two crucial right the right to a jury of his peers and the right to present a full and meaningful defense and together these two different nations cause the trial for him to be unfair now a strike of a potential juror for cause requires either actual or implied bias for actual bias strikes the district court must make factual findings and those findings are generally deferred to by this court here the government apparently abandoned any claim of them by bias in any event implied bias can only support a strike in exceptional circumstances moreover the district court did not make any factual findings with regard to actual is it your position that it is there's simply no flexibility in our case law to look at the transcript of the proceeding see how the jurors responded to the question and then essentially find on an abuse of discretion standard that the district court obviously must determine the actual bias based on what was presented to him during the yes your honor i think that there is not flexibility to do that for actual bias i think this court can do that sort of review for implied bias implied by just doesn't require the sorts of factual findings that your honor just described reconcile your position with the language in the supreme court cases addressing jury selection and that remind us that because things happen in the room that don't lend themselves well the judgment of the trial court in selecting the character indeed this court has said so that you have to give the deference however what you give deference to is the factual findings and the court repeatedly refused in this case to make any factual the record is he said that two or three times throughout the course of my tent to get him to make a factual finding he refused to do so it's not sufficient a district court judge has to say i'm going to find that there is this person demonstrated actual the judge didn't do it in this case when you put your prospective juror during why dear on the record in response to the question can you be fair and impartial if i were sitting in the defendant's place i would not want are on my jury is that sufficient for the district court at that point to conclude that he is actually biased and therefore must be you know i don't does he have to say based upon the answer that juror smith gave on why dear i find that he is actually biased and could not be a fair and impartial juror i believe it's the latter and i think under the circumstances of your honor just described that would constitute nearly what this car court in fields called hints of bias that would warrant a peremptory challenge actual bias requires more actual bias requires a finding that a particular belief or opinion will prevent or substantially impair performance of duties and mr grech let me give you a real life hypothetical i when i was picking a jury in billings and it happened to involve  pornography and when i asked the prospective jurors if any of them because of the nature of the case would be unable to to sit as a juror in this case a lady raised her hand and i when i brought her back into the chambers to ask her what the problem was she said well i think you guilty and and i said well why would you think that and she said wall he just looks guilty to me and if the government charged him he must have done what they said he did now isn't that evidence of actual bias do you still think that the we should excuse this juror and of course there are you know in other circumstances the district judge might explain to the potential juror what the law requires and then ask we'll be able to follow the law as i've instructed you and if the potential juror says yes then i think that that's a stretch for cause it's not proper i think that people might have that impression who are not particularly schooled in the law that you know where there's smoke there's fire but we presume that jurors can follow instructions and when they say that they can and that they will be fair and will this crabtree ms one is hopkins even if the court were to do a sort of a did novo review there's no basis for striking those jurors as being biased each of them said that they could be fair now some of them said they could have attention but even more important experienced interpreters it's automatic assume as they stand up in the court they say my name is daniel blank i'm an interpreter and i have been sworn in so the lack of  correct and even though the courtroom that i was in before judge prior got the file from judge fogel and it wasn't the note it now and the government certainly could have called the court interpreter and found them i doubt the court interpreters office that keeps track of which interpreters are in which courtrooms almost certainly but it would be unlikely that interpreter would have remembered exactly what had happened that particular day had been years before so i'm not sure that that would have been so useful or could have testified to what the common practice was and courtroom and jury could have decided how much weight to give to harass the of that testimony that's correct for the practice but what i asked actually just take notice of the requirement in the rule and no one is better positioned to say what the rules require in federal court than the district judge that i was before i think you please the court my name is chris just on assistant united states attorney in the northern district of california and i represent the united states let me begin where defense counsel left out with respect to the interpreter we do know that the interpreter was her name was arse we know that because judge briars court clerk called the sandoz they district court and found out the name and provided a defense counsel on the record that's at page ninety five of the excerpts of record so the interpreter was identified for defense and could have been called but more importantly the district court did not abuse its discretion and i refusing to take judicial notice of what the defense characterized as a requirement that the interpreter stay on the record that they have been sworn under rule two zero one an order for the district court to take this will notice the defense must do two things first i must supply the court with the necessary information and second i must establish that that information is not subject to reasonable dispute now if you're taking the position that judge can't look at the language of a rule and take judicial notice of what the language says are you know i'm not taking that position i think what's important to no take notice of the rule he would then ask for an instruction based upon the language of the rule and then argue that there was no evidence that the rule was complied with and therefore the jury should conclude that the interpreter had not been sworn  e irregularity in the translation in order for the defense to make that argument they would have to establish that there needs to be the swearing of an oath by the interpreter on the record and this was the important point that the defense wanted the court to take notice of was that the swearing had to be on the record or as it stated now and the appeal for the defense now i ask is that the district court take notice that the interpreter was required to state on the record that he or she had been sworn that's what's important to the defense because their entire theory of relevance depends on the idea that the swearing is on the record and what the defense tells this court and we're told the district court was that it wind to argue that the absence of an oath on the record was significant and allowed them to then argue that perhaps that the interpreter wasn't sworn and therefore may have gotten the interpretation wrong now to make that point the defense had to give the court a rule or at least a practice that there's a requirement that interpreters be sworn in on the record or evidence but that rule does not require the giving of an oath on the record and i can tell the court that in the northern district of california in san francisco the oath is not given on the record it's given typically in magistrate court at the time the initial appearance by the clerk of the court before the calendar pskov that's typically how it's done and it's a hotly disputed issue as to whether or not there's a practice of giving the oath on the record and the district court and that's what the district court focused on is a district court noted yes your honor the district court properly struck the five jurors for cause because they were equivocal at best about whether they could put aside their sympathies when deciding whether the family didn't ask the judge to strike them off or remember correctly now your  honor that this that the court struck the jurors on its own motion but then did ask the government its position in the government indicated that it would have moved to strike the same jurors for cause it's a fair point but if you read this court's decision united states versus gonzales that decision suggests district courts that they better structure is for cause you ask the questions on equivocally because if they fail to do so it's reversible error and that case couldn't be reversible people don't do things easily and that you know it's not the easiest thing to convict somebody and send them to jail since jurors send them away from this family may be difficult for someone to do if you've got a do it even though it's difficult these jurors each of them i thought did not say i'm going to do it even though it's difficult when asked whether or not they can put aside their sympathies for this defendant either because he's from mexico or because the that the next question if i could it is next question your honor and both of them said that they would have difficulty they said that they sometimes understand these may play a wall and that but that it would be difficult for them to put aside their and they haven't said i won't do it but those if it's if they say it's difficult my i don't know whether i can do it maybe if they say it's difficult but i can do it certainly now but i don't know what you have to find out whether they'll do it before you can strike for cause this district court made that determination he listened to the answers when he heard the answers of the jurors and we don't have enough time to go through the record for the record it's quite telling the judge just just get to the stage where they said it would be different without finding out whether they could do that that's a question i'm trying to determine right there with the way it the way it played out your honor and i'm trying to answer questions directly is possible is that they were asked generally can you be fair can you follow the law they said yes and the district court said well that's not very you know that's not very helpful like in this case like other cases you need to know what the law on the facts are so he then described the law is in this case and what the facts are and once they were confronted with the law on the facts of the case these jurors said that they would have difficulty somewhere so there may be very difficult for them to put aside their sympathies and  that what the district court observed that was enough for this district court to decide that these jurors were getting at least at the very best equivocal answers about about their ability to be impartial and given and once they give equivocal answers that's enough to strike for cause  parent asks the teenager whether he will be back before it's too few that peer and it's highly unlikely to find i'll try an adequate satisfactory or unequivocal answer i would suggest your honor that the same is  that's only on the record because the district court noted that when it was making its findings of striking the jurors for cause normally that want to be on the record some of these questions were asked to be a show of hands who could put it whether or not they can put aside their sympathies you don't see the show of hands on the record prosecutor this doubled the government's peremptory strikes either someone is biased and they can't serve or not and to say that you know i'll defer to the government the people that you would have struck right let me know if not i think that really is telling he drilled down and asked would you have a problem sitting as a juror in the case knowing that it involved an individual you know come back to the united states from mexico and jurors as yes i would have a problem i mean how much more does the judge have to do with that point but i think what the judge has to say is and you have this problem is this something that you can overcome this if you understand what what you're supposed to do understand that it's problematical jury has already told the judge in the earlier question the juror has trouble with the law once you're deported that you have to get permission to come back and that people she feels strongly that he or she feels strongly emotion well i think emotion is not forbidden i think that you know we take jurors and we want yours to be their complete human being and and it's you know it can be upsetting to hear what happens to defendants or what happened to victims in courtrooms one actually juror five alternate jurors were going to alternate jurors were struck so somewhere between two and one plus five would be that group number here we have between three and five and i think we're getting closer to that point where it would be a wholesale sort of group you know it's a judge but it would anyone be sympathetic to someone coming back well of course they're going to be sympathetic and they were fifteen people  that were to be one thing but it also created a real cloud in the courtroom that obviously doesn't come through on the call of record with the remaining potential jurors that probably exists every time you want  know you better not have any sympathy for this guy whatsoever and as a result come combination with the fact that i couldn't present my full defense the jurors are going to be given the instruction that you have to base your verdict on the facts and the law i mean we do tell them that you have to put aside