good morning anderson may please the court kimberly trimble federal defenders on behalf of mr santos korda this court should remand the case so that the district court judge can determine whether there was a substantial grace with a substantial motivating factor for primary challenge well considering all relevant circumstantial evidence including the government's jury selection notes this is a narrow request that is based on the unique procedural posture of this case this case was a hearing from a reversal of a batson violation due to the district court's error in at step one in not allowing the defendant to establish a prima fashioned showing of racial animosity it's therefore distinguishable from th deficient as require another remain the united states supreme court's decision in foster vs chapman which is consistent with prior decisions that all relevant circumstantial evidence needs to be considered at step three of the bateson hearing and in this case the district court judge actually indicated his interest in what was in the government's notice and the prosecutor's refused to turn them over and the district court judge did not order about you have any has any court compelled a prosecutor to disclos instruction notes over the prosecutor's objections and what arguments would support that yes your honor both the fourth circuit and actually this exact district court judge after this arraignment hearing today in another case the fourth circuit case that's relevant is first barnett and that also happened in garrison and tend to all of these cases are cited in my briefing and each one of those things ok you have some cases but do you have a hard and fast rule that it's always required because the facts you know we have to look at the facts of each case would be my interpretation of certainly your honor and i cite to these three cases because it was ordered it was specifically ordered in those three cases particularly environ net which was a direct appeal and actually garrison intended were also direct appeals remounted for a batson incurring and they relied on the supreme court's guidance in miller elvia track here but also and now the court can look at fostering chapman which is discussing that all relevant circumstantial evidence needs to be considered ok and so case the prosecutor claims to remember so it's not a question of the prosecutor not remembering and there's evidence of record that  the jurors that was excused was first out of the gate and their saw so evidence in the record that adjusting war as was not stricken by the government and was found to be hispanic and was on the jury and that the defense struck misrule he's yes your honor so i think your honor spoke acing on a little bit of a different subject than what i'm focusing on in the turning over of the prosecutor's notes i think what barnett shows which is consistent with previous supreme court precedent is when time has passed there needs to be a deeper probing inquiry and this court actually did that  itself in surely versus yates that was a ninth circuit decision where that case had gone back that was a hay vs case but when the case of gone back to this court indicated how important it is with the passage of time to look at other relevant circumstantial evidence and particularly noted how important jury selection notes could be because they are contemporaneous and in particular in surely versus yates this court noted that with the passage of time the party who was defending the strike would have time to reflect and to review the transcript which we know happened in this case because the prosecutor actually cited to the transcript when she was talking about her reasons so in this particular procedural prost you're when it's not  contemporaneous explanation by the party exercising the strike there needs to be more done to ensure that the reason he said process ok if you have the prosecutor saying that that the reason that she challenged this perot's was because she demonstrated a lack of confidence in her ability to be impartial on an immigration ca and it was an immigration case or and then at step three the district court found the u s attorney to be upright and honest and that her reasons for the primary challenge were race neutral and also conformed with the court observation of mr as which i think there's a pretty good evidence to indicate the court didn't make it up for just that hearing because that was it came up in the first time that it was that here the court jumped jumped the broom or whatever and went to the but i guess even if we refuse this to novo had have you carried your burden of showing that the challenge was for a discriminatory purpose well i have two answers that you know asking for the notary on ash something that didn't seem like that went really well the judge did not do that but the concern though your honor is frequently one that when this court is talking about the just the trial judge as position and evaluating reasons they're talking about the ability to observe the behavior of the prosecutor or the individual who's defending the strike that was impossible in this case because he was a would emphasize the attorney who was present in court representing the government had not been present at the trial he was working off of the notes and impressions of the trial prosecutors want to hear the trial court's observation is really meant to be something much later usually you're talking about observation at the time of trial and she was surely present at the time of trial the the whole problem here is when this issue came up the district court seized the issue itself and didn't let the parties speak and that's why it had to be remanded go ahead and observe the district judge i have great respect for him but he got way too involved the second time to having said that there still is a factual record there and i judge callahan's question as to why that factual record is insufficient to support the conclusion the district court reached well for for several reasons your honor first and foremost because of the supreme court's guidance and rodgers vs richmond that facts that are reached when applying an  n historical standard cannot possibly be expected to furnish the basis for correct conclusions merely because a correct standard is later applied well so what but he's recalling observations he made after the time it's not purely a matter of this is come up two years later and are drawn to reach back he's talking at the time the problem is he got to involve the first time but in getting involved he made factual observations but your honor you've hit on exactly the problem with the way that this was handled even henri mand and this is the concern that this court expressed and surely vs yates because of the district judges involvement in the first time where he expressed all of his reasons the prosecutor was essentially furnished with reasons that she knew would be accepted by the district court judge and so when repeating change the facts though and this case it seems to be the key fact is the district court itself appeared to observe the reason why he doubted this jury or this particular prospective juror was go stick around and your honor he also acknowledged that the ring and hearing that another person could have had a different impression and so all i'm suggesting here is with that background i'm not saying the district judge can't consider his own observations at step three what i'm saying is an idea supreme court precedent requires him to also consider all other available evidence circumstantial evidence and we're not even asking that these notes be provided to the defense that was the aboriginal request it would be lovely if this court ordered hawley for the united states so to begin with the defense's argument regarding those four circuit cases barnett tyndall and garrison all of those cases and particularly barnett makes this clear said this is only arises one of the highly unusual procedural posture there have to be compelling reasons that wasn't the case and wasn't the case here this is essentially a mine run at legal entry case that happens every week in the southern district there's nothing particularly unusual other than potentially the judge's statements the first time around that would have taken this past an inquiry into those unusual circumstances most importantly is that the prosecutor had a clear and independent memory of exactly why she struck the juror she provided not only indicated that but provided those reasons went into specific details that track what the district court said but also added some additional information so for example the prosecutor in this is a page ninety seven of the record talked about not only the hesitation but that juror number one's body language showed hesitations while her tone that essentially everything about the way she was answering indicated some hesitation about whether she could be fair on an immigration case the fact that it tracks with what the district court said doesn't indicate that the prosecutors making it up indicates that that was what everyone  raise the possibility that the prosecutor's been given the answer key by the teacher by saying all of this is what i observed so all you really need and the subtext of that is so all you really need to come back to with is confirming my observation and you're home free would would permitting a review of the contemporaneous notes at least open the door to what the prosecutor really observed at the time so the two responses first is that the prosecutor essentially ca explanation adopting the same thing isn't true but at least it raises a question of is she taking advantage of the fact she's been told what to say and i would say no because again she also indicated additional information right the tone the body language and that is supported hesitation indicated let me ask you is it that the trial judge has now created a structural problem that did not get corrected the second time around no i'd know because on the second time around we have now there's again affirmative evidence that the prosecutor did not purposely discriminate hesitation noted live on the record and really nothing to undercut that but her answer does doesn't appear as is a pereira's for as an answer to the question does want to cut that doesn't i'm not sure either she is she's she says i can be fair and impartial juror and she ultimately gets to that that answer which is why she was not struck for cause or we didn't move to strike for cause but that initial hesitation certainly grounds for a printer a challenge when she immigration because of the type of charge essential that we're gonna be talking about i'm hesitant i'm not sure that i can be fair in that scenario so we eat on either approach either reviewing that what the district court did in procedure or even if this court were to go to the noble review you your honors i have just two points for rebuttal first the government said that those fourth circuit cases were in a highly unusual procedural posture whereas this case was mine alone in fact those cases were removed because the batson an of not been done correctly so the unusual procedural posture that the court is talking about before the circuit is talking about is that it was not a contemporaneous trial objection handled in the moment but rather remained hearing so we have the exact same unusual procedural posture here that would allow for the same further inspection into the government's jury selection notes i also did want to provide for you on of the citation for the case where this precise district judge has already ordered the government to turn over its notes that case is united versus sixteen c r two three seven five that was also a remained hearing for that that's in question and in that case the very same district court judge recognize that he could look at jury selection notes when determining whether there had been particularly for the quotations cited on how he did when he said i mean just said i'm just i'm cold in you to your word you say well i just want this judge to have a chance to look at them but i read it you want another judge and your honor you are correct that when i wrote this brief that was what i was