so our next case for argument is united states versus could be argument there will be a will retire to the er room and have the government council addresses on some of the other classified issues thank you your honor u nless the court is inclined to begin elsewhere this morning i plan to address st the sufficiency of the evidence on count five which is the conspiracy to kill federal officers and then discuss the district denial of a mistrial after several jurors were frightened i mean distracted by a courtroom spectator and then time permitting i would like to address some of the ever denture issues beginning with the issues having to do with classified evidence the federal jurisdiction all element that is that any agreement that was arrived at sufficiently threatened a federal officer so as to justify the exercise of federal jurisdiction  and very closely related in this case is that there was a specific agreement that targeted and that contemplated the killing of a u s officer not just simply a general intend to fight to some of the parlance in this case or even a general intent to kill but that the contemplated objects of an agreement was a federal officer doesn't the record include numerous statements from the defendants specifically listing american soldiers that they intended to fight and kill american soldiers why isn't that sufficient there i would say that the record does not include such statements the what the district court relied on were three things primarily st the cooperation defendant era fingo jolly testified that he personally intended to go overseas and kill and kill american soldiers however on cross examination and this is a part of the evidence in the case and this is evidence that i believe cannot be viewed in a light favorable to the government he was asked there wasn't a firm plan in the set as to whom the targets would be said no there is was no firm plan they could be specific individuals rather than american soldiers because looking at multiple your sites that we could run through where american soldiers are specifically identified offense itself has been committed and it becomes quite clear in those cases what the conspiracy embraced but feel also says in the case of an unconsummated conspiracy that you have to look at more closely at the knowledge and the intent of what the agreement raised and the word to use is well formed and crystallized and we would argue that any intent here was not well formed and crystallize the guard for the district court at one hundred and ninety two was in afghanistan and not there they're talking about the rules of engagement is it possible to kill women in combat and he says what about us girl in the army under fiola which says sufficient specificity whether by name or unique characteristic i don't believe that that satisfies the fuel a standard the nd thing the district court relied on was a very similar kind of context  discussing the morale of the of you know using alcohol as a battle technique eating pork if it were necessary despite the fact that islam prohibits that and also the  permissible to kill that person there's no mention of who this general is this general is not a specific person and i think looking at the universe of section one thousand one hundred and seventeen dollars cases there is no case in which the evidence was this unformed and not crystallized it doesn't necessarily have to be a person identified by name more positions such as the u s attorney in this court's croft case but i think in every case the do go that's the fort dix case hassan is the quantico case the agreement had become sufficiently crystallize for criminal liability as to discount now we haven't challenge the sufficiency of the conspiracy to provide material support and it is possible that criminal intent and agreement for different conspiracies crystallizes at a different stage this is a far more specific arrested while en route to an airport to go to afghanistan so why isn't that sufficient to find that their agreement had crystallized i mean perhaps it had crystallized for sufficient for probable cause to arrest especially on some of these these other conspiracies that was were charged the st charge here was the material support conspiracy and we're not challenging that the evidence was insufficient on that count however we would argue that the agreement never and whether i think the question there is more certainly there were preparatory discussions and debates about possible groups and the significance of the al qaeda versus taliban dollars capital b the taliban is not and i would say in the overall record of this case there is far more evidence related to the taliban then but there is discussion and the government i think relies upon this pretty all of their on this call talked about the students in the professors and it wasn't you know an hours long conversation but it went on for several lines back and forth and there was evidence that the students were the taliban the professors were al qaeda and so in that discussion mr peer was telling the group that the plan was to come in st join the taliban and then sort of work their way up to join al qaeda why is that characterization of the conversation incorrect unfair in some way i agree that that is the what the government primarily relied sawn on for these al qaeda accounts and i believe that insufficient because there's no evidence that mr kabir knew what professors meant so he even though he was using the terminology himself your argument is he didn't understand it and he also used other code words like wedding and swap meet and you know why was it not reasonable why couldn't a reasonable juror conclude that he understood this this code language that he was using with his co defendants i think precisely because there is evidence that he was told what swap meet met he they were talking code he didn't understand that he had to be told what that meant but i guess the instance there was testimony that what he described essentially going before one of the professors and being accepted was actually the procedure that was employed by al qaeda that when he told the others you have to go before one of the professors he would write so with that other testimony was there enough for the jurors to conclude reasonably conclude that he understood what professor smetana knew it meant al qaeda i i don't think so and for this reason is that he says at one point saying speaking vaguely but sort of the taleban and this i think is general accurate are in afghanistan the others are not the others are in the mountains the others are in the mountains yes and i think one could reason for that prefers al qaeda that does correspond to the expert testimony i think both experts and i don't think either experts said that you in fact do advance from the taliban to the to al qaeda they speak different languages while at one point in the one thousand nine hundred and ninety s the taliban may have given safe cover to al to join the students and then we'll join the professors does it matter if he if he didn't understand how the two organizations related to each other or if they didn't relate to each other at all not necessarily your honor but i do believe it goes to whether the sense in which he was using the word professors i think this case is unusual given the wiretapping the sweeping of the digital devices and the fact that could be mr appears so far away that basically all of his communications with the u s based defendants are in some form recorded there's chats there or you know as this one call where you can actually see him on the little cell phone  there is no indication that he was ever told professors students taliban mean students that is not a a big leap and that that's a question from the the confidential informant who said not give some sort of nonsense going on there i would encourage the court to listen to some of these tapes because i think there are nonsensical answers that are pauses and i think there is not sufficient evidence that he knew what professors meant he was told what you know generally means pilgrimage that that means jihad he was told that swat me means firing range there is no  was going to the firing range after he had already left the united states has that that point and so they were talking about the swap meet but that seems different from his use in his discussions with him at the term perfessor and as far as the nonsensical responses and i may be missed remembering there are a lot of briefs in this case i don't remember your brief arguing that with respect to the discussion about students and professors but rather with the discussion about c four explosives that's i think i agree it was more prominent in that context but i think it comes down to within the evidence in this case and the understanding that much of this evidence if not all of his communications w captured and recorded that there is no time and there's no other time that he shows he knows what that meant in context i believe it's clear that professors means the leaders of the taliban there is no other time that he deploys that term or uses it and it's a term that even the people in the us had to be told what it's meant because it is not a conversation where the co defendants are discussing what form of islam they'll practice and conversation we're discussing there is still it appears that no firm agreement has been reached as that count and that there while there is let's call it lobbying on both sides of that question i don't think the government has pointed a place after mr pierce has let me know which one and let me know in other cases has been evidence that a firm consumer c has not been if there was an agreement to join one or the other or both that's not sufficient in your view they have to have settled on one entity and that's it i believe so your honor the district court in this case used a lot of bank robbery analogies i think if there's a general agreement we're going to rob something it could be a liquor store it could be a the i c insured institution let me know one or the other i think only one of those here would qualify for a conviction under the relevant you know would be savely agree to that and not spend a lot of time arguing about whether the presumption applied i think the case you rely on is symtab yes yes ok the court found there was the presumption of prejudice from i believe is the defendant rolling his eyes  eyeball to eyeball with somebody but it would seem to be dispositive there was that the the district judge didn't bring the jurors in and question them about what had occurred but that's exactly the opposite of what occurred here the  it is precisely because of what came out during that colloquy that the mistrial should have been called so the two jurors i think said they were nervous or talked about you know some concerns but at the end of each colloquy they all said i can set this aside i can be fair and impartial why isn't that sufficient i mean this court and the supreme court have discounted those assertions of joran partiality even if the jurors and there's no reason to think they have the presumption applies it's not  distracted and i don't think there's any way to recover that especially when they were distracted during the defendant's cross examination nd the district court's st attempt to cure any prejudice at the defense did not  away when that note was written they only asked for one a rd juror came forward and there was a side bar and some of this evidence came out about being walked to the car then the colloquy with the other jurors happened ok but that one of the factors i think is significant  extern he's here in the building to interview for a job he was assisting the defense team and all of the jurors affirm that once they heard the explanation they they were at ease they understood the it's different from cases where i believe there's a case where there are something like ten i r s agents sitting behind the government table you know there was or there had been threatening phone calls to the jurors and there was no innocuous explanation that the jurors could accept i mean isn't that something that weighs in favor of the district judges conclusion that the there was no mis trial not i would argue not when drawers four in ten said that after receiving that explanation which would seem to dispel lingering fears and doubts they continued to be fearful or wonder and drew for said she thought that you know ok maybe i can effect except these working with the defense i continue to think he may have an ulterior motive the district court didn't go into that further  or ten said twice in the juror the district court wasn't sure she had heard correctly the st time that yes i continued to be anxious about it even after your explanation and i think that is a critical factor also regardless of the innocuous source of the you know the episode the jury's reaction to it is really what matters and i think the degree of fear exhibited here surpasses what we see in the law of the cases even when the circumstances in those cases may have been objective lee more menacing i don't think the government has cited a case where the jurors who stayed on the jury they were not excused talked to multiple other jurors said they continued to be fearful and the presumption could be rebutted or they you know they didn't think it was a joke those are the cases in which the presumption is  when a juror upon question from the judge and i think it is especially sensitive here in pinar rodriguez is helpful next book explaining why you know the judge is in a difficult situation in exploring questions that may have to do with racial bias the supreme court and this court have said it's like a cell and cribbed as you may be creating the exact problem you're trying to avoid by you know otherwise you might not ask enough questions to really get at the problem courtroom and that she gave her oral explanation to the jury as a whole yes so at that so what did she say at the end of the of the personal interview she rewrites not to discuss the proceedings with others and we're not the judge but the juror what this is a juror say she does say ultimately she could be impartial but again this court and the supreme court has said in repeated kit multiple cases that that is not necessarily enough just kind of curious what is what is what is enough that basis what is a trial judge when i was a district judge i did this at least one on one occasion i think it depends on what the juror said before bring all the hard time trying to figure out here the judge did exactly what we would want the judge to do and she interviewed each juror individually listened to what they had to say observed them heavier presumption and rammer the st line remedy is a hearing which did occur here however grammar went back to the supreme court when the district court found that there was no cause for a mistrial and in  i think that's actually remember three the supreme court reversed you know the failure to grant a mistrial because the presumption and so forth had not been properly weighed and it is i think it's a heavy to the district judge's decision since that judge is present with the jurors and has the ability to review and there demeanor their conduct their statements and make that decision i think as far as your district court's discretion that is lessened here by the failure to apply the presumption i think properly exercising discretion requires exercising it within the correct legal framework did the district judge say i'm not it's a matter of correctly identifying it sufficient to permit meaningful appellate review there is a no no i mean she didn't say one way or the other but then she went through the the time bringing in each juror to julie why should we just conclude without anything in the record that she didn't presume there could be prejudice i think there's nothing to indicate that she did she has she doesn't get it she does i think she's treated as the governor is the defendant's burden to prove that basically that other people had been coming in now and not triggered this reaction and that it was a little disappointing on the part of the jury that they would have this reaction however again the remedy hearing is a st line remedy what comes what came out in that hearing is what required the mistrial here and the mistrial was asked for two times after the hearing so if you're talking about the individual hearings are you talking about individual here talking or are you talking about what she did in the courtroom dentures no i think at that point it was the afternoon or was it the afternoon it was after lunch where she had the one there was one juror she spoke to in the sidebar because there was a nd know about it and that was when the mistrial motion was st made it was not made at the st no but the the nd note was what revealed the we were walk to our cars to make sure we got we made it to ensure we got to the parking lot ok that level of fear and that is when she decided to have the rest of the hearing that was the nd day on the nd day right yes and that happened i believe just after lunch on the nd day there was at the end of day the morning may please the court actually all for the united states there are really two foundational errors underlined defendants efficiency challenges and the related the st is that defendant simply contravenes the burden of her me the standard of review which is which requires this court to make all reasonable inferences in support of the jury's verdict before assessing sufficiency of the evidence and in many cases including just now today and throughout the brief def drawn from it at the entry base absolutely your honor and that that's my theory understood her argument to be and there was a very strong evidence your basis here and in particular this and this this gets to my nd point defendant also attempts to divorce himself from many things that his co defendants said and did and frankly i'm dubious that even under the standard of review he can do that but he certainly can't do it on the facts of this case defendant wasn't just a member of this conspiracy he was the prime he brought them to a walkie who he had been following for five years he brought them to the idea the jihad was the one true path for them he brought them to the idea that they had to go to afghanistan and to fight and so to say in this case and they admitted repeatedly that he was their role model he was their leader and so defended on the facts cannot divorce themselves from all of the things that has defended his codefendant said and all of the plan that's today are that the co defendants said it said things and they had an agreement but the defendant himself wasn't a part of it and that simply is not borne out by the facts here to go to some of the discussion today on this question of q for instance for correct correct your honor the entire argument about defendant not understanding the professors meant al qaeda is itself an inference confort of the verdict but even putting that aside it's who whose practices they would be following and again in that conversation sponsored him was whatever you decide you are the leader i'm paraphrasing so that evidence is consistent with an interpretation of professors  point the evidence certainly was it was constitutionally sufficient which is a very low bar to demonstrate that al qaeda was the goal this these were there these were there their idols the all of the material that could be here in particular is particularly compelling this is the one that i have screen caps of in the brief and it it reflected a call to destroy america and with pictures of osama bin laden and the twin towers falling interpose with pictures of looks like children wearing a hat saying go to hell usa he was listening to all walkie and he was pretty he wasn't listening to all he was e mailing him all the way back in two thousand and nine saying i agree with everything you have to say of what they wanted to do from the outset that this was their prime belief system that motivated everybody is that it is not a crime to the extent that they had an agreement to go to afghanistan and do it absolutely that is a crime believing those things not a crime acting on those things by making an agreement to action which the facts in this case show very very real is absolutely a crime and in any case it was well beyond the constitutional standard for sufficiency of the evidence the jury was well within its power to credit that could be or did have this intent did have this agreement and was acting on that agreement with his coconspirators with respect to the jury question to go to afghanistan to provide support  ones and as that has been discussed there was nothing wrong with the court's procedures here she did everything appropriate under the circumstances she was extremely careful she did her best to allay any concerns from the jurors and in a moment i believe she succeeded case and moreover after all of that the jurors either all indicated they hadn't noticed anything that they'd noticed momentarily or that after her after the board here and after the instructions their concerns were allayed and there is extreme deference to judge phillips findings after she engaged in that colloquy and her findings were that the only remaining concerns if there were any were about personal safety and well i'm not downplaying the importance of personal safety that is not but the presumption applies to the presumption applies to concerns where jurors are being swayed to somehow in the outcome of their deliberations where they perceive some sort of feel good manager of the case that they express sort of personal safety doesn't that suggest that they may not so they might but i think that's a reason why the presumption doesn't apply certainly in a particular case a judge could conduct for dear in they could say yes i'm now terribly afraid of the f b i agents sitting behind the prosecution that are glaring at me and i think i might be there might be consequences if i quit that's what happened in rather for that's not what happened here but that's to say there need not be a presumption of the just a possibility in that case the court can inquire and as he or find out that there was no impact on their assessment of the evidence no juror indicated a perceived threat that was tied to some outcome there was obviously no bra there was no communication with them it didn't provide them any information they couldn't have gotten otherwise and so that this is exactly the kind of case in which it was a defendant's burden to show some prejudice and there was none shown in any case even if the probe the presumption did apply it was adequately rebutted based on the district court's conclusions and in particular at so jurors four and ten are the two jurors that even after the st discussion reported some remaining concerns juror number four at the end of the colloquy she confirmed that she would have no problem sitting on the rest of the trial she remained impartial and that she had not been distracted that day that is that the are two thousand and fifty two and join number ten similarly affirmed that he or she could listen to the evidence would not be distracted that's it your two thousand and sixty two and when asked whether he or she would hold it against the parties responded absolutely and on affirming again that he or she could set it aside if the court has no other questions i'm willing to yield my time thank you for your own use in the government's presentation i didn't hear a word about again the count five the federal officers again there may have been a plan to go to afghanistan there may have been a plan to provide  material support for certain activities but the evidence is constitutionally insufficient on the federal officers portion of that plan turning to the jury question quickly this the government makes  admit that they are unable to be impartial i think even more so when there's questions of right racial or ethnic bias and that for that reason despite them being in good faith in the district court crediting them those and we're not saying that she couldn't credit those