good morning your honor may i please the court my name is michael doyle and i'm here representing the defendant richard berger instruction next party instruction in this case that the jurors were to reconsider their positions and otherwise if they fail to do that it would be acting like the have feels and mccoys and would not be conducive to a final conclusion was coercive the instruction never should have been given such an instruction never should have been for the following reason the court stated unequivocally it would not give an allen instruction it went in it did when the court came back the court stated i departed from the script that conclusion is correct we can study the transcript as much as we want the court gave a preview of what it wanted to say after much discussion with counsel as to what he would say the court when he in gave the allen instruction came back  presence that is the finding of the district court we don't have a case where the district court said oh yes you gave me permission to say everything i went in there we have exactly the opposite a court coming back out and saying i departed from what we agreed i beyond reasonable doubt that it was harmless there and let me tell you why i think the government hasn't made that shine and why they can't make that shot and part of a has to do with the nature of the language that the court used and the way it was directed in the jury room i believe there are two coercive aspects of this instruction that created a clear risk of coercion that is all we would need to establish to show that you cannot say beyond reasonable doubt that there was no prejudice from what occurred in the jury room on the president's issue i do not have to show that the instruction violated this court standards for the allen charge although i respectfully submit that it did and will argue that i don't have to show that in order to establish that the government has demonstrated has not demonstrated that there was harmless beyond reasonable doubt let's go back a second to what's wrong with this allen charge even here on earth if you take it all in context and everything he to the very he says well we can't ask you to do much more than being sincere even if they we can't ask you any more than being since he says if you're sincere we can't ask much more than that and then he went on to ask more than that he went you should reconsider your position it wouldn't be wrong for you to reconsider it if you can be convinced that perhaps your position was not accurate or that it could be wrong you have to have that state of mind he otherwise it's going to be like the happy eels and mccoys it's not going to be promoted of a final conclusion no such language occurs in any approved allen charge ever that violates one of the most fundamental pre allen charge the not expressed any criticism of the jury or the jurors inability to reach agreement we can urge them to try and listen to each other and see if they can't come up with a conscientious decision but we anything wrong for a jerk to cause a mistrial that is a bona fide and lawful outcome of a proceeding and the jurors cannot be criticized for the fact that that's what's happened and to do that is before the judge went into talk of the jury when he was talking to counsel he said juror room is under a lot of heat she's expressing pressure she appears to be expressing pressure from the position she's taken she surmised that from what evidence he knew he says that on the record in the colloquy with counsel when he goes into talk to the jurors her remarks tend to confirm that she was the only juror who said there are people who are dead set on both sides of this issue he was talking about under she was under heat because of childcare considerations he she needs said that she was raising the point of wanting days off because she was experiencing heat in the jury room she wanted relief from that he he thought because of the pressure because of the position she was taking in the jury room that is the conclusion he reached and stated on the record before he went in there she wants some time off but the reason she wants some time off  reference to there being emotional outburst in there being a need to intervene on that basis and he knows that you are requesting time off and they well know for all we know who the who the outburst were coming from so that's what we do not know that you we do know that based on the information available to him that was the surmise that he reached which is a relevant consideration of this court's case law we never know what jurors are actually thinking we form it ourselves from asking and factoring that into the analysis so what we're always doing is dealing with the surmises of the of the court and the parties when he when she said she was the only juror who said i've made up my mind and i'm not going to change my vote their mind and not going to change it that was juror room when the court came out and described to counsel what had happened on the record the judge said well a juror or maybe several jurors blurted out spontaneously respect to those of you who reached a particular conclusion and that you will not change your mind it wouldn't be wrong for you to reconsider your position if you can be convinced that perhaps your position was not accurate that it could be wrong and you have to have that state of mind throughout the liberation so that's to keep an open state of mind otherwise it's going to be like t that the jury still have not received all the evidence and therefore could not say we're stuck on things rather everything is still undecided completely and then i think the judge made the comment today correct your view but that is why we say it focused on jersey roof she was the only one indicating she has made her mind up she's not going to change her mind and this comment here would be understood by everyone in the room to be a response to what she said not some talk about the judge having conducted a survey of who thinks the liberation could be more useful and wouldn't and there's only one that's left we don't actually know that that jury decided was the hang was the holdout vote we do not know that we forbidden ourselves from knowing that and under the present standard which is what we've got to work with you know the question is can the government show that beyond a reasonable doubt this had no impact on juror that she wa the holdout juror that this had no effect on her instruction directed specifically to her and being critical of the jury if they couldn't reach a decision that's the question beyond a reasonable doubt can we say this had no impact and i submit that is impossible to say look a suggest you could say such a thing and the case and i do believe the record makes very clear that had counsel been present this instruction would not have been given the judge so he wouldn't give such an instruction  wouldn't have given in a roni is instruction like this that used language that just comes out of nowhere if you consulted with counsel and said i really think we need an allen instruction this would not be the form of it so the question is can we say beyond reasonable on that curative instruction did not address and i would submit could not aggressive the moral condemnation the suggestion that there's something wrong in doing this the judge goes into chambers and says up close and personal if you can't reach a resolution it's like the way to address that question and i don't think that instruction can be read or construed as having solved that problem certainly beyond reasonable doubt which is the standard you tell giving you know this but i don't think there's any way in the world that that terrible thing that can be arrayed i believe you're on about is what we did we came in we moved for a mistrial we said and i think our diagnosis was exactly correct you given the worst parts of the allen charge incorrectly and not the best parts objection to the action that was given and it's a cure to try to use neither spoke to the mayor of a modified form there's also no way of knowing for example whether the jury had already reached a verdict in between the time that the judge gave the improper instructions and we were able to come in with a proposed curative instruction beyond reasonable doubt the government cannot possibly say that the cured instruction just took care of all the ills and they don't even argue that in their briefs i really want to turn to one quick point on the restoration orders i'm going to run out of time and i want to little bit of  really comes to make this clear enough to the court how wrong this calculation goes from the very beginning and it did in my view i think we spent far too much time talking about the details of all the ways went wrong with the court doesn't ultimately need to reach it only would have to and in the event of the conviction was confirmed the government's theory and the core story below was the first certain number of borrowing base a terrific it's there had been a fraud with respect to what's called b ever borrowed any more than that so if he overcame to be inventory by a million dollars or ten million dollars ron did million dollars he would make no difference beyond a million dollars that he could borrow and there's no allegation he ever went above that indeed the government's theory was that it was only overstated to be spending about six hundred thousand dollars worth of borrowing that is not from that that could not cause three million dollars worth of losses it is impossible it didn't even accepting everything the government says we are obligated to do improve what they proved was that he was overdrawn by six hundred thousand dollars on this line of credit it couldn't go above a million for a v inventory and has only got you can only borrow more money and be in the tray if you pay that off an embargo back again but you can never go up to three million dollars so you could never ever get through to an award like that the court should have started with how much money did mr berger manage to obtain that number was know you know they have welfare mothers that are there to take a check for a few hundred dollars a lot more time than that as a result of falsely overstating the big inventory he was able to borrow more news accounts receivable or more need a inventory and for the count of consumption there was not even any allegation that the other other counts in which there was no verdict and the court did not consider those in the government's calculation wasn't based on those the government has to just sit here that maybe restitution order could have been based on that but they haven't even made  calculation here nobody ever has and i don't think we can affirm this clearly erroneous calculation on the grounds that maybe the government could come up with some other calculation which they haven't done on some other counts which weren't proven weren't accepted by the mccoys as the court surely has noted one of the things that the judge pointed out in suggesting that it might be worthwhile for him to meet with the jury without counsel present is that he had heard there were emotional outbursts in the jury room and he indicated clearly that one of his intentions was to calm people down to get them to look at the evidence with a rational mind and also to remind them about the search for truth we would submit that the the scope of the weight to the scope of the waiver of presidents and there was clearly a personal waiver present as well counsel's waiver have to be viewed from the standpoint of what the subject matter that was previewed was that subject matter involved calming the jury down reminding them what this was all about a search for truth as well as addressing scheduling conflicts accordingly counsel should have expected that there could have been remarks about not don't that because they were emotional the judge was trying to calm the jury down that somehow that was a violation of the right to presence makes no sense the second argument is that that there was a violation because the judge assured them that he didn't intend to allen a notion that the jury is being pushed to reach unanimous verdict well in this case the jury reached unanimous verdict on twenty percent of the counts before the jury was comfortable shredding documents saying i'm going to go to jail on count thirty which was falsifying books and records and the jury hung on that count against bonny met we would submit if there was a pressure to reach a unanimous verdict of the court really needs to consider why the jury was comfortable returning hung verdicts on eighty percent of the council we don't believe and not only that the door repeated instructions not to rush the verdict take as much time as you want and as your honour's pointed out there was the corrective instruction so there was there was indeed a a waiver of the rights of presidents  on this record it would not have happened absent a way right and given the waiver and the scope of the waiver and the judge's description of what he did by acknowledging that he went beyond the script he does in effect told us that he has gone beyond the waiver and i addressed that yes you mean what i think the judge did here and  erring on the side of i don't erring on the side of caution he said i may have gone beyond the script he wanted to give it he wanted to make sure that counsel was aware of what had happened and peeped immediately provided a transcript and allowed for a corrective instruction which makes and that is that that distinguishes this case from jepson which is what focuses on the giving it in the other cases where there was improper x party communications of this sort of the defendant defendant don't find out about until after the after the records on steel which was not true in this case but we are faced with we are faced with with what we have in the judge having some scenes in expressly saying i went beyond the script and felt either compelled or at least comfortable in trying to  mine the bail by the instruction true well your honor right i would submit if you look at what the judge said he said i may have gone beyond the script and then he said and then in explaining how he may have gone he said  described it and he certainly i think the judge did the correct thing which was to order up a transcript over the lunch hour i understand that but i don't think the judge made a finding that he went beyond the script i would i would disagree with that well if i boldly assert that he did what is your contradiction my contradiction if you look at what he stated he was going to do which included calming the jury  down instructing the jury on the search what the search for truth means and as well as addressing scheduling conflicts everything he did fell within the ambit of that the search for truth involves the willing and i would submit that what he told the jury where he thought he went beyond the script was he told the jury perhaps if you bill if if you find that you are wrong and your first you do you should be prepared to change your views now who wouldn't agree with that if you if you think that you're wrong well that might be good enough in the presence of lawyers but we have a situation where we have first of all the issue of the right to be present and the waiver of that right to be present coupled with the issue of what he said all along the lines of what is either characterized as an allen charge or not now in retrospect this should never have happened do we agree on that or would you have have counsel and the defendant present because then you don't have an effect i cannot conceive of a prosecutor consenting to this if you news at the words in this transcript we're going to  equal to you he probably wouldn't consent either so what does that tell us about the validity of the consent now that's the problem and then as far as i get the picture this defendant moved for a mistrial just as soon as he learn about it and that motion for a mistrial was was denied then he resorts to requested instructions that was given and you do not contend that by requesting an instruction he somehow waived any position that he had to you no no that would only go into the total picture as to whether or not we can find that somehow to be harmless or right well we had a i would submit that on this record we had if you look at the harmless act there are standard we would submit that the record shows well beyond a reasonable doubt that there was that the error was harmless and if you look at the way this court analyzed this issue raised in it where they had a similar situation where there was an ex parte contact that wasn't reported there was no clarifying instruction given there was no reminder that you shouldn't give up your belief simply to reach a unanimous verdict in phrasing it was found to be harmful where the judge told the jury to keep deliberating it was found to be harmless beyond a reasonable doubt because the factors with the factors here are much stronger because there was a corrective instruction and i might point out that not only did the judge remind the jurors in a corrective instruction on the same day a few hours later that they shouldn't they shouldn't give up their views just to heed and he characterized everything he said before it wasn't just one more thing he said at the time he said these other things he said everything he said before let me just tell you about what i said before reaching back to what he said previously i never meant to tell you you should give up your views to reach a verdict and then he told them and if you're deadlocked come back and tell me you're deadlocked those that none of that happened in phrase and where the court found that it was to harmless beyond a reasonable doubt in addition and phrase and i think the jury came back three and a half hours later in this case the jury came back a day later and those were also factors for i would also submit to you if you're looking at harmless beyond a reasonable doubt i would submit the fact that the judge instructed the jury if you're deadlocked come back and tell me or deadlocked that's what the jury did the jury came back and told them they w wrote stated before the judge said anything to the jury and i cited the sum paid sixteen my brief was in the transcript there won't be resolution to a lot that's before the judge said anything duros that there won't be percent of the counts the notion that the judge's instructions whether certainly it would have been better and i would agree with your honor that it would have been better had defendant and counsel been present in this circumstance and this court is clear that in these sorts of eck party situations it's it's important to have counsel and defendant present at least counsel present but in this situation there is no evidence of coercion there was evidently even before the judge started talking to the jury agreement as to some and there is no case involving in permissible judicial courtroom where there are hung jury verdicts on eighty percent of the counts we would submit it's clear beyond a reasonable doubt that this jury was very comfortable not reaching unanimity and if they were comfortable before that they had when they talked to the judge and then when the judge reminded them on the same day that you know what if you're hung up you've just come back and tell me you're hung up well that you know of days later after they went home for the weekend they came back they deliberated another four hours and they told the judge they couldn't reach verdicts on forty five out of fifty seven outstanding counts so we would submit that you know given the fact that there was a corrective instruction that very close to the model corrective instruction namely don't give up your beliefs just to reach a verdict that that was given the same day that the jury was instructed that they could return deadlock that the jury thought that there were over almost a full day from the time the offending comments occurred until the time that the verdict was returned that there were selective verdicts that on some of the same counts where  charged the jury hung as to one defendant and not us to another we would submit we amply meet our burden of proving that it's harmless beyond a reasonable doubt we would also submit however that i did it as a legal matter where that of setting aside the issue of waiver as a legal matter in snyder versus massachusetts justice cardoza taught analyzing the right to presence stated you know when you're talking about proceedings after a trial where there is no confrontation search for truth and justice and then the judge had that conversation in a good faith basically did what he told them he was going to do but was somewhat concerned that you know he may have done something that was a little bit that that does not constitute a violation of the of the due process clause in this on these facts we would not concede that there was a violation of due process and based on snyder and based on the united states versus gag but setting that  aside if the court found that there was a violation of due process we would submit that we amply meet our burden of showing that that whatever prep whatever error occurred was harmless beyond a reasonable  requested instruction should not we focused on that ruling and if that ruling was correct when it was media so ok if it was wrong when it was made are you arguing that somehow by requesting the instruction and the court giving the instruction that it somehow tippers whether or not that ruling is correct or not you follow  and the judge ruled that that ruling can be right or wrong but now you have the benefit of saying well everything is all right because this defendant you know that we in whatever for whatever motive and effort to protect these rights are white whatever he was trying to do requested an instruction that the judge gave him curate everything you follow me yes now should we say to a defendant if you want us to rule on whether or not that motion now do you follow yes all right now do you think that this defendant gave up anything by requesting that instruction and getting without anything except as a gateway to anything but i think frankly that the record because of the violation of the right to presidents which based on a due process clause in the circumstances is analyzed under a harmless error standard as a strategic matter had the defendant thought he had a slam  dunk he could have not requested a corrective instruction and i think the record would have been better better for him had he not done so but i don't think the court should should reach the issue now based on the record we have  e i think the last clear you have to analyze is under harm with there so you do not necessarily feel compelled to argue that the that the order dinner in the motion for a mistrial is correct no i believe it was correctly argued that at the time because as as we pointed out in our grief first of all that there was a an instruction that was given to begin with which of my it was conformed to ninth circuit non structured i believe seven point one on the duty to deliberate and we took the position that what the judge had done in the x part of communication in any event was simply reminding them of their duty to deliberate it wasn't an allen charge in the worst form they also were arguing on the bit their principal focus is i recall is there and the court can obviously review the transcript now but my recollection is the mistrial was based on the notion that the burden had shifted which we didn't we believe that the jury had been instructed on the burden  and correctly and didn't actually have to be instructed again on the burden in the case law states that could if i have answered your question yes but could i just address very briefly the issue of restitution is anybody yeah s and that the case law on the ninth circuit is clear well first of all the issue of restitution is governed by standard of preponderance that you don't just look at what the defendant was what underly that the offenses of conviction in this case the judge's restitution order was based on an effort not to we took the position below that he should have restitution been eight point four million which is the total amount the banks lost the court aleck did not to go with eight point four million which it legally could have and ended up with three point one million basically by parsing the total amount that was lost that the gross amount of the loan outstanding at the time the company went bankrupt was thirteen point three million and it focused on borrowing base certificates underlying accounts of conviction against which the banks are basically about five million and then the court gave them credit for about thirty percent of that because at the end of the conspiracy the banks recovered about thirty percent so it took thirty it took sixty percent of five million and came up with about three million we think that's a perfectly reasonable determination of restitution to restitution could have been ordered in the full amount because the defendant was  victed of the conspiracy but the court used the reasonable method focusing just on the moneys advance against borrowing base certificates underlying counts of convictions so the and you know as far as their emphasis on inventory in this in that there is no basis for that first of all there weren't any special verdicts on inventory secondly under restitution the court is entitle to consider conduct that isn't in compas in the count's a conviction there was ample evidence that the defendants lied about which was called the brazil transaction and that they counsel argues for example that even on the counts of conviction that there were no accounts receivable fraud with regard to that well if you go back to the september thirtieth and the december thirty one thousand nine hundred ninety six borrowing base certificate also involve pre billing and amount over a million dollars so it's not it doesn't the judge the court was neither required to simply consider the inventory based on what it actually did nor under the law because the judge can consider the full scope of wrongdoing in compas by the conspiracy so i don't know that i mean this sort of condensed argument all right you take issue ok and part of that and i think for the purposes of restitution i mean that the judge actually cut outs based on a rule twenty nine motion to theories of the government's case which the court could have considered and was entitle to consider and we would submit the evidence supporting it would have supported for the purposes of restitution thank you ok thank you very much and do i get a review on my voice now or you know it's it's correct and there's actually no reason to think that a council in present a different direction would have been given can't possibly go there here thinking it's a harmless error the standard we're talking about which i don't think becomes really grapples with is no possibility of prejudice that the standard you can't possibly get there as an illustration of that look at the way we're having to parse the remarks here to try and reconstruct the history and say there's no prejudice well juror rose said there won't be decisions on a lot and that means she's not there will be decisions on some things and not look things and therefore we can tell beyond reasonable doubt mind you that this had no impact on her well we're putting an awful lot on a transcript of an informal conversation we're early on we're all all for all we know she said while the rank of the agreement a lot what does that mean we've already reached agreement on some things and i think we are doesn't mean anything at all we're badly divided and that's what this record shows this is a badly divided jury on virtually every count here and there's no possibility coming in say we can tell beyond reasonable doubt discourse instruction up close in person with the jurors had no impact the court's good faith is not my question we've never questioned it it's not remotely relevant to what the court has to decide i think you want to get to white it's a question of what did he do you can see evidence in the record here the court understood it had departed from the script the court didn't say i may have departed from the script so jurors may have departed from the script when they just blurted something out and i went off the script that's what the court said cordie participated in that colloquy i don't think you need that because i think if you parse that colloquy you will see the defense constantly saying you want to i don't think we need to talk about the business it's premature i want to separate out talking about scheduling from talking about the business we don't want you to go there there's all this colloquy we focused down in the end to a preview the judge  honor i have reason to believe that judge douglas he would not take a case this long at this point for health reasons it's the kind of stuff one hears from clerks in the community so i that's the only reason i posit you say that i'm kind of been assuming that we got back the judge would feel like he couldn't but what if you could have to be fine but that's one reason i'm pausing as a practical matter i'm not certain that could happen just talk as to be as restricted in just gotten rid of the c