we have that will show was shooting and they find spent shell  there not from a nine millimeter they're not from a forty five they're from an a k forty seven and there was testimony about that on the record so here we have the defendant on a video holding in a cave where seven we have shots fired and we have a shooter there was a shoot out willy wilcher wasn't that shooter and the defense wouldn't have focused so hard on trying to show the jury that walter wasn't the shooter if they didn't see the evidence as showing that he had fired the weapon which  casing he was guilty of the crime because there was sufficient evidence that he possessed ammunition because he ha instructions specifically directing the jury's attention to the shell casing there are multiple theories on which it of and they can be convicted and i think that the reason for that is to give the jury the whole question to you in closing argument to the jury did the prosecutor argue in words or substance the defendant possessed and munition he couldn't do it because he was a convicted felon and we know that he possessed it because among other things he told us that he sprayed the place with his firearm we know it because in fact there were bullet holes that suggested that the shots were fired from within the vehicle parked outside we know it because there was nine one one testimony that shots had been fired from that car where he was seen later running and we know it because in fact there were spent casings in the car was that argued in words of substance or was it argued simply as spent shells therefore you possessed ammunition it was argued in substance your honor and i can direct the court to some of those lines in the transcript we have the government saying in opening closed on docket entry fifty eight each one thirty four the government plays the nine one one call and at the end of the nine one one call the prosecutor says shooting in a case that the ammunition was possessed by the defendant understand twenty ninth two thousand and fifteen and then again when the government steps up for its rebuttal argument the first thing the prosecutor says is on december twenty ninth two thousand and fifteen a bully wrecked havoc on the liberty square project the bully got into a rented vehicle and drove down requirement that we must prove under nine twenty two g that the firearm or ammunition traveled in interstate commerce and we had testimony about that especially agent rebus from the bureau of alcohol tobacco firearms and explosives and on the stand he testified a person cannot be charged federally with possessing a firearm if there was no analysis done on the gun and where the gun was manufactured that's a documentary fifty eight page thirteen here the government didn't recover the firearm hypothetical and he's got a key chain and he's got a split showcasing his key chain you convict him of action of ammunition by convicted felon there's a difference between convict and would convict i think in that case that wouldn't have any case a charge it's not like here where we have somebody who's walking with an a k forty seven at three forty in the afternoon where there's kids running around where you know it's a community right prebuttal bought a  casing in a novelty store and you don't know that he possessed ammunition right that's not your case but how would that make how could you prove beyond a reasonable doubt that the mere possession of the spent casing alone attached to the the key chain indicated that he had possessed ammunition rates so so in that case it would be a tough issue is a standard plainly on a reasonable standard as as judge wilson yourself noted this is binding precedent in the eleventh circuit it's a circuit case from one nine hundred seventy one and there have been no other cases since then to call that into do you hear during number six say no you don't hear that on the audiotape i hear the same thing judge middlebrooks hears which is that the audio is is indecipherable it's not a yes it's not a no and here we have extensive evidence what do you hear when you  relying upon for their clear and convincing evidence standard what's interesting about that case and what what the government likes about that case is in that use what the court did was they called back the jurors to correct the record and the judge ruled based upon the testimony of the a year or two later with all that pressure did you say yes or did you say no in that what the critical determination is what the juror said at the trial at the time of the verdict and that the critical determination is what the jurors said at the time of the trial and again i think there's extensive evidence that the jurors said yes and and also when they came back judge middlebrooks made credibility findings and those credibility findings are entitled to a high amount of deference from this court even deference but in that the rope i mean that's why you have an audio recording so on review you can go back and listen to it yourself or buy go back and listen to it he says no unreasonable what i think is also interesting about the audio is that you don't hear an audible reaction this is a case where the defendant was facing a significant amount of time in prison where there had been an allen charge where there had been a note saying we have a juror who doesn't who doesn't want to talk to us she doesn't want to judge anybody this is the type of case where maybe you fall asleep during another case but this is a case where everybody in the courtroom is thinking ok what decision did they mist in spin theory didn't require to record what the judge had said to juror number twelve the judge had clearly going at the i'm looking at the transcript itself and it says no one there for jur eleventh circuit case from two thousand is instructive here in that case the transcript recorded the clerk only asking five of the six jurors if they agreed with the verdict the court read the entire transcript and concluded that the corp order simply messed up that she failed to record the pole of the six tour just as in this case the judge instructed the jurors at their verdict had to be unanimous when the jurors returned from deliberations the foreperson indicated that case of the the court didn't have an audio to go back and listen to there is nothing in the decision indicating they have an audio i'm not sure whether they did or they didn't just from the text of the decision it doesn't mention an audio in reading it it appeared more that the court reconstructed it based on the court's memory and based  on the fact that nobody reacted but to but here we have the additional evidence of the video of the audio and the the ability to listen to it and determine what the audio says right correct but i would make a distinction between this case in the continue my you may answer the question sure thank you so in that case a police officer terminated a high speed chase by applying his rear bumper to the to the heiresses vehicle the vehicle crashed and harris was rendered a quadriplegic but there in that case harrison said i was driving in a calm controlled manner and a video showed what the court described as a hollywood style car chase with the most frightening sort placing people at risk of serious injury and the court wrote that when parties told two different stories one of which is blatantly contradicted by the record so that no reasonable jury could believe it that can't be relied upon it purposes of a summary judgment in your it's a different situation we have an audio that judg and we have extensive evidence from the jurors testimony from the reaction of all the parties during the court this isn't the case where what one side is saying this is a call clear driving and another side the video showing a hollywood style car chase cohen let me ask you a question about one of the oddities in this case which are undoubtedly triggered the whole inquiry in the first place is that the court reporter's transcript is obviously wrong and the court reporter herself admits that the transcript is wrong because the original scrounger transcript among other things said juror number seven answered the question no when told by the courtroom deputy is this your verdict the transcript says he said no the transcript also doesn't reflect transcript that says juror number seven the four person said no you've got the order you know which unambiguous lead to everyone's account as juror number seven saying yes you have defense counsel having raised nothing at all about the matter at the time that this unfolded wasn't there a sound basis for the court under these circumstances to conduct some kind to be sure that you had a unanimous verdict yes and i agreed with your honor that because a juror said no the district court had an obligation to follow up on that that's what rule thirty one ok so to conduct the hearing was ok tell me what if anything the judge did eroni asli in the conduct of the hearing judge we have a litany of things in our i i take it the essential argument is you didn't get to cross examine the two jurors yet that the the the most significant from that would be certainly will and yes not being able to cross examine i think was there something else that was out that the jurors as a significant call back in the first place and and yeah i mean those were mean he could have conducted the hearing but he should not have called the jury's back to conduct the hearing that's right your honor to do so he should have relied on the testimony of the lawyers act the courtroom deputy a court reporter the already you know and his own recollection is on recollection as we say in the brief problematic because then he starts projecting his own recollection right up and i think you're going to find you're on the losing end of that argument given the case law the jury had come back after an hour or six to come back and said my answer was no would you still think it was improper to improper to call the jurors under any circumstances which you which you didn't initially object to and then i know you said that in further research you found it problematic but really isn't it isn't the jurors recollection pretty important i don't think so as judge wilson was saying what matters is what the juror said at that point in time there are many reasons over the course of a year why a juror an entire year by the way would would revisit that no answer and then the question becomes why are we as a system going to drag a juror back and start questioning you know the reasons why the jury might have changed her mind her motivations or contacts or visited contacts with a prosecutor with the judge with her friends rethinking the whole case maybe coming to the conclusion that she hadn't come to the conclusion then that in fact mr welch or maybe was guilty but that that point she thought he was not guilty she didn't agree with the verdict so there are many many good reasons not to recall jurors it's a civic right but the funny thing about it is when the court conducted a telephone conference regarding the wisdom and calling a juror to testify at the hearing the one who did your honor you're right i did not object at that point but the judge expressed misgivings and when i followed up on the research i found that those misgivings were well founded there's a lot of law on why you don't call jurors back to the courtroom allow me to to to to address this plainly on reasonable standard that we've been discussing because as judge howard noted the case that this is an unusual case is a case where you have an audio recording to listen to or you have stenographic notes where we had the context of the of the deliberations notes being sent out adamant not guilty where we have a hearing and lawyers are testifying i am magine i'm not taking a guess here that this from your standpoint your honour's is an unusual case and so this is not the this is not a case where the big difference here is we have an eviden ary hearing and which did not take place in in mori and we have the legal issue of did the judge correctly give the presumption he that the statute requires seven fifty three b to the no answer of a jury so we have a mix question of fact in law to which typically this court applies de novo review so if it's the plainly unreasonable issue we've i feel we meet that standard readily here but if i if you want to has doubts it's unclear whether that standard applies very few cases on this and none involving these particular circumstances or anything close to these particular circumstances you describe the question is whether the trial judge gave the presumption of the cross of correctness to the answer of no generally yes that but isn't the actual question whether that he gave the presumption of correction correctness to juror number six saying yes and juror number seven saying no i mean you're it's not just that a juror said no that the transcript says juror six said yes and that's actually what you're trying to change right and it doesn't isn't that yes entitle to a presumption of correctness the fact that there was an error in the transcript that it was during number six who said no in titles the defendant to a mistrial because it means the verdict is not unanimous so that's the issue that we feel is before with this court is there any doubt that the presumption of correctness is a rebuttable presumption rather than an eerie but a blueprint it's rebuttable but i think given the strong evidence here which we've which your honour's of been asking about that there was a juror who answered no that that presumption is not rebutted that it is that the court reporter got it right that a juror answered no and her notes are right that it was during number six it's unfortunate that got inverted in the in the transcript but her notes are correct she's correct through throughout except at the very last point where a juror gets mis numbered thanks very much counsel we appreciate your efforts and we note mr khan that you court appointed and we appreciate you taking on the representation figuratively of your client will proceed to the