that in my opinion or not raising my opening brief and i apologize for that in addition when i included the claim in my brief i did not include a statement of fact the beginning of the reply brief i only included in the argument section for that i apologize  the court house or not to penalize my client for miers and despite my right to believe this court still has discretion to address the claim the error on my part is similar to the one that was made in us to be all of nine seventy six five second else to use a gun during that robbery and no one ever testified that encourage them to use a gun during a robbery or after the robbery that was the extent of the evidence and how for this i believe this case is indistinguishable from even though the defendant was present for the planning of both those robberies just like the defendant here including the jury under robinson who was one of the four cooperating witnesses to testify testified that in an issue that his and during his initial interviews with the government he gave conflicting statements because he was afraid of mr davis  this atmosphere of fear intimidation that was not limited slowly to the witnesses the same day that andre robinson testified there was apparently an exchange between members of the gallery and a court security officer because the members again were trying to board an elevator that contain jurors apparently was no angry exchange the court was a form and the court was concerned enough that they had mohnish the gallery let the next day inform that there should be no contact with the jurors the day after that and then it's not clear exactly when this happened if it was the same tears as the next day it was brought to the court's attention to have been answered in the parking garage one of the jurors as they were trying to leave the building felt that the people ahead of them were not leaving fast enough and appeared take an interest in her and she was concerned about it other witness with the incident was witnessed by several jurors and she discussed it with some others as well eventually the court decided to hold a hearing to determine where the jury had been intimidated that hearing resulted in th believe that that was an error on the district court's part that requires this matter be remanded and that part of the reasons i feel this claim is so strong is because as the trial went on the theme of fear intimidation continue jukes witness the government never should have called because he had given up eric's use of the government never should have called prior to his testimony it became clear to everyone based on my review of the record that he was not going to testify in the sense that he said the four people participated in the robbery row but he never named angela davis was one of those participants true but he when he did he did supply the evidence that there were four people involved in the robbery well he jury it's still it's still air i mean when you we review the whole manner of testimony the theme of it is clear the manner of those questions are phrased he repeatedly asked were you afraid of being able davis and it came through again and again and again and this and in light of the other information that happened part of that it was one of the what was the basic primary purpose of the government in calling the witness case well that was a perfectly legitimate question i would disagree i find i don't understand what why you're disagreeing that it would be a legitimate question if he had been properly called and if he was a proper witness to be asked these questions i thought your objection was that they only called him in order to impeach him and that that was not proper and that they wanted to bring this out about fear which they couldn't do because they were not allowed to call them what was the how do we know from the questions of the purpose was a problem that's that's your problem but spelled out the purpose was improper how do we know what the evidence the evidence was the his attorney specifically stated when they when they talked about what you're going to testify to prior to his testimony that he was not going to testify consistently as this prior statements at which point he obtained immunity for his prior statements it was improper for the government to way that from his two previous statements one in one thousand nine hundred seven and another in two thousand that may be different from the way he testified in those prior statements that's very ambiguous and very big as to what he was referring he had no idea what mr tooth was going to say we assume that once he's under oath he's going to tell the truth he asked with immunity for the previous two statements that was given to him we expect that he would testify truthfully  consistent with mr robinson it was important for the government to corroborate the testimony of these two individuals and mr chips did that he came he took the stand he said yes there was a fourth person involved i'm not going to name him but he was six foot tall slender and i don't know his name he also testified that yes i did tell a lie the first time my role was not to drive the call vehicle i drove the hot vehicle i drove the stolen van and supporters were there every day and this if you read the transcript you get a pretty good flavor everyone was intimidated by the presence of forty or fifty individuals dressed the way they were and when they came the court and i want to draw some distinctions between edwards in this case it edwards and the first of all the standard review and edwards it would be a timely objection therefore harmless error standard apply here davis made no objection therefore plain error applies the factual distinction in your words is that the prosecutor in that case was an individual found the critical piece of evidence is that the blackening in the bag that connected the defendant to the bag that was the only linkage prosecutor's not going to take the stand that is classified that he did say those things to him in the present the prosecutor that if i can understand asking an agent about it being in his presence with the exact point of injecting the prosecutor hard hours life liberty freedom most and nothing was we can be assured in our society that we can go about our business without being threatened and intimidated is it proper for the prosecutor to say we you and outside of the the court room and whether or not that affected them and i want to just touch on that just briefly the question the court asked and it can be found on page seven forty one is there anything that you observed outside this court room or heard outside the court room that would affect your judgment in this case as a juror heard that could affect impartiality because if the quote was concerned about asking a more direct question because of these incidents you should have been intimidated and that was not the role of the court wanted to take there and i think that the the law allows the discretion to the district judge to structure the questions in a manner that can preserve the impartiality of the jury and for that reason i believe that that particular issue should not cause any any reverse on this what what it was was chooses the attorney mr harrison came to court and raised the issue of whether or not he is entitled to a sort of fifth amendment it wasn't a question of objecting to his testimony is whether or not he would be have you and the second robbery mr robinson back was turned people bought the gun he couldn't get it by which one brought the gun in the third robbery mr davis used the gun himself in the fourth robbery mr gates again used the rob use a gun himself in the first robbie did the same thing so the accounts for exactly the second of the five robberies in sequence mr davis clearly intended to assist and aid and there and then picking them up after the robbery had occurred that's just a just a brief after summation i would do i would like an opportunity to breach that issue your  sixty for the record mr harrison said the liability is that his testimony today will be different than his previous testimony in what if by the testimony he meant his previous statements in light of that in light of the fact that shoots was granted immunity for his prior statements i don't know how anyone can claim they believe he was going to get up there and hear those statements and drag testimony there's no objection but the clients there's no objection so after chooks testimony is done the defense moves for a mistrial based on troops testimony claiming that the government had called them for examination was done and i'm not entirely sure but it seems to me that the attorney was unclear about whether this was actually claim based on my review of the quality that you have the court that being said however i do not believe was because he was afraid when you read the transcript it seems clear to me that he did not want to be an investigation of a defense attorney and being forced to testify against his former client he felt that that would be bad for his reputation and i think that it's important to know something that the the hearing and examine the jurors you know the basic questions of do you feel you can be fair impartial is not enough especially in this case where you had two incidences of jury tampering i believe the one on the elevator as well as in the parking garage i understand there was any tampering on the elevators these guys wanted to be on the elevator and they said no you can't well but apparently there was in a lot of them and some jury tampering well because the court described it as an angry exchange between a court security officer and one of the gallery members yes in light of the fact that we now know that most people were coming into the integer into the gallery with the same color clothing i mean they had been instructed to gather have been instructed not to confront the jurors i mean most of us when we get an order from a law enforcement official obey that order if someone challenges an official and there are only one reason why why why they would challenge that to try to send a message to somebody else and the only people on this elevator besides the court security officer with the jurors and then we have the incident the parking garage and jurisdiction of the jury was just missed but sure to also said when she was questioned by the district court that there had been a general sense of discomfort among the jurors in light of that