thank you your honor good morning your honor may it please the court my name is jason dix stein i represent the defendant appellant michael joseph murphy and it is my intention to reserve four minutes for  this case they absolutely knew that the jury was split eleven to one they knew that they were dismissing the holdout juror a matter of fact if you look at the excerpts of record and page thirty mr mcconville himself the prosecutor explains that it is abundantly up parent that the jury was split eleven to one and where you have a situation where the jury is split eleven to one you have the sort of situation that lopez your honor this is a situation that is tantamount to going with a non unanimous jury if you can stipulate to remove the holdout then there really is no difference between removing the holdout and accepting the eleven who asked for release from the case when the jury began deliberations because he had to attend to a different matter from a different state he stated on the record that everything is done except for taking the decision from the jury and therefore there was no problem in leaving behind the junior defense attorney the junior defense attorney mr o'sullivan admitted on the record he had never seen a situation like this so when he finally realized that the issue was one of unanimity rather than the issue being the removal of a non deliberating juror at that moment he came back and asked for a mistrial  finally realized that it was a human that the jury was not in fact split by someone who wouldn't deliberate but rather was split by a holdout no effort after  jury was split eleven one the prosecutor understood the situation and the judge judge sautner had an obligation to oversee the jury process want your unanimity because it appears from the record that he didn't realize until late in the game what the problem was and i think that it's very unlikely in light of the fact that his argument was that this was an issue of fundamental fairness attorney really didn't realize was in fact a constitutional issue we have here an unusual set of facts fortunately this doesn't come up very often but go back and look at lopez which actually identified these two says that if it had been the other which turns out to be the facts of our case that couldn't be waived your honor you're right that this is certainly a more subtle approach to the issue than lopez was however i think that was the judge that initiate here it's the parties that stipulate the dismissal of the jury of the juror well there are two points your honor to make in response to that the first is that even under a stipulated removal hundred twenty three b two there are two options one in which the stipulated removal is without cause and one in which they stipulated removal with cause twenty three b to be here we have stipulated removal that was clearly for clause for cause and in fact in the record and also in the government's additions to the excerpt of record in there  do it this way oh so the court has to approve the speech but the good cause requirement applies only the second where the court can do so why is the second as opposed to the first given the parties  i really think i have about the vibration going back and forth that you want to use you know from the record and you can see from the excerpts of record that individual stated that willing to deliberate not open to any additional information now this is during jury deliberations for the evidence and close before the jury is going to deliberate and then her opinion is deliberating and he stated on the record that he insisted that the stipulation say this is a stipulation based on the fact that she was not deliberating the moment that any additional note came back from the dismissed and the judge read into the record he realized that she in fact had been deliberating and he asked for a mistrial and i should point out that when that note came in it came in on me at least before the verdict was actually read into the record so at that point in time the judge could actually take the dismissed jurors note and rely on it based on the fact it was not being used and it is tantamount it is exactly the same thing as taking an eleven to one there's really no difference between taking the eleven to one jury verdict and dismissing the one and taking the remaining not open to any additional information of course of at this point the evidence was closed the case was submitted so i don't know what that means and then the next time says her  firm and says it will not change now isn't that a very strong signal to both lawyers united going to the stuff you lay him and also to the district judge that we had a situation here where there was an eleven to one split on the merits of the case your honor i believe that's the information that was available to everyone where the notes that were presented by the jury group prior to the note that came out after the juror was dismissed that information was available to the district court and the parties involved and in the context in which this note came out you know this is after i want to put in the context of the court can understand i was i actually tried the case so the jury got the case approximately friday afternoon no verdict they deliberated they were to come back on a tuesday came back on tuesday morning and the first around ten o'clock in the morning you know came out first now that indicated that there was a problem with one of the jurors not considering evidence now that was that that was the first three that was number one not number one that's a choose the morning number one comes out ok the jurors break for lunch next no comes out a note number two which says we'd like to read back of testimony ok so although the first no indicated that they somebody wasn't considering evidence the next note indicates that they want to read back the testimony so that and the testimony that they requested read back was the testimony of two very significant w a manning brian peters who's sold these parts in question in the case was about counterfeit aircraft parts of the air force mr peters was the one who sold the parts to the defendant and according to mr peters he said i told the defendant that the parts were no good and that the military when you use them i courage that offended to check with the military to see if they'd work that if ever they called me back and said they're ok so that was one part of the read back the other part was the defendant who said mr peters never told me anything mr peters never said there's anything wrong with these parts of facts that they're ok so the read back related to very critical information deliberation although the first note indicated that somebody wasn't considering evidence the next no was let's hear some more evidence and so that read the jurors not willing to deliberate and open to any additional information while in the context that comes on the heels of we're in the middle of a read back so i don't know what information can be gleaned other then perhaps a natural process within the jury room that it's a little contentious people want to get to the verdicts to continuing on so that's the context in which that note came out but then the next sentence after what you just referred to and opinion is firm and says it will not change yes now isn't that a rather clear signal that we have a jury split on the merits of your honor based indicate now that yes there was probably a split and we don't know which way the split was hard with that information not it wasn't just by the government and wasn't held by the district court upheld by all the parties armed with that information that's when the parties enter into a sticky lesson before judge tyler ever took the bench so that no it was in the courtroom when we all showed up on wednesday morning you know we read the notes and there was a discussion between the lawyers as to how with judge sautner took the bench we advise the judge your honor the parties have reached an agreement as to how to proceed with the notes about the non celebrity jerk and that agreement was to remove the intervene on the ground never came up and you know there's a lot of discussion outside of the record about what mr henderson did or didn't do but what's in the record is that before mr  heightened standard of invited here judged in that that's the context in which judge dollar was operating when she accepted the stipulation of the parties and you know you know to point to things after the facts point to the jury note that came later