for admitting evidence of sentencing consequences were for improper purposes so the district court should have denied that and perhaps said denied without prejudice to letting you present a new argument but he didn't but the alternative and the other point that i want to emphasize is that even if evidence of sentencing consequences never comes in even if the defendant decides not to propose it the district court excludes it for some reason i'm sorry for it or if the district court excludes it for some reason which we would think would be proper the defendant's arguments for no other cation go be on to the evidence of sentencing consequences yes are that the case law seems to allow a little wiggle room for jury nullification the case law contemplates that there may be some situations where the sentence can come or the outcome can come in and so how does that fit in with the in title meant to mandamus is it mean other words it's so clear that we ought to issue you are i think the there is wiggle room on sentencing consequences this court has said that there might theoretically be possible circumstances where a judge could allow the introduction of evidence related dissonance in consequences however it's also made clear that that evidence can't come into support during all of the cation and i disagree with the premise of your hour of your point question namely that there is wiggle room on allowing arguments for an elephant cation well i don't know that that there is wiggle room on allowing it but there is wiggle room in that it happens there are cases where where where it happens usually it's in a different context i don't know that there's a case where a court says you can do it correct and i don't think you want a lot of this on yourself because at least i can speak for my colleagues but it's just very we've seen these  very difficult because you putting me in a very difficult position with all due respect your honor i'm not sure that all of the facts above are before this court i certainly know they're not before the district court and so we didn't present them to this court because they're not in the record yet we are pretrial and we are talking about a defendant who carried on a year long relationship with a fourteen to fifteen year old girl and created child pornography as a result of that hands on contact with a fourteen year old girl we have not presented to the district court and the district court hasn't heard from this young girl hasn't heard from her parents hasn't heard from her guardian hasn't seen the evidence hasn't heard about the defendant's history and characteristics and some of the aggravating factors surrounding this relationship we haven't put those in the record i'm not going to discuss them here but i can tell you he does not know all of it your honor what i have just said to you is what judge underhill know us because i am we were trying not to present this evidence a lot of it isn't relevant to the elements of the offense but it is certainly information that we would present to the or force we didn't want to suggest to the jury that the victim had not participated in this willingly notwithstanding her absence of consent in the in terms of the video to can't there's no suggestion that this was forcible and we have never said that no direct and but in terms of the other facts surrounding the of the case what we would hope is that the district judge would wait until he gets all of the evidence and till he hears the evidence at sentencing and here's a presentation at sentencing before determining that this case involving hands on contact with a fourteen year old girl how do you respond you respond to the argument and the notion that a jury in our system has some right to do justice show mercy in a situation where there's a mandatory minimum if it's not told that there is a m torment how can it really you know for film it's it's it's it's duty and moral well your honor i think this court and thomas said that while it may have the ability to do that it is something that we should prevent when we can we the jury certainly can right because juries return general verdicts and we don't inquire about the basis and so they can decide but when a judge has the ability to prevent a jury from violating their oaths then the judge should do that because this court in thomas and the supreme court have said the jury nullification while it may happen is not something that we should encourage it leads down a a path to lawlessness because in some cases while we might think that jur nullification is good in some cases we might have different ideas about which cases those are going to be good and and is this court and thomas pointed out sometimes during all the cation can have bad consequences because once you under more of the jury from the law and the well your honor i would hope that he would wait until he heard the evidence i don't think that at this point given the constitutional role of the judiciary and the constitutional role of the executive branch in bringing charges and congress quite frankly in setting the penalties if congress determined that a particular offense required a mandatory minimum penalty it is up to the executive to make decisions and we are firmly behind this prosecution we do not feel it is an overreach in feel that congress intended to reach conduct involving hands on contact with a minor that resulted in the creation of child pornography you seem to be suggesting in your brief that judge under shading his evidentiary rulings because of his dislike of the case is that accurate i don't think we suggested that he was shading his evidence the reason jesse that there's no basis for this evidence of the  mandatory minimums coming in none has been articulated other than nullification and if that's the case this should be a no brainer is what you're saying right i do believe that i also believe that he expressed his views very forcefully below that this case calls occasion and entered in order to that effect on the docket to allow the defendant to argue is it ethical for a judge to be making evidence free rulings based on his or her subjective views of the value of the case well your honor i don't want to pile on judicial ethics that's not my specialty i do know that you know we expect and hope judges to follow the law and we believe that these rulings are rania's and that the district court is misguided and should have excluded this evidence and we fully acknowledge that the defendant might on some an as yet expounded theory offer some reason to enter to introduce sentencing consequences i haven't heard it yet he has never offered any theory that has anything beyond jury nullification and also regardless of whether that evidence comes in the district court's order allows defense counsel to argue for nullification on whatever theory he wants that this is an overreach that congress didn't intend to touch this conduct that the federal case is a stalking horse for the state case all of those arguments are permissible under the court's order regardless of whether sentencing consequences evidence comes thank you or hear from  me to consider tendering my law license over the outrage of it all there is a lot to be said and i share the government's frustration in what is and is not on the record at this point but what is abundantly clear is that judge underhill has not given me a blanket to do a blanket pass to do whatever i want in that jury what do you plan to do in your opening you're going to open an elevation we don't customarily give opening statements and i don't intend to address it as i understand the ruling i sought for forms of relief i  it on the topic which the judge denied i sought a charge which the judge denied i filed a motion in limine for permission to put on sentencing consequences which the judge did not grant but said if i can lay the appropriate foundation he'll let it in i want to come back to you because usually that's what motion is linear for you lay the foundation or you proffer a foundation i didn't want to dislodge rules and here he said well you don't have to tell me maybe of something will come to you but but what's the that's not what he said well  but i want to get to the fourth one what was the fourth one you said the fourth is that permission to argue notification that one was granted right what he said was if i offer that evidence and if i choose to make that argument i can he will not stand in the way  the minute warner specifically says the motion is granted to the extent it seeks permission to argue for jury nullification he's giving you permission to argue jury nullification it may or may not be an empty argument to handing on the evidence  traditional i beg your pardon isn't that line of arguments where not in any case i've read i don't know how we got from sparse to that assertion spark in the context of a capital  maritime capital case where an ally always sought in the court held no there's not sufficient grounds it's the role of the jury to decide you can't have juries disregard things in thomas in pub on cruise and other issues arose but the circuit has never address right to argue as he refused she sees fit and the government has acknowledged as much in its brief so i do intend to argue nullification and there will be an evidentiary foundation it's not before you i don't want to but you will learn the what the jerk not identifiable however a ring is identifiable that ring was seized pursuant to a state warrant associated with the defendant her testimony is required to identify that on a web page she posted or the government's press release in this and about the mandatory minimum wage that he faces this after having sought to extort him for half the income from his business and so it seeking to break up his marriage i intend to get into that if i get that if i get that then i'll be able to argue ladies and gentlemen of the jury you heard of it are just she posted facebook document of the government's the press release press release of the comments and writes that's fourth the mandatory minimum right and so i mean my view i don't want to have to you know i don't want to use rick practice here is a discovery vehicle for the government but since they're saying i can't do it there it is and try to stop me there that her interest in the outcome is always is always relevant is never collateral and i intend to cross examine her on that if i get that foundation then i will be able to argue if the judge permits me but enjoyment you've heard distribution and transportation of child pornography maybe i don't know if it's a matter of historic knowledge that we can attribute to the jury but let's face some facts here the age of consent in the united states until the eighteen eighties was as low as nine in maryland and not as high as sixteen in any of the states it's not going to get you anywhere you go you're arguing that the age of consent should be nine i'm not sure where you go with that i'll tell you where i'm going the law has changed this was not a rape  this was this was still she was incapable of giving consent of the it was not forcible and this was not what congress had in your it and this isn't a defense of the underlying state case and this is a distribution and production of pornography he got the phone via interstate commerce and thank you your honor may please the court john cleese and counsel for judge underhill these arguments place in stark relief why judge underhill asked to appear through counsel as amicus let me start with a procedural point i suggest that this is a much more interesting argument if the government were right about what happened below that is if judge underhill had in fact ruled the minute order of the minute orders conceded that's what the minute order says at the time in the courtroom the judge made it clear that it was conditional on him receiving into evidence and judge underhill wrote a letter to this court making it crystal clear he had not yet decided to allow evidence of mandatory minimums into the case but there's a difference between mandatory minimums and all of acacia understood he said this is i think from the transcript on october twenty nin that he was simply allowing the defense to argue as he chooses to argue that with a minute and three seems to suggest that you can argue nullification and immediately after that your honor and then later that afternoon he made it clear that he would only allow the argument about nullification if he allowed into evidence at the mandatory minimum the fact that sentencing consequences of a conviction and in his letter to this court he said the government mistakenly asserts that i have ruled the evidence of the mandatory minimum will be admitted several times i emphasize that if the evidence were made what is the need to make that ruling it seems to me that this is a ruling that's being deferred in order to induce the government to change its charging policies now suggest to you that what he needs is precisely the context that the government has told you we don't have but i mean defense counsel indicated the intention is to argue nullification that's the basis for allowing this in to allow him to argue nullification and judge andrew has made it clear that that will only happen if he receives evidence of the mandatory minimums and he has explicitly stated that he hasn't decided if that will occur but the evidence of the mandatory minimum is being offered so that counsel can argue nullification well that's that's not what your record reflects the record basis then for offering the mandatory minimums the judge has indicated and if you've heard arguments of counsel and we don't really have a full record that it might come in for example to impeach one of the government government witnesses government agents my come into it impeach the alleged complainant if indeed she testifies as the government says she will what if we were to determine that in fact the record shows that it's being offered so he for purposes of notification well if you determine that and you disagree i know you know no government then this is not one of the extreme and drastic extraordinary cases that would warrant mandamus relief and here's why judge judge parker has pointed out that with some foundation the district judge is stunned by the fifteen mandatory minimum and stunned by the application of this statute to this conduct maybe his being stoned is understandable but if we let this go what about future cases what if there's another case where a judge a star without proper postured in a way where the where the merits of the mandamus relief ought to be addressed i'll suggest to you it's not but we're past that this is a case where judge underhill has a has charted a course if this happens that is consistent with every decision of this court and the supreme court he knows he will not be a brake on this government overreaching that he's perceived he knows from the decisions of this court including thomas and the supreme court cases cited in our brief that the jury has the power to act as a brake on the government overreaching but no right and that's why he intends to do exactly all understand that but the question i think is  if it's to the discretion of the district judge what are the factors that lead a district judge to allow it in some cases and not in others to be just the cases that the judge doesn't like you allow notifications and for the ones that he's ok with no notification i've already identified one judge and that is a deployment of a very harsh mandatory minimum to a factor guidelines of a judge thinks these guidelines are too high is that a basis for allowing all of a case or judge just doesn't really like that we have criminalized certain drugs that that judge allows in all of occasions and the judge down the hall doesn't allow an argument from all of well i'm perfectly willing to concede that if you change the underlying facts of the case it might change the outcome but the question is whether testing we basically just say all of it is a jury gets to decide whether or not this is a case that should have been brought whether it's a just a case i don't so it's all or nothing it seems to be what the arguments are but you're saying it's that there is room for discretion here and i'm not yes avon's that discretion and i assume i can answer notwithstanding the yes yes what i'm saying is this undeveloped record concededly undeveloped we don't know how the case will progress you should not preclude the possibility that there might be a legitimate exercise of discretion on judge under hill's part to allow counsel judge underhill counsel to argue for nullification judge underhill is going to do everything he's been told to do he's going to tell the jury it can't know the five it must follow the law it has to ignore the punishments he's going to he's looking for a way i think this is what we should expect from district judges he sees what he thinks is an and is an injustice and he's thinking of charting a course consistent with every controlling precedent and consistent with the fact that juries have this power and the habit for this precise purpose used to be saying that the jury's going to be allowed to be told explicitly about this power in those cases where the judge thinks there's an injustice is that you just said i'm suggesting that among the cases in which the judge would have discretion to allow  so he's not going to allow counsel to do it in cases where he doesn't think there's an injustice right now he's going to exercise discretion judges will in the exercise discretion district judges do that all the time this i'll suggest to you is if there's if there's a case in which a judge has the discretion to permit counsel to argue for jury nullification and it's a judgment call because the judge is going to give instructions that says the jury can't do what he ask consistent with precedent of this court and the supreme court but if there's a case if i'm sorry johnson if there is a case in which such discretion is properly exercised i'll suggest to you this is it but but how do we review when it isn't properly exercised in other words you're saying we got to wait until this trial is underway we got to wait until basically the jury's in the box and half the trial is in the can with that point we want him coming running to us with a manda whether the judge abused his discretion allowing an elevation argument to go to the jury well one way and this goes back to the procedural point the one you're going to get mandamus relief if the ruling below for closes the relief you see here that hasn't happened what could easily happen is judge underhill could decide i'm not allowing evidence of mandatory minimums therefore you can argue mr patterson you join notification then you're going to get to review this if there's a conviction on the direct appeal of this case what if the judge allows nullification to be argued and there's an acquittal then they have no relief at all right so you're saying they would have to run up here in the middle of trial or a no i'm not saying that judge it happens all the time you  a district judge sometimes they move in lemony for a conscious avoidance charge and the judge says no sometimes they move unlimited for an order saying you can't cross my on the fact that another judge decided that he was not credible when another case judge says no i'm going to allow that cross they think they might get an acquittal but that doesn't entitle them to come running here for mandamus relief mandamus relief is limited to extreme drastic situations involving extraordinary cases not every time the government gets a pretrial ruling or a mid trial ruling which goes against them which might produce an acquittal it's just not that the the relief is not available in those circumstances thank you we