and attorney texarkana now represented bobby hampton at trial as well as mr harris is a u s attorney we were both once we tried this case there are two issues that we have before you this morning one is a sentencing issue and one is an issue that occurred at the trial i'll address the sentencing issue first because i don't think it will take very long the issue that was before you in our brains was whether or not arkansas state court conviction for residential burglary is a crime of violence that would members were peremptorily struck by the government during the jury selection phase i made a bet in objection to those parker challenges specifically to jurors twenty two and forty five and i just named them those in my brief rather than yours in their proper names after i made my bets and challenge the assistant u s attorney had given their reasons for doing so and i just quoted straight out of the transcript their response was as to these two specifically after talking with them in for daryn observing them they had negative body language arms crossed some of the time just not very responsive to us basically they had negative body language and that they didn't say anything of course during our twenty two had had a bench conference with the court if for some reason the transaction of the conversation between juror twenty two in the court was not recorded but nonetheless that the court did explain to us that the juror had explained that she had a pending civil suit against wal mart and didn't want the other jurors to notice how out the juror to suit correct and what was the reason that was given the non racial or non discriminatory purposes or for that the reason that the united states gave was negative body language arms crossed some of the time just not very responsive to us and that was for both jurors twenty two and forty five  bit more to juror number forty five in the prosecutor's explanation that it was worse then twenty five to make that explanation that they're there negative the whole time arms crossed all the time and why isn't that additional explanation distinguishing between twenty two and forty five but enough to legitimize the ruling of the district court just that i don't think it's distinguishable enough between twenty two and forty five that and i understand body language may be a race neutral reason but that they had the same reasons for jurors and disallowed to the prosecutor say as to twenty two that she had never looked at him would look at him in any respect which seemed to be how he characterized juror forty five to made their explanations for both were mor implausible or clearly basically nearly absurd yes or i understand that especially when i when i get appeals and i have a piece of discretion standard i know i've got a rope and and understand that the appeals courts are pretty deferential raise another argument in your brief right about how the other other jurors were treated or are how they were and asked questions and which ones were asked did and i had to go back and make that statistical analysis of corpses of the brief and i think that's where the government came back and said that would be clear if i didn't bring that up to the t if i didn't preserve that issue properly would ask the court at least i'm clear on that one as well and is that is that how you agree we should consider that you think about it purely that the district court did not have an opportunity to consider those factors  you believe that the plane air standard would apply in a situation where you in fact raised the issue or at least the discussion took place about other jurors did not answer questions as well or do you think  that somehow going through the record and trying to quantify it changes its character i don't believe that i think it still would be the abuse of discretion but i'm required to make a my name is david harris arbor represent the united states and i along with much trial counsel or co counsel have tried this case the issue before the court is whether or not the district court committed clear air and then nine hampton's bats challenge to number forty five i submit clearly it did not to put things in perspective i think it's important to talk about the number of jurors that actually responded to any of the questioning by the  court or the lawyers based on a review of the record of the twenty three questions posed by the district court only four questions drew responses from the from the panel all the questions they were posed the attorneys whether it be the prosecutor or mr harrison only two identified jurors responded to questions therefore in any case the lawyers are required they have to look at the jurors body language to make determinations of whether or not they're going to strike those individuals that's exactly what we did in this case we struck twenty two forty five and twenty seven which i would note was white twenty seven was struck in the became moot when we offer race neutral explanations for the jurors twenty two and forty five our nischelle response was was lumped in together because we address both of those jurors and we said that it was negative body language twenty two and forty five had their arms crossed and they were not interested in the proceedings as that's a said essentially what was said the court focused on juror number twenty two and said i didn't see anything from twenty two and we responded well there was a side bar that the court had with twenty two and the lawyers were not privy to that side bar that caused us some concern as well and that's in the record we express that with the district court  with respect to forty five forty five and this is reflected in the record was sitting right behind me i was looking at her the entire time she would make contact i contact with me argued that i negative body language as demeanor that would be inconsistent with warning someone that wanted to serve on the jury in so that was an additional reason why we struck forty five not a believe the record also says the forty five  the body language that you're watching the demeanor of the potential jurors is particularly important because not many of them responded to questions is that absolutely or are you how much time are you given dear and your district every judge perry's this particular judge is is pretty lenient in terms of how much time we have she goes through her questions which are pretty standard opportunity to asked ask direct questions to the folks who weren't answering questions you know we had sufficient time but you don't want to putting body on the spot and most of the time it's been my experience when i ask questions i get asked fifty questions most of time unless i call someone out as if they're in law school the turn going to answer i have to look at head nods if there are dissenters stated in those those elements contact those are all race neutral explanations and i think our case law is clear on that too we look at this differently when there hasn't been an effort to try to pull out answers to particular questions to give the jurors an opportunity so you could say you know right those questions the way they answer those little concerned not so concerned so we look at it differently no your honor i've never seen a criminal case where the lawyers really tried to pry into the jurors because you don't want to offend the jurors you don't want to put them on the spot now sometimes that happens but from my perspective that's not what i want to do and when the defense is asking questions from the jurors i'm sitting there along with my co counsel and we're taking notes as to how they respond nonverbally i mean there's a difference in a juror not saying anything and a juror display negative body language big difference and that's something that that should be distinguished here you know just because you don't say anything that's not next necessarily negative sometimes that can be positive if you're just sitting there listening which most but sometimes it's it's obvious based on the body language that either they can't be fair they're not interested they don't want to hear this case and that's is for obviously you cannot strike somebody based on their race but batson also talks about a criminal defendant is not entitled in whole or in part to persons his race peer reviewed any psychological literature indicate that that type of expression from a potential juror is likely to be negative for the prosecution no your hon it that's been based on my experiences fourteen years as a prosecutor and trying cases and that's and i have to have it ready psychological literature on that their human behavior reasons for being uncomfortable with eye contact besides indifference or prejudice if that were just one factor that would be one thing but you have to take it in totality and look at how the jurors are responding whether it be the arms crossed head down those are those are things i mean it's not exact science right but you have to make those determinations based on what you have well you've just described a cultural response that is entirely appropriate for every native american person in the united states that when they're confronted with a person of authority and power they have a natural blocking movement and they divert their eyes down because it is culturally inappropriate to confront either a father figure or an authority figure and you know i think that there's more to life i mean i think if you're going to go by your gut you should you should expand your worldview because i'll just tell you that what you as a person who who presides over indian country cases all the time you describe how  three fourths of the jurors who are native american over the age of forty to a t be struck them all it would be an inappropriate race based determination in my opinion but in any event i can't respond your honor you ma other jurors we didn't get negative body language from twenty seven we did twenty seven happen to be why that wasn't addressed so you know you have to look at you you have to make those decisions based on but if they're not talking to you if they're not answering the question if they're not answering the court's question that is the only thing you have to look at in the in this circuit and the supreme court  clear on that and when we brought those factors up the defense didn't even robot that the response was quote obviously they have more so i didn't specifically see this  just very briefly me let me touch on the second issue i understand this court in sam's has ruled against us on that i understand that decision is  rebuttal really rebuttal in this case mr hampton had filed a it's not really a brief but it was a process a filing for him to the court to consider other issues i've made a reasoned decision not to including those issues  the breaking that i had after going through them all but at least if the court had or any questions or comments about any of those i'm happy to address them there would be mainly it was he was not particularly pleased with your for your presence here today the arguments