having received a communication from this court suggesting that i might want to take a look at best evidence rule in relation to the issue raised with reference to taps i'd like to start there for me the issue at hand is whether or not the federal wiretap act which sets up in many ways a unique integrity process can be avoided can be obviated simply by making more than one recording an original p gets and by the government using those tapes that are not within the integrity process as the exclusive source of everything presented at trial and i correct that this is normally done or  incorrectness this was a unique circumstance where copy was use when i can tell you in looking at the case law it would appear to be unusual in looking at denton for example which is either my brief but what about in terms of how issue whether that's a failing on my part or not i don't know but i can tell you is the first time i saw that issue i think the issue here is one of whether the materials using court have to be derived from the ceiling process and my position is not that the only thing that can be used as a sealed original my position is that what is using court must be sourced from the sealed original and it is there anything in the text anything you can find actually that says even the one circuit court opinion that seems to go against me accepts that that the economy exists between sections wanted to pertain to a yes or both between sections one and two pertaining to investigation and section three on the other hand pertaining to that which is used in a court  excludes the use of a car for us your honor i guess the way i would address that point is this i think the congress and i say this respectfully i think that the congress had better things to do if they were simply satisfied with the best evidence rule th hundred sixty eight you very specifically articulate these protections which in fact were based optimally upon your supreme court case law the point that was made in the intent that was served by what they did here was on the one hand to recognize that these materials affect privacy and on the other hand to recognize that they're both compelling evidence and that they're extremely fragile your argument really arises out of the implication that you get by reading due for his reporting is simpler than twenty five eighteen of a record and you've got to fall within the authorized and the procedural protections for the use of the recording and then you use use and you read back into the word duplicate and you can for that means that the sealed with a tape has to be used in court in order to comply with twenty five seven teams of corporations twenty five eighty eight but that's not really what it says that the inference that you're draw from this as well your honor i would i would i would respectfully differ and i would differ because the conclusion of twenty five eighteen a which comes after has been a specific reference to how you use materials in relation to subsections one into a twenty key word there that is it goes to the fact that the seal is necessary if you are going to use the contents but it does not necessarily mean that you have to use the sealed contains the transcript of the sealed one must be the source of many copies that are used in court the sealed one must be very good i'm here if you're saying you have to make a copy seal it and then uses either before or after the suicide but on that original call integrity in the accuracy of these of these reports but i have to differ with that and i do so respectfully i don't see integrity in the process of law enforcement agents taking unsealed copies which are solely within their possession a very extended period of time when they are in fact witnesses who are there on behalf of the government and having them with no control and using them as exclusive source for court but then again the exact reply is there's a concern that what is on that copy i court's point although i would suggest respectfully that ultimately i think it's asking the defense to do the prosecution's job what we've done here if we accept the government's position that said that over there somewhere in a box never to be opened is a sealed take now is integrity but let's let law enforcement job is done at trial if you haven't asked anything up to that point and if and i understand you see the statute otherwise but if there is no language in the statute that explicitly prohibits the use of a quote copy and if then trial where the rules of evidence are going to determine issues of admissibility which this becomes a trial and if as they certainly are the rules of evidence regime we have our rules of admissibility and specifically ten zero three permits the admission copies why is there any evidence at all i'm sorry way that any suggestion that he let the government it was anything other than the word unary course and beyond that do you really really care about this issue when you have an issue of closure  that is part of this issue of closure i'm sorry i don't understand yet the the fact maybe maybe you should go to that the next part of year of your argument which is the fact that her sixteen minutes  his decision and he explained the record why and i'm not saying it was out of malice but that he had decided to have it so that the loudspeakers did not broadcast to the room itself therefore what you have i submit a structural air is not inadvertent when was brought to the attention of the court a good for us to our approximately after it began and frankly as soon as i knew because i'm sitting there and had felt then the second circuit in the peterson case is used  that is what we're what has been the subject of closure even an unjustified closure is trivial there's no constitutional violation that's the second circuit's test it's ours is that something we can see should let me ask because to me this is important and i don't know the answer i want to understand exactly what happened here do i understand that this period of time when the speaker was shut down was not merely the playing of hades but that the playing of those tapes occur coincident with a witness on the stand at all times who would from time to time testify in a preliminary way about what you're about here on the tape or in an explanatory way about something that had just been heard on the tape here on camera that i don't recall at this point there were a considerable number of people in the court i can't tell you with any sort of photographic memory memory exactly how many there may have been at the point when i first put on the headphones and was on aware for those forty minutes of the fact that there was nothing brought broadcast over the loudspeaker i mean obviously i'm facing forward in general but why recollection is there were a considerable number of people of the time i made object and c is the figure that we look at the forty minutes are the sixteen minutes of actual testimony there aren't seems to me that the public right of access to trial is not simply limited to words on a page or verbal content if listened to it it extends to the entire experience of the public being in court and of the defendant having publisher are you sure of that i mean that nothing is taking place in the courtroom here think that's that's a structural are so that when i see the court's point i think of nothing has happened happening the court has a point but in fact we're sitting them up in the fun scenario where people are doing things things are happening that may not necessarily be strictly testimonial but sixty minutes or forty minutes or in either scenario specifically a reference to a prior conviction of art or near as as well as the fact that mr ramirez stayed on the tape that he would kill someone for five to fifteen dollars if necessary when did he make that request during the course of the trial you prepared transcripts for the use by the jury that included those questions of the day we redacted those transcripts on the spot but we had the cassettes which had the full conversation so that the technician at your direction then when you running the equipment asked should i turn on the public speaker and i said now because we don't want to invert only cause a mistrial because if somehow that when he said order i still want to understand because i don't i clearly don't understand what happened nor do i understand the justification you have directed that the speaker be would there be no playing in the courtroom through the speaker because your concern is that the jurors who are using headphones and who will not through those headphones hear the offensive matter might hear it on the speaker is that is that what you're saying yes or so you're concerned is that this but why is it not possible to minimize on the speaker in the same fashion that you can minimize with the use of the headphones you are all human i was doing the best i could at the time a trial the request to redact came at the time of trial included many does a lot for doesn't you can you can minimize on the public speaker as early as the pretrial conference on december seventeenth when the defense counsel represented it is not opposed to government stark's motion which the government as represented that recording devices used were capable recording conversations the  devices were content the tape recordings are authentic and correct durbin no changes in addition stewart deletions from the sake recording the tape recordings have been properly preserved the speakers on the tape recordings are properly identified and the transcript of the state's in fact what they would be hearing is live testimony from witness and mr krasner could mansion my question but i assume that i'm correct that there was most of the time when all of the time during the playing the takes a live witness on the asked the question says you know yes or no actually gives us answer the question and then if you should must explain the answer you know but i'm i'm hoping that before we finish with your time today you'll be able to say yes or no in response to a question because answers are really good things to get every now and then we like to have answers it's where we ask questions and yet here you answer a question and we'll ask you a question and you will respond with argument but just  the fact that the transcript became available you were asked a question after defense counsel raised us and the district court ruled what well if anything happened with respect to the transcript what was said the transcripts were available to the public at all times during the trial because twice the transcripts were actually admitted into evidence first at the december seventh increase conference and then before any tape recordings recalled michael carlson who supervised the wiretap was called just explaining to the jury how the wiretap took place how the times and dates were recorded with respect to each individual telephone conversation all of the forty one granted it by the court before any tapes were played so that so was a public trial because this is not a situation where something was being kept from the public that is something that they had no right of access in this case the transfers require the record it's just inadvertent your honor and mistakes happen and we're all human and that's why i think the supreme court said the fencer type of a fair trial not a perfect one on hindsight i wish i had just told you you just flip on the public speaker i was more concerned at the time that with a four week trial a significant drug trafficking case involving an associate of organized crime that was getting these dealers a cocaine the flood the thought off the mark with again that something with inadvertently happened where the jury for them here is something that would cause a mistrial when everybody in the courtroom is not allowed to hear that it's back with me i don't get that and but from the district where we travel without explanation too but i think it's significant that defense counsel that it did not ask to have the seven i want the jury to hear him all over again correct so we would have just had an open court session and just played the tapes but they didn't ask for that because the transcript that really doesn't mean replicate what happened because what the public isn't and those transcripts remain available to that reporter the whole transcript but other than that there was no one else in the in the courtroom or the participants and i think what's important is what your honor pointed out that we're talking about seven tapes that were played which is a matter of approximately sixteen minutes out of a four week trial when those transcripts were available and available to the public this is totally different than the case that was the only decision that the fan that relied on light upon cases that you cite most of them deal with inadvertent closure here i don't think we can sign that it was inadvertent i think it seems to me it was deliberate but as you as you suppression hearing have been closed for seven days the supreme court said we have to look at what is a remedy in this case well i think the district court came up with a good remedy in this case which was the transcripts are available anyone can can look at the transfers i made the transport record so that's sufficient remedy for that problem that the the orchestre it was on as opposed to just taking up time excusing the jury and saying ok everyone sit here and we play the seven tapes again to an open courtroom and the chance that someone might walk in or out of the courtroom so by having the transcript available it's just moved the case all all the supreme court said you have to look with the remedy is in the water case ramey was if if there's a new suppressi that's for prosecution and leading some of the lower level defendants for state prosecution there was also an organized crime feature to this case worries me that as a matter of your office practice don't you always use a copy yes you're ok have to source everything that they produce in court off of the sealed original it would go to the court who the who sealed the original court would grant the order allowing they wouldn't have to produce the visual i'm saying that they would not have to play the silver original t source everything off of the field original and in fact if you look at the length of statue talks about how you have to have a seal or satisfactory after finding one think that you are talking about and that gets back to what you're saying earlier but you want to make one the original and then make copies from that finally i would just note this if i make a court which is that you know we can talk about with reference to the other issue the issue of public access we can talk about things being available and being open things being the public having a right of access but obviously the court has correctly address the point that being able to reconstruct at some later time by getting access to a book of tapes at some later time is a totally different experience of public access then understanding why the matter  presumes what is occurring so it's a so you know if there's a closure and it's a structural and has to be a new trial under these circumstances server it's not inadvertent under the circumstances where it was extended under these circumstances where the government did nothing to try to what about playing what about playing the tapes over again you know in court with that have been a right correct remedy i think i would have objected to that one because it would have created the scenario in which certain tapes are being reinforced  over and over no answer is there's that's not a remedy in your view so other than a mistrial what's what's the remedy let's try this remedy sir under these circumstances and when i and that to make any difference whether anyone was in the courtroom or not still a lack of access and anyone who would have walked into any i would have not been able to witness the proceedings as they work or write access is not and it's not actually a question of whether or not a particular person was there having said that we're talking about a four week trial in which people drifted in and out all the time i don't know how since i couldn't see out the back of my head my opponent is so confident that there was nobody in that courtroom the entire morning well he in fact made the same error on the record  that you are my belief is i did take issue with that at that time i can't at this point tell you exactly when or where but my recollection i did take some sort of issue with that to question in response to chief judge to refuse question about remedy  the remedy is my recollection correct that you also alternatively suggested that in the absence of the mistrial that the evidence stricken did you also ask and i seen that some recollection from reading the record judge or your recollections better than mine are secondly the point in time when mr is is well stated on the record that there was no one in the court that would have been a snapshot of what the case was at that point in time is that correct your honor i don't know what else it could be because just as he seemed to think what he was doing was fine i was unaware of occurrence i don't know how he could have been staring at the courtroom for that during the period of time that the seven tapes were played which may have been as much an hour there were work at least could have been people in and out of the court situation the most candid thing i can say is i am virtually certain there were but right isn't that a denial of access to the public we are i think i would have to revert to saying that this is far more in the nature of testimony it is far more in the nature and actual record ation of the human seems to me that if we're going to write a public access to trial then the public has to be able to know what is going on and that would extend a docking so documents and stocking us are somehow post the cancer but we're looking at this in the context of public access to trial and in the context of public access to trial i would submit respectfully that what you're doing is you are effectively playing the testimony of a witness even if he happens to be the defendant you're playing are in a time when technology has changed to a point where if you walk down the city hall they have a high tech we're with all sorts of screens it is now actually very easy to have exhibits displayed for everyone in the courtroom and i don't even mean just having a book available for them to see which frankly i almost never see anyway when i try cases i mean putting up one of law putting it up so it's visible we're in a period in an era when it shouldn't be a problem for documents to by one means or another technologically be shown to the entire courtroom as well as being shown to the