alex little on behalf of the balance ricky linear in katrina when here please ask to reserve nine minutes for a bottle yes thank you it is very rare that i come before a panel that knows a case and a seen a case longer than i have the court is very aware the case has been up to you now i believe the th time once on direct appeal to through through emergency risks and now on the appeal from the rim or hearing proceedings through that process we think we've created a record which demonstrates that juror eleven demonstrated the sort of book behavior in which the court must imply a bias that repeatedly through the court hearings of the trial the deliberations  the room or process she repeatedly misstated the truth she repeatedly failed to follow the court's order again and again and again and she demonstrated that she could not be trusted at trial to be a impartial juror for that basis we believe my clients deserve a new trial it's not the only basis the district court at every step both before remain and after remain and fail entirely to this case in a manner which allowed my clients to make their claim under the member standard from the very st moment of the river hearing when the court issued an order that was immediately violated by juror eleven the most important juror in the whole process of the court well knew and then hid that contact the juror eleven have eighty eight nelson from us before the process demonstrated the court was not sort of proceeding in the fashion which would allow us to adjudicate my client your own i think that is a explanation which has no judicial precedent i don't think this court should credit it and i think it's outrageously dismissive of the court's role in adjudicating these sorts of disputes  that was i'll note a post hoc explanation many many months afterwards it was not given in the moment there was never any indication to us at that hearing that the court was waiting for us to stumble upon this topic of discussion and i think it's the sort of explanation that really belies belief frankly i don't think it's consistent with what we know about the adversarial process of the court's role in it but i think one of the concerns in this case in terms whether you need to show actual wrists on the part of juror can you address that yes i think that one we think we've done that i think that the actual bias is through repeated demonstrations that she's not truthful this is consistent with the search of the case in the nd circuit where the jurors were repeatedly lied during the rumor process about what had gone on previously here i think we've put in our opening brief you know seven different things that she did both by violating the court order and by allying on the stand her testimony you can go through yourselves you all will i'm sure have a great idea of the record but the things she said was and were not credible i think it's an expression of actual bias when you lie in process of a proceeding that to me i think this court can find actual bias it doesn't need to find implied bias but why does it show actual buyers as opposed to showing a lie juror well i think it shows actual bias particularly because she noted it in the last time she testified that she had been told by eighty eight nelson that the purpose of this hearing was to have the potential  overturn the conviction and so by lying about what's happening she has a motivation to prevent that from happening that is clear and apparent from the record and so the bias is she's trying to prevent this conviction from being overturned tragic there is no case like this case i will say that it and it's a political because and that perp in that those situations i think the juror can be presumed to be lying to to carry out that continued sort of violation of the court's orders when it gets on the jury here because we have a juror who has expressed that she understood that this whole rimmer process was about overturning the verdict it can be i think equally  where her purpose for a line is to sustain the conviction you know what she was originally lying about what she st had contact with eighty eight nelson about was one to learn the purpose of the hearing but then she comes and she testifies the st time the very beginning of this that she had no contact with anybody besides her husband and that you know is not true during the deliberations and so i think those cases they are different but the sort of thread close through them is this is a juror who wants this conviction to be sustained and so i think the same way that a juror who may want to get on the jury to do some damage to that judicial process can be applied to a juror who is trying to maintain a conviction  key focus this inquiry immediately violated the court's order before the rimmer hearing he should have notified the parties and allow us to get access for example to the text messages beforehand it wouldn't change the way we would have asked questions that would allow us to sort of conduct a cross examination potentially of jury levon more effectively to once he knew that she had violated the court's orders we would have been able to at that point before the hearing potentially subpoena and then preserve her web browsing history i think the the most likely concern we had was that she was researching the hearing the purpose of researching the hearing would be to subvert it and if we had access to that web browser history that show she was we're researching things of that sort we could confront with that and then put forth that you had a juror who was misbehaving in those ways after the theory he still waited months to allow us to do that did not use a proper technical service provider i mean i think the court's decision to sue a spontaneous not informed the parties to get the courts basically ickes staff to take pictures of this i mean this panel's already commented on how that was improper and then you know this juror she kept violating the court's orders throughout this process and no point they say you know i know you violated my orders please stop you give no sort of instruction to encourage her to follow his orders so when she destroys she loses the cell phone sheep pen we tried to destroy the laptop and she deletes the web browser history she doesn't think  say did juror eleven deprive them of a fair trial through extraneous influences is that is that a proper question to be asking i think absolutely is judge moore but i think that the way you answer that can absolutely look at rimmer hearing conduct you know if you look at her actual testimony judge jury eleven's testimony about what happened she lied about it she hid the contact with nelson she answers that question multiple times without revealing that and then she does not fully represent what actually happened there so if she is willing already to not be truthful about her conduct during deliberations and then she gave us an obstructive conduct later i think the inference which there a little bit of an outlier on what the standard so heavy you argue that you may the th circuit standard doesn't it will quire you to show her actual jury  projects i think that a juror who is unwilling to follow the court's hoarders who then lies when confronted with the fact that she violate the court's orders is a juror who should not be sitting on a panel and i think that's consistent with this court's precedent that even one juror who engages an external conversations about the case that are prejudicial and here i think they would be because she's now lied about them so i think you have to infer that she did that purposefully that demonstrates prejudice but i know that time's up but if you give me a moment i think i recognize this question is a difficult one and i think the prejudice here is it's a question is a difficult one to answer but it's difficult because i'm sure eleven's actions and because of the actions of the district court and the whole purpose of this line of cases is the understanding that defendants deserve a trial of jurors who are fair and impartial that's the whole purpose minute protection and i think when the public looks at a case like this both in the way it was tried and the way the rumor hearing took place and an affirmation of this conviction would seriously undermine the i think the public's belief in the criminal justice system because of the way it was handled every step by this tour and by this judge a lot of quick question that among the rating of the order indicated what your clients had  appeal was pending prior appellate counsel had moved for bail pending appeal it was denied this court and i think reversed it about a year after he had served and so he had served a year when this case is decided the convictions are reset of the question of sente e may it please the court my name is brian samson and i represent the united states the question i dream and it was whether any external influence affected cherry deliberations and here's what we know about that question all twelve jurors testified that they were not exposed to any external influence and they did not know of any juror who was exposed to external influence theresa nelson testified that she received a call from sure eleven but they did not discuss any details of the juror eleven likewise testified that she called nelson but they did not discuss any details of the case and she did not mention the phone call during deliberations now importantly those counts are all consistent and they all corroborate each other and they all point to the conclusion that there was no extra nl influence that affected jury deliberations welcomes him a little bit would because it's an ex turn  honor two points st there is no evidence of any such extremely influence beyond the phone call to the recent alson and we have teresa now since own account of that call in which she says she did not discuss details of the case well your honor i think this case perfectly illustrates the importance of to furring to the district court of our credibility as terminations because two people can look at this record and see very different things they just declared that mummy suspect at one time no two people can g to give me your position because it looks pretty clear to me that she yes you are and the district court too was clear eyed about the fact that juror levon had not completely complied with the orders and in fact was not completely forthcoming when she was st asked about her contact with nelson nevertheless the district court found her credible when she said she did not to any other outside research and i think that is the credibility of germination that is key and that this court always substantial deference to because of the nuances in the way that that testimony came to importantly though that testimony is not the only basis for concluding there is no external evidence or significant corroboration of her account in the record you know the other twelve jurors were asked whether anybody had any external influences and that at least eliminates the possibility that there was some change in her position they didn't observe anybody that came into deliberations and appeared to have done any outside research that mr samuel some to judge strength just point in the record doesn't it show that at least th line of reasoning whatever that could demonstrate that influence and we simply don't know and you ask yes on the one hand to believe her when she says she didn't  but she's got these instances where she asked been untruthful and assembled in the record and that's kind of a long rambling statement in question but you get where i'm kind of yes your honor and i detected two parts of that question i'd like to take them and turn to st refers to an incident during deliberations that apparently the jury was divided and then shortly after they were unanimous and the rem are hearing discussed that and revealed some of why that might be the four person said there was a juror five not sure eleven who initially was was reluctant to discuss a particular count he they she had a talk with him the next day he came in and he was willing to discuss that count and they were able to reach a verdict shortly thereafter so the rubber hearing did its purpose and explained why why that apparent anomaly happened as your point about i believe the other part of your question was that she she sure eleven violated some of these orders and wasn't completely  forthcoming this is not a case like dire like the nd circuit case like like the implied bias cases where a juror has been lying concealing some relationship with the litigation to get on the sherry this to the extent the implied bias doctrine even even survives in the th circuit it has been limited to a situation where there's there's a relationship with the litigation or the parties that would show some bias against the defendants this is a juror who who conceals that they had a relative who was murdered to get on a trial in a murder case there's nothing like that here and there's nothing that suggests that your eleven had it had any interest in the parties to litigation or would would be in any way on able to fulfill her duty to consider the argument but you know the the argument made by mr little is that you're a lemon seem to have managed this that a desire to protect the guilty verdict and you know the right to the the fair trial really belongs to to the defendant the court and the prosecutors have a role in helping to ensure that but t's not really what the real question in that i guess yes right or not i would just point out that the district court saw this case very differently yes it recognized that this was a person who made missteps yes she ate you know it took specific questioning to till she talked about the nelson phone call but it found that she was nevertheless that she was credible that she was unbiased that she was cooperative when presented with specific questioning i mean these are findings from the district court who through an extensive raemer proceeding was able to observe juror eleven multiple times and found that testimony to be persuasive and i think that is a finding that  as all credibility findings are it is the special province of the district court when if the question is whether the defendants had a meaningful opportunity  is the telephone the cell phone and the laptop the all of the events that transpired over a period of many many months where syria the juror weapon was sensually acting to deceive and acting to conceal any search history on her devices that would show that she had been seeking extraneous information during the course of the trial during the course of the remember hearing and souter it yes i am a meaningful opportunity does i mean a perfect opportunity so i believe there has to be more than then showing that things could have been better there has to be a deprivation of a meaningful opportunity to to prove bias and the defendants here had that let me take the issues you highlighted and turned you mention the delay in the ram or hearing that this court has previously held that  lay alone is not enough to surrender remember hearing insufficient that's the corrado case you mentioned the district courts failure to notify the parties about the text messages to nelson before the hearing it would have been preferable for the court to notify the parties absolutely but the nelson testified almost immediately at the hearing about those text messages those text messages were before if this was continuing to yes i would point out that at the rember hearing ciarn elson i'm sorry jer eleven was called she was removed from the stand there was a lunch break taken  the texts were retrieved from now since phone and then jury levin was recalled to the stand so there was that time to prepare and frame questions and sure levin was called to testify under oath months later at the end of the rammer hearing proceedings were again she was subjected to questions about her her preservation of data on or her contact about the room or hearing so there were multiple chances to to broach those issues with journal eleven and then with  collection of her her devices she did turn over her devices to the court the court performed a visual inspection which again was not ideal but it was far from worthless in  particular the cell phone had web browser history from the period before the remember hearing it had text messages from before the rumor hearing including the text messages from nelson that the court could compare and see that they were exactly the same  problem that various things had been jimmied no your honor i believe that it is true that the google take out didn't reveal any useful information but i don't think there was any evidence that she had deleted anything from that it just wasn't set to record is my understanding of that issue is that significantly different that wasn't set to record well it is to the forthcoming and i think that's exactly the kind of case that we should defer to a district court to make a credibility finding about whether this person was an unbiased sure and whether there was actually any external influence on the jury there was an ample decided at that meeting with the experts and i understand the judge gets to rule on what is the best way and what is the what he or she is going to what why how items to be exa we do in the next part trying meeting with an expert the court sit significantly the defendants did not seek any further forensic examination of the computer so to the to the extent they had any problem with how their forensic about that report was was many months later and after that was when the district defendant said they'd they requested no further forensic examination so they express their satisfaction with see the expert report after they had learned about the court's contact with the expert as you open a google account it would collect searched atta so you would expect some search data to be there that was not there and at some point it had been switched from kind of collection which was the default to not collecting that information all of that could have been done in the time between the two different passwords being given but it certainly was the testimony of the expert that that was missing and should have been there that also came on the heels of the court appointed experts saying that web history which she nothing to be found we had no reason to you know doubt that it could not be in fact we suggested to the court the google take out procedure hoping it might be on the cloud somewhere and that was fruitless as well i think all of this though to take it back to the very beginning is the testimony of eighty eight nelson was not that there was not external input or not there was sort of this is not a big deal it was that the jurors had called and said that there are some problems some issue happening and i need to know what to do it was an ad that's nelson's testimony it's six thousand nine hundred and ninety four dollars of the record that she was asking for what to do now nelson did not give her that information or at least testified that she did not give her that information what we don't know is what other steps juror eleven took during deliberations to answer that question for herself the meaningful opportunity for us to examine that was what the room or hearing was supposed to provide and when juror eleven and then it every step of the process obvious katyn and obstructed our clients were deprived of the opportunity to determine what that was what the prejudice was so i think there is a very clear line to our clients being denied a meaningful opportunity to make their claims with respect to the credibility of terminations i think is often important intelligence plainly what you think happened i think here the record is best read as a district court judge who from the moment this issue was raised to trial through the end of the rumor process was dead set on affirming this conviction if you go back to his original order this is  after he is for a fuse to tell the parties the defendants about this misconduct by the very juror and issue the issues in order on january th denying any subpoena of juror eleven whatsoever and he does that because says i believe or not withstanding the fact that she's multiple times change her testimony that day and then he says what even if her original statement for example one of the things she testified about nelson was made with an intent to deceive she later corrected her statement the same proceeding so it's not perjury he set the standard somehow that so long as she did not perjure herself it was ok we only started to go down this path once we filed the emergency writ of mandamus to ask for any discovery whatsoever so i think it's difficult to see this kind of fact finding process as anything other than every time the defendant sought to actually examine the credibility with some  then had to take that up on appeal or otherwise subject them separately it was then half given and then not given that is what this case looked like procedurally and i think if that's not a mismanagement of the fact finding process i can't imagine  experts and we put those before you on the motion to recuse which was in september of two thousand eight hundred as to why that should have been a basis for recusal and that's in that briefing there wasn't even one case discussed where the st circuit did recuse on that basis but the issue that came up wasn't the mistrial it was the refusal and so there's a different set of questions but that st circuit case does discuss why it's a problem i think there is nothing like this case where a district court judge before opening a river hearing to decide whether has acted improperly is given information that that juror has acted improperly and refuses to provide that to the defendants this is the st case like that if violates all principles of due process and we think that alone demonstrates that there was a