in all cases due to circumstances beyond anyone's control judge thompson and judge karen will not be present in the courtroom this morning judge thompson will be fully participating in the decisions in all of the cases this morning so if you've tailored your arguments toward judge thompson go forward and do that judge baron will be participating by phone so it's very important that you pay attention to the microphone because that's the only way that that he can hear you put up it's that's it judge baron are you with us right to be tried by a jury free from ethnic racial or political prejudice or predisposition about the defendant's culpability i do think in this case what it really boils down to is whether or not there was in fact person closer in this case the judge who stayed found that there was however that we believe this plane there are clear air review under clear air review we defer to the district court's findings unless the record on speculation in this case there were five witnesses that were called by the appellant who consistently testified that they were told that they cannot come into not everyone could come into the court room that is a partial closure the other parts of the other parts of the analysis remain intact in the sense that all this court has to find is that there was clear error with respect to that finding just the numbers right  closure the difference between the partial closure and the full closure really comes down to whether or not a substantial interest was involved we don't even have to get to that because there was no thought there was no wall or analysis the judge was not informed of the closure and that was one of his findings that no one said anything but i find it interesting because if you look at the other cases especially in even the attorneys didn't object in that case because they thought that in fact was the policy and that's kind of how we got here today because went wrong came out and made clear that in puerto rico in the district court the default rule was that jury why their process was closed now comes down to who said consistent was what was said with regard to whether they could come in or out and the fact that some of them didn't remember what pants color there was some of them didn't remember what their their hair looked like it's really of little  value because you know these these gentlemen were in uniform uniform is uniform any they don't really stand out what we do know when this is actually from judge to stay is that they were secure other security officers that were present there that was also part of the security plan and it's important because even if the court room and this is from the grown quoting went even if the courtroom was closed because of inattention by the judge courts have expressed concern in the past court offers officers the right closure of a court room impeded public access and this is critical that the courtroom closure was  judge rather then and affirmative order is not dispositive what matters is that the public with bart and that's what we have in this case let me ask you this you you mentioned the credibility determinations with respect to folks on the side of your cause here let's say i'm in i assume that you agree that those sort of credibility determinations are typically  given great deference but let's say that that there was no question about the credibility of those witnesses is there any question about the credibility of the witnesses on the other side those who said that there was no closure one in two if we end up in ek will poison then where are we at serene first about the other side there were two witnesses that were called by aspects of the courtroom he was not recognized by the five individuals who testified and the judge judge tuesday actually use that against them in terms of their own credit terms of their recollections but in fact that he wasn't there all the time he wasn't outside all the time he wasn't at the door all the time he actually had a microphone and he was taking notes over to the individual jurors a couple of the individual witnesses for the defense indicated that security officers are part of the system that had a default rule that it would not be an open trial to be identified as the marshals who were the no and that was the problem here and if you look at the record they defend they  not have the names of those officers and this is what i think really makes it critical distinction here which is that not one of the marshals who was on duty that day was called by the government they have access to the names they have access and if that all important day made that clear in the record and that was problematic around it because those individuals could have said that and one of the things that you find with respect to the testimony first of all the clerk only indicated that she thought that that she believed that the door had been opened and that no one had been barred but she wasn't out there she wasn't the one sitting out there she wasn't there when someone told her these individuals whether or not they could come in so you don't have to find any of the witnesses all this government side to be incredible all you can find if they don't have personal knowledge as what was said and the interesting thing too is if you look at the testimony when you look at what was said there was no there was no indication that they were in fact in the courtroom so the officers the c s o officer or the clinton say oh yeah i remember him being there during jury selection he was sitting right there next to his wife or i remember that you know  was in the courtroom as well none of that testimony was really what you have it's almost two universes you know the inside of the courtroom universe and you have the outside of the courtroom universe and the fact is is that even under in the system but not necessarily under mr under judge who stays rules what i think it really comes down to is i think judge tuesday was so upset that something like that would happen and he wouldn't know about it and he basically told and you know when i'm quoting from one six three one of the appendix and you know that nothing is going to happen in this courtroom if i don't know about it or if i am not aware of it i'm not involved in it might be if you're on it which i think explains why there's clear air with respect to the findings that judge who stay made is that him it's inconceivable that a security officer would say what they said if you have five witnesses against that and just to stand with on the bench and yes he wants to control his courtroom let me help me test my recollection of one one part of the record i i thought that there was testimony that three benches were reserved for but that now that seems inconsistent with a statement that only one family member could because it wasn't about him your honor it wasn't about those no but why would you say there why would you have three open benches and then say only it seems inconsistent because the inside of the courtroom wasn't dictating what was happening on the outside of the courtroom what seems to be apparent is that that was a rule in default policy in a sense that an officer of the court who appeared to be a marshal who is described as a marshal was telling these individuals without actually knowing whether there was room because that wasn't the issue it was this was a high risk trial it was a trial that that you know clearly there was some concern and the fact that you come into that talked about that but that was only in the context of a post conviction twenty to fifty five ineffective assistance of counsel because here you have where it effects the the effect of it is affecting the  partial closure and a full closure and the issue of the two of those with respect to the first circuit has to do with whether there has been a substantial as a substantial risk that's what changes it is the type of risk since we don't even have to get there under whether or not there was a wall or hearing and a finding it still stays with the structural nayar analysis the mound interest where there is a substantial interest which is all you need to do with respect to have an overriding interest those are really that the differences between what happens if you have a partial closure or a full closure but in both arguments it's really not it's not for one appellant or the other my client joined for example seven of the eight arguments are danced in the briefs and in that in the time available i hope to touch on four of them that may be overly ambitious that is the the excessive and unnecessary use of gruesome photographs and a display of firearms in the courtroom the denial of new trial under rule thirty three  one the jury instruction mistakenly identifying firearms as a form of racketeering activity and as i am here filling in for miss choir who may today be delivering her first objection the trial court admit more than sixty photographs of dead bodies the judge himself the trial judge called these photographs brutal grew some unbelievable those were the judge's words we have included color reproductions of these exhibits in volume four of our appendix so that you can see for yourself typically ten were admitted of each crime scene and between two and four for each autopsy they were not limited to victims in particular counts of end of the individual murders that underlay some of the vi car counts but and in fact included in some instances victims not even mentioned in the indictment that's how tangential to the some part of the trial some of it was these photographs were projected in the court room not  treated discreetly on top of that there were forty or more photographs of weapons that were allowed to be introduced all over a direction and a physical display of numerous dangerous firearms in the  court during the prosecutor's closing argument as well as showing the gruesome photographs again this is the epitome epitome of what rule for all three was designed to prevent allowing this evidence quest were seized from my client was rivera at the time of his arrest for months after the indictment had been returned and never shown to have been involved in any of the charged crimes so the firearms were not shown to be intrinsic as judge which they ruled alternatively on this objection nor did they meet the criteria of proof or afford be for modus operandi evidence which was the other justification the the judge broached that is to say there was nothing unique about sadly nothing unique about these kinds of weapons in a case of this general kind in choirboy and comments like that that have absolutely no place in this kind of analysis so this avalanche of unfairly prejudicial evidence could not be deemed harmless by any measure the government's direct case is cooperating witnesses their credibility strongly attacked on cross examination in every respect well you're not saying it's not harmless because sixty photographs of bodies and forty of the guns is overwhelming it's overwhelming it's not one or two to the extent it's helpful to the coroner to explain the wounds or only fair to the prosecutor who doesn't have to give you know the sanitized no i understand that but about a story but if some more limited number makes the point and are relevant yes then how is it that the additional winds take from harmless to harmful you know in a material sense well defense counsel also proposed at sidebar that there were additional photographs that were less gruesome less bloody that could be used instead judge responded show them to me she didn't have those photographs with her from the discovery as if to say well you decide what evidence to use against your client and if she didn't then you said well then you it would seem to me that some pretty gruesome photographs would be relevant would be admissible would not be unfairly prejudicial that then i'm i'm having a little trouble one harmless and i understand so we don't even if there was error we don't shirk from saying it's an abuse of discretion standard and there's a point at which it's up to two or three judges of the court of appeals to say we can't say exactly where the line is but what happened here is over that government did not overcome and has pointed to nothing it will be challenge in the briefing to overcome the principle that the conspiracy is deemed to come to an end when its leaders and members are indicted  incarcerated and there's no of some of conspiracies to continue after indictment but there was no shelling that this one did they they have entirely a circular argument on that their only argument is well he had weapons with him when he was arrested there if i could take my remaining minutes on which to move to other arguments the motion for new trial this i try to do this very quickly rule thirty three b one imposes a strict three year statute of limitations which we satisfy when we filed this motion by less than a week and we so we submitted it with the motion the indications that we had then that there and our reasons to believe why evidence justifying a newly discovered evidence justifying a new trial existed and we admitted that this was not what we had in our hands at that moment would not be sufficient and we sought discovery and further disclosures and ultimately we would need a hearing but all the all of our opportunity to develop the record was denied by the district court's rulings so on appeal the government now faults the defendants by arguing that we are unable to prove the case conclusively f it having had a hearing but nothing in rule thirty three requires that you have a winning case at the moment you file the motion only that you were in good faith believe you will have a meaning case after the process of let me get in the motion is concluded the government now claims for example that the affidavit and testimony of young you are a who's the witness whose testimony changed was hearsay well of course it was it e told me how people interest he's describing his participation in crimes and in fact he's changing testimony that he has as a cooperator risking his own implicating himself in the criminal enterprise for you are showing himself to be a trusted person within the enterprise whom others would confide in and discuss how the crimes were committed and by whom and why i have absolutely  the the third point i want to touch on is the is the jury instructions so here the trial judge committed in the jury instructions in this case exactly verbatim the that when judge who stay made this error it was not an isolated slip of the tongue but rather a legal ever on his part about what constitutes racketeering activity because here you have in another case of the same legal character he makes the same error so just as the panel in and i think it may have been judge baron writing in that case found from inferences from that record that it was slip of the tongue here we have conclusive proof both by reference to let torii record our own record showing which we've quoted carefully in the brief that th it's the very same error and requires reversal on planar review for the same reasons as in law tare on all at least all but counts two and three which are the only counts that don't have an element of racketeering activity in the well if i recall the government says that there was plenty of evidence that would support with respect to the other violations anyway so we don't need to worry about this  even if it was error or you would say again that the that the most of the evidence is cooperate here so it doesn't fall within the overwhelming realm is a do i have that about right rely on the weight of the evidence the evidence has to be overwhelming and one contradicted overwhelming and uncontested and they do not have the end uncontested part here was hard harsh hotly contested throughout the trial but what i would also say if with respect transparent in the context in which it comes up i think this goes back to you know some of the supreme court cases of not ever in the perjury jury instructions  and the issue more materiality element and the point was that whether the statement was material or not was not a controversial issue at the trial it did i mis i'm trying to make is that if you were preserved error the government would have to show it to be harmless beyond reasonable doubt and i understand it has that with the burden flipped in the to show prejudice in play never setting the functional three instead of two alternatives given to the jury to justify a conviction one of which is legally invalid so the jury if the jury may have to rely on the jury the jury's assessment of the weight of the evidence doesn't not the government emphasized the firearms throughout the trial he introduced the forty photographs physically laid them out during closing argument that they valued very much that these guns had been seized from my client at the time was arrested tied him personally to the guns if the guns could be tied to the crime which we sent him weren't on this the jury was invited quite vigorously to depend to rely on the firearms which is the improper basis as the basis for their connection point circuit precedent is the very same search was the basis for a reversal in ramirez rivera a trial that arose from a group of sefer defendants in the same indictment and  one of those defendants was the homeowner where the search occurred so the government is left to talk argue only the contention that  standing to challenge this search and that that that argument is just clearly wrong for two reasons two related reasons which are covered in a stasis brief one is and this is not the so although they try to talk about it has on it an overnight cast a situation where maybe he didn't have access to every part of the house you know if the government very theory about what was going on in that house at the time of the raid is that this is where  was living he was where he was living as a fugitive that he was being harbored by the homeowner and the home owner stanley the i'm the fact that he was also apparently the sometime boyfriend of one of the daughters of the homeowner was not the main point who was sometimes allowed to stay over in the house the point is he this is this was where he lived at that time and so there's every reason to think that under the circumstances where he was being harbored in that home that he had full access to the home so the government is not saying that he wouldn't have standing anywhere but that well these drugs were seized from a bedroom that was not the bedroom where he was sleeping and those you know the guns were the drugs i forget which were hidden in the car in a car in the garage but if he's living there like a member of the family then he has the inference is reasonable that suppression should be reversed just as it was in ramirez rivera and all of these defendants conviction should be reversed and remanded for a new trial judge very further questions at this point error basically what you have in the right on the record is you have the testimony of two when this is brought by the government that say there was no closure in the courtroom and you have several when this is from the  saying that some of them were able to come in some of their family members were not able to come in under the plane or when you have two competing versions there can't be clear and obvious error and that's what we have here so they won't be able to satisfy that element of playing error when you look at their briefs they failed in their briefs to argue that they were prejudice as well they fail to argue that it affected the fairness of the courtroom proceedings so we submit to the court that they have waived this argument now as to the argument of structural error your honor  shown is that for structural error you have to has to affect the framework of the trial and in this case the framework of the trial cannot be affected because even if we were in a court were to find that there was a parti there was no deprivation of the defendant's right to a public trial which is what has been found to be structural error the complete violation of the right to a public trial there is nothing in the record that shows that there was a infringed as to the admissions of unfairly and pretty additional demonstrative evidence starting with the photographs the defense has argued that the there were credibility issues in this case because the case was based on cooperating witness and as the court is aware at the end of the trial the jury is given an instruction that they have to take their testimony with care these photos that were presented in evidence corroborated the testimony of the cooperating witnesses as to how these murders went about it corroborate also showed association because as a core as well where we have to show that the that the sure we're part of an enterprise and these photographs when you look at them it has multiple bullet holes which shows that defendants will take turns shooting at the bodies of the victims and this goes to show association and it also goes in some instances for example is shows up around the i mean this gang was known for erasing faces defendant leave and i was known as the face in research and in fact the photos showing with people with no faces because that's what he did he race faces so this is this evidence was completely relevant to show and to corroborate the testimony of the cooperation w well as the crime scene technicians and forensic pathologist that testified at this trial based on his present that we would submit that if the if the court were to find that it is unfairly prejudicial it is harmless because of the amount of evidence presented in this case which includes just before us here either is that the government's position that all sixty photographs were necessary yes yes they was there was no risk of unfair prejudice whatsoever we submit that no because these we can't look at these photographs in isolation we have to look at them in the context of this trial and what this trial is about this is a gang case pretty much the most brutal gang that goichberg rico has ever seen and the type of murders that they committed were brutal murders typical murders that you would see for example in the cartels in mexico because they are leaving a statement when they commit those murders of intimidation so they were not unfairly pretty additional because they didn't pay it what in fact they committed which were brutal crimes and these sixty four aggress out of hundreds of photographs that we had for these crime scenes and there were multiple crime scenes in this case because we proved not only charged murders but we also showed uncharged murders but that nonetheless were o the rico conspiracy did the government proffer any photographs that the judge determined should be kept out or they all admitted i don't remember  and there were some photographs that would be close off of the actual body of the victim but that wasn't the focus of all the photographs all the photographs weren't shown just to show how the victim looked up close there are certainly some photos of that but that's not the only purpose and those photographs were used by the crime scene technicians when they were describing the crime scenes and some of the photographs we're talking about the forensic autopsy these were used thought there was error in the inclusion of that many photographs of this nature in the case opus of the weapons and that's the murders but how do you respond particularly to that correlates with the argument that it was harmful that the defendant is making which seems to rest on the fact that all of the addition to that you would have you had ballistic evidence that although you can't have the actual casings to anyone through sarah logical analysis you can nonetheless schol the amount of firearms that were used in those murders in addition to that you have to bernard who's who was convicted of shooting down the helicopter you have you have d n a evidence because the firearm that we  argued was used shooting down the helicopter was a blood stain next to it that matched and so in conjunction our argument is that it would be harmless based on the amount of evidence in this case i mean this is this is a lengthy trial where we present multiple witnesses i think serial i think over fifty when this is in this case and we that was corroborated through each other through the crime scenes through the photographs and through other physical evidence like the firearms and some drugs that we were able to seize and show to the to the jury  moving to the next point to a jury instructions on firearms racketeering if you look at the record throughout the trial the court continuously what the records hearing acts in this case were murder and drug trafficking in two instances he mentioned firearms the jury instructions that were given to the jury the reinjury instructions  contain firearms in them but more importantly the government in opening case in chief closing and rebottle emphasize that the two record tearing acts that we were that our case hinged on was murder and drug trafficking now unlike going to gottschall in this case you have much stronger evidence of murder and drug trafficking that in a lot of gotcha case which by the way i also tr and it was a much weaker case in the sense that he had it was just based on robberies and drug trafficking and he was a lot less cooperate and i lot less additional evidence that we used to corroborate those cooperators but more so the jury in this case made a finding that all the defendants were guilty of murder and drug trafficking because they were all charged with these events and they were convicted of the drug trafficking  set of circumstances here is the jury had not been given the erroneous statements as to firearms they would have still found that the defendants were guilty of motion to suppress as a court pointed out it is der burden to show standing in fact the case law is that even to get hearing on a motion to suppress it is the defendant's burden to show standing and in this case mr asked us to speak on how to show that he had standing in two places in an empty bedroom where one of the firearms were  vehicle that was in a carport in the carport of the residence and the drugs and firearms were found in a hidden compartment in that vehicle there is nothing in the record that shows that mr are being all had a reasonable expectation of privacy in any of these two locations and it was their burden to show this is the burn and wish they did not fulfill before th while he was a fugitive for the helicopter shooting he was not a resident in that house and we disagree with the defense's characterization of that these but what's the authority for the rule that you're stating that if you are an overnight guest you that they had access to the entire structure but here i didn't have the sense that that was the situation it was that he he qualified as as more than an overnight guest without any limitations that i was aware of in terms of his access to places so why is the burden on him to have to show that he does have that kind of access yes your honor in this case we disagree with the defense's characterization that he was more than  overnight he was in fact an overnight guest who stayed several times but only as overnight in fact if the court goes to the record of the suppression hearing the court will see that police officers testified that they had to police while he was wanted for the police helicopter but the only the only thing is that he stayed several times but he was not in overnight guests he was and staying there on a continual are there is nothing on the record that supports that he was staying there as more than an overnight case as they more than several times this is isolated incidents while he was being wanted for the police shooting and that's why we're saying that he's only staying there as an overnight guest and he has the burden of showing that he had a legitimate expectation of privacy in areas that were separate from where he was staying in an empty bedroom he wasn't staying in the bedroom and in a car that was in a carport and  by the owner of the house was is my inclusive promise so they're trying to say that they have standing over all of this when he goes in and they haven't met their burden of showing that he in fact is it what is your response to the argument that there's a mismatch between prosecuting someone for harboring and the overnight yes yes we would submit that there is no mismatch because you can harbor someone with one instance you don't have to you we don't have to show that you harbor that he stayed there for a long time or that he was more than an overt  ease my inclusive almost for harboring a fugitive and i believe that the statement of facts there is uses the word several times and there is no suggestion in that statement of facts that he was anything more than an overnight  didn't proceed on the theory that he was anything more than an overnight perhaps i'll go in reverse order the on the suppression point the only direct evidence of the witness saying that he left in the morning is strikes me as pretty silly almost almost silly very weak on the government's part i leave my own house every morning this is no evidence that i don't live there or stay there more importantly judge referred when the when the defendant's attempt to advance her own client's position and make her own showing interest and i'm going to rely on what judge smith said and i think it was the prosecutor who said well standing isn't necessarily the same for the two defendants and  on the gruesome photograph point this actually is interesting that my friend the stress of it would bring up the race in the face point because this is the issue that is parsons was going to argue if you have enough time that is judge the comments by the trial judge has interest interjecting and commenting and showing his emotional involvement in these facts focused on that fact and he brought up that phrase himself with witnesses and asked them questions to get them to repeat it over and over again emphasizing that point in just the unfair way that we point out in our briefs the cautionary instruction which the government references at the end was remarkably we focus on this in the brief it was short and we can certainly not designed to negate attempt to bolster the case by saying that the cooperators were mostly consistent with each other and then finally the assertion that the war between lott what i knew and their own pain was rivera's attorney objected to the firearms saying they're not intrinsic there and they don't qualify under far from i mean when the prosecutor didn't say oh no that the conspiracy was continuing and here's how we can show it it's an assertion which is completely outside the record and then finally on the public trial question again from when we talk about an insubstantial partial close closure where you have to show prejudice the cases that use that expression are to cases about we are jurors are taken to sidebar and allowed to talk about personal reasons embarrassing facts or other personal reasons manage just the sauce of course of why they should be excused from jury service and and when that occurs either in chambers or in roping room or at sidebar of the cases are clear that that doesn't constitute a partial closure of the courtroom that's not the kind of partial closure repacking about here what we're talking about is a marshall saying according to many people that we're in the hallway outside the courtroom only one member of each defendant's family can come into the courtroom at any one time and other members of the public are not invited and so and in that kind of situation the prejudice is exactly like that of a complete closure that is you just can't show it affects the fairness of the trial but if the facts is the fundamental principle protected by the public trial clause of the convicted on a separate account of conspiracy to distribute drugs that's no that's true that's true it's a distinction between the cases it's not a strong cases like current but it's the same but anyway they could but i don't really have it that you have that enterprise by virtue of those particular offenses which is not implicated in the convictions on the separate counts if they ok and then one other thing which is  case one of the other but it does calm the puerto rico statute other than having a weaker intent requirement in the definition of intent tracks typical american common law murder first degree murder requirements by using the term premeditation and malice