williams will be handling the improper cross examination and sentencing issues those are issues three through five and all be addressing him juror bias and  will be limiting my argument to mr could since the first issue that a juror bias issue and within that the actual bias question in less the court has other questions on either implied juror bias or on the improper expert testimony issue so the actual bias inquiry looks to the challenge jurors questions during forward year and if the jury expresses bias whether they later commit to set lay aside that bias and after fairly now here just as in the consolidates case the journo three was pressed several times on the issue of whether she'd be able to lay aside her prior experiences and she was never able to say that she could set aside those experiences she said she'd try she might be able to she'd want to but they didn't know if she could so we have this additional thing that gonzalez didn't have though of this promises of that later so this seems and the other is the later the later question that the government raised where the journey over three didn't raise her hand in answer to the question whether she had any trouble with the burden of proof  but even though there is not a case directly on point where there is this future promise i think in salis does it does give us guidance on this issue because in that case the court stated that when  unable to spite repeated questioning to assure a court that she can be impartial then the court can have no comfort that she's able to barely have this extra thing i mean you're right i think if you stop the clock but then said she's been impartial now the court is abdicating its gatekeeping role there and just saying the later you please come to me and let me know if your bias is affecting your deliberations now the problem with that is as as your honor pointed out during ember three never comes forward we don't know why she never comes forward it may be that she stopped caring it may be that she became invested in the child at trial and didn't want to be kicked off the jury it could be that her  decided she wanted to put mr kotecki in a way we don't know so that's an issue with kind of shifting it to the juror to make that determination herself at a later point in time it's kind of always on the juror though right i mean these questions always go to the juror confessing whether they're biased or not so it just shifts the time of it well your honor i disagree because the the difference here is that  juror theirs was honest in stating that she wasn't sure she'd be able to lay aside these previous experiences so we're coming from a point there there would be no issue if  the if she said you know i can lay the thought i had and the court came back and said ok well if you later have any concern about that please come back to me because then you're starting from a point of a juror's self reflection which we do rely on and that that juror would have said she'd be able to lay aside these biases but here we have a juror who in her own self reflection has been told she's not she's not sure she can do it  and and the judge essentially tells her you know that's fine well not really i mean the judge tell us if it turns out you can't she says i'll try and then the judge says ok well if it turns out you're trying doesn't work then tell us i mean maybe the that is a way to make sure that it's the same thing as the jurors saying i think i can i mean i think the practicalities of this situation here where a juror having to come forward on her own instead of being questioned by the court at a later time i think that makes it less likely she'll come forward i also think it may be pertinent i didn't emphasize this in the brief because they can anticipate that concern but the way the judge described the concern to the juror was if you're going to decide this case based on what happened to you and that is not really the question it's you know it's whether it's part of what's coming in there in the mix so for now relying on the jurors legal assessment later of whether she's impartial or not as opposed to these statements fleshed out in open court where you know the defense counsel can decide first address the error in the prosecution's cross examination of mr kotecki and specifically focusing on the joyal error and then i will click quickly turn to the sentencing issues mr who testified in his own defense at trial the version of his story at any time prior to trial and so we agreed that he was in error why was that not harmless first of all i'll note that it's the government's burden to show that  it's not harmless beyond a reasonable doubt because it's a constitutional error and i will also point to the numerous questions that were asked by the prosecutor i believe they were total of six and four different chunks in the brief but some of them were i mean are some that were not ok maybe and some that were ok there he did make statements before the miranda warning also that were inconsistent and those questions were ok so if we assume the government could have talked about that properly but just couldn't talk about the other it seems like this point could be made it also really wasn't emphasized in closing i'm just not sure i see why the improper questions became such a huge issue at this trial that it was harmful well i think the court is right that the government also asked permissibly about hi statements at the time of the search and comparing notes but the government asked six questions specifically about his failure to come forward at any time prior to trial even in the years long investigation and that that this case had so that was clearly implicating the time after miranda and although the government did not emphasize this in closing the government did bring it up produce that to the government again injecting missed in admissible hearsay at that point but failing to produce it until a year after the incident so even though in the line of questioning i would submit that it was extensive with six separate questions focusing on his failure to come forward at any time prior to trial to tell law enforcement the story the government took advantage of other opportunities to focus on the fact that he didn't come forward and in doing so the government implied i'm confused a little bit so  video point isn't part of the problem of asking the questions about why he didn't tell the story that's a separate issue isn't it it is a separate issue but in the reply in the foot no i said this is also part of the of error because the government is basically saying hey the evidence that supports your story you never brought that forward to us why isn't this a prior inconsistent statement because what the government was doing was not comparing stories there was no prior inconsistent statement after he received miranda warnings through trial there was only silence but there was one yes do you want to you want to use doyle to make this is the oil violation the government argues well we don't need to get the do well this is merely a prior inconsistent statement but the government wholly ignores the six questions that i asked mr pitch at c n n about his failure to come forward at any time prior to trial and those are the only questions that are before the co the government wants to point to the questions that given that there was the prior inconsistent statement and he hadn't come forward with the video i mean i would think that hurts you on the heart with this so he never came for the video he has the prior inconsistent statements so i just i'm not sure why the jury is going to be persuaded by these silence questions when there are these big problems with his story other ries well the not coming forward with the video is part of the silence issue because the government is basically implying that the defendant had a duty to come forward and produce to the government the video evidence he could have waited as he properly did until producing a closer to trial so what was the question why didn't you give us the video or the question is why didn't you tell the story those seem different to me that well quote it's they're related because the government saying you never told this story and you never gave us the evidence about your story so it's it's basically you never gave us the video of doyle i believe that it  supports the harm fullness of that enjoy an error because the government is saying you never told us this story and also you never came forward and provided the video that supports your story implying that he had a duty to come forward and provide the video also that he had a duty to come forward and provide this story to the government and he did it at the to doyle teaches that it is fundamentally unfair to tell a defendant that he has the right to remain silent  therefore implicitly assuring him that he won't be penalize for his silence and then to question him a trial why it was that he was silent and invite the jury to find that his story is now fabricated because he didn't come forward with a story or with evidence supporting the story what was the note the jury saw might be wrong yes yes thank you your honor the jury was also hung up on the intent issue the jury sent a note asking what specifically the evidence was that they could  consider in trying to decide whether mr coach at sea and had the intent and here as cases have found when credibility is the main point there were there was no issue there was no dispute as to whether he possessed the devices the only dispute was why he possessed the devices and it hinged on whether or not the jury believed him and here particularly when compounded with all of the errors that the government made and injecting it in miscible hearsay to destroy his credibility and appropriate please the court scot paty for the united states i'd like to address the first vick conviction issues then if there's any time left over for sensing i know we can get to that previously but i'll start with the conviction as far as juror bias goes you honour's there was no actual or implied bias here in the district court did not air and seating journal for three the defendant did not meet its burden as it has the burden of proving bias here and did not meet its burden and that conclusion is supported both by this circuit precedent as well as by common sense i think it's fair to say unfortunately in this day and age that identity theft being the victim of identity theft is not out of the ordinary might not be uncommon but it could still be traumatic it can and in this situation i think what we have to look for is what the district court did in response to that in the district court took its responsibility seriously as the candidates are quite asked could you put it aside and she never says i can't so how do we know it's law went into a full some explanation of the fairness impartiality and if you're not to you're not to basically your evaluation this case is not to be predicated on what may have happened to you just poured into the into that and then affirmative yes i would from mr it was yes i would in response to the district court's request that if any point in the proceedings you find after the district instructed the jury you're not to allow your prior to do you have any case i'm going to ask you this is cases like alexander cases like martinez martinez where the district court is in a unique position to ascertain juror credibility injured demeanor in a very fast moving fact intensity not so ok we defer to cocaine use the jury not case it exhibited negative body language regarding ability to to apply presumptions like the district court in this case instructed on presumptions of innocence burden of proof and that we just don't have here it's you know it's different about this case i mean eat you can you can see that the district court after the series of questions to which she hadn't answered affirmatively if she could put it aside sort of kept her around kept her around and the a and then subsequent to that you know he didn't know this record to know whether defense counsel was going to make a challenge for cause subsequent to that the challenge for cause comes so you have the record when you still have you'll tell us later which is sort of just an admonition to the jury if you're your main if you get selected will you tell us later but then we have to evaluate the the challenge based on what she said and didn't say well we do your honor and i think again that affirmative statement that she would understood that she understood what the district was asking her to do i think that's part of the evaluation i also also think had been answered the question affirmatively as of that point when the challenge was well something like i'll try what is what we have here it may be again it's i think here looking at the semantic differences it is different correct but i don't think that in light of the district courts colloquy here explanation of understanding of an explanation of fairness impartiality and follow up what that suggests a explanation later about like burden of proof that really spoke to putting aside all outside information that you might have with your own experience well i think it's implicit in the nature of burden of proof and presumption the implicit fairness and that your to the well what did the judge say that would explain that to a juror who's not a lawyer doesn't really know what those terms mean i mean i'm not sure the colloquy that you're relying on is so helpful in this regard i mean i think implicit in the nature of those two those two legal principles of burden of proof and presumption of innocence that this this defendant who's in front of you here is presumed innocent and is you know you're not to you not to place any and i think again it's a honor it's not explicit i think you have to look to the animating principles behind those doctrines and that is the goes back to what the first thing the judge said you're to judge this case based on the evidence that's presented to you in court and not on your preconceived not in your past experiences not in any preconceived notion you have i think it's implicit in those it's not explicit but i think it is implicit with that i'd like to to move to a the prosecutor probing inconsistency in the defendant's statement this was not a defendant who had for me because i'm hazy on the details what were the prior inconsistent statements so this was a defendant who spoke this is not infinite who invoked remained silent a definitive spoke every time he encountered law enforcement so inconsistency is here when he mentioned at the time of the search he said i don't know anything about the cars in my tree in the trash or in my house now the the fact the inconsistency is well that it doesn't make any sense you say you don't know anything about this with the statement you kind of were yes that the statement there is that he had no knowledge of cards counterfeit cards in his trash or in his house that was a statement that he made to the agents at the time of the search now this is not some game on the back of cards and absolutely yes your honor and that is directly inconsistent with his statement at trial which said oh all of this fraudulent stuff meant to i meant to cut it off i had in the context of his frankly prosperous story i had over a couple hours i meant to cut all this stuff up but i spread it all over my house instead so it is directly inconsistent with that statement i don't know anything about that with  statement a trial oh yeah a known fraudster gave me that but you can't the prosecution can be you never came forward at any point you know over the years of this investigation that's not a proper question when there's years of posts look to the scope of the prosecutor's questions to determine whether it's an impermissible comment on posts around a silence or whether it's in fact probing inconsistent statements and here the context which is very important is this the challenge all of the channels questions take place in a thirty page subsection of one hundred ten page cross examination those thirty pages excerpts of the record to twenty nine to two fifty nine and and in the course of those thirty pages the prosecutor is predominantly diving  and probing into what the defendant did and what the defendant said at the time of the search and here notably what that the defendant did not say anything about this bag of fraud so how i don't understand how questions about all the years  tell us how you interpret questions about how the years that have passed as about the search well it's in the context of it of an inquiry a broader in korea about the search yes that does implicate a broader timeframe i agree your honor it does but i don't think that's where it stops and i think that the increase again in those cases calls us to look broader to what the prosecutor was doing there and here i think it was probing in those thirty pages in consistencies but to the extent the court finds that those were problematic questions it goes to your honor's point thirty six page thirty seven or four instances where he says i didn't say anything because of counsel so for instances in the course of one hundred ten page cross of a five day trial the government thinks that that's not in any started an egregious amount of references here the second prong is was it ever argued to the jury and inference of guilt based on silence never as as your honor pointed out it was never argued at closing and it was never brought up again the third prong is the weight of the evidence in the case against the defendant didn't hear the great weight of the evidence think that that's you know as far is as the jury note and intent goes fraud cases as i'm sure the court is aware it's always comes down to intent i mean it's a the jury's always struggle with that prong and i don't think that a jury note coming back asking what intent to harmlessness error analysis i think that the that the government should to court again find that certain questions were problematic that as i said i don't think i'm saying when you when you all bear the burden of convincing us beyond a reasonable doubt that here was harm us i mean it just seems to me you pretty much do need to have an open and shut case and doesn't the juror not suggest that there was not it wasn't quite that clear cut and that that the jurors at least were or i don't know if struggling is the right word but they had  some questions about the only contested issue in the case but i think it ultimately they went back to the jurors as they struggled went back to the evidence in this case and the evidence was it was strong in the government intends overwhelming on defendant's guilt it was the physical level the cards in the to make a run skimmer the fact that the defendant went back in the one item that he went back to retrieve in that bag which allegedly was delivered the day before that govern contents fabricated the one item he went back for a skimming device  have thirteen hundred dollars in cash the defendant and have a job we have a fraud making fun of a fraud a cartoon on his phone and said help fight fraud donate your credit card and then we have all of his statements not that hard to find if you know where to look counterfeit card making equipment why am i being charged he known associate of that and had received counterfeit cards from him on one occasion before in his name we have his statements that and again it comes back to the story this completely fabricated story which in order to believe you thank your honor i want to just jump in with the joy of error and as they did in the brief the prosecution focuses on the questions that were asked at the time of the search again those are not at issue it's what the government does in going forward to ask the six additional questions that it does and the court in andersen which how which distinguished between to doyle error and permissible prior inconsistent statement questioning the distinction is were questions designed to draw meaning from silence and hear that there's no other conclusion to be made when the prosecutor is asking isn't it true that you fail to come forward at any time prior to today you've had multiple opportunities to do so in this years long investigation you failed to do so this court or the supreme court in the bracht case found a clear doyle error and in doing so  stated that the defendant there had made statements to law enforcement prior to miranda and then sometime later was actually arrested for the offense and there the court said look this this sets up the principles and doyle and anderson versus charles nicely because the prosecution was totally within its right to ask him about his failure to say anything when he met up with law enforcement the first time but the prosecution cross the doyle lie when it further when it went further and asked it about the silence after that point in time or more generally for his failure to come forward with his version of events at any time before trial the government is trying to impeach him on disease said something earlier that he didn't know about anything and why if you knew about this bag being given to you by a third party didn't you tell us that that's and why didn't you tell us then it is appropriate but the government crosses well over the doyle why and when it says and in fact you've never come forward before today and told law enforcement anything in this years long investigation you've never come for six different times and then just return to the harmlessness all of the evidence that was cited by the prosecution was contested by his testimony and the version of events that he gave there there was no issue  noticed that he possessed these items or that he knew that he possessed these items the only dispute was why he possessed these items and this court in foster and crudo cited in the briefs state that a constitutional error that goes to the defendant's credibility is usually not harmless where his theory of the defense of the case is plausible even if not particularly compelling thank