under brown as even the government concedes and i quote from their brief rule twenty four three b is not available when the record discloses a possibility that the jury believes the government has failed to produce sufficient evidence  even under the substantial possibility the record reflects a substantial possibility but even a they certainly reflects a reasonable possibility you're never going to find a case like this again during one was removed nine days in deliberations at a time when he was known to be the one holdout after he denied any wrongdoing and expressed a willingness to deliberate and follow the law based on a challenge from a church well he would already shown himself to be anti could fence and whose challenge did any of the defense counsel ask for additional gerry or jurors to be forty years yes before the dismissal adjourned well your honor the the answer that question is that the dismissal occurred when they walked in the door when they found her and on was gone know and this is a case where we have incredibly of impeachable witnesses they were impeached left and right and sideways i've never seen a group of witnesses like this in a case i don't think you can i suspect you maybe haven't either unless it was the great one certain number of jurors rather than all the jurors so and at a point in time just explain to me how this works procedurally sort of point in time at which the judge indicates that he's going to question three jurors at that point does the defense not have an opportunity to say look we don't think you should go down this road at all but if you do you ought to at least interview everybody we honor they did say that for the at the when they first went when defense counsel first knew that there were going to be  he's first said it was not likely we reach a verdict and then they said if it appears that we're not going to reach a verdict it shows that there is movement and if there is movement then there's the liberation going on and what do we have that's what deliberations or what if so if we put aside the deliberation issue it's complicated you know that that's its own complicated story what do we do with the independent nineteen of juror misconduct  instance we've got to review these for clear air and the district court found that he was engaged in covert behavior hidden from other jurors and so if that fact finding is not clear  then how would it be abuse of discretion to say i'm not going to haul the other nine jurors out here for questioning when as i found and i've gotten evidence the same was done secretly i'm not going to put other jurors that process there's no real downsides to doing that if you know that the person at issue is potentially hold out your if the reason for the possible dismissal is independent of the evidence of that person's view of the evidence then we look at it differently than we would in a different situation under brown and so if you if you sort of take brown out of play and you look at what you're talking about which is suppose that there's some independent issue with this particular juror we're going to look at it in an in not as skeptical of a way then we would tend towards something like hundred is no possibility then you don't have to apply brown when asked if you think if you made an argument to be on a reasonable doubt if the standard were propounder and i'm not saying it is but if it were would you still make an argument or with our or do you think that at that  here in patterson fine that it has to be also find it has to be necessary to remove the jerk here if the jerk remove notes from from the jury room that's nothing more it's no different than taking the walking out of the courtroom with your memory and even if it were it doesn't necessitate dismissal it might to some it might warrant of an instruction reminding the jurors that they shouldn't be doing this and in the other cases we see there are those kinds of instructions given were going to the to the two jurors besides your nine who were question about his i guess it was ten and twelve both understood there to be instructions that's what they view it that way he said there was nothing wrong with removing stuff you're just writing notes and taking them out of the room no i think he said that if it was something that had nothing to do with write in there was never a five minute did have anything to do with something other than a finding and so your point is that there isn't that your belief is that there's nothing wrong with that there's no evidence of that you are nobody no nothing to quote you questions are you saying there's no evidence of that are you saying even if that's true there's nothing wrong with that it out is no different than leaving with your memory but more importantly your honour's  the they're trying to hold her nine to a higher standard than the judges of memory who said as long as it didn't really case it wouldn't be a problem and that finding wasn't made until after it was basically submitted and rubber stamp what that the findings of the judge that about i saw where the juror was sitting i didn't hear shouting and then expressly said that he was basing his initial decision in part on those finance one of those factor in your honor i think that shows that there was an export  by the court in the jury room that was prejudicial because it influenced the court's findings it tainted the court's five me because of it it had to do with journalist credibility he was he was not a fact finder he was a fact maker he waited and saw facts that he thought verified the journal and wasn't credible and so his credibility funny which affects the misconduct issue as well the jury notes issue as well his fact findings on journal and nor did the judge say that he'd been outside the room constantly we don't know if there were what shouting it was going on when the judge was in the room i mean how often would the judge been in the jury room over the course of nine days clearly there could have been some shouting that the judge didn't hear so i the back of her i mean what caused him to be there or whether it was not deliberation are getting shot down by the other jurors is the separate issue but i don't think you dispute it that he wasn't going to send at the table to go into the papers and everybody well he said he was he was deliberating twelve we saw throughout the trial and high defense files the judge can only talk to the two jurors with an agenda and then stop he's got to talk the whole jury to get the full story that's what can you say that is supposed to be a search your said an unexamined state of uncertainty because the other nine jurors three quarters of the jury we have no idea what the hit and beyond that during hines notes was shredded this never should have happened you've the patterson case that this worked says that rule twenty three requires not only good cause for dismissal but it has to be necessary to remove the juror because it was not necessary here in fact it was a double standard the  sudden he's dismissed even though he indicated he was willing to do to do what the judge said even journey not turd and said that he promised he would do what the judge said this was not a case where dismissal of the holdout for a car my name is dennis hart i represent kind of simmons there were times when i didn't think i would last one to see the state so i'm glad to be here and discuss with the court the overview witness a problem i'd like to begin my presentation by asking myself a question and then giving myself the answer and then the question is mr harvey you really think that we should reverse a case that comprise about one hundred days of trial twenty five thousand pages of testimony proximately on the basis of age of sparks testimony which is direct lasted about fifty pages in the answer t hat question is yes there is no doubt in my mind that it should be reversed because agent sparks is the franking for the government's case he's the one that the vast majority of the government's case that is there was he provided the framework for the entire government case even if the jury began weeks later or months later to stare at the cameras each individual witness the picture here and didn't pay attention so good can i ask you the same issue comes up and more yes and the court in more explain some of the hazards to this sort of testimony that i think you're describing now  and in more the court found that notwithstanding those problems that the verdict would not be reversed on that basis and so could you explain what the distinction why we shouldn't have a different conclusion here than the one and more and i'm sorry to compound the question but in the course of doing that can you also tell us whether you think plain error applies or direct or are harmless or if i'll start the second question because so i can remember it of evidence the defense case struction this and things like that they never announced the standard they seemed to use the elements of cardiac arrest but two or three paragraphs one stands out to me the two that stayed out to me are more decided and i'm one remind the court that more said this was a very close case on this issue but the other two issues that i think the state wishes for more is that less objections to the overview witness in this case and there were more and in particular no general objection to the fact that there was an overview witness as opposed to isolated objections to particular statements i mean i don't know how we can expect the court issues the proper structures about opinion but number two if you do look at those objections not all of them but many of them have to do with relevancy and i believe this is not your line there's times by sentence they are not i didn't see if you can point to some of the record i would happily are forbidden and so i don't know why that factor doesn't would have given you the ammunition to actually raise this sort of global objection that there wasn't yet circuit court of thirty four at the time of the more trial perhaps if we had more practice lawyers were you is there was no objection to an overview witness per se as opposed to lines of his testimony even though you've been at this point had at least circuit court for any to rely on all i can say is not in this  alone i do represent mr mcgill and it does present a little bit of a conflict for me today because there are some things that distinguish this from deals case from the rest of the defendants i can just mention them briefly then i will focus my efforts on talking about why this problem affected all the defendants one of course the government did concede error in the admission of a want an act of violence when the girl was a young man and i believe that was not harmless for the reasons they might reply brief and secondly with respect to the question of objections to the jury instructions i do think that mr meek gill's counsel when she says i'm requesting an instruction relating to one charge of conduct is a broader objection than perhaps was made by some of the other review i am limited times to list talk about whether the judge's instructions because that's where i think the easiest issue to focus on because it affects most of the other crimes evidence why i believe it's plainer in case that would you believe the standard to be and the reason for that is the instruction that the judge didn't giving with the exception of he did it in a five handful of of crimes evidence that he addressed directly we believe he was moaning about that if i have alleged violent behavior or tempted by a behavior during the conspiracy all came in and in our view the instruction was that the judge gave the cover all that was on its face for two simple reasons and related one he didn't list for the jury's benefit what that instruction was about that is what acts of conduct were going to be covered by it that's right and secondly second question as to whether the jury was adequately apprised of the proper purposes as opposed to just a laundry list that instruction did direct the jurors to the purpose for which they couldn't use the prior crimes oh intent opportunity there's a fine line between those and simple propensity now i'm not saying you can never navigate that line obviously their decisions the do but the jury need some help in navigating that one the same thing with of things but what always happens happens with the standard instruction and i have to confess i'm you know i'm number of years i've been on the redbook committee that drafts these instructions and redraft and i'm pretty confident that committed by the way has misconduct and then not only tells a jury don't use a program purpose but tells them the specific purpose they are allowed to consider it i believe that's what this court it's sister court across the street has come to expect and i think require of let me give you an example from the governor's closing argument ready willing in april they had the probably other crimes evidence shows that men who are ready willing and able to join the conspiracy what does that mean we suggest it means simple propensity the same thing with what they bring to the table or the track record of violence but if it doesn't who tells the jury how does it help them understand all know this was a much more subtle point would you think it helps a little bit at least final structures even though he talks about i'm going to give you more detailed instructions at the end that particular wrinkle how and why they joined the conspiracy is not mentioned in his final instructions oh and secondly and this is just one question i have because it seems like throughout the trial maybe not one hundred percent of the time but frequently after the pleasure we claim to be for for me evidence came in it would then be an instruction at that time is there case you needed to see it but i did talk about there are some cases that talk about oh of instructions during the trial or not nearly as hopeful this specially in a long trial with loss and loss of evidence they're not given  it included in the final instructions and i'm just trying to figure out how that factors into our review if at all in your opinion that there were more specific instructions going on throughout the trial with respect of this evidence well if i can just talk about the merits of it for just a minute the problem with the with how and why they join the conspiracy let's just let's assume that somehow the jurors remembered that and apply that i think i think it was in the final instruction was it not because i thought i mean looking at the wrong fifty four fifty three of that going to end it's is that not the final instructions oh well i just cited my brief so let me turn to that if i might because in the period which is on march conspiracy yes that that is what he gave for mr seeger's right talking specifically about that evidence and there had been some specific instructions that was one of the issues along with a couple for ronald alford and james alford that the court actually the government did give notice they actually had a hearing about we respectfully suggest the reasons are brief they got the judge got that wrong but i do understand that procedurally at least they went through the proper process the whole rest of this had none of that and if you read what he's talking about the general park and lots of this early stuff had nothing to do with that and even some of the contemporary stuff in the conspiracy i was he had nothing to do with that the why he joined the conspiracy then you are getting close to propensity i understand that motive can be a legitimate reason but as i tried to explain in my reply brief there's motive and then there's motive all right there's motive generated by specific concrete you events of somebody shot somebody so therefore i shot that person because it was my brother to not having been a criminal trial oir one thought i had on this instruction is if it's a court had stopped in the course of doing this general far far be instruction and referred again to every instruction because that particularly because of the back end because it doesn't really help and the government's allowed to make these statements in their rebuttal argument or in their closing argument you ready willing and able bring to the table those kinds of things  and you know who's to tell the jury that's not right we're is it might but having said that let me just point out there's one practical problem with not listing that and that has to do with the intrinsic evidence for what the government claims today is intrinsic evidence you know there were no findings on that part of what i understand it's the law in this jurisdiction that the government does have to give notice about intrinsic evidence i really suggest that that's a problem that you will encounter and this is an example of it but at least at the point when you're going to start talking about a jury instructions then the government says well no we don't have to do what we think we can keep mcgill asked oscar veal to kill it's one ball we of doing that on this issue how did the judges instruction on four zero four be different from what you all have proposed it should be there was no specific proposal by the defense and normally there would purpose and whether would come in against all of us in this or not i don't know the answer to that the teenage drug dealing would have would have either come in or not come in for this particular reason and the judge would have with at that point at least have made some findings that would have helped you decide whether there was any for all three balancing because a lot of this stuff happened many years before oh and as i'm trying to say then the they would have said well what about of the state testimony deion oliver said we got them in the trunk and they get to drop previous the bodies in the trunk in the course there's no evidence of that well least they could have started talking about that of they could have decided what was that intrinsic to the to the if not even if it's not intrinsic and you live it in what purpose they come in for the problem is there's no notice there were no findings during the trial and then when you least it they've gone through a pieces of evidence and saying this this category be used for this and this category could be used for that yes yes that's that's the way the the standard instruction is set up tell him tell him what it is legit tell him they have to find it  show i don't know of perhaps i mean i'm just guessing because none of that discussions were held we would have been objecting all along with some of those objections could have been overruled but without that process of you know how can one tell oh i would have used more than my time if i have a chance i'll talk about confrontation in an issue of misconduct by the government house and close very briefly if i could begin with the confrontation issue the issue arose from the introduction of the government has conceded the two counts the drug counts in his case should be reversed because there is insufficient evidence absent that evidence because of confrontation violation so those two counts i asked does and then we also will take it one step further saying that it does affect the evaluation of the sufficiency for the narcotics conspiracy as the court addresses one of mr seekers sufficien other defendants all defendants who had to deal with the narcotics evidence coming in to support the narcotics conspiracy or rico spears but that's as far as i i would go with was something had it not been there there would not have been issues of how the murder took place placement of the body shots proximity to the attack or the victim victimization of  confined so i think it is it's a factor to play into the sufficiency again with the case on mr seekers defense closing in the midst of that government counsel identified something called a play in the identification of a playbook the quote from government trial counsel was it i'm going to use as a guy a number of defendants how a number of defendants and defense attorneys took advantage of the playbook on how to put together a false  those words playbook script chapter were used throughout the government rebuttal at no time during that argument did the district court take a moment to say ladies and gentlemen that's a start mr government counsel don't do that i don't want you using the word false at the end of that argument there was not an instruction by the district court to say whatever you heard here again is are his argument and what he has said about false defense about scripts playbooks you should not take into consideration when the district court read through final instructions there was not a single mention of what is now clearly misconduct to the credit of government appellate counsel this was identif and what's objectionable from your perspective is that the council are human suggested that the defense witnesses and people who are cross examined in fact knew about the playbook and were taking cues from the play book not that he's supposed governing council has said at the outset i'm going to talk to you about this playbook i'm not making the argument that anybody actually saw this playbook i'm only using it to illustrate the sorts of things that people w do if they wanted to come forward with attempted defense in these circumstances albeit one that i think is unpersuasive i'm not suggesting they actually saw it but i'm using this rubric to describe the various ways in which their witnesses and the examination fall short if if that were the way the argument had proceeded you wouldn't have the same forceful submission that you're putting forth today what you're really objecting to is the suggestion that the witnesses in gotten us would it have gotten the government out of the woods on what they did with the judge have instructed the jury because there was improper just dorgan but let me tell you about something else i mean it's outrageous conduct you know looking back on this and reading this is incredible to see how a mention of playbook how the reference to chapters how the links to a script not only affected ronald out because simmons and mr speaker mr seegers who as we look at the more factors he's a poster child for the closeness in this case jury can't decide on a murder they were running through every seegers so as we look at the more factors as they relate to this it's interesting because this court and some of the recent authority that we've presented to the court we can kind of bounce back and forth and see i think we've got some good factors is a close is it central issue office of the court being called rock and was there any mitigation done the walker case that we just provided there wasn't a i haven't found an instruction that was provided by the court it was merely an analysis of is this so bad i think we've got a good bunch of factors to the district court fix it that your focus seems to be on the allegations of use of the counsel that the argument i know you put in your brief and i completely take the point that casting aspersions that opposing counsel  present is an issue but you haven't talked about the extent to which the arguments go to the substantive testimony of the witnesses because i thought from your brief your principal point was that the problem here is that it made it look like these witnesses got their cues from this play book but they never actually saw the play book and nobody ever suggested they had seen the play but by the prosecution's argument made it seem as if they in fact were taking these cues their cues from a playbook that they in fact never see i think are going for the biggest bang for the book in the book being the amount of time but you're absolutely right i think i think it the genesis is that as as as you look at the shoes issue you begin to realize boy oh boy he's calling out this chapter so and so it's trying to dirty up the witness chapter so and so but in preparation for for today and in consultation with with co counsel it just gets worse and worse and it's more objectionable each time i look at that language and realize that what the jury was hearing was these defendants are bad but guess there was language about well look this was said it's not good let's not do this again government counsel let's not talk about what the jury may be feeling let's not have language like you know mr doe is walking down the street that's the last time he's going to be walking down that street but then they said look the opening argument it was kind of forgotten addressin just really  concern or maybe the jury is not too focused in on that it was maybe this is the worst of the work and this is something that is kind of set out on a so this is at the very end seem to me that the sixth amendment tells us that we have to assume the process including jurors cares about the capacity of a defense defendant to fairly put on and have considered a defense and so but we know the next step is what should have happened we could we gave the district court what it needed just tell them just tell them hey look government councils spoke a lot a lot about this that's not that's not a thing you should worry about if that would happen i would be sitting there thank you rather interesting issue and i would think to myself well it may just go down the path of us we more but is if you think that there's a problem with the way that counsel described the playbook and suggested that those individuals in fact had taken their script idea from the playbook which laid out the way to do this then the question is does the prejudicial impact of that suggestion and materially to the presentation that was already made with respect to the deficiencies of the test and because i think of for example in north there was also a claim made th the specific instances that i saw at least when the when the prosecution's argument visa be the playbooks that sought to cast doubt on a particular witnesses testimony there's also independent submissions put forth during the course of the proceedings that already cast doubt on that individual testimony well with with seekers you had morning who brought in the previous statement the trial counsel had presented to him and that dealt with whether or not mr seegers dealt with drug distribution in the past so so pointing that out linking that piece of test that piece of evidence and that testimony together with a defense counsel that it and presented it that's a that's a big hit for the curious sitting back saying how much weight do i give that because that kind of links that kind of helps me decide whether or not attorney and that presentation to the court where the jury spent six months of their lives listening and trying to figure out a side i've run over  with position and then there's something that gets confusing just because of the i just miss articulation of the jury now that it's not clear where they were getting some unanimous decisions or not and then some of the new jerseyan to be disbelieving you know all the evidence in the case not accepting it not saying i'm dealing with not accepting that and then after we've gone through this we get the deliberations issue and after that that's when these notes come in and come in continue to deliberate same thing with the second now same thing with the third now it's not until april fourteenth when you get these two notes the more important which i think is the no indicating that this allegation misconduct and i just want to say i understand the juror who was communicating with someone in the gallery and that that person in the gallery had a connection with ronald alford that all proved to be correct so against that backdrop when judge lamberth gets this know that there is a juror who is writing something down surreptitiously attempting to hide it slipping into his eyeglass case and taking out of the jury room he has to conduct some sort of inquiry this is an anonymous jury this is a very high profile case with very allegations of of violence there's a reason why th the removal of the paper and so the concern was not a security one there it was it all seemed to be you know once i hear about this thing from somebody else i didn't see it i add to that all my feelings about this person in the back of the room and not joining us at the table going through the evidence but i would think that we would be real position to say those types of things even in a case like this are enough to that's how i read it he's talking about that this is an anonymous jury and without knowing what this person is taking out of the jury room what he may be writing down it's hard to know whether or not he's attempting compromise the non in anonymity of the jury and i think that fact finding that the content did actually present any security or safety threat and so that's why you know given the very rigorous standard of inquiry that's imposed on just records here  just don't know what to make of the absence of any finding is two two things the so what was actually on that paper or that it was our fact finding he couldn't figure out what was on the paper of that the e real motivation here though is i don't think it has to turn on whether or not there's a finding that the jury as a whole felt unsafe or insecure there was misconduct there was instructions to the jury not to remove their noise that instruction on the record it is no one  contested at the point that judge lambert said the marshals have given clear instructions to them not to move materials the jurors themselves represented juror ten said this is in contravention to what we've been clearly told you can't take anything doesn't then the other thing that confuses me about the case  no they can't take anything out i think that's exactly what he said and i can if you have them be helpful i guess because that is right i don't find that and that's fine and all i see is a violation of the court's instructions to the jury is a must not remove anything from the jury room i just haven't seen that anywhere in the actual instructions given to the jury it's not in the instructions it's one of the marshals told the jury and the judge indicated on the record this is part of the standard instructions that the marshals give to deliberating juries no one with the juror at the at the van when the juror had indicated that there was this allegation of no take i mean they the defense i think has not done a very good job certainly really breaking out everything that happened a lot of things are sort of lumped together didn't prohibit taking out personal papers and that's what she fears yeah i think the instruction is not to take anything out but the judge's indicated if he did take out a grocery list i wouldn't be concerned but the judge not personal papers but the judge doesn't know what he took out here and i think that that's a question of concern with an anonymous jury without being able to say what this juror was doing and i do think you justify this removal but separate and apart from that the importance of the able fourteen now is whether or not ultimately the no taking incident is sufficient to support the jurors removal it definitely was sufficient to support the opening of some sort of inquiry because the court needed to find out what was happening what was being taking the part of the reason why there are questions about dismissal that at least could be explored enough there's a security issue if i can see why maybe dismissal comes more quickly to the fore but if you take put that out of the field of vision that that might be appropriate if you didn't have testimony here from the jury from juror ten the four person the jury felt uncomfortable about this juror and didn't know what he was doing i believe he said this is not what we're here for and we're not supposed to be taking things out of the jury room we don't know what he's doing of the other jurors and i just want to touch on that when this issue came up the defense as a whole were against the judge doing any sort of inquiry he did the inquiry of jurors nine ten and twelve they broke after the break the parties reassembled and had a discussion on the record about what all this meant at no point during that discussion that afternoon after nine ten twelve had been more dear did anyone ask for the remaining jurors to be bored and this is pretty disgraceful this is  or are there independent obligations on a judge with our requirement of sort of searching and careful inquiry i think that that is partly a discretion that is a discretionary call on the part of the core and here the court's trying to balance two things he's trying to do a sufficiently searching inquiry to satisfy himself as to what the facts are because ultimately it's a factual finding that he has to make to support his discretionary decision whether he's going to remove this juror he's balancing that against not wanting to believe his handling of this incident was was masterful he was trying to get enough information to satisfy himself as to what was going on without delving too deeply into the jury's deliberations which you can't do under brown so i guess i just have to know where i'm sort of concerned in that is that since we don't have the finding that we had to do this for safety and security what we have is i think with the judge himself in his own comments recognize was at least some ambiguity as to what the instruction was to the jurors don't take anything you take personal things out so there's some ambiguity and we don't have a safety or say here we don't actually have a safety or security issue we just don't have that finding that we can as an appellate court can rely on what case would say that this is enough to remove a juror once we already know that juror appears to be at least a partial holdout on issues without from on that basis without having a warning my judgment of deliberation or nine days into deliberations regardless for nine days in the deliberations at an early vote i don't care of the path of this person also had been identified as a holdout why isn't necessary the standard and how was it ok i think the fact that the jury header or the jury had been instructed not to move their notes from the outset that there was to be sealed that that the marshal had given instructions to them that no one was contesting had been given that they were not or move anything regardless of whether the court thinks you know there are some things you could remove that wouldn't bother me if what he said was that they were told not to remove anything that i think it's his call and i think here he has it is necessary but was it necessary why w but it seems like what the trial judge is saying is that security concerns feed into the decision whether to remove the juror but as dr letson as there were no findings about specific findings about security i think he's implicitly at well he explicitly credited your ten and twelve overture nine and encouraging with your intent you know one of the things your ten said the concern for one is our safety we thought he should deliberate i should be clear so i don't think i will make sure we're very careful it's really important stuff the jury and removing a juror in the midst of deliberations that we're very careful about what we do and that we not sort of start making up connections that aren't in the record not found by a judge who's right there on the scene i understand here i drew a number ten also that speaks about it from his own personal perspective and said you know i didn't sleep too well last night i said we're here to do our job and i don't know what he's writing on there i don't know what it's all about personally i don't i'm disturbed it's not characteristic we have firm instructions not to remove any of the evidence or our notes if he's taking notes and putting in his eyeglass case that's a problem that's against the rules that's not what we're supposed to do that's not what we're here for this juror at least and he's a four person is clearly disturbed by what has happened so is it necessary now to remove this juror i would say that is that is in the other edge of version it is something that's diverting the jury from their is sufficient for a safety risk under these circumstances not just the safety risk in your question was was it necessary and i would say it's necessary because it is now interfered with the deliberative process this year is now not able to focus on what he's supposed to focus on i think  the judge i think asked a few times does anyone else is there any reason to think that anyone else knows that office now and then to which the response i think is generally no and maybe that's what caused the judge  interviewing other jurors but then it still raises the question why not because because then you're introducing potentially something into the jury that they don't know if you start asking questions about did you see it your do this that and then you only heighten the concern about jurors being distracted so without any indication that any of the other jurors were aware at least on this issue i don't think it would have been appropriate to conduct any further inquiry of any other jurors moving on to the deliberation issue once the court opens the inquiry into the note taking juror ten spontaneously comes out with all this information about what juror nine was doing he wasn't delivery wasn't sitting at the table now you have something that animates those earlier notes and i just want to point out that from the beginning even from the very first note the prosecutor said this looks like we might have a juror who's not deliberating because of the language of that you know and i would i'm not suggesting it's clear they were certainly ambiguous but there's certainly a take on those early notes that categorical position that the jurors expressing that he won't look at any evidence that he won't look at any evidence for the government or the defense that this is maybe something more than a mere holdout but that any ambiguity is swept away when you're ten is actually for a year because he says this juror has not been deliberating he won't look at any evidence he sits against the back wall he says i've made my decision from just parade of a bunch of people not one of whom i can believe for two minutes and so i've got a beyond a reasonable doubt instruction here i can't believe anything anybody is saying i can't possibly get to beyond a reasonable doubt who can trust any of these witnesses the jury would that be an irrational thing perjury to sign i believe in this case without any come without engaging in the deliberative process yes that is a rational that is stonewalling that's their closing instructions it is your duty as jurors to consult with one another and to deliberate with a view to reaching an agreement if you can do so right so fur jerusalem as on the first day and express a categorical position that is rejecting all evidence and then do not consider the evidence look at the evidence or evaluate the case and you would that is a man put your head walked in the first day and said i have listened carefully for six months and the government cannot get this many people to agree yeah they've all got problems with the collective in and says i've been listening for six months and i have made a decision based on the evidence that that is directly what happened in the baker case and i think the court in baker actually said that that is not the second circuit case obviously not from this court but that is refusal to deliberate it's not enough to simply come in and express a hard and fast view and then not engage with your peers you are here to deliberate deliberation involved in bodies some conversations some attempt to  is predominantly testimonial i have listened to this i can't trust anything anybody's saying they have all got rap sheets as long as my arm i can't trust any of them beyond a reasonable doubt i not after a six month trial i don't believe because there's a wealth of evidence here it's as if he's ignored the evidence is i think you would agree though that as majority this evidence you could you win this case if all the testimonial evidence from both sides was thrown out and you only looked at the non testimonial evidence could you establish beyond a reasonable doubt ok so the testimony of dan's makes or breaks this case right and the testimonial evidence was very very heavily people all of whom one by one you could have many reasons to just believe i understand the government yeah this is the people don't do their conspiracies with the people of their most upstanding citizens and so you've got this is how you have to prove your cases but i don't understand why you would be not grappling with the evidence to say this is a really strict beyond a reasonable doubt standard and i can't i've looked all these years in the faces i care of these witnesses and the faces and i can't trust them at that level of certainty on either side what i drive that perfectly legitimate for a juror i can imagine then that's not a legitimate decision for a juror to make but that is different from a juror who comes in and if you look at the first no potentially going on one is whether the juror is making an assessment of the evidence the other is whether the jurors willing to engage with the other jurors and i think your argument seems to be that even if the juror has engaged with the evidence and reach a conclusion based on the evidence there is still an independent obligation to confer with the other jurors about that's how he is instructed that's what he was instructed to do he did not do that that is that appropriate is that right i mean we have language for example from the supreme court's opinion allen which judge lamberth read in his instructions i think that talk about the duty to confer with other jurors but there it can't be that you have a perpetual duty to with the other jurors i mean in fact that of course at some point in the deliberation suppose you deliberate for a little while and you simply vision impasse and the juror who's a hold out this is what i hear what you're saying i'm not buying it you're not convincing me i'm just  going to talk about it anymore because we're going around in circles i'm not going to deliberate any further i'm done deliberating but this seems like that has to be fine even though there's a failure of deliberation at that point the jury has said i've looked at all the evidence i reach determination and i can deliver it any more conclusion based on the evidence you still have a duty to engage with the other jurors because if you don't do that that's correct because if you don't you're not deliberating and this year and judge lamberth found this had a fixed view from the outset that's what the so and i think that factual finding is supported by the record it's supported by what your ten said it's supported by the notes because when you read the notes in conjunction with what you that this juror was not deliberating the difficultly with once we get past that and look at the deliberate deliberation process this isn't the district court judge said in ruling on that that he had to rely on part in making that determination that he hadn't deliberated enough on his own facts about looking in the jury room and going passage very remini here and shouting facts that can't be cross judge heard coming and going he put it on the record counsel could ask questions about it if they want to ask questions it's a fairly discrete fact it's something that the judge observed and i think it can be part of th long as he lets that the families know that that's part of his finding really they're supposed to then however are they supposed to question how many times did you walk by the room how many times did you hear it when they can ask the judge those questions and he can answer them i thought one of the reasons that we don't live judges become fact witnesses in haste this is because we recognize as a practical matter that there is no way to test those facts but no one's going to cross examine the judge but they can ask questions to put to have the court on the record with the basis of the court's ruling yours that's done i said i really wasn't part i'm relying on my own personal facts that i discovered about where the judges where the where that your was sitting and there was no the key thing i think was and i was getting shouted down when i tried to engage in this process and this key finding by him i didn't hear any shouting that was critical to determining whether or not he had been deliberating and just getting shouted down by the findings about the guy not being shouted down into the case i think the other factor the primary factor here is that he made the finding that your town was credible and i that i didn't say that wasn't i mean racially you could have written opinion that way could've left this out all together what do i do with the fact that he said he was relying in part on his own observations i just at the judge's observation coming in going in what he heard didn't hear there is no shirt on the record i don't think that's inappropriate for him to take into account even if that were thank you fact i don't believe it was the key fact if it were a yes i would say it was still appropriate further questions on this issue i can move on to the second on the question of the overview  in the more case that the court was questioning what the standard was that that was applied in more cases i think it actually isn't very clear more as in this case was a case where there was no overall objection to the overview testimony and as i read the more opinion especially what i think is the court did what it sometimes does and says really under any standard this is harmless so we don't really have to resolve whether it was or wasn't playing there this case is clearly playing era case however there was no overriding objections now actually a number of them here to the hearsay objection so you can't really take from that the court could not have taken from that that there was an overall objection to this line of testimony so that objection has to be reviewed  receiving end of the fanservice decision in the griffin case a few months before put this witness on and so did the united states just make an official position of the circuit was wrong and that it could do over be witnesses i put aside what if you don't know when you're doing you're saying if your trial strategy what are they going to object or not so try to make sure the government itself had made a decision that this was a legitimate type of witness i don't know if they sway i can't say whether the trial team was aware of th circuit's decision but i can say that it's not governing law in this jurisdiction if it had been they certainly would have been aware of it and would have abided by it but it's not so the fact that another circuit took the position really doesn't govern what we were required to do in this  case we put the evidence in the defense didn't object to it had they objected perhaps it would have been a different result but in the appeal and more to the government take the position that the testimony you know really the overview witness was ok or  in our brief in detail so at the end of the day everything that came in came in through other witnesses as well and for that reason using a plainer standard there's just no basis for reversal  court does not any other questions on that i think that's very sorry to this just popped back to the jury one thing what time the deliberations start on the first day morning or afternoon i don't recall  also started with the instructions all start there as well the instruction did do the primary thing that the instruction needed to do which was it called the jury off from the improper use of this testimony it also gave the mid child instructions given off for a four b evidence and so to a lot of the evidence the jury was aware of the purposes for which it could be given because they were told this is being given to you to explain why they entered into the conspiracy  so that makes it i think slightly different for meriweather because you have to view the instructions as a whole but another component here is the defendants it sort of it at the last minute came up and said well we want the court to articulate all the different reasons that this evidence came in but never offered an actual proposed instruction offered to the court to evaluate and i think one of the problems here and your honor to serve touched on this a lot of these items of evidence could have come in for multiple purposes and so once you start articulating this out of that the next comes in for this reason and that reason in this item of evidence coming for any one of these three reasons and for an example mr sievers the evidence of his one thousand nine hundred three drug dealing in the area in a tree that was offered to show his connection to the area and that you know he had prior truck sales that's how he became a part of the conspiracy that was selling in that area it also became relevant later in the trial when it became clear that mr seegers was disavowing knowledge of possession of the drugs that were recovered thank you have to just clarify one thing you had been doing drug dealing in the area and that showed how he would get into the conspiracies oh you just send one sent me in one of the things that i think counsel has confused quite frankly the evidence the ready willing and able evidence wrong now for it's pretty conspiracy conduct to carry ball murder conspiracy requires proof of the meeting of the minds there has to be a showing that people got together for a common purpose to do a common thing all of that evidence went to  explain and that's why the why not just that the meeting occurred but why the meeting occurred is actually very important explain why the conspiracy wanted to do business with ronald alford and why ronald after my guess that i was very apologetic to the more general ready willing and able focus of their operations that makes him someone that they want to graft into their organization so that's part of the meeting of the minds the evidence was they wanted him well i think the jury could infer that from the fact that he is working in that area and it also puts in there doesn't that mean that any time you find someone who is engaged in criminal activity in the same geographical know very up to the years later a conspiracy develops so you know well now we know why but you have to have the other part of the meeting of the minds maybe you have to show both parties re here and the other part here is that sears became involved in drug dealing out of williams's house and was being supplied by more grain and eventually was approached i'm work to to murder diane luther so you have all that i go you should see point from my sure way goes to making the fact that years before he had been dealing drugs in the area anything other than propensity evidence it wasn't offered for propensity it wasn't argued his propensity it was offered to explicit that he had been jailed but he had been away had come home so you know that gap in between is explained by the fact that there was an absence of his presence but he comes back to the same neighborhood and then becomes part of this conspiracy which now in the meantime is has become very active in that area so it does show that connection and it was offered for that purpose so my point is simply that you know a lot of these items of evidence could have multiple purposes when you start detail and all of that beyond the fact that you get a very confusing instruction and i actually think would not have been helpful to the jury it also and tends to highlight the significance of the evidence and and i thought i heard counsel say that he would object to that kind of it and shushing because it would heighten and highlight the evidence one question i had about this  and again it's they don't want it all in what a jury would not be when they secure an instruction and then there's references to specific pieces of evidence will they not think that instructional only applies to those actually think it only applies to those pieces of evidence so you had the evidence that predated their entry into the conspiracy so when you view all of the instructions as a whole that evidence is that's the other crimes evidence that's the evidence they're not on trial for that's the evidence that they're evaluating under the motive intent opportunity  mistake or accent you do have a couple of other items of evidence that are highlighted absolutely those were highlighted throughout the trial because those at those points counsel asked for special instructions and they got them so a you know it's just repeating that i don't think as a whole reading this instruction in the way the instructions were given the jury was going to misunderstand that it was only those items of evidence that the that mode intent opportunity and structure applied to because they were told the date at which each defendant entered into the conspiracy and they weren't the way the conspiracy developed the develop the relationship between conspirators and victims after more more i think curtailed somewhat what is intrinsic evidence and specifically and more we have put in evidence alfred be evidence about the so called police shooting right you didn't think that was part of a concern transect conspiracy right under the under the arc three more understanding of the law yes we did that statement to his probation officer and explain i have a gun because these people have been harassing me and i got it from a protection that shows he had a gun he was willing to take violent action against these people if necessary and later indeed did kill arrange to kill kerry ball and just thomas so if you can actually that evidence coming in a comment was made about this was at the scene of a police shooting it was there was no indication that he fired at the police there was some discussion about whether or not there should be further charges on it ultimately council said leslie long if it's your position the united states position that it's it is perfectly fine to argue to juries that ready willing and able in the context of this case and given the instructions that were like able language relates to the evidence as to which there had been instructions this relates to their entry into the conspiracy and yes that does it does show that they're ready willing and able that is the meeting of the minds they are in a position where they can come into this conspiracy and offer something that's of value to the able on the part of the conspirators to to combine with him because he has something that they need right the testimony is that around this time i found it correctly gray more had been falling out intermittently and so grays looking for regular supports his source is a big supply and ronald alford can fill that gap it's also from ron allow for twenty of you because he's now in trouble with gray because of the carry of all murder he has something he can get gray that will get grey office instructed that they can't use it for the bad act propensity i mean you know i think we it's a principle of this course always follow that you can't take the worst construction of the of the argument and assume that the jury gone down to that i think here given the fact that they were properly instructed you luthor issue yes i just wanted to say this the testimony that the medical examiner gave about diet the fact that i am loser had not engaged in a struggle that was based on a photograph of diane luther's hand showing her intact  and that the medical examiner said the males were come loose if she'd been engaged in a conflict that photograph was independently authenticate it by shelley dabney which was done with his daughter so that's that had nothing really to do that's not affected by the  autopsy i think this case is governed by more on the fact that for the narcotics conspiracy and the rico conspiracy circumstantial evidence of the drug dealing is sufficient there was more than enough circumstantial evidence of the drug dealing in this case and even on  specific items of evidence as to which agent walker testified as to each of his of those evidence and we laid it out in our brief there was other evidence about what the substance was some by admissions for example the cute little prick of to survive even the confrontation clause violation so moving on to the closing argument we agree with that but the motif overall was just a rhetorical device to frame the evidence and they framed what the jury had seen it in fact that my reading that i take the point that that's the way you're describing it now and i also take the point that that two we're going to talk about how it is a number of the defendants and some of the defendants defense attorneys took advantage of patrick and his playbook on how to put together a false defense it's hard to read out without thinking that the assertion being made is that somebody actually looked at the thing and took lessons from it on how to put together a false defense and then later on i think this is also in the morning before the break to varying degrees into various states you saw each of the defendants following pages from the playbook and what i want to do is to go through an order in the order in which the defender presented their casey's defense argument and then highlight some of the defense witnesses and so there is this flavor recurring flavor that it's not just that i'm going to use this as an analytical rubric for descriptive purposes it's that this is a thing that actually people looked at and they got their cues from it and as as counsel argued it lends work to the notion that there was a collusive aspect to this and that everybody was operating off the same map on how to put together arguments  this sort of situation i think it is fair comment for the government to say or for a party to say you can look at the tactics that were employed by the other side and ask yourself whether or not there's any credit credence to what they've done and what they  in a good portion of the playbook i think falls within that i gree your honor did it occur to i don't disagree with you at that level of generality that that's within the domain of appropriate argumentation particularly if there's an instruction as there wasn't here that arguments of counsel are not evidence but where the assertions being made not just that their arguments don't make any sense but that the reason their arguments don't make any sense is because they were opportunity at the jail for them to get together people could pass notes under that your jail doors and share information all you needed to know what someone was in was indicted for and then you could make up a story to support that indictment well that goes the other way as well  notion that they could be together cooking up a defense absolutely had supported the records through the defense that the defendants themselves put it that the jail walls are permits information flows back and forth people make things up patrick interest lighters were an example of that and certainly i think it would be permissible by inference to say what you see patrick andrews doing that's what anyone in the jail can do and we see that the conduct here and by the testimony you had here and some of the false words that were displayed to you here that that's exactly what they did but do you think it doesn't add anything to a mode of argument that says that what you heard from that witness doesn't make any sense here is what they were really trying to do this is what anybody would do in that kind of situation here the type of the you try to show that it could have been anybody else you try to show that everybody is out to get you you try to intimidate witnesses you try to get them to stop testifying that way that's all generic stuff that we can understand but the do not think it adds anything to say and actually there was actually a guide that told everybody how to do that and they all gathered around and they looked at the guy and they they took lessons from that guide and then they used that guide in the way they presented their case doesn't it add something to i did a lot of stuff going back to the farm levy to pursue for a point that you don't nest can assume that the jury takes the worst case instruction i think the the rhetorical device here is i don't think he was actually saying and i don't think the jury would have taken it as he was actually saying they literally read this because he said  that's correct but but i think the the argument was really more isn't it interesting that all of these sorts of things are happening and again even though they had some i was reading right evidence that there's glue jennette the jail that people can talk to people transmit information there is a factual basis for an argument that they would know these kinds of arguments is that patrick andrews was a defense witness he did say these things this was his mindset about how to go about conducting a defense and you see that circle circle of collusion following the playbook that's what he said right that does that not sound like a legend that the defense into the defense first of all all the defendants they all got together putting them all together out looking at them individually and there was a conspiracy well doug said amongst them to lie to you jurors and this court i actually believe the legitimate having it to join the defense together for the government's argument the defense to jury has to if you each defendant individually but this is a conspiracy case our whole theory was that conspiracy wasn't i didn't understand the conspiracy to be to commit perjury and fraud on the court and that included defense counsel the jury had evidence that a defense file belonged to deon oliver passed through the hands of a witness from long down for and ended up in the hands of a witness for franklin seeger's and it that wasn't proven and the conspiracy is your third defense given the fact that there was a conspiracy proven of the conduct of these individuals the narcotics conspiracy the continuing nature of even some of the coconspirator during the trial i certainly think the jury could infer from that that that has been a little bit of a cart before the horse because he hasn't gone to the jury yet and so the the way you're telling them to even look at that decision about whether there was conspiracy and the things to keep in mind that there was this defense strategy conspiracy to take that with you in there before you start voting on these are conspiracies the fact that they that some of the conduct that we saw suggest that they were continuing to inspire throughout the trial i think that's fair game do you think that because i'm getting confused then because i thought you didn't agree with this this rebuttal argument but now you're saying that it was fair game the whole playbook the point that i don't agree with is that they actually to the extent and that's why we say the remarks are ill advised to the extent we're saying they actually read it there's no factual basis for that but the inference that they got together and that's what i thought your honor was that i'm sorry that they actually read i take the notion that they actually read conspiring together i think it's fine to say that what they saw in the behavior of the witnesses in the behavior of the defense that was presented was a conspiracy to put together false evidence what happening is what the juries hacks devaluate is this defense case the defense put on the government's position is these witnesses are lying to you they're all lying to you and you know they're lying to you because you're engaging in the kinds of patterns of behavior that a witness called f this was a nefarious conspiracy that trans transpired of the course of years and here's the various things that they did in coordinated fashion it's no surprise that they would also have a coordinated outlook on how to defend themselves in the event that their actions were uncovered and there's this sort of here's here's the source of things that they might do and then the last step is and you know what we don't even have to ask about that whether that's possible to infer because we actually have something that shows that they knew what they were doing and here are some letters that show that there was in fact a coordinated strategy doesn't that last piece of it add materially to the suggestion that they might well conspire in confederate on how to put together a coordinated defense strategy to say in fact they had a they had a guide on how to do it and i know i'm sorry i'm sort of slicing hairs here of it but it would be ok to say and you know because here's a defense witness that the defense called that this is the kind of things people in the jail talk about to cook up a defense and all these people were in the jail together and we know from the defendant's own testimony that the walls of the jail or permeable and that all this information gets translated so the fact that patrick andrews a defense witness is talking about doing all these things and you've seen all these things happening in the trial say on that point your honor i believe this really was a strong case and other defendants think otherwise because they were all cooperating witnesses that your credit has cooperated witnesses and why should credit them there were a lot of them there was a lot of evidence here you also have  issue of the misconduct the jury saw unbelievable things on the parts of the defendants in this trial they saw deon oliver for hire his attorney so that he could cross examine his ex girlfriend per se and then we hire them for closing arguments they saw  added very much to how the jury feel the government's evidence or the defense evidence quite frankly because the jury saw it all and this really was a unique trial in that in that sense what he was doing but i don't think it would as long as it didn't relate the to the case it wouldn't be a problem so the mere notion that other jurors might wonder what he's doing doesn't raise a safety concern and in this unknown one person government talked about how all the jurors felt this the only word of fear or concerns about come from one juror number ten and let's see where this came from this whole notion of inquiring came insight into that even if the jurors may not think so a juror's difficulties with others can manifest itself in challenges in and  dismiss missile and more importantly the inquiry was not sufficient i noticed that i'm the one time i didn't want to say briefly this stepping into the jury room judge labor said this juror was sitting on the back wall quote just as the testimony was yesterday his personal observations clearly affected his credibility findings and were directly related to the record reflects at least a possibility that your help because otherwise the notion of being a hold out with all the pressures and bullying that goes on in the jury room if you give two jurors the chance to sit down and come up with with accusations like this and and and have the government usually uses inference is the overview issue the the are you to fall back argument goes well there's overwhelming evidence so any mistake is harmless i wanted asked this court to consider that as we presented it in our brief we say it was a case of a trial by rumor and self serving stories the government says well we will we say petard oh they say potato that i know that doesn't help the of cooperating individuals and we listed for the core why those could not be believed or suggest the court this is not a case of overwhelming evidence it should not be used an excuse for errors gilmer two minutes i only want to address the point about what the terms are ready willing and able what they brought to the table what the defendants were up to all comments made by the government counsel in both their initial closing them in the rebuttal closing i just want to point out that although they say it's true that some of the things about ronald alford were discussed that way in advance before and there was a specific instruction the whole business about his dealing with martine is out of that was not disclosed that was there was no rulings on that and yet that was also going into and i did the system our brief at page one thirty nine shows you what he was up to he was ready and able to do in the conspiracy he brought a lot to table with his experiences there specifically referee his dealings with martinez same thing with mcgill very briefly give the same page after they caught him they come back here they talk about both of these things and twice they come back and they say that he did some violence side by side with grey and more and that tells you what these defendants were up to and i suggest to you that maybe you could construct a proper explanation to the jury as to how they should be considered in this case with me we kill the government can't they can see there but even with even with ronald alford and of course all the other stuff that was never mentioned all the teenage drug least also two minutes but your honor with a last name like her restaurant i'm sensitive to proper pronunciation i say that because i i'm curious about your question to government counsel judge three of us i hope i pronounce that you did think of when you mention that there could be a process of identifying points in a case  whether something is found whether there's a connection between two defendants whether government counsel can argue look you can call into question what that witnesses say you can doubt the attack that was made on that witness i agree this case the interesting thing is that we focus on the play book and what was said and how it was said and how it permeated the closing argument but the very first step towards that play for is really an attack on the constitutional right of the defendant confront witnesses because if defense counsel all get up and attack a cooperating witness we're not going to try and jump on each other's questioning but it is not fair for a government counsel to say boy they did you saw what they did they really just hammered that guy well that's ok they can say that the hammer but to say that they hammered him because they got together and they colluded and that collusion is connected to fraud that's where the problem but even before we get to the badness of the playbook i think the government closing argument started to attack the constitutional right of each of our clients to questioned it if i just could say one more thing we have the opportunity given the court's request last friday kind of went back in and detailed everything in that in that argument more so than before but we came up with some steps there were fifty four instances where government counsel made specific reference to a playbook to a false defense to a church and defense attorneys making a false presentation to a script to a chapter government counsel in their argument in their brief said that perhaps maybe the initial part of the argument was the one that really kind of got a line it's not the case there was lunch time and when lunch time finished everybody came back nice to see everybody again government counsel said let me let me bring you back first things out of his mouth plate so those fifty four instances when i argue that it  just correct there's something a little unseemly about saying oh here we are sent back to him and he's just now going to tell us without giving us a chance to respond but let me just have one other point there's a certain amount of judicial efficiency  recognize that trials do involve human beings and of course that includes judges and i don't think there's any question that judge lamberth was upset at this for me gills and for russians his outbursts and certainly by the time he'd be able to stun belt i can understand we did not contest the judge properly removed him but removal from the courtroom is intended to be a hit to prevent further disruption it is not intended to punish the defendant for what the defendant has done and that's where the reason to reclaim the right comes in because this court i mean the supreme court has made it clear that defendant should under most circumstances have a right to reclaim his right to be present if he shows he can comply and i think that's what happened with mr mcgee over him he comes back into the court room he's allowed to be here except when any correct although i think it's important when i said you know this deals with human beings it also deals with defenses human beings and i think that mr mcgill's counsel was right when she explained how frustrated he was that doesn't excuse behavior but it does give the judge a reason or should have given the judge a reason to say ok but he's calmed down now can he behave and he did behave in the courtroom it was only you know but then the judge says no you know get a chance you this is one strike  potentially inviting a mistrial at the end of the proceedings and so i can see why doing so in the presence of the jury is a particular cause for concern on the part of the trial judge and is trying to monitor the courtroom because he's concerned that another outburst you know additional complications than simply the outburst but in reality of course keeping the deal out of the courtroom i think co counsel i think have an argument that that just emphasized that something pretty serious was going on because we deal could even come back in the courtroom practically everyone sort of clarified the impact of the exclusion so this is near the end of rebuttal that he went out to the judge and my recollection is that they do the instructions the next day yes ok in fact they discussed the instructions some of the because they had somebody like i said he's taking out that day's about over and then all the jury instructions were completed the next day i don't know how long they went on for i believe so they were all started they started the next day i don't recall right offhand whether i think he finished it all in one day ok and so that he missed all of that right so he missed that day and then he missed my dears about yesterday remove all yeah and the verdict burdick's yeah ok we all sense of how much time that ended up to i don't but it added up to some pretty critical points in the trial frankly and that's why i think this court and gordon founded talk about the prejudice that the jurors might speculate  the rights of the individual to return with the rights of all the other defendants in your argument argument in this case that your clients outburst had prejudicial impact on all the other defendant s how does a district court balance the rights return with the obligation to protect all of the other defendants against the risk of out well it was constitutional rights competing with each other right now all right nothing you can say to convince me that he wouldn't do that again i don't think that the case law permits him to do that in the absence of him doing it again this clear that if there's repeated misconduct you have to go out no ok now i'm going to be a good boy i can come back  would have an outburst out you go again at a certain point the judgment stopped but i'm not aware any case were one strike and you're out and i think i suspect and i mean to put words anyone's mouth but the government is going to get up here and say this wasn't his first strike he's been saying some stuff in the court room and been told a number of times if you need to be quiet and i think that was there so my that's probably true of a number of the defendants not all of them i don't know that's another issue it wasn't his first but it was it may have been his first time too but it was his first time being told now that you're out there you don't get to see the jury you'll get to see what happens in this trial you didn't get to hear what happens in this trial unless you you let me take you with duct tape and so that's the that's the point that we're trying to make is that the judge needed to give him under the i think the case law the judge needed to give him an opportunity to reclaim his presence in the courtroom when he behaved appropriately in the courtroom out of the presence of the jury there was no reason for the judge at that time you can klute that he was never going to well that he was never going to conform his fate or begin the removal from the courtroom is designed is to prevent the disruption it does not designed to punish the defendant and we respectfully suggest the judge's comments indicate that's exactly what happened  put aside the first issue which related to the improper cross examination of oliver by the by the government using didn't she lie questions throughout the cross examination but i don't i don't even have time to go through the two issues i chose with just four minutes and two i think i would first of all i would just urge the court to look at these two issues and you all three of these issues very carefully because i believe these are two the strongest issues in the case although it's an individual issue and it's the government's  with respect to one of them the first issue is it is really one of the most outrageous things that happened in the case  grand jury about a completely unrelated murder of of a of a fifteen or sixteen year old boy named demetrius greene that the government's theory was she was  mistaken she was actually talking about the murder of richard simmons in a completely different quadrant of d c he was not a boy not not even close to being a boy and and  the you know the government deliberately not not just made a mistake i used the government of bad faith here there was no basis for their theory at and number two they knew there was no basis and as a result they actually got permission from the job to distort the evidence to deliberately distort the evidence that was we go through this in great detail in the brief they say they told the judge we want to exclude from the jury's consideration the fact that the murder happened on forrester street which is a completely different quadrant of d c than the simmons murder  and the judge said i can't go right ahead and do that oh a little trouble understanding how this sounds a constitutional problem because you had the full grand jury testimony and you had they  it was good government or not there was nothing to keep this from the jury other than to teach it decision by defense counsel well my recollection of the record is that he did ask miss rowe bliss on cross about  pointed out home i didn't only because despite the three hundred eleven page brief we had to cut out an enormous number of our arguments and also to reduce the size of the arguments to get it even within three hundred eleven pages that gives you an idea of how what a circus trial this was with so many terrible errors but so it's not included and you know you can leave it to dion all over to raise that in a twenty two fifty five you  over has the mentality of an eight year old he's not going to do very well on his twenty two fifty five by himself where he doesn't have a lawyer to represent him but i think it is infective assistance on its face and i would ask the thing the court to to recognize that in the opinion but but that does it but but the lawyers failure to do to do what he should have done judge doesn't excuse the government's conduct here and it doesn't excuse the judge's decision to allow painterly misleading presentation to be made to the jury by the prosecution the prosecutor made his made his intentions very clear he said i i don't want the jury to be confused by a reference to force the street what kind of statement this is that he the confusion was that his his cock i mean the theory would be discredited by the jury if they knew it didn't take place anywhere near the murder of home richard simmons and moreover i mean just look at it on face the the force the street murder was involved a fifteen or sixteen year old richard simmons was not he was he was a grown man there's no there's just no basis for the prosecutor murder and of course she was the store government witness why didn't he get why didn't he get her to say oh yeah you're right that was actually the richard simmons murder i was talking about he never said that so it and this is the prosecutor hart on this misleading evidence throughout the case against the oliver in in his cross examination of the on all over because we say in the first issue we raised was totally improper because of the is she lying why questions which repeated over and over again and summarizing the worst parts of the case against all o he also mentioned it in his rebuttal argument which we've the same rebuttal argument in which he made the play book argument that has rightly focus your attention on  o i think that's you know a very serious error it's clearly prejudicial because the evidence as the description of the evidence shows the government's murder case on simmons was in more there's this question about the alternative of conspiracy yes and in more the court decided that there was a forfeiture because in the opening brief the conspiracy alternative was only dealt with in a footnote and i'm wondering whether that was it carries over to this case because in this case the alternative of conspiracy wasn't raised in the opening brief at all me my our opening brief on appeal ye that it was reasonably foreseeable to all of her that rainer would use the go on that he didn't just borrow from all over shoot somebody right away ok so you're accepting that th jury on the eating and it did give him it iranians instruction on aiding and abetting because the jury might well have convicted on the aiding and abetting theory you know we don't know but it's it's a reasonable possibility the government in its argument on this issue i believe only talked about the aiding and abetting theory so that's another reason to think that the jury might have convicted on the aiding and abetting theory they didn't even more so that may distinguish this case for more as well but i mean the government has essentially conceded that there wasn't sufficient evidence on to convict on the aiding a for they have not they've she's explicitly said we were not challenging that but there really is no more evidence to support the pinkerton theory than the aiding and abetting theory and in fact we say that all of the evidence presented by both sides in the case supported the defense theory that he didn't know what was about to happen after all and i mean it it's worth mentioning that he cried that when he heard that when he saw when he was we counting how floyd was shot and he was how shocked he was that's the government's key witness against him testifying to that thank you so there's nothing to support that conviction and i think we also have a spillover argument which we we think is a very strong spillover argument it's also retroactive miss join your argument and we think it's his mental evaluation and disciplinary for what you see department corrections i think i think our brief lays it out clearly i would want i just want to mention that the importance of being able to have that having the sufficient time being allowed to use the game more significance because later on in the government closing the government used lincoln hunter and painted him as a weak victim that seekers and his counsel were beating up that's a joint offenders if you world war so the significance of not being able to use that to confront mr hunter on the stand to question him about whether he has propensity for violence whether he has an attitude towards women things like that month or so before we certainly would have been able to probe the line of questioning we certainly would have been able to ask other witnesses about what they knew of lincoln hunter because there was a government  line of questioning that dealt with lincoln hunter diane luthor their relationship the relationship between them and mr seeker so he did leave the defense a little weak in the trial the trial court found the evidence  respect to these records and these just work for whatever reason were included by the bureau of prisons people as top of the government had anything they didn't turn over to you or the government didn't submit the proper counts we asked for to reverse those the drug counts and spillover into the rico counts and the rico acts i asked the court to look at the narcotics conspiracy focus on the timing that the government alleges mr seegers was posed to have participated in that conspiracy and if i made it very briefly the instruction by the district court was november one thousand nine hundred ninety six the final instruction was november one thousand nine hundred six there was no evidence that the government introduced the trial alleging ninety six activity november ninety six activity on forward with the exception of what they link up to violence that occurred between with diane hoover the only other evidence dealt with one thousand nine hundred ninety five and then there was the other  although they involve two different convictions the first one is the rico conspiracy and the point i wish to make in my remaining three minutes is that the government relied in large part tennyson's was one of his partner we don't challenge that as far sufficient security our challenge is that the fleming kenneth simmons conspiracy is not part of the more great conspiracy and we base that on several things the government response that no they were injured interdependent they were part of the same conspiracy they supported each other the facts are that no witness ever claimed that there were occasional sales both from more grade end to more very of drugs these occurred over many years they hardly support the conclusion that they were supplier or purchaser from or brick more importantly mr kennett simmons was never indicted in virginia mr fleming and significantly if the court looks important part of the government's attempt to convict candace simmons was the introduction of wire taps these were wire intercept government says they just discovered them yet now they claim that they knew that the fleming kenna simmons conspiracy was an interval part of the more great conspiracy for years before that they never discovered the wiretaps that essentially prove the wrongness but that was their excuse for like the school the point i wish to leave with the court here is that fleming kenneth simmons is a separate gross conspiracy yes they had some interaction yes they knew each other but if you look at the government's own witnesses they say that flemmi did more i mean seven flemington scan of simmons were drug partners together they had different suppliers they had different customers occasionally they interacted but that does number one the conspiracy to kill a person the rama who supposedly killed chemist simmons's little brother but this occurred years before the second one is a conspiracy to kill one of the walker brothers in the actual death of one of the walker bush this was a bar fight that mr simmons wanted to take revenge or i mention these facts because none of them support the rico requirements for maintenance of an organization that government's theory that this was done to me tain his position or reputation is a nice theory they vance that in their brief but there is absolutely no evidence to support that no one testified to that there were documents about that no evidence all that all the support the theory that this was done to hence his reputation in the organization now goes for both the rico and the viper i appreciate the court's time at james's girlfriend we submit that none of these our crew that james knew that one and was told have thomas killed the government points out that there were conversations about the plot to murder thomas and they took place at fresh here and that james was present during these conversations and they cited page one nine hundred ninety one of the joint appendix however that page discusses only that james being at push here he would come in and say that he saw thomas there was no testimony anywhere trial by any witness that james was present at any time when there was discussions concerning the plot to murder thomas moreover even  if james thought there might be something to be done to time as there was no evidence emitted by any witness that that something was murder and i believe the cases are him to pharaoh from the circuit wanders as alan from the ninth circuit  third circuit which are discussed and page one third of the reply brief require that there be proof that the defendant have knowledge of the specific crime and that's not happened here in his brief the government says well you can't convict him  on any level in regard to the cardoza murder we argue that there was only mere presence the government claims it has more than mere presence because on one occasion james told great he saw  think everybody agrees on who the weirs now might be on the grid but no i mean first off this was a statement supposedly made two or three years after the murder and to say we doesn't mean i that doesn't mean that that we is just a figure of speech and even no rational jerk could could take from that evidence not here not in light of the other evidence absolutely not i think as a statement that was just gratuitous and r james alford was merely present and he did not actively seek out or look for friends lawyers three times tried to correct this because they knew how prejudicial this was going to be the government part every time and it is not an answer now for them to admit it and say well that while there was no prejudice this jury was told that these six years before he supposedly you want a conspiracy they were told that need to be considered plus the fact that roe after was acquitted of that was hidden from the jury even though it was viable impeachment and b beyond that the the evidence was in violation of the confrontation cause the evidence that was cocaine came from the laboratory evidence from a lab technician who had never even been working there at the time never saw the drugs never saw the photograph suppose a drugs they got were no longer available there's too much wrong here and the prejudice is significant this kilos supposedly was prominently displayed on the government summary chart it was or even the government's closing is proof that one of the offer was a major drug dealer which in turn was cited as the motive for his alleged participation in violent acts plus they brought in a nine hundred ninety one firearms charge for years before he supposedly brought to join the conspiracy and they are as judge millette noted they were heard there was a police shooting even though the government had given assurances that would never come out this jury was told that that two needed to be was directly related to this charge even though none of these cretins for your appearance will ask involve any of the other people named of any indictment they had was this photograph of a small cocaine baccy that was never even tested all this stuff was pretty considerably that they were focusing on an issue thirty c the ineffective assistance of coun represented help who for more than a decade as a cooperating witness alpo supposedly said won't help or was one of his top five witnesses how could it happen on tell you not realize that conflict were still how could the government not realize it as it set up this counsel didn't know of a conflict that there wouldn't be a problem this makes an actual conflict of interest because of the no while the government knew of the conflict that potentially could be an issue but yes i understand what the court is saying but no hearing was held on this made if the fact that the language of the indictment says shooting and you can't shoot someone without discharging a firearm i think that there is no error here so i propose to go through the issues in the order in which the he did allow mr melville to be present when the jury was not in the room but mr macgill had shown such a propensity to explode and continue to do so and that's a very important factor even after his removal on the twenty ninth the next day on the thirtieth he continued to do anything in the courtroom as opposed to outside the court room to do anything else when when he was in the court room well there was the occasion i'm twenty seconds from where he knocked over the chair and cursed at acting out and again outside the courtroom as well on the morning of the thirtieth which was the day after he had been removed there was an incident about him making so much more noise in the fact that the court had to have moved down to the cell block  so he was just yet reached his limit and was acting out in in ways that were very detrimental in a multicolored defending case this close to the end and i think the court did a very good job of allowing him to be there when it was you know the prejudice would have been or if he had done something else in front of the cocaine and career offender questions just to be clear and i went back and got through the market on this is actually kind of hard to tell because i as they did in their brief repeatedly below there was a lot of adoption of people's pleadings without explaining how they applied and so in part mr mcgill had adopted objections that were made by one of his co defendants and i actually couldn't find that document i tried to find and i couldn't but from what i did looking at it does appear that mr mcgill's objection was just you a claim that he was not a career ender it was simply based on in your discretion judge shisha and sense made out by the fact that he's a career offender however means that crack guidelines amendments don't apply to him they don't apply to the application of the two level increase and whether it's double counting of the firearm charge right and i believe we we indicated we believe that that issue is governed by but sometimes i think it's  in which case i think that that argument seems right or whether it was imposed and can junction with a bunch of offenses in combination including the two firearms offenses in which case you have double counting and i thought that one the reply  government had the relevant transcript pages from this robles the court looked at it the court knew what the government was trying to do the court approved that the defendant then had the possibility of listening whatever he wanted to do to clarify that and ultimately testif the government took an inference from the evidence that is reasonable inference it may have a different inference the defendant was able to produce that she was for the government smear the time was a she was confused and she was maybe collapsing she she was confused at this point i guess i'm wondering why it's appropriate for the government with its special duties when it looks at testimony concludes on its own nature is confused ences can be made when the government itself concludes that a witness this confusing things which i thought was interesting here the government itself has decided she's using things to then try to make it look plain confused by carefully carmina out what you use isn't appropriate for the government again this was all that it before the district court if i had just been in that and i think here the government had a good faith basis for thinking that part of what she heard did relate to the richard simmons murder because our evidence has been that richard simmons is the only victim in all of the thirty one murders involved in this conspiracy in which the victim's mother actually witnessed the crime and the statement that out in our view clearly related to the richard simmons murder that there is other information that she may have been folding in there that's fodder for cross examination and i don't think there's anything unfair about presenting as long as everyone knows what the what the facts are and the if you hadn't argued pinkerton below that's correct actually what we argued were facts we didn't argue as aiding and abetting or pinkerton we argue facts we argue facts in the light of this is a conspiracy this is what the conspirator said that he ordinary for the government to go look here of the elements for this offense gerry of them got the legal elements lingo here the facts that go with it and so was there was there any effort to show it was a jury you need to find you know reasonable  foreseeability is part of this conspiracy and here are the facts that go with it now we just laid out what the facts were of all the offenses and i think the jury's capable of sorting through that with the instruction and figuring out where they match or was there just to one thing was there just one sort of and any of that this is this is issues to attempt to address an issue by corporation in that way is improper unfair to the government unfair to the court and it's just it's not preserved so you have simply a situation where there was an admissibility ruling against them because of that whether brady even applies when the government did request documents from all the relevant agencies they don't argue they didn't request argument documents from all of the agencies and turned over all the documents you hadn't had no basis th conspiracy but certainly that undertaking a finding that he assaulted lincoln hunter with the assault with the intent to murder him means except at some of those facts and that incident also his simmons's issues and i went to court again to the right martin and the fact that since may have had a drug partnership with fleming doesn't mean that he didn't participate in this conspiracy and there was a wealth of evidence from  conspiracies the murders were that you know again i get into this at whatever to tell the court wants but our position is given the nature of this conspiracy the way it was charge among other things the conspirators were  committed murder street protects their position in the organization for the rico murder they have to show that it was expected of them as part and parcel of the participation in the organization and we think that all of these murders meet their criteria for a walk or murder actions as well as the allegation yeah i think to the extent that they're buying and selling from one another on a repeated basis and then doing things like bringing flooding into cocaine for more i mean it shows a level of involvement in the and in the workings of th because it was the interactions between those two groups so that admission is a long sufficient evidence report doesn't even need to reach if it agrees on the toms further that there was sufficient evidence supports as we need to reach the doing and helping the  the jury was instructed that he was not being charged with any event that preceded his entry into the conspiracy they were trying to that didn't even have to find an overt act there were other over and they were so far removed from time from the conspiracy and they were pretty certainly the police shooting one prejudicial one what basis did the probative force outweigh the prejudicial impact i don't believe th he came to join the conspiracy and what his role was in the in the what he brought to the table as we argued but frankly ninety nine we're talking about yesterday and that's for i just have a little trouble how far back do you get to go to there's another came from ronald out for ronald alford's defense and part of what you argued to the jury in closing was you know i'm a businessman i own several stores and i gamble a lot as an explanation for all where all this wealth comes from the fact that he's got this long continuing engagement as it is a narcotics conspirator with gray and even before negates that because that wealth has got to be coming from somewhere and it's not coming from history conspiracy conduct and to the extent there was any confusion at all the charge or it would logically have thought it was charged in the indictment you have to find it as proof beyond a reasonable doubt which is not the standard for four or  behalf of another cooperate or who is trying to get time off that's simply untrue representation of mr martinez in that time period i don't know if it was i actually don't know your honor i could find out whether it was in this jurisdiction or elsewhere is that mr martinez i'm not sure where he was originally convicted i wan certainly some we just don't know yet right but mr abbott had to his involvement this case was pretty brief it was about two months out a very early on as soon as he realized the conflict he got out there's no indication that he transmitted any it clear that anything that raises the mandatory minimum sentence is an element of the offense and therefore it has to be charged and proved beyond a reasonable doubt i absolutely understand very well i think i understand what you're saying your honor but i think frankly the terminology used by the supreme court to say it is an element i think really requires this court to conclude that it has to be charged and proved beyond a reasonable doubt and found by reasonable doubt by jury and i thought on planar this happens in drug quantity cases where there is a failure to submit to the jury the element of having a particular drug quantity but then on planar of you an appellate court will say well there's no way the jury could have found the defendant guilty unless they had found the requisite good drug quantity based on the testimony of x y and z and therefore it's not plain same comparable to that you've judged usually those are still coming in the context of sentencing guidelines in other words sentences well before well below the maximum sentence which is frequently by for longer and it's usually not a question of courts will say well if it's in the case of drug quantity at least we can reconstruct the evidence and we see that there's no way the jury could have found the defendant guilty unless it would have found the requisite drug quantity and therefore it's not  are not arguing with respect to the harm her criminal that it does not legally apply our or humid is soley that the judge has the discretion to depart from it that sever since the vasquez case the supreme court case of judges do it all the time and only they don't they do it frequently they don't have all the time it's a permissible request that some judges are granted there's no indication this judge considered it and they only let me just say a presence this this business about knocking over the chair it occurs on the twenty second of april he's already been excluded from the finalist corruption's he's already been excluded from the war dear of the jurors concerning the jury issue and it doesn't occur while the jury's in the room in fact the judge only hears a noise as the judge is going out of her and there's a debate as to what exactly happened but i don't think any of that vitiate the argument that while he was in the courtroom mr judge says there's i've never had that happen in sixteen years but mr macgill did he's not coming back there's nothing you can say to me that will convince me that he'll behave himself and i respect we suggest under the case law he should have been given an opportunity it's not one because of the it randi question and as to that if it's in a lean claim and this is just one of it i'm not sure it is that if it's in a lean claim how can it have been deficient performance if at the time of the sentencing the law was h judge let me be very careful about this i don't really want to it's not really my place i think to comment on whether mr alford has such a claim i have made it clear in our brief that we could see that you're getting interviews for play there and i'm trying to make my arguments as to why i believe it was plainer ok thank you government or a view that the people who were eating in bathing instruction was correct or close to being correct we strongly disagree the i thought that's what they they were arguing but the court did give a natural and probable consequences instruction which more help was playing their sect in the government or use their we somehow we've the our argument unusual argument that the general pinkard instruction which was never argued to the jury somehow see the floyd murder conviction i mean so how is it different from or in that respect because i take your point but i thought essentially the same sequence of events happened and more where there was also a claim like it's about aiding and abetting a potential international conspiracy what the more court said was that the failure of appellate counsel to raise conspiracy in the opening brief apart from the footnote meant that there was for fischer and here there was no raising of conspiracy final i understand your honor but what's different about my appeal is that basically this is a sufficiency issue that we raised it wasn't the jury we didn't even address the jury instruction error in our opening brief because we were raising the sufficiency issue rather than a jury instruction issue it was only when the government came up with this pinkerton argument which really has no merit that we even had to address the yates issue which which which was dressed in more so that's why it only appears in the reply brief arm replying to  rather clever argument that mr argo came up with to try to save the floyd murder conviction we were racing as even though we knew that the aiding and abetting issue was iraq it was there  again space limitations prevented me from wanting to raise that as a separate issue so it was only when the government came up with this day use x mocking of the pinkerton instruction which nobody argued  to the jury that's when i had to address yates and so i would argue strongly that that issue was preserved and and there was no reason to address it since unlike the situation a spillover argument for lack of time but i think it's a very strong argument and basically that's our argument for reversing another argument for reversing the conviction on the simonis murder because the two the two of them the two errors spill over into each other very strongly but also his remaining convictions for example on the drug conspiracy there's so much i frankly am surprised that other people didn't raise hell over issues maybe lack of space but there's so much spillover prejudice in this case against all the defendants because of you know the what was it forty two different murders that were mentioned only seven of which pertain to these defendants but you know they got all the murders from the first group one trial which resulted in the more appeal comment and not only that but the the huge amount of prejudice from all these for for be issues which i just want to say even though i did work on the for for be issue two i've been out i've been a prosecutor and a defense attorney in federal court for thirty over thirty five years i've never seen a case this bad with respect to the forum for be issue this is this was it as we said it was tsunami of which occupy at least half of the trial the four from b and none of the rules were followed by the drudge you know the the argument sort of focused on his jury instructions but but we we didn't even list all the four for be evidence that improbably came in because again space limitations precluded it but i had a draft which which had a lot more for four b evidence improperly admitted and it was all am the most outrageous thing of all was something the government did it said before trial it announced we have no formal for be evidence judge that's why we're not giving any notice because we don't have any well it seemed how can they say that i mean it just boggles the mind so i think that's a great issue and i hope  supported by anyone who at first hand knowledge of the murder of thomas second of all it was made after the fact two or three years later and finally again there is no evidence said james alford had prior knowledge of the plan to kill thomas and the case law requires prior knowledge not just him finding out after the fact that thomas had been murdered as opposed to something else  without confrontation cause violations without macgill revealing his son bill and yelling fifty thousand watts before the jury begins its deliberations right before they walk out the livery without the jury being told that all the great one defendants were convicted by another jury of the same conspiracy without these outrages playing book or even on closing that made all of the fence evidence and all the defense attorneys or even radio active without the individual issues that all of trial is unlike anything any of us have ever seen and i suspect anything you've ever seen you can reverse thank you this is a complicated case with three many issues and the court appreciates this the work of counsel from those eyes and helping