claim and if there's time left on the clock then to pivot towards our sensing claims at the outset i think it's important to address the facts because important legal determinations flow from the facts can be assured that we've read the path thank you just to briefly summarize i know you said your honor that you read it but for the excerpts of record twenty four we have the judge the district judge clearly identifying journal thirty someone should be removed because defense counsel agreed with that assessment the government not only didn't disagree but attempted to add three more jurors to the district court's list the district court rejected that offer do you think it's clear from the jurors are we talking this is journal member thirty other do you think it's clear from the border with juror number thirty that that not specifically child pornography and hurt in his personal life and his work life and he said directly i think it was very hard for me to be fair in this case and the district court of course on appeal we were giving due deference to the district courts a termination a district court credited that found incredible both parties agreed and so now we have not only my opinion but we have a finding by the district court that journey over thirty was biased and should have been removed because well as i dated a district court intended to remove it appears from the record that the district court intended to remove the juror that's right from the panel but it didn't happen so what do we do with that if we have an indication the record that the that the district court intended to remove the juror for kong but didn't do so what do we do with the well i think my my interpretation of the record is that everybody simply dropped the ball trials busy trials messy juggling a lot of jurors and a lot of different issues all the same time there was a list of eight jurors that judge collins was trying to excuse and journal thirty simply slip through the cracks if we would be in a much different posture if district if the district court had at some point made a finding of rehabilitation and had reversed course and said no you know what i think after all journal or thirty can be fair and impartial so then all of a sudden we're going to say we're going to redo the trial i'm not even sure you get to that point that there's a lot of jurors there we all know that expressed some doubt but then they hear more about it and no one complains if the defense lawyer does not complain does not ask for challenge for a cause does not exercise a peremptory it seems that everybody was moving in that direction isn't this a little outside the reality of the trial to say now that this jerk poisoned the whole the whole trial i think it falls squarely within your honor the within the messages of the trial speaking to that issue and i think that that explains why there were questions about the jurors impartiality and subsequently other was actually a finding by the district court that the juror had could after all be fair and impartial and i was from the martinez martinez case and we have the opposite of that here so  defense counsel is sitting there and doesn't ask the question doesn't ask the judge to rehabilitate doesn't actually sighs a peremptory obviously the lawyer himself or herself was satisfied with the juror or the would have excused doesn't this record show much more likely that the juror was accepted by everybody and just that they have a problem one time and did not raise their hand with the other problems that people were satisfied i disagree on and i think what the record shows is that the both parties trusted the district court to follow through on its word that he was intending to dismissed juror number thirty and we know that because in all other seven jurors on the district court's list did ultimately get excuse how do we know what's in the record that says that you're speculating because the only finding that we have from the district court about this juror is that he was biased and should have been removed because there's no follow up finding so all points of the ball the pieces of the puzzle point to the fact record rather than a sumption from the record for the record shows a finding by the district judge that the juror should have been removed was excusable for a cause and that's the only finding in the record about the about the german it was excusable for cause parties accepted at face value that the judge when the jurors said i would have a very hard time being a fair impartial in this case due to personal aspects of my personal life and aspects of my work life so he gave a concrete basis  tied to his own personal experiences about why he was going to be a very hard time being a fair impartial his case and under the last week's decision in which drives home the point that jurors need to affirmatively declare that they can be fair and impartial that's a that's a and impartiality was i think it's going to be very hard for me and i think the last point i'd like to make because i am going to run out of time and like the reserve for a bottle is the other another important teaching from last week's case and protesting and butchering the name i apologize to that individual is that later rehabilitative questions actually have to address the question of impartiality so when we're talking when the subsequent questions relate simply to can you do you agree with the burden of proof do you agree with the presumption of innocence those questions don't speak directly to the question of impartiality and therefore i say as a matter of law cannot rehabilitate the journey owner of a new two thousand and nine decision in mitchell i interpret the decision as making a similar point and i think there's a quote juror and didn't even exercise a peremptory challenge i think it shows rather that he trusted to judge collins to to make the strike and his brain moved on to other aspects of the case into the new jersey if i could reserve the remainder of my time we'll hear from the government thank  please the court i'm karen from the district of arizona representing the government your honor of this court has never reversed a conviction in a case of jervy when there was not an objection below nor an opportunity that didn't have to be an objection did there if the judge had already said that this juror was biased in could not serve as a fair jury why would there be a need for an objection with that in light of that finding by the court well your honor first of all i don't know that the record is clear that the judge found bias strike already struck the juror from the panel well judges and parties acquiesce to this judge's strike all the time or and they go oh no they've often for various reasons and in this case it's clear that the juror thirties first response or initial response was only actually one response by him that's relevant and that's when he said it would be very difficult to be fair that was not there was no drilling down on that it was a vague initial response there was no additional digging on the issue and at the end of the group of jurors who indicated that they might have trouble with the nature of the charges the judge then summarized the list of the people that came forward never made an actual finding that there was b but all the other jurors that made it on the list were excused yeah yeah they were excused for giving similar answers which suggested that they couldn't be fair and impartial so i don't see where you're going with this argument well your honor i think that here we have to look at the record as a whole because although the judge initially clearly intended to excuse juror thirty he didn't and so the counsel didn't the transcript say that the judge stated he was intending to dismiss because the judge those jurors couldn't be fair because that's or said they could not be fair now because no matter the sand they couldn't be fair i'm looking at further excerpts a record eight to nine the court reporter stated that she discovered a transcription error involving the admission of the number of the number thirty from the list of jurors the judge stated he was intending to dismiss because they couldn't be fair that was the court's intention however in subsequent one of the year there were four questions some of which addressed specifically the issue of judging the case on its merits let it letting it rise or fall on its merits application of the evidence to the which question addressed the ability of the juror to be fair there were there was a final question on page one eleven where the court asked if there was anything else that the parties ought to know there was a you think that can be fairly r to address whether or not the juror could be fair after they had already been a determination by the judge that the juror could not be fair sure your honor in addition to that the intervening eleven references to the need to be fair and impartial that were made to the whole panel also should count towards the evaluation of whether two or thirty was actually biased on this record what we have is a series of negative responses to questions about judging the case on its merits respecting and applying the evidence to the rule of the rule of law to the evidence presented and many many could rehabilitate that juror well the question about this case must rise or fall on its own merits does anyone have a problem with that concept that was on page sixty directed direct was a direct specifically to juror number thirty no it wasn't in fact there wasn't any additional questioning of juror number thirty which is relevant to this court's decision and digital is probably the most on point here because in that case  i don't think so about whether it would affect her family had been killed by a drug dealer i don't think so about whether it would affect her ability to be impartial but then it was followed by well it would be on my mind in a little bit later or yes it will affect me at that specific questioning to that juror and in that case the court had not already made a determination that the juror could not be fear right the problem i have with the government's position in this case the court made a determination juror could not be fair the initial intention of the court to strike the juror may have been based on that assessment but what we have on this record the whole record shows that neither the court nor the parties by the time that why there was concluded still believe that juror posed a problem the fact that there was no strike no motion to excuse that juror before he was impaneled the fact that there was no that is not the same as stipulating to agreeing to the judge's initial direction is not the same a stipulating that there was bias here it doesn't matter if it was stipulated to or not the judge made the determination and the problem for your position is the other seven people who were listed by the judge were all stricken from the jury so to mean that's an indication that the judge intended to strike all eight of them i two even if you find an error and that there was bias which i submit is not supported by this court's precedent even if you find an error then we should still move to the fourth pronk of a long and a lot which is did this substantially affect the fairness or integrity of the verdict and you can tell on this record that it did not any error in this case did not affect or influence so some cases suggest that we don't do harm this area that it's structured area if a biased juror sits on the case what's your response to those cases well first of all there's a little bit of conflict as to that as as the court noted in mitchell that it's unclear but there's really no question whether it's structural or not the supreme court gave that very clear message and weaver and the although that was an ineffective assistance of counsel case the point made was the lack of opportunity to cure is the point that the court below must have an opportunity to cure and develop a record and that's why all of the cases that this court has ever reversed on the basis of jerk bias have been based on a clear record before below which was made in the context of an objection by counsel where we don't have that here we don't have a clear record we have many curative questions and we have only the initial statement that it would be very hard for him to be impartial never stating that he would not be able to be impartial what case do you have to support the proposition that harmless error applies when a bias juror has been allowed to sit on the case is harmless error analysis applies when a bias a juror has been allowed to sit on the case harmless error does not apply in the case where there was an a and an objection below i don't think it does the general proposition that if a bias juror is allowed to sit on the case we apply a harmless error to decide whether or not to reverse the case what case support sure your proposition that harmless error review applies to that circumstance well it's plain air review when there was an end objection below but i would support it for for well we have in this case a judge's finding that the jewett was biased so if if we take that finding from the district court judge what case allows us to apply harmless error review after a finding that a biased juror was allowed to sit on the case i'm not sure that there is such a case although alexander right on solace and also other cases involving structural air did still apply that four pronged test and a lot of they still even with structural error do apply it but there aren't cases like this one where there was no opportunity to cure and no objection on the record below thereby leaving an incomplete record and just one last question do you agree with your opponent that whatever concerns caused the judge to make the finding that this juror couldn't be fair do you agree that the bias that this jerk suppressed was against the defendant no i think that's not even clear from the record at all what i do you say that you think that just i mean he doesn't come out and say explicitly which side he would be against but given the context isn't it clear that he was expressing issues with  whatever else had happened in this life that it had something to do with maybe a child being molested or something well that would be speculation on this record because he did not specify but one thing that's interesting on page ninety two a question was asked to the entire panel  negative response biter thirty any of you ever either yourselves or a family member ever felt exploited or violated by images of yourself or family members on the internet and there was no response to that so the fact and he did say in h necessarily have to be on the internet that question applies specifically to the internet which would not cover in person i'm a less stations so that's fair but he did say in his initial response that it wasn't himself personally his language was not necessarily having the experience myself but directly or indirectly however you say it which i submit is a little bit confusing and certainly doesn't tell us anything about what his prior experience was and whether it biased him in either direction it's that big of a record and that is why there should have been and must have been an opportunity to cure and develop a further record before we can say that this was a error that there was actual bias and even as i said even if there was actual bias on the part of jury juror thirty here the record in this case with overwhelming evidence as confirmed by the quick  turnaround of the jury shows that any error did not contribute to all of the difficulty is that this person who is the four person of the jury which complicated even further well i would submit that the the four person is a clerical position and i did look there was one person is more than a clerical position they drive then the jury's decision in a lot of the way these take control of the jury in the jury room you know that i have not been on your honor but i do think that they say that mean they speak for the jury they organize the jury but their vote is no less or more important than any other one juror it is the same bullet it and there was one case that i found it was high yat it was cited by the defense in reply here where there was a four person that was a eged to be biased there was no discussion at all in that case about the fact that he was four percent about whether that was relevant or not relevant and in that case they also found that there was not bias for crying thank you counsel you four establishes the government's agreement that this individual should have been kicked off the jury now do we raise you should before this court the government is completely changed its tune the integrity of this court i think requires that the government bar the government from making that argument number two the this issue is preserve required because the judge has already made a ruling and elevates form over substance to require that i thought you had one more wrong and this is a situation doesn't arrives very often your honor i mean you know with a juror being found to have bias and ending up on the jury that's not actually it's been hard to find cases directly on point if i could squeeze in my last point i was this are you saying are you saying that if you're right and everything that happened you we would assume that if you made an objection for cause that it would have been out of online overruled well no your honor i think it would have been sustained potentially i tried to say it's an alternate universe i don't know what would have happened and i misunderstood so your point is that it was not necessary to make an objection because the court had i mean ready made a there preserved or whether you apply planar review it's impossible to identify trial prejudice from what by a soldier might have had inside the deliberation room i think even though you keep the court is allowed to apply plainer review to structural  generally this particular kind of structural error is not amenable to harmless error analysis and therefore not amenable to plan or review and i thank you counsel thank you thank you to both counsel for your helpful arguments in this case a case just argued is the made it court decision by the court the next case on the calendar for argument is united states versus johnson