became an informant because his wife was arrested the government did not present any evidence showing that it was free of undue coercion or undue pressure there was no testimony no declaration no written informants agreement no evidence one way or the other well i think there was evidence on on our side which was that the informant had said and we expressed to the judge that he'd become an informant because his wife was arrested which indicates that he was put under some sort of undue pressure which it's the government's burden to show that his decision to become an informant was not based on any undue pressure of coercion the case is that the government sites have within them testimony specifically from an informant in some cases where the informant testifies under oath that he became informant under his own free will that wasn't in this case the informant ever testified in this trial instead when the informant was available he was in custody in state prison that's where we interviewed him and so  given that the court at minimum should have held a hearing instead the court denied are in limon a pretrial motion to exclude the informant recordings and that's where all the evidence really stemmed from was the informants record take testimony of the an informant i don't my recollection is i don't see that anywhere well fair enough i've my specific request was to exclude the evidence because it was free it was not shown to be free of undue pressure or coercion it's the government's burden to as your honor it would would indicate it was the government's burden to show that it was a biased phone free will and free of any und pressure of course normally and i agree normally and informants recordings are presumed to be of by free will or without undue pressure given the fact that he's informant and he's presumably being agreeing to be recorded agreeing to participate but here we presented evidence which would indicate that there was that that was not to be the case given our  investigators interview of the informant and and we presented that to the court the second basis which i feel supports reversal is how the judge treated how the judge reacted to the jury notes the jury sent two notes at one eleven forty five am indicating problems with legally she's not factual issues legal issues one of them was whether they could consider the informant as a coconspirator and legally that's not correct they cannot instead how the judge he treated those jury notes from the record was that he did not address them at all until a verdict was reached and a verdict was reached the council yes it's about lunchtime right and yeah it would help if you could respond the government has explained that the record shows that the judge came back got the notes called counsel then a verdict came in and when of please if you're going to if you're going to give us a different quality you need to tell us what we're finding in the record because that's not how it reads to us so we weren't there that's why we need your help with the record if you think it happened if rolled out really like that  to do that on your tax ticket imagine you come back i don't mean to say oh let me let me i found it ok the first time we the tense council heard about anything related to any notes is when we found out that there was a verdict so it's not that we found out there were jury notes and then the verdict and that was at c r one ninety two but you're assuming my point was you're so mean that the judge got the jury notes and then didn't do anything with them for some protective period of time that you weren't called that's true i am assuming that that's true ok so that's just what we can't get from the record because it was also about lunchtime so would be entirely consistent with the judge getting those simultaneously i think unless you're going to tell me that we've missed something i mean fair enough my my other assumption the other sumption would be that he came back but the court came back from lunch almost it's unclear when he came back from lunch that's really the problem and so either he took a two hour lines which is what we would assume because that's what according to the government was the first time they found out about any notes and any verdict it because the court when it came back when when we were called back into the courtroom at one fifty two and that's what the the c r refers to and of course began it to clock the court came out and told us that he came back from lunch and that he'd been handed three things at same time with that is that that's too long the court the there's a jury out they have legal questions he's not addressing the legal questions in a timely manner and so the jury's not some unguided missile where they can determine jury legal concepts on their own which they're confused about and so it's not appropriate to think that they worked it out all on their own weasel eagle concept and furthermore it's not appropriate to think that the verdict wasn't affected  notes out yes or ok and when did they let the judge what time you all showed up in court i think it was one fifty three or whatever it was but when did the jury send out the not saying they had a verdict so i think that's the period of time you're really complaining about oh one forty eight pm stating that they had reached a unanimous verdict thank you yes well i think that's where i think that structural error at minimum i think there is if it can't be found to be harmless beyond a reasonable doubt given that it directly that the note at least one of the notes directly reflects one of the counts at issue which is the conspiracy count yes or on one would let me let me see if i understand correctly he had the district court judge had the verdict and the notes the jury comes in counsel are present the judge calls the attention of these notes the foreman says we don't need anything for that we've worked it out that's crap that seems to mean that the that the questions they're asking before are no longer relevant to the way they've decided and the jury itself doesn't feel it needs an answer now how could that how could that be reversible where i thought the judge handled it pretty well under the circumstance the reason that it's reversible is because the jury although the foreman did say that that would mean that somehow the foreman had that legal concept explained to them or or either that or they became irrelevant to the way they were reaching the verdict and they did have to go down that street they went down a different street you're assuming the worst concept the jury instructions do not address that legal concept so how was that concept explained to the jury which clearly had an issue with it you're  yes that's true i am assuming that it went i'm assuming that it went unanswered i'm assuming like the two notes the from the jury's perspective they're not being answered by the judge maybe he's on a extended lunch but why send out another know why express any other problems when they're when those questions are not being answered and the jury instructions indicate to the jury to send out any notes if they have any questions yet that's not being followed through on  the strongest case that i have  a little more time you come back up from the government please good morning your honor may it please the court jennifer on behalf of the united states i do want to start with the jury no question and just note that i just waltz is actually i think he said it right on the nose which is that when they sent out the note regarding the question about conspiracy over the time that they stayed before they broke for lunch and came back again it is reasonable to assume that the jury didn't work it out that the question about can this be a coconspirator became irrelevant because the verdict came back that they had convicted both the defendant florio and codefendant ruth rivera of conspiring with each other the instructions that were they were given was that they were that the elements were that they had conspired with each other the verdict for with each other and that the question of the c i became irrelevant and i'll note that their first question was about you know why does it matter that the gun traveled through another state and they worked it out as well i think we understand you want to just the other argument yes and that would be the question of the could see i consent i want to put this court into the context of what was happening in the trial defense counsel has mentioned repeatedly that there was evidence that the defense had proffered that or  had put forth to support his allegation that the reason that the c i decided to cooperate was because allegedly his wife had been arrested the first time that this allegation was actually made was on at the hearing for a motion on a different motion on the motion for discovery that was the very first time that the defendant ever alleged that there was an issue with the voluntariness of the cia's consent and he had government set forth evidence that the wiretap that was on the phone was a consensual line and that the cia obviously had knowledge that he was being monitored because every time you went out for a controlled meeting the agents outfitted him with recording devices him and his car and under glickman that's all that the government has to show so the first time that the defendant actually alleged the reason for this alleged involuntary is without a motion hearing that was about a week before the trial and the first time at that the defendant ever actually put anything in writing and he's as i mentioned it was a reply to the motion in limine a in which the attorney proffered that his investigator would testify that c i had said that the reason that he cooperated it was because his wife had been arrested there's been nothing more concrete other than this vague allegation and that piece of paper was filed at the friday before trial four days before trial there was no opportunity for the government to respond and frankly there was no error there is no abuse of discretion by the district court not to hold an evidentiary hearing on that matter because even if that allegation w true even if it were true that the reason that the cia agreed to cooperate was to get some kind of hope for leniency or promise really and see for his wife the court has is very clear that that is not  vitiate consent you have to choose between two as the court has put it unpleasant alternatives where a decision to cooperate in the expectation of leniency for either yourself or  third party that does not constitute coersion it does not render his voluntary consent somehow involuntary and so it was not an abuse of the district court's discretion to den whether the his wife the informant's statement that his wife was arrested and that he agreed to cooperate whether that was enough to as the consequence yes you could respond to the government's argument because i read the record the same way i think it was raise for the first time in a reply brief and i don't think the court had the transcript attached to the reply brief that would have the district have that the benefit of the transcript so is your argument that you should have had an eviden hearing based upon that allegation in the reply or what is your argument there well i had filed the motion to exclude before then the but her position is that they had and it hadn't been fleshed out there wasn't this allegation about the why being subject to criminal charges and that being the basis of your coersion my argument my response is this that was not the the notion that the government did not have enough time to respond was never expressed in the district court instead the government responded that she was never arrested and therefore there's no problem and that's exactly that that's not sufficient for their argument is that under our case law having to choose between two different distasteful choices isn't enough glickman so i think that's a factual issue i don't think that's a matter that's not in every case we can't possibly say that because the wife in fact the district court when i expressed that to the district court and yes find in the reply brief the district court and there was a several issues being discussed the same time but the district court said that any evidence of that would have influenced his decision to cooperate should be produced that's what the district court ordered that's not exactly that's in response to the discovery request that i made but my point is even the district court recognized that there is an issue here and yes the c r the court's record indicates that my motion for the sixteen of the recordings was denied but that still indicates that there was a problem there and therefore the government should address that problem they had an opportunity to it's very it's not a very complicated issue whether there was evidence that he voluntarily became a c i should not be so difficult to address and it's their burden to show that not to at the time not to come to the appeals court for the first time to say that they did not have an opportunity to address it so for those reasonably conviction should be reversed thank you thank you both the next case on the calendar is united states of america versus