actions of leds in the indictment based on the borders of his superiors and he reasonably believed those orders were lawful he could not be acting with corrupt intent his reasonable belief that those orders will awful negates corrupt intent and i believe after this court's decision in which says a public authority defense can be used to negate an element of the crime that qualifies as an affirmative defense of public authority and because unlike does we are in the cage in the element of the crime the burden should have been on the government to disprove that this was objective a reasonable and that was our proposed instruction number twenty three which is that excerpts of record seventy vatten is consistent with an affirmative defense of public authority that you that is used to negate an element of mens rea and we side of the cases in our brief that supports that proposition and there was evidence here that established both that they were acting pursuant to orders and that it was reasonable for them to believe that these orders were lawful and that type of instruction is particularly important in the context of sub warden and police officers and the barker case of course talked about that a lot about even the model penal code says there should be a special exception for a police officer because they have an obligation to act and you need to make sure that they are not impeded  duty and so you need to give them the protection of that kind of instruction so the jury instructions told the jury that to find defendants guilty they had to have an intent to obstruct the federal grand jury investigation how i mean even with what you're saying if the jury found that that was defendant's intent then how is that i don't understand what the problem is that they could have found that all the things you're saying are true but if they're also finding that they had the intent to it impede federal obstruct a federal grand jury investigation then don't they have the necessary intent to find them guilty i don't believe the judge friedman and the reason is because the judge actually gave an affirmatively incorrect instruction which one was that that was the that was the  instruction that he modified based on barker which is that page two thirty three into forty of the excerpts of record and what happened was that this is after we finished arguing we had already given our defense  tuesday morning we come in we wanted the same instruction he had given in the second case which said that is inconsistent with the intent the jury then would have known it's one of the other so that if the jury made now are you arguing now that the problem was the timing or the problem was the substance the problem was the substance and i'm just pointing out how unfair it was but if the jury had been given those two options if they acted pursuant to objective lawful orders they can't have corrupt intent and they found corrupt intent you would be absolutely right we would have no complaint that's not what happened so the judge basically said incorrectly in our view i mean he thinks that that you can have both those states at the same time we felt like there are multiple of couldn't you have following orders for some act and obstructing justice for another act you certainly could but you needed to make it clear to the jury that those two states were inconsistent you that they're going to focus on a particular act and one of the of the government case which i hope to prefer to address than apple are but in this context the jury really needed to know the difference and then if they found corrupt intent so be it they were at least instructed correctly that it's one of the other that's not what happened and what what the judge did was he said it's evidence that you can consider now i realize if you look at that you say it's just several more what's the big deal but these are jury instructions the judge changed it for a reason i mean he just didn't want to make a better sense he wanted to make sure the jury understood well you can find that they're acting pursuant to what they believe are a lawful order but they were still acting corruptly and that's not true back is in this context that is not true and so you needed that dichotomy and we didn't get it and one of the other problems with that was the dual purpose instruction granted you can have dual purposes you can have a and you can have a lawful purpose you can have a lawful purpose in wanting to protect brehm right that doesn't mean you couldn't be doing it unlawfully to obstruct justice granted but what you can't have if you can't have someone in this context who is acting pursuant to what they think are lawful orders and also have corrupt intent and the dual purpose instruction not unintentionally made it seem as if you cut and that's what the harm or these officers needed to be able to have the protection of a jury instruction which said that just because you're doing what you are told if it seems to be because you've got an obligation to follow orders as long as it appears to be objective lee reasonable you've got protection now if the government prove that it was not objective lee reasonable and because of the public authority defense that negates mens rea they would have to do that beyond reasonable doubt they're entitled to an acquittal and we never got the benefit of that instruction the other problem that we had here is the court's view the government's view that once they found out that this was an f b i phone game's over and i just think that that's wrong there's no support for that they could continue to investigate because they wanted to find out whether or not this was authorized who authorized it and certainly i have trouble understanding your argument on that point because the judge didn't say they couldn't investigate whether the f b i had actually been the ones to give him the phone the judge didn't say they couldn't investigate a possible crime i mean the idea that if they had a phone from the f b i it wasn't a crime doesn't negate the possibility of lots of areas of as best occasion does it absolutely i agree with you on that and i think that what happened though was that we had proposed an instruction in the beginning saying that local officers have a right to investigate and they have a right to investigate potential crimes by federal officers right so that was the instruction in iraq waiting with for out the entire trial that's what we wanted that was our defense and right to investigate the judge then and this again after the arguments he will again are you arguing about the timing of the substance arguing about the substance but i do think that it shows the unfairness of it and what the judge then did was he gave this instruction saying that if the phone or other contraband was introduced at the direction of the f b i he didn't even say authorized at the direction of the f b i there would be no crime first of all i think that that's it and basically instructing the jury what the facts they should find but it was also really directed at craig testimony and levinson asked him only if the judge wanted to make sure that the jury would not be misled by their testimony so that's where we get that instruction if that's what the purpose of the instructions was the judge should have given the challenge of construction on the state offenses not tell them there was no offense it was directed by the f b i and the way that it comes up judge is because and we told the judge this when we when we were complaining about the instruction if you give that instruction which says that there is no crime if it was directed then they can investigate mean that why not though i mean this is what my question was about it even the premise of the instruction is that the f b i given the phone when they have to investigate that i mean maybe you got the phone from someone else there are lots of things you can still investigate it so i don't understand this argument isn't the reason i think there's a problem with that is because another instruction said they have the right to investigate potential crimes and so the judge is saying there's no crime here but so say you got the phone from another inmate then it is a crime right i mean there are lots of things they could still have been investigating they still could have been investigating what this guy was doing with the phone with potentially with drugs you've been arguing so i i just don't really see how this instruction cut off any  most avenues of investigation even assuming your argument there was no dispute everybody agrees that on august eighteenth when the assistant director in charge of the f b i called up sheriff former sheriff bach and said that's my phone everybody knew that it was inserted by the thought of that point and if i could just make one point before i get to the end of my time here if you want to see how it played out and why i think our argument is is as solid on that ground as look at the prosecutor that's the way he interpreted that instruction and he told the jury in his rebuttal argument once they find out it's an f b i phone game over that's the interpretation of the instruction and that's what they had back in the jury room i just want to spend this case given the government's arm of the grand jury theory there want in the same and there's a couple ways around that that the brief i think really that's a very good job of explaining why the arm of the grand jury theory only goes to the foreseeability element but and that's explained in the briefs and i don't want to draw on that here but what i do want to point out is that if you are going to allow the government to proceed on an arm of the grand jury theory where basically the f b i becomes the grand jury you need some protection to make sure that they just don't morph into one another and what should have been done at a minimum is that there should have been an instruction about what the arm of the grand jury  on the fifth day of jury deliberations a juror sent out a note saying that due to the rest she was to be excused the fact that happened on the fifth day in the words of this court's opinion christianson is consistent with the jury attempting to engage in deliberations on the merits but unable to convince her cohorts the juror said that the duress was not from the other jurors that didn't she well she said it wasn't from any specific source are sort of vague but the court switch gears from those questions quite quickly rather delving into them and i don't think that there was anything to prohibit the court from getting more information that context but it was obvious what the district court thought the problem was because he  gears quite quickly to saying you know in cases like this it was a fairly long case jurors have different opinions they're going to express their opinions it's not unusual that voices make it raise from time to time but it's part of the process he clearly seemed to understand the thing that is consistent with this situation which was remarked on in christianson which is that they're they're in they're fighting it out that's you know what jurors sometimes do the movie after all is called twelve angry men not you know twelve complacent people who are all getting along and that beginning of the questioning forms the context of everything that comes after that if that wasn't what was going on of course the juror would say no that's not the issue is not the people's voices are getting raised and stuff like that it's something else but she doesn't disagree with that and further in the course of the questioning early on the judge says in the first you know real page of the questioning he starts putting this qualifier on of can you reach a decision can you reach a verdict and she says no i can't and when the judge removes that qualifier she then repeatedly says i can to liberate i can go on i can fulfill my roles which are given those facts it's impossible to be firmly convinced that there wasn't a dispute about the merits underlying this request to be excuse and you know in footnote five a signing to the court talks about this firmly convinced and it is like beyond a reasonable doubt and i don't know how you could possibly say that her beyond a reasonable doubt that her problem reason for asking the excuse had to do with something other than a dispute on the merits now i think the root of the problem here is that the court the district court wasn't aware of simonton didn't have any briefing on it as an christianson the court asked for briefing was fully aware of the test and apply the test appropriately here the district court obviously wasn't aware the test because the district court clearly seem to believe look if this juror is having a problem even if that problem is related to a dispute about the merits if it's affecting her ability deliberate i have to excuse her where i just cost excuse her and that simply isn't correct you can't excuse a juror who's engaged in a conflict with other jurors about the merits of the case you can at that point declare a mistrial but you can't just excuse the juror s leaves you firmly convinced which is sometimes language that's used in defining reasonable doubt i mean i read it as there needs to be a reasonable possibility that the juror was the reason was disagreement with the other jurors and here the juror never said that that was the problem with the juror and essentially agreed with the judge's characterization that that was the problem and then when also indicated in the course of questioning when the qualifier reach a decision and reach a verdict is removed tempers get raised people have strong opinions that happens well that the judge did say something about how people might raise their voices but she never she gave this kind of incoherent explanation of what her problem was and apparently was very distressed  emotional and the judge apparently seems to have reacted to her emotional state almost more than any answer she gave because her answers are sort of all over the place where i don't think the judge didn't see it that time look let the record reflect or one of the  party counsel said let the reflect record reflect she's doing something you know extreme emotionally there is nothing like that at all there is this vague reference to ocean was emotional months later at the hearing a motion for a new trial but there's nothing extreme that she's crying that she's breaking down or anything like that but even if there were if that extreme emotional response was due to a disagreement on the merits she can't be excused otherwise these trials would become you know where there's a conflict would become sort of a contest of maybe who is the most of noxious or who has the insurance to withstand this conflict you know who's going to give up first and that certainly can't be the law now i think it's useful to say a couple things on the preservation of this issue are sort of three appropriate things the district court could have done when confronted this with the situation at the point that he excused the juror he could have declared a mistrial he could have said you have to continue deliberating with the other jurors juror number five or you could have asked more questions i think it would be permissible to ask more questions and could have been done without invading the secrecy of the jury deliberations the four of the defendants asked for one of those options some of them asked for both  this report was presented with the right positions it made the erroneous choice and when you're sort of weighing in the balance here well should thompson get relief based on this constitutional air versus you know sort of prejudice the government the prejudice the government a retrying six defendants that's compared to five is minimal where is of course the harm to thompson is is quite significant turning to the preclusion issue or doesn't have you know questions on the jury dismissal issue i think the important thing to faith instruction here there is a thirty three of defense instruction that says if the defendants believe in good faith that the following lawful orders and that effectively that was objectively reasonable that's not consistent criminal intent actually permitted someone inconsistently to testify to some degree about his his interactions with the ocean not to be kept in shut down when he tried to say what do you know should i tell you what did you do based on that based on really meritless foundation objection which aspects of the notion i proffered you think specifically were not let in through this other testimony because when i read the issue not a proffer it seems pretty vague it's not obvious to me what specific things he was going to say that you think should've gotten  the key thing is the interactions that lead ins had with respect to this memorandum that was ventilate signed off on captain kerry because that memorandum forms a legal basis for going ahead with this investigation and leavens make it quite clear that look you know i wanted to make sure that we had a firm legal foundation for going ahead with this testimony that interaction that they had both reinforces eleven's mind that this is this is you know these are lawful orders  reinforces in the jury mind jury's mind that he's going ahead with this in good faith to try and make sure that he's following lawful orders and it also supports that you know the objective reasonable is aspect of the instruction but the irony is that the objections come whenever little almost all of them common weapons and trying to explain those interactions about that memorandum and then in cross examination government counsel tries to make if you will you didn't really meet with him you made this up you can say this during the grand jury proceeding code sections and cetera for the memorandum i mean some of it was big but certainly not with respect to memorandum if there were this to the extent there was more solid substance to it was in that context thank you long were of course members of the i c id and they were subordinate law enforcement officers as well what were they really supposed to do and the problem here is that the critical question was whether their false statements which were made in the course of carrying out an apparently lawful and authorized investigation whether those should be considered made with an intent to disobey the law and alternatively for the purpose of the obstruction counts because they were also a basis for obstruction whether they were made with the intent the corrupt intention obstruct justice so what happened here was when you know evidence that what they did which was used deceptive tactics and they made of technically routine law enforcement behavior that law enforcement agents are allowed to use deceptive tactics and in fact those taxes are how does that lead how does that further the investigation well the question is well they sat down and and marcella long said in her grand jury testimony they made that statement because they wanted to talk to agent marks and they were told to make that in fact you know the the record shows that the order came directly from who said do everything about handcuffs or and so they went out they tried to get her to talk to them the encounter lasted i believe sixty seconds she said no and that was that pretty much so how do we assess this conduct right so what one of the points we made in our brief is that they should have been allowed to introduce corroborating evidence to law enforcement agents which he only used deceptive tactics and in fact they're allowed to use it and this court has approved and the supreme court were not given evidence that corroborated the notion that it was not the evidence that would have showed that this that these activities because to a lay person this kind of activity looks really look wrong but we t officers that they're allowed to do this they're allowed to lie to suspects they're allowed to lie to witnesses they're allowed to do things that civilians aren't allowed to i mean there usually aren't laws that say you can't lot of people there but there are laws that say you can't lot of the f b i so isn't this a little different than the usual lie well that was the government's argument but nonetheless but that makes it all the more important because because to be guilty of a false statement you have to have a specific intent to disobey the law so if they were acting and again we go back to the  the good faith in the public authority instruction here if if if the if my clients all of our of all of the defendants believe that they were acting within the scope of their authority to obey the law it's completely inconsistent with an intent to violate the law and i think that's the fundamental issue in this case and but for my purposes in terms of you know they were entitled to introduce evidence that in fact this kind of conduct was routine but i have more trouble in the specifics i just stand the general concept that law and agency lie but what was this law intended to accomplish it seems far more likely or i can understand a it's leading the f b i to knock it off not that they're really trying to extract information from her not sure how how about how you could reasonably figure out that she's going to respond in an investigative fashion well the problem is is that it will in this case what were they hoping to get they were hoping to get her to talk and in fact that's what sheriff baca told them to do go get her to talk and they obeyed that order and i mean i'm not sure you know what were they hoping to get they were hoping to get a reaction they were hoping to get some information you know would it have been better if it had been done another way up probably and what information were they hoping to get that had a legitimate law enforcement whatever because they were tasked with controlling the jails they were tasked with trying the i c idea at least was tasked with investigating their own so you're saying what they were trying to do is find out from marks who w in the sheriff's department was violating the law and that's what they testified to yes among other things i know you're not saying they were trying to investigate the f b i now you're trying to say that they were trying to investigate themselves that seems like a twist from no i think he was trying to investigate both but if you read the grand jury testimony and you good marcella lost testimony she said we just wanted to get their attention we wanted to find out what they were doing part of what they were doing was investigating corrupt officers and this is an area where i see i and i'm i'm running out of time i want to save some for a battle but i see i v has over it had overlapping jurisdiction remember i c id is tasked with investigating corrupt deputies offenses by law enforcement agents not only by by the jail deputies but other police departments as well and you know consider the conscious consider the circumstances of the interview that was videotaped it was audio taped there was nothing that would have clued in a reasonable it was not obvious to a reasonable person i don't think to a reasonable law enforcement officer that they were doing something wrong and that is why the evidence was so critical i'd like to see the rest of my time that's it please the court tom o'brien on behalf of deputy james sexton good morning i like to reserve three minutes please your honor for reply will the cornerstone of the case against james saxon arose clearly from his grand jury testimony the second time deputy section testified before the grand jury over that testimony was wrongfully obtained by utilizing the power of the district court to subpoena a known target before the grand jury this is section had been told and his attorney had been told specifically by the u s attorney's office he was not a target and in fact that objectively was completely wrong and despite the does he believe he had an immunity deal no your honor he but that's not required however if the government would call the target before the grand jury which does certainly happen it happens when the person is advised that they are a target and in that those particular situations they're either given immunity to testify or they're already pled out there's a cooperation agreement so that they know they're going to be charged they're furthering the cooperation that didn't happen with mr saxton besides the testimony however it did get read to the jury in the first trial the jury hung six to six following the mistrial the court did two things materially changing the case on the second trial first the court removed from the jury's consideration numerous instances of the testimony in the before the grand jury which indicated that the state of mind of mr saxon his belief in what he was doing was based almost entirely on guesswork and rumors that was removed from the jury the second thing the court did did not allow the second i would just guess work idea have really helped him well because your honor the the whole issue  the the movement of the inmate anthony brown which the court has read through all the records it was an operation to keep him safe the theory for the defense by all the defense witnesses where they were ordered to move anthony brown after he was identified as a snitch and he's snitch in the jail facility can be killed so for his own safety as has been done hundreds and hundreds and hundreds of times as we had testimony at the trial the inmate is removed from the  jail computer system and moved to a different location so if any corrupt deputy who wants to hurt this snitch is looking for him and accesses the system he will not be able to find them and that was a testimony to the differences if if  was sure the f b i was investigating so he tried to hide them i'm just not sure why this the but if you're guessing that that's the purpose i mean if it's your purpose to obstruct the f b i whether you're sure you're doing it or not i mean if you know that that's a possibility and you're trying to impede them he said that there were rumors in response to the court's question directly why they needed this why the move the senate around well the order came down again to protect him but down in the jail level and that's where mr sexton was he was he was there to babysit in his terms but i mean he they asked him is so you understood you would be breaking some law is that correct that's correct i mean he was saying in his testimony that he knew that he was breaking the law and so i guess what you're saying is he was guessing that he was breaking the law and that's a big differen jury in here if you heard the first time not the second time the fact is when when mr section is testifying the fact that he was speculating he was not privileged to the entire information i was trying to put it together on my own right i just don't understand why it matters i mean if he believes that he is obstructing the f b i investigation whether he did use that himself or knew it for sure i just don't understand this argument really well because the answer is this i suppose there's a complete difference i'm sure you're i would agree if i said somebody told me i was breaking the law and we parse the per first part out and say i was breaking the law that there's a complete difference in that and the for the problem in the problem with redacting those parts it's not hearsay as a government  is the state of mind but by removing all those parts there is a whole forty five minute or so testimony before the grand jury which would let a listener and certainly the first jury listen to this and a lot of us in closing argument to hit on this repeatedly i believe the were fourteen instances of i guess i believe rumor innuendo it's all about innuendo and nuance that covered his whole testimony and if your honor would listen to that and that type of testimony is the first jurors did i'm sure the court could also conclude you know what this testimony is really not believable they're asking questions and based on speculation so we think because of that that the that we've jackson's we're certainly we're certainly harmful to my client we think there are certain environment in particular for a target as a lawyer waits outside or in this case in alabama because the lawyer was told by your client is not a target and then to testify so this detect this deception has essentially as a target three choices believe his counsel certainly should have your honor but i don't think it is not the government's fault no your honor but i think what the government has a fault in this is if if a attorney has told your clients a target or he is a subject we're looking at him the grand jury is investigating his behavior and it's crystal clear this is what the grand jury is investigating the obstruction if there are twelve he's told that honestly then the attorney would step up and say he's not going to testify in fact mays jemison who was the alabama attorney at the time a business lawyer submitted a declaration it's in the record that indicated he was told by the government correctly that his client was a target he never would let him testify but when you're told affirmatively the other way he's not a tar t then i think it's reasonable for a defense attorney to believe my client has no danger the u s government obviously operates above the law and follows the law and therefore i'd take the government for its word and so mr mr section is called before grand jury in the reason this case is more egregious we would offer than some of the others including the cases where the court of appeal actually dismissed an indictment is number one unlike those other cases my client was affirmatively told he was not a target the other cases your honor indicate that there was no indication at all whether you are a target in the uk so are you basing this on the violation of the u s attorney manual or now are you trying to make a different kind of misconduct argument well aside from the branch and we're not asking the court to to step in and monitor the u s attorney's manual which is of course a policy manual which is put out publicly on purpose so everybody knows what the rules are was what we have said that's not equal to d exactly right on and i agree with that and it's also not enforced the ball i mean it doesn't have the force of law if that too i agree with your honor however this particular narrow sliver of the you sam is about this big a narrow sliver that gives this toward the supervisory power is the fact that the grand jury this does not exist without the district court the grand jurors are called in without the power of the court we always use the term the u s attorney or the f b i you know issued a subpoena that's not true they use it in as an arm of the since the grand jury so so in that particular case i think the court certainly has the power the other issue besides the fact that mr section unlike all the other cases we've been able to find was affirmatively misled by the government on his status is the fact that the government in this particular case unlike the others put four targets before the grand jury three of the other co defendants testified before the grand jury so they did this repeatedly on it and again a target does not mean i've got every single shred of evidence you've confessed i've got it all which on video we have d n a that's not a target the question is objectively could he be charged with a crime is the prince harry looking at you and when you told by the government no they're not come on and sit out and take the oath and testify the government got what they want which is a sworn statement which was not just used in the trial both trials repeatedly it was used of the appellate brief filed by the in response to our brief here al statements are from the grand jury testimony and the reason the court never sees these if he does this never happens this is a violation of the u s attorney's manual and my client said that doesn't have the force of law and is given his miranda warnings so it's a little hard for me to see the attorneys talking to an attorney that's different the attorneys at the u s attorney's office don't lie to other attorneys in order to make a case they never have been and i'm not saying for a moment that these five prosecutors did either and i'm saying is that they were overzealous and utilize the power of the power  record back in august twenty nine months before the grand jury three o two from the f b i agent sexton participated in the sheriff's attempts at hiding inmate brown from the f b i agents change brown's name guarded  an adversary that makes him a target there alone makes him a target at that point the u s attorney's manual and the power of the court again dictates we can't go in there and do anything with that we have to talk to him with his lawyer and start to work something out he several times beyond that november sixteenth prior to the grand jury prior sex and heard there was a federal written issue for brah elliot obtain a court order it's a shell game of multiple times your honor in the record himself before the grand jury because he had done so already if i can the the last thing i'd like to cover real quickly is the other move by the court the error that  they excluded testimony regarding the government's withdrawal of the writ and the first trial we listed testimony that on august twenty fifth the river for entry brought was which was issued and it was withdrawn four days later following a big recall the powell meeting testified that the writ he was told by the u s attorney had been withdrawn and that was a pretty powerful thing we made a lot of it during the closing argument the first trial then said basically no one's looking for anthony brown the grand jury does he want anthony brown there's no the natural probable consequence of obstructing obstructing the jury you can instruct the grand jury the grand jury no longer wants anthony brown it makes sense that there is no danger in september seventh and by the way during this period in august the morning your honor is made things the court actually all for the united states the smith case is far less of a labyrinth than defendants have made it appear in their briefs defendants intended to obstruct justice and specifically they knew of and intended to obstruct a federal grand jury investigation and as a result they were rightly convicted now the core premise of the finance appeal that has been discussed repeatedly today as well is that this result was wrong or unfair because defendants claim they lack the knowledge that they might be convicted for what they did that is that they they misunderstood the law they weren't on notice of the instruction of justice statute or most centrally that they believe that there's the piri reis order put them beyond the reach of the law and that's all wrong the mistake of law is not a defense to obstruction of justice no matter the source of that mistake and a quarter of a century of this court's precedent establishes the relevant standard which is that all the statute requires is an intent to obstruct justice it does not require a willfulness much less the kind of willfulness that requires knowledge of a particular code or regulation it does not require knowledge of an independently determined legal status it doesn't criminalize a violation of some complex regulatory regime it just requires that dependence intended to obstruct justice and they why is that the case if they also think that they are pursuing the lawful orders given by their superiors yes your honor and i think it's helpful in that context a focus on what the actual orders and evidence were here the orders were to take particular acts to protect brown to investigate and it's as a matter of common sense and the evidence it's perfectly possible to take a particular action both to comply with that kind of order and because you intend to obstruct justice and that's what the record here showed and i actually want to back up and start with one somewhat mundine but important point about preservation of error in their brief defendants have assumed and in their or in their opening rely on for a jury instructions the mickey see indies has been overruled on exactly that point and it and the facts of this particular case it's wrong at trial transcripts sixteen and six one thousand the defendant asked for and the court denied both a one for all objection rule and a continuing objection rule and in their jury instruction filing c r two eighty six which is the first ninety odd pages of the excerpts of record defendants submitted overlapping and oftentimes competing versions of instructions in fact in some cases they objected to each other's obstructions you are eighteen and nineteen craigan levin's objected to an instruction that smith and manzo propose there are times when the trial judge made clear his impatience or declined to permit further examination on the notion of are you guys over there have to get this straightened out and we're looking into mr x to do the examination here and i don't want to keep hearing from y and z so at least in terms of trial management it looks like the district court did treat the defendants at least somewhat collectively there may be a difference in the context you just stated where you have a particular defendant taking the lead examining a witness then in the context or you have the government examining a witness and defendants raising particular objections to that evidence or the exclusion of particular evidence and in this case the court could not have made more clear that at least in that latter case there was no one for all objectionable so jumping in with all the various instructions we started with the public authority instruction and mr going to go stated that a reasonably reasonable belief th particular public not sure it's mistake of law and i seems to me the premise of the argument referring to was that the two states of mind are mutually inconsistent that is the defendant could not have violated the obstruction of justice statute could not have corruptly acted to obstruct justice at the same time the defendant thought he was pursuing lawful orders from his superior are those not mutually exclusive and if they're not why not they are not and particularly not on the facts of this case first of all assuming there were a universe in which defendants were ordered to obstruct justice and there is no evidence in this record that they were that corrupt deputies and those are things that you would want the sheriff's department to do if the individual defendants thought they were pursuing those instructions outlined in the instructions from an instructional standpoint the dual purpose instruction was absolutely correct both as a matter of law under this case anderson it and lauren's and the first circuits analysis and woodward and as a matter of fact here because  facts show yes defendants did take actions that followed orders for them to take those particular actions but they intended to obstruct justice as well and i think both as a matter of common sense and as a matter of the evidence that was actually admitted in this case that's exactly what happened and the fact the defendant's intent was only partially illegal only a little bit illegal is not and it is not a defense to fifteen zero three or to anything else similarly on the right to investigate instruction  the california penal code instruction in the reply recent today again they mention the court's comments that the game's over after august eighteenth when the sheriff found out that it was an f b i phone it's important to know that that comment was outside the presence of the it is not but the instructions say the instructions indicated that the defendants did have authority to investigate even potential violations of law but i think in context it's also clear that that was a comment on the particular evidence in this case had maintained that they might have thought there was some rogue agent that allowed them to investigate f b i agents in this case but the day they found out that the phone was an f b i phone was the day they found out that it was an authorized investigation because  baca got a phone call from assistant director in charge martinez telling him as much and so on that particular facts of this case the claim that there was some rogue agent was totally not credible and the day they knew it was an f b i phone was the day they knew that it was not a ro phone in the jails on aguilar just briefly the government did not shy away from aguilar at all and in fact i think the sexton target warnings issue shows just how seriously the government aguilar in this case and the jury instructions told the jury that they had to find exactly what they needed to find the defendants knew there was a grand jury investigation that they intended to interfere with the grand jury investigation and if they took steps that were material to the grand jury investigation which they ultimately did turning to the issues that mr burns raised on journal or five symington says that if the record discloses any reasonable possibility that a juror was dismissed based on her view on the merits but that she cannot be dismissed and the record here raises no reasonable possibility that that's why the juror was dismissed and you are for twenty nine she said her f nothing to do with the other jurors at your four thirty six to thirty seven she get indicated the concern was with her own thought process and the court's questioning overall was designed to test whether she could deliberate if she couldn't deliberate if because of her emotional state she couldn't in what you think she meant by duress or not i'm speculating i know there are people that have trouble sitting in judgment it's a common line of questioning during jury selection and it's not as uncommon as you might think i think in this particular case she indicated that she had been on earth by the opportunity to sit on the jury but that as she got into further into her own thought process she wasn't convinced that she could come to the right conclusion that to me based on my personal experience indicates she may have trouble sitting in judgment of people or in particular she was using this word arrest which usually sounds more external so it is very unclear to me what she was suffering from and it wasn't explored very much was a i think it was explored as much as the court reasonably could out of concern for interfering in the deliberative process this is a symington indicate this is a very sensitive area and there's a lot to be lost by by prying too much into what's going on but in this particular case the facts indicated that there was nothing that had to do with other jurors she kept emphasizing it was her own thought process the court itself commented that she was extremely upset and in so far as her answer shifted somewhat over the course of i think three or four rounds of questioning even smith's counsel recognized at the time that by the time the court has called her back three or four times she probably felt pressured to start agreeing that she could go back into the room and overall this case is most like to suit in that case as well a juror announced herself that she was having in that case religious problems with coming to a verdict there was no complaint from other jurors that the juror was a holdout there was no indication had anything to do with the merits and the court in that case affirmed the dismissal was appropriate again we're back to the central fallacy about the state of law  the facts i think are the most important because the only thing you shot of could possibly have established his memory was so bad his proffer is nine pages of a lot of nothing was that he was in the room at various points regarding exhibits fifteen zero five and fifty six the memo that he got were left harm have been to the government of admitting or should i guess testimony your honor i think it was extremely confusing and i think the proffer itself indicates what defendants wanted to do with this which of the obstructive intel you've argued that it doesn't matter if they think if one of their reasons was following lawful orders i mean if this would have only gone to that point then why why did it matter if it was admitted you know i think it would have been unnecessarily confusing particularly given the option of as limited memory and the opportunity to try to draw out a witness that effects they had no foundation also into blessing actions that he knew nothing to do with that said at most in some respects it certainly was cumulative and we've argued that in the brief particularly with respect to authority to investigate since there was a jury instruction that they could investigate but with respect to fifteen zero five and fifteen zero six with were mentioned are in the record and so the jury could see that in fact levin's had community made communications that he said that he made ms landau started her argument about craig and long by challenging the sufficiency of evidence regarding their intent and there is no challenge to the sufficiency of evidence regarding the thousand and one charge at all long has only challenged sufficiency of evidence regarding her intent to join the conspiracy and so i  believe those arguments are waived but getting to the core of what the argument is the evidence shows that by september twenty sixth which is the day that craig and long approach special agent marks they both already believed they had the evidence does not show that was the intent for approaching special agent march and particularly with respect to the argument that roos's were at the core of this and ruse testimony was important craig deny that he was lying craig said that he was just telling he truth and that he had probable cause to arrest her and was planning on doing it long never claimed to have used any ruse in that discussion she effectively just said she was trying to pressure them to reveal stuff to her and her tone of voice on the recording of her interaction with special agent narrow that day speaks volumes she does not ask the chalet janiero what are you investigating what are you looking into she mocks him and laughed at him when he was scared and then the recording stops abruptly i think the evidence shows that the intent of those interactions was not just to conduct some lawful investigation particularly when they already knew that they had no jurisdiction to conduct the particular investigation they were doing based on their own understanding of what judge trivia did earlier and that the court has no further questions about the smith case on move on o smith case to me demonstrates the breath of this instructive endeavor and the sexting case demonstrates how obviously illegal it was the target warnings issue that has been raised here has numerous factual and legal the facts just to focus on a few of them counsel ignores unregarded evidence and the court's finding that sex and was not a target until his late november grand jury testimony the only evidence to the contrary is the opinion of his then counsel not current counsel who said i always thought he was a target and respectfully that's not credible in light of the record at all if you look at c r two thirty two which is the long pleading and response the defendant's original motion to suppress this it lays out the timeline in detail as to how sex and came on the radar of the u s attorney's office in the f b i and that timeline indicates that it's true he was not a target he was informed he was not a target because he was not the target he initially reached out to the f b i himself and keep in mind he's not just he's a law enforcement officer he's a law enforcement officer from a family of law enforcement officers and he reached out to the f b i because he had an axe to grind about an unrelated claim of retaliation but then he said he didn't want to talk because he wanted to only talk off the record and you'll see there are numerous references to his having his own honor code as to what he's willing to talk about and not willing to talk about but ultimately the u s attorney's office and the f b i hear from another deputy that he may be in fact being retaliated against and he gets subpoenaed and to talk about that and that's what he talks about and with respect to when he actually became a target as i mentioned earlier this really just demonstrates how seriously the government took aguilar in this case he became a target when he admitted that he knew of the risks and acted with a corrupt intent to hide brown so that would not be covered now he mentioned the right one previous time and he indicated that he thought the sheriff's department was engaging in some sort of quarter of a battle to resist it he did not say he knew he was obstructing justice he did not say that that that quarter battle didn't exist and instead they were just going to hide him and that's what happened during his grand jury testimony later i've laid out in the brief why legally this isn't a grounds for suppression in any case even assuming he was a target i would draw the cour attention to the jenkins case it's a case from the circuit in which the court found that in light of fifth amendment warnings it's a particular defendant being misled about his target status was not a constitutional violation and so these cases don't just speak in the context of where there's no information about target status jane and shows that they also apply if someone is misled though again he wasn't regarding the rule of completeness the rule of completeness first of all it is not from hearsay rules this court held in the very same case that also does not apply to testimony that only cast doubt upon the reliability of a particular witness and in this particular case sex and want to emphasize things that were already in the record particularly with respect to the foundation for his knowledge not only with those within exhibit sixty six itself his grand jury testimony there are numerous references to the sort of guesswork that went into certain of his beliefs not as and defense closing argument goes on for seven pages on exactly this topic because there was so much evidence supporting that theory of the defense and so defended not only wasn't prejudiced within exhibit sixty six  wasn't credits more broadly and because of page limitations we brief this at a fairly high level i would encourage the court to look at the particular excerpts that are claimed to be required to be admitted defendant has claimed that almost every difference between exhibit sixty six in the second trial and exhibit forty eight in the first trial violated the rule of completeness and some of those examples it's not clear with that they violate any rule on any theory of anything for the excerpt ten which was referenced if it's at your one twenty two twenty three in the red line was just a question regarding exhibit three which was a emitted at trial and it was used only to refresh sections recollection about a date and he said he had seen it before that it number eleven is regarding exhibit eighteen which is a september ninth two thousand and eleven email chain with sterling hayley is it your win fifty to fifty nine and all sixteen was asked  for his interpretation of that email and in response he goes on alongst a little early but how the sheriff's department is all about innuendo and they're going to heat from other supervisors but the only admitted part of sex since testimony about that exhibit at trial was  identification of chris johnson as anthony brown that's it and finally very briefly regarding the withdrawal of the writ leave laid out again the theory that the sexton's actions were not material was covered in depth in both trials the withdrawal of the writ was a very small legally flawed version of that evidence it was properly excluded rashid indicates that that would not defeat materiality even if it were true and it ultimately had no effect on sex and ability to argue that his actions were not material in his view if the court has no further questions  you i don't want you to feel the need to talk so fast that you can't breathe now so assuming it will go a little bit over i really don't think i need much more than a minute two things i want to point out first of all the preservation of air claim if you look at page eleven of our reply brief us or says brown that's a case from this court which says that an objection to an obstruction apply to an instruction applies to all the defendants so i think that on the instructions we did preserve it as to all defendants i think judge because it is right as to the evidentiary rowing's but getting to the core issue here i really think the government has made it very simple for this court because of the answer they gave to the question which is that are these two states mutually inconsistent they think that they're not they think that you can have both an officer who is told to move anthony brown which is something he does all the time and that he thinks this is lawful because he's getting it from his superiors he's not a position to question them and this is seems to be objectively reasonable they say you can imagine circumstances both be doing that because you've been ordered to do it and think that it's lawful and be doing it corruptly and we say you cannot and i think you can if you can not is that just a logical problem though i mean i'm not sure if you're right i mean i have trouble getting my mind around any kind of dual intent in any context because it seems like if you have an illegal intent you have an illegal intent and if you don't you don't but if that tension is there why does the jury need to be told about that tension why isn't it just a logical problem that they can think about on their own and figure out whether they believe dual purpose is possible or not because having both and i think the case law makes that clear i think that barker makes that clear i think that smith versus ball today peterson and also the fear as they also explain that this is in the gates and that's what we need in this direction for the government says no you can have both those and again if we didn't get in this truck from that we're entitled to it's not subject to harmless error review that's on page forty five of our brief united states versus zynga we needed that instruction we didn't get it we got something that was this was day five this church never raised that before that's a complete guess it's just pulled out of thin air now that this juror was having a conflict with other jurors that's not pulled out of thin air that was that's a natural read of the circumstances and that's the read that the district court imposed from the beginning of the discussion regarding the the oceanographer preclusion issue it's it's impossible to say well this would have been cumulative while at the same time the government his proffer was of course very unfortunate think that's consistent with a fear of an indictment more than anything else but there was plenty of meat there and again coming back to the fact that if you get it excluded because it's vague or for any other reason you can't think capitalize on it by trying to present a picture to the jury that you know it was on  just a couple of points first on record preservation that are to footnote one the attorneys for thompson craig and joint each objection raised by any other objection and that many other defendant you know i think it's important if the what the government says is true about the law that if somebody is going to act can if somebody can both be obeying that and apparently lawful order and also have the intent to obstruc justice or make a false statement what we're going to have is we're going to have line deputies line investigators they're going to need to seek legal counsel do we really is that what we really want do we really want people who may be a little suspicious or maybe a little anxious and say jeep sorry sorry lieutenant i'm going to go talk to a lawyer because that is where that if if their view of the law is correct that is what we are looking at yourself are the questions i submit the government's response that they were aware that mr section was a target when he knew of a written acted i would direct the court's attention to government section of the record eighteen zero three again on november sixteenth before the grand jury testimony counsel in that case the court took no action because mr jenkins was told he was a subject and could become a target and that is certainly distinguishable between what happened here the government says some of mr sexton's guesswork w admitted before the trial that's great but we're talking again about his men's radio and by the movie those particular portions there's no valid reason to cut those portions you know continue there's any valid reason to get to cut those portions out except to make that testimony misleading before the jury in make them believe eroni mislead the mr sex and was talking more from a power of strength and lastly the government's position that the rich being withdrawn the knowledge that kept from the second jury was not material again there's no natural probable consequence for obstructing a grand jury on september seventh if the grand jury isn't even there and no longer requires the body to be brought to them that will submit