on that point how long have the jury been together and how much of the trial had a lapsed before this incident occurred without hearing occurred after two full days of testimony as was  tainted anybody else that's correct or what is what is it about the process that was defective such that we would be the we can say the judge matter britain abused his discretion going to want to end it in front of the entire jury panel in open court yeah i did something improper and judge matsch realized that that's why he's the initial inquiry he was very clearly stated he was going to the one juror that have been a den a fight and talk to her separately that's correct ok and then the alternate juror who had tipped everybody off to this event he had talked to her separately correct that's correct what they did were able to do that from the jury room they didn't do that sitting out in the in the jury box today that is does it were they required in this process to raise their hand in they did that do they pass a note that they know the words i hear what you're saying about and what judge matsch said about not putting a juror in the spotlight but i thought the process involved the way for observation by defense counsel that juror number three had been seen speaking to mendocino and holding a pad up with no suggestion at all that the subject matter was improper is that correct oh that's correct but th inference that was improper relates from the information the judge already knew about durham and that is that yes that's an inference that depends on an assumption that is that mendocino only talked about improper things and wasn't talking about  how funny they get tourney's ty was or what the weather's like all the kind of back back room chatter that goes on amongst jurors when they're together for hour after hour that's a tough inference to make isn't it that it has to be incumbent on him to protect the suppressed right to a fair and impartial jury in this case ok that's on that's in this instance that has been relayed by my colleagues the judge that did exactly what i think you would have liked to have done with respect to the two jurors  then without any further indication and far as any third party tipped off that there was anything wrong he made this inquiry of the panel in total apparently done in the jury room probably done somewhat discreetly the only case law or any authority that suggests that to do what the judge did in this case is in fact an abuse of discretion now there's certainly nothing on point there's general language in judges have a difficult role they have to decide right now there's a lot of pressure and time everybody's entitled to a fair trial but what you're asking us to do is to indicate that what this judge did clearly in an attempt to find out if there were any other jurors that had been tainted he made a reasonable inquiry discreetly one juror responded to that increase so that there's evidence that people were listening to what he was saying were responding in some way and he concluded based upon the responses that there were no further tainted jurors as was indicated by judge quest and jurors talk about lots of things not necessarily things intend to do that unless the court invites argument or has questions regarding the germs cause i would like to just follow up on counsel's point which i think is the one aspect of the process that is  least for me a bit troublesome because it is true that jurors talk about a lot of things and it is true that the you know whatever went on between over three and mendocino but the passing of a note given the fact that she had and indeed made and the judge knew that mendocino was given to making improper statements  very well have been appropriate to single out journal or three and call them out of the jury and bring them in for and in chambers conference but i think the real question for the court is was it is was it an abuse of discretion not to do that and judge matsch did in this case was to make a choice and that choice was does he single out one juror based upon a comment by defense counsel that he had observed no passing or make a generalized inquiry to the entire to the entire panel and trust that the jury panel will follow the instructions that the district court gave and i think the record in this case bears out that they did just so the record is clear the jury was sitting in the jury box when judge matsch gave what i thought were very sensitive and very few well thought through instructions to the jury about not forming a conclusion about the evidence until all the evidence and come in and not to discuss the case with anybody else simply inform the court the jurors were then allowed to go back into the jury bought understand the process but the problem still is that with all of those notions that were given at the outset of the trial one of the jurors at least had an improper contact with two other jurors so he now now that moves it beyond the realm of just you know there's some suspicion there's actual indication that this juror may have had improper communications with others and that the the alternate was troubled she came forward number three may have been sort of a step down from that so it's not clear to me why it's not an abuse of discretion not to zero in on the one where there is what we might call probable cause now i understand certainly not a single out a juror has some collateral consequences and there may well have been other ways to accomplish it by calling them all in and going through a perfunctory individualized review in order to not focus on one juror but and i think i think your honor that's exactly what judge matsch was trying to avoid which was to drop more attention to the problem to call in every single juror and have a time consuming process wait a minute you have a case where this is a situation where the jirga has expressed to two jurors predisposition and bias against the against the defendant that's correct your honor and again we come back i believe to your original questions that what this is all about is that it's about process to identify whether or not the jury panel as a whole has been infected with possible bias and i think to follow up on judge smith point i don't think that one could reasonably say this was an abuse of discretion he had a choice to make and no one disputed that there had to be an inquiry put to the jury panel based upon alternate number two's allegations and your number for german t as confirmation that the allegations were true no one disputed that there had to be some sort of hearing and some sort of inquiry question is was that an abuse of discretion the district judge had to make a choice i think the choice that he made was a reasoned choice and i think that the instructions that he gave to the jury would have cured any possibility that was bias at one final thought if the court is troubled the remedy is certainly not a mistrial the remedy is for their hearing that's exactly what happened in united  united states versus angelo where the district court literally did nothing when informed by a jury a juror that she had received a threat she comes unique aided the threat to other jurors and yet the district court did nothing to follow up on whether or not on the manner in which inspector cummings conducted the investigation and the conclusions that she reached what was never in dispute and what was conceded strong the defendant's opening statement is that the defendant had mis recorded transactions while she was under surveillance and it was undisputed that the defendant had mis recorded transactions during the time period that was subjected to forensic analysis when i made that promise that our office reviewed the evidence i was trying to correct what i believed was a misimpression created by the defense that inspector coming has reached a conclusion and then the next thing you know we're impaneling a jury i believe that all i was doing was simply describing the process and was simply describing something that the district judge had told them during jury selection and what the district judge stated excuse me your honor was the following the fact that the defendant has been charged with the crime simply establishment that a group of people concluded ok that the government concluded that there was enough evidence to make it more probable than not that she committed the crime in making a statement that i did i did not i do not believe and do not believe then that i was going any further than what the district judge had already told them inspector cummings credibility as to the objective facts was never in doubt what the defendant did objectively in terms of mis recording the transactions or failing to record transactions and the manner in which the paper records were to be interpreted that was also undisputed what they tried what the defense tried to do was focus the jury's attention on what inspector cummings believed and when she believed that all of those facts were irrelevant none of those facts had any relevance to the eventual outcome of the case which is what did the defendant do did that demonstrate was that evidence of deliberate misconduct and if responsibility to not review the evidence and trust the prosecutor and i think when you look at the record as a whole twenty seven pages combined of my closing argument in my rebuttal i don't think it can be fairly said that i was asking that yours to substitute their something that should be done so it should not be done and in retrospect looking at that passage that is not one that i would repeat i would agree that that is a possible interpretation but i don't think that's the only interpretation and i think that the  jurors would know that i was not asking them to substitute their judgment i have approximately ten seconds last you know actually your ten seconds over oh i apologize if i figure if you have any questions regarding the claim of griffin error or germans conduct i guess you have you have cancer or aids and most of my colleagues theories we heard in the issue about seeing for example i this is plain error we have to evaluate based upon the record what prejudice there was seemed like was overwhelming amount of evidence that the prosecution put on you know hours of videotapes i'll kind of the one hundred seventy instances involve here what what evidence did your client put on that substantiated or that any other party substantiated her theories of why these things happened and why they were innocent i think your honor that that evidence is not so much the evidence that was put on but the evidence that wasn't put on that is you're right there was a large among circumstantial evidence and the next case on calendar united states versus gardner